Tuesday, June 3, 2014

Common Sense,Philosopher Kings, Arbitrary Law and Dictatorship

I have written many essay arguing against pragmatism and the use of common sense in law and government policy1. After my most recent essay2, being less than satisfied with the example I used, I planned to write one or more new essays, giving other examples showing how common sense could, quite easily, produce completely contradictory results. However, after thinking through any number of possible topics, it struck me that it would likely be more beneficial to look at the subject in the abstract, and see why it is so easy to point out the flaws in the use of common sense, after which we could then look at the ways in which common sense is often used, and what the consequences are.

As I see it, there are two problems with common sense.

The first problem is quite simple, that what we call common sense is almost always a very personal set of rules and preferences, and in no way common to all mankind, or even a substantial subset. Perhaps some of the rules any individual will include in their definition of common sense are shared by a large number, but I doubt that, were we to take any single individual's definition of common sense, it would match more than a tiny handful of others, if that many. Common sense is inevitably a means of smuggling in our own preferences and prejudices, consciously or unconsciously, a way of ascribing our beliefs to a large number of other people. And thus, when we argue that we should use common sense, what that means to others varies tremendously.

We can see this clearly in our political arguments. When someone puts forth a measure and claims it is just common sense, the very statement proves it is nothing of the kind. If the measure represented the common understanding of all men, or even a majority of men, it would not need to be proposed, would not need to be explained, we would already all be acting that way without the need for a law. As I said elsewhere, you don't need to be told to breathe or eat or drink, those are common needs of humans, a sort of real common sense, so we don't debate the need for food or air or water. All those other things that advocates suggest are common sense re something different entirely, as proven by the need to explain them to others, to persuade them, to show them why. The very act of explaining they are common sense shows them to be something else.

But for the moment, let us assume there is some sort of common sense, a set of rules which all men accept, a way of viewing matters, a sort of logic, whatever. That common sense would still need to base its decisions upon a given set of facts, and facts may be even more contentious than values. Is the globe warming or not? Does minimum wage benefit workers? If regulations were removed would companies sell impure and unsafe foods? Did man evolve or was he created as is?Is our water safer or more polluted than one hundred years ago? All these sort of questions are far from decided, and there are many, many more. And thus, even if we all agreed to apply the same decision making processes, given our various starting points, we would still reach very different conclusions, despite using the same common sense.

Allow me two examples to make my case. First, a very prosaic one. Let us assume common sense suggests that it is safe to allow a known and trustworthy individual to watch your house while you are away, while it is bad to entrust your home to someone of dubious character. Well, if you think your neighbor is an upstanding individual, while your spouse thinks he is shifty, you might reach different common sense result. Or, on a more abstract level, I will point to a discussion my mother and I had on the use of standardized tests for college admissions. We both agreed that the goal should be to admit the students most likely to succeed in college, but we reached very different results. She argued that many recent studies showed standardized tests were not reliable measures, and so she supported using interviews, essays and other more arbitrary standards. On the other hand, I am skeptical of such studies, and know many universities began downplaying tests mainly to avoid suits when they used racial criteria for admissions, as well as knowing, historically, standardized test were developed to combat biased admissions, which tended to discriminate against Jews, immigrants and others. So, even with the same common sense understanding of the goals of admissions, our factual foundation resulted in very different views.

These two problems, to my mind, make common sense a quite unreliable guide of ones actions. However, since there are those who continue to propose using common sense in political venues, perhaps we should look at how it is suggested that common sense be used, and ask ourselves what the outcome might be.

Politically, common sense is most often proposed in two different, but related, situations. First, when a piece of legislation goes against the larger political principles one espouses, it is often justified by being a common sense piece of legislation, with common sense being used to justify going against explicit principles. Second, when a given law, taken to its logical conclusion, would produce unwelcome results, the proposal is usually made that it be enforced using common sense, the argument being that common sense will provide a brake on the law before it reaches any unwanted outcomes. In both cases, common sense is used as a means to circumvent principle, a way to allow one to enact laws contrary to stated beliefs. The arguments, and the results, are slightly different, but overall, in both cases, common sense is used as a sort of indulgence, allowing us to violate our principles without abandoning them.

