Law – Page 28 – a sibilant intake of breath

Democracies and the wisdom of crowds

There are no perfect democratic systems; all those that have ever existed, that exist now, and that will exist have flaws.

In systems like Canada’s, voters choose between individual candidates. And yet, the platforms and leadership of parties are usually much more important for the direction of policy-making than the identity of individual Members of Parliament. By contrast, there are countries with systems of proportional representation in which the importance given to individuals is too little. That leaves voters without a direct mechanism for electing especially wise or capable people, and can diminish the level of awareness assemblies have to local issues.

On many other dimensions, the structure and character of democratic governments differ – whether the issue is the lobbying system, electoral law, federal versus central states, or something else. Each particular set of circumstances aids some groups (think of how Canada’s first-past-the-post system helps the Bloc Quebecois) while harming others (think of the Greens).

In the end, it isn’t possible for every country to establish a government that incorporates every desirable feature. Quite simply, some of them directly contradict others. What could be possible, however, is to exploit the wisdom of crowds. If we recognize that our system of government has deficiencies that manifest themselves in problematic policies, keeping an eye on policy development in other jurisdictions can serve as a bit of a counter to that. This already happens, for example, as when people turn to Scandinavia when discussing drug or childcare policies.

Taking a step further, it is possible for the political decisions in other democratic places to directly affect the situation in Canada. One major mechanism for this is when courts apply foreign precedents, particularly when dealing with new areas of law, or issues in which societal expectations are changing. Every time a judge presented with a case on gay rights or intellectual property gives consideration to what is happening in Europe or New Zealand or India, they are taking advantage of the diversity in policies that accompanies the diversity in forms of democratic government.

The ultimate example is something like the European Union, which actually incorporates 27 democratic governments and has decision-making power of its own. One of the reasons why it is such an exciting experiment is because of the potential it was for allowing the flaws of each constituent state to be partially counterbalanced by the sensible overall character of the consensus.

Of course, all this is anathema to the kind of old school patriots who are fearful of foreign precedents in domestic courts and cling as much as possible to the original words and meanings of founding documents. That is not an entirely irrational attitude. It is certainly possible that following the wisdom of crowds will produce a worse outcome than going it alone will. Overall, however, I think that a greater degree of international policy coordination is likely to be beneficial. Partly, that is a consequence of the extreme interconnectedness and interdependence of human beings today. The happenings in one political jurisdiction have never been more relevant and important to the inhabitants of all others. That – along with the potential to smooth the rough edges of our domestic political systems – is a major reason for making our sovereignties a bit more porous.

Smoking and climate change

Tristan keeps telling me that ozone depletion and acid rain are poor comparisons for climate change. Yes, they were major environmental problems that were identified scientifically, and then dealt with legislatively. But addressing them only really involved a small number of organizations, and processes that could be fairly readily replaced. Addressing the issues didn’t require much social or political change.

That’s fair enough, but perhaps there is an alternative comparison that is useful: smoking. Watching Mad Men constantly reminds me of how much of a transformation there has been in the public attitude toward smoking in the past few decades. While part of that was certainly driven by personal fear (smoking will kill you personally, climate change will not), the transition also involved moral arguments about the effects of secondhand smoke on unconsenting others. And it involved government imposing increasingly harsh regulations on an industry that was highly profitable, powerful, and fundamentally opposed to having its products restrained by law.

Perhaps growing awareness of the harms fossil fuels impose on others – including those in future generations – could help to drive a similar cultural shift. We have promising alternatives to fossil fuels, but our political system is still unwilling to take on the industries that want to keep us reliant on them. Perhaps smoking suggests that could change.

DDT and evolution

Naomi Oreskes’ book about climate change deniers makes some interesting points about the pesticide DDT. Apparently, there has been a kind of campaign recently to challenge the history of the substance and its ban, with some anti-regulation groups claiming the regulation of DDT was unneccessary and caused many human deaths. They argue that if DDT use had not been regulated, malaria could have been eradicated.

