The oil industry has been a big deal here in Alberta for decades; our two NHL teams are the Oilers and the Flames, and while the latter started out as the Atlanta Flames (named for the burning of Atlanta during the Civil War), they kept the nickname when they moved to Calgary because it was evocative of the flare stacks you see at oil refineries. And our provincial government has long been increasingly friendly to oil interests, to the point where it's fair to say they govern for their exclusive benefit.
For example, for many years the provincial Conservative Party had set the royalty rates on oil and gas at below the market value recommended by independent economists. They also were very lax about enforcing rules on setting aside money to clean up abandoned oil wells, so it's been a common practice for wells to be operated by small throwaway corporations who conveniently go bankrupt before having to properly rehabilitate spent well sites. Alberta has thousands of orphan wells, with an estimated cleanup cost in the tens of billions, according to this CBC story.
The corruption and entitlement of the Conservative Dynasty reached a peak in 2015, when there was just enough anger among the electorate (and division among conservative factions) to allow the New Democratic Party to form a government. They had a steep learning curve, but they were doing a pretty good job starting to repair the damage. But the old Progressive Conservative party and the Wild Rose Party merged to form the United Conservative Party and, with a very well-funded campaign vilifying the NDP, managed to retake a majority in the provincial legislature.
I had thought, at the time, that their long term game plan would stay the same: pander to the oil companies for as long as they can, and if worse comes to worst and their opponents get elected, blame all of the long-term damage from their own policies on the four years of their opponents trying to fix that damage, and get re-elected to continue oil service.
But lately that has shifted in a very sinister way. The very first thing the UCP did when they won the provincial election last year was announce a major business tax cut, ostensibly to help create jobs. (It did not have that effect. Husky Oil, one of the bigger beneficiaries of the reduced taxes, announced layoffs shortly afterwards.) And the UCP has been making truly devastating cuts to education and health care (yes, even health care, in the middle of a pandemic). And just last week, a government pension fund lost $4 billion on an unusually risky investment.
I don't think this is business as usual. I think what's happening is that the oil companies are recognizing that oil isn't coming back. Investment in and demand for sustainable alternative sources of energy continues to grow, while fossil fuels are becoming at the very least unfashionable. And the pandemic is, among other things, getting people talking about how blue the skies are and how maybe we don't need to fly or drive everywhere quite so much. This will pass, and -$35 a barrel oil futures are almost certainly an anomaly, but the future just doesn't look all that rosy for the oil industry, and they know it.
So what would you do, if you realized that your long term prospects for extracting wealth from the ground were effectively at an end? The sensible-self-interested strategy would be to liquidate all the assets you could from your oil-production business and get the hell out. Abandon your spent wells and leave someone else to pay for cleaning them up, but on a much bigger scale.
How big a scale? How about a whole province? For decades, it was worthwhile to keep Alberta functioning as an advanced oil-extraction support system. They needed smart engineers and geologists and technicians, and so it was worth it to spend money on education, and on a robust health care system to support the work force. But now, with the future of oil in doubt, investing in all these other things doesn't really benefit the oil interests. That's why the UCP is making such drastic cuts to everything, while dumping as much money into "supporting" the oil industry as possible. But those subsidies aren't going to attract new investment in developing Alberta's oil resources. It's part of the process of draining as much value out of the asset as possible while they still can, that asset being the provincial government itself. It's time for them to take the money and run.
It's not that Premier Jason Kenny and his cabinet are unaware that their policies will leave Alberta in a desperate mess when their term is over and they face another election. It's that they don't care. They may still have enough financial backing from the oil industry to hang on for another election, but even if they don't, they know they're in the endgame already. If they lose the next election, then the mess they've made will be someone else's problem. That was the plan all along.
Friday 24 April 2020
Thursday 2 April 2020
More on the Coerciveness of the Law
A friend asked me for my thoughts on this article, and I wrote a reply and posted it with a vague sense of deja vu. Turns out what I was typing to them was almost exactly the same argument I offered in this blog post.
But on rereading it and thinking about it, I realize there's a bit more I wanted to say about Professor Carter's argument, because there's something a bit misleading about it. Indeed, I think it's dead wrong on one level. Here's the passage I mean:
To begin with, I agree with Professor Carter about the seriousness of invoking the power of law. Every law is by definition a constraint upon someone's freedom, and we should be very reluctant to impose such constraints without good reason. As I've written many times before in this blog, the only reason that justifies such limits on freedom is that, on the balance, the law should make us more free than we would be without it; we invest some freedom here to enjoy greater freedoms elsewhere.
And Professor Carter is correct that enforcement of the law, even in a civil contract dispute, may ultimately end up involving violence. I could quibble that the sheriff, behaving lawfully, would not shoot the breacher for non-violent resistance, but the sad fact is that sheriffs and police officers also behave unlawfully sometimes, and use unwarranted force. And so there is always the possibility that invoking the power of the law could result in an escalation to violence.
