Rules of the (Discursive) Road

by Robert Gressis


Imagine that the rules of the road were the following:

[1] In general, you’re allowed to drive wherever you want, though some places are off-limits, either because they’re not public roads, or because you don’t have money for the toll, or because they’re temporarily closed.

[2] Similarly, you must follow the traffic laws wherever you drive — speed limits, which side of the road to drive on, when you can and can’t turn on red, etc.

[3] If you violate the rules of the road, ignorance of the law is no excuse.

[4] If you get into a car accident, the person who is most at fault has to pay the most (or perhaps even all).

So far, so good. These are, to the best of my knowledge, the rules of the road that prevail just about everywhere.

But imagine that people became upset with the rules of the road. For one thing, people who are poorer have cars that are less safe, and so, when they get into accidents, they tend to suffer death or injury at a greater degree than rich people. In addition, they can’t afford to get into accidents, so they have to drive significantly more cautiously than rich people. However, because they are poorer, they have generally have less time or ability to fix their cars, so they’re likelier to get into accidents. Finally, the poor are less likely to know the rules of the road, and so are more likely to accidentally break the law and suffer the consequences. Because of these conditions, the fourth rule, though it is facially neutral, actually impacts poor people much harder than richer people. In light of this, imagine that reformers decide to replace the fourth rule with two new ones:

[5] With regard to car accidents, police no longer try to determine who is at fault. Instead, they look at the drivers who had the collision. Drivers who drive more expensive cars are always more at fault, no matter what happened, and drivers of less expensive cars are less at fault, no matter what happened.

[6] Sometimes, the drivers of expensive cars would pay most of the damages and the drivers of cheap cars would pay only a modest amount. Or sometimes, the drivers of expensive cars would not only pay all the damage, they would pay for the victim’s hospital bills, pain and suffering, etc.

Rules 5 and 6 have two things going for them. First, they are easy to apply and understand: all you have to do is get a blue book value for each of the cars, and then you can figure out who is at fault, and perhaps even the degree to which she’s at fault. In other words, they are rules that are difficult to be ignorant of (because they’re so simple). Second, there is a prima facie sense of justice to the rules: people who have more expensive cars generally can afford greater costs, while people who have less expensive cars generally can’t, so it’s only fair that the rich drivers should pay more while the poor drivers pay less.

However, if rules 5 and 6 became the rules of the road, then there would be unwelcome and predictable consequences (there would also be some unpredictable consequences; for obvious reasons, I can’t delve into those). To wit:

Rich Drivers’ Behavior

  • Drivers of expensive cars would try not to drive their cars, except in areas where the vast majority of the cars had similar values.
  • If there were no such areas, then they would probably try to refrain from driving.
  • If they couldn’t refrain from driving, they would drive extremely cautiously.
  • Alternatively, they would buy cheap cars and drive those, or they would hire someone who owned a cheap car and let him drive them.

Poor Drivers’ Behavior

  • Drivers of cheap cars would become significantly less cautious when driving.
  • Drivers of cheap cars would prefer to drive in areas with expensive cars.  
  • Some drivers of cheap cars would seek out expensive cars to hit, in the hopes that they’ll get such a large pay-out that they become rich. (Unless they’re nuts, they would do this as cautiously as they could while still requiring compensation; but remember, some people are nuts, and remember as well that even sober-minded people make mistakes when they’re desperate.) 

Car Producers’ Behavior

  • The cost of expensive cars would plummet, and the cost of cheap cars would increase.
  • Or perhaps game theory – they would reach an unstable equilibrium: the expensive cars’ value would decrease (because they’re now less valuable) but would then increase (because the expensive cars are, after all, better cars) and then decrease, and so on.
  • Probably, though, expensive cars would stop being produced in the same way or in the same number:
    • Maybe expensive cars would simply stop being produced; after all, why produce a car that will be someone’s target practice or that will constantly have to be in the shop?
    • Or maybe they would continue to be produced, but simply would become significantly hardier.
    • Most likely, I think, they would continue to be produced, but in such a way that it becomes impossible to tell cheap cars from expensive cars. To an outside observer, every car would look like a beater, but on the inside, some would have the finest German engineering.
  • In addition, it’s quite possible that a market would develop to produce different cheap cars, for instance:
    • Cheap cars that are both extra safe to their drivers (at least such that they don’t cause death or permanent injury) and extra likely to cause terrible damage. The producers would be incentivized to make cheap cars that are (relatively) safe but fragile. Or maybe …
    • Cheap cars that can detect which cheap-looking cars are really expensive, or how to hit an expensive car in such a way as to maximize damages.

