Ian Welsh

The horizon is not so far as we can see, but as far as we can imagine

Category: Justice Page 1 of 5

The Game Theory of Giving Up Private Justice or Ending The State Monopoly On Violence

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On December 24, 2024

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In the state of nature, if someone does you wrong, it’s up to you and your mates to deal with it. This often means violence.

For most of English history there was no police force. Republican Rome had no police. There was law, but it was often privately enforced and often families and friends would take vengeance for wrongs. This led to rather a lot of violence and death, as well as feuds, where violence would continue long beyond the original offense.

Private justice; private vengeance thus comes with huge downsides, so in many societies we give up our right to use violence to right wrongs. We give that right to government in some form, and we reap the benefits of safety and that, in principle, stronger groups can’t bully those who are too weak to obtain their own justice.

The benefits are huge and everyone with sense recognizes that going back to private justice, to saying “they did me or mine wrong, I should beat or kill them” will mean a huge loss of public safety.

But whenever there’s a situation where changing from the status quo entails a huge cost there will be those who say “in that margin, I can benefit. All I have to do is take just a little less than the cost of change.”

How many people does private insurance and denials of care kill? It’s certainly, at least, in the tens of thousands.

What happens is simple enough. Some people, rich and powerful, get the right to harm others for money: the government doesn’t go after them for killing or hurting people. This is true of private equity buying companies, larding them up with debt then running them into bankruptcy so that many of their employees wind up impoverishing and homeless, for example. It was true of bankers causing a financial crisis. It is true of pharma jacking up prices or bosses stealing employees wages and water companies in the UK dumping sewage into the river and giving the money intended to clean sewage to their executives and investors.

None of this is punished by the law, yet people suffer.

But the cost of going back to private justice is HIGH and the transition cost, where the police and courts will charge those who enforce private justice with crimes, while not charging those who kill thousands with crimes, is awful.

So the bet by those who commit what has come to be called “social murder” is that they can get away with it: the cost of private justice is too high.

Still, there’s always the temptation to take a little more, then a little more and then a little more. To think, “well, I’m so rich I can have bodyguards and travel by helicopter and private jet and armored limo. The peons can’t get to me.”

But slowly (then all at once) ordinary people realize it’s not a good deal for them. Americans come to realize that Putin and Xi aren’t their real enemies, because their real enemies are those who are actually going to kill them or make them homeless, and those people are the rich and powerful in their own country.

Elon Musk, right now, is trying to cut Social Security and Medicare. If he succeeds a lot of people will wind up in pain, homeless or dead who wouldn’t have otherwise. He’s a direct threat to many, many people.

Putin isn’t going to make you homeless or kill you or deny you health care.

And when this switch flips, well, perhaps people decide that the high cost of going back to private justice is worth it and that when they gave up their right to private justice, they gave up their power. It was a good deal, as long as they could keep control of government and use government to control the wealthy and powerful, but once government control was lost, well, the power they gave up was used against them.

And this is, maybe, where we are. If more and more executives, CEOs and politicians wind up targets of extra-judicial justice, we’ll know it’s happened.

This isn’t, of course, an endorsement. It’s analysis. It’s in no one’s interest for the situation to become so awful that ending the state monopoly on violent justice makes cold hard rational sense for millions of people.

But that appears to be where we’re heading, if we aren’t there already.

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Did Mangione Break The Law of Nature When He Killed the Health Insurance CEO?

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On December 10, 2024

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So, Mangione assassinated Brian Thompson, the CEO of United Healthcare, the US health insurance company with the highest denial rate in the industry.

It’s pretty clear he did it, he was found with a manifesto which amounts to a confession.

“To the Feds, I’ll keep this short, because I do respect what you do for our country. To save you a lengthy investigation, I state plainly that I wasn’t working with anyone. This was fairly trivial: some elementary social engineering, basic CAD, a lot of patience. The spiral notebook, if present, has some straggling notes and To Do lists that illuminate the gist of it. My tech is pretty locked down because I work in engineering so probably not much info there. I do apologize for any strife of traumas but it had to be done. Frankly, these parasites simply had it coming. A reminder: the US has the most expensive healthcare system in the world, yet we rank roughly in life expectancy. United is the [indecipherable] largest company in the US by market cap, behind only Apple, Google, Walmart. It has grown and grown, but as our life expectancy? No the reality is, these [indecipherable] have simply gotten too powerful, and they continue to abuse our country for immense profit because the American public has allwed them to get away with it. Obviously the problem is more complex, but I do not have space, and frankly I do not pretend to be the most qualified person to lay out the full argument. But many have illuminated the corruption and greed (e.g.: Rosenthal, Moore), decades ago and the problems simply remain. It is not an issue of awareness at this point, but clearly power games at play. Evidently I am the first to face it with such brutal honesty.”

