It would be impossible to introduce into society a greater evil than… the conversion of the law into an instrument of plunder.
No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing respect for the law- two evils of equal magnitude, between which it would be difficult to choose.
..if under pretense of organization, regulation, protection, or encouragement, the law may take from one party in order to give to another, help itself to the wealth acquired by all the classes that it may increase that of one class, whether that of agriculturalists, the manufacturers, the ship owners, or artists or comedians; then certainly, in this case, there is no class which may not try … to place its hand upon the law, that would not demand its right of election and eligibility, and that would overturn society rather than not obtain it. Even beggars and vagabonds will prove to you that they have a incontestable title to it.
From The Law By Frederic Bastiat first published in 1850
I cannot avoid coming to this conclusion- that there are too many great men in the world; there are too many legislators, organizers, institutors of society, conductors of the people, fathers of nations, etc., etc. Too many persons place themselves above mankind, to rule and patronize it; too many people make a trade of looking after it.
I am acting with regard to it in the spirit that animated a celebrated traveler. He found himself in the midst of a savage tribe. A child had just been born, and a crowd of soothsayers, magicians, and quacks were around it, armed with rings, hooks, and bandages. One said- “This child will never smell the perfume of a calumet, unless I stretch his nostrils.” Another said- “He will be without the sense of hearing, unless I draw his ears down to his shoulders.” A third said- “He will never see the light of the sun, unless I give his eyes an oblique direction.” A fourth said- “He will never be upright, unless I bend his legs.” A fifth said- “He will not be able to think, unless I press his brain.” “stop!” said the traveler. “Whatever God does, is well done; do not pretend to know more than He; and as He has given organs to this frail creature, allow those organs to develop themselves, to strengthen themselves by exercise, use, experience, and liberty.”
God has implanted in mankind also all that is necessary to enable it to accomplish its destinies. There is a providential social physiology, as well as a providential human physiology. The social organs are constituted so as to enable them to develop harmoniously in the grand air of liberty. Away, then, with quacks and organizers! Away with their rings, and their chains, and their hooks and their pincers! Away with their artificial methods! Away with their social laboratories, their governmental whims, their centralization, their tariffs, their universities, their State religions, their inflationary or monopolizing banks, their limitations, their restrictions, their moralizations, and their equalization by taxation! And now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun- reject all systems and try liberty- which is an act of faith in God and His work.”
From the concluding page of Frederic Bastiat’s The Law, first published in 1850.
.. any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law. To produce the same result for different people, it is necessary to treat them differently. To give different people the same objective opportunities is not to give them the same subjective chance. It cannot be denied that the Rule of Law produces economic inequality- all that can be claimed for it is that this inequality is not designed to affect particular people in a particular way.
It may even be said that for the Rule of Law to be effective it is more important that there should be a rule applied always without exception than what this rule is. Often the content of the rule is indeed of minor importance; provided the same rule is universally enforced.
from The Road to Serfdom by F. A. Hayek
I have had a stronger objection to tort reform than most ‘conservative’ minded. I generally object to legislative interference in the judicial process. I do not like lawmakers adjudicating cases they have not heard, not do I like judges creating laws out of judicial rulings.
Yet it is hard to argue that the tort reform enacted in Texas has not had many of the positive consequences tort reform advocates promised. Lower malpractice premiums has led to thousands of doctors moving to Texas and filling positions in many small towns needing doctors. It has also improved the business climate.
Read the story in The WSJ online.
Why Doctors Are Heading for Texas
By JOSEPH NIXON
Excerpts:
In 2003 and in 2005, Texas enacted a series of reforms to the state’s civil justice system. They are stunning in their success. Texas Medical Liability Trust, one of the largest malpractice insurance companies in the state, has slashed its premiums by 35%, saving doctors some $217 million over four years. There is also a competitive malpractice insurance industry in Texas, with over 30 companies competing for business. This is driving rates down.
The result is an influx of doctors so great that recently the State Board of Medical Examiners couldn’t process all the new medical-license applications quickly enough. The board faced a backlog of 3,000 applications. To handle the extra workload, the legislature rushed through an emergency appropriation last year.
Now many of the newly arriving doctors are heading to rural or underserved parts of the state. Four new anesthesiologists have headed to Beaumont, for example. Meanwhile, San Antonio has experienced a 52% growth in the number of new doctors.
The full costs of large settlements and runaway malpractice suits may never be known. But it is clear that the costs were paid for by consumers through the increased price of goods, by pensioners through diminished stock prices, and by workers through lost jobs. Another group often overlooked is those who are priced out of health care, or who didn’t receive charity care because doctors were squeezed by tort lawyers. Frivolous lawsuits hit the uninsured the hardest.
Texas recently became home to more Fortune 500 companies than New York and California. Things are trending well for the Lone Star State. Anecdotally, we can see that while doctors are moving in, trial lawyers are packing up and heading west. They’re GTC — Gone to California.
Judicial activism was often intellectually softened by proponents who repeated Al Gore’s quest for a “living, breathing” constitution. For those who wished for the courts to pass laws that Congress should but wouldn’t, the concept of a “living, breathing” constitution was an end run around the legislative process that often encumbered a minority power.
The founding fathers were clearly against this concept. Even the amendment process was designed to primarily correct flaws in the original document that would become evident over time. The British law that governed them was not sourced in a single document like our constitution, but was ruled from several documents and ‘customs’. The ‘living, breathing’ source of British law was an oppressive source of irritation that they sought to avoid in our constitution.
Thomas Jefferson warned, “our peculiar security is in possession of a written constitution and that Americans must not make it a blank paper by construction.”
“.. simply to approve the exercise of federal powers that were never delegated to the federal government on the grounds that some strained interpretation of the Constitution allowed them, or simply that the ammendment process was too cumbersome and time-consuming, was hardly different from having no written constitution at all.”
“The evolution of the unwritten British constitution, the colonists had learned, always seemed to move in the direction of more power for the British government and fewer liberties for the colonies and the people. … Americans, in short, gave their lives fighting against a ‘living, breathing’ constitution..”
from “33 Questions about American History You’re Not Supposed to Ask” by Thomas E. Woods Jr.
