All Commentary
Wednesday, August 1, 1973

The Purpose of Traffic Laws

Dr. Shumiatcher is a prominent lawyer in Regina, Saskatchewan, well known as a lecturer, writer, defender of freedom. This article is from remarks before a recent Traffic Safety Workshop sponsored by the Saskatchewan Safety Council.

Liberty is the freedom of the individual — of every person — to make full use of his faculties and move where he wishes, when he wishes, how he wishes — so long as he does not harm other persons when he does so.

This principle is more clearly understandable in the case of our use of motor vehicles than almost anywhere else. On the Sahara Desert or on your own farm or on the Arctic Tundra, you may drive a vehicle as, how, and where you please without regard for anyone else. You are free to maim, wound or destroy yourself if you want to. But what of others?

Here, the law enters upon its appropriate role. The legislator sometimes believes that he has absolute power ever our persons and property. This is not so. The existence of persons and property antedated the existence of the legislator, and his function is only to concern himself with the safety of persons and property against the assaults of aggressors. The function of law is not to regulate our consciences, our work, our trade, our ideas, our wills, our education, our opinions, our talents or our pleasures. The true function of law is to protect the free exercise of my rights in each of these areas against infringement by any other person, and to prevent me from interfering with the free exercise of the same rights by others.

Since law requires the support of force to achieve this object, its lawful domain is properly confined to those areas where the use of force is necessary. Each person has the right to use force for lawful self-defense. Therefore, collective force, which is only the organized combination of the individuals’ force in any society, may be lawfully used for the same purpose, that is to say, for the defense of the law-abiding citizen against the attacks or depredations of the lawbreakers. The question of how far the law is able to go in any particular field deserves the careful consideration of the philosophy behind the role of the law. It requires that we consider the purpose for which the mandatory injunction to perform or refrain from performing a particular act exists and the consequences which flow from that requirement.

Let us take the case for and against mandatory seatbelts. After all, a seatbelt is something which is designed principally to protect the driver of a vehicle against his own errors or faults. Assuming the purpose of the seatbelt is to protect the user alone, as I believe the case to be, then why should the law require an individual to take steps which he, in his own judgment, good or bad, decides he ought not to take. In my view, it is not for the law to compel an individual to save either his neck or his property. If individuals are left to their own devices and find that they suffer as a result of the laws of nature rather than the laws of men for acting foolishly, I believe that ultimately the message will get through to them; they will learn the error of their ways and act more providently in the future.

Has Education a Role?

Education, of course, can be a short cut to learning. It is old hat to say that the public needs more education concerning safety. Everyone seeks more money to educate persons on every conceivable subject from basket weaving to nuclear fission to safety in an automobile. The faith which so many place in the miracle of education can be compared only with medieval man’s faith in the concept of salvation and a life everlasting.

That was an age in which it was believed that faith would create a better and a more moral human being. Education has usurped this role and for at least two generations, we have come to believe that if only people were better educated, if only they knew more and studied more and if only they learned more of the facts of the world about them, they would become better, more moral human beings. War and conflict would disappear from our society and we would forever live in peace and harmony with our fellow man.

Of course, we know that this is not so. Never before in the history of the Western world have so many billions of money been spent in erecting the great temples dedicated to education in which modern man worships. The result has been not to produce graduates from our schools and universities morally superior to others, or better human beings or more peaceful citizens. Quite the contrary. There is less concern for morality today, less genuine understanding of man’s nature, and less peace in our homes, our cities and our society generally, than ever before, whatever the educational attainment of the public might be. To regard education as somehow pointing the way to a new millennium — a more reasoned attitude among individuals or a better mannered performance by drivers upon the highway — is to pin one’s hopes on a hollow dream.

If education will not secure better manners on the highways, then will slogans do it? It’s all very well to buy and paste those bumper stickers that say, “The life you save may be your own” or” Defensive driving is the thing.” But I suggest that these mean virtually nothing. What really matters is what goes on in the mind of the individual driver and what choices he makes.

