The limits of law

By Legal Eagle

[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.

47 Comments

  1. Nick Ferrett
    Posted January 20, 2010 at 5:40 am | Permalink

    When I was doing my masters, I did a subject called “Theories of Property”. One of the main concerns was arriving at a definition of what constituted “property” under the law – you know, bundles of rights and all that guff.

    One proposition that was discussed was that property was limited to that which could practically be protected under the law. If it became economically unfeasible to protect something, it lost its character as property. So, one can see a time in the not too distant future where intellectual property in recorded music might no longer qualify because it is just completely impractical to protect.

    I know this is not exactly what you’re talking about, but it might provide some interesting research paths?

  2. Nick Ferrett
    Posted January 20, 2010 at 7:47 am | Permalink

    A friend of mine is doing a PhD on the topic of defining what the law means by property. He would probably still have the references to the articles. Will contact him and let you know.

  3. Posted January 20, 2010 at 8:12 am | Permalink

    An excellent post, thoughtful and thought-provoking. Though ‘myriad’ is an adjective, not a noun. 😉

  4. Sinclair Davidson
    Posted January 20, 2010 at 8:48 am | Permalink

    The police just don’t get it.
    http://www.theaustralian.com.au/news/breaking-news/cops-knew-about-crimes-against-indians-two-years-ago/story-fn3dxity-1225821527448
    We don’t want Indians to change their behaviour, we want criminals to change their behaviour.

  5. Posted January 20, 2010 at 9:51 am | Permalink

    LE, I read that article earlier today, and I was intrigued at the claim that “Australian lawyers are the most regulated professional group in the world”. Does that ring true for you?

  6. Nick Ferrett
    Posted January 20, 2010 at 10:36 am | Permalink

    Lawyers are very heavily regulated and, I think, beyond what is useful.

    For a long time, I’ve thought that part of what’s wrong with the legal profession is that governments spent a long time trying to turn the profession (at least the solicitors’ branch) into a more commercial operation. The sentiment behind that was essentially that commerciality implied competitive pressure on prices.

    The problem is that commerciality does not imply competitiveness. The result is that the junior branch of the profession has, in many places, come perilously close to ceasing to be a profession dedicated – as it should be – to fulfilling a role as a public institution.

    One major problem with trying to use competition to place downward pressure on legal fees is that there is a strong countervailing factor. Business competes strongly for the best legal talent by agreeing to pay very high legal fees. Those high fees are justified by the value of the undertakings in respect of which legal services are retained.

    The result is that in a relatively happy economic environment there is always going to be upward pressure on legal fees.

    There are other factors as well.

    One is that our various legislatures are lap dogs to the executives drawn from them and unquestioningly accept every piece of badly drawn legislation without any consideration to the litigation which will arise from it and the uncertainty which ambiguity in drafting creates.

    Another is that outside of commercial transactions and wills, people usually only consult lawyers in times of crisis where their bargaining power is comparatively low.

    Relatedly, the complexity of the law (see above censure of the legislature) means that the assessment of what a lawyer proposes to provide by way of legal services is next to impossible. When you redo your kitchen, you can talk to the builder about whether you want the granite bench top or the chrome taps or the oven to cater for a Kennedy wedding and you can understand when he says well this option will cost x and this will cost y. When you talk to a lawyer, the same analysis is rarely possible. Add to that mystery the fact that often the amount charged by your lawyer depends on how the other side to a transaction or litigation behaves, and the capacity to budget becomes next to impossible. It is why we often tell clients that starting litigation is a bit like grabbing a tiger by the tail.

    The complexity of the law and the capacity for legal advisors to be sued for negligence also impacts upon the cost base for solicitors. It is nothing like the overheads that doctors have for insurance and equipment, but it does mean that even though there is a glut of people who want to be lawyers and can get qualified, there is limited capacity to recruit them, particularly for the low return on investment which would be an incident of cheaper legal services.

    I know this has nothing to do with the original post, but it follows on from the discussion between LE and Jarrah

  7. Posted January 20, 2010 at 11:00 am | Permalink

    The way we were taught in law school was still based on some old antiquated notion that a lawyer can ‘know the law’ (as in all of it!). Otherwise, why bother having extensive, compulsory, black letter subjects in so many compulsory fields?

