For purposes of legal research on modern legal theory, quoted below are excerpts from Philip K. Howard’s book, entitled Life Without Lawyers: Liberating American From Too Much Law (2009). I have just finished reading the book today.
A law reformist, Howard encourages debate on his hypothesis that excessive partiality of modern law in favor of individual rights, rather than the common good, stifles and enervates democracy’s goals of fairness, individual freedom, and societal balance.
Excerpts:
Philip K. Howard, Life Without Lawyers: Liberating Americans From Too Much Law. New York: W. W. Norton & Co., 2009 ed., 221 pages.
Lawsuits often have their greatest effect on people who are neither parties to the litigation nor even aware that it is going on. (p. 16, citing Harvard Univ. pres. Derek Bok).
Freedom can be destroyed by tyrants, by lawlessness – and by too much law. (p. 17).
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. (p. 17, citing John Stuart Mill).
Real people, not legal rules, make things happened. (p. 17).
Self-reliance is the ultimate virtue of the free person. (p.178, citing Ralph Waldo Emerson).
Insist on yourself; never imitate. Trust thyself. (p. 17, quoting Ralph Waldo Emerson).
The person of conviction is replaced by the person of caution. When in doubt, don’t. (p. 18).
People take law seriously, even when its application is idiotic and leads to tragedy. (p. 21).
Law readily takes a life of its own, even if inconsistent with the ultimate goals. (p. 22).
The legalistic mind-set is deeply entrenched. People trained to look to rules lack even the idea that they can do what seems right. (p. 22).
Rules cannot make decisions. A book on chess cannot tell you how to win. (p. 22, citing Joseph Raz).
Today we assume unquestioningly that any activity will be more effective if we detail in advance how to get the job done. (p. 23).
The totality of stupid rules and lawsuits has changed our society. In this new legalistic culture, people no longer look inside themselves to do what’s right. Instead, they focus on possible legal implications. What if something happens? How will you justify your decision? (p. 24).
America indeed is in a crisis – a crisis of individual freedom. We have become a culture of rule followers, driven to frame every solution in terms of existing law or possible legal risk (p. 26).
Nothing that’s any good works by itself. You got to make the damn thing work. (p. 27, quoting Thomas Edison).
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. (p. 28, quoting Edward Bok).
This freedom to be yourself – to have personal ownership of your choices – is the greatest gift of the American culture. Self-determination has long been recognized as the surest path to personal self-fulfillment. (p. 29).
The explicit credo of our culture is the belief in the power of the individual. (p. 29).
The scope of law now stifles our freedom of self-invention. (p. 29).
It is spontaneity that makes the moment great. (p-. 30, quoting Ralph Waldo Emerson).
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. (p. 30).
I should be inclined to think freedom is 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 surrender the exercise of their own will. Thus, their spirit is gradually broken and their character enervated. (p. 31, quoting Tocqueville).
We all declare for liberty but in using the same word we do not all mean the same thing. (p. 31, quoting Abraham Lincoln).
The end of law is not to abolish or restrain, but to preserve and enlarge freedom. (p. 33, quoting John Locke).
Our lives are flooded with laws and rules, so many that no one can possibly know them and so detailed that they operate as central planning. (p. 33).
Risk, unfortunately, is inherent in all life choices. Every choice involves risk. Every moment involves risk. Doing nothing involves risk. Risk is just the flip side of opportunity – do away with risk, and we lose all chance for accomplishment. Safety itself is impossible without risk. The question with each choice is to weigh the risks and benefits, not reflexively to avoid risk. (p. 37).
Responsible choices, whether about risk or any other aspect of life, always involve trade-offs. (p. 37-38).
We cannot eliminate risk. We have to live with it, manage it. Sometimes we have to accept: no one is to blame. (p. 47, quoting Tony Blair).
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (p.54, quoting John Stuart Mill).
The validity of enforcing a right hinges on whether by protecting the right of that individual, one protects the common good. (p. 54, quoting Joseph Raz).