The problem for the prosecution is simple: most people think the assassination was justified. All it takes is one juror to hang on and refuse to convict.

Jury nullification is legal, but it’s not legal to tell jurors they have the right.

But jury nullification is part of the “deal”, the social contract. It’s one reason why people accused of a crime have the right to a jury trial. We all know that the law and justice aren’t the same thing. We gave up the right for private vengeance because it lead to feuds and violence, but in exchange for giving it up we expect the “justice” system to operate in a way which leads to a better society, not a worse one. We expect the law to protect us.

Mangione killed one person. Thompson is a mass murderer. Mangione is a criminal because it’s against the law to kill people who kill by spreadsheet, but it’s legal to kill by spreadsheet.

When the law doesn’t work; when it allows mass murder, there will be some people who take the law into their own hands. As nasty as it is, this is one the real “checks and balances”. If elites won’t work for the common good, if they loot and impoverish and kill too much the masses always have the ability, if not the legal right to fight back. America’s founders were pretty clear about this.

Hamilton:

“when the first principles of civil society are violated, and the rights of the whole people are invaded, the common forms of municipal law are not to be regarded. Men may betake themselves to the law of nature.”

Elites are supposed to work for the benefit of all. There must be a case that what they do benefits the majority in society. When it doesn’t there must be some force of recourse.

Mangione broke the law. He almost certainly killed Thompson.

But did he break the law of nature?

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Police Abolition Principles

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On July 13, 2023

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This piece is by Jonathan Korman and Reprinted With His Permission

 

With Twitter imploding, it is long past time to name something about my long thread there featuring a recurring refrain:

Fire every cop.

Raze every police station. Salt the earth where they stood.

Start over. No guns. No one who was a cop before.

We cannot reform institutions which do this. We can only replace them.

The legitimacy of liberal democracy is at stake.

The thread captures hundreds of examples of horrors perpetrated by police in the US. I refined my refrain over time.

Fire every cop.

People protest that there are good cops who should not be punished.

But I am not talking about punishment. I am talking about remedies. However many “good cops” there may be, sifting them out would be difficult … and I have cause to doubt it is worth doing …

Raze every police station. Salt the earth where they stood.

Policing in the US demonstrates profound institutional failure, baked into all of its systems. We must reject every part of that inheritance, both pragmatically and symbolically.

Start over.

What should we try to achieve? What institutions and practices suit our purposes?

I imagine that we need some rough equivalents to things we have in existing policing; I think something like homicide detectives are a good idea, for example. But for most of what we ask from policing — addressing “crime” — we need social welfare delivered by entirely different means. Police abolition asks what society we would need in order to make it possible to do without police.

We must avoid legacy assumptions. We must think and work from a clean slate.

No guns.

Guns in the hands of police create a host of harms. Their mere presence deforms our systems and processes for the worse. We must simply eliminate them from whatever new institutions we devise.

No one who was a cop before.

I take institutional knowledge seriously. I hesitate to sacrifice it, but dread even more carrying it over from a monstrous system. Even the best people are bent by their adaptations to the old system.

Moses could not enter the Promised Land.

We cannot reform institutions which do this. We can only replace them.

My original Twitter thread shared countless examples of horrifying policing. I shared them not to indict the examples but to indict the systems which produced them. We need a clean break.

The legitimacy of liberal democracy is at stake.

Hobbes calls for a state monopoly on use of force. The liberal democratic ethos — that is, not “liberal” as in not-conservative or not-leftist, but as in Locke and Mill and Jefferson and Berlin — legitimizes the state’s power with democratic accountability and a driving purpose of securing universal rights. If agents of the state directly contradict those libdem principles, as they do in the US, it indicts not just policing but the state itself and the state’s animating principles.

I desperately want to rescue the libdem ethos because I have no better alternative. Radicalism about police abolition is necessary to preserve the institutions and ideas we have which are worth saving.

The Necessary Legal Changes To Deal With Deep Fakes

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On July 6, 2023

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A deep fake is a picture or video of someone doing or saying something they didn’t. In the old days pictures and video were considered “proof”, it was easy to tell if they had been altered, as with the laughable removal of out-of-favour leaders from Soviet pictures.

With the advent of useful “AI’ making deepfakes has become easy, and it is destroying one of the ways we know the truth. In addition it is putting people into positions they never took, having them say things they did not say and so forth. The common general use is for pornography, but putting words into someone’s mouth is potentially just as bad.

