How did we get from natural law to natural rights?

It seems to be becoming fashionable these days for people in the western world to downplay the importance of liberty. Some people even express a Utopian vision of a society in which we would sacrifice liberty to enable wise scientists to govern our lives, making sure we don’t harm the environment, that everything we do is in the interests of social justice, that no-one says or does anything that might offend anyone else, and of course, that we all feel happy. When you try to remind these visionaries that scientific socialism ended in tyranny, they say it will be different next time. When such people take over, guess what happens.

"Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men."

Lord Acton wrote that in 1887, well before Lenin, Stalin and Mao, came on the scene as young idealists, intent on creating utopias. They were ruthless in attaining power, and became evil tyrants to retain it.

Anyone who doubts the value of liberty should ask themselves what it would be like to live in a country that doesn’t allow the basic freedoms that they take for granted. What would it be like to live in a country where you don’t have freedom of religion, where you can be put in jail for expressing views not approved of by political leaders, where you could be subject to arbitrary arrest, where your property can be seized by the government, or where your freedom to  move around is restricted? Such countries are still easy to find.

The purpose of that introductory rant was just to suggest that the liberty we have is worth keeping. If you want to keep it, you should be interested in how we got it.

You don’t need to know much history to be aware that recognition of the right to life, liberty and property has had strong links to the concept of natural rights. You might also be aware that John Locke 1632 -1704) is widely viewed as an important figure in promoting the concept of natural rights.

John Locke’s Second Treatise on Civil Government was “outstanding in its lasting effects”. The quoted phrase, by Friedrich Hayek, is in the Constitution of Liberty (p 170). Rights to life, liberty and property are often referred to as Lockean rights. The attribution is appropriate even though the definition of such rights has changed somewhat since Locke wrote his Second Treatise. Locke’s exposition of natural rights has had lasting effects on political philosophy and discussion of constitutional issues.

Locke’s view of natural rights stems from his perception of the state of nature, prior to government:

“In this state men are perfectly free to order their actions, and dispose of their possessions and themselves, in any way they like, without asking anyone’s permission—subject only to limits set by the law of nature”.

He goes on to explain that natural law entails obligations to respect the life, liberty and possessions of others:

“The state of nature is governed by a law that creates obligations for everyone. And reason, which is that law, teaches anyone who takes the trouble to consult it, that because we are all equal and independent, no-one ought to harm anyone else in his life, health, liberty, or possessions.”

A couple of chapters later, in explaining property rights, Locke asserts that individuals own themselves:

“every individual man has a property in his own person; this is something that nobody else has any right to. The labour of his body and the work of his hands, we may say, are strictly his. So when he takes something from the state that nature has provided and left it in, he mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property”.

John Locke obviously made an important contribution in explaining that natural law implies natural rights. However, I don’t think a few quotes from Locke provides an adequate answer to my question of how we got from natural law to natural rights. As discussed in a recent post, the history of liberty began in the ancient world.

Where can we find an example from the ancient world of a statement of natural law that provides some recognition of a right to liberty? Aristotle might come to mind as a possibility, but as indicated in another recent post, I have some misgivings about his account of natural law.

Cicero provided a more coherent account of natural law, in my view. He saw natural law as a moral force integral to human nature, whilst also recognizing the laws of the republic as the product of an evolutionary process protecting the rights of citizens.

 Cicero was a Roman statesman, lawyer and philosopher who lived from 106 BC- 43 BC. He has been described as eclectic in his philosophy (e.g. by Anthony Kenny in A NewHistory of Western Philosophy, 2010). For my purposes, Cicero’s eclecticism is helpful. His views provide a coherent synthesis of some of important contributions of those who came before, including Aristotle and the Stoics.

The following quotes from Cicero’s Treatise on the Laws illustrate his view of natural law as an inner moral force:

“For of all the questions on which our philosophers argue, there is none which it is more important thoroughly to understand than this, that man is born for justice, and that law and equity are not a mere establishment of opinion, but an institution of nature”.