Modern rights are not a tool of freedom. They are a form of tyranny, albeit well-intentioned. They allow the rights holder to assert state power for his own benefit, often to the disadvantage of the common good. (p. 54).
It is impossible to achiever justice in any communal activity by looking at the rights one person without considering the effects on others. (p. 54).
Experience should teach us to be most on our guard to protect liberty when Government’s purposes are beneficent. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. (p. 54, quoting Justice Brandies).
Rights don’t allow balancing, at least not in the sense of considering different interests. It’s everything for the rights holder, and everyone else gets whatever’s left over. This is a serious impediment to the quest for fairness. (p. 55).
Balance is at the heart of almost every conception of the good society. Every communal activity requires balance. Legislatures must balance demands from every segment of society. Fairness is basically impossible without balance. (p-. 55-56).
Trying to solve the problem by handing out rights doesn’t guarantee fairness – it just pushes the needle to the other extreme, guaranteeing unfairness to the common good. (p 58).
The alternative to absolute right is not absolute discretion. Humans have a bad tendency to see their options as black or white. Authority structures can be far more nuanced than that. (p. 58).
If the judges don’t draw the boundaries of reasonable risk as a matter of law, then pretty soon legal fear undermines our freedoms. Fairness is similarly impossible without the authority to balance different interests. (p. 59).
Distrust of authority is a core value of our culture. Americans believe that freedom means protecting people against authority. (p. 59).
We know from experience that the 10 most frightening words in the English language are “I’m from the Federal Government, and I’m here to help”. (p. 60, quoting Ronald Reagan).
The distrust of authority by liberals and conservatives started at opposite ends of the spectrum, with liberals distrusting business and conservatives distrusting government. But that distinction has blurred with time. Legal shackles are now a reflexive reaction to anyone with authority. (p. 60).
Authority can certainly be abused, but ceding authority to people without common responsibility is a formula for abuse. (p. 62).
Authority is not the enemy of freedom but its protector. Law is not supposed to be a sword against authority. Law is supposed to define the scope of proper authority. (pp. 61-62).
People compete on the basis of reasonableness, not legal threats. (p. 63).
Democracy aspires to balance, not zealotry. (p. 65).
Just as the defenders of laissez-faire hoped to be remembered as the defenders of freedom, but ended up being remembered as apologists for industrial abuse, so too the age of individual rights may be remembered as a period of bullying by using the law. (p. 65).
Our governing philosophy is to strive for the lowest common denominator – a belief that society will somehow achieve equilibrium if it placates whoever is complaining. Our monocular focus on the individual, like our obsession to eliminate risk, makes it impossible to achieve any of our stated goals, including fairness. (p. 65).
The rights revolution was doomed from the start. It didn’t account for a truth of human nature – that people are wired to be self-centered. (p. 65, paraphrasing Reinhold Niebuhr).
We live in an age of unavoidable interdependence. Out interdependence demands not an atomized view of individual rights but a greater sense of social accommodation. Modern society cannot fulfill all its responsibilities if its citizens are grabbing all they can. (p. 66).
Law is too complex to write a rule for every situation. Legal principles that guide social behavior are unavoidably general. Judges in the particular case must apply social norms to give meaning to those legal principles. (p. 86).
Judges must actively manage the conduct of each case. The most rudimentary requirements of fair justice -- keeping cases on a reasonable time frame, making judgments about how much discovery is needed – require value judgments by the judge. Litigants shouldn’t have to endure a legal gauntlet for years to see if a claim or defense is valid. Judges must constantly draw boundaries – not only on ultimate issues in the case but in getting the case to speedy resolution. Trust in justice is impossible without our constant application of legal values. This is how it works in other countries; in Germany, for example, judges call in parties at the outset of a case and spend hours working through issues to limit the scope of claims and defenses so that the case can get to a fair resolution quickly. (pp. 89-90).