The law will need to be changed to deal with this.

  1. Making a deep fake of someone without their legal authorization must be both a criminal and civil offense, with jail time, not just fines, since in fines don’t work if someone expects to make more money than the cost of the fine.
  2. Consent must be active. No contracts of adhesion, never in a EULA, always requiring an individual specific contract which is compensated.
  3. No long term contracts. Five years at most; nothing which is open-ended or forever.
  4. If required for employment, this cannot last longer than the employment without a separate contract signed after the person is no longer employed. Some exceptions may be put in place for actors and whatnot.
  5. All deep fakes must prominently say, in a way that cannot be missed (no fine print or credits) that they are deep fakes, probably a banner at the top or bottom of every part of the video where they appear, except in movies and tv shows, but even then they must start with a prominent announcement and end with one.
  6. Ideally, though unlikely in the current environment, a person should receive a payment every time the deep fake is shown, there should not just be a one time fee. This should be done similarly to the residuals or radio play laws of the late 20th century. There are some technological hurdles to this, but they are not insurmountable.
  7. This must apply to dead people as well. Either the estate’s approval must be given and a contract signed, or people must have been dead a long time, perhaps fifty years and the requirement for a prominent disclosure that what is being seen is a deep fake.
  8. Anyone who uses a deep fake must keep the disclosure that it is a fake.

We have been very bad about law keeping up with technology, and when we have not (as with the DMCA) we have mostly created very bad law. It would be nice, for once, to get on something in a timely and fair manner.

If you think there are any other ways the law should be formatted, or if you disagree, says so in comments, with your reasoning.

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Justice, Law and Norms

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On April 3, 2023

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Last week I wrote an article on the indictment of Trump in New York. I argued that charging trump had broken an elite norm: there is no question Trump broke the law, but ex-Presidents don’t get charged with crimes and senior politicians rarely do, though as a couple commenters pointed out, there’s already been some erosion of that norm.

It’s important to understand that a norm is a cultural rule. It’s not a law, usually, it’s something you just do or don’t do because your social group requires it or forbids it. For elites, a norm is that elites don’t get charged with most crimes, especially non-violent ones, unless that crime harms other elites in large numbers. Every senior executive at a bank or brokerage broke fraud laws and the Rico statute (they conspired) in the run up to the 2008 election, for example, but who was charged? Bernie Madoff. Why? Because Madoff targeted other elites.

Likewise senior politicians regularly get away with breaking election fundraising rules and various other white collar crimes (like bribery). They don’t charge each other, because almost all of them do it. What they do is against the law, but it isn’t against elite norms.

We all know what laws are, but justice is different from law. A law can be unjust. Everything the Nazis did was legal by German law, as a friend of mine loves to point out.

Another principle of justice is that laws are applied equally. The same crimes that elites commit without being charged for are laws that are usually enforced against non-elites. This is not justice. Likewise fines that are fixed rather than relative to income or wealth or a combination of both are unjust—they hurt people with less money more than those with more money.

Bringing this back to Trump, he is being charged for crimes that while illegal do not violate the elite norm of elite impunity for crimes that are normal among elites. If elites wanted to maintain their norms, he should instead have been charged with treason or sedition, for the Jan 6th attempted insurrection, because that violates an elite norm.

Justice, norms and laws are three different thing and understanding the difference matters.

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The Espionage Act Is Bad Law Even When It Is Used Against People I Despise Like Trump

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On August 15, 2022

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Back in June 2019, the New Yorker wrote an article lambasting the Espionage Act.

The George W. Bush Administration pursued several government insiders for leaking classified information, but it was the Obama Administration that normalized the use of the Espionage Act against journalists’ sources. Among its targets were Jeffrey Sterling, a former C.I.A. officer, who was sentenced to three and a half years for supplying the Times with classified information about U.S. efforts to disrupt Iran’s nuclear program; Donald Sachtleben, a former F.B.I. agent who was sentenced to three and a half years for providing the Associated Press with information about a foiled terrorist plot in Yemen; and Chelsea Manning, a former military-intelligence analyst who was sentenced to thirty-five years for providing Assange’s WikiLeaks with hundreds of thousands of pages of classified government documents…

…(about the Trump admin) Later that year, Sessions told Congress that the Justice Department was engaged in twenty-seven investigations into classified leaks — a dramatic escalation over previous years. In the two and a half years since Trump complained to Comey, the Justice Department has indicted three people under the Espionage Act for providing information of public concern to the press.

