The Proliferation of Laws in the First Dimension
Laws have become so extensive, detailed, and complicated, that most citizens simply cannot understand them. They have to resort to the expensive services of specialists to be able to enforce their rights in courts of law or in the face of the massive and labyrinthine workings of government bureaucracies.
An example often used in popular media is tax law in the US. Many have lamented its monstrous length, pointing out that the official set of federal tax laws (Title 26 of the US Code) is 2,600 pages long—twice as long as the Bible! And yet these pages are just the tip of the iceberg. In order to fully comply with tax regulations, individuals and businesses must also read the more detailed tax regulations contained in the Code of Federal Regulations. These are further rules issued by the competent government agencies to explain what is left unsaid in the US Code. On taxation, these regulations are set down in approximately 9,000 to 13,000 pages, depending on whose estimate you believe. And even this is not enough, because a lawyer or accountant involved in tax litigation would probably have to consult the massive corpus of case law on taxation, which currently consists of over 70,000 pages.
How did laws become so long and complicated?
We all believe that laws should apply with equal precision to every individual, corporation, and instance, no matter what the circumstances may be. So, there ought to be as many laws as there are human experiences in order to adequately cover every situation in which we might find ourselves. And because we have come to see the state as the guarantor of our rights and freedoms, we expect it to shield us from all threats to life, security, or well-being. We have become entirely dependent on government to define and enforce proper behaviour, and this has absolved individuals and communities from having to make moral choices on their own.
When it comes to the penal code and the tax code, our incessant efforts to shirk our responsibilities means that government must continually modify and expand laws to account for new tactics of avoidance.
In everyday life, the need for regulation is even greater. When we walk into a restaurant, we expect that it fully complies with health and safety regulations. When we seek treatment at a hospital, we expect that all safety regulations have been adhered to, that the hospital employs qualified personnel and carries malpractice insurance. When we send our children to school, we expect the school to comply with all safety rules, to employ teachers and administrators who have the proper certifications and have been subjected to background checks, to follow all guidelines on curriculum and testing, and to offer programmes for children with special needs. When we enter an office we expect it to have followed all building codes, including fire safety and handicapped access, to be fully insured against mishaps, and to regulate the behaviour of all employees so that we are not subject to abuse, exploitation, or sexual harassment. When we shop at a supermarket, we expect that all products have been grown, processed and packaged according to strict safety and hygiene standards, and to be properly labelled so that we can avoid allergens, contaminants, and expired ingredients. When we buy an electronic product or a pair of jeans, we expect that the manufacturer has obeyed all laws regarding quality assurance, safety testing, fair labour practices, and disposal of waste.
These are our expectations as consumers in the economy and citizens in the society we share. Because these expectations are so extensive and specific, we need laws that are equally detailed. Essentially, we want every potential instance of disagreement codified and legally described, either in statutes and regulations (civil law) or, at the very least, in legal precedents (case law). As a result, we live in an environment where the average citizen is far removed from the impenetrable thicket of laws, neither fully understanding them nor able to comply with or contest them without the help of specialists, often with considerable cost and commitment of time and other resources.
Is this the realisation of the dream of a civilised, rational, effective society? Is it the culmination of all our aspirations to liberty and democracy? Is the law as we know it a manifestation of liberty, or an impediment to it?
The current state of law is not only a practical handicap in everyday life, but also a pressing economic problem. Excessive regulation in business leads to higher costs for the consumer, because companies have to invest heavily in compliance officers and procedures, as well as insurance against all manner of potential litigation. Legal obstacles to starting and operating business makes an economy less competitive, leading to losses in productivity, employment, and especially investment. And large, beneficial infrastructure projects are frequently delayed, or shelved indefinitely, because of the need to comply with a myriad national and local laws.
The sheer multiplication of laws and statutes, and the exponential increase in the complexity of laws, means that legal matters can no longer be understood, let alone litigated, by a layman. Legal proceedings are the exclusive preserve of highly specialised, skilled and sought-after attorneys and legal experts. Only these expert—those who have an expensive education and years of experience in navigating the maze-like environment of legal confrontation—may hope to participate in the process. Their knowledge of the legal system and its various loopholes, hidden traps, extensions and exceptions allows them to exploit the system in their client’s favour, often dragging out proceedings until the opponent has exhausted their patience or financial resources.
Not surprisingly, such skill and specialised knowledge come at a high price. The Laffey Matrix (a widely used schedule of reasonable hourly rates for attorneys in the US) reports that in 2015 the average hourly compensation for an entry-level lawyer with less than three years’ experience was about $330, while an experienced partner with twenty years of bar experience typically billed close to $800/hr. At the top corporate law firms, these rates can be much higher. The National Law Journal reported in 2014 that senior partners at top law firms in New York often charged in excess of $1000/hr. At such firms, even the time of a simple paralegal may be billed at close to $200/hr. Not surprisingly, these exorbitant legal fees have translated to high overall legal costs. The National Center for State Courts reported in 2013 that a simple automobile tort case typically cost $43,000 to litigate, while a malpractice suit had a median legal cost of $122,000.
