In his thought-provoking work, Fewer Rules, Better People: The Case for Discretion, Barry Lam presents a compelling case for shifting from rigid legalism to a more nuanced application of discretion grounded in the spirit of the law. Rather than merely critiquing the status quo, Lam provides actionable recommendations for enhancing discretion within bureaucratic frameworks.
Embracing Discretion in Bureaucracy
Lam’s first recommendation is to formally integrate discretion into all bureaucratic mandates:
(1) Embed discretion within top-down directives, facilitating exceptions as needed.
This approach acknowledges a basic truth: no rule can account for every unique scenario without exceptions. Lam argues that street-level bureaucrats should possess the authority to make exceptions in situations where moral considerations are paramount—like recognizing that shoplifting may not warrant jail time or that a minor drug offense does not deserve a decade behind bars. The reality is that rule-makers will inevitably overlook certain exceptions, so we must equip enforcers with selective discretion.
Living with Interpretive Discretion
Lam’s second proposal addresses the reality of interpretive discretion:
(2) Accept and adapt to the necessity of interpretive discretion.
While he admits that this may lead to inconsistencies, Lam argues that embracing interpretive discretion fosters moral and social development. Drawing from personal experience, he appreciates the value of vague rules—like “do chores promptly” or “maintain reasonable order” at home. Although these terms can lead to disputes over their interpretation, they also encourage individuals to reflect on their own boundaries and consider the perspectives of others, a critical aspect of communal living.
Restoring Discretion in Legal Frameworks
Recognizing that the forces to restrict discretion often outweigh those advocating for its expansion, Lam introduces another idea:
(3) Integrate mechanisms that periodically restore discretion to counteract the excesses of legalism, such as earned-discretion clauses.
Such clauses allow individuals who demonstrate sound judgment to gain increased discretion, while placing limits on those who do not. For example, an officer with no complaints about excessive force could be granted more leeway in decision-making than one with a track record of complaints. This system ultimately serves to benefit citizens:
Earned discretion empowers those with good judgment to exercise their discretion when necessary, prioritizing the welfare of the populace over the bureaucrats’ convenience.
Budgeting for Discretion
In line with his previous points, Lam suggests:
(4) Provide all enforcers with a discretionary budget, allowing them to exercise selective, interpretive, or adjudicative discretion within set limits, with the possibility of budget increases for those who demonstrate sound judgment.
This strikes a balance, preserving some benefits of legalism while enabling those with exceptional judgment to bypass restrictive rules:
This framework allows legalists to maintain their approach, while those with strong judgment are not hindered by ineffective regulations.
Accountability in Discretion
However, Lam emphasizes that discretion must be accompanied by accountability. In a strictly legalistic system, those who enforce rules without discretion face no repercussions for applying poor regulations. In contrast, if discretion is permitted, bureaucrats should be prepared to justify their decisions:
(5) Bureaucrats must have, and citizens deserve access to, specific moral frameworks guiding their discretionary decisions to avoid hiring mere rule-followers.
This accountability is crucial, as Lam argues that with discretion comes the potential for mistakes—allowing such latitude should not equate to immunity from consequences:
Discretion carries the risk of poor decision-making; those who wield it must still be held accountable for their actions.
Ethics Boards and Continuous Evaluation
To ensure ethical use of discretion, Lam proposes:
(6) Establish ethics boards to assess discretionary decision-making, providing feedback to bureaucrats and the capacity to remove individuals for patterns of severe moral lapses, even when discretion is legally permissible.
Training for Effective Discretion
Lastly, Lam underscores the importance of viewing discretion as a dynamic art rather than a static rulebook:
(7) Regular training on best practices should be mandatory for those with discretionary authority to ensure decisions are informed by the latest empirical evidence.
Conclusion: The Case for Human Agency
All of Lam’s recommendations aim to elevate institutional effectiveness beyond mere mediocrity. While he doesn’t claim that legalism will lead to disaster, he asserts it is inherently limited. The path to improvement lies in recognizing the significance of human agency, judgment, and the importance of contextualizing decisions rather than enforcing a one-size-fits-all approach:
Yes, legalistic bureaucracies may be preferable to totalitarian nightmares, but that’s not exactly a high bar. Anyone who has navigated a labyrinthine bureaucracy knows just how low expectations can sink. The default excuse—“This is just how the system works”—is a frustrating admission of helplessness.
We need not view human agency as a threat to civil order; rather, we should acknowledge its essential role in cultivating effective governance and empowering those in positions of authority.
In my next analysis, I will delve into the aspects of Lam’s arguments that resonate with me and where I believe his reasoning shines. Following that, I will offer critiques and counterpoints to some of his assertions, culminating in a summary of my overall perspective on his book.
