Hard Cases And Treating Symptoms

     “Hard cases make bad law” entered the catalogue of American legal maxims through Associate Supreme Court Justice Oliver Wendell Holmes in 1904. It’s supposed to warn lawmakers not to twist simple laws all out of shape to cover unusual situations. By and large, lawmakers in our time have ignored it. That’s one of the reasons the laws fastened upon us run to thousands of pages, such that no one except specialists in that particular law genuinely know what it requires.

     In witness of the counter-trend against hard-case law, we have this:

     Yes, it’s from CNN. Note the trailing sentiment from Will Fischer. He disdains generosity; he wants the government to step in. That is, he wants more law. The comments that trail that image at X, where I found it, are mostly to the opposite effect.

     The more-law advocate would normally reply along these lines:

     “Well, all right, this teacher’s colleagues stepped up to help him this time. But he’s just one case. The whole insurance system is broken. It leaves thousands of men like that teacher un-helped! It’s a disease that needs a systematic cure. You don’t cure a disease by treating a symptom!”

     That is the plea of the socialist. It’s recognizable at a hundred paces. By marrying it to a sympathetic figure in acute personal need, the socialist disguises his underlying intention: to have the State take over the provision of all medical goods and services.

     My old friend Dystopic a.k.a. Thales (neither is his real name, as if you needed to be told) called this weaponized empathy. He wrote penetratingly on its effectiveness. It’s a pity his site The Declination is no longer available for me to cite.

     I’m poised to deliver a revelation, here. It disturbed me when it came to me. I guarantee that it will disturb you, Gentle Reader. Yet it’s too important for me to keep to myself. It casts an unforgiving light on all of us who pontificate about public policy – specifically, on our tendency to aggregate things into “systems,” as if human societies could be organized the way a mechanic organizes his tools.

     Indeed, it’s so important that I’m going to cast in giant font, so that no one, however casually he’s inclined to scan my drivel, could possibly miss it. Are you ready? There here it comes:

Every specific event,
Every concrete instance of anything,
No matter whom it affects or how many,
IS A SYMPTOM.

     Sometimes it’s possible to see compelling similarities among an assemblage of events. Sometimes the people who see them propose schemes for dealing with them in a uniform or almost uniform fashion. That’s when the talk begins about “problems” and “solutions.” That brings forth planners and their “systems.” And that is what has albatrossed medical services (among other things) in these United States.

     But there’s no such thing as a system that lacks hard cases. All systems are challenged by cases that don’t quite fit the definitions, the scope, or the capabilities of the system. Another term for hard cases is edge cases. The edge case hovers tantalizingly out of reach, just beyond the edge of the system in place. It tempts lawmakers to stretch their creations just a wee bit… just enough to capture the plight of the poor, massively sympathetic figure at the edge. He needs our help, doesn’t he? And didn’t we erect the system to help people just like him?

     Once again, allow me to quote the great John Gall:

     Government Systems, acting in accordance with the laws of growth, Tend to Expand and Encroach. In encroaching upon their own citizens, they produce Tyranny, and encroaching upon other Government Systems, they engage in Warfare…. What is the track record of large systems designed for the express purpose of solving a major problem? A decent respect for our predecessors prevents us from dwelling upon the efforts of governmental administrations to eradicate poverty, reduce crime, or even get the mail delivered on time.

     [John Gall, Systemantics]

     In our Constitutional republic, edge cases are the principal ongoing driver of government growth. There will be journalists who will write about them in dramatic, often shocking terms, and editorialists who’ll ask “Why hasn’t anything been done yet?” Interest groups will latch onto them. Bureaucrats will see prospects for promotion and salary increases in them. Politicians will hitch their careers to them.

     And as the “adjustment” to the system in place will require just a little more money from the public, and will reduce free choice just a little bit more, the system will be extended to cover the luridly reported edge case. The sufferer will receive benefits. The bureaucracy will expand. The politicians will gain an increment of prestige.

     Will there be losers? Of course! The journalists will have to find fresh stories over which to slather their preferred adjectives. The editorialists will need new issues over which to fulminate and declaim. And let’s not forget you and me, as our choices among practitioners and insurers shrink and the hoovering of our wallets by the Omniscient, Omnipotent, Omnibenevolent State intensifies.

     We’d be far better off treating symptoms one by one. Don’t tell your doctor that, of course. To him it would constitute medical heresy. He wants to identify and treat the disease; it’s what he was taught to do. But given that so many people come to him with eye problems, ear problems, nose problems, teeth problems, scalp problems, and so forth, you might want to ask him whether he would favor a system that simply cuts off the sufferer’s head.

     There are people out there who’d vote for that.

A Vested Interest In Disorder

     It’s been said that one should infer the intent behind a system from the results it produces. There’s some validity to that, though it’s not an absolute. After all, we understand the Law of Unintended Consequences. We also understand that some consequences are beyond our ability to foresee. So we must make allowances for human fallibility, and for the limits of our reasoning powers.

