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Now available thanks to Shawn P. Wilbur at Out of the Libertarian Labyrinth:

WHAT IS THE USE OF A BUILDING LAW?

By John Beverley Robinson.

TO impugn the utility of any law is just now a delicate and thankless task. The blind deference that in the past was displayed to ecclesiastical rules, has in our day, lacking better things to worship, been transferred to the civil law. Our State-directed schools, as was inevitable, have become the nurseries of political superstitions, which display themselves in our Fourth-of-July self-gratulations and in the total unconsciousness, in ordinary minds, that anything better than our political arrangements can by any possibility evolve from present conditions. To these, there is no higher test of right than the vote of a legislature. That the majority can do no wrong, is as firmly grounded in their faith as was in the mediaeval mind the doctrine that the king can do no wrong. With them, to obey the law is the chief virtue. They have lost the sense of virtue that demands disobedience to law, where the instinctive sentiment of justice is not satisfied.

Yet a few are beginning to ask: What is the limit, in reason, to this power of the majority? Is it true that the majority has a right to force us—the minority—to anything it may please? If not, what is the limit to its authority? And the answer comes from the chief of the philosophers of recent years,—with all his faults, the prophet of the future, Herbert Spencer:

“‘No human laws are of any validity if contrary to the law of nature; and such of them as are valid, derive all their force and all their authority mediately or immediately from this original.’ Thus writes Blackstone, to whom let all honor be given for having so far outseen the ideas of his time; and indeed we may say of our time.

“A good antidote, this, for those political superstitions which so widely prevail. A good check upon that sentiment of power-worship which still misleads us by magnifying the prerogatives of constitutional governments as it once did those of monarchs. Let men learn that a legislature is not ‘our God upon earth,’ though, by the authority they ascribe to it and the things they expect from it, they would seem to think it is. Let them learn rather that it is an institution serving a purely temporary purpose, whose power, when not stolen, is at the best borrowed.” (Social Statics, p. 229.)

After a page or two devoted to pointing out the unavoidable final abolition of government, and the contradictions and absurdities involved in its present temporary existence, he continues:

“Of the political superstitions lately alluded to, none is so universally diffused as the notion that majorities are omnipotent. Under the impression that the preservation of order will ever require power to be wielded by some party, the moral sense of our time feels that such power cannot rightly be conferred on any but the largest moiety of society.

“It interprets literally the saying that the voice of the people is the voice of God,’ and transferring to the one the sacredness attached to the other, it concludes that from the will of the people, that is of the majority, there can be no appeal. Yet this belief is entirely erroneous.”

It is not my purpose to criticise present laws; but rather to deny the right of anybody,—of any majority, to undertake the control of the details of construction, or indeed to enforce any requirements, save possibly the barest and simplest for the avoidance of what manifestly threatens impending danger. Most cities have their building laws, and have suffered the ill effects of such short-sighted legislation. The subject presented for review is, therefore, so wide in its range that the limits of a magazine article require me to confine my observations to some one locality. Let us then note some of the points in the New York building law which are open to criticism.

The opening paragraphs lay down a series of rules for the various thicknesses of walls, which are, to say the least, inflexible and excessive. Moreover, they rarely touch the really critical points at all: the width of the piers between the openings. Provided your wall is as thick as the law requires, the amount of solid may be attenuated in the other direction without exciting comment. To substitute skilful arrangement for dead weight of masonry is sternly repressed by the provisions that hollow walls, or walls built with buttresses, must have the same amount of materials as straight walls; reducing those who wish to save material to the alternative of perforating the wall with many flues, or of filling the interior of the wall with sand, as one enterprising builder did.

Take again the requirement of bondstones, as they are called, in piers of a certain size, although the weight of opinion is that the pier is weakened rather than strengthened by the presence of bondstones. In the past the law required the use of bondstones in walls as well as in piers; and in old buildings strings of bondstones may be seen, serving no purpose but to render the wall less homogenous and more liable to crack at that point. This provision, with others requiring the use of bluestone, was long retained by the power of thebluestone dealers. Previous to that the law recognized and permitted the use of bond timbers in walls, a practice which has fallen into disuse from its inherent viciousness, but without discountenance while it continued from the law.

So, still, the custom of veneering the fronts of buildings with a thin scale of stone is recognized by the law of to-day, and the method for doing so is laid down simply confirming the usual practice; but the only method that can be called constructive, that by which the stone facing is bonded into and made a part of the wall, the devisers of the law seem never to have heard of.

