Re: POLI: Forest fire amendment
Fri, 21 Feb 1997 14:09:05 -0500 (EST)

In a message dated 97-02-20 17:27:34 EST, Damien Sullivan writes:

> Some time ago someone mentioned Jefferson's belief that each generation
> should remake its constitution and laws; Greg Burch replied that there's
> a lot of wisdom encoded in parts of the law, and it would be inefficient
> to recreate that over and over.
> But we don't have to. People can read the old laws and re-enact the
> good ones. The point is to force a reconsideration of the old
> structures, and in modern terms get around the public good problem
> (people won't organize to get rid of a bad law that hurts them
> slightly). Think of it as a forest fire: the useless brush and dying
> trees are consumed, the healthy live. Similarly the laws with strong
> justifications would be re-enacted; dross would be pruned.

One of the things I like best about this group is how bright the folks are
who are attracted to extropianism and who participate on this list. This
often exhibits itself in a "convergent evolution" of memes, with people
figurng out the same truths from different angles. Damien's "forest fire"
suggestion is a perfect example of this. The idea of a defined end to the
efficacy of a law or other government function, forcing the reconsideration
of its value, is actually known in at least the theory of legislation, but
unfortunately not very common in practice. It is called "sunset", in a
metaphor that really doesn't convey the worth of the idea as well as

I am by no means an expert on this subject, but do recall that the idea of
"sunset" features in legislation became fashionable in the late 70s and know
that at least some governmental agencies and functions have had sunset
provisions written into their enabling legislation since then. (I have a dim
recollection that it may have been a minor buzzword in the policy lexicon of
the Carter administration and know that it gets mentioned from time to time
in the Texas legislature.) But I can't think of any fundamental legislation
(like codes governing basic commercial or social relations) or big or
expensive governmental agencies that have serious sunset deadlines.

Furthermore, I can't think of any correlary of the sunset principle in any
common law system of which I am aware. Thus, for instance, in the common law
regimes with which I am familiar, a principle of law is just that until it is
affirmatively challenged and a conscious decision is made to change it. In
fact, the idea of a definite "lifespan" for a specific rule of law is quite
foreign to the fundamentally ad-hoc and case-specific process of developing
legal principles in the common law process. Thus Damien's suggestion of a
constitutional sunset or "forest fire" amendment would in fact be necessary,
as a matter of legal theory and practice in our current system.

> [snip Damien's specific proposal for a "forest fire" constitutional

I think my criticism of the re-writing of all laws applies here: The cost of
the disruption caused by the uncertainty of future legal principles that
would come from repealing ALL legislation at once would likely outweigh the
benefits from weeding out obsolete rules and regulations. The intricate web
of commercial and social relationships that make up life in society is
premised in large part on a precitability of results from the legal system
(even if those results are only NOTIONAL, i.e. the rules of decision in
disputes aren't actually invoked in real disputes -- because the parties know
the likely outcome of disputes). This observation by no means undermines the
great value of Damien's insight. Adoption of sunset or forest fire
principles as a fundamental feature of legislative and common law legal
regimes, with gradual application across all rules of law, is a very, very
good idea. I just think a gradualist implementation would be more likely to
capture the net benefits of such a legal tool.

Greg Burch <> <> or
"Justice: A commodity which in a more or less adulterated condition
the State sells to the citizen as a reward for his allegiance, taxes
and personal service." -- Ambrose Bierce