Robin:

Hello Agnes!

Agnes:

Howdy.

Robin:

Well, in this session, I’m going to pitch.

Agnes:

Okay.

Robin:

I’m going to try to argue for a social reform, a pretty big one—pretty wide scope. And I would like to try to set the ground rules, but of course you’re happy to challenge— welcome to challenge them.

Agnes:

Okay.

Robin:

So the idea here is that I’m going to describe some part of the world and propose changing that, and by implication propose not to change everything else. I’m going to give a reason why what we have now in that space isn’t good, or isn’t the best, and then describe a different thing we could do there, and then describe why that might be better.
But of course I don’t mean for us to go out and immediately adopt this. I mean for us to think about it a bit more, and then, if we still like it, do smaller-scale trials in small jurisdictions, or for a more narrow range of topics. And then observe how well that seems to go, with an eye to the problems we imagined we might have to worry about, so that then we could go on a path to perhaps eventually adopting it more widely.
So that’s the kind of venture I’m intending to do here. And you’re not necessarily an expert in the things I’m telling you about, but you are smart and perceptive. So I hope the reader can— listener can see you as standing in for their skepticism and doubts and concerns. And I don’t need a full endorsement of this at the end, I’m okay with—

Agnes:

[Laughs] That’s not one of the ground rules, that I have to provide that in the end?

Robin:

[Laughs] No, no.

Agnes:

Okay! [Laughs]

Robin:

I’m okay with you just standing in for them, as like wondering about this and having doubts and trying to explore them.

Agnes:

Okay.

Robin:

All right. So, the topic is criminal law. So we have large societies, we do many things together. We coordinate some of those things through law, sometimes similar— other similar things we coordinate through social norms that are more informal. But law is one of the things we do.
Within law we have a variety of areas, but one of the areas is criminal law. And criminal law turns out to be a relatively recent innovation in the sense of the last few centuries, because in prior societies, criminal law was more dealt with like all the rest of law.
And the distinguishing features I would point out about criminal law are that instead of punishing them through fines, which is the usual way we punish most things in the rest of law, they are punished more often with jail or murder—or you know, execution or exile or other extreme things like that.

Agnes:

Wait—is exile one of our punishments?

Robin:

It has been in history.

Agnes:

Oh, okay.

Robin:

So it’s in the class of things you might do instead of a fine.

Agnes:

Okay.

Robin:

And in addition we pay government employees to go out and pursue and prosecute crimes, whereas for most of the rest of the law it’s the victim who’s tasked with collecting evidence and making a complaint and hiring a lawyer to prosecute it, and then they will get money if they are found to be correct.
So criminal law, I would say here, has a number of big problems. And I’m going to try to propose a solution to avoid and fix some of those problems. But first we want to ask, Why do we have criminal law at all? What’s the point? And so one key idea is that sometimes some people will specialize in trying to avoid the law. So most legal disputes in history, for most people, are legal disputes that occurred among people who are interacting with each other in, you know, in the usual ways, through social connections and relationships where they basically are somewhat cooperative and, you know, know each other and have reputations, etc.
And then something goes wrong. Like your neighbor’s tree falls on your yard, and then you have to sue your neighbor, but otherwise you had good relationships with your neighbor, and you have a neighborhood that you share. So in these situations they’re not going to run away in the middle of the night, because, you know, their house is next to yours and you have ways to find out things about them by all your shared connections to collect evidence about them.
And you have ways to like bring them in front of a court, and tell the court where they live, that sort of thing. And so, enforcing the law is much easier in this context where you have all these positive relationships in your usual social world, and just something goes wrong.
But sometimes in history, people have specialized in trying to predate on people—take advantage of people—and then do everything they can to avoid the law. To hide from the law. So think of a robber on the road. A robber on the road, you are traveling from one town to another, they sneak up to you, they demand your money, etc., and then they run away. And they’re trying to make it really hard to enforce the law against them.
How do you find them? Even if you did find them, how do you, like, get to them—maybe they’ve got a whole gang that protects them? Even if you’ve got to them, could you get any assets out of them? Maybe they would just say, “I don’t have any money.” So the court, you know, will just say, “Sorry.” And they’re just trying to do everything possible to make it hard to enforce the law.
Now in the past the law had some ways to crank up its abilities to try as best as possible to deal with these hard cases. So one of them was selling people into slavery. They say, I have no money, you say, Well then we’re going to auction you off as a slave, and that revenue will be used to pay your fine. So that made it a credible threat that we could punish you if we caught you and found you guilty.
Another thing we did was we had co-liability, in the sense that we might go to your family and say, You know, this person has done this thing—we can’t even catch them. They’re on the run. But we know they’re your relatives, so we’re going to take it out of you. And if you cared about your family, you might care about that sort of outcome.
So these are some of the things we tried to do to crank up the penalties on people like bandits. In the last few hundred years we’ve had the problem getting worse, and we’ve taken away some of these solutions. So we no longer sell people into slavery to pay off their legal debts, and we no longer take the money out of your family, and people are like now really dense and mixed up in ways that makes them easy to slip into a crowd and run away. Which makes it easier for them to commit crimes, and in fact crimes are famously more common in big dense cities where people can more easily slip away.
So in all the contexts, that’s part of why we introduced this new criminal law system. We said, Look, the usual system of people having to pay for the investigation themselves and go take them to court and get money, that’s just not working. We need another solution. And so they introduced government police, government prosecutors, and government punishment. That is, we decided even if we catch you and we find you guilty, you don’t have fines to pay, so we put you in jail, we torture you, we exile you, we kill you, something.
And so these— This theory explains sort of the key distinctive features of criminal law, and why it’s different from the rest of law, and why it’s a recent innovation. Okay. So it sounds pretty good, right? So now, what’s wrong with criminal law? Well, one thing that’s wrong with criminal law is that police can be relatively easily corrupted. In particular they can create a blue wall of silence where they protect each other.
So now, you know, who— if a police commits a crime, who is supposed to investigate them? Why, other police! What if police decide among themselves to not prosecute each other—to let each other get away with things? Especially in the pursuit of their supposed job, right? So police are often willing to say, Well, you did this illegal thing that’s technically a crime, but you did it in the pursuit of your job that I share with you and the goals that I share with you as a policeman, and I’m going to therefore let you off.
And you know, in addition we have a whole bunch of people who’d let you off, basically. So you know, somebody could not report the crime, but then the policeman who is there to sort of take data of the crime, they might just not do a very good job, or file it away and not make it a priority. Or the police department could make it a priority and investigate it, and if they choose to investigate it, then, you know, get evidence, and then they might pass it on to the prosecutor who can choose not to pursue it and not to sue on it.
And so a lot of people can veto any particular enforcement of criminal law. You as the victims, say, have no ability to make them go all the way through this path. And so it also means the priorities of the police are opaque. So you know, we pay the police in this setup and we give them a list of crimes, and we say, You’re supposed to be enforcing all these crimes. But they need to know, okay, which crimes are the important ones, and in particular which people are the important people as victims, and which neighborhoods are the important neighborhoods? And we pretend like, Oh, all the neighborhoods are equally important, and all the crimes are equally important.
But we— they know that’s not true. And they take political signals from the mayor, etc., about what are the priorities, and so then some neighborhoods can just get a lot less help. And some crimes get a lot, and some people get a lot less help because the police, having a sort of political backer who has to try to win elections, basically uses politics to decide who gets how protected.
Furthermore a whole bunch of choices we make here are not only politicized; they are just very sensitive and awkward decisions that we make collectively. So we have to decide like when you’re allowed to pull somebody over, what sort of indicators are acceptable, to look at what kind of evidence, what kind of standards there are for when they can look at your phone records, when they can look at your email…
We have to decide also what’s cruel punishment. Like is torture okay? Is torture not okay? Are jails where the floors are dirty okay, or do the floors have to be clean? How much sunlight has to come in? We have just all these choices we have to make about what is an acceptable jail, what’s an acceptable term, you know, are visitors allowed to come, can we charge you for phone usage? We’re just making a whole bunch of collective choices about how to run prisons, and how to punish people when we don’t use prisons, that are just choices that we all feel sensitive about and that, you know, we could think are immoral choices, or inadequate choices.
And in fact most constitutional law issues—i.e., when we say we’ve got a constitution but there’s these ambiguities, and how do we settle these ambiguities, and then we think of—most of them are about how-to-enforce criminal law, and how-to-punish criminal law. That shows you just how sensitive all these decisions are.
And so the challenge here is to find a different approach that will both be more effective at finding criminal law violations, and give better incentives to find all the violations (and not just the one the mayor likes, or that the police feel like enforcing). And to actually, you know, discourage people from committing these crimes and make sure they’re caught without getting us all involved in all these very personal, very fraught choices about punishment.
So that’s my setup here. A long speech—it’s longer than I usually have. Sorry, but that’s the setup of the problem here.