In the high-stakes corporate arena, these costs can balloon quickly. A survey of Fortune 200 companies undertaken by Duke Law School in 2008 found that these firms paid, on average, $115 million in outside litigation costs each year. A report by eLawForum confirmed that the combined spending by Fortune 500 corporations on litigation was $210 billion, equivalent to one-third of after-tax corporate profits. The legal system, in other words, has become the domain of the wealthy, because only companies and individuals with very deep pockets have the resources to persevere long enough to prevail.
The proliferation of laws has given rise to ethical problems as well. In the dense tangle of rules that seem to regulate everything from a lemonade stand to a multinational conglomerate, we have lost sight of the moral core of lawmaking. We are, effectively, alienated from the process of obtaining justice. Today, much of our effort goes into observing the letter of the law rather than the spirit of the law. This has effectively removed any sense of individual responsibility from thinking about, engaging or even being aware of one’s obligations as members of families, communities, businesses and nations.
This alienation is a kind of apathy that encourages us to flaunt the law whenever we can. We continually underreport our earnings to reduce our tax burden, we drive faster than the speed limit whenever we can get away with it, and we engage in litigation over property whenever there is an opportunity, or a loophole or a technicality, that will allow us to gain something that we know does not properly belong to us. Using loopholes and exploiting so-called “grey areas” is condoned as long as we (and our lawyers) feel we meet the most literal interpretation of the law. The state absolves us as long as we are “law-abiding” in the most technical sense. This leads us to ignore the prompting of our conscience because it is not in our hands to ensure that justice is carried out. This reduction to literalness stems from the fact that the law is no longer rooted in morality.
Clearly, there is a deep and urgent need to redefine our understanding of the law, starting with a drastic simplification in the number, length, and level of detail of laws to which both individuals and businesses are subject. Freedom from excessive regulation, and ease of doing business, ought to be guarantees in their own right. The right to a simple, accessible legal code that can be exercised by everyone without the help of lawyers is a cornerstone of the Second Dimension.
The Law Simplified in the Second Dimension
The first thing we must do in order to reform legal systems is to radically simplify the corpus of laws. Let us begin by formally defining three distinct forms of legal regulation:
A law is a social covenant dealing with a profound, all-encompassing principle related to the creation, extension, and deepening of a human right or freedom.
A rule represents a set of parameters designed to achieve the principal objectives of a law in an operational realm.
A protocol is a compendium of generally accepted best practices in a particular domain, ideally transmitted as a template that can be applied as needed.
Laws, at the top of the hierarchy, ought to be short and clear, and need only be revised or added to on rare occasions, when a fundamental change in a society’s needs or beliefs has occurred. Universal suffrage, the decriminalisation of homosexuality, the new definition of privacy in the age of electronic data—these are examples of landmark issues that signal a fundamental shift in our understanding of what it is to be human and a member of society, so they merit the attention of the highest legislative body. Laws should be aspirational, pointing the way to an ever more enlightened future, rather than merely reacting to current events or pressure from entrenched interests. Stripped of cumbersome legal language and specific applications, a law ought to take up just a few sentences of text.
Rules and protocols operationalise laws by filling in the details, describing variances in specific circumstances, and providing practical guidance in their application. They are composed and maintained by specialised government agencies staffed by experts.
By way of example, let us take a fundamental Second Dimension right: the right to clean air. From this indispensable right one may derive one or more laws governing access to clean air. The most basic law derived from this right would be quite brief, not much more complex than a simple statement requiring that all citizens have free, uninterrupted and unfettered access to air deemed to be clean enough for human consumption by the appropriate environmental agency. From this law we could then elaborate various rules to make the law practicable. In this case, the rules would most likely consists of a set of indicators of air quality, and the minimum measured values required to fulfil the law. Finally, a more comprehensive and detailed set of protocols would further explain how, where, when and by whom the rules must be upheld. These protocols are essentially “best practices” developed over years of air quality management. In this case, they would contain technical details such as the equipment to be used, the location where the equipment must be installed, how frequently measurements are made, how daily and annual averages are computed, what international standards are applied to the measurements, what audit procedures must be observed, and so forth.
The multi-tier structure of laws, rules and technical protocols, you might argue, already exists in some First Dimension areas of law. Referring to the discussion of US tax laws above, for example, we might say that Title 26 of the US Code constitutes the laws on taxation, while the rules are found in the Code of Federal Regulations, and the protocols in other documents, including the many volumes of case law on tax issues. Now imagine that the 2600 pages of tax law could be stripped down to 26, and the roughly 10,000 pages of IRS rules could be condensed and simplified to 100.
