The Freedom to Use Common Sense
The University Bookman is pleased to present this interview with Philip K. Howard, Vice-Chairman of the law firm of Covington & Burling LLP and Founder and Chair of Common Good, a non-profit institution dedicated to legal reform. Mr. Howard is the author of Life Without Lawyers: Liberating Americans from Too Much Law (Norton, 2009). His other books include The Death of Common Sense: How Law is Suffocating America and The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom.
(Full disclosure: the Bookman editor worked with Mr. Howard at Covington some years ago).
University Bookman: Philip, thanks for taking the time to speak with us. What is the theme of your current book?
Americans have lost the freedom to use common sense in daily choices. Hardly any social interaction is free of legal implications. Because of due process, studies show, teachers have lost control of classrooms. As a result, disorder in schools is an epidemic, stealing from students the opportunity to learn. Legal fear causes doctors to order unnecessary tests, wasting vast amounts of money and resources. In the book, I describe how to rebuild legal boundaries that will restore confidence in daily dealings. For example, judges need to take back control of the courtroom, drawing boundaries of reasonable disputes. Teachers need to take back control of the classroom, etc.
Your earlier work focus on what we have in common as communities. Does too much law interfere with the application of common sense to social problems?
Society needs red lights and green lights; otherwise people creep through the day fearful of being blind-sided. Pressing law down into daily choices creates a kind of free-for-all, in which any angry person can pull the rug out from people with responsibility.
Does the current emphasis on rights in the American legal system inhibit the application of common sense?
Traditional constitutional rights were protections against state power—government can’t take your home away without due process of law. Modern rights allow any individual to use state power to get something for themselves. The modern version of rights prevents officials from using their common sense to balance the inevitably conflicting interests of different groups in society.
Have the courts assisted in this process of legal suffocation you identify?
Current orthodoxy is that judges are like referees, allowing litigants to argue almost anything. This is an abdication of the responsibility to defend social norms, in my view, and has allowed courts unwittingly to be used in ways that undermine responsibility.
There are those that argue that lawyers and law must play a large role in a diverse society such as ours, to ease tensions between groups; what is your view?
In an anonymous, globalized economy, law and lawyers are increasingly important. But this puts more of a premium on predictability in the legal system. The problem with the current sue-for-anything approach to justice is that unpredictability chills normal social and economic interactions.
Regulatory agencies of all kinds have assumed the dominant place in the American legal system. Have such agencies come to replace what you see as the proper role of self-government?
Regulation is essential in an interdependent society—safe products, worker safety, environmental regulation and government oversight are all important. But regulation by micromanagement works as badly as central planning. Regulation works much better, in my view, when it provides general principles and allows for a greater flexibility by officials to try to satisfy the goals of those principles.
Some believe that regulation enhances liberty, because it gives us a clearer playing field of what is allowed. How do you see the connection between liberty and regulation?
Regulation should aspire to set goals and boundaries of what’s required. But those same boundaries should also affirmatively protect an open field of freedom. Regulation is vital—that’s half of what law is supposed to do. But what we have forgotten about is the other half—protecting the freedom of people in all other matters. It’s as if the dikes have burst and everyone wades through law all day.
What role in your opinion does legal education play in over-extending the application of law to all areas of life?
Perhaps the most pernicious aspect of modern legal education is the idea that law should be available to remedy any of life’s disappointments. But law in daily life doesn’t enhance freedom, it corrodes it. People spend their days looking over their shoulder rather than where they need to go. Some students are taught to believe that every accident or life disappointment is an affront to freedom instead of the inevitable consequence of freedom.
So, ideally, how should citizens interact with one another?
Freely! Law should have nothing to do with ordinary life encounters. Unless they transgress knowable legal boundaries, people should be accountable by the judgment of those around them, not in a court of law.
Posted: June 16, 2009 in Interviews.
A Blinkered Life of Burke
Francis Canavan, S.J.
Volume 33, Number 4 (Fall 1993)