Oreskes seems to rebut this argument convincingly. Critically, she points out how DDT had been stripped of its effectiveness through over-use, particularly in agriculture. She makes the point that the consequences of different sorts of DDT use for the genetics of the mosquito population can be very different. Spraying indoors exposes only a small minority of mosquitoes to the chemical, leaving most of the population isolated from it. As a consequence, there is only a small advantage for those mosquitoes that are more resistant to the poison. By contrast, widescale agricultural spraying exposes whole populations of mosquitoes to the toxin. Those who are a bit resistant to it have a huge advantage, and soon come to dominate the population. Over time, the indiscriminate use of DDT breeds mosquitoes who are troubled less and less by the toxin.

Oreskes documents how the banning of DDT took place only after its effectiveness was lost, as well as how the environmental and human health effects of the substance were sufficiently worrisome to justify the ban. She argues that the recent attempt to change the historical narrative is not about DDT itself – which nobody is seeking to reintroduce. Rather, it is intended to foster and enlarge a general sense that taking precautions to protect human health and the environment is unjustified, and that science that supports the regulation of industry and individual behaviour is ‘junk’.

A related situation that I have written about before is the abuse of antibiotics in the livestock industry. Just as the agricultural use of DDT provided ideal circumstances for insects to evolve resistance, today’s factory farms may as well have been custom designed to render our antibiotics ineffective. Crowding huge numbers of unhealthy animals close together, flooding them with chemicals to make them grow as quickly as possible, feeding them unnatural diets, and then using antibiotics to try and keep them from dying too early, is a string of compounding errors. Not only does it demonstrate considerable disregard for the welfare of the animals in question, but it demonstrates a lack of foresight when it comes to maintaining the effectiveness of our drugs and the relative manageability of the bacteria out there.

Of course, the political system tends to favour the small group of farmers that benefits from the status quo and which would suffer significantly from a change in policy, rather than the great majority of people who are incrementally harmed by the emergence of ever-more-dangerous superbugs, and the dilution of the effectiveness of the relatively small class of chemicals capable of safely killing bacteria inside human beings, without causing undue harm to the person.

Obama and just war

The concept of ‘just war’ is one with deep roots in philosophy and law – a recognition that while wars are inevitably terrible, sometimes they are less terrible than the alternatives available. While it may have been incongruous of Barack Obama to use his Nobel Peace Prize address to discuss the subject, it was probably the only reasonable thing he could do, given his commitment to a sustained (but shrinking) presence in Iraq and his re-commitment to the war in Afghanistan. Indeed, when I first heard about the decision of the Nobel committee, I thought Obama’s best choice would be to graciously decline the prize, saying that he had not yet accomplished anything worthy of it, and was involved in the prosecution of two wars, to boot.

Obama’s sketch of the philosophy of just war includes elements of both jus ad bellum – the question of when it is right to go to war – and jus in bello – the question of how to rightly conduct yourself during war:

The concept of a “just war” emerged, suggesting that war is justified only when certain conditions were met: if it is waged as a last resort or in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence.

He also stresses how the elimination of violent conflict is not a plausible aim, for the decades ahead:

We must begin by acknowledging the hard truth: We will not eradicate violent conflict in our lifetimes. There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified.

He discusses the ways in which contemporary conflicts differ from those in more distant history, describes how American military strength has helped to maintain international stability in recent decades, and argues that some enemies can only be effectively confronted with violence. He also expresses support for the concept of humanitarian intervention, arguing that in cases like the Balkans, it can be justified to use force to stop crimes against humanity, even when doing so is a violation of traditional notions of state sovereignty

At the same time as he argues for the occasional necessity of war, Obama recognizes that war always involves horror:

So yes, the instruments of war do have a role to play in preserving the peace. And yet this truth must coexist with another – that no matter how justified, war promises human tragedy. The soldier’s courage and sacrifice is full of glory, expressing devotion to country, to cause, to comrades in arms. But war itself is never glorious, and we must never trumpet it as such.

