Quality not quantity: sometimes more law doesn’t mean better

By Legal Eagle

Via Jim Belshaw, I have become aware that the Federal government is trying to convince people that it is doing a good job because it has passed more legislation than the previous incumbent government. Jim pointed me to a post by Noric Dilanchian, in which Dilanchian notes that most people think more law is a good thing, and continues:

That opinion was accepted as a given in this week’s Q&A program. Federal Infrastructure Minister, Anthony Albanese, in defending the Gillard Government said:

“And in spite of some of the criticism and people saying things aren’t working, it’s 153 pieces of legislation we’ve carried in the new parliament. No legislation defeated, not a single amendment carried without government support. John Howard only carried 114 pieces of legislation in his first year. So the parliament is functioning. The government is functioning.”

So Minister Albanese wants us to accept that 153 pieces of legislation is better than 114.

Dilanchian has five points to make: (1) There is a need for simplification of the law, and most lawyers cannot know basic law outside their specialisation, let alone laypeople; (2) There are structural impediments to simplification; (3) Understanding law is best achieved by visualisation; (4) Understanding law is best achieved by training; and (5) Software is needed to help unravel current laws. [Incidentally, I hope that Dilanchian would enjoy my classes in which I make frequent use of visual aids including flowcharts and diagrams. My rule of thumb: if a law can’t be reduced to a one-page flowchart, then it is too complex and should be scrapped. One of my tests for my posited doctrine in my thesis was whether I could reduce it to a one-page flowchart.]

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.

There are two limits on the reach of law:

  1. ‘Means-end’ limitations or practical limitations: i.e. what can the law actually achieve?
  2. Normative or principled limitations: i.e. what kinds of behaviour should the law legitimately regulate (regardless of whether it is practically possible or not)?

Philosophers tend to concentrate on the latter, but I think that the former is important too. Sometimes laws don’t actually work; sometimes they actually make things worse. And I really don’t see the point of a law which doesn’t work, or worse, a law which does the very opposite of what it intends to do.

There are a number of issues which may affect the reach of a law, including whether or not the law appeals to the self-interest of those whom it seeks to control, whether the law is in accordance with social mores, whether the law encourages pale criminality and whether a law prevents both detrimental and beneficial conduct in society.

First, looking at self-interest, the example given by Levitt and Dubner of the Americans with Disabilities Act is instructive. The ADA had the creditable aim of protecting the civil rights of people with physical and mental disabilities. It required changes in the way that both businesses and the government operated so as to allow disabled people have full access to and full participation in every aspect of society. It sought to remove barriers that denied individuals with disabilities equal opportunity and access to jobs, public accommodation, government services, public transportation and telecommunications. However, empirical evidence suggested that after the enactment of the ADA there was a sharp drop in the number of disabled people employed. Basically, the law was not drafted with the self-interest of the employers in mind. It actually produced disincentives for people to employ disabled people, as it created costs and obligations which had not been there previously. Thus it produced precisely the opposite result of what was intended. This does not mean that we should refrain from legislating to help disabled people or to make life easier for them. But we do need to think very carefully about whether the laws we draft achieve what we desire. As Dubner and Levitt say, ‘…[I]f there is any law more powerful than the ones constructed in a place like Washington, it is the law of unintended consequences.’

Further, as Joseph Raz has noted, laws which are not in accordance with the beliefs of the general populace are less likely to be adhered to, and conversely, laws which accord with the general mores of society are more likely to be followed and are easier to enforce. If a law does not reflect societal beliefs, then it will take more effort to enforce it. Of course, there is a chicken and egg relationship between law and social mores. Sometimes laws can effect a change in social mores, particularly if it reflects the way in which society is moving generally. I would argue that the Racial Discrimination Act 1975 (Cth) is an example of such an Act, and that it has changed social beliefs, but that legal sanctions also provided an additional reason not to contravene societal mores. Nonetheless, sometimes one cannot change attitudes no matter what the law says. If people are not responding well to a particular law, there is 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. By “good” law, I do not mean that it is immoral, but simply that it does not achieve what it is supposed to do.

