Time for a Movement for Legal Reform

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David Brooks' column in yesterday's New York Times describes the thinking of Phillip Blond, a Brit who is advancing a Tory philosophy of individual freedom by attacking the centralization of Tory business and modern government.  Blond's goal is to restore individual self-determination, both in community affairs and in the economy.

 

Reviving the authority of individuals over daily choices is also my interest (see Life Without Lawyers: Restoring Responsibility in America), except that my emphasis is on overbearing law, not corporate monopolies and distant officials.  My elevator speech might be something like this: 

 

Modern law has severed people from their best judgment.  Teachers answer to bureaucracy, not their sense of what's right in a particular situation.  Doctors go through the day with a little lawyer on their shoulders, whispering defensiveness in ordinary patient encounters.  Community leaders are stymied by dictates from some legislative mandate long since obsolete.  Government officials are paralyzed by the accretion of law, each word of which is zealously guarded by some special interest.

 

Both of us can be right, of course--Blond's concern is with centralized power, and overbearing law is the ultimate centralized monopoly.  What Blond doesn't seem to focus on is how law also handcuffs the centralized authorities he decries.  Even the President is powerless in the face of law.  Recently it came out that $5 billion of stimulus funding for weatherproofing 590,000 homes hadn't been spent--because of a law passed in 1931 (signed by President Hoover) that requires the federal government to fix the wages of weather-proofers in each of 3,000 localities.  Obsolete laws prevented the President from hiring thousands of people last year. 

 

Blond's solutions, sketched in an article in Prospect, are basically economic--let the British post office become a lending bank to small business, decentralize procurement so that government can buy local goods and services.  Blond touches on the paradox of individual rights leading to "atomized individualism" but without any structural solution I could find.

 

Blond's ideas are powerful.  But economic reforms cannot alone restore local initiative.  Dense regulation is an impassable barrier for many small businesses.  Social services are centralized because they're so heavily regulated.  America's sue-for-anything legal philosophy subjects any aspiring entrepreneur to bankruptcy for something as trivial as a firing disagreement. 

 

Reviving personal initiative is impossible without basic legal overhaul.  Restoring the freedom to use judgment requires a shift away from individual rights--which causes people to act defensively--towards legal norms that protect broader freedoms and the common good.  In government, this shift involves a radical simplification and decentralization, with the goal of empowering individuals to take responsibility. 

 

There is reason to believe the public is hungry for these changes, as David Brooks suggests in his column.  A speech I gave recently at the TED2010 conference on the need for a shift in legal philosophy was met with surprising enthusiasm.  (You can watch it here.)

 

But neither political party in the US has even a glimmer of interest in this issue.  What's needed here is a movement.  As a first step, some of my new friends from the TED conference are working with Common Good to host a forum on paralysis in government.  The goal is to change the debate from finger-pointing to the need for basic overhaul.  People who believe the system is broken have to band together and force change upon a political system that seems content to preside over a status quo of slow suffocation. 

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Philip K. Howard is a lawyer and author, and the chair of Common Good. He most recent book is The Rule of Nobody.

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