    The law is now extraordinarily complicated. The solution may not be so much in trying to remove all the law (go ahead, knock yourself out trying!), but to reconsider some basic underpinnings of our legal system:

    – the fatuous, irrational but still completely upheld ‘principle’ that ignorance is no excuse. Of course it’s an excuse!

    – the assumption that ‘people’ can arrange their affairs around the law, based on precedent. Quite the opposite- the doctrine of precedent creates uncertainty because you cannot rely on what is written in statute when there is a possibility that a case somewhere has found a different reading of it.

    – the assumption that people don’t have the right to expect the law to be upheld, unless they can afford lawyers.

    Not suggesting hurling the above into blackness without some nuance, some compromise, but I am suggesting that the actual reality should play a greater role in the application and understanding of all 3.

    As for ‘regulators’, interestingly, the regulation approach is generally championed by economics buffs because it is usually based on the notion of letting market players exercise some judgement in how to achieve regulation points (for example, output duties) with the regulator there to rein them in if needed.

    Tax isn’t a true ‘regulator’ sphere, it’s the most black letter sphere out there, courtesy of the assumptions judges have always woven into tax decisions (such as my middle assumption, above).

  8. Nick Ferrett
    Posted January 20, 2010 at 1:25 pm | Permalink

    I don’t think there is any easy solution. I think that as long as our politics is skewed to making a law every time a politician perceives it as a solution to a political problem, our legal system will remain so complex as to preclude cheap legal services. Competent legal services can only be provided by people who are highly trained. Additionally, those who aren’t specialists in a particular area will time bill for research done on areas of law with which they are unfamiliar.

    Those things create barriers to entry to the legal services market. We are unlikely to be able simply significantly to simplify our laws because of the political difficulty involved.

  9. Mr T.
    Posted January 20, 2010 at 2:32 pm | Permalink

    I know of two instances where changes in the Law have lead public behavior and technical innovation.

    Victoria was a leader in compulsory Seat belt wearing. At the time, most people were not in the habit of automatically putting on the seatbelt. Because of the law change most people got into the habit of putting on the seatbelt. My recollection is that enforcement came quite a bit later to catch the final 15 % who stubbornly resisted the “infringement on their freedom” (to be a vegetable).

    Because other juristictions followed Victoria, comfortable and better working seatbelts became important to the car builders.

    the second example was the compulsory wearing of a helmet when riding a push bike. Initially there was no enforcement. the aim of this law was at the law abiding middle class rump. For this group it changed the default position to wearing a helmet. It also was a strong argument that parents had with children. “It’s against the law to ride a bike without a helmet, so no helmet, no bike”

    Since that law was enacted, the price quality and comfort of bike helmets has improved dramatically.

    It is only recently have there been reports of active enforcement. Personally, any enforcement effort that catches Sam Newman is worth every cent.

  10. Posted January 20, 2010 at 2:52 pm | Permalink

    The marginal cost to Parliament of passing a new law is pretty close to nil.

    All costs to the politician, except in a few cases, are externalities.

    Perhaps politicians should be billed $1000 per page of legislation they vote for.

  11. Posted January 20, 2010 at 3:43 pm | Permalink

    Perhaps politicians should be billed $1000 per page of legislation they vote for.
    .
    🙂

  12. Nick Ferrett
    Posted January 20, 2010 at 3:59 pm | Permalink

    Jacques, I think that’s a fantastic idea. I think another good idea would be to make all state parliamentarians part time and only let them meet for about two weeks per annum. If they didn’t depend on their parliamentary jobs for an income I think they might be a bit more independent.

  13. Posted January 20, 2010 at 4:54 pm | Permalink

    If they didn’t depend on their parliamentary jobs for an income I think they might be a bit more independent.
    .
    The trouble there is that it would exclude anyone who didn’t have independent means. You might get a less compromised legislature but it would be very much a ruling class.

