Citizen arbitration: an utopian suggestion

This is the third part of a series examining the morality of the behaviour of groups, corporations and governments. The first two talk about the Psychology of tribes, and Meme systems and category mistakes. This time I’m really going out on a limb, making a suggestion about what could be done to balance the power of groups with that of individuals, and making treating one another well integral to the way society functions.

The Morality of Groups: A mechanism for balancing power, freedom, and kindness.

0. Introduction.

Howard and Michelle Carpenter and their property in rural Tasmania were accidentally sprayed with the insecticide Atrazine when a helicopter contractor under hire from the Gunns timber company strayed from a neighbouring plantation. The incident follows other complaints of water contamination and the chemical is known to be a carcinogen although safe levels are in dispute. [The actual story is here.]

A scenario of dispute resolution:

Gunns managing director John Gay, the contractor, and the Carpenters agree to arbitration of the dispute at seriousness level 5, as some physical harm may be involved and the possibility of the result’s implications for Tasmania-wide spraying practices could cause moderately great financial losses by the company. After an advertising period five arbitrators are chosen at random from the twenty who apply with sufficient rating for the dispute. Gunns bring forward evidence from their tests of water in the area that Atrazine contamination is low. Blood tests from the Carpenters show levels which the Australian Medical Association rate as being of concern. At this point three of the arbitrators propose a solution involving a cash payment by Gunns to cover immediate medical expenses and hardship, and a promise to cover future medical bills should some health outcome in the future seem reasonably to be linked to this incident. One of the other arbitrators has been concerned at the process and asks for a disclosure of financial links between arbitrators and Gunns, and it comes to light that one arbitrator has been a paid forestry consultant for Gunns in the past and another has several close family members who work for Gunns. The first is ruled out with serious penalty to his arbitration rating, and the second voluntarily withdraws from the process without penalty. Gunns argues unsuccessfully that arbitrators who are opposed to logging in Tasmania should rule themselves out of the process. This last dispute is adjorned to separate arbitration for review. All these events cause concern in the conversation boards, and a very highly rated arbitrator, Dr Dee, volunteers to join the case. Although housebound he has authority to decrypt company files, and discovers that Gunns had supressed reports of the toxicity of Atrazine. A compromise is reached: Gunns will cover any medical expenses related to Atrazine from the point where they should reasonably have been able to determine that is was more toxic than first thought. The arbitration rating of John Gay and several company scientists falls to the point where they are not considered sufficiently responsible to hold most positions of trust within the community, including the post of company director. Atrazine will only be sprayed at some distance from watersheds which are used for human drinking water, and the effect of wildlife in other areas will be monitored at company expense. The helicopter contractor apologises to the Carpenters for not notifying them when he first realized that he had strayed off Gunns’ land.

1. Overcoming Legalism.

Two thousand two hundred and twenty odd years ago the Qin overcame the warlords contesting northern China and formed a state based on a strict legal system. They burned books to stifle dissent and insisted on compliance by means of harsh and uniform penalties. The letter of the law was of highest importance. In this way they became to later generations a byword for tyranny, although they still have adherents – perhaps most commonly inadvertent.

Legalism tends to emphasize the punitive aspect of law designed to control a human nature seen as essentially evil and selfish. Positive law describes the rules for behavior laid down by the sovereign emperor, and violations often resulted in criminal liability, very often the death penalty. In Legalism, law is “an instrument of state power, imposed on people for their own good.” In the words of the leading Legalist, Han Fei: “Let the ruler apply the laws, and the greatest tigers will tremble; let him apply punishments, and the greatest tigers will grow docile. If laws and punishments are justly applied, then tigers will be transformed into men again and revert to their true form.” Although the harsh views of Legalism may well have helped to establish the Qin dynasty, they probably also contributed to its relatively brief life. The Qin emperors did not “rule with humanity and righteousness.” -Eric W. Orts

The reaction to this police state was fairly swift. Fifteen years later the Han dynasty (along with the Tang one of the “great dynasties” of Chinese history) supplanted the Qin and reinstated the idea of virtue rather than fear of punishment as a means of encouraging people to do good.

Li (social propriety) is the greatest principle of living. When society lives by li it moves smoothly. Confucius saw the embodiment of this society in the idealized form of feudalistic government, illustrated by the Five Relationships: kindness in the father, filial piety in the son; gentility in the eldest brother, humility and respect in the younger; righteousness behavior in the husband, obedience in the wife; humane consideration in elders, deference in juniors; benevolence in rulers, loyalty in ministers and subjects. … Just as li is the outward expression of the superior man, jen (goodness, humaneness, love) is the inner ideal. Confucius taught that men should love one another and practice respect and courtesy. … Confucius believed in the natural goodness or at least the natural perfectibility of man. He stressed government by virtue (Te) and the arts of peace (Wen). Since filial piety is the root of all virtue this concern for parental respect is seen in the veneration of age and ancestor worship. – Dr. Meredith Sprunger

Legalism must respond to every new offense with a new law, and because it is founded on man’s intrinsic evil it becomes increasingly intrusive, creating new offenses at each turn. Before long a police state finds itself defending the wealthy and powerful, who can make use of the legal system to their advantage, against the poor and powerless, who cannot. For these reasons I find it cruel and futile. Confucianism, on the other hand, suffers from a tendency to corruption and cronyism, because it is run by mandarins who are presumed to be virtuous but answerable only to one another.

