Tuesday, January 20, 2015

Special Cases

NOTE: While I was reading an old article ("Greed Versus Evil") I was annoyed to find all the links still pointed to my defunct blog "Random Notes". Since these now simply dump one on a Townhall landing page, it is rather annoying to try to find the article on this blog, if it exists here at all. And so, once again, I am trying to update my old posts, changing the links to point to articles which have been moved over, and moving those articles I have not yet copied to this blog. This article is one such essay, a cited post which had not yet been copied from my personal backup copy of Random Notes and this blog. Some may seem rather dated, a few may even be contradicted by my later writing (as my ideas do evolve over time), but I am still copying them, both because having readable copies makes it easier to peruse old posts and, though they may no longer be entirely relevant, I still think almost all of them have some small value.

Americans, as a whole, are a very kindly people. It is hard to believe it sometimes, as someone runs over you in the parking lot in their SUV, talking on their cell phone, and then gives you the finger for "letting" your 4 year old get in their way, but honestly the obnoxious are the exception, not the rule. It is why we complain about them so much, because we know, by and large Americans are a big hearted lot who would normally behave in mostly civil ways.

And that gets us into trouble.

It is now a cliched joke to add "for the children" after a bad proposal, as that argument has been so successfully parodied, but becoming a commonplace does not make it any less true. We still, for the most part, will enact anything suggested provided we can be convinced it is somehow going to protect children, or any other group we see as particularly weak or vulnerable.

Let us take a rather contentious example. Why are there many laws making it harder to protest in front of an abortion clinic than a military recruiter, a bank, a corporate headquarters or a nuclear plant? Some will argue this is because of the political clout of the pro-choice movement, and others will argue it is because of the violence directed at abortion providers, but neither is right. Most often, these sort of protections are defended because of the weakened or troubled mental condition of those seeking abortions*. The argument most often made is something along the lines of "when they are making the most difficult decision of their lives, young women do not need to be harassed..." And, as I argued earlier, since it appeals to our protective nature, such measures pass, sometimes even with the support of moderately pro-life politicians, as our protective urges often overcome all but our strongest beliefs.

Of course that is hardly the only case of protective urges overcoming common sense. Hate crime legislation is another example, laws intended to provide especially harsh punishments because, whether we admit it or not, we see the victims as exceptionally vulnerable**. Similarly, the many gun and drug free school zones are embodiments of this urge. Because we see children as needing special protection, we take something already illegal and make it extra-super-duper-illegal near children.

At this point I can see many readers agreeing with my arguments, but wondering where the harm comes in. "Yes," they might say, "we do do provide special protections for specific groups, but how is that harmful?"

And, often, it does not immediate, or obvious, harm. Drug free school zones or abortion clinic protest limits don't have any obviously harmful impact on society as a whole.But they do have a subtle danger. Just as affirmative action creates special categories of people subject to slightly different laws, these laws also create special categories (children, abortion clinics, schools, minorities, and so on), that are subject to their own special laws. And more than that, once a group is recognized by the law as different for one purpose, it is easier to recognize them as different in any other context. Which means that any group singled out for special protections, regardless of the context, immediately becomes a contestant in the pressure group struggles that such differentiation brings.

And that is where my worries arise. Once we create castes within the law, be they nobles and commoners or the majority and protected minorities, we unleash a very nasty sort of pressure group warfare as those outside the groups struggle to have their group recognized as privileged, and those already in groups struggle to increase their privileges and reduce the privileges of others. Even in the case of groups which would not normally engage in such struggles (eg. children, the insane, the mentally retarded), there will arise a group of "advocates", who for one reason or another*** are interested in advancing their cause, and so the group will enter the fray even if its members are unable to fight on their own behalf.

