As a child, I was taught that "ignorance of the law is no excuse" for breaking it. It seemed to me (perhaps naively) that most of the children and adults around me accepted this idea, and tended to consider it carefully as a guide to how they lived their lives. Over the years, this attitude has seemed to become rarer among people I know. A few days ago, I ran into two items in the mainstream media that led me to meditate on the problems raised by the current efforts of our legislators.
The first item is a note on MSNBC that announces that some 40,000 new laws took effect on January 1, 2012. The second item is from the Los Angeles Times; it points out that "[o]f 760 bills signed by California Gov. Jerry Brown in 2011, most take effect Jan. 1." That article goes on to identify 49 laws that may be especially relevant to some citizens. The sheer bulk of all this material made me wonder how anybody could be expected to know whether in the course of his or her business one of these laws would affect their actions. This problem is compounded by the possibility of inconsistency within and between all of these 40,000 items and the great mass of law to which they have been added.
This problem is compounded when a law is extraordinarily bulky. In a great excess of zeal, the Congress is churning out some important laws that fill thousands of pages with language that attempts to specify in excruciating detail exactly what those the law affects can and can't do when confronted with a multitude of circumstances they may find themselves in. It appears that there is no practical way to be anything but ignorant of the law when it is so massive, and its effects are so ramified.
One way to ameliorate this situation would be to refrain from passing so may laws, and to make each law much less complex. The problem with this is illustrated by an extraordinarily laconic part of the California Civil Code, section 1366.1 (applicable to the management of homeowners' associations), which says in its entirety:
An association shall not impose or collect an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied.
This law seems on its surface to have the laudable intent to prevent associations from overcharging members for the products and services that they receive. Unfortunately, compliance with this simple language in the specific cases that arise in association management implies the existence of fiscal machinery whose complexity and sophistication would be adequate to support a major international corporation. I have spent quite a bit of time at meetings of my homeowners' association's board while the applicability of this law to various matters was debated vigorously. I have considered the opinions of the association's legal counsel. I am still unclear about the operational meaning of this law. If ignorance of a law is no excuse for breaking it, I and many of my neighbors have no excuse for any of the actions that we have taken collectively to manage our association that might be construed as falling within the purview of California Civil Code section 1366.1.
One way to address this problem is to write laws in enough detail that every reasonable circumstance of their application is covered. If every detail is considered and clear directions are provided for every possible application of the law then it is at least logically possible to demand informed compliance by the citizenry. This could be termed the "computer software" approach to lawmaking. It reminds me of an obscure experiment tried within IBM in the 1960s during the PL/I project. Some people were given the task of writing a subroutine that would reverse a string of characters. They were unable to produce a satisfactory program in three attempts. There was always some vulnerability to peculiarity of the input for which the result was nonsensical. Perhaps this is why we have 2,000-page laws (Obamacare?) that nobody understands in full, including most of the people who voted for and against them.
Actually, this may be a good staring point for a strategy that would result in workable, and at least partially understandable, laws. Microsoft has been building computer programs for a number of years that involve millions of lines of code. These programs (a long sequence of versions of MS-DOS and Windows) are used by a large number of people, most of whom are largely ignorant of the laws by which they are bound as program users. The history of these programs might be considered as adaptive evolution of programs and users, where each generation of the program adds some features that observation of users indicates are important and fixes some of the problems in its structure and while each generation of users finds some way through the maze to get his or her work done.
Now if only we could apply Microsoft's approach to developing Windows to writing and enforcing our laws we might avoid the problems with which our legislatures beset us! Oh, but wait—that is what we are observing with our 40,000 new laws this year!