Policy and Norms
This graph is amazing. When I first say it, it though “I have to write an article about that” without even knowing what I was going to say. It highlights succinctly the difference between policy and popular belief. Laws can be out of sync with popular opinion quite dramatically, and can either preceed or follow changes in beliefs on what is moral.
When most people think about rights, I think they think about legal restrictions. In some ways, norms are just as important. The question of gay marriage is less important for the overall issue of the quality of life of gay people than the acceptance of the majority of people that being gay is not morally wrong. People can impose disapprobation and other social punishments on others that are worse than many legal rights.
In Hayek’s writings, there’s a distinction between laws and legislation. Legislation is the letter of the laws which are passed. Laws include what is enforced and what norms support the law. You could think of law as legislation + norms. In a harmonious society, they are very similar. Law without norms is unstable. If something people don’t think is wrong is made illegal, it undermines the government’s legitimacy. People view the enforcement of those rules as wasteful and cruel.
Perhaps the clearest example of norms not in alignment of laws is the drug war. While a majority of Americans have tried pot, and a substantial minority use it regularly, it is still illegal. The past three presidents have admitted to using illegal drugs, and yet, they never served prison sentences because of it. Clearly, marijuana use is socially acceptable, but if the law turn its attention to someone using it, they can be punished quite severely. The political classes benefit from both the drug war and from its hypocracy. As Hilary Clinton once said, “There is just too much money in it” to legalize. Cops make a tremendous amount of money seizing money and property using the drug war as its main justification. It seems like it requires around 60%+ of the population favoring something strongly to get a legislative response. Anything between 40 – 60% and/or the general population not caring too much will result in the political class enacting what is in its own best interests.
Torture and Terrorism
Which brings us to torture. There is a significant group of people who think that merely by revealing the existence of torture, you somehow reduce it or combat it. That whole concept doesn’t work if the people doing the torture and those supporting them aren’t shamed by their action, and if no one is willing to actually stop them. I saw the picture below on a friend of a friend’s Facebook page:
The sheer hypocrisy and moral cowardice of that sentiment makes my skin crawl. So, a dozen guys from Yemen, all of whom are dead now, killed 3,000 or so Americans on 9/11/2001. It was a horrendous tragedy. But everyone guilty of it has been dead for years. And would the soldier in the picture appreciate you using him as a prop to justify torture? The military personnel I have met have upheld the highest standards of American ideals. They care about the fate of those in the countries they have conquered and are trying to build them a better life.
But the attitude behind that picture is not as uncommon as anti-torture advocates would like to believe:
When you have military superiority, you can afford to be brutal and hypocritical. As Brennus once said “Woe to the Vanquished“, which is one of my favorite quotes from all of history. So succinctly does it encapsulate just how much it doesn’t matter what is right or just when one side has all the power and the other side has none. America has killed about 100 people for every one of our soldiers or civilians killed. The president could chose to make that factor a thousand. If tomorrow, Obama decided to cleanse the Earth of all Middle Eastern Muslims, it could be done in a day.
When confronted by the spectacle, many neo-con politicians say “Ok, what’s the big deal?”. People expect Cheney to apologize? In his mind, he did nothing wrong. The people who voted for him think he did nothing wrong. If you want the torture to stop, and if you want the torturers to be held accountable for their crimes, you must first convince the median voters, by a fairly wide margin, that torture is morally wrong. Torture is too politically useful for any politician to give it up for anything other than being removed from office if they don’t.