Obama’s solution, for reducing the degree to which war is terrible and frequent, is to increase the strength of international institutions, though he doesn’t go so far as to say that the United States will never act unilaterally.

Obama brings up the issue of nuclear proliferation, but does not specify how far he would go to prevent it or roll it back:

One urgent example is the effort to prevent the spread of nuclear weapons, and to seek a world without them. In the middle of the last century, nations agreed to be bound by a treaty whose bargain is clear: All will have access to peaceful nuclear power; those without nuclear weapons will forsake them; and those with nuclear weapons will work towards disarmament. I am committed to upholding this treaty. It is a centerpiece of my foreign policy. And I’m working with President Medvedev to reduce America and Russia’s nuclear stockpiles.

But it is also incumbent upon all of us to insist that nations like Iran and North Korea do not game the system. Those who claim to respect international law cannot avert their eyes when those laws are flouted. Those who care for their own security cannot ignore the danger of an arms race in the Middle East or East Asia. Those who seek peace cannot stand idly by as nations arm themselves for nuclear war.

Earlier, he talks about developing “alternatives to violence that are tough enough to actually change behavior”, but he does not follow through and explain at what point sanctions should be abandoned in favour of the use of force, though perhaps that question is always too complex to answer with a general formula applicable to all circumstances.

All told, the speech is a thoughtful and defensible one that tries to reconcile principle with pragmatism. At its best, the United States is a key force for stability in the world, as well as the promotion of democracy and human rights. At the same time, it is very plausible that the relative power of the United States will continue to fall, producing difficult new situations in which to make foreign policy.

Obama doesn’t mention the difficulties of domestic politics – one major factor that has hampered him in trying to close down Guantanamo Bay – but that is certainly one of the biggest factors constraining his freedom of movement. Obama has certainly disappointed a lot of people by not changing foreign policy as swiftly or dramatically as they would have liked. It is not entirely clear to what extent that is the product of him being president, rather than a candidate; to what extent it is the result of domestic constraints; and to what extent it is the result of other factors. He closes in saying: “Clear-eyed, we can understand that there will be war, and still strive for peace.” It remains to be seen how that aspiration will stand beside the totality of his record as president.

But if Not

In 1967, Martin Luther King delivered a speech about civil disobedience, entitled “But if Not“. One passage from the speech – which was delivered at the Ebenezer Baptist Church in Atlanta – seems quite relevant to climate change today, particularly when it comes to people who have a high degree of knowledge about the subject:

I say to you this morning that if you have never found something so dear and so precious to you that you will die for it then you aren’t fit to live. You may be thirty eight years old, as I happen to be, and one day some great opportunity stands before you and calls upon you to stand up for some great principle, some great issue, some great cause and you refuse to do it because you are afraid; you refuse to do it because you want to live longer; you’re afraid you will lose your job; or you’re afraid that you will be criticized or that you will lose your popularity; or you’re afraid that somebody will stab you, shoot at you, or bomb your house and so you refuse to take a stand. Well you may go on and live until you’re ninety, but you’re just as dead at thirty eight as you would be at ninety. And the cessation of breathing in your life is but the belated announcement of an earlier death of the spirit. You died when you refused to stand up for right. You died when you refused to stand up for truth. You died when you refused to stand up for justice.

The point about integrity relates to one made by the physicist Richard Feynman, who argued that experts lose their integrity when they allow their conclusions to be publicized – when they are useful to those in power – and allow them to be buried when they are not.

[Update: 19 January 2015] I noticed that the YouTube link in the original post is dead, so here is an audio version.