Before someone objects that I am portraying children's advocates or groups pushing for, say, gay rights, in too negative a light, let me say I don't really care about motives. Whether they are fighting because they want special privileges, or simply because they believe their group has been historically subject to discrimination and needs a little special protection, the outcome is the same. Once any group is treated differently, every other group in society becomes slightly disadvantaged relative to that group, and thus wants that same privilege. On the other hand, any group having a privilege obviously thinks it deserves it, and so will fight tooth and nail to avoid having that privilege given to anyone else. Which means, regardless of motive, recognizing special categories within the law will necessary result in a very nasty version of the war of all against all.

Now, there are some situations in which it is sensible to treat people differently. As I explained in my posts "My Vision of Government" and "My Vision of Government Part II" (and also in "Smaller Government , Fair Weather Friends and Special Cases"), such distinctions may be legitimate (such as the distinction of those able and unable to consent for purposes of statutory rape or, more positively, for purposes of contracts), but such distinctions should be as infrequent as possible and limited in scope to the greatest degree possible, which does not appear to be the case today. More often than not when a problem arises our solution is to single out the most sympathetic victims, cast them into a new special group, and give them special legal protection. We have done it so often we have developed a mental habit of seeing everything in terms of pressure groups. We ask whether government is "for the rich" or "for the poor", as if a neutral government were unthinkable, we ask who benefits from each law, as if pressure group warfare were the most natural thing in the world.

And, sadly, that is the logical outcome of our big hearted approach. Much as it may seem heartless when we do it, we need to oppose our inclination to help (as did Cleveland when he uttered this blog's motto, or Madison in opposing similarly popular relief ) and instead insist on laws which apply to all or none. Once we create special groups, we simply invite struggles between them. And there is no more certain route to civil strife and excessive government power than the creation of groups with special rights and privileges.


* This is an odd argument for the left, though they do make it. After all, they often resist any implication that there is a psychic cost to abortions, but they take recourse to the same arguments the right directed against them when it helps to bolster laws limiting protests.

** This position does support my contention that the left has a condescending view of minorities in general, seeing them as rather child-like , unable to succeed without help and needing special protection. If minorities were competent adults, there really is no reason for special protections such as hate crime laws. (See my posts "Mainstreaming hate", "The Costs of Understanding", "Eurocentrism? Racism? Liberal Traits All" and "Tolerance? Really?", as well as my concluding comments in "A Question About the Two State Solution".)

*** Some may have a sincere interest in bettering the lot of the group in question, but many are motivated by more mercenary urges. However, the real problem is that their motives don't matter. Even the most sincere urges create the same problems, so motives are really secondary.


There is another, less obvious, harm to special groups being legally recognized, and one with an ancient pedigree. As I argued in ""Empathy" Threatens not "Justice" but Predictability", one of the most important features of successful cultures is a consistent legal framework. Once people cannot predict the future based ont eh laws, they begin to give up on planning, stop thinking about the future, and growth and progress slow or stop.

However, special groups undermine this in two ways. First, unless the group is immediately identifiable, it becomes problematic, as I don't know if someone I am addressing has special rights or not. Normally this may not be a problem, but it could Just as Roman citizens in the early empire could suddenly bring out their citizenship to avoid unwanted treatment that would be inflicted upon non-citizen subjects, those in special groups (eg. the disabled) can suddenly spring this on business owners, for example, the many nuisance lawsuits filed in California under the ADA and related state laws. When I do not know if the person I am addressing has special rights, it makes our interaction less predictable and more difficult. (See "England Becoming a Third World Nation" and "The Important Lesson of Racism" for more on the importance of predictability in individual interactions.)

Far more significant is the fact that the relative power of each group constantly shifts. So if the special rights of any group may effect your plans, either personal or business, this constant shifting makes long range planning difficult. As the law may effectively change as groups jockey for position, the existence of groups with special rights does much to undermine any sort of predictability in the law.

So not only do these groups help break down civil society, they also undermine the predictability of law and thus hamper planning and investment.

Originally posted in Random Notes on 2009/05/15.

NOTE: As I am trying to ensure the links in old posts all point to something useful, I have updated the links in this essay to point at local copies of each article.(Due to the number of links and lack of time, this specific article has yet -- as of 2015/01/20 -- to have the links fixed.)

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