Agnes:

Okay. Got it.

Robin:

Okay, no questions or comments about this at this point?

Agnes:

Nope.

Robin:

All right. So a key diagnosis here is to say, Well, what we want: First of all, we want to decide what the crimes are, right? And so my proposal won’t change what are the crimes. And we may make bad choices about that, right? So there’ll be some definition of crimes, and for each crime we want to set two parameters: One is how strongly we discourage it—that is, how much we make people try not to make it happen, avoid it—and the other is how eagerly we try to detect it to make sure that if it does happen we find it.
So we want a system that we can turn those two knobs differently on each different crime. And we can— You want to imagine you can vary these a lot: You could vary the knobs by the age of the victim, or the neighborhood, or you know, whatever else you want. But you have these knobs for a lot of different crimes and for a lot of, you know, different things that are illegal.
And we’re gonna imagine, again, keeping the court process the same. So you know, when somebody accuses somebody of a crime they’re going to have to go to court and present evidence, and that process of considering the evidence and presenting it, etc., it’s going to be done exactly the same. So there’s gonna be a judge in charge, and the judge can use their discretion, etc., and makes a decision. So we’re not going to change deciding what the crimes are, we’re not going to change how we decide if any one accusation is correct…

Agnes:

Could I just ask you a question about that?

Robin:

Sure.

Agnes:

What is it that makes you think that that second thing, the court process and the incentives involved in it, are less in need of reform…

Robin:

Oh, nothing in particular, it’s just that every proposal needs to have a limited amount of scope.

Agnes:

Okay, go ahead.

Robin:

So I’m choosing to— I’m actually making a pretty big change here.

Agnes:

Right, right. I was just asking why—

Robin:

But I want to make it not infinite— to try to cut it—

Agnes:

Yeah.

Robin:

And I have ideas for— anything else here that I’m proposing to change, I do have thoughts about how it might be interesting to change them.

Agnes:

Got it.

Robin:

But here I’m gonna like draw my line there and say, We’re not going to change that.

Agnes:

Okay.

Robin:

Okay. So what I want to change then is, once these parameters are set—how much to discourage a crime and how much to detect it—I want a different process that will sit in there to go out and look for crimes, find them, attempt to prosecute them, and then once they’re found guilty, punish the guilty party. Those— I’m gonna change those things.
And the main thing I want to do is make these more private choices. I want to set it up so there’s a good incentive for people to make those choices privately so that we don’t have to: So that we no longer have to agonize over what’s a cruel punishment, or what’s an invasion of privacy, or whether jaywalking should be a higher priority. In terms of enforcement processes, you know, that’ll all be set in these other parameters.
And so I want to try to show you that you should think that this process will be cost-effective in the sense that I want to—the private parties who I’m going to put in charge now—I want them to have good, strong incentives to find the most cost-effective way to do these jobs. I need them to go detect each, you know, actual violation, and to punish it, to discourage someone from doing it.
So that’s— I mean, again, prelude before the proposal: I’m trying to set you up for what the goal here is and what the standards are. Any questions at this point?

Agnes:

No, keep going.

Robin:

Okay. So now we get to the proposal. So at the moment, on the road in the United States you are required to get automobile liability insurance. What that means is if you have an accident with somebody else and they sue you for having hurt them in their car, and they win, then you can’t say “I have no money, go away.” This liability insurance makes sure that an insurance company sits there ready to pay.
And there are rules about how much insurance you have to buy—like $100,000 or something like that, depends on the kind of thing and the state, etc. So that right there solves this big problem the criminal law had of making sure you can pay, which is why we went to prisons and torture and all those other sorts of things. This insurer can make sure to pay.
Now, that doesn’t help if the insurer has no powers over you. So with automobile liability insurance, for example, you can get a lower premium if you let them put a black box in your car that lets you record everywhere you go, and how fast you were going, and what roads you were on. And then they can not only charge you by the number of miles you went, but also decide whether you’re being risky in your driving style.

Agnes:

Oh really? That’s really a thing?

Robin:

That’s really a thing!

Agnes:

I didn’t know that.

Robin:

