The Exaggeration of Rules and Laws
In The Death of Common Sense, Philip K. Howard argues that thepresent day over-reliance on statutes and regulations in America as a meansto create a just and fair society has, in fact, achieved just the opposite.In presenting his case, Howard is actually making a strong point inreminding the reader that the dispensation of justice requires theunderstanding and practice of the spirit of the law. Blind application andadherence to statutes of law will only lead to a system that may end up Howard traces the root of the system to the rationalist movement inthe 1960s that favored statutory law, as it was believed to be moreconsistent and fair: "The credo of this rationalist order, like our lawtoday, was that government should be self-executing and dispassionate. Theidea spawned numerous reform movements, including socialism. It also led tothe invention of modern bureaucracy." (Howard, 27-28) It is evident in thepreceding statement that the spirit behind the formation of statutory lawwas unquestionably praiseworthy. Unfortunately, the solution devised led toa bureaucratic system that only succeeded in loosing sight of that very
And in doing so defeatthe larger purpose for which they were set up in the first place. for fear of facing a 'sexual touching' lawsuit. Takeenvironmental regulation, for instance. Theirony of the situation lies in the fact that the nuns were on a mission tocarry out an act of social justice; the city of New York itself had offeredthe nuns the two buildings at the princely cost of $ 1 each, recognizingthe objective of social justice; but the statutory law that was meant toensure social justice through the protection of human rights would notpermit it! This, then, is a clear case where the 'letter' of the lawweighed far more heavily than its spirit. However, the medium-specific focus means that those comparisons may neverbe made. pollution controls are more costly than they need to be. " (Fiorino) Fiorino is commenting here on the currentenvironmental regulations that deal with water, air and waste as separateissues instead of adopting a more holistic view. Often, such environmental regulations also end up insocial injustice as evidenced by Howard's own example of the 75,000 tonnesof lime sludge on the banks of the Mississippi river that was senselesslyholding up a proposed highway as it was designated as hazardous wastewhereas, in point of fact, lime can actually improve the environment byreducing the acidity of land and water. Here, too, one finds evidence ofwhat Howard describes as the tendency of the government to centralizeauthority by specifying uniform rules and limiting official discretion atthe ground level (34-38). " (Marshall) In conclusion, perhaps the worst malaise of a system that follows theletter and not the spirit of the law is the fear syndrome that it creates,and in doing so, undermines the very promise of justice as in creating asense of security, safety and overall social well-being. OSHA officials began to be viewed as safety experts who could betrusted to make proper evaluations.
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