Posted 2/10/14 by Philip K. Howard
The Perils of Legal Certainty
Howard's Daily by Philip K. Howard
You will profit by reading philosopher Simon Critchley’s recent reflection on Dr. Jacob Bronowski and the dangers of certainty. People who think they possess a final truth, driven compulsively towards their view of certainty, often cause evil, whether they're religious fanatics like Savonarola or, as Bronowski discusses, the officials who devised the Final Solution.
A responsible human must look life in the eye, open to the moral and factual uncertainties presented by many choices in human dealings. Critchley: "There is no God’s eye view, Dr. Bronowski insisted, and the people who claim that there is and that they possess it are not just wrong, they are morally pernicious. Errors are inextricably bound up with pursuit of human knowledge, which requires not just mathematical calculation but insight, interpretation and a personal act of judgment for which we are responsible."
Applying this principle of human responsibility for moral choices has applications throughout the range of human endeavor. (See this thoughtful essay by Roger Berkowitz of the Hannah Arendt Center at Bard College). Let’s look at law for a minute.
Legal certainty is accepted orthodoxy. Of course law should be certain, we have been taught. Only then will people know what’s expected of them, and not be fearful of arbitrary officials. In pursuit of certainty, laws have become ever more detailed. The new Volcker Rule regulating proprietary trading by banks is almost 1,000 pages long. The Affordable Care Act is almost 3,000 pages long. Nursing homes are typically regulated by 1,000 rules. In total, there are over 100 million words of binding federal law, and several billion words of state and local law.
Do all these detailed dictates achieve certainty? Of course not. Law is an unknowable jungle. Does all this law safeguard us against arbitrary officials? No, it’s a legal minefield. No one can comply with it all. We’re at the mercy of the state. Does all this detailed law make government a well-oiled, smoothly-running machine? HELP!! There’s hardly any program, even the best of them, that doesn’t waste vast resources in bureaucratic nonsense.
Public solvency is basically illegal in America. All this detailed law prevents the president, and any governor, from making the choices needed for fiscal responsibility.
Our obsessive quest for legal certainty has left our society, ironically, in a very uncertain state. The only cure is to abandon legal certainty and embrace human responsibility as the operating philosophy for most activities of government.
Canadian management theorist Brenda Zimmerman makes the distinction between activities that are "complicated"—like engineering, or rocket launches, or surgery—and activities that are "complex"—such as raising a child, or running a healthcare system. Complicated activities profit from detailed rules, checklists, and protocols. Complex activities require balance, and tradeoffs, and moral choices. Detailed rules cause failure.
Law can support a free society, I argue in my new book (April), only when it abandons this obsessive quest for certainty. Law should instead set goals and principled boundaries, leaving room for humans to make practical and moral choices. Real people, not rules, make things happen. Automatic government is a false philosophy. Democracy is supposed to elect people to act on their vales, not to avoid them by mindlessly applying detailed rules. Of course people will sometimes abuse this trust. Look at the George Washington Bridge lane-closings. But officials there are paying the price. The worst system is one where things fail, and there’s no one to hold accountable. That’s what we have today: The Rule of Nobody. As Jacob Bronowski passionately explained, avoiding human responsibility is the root of much evil.