I have already noted self-interest as a factor which had to be taken into account in making an effective law, but humans are ornery beasts. Sometimes making things forbidden makes them more attractive, a phenomenon Freud named ‘pale criminality’. Thus, again, paradoxically, legislating to prevent a particular kind of behaviour can have exactly the opposite outcome. I think that it is possible to speculate that laws intended to prevent drug use appeal to pale criminals, and that drug laws could be counterproductive.

Finally, sometimes the law cannot prohibit a greatly undesired activity without affecting a greatly desired activity at the same time. This is the problem of ‘mixtures’: you may deter some bad behaviour and some good at the same time. An example of this is Senator Conroy’s proposed Australian Internet Filter. While the filter may prevent paedophiles from accessing child pornography, it may also prevent people from seeing socially useful websites. I note that this blog has been “banned” on the computers at my grandparents’ Uniting Church retirement home by the stringent Net Nanny. I suspect this is because when I was 20 weeks pregnant with Eaglet No. 2, I put up a post with an ultrasound photo in which the obstetrician had circled and labelled the genitalia to prove that he was a boy. We also had a post discussing the photography of Bill Henson and the legal issues arising from that. As a result, our humble blog has been branded “pornographic”. Ultimately, the law is a blunt instrument. It may prevent both positive and negative behaviour. Or it may produce both positive and negative outcomes. One has to take care with it.

In The Wealth of Nations, Adam Smith criticised excise taxes and attempts to prevent smuggling:

…[B]y the forfeitures and other penalties which those unfortunate individuals incur who attempt unsuccessfully to evade the tax, it may frequently ruin them, and thereby put an end to the benefit which the community might have received from the employment of their capitals.

An injudicious tax offers a great temptation to smuggling. But the penalties of smuggling must rise in proportion to the temptation.

The law, contrary to all the ordinary principles of justice, first creates the temptation, and then punishes those who yield to it; and it commonly enhances the punishment, too, in proportion to the very circumstances which ought certainly to alleviate it, the temptation to commit the crime.

Smith was clearly aware that the law has limitations in achieving particular aims, and that, at times, it may end up encouraging the very thing it seeks to discourage. No doubt his observations were enhanced by his stint as Commissioner of Customs. If we take Smith’s example, we can see that all the points I have raised may operate to explain why excise taxes and anti-smuggling laws did not prevent smuggling or even benefit the community more broadly. First, it was not in the self-interest of smugglers to pay excise taxes, and it was in their self-interest to make a profit by selling smuggled goods more cheaply. The taxes actually created an incentive to smuggle for individuals and the local community. Secondly, it could be speculated that society in general did not have a strong belief in the importance of paying excise taxes and believed that the anti-smuggling laws were the kind of irritating laws which existed to be broken. Thirdly, presumably smuggling appealed to those ‘pale criminals’ in society, who enjoyed outwitting the customs authorities and breaking the law in this way. Finally, by outlawing smuggling, presumably the law made illegal some entrepreneurial activity which was beneficial to society.

So the moral of this story is – more law is not necessarily a good thing, particularly if it is not drafted carefully to ensure that it does the things it is supposed to do rather than making things worse.

Consequently, arguing that “we passed 153 pieces of legislation, John Howard only passed 114 in his first term” is the worst sort of bean-counterish argument I’ve ever heard. (I should note that I’m not being partisan here — I’d criticise any party which made this kind of statement, Labor, LNP, Green, Family First, or Monster Raving Looney). If those 153 pieces of legislation are ineffectual and produce perverse outcomes, then it would have been better not to have any legislation at all. By contrast, if the 153 pieces of legislation are fine Acts which are carefully drafted and necessary, then the government is to be commended. I don’t know whether the legislation is good or bad, but sheer volume is not a virtue in itself.

