THE BOUNDARIES OF LAW
On a hot day in the Cheshire region of England in 1995, an eighteen-year-old named John Tomlinson went for a swim in the lake of a local park. Racing into the water from the beach, he dived too sharply and broke his neck on the sandy bottom. He was paralyzed for life.
The accident could have happened anywhere in America. The lawsuit could have as well. Mr. Tomlinson sued the Cheshire County Council for not doing more to protect against the accident. The council certainly knew about the risks of swimming in lakes. There were three or four near drownings every year. No Swimming signs had been posted and widely ignored for more than a decade. The popularity of the park—more than 160,000 visitors every year—made effective policing almost impossible. Fearful of liability, the Cheshire council had decided to close off the lake by dumping mud on the beaches and planting reeds. But before the reeds could be planted, Mr. Tomlinson had his accident.
As in America, the lawyer’s arguments were passionate. The Cheshire council should have acted sooner, Tomlinson’s lawyer argued, to prevent “luring people into a deathtrap” and to protect against a “siren call strong enough to turn stout men’s hearts.” The lower court accepted this argument and awarded damages because the county obviously knew the danger.
The case eventually made its way up to the highest court in Britain, the Appellate Committee of the House of Lords. Although applying the same common law principles that would apply in an American court, the British court in 2003 rendered a decision almost unheard of in America. It ordered the case to be dismissed. The lead opinion by Lord Hoffmann declared that whether a claim should be allowed hinged on not just whether an accident was foreseeable but “also the social value of the activity which gives rise to the risk.” Permitting Mr. Tomlinson’s claim, the law lords held, would encourage this and other parks to restrict access to normal and healthy activities, affecting the enjoyment of countless people. “[T]here is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty.”
The county’s ineffective effort to prevent swimming, instead of establishing negligence, the law lords held, demonstrated how a misguided conception of justice hurts the public. “Does the law require that all trees be cut down,” Lord Hobhouse asked, “because some youths may climb them and fall?” Lord Scott added, “Of course there is some risk of accidents. . . . But that is no reason for imposing a grey and dull safety regime on everyone.”
The Tomlinson decision exposes a forgotten goal in American law—to protect our daily freedoms. What people can sue for is a key marker defining the scope of free activity. Lawsuits “often have their greatest effect,” former Harvard president and law school dean Derek Bok observed, “on people who are neither parties to the litigation nor even aware that it is going on.” The news in 2005 that a jury awarded $6 million to someone who had broken his leg on the sledding hill in Greenwich, Connecticut, was dismaying to town taxpayers. But it had another, broader effect—other towns soon announced that they would no longer permit winter sports on town property.
Law is vital to freedom. By enforcing norms of honesty, for example, law provides the foundation of free interaction. But law can destroy freedom as well as support it. Our founders were concerned about oppressive laws—they added the Bill of Rights precisely to prevent abuses of state power, even through duly enacted laws. Freedom—by definition, the absence of restraint—can be encroached upon from many sides. Freedom can be destroyed by tyrants, by lawlessness—and by too much law.
“The only freedom that deserves the name,” John Stuart Mill famously wrote, “is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs. . . .” The problem with modern law is not freedom to pursue “our own good”—we can choose where we live and work—but with Mill’s second feature of freedom: doing things “in our own way.” In work, in play, in human relations generally, Americans increasingly do not feel free to do what they think is right, especially where there’s even the slightest possibility someone might have a different view. Law has infected the spontaneity and instinct needed for both accomplishment and personal fulfillment.
We have forgotten life truths that our founders took for granted. Real people, not legal rules, make things happen. Freedom is supposed to afford a near infinity of possible choices. It is this wide range of possibility that gives freedom its power. It is the individuality of choice that gives full scope to the inner resources of each person, and gives each of us the satisfaction of knowing that we made a difference. The high priest of American culture, Ralph Waldo Emerson, saw self-reliance as the ultimate virtue of the free person. “Insist on yourself; never imitate,” Emerson advised. “Trust thyself: every heart vibrates to that iron string.”
Better not pluck that iron string today. Did you check the rules? Will anyone disagree? We have come to believe that law can be a kind of software program for life choices that, with enough planning, can spew out the correct or fair answer to any situation. Free choice has become freedom to do things properly, as if freedom were like checking the right box on an exam. Today Emerson’s trumpet call for self-reliance is as outmoded as his nineteenth-century flourish. The person of conviction is replaced by the person of caution. When in doubt, don’t.