If the rules of the road were put in place precisely for the two reasons I gave above –- because they’re easy to apply, and because they advantage previously disadvantaged people -– then the drafters of these rules would not be pleased with either rich drivers’ or car producers’ behavior. So, they would probably try to institute new rules to curb rich drivers’ behavior.

For example, they might say that rich drivers can’t simply choose not to drive anymore: perhaps they would insist that they drive at least once a day. After all, we need rich people to get to their jobs as well. Or they wouldn’t want rich drivers to set up places where only rich drivers could drive. Such a situation would ghettoize the poor cars’ drivers, cutting them off from the services that rich drivers patronize. Or maybe they would forbid rich drivers hiring poor people to drive them. Or maybe they would require all cars to have their price plastered on the side so that cheap-looking expensive cars are easily identifiable (which would lead to a black market in fake price tags).

On the other hand, advocates of rich drivers wouldn’t sit on their hands. They would fight these changes to the rules of the road in whatever way they could. They would point out all the fatalities caused by poor drivers. They would focus on all the cases of poor people intentionally driving recklessly in order to undercut sympathy for the poor drivers, and so on.

In other words, though there are good reasons –- truly! –- to replace rule 4 with rules 5 and 6, there are three gigantic, negative consequences that outweigh eliminating rule 4. First, the inauguration of rules 5 and 6 leads to widescale dissimulation. The rich drivers pretend to drive cheap cars, the poor drivers try to manufacture fake car accidents to make themselves rich, and car manufacturers do what they can to satisfy both parties.

Second, a huge tussle breaks out over what the rules of the road should be. A lot of political and psychological energy gets invested in what the rules of road should be, not to have rules of the road that are safe, but instead to have rules that advantage rich or poor drivers.

Third, and most important, people forget what the point of having roads and cars is. The point is to enable safe, convenient transportation for lots of people. It’s important not to understate this. Yes, getting from point A to point B isn’t sexy, but it’s incredibly important. Think of the massive disruptions in people’s lives if they’re constantly worried about being crashed into or if they’re constantly on the lookout for targets. People need to go places! Yes, some people will be more disadvantaged than others, no matter what the rules are. But, given the point of rules of the road, inequities are less important than having efficient roads. If you have to choose between a system that focuses first and foremost on achieving equity rather than efficiency — at least when it comes to transportation — then what you’ll get is more lying, more fighting, and reduced efficiency, even if you do get more equity. And it’s not even clear that you’ll get more equity.

Of course, no one has talked about changing the rules of the road in this way. But obviously, people have tried to change –- or perhaps have successfully changed –- the rules of discourse. Consider a couple of rules that seem, from my limited vantage point, to be fairly widespread:

Rule I: Intentions don’t matter; consequences do.

Rule I looks a lot like my rule 5. It says that, regardless of what you meant when you said something, if it harms someone (i.e., if it causes offense, or triggers them, or something similar), then you’re at fault.

But of course, matters aren’t so simple. If a progressive offends a bunch of Trump-lovers, their offense is not important. After all, these are people who are not marginalized, but rather in possession of quite a lot of power, and have been for some time. In other words, they’re like the drivers of expensive cars. Even if they were the ones who suffered the accident, they’re at fault. So let’s add a new rule: 

Rule C: not all consequences matter equally; the consequences accruing to the relatively marginalized matter more than the consequences accruing to the relatively empowered.

