“Big government is the usual suspect for these failures, “ Howard writes. “If only government got out of our hair, many think, everything would work fine. But dreaming of an agrarian republic is not likely to help much. No one I know wants to eliminate environmental protection. Fire codes are a good idea; we wouldn’t want the house next door built of kindling.
“The more important question is not why government is so big—we know in our hearts that any reduction would only occur at the edges—but why, with a few exceptions, it fails in even its simplest tasks. Government has imposed fire codes for centuries, but only our age has succeeded in barring children’s art from school walls.”
Howard’s gripe is not so much with the size of government, per se, nor with its political orientation. His contention is simply that the rule of law has been perverted to mean something very different from what a Thomas Jefferson or John Locke would have understood. Law, rather than being the codification of general principles, has come to mean procedure—precise, technical, mind-numbing procedure.
Certainty, we seem to think, is important to law. Of course it is, you are probably muttering under your breath. It is, after all, the law. But look up at what we’ve built: a legal colossus unprecedented in the history of civilization, with legal dictates numbering in the millions of words and growing larger every day. Our regulatory system has become an instruction manual. It tells us and bureaucrats exactly what to do and how to do it. Detailed rule after detailed rule addresses every eventuality, or at least every situation lawmakers and bureaucrats can think of. Is it a coincidence that almost every encounter with government is an exercise in frustration.
Application of the common law always depends on the circumstances: The accident caused by swerving to avoid the child is excusable; falling asleep at the wheel is not. The most important standard is what a reasonable person would have done. Every principle has exceptions. More than anything else, the common law glorifies the particular situation and invites common sense. It was the common law that developed the jury system, in which a group of peers, not an expert in law, would decide right and wrong in each case.
Instead of a four-year trudge through government process, the Santa Monica freeway was rebuilt in sixty-six days, to a higher standard than the old one. From law’s perspective, the Los Angeles repair project was a nightmare of potential abuse. The process wasn’t completely objective; almost nothing was spelled out to the last detail. When the rule book got tossed, all that was left was responsibility. State officials took responsibility for deciding which contractors would be allowed to bid, and they knew they would be accountable if the contractors