Saturday, 29 December 2012

Dogs on the beach and the vexing question of rules


I began this blog a little more than a year ago with a photograph I had taken of a sign warning visitors not to get too close to the cliffs of Moher on the west coast of Ireland. 

I then asked some questions about rules and authority.  I said:  

Does the fact that so many folks are blithely disobeying the sign say something about our general attitude towards rules and authority?  We are so surrounded by commands and dictates and warnings and advice and cautionary words.  Coffee cups tell us the startling news that the beverage we are about to enjoy may actually be hot.  If you look at the signs in some of the city parks in Vancouver the list of prohibitions is so long that you sometimes wonder whether there is really anything permitted at all?  And so are we just tuning it all out?  ...

A year later, I thought it would be fun to post a photograph of another sign.  This picture was taken in at a city park in Sydney, Australia in late November.



Unlike the sign at the cliffs of Moher, this sign has not been defaced.  I am not going to suggest that this bespeaks some profound difference between the Irish and Australians.  After all, many Australians are descended from Irish immigrants.  Some of whom were sent to Australia, well, involuntarily!  And having spent three weeks there I can tell you that Australia is a country that loves to warn people about all of its many dangers.  No, I just like the fact that this sign actually welcomes people to the Sydney Botanical Garden and encourages people to do the things they typically want to do in a park: walk on the grass, smell the roses, eat picnics, and relax.  There are prohibitions, of course, but they are placed at the bottom of the sign, where they belong.

That’s where I think most rules belong.  At the end of our consideration of rights and responsibilities, a sort of last resort, if you will, rather than a first recourse.

I suppose this attitude makes me something of a libertarian.  But not so much because of my belief in our freedom, as because of my view about the importance of our responsibilities.  Because I think that when we choose to regulate something by a rule, we change the way we look at it.  Instead of responding primarily to the issue that caused us to think about making a rule, we think instead about the rule itself. 

To take the best example (and I know I have said this before, but it bears repeating), the question we usually ask ourselves when driving is not whether we are driving safely, but whether we are driving at or under the speed limit.  Our primary consideration is the rule, not safety.  We have in a very real, deliberate, but largely unconscious way, delegated that question of safety to someone else - the person who set the speed limit.  And in fact, for most drivers, the issue is really what speed we can get away with driving without getting a ticket.  So it’s not about safety at all, it’s just about getting caught breaking a rule. 

The whole reason for speed limits, of course, is safety.  But to a considerable extent the effect of legislating speed limits is to replace our moral responsibility to drive in a manner that does not create an unacceptable risk of harm to others with a quite different concern about rule compliance.

That’s what rules do.

On the island where my family has had a summer cottage for over half a century, we are part of a community of families that shares the use of a small beach.  The beach is so small that on summer afternoons, especially if the tide is coming in, there is not enough room for everyone.  In particular, there is not enough room for large dogs and small children at the same time.

Everyone in our little community agrees.  Most everyone also agrees that the best way to keep the beach safe for little kids is for the dogs to stay home.  There are lots of hours in the day - early in the morning, or late in the evening - when the beach is not busy, and dogs are welcome.  But just for a few hours in the middle of the afternoon, it’s safer if the dogs are kept away.

Even though everyone agrees with all of this, sometimes dogs are brought to the beach on weekend afternoons.

So the question is: what should we do about this?

There’s a pretty good chance that your answer to this question is: make a rule prohibiting dogs on the beach on weekend afternoons.

We haven’t done this yet.  In fact our little community has very few rules.  We have guidelines and expectations, but not that many actual rules.  We know that once we start making rules to regulate our behaviour, people will start disagreeing with each about what the rule says and how it ought to be applied.  And we will need to create sanctions and penalties and a process for enforcement, and a rule enforcement committee, and then we will have to decide how to choose the members of the rule enforcement committee.  And so on.  When what we really want is to keep our beach safe for little children.  And all we really need is the fortitude and the diligence to remind the person who has brought his dog to the beach that we all agreed it was not safe for dogs to come to the beach on busy afternoons.

Clearly what works for a small community where everyone knows each other doesn’t necessarily work in a large city where we are mostly strangers to each other.  I’m not for a moment saying we don’t need rules.  But sometimes I think we need to remind ourselves that law-making is not a panacea, and often is a poor, second-order substitute for individual or collective moral responsibility.  We could do worse than to spend less time making and enforcing rules, and more time just working out how actually to get along with each other.  Rules if necessary, yes, but not necessarily rules.

