The Missing Rules

Carl Malamud

Public.Resource.org

The Rule of Law Index is an invaluable tool for assessing conformance to the rule of law across the globe, but the index fails to measure an important indicator. Rule 5.1 specifies "the laws are publicized and accessible" as a key metric, echoing most classic formulations of the Rule of Law from Dicey's classic formulation to our modern era.

In our modern world, there are a class of technical laws that are in many ways the most relevant to our daily lives: building, electrical, fire, plumbing, fuel & gas, elevator, and boiler codes are common examples. Most countries also have stringent food safety laws, occupational safety, hazardous material storage and transport, and a raft of product safety regulations covering issues such as the safety of toys and children's apparel.

In most countries, access to these technical regulations is outsourced to private bodies. The private bodies are usually a creation of the state (such as the Crown-chartered British Standards Institution), and in quite a few cases are part of the state (such as the Bureau of Indian Standards). Yet, most of these organizations sell access to technical standards for jaw-droppingly high prices and carefully restrict subsequent use of the materials. In some cases, you may only download the laws as a PDF file to your computer, and Digital Rights Management (DRM) software restricts your ability to even cut and paste an excerpt from the document or print it.

In the United States, several thousand technical standards have been "incorporated by reference", a term of art which means that the lawmaker specifies the name of the standard as being part of the law or regulation, but instead of listing the document in the Federal Register or another official gazette, an address is given where a user can purchase the document.

The rationales for this system are many, and self-serving. It costs money to make high-quality standards, and it is felt that the government doesn't have to pay if they simply incorporate a private standard by reference. Of course, local and state officials, emergency workers, police officers, and many others have to pay to access the laws that they are charged with enforcing and obeying, so this isn't a matter of saving money so much as a shell game to pass costs around.

The organizations that make these standards do high-quality work, and they certainly need money. But, many of them have thriving businesses doing certification and testing.

And, many of these standards are meant to be enacted into law: many model codes start with a sample ordinance that cities may use ("We the people of [insert name of city here]"). The standards definitely need money, but when one looks at the million-dollar salaries these nonprofits pay their CEOs, some of the highest salaries in the nonprofit world, one can't help but think that maybe they don't need quite as much money as they get.

In the U.S., there are a long line of court cases that state that the law, be it a Supreme Court opinion or a Texas building code, has no copyright. Based on those opinions, the nonprofit organization I head started posting the building codes of the United States in 2008. We've had no takedown notices, letters of complaint, or any other indication from the standards bodies. In early 2012, we expanded those efforts to begin posting technical standards incorporated by reference into the Code of Federal Regulations. Again, despite having posted over 1,000 technical standards that are purportedly copyright, we've not been forced to take any of those documents off the Internet.

This New Year, these efforts were expanded to include 10,062 technical standards covering 24 countries and 6 regional entities such as the Caribbean Community, the European Union, and the Gulf States Organization. The standards we've published include the full Eurocode, and important legally-mandated standards for food machinery, woodworking machinery, home appliances and tools, medical devices, and food safety.

The rule of law is predicated on an informed citizenry that knows their rights & obligations. The legal basis for our publication is fundamental: the rule of law and human rights. This legal basis is spelled out in an extensive README file and accompanied by Twelve Tables which document the release. Our purpose in releasing the documents is clearly spelled out in the preamble of each:

In order to promote public education and public safety, equal justice for all, a better informed citizenry, the rule of law, world trade and world peace, this legal document is hereby made available on a noncommercial basis, as it is the right of all humans to know and speak the laws that govern them.

Publishing the law may be viewed by some as a radical move, but we hope governments of the world will realize this is a deeply conservative step, one meant to make technical regulations and statutes available to those that depend on them. We hope governments of the world will embrace this trend and make the criteria that the "laws are publicized and accessible" one of their key criteria. As Justice Stephen Breyer so aptly put it, "if a law isn't public, it isn't a law." In our modern world, code is law.