After a very good interview on the Daily Show I decided to read Philip K. Howard’s new book, Life Without Lawyers: Restoring Responsibility in America. Below are some passages that stood out to me as well as Howard’s basic arguments:
What has been lost is a coherent legal framework of right and wrong. A free society requires that people generally understand the scope of their freedoms. Without reliable legal boundaries’, distrust will infect daily dealings. People start to fear each other, and they start to fear the law. That’s what’s happening in America, particularly for teachers, doctors, managers, and others with responsibility.
Law is vital to freedom. By enforcing norms for honesty, for example, law provides the foundation of free interaction. But law can destroy freedom as well as support it. Our founders were concerned about oppressive laws – they added the Bill of Rights precisely to prevent abuses of state power, even through duly enacted laws. Freedom – by definition, the absence of restraint – can be encroached upon by many sides. Freedom can be destroyed by tyrants, by lawlessness – and by too much law.
This requires a sharp turn away from legal conventions – nearly endless rules and rights designed to avoid decisions by people with responsibility – towards law that restores fee exercise of judgement at every level of responsibility. We must make our legal structures so that Americans are free again to make sense of everyday choices.
In this new legalistic culture, people no longer look inside themselves to do what’s right. Instead they focus on possible legal implications.
The legal shackles that frustrate teachers, doctors, and managers in daily dealing are not the inevitable price of a working social order. Modern law is a main cause of the decline of our social order. Schools and hospitals are failing in part because the people within them no longer feel free to make decisions to make them work.
America indeed is in a crisis – a crisis of individual freedom. We have lost the idea, at every level of public life, that people can grab hold of a problem and fix it. We have become culture of rule followers, driven to frame every solution in terms of existing law or possible legal risk. Gradually, without noticing when it happened, we’ve lost our ability to make the choices needed to run a society.
‘The evil of modern American law is not that it addresses the wrong goals – by and large it addresses the right goals. The evil of modern law is that is has infected daily choices that a debilitating legal self-consciousness.
Laws need to be restructured to not only address the needs of an interdependent society but also protect the power of individual freedom. These laws must be balanced with defined wrongs while also protecting freedom. As John Locke said, ‘The end of the law is not to abolish or restrain, but to preserve and enlarge freedom. ‘
In the age of individual rights, American leaders do not focus on risk trade-offs and odds but on the effects on a single person instead of looking at the effects on everyone. Legal risk is different from other types of risk because instead of weight the benefits and costs of a choice, the focus is shifted to the lowest common denominator.
We cannot eliminate risk. We have to live with it, manage it. Sometimes we have to accept: no-one is to blame.
[This made me think of the BP Oil spill. As technology gets more and more advanced everything gets more complex and unfortunately accidents just happen. Of course the government need to investigate and make sure there was no negligence but the government (and the public) need to be will to accept that it may have just been a tragic accident. The response shouldn’t necessarily be to heavily regulate off-shore drilling at the expense of jobs and America’s energy security but to come up with new safely guidelines which do not over burden the industry.]
Rights for individuals in society are necessary to guarantee fairness but it can go too far. The new rights give power to people to demand something from other free citizens while the rights the Founding Fathers envisions were defensive in nature (in particular to protect you from the government). Often times now modern rights given to citizens bring everyone down towards the level of the least able. Howard feels that rights should be a tool for freedom but they have become a form of tyranny, albeit well-intentioned. By allowing some citizens to wield coercive power over others for their own benefit, modern rights repudiate a core precept of freedom. Fairness needs to be achieved through balancing different interest rather than the rights of the few. The best way to achieve this is though human judgement. Someone must have the authority to make balanced judgements but should still be held accountable for those decisions.
If judges don’t draw the boundaries of reasonable risk as a matter of law, then pretty soon legal fear undermines our freedom. Fairness is similarly impossible without the authority to balance different interests.
More on this book tomorrow.