law

Oscar Wilde and The Irony of Atonement

wilde-fansEngland feels really bad about what it did to Oscar Wilde.

I mentioned a couple of weeks ago that they just posthumously pardoned him, along with thousands of other gay men. The apologies continue at the National Portrait Gallery where portraits of Wilde and Lord Alfred Douglas are being displayed side by side to mark society’s change in attitudes. The Evening Standard reports that this is part of a show marking the decriminalisation of homosexuality in 1967.

We’ve come a long way since William Powell offered to paint Wilde out of his “A Private View at the Royal Academy” in the wake of Wilde’s trials.

There is a small irony, however, in using Wilde to celebrate the 1967 change in the law.
If Wilde had been tried under the Sexual Offences Act of 1967,  he would have received a five year sentence rather than the two year sentence he did under the LaBouchere Amendment. The law that decriminalized gay sex set the age of consent at 21 and almost all of Wilde’s partners mentioned in court were younger than that, the youngest being sixteen and seventeen. (In 1994, the age of homosexual consent was lowered to 18 and then, in 2000, to sixteen bringing it in line with the age of heterosexual consent.)

To paraphrase our president: Who knew that history was so complicated?

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What is the Basic Unit of Society?

There is an age old debate over what the basic unit of society should be. Is it more important to protect the interests of the community or of the individual? Should we, for example, require all of our citizens to be of the same religion, to have the same sexual orientation, to participate in the same rituals, to speak the same language? Can we require people to conform in the name of social cohesion or should individual rights take precedence? This is the old liberal/conservative split.

It occurred to me, while watching news about the confirmation hearings for Neil Gorsuch, that there is a small, but powerful faction (because they are aligned with those who have money) that now views another entity as the basic unit of society which needs protection–the corporation.

Social science author F.S. Michaels has argued that we live in a Monoculture, with an economic framework for understanding what it means to be human in the world. “In our time, in the early decades of the twenty-first century, the monoculture isn’t about science, machines and mathematics, or about religion and superstition. In our time, the monoculture is economic.”

In the economic monoculture we live and participate in markets and see ourselves as consumers rather than citizens. Citizens have duties to one another. Consumers go shopping and have choices. In a society based on religion, gods are the main forces driving everything. In a society based on economics, the corporation is the driver.

Corporations transcend communities and even national borders. This puts them outside the old community/individual split. In the economic monoculture, both individuals and communities, even nations, must put aside their own needs for the greater good of economic growth. The market is expected, as the gods and monarchs were in days of old, to provide well-being for the general population.

In this clip Senator Al Franken questions Supreme Court Nominee Neil Gorsuch about the case of Alphonse Maddin a truck driver employed by TransAm Trucking of Olathe, Kansas. On a day when the temperature fell to -27 F, the brakes on Maddin’s trailer failed. He waited for TransAm to send a repair unit. After three hours, they had not arrived. The heater in the cabin was not working. The temperature fell to -7 and Maddin found, in his words, “I could not feel my feet, my skin was burning and cracking, my speech was slurred, and I was having trouble breathing.” Still his employer urged him to wait. Believing he might die, Maddin ventured out into the cold to lock the trailer, then unhook it from his cabin so he could drive to safety. He later returned and finished his job, but he was fired anyway for leaving the trailer.

Maddin sued for wrongful termination. He won his case, but TransAm Trucking appealed, and the case was argued before the federal 10th Circuit Court of Appeals. Among the three judges hearing the case was Neil Gorsuch. Of the seven justices who heard the case over its years winding through the courts, only Gorsuch sided with TransAm. Gorsuch’s dissent did not cost Maddin his case, but it was popular with the business community.

There is one tangential point that I wanted to make, as we have been talking about the meaning of compassion.  In this exchange with Franken, Gorsuch insists he has empathy for Maddin. Empathy means to understand the feelings of another person, to put yourself in his place.  Even as he pleads “empathy,” he continually dodges the question of what he would do in Maddin’s position. (Maddin is African-American and it is possible that Gorsuch subconsciously believes that he was not actually in any real danger, wrongly assuming as even many medical students apparently do, that Black people actually feel less pain.)

Putting that aside, what Gorsuch appears to fundamentally believe is that employees have the duty to be obedient to their employers, even to the point of giving their lives in the service of the “job creator”. This is what a nation asks of citizens who are drafted into wars. In that case, the citizen sacrifices to preserve the nation. In the Gorsuch case the employee sacrifices to preserve the corporation.