We Love our Cars to Death

Perhaps the truth is that people do not really wish to avoid death on the highways at all. In the preface to his play, Man and Superman, George Bernard Shaw suggests that man is really in love with death. He says that man spends more thought in learning how to kill, how to destroy, how to maim and wound, how to fashion the lethal instruments of war, than he ever spent in producing or saving life.

If this be so, it is little wonder that the gruesome photographs that regularly appear in the media depicting death and destruction on the highways seem to do little more than the sense of morbidity. Neither they, nor the regular statistical reports of carnage by motorcar succeed in convincing drivers to show greater consideration for other users of the highway neighborhood, or to grow more wary of the perils that haunt it.

We know, from those clever people who collect statistics and assemble them in ways that are designed to impress or shock their readers, that Canada scores high in motor car accidents. In 1969, with 8,100,000 vehicles on the road, there were 5,696 deaths, or 27.0 deaths per hundred thousand of population. The only really industrialized country that racked up a higher score were our friends and cousins to the south in the United States. They were just half a point ahead of us at 27.5 deaths per hundred thousand of population. Australia was pretty high also, at 21 deaths per hundred thousand; but countries like the United Kingdom stood at only 13.6 deaths and France — where I was always of the opinion that the wildest drivers in the world were to be found — showed only 11.3 deaths per hundred thousand of population.

But what of the number of deaths per hundred thousand vehicles on the highway? After all, population is not the important factor here. India has a very large population but very few motor vehicles; Saudi Arabia has a large population with relatively few vehicles but a very large number of accidents — mostly with Cadillacs — so that the population and the death figures in a place like India or Saudi Arabia would not tell us very much about our own situation. In 1969, we witnessed 70.3 deaths per hundred thousand vehicles in Canada. Although the United States death rate from automobile accidents is almost identical with that of Canada upon a per capita basis, there were only 55 deaths per hundred thousand vehicles in that country, compared with our 70. The United Kingdom had 59 deaths per hundred thousand vehicles, and France produced only 6 deaths per hundred thousand vehicles as compared with Canada’s 70!

In the light of these figures, and having heard all of the pleas for an active educational program and all of the appeals for safety precautions on our highways, do we think that anything will really be altered by these programs? I have the impression that the message thus far has been that if we would only have fewer accidents we would be much better off.

What of our Standards of Performance?

If we really wish to improve the dismal record of performance on the highways of this country, it seems to me that we must examine our conduct and our performance and our habits there from the same point of view that we ought to be examining our activities in other fields — in the trades and occupations in which we engage, in our business practices and in our professions, and indeed, in our sports and our recreational activities. The standards which we have set for ourselves in this country in each of these fields have fallen abysmally low. For we have abandoned our search for excellence in our trades and occupations. What has become of our fine craftsmen of yesterday? Our workers in wood and silver and precious metal; our builders, our mechanics, our plumbers; those who produce the goods and offer their services to the public to meet human needs? What has become of their standards? How much can we rely upon their craftsmanship? How much are they concerned with quality?

Driving is an occupation like other occupations, and indeed it is the fulltime job of the taxi driver, the bus driver, the long-distance trucker. What are their standards of performance? And to this question, I think our experience and observation must tell us that, as in other fields, they are declining. For we are rapidly abandoning our search for excellence in our trades and our professions, and those who once prided themselves for their capacity to produce at the highest level now have given over their efforts to other goals.

The name of the game today appears to be to do the least to get the most. To give as little and to take as much as possible, and excellence and quality be damned. You might consider applying that slogan and those words to driving on the highway. Take as much as you can and give as little as you can — and the other fellow be damned.

Compulsion Produces Mediocrity

What is most interesting to me is that, as the standards of personal excellence decline, we find that governments at every level, federal, provincial and municipal, are moving to fix the standards for the activities of men and women engaging in their businesses and professions with the naive expectation that this will improve human performance. Everything, from minimum wage laws to the manner in which doctors are required to make their reports in quintuplicate for medicare commissions, is coming to be governed by laws and regulations. The result, of course, is inevitable. Where the big stick is wielded, and government fixes minimum standards, these eventually become the maximum standards, and all who are forced to adhere to them are repelled by the concept that their performance is determined, not by the individual’s capacity or motivation, but by the sanctions of force.

