Norms are not inviolable

Defending torture, censorship and human sacrifice

Why do we teach our kids not to lie, even when lying would be a whole lot easier? 

Why do we prohibit torture, even when it could potentially save lives ?

Why do we defend speech in instances where it’s clearly  bigoted and has no social value? 

In other words, why is it important to uphold norms or laws in instances where doing so might seem useless or even counterproductive ? Norms and rules - at least the ones we can defend - exist because their consistent application is necessary to produce desired outcomes. We recognize that in some instances, their application will result in suboptimal outcomes. But the long-term benefit, when applied consistently and across the board, more than offsets that. All else equal, there are two reasons to prefer a world governed by norms and rules as opposed to one with individuals and institutions engaged in relentless cost-benefit analyses when confronted with ethical or moral questions.

Both have to do with human psychology:

First, while rules and norms can be enforced externally through social sanctions and rewards they are internalized through habit. Habits are System 1 processes, as Kahneman calls them — they are quick, intuitive, and often operate below the level of conscious awareness; and once internalized, the behavior is replicated more or less effortlessly, without the need for deliberate analysis or decision-making. As a result, they can more reliably produce desired outcomes by regulating default behavior. For example, if we’re convinced that lying is bad 95% of the time, it’s easier and more idiot proof to teach kids that it’s wrong to lie instead of teaching them how to evaluate the costs and benefits of each lie. 

The second is that we can expect humans to be systematically incapable of objectivity when their self interest is subsumed within these cost-benefit calculations. We are skilled at fitting the data and arguments to arrive at predetermined conclusions that serve our self interest - i.e confirmation bias. Almost every cheater has a seemingly sound argument as to why confessing to their spouse would only hurt both parties. Every religious group can find reasons to argue why speech that particularly threatens their own sacred cows is not speech worth having in the public domain. 

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However, every norm has its limits. You might have a norm against lying but if Anne Frank is hiding in your basement, you have a responsibility to lie to the Nazis at your door. You can be pretty sure that you’re not acting out of self-interest, but are reacting to the enormity of the direct consequences of honesty in this local case. Society already recognizes that there are limits to even our most cherished and sacred principles  in some instances. Even Americans, the most strident defenders of free speech, won’t support your right to rile up a bloodthirsty mob. 

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We can ask ourselves the question: What makes it more or less okay to violate norms? My answer as a utilitarian is near tautological - when you can justify net effects (after pricing in the uncertainty and second order effects) of the norm violation. A more intuitive frame is to consider the ratio of first order consequences to second order consequences. The numerator captures the direct effects of a particular instance of norm violation. The denominator captures the indirect effect of this particular norm violation through the increased expectation of future norm violations (also known as the slippery slope). If this ratio has a negative sign and high absolute value, it points in the direction of increased permissiveness (away from the norm) and a negative sign and low absolute value points in the direction of increased adherence to the norm. In fact, at the limit, with a high enough (negative) ratio, one can find moral justifications for breaking all sorts of norms and laws. 

In case fractional calculations in word form aren’t very helpful, consider a few examples:

Assume you live in a country where torture (by the state) is prohibited. Assume we know that torture is only effective in eliciting accurate information about 10% of the time (of the times you could plausibly consider it). If you believe torturing someone is as bad as killing them, then you’d be justified in torturing someone (on a  purely utilitarian basis), if you believed the intelligence you’d gather via torture saves ten lives in expectation.

Perhaps we’re not pure utilitarians and believe there’s something particularly pernicious about torturing an innocent person, such that saving ten lives still won’t justify it. More importantly, we don’t want law enforcement or anyone else making this calculus because it’s all too easy to get the numbers conveniently wrong , especially while operating under intense stress and fear, such that we end up torturing too many innocent people with little to show for it. 

If the FBI told you they strongly suspect a terrorist attack next month that could kill dozens; and that they believe torturing a suspect might help pre-empt the attack, the citizenry might say something like this: 

“No, thank you, we’ll roll the dice. Not only is there a reasonable chance that you’re wrong, it’s important that we don’t violate the norm even if you do happen to be right in this instance, because it sets a precedent that makes torture a more frequent practise, which we believe has negative expected value for society. “

In other words, the estimated second order effects (normalization of torture) are large and negative while the estimated first order effects (probable deaths of a few people) while tragic, is a price we have to pay to live in a free, compassionate  society.