I would also take Dilanchian’s point that we need to simplify the law, not complicate it further. Lawyers have a tendency to think that complexity is a good thing. However, we cannot provide for every eventuality and we cannot always draft for it. I think that there should be a kind of Occam’s Razor for lawyers, law students and academics: if one can explain the law simply, and with less words, this is a good thing.

Perhaps one of the reasons for the growing complexity of the law is because of the growth of electronic media. Essentially, electronic media make it vastly easier to draft laws, and access the law. But it’s almost too easy. I look at some statutes and I feel that they should be overhauled totally, or razed to the ground and started again because they have accreted so many offshoots and amendments. (Of course I am by nature a common lawyer with a love of case law, so I am a bit suspicious of statute in any event and rant at any Act which has section numbers like s 57XBA(2)(iv)).

In any case, please don’t uncritically accept the argument that a government who passes more laws is a better or harder working government. Maybe it is, maybe it isn’t. But quality, not quantity, is what counts. And laws which are not drafted carefully can have perverse outcomes. In addition, a badly drafted law which obfuscates matters or makes the law more confusing and complex is unlikely to be beneficial for society.

Postscript:

Note to people who may froth at the mere mention of Adam Smith’s name: unlike SL, I am not a libertarian, but I am socially liberal, and importantly, I am very much a pragmatist who cares about whether law works. I also believe that the law should step lightly rather than heavily if it can still achieve its aim by doing so. I avoided Adam Smith during my teens and twenties because I was put off by Margaret Thatcher’s admiration of him, but in retrospect, this was very foolish. His writings on law are fascinating.

44 Comments

  1. Posted July 1, 2011 at 8:14 pm | Permalink

    some acts are beauties though, where the act amends another act, and the contents page alone or perhaps the title, even without explanatory memoranda, etc, etc, could have more words than the act itself which might read something like:

    “Better Lives Act 2011, an act to amend the Boringly-but-accurately-named-act 1963”

    1. ‘In section 1(b).iii, replace “and” with “or”‘.

    Ok, so there probably isn’t one /quite/ that short… But, you do get acts that are equally devoid of context about what they actually relate to, and you can’t see the consolidated versions of what the amended acts would look like easily without patching the old act yourself.

    But, … And it’s a big but… wanting acts to be rationally able to lead to stated ends? The statutory regs are just as bad, let alone executive decisions. And, to be blunt, how many acts with “advertitles” (think PATRIOT as an example, or “Work CHOICEs” to use the stress spoken by the proponents) are merely cover for an entirely different agendum, or even one where the details are intentionally the opposite of the “advertitle”?

    The idea that more law is good law may well be misplaced, but the misleading laws are much more dangerous.

  2. kvd
    Posted July 2, 2011 at 6:01 am | Permalink

    LE thanks for a very interesting post, but as a retired beancounter I’d want to know a little more about the makeup of this mountain of legislation; after all, if we elect legislators, and they actually legislate, then that’s got to be an example of them fitting in with their job description – surely?

    There is a world of difference between “a bill for an act to do something entirely new” and a bill for an act to further clarify an earlier act” and a “bill for an act to fix up an earlier stuffup” – not to mention “a bill for an act to retrospectively change the criminality/taxability/future planning regimes”

    Otherwise, I totally agree that sheer volume of legislation is not necessarily a good marker for effectiveness 🙂

  3. kvd
    Posted July 2, 2011 at 7:12 am | Permalink

    [email protected] yeah, I was going to check them as well, but as you say…

    Thought instead I’d just rely upon the belief that surely the legislators have my best interests at heart.

  4. kvd
    Posted July 2, 2011 at 7:19 am | Permalink

    And anytime I’ve watched parliament, it’s always “the question is that the bill be put”

  5. Martin
    Posted July 2, 2011 at 9:17 am | Permalink

    Just to provide a context for the original remarks, I believe the minister was attempting to show that (while a minority government) the Gillard government was stable. It still wasn’t a very good argument but at least it makes a bit more sense in context. He added that there had been no amendments to which the government had not agreed and that was the real point of making the comment, I think.

