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
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