Sunday, December 04, 2011

Let's Have Stupid People Run The Country

I suppose some folks believe that's the case anyway . . .

There are many serious problems we face. A stagnant economy. A paralyzed political system. The opposition in next year's Presidential election is determined to pick a candidate that is almost laughably unqualified for office. We are waging de facto undeclared war against an alleged ally using robot planes and tired excuses. Our southern neighbors are bleeding to death in a civil war waged by mass murdering drug dealers who exist because we Americans love our cocaine and heroin. The list, I know could fill pages.

Which is why writing about this particular subject should probably seem . . . I don't know . . . a bit of a time waster. All the same, it reveals a basic lack of understanding of some realities that, while certainly inconvenient, are still real. From today's Washington Post:
If you want to understand Americans’ frustration with Washington, you might start with the very words the government uses to communicate with them.


[A] small but growing band of civil servants, lawmakers and consultants is leading the charge against bureaucratic legalese. Their mission isn’t just to cut down on government forms in triplicate. They believe that Washington is dysfunctional on a more basic level and that to fix the government, the public needs to understand what the government is telling them.

It’s a movement that’s deeply populist in spirit, with its aim to bring the government closer to the people. And activists across ideological lines have echoed the same cause: The Occupy Wall Street crowd rails against deliberately impenetrable credit-card billing practices; tea partyers find evils lurking behind every run-on sentence in regulatory reform bills.

Ultimately, proponents believe that they’re protecting the sanctity not only of the English language but also of the republic itself. “How can you trust anyone if you don’t understand what they’re saying?” says Annetta Cheek, a 25-year veteran of the federal government who now runs a nonprofit called the Center for Plain Language. “When you’re supposed to be a democracy, and people don’t even understand what government is doing, that’s a problem.”
First of all, we aren't "supposed to be a democracy". We are, in fact, a republic. A republic that is governed, not by human beings, but by laws. It's an imperfect system; in fact, Churchill, misnaming it "democracy" called the rule of law the worst form of government there is, except all the others*.

When the legislature passes a law, or an administrative agency passes a rule; when courts hand down decisions, or state prosecutors file indictments - they are, all of them, dealing with laws. The laws the regulate our society. The laws that determine who is, and is not, a criminal. The laws the limit or expand our freedom of action, limit or expand our access to income, to goods and services, I could go on, but I do hope the main point is clear. Government action isn't just "stuff" people do. It's all about laws.

It would be wonderful if the convoluted language in legislation, regulations, and judicial opinions could be discarded for clarity and simplicity. It would also be wonderful if I found a bag filled with $100 bills lying in the street. Neither will happen. In the latter case, because even if such a thing did happen, and I were unscrupulous enough to hold on to it, the person who left it behind, more than likely, would be a criminal, and possessing such a thing would place my family, no less than myself, in grave danger. In the former case, it isn't going to happen because the legalese, for all its occasional confusion, and the seeming obfuscatory role it plays in communication, is in search of a different kind of clarity than communicating to the general public.

In other words, laws and regulations are written in a way so that if questions arise in courts of law, there is enough specificity in the language to determine if, in fact, any particular section of a law has been violated.

It's that simple.

Imagine a world where laws were simple, clear, direct, and comprehensible to the average citizen. Not just some of the laws. All of them. Imagine, in such a world, a person arrested for a crime - let's say theft, shall we, so no one gets hurt in our imagination - and, under the simple, direct language of the law, "Do Not Steal Or Go To Jail For A While", that person is indicted, tried, convicted, and sentenced to prison. Simple, right? So much better than our current system, one would suppose.

Except, of course, the real world, the one in which we live rather than the one in our imaginations where such things as the above paragraph are impossible, is so much more complicated. Let us take the same example, someone steals something, gets indicted, and goes to court. In a republic, at least those using Anglo-Saxon jurisprudential traditions, the accused has the right not only to confront the accusers, but, with the burden of proof on the accuser, to present a defense against the charges. A lot of people don't like these other features of our legal system, either, but there it is.

Just as in criminal law, so, too, in administrative law cases. An executive agency promulgates a regulation, or a series of them. For the sake not of clarity in a general sense, but rather clarity in a legal sense, the regulation is written in such a way that seems - seems, mind you - to defy understanding. Except, of course, in the case of administrative law - perhaps especially so in these instances - the matter will usually wind up in a court of law somewhere, in which the messiness of reality collides head on with the details of the rule. Part of a court's job is linguistic, determining the meaning of words, the scope of the application of the particular definitions, whether particular acts fall within the definitions in question, etc. Were a law or a regulation, in some noble but misguided attempt at general clarity, eschew specificity for clarity, it would invite a kind of legal orgy, as various groups would pile on seeking to make sure the definitions of the words involved do not apply to any acts they perform, and even better, apply to those of others.

Why this needs to be explained to a population as well-educated as Americans I do not know. I am not exactly a fan of the pages of legalese, usually printed so small I have to rent a microscope to read, in everything from credit card statements to phone bills to loan applications. All the same, I know why it exists, and it seems to make perfect sense to me that it exists in the way it does.

Maybe I'm just weird.

*Churchill, perhaps, can be forgiven for using the word "democracy" as he was a citizen and leader of a Constitutional monarchy. For all its failings and medieval political institutions, Britain's parliamentary system, combined with its Whiggish Constitutional history and the over-300-year old legacy from the Glorious Revolution, is a marvelous model of the Rule of Law.

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