Gun Idolatry

Back in August I blogged about an argument against gun control that I thought was particularly silly. Unfortunately, I used up the title that I really wanted to use for this post, a critique of the old NRA slogan "Guns don't kill people; people kill people."

It's a brilliant piece of rhetoric, because on a moral level, it's absolutely true. People are blameworthy for the good or the evil they do, and guns only do evil as instruments at the direction of people. Of course we shouldn't blame guns, but the people who point them at other people.

(That's a little loaded in itself, appealing to our sense of justice in asking us not to blame the poor innocent guns for what people do with them. But by that very same token, guns don't have any rights to justice, and we don't need to care about treating them unfairly if we do blame them for violence. Even if their availability contributes just a little bit to elevated rates of violence, we could be justified in destroying them all, and we wouldn't have to apologize to the poor innocent guns at all. Their owners might have a moral claim, but guns themselves are just inanimate objects with no right not to be scapegoated for our sins.)

From a moral perspective, placing responsibility on human beings is absolutely appropriate, so it's hard to take issue with the slogan there. Indeed, I think this is a very important point often overlooked in the wake of tragedies like last week's horrific school shooting, as we make a deliberate effort to forget the shooter and remember the victims. Well-meaning as that is, and as repugnant as it seems to "reward" the pathetic loser by paying him the attention we presume he wanted, we should remember that our moral obligation is watch out to make sure we don't do bad things, and so we should always be alert to catch in ourselves the kind of error or psychosis or whatever it is that leads people to do bad things. To that end, alas, we really ought to try to understand how the shooter went astray, so we can better avoid taking the same path. Our moral obligations have to do with our role as potential villains, not as potential victims, and so it is the potential villain inside us we must be ever vigilant to identify.

I cannot fault the slogan for reminding us of this. As people, we need to remember that it's not our guns but ourselves we must blame. Guns don't kill people; WE kill people. And if that were the whole of the slogan's meaning, I'd be fine with it. But it's not.

See, there's another reading of the slogan, one that comes out if we read it not from the perspective of a potential villain, but as a potential victim. If you read it this way, it's much more terrifying, insidious, and destructive: Guns won't kill us; people will kill us. Those people, they're dangerous, be afraid of them. Arm yourself; you may need to shoot them.

That fear-soaked message is, I think, central to the gun psychosis of American society. I don't have a problem with people owning guns because they use them for hunting or they enjoy target shooting or they collect them or study them or just think guns are cool. It doesn't bother me that guns are designed to kill people; so are swords, and I have no problem keeping a sword in my house. No, I have a problem with people owning guns because they are afraid. Fear is the problem; frightened people are dangerous.

Why are people afraid, and what are they afraid of? Well, they think they're afraid of criminals or the government or the New World Order coming and imposing its will by force. And sure, these are things against which we should be on guard, of course. But underneath it all is an excessive, irrational and almost mystical terror of violence. Nothing is quite so terrifying, it seems, as the threat of violence. Dying in car accident? Well, yeah, it could happen, but everyone still drives. Lung cancer? Meh. If you gotta go, you gotta go, but don't take away my cigarettes. But somehow, if someone puts a gun to your head, you have to do what he says?

People talk about violence being glorified, but I'm not sure that's the right word. It's mystified, and thus made somehow supernaturally powerful. And so naturally, people who are afraid want to possess this power for themselves, perhaps thinking it will make them less afraid, though it doesn't really, since they know that other people also have guns. Frightened people are dangerous, but frightened people with guns even more so.

Okay, okay, maybe we can blame the occasional (well, appallingly frequent) gun death of an innocent on the twitchy trigger fingers of paranoids, but surely the losers responsible for mass public shootings aren't acting out of fear, are they? No, of course not. But they do often seem to be people who feel powerless in their daily lives, and in a society where guns represent power, what do you expect?

So I don't think the problem is, exactly, that Americans have too many guns. It's that they think they need them, and the very unwillingness to even discuss the possibility of putting stronger regulations in place is symptomatic of that profoundly unhealthy fear. Paradoxically, if they were able to talk about gun control, they wouldn't need to talk about gun control. 

Reflecting on December 6, 1989

     I confess to having, despite my best efforts, a bit of a chauvinist streak. Perhaps that's putting it too strongly, but it manifests itself this way: my visceral sense of horror at the idea of violence is greater when the victim is female. I don't know why I should feel this way. It could be cultural (the stigma attached to a boy who hits a girl is significant, or at least it was when I was growing up), but I don't think so, because I've been able to consider and reject other such indoctrination. More likely, I'm just hardwired to view the loss of a potential mate as less desirable than the loss of a potential rival for mates.

     Whatever the reason, I recognize that from a philosophical moral perspective, it's an irrelevant consideration, a personal preference that should play no role in reasoned discussion about public policy. So while I may personally feel especially horrified at the Polytechnique massacre (whose 23rd anniversary was this past week), I have to remind myself that it would have been every bit as wrong and horrible if Marc Lepine had singled out and killed just the men in the class instead of just the women. The sex of the victims should make no difference in our evaluation of tragedy, and my gut reaction (that it's somehow worse that women were killed) is actually a part of the patriarchal world view that got us into this mess.

     And so I have always felt very uncomfortable with the way this tragedy has become an emblem for raising awareness of Violence Against Women. One the one hand, I accept that violence against women really is a specific problem we need to raise awareness of. And yes it was violence, yes it was against women, and yes they were specifically targeted as women. Yet something still feels wrong. How can violence against women not be violence against women?

     Let me back up a bit. Why do we need to raise awareness in the first place? What is it about violence against women that differs from violence against men or indeed any hate crime against any identifiable demographic? Why do we not need to raise awareness of violence against mimes or Norwegians or agnostics? Isn't violence against anyone equally bad?

     Of course it is. It's not that violence against women is worse than other kinds of violence, but rather that there's a particular kind of pathology involved that doesn't apply to most other sorts of violence, and doesn't even apply in every case where the victim happens to be female, either. (My fencing coach happens to be a woman, and though I rarely manage to hit her, I do try.)
     Let's start with domestic violence, which is typically (though not exclusively) carried out by men against women. Historically, we've studiously ignored this as a "private matter." It was assumed that a man had a right and obligation to discipline his wife, and how he chose to do it was nobody else's business. Police and the courts were loath to interfere. But to ignore such violence is to tolerate it, to tacitly endorse it.
     To most of us, that rationale sounds kind of old-fashioned, and likely to many abusive men as well. There is another sort of wife-beater, after all, the passionate guy who just loves her so much that he can't help himself when he gets angry baby don't you understand. It's not like these guys think it's okay, exactly, to react violently, but they and the mates who take them back make excuses, treat each incident as an exception rather than part of a pattern, and again, ultimately ignore the pattern, thus permitting it to continue.
     It's not limited to domestic violence, of course. The deep-seated attitude underlying all of this is the presumption that women are, in some sense, property of men, resources to be exploited rather than people to be respected as equals. That attitude leads to rape and related subjugations, and our habit of ignoring or excusing domestic assaults leaks over somewhat when it comes to rape. We're still kind of inclined to blame the woman for leading him on or dressing provocatively or making up the whole thing, perhaps because it's just so much easier to ignore the problem and hope it goes away.
     THAT is why we have to raise awareness. It's our ingrained habit of turning away, of acting like it's no big deal or just a private matter or that it doesn't really happen, that perpetuates the presumption that women aren't fully persons, and the violence it spawns.

