Posted by: theoptimisticconservative | October 29, 2013

Liberty 101: Law as SMOD

One of the most remarkable things about Obamacare has been the theme, lurking with a blithe, disarming shrug, that we have to wait to see “what’s in it” and how it all “plays out.”

It’s not just Nancy Pelosi who talks about it that way.  Basically, it’s everybody who ventures to discuss it analytically.  Each pundit ends up making the point that we’ll just have to see what happens and how it all plays out.

It’s as if Obamacare is not a law, written by men and fully manipulable by them, but a meteor headed for the earth.  We can try to analyze it from a distance, based on partial knowledge, a sort of sick, marveling wonder, and a set of tentative assumptions.  But in the SMOD analogy, it’s still a force of nature: an exotic, unharnessed phenomenon, frustrating us with mystical indifference to our plight in a universe of pulsars and rune stones.

In reality, of course, Obamacare is an artifact of man and his politics: a lengthy exercise in English prose, set down with intent by human beings, enacted by the “Yes” votes of 277 Democrats and two independents in the United States Congress in A.D. 2010, and signed by U.S. President Barack Obama.  Its intent can be known in advance, along with its trajectory.  It can be modified.  It can be controlled, handled, rewritten, averted, done away with.  We don’t need to launch Bruce Willis into space with a giant drill to see if we can’t put a nuke-down on it.  The reason is a really simple one, even kind of embarrassingly so:  that’s not how law works.

A sweet meteor of death is one of several things that law, very importantly, is not.  Another thing law is not is a magic wand.  You can’t just wave the wand of law and change the human condition (or the physical condition of earth or the solar system, for that matter).  You can’t produce good judgment or goodwill by making laws mandating them, any more than you can make carbon dioxide content decline in the atmosphere, or guarantee driving safety in every situation that will ever happen on this earth, by that method.

Our only hope?

Our only hope?

 

Law has three basic modes: punishment, deterrence, and enforced transfer.  Law is very much like a binary system, as irreducible as a 1 and a 0.  It works effectively, and is respected and enforceable, when its blunt, simplistic limitations and inherent nature are respected.  There are things law can’t do.  It can punish people for doing or not doing things.  It can take money from some people to pay others to do things.  It cannot create value; it can only respect value.  And it cannot transform people into beings who “want to” do things.

Contrast law, for example, with having children.  Having children makes most people want to alter their lifestyles.  It makes them want to spend their time in new ways and spend money on different things, as compared to what they wanted to do before they had children.  Having children makes people literally prefer forms of sacrifice over forms of self-indulgence.  It makes them see things as rewarding that they once considered pointless or repulsive.

Other things in life – volunteering, exceptionally rewarding professional callings or religious beliefs – can have similar effects on what people want.  But law can’t.

Nor is it properly meant to.  Law has an essential place in human life: it sets boundaries, and hopes thereby to regularize human transactions.  It is inherently incapable of inspiring or enabling us to transcend our limitations, and certainly incapable of conferring insight or wisdom on our calculations about satisfaction or happiness.  That is not law’s function.

Nor can it guarantee that our transactions will be regularized.  It can’t even guarantee that breaches of its boundaries will be punished.  It can only guarantee that the intent exists to punish them, to the extent possible with mechanisms manned by flawed humans.

As a thought exercise on this topic today, I propose to consider the surprise the public sometimes gets from jury verdicts.  Two obvious ones come to mind: the verdict in the O.J. Simpson murder trial, and the verdict in the George Zimmerman murder trial.

These examples are powerful because they demonstrate how law and government actually work.  We can be as certain as we’ve ever been that we’re right about a topic, and that something needs to be done, or a situation needs to be corrected, or behavior needs to be punished.  But law can only work through its inherent methods.  It can’t magically translate our “knowledge” or “certainty” into the outcomes we desire.