Saturday, 22 December 2012

One more reason why legislatures should sit more than once a year


Every day I am reminded of the pace of change.  Nothing is more trite to say, but it’s still true: change is pervasive and relentless and unavoidable.  To take just one example, hardly a day goes by that I am not asked to update one of my small handful of smartphone apps.  Either the programmer made an error that has only now been discovered (a fortnight after he discovered the last mistake), or the designer has thought of some way she could improve it.  Every machine and tool and device I can think of is constantly being updated - just think of how often someone re-invents the screwdriver (and advertises the revolutionary and transformational and convenient completely new version of a screwdriver on late night shopping channels) and you’ll know what I mean.

So would you permit me a leap from this utterly banal observation to a comment about law-making and legislatures?

Our provincial legislature did not sit this fall, and more often than not over the past several years has been sitting only once a year, usually for a spring session that begins in February and ends in about May.  People ask me why, and if I feel like avoiding the question I usually offer a smart-alec answer like, “Hey, the two main purposes of the legislature are to pass bills and give government permission to spend money.  Do you want more laws and more government spending?”

But a legislature does not just make new laws, it updates old ones.  Corrects errors that may not become apparent until the new law was implemented.  And refines, expands, adjusts the law to changing circumstances.  Sometimes courts interpret legislature-made law in a way that defeats the policy intentions of the government that enacted it; often the only way to restore the policy intention is by revising the legislation.

None of this work can be done unless the legislature is in session.

The question of how often a legislature should sit is usually discussed as an issue of democratic principle.  One way of expressing that principle is to say that the legislature is the only place where government can formally be held accountable for its decisions; it is the people’s chamber and needs to sit to do the people’s business.  A government which infrequently convenes the legislature is, the argument goes, avoiding accountability.

But in a rapidly-changing world, perhaps there is another reason why government should call the legislature into session on a regular basis, and that is simply for quality control purposes, to ensure that there is an opportunity to improve and correct legislation.  We need to update our laws just like we need to update our smartphone apps.  Maybe not every couple of weeks, but surely more often than once a year. 

When outdated or badly designed laws are allowed to hang around the statute books, or when law is not kept up-to-date, there are lots of real world impacts: tax calculations, the rules for running a strata council, residential tenancy dispute resolution, the enforceability of contracts made on the Internet, legislation that governs almost every not-for-profit association in the province - all these areas of life are governed by complex legislation that often needs to be revised and updated.  If the needed changes aren’t made, the result is uncertainty and unfairness. 

Asking legislatures to sit more often is not therefore just about democracy, it’s also about making the business of government more business-like, responsive to the practical and sometimes urgent needs of citizens, as able to implement and respond to change just as often as we are all required to do in the rest of our lives.   

And if you will permit me one more leap, these sorts of considerations also help explain why the federal Conservative party’s current fixation on massive omnibus bills is not just un-democratic, it’s also a high-risk way to making law that significantly increases the likelihood that errors will be made.  When government tables a bill that is hundreds of pages long, covers a diverse range of entirely unrelated subjects, and then truncates debate, it denies members of parliament the opportunity to do one of their most important tasks: to scrutinize legislation; to examine and test both its principles and its details; to fix errors; and to fine tune that which needs adjustment.  Competent as they are, legislative drafters do not always get it right.  Cabinet ministers are often required to amend their own bills while they are being passed because some sharp eye found a mistake after the bill was tabled.  The proposition that nothing anyone in parliament says could possibly improve their legislation is a special form of arrogance on the part of the federal Conservatives.  But it’s not just undemocratic.  It’s also, put simply, not very businesslike.

Wednesday, 12 December 2012

Sydney's amazing opera house


Just when I thought I had Australia all figured out, we took a tour of the Sydney Opera House and saw this.

It may be the only place in the whole country where men are actually directed away from the bar.

But then, perhaps that's what happens when Australian men attend the opera?

Seriously, I love the Sydney Opera House.  When construction started, the engineers had not actually figured out whether the building could be built as designed.

And when finally completed, the price was 1400 per cent of budget.  That's right.  It wasn't just twenty or thirty per cent over budget.  It cost 14 times more to build it than was originally estimated.

And yet it is one of the world's few truly iconic buildings.  Up close, it is simply breathtaking.  Audacious and yet utterly graceful.  As startlingly modern today as it was when construction finished almost forty years ago.  When its soaring, ambitious, and yet completely simple lines literally reshaped  our conception of an entire country.  And its price is just a footnote.

Sometimes boldness wins.