Orders in Disguise

By Cyberquill 03/30/20124 Comments

The infamous Sedition Act of 1798 criminalized “false, scandalous, and malicious” writing against the government and certain government officials. Critics of this law pointed to its apparent conflict with the First Amendment, which sets forth that Congress shall “make no law abridging the freedom of speech.” 

Proponents of the Sedition Act argued that no such freedom was abridged, as no one was prevented from disseminating any writings against the government, no matter how scandalous or malicious, as the Act provided for no prior restraint, only for subsequent punishment: everyone was perfectly “free” to sound off as they pleased and suffer the consequences should their comments be deemed in violation of the Sedition Act.  

These days, we’re witnessing a rerun of the debate over the nature of compulsion, as proponents of the Patient Protection and Affordable Care Act (“Obamacare”) keep insisting that charging a penalty for the refusal to purchase health insurance does not amount to compelling people to buy insurance.

In the words of one Obamacare spokesperson, “It imposes a penalty, and a penalty is different from forcing people to buy.” That’s because, I suppose, everybody is perfectly free to skip purchasing insurance and pay the penalty instead. (Upon being asked what might happen if a particularly refractory individual then refused to pay the penalty, another Obamacare advocate put forth that in such an event the troublemaker would continue to be “reminded” to pay it, but stopped short of elaborating on the precise nature of these “reminders.”)

As per this curious thesis, the prospect of suffering sanctions for a particular behavior does not constitute a restriction of the freedom to engage in it: as long as people have a choice between either (a) complying or (b) not complying and getting paddled for insubordination, no compelling is going on.

But what is the hallmark of being compelled—rather than merely advised or encouraged—to behave a certain way other than the expectation of undesirable repercussions for not behaving this way? What exactly does it mean to receive an order as opposed to, say, an invitation or a suggestion?

According to the dictionary, an order is a “command, direction, or instruction, usually backed by authority.”

In essence, an order is the act of communicating a behavioral preference the non-compliance with which will entail unpleasant consequences for the recipient of such communication, i.e., result in punishment: some authority figure lets us know how he or she would like us to behave, and if we refuse to “cooperate,” some form of pain will descend upon us, e.g., a grounding, a beating, a fine, imprisonment, perk withdrawal, or employment termination, to name but a few classic examples.

“Pain” refers to anything we perceive as unpleasant or uncomfortable and would thus prefer to avoid, and “punishment” is the kind of pain associated with insubordination.

Anyone in a position to inflict pain upon us if we don’t yield to his or her desires has authority over us. Rather than an innate personality trait divorced from external circumstances, authority is a fluctuating phenomenon that emerges from a given situation. If I let the Emperor of China stay at my house and he ignores my rules of conduct, I can inflict pain upon him, i.e., I can throw him out. The reverse, of course, applies the moment I set foot into China. Whoever happens to be in a position to levy discomfort upon someone that defies their druthers has authority over that person.

Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. Alexander Hamilton, Federalist No. 15

Whether or not we’ve received an order is entirely a function of the potential for unpleasant (= painful) consequences our disobedience will bring about, not a function of the intent of the issuing party, nor of the manner of delivery. Individuals that have no authority over us (i.e., who are in no position to levy sanctions and discomfort upon us in case of our non-compliance) can bark what they consider “orders” at us all day long, but if no pain attends our refusal to play ball, these aren’t orders.

However, if people begin to annoy us (= cause us pain) by persistently attempting to mold our behavior to their liking, and compliance seems to be the only way to shut them up (= bring relief, as opposed to more pain in consequence of our ongoing failure to comply), then their instructions are, in fact, orders.

On the other hand, many orders that don’t walk and quack like orders—i.e., that aren’t phrased as sentences ending in exclamation points (“Jump in the lake!”) and delivered with an imperious mien—are full-fledged injunctions nonetheless.

A former superior of mine had a habit of delivering his orders in the guise of favor requests. He would say something like, “Peter, can you do me a favor and get a haircut?” This meant I could either (a) get a haircut or (b) go look for another job. He wasn’t asking for a “favor.” He was telling me what to do, and my refusal to comply would have resulted in painful consequences for me, in this case loss of income. The fact that he spoke softly with a smile and articulated his wishes as if they were non-binding entreaties didn’t change the fact that they were orders.

