In 2011, law prof Leo Katz published an interesting book, Why The Law is Perverse. Katz first lists many ways that the law is perverse, especially rulings that reject win-win (i.e., “Pareto improvement”) changes, wherein some gain and none lose. Then Katz attributes that perversity to Arrow’s voting impossibility theorem, which says that no rule for combining sincere votes from voters with transitive preferences will result in transitive group choices, given a few assumptions including “independence of irrelevant alternatives” (IIA). Katz says this it isn’t so much that we vote to pick laws, but that we typically “vote” on each legal choice by combining multiple relevant considerations re that choice. Thus legal choices often produce choice cycles, which we break by making arbitrary choices, which is why the law is and must remain perverse. And so we often arbitrarily choose to reject win-wins.
I think a number of your law examples miss relevant considerations.
For instance, re: corporal punishment and volume discount on crimes there is the consideration of protecting the community by keeping people locked up and the fact that criminals are often behaving irrationality about future consequences.
If you want to both minimize the utility loss as a result of keeping someone imprisoned but know that extra time on a sentence beyond 5-10 years doesn't do much to decrease deterrence then volume discount on crimes is a plausible solution. Especially if criminals aren't behaving fully rationally.
Regarding some of your other examples (and I think the corporal punishment one to an extent), while I agree many of these are stupid, they are a result of the voter wanting to feel good about themselves. Yes, I think ppl should be able to sell sex, some organs etc, but voters don't want to believe they live in a society where that's really a rational choice or wish to enforce their moral views so it's hard to see a fix within a democratic system.
"the simple method of a weighted average over individual utility functions does a fine job of combining individual preferences into a consistent group preference."
Sure - the problem is, everyone's true utility function is unknown to anyone but them, and there's no way to extract it for voting purposes. You can't poll for it; people would be incentivized to exaggerate their degree of preference so that their vote would count more.
"Law is full of loopholes, where you can avoid the intent of particular laws via clever combinations of behaviors. As in asset protection, tax shelters, litigation-proofing, contrived defenses, and political asylum."
Those loopholes are there because the rich and powerful want them to be there, because they are the ones with the power to exploit them. Meanwhile police will destroy the tents and temporary structures of homeless people. The legal system works for the powerful, who designed it that way.
I enjoyed reading this thought-provoking article, and I agree with many of the points raised. However, I believe that one key area we could focus on to address the perversity of law is increasing transparency in the legal system.
Ensuring easy access to legal information and promoting clear communication within the judiciary can foster trust and reduce confusion. By providing insight into how decisions are made, we can help promote fairness and prevent corruption. Moreover, engaging citizens in the law-making process through public consultations and open discussions can lead to more inclusive and well-informed laws that better address the needs of the community.
In short, a more transparent legal system can lead to a reduction in perverse outcomes and create a more efficient and trustworthy system that serves the needs of the people. While this may not be a complete solution, it is a crucial step in the right direction.
"Weak consumer choice pressures" sounds like a delightfully sanitized way of describing a tyrannical monopoly. Our rulers, both elected and unelected (judicial) are all lawyers. They appear to have no incentives to give us good laws or good rulings.
Its a body of knowledge accreted over centuries by various nearly independent factions, I think it should be expected to be even more silly than it is. Firms are the same which is why they go down and new ones replace them. No one has restarted the Law from first principles yet, such that it would still fit indide a human mind.
Great post, I'm interested in whether or not we are moving towards a more perverse or less perverse legal regime, especially given the rise of a global elite culture. I also wonder in what other areas does reliance on common moral intuitions produce less desirable results.
“We learned that the simple method of a weighted average over individual utility functions does a fine job of combining individual preferences into a consistent group preference.”
I’m not surprised that this is a consensus among scholars of politics, though I find it implausible on first sight. Can you give a bit more of a hint about how I might track down this idea? Hints about how it deals with the interpersonal comparability and cardinality of utility measurements would be a bonus.
David Friedman has made some comments in this direction on his Substack, but I didn’t get the impression he was following a published literature. On reflection, I should ask him also.
I think a number of your law examples miss relevant considerations.
For instance, re: corporal punishment and volume discount on crimes there is the consideration of protecting the community by keeping people locked up and the fact that criminals are often behaving irrationality about future consequences.
If you want to both minimize the utility loss as a result of keeping someone imprisoned but know that extra time on a sentence beyond 5-10 years doesn't do much to decrease deterrence then volume discount on crimes is a plausible solution. Especially if criminals aren't behaving fully rationally.
Regarding some of your other examples (and I think the corporal punishment one to an extent), while I agree many of these are stupid, they are a result of the voter wanting to feel good about themselves. Yes, I think ppl should be able to sell sex, some organs etc, but voters don't want to believe they live in a society where that's really a rational choice or wish to enforce their moral views so it's hard to see a fix within a democratic system.
"the simple method of a weighted average over individual utility functions does a fine job of combining individual preferences into a consistent group preference."
Sure - the problem is, everyone's true utility function is unknown to anyone but them, and there's no way to extract it for voting purposes. You can't poll for it; people would be incentivized to exaggerate their degree of preference so that their vote would count more.
"Law is full of loopholes, where you can avoid the intent of particular laws via clever combinations of behaviors. As in asset protection, tax shelters, litigation-proofing, contrived defenses, and political asylum."
Those loopholes are there because the rich and powerful want them to be there, because they are the ones with the power to exploit them. Meanwhile police will destroy the tents and temporary structures of homeless people. The legal system works for the powerful, who designed it that way.
I enjoyed reading this thought-provoking article, and I agree with many of the points raised. However, I believe that one key area we could focus on to address the perversity of law is increasing transparency in the legal system.
Ensuring easy access to legal information and promoting clear communication within the judiciary can foster trust and reduce confusion. By providing insight into how decisions are made, we can help promote fairness and prevent corruption. Moreover, engaging citizens in the law-making process through public consultations and open discussions can lead to more inclusive and well-informed laws that better address the needs of the community.
In short, a more transparent legal system can lead to a reduction in perverse outcomes and create a more efficient and trustworthy system that serves the needs of the people. While this may not be a complete solution, it is a crucial step in the right direction.
"Weak consumer choice pressures" sounds like a delightfully sanitized way of describing a tyrannical monopoly. Our rulers, both elected and unelected (judicial) are all lawyers. They appear to have no incentives to give us good laws or good rulings.
Its a body of knowledge accreted over centuries by various nearly independent factions, I think it should be expected to be even more silly than it is. Firms are the same which is why they go down and new ones replace them. No one has restarted the Law from first principles yet, such that it would still fit indide a human mind.
Truly bizarre how so many people think Arrow's impossibility theorem is important.
Great post, I'm interested in whether or not we are moving towards a more perverse or less perverse legal regime, especially given the rise of a global elite culture. I also wonder in what other areas does reliance on common moral intuitions produce less desirable results.
“We learned that the simple method of a weighted average over individual utility functions does a fine job of combining individual preferences into a consistent group preference.”
I’m not surprised that this is a consensus among scholars of politics, though I find it implausible on first sight. Can you give a bit more of a hint about how I might track down this idea? Hints about how it deals with the interpersonal comparability and cardinality of utility measurements would be a bonus.
David Friedman has made some comments in this direction on his Substack, but I didn’t get the impression he was following a published literature. On reflection, I should ask him also.