One of the delusions of the law is the demand that all iron work shall be tested. What more reasonable, thinks the ordinary citizen, when cast-iron is known to be often affected by flaws than to make a law that it shall be tested? While we are about it, let us extend the law to cover the testing of wrought iron, too. Actually what does it amount to? There is not a machine on earth, nor is it practicable to apply a load, that will test a large iron girder or column, scarcely even a small one. The only testing machine used by the inspector is a small piece of chalk, wherewith, having calculated the strength by an unintelligible formula, he chalks the lintel or beam in question.

Many provisions of the law are simply superfluous, or related to matters which no inspector could control without being on the spot all the time. Among the first is the amusingly solemn paragraph to the effect that all floor beams shall be suited to the weight they have to sustain. In practice such a loose provision gives opportunity for tyranny and corruption. Even where these do not occur the strength required will depend upon the affability of the superintendent, perhaps upon the Welsh rarebit he had for supper.

The laying down of minute proportions of lime and cement in mortar is equally deceptive. Nobody can tell but in the most general way whether such instructions are complied with or not, unless he watches every shovelful that is mixed. As for the prescription of quality it is almost as useless. One contractor that I happen to know of kept a load or two of very good sand in front of the building, much to the gratification of the inspector, while the work was built with the most indescribably bad mixture of dust and vegetable mould, openly used for mortar in a pen at the rear of the lot.

Probably the crowning absurdity of the law is that part which orders a brick wall to be built around all elevators. Here again nothing could seem more reasonable to the people who are not intimately acquainted with details. A brick elevator shaft is supposed to act as a chimney and to conduct fire and smoke harmlessly out, through the skylight on top. Really, the necessary openings on each story, in spite of alleged fireproof doors, serve to conduct the flames, fanned to furnace heat by the draft of the brick-shaft, to each story of the building at the same moment. So great is the heat generated by the chimney-like shaft, that quite recently a fire was communicated to adjoining premises through an apparently perfect brick wall. A series of hatchways offers no such advantage to the fire, but permits it to be confined, for a while at least, to the story where it starts. Especially ridiculous is this demand for a brick wall about elevators when no such wall is required for hoistways. That is to say, you may hoist a barrel through trap doors by hooking it on the end of a rope; but if you hook a platform on the rope, and put the barrel on the platform you must build a brick shaft to hoist it in. I do not insist much upon such criticisms. What I do insist upon is the utter impossibility of framing any statute that can cover the multitudinous, complicated, various and ever-changing conditions of building operations.

Few people have any conception of the inventiveness that is required in all mechanical operations. From the village carpenter to the engineer, all are occupied with continually new problems, for which new solutions must be found.

For the architect not least is this inventiveness required. Indeed, more than most technical workers the architect must be an inventor, because he is called upon to solve, not only problems of construction, but continually to devise new designs to be constructed, of which the value is largely that they are new. The fundamental objection to such statute law is, that it hinders this process of invention and thereby necessarily retards progress in the art of building. The more perfect the law the more perfectly does it accomplish this result. An ideally perfect law would at once put an end to all progress, and render the possession of intellect an injury rather than an advantage to architects. The most that a law can do is to perpetuate the best known existing methods. In a few years of normal progress these would become obsolete. To give discretion to the authorities is virtually to place legislation in the hands of individuals; not to give them discretion makes it more and more difficult to modify the law. Ideal perfection has fortunately not yet been attained in the general building law. In the matter of plumbing, which is in charge of the Board of Health, with its autocratic powers, the regulations may be regarded as ideal. It is a mere waste of time nowadays for an architect to reflect upon the best method of doing the plumbing of a building; it is for him to ask humbly what the authorities will deign to prescribe. The law, as it stands, requires extravagantly costly plumbing, and has the earnest support of all of the ablest and most conscientious plumbers.

The converse side of this disparagement of high capacity and discouragement of new ideas, which the law necessarily involves, is the direct support to incapacity which the law affords. Many a man practices architecture on the strength of his permit from the Department of Buildings, when, not to speak of his client’s lack of confidence in him, his own knowledge of his weakness and fear of taking the responsibility involved would deter him from doing so, were it not for the false assurance conveyed to one and the false confidence to the other by the official seal. This function of bolstering up those whom natural selection would weed out, is sufficient in itself to condemn the law.

