The Unintended Consequences of Law

By Colin Turfus

It is a fact little known that the origins of the title of John Steinbeck’s famous novel “Of Mice and Men” was an ode “To a Mouse” by Scots poet Robert Burns a century and a half earlier. The reference is specifically to the following passage from the end of the penultimate stanza:

The best laid schemes o’ Mice an’ Men,
Gang aft agley,
An’ lea’e us nought but grief an’ pain,
For promis’d joy!

The poet, reflecting on how in ploughing his field he has wreaked devastation on a poor mouse’s homestead, highlights a theme which is no less relevant for us today than it was for Burns’ contemporaries, including the mouse; namely our frequent inability to foresee the potentially negative consequences of our plans and actions.

The theme is a perennial one in literature. Most of Shakespeare’s tragedies could be said to be poignant illustrations in one way or another of this principle. A quick search on http://www.goodreads.com reveals no less than 235  volumes currently in print titled with the theme of unintended consequences!

A more recent author who devoted his life’s work to elaborating on this theme in one way or another is Nobel prize-winning economist and social philosopher Friedrich von Hayek. His general thesis is probably most succinctly stated in his final, and relatively accessible work, “The Fatal Conceit” (1988), about which I have had cause to write elsewhere on the Societal Values website. The conceit of which he writes is that of governments or the supporters thereof who imagine that the state, by acting with the intention to address a problem or achieve a certain end, has at its disposal by virtue of it privileged position and power a sufficient grasp of what it needs to know to be successful in achieving the desired end.

I should also mention in passing Robert Turley’s 2008 book “The Rule of Law and Unintended Consequences“, which overlaps to some extent with the theme which I wish to explore below. He argues that the layers of amendments to the US Constitution and Bill of Rights, often interpreting language in the original documents in ways which it would not or could not have been interpreted at time of writing, often with the intention of bringing about changes in the ordering of society, are leading to unforeseen consequences which are often undesirable.

A real problem here is the ease which those who enact the original rulings in law avoid any sense of blame for the undesired consequences on the basis that, well, they were not what was desired. One could argue that what is going on here is a conflation of philosophical categories. When it is asked who or what is responsible for the present unholy mess, moral responsibility is typically denied by those who took critical decisions on the basis that there was no malevolent or mischievous intention. But that is a separate question from the question of causality: viz., whether, if a different decision had been made at the time, the current predicament could have beeen avoided. While the media are often energetic in pursuing the issue of moral culpability (we all love a scandal and generally celebrate when the scalps of politicians and lawmakers are collected), they show considerably less interest in what is surely the more important question, namely what can be learned from the situation to ensure a similarly unfavourable state of affairs does not recur. Such, if it is addressed at all, is likely to be through the setting up of a public enquiry which typically drags on for years and only reports back when the media (and consequently the public at large) have largely lost interest in the issue being investigated.

But the passing of new laws onto the statute books is only one way in which the mischief of unintended consequences is perpetrated in modern society. An increasingly common response to perceived problems or injustices is to call for increased regulation. For example the clamour has recently been renewed to implement the  recommendation of the Leveson Report to set up a press watchdog to whose jurisdiction newspapers would be required to sign up or else face draconian penalties. Whenever this proposal is resisted on the basis that it turns the clock back on hundreds of years of press freedom in this country, this argument is invariably countered by the suggestion that that is not the purpose of the watchdog, which is rather to empower the victims of media  (mainly celebrities it would appear).

Although the press continue bravely to resist, the encroachment of regulators into virtually every area of industry or professional arena, whether it be education, engineering, telecommunications, finance, insurance, aviation or the energy or automobile industries, the proliferation of red tape seems to know no bound. Of course, whenever this trend is challenged, the same tired old argument is trotted out that those who do not welcome each and every new initiative are in favour of deregulation and hence anarchy. Of course, it is always argued, the intention of the regulation is to prevent abuse and/or allow it to be addressed, so what objection can be raised against that? Well, if you don’t see the fallacy in that line of argument, you have not been paying attention…

However, rather than just lamenting the ever-increasing scale and scope of the encroachment of regulatory intervention, I would like to point out a more fundamental fallacy in the project to regulate our way to safety, security and prosperity. Let us ask ourselves, on what basis should we decide what is appropriate regulatory intervention in an industry, the operation of which is critical for public health and safety, or for the successful functioning of the national economy on which we depend for our livelihood?

