Rules you don’t enforce are worse than useless

March 18, 2009 | Essential posts, Policy, Primer posts, Regulation, Theory

Just as fuzzy boundaries are bad boundaries, rules that are not enforced are worse than useless.  For they give some people the illusion of order, while others know the reality of disorder.


Which led me, over the years, to expound this simple principle:


Rules you don’t enforce are worse than useless



I know alcohol’s Prohibited, officer, but can’t you overlook it …. Just this once?


That’s the principle behind the ‘broken windows’ theory of urban security – for it everyone can see that an anti-graffiti rule is routinely flouted, then the observant herd concludes that all other rules can be broken with impunity.


I’ve been meaning to write this post for years, because I chant it now and then, and its implications are myriad:


Inconsistent enforcement creates corruption.  When parking tickets can be fixed, parking laws are ignored.  That’s the problem with corruption – the mismatch between law on paper and law of money. 



Fine sentiment, but where’s the enforcement?


Widespread non-compliance undermines the rule of law.  What, in administrative terms, was the problem with Prohibition?  Not that it deprived people of a recreational substance, but that non-compliance was so pervasive it recruited just about everybody into a shadow system of speakeasies and bathtub gin.



Drinking in the Blind Pig during Prohibition


It’s no coincidence that organized crime came to prominence in America during Prohibition – so many people benefited from booze smuggling that the criminals had friends in high places.  And that contributed in no small measure to Prohibition’s repeal.


(This is the principal pragmatic argument in favor of decriminalizing marijuana – if its use is so widespread as to constitute societal disobedience, continued enforcement is doomed to failure, and therefore enforcement against more dangerous drugs is likewise undermined.)



Whatever, dude


Disconnected rules create dangerous illusions of order.  A plethora of rules gives policy makers the illusion that there is order – that they simply decree something and it shall be so.  As Owen Glendower pompously put it:


Glendower: I can call spirits from the vasty deep.



I call spirits from the vasty deep!


But, as Hotspur, his chief of staff, tartly replied:


Hotspur: Why, so can I, or so can any man;
But will they come when you do call for them?


Promulgating rules as if that by itself will cause their adoption is allows policymakers to look good without being accountable for achieving anything, without bothering to determine if the rules are enforceable in practice or with the bureaucracy we have.


Too many rules make compliance impossible.  The more rules, the more potential conflicts among them, the greater the difficulty of complying.  I well remember a state housing finance agency general counsel who told me, with particular glee, that her goal in drafting and mandating a certain set of loan documents was to have all borrowers in at least technical default all the time.


If you have too many rules, you can never be in compliance.  Once perfect compliance becomes impossible, we have the bee-sting problem – people stop trying.



I can’t comply no matter how hard I try


Bureaucratic perverse incentives.  My favorite example of rulemaking with perverse consequences is HUD’s well-intentioned Previous Participation System.  Begun in 1966, Previous Participation is intended to keep bad actors out of HUD properties – a worthy goal.  Yet the rules, boiled down to their essence, consist of the following:


1. Apply Previous Participation only upon a change in control of a property.

2. Ask the applicant:

   A. Has any HUD property you’ve been involved with got into trouble?

   B. If so, please prove that the trouble wasn’t your fault.


Sounds simple enough, doesn’t it?  It has several glaring weaknesses:



That for your Previous Participation!


1. It applies selectively.  Anyone not seeking to do new business with HUD can thumb its nose at HUD, because Previous Participation is toothless.

2. It applies too narrowly.  Because it looks only at HUD experience, recidivists in other housing sectors are considered virgins. 

3. It penalizes experience.  The more a company does business with HUD, the harder it becomes to pass Question A.  So the system selects in favor of neophytes and against proven performers.

4. It penalizes courage.  Just like baseball fielding percentages, which score errors rather than counting chances successfully handled, HUD Previous Participation penalizes heavily those who take on a tough property. 

5. It penalizes responsiveness.  I well remember a war-by-memo many years back, where HUD wrote a two-page letter of complaint, to which the owner responded with a five-page letter of response, to which HUD responded with a twelve-page letter of further indictment.  Whereas, had the owner simply blown off the first two-page letter, the matter would have lain unresolved, without penalty.


A similar dynamic arises in CRA compliance, whose teeth bite only when a bank wants to buy another bank.


Lack of enforcement covers up a larger failure.  When we have rules that everyone ignores, we think we have the problem under control, which is a dangerous illusion.  It’s much better to know that we’re not doing the job, than to pretend to ourselves that we are.



I am enforcing all my statutes


Extended failure to enforcement nullifies enforceability.  In law, if I have for an extended period declined to enforce my right, I often lose it, through the common-law principle adverse possession or the more formalized principle of laches (where the opposing party is said to have “slept on its rights”).  In the extreme case, ‘lender liability’ applies – if I as the lender verbally promised you the borrower that I wouldn’t enforce against you,


Slum formalization.  By definition, slums in the global south represent disconnects between the rules and their enforcement.  Slums are built on conservation land, on public land, on private land.  They are built without regard to lot-line boundaries, building structural or health and safety codes, density or height restrictions, and on and on. 



Kibera: a hundred years of illegal urban living


All the superstructure of municipal enforcement is ignored daily by hundreds and thousands of people.  Reality on the ground and reality in the law have little connection with each other



Kibera wiring: when your house is illegal, your power must be illegal too


Pledges become absurd as they become empty.  How many Kyoto accords does it take to bring down carbon emissions?


Posturing replaces actions.  In 1950, how many UN resolutions did it take to defend South Korea?  If 2009, how many UN resolutions will it take to denuclearize North Korea? 



That’s for me to know and you to keep trying


How many OPEC meetings does it take to bring down the price of oil?  How many global recessions?




In Harvard Yard, there used to be signs saying Bike-riding is forbidden, which signs were ignored because careful biking across Harvard Yard makes eminent sense.  A few years back, the signs were changed to Please walk your bike.



Not a rule, a request