This article originally appeared on The-American-Interest.com on 01/31/2019.
Diagnosing the bureaucratic causes of public failure, economic repression, and voter alienation.
The daily detonations from the White House are diverting our attention from deeper flaws in modern American government. Donald Trump was elected for a reason: many Americans are fed up with Washington. They see Washington as a kind of alien power, dictating policies and behavior without regard to the feelings or needs of real people.
Neither party has gotten the message of this voter revolt. They continue to rely on the lack of credible political alternatives to take turns in power without taking responsibility for changing things. Instead of presenting positive visions for change, the parties stoke voters’ passions by pointing fingers. Pulling out of this downward spiral more than just new leaders; it requires a new vision.
But where can we find this new vision? “There is only one sure way to quiet our populist distempers,” argues the recent Niskanen Center report The Center Can Hold: “that is for . . . democratic institutions to deliver effective governance . . . through successful problem-solving.” Political scientist Francis Fukuyama digs deeper, in his new book Identity, into the innate human needs for belonging and self-respect.
These and other diagnoses of voter alienation converge at one point: a sense of disempowerment by Americans, at every level of responsibility, to make practical and moral choices. Almost without our noticing when it happened, bureaucratic structures have crowded out human agency. Nothing much works sensibly, I argue in Try Common Sense, because no one is free to make it work. Of course Americans are angry: Washington is inept, and makes us inept, by entangling public choices in a jungle of red tape.
The modern bureaucratic state must be replaced, not repaired. We must simplify governing structures to liberate human judgment and initiative at all levels of society. No institutions, including democratic ones, can work effectively when people are prevented from drawing on their knowledge, instincts, and experience about how to get things done. Refocusing government on public goals, and away from micromanaging daily choices and interactions, will relieve much of the frustration and anger that drives voters toward populist leaders and extremist solutions.
The current bureaucratic framework in the United States has largely been constructed since the 1960s. It bears little resemblance to the legal frameworks existing before that time. The 1956 law authorizing the Interstate Highway System, for example was 29 pages long; the most recent transportation bill, passed into law in 2015, was almost 500 pages long, and it must be implemented pursuant to regulations that are themselves thousands of pages long. Environmental review, an innovation of the National Environmental Policy Act of 1969, was intended to make decision-makers and the public aware of significant impacts of a project. The expectation was that reviews would be short (rules suggest no longer than 150 pages) and done in a matter of months. Now reviews can be thousands of pages and take upwards of a decade.1
There is no shortage of grumbling about bureaucratic paralysis—indeed, bureaucracy is attacked even by the people in charge of it. But there’s been little skepticism about the assumptions underlying the way we make public choices.
The main premise of modern bureaucracy is that it can prescribe a correct way of doing things. For 50 years, regulation writers have been trying to dictate choices in every area of conceivable public interest. Unlike regulatory goals, which are relatively straightforward, most regulatory detail prescribes the correct way to achieve the goals. It is this assumption—that bureaucratic structures should dictate the details of implementation—that accounts for much of the failure and frustration of modern government.
The imperative to rethink the current bureaucratic structure can be understood by analyzing its failures through the lenses of three separate disciplines: economics, psychology, and legal philosophy. In each case, the bureaucratic structure violates core truths and principles of the discipline:
- Clear law, economists assume, promotes growth by eliminating legal uncertainty. In practice, however, so-called clear law leaves little or no room for responsible humans to make tradeoffs, to balance competing interests, or to engage in the trial and error processes of integrating experience, which is source of most solutions and innovation. The current “one-size-fits-all” approach to regulation is a variation of central planning, with the added disadvantage that the original planners are often dead or retired and so cannot themselves make adaptive choices.
- The psychological assumption of bureaucracy is that people have the cognitive capacity to process detailed rules. But research by experts in cognitive load shows that bureaucracy is ineffective not just because of the cost of compliance but because it shuts the door to the cognitive processing needed for success.
- The legal theory of bureaucracy is that law can be objective and should operate independently of individual judgment and values. But most of the critical precepts of the rule of law, including reasonableness, good faith, and fairness, hinge on judgment in the particular circumstances. The modern effort to objectify law into rigid rules and rights has led to an epidemic of selfishness. The main goal of law is social trust; the effect of modern bureaucratic legal structures is to infect social dealings with distrust and defensiveness.
