Civil Noncompliance


As a piano technician I come across many unusual requests, but none so bizarre as one I received some time ago from a man whom I’ll call Mr. Green. Could I, he asked, strip the ivory from the keys of a Steinway grand piano?

I was appalled. Applying ivory to piano keys is a fine art. The ivory on each key is two separate pieces that have been color matched, cut, and glued together so carefully that there is no visible seam, then clamped exactly over a special wafer of cloth impregnated with white pigment that gives the translucent ivory a white, lustrous hue. To ask me to undo this fine craftsmanship was preposterous. It would be like asking me to slash the Mona Lisa or blow up Buddhist statues in Afghanistan. I asked Mr. Green why he wanted me to perform this sacrilege.

His answer was the law demanded it. After searching all over North America, Green had found precisely the right piano for his concert pianist wife. It was located in Canada’s province of British Columbia. As he made arrangements to have it shipped to his home in Connecticut, he learned that the piano would not be allowed into the United States because the ivory of its keys is prohibited by a law that bans the importation of ivory. Hence the need to remove the ivory from the keys.

“That’s ridiculous,” I said. “The piano was made in 1970, twenty years before the ban came into effect. Surely there is an exception for things made before the ban was adopted?”

“I can’t find out about that, it’s really crazy,” he sputtered. “I’ve called and called. I’m going out of my mind, I’m not getting any sleep. It’s a nightmare.”

Unable to get any straight or useful answer from U.S. Customs, he had retained a customs broker, who wasn’t able to find a way around the problem, either. The seller of the piano had, for his part, contacted the U.S. Fish and Wildlife Service, which supposedly administers the ban, and had received only a vague and equivocal response. If there was a way of applying for an exception, it was buried so deep in the bowels of bureaucracy as to be inaccessible to human beings. At his wit’s end, Green decided to have the ivory stripped off the keys, ship the piano to Connecticut, and then have the keys recovered with plastic.

The Death of Common Sense

The problem Mr. Green faced is familiar. The accumulated weight of regulation today is so great that we bump into its inane and counterproductive demands all the time. Author Phillip Howard focused on this problem in his 1995 book, The Death of Common Sense: How Law is Suffocating America. “Modern law,” he says, “has not protected us from stupidity and caprice, but has made stupidity and caprice dominant features of our society.” His book surveys the mountain of regulations that “crushes our goals and deadens our spirits.”

To ask me to undo this fine craftsmanship was preposterous, like asking someone to slash the Mona Lisa or blow up Buddhist statues in Afghanistan.

Social scientists have also noticed the issue. Their research into the many ways that laws go awry has prompted them to formulate the “Law of Unintended Consequences.” This generalization, first popularized by sociologist Robert Merton in 1936, ranks along with death and taxes as one of the few certainties of social life. It holds that every government effort to improve life has unexpected and harmful side effects. In many cases, these harmful effects are so severe as to defeat the original purpose of the law.

The ban on ivory is a good illustration of this dysfunctional pattern. From a distance, the problem seemed simple. Poachers kill elephants for their tusks, thus reducing the numbers of elephants — and, in certain areas, possibly driving them to extinction. The theory was that a law against the importation of ivory would deprive poachers of their market, and the killing of elephants would stop.

Alas, the world is always more complicated than it seems to those who make laws. Now, poaching and overhunting of elephants still takes place, but thanks to scarcity the practice is more lucrative than ever. Before the ban, ivory was selling for $200 a kilo; now the black market price is over $2,000.

But this is only part of the problem. Some African countries have too many elephants. These beasts overgraze and destroy the habitat in wildlife preserves, threatening plant and animal species with extinction. In these cases, wildlife experts recommend culling elephants to reduce their numbers. In other places where elephant population is too high, these animals destroy crops of poor farmers. This problem is managed by cooperative arrangements that cull some elephants, and reimburse farmers for crop losses with money gained from selling tusks of the culled animals. A ban on ivory undercuts these arrangements and thus encourages farmers to kill them secretly.

Before the ban, ivory was selling for $200 a kilo; now the black market price is over $2,000.

Another point that the ban does not take into account is that ivory has positive, non-substitutable human uses. Piano and organ keys are a case in point. Plastic piano key tops do not give the same feel as ivory. When dry, they are too “sticky,” not allowing the fingertips to slide from note to note. When wet with perspiration, plastic key tops become too slippery. A total ban on ivory, then, means that musical performances at the highest level are compromised.

