Do you feel that we suffer from over-regulation in our modern societies? Do you ever feel that the state is intruding into more and more aspects of our everyday lives, attempting to control what we can and can not do or say? Have you ever discovered that you have inadvertently broken a law, even whilst you thought that you were acting in good faith, or responsibly? For example, have you ever experienced that uneasy feeling when being followed by a police car: are we breaking a law? Will we be apprehended for something that we are not even aware of?
It seems that every year, more and more legislation comes into force, covering ever more detailed aspects of our existence, whether it is in the area of road rules and legislation, employment and workplace regulations, health & safety, public liability, schooling and parenting, taxation, and so on… and on! Where on earth does all this stop? How tied up do we have to become, before we as a society say enough is enough?
Laws play an important role in any society: they should be designed to reflect the values and interests of the broader community in controlling or limiting the behaviour of the individual. Without laws, our societies could not function properly, and we would all suffer from the resulting anarchy. However, should not these laws and regulations be the refuge of last resort, rather than first resort, as seems to be increasingly the case?
I have already written about the psychological damage that I believe such petty over-regulation and control induces in people (see “Communism’s Most Expensive Legacy”), from my observations of the post-Soviet societies in Central and Eastern Europe. It encourages an abrogation of personal responsibility, relying instead on an increasingly pervasive legal protection from the “State”. We see symptoms of it all around us, from claims that “The government should do something” to an increasing willingness to sue someone (anyone), as it “must be someone (else’s) fault”, when something unfortunate occurs. Individuals, private companies and public institutions seem to live in increasing fear about doing or saying anything, just in case some unscrupulous but competent lawyer is able to induce a novel interpretation of an increasingly complex legal system, to bury them in legal costs and claims. Whatever happened to the spirit of the law? These days, it seems that we must become legal experts in the detailed interpretation of the letter of the law instead.
But is this what we want? Does this not result in a society that runs itself through a negative, fear-driven approach to everything? Does it not discourage innovation (after all, that is risky, and we can’t take risks!)? Do we not want a community of individuals who are willing to take personal responsibility for their own actions? Are we not risking this in our “developed” societies? And are we not in real danger of becoming a sclerotic society, tied up in increasingly complex, more wide-ranging and rapidly changing rules and regulations, looking in fear over our shoulders, rather than forward towards any positive vision of the future? Well, to someone who spends so much time in “developing” countries, where the power and organisation of the “State” is less, and individual liberties are greater, I fear that the answer has to be an emphatic “Yes”!
To those who seldom travel outside of the “developed” Western world, this may appear to be scare mongering and somewhat exaggerated. Perhaps so, but surely few could deny the direction that our “developed” societies are taking. Most of us, at some time, have recognised the adverse consequences that this trend has encouraged. It is only a matter of degree. And it is a gradual, pernicious trend: an evolutionary oppression of individual liberties, rather than a sudden revolutionary oppression by the “State”, albeit one that seems to have accelerated in recent times in the fear driven “war on terror” and the knee-jerk reaction that politicians have so readily adopted to the apparent rise in terrorism. It is perhaps only when one has enjoyed and come to expect the relative individual liberties in a “developing” country, that one becomes aware of just how invasive governments have become in our everyday lives in the West.
Before considering whether there is a better alternative to this incessant bombardment of legislation in our everyday lives, it is worth considering other limitations and problems that this approach has (aside from the adverse psychological consequences highlighted above). It is inherently inflexible and expensive. Laws and regulations must be drafted, discussed and enacted. And because they predominantly deal with what is “right” and “wrong”, they are ill-suited to reflect the shades of grey that is life. They attempt to cater for this by having clauses and exceptions, but these just result in ever more complex legislation (to which anyone dealing with taxation and company law can attest). Enormous industries of highly paid and intelligent people are created in interpreting and modifying these laws and regulations, so that they can keep up to date with our rapidly changing lives and societies. It is doubtful that any of this actually creates any wealth in our communities, but it incurs a huge cost to society. And these laws and regulations then need to be enforced. Law enforcement agencies are forever calling for increased resources in order to do their jobs. This is hardly surprising: not only is there more and more legislation to enforce, spreading into every aspect of our day-to-day lives, but it is ever more complex and changing too. And it is imposed on a population that seems to be unwilling to police itself, handing over responsibility for this to the state instead.
So, if we are not to end up as a society of unthinking, irresponsible individuals, driven by a sense of pervasive fear and buried under a mountain of all-pervading regulation and legislation, what is the alternative? How are we to encourage individual responsibility whilst at the same time, ensuring that we have a properly functioning society, where the broader interests of the community are not lost to individual freedoms and hedonism? Well, I believe that there is a viable alternative, but it is not a ‘quick fix’ (as so much legislation is regarded), nor is it simple. But ultimately, I feel that we will have no choice. And just as the legal system lies at the heart of the current legislative approach, so too can it play a central role in breaking out of this current impasse. It would be based on the current ‘common law’ approach, where precedence is used to determine whether a particular situation is considered reasonable (and therefore acceptable) or not (and therefore incurring some form of societal imposed penalty). And the use of a jury system (to represent society’s values and interests) could be used to determine what is acceptable and what is not. Progressively, many current laws and regulations could be advisory only, rather than obligatory, with the onus on the individual to consider whether his or her actions in a specific situation are likely to be considered reasonable or not. Ultimate responsibility would therefore lies with the individual once again. They would decide, not an arbitrary or inflexible law or regulation. And although the police would probably still play a central role in challenging behaviours that they consider to be irresponsible, any citizen would (if they cared enough about a particular situation) be free to challenge the behaviour of others. And in all cases, the onus is on those bringing the charge to argue that the accused behaviour is unreasonable. And in order to minimise frivolous cases, whoever loses the case could be required to pay all or part of the court costs, unless the judge or jury agree that there should be specific reasons (such as precedence) why they should not.
Some may say that such a system would be unmanageable, with numerous court cases being brought for every possible eventuality. I do not believe that this would be the case. Much current legislation seems to be enacted to protect the stupid from their own stupidity! But most of us do not need to be told how to conduct ourselves (and indeed, we resent being told what to do or treated like idiots!). Most people in our societies would be happy to take responsibility for ourselves (and this should be encouraged), and would be sensible enough to comply with society’s norms. It is only a small minority of the lunatic or stupid who would end up in court. But society would not need a specific law covering every eventuality, in order to catch irresponsible behaviour. This would not be necessary: if a jury of reasonable people considered that an individual (or organisation) had acted badly, unreasonably or irresponsibly, then they could still be penalised appropriately.
I am not advocating the removal of all legislation. Some is necessary or sensible, where the implications for non-compliance are particularly serious or expensive. But we as a society, need to resist the simple sounding “quick fix” approach that passing a law appears to give. We need to constantly and critically question the need for all these laws and regulations, and be more willing to take personal responsibility for our actions. In life, “shit happens” and we can never avoid all unfortunate eventualities, and it is surely reasonable that we as a society, help those who have been unfortunate. But do we really need to control and regulate every aspect of our individual behaviour? I sincerely hope not, or we are all lost!
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