Bureaucracy precludes human choice at the point of implementation. That is its goal. It prescribes choices in advance in order to avoid mistakes by fallible humans, without understanding the far greater mistakes caused by rigidity. In economic terms, modern bureaucracy dramatically reduces the supply of human initiative and innovation. If bureaucratic compliance were an occasional diversion, necessary to achieve institutional stability or coordination, the benefits might outweigh the costs. But the legal requirements and risks bearing down on us are not occasional, but continuous. The endemic inefficiency and ineffectiveness of American healthcare, public schools, infrastructure, and regulation suggest that almost any alternative that allows practical choices would reap enormous public and private benefits.
Bureaucratic rigidity has little to do with the partisan debate over regulation vs. de-regulation. The goals of regulatory programs aimed at the common good are generally valid. (This excludes a large stack of programs which distort markets and public administration with special interest preferences, such as farm subsidies, labor preferences, and corporate tax giveaways.) Just as a reliable rule of law enhances economic prosperity by enhancing trust instead of defensiveness in commercial dealings, so too government oversight of products, services, and safety can enhance freedom by protecting against externalities such as pollution and reducing concerns over adulterated food or unsanitary conditions.
The evidence is overwhelming, however, that even vital regulatory programs are wasteful and ineffective. That is because the failures of modern government are largely failures not of faulty goals but of implementation: Doctors, teachers, officials, business managers, and others find themselves unable to act on their best judgment because of bureaucracy or other legal concerns.
Every President since Jimmy Carter has promised to streamline red tape but, with a few notable exceptions (industry deregulation under Carter, welfare reform under Clinton), their efforts have yielded little, and the bureaucratic burden has gotten progressively heavier. The steady growth of bureaucratic verbiage is a natural consequence of the drive to clarify each new ambiguity or wrinkle. Tangled bureaucracies are the inevitable consequence of the premise: to create an instruction manual for correct public choices. This unexamined frame of reference explains why would-be reformers have had little success in taming the bureaucratic behemoth.
The Bureaucratic Imperative to Remove Human Choice
No one designed this bureaucratic tangle. No experts back in the 1960s dreamed of thousand-page rulebooks, ten-year permitting processes, doctors spending up to half their work day filling out forms, entrepreneurs faced with getting permits from 11 different agencies, teachers scared to put an arm around a crying child, or a plague of legal locusts demanding self-appointed rights for their clients. America backed into this bureaucratic corner largely unthinkingly, preoccupied with avoiding error without pausing to consider the inability to achieve success.
The tendency toward detailed rules is rooted in human nature. Humans like the idea of telling other people how to do things. Evolution has wired us to be risk averse, and controlling others’ decisions addresses the risk that people will choose poorly. Just as people don’t go into the ocean for fear of shark attacks, they like rules to prevent a human shark from making abusive choices. Rules also have the advantage of avoiding the personal risks inherent in taking responsibility. David Hume observed that people “are mightily addicted to general rules.” Even bureaucrats with impregnable job protection, Washington Monthly founder Charles Peters observed, cling to rules because of an almost pathological fear of being put on the spot: “The rule made me do it.”
The debate over rules started early in American history. The main dispute around the ratification of the Constitution was the objection of the “Anti-Federalists” that the powers of government needed to be specifically prescribed. The Anti-Federalists argued that the Constitution was “made like a fiddle, with but few strings,” so that those in power might “play any tune upon it they pleased.”2 The resolution was not to prescribe detailed powers in the Constitution, but to add a Bill of Rights whose goals and principles would be enforced by officials in the Constitution’s system of separated powers.
With some notable exceptions, the organizational literature that evolved following the industrial revolution embraces a control vision of administration. These theorists, such as Frederick Winslow Taylor, believed not just in control but in the idea of one correct solution; if the central organizer was smart and thoughtful, the institution would hum like a perpetual motion machine. The efficiency of assembly lines over craftsmen’s workbenches were living proof of the power of a fixed route of march.