  6. Posted July 2, 2011 at 9:17 am | Permalink

    [email protected] – you think they have your best interests at heart. I suspect, for many politicians, while it’s possible that might be the motivation for joining the party, with increasingly few noble exceptions, it’s advancement of the ideology or party room standing that becomes the driving force once in the parliament. The quality of government suggests you are wrong.

    [email protected]: The 2B2not2B classic, an opposite meaning, suggests stuffup of the first act (who voted for it – did they actually read it? What does passing without reading mean)? … Or… if making something the opposite, a repeal rather than an amendment would be more honest.

    I also love the preamble to the lot – “we stuff up by intent or stupidity, we can never be liable”. Imagine a contract with such provisions! Would you ever sign such a contract?

    If parliament is to (a) manage the acts governing the country and (b) provide controls over the executive (ultimately, by loss of confidence by the house), then there would be better debate on bills, and better attendance during debate.

    There is also a real danger of simplifying the acts … More and more details (and more devils than angels) of rules imposed by governments are moved to regulations or executive decisions. Same number of restrictions, greater arbitrariness, less oversight… Not good.

    But you are right in principle, and the claim for quantity over quality is here, as for most things, dumb, propaganda aimed at the dumb, or plain bad.

    Actually, assuming previous politicians were half competent, one should expect the vast majority of bills to address things that are new to humankind – the science and technology – something the politicians are hopeless at – think how many in the science community are screaming for legislators to come to grips with the issues.

  7. Posted July 2, 2011 at 9:26 am | Permalink

    So Minister Albanese wants us to accept that 153 pieces of legislation is better than 114.

    I’m not entirely sure that’s Albanese’s point. He was responding to the argument that “things aren’t working”, which I take as a reference to the claims that the minority government isn’t working and there is legislative deadlock due to the Greens and independants. The count of acts passed by parliament was used as evidence there wasn’t legislative deadlock.

  8. Posted July 2, 2011 at 10:36 am | Permalink

    LE, don’t you think that, as leader of the house and manager of government business, Albo was citing that statistic for a slightly different purpose than that for which you have taken it for a run?

    This is what he said:

    ” I’ve known Julia Gillard for 30 years. I met her at university. She’s a tough person. I think only Julia could have taken us through the current situation. She’s the right leader for the right time. When you need to negotiate out issues through a parliament in which the government doesn’t have a majority in either house, she’s doing that. And in spite of some of the criticism and people saying things aren’t working, it’s 153 pieces of legislation we’ve carried in the new parliament. No legislation defeated, not a single amendment carried without government support. John Howard only carried 114 pieces of legislation in his first year. So the parliament is functioning.”

    Of course, the statistic per se is pretty meaningless as a statement about either the quality or quantity of law or laws made because some Acts can be one-liners when others are as thick as the telephone directory.

  9. Posted July 2, 2011 at 10:37 am | Permalink

    Which actually means I agree with Desipis immediately above.

  10. Posted July 2, 2011 at 12:13 pm | Permalink

    the laws put up and passed were pretty much shuffling of papers rather the true productivity, nothing significant in policy debate where vision and communication were required. Perhaps parental payments was the one area where there has been actual advance, or at least, worthy of robust debate in parliament and public fora.

  11. kvd
    Posted July 2, 2011 at 12:27 pm | Permalink

    nothing significant in policy debate where vision and communication were required

    Just as I said [email protected]; the legislators have had due regard to my best interests.

    I’d also comment that it sometimes seems that amending legislation is more often the result of inquisitive lawyers successfully testing the ‘edges’ of legislation, rather than the legislators voluntarily revisiting earlier legislation. But your point @6 about the onward creep of government by regulation and executive decision is very valid.

