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Excessive law is no law

Natalie Solent links to this posting at Thought Mesh, about the realities of regulation. Thought Mesh seems to be US based, but the message is universal:

As you may know, I work in network security management. I’ve been off at a summit discussing the future of the product. While listening to our chief marketing guy talk about future requirements, he said something I found astounding. Paraphrasing, the gist was that our corporate customers cannot comply with their reporting and auditing requirements. There are so many and they are so detailed that compliance is apparently no longer possible. The point for us is that any auditing done by our software should be designed with this fact in mind and so, rather than verifying compliance should be able to document the level of failure to comply.

Further, it seems that this situation is known to the regulating agencies and the requirement is now not actual compliance, but “improvement” over time (which is where our reports can contribute). It’s the “no child left behind” theory of corporate regulation. One is left to wonder if we shouldn’t be trying for a set of regulations that is actually possible to obey. The answer, of course, is that it’s best for the regulators if everyone is guilty of something. Then when bad things happen, there is a nice selection of the usual suspects to pin the blame on, all of them disarmed because they are in violation of some regulation.

In another sense, it’s cargo cult regulation. Some good company is observed to perform some action. Therefore if every company is required to do that, they will be good companies. In fact, this kind of regulatory environment, with endless obscure rules and universal compliance failure, is perfect for the sophisticated con men. Not only does it provide a thicket of procedures to hide in, but it distracts everyone into watching the forms without time to worry about the results. All that good corporate governance in Europe let Parmalat get by with shady accounting longer than any American company. It seems like there’s a lesson there somewhere.

And here are the first two comments about this at Thought Mesh. This from “anon” (no wonder!):

“our corporate customers cannot comply with their reporting and auditing requirements.”

This is so true.

I work in networks too, and every year I get sent a questionnaire by central auditing. It always contains a question like “Do you regularly monitor your audit logs to search for [some bad event or other]?”

If you answer No (being truthful) and go on to explain why it is impossible – like for instance, the log is a squillion pages long, unsearchable free-form text, and doesn’t log [super-bad event] anyway – then they nag you to death demanding to know when you are going to start, never mind that it’s impossible etc etc.

Whereas if you answer Yes (lying) you never hear any more about it.

So guess which answer they get?

What purpose is served by this? The one you mention, I imagine – if anything goes wrong I can be screwed. Well, I will be anyway, so who cares.

And this from vbc:

You say that it seems like there is a lesson in there somewhere. There is, and it was formulated nicely by the ancient Roman, Cicero:

Excessive law is no law.

Indeed. But not “heh”.

20 comments to Excessive law is no law

  • Steve in Houston

    “When I make a mistake, I have eight different people coming by to tell me about it. That’s my only real motivation is not to be hassled, that and the fear of losing my job. But you know, Bob, that will only make someone work just hard enough not to get fired.”
    — Peter Gibbons, Office Space

  • Anony Mouse

    Heh! In the rather large U.S. bank I work for, we are required to encrypt the secret keys we use to access servers. Of course, encryption means we must use secret keys. Which must be then encrypted… We’re hoping to create a solution that’s to complex for the auditors to follow.

  • I have an entire series on my blog entitled Department of Anarchy regarding the quest for some institutionalization of the common sense impulse to limit and reverse senseless regulation.

    It would seem to me that the solution is to make some sort of procedure that is triggered at a certain level of noncompliance which requires a dead halt to further regulation without eliminating enough compliance costs so that business can actually follow the law.

  • toolkien

    The world is organized chaos and its all about the who the guys with the guns want to hassle.

    It’s my belief that once an organization hits a certain point in size, it approximates what anarchy would be like as people generally will want to be in some sort of general compliance and deviate at about the same rate that any cross check would stop looking for non-compliance. Then its simply someone with a self serving agenda looking to make examples to rest (who take a brief glance and go about their mild malfeasances). Any association beyond a certain membership ceases to be controlled as whole and its only ‘hassleable’ minorities who bear the brunt of the central authority’s attempts at flexing their oversight muscles.

    Of course there is the added component of ‘institutional non-compliance’ is that the non-compliance is allowed to slide until some third party raises a stink and the authority is pressed into actions they should have taken some time before (at least according to whatever ‘charter’ authorizes them).

  • David Gillies

    Corruptisima republica, plurimae leges – the more corrupt the republic, the more laws (Tacitus, Annals III 27)

    In my darker moments I wonder whether the profusion of regulations to the extent that no-one can possibly be in compliance with all of them is not a deliberate ploy to ensure that no matter what you do, the State can nab you for something.