These are just a few of the complexities that the law against the importation of ivory overlooks. Distant publics and shallow-minded legislators suppose that such a law is like a meat axe, and that one swing will fix, simply and finally, the problem they have in mind. But in its actual operation, it is more like a grenade, doing damage in many different directions that no one could predict when it is first put into effect. That the ivory ban would require the sacrilege of stripping ivory from the keys of a Steinway grand piano illustrates the kind of unanticipated, harmful side effects that come with every law.

Democratic Dead End

How do we fix this problem of laws that make a mockery of common sense? One answer might be to use the democratic process. That’s what the civics books recommend: if you don’t like a law, then you write a letter to the editor, or to your congressman. This advice might have made sense in an age of small government and few laws, but it is painfully unrealistic today. The mass of regulations now in place represents the accumulation of many decades of lobbying, coalition-building, administrative interpretation, and judicial precedent. The idea that an individual could even be noticed in this quagmire, let alone clear it up, is fanciful.

Furthermore, the democratic process gave us these laws. Politicians promised them as the solutions to problems. Sure, they ignored the harmful side effects, but this is the way the system works. The modern politician’s goal is not to make things better. It is to display good intentions, to gather kudos from a shallow media and curry favor with single-minded pressure groups. Politics has become theatre, where the politician-actor struts upon the stage playing the hero, and the audience applauds his performance.

The modern politician’s goal is not to make things better. It is to display good intentions, and to curry favor with single-minded pressure groups.

Thus, within democratic politics, there is no way of stemming the tide of shortsighted laws. If you go to the legislators and point out that a certain law has backfired, they are not going to repeal it. Lawmakers passed the ban on ivory in order to look good. They are hardly going to agree to offend the environmental pressure groups by reversing themselves (Headline: “Senator Endorses Slaying of Elephants”). If the politicians do anything, they will pass additional laws to try to fix the problems they caused with the first law — giving rise, of course, to more unintended consequences.

In the Tradition of Thoreau, Gandhi, and King

Is there nothing that we can do to counteract foolish and destructive laws?

In 1849, Henry David Thoreau elaborated the principle of civil disobedience, the idea that it is right for an individual to disobey an unjust law. Though a familiar concept for abolitionists and others who objected to government power on religious grounds, Thoreau's work proved revolutionary in separating civil disobedience from specific religious traditions, allowing men to appeal not to any higher power, but to the reason of his fellow man. Following in Thoreau’s footsteps, Mohandas Gandhi developed civil disobedience into a method of political reform. With his mass protests in South Africa and India, Gandhi showed the world that law need not be treated as a god. When laws contradict our sense of morality and decency, it is right to disobey them. Later, Martin Luther King, another of Thoreau’s disciples, grounded the American civil rights movement on the same principle.

Civil disobedience points the way to a tactics of reform, but it will not itself address the problem of overregulation. Civil disobedience is a tactic of mass protest. It assumes a single, objectionable law so prominent that large numbers of people can be marshaled to demonstrate in the streets against it.

The problem we face with law in the modern state is that there are tens of thousands of silly regulations, and no single one merits a high-profile campaign. To take Mr. Green’s case, imagine the difficulties we would have in trying to attract crowds, and the media, to a “piano-importing protest” at a U.S. customs check point on the Canadian border. To resist and counter the regulatory regime, we need a small-scale, convenient strategy that can be applied in thousands, even millions, of instances. I call it “civil noncompliance.” Its aim is to counter a destructive law by finding a quiet way to evade it. This was what I used to counter the unjust effect of the law on ivory importation affecting Mr. Green.

To resist and counter the regulatory regime, we need a small-scale, convenient strategy that can be applied in thousands, even millions, of instances.

My sister and I drove to Canada for a round of golf. While she played, I visited the home of the seller, took the piano apart, removed the keys and put them in a cardboard box which I put in the back of my station wagon. Then I put the piano back together, ready to be shipped to Mr. Green in the ordinary way, sans ivory. I picked up my sister at the golf course, and drove to the border.

The U.S. customs agent was friendly. What was the purpose of our visit to Canada?

“We played golf.”

“How did you do?”

I said, “Don’t ask!”

He laughed and waved us through. The next day I shipped the keys to Mr. Green, to be put back in the piano when it arrived. Travesty avoided!

The Polite Reform

By calling the tactic “civil” noncompliance, I mean to emphasize the element of social responsibility. I do not advocate disobeying laws just because one can get away with it. One must have a helpful, socially constructive purpose in mind. For example, you shouldn’t run red lights as a general practice. Even if there were no policemen to notice it, that behavior would be both rude and dangerous; that is, uncivil. But if you were driving an injured child to the emergency room late at night when no other cars were about, driving through the red light would be an act of civil noncompliance.

