Barry Lam’s book Fewer Rules, Better People: The Case for Discretion presents a compelling case for the use of discretion in various social contexts. However, like any scholarly work, it is not without its shortcomings or counterarguments that warrant consideration.
Lam champions the idea that discretion allows individuals to leverage localized knowledge, aligning with the foundational insights of economist F. A. Hayek. Yet, another Hayekian concept could significantly bolster Lam’s arguments. Hayek drew a crucial distinction between law and legislation, terms that he did not see as interchangeable. In his exploration of these concepts in Law, Legislation, and Liberty, Pierre Lemieux articulates this distinction:
Law consists of rules of conduct necessary for societal maintenance. Historically, law predates legislation, viewed as something to be discovered rather than changed by a “legislator.”
According to Hayek, law is an organic construct, evolving over time and not merely the result of deliberate human design. It preserves societal order without aiming for specific outcomes. In contrast, legislation is a systematic attempt to create explicit rules intended to achieve particular goals. Lam often conflates these concepts by referring to laws primarily as legislation.
This may appear to be a mere semantic issue, but the distinction is significant. For instance, early in his book, Lam asserts:
Big businesses, small businesses competing with them, community organizations, youth sports, and other large group management endeavors necessitate written rules and their enforcement, rather than relying solely on informal exchanges built on trust.
It is incorrect to claim that these forms of social organization solely require written rules instead of informal norms. Lam’s phrasing suggests that written rules replace these organic interactions, which is misleading. Written regulations do not substitute for social norms; rather, they should complement and reinforce them. The effectiveness of written rules heavily depends on the robustness of the underlying informal norms. This is why low-trust societies often experience poor outcomes; no amount of legal codification can compensate for the absence of foundational social order.
Neglecting the law-legislation distinction may also pose risks to Lam’s argument. He contends that bureaucrats, enforcers, and citizens should comprehend the rationale behind rules, embodying the “spirit of the law.” However, the rules stemming from spontaneous social orders—true laws—are not crafted through rational constructions and articulated reasons. Hayek, among others, has argued compellingly for the necessity of adhering to rules whose purposes may not be immediately understood or rationally justified.
Many societal rules fall into this category. Hayek succinctly captured this in The Fatal Conceit by stating, “If we ceased to act on matters for which we do not know the reason, we would likely find ourselves in dire straits.”
A potential defense of Lam’s work is that he explicitly addresses the rules of bureaucracy—the written, constructivist guidelines of organizations striving to achieve specific outcomes. This perspective positions Lam’s book as a discourse on legislation rather than law in the Hayekian framework. Thus, one might argue that Lam’s text does not advocate for a carte blanche disregard for law in the broader sense. However, this crucial distinction is not clearly articulated in the book, leaving readers unfamiliar with the nuances at risk of misinterpretation.
This distinction becomes even more critical if Lam aims to resonate with audiences influenced by thinkers like Edmund Burke. In the concluding remarks of Lam’s work, he urges us to transcend the limitations of legalism:
Yes, [legalist bureaucracies] are preferable to the worst nightmares envisioned by political theorists. They surpass famines, tyrants, civil wars, and the absence of civil institutions. But that’s a remarkably low standard. If you’ve ever navigated a sprawling bureaucracy, encountering one rigid bureaucrat after another for a permit or medical approval, you know just how low our expectations are. The refrain is always, ‘This is the system, these are the rules, and we must adhere to them.’
But do we truly have to? Must we allow human agency to be viewed as a detrimental force in civil society, eroding the very institutions we depend on? Instead, we should regard agency and its virtuous application as essential across all professions, particularly for those in positions of authority.
While this sentiment is undoubtedly stirring, it is crucial to heed the wisdom of intellectual traditions associated with figures like Burke and John Selden, which advise caution in the face of calls for systemic disruption in pursuit of lofty ideals. This perspective suggests that when one inherits a stable and functional system, they should exercise significant caution—even pessimism—against the allure of radical change.
