Chapter 16: Beyond Revolution-- Thinking about What to Do

Chapter Objectives

When you have finished reading this chapter you should be able to explain:

1. Several possible analogies between political change and the behavior of light.

2. How things can be impossible in two different senses, and how one kind of impossibility is related to the concept of political investment.

3. Why present compensation need not always be paid for past injustices, and why, observing a "statute" of historical limitations, we should let bygones be bygones.

4. Why is it not unthinkable to compensate people presently profiting from bad institutions for some of the losses they suffer when the bad institutions are abolished.

5. The reasons that peaceful reforms are usually more effective than violent revolutions in promoting genuine progress at the fastest possible rate.

6. Why radical simplification in our government should be a very high priority for reformers, and some of the kinds of simplification we might want to seek.

7. How modern technology might threaten civil liberties, and how it might be used to combat crime without unacceptable side effects.

8. Why greater efficiency in convicting lawbreakers would force us to reconsider the justifiability of the laws we are enforcing.

9. Why harsher laws do not always deter more crime, and why the ideal punishment would be both cruel and unusual.

10. How moral, effectiveness, and constitutional arguments are mixed gloriously together in discussions of capital punishment.

11. Why it may be rational for a government to enact laws that do not minimize our chances of being executed for a crime we did not in fact commit.

Key Terms

data bank
recidivist
impossibility (two senses)
simplification
institutional inertia
"statute" of historical limitations
power of eminent domain
unicameralism
progress through reaction

The illegitimate use of a state by economic interests for their own ends is based upon a preexisting illegitimate power of the state to enrich some persons at the expense of others. Eliminate that illegitimate power of giving differential economic benefits and you eliminate or drastically restrict the motive for wanting political influence. *

A NEW WAY TO THINK ABOUT CHANGE

It is easy to formulate political, economic, and social standards, hold the actual world up against them, and conclude that the world is a mess. In many respects, by almost anybody's standards, the world is a mess. Radicals and reactionaries, liberals and conservatives, differ only in the things they would like to change, not in their desire to change things. A far more difficult problem is to figure out what to do. History is full of horrible things done by people who had or claimed to have noble aspirations to improve or perfect the world, but who were frustrated because others got in the way and slowed things down. As we have seen in the previous chapter, even if we have correctly identified what ought to be (and we can never be too sure about this, as a practical matter) we do not automatically know from that what ought to be done. What ought to be done depends not only on our values, or sense of what ought to be, but also on our circumstances, alternatives and, in short, the probable consequences of our possible actions. For example, we have argued here that government has no business regulating the prices at which exchanges between private parties take place. However, this does not mean that if price controls already exist, we should abandon them abruptly. To do so might be about as prudent as blowing up a dam that we have decided ought not to have been built. The damage downstream would be collosal, unless the resulting lake were first gradually drained. Similarly, economic damage may be minimized by relaxing price controls gradually, even though that means tolerating a theoretically imperfect situation for some time in the future.

Politics of Change

Political dynamics, or the politics of change, is one of the trickiest and most important aspects of the subject, given human dissatisfaction with things the way they are. Idealists may become especially frustrated because of the slowness with which improvements seem to come even when they exert themselves to the utmost. Political change appears to be rather similar to the behavior of light: its direction is more easily modified than its speed. The direction of light can be changed easily enough with the aid of a mirror or a prism, whereas its speed in a vacuum is a constant (represented by physicists as c, as in the famous equation E = MC² and its apparent speed can be changed only by directing it through matter such as water or glass. Likewise, "politics is a slow boring of hard boards." [Footnote 1] Of course, not all political observers see it this way. Marxists tend to see political change as the opposite of light: the direction of history is inevitably towards communism and, thus, a constant which human effort cannot affect. The speed of change, however, can be modified by deliberate human efforts. Thus Marxists reconcile their assertions that communism is historically inevitable with their rabid activism: They are merely helping to hasten the revolution and ease the birth pangs of the new order which is going to arrive anyhow.

The Direction of Change

Since the Marxists appear to have reversed the actual relationship between the speed of political change and its direction, it is no wonder that they tend to be horribly frustrated people. It is also no wonder that some of the worst atrocities on record have been committed by Marxists.

A fact that extreme idealists often refuse to face is that all of our actions must be taken within the limits of current circumstances, whether we like them or not. The more unequivocally one rejects the current situation as a value, perhaps the harder it is to accept it as a fact that must be worked with. But around every A in our formula of rational action is an implicit letter C, and ignorance is not bliss! What we do not know and refuse to think about can hurt us. The actual consequences of our action depend on the way the world in which we acted is and not on how we think it is or wish it were. If we wish to bring about changes that constitute improvements, therefore, we must strive to see and accept the present state of affairs as a fact even as we are rejecting portions of it as a value.

The circumstances that we will be acting within tomorrow, however, are not so completely beyond our control. In part, they may be changed by the actions that we take today. Thus, there may be some place we would like to get to, but which we cannot get to from "here." But maybe we could get there from someplace else to which we can get from here. In the case of the shipwreck discussed in the last chapter, for example, if an inability to swim is the only reason it is imprudent for us to try to go to the other island, with its superior conditions, then perhaps we can teach ourself to swim and then make the crossing.

