449. The Pains of Legal Micromanagement with Philip K. Howard

unSILOed with Greg LaBlanc

Does modern society have too many laws? Have we complicated legal codes to the point where we’re suffocating under them and grinding the government to a screeching halt?

Lawyer and author Philip K. Howard is the founder of the nonpartisan coalition, Common Good, which works toward legal and government reform. He’s the author of numerous books like, The Death of Common Sense: How Law is Suffocating America and most recently, Everyday Freedom: Designing the Framework for a Flourishing Society.

Philip and Greg discuss the balance between rigid rules and human discretion, the importance of human judgment in law, and how legal micromanagement and excessive regulation curtails individual agency and practical wisdom.

*unSILOed Podcast is produced by University FM.*

Episode Quotes:

Freedom does not exist without the authority of law

02:42: Freedom does not exist except within a framework of the authority of law. And the authority of law requires human judgment by the people in charge of law, judges, officials, and others. What's a safe workplace, etc.? Whether a seesaw is a reasonable risk? Whatever it is, they have to make those judgments so that people have a sense of where they stand. And then you get freedom back, and people can act again. You no longer have gridlock. But right now we have law, not as a kind of outer fence of a corral of freedom. We have law interceding in daily choices. There's almost nothing you can say in the workplace that doesn't have legal implications. Well, is that a free society? I don't think so.

Has law become counterproductive?

05:53: Today, the law has become, in many areas, counterproductive. I mean, it doesn't make people feel more free; it makes them feel less free, right? And the point of the law is to provide a framework to enhance everyone's freedom, so we're not worried that the water we drink is polluted, that we feel comfortable, that we have free speech, and we can say what we think without getting into trouble. Well, that's not true anymore.

The role of law is to enhance freedom

32:06: We need to have a clearer sense of what the boundaries of our freedom are, and that requires the enforcement of norms that judges and others were not doing. So we have both too little and too much law. Ultimately, my goal—I think the role of law is to enhance freedom—everyone's freedom, freedom from abuse, freedom from dirty water, and to do what humans are good at doing.

Law doesn’t work without judgment

01:01:23: Law doesn't work without the judgment of the people—of the people in charge applying the norms of law. Law is not a speed limit sign that says 55 miles an hour. It's principles like the reasonable person standard or whatever. It's unreasonable search and seizure, free speech. All these things are principles that have to be interpreted by somebody. They're not self-executed.

Show Links:

Recommended Resources:

• Daniel Kahneman
• Mike Rose
• Alexis de Tocqueville
• The American Law Institute podcast
• Joe Klein | Time Magazine
• Ikiru
• Vaclav Havel
• Jeremy Waldron

Guest Profile:

• Faculty Profile at Columbia University
• Professional Website
• Common Good

His Work:

• Everyday Freedom: Designing the Framework for a Flourishing Society
• The Death of Common Sense: How Law is Suffocating America
• The Collapse of the Common Good: How America's Lawsuit Culture Undermines Our Freedom
• The Rule of Nobody: Saving America from Dead Laws and Broken Government
• Not Accountable: Rethinking the Constitutionality of Public Employee Unions
• Try Common Sense: Replacing the Failed Ideologies of Right and Left
• The Lost Art of Drawing the Line: How Fairness Went Too Far
• Life Without Lawyers: Restoring Responsibility in America