18 September 2013

Purposivism and Road Rules: Free-Wheeling in Statutory Interpretation

     Patience is something you admire in the driver behind you, and scorn in the one ahead. 
 Mac McCleary
Part One – Motoring
Some readers may recall the slogan of a recent road safety campaign in New South Wales – Safe speeding: There is no such thing.
It is one of those irritating platitudes favoured in public safety campaigns that are either demonstrably false or boringly true; which it might be turning only on what is meant in this case by the term, speeding.
If by ‘speeding’ it is meant, driving at an unsafe speed, then the slogan is an extremely uninformative analytic truth, like all bachelors are unmarried men, or all grandmothers are mothers. If on the other hand by ‘speeding’ it is meant, driving at an unlawful speed, then the statement is clearly untrue.
It is just as obvious that the road authorities and police in NSW do mean it in the latter sense, and are thus propagating a blatant falsehood in a vain effort to constrain the behaviour of otherwise autonomous adults when in control of motor vehicles on public roads.
Why do I say the slogan is obviously false? Because almost everyone who drives exceeds the speed limits, indeed almost all of the time they are capable of doing so when on the road. The scale of law-breaking on most public roads is near universal and really only varies in frequency and as a matter of degree*.
Yet, in Australia at least, road accidents and fatalities as a proportion of vehicles on the road and distances travelled have plummeted in recent years.  Annual road deaths in Australia have fallen from a peak of about 3,800 in 1970 to approximately 1,600 in 2012. Over that period, road travel is reported to have increased by almost 150 per cent.
Now, there are many explanations for this dramatic drop – better cars, better secondary safety equipment, better roads, and better driver training – but none of the answers is reduced speed on the roads. Except outside schools when children are about, when passing fixed speed cameras, or in very heavily built-up areas (where the average speed is less than 30km/h), it is quite to the contrary.
Most of us drive more and faster when we can, with fewer and fewer accidents.
Ergo, the road safety claim is anodyne tripe: it manages to be both boring and false. So, what would some true statements about road safety and driving speed look like? Something like these:
·     Other things being equal, exceeding the speed limit increases the risk of traffic accidents
·     Speed is a factor in increasing the risk of collisions, and is exponentially related to their seriousness
·     You should reduce your speed when important variables – road or weather conditions, roadworthiness of the car, or driver affect – either limit the ability to avoid accidents or increase their likelihood; and
·     Exceeding the speed limit increases your risk of incurring expensive fines or other penalties.
As almost all drivers in Australia will know, only the last two of these four feature in road safety advertising. The first two true statements are far too insipid to be employed as slogans. Much easier to rely on risible nonsense like, there is no such thing as safe speeding.
This observation shines a small light on one example of the sort of behaviour we higher order primates engage in when confronted with complex risk matrix calculations: the law is just one part of the risk profile, and its enforcement just one other part.
It is important not to interpret this argument as a lassaiz faire or anarchic approach: the greater part of any risk calculation is the degree of probability of a serious injury or cost being incurred, and the relative scale of that cost or injury to ourselves, to those close to us, and (depending on our degree of altruism) to the wider community. As a rule, in our calculations legal implications come third after first, pain and injury, and next, financial considerations, all set off against actual or perceived benefits.
In fact, the exception is to find someone who calculates that driving at the speed limit or lower is the best option. These public nuisances are I suspect often unwitting literalists in statutory interpretation – timid, unimaginative little people who cannot conceive of exercising sufficient independent thought to override the dictates of authority and sense the point and purpose behind the law; even when there is a queue of cars behind them on a single lane, double-lined road.
As a matter of policy, these obdurate and self-absorbed tossers need to learn a lesson about not interfering unnecessarily in other people’s busy lives; whatever the road rules might be.

*   For concurrence with my view from motoring writer Toby Hagon, see: http://smh.drive.com.au/motor-news/why-every-driver-has-broken-the-speed-limit-20120204-1qygs.html
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Get a bicycle. You will not regret it if you live.