     But there is this as well: A system that produces perverse or destructive consequences over a long period of time, when at any point in that sequence it was possible to pause or terminate the system and revisit the thinking behind it, is a near-to-irrefutable indicator of malevolence at work.

     Predators exploit our unwillingness to make that inference.

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     There’s a lot of bilge slopped around about “systems,” “systems thinking,” and whatnot. Most of it isn’t worth the breath needed to say it. I’d rather not sound like an arrogant asshole – I don’t have the wardrobe for it – but I often find myself wondering how anyone could look at an obvious mess and not ask “Why do they tolerate this, when it’s so obviously malign?” Of course, they explicitly and most deliberately excludes your humble Curmudgeon Emeritus, whose inclination is always to fix what’s so plainly broken... or to discard it if it can’t be fixed.

     I could be thinking of any of a huge set of things, couldn’t I? Indeed, I am thinking and talking about a great many things, all at once. For we are surrounded by “systems” that perpetually produce perversities by the common understanding of things. When those “systems” are the fruit of planning, when they demand resources and human action to erect and operate, and when they require the ongoing acceptance of a great many people to continue as they are, it’s my job as a citizen to demand explanations, corrections, restitution for the maltreated, and retribution visited upon identifiable malefactors.

     It’s your job too, Gentle Reader. “The consent of the governed,” remember?

     We appear to have abdicated our responsibilities.

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     It’s time for a couple of quotes. First, one from a very well-known source:

     "Senor d'Anconia," declared the woman with the earrings, "I don't agree with you!"
     "If you can refute a single sentence I uttered, madame, I shall hear it gratefully."
     "Oh, I can't answer you. I don't have any answers, my mind doesn't work that way, but I don't feel that you're right, so I know that you're wrong."
     "How do you know it?"
     "I feel it. I don't go by my head, but by my heart. You might be good at logic, but you're heartless."
     "Madame, when we'll see men dying of starvation around us, your heart won't be of any earthly use to save them. And I'm heartless enough to say that when you'll scream, 'But I didn't know it!'—you will not be forgiven."

     Now one from another, equally valuable if slightly less popular source:

     “[T]he time-tested method of instilling social virtue and respect for law in the minds of the young did not appeal to a pre-scientific pseudo-professional class who called themselves ‘social workers' or sometimes ‘child psychologists.' It was too simple for them, apparently, since anybody could do it, using only the patience and firmness needed in training a puppy. I have sometimes wondered if they cherished a vested interest in disorder -- but that is unlikely; adults almost always act from conscious ‘highest motives' no matter what their behavior."

     In 1959, when Robert A. Heinlein published Starship Troopers, he was already in his fifties. He’d seen a great deal and had evaluated it with logic and precision. Yet note the extraordinary difference between then and now. Crime was known, but it was hardly a patch on what we endure today, particularly in our cities. Juvenile misbehavior? Racial disorder? General disrespect for law, public order, and social propriety? In comparison with today, in 1959 those things were negligible. If Heinlein is able to see our present from the afterlife, he must be shaking his head at our foolishness. “Didn’t they listen to me? Can’t they learn?”

     But then, at the time of Starship Troopers’ publication, Heinlein could credibly say that “a vested interest in disorder” was “unlikely” – that the motives of those who operated the justice system could be trusted. Would he say so today?

     In that regard, Rand’s penetration was the more accurate of the two. Our forebears will not forgive us. Our descendants, should we have any, won’t do so either.

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     Our abdication of our responsibilities as citizens has many rationalizations. There’s no need to enumerate them. Suffice it to say that “the consent of the governed” is a real thing. The difficulty in exercising it lies in our lack of an overall consciousness. E pluribus unum may appear on our currency, but it has no application to our will.

     Yet we must rise to the occasion, especially in the matter of criminal justice. When we see serious crimes, especially crimes of violence, go unpunished for absurd reasons; when we see habitual criminals released from prison after trivially laughable confinements; when we see repeat offenders repeatedly released without bond to roam free after thirty, fifty, seventy felony arrests – it’s no longer possible to believe that those who maintain and operate the criminal justice system are acting from “highest motives.” We must indict those persons as deliberate, conscious perpetrators of disorder. We are morally and practically obligated to act.

     Yet we don’t. Whatever rationalization we apply, we don’t muster the will to rise up and compel justice be done to the policemen, the lawyers, the judges, the parole boards, and whoever else works to keep “the system” as it is.

     We have demarcated “the system” as something apart from us.

     I shan’t repeat my sentiments about vigilance committees and their application to our context. That’s a more specific point than the one I’ve set out to make. So it’s time to stop beating around the bush and make it. Whatever political or social malfunction may concern you most, hear and remember this:

We are part of “The System.”
We must function as such.

     More anon.

Planning, Systems, And Epiphenomena

     There’s a pervasive myth abroad that various human activities can be planned out a priori, and that the activity can somehow be compelled to follow the plan without deviation. Many persons in the engineering fields are aware of this myth by virtue of having had it imposed upon them from above, typically in response to a nightmare such as the ISO-9000 system.