If, for the moment, we ignore the small differences between the two approaches, we can see that both amount to essentially the same position3, that a given rule is not valid under one's political philosophy in some way, but that it should still be enacted, as the results are desirable. In other words, as used most commonly, common sense is the modern variation on "the ends justify the means", which is why I always associate my arguments against common sense with those against pragmatism. Viewed objectively, the two are the same thing, though obviously used in different contexts4. Pragmatism most often appears among those who deny the validity of political principles entirely, and wish to rule by makeshift rules of the moment, enacting "what works"5. On the other hand, common sense is most often invoked by those who espouse fairly strong political principles, yet find those principles require they oppose a policy whose goals they support. In other words, common sense is used as an escape hatch from the confines of principle, allowing them to act on emotion, or in those cases when they find two beliefs in conflict6.

The problem here should be obvious. As I have argued before, in any debate over policy, the most consistent position will win. Thus, any policy enacted will be taken to its logical conclusion, and any policies that it implies will also eventually be enacted7. And this remains true, whether or not we place a common sense cap upon how far it will be taken, or argue that it was implemented from common sense and not because of the underlying rationale. Even if our fellows are dedicated to limiting the policy using common sense, as we argued above, common sense varies from individual to individual, and thus some would go farther than we would, and because those going the farthest are also the most consistent, over time their position will win. With each victory for the most extreme position, the limits of common sense move as well, allowing ever more radical positions to become acceptable, continuing to move the mark until the law reaches its logical endpoint.

Let us look at a few simple examples. Many who otherwise favor minimal government, and argue the state should be used solely to enforce the protection of rights, favor laws prohibiting prostitution, or the banning of drugs8. Their rationales vary, but they really don't matter. Whether enacted to protect individuals from their own bad decisions, or to protect others from a loosely defined harm from the acts of others, these laws open the door to farther restrictions, and greater scope of action for the state. And if banning drugs can be justified as a common sense measure, then what is to prevent another, with some other restriction on individual action, to argue they too are basing their decision on common sense? If we argue drugs should be banned as they allow one individual to harm others, as well as himself, then does not the same logic support restrictions, even bans, on gun ownership, as guns allow individuals to more easily harm themselves and others? Cannot one argue that too is the same sort of common sense? And, provided public sentiment is right, or the proponent is sufficiently eloquent or persuasive, is it not likely that the first exception could easily grow into the second? And having enacted the second, why not a third? A fourth? And at what point does it end? The supposed barrier put in place by common sense can easily be pierced, or circumvented, by a host of new ordinances, changing entirely what is and is not a common sense position9.

Let us look at a second example, as it will help lead us to one final, significant discovery.

Many conservatives, not convinced that the free market can operate without regulation, are willing to embrace various regulatory measures, be they stock market regulations, caps on CEO salaries, regulation of speculation or something else entirely10. However, most of these nominal conservatives supporting such measures are also firmly opposed to all other forms of regulation. In their minds, the free market could operate without regulation, if only everyone were to behave ethically, but due to human frailty, we must pass their favored regulations, but nothing more. In their minds, the market may be flawed, but can be made whole if only their pet laws were enacted.

The obvious problem with such a position is that, having admitted human frailty can undermine the market, we open the door to any and all expansions of the law. Who is to say that the regulations favored by our hypothetical individual are enough:? Might not we need one more law, as a matter of common sense? Might not people be slightly more depraved than he allows:? Does that not suggests that the law needs to reach a little farther than he suggested? And, once again, we find ourselves in the familiar position of the most consistent, most thorough application of the principle winning the day, and, in this case, the one who posits the most depraved and evil mankind is the most thorough, the more regulation proposed, the more successful the plea. The result being, as above, the gradual shift of the common sense position from the original proposal to ever more extreme, but consistent, applications of the regulatory principle, until, at last, we reach the logical conclusion, a system built upon the presumption of a thoroughly depraved public, in need of effectively unlimited regulation11.

The discussion of ethics, the free market and government reminds me of one other discussion, and one which is quite relevant to our present discussion. Many times, especially when one is critical of the acts of real world communist states, one will hear that the failure of those states was not due to the theory, but because the state was entrusted to the wrong people12. I mention this because it is actually quite similar to the system these common sense exemptions to principled government would create. If we rely upon common sense to limit the enforcement of a law, or to limit the enacting of laws contrary to our principles, then we must depend upon the existence of those who share our understanding of common sense. In other words, as with the defensive view of communism mentioned before, these common sense rules would depend upon rule by the right people, and could be laid low by the rise to power of the wrong person, that is someone who has a different understanding of common sense, or no understanding at all.