There were also a few notable counter-thinkers in management theory, led by Chester Barnard and Peter Drucker, who focused on individual responsibility and institutional culture. Herbert Kaufman’s The Forest Ranger (1960) described an open structure in which forest rangers made many practical choices without a host of bureaucratic constraints promulgated from distant Washington, DC. Kaufman concluded that a culture of shared values and “guided discretion” provided the key to this successful structure.
The upheavals in the 1960s caused public organizations to veer even further toward legal and bureaucratic prescriptions. Like a hot iron branding the public consciousness, the abuses by institutions and people with authority—from racism and environmental abuse to the Vietnam War and gender inequality—created demand for a governing approach purged of bias and any opportunity for bad judgment.
Rulemaking burgeoned—from a little more than 10,000 pages in the late 1950s, the Federal Register grew to almost 100,000 pages in 2016. While the 1960s reforms are known for introducing new areas of government oversight—such as civil rights, environmental protection, and safety laws—most of the bureaucratic detail had less to do with the scope of regulation than with instructing people exactly how to meet public goals. Whereas forest rangers once did their jobs with reference to a pamphlet of rules, they now had thick volumes of specific instructions. Almost every aspect of the workplace rule-writers could think of was turned into a legal prescription: OSHA now stipulated that stairwells must be “illuminated by either natural or artificial ” light. How else can stairwells be lit?
The evil to be purged by this dense bureaucracy was human judgment, especially by people with authority. But thick rulebooks were insufficient. Guarding against unfair choices required something more, and here the fix here was to apply due process—the hallowed constitutional protection against arbitrary confinement or confiscation of property—to personnel and management decisions. Teachers would have to prove in a disciplinary hearing that Johnny threw the pencil first; supervisors would have to prove that Ethel didn’t work hard or get along with co-workers.
The expansion of due process had the effect of inverting the hierarchy of authority—the burden was now on the public supervisor to prove the correctness of his supervisory decisions. Public managers no longer had the practical ability to manage public personnel. It is basically impossible, for example, to terminate a public employee for incompetence. Another effect, commonly, is a listless public culture; it is difficult to maintain energy and camaraderie in an office where everyone knows that job performance doesn’t matter.
The new bureaucratic machinery to honor due process was imposed in the name of individual rights, but the meaning of rights had been transformed from protection against state coercion to a tool for self-interest against co-workers and the organization. Instead of government making choices as to what best served the common good, it made choices based on the legal demands of each claimant. Instead of being held to a standard of public service, public servants now demanded, in essence, that the public should serve them.
This flash flood of individual rights swept nearly everyone along. Virtually ignoring his own findings in The Forest Ranger, even Herbert Kaufman flipped his point of view and embraced detailed rules and processes in a short book, Red Tape. Kaufman acknowledged the costs of bureaucratic stultification but argued that the rules were essential to avoid any hint of unfairness.
For 50 years since the 1960s, modern government has been rebuilt on what I call the “philosophy of correctness.” The person making the decision must be able to demonstrate its correctness by compliance with a precise rule or metric, or by objective evidence in a trial-type proceeding. All day long, Americans are trained to ask themselves, “Can I prove that what I’m about to do is legally correct?”
In the age of individual rights, no one talks about the rights of institutions. But the disempowerment of institutional authority in the name of individual rights has led, ironically, to the disempowerment of individuals at every level of responsibility. Instead of striding confidently toward their goals, Americans tiptoe through legal minefields. In virtually every area of social interaction—schools, healthcare, business, public agencies, public works, entrepreneurship, personal services, community activities, nonprofit organizations, churches and synagogues, candor in the workplace, children’s play, speech on campus, and more—studies and reports confirm all the ways that sensible choices are prevented, delayed, or skewed by overbearing regulation, by an overemphasis on objective metrics,3 or by legal fear of violating someone’s alleged rights.
A Three-Part Indictment of Modern Bureaucracy
Reformers have promised to rein in bureaucracy for 40 years, and it’s only gotten more tangled. Public anger at government has escalated at the same time, and particularly in the past decade. While there’s a natural reluctance to abandon a bureaucratic structure that is well-intended, public anger is unlikely to be mollified until there is change, and populist solutions do not bode well for the future of democracy. Overhauling operating structures to permit practical governing choices would re-energize democracy as well as relieve the pressures Americans feel from Big Brother breathing down their necks.