But that is where I think his argument is dead wrong, because the risk of escalation to violence is not some special danger peculiar to law, but an inherent feature of human conflict. It's always possible that the person you're dealing with -- or an ally acting on your behalf -- might get violent, and so the caution that one should only invoke the power of law when willing to kill is misplaced. If you're in a contract dispute with the kind of person who is likely to violently resist lawful execution of a lawful judgment, then you're also dealing with someone who is likely to violently resist any other attempts you might make to vindicate your rights, whether or not you invoke the power of the law.
Let me back up a bit, though, because I want to make a distinction between Law and the law, and it's analogous to the difference between Science and the science. It always annoys me a bit when someone says "Science says Bigfoot doesn't exist" or "According to science, global warming is real," not because of whether I agree or not with the claim itself, but because Science doesn't say any such thing. Science isn't some authoritative canon of facts; it is a process for evaluating whether or not any particular theory about the world is consistent with the world.
But saying "According to the science, Bigfoot doesn't exist" is fine, because "the science" reads as shorthand for "the results of the science we have done on this particular question so far", a tacit acknowledgment that while the science we have done so far leads to the current conclusion, there may be other science yet to do that supersedes it.
Like Science, Law is not some canonical body of obligations, but rather a process. Specifically, Law is a process of dispute resolution, where the parties to a dispute present their evidence and arguments to a disinterested decision-maker, who considers their arguments and decides by applying generally accepted principles. These generally accepted principles, by the way, are often called the law, and I want to suggest here that this is just like the science, in that the current consensus on what rights and obligations exist is a result of the law-ful process we've done on the issue so far, not necessarily the final definitive pronouncement of Law Itself. Since Law is fundamentally a dispute resolution method, and there can be disputes about what the law should be, that can change. Statutes are struck down as unconstitutional, old precedents are overturned as values and understandings change. This is all part of how Law works. Law does nothing more and nothing less than resolve disputes.
(It's worth noting that in the ordinary course of things, Law also prevents disputes, because most of the time people have a pretty good idea of how a court will decide, and act accordingly. So, for example, people who might otherwise be tempted to breach a contractual promise choose not to, because they know they'll almost certainly lose if it goes to trial.)
All right, so maybe capital L-Law isn't coercive or violent, but what about the law, the various rules that may be in force at any given time? What about Professor Carter's example of the potentially violent consequences of enforcing a civil judgment? Or more to the point, what about the outright threat of imprisonment or even capital punishment that is supposed to deter people from defying the criminal law? How is that not a coercive use of violence?
At first glance, it certainly looks like one: "Don't do that, or we'll lock you up." And indeed, it's very useful for certain people to think of it that way, to see imprisonment as a consequence of criminal activity. And that "or else!" formula is exactly what coercion is all about, so it's quite naturally to think of the law as coercive. But it's a mistake to attribute that coercion to the law, because coercion is a background fact about nature, quite independent of the existence of Law. Laws can only constrain options, not create them (except by pruning away other options that interfere with their practical exercise).
Law does not empower the state to use violence against you. In lawless states, they have no trouble at all using violence. Rather, in rule-of-law countries, Law generally prohibits the state from punishing you, except when certain narrowly defined conditions are met. (Usually, those conditions include the requirement that the state prove beyond a reasonable doubt that you are guilty of some transgression.)
So again, even in criminal matters, Law is simply a process of dispute resolution. The prosecutor wants the accused to be locked up, and the accused wants to be set free. Both parties are given the opportunity to present their evidence and argument, and the court decides. If there's no dispute, there's no trial; either the prosecutor declines to bring charges (and the court isn't involved at all), or the accused pleads guilty, and the court's involvement is mostly ceremonial, giving a formal assent to the joint sentencing submission. (Mostly. Sometimes the judge wants to impose a harsher sentence than the prosecutor recommends. But in such cases, the judge can be thought of as trying to consider the interests of people not present but who could could be expected to dispute the sentence. Again, no dispute, no need to involve the court.)
I argue, then, that Law is not itself coercive at all, because all the coercion that exists is independent of law. All Law does is decide when coercion should be allowed, ideally with an eye to minimizing the total amount of coercion and maximizing freedom. The natural world is one in which we humans can and do coerce each other in many ways, and prohibiting the state from any coercion means permitting individuals and groups to engage in coercion with impunity. It's a difficult balance, to be sure, and doomed to imperfection. But the perfect is, after all, the enemy of the good.
But on rereading it and thinking about it, I realize there's a bit more I wanted to say about Professor Carter's argument, because there's something a bit misleading about it. Indeed, I think it's dead wrong on one level. Here's the passage I mean:
On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.
To begin with, I agree with Professor Carter about the seriousness of invoking the power of law. Every law is by definition a constraint upon someone's freedom, and we should be very reluctant to impose such constraints without good reason. As I've written many times before in this blog, the only reason that justifies such limits on freedom is that, on the balance, the law should make us more free than we would be without it; we invest some freedom here to enjoy greater freedoms elsewhere.
