Always taking the legal route in defence of 'rights' is no path to freedom

 

BOOK REVIEW: Life Without Lawyers By Philip K HowardWW Norton 221pp, £18.99

CRITICISM OF lawyers is almost as old as law itself, and with its provocative title and an endorsement from Newt Gingrich this book might at first glance appear to fall into that undistinguished genre. But there is a lot more to this book than that.

Very often what lies behind those criticisms is a more fundamental objection to the difficulties created by the legal process and by particular laws.

However, lawyers do not make law: law is made primarily by politicians, who must take the blame or credit for the outcome, even though public opinion sometimes visits the shortcomings of law upon practitioners themselves.

Howard is not, in fact, arguing in this book for an anarchic life without lawyers. He wants less law rather than no law. In his view, law has expanded beyond its appropriate boundaries, infected ordinary classroom decisions, allowed frivolous actions to be pursued through the courts, and clogged up public administration with bureaucracy.

Writing from a US perspective, he places much of the blame for this on politicians, wilting under the pressure of the special interest system that funds the main US political parties.

One does not need to acclaim the more extreme measures advocated in this book (such as dismantling trade union protections, for example) to recognise that Howard has performed an important service in emphasising the limits of law and legal rights.

“Legal rights” are rights created by law and are thus to be distinguished from basic, fundamental or natural rights, which are inherent in the individual.

Some liberal commentators take the view that legal rights are like piped water – they cannot get enough of them. Howard’s analysis is a welcome antidote to this view. He discusses the creation of legal rights in the US which have given free rein to disruptive children, at the expense of the other children in the class.

But in fact rights are more akin to the money supply. One cannot improve public welfare by printing new money or manufacturing new rights indefinitely. The creation of a right involves the creation of a corresponding duty in others, and the limitation of the freedoms of others where they conflict with that new right.

Freedom, Howard says, becomes merely what is left when those with “rights” have exhausted their demands.

This is an uncomfortable but timely message for us in Ireland. For example, in recent years legislation has perhaps unwisely intervened in some detail in the disciplinary processes of schools, creating what Howard would undoubtedly condemn as a legalistic process that must be surmounted to take even relatively minor disciplinary decisions.

Howard’s book is not ultimately a negative condemnation of law. Rather it is an intensely human affirmation of the need for personal judgment, accountability and authority to act effectively – qualities which he sees as stifled by an excess of legal rules.

Howard celebrates the right and duty of the individual, including the individual in authority, to innovate, to live spontaneously, to celebrate his or her own skill and achievement.

Such uniquely human qualities that underpin the ascent of man are the antithesis of the checklist uniformity of the rule book that seeks to obliterate a legitimate diversity of approaches, whether to teaching, medicine or public administration.

Richard Humphreys is a practising barrister. His latest book, Countdown to Unity: Debating Irish Reunification, is published by Irish Academic Press