This is somewhat similar to my rule 6: when tempers flare and feelings are hurt, the way to figure out who is at fault — i.e., who should bear the consequences or at least apologize —, you have to figure out who has the more expensive car — i.e., who is less marginalized.

There are good reasons — truly! — to have inaugurated rules I and C. Regarding rule I, it’s harder for more marginalized people to hold more empowered people to account in an argument. Often, the rules of discourse are, arguably, “set” by the powerful, and the powerful, having more resources and energy at their disposal get to know the rules of discourse better than the marginalized. This is one reason to simply look at consequences rather than intent: intent, being invisible, is easy to finesse; consequences, being visible, are not. [1]

Regarding rule C, the powerful are more able to suffer consequences of an inapposite remark than the weak. If you’re rich, losing your career often means starting a new one. If you’re poor, losing a job often means not making ends meet.

But once you have rules I and C in place, you start to get a lot of dissimulation. You incentivize people to lie about how hurt they are. Moreover, you incentive people to become more easily hurt. If having an egg-shell skull means you receive more compensation from the court of law, having a paper-thin skin means you get more support from the court of public opinion. Similarly, you incentivize powerful people to pretend to be marginalized, or to have inauthentic friendships with marginalized people. And people from majority groups who don’t want either to lie or to suffer try to refrain from talking altogether.

This, of course, leads to new rules, like “silence is violence”: in other words, refraining from discourse is not an option; you have to speak your piece, subject yourself to the new, strict liability domain of  discourse, and hope that you don’t accidentally center yourself or marginalize others. But unless you pay attention to the flurry of new pronouncements, you will center yourself; you will marginalize others.

Not surprisingly, this leads to a huge battle over the rules of discourse. Are Jews white? Are Arabs? Are Asians white-adjacent? How have I been marginalized? How have I been traumatized? What counts as marginalization or traumatization anyway? Is there a cancel culture or is it an accountability culture? I better do my research, and I have to pick a side!

And what is the point of discourse, anyway? Well, of course, there is no one point to discourse, just as there is no one point to driving. Some people talk to vent, and some people drive to get away. But there is clearly a main point to discourse, just as there is for driving. The main point of driving is transportation: going from one place to another. The main point of discourse is communication: one person sharing information with another.

And this is hugely important! The more burdensome you make discourse, the more you will make people not want to communicate, except with their intimates. Why talk to strangers when they have good reason and some ability to want to smash you into a thousand pieces?

So, rules I and C, well-intentioned though they may be, have some lamentable consequences: more prevarication, fighting, and wasted energy, and less communication. And it’s not even clear how much more equitable they make things: how much do these rules actually help the marginalized?

I expect they probably do help them a fair bit. But the help goes more to marginalized people who end up in walks of life where discourse is crucial to career success: academia, media, government, management, the arts. Not so much soldiers, manual laborers, truckers, software engineers, doctors, waiters, etc. And it’s not clear that the help that’s given outweighs the social costs.

I am sure that the analogy between the rules of the road and the rules of discourse overlooks things. It is, after all, just an analogy. But the point of the analogy is to exhort us to remember what is the point of what we’re talking about, and to remind us as well that sometimes equity is not to the point.


[1] That said, matters are in reality not so clear-cut. Sometimes it’s actually pretty possible to notice a person’s intentions. On the other hand, many consequences are invisible –- e.g., when the CDC requires lots of expensive tests before a drug is approved, people don’t see all the people who died as a result of not being able to get the drug, nor do the see the people who would have died if the drug was not good but got approved too easily.


19 responses to “Rules of the (Discursive) Road”

  1. s. wallerstein

    You say that the main point of discourse is communication, people sharing information.

    Maybe it is for you, Robert Gressis. You strike me as an exceptionally well-intentioned and idealistic person.

    However, I don’t think that in the real world discourse has a main point. First of all, communication means many things: if I point a gun at your head, I’m communicating with you and in a certain way I’m sharing information too, but that’s not what you mean, I believe.