Americans don’t trust American justice anymore. In a 2005 poll only 16 percent of Americans said they would trust justice if someone brought a baseless claim against them. This distrust translates, more or less directly, into a loss of the sense of freedom: American become defensive in ordinary dealings -- for example, 93 percent of Pennsylvania doctors admitted practising defensive medicine. Nor is justice considered reliable to safeguard against misconduct – over 90 percent of Americans in the 2007 poll thought that large corporations often get away with wrongdoing because they have the money to hire good lawyers and expert witnesses. Justice is seen not as the foundation of freedom but as a tool for self-interest. The same 2007 poll also found that 89 percent of American see an increasing tendency for Americans to threaten legal action and lawsuits when things go wrong. (p. 75).
Public trust in justice is not built on legal caps or a better understanding of the probabilities of being sued. Trust can be built only on commitment by justice always to try to keep claims within reasonable bounds. (p. 76).
Under the Sixth Amendment only the jury can convict your of a crime. The jury is our protection against power-crazed prosecutors. But for private lawsuits (known as civil cases), the Seventh Amendment explicitly incorporates common law practice, which divides the responsibility between judge and jury. Juries decide disputed facts -- who is telling the truth, say, or who ran the red light. Judges interpret and apply the law in deciding which are valid claims as a matter of law. (p. 80).
Trial lawyers, congregating at the intersection of human tragedy and human greed, have convinced the public that any tragedy is a reason to get rich. (p. 81).
A private lawsuit, by contrast, is a use of the state’s coercive power against another private party. It’s just like indicting someone; it’s just an indictment for money. But lawsuits don’t have the safeguards that apply to prosecutors – no grand jury, no clearly defined criminal statutes. We would never tolerate a prosecutor bringing a baseless charge. Nor would we allow a prosecutor to threaten the death penalty for a misdemeanor. That would be a clear abuse of state power. Why, then, do we tolerate allowing self-interested private parties to invoke legal power unilaterally to threaten the livelihood of other free citizens? (p. 82).
Trial lawyers pretend that they’re Robin Hood, with the modern twist that they keep much of the money for themselves. This modern approach to lawsuits is not about justice – it’s about greed in the clothing of justice. (p. 82).
Judges should rule on the validity of scientific experts; otherwise, juries are swayed by junk science. (p. 84, citing the 1993 US SC decision in Daubert v. Merrell Dow).
The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community. (p. 85-85, quoting Justice Oliver Wendell Holmes).
It is not what I believe to be right. It is what I may reasonably believe that some other men of normal intellect and conscience might reasonably look upon as right. (p. 86, quoting Justice Cardozo).
The role of the judge is to create law within the framework of the law. (p. 86, quoting Israeli Chief Justice Aharon Barak).
A special court is needed in America for medical malpractice claims…A broad coalition has come together behind doing pilots of an administrative court with the following characteristics: judges dedicated to healthcare claims; written judicial opinions applying standards of care rather than jury verdicts; neutral experts rather than hired guns; expedited proceedings with incentives for early settlement; payments of noneconomic damages based on a schedule for different injuries; and mechanisms to compile data to learn from mistakes. (p. 90-91).
In the current system, people see legal damages in the most ordinary encounters and go through the day acting as if they might be liable, thinking: why take the risk? (p. 91).
Culture is deceptively powerful because it operates mainly in undercurrents of social interaction that are felt rather than explicitly asserted. You can tell a lot just in the way people talk with each other. Culture is its own authority. Like a strong tide, the culture pushes people toward behaving in a certain way. (pp. 94-95).
Values don’t come to life without the freedom to assert them. Enthusiasm energizes the entire culture. There’s no enthusiasm, however, without spontaneity and originality. That’s how people develop a sense of ownership of the culture. (p. 96).
Most of us probably think that power is zero-sum game. Either it’s mine or it’s yours. But in successful schools and, indeed, in every successful joint endeavor, that’s not how it works. People are empowered not by securing rights over others but by commitment to a common cause. (p. 115).