This makes a certain sense, perhaps, if the market, not the nation or community, is viewed as the primary organizing principle of society.

“Regulations” vs. “Laws”

Our new Congress is ready to get to work eliminating regulations, which, they believe stand in the way of a healthy economy by placing burdens on business. The president has even proposed eliminating all regulations through an exponential process in which the passage of any new regulation would require the elimination of two other regulations. “We want to create some guidelines for self-driving cars, so do you want to allow glass in your food or to get rid of the codes that ensure bridges don’t fall down?”

“Regulations” in our current political climate are almost always presented as bad, whereas “laws” are good. It is often the same candidate who runs on a platform of law and order and eliminating regulations. Yet on their most basic level, laws and regulations are the same thing. They are guidelines that set the boundaries of how we are to live together as citizens. In common parlance, if you have a coal company and you want to dump your coal dust in local waterways, there is a regulation about that.  If you want to stand at the edge of a public pool and piss into it, you are violating the law. (Congress is sympathetic to one of these uses of shared water. Can you guess which one?)

Whether a it is called regulation or a law, it is an instruction that limits certain behaviors by imposing a penalty that is socially enforced by courts and police. By their nature, they stand in the way of someone’s interests in balance of the interests of others. Having a speed limit means that we can’t get where we’re going as fast as we’d like, but we’re less likely to have fatal road accidents. If you have a nearby park and would like to use it to swim naked in the fountain you will be thwarted by law. Now frolicking naked is a perfectly legitimate way to spend an afternoon, and people who want to pic nic without seeing your bare behind just have a competing way they’d like to use the space, but legislators decided that there are probably more people who want parks without nudity than those that do and the only way to be sure that this happens is to make it a law.

Regulations work the same way. It may be cheaper for a company to create a workplace where, occasionally a laborer falls into a shredder than to install safety devices. Yet we’ve decided as a society that protecting the life of the laborer should outweigh the inconvenience and cost to the employer and we legislated accordingly.

Talking about being tough on “crime” (breaking the law) while wanting to eliminate “regulations” generally speaking protects the interests of one social class over another. It is a law that the poor person cannot steal from a store. It is a regulation that the store has to give its employees reasonable work hours, breaks and overtime pay. In both cases, there is an entity that is harmed. The owner of the store is harmed by theft. The employee is harmed by being required to put in unpaid overtime. The financial value of these two infractions could be equal if the shoplifter can lift a lot of big screen TVs, but the value of the underpayment is likely to be more. If you’re tough on the crime of theft and think it should be up to the business owner to determine what is fair, you are siding with the store owner in each case. The philosophy behind this seems to be that the person who owns a business is by virtue of his social status to be trusted, whereas everyday workers and citizens need to have their behavior controlled.

In July 2015, when the Americans with Disabilities Act was celebrating its 25th anniversary, the New Republic wondered if there was any chance it would be passed today. It was signed into law by George W. Bush, but, Brian Beutler wrote, “these protections are the products of a lost era in which Republican politics didn’t reactively foreclose the idea of using federal power in service of the common good.” He concluded that if the ADA did not already exist, we would not get it.

Laws and regulations are restrictions and they can make sense or not. (Example: the Alabama law that says you can’t wear a fake mustache that makes people laugh in church.) Society is not static, and it makes sense to revisit our laws and regulations from time to time. In the UK, for example, they just posthumously pardoned thousands of gay men who had been jailed for the crime of “gross indecency with another male person.” At the time, it seemed to the citizenry, that requiring sexual non-conformists to behave was a social good and that the cost to the individuals was outweighed by the need of the community to impose a heterosexual norm. There were some high profile cases that started to make people wonder if the benefits of conformity were really worth the cost to society of, say, cutting short the lives and careers of Alan Turing and Oscar Wilde. British society has decided not only to change the law, but to symbolically show they regret that they had ever written it. (Of course, the realization comes a bit late for the other men whose lives were torn apart and the friends and families who were hurt along with them.)

To talk about eliminating “regulations” in the abstract makes no sense. When it comes to regulations, the real question should be, who is inconvenienced or harmed by having or not having the regulation, how much, how effective is the regulation at protecting those it was designed to protect, is there a way to achieve that end that is less of a burden to other stakeholders. In short, what are the social costs of making (or keeping) a rule or not making a rule.