  14. Posted January 20, 2010 at 4:56 pm | Permalink

    I think a lot of legislation is about “being seen to do something”. When the public cries, “What’s being done about it?”, the Parliament can point to the enacted law. Who cares whether it actually works or not
    .
    Yeah it’s a particularly Australian disease. It could be cured by decent practical philosophy classes in school that explain basics like recessions and unintended consequences. Also perhaps the history of private associations. When you want somebody to do something often it’s best if that somebody is, um, you.

  15. Nick Ferrett
    Posted January 20, 2010 at 5:14 pm | Permalink

    Adrien, I don’t think that idea would limit parliament to those with independent means. On the contrary, I think it would mean that people who work in regular jobs would be able to participate. The two weeks a year could be a bit like time of for army reserve.

  16. Patrick
    Posted January 20, 2010 at 5:23 pm | Permalink

    First my own nit-pick. This part is a bit of a furphy:

    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.

    .

    There is nil overlap. Whilst I agree that we should continue the move to one Federal income tax Act, and indeed the first ‘new’ rewrites since the original 1997 bunch are being drafted now, this is not a material source of complexity.

    I will try and return to tax as an illustration of the themes raised here, but first I agree entirely with Lawyers are certainly not the most regulated profession – try giving financial product advice (lawyers are specifically exempt from these regulations) or being an accountant. For that matter consider being a Doctor.

    Relatedly, most purchasers of legal services (by value) are (or should be) well-equipped to assess what the lawyer is going to do, since they are in-house Counsel or senior management. Finally, I am simply not aware of the insurance and liability issues actually deterring anyone from law. I think it is the hours, hard work and peculiar intellectual demands that do that, coupled perhaps with the culture of many law firms.

    Back on topic:
    The broader point about complexity and the ability of the layman to understand the law is quite relevant. Arguably, the regulatory behaviour you are complaining about actually addresses this to a degree, where the law is complex, in part necessarily (because they want to pre-empt loopholes, etc). Regulators can use their powers of administration to publicise ‘safe harbours’, within which standards of conduct people are generally safe.

    Also, since, unlike legislators, regulators can caveat their publications, they can issue ‘plain-language’ summaries of the law.

    My concern with regulators arises primarily from them being vested with discretions. I am not sure how accurate Armagny’s point is but it is not quite what really happens. And tax most certainly is a regulatory area! Consider, for example, the application of the ‘arm’s-length’ standard ?

    In fact, whilst the FIRB is perhaps the ultimate illustration of this, tax and competition law are more widely relevant and thus particularly illustrative. Given the time (and investor-relation) constraints on a lot of transactions, practically speaking the ‘ASIC view’ or the ‘ATO view’ can often effectively substitute for the law, even where the law is not obviously discretionary (too much transaction-specific tax law is, though).

    Regrettably, the ATO and ASIC may not have the same view of the law’s intended operation as Parliament, nor may they apply the plainly better interpretation where this is contrary to their perceived aims. In a transaction context, court, even with the accelerated tax cases regime, is often unviable.

    A regulator can change opinions rather more easily than a law can change, too.

    ~ ~ ~
    On the broader consensus about laws being far too easy to pass, and also on the knee-jerk phenomenon, I couldn’t agree more. I don’t have any easy answers, except a more restrictive Constitution (and not any bullshit charter of rights – that’s an illustration of the problem!). It is a bit rich too that we are fussing about bankers’ compensation being too short-term whilst the consequences of politicians’ actions live on for decades!!

  17. Posted January 20, 2010 at 6:42 pm | Permalink

    A senior barrister I once worked with used to describe this phenomenon as ‘too many laws, too many lawyers’, and like everyone else here I think the problem is intractable. Suggestions like Jacques’s — and another one I like, inserting sunset clauses into legislation — will address a small amount of the problem, but none of these proposals will deal adequately with the basic issue: the great mass of laws already on the books.

    I am starting to suspect that the old ‘ignorance’ rule is becoming untenable too, armagny — it’s not just you! The UK is even worse than Australia for pointless and silly regulations, and I’ve grown tired over here of watching people who are completely honest and reliable be unable to start up in business because of the cost of complying with regulations. Indeed, the regulations are so pervasive that the law has become the main barrier to entry, not other companies or businesses, which feeds into Nick’s point above about attempts to make law more competitive.

