Here's A Problem, We Must Do Something
From Common Law Methodology v Law Reform by LJM Cooray (1985)

The "here's a problem, we must do something " mentality and the failure to count the costs

Human problems sometimes can be dealt with through legal reform. There are many problems which can not be legislatively and bureaucratically dealt with. Law can complicate the problem.

In other situations the existing law may give rise to problems. Any legal regime will inevitably raise problems and injustices, given the imperfections of law makers, judges and administrators, given the conflicting and often irreconcilable demands which human interaction create and given the uncertain environment in which humans live.

Reform movements have departed from the fault and other common law principles due to what may be described as the " here's a problem lets deal with it " mentality. The pervasive approach in modern reform " here's a human problem, lets deal with it ". The supporting rationalisations include " the market has failed " or " the market is not performing satisfactorily", "we cannot tolerate this injustice", "this involves discrimination", "this is unfair by minorities", "this state of affairs involves exploitation", "the environment will be affected", "this is not democratic " — and variations on these themes. The key concepts are: inequality — minority oppression — discrimination — exploitation — anti-democratic. When there is a human problem there is a pressing urge to do something about it which means invoking government power involving regulation, bureaucrats and taxpayers' money. This approach is the root cause of the escalating problems which confront western society.

The fault principle and the underlying values and institutions of the common law tradition are in the process undermined. The conflict between common law based on freedom and morality and the problem sought to be rectified in a particular way by law reform is often not appreciated, or considered important.

There is a failure to look at a problem in its total perspective.

Injustice, inequalities, problems and difficulties for minorities (also majorities — but law reformers are unconcerned about majorities) are an inevitable part of life. There are inevitable trade-offs in any situation. Given the imperfections of human nature and the uncertain environment, whatever rule is devised will have advantages and disadvantages.

The weakness in so much of law reform is that it has not proceeded on an evaluation of the existing law — an evaluation of the strengths and weaknesses. This type of evaluation is an essential prerequisite for productive reform. What is required is a legal cost benefit analysis which involves an examination of the strengths and weaknesses of the existing situation and a careful consideration of whether in an effort to plug the weaknesses that exist, more weaknesses are not created in the process.

Meaningful and productive law reform requires an analysis of the strengths and weaknesses of the existing system compared with the strengths and weaknesses of the proposed reform. This requires some imagination in order to anticipate probable weaknesses in proposed reforms.

Much (if not all) law reform proceeds on the weaknesses of the existing law and the anticipated benefits of the proposed reform. There is no focus on the positive effects of the prior existing law and probable problems with the proposed reform. Many of the anticipated benefits fail to materialise and unexpected costs appear. This is an invariable consequence of law reform. The regulationist answer often is to avoid a consideration of whether the reform was misconceived in the first place. The solution is more regulation on the basis that the regulation in the first place did not go far enough.

In an imperfect world, injustice, exploitation and minority oppression are inevitable. An attempt to deal with these problems within the framework of fault and freedom provides methods and avenues of gradually redressing injustice. The wrong turning in western society lies in the attempt to focus on problems of perceived injustice without a sense of perspective.

A sound basis for law and legal interventionism, is the fault principle and the common law methodology. If laws are based on fault and government (executive, legislative and judiciary) observe other basic principles of the rule of law, constitutional limitations are not necessary. Constitutional limitations are an added safeguard given the propensity towards corruption and interference by the State.

Interventionism which is not defensible in the present writer's approach is the interventionism which starts with a problem and then seeks to deal with that problem without a sense of perspective and without a realisation of the ways in which such intervention could cause dislocations in evolving institutions. The result is an overall increase of injustice and decrease of liberty.

A simple common sense factor is that there will always be minorities and injustices. Therefore the focus on injustice and minorities, without a sense of perspective, leads to creation of law in response to the subjective views of injustice and the rights of minorities which are put forward by the politically dominant, with aggression and the nastiness by some. This does not mean that all who support reform are aggressive and nasty, but that they are aggressive and nasty elements supporting many reforms, without which the reforms may not have seen the light of day. Such a process will leave unaffected a vast reservoir of people whose interests are ignored by academia, media and interest groups and who are not dominant in the political order.

There are other adverse consequences of the " here's a problem reform " process. The reformists seek to achieve change through legislation and bureaucratic action which has many pitfalls not foreseen and not understood by the purported reformers. The cumulative effects of the totality of regulations on freedom, the economic cost to the tax payer and business and other side effects are not appreciated. The word "cumulative" in the previous sentence requires emphasis. The reformer focuses on a particular problem and legislates. The cumulative effects of numerous and manifold efforts to deal with problems involve a massive interference with individual freedom and a burden on the individual and business taxpayer. The cumulative effects of regulation are not foreseen by the " here's a problem let's deal with it reformers ". All this has led to counterproductive reform. The private enterprise system has been crippled by the cumulative effects and burdens of regulation and taxation which, among other things, leads to unemployment.

Some of these arguments are summed up by Spencer in The Man versus the State (London 1940) pp 29, 30, 31, 34:

... The extension of this policy, causing extension of corresponding ideas, fosters everywhere the tacit assumption that Government should step in whenever anything is not going right. "Surely you would not have this misery continue!" exclaims someone, if you hint a demurrer to much that is now being said and done. Observe what is implied by this exclamation. It takes for granted, first, that all suffering ought to be prevented, which is not true: much of the suffering is curative, and prevention of it is prevention of a remedy. In the second place, it takes for granted that every evil can be removed: the truth being that, with the existing deficiencies of human nature's many evils can only be thrust out of one place or form into another place or form, often being increased by the change. The exclamation also implies the unhesitating belief, here especially concerning us, that evils of all kinds should be dealt with by the State. There does not occur the inquiry whether there are at work other agencies capable of dealing with evils, and whether the evils in question may not be among those which are best dealt with by these other agencies. And obviously, the more numerous governmental interventions become, the more confirmed does this habit of thought grow, and the more loud and perpetual the demands for intervention.
Every extension of the regulative policy involves an addition to the regulative agents — a further growth of officialism and an increasing power of the organisation formed of officials. ...
He contemplates intently the things his act will achieve, but thinks little of the remoter issues of the movement his act sets up, and still less its collateral issues. ... Even less, as I say, does the politician who plumes himself on the practicalness of his aims, conceive the indirect results which will follow the direct results of his measures. ... Dwelling only on the effects of his particular stream of legislation, and not observing how much other streams already existing, and still other streams which will follow his initiative, pursue the same average course, it never occurs to him that they may presently unite into a voluminous flood utterly changing the face of things.