Impossibility. Impossibility exists in two different senses, as we can see from our discussions above. The term can refer to actions that are never possible, or to those which are not presently possible. It is important to try to be clear about which form of impossibility we are talking about. There is no use in tilting at windmills or breaking our heads against a brick wall. On the other hand

much historical experience . . . tells us that goals unattainable now will never be reached unless they are articulated while they are still unattainable. Footnote 2

Going to the moon was only presently impossible when the Kennedy Administration decided to do this in the early 1960s. By 1969, the impossibility had been turned into a realized possibility. A world government is impossible today in the same sense of the term. Whether this desirable part of the Metaconstitution will be achieved depends on how we all act in years to come. Having one's cake and eating it too is impossible in the other sense, just as is increasing government spending while reducing taxes collected and preserving a stable currency all at the same time. When political leaders promise us the "impossible," we need to ask ourselves which kind of impossibility they are promising before we decide how to respond. The person wishing to convert present impossibilities into tomorrow's actualities may be a statesman who deserves our support. The person who promises to deliver the intrinsically impossible is a demagogue who should be hounded from public life as unceremoniously as possible.

Politics has been called the art of the possible. This, we now see, includes making things possible that were not previously so. As Milton Eisenhower has put it, "[W]e can only pay for the past, but we can invest in the future." Footnote 3

How Can We Atone for Past Mistakes?

Metaphorically, of course, we can and do pay for the past. We must live with the consequences of yesterday's actions, even when these are most unpleasant. Bridges burned cannot be crossed until they have been laboriously rebuilt. Constructive creativity is much harder to come by than is the destructive variety. Any idiot with a box of dynamite or a rifle can blow up a bridge or assassinate a top political leader; repairing the damage may take years or even be impossible.

We pay for past actions by living with their results. But should we pay for the past in any fuller sense of the term? Is atonement a possible concept in politics, and if so is it desirable? In America, this issue has come up in connection with treatment of Indians and blacks. There can be no doubt that past treatment of these minorities was a national scandal of the first magnitude, particularly in a nation claiming Christian inspiration and declaring its independence with the phrase "All men are created equal." The question is not whether grave injustices were done in the past, but what ought to be done about it today.

Regarding some issues, at least, our present analysis provides a definite answer to the question. For example, the land "stolen from the Indians" need not be "given back" because any title to the land which might have been claimed by Indians is equally illegitimate as the claims of the Europeans. If, as Henry George maintains, no one has any right to give out permanent property rights in land, this is just as much an obstacle to Indian claims as it is to those of Europeans.

Furthermore, even if restitution were indicated, it is not possible to give it to the past victims of bad behavior. The Indians who were robbed are now all dead, beyond mundane compensation. If any compensation were to be paid, it would have to be to descendants of the people who were actually robbed. However, it is hard to be sure which, if any, of these descendants were actually harmed by the past injustices. In fact, how can anyone argue that he was harmed by injustices occurring before his very conception and birth? That each of us presently living is here at all depends on long and improbable chains of past events, and a change in any one of these, including injustices, would mean that we would never have been born.

We thus find that there is a kind of statute of historical limitations, analogous to the statute of limitations preventing prosecution of crimes after a certain number of years has passed. It is both right and prudent to let bygones be bygones.

Compensating Wrongdoers

Another sense in which we may be said to pay for the past is when compensation is paid to people who had profited from bad institutions which are being eliminated. Henry George bristled at this suggestion, and especially at the idea that it was mandatory to compensate, in connection with the land issue:

The consideration that seems to cause hesitation, even on the part of those who see clearly that land by right is common property, is the idea that having permitted land to be treated as private property for so long, we should in abolishing it be doing a wrong to those who have been suffered to base their calculations upon its permanence; that having permitted land to be held as rightful property, we should by the resumption of common rights be doing injustice to those who have purchased it with what was unquestionably their rightful property. Thus, it is held that if we abolish private property in land, justice requires that we should fully compensate those who now possess it, as the British Government, in abolishing the purchase and sale of military commissions, felt itself bound to compensate those who held commissions which they had purchased in the belief that they could sell them again, or as in abolishing slavery in the British West Indies, $100,000,000 was paid the slaveholders. Footnote 4

These cases, however, do not involve paying for the past, but trying to minimize the present costs of attaining a better future. It is, of course, very offensive to argue that slaveholders deserve to be paid for having done something that is immoral. But what they were doing was legal, and it might be possible to make a strong argument that they have a legal (as distinguished from moral) right to be compensated when they are deprived of their property. In the case of slavery, however, questions of a right to compensation are largely beside the point, for the real issue was its expediency. No doubt if the U.S. government had sought to eliminate slavery by seizing all slaves under the eminent domain power, it would have been very costly to provide "just compensation" as required by the Fifth Amendment. But the Civil War by means of which slavery was actually eliminated did not exactly come cheap. Its estimated cost in dollars alone, and to the North alone, was $6.5 billion. Three hundred sixty-four thousand people were killed, many more wounded, and millions of lives were disrupted. By the process of war, the four million slaves were liberated at an average cost of $1625 each. At the beginning of the Civil War, the average fair market value (or basis for "just compensation") of slaves was about $1600. Even forgetting about the 364,000 fatalities, the war was no bargain!

