What if every wrong does not have a remedy; every pain, a pill; every injury, a cause of action? What if, in each case, the cure were worse than the illness?

This is a tough choice for government and for the governed. It requires great legislative, executive or judicial restraint, often in the face of true human suffering, not to create some new government solution. However, this is what I believe we must be prepared to do if our societies are not to become ossified webs of regulation.

This is not some personal frolic into far right conservatism or libertarianism. I have always believed and continue to believe that there are two core functions of the nation state: To protect its people and to preserve their liberty. These always exist in a certain dynamic tension; however, of late I have begun to worry that, at least in the US and Western Europe, the balance is overly tilted to nanny-state protectionism.

Unfortunately, bad stuff sometimes happens to good people. Cancer and other disease is an obvious example, so are many other less life-threatening conditions. Let's imagine that this morning Glocer the Klutz slipped and broke his leg in the shower. Not a good way to start the day, but also not to my mind ground to sue the bathroom tile manufacturer for failure to affix a warning label reading: "Danger, May Be Slippery When Wet." Similarly, but on a grander plane, some real bad acts were committed in the US mortgage banking crisis, but that does not mean that the right answer for society at large is the passage of the Dodd-Frank legislation and its tangled web of implementing regulations.

Here is the crux of the issue: It is very difficult in the face of a specific bad outcome to stay the legislative hand from enacting new rules that, when added to all the existing and accelerating lawmaking, do not make society as a whole worse off. Or, as I learned in law school, bad facts make bad law. What makes this a particuarly difficult issue is that the bad outcome is known and measurable, but the benefits of liberty are general and unquantified. I cringe each time a sitting President of either party points to the upper tier of Congress during a State of the Union address and singles out one American citizen by name (usually seated next to the First Lady) as deserving of some government-privided solution. You can almost feel the surfeit of legislation to come.

This phenomenon is not by any means limited to lawmakers. So, for example, when a civil jury awards millions in damages for pain and suffering in the last seconds of an accident victim's life, the money is not a "free" good; rather it will be funded through small increases in the insurance costs for all of the responsible citizenry. It would be far more efficient for society to provide adequate healthcare generally to accident victims than to use the courts and juries to allocate lottery-like awards to the specifically litigious few.

One person who has been doing more than just talk about these issues is Philip K. Howard, author of The Death of Common Sense (subtitled "How Law is Suffocating America"), founder and chairman of Common Good (www.commongood.org) and cited favorably in prior posts to this blog (see Debt vs. Equity --The Ossification of Economics and Politics). Core to Phil's message is that the continual enactment of new laws, much like the successive hardening layers of lava in Pompeii, have ossified and buried the ability of the Nation to govern itself. What we are left with is a modern America in which good people elected to high office with the best of intentions find themselves incapable of using their best judgment to govern in our common interest.

As Phil writes:

"Today Americans are tied in legal knots, and can’t use their common sense. Teachers are diverted by endless bureaucracy. Doctors are paranoid about lawsuits. Officials have their noses in thousand-page rulebooks... Even the president is stuck, unable to approve environmental projects without a decade of review… To fix things, however, officials must be free to do things differently. There’s only one solution: Allow officials flexibility in exchange for individual accountability if they abuse their authority."

Rather than Tea Party conservatism or Occupy Wall Street nihilism, we need a national reset. A return to common sense for the common good in which we stop trying to micro-manage every individual outcome in a nation of 300 million, and let good people get on with the serious job of governing a great country.