Mark Twain
Part Two – Cycling
When I say ‘calculations of risk’ I do not mean that this is a formal and explicit process made with each decision. We are constantly, implicitly and often barely consciously revising our risk assessments when driving cars. Just as we do in many other kinds of kinaesthetic endeavours – like cycling.
The remarkable thing about cycling in Sydney – reputedly one of the least bike-friendly cities in the world – is how little conflict, aggression and danger one actually experiences. Just imagine the number of cars, trucks, motorcycles, buses and pedestrians (not to mention wheelchairs, prams, skateboards and more) that traverse a rider’s path in an average two-hour ride: thousands.
Even in urban and suburban Sydney – with its hilly, twisting, poorly surfaced roads and intermittent bikepaths-to-nowhere – one can ride forty or fifty kilometres in that time.  And yet in a typical ride one might encounter the threat of only one or two life-ending accidents, and be confronted by perhaps another one or two seriously hostile fuckwits in charge of a motor vehicle.
Not at all bad a ratio, I reckon. Less than a thousand to one chance of a violent end each time you go for a ride. So, despite the anti-cycling campaigns in the tabloid media, maybe it is we cyclists – and not pedestrians and motorists – who are the real whingers in the road-use debate…But no.
Why? Because, in strictness, there is no such thing as a cyclist, any more than there is a shopper, a pedestrian, a motorist or a passenger. Just as one may figuratively be born to shop, you may love your car madly, enthuse over walking or prefer the place of passenger on a bus or train or plane. But none of this turns your identity into one of the above, in any philosophically meaningful sense of the word, identity.
This is because cyclist, passenger, pedestrian, motorist and shopper, and a host of terms with similar linguistic roles, are situational or functional predicates.
The statement, Ruth is a shopper, tells us what about Ruth? Only that she shops. But so does just about everyone on the planet, save for the pathologically shy, or those so poor they have nothing to shop with, or those sufficiently rich and indolent to have someone do it for them.
Saying Ruth is a shopper tells us little more about Ruth than saying she is a walker. Almost all of us walk to varying degrees. This just goes with being a bi-pedal hominid. Here in NSW there is a lobby group called the Pedestrian Council. There is also the NRMA – the National Roads and Motorists Association – and Bicycle NSW, which represents the interests of cyclists.
But hold on – didn’t I just say that there is no such thing as pedestrians, motorists and cyclists? So who do they represent? Simply, people in their capacity of doing certain things, that’s who. All of whom have rights to the use of public space and who all (or many) whinge when others, as individuals or as groups, do things in the public space they don’t appreciate. Like beat them through heavy traffic.
This is amply evidenced in a recent Sydney Morning Herald article concerning hostility shown to cyclists on Sydney roads#.  Just in case you were thinking this was an issue of concern restricted principally to Australia, let me introduce you to the views of the esteemed British actor, Nigel Havers, writing in the UK’s Mail Online on 13 June 2006:
Cycling used to be a genteel, reassuring activity. One thinks of Cambridge undergraduates languidly journeying through the narrow streets of the town with their scarves flapping in the wind, or modest delivery boys from the local grocery store pedalling away on their errands.
But today's pedal-pushers seem to be of a very different stamp – gentility and modesty have been replaced by aggression and arrogance. Brimming with hostility, utterly indifferent to those around them, they appear to think they are above the law.
Normal rules about red lights, pavements and one-way streets are treated as a matter of supreme indifference by this new army of Lycra-clad maniacs, whose every action demonstrates their contempt for pedestrians and motorists.
I am not against cycling per se. In fact, I used to cycle myself and still possess a bicycle. But I always made sure that I obeyed the rules of the road.
Oh dear, next he’ll be telling us he used to be a lefty until he got mugged by an immigrant; and now, while he has nothing against other races, he just wishes they would all go back to their own country.
But I digress – back to Nigel:
Just as they pay no tax, but use the roads freely, so cyclists are subject to absolutely no parking restrictions. They feel they have the right to chain up their wheels anywhere, to the railings of private property or even a parking meter, and could not care less if they obstruct pedestrians or annoy the property owner.
Bicycles are allowed to clog up the streets, pavements, pathways, even the entrances to homes. Why do we have show such tolerance to those who infringe the law?
When a cyclist bangs on the roof of my car or scrapes my mirror without even bothering to apologise, I sometimes wish for the good old days of Edwardian England, when young men would be sent to jail for swearing in the streets, causing a danger to the public or cycling without a light.
Out of his own mouth is he damned.
You see, as noted above, just about everyone breaks the law. Motorists certainly do. And so do pedestrians. So, no doubt, do shoppers and passengers and, well, whomever.
We all infract rules. Short of murder, rape, assault, robbery, destruction, swindling et al, your reaction to rule breakers just tells us which group or activity you are not a part of or which you do not support.
Who are the sorts of people who do not approve of cycling? Fat, lazy, peevish people on the whole, that’s who. People like novelist Howard Jacobson.
The Quickrelease TV website in September 2008 reported that Jacobsen, ‘a saggy-bottomed fellow if his hatred of healthy exercise is anything to go by’, opined at the Sunday Independent that cycling was one of those Olympic sports which had no use in the real world, yet then went on to complain about the legions of London cyclists who plague him:
Cycling is worse than futile, it is malevolent. Not a day goes by, unless I cower in my house and lock all the doors, when I am not put in danger by cyclists – whether it’s cyclists riding the pavement, jumping the lights, weaving between pedestrians and traffic, overtaking on the inside, chaining their bikes where they are bound to cause obstruction, abusing and on occasions threatening me for pointing out any of these infractions to them…blah, blah, blah, blah.
You get the picture.  But hold on, Howard hasn’t finished yet:
For holier-than-thou smugness, only a mother breastfeeding in a public space beats a cyclist. Both have been licensed by our society to believe they are forces for beneficence – true children of nature in a naughty mechanistic world – whereas the one only makes the planet more dangerous and the other only contributes to its overpopulation.
Olympic sports must have a use in the real world? Like discus? Only breastfeeding mothers are worse than cyclists? Why do people like Jacobson do it? Why can’t they help themselves in revealing their own deeply pathetic motivations?
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When I see an adult on a bicycle, I do not despair for the future of the human race. 
H.G. Wells