We all agree murder is terrible and shouldn’t happen to anyone.  Our law respects that as an expression of the value we place on human life.  There is no doubt at all that Nicole Simpson and Ronald Goldman were murdered.  I have always been as convinced as anyone that O.J. was guilty.  But looking at the presentation of the state’s case through an objective lens, I can understand how the jury found reasonable doubt.  The law was followed, and what I was certain of wasn’t endorsed or vindicated.

I’ve been less certain about the Zimmerman case, including whether murder was done, as the law defines it.  Without denying George Zimmerman’s right to self-defense, I have wondered if it wasn’t possible for him to avoid the awful way the situation with Trayvon Martin turned out.

That said, the prosecutor didn’t bring a convincing case for murder two, and the jury followed the law in acquitting Zimmerman on that charge.  There are an awful lot of people who are firmly convinced one way or the other about the Zimmerman case.  The law, as followed, vindicated one view and not another.

This is how law works.  It doesn’t – it cannot – exert positive control over human life, translating our visions for “how things ought to be” into specific outcomes.  Law cannot “make O.J. (or someone) not kill Nicole” any more than it can “make George Zimmerman exercise judgment differently in his encounter with Trayvon.”  There is no such vehicle in the universe: nothing that can have this effect.

Law can’t guarantee that perpetrators will be identified or punished.  It can’t guarantee that anyone will be punished, even when it is self-evident that a crime was committed.  Law can’t guarantee that everyone in the community will always agree on facts or conclusions.

Trying to use law for purposes it’s not suited to always produces evil consequences.  History is an infallible guide on this matter.  The misuse of law, in the attempt to exert positive control over outcomes, or find someone to punish for the sake of punishment, or make “facts” and “conclusions” fit preferred narratives, gets the state into the business of bullying and brutalizing the people.

The only way to keep law in its proper place is to develop the good habits of liberty, one of which is understanding law’s function and limitations.

Law isn’t a sweet meteor of death; it can and should be controlled and held accountable.  It performs respectably within its proper limits; outside of them, it needs to be corralled and sent back to obedience school.  It has no occult powers to transform life, lift us up, align us with a cosmic ideal, or “call things that be not as though they are.”  Law is neither the hand of God nor a tentacle of cosmic order.  It is just a set of manmade provisions – typically decided on by a laughably microscopic minority of whichever humans happen to be walking around on the planet at the moment.

A people with the good habits of liberty would know in advance that Obamacare is not SMOD; it’s a law with a bunch of 1 or 0 elements to it, each of which will have a concrete and predictable effect on the citizens’ lives, and some of which are more practically enforceable than others.  Such a people would know that law cannot make anything “affordable,” because that’s an outcome, and law can’t control outcomes.  “Everyone having insurance” is also an outcome – and one only artificially and inconsistently connected with getting “health care.”  The limitations of law apply.

The people with the habits of liberty is rightfully eligible to be the author and judge of its laws.  For such a people, law is neither a magic potion nor the culminating cataclysm of a fairy tale.  It is simply a useful tool, like a circular saw: something to be treated responsibly, maintained conscientiously, used only for what it’s suited for, and kept tidily where it belongs, unplugged when it is not in use.

J.E. Dyer’s articles have appeared at Hot Air, Commentary’s “contentions,Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard online. She also writes for the new blog Liberty Unyielding.

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Responses

  1. I’ll have to read this one again. It seems to concentrate on aspects of positive (i.e., man-made) law — tax laws, contracts, etc. — while ignoring the demands natural law places on all of us. I don’t know how well the arguments posed here apply to all types of lawful governance. Surely the law “thou shalt not kill” *should* have stayed O.J.’s hand.

    Then too, the analogy of binary clarity — ones and zeros — doesn’t hold up. Even circuits have their uncertain, tri-state moments: http://en.wikipedia.org/wiki/Three-state_logic, in much the same way that lawyers depend on ambiguity in the written word. For example, here’s one I’m gonna find handy:

    http://www.powerlineblog.com/archives/2013/10/delay-the-mandate-what-mandate.php

  2. Sorry, OptiCon, but Barry had the fix in on ObamaCare. His minions (he didn’t know about it, of course, he was “unaware,” because it hadn’t yet appeared in Sports Illustrated) wrote regulations specifically designed to deprive 14 million working, insurance-buying Americans of totally appropriate “catastrophic” coverage policies.

