Curmudgeonalia
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June 15, 2011

Life Without Lawyers

Liberating Americans from Too Much Law
Philip K. Howard - ISBN - 9780393338034

This is Howard's third book, and it is dynamite; a rather liberal lawyer, he is articulate, smart, rational and wise--something not commonly found in liberal or legal circles. This treatise reflects, above all, his common sense. (He has previously written two marvelous books: The Death of Common Sense - 9780446672283 and The Collapse of the Common Good - 9780345438713.)

"Civil libertarians are vigilant to keep government from abusing its authority. But freedom should also include the joy of spontaneity, the power of personal conviction, and the authority to use common sense--for example, to maintain order in the classroom, and to interact honestly with a patient or a co-worker." And with numerous other examples and coherent discussion he expands upon the disaster wrought, however unintentionally, by the contempt for authority and the worship of individualism introduced in the 60s in combination with the advent of the much needed civil rights movement.

Whereas such things as affirmative action were intended as group considerations, they morphed into individual rights to jobs and other considerations. Lost was the "coherent legal framework" of right and wrong. Judgment was essentially banned, and without it nothing works. It is a human characteristic for which law is not a substitute. Freedom requires its exercise, and that is precisely what has been sacrificed upon the altar of modern day hyper-legalism. The 60s activities resulted in this new idea of individual rights: "Let any individual who feels aggrieved bring a legal claim for almost anything." It was assumed that fairness would result; clearly it has not.

Modern law is the principal cause of the decline in our social order; "we" are falling apart because common sense and judgment are verboten. Nothing works. Politics are so polarized that everything in Washington is done for party advantage. Candidates rant about the need for change, as the congressional houses routinely fail to deliver; it is simply not possible when everything inside the beltway favors the status quo. Nothing can change within the system. Only organizing against it will work.

American exceptionalism is unique, and it is fading because of these newfound individual rights as they impact upon the scope of law. "The evil of present day American law" is not that it addresses the wrong goals, or that it us unforgivably dense (though it is), but that it "infects daily choices with a debilitating legal self-consciousness." We no longer feel free to do what we feel is right.

With this background development he begins to explore the end-product of this process, noting specifically:
• chaotic classrooms wherein teachers are threatened for imposing discipline results in police being called to handcuff and remove five year old children from the classroom
• murdering nurses are shunted from one facility to another because all are afraid of judging the suspect culprit and reporting suspicious events to police
• shootings like those at Columbine and Virginia Tech are perpetrated by people known to be "unbalanced," yet no one is comfortable stepping forward to have them removed from campus.
And so it goes. The "evil" of overly individual rights prevails; the common good be damned. Fairness requires balancing, which requires human judgment, which is forbidden.

Americans like the idea of jury trials, but no one is permitted to keep the claims and arguments within reasonable bounds. Judges are neutered, or frightened into maintaining "fairness," even if the proceedings are fallacious or overwrought. Prosecutors occasionally overstep (the Duke lacrosse player incident comes to mind), but they are slapped down. No one swings at the prosecutors in tort law. Lawyers like John Edwards are permitted to lie in court and to present testimony from fraudulent "experts," and the defense is often similarly culpable, even in murder trials (O.J. Simpson, anyone?)

Until 40-50 years ago culture accepted that people should judge others. Now it's practically criminal to do so. People whose gauge is "feelings" are unwilling to accept judgment.

At root is accountability. People are more comfortable without it; government functions wholly without it. One is accountable to following the law. If done precisely, regardless of impact, one is no further accountable, and with such accountability no one is really liberated (or accountable in historic context of that concept.).

The mechanism by which government has slipped away from democratic grasp is too much law. "The law" has replaced responsibility. Yet Washington loves the status quo. Nothing accomplished, nothing gained, but neither is anything lost. No risk. No offense. No mistakes. Trust the law.

The predicament is in the premise: that law should tell people how to do things. It cannot. Washington takes no responsibility for the future or the past. No longer is governing the point; only winning. Success is defined by how many political traps have been set and how many battles have been won.

Many Democratic politicians privately acknowledge that lawsuits are completely out of hand, but trial lawyers are the second-largest source of their campaign funds. Alternatively, the Republicans shamelessly support corn-alcohol subsidies and they trade votes with each other, and those of other dispositions, in order that they all survive and "win." Madison, he reminds, noted that government was a magnet for self-seekers, but presumed that the several "factions" would neutralize each other. Unfortunately Madison was wrong. There is no competition for the greater good; each group demands its pound of flesh from the common weal. Yet the harm caused by special interest is not mainly the pork; rather, it is the inability to govern.

It is necessary is to abandon the existing structure; create a new government focused on goals and personal responsibility. Many of these folks are good people; especially so most bureaucrats. They are simply overwhelmed by the system. Goals, not compliance must be the focus, though congress must be accountable for oversight and determination of how laws function in practice.

Nothing is more unpalatable to the modern mind than giving someone authority to make choices which affect other people. But it must be done. America lacks leaders because we have made leadership unlawful. The confusion of good judgment with legal proof is the most insidious fallacy of modern law. Decisions pressed thru a legal wringer are not better decisions. Right and wrong cannot be programmed, nor can they be legislated.

Individual judgment is unsatisfactory as an organizing legal principle because judgment varies widely, and reasonable people can approach the same problem differently. Florence King once observed, some things are right and others wrong "just because." We all know it. One can't think oneself into it. It is just so. Children sense right and wrong without instruction. Whitehead stated that "it is a profoundly erroneous truism that we should cultivate the habit of thinking of what we are doing."

"Most adults of a certain age remember a time when teachers were role models, not just people on the clock. Unimaginable as it may seem today, lawyers were the aristocrats, respected for their integrity. Doctors cared for the indigent as well as those who could pay. Political leaders were at the top if the social order. Society was hardly perfect, but there was a sense that people were important to each other. Standing in the community meant something. We were all in it together."

Americans don't share values any longer. Indeed, the 60s was a time when values were overturned and replaced by . . . nothing, really. The cure to bad values--or no values--is good values, and these are not imposable by law. Squeezing them thru "a legal gauntlet" discourages people in authority from asserting any values.

America's greatest natural resource is--or has been, at least--a culture which unleashes the power of individuals, but that spirit erodes to nothing when people are forbidden to exercise it. Distrust has overpowered good sense. We all know it, but we must do something about it. And very soon.

Posted by Curmudgeon at June 15, 2011 3:45 PM