As was discussed in my several essays about monarchy13, systems which rely upon the sound judgment of an individual are doomed to failure. Obviously, in any system, the more competent the individuals fulfilling various roles, the better the results, but once we introduce arbitrary power -- which is what reliance on common sense amounts to -- the effect of each individual is magnified. In a system with rigid rules, with clearly defined laws and impersonal, deterministic procedures, the outcome of most actions is foreseeable14. I grant, finders of fact may still hand down decisions which defy common sense, there is no such thing as perfection in this life, but as I described elsewhere15, there is a great difference between unpredictable finders of fact and unpredictable laws. One benefits greatly from knowing whether or not a given act runs the risk of arrest, and that is what comes from predictable laws. And that benefit is what is lost by basing laws upon common sense16.

However, the problems are not limited to those cases where power passes into the hands of the incompetent or villainous. Even when rule is consistently entrusted to the most competent and well meaning, arbitrary power and inconsistent principles will still bring about undesirable and dangerous outcomes17.

The problem with arbitrary, unlimited power is, bad or good, those exercising the power have values that differ from those over whom they rule, if not on every point, at least on most points. Thus, inevitably, in enacting what they think best, they will make rules which make others less happy, reducing the overall satisfaction and thus producing inefficiency. Even if a rule is appealing to 99%, that 1% will be unhappy, and could be made more satisfied simply by not enacting a "one size fits all" rule18.

But the inefficiency and dissatisfaction of such a circumstance is secondary to the more significant problem, the previously mentioned uncertainty. It does not matter how competent or benevolent the rule maker might be, if the system is organized in such a way that his rulings are entirely arbitrary, or the enactment of laws produces an environment in which one cannot anticipate with any confidence what will and will not be allowed in the future, it thwarts any long term planning, and leaves citizens unwilling to undertake any but the most trivial actions with the most immediate of consequences. Savings, planning, anything requiring some degree of certainty, is impossible in such a world, and that is the real problem with an arbitrary state with unlimited power. And that is the sort of state that making common sense allowances produces19.

Given that common sense, used as it is to justify exceptions to political principles, inevitably produces an extension of state power, as well as introducing a degree of arbitrary rule, and given that the outcome of arbitrary, omnipotent power is harmful, whether those exercising it mean well or not, it should be obvious that allowing such common sense exceptions is dangerous at best, suicidal at worst. Even under the best circumstances, with upright individuals who mean well enacting the laws, still the differences between the various definitions of "common sense", along with the desire to do good demanding one seek ever more authority, over time the state will grow larger and larger, with the rules becoming ever more dependent on individual beliefs and decisions, until in the end it does not matter whether we are ruled by saints or sinners, as the state will eventually consume all, leaving us its slaves.

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1. See "The Lunacy of "Common Sense"", ""Seems About Right", Another Lesson in Common Sense and Its Futility", "A Look at Common Sense", "Res Ipsa Loquitur", "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revisited, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism", "The Problem of the Small Picture", "Keyhole Thinking", "Impractical Pragmatists", "In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency", "No Dividing Line", "The Consequences of Bad Laws" and "Questions of Law and Questions of Fact" and "The Rarity of "Common Sense"".

2. See "The Rarity of "Common Sense"".

3. The differences are slight, amounting to one approach saying that the entire law, including its logical consequences, is to be enacted, while the other takes a given law and admits its validity only to a certain point, at which it becomes undesirable. In both cases, the argument form common sense admits that the law in question, or perhaps its logical implications, are contrary to one's beliefs.

4. Pragmatic solutions are not always proposed by consistent pragmatists, many times it is an individual who has a more or less consistent political philosophy who makes a pragmatic proposal, admitting it is inconsistent with those principles, but demanded by current circumstances. For one example, most consistent advocates of small government admit it would ideally be best for all enterprises except courts, police and the military to be privately owned, but they will pragmatically support public roadways ("The Dishonesty of Transportation Spending", "The Glory of Eisenhower?", "Non-Governmental Communal Solutions", "In a Nutshell", "Inconsistent Understanding"), or even public education ("Reforming Education", "You Don't Drown in a Glass of Water - Vouchers Revisited", "Why Vouchers are not the Answer", "Never Ascribe To Evil, A Discussion of Education").

