It's not "sad." If you place a very high value on transparency, you may wish to see a different model. But the current model isn't unreasonable. The standards incorporated into codes are industry consensus standards developed by non-profit expert organizations. It's reasonable for governments to rely on them. And under the current model, it's the entities (builders) that directly profit from construction that pay for the development of building codes.
It's a very different situation form the public availability of laws and judicial opinions generally, which are within the core expertise of public bodies and are entirely publicly funded to begin with.
Assuming one believes that only those professionally engaged in a given pursuit should be allowed into that pursuit at all, I suppose one can be OK with it. (Although that model still leaves citizen-units unable to review work contractors do for them - how are they supposed to know if work was done to code if they can't read the code?)
If, however, you believe it is acceptable for home owners to repair their own homes or understand the laws that govern the buildings in which they live or lease to others, then you start leaning towards the notion that those governed by laws should be allowed to read them without private actors extracting a rent.
There is a big difference between transparency of operations (the right to know what your government is up to) and transparency of law. Both are important, but confusing the two doesn't do anyone any good.
I do think a "minimum viable democracy" needs the laws to be publicly reviewable without precondition. There can't be equal protection before the law when the law is only accessible for payment. That only a subset of humans are involved in the trades doesn't change the fact that the laws effect me, even if I'm not building my own house.
It is sad. The current model has always been a contradiction, and thus is unreasonable.
A law must be public. To do otherwise is to erode the very concept of the rule of law.
If a state adopting a code puts it in the public domain, then the code bodies should be suing the state for copyright infringement (unauthorized derivative work), and demanding that states pay to license the code for such use.
If a state adopting a code does not put the code into the public domain, then it should lack all legal force. This isn't a fantastic outcome with regards to building codes, so the state will need to fix the situation.
But instead of forcing a decision one way or another, both the code bodies and slimeballs in government have been content to just let it slide. They both benefit in their own way by corrupting the rule of law, while only the citizens suffer.
How exactly have I, a citizen, suffered from the current state of affairs? I get the theoretical argument that all laws should be 100% public but are there any practical negative effects that you can point to?
Obviously if you don't need anything done that is subject to those laws, then you do not suffer.
But, for example, if I didn't have access to the electrical code, I would have been unable to definitively follow the law when running some new power circuits. I would have had to rely on folk guidelines and general engineering knowledge, and could have possibly done something that would cause legal problems down the line.
Furthermore, I may have decided that such a thing wasn't worth getting into, and been pushed into hiring an expensive contractor instead.
There are a lot of things one could do when wiring that seem like they'd be fine, or even actually are fine, but go against code. And reading the code, one really does get the impression that a lot of it was "written in blood".
Based on your wording, I don't know if you know this. But presently the issue of practical accessibility is actually moot thanks to the work of Malamud. The NEC, along with many others, is available right here: https://law.resource.org/pub/us/code/ibr/
That's a very ideological take on the issue. The law regularly references standards that often aren't even reducible to writing. E.g. a doctor may be liable to a patient for not conforming to accepted standards of medical practice. But no writing exists that completely defines what those standards are!
As a practical matter, the folks charged with following the laws in question are builders. Builders are also members of the standards bodies that create these standards. And they're the ones who pay for the standardization process by purchasing copies of the standards.
I actually agree with you that these standards should be publicly available, by the way.
The justification for the rule of law is inherently ideological. If the law is just another pragmatic tool for the powerful to oppress the weak, then why should the masses respect the concept?
> a doctor may be liable to a patient for not conforming to accepted standards of medical practice. But no writing exists that completely defines what those standards are!
It seems like an "accepted standard of medical practice" is therefore a matter of opinion, meaning you could find two professional witnesses who reasonably disagreed.
But much of the building codes are hard requirements - you're never going to be able to find a professional opinion that running a 20A residential circuit on 14AWG Romex is acceptable, even if say it's only in an uninsulated wall and is therefore likely safe.
So the two are completely different. Likely in the medical field, ambiguously policing those who stray too far from the herd is the best that can be done. But in disciplines with hard engineering rules, we can do better.
> As a practical matter, the folks charged with following the laws in question are builders
Erm, what? That's somewhat like saying the only people tasked with following
traffic laws are drivers. Well sure, but in that sense we're basically all drivers.
Or if you mean that imply that only professional commercial builders are bound by those laws, that is definitively incorrect. People doing their own work are still bound by the law, even in the ridiculous nanny states that attempt to criminalize people working on their own home.
> The justification for the rule of law is inherently ideological. If the law is just another pragmatic tool for the powerful to oppress the weak, then why should the masses respect the concept?
The law is a pragmatic tool to solve problems. Building codes solve a concrete problem with the market for construction: there is an immense information asymmetry between the original builder and subsequent buyers. Moreover, there are externalities because, e.g., inferior construction of one person's property can cause fire to spread to other peoples' property.
The existing model solves the problem and shoves most of the costs of doing so on builders--the parties best equipped to deal with the problem. That makes it a reasonable solution.
Your driving analogy fails because almost nobody builds their own house. Imagine instead that almost everyone rides in self-driving cars. Under those circumstances, would it really be unreasonable for the law to incorporate traffic regulations developed by the industry and optimized for automated cars?
But as I said elsewhere, it only functions if people believe in it ideologically. If a store relied solely on punishment for shoplifting as deterrent, they would need to hire many more security guards to watch every single customer. What they actually rely on is the average person's belief that stealing is "wrong", because said average person does not want to be stolen from themselves.
> Your driving analogy fails because almost nobody builds their own house
It's not only the initial building of a house, it's about any maintenance, repair, or upgrades. Knowing how to keep up your dwelling is a basic life skill. You may find it economically beneficial to pay someone else to do the actual work, but that doesn't alleviate your ultimate responsibility for managing it.