  12. Posted July 2, 2011 at 2:33 pm | Permalink

    If the purpose of government is to “do good”, then there is no limit to government, for there is always more “good” to do. The more absolute the claim of “the good”, the more total the therefore-legitimate ambit of government. The most complete manifestations of this logic is in totalitarian regimes, for the more complete the transformation of human society to be achieved, the more total the control.

    Democratic government looks in both directions on this. As legislators are the elected representatives of The People, then their authority is sanctified by popular sovereignty. On the other hand, their authority comes from said people, so controls which seem to too restrictive on said people also contradict popular sovereignty.

    One sees this tension particularly clearly in US politics, where the left tends to take it as read that government acts across a wide range of issues to support the Good and manifest popular sovereignty while the right tends to take it as read that government is a dangerous delegated authority whose overweening ambition threatens popular (in the sense of individual) sovereignty.

    This comes out particularly strongly in economic issues, where one sides sees property rights as manifestations of popular sovereignty and the other as them being various levels of impediments thereto.

    It also comes out in that folks on the left tend to see private interests as something the political order can “sit over” and control while the right tends to see government as something that will be gamed by private interests. (To put it another way, one regulates in the hopes of restricting lobbies and private interests, the other is more likely to see lobbying as the predictable result of intrusive regulation.)

    To complicate matters, there are “the claims of God” conservatives who are happy to use the state to do “God’s will”. Also, the default attitudes to state coercion tend to reverse when considering the physical coercive arms of governments (police and military forces). The left tends to be suspicious of legitimated official violence (while being terribly keen on all sorts of other official coercion) since criminals and angsty foreign powers are just misunderstood/have legitimate concerns (but corporate interests are, of course, evil), the right wanting social order to be protected (while generally being sceptical of state coercion elsewhere).

    US politics is divided into two Parties who can both accuse the other of “not getting” the American Revolution and both are correct.

    All of which makes LE’s question of “yes, but what actually works?” an excellent one. It, more than anything else, was the question which led to liberalising economic reforms being adopted by both sides of politics. Legislation normally has wonderfully “good” intentions. But intentions are easy, anyone can spout them, it is consequences that really matter.

  13. Posted July 2, 2011 at 2:50 pm | Permalink

    [email protected]

    Thought instead I’d just rely upon the belief that surely the legislators have my best interests at heart.

    What incentives constrain politicians to pay attention to consequences? And which consequences are they going to pay attention to? Thinking about those questions may make you less confident about interests.

    On technology and law, looking at the stats on pages of legislation passed, I suspect the photocopier helped expand the amount of legislation by making it easier for Parliament to process it.

    As for the purpose of legislators being to legislate, Pitt the Elder is reputed not to have shepherded a single Act through Parliament in his entire career.

    Law can also repeal law. By the late C19th, British politics had a reputation for high levels of probity. This was not the case in the C18th. The British Parliament, from the late C18th on, spent much time repealing laws and regulations. By so dramatically reducing official discretions, it dramatically reduced the potential market for corruption (corruption being the market for official discretions) and so greatly improved the probity of British politics.

    If one dislikes all the corporate lobbying, less intrusive regulation (particularly less complex tax systems) would be a great way of reducing the amount of lobbying. Complex tax laws and intrusive regulation attracts lobbying the way shit attracts flies.

  14. kvd
    Posted July 2, 2011 at 3:37 pm | Permalink

    [email protected], my comment @4 was entirely tongue in cheek, I assure you; I had used up my daily supply of smileys a little earlier.

    But that said, I’d gently suggest that Pitt the Elder is a less than useful example of a good legislator – do you not think? Passing not a single piece of legislation implies either a lack of vision as to his role, or a lack of understanding as to his role – and almost certainly a lack of identity with those he represented.

    And just to widen the gap further I don’t think that the purpose of government is to do “good”. I think it is to “govern”. That implies a balancing of interests – some of which will be well received, some not so; some aimed toward a distant time goal; hopefully very little aimed at knee-jerk. I’m thinking that this is the precise point of disillusion we are at with our present federal government.