What is needed is not a reform but a quiet revolution. This shift in approach is not about changing our goals—almost everyone I know wants a clean environment, safe workplaces, good schools, competent doctors, and laws against discrimination. The challenge is to liberate humans to accomplish these goals. This requires a sharp turn away from current legal conventions—nearly endless rules and rights designed to avoid decisions by people with responsibility—toward law that restores free exercise of judgment at every level of responsibility. We must remake our legal structures so that Americans are free again to make sense of everyday choices.
LAW EVERYWHERE
Something’s amiss when a girl in kindergarten, all of forty pounds, is led away in handcuffs by police. That’s what happened in the spring of 2005 in St. Petersburg, Florida. Equally strange, the whole episode was taped and shown on national television. There’s the little girl, hair neatly braided, going from desk to desk, throwing books and pencils on the floor, tearing papers off the bulletin board, and methodically destroying her classroom. The assistant principal circles her, arms outstretched as if in a linebacker drill, but assiduously avoiding contact. (Why not just hold on to her? You wonder, watching . . . Is the child a hemophiliac?) The little girl is eventually steered into the principal’s office, where she continues to wreak havoc on the orderly piles of paper and announcements tacked to the wall. Eventually the police arrive and handcuff the five-year-old. She screams. The tape ends.
For as long as there have been schools, teachers have had to deal with unreasonable five-year-olds. Calling the cops isn’t the time-tested solution. Let’s rewind the tape and handle this sensibly. Problem: temper tantrum in kindergarten classroom. Solution: Ask the girl to stop. When she refuses, hold her by the arm, preventing more destruction. If necessary, take her to another room until she calms down. Doing what’s right here isn’t rocket science.
But teachers in America can’t do this. Taking hold of a child’s arm is verboten—touching is taboo, except to prevent harm to others. So a five-year-old ends up in handcuffs.
The rule against touching a student is now pretty much universal in America. One of my daughter’s college roommates, teaching beginning swimmers in East Harlem, was strictly forbidden to hold her students up in the water (to prevent drowning) until she had asked and received explicit permission from each child. She had to ask not once, but each and every time she did it. “May I put my hand on your stomach?” over and over again. The youngsters realized this made no sense. “Why do you keep asking me if you can put your hand on my stomach?” But she had been instructed never to make contact without asking the question.
Physical contact is one of those subjects that’s a little touchy. We can all agree that anyone who has a tendency to act inappropriately around children should be shown the door, or put in the slammer. There are some people, as we learned with the Catholic priest scandal, who have this problem. But a blanket rule against physical contact is itself weird, almost as disturbing as contact that’s a little too friendly. Young children need physical reassurance. Sometimes older children need physical restraint, or least the fear of physical restraint. Otherwise some students will flout the teacher’s powerlessness.
OK, let’s change the rule about physical contact. That’s our instinct whenever we hear stories like this. But what would the rule say? “Appropriate conduct is acceptable”? That should be implicit in a free society. Nor do we need a rule to say that physical abuse of students is forbidden. We know that already as well. The problem is in implementation: How does law sort out what’s appropriate in this or that situation?
The rule against physical contact isn’t really there to protect children. The ban on touching is meant to protect teachers and schools. You bet there’s a rule against any touching—doing that could get you sued. Teachers have had their lives ruined by grabbing hold of a misbehaving child. Josh Kaplowitz, a young college grad in the Teach for America corps, put his hand on the back of a misbehaving seventh grader to make him leave the classroom and was sued for $20 million. The parents even got him criminally indicted. After two years of hell, the criminal case was finally dropped. The lawsuit was settled with the school paying $90,000. Other teachers have had their careers ruined by an accusation not of any sexual misconduct but just of holding on to the child, or, in one case of a music teacher, of positioning a child’s fingers on a flute.
No organization can function effectively unless people can make choices and someone else has responsibility to hold those people accountable. The teacher must be free to do what makes sense, including restraining disruptive students and putting an arm around a crying child. And the principal must be free to make judgments—for example, about the credibility of the student, or about whether he has a queasy feeling about the teacher. Today the principal lacks that authority, and looks to grab hold of a legal lifeline. But how can he prove that the conduct was appropriate, or that the teacher is creepy? So the rule, by default, is zero contact.
