Why the Law Is So Perverse

Leo Katz's charming book Why the Law Is So Perverse explores various legal conundrums and puzzles: 

There are ideas that are preposterous on their face, and yet one is hard pressed to say why. This book is about such ideas.

Here is an example. Let us imagine a maverick legislator who advances a proposal for reforming our penal system, which he says will cut prison costs by 99 percent. What he would like to introduce, he says, is a system he refers to as "voluntary torture, but with the emphasis on voluntary." "The point of punishment is pain," he begins the speech in which he unveils his idea. "Without pain, there is neither deterrence nor retribution." Then he gets to the point: "If you think about it, prison is just one of many possible pain-delivery systems and unfortunately one of the most expensive. We could accomplish the same thing much more cheaply if instead of making a prisoner's life moderately painful for a prolonged period of time, which is what prison does, we made it intensely painful for a very short period of time: a lot of pain, but for a short duration-that should give us as much retribution and deterrence as before, but at a fraction of the cost."

Seeing the expression on your face, he adds: "I know, I know, you're going to say this is hardly new, and civilized countries have gotten beyond it. But my system is really very different from what we had in the Middle Ages: it is entirely voluntary. No one will be tortured unless he asks to be and unless we are sure that he is of sound mind and knows what he is doing. In other words, everyone will continue to have the option of serving his regular prison term, but whoever doesn't want to can opt for the torture alternative instead. And if you are wondering why anyone would opt for torture, my idea is that we make the torture alternative just slightly more attractive than the prison sentence. We will make it not quite long enough and not quite severe enough to be judged by most prisoners the exact equivalent of a long sentence. What we are offering them is a 'torture discount,' a little like the prepayment discount you get for paying your real estate taxes by a certain date. Although the discount is slight, prisoners will come to view torture much like a very painful medical procedure for curing paralysis-the paralysis of jail. The amount of deterrence and retribution we get out of the new system is virtually the same as before, but it will come so much more cheaply. Torture doesn't cost much; that's why they could afford it in the Middle Ages. As you can see, it's a win-win situation."

Is there anything wrong with this proposal? If there is, it isn't easy to say what. The system is voluntary. Society is a lot better off because it costs so little, and the prisoner is slightly better off because he gets the torture discount. That's why the legislator sees this as a win-win transaction. Despite all that, we would not dream of adopting it. Nor am I suggesting that we should. But there is something perverse here that requires explanation. We have the possibility of an all-round beneficial reform but are adamantly refusing to avail ourselves of it. Why?' In this book I seek to explain why the law is full of perversities of this kind: strange and counterintuitive features that one cannot justify but that one would not want to eliminate either. 

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Here are a few more examples:

(1) The law is replete with loopholes. No one seems to like them, but somehow they cannot be made to disappear. Why?

(2) The law answers almost every question in an either/or fashion: guilty or not guilty, liable or not liable. Either it's a contract or it's not. But reality is rarely that clear-cut. Why aren't there any in-between verdicts?

(3) There is a lot of conduct that we intensely dislike-ingratitude, for instance-but but refuse to make illegal. Why? There are ingrates who strike us as much worse than, say, a petty thief. We have no compunction about punishing petty thefts. Why not also ingratitude?

And so on. While Katz often exaggerates the perversity of his examples — which frequently wind up having rather logical explanations — his insights have wide applicability to social choice theory and especially voting theory. This book will make you a lot more circumspect about the merits of ranked choice voting.