futurehead

Big Idea: General Rules

I tend to latch on to a few big ideas and think about them extensively. Sometimes they are cliches that I see in new lights, sometimes they are basic insights I gradually piece together, sometimes they are insights that I stumble across and which hit me like lightning.

Of the latter, one of the biggest ideas I've come across, I encountered in grad school in a great book by legal historian Morton Horwitz, The Transformation of American Law II. Stated simply, it is that:

General rules cannot be applied to particular circumstances without the use of discretion.

This may seem puzzling at first blush, curious at second, and obscure at third.  But it has enormous implications. 

What it means, basically, is that because general rules can never cover the vast variety of unique circumstances that crop up in real human life, applying those rules to a given case can never been done objectively or automatically – there’s no escaping the need to use judgment. No algorithm will be sufficient, whether that algorithm is applied by a computer, a bureaucracy, or a 19th century judge.

In the 19th century, American judges often envisioned themselves as kinds of computers or automatons, with the job of impersonally applying the law to individual cases, with no room for personal judgment.  As Horwitz explains, it was a group called the Legal Realists who challenged this naïve view in the early 20th century.  Today it is conservatives who cling to "procedural justice" over substantive justice because they view discretion as a morass into which they are afraid to venture, who fail to recognize this big idea.  Thus a man like Antonin Scalia will send a man to his death, despite a drunk defense attorney, clear evidence of innocence, etc, as long as all the procedures were followed carefully in his conviction.

This idea explains what is wrong with sentencing guidelines that remove discretion from judges, the concept of "zero tolerance," any system for rulemaking that does not include a right of appeal, Scientific Management, or the idea of any kind of science of government or management, bureaucracies, and many other things.

However this reality poses a serious problem for the concept of the “rule of law not men.”  How can the law be applied fairly, impartially, and predictably when we recognize that judges (by which I mean anyone who must apply or enforce rules in individual circumstances, from actual judges to bureaucratic clerks to the cop on the beat) must use discretion to apply it?  What is the difference between a judge free to exercise her own discretion, and a dictator?  How can businesses and individuals act with the confidence that they understand the law when it can never be pinned down? 

This is a knotty conundrum of administrative law (but one that won’t go away by simply trying to sweep it aside, as conservatives would do) and of philosophy.  My view is that rules should be thought of like fractals:  they have an undeniable basic shape, and there are always points that clearly lie inside their boundaries and points that clearly lie outside, but they’re fuzzy at the margins. 
Fractal image made by Jay Stanley using Fractint

From afar, those boundaries appear solid, but upon close examination they dissolve into an impossibly complex, ever-receding tangle of branches and sub-branches.  And we must be alert to the possibility that even a point that appears to fall far inside or outside the boundary may not be what it seems.  Judges must work within the core currents of the law, but apply their own judgment at the margins (subject to review and appeal). 

This particular Big Idea will become increasingly significant as we move into the coming era. But that's a subject for another post.

The Mystery of the Nice Nazi

Having lived in Washington for 15 years, I have reached a gradual realization:  there is zero correlation between people's politics and their personalities.  To put it in more partisan terms, there's no relationship between how good or cruel people are to the those who directly surround them, and how good or cruel people are through the policies they support or order.  A man like Ronald Reagan, for example, was by all accounts extremely genial and warm to those who met him.  At the same time, he was quite cruel to the poor and others in the policies he supported.  On the other hand, a man like Ralph Nader has done a lot of good in the policies that he advocates, but in person is reputedly (according to some media reports as well as people I know who have worked with him directly) not such a nice character. 

You meet a lot of people of different political views here in D.C. (and unlike much of the rest of the country, people actually like to talk about their political views here), and it's inescapable that, despite the fact that today's conservatives support policies with evil effects (such as the unnecessary Iraq war, and appalling policies toward low-wage workers and the poor, the environment, and so on) many of them are excellent people up close. 

Like many, many people before me, I found myself a little disoriented, how could someone who is such a great person up close be so terrible in the policies they support?

This might seem obvious to an apolitical person but people who are highly politicized have a lot of trouble with this fact of there being no correlation.  It blows people's minds.  People expect that when they see a conservative politician on TV who is genial, that he must therefore be good in his policies too.  If he does not seem like someone they'd like to hang out with in a bar, they decide they can't trust him to run the country. 