“But in nothing is the uniformity of human nature more conspicuous than in its respect for virtue. What nation is there, in which kindness, benignity, gratitude, and mindfulness of benefits are not recommended? What nation in which arrogance, malice, cruelty, and unthankfulness, are not reprobated and detested!”

“It follows, then, in the line of our argument, that nature made us just that we might participate our goods with each other, and supply each others’ wants”.

“As far as we are concerned, we have no other rule capable of distinguishing between a good or a bad law, than our natural conscience and reason. These, however, enable us to separate justice from injustice, and to discriminate between the honest and the scandalous”.

The laws of ancient Rome gave citizens immunity from arbitrary arrest and recognized their rights to make legal contracts, to own property, to choose an occupation, and to move freely, as well as the right to vote and stand for public office. In the introduction to The Republic Cicero recognised that the laws of the republic were the product of an evolutionary process. He approvingly quoted Cato, the elder, as claiming “that the condition of Rome was pre-eminent above all other countries” because: 

“the constitution of our republic was not the work of one, but of many; and had not been established in the life of one man, but during several generations and ages. For [Cato] said so powerful a mind had never existed; from which nothing had escaped; nor that all minds collected into one, could foresee so much at one time, as to comprehend all things without the aid of practice and time”.

It seems to me that many of the ingredients of John Locke’s perception of natural rights were already present in Cicero’s account of natural law. That leads me to my next question:

How did we get from Cicero to Locke?

How could the great philosopher of human flourishing endorse slavery?

Aristotle (384-322 BCE) was the great philosopher of human flourishing. He argued that although health, wealth, honour, pleasure etc. may be sought for themselves, we choose them also for the sake of living well. Living well involves making use of the vital functions that make us human. Many of the vital functions of humans, including nutrition, reproduction and movement, are the same as those of other animals. However, humans also have the capacity to use reason to guide themselves and exercise appropriate moderation in their behaviour. Parents and fellow citizens may help us to acquire good habits, but we are individually responsible for exercising the practical wisdom that we require to flourish.

It would be reasonable to expect that a person who held such views would be opposed to slavery on the grounds that slaves can only use reason to guide their actions within the limits imposed by their owners. So, how could Aristotle endorse slavery?

Julia Annas explains in The Morality of Happiness that Aristotle saw slavery to be natural. His appeal to nature has two aspects. The first is his claim that slavery has a natural basis in differences between types of people. According to Aristotle, there are “natural slaves” whose “state is such that their function is the use of their body, and this is the best they can do”. On that basis he argues that “it is better for them to be ruled”. He also suggests that the benefits owners obtain from use of slaves “differs only a little” from those obtained from use of domesticated animals. Aristotle saw the relationship of subordination between owner and slave as an example of a general pattern, also encompassing the relations between men and women (p 152).

The second aspect of Aristotle’s appeal to nature was based on his observation that slavery was widespread and should therefore be considered natural.  (p 153).

Julia Annas suggests that Aristotle’s defence of slavery fails even in terms of his own view of what is natural. Aristotle distinguishes between natural behaviour, governed by internal sources of change, and forced behaviour, brought about by external factors that overrule the internal sources of change. Even if we were to accept Aristotle’s claim that some people are natural slaves, that cannot explain the functioning of actual slavery which is based on the use of force.  Again, Aristotle’s observation that slavery was a “near universal social institution” did not justify his inference that it is natural in the sense of not resting on force. Annas comments:

“The usual may be natural with plants and animals, but the complexity of human nature allows the usual to be something that is forcibly repressed, unjust and in every way frustrating to normal human capacities” (p 155).

How could Aristotle not see this? Perhaps he perceived that some people are natural slaves because he couldn’t imagine the slaves he knew as free citizens. Many of us have a somewhat similar problem today is assessing the potential of individuals to accept more responsibility than they have at present. There seems to be a common cognitive bias that leads us to identify people with their current roles. We don’t know what people are capable of until we see them in a different role.

