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September 5, 2005

The Death of Common Sense

(How law is suffocating America)
Philip K. Howard

This is an appropriately detailed and informative book written by an attorney who makes sense out of what has become necessary: legal change to reestablish what used to be the American way.

Early on he discusses some of the insane rules which have recently prevailed. Mother Theresa, for example, attempted to renovate an abandoned building to open a homeless shelter. New York’s rules required that improvement include an elevator. Cost prohibitive, the plans were abandoned and no homeless shelter exists. Thus does legal rigidity preclude the exercise of judgment.

He enumerates the myriad mandates for special-ed and calculates that gifted students languishing in the classroom are given about one cent for every eleven dollars dedicated to special-ed. We have built an educational system “obsessed with its potential failures to the detriment of its potential successes. . . . It’s just dumb!” (Anna Quindlen)

By attempting to establish a “perfectly certain and self-regulating authority,” which admits to no judgment or discretion, we have created our own Tower of Babel. No one, at anytime, in any situation, should be permitted to exercise judgment. God forbid! The law must provide firm answers. Over-emphasis on certainty has led us to intolerable inflexibility.

I noted in an earlier review of a Tammy Bruce book that modern law has become a game. By parsing words and stimulating intrigue it is bent to extremes by clever lawyers looking for loop-holes. The role of counsel is no longer the search for truth, but the advance of a client’s cause by ethical--or unethical--means.

The law, like science, requires judgment. Mistakes will be made. Endless scrutiny doesn’t make for better judgment. Indeed, the loss of perspective may make things worse.

Plato commented that good people do not require law to act responsibly, while bad people will always find a way around it. What we have created is a process which succeeds in humiliating honest people while providing cover for the bad ones. This was not the intent, but it is the result. It hasn’t become so because of venality, but become so it has. Process is now a religion of sorts, which fails to recognize that responsibility is not a group concept. Friedrich Hayek observed that sharing responsibility widely, like sharing property widely, is like having no responsibility at all. Law must not attempt to purge men’s souls. It cannot.

Legally prescribed rights are not an instant method of reform, but the perfect method for tearing society apart; especially so for rights discovered by lifting rocks to discover “penumbras.” The right to life is unassailable, as is the right to freedom of choice. Philosophy, logic and debate can, over time, create change and resolution, but when law attempts to accelerate this natural pace it drives wedges and prohibits discussion and progress, and Roe v. Wade has left us with a civil war.

Having forgotten “to consult our operating manuals” he recalls Madison: “in forming a gov’t of men over men, the greatest difficulty lies in this: . . . You must enable gov’t to control the governed; and in the next place oblige it to control itself.”

“Law is hailed as the instrument of freedom because without law . . . we would eventually come under the thumb of whoever gets the power. Too much law [we discover, has] a comparable effect.”

By exiling judgment modern law has evolved from a useful tool to a brainless tyrant, little better than Soviet apparatus. Creating rules without flexibility is a version of central planning. We must once more offer an intelligent choice between open alternatives. Principles must again be put in control. What is right and reasonable ought to dominate the conversation. Law must again become law. It has not protected us from stupidity and caprice, but made them dominant features of our society. Decision making must be transferred back from words on a page back to people on the spot. And the law mustn’t involve itself in our daily affairs.

In our age of precision machinery, sophisticated computers, incredible medical techniques, and space exploration, it is not easy to accept the imperfections and asymmetries of human nature. Still, conquering human nature was not the idea of our founding fathers, and ought not now to be our goal. “Avoiding coercion by making law into a detailed manual only assures another form of coercion.”
Law cannot save us from ourselves. Energy and resourcefulness are what’s great about America . . . not acres of legal cubicles. Let us again use common sense.

Posted by respeto at September 5, 2005 12:14 PM