A very extraordinary instance of this process of the restriction by law of the competent and fortification by law of the incompetent is going on in Chicago. They have been building there a very remarkable series of buildings of excessive height, eighteen or twenty stories. These buildings have been constructed on an entirely new principle: a steel frame with a mere skin of masonry. They are put up with extraordinary rapidity and at comparatively small proportionate cost. In the grade of engineering ability required they are on a par with the big bridges and tunnels that engineers do. It would seem that the men who have thus successfully struck out a new line and successfully completed such buildings should be competent to do more of the same thing. Yet a proposal is on foot for the governmental regulation of such buildings. Especially does this seem grotesque when it is remembered that of all the large buildings in Chicago all are successful but the Government building recently completed: that is reported to be settling continuously and disastrously in spite of the millions lavished upon it.

To turn for a moment to the frequently advanced criticism, not only of the building laws, but of the excise and many other laws that attempt to control actions which mankind does not generally rank as criminal,—the fostering of underhand evasion and corruption. It would be possible for any one who was interested in doing so to collect a very startling list of the deliberate violations of the building law that occur every day.

It is a delicate matter with most people to charge evasion of the building law. As for myself, I regard such evasion as a virtue, and a charge to that effect from me is an encomium. Apart from proof—proof I cannot offer; I am not the one to tell tales out of school—it is an inevitable inference that evasion must occur, whether accompanied by corruption or not. In point of fact it occurs in both ways. To obtain a permit and to build a building in accordance with it, are two very different matters; and it is usually far easier to make any required concessions to get a permit, and then arrange to build the building as you please afterward, than to delay matters by trying to get a permit in the first place for every little thing you want to do. Corruption exists, but they who know the ropes rarely find it necessary to resort to it; besides its cost is to be avoided if possible.

At the bottom, we must dwell upon the fact that the popular opinion upon which the building law is based, is a mistaken opinion. This opinion is that people will not build well unless they are compelled to. The truth is that, while building laws impede progress, they do not advance the customary grade of work a single degree. It is the customary standard of work that is always made into law. If it were not customary it could not be enforced and is not enforced. What is customary and generally recognized as safe will be carried out as well without the aid of a law.

The old common law—the unwritten law of public opinion— which every transgression makes self-evident, and which all people instinctively respect and obey, is all-sufficient for all cases. Every attempt to make a statute law that will fit the ever-changing conditions is, in the nature of things, an impossibility.

“But why cite individual cases? * * * * What is the statute-book but a record of such unhappy guesses? or history but a narrative of their unsuccessful issues? And what forwarder are we now? Is not our government as busy still as though the work of law-making commenced but yesterday? Has it made any apparent progress towards a final settlements of social arrangements? Does it not rather each year entangle itself still further in the web of legislation, confounding the already heterogeneous mass of enactments into still greater confusion? Nearly every parliamentary proceeding is a tacit confession of incompetency. There is scarcely a bill introduced but is entitled ‘An Act to amend an Act.’ The ‘Whereas’ of almost every preamble heralds an account of the miscarriage of previous legislation. Alteration, explanation and repeal, form the staple employment of every session. All our great agitations are for the abolition of institutions purporting to be for the public good. The history of one scheme is the history of all. First comes enactment, then probation, then failure; next an amendment and another failure; and, after many alternate tinkerings and abortive trials, arrives at length repeal, followed by the substitution of some fresh plan, doomed to run the same course, and share a like fate.” {Social Statics, p. 21.)

“‘It is a gross delusion to believe in the sovereign power of political machinery,’ says M. Guizot. True: and it is not only a gross delusion, but a very dangerous one. Give a child exaggerated notions of its parent’s power, and it will by-and-by cry for the moon. Let a people believe in government-omnipotence, and they will be pretty certain to get up revolutions to achieve impossibilities. Between their exorbitant ideas of what the state ought to do for them on the one side, and its miserable performances on the other, there will surely be generated feelings extremely inimical to social order—feelings which, by adding to the dissatisfaction otherwise produced, may occasion outbreaks that would not else have occurred.” (Social Statics, p. 318.)

What, then, is the use of the Building Law? Beginning with a general laying down of a few important points, and backed in these points by public opinion, it has grown to be a large mass of minute rules with which public opinion has no acquaintance and no sympathy. From a handful of persons charged with enforcing the law the bureau has grown now to a hundred. Still the cry is for more laws, more and more minute and exacting regulations, more extravagant spending of other people’s money in costly construction. With each intensification of the law the demand is for more inspectors to carry it out, or at least to collect pay for carrying it out. The law has become a political engine. Its offices are valuable considerations. The power which the law created reacts to perpetuate and increase the law, for with every increase of the law comes an increase of power to the political party that has the administration of it. The use of the Building Law is to help the politicians.

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SOURCE: Engineering Magazine. I, 5 (August, 1891) 656-662.

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photo by Nathan Callahan.

Read the whole thing at Out of the Libertarian Labyrinth.