Another Proto-Libertarian

Philip K. Howard writes,

Generations of lawmakers and regulators have written so much law, in such detail, that officials are barred from acting sensibly. Like sediment in the harbor, law has piled up until it is almost impossible — indeed, illegal — for officials to make choices needed for government to get where it needs to go.

I might term this sort of thinking proto-libertarianism. A proto-libertarian is someone who, like Peter Schuck, recognizes that government performance falls far short of its promises, yet still believes that government could function effectively at its current size and scope.

In Howard’s case, I would make the following suggestions for climbing further up the mountain of libertarianism.

1. Recognize that it is not only well-meaning government officials who can be prevented from doing the right thing by legal paralysis. Private individuals and corporations also are often prevented from doing the right thing, not only by law but by regulations issued by well-meaning government officials.

2. Consider that legislation may be an inferior form of law not just recently, or occasionally, but usually. Instead, consider the ideas of Bruno Leoni, which suggest that common law that emerges from individual cases represents a spontaneous order, while legislation represents an attempt at top-down control that works less well.

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15 Responses to Another Proto-Libertarian

  1. Greg G says:

    It is certainly true that the common law is an example of spontaneous order. The problem for this analysis is that the piling up of legislative law over generations is also a form of spontaneous order.

    So then, countless voters elect countless political representatives who hire countless bureaucrats to enforce these laws. The situation is further complicated by the fact that many members of the judicial system also influence this process as specific cases are litigated and precedents are set and upset. Every one of these agents is influenced by their own personal interests. The outcome of this process cannot be predicted. It is emergent. Spontaneous order works at many different scales simultaneously. The outcomes of spontaneous order are not always desirable.

    Many people use the terms “emergent,” “spontaneous order” or “bottom up” simply as compliments for processes whose results they like. If you want to argue that more decentralization in government is usually or always better, you can do that. If you do build that argument on some special pleading about spontaneous order, you will be building it on sand.

    • Andrew' says:

      But not all things are equivalent.

      Common law becomes binding after repetition upon repetition and proliferation, not legislative ram-throughs.

      “We have to pass it to find out what is in it” sounds vaguely Hayekian, but it is also the opposite of it.

  2. R Richard Schweitzer says:

    To Repeat:

    In ordinary discourse, the “law” being discussed *not* actually ** **Law **, but rather, Rules of Policy (legislation, ordinances, regulations, and their excrescences).

    Rules of Policy are created to describe, define and delineate a **desired** social order and the relationships necessary to its existence or operation.

    **Law** defines and describes, but does not necessarily delineate, the actual existing social order and the relationships within it, as they have come to be, with changes, over periods of time and experience.

    If particular conduct violates the “norms” of a social order or the “norms” of the relationships within it, an issue of **Law** may be involved.

    Conduct in conflict with legislation, regulation and the other excrescences of Rules of Policy, may be (probably most often are) no more than deviations from relationships or order deemed desirable by some; rather than violations of social or relationship norms.

  3. Ryan Murphy says:

    Howard is a dangerous populist. He effectively wants to throw out rule of law.

  4. Ak Mike says:

    Regarding #2 – Dr. Kling, I have not read the works of Leoni, but as a lawyer practicing for a few decades, I have grave doubts that the spontaneous order represented by the accretion of judge-made law is in fact superior to legislation. Without going into depth on this issue, consider: (a) the tort liability explosion of the last century is nearly entirely based on judge-made law, continuously expanding the limits of liability to what I consider outlandish and bizarre extremes; while on the other hand (b) the Uniform Commercial Code has brought order and rationality to many areas of business law, from a crazy patchwork of judge made law that existed before.

    • R Richard Schweitzer says:

      UCC may not be the best example for your point.

      If I recall correctly, it is principally a *codification*
      of known practices, stemming g in part from the existing Negotiable Instruments Laws, which had been derived from practices as far back as The Law Merchant.

      Codifying LAW is distinct from “designing” relationships or the forms of obligations by Rules of Policy*

      *see earlier post

  5. R Richard Schweitzer says:

    There is more to what Mister Howard has observed.

    While the process began someone earlier, serious problems have been created for the effective operation of our constitutionally delineated mechanisms of our federal government. Those mechanisms, so delineated, were not, and are not, structured for the enormous increase in kinds and objectives of operations assigned to be conducted through them over the past 60 to 70 years.

    Over the last half of the 20th century, a new and separate body of sovereignty and governance, The Federal Administrative State has arisen. All “States” are embodiments of authority; and this authority was created through passive assent and affirmative consent of the public in the politically directed quests by particular interests for particular benefits and ameliorations from burdens, responsibilities and other obligations.

    Most, if not all, of the authorities embodied in the Federal Administrative State are established by legislation and its excrescences through the constitutionally delineated provisions for representation. Any body of authority, a dictatorship, an absolute monarchy, the Town Selectmen, has to have an instrumentality for the exercise of its powers and to give effect to that authority. In the case of the Federal Administrative State, the same constitutional representatives have assigned the functions of the Federal Administrative State to be conducted through, and become functions of the mechanisms of the federal government, regardless of conflicts with, or impairments to, the constitutional delineations of those mechanisms.

