On Obeying & Not Obeying Laws

Which laws should we abide by and which should we not? There are three main categories of belief one could have on this matter.

1) We should abide by every law, even if we don’t agree with it, because we should respect the law, and no one should be above it

2) We should only abide by the laws we agree with, and we should ignore the ones we disagree with (see my blog on rational crimes)

3) We should not abide by any laws at all

I’m going to assume that pretty much everyone claims to fall in either category 1 or 2, and that no one reading this thinks we should not abide by any laws at all. Incidentally, I did once meet a guy at a festival who claimed to be an authority-hating anarchist who thinks everyone should be entirely free to do exactly what they want at all times; but then literally one minute after declaring this he became vociferously annoyed at the sight of some newly-arrived campers pitching their tents in the wrong zone of the campsite. A few moments after I experienced that, I knew I would have a funny story for life.

Anyway, this faux-anarchist festival goer aside, I think if you asked the UK population whether they subscribe to category 1 or 2, most would say they belong in category 1, with a minority claiming to be in category 2. I want to contend that despite what many people claim, I think pretty much everyone actually belongs in category 2, and believes that we should only abide by the laws we agree with, and ignore the ones we disagree with. To argue to the contrary would be to claim that there are no laws that could be invented that we wouldn’t choose to ignore - and I don’t think that is true. Suppose a new law came in banning Bibles on the ground of imposing an Islamic theocracy, I don’t think many people would support it. Or suppose chocolate was outlawed by a nanny state that wanted to smother our every temptation, most would claim that’s a step too far.

The point is not that I think these laws are very likely. It’s that everyone has their limit: so anyone who claims to support number 1 - that we should abide by every law, even if we don’t agree with it - actually has their limit in where they betray that principle. In other words, no one really believes that we should abide by every law, even if we don’t agree with it – they simply follow laws they disagree with out of convenience and social pressure, or there aren’t yet any laws they find particularly objectionable enough to disobey. There is also, as Aristotle said in his Nicomachean Ethics, little virtue in obeying laws merely because we are legally compelled to. Real virtue comes from a desire to be virtuous, irrespective of the law.

Given the foregoing, then, which laws could we reasonably disobey? As you may know, the things that the state deems illegal boil down to two distinct categories: malum in se laws (wrong in itself), which are prohibitions (like rape and murder) that are wrong by their very nature; and malum prohibitum laws (wrong because prohibited), which are prohibitions (like regulations and price controls) that are not wrong by their very nature, but are wrong because the state says so.

Politicians, therefore, impose lots of restrictions on us merely on the basis that politicians say they should be prohibited. Malum in se prohibitions like rape and murder are things we all should obey, because we want them to be prohibited, and would choose them as laws ourselves anyway if we were in charge. The malum prohibitum restrictions, on the other hand, are not necessarily prohibitions we would choose for ourselves - they are chosen for us by people that don't know our preferences better than we do (taken to extreme, things like illegality of homosexual practice, fewer black rights, lack of free press against the dictator, illegality of abortion, and many more have been strictures of the state against its citizens).

If there are any laws we should be free to disobey, they are likely to be malum prohibitum laws - things that many of us may not think are wrong, but that are deemed wrong merely on the basis that the state says so for no apparent good reason. As any good dictator or authoritarian planner knows, the best way to wield ultimate control over people is to gradually erode away their freedoms until they reach a state of voluntary servility, where they will do pretty much anything you tell them. That is why it's essential to ask yourself which laws you should obey - otherwise you become an intellectual serf, like dead salmon floating down the stream.

But we needn't stop at the observation that pretty much everyone thinks we should only abide by the laws we agree with, and ignore the ones we disagree with - we can observe too that that principle is nested in a higher market-based wisdom that plays out more subtly. If we felt the full costs of many of the malum prohibitum laws, we probably would not support them. It is unlikely that the average Jill would be willing to pay as much to prevent the average Jack from using cannabis as he himself would pay to use it, therefore it is unlikely that a market based system would create an anti-cannabis law. It is unlikely that the total enforcement cost of the speeding laws would be willingly picked up by the citizens of the UK if it was spread evenly throughout the population, therefore it is unlikely that a market based system would create any speeding laws.

Consider an illustration. 500 million people are about to experience a quite discomforting but not too serious earache for the next hour. However if one innocent person is killed the 500 million won't have to go through with the earache for an hour. Should we kill the innocent person or let the 500 million people go through with the earache? I tried out this question on Facebook about seven years ago, and unsurprisingly everybody on my friends list said we should spare the one innocent life for the sake of 500 million earaches. That’s because, presumably, people want to minimise suffering, but yet at the same time they thought that the death of one innocent person was worse than 500 million earaches.

Fair enough, but this only goes to show that humans are weirdly inconsistent. Here’s why. I'll bet most of my Facebook friends insure their domestic goods. Then I asked them the following question:

Would you choose a certain earache for an hour or a 1 in 500 million chance of being the innocent person of dying?

Roughly 50% of people said they would choose the certain earache for an hour – which I found to be absolutely barmy. I take it that they are having trouble envisaging just how much 500 million is. How do I know that most rational people would rather have a 1 in 500 million chance of being the innocent person of dying than a certain earache? It’s not just because the probability is so heavily in their favour of surviving; it’s because in everyday life humans have multiple opportunities to buy all kinds of safety devices for their modes of travel, for their DIY, for their mowing the lawn, for climbing ladders, or whatever, each with a much less than 1 in 500 million chance of death or serious injury, and they prefer to take the chance. That’s how I know: people show me with their revealed preferences. 

When considered with proper rationality, the observation of people’s general day to day behaviour shows that most people would not pay one pound coin to avoid a 1 in 500 million chance of death, but most people would pay a pound coin to get rid of an earache that was going to go on for another hour. This is why the insurance issue is relevant – we choose an optimal deal because probability is hugely in our favour. We should do the same with the earache conundrum, because given that most people would not pay one pound coin to avoid a 1 in 500 million chance of death, but most people would pay a pound coin to get rid of an earache that was going to go on for another hour, this means that most people think an earache for an hour is worse that a 1 in 500 million chance of death, even though they claim to believe the opposite when the question was asked more abstractly. We know that rational people will pay £1 to cure an earache, but not to avoid a 1 in 500 million chance of death - therefore if you approach 500 million earache sufferers and offer to rid them all of their earache at the cost of killing 1 of them through a random draw, their revealed preferences in everyday life indicate that they should thank you.

This is very relevant to many of the malum prohibitum laws we see instituted in our statute. Recently I asked my Facebook friends, apart from speeding, which other current UK law(s) do you feel it's morally ok to break? Some of the answers they gave were streaming, having a wee behind a hedge, parking on yellow lines, drug use, skipping fares and not paying taxes. There is wisdom behind these answers, because what they are expressing is the revealed preference that they don't feel that the cost of those law enforcements are worth the price of having those laws, especially as there are so many deadweight costs associated with taxes, regulations and government spending.  

It's like the old joke about Tom and Pete stumbling upon a bear in the woods. Tom reasons that he doesn't have to run faster than the bear to survive, he only has to run faster than Pete. But the bear has a stake in this too, and wants the most efficient outcome - he doesn't want to waste resources chasing Tom when it would be easier chasing Pete. Most humans act as though they feel that way about most malum prohibitum laws, while at the same time speaking as though they don't.