Viewed in hindsight, the operating premise of modern bureaucracy was utopian and designed to fail. Here’s the three-part indictment of why we should abandon it.
1. The Economic Dysfunction of Modern Bureaucracy
Regulatory programs are indisputably wasteful, and frequently extract costs that exceed benefits. The total cost of compliance is high, about $2 trillion for federal regulation alone.
The opportunity costs of ineffective bureaucracy are hard to measure but likely far greater— discouraging initiative and innovation undermines the can-do character of American culture. Hard metrics are not the only evidence of suppressing economic activity. Doctors and nurses who spend up to half their time “doing paperwork” are not caring for patients. Is it a coincidence that we spend almost double what other Western nations do on healthcare?
Bureaucratic delay is far more costly than generally recognized. In the Common Good report “Two Years, Not Ten Years,” I found that a six-year delay in infrastructure permitting more than doubles the effective cost of projects. Moreover, lengthy environmental reviews generally cause significant environmental harm by delaying projects that alleviate polluting bottlenecks. Often there are few or no benefits to offset the substantial costs and delay. For example, a project to raise the roadway of the Bayonne Bridge—a project with little impact because it used existing foundations—was 10,000 pages, plus another 10,000 pages of exhibits.
There has been surprisingly little effort to redesign regulations to be less rigid and wasteful. Liberals are preoccupied with maintaining a rear-guard action to defend the goals of regulation. Conservative calls for broad deregulation go too far. That’s why they’ve been notably unsuccessful for the past four Republican administrations– voters like Medicare and want government to protect common resources such as clean water.
Ironically, what both sides have in common is to demand what they call “clear law.” There will be little or no room for either government overreach or business evasion of regulation, the theory goes, when human judgment is replaced by detailed rules. Their allegiance to this automatic, hands-free conception of regulation is what causes waste and frustration—not the goals of government oversight. Bureaucratic rigidity cannot avoid crippling costs and inefficiencies:
The high marginal cost of perfect compliance. Regulation is typically designed in absolute terms, requiring uniform compliance with each rule or mandate. Striving for complete compliance is sometimes important: A pre-flight checklist is important to avoid a disastrous air accident due to an otherwise small mistake. All restaurants need grease traps to avoid clogging the sewers. But most regulatory goals involve more complex tradeoffs. Often a public goal can be substantially achieved at a small cost by accepting a measure of imperfection. Criminal law doesn’t eliminate all crimes, just as contract law doesn’t eliminate all cheating, but they are both effective to instill public trust needed to support our freedom in social dealings.
The goal of privacy laws in healthcare, for example, could be substantially achieved with a few broad principles and protocols, particularly if there were not onerous consequences for the occasional slip up. The main goal of healthcare law should be effective care; spending extra tens of billions for perfect privacy means that those resources are not being used to save lives.
The inability to balance competing public goals. Rigid regulation is commonly counterproductive because it conflicts with other public goals. Safety, for example, is only half the equation. The other half is what we’re giving up to achieve it. Delaying the approval of a new drug in order to achieve perfect understanding of all the side-effects can cause harm to thousands of patients who need treatment now. “Helicopter parenting” stunts a child’s emotional and physical growth.
Discouraging innovation and initiative. The engine of innovation is trial and error. But regulation that comprehensively dictates choices in almost all areas of social and business endeavor doesn’t let people try this and that. Instead, it traps people in a kind of spider web. Often, a person is uncertain whether a new approach conflicts with a rule and lacks the time or resources to find out. When California initiated a program to waive rules for certain innovative school programs, it found, after reviewing the waiver applications, that most applications required no waiver; the schools had merely assumed that the innovations violated some rules.4 Just as unreliable law dampens economic initiative, so too does uncertainty about what is being regulated.
2. Bureaucracy Causes Cognitive Overload
The complex tangle of bureaucratic rules impairs a human’s ability to focus on the actual problem at hand. The phenomenon of the unhelpful bureaucrat, famously depicted in fiction by Dickens, Balzac, Kafka, Gogol, Heller, and others, has generally been characterized as a cultural flaw of the bureaucratic personality. But studies of cognitive overload suggest that the real problem is that people who are thinking about rules actually have diminished capacity to think about solving problems. This overload not only impedes drawing on what calls “system 2” thinking (questioning assumptions and reflecting on long term implications); it also impedes access to what they call “system 1” thinking (drawing on their instincts and heuristics to make intuitive judgments).