  • Julian Morrison

    I’d say it broke even before it became absolutely-in-theory impossible to comply. It broke when the number of laws reached the thresold where only a professional lawyer could hope to be fully informed. Ignorance is an excuse.

    The number of actual necessary laws would IMO fit in a small booklet, a night’s read. That’s covering everything: crime, liability, contract, land, property, inheritance, etc. They are also the ones most everyone follows, from common sense. The rest are hair-splitting, class war, nannyism, and special interest backhanders (in which category I count the whole tax system).

  • LB

    This reminds me of two of Frank Herbert’s books – “The Dosadi Experiment” and “The Whipping Star.” The protaganist is an agent of the Bureau of Sabotage. The State has become so ‘efficient’ in meeting the demands of either the populous or the politicians – and thus smothering and over-reaching – that it had to create a agency to prune itself back – with violence if need be. “Dosadi” also has a very interesting twist of the legal system.

  • There is so much legislation making it to the statute books it is impossible to know the law. Since 1997, the British parliament has passed 312 public Acts of Parliament. Many of these are complicated pieces of legislation extending to hundreds of clauses. They also create provision for making regulations via Statutory Instruments, and there are dozens of those passed each year and scope of secondary legislation has been widened considerably in recent years. This is before considering legislation passed by the devolved assemblies.

    A full time lawyer would not be able to keep track of all of this. Even lawyers specialising on one area of law will likely have trouble keeping track of everything relevant.

  • Doug Collins

    Perhaps one solution would be to forcibly require the members of the legislature to read aloud ALL of the laws that they passed during a session, including all the sub paragraphs and sub sub paragraphs.

    It would probably be too much to expect them to read the laws BEFORE voting on them.

  • Julian Morrison

    Or, better, the old viking practice of the “law givers” having to at least once recite aloud the entirety of the law of the land from start to finish, verbatim.

  • David Gillies

    In my darker moments I wonder whether the profusion of regulations to the extent that no-one can possibly be in compliance with all of them is not a deliberate ploy to ensure that no matter what you do, the State can nab you for something.

    This has crossed my mind on more than one occasion, fuelled as well by my astonishment at just how widely current laws appear to be drafted. The effect of this is to leave everyone in a kind of limbo, unsure as to whether or not they are breaking the law at any given time.

    We don’t really have ‘laws’ anymore, we just have grand enabling acts that cover whole swathes of social and commercial conduct. In almost all cases they are dangerously open to interpretation.

  • Steve LaBonne

    “In my darker moments I wonder whether the profusion of regulations to the extent that no-one can possibly be in compliance with all of them is not a deliberate ploy to ensure that no matter what you do, the State can nab you for something.”

    While that’s a very tempting conclusion, I tend to heed the old aphorism “Never attribute to malice what can be explained by stupidity”.

  • hello
    could you please explain why you are superior to any other being, animal or otherwise. thanks. I’d be interested in any answer other than “because I am” – that is all I can get from people I have asked so far – academics and all – and that smacks of religion to me…

  • In the early 90’s, I worked for a company in Atlanta, Georgia by the name of R.A. Roth, Inc. We were one of the largest rock-touring lights companies in America. Big, big acts. When Robert Roth designed lights for Michael Jackson’s “Victory” tour (long before I got there), Robert didn’t go to consult with Michael: Michael came to see Robert. That’s how well things had been going. Robert built that company starting in his father’s garage when he was a kid.

    By 1992, he had opened a trucking division called Night Moves Transfer. They moved rock tours all over North America. When I wasn’t touring as a director or master electrician, I worked in the offices, drafting lights designs with AutoCAD. One day, I swung past the NMT office, which was managed by a very sharp — motivated and competent — young woman.

    I saw her sitting with her elbows on her desk, her head in her hands, in a timeless human posture of exhaustion. I dropped in and asked how she was doing.

    She explained to me how the sheer paperwork of her gig was just kicking her ass. It’s been a long time, and I can’t describe in detail all the alphabet-soup regulatory agencies to whom she was responsible in order to keep Night Moves on the road. However, at one point, I asked her how much real work she could get done if she wasn’t constantly attending the arbitrary demands of bureaubots who didn’t produce a goddamned thing in the business that was keeping us all alive for our efforts.

    She lit up a cigarette and blew out the first hit with a look at me like I was some kind of a moron. She knew better, of course. The thing was manifestly obvious to her.