This dilemma can’t be fixed with better rules on appropriate behavior. Nor can the problem be solved with years-long legal proceedings, complete with child witnesses and heated emotions. The problem here is with the scope of law. We ask law to do too much. It’s very hard to prove or disprove whether incidental physical contact—a hug, grabbing an arm—is appropriate. Overt sexual misconduct can be proved, but law isn’t good at dealing with the nuances of human behavior. Rules can’t distinguish right from wrong in this context—precisely because rules lack context. Nor can lawsuits—a lawsuit accusing a teacher of inappropriate touching is itself abusive, ruining a teacher’s life just by the accusation. Normal relations between adults and children are impossible under these conditions; the possibility of an accusation has put normal adult-child relations in a kind of deep freeze. The effects ripple into the school culture. Students past a certain age sense the legal fear and start challenging teacher authority. Like poisoned air, law becomes an ever-present factor in school relationships.
We must draw legal boundaries here. The only way to normalize adult-child relations is to remove law from incidental relations: No claim should be allowed without credible allegations of overt sexual misconduct. For conduct short of that, people must have the freedom to deal with people as they think best—for example, by the principal’s reassigning or firing the teacher about whom he has qualms.
Straining daily choices through a legal sieve basically kills the human instinct needed to get things done. Law applied to ordinary decisions leads to bad choices, which leads to more law, which leads to worse choices. Pretty soon law is everywhere, separating people from their instincts of right and wrong.
In 2007, fourteen-year-old Mariya Fatima suffered a stroke in class at Jamaica High School in Queens, New York. But no one called an ambulance for ninety minutes because a rule prohibited teachers or nurses from calling 911 without the principal’s permission. (First observation: People take law seriously, even when its application is idiotic and leads to tragedy.) The rule at Jamaica High School had been instituted because of overuse of emergency calls in run-of-the-mill disciplinary situations, such as fights between students. (Second observation: Law is the culprit here as well. School officials had lost the ability to deal with disorder because law has undermined their authority by, for example, taking away their ability physically to restrain the students.) The principal instituted the rule against calling 911 because, under the objective metrics under which schools are evaluated, these emergencies were considered an indicator of bad management. (Third observation: Law readily takes a life of its own, even if inconsistent with the ultimate goals.)
After the shocking delay in calling the ambulance for Mariya Fatima, Jamaica High School changed its rule. This time it put in a four-step process specifying exactly when 911 could be called: First, the teacher must inform the nurse; second, the child’s parents must be notified, and, if a parent approves, an ambulance can be summoned; third, if the nurse is unavailable, the teacher must inform an assistant principal and principal; and fourth, if the principals aren’t available, the dean’s office is charged with securing proper medical care. (Fourth observation: The legalistic mind-set is deeply entrenched. People trained to look to rules lack even the idea that they can just do what seems right. “By step four,” one teacher observed, “the kid’s already dead.”) When the idiocy of the new rule was exposed by the New York Daily News, Chancellor Joel Klein stepped in and ordered the solution that was obvious from the start: There would be no rule limiting the use of 911.
Rules can’t make decisions, to paraphrase the philosopher Joseph Raz, any more than a book on chess can tell you how to win. But that’s the core assumption of modern law. In an effort to avoid human error, we have created legal structures based on an unspoken premise that correctness can be proved or programmed in advance.
Two great intellectual currents came together over the past century to bring America to this state of hyper-legalism. The first, which grew naturally out of the Industrial Revolution, is the idea of organizing how to do things. Frederick Winslow Taylor, the father of scientific management, preached the idea of creating systems in order to increase productivity. Organization is undeniably essential for complex products; Henry Ford’s assembly lines proved that. Regulatory organization is also necessary to rein in the abuses of big business. Today we assume unquestioningly that any activity will be more effective if we detail in advance how to get the job done. That’s how we’ve organized schools. Instead of an assembly line of machines, schools are organized by a kind of assembly line of rules. Do this and then do that, and then fill out forms that say you did what the rules required.
