Tuesday, June 20, 2006

On the Serendipity of Enforcement of Regulations: Of Body Odor and Air Travel

No one likes to sit for long periods of time next to a fellow air passenger who has not bathed and whose pungency has reached extremes (by the usual standards of measurement in ordinary society). Odors are strong stimulants. Most airlines have regulations, sometimes vaguely written, sometimes more direct, empowering their employees to remove passengers for a variety of offenses, including body odor. But the rules are vague and enforcement spotty. The result is the appearance of arbitrariness that may contribute to an increasing lack of respect for the authority of the airlines and its agents.

Consider the case of the German tourist who was recently refused the right to board a flight from Los Angeles to Honolulu after the person in the seat next to him complained that the man "stank of high heaven" or something like that ("Le bajan de un avión en Hawaii por apestar," Qué!, June 20, 2006 at 28). Well, OK, I guess. The airline used its authority to make a decision about a particular person at a particular time. But the story becomes more interesting, at least as reported. Having been denied the right to board the flight to Honolulu, the German gentleman was required to "stew" for several hours at the Los Angeles airport, after which he was permitted to board (an even longer duration) flight to the East Coast for eventual return to Germany (which took even longer because he missed a connection). Same man, perhaps now considerably more pungent, first denied passage and now encouraged to fly on an even longer air travel journey without objection of any passenger or airline personnel.

Consider this from the perspective of the passenger: the aggregate conduct of the airlines appears arbitrary. One airline on one flight denies him passage, and yet another (and perhaps even the same carrier) on another flight permits him to fly. Of course we do not have all the details (perhaps he was made to wash between flights, but then why not fly to Honolulu on the next post-bath flight?; perhaps he flew home on different carriers with different rules; perhaps people on the eastbound flights had colds or stuffy noses). Still, the impression one might be left with is that one's right to travel is entirely in the hands of "front line" staff with the power to enforce or not enforce a set of badly communicated and ambiguously written rules, triggered sua sponte or on the complaint of a fellow traveler whose motives may not always be "odorless."

The consequences for both passenger and airline are not positive. First, this is the sort of system that might breed corruption--might it have been possible for the passenger to induce a different result with a little money? It also amplifies the dangers that the rules will be applied in a manner that mirrors the prejudices and presumptions of airline staff--African American passengers for years have complained about the much greater attention they tend to receive from staff than their similarly situated majority race traveling companions. Even in the absence of corruption, this sort of rule set-up may easily produce in the passenger an increasing sense that the rules are not fair, or fairly applied, or that there are no mechanisms readily available to discipline those charged with enforcing the rules. Where the rules are also difficult to access, and even more difficult to understand, it is easy to see how a passenger might begin to develop a sense that the rules themselves are unfair or arbitrary and not within his control. Certainly the passenger will feel disconnected from the rule and alienated from its enforcers. The rule, and perhaps even the institutional structures for its enforcement, become less legitimate in the eyes of the passenger. As a consequence, the passenger might be more inclined to subvert them in the future, or to permit others to subvert either the rule system or the institutions charged with their enforcement. While this may matter little when it comes to the enforcement of odor rules, the consequences may be more severe when the subversion leads to less attention in matters of security on board planes.

Thus, the tale of the smelly passenger has important institutional and legal implications, not so much for air travel, but for the way Americans increasingly relate to law and the institutions created to enforce them. As American law becomes more remote, byzantine, complex and difficult to access or understand, as American enforcement institutions lose traditional restraints in their relationship with the populations they serve (all in the name of excellent causes to be sure), the likelihood that positive law will become less authoritative, that corruption will become more prevalent, and that the population may become more willing to reject the system producing such a legal environment, becomes more real. At a time when security and global concerns make fairness, institutional integrity and legitimacy more important, Americans charged with the preservation of its political institutional legitimacy ought to have more a care about how they go about crafting and enforcing law in the United States. The American Republic's Founders were concerned with the twin evils of inefficiency and tyranny; the story of the smelly passenger reminds us of the ease with which even the most finely crafted set of institutions in any political system can slide toward both inefficiency and tyranny at once.

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