    For many people, the main point of discourse is to deceive. Does Putin speak to share information? Does Trump? Does Biden actually? Or do they speak to justify and rationalize policies which they never communicate frankly to the public?

    Does most advertising share information with the public? Do most salesmen or women?

    For so many people the purpose of discourse is to justify and rationalize whatever they’re up to. They’re so used to that they may have become unconscious of the fact that they aren’t sharing any real information.

    The list is long and I won’t bore you or others with it.

  2. This could all be true, and it would still be the case that making the rule-changes Robert describes would be a terrible idea.

  3. s. wallerstein

    I didn’t claim that it would be a good idea.

    It’s great to see you back and bitching!!!

  4. Bitching? I don’t think my remark could in any way be characterized thus.

  5. s. wallerstein

    I use the verb “bitch” in a gender neutral way to refer to “being exceptionally argumentative”, which I would say is one of your personality traits and one which I enjoy and value.

    Just yesterday when we were discussing non-conforming or individualistic people in reference to Mark English’s essay, I thought of you as a non-conforming or individualistic person, one who more or less follows his or her own codes or paths in life, even though superficially you don’t stand out, you don’t dye your hair some strange color or live an alternative lifestyle, etc.

    For me, being one’s own person is a positive value. Within certain ethical limits of course.

  6. “Of course, no one has talked about changing the rules of the road in this way.”

    Where I live, we have a version of rules 5 and 6.

    If a driver of a motorized vehicle hits a “vulnerable road user” (cyclist, pedestrian etc.), and the vulnerable road user is injured, the driver always and automatically has to pay the hospital bills etc. He also has to pay the damage to the clothes, the glasses, the hearing aid etc. of the vulnerable road user. It’s not necessary that the driver hits the vulnerable road user – having been the cause of an accident with a vulnerable road user is sufficient.

    Liability is irrelevant here. The driver has to pay, even if the vulnerable road user was at fault. The only exception is when the vulnerable road user deliberately caused the accident.

    Drivers of motorized vehicles grumbled a bit when the rule was introduced, but got used to it.

  7. Benjamin L. Perez

    “If a progressive offends a bunch of Trump-lovers, their offense is not important. After all, these are people who are not marginalized, but rather in possession of quite a lot of power, and have been for some time.” [Really? Ask Trump-loving (or even just non-“Woke”) staff working at elite universities or at Silicon Valley corporations if they’d agree with that statement. Indeed, in those contexts, who’s marginalized?] vs. “…the powerful are more able to suffer consequences of an inapposite remark than the weak. If you’re rich, losing your career often means starting a new one. If you’re poor, losing a job often means not making ends meet.” [Ironically, this actually helps explain why many non-rich individuals, of all phenotypes and pigmentations, not just so-called “whites,” have become pro-Trump (or at least anti-progressive, or at least anti-“Woke.”] Conceptualizing all Trump-lovers as “powerful” (or even relatively “powerful”), as opposed to contextualizing when some are indeed powerful (depending on context) vs. when others aren’t just not powerful but actually marginalized (again, depending on context), strikes me as one major weakness of mainstream left-of-center thinking about Trump, and especially about so-called “Trump-lovers” (and perhaps a major weakness of this interesting but perhaps strained analogy). All that said, thank you for thinking through and writing out this interesting analogy; although I’m pretty darn sure that the differences between transportation and communication are greater than the similarities, the analogy does provide a new way to think about all of this, which is always welcome.

  8. “If a progressive offends a bunch of Trump-lovers, their offense is not important. After all, these are people who are not marginalized, but rather in possession of quite a lot of power, and have been for some time.” [Really? Ask Trump-loving (or even just non-“Woke”) staff working at elite universities or at Silicon Valley corporations if they’d agree with that statement. Indeed, in those contexts, who’s marginalized?]

