Reinventing Legislation

Reinventing Legislation
By P. Orin Zack
(November 21, 2005)

Everyone wants to leave their mark on the world. Some do it through acts of creation; others, through acts of alteration or destruction. The choice is often guided by the environment in which you find yourself. Faced with an unplowed field of accomplishment, it’s a simple matter to build something that never was. But if you arrive into a world that’s jammed with the accomplishments of others, competing can be a daunting challenge. Which leaves you with a secondary choice of either using what exists as the basis for your own work, or destroying it.

Take, for example, graffiti. Is it an act of creation or destruction? To the building owner, it’s vandalism – the defacement of property that took time, effort and money to construct. But it’s also an act of creation, an art form that uses a pre-existing structure as a canvas. Holding both thoughts in your mind might give you a bit of cognitive dissonance, but I think that conflict of meaning holds the key to understanding what this country is really all about, as well as a way to change it for the better.

This change of attitude towards what came before is a direct result of whether you have a personal connection to the work that went into creating a building, organization or movement. People who build something are very unlikely to destroy it. Those who know someone who participated in its creation have some emotional distance between themselves and the creation, and are more neutral in their affection for it. But if nobody you know had anything to do with it, there’s no emotional reason for protecting it.

The form of government embodied in the Constitution was a collaborative act of creation, the blueprint for a political and economic structure that was subsequently raised by the people who participated as elected or appointed officials. It set up the rules, and laid the groundwork for the methods by which it could be altered, but it was those who came afterwards who built what we know today as the United States. They did it by building on what came before, and by using those raw materials to create layer upon layer of enhancements to and extrapolations of the original plans. All of this work was accomplished through the enactment and interpretation of laws.

But was the result an act of creation or destruction? The distinction is at the heart of the disputes over what the framers of the Constitution meant, and whether subsequent laws and interpretations are creative enhancements or destructive desecration of the intent of the framers. In many ways they are both, just as with graffiti. And because of the dissonance between these opposing views, we live in a country that is either greater than what the founders had intended, or in the antithesis of what they had in mind.

I suggest that it is possible to eliminate the dissonance by taking another look at the means by which all of these changes have been wrought, and re-casting the tools themselves into a more responsive means for creating the legal, economic and political structures that those who come after us will find around them.

Laws, as we know them, are static. Their content is dictated not only by the needs and desires of the people, but also by the impersonal influence of the fictional entities that we call corporations. But because the voice of the corporations is far louder and more insistent than that of the people, the laws usually benefit the corporations at the expense of the people. This is important because the single most important difference between people and corporations is that corporations, not being alive, do not die. Which is interesting, because neither do the laws. Unlike people, who go through distinct stages of growth, activity and death, laws are created fully formed, and remain static unless and until they are repealed. They might be interpreted differently over time, but the laws themselves are fixed.

But perhaps they should not be. After all, the purpose of a law is to dictate behavior in some way. Implementing a law requires some amount of preparation and growth before it can perform the task that it was created to do. This is like the childhood and adolescence of a person. The law achieves the equivalent of adulthood when those preparations have been completed, and it can then take its place among the ranks of other influences over behavior. Like a person, the adult law probably has a protracted period of participation in the wider world, during which time the world for which it was created changes in ways that slowly make the law either irrelevant, or out of step with the changed situation. People eventually retire and die, removing them from the situation, but the law remains on the books, regardless of whether there is any value to it being there, until it is removed.

So perhaps it would be useful to think about laws in a different way. Rather than crafting something to solve a problem facing the world and then carving those rules in stone, it might be more useful to create laws that are more about process than about results. A law made in this way would have three important parts.

First, there are the implementation details, which is essentially what we have with today’s laws. This part lays out the objective, and how it is to be achieved. But it would also have to specify a timetable for implementation. In some cases, this is a trivial matter, while in others it entails creating an infrastructure to implement the law’s objectives.

The second part sets up the normal behavior of the law, once it has been deemed ready to take effect. But unlike current laws, it would specify how the effectiveness of the law is to be monitored, and what action to take when the situation for which it was designed changes enough to render the law ineffective.
The third part of the law contains instructions for the demise of the law. This is not the same as a ‘sunset’ provision, because it is not triggered by a date, but rather by how the law influences behavior. For example, this section would trigger action if the behavior caused by its existence was simply to find ways around the law. Such behavior is a clear indication that the law has become ineffective, if not counterproductive.

By creating laws in this way, the legislated influences over behavior become active parts of the process. When conditions dictate, they place themselves on the agenda because action must be taken. If the behavioral influence is still desired, but the law no longer provides that result, the law must be deactivated, and perhaps a new one crafted to take its place. If the influence is no longer needed, then the law can simply be retired and removed from the books.

This kind of lawmaking would also provide another benefit: visibility. Because the effectiveness of the laws would be monitored by those with an interest in seeing that they not be sidestepped, and because knowledge of that changed behavior would automatically trigger the destruction of the law, the people would have far greater influence over the workings of government.

Copyright 2007 by P. Orin Zack

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