Tuesday, 13 May 2014

What Really Motivates Our Lawfulness Isn't The Law


In my last Blog post I pointed out a Home Office error of reasoning about prison deterrence. I wanted to say something else about deterrence, but felt it would be better in a separate Blog post. Despite what I said about prison being mainly a deterrent against first time offences, it's also the case that the law is not the strong motivational, incentivising device many think it is - human rationality is the real motivational, incentivising device that enables us to have the relatively peaceable co-existence we have in places like the UK.

Imagine a man in the ancient Assyrian empire living in 1200 BC - a time of sieges, cross-border invasions, sanguinary conflicts and relative lawlessness. Suppose he gets transported to modern day Britain. As well as marvelling at the technological advances, the thing that will strike him most would probably be how peaceful, tolerant and stable it is.

Anyone who has studied history knows that peace and good order are far from the natural condition of human beings. The freedom, liberty, stability and security we have in the UK would probably strike our Assyrian man as being as marvellous as all the modern day technology (of course, if you transported him to present day Syria, or Ukraine, or Burma - or London during the 2011 riots - he'd soon feel more at home).

How have we become so ordered? Clearly not just by authority. If the majority of UK citizens decided to seize control over the authorities, they would have more than enough numbers to do so. Suppose you were asked to form an allegiance with an ever-expanding majority group who wanted to take control of the UK, and had the power to do so. Under this power you could join them in running riot - stealing from banks and shops, raping whomever you fancied, commandeering rich people's houses, swim in their pools, drive their Aston Martins around, and generally take advantage of being able to do what you wanted. I think you know straight away that you'd be prohibitively reluctant to join - in fact, you'd probably be on your knees praying that they don't go through with it.

The reason is obvious - despite some possible temporary gains, the losses are greater, as no one wants to live in such a society. Clearly, then, we are ordered not primarily out of fear of the law, but because we want to be ordered and want to live in a stable and safe society. Some moral philosophers will tell you that we are ordered because we all share the same views about what is right and wrong.  One careful look at society shows that this is moonshine - we differ greatly on all kinds of moral views. Therefore I would suggest that the moral philosophers who postulate this view have got their reasoning backwards - it is precisely because we have little chance of agreeing if all left to our own devices that we leave it to the devices of an elected government instead, and volunteer our active part in ensuring that those State-run devices are used as little as possible.

In all likelihood, until the past few decades a great many people had been brought up on a diet of people like Thomas Hobbes' and his portents in the Leviathan, according to which the benefit of the State is that it helps engender the kind of order of which we'd be devoid without a heavy authority in place. Without it life would be "nasty, brutish and short" according to Hobbes - which, as we know from history and from present day places without a stable State and rule of law, can be the case.

What Hobbes underestimated is the extent to which people have an incentive to adhere to the law if it is consistently enforced and that the State has an easier time policing a nation whose citizens adhere to the law, as well as an incentive to create laws that best incentivise. Hobbes got this part wrong - he believed that our natural brutishness necessitated a strict authoritarian State that could keep us in good order. He failed to appreciate the true strength of the symbiosis between willing citizens and willing State to work together to constrain us only to the extent to which our willingness to be co-operative was realised.

* Photo courtesy of hurstpublishers.com

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