     Now, it's probably the case that Marc Lepine had that same insidious attitude about the proper role of women when he blamed feminists for "ruining his life". I remember reading at the time that his application to attend l'Ecole Polytechnique had been rejected, and he most likely thought that he'd have gotten in if only it hadn't been for those darned women taking "his" spot. Why couldn't they stay at home, barefoot and pregnant like they're supposed to? Perhaps that was his rationale, and so it is connected to the very problem of which we need to raise awareness.
     But the connection is long and tangled, and not immediately obvious. It's easy to imagine, after all, some troubled loser blaming immigrants, or natives, or wealthy white guys, or virtually any other demographic, for his problems and carrying out a similar rampage, and in fact that does happens from time to time. So one can look at the Polytechnique massacre as just another hatecrime, where the targeted group happened to be "women taking positions in engineering classes", without recognizing Violence Against Women as being fundamentally different from, say, Violence Against Orthodontists in this context.
     So even if the massacre was a culmination of the problem we're trying to raise awareness of, the people we most need to reach are not going to make the connection. The rapist (or rapist sympathizer) will look at that and not see himself, because he's not taking a gun into a public place and shooting women and then taking his own life; indeed, he may well condemn the crime himself (even if only lamenting it as a waste of young women for whom he has better uses). The man who loses control and beats his girlfriend or wife won't see himself; he'd never hurt a stranger, after all. And the cops and judges who look the other way when a man "disciplines" his wife aren't going to see this shooting as a private matter into which they should not intervene.

     That's why I feel so uncomfortable treating this tragedy as symbolic of violence against women. It troubles me that using it this way tends to emphasize the gender of the victims, rather than the pathology of thought that we need to fix. That pathology is the idea that women aren't fully persons in some sense, that they are valuable property to be cherished and protected, or that it would be a violation of some other man's property rights to damage them. We don't address that pathology by saying that violence against women is wrong, because that's perfectly compatible with the view of women-as-objects. We address it by reinforcing the idea that violence against people is wrong, and raising awareness of the fact that yes, in fact, women are people, dammit!

Traffic Rules: It's not about you.

     People often complain about traffic regulations, particularly speed limits (and rules against following-too-close, one of my pet peeves), on the basis that they don't improve safety. "I'm a good driver," they say. "I'm alert and I pay attention, and I can judge my stopping distance and control my vehicle at much higher speeds that the posted limit."

     That may well be true, although it probably isn't, considering how many people consider themselves to be above-average drivers. But even if it is, it is based on a narrow and unreflective conception of why we have traffic laws. They aren't just about preventing accidents; they're also about maintaining an efficient and orderly flow of traffic so people can actually get where they're going.

     Let's start with a very simple example. You might feel more comfortable driving down the middle of the road, with more room to spare in avoiding parked cars or other obstacles at the side of the road, but we have a convention of driving just on the right side of the street (or left if you happen to live in England or Japan). This isn't really about preventing collisions, because presumably if we had no rules about what side of the road to drive on, people would be alert to the possibility of oncoming traffic and usually be able to stop in time. Rather, it's a way of sharing the road so that traffic can move in both directions, smoothly and efficiently. Instead of stopping to get into arguments about who was there first and who should get out of the way, we just instinctively move over to the right and drive past each other without incident, arriving at our destination sooner than we would otherwise

     We rarely get people demanding the right to drive on the left if they should choose, and complaining about the The Man telling us what side of the road to use. But the safety rationale for speed limits seems fuzzier; while there is a very clearly marked line down the middle of the road that we all recognize we should not cross if we don't want a head-on collision, it's a lot easier to rationalize that driving a mere 20 klicks over the posted limit isn't all that much more dangerous than 5 or 10 klicks.
     Even if that were true (which it isn't), it doesn't matter. The speed limit isn't there because The Man thinks you're not a good enough driver to handle your vehicle at higher speeds. Like driving on the right side, it's a way of sharing the road so that we can all get where we're going with minimal delay.
     Consider: You're at a stop sign, waiting for a break in traffic to cross the street or merge into traffic. How big a gap do you need? Well, obviously that depends on how fast traffic is moving, and how fast you can accelerate. The faster traffic is moving, the bigger a gap you need, and consequently, the longer you'll have to wait. The longer you have to wait, the less your total travel time benefits from higher speed limits, and there is a point at increasing the speed limit actually decreases total average speed.
     The same principle applies to lane changes. If you find yourself stuck behind someone going slower than you'd like, it's reasonable to want to pass them by moving into another lane. But if traffic in that lane is going very much faster than you are, it will be much harder to find a safe opportunity to do so. So you are delayed longer, driving slower than you'd like to, because people in the other lane are allowed to drive as fast as they want. Again, a lower speed limit in this situation is to your benefit, because it gives you more chances to actually drive at that speed, rather than being delayed by the difficulty of merging into the higher speed lane.

     So, counterintuitive though it seems, speed limits are actually intended to speed you up, to get you and everyone else where you're going as fast as possible by sharing the road. The road is a scarce resource, and traffic laws are as much about fairly distributing that resource as they are about saving lives.

What Do Patents Encourage?

     A month ago, I posted complaining about how copyright law has imposed costs on the rest of us, prompted by my frustration in trying to legitimately copy some files from a CD-ROM to an iPad. This morning I had an experience that added to my frustration with intellectual property law, this time in the form of patents.
     The whole reason for having patent law is to encourage innovation, but at least sometimes I suspect  it does the opposite. I was driving my son to school in an older car a cassette deck where the CD player ought to be, when it occurred to me that, given how small MP3 players are now, shouldn't it be possible to build one into a device that emulated a tape cassette? You just make a little induction coil or some such gadget to interface with the tape head of the cassette player, and use that as an output. Have sensors in the reel sockets to detect when the cassette thinks it's playing, rewinding or fast-forwarding, maybe even have them draw some power from them for recharging, and there you go. All the technology to do this exists; it should be fairly simple to build such a device.
     As I thought about this, I realized that there were various hurdles to overcome besides the technical. The first one, I thought, from a business perspective would be market: how much demand would there actually be for this thing? I mean, there are still cassette players around, but for how much longer, and is it cost-effective for anyone to buy this gadget instead of just getting something up-to-date? But perhaps, if it were cheap enough, for people who just like their old stereo systems.
     The thing that really gave me pause, though, was patent law. Surely, I thought, someone else would have thought of this invention before I did. And that meant that if I were to go out and create this device and try to sell it, I'd probably get sued by whoever registered the patent on it. Even if nobody else had patented it and I didn't want to apply for a patent myself, I'd still need to search through patents to ensure that I wouldn't be running afoul of someone else's rights by creating such a device.