William Simon tells the story of the bureaucratic clerk who refused to restore welfare to a desperate mother who filed the application late. The clerk asserted to the mother: “There is nothing I can do.” In fact, the error could have readily been fixed by another department; what the clerk meant was that there was nothing that the clerk could do. But in the mental cubicle of bureaucratic rules, all the clerk thought about was her own compliance, not solving the predicament of the young mother before her. This might be called “system zero” thinking—where mental capacity focuses on artificial constraints instead of instincts, norms, or public goals.
Research by psychologist John Sweller and others have demonstrated that “working memory”—the conscious part of the brain—can process only a few things at once. “Long-term memory,” by contrast, is not conscious and holds a vast store of experience and evolutionary instincts that are drawn into working memory as people deal with particular problems. A chess grandmaster doesn’t consciously remember thousands of variations, but is able to draw on past experience, stored subconsciously, to quickly respond to multiple boards before him. Dealing with the needs of a particular person requires a social worker to perceive the emotional and physical state of that client, and make judgments that draw upon instincts and experience about what is needed. When both engines shut down when his passenger airliner took off from LaGuardia Airport, Captain Chelsey “Sully” Sullenberger was able to draw on a lifetime of experience to keep the glide angle just steep enough to maintain airspeed and avoid stalling, and then to feather the nose up just before ditching the plane so that it would “plane” onto the river instead of crashing.
Humans are smart mainly because of their ability to draw on long-term memory. In most situations of technical expertise, the skills are internalized in long-term memory and constitute what we think of as “understanding.” Their ability to do so requires, however, that working memory be available to receive these signals and wisdom. People go back and forth, figuring things intuitively. Nicholas Negroponte found that children in Ethiopia, having never seen a computer, could figure out how it worked in short order by trial and error. That’s because modern computers are designed with multiple pathways to get to a goal, so people can make them work intuitively.
Bureaucratic constraints are difficult to internalize because they rarely fit together into a broad understanding. They’re more like a shopping list, which must be referred to consciously in order to meet each requirement. This conscious effort to refer to detailed bureaucracy is mentally exhausting.
The fallibility of human judgment has received substantial attention in recent years. Atul Gawande, a surgeon and author of The Checklist Manifesto, has shown how checklist protocols before pilots take off, or before surgeons begin operating, can avoid tragic errors that occur because human cognition is not very good at keeping lists. The virtue of going down the checklist is precisely that it absorbs all the cognitive capacity of working memory to make sure that a person hasn’t forgotten one small detail that might cause a disaster. A checklist avoids error in complicated activities, but it does not itself achieve success. To fly a plane or perform surgery requires, after running down the checklist, going back to human instincts and experience to do the job well.
The functioning of the brain has critical implications for the design of organizational systems. The brain is “minute in its ability to process new material but massive in its ability to process very extensive and complex, previously learned information.”5 In computer terms, the brain has terabytes of hard drive memory, but eight-bit processors.
Highly functioning modern organizations, such as Toyota, have institutionalized a process of continuous improvement (known by the Japanese term “kaizen”), where workers constantly strive for better ways to do things and then communicate their findings throughout the organization. A mindset of learning from continuous trial and error achieves understanding in each worker, not just mindless compliance, and pays off in results, as Toyota has demonstrated. On the other hand, most people can’t read or understand a computer instruction manual.
Bureaucracy is the world’s largest instruction manual—a self-enclosed system where every detail is laid out in words, whether needed or not, and regardless to its importance to accomplishing a public goal. Bureaucratic rules also tend to be poorly written and contradictory. Instead of providing multiple pathways to a goal and allowing people to find the best ways to get there, bureaucracy imposes one “correct” way, and fails because people can’t internalize it as well as because, like central planning, it doesn’t honor the circumstances of each situation.