And Professor Carter is correct that enforcement of the law, even in a civil contract dispute, may ultimately end up involving violence. I could quibble that the sheriff, behaving lawfully, would not shoot the breacher for non-violent resistance, but the sad fact is that sheriffs and police officers also behave unlawfully sometimes, and use unwarranted force. And so there is always the possibility that invoking the power of the law could result in an escalation to violence.
But that is where I think his argument is dead wrong, because the risk of escalation to violence is not some special danger peculiar to law, but an inherent feature of human conflict. It's always possible that the person you're dealing with -- or an ally acting on your behalf -- might get violent, and so the caution that one should only invoke the power of law when willing to kill is misplaced. If you're in a contract dispute with the kind of person who is likely to violently resist lawful execution of a lawful judgment, then you're also dealing with someone who is likely to violently resist any other attempts you might make to vindicate your rights, whether or not you invoke the power of the law.
Let me back up a bit, though, because I want to make a distinction between Law and the law, and it's analogous to the difference between Science and the science. It always annoys me a bit when someone says "Science says Bigfoot doesn't exist" or "According to science, global warming is real," not because of whether I agree or not with the claim itself, but because Science doesn't say any such thing. Science isn't some authoritative canon of facts; it is a process for evaluating whether or not any particular theory about the world is consistent with the world.
But saying "According to the science, Bigfoot doesn't exist" is fine, because "the science" reads as shorthand for "the results of the science we have done on this particular question so far", a tacit acknowledgment that while the science we have done so far leads to the current conclusion, there may be other science yet to do that supersedes it.
Like Science, Law is not some canonical body of obligations, but rather a process. Specifically, Law is a process of dispute resolution, where the parties to a dispute present their evidence and arguments to a disinterested decision-maker, who considers their arguments and decides by applying generally accepted principles. These generally accepted principles, by the way, are often called the law, and I want to suggest here that this is just like the science, in that the current consensus on what rights and obligations exist is a result of the law-ful process we've done on the issue so far, not necessarily the final definitive pronouncement of Law Itself. Since Law is fundamentally a dispute resolution method, and there can be disputes about what the law should be, that can change. Statutes are struck down as unconstitutional, old precedents are overturned as values and understandings change. This is all part of how Law works. Law does nothing more and nothing less than resolve disputes.
(It's worth noting that in the ordinary course of things, Law also prevents disputes, because most of the time people have a pretty good idea of how a court will decide, and act accordingly. So, for example, people who might otherwise be tempted to breach a contractual promise choose not to, because they know they'll almost certainly lose if it goes to trial.)
All right, so maybe capital L-Law isn't coercive or violent, but what about the law, the various rules that may be in force at any given time? What about Professor Carter's example of the potentially violent consequences of enforcing a civil judgment? Or more to the point, what about the outright threat of imprisonment or even capital punishment that is supposed to deter people from defying the criminal law? How is that not a coercive use of violence?
At first glance, it certainly looks like one: "Don't do that, or we'll lock you up." And indeed, it's very useful for certain people to think of it that way, to see imprisonment as a consequence of criminal activity. And that "or else!" formula is exactly what coercion is all about, so it's quite naturally to think of the law as coercive. But it's a mistake to attribute that coercion to the law, because coercion is a background fact about nature, quite independent of the existence of Law. Laws can only constrain options, not create them (except by pruning away other options that interfere with their practical exercise).
Law does not empower the state to use violence against you. In lawless states, they have no trouble at all using violence. Rather, in rule-of-law countries, Law generally prohibits the state from punishing you, except when certain narrowly defined conditions are met. (Usually, those conditions include the requirement that the state prove beyond a reasonable doubt that you are guilty of some transgression.)
So again, even in criminal matters, Law is simply a process of dispute resolution. The prosecutor wants the accused to be locked up, and the accused wants to be set free. Both parties are given the opportunity to present their evidence and argument, and the court decides. If there's no dispute, there's no trial; either the prosecutor declines to bring charges (and the court isn't involved at all), or the accused pleads guilty, and the court's involvement is mostly ceremonial, giving a formal assent to the joint sentencing submission. (Mostly. Sometimes the judge wants to impose a harsher sentence than the prosecutor recommends. But in such cases, the judge can be thought of as trying to consider the interests of people not present but who could could be expected to dispute the sentence. Again, no dispute, no need to involve the court.)
I argue, then, that Law is not itself coercive at all, because all the coercion that exists is independent of law. All Law does is decide when coercion should be allowed, ideally with an eye to minimizing the total amount of coercion and maximizing freedom. The natural world is one in which we humans can and do coerce each other in many ways, and prohibiting the state from any coercion means permitting individuals and groups to engage in coercion with impunity. It's a difficult balance, to be sure, and doomed to imperfection. But the perfect is, after all, the enemy of the good.
Subscribe to:
Posts (Atom)