The possibility of emancipating the slaves via the eminent domain power is an excellent example of the "second best" problem that we discussed earlier. The eminent domain power has no place in an ideal government, for it imposes sanctions on people who have violated no general rule of action. Yet it might have offered the best escape from the dilemma posed by slavery. A country with slavery is not ideal, and when the society is not ideal it may be a step backwards to introduce particular elements of the ideal. The nonideal institution of eminent domain may offer the ideal way to get rid of the nonideal institution of slavery.

The advantages of a peaceful end to slavery are more apparent now than they might have been at the time. Nobody expected the Civil War, and nobody expected it would be so long, so bloody, and so expensive. At the time, most people would have compared the calculated costs of emancipation via eminent domain, not with the costs of the upcoming Civil War, but with the costs of doing nothing. Eminent domain would therefore have seemed intolerably expensive and even an inspired national leader would probably have found it impossible to "sell" it to the people.

Reform Versus Revolution

Substantive radicalism, we have suggested, is all very well. The world is not as it should be. We can and perhaps must, therefore, be very critical of existing societies and governments. Procedurally, however, the whole thrust of our analysis indicates that we need to be extremely cautious, even conservative, in our actions. What ought to be done is a separate question from what ought to be, and the logic of action dictates that we think about alternatives and probable consequences before we rush out to put the world right. Putting things right is obviously desirable. It is also very difficult and dangerous. No matter how bad things are, we can always make them worse by unthoughtful efforts to improve them, and we certainly do not want to do this.

The individual who is interested in helping to overcome the awful inertia of institutions, and doing so in a way that will lead to improvements rather than to compounding the human predicament, should strive to understand the concept of creativity within properly conceived limits. Perhaps most people today tend to exaggerate the tightness of limits to political creativity. They thus do nothing to improve the world, and do it with a clear conscience. But some people on the other extreme exaggerate the looseness of constraints on political creativity. These people are often troublesome because their admirable enthusiasm and degree of organization are sometimes coupled with a revolutionary disdain for prudence and for those limits that render it inherently impossible to make a large constructive impact on the world overnight.

A basic trouble with revolutions--abrupt and sweeping changes carried out by procedures or persons not authorized by the existing system of institutions--is that unanticipated consequences, many of which may be highly unpleasant, are more likely the more sweeping and abrupt an institutional change is. In revolutions, one must stake much on the untested validity of a social theory about relations between actions and consequences.

Reform. Reformers present an interesting contrast to revolutionaries. Rather than the wholesale alienation of the revolutionary, the reformer is characterized by retail alienation from the existing order. He is willing to work within the confines of existing institutions to change them for the better. He does not agree with Voltaire's revolutionary advice: "If you want good laws, burn those you have and make new ones." [Footnote 5] The reformer does not approve of certain aspects of his country's government, but he works for improvements by peaceful and lawful means, in the United States by legislation passed by existing legislatures, by amendments to the Constitution through processes laid down by that same Constitution.

In reforms, one can take one step at a time, "test the ice," back up when necessary. All hopes are not concentrated on an untested social theory because implementing the reforms constitutes a gradual test of the ideas involved. Modifications can be made in the theory, or in the approach to putting it into practice. Reforms, furthermore, are implemented by people and processes already firmly established in a country. These leaders are unlikely to feel the insecurity which usually afflicts successful revolutionaries, who are morbidly aware that rulers may be here today and gone tomorrow. The reformer need not feel that having to admit a mistake once in a while will endanger his stature or existence. Since the technique of the reformer requires him to work within institutions that he does not at all regard as perfect, it is more difficult for him than it is for the revolutionary to convince himself that all opponents are evil. To oppose absolute virtue (the role in which the revolutionary likes to cast himself) is obviously absolute iniquity. Somehow, therefore, there is always more bloodshed in revolutions than in reforms.

Views from the Past. Political philosophers have appreciated this fact for a long time, and have voiced their conclusions repeatedly. St. Thomas Aquinas, in his Summa Theologica, set down the basic rule for deciding when a revolution is justifiable: It is proper to overthrow a tyrant unless the state will be so disturbed in the process that the subjects would suffer more from the consequent uproar than they would from continuation of the tyrant's rule. Later writers tend to indicate that if this rule were followed there would be very few revolutions:

He who desires or attempts to reform the government of a state, and wishes to have it accepted and capable of maintaining itself to the satisfaction of everybody, must at least retain the semblance of the old forms; so that it may seem to the people that there has been no change in the institutions, even though in fact they are entirely different from the old ones. For the great majority of mankind are satisfied with appearances. . . . (Machiavelli) Footnote 6

