Justifiable Governance
How connection to reasoning drives a sense of legitimacy, or not.
This post on Best Of A Great Lot is a part of a series on the subject of designing a new form of governance. Each piece aims to stand alone, but fits together on the Table of Contents.
We know that the sense of satisfaction or dissatisfaction is one key component of the idea of legitimacy of a government. An unsatisfied citizenry starts to wonder whether some other government wouldn't be better. From the Declaration of Independence:
[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
But there are other drivers of legitimacy. Even a dissatisfied citizenry is willing to view a government they dislike as legitimate within certain bounds and circumstances. One key aspect that goes into that sense of legitimacy is something I'm terming justifiability.
Justifiability is the idea that we want the laws that bind us and the actions of government agents to be explainable and to follow from our understanding of the world - in other words, we want them to feel "reasonable". Even where we disagree, if we understand why the rules are the way they are and reasons make sense to us, we are more willing to accept them. Our trust in government feels fulfilled when we see why they pursue the goals they do with the methods they do, even when we're not fully satisfied with the outcome (though if we are satisfied, we're more likely to find the outcome justified).
Most of the time, the law against murder is immediately justifiable, as is the action of a police officer arresting someone who is accused of murder. This is why it's such a satisfying rejoinder to turn to when arguing with a truly ideological anarchist. But for many of our other rules, fully understanding why is a lot harder. In part this is because our system doesn't carefully and clearly lay out justifications for rules we hand down. Instead, most laws rely upon implicit justifications.
For the law against murder, writing the justifications down would likely be very repetitive: "Because murder takes away the right to life of the murdered, and in order to reduce the incidence of it, murder is banned" would sound rather strange to us. Many of our oldest laws don't need that level of clarification - their reasoning is obvious, and usually based on a single ironclad justification, but more modern rules are usually grounded in significantly more complexity. Why do we ban U turns, or require drivers making left turns to wait for oncoming traffic? It's not nearly as straightforward.
Multiple Implicit Justifications
Often, there are multiple overlapping justifications. At the moment the rule is passed, the justifications are enough to persuade the political or administrative process that the rule is necessary, and then over time those justifications may become stronger or weaker as our evidence changes and the world changes around us.
Consider, for example, bans on single use plastic grocery bags. The top google result for justifications to ban them includes 10 reasons:
Cause of environmental pollution
Made from fossil fuels
Problematic degradation
Killing wildlife
Harmful to human health
Not easy to recycle
High costs for cleanup
Come with external costs
Better alternatives are available
Bans in other countries
They had to stretch a bit to fill their listicle, but I think it illustrates the point. Condensing it to the ones that are relatively independent:
Environmental pollution
Kills wildlife
Harmful to human health
Made from fossil fuels
These are distinct justifications (although there's still some overlap in the three pollution claims - I'm allowing for a potential difference between killing and making sick). Since single use plastic bags have been a bit of a moral panic in recent years, let's imagine that not all of these are equally well founded, either today or at some point in the future.
For example, the claim that they are harmful to human health seems to be mostly based on the fact that they can break down into microplastics, and microplastics can transport harmful chemicals into the human body. Note: if there are additional justifications I'm not aware of, good, that helps my point. This specific pathway may or may not actually be as common as activists claim, and how common it is could change in the next few decades as other aspects of manufacturing and the environment change.
Many of our most important and controversial topics rely upon areas of science that have enormous complexity, and thus are subject to frequent revision and rediscovery. Whether we're talking about the interactions and outcomes of enormous numbers of people (economics and sociology) or enormous numbers of life forms more broadly (ecology and environmentalism) or enormous numbers of molecules (climate science, etc), these areas of science have so much combinatorial complexity that they are not nearly as ironclad as people want to believe. Calling them science can only take them so far in the realm of predictable determinism. It shouldn't surprise us to see the conclusions in these areas change over time, whether framed as debunking or new research results.
Consider that the ecological effects of plastic bags is at least somewhat dependent on manufacturing practices, both for the bags themselves and for other chemicals downstream. Imagine a company noticing they can get a marketing win out of taking the human health concern seriously and manufacturing single use polyethylene bags without harmful chemical residue.