Bureaucracy also causes alienation. By pulling people away from their natural instincts, bureaucracy imposes severe psychological and cultural costs. Working, as Studs Terkel observed, is about the “search… for daily meaning as well as daily bread.” People derive dignity and satisfaction from the ways they do their job well. In The Mind at Work, his study of waitresses, plumbers, and other manual jobs, Mike Rose exposes the complexity and know-how required to do these jobs well. In The Moral Life of Schools, Philip Jackson, Robert Boostrom, and David Hansen show that successful teachers in fact have little in common; their success hinges on many subtle factors. People are energized by the satisfaction of drawing on all their instincts to achieve good things—teaching students, healing patients, having a cheerful relationship with a customer, or finding and fixing a leak. People who get into a “flow” of doing things in their way find that work is both invigorating and satisfying. They flourish, to use Edmund Phelps’s term.
Burnout is another side-effect of a bureaucratic system that denies people the opportunity to take initiative and solve problems in their own ways. Psychologist Christina Maslach and her colleagues have found that one of the main causes of burnout is “lack of control”: “when workers have insufficient authority over their work or are unable to shape the work environment to be consistent with their values.”
The prerequisite to satisfying work is the people have a sense of ownership in how they do things. That’s what allows them to have the dignity of making a difference. “Few things help an individual more than to place responsibility upon him,” Booker T. Washington noted; “Every individual responds to confidence.” Conversely, as Friedrich Hayek observed in The Road to Serfdom, “Nothing makes conditions more unbearable than the knowledge that no effort of ours can change them.” Broad voter anger and alienation at Washington should not surprise us: Bureaucracy denigrates human self-worth.
3. Bureaucracy Subverts the Rule of Law
The purpose of law is to enhance freedom. By prohibiting bad conduct, such as crime or pollution, law liberates each of us to focus our energies on accomplishment instead of self-protection. Societies that protect property rights and the sanctity of contracts enjoy far greater economic opportunity and output than those that do not enforce the rule of law.
The main mechanisms of law are supposed to be protective, not prescriptive. Law provides legal walls on the edges of a free society that, by guarding against abuse, define and safeguard the field of our freedom. As Isaiah Berlin put it in his essay “Two Concepts of Liberty,” law provides “frontiers, not artificially drawn, within which men should be inviolable.”
Bureaucracy, too, aims to be protective—striving to prevent bad conduct by setting rules in advance. But it does this by supplanting freedom with prescriptions dictating how to do things correctly. Bureaucracy protects the egg by killing the goose. Its suffocating rulebooks and procedures smother the freedom that people need to accomplish their goals.
Modern bureaucracy is built upon three misconceptions about the rule of law:
The myth of clear law. Both liberals and conservatives demand detailed rules as a matter of received wisdom. The motivation in each case is mutual distrust. Liberals see detailed rules as the way to shackle corporate malefactors. Conservatives see detailed rules as the way to prevent officials from abusing their powers. The theory is that detailed law achieves clear legal boundaries. But it doesn’t work: Thousand-page rulebooks do not achieve legal clarity. Sometimes law can be both precise and clear, as with speed limits or effluent discharge limits. But for most human activity, words are insufficient to capture the complexity of a situation. Too many words usually obscure or even impede regulatory goals. No human can comprehend thick rulebooks, such as the 4,000 detailed rules mandated by Federal worker safety law. Studies have shown that perfect compliance with hundreds or thousands of rules is literally impossible, even for large companies with giant legal staffs. J.P. Morgan Chase employs thousands of lawyers, yet constantly runs afoul of regulators. Small business cannot know, much less comply with, all these requirements, leading to a predictable pattern of involuntary noncompliance.
Clarity in law is usually achieved not with precise rules but with goals and principles that people can readily understand and internalize. “Standards that capture lay intuitions about right behavior,” Richard Posner observes in The Problems of Jurisprudence, “may produce greater legal certainty than a network of precise but technical, nonintuitive rules.”
There is “more honest truth in the inspiring generality,” legal philosopher Frederick Pollock observed, than in “many an arid” rule. These general goals and principles are enforced by officials who interpret and apply norms of reasonableness.
