AN OVERLOOKED COST OF SOCIAL GOVERNANCE

Pretty much everyone prefers trials in the public square to jury trials. Libertarian Hannah Cox advocates every day that President Biden should pardon Edward Snowden. Hannah never advocates that a law should be changed to make what Snowden did legal. Rather, she wants to use Twitter to pressure politicians to decide who goes to prison, rather than it being decided by courts fairly applying law. Would we lose our ability to have law with Hannah as judge, prosecutor and defense attorney, if Twitter went down?

Rashad Richey recently said on Youtube that come election day, he would remember the Broward sheriff and prosecutor who let a cop Steven Davis use perjury to nullify the Fourth Amendment. Richey does not advocate that perjury be prosecuted in general, or an institution be created to do so, so that he can go do something better with his life. He advocates that perjury be punished when he and his followers say it should be. Richey wants who is punished and for what to be decided by the dynamics of his political influence. Rather than cops and judges being forced to follow the law, deciding who gets punished for what is now the full-time job of Dr. Richey and his thousands of followers. And with a bunch of white supremacists on the other side, advocating all day on social media that cops should ignore the law, to punish the same people Richey wants protected.

There are at least two reasons for this. The first, most obvious one, is people are tribal social creatures. They are hard-wired to recite gossip and religion, incite against perceived competitors, and execute people in witch trials. Deciding things socially is their natural impulse. They want to decide industrial production socially through communism, rather than through the private decisions of businessmen. When they go online and gossip about whether some accused criminal like Bryan Kohberger is guilty, it does not feel like work to them. Deciding things socially, is like bringing a keg to the office, drinking beer and arguing about football all day, and deluding yourself that you are doing work. Social governance works worse than juries and “the invisible hand”, but people enjoy doing it. So we pass a law and create courts, but then select politically where and how to use the law or ignore it, which means we have substituted political processes for legal processes.

The second reason social governance is socially popular, is because the civil rights movement was a social movement that actually had some useful purpose. A social process is necessary when there is no law that can be used, specifically to change the law so that courts can be used, and so that bakers can then go back to baking. When black people were slaves, an abolitionist could not say “enforce the law” and then go about his business as a baker or cobbler. He needed to use social influence to get the law changed. But now that the law is changed, it would be silly to go on TV or hold a protest, to complain about someone holding slaves. You would call the police. But calling the police and using courts, is not as fun as being part of a social movement. And nobody wants to mind his own business, they are compulsive to tell others how to live and argue about it.

Innocent people are generally convicted, because social processes have been substituted for legal ones. The simplest example is a drug user is arrested on flimsy suspicion of murder, and the newspapers then print that he is an evil murderer. Police produce a jailhouse witness to lie that the accused confessed to the murder, and everyone in town overlooks that the police used lies to nullify the jury, because lying in court obtains the outcome preferred in the public square. If the accused has any supporters, their first impulse is also to use their own social process, to go on TV and counter gossip with gossip and lies with lies, and try to win a trial in the public square. They also won’t appeal to the law, that the accused has a right to a jury trial rather than the jurors being tricked with liars, and has a right to due process not police overlooking perjury by witnesses.

Never mind that overlooking perjury so that court cases can be settled as a local political decision, and then made to look legal by putting lies in the record, creates undesirable outcomes. Perhaps an even greater cost, is deciding everything through social processes, causes more and more people to be consumed with politics. Cases tried in the public square, rather than in secret by a few witnesses who were actually there and a jury, demand huge energies from that same public. It demands protests, podcasts, and petitions to politicians. Whereas fair trials require nothing more than public oversight of whether perjury is prosecuted, and whether the law was followed. For this reason, the Innocence Project prefers raising money to lobby legislatures against jailhouse witnesses, and telling stories of “actual innocence” on Facebook, rather than suing to enforce the laws already passed 200 years ago, that give everyone the right to a fair trial, including people who have not been swept into the political process and whose names we will never know.

It has long been observed that after institutions for change achieve their goals, they continue inventing new problems to fundraise and stay in business. The same can be said of people who, 200 years after achieving individual freedom, want to socially participate in collectives that will never give them what they want, and rather force everyone to live under the tyranny of the loudest group’s preference. The larger a democratic process for deciding anything – the more people involved, from a larger geographic area – the less local individuals will like the result they are bound by. But rather than saying let’s stop settling everything the old-fashioned way, they instead spend more and more of their time shouting louder and louder, hoping for their voices to be heard in the crowd.

The overlooked cost of people’s preferred social method of governance, is not only that the results get worse and worse. The overlooked cost is that as the results get worse, the amount of their time and energy consumed by political activism – their instinctive reflex to run to the crowd and shout to reverse their misery – gets larger and larger.