Justice Administered is Justice Denied
From financial regulations, to religious doctrine, no discussion of rules goes beyond the first few exchanges without some concession being made to the fact that the rules don’t make any sense. We may justify the rules, or apologize for them, but we can’t pretend that all the rules in a functioning complex system are rationally oriented toward a single logical objective, or a particular ideal result. Instead, we find ourselves dealing with rules one at a time and satisfying ourselves with simply “complying” with them. The tendency of rule based governing systems to decompose into a collection of conflicting imperatives, is not the result of a conspiracy or incompetence, it’s something akin to a law of nature.
Just to clarify, by rule I mean a man made restriction of behavior and by conflicting rules I mean rules oriented towards contrary values. Ideally, every law in criminal code would further a unified vision of what a criminal justice system should do. Instead, every criminal code is a patchwork of laws that emphasize rehabilitation, stitched together with laws that emphasize punishment. HR polices are the same way, constantly attempting to increase employee satisfaction while enforcing dress codes, or attempting to reward individual accomplishment while encouraging teamwork. I refer to a rule as arbitrary or irrational if it conflicts with itself, for example if the purpose of an incident report is to get to the truth, a rule limiting the incident report to exactly 500 words is irrational since the requirements of the rule supersede the purpose of the rule.
Oliver Wendell Holmes described the rule making process in these terms: “First the rule is created for a particular reason. Then the reason the rule was created becomes forgotten or irrelevant. The people who live under or enforce the rule create an explanation of the rule’s purpose that fit’s their current circumstances. Finally, the rule is reformed in order to bring it in line with it’s newly described purpose.” The classic example is a small community putting restrictions on what foods it’s members can purchase in order to prevent capital from flowing out of the community. After the economic crisis has passed the restrictions are rationalized as a test of loyalty to the community. Eventually, their new found significance causes them to become increasingly elaborate and hard for outsiders to follow. Finally the rules are touted as “healthy” because they form the bedrock of a religious tradition, which feels the need to justify their utility in terms of modern medicine. Since all rules undergo this process, in response to external changes in both circumstances and values, no rule system can maintain it’s internal consistency.
Our lives are necessarily circumscribed by a constantly changing rat’s nest of arbitrary, and conflicting rules. Could things get any worse? They already do! Although I prefer to think of things as getting more interesting. Rules are constantly being specified and rewritten by the mechanisms of enforcement and implementation they necessitate. The law isn’t just in conflict with it's self it’s in conflict with the practical restrictions on enforcing it!
The most mundane example of this is the speed limit. The initial purpose of speed limits was (as far as we can tell) to enhance public safety by decreasing traffic accidents. Since the most practical way to enforce the rule at the time was by using patrol vehicles, fines had to be high enough to discourage motorists who new they had a low chance of getting caught. Eventually, the fines became a source of revenue, and the number of officers assigned this task was adjusted to reflect that fact. Over time, traffic stops took on an important role in the war on drugs because the interaction between the motorist and the officer gave the officer a valuable opportunity to search the vehicle. Drug arrests in turn became a source of revenue, and law enforcement agencies changed their labor allocation to reflect that fact. As of this moment, traffic laws reflect the need for revenue generation, the role they play in “the war on drugs”, and the vested interests of police departments in retaining employees. If an impersonal technology based solution were created to guarantee 100% enforcement, it would fulfill the original intention of the speed limit law much better than the current system. Perfect enforcement would allow us to reduce the fines, which in turn would make the punishment more effective and less arbitrary. Unfortunately, such a system would harm the new objectives the law has taken on over time, and therefore would be very hard to implement. The form of the law is shaped by it’s enforcement mechanisms.
The above example is almost cute compared to the choking cloud of conflicting interests, created by complicated regulations. The more layers of interpretation and enforcement a rule has, the more rapidly its original purpose will become irrelevant. Imagine a law that says “All consumers have a right to a copy of whatever data a for profit business has collected on them. This statute will be complied with according to the rules created by the Consumer Data Protection Commission, funded by this statute.” Now the statute can only be complied with in a way that allows the continued existence of the (fictional as of this writing) CDPC. This is a surprisingly powerful restriction because it means that companies will have to set up their systems of compliance in a way that allows the CDPC to verify if they are complying, and the scale of the problem will require the CDPC to impose the same “compliance system” on all of the companies it monitors.
The farther down the chain of rule making bodies, the more the problem intensifies. Each company will have to create it’s own set of rules for acting in a way that complies with whatever standards the CDPC imposes. Employees will have to be trained and software systems will have to be put in place. The methods that each company uses to interact with consumers and their data will be re-structured in order to facilitate the compliance policy. With each layer of enforcement, the concept of consumer rights becomes de-emphasized as the layer below becomes preoccupied with the details of the layer above. Eventually you end up with: “Your environmental incident report must be 500 words or less because that’s the maximum amount of text I can physically enter into the CDPC compliant data storage system that Corporate requires HR to require me to file these reports with.” After a year, this explanation will become “The 500 word limit is required in order to save paper. We have to store printed versions of all environmental reports because the Database can only hold 100,000 reports at a time and there is a possibility that we could exceed that number within the 6 year statute of limitations for producing original reports.”
The more directly the rules govern the actual point of implementation, the greater the proliferation of specific restrictions not found in the original statute and bearing no rational relationship to protecting consumer privacy. If the law is ever repealed the infrastructure created by complying with it will remain in place and restrict future behavior as part of the compliance structure of new rules that come along. This is far from a blanket indictment of the concept of regulation. Understanding these principles is a prerequisite to effective regulation, which takes these degenerative principles into account.