If we are punished for denying someone a favor, no “favor” was asked of us. We were given an order. If your wife withholds sex because you denied her the “favor” of doing the dishes, you were ordered to do the dishes (assuming you lament rather than look forward to the carnal time-out). In principle, this is no different from ignoring an order in the military and being tossed in the brig on bread and water as a result: in both cases, someone relates to you how he or she would like you to behave, you refuse, and pain follows in direct consequence of your refusal. The precise nature and intensity of the pain do not alter this underlying principle: either you cooperate, or else.

The most insidious kinds of orders are the ones that are being sold to us as something else:

Let’s say you’re stuck in an environment where escape is difficult, such as your home or workplace, and another denizen of said environment makes a suggestion or extends to you an invitation of some sort. (Since people rarely suggest or invite unless they would prefer their suggestions and invitations to be accepted rather than rejected by the recipients, giving suggestions and extending invitations are ways of communicating desired behaviors to others.)

For whatever reason, you reject the suggestion or decline the invitation. Now the other person gets mad at you, calls you “stubborn,” testily snipes at you to “do whatever you want,” the atmosphere turns sour, and you can’t really get away, because that’s where you live or work. This, of course, is a rather painful consequence of your refusal to cooperate. You’re being, in effect, punished for not dancing to the other person’s drum. You weren’t given a suggestion or an invitation. You were given an order.

So when trying to determine whether you’ve been given an order as opposed to a genuine invitation or suggestion, simply ask yourself this:

What will happen if I don’t do what that person has communicated (in whatever manner) that he or she would like me to do?

And if you’d rather avoid that which is likely to happen if you fail to behave in accordance with that person’s wishes, you’ve been given an order.

If a policeman communicates to you that he’d like you to show him your license and registration, you’re free to either (a) comply, or (b) put up with the consequences of not complying.

If your roommate communicates to you that she’d like you to remove that ugly Schiele painting from the kitchen wall, you’re free to either (a) remove it, or (b) live in an atmosphere chilled by a woman’s scorn and having your Schiele keyed one day.

No matter how seemingly apples-and-oranges various situations appear to present themselves on the surface, at bottom the following 3-step mechanism indicates the presence of an act of external compulsion:

  1. Someone lets us know how he/she/they would like us to behave
  2. We refuse
  3. Our refusal results in pain

Anytime pain avoidance figures as our sole motivation for complying with someone else’s wishes, we’re being compelled (= ordered) to behave a certain way, whether the compelling party consents to such characterization or not.

If we don’t want to do something, and our only two options are (1) doing it or (2) getting whacked for not doing it, we are being forced to do it.

The prospect of unpleasance, of whatever kind, as the price for insubordination is the very quiddity of force, whether imposed by the sword or by gentler means.

And there’s no such thing as voluntarily purchasing insurance in order to avoid the fine for not purchasing it.

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  • Testazyk

    What’s that old saying?  If is walks like a duck and it quacks like a duck, it’s a duck.

    Personally I see it as a tax to help fund a system which benefits the entire society and those are the kind of taxes I don’t mind paying.

    • http://blog.cyberquill.com Cyberquill

      Yes, that’s the old saying. I actually used it further down in my post. You didn’t read the whole thing. Just admit it. 

      No idea why they didn’t conceive this whole health care reform as one big tax to begin with. Just hike taxes for everyone, and then the government will use the money thus raised to foot everybody’s medical bills (minus a co-pay per doctor visit so as to discourage trivial doctor visits). 

      So instead of purchasing health insurance, people would simply pay more in taxes. Since it’s been an open secret for a long time that health care, as currently practiced, and Medicare in particular, will eventually bankrupt the United States, such a tax could easily be justified using a  “General Welfare” rationale. End of story. 

      That way, I believe, the question of constitutionality could have been circumvented from the jump, and the Supreme Court wouldn’t have to wrestle with the question of whether the penalty for failure to buy health insurance is a “penalty” or a “tax” or a “tax penalty.” 

       

      • Testazyk

        Re ducks:  au contraire--I was showing you that I knew the whence of your reference to quacking and walking like an order.

        Re tax:  yes, but it’s politically unpalatable. 

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