Okay. So that’s given them more options to discipline you. In addition, of course, if you have a high rate of having accidents then they would charge you a high premium. So your relationship with your insurer can discipline you to try to be careful even if you are not the one who finally pays, because you pay the premiums. And we’d like to give you and your insurers as many levers as possible to make this relationship work well, right? To find ways to help them discourage you from having auto accidents. They don’t want you to have auto accidents, you want to get places fast, and they want— you know, need to set up an incentive to get you to make that trade-off.
So we have that for automobile liability. Many people have suggested doing similar things like that for other kinds of things they don’t like. So for example, guns: A lot of people don’t like guns, and what they’ve said is, Well, you shouldn’t be allowed to just have a gun; you should be required to get gun liability insurance so that if your gun hurts anybody, or you hurt anybody with it, well now you can’t put up your hands and say “I don’t have any money to pay.”
And now your gun insurer will try to make sure you are careful with your gun: They will ask you to lock it, where do you keep it, how many do you have, where do you go to? You know, do you take your gun when you’re drunk? You know, things like that. And that might discipline your gun behavior.
And other people have wanted to say this about immigrants: They say, Why should we allow people to come in across the border who might be criminals and put us all at risk? They should be required to get immigrant liability insurance. That would ensure us that, you know, if they cause problems, that somebody will be there to pay, and then somebody will be there to say, No, this person shouldn’t come across the border because they’re in fact a criminal.
But you notice the pattern: People want to put this on things they don’t like. And so my proposal is to just have— require universal liability insurance, where you would just have to have insurance ready to pay for anything you do. Not just car accidents, not just guns, but any legal liability, the insurer is there, ready to pay. So that’s the first part of the proposal: Everybody must get an insurer. And I call that a voucher. And so vouching is intended to evoke this ancient concept where somebody vouches for you.
So think of an ancient town, and a stranger comes to town. Everybody wonders, Should I interact with the stranger? They could knife me and then run out of town, right? And then what can we do about it? And so what would happen is that a stranger coming to town will want to get somebody in town to vouch for them. Somebody to say, I stand with this person; if they cause problems, it’s on me. And now this person can come and interact with others.
And that’s an ancient, noble sort of relationship, and we have many versions of it today, like contractors must get bonded. And if you go on a military base somebody on the base must vouch for you to let you on the base, and then… We have this concept all over. So the idea is that this insurer is your voucher. They vouch for you. They really stand ready to say to everybody, If this person harms anyone, I’m ready to pay. But to make this workable we need them to get a lot of levers, so that they can, like the automobile insurer, like convince you to be a low risk.
So you’re going to have a voucher and you have to get somebody to pay for it. To be agreed to do it, you’re gonna have to pay them a premium to do that, and you’re trying to convince them to offer a low premium. And you and they together need to find a way to make that work.
So the key idea now is that first of all, punishment is chosen by you and your voucher. So I’ve said like if you’re guilty of robbing somebody, then there’s a fine, and the voucher will pay the fine—but what happens to you? Well, you and your voucher will get to decide that, and we are going to give you and your voucher a large degree of freedom about what goes wrong with you. But we’re going to give you all the usual things the government could have done because we seem to have thought that those might be effective.
So we’ll let them put you in a jail, we’ll let them, if— let them torture you, perhaps, if that would be allowed. Let them exile you, let them shame you and throw tomatoes in your face, or whatever you and them think might discourage you. You could agree to that, but now it’s about you and them both estimating that this will in fact be worth the cost—like all punishments are a cost.
Once the crime has happened, you might say, Well, what’s the point of the punishment? It’s just a further cost. But the idea is that the punishment is something you anticipate, and therefore, anticipating the punishment, it discourages you from doing things, encourages you to take care, and therefore, that’s why you punish.
So now we’re gonna say, You and your voucher can figure out what it is that would discourage you. And you know, if jail wouldn’t do it, then you won’t bother to do jail. And in addition, we’ll allow you to do— pick co-liability, so you and five friends could all decide to be liable together, so if any one of you rob somebody, all of you will get punished in the same way. And then you can watch out for each other, and you’re going to be careful for each other, because you’re all going to be liable. So just like with the family liability in the past, you can choose that for yourself.
And in addition you can even choose sort of your privacy rights. It’s a little more complicated, but basically, you know, you can decide how easily to allow investigators to read your emails, or what the standards are there. And you know, that could allow other people to be reassured of your being able to be caught if you were found guilty of something.
So this is the key proposal for vouching. The one thing I would add onto it, which is somewhat optional but I think it should go together, which is bounty hunters for enforcement. So the idea is that once every crime has this fine associated with it, we can also put a bounty associated with it. And now whoever goes out and collects the evidence to show that somebody was guilty of that, they get the bounty. And so now every crime has the two numbers, the fine and the bounty, and those are the two knobs I talked about being able to set for each crime.
And now, bounty hunters do not enforce a blue wall of silence, because if you’ve gone and investigated a crime and it turns out the criminal was a police, or another bounty hunter, you still want your money. You’re not going to let them go if you were hoping to get this bounty. And so we make it more required that people who break the law get caught.
Now, so here the discretion is going to go into setting the bounty and setting the fine, and perhaps judges making discretion in individual cases. So we’re taking away discretion that exists currently with police on the beat or with prosecutors, and we’re moving those discretions into setting these parameters and the judge.
And I have to admit right up front, one of the biggest problems with this proposal is it allows less hypocrisy. So today we can pretend that all neighborhoods are equal and the police are protecting them all the same, but we actually tell police behind the scenes that these neighborhoods are priorities. And here we couldn’t do that as easily. We would have to say explicitly, you know, crimes in this neighborhood have higher fines and bounties, and crimes in that neighborhood have lower fines and bounties.
And that’s the way we would get the more enforcement in some neighborhoods, and people wouldn’t like having to be honest about that. And people like hypocrisy, and you might say there’s virtues of hypocrisy, and this gets in the way.
So I think I’ve given you enough to work with here in the sense of I gave you a long speech (and thank you for listening), and now I want to defer to you and go with where you were thinking in terms of reacting to this.

Agnes:

So first let me just ask you about the car liability insurance case. So why doesn’t that ever devolve into the insurance company torturing you or whatever? [Laughs]

Robin:

We don’t allow it.

Agnes:

Okay.

Robin:

So in contract today, the kind of punishments that courts impose on criminals are not allowed as endpoints of contracts. You might have seen, once upon a time, that movie Fight Club. It’s about people having this club where they can have fist fights, because the law doesn’t allow them to have fist fights and they can’t sign a contract that lets them have these fights. The law won’t allow those sorts of contracts.

Agnes:

Right. So would it be like— So presumably there’s some people who don’t own or drive a car because they can’t afford the car insurance, right?

Robin:

Right.

Agnes:

And so would another way to sort of implement your proposal would be to suggest that we expand the scope of car insurance by allowing insurers— by allowing those people who couldn’t have afforded the insurance to allow themselves to be threatened with physical force?

Robin:

So that would be a small test.

Agnes:

Yeah.

Robin:

So again, I said initially what I want to do is then move towards smaller tests of this idea.

Agnes:

So that would be one way of testing it.

Robin:

One way of doing smaller tests is just to allow more kinds of punishment that your auto insurer might be able to inflict on you if you are guilty of an automobile accident, right?

Agnes:

Right.

Robin:

You know, whether or not you would agree to that is a different matter, but that would definitely be a small-scale version.

Agnes:

So I mean it seems to me like when I, you know— This is a very big proposal with many parts, and I guess my immediate response is to think, Well there’s a reason we don’t let the— the big difference between the car insurance case and this insurance, this thing you’re proposing, is the use of physical violence—including prison, you know, confinement—as a threat.
And so you know, one thing you might think is that what a state is (I can’t remember who said this, but…), you know, is a kind of monopoly on the legitimate use of certain kinds of force. Right? So that in effect if I try to use physical force on you to confine you, whatever, as a private citizen, that’s like, I’m not allowed to do that. Right?

Robin:

Not allowed to join Fight Club.

Agnes:

Exactly. Right? And so one thing that your proposal requires us to do is to re-conceive of the state—

Robin:

Yes.

Agnes:

—that it’s no longer…

Robin:

Or you can think of these vouchers as authorized by the state to do what they’re doing.

Agnes:

Right.

Robin:

So we often allow private parties to take on the power of the state to invoke force; it’s not always directly by state employees.

Agnes:

Right. So, right—because you might have a private prison or something, right?

Robin:

Right, for example.

