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Jan
19
The rise of the regulators?
January 19, 2010 | 6 Comments | Stephen King
In the Weekend Australian, Robin Speed pines for a lost legal world. Gone are the days when citizens knew the law and could comply voluntarily. Now legal complexity means that citizens must rely on regulators to interpret the law and (apparently arbitrarily) chose a few to prosecute as a warning to others.
They [the regulators] therefore announce how they will apply the law, impose penalties on those who act otherwise, and reward those who act in accordance with their blessings. A few are prosecuted as a warning to the rest of the community. In this way, the rule of the regulator begins.
I agree that the volume of laws means that the average person can have little idea of the intricacies of, say, the Tax Acts. However, Robin pines for a world that I doubt has ever existed.
To see this, take the laws governing speed on our roads. These are well known by drivers and drivers are regularly reminded of the legal speed limit by road signs. But compliance still remains a function of the relevant regulatory authority (the police in this situation). Further, drivers know that the police enforce compliance and many drivers play a simple game with the police. Either implicitly or explicitly, the police announce their ‘tolerance’ for speeding – perhaps 10% over the limit before you will get booked. Then motorists respond – some going right up to the ’10% tolerance limit’. Thus, a 100kmh limit becomes a 110kmh enforcement threshold, set by the regulator.
Of course, some people break this tolerance threshold. But the police cannot possibly catch all such motorists. So they make decisions (where to patrol for example) which mean that some speeders are caught and a few are prosecuted through the courts.
Occasionally, the regulator will change its self-imposed enforcement threshold. This occurred about 5 years ago in Victoria when it was announced that speed limits would be strictly enforced. This did not occur due to a court decision or an Act of parliament – although from memory the police were reacting to significant pressure from State politicians who were worried about the road toll.
So two points. First, the enforcement of legal compliance by a regulator and with regulatory discretion is inevitable in a society where the state has a role in enforcing the law. Second, while legal complexity may increase regulatory discretion, it does not by itself mean that there is a move from court enforcement to regulatory enforcement.
Comments
6 Responses to “The rise of the regulators?”
Stephen – I’m not sure that Victoria Police are a good example to make your point. Afterall they are being pilloried around the traps as being somewhat lax in enforcing the law. While traffic laws are being over-enforced (not that I have any sympathy for people caught speeding) they have clearly chosen to under-enforce laws against violent crime.
You seem to be arguing that two wrongs make a right. The fact that many people speed when they know they shouldn’t is irrelevant. The problem is the 1000′s of other laws we break daily without knowing about it.
I thought much the same way as you did when reading the article, Stephen. The bigger point he missed was the question where all these additional benevolent regulators with discretion are going to come from to enforce the new 100,000 pages of law each year: his point that law-writing has spiralled out of control and beyond any historical antecedent is simply true and this glut surely creates more discretion than there was. Where will we find the well-meaning regulators who can handle that increased discretion?
It’s really hard to regulate people effectively. There’s this idea that if something is wrong, we should just “pass a law” and all will be fixed. But think, for example, of music piracy. The media industry have decided to go in “boots and all” – seeking gaol sentences on individuals who download pirated music, large monetary penalties and fines, closing down file sharing sites which allow piracy, campaigning against piracy, yaddah yaddah yaddah. Nonetheless, they’re still fighting a losing battle because on some level, many people don’t believe it’s wrong to download pirated music.
Thus, if you pass a law which is too far out of accord with the views of the majority of the general populace, no matter how well intentioned it is, or how many people you have to regulate and enforce it, it won’t work. Unless you have some kind of police state, of course…but even then… I remember reading some reminiscences of a guy who’d gone to school in Nazi Germany where the penalty for childish pranks could be high indeed. Did it stop childish pranks? No. It probably put some kids off, but it just increased the excitement and buzz for others.
On the other hand, for example, with regard to violence in Melbourne, I do believe that it has increased because of a failure to police and prosecute people – if people believe that they can get away with it, of course they will be more likely to indulge in violence.
So, for some laws, it doesn’t matter how many regulators you have if there’s no moral, social or economic incentive to change your behaviour, and if society basically doesn’t believe the law in question is necessary. For other laws, you do have to have people enforcing them for them to work.
[...] CoreEconomics, I came across an article in The Australian about the rise of regulators. Robin Speed, President of [...]
Legal Eagle’s point on acknowledging the limits of law is one that should be seriously taken on board by serious people. The music piracy example is excellent. Up until very recently, the great wealth amassed by pop/rock sensations largely (though not only) reflected the distribution technology of the time, and the attendant IP laws that could operate with that technology.
It was basically a monopoly distribution play. That monopoly has now collapsed, and the hoards are rushing in. Law cannot corral them; at least not until entrepreneurial smarts create new commercial organizations.
The other great victim of assuming ‘law will right all wrongs’ can be seen in the current Melbourne wave of attacks on Indian students. The cries against the Victorian police and parliament are understandable, but an equally, if not even better, sane policy suggestion is to tell Indian students what our parents/friends tell the rest of us: Avoid working after midnight in jobs if you do not have a car; go into debt to avoid living in violent suburbs; don’t travel overseas to study if you don’t have enough money!
The outraged, “you’re blaming the victim! Everybody has the right to walk wherever they want, whenever they want!” is an example of a naive faith in the law. The law would dearly love to be able to meet that preventative expectation, but it is scant comfort to the Indian (and let’s face it, all ethnicities/demographics) student lying alone, bleeding to death at 3 a.m. in a Footscray park.
I know it is against the law for anybody to steal my car. I know the law will punish anybody who does. Nevertheless, there is no way in hell I am going to leave my BMW keys on the roof, when I park my car in Harlem.