Perfect Justice; or, Why Political Arguments Never Convince Anybody

Shit Aaron SaysPut a libertarian and non-libertarian in a room and you get an argument, always the same argument. It might be over whether people who got cancer from industrial emissions would be able to collect fifty years hence. Or whether houses would collapse in earthquakes without building codes. Or whether without animal cruelty laws the evil neighbors would buy up puppies and kittens and torture them without fear of reprisal. Only the details vary.

Thomas Sowell wrote a book on this subject, A Conflict of Visions, in which he claimed that the fundamental divide is between those who believe in the perfectibility of human nature and those who do not. In fact it is less momentous: it’s between those who believe in the perfectibility of the state and those who do not. Some people think that the state can mete out perfect justice, some don’t. Libertarianism fails, in the eyes of the first group, if any evil goes unpunished. Now no one believes that the state can mete out justice in every case. But a lot of people, indeed a substantial majority, believe that, for every case, a theoretical mechanism for redress or punishment ought to exist. They readily concede that in practice eggs must be broken to make omelets. Mistakes are made. But if the mechanism exists, conscience is assuaged, and that is enough.

Good law sometimes produces unjust outcomes; a famous maxim expresses this, conversely, as “hard cases make bad law.” In Waube v. Warrington, a classic torts case from 1935, a woman watched a negligent driver strike and kill her daughter. The woman died a month later, allegedly of shock, and her husband sued. Maybe it was shock, maybe it wasn’t, but the Wisconsin Supreme Court never reached the question. It dismissed the suit on the grounds that damages for mental distress require physical contact, and there was none in this case. If the woman really did die of shock, then the outcome was unjust. Yet the law was sound, based on a bright-line, predictable, common-sense standard. Like any such standard, it does not fit every case. Too bad. Law is collective, justice individual. You can swallow this or you can’t.

Buildings collapse sometimes in earthquakes and kill a lot of people. This happens more often in poor countries than rich ones because taking precautions against a rare catastrophe is a luxury, and rich people can afford more luxuries than poor people. It will continue to happen more often in poor countries, no matter how stringent their building codes, because builders will circumvent regulations that they cannot afford. If the codes are rigidly enforced then fewer houses will be built, and people who formerly lived in shoddy houses will do without instead. You can swallow this or you can’t.

The trouble with animal cruelty laws is that animals are property, and such laws infringe property rights. You can tack on riders like “needless” all you like, but infringement is infringement, and when the only question is how much, the laws become a way to harass people in the animal business. (So far the animal rightists have mostly trained their fire on unpopular targets like foie-gras producers and circus trainers; scientists, assuredly, are next.) Of course without the laws Cruella de Vil can sew herself a nice coat out of Dalmatian puppy hides and there isn’t a damn thing the cops can do about it. You can swallow this or you can’t.

Team Perfect and Team Good Enough can argue to eternity and never get anywhere. And apparently they shall.

—Aaron Haspel

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