[Ilt is . . . dangerous to remove a king, even though it is perfectly clear that he is a tyrant. For a people accustomed to royal rule, and kept in check by that alone, will despise and make a mockery of any lessor authority; and so, if it removes one king, it will find it necessary to replace him by another, and he will be a tyrant not by choice but by necessity. (Spinoza) Footnote 7

[Al revolution will be the very last resource of the thinking and the good. (Burke) Footnote 8

I propose to accomplish the same thing in a simpler, easier, and quieter way, than that of formally confiscating all the land and formally letting it out to the highest bidders. To do that would involve a needless shock to present customs and habits of thought--which is to be avoided. To do that would involve a needless extension of government machinery--which is to be avoided. It is an axiom of statesmanship . . . that great changes can best be brought about under old forms. . I do not propose either to purchase or to confiscate private property in land. . It is not necessary to confiscate land,; it is only necessary to confiscate rent. (George) Footnote 9

The contrast of the reformist with the revolutionary mentality is instructive. Marx and Engels conclude their Communist Manifesto in the following terms:

The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at a Communist revolution. The proletarians have nothing to lose but their chains. They have a world to win. Workingmen of all countries, unite! Footnote 10

But in the very same Manifesto, Marx and Engels implicitly admitted that the past history of the class struggle did not support their assertion that workers had nothing to lose but their chains: Historically, the class struggle was:

an uninterrupted, now hidden, now open fight, a fight that each time ended, either in a revolutionary reconstitution of society at large, or in the common ruin of the struggling classes. (Emphasis added.) Footnote 11

A Present-Day View. At the very least, there is an apparent paradox in pursuing an ideal society by actions which have no place in that ideal. In the case of the Metaconstitution the paradox is not just apparent. A basic premise of the Metaconstitution as expounded here is that sanctions are legitimate only when imposed on people who have violated general rules of action laid down in advance. Only governments can plausibly proclaim general rules of action, for no one else is in a position to enforce rules at all generally, and a rule which is not generally enforced is not general no matter how it is phrased. For private persons to try to achieve the Metaconstitution by revolutionary force and violence would therefore contradict a principle that is more fundamental than the Metaconstitution itself.

THE URGENCY OF SIMPLIFICATION

Let us now turn from broad philosophy to specifics. One reform strongly suggested by the present analysis is drastic simplification of American government. Simplification will force increased reliance on general rules of law, reducing existing pseudo-laws and the opportunities for corruption that they provide. Simplification will help to make government effectively accountable to the people, so that private citizens need not feel that events are out of control.

Confusion resulting from governmental complexity is, of course, not all bad. Good may in fact come of it. If the public is kept confused and off balance, this may partially cancel out inadequacies in public understanding of key issues and give leaders freedom to do the right thing even though it would be unpopular if widely understood. But while perverse public opinion may be neutralized by confusion, complexity also acts as an obstacle to improving the quality of that opinion. It is doubtful whether democracy can survive at all if confusion and complexity continue to increase. A reaction is long overdue.

Reactionism

Political analysts do not normally regard reaction as a good thing. To call someone reactionary is generally considered a sign of hostility. Barry Goldwater once bit the bullet and wrote a book entitled The Conscience of A Conservative to try to clean up the tarnished image of conservatives, but nobody has written The Conscience of a Reactionary. Indeed, so negative is this connotation that most people would be astonished to see it mentioned in the same breath with "conscience." But a reaction-- a return in some respect to the way things used to be--can be desirable if things used to be better. Progress can take place through reaction. Naturally, the reaction must be selective, not an uncritical restoration of a previous status quo, but a reestablishment of its good aspects.

A Simplification Party

There have been occasional efforts to simplify particular aspects of American government. The "short ballot" movement is a case in point. More recently some people have called for laws written in plain English that the average citizen can understand without consulting his lawyer, accountant, and psychiatrist! However no one has advocated simplification of government in general as a matter of basic and urgent principle. Perhaps we need a reform organization that would pursue such a goal; perhaps we even need a new political party with simplification as the basic plank of its platform.

Simplicity in Ideology. A Simplification Party could proclaim that excess complexity allows government to treat individuals arbitrarily under cover of pseudo-law. It could warn that meaningful electoral control of government is impossible when government is too complicated for voters to understand. People could be frankly advised that any politician whose actions objectively help to increase governmental complexity should be driven from office no matter how plausible his defense of the details of particular decisions. For complexity makes it psychologically impossible to verify the adequacy of particular explanations.

Simplicity in Taxes. The Federal tax structure, for example, would produce approximately the same impact on income distribution that it does now (none!) if it were a simple flat rate tax on all personal income. Sophisticated voters should give proposals for such simplification the benefit of any doubts, and should presume the contrary on proposals to increase tax complexity.