     This is all academic, of course, because I'm not at all technically adept enough to design and build this thing, and I'm not actually all that interested in marketing it either. (Also, I was right that someone else probably had thought of it, and built it. Turns out there are several on the market already.) But what I found striking was that of all the obstacles to turning an idea into a reality, the one that discouraged me the most was the whole business of patents. I just didn't want to have anything to do with the kind of research that would involve, and I've been to law school!

     That's not to say that patent law always discourages innovation. For people and companies who have ideas with solid economic potential, it is certainly worthwhile to invest the time and resources in developing the invention and applying for the patent. But for borderline case? For things that might be useful? Here is where things get iffy.
     Laws are generally intended to promote some sort of behaviour and discourage others, but it often turns out that the behaviour a law actually  promotes is not the behaviour it's intended to promote. Cynically, some people (wrongly) say "it's only illegal if you get caught." More accurately, you're only punished if you get caught, but the point here is that people often consider it more cost-effective to modify their behaviour around the practical consequences more than the actual intention of the law.
     Patent law is no different. As much as we might want patent law to encourage innovation, it isn't actually innovation that is encouraged, but the use of patent law itself. You aren't rewarded for coming up with and marketing a good idea so much as you're rewarded for applying for and asserting patent rights. Suppose two identical twins separated at birth independently come up with a brilliant idea, and both go through all the steps needed to develop it for market, but one of them applies for a patent and the other doesn't. Which one will reap the rewards? Clearly, all other things being equal (and here we've postulated that they are), it's the act of going to the patent office that's rewarded, not the innovation itself.

     Again, I don't have a solution for this. I don't have an alternative to patents to propose here, anymore than I was able to suggest an alternative to copyright. But I do think we should be aware of how sometimes our policies work against themselves.

Who needs laws?

     There is quote going around, attributed to Plato, that reads as follows: "Good people don't need laws to tell them to act responsibly, and bad people will find a way around the laws." It's an attractive sentiment, and one I'm inclined to agree with.... sort of. But I can't seem to find the passage in the works of Plato himself, and in hindsight that's not terribly surprising, because for all his talk about the ideal world of forms, Plato wasn't exactly an idealistic anarchist.

     The closest to this quote I've been able to find by googling Project Gutenberg has been this, from (not surprisingly) The Laws. 

For if a man were born so divinely gifted that he could naturally apprehend the truth, he would have no need of laws to rule over him; for there is no law or order which is above knowledge, nor can mind, without impiety, be deemed the subject or slave of any man, but rather the lord of all. I speak of mind, true and free, and in harmony with nature. But then there is no such mind anywhere, or at least not much; and therefore we must choose law and order, which are second best. 

     So here, the idea is that if people were smart enough to know what's right and wrong, we wouldn't need laws, but few people are that wise. Law is an imperfect compromise, then, says Plato, but a necessary one.
     The problem we have, of course, is that lawmakers are themselves human and rarely much if any wiser than the people to be governed by those laws, so agreeing to follow the laws doesn't seem to get us any closer to doing the right thing than if we were to simply choose on our own.

     But I think it's a mistake to think the law is there to tell us what's right. We need laws because we don't all agree on what's right. If we all agreed (even if we were all wrong) that a person ought to do X in situation Y, then we wouldn't need law, because everyone would do X in situation Y and no one would have a problem with it, regardless of whether it was objectively right or wrong, and there would be no need for law. So I prefer to think of the law as the weapon with which we finally resolve our disputes in civilized societies, when we cannot resolve them by more amicable means.

     I mean that in more than just a figurative sense, because I believe the law really is a weapon. Consider what distinguishes use as a weapon from other sorts of tool use: weapons are used to reduce the capabilities of the target in some way. A knife can be a tool for separating bits of flesh from each other in surgery or in combat; in surgery the intent is to effect some sort of repair that ultimately enhances the capabilities of the patient, while in combat the intent is to reduce (or eliminate) the target's ability to fight.
     The law is purely a weapon in this sense. Law cannot create freedoms; it can only reduce them. But, by pruning away certain freedoms (such as, for instance, the freedom to commit murder), we can allow other freedoms to flourish that otherwise would have been suppressed (such as the freedom to do things that you can't do when you've been murdered).
     It may not look like the criminal law is about dispute resolution, but taken as a whole I think it is. It's illegal to kill people not so much because we all (or most of us, anyway) agree that murder is immoral, but because murder violates the rights of the victim to exercise autonomy. So does any sort of violence. Theft and other property crimes are extensions of property law, which is how we resolve disputes over who gets to make decisions involving scarce resources. Contract law allows us to artificially and voluntarily reduce our freedom to break promises, enabling us to rely more on agreements and on the whole, enhancing our range of choices. And so on generally: the ultimate role of law is to resolve disputes.

     And that's why we need laws. Not to tell us right from wrong, but to allow each of us to seek after what seems to be right, whatever that may turn out to be.

Guns Don't, People Do.

     There are all sorts of arguments for and against legal restrictions on gun ownership, but one of the more disturbing arguments I hear from time to time is the one that certain Americans raise: that an armed populace is the best defence against a tyrannical government.

     Now, I don't mean to reject that entirely, because certainly there have been many tyrannical governments overthrown by force of arms throughout history. And there are instances where armed citizenry have made it difficult or even impossible for foreign powers to invade and occupy a country. A realist must recognize that there is a role for weapons and violence in this world, if only because others give them a role. I certainly understand the sentiment (misattributed to Thomas Jefferson) that it is better for government to fear the people than for people to fear the government, though I disagree very much: it is fearful governments that are the most dangerous to their people. (More on that in a later post, I expect; I've been meditating again on the nature of fear quite a bit since this Officer Wawra story broke.)

     But this whole approach to combatting government tyranny is doomed, because it buys into Mao's famous dictum that political power grows out of the barrel of a gun, and that view of power is at the core of tyranny. One can imagine (or at least fantasize about) a benevolent tyranny where those with a monopoly on lethal force wield it with benign restraint and only for our own good, but tyranny is tyranny is tyranny.

     No, the answer to tyranny is not force. The truly revolutionary development that has lead to the spread of liberty was not the idea of arming the populace. There was nothing at all new about that; weapons have existed in private hands far longer than we've even had governments. The really important change has been the growth of the rule of law, the idea that people have rights and that disputes should be settled according to generally accepted universal principles rather than the personal preferences of any individual.
     This is much more than simply an idea that people hear about; there's probably no society without at least the idea of rules. What matters for the rule of law to take root is for enough people to genuinely embrace the concept, and to agree to abide by rules even when it is not in their immediate interest to do so. And of particular importance is that the people with the guns firmly adhere to this principle. That's why the militaries of developed countries are ultimately under lawful civilian control, and have such strict disciplinary systems in place.