Aristotle’s perception that it was natural to make slaves of defeated enemies can possibly be explained as the biased perception of a slave owner, but his loose definition of circumstances in which external force is involved left him scope to take a biased view. He was able to disregard the use of force at the heart of the system of conquest and slavery by identifying the whole system as a natural system.

Similarly, Aristotle’s loose definition of circumstances in which external force is involved enabled him to condemn the profit motive and the market economy. In this instance he identified the natural system as the primitive system of directly producing what meets one’s needs, and only using exchange as much as required to satisfy unmet needs and get rid of unusable surplus. That enabled him to identify the market economy as an external force that disrupted a natural system.

Aristotle’s view of what is natural would have been less prone to bias if it had been based on the natural rights of individuals, and hence the naturalness of mutually beneficial voluntary cooperation and exchange among individuals. That would have made it much more difficult for him to condone any use of force (coercion) that constrains individual flourishing.

However, we shouldn’t judge Aristotle too harshly for his wobbly views about what is natural. It is worth remembering, that a more coherent view of natural law didn’t prevent eminent philosophers who lived much later from also endorsing slavery. For example, Thomas Aquinas, who lived over 1500 years after Aristotle, also endorsed slavery despite holding the view that the first precept of the natural law is to do good and avoid evil.

A question worth exploring further is the extent to which Aristotle’s views on the potential for individual human flourishing played a role in the eventual recognition of the natural rights of individuals, via Aquinas’ endorsement of those views in his natural law theory of morality.

Was individual liberty discussed as a political ideal in the ancient world?

“There seems to be scarcely any discussion of individual liberty as a conscious political ideal (as opposed to its actual existence) in the ancient world.”

Isiah Berlin wrote that in his essay, Two concepts of liberty, first published in 1958. Berlin was a distinguished, Russian born, British social and political theorist, philosopher and historian of ideas. His view should not be lightly dismissed, but he does seem to have understated the extent of discussion of individual liberty as a conscious political ideal in ancient Athens and Attica.

Why should we care whether people in the ancient world discussed individual liberty as a conscious political ideal, or just took it for granted? I think we should care because the reasons why norms of liberty emerged and disappeared in parts of the ancient world may have contemporary relevance. An understanding of the role played by conscious endorsement or opposition in sustaining or eroding norms of liberty in the ancient world might help us to understand the presence, absence, strength or fragility of those norms in various parts of the world today.

In one of his online articles about Ancient Greece’s Legacy for Liberty, Roderick Long draws attention to the views of Hesiod, along with Homer one of the twin founders of Greek epic poetry. Hesiod’s poems appear to date from the 8^th or 7^th century BCE. In his poem, Works and Days, Hesiod advocates respect for the rights of others. He advises his brother Perses, to “put away all notions of violence” for “fish, and wild animals, and the flying birds” may “feed on each other, since there is no idea of justice among them,” but “to men [Zeus] gave justice,” which is the “best thing they have.”  Hesiod condemns both force and fraud: the grabbing of goods either by “force of hands” or by “cleverness of … tongue.”

Hesiod contrasts war and market competition as “two Strifes” with different natures: 

“There is one Strife who builds up evil war, and slaughter.

She is harsh; no man loves her ….

But the other one was born the elder daughter of black Night. …

she is far kinder.

She pushes the shiftless man to work, for all his laziness.

A man looks at his neighbor, who is rich:  then he too

wants work ….  Such Strife is a good friend to mortals.

Then potter is potter’s enemy, and craftsman is craftsman’s

rival; tramp is jealous of tramp, and singer of singer”.

In The Other Greeks, Victor Hanson notes that Hesiod presented an ideology of reward for honest toil in agriculture. Secure property rights gave the owners of small farms incentives to work hard. Successful farmers were able to expand their holdings. Hesiod’s views about the virtue of hard work were presumably shared by the owners of many small farms at the beginning of the polis period of ancient Greece.

