The Fifth Axiom
You geometers know that what makes a plane a plane is Euclid's fifth axiom. The first four axioms describe elemental shapes that can work in more than one surface. But of those surfaces, only on a plane, through a point outside a line, there is one and only one line that can be drawn parallel to that line. Without that fifth axiom, you could be talking about who knows what kind of place. But with it, you're talking about something real, or at least something that maps to something real. With that axiom, you can build.
I'm an unabashed reductionist. I like to think that things follow from things. I know it gets dicey at the very beginning, but Euclid didn't ask why his fifth axiom was true, he just asserted it. In the non-material realm, what people build is called civilization. To build civilizations, we need a human geometry, and to be useful, the human geometry must have a fifth axiom – a single fact about humans that we must know to build a civilization. My vote goes to this: people have competing interests.
It would be nice to imagine how different the world would be if people could be assumed to be uninfluenced by self-interest in their dealings with others. But how could that be? Evolution favors the self-interested. We can define self-interest broadly enough to encompass the enlightened variety, in which we cooperate to prosper, and we can allow for altruism via Dawkins's selfish genes, but there are just too many situations in which narrowly defined self interest matters for us to have evolved without the ability to perceive and serve our own advantage, sometimes to the detriment of others.
The animal that is capable of self-interest recognizes that power is a good thing to have, because in power one can serve one's self interest. So it hardly surprises not only that people who attain power tend to serve themselves, but that the most self-consciously self-interested people actually scheme to get power, especially if power is unchecked. Consequently, the first sign of a successful civilization is that those with power are meaningfully prevented from using it to their own advantage, so that good people are not corrupted by high office, and corrupt people do not seek it.
This principle is obviously embodied in a polity's organic law. Much of The Federalist is devoted to diffusing power, to checks and balances, intended to keep high office from being too powerful or profitable. But the issue of self-interest, and especially corruptibility, is less obviously, but nevertheless always, present in public law, too, sometimes buried so deeply that the law doesn't seem to make sense. Not, that is, until one imagines implementing the law without the offending nod to corruptibility.
Take, for example, what some call “legal luck.” Two men drive drunk. One gets stopped by the police before doing any damage; the other kills a teenager. By what calculus does the former deserve to be treated any more leniently than the latter? Both indulged in precisely the same behavior. Both have the same measurable blood alcohol level. The only difference is that one did damage and one did not. And yet the law treats them differently. Why?
Legal luck is often discussed alongside “moral luck,” the phenomenon whereby the community judges the drunk driver who has an accident more harshly than the one who doesn't. It might seem that the punishment meted out to these two drivers is different because their moral status is different – that their legal luck is different for the same reason that their moral luck is different, indeed that their legal luck is a reflection of their moral luck. But I want to look through the other end of that telescope, adopting as my key principle the corruptibility of all involved.
Imagine a place where driving under the influence carried the same penalty as manslaughter. Whether one goes to jail for a long time on a first offense will turn on whether one gets stopped by the cops and on just what side of an arbitrary line a fallible machine says one's blood alcohol level falls. The damage that a policeman with an agenda could do in such a place is frightening. “Framing” is always an issue in law enforcement, but it is constrained to a large extent by a requirement of a corpus delicti – an actual victim whose very existence proves that a crime has been committed. With no visible victim, we have to take the policeman's word not only that the defendant did it, but also that it even occurred.
In discussing moral luck, some philosophers refer to the requirement of a bad result as a precondition to strong condemnation as an epistemic issue. The reason, they say, that we assess actors differently on the basis of result of their behaviors is that we have far greater confidence that their behavior was dangerous if it in fact resulted in damage. I'm with those philosophers, but there is a flip side to this coin. Ideally, we would either condemn a person for his behavior or we would excuse it, and the damage it actually caused would be irrelevant to that assessment. And the judgment we would pass for creating risk would likely be harsher than it currently is for creating risk without harm, but less harsh than it is for creating risk that ends in harm. So, let's imagine a world in which that rule applied. If people could be trusted to behave decently (the occasional creation of risk aside), this scheme would work out fine. But if we allow for human corruption, not only might people be wrongly accused of creating risk (an easier crime to prove than those requiring a corpus delicti), but people who intend harm could easily make their actions look like the (mildly punished) creation of risk that resulted in (irrelevant) damage. Indeed, it seems to me that this latter concern is reason enough for allowing legal luck to exist as the lesser of evils.
The fact that a bad result has occurred makes us more certain that the behavior involved was at least risky, but at the same time, it makes us more skeptical that the behavior was merely risky. We can't be sure, but as a prudent strategy for acting in response to conduct, those postures seem well-chosen. It makes sense, therefore, that our emotional equipment that internalizes this sort of strategy so that we don't have to rethink it every time the need arises, runs in the same way. Thus, we tend to react less harshly to risk without injury than to risk with injury. And this response makes sense if one understands moral judgment not as an intellectual exercise, but as a basis for decisions regarding responsive action.
Although moral luck and legal luck are often discussed in tandem, they are very different. Moral luck is about judgments; legal luck is about responsive action. For the two ideas to be analogous, moral luck would be considered in terms of how we should act toward individuals who have behaved badly. The difference is important to the moral luck question because much of the study of moral luck turns on things that people would usually ignore in deciding how to respond to behavior. Thomas Nagel, in an important analysis of the subject, suggested that luck plays a part in almost all actions susceptible to moral judgment. Who we are, how we are raised, where we find ourselves, are all to some extent beyond our control. Thus, the only difference between a Nazi Collaborator and a US citizen in 1938 might well be where the individual found himself. To someone trying to assess the “fairness” of judging the collaborator more harshly than the individual who would have been a collaborator if he were in a position to be one, such issues of “constitutive” or “circumstantial” luck may matter. But in deciding whether to shun the collaborator, his status relative to people not tested is irrelevant, as is his upbringing, socialization, genetic endowments, etc. The strategy we adopt to protect ourselves from relationships with bad people does not require us to be just; it requires us to be prudent. In other words, moral judgment for the purpose of deciding how to act is an exercise in self-interest! And it is prudent to treat an actual harm-doer more warily than we treat a merely alleged risk-causer.
Our legal system is full of prudential provisos. The corpus delicti is just one. The right of cross-examination – with a corollary ban on hearsay evidence - is another. But why do we insist that defendants be allowed to cross-examine their accusers? Is it just that accusers may misremember? Or is it that accusers might lie if they didn't have to be cross-examined, and might not even exist if they didn't have to be identified. Is it not because people are self-interested and, therefore, corruptible?
The point of this post is not some misanthropic rant. I don't mind that people are corruptible – it seems to me entirely necessary that they be so if we as a species are to survive. If we did not compete, the strongest would not survive, and if the strongest don't survive, the chances of the species surviving are meaningfully reduced. No, I'm not against corruption as a necessary frailty. I just think people lose sight of it when they think about how things might be – like thinking we would each contribute according to our abilities for payment in accordance with our needs. I expect I'll return to self-interest and its firstborn son, corruptibility, again. Their importance is, after all, axiomatic.