[Update: now cross posted at Online Opinion - 22/1/10]
One of the things that I’m thinking about in my PhD is the limits of law. What can law change? And more importantly, what can’t it change? Who enforces the law? Can we change the way in which people behave by regulating them more?
Via CoreEconomics, I came across an article in The Australian about the rise of regulators. Robin Speed, President of the Rule of Law Association of Australia, decries the growing complexity and volume of legislation and regulation in Australia, and then goes on to say:
As the number and complexities of laws increase, there is a corresponding decrease in knowing and voluntarily observing the laws by the community. And, as it becomes practically impossible for the community to know, let alone apply the law, ensuring compliance is passed to the persons charged with administering the laws – such as ASIC, ACCC, ATO – the regulators. However, it is not practical for the regulators to enforce the mass of laws against everyone, nor even against one person, all the time. They therefore announce how they will apply the law, impose penalties on those who act otherwise, and reward those who act in accordance with their blessings. A few are prosecuted as a warning to the rest of the community. In this way, the rule of the regulator begins.
The result is a fundamental shift in the relationship between the individual and the law. Increasingly, the relationship is not of the individual knowing and complying with what the law states, but of knowing and complying with what the regulators state the law states, and then knowing the extent to which the regulators will apply the law as stated by them.
Personally, I do not think empowering regulators in itself is necessarily a bad thing. You need to have someone to enforce the law, otherwise it is “toothless”. Private citizens often cannot afford to institute legal actions, and thus it is useful to have a regulator who can hear complaints from the public, apply the law, prosecute actions against those who contravene the law, issue policy decisions and so on. Nor do I think that the presence of discretion on the part of regulators is necessarily a bad thing, as long as there are appropriate checks and balances to ensure that it is not misused. Nonetheless, it is important to guard the guardians, and make sure that any discretion is appropriately exercised. I worry about laws which take away basic liberties.
I would agree with Speed that the tax laws are too complex, for example. Not even tax experts seem to know what they mean at times. It doesn’t help that there are two parallel Federal Acts, both of which apply, not to mention all the State tax laws as well. My thesis is an attempt to clean up certain inconsistencies in contract law and to make it clearer for everyone what their obligations are and what will happen if they breach their contract. It’s one of the reasons I like restitution law – as I’ve explained in an earlier post, I think restitution lawyers have “tidy minds”. Simplification of the law is a worthy thing and worth pursuing. I’m all for it. The law is an organic beast, something that naturally becomes untidy and needs spring cleaning at regular intervals. But like Stephen King at CoreEconomics, I think Speed is pining for a world which never existed – a world when everyone knew what the law was and followed it.
As Speed says, part of the problem is that no matter how many laws are passed, and how many regulators you have, some things can’t be regulated by law. But that’s not a problem with the regulators per se. Nor is it even a problem with the complexity of laws. It’s a problem with the nature of law. As Skepticlawyer has said (with an incisiveness I can only envy) in one of her posts:
In the case of conservatives and social democrats, however, both groups engage in major legal wish-fulfillment: they think they can ignore ‘means-end’ limits. That is, they seem to think that passing a law will make it so. If wishes were horses, people, beggars would ride. They think they will, for example, be able to make abortion illegal (or greatly restrict access to it) with no social or economic comeback, or impose salary caps on business executives without hemorrhaging talent overseas or to other industries.
This is utter hokum.
Law has limits. Legal officials at various times and in various places have objectives and they need to find the best way of achieving them.
[Have a read of SL's post if you haven't before. I think it's a corker.] Sometimes, as Sinclair Davidson has pointed out in comments to the CoreEconomics post, regulators can make a difference to laws when they enforce them. As King and Davidson point out, police are regulators, and whether they choose to enforce laws will have an effect on the extent to which people choose to follow those laws. If you know that you are not likely to get away with certain conduct, you are more likely to choose not to do it. Nonetheless, there will always be people who break the law regardless of how harsh the penalties are. That’s just human nature. You have to get a balance between enforcing a law to a level where it is effective, but not enforcing it to such an extent that you become a police state, with every action scrutinised and judged by myriad regulators.
It also has to be recognised that lack of knowledge is not the whole problem either. There are also people who will break the law regardless of how well they are aware of it.
Sometimes a law may be enforced and regulated, but ultimately that law is a failure, and people just ignore it. That is usually a sign that the law is out of keeping with the general social consensus. If the government passed a law tomorrow that we all had to measure our oxygen intake and pay $5 for every 20 breaths we took, I’m willing to bet that very little enforcement would take place on the part of regulators (even if there was a regulator for every person), and that very few people would obey that law. This is because basically, everyone would think such a law was ridiculous and not worth keeping. And people are (by and large) sensible and reasonable beings. They won’t keep a law which makes no sense, particularly if moral, social or economic incentives are against them keeping that law.
So, in Speed’s example of convicts who stole bread to eat, the perpetrators knew they risked getting hung or transported, but hey, they were going to starve anyway, and everyone else they knew was doing the same thing, so it was worth taking that risk. Perhaps they also calculated the risks of being caught as well. It’s all about balancing the different incentives. For me, there would be no incentive to steal in normal circumstances. This is because I am a risk averse person. Furthermore, I have a moral objection to taking other people’s property (I’m a property lawyer, among other things). In terms of disincentives, I would not be able to practice law again. If I were caught, I would be fined, or possibly go to gaol. There is nothing in my current situation which I want badly enough which would lead me to take the risk that I would be caught. On the other hand, if my children were starving and I had few other options, the tables would turn, and there might be sufficient incentive for me to steal. My moral, economic and social objections could be overridden.
A good law has to set up a good system of incentives to keep the law and disincentives to break it. It works best if there’s already moral, social and economic incentives for the law to be followed. Of course, sometimes the law itself moulds the moral, social and economic incentives, and people’s attitudes change as a result of the law. I was remembering today about an incident when I was 11 or 12 where my primary school teacher acted towards my Muslim friend in a discriminatory way that would simply be unacceptable these days. People’s attitudes change as a result of law. Sometimes it’s a chicken and egg thing – did the law change the attitude, or did the attitude change the law? But if people aren’t responding well to a particular law, there’s a fair chance that no matter what the motive behind it, how well known it is or how well regulated it is, it is not a “good” law. When I say “good” law, I don’t mean that it is immoral, but simply that it just doesn’t do what it is supposed to do.
So – if one is talking about the decrease in compliance with laws, it is not simply the actions of regulators or the difficulties in finding out what the law is which is an issue. It is the nature of law itself, and the limits upon what law can achieve. Regulators themselves do not necessarily render a law ineffective, and in some cases, they can render a law more effective. It depends upon myriad factors, including how they are used, and what law they are enforcing.
If I had my “druthers”, I’d educate everyone about basic law, and what it can and can’t do. It’s one of the reasons I started blogging. Just for starters, though, I’ll try this post. When you say, “There should be a law against it,” think about whether it would be effective or not.