29 September 2011

Book Review

Life Without Lawyers by Philip K. Howard

Howard’s first claim to fame was the best-selling Death of Common Sense.  Since then, his careful observations on the role and rule of law in America have become more refined and incisive.  Life Without Lawyers is a remarkably brilliant book, concisely diagnosing the problem and prescribing a remedy.

Howard starts off by noting how dysfunctional American society has become, particularly in the public realm.  Schools are falling apart and students are falling behind.  Parents are frustrated with teachers, teachers are frustrated with students, everyone’s frustrated with the principals, and students are frustrated with everyone.  Public playgrounds have been gutted:  monkey bars and merry-go-rounds have been taken down and sterile plastic facilities erected in their place.  Public parks have closed access to beloved features.

The problem, in each case, is that the law has stifled human behavior.  Teachers aren’t allowed to meaningfully discipline students (and, in some cases, grade students too harshly) because the parents might sue said teachers on behalf of the children.  And principals are also too encumbered by law and regulation to serve as anything more than a glorified referee when it comes to resolving problems between parents and teachers or students and teachers.  Park and playground managers also fear lawsuits, so they shut down or remove any “unnecessarily” risky part of a park or playground.  The reason this state of affairs has persisted for some time now is due, in part, to a shift in the view of rights and, in part, a shift in the view of personal authority.

In the case of the former, rights are now viewed positively instead of negatively.  Instead of saying that no body (whether a business, government, or individual) has the authority to interfere with any other person’s exercise of their rights, the law now says that one has the unrelenting right to a certain outcome (e.g. the right to not be offended, the right to an education, the right to a job, etc.).  Of course, this is a problematic change because this line of reasoning effectively justifies a large amount of outside interference into the lives of individuals, under the guise of ensuring equality.

In the case of the latter, people, not even those generally deemed wise or trustworthy, are no longer allowed to have any authority for themselves in the event that they make a bad decision.  Ironically, this policy has led to more problems than it has solved because the law cannot perfectly anticipate the sort of messes humans can make for themselves, nor can the law suggest which guiding principles take precedence in the event of legal conflict.  The law, then, serves as a scapegoat for bad decisions.  Administrators cannot be blamed for not calling emergency when a child goes into anaphylactic shock if they are unable to contact the child’s parents to get permission to seek medical service on the child’s behalf.

Perhaps there is something comforting in the idea that the law is impersonal and objective, but often it seems cold and heartless, and places the lives of innocent people at risk simply because humans cannot be trusted to make a proper decision.  Of course, laws are made and enforced by humans and, as such, take on all the attributes of humanity:  imperfection, short-sightedness, ignorance, and a host of other biases.

Ultimately, human life is a human endeavor, and will always be filled with failures.  Law cannot fix this; it can only hope to mitigate this to a limited extent.  As Howard points out, though, this is rarely the case.  Laws are choking out human initiative, leaving American society to slowly die out because it is too afraid to take a chance and trust human authority.

Having made his diagnosis and supported it with plenty of evidence, Howard then proceeds to prescribe a solution to the problem:  more freedom.  Specifically, Howard recommends eliminating laws that discourage risk-taking, judgment, and fairness.

In regards to taking risk, Howard notes that the law often encourages people to pursue stultifyingly safe behavior and strategies.  People are afraid to allow anything approaching risky on their property, or on public property, out of fear that they might be sued.  For example, the mere threat of a child allergic to nuts walking on a street lined with oak trees is sufficient grounds to have those trees chopped down.  The law encourages this sort of thing, which is why it must be changed.  There are always risks in life, but that doesn’t mean the government should order other people around simply to give on child a slight temporary convenience.

In regards to judgment, Howard notes that judgment is inevitable in life, and it is thus unfair to ask people to be able to defend their judgment with in great detail.  Of course, “great detail” usually implies an exorbitantly wasteful amount of paperwork detailing just what behaviors are unacceptable.  Worse yet, unacceptable behaviors are held to an objective standard in court, and that standard tend to be pretty low (“well, he may have showed to work late every day for the past six months, but at least he’s not a rapist…”).  Unfortunately, unacceptability is often a subjective judgment.  Sometimes an employee, for example, should be let go because his personality clashes with other employees’ personalities.  How do you document that?

Finally, Howard notes, in regards to fairness, that the concept of fairness is both subjective and situational in a large number of instances.  Static legal code is simply not flexible enough to deal with the myriad judgments that must be made by all those in positions of authority every single day.  The law is neither omniscient nor wise; it isn’t even as knowledgeable or wise as the people that are currently subject to it.  Yet the current mindset is that the law is more trustworthy than human judgment (although, truth be told, the law is more trustworthy than human judgment even though the law fails more often because the law has the benefit of failing predictably, making it the superior scapegoat in the event of failure).

Overall, this book is a very clear and compelling read.  Philip Howard states his case simply and elegantly, and his assessment of the problem and its solution is straightforward and thought-provoking.

2 comments:

  1. Several years ago, here in Australia, there was a crisis in medical indemnity insurance, resulting in a rapid unavailability in neurosurgical and obstetric services. The cause of this problem was the rapid rise in successful litigation against the medical profession( a lot of it unjustified) making some medical practices economically nonviable.

    The local television station did a community poll asking people whether they would be happy to forgo the right to sue in order to increase the availability of medical services. Nearly all the responded wanted both. i.e. the right sue and an increase in medical services. The government solved the problem by subsidising the doctor's insurance premiums.

    The courts only administer the law, yes, I'm aware of the existence of a creative judiciary, but ultimately it's the public that decide the legal environment. The public doesn't understand tradeoffs and it's reflected in the Law.

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  2. @SP- I don't think I made this clear in my review (and I apologize), but Philip Howard uses "law" to refer to not only all legislation and judicial rulings, but any and all regulations that apply to citizens. I don't necessarily agree with this definition, but it is the one Howard uses. Under this definition, then, it is possible for law to work and operate contra to the desires of those who are under its rule. This is especially true in America, since regulatory agencies are borderline insane in the level of detail they place in their regulation.

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