- Feb 12, 2007
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Excellent piece in the Atlantic about how complex laws are so incoherent that nobody is accountable and not much gets done.
The recommendation is to go back to Principles Based Accountability with a big heaping helping of Common Sense.
...
“Clear law” turns out to be a myth. Modern law is too dense to be knowable. “It will be of little avail to the people,” James Madison observed, “if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” The quest for “clear law” is futile also because most regulatory language is inherently ambiguous. Dense rulebooks do not avoid disputes—they just divert the dispute to the parsing of legal words instead of arguing over what’s right. Indeed, legal detail often undermines the regulatory goal. “The more exact and detailed a rule, the more likely it is to open up loopholes, to permit by implication conduct that the rule was intended to avoid,” Judge Richard Posner observed.
What’s the alternative? Put humans back in charge. Law should generally be an open framework, mainly principles and goals, leaving room for responsible people to make decisions and be held accountable for results. Law based on principles leaves room for the decision-maker always to act on this question: What’s the right thing to do here?
"The more exact and detailed a rule, the more likely it is to open up loopholes, to permit by implication conduct that the rule was intended to avoid."
Until recent decades, law based on principles was the structure of most public law. The Constitution is 10 pages long and provides basic precepts—say, the Fourth Amendment prohibition on “unreasonable searches and seizures”—without trying to define every situation. The recent Volcker Rule regulating proprietary trading, by contrast, is 950 pages, and, in the words of one banker, is “incoherent any way you look at it.”
Legal principles have the supreme virtue of activating individual responsibility. Law is still supreme. The goals of law are centralized, but implementation is decentralized. Every successful regulatory program works this way....
When Humans Lose Control of Government - The Atlantic
The recommendation is to go back to Principles Based Accountability with a big heaping helping of Common Sense.
...
“Clear law” turns out to be a myth. Modern law is too dense to be knowable. “It will be of little avail to the people,” James Madison observed, “if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” The quest for “clear law” is futile also because most regulatory language is inherently ambiguous. Dense rulebooks do not avoid disputes—they just divert the dispute to the parsing of legal words instead of arguing over what’s right. Indeed, legal detail often undermines the regulatory goal. “The more exact and detailed a rule, the more likely it is to open up loopholes, to permit by implication conduct that the rule was intended to avoid,” Judge Richard Posner observed.
What’s the alternative? Put humans back in charge. Law should generally be an open framework, mainly principles and goals, leaving room for responsible people to make decisions and be held accountable for results. Law based on principles leaves room for the decision-maker always to act on this question: What’s the right thing to do here?
"The more exact and detailed a rule, the more likely it is to open up loopholes, to permit by implication conduct that the rule was intended to avoid."
Until recent decades, law based on principles was the structure of most public law. The Constitution is 10 pages long and provides basic precepts—say, the Fourth Amendment prohibition on “unreasonable searches and seizures”—without trying to define every situation. The recent Volcker Rule regulating proprietary trading, by contrast, is 950 pages, and, in the words of one banker, is “incoherent any way you look at it.”
Legal principles have the supreme virtue of activating individual responsibility. Law is still supreme. The goals of law are centralized, but implementation is decentralized. Every successful regulatory program works this way....
When Humans Lose Control of Government - The Atlantic