     It's a subtle idea, and while it's well-established here, its grip is always a bit tenuous. Sometimes it's counterintuitive, as when we extend legal protections and due process to the nastiest of criminals. Sometimes it's just inconvenient, like when we stop for a red light at 3:00 a.m. and there's no one else on the road. But the fact that most of us usually obey the law for no other reason than that it is the law is the core of what protects us against tyranny. A tyrant can only become a tyrant if people obey him, and in a rule-of-law society, unlawful commands tend not to be obeyed.

     So the thing to do is to be ever vigilant against attempts to shape the law to the purposes of the tyrant. That means engaging in the political process, arguing and advocating and talking and listening, and steadfastly rejecting coercion. In other words, guns don't protect us against tyranny; people protect us against tyranny.

LARP Ethics and Why Linda Gibbons' Case Isn't Inflaming the Passions of Civil Liberty Groups

     The other day, a friend called my attention to the case of Linda Gibbons, who has spent a great deal of time in jail in connection with picketing abortion clinics. My friend was concerned about what he sees as hypocrisy among civil liberty groups who have not rallied to defend Ms. Gibbon's free speech, apparently because it's speech that goes against the right to have an abortion which civil liberty groups support.

     I was troubled by this as well at first, and still am to some extent. My own view is that freedom of speech is the most basic, most fundamental, most indispensable right in any society that aspires to being in any way just. I've long held that the proper approach to things like hate speech is to counter it forcefully with intelligent and persuasive criticism, rather than to attempt to silence it through censorship. So my gut feeling is that people ought to be permitted to peacefully express their opinions anywhere and at any time, and my instinct is that injunctions against peaceful protest had better have very, very good reasons or they shouldn't be granted.
     The problem for me is that I don't really know if the injunctions in this case were really warranted. On the one hand, there's the freedom of speech point, which militates very strongly against any such injunction. Yet at the same time, we have to remember the situation on the ground in the access to abortion issue; it's not always easy to draw the line between legitimate, peaceful demonstration and intimidation which has no place in a free society.
     Intimidation, real menacing intimidation, can be quite subtle, and depends very much upon context. Let's consider the circumstances. First, genuine violence has been carried out against abortion clinics, their staffs and patients. Moreover, not all involvement in violence is direct; there have been (and for all I know still are) websites that publish the names and home addresses of abortion providers with the implied intention of facilitating harming them. So the act of peacefully standing by an abortion clinic, expressing your disapproval, isn't necessarily going to be interpreted that way; there's also the unavoidable unspoken message: "I see you, I know what you're doing, and I think you're a murderer."
     Second, consider the demographics of the targets of protests: women with unwanted pregnancies. A significant number are likely alone, feeling especially vulnerable and struggling with a very difficult life choice, and especially in need of privacy. Some may have parents or friends or family from whom they wish to keep this decision. In that context, even a genuinely peaceful protest can be especially intimidating.

     I think what made me sensitive to this issue was thinking about a question in LARP ethics, of all things, several years ago. The question arose: is it ever okay to roleplay a rape scene? (I am assuming that the roleplayed scene would be described rather than physically acted out.) In general, I see LARP (when it's done well, that is) as an expressive medium, a legitimate form of theater in which no subject matter should be off-limits. However, one always needs to be sensitive to one's audience, and especially so in LARP where one's audience may be just one person. If I and a female player are off in the woods ostensibly seeking the lair of some ogre, and then when no one else is around I suddenly turn on my partner and roleplay an assault, I had better be very sure she knows and trusts me very well, and understands the artistic legitimacy of what my character is doing and why, because otherwise the unintended message she receives could be "Oh look. We're along in the woods, I'm bigger than you, and the thought of raping you just crossed my mind. Of course, it doesn't have to be rape..." That is absolutely not a message you want to send, and so I reluctantly concluded that, in some contexts, it's legitimate to limit certain kinds of speech, even when the intent is perfectly innocent.
     I'm not entirely comfortable with that, but I can live with it, in part because other contexts exist where it is safe to discuss the same themes without realistic fear of being misunderstood. (Some people will misunderstand you no matter what, of course, but that can't be helped.) If one can't responsibly address issues of rape in a LARP, one can still write novels, essays, and discuss the topic in safe environments where no threat can reasonably be inferred.

     And so the same seems to me to be true of the injunctions Ms. Gibbons violated. It does seem extreme, on the face of it, to prevent all protesting within a certain distance of the abortion clinic, and so I'm not fully comfortable with that. At the same time, I can see arguments for why such an injunction might well be reasonable, and of course she is still free to express her views anywhere else.

      (I feel a need to contrast this with other so-called "free speech zones", by the way, where authorities prohibit any demonstration or expression of certain views within a certain distance of a motorcade route or conference site. I am steadfastly against those sorts of limits, and the difference there is about who has the power, and who gets to control the message. A lone young woman going to terminate a pregnancy has virtually no power, and is very vulnerable. The President of the United States giving a speech to campaign contributors doesn't fall into that category, and his purpose in clearing the streets of signs and t-shirts of contrary messages isn't to be shielded from intimidation, but to control the image: he looks better on TV when he appears in front of crowds of enthusiastic supporters than if there are signs of dissent.)

     But as I said, I'm not really sure where I stand on this one, because I'm not fully convinced the original injunctions were fully reasonable. I can see reasons why they might be, but I'm uncomfortable about any limits on free speech. And that, at least, I think explains why there hasn't been as much of an outcry from civil liberty groups about Ms. Gibbons' case. Two important civil liberties are in conflict here, the right to seek lawful medical intervention without being intimidated, against the right to free speech. The case is nuanced, and it's not immediately clear which side someone who values both liberties should take.

Why I'm Against the Death Penalty

     The other day, I mentioned parenthetically that I would get to my reasons for opposing capital punishment in another post. Ere I forget, I'm writing that another post now. I have two main reasons for my position. One is moral/philosophical, and I might get to that in another post. The other is legal, and that's what I'm going to talk about in this article.