In a complex industry, this is invariably a task which requires expert judgement. We would not expect the governance of critical industries to be put in the hands of anyone who was less than an expert. So it is that financial institutions employ ever-increasing armies of risk personnel and compliance officers to protect against mishap. And while schools employ few dedicated health and safety officers, an ever-increasing portion of each teacher’s time is eaten up by tasks required to comply with one or other regulation or other administrative requirement.

But is it “experts” who are in this scheme of things deciding how best to guard against risk or harm? While they may in moments of nostalgia have some recollections of a past life when human beings lived in a state of nature and evolved best practice based on experience, it is highly unlikely that any of the “experts” at the coal face of the industry, dealing with new issues as they arise, is afforded much autonomy to use their judgment or expertise to address them. Rather they will be expected to implement a policy which has been drafted and imposed by an administrative or managerial layer whose job is to do just that. There is no problem there, you may suggest, provided the policy is based on best practice. But where does best practice come from? Precisely from the experts with frontline experience, who find themselves being instructed by administrators who often have considerably less, or certainly less recent, experience.

But the problem does not stop there, because frequently those inside an institution are deemed insufficiently trustworthy or capable of codifying and enforcing best practice. For that reason external regulators have to be appointed and given draconian powers to perform that task. But how can someone who is not even a part of your organisation ensure your compliance with best industry practice? Inevitably, resort has to be made to the imposition of mandatory reports following a standard template, tickboxes and audit trails which can be inspected at regular visits. And before you know it safety, efficiency and best industry practice have become synonymous with compliance with the regulatory regime.

While this may work for a while, the inherent instability of this situation becomes apparent on a moment’s reflection. Prescriptive rules can only be written based on a fixed view of what the issues are. But if those rules are enforced and developed by a regulatory authority not working in one of the organisations they seek to control, they will not be aware of new issues as they arise. And those who are so aware are not empowered to address them because they lack either authority, time or motivation, or possibly all three, their main duty being to furnish evidence that regulations have been complied with. Furthermore the administrators above them are motivated the same way and in their dealings with regulators are unlikely to raise the subject of new issues they may be facing (even were they aware of them). More likely they will look to discuss with regulators only those issues brought up by the regulators themselves: the reward for being proactive is likely to be new requirements to implement yet more intrusive monitoring and evidence-collecting, all of which costs money and is damaging to their institution. It is not long before their priority has become to reduce to a minimum the number of points cited by regulators as requiring attention.

The end consequence of all this, an entirely foreseeable one, I would argue, is that organisations’ risk management policy ceases to be looking at the real risks which are coming up inside the organisation and is reduced to addressing instead the risk of attracting regulatory criticism. Stultified, inflexible, mechanistic rules purporting to reflect “best practice,” focussed usually on addressing the last big crisis drive out expert opinion based on more recent experience of current issues as the practitioners whose previous insights provided the authority based on which the regulatory prescriptions were justified are marginalised and reduced to passive “rule takers.”

Such consequences may not be intended; but they are foreseeable.

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Legality and Morality: Can Both be Served (and Justice Preserved)?

By Colin Turfus

The rules of morality are not the conclusions of our reason, David Hume

It is often suggested that obedience to the law is a virtue and by implication that respect for the law is a requirement of morality. But is this necessarily the case? Although this might at first might appear obvious, I would suggest the issue turns out on closer inspection not to be so at all. In the inherited concept of Common Law in the UK, what is required or enforced in law corresponds to established practice in society. So there is a natural coincidence between the requirements of legality and of morality. No problem there.

However, many laws on the statute book were not a consequence of the way ordinary people chose to live their lives or of publicly accepted standards they were expected by their peers to live up to, but rather represented an imposition by the powerful upon the weak. Examples of this were the iniquitous Corn Laws, the permitting of profiteering through the trading of slaves and the denial of full legal personality to women. It took vigorous campaigning over many years for the law to be changed in these areas. Few if any these days would suggest that the people who challenged these laws and sought to have them struck down or modified were not acting virtuously and in accordance with the requirements of morality (although aspects of the former have been reintroduced in the guise of EU agricultural policy and we are at risk of backsliding on the latter as the pressure grows to accept Sharia Law principles in the UK). Of course, that did not prevent those who did campaign against these injustices being characterised by many of their peers as agitators and subversives.

Fast forward to the present and we have what many would see as the 21st century equivalent: the Equality Acts 2006 and 2010 which enshrine rules preventing discrimination in a wide range of areas on the basis of a considerable number of properties such as race, age, belief, sex, etc. Ostensibly this can be viewed as a continuation of the same process of eliminating injustice from society and giving greater rights and protection to the oppressed. But does this characterisation stand up to scrutiny?