  18. Posted January 21, 2010 at 1:07 am | Permalink

    The law is the worst case of legacy code in the history of software engineering, in other words. 🙂

  19. Posted January 21, 2010 at 1:09 am | Permalink

    Perhaps we should start handing out this book at law schools.

  20. TAust
    Posted January 21, 2010 at 4:06 am | Permalink

    We pass laws because we wish to change peoples’ behaviour.

    The current paradigm is that the legislation should provide the over-riding objectives to be achieved and the standards by which one can assess achivement of the objectives.

    Part of the legislation allows regulations to be developed.
    These should follow the same paradigm of objectives and standards.
    Invariably the standards become very precriptive rules because both the regulators and the regulated want to kbow where they stand,

    There is then the problem of repeated interactions between regulator and regulated.

    In developing legislation to change human behaviour the effective input of human behaviour specialists is not the norm.

    ANU has (or had) a group studying regulation of industries (mining safety legislation and nursing homes legislation)
    Braithwaite was one of the leaders.

    There has been a progression from prescriptive regulation to procedures regulation to concemtrate on the ethics of the organisation regulation.

    All types of regulation can be gamed against (and is).

    Hope these thoughts help.

  21. Posted January 21, 2010 at 11:06 am | Permalink

    There is quite a bit of internal government red tape slowing up the making of laws. If a politician wants to make them, then they’ll make them, and the costs go to the public ultimately as public servants under orders go about filing thick wads of justificatory verbage to get their project through.

    Bear in mind as well, painful as it may sound, in my experience the big law passers are generally the most competent ministers- they get on top of their portfolios, identify problems (as well as, yes, political opportunities) and do their job as legislators. New laws don’t usually add to the net number, rather they will very often supersede existing laws.

    “I am starting to suspect that the old ‘ignorance’ rule is becoming untenable too, armagny ”

    Well, noting the apologia I’ve strewn out above, if indeed there is only so much that can be done to reduce the number of laws, other approaches could include allowing judges to not apply the law in a particular case where a citizen could not reasonably have been able to understand what the law was by looking at it, or where the law/regulation/instument/obscure wanky case bearing little resemblance to the law it interpreted was not located in an obvious place (or referenced- Acts are now increasingly using footnotes to provisions that materially affect the application of a provision).

  22. Nick Ferrett
    Posted January 21, 2010 at 12:04 pm | Permalink

    We do have a mechanism, at least in the criminal law, for dealing with situations where a crime has been committed but the circumstances don’t justify punishment. The judge can decide that no conviction is to be recorded. That said, the discretion to do that is not normally exercised on the basis of ignorance but on the bases such as the youth of the offender or the lack of any previous criminal history.

  23. Posted January 21, 2010 at 2:56 pm | Permalink

    I don’t think that idea would limit parliament to those with independent means. On the contrary, I think it would mean that people who work in regular jobs would be able to participate. The two weeks a year could be a bit like time of for army reserve.
    .
    It’s simply not practical. The complexity of things can’t be reduced to just too many laws. Societies are complex, economies are complex. Many of us I’m sure would like to simplify it. I’m certain it probably can be simpler but how simple who knows?
    .
    A: No-one.
    .
    Why? Because things are too complicated and no-one understands all of it. 🙂

  24. Posted January 21, 2010 at 5:47 pm | Permalink

    Adrien: the complexity of society and economies have very little to do with the complexity of law. Consider the Amazonian jungle: huge amounts of complexity, no law (in the sense of enforced normative rules).

    Legal Eagle: you should read Yoram Barzel (whose key work I review here), I think you would find him helpful. Murray Horn’s book on why different regulatory structures are chosen is also enlightening.

    More generally, while entirely agreeing with Jacques Chester about the unfortunate incentives, I would point out regulators have a vested interest in complexity too, because it gives them valuable intellectual capital. The ATO is an excellent case study of this.

    Complexity also allows various benefits to be handed out to various groups. This all can get way beyond the functional: the Tax Office regularly cannot tell the small business I part own what our tax liability actually is.