So although the early twenty-first century finds mosts of the world living in a system of colonial corporate capitalism (in many ways similar to a feudal system), the west runs on an administrative and legal system which repeats many of the mistakes of Qin dynasty China. Confucianism is not the answer to this, but I think it contains the seeds of the answer when combined with the tools of the information age.

2. First Principles.

This is the beginnings of an attempt to propose a legal and administrative system which correct some of the failures of the current system — especially the imbalance between groups (such as corporations and government) which have power, resources, and access to the system, and those (particularly the poor and uneducated private individuals) who do not have these things. In doing this I want to start from the functions which we require of the system, since we’re starting from scratch.

  1. It should respect the autonomy of each human being. This is essentially the right of the individual to life, liberty and the pursuit of happiness. The right of each person to as much freedom as does not harm others or impinge on their freedom. Autonomy includes the right to privacy and self-determination.
  2. Along with the right to one’s own freedom goes the responsibility for the welfare of others. How to balance these competing demands becomes a personal moral choice and a collective decision. This balance is in my mind the basis of the social contract: we give up an agreed level of personal freedom in order to work together to the benefit of the individuals making up the group.

Any attempt to enforce this balance by legalistic means is doomed to failure, because it destroys autonomy, privacy, and even takes away the benefits of acceptance of responsibility, which when enforced becomes fear of consequences rather than a duty of kindness. On the other hand without a method of restraining the power of those who cheat the system or band together to gain advantage within it, we are soon reduced to the unrestrained greed of the robber barons and warlords. Very much the direction rapacious “free market” is taking us now: third world workers on a dollar a day making clothes for the rich to wear once; corporations fighting over increasingly scarce resources while ignoring the fact that the ship is sinking.

So we must encourage people to work within the system by means other than fear of retribution. Ideally people would choose to contribute to the system because they wished to see it succeed, but suffer no penalties for not doing so other than not gaining the benefits of the system. Granting autonomy this way must however be balanced by restraints on harm to others. True autonomy in fact only exists when a person is responsible not just for his or her own actions but for how those actions affect others, and this includes both actions taken and actions not taken. For example it is my responsibility to prevent my dog from biting someone and to insist as far as I can that the company in which I own shares does not pollute a river. In this way any legal/administrative system must hold people accountable for their actions and prevent or encourage people as far as possible not to act in ways which harm others – if only because each member of that system has partial responsibility for the harm if they do not attempt to prevent it.

3. Guidelines Not Rules.

Our system, pretty much throughout the world, is prescriptive: we set down a series of rules which are intended to encompass all possibilities. In order to interperet and enforce them we have lawyers, trained to understand the meaning of these rules, how they have been enforced in the past, and how they interact with one another. It’s incredibly complex because it’s like trying to train rats by putting more and more walls into a box until they’re left with a maze which leads them where we want them to go. It’s also terribly inefficient and unsuccessful, because disputes instantly become not “what should we do?” but “what did the maker of the law intend this wording to mean?”

Much better to explain to the rats that the food is that-a-way and let them work out as they go along how best to get there. When we’ve given up the idea of retribution, then instead of arguing about where we went wrong who was to blame and how large the punishment should be, we can focus on how to prevent it happening again and how to fix it. It’s blindingly obvious once you’ve made the paradigm shift and given up the paranoia about people exploiting the system – we need to build a system that’s hard to exploit, but let’s cross that bridge when we come to it.

Actually value based guidelines are much better than rules in every way.

  • They’re easier to agree on, because we can generally come up with a clear picture of what we want to achieve.
  • We engage the problem solving abilities of the people involved in the problem, rather than requiring that administrators have forseen everything. This is much more flexible and doesn’t waste energy on problems which never arise, but it requires putting faith in the people on the spot rather than trying to control all the details. That takes some getting used to but it’s great, because everyone starts caring about the stuff they are responsible for making work, so you get the best out of everyone involved. And if they come up with ideas the bosses don’t agree with, relax. It’s usually as good, often it’s better, and not it can be fixed.
  • There’s no such thing as obeying the letter of the law but not it’s spirit. Sharp dealing is cheating within the system – but it’s still cheating. By specifying values and outcomes rather than boundaries, people try to act fairly rather than pushing to the limit of what they can get away with.
  • People and groups with more resources and power are encouraged to be generous towards those with less, because the system is based on a human interpretation of what is fair rather than a mechanical interpretation of a pre-written rule.

4. Arbitrators.

But of course people have self interest, and it’s not easy to see another’s point of view in the middle of a dispute. So we need people not involved who can look at the dispute and help to resolve it. They must be impartial and uphold a set of values which have been previously agreed to by society as a whole. To some extent they may need to trespass on the right to privacy of the individuals involved in the dispute (a right arising out of the principle of autonomy). Who should these arbitrators be? If they are chosen as a result of a system of imperial examinations which test their understanding of the principles on which society’s agreed values are based then we have effectively a Confucian system, with its attendant disadvantages.

