This article explains a phenomenon I've been observing with growing uneasiness that I couldn't quite put my finger on till now.
Which is basically the number of laws I've seen popping up (more especially in the UK and Aus) wherein they don't provide a specific set of criteria or requirements that a person (or more often a corporation) must meet to be in violation of a law or statue but instead empower a body or office to "regulate", "manage", or "investigate" certain issues or affairs. Without specifying criteria or specific actions that would trigger the decision making of the office in question, thus leaving it entirely to the elected official or buearacat's judgement.
I noticed this a couple of years ago where when there was some law around social media being proposed in the Australia where it set out just a minimum revenue value for a company and then left it up to the discretion of the minister of communication.or something like that.
The reason this worries me so much is because one of the foundational cornerstones of western civilization has been the rule of law. Wherein there was a law set forth that set forth specific actions that are allowed or prohibited, e.g. "Don't murder", and everyone knew them and was held accountable to them, it didn't matter how horrible you were or how much evil lurked in your heart or boardroom, what mattered was did you break law X,Y or Z.
However this trend towards delegating power and decision making to an individual office or committee is an abandonment of this principle in favor of a return to rule by individuals who decide at their whim whether to allow or prohibit a thing, where by simply being in favor with certain bureaucrats one can be immune from accountability where politically unpopular targets can be harassed by the state without end simply because they are not politically favored.
It is terrifying and frightening to me that we are choosing to abandon the rule of law in favor of a return to the days where the king and priests would arbitrarily be able to make their divine decrees to punish their foes and exalt their friends.
I notice this too. I also see bureaucrats choose policy or implementation details without any way of trying to measure if outcomes match their expectations. This results in lots of bad policy and general state mismanagement.
Curtis Yarvin talks about how FDR created federal departments to ensure his programs could not easily be stopped by his successors. This is spun as “it is better to let experts work out the details.” But we don’t have a good way to determine who is best to make a decision, who is the top expert?
I think almost all policy should be fully democratic and it should be possible for the public to remove bureaucrats who make unpopular decisions. I like the idea of direct democracy but it does require a very well informed population which is a very high bar.
They aren't abandoning the rule of law, the pattern is one of creating powers for secondary legislation. This means that the relevant minister (and ministry) can write that regulation. The courts would very quickly strike down anything arbitrary as "ultra vires" - "beyond the power" give or take.
Secondary legislation is very common around the world and is simply a way of delegating technocratic stuff to the relevant department.
A fair criticism of this is the lack of parliamentary scrutiny and placing power in a ministry that might well operate a revolving door with the industry it is meant to regulate.
Even so, the HoL does have scrutiny of secondary legislation and secondary legislation can't take precedence over human rights etc.
Edit: just to stress, the powers delegated are about rulemaking, not arbitrary judgement by bureaucrats.
Social Media (Basic Expectations and Defamation) Bill 2021
> 6 Investigation of complaints
> (1) The Commissioner may investigate a complaint made under section 5.
> (2) An investigation under this section is to be conducted as the Commissioner thinks fit.
> (3) The Commissioner may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as the Commissioner thinks fit.
[1]
The phrase "The Commissioner may" and the "as the Commissioner sees fit" each appear twice
> Part 5 of the Bill will when enacted create something called the Independent System Operator and Planner, a legal person (‘likely a company’), which will do all sorts of vaguely-defined but important things, like ‘co-ordinating and directing the flow of electricity onto and over transmission systems’, ‘carrying out strategic planning and forecasting in connection with…the conveyance or supply of electricity [and] the conveyance and supply of gas’, ‘providing advice or information’ to government ministers, and so on. And the Bill also mandates that it shall do these things in view of three requirements: to achieve Net Zero, to secure energy supply, and to promote economy and efficiency.
As part of the bill under discussion in the OPs article.
Those are just 2 instances I found without much looking.
If the government makes a rule that nobody is allowed to use "inefficient" light bulbs anymore, and then gives the power to a bureaucrat to determine what is "inefficient," that's a great example of the administrative state having the actual power.
You're right that it is common around the world. And it's a huge problem. Because nobody can know what's illegal in the US, for example. If nobody can know, then how can we claim we live under the rule of law?
The Australian system is deliberately 'overbearing' in it's rules because there's an understanding its not going to be uniformly enforced and the average joe's are going to break the rules according to a relatable need.
The UK does it's decision making behind closed doors.
The US is not free from bias. The time-wasting setup is no accident. There's plenty of opportunity to make the US more fair for external connections (and internal connections).
I'd take a King and Priest that doesn't choose free market winners, over a system that rewards patents and regulation in the place of real wealth creation.
> The Australian system is deliberately 'overbearing' in it's rules because there's an understanding its not going to be uniformly enforced and the average joe's are going to break the rules according to a relatable need.
So selective enforcement a powerful tool of tyranny and oppresion
> And let's not pretend the US is free from bias. The time-wasting setup is no accident. There's plenty of opportunity to make the US more fair for external connections (and internal connections).
The US isn't free from these problems either but it seems to be happening more slowly, which I'd attribute in part to the division of power inherant within a Federalist structure, the more explicit enumeration of rights within the US constitution and the fact that many people in the US get aggressive, belligerent and fight like hell when they feel they've been wronged or want "justice"
> I'd take a King and Priest that doesn't choose free market winners, over a system that rewards patents and regulation in the place of real wealth creation.
They will be choosing the free market winners with the rise of the individual judgement, that's exactly the problem is that their friends will be given to win while they will use the ambiguity to punish people they don't like. Further this has nothing to do with capitalism or anything like that, the state is just as likely to be populated by individuals that are unscrupulous, power-hungry and greedy as anyone in the corporate world.
Which is basically the number of laws I've seen popping up (more especially in the UK and Aus) wherein they don't provide a specific set of criteria or requirements that a person (or more often a corporation) must meet to be in violation of a law or statue but instead empower a body or office to "regulate", "manage", or "investigate" certain issues or affairs. Without specifying criteria or specific actions that would trigger the decision making of the office in question, thus leaving it entirely to the elected official or buearacat's judgement.
I noticed this a couple of years ago where when there was some law around social media being proposed in the Australia where it set out just a minimum revenue value for a company and then left it up to the discretion of the minister of communication.or something like that.
The reason this worries me so much is because one of the foundational cornerstones of western civilization has been the rule of law. Wherein there was a law set forth that set forth specific actions that are allowed or prohibited, e.g. "Don't murder", and everyone knew them and was held accountable to them, it didn't matter how horrible you were or how much evil lurked in your heart or boardroom, what mattered was did you break law X,Y or Z.
However this trend towards delegating power and decision making to an individual office or committee is an abandonment of this principle in favor of a return to rule by individuals who decide at their whim whether to allow or prohibit a thing, where by simply being in favor with certain bureaucrats one can be immune from accountability where politically unpopular targets can be harassed by the state without end simply because they are not politically favored.
It is terrifying and frightening to me that we are choosing to abandon the rule of law in favor of a return to the days where the king and priests would arbitrarily be able to make their divine decrees to punish their foes and exalt their friends.