  15. Posted July 2, 2011 at 4:21 pm | Permalink

    That’s a very odd comment from Albanese. It seems to mix pride in getting around the Greens ‘roadblock’ with pride in sheer legislative bulk (the comparison with Howard’s legislative output). I’m always wary of reading too much into a given politician’s unscripted remarks, as I know when I speak off-the-cuff, I can be unclear and even self-contradictory.

    If part of what is going on is pride in sheer legislative bulk, then LE is right, and it is enormously silly. Excessive regulatory burdens are a well documented mess, and politicians, like children with crayons and paint, do need to put it away sometimes: ‘no dear, not on the walls!’

    Richard Epstein (‘Simple Rules for a Complex World’, 1995) is very good on the ‘two many lawyers, too much law’ issue; it is unfortunate that in his later work he has been suckered by the ‘claims of God’ conservatives (I do like that phrase, Lorenzo) into supporting laws that are just as impossible of enforcement and just as stupidly complicated as anything the progressives have entertained.

    I must admit that, were I in the US, the Republican Party’s addiction to nanny-statish ‘claims of God’ combined with a corresponding lack of interest in doing anything about government waste and bloat would lead me to vote Democrat if there were no Libertarian candidate. I am not the only UK Conservative who thinks this way. A lot of us are having trouble recognizing the ‘conservatives’ across the pond.

  16. Posted July 3, 2011 at 5:01 am | Permalink

    I think that [email protected] has made a fair point in that the Minister was responding to some very silly criticisms that have been around. Yet the Minister’s remarks still centered on the volume of legislation passed.

    Growth in the volume and complexity of legislation has been a long term trend. The CP state parliamentarian David Drummond complained about it in 1926! A year or so back, Nick Gruen on Club Troppo ran a graphic showing the more recent trends.

    Part of the increase is simple maths. As the volume of base legislation increases, so does the subsequent need to tidy up anomalies and to respond to change. Part of the increase is linked to increases in the absolute size of Government requiring new institutional legislation.

    The increase goes well beyond this. As the Commonwealth’s role has expanded so has Commonwealth legislation. State legislation has continued to expand at the same time, as has the volume of council ordinances of one type or another. We are awash with law of different types.

    To my mind, and this has been picked up already, the Minister’s comments confuse activity with value. You see some of the same type of thinking in the popular idea that Parliaments must sit longer, that members aren’t working if Parliament isn’t in session.

  17. Posted July 3, 2011 at 4:24 pm | Permalink

    [email protected] I am opposed to any rationing of smileys 🙂 (Irony requires tone markers.)

    I agree that the proper role of government is to govern: that, alas, is not how it is usually construed,

    But why should governing require ever more law? That is not a requirement of governing, it is much more a function of attempting to “do good”.

  18. kvd
    Posted July 4, 2011 at 12:09 pm | Permalink

    [email protected] I’m finding it hard (leaving aside political alignment) to imagine any legislation which is not some sort of an attempt to “do good”, so your point is fairly made, and conceded. But as for the wider issue as to why additional legislation is needed “to govern” I think Jim’s comment immediately above gives several valid reasons why additional legislation is sometimes (it seems almost never ending) necessary.

  19. Posted July 4, 2011 at 1:06 pm | Permalink

    I don’t have a problem with a government trying to do good, and I believe in many ways that’s what the electorate expects.

    I wonder if the expected standard of legislation is continually being raised higher. The legislation might not have changed in breadth of coverage, however it might have changed in depth or complexity. Governing is a difficult and complex problem that we are undoubtedly learning about as we go along. Add to this a constantly changing society, and there is a potential need for continual action in the process of governance.

  20. Posted July 4, 2011 at 1:14 pm | Permalink

    [email protected] Why would removing laws (which admittedly is part of legislative output if measured by pages) be more of good government.