     There are two kinds of rights we have in our legal system, substantive and procedural. Substantive rights include what we usually think of as basic human rights (rights not to be tortured, to worship or believe what one will, to vote in elections, and so forth) but also can include special rights such as those gained under a contract or by statute; under a contract, if you do your part, you have a right to what the other party promised. Substantive rights can be disputed at times, and won or lost under various circumstances.
     This is where procedural rights come into play. Procedural rights are rights to a fair process (hence the name) by which substantive rights can be determined. So, for example, you have a procedural right to a fair trial to decide whether or not you lose your substantive right not to be imprisoned.
     Procedural rights are interesting because although we usually speak of them as belonging to the accused (in criminal matters) or to the litigants themselves in civil matters, they are actually more diffusely owned by society as a whole. That is, we all have an interest in procedural fairness, and we all lose if our procedures become unfair (even if some of us happen to benefit from the unfairness). It's just that the parties to the dispute are the ones most immediately concerned with the process, and thus most likely to zealously assert those procedural rights. Besides, if one party should choose to waive those rights in a given case, no one else is in a position to complain about unfairness.
     Now, while substantive rights can be won or lost, procedural rights ought to be absolute, in part because they don't just belong to the accused. There is no crime so heinous that we would want to say you lose your right to a fair trial; no matter what you're accused of, you have a right to insist that the state prove its case against you before it can mete out punishment. And society also has a right to insist this as well, because (1) none of the rest of us want the state to be able to punish us without proof, and (2) society has an interest in making sure that we've got the right guy; it wouldn't do to convict you while the real culprit goes free.
     My legal problem with capital punishment, then, is not that it takes away substantive rights, but that it extinguishes all rights, substantive and procedural, absolutely and irrevocably. Once someone is executed, there is no possibility that new evidence can exonerate them, or that the law on sentencing could be changed, or that the Crown might grant a pardon. While I have considerable trust in the legal system in principle, part of that trust derives from the fact that it includes so many error-correction mechanisms, such as appeals, Acts of Parliament, and Crown prerogatives. Capital punishment deprives society of the opportunity to correct its errors.

You'd feel differently if...

     Yesterday I wrote about the idea of using convicted criminals for medical experiments, prompted by a Facebook status/share/chainletter thingy. Reading through the comments in support of this barbaric idea, I saw a few people who spoke out against it on basically humanitarian grounds, and the responses to these typically took the form of this argument: "You wouldn't say that if you or someone you loved were a victim of these monsters!"

    This is a very common argument, although I rarely see it in any context outside of crime and punishment. I happen to be opposed to the death penalty (for reasons I'll get to in another post), and nearly every time I get into a debate with someone who's in favour, they bring it up. It's easy to understand why: it's a very emotionally powerful argument, and what's more, it appears to be very effective at bringing out a contradiction in the position of the one arguing against capital punishment. How hypocritical, you might say, that I would oppose the death penalty in general but favour it for someone who had killed one of my loved ones. How hypocritical that I might oppose torture for molesters of other people's children while calling for the torture of anyone who molested my own.

     But there's a reason why we don't see this form of argument in other contexts: it's because it's actually a pretty stupid argument, when you stop to think about it carefully. Yes, it's true that I'd probably strongly desire the death of someone who murdered someone I loved. So what? Since when does powerful emotional trauma make someone a better judge of what is to be done? Is it not widely accepted in most other contexts that a strong emotional investment in an issue usually disqualifies one from making rational, objective decisions? We require judges to recuse themselves from hearing cases where they have close connections to one or both parties, and it's generally better if your surgeon isn't also your lover. Likewise, decisions concerning penal policy probably ought not to be made by those with an overwhelming personal agenda.

     It goes farther than that, though. Let's suppose we accepted the idea that overwhelming emotional desires made people better qualified to make policy decisions. It'd be hard to argue against a policy whereby the government provided free heroin to everyone on demand; after all, you'd feel differently if you were addicted to heroin and going through withdrawals!
     Indeed, this is where the argument finally becomes self-defeating. After all, it relies in large part on our shared sense of moral outrage against pedophiles and violent criminals; we want to say that we are entitled to judge these people's actions as wrong. Yet much of the time, probably most of the time, what they do is driven by overwhelming emotional desires. "Don't tell me not to molest children," one might tell us, "You'd feel differently if you were subject to powerful pedophiliac urges!" Well, yeah, I would feel differently. But I'm entitled to say I'd still be wrong to act on those urges, even if I had them.

     And so, by the same reasoning, I can say that while I might desperately want the state to execute someone who'd murdered someone I loved, it'd still be bad policy and bad for society at large to indulge that desire. It's natural, and perhaps even healthy, to want things that are ultimately bad for us. It's also right and proper to refuse to satisfy those wants.

On Using Prisoners for Medical Experiments

     This morning, one of my friends on Facebook shared an image which was basically just the following text: "Why test on Animals when we have Prisons full of Pedophiles?"

     It's an attractive idea. The the posting from which it was shared has, as of this moment, 44,463 shares and 3,169 likes. Of the hundred or so comments I skimmed through, a significant majority were enthusiastic approval, and only a tiny handful expressed reservations. Of those, all of them were based on a vague notion that cruelty and revenge are barbaric, and those were invariably criticized with almost as much venom as that directed against the pedophiles themselves.
     But as viscerally appealing as it might be to try to extract some positive benefit to society from people who do so much harm, it's a terribly dangerous idea, and so much more so because the danger is so subtle. I mean, on the face of it, what's not to like? Evil people suffer, good people benefit with medical cures.

     What's not to like is the insidious corrupting effect this idea will inevitably have on the administration of justice. The only consideration in finding someone guilty or not guilty of a crime should be whether or not the evidence points beyond a reasonable doubt towards guilt. A person should never be found guilty for reasons other than actually being guilty, and the danger of turning convicted criminals into any kind of valuable resource, whether it be labour, medical test subjects, or organ donors, is that someone will have an interest in seeing people convicted in order to realize the benefits of that resource.

     Imagine, for instance, that you are a judge or juror in a system where those convicted of serious crimes are executed and harvested for organ transplants. Imagine also that you have a child who will die without a liver transplant in the next month or so. The case before you is a man accused of a particularly nasty violent crime, and the evidence suggests that he's the most likely suspect. How much doubt is reasonable, when that doubt potentially costs your child a liver?

     That sounds like an extreme case, and we don't (yet) harvest criminals for organs in North America. (In Canada, we don't even execute them, so it's less likely to be a problem here unless we reinstate the death penalty.) And sure, the potential benefit from a cure found by experimentation on a single accused is so remote that it shouldn't influence the decision making in a single case, right?
     Well, not necessarily. The beneficiaries of a policy that made convicted pedophiles into test subjects wouldn't immediately be the patients whose diseases might one day be cured, but the pharmaceutical (or cosmetics?) companies looking for test subjects. There's value in that, monetary value. Profit. And where there's profit as an incentive, it'll find a way to grow.
     Consider the case of Mark Ciavarella, a judge in Pennsylvania recently convicted of receiving around a million dollars in "finders fees" from a for-profit detention center. This organization receives a fee from the state for every person committed to its care, which is how it earns its revenue and hence profits. Evidently they considered it a worthwhile investment to provide Mr. Ciavarella with a financial incentive to find juveniles guilty and sentence them to terms in its facility; more teens in care meant more profits, so up the conviction rate.

