Discover more from Overcoming Bias
Teaching Law & Econ this semester reminds me of the puzzling ways law and culture work to prevent law from applying to “personal” arenas. Yes, many reasons are offered to explain why law is or should be so limited, but taken as a whole the pattern suggests a more primal reluctance to let law and related formal institutions apply to “personal” areas. For example, consider these rough legal trends (most trends have exceptions):
Law enforces matching promises, but not a single lone promise.
Blackmail law prevents monetary penalties on illicit secrets.
Lawsuits compensate mainly for money, not pain & desire, losses.
Torts compensate for non-contracted harms, but not benefits.
Pollution laws weaker for households than firms.
Discrimination laws only apply to employers, not employees.
Discrimination laws apply only to jobs, not romance.
Limited enforcement of the terms of wills over long timescales.
Norms against explicit contracts in personal relations.
Norms against “snitching” on crimes.
Dislike gambling lawsuits to let law apply to small cases.
More?
Did we inherit intuitions that different social mechanisms should apply at different social scales? For example, foragers had five social scales:
Family – typically a man, woman, and kids
Band – ten to forty folks who travel and sleep together
Tribe – friendly nearby bands that meet & hear of often
World – perhaps hostile strangers know little about
Foragers had different rules and mechanisms for these different scales. For example, dominance was more acceptable within families than between the families of a band. Bands had to come to consensus on more topics than did tribes. One did not need to be fair to the world.
Farming introduced the village or town, akin to the tribe, the clan, an extended family that may include folks far away, nations as collections of tribe, and sometimes empires as collections of nations. Industry brought yet more units, such as cities, counties, states, etc. So which forager social units do we see as most similar to our various modern units, and which ancient norms and methods do still think should apply to them?
Limits To Law
Blackmail law seeks to nullify any incentive for a person B to keep person A's illicit secret just between themselves. As a consequence, it (hopefully) promotes monetary penalties on illicit behaviors which would otherwise remain secret. So that one in particular I would strike from the list.
Imagine I go sing in a crowded square, along with a compatriot to serve everyone who hears me with notice that I’ve committed a beneficial tort. You’d end up with a tremendous waste of resources on a totally frivolous case. Also, creating recovery for unintentional benefits would often force people to avoid receiving benefits, which is not a desirable harm.
It also wrests control from the subjects of the beneficial tort. What's happening here is that we have a positive externality and the tort creates compensation for the externality. What happens if I'm the recipient of a positive externality with value beyond my ability to pay? For example, suppose aliens come to Earth and make everyone healthy, young, and immortal without asking. Then they demand suitable payment. How much is that worth (actually Robin might have that somewhere in his writings)? Can I afford to pay for the value I just received? By not having benefit torts, we prevent this sort of abuse from happening.
I guess gifts are another example of this. Gifts don't carry an expectation of repayment.
Moving on, a number of these others probably happen due to the presence of human deception. I can fake emotional or mental harm. Intangibles are easy to fake. It's much harder to fake physical harm. I don't pretend to understand tort law, but I do think there are mechanisms for assigning damages from intangible harm, maybe if the jury decides that a "reasonable person" would suffer intangible harm under the circumstances or the victim can show physical manifestations of their intangible harm (medically demonstrated inability to sleep at night or testimony from an expert witness that saw self-harming behavior consistent with the claim of intangible harm).
Small groups are generally less regulated than large groups because they can't muster the expertise or resources to comply. I doubt 1 in 100 households could actually deal with OSHA regulations on child labor, for example. Businesses also have the profit motive to consider. There are both greater resources for compliance and greater incentive to engage in behavior which the regulation is meant to curb.
Enforcement of wills over long timeframes is an interesting situation. I think that's more due to the fact that the main party interested in furthering the conditions of the will is dead and cannot independently contest any abuse or exploitation of the terms of the will.
Imagine, if you will, that the US decided to dissolve itself and put some of the assets towards a large scale purpose (a will for a whole country). Now imagine that it is 250 years later and every single person who was alive at the time, and all of their children, are dead. Who will advocate the will be carried through as intended? How do we preserve the purpose of the will in such circumstances?
My view is that this isn't a matter of social organization, but rather how long a contract survives the death of its originator (which can be a person or a country). Currently, it's only as long as the executors choose to follow the terms of the contract and society chooses to enforce the terms. In a century, we might be able to create AI-based executors who can carry wills through to the heat death of the universe. That's a rather scary thought, isn't it?