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Wednesday, July 20, 2005

The future of the law?

My bloging is intermittent because I am constantly prepping out lectures during summer school. However, something has been eating at me for a while and since I am not going to be able to write a paper on the issue any time soon, I will throw it out here.

Here in the Dallas area we have a local late-night radio talk show host who posits that the evolution of the law is such that eventually "that which is not forbidden will be mandatory." He usually uses this statement as an intro to some crazy law that has been proposed in East BFE or elsewhere. The statement is probably not unique to him, but it has me thinking if it isn't more accurate than cynical.

Consider that in Broward county (Florida) public school playgrounds it is now against the rules to run!! It is against the rules to "use the equipment without adult supervision." Broward county and other localities are removing slides, merry-go-rounds, swing sets, and sandboxes because they all prove to be too much liability - literally and figuratively - to the local school district or local government. The ability and desire to sue when Johnny scrapes a knee forces the rules to change, I get it. Yet, what fun is a playground when there is no risk involved, for either the kids or the authorities?

Evidently, it doesn't matter. Playgrounds are dangerous for kids and the kids must be protected, at least according the folks at the National Program for Playground Safety.

Broward County has forbidden running in the playground. Does this fit the "what is not forbidden is thus mandatory?" We aren't there yet, after all it doesn't require kids to be bi-pedal to move about the playground, arguably kids could walk on their hands, skateboard, or otherwise move from station A to station B.

However, what if the statement is turned around to "That which is not mandatory will be forbidden."? Does this statement jive with a proposed Pennsylvania law that dogs have to wear seatbelts when riding in a car. I understand the benefits of strapping the dog in, but a law is necessary?

How about the general list of stupid laws (more here) that are passed (or left on the books) on an annual basis throughout the country?

It has been about ten years since I have read "The Law" by Frederic Bastiat, so it is probably time for me to reread it. I always had the impression the philosophical basis of our (read U.S.) law was "that which is not illegal is optional." Therefore, it is illegal to not pay your taxes, and hence it is probably not optional. However, it is not illegal to drive a blue car, and therefore it is my option to do so (which I have exercised).

Are we evolving to a society where either "that which is optional is illegal" or "that which is not mandatory is forbidden" or "that which is not forbidden is mandatory."

This is a bit of rambling, but now that we are beyond the big issues, such as murder, theft, and such, many laws seem passed for one or more of three basic reasons: safety, avoiding litigation, or for the children. Are these consistent with the historical lineage of U.S. law? I am not a law-n-econ guy, but it is an interesting problem.

Is there an algorithm that could be devised (or already exists) with laws that either forbid or mandate (i.e., mutually exclusive zeroes and ones) which over time "fill in the box" until there could be no more laws passed. At some point to mandate would contradict a forbidden action, and to forbid would contradict a mandated action. Thus, the end of passing laws but not in the libertarian spirit.

I can visualize the approach, but perhaps the problem is really not tractable. Mandating/forbidding is dependent upon the space of human action, whcih seems to be expandingly infinite. Maybe I just answered my question - things are fine as long as my "space of human action" isn't full of zeroes and ones, even if someone else's "space" is - say drug use, prostitution, playground equipment, etc.

I'll throw the comments open for a while to see if I am punch-drunk from teaching too late, completely off my rocker, and need my degree rescinded.

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