    There is a wider accountability problem here. The more the law attempts to do, the less accountable any given bit of it is likely to be. The notion that systems of accountability are infinitely flexible and expandable just strikes me as silly.

    But if the purpose of the law is to “do good”, then there is no limit to it, for there is always more “good” to be done. A sense of the limits of law would also be a sense of the limits of policy and thus politics. Not a popular idea with its direct and indirect practitioners (the latter being those whose agendas they take to require political action).

    There is also a reflex effect. The more regulators do, the more people will respond to that, which creates more regulation–both to respond to the response and because politics acquires (in part in self-defense) more active indirect practitioners seeking their benefits.

    In one of the sensible bits of his otherwise rather silly Liberal Fascism, Jonah Goldberg points out that Bill Gates had hardly any lobbying presence in Washington. Until the Justice Department tried to anti-trust him. Now he has a very large and active lobbying effort. Which I doubt helps regulatory simplicity.

  25. Posted January 21, 2010 at 6:12 pm | Permalink

    TAust’s mention of Braithwaite isn’t idle, either — I covered a lot of his work during my BCL criminology course. One of his big studies demonstrated conclusively that 33 broadly drafted ‘standards’ for nursing home providers produced far better health and environment outcomes for both residents and staff than the sort of detailed regulatory framework (with 100s of separate standards) often employed. Proof positive — if it were needed — that simple rules are often best.

  26. Posted January 21, 2010 at 7:10 pm | Permalink

    (Jacques will get this para) – Perhaps laws/regulations should be written in something Alonzo Church would approve of, then checked for decidability using a turing machine before it comes into force. That’d ensure things got better.

    (For others) Software and regulations DO have similarities, so I’ll copy in a couple of bits from “The Tao of Programming” (<a href="(wikipedia article “>wikipedia article and online version)and you can search/replace in your own minds for the software legal-system comparison. I think SL will love “the law of least astonishment” concept

    The Law of Least Astonishment

    A program should be light and agile, its subroutines connected like a string of pearls. The spirit and intent of the program should be retained throughout. There should be neither too little or too much, neither needless loops nor useless variables, neither lack of structure nor overwhelming rigidity.

    A program should follow the `Law of Least Astonishment’. What is this law? It is simply that the program should always respond to the user in the way that astonishes him least.

    A program, no matter how complex, should act as a single unit. The program should be directed by the logic within rather than by outward appearances.

    If the program fails in these requirements, it will be in a state of disorder and confusion. The only way to correct this is to rewrite the program.

    Legal Systems v Tax Law

    There was once a programmer who was attached to the court of the warlord of Wu. The warlord asked the programmer: “Which is easier to design: an accounting package or an operating system?”

    “An operating system,” replied the programmer.

    The warlord uttered an exclamation of disbelief. “Surely an accounting package is trivial next to the complexity of an operating system,” he said.

    “Not so,” said the programmer, “when designing an accounting package, the programmer operates as a mediator between people having different ideas: how it must operate, how its reports must appear, and how it must conform to the tax laws. By contrast, an operating system is not limited by outside appearances. When designing an operating system, the programmer seeks the simplest harmony between machine and ideas. This is why an operating system is easier to design.”

    The warlord of Wu nodded and smiled. “That is all good and well, but which is easier to debug?”

    The programmer made no reply.

    I’m sure there are many other bits of that book (it’s short, and full of “koan-like” bits) that might appeal to legal types if they do the mapping between a legal code (operating system) and a law/regulation (program)

  27. Wayne
    Posted January 21, 2010 at 7:16 pm | Permalink

    The proliferation of law/regulation is made worse because each law or regulation is viewed in isolation. At the individual level they can be justified but if added to other law/regulation applying to a particular decision they often combine to leave no legal options.

    an example from Australia, the location of a new dwelling on a rural residential block,
    a) fire regulations remove the Nth through West aspect and ridges of the block from the potential house locations,
    b)” BASIC” environmental design codes, designed for urban areas, remove areas from a southerly aspect from consideration and combine with the easterly slope to dictate pier construction often nearly doubling the cost of construction.
    c) Rules about septic location, set off distances from neighbors or boundaries all can remove any remaining areas as an approvable site for the house.

