BOOK REVIEW / NONFICTION : Has Legal Machinery Killed Our Judgment? : THE DEATH OF COMMON SENSE: How Law Is Suffocating America by Philip K. Howard ; Random House $17, 202 pages


Since early in this century, we have believed that society can be studied like a science, that experts can devise solutions to social problems and that government can enact them into law.

Now comes Philip K. Howard, a New York lawyer and civic leader, to tell us that the premise itself is flatly wrong and that the structure of law we have created to attack social problems is a house of cards that ultimately does much more harm than good. Law is simply not the right tool to improve society, he says.

"Government accomplishes virtually nothing of what it sets out to do," Howard writes in "The Death of Common Sense," a broadside assault on the bedrock of contemporary political and legal thought. "By exiling human judgment in the last few decades, modern law changed its role from useful tool to brainless tyrant."

In Howard's view, though rules and procedures have proliferated wildly, the ills they were supposed to overcome remain unsolved. But now we are burdened with vast bureaucracies whose job it is to promulgate still new rules and try to enforce all of them--an impossible task that focuses all attention on the rules and none on the problems themselves.

In the process, Howard says, we have lost the one thing necessary to any possible solution: judgment. By creating a government awash in procedures and paperwork, we have hamstrung public officials, guaranteed that no one is responsible for anything and ensured a uniformity of failure.

In support of this claim, Howard offers horror story after horror story in which strict adherence to the government's supposedly benign procedures resulted in endless delays and frustration of public purpose.

For example, Mother Teresa wanted to build housing for the homeless in abandoned buildings in New York. But after years of dickering, she was prevented from doing so by the building code, which requires that all new or renovated buildings have elevators, which she didn't have the money to install.

Compare that, Howard says, with the speedy reconstruction of the Santa Monica Freeway after last year's earthquake, a feat that was accomplished by tossing aside all the red tape and focusing on getting the job done.

Of course, red tape to some people--competitive bidding, environmental impact statements and the like--is the very essence of good government to others. Howard says we have gone too far in trying to turn government into a self-executing machine--which it can never be--and that we must restore "common sense" to public affairs.

That's fine as long as your view of common sense coincides with his.

Howard wants to give public officials lots of discretion and only one instruction, "Do the right thing." But if their view of "the right thing" wound up differing markedly from his, I bet he'd be calling for procedures to prevent them from acting in an arbitrary and capricious way.

Law has an inherent and inextricable tension built into it: In the name of fairness, we enact rigid rules that apply in all situations where certain conditions are met. This is what we mean by "a government of laws." But by removing flexibility and discretion, we guarantee that the rules will be applied in some circumstances where they produce the wrong result.

On the other hand, if we avoid hard-and-fast rules and simply tell decision-makers to exercise their best judgment, we guarantee a different kind of unfairness. This procedure works only if you are blessed with very wise decision-makers, which experience shows we are not.

Howard rightly argues that we have placed too much faith in the curative power of law; in particular, he devotes a large chunk of the book to the "rights explosion" of recent decades. But if Howard's own rights and interests were at stake, he would be a staunch supporter of those rules and less likely to see them as mere obsessions.

Still this is a worthwhile book. It challenges fundamental and usually unexplored assumptions and points out that the Enlightenment's promise of wisdom through reason is far from being achieved.

We have placed great faith in the promise of legal machinery to put things right. Howard says that faith is badly misplaced. "Modern law has not protected us from stupidity and caprice, but has made stupidity and caprice dominant features of our society," he writes.

If only the solution were as easy to state.

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