Climate and HFC-23

I have mentioned before how the gas HFC-23 causes problems in carbon markets. A recent article in The Economist describes the ongoing problem and how it might be addressed. The basic problem is that firms can earn so much for destroying HFC-23, they actually have an incentive to produce it for that purpose:

You cannot simply set up an HCFC-22 plant and demand cash; eligibility is limited to companies which were already producing the gases in 2000-04, and companies are capped in the amount they can receive. But there is little incentive for approved incineration schemes to reduce the amount of HFC-23 that they produce. Quite the reverse, argues CDMwatch, a group that monitors the offset market. It says it has shown the CDM executive board that some plants have reduced their HFC-23 production during periods in which they were ineligible for CERs and upped it when they became eligible again, gaming the system. “They found the smoking gun,” says Michael Wara, a professor at Stanford Law School.

All told, offset systems have a lot of promise. They could allow emission reduction targets to be reached more fairly and at lower cost. It is essential, however, that they be designed and operated in ways that prevent this sort of abuse.

Two kinds of adaptation

When people talk about ‘adaptation‘ in the area of climate change, they usually mean all the activities by which human beings can reduce how vulnerable they are to the expected and unexpected consequences of greenhouse gas emissions. This includes everything from developing drought-resistant crops to designing infrastructure to be able to tolerate sea level rise.

In his essay “Ethics and Global Climate Change” University of Washington professor Stephen Gardiner highlights how human adaptation in response to climate change can take two forms: we can adapt to the unpredictable physical consequences that arise from humanity’s greenhouse gas emissions, and we can set up regulatory structures that restrict greenhouse gas emissions, requiring firms and individuals to adapt their lifestyles and business practices to be appropriate in a carbon-constrained world.

As he points out, the latter type of adaptation is preferable to the former in many ways:

On the one hand, suppose we allow global warming to continue unchecked. What will we be adapting to? Chances are, we will experience both a range of general gradual climatic changes and an increase in severe weather and climate events. On the other hand, if we go for abatement, we will also be adapting but this time to increases in tax rates on (or decreases in permits for) carbon emissions. But there is a world of difference between these kinds of adaptation: in the first case, we would be dealing with sudden, unpredictable, large-scale impacts descending at random on particular individuals, communities, regions, and industries and visiting them with pure, unrecoverable costs, whereas in the second, we would be addressing gradual, predictable, incremental impacts, phased in so as to make adaptation easier. Surely, adaptation in the second kind of case is, other things being equal, preferable to that in the first.

Gardiner, Stephen. “Ethics and Global Climate Change” in Gardiner, Stephen et al. Climate Ethics: Essential Readings. p.12 (paperback)

That strikes me as an elegant way of presenting the situation in which humanity finds itself. Governments can either take the lead and drive a preferable kind of adaptation, or they can ignore the problem until unfolding natural events force a more painful sort.

How to meet Canada’s climate targets

The biggest problem with Canada’s climate change policy is that our plans are not sufficient to meet our targets. Furthermore, our plans aren’t even being implemented.

The government says it wants to cut Canadian emissions to 17% below 2006 levels by 2020, and to 60-70% below by 2050. If they really wanted to do that, they could achieve that outcome simply by doing the following:

Choose a series of annual emissions targets, starting this year and running out to 2050 and beyond.
In each of those years, auction a quantity of permits for the production and import of fossil fuels. Also require permits for activities that generate other greenhouse gases, such as methane. Anybody who wanted to produce fossil fuels, import them, or emit greenhouse gases in other ways would require a quantity of permits equal to their emissions. The price of the permits would be determined by auctioning.
Take the auction revenues and send an equal share to every Canadian each quarter by direct bank account deposit or cheque.

This approach would be simple and fair. It would not cost much to administer, since the permits would be auctioned at as high a level as possible. It would conform to the polluter pays principle, since they would do just that. It would send price signals to consumers, as the firms that bought permits passed along the cost. And the whole system would be revenue neutral, since all the revenues would be returned to Canadians. Critically, it would ensure that Canada hit its greenhouse gas emission reduction targets, each and every year.

This kind of approach is known as cap and dividend.

