The 'Here's a problem, we must do something' mentality
The Western Democratic Tradition by LJM Cooray

The pervasive approach in modern reform is " here's a human problem lets deal with it". Other variations include "the market has failed" or "the market is not performing satisfactorily" or "we cannot tolerate this injustice". 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 tax payers money. This approach is the root cause of the escalating problems which confront western society. The west is going backwards when it could be progressing.

Human problems sometimes can be dealt with through legal reform, provided the balance between freedom and individual responsibility is maintained. Modern law reformers have been unconcerned about this balance.

There are many problems which cannot be legislatively dealt with (e.g. homeless children). 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 we live.

There is a fundamental fallacy in "the here's a problem lets find a solution mentality". A focus on a problem without a sense of perspective of all relevant factors has been a cause of a great deal of counterproductive legislation.

There are many other adverse consequences of the "here's a problem reform". Some of the other criticisms of the approach are

  1. that change has been effected merely focussing on the weaknesses and the problems, without an appreciation of the many situations in which the existing law may have operated successfully,
  2. the reformists seek to achieve change through legislation and bureaucratic action which has many pitfalls not foreseen and not understood by the purported reformers,
  3. the law often moves away from fault as the basis for individuals' liability and responsibility, and
  4. the cumulative effects of law on freedom and the cost to the tax payer are not appreciated.

I emphasise the word "cumulative" in the previous sentence. 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 private enterprise system has been crippled by the cumulative effects and burdens of regulation and taxation which, among other things, lead to unemployment. All this has led to counterproductive reform.

Some of these arguments and others are brought together 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 natures 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 organization 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.

In an imperfect world, injustice and minority oppression are inevitable. An attempt to deal with these problems within the framework of values and institutions of the tradition 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. Spencer (quoted above) effectively highlights the problems of interventionism.

A sound basis for law and legal interventionism, is the fault principle. 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 within the old order of the tradition is the interventionism which started with a problem (minorities or injustice) 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 and result in an overall increase of injustice and decrease of liberty.

A simple common sense factor is that there will always be minorities and injustices. 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 pedalled by the aggressive, the politically dominant and the nasty. It will leave unaffected a vast reservoir of injustices of minorities and majorities whose interests are ignored by academia and media and who are not dominant in the political order or are not nasty and aggressive.