Weathering away old rules.

It is sometimes said that in order to learn it is necessary to be able to forget and that if we couldn’t unlearn things by forgetting we would become rigid in our thinking and unable to adapt to new information and knowledge. One of the problems with parliament made laws is that there are such a lot of them. And as the quantity of laws grows, societies body of law becomes less transparent and accessible to the average person and even to the legal professional. In the process a lot of obscure laws that will never generate much public discussion or interest in terms of reform will still continue to restrict behaviour and stifle creativity. As such society can become rigid and lose the knack of easily learning new tricks because it can’t easily forget old rules.

The constitution of a nation might be thought of as a set of rules carved in stone. They are not easily changed and to overturn the constitution usually requires a minor war. The laws made by parliament might be though of as like laws inscribed on parchment. They can be changed more easily but only if there exists a body of interest that will advocate for reform and if parliament makes the time to undertake such reform. What I propose is a set of laws that are like paint on a public wall. These laws would be there for a long time but eventually they will weather away and cease to exist unless the necessary paint is reapplied. The effort then is in retaining them and such effort will get applied only to rules that are perceived to have real value. 

An act created by parliament currently requires a simple 51% majority in order to become permanent law. I envisage a constitutional reform such that parliamentary acts that are intended to be permanent should require support from a super-majority of 75% of the parliament (house of reps). Laws that have a sunset clause of 30 years or less would require support from only a simple majority of 51% of parliament, as is currently the case. Of course a simple majority could repeal any law, and a simple majority could extend the expiry date on any law so long as they did not renew its life beyond a 30-year horizon.

Under such a scheme laws would only take on a timeless quality if a broad body of consensus within parliament supported them. No doubt laws such as those that prohibit murder or rape would have little difficulty in meeting this test. However a parliamentary majority would still be empowered to make laws to govern society for today, albeit with a sunset clause built in. Such laws can in effect be experimentally tested for a generation and if they work then one day a super-majority may even vote to make them permanent. However they may continue to divide opinion in which case in years hence a new majority will need to be assembled to extend their reign.

I would expect that for topically laws the net effect would be minimal. Many laws would get a rolling renewal every 30 years but would never meet the necessary consensus test to become permanent. 

One objection to this reform might be that parliaments would become preoccupied with defending the worth of previously enacted laws rather than in creating new laws. However this may not be such a negative thing. And maybe in the process somebody will forget to renew a rule that then clears the way for some creative citizen to pursue new ways of organising things.

25 thoughts on “Weathering away old rules.

  1. Why not just have a 30 year life span on all laws? 30 years seems long enough that even laws we might have considered set in stone at the time might need a bit of updating anyway (e.g., blacks voting, contraception), and a life span like 30 years doesn’t seem too short that it would involve huge amounts of extra administration (particularily if the number of laws was drastically reduced and if they only needed to be rubber stamped to continue).

  2. Terje, your post is in really, really small font. I want to read it in full but it’s giving me eyestrain. Is there a way to fix it so it’s the same size as everything on the rest of the site?

  3. Skepticlawyer,

    Sorry about that. The system seems to have automatically shrunk the font for some reason. Having said that it is quite readable on my screen, being the same size as the fonts used in the comments. I’ll see if there are any settings I can apply to improve things.

    Regards,
    Terje.

  4. i think the biggest problem with this proposal is that laws passed by parliament aren’t really indepenant.

    if you rollback one law without rolling back other laws (or amendments) passed after the law being rolled back you risk creating new law.

  5. I don’t know what the fix is, but we certainly live in a world of ‘too many lawyers, too much law’. The former is as a result of the latter. Pollies constantly get the idea that they can do ‘better’ than the evolved common law. This tends to lead to the ‘law of unintended consequences’ writ large. Anything that encourages the passage of fewer laws is a good thing, especially some of the subordinate legislation, which is seldom (if ever) debated, and often highly punitive.

  6. Given the price some lawyers charge the economic evidence seems to be that there are too few lawyers. However I suspect that for this industry Says law applies more than usual and supply really does create it’s own demand.

  7. Lawyers can rent-seek by virtue of the ‘professional’ licencing regime they enjoy and the practice and procedure used in courts (which takes a good couple of years to get your head around, even after a law degree).

    That said, we are left with a situation that’s so complex (because of the amount of bad law) that no organisation (company, union, voluntary association etc) van unilaterally get rid of its lawyers because it knows that other bodies won’t respond accordingly.

    Classic prisoners’ dilemma scenario.

