James K. A. Smith reviews Cass Sunstein’sValuing Life over at theComment magazine site. It’s a worthwhile read for a number of reasons, not least of which is that it should moveSunstein’s latest up in the queue.

It seems self-evident that everyone should favor “good” regulation, but the trick is getting some consensus on what defines “good” vs. “bad” regulation. A “people” or “person” centered regulation is a good starting place, perhaps. Or as Smith puts it nicely: “Regulation is made for people, not people for regulation.” Maybe what we need is apersonalist revolution in regulation, to say nothing of governance more broadly. A political economy for the people? Yes!

I would insist on some clarifications, though, and note that regulators are often the ones most inclined to get that formula mixed up. Who, after all, will regulate the regulators? (I think the rapper Juvenile asked something like that.) So one distinction I would insist on is that the rule of law is not reducible to or coterminous with the minutiae of regulation. In fact, the latter can often conflict with, rather than support, the former.

A fewother quibbles:

There is little to no recognition in Smith’s reviewthat the level of regulation consistently identified as “good” (assuming we could agree on what that is: something more concerned with “people” rather than “profits,” no doubt), tends to crowd out the moral self-regulation of the virtuous. A much deeper and more significant problem than the technical problem of “good” vs. “bad” regulation is the danger inherent in the conflation of legality, or regulatory adherence, with morality. Smith says, “Government regulations are one of the sorts of ‘nuts and bolts’ that hold together the girders of our social architecture—and are plemented by other sorts of ‘regulations,’ such as social mores and cultivated virtues.” I think this gets things precisely backwards. If anything makes up the “nuts and bolts” of the “girders of our social architecture,” it is the moral constitution of the people, not the paper constitution of the civil government, and much less the reams of industry regulations.

As Tocqueville wondered, “How is it possible that society should escape destruction if the moral tie is not strengthened in proportion as the political tie is relaxed?” Or as Burke put it: “Society cannot exist, unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without.” Maybe we just get the regulation we deserve.

Apart from the moreinterestingmoral and juridicalquestions, however,arethe pragmatic political and economic questions.Regulation, it should be noted, tends also to crowd out growth and innovation.Regulation is a cause of plex ofconcerning numbers regarding startups, e.g. ‘business dynamism.’And of course it matters who is doing the nudging(this is another way of getting at the moral virtue vs. regulatory adherence dynamic). Sunstein, like many smarty-pantses (e.g. experts), are pretty sure they know better than other people and are happy not only to tell them what to do, but increasingly helpthem to do it. Just a little nudge from the loving hand of government is all it takes. Of course, just as businesses and entrepreneurs need to have their activities oriented towards proper ends, so too do bureaucrats and regulators. Public policies, no less than economic models, assume some vision of human flourishing, whether they acknowledge it or not. A key question here is: Who gets to decide?

And sofor all the optimism about “good” government and regulation, let’s not forget the inherently “violent” nature of government, evenwhen it has the veneer of benign regulation.