The Death of Common Sense by Philip K. Howard
It’s hard to believe that this book is fourteen years old, for all the complaints contained within seem doubly true for today. The legal code has become suffocating, and devoid of rhyme and reason. The law has become a tool with which to bludgeon dissenters, and the lack of logic within the law itself, as well as the lack of internal consistency has created a situation in which people go to jail for doing things that make sense or, even more often, for not doing things that don’t make sense. So says Philip K. Howard.
Howard’s assertion that common sense is now dead, at least within the legal system is elegantly defended. He points out numerous cases where ordinary citizens are forced to comply with laws that make no sense or, worse yet, achieve the exact outcome they were supposed to prevent. Compliance is often difficult and costly. Furthermore, compliance with the regulatory apparatus has rather negative effects on small business in particular. Sadly, laws that are intended to help certain groups, most notably the disabled, often have the effect of making their lives more difficult. And things that would help a large number of people are often forbidden because they cannot or do not help protected interest groups.
Howard lays out two reasons why this is the case: The fetishization of legalism and the desire for perfect fairness.
Legalism has become a fetish for Americans, and the thinking is that the law can both adequately predict human behavior and adequately prescribe its remedy. In keeping with this, it necessary that the law be as precise as humanly possible, and that it be as thorough as possible. All possibilities must be accounted for in advance, and everyone should be given fair warning of the rightness or wrongness of their actions well in advance. This leads to increasingly exacting laws that become more and more precise (the railing near the machinery must be twenty-six inches, e.g.). Whether twenty-six inches is the optimal height or whether the railing is even necessary in any given instance is beyond the scope of the law. The attempt to codify human judgment has eliminated it altogether.
Of course, the ever-expanding legal code is only necessary to ensure fairness. Unfortunately, the exact definition of fairness is never known. Is it fair, one might ask, to deprive people of sidewalk pay toilets if handicapped people can’t use them? New York City has already answered in the affirmative. Is it fair to require businesses to spend thousands of dollars retrofitting their establishments to accommodate handicapped people, even though it isn’t profitable? Is it fair to allow businesses to be entrapped by handicapped people who are looking for a lawsuit? These are uncomfortable questions, to be sure, but bureaucrats have already supplied the answers, and now everyone must bear the costs.
The Death of Common Sense is a contemplative read, and not altogether reassuring. The problem is easily identified, and the solution can be readily inferred. The problem, though, is that as one reads the book, one readily concludes that attaining the solution is a hopeless endeavor. Nonetheless, the book is a must-read, and is now part of my regular reading shelf.