Life Without Lawyers - by Philip K. Howard
ISBN: 0393065669Date read: 2010-04-24
How strongly I recommend it: 1/10
(See my list of 360+ books, for more.)
Go to the Amazon page for details and reviews.
I really liked his TED talk (search ted.com), and this book elaborates on the idea. Makes a good point, but should just be a long article - not a whole book.
my notes
Does the law require that all trees be cut down, because some youths may climb them and fall?
The only freedom that deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs.
In an effort to avoid human error, we have created legal structures based on an unspoken premise that correctness can be proved or programmed in advance.
Today we assume unquestioningly that any activity will be more effective if we detail in advance how to get the job done.
The American belief in social mobility rather than status: People can strive to get somewhere. Immigrants understand this better than anyone. “Here a man can go as far as his abilities will carry him. No traditions hamper him. No limitations are set except those within himself.”
Growing up in the South, I remember wondering how people found a sense of purpose in their lives. It was hard to see much originality underneath all those southern manners. It was as if everyone were stamped out of a politeness mold.
Better than any society in history, America shed the baggage of cultural self-consciousness and let people access everything that was in them. Americans acted; they didn’t wring their hands about how to act. They looked ahead, not over their shoulders.
The evil of modern law is that it has infected daily choices with a debilitating legal self-consciousness. Americans no longer feel free to do what they feel is right.
One-sided focus on possible wrongdoing doesn’t acknowledge the need to preserve an open field of freedom so people can live their lives. Freedom today is just whatever’s left over after everyone’s made their legal demands.
Law sets boundaries that proscribe wrongful conduct. These same boundaries also protect an area for free choice in all other matters. The forgotten idea is the second principle - that law must affirmatively protect an area of free choice, including freedom from legal interference.
The range of exploration from home by 9-year-olds is about 10 percent what it was in 1970. Only 15% of children walk or bike to school, compared to 50% in 1970. Kids have been taught that outside means danger - from cars, from adults, from the uncertainty of the real world.
These modern rights are usually asserted in someone’s own interest. The new rights give power to people to demand something from other free citizens.
It is a nice trait of the American character, that we want everyone to have the same opportunities as others.
Modern rights are not a tool of freedom, however. They are a form of tyranny, allowing some citizens to wield coercive power over others for their own benefit.
Distrust of authority: Americans can’t stand the idea of people making decisions that affect other people. Giving someone authority to make balancing choices is almost unthinkable. Who knows what prejudices lurk inside someone’s soul? We live in a diverse culture and, we’re told, one person’s values of right and wrong should not be imposed on someone else. We want automatic fairness.
There’s this idea nowadays that any negative outcome must violate your rights.
What’s required to put this genie back in its bottle is as simple as it is revolutionary: Restore the authority of people with responsibility to make judgments that strive toward balance.
People will always make selfish demands on common resources, unless there’s a mechanism that draws the line on behalf of all society. Moving the needle back to the center - generally the goal of good public policy - requires restoring the authority for balancing.
The distrust of authority is palpable. The core assumption is that society can be organized without human intervention. The idea of a judge making legal rulings on standards of care struck her as an invitation to abuse, a form of tyranny instead of a key ingredient of the rule of law. This is the mind-set of our time. No idea is more unpalatable to the modern mind than giving someone authority to make choices that affect other people. That’s why we have law, or so we believe - to dictate or oversee almost any life activity. Law, we think, should protect people from the judgment of others.
The goal was to protect against unfair authority, but the effect was to preclude fair authority. As an unintended part of the bargain, we lost much of our freedom.
Law is supposed to be a structure that promotes our freedom. It does this by setting boundaries that define an open field of freedom. Instead law has moved in on daily life, becoming the arbiter of potentially every disagreement in a free society. We’ve asked law to do too much - trying to enforce fairness in daily relations is not freedom, but a form of utopia that predictably degenerates into squealing demands for me, me, me.
Setting outer boundaries allows people to make free choices, whether it’s running the classroom, managing the department, or putting an arm around a crying child. Bring law into daily disagreements, and you might as well give a legal club to the most unreasonable and selfish person in the enterprise.
The quest for objective truth is not merely futile, however. It is actively destructive of good judgment. People who feel they must demonstrate the correctness of decisions, studies have repeatedly shown, will make worse decisions.
The path back to freedom is letting all citizens, especially those in positions of leadership, be free to act on their best judgment.
“Wherever and whenever one person is found adequate to the discharge of a duty, it is worse executed by two persons, and scarcely done at all if three or more are employed.” - George Washington
The more choices someone is able to make, the more checked he will be by public scrutiny. “There is no danger in power, if only it be not irresponsible, if it be divided…it is obscured; and if it be obscured it is made irresponsible.” - Woodrow Wilson
An effective leader does not hew to the path of legal conformity, but will almost always make choices that are unexpected. “Effective leadership has to be based on intuitions that are correct, notwithstanding doctrines that deny their correctness.” - Chester Barnard
The litmus test of leadership is trust by others. “The only definition of a leader is someone who has followers.” - Peter Drucker
We have to make a choice: It’s either leaders or lawyers.
Philosophers such as Erich Fromm have argued that the legal cage we’ve built for ourselves just reflects our own “fear of freedom.”
This miracle of a consensus leader is unlikely, however. So we sit on the fence, hating lawyers and scared of leaders.
Leadership shifts the goal from the individual to the common good. That’s the job of a leader - to make choices for the common enterprise.
Bill Bradley has talked about how “looking to only two sources of solutions - government or market - is like sitting on a two-legged stool. The third leg of the stool - civil society - is missing.” Civil society is missing because it was suffocated by centralized bureaucracy.
Many societies that fail take some important resource for granted and deplete it without understanding the long-term consequences - for example, cutting down all the trees on Easter Island or the early Nordic settlers in Greenland allowing sheep to graze on grass that wouldn’t grow back. America’s greatest natural resource is a culture that unleashed the power of individuals.
The more miserable a man is, the more he dreads every sort of change, lest it may make him more wretched still.