In terms of the intent it is hard to argue against such laws, whether from a moral or other perspective. But there is one clear difference here from the cases I mentioned above from the 19th and early 20th centuries: it was very clear in those earlier cases which injustices were being corrected in what situations, whether that be the principle that no human being can be the property of another or that the right to inherit wealth or to vote should not be denied one on the basis of being female. The more problematic aspect of the Equality Acts is hinted at in their name: that intrinsic to the legislation is the idea that everyone is “equal” and should be treated as such in society.

Whereas it is a rather binary thing whether women have voting rights or not, it is not so clear how a society can by legislation be transformed from one where people are not equal (and if they were, what need would there be for legislation?), to one where they are. In the first case, the act of discrimination or denial of rights is clearly defined and its violation easily identifiable: specifically, if or when a women is prevented from casting a vote at a public election. The unequivocal success of the older acts is evidenced in the number of people who have been prosecuted for violations in recent years (none) and, in the case of slavery, the fact no significant new legislation was considered necessary until the enactment of the Modern Slavery Act in 2015, nearly two hundred years later.

So, we might ask, does society today embody “equality” as envisaged by the acts? Few would suggest that it does. But, if it does not, who should be prosecuted and/or what remedial action should be taken? Here we start seeing the problematic of the idea of legislating for “equality”. For one, before the ink was even dry on the 2006 act, new protected characteristics were being added. This process was further extended by the 2010 act followed by an amending act in 2011 and another in March of this year (2017) which among other things imposed a duty on public authorities to publish data showing compliance with all provisions and indeed of actions they are taking to enhance compliance. This has given rise to a controversy over the the NHS’s recent edict that doctors should henceforth interrogate all patients about their sexual preferences and record responses in their medical history. It is argued that this is intrusive and an infringement of rights of privacy. But the NHS administration in acting thus is arguably only seeking to comply with the duties imposed by the Equality Acts. Are we as a consequence of all this nearer to an agreed state of equality or is the targeted end-state receding ever further into the distance? Who can say (especially since the NHS is yet to prepare and publish their data; and good luck to the people whose job it is to interpret it!)?

Then we have to start looking at the number of court cases which have been and continue to be engendered by such legislation, many of which have gone all the way up to the European Court of Human Rights, often visiting the front pages of the tabloids several times along the way. Numerous alleged violations have been successfully prosecuted. But equally, in many other cases individuals have lost jobs, important privileges and personal reputations without any court case occurring, often to protect the company employing them after allegations have been made, and frequently on the basis of actions taken or comments made entirely outside of any work context. Such may or may not have been the intention of those drafting the legislation, but it has been the result.

The challenging question we then have to ask ourselves in relation not only to Equality law but all law is: does the law as it stands conform to our moral perspective? Should we celebrate each time someone falls foul of its provisions and believe that through this our society has become just a bit more equal, and therefore better? Or is there not need for us to stand back and scrutinise the legislation, whatever its intent, for the outcomes that flow therefrom, and make an independent judgement based not only on the intent but also on the effect? And is there not a case also to challenge even whether the intent is coherently enough defined and/or sufficiently attainable by the proposed legislative means to merit our moral consent in the first place?

But to do this requires an independent moral perspective; and clearly that cannot happen if we conflate legality with morality. Ultimately the latter must be defined by what people, society, believe to be right and wrong. There must be flexibility here as, self-evidently, not everyone has the same perspective. But changing the law to define something to be illegal, does not make it wrong in people’s minds. And while it may force people to behave as if it were, there is no guarantee that people’s perspective will change over time.

The difference, I believe, with the big issues from the past which I discussed previously is that there were independent compelling arguments which people in their conscience found difficult to resist (even though they found themselves harmed economically) and which eventually won the day. The problem with legislation which is not enforcing a binary distinction but rather initiating a process towards an (often ill-defined) end state, is that it is much more difficult, impossible even, to adduce compelling moral arguments in its support.

Also, at the heart of politics has always been a tension between equality (emphasised on the left) and freedom (emphasised on the right), which reflects a difference in outlook which is ultimately personal. To favour one over the other in legislation is to politicise the moral realm and potentially to invade the sacred space of individual conscience, which is of course itself protected as a human right.

Colin Turfus has a PhD in applied mathematics and works in risk management. He is co-founder of the website Societal Values.