Simplicity in Law. A great deal of complexity could be eliminated if we ended the present inapplicability of regular laws to large numbers of the population. While exceptions in favor of the young, the insane (or mentally ill), etc., are always for high-sounding purposes of helping these people, strong cases can be made that they are positively harmful to the beneficiaries. See in particular John Holt's Escape From Childhood and Thomas Szasz's Law, Liberty, and Psychiatry. What is certain is that the multiple complexities introduced by the present tendency to emphasize status in our pseudo-law make that law, and those who make and administer it, even more insulated from electoral control. And they also violate the generality requirements of the rule of law.

Another step forward might be to insist that pseudo-laws that can be violated only by the cooperation of two or more people be enforced equally against all of the parties involved in the so- called crime. There can be no prostitution, for example, without both a willing prostitute and a willing customer. Without the customer's cooperation, the prostitute cannot violate the "law." [Footnote 12] To punish the prostitute but not the customer is therefore most inequitable, as well as making the law more complex by making one's liability for a mutually consented to transaction depend on which side of the transaction one was on. Similar reasoning applies to minimum wage "laws."

Limits. A very drastic objective of the Simplification Party might be to write a word limit, or a time limit, or a legislation limit, into the Constitution. No more than so many thousand words of total U.S. Code, Federal Register, etc., might be allowed.

One way to reduce the number of laws, and hence complexity, is popularly called decriminalization of victimless crimes. Just which crimes are truly victimless is subject to debate, but clearly harmless actions should not be outlawed. In fact, even harmful actions should be outlawed only when the costs of doing so are outweighed by the benefits, as Aquinas noted long ago.

Simplifying Money. Eliminating public and private confusion created by inflation should have a very high priority for the Simplification Party. We have already discussed some methods by which the federal budget, generally considered a major factor in creating inflation, could be automatically balanced. The most straightforward approach would be to make tax levels completely dependent on spending rather than the subject of an independent decision. Our draft of the proposed Metaconstitution suggests a secondary device, docking official salaries substantially whenever there is monetary instability.

Simplifying Form. Unicameralism should be given serious consideration by the new party. At the state level, many of the old arguments for bicameral legislatures lost their force when the U.S. Supreme Court decided that the Constitution requires that both houses must be apportioned solely on the basis of population, "one man, one vote." Thus it is no longer possible for the state senates to have one member from each county, no matter what its population. Meanwhile, the disadvantages of bicameralism--the ability to shift responsibility from chamber to chamber, the extra confusion, extra expense, duplication of effort in committees of the two houses, wheeling and dealing in conference committees--remain unabated. Except at the federal government level, where the Supreme Court has hesitated to nullify the specific constitutional provisions for equal representation of each state in the Senate, bicameral legislatures may no longer be advisable.

Simplification, in short, is a reform from which great benefits may be expected. It is supported by the philosophical principle known as Occam's Razor (do not multiply entities unnecessarily) and by the implications of the Principle of Rational Ignorance. It enhances the educational function of the laws by making them more comprehensible to the public. Simplification is no panacea; but, as Whitehead suggested, we should undoubtedly seek it even while distrusting it.

AN ELECTRONIC WAR ON CRIME

Another reform that should be given serious consideration is to put modern technology fully to work in fighting crime. When government is restricted from using the latest developments it inevitably labors under a considerable handicap.

Data Bank

One proposal that has often provoked argument has been to establish an integrated federal data bank, a computerized system in which everything the government knows about every individual would be combined and accessible to appropriate officials. Although fears of invasion of privacy have prevented establishment of a full-fledged data bank, specific programs have been created to detect significant lies told to the government by citizens. For example, public employment rolls have been checked against welfare recipient rolls, and a large number of public employees who had been fraudulently collecting welfare money have been uncovered. It is hard to argue that anybody has a right to steal from the taxpayers. No doubt when appropriate procedural safeguards have been worked out, there will be an integrated federal data bank. The problem is not with information available to the government about individuals, but what is done to those individuals by the government and who has access to the data.

But the data bank idea only deals with what to do with information already available to the government. It does not refer to the far more important, and perhaps more controversial, question of using technology to generate information about citizens. Mere mention of this possibility is apt to set civil libertarians to bleating "Big brother is watching you!" and summoning up horrendous images of George Orwell's counterutopia, 1984, with its TV cameras and microphones in every residence snooping on the occupants. This is not a case, however, where it has to be all or nothing. Perhaps a system can be arranged that generates essential information for the government without invading the legitimate privacy of the citizens.

One possible approach, for example, is suggested by a report from the Associated Press:

Although she has wandered about 600 miles from where scientists first encountered her, Polar Bear No. 1795 manages to stay in touch-by radio.
Researchers say she probably has a cub by now.
Old "1795"-as she is known to the U.S. Fish and Wildlife Service-was tranquilized near Barrow last June and a $5,000 radio transmitter was placed on her. . . .
Radio signals beam from the bear to a satellite and finally into the Goddard Space Center in Maryland. Researchers get reports on the bear's location from the space center every four days.

