Sunday, July 8, 2012

The Tyrrany of Affirmative Duty

Here's a bit of a bleg:  Does anybody have any data on the ratio of laws and regulations that prohibit a particular activity vs. those that require some sort of affirmative duty?

Let's start small.  How 'bout the Ten Commandments:  By my count, there are 8 things that you're not allowed to do (no other gods allowed, no taking the Lord's name in vain, no killing, adultery, or stealing, no bearing false witness, and no coveting, wifely or otherwise) , and 2 that you're required to do (keep the sabbath and honor your parents).  80% prohibition, 20% affirmative duty.

I like laws that tell me what I can't do.  If I have an idea, I can rapidly scan against all the things that I'm not allowed to do and decide whether or not to act on the idea.  But affirmative laws are much harder to deal with.  Now I have to ask myself, if I act on my idea, does it require me to do something that I haven't thought of?  Will I wind up taking on too much work just because I wanted to do this one simple thing?  This is a much harder search question, because it potentially requires me to generate all of the consequences of my idea and search each one for follow-on duties that I have to perform, before I can even think about doing that thing that I wanted to do.

You can argue that that's a good thing, because it prevents me from doing something that might ultimately be stupid.  But it's also a huge drag on my ability to try stuff out and learn from my mistakes.  If the motto for a vibrant society is "try small, fail small, win big," then affirmative duties aren't so good;  they force you to "try bigger", because trying small stuff requires so much investment in figuring out all the things that you need to do before you can actually try out the idea.

My impression is that the number of affirmative duties in our society is skyrocketing.  To hire somebody, you have to register all of his info for withholding, FICA, medicare, disability, unemployment insurance.  You have to verify that he's not illegal.  You have to look at your workforce to ensure that hiring is fairly apportioned among the various groups that we feel guilty about.

If want to build or manufacture something, it's not adequate that I not pollute; I need to file environmental impact statements and a whole bunch of paperwork that shows that I'm not only not polluting, but that I'm measuring that I'm not polluting, so I can do the enforcement official's job for him and he can supervise more firms at the same time.

But the worst thing about affirmative duty is the implicit message from the State.  "We can make you do what we want."  That's a much different message than, "You're not allowed to do that," which, while sometimes annoying, is mostly accepted because the thing you're not allowed to do will likely hurt somebody else.  Affirmative duty is how the State reminds you that you're its creature.

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