5.  I am not convinced there are true pragmatists, in the sense of individuals holding no principles, but simply "doing what works", as even deciding "what works", or what goals to pursue, requires smuggling in some implicit principles. Which suggests to me that most pragmatists are actually believers in some philosophy who have consciously or unconsciously decided to conceal their beliefs.

6. There are numerous reasons for one to turn to common sense to avoid being forced into an uncomfortable position by principles. One may have an emotional reaction to a given act and wish to ban it, even though that goes against principles ("Hard Cases Make Bad Law", "Government by Emotion"). One may hold mutually exclusive beliefs, largely supporting one set of principles, but committed to another principle which comes into conflict with them. One may even have a set of beliefs which represent no consistent theory or concept, but are simply a mess of received wisdom, resulting in many incidents where one beliefs conflicts with another.

7. See "Inescapable Logic", "Recipe For Disaster", "The Endless Cycle of Intervention" and "The Cycle of Compassion".

8. See "The Sexual Revolution and Prostitution", "Harming Society", "Another Look at Exploitation", "Guns and Drugs", "Three Ideas that Never Work", "In Loco Parentis", "Gun Control, The FDA and Regulating the Law Abiding", "Noble Goals", "The Problems With "Safe and Effective"", "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"" and "On the Side of the Angels... Yet Completely Wrong".

9. See "Slippery Slopes".

10. For a discussion of the free market see "Greed Versus Evil", "Competition", "The Basics", "The Triumph of Good", "The Limits of "Scientific" Management", "Planning for Imperfection", "Misunderstanding the Market", "How to Blame the Free Market", "How to Blame the Free Market Part II", "Contracts and Freedom", "Unfair Advantage and Foreign Trade", "In Praise of Contracts" and "Third Best Economy". About the various types of regulation mentioned see "Consumer Protection", "Et Tu, Town Hall?", "Imperfect Competition, Abstraction and Anti-Trust", "When Did We Become Liberals?", "Those Greedy Bankers", "Perverting Self Interest", "A Little More On CEO Salaries", "What Is Fair? or, How Game Theory Leads Us Astray", "Why Do They Earn So Much For Playing a Game?", "Greed","Greed Part 2", "Authoritarian Oil Talk", "Those Darn Speculators" and "In Defense of Speculators".

11. I actually disagree with this conclusion. As I have argued many places, even a thoroughly debauched, dishonest and selfish mankind, placed under a free market system, with no more than protection against force, theft and fraud, would still produce optimal results, at least in turns of fulfilling one another's desires. As I have written, the brilliance of the free market is that it takes our base instincts and turns them to the benefit of others. However, most believe that a free market requires some level of personal ethics or self control, and thus disagree with my conclusions.

12. See "The Right People, The Wrong People and "Just Plain Folks"" and "The Wrong People".

13. See "Elective Government Versus Monarchy" and "Misunderstanding Democracy".

14. See "Culture and Government", "In Praise of Slow Changes", "Conservatism, Incremental Change and Federalism", "Predictability", "The Consequences of Bad Laws", "Traffic Lights, Predictability and Conservatism", "Inflation and Uncertainty", "Juvenile Culture and Totalitarianism", "The Virute of Novelty and the Value of Tradition", "Chasing a Receding Goal",  "In Defense of Standards" and "Addenda to "In Defense of Standards"" .

15. See "Questions of Law and Questions of Fact".

16. Some may argue that common sense exemptions may enact predictable laws (eg. laws against drugs, or prostitution). However, this introduces a related, but different, problem. Long term planning requires one be able to anticipate what laws may be enacted. If we allow for laws contrary to overall principles, supported only by appeals to common sense, we lose that predictability, as almost any law imaginable could be enacted using that argument.

17. See "In The Most Favorable Light", "With Good Intentions", "Grow or Die, The Inevitable Expansion of Everything", "Skewed Perspective, or, How Big Government Becomes Inevitable", "Tyranny Without Tyrants", "Consumer Protection", "Doing Something", ""Doing Something" Revisited", "Doing Something Revisited, Again", "Don't Blame the Politicians","The Single Greatest Weakness", "What We Deserve", "The Written Law" and "Smaller Government , Fair Weather Friends and Special Cases".

