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Wednesday, November 30, 2011

The Age of the Busybody

Busybodies. In an earlier, gentler time, every neighborhood had one. Predominantly but not exclusively female in those days, the local busybody was recognized with ease. Although the verb was mercifully unknown, she micromanaged all PTA meetings, gatherings, sales, and affairs whether or not she was chairman or even occupied a seat on the governing board. She notified all neighbors about the proper means and methods of raising their children, managing their households, and directing their spouses. Since she knew more about everything than anyone else, she offered unsolicited commands disguised as suggestions to the community grocer, the resident pharmacist, and the sales managers at the five-and-dime, variety, shoe, and apparel stores. In essence, she minded everyone else’s business.

One other trait of the busybodies stood tall for all thoughtful folks to perceive: They were far too busy minding the business of all within their fiefdoms to mind their own business, to care for their own children, and to manage their own households.

Times are no longer simple and gentle and safe, but the busybody has not only survived but also prospered, become fruitful, and filled every crevice and cranny of the nation. Fifty years ago my father insightfully titled his speech to a San Francisco business gathering as I have this article. He observed that in the years following World War II, busybodydom had flourished like an obnoxious weed, threatening to crowd out the air and light of individual ideas and purposeful personal action, and in this manner destroy the nurture encouraged by stable and essential decisions. The past decades verified Jack Foley’s observation and warning and, unfortunately, we reside today in times dominated by throngs of busybodies.

Rules and regulations, orders and directives, all kinds and kindred of commands direct almost every avenue of our daily lives. Virtually all these directives emanate from busybodies and almost all of them are, or may be, enforced by the power of law; that is, the noncomplying person suffers a penalty, usually loss of liberty or property, occasionally the loss of his life. Our lives today are ruled by force writ large, a force that usually commands far less efficacious outcomes than would result from the free actions flowing from purposive and creative individual conduct.

When we consider legally compelled directives, we blandly think of the tripartite governmental structure of the federal government and the similar political construction of the several states, and we see in theory a legislative branch that enacts laws, an executive who administers those laws, and a judiciary that interprets rules and issues orders based on and about those laws. Myopically we do not see the whole regulatory blight that afflicts us because we overlook several obscured but essential components of law-making. Without limitation, consider the following busybody regulators.

Legislate and Delegate

First, state and federal legislators seldom enact detailed statutory law. Most often they pass broad policy statements and “delegate” detailed rule-making and enforcement powers to an administrative bureaucracy. The critical characteristic of this rule-making and law-enforcing apparatus is that it is unelected, usually unknown, and fundamentally untouchable and ungovernable. While the legislator theoretically oversees the detailed conduct of the administrator, in fact oversight is nonexistent in almost all instances. Hence the common retort to those who disagree with overwhelming and strangling legislation that “you can reject the legislators at the next election” is a sham and a chimera. Legislators come and go, normally after enhancing their own wealth remarkably, but the unelected bureaucratic rule-makers and rule-enforcers remain for a lifetime, ordinarily protected by compulsory civil service “safeguards” and most assuredly made wealthy by huge and untouchable pensions and other emoluments of the office.

Second, concentration on legislators obscures the rule-making and enforcement/enhancement of the executive. In federal terms the president often creates very real and effective restraints on individual rights and conduct by use of executive orders; to make matters worse, these orders are usually hidden from common view and secreted under some sort of “national security” or “rule of necessity” rubric. They may be printed and published but often remain cloaked in secrecy. Many governors possess and use similar powers.

Third, it is all too easy to overlook or forget the myriad municipal and quasi-municipal corporations that regulate the fiber of our lives. Busybodies abound and prosper in local improvement districts, school districts, sewer districts, government-owned and -operated utilities, park and recreation districts, and a Mongol horde of other quasigovernmental entities in addition to the more obvious and long-recognized city and county governments. Each and every one of these institutions possesses and exercises the power to enact and enforce rules that compel or constrain individual human behavior and, more odious, many of these rules are produced in the shadows and are difficult to locate until enforcement suddenly becomes an issue.

Fourth, the day of the judge as a limited dispute-decider has long passed. To a greater or lesser degree, federal, state, and local judges make regulatory law by purporting to “interpret” legislation in a manner not dissimilar to the rule-making and enforcement-enhancing activities of the administrative apparatus. Once again, many members of the judiciary serve for lengthy terms or for life and are seldom sanctioned by the voting public.

