The Death of Common Sense: How Law is Suffocating America
By Philip K. Howard
Summary written by Conflict Research Consortium Staff
Citation: The Death of Common Sense: How Law is Suffocating America, Philip K. Howard, (New York: Random House, 1994), 202 pp.
The Death of Common Sense is an analysis of the excesses and deficiencies of regulatory law and bureaucratic process.
The Death of Common Sense will be of interest to those who seek to understand the origins and development of modern regulatory law and bureaucracy. This work is divided into four chapters. Chapter one describes the Rationalist legal philosophy behind modern regulatory law. Rationalism seeks to draft laws of such perfect clarity and detail that no exercise of individual judgment is required in their application or enforcement. The Rationalist approach to law has largely suplanted the older common law approach, which relies on the common sense application of general legal principles to particular cases. The general result of rationalist legislation is regulatory laws which are both invasive, and ineffective. The author draws heavily on cases and anecdotes to argue first, that the broad scope and excruciating detail of regulations means that their effect if found in almost every aspect of life. Second, the excessive rigidity of modern regulatory law makes it unable to adequately accommodate the special feature of each individual case, and so it is at best ineffective, at worst counter-productive.
Chapter two describes the increasing emphasis on procedural fairness in law. Howard argues that "we have been deluded ourselves into thinking that the right decisions will be ensured if we build enough procedural protection." Complex, time-consuming decision making processes have thus proliferated. Paradoxically, the effect of such procedures has been to diffuse responsibility and authority, to delay decisions often indefinitely, and to support the status quo. Issues of fairness have been reduced to questions of due process, with the result that grossly unfair decisions are often upheld.
Chapter three argues that recent proliferation of entitlement rights, though intended to remedy injustice, has instead produced a "nation of enemies." Entitlement rights for some impose corresponding obligations on others: the obligation to provide wheelchair accessible busses, for example. Such rights create the impression that one group benefits at the expense of another, and so are divisive and promote conflict. Moreover, since rights are taken to be absolute and above compromise, conflicts over rights tend to escalate into a clash of absolutes. If the willingness to compromise is a fundamental democratic value, then the proliferation of rights can further be seen as undermining democracy.
Chapter four proposes a remedy for current regulatory excesses. The rationalist approach to law must be rejected, and the common law approach reaffirmed. Detailed regulation must be rejected in favor of general principles, and rigid decision-making procedures replaced with human judgment.
The Death of Common Sense is a thorough examination of the origins and excesses of bureaucracy. This work is copiously illustrated with cases of regulatory inefficiency, mismanagement, and outright insanity.