The Grand Illusion
More than a few people have asked the question “Why can’t Congress simplify the laws, rather than making them more complex?” Similar questions are asked about federal regulations all the time as well.
They’re good questions, but they unfortunately also have fairly simple answers. The first is that, in a political system that allows “popular” input, laws can be changed, or tweaked, to benefit those with enough political or financial power to influence the lawmakers. Such tweaks add complexity.
The second reason is that the United States is overflowing with attorneys, and almost every law ever passed is challenged in some way or fashion, either to get benefits under it, to avoid being covered by it, or to widen the coverage. While not all those challenges require changes in the laws, a great number do. In turn, those changes spark additional legal challenges, which in turn often spawn more legislation…and more litigation… and possibly more legislation…
The quick answer to this is to keep the laws “simple.” And, it’s true, “simple” laws don’t offer as much opportunity for legal challenges. But, unhappily, if laws are too “simple,” they can also turn out to be horribly unfair in many cases. So, politicians, never wanting to seem unfair, try to craft laws that are more “fair.” More fair is also more complex, and often the provisions that are meant to make things fair are then challenged by one group or another claiming that the law should or should not apply to them, whichever is to their advantage, and sometimes on the grounds that the application of the law is inequitable.
And when you have a large and complex economy, based on complex technology, with global implications, the legal structure becomes equally complex, and more often than not, the idea of fairness becomes twisted into something that is anything but fair.
One factor I noticed, particularly when practicing criminal law, is the politician’s need to be seen to be “doing something” for their constituents. Namely, their LOUDEST constituents. This adds many many many unnecessary laws to the books. And, not incidentally, also creates a lot of redundant prosecutions for a single act. For example, a state representative lobbied by shop owners suffering losses from shop-lifting proposes a new “retail theft” law. It passes. Now the shopkeepers are happy, because that will stop people from shoplifting, right? (Actually no, fear of punishment has very little detterent effect, but, whatever, it sounds good, right?) The rep is happy because he looks to have done something for his constituents and can brag about “being tough on crime”. But, on the prosecution side there are now two offenses for the same act. It’s great for plea bargaining, but, for overall interests of “fairness” it’s total crap. (Here I definitely side with the “simplest is best” idea and say we should get rid of the redundant laws… But no one ever got re-elected based on how many laws they repealed.)
Alongside this, there is the proliferation of different levels of laws at different levels of sovereignty (federal, state, local, etc.) You have multiple different laws that all cover the same act.
And, finally, regulations make things even more complicated, BUT, a lot of laws, as written are pretty much “vision statements” without any real set-up for practical application. Regulations can take the lofty aspirations of the written law and make it work. (I constantly ran afoul of this in another job in state government. I administered a state law with no ability to develop regulations and it made implementing the law very difficult, at best.) But it adds another level of complexity as well.
The problem is that as complexity grows, compliance or even knowing what to comply with becomes more difficult, and comprehensive enforcement becomes impossible. That leads to too much prosecutorial discretion, not just the legitimate discretion over sufficient probable cause, but between lesser and greater offenders, or even between politically connected offenders and those that aren’t. Vague laws lead to too much executive discretion in the implementing regulations. And uncertainty of consequences encourages scofflaws.
Congress is supposed to be the most powerful branch in matters not requiring immediate response (as well as in declaring war), since they’re supposedly most representative. But they fail in the corresponding responsibility when they treat their constituents as only consisting of their backers, rather than of everyone eligible to vote for them.
As with anything, simplification of laws could be carried to the point of absurdity or egregious unfairness. But I suspect there remain very few instances of that, compared to the accumulation of inefficient, expensive, and freedom-robbing complexity. Technology can only serve so far as an argument for increased legal complexity; crimes such as theft and fraud are concepts that could be applied very similarly whether in person, by mail, or in “cyberspace”.
It’s of course far easier to say than to do. Improvements in genuine transparency would help. Real civics education, how and why to be aware of bills and voting records and donations, would help; it ultimately requires a large enough minority of involved voters to control the politicians.
If there are too many laws, people can’t know them and can’t obey them. Laws then become a lever for some to have power over others.
Even if I bought your argument that more laws are created to make things fairer, the result would still be unfair. However, I don’t: many laws are simply profit centers for the wealthy to entrap others.
At this point, most people ignore the law and hope not to be caught, like schools of fish surrounded by sharks. Then, if someone is caught, we maintain the fiction that it was their fault, so that we can ignore the sharks still circling us.
One of the purposes if not the only purpose of courts is as a way to resolve disputes without escalation to violence.
Someone murders one of my family members and instead of my family going and killing them or one of their family we take the matter to court to be arbitrated by a third party.
The problem is that if the judges/arbitrators make it up as they go along the losing parties in court cases would feel aggrieved and lose trust in the court process. Especially if they can point to instances where similar cases have delivered different judgments.
Therefore the judges/arbitrators need rules to guide their decision making processes that they can point to in order to explain/justify their decisions.
Most of the time it may be unneccessary for people to know most of the laws that exist since the laws only come into play if there is a dispute that goes to court. If laws are well thought out even if there are too many to know most of the time a person can get by on common sense and good judgment, abiding by the laws without actually knowing what they are.
Simply put it should be obvious that murder is wrong but if it is legislated that it is wrong then it makes it much harder for the culprit to gainsay a guilty verdict than if there was no pre-existing law.