Tuesday, 23 September 2014

Clear law is the ruin of a nation.

"Obsession with writing excessively detailed laws had made it impossible for real people to get anything done".  (This is a feature, not a bug for those politicians whose power and wealth come from writing loopholes in the obstacles they create. km)  

Image result for philip howardPhillip Howard     
writes trenchantly in The  Atlantic:

"Modern government is organized on “clear law,”the false premise that by making laws detailed enough to take in all possible circumstances, we can avoid human error. .... Law has gotten ever more granular. But all that regulatory detail, like sediment in a harbor, makes it hard to get anywhere. The 1956 Interstate Highway Act was 29 pages and succeeded in getting 41,000 miles of roads built by 1970. The 2012 transportation bill was 584 pages.
Modern law is too dense to be knowable. “It will be of little avail to the people,” James Madison observed, “if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” The quest for “clear law” is futile also because most regulatory language is inherently ambiguous. Dense rulebooks do not avoid disputes—they just divert the dispute to the parsing of legal words. 
"Nursing homes, day-care centers....(have) a maze of input-oriented regulations. “Food shall be stored not less than 15 cm above the floor”; “there shall be .09 recreational workers per resident”—about a thousand rules in most states for nursing homes.  Australia ...in the wake of scandalous revelations of poor nursing homes ... abandoned the thick rule book and replaced it with 31 general principles, for example to provide “a homelike environment” and to honor residents’ “privacy and dignity.” The result was an almost immediate transformation for the better.
Principles, ironically, are less susceptible to abuse of state power and gamesmanship than precise rules. One of the many paradoxes of “clear law” is that no one can comply with thousands of rules. With principles, a citizen can stand his ground to an unreasonable demand."

He also writes: "Shackling public choices with ironclad rules...dictating correctness in advance supplants human responsibility. ("Nothing that's good works by itself".) Responsibility is nowhere in modern government. Who’s responsible for the budget deficits? Nobody: Program budgets are set in legal concrete. Who’s responsible for failing to fix America’s decrepit infrastructure? Nobody."

He recognizes some rules need to be prescriptive but calls for principle and good judgement as the first face of the law.

Note: Howard's reference to Australia sounds appealing but a quick Google search didn't find it.  The link to his name at the top of the page points to his career and data..

1 comment:

  1. What are you trying to do; put the lawyers out of business?