Hanson argues that the owners of small farms had a strong impact on the development of democracy in ancient Athens. He notes that by the early 6^th century BCE Athens had free markets and “was struggling toward the formal political recognition of a true class of yeomanry, who owned their own plots and sought political representation equal to their economic success".

Most of these farmers were apparently hoplites (citizen soldiers) who made up nearly half the citizen population of the early poleis after having been incorporated by the Solon, a famous lawmaker, into the Athenian political system around 600 BCE. Hanson comments:

“An enormous social transformation had obviously taken place in Greece, nothing less than the creation of an entire class, which through sheer preponderance of numbers overwhelmed the aristocratic culture of Dark-Age Greece."

The Athenian democracy gave citizens considerable individual liberty as well as the right to participate in politics. According to Thucydides, the leading Athenian politician Pericles (c. 495-429 BCE) declared:

“The freedom which we enjoy in our government extends also to our ordinary life. There, far from exercising a jealous surveillance over each other, we do not feel called upon to be angry with our neighbour for doing what he likes”.

Writing later, Plato and Aristotle agreed with that assessment, but were critical of the individual liberty they saw exercised in Athens. Roderick Long suggests that Plato makes Athenian democracy sound like the panarchist ideal: there is “no compulsion to rule in this city, even if you are qualified to rule, or to be ruled if you do not want to be; or to be at war when the others are at war, or to keep the peace when the others are keeping the peace,” so that democracy constitutes not so much a single political system as a “supermarket of constitutions” where each person can “pick out whatever pleases him”. Aristotle suggested that according to the democratic conception, “freedom and equality consists in every one’s doing what they please,” so that “every one may live as he likes.”

Plato and Aristotle seem to have exaggerated the extent of liberty in Athens in order to argue against democracy.  In assessing the extent of liberty in ancient Athens it should also be remembered that many of residents were non-citizens or slaves.

An eminent  ancient historian also discussed freedom of speech as a political ideal. Herodotus (c. 484-425 BCE) puts into the mouth of Artabanos, advisor to Xerxes, a defense of the distinctively Athenian ideal of freedom of speech:

“O king, if opinions opposed to one another be not spoken, it is not possible to select the better in making the choice, but one must accept that which has been spoken”.

Did imposition of the death penalty on Socrates (399 BCE) for exercising freedom of speech conflict with that ideal? Chris Berg suggests that Socrates’ use of irony and rhetorical skill to induce people into questioning their beliefs would have been seen to be contrary to the purpose of Athenian speech freedoms. Socrates might have appeared to be deceitful because he was not forthright in expressing personal views. That interpretation of events is consistent with Plato’s account of the defence Socrates offered at his trial. Rather than defending his right to freedom of speech, Socrates asserts that he is honest and undeceitful.

Although the norms of liberty that existed in ancient Athens seem to have evolved without much conscious effort, they were not taken for granted. There was considerable discussion of the extent to which individual liberty was desirable, and the weight of intellectual opinion seems to have generally been more sceptical of the merits of liberty than it is today.

Where can we find answers to the most important questions about freedom and flourishing?

People who visit this blog sometimes ask for more signposts to help them find my answers to the most important questions about freedom and flourishing. In the past my response has been to suggest that they read my Kindle ebook, Free to Flourish, which is available for an extremely modest price. However, my thinking has moved on in some respects since that book was published in 2012. So, this post identifies what I see as the most important questions and provides some links to indicate where answers can be found.

