Effecting Change Through Law

People Break Rules

I ride the tram to the office every day without paying for it. I get on through the back door, sit down, and get off if I see a man in uniform. I work in a judge’s chamber; I break the rules on my way to an office where my job is to labor over the anatomy of justice. Ah, the irony. Why do I do it? Because I can get away with it, and because I think the fare is too expensive.

Many New Orleans residents participated in the looting that emptied shelves in unguarded stores throughout the city in the aftermath of Hurricane Katrina. One woman appeared on CNN carrying an armload of sneakers; cheerfully, she told the camera that “Katrina gave us new shoes.” Why did she do it? Because she could, because it was profitable, and because everybody else was doing it.

A decade and a half ago in Rwanda, Hutu farmers turned on their Tutsi neighbors, hacking them to death with machetes. When they were done killing, they took their victims’ land, bicycles, television sets. Why did they do it? Because they could. Because their leaders told them that the cockroaches had to be annihilated. Because everybody else was doing it. Because killing was profitable.

The Fall of My Moral Empire

Human beings do not live by moral codes; we live by rules. The rules themselves are man-made, relative to time and space. The strength of a rule is roughly proportional to the efficiency and force with which society upholds it. If the benefit of breaking a rule outweighs the cost, we break it. If we notice other people breaking a rule, we tend to follow suit. And if we perceive that breaking a particular rule is legitimate – for example, when a person of authority tells us so – we no longer feel constrained by it.

These may seem like simple, obvious truths. In fact, I fear that admitting that they are conceptually new to me will reveal the vast pool of naivete through whose reflection I see world. I have long struggled – emotionally and intellectually – with the “evils” of the world. Observing my surroundings through a lens that allows for no nuance between black and white, I have attempted to figure out why people do “bad” things: Why did children tell on their parents in Pol Pot’s Cambodia? Why do priests molest altar boys? Why did thousands of “regular people” work in Nazi Germany’s death camps? Why do we in the West use more than our share of the global resources? Why do people sell their children into sex slavery? Why do Columbia law students throw plastic in the bin clearly labeled “paper only”?

Until recently, the only answer that I could come up with – along the lines of “because they are deaf to their own sense of moral” – has been as unsatisfying as it is trite. Because what do you do with that? Telling someone who is selling drugs at a high school that his actions are immoral is useless; and preaching what is “right” and “wrong” is a futile way of preventing the reoccurrence of genocide. I can see this clearly now. But I came to law school thinking it would be populated by people who, like me, have spent the last decade attempting to cure the world’s ills by wielding blunt tools like “values” and “morals” and “ethics.” As long as I can remember, I have operated under the assumption that I could effect change by appealing to people’s gut moral instinct: Thus I wrote alarmist columns about climate change in my college newspaper, preached veganism from behind the counter at Burger King, and told everybody and his mother about the plight of Afghan women. All of the above with very limited success. In law school, I thought, me and my fellow moral warriors would embark, arm-in-arm, on a mission to eradicate “bad” and “evil” in society and the world. Yeah. Hello. Earth to Anja.

Law is the Answer, You Fool

It took me one year of law school to realize that the power of law is not that it is rooted in some vague concept of what is morally right and wrong. The power of law is that it can force people to behave in a certain way, that it is backed by threats of punishment, and that it can be changed and enforced to serve the purposes of those who are smart about it. In this way, law actually allows me do something about the world’s problems in a way that is much more direct than I had foreseen.

If we accept the contention that human beings live by rules, not moral codes, we should necessarily focus our efforts to effect change on the law and its enforcement. If you do not like society’s disregard for climate change, advocate for legislation that force people into environment-friendlier behaviour. If you suffer at the thought of animal factories, how about some creative litigation? And if you want to prevent genocide or impunity for war crimes, put your weight and energy behind the emerging system of international criminal law.

Sometimes, I believe, successfully effecting change through law calls for a pragmatic approach. We are looking to cure the ills of society not by eliminating their cause – that would be a moral-ethical quest – but by taking a realistic look at the problem and searching for a way to minimize their negative effects by means of law. In this vein, the Netherlands has already rid itself of some of the nasty byproducts of drugs and prostitution by a two-pronged legalize-and-regulate policy. While legalizing prostitution may instinctively feel “wrong,” reality is that it has allowed for a crackdown on things like human trafficking, exploitation of children, gender-motivated violence, and disease. Sometimes, it seems, making rules more realistic can be a way to effect change.

So if you want me to pay my tram fare, I would suggest either making it cheaper or threatening me with time behind bars.

IN PROGRESS.

Eben's comments on the original draft:

• Yes, all of this said and you haven't made any progress on your well-chosen (if not exactly recondite) topic.

• This is therefore the draft before the draft. You have written around your subject enough to know that you have picked a good subject, because the usual stuff said in the usual way is unsatisfying. You mash up several different points of view (you begin by saying that retribution has been our central theory of criminal punishment, only to say a graf later that it has been incapacitation and general deterrence), you assert that rehabilitation doesn't work, and that deterrence doesn't either (on the basis of a single exceptional anecdote, although much better evidence for your proposition is available), and then skip to the "social roots of crime" analysis that joins the 18th century radical, the 19th century liberal, and the 20th century progressive in a multi-generational parade of "right before their time."

• But none of it is helpful in dealing with Madoff, as you say. So now it becomes necessary to write the draft that one writes after one realizes that all the stuff everybody says all the time doesn't really explain anything. If you seriously set about doing it, and find a way to express your exploration and discoveries in 1,000 words, you will have a memorable and irreversible intellectual experience. Go for it.

Anja,

Don’t let the scales fall so far from your eyes that you become a Hobbsian cynic. People are not so uniformly villainous that they can only be taught to do good through the threat of criminal sanction. People cheat, steal, and murder, sure – but they also donate kidneys to total strangers. We are more complicated than you are letting on, and you know it.

We do bad things for many reasons, and ‘profit’ is usually the least of them. Genocide is not profitable – you can steal someone’s bike without killing them and their family. This school is trying to teach us to see everything through a cost/benefit/economic lens; we are not required to succumb.

I agree with your insight that law is not always based on moral certainties, but is created by humans. There are wise ways to proceed from this conclusion without growing the criminal law. Has the ICC found any genocide perpetrators who wouldn’t have done it if they thought they’d be punished more severely if caught?

On a micro level, I’d ask you to think seriously about paying your train fare. In theory, New York imposes significant penalties on turnstile-jumpers, as you advocate. In practice, theft of service arrests are just another means by which the state supplies young black men with longer criminal records than their white peers. Once we give the state the power to regulate our lives by threatening to punish us, we don’t always control how the power is used.

Much Best,

Andrew