Agnes:

So like say there was this, you know, voucher organization, whatever. That like they— I agreed with them that they could torture me if I did such and such, and I do such and such, and they torture me, but like, I feel it was not the amount of torture that I agreed to or whatever, right?

Robin:

Yes. Indeed!

Agnes:

I feel that they’re abusing this very significant power.

Robin:

Okay, yes.

Agnes:

And now, I suppose these vouchers themselves will have to be insured, right?

Robin:

Yes, of course.

Agnes:

But might you not worry that there will be a voucher wall of silence where they will want to protect one another?

Robin:

Well, the vouchers aren’t the ones you’re trying— you need to silence. It would be the bounty hunters that you want to silence.
So first of all we have to ask, Is this violation a violation of contract or a violation of criminal law? So if it’s a violation of contract, you have a contract violation with them, and you are suing on the basis of the contract violation. And then you could have the usual way in which you might get a lawyer on a, you know, percentage fee of the reward relationship in order to sue them. So that would be just on a pure contract violation. But we might want to up the penalty and add in a criminal punishment violation—

Agnes:

Given that it involves the illegitimate use of force.

Robin:

Right. Okay. In which case now bounty hunters would be people who could show up and say, if they can collect evidence showing that they tortured you illicitly, that they could get the bounty. And now the vouchers would have to convince the bounty hunter not to prosecute. But of course that’s the same reason bounty hunters are not going to let each other off either, because otherwise they’re giving up their bounty.

Agnes:

But suppose the bounty hunter does— So suppose you’re the voucher, right? And you torture me more than you were supposed to, and so then a bounty hunter is going to collect information on you, right? And suppose they do collect this information that you did this. Right? And so now you’re found guilty, right? You have this voucher, right? Who is supposed to—[laughs]—torture you, I guess?

Robin:

Well it depends on what your contract is, but they’re unlikely to torture you.

Agnes:

Yeah, but do some bad things to you, right?

Robin:

Right.

Agnes:

But why not think this is the point at which I would think the voucher-wall-of-silence might show up; where they’re like, Yeah, we’re not— you’re one of us, you’re with the voucher people; we’re not going to actually punish— we let each other off.

Robin:

So look at lawyers and private investigators in the world today. Right? Can you hire a lawyer to sue another lawyer? Yes. Will they take the case? Yes. Will they even fight hard? Yes. Now, there might be some small towns in which somebody—the dominant-enough lawyer—it would be hard to get some other lawyer in that small town to sue them, in which case you have to go to another town to get your lawyer.
Similarly for private investigators, can you get a PI to investigate another PI? You walk into a PI office and say, This other PI—I think he cheated me on my last contract with them, I want you to look into see whether the PI cheated me. Can you get a PI to do that? Yes, you can. Right?
And so you know, from an economist’s point of view this would be really about the concentration of these industries. And the industries that are not concentrated at all, which have a great many independent suppliers of the services, it’s very hard to get a coalition going that would conspire to, you know, to do things that wasn’t in each of their interests.
If there were only four partners involved—so the US airline industry, for example, is dominated by four major airlines, so it’s much easier to imagine them conspiring. If you try to do something with one airline, they might respond to you not in a way that’s in the interest of that airline, but the interest of the coalition of airlines, because there’s only four of them and they do watch each other and talk to each other. So what we want is for this vouching industry to be decentralized with many players, which then would be hard to coordinate.
And that— and like, say, that is what now happens with lawyers and private investigators, and even insurance companies. I mean, insurance companies mainly coordinate through what’s called reinsurance, where they insure together with a reinsurer. There’s a relatively limited number of reinsurers, but there are many insurance companies, and so insurance companies really can’t conspire to like keep up the prices, because there are just so many of them.
So vouching here is like insurance companies, basically. And so if we saw some scenario in which they seemed to be moving toward a very concentrated industry, we should worry about that. And that would be one reason to be light on the regulation of vouchers: There’s a danger that one way the vouchers could coordinate to create this coalition which would then protect themselves would be to set the regulatory standards so high that almost no one can meet them, in which case, there might only be four vouchers.

Agnes:

So it seems to me that like there’s a reason why we want to sort of coordinate on which uses of force are legitimate, right? And that we say, Okay, you can put someone in jail, right, but you can’t torture them. And then capital punishment, we’re like, you know, not so coordinated on. But in any case we want to reserve it.
Even the people who think we should have it, few of them would not say we should reserve it for a very select set of cases, and that’s because these are very terrible things to do to someone, right, who is like one of our fellow citizens. And so like we— and so we’re in effect, in committing one of these punishments, we’re saying, It’s okay for us to do terrible things to one another.

Robin:

Well, it’s okay for someone to do a terrible thing to you that you agreed to.

Agnes:

Right. Sorry, in this— I was not talking about your case, I was talking about the general cases, like we as a society, right?

Robin:

But if we do a terrible thing to you that you did not agree to—that we initiate that—then we want to be very particular about making sure we are careful with that.

Agnes:

And so you think— I mean you know, in a way you could make the case that if somebody knows that the law punishes such and such a crime with this penalty, then— and they commit the crime in that knowledge, then in effect they have agreed.

Robin:

No, because there’s just a lot of noise in the enforcement process and in actions. So standard legal analysis says that many people, like, do things in context where they’re not entirely sure what the law is and not entirely sure about enforcement, and things like that. So we tend to think of the law, even criminal law, as something where people might accidentally violate it and where our enforcement process might be noisy with respect to like whether it catches them, and what priorities it has. So…

Agnes:

So you think the participants in this world that you’re constructing will have way, way more knowledge about everything. They will really understand these contracts, and they will really understand what they’re getting themselves into. And they will understand really well what the alternatives would be that they could have chosen between, such that they’re making such an informed choice that on the informedness of that choice, we can reclassify the punishment that we’re doing to them as being in some sense chosen.

Robin:

I would just compare it to other choices of similar significance in people’s lives, and then sort of think about the unification here. So most people choose a phone company. They choose a car insurance company. They choose a diaper supply company—we choose many companies. But each choice, we don’t put a lot of research into because it’s a relatively limited part of our life, and there’s not that much that can go wrong.
If you choose, say, a cruise ship, you might like worry that now you’re going to be in international waters, and they can do things to you on international waters. You might want to be more careful about choosing a cruise ship. But it’s only one week in your life, and it would still not be worth a lot of effort, right?
But in our life sometimes we choose a marriage partner, for example, or we choose a job or career. Certainly that, like, takes us down a path that will be expensive to switch. And we hope and presume, and do observe, that people are more careful at least about these big choices in their life than about small ones.
And one big choice we let people make is to choose countries. We let people change countries, and in some sense that choice is a choice over these uses of force: If you let people leave here and go live in North Korea, then they are accepting… We are allowing people to accept the conditions of the law enforcement in North Korea. And in some sense that’s commonly accepted as something we should let people choose.
In my scenario, I’m merging a whole bunch of different kinds of roles into one single role, so this voucher role is a big role in your life. You’re going to pay a large premium and they’re going to handle a lot of things for you. Like all different kinds of liability, right? So this isn’t going to be just like choosing even your phone company, a relatively small choice—this is a pretty big choice.
And in addition there’ll be gains from like keeping the choice consistent over time. If you suddenly want to switch vouchers, new vouchers will wonder why you want to switch and they’ll be a little wary of that. And so it’ll make more sense to keep these on the longer term. And in fact maybe your parents get your first voucher for you even before you’re an adult. That’s some sort of contract for the next few years at least.
And we want you to think of this as a solemn, important choice. So I would recommend that the society with these sort of vouchers try to emphasize the solemnity and importance of the choice of your voucher. It’s a big deal. It’s like choosing a country! It’s smaller, perhaps, than choosing a country, but in that direction.
Or choosing a spouse: I mean, you can get divorced, maybe, but if you choose the wrong spouse there’s a world of pain that you may have to go through before you get to the divorce and get out, right? But we let people choose their spouse, we let people choose their jobs. And some people really hate their jobs. And we let people choose their countries.
So this seems like a large choice we could let people make, and then the trade-off would be, Do you get the benefits of letting people make this choice to correspond to the cost, comparable to these other big choices we let people make?