    [email protected] My point is more the unlimited nature of “doing good”. As for the quality of legislation getting ever higher, have you looked the various Tax Acts recently? The ATO cannot tell our (small) business what our tax liability is.

    Politicians desiring to micromanage judges is part of the problem. But trying to entrench specific benefits to various constituencies is even more so. (These two features are not exactly independent.)

  21. Posted July 4, 2011 at 1:15 pm | Permalink

    That should be “more an element of …?”

  22. Posted July 4, 2011 at 1:48 pm | Permalink

    Lorenzo, to clarify I meant standard as in ‘detail’ not ‘quality’.

    My point is more the unlimited nature of “doing good”.

    That all depends on how you define ‘good’. If you consider ‘good’ to be about achieving singular goals on a one dimensional scale without consideration for other impacts or outcomes, then yes it will be dangerously without limit. However if you consider ‘good’ to be the pursuit of a better balance, then there will be a natural limit that we will never quite reach and the opportunity for continual improvement.

  23. kvd
    Posted July 4, 2011 at 2:17 pm | Permalink

    [email protected] Why would removing laws (which admittedly is part of legislative output if measured by pages) be more an element of good government?

    Edited – I hope – in line with your intention? If I got that right then I simply don’t understand your point.

    But it’s weird you should mention the Income Tax Act. I was half hoping to sometime see LE’s one page diagrammatic explanation.

  24. Posted July 4, 2011 at 3:25 pm | Permalink

    Politicians desiring to micromanage judges is part of the problem.

    Is a pile of legislation going to be any worse than a pile of case law?

  25. HeathG
    Posted July 4, 2011 at 3:52 pm | Permalink

    Nice post. On a side note though… what’s with the nursing home filtering the internet feed? I mean, surely they can’t proclaim to be “protecting the kiddies”. Do nursing home residents give up their right to adult content?

  26. Posted July 4, 2011 at 7:57 pm | Permalink

    desipis: if we are going to define a “doing good”, it’s easier to say “do no harm” first, or at least minimize harm, and you’ve got to measure it, for “it ain’t manageable if you don’t measure it”.

    I cannot think of any better measure of harm to people than despression statistics – as all stressors – poor health, poor housing, unfair work conditions or even overly onerous tax regulations, are stressors than increase incidence and severity of depression, all other things being equal.

    Conversely, if it’s not stressing the population enough to cause depression significantly above endogenous depression incidence, it’s not really a problem.

    There are quick, easy tools for measuring depression incidence and severity, designed for epidemiological use, allowing valid comparisons between countries and different economic models.

    Of course, given it’s as easy to get valid figures on this as consumer confidence figures, and it covers the sum insult to the population (much of which is potentially managed or mismanaged by governments), and would show meaningful change on a quarterly basis, no politician would ever want the ABS to collect or publish the stats.

  27. kvd
    Posted July 5, 2011 at 4:55 am | Permalink

    “… Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

    An earlier statement of government intent to (most likely) “do good”?

    Lorenzo might prefer to insert “not” in front of “effect their Safety and Happiness” – and I’d tend to agree 😉

  28. Rococo Liberal
    Posted July 5, 2011 at 7:58 am | Permalink

    Lorenzo’s points are well made.

    Democracy, by its very legitimacy, will tend to soft totalitarianism by the continued increase in the amount of legislation and, more importantly, delegated legislation that governments introduce. The problem stems from the fact that politics is one of the easily narratable stories that the media can serve up to the punters every day. Along with sport and celebrity gossip, politics has grown like topsy because of the continued focus placed upon it by a media pack which needs constant stories to survive.

  29. Rococo Liberal
    Posted July 5, 2011 at 8:01 am | Permalink

    And SL

    Don’t be bloody silly, no-one who considers themselves a libertarian or conservative would have anything to do with the odious democrats, the party of the stupid and the big government shyster. The Republicans may have their god-botherers, but so do the democrats: they’re theones who follow the new religions of environmentalism and diversity.

