Is “Good” Design Worse for Everyone?

 (A personal background note:  I was raised by an engineer and a linguist. Two persistent frustrations I face in life are poor design decisions and misuse of language.)

As we design technologies to be more “user-friendly,” we demand less of the user. This means the user needs less knowledge to use the product. Those who used computers in the 1970s-1990s needed some measure of understanding of the computer to use it. In today’s point-and-click interfaces, everyone can use the computer without understanding a thing about how it works. This is the kind of democratization that leads to ignorance.

There are two ways to open something up democratically: 1) Elevate the populace to meet the entry standards, 2) Lower the entry standards so that more people can meet them in the people’s current state. The enthusiastic talk about how digital technologies democratize is not necessarily encouraging because it is often another way of saying that people need to know less in order to participate. All that means is the average participant is more ignorant.  The great hope is that digital technologies can be used to challenge and educate the populace rather than to coddle and welcome their ignorance.

Two “Oughts” Of Law and Who “Ought” To Decide Them

There are two types of “ought” in US Law. The first type is in reference stare decisis and precedent: if a previous decision handled a situation in manner X, then a similar situation should also be handled in manner X because of that previous decision. For areas of law without a clear and certain statute, this is the essence of how legal issues are decided. (It is called “Common Law.”)

The second type of “ought” is the normative, moral ought we often when discussing law: the government ought to adopt policy X, because it is good for the economy; the court ought to decide the case in manner X because it is the right way to treat people’s property rights. It is based in our sense of right and wrong, good or bad, and not in what has previously been decided or enacted (unless, by coincidence, we base our sense of good and bad on legal continuity and reliability).

Political debates can be confusing when each party is using different meanings of the word “ought” (or similar word, like “should” or “must” or “needs to”). It is often disturbing, yet none the less true, that the legally required answer to a problem may differ or even conflict with what we consider the morally required answer.

Some have felt that it should be the obligation of the courts to alter the law so that the legally required answer aligns with the moral sensibilities of the community. This poses a problem in the face of US governmental structure because judges (all Federal and many state ones, at least) are not elected and as such lack the kind of connection to the voting democratic population that we associate with legislatures and executives (governors and presidents). The issue is this: In a democratic republic, should the unelected branch of government have veto power over the elected branch of government? This issue was brought to public attention last year in the 9th Circuit (mostly, California) when a ballot initiative passed popular vote but was struck down by a federal judge.

Some focus too much on the substance of the law in question, but that approach can’t provide categorical answers. If we think it is ok for the judiciary to strike down laws passed by the people, we must seriously question whether we are really true to the notion of democracy. If we think that the only check on the voice of the people should be the voice of the people, we might be concerned that if 51% of the people vote to kill/imprison/beat up the other 49% of the people just because they feel like it, there can be no kind of recourse or justice for that 49%.

This becomes the problem that is described in academic literature as the countermajoritarian difficulty vs. the tyranny of the majority. Should we allow the majority to be countered, or should we risk the majority abusing their power of the ballot? The Constitution establishes a framework for government, but it does not establish a meta-framework for itself.

A Head in the Sand is Not an Ideal Source of Rights.

Whether restricting or expanding rights, we need to be very careful about how and why we do it. Expanding rights feels good, but when we do it because it feels good, it can be hard to stop. Restricting rights might sometimes feel moral or make us seem safer, but if we’re chasing an illusion of security, we may never stop running after it.

Americans have a culture of celebrating their freedom of public discourse by expressing their opinions, through news media, letters to public officials, discussions around the bar and the dinner table, and so on. With all of our focus on discussions, we rarely think critically about the way we discuss. We leap on solitary arguments, but often in isolation of other arguments and often miss larger pictures. This not only makes our debates aimless and fruitless, it makes them potentially dangerous for a common law nation: The more prone we are to accepting a single, isolated point as justification for a policy, the more easily that same isolated point can be applied inappropriately to quasi-related situations. While it seems true that the daily activities of other people don’t have an immediate and pressing effect on us, not all possible rights seem well founded in the principle “let people do what they want.” One reason is that we would be unsatisfied allowing truly unlimited rights for people (unless we are anarchists), but another reason is that other people’s actions actually do affect us. (For more information on this, I recommend the book Rights Talk by Mary Ann Glendon.)

I am inclined to think that the many freedoms of speech and press guaranteed by law in this country are only truly good for society if society uses them responsibly and smartly. It may be that a nation of sloppy, half-thought discourse is worse than government restrictions on public speech.