Ideas often reveal themselves in the most unexpected venues. The British comedian David Mitchell once humorously noted that his first encounters with Proust and Wagner were courtesy of Monty Python and Bugs Bunny, respectively. In my case, the debate over the balance of rules versus discretion first piqued my interest while watching the newly released TV series 24 with my father. He pointed out an ongoing conflict in our world: the tension between adhering to procedures and simply getting the job done. Jack Bauer, the show’s protagonist, epitomized the “just get it done” mentality, frequently sidelining rules and protocols, much to the chagrin of his colleagues and superiors.
This tension, however, extends far beyond the realm of television drama; it holds significant implications in various aspects of life. Striking the right balance between rules and discretion is a complex issue with ample room for legitimate debate. Philosopher Barry Lam’s recent book, Fewer Rules, Better People: The Case for Discretion, posits that contemporary society has become overly reliant on rules, advocating instead for a greater allowance of discretion.
(As is my custom in these detailed reviews, my objective is to present Lam’s arguments as faithfully as possible. My personal assessments and critiques will be reserved for the concluding parts of this series. Any queries or comments will be answered from the perspective expressed in Lam’s work rather than my own.)
Lam begins by outlining how entrenched rules and procedures have become in modern existence:
Alongside death and taxes, bureaucracy stands as the third unyielding truth of civilized life. One cannot truly live or die without navigating the labyrinth of proper paperwork for the appropriate authorities. Without a birth certificate, your very existence is called into question. Pass away without a death certificate, and you may find yourself forever indebted to a government that refuses to acknowledge your absence. Attempt to earn, win, or even gift a significant sum of money, and expect a barrage of forms, fees, and lines.
Moreover, Lam argues that this incessant drive for rules generates a self-perpetuating cycle. As new situations arise within organizations, fresh rules emerge to address them. This is especially pronounced following crises. When calamity strikes, the instinctive response is often, “Had we implemented procedure X, we could have avoided this. Henceforth, everyone must adhere to procedure X in every instance.” This reflexive response creates a snowball effect:
One scandal is enough to trigger a deluge of procedural adjustments. It’s embedded in the evolutionary fabric of large organizations to encounter issues and mitigate them through the establishment of new rules, often disseminated via memos for others to implement. Inevitably, someone will discover a loophole, prompting additional clauses, resulting in a mountain of fine print, and eventually a computer system designed to manage compliance with these myriad rules.
Eventually, the accumulation of rules can become so overwhelming that navigating the system becomes nearly impossible:
Bureaucracy is theoretically intended to resolve the complexities of social organization, yet in practice, it often leaves frustrated citizens staring incredulously at powerless employees trapped within a maze of unyielding regulations.
Lam does not contend that rules are inherently detrimental or that they can be entirely eliminated. Instead, he argues that a functional system invariably requires a blend of both rules and discretion. The crux of the debate lies in which of the two should be prioritized, and which is merely a tolerable deviation from the ideal. Those who advocate for rules over discretion are termed legalists by Lam:
The legalist asserts that justice necessitates exhaustive and intricate rule-making, viewing discretion as a necessary evil (because rules are inherently flawed). Conversely, I contend that justice demands discretion, with complex rule-making as a necessary evil (since rulers are imperfect).
Beyond countering legalist viewpoints, Lam acknowledges that his assertions may spark skepticism from various political ideologies, including libertarians:
Even libertarians, who generally oppose cumbersome and convoluted regulations, view discretion unfavorably. They are wary of centralized authority, which makes the delegation of discretion to bureaucrats an undesirable proposition.
Left-anarchists might also take issue:
In the anarchist left, where direct democracy is idealized, the notion of allowing anyone to bypass or alter rules is intolerable. Such a practice would confer unequal power on certain individuals, a scenario fundamentally at odds with an anarchist ethos.
In contrast, Lam asserts that “discretion is an essential characteristic of a well-functioning institution striving for fairness, justice, efficiency, and effectiveness.”
To effectively challenge the legalist stance, Lam must first clarify the definition of legalism and examine the compelling arguments that support it—arguments that he acknowledges carry considerable weight. In the forthcoming post, I will delve into Lam’s exploration of the justifications for legalism.
