Fewer Rules, Better People: How To Expand Discretion

Barry Lam’s Fewer Rules, Better People: The Case for Discretion makes a series of second-order arguments for why discretion based on the spirit of the law should be expanded over legalism according to the letter of the law. But he doesn’t just make arguments for why things should be different from how they currently are. He also offers a series of concrete suggestions for how to implement this expansion in the scope of discretion.

His first suggestion is to make the use of discretion an official, rather than implicit, part of all bureaucratic structures:

(1) Build discretion into all top-down mandates, essentially allowing for exceptions.

This is justified by the simple recognition that no rule will ever be constructed that brings about the best solution without exception:

We should allow street-level bureaucrats to make exceptions in the cases where morality requires that they be made, in the cases where shoplifting isn’t a jailable offense or where a particular drug possessor does not deserve ten years in prison or where purchasing Starbucks coffee is not a corrupt act. No matter that a rule maker can’t envision an exception, it will arrive, so give selective discretion to your enforcers.

From making selective discretion official, Lam moves onto his second idea:

(2) Live with interpretive discretion.

Lam specifically says this is something we must “live with” because it unquestionably comes with its own downsides. Still, Lam argues that allowing for interpretive discretion is better overall, while also encouraging us to develop our moral and social capacities:

In my own life, I have come to embrace the virtues of vague rules, knowing full well their pitfalls, that is, bad calls made by mediocre people…

I have also become a fan of vague house rules such as “do chores in a timely way” and “keep rooms in reasonable order.” Sure, there will be arguments and charges that the chore doer is exploiting a loophole or the enforcer is being arbitrary and nitpicky. People are not completely aligned in their interpretations of timely and reasonable, but the rules develop a person’s knowledge of their own boundaries of timeliness and reasonableness, while forcing them to think about other people’s boundaries. These kinds of rules require thinking about other people, precisely what living together demands.

Lam’s third idea calls back to his second law of bureaudynamics – the idea that pressures to remove discretion are always stronger than pressures to grant it. To account for this, Lam makes the following suggestion:

(3) Build mechanisms into the rules and the system that periodically restore discretion as a check on the excesses of legalism, such as earned-discretion clauses.

Earned-discretion clauses allow those who demonstrate the ability to use discretion well to gain more discretion, while maintaining bounds on the discretion of those who fail to demonstrate the same ability. One example Lam gives is of an officer who has no excessive-force complaints compared to another officer with many – the first would be allowed more discretion while the second would be more restricted. This is meant to work to the benefit of citizens:

Earned discretion gives a way to grant those with wise judgment more power to exercise those judgments when needed. This is not to benefit the wise bureaucrats, but to benefit us, the people they serve.

This is made explicit in Lam’s next idea:

(4) Give all enforcers a discretionary budget, an ability to exercise selective, interpretive, or adjudicative discretion up to a certain limit and allow increases in that budget as they show a reputation for good judgment.

Lam sees this as a compromise that still allows some of the real benefits of legalism to be preserved:

One benefit of this system is that legalists can have it their way; the mediocre can continue to trudge along in their by-the-book roles without the power to bring down the entire bureaucracy. However, those who have displayed excellent judgment, the Confucian ideal, will not be hamstrung by mandates, bad rules, or poorly designed systems that do not allow people in the system to make exceptions to rules.

But discretion must also come with accountability. In a legalist system, those who simply apply the rules by the book face no accountability when they inflict harm by enforcing bad rules, and never have to offer any explanation for their decisions beyond mutely gesturing at some policy manual. In a world with discretion, however, they will have to be able to explain themselves if questioned and should be able to do so:

(5) Bureaucrats ought to have – and citizens are entitled to know – specific moral decision-making frameworks that govern their discretionary decision-making, so we do not hire only by-the-book bureaucrats who have no way of seeing outside the rules of their organization.

This isn’t just to let bureaucrats know they will be accountable for the choices they make. It is also to encourage the citizenry to expect – and demand – better from civil servants than simply repeating a rule that’s been written down for them:

Under legalism we expect nothing of our bureaucrats. With restored discretion we should expect a lot more.

Accountability is all the more important because discretion does come with the risk of real downsides – the fact that discretion is allowed cannot by itself be wielded as a proverbial “get out of jail free card”:

Discretion means the opportunity for bad, even catastrophic, decisions. Just because a bad decision is allowed by discretion does not mean people who make those decisions cannot be held accountable for them.

To this end, Lam suggests that bureaucrats with discretion should be under continuous examination:

(6) In the same way that professions have codes of ethics and professional associations have ethics boards, there should be ethics boards that evaluates discretionary decision-making and informs bureaucrats of how they are falling short. It should be possible to remove individuals for patters of egregious moral errors, even if discretion legally permits them.

Lastly, discretion is not like a fixed rulebook – it is a constantly evolving process. Bureaucrats should be trained to think of discretion as an art requiring consideration and judgment, rather than a fixed process of mechanically applying rules and clauses:

Discretionary decision-making, when considered a practice, rather than a necessary evil, should make us use all of the same tools as other practices.

Thus Lam’s final suggestion for integrating greater discretion into decision-making:

(7) There should be regular training in the latest best practices in areas in which people have discretionary power so that decision-making is informed by the best available empirical evidence.

All of these suggestions are meant to help move institutions above their current level of performance. Lam does not think that legalism is bound for catastrophe, but he does think it’s at best mediocre and we can and should do better. And the way to do better is by recognizing the value of human agency, judgment, and the ability to distinguish differences in circumstances rather than treat different situations by an one-size-must-fit-all mandate:

True, [legalist bureaucracies] are better than the worst fears of political philosophers. They are better than famines, tyrants, civil wars, and the complete lack of civil institutions. But that is a very low bar. If you have ever been trapped inside a sprawling bureaucracy, sent to one by-the-book bureaucrat after another to get a permit, medical procedure, or reimbursement approved, you will know how low everyone’s expectations are. You will know how helpless everyone inside of that system feels. We’re sorry, they will say, but this is the system, these are the rules, we all have to work within them.

No, we do not. We do not have to treat human agency like a venom to civil society, sucking and draining every last bit of it from the institutions that matter most. We can instead treat agency and the cultivation of its virtuous practice as essential to all people in all jobs, especially the jobs of people in power.

This wraps up my outline of Lam’s argument. In my next post, I will highlight the areas where I most agree with Lam and think his arguments are strongest. After that, I will offer some criticisms and pushback against other points he makes, followed up with one last post summarizing my overall take on his book.