By using the term “noncompliance,” I mean to emphasize that this is a polite disobedience. It is not confrontational, and certainly never violent. Civil noncompliance does not presume a battle with government officials enforcing the law. The idea is to be unnoticed by them, or to receive their tacit support in avoiding a regulation’s requirements. The idea that officials may be willing to “look the other way” is an unusual point, for we are accustomed to portray bureaucrats as rigid, power-mad enforcers who enjoy making life difficult for ordinary people. There are undoubtedly some in this category, but most government employees are ordinary human beings who want to be friendly and helpful.

Government officials often see that regulations are irrational and harmful. Out of sympathy, or embarrassment, they can become allies.

I’m sure readers can cite cases of officials who helped them evade some destructive regulation. My favorite episode took place years ago in Peru when, as a student, I was applying for a residency visa. After filling out the form, I went to the cashier, who said the charge would be $1,800! Of course I couldn’t pay this astronomical fee (which had been set with oil company executives in mind). I was directed to the head of the agency. After hearing my plight, he looked at my form.

“Since you’re not 21 years old, you only have to pay the fee for a minor of age, which is $25.”

“Oh, but I’m afraid I’m over 21,” I replied. “My birthday was—”

“You don’t understand,” he said firmly. “Look here,” he tapped his finger on the form. “See, you’re not 21.”

I finally got it through my thick skull that he was trying to help me. “Oh, yes. I see. Right! Thank you!”

He called over to the cashier and told her, “Es menor de edad.”

She nodded and told me the charge was $25.

Government officials often see that regulations are irrational and harmful. Out of sympathy, or embarrassment, they can become allies in the tactics of civil noncompliance. In fact, sometimes they can be the leaders. Take the case of wolves in Idaho. The state’s environmentalists, hunters, and ranchers had worked out a modus vivendi for dealing with wolves, a system that involved compensation for ranchers who lose stock to wolves, and some hunting to cull the wolf population. This system ran afoul of the federal courts and the Fish and Wildlife Service, which in 2010 banned wolf hunting in Idaho. That decision no doubt made urban treehuggers happy, but it thoroughly disgusted Idahoans. In response, Idaho governor Butch Otter practiced civil non-compliance: he ordered state officials to stop investigating wolf kills.

A Quiet Revolution

Civil noncompliance is more than a strategy for getting by in an age of over-regulation. It affords an avenue for remaking social governance along new lines.

The political approach to addressing problems and managing social life is running out of steam. Generations ago, idealists believed that politics held the key to building a new society. Candidates, parties, and revolutionary movements — from communists to progressives, fascists to democratic socialists — were energized by the conviction that control of government would give them the power to set the country on the path to their dreamed-of Utopia.

No informed person now looks at politics in this way. Government today is more like an ineffectual goo, a spreading blob of noise and hypocrisy that can be neither directed nor reformed. Journalist Jonathan Rauch made this point in his 1994 book Demosclerosis (revised and expanded in1999 as Government’s End; Why Washington Stopped Working): “Government has become what it is and will remain: a large, incoherent, often incomprehensible mass that is solicitous of its clients, but impervious to any broad, coherent program of reform.”

It is also clear that the system cannot be overthrown. At bottom, the public wants big government. Yes, most people are aware that government fails miserably time after time, and they realize that most of the politicians who make the laws are shortsighted and hypocritical (when not downright corrupt). Nevertheless, the public clings to government as an object of worship. Government fills the human longing to believe in a higher power that cares for us, a God-like force that can answer our prayers in troubled times. Government also fills the need for heroes to worship, for famous figures the public can ooh and aah over. Finally, politics provides the excitement of competition for a nation of bored, media-hungry couch potatoes. To get an idea how difficult it would be to do away with big government, imagine trying to abolish God, Santa Claus, and the Super Bowl all at once.

We will have the show of politics, then. We will have candidates promising, lawmakers denouncing, and pressure groups nagging. But as civil noncompliance is increasingly practiced, this posturing will have less effect on the real world. The end point — Utopia, if you will — would be a society where politicians provide entertainment with their posturing, passing laws that promise this and prohibit that. Meanwhile citizens quietly ignore these laws in their daily lives and do what is right and helpful.

Such sensible times may yet be far off. But as I drove away from the customs checkpoint with those ivory piano keys rattling in the back of my car, I thought, I have seen the future, and it works!

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