The second social current, which burst out of the 1960s in an explosion that still reverberates forty years later, is based on a new idea of individual rights: Let any individual who feels aggrieved bring a legal claim for almost anything. Fairness, the thinking went, would be guaranteed by letting people assert their own rights. The abuses of discrimination were long overdue for a remedy and required a dramatic shift in law. But looking at disputes as a matter of individual rights had implications far beyond patterns of discrimination. These modern rights gave undefined powers to individuals to assert claims over other free individuals. Unlike constitutional rights, which shield citizens from state power, these new rights gave citizens a sword against other free citizens. To legal thinkers in the 1960s, however, legal self-help seemed like the perfect solution to the conflicts of a diverse society. Let each defendant demonstrate why his actions were appropriate. Why didn’t we think of this before?
These two great currents of social organization—prescribing rules to specify how to do things and affording individual rights to invoke a legal proceeding—now sweep us along through our day like a mighty river, causing us to cling to legal logic for ordinary daily choices. To stay afloat, we must constantly be prepared to answer this question: Can you show this was done properly? Where the rallying cry for our revolutionary forebears was “No Taxation Without Representation,” today’s cry is “No Decision Without Justification.”
The effort to organize human behavior into legal categories has expanded lawbooks exponentially—more than 70,000 pages of new and revised rules in the Federal Register every year. No activity is immune. Companies develop thick manuals on what not to say and do with other employees—including such helpful tips as “Do not attempt to discuss an employee’s personal problems” and, in interviews, never to ask, “Where did you grow up?” Teachers and principals basically need a law degree. A study in 2004 by Common Good of all the legal requirements imposed on public schools in New York City found more than sixty sources of law—from internal regulations by the city education department to federal laws dealing with immigration and with teacher certification. Suspending a disorderly student for a few days triggers dozens of legal steps and considerations, including, if the parents demand them, formal hearings and several levels of appeals.
All this law has provided ample fodder for late night comedians, who regale us with the latest legal idiocy. No one could make up stories like the first-grade boy in North Carolina suspended for sexual harassment when he kissed a first-grade girl. E-mails fly around the country with stories of crazy lawsuits, many of which never happened but are nonetheless believable in a legal system disconnected from accepted norms of right and wrong. People behave in genuinely bizarre ways. The warning labels that manufacturers plaster all over products are priceless. There’s a “wacky warning contest” every year that gives prizes to the stupidest labels—for a letter opener, “Caution: Safety Goggles Recommended.” My favorite is the fourth-place winner in 2003—a five-inch fishing lure, with three-pronged hook, with the following legend on its side: “Harmful if swallowed.”
The totality of stupid rules and lawsuits does not come close, however, to describing the effects of the modern legal order. It has changed our society. In this new legalistic culture, people no longer look inside themselves to do what’s right. Instead they focus on possible legal implications. What if something happens? How will you justify your decision?
Defensiveness has swept over the culture like a giant wave, drenching daily choices in cold water. Doctors routinely order tests and procedures that they don’t believe are needed—squandering so many billions, according to some estimates, that the waste could provide health insurance to the forty-seven million Americans who are uninsured. Hardly any disagreement in the workplace is far from the threat of a possible discrimination claim. Teachers and principals spend their days filling out forms and “making the record clear,” just to show they’ve been attentive to legal concerns. Authority has been turned upside down. A 2004 survey by Public Agenda found that 78 percent of middle and high school teachers in America have been threatened with lawsuits or accused of violations of rights by their students. Legal fear ripples through society—instead of acting sensibly, Americans do what seems safest legally. Simple pleasures become suspect. In 2006 the school system in Broward County, Florida, banned students from running at recess. Other schools have banned the game of tag.
From time to time reformers try to simplify all this law. But most rules by themselves seem reasonable, and have their own logic. The effort to rationalize them is a little like pruning the jungle. You can cut some back, but then they tend to grow back elsewhere. Once you accept the idea that choices need to be justified through a structure of rules and processes to govern how to do something, the game is lost. Law engulfs our daily lives.
All these rules and rights, we’re told, are just the price of living in a crowded society, necessary to ensure fairness and to make the institutions of society work properly. Maybe things were simpler for our pioneer forefathers, but modern society is diverse, with many different values. Detailed legal codes and processes are needed to keep society in working order.