     It’s a sham and a delusion. The reason for its illusory character is simple. Let it be known henceforward as The Curmudgeon’s Pessimistic Axiom:

No one knows what he’s going to do
Before he actually does it.

     There are a few exceptions, but they all relate to the simplest of simplicities, such as arising from slumber and going to the toilet. Nearly fifty years in software engineering has convinced me of this. Would anyone care to argue the point?

     But I’m not here to talk about engineering. Not really.

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     This morning’s stimulus was provided by Mark “Mad Dog” Sherman:

     Is Income Inequality Fair?

     The point of income inequality is to give those learning to be productive an incentive and a goal. The progressive left wants to destroy these incentives because in the end some, but not all, end wealthy. At least this is the argument used. I doubt this is the underlying reason at all. I am more inclined to believe progressives want to control others and want a reason to confiscate wealth, and income for their own uses.

     Mark’s contention about the Left is, of course, absolutely correct. What piqued me was the suggestion that income inequality, which appears to be a feature of every economic scheme, has a “point:” i.e., a preconceived purpose that partially animated the “design” of the economic system.. Granted that, as Mark states, in a largely free economy such as ours, income inequality provides a spur to learning and the acquisition of valued skills. However, even in a system planned out as rigidly as the most absolute totalitarianism would permit, income inequality would arise. It always has. There’s no reason to imagine that that will change.

     Whether or not the planners plan for it, there will be income inequality. But why?

     The key word is epiphenomenon.

     An epiphenomenon of a system is a characteristic that arises unplanned from that system. It is a consequence of lower-level characteristics of the system…sometimes, of fundamental properties built into the laws of nature. There are sometimes means by which an epiphenomenon of a human-designed system can be altered, but in the usual case, it involves altering designed-in fundamentals of the system. That will always have other consequences, not all of them desirable or benign.

     Every system of any kind will possess epiphenomena. This flows from the Pessimistic Axiom, but equally from another important law of nature:

No action is without side effects. – Barry Commoner

     Alternately:

You can never do only one thing – Marc Stiegler

     All causal reasoning must take this aspect of temporal reality into account.

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     The point of this tirade is not to discourage people and corporations against planning their activities. Planning is yet another inevitability. However, the point of planning should not be to create a rigid blueprint for the action that follows. Rather, a plan should be viewed as a guide to optimal results under optimal circumstances…which we already know will not exist. The most important function of a plan is to stimulate learning and adjustment: the constructive acceptance of our fallibility and the recognition of necessary changes as we encounter them.

     Quite a long time ago, I had an intricate exchange with the C.S.O. about metaphysical fundamentals. The details, though fascinating, aren’t really relevant here. What was most memorable was when she summed up my argument in a single brief sentence:

“So it’s ‘God did it’ or ‘shit happens,’ is that what you’re saying?”

     And that is exactly correct, albeit with a small edit: replace the conjunction or with and.

     Yes, God did it. But shit does happen. Quite a lot of it, actually. People and things change in unpredictable and therefore unpredicted ways. We must cope. Sometimes we fail to do so adequately. One way or another, the consequences will include epiphenomena we did not plan for and might have hoped to avoid.

     Hearken to Theodore Sturgeon, from his magnificent novelette “Slow Sculpture:”

     Only the companion of a bonsai (there are owners of bonsai, but they are a lesser breed) fully understands the relationship. There is an exclusive and individual treeness to the tree because it is a living thing, and living things change, and there are definite ways in which the tree desires to change. A man sees the tree and in his mind makes certain extensions and extrapolations of what he sees, and sets about making them happen. The tree in turn will do only what a tree can do, will resist to the death any attempt to do what it cannot do, or to do it in less time than it needs.. the shaping of a bonsai is therefore always a compromise and always a cooperation. A man cannot create bonsai, nor can a tree; it takes both, and they must understand each other. It takes a long time to do that. One memorizes one’s bonsai, every twig, the angle of every crevice and needle, and, lying awake at night or in a pause a thousand miles away, one recalls this or that line or mass, one makes one’s plans. With wire and water and light, with tilting and the planting of water-robbing weeds or heavy root-shading ground cover, one explains to the tree what one wants, and if the explanation is well-enough made, and there is great enough understanding, the tree will respond and obey—almost. Always there will be its own self-respecting, highly individual variation: Very well, I shall do what you want, but I will do it my own way. And for these variations, the tree is always willing to present a clear and logical explanation, and more often than not (almost smiling) it will make clear to the man that he could have avoided it if his understanding had been better.
     It is the slowest sculpture in the world, and there is, at times, doubt as to which is being sculpted, man or tree.

     Systems, especially those that include living actors, are like that: difficult to plan and filled with epiphenomena, some of which will always run counter to the preferences of the planners. For we don’t know what we’re going to do until we’ve actually done it.

     Time to go furniture shopping. Enjoy your Saturday.