Root Causes

A search beneath the surface of this calamitous condition reveals at least two elemental causes. Reining in the busybody requires a brief analysis of each, neither of which is easily recognized nor fully appreciated.

To begin, people are inclined to be busybodies. No one should overlook or deny the infinite variety in human behavior; nonetheless permit some generalizations to illustrate my greater point. We humans tend to egotism, an ingrained belief that we can perceive a condition and prescribe a proper conclusion, and do so much more accurately and appropriately than any other person. In addition we tend to judge ourselves much less harshly than we do others, meaning we are more forgiving of our own mistakes than of the errors of our fellow man.

Busybodydom results from the conceit and concatenation of these everyday human traits. It causes perfectly ordinary—that is, flawed—persons to see what they perceive as a problem requiring a solution and to decide on the proper process by which to resolve the problem. More than that it encourages the observer to believe that his is the only suitable method and disposition, and it compels him to seek out others to join him in foreclosing any alternative process or solution by the force of law.

Rules and Orders

Second, one must appreciate the essential and elemental differences in types of legal commands, one of which encourages the current State’s incipient tendency toward busybodyness. Legal philosophers commonly divide legal commands into two categories: rules and orders. Such philosophers may disagree that rules and orders comprise the sum of human law, but these general categories illustrate the larger point of this essay.

In simple terms rules refer to statutory or regulatory enactments by legislatures and other similar governing bodies, which seek to identify a situation or condition, command by force of law an express outcome in all such and similar contexts, and prohibit and penalize any alternative individual or group action or outcome. On the other hand, orders simply refer to the legally enforceable decision by an arbiter of a dispute chosen by specified individuals or entities.

Even given the blurry line between rules and orders, appreciated only by the jurisprudential philosopher, this primary distinction illustrates one of the reasons that modern busybodies truncate human choice and inhibit productive individual action. Rule-making attempts to foresee most or all human interactions and to prescribe in advance all legally acceptable outcomes. Ordering conduct differs because it uses (or should use) the force of law only in a more limited fashion, purporting to decide a particular dispute between identified human beings or groups, and designing an outcome limited to those persons and others in direct relationship with them. The more limited the legal intrusion, the more open-textured the law. Orders tend to restrict creative human behavior less than do rules because orders arise in single instances (although English and American courts do tend to decide like cases in a similar manner under doctrines labeled by the quaint Norman-French-Latin phrases res judicata and stare decisis), where 1) discrete and specific facts can be assessed and evaluated and 2) only the individuals directly or closely affected (all of whom generally are able to participate in the proceeding) are governed and legally limited by the outcome.

Rules, to the contrary, attempt to forecast and prescribe limited permissible outcomes for all persons in all cases without the benefit of individual factual evidence and express relevant participation. Yet human beings are limited in their ability to forecast correctly; indeed we have trouble even figuring out how history has produced our current conditions. As a result, rule-making tends to stymie human action and the improvement of civilization by foreclosing individual choice.

In fact the beauty of the traditional Anglo-American common law lies in its primary reliance on orders and its reluctance to employ an abundance of rules. The open legal texture enabled creative individuals to compose new and untried outcomes that, in a given number of instances, resulted in a much better life not only for the persons directly affected but also for a multitude of other beneficiaries. Thus individual conceit and the surfeit of rules join and promote a more closed society. Consider the result: an obvious diminution of human freedom and restraint on free individual action to solve problems. Empirically, the busybody inhibits the improvement of the general human condition. Why does that happen? Simply because each competent actor is more able to make better decisions affecting his person and his future than is any other individual. Free and purposive human beings effect better results when they have something personal at stake, and no person is sufficiently foresighted and wise to recognize all aspects of a problem and all possible outcomes.

Further, the age of the busybody contains a moral component and induces a moral decline of the individual. One grows by choosing, by selecting between alternatives, and by enduring the burdens of his poor choices as well as enjoying the benefits of his better selections. The busybody foreordains decisions by rule of law and in so doing diminishes the choice-making opportunities and growth available to his fellow members of society. In this fashion the busybody stunts individual growth and deprives the larger society of the benefits of unfettered productive and constructive human action.

Copyright Ridgway Knight Foley Jr. 2011.

  • Ridgway K. Foley Jr. is a litigation lawyer who is passionate about individual and economic freedom, and has authored numerous scholarly articles on related subjects.