The unfairness of uniformity. Most legal scholars also accept as received wisdom that uniform application of rules ensures fairness. To the contrary, by not letting responsible people take into account the circumstances, mechanical application of rules often guarantees unfairness. Disciplining an eight-year old under “zero tolerance” laws for bringing to school a hat decorated with plastic soldiers carrying rifles is absurd. So too is a life prison sentence for someone who stole three golf clubs, under a “three strikes and you’re out” law, because of prior theft convictions. Balancing conflicting public goals is much of what government is called upon to do—playing traffic cop in a crowded society. Rigid law is synonymous with injustice. As Justice Benjamin Cardozo put it, “Justice . . . is a concept by far more subtle and indefinite than any that is yielded by mere obedience to a rule.”
Fear of abusive decisions. Precise law, the theory goes, prevents officials from acting arbitrarily or corruptly. To the contrary: The inability of mortals to comply with thousands of rules puts arbitrary power into the hands of each official. That’s part of why Americans go through the day looking over their shoulders. Is your paperwork in order?
Most officials are not inclined to abuse their authority, but, even so, the effect of too many precise rules means that regulation is enforced arbitrarily. In studying Illinois nursing home regulation, John Braithwaite found that government inspectors focused on only a small percentage of the rules, and which rules varied from inspector to inspector. Studies of corruption conclude that the best protection is to give responsibility to officials to use common sense when making regulatory judgments. When the spotlight shines on decisions by a particular official, he is less likely to act in ways that call attention to his decisions.
The error of legal philosophy that helped spawn modern bureaucracy was that law can function without human judgment. Law achieves trust, and supports practicality, only when applied with human values and understanding. “The first requirement of a sound body of law,” Oliver Wendell Holmes wrote in The Common Law, “is that it should correspond with the actual feelings and demands of the community.” The way law achieves this is that people are able to draw on norms of fairness and reasonableness at the point of implementation. Otherwise law is brittle, and words of law are parsed for selfish purposes. Legal philosopher Jeremy Waldron puts it this way: “The Rule of Law is , in the end, . . . a human ideal for human institutions, not a magic that somehow absolves us from human rule.”6
Remaking Law to Support Human Flourishing
Rigid rules work no better for law than central planning does for an economy. The reason is the same: as Hayek put it, “the knowledge of the particular circumstances of time and place” requires that humans be free to make choices on the spot.
Law is different from the marketplace in that it is enforced by coercive state power, not by the aggregate of “decentralized planning by many separate persons,” in Hayek’s words. Law thus requires mechanisms to guard against arbitrary or unfair enforcement. But protecting against arbitrary legal choices, like other choices, also requires “the knowledge of the particular circumstances of time and place.” Just as “zero tolerance” and mandatory sentencing laws basically mandate unfairness, so too barring the judgment of an environmental official over the scope of review will practically guarantee higher costs to taxpayers and cause environmental damage by creating unnecessary bottlenecks.
Freedom is concentric: Your freedom is dependent on the freedom of choice by people up and down the hierarchy of responsibility. Only if an official is free to decide what’s practical in a particular instance will the citizen be free to be practical in the same situation. If the teacher isn’t free to maintain order in the classroom based on perceptions of who is misbehaving, then the disruption caused by the breakdown of authority will deprive students of their freedom to learn. If the supervisor isn’t free to make personnel decisions based on perceptions of who is doing the job well, the energy and camaraderie of the office culture will dissipate like a deflating balloon, as everyone realizes that performance doesn’t matter. If a judge isn’t free to dismiss a lawsuit when Johnny breaks his leg while horsing around at recess, then schools will ban running, or end recess altogether.
There’s no reason for regulatory frameworks to deny people the ability to adapt to the circumstances before them. Find any governing activity that works—say, a successful public school, or an infrastructure project that got built on time and within budget, or successful agencies such as the Centers for Disease Control—and you will find responsible public employees who take ownership for their daily choices rather than mindlessly complying with rules.
Instead of trying to prune the regulatory jungle, as attempted by every President for the past 40 years, the cure for bureaucratic paralysis is to change the premise underlying it: Stop telling people how to do things correctly; instead make people take responsibility for outcomes. In some areas, for instance in many state licensing laws and in antiquated subsidies from the New Deal era, the solution is to eliminate the programs—in other words, deregulation. With most regulatory programs, however, the cure is to replace current programs with an open framework that gives people room to adapt to changing circumstances.