How could this be achieved? The answer is to push more and more legal requirements down to the level of technical protocols, and to further rationalise these protocols by making them universal, such that authorities in different jurisdictions, even different countries, can adhere to the same standards. If we live in a world where human rights and freedoms are considered universal and transcend all boundaries, then laws derived from them ought to be equally universal, and so on down to the level of protocols.
Some of the most useful protocols already govern many activities that are indispensable to modern life. For example, national accounting standards like US GAAP are gradually being subsumed under the International Financial Reporting Standards (IFRS), which are designed as a common global language for business and will ensure that company accounts are understandable and comparable across international boundaries. In a completely different field, the safety regulations issues by the US’s Federal Aviation Administration (FAA), which have helped to create the safest, most reliable, most efficient transportation system in the world, and have become a de facto global standard for commercial air travel. In banking, the Basel Accords form the core of a universal standard of banking procedures.
Detailed, exhaustive regulations are necessary in highly technical domains, but they can be confined to protocols consulted only by specialist users like aviation engineers and risk managers. They form a blueprint for the day-to-day operation and maintenance of vital systems like banking, transport, electronic communications, environmental control, and so forth. They should not, however, be confused with laws, which must remain foundational interpretations of our endeavours as a civilisation, their meaning and relevance understood by everyone.
Conscience: The Law of the Third Dimension
The simplification of laws and their reduction into rules and protocols will not be sufficient in the long run. In a Third Dimension setting, we must turn inward and allow our conscience to determine a far greater proportion of our daily decision-making process. As sociologist Philip Howard remarked once, the only viable solution to the legal tangle in which we find ourselves is “to restore human responsibility as the activating force of law and regulation”.
By the end of the Second Dimension, the emphasis in lawmaking will shift from the letter to the spirit of the law, and we will focus on bringing the spirit of the law in alignment with our inner morality, or conscience.
What do we mean by conscience here? Conscience, or moral responsibility, is the ability of an individual and a collective to see the wider implications and consequences of their actions and to infuse their actions with this understanding.
Most people today go about their business ignoring the fact that every action, every decision, every choice they make is profoundly connected to the lives of others. No action or choice made by one individual, therefore, is exempt from moral responsibility. And the only way to acknowledge this is to look around ourselves and understand the myriad ways in which we are bound to other individuals, to common interests and histories, to the social environment within which we move. This is the only way to develop genuine conscience and apply it consistently to every activity and intention.
In a Third Dimension society, laws will be aligned with conscience. More importantly, the fact that individuals are driven to act according to their conscience will reduce our reliance on written, codified laws, such that most legal codes can be slimmed down, in most areas, to essential guidelines.
This understanding of conscience is informed by the concept of dharma. Dharma is a complex and elusive principle that has vexed generations of scholars because it has no exact definition, and no exact translation. In English, it has been variously translated as duty, custom, law, destiny, morality, virtue, justice, character or nature, righteousness, and so forth. But each of these definitions invariably reduces its meaning. Here, we distil the concept of dharma to a simple statement:
Dharma is the recognition of the interconnectedness of all life, and the resultant duty to live in harmony with all life.
Dharma relies on some essential practices, especially self-control, patience, forgiveness, compassion, truthfulness, reason, learning, and the avoidance of anger. Some of these practices may have been defined originally in ancient Vedic texts, but they are common to several of the world’s great philosophical traditions. More importantly, they are universally accepted norms of civilised behaviour in any progressive, enlightened society.
In the Third Dimension, everyone will abide by their dharma or duty to harmonious living. Peaceful coexistence becomes the only law. By applying dharma to all decisions and actions, individuals, groups and organisations will be able to identify the proper course of action. At a personal level, individuals will be guided by the ancient but simple idea of doing unto others as we would like them to do onto us. In other words, to treat people in every situation in the way that you would have liked to be treated if the roles were reversed. The widespread existence of moral conscience in people will signal our arrival as a Third Dimension society and this, in turn, will lead to an upsurge in wellbeing, happiness and a large-scale reduction in violence and unnecessary suffering.
Trusting our fellow citizens to follow their conscience sounds risky, of course, especially from our cynical First Dimension reality. That’s because, to quote Howard once again, we have tried too hard to “create a hands-free legal code, without any risk of human frailty”. The accumulation of detailed laws and courts of law has lulled us into believing that all we have to do to be considered lawful is to follow the letter of the law. We have abdicated moral responsibility to an impersonal written document and the attendant machinery of justice, relying entirely on organs of government to implement and enforce laws. In the process, we have lost the ability and the willingness to make decisions based on our own inner moral code.
If we place moral responsibility squarely on the shoulders of each person, we restore accountability to the level of individual behaviour. The absence of detailed laws, rather than their proliferation, will encourage individuals to act according to their conscience. And the widespread application of conscience will greatly reduce the need for oversight by courts and law enforcement agencies because conscientious behaviour will be audited by the entire community: by our families, neighbours and co-workers. As society evolves, the nature of laws will undergo a dramatic transformation from externally applied to internally directed.