We are subject only to the rule of law

I had not thought much, until recently, about how meaningful it is to live under the rule of law, although this is a pillar of our democracy. Even in the world today it is unusual to live under the rule of law. All countries, barring failed states, have laws, but many legal systems exist to cement the status of a ruling class, ethnic group or political party, not to protect the interests of the nation as a whole. In China, for example, the common law is inefficiently and inequitably applied to ordinary people, but not the ruling elites. That is why until recently corruption was rife among the upper echelons of the Communist Party. Now under Xi the corrupt are being jailed, but also critics of the government. This is not the rule of law; this is the exercise of arbitrary power to consolidate political position. Such has been and remains the experience of most of mankind throughout history.

Under the rule of law, no person, class or party is above the law. In the UK we are not ruled by the monarch, the Church of England, Parliament, the military, the judiciary, the Tory or Labour parties, the rich or the aristocracy. We, and all the above, live under the rule of law. The proof of this is the very cynicism with which we regard all forms of power, as we are fed a daily diet of the misdeeds of the rich, powerful, influential and famous. For, gloriously, we have a genuinely free press; and I mean a free press constituted under the law, not the mob rule of social media; as we have seen in countless countries, where the ‘citizen press’ has been hailed as the harbinger of greater openness, no sooner does it expose the naked corruption of the ruling elites than it is ruthlessly suppressed. Only where the rule of law, and with it the freedom of the press, does not apply is there unbridled and uncritical admiration of the great and the good, as it is constituted essentially of fear and ignorance.

These thoughts were sharpened recently by comments made by some radical Muslims that participation in democracy is un-Islamic and the only law that should be obeyed is the law of Islam. They are only the most recent and egregious of a long list of democracy-deniers that has included fascists, communists, Trotskyites, anarchists, and an assortment of religious extremists who believe that they, and only they, have insight into a truth that is so self-evident that this places them beyond the considerations of abiding by the law, and frees them to act in ways to achieve their political goals only limited by the extent of their imaginations. For, make no mistake, these people only want one thing: to accrue political power over others. Let me repeat that, for it is something that is frequently overlooked in the rhetoric of religious doctrine or political philosophy: the intention of those who denigrate democracy and the rule of law is to exercise absolute power over their fellow citizens by violent means.

This should remind us why the rule of law is so important and needs to be vigorously proclaimed. Firstly, it protects our fundamental freedoms and rights to safety and security, not only to protection from criminal activity but also unwarranted intrusions of the state: our freedom to conduct business, to associate, to express our views, to make contracts that are binding, to enjoy ourselves through leisure pursuits, to have our marriages and family life recognised. Secondly, it imposes limits on what we can legitimately do, which keeps us within the norms of socially acceptable behaviour and within that to tolerate the many differences amongst us, be they differences of gender, race, ethnicity, religion, political creed, sexuality, lifestyle or simply character. The rule of law is the manifestation of the will of a people to live in a free and tolerant society.

The law also sets out a minimum standard of life and responsibilities as a citizen of the society. No one, and no religion or political creed has the right to challenge this, because the law is fundamentally the settled will of the people, manifested through their representatives, about the type of society they wish to live in. For example, I might feel uncomfortable about the idea of gay marriage because of personal inclination, religious conviction or because I feel it fundamentally alters the meanings we have traditionally attached to the concept of marriage in our culture; however, through the constitutional process, this is now recognised in law. Increasingly, discriminatory practices based on personal preferences are illegal and it cannot be denied that this makes our society fairer. Democracy, after all, is not the dictatorship of the majority. But while personal conviction can never justify breaking the law, there is nothing to prevent us living beyond the minimum requirements of the law, whether that be acts of piety, charity, love, compassion, forgiveness, volunteerism, enterprise, invention or inspiration. The law requires none of these, nor does it forbid any.

There are, of course, laws that are bad and need to be challenged and there is a fine distinction between the need to uphold the rule of law and challenging unjust laws, and this frequently involves a considerable degree of self-sacrifice, whether voluntarily chosen or imposed. An oft-cited example is Martin Luther King who broke the segregation laws of Alabama in the 1960s and went to prison as a result. Rather than expressing resentment King accepted that it was right that he was jailed, because he had broken the law, even though it was an unjust law. The moral philosopher Lawrence Kohlberg held this up as an example of the highest order of ethical perception. In a modest way we have seen an example of this in recent days of the quiet dignity of a released inmate of Guantanamo, Shaker Aamer, seeking no revenge, but only to reintegrate into British life and campaign on behalf of the remaining inmates, despite 14 years of imprisonment and torture in a place where the rule of law and natural justice was suspended, a situation with which the British state possibly connived.