Now it is an interesting fact that a rather high proportion of crimes in the United States are committed by recidivists--by people who are doing it again. It is also a fact that putting people in prison for long periods of time is expensive and brutalizing, and that the public would not support capital punishment for most of these crimes. Taking these facts into consideration, and inspired by polar bear no. 1795, we might want to consider a program along the following lines:

A Model

All individuals convicted of serious crimes but not imprisoned or executed must wear a miniature radio transmitter day and night, for a specific number of years. The transmitter might be strapped inconspicuously but permanently to a leg. Circuitry in the transmitter would send a special alarm signal if the wearer tried to take the transmitter off or to tamper with it. Keeping the transmitter's rechargeable batteries charged up would be the wearer's responsibility, and if the batteries got too low the transmitter would also send out a special alarm, much as home fire detectors give advance warning that their batteries are about to expire.

The government could operate a network of receiving stations located throughout the country. Unique signals from each convict's transmitter would be picked up continuously by these receivers, his location calculated automatically by triangulation, and the results fed into a centralized memory system, where they would be stored for a certain number of years. If a crime is committed, officials would punch its time and place into the computer, and the computer would then print out the name of any convicts who were there then. Officials would then punch a button labeled "Where is he now?" and the computer would tell them the suspect's current whereabouts. Police could then make the arrest promptly. And the computer's evidence could be introduced at trial to prove his presence at the place and time of the new crime.

The electronic system would thus make detection and conviction of recidivists almost certain--thus constituting a powerful disincentive to recidivism. It would reduce the need to rely on prisons--"schools for crime." It would constitute a kind of "artificial conscience" or superego for people whose own sense of social responsibilities may be inadequate. It would be a partial substitute for the "ever present eyes of God" for the nonreligious. For convicts who go straight, perhaps an increasing number, the electronic system would be little problem and could even be highly beneficial: evidence from the computer that a given convict was not at the scene of a new crime would be an iron-clad alibi.

Nor would the invasion of privacy of the convicts be excessive. The transmitters would not send sounds or pictures, just a constant report of their wearers' whereabouts. And the electronic signals would only be evidence,- to do anything to the convict would still require court proceedings, with all of their protections.

Objections to invasions of privacy may often be facades for objections to the laws that are being enforced. And it may well be that some of these laws should be repealed or modified. However, to reduce the ability to enforce law in general in order to neutralize particular bad laws is perverse strategy. Perhaps the time has come when the rights of the law-abiding to walk in the streets at night, maybe even to go into public parks, without undue risk of having their throats cut, deserves consideration.

JUSTIFYING PUNISHMENT

The unprecedented efficiency that might be introduced into the law enforcement system by an electronic war on crime brings to the fore a fundamental question of political philosophy: How can one justify punishing people for violating laws?

The philosophical justification for imposing sanctions on people who violate laws is that operating under any other rule would make government impossible. Government is necessary to protect us from unchecked proliferation of privately-imposed sanctions, to allocate property rights, and provide services it is not efficient to provide privately. Practical justification for imposing punishment for particular actions depends on the costs and benefits of making those actions illegal. If the ratio of costs to benefits is not favorable there is no practical justification for outlawing an action. This decision is, obviously, one for the legislature to make--for classes of action--rather than one for the judge in particular cases. The judge's justification for imposing sanctions in a particular case is not that his action in itself will produce better consequences than would all of his other alternatives, but that it is required by the law. By virtue of his oath of office, to support the Constitution and laws of the United States, the judge assumes a contractual duty to impose sanctions in cases where the law requires it. Failure to do so is, then, breach of his contract of employment.

What punishment will in fact produce the best net results? Consider the following law: $100 fine for littering. We have all seen such signs by the highways. And we have also seen lots of litter by the roadside, especially if we walk or bicycle and have time to perceive our environment in some detail. Clearly, the $100 fine is not preventing all littering. It may not even be preventing any littering.

Everybody would probably agree that litter is not good; it is an eyesore; it costs money--extracted from the taxpayers--to clean it up. It may present a safety hazard to tires and bare feet. So what can we do-governmentally-to get people to cut down on littering? No doubt we should make every possible use of the pen here. If people can be trained to see the collective consequences of apparently harmless individual acts of littering, and to see that these are bad, perhaps they would make some effort to dispose of trash properly.

Presumably, though, other measures may still be necessary. It is hard to see how the power of the purse could be used to cut down on littering. A bounty might be paid to people for turning in automobile litter bags at government-operated stations. But much of the bounty would probably go to people who would not have littered anyway. Inducements may not be the most efficient way of dealing with litter.

Punishment and the Law

This leaves us with the power of the sword: law. Perhaps the first idea that comes to mind is: If $100 fines do not deter enough littering, let's make the fine $150. Or $500. Or $10,000! But increasing the severity of a given level of punishment may not work. The main reason that the $100 fine is not doing the job may be that it is not being enforced. Deterrence presumably depends on the probability or certainty of punishment as well as its magnitude. And increasing the threatened fine may only reduce the credibility of the threat: judges and juries and even policemen will hesitate to fine someone $10,000 for tossing a bottle out of a car. In fact, $100 may be more than they are willing to impose. It might well be, then, that a 90% chance of a $5 fine would deter far more littering than a 1% chance of a $1000 fine. Whether it is feasible in this case to increase the probability of detection and fine is doubtful. But clearly severity of punishment is only one variable, and not necessarily the most important one.