If you want an illustration of how many people DIY versus pay a tradesperson, take a look at the popularity and selection of consumer-facing stores like Home Depot versus professional-only "counter service". Granted, most of these people would be happier reading a distilled "code complete" book rather than the dense NEC. And many more of them will proceed to, for example, swap a lamp on their own without reading anything at all! But they should still be given that choice openly and have access to the actual law nonetheless.
> The justification for the rule of law is inherently ideological. If the law is just another pragmatic tool for the powerful to oppress the weak, then why should the masses respect the concept?
The ideological justification for the rule of law is not necessarily opposed to it also being a pragmatic tool for the powerful.
One of the best ways to understand the legal system is as a tool for elites to secure their privileges and avoid violent confrontations over who gets those privileges.
But in order to actually accomplish that, it needs to have the buy in of the masses, who would otherwise revolt to take away those privileges.
The common person needs to believe that they too are protected through the legal system, and so it is worth following the rules and forcing others to follow the rules. This is what makes it a Schelling point.
As an aside, the "drug war" has helped destroy this belief, especially harshest for minority communities. This has resulted in social breakdown and creation of movements like "stop snitching" and Black Lives Matter.
I'm not suggesting cynicism here or that the common person "shouldn't" matter or be protected.
There's a very cogent argument about the development of laws as a way for elites to pragmatically secure their prerogatives, historically, by North, Wallis, and Weingast. Their book is "Violence and Social Orders" and there's a good paper on it here: http://www.nber.org/papers/w12795
Builders are also members of the standards bodies that create these standards. And they're the ones who pay for the standardization process by purchasing copies of the standards.
But if you re-do you own home wiring, you effectively become a "builder". And you probably aren't a member of that industry organization.
The real problem is here is that two things are being commingled that should not be. Something that is inherently "public" - the law, and something inherently private - codes developed by industry standards. The real solution is to stop doing this "incorporation by reference" altogether. But if we are going to incorporate, it makes no sense to treat this chunk of law as different from the rest.
> But if you re-do you own home wiring, you effectively become a "builder". And you probably aren't a member of that industry organization.
But what fraction of people do that? That's my point--ideologically I agree with you. But I don't think you can take what is basically a corner case in the legal regime and point to that and say it's an unreasonable tool for the elite to use the law to oppress the weak.
I don't buy your "public/private" dichotomy at all. The government should defer to the expertise of private industry when necessary. The small potential for abuse (and there is no evidence that the standards bodies here are abusing their position), does not justify imposing laws on everybody designed by government bureaucrats acting outside their area of expertise.
But I don't think you can take what is basically a corner case in the legal regime and point to that and say it's an unreasonable tool for the elite to use the law to oppress the weak.
I guess we don't disagree too much then. FWIW, I'm not saying anything about "the elite oppressing the weak" - at least not in this context. To me this really is just a matter of principle.
The government should defer to the expertise of private industry when necessary. The small potential for abuse (and there is no evidence that the standards bodies here are abusing their position), does not justify imposing laws on everybody designed by government bureaucrats acting outside their area of expertise.
This is why I'd prefer to get the government out of this altogether. But, then again, I'm a Libertarian, so I want the government out of pretty much everything altogether. :-)
What's the difference between a (building) code and a law? (Asking genuinely, since you are in a position to possibly answer authoritatively).
I understand the system works currently, but I can't help but feel that my rights have been curtailed be hiding information from me that is required to exercise those rights in some cases. If SDOs provide an essential service, then I think we need to find a way to fund them that is not based on hiding knowledge of the law. Maybe that's a percentage of inspection fees, or some something else.
> What's the difference between a (building) code and a law? (Asking genuinely, since you are in a position to possibly answer authoritatively).
Building codes are laws, but they may reference external standards which are not laws. Say Congress passed a law requiring all medical device software to meet certain requirements, with one of those requirements being that it is written in conforming C99. You can't follow the law without following the standard, but the standard is not itself a law.
I actually agree with you that we should find a way to fund development of building codes that allows for them to be freely-accessible. I think the ABA proposal, which requires a readable copy of the standard to be posted publicly, is not a bad approach. My point is that the existing system isn't some "sad" subversion of democracy. It's not the solution you'd pick if you value transparency above all else, but it's also not the product of some shady cabal.
Those organizations are entitled to payment, but the people are entitled to know the law they are subject to.
Also, the trade organizations, not the builders write the standards. They have a vested interest to protect the craft, which isn't in-line with the builders interest. Look at PEX pipe and shark bite fittings, which are still illegal in California for an example.
In my city, the government has basically criminalized many classes of home improvements to provide artificial scarcity to prop up Union tradesmen and a small number of locally licenses tradesmen. You need a $75 permit, and a licensed plumber working for a master plumber to seat a toilet. So a legal toilet requires about $500 in labor. Outside of the city limits, that job is 40-60% less.
Yes it is, unless you believe you can "have your cake and eat it" at the same time. Laws should be public; I have a hard time seeing how anyone could dispute that. And if codes are "incorporated by law" then they simply must be public as well.
It's reasonable for governments to rely on them. And under the current model, it's the entities (builders) that directly profit from construction that pay for the development of building codes.
Those two things may be true in isolation, but it's not the case that "It's reasonable for governments to rely on them" if they can't be made public when incorporated as part of the law.
As others have pointed out, everyone is required to comply with these laws, not just for-profit "builders". This would be like having laws regarding the allowable ways to fix your car or your washing machine, and having those laws referencing documents you have to pay for.
