Nice Fence, Mr. Chesterton

More proof of the blind squirrel theory, Above the Law posts padawan Keith Lee’s small firm/solo practice column on a theory I’ve never heard of before, The Fallacy of Chesterton’s Fence.

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.

Put simply, don’t ever take a fence down until you know the reason why it was put up.

This is a life rule, but its application to law is abundantly clear and important.

Policies and procedures that are in place are likely there for a purpose – another attorney has set it up that way for a reason. The same is true with the contract. More than likely there is something there you don’t see. Something their experience and perspective provides that you can’t perceive. They are not looking at it on an individual basis, but how the process has been handled over the course of dozens of cases. The process is designed to address multiple problems that could occur along the way. What might seem inefficient to you could actually be the appropriate amount of due diligence required to make sure something is done right.

A constant source of ridicule and derision is that we do things because that’s “how we’ve always done them,” suggesting that the only reason behind prevailing practice is tradition and inertia.  It allows lawyers who think they’ve got a better way to dismiss the “old school” ways with a wave of their hand, because they see no point to it.  And that’s the key: they see no point to it, not that it has no point.

We have rules that get in the way of “the future,” and given the combination of hard times and massive technological change, many let their mind race toward what they perceive as innovation because they are certain they have a better way to do something. Put enough of these people in a room and they will change everything. Because nothing ever developed up to now has any reason to exist, at least as far as they can tell.

Chesterton’s Fence expresses a point that I’ve struggled to explain many times over.  Almost everything we do in the law came about for a reason, usually after dispute from all quarters and ultimate resolution based on the best ideas available at the time.  Some of it persists because it’s taken on a life of its own: why do we use archaic language in documents? Because a thousand opinions make the language clear beyond question, and we know with certainty what some peculiar phrase means.  Start changing up language and you introduce confusion into the terms, which rarely serves your client’s interests.

This doesn’t mean that nothing can ever be changed. Sometimes, the fence was built because of the conditions that existed at the time, and that condition no longer exists. It’s time to tear the fence down. Other times, the fence was built because a choice had to be made, whether to clarify our obligations to each other or to avoid the disaster of disparate choices clashing, and so we leave the fence alone because it settled an issue.

But when you don’t know why the fence is there, do not tear it down only to find that you’ve made a tragic error based on your limited understanding and appreciation of how the fence came to be built.  We assume that things exist for a reason, and until we know that reason, destroying things can wreak havoc. We do not wreak havoc for fun and novelty.

Having wasted too much of my life sitting on committees that accomplish nothing, I’ve come to gain a great appreciation of institutional memory.  That is, remembering the past so that its errors are not repeated.  If I were inclined to get a tattoo, the face of George Santayana would definitely be in the running. Or a butterfly, but I digress.

Smart young lawyers (and stupid older ones as well), filled with passion and vigor, want to remake the legal world to cure all the problems they see.  With their zeal, they rush to tear down fences they see only as blocking their path to Utopia, oblivious as to why that fence could possibly be there.  It seems so pointless to them. Knock it down!

There are fences whose utility has come and gone, that are ripe for demolition.  There are fences that were built as well as they could be at the time, but can now be built better. And there are fences that better be left alone or really bad things will happen. Knowing which fence is which before doing the damage is critical.

22 comments on “Nice Fence, Mr. Chesterton

  1. william doriss

    “Good fences make good neighbors.” (Robert Frost) Or bad neighbors! That is the question?
    Some people worry about fences. I worry about dementias. Now what does John Barleycorn have to say,
    pontificate about this v. important topic-subject?
    Chesterton’s Fence, is that something like the Ordinal Fallacy? Murphy’s Law? One thing is for sure: You cannot break the rules until such time as you understand the rules.
    Finally–I’m front-running John Barleycorn–rules are for gigrools. Fences are for demarcating property lines and keeping your livestock from wandering away, nothing more, nothing less. What is so hard ’bout that?

    1. John Barleycorn

      Our esteemed host puts it concisely once again:

      “…things will happen. Knowing which fence is which before doing the damage is critical.”

      So, don’t forget dearest william doris pondering if a finely stitched nylon straight jacket is a fence or something entirely else by design is not like putting a saddle on a frog.

      P.S. Thanks for the sensibilities expressed in your front running. Here is an unlinkable set of lyrics for you.

      When you read them (hopefully while watching a pirated copy of One Flew Over the Cuckoo’s Nest in your PJs in-between gigrooling game theory algorithms on bathroom breaks) think of the melody to “row, row, row your boat gently down the stream”, job security, and the dangers and adverse health consequences stress has on ones cholesterol while taking your profession too seriously:

      Rules, Rules more Rules…

      All we need are Rules.

      I didn’t make um I only Break um.

      We really don’t need no more, Stinking Rules.