The burdens and responsibilities that normally rest upon the individual to perfect his techniques and to give a fair day’s work for a fair day’s pay, and to produce a result in which he himself takes pride because of his craftsmanship and knowledge, these are being assumed by the state which claims a peculiarly omniscient capacity in the field. Government now undertakes to fix standards, to penalize those who do not measure up to them, and to make certain that each citizen gets “full value for his money.” But I never knew a government that was able to fix a leaky faucet, or cut a head of hair, or grow a stalk of wheat, or milk a cow or repair a broken watch. And what is more, it seems to me that when the state holds the big stick over the individual and tells him what he may or may not do, the result is bound to be fear, and then hostility, and finally the kind of resignation which convinces the individual that if the only recognition he is to receive for a job well done is to avoid the penalties of the law, then whatever he will produce will be a model of mediocrity.

The state, in all its guises, is progressively removing the incentives from individuals to do difficult jobs well. Incentives to achieve are being removed by the imposition of inordinately high taxes. On the other hand, rewards are being accorded to those who do little or nothing in a productive way. Uselessness, neglect, carelessness, ineptitude, sloth —these are being rewarded by policies geared to pay money, grant concessions and distribute praise to those who claim it as their right to take whatever they want by political blackmail if possible, and by force and violence if necessary. The welfare state dictates that no longer is achievement the passkey to reward; no longer is competence, or excellence or skill of any real consequence. Is it any wonder, then, that there should be a falling away from those high standards upon which a worthwhile society must depend?

In the fields of recreation and sports, Canada is fast becoming a nation of cynical spectators, more interested in the spectacle of violence than in the skills of the game, be it played on the football field or on the ice.

You see, the characteristics that we demonstrate in our work and at our professions, in our games and sports and as spectators, are carried by us into the highways of our land and over all the byways of our lives.

Compulsory Insurance

The craftsman, who isn’t much interested in excellence on his bench, is likely to be equally disinterested in excellence or proficiency or care or good manners as a driver of an automobile. There are fewer craftsmen today because machines take care of the needs of most of us. The man today is rare who feels the responsibility of producing a product with which he can himself identify, because it is his own. So it is that the security that a welfare oriented society provides its citizens by way of protection removes the responsibility of that individual for his own care and well-being. Compulsory state automobile insurance may well be an application of this same principle, leading people to say, “What difference does it make if I crumple a fender or get into trouble on the highway? It really doesn’t matter. I have a government package policy and I only pay $25, or $200 at the very most, and the rest of the damage I do will be looked after by the government. Why should I worry?”

Protecting citizens against their own folly and stupidity condones ignorance and encourages carelessness. I am not opposed to insurance, but I am against compulsory insurance which places no burden or onus upon the individual himself to secure it. If a man carries insurance because the state compels him to do so, he carries it because he is told to carry it. But if he carries insurance because he thinks enough about the importance of his own safety and welfare and the life and safety of others as well, then he has participated in the act of protecting both himself and others. He has taken the first step to take care. That step is capable of leading to other steps — to considering the dangers of high speed, the perils of heavy traffic, the consequences of drinking and driving. It will move him to consider others and to expect others to consider him. He will do so not because he is compelled to do so but because he wants to and knows why — because he has ceased to be an automaton and has become a thinking human being.

It has been said that the English defeated the Spanish Armada in Elizabeth’s time, not on the sea, but on the playing fields of Eton. Whether this be true or false, the fact is that a sense of decency and fair play and of ordinary good manners are essential to any activity in which men and women engage in any number. It is a lack of the ordinary sense of fair play and an ignorance of good manners that, more than any other things, are responsible for catastrophe on our roads and highways. Even lack of skill can be compensated for by good manners. These are personal qualities. They cannot be legislated. On the contrary, paraphrasing Gresham’s Law that bad money drives good money out of the market, so it is my firm belief that legal coercion to do good drives human desires to act fairly out of the social equation.

