Legislative Sclerosis and Subordinate Legal Systems

At the beginning of my first year of medical school the administration told us we could write our own honor code. Because during my undergrad years I had a bad habit of over-committing my time to non-career-supporting activities, I banished all thought of participating. But then a few days later when the writers were in front of us presenting the honor code they'd written, it occurred to me: I go on and on here on this blog about various social theories including social contracts, gaming the system by over-specializing legal language, and compiling constitutions in a legal program language. Yet here was the opportunity to draft a new social contract, and I'd rejected it! Then again, so for that matter did most of the class. (Interestingly, the students who did choose to participate were demographically non-representative of the student body as a whole but I won't say exactly in what way because it would change the focus of the post to something controversial.)

Even when it was presented, people didn't seem to care, and I was one of the non-carers. Why? There was no revolution going on. We weren't Jefferson or Lenin drawing up the new law of the land; maybe if we'd been on a desert island a la Lord of the Flies the code would have some meaning, but as it was, such a code has the backing of a sovereign organization only insofar as it conforms to the sovereign organization's aims. The student body's regulations are essentially those of a reservation within the medical school as a whole. This is not a complaint about my own institution; I can't imagine how it could be different anywhere else, or why schools would want it to be. For example, if we'd drawn up the following:

1) We don't have to take the exams or show up for labs but we still pass.
2) If we do take the exams, we can look at other people's tests.
3) We can perform whatever criminal activities we want while we're in school and there will be no repercussions for us.
4) A beer fountain on the quad every Tuesday. (Why wait for a beer volcano in heaven?)

But I'm guessing that wouldn't have flown, because it wouldn't accord with the sovereign's pre-existing rules.

I'm sure you're not surprised by the lack of civic enthusiasm for student government legislation, which at any rate seems universal. But there are two interesting observations here. First, the reason no one cares about student government laws is that they know if there's ever real trouble, it's the sovereign organization that has the real power. Yet in the U.S., people respect state and city governments even though they're ultimately beholden to the Federal government. What's the difference? I suspect there are three factors: 1) Those governments have police, whose right to operate as such are reciprocally recognized. (The Iroquois Nation recently found out about the importance of reciprocal recognition.) 2) Those governments have money. 3) A psychological coordination game - a political entity just seems "real" once it and the people+territory it governs reach a certain size.

Also, the laws of limited, subordinate organizations must conform to the sovereign organization's laws - that is, be at least as, or more, restrictive - which means that each successive layer of government makes a more restrictive overall set of legislation almost certain.

Ultimately the issue is that we humans have figured out very few land use arrangements that allow multiple ownership of a parcel between political entities. This is in contrast to agreements about pieces of property between individuals, or agreements about individuals' labor. Yes, a piece of land can belong to a person as well as be within a country, but only rarely have two separate political entities agreed to administer the same territory (a notable exception in U.s. history is the agreement between the U.S. and Britain to co-develop Columbia (the Oregon Country) from 1818 through 1846, all the more remarkable because the agreement was completed between two countries that had been at war less than four years before; and here's what might have happened if hotheads had prevailed in the American government at the end of that period.) The existence of multiple political entities administering the same piece of territory would allow actual competition, and avoid pitfalls like the sclerotic effect of multiple levels of government, or the regulatory ratchet problem. U.S.-and-British Columbia might not have been the best place to test this theory since there was hardly anybody there, and it was the relative number of settlers that decided the problem. Post-colonial enclaves like Hong Kong, where a regional culture and government survives as a result of the past collision between two cultures, could be argued to be a half-way point to geographically simultaneous competing political systems.

Currently emigration is one of few things that drives innovation - you lose people if you don't fix the things that are broken about your state - but there are barriers there too. From the emigrant's perspective, it costs money to emigrate, and you probably have to learn a new language and customs, and you lose your social network, and the people in charge either often don't care or don't understand what's happening, so the feedback loop is broken.