Tuesday, May 6, 2014

Rule of Law or Rule of Lawyers

In it Howard argues that bureaucratic overregulation produces a condition where no one has the freedom or the discretion to make a decision.

Obviously, life requires rules. And yet, when all decisions are dictated by regulation, no individual can be held accountable or be responsible for the consequences of a decision.

The price is public virtue.

In Howard’s words:

Without the freedom to act on moral values, there is not even a vocabulary for public virtue.

The situation comes close to what was called, in ancient China, legalism.

In a rigid bureaucracy bureaucrats are not permitted to adjudge each problem on its merits. Strangely enough, it fits well in a culture where people are implored not to be judgmental.

Recently, Howard’s book was excerpted on The Daily Beast. Here, he argues his case:

The missing element in American government could hardly be more basic: No official has authority to make a decision. Law has crowded out the ability to be practical or fair. Mindless rigidity has descended upon the land, from the school house to the White House to, sometimes, your house. Nothing much works, because no one is free to make things work.

Automatic law causes public failure. A system of detailed dictates is supposed to make government work better. Instead it causes failure.

The simplest tasks often turn into bureaucratic ordeals. A teacher in Chicago who called the custodian to report a broken water fountain was chewed out because he didn’t follow “broken water fountain reporting procedures.” On the first day of school he was required to read to his students a list of disciplinary rules, including this one, just to start things off on the right foot: “You may be expelled for homicide.”

One appreciates the no-fault aspect of Howard’s analysis. And yet, all of these rules and regulations did not just happen all by themselves. It might feel like the rule of nobody, but "nobody" does not have a vested interest in the continuation of the state of affairs. "Nobody" is not profiting from the situation. It feels less like the rule of law than like the rule of lawyers..

But pay a visit to the innards of the giant machine, and mainly what you find is not calculating people trying to get something for someone, but a comedy of rules without reason….

Bureaucracy disempowers people from acting morally.

Howard suggests that Congress should be held accountable.

In his words:

Practically every area of regulatory oversight—health care, schools, consumer safety, the environment, public personnel—is governed by obsolete legal structures. In each case, the main problems arise from unanticipated consequences of well-meaning laws—and the almost unbroken record of neglect by Congress to adapt laws to current public needs.

Surely, there is value to the recommendation. And yet, as we have seen, to our chagrin, government agencies seem perfectly capable of producing more and more regulations, without benefit of Congressional oversight.

It we want to return to public virtue and personal freedom in the implementation of laws, we need to hold someone accountable. Congress perhaps, but, perhaps more importantly, we should aim at undermining the unholy alliance between government and the legal profession.


JKB said...

I wish I could remember where I read it and the exact quote but I did find the observation revealing

In the 1970s, an army of lawyers declared war on the People of the United States and have been conducting a guerrilla war ever since.

It fits, they blend in with the populace then strike to do real damage before withdrawing back into the crowd. There are thousands of small units working independently but each hopes to bring down the Republic and reshape it to their own idea.

David Foster said...

Clearly the legal profession has too much power in American society and particularly in government. But even if no lawyers existed at all, the growth of governmental scope necessarily implies either rule-driven bureaucratic behavior, or runaway administrative tyranny, or both. See Peter Drucker on why government must be either "a government of paper forms" or a "mutual looting society:


David Foster said...

Also see the interesting comments of a Spanish naval official (from 1797) on why his country tended to lose battles with the British...also, the American trend toward rule-driven bureaucratic behavior.


Anonymous said...

In the case of Sotomayor, it's the Rule of Me.

Since aff-action was good for HER, it's good.

So, if someone steals money and gives it to Soto, is that good too? Yes, according to her logic.

People like her mask personal interest and greed with 'social justice'.

Wise Latina?