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Monday, January 5, 2015

A Law By Any Other Name

Some days ago I read an interesting article on the stranglehold our laws and regulations have over our daily life. This was a balanced and thought-provoking article, for most part, though it made a few errors in conflating laws and regulations and did not distinguish clearly between the federal government and more localized authorities. However, it reinforced a theory that I'd heard some years ago that there is no longer a single person or small group that controls our lives, but rather that we are at the mercy of a vast and faceless bureaucracy that punishes individuals not out of spite or hate but simply because it exists and functions.

It is hard to dispute that we live in a highly regulated society, and many argue that we live in fact in an over-regulated world. This is a major political issue and even appeals across the political spectrum, though predictably the solutions are less clear than the problem and far less universally accepted. Regardless of which aspect of regulation one chooses to examine, the opposing sides of the political world have widely different responses. Environmental regulation and worker protections are anathema to conservatives while progressives swear we do not go nearly far enough, while abortion restrictions and marriage definition quite neatly flip their positions around. And therein lies the first of the problems: we do not object to laws and regulations per se, just to those that do not suit our political positions. In a world of compromise then, it follows that we will always have regulations that no not suit us; the burning question is whether the laws and regulations we have actually hinder us in our daily lives.

Many business owners contend that they struggle under an unsustainable load of regulations. There is usually some hyperbole involved, but there is also a certain justification for their angst. Yet, as the article points out, each law and regulation taken in isolation is usually justified and quite often widely supported. Laws are usually passed to reflect the wishes of the wider public, and whichever law one chooses to examine will seem justified. The Great Recession is an excellent example, where the excesses of the unregulated financial world plunged the economy into chaos and led eventually to a slew of new regulations designed to prevent a repeat. Similarly, the mass shootings in Aurora, CO and Newtown, CT prompted calls for regulation on certain guns (the fact that the public demand led nowhere is moot in this discussion, the point is that Congress reacted to an event and a public demand).

The key however is that laws and regulations make sense in isolation. Taken together we often end up with a jumbled mass of contradictory and mind numbing requirements, regulations that would challenge Daniel himself should be asked to judge their worth and meaning. This is certainly a problem, yet it is not an insurmountable issue, should the goodwill and political desire exist. It must first be recognized that there are three distinct sets of rules, viz. laws passed by Congress (or a lower level legislature) that distinctly specify certain requirements, laws passed but which leave the specifics to be spelled out by regulatory agencies and finally regulations put in place by various entities (both public and private) to help them navigate the first two sets. In the article I cited, it's crucial to note that most of the failures in practice were caused by the third set, and as often as not, caused by a lack of independent thinking or a clear understanding of the reasons for the rules (e.g. the school that banned teachers from calling 911 was attempting to prevent police being summoned too often for discipline issues, and understanding that would have freed the teacher to call emergency services for a medical issue). The second and greater problem is that all public entities (school districts, emergency rescue services, utility agencies) and private companies draft voluminous lists of rules on behavior to avoid being sued, by employees and the public they serve. Congress does not have legislation on acceptable interaction of men and women at work, yet many companies will have lengthy lists of "dos and don'ts" to negate the risk of inappropriate behavior leading to a harassment suit, to offer one example. Human nature is the culprit here; in the absence of regulation, stronger groups will assert themselves at the expense of weaker ones. Human nature also has led to numerous lawsuits against companies and public entities, no matter how big or how small the grievance and how much blame they actually deserved. Hence fast food companies feel the need to warn us that the hot coffee they provide really is hot, or that ingesting unknown chemicals may not be a wise course of action. These are not the result of a regulatory government run amok. The fault, if fault it be (for  reality is never cleanly defined in black and white) lies wholly with us, both the victims who sued and the juries of their peers who so often have rewarded the seemingly frivolous claims with the same largesse of more deserving cases.

While the laws passed by the government often complicate life, they are not always passed with that intent. Most laws are intended to address real needs and pressing problems. But as the years roll by, the vast numbers of laws begin to stack up and inevitably we end up with both contradictory laws and occasionally foolish laws. I am constantly disheartened by the laws in India that still prohibit any intimate gesture between the sexes in public, or the Texas law that criminalized homosexual relations till it was finally struck down by the Supreme Court. There are many more rules, passed decades even centuries ago that are antiquated yet remain in full force, if simply not enforced today. For all we know, there are probably plenty of laws against cohabitation, premarital sex or the like. Laws against blasphemy, swearing and drinking on Sundays have similarly fallen aside as society progressed. But other less visible restrictions remain in effect, forgotten till someone finds a reason to challenge them or use them.

We would definitely gain if all our laws were subjected to an intelligent audit. However, such an audit could be undertaken, leave alone succeed only if every player approached the exercise with an open mind and a spirit of compromise, a combination sadly lacking in most of us. Some have suggested that all new laws include a sunset clause that will automatically retire them unless renewed. I almost endorsed that idea for a moment, but in reality that would greatly complicate life. If every law we had today was temporary, we would have little to no certainty in life. In the most extreme case, one could imagine basic laws against theft and cheating falling prey to political squabbles and failing their renewal, leaving one at the mercy of the unscrupulous. Perhaps a better use of our energy would be to urge that different government agencies get together and reconcile their different regulations so that we have fewer outright contradictions in practice. And we should remember how irksome regulations can be when next we sit to draft rules or regulations that will affect others.

But above all, we need to remember that a world without rules and regulations has no order at all, and will not be a civilized land. It is rules that protect us from chaos and shelter us against the depredations of the greedy and the power of the wicked. The law is, in the end, not so much an ass, as a necessary evil.

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