     Oh, but that's outrageous corruption, you might say. Obviously, judges who do that sort of thing should be charged and convicted, and just because someone does something illegal doesn't mean the system is bad when it's run by people who obey the law, right?
     Well, no, but there are lots of ways money can influence the system when it has an incentive to do so. And if it's in the financial interests of anyone, whether they be pharmaceutical companies or private prison operators, to increase the conviction rate then they will do so by whatever means is most cost effective, including lobbying for "tougher" laws to make it easier to find an accused guilty, relaxing the evidentiary standards for guilt, removing funding for things like Legal Aid intended to give the accused adequate legal representation, and so on. All of these things we see happening, in the U.S. and also, perhaps, in Canada. (The Conservatives haven't made public any plans for privately operated prisons so far, but they haven't really been very forthcoming about much of anything, and the way they've sold their crime omnibus bill certainly is consistent with such an agenda.)

     Crime is bad. That's something I think we can all agree on, and it's something we all ought to agree on. It follows from crime being bad that we'd all want to reduce it, so there's as little crime as possible. Who could possibly say it would be good to have more crime?
     I'll tell you who. Anyone who profits from it. And turning criminals into a resource for anyone's benefit creates people who profit from it.

Paying for Crime

"Fiat justitia, ruat caelum."  

     In a previous post, I criticized the Conservative government's Bill C-10, the omnibus crime bill sold as "getting tough on crime". I find it astonishing that there is any support at all for this, given how well we know that it won't work, from the examples of Texas and California, which are both regretting adopting similarly "tough" approaches. I'm also amazed at the continued push for "abstinence-only" sex education in  certain U.S. states, despite the well-documented consequences of higher teenage pregnancy and STD rates. I just naturally assumed that we all believed that rates of crime, teenage pregnancy and STDs were things we'd want to keep as low as possible. So how can people continue to support such demonstrably ineffective policies with such enthusiasm?
    For a while I just assumed that they didn't understand the problem, and genuinely held to the simplistic belief that these policies would work. To some extent, of course, that is the case; I have heard people argue with great sincerity that tougher penalties are sure to deter crime more effectively, and it's certainly true that abstinence is terribly effective at preventing pregnancy (even if preaching abstinence to teens isn't actually the best way to get them to practice it).
     But lately I've begun to wonder if maybe there isn't something else at play here. One thing I have noticed is that many of the people who advocate these policies tend to be very concerned about sin. They speak in terms of justice, and seem to find it profoundly disturbing that a wrongdoer might get away without appropriate punishment. Which brings me to the legal maxim quoted above:  "Let justice be done, though the heavens fall." 
     The maxim is perhaps most famous for its use in 1772 by Lord Mansfield in Somersett's Case, in which slavery was found to be illegal in England and Wales. Several thousand slaves were in the country at the time, many (like James Somersett himself) accompanying their masters from the American colonies, and Lord Mansfield was urged to consider the mayhem that would ensue from a judgment suddenly and radically changing the legal status of these thousands of slaves. Quite rightly, the judge considered those consequences to be irrelevant; slavery is an unlawful injustice, and cannot be perpetuated just to avoid inconvenience.
     And so it is a noble sentiment, that we should be willing to endure great cost and inconvenience to see to it that justice is finally done. We tend to admire as a hero Inigo Montoya for devoting his life to avenging his father's murder by the six-fingered man, enduring great hardship and sacrifice to bring a killer to justice.
     So I begin to think that perhaps some of those who favor moralistic policies like Bill C-10, abstinence-only education, and many other clearly ineffective but simple approaches, aren't actually concerned with results. What matters to them more is being morally righteous, and if the cost of harshly punished criminals is more crime, well, so be it; we'll just punish them harshly, too. It's almost as if it crime doesn't matter so long as it's "paid for" (and such people very often do speak of "making criminals pay", another unfortunate memetic pathology). If the cost of righteously teaching teenagers to wait until they're married before having sex is that, unfortunately, more of them won't wait, well, too bad; at least we haven't polluted ourselves by implying that premarital sex is okay.

     The trouble with this attitude is that, in the big picture (which is what policymakers are supposed to be considering), it ends up being paradoxically inconsistent with itself. On an individual case basis, we might well praise the diligent prosecutor who spares no expense to bring a particularly nasty wrongdoer to justice. From the perspective of the system as a whole, however, cost-effectiveness needs to be considered; spending the department's entire budget to imprison a single criminal means there are no resources left to go after all the others. At this level, the decision to focus on one criminal is also a decision to let all the others go unpunished.
     It gets worse. The decision to spend a disproportionate amount of resources on punishing a few criminals means fewer resources available to spend on crime prevention. Indeed, for many offenders, we know that rehabilitative programs through conditional sentences have a much better success rate at reducing recidivism than prison terms do; living in prison with hardened criminals is like going to crime school. So an excessive focus on punishment actually leads to higher repeat offender rates.
     Think about what that means. The policymaker who decides to implement a criminal justice system emphasizing punishment is creating a situation in which more crimes are committed than would be under an alternative system. There are people victimized by crime who would not have been so victimized, but for the decision of the policymaker. In other words, the policymaker has chosen a higher crime rate. An argument could be made that the conscious choice to have a higher crime rate makes the policymaker himself morally culpable for that rise in crime. And as one advocating for harsh punishment and against forgiveness, he'd really have little right to expect leniency himself.

     I don't think I'd want to go quite that far. The decision to implement a policy is not the same as the decision to commit an individual crime, and ought not to be assessed on the same moral scale. At the policy level, there will always be individual crimes or other unwanted consequences that follow from a particular policy that might not have followed from a different policy (which would have its own unique unwanted consequences). It's a question of balancing, deciding which policy produces the fewest and lease severe unwanted consequences.

     But in a democracy, it's also a question for us, the people, when we go to the polls. Do we want to be safer from crime, or are we so eager to see criminals punished that we're willing to bear a higher risk of being victimized by crime ourselves?
     I can't imagine how we could sensibly choose the latter. Criminals simply do not "pay for their crimes" by being punished. No amount of suffering inflicted upon a criminal can ever make whole the victim of his crimes, and so the victims of crimes are always worse off than they would have been had the crime never been committed. (Oddly, that's as it should be; we really wouldn't want a world in which people actively sought to be victimized by criminals.) The best thing policymakers can do for victims is ensure they never become victims in the first place.

Sauron et alia v. Baggins et alia

THE COURT:

    This remarkably complex case involves a staggering number of parties, all claiming ownership of the One Ring. It may be useful at this stage in the proceedings to briefly outline the positions of the various claimants as I understand them.

     SAURON claims ownership on the ground that he created the ring for his own use, and that it only left his possession through the torts of trespass, assault, battery and conversion allegedly committed against him by the late ISILDUR. Sauron argues that his title to the ring was never surrendered or extinguished, that he at no time abandoned his claim, and that in any event on public policy grounds neither the estate of Isildur nor any of those working in concert with it should be permitted to hold legal or equitable title to the ring, as such would have the effect of allowing tortfeasors to profit from their wrongdoing. Sauron also asks this court for a declaration that the ring is a living creature, possessing an animus revertendi and exhibiting a consistent tendency and desire to return to Sauron as its rightful owner. Further, as certain parties to this action have expressed the intention to destroy the ring if successful in their claims, Sauron submits that the ring should not go to them in any event.

