Thursday, August 28, 2014


"The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics." Oliver Wendell Holmes, Jr.

I think we can learn something by doing just that.

At its best the laws and regulations of a country represent machinery to provide justice in both positive and punitive ways. A man should be able to enjoy the fruit of honest labor, and be punished for injuring his neighbor. We all know of laws and rules designed to enrich the well-connected, but I’m going to ignore them for now.

Ideally the machinery should just work: given a set of input circumstances and events, then either do nothing, give a benefit, or inflict a punishment; and in each case this should be the right thing to do. The problem is that life is complicated, and little corner cases evolve from human ingenuity (How about selling options to trade bond futures?) or new technologies.

So, is this new corner case, selling options to trade bond futures, something that should be classified as a sale of a good or does it have such an attenuated connection to anything concrete that it is more like gambling—with a strong possibility of manipulation and fraud? Not sure? Does it seem important enough to merit a new law? OK. Now you have N+1 laws, and this new one will interact with some of the old ones—there’s no way of getting around that, even if you substitute one with another, since the new one has to cover more ground. The new machinery will have new corner cases.

We can often evaluate the corner cases as just or unjust dealings, but the machinery of the rules doesn’t let us solve them. Sometimes the machinery gets the wrong answer, because of some flaw in the laws (I’m not thinking of failures of juries, but of unexpected interactions of rules).

Holmes also said "This is a court of law, young man, not a court of justice," and in that he was absolutely accurate. The machinery gives only a finite approximation to justice.

Any effectively generated theory capable of expressing elementary arithmetic cannot be both consistent and complete. In particular, for any consistent, effectively generated formal theory that proves certain basic arithmetic truths, there is an arithmetical statement that is true, but not provable in the theory. paraphrase of Godel’s first theorem

Laws and regulations are not an exact parallel to an “effectively generated theory”, but humor me. If they were, then the resulting machinery, by Godel’s theorem, would be either inconsistent or full of gaps and corner cases. (Yes, the real tax code is both.) Adding new laws will not change this problem, no matter how many you write or how carefully you write them.

Or to put it another way, you are never going to get the system to be perfect. It will always be incomplete or inconsistent (and usually both).

So are we doomed to merely converge on perfection, always bettering society but never getting it quite right?

The more corrupt the republic, the more numerous the laws. Tacitus

He meant the causality to go from corruption to multiplicity of laws, but it works the other way too. At some point the number of laws and rules exceeds human capacity to manage them, and you automatically get disregard for the law—and usually disrespect as a natural result. Enforcement of inconsistent laws tends to be capricious, so what tribe you’re in starts to matter a lot. It just gets worse from there.

So no, far from converging on perfection, trying to endlessly fix things starts to actively make society worse.

The obvious deduction is that at some point (which point will obviously be disputed) you need to stop making laws and rules to fix problems and suck it up.

That doesn’t work either.

The old order changes, yielding place to new,
And God fulfils himself in many ways,
Lest one good custom should corrupt the world.

Or for another take, look at Shaw’s

Hearken to me then, oh ye compulsorily educated ones. Know that even as there is an old England and a new, and ye stand perplexed between the twain; so in the days when I was worshipped was there an old Rome and a new, and men standing perplexed between them. And the old Rome was poor and little, and greedy and fierce, and evil in many ways; but because its mind was little and its work was simple, it knew its own mind and did its own work; and the gods pitied it and helped it and strengthened it and shielded it; for the gods are patient with littleness. Then the old Rome, like the beggar on horseback, presumed on the favor of the gods, and said, "Lo! there is neither riches nor greatness in our littleness: the road to riches and greatness is through robbery of the poor and slaughter of the weak." So they robbed their own poor until they became great masters of that art, and knew by what laws it could be made to appear seemly and honest. And when they had squeezed their own poor dry, they robbed the poor of other lands, and added those lands to Rome until there came a new Rome, rich and huge. And I, Ra, laughed; for the minds of the Romans remained the same size whilst their dominion spread over the earth.

Fallen humanity will take whatever virtues went into building the strength of a culture and a nation and eventually twist these. For example, what would Locke have made of the modern West’s elevation of individualism to the point where the received wisdom is now that you can choose your own nature? The unwritten part of the law, its cultural support, erodes over time.

And, of course, people exploit the loopholes, sometimes even in preference to the usual procedures.

The upshot is that trying to stay static doesn’t work either. IIRC the Chinese tried that, and wound up with cycles of good (well, OK) government, corrupt government, and civil war.

The answer is that there isn’t a good answer. But when someone implies that all our problems can be fixed with his rules, call him a liar. If he implies that his rules will get 100% compliance, call him a fool. He may have a good idea or two, but only by accident.


Assistant Village Idiot said...

A new rule picks off low-hanging fruit in achieving justice. That merely encourages everyone to have another go at improving it. There is a law of diminishing returns.

james said...

Worse than diminishing--after a while things get worse.