Preserving social order is far easier to dismantle than to construct, and a system that functions adequately should be valued over abstract theories of ideal governance. History teaches us that attempts to transform the former into the latter have often resulted in catastrophic outcomes rather than the envisioned greatness. Burke succinctly encapsulated this viewpoint:
A disposition to preserve and an ability to improve, taken together, would be my standard of a statesman. Everything else is vulgar in conception and perilous in execution.
Does Lam’s argument withstand this scrutiny? This question could be clarified through a more pronounced emphasis on the law-legislation distinction. I tend to interpret Lam’s contention as encompassing both a desire to preserve and to enhance, given that his focus is on the bureaucratic rules rather than the organic laws governing the broader social landscape. Yet, his case would undoubtedly benefit from a more explicit acknowledgment of this point.
Some aspects of Lam’s exploration of discretion in law enforcement are less than compelling. He notes that progressives have sought district attorney roles to exercise selective discretion in alignment with justice. However, he cites former San Francisco DA Chesa Boudin, whose term can only be charitably summarized as “let’s just make crime legal in San Francisco.” Lam merely mentions that Boudin was recalled in a 2022 vote, glossing over the significant backlash against his approach. Critics might justifiably argue that this oversight indicates a lack of attention to the tangible risks associated with discretion.
Lam could respond in two ways. Firstly, he could assert that his argument hinges on the principle of accountability, where those wielding discretion poorly face consequences for their actions, exemplified by Boudin’s recall. Alternatively, he might contend that Boudin’s term represents a case where discretion was removed in favor of a distinct brand of legalism. As Professor Hunter Baker observed:
The reason for granting significant discretion to prosecutors is to prevent manifest injustice in individual cases. A competent prosecutor can exercise discretion to achieve just outcomes. However, applying discretion uniformly across the board is inappropriate; while leniency may be virtuous in specific circumstances, it is misguided to disregard the law for entire categories of crime.
Prosecutors are part of the legal system’s executive branch, tasked with enforcing the law—not creating it. By deeming certain laws as illegitimate or unworthy of enforcement, Boudin effectively assumed a monarchial role.
To nitpick Baker’s assertion, saying discretion has been “applied to cases in a blanket fashion” merely indicates that discretion is absent; it implies a replacement with a rule. A blanket approach is inherently indiscriminate and fails to allow for the necessary distinctions that discretion entails. It can be argued that Boudin’s administration effectively removed discretion from his prosecutors, imposing his mandates instead. Indeed, a former prosecutor under Boudin noted:
“I agree with the spirit of some of his policies, but where Chesa has failed is by entirely eliminating prosecutorial discretion,” said Brooke Jenkins, who left the DA’s office and joined the recall movement.
Lam’s practical recommendations also leave room for improvement. I acknowledge his observations on the dynamics of bureaucracy, having witnessed the evolution of organizations firsthand. Lam advocates for restoring discretion periodically, establishing organizations to review discretionary use, and providing ongoing training to optimize discretion. However, why would these measures not succumb to the very bureaucratic laws he identifies?
Lam suggests implementing ethics boards to evaluate discretionary decision-making, but what safeguards prevent these boards from morphing into the very legalistic bodies he seeks to avoid? We cannot assume these boards will operate outside the laws of bureaucratic dynamics, nor can we expect the rules that Lam proposes to enhance discretion to escape the same fate.
As Scott Alexander aptly stated, using the term “Moloch” to describe social processes that ensnare societies in inadequate equilibria (the tragedy of the commons being a quintessential example), he identified a common pitfall:
The rookie mistake is: you see that some system is partly Moloch, so you say, “Okay, we’ll fix that by placing it under the control of another system, and we’ll ensure this new system is immune to Moloch by labeling it ‘DO NOT BECOME MOLOCH’ in bright red letters.”
(“I see capitalism occasionally misaligned. Let’s rectify that by placing it under government control. We’ll safeguard the government by ensuring only virtuous individuals occupy high offices.”)
Lam’s recommendation for ethics boards to oversee discretion raises an immediate concern: how will we prevent those boards from devolving into the very bureaucratic institutions he critiques? If Lam’s book does not address this question adequately, it leaves readers with lingering uncertainties.
In my next and final analysis, I will synthesize my overarching thoughts on Lam’s work.
