Law as Incentive

The law of any representative government (republic, democracy, constitutional monarchy) exists to perform only a few simple and essential functions. In America, law exists to protect life, liberty, and the ability to pursue happiness (partially through the acquisition of property) as proclaimed initially with The Declaration of Independence and defined by The Constitution. The penal reformation of the late eighteenth century defined the essence and maxim of punishment while considered in context of a representative government. [1] While previously justified as retribution from a dictator [2], the penal reformation defined legislation as a style of Social Contract. The participants of any society are obligated to abide by laws so that society can provide those things which justify its existence. Consider society as an unavoidable state, something that exists any time two or more people interact. Codification of the Social Contract conceptually referenced by law becomes necessary, particularly with larger societies, to explain, justify, and ensure compliance with those guidelines necessary to prevent or resolve conflicts between citizens to ensure the protection of Inalienable Rights.

The danger of government, and one all current First World countries succumb to, is using law as an Incentive Program for desired (not necessary) behavior. Incentive Programs, to speak broadly, fail to function as anticipated as they develop what could be referred to as a ‘game.’ An Incentive is an arbitrary [3] rule lacking intrinsic value which is developed in order to produce specific behaviors. They often fail as those subject to the ‘game’ find ways in which to bypass the ‘rules.’ As thoroughly described by some economists, [4] those subject to arbitrary laws meant to encourage particular behaviors (such as behavior – reward systems) find ways to exploit the conditions for the reward in ways not supportive of the desired behavior or in repetition to gain multiple rewards for emulating (not truly prescribing to) desired behavior. Social Engineering (the use of laws to reinforce desired behaviors not necessary for society to exist) is the essential function of an Incentive Program and numerous laws in every society (such as vice law) perform this function. These laws are not justified in reformed penal theory as they do not perform the essential functions of society (for they are arbitrary.) They are the remains of previous, normative dictations meant to restrict liberty in a society in order to gain uniformity.

The existence of arbitrary law to gain conceptual benefits such as uniformity suggests the function of the government is seen as something beyond the social entity which protects Inalienable Rights and resolves conflict involving the violation of those rights; arbitrary laws extend beyond the justification the Social Contract provides. At best, a government that does more than ensure Liberty is a voluntary social club to some, at worst a parental figure that enforces arbitrary rules, ultimately with violence, to others. While many people may see that condition as desirable; the Social Contract is not justified through necessity as a club charter instead but only as an essential outline of Liberty through the protection of inalienable rights, nothing more. Nationalism [5], as excessive patriotism, is a symptom of this mentality. One can only be nationalistic if a country expresses traits others do not and this can only be the case if countries, when compared, do not legislate in the way truly justified by the Social Contract. Government as a social club, or parent, requires authority and that is gained through the relinquishment, or confiscation, of personal autonomy and power.

The government of dominion (one that legislates more than necessary and thus exercises authority) often justifies Incentive Programs as developing desired traits or conditions for the citizens it governs. While that may even be the case, the use of any Social Engineering law is at the cost of Liberty and it must be recognized that (any time Liberty is restricted) there are individuals in society whom confront an unnecessary law and are forced, through violence, to relinquish their Liberty. At best, those unnecessary laws may be for the safety of those violating the law but often they are for the comfort of others. The justification for unnecessary law, and even Incentive Programs which are more regulatory, assumes that the governmental body is more capable than the individual of determining the best course of action when inalienable rights and conflict is not involved. A further assumption, one rarely (if ever) referenced, every thing which is ‘wrong’ should be illegal.

To be wrong is not to be illegal, nor should it be. Wrong [6] in neither technical nor specific when used as a descriptor yet it is the justification the populace of a society receives for many enacted laws. For example, while there is an argument to be made for underground distribution of drugs as harmful, a free person has power over their action without government interference (should that action not conflict with a person’s rights.) To legislate a person’s action for their safety assumes that the citizen is incapable of evaluating their own actions with similar or better capability than the government. Furthermore, legislation to enforce safe choices by and for that same individual assumes safe is always the best choice. These are the underlying assumptions of Incentive Programs in the sense it is being used and, as a path to Social Engineering, these assumptions give room for even representative societies to perform the atrocities conceived in dictatorships. The essential trait of Liberty, and the penal reformation born what we now know it to be, is equality and a respect for humanity; to allow a government to assume it is more capable of its individual citizens (or that some are more capable than others in majority rule) is to undermine Liberty fundamentally by cutting at the conceptual foundation of equality.

[1] Foucault, Michel. “Discipline and Punish: The Birth of the Prison.” New York: Vintage Books, 1995. Print.

[2] Dictator in Law as Incentive not intended with negative connotation but only as one who dictates as opposed to represents; need not be in the form of a monarchy.

[3] “Arbitrary.” Dictionary.com. The Random House Dictionary. Web. 19 Dec. 2011.

[4] Freakonomics. Dir. Heidi Ewing et al. Chad Troutwine Films et al, 2010. Film.

[5] “Nationalism.” Dictionary.com. The Random House Dictionary. Web. 19 Dec. 2011.

[6] “Wrong.” Dictionary.com The Random House Dictionary. Web. 19 Dec. 2011.