At The Margin

A comment yesterday by ScrubOne had me thinking about the problem of the margin in legislation. Simply put, the problem of the margin is the innate unfairness of a boundary which attracts a consequence on one side, but not on the other.  Take the speed limit as an example. Is someone traveling at 101 kph any more dangerous that a person traveling at 99Kph? Obviously not; yet the former is breaking the law and the latter is not. The police may give a leeway of 5 kph, but this only makes the margin 104/106 kph. A leeway of 10 kph simply shifts everything another 5 kph out. Inevitably the enforcement of the law near the margin will lead to unfairness.

The same can be said for the ban on smoking in cars proposed by a group of doctors the other day. Here, the margin is the age of the child (the proposal is under 18). This would mean smoking mum is liable for a fine when transporting Johnny the day before his 18th birthday but not the next day. She can also smoke like a chimney until Johnny gets into the care but will be fined for a single puff afterward (despite the obvious fact that the atmosphere would still be just as toxic if mum stubbed out the fag as Johnny entered). In addition, as soon as smoking mum gets home she can blast her son with second-hand smoke perfectly legally. The margin makes a mockery of the law.

Banning always produces strange effects at the margin but most legislation will have some unfairness intrinsically built in by some sort of boundary.

Labour has tried to overcome this effect by extending its legislation as far as possible, pushing the margin effect out into irrelevancy. Unfortunately this has other consequences such as absurdly providing subsidies for people who manifestly do not need them.

It seems that John Key’s preferred method for trying to avoid the margin effect is to make the boundary as indistinct as possible. The repeal of section 59 is an excellent example of this. The margin created by Sue Bradford was very sharp indeed. All smacking for corrective purposes was a criminal activity. Mr. Key added police discretion into the mix, making the boundary far more nebulous. After all, does anyone actually know how much smacking the police will tolerate?

Attempting to hide the problem of the margin this way merely creates uncertainty and results in fear and confusion. It may be good for people to fear the consequences of the law, but it is certainly not good for people to fear the application of the law. Today’s announcement of National’s proposed change to the Seabed and Foreshore act is a good example of obfuscation of the margins. It requires Maori to be reasonable. While this may indeed be true for the majority of hapu, there will almost certainly be some who will not be reasonable, thus destroying certainty and replacing it with doubt. It is possible that this may still work well in practice, but at the sacrifice of some certainty and consequently, the sacrifice of some larger developments of the foreshore. Given the sensitive nature of this matter, this may be a reasonable compromise, unlike the repeal of section 59.

There is a third way to deal with the problem of the margin and that is the staggered margin. This means that the margin is set at multiple levels and the consequence of the law is introduced in increasing amounts. This is often favoured in things like Working for Families and abatement rates for the benefit. In general, the problem of the margin is still there (just less obvious) and the method is complex, causing considerable administrative problems. This method is also used in criminal law, in which penalties are staggered according to the actual crime committed (in addition, criminal law relies on judges to increase the gradations of punishment). Staggered margins are certainly too complex for most purposes.

There is a very good way of avoiding the problem of margins in law and that is not to make any law at all. That nice Mr. Key would do well to remember this and avoid legislating just to be seen to be “doing something”. The margin often brings unintended and absurd consequences that are easily foreseeable at the outset. The process merely makes politicians look stupid rather than useful.

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