But the institutions of modern society are not in working order. Schools have been in a steady decline for decades. Reforms are passed almost every year, with little or no effect. Health care is like a nervous breakdown in slow motion. Costs are out of control, leaving millions without insurance and driving companies with obligations to care for retirees to the brink of bankruptcy.
Humans tend to accept legal structures, just as we accept the location of roads and other infrastructure and make our way through the day using whatever paths are available. We still have choices enough in our jobs and in our pleasures to support ourselves and to keep our sanity. But if you zoom away from the earth and look at the patterns of modern life from above, you’ll see a culture in which countless important goals, both private and public, are not accomplished because modern law has diverted sensible choices into self-protection. As our individual freedom wanes, so does our sense of purpose—people increasingly feel they can’t make a difference.
We have it backwards. The legal shackles that frustrate teachers, doctors, and managers in daily dealings are not the inevitable price of a working social order. Modern law is a main cause of the decline of our social order. Schools and hospitals are failing in part because the people within them no longer feel free to make decisions to make them work.
America indeed is in a crisis—a crisis of individual freedom. We have lost the idea, at every level of public life, that people can grab hold of a problem and fix it. We have become a culture of rule followers, driven to frame every solution in terms of existing law or possible legal risk. Gradually, without noticing when it happened, we’ve lost our ability to make the choices needed to run a society.
REBUILDING THE BOUNDARIES OF FREEDOM
The story of America, retold many times, is that it unlocked human potential. You can try anything. You can do it your way. You can . . . is the theme that resonates through American history. This belief in individual power, so different from the feudal cultures of Europe, was forged in the challenges faced by pioneers. Frederick Jackson Turner, in his famous description of America’s character, referred to it this way: “That practical, inventive turn of mind, quick to find expedients; . . . all that restless nervous energy; that dominant individualism, working for good and for evil, and withal that buoyancy and exuberance which comes from freedom.”
Harry Evans’s collection of short biographies of innovators, They Made America, is a testament to the power of personal initiative in America. Orville and Wilbur Wright come alive in their bicycle shop, tinkering with new ideas and rebounding from failures. No longer wooden figures in history books, they compete to achieve manned flight against the world’s leading scientists, not by scientific calculation but by trial and error. They unlock the secrets of aerodynamics by rigging foils on the front of a bicycle and riding around Dayton to see which has greater lift. After they succeed at Kitty Hawk, most people still don’t believe them. The scene at Le Mans racetrack in Paris in 1908, the grandstand filled with doubters waiting to see the Americans fail—dubbed by the French press as le bluff—is itself worth the legend. When Wilbur Wright takes off from the infield, they gasp. When he makes the machine turn—turning in the air around the racetrack oval—it is clear to the French, and to the world, that a couple of bicycle mechanics from Dayton have forever changed human transportation.
Flipping through our national album, the impression that repeats itself is that of the remarkable power of individuals to make things happen. The force of individual willpower practically pops off the page, as if little hurricanes were bottled up inside certain humans. Thomas Edison’s technique was not analytical brilliance—he had only three years of formal schooling—but he was perhaps history’s greatest master of trial and error. “Nothing that’s any good works by itself,” Edison said. “You got to make the damn thing work.”
A few traits of the American brand of freedom stand out. One is a belief in personal resourcefulness. Hugh Aaron tells the story of his father: “At 18, he became a telegrapher when the field was at the cutting edge of communications. He thought his future was assured—until the arrival of teletype machines in the late 1920s. Then, finding he had mechanical abilities, he created a niche for himself by learning how to service the machines. Eventually, in the depressed 1930s, as telephone and radio replaced teletype, he opened an upholstering shop. . . . Seeing the trend, he had learned the trade working days while supporting his family as night manager at the telegraph office.” “I can attribute our successes, small though they were,” Aaron concludes, “to our willingness to adapt and learn again and again.”
Another trait of what is sometimes referred to as “American exceptionalism” is the belief in social mobility rather than status. People can strive to get somewhere. Immigrants understand this better than anyone. “Here a man can go as far as his abilities will carry him,” Edward Bok wrote in The Americanization of Edward Bok. “No traditions hamper him; no limitations are set except those within himself.” Immigrants in fact constantly battled against barriers erected by the establishment, but they were free to do battle, and the marketplace generally decided who won.