Creating a principles-based framework of regulation is far simpler, in all respects, than striving to dictate choices in every conceivable setting. Australia in the 1980s replaced a detailed rulebook on nursing homes with 31 general principles—for example, to provide a “homelike environment.” Within a short period, the quality of nursing homes materially improved. One advantage was to liberate operators to focus on the residents, not compliance with the rules. They could readily internalize general goals and principles. Instead of spending their days with noses in rulebooks, operators could be sensitive to the needs of the person in front of them.
Whether an official has transgressed some legal principle should not be a question of objective compliance, but should be decided by the judgment and perceptions of other officials up a hierarchy of authority. A simpler legal framework can provide as many checks and balances as seem prudent and practical, but they all must ultimately rest on human judgment. Using a human hierarchy to oversee decisions also reduces the incidence of flawed decisions that Kahneman and Tversky found with isolated individuals. To guard against unfair firings, for example, Toyota convenes co-workers to get their views.
The resulting uncertainty at the edges of legal application tends to incentivize most people to avoid sharp or selfish practices. A gray area of legality will drive most people to operate near the center, further reinforcing social trust and enhancing social capital. With the Australian nursing homes, for example, the operators, regulators, and other stakeholders had different visions of what constitutes a “homelike environment,” but it was precisely the uncertainty of how those disagreements might get resolved that gave all stakeholders an incentive to strive for reasonable accommodations.
What’s different here is not simply abandoning “one-size-fits-all” rules, but, most radical to the modern legal mind, allowing decisions to be made without objective proof to back them up. As in a market setting, people will make choices based on what they feel is appropriate. How do you prove what’s fair in a particular setting? Or which teachers are ineffective because they bore their students? As in other settings in a free society, people must be free to make judgments about other people, and so on up the line.
Giving people back the freedom act on their best judgment means abandoning the utopian dream of perfect fairness and uniformity. As in the marketplace, giving people responsibility to meet public goals does not guarantee success. Some people will have bad judgment and bad values. People will disagree, on practically every issue. But trying to preempt that disagreement with dense rulebooks enervates democracy. Conversely, democracy is energized by disagreement; that’s why people get involved. The giant bureaucratic blob, by contrast, is immune to the will of the people, makes sensible choices illegal, and drives alienated voters into the arms of strongmen.
Leaving aside totalitarian systems, our options for an operating philosophy for modern government are either a rigid bureaucratic system that ossifies bad choices, stifles innovation, and is morally obtuse, or an open framework of goals and principles that gives people sufficient room to succeed (or fail) in meeting them. The former engenders distrust, alienation, and a popular demand for authoritarian styles of leadership. The latter, so long as voters are attracted to practical leaders, engenders trust, social capital, and the opportunity to flourish.
The best cure to citizen alienation is citizen ownership. Americans must feel free to make sense of their daily choices, to deal with officials who also can be practical, and to elect leaders who can govern in a way that responds to voter desires and needs. That’s why America should abandon modern bureaucracy and rebuild a governing framework grounded in human responsibility.
1See Philip K. Howard, “Two Years, Not Ten Years: Redesigning Infrastructure Approvals,” Common Good (September 2015); and Howard, The Rule of Nobody: Saving America from Dead Laws and Broken Government (W.W.Norton, 2014), pp. 9-13.
2William Manning, as quoted in Saul Cornell, The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788-1828 (University of North Carolina Press, 1999), p. 229.
3See generally, Jerry Z. Muller, The Tyranny of Metrics (Princeton University Press, 2018), which argues that overreliance on metrics skews sensible choices by shifting the focus from outcomes to measurements.
4H. M. Levin, “Why Is This So Difficult?” in Educational Entrepreneurship: Realities, Challenges, Possibilities, Frederick Hess, ed. (Harvard Education Press, 2006), p.173-74.
5John Sweller, “Evolution of Human Cognitive Architecture,” from The Psychology of Learning and Motivation Vol. 43, Brian H. Ross, ed. (Elsevier, 2003), p. 215.
6Jeremy Waldron, “The Rule of Law and the Importance of Procedure,” from Getting to the Rule of Law, James E. Fleming, ed. (New York University Press, 2011), p. 25.