Those traits that are causing the loss of lives and property on the highways today are the same traits that are making of this great country of ours a place governed by the platitudinous, one abandoned to the mediocre and geared to the performance and ability of the lowest common denominator.

Needed: “Manners in the Motor Car”

We are, most of us, bad drivers. We do not regard it as our duty to improve our skills. We do not take pride in our performance. We do not consider it necessary or even desirable to play the game on the highways. Certainly, though we know a little about table manners, we still have very little interest in road manners. It is high time, I think, that a Dorothy Dix or an Emily Post add to their books on etiquette a chapter or two on “Manners in the Motor Car” — not only when parked, but when mobile.

These are not matters for the law to deal with. So many people entertain the greatest expectations from the mere passage of a law. Laws are printed on paper and bound in books. They may even be read and sometimes studied and memorized. But they do not drive motor cars. It is people who drive. It is they and only they who are or can be responsible. Unless we are willing to withdraw the protection and the support, the direction and the compulsion to which laws are expected to give effect, we as individuals will be reluctant to assume our personal responsibilities. For what we are witnessing on our highways today is an abandonment of standards of excellence and the renunciation of personal responsibility. This, after all, is only a reflection of the human scene in almost every other place in the land today.

Ours the Responsibility

Why has Mr. Ralph Nader become so popular in these times? It is because he chooses to say that motor car accidents are happening, not because of you or of me, because of our limitations, our ignorance, our ineptitude and our lack of skill. No, it is none of these. It is General Motors and Ford Motor Company and other big corporations who are really responsible for death and carnage on the highways. So Nader likes to make us believe. It is very much like the current attack on the corporate welfare bums that we have been hearing so lugubriously launched by socialist candidates in the current Federal election. It is well to remember that the statists of whatever complexion have always sought out a plausible victim for the public to hate. It is great to reform the whole world so long as one does not have to reform himself. That’s why it is always so popular to find a scapegoat, as Ralph Nader has done in the case of motor car accidents. Of course there are automobile mechanical defects which cause accidents, but I would like to suggest to you, to paraphrase Shakespeare, that:

The Fault dear Brutus lies not in the stars (or in the Plymouths, Buicks or Fords) but in ourselves, that we are underlings.

If it is to be found anywhere, responsibility must be found precisely there — in ourselves.

I have said earlier that the question of improved manners on the highway is not a question for the law. We have a plethora of laws, and a dearth of manners. The Saskatchewan Vehicles Act is two and a half times as thick today as it was twenty years ago and the number of accidents and deaths has increased at five times the rate at which the pages of highway legislation has grown. But there are some things that the law cannot do and that Parliament cannot do. It cannot create a great painter or a fine carpenter or a good tailor or a skillful gardener or a first class driver. Not by an act of Parliament nor by any number of acts of Parliament can this be done.

What laws can do, however — or perhaps I should say what the absence or the repeal of laws can do — is to revive the natural system of rewards for performing excellently, and of penalties for performing negligently or for not performing at all. Unless we are willing to withdraw the protection and the support of those who fail to learn to work or to act creditably, there will be no reason why anyone should acquire any knowledge or exert any effort to perform any act with skill or competence.

We are witnessing on our highways in Canada the abandonment of standards and the renunciation of both excellence and personal responsibility. This, unfortunately, is a reflection of the whole human scene in Canada in this day. I suggest one of the reasons for this is that we have too many laws.

Who is worried about traffic laws today? We have so many laws, that as Lord Darling said, “Men would be great criminals did they need as many laws as they make.”

I am convinced that we really do not need all of those laws. Rather we need men and women who, as individuals, recognize their own personal responsibility to themselves and for themselves. When this is recognized, we shall be more concerned with our own personal conduct than with the modern fetish to do good for others, or to pretend that our real concern is with that anonymous amorphous distant undemanding body of beings we are pleased to call “humanity.”