Deterrence effect of punishment may also depend on its type. Perhaps Americans have been confused by the constitutional language against "cruel and unusual punishments" (Eighth Amendment). Punishments are supposed to be unpleasant, by definition, and the more successful laws are at heading off crime the more unusual it will be to actually have to punish anybody. The ideal punishment is thus both cruel and unusual. Let us therefore forget about the constitutional prohibition--it can always be removed by amendment--and think about types of punishment on their merits.

If a law--a general rule of action laid down in advance-- provides any given punishment for a specified action, people who violate that law have no just complaints if a judge imposes it on them. People are always free to obey the law if that is what they prefer to do. The merits of a particular type of punishment from the legislative standpoint depend on the consequences of enacting or of not enacting it. Punishments that will minimize the total combined costs of crime and of law enforcement are optimal. A law that increases law enforcement expenditures $10 for every $1 of crime it prevents is not a good bargain. Nor is it sound policy to fail to pass a law that would save $2 for potential crime victims for every $1 of enforcement costs.

Prisons are expensive, degrading, and relatively ineffective methods of preventing crime. For some purposes, of course, they are much better than nothing. For those whom society is unwilling to execute but who cannot be allowed to remain free, prison is the solution. Prisons do not protect their inmates very well against each other, but this increases the value of prisons as deterrents of crime provided that the public has an honest understanding of just how awful conditions inside prisons are. But there can be little doubt that an ideal society would incarcerate people mainly to ensure appearance for trial, and that punishments should consist of some appropriate combination of verbal chastisement (the power of the pen, or "tonguelashing"), ostracism (the power of the purse, or boycotts), and fines, physical pain, or execution (the power of the sword, including flogging). Since, as we have noted, people are always free to obey the law, questions of humanitarianism should be reserved for the people who are being protected from lawbreakers, and for people who are accused of lawbreaking.

Physical Punishment

Our suggestion that convicted criminals be flogged is bound to provoke intense indignation in many readers. A European court recently ordered an end to this practice on the Isle of Mann, regarding it as nothing less than a scandal. But was the unusually low crime rate there also a scandal? [Footnote 17] In any event, flogging can presumably be justified if capital punishment can. So let us turn our attention to this extreme type of punishment.

Three separate issues generally get confused when capital punishment is considered: (1) the constitutional issue; (2) the deterrence issue; (3) the morality issue. We have already noted that the constitutionality issue is a red herring, an issue made possible only by unprincipled indifference to the actual wording of the Constitution. The very same Bill of Rights that confused the issue by forbidding cruel and unusual punishment made several specific references to capital punishment as an acceptable form of government action. Those words are still in the document, and no amount of appeal to evolving standards of social decency can remove them from the Constitution.

People who argue that the death penalty does not deter crime are probably trying to find a plausible prop for their opposition to it on moral grounds. Obviously execution does not deter all crime. But to argue that it deters none is so farfetched that any statistics purporting to prove this should be regarded as an exercise in deck-stacking. The fact that execution is a 100% cure for recidivism alone is grounds for rejecting any such conclusions.

The argument that capital punishment is immoral is based on the syllogism:

Murder is wrong.
Capital punishment is murder.
Therefore, capital punishment is wrong.
In murder, however, initiative lies with the killer, not with the victim. In capital punishment, the "victim" brings it on himself by violating a general rule of action laid down in advance. Society does not, like the murderer, single out particular individuals to kill; it merely sets down a rule of action and deduces its treatment of individuals from that rule based on their actions. This is not at all like murder.

Perhaps the strongest argument against capital punishment is that it is irreversible, and that some people may be convicted and executed for crimes they did not in fact commit. It is impossible to protect oneself against wrongful execution by obeying the law. And the possibility of wrongful conviction is, unfortunately, quite real. Even here, though, the argument against capital punishment is far from overwhelming. What we are really interested in, when we threaten murderers with execution, is minimizing the total danger that people will wrongfully be killed. The question thus becomes one of weighing the decrease in the chance of being murdered (a "deterrence" question) against the increased chance of being wrongfully executed (compared with no such chance at all if there were no capital punishment). For example, if there is no capital punishment law, the average chance of being murdered might be 1/10,000 per year. If the prospect of execution deters even one tenth of all murders, this chance can be reduced to .9/10,000 or 1/11,111. If capital punishment entails 1/1,000,000 chance of being wrongfully executed (undoubtedly on the very high side, as it would mean 220 wrongful executions per year), it would still be an excellent bargain, as the following table demonstrates:

                   If no capital     If capital
                     punishment      punishment            
Chance of wrongful
  execution           0              1/1,000,000

Chance of being 
  murdered          1/10,000         1/11,111
                   ______________________________
Total chance of 
being wrongfully 
killed              1/10,000         1/10,989
                
Total wrongful 
deaths per year 
in a population
of 220,000,000      22,000 people    20,020
people

It is the bottom line that counts.