    As a farmer we are weekly confronted with decisions where to comply with one law/regulation is to be liable for prosecution under another.

    The issue for many people is not awareness of regulation it is risk evaluation.

  28. Posted January 22, 2010 at 3:59 am | Permalink

    LE: Glad to help 🙂

    A nice example of how so much licensing regulation is anti-competitive where complexity is clearly part of the point. Not a bug but a feature.

    None of this is helped by the widespread belief that, really, political/government action is inherently more legitimate than private action, as I note here.

  29. Posted January 22, 2010 at 4:24 am | Permalink

    In the realm of tempting Legal Eagle with tangentially relevant reading, how about this paper?

    The 2005 U.S. Supreme Court decision Kelo v New London allows using eminent domain to transfer property from one private party to another when it serves a broadly defined public purpose such as economic development. This paper examines the effect of this doctrine on the size of state and local governments. In the leviathan model, constitutional constraints are needed to control government expansion. The Kelo decision removes one such constitutional constraint on how state and local governments gain command over privately owned resources. The empirical results show that the breadth of eminent domain power affects the size of the public sector; states that explicitly empower their local governments to use eminent domain for private economic development have larger state and local public sectors than those that do not.

  30. Patrick
    Posted January 22, 2010 at 6:07 am | Permalink

    For non-irrelevant reading, I recall not so long ago attending the US Supreme Court hoping to hear judgment and reasons in several contentious cases. On Ricci, I got lucky, on Citizen’s United, not so.

    But yesterday the Court did deliver reasons in Citizen’s United, and now we now that McCain-Feingold is as unconstitutional as (I guess most of us) we thought it was. As for reading:

    * Syllabus — 7 pages
    * Justice Kennedy’s Opinion for the Court — 57 pages
    * Chief Justice Roberts’ Concurring Opinion — 14 pages
    * Justice Scalia’s Concurring Opinion — 9 pages
    * Justice Stevens Opinion Councurring-in-part, Dissenting-in-part — 90 pages
    * Justice Thomas — 6 pages

  31. Posted January 23, 2010 at 8:12 am | Permalink

    Lorenzo – Adrien: the complexity of society and economies have very little to do with the complexity of law. Consider the Amazonian jungle: huge amounts of complexity, no law (in the sense of enforced normative rules).
    .
    I don’t see how the biological complexity of the Amazon rainforests has anything to do with complexity of modern society. The societies indigenous to the Amazon rainforest, I’d wager, have very simple rules and a very simple life.
    .
    Our economy contains amongst other things an enormous spectrum of sub-cultures, a huge mass of individuals who seek to commute to all sorts of multiple locations for all sorts of reasons and an economy that has complex and abstract mathematically generated forms of value that no-one understands at it’s heart.
    .
    If the idea that you can’t solve all problems with a rule would finally penetrate the gelatinous collective skull we could probably have a much simpler system that would make much more sense. I agree.
    .
    But the complexity of the law is the dialectic product of social and economic complexity colliding with the simplistic regulation default.

  32. Peter Patton
    Posted January 23, 2010 at 1:22 pm | Permalink

    I echo Jacque Chester’s brilliant suggestion to charge politicians for every word of legislation.

    One of the curious ‘doesn’t quite add up’ aspects of the claim that ‘deregulation’ caused the GFC, is the thousands and thousands of pages of statute and case law devoted to the buying and selling of financial securities in every western/market society. And the number has grown exponentially since the 1970s, not lessened.

  33. Posted January 25, 2010 at 11:55 pm | Permalink

    Adrien: my point is that social complexity does not require complex prescriptive rules to function. Attempting to create very particular benefits in a complex society requires complexity, but social complexity of itself does not. Consider traffic flows. The road rules really do not have to be all that complex, but can manage a mass of different vehicles of different types using the roads for a range of purposes even if common functions.

    The complexity of modern regulations is far more a function of political purposes than it is social complexity.

  34. Peter Patton
    Posted January 26, 2010 at 8:42 am | Permalink

    Lorenzo

    So true. In fact, regulation and legislation often add to complexity, as each new regulation/law changes the incentives, often in ways not foreseen by the legislators.