Agnes:

So it was my understanding—and I, this is a very vague memory from reading one paper—that it isn’t true that people put way more effort into making big choices than, say, medium-sized choices.
So if you think about the choice of what car to get or whatever, versus the choice of who to marry, whether or not to have kids, what country to live in—like you walk up to someone, you’re like, Why don’t you live in some other country? Like I think for many people the answer would be like, “I never even thought about it,” and like, “I never investigated, didn’t inquire into whether it’d be better or not.”
So suppose this is true for a moment that people don’t put bigger efforts into making very— they might put bigger efforts into making medium-size choices than small choices.

Robin:

Right.

Agnes:

But then with like the biggest choices of all, they just don’t put a lot of effort in. And maybe because, for some reason— I mean, I would have other explanations, but I’ll give you an explanation that it fits to you. Like maybe people are like especially hypocritical about those choices or something, or they have some image of themselves. And so you would have reason to expect that that’s how we will behave about this choice.
Would that for you— So what I want to know is, would that morally inhibit you from this proposal in the sense that it would less allow you to say that people had chosen these punishments?

Robin:

I would more just be wanting to have a guess of how well they make the choice, and to see if that’s well enough to make the system work. I don’t have a moral problem with letting— giving people difficult choices, and them making bad choices, as long as that doesn’t go bad too often. That would be my consequential sort of analysis. As long as— yeah, I let people choose their marriage partners, so long as they don’t choose their bad marriage partners too frequently. And if they choose their marriage partner with as much effort as they choose a diaper service company, and they should have chosen more, well, that might be lamentable, but unless I have a way to slap their face and make them pay more attention to the more important choice, I merely have to ask whether I want to let them have that choice or not.

Agnes:

Right. And in those cases, you know, with the spouse and whatever, we may think we don’t have a way to slap their face. But we may think, Well, as it is we do have a way to slap their face, and we’re doing it—we’re slapping their faces! [Laughs] And you’re proposing that instead of slapping their faces, we put it more under their— under, in some sense, their control. But if they control it, they’re going to control it in such a way that like…

Robin:

We could not give people the freedom to choose who to marry; I mean, many prior societies have not given 20-year-olds the freedom to choose who to marry, and so that’s within our scope of choice. We could allow people not to leave the country; there are countries who have chosen not to let people leave the country. So these other choices are choices we’ve made about giving people choices, they are not predetermined.

Agnes:

Right.

Robin:

But I’d also just point out that we make an awful lot of choices without directly calculating the consequences. We make them indirectly by copying what other people around us are doing, and sort of just observing over a long period, sort of how you feel about things. And I would expect that these biggest decisions that people are making less consciously, they are putting more effort in these other channels.
So I’m pretty sure that people do— When they think about who to marry, they don’t put out a spreadsheet, and that spreadsheet that they do doesn’t have very many columns and rows. Nevertheless they put a lot of emotional energy over the previous months asking themselves, How much do I like this person? How much do I trust this person? And they’ve looked at people around them and saw who they chose to marry— parents chose to marry. And they’ve tried to sort of triangulate some sort of heuristic about what sort of criteria you should have for who to marry. And in some sense they put a lot of work in that.
Similarly for careers: People think a lot, starting from the age of five or something, What do I want to be when I grow up? They imagine some things, they put themselves in situations, they may watch some movies about people who do those things. By the time they get to the point of choosing their major in college—again, they may not have a spreadsheet with very many columns or rows—but they do put a fair bit of effort into these things.

Agnes:

So you know one thing that puzzles me is it seems to me that there’s a tension between, on the one hand what you’re espousing here, which is that people make an honest and sincere cognitive effort to come to the right decisions where they are optimizing the very values that they take themselves to be optimizing; and work that you’ve done elsewhere, like in Elephant in the Brain, where you’re in effect saying, Nobody is pursuing what they think they’re pursuing, and we tell ourselves that we’re going after one thing when we’re actually going after another thing.

Robin:

Well, but that’s exactly— I mean, the spreadsheet— the columns and rows in the spreadsheet have to be with respect to the things you think you are optimizing for—

Agnes:

Right.

Robin:

—but your intuitions over the previous months about whether you like something or not do not have to respect that. You may tell yourself— I mean, many people have, you know, made a checklist about their perfect mate and the items that are supposed to be on it. And you know the common trope about those checklists is when you finally pick somebody, they don’t rank very high on your checklist, right? What that means is these things that you thought you should be using to make your decision for a mate, in fact are not what you actually use to make your decisions. Right? And so that’s a virtue of the fact that people are not using a spreadsheet to make these decisions, because the spreadsheet would lead them wrong, at least from what— the point of view what they really want. And their sort of tracking their intuitions and feelings about things over the previous months and years are a better guide to them making the right choice, from the point of view of the things they really want.

Agnes:

Right. And so like for example, I mean, you know, your thought is to say like, What people really want with respect to health care is like showing that they care for one another.

Robin:

Right.

Agnes:

So isn’t it possible that what people really want with respect to criminal justice will be some weird thing like that? It won’t be like, not being—

Robin:

Oh sure, I mean, I think it will be a number of things. We could— It would be great to talk about the motives people actually have with respect to criminal justice, and think about things that can go wrong there.

Agnes:

And you think that it will just— but it would be better if we optimize their pursuit of those motives, whatever they are.

Robin:

Just, you just have to realize how bad the current system is.

Agnes:

Right. Okay, fair enough.