18. One could make a straw man argument and take this position to the reductio ad absurdum, arguing that by this logic, we would be most efficient with no state at all. That is nonsense, as the state's role in protecting rights is, in itself, a positive benefit for all. ("The State of Nature and Man's Rights" , "The Benefit of Society", "A Beast's Life", "Learning From Crows", "Of Ants and Men", "Humility and Freedom") The argument above only applies to laws which are, in essence, optional, that are not required for the minimal functioning of government. In those cases, I find the "one size fits all" approach which law requires, tends to produce net harm, unless one can argue the law fills such a pressing need for some that it more than justifies the harm done. (See "An On Demand World", "The Danger Inherent in Banning "Bad Ideas"", "Missionary Zeal and Human Discord", "Tolerance, Agnostic Prostelytizing and Liberal Activism", "The Life Coach Culture" and "The Great "What If?" - Advertising, Gullibility, Education, Capitalism and Socialism".)

19. Such uncertainty also produces a host of psychological problems, as individuals unable to predict what will come tend to suffer from a host of ills. However, it is difficult to figure the prevalence, or the cost, of such psychological harm, so I shall limit myself to the economic and political results.

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UPDATE (2015/02/20): As I cited this essay in something I just wrote, I decided to read the original article, to see if it truly was relevant and my memory had not misled me. And in so doing, I ran across a statement I wish I had either not made, or worded differently. After presenting a list of conflicting views I make the statement "All these sort of questions are far from decided, and there are many, many more." The problem with that statement is that it can be read two ways.

First, it can be read as arguing that these issues lack a firm scientific conclusion on the evidence. Second, it can be read to say that, regardless of evidence, there is not yet political consensus. Unfortunately, when I first wrote it, I intended the former, but I then went back and added examples using the latter definition. And thus, I am afraid I gave the mistaken impression that I believe, for example, evolution and creation are equally viable scientifically, which, is possible to state only if one takes the most extreme view of the fact that empirical proof cannot offer the sort of certainty possible in, say, logic or mathematics. By any other standard, the preponderance of evidence in favor of gradual evolutionary development (even if the details get hazy in places) is so overwhelming there is effectively no debate. Of course, as with all science, some novel discovery could overturn everything tomorrow, but given the preponderance of evidence that seems unlikely.

And so, I would like my readers to understand that in that case, at least, my argument is not that the science is still up in the air, but rather that the political positions of many people are still in conflict, leading them to adopt differing positions regardless of the evidence. (Which, I admit, does not fit well with the argument I was trying to make. Which goes to show why I so rarely do rewrites, I regularly forget the point I making and insert arguments that don't quite fit. Which is why I say I wish I had not made the statement.)

UPDATE (2015/11/13): In The Truth, Terry Pratchett makes the observation that anyone using the term "clearly" almost always means the weakness of their argument is far too evident. (He words it much better.) Similarly, I have come to believe whenever someone falls back on "common sense", it means one of two things: (1) If they are arguing something is justified by common sense, it means they have run out of arguments. (2) If they argue we should impose "common sense restrictions", it means someone has pointed out the dreadfully uncomfortable implications of their proposal and they don't want to address them.

Clarification (2015/11/13): I want to address one statement in the original essay. I say "Did man evolve or was he created as is?[...] All these sort of questions are far from decided[.]" It is but one item in a list, so some may not have noticed, but it jumped out at me today while reading. While I think many items in the list are fairly well settled (eg minimum wage is exclusively harmful, any climate change we experience is almost entirely natural and not catastrophic), this one is probably the most extreme example. Given all the evidence, all the science, the question is settled, at least as far as I am concerned. On the other hand, it is a question still hotly debated by members of the public, which was my point. Some of the questions in the list are undecided in a scientific sense (ie. scientists continue to debate, as is the case with AGW), but others are undecided in a political sense (ie. science has a strong consensus, but the general public does not share that certainty). I wanted to make that point clear, as I have repeatedly argued against, not just creationism, but even many arguments offered for Intelligent Design theories, and did not want this quote to give a misleading impression.

1 comment:

  1. To clarify one thing, when I say many questions are unsettled, I do not mean the theory itself is not established, I am firmly convinced evidence argues against minimum wage and AGW and for evolution against creation in place, however, the fact remains our fellow citizens are still in strong disagreement about this issues, and it is in that sense, and that sense only, I state these issues remain undecided.

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