    As a result, and as noted, those mechanisms have become overloaded and stressed with the functions of the Federal Administrative State which far exceed their constitutional delineations. The further result is fragmentation, which is already reaching critical levels in fiscal conditions; with evidence growing that the entire system is becoming too big and too complex to manage.

    Elements of those functions of the “State” will “hive off;” such are the indications in the current VA debacle, which will probably be resolved by some form of privatization. Bit by bit, the Federal Administrative State will have to be carefully dismantled. The Federal Administrative State will have to withdraw from the business of providing healthcare (which is not one of the functions of government, but is being conducted through the mechanisms of government). The authorities vested in the Federal Administrative State for economic and social activities will have to be curtailed and reordered to eliminate conflicts with and impairments of the constitutionally delineated mechanisms of the federal government.

    It is not the constitutionally delineated government that is too large, too intrusive, too wasteful, too inefficient – it is the Federal Administrative State in the exercise of its accepted and arrogated authorities that imposes those characteristics upon the many uses it makes of the mechanisms of the federal government.

  6. Ak Mike says:

    Mr. Schweitzer – there is some truth to what you say about the UCC, but only some. The authors of this code did indeed creatively come up with solutions in many instances, especially with respect to security interests. The codification and arbitrary but very practical rules that they came up with have been an enormous benefit to our country for the last half century, mostly unrecognized except by lawyers. We are far better off with this legislation than we would have been if sales, negotiable instruments bills of lading, and so forth had continued to be subject to judge-made law.

    Also, I note that you don’t disagree with my characterization with the metastasizing of tort law liability entirely due to judges.

    • R Richard Schweitzer says:

      AK Mike,

      it would be foolish to disagree with your characterization of discretionary judicial contributions to the condition of tort liability. We are now at the point of “absolute liability without fault.” But discretionary judicial actions are only part of the totality of the contributions from changes in the relationships in the social order; some of which changes have been fostered by interest driven legislation. That is not to derogate the function of the legislative process; but, simply, offering a broader perspective of the factors at play.

      By way of example, we had the continuing sophistication in the developments all forms of risk transfers (insurance – particularly liability insurance) with the concomitant need to identify the obligation of responsibility for the risk and the costs for its transfer.

      To one who participated in the era of development of “uniform” laws particularly the Model Business Corporation Act, and having had some involvement in the efforts necessary for legislative adoption, the recognition and acceptance of specific Restatements of the Law, over emphasis of the contributions of legislators may be a bit naïve.

      Perhaps you may agree that, over something more than the past 500 years, a (if not-the) predominant function “our” legal systems has been the identification, delineation, reconciliation (including enforcement) of obligations recognized and accepted within the social orders extant over those periods of time?

      That general statement must also take into account the “drift” away from that predominant function, including a shifting predominance of functions which has occurred in our own immediate society over the past century and certainly accelerated since my late (age 28) entry to the bar in 1952.

      Perhaps it is that “drift” which should be our primary concern.

  7. Foobarista says:

    One thing this guy needs to realize is the paralysis and stasis he’s complaining about is a good thing to insiders and entrenched players. One thing few big-state fans seem to understand is that Big Government and Big Business ride in the same cart. Big Government is far more easily influenced by Big Business than it is by the occasional election of some guys in Washington (and Big Business has a strong say there too).

    So, if you don’t like Big Business and cronyism, you can’t be a fan of an “activist state”. I suppose you could go whole-Nehru and advocate nationalization of the “commanding heights”, but then, as numerous examples have shown, you’ll get even more awful economic performance – and you’ll still have a relatively rich, powerful elite running things.

    Actual democracy only works if government is small. The bigger it gets, the more bureaucratic it gets, and the more elite-controlled it gets.

    • Greg G says:

      Elites always have an outsize influence on government. The Founders were all “elites” and saw themselves that way.

      Washington was one of the most successful crony capitalists of all time. He became very wealthy by becoming one of the nation’s largest distillers and then pushed through a whisky tax that put small distillers at a huge competitive disadvantage.

    • R Richard Schweitzer says:


      there is no condition of “Actual Democracy.”

      Democracy is a process, not a condition.

      The process can result in “Actual Freedom;” but of course it can produce other conditions; including constraints upon individuals, their actions and in the relations; something short of “Actual Freedom.”

  8. Hunter says:

    Arnold, As to your first point what his book makes clear that the article doesn’t is that he does understand that regulations which are created by the nobody in the title of his book prevent the business or individual from finding local solutions. He’s arguing for outcome based regulation rather than detailed regulation. Ryan Murphy above is somewhat correct in that Philip Howard is arguing that officials should have more leeway. Think of the arguments of giving judges discretion in sentencing vs mandatory minimums. I don’t think giving that leeway is tantamount to throwing out the rule of law.
    With outcome based regulation you would have more conflicts between bureaucrats and citizens end up in some sort of court which would have the effect of creating a common law system. I agree with Arnold in his second point that Howard doesn’t think in those terms, but he should.

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