Robin:

You know, the current system was also not optimizing for the things that we really want. It’s optimizing for a bunch of random things, and it’s doing a bad job of it. And this could just do a better job of, again, giving us the things that we say we want or think we want, rather than what we really want, or vice versa.
But again, so like for example, I can see some errors that people might make in their early choice of vouchers. And then, you know— but if we start with small-scale trials, and then we like get experience with them, hopefully we start to tell stories about the kind of mistakes people make with their vouchers, and then people start to learn. You know, just like the kind of mistakes you make with a job or a spouse, right? We have the stories we tell each other about the typical mistakes of jobs and spouses. Or countries even.
And that’s part of what people use to make their choices, is in the context of those stories; they don’t want to look like a stupid person in the story, right? And these stories have fools in them, and they don’t want to be one of those fools, the characters. And so they would be making their choices to try to avoid those fool scenarios.
So I mean, two obvious fool scenarios here: One would be someone who says, I’m really confident I’m never ever going to commit any crimes. I’m not a criminal, so I’m going to just max out the punishments on these things. I’m going to show you that there’s no risk I have whatsoever of being a criminal, so you can do all sorts of terrible things to me. And that’s bluster and bravado, right? And that might project the image they want to protect to the people around them, right?
And then you know what? Sometimes those guys will be guilty. And you know what, sometimes those people will actually get that punishment. How often will that be? I don’t know. Is that a big problem? But you know, it’s a thing that happens with bravado in other sorts of parts of society, right?
You might say, I know almost all actors fail, but I won’t fail because I’m better than those other actors, right? And we let people be arrogant and braggarts about themselves in those ways. And you know, sometimes it works out, sometimes it doesn’t. But that’s one— that scenario, and I would hope we had movies and stories that describe that character and how they went wrong as a warning to people about, you know, you could end up being that character.

Agnes:

Yeah, I mean it’s interesting because in effect your system punishes people in a way less for being bad than for making bad predictions about themselves, right? [Laughs] So it’s a world in which that kind of rationality about oneself is to be rewarded.

Robin:

Of course that’s also true in marriages and jobs. And countries. Yes, those are often— what goes wrong with those choices are predictions about yourself more than with the other people.

Agnes:

Right, right. But in those cases— I mean, in those cases, bad stuff is still happening to you, but it’s not like a literal punishment, right? It’s like consequences. And here it’s like a punishment. And so I want to go back to this, you know, this phrase you said, you know, we have to give people the feeling of solemnity and importance here.
So, you know, you might say, Well, why? Right? Why’s there this— well, it’s a big deal if we’re maybe like torturing people or killing them or whatever, right? And we’re sort of saying that this is like— because in general, we don’t think it’s okay to kill people or torture them or lock them up, right? We think that’s like a bad thing to do to the people around you, right? It’s exactly why we like have laws on these questions.

Robin:

But we also think these crimes are bad things, and we’re trying to match those things together, right?

Agnes:

Right, right, right. But that— I think that society is in a kind of bind, right? In that, say, locking someone up in a little room: Okay, that’s like a really bad thing to do, and as a society we want to be able to say that’s a really bad thing to do. Right?

Robin:

Right.

Agnes:

And then we also want to say, But sometimes it’s okay. Right? And, but we want to be able to say the first thing, that it’s really bad, like very, very emphatically, while still saying the second thing. That’s like problematic, right? Because we’re like, you know, It’s totally fine to do it in this case. It’s great. You’re actually— But it’s a super sort of bad thing to do, right?

Robin:

Right.

Agnes:

And so then the question is, How does one hold both of those things together? Very strong emotional, you know, claims of these two kinds. And I think the criminal justice system in part is like structured as it is so as to allow us to say both of these things. And so we see, you know, committing murder or something, or locking someone up in a little room, as like a very grievous thing, right? That’s quite serious. And you want to say, Well let’s have this system, and then let’s put some solemnity and importance sauce on at the end.

Robin:

Well, I want to add solemnity on the choice of voucher; I’m not taking away the other part of the solemnity. So remember, under the system, you know, a bounty hunter comes into court and brings— hauls you into court, and before the court accuses you of something. And there’s a solemn procedure by which the court will consider whether you are guilty, and the judge will make a sentence at the end of guilt, and the appropriate fine and bounty. And then you will be punished with that.
So most of our solemnity in the legal system is with respect to the accusation and the trial and the sentencing, and we actually don’t pay that much attention to the details of prisons. And a lot— not a lot of public attention—or solemnity, certainly—goes into the details of prisons and how people are treated there, and things like that. And that’s actually where we’re missing solemnity. And so this will add that: Here, now, you’re going to be solemn about your choice of voucher.
So you’re focused on the negative punishment, but I think there’s other— there’s things on the other side of the equation that are also to be solemn about here. So for example, like, I wanted to make sure— to bring the point up that like, imagine somebody who just had a bad record, like they were just a troublemaker, and so vouchers look at them and go, “No.” And they don’t actually have an ability to earn a lot of income yet. So they aren’t hired, and so the vouchers basically say, You need to move the terms of these contracts in our direction if you’re going to have any hope of a premium you can pay. And so I just want us to walk through like what that would take and then realize some implications of it.
So this person has a bad record. And so far they can earn a minimum wage, maybe; that’s what they’re capable of. And yet there would be a big risk for a voucher. So what will happen then, because they’re required to get a voucher—and unless they leave the country to a country that doesn’t require that—is they will accept a lot of limits on their freedom.
So for example there might be a logging farm in northern Minnesota, and you live on the farm, and in barracks, and then maybe once a week you can go into town in an escorted group. And while you’re on town in barracks, they’ve got cameras that read your emails. And now if the contract says you stay on the barracks doing the logging, and that’s how we’ll give you a vouching premium, then you can probably afford that one, right? But it’s going to cost—

Agnes:

Kind of like you’re already in prison to stay out of prison. [Laughs]

Robin:

Yes, exactly. But that’s the key point here, right?

Agnes:

Right.

Robin:

You will have to accept a lot of limits on your freedom in order to lower this premium. And so those I think are also some of the fraught choices here: That many people, especially poor people who can’t earn a lot of income and who seem to be high risks, will have to choose how many limits to have put on their freedom. Can I go into town? Can I drink a lot there? Can I have boisterous friends… right?
There’s all the sort of things that might lead to bad events. Do I want to allow myself to do those? Do I want to pay extra for those things? And that should also be a solemn choice, right? And that would be like, almost with the, you know, the biblical story of the prodigal son or something, right?
You’re choosing something of a lifestyle when you’re choosing a voucher here: You’re choosing what sort of freedoms to give yourself, what sort of— can the police read your emails, right? Do I have a curfew? What kind of people am I allowed to hang out with? That’s also these few choices, not just which punishments I might get if I’m punished.

Agnes:

Right. So I mean, one question about this is like, suppose that it’s of great value to us, in our society, as I think it is for many people anyway, to make sort of social mobility possible: Like if you’re poor, you’re not stuck being poor. And you know, there’s some degree to which it’s possible. Do you think your system would have no effect, would increase, or would decrease the possibility of some sort of social mobility?

Robin:

So, first—

Agnes:

By which I mean poor people becoming rich—for some reason, some people never make it out of that.

