The legislation of outcomes is both an across-the-board political phenomenon and a juristic philosophy. Utility- and environmental regulation are among the most developed fields of outcome-based jurisprudence, a quality that attracted me to the Massachusetts Senate Committee on Energy in the first place. My premier task as its Director has been to design and write an effective version of an outcome-based bill, recently submitted for consideration in 1995, which provides for the introduction of socially responsible retail competition into the electric utility industry. While this project has provided the basis for my interest in outcome-based law, the category is expansive; critical race theory, affirmative action, welfare reform legislation, marketable permits-based regulation, habitual offender laws, ad infinitum, are all attributable to the prevalent faith (curious in a time of exploding criminality) that if you write the right rules, social outcomes can be arranged: society can be scripturally administered.

As the activity of enactment expands into an administrative paradigm, the writing of law is an increasingly incoherent process driven by narrow purposes oblivious to integrity or internal continuity, making legislation an additive, as opposed to an integral, force relative to the larger body of laws. The law is cumulative, expanding toward canon law, an ever-fuller expression and imposition of codified values, an increasingly outcome-based scriptural practice. Viewing the law as an administrative, problem-solving vehicle, legislators regard issues of constitutionality as obsolete barriers to be overcome, rather than as ancient limits beyond which the law is vulnerable to forfeiture of its legitimacy among the public. The myopic nature of this regard forgets that men and women are perfectly capable of rational or irrational disobedience before the law: that their respect must be daily earned.

Without the implicit respect of civil society, the law is impotent. As the words of the law are increasingly expected to solve every social problem, legislators are elected who promise to legislate a desirable society, from laws to promote family values to green incentives for industrialists. Lazily, the public expects such laws to replace the need for an individual's exercise of conviction. The right "incentive" should do the trick. To say, "abortion is wrong; if you choose one, I disown you," is replaced with "abortion is wrong, therefore it should be outlawed." Justified by the "justice" of its outcome, such law neglects the criterion of its internal "justice": its impartiality, coherency, and integrity. In order to orchestrate more basic administrative outcomes, it becomes less basically understandable as law, less committed to jurisprudential discipline, less "lawful"; justified by its result, the law no longer justifies itself. The simpler the promise, the more complex and hazardous to legislate, rendering the administrative promises of the law increasingly hollow to the increasingly disillusioned and infantile public: an unhappy fact evinced by their concurrent resentment and suspicion of lawyers, legislators, and judges.

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