Imagine the case where a law like this has been passed, and then over time the justifications for the law have weakened. Perhaps they were always wrong, or perhaps the world changed. A scientist or activist conclusively demonstrating that all of the justifications for a ban were wrong would plausibly earn them a citation or a few substack subscribers, but could easily be ignored by the political process. After all, most people wouldn't read it, and it's not bad news, so the news is unlikely to give it much focus. The justifications gone, the law can hang around for as long as the citizenry aren't too upset about it, ie a few generations.
Many citizens would continue to believe the old justifications for decades. Despite plenty of mounting evidence against plastic recycling, municipalities will likely continue wasting millions of dollars on the practice. This happens for multiple independent and reinforcing reasons.
One is that many voters are stubbornly ignorant, a common complaint among most activists. In part this is a useful defense mechanism against activists demanding immediate action on a new problem each week. Some portion of them must be ignorant too, as you can find activists claiming a factually opposite thing for nearly any position you can find activists for. They can't all be right, so stubbornness is often called for.
A second is simply that there are too many potential topics to be educated about, and becoming educated provides little value to most people. This is even discounting how much of citizen education is simply the propaganda of company marketing departments, government busybodies, and "news" organizations who know they sell better through fear than truth. Having learned the facts of plastic bag manufacturing, what will you do beyond call your representative and summarize a profession's worth of complexity into a one sentence request? And who benefits from you doing so?
Perhaps most importantly is that people grow attached to the policies they supported, because that was how they became popular in the first place. Activists and politicians know that to generate support for a policy, they must drive the underlying emotion so that the citizenry will become willing to care enough to drive the policy forward. Without strong emotion, many changes stall out in our system. How did you become aware of plastic bag manufacturing realities anyway? Likely from a piece of media you heard about from friends. Likely a piece of media designed to encourage you to pass it around. More nuanced perspectives don't travel nearly as well.
Ask a politically aware person about a hot policy proposal from their side - like a leftist about Medicare for All, but really, any hot policy proposal - and why they support it and they'll likely tell you sob stories of people who are harmed by our current system. I don’t mean to suggest new policies don’t help people, but most support for them isn’t based on cost-benefit analysis. Mostly, people support policies out of frustration. They are frustrated with the current system and want to Do Something. The way to drive support, therefore, is to raise visibility of problems with the current system! That way the offer of hope becomes attached to a pathos that they can feel.
The logic of these dynamics is clear: over time, bans and rules accumulate to protect us from our fears. Yet the justifications may have always been weak, or they may become weak with time. Defenders of a ban can play hopscotch from one justification to another when argued with, and after enough time has passed, they can start falling back on Chesterton's Fence to support any existing law - something might break if we removed it. It's much more difficult to subtract than to add.
Explicit Justification of Agencies
We do have something that resembles more explicit justification for rulemaking: the enabling laws for agencies. When agencies are handed an area of policymaking, Congress has to explicitly say what the bounds are that they're expecting the agency to regulate within. These at least somewhat resemble outcomes or goals. What does "clean air" mean in the Clean Air act? Congress wrote a scope for the agency, rather than just writing the rules they would enact. It says things like the EPA may regulate emissions which "may reasonably be anticipated to endanger public health or welfare." This is a justification for the rules that EPA proceeds to make! The court system is sometimes even willing to consider whether rulemaking by the EPA qualifies as within the scope of what the Clean Air Act allows - effectively, whether the rules the EPA are making are justified by the goals of the Clean Air Act.
The language for the Clean Air Act is remarkably broad. It seems entirely reasonable that "endangering public health or welfare" would be broad enough to cover the EPA regulating Carbon Dioxide for its contribution to the long term disaster of climate change. But it's also reasonable to argue that it wasn't the original intent of the law. The Supreme Court voted along partisan lines between those two perspectives and told the EPA to stop.