Here is the skeleton of what I believe is a better mechanism for arbitration – bear with me, because it’s a technical system but it won’t start to fall together until I’ve explained quite a lot more about the whole thing:

  • Everyone who has the time should have the opportunity to participate in the arbitration system. In this way everyone takes responsibility for the functioning of society, and there is an ongoing universal dialogue on the common values which are agreed and how they should be applied. In the end I think the basic understanding of the value system should be taught in school, but to begin with it can be like a drivers licence – after undergoing a training period and passing a test which proves that the concepts are understood, then a person is entitled to become involved in the arbitration process. It is very important, however, that there be a process by which the agreed values are discussed and tinkered with, so that they can evolve over time.
  • To allow people to become involved economically, there should be a small payment for involvement, increasing somewhat for more onerous involvement in complex disputes which involve investigation rather than simply decision making.
  • Most simple disputes will rely on the internet as a medium for communication. For this reason records must be kept wherever possible in computer accessible form, with appropriate encryption for privacy, and people must be able to authenticate themselves in all transactions, so that the players can be properly identified. None of this is technically difficult in the west with current methods.
  • Disputes have different levels. A murder investigation needs more careful arbitration than a dispute about property tax. The easiest way to decide this is by using a series of general guidelines, and then allowing anyone involved in a dispute to escalate it if they feel it is more serious than its current level. In this way an arbitration can be assigned a level from, say, one to ten.
  • In the same way arbitrators (everyone with the basic training, ie: most of the adult population who can be bothered), have a rating. This rating is modified by most interactions with the arbitration system. For example successfully bringing the parties in a dispute to a mutually agreed compromise might increase rating. Making recommendations which are overruled by a majority of other arbitrators in a dispute could decrease rating, because it might suggest a misunderstanding of the societal value system. By the way arbitrators, like anyone else are free to hold whatever values they like, but in their actions as arbitrators they are required to represent the agreed values of the community.
  • The purpose of the rating system is to train and evaluate arbitrators, in the course of carrying out their role, so that arbitrators who are active, able, and proven to accurately represent the values laid down (ie: those who have gained a high rating) can choose to take the task of arbitrating high level disputes. There should be higher pay as an incentive, and at high levels arbitration can become a career. This is especially the case because high level arbitrators need to have the power to investigate complaints or even instigate investigations on their own behalf.
  • Most importantly arbitrators do not decide things alone. Decisions should be made by at least three and usually more like five arbitrators in important cases. Arbitrators need to be disinterested parties, and there must be mechanisms to check that that is the case. It’s also important that the same arbitrators do not operate on disputes involving a particular individual more than once, if possible.
  • The aim is to reach a concensus, to educate, and to find a solution – not to punish. Sanctions for minor matters should be a matter of restitution rather than penalty. Nevertheless society must protect its members from harm, and so there must be mechanisms of rehabilitation and where these are not successful or not likely to be successful there must be means of safeguard. I’m not impressed with the notion that prisons do a good job of this, but then there has been little attempt to find better ways because people have been so fixated on punishment.
  • The police, by the way, would become more like security guards working in cooperation with investigatory arbitrators. Simply leaving out “victimless” crimes instantly lowers their workload greatly anyway.

Perhaps there’s a way to put this all more simply? Anyway if you’re still with me perhaps a summary:

5. Overview.

Society engages in an ongoing dialogue to decide a set of agreed values on which interpersonal relationships should function. These must be based on the primacy of respect for the autonomy of each person, and the flipside of this: responsibility for the welfare of others. My suggestion is that the system of values be based on values: honesty, compassion, generosity, fairness, tolerance, and courage, for example.

In place of the legal system and a great deal of the bureaucracy, a system of citizen arbitration based on advancement by merit and collegial decision making is used to uphold the agreed value system. Concensus and problem solving rather than retribution. Extensive use of the internet to keep records, authenticate, maintain the highest levels of privacy possible consistent with openness public examination of decision making.

6. Balancing the Power of Individuals and Groups.

This imbalance of power, as described in Psychology of tribes, and Meme systems and category mistakes, is in my opinion the greatest problem in western society. People working for corporations and governments tend to be rewarded for actions which advantage these groups, often to the disadvantage of individuals in the community, the environment, and the world as a whole. A system based on economics and legalism advantages those with wealth and access to resources, which means that it favours groups over individuals.

Technical advances in communication make it possible to give control of decisions back to individuals in a way which does not make the relative access to resources important, in theory. By recording a history of the degree of expression of agreed values in public interpersonal relations, the legal system is removed as a tool of the powerful and individuals even when acting as representatives of a group are held responsible and accountable for their actions. My hope is that this mechanism changes relations between people from an economic basis to one based on agreed values.

7. Can It Work?

I’m not sure it even make sense. This is a thinking document, a first draft to help me think things through, generate discussion and comment, and so on. Having had it crystalize in my head over the last few days after mulling over the problem for a year or more, I’m up too close to it to have any perspective just now. I’d appreciate any thoughts you might have, and in the mean time I’ll leave it be and edit it from time to time.

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