So, why doesn’t the government just go ahead and do this? The major reason is that people who have emitted greenhouse gases in the past feel that gives them the right to do so in the future. If this plan was put in place, all the industries that have been using the atmosphere as a free dumping ground for CO2, methane, and other greenhouse gases would suddenly need to pay for their waste disposal. This could seriously affect the growth prospects of some industries.

That said, since the cap would begin at current levels and gradually shrink down toward the target, no businesses would get obliterated immediately. They would simply need to adapt, in a fair way, to the kinds of business models required to meet the government’s stated climate change targets. The fact that the government is not pursuing an approach that would cause them to do so is the clearest indication that Canada’s government is not serious about dealing with the issue of climate change.

The history of guns in America

Back in 1999, The Economist published an interesting historical account of the emergence of America’s current gun culture. It debunks a number of myths, such as that the American populace in general has always been widely armed, that militias were important defensive forces, and that the ‘Wild West’ involved a lot of gun violence. It also includes interesting passages on the marketing of guns and gun ownership, first by manufacturers and later by the National Rifle Association:

[Gun maker Samuel] Colt was a self-publicist of genius. When his brother, John, unfraternally chose a mere axe with which to commit murder in 1841, Samuel persuaded the court to let him stage a shooting display inside the courtroom to demonstrate the superiority of the new revolver over the axe as a murder weapon. Using these publicity skills, and displaying precocious evidence of lobbying ability (he gave President Andrew Jackson a handgun and pioneered the practice of wining and dining members of Congress), Colt aimed his campaign at the growing middle class. He devised advertising campaigns showing a heroic figure wearing nothing but a revolver defending his wife and children. His guns were given nicknames (Equalizer, Peacemaker and so forth). Since most of his customers did not know how to use a firearm, he printed instructions on the cleaning cloth of every gun. His initial success shows up in the probate records: the percentage of wills listing firearms among their legacies rose by half between 1830 and 1850.

The axe, it seems, was a surprisingly popular murder weapon at certain times in history. Between 1800 and 1845, it came fourth. Beating, strangling, and drowning were in the lead, followed by stabbing, then guns, then axes.

The article describes how the first federal gun control law (banning sales by post) was only enacted after the Kennedy assassination, and mentions the subsequent role of the NRA in preventing more ambitious legal control over firearms.

It certainly makes for interesting reading.

The state of Canada’s civil service

Alex Himelfarb, a former Clerk of the Privy Council (Canada’s top civil servant), recently published an article in The Mark talking about public policy and Canada’s civil service. He is candid about how he sees the role of the civil service developing, calling it an institution “increasingly described as in crisis, trying to serve in a climate of blame and mistrust masquerading as accountability.” He expresses concern about partisanship and the superficial character of politial debate, and warns about how policy can drift in damaging directions. Finally, he suggests that there is hope in the emergence of increased public debate:

What we need now is a public discourse that neither dismisses nor panders to our private concerns, but rather links them to public issues. It’s time we override our impulse to paper over our differences and demand that our leaders participate with us in the dialogue, however difficult, we so need. We cannot let Canada change without a fight – or at least a vigorous conversation.

To some extent, this mirrors the enthusiasm of the present Clerk for Web 2.0 – though government in general may not yet be willing to allow the level of freedom, individuality, and independence required for that shift to be meaningful.

Himelfarb also wrote another piece, in the same newspaper, about ‘Why We Vote Against Our Interests‘. As further discussed in an interview on The Commons, the former Clerk expresses concern about the diminished role of expertise in policy-making:

There is something unseemly and even dangerous about the assault on evidence and experts especially coming from our political leaders. But it has resonance with many because government seems distant from and irrelevant to our lives, a “foreign thing” where decisions are made about us but without us. The distance between citizen and state must be reduced.

We can only hope that the public policy debate in Canada evolves back towards reasoned discussion on the basis of sound logic and evidence. To make policy Stephen Colbert style – from the gut – doesn’t equip Canada to deal with the challenges ahead, or take advantage of upcoming opportunities.