1. What is the purpose of life? The answer that Aristotle gave around 350 BC sets us on the right track. Happiness (human flourishing) is the purpose of human existence. Individuals flourish as they actualize potentials, including the potential for self-direction, that are specific to the kinds of creatures that humans are. The best summary of my views on the nature of happiness and human flourishing is still to be found in Chapter 2 of Free to Flourish.
2. Is there an ethical proposition that is relevant to all aspects of our lives? I agree with the view of Douglas Den Uyl and Douglas Rasmussen in The Perfectionist Turn, that “the existential fact that we must make something of our lives” is of fundamental importance. Interpersonal relations are also important, but don’t enter all aspects of our lives. See: Does the I-You relation enter into every aspect of the moral life?
3. How can you become a better person? To bring some abstract philosophical ideas down to earth, I have considered how a hypothetical person attempting to make something of his life might answer if asked whether he is a good person. A central part of his answer is that becoming a good person is like playing cards well: “He says that rather than bemoaning the fact that you have not been dealt a better hand, it is better to maintain good humour and focus on how best to play the cards you have been dealt. You never think of cheating and you avoid playing with people who cheat. You like to win, but you participate mainly to enjoy the social interaction. Playing the game is also a learning experience. You learn how to perceive opportunities, develop strategies, cooperate with others, and to win and lose graciously. As you learn to play well you become a better person”. See: How can we know what we ought to do?
4. Should we be motivated by mutual benefit in our interactions with others?  Robert Sugden observes in The Community of Advantage that when individuals participate in market transactions it is possible for them to be motivated by mutual benefit. They may see virtue in voluntary transactions that enable people to get what they want by benefiting others, rather than purely personal benefit, or the potential to use proceeds for altruistic purposes. Sugden points out that being motivated by mutual benefit is consistent with Adam Smith’s famous observation that we do not rely on the benevolence of shopkeepers to provide us with the goods we need. The shop keepers don’t sacrifice their own interests to provide us with goods, but they may act with the intention of playing their part in mutually beneficial practices. See: Do you acknowledge a personal responsibility to seek mutual benefit?
5. Is human flourishing primarily about psychological health, capability or opportunity? In a post addressing that question argue that all three aspects of flourishing are relevant if we are considering the extent to which particular individuals – our relatives, friends and acquaintances - are flourishing. However, from a public policy perspective, attention should focus primarily on the opportunities available for people to live the lives they aspire to, because government policies impinge greatly – often negatively – on growth of opportunity. 
6. Why do you consider freedom to be integral to human flourishing? There are two reasons: a) Individual humans have potential for self-direction and cannot fully flourish unless they are free to manage their own lives and accept responsibility for their actions. As Douglas Rasmussen and Douglas Den Uyl point out, recognition of individual liberty is necessary to ensure that individuals can flourish in diverse ways without coming into conflict. Chapter 3 of Free to Flourish still provides a reasonable summary of my views. b) Good societies that provide conditions favourable to individual flourishing are characterised by individual freedom. As discussed in Chapter 6 of Free to Flourish, freedom provides the basis for peacefulness and individual opportunity, which in turn enable a greater degree of economic security to be sustained. As discussed in Chapter 7, economic progress – the growth of economic opportunities supporting individual flourishing – is attributable to advances in technology and innovations that were made possible by economic freedom and supporting beliefs, ideologies and social norms.
7. What is the greatest threat to the ongoing expansion of opportunities for individual flourishing in coming decades? In Free to Flourish I argued that the failure of democratic governments to cope with their expanding responsibilities poses the greatest threat to the ongoing expansion of opportunities for human flourishing in coming decades. I maintain that view.  It seems to me that, over the next 20 years or so, people in Western democracies are likely to suffer to a greater extent from the consequences of an explosion in public debt than from climate change. See: How can we compare climate change and public debt risks? Nevertheless, I acknowledge that climate change could possibly pose a serious threat to civilization and argue that we should not ignore the risk of catastrophe even if we think the most likely outcome is benign. I have argued that climate change policies should focus to a greater extent on choosing the lowest cost methods of reducing the risk of catastrophe. See: What is the appropriate discount rate to use in assessingclimate change mitigation policies?
8. Will it be possible to avert democratic failure, and if not, is there a basis to hope ongoing human flourishing will be possible? Since writing Free to Flourish I have become more pessimistic about the potential for citizens to unite to restore better norms of political behaviour in the western democracies. However, I now see a basis for hope that the faltering institutions of representative government could one day be replaced by superior institutions. Blockchain technology and smart contracts may have potential to enable people to act together to produce some public goods cooperatively without central government involvement. See: Where did I go wrong in writing about the greatest threat to human flourishing?