    I wrote this essay over a month ago, so I may be engaged in reconstruction rather than recollection, but if I recall what I was thinking at the time, I was writing that paragraph from the perspective of a progressive. I, personally, don’t think “Trump-lover” = “has a lot power.” There are just way too many exceptions to that rule for it to be anywhere close to accurate as a generalization. So, whatever I was thinking then, I certainly agree with you now. But I’m pretty sure I didn’t agree with that sentiment even then, and was writing from the perspective of the progressive in that paragraph.

    vs. “…the powerful are more able to suffer consequences of an inapposite remark than the weak. If you’re rich, losing your career often means starting a new one. If you’re poor, losing a job often means not making ends meet.” [Ironically, this actually helps explain why many non-rich individuals, of all phenotypes and pigmentations, not just so-called “whites,” have become pro-Trump (or at least anti-progressive, or at least anti-“Woke.”]

    That’s an interesting claim. Is it true? Let me be more specific: how many *working-class* individuals are *fired* because they are Trump-supporters? I would bet that most working class people aren’t even afraid to say that they support Trump because if they’re working class then, chances are, they aren’t around a bunch of progressives. That said, I wouldn’t be surprised if a lot of working class people don’t like cancel culture. But I don’t have a good sense of the empirics here.

  9. That’s really interesting! I wonder what were the rationales given at the time.

    I wouldn’t be surprised if there were many jurisdictions that had a version of the law. I’m not sure I would be against such a law, but the driver/pedestrian distinction is certainly one that’s much harder to game than the rich driver/poor driver distinction.

  10. Terranbiped

    Man, that’s the most cynical and myopic definition of communications and the human condition I’ve ever read. (I hope I’m not offending you:). You completely corrupted the innocuous truth of the basic definition that communication is a means of conveying information no matter your subjective take on semantics, accuracy or intent.

    Ironically, you were in a sense vindicated while being hoisted on your own petard when you used the word bitching to express your delight that Dan was, in your mind, back to his old self, willing to engage lively after his emotional hiatus. Perhaps being a third party observer or one usually more inclined to a less literal translation and sensitive to context, I knew exactly what the information was you were trying to relate. I was somewhat surprised that Dan took your word so literally and seemed oblivious to what I took as a rough masculine; glad your back, no worse for wear. It seems Dan unintentionally put you in the same basket that you seem so ready to put everyone else, even though, at least this time, you were being honest and trying to express information of good intent.

  11. Terranbiped

    1) Life and discourse are complicated and contingent
    2). People, societal customs and norms are complicated; fluid and dynamic through time and incident.
    3) The road to hell is paved with good intentions.
    4). The psychology of punching up and punching down
    5). The strength and perils of free speech.
    6) Unintended consequences

    Robert, I think that’s more or less what you are saying in a nutshell. Even if it was a long ride in an expensive car through a poor area, to get there 😊.

  12. Benjamin L. Perez

    Good point. Good question. Although I know a lot of people, including a lot of working-class people, who are afraid to voice their political opinions at work (most especially if they work in so-called blue states), I don’t know anyone who’s literally been fired for being pro-Trump or anti-Woke or whatever. Your good point, your good question, got me to do a bit of online research and, after about two hours of it, I was only able to find one nurse and two public school teachers who claim to have been fired for being pro-Trump. There’s a lot of stuff on celebrities, academics, and journalists (are journalists working class?) being “cancelled,” but not a lot on just regular folks being fired. Maybe the fear of being fired/”cancelled” is overblown? Maybe it’s just one more moral panic? Alas, moral panics seem to abound of late, Left and Right alike.

  13. I agree the driver/vulnerable road user is difficult to game, but I also feel it’s not the only relevant aspect of the law I’m mentioning. It has several characteristics that are interesting for measures that focus on equity rather than efficiency.

    1) The law is not perfect, but it works. In the year it was introduced, the number of dead cyclists on the road dropped significantly.

    2) Drivers of motorized vehicles can use the road like they did before, they just have to be a bit more careful. In that sense, it’s not a zero-sum game. It’s not as if something is taken away from them.

    3) It’s based on objective criteria. The criterion “motorized vehicle” is a proxy for the thing that’s really at stake (safety for vulnerable road users), but scientific research supports this choice.

