His title is true in one sense and not true in another. The laws bind us to being less powerful in our lives and at the same time, they can never bind us since ultimately we only accept the victim status psychologically if we say so. This distinction is crucial for the future of political freedom from the heavy hand of government force. My comments are in green.)
Wall Street Journal, January 26, 2009
How Modern Law Makes Us Powerless
The real barrier to Barack Obama's 'responsibility' era.
By PHILIP K. HOWARD
Calling for a "new era of responsibility" in his inaugural address, President Barack Obama reminded us that there are no limits to "what free men and women can achieve." Indeed. America achieved greatness as the can-do society. This is, after all, the country of Thomas Paine and barn raisings, of Grange halls and Google. Other countries shared, at least in part, our political freedoms, but America had something different -- a belief in the power of each individual. President Obama's clarion call of self-determination -- "Yes We Can" -- hearkens back to the core of our culture.
Cartoon by David Klein
But there's a threshold problem for our new president. Americans don't feel free (Because objectively they aren’t free) to reach inside themselves and make a difference. ("Make a difference" is one of those unobjective buzzwords that has come to mean "make a difference with other people as a purpose for living one's life." It is true that what one creates and produces can make a difference with other people but it can never be an authentic purpose for one's life. Making a profit means one is making a difference because people traded their money for what you produced.) The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices. All around us are warnings and legal risks. The modern credo is not "Yes We Can" but "No You Can't." Our sense of powerlessness is pervasive. Those who deal with the public are the most discouraged. Most doctors say they wouldn't advise their children to go into medicine. Government service is seen as a bureaucratic morass, not a noble calling. Make a difference? You can't even show basic human kindness for fear of legal action. Teachers across America are instructed never to put an arm around a crying child.
The idea of freedom as personal power got pushed aside in recent decades by a new idea of freedom -- where the focus is on the rights of whoever might disagree. (Rather than the objective violation of a person’s right to his life and his property, the visible expression of his life.)
Daily life in America has been transformed. Ordinary choices -- by teachers, doctors, officials, managers, even volunteers -- are paralyzed by legal self-consciousness. Did you check the rules? Who will be responsible if there's an accident? A pediatrician in North Carolina noted that "I don't deal with patients the same way any more. You wouldn't want to say something off the cuff that might be used against you."
Here we stand, facing the worst economy since the Great Depression, and Americans no longer feel free to do anything about it. We have lost the idea, at every level of social life, that people can grab hold of a problem and fix it. Defensiveness has swept across the country like a cold wave. We have become a culture of rule followers, trained to frame every solution in terms of existing law or possible legal risk. The person of responsibility (Responsibility is a function of reaping and experiencing the consequences of one’s actions. Government force erases responsibility. One cannot be responsible for that which he had no choice but to do.) is replaced by the person of caution. When in doubt, don't.
All this law, we're told, is just the price of making sure society is in working order. But society is not working. Disorder disrupts learning all day long in many public schools -- the result in part, studies by NYU Professor Richard Arum found, of the rise of student rights. Health care is like a nervous breakdown in slow motion. Costs are out of control, yet the incentive for doctors is to order whatever tests the insurance will pay for. Taking risks is no longer the badge of courage, but reason enough to get sued.
There's an epidemic of child obesity, but kids aren't allowed to take the normal risks of childhood. Broward County, Fla., has even banned running at recess.
The flaw, and the cure, lie in our conception of freedom. (And that lies in the understanding of man’s nature and the type of consciousness he has.) We think of freedom as political freedom. We're certainly free to live and work where we want, and to pull the lever in the ballot box. But freedom should also include the power of personal conviction and the authority to use your common sense. Analyzing the American character, Alexis de Tocqueville, considered "freedom less necessary in great things than in little ones. . . . Subjection in minor affairs does not drive men to resistance, but it crosses them at every turn, till they are led to sacrifice their own will. Thus their spirit is gradually broken and their character enervated."
This is not an ideological point. Freedom in daily choices is essential for practical reasons (and spiritual reasons) -- necessary for government officials and judges as well as for teachers, doctors and entrepreneurs. The new legal order doesn't honor the individuality of human accomplishment. (The new legal order doesn’t honor the existence of individuals.) People accomplish things by focusing on the goal, and letting their instincts, mainly subconscious, try to get them there. "Amazingly few people," management guru Peter Drucker observed, "know how they get things done." Most things happen, the philosopher Michael Polanyi wrote, through "the usual process of trial and error by which we feel (Really? I don’t think that captures it. He’s missing the mind’s cognitive role in our actions.) our way to success." Thomas Edison put it this way: "Nothing that's any good works by itself. You got to make the damn thing work."
Modern law pulls the rug out from under all those human powers and substitutes instead a debilitating self-consciousness. (Reality consists of what there is to be conscious of and also one’s own consciousness – that tool of survival in the world. The proper processing of information from one’s senses requires focusing out there and also being responsible for one’s mechanism by which one grasps and processes that information.) Teachers lose their authority, Prof. Arum found, because the overhang of law causes "hesitation, doubt and weakening of conviction." Skyrocketing health-care costs are impossible to contain as long as doctors go through the day thinking about how they will defend themselves if a sick person sues.
The overlay of law on daily choices destroys the human instinct (man does not possess instincts. He is a living entity and for man, he must choose to live. Nothing automatically propels him in that direction other than his nature as a living entity has built into mechanisms which indicate to him that he is doing that or not doing that. But what he does about the information he gets from his body – the pleasure or the pain – doesn’t tell him what to do. He has to discover that. Hence no instincts. An instinct is an automatic propensity toward life that works to sustain him. Animals have that, but not man. Man is quite capable of choosing suicide and often does.) needed to get things done. Bureaucracy can't teach. Rules don't make things happen. Accomplishment is personal. Anyone who has felt the pride of a job well done knows this. (This is the experience the unification of the mind and body in performing an Ego Unit. The Ego Unit is a discovery of mine which supports a person to grasp the nature of real accomplishment and consciously engage in that practice if he so chooses.)