Robin:

Right. So this person on the logging farm who is tempted to actually start fistfights in bars on the weekend, they might have a better future if that’s limited by this, you know: First they work on the logging farm for a couple years, they show— and then they are, you know, allowed to maybe drive a logging truck and go farther away. And then they could be proving themselves. And it’s similar to like how many people say the military-like discipline— you know, when they weren’t— they didn’t have enough discipline, and on top of discipline, gave them these constraints and they moved down a path, right?
So that’s certainly possible. But I guess the, you know, the larger thing here is that these— you know, they’re making these key choices for themselves. So today, I mean, it’s a standard thing: The people who are mostly the victims of crime are poor people. And they’re also the perpetrators. So the people who are being held back by the commission of the crimes are poor people. So if you can actually prevent poor people from predating on poor people, then the non-predator poor people have a better shot to improve their lives.
You know, it’s one of the standard things that rich people don’t want to live in poor neighborhoods. Why? Because they’re afraid of bad things happening to them, not only bad experiences that will prevent their life from going well. Right? If you’re trying to like have a solid career, and relationships, and everything like that, neighborhoods in which there’s a lot of predation get in the way of that.
They get in the way of your— and of course people often, in order to survive those neighbors, they have to like take on toughness and style and attitude and show that they’d be willing to fight back in a fight, and put priority and energy into showing their toughness and showing their allegiance to the neighborhood. Otherwise, the neighborhood might declare they’re betraying them and all those sorts of things.
So you know, to the extent that our laws actually would punish the sort of predation that happens there, then this system would prevent that more effectively. Then you’re protecting the people who would otherwise be hurt.

Agnes:

Yeah, I mean, I think it’s really interesting to think about the question, How much like— how much rhetorical or persuasive work is supposed to be being done in your construction of this case by the idea that people are making choices for themselves? So like, if you could try to imagine a version of your same thing but where people are given less choices—maybe it’s done at the group level or whatever, right?—like, you know, would you still be putting it forward?
And I think it’s— The reason I’m putting it that way is because like if you imagine this person in the logging farm, right, and that they can’t leave except on weekends and whatever: I mean that, to me, that looks like a kind of enslavement, right? And I want to say, This person doesn’t look very free. And you might say, No, no, they were free—like, they were able to choose this. Right?
And so like there’s one kind of freedom, right, where like the poor person who, you know, is making the— maybe they were born in a poor neighborhood and they grew up in a poor neighborhood, and they have a relatively small range of options, right, that they can choose from, and their incentives aren’t that great, right? And so that’s one kind of freedom, and they’re making certain kinds of constrained choices. And they’re not making choices about what kinds of criminal justice system to be under, right?
And then there’s another kind of freedom that they have in your world, right? And you know, it’s not clear to me that your world makes them more free, or even have more choices. They have more choices with respect to one thing, right? But and so, like, one question would be, Are they better off in your world? Right? And the other question would be, Are they more free in your world? And my question to you is, how important is the answer to the second question?

Robin:

So I am a traditional economist, and perhaps more of an economist than most economists in the sense that I prefer the usual economic measure of whether policies are good: economic welfare. And I have a rationale for why I prefer that in the world that I’m in. But in this context, I’m happy to just use that measure and not put priority on other things.
But the concept of freedom, you know, has this key ambiguity that you’re pointing to, in the sense of there’s a difference between freedom at the moment and freedom to limit your future self. Right? And so for example, you know, a marriage is supposedly limiting your future freedom, right? At the moment you can have sex with anybody, and as soon as you’re married, under most marriages, you have agreed to only have sex with one other person. And so now you are less free, right? A marriage is a choice to be less free.
And of course an employment contract is often a choice to be less free: You choose— you agree to show up at these hours and do these things. A home mortgage is a choice to be less free; you know, attending a school is a choice to be less free. I mean, many of the choices we give people are about choosing their futures, but in order to choose your future, in essence you have to limit the choices of your future.
You have to agree that your future self has all these substantial costs you’re going to impose on them making various choices. I mean, the married person could have an affair, but then they might get divorced. And you know, then they know that that’s a cost, and that might limit their tendency in that direction, right?
So, you know, we usually think that it’s okay to let people commit their future selves to ventures that have substantial value: Marriages, jobs, businesses, education. And we are probably somewhat uncomfortable with giving people arbitrary abilities to commit their future selves. And so we have some areas of life where we want to always ensure that people have some substantial degree of temporary freedom to change their mind about what they’ve committed to ahead of time, but in what I’m talking about it doesn’t seem that different from the other choices we can make.

Agnes:

So I think— the thing I think it is that’s pretty different about it is what the costs are. So like when you commit your future self, right? Yeah, like you can, you know, you can— There may be costs to quitting the job, or you know, either divorce, or your spouse being super angry at you for the affair, or… Like those are certainly costs. Right?
But like I guess that there’s a reason why I was focusing on the torture and, you know, it’s like that— those kinds of costs are what are keeping that person in the mining place. Like it’s what’s— that’s the kind of threat that they’re under, where that seems closer to me to something like slavery. And so like in general, I think we think, you know, not really okay to sell yourself into slavery, or to allow people to do that. Now, you know people may disagree about that. I mean, I’m willing to argue about it. Those are my intuitions, is we do want a society…

Robin:

But you allow people to move to North Korea.

Agnes:

Right. I mean like if, you know, if North Korea were somehow part of our country and we could regulate them, and not allow—

Robin:

But you could regulate not letting people leave for North Korea.

Agnes:

Yeah. I mean it may be that like we have a general rule about letting people leave. And then we— once we have the rule about letting people leave, it’s not so easy to control. But we also believe that they’re not going to go to North Korea, which, because they’re not, right? So when people leave, they’re going to tend to, you know, go anywhere else! [Laughs]

Robin:

Well then you should criticize the old Soviet Union for letting people leave to go to non-communist countries, because they thought, you know, communist countries were good, and non-communist were bad.

Agnes:

Did, say, a lot of people leave?

Robin:

They did not! But that’s what I’m saying.

Agnes:

They did say—oh yeah, okay.

Robin:

And they had a rule against letting people leave, and they could justify that by saying, Well you know, you’d be… And we tended to criticize that other team.

Agnes:

Yes. Right.

Robin:

Right. But you know, you could see this rational— But in any case—

Agnes:

Right, but—

Robin:

I just want to make the larger point, that is: The thing I’ve proposed in general could be regulated and limited, right? The system itself, I might argue, would be somewhat less beneficial and somewhat more limited if you imposed a bunch of rules, but you could do that: You could limit like the kinds of torture allowed, or the degree of torture, or things like that. You can only say— only for certain sort of crimes, we’d allow you to agree to the torture. So—

Agnes:

Right. But I mean, I— Even if we limited it to the set of punishments we have now— and I want to grant you that like the system now isn’t good in any particular— just the way prisons are structured is very bad, and so I agree with you in the sense that there should be some kind of big reform there. But if, you know, the big— the biggest sort of downside I see of your proposal is the privatization of the use of— of uses of force that we want to sanction as immoral. That’s the biggest downside I see.

Robin:

But so first of all, you would ban like fight club. You would not allow fight club.

Agnes:

I am— I mean, like, I’m sort of less clear on whether, you know, like boxing is kind of like fighting.

Robin:

It’s indeed, yes.

Agnes:

I don’t find it very pleasant to watch or to think that it exists.

Robin:

Should we allow— people should be allowed to box.

Agnes:

But I tend to think, yes, people should be allowed to box. So but like I guess I think that— so and but here we get to like this question about choice, but—

Robin:

Right. And— So if it’s a kind of torture that isn’t any worse than being knocked out in a boxing match.

Agnes:

No, but I don’t think it’s just a question of like, sort of how much pain the person is experiencing or something like that, right? I think it’s like the— What makes the difference here is the use of force as a kind of punishment to someone with an intent to harm them, right? So that’s what the voucher has to be doing to you, right?