Are values opposed to virtues?

In an article recently published in “The Australian”, Peter Kurti, a senior research fellow at the Centre for Independent Studies, noted:

“Unease is growing in Australia that something has changed for the worse in our live-and-let-live culture”.

The context of his comment is the “opprobrium and venom” that dissent from “prevailing new orthodoxies” about gender and sexual orientation seems to attract. The author suggests this has contributed to “the sense that the common bonds of civility that helped to build mutual trust in our society are under strain”.

I concur with those sentiments. They are consistent with views recently expressed on this blog: Does Israel Folau deserve support from advocates of free speech?

However, the headline of Kurti’s article “Israel Folau: Moral compass all askew as virtue is eclipsed by values” seems to me to be codswallop. Unfortunately, the headline accurately reflects Kurti’s explanation for the fracturing of our culture in terms of what he describes as “the eclipse of virtue by values”.

It is difficult to see how values can be opposed to virtues in terms of common usage of those terms in discussions of ethics. The Concise Oxford defines the terms as follows:

Virtue: “moral excellence, uprightness, goodness”; “the seven cardinal virtues”.

Value: “one’s principles or standards, one’s judgement of what is valuable or important in life”.

Kurti makes values appear to be opposed to virtues by claiming that values “are simply emotional statements about personal beliefs, feelings or attitudes”. He claims that values “cannot be normative because it is impossible to erect any shared meaning on the foundation of something that is personal and subjective”.

Those claims are clearly incorrect. For example, when Friedrich Hayek writes about the “values of a free civilization” he is not referring merely to emotional statements about personal beliefs, feelings or attitudes. What Hayek and others have written about shared values is clearly closely related to norms of behaviour.

Kurti doesn’t seem to recognise the existence of shared values. His constructivist perspective, evident in use of the term “erect” when discussing the possibility of shared meaning, has apparently made it impossible for him to comprehend that the common values of an open and free society could evolve spontaneously as individuals pursue what is important in their lives.

Perhaps what Kurti was intending to convey is that the common bonds of civility are fracturing because people are increasingly adopting personal beliefs, feelings and attitudes that are inconsistent with common bonds of civility. So, why does he seek to discredit values language?

I was hoping that question might be answered by reading Kurti’s recently published CIS paper, entitled Cracking Up? Culture and the Displacement of Virtue. No such luck! In that paper, Gertrude Himmelfarb and Iain Benson are quoted as asserting that values language rejects the idea of shared moral goods, but they are no less wrong about that than Peter Kurti.

I agree with much of what Kurti writes about the importance of the traditional virtues. However, when Kurti refers to virtues he is referring only to the traditional virtues. I think that poses a problem for him. He claims “prevailing new orthodoxies” exist, so he must surely acknowledge that the people who subscribe to those new orthodoxies see political correctness as a virtue.

In my view it is probably an overstatement to claim that the new orthodoxies are “prevailing”. But it is impossible to deny that there has been a shift in what many people perceive to be virtuous that is inextricably linked to a shift in their values.

There is a more fundamental problem is asserting that cracks appearing in our live-and-let-live culture can be mended by appealing to the traditional virtues. The traditional virtues have been acknowledged for thousands of years, but our live-and-let-live culture has only recently evolved.  Freedom of religion has had a firm legal basis in only a few countries for only a couple of centuries. The idea that members of minority religions should not be discriminated against has been a widely shared value and accepted norm of behaviour for less than a century in most western countries, including Australia. Our live-and-let-live culture, with harmonious collaboration between people of different religions, ethnic backgrounds and gender in work and community organisations, has only been in existence for a few decades, despite the lip service paid to civility in earlier times. Live-and-let-live has been inclusive of LGBT people for an even shorter period.