  8. Why would I trust a 75% majority or a 51% majority. It’s still a system based on voting. I imagine Socrates wouldn’t have supported this either. Personally I think the law needs a big overhaul but I can’t see Australia doing this being so traditionalist.
    I believe Law to be a science and do not accept moral relativist theories. If you believe right and wrong, or justice to be real and absolute on this earth, law can indeed be a scientific discipline, based on some simple principles such as: Initiary force is a violation of human or property rights, or contracts should be honoured. Scientific disciplines attempt to define these irreducible “laws” of nature. For example, just as the law of gravity exists within the field of physics, the “law” of personal and property rights (for example) could exist within the legal field. These principles should be defined and should be the basis for legal disputes. They should be scientifically derived and hence not open to a system of voting. A consensus must be reached. The major principles would have to be a working document open to refinement but considering the pursuit for irreducible principles of the science, there will only be a handfull of law principles. Thus, a consensus among all people should be possible.
    Obviously it is impossible to have a law for every context and situation that may arise. This is where the critical thinking and scientific process is necessary for accurately delivering justice. If judges and lawyers have a solid understanding of definite human and property rights and other basic principles of law, I believe there would be a better chance of delivering justice when new situations arise. New situations are common due to our ever faster changing society and I don’t think it’s necessary to have more laws for each new set of circumstances even if they only last 30 years. Precidents do that for us anyway don’t they?

  9. Aren’t a lot of US federal laws subject to renewal? You often read about the US Congress voting (or not) to renew laws. Might be a good system here unless it swamped the parliamentary sittings (perhaps the “Committee of the whole” or whatever it’s called could look at the boring machinery-type laws).

  10. Law isn’t a science.

    I’m with Tim on this one. By science I think Tim is saying that when making law we should base it on accurate observation of our current condition, then derive a logically consistent set of rules to get to a desired condition. Emperical evidence obtained after the laws are introduced should reflect the reasoning of our approach or we’ve done something wrong. Any change from this process is suggesting that law should be made on an irrational basis, which is definitely not how to make good law. So essentially we should look at lawmaking as a process of reason applied to this world, i.e. as a science.

    The reason why we still need to adhere to a democratic approach is to ensure that the desired condition is truly universally desired. If we don’t have the democratic agreement on the desired condition there will be conflict within the society. Of course a 51% majority still means there will be conflict, hence reason suggests that democracy is not the final solution, and that something like libertarianism is the next step towards a peaceful society beyond the residual conflict from a democratic process.

    Of course certain principles are beyond democracy if society is to be peaceful. They are loosely summed up as life, liberty and property. No society can ever be peaceful if these rules are violated, so they need to be enshrined in something like a bill of rights or a constitution.

    As we should never look to making laws that are based on irrational decision making or mysticism, and the fact that our laws must work in the real world to have any value, why not consider lawmaking a science?

  11. Michael said in part: “…when making law we should base it on accurate observation of our current condition, then derive a logically consistent set of rules to get to a desired condition.”

    I’m not sure what is meant by “…a logically consistent set of rules to get to a desired condition” – if you mean that laws should be created systematically and carefully, then I’m in favour of this. Otherwise, what do you mean?

  12. I’m saying that it is a causal world. Hugo Chavez can pass laws that petrol will cost US 2c / L, but that doesn’t make the cost of petrol 2c / L. Laws baning drugs won’t stop drug use. Law is not a magic wand or a realm unto itself, it adheres to the same rules for a causal world as every other decision we make. Which would indicate to me that making effective law is a science.

  13. Laws outline what cost the government will impose on a given decision. For example if you murder people there is a risk that you will get caught and then a cost such as a loss of liberty.

    The impact of the law is then subject to the usual economic considerations. Although of course certain individual perspectives on morality will determine if people decide to exclude the behaviour from their list of options before doing the economic sums. And the normal considerations such as bounded rationality and information gaps would apply.

  14. I agree with Terje’s analysis of the problem, but I don’t see his suggestion as being much of a solution.

    Not that I have an alternative, but thirty years is a long time — I haven’t even been alive that long! Many laws which are part of the scenary have barelty been around for thirty years, I should think that any renewal would become simply a rubber stamp.

    Conceiving a parliamentary system which would facilitate an agenda of liberty is truly a difficult challenge.

  15. If the 51% majority want to rubber stamp old laws they can. However unless they also gag the 25% who refuse to make the law permanent they will have to surrender parliamentary time to renewed debate. And given the way that the two major parties generally control more than 75% of the vote and within the parties a free vote is rare, then such a situation will often require one of the major parties to admit they were wrong when they originally opposed the law or else challenge the rubber stamp.

