by Daryl Dominic Tan
I recently had a conversation with someone who was blaming Capitalism for all the woes in the world, and predictably enough, he was spewing platitudes that a typical denouncer of the free market would make - that legislation encompassing all sorts of regulations are necessary to keep big businesses and corporations in line to ensure that they do not become too big and powerful with the ultimate goal being to protect the common man. I responded rather harshly, telling him that the only ones who benefit from such regulations are the big businesses and corporations themselves because they are wealthy enough to afford armies of lawyers to navigate their way through complex webs of regulations and thousands of pages of hieroglyphic legalese.
Who suffers from the existence of these burdensome and complex regulations? The common man; the small business owner; the old guy who has been running a mom and pop shop for 40 years - these folks aren't able to afford good enough lawyers to cut through the technical jargon for them. This is ultimately how corporations become bigger and bigger - through weaponizing regulations that were originally intended to 'curb' their dominance in the market.
What's worse - because these regulations come into effect via the force of law, career politicians who love the glitz & glamour that comes with wearing fancy suits and attending fundraisers and who wish to remain in their cushy roles for as long as possible are often times funded by corporations to draft regulations on their behalf and push them through the legislative bodies they belong to (often Congress or Parliament - depending where you are). This is an insidious cycle. Corporations fund the campaigns of certain politicians to be re-elected, and in turn, these politicians do everything in their power to ramrod regulatory legislation through Congress or Parliament that would help their backers remain dominant in the market. In other words - you scratch my back, and I scratch yours.
If you think this is the worst part about the existence of such burdensome laws and regulations - I'm merely scratching the surface.
In 'The Road to Serfdom', F.A. Hayek famously stated his case for good governance being grounded upon what he termed "The Rule of Law". "The Rule of Law" is named as such because the fundamental aspect of "Law" is to also govern the men who pass and enforce laws. Laws are therefore supposed to be above everyone - governing nobility and peasantry alike - distinct from "The Rule of Men". Hayek set out certain conditions that would enable this Rule of Law theory to be effective - namely, that laws cannot be arbitrary and discretionary, and more significantly (and in relevance to this post) - that laws must be certain. In a nutshell, there must be certainty in the law so that one is able to make sense of the laws promulgated in order to grasp what is demanded of him in order to carry out the affairs of his day-to-day life in accordance with said law. If a law is too complex and lacks certainty - this automatically veers into arbitrary territory, and this is where danger sets in and exactly where burdensome legislation and regulations belong.
Regulations, especially in the United States, are often vaguely worded and thousands of pages long. Such burdensome regulatory legislation is also a result of Congress ceding its lawmaking powers to Administrative agencies. The Obama Administration was responsible for producing roughly 20,000 pages of regulations in relation to the Affordable Care Act, otherwise known as 'Obamacare', and this is not even counting the number of supporting "explanatory" notes that come with it. It's a bureaucratic nightmare. It's red tape gone amok. It's scary to think that one wouldn't count on a lawmaker to read Herman Meville's 'Moby Dick' in its entirety, but would trust him to read the entirety of a 20,000 page bill (which eventually became law) that has a direct impact on the lives of real people.
The frustration with the way in which bills pass and become law these days is palpable. In 2012, Illinois lawmakers were given only 20 minutes to vote on a 200-page bill in relation to pension funds. And to add salt to the wound, the bill was revised at the last minute. One lawmaker who made national headlines, Mike Bost, flew into a rage, screaming: "These damn bills that come out of here all the damn time...at the last second and I've got to try figure out how to vote for my people!...[e]nough! I feel like somebody trying to be released from Egypt! Let my people go!" Though somewhat amusing to see Mike Bost lose his temper as he tries to literally punch the paper mid-air in retrospect, it does make one ponder on the process in which all sorts of bills pass through legislatures and become the law of the land today.
The general argument made by proponents of such complicated laws and regulations is that as society becomes increasingly complex through the advancement of technology, it must be addressed in a likewise manner. This is an utterly ridiculous argument - firstly because this shouldn't be done through the enforcement of something as fundamental as law, and just because we live in a more complex world than before doesn't mean lawmakers should be given carte blanche to pass laws that a layman cannot easily understand.