The shared values underlying our live-and-let-live culture include freedom of expression, tolerance and politeness.  The norms of behaviour associated with these shared values enable people to obtain mutual benefit from working, playing sport and socializing with people whose attitudes and behaviours they disagree with, and in some instances may even consider to be immoral.

The main threat to our live-and-let-live culture comes from those who insist that to enhance social harmony people should exercise much greater restraint in what they say and publish to avoid the possibility of giving offence to members of the religious, ethnic, gender and LGBT groups pandered to by identity politics. This gives rise to the potential for a return to tribal values as members of an increasing number of individual groups abandon shared values and threaten social disharmony in order to redress perceived disadvantages or to obtain advantages over others. 

The most obvious and straight forward way to avoid a return to tribal values is for supporters of our live-and-let-live culture to make their views heard whenever the shared values of that culture come under threat from those who take offence unreasonably. A return to tribal values can be avoided if enough people of goodwill continue to support the rights of others to express views they disagree with.  

Do Australian building regulations promote safety, accessibility and livability of new dwellings?

A few months ago, I would have been astounded if someone told me that a building certifier in Australia could legally issue an occupation certificate with front path pedestrian access as shown in the photo above. In order to use the path, it was necessary for pedestrians to step over a concrete obstacle (14 cm on the driveway side and 23 cm on the house side). There was no way anyone could plausibly claim that the concrete obstacle was necessary for drainage, because water ran away from it toward the centre of the driveway.

With the benefit of hindsight, it is obvious that before buying a townhouse off the plan I had been lulled into a false sense of security by claims of building regulators that the Building Code of Australia (BCA) sets minimum standards for safety, health and amenity of buildings. I was not aware of the existence of the National Construction Code (NCC) at that time, but it wouldn’t have surprised me that it purports to provide “the minimum necessary requirements for safety and health; amenity and accessibility, and sustainability in design, construction, performance and livability of new buildings”.

I should have known better! I knew from the experience of many years working for governments that bureaucrats are no less prone to making extravagant claims than are people working in other occupations.

You might be thinking that even though it would be most unfortunate if someone was injured by tripping on the concrete obstacle, the existence of an occupation certificate, certifying that building regulation had been complied with, would protect the Owners Corporation against a compensation claim. That might be too sanguine a view. Legal information available from a reputable online source suggests that owners might not be fully covered by insurance if they could reasonably be expected to be aware of the issue and had not taken steps to address it.

The bigger issue of regulatory capture

In drawing attention to this pedestrian access issue, I am conscious that it is trivial by comparison with the building safety issues currently in the news associated with high-rise apartments in Sydney (Opal Tower and Mascot Towers). Michael Lambert, a former secretary of NSW Treasury, who reviewed building regulation for the New South Wales government and presented his report in 2015, has been quoted as saying that the issues associated with the Opal Tower “are likely just the tip of the iceberg”.

The Lambert report found “the incidence of building defects is significant” and “the incidence appears higher in NSW than elsewhere”. Lambert was not able to be more specific about incidence because “comprehensive information is not regularly collected on building defects”. He recommended that performance data be collected to enable the performance of the system to be assessed against clear objectives. In particular, he proposed a program of proactive investigations and audits of certifiers, linked to an education and training program for them. Lambert also recommended action to reduce the conflict between the accountability of certifiers for acting in the public interest and their commercial drivers for commercial success, including maintaining good relations with builders and owners/developers.

Michael Lambert has expressed disappointment that the recommendations of his report have not been more fully acted upon by the NSW government. It is not clear to what extent timely implementation of Lambert’s recommendations would have improved the quality of high-rise building in NSW, but the government’s failure to act more decisively on his proposals for incremental improvement seems to indicate that regulatory capture has become entrenched in this industry.

The theory of regulatory capture, advanced by the Nobel Prize winning economist, George Stigler, among others, refers to the tendency for regulatory systems created to act in the public interest, to instead advance the commercial or political concerns of special interest groups that dominate regulated industries. As it currently operates, the system of private certification seems to provide more protection to developers, builders, architects, engineers, and local government agencies that provide planning approval, than to home buyers.

