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Western law is gradually eliminating our ability to apply common sense

Updated: Feb 3

Over the past few decades, there has been a noticeable trend in Western laws becoming increasingly complex and prescriptive. This movement towards hyper-legalization is gradually eliminating the space for individuals and organizations to apply common sense and judgement.

A key driver of this trend is a push towards closing every possible loophole and anticipating every eventuality in the law. This leads to extremely detailed laws that try to dictate solutions, actions and processes for a huge range of scenarios. For example, government procurement policies often stretch to hundreds of pages stipulating elaborate procedures for different situations. Tax codes now run to thousands of pages covering niche cases and exceptions.


While the intent is to promote fairness, transparency and compliance, the resultant rulebooks leave little room for practical wisdom. With such a density of regulation, applying discretion or flexibly interpreting laws becomes difficult without potentially violating stipulations. This discourages people from relying on their reason, intuition and experience. Over time, the tendency to mechanically follow protocol increases even if it defies logic under the circumstances.

Proliferation of Litigation

The proliferation of litigation and its use as a routine business strategy has also led to defensive legalism. Organizations frequently make decisions just to minimize legal exposure rather than based on what makes sense. For instance, a school might suspend a 5-year old for biting his sandwich into the shape of a gun. While lacking common sense, it fulfills the technical guideline. Similarly, the fear of lawsuits has resulted in playgrounds devoid of see-saws and slides, as per safety rules, rending them rather pointless.

Nature of Politics and Public Discourse

The nature of politics and public discourse has also changed in ways that undermine practical wisdom. With hyper-partisanship, policy conversations quickly escalate with opposing sides rigidly sticking to party lines. Nuanced application of ideas to match contexts receives little consideration, replaced by blanket approaches. Social media channels allow extreme voices to dominate discussions and politicians cater to the shrillest critics that allow little middle ground. This creeping extremism leaves little space for reconciling competing viewpoints.

Fear and Control driving the need for more Laws

Deciding when to apply common sense and when to apply the law is becoming less complicated by the day because laws are being put in place to address fear and enact control. For example, it should be common sense that you shouldn't force your views or will on someone else. This becomes more complicated when you look at the history of slavery, racism, homophobia, Islamophobia, Antisemitism and so many other discriminations perpetuated by human beings. It is not just the people that perpetuate discrimination that lack common sense, the victims of discrimination, to a degree, might try to impose their views on others using the law. The problem with this is you can't change the minds of people by using the law to force them to comply against their will. They will actively seek opportunities to express their views in a way they can't be punished by the law. Most of the time this is done anonymously via social media and becomes the foundation of online hate.


Human beings have shown time and time again that they can't be left to their wiles. America using a Nuclear Bomb on Japan was a prime example of why laws are required to keep humanity in check. On the other hand, laws have selfishly been put in place for self centred reasons. For example, most countries have self defence laws aimed at protecting police officers not civilians. It goes like this:

As long as a police officer can prove in the moment he/she/they genuinely feared for their life, they can justify shooting an unarmed innocent person

Common sense would tell you this is a low bar but fear, instead of accountability, wins the day.


There are also examples of politicians abusing the law to force their views on others. In the 1973 Roe v. Wade case, the Court ruled that the Constitution of the United States generally protected a right to have an abortion. This law was eventually overturned in June 2022, by far right wing politicians. Now, rape victims who become pregnant don't have the right to decide what to do with her own body (In most states in America). Is this something that should be decided by law or by common sense? The latter is clearly the common sense answer.

Conclusion

The movement of society towards embracing procedural regularity over situational ethics is understandable. It offers apparent safeguards against inconsistency, bias and abuse. However, prioritizing formal rationality over common sense also has profound implications that we must consider, as it cuts individuals off from relying on their own critical faculties. It sustains the illusion of ethical and moral neutrality while lacking common sense. And it inevitably stagnates innovation. As laws multiply endlessly to address fear and enact control, our ability to apply experience and reason will continue to whittle away. Remember:

Just because the law says something is right doesn't mean it is moral or ethical. Just because there are no laws that say something is wrong doesn't mean they are automatically right.

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