    4) You don’t have to fill in forms to prove that you’re a vulnerable road user. It’s automatic.

    5) Intent is irrelevant, unless somebody tries to abuse the law (a vulnerable road user *deliberately* causing an accident).

    6) The law is focused and pragmatic. It’s not about curing all the ills of society. If I’m hit by car, the driver may be on the dole and my Bianchi race bike may be worth more than his 1997 Nissan, but he still has to pay my hospital bills etc. And rightly so. His car is a vastly more dangerous object on the road than my race bike.

    2) is perhaps a bit controversial. When the law was introduced, quite a few car drivers thought something *was* taken away from them, the God-given right to be the King of Road. But as I said, they got used to it.

  14. Rule I ‒ intentions do not matter, only consequences do ‒ is essentially correct. The bottom line is how to avert the badness in future, by finding the best intervention on its causal network. Intent is just a proxy/indicator for whether that agent’s behaviour is (easily) alterable.

    The problem in gratuitous offence-taking is its pure subjectivity. So its cure is not to evaluate any offending intent, but to require some objective, agreed, measure of the harm.

    Rule C ‒ bias the intervention according to wealth ‒ is indeed misguided: as a mismatch of response and cause. People who are ‘marginalised’ or ‘powerful’ are artefacts of the economic system in its broader operation. And targeting them individually does not address the inefficiencies that were the causes of their positions.

    The problem in enforcements weighing unfairly is in their being imprecisely aimed. So its cure is not to disregard all parameters, but to try to find the most effectually remedial ones.

  15. I always understood ‘bitching’ to mean a certain kind of complaining, which I don’t think I was doing. That’s why I was puzzled.

  16. s. wallerstein

    I haven’t lived in the U.S. for 45 years and my colloquial English may be a bit rusty. However, Terranbiped seems to have understood my meaning.

    There’s an Elton John song, the Bitch is Back, where he gives the word “bitch” a completely positive meaning, by the way.

    As for complaining, well, you do complain a lot. No one can accuse you of having an overly sunny view of contemporary society or of being a Pollyanna, if that term is still in use.

    I suppose that one could say that “bitching” is unjustified complaining and I would not say that your complaining is unjustified, even if I don’t always agree with it. Let’s see: I read once that Prince Charles has a servant who put toothpaste on his tooth brush for him. We could agree, I believe, that if for once Prince Charles has to put his own toothpaste on the brush and complains about how hard he has to work, his complaining is not justified. Your complaining is not like that. It has a social purpose, it’s social criticism, which one may or may not be in agreement with, but is clearly done in the name of what you consider to be a public good.

  17. Terranbiped

    You are correct that under normal circumstances “to bitch” is not a compliment. To kvetch, maybe not so bad.

    But, then again, one man’s righteous complaint is another man’s bitch.

  18. I certainly wasn’t offended. I just thought the term inapt for what I’d actually said.

  19. Equity – as in government trying to create equal outcomes should be completely abandoned in a diverse and free society. I think those who preach equity always talk about money. But money is not the only thing people value. People also value many other sings, time and comfort, just to name two. Some people will want to trade more of their time and comfort for money than others. Some people work hard and dangerous jobs and work 80- hours a week – and many make lots of money. I currently don’t want to do those things myself, but I recognize it is a free country so if people want to do that for money they can. I also know people that work very little and refuse jobs that are uncomfortable. I tend to work longer than them and deal with discomfort in my job in order to make more money than them. But those people seem happy and again its a free country.

    The downside of thinking everyone should make the same pay is not only that the people who work very hard will not be able to trade their time and effort for more money. It will also mean the people that would rather not work so much and live with less will not fit the mold either. If everyone is to make the same amount what about the person that is fine working much less and living with less? Will they not be forced to work more than they want or risk being seen as a leech?

    And then there is the point that the only way to really get equal outcomes is to give the state ultimate power to redistribute everything. I think many socialists act like they don’t understand this and act dumb but they know this very well and are power hungry. But that is another issue.

    My own view is let people work and make as much money as they want. It’s a free country.