Legal anachronisms

A few days ago I was involved in a family “discussion” – a slight dispute between two brothers, each of whom had a clear perspective on an issue, but the trouble was that these perspectives did not match. One person present at the time was a young lawyer, who applied her legal brain to the matter and told them the logical resolution to the problem. She was totally right, but, of course, this was not a solution, as logic was not what was required.

This got me thinking about law and its applicability to the real world. Almost all law is entirely logical and the “right” conclusion can almost always be arrived at by careful consideration of what makes sense. If that were the whole story, then a good legal system is all that a society would need to achieve Utopia. But it does not work like that for two reasons. First, emotions get involved – two brothers for example. Second, the passage of time can make laws “corrode” …

It is interesting how, over quite short time periods, well-intentioned laws can start to go wrong. For example, in the UK there are very strict laws governing the advertising or products and services. Many long-term claims of benefits provided by various very well-known products were no longer allowed to be included in adverts, as they could not be substantiated. A famous example is a popular kind of beer [very black with a white “head”] was always promoted with the strap-line “xxx is good for you”. Although most consumers were in no doubt about its goodness, as it could not be scientifically proven, it could not be included in adverts. These laws applied to print advertising, billboards and broadcast media, which, in the 1960s when they were established, seemed to have the matter comprehensively addressed. And then along came the Internet. Until very recently, all of these laws simply did not apply to this new and ever more lucrative advertising medium.

Over longer time periods, such legal anachronisms can become much more entertaining, but can also have unintended consequences. For example, I moved house about 6 months ago. My “new” house is about 120 years old, so the legal documents appertaining to its ownership are interesting. The original builders were very well intentioned and did not want possible future owners [like me] to spoil the nice neighborhood. To that end, there are some restrictive covenants, which limit my behavior in specific ways. I found two of them particularly interesting:

Although I am sure that the original builders endeavored to do a good job when constructing the house [the first owner was actually the architect who designed it], they did recognize that nothing lasts for ever and eventually the house would be replaced. I am at liberty to do that, but I am subject to a restriction that I must build a structure of similar quality. As that description was too vague, they quantified the issue by saying that I must not spend less than £300 on the new construction. Although this was well intentioned, it is obvious that they failed to foresee the possibilities of house price inflation and that, a century later, constructing such a house would cost around 1000 times as much. £300 would buy quite a nice garden shed.

Although this first restriction does not concern me, the second one does have an interesting significance. The owners obviously did not want the building converted into a commercial premises, like a shop. To firmly nail that down, there is a rule that forbids me to install a steam engine in the house. At first, I thought that this was very amusing, but then I realized that this might be an issue. Currently the UK government is [apparently] very keen to encourage people to invest in sustainable technologies. One example is that, if you can generate electricity from a renewable resource or from waste energy, you can sell it back to the grid at a very good rate. A popular way to do that is by means of a combined heat and power central heating boiler. This is a gas-driven boiler [furnace is, I believe, the US term] which uses waste heat to generate electricity. I assume it does this using some kind of turbine, which is arguably a steam engine. So maybe I cannot have one. I had no immediate intentions of making such an investment, but I am such that Queen Victoria’s subjects would not really have wanted to restrict me from embarking on such an enterprising endeavor …