Wednesday, January 31, 2018
After spending a little time with the new tax bill, I couldn't help but think, "there must be a better way." That reminded me of an article from a little while back in the West Virginia Law Review, titled, Legislation's Culture, by Richard K. Neumann, of Hofstra University - School of Law (PDF). Here’s the abstract:
American statutes can seem like labyrinthine mazes when compared to some countries’ legislation. French codes are admired for their intellectual elegance and clarity. Novelists and poets (Stendhal, Valéry) have considered the Code civil to be literature. Swedish legislation might be based on empirical research into problems the legislation is intended to remedy, and the drafting style, though modern today, is descended from an oral tradition of poetic narrative.
Comparing these legislative cultures with our own reveals that the main problem with American legislation is not too many words. It is too many ideas — a high ratio of concepts per legislative goal. When American, French, and Swedish legislatures address similar problems, the French and Swedes draft using far fewer concepts than Americans do. In both countries, simple solutions are preferred over convoluted ones. The drafters of the Code civil thought the highest intellectual and legislative accomplishment to be simplicity. The Swedes got to approximately the same place through a cultural value that law be understandable to the public. Where the American legislative process can seem chaotic, there has been some respect for Cartesian rationality in France and for empirical evidence in Sweden.
Even if American statutes were to be translated into ordinary English, they would still be labyrinths because our legislatures insist on addressing every conceivable detail that legislators can imagine. The result is excessively conceptualized legislation, imposing large numbers of duties. Statutory concepts cost money. They create issues, which must be decided by publicly funded courts and agencies with additional costs to the parties involved. Every unnecessary statutory concept wastes social and economic resources. And to the extent law seems incomprehensible to the public, it loses moral authority.
Having studied law in Louisiana, I admit to a certain soft spot for the civil code, even if my fondness is rooted firmly in this country. (In fact, about one year ago, we lost a giant in the civil law, Athanassios Nicholas "Thanassi" Yiannopoulos. See, for example, his work, A.N. Yiannopoulos, Requiem for a Civil Code: A Commemorative Essay, 78 TUL. L. REV. 379 (2003), available via Hein Online here.)
I digress. Back to my point, I think this statement from Neumman is spot on: "[T]o the extent law seems incomprehensible to the public, it loses moral authority." Absolute truth. And the same applies to regulations.