     It is common ground that Sauron did in fact make the ring, and it is conceded by most parties that he did at least own the ring at that time. THE ELVES,  however, assert an IP claim against Sauron for his creation of the ring, which they allege involved unauthorized use of their trade secrets. The Elves seek an order that the ring be destroyed.

     THE HEIR OF ISILDUR, Aragorn, denies Sauron's allegations of assault and other torts, and claims the ring as proper spoils of war. He alleges that any torts committed took place in the context of a war in which Sauron was the clear aggressor, and that possession as well as legal and equitable title passed to Isildur. If that argument fails, Aragorn submits that regardless of who had legal title to the ring when Isildur took possession of it, that title would have been extinguished during the years the ring was lost following Isildur's death. Aragorn has admitted in oral argument that his intention is to give the ring to Frodo Baggins, who intends to destroy it.

     THE STEWARD OF GONDOR, Denethor, contests Aragorn's standing to represent Isildur's estate, and claims that he holds any right to the ring through Isildur. While Denethor has been recognized as the lawful steward of Isildur's estate, his case is hurt somewhat by the fact that not one but two of his agents are alleged to have repudiated his claim to the ring. Denethor disputes that his son Boromir made any repudiation before his death, and while he acknowledges that his son Faramir did permit Frodo to abscond with the ring, he argues that Faramir's actions were unauthorized and should not be binding upon him. Finally, Denethor asks this court to consider the balance of hardships and grant an equitable order that the ring be sent to Gondor to defend its people.

     SMEAGOL's claim to the ring is complicated. His original submission to this court asserted that he had received the ring as a birthday present from a Deagol, and then claimed he had received it as a donatio mortis causa, but was unwilling to provide supporting details. He has since retained as counsel Mr. Gollum, and his amended statement of claim is ingenious to say the least. If I understand it correctly, he seems to be saying that the ring was found by Deagol, at which point title would have vested in the crown of the River Folk by treasure trove. Smeagol claims title to the ring as the sole surviving member of the River Folk, and in the alternative, he asserts simple adverse possession. Smeagol further argues that regardless of the validity of his own claim to the ring, his possession should have been effective as against all but the rightful owner, and hence Mr. Baggins' taking of the ring from him was unlawful in any event.

     THE GREAT GOBLIN also claims title to the ring by right of treasure trove, in this instance by virtue of Mr. Bilbo Baggins having found the ring while in his territory. Smeagol disputes the Great Goblin's claim, asserting that the area in which the ring was found was in fact outside the de facto and de jure territory of the Goblin kingdom, notwithstanding that the site in question lies within the Misty Mountains which is otherwise recognized as Goblin territory. It appears that there is a triable issue here concerning the status of this real estate, but I am not at this time convinced that such a determination will be necessary to dispose of the present action.

     OAKENSHIELD AND COMPANY have submitted what is essentially a contractual claim, alleging that Bilbo Baggins was in their employ as a burglar at the time he found the ring, and was bound by the terms of a treasure sharing agreement. Oakenshield asserts that the ring was not subjected to the treasure distribution procedure prescribed by the contract, and asks that it be returned to the company for such distribution. Mr. Frodo Baggins argues on his uncle's behalf that Bilbo's possession of the ring was known to the company and implicitly ratified by them.

     THE SACKVILLE BAGGINSES assert a claim to the ring by two rather convoluted theories. The first is very similar to Smeagol's argument by treasure trove on behalf of the River Folk, except for the allegation that the Shire Folk are the successors to the River Folk. This argument seems to me to be subject to some very difficult evidentiary burdens, and I might have granted Frodo's motion to strike for lack of standing but for their second argument, for which they do have standing. The second theory is based upon a contract whereby Frodo allegedly transferred all of Bilbo's chattels as well as the house at Bag End to the Sackville-Bagginses, and that on a proper construction of this contract the ring would have been included with these chattels. In the alternative they seek an order declaring Bilbo incompetent, voiding his will and appointing SARUMAN THE WHITE his trustee. In their submissions, they allege that Gandalf the Grey breached a fiduciary duty to Bilbo by coercing him into giving the ring to Frodo. Counsel for Saruman, Mr. Grima, confirms that Saruman is willing to accept responsibility for Bilbo's affairs.

     FRODO BAGGINS claims to have received the ring as an inter vivos gift from Bilbo, who is his uncle. He asserts that the ring was abandoned property when Bilbo found it, as Smeagol could have had no legal or equitable claim to the ring and in any event was not in proper possession or control of it at the time. He specifically denies the application of the doctrine of treasure trove to the ring on the ground that the ring is not essentially treasure within the ambit of the law, deriving its value from its function of rendering its user invisible rather than from its composition, which is acknowledged to be gold. If the doctrine of treasure trove is held to apply with respect to Deagol's finding of the ring, Frodo contests the Sackville-Bagginses right to speak for the Shire Folk. In the alternative, Frodo asserts that he holds the ring in trust for the Council of Rivendell, having received it as a bailment for the express purpose of destroying it in the fires of Mount Doom. He suggests that, as the Council of Rivendell represented the interests of the Elves, the Heir of Isildur, and the Steward of Gondor. and arguably the Shire, and that any successful claims by any of these parties will ultimately result in his possession of the ring being lawful.

     Mr. Baggins' last argument is particularly insightful. There are simply too many parties to this action, and the burden on this court in sorting out all the claims is quite unreasonable. Many of the parties appear to have closely convergent interests, and some parties are submitting their own briefs when they could just as easily appear as witnesses for a party whose ultimate objective is substantially the same. I believe it would be in the interests of all parties if we could simplify the issues here, if for no other reason than that it would substantially reduce the costs. For this reason, I am ordering an adjournment to allow the parties to confer and identify which of them can consolidate their claims.

     Also, in light of the fact that certain parties intend to destroy the ring, which would clearly prejudice the interests of the other parties, I am ordering that pending the final outcome of this litigation, the ring will stay in the custody of this court.

Corporate Slavery

  A corporation is legally a person, able to exercise many (though not all) of the legal rights of a natural person. Corporations can sue and be sued, can own property and enter into contracts, and can even be charged with criminal offenses, although for obvious reasons they cannot actually be imprisoned, even when they are found guilty. 