Robin:

Right.

Agnes:

And that’s just very different from other sort of ways in which the harm might be semantically structured in terms of a space of meaning, right? So the meaning of this harm is like that someone wants to harm you, is inflicting this on you in order to harm you. Not as part of a game, not as part of a sport.

Robin:

So at the highest level I see the issue as us all making common choices through a common system that is very difficult to influence and to innovate, and to try to take some decisions out of that common space and move into a private space where we expect more innovation and adaptation, and therefore more efficiency. And so the key question here is about, you know, what choices must be made collectively together? And what choices must be made— can be made separately.

Agnes:

Yeah.

Robin:

And to only make the choices together that we need to make together.

Agnes:

Right.

Robin:

And so then we come down to, in some cases we want— we need to discourage people via some threats. And then, how much do we all have to agree on what those threats are? Is it okay if a person themselves agrees? Or do the rest of us also have to agree with their terms? So you can imagine regulating to get these contracts, and you can imagine adding more and more constraints. And then we would basically be stepping in and saying, We want to be part of this decision.
And there’s— you know, there’s two elements there that we will highlight. One is the idea that we don’t want you to make the choice yourself. We think that’s not okay. But the other is, who’s the “we”? Sort of, what’s the unit of the “we” that we’re doing?
So the “we” isn’t today the world, right? It’s some government. And it’s, you know, to me and many others it’s not obvious that that has to be the “we” that makes these choices. If you could have a smaller “we,” like a church or something else, we might think, well, that would be okay. We might want you to do it as part of some “we,” to do it communally, but that doesn’t mean the state has to be the community.
And so here, like letting you choose your church, we’re letting you choose your community here, we’re letting you choose your voucher, and the people you have co-liability with with the voucher, etc. And you don’t have to think of it as like a personal choice so much—we could even like have people join vouchers as groups together, and not join them, you know, individually, if you wanted to do it that way.
But— and I expect actually, for example, you know, churches offering vouching services to their members would be a thing. That is, becoming members of a— customers of a voucher together as members of your church, would make sense in the sense that you’re implicitly saying we support each other, and we will watch out for each other.
And you can imagine families joining together, or groups of friends joining together. It would make sense to do this as a group. And then it would be, the group made this choice about the punishment. It wasn’t just you. And so my question to you is, Okay, you’re uncomfortable with letting people individually make this choice, but does it have to be the U.S. government?

Agnes:

I mean, I guess I can imagine societies getting reorganized on smaller scales. You know, the United States could become more federalist and we—

Robin:

Right, but why can’t we just let this choice be made on a smaller scale, but other choices be made on the larger scale?

Agnes:

Yeah, I mean, I guess because like when— so, you know, we’re— if you think of the people in your country as in some sense the people that you’re living with; like that you’re—

Robin:

That’s my question, should you think of them as that?

Agnes:

Well, how else do you propose that you think?

Robin:

I propose that you think of themselves as members of many nest— sometimes nested groups, and that you allocate different functions to different levels of these nesting of groups. And the question is, which functions should be at which levels?

Agnes:

Right. And I mean, I guess I think that like this question about, you know, whether or not it is okay to imprison someone or to treat them violently, we think that that question should be decided at the same level of group that is the level at which we like make general rules about how we all want to be governed or live together. And that seems to me to be the level of government.

Robin:

We have multiple levels that meet that criteria right now: So we have cities, and counties, and states, and nations. So even what you just said doesn’t distinguish between those. I mean, they each make different aspects of those decisions.

Agnes:

Yeah, that’s true.

Robin:

And then for example, if somebody wanted to join a commune you might ask, Well, like how many powers would you be willing to give the commune to make its own decisions? Or a church, for example. I mean, the key question is, Do we need to make everybody share common decisions about everything just because we’re in the same state? Or can we let some local groups make some different decisions?

Agnes:

Right, and I can imagine that sort of, if there were a way of isolating the group such that it— like the commune case, right? That would be sort of like a foreign country inside your country. And I don’t think geography is in and of itself that important. So that would be sort of like the letting-people-leave option.

Robin:

Right.

Agnes:

Right. And then those people would be making decisions about who’s allowed to imprison who by the same processes they’re making the general rules for group governance, which is at a small—like, smaller group level. That makes sense to me. But what doesn’t make sense to me is that the decision about who can, you know, imprison who, under what circumstances, is made at a smaller level than kind of the most general level at which we’re deciding who can govern.

Robin:

So we’re running out of time, so maybe we can just point to some directions later. But you know, it’d be interesting to compare like, you know, in a workplace, who should get to choose how close the nearest bathroom is, or how often you get bathroom breaks, or whether there’s sunlight that comes in, or, you know, it’s all artificial light. Things like that, right?
So there are many people who want those decisions to be made collectively too. So you know, your stance on this one opens up a whole bunch of related questions—you know, move in different directions—basically: which of the many decisions we make should be made collectively? So, you know, you just say “use of force,” but of course you’ve already admitted that persuasion is force.

Agnes:

Yes.

Robin:

You don’t really mean that, right?

Agnes:

Right. I mean, the kinds of force that we have all decided are like immoral. But you’re right. I mean, that’s important, and it’s somewhat arbitrary.

Robin:

Right, but of course— But it’s not clearly immoral to just put somebody in a room for a while. You know, so is jail immoral? Well, it depends on like what the room’s like, and when you’re allowed to go to other rooms. I mean, it’s a pretty complicated thing. There isn’t like a clear, obvious thing, it’s just immoral to put people in rooms.

Agnes:

Yeah, but I think we sort of like— I mean the weird thing is like, we choose punishments on the basis of like, this is the sort of thing which would be a horrible thing— an evil thing to do to someone, who are then—

Robin:

Oh, you know, a dorm could have a curfew, which says you have to be in your room after eleven o’clock. Is that jail?

Agnes:

Right, I know, I agree. And I mean, similarly, something that would be considered torture in one context would just be boxing in another.

Robin:

Or the cruise line, there’s a virus infection, and so people just have to stay in their cabins more, and they have to bring food to them, and they can’t come out of their cabins, right? Is that jail? Is that an immoral thing? Should the government have to be in charge of deciding when the cruise line can close people’s doors and put them in their cabin? I mean…

Agnes:

Right, I agree with you. What I’m saying is that it matters a lot that it be figured as punishment. And— but the idea is that the use of that force as punishment—

Robin:

But why? I mean— because, look, I could punish you for something— we punish each other in a lot of contexts than aren’t government punishment, right? There’s punishment as a thing that happens all over society, right? Does government have to approve all punishments of all sorts, anywhere?
Like a teacher puts the kid in the corner of the classroom—does government have to approve that? You give your kid a timeout—does the government have to approve that? You know, you made me mad and so I’m not talking to you for a week, right—does the government have to approve that?

Agnes:

Yeah, I mean no, it’s a good point. And I think— I mean, I think we are actually quite restrictive as to how teachers are allowed to punish students and how parents are allowed to punish their children. But…

Robin:

Maybe this is a good point to end, because neither of us know what to say next!

Agnes:

[Laughs] Okay!

Robin:

But nice talking to you, Agnes.

Agnes:

Nice talking to you too.