Patterned Lawlessness

Back in July Will Wilkinson made a point that I thought was interesting at the time, but that has stuck in my grey matter and is gradually working it’s way toward becoming a fundamental component of my worldview (“Note About Rational Scofflaws,” The Fly Bottle, 11 July 2008):

I wonder how many drivers exceed the speed limit basically whenever they judge that it won’t cause anybody any problems. I’d guess, approximately, all of them. Also, there are very clear laws about, say, using turn signals, or using turn signals when parallel parking (do you do this?), or not taking a right hand turn on red lights when it is marked, not double parking, even if you’re just going to be one minute while you fetch your latte. And so on. When’s the last time you jaywalked? Lunch? People are more or less rational and tend to respond to incentives, and therefore the roads are a zone of patterned lawlessness. We all know what infractions the cops care about — how much over the speed limit is too much over, etc. — and we tend to respond accordingly. We even tend to internalize and moralize the rules whose expected cost of violation is relatively high. It’s more efficient that way. And thus our huffing indignation is easily riled by those who face different incentives and so flout different rules than the ones we flout without reflection.

This morning on my ride to work I coasted through a stop sign in front of a police cruiser that was approaching from the road to my right. I gave a little embarrassed smile and a little wave. She made a little disapproving face and waved back. It’s anarchy I tell you. Anarchy! I got to work in four minutes.

I have always thought of anarchism as a proscriptivist political program. It’s never occurred to me to consider anarchism as a positivist description of what’s actually going on behind normal law-conforming behavior.

People have an imagination of the law as somehow an ultimately hard thing. We hear expressions like “the iron law of …” or we use the same word, “law,” in physics as we do in our social imaginings. By linking the law with morality and construing morality as partaking of the metaphysical, the associations flow back the other direction as well.

And reference to the law would serve as a good explanation in most instances. Why does everyone so assiduously follow the lines painted on the roads, or when they drive over them, do so in such a regular fashion? And thus we might explain the vast middle hump of the bell curve of driving behavior. But then someone swerves over the line into oncoming traffic. To account for all driving behavior — the outliers as well as the vast middle of the curve — another theory with more breadth is required.

I also like the way that this theory strips morality of its metaphysical pretensions, paints the metaphysics as mere rhetorical device, or sees the inclination to render our ordering prescripts as fundamental as merely a pragmatic shorthand, or as the ideological reification of particularly strong emotions. Really we just react in a pragmatic way to the incentives that we find around us. It should be noted that some of those incentives are natural and some institutional. This is perhaps part of the basis for distinction, a la Elliot Turiel, between prohibitions of morality and prohibitions of social convention.

Patterned lawlessness is also a description of affairs that comports with the existential account of law-conforming behavior. So entrenched is our notion of the law as somehow inviolable, or so cowed is our thinking by the high wall of consequence erected by the law that we are prone to see dictates of the law as things about which there simply is no other option but to do as we are told. Existentialism was born in part as a reaction to the horrors of amorality and unreason to which people were pushed at the behest of state bureaucracies in the Twentieth Century, namely the Somme, the Holocaust. Existentialism contains the admonition that at every moment we stand free to do otherwise, even where the law is concerned.

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