A culture may be progressive for a certain length of time, and then stops. When does it stop? When it ceases to possess individuality. (p. 121, quoting John Stuart Mills).
We tend to think of accountability from the standpoint of the affected person, but accountability is profoundly a matter of the group. Camaraderie among employees is the most productive resource any enterprise can have. People row harder if they feel that they’re rowing together. When it clicks, there nothing more powerful than the fellow feeling of people working together for a common goal. (p. 123).
Welcome to public employment in America. There is no accountability in America’s government service or public schools. This is not a secret. Due process, civil service protections, and union contracts put public employees in a virtually impregnable position. Basically, whether you perform well or you perform poorly, you are treated the same. We might as well have sprayed a depressant into the air of public offices. (p. 124).
A common characteristic of public agency culture – particularly in state and municipal bureaucracies – is one of gray powerlessness. People shuffle here and there, going through the motions. There is no pressure to cooperate, to solve problems, to work hard, or to do anything.” (p. 125).
Democracy can‘t do its job unless those people on the ground are free to take responsibility and accountable for fulfilling their responsibility.” (p. 126).
Accountability is the flip side of freedom. You will be free to act on your best judgment only if others are free to judge you.” (p. 126).
It is not burdensome to give reasons when reasons exist. (p. 127, quoting Justice Thurgood Marshall).
Too often in government, we pass laws to fix particular problems of the moment, and then we allow half a century to roll by without ever following up to see what the long-term consequences have been. Folks, the truth of the matter is that despite its name, our present Merit System is not about merit. It offers no reward to good workers. It only provides cover for bad workers. (pp. 131-132, quoting Georgia’s Gov. Zeel Miller).
The pride of a job well done is dramatically enhanced by recognition by others. Humans, at least most of us, long for the approval of others. To be rewarding, this recognition must be earned by genuine accomplishment. A culture without accountability is dispiriting. (p. 137).
To see ourselves as we really are, we need the mirror of other people’s views. Scientists tell us that most people are incapable of accurately judging themselves, because humans are hard-wired by nature to be self-centered. Our founders believed this as well – that a human being was an atom of self-interest. (p. 137).
Inside a legal cocoon, people let their imaginations replace reality. (p. 138).
We learn wisdom from failure much more than from success. We often discover what will do, by finding out what will not do. Probably he who never made a mistake never made a discovery. (p. 138, quoting Samuel Smiles).
Success both for an individual and for an enterprise generally comes after countless adaptations to repeated failures. (p. 138, citing Chester Bernard).
Success is moving from failure to failure without loss of enthusiasm. (p. 138, quoting Winston Churchill).
On the open field of freedom, people push and pull each other constantly. That’s the dynamics of a true society. (p. 139).
Success in a crowded society is not doing whatever you want but, usually, doing whatever you can persuade other people to let you do. (p. 139).
Co-workers constantly judge the performance of people who work with them – about who’s doing the job, and who is not, about who works well with others and whose elbows are too sharp. (p. 139).
The culture we live in and bequeath to our children depends on how we apply our values in daily interaction. (p. 139).
Accountability, not law, is the key to responsibility. Bureaucracy certainly doesn’t get us responsibility. The legalistic mind-set encourages compliance with rules instead of doing what’s right. Legislating individual rights is even worse. Rights promote selfishness, not responsibility. There’s only one clear path to responsibility in social dealing: Let people be free to make judgments about each other. Most people want to do the right thing. It’s a lot easier if you know that everyone is subject to the same oversight. (pp. 139-140).
Prepared by:
Atty. Manuel J. Laserna Jr.
Managing Partner
Laserna Cueva Mercader Law Offices
Founder and Consultant,
Las Pinas City Bar Association, Inc.
Professor of Law (retired), FEU Law
Email - lcmlaw@gmail.com
http://attylaserna.blogspot.com
http://lcmlaw.multiply.com