It's also difficult to give credence to such an argument taking into account how Singapore, a booming economy and a highly advanced society in its own right, doesn't fall into the trap of promulgating pages and pages and pages of legalese the same way the United States does (though thankfully the bureaucratic pile of mess left behind by previous administrations seem to be gradually decreasing under the Trump administration)
Lee Kuan Yew, former Prime Minister of Singapore, recognized the dangers of incomprehensible legalese. A lawyer by profession, LKY was known to have been a fan of F.A. Hayek, and while he agreed emphatically with Hayek's arguments against economic central planning, he was also a staunch proponent of "plain english" being used. Since Lee Kuan Yew was reported to have read Hayek's 'Road to Serfdom', he would have definitely been influenced by the bit on Hayek's 'Rule of Law' theory and its insistence on a society's laws being clear and certain. This is reflected in a comment Lee Kuan Yew made in 1979, saying that former Deputy Prime Minister Dr Goh Keng Swee "gives every officer whom he thinks is promising and whose minutes or papers are deficient in clarity, a paper-back edition of Gower's Complete Plain Words". Furthermore, in 2014, the Attorney General's Chambers (AGC) was instrumental in modifying Singapore's statutes to make them more simplified and comprehensible. According to 'The Straits Times', roughly about "6,000 Acts of Parliament and pieces of subsidiary legislation," were made as a result of this.
This is why many Libertarians, Conservatives and heck, even Anarcho-Capitalists (I've met a few), adore Singapore so much. Despite the Singaporean government taking a rather draconian stance towards certain social liberties, Libertarians enjoy the fact that they know what they can do and what they can't do in a delineated manner. They don't have to worry about being slapped with a ticket for an arbitrary violation out of nowhere under Section 2, Subsection 6 (c) of the Fardy Tardy Dardy Act.
Sadly, the United States, supposedly the land of liberties, is the number one exhibit of such kind of burdensome legislation and oft-accompanying regulations. This is in stark contrast to what one of the Founding Fathers of the United States of America, James Madison, stated in the Federalist Essay 62, with regards to laws:
"The internal effects of a mutable policy are still more calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood : if they be repealed or revised before they are promulg[at]ed, or undergo such incessant changes, that no man who knows what the law is to-day, can guess what it will be to-morrow."
And if you think the concerns that I'm talking about are unfounded and merely theoretical and therefore not grounded in practical reality, let's pull up a case study of how an individual's life was almost destroyed through such legislation.
The Sarbanes-Oxley Act of 2002 was passed in the United States in response to a major financial accounting scandal (most notably Enron among others) with the intention of "protecting investors by improving the accuracy and reliability of corporate disclosures." and to essentially "help protect investors from fraudulent financial reporting by corporations". As key to the Act's efficacy is ensuring that financial reporting be as accurate as possible, the Sarbanes-Oxley Act imposes a harsh sentence of 20 years for "any record, document or tangible object” being destroyed with the intent to obstruct an investigation.
Enter fisherman John Yates.
At a stopover check, a Florida officer boarded Mr. Yates' fishing boat and found grouper fish caught by Yates to be in violation of proscribed limits of the law (they were undersized). He instructed Mr. Yates to take the fish to port for them to be seized and issued a citation. However, on the way to the port, Mr. Yates threw the fish overboard and replaced them with fish that were within the legal size limit. A member of Yates' crew confessed to the officials about what Mr. Yates' had done and Yates was subsequently prosecuted under the Sarbanes-Oxley Act of 2002 that was originally passed with the purpose of deterring financial fraud.
Any lay person would recognize the absurdity in this case, but nevertheless such an occurrence was enabled by the statute's broad-sweeping powers and ambiguity - particularly with regard to the meaning of "tangible objects" in the operative clause. Thankfully, common sense prevailed, and John Yates' conviction was overturned by the Supreme Court of the United States. This was a close call, however, and it was not a unanimous decision. One shudders to think the effect this would have in the future with regards to similarly worded laws.
Laws that are voluminous, ambiguous or vaguely worded are malleable. As Lavrentiy Beria, chief of Josef Stalin's secret police once said, "Show me the man and I'll show you the crime." Beria's words live on. This is exactly why we shouldn't trust crooning politicians selling us snake oil - that by voting for them, you'd be voting for laws that would ostensibly empower the disenfranchised and the poor, because while that may be the intended effect (or not) - would we know what such legislation entails in substance? Probably and most likely pages and pages of proverbial playdough - malleable enough to fit different agendas of different people at different points of time, and thus destroying any semblance of certainty in the words that have a direct governing effect on our day to day lives.