The reality is our court system isn't designed to train judges in the technical expertise to determine whether agency rulemaking is truly justifiable, or effective, within its context. Supreme Court justices decide their votes largely based on their legal philosophy of the subject - should the EPA get to regulate pollution more broadly (liberal side), or should the EPA be limited to the specific intentions of Congress when they authored the Clean Air Act (originalist/conservative side) or does this regulation fit within the legal language of the Clean Air Act (textualist/conservative side). None of these determinations is based on whether the EPA's rules are truly effective at their goals, since the justices don't have the expertise to do a great job of that determination. Whether you agree with the Supreme Court's decision in this or other instances, their process isn't designed to come to knowledgeable technical answers.
Competence vs Education
Implicit justifications affect the sense of legitimacy through a base of citizen education. When a citizen runs across a rule and is knowledgeable enough to understand why the rule is in place, the justifications happen within their mind and they accept the rule as legitimate. When they don't, they grumble and their trust in government is weakened. Consider the case of building permits. Building code is long and complex, with many specific requirements and exemptions. For those who don't know the history of city fires and the way that the rules arose in response to them, the rules - even the sensible ones - often seem like an arbitrary exercise of power.
The reasons both for the rules are often fairly opaque. Even contractors often don't understand or agree at the margins. Because the reasoning behind the rules isn't clearly spelled out, it's hard to tell apart the ridiculous-sounding rules that have a good reason, the ones that are just there for an excess of caution, the ones that are outdated, and the ones that are based in some kind of corruption. Here's a thread with the most ridiculous permits contractors have experienced.
after 30 yrs in const, i was shut down for not pulling a permit to install a screen door.
Maybe there's an actually reasonably reason why installing a screen door needed a permit, or maybe this is a permit rule that shouldn't be there. Good luck interrogating that question. You'll need even more luck getting it changed if you determine that it's bull.
To those who only look at government rules through a libertarian lens, building code rules feel even less justifiable, since the natural consequence of being bad at building accrues to the injured or killed owner who decides to do so. Shouldn't I be allowed to modify my house however I want? After all, a person's house is their castle and plenty of castles have fallen down. I'm only hurting myself. Of course this style of thinking ignores landlords and property management companies cutting corners, the harms to incompetent homeowners guests and neighbors, etc.
The permit process is often justified among experts by a broader goal of safety for the entire housing stock. This is the kind of implicit justification that many citizens never understand. Homes will be resold down the road, and unsafe conditions built now may last for a long time and go through many hands before causing disaster. A locale has a compelling interest in maintaining a safe housing stock to ensure that the people who grow up or move there are safely housed and don't overwhelm city services like firefighting, emergency medical services, etc.
The fact that these justifications are implicit doesn't just produce grumbling and frustration with government - it also raises the barrier to change. Rules made for good reasons based on previous building materials stick around long after the reasons are valid because it's much harder to remove a rule that might protect someone than it is to enact one.
The urge to ban things also comes from our innate desire to control others. If we see a behavior we don't like, we often reach for justifications to ban it.
Consider the law in Hawaii banning tourists from taking sand away from the beaches. Hawaii has so many tourists visiting that if even a small percentage of them took sand away, some of the more popular beaches would be denuded. That logic doesn't apply in the same way to lower traffic beaches around the country, but I've seen signs on low traffic beaches warning against taking sand or shells.
Or consider the stay-on-trail rules common in places that see tremendous numbers of visitors. These rules exist to protect the landscape from the stream of humanity. Yet many much less popular places have adopted these rules because they've seen them elsewhere, even though their trickle of humanity isn't sufficient to cause enough damage to be worth the rule.
Where the rules aren't adopted officially, self-righteous citizens often take it upon themselves to attempt to put them into place. I've been personally lambasted for wandering off trail at Badlands National Park, even though they have an open hiking policy and at low traffic trails elsewhere without signs one way or another. Those who enjoy nature have come to believe that this sort of rule must be universal.
Badlands National Park has an Open Hike Policy, meaning that you are allowed to hike off-trail.
Of course, Badlands policy is based on the fact that the wind and rain currently does an order of magnitude more damage each year than the human visitors best efforts. One can certainly imagine a future where this has to change. The challenge is that if this policy does change, it will be very difficult to determine if it was changed because the underlying facts have changed, or because some busybody decided that they needed to exert more control.
Typo: "me point" --> "my point"