Finally, a belief in the uniqueness of each individual encouraged people to find fulfillment in their own interests, skills, and values. Marilyn Whirry, who was National Teacher of the Year in 2000, did not intend to be a teacher. But she was required to teach a class at a high school as a condition of a scholarship. “At first I was grumpy about it. But once I started teaching, something magnificent happened. It was like an epiphany. I found I could relate to people, I found I could excite them and give them some joy of learning. I found they responded to me. And fortunately for me I never left the classroom again.”
Growing up in the South, I remember wondering how people found a sense of purpose in their lives. It was hard to see much originality underneath all those southern manners. It was as if everyone were stamped out of a politeness mold. Then, at eighteen, I was picked out of the summer lawn-mowing brigade at the Oak Ridge National Lab and assigned to be a junior researcher to a small group of scientists led by Eugene Wigner, a Hungarian émigré and Nobel laureate. They explored ideas, all day long, even over sandwiches at lunch—about the effects of nuclear war, about bioterrorism, about economic recovery following disasters. They didn’t care where the ideas came from—even from a college student, and I ended up co-authoring a monograph on postwar economic recovery. Three summers with Dr. Wigner and his colleagues put to rest any doubts I had about my opportunities to reach inside myself and offer something that was uniquely mine.
This freedom to be yourself—to have personal ownership of your choices—is, for my money, the greatest gift of the American culture. Self-determination has long been recognized, by theologians, management experts, psychiatrists, and sensible people of all stripes, as the surest path to personal fulfillment. People with this sense of ownership of daily choices readily acquire a sense of ownership of the community as well; this is seen in the tradition of barn raisings, Grange halls, and Rotary clubs. In America people could make a difference.
But this American exuberance, born of individual drive, is fading. Teachers who feel a sense of ownership of the classroom, like Marilyn Whirry, are increasingly hard to come by. In talks with teachers around the country, the dominant feeling is one of powerlessness. “There’s no correlation with what’s best for kids,” said Phil Anzalone, a teacher on Long Island. “They just tell you, ‘This is what you’re going to do.’ ” The spirit of community ownership has also faded—a 2006 Kettering Foundation report found that many Americans “have become consumers in the democracy instead of its citizen-proprietors.” It’s as if we pulled the plug, and the American spark is now generated mainly by people who, for their own reasons, are highly motivated—immigrants, for example, or people with unique skills and vision, such as Bill Gates, Steve Jobs, and Oprah Winfrey.
American exceptionalism is fading, not because we rejected the explicit credo of our culture—the belief in the power of the individual. Indeed, much of modern law is advanced in the name of individual rights. What changed is that the scope of law now stifles our freedom of self-invention. The American difference is not civil liberties or democratic rights—other cultures have come to have similar legal rights—but the fact that other societies are constrained by the yoke of cultural constraints about people’s place in society. In Europe, Tocqueville noted, people consider themselves a kind of tenant, . . . without the feeling of ownership.” All services and activities of the community, even the ability to respond to immediate threats, are the responsibility of a “powerful stranger called the government.” As they went through the day, and through life, Europeans were constrained by self-consciousness about their place in society.
Americans didn’t have this self-consciousness or sense of personal limits. People just forged ahead. Damn the torpedoes and all that. Charles Dickens, in his travelogue about his trip to America in 1842, is fascinated by this aspect of American character. He describes locomotive engineers speeding far beyond reason, to the glee of the passengers. He is in awe of Boston institutions dedicated to social work, such as the Perkins Institute for the Blind, established with the help of wealthy individuals determined to live their faith. Americans followed their nose, doing what they felt like doing.
Better than any society in history, America shed the baggage of cultural self-consciousness and let people access everything that was in them. Americans acted; they didn’t wring their hands about how to act. They looked ahead, not over their shoulders. It is spontaneity, as Emerson suggested, that “makes the moment great.”
The evil of modern American law is not that it addresses the wrong goals—by and large it addresses the right goals. Nor is it the undisputable fact that law has become absurdly dense—although this surely must be addressed, and I will propose an approach for mucking out the legal stables. The evil of modern law is that it has infected daily choices with a debilitating legal self-consciousness. Americans no longer feel free to do what they feel is right. With his usual prescience, Tocqueville was concerned about taking law down to daily choices:
I should be inclined to think freedom is less necessary in great things than in little ones. . . . Subjection in minor affairs . . . does not drive men to resistance, but it crosses them at every turn, till they are led to surrender the exercise of their own will. Thus their spirit is gradually broken and their character enervated. . . .