Does more regulation provide the answer?

The knee jerk reaction of many people to quality control problems in the building industry is to urge that regulation be extended further and enforced more rigorously. However, even if determined political leaders can manage to steer some regulatory reform through the process of industry consultation, we need to face the reality that it would be prohibitively expensive for building regulation to be made much more than a ‘box ticking exercise’. Regulators can certify that certain things have been done, but that doesn’t ensure effective quality control. For example, regulators can certify that concrete has been poured to construct foundations, but it takes the resources of a building firm to control the quality of the concrete that is poured.

The main commercial incentives for firms to maintain effective quality control are to enhance their reputation in the market and to avoid litigation. Reform-minded political leaders should be seeking to identify how those market and legal incentives are impaired, and what corrective action could be taken.

Some readers might still be thinking that additional box ticking regulation would be an appropriate response to the specific question of safe residential access. I am wary of that approach because it could end up adding excessively to building costs and make homes less affordable.

Consider, for example, the guideline for dwelling access proposed by Livable Housing Australia:

“A safe continuous and step free path of travel from the street entrance and / or parking area to a dwelling entrance that is level.”

Complying with that condition would not have added much to the construction cost of our new townhouse, but in many instances a step free path would impose excessive costs. In a paper written over a decade ago, Alan Moran, pointed to evidence from government housing authorities - which commission a considerable part of the housing that is specifically geared towards the needs of people with disabilities - that the costs of the building are increased by at least 4% and up to 20% where houses are built fully compliant with the relevant Australian Standard.

The issue of liability

There are two overlapping aspects relating to the issue of liability for safe pedestrian access to residences. The first aspect is liability for compensation in the event of personal injury. My understanding is that the law sensibly provides liability on all parties involved to exercise reasonable care. I don’t know whether courts have held that developers and builders maintain some liability after residences have been sold. It would be a travesty, in my view, if they are able to hide behind an occupation certificate, when that does not certify that minimal safety standards have been met for pedestrian access.

The second issue of liability relates to the question of who should be liable for ensuring that reasonable expectations of home buyers are met in relation to safe pedestrian access. In thinking about this I have gone back to a paper written many years ago by Ted Sieper, an astute Australian economist who has been under-recognized because he eschewed academic norms to publish or perish. (Ted’s paper was entitled: Consumer protection – boon or bane?  It was presented to a C.I.S. conference held at Macquarie University in April 1978.) Ted argued that in considering the choice between the alternatives, caveat emptor – let the buyer beware – and caveat venditor – let the seller beware – law makers should compare the relative transactions costs that would be imposed on buyers and sellers. He noted: 

“while consumers with different safety requirements can discriminate cheaply among different products, producers can only with great difficulty discriminate among consumers”. 

(I am grateful to Greg Cutbush for suggesting that I look for Ted’s paper.)

I think Ted’s transactions cost point is highly relevant to the issue of safe pedestrian access. It seems reasonable to expect that that developers and builders would generally show some care to avoid compensation claims for personal injury. However, it is up to individual home buyers to shop around to obtain the standard of access safety they require.

With the benefit of hindsight, we should have insisted that an appropriate standard for safe residential access was written into the contract of sale before we agreed to buy. If the developer had been reluctant to agree to that provision, that would have set alarm bells ringing in our minds.

Regulators should stop making misleading claims!

There is irony in the fact that regulation to protect consumers aims to discourage misleading claims by vendors, but apparently does nothing to discourage building regulators from making misleading claims about the products they are selling.

Regulatory authorities should be required to renounce misleading claims they have made that the BCA and NCC provide minimum necessary standards for safety.  

If building regulators want to be helpful to home buyers, they should advise them to consult their lawyers to ensure that contracts for sale require developers to meet appropriate standards for safety and amenity.