During a recent telephone conversation, my older brother who, incidentally, doesn’t share many of my views, suggested I read a book by Philip K Howard titled, The Death of Common Sense.

The book’s central premise is that our society has begun to fail with our migration from common law, which relies on prior (precedential) decisions and common sense, judgment and personal responsibility, to law based on the principles of rationalism. This paradigm shift has resulted in tome upon tome of complex laws that attempt to “scientifically” cover all eventualities with prescribed protocols designed to prevent bureaucratic abuse. By eliminating caprice, the thinking goes, we can guarantee uniform decision-making for all. Hence, law becomes the ultimate tool for assuring that which we seem to value above all else: Fairness.

You may recall that the rallying cry of the American Revolution was “Give me liberty or give me death.” In France, it was “Liberté, égalité, fraternité.” Now, in Europe, and increasingly, here, equality seems to have become our primary obsession. Laws and protocols have insinuated themselves into every crack and crevice of our lives. Instead of making things fairer, they’ve slowed everything to a crawl, and adherence to protocol rather than problem-solving has become the ultimate goal. It has spawned the concept of “zero-tolerance” that forces teachers and school administrators to suspend little children for being sent to school with an aspirin tablet or a steak knife rather than encouraging the use of common sense and assessment of circumstance, i.e., judgment. Worker incompetence is rewarded with paid leave and endless litigation that only benefits defense lawyers. The examples, on every scale, are endless. Clearly, in law, perfect is the enemy of good.

Changing this mindset and reverting to a legal system that lays out principles and encourages discretion, judgment and human responsibility is difficult. But if we continue down this road, we’ll see that it’s really a back door path to central planning, the utopian dream of every socialist regime that has slogged its way through history, only to fall under the weight of its own inefficiency.

As a physician, I’m bombarded with regulations, even extending to what I must study, whether relevant to my practice or not, by lawyers and regulators who may only have a passing understanding of what I do. I’ve often wished I could turn the tables and require by fiat all corporate and criminal trial lawyers get 12 hours of continuing legal education in divorce law. But that would be petty. If I could make law, though, I’d mandate that all attorneys and politicians read The Death of Common Sense as a prerequisite to being hired or assuming public office. Then I’d require the same of the American public. Failure to comply would result in a penalty—no, a tax—no a penalty.



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