Now, the New Yorker is concentrating on people who were prosecuted for supplying information to the press, or in the case of Assange, for publishing information (acting as the press himself.) And one can easily say “This isn’t the same thing — Trump isn’t a whistleblower.”

And I agree. If Trump has taken information and given it to a foreign power, then it’s one of the few semi-legitimate uses of the Espionage Act to go after him.

But if it’s just sat in some boxes, well, the truth is that for senior people, like Clinton (yes, a junior person would have had their career destroyed and likely gone to prison for using their own private server the way she did) and General Petraeus (who avoided indictment under the act), the law is usually an empty letter.

One might then say, well, but these are nuclear secrets and much more serious.

But all of this caviling and caveats brings out the essential point: The Espionage Act is so widely written that it’s a prosecutor’s cudgel, and the choice of whether to use it or not is a political decision, not a matter of whether someone violated the letter of the law. For most of the 20th century, after the original proscriptions (used against communists and people who opposed the draft), it was rarely used, and the choice to use it was clearly a political choice.

It’s a bad law. It shouldn’t be on the books. If it is on the books, it should be applied evenly, and in all cases, for the simple reason that using it against people with power is how it would be repealed and replaced with something much less prone to abuse. If it had actually been used against Clinton, there would have been massive pressure to repeal it.

And that’s the good thing, here. If it’s used against Trump, well, perhaps the Republicans, next time they’re in a position to do so (which could be as early as 2024), will repeal it.

Or, instead, maybe they’ll go tit-for-tat and continue with its weaponization, going after Democrats and left-wingers.

That would be bad, but it would also have the potential for good. You get rules of war and politics when both or all sides have been monsters, and they finally realize that mutual monstrosity is bad.

As for Trump, I have little sympathy. He used the law badly, and for him to be hoist on it amuses. It’s a pity that Obama, who really weaponized it, is smart enough to have not laid himself open. But if I were Clinton, I’d be concerned after 2025.

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What Is Right for Those You Love Is Right for All

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On August 5, 2022

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Trial of Titus Manlius’s Son

The Roman Consul Titus Manlius Imperiosus Torquatus was at war with the Latins. He instructed that anyone who disobeyed orders would be executed. His own son, and some companions left their sentry posts to skirmish with some enemies, defeated them, and returned to his father with the spoils. Seeing that his son had left his post (leaving a sentry post is particularly bad), he had him executed for disobeying orders.

Now, if you think Manlius did the wrong thing, we disagree.

“If you would do it to your son, daughter, spouse, or parent, you should do it to anyone.”

This is a fundamental rule. If someone random does something, and you would punish or reward them, then if you don’t act the same to those you care about, you are unsuited to have any authority, private or public.

Everyone has a father and mother. If you’d kill someone else’s child, or imprison them, or otherwise hurt them, then you must do the same to your child in identical circumstances. The same is true of reward: If you’d reward your child, and someone else is under your authority, they must be rewarded the same.

This is true beyond immediate authority, though: If you believe that people should be killed if they murder, you must support that for those you care about. If three crimes, no matter how petty, means 20 years in prison, then if someone you care about commits three crimes, they, too, must serve those 20 years.

Anything you would not do to someone you love in terms of punishment or reward, you cannot do or support doing to anyone else. If Manlius would have executed anyone else for disobeying orders, he had to execute his son.

The application of this to larger issues, like those who vote for war not sending their children, and those who will never be affected by a law voting for it are left, for the moment, to readers to work through.

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Three Simple Policy Heuristics

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On August 31, 2021

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A number of people (and most of those who run our societies) don’t understand the policy default: “Be kind.”

There is a widespread belief that life is shit, “hard choices” have to be made, and those hard choices usually involve someone else suffering and dying.

Life may well be lousy, but most “hard choices” don’t have to be made, and those hard choices are one of the main reasons why life is lousy for so many people.

The most important thing to understand is this: Harm ripples, kindness ripples. People you hurt go on to hurt other people. People who are treated with kindness become better people, or more prosperous people, and go on to help others. Yes, there are exceptions (we’ll deal with those people), but they are exceptions.

First: Do no harm.

Again, people who are abused, go on to abuse others. Rapists were often raped before they raped others. People who have no money can’t buy other people’s goods. People who are crippled physically, mentally, emotionally, or socially cannot contribute fully to society and tend not to make those around them happier or more prosperous. Rather the reverse.

While it is necessary to imprison some people for committing crimes (though far fewer than most societies imprison), it is not necessary to make having been convicted an economic death sentence. People who can’t get living wage jobs (or any job at all) when they get out of prison gravitate back to crime.