  This is the basis of a common criticism of corporations and corporate law. Despite the legal fiction that corporations are persons, they lack the frailties of natural persons which help to inform our morality. Imprisonment may be an effective deterrent (or at least a meaningful punishment) to a natural person (including the directors of a corporation), but has no meaning for the corporation itself. Corporations have no need for food, air, water or shelter, they cannot fall in love, have children, or stub their toes. They don’t age, and they don’t feel pain, fear or remorse. Given all this, it should come as no surprise that corporations sometimes (often) act as soulless monsters without any regard for the interests of others beyond the minimum duty of care imposed by law. So, it is sometimes argued that corporations should not be treated at law as persons.

  I am sympathetic to the concern motivating this argument, but something about it remains unsatisfying. Legal rights are not contingent on the specific frailties of mortal human beings. Suppose a person were to reveal, for example, that she was in fact 3,000 years old, and just happened to have a rare mutation that exempted her from the normal process of aging. Would we say that such a person should forfeit any of her legal rights on that basis? Well, we might want to modify the Copyright Act, since a term of life + 50 years is a bit extreme when the author is effectively immortal, but apart from that sort of thing I expect most of us would agree that the basic rights associated with personhood should remain intact.

  But it occurs to me that the problem with corporations is not that we treat them too much like persons, but not enough. That is, there is one critical respect in which a corporation is treated in a fundamentally different manner from natural persons, at least since the abolition of chattel slavery: corporations are owned.

  Now, before I continue, let me first emphasize that I am not calling for the emancipation of the corporation. Far from it. They already enjoy more than enough power and practical freedom. What I want to do, rather, is point out how this simple fact, that corporate “persons” are also at law someone else’s property, makes it almost inevitable that corporations (publicly held ones, at least) will tend to exercise their legal personhood as soulless monsters.

  First, we must note that as an artificial person, a corporation itself has no mind, and can only act through agents. Thus a corporation must have directors to make decisions on its behalf. The corporation is utterly at the mercy of these directors, who are necessarily empowered to affect its interests by entering it into binding agreements, spending its money and so forth. Whenever someone is empowered over a person in this way, the law imposes a strict duty on the empowered one, called a fiduciary duty, to exercise those powers faithfully in the best interests of the other (who is called the beneficiary). Parents owe a fiduciary duty to their children, physicians owe a fiduciary duty to their patients, attorneys owe a fiduciary duty to their clients, and so forth.

  But what does it mean to act in someone’s best interests? That usually depends on context and who that someone is, but will almost always include some reference to the question: “What would the beneficiary choose for himself, if only he were competent to act on his own behalf?” 

  That question has no meaning for a corporation, however. Remember that a corporation is property; it belongs to someone. That means that its best interest are not understood in terms of what it would want for itself, but in terms of its own value as an asset. So a corporation’s directors are thus under a fiduciary duty to maximize the corporation’s bottom line, to increase its market value. However valuable things like clean air, job security and peace and happiness might be to natural persons (including those natural persons who happen to be corporate directors), they are not a part of the best interests of a corporation, and for a director to pursue such goals on behalf of a corporation at the expense of share price is actually unlawful, a breach of fiduciary duty to the poor helpless corporation at their mercy. Essentially, then, the directors of corporations are legally obliged to make their corporations act as soulless monsters.

  I am not sure what to suggest as a remedy. Perhaps we need to rethink the whole notion of equity in corporations, and redefine it more as a kind of debt. Or perhaps we can, by statute, add factors that directors must consider as being in the “best interests” of the corporations they control. (To some extent, that is possible already by way of a Unanimous Shareholders Agreement, but the default position for a corporation is to care only about its bottom line.) That may seem an artificial and forced solution, but on the other hand, corporations are themselves an artificial concept.

  I dunno. Maybe I’m hoping for some good ideas to show up in the comments thread...

Give Your Children a Voice in the Election

    A municipal election is upon us, and again, my son will be prevented from voting on the grounds that he is under 18 years of age.  Just about everywhere there are government elections, there is a minimum voting age. In most places it’s 18, though there are a few countries where it’s 21, and some where it’s as low as 16. The usual reason for imposing a minimum age is that younger people are deemed not to have the experience, wisdom or maturity necessary to cast a ballot responsibly. 

     Does it work? It isn’t hard to find someone who will complain about the foolishness of the majority of adult voters; almost anyone who voted for a losing candidate will do that. In any event, it is difficult to be sure that the quality of electoral results is better than it would be if we allowed minors to vote.

     In fact, there is something a little disturbing about any rule aimed at limiting the vote to only those we judge to be wise enough. Most modern democracies seem to have abandoned other competency tests for voting rights, and for good reason: it is very difficult to design a literacy test that does not include some form of political or cultural bias, and that would undermine the whole purpose of a free and fair election. 

     Whether or not they succeed in ensuring responsible choices at the ballot box, age limits do prevent young people from participating fully in the democratic process, which has its own drawbacks beyond simply depriving them of a voice. In countries where voting is not mandatory, voters in their twenties have historically poor turnout on election day, and the young are often seen as politically apathetic. But why would we expect anything else, when we’ve given them 18 or more years to get into the habit of not voting?

     In my household, we’ve adopted a simple solution to allow our son to participate, at least until he is old enough legally to vote himself. The three of us hold a miniature election around the kitchen table, and my wife and I agree to cast our ballots for whichever candidate wins a majority of our household votes. In principle, our house is like one of the states in the electoral college system for U.S. presidential elections; whoever wins a majority in the state gets all of the electoral college votes for that state.

     Since there are three of us in our household, and at least two of us are likely to agree on any given issue, we rarely have to worry about what to do in case of a tie. In practice, we discuss our choices well in advance of actually voting, and thus usually reach a consensus. Still, in Canada we have several major political parties, so the possibility of a three-way deadlock at our household election is quite real. It has never happened in our household, but if it does, one possible way to resolve it would be the single transferrable vote (STV).

     Most elections run on a simple “first-past-the-post” system, which means that whoever gets the most votes wins. If there are more than two candidates, you don’t need a majority; you only need more votes than any other one candidate. So in a three way race where candidate A gets 40% of the vote while B and C get 30% each, A wins even though 60% of the voters voted against him. 

     With the STV, voters do not simply choose the one candidate they prefer, but rather to choose as many as they like, and rank them in order of preference. If your favorite candidate doesn’t get enough votes overall to be electable, then your vote shifts to your second choice candidate, and so on. Ultimately the candidate left with the majority of the votes is the winner.

     Such a system is also handy for resolving the three-way tie that could result in our household. If I vote for A with my second choice as B, my wife votes for B with her second choice as C, and my son votes for C with his second choice as B, then B wins as the compromise we can all accept. Of course, there will always be the possibility of an unresolvable tie, but there is less chance of it with the STV system than with first-past-the-post. In fact, STV can even resolve many deadlocks in a two-voter household.

     It seems likely that age limits on voting will be with us for a long time. A baby born today will likely be old enough to vote under the current rules before any major reforms are implemented. Those of us who wish to involve our children in the democratic process need not wait until they are adults. By sharing our own votes with them, we can get them started towards becoming engaged, responsible citizens.