Liberal Law Takes Freedom Away

It’s amazing how many people look at the current sue-mad society and wonder what’s the problem. It isn’t that hard.

The problem is fairly simple. It is the tangle introduced into the law by powerful government. Today we have the notion of law as the balancing of interests competing with the liberal law of “rights” all gummed up with the forest of adminstrative law that arises out of the enormous reach of government.

President Obama has called for a new era of responsibility, writes Philip K. Howard. It’s a wonderful idea. Just don’t try it out yourself or you’ll get creamed.

But there’s a threshold problem for our new president. Americans don’t feel free to reach inside themselves and make a difference. The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices.

The examples are all around us.

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.

Again. It’s not that hard. These problems are all problems because politicians, acting with the consent of the voters, have injected government power into areas that didn’t used to have government involved.

We have taught people to expect miracles from medicine. So people sue when medicine isn’t perfect. We have created vast bureaucracies to second-guess private actors. And it’s not surprising that teachers need to watch their step. They are acting as custodians of the nationi’s children in government custodial facilities. Of course their every action should be governed by administrative law.

Philip K Howard thinks he has a solution. He just wants to create a zone of freedom.

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.

That’s all very well, but you can’t allow government officials “an open field of free choice.” The whole point of government is that government spending and regulation must be tightly regulated or it will descend into corruption, and spending money for no return.

If you want an open field of free choice then you’ve got to take the government out of it. So if you want teachers to touch children again, you’ve got to scale back government schooling. If you want doctors free of lawsuits you’ve got to take 3rd party payment out of the equation so that doctors have a one-on-one relationship with their patients.

But that goes against the very grain of modern society. The whole idea of modern society is that an educated elite gets to call the big shots on everything, generally through big government adminstrative programs or through big government administrative law.

You can’t have responsibility in that kind of a culture. Instead you get jealously guarded rights and endless second-guessing and punitive lawsuits.

Don’t like the era of rights and second guessing? Then get government out of the way.