  35. Nick Ferrett
    Posted February 2, 2010 at 8:22 pm | Permalink

    Getting back to the complexity issue identified in your original post, there is an associated evil: ambiguity. Legislation is often so badly drafted that not only can people not understand what they’re obliged to do, their lawyers can’t give opinions with any degree of confidence.

    The problem is exaggerated because the extrinsic materials offer no assistance. Explanatory memoranda and second reading speeches are usually identical in their content. The extent of the explanation will usually be little more than a summary of the text.

    Complexity is then layered over the top of this problem of ambiguity. When the first draft is circulated, someone points out an unintended consequence which the draftsman failed to appreciate. Rather than question whether the provision should be removed, it is expanded to cope with that circumstance. The unintended consequences become manifold. Ordinary approaches to interpretation then kick in: does the fact that the legislature dealt with one class of circumstances and not another suggest ignorance or a specific decision?

    I get the sense that the legislative policy agenda of any government is driven largely by the bureaucracy. The lack of commitment of ministers to legislation they introduce results in the lack of any elucidation in their second reading speeches of the policy objectives they are pursuing.

    One good example of thoughtless drafting is the Property Agents and Motor Dealers Act 2000 (Qld). Amongst the myriad transactions it regulates is the sale of residential property to consumers. It requires an elaborate regime of disclosure and makes the enforceability of a contract dependent upon delivery of documents (including required disclosure documents) in a particular order.

    In its first iteration, it required that the disclosure document be fixed to the bundle of contractual documents as the top sheet. The Supreme Court interpreted this to mean that the disclosure document had to be stapled or otherwise physically fixed to the bundle. As a result, delivery of offers and acceptances by facsimile had to be abandoned until amendments were made.

    The consequence of not delivering a disclosure document with the contractual document before it is signed is that the buyer can (subject to some issues) avoid the contract after signature. This, in turn, raises the question of what happens when you’re entering into the contract as the result of exercise of an option contract. Through some slightly tortured reasoning, the Court of Appeal decided that the disclosure document had to be delivered with the option agreement rather than the actual contract to convey the land.

    It has raised other unintended consequences as well. Because the Act says that a contract does not bind the parties until the disclosure document and signed contractual documents have been delivered by the seller back to the buyer, a seller who failed to deliver the documents tried to rely on it to avoid specific performance. The language of the statute seemed to say that the seller could do that, but (again through tortured reasoning), the Supreme Court came to the conclusion that the provision requiring delivery of the documents by the seller to the buyer bestowed a private right capable of waiver: Blackman v Milne [2007] 1 Qd R 198.

    How a legislative requirement meant to protect someone against that person’s presumed inability to make decisions in his/her best interests can be considered a private right capable of being waived is not clearly explained. One might think that as a matter of statutory construction, the apparent assumption that the person cannot protect their own rights would tend against the conclusion that the legislature intended an ability to waive (the more so, given that there is specific provision allowing for waiver of certain other rights in defined circumstances).

    That passage involves a bit of a trip off the reservation, but the example is a good one. It’s a little bit of anecdotal evidence of the impact of badly written legislation. It’s worth noting that the case of Blackman v Milne I mention above was not decided on the basis of an argument advanced by the successful party, but rather by a proposition plainly invented by the judge to try and make the legislation workable. It then raises consequential questions about judicial activism in response to bad legislation. Of course, that in turn raises questions about the damage it does to separation of powers.

2 Trackbacks

  1. By skepticlawyer » Political correctness on campus on January 21, 2010 at 8:36 pm

    […] skepticlawyer Just another Ozblogistan weblog Skip to content AboutFAQFriendly & generous typesDonate « The limits of law […]

  2. […] As I have argued before, there is a tendency, when something is wrong in society, to exclaim, ‘There should be a law against it!’ However, making a law does not necessarily fix the problem. In fact, sometimes law can actually exacerbate the problem and produce the very outcome it was attempting to prevent. I gave a talk to the Adam Smith Society some months back in which I considered the limits of law (full footnoted version available from the Club’s website here). I am going to discuss a few of the issues I raised in that talk about why we should not necessarily presume that more laws are a positive thing. […]

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