SUMMARY

A messed-up world does not justify all measures intended to improve it. Political and social institutions are very difficult to change. They are even more difficult to improve. Changes can be bad. Even a horrible situation can always be worsened by inappropriate actions, no matter how noble the intentions of the actor. Peaceful reforms appear to offer better hopes for real and rapid progress than do violent revolutions. Since present atonement for past injustices is impossible, and we are all beneficiaries of those injustices, we should concentrate on doing the good within our capacity, letting bygones be bygones in the interests of a better future.

This chapter has proposed three kinds of reform: simplification, improving law-enforcement technology, and using more effective punishments. Simplification would make government more sensitive to community sentiments. Electronic surveillance of convicts could reduce our disastrous dependence on penitentiaries, increasing public security as well as that of convicts who go straight. As other methods of reducing the number of people incarcerated, corporal and capital punishment deserve more serious consideration than they have recently gotten. In a profound sense, the ideal punishment would be both cruel and (because it deters effectively) unusual. We must overcome the confusion created by the unfortunate wording of the Eighth Amendment. We must understand that responsibility for inflicting punishments lies with law-breakers, not with legislators, judges, or juries.

QUESTIONS FOR DISCUSSION

1. The chapter argues that it is possible to be substantively radical and yet procedurally conservative at the same time. And it maintains that this is a desirable combination. What kind of a person would be the opposite in both of these respects?

2. The chapter distinguishes two different types of impossibility. What are they, and can you figure out a third, still different, sense in which an action might be called impossible?

3. Distinguish between reform and revolution. Which approach was taken by the U.S. women's suffrage and liberation movements of the nineteenth and twentieth centuries? Describe how it might have been had the other approach been taken.

4. Wouldn't a limit on the number of words of law just force society to rely even more on judicial discretion and "common law" ("unwritten"), thus defeating the objectives of simplification? Why or why not?

5. You get into an argument with your roommate over the proposed flat rate income tax, designed to replace all other taxes in the country. Would you agree or disagree with each of his following arguments, and on what grounds?
a. The rich should pay more because they have more. Therefore the flat rate tax is unfair.
b. A progressive tax is necessary to cancel out other taxes which are regressive (sales, social security, etc.).
c. The proposal is being backed by the big-money boys, and is therefore bad.

6. News item:

A study by the Public Safety Information Service [in Canada] showed that in the first year under the [mandatory] seat belt law, 61,271 unbelted riders in Ontario got into accidents, and 355 died.
Of 269,772 belted riders who were involved in accidents, only 155 died. Those not wearing seat belts were I 1 times more likely to die in accidents. (Free Press, March 20, 1978).

a. Will your knowledge of this fact have any bearing on your future decision whether to wear a seat belt? Why or why not?
b. If a law against unbelted motorists in the U.S. were passed, would violation of it be a victimless crime? Why or why not?
c. What problems might there be in enforcing such a law? Could modern electronics be used to aid enforcement? How? If so, would this invade drivers' right to privacy?
d. On balance, do you think such a law should be passed? Why or why not?

7. What is the strongest possible argument you can find against the electronic war on crime as proposed in this chapter?

8. The chapter discusses the importance of the magnitude, probability, and type of punishment in deterring crime. Several states have enacted mandatory bottle deposit bills to try to reduce littering of highways. Does this suggest another dimension of deterrence strategy? What is it?

**************

Footnotes

* Robert Nozick, Anarchy, State, and Utopia, p. 272. 425

1. H. H. Gerth and C. Wright Mills, From Max Weber: Essays in Sociology. New York, Oxford U. Press, 1958, p. 128.

2. Leszek Kolakowski, in Anne Fremantle, Communism: Basic Writings, New York: Mentor, 1970, p. 389.

3. Milton Eisenhower, The Wine Is Bitter.- The United States and Latin America, Garden City, N.Y.: Doubleday, 1963, p. 148.

4. Henry George, Progress and Poverty, New York: Robert Schalkenbach Foundation, 1955, p. 359. 5. Hayek (1973), p. 25.

6. Niccolo Machiavelli, The Discourses, New York: Modern Library, 1940, p. 182.

7. A. G. Wemham (ed), The Political Works of Benedict de Spinoza, Oxford, England: Clarendon Press, 1958, p. 201.

8. Burke, p. 29.

9. George, pp. 404-405. By "rent" George refers to the value of the current use, as distinguished from ownership, of land.

10. Fremantle (1970), p. 52.

11. Ibid., p. 33.

12. There can be no law against prostitution, as distinguished from extramarital fornication. If fornication is not illegal, the illegality of prostitution derives from the client's action of paying money to the prostitute, which is itself perfectly legal. Only a pseudo-law can prohibit the exchange of two actions, neither of which is itself illegal. See Chapter 4.

13-16 [There are no footnotes 13-16 in hard-copy version]

17. For a strong fictional argument for flogging, see Robert A. Heinlein, Starship Troopers, New York: Berkeley Publishing Co., 1959.