Legal Research

Complexity and the Rule of Law

By Simon Fodden

In this post, which is more of a polemic, perhaps, I want to bring together two seemingly disparate references from the web, one dealing with the mundane and the other with high politics, if there can be such a thing. I think that in its own way each illustrates the same problem, that of complexity and its unfortunate impact on what we like to think of as the rule of law.

Alan Siegel, U.S. business communication and branding expert, has devoted a fair bit of his time to trying to simplify legal documents. In this six-minute TED video he illustrates the sort of jargon he wants to get rid of and showcases a couple of his successes in this respect, notably an IRS form (available in PDF). Commendable as his efforts are — and they are — in my view they more closely resemble King Canute’s demonstration that even he could not control the waves than they do the van of a sea change in law making.

If we were truly concerned to make laws and other legal documents understandable by those whose conduct they purport to govern, we would long ago have required simplicity in these things. My own current favourite illustration of our lack of caring is the EULA, or end-user licensing agreement, the shrink-wrap or click-wrap licence that millions flick past on their way to the product. The sellers don’t care to be understood; and the buyers don’t care to try, as who would, in the face of a document such as this, which is one of the better ones as to choice of language and even so weighs in at a shade over 5,000 words?

EULAs and other contracts of adhesion introduce the problem of control. Sophisticated contexts and products require sophisticated and detailed language to control the main foreseeable outcomes. Complexity in life begets complexity in law (a version, perhaps, of Ashby’s Law of requisite variety), it would seem. (As an aside, I might mention that I’m not persuaded that “life” or “society” can be more or less complex; it has to do with our perceptions and other psychological coping mechanisms. But that’s for another day.) There rapidly comes a point, however, a point long ago reached some would argue, when the complexity in law renders it no longer worthy of the name “law” — if we care at all about the genuine advice and consent of the governed. It becomes, instead, bureaucratic exudate.

As with many things, the situation in the United States brings this home to us most forcefully. In Siegel’s very first PowerPoint slide, we learn that the Senate health care bill then mooted was 2,074 pages long, contained some 400,000 words, and might spawn as many as 40,000 regulations. Since then we’ve learned that the Wall Street regulation bill recently passed by their Congress is 2,300 pages long. The representatives voting on these monstrosities didn’t understand them fully — hadn’t even read them in some cases. No amount of plain language drafting could tame these behemoths.

If it seems silly or naive of me to fret at complexity this way, let me invite you to look at a series of three articles in the Washington Post, the last of which was published today. The result of two years of research, they deal extensively with the ultra-secret world constructed by the U.S. government in response to the attack on September 11. In traditional newspaper style, the lead sentence in the first article glosses it well:

The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.

Point by point these articles by Dana Priest and William Arkin reveal what is to me a sad tale of madness, of a nation suffering from the political equivalent of some auto-immune disease where the response to invasion is unregulated growth and self destruction. I won’t attempt to go through what is in these articles: they deal with much more than the sort of thing I’m raising in this post. But here is complexity in full flower, complexity so tangled that it has taken leave of whatever connection it might once have had to laws, laws that in theory authorized the various steps along the way, laws that fund the sprawl, and laws that, again in theory, regulate what this mass may do the the masses and the individual citizens that constitute them. In the words of a General Vines, who tried to track aspects of the thing:

I’m not aware of any agency with the authority, responsibility or a process in place to coordinate all these interagency and commercial activities. . . . The complexity of this system defies description.

Where do we go with this? Nowhere good, perhaps. It’s hard to simplify, once things have become . . . elaborate. Climbing down the ladder of hypercomplexity is difficult, perhaps impossible; and the temptation is always to kick the the thing down. Glenn Greenwald, commenting in Salon on the first of the Washington Post pieces, sees little prospect for the dismantling of the secret control systems short of what he carefully labels “severe citizen unrest,” something he ultimately deems unlikely to occur.

On our smaller canvas, I see no sign that in Canada we’re reducing the number of our statutes and regulations or the length of these; indeed, I suspect the there’s been pretty steady growth, which is likely to continue. Much as we know but ignore the fact that there is a limit to our use of natural resources, so we should acknowledge, but do not, that there will come a time when everyone will have to agree that, even if we can shelter from the worst of the security winds blowing from the south, because of their sheer complexity laws and the law-making process stopped being fair, useful, or just some time back.

Now whenever I start to channel Cassandra at Troy, as I seem to be doing here, I check myself by thinking of the extreme commencement address attributed to that professional melancholic, Kurt Vonnegut Jr., in which he said, simply, “Things are getting worse and worse and worse and will never get better again.” I’m not in that place yet, even when it comes to law. I have hope, if not optimism.

UPDATE: Thanks to an alert reader I’ve corrected the count of the words in the EULA. I carelessly mistook the number of characters for the number of words.

Full post as published by Slaw.ca on July 22, 2010 (boomark / email).