    Lets say that the Medicare laws originally oposed by Howard were up for renewal this year? Would the ALP vote for them? Would the Coalition vote to make them permanent or merely rubber stamp an extension? Would we have a public debate on the vitues or pitfalls of socialised medicine? Would we have a media discussion about the original arguments for and against these laws and some analysis of their success or failure? Would politicians be forced to declare their position? I suspect that we would get a lot more than a rubber stamp renewal. We would re-engage each generation in the great debates of the era. If Howard did vote for socialised medicine, as opposed to passively tolerating it, then we would all learn something from the process.

  16. Lets say that the Medicare laws originally oposed by Howard were up for renewal this year? … Would we have a public debate on the vitues or pitfalls of socialised medicine?

    No.

    Would we have a media discussion about the original arguments for and against these laws and some analysis of their success or failure?

    No. The media is so concentrated in Australia that outlets are scared of taking a position at odds with government and their market. No media outlet would dare take a position against socialised medicine.

    Would politicians be forced to declare their position? I suspect that we would get a lot more than a rubber stamp renewal.

    No politician would survive taking a stand against Medicare. Any who did would be monstered by leadership of the major parties, whose polling reveals that people are much more attached to government services than to the MPs who take credit for them.

    We would re-engage each generation in the great debates of the era.

    Idealism – cute, but impractical.

  17. Andrew argues two ideas:

    1. If it’s not within (known) popular sentiment don’t bother brining it up.

    2. This is therefore inconvenient to the Governemnt and those who benefit from redistribution.

    Which is precisely why we should have sunset clauses, along with a strong bill of rights, multi member electorates with Hare Clark proportional representation and citizen initiated referenda. A democratic republic, not a democracy is the polity we should be striving for.

    Practicality should not be about serving a few thousand marginal electors who clearly have too much say in how things are run.

  18. On catallaxy I’ve argued that there are two motivators for legislation: rank populism and absolute disregard for public opinion. Sunset clauses will lead to rubber stamping as less consideration of the role of legislation, in the same way that speeding up a production line will not improve the quality of manufactured goods.

  19. The same could be said for not passing it, or passing/not passing any other piece of legislation currently before any of Australia’s Parliaments. Here’s a list of legislation currently before the NSW Parliament. I’m sure there’s nothing particularly toxic there.

    Now if this were reviewed in six months, or ten years, or fifty, it would be a bit of busywork that was not necessarily connected to the issues of which regulation form part. Could I refer you to the equivalent thread in Catallaxy? As you’d expect from a leftist proposal, it means well but it won’t necessarily achieve the ends its proponents would hope for.

  20. I’m not sure this is the best solution, but it is an issue worth turning our minds to.

    Most new laws don’t have sunset clauses, but most of the minority that do (in my experience anyway) have much shorter time frames (3, 5 or sometimes 10 at the outside). I think the feeling is anything more than 10 is de facto a permanent law anyway, as it will become so entrenched that it would be unlikely to be repealed (some of the so-called anti-terror laws have this sort of sunset clauses, and I think the chances of them not being renewed are pretty slim I’d have to say).

    If an idea like this was to be trialled, I actually think 10 years or 15 at the outside would be better. Having a few people around who might remember the context of the original law wouldn’t hurt too, which is unlikely with a 30 year period.

    However, I suspect this would become, like many other built-in attempts at automatic review, a mechanism that would chew up a lot of time to basically (re)rubber stamp 99% of laws. Admittedly, if it still helped to get rid of (or more likely modify/improve) laws that were problematic, then perhaps it would be worth it.

    I expect it would be like CIR or some form of citizens’ right to legistlative ‘recall’ – directed at a small number of hot button issues, which left the vast majority untouched. Again, not necessarily a bad thing, but not likely to lead to the big spring clean effect that (i assume) is what is being hoped for in the proposal.

    I can understand the instinctive (or even theoretical) view that an ever growing number of laws is something to be wary of – it’s one I broadly share. But whilst we certainly do have a growing number of new laws (particularly when you count Regulations, Ordinances and other secondary legislation), the majority are part of an endless ongoing tinkering/amending with existing systems, rather than covering whole new areas.

    I think the bigger solution is a more genuine ongoing review of how laws are being administered – it’s often not the laws per se, but the dodgy way they are administered (or ignored) which can cause the bigger problems. Reviewing these more thoroughly would automatically pick up any perceived shortcomings in the laws themselves.

    Senate Committees do some of this sort of thing, but in an hoc way which driven as much by political imperatives as it is by more apolitical principles of public administration and public good. Making the Senate more independent of government – no Ministers in the Senate for example – might help improve this, but other mechanisms are worth considering too.

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