    And why would Barry do that? Well, aside from his palpable hatred of such Americans, they were necessary for his Rube-Goldberg plan to work. You see, those 14 million will buy insurance on his Exchanges, and so fund the program for the uninsurable and/or grasshopper types who previously chose not to buy insurance — that’s how he’s going to get the 7 million he needs to make his sick system work. He knew that the unemployed Slacker generation (made even less productive by his attack on the economy) could not be counted on to buy insurance, when they barely have enough money to buy their sacred “music” and go to their mindless concerts.

    His cynicism, his pernicousness is beyond belief. If he gets away with this, we truly are a Nation of Fools. And if the Republicans can’t find a way to get overwhelming majorities in both house of Congress, we need a new conservative party.

  3. if one considers law as religion, one gets confused.

  4. Yes, we need a new Conservative party. Obama’s ACA was created with the sole purpose of destroying the free market economy of the United States. It was implemented under the guise of providing affordable healthcare to the masses, but as we are seeing, THAT isn’t working out because it wasn’t meant to. People were suckered, BADLY, by this guy proving how unintelligent a lot of Americans are when it comes to politics. Ideally, there should be voting reform as well. There is SO much to do when this guy finally leaves office…whenever that may be, and assuming people aren’t stupid enough to elect Hillary after all this.

  5. tm1 — Indeed, I am speaking of positive law. I appreciate you making that point; I thought of it as implicit, but it doesn’t hurt to clarify it.

    With respect to 1s, 0s, and the Obamacare mandate, what I would point out is that much of Obamacare isn’t framed in the terms of classic positive law. We should expect certain things of classic positive law, and Obamacare doesn’t give us those things. It is a misuse of law on a number of counts. It raises the question whether “law” like Obamacare should rightfully have the same compulsion on our loyalties that consistent, unambiguous 1 and 0 law should have.

    (Any law, no matter how honestly and unambiguously written, can encounter odd cases in which its clarity or applicability is tested. Classic positive law, however, has an essential quality of being clear, consistent, and applicable, as written, in 99.99% of cases. In types of human transactions where conditions make this hard or impossible, positive law is not a proper tool or solution. We can’t expect to have either a good effect or even our intended effect, trying to make positive law about everything. For many perceived tasks, law is not suitable. We have to get our minds back around that essential point.)

    There is so much more to say about all this, but a single blog post can only be so long. Your point about natural law is of course a good one, but we can argue it as well: is it law that makes us good, or our hearts and consciences that make good law? The Christian would say it’s the latter. Paul said: “Do we make void the Law through faith? God forbid; yea, we establish the Law.” He meant that through personal transformation, we live out the Law, showing it forth, exemplifying it, as opposed to living “under” it in a cycle of bumper-like boundaries, atonement, and/or punishment. This was a special emphasis of Protestantism, and a concept very familiar to the Framers of the US Constitution, informing their idea of the place of civil law and central government in human life.)

    In any case, the political left has sneaked in a lot of vague, aspirational, open-ended measures under the heading of “law,” which in a constitutional republic commands a unique respect from the people. Law is being gravely misused today, our respect for law being exploited against us, and Americans must begin thinking again about what law owes to us. We properly require things of positive law. Law has limits on its capabilities, and on its suitability for a addressing human problems. As fuster suggests (although I doubt he meant to support my thesis), law is NOT religion. It’s not the sovereign answer to everything.

  6. Obama and Obamacare will gut the Democratic Party for a while.
    The best spin so far: NPR of course. The ACA law does not force insurance
    companies to drop policies…………….
    …….wait for it………. in 2013 or 2014 .
    It happens Jan 2015 right after the mid terms.
    NPR also reports Comedy Central left leaning shows are offensive when the make fun of Obamacare.


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