But what if the FBI learned of a biological attack  that could kill tens of millions of people in the next few weeks. Should the FBI, after exhausting other avenues, consider torturing members of this extremist group that they suspect have information? Maybe - I can’t unequivocally say no. At the limit,  would we approve of torture to mitigate against a 99% chance of human extinction. We sure would. (Note: Some Kantians would never consider it, under any circumstances. I’m not going to convince them to change their entire moral philosophy in this piece, and they’re just wrong)

Notice how as we increase the magnitude of the first order consequences while the second order consequences remain fixed, our willingness to violate norms rationally increases. In the extreme final case  the second order consequences become almost meaningless, given the high likelihood of total extinction. What is the benefit of adherence to human rights in a world with no people and no future? Or similarly, of upholding free speech in a society that is on the verge of being overrun by religious zealots. 

However, free speech brings us to a very different case study. Consider the First Amendment in the United States - which basically protects all forms of speech except direct incitement to violence. You may or may not agree with this so-called absolutist position on free speech but when viewed within this framework, the argument for its particular sacredness becomes clearer

Words can hurt but they’re certainly not violence, given one isn’t condemned to passively accept the injury the perpetrator intended to inflict. We’re used to thinking about the intentions that motivate speech acts. Few will refute that jokes ought to be treated differently from sermons from the pulpit. But this subjectivity is equally applicable on the receiver’s end. Offence is contingent on one’s upbringing, world view, values and psychology. I’ve had the privilege of witnessing a hateful tirade against Indians and while it wasn’t pleasant as it happened,  such distasteful speech mostly makes for an interesting anecdote and serves as an object of collective scorn in free societies. Even if some people may fail to inoculate their own mental health against distasteful public speech, we can’t make public policy based on entirely subjective harms.

When it doesn’t directly lead to violence, an act of hate speech is at best, laughably distasteful, and at worst complicit in normalizing hateful ideology that could turn out to inspire real violence. However, we’re stuck with the fact that we can’t ex-ante predict with high certainty which ideas will breed progressively worse ideas and eventually lead to violence. 

This brings us to second order effects of censoring speech. Since speech is context dependent and processed subjectively, we will always have people interested in suppressing speech they disagree with. But in real time it is generally not possible to distinguish speech that results in moral progress from speech that births a new fascist ideology. The fact that some people consider a given statement hate speech while others consider it “the Truth” (like Elon) makes the subjectivity of this designation obvious. Since speech is integral to political action and moral progress, this is a case where we can justify a lower ratio of first order effects (subjective, temporary psychological harms) to second order effects (accidentally foreclosing the future of important ideas).

Notice two things. Once the harms become more immediate and tangible, like in the case of incitement to violence, our initial intuitions to privilege the second order consequences are once again overridden. We’re all consequentialists of some form. More interestingly, even within the western world, some countries draw the line well before incitement to violence. This points to uncertainty and difference of opinion over each society’s ability to identify and suppress specific types of speech that are deemed net negative, without suppressing legitimate speech in the future. Societies disagree over the existence of a slippery slope. If you reject the slippery slope, you think there’s a discernible and communicable difference between the speech act you’re sanctioning and other forms of legitimate speech.

This example might make it clearer. “All lives are equally valuable”. Whether you like to admit it or not, this is not so much a fact as it’s an exceptionally useful norm about what societies should believe and use as a basis for moral and legal calculations. In fact, its centrality to liberal societies is such that even questioning its factuality can itself be a norm violation. Yet, in an emergency, we would happily sacrifice thousands of people like me if it meant saving Joe Biden’s life. Now you could argue that it’s because he in turn affects many more lives; but that’s precisely the point. His life is worth more because he is different and more crucially, it’s easy to articulate why he’s different. There’s no slippery slope that starts at privileging Joe Biden and ends at privileging white people in general, because it’s clear why he’s an exception.

Laws and good norms should almost never be violated. But you could end up as a moral monster if you’re never willing to violate them, especially if the situation you’re faced with has two features: high stakes relative to long-run consequences of norm violation and a morally salient reason as to why this time - it truly is different.