We don’t want people raped in jails, because many become rapists themselves and virtually all are damaged by it. When they get out of jail, we have to deal with that damage. We don’t want them stuck in solitary confinement for long periods of time because brain scans show this inflicts traumatic brain damage, and, yeah, we wind up having to deal with those people when they get out.

If someone runs out of money, we don’t want them to lose their primary residence. Even if you are soulless, you shouldn’t want a society that creates homeless people; it takes far more money to support someone on the street than it does to pay for almost anyone’s mortgage or rent. We don’t want people who are sick to be denied health care because they become pools for disease. We’re treating these people eventually anyway (when they turn 65 or become so poor they qualify for Medicaid), which is far more expensive than dealing with their illnesses when they first present themselves.

We don’t want to destroy other countries (Iraq, Afghanistan, Syria, Libya, etc.) because their people become refugees with whom we must then contend; this produces scads of angry people, some of who may wind up killing us, and it further ruins their economies, rendering them unable to buy our goods (except our weapons).

Damage to others who live on the same planet as you can comes back to haunt you. Damage to others in your own society will come back to haunt you.

So, first, do no harm. Yes, there are exceptions, but they are radically rare. Almost every bit of harm we do to others through government policy is a bad idea. The only common class of exception is covered in rule three.

Second: Be kind.

As the harm you do others comes back to you (insofar as you are “society”), so the good you do comes back to you. I almost don’t know what to say about this, as it is so brutally obvious. Happy people are better to be around. Prosperous people are better to be around. Healthy people are better to be around.

Only when goods are legitimately scarce is there reason not to help make other people better off, and, in those cases, it is only applicable to the scarce goods, and only until you can make the goods no longer scarce. Short on food? Ration and plant more crops.

But in today’s society, all the significant shortages of the goods which matter most are artificial; we have more than enough food to feed everyone. The US has five empty homes for every homeless person. Europe has two empty homes for every homeless person. Clothing is cheap as hell. Access to the internet is vastly overpriced. Our main sink is just carbon: We need to spew less of that, and we can do that. Our second main limitation is the destruction we are imposing on biodiversity, but we could produce our food with far less impact on the environment if we wanted to, and, even in the short term, we’d be better off for it.

People need stuff: food, housing, safety, education. None of these things should be in shortage anywhere in the world, including safety. They are in shortage because we choose to act greedy, violent, and selfish when we do not need to.

Third: Remove the ability or reason for people to do harm.

Humanity is not a race of saints. It does not need to be. Most people are neither good nor bad, they are weak. They do what the social and physical environment disposes them to do, with the social environment being far more important in the modern era.

Still, some people are bad. The hard core is probably around five percent of the population. And many other people are damaged, because our society has damaged them. They take that damage out on others.

The most dangerous class of malefactors are incentivized to do evil. Think bankers, corporate CEOs, billionaires (almost all of whom do evil as routine). These people do evil because they profit greatly from it, BUT (and most of you will not believe this) what makes a profit in the modern world is overwhelmingly a social choice. The government chooses who can create money, what counts as profit, who is taxed how much, who is subsidized how much, what is property, how much it costs to ship by rail vs. road, etc., etc.

There are independent technological and environmental variables, but they are overwhelmed by social variables. Change the variables and you change the incentives.

The policy is simple: Take away incentives for people to do evil. Take away their ability to do evil (a.k.a., their excessive access to money.)

Those who continue to do evil, lock them up. Do it completely humanely, no rape, no violence, no solitary confinement. But make it so they can’t do evil. While they are in prison, try to rehabilitate them. Norway has half the recidivism rate of the US for a reason: Rehabilitation does work for some people.

When they get out, bring them back into society. Make sure they have housing, food, clothing, and so on. If they do evil again, lock them up again.

None of this is complicated, in principle. This is simple. This is straightforward. It is work, mind you, we must stay on top of incentives and ability, and not allow anyone to become so rich or so powerful that they are able to buy the rule-makers or be above the law.

None of this should be controversial, though it is. None of this is new, these strands of thought go back to Confucius, Ancient Greece, and beyond. They are only controversial because it is in the interest of many for these ideas to be painted as such. And many people, having done evil, develop a taste for it.

Running a society well is hard, in the details it is complicated, but in principle, it is simple. Do the right thing. Make it so that people do well by doing the right thing. Make it so people who do things that are harmful to others stop doing them.

When you want a good society to live in, inculcate these principles. Until then, know that you will only live in a good society briefly and by chance.

Originally Published September 3, 2015. Back to the top for a new generation of readers.

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