How do we restore Americans' freedom in daily choices? Freedom is notoriously malleable towards self-interest. "We all declare for liberty," Abraham Lincoln observed, "but in using the same word we do not all mean the same thing."
Freedom, however, is not just a shoving match. Freedom has a formal structure. It has two components:
1) Law sets boundaries that proscribe what we must do or can't do -- you must not steal, you must pay taxes.
2) Those same legal boundaries protect an open field of free choice in all other matters.
The forgotten idea is the second component -- that law must affirmatively define an area free from legal interference. Law must provide "frontiers, not artificially drawn," as philosopher Isaiah Berlin put it, "within which men should be inviolable." (Our Constitution is the document that is the means of carrying out The Declaration of Independence. In that it states that every man has a RIGHT to his life, liberty and the pursuit of happiness, i.e. the freedom to be free of other men telling him what to do. This has been done. So what is the REAL problem? What is it that has taken us in the direction away from something that we already know works and releases the creative energy of men? This is the real question which this author does not answer. He keeps his argument at the level of laws and yet those laws are carrying out more fundamental beliefs. What are they?)
This idea has been lost to our age. When advancing the cause of freedom, law today is all proscription and no protection. There are no boundaries, just a moving mudbank comprised of accumulating bureaucracy and whatever claims people unilaterally choose to assert. People wade through law all day long. Any disagreement in the workplace, any accident, any incidental touching of a child, any sick person who gets sicker, any bad grade in school -- you name it. Law has poured into daily life. (This is why I no longer take on architecture in the way I once did. In my lifetime, the building code has gone from a small 5x8 book about an inch thick to a 4’ shelf of 9x12 binders specifying dimensions and layouts and surfaces and construction and everything. One can do nothing without consulting the building code and trying to figure out what is meant. Creative energy is sapped by bureaucratic energy. Working on big buildings thoroughly contained by all these laws and dictums which, by the way, are never finalized in the books since the government interpreters are constantly changing them, is to render oneself a drone for life. That’s not me and I’m not interested. So I shrunk my sphere of operation to small private creative projects that I am stimulated by and yet avoid the bulk of government regulation.)
The solution is not just to start paring back all the law -- that would take 10 lifetimes, like trying to prune the jungle. We need to abandon the idea that freedom is a legal maze, where each daily choice is like picking the right answer on a multiple-choice test. We need to set a new goal for law -- to define an open area of free choice. This requires judges and legislatures to affirmatively assert social norms of what's reasonable and what's not. "The first requirement of a sound body of law," Justice Oliver Wendell Holmes Jr. wrote, "is that it should correspond with the actual feelings and demands of the community." (We need to understand that no one has the right to tell us what to do and compel our action and at the same time none of us has the right to infringe the same right of another person. This in practice means the separation of economy and state in the same way that in our past we have separated church and state. This separation is breaking down too.)
The profile of authority structures needed to defend daily freedoms (So what is this concept “daily freedoms?” This kind of thinking is typical of a person who is stopped from thinking by wanting to please people, I say, rather than identifying the nature of things. This is why this article, although capturing the spiritual essence of our New Slavery is poor at identifying what has to be seen differently if things are to change and man is able to live free once again.) is not hard to imagine. Judges would aspire to keep lawsuits reasonable, understanding that what people sue for ends up defining the boundaries of free interaction. Schools would be run by the instincts and values of the humans in charge -- not by bureaucratic micromanagement -- and be held accountable for how they do.
Government officials would have flexibility to meet public goals, also with accountability. Public choices would aspire to balance (balance has nothing to do with the solution of this problem. Rather it has to do with acting from objectively true principles.) for the common good, not, generally, to appease someone's rights.
Reviving the can-do spirit that made America great requires a legal overhaul of historic dimension. (The legal overhaul cannot proceed without moral guidance as to which kinds of actions are consonant with man’s nature and need to be protected by the law. Thus the deeper problem is the re-examination of the dominant moral code and the assumptions about existence and consciousness upon which it depends. I’m of the opinion that the surrender of one’s mind to a higher authority – be it God or Society – must be thrown out lock, stock and barrel. Rather, people have to question all of these underlying structures and see whether they work and why or are they allowing them in their lives for other reasons – such as social acceptance.) We must scrape away decades of accumulated legal sediment and replace it with coherent legal goals and authority mechanisms, designed to affirmatively protect individual freedom in daily choices. "A little rebellion now and then is a good thing," Thomas Jefferson wrote to James Madison, "and as necessary in the political world as storms are in the physical . . . ." The goal is not to change our public goals. (Well there is no such thing as a public goal. In fact there is no such thing as “the public.” “The public” is a collectivist floating abstraction. Anything said in the name of the public is total BS because the public is nothing more than a collection of individuals. So ascribing anything to the public means that the speaker wants his values and the rest be damned. Whoever those other people are at the moment of his speaking do not exist. He may think he speaks for the public, but that is a fat lie too.) The goal is make it possible for free citizens to achieve them.
(In today’s culture, no one with a public voice is speaking for individualism. All leadership, some faster and some slower, is leading us into the slavery of the individual to the collective. In this context, there were no good political candidates this year. The New Enslavement is speeding up)
Mr. Howard, a lawyer, is chair of Common Good (http://www.commongood.org/), and author of the new book "Life Without Lawyers," published this month by W.W. Norton & Co.
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