If, like me, you are a Purposivist in statutory interpretation, you understand that the current road rules are made principally for people as motorists and pedestrians. Despite the recent installation of traffic lights in bike lanes (usually at the bottom of steep hills), cycling, despite its venerable lineage, is not typically uppermost in the minds of legislators.
The growth in cycling as a pleasurable and health-giving activity in recent years has exposed the inadequacy of most current laws to reflect and accommodate their use in public places. Thus, those of us who cycle look at the underlying purpose of the law and decide, quite rightly, that the rule saying ‘do not proceed against a red traffic light’ is designed to stop cars hitting each other or pedestrians.
Cyclists, being on the whole clever and alert people, calculate that it is sensible and shrewd to beat the traffic and get up to speed by crossing the intersection before the flotilla of cars, trucks and buses sets off in the same direction. Disapproval of this is just cycling envy.
Pedestrians know this too, and look out for motor vehicles as they themselves dart across the road against the lights. Yet we do not have the Howards and the Nigels railing against this practice, because even lazy, cranky celebrities are themselves pedestrians. Even tabloid journalists occasionally walk.
As almost all people (including cyclists) are pedestrians and most are motorists, it is a relatively risk-free activity to accuse only cyclists of rule-breaking, as the claimant is rarely a cyclist themselves. Only the offence of hypocrisy is committed.
But imagine, pace anti-cyclists, if we insisted that prams, strollers, skateboards and wheelchairs were registered for use on public thoroughfares. After all, one can be injured on a footpath by a non-motorised vehicle. Still better, it has been suggested # (in a gently ironic way) that maybe pedestrians should be registered too – perhaps with a higher annual fee for joggers…
It’s all just too petulant and ridiculous. Public roads are there for all of us. And most adults have the capacity to make judgments about risk in using the public space.
So, get over it and get on yer bike.
# See the article by James Robertson and Jacob Saulwick in the Sydney Morning Herald of 31 August 2013, at http://news.drive.com.au/drive/roads-and-traffic/close-encounters-of-the-hostile-kind-20130830-2svyl.html


Nathan said...


Dr Enrico Brik said...

Yup, love it.