I've decided that there are 2 basic explanations for this lack of correlation between cruelty of politics and cruelty of the person:

1. Imagination

Part of the answer lies in the fact that since politics involves mass activities beyond our immediate purview and experience, it requires abstract, theoretical thought, and therefore it is an exercise in imagination.  Since we humans are an imaginative breed, we construct all kinds of worlds to inhabit.  Although most of us are relatively consistent in our perceptions of the walls, floors and furniture that makes up our immediate surroundings, we go off in all kinds of crazy directions once we have to think about things outside our visual field, including wacky constructs like Libertarianism, Scientology, Free Silverism, fascism, Maoism, and everybody else's religion except yours.  It's not just Star Trekkies and Harry Potter-reading kids who are running around half-living in highly imagined worlds far removed from our everyday experience, it's kindof all of us.

When my dog is made to suffer, she does not ask the question, "Why am I suffering like this?  Whose fault is this?"  And then build up a store of hatred against those targets.  Her suffering is immediate, and once the immediate cause of her predicament is out of her sight, she accepts that suffering as just part of the universe.  She may lash out at the sources of her pain if she can, and avoid them in the future, but she does not sit around stewing and blaming the Jews, or what have you.  She lacks the imagination.  Yet we humans do.  Our imagination allows us channel our animalistic feelings into very abstract targets for blame -- in which process all kinds of unreliabilities can be introduced, to put it mildly.  So people end up being slaughtered in large numbers for identifying with the wrong catechism, the wrong form of the dialectic, the wrong branch of some ancient family tree, or for otherwise stumbling into a walk-on part as bad guy in somebody's imagined story of who or what done him wrong, or the world wrong. 

And there is no political view that does not involve the imagination, so while some of us may be more off-track than others, none of us can be sure we're perceiving the world correctly.  And who knows what factors contribute to the particular imaginative visions that each of us embraces?  They certainly bear no correlation to other personal factors. 

2. Compartmentalization

But "The Mystery of the Nice Fascist" as Nancy Drew might call it goes even deeper than the multiplicity and unreliability of the human imagination.  Humans are really compartmentalized.  Like many people I started out with a childlike notion of "evil" as some kind of core condition of the soul.  But the more of human life I'm exposed to, the more convinced I have become that people can be really terrible in one area of life, while basically decent in most others.  Serial killers are good husbands and patriots and colleagues.  Good fireman and policemen who risk their lives and sacrifice much for their communities, also beat their wives or molest children or embezzle money from their churches.

I recently connected this line of thought with another that I have always found fascinating: the artificial intelligence researcher Marvin Minsky's theory of The Society of Mind, which posits that, in brief, our brain is made up of individual compartments (he calls them "agents," but I like to think of them as little animals) that work together to make up our mind.  So crowded together in your mind is an agent that tells you when to eat, a separate agent that navigates you to the restaurant, an agent that governs the coordination you require to shift gears in your car, and the agent that nags you to visit the restroom when you arrive (sometimes on the edge of your consciousness, like a dog begging to be let out), even as another agent dominates your conscious thoughts with a relationship problem the whole time.  Maybe it's just a more sophisticated version of the angel and devil selves that compete for a character's mind in cartoons.  Perhaps the most obvious case is sexuality -- think about all the things we hear about so many people doing when driven by their inner sexual animal that are so much at odds with other parts of their lives. Another case is our ideological selves (to connect this point with my first one):  people can be driven by crazy imaginative visions that have zero correlation with their other qualities. (See also my related post on multiple personalities.)

Evil actions vs. evil people

The commonplace notion is that anyone who is evil in one area, must be someone evil in some "deep" way.  No "good" person would commit sex crimes or beat their wife or betray their country or cross a picket line or support Nazis or communists or terrorists or Democrats or Republicans or whatever is regarded as most evil in the context at hand.  They must somehow be twisted down to the core. 

But clearly this childish notion is not true.  Since Freud it has been recognized that the unitary, self-transparent self is a myth.  But the myth dies hard.  But this is why enlightened people and societies try to have compassion for people who do evil things, and while taking action when necessary to protect society from further bad things, avoiding demonization, harsh draconian punishments and a purely punitive approach to justice.  This may also be the insight behind the Christian idea of hating the sin but not the sinner.