  30. Rococo Liberal
    Posted July 5, 2011 at 8:03 am | Permalink

    Sorry for the third message.

    LE a lot of tax legislation and ATO rulings now contain flow charts showing how certain provions apply. It’s great, as long as the diagrams actually match what’s in the legislation.

  31. Posted July 5, 2011 at 11:25 am | Permalink

    Just on LE’s point, I now have my computer back… with precious little on it. I have been reduced to retrieving an electronic copy of my novel from my agent, my photographs from my partner and all sorts of things from other people. Some of my correspondents on this blog will hear from me in due course, as I put my address book back together.

    I don’t recomment total technical wipe-out to anyone, especially not the mechanical sort (my laptop started ticking like a time-bomb in a Bond film; it was very disturbing).

  32. Posted July 5, 2011 at 11:28 am | Permalink

    In other words, I will write something just as soon as I am able!

  33. Posted July 5, 2011 at 12:05 pm | Permalink

    [email protected] Indeed, that was what I meant.

    [email protected] “The good” turns out to be just about anything that can be presented as positive. If it was about achieving better balance, there would be more pruning of law 🙂

    [email protected] Surely, there will be case law anyway. But micromanaging judges will lead to more complex legislation: I doubt that leads to less case law …

  34. Simon
    Posted July 5, 2011 at 5:11 pm | Permalink

    If the job of government is to govern then all laws should be as ambiguous and difficult to decipher as possible (written in sanskrit or such) to avoid any interference by Joe public, cheap junior lawyers and their media mates. All courts behind closed doors and parliament done without scrutiny.
    If the role of law is to be doing ‘good’ (I assume that means fixing perceived plebein problems) then having an uninquisitive adversarial system entirely defeats the purpose as courts do not determine the good only the legal. Who comes along after a while and checks to see if said law is achieving it’s aim or not? Judicial activism being career poison. In such a case surely the role of the judiciary should also be to annul laws deemed to be lacking efficacy of purpose or to limit the extent of laws failing to achieve goodness in individual cases. I still love the ten commandments not because I’m devout but because they are a truly beautiful set of laws, utterly open to interpretation and reinterpretation as well as extrapolation by those experienced enough to be deemed wise or learned. Wasn’t it Lenin who said “Quantity has quality all of it’s own.” We know what his aims were with goodness a poor second to governance.

  35. Simon
    Posted July 5, 2011 at 5:13 pm | Permalink

    whoops sorry that should be ‘plebeian’ !

  36. Posted July 6, 2011 at 11:55 am | Permalink

    [email protected] Your comments seem to not parse the difference between govern and control 🙂 Clear signals help good government: they can get in the way of maximising control.

    “The good” need not involve plebian concerns. Indeed, it can mean quite the opposite–saving the plebs from themselves, for example.

    Pause here for some H L Mencken quotes:

    Democracy is the theory that the common people know what they want and deserve to get it good and hard.

    A judge is a law student who marks his own examination papers.

    And a new personal favourite:

    It is now quite lawful for a Catholic woman to avoid pregnancy by a resort to mathematics, though she is still forbidden to resort to physics or chemistry.

  37. kvd
    Posted July 6, 2011 at 3:15 pm | Permalink

    [email protected] Menken,Schmenken!

    Each line he made, he said, was “the actual experience” of making the line, adding: “It does not illustrate. It is the sensation of its own realization.”

    RIP, Cy Twombly, having experienced the ultimate abstraction.

  38. Posted July 6, 2011 at 7:14 pm | Permalink

    [email protected] – your personal favorite is pretty neat. There are two types of maths here – counting 14 days backward from sometime in the future (unreliable), or counting to 4 every day for a month and keep counting to 4 every day. The latter maths, pretty much ruling out male fertility as well as cutting risks of prostate cancer, is rarely advertised by prudes and papist prelates.

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