    I then told her, “Take that dynamic, and project it across the entire country. Think about what is not getting done, and think about how everybody could live if they were only free to produce.”

    Like I said: Amanda was sharp, but she was young. It had never occurred to her to consider just what was getting killed, every day, just like she was, that day.

    Last I saw her that afternoon, she was staring out the window into space, at something she’d never seen before.

    R. A. Roth went out of business in 1995. The fact is that Robert made a couple of poor business decisions, and he got drilled by The Red Army Circus tour for an enormous sum in default. But he also got squeezed by the rise of bureaucracies (like OSHA, for only one example) that began to discover rock touring as a business that, by the early 90’s, had gotten big enough for them to feed on for real. They already had the rest of the country wired-up, and people who worked in our business were some of the last (yes) cowboys in the culture: real independents who took our own chances on our own abilities.

    They ate Robert alive in the very margin of survival where he would have made it without them doing what they naturally do to people like him.

    “But, after all, I did break one of your laws.”

    “Well, what do you think they’re for?”

    Dr. Ferris did not notice the sudden look on Rearden’s face, the look of a man hit by the first vision of that which had sought to see. Dr. Ferris was past the stage of seeing; he was intent upon delivering the last blows to an animal caught in a trap.

    “Did you really think that we want those laws to be observed?”, said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against — then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you’d better get wise to it. There’s no way to rule innocent men. The only power that any government has is to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted — and you create a nation of law-breakers — and then you cash in on guilt. Now that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.”

    Watching Dr. Ferris watch him, Rearden saw the sudden twitch of anxiety, the look that precedes panic, as if a clean card had fallen on the table from a deck Dr. Ferris had never seen before.

    (Ayn Rand, “Atlas Shrugged”, 1957, p. 436, emphases original)

    I was there, once, and I saw the whole shitty thing happen.

    Those were the best working years of my life, and I don’t expect to see anything like them, ever again.

  • Ps. — the citation from Rand is at p. 411 of the old Signet paperback edition.

  • veryretired

    Billy Beck beat me to it, as the intent of many rules and regs is only to create wrongdoing, and make possible penalties, guilt and slander, of the hapless “evildoer”. The ludicrously convoluted campaign financing laws in the US are a perfect example.

    As a boomer, I find it bizarre and hypocritical for my generation of “question everything” types to be so sanctimonious in their support for more and more rules about everything under the sun. But, then, I am a radical, and not a fan of my fellow “me, me, me’ers”.

  • Guy Herbert

    Not only is it impossible to know all the words of the law, as several have ably pointed out; but it is impossible, even if you could recall it exactly, to know what it means. The tiniest fraction of all this new law will be tested in court. Only when skilled counsel test it and judges rule on it that we can know how, or if, it properly applies.

    It achieves its ends by escaping the role that we expect for law. It is no longer the subject matter of judicial process, but a means of intimidation in itself. The state is constantly assuming Dirty Harry’s position: “It might do nothing, or it might just blow your head off. Feeling lucky punk?”

  • The word “impossible” is subject to different interpretations. In context, you are using it more or less to mean “infeasible”.

    When I worked at Tektronix, we ran into a case where obeying certain government regulations was literally impossible, because the laws of physics prevented it. The FCC had set some limits on the amount of EMI we were permitted to emit from probe cables, and it turned out that the standard could only be complied with if we could figure out a way to change the Universal Electrical Constant.

    A couple of our engineers had to make a special trip to Washington to teach FCC bureacrats a remedial course in physics, so as to convince them to change the regulation.

  • Guy Herbert

    Without being theoretically impossible, regulations can still be impossible in practice, as opposed to merely impracticable, without conflicting with other regulations or being incomprehensible.

    In the EU we have the Common Fishing Policy which sets catch quotas by species, allegedly for conservation purposes. No doubt it is obvious to a bureaucrat how one decides which fish will be caught (over and above affecting the probability that they are around by fishing in particular places and conditions) before they are. It must also be clear how having accidentally hauled up and killed the wrong fish, the fisherman is contributing to conservation by throwing them back and having another go. But it beats me.

  • David Gillies

    One of Hayek’s insights was that the Rule of Law demands that the corpus of legal requirements be sufficiently simple that the consequences of pursuing a given course of action can be accurately predicted. A corpus as large as those in place in modern countries does not conform to this requirement, and is thus indistinguishable in practice from arbitrary diktats. Ergo, there is no Rule of Law in modern societies (at best, the Rule is Law is highly attenuated).