This is not a problem of degree. A culture of legal fear is not what our founders had in mind when they created the legal framework for a free society. Law is supposed to support free choice, not impede choices all day long. Slowly but surely, legal self-consciousness is killing our culture.
Here we stand, facing the challenges of the twenty-first century, without any conception of law that actually allows us to harness our personal power to meet those challenges. What’s needed is to rebuild the structure of law that, while sorting out the needs of an interdependent society, revives the one essential resource that made our country so great: the power of individual freedom.
But how exactly? Arguing about the limits of law seems like trying to reverse a tidal wave—that inexorable drive toward what legal historian Lawrence Friedman calls “total justice.” Fairness can readily be couched in the language of freedom. Finding a unifying theory of law that balances demands for fairness against daily freedoms seems inevitably to lead to a legal rule or process for every social interaction. Freedom has always been putty in the hands of people who can link their personal interests with a purported public goal. “We all declare for liberty,” Abraham Lincoln observed, “but in using the same word we do not all mean the same thing.”
Safeguarding our freedom against claims of fairness is not even on the table. Legal scholars who worry about freedom devote about 99 percent of their energy on civil liberties against state power, which, with a few exceptions, are generally alive and well. If pressed, most scholars would probably say that law protects our daily freedoms by providing recourse against wrongful acts—say, breaches of contract, or crimes, or negligent acts. These are indeed vital functions of law.
But is law only a system of enforcement against wrongful acts? Any disagreement, as we see every day, can be framed in the language of legal deprivation. Give Me My Rights! It’s exhausting. This one-sided focus on possible wrongdoing doesn’t acknowledge the need to preserve an open field of freedom so people can live their lives. Freedom today is just whatever’s left over after everyone’s made their legal demands.
Freedom is not supposed to be a swamp of possible claims. Nor does freedom long survive if defined by whatever anyone chooses to argue. Freedom is a zone in which people may engage in “unobstructed action according to our will,” as Jefferson put it. This zone of freedom requires a formal legal framework. This framework, largely washed away by the flood of law in the last century, consists of two principles:
• Law sets boundaries that proscribe wrongful conduct.
• These same boundaries also protect an area for free choice in all other matters.
The forgotten idea is the second principle—that law must affirmatively protect an area of free choice, including freedom from legal interference.
Law must work both ways: It must prohibit defined wrongs, and it must affirmatively protect an area of freedom. Law must provide “frontiers, not artificially drawn,” as philosopher Isaiah Berlin put it, “within which men should be inviolable.” It may seem novel that a judge should stand up and rule, as Lord Hoffmann did, that swimming is a reasonable risk as a matter of law. But that’s how law protects freedom: It defines “the boundaries of the protected domain of all persons and organized groups,” as Friedrich Hayek put it. Protecting an open field of freedom is a core precept of the rule of law. “The end of law,” John Locke said, “is not to abolish or restrain, but to preserve and enlarge freedom.”
This idea has been lost to our age. It is only a modest overstatement to assert that, when advancing the cause of freedom, law today is all proscription and no protection. There are no boundaries, just a moving mudbank comprised of accumulating bureaucracy and whatever claims people unilaterally choose to assert. Instead of legal dikes defining the field of freedom, our lives are flooded with laws and rules, so many that no one can possibly know them and so detailed that they operate as central planning. We are free to do what we want . . . only so long as we don’t wade into this unknowable sea of rules and no one around us disagrees.
This ever-rising flood of requirements and proceedings is accepted as the way things have to be—as if the more law the better. We’ve gotten in the habit of thinking every decision should be justified at the demand of anyone else. Imposing legal self-consciousness on daily choices is not a formula for success, however. It’s a formula for failure. Otherwise sensible people, applying legal logic, somehow come to think that it’s okay to handcuff a five-year-old girl.
We will never fix our schools or make health care affordable, or reenergize democracy, or revive the can-do spirit that made America great, unless American law is rebuilt to protect freedom in our daily choices. Drawing the boundaries of reasonable risk, discussed next, is a good place to start.