Malthus, Parkinson and the Ministry of Repeal

Why are there so many laws, and what can be done about it?

Posted Jan 16, 2017

All "organic beings," to use Darwin’s phrase, reproduce. Without checks, natural or artificial, they reproduce geometrically. A pair of pigeons lays, let us say, six eggs a year of which four survive. The next generation, now four rather than two, repeat the process to yield a further 16 pigeons. And so it goes until the whole world is filled with pigeons.  

English cleric Thomas Malthus (1766-1836) noticed this inexorable tendency of life to expand beyond all limits. He applied the principle to human populations. He made his argument as a set of logical propositions:

That the increase of population is necessarily limited by the means of subsistence,
That population does invariably increase when the means of subsistence increase, and,
That the superior power of population is repressed by moral restraint, vice and misery

Malthus’ argument is basically correct. Human ingenuity may temporarily compensate for population growth, but it can never do so indefinitely. Many resources, like land and food, are intrinsically limited–and medicine simply exacerbates the problem by mitigating the checks of disease and disability.  Ultimately, Malthus argued, the process of population growth will be halted if not by “moral restraint” by “vice and misery:" war, disease and starvation, which are in fact the checks on animal populations: starvation, disease, and war in the form of predation. Otherwise, the world would indeed be full of pigeons–and every other form of life.

Competition, in the form either of predators or other species using the same resources, is the main way that indefinite growth is limited in the natural world.

 Animal populations are not the only things that tend to grow without limit. Along with growth in human populations and advances in technology goes growth in various forms of pollution, atmospheric, environmental, contagious. As these dangers have expanded, human civilization has become more aware of them. Agencies like the US Environmental Protection Agency have been formed as a human-created and one hopes humane check, on them. In effect, the EPA competes with polluters, with the aim of reducing and restraining environmental degradation. 

Population and pollution are not the only things that grow indefinitely unless checked. C. Northcote Parkinson (1909-1993) was a British naval historian who made his name by writing satirical pieces for The Economist magazine on matters of organization. Parkinson’s "laws" are witty but also true, as facts prove. His most famous contribution is Parkinson’s Law, which has several forms.  Most important for my argument is his law on the growth of bureaucracies. 

Source: JS pic

Here are Parkinson’s data on ships vs. administrators in the British navy in the early twentieth century. The important column is the last, which shows Admiralty officials increasing by 78 percent over 14 years, while the things they supervise, capital ships in commission, decrease by 33 percent over the same period. Parkinson commented: “Can this rise in the total number of civil servants be accounted for except on the assumption that such a total must always arise by a law governing its growth?...We might not wonder to see more draughtsmen on the payroll, more designers, more technicians and scientists. But these, the dockyard officials, increased by only 40 percent in number when the men of Whitehall increased their total by nearly 80 percent."  Bureaucracies, like pigeons, have a natural “law of growth." Their growth is limited only by the resources available. 

As bureaucracies grow, so also do their products: laws and regulations. But in this case the problem is worse, because there is no limitation of resources.  A law once passed requires little further maintenance. It may require enforcement but, enforced or not, it remains on the books.

“The Federal Register is the daily depository of all proposed and final federal rules and regulations” a recent article from the Competitive Enterprise Institute reminds us.  The article goes on to show the prodigious growth in regulations in recent decades–at least as indicated by the page count. The picture shows just how prodigious this growth has been: from 112,000 pages per decade in the 1940s to almost 800,000 pages in the 2010s, even before the decade is out. 

Why this amazing growth? Has society really grown more complex–other than the complexity provided by the regulations themselves? Are we less law-abiding, more contentious, or more stupid than in earlier years so more controls are necessary?  Probably not. Probably the administrative state follows Parkinson’s “natural law of growth” which, in this case is almost unchecked because laws and regulations are repealed only if they seriously injure or impede some influential group. Investment bankers engineered the repeal of Glass-Steagall in 1999 (thus contributing, many have claimed, to the 2008 financial crisis). Middle America voted overwhelmingly for Republicans who now promise to repeal the Affordable Care Act (aka Obamacare).  But these repeals are the rare exceptions that prove the rule. Law-making acts like a ratchet. It may advance quickly or slowly, but it never goes backwards.  

A recent book–“Three felonies a day”–by a respected legal scholar points out that laws have proliferated to the point that many professionals are inadvertently committing crimes because of “the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague.”  There are too many laws. The US is rapidly approaching the condition of the old Soviet Union where everything that was not required was forbidden.  

The reason for this deplorable situation is that governments have an active machinery for passing laws and regulations but no similar mechanism for repealing them. When government is divided, few laws may be passed, but the regulatory process continues unabated. The rate of repeal is always low, no matter what. It seems to be much easier to impose a rule or set up a government department than eliminate one that has outlived its usefulness. There is no competition, no ongoing repeal process to balance the making of laws and regulations.

There is a solution that doesn’t seem to have been proposed before: Why not set up a Department of Repeal (DoR), whose mandate is rather like that of the EPA—to clean up not the physical environment but the legislative landscape. The DoR should identify laws, rules and regulations that it believes are candidates for repeal or serious modification. It will be up to congress to act or not. But DoR can provide the data—what is wrong with the rule, the reasons it is no longer fit for purpose and so on—which can inform Congress and perhaps get it to act.

We have a legislative system that has a built-in unbalance, a bias in favor of adding laws and regulations as opposed to eliminating them. On the principle of “set a thief to catch a thief,” a Department of Repeal is a way to use the self-interest of one bureaucracy to counteract the expansionist proclivities of government bureaucracy in general. Just as the fox and the harrier moderate the otherwise explosive growth in the pigeon population, and as the EPA exists to combat sources of pollution which, if left unchecked, could increase without limit, so a Department of Repeal may check the relentless growth of an unrestrained administrative state. 

We are a nation of hoarders, not just of things but of laws and regulations.  We need a cleanup service.