17 January 2013

Have we "jumped the shark" with over-regulation?

 "Rule of Law" now imperilled by too much law

Glenn Reynolds has recently linked to an article by David French entitled "David Gregory and the Decline of the Rule of Law".  In it French asks:

"Can we even speak of the rule of law as a meaningful concept when we combine an explosive regulatory state with near-absolute prosecutorial discretion?”

This link appears as part of seemingly growing series of cross linkages that Reynolds is apparently accumulating for an imminent scholarly piece he says he is putting together on the theme "Due Process When Everything is a Crime".

In the western world we are now not just drowning in a sea of over-regulation from our over-zealous legislatures and bureaucracies. It seems that as well our law making institutions are bizarrely indifferent to the fate that its citizens labour under in the vast byzantine morass of freedom depleting strictures and criminalised triviality we now live with. But society may well have already unconsciously reached the point when the Rule of Law is, for all practical purposes, a laughably theoretical concept ignored as a guiding principle by the majority of the populous. It seems almost trite to observe now that most citizens implicitly recognise the inevitability of committing inadvertant breaches of the law in any ambitious project (opening a business?) or even in doing mundane ordinary human activities (driving a car?).  The Rule of Law, formerly one of the cornerstones of our civilization, may now have been subtlety and insideously replaced by a new dominant paradigm: Do What Can You Get Away With.

We await an event that will crystallise this pre-existing community consciousness and which catches the popular imagination. It seems plausible to envisage some popular form of social media catching fire with indignation at some innocent celebrity prosecuted for some trifling indiscretion, prompting the mass market media to create a cause celebre. If this does finally happen maybe then we can say our modern democracies have "jumped the shark" on over-regulation. We may then have reached the moment, as when the Fonz water ski jumped over a shark in Happy Days, when we can openly acknowledge that the decline in quality is beyond recovery.

There is still a remote hope that, if such a "shark jumping" event ever occurs, from amongst the countless pointless criminal prosecutions, the citizens of the western world may see and acknowledge the folly of what we have wrought with the criminalisation of nearly all conduct. Maybe then we will then have the political conditions in which a serious effort can be made to wind back and seriously reduce the absurd volume of ours laws and regulations.

We might be waiting for a while for that though. It requires brave politicians.

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