      Simple enough and granted it is much more entertaining and downright challenging while while humming along, if one is tight rope walking a razor edged barb wire fence while modeling a straight jacket and pondering practical interpretations of the finer nuisances of freedom.

      But… That’s it for now. Back to the regularly scheduled programming before happy hour for today unfortunately.

  2. jakee308

    Isn’t the Law itself an example of a Chesterton Fence?

    Wasn’t It developed over centuries to provide for procedures and precedents to prevent disputes between people from regressing to their roots of anarchy, barbarism, savagery and chaos?

    1. SHG Post author

      Exactly. An excellent example of the point, as the law evolves in some areas and holds firm in others, where it is constantly subject to scrutiny (is there still a reason to leave up this fence) but hard to tear down. But it’s also an example of how slaves to precedent “remember the rubric and forget the rationale” when reviewing the law.

      1. John Neff

        Evolution is a good descriptive term if it means gradual development from a simple to a more complex form where some aspects of the law the rate of development is nearly imperceptible and for other is can be very rapid. Another advantage to using evolution it that it implies the development is not reversible.

        1. John Neff

          I should have made it clear that reversible would be going from a more complex to a simpler form. Chesterson’s fence and other reasons would prevent that.

          1. jahigginbotham

            Why does “evolution” preclude going to a simpler form? Is that a legal connotation? It doesn’t mean that in biology.

            1. SHG Post author

              I didn’t understand either. Things evolve as they evolve. Where we’ve over-managed a doctrine, evolution may well mean that it needs to be returned to its roots, to a simpler form. Complexity is not an inherent virtue, and we often “overthink” things to the point of creating havoc.

          2. John Neff

            I guess my assumption that backwards compatibility would lead to greater complexity was incorrect.

            1. SHG Post author

              I think you’re correct that the tendency is toward greater complexity (the “one more tweak and it will finally work perfectly” approach), but we can fight the tendency and may, on rare occasion, prevail.

    2. Ultraviolet admin

      I think the Chesterton Fence is a pretty good example of the Common Law’s defining features of using past decisions and situations. And there’s processes that stem from it like how most ethics laws tend to be in response to particular incidents.

      I’m a little more skeptical statutory law, as we see there may be a reason, but when we see the statues being put in there’s often a stated public need, and if we look hard a private series of reasons by the backers. And some times those public and private reasons clash to the detriment of the public good. A large company may be in favor of tougher regulatory law because they’re good at dealing with the regulations and it will hurt small competitors while having a good public reason of making the market safer. But the increase may not do anything effective for safety and just increase the product’s price and hurt consumers.

      Or for a better example, the FHA’s redlining practice had a public reason of saving money and preventing unnecessary risk, while there were clear private reasons that they didn’t think minorities should have access to the Federal back mortgages.

      Of course the opposite can happen, as a badly reasoned law can stumble into public good. The problem is so often the reasons are obscured. Often someone will lobby and say it’s for reason X, but they are lobbying for a side benefit. And if anyone asks later about the law, giving too much credit to folks just human as we are may be a mistake.

  3. Keith Lee

    I was pleased to discover Chesterton’s Fence just recently. As you note, it articulates the problem of changing things without fully understanding them in a clear and concise manner. I’m a lucky squirrel from time-to-time.

  4. Nigel Declan

    I’d never heard of this before, but it encapsulates perfectly so much. It strikes me that it applies almost perfectly to your post yesterday regarding the criticism of Delaware’s bona fide office rule as “arcane” by some, without much regard by these champions of VLO’s as to why the rule was implemented and what purpose it serves.

    If I wasn’t aware of the year in which it was written, I could easily have mistakenly assumed that Chesterton’s “more modern type of reformer” was a reference to certain individuals and groups today, whether they are unquestioning worshipers at the altar of technological progress or those imploring us of the need to “think of the children” by passing new laws to address any and every potential harm. These people see every fence in their path as an obstacle designed solely to pen them in, without bothering to consider whether the fence in question was in fact erected to keep something far worse out.

  5. Mirriam Seddiq

    I’m no fan of Chesterton, but this makes sense to me. It’s usually always good to understand what’s going on before you make decisions. It is knowing what is going on that will make people listen to you when you tell them why the fence needs to go.

  6. mirriam

    Sure. Sometimes the fence can stay and now and again you just need to hop over it. Or dig under it.

    I don’t think the grand apologist really does like me. But it’s nice for you to say so, seeing as how much I like to be liked.

  7. Gunnar

    This is what I used to tell my legal writing students, for when they couldn’t understand why the rules of court demand their motions be formatted a certain way: “Picture an old man, sitting at a typewriter.”
    He’s the guy who wrote the rules, and they made a lot of sense at the time.

    1. SHG Post author

      Or a scrivener with a quill. Some things are nothing more than tradition, like local formatting. On the other hand, they don’t hurt anyone and there’s a certain comfort in harmless tradition.

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