Philip K. Howard - Reform Philosophy

Reform Philosophy

Howard is focused on how modern legal structures undermine the ability of people to use practical judgment in daily choices. For people who deal with the public, such as teachers and doctors, the effect of too much law can be paralyzing, Howard argues. People who think about legal exposure no longer act on their best instincts, and instead focus on conduct that will provide objective markers in case there’s a dispute, such as the practice by physicians of “defensive medicine.”

The core flaw in the modern law, Howard argues, is the premise that law can dictate correct behavior by specific rules, and can determine the correct course of conduct by objective evidence in a trial. Law in a free society is supposed to set outer boundaries of unreasonable behavior, not be a multiple choice test or an ordeal by trial whenever there’s a dispute. These boundaries of law are supposed to define and protect an open field of freedom, Howard argues—to set “frontiers, not artificially drawn, within which men shall be inviolable” (quoting philosopher Isaiah Berlin). Today, Howard argues, those legal dikes have burst, so people wade through law all day long. Instead of looking where they want to go, they go through the day looking over their shoulders.

Howard argues that the flawed conception of law as a way to compel correctness manifests itself in the assumptions of modern legal orthodoxy:

• Making law too detailed is just a version of central planning—forcing both regulators and the regulated to “go by the book,” whether or not it makes sense. “Zero-tolerance rules” in schools compel principals to suspend young children for pointing their fingers like a gun. The solution, Howard argues, is for law to set goals and general principles, so people can use their judgment within legal parameters, and if there’s a disagreement, argue over what makes sense rather than over formalistic compliance.
• Letting people sue for anything injects fear and defensiveness into ordinary interaction—so that teachers, for example, are told never to put an arm around a crying child. The solution, Howard argues, is for judges to act as gatekeepers of reasonable claims, making rulings as a matter of law to define the boundaries of what people can sue for. Today judges see their job as neutral referees letting litigants claim almost anything. Tort reform—generally limiting claims—can reduce the exposure but does nothing to restore trust that justice will affirmatively defend your reasonable actions. Judges must have the authority to draw boundaries of reasonableness as a matter of law. Otherwise justice becomes a tool for extortion. We would never let a prosecutor seek the death penalty for a misdemeanor, Howard argues, so why do we let a private litigant sue for millions for a minor accident or because the dry cleaners lost a pair of pants.
• The accretion of law, Howard argues, has also paralyzed democracy. Lawmakers add thousands of pages of law every year but rarely take any away. Law has grown, like sediment in the harbor, until it is difficult for government officials to act sensibly, or balance the budget.

The essential paradox in Howard’s philosophy is that authority is essential for freedom. Only when the judge has authority to dismiss an unreasonable claim will people in society feel free in daily interaction to act on their reasonable judgment. Only when the official can use his common sense will government act sensibly, and be able to adapt to practical problems that constantly arise. Only when the teacher has authority to respond immediately to disorder can we build a culture of respect and order in America’s schools. The fear of abuse of authority has driven America to a hyper-legalistic society, which Howard argues causes constant failure and unfairness. Far better to have clear lines of accountability up a hierarchy—to appeal the judge’s unreasonable ruling, or fire the abusive official, than to prescribe in advance their decisions. By putting legal shackles on those with responsibility, Howard argues, we unintentionally put shackles on ourselves.