I had many good things to say about Barry Lam’s book Fewer Rules, Better People: The Case for Discretion. However, no book is flawless, and no argument leaves no room for pushback. There are several places where I think the analysis in the book falls short, or at least misses out on important insights.
While Lam’s argument for why discretion best allows people to use dispersed knowledge in a way that accounts for particular conditions of time and place is, as I said, a textbook insight from F. A. Hayek, there is another Hayekian idea that could have greatly strengthen Lam’s analysis. Hayek spoke of things like rules, order, law, and legislation, but for Hayek, these terms were not synonyms. In particular, Hayek made a deep distinction between law and legislation. Reviewing the first volume of Hayek’s Law, Legislation, and Liberty, Pierre Lemieux describes the distinction in the following way,
Law is made of those rules of conduct that need to be enforced for the maintenance of society. Historically, law is older than legislation. It was considered as given, something that a “legislator” might discover but not change.
In Hayek’s evaluation, law is organic, an order that grows and evolves, and is not the direct or deliberate product of any given mind. Law establishes and preserves the overall social order, but it does not aim to produce specific ends within that order. By contrast, legislation is a rationally directed attempt to write specific rules in order to bring about some known and desired end result. When Lam speaks about laws, he’s almost always referring to what Hayek would call legislation.
This might seem like little more than a terminological quibble, or a digression into disputing definitions. But the distinction matters. For example, early in the book Lam writes,
Big businesses, small businesses that compete with big businesses, community groups, youth sports, and anything involving the management of lots of people will require rules and their enforcement, rather than informal exchanges between people built on trust, friendship, acquaintanceship, and verbal agreements.
I think it’s wrong to say that all these forms of social organization requires written rules rather than the informal and spontaneous norms of ordinary human interaction. The way Lam has written it, it sounds as if he’s saying the presence of written rules substitutes for these informal and spontaneous norms. I think this is wrong. Written rules are not a substitute for evolved social norms – though they can obviously help compliment, secure, and reinforce those norms. Indeed, I’d take it a bit further – the success and reliability of those written rules depends critically on the strength and prior existence of the base-layer norms that govern ordinary social interaction. This is why low-trust societies tend to have such terrible results. No amount of rule-writing can bootstrap away the problems that develop when a society lacks this fundamental layer of social order.
The absence of a distinction between law and legislation leads to another possible source of trouble for Lam’s argument. Lam argues that bureaucrats, enforcers, and ordinary citizens in their day-to-day lives ought to seek to understand the reasons behind the rules, the proverbial spirit of the law, and enforce (or ignore) those rules in a way that will best embody those reasons. But the rules of an evolved, spontaneous order – laws, rather than legislation – aren’t developed according to constructivist rationality and by the kind of articulatable reasons Lam envisions. Hayek and many others have forcefully argued that there is a strong case to be made for following rules that you don’t understand and whose purpose can’t be rationally articulated.
Many of the rules of the social order fall into this category. Hayek did argue that we can still gain some understanding of the purpose of these kinds of rules, but only in a limited capacity. Still, he put things rather starkly in The Fatal Conceit when he wrote “If we stopped doing everything for which we do not know the reason, or for which we cannot provide a justification in the sense demanded, we would probably very soon be dead.”
A counterpoint that can be made in Lam’s favor is that his book is explicitly examining the rules of bureaucracy – the written, constructivist, ground-level rules of both state and private organizations that attempt to bring about some known, desired end. That is, Lam’s book is a mediation on how to think about legislation, rather than law in the Hayekian sense. Thus, one can take Lam’s book as making a case about how we should interact within the legislative layer of social order, but not as greenlighting a free-for-all to disregard law in the larger Hayekian sense. But that counterpoint isn’t found in the book – and anyone who reads the book but lacks an understanding of the important difference between law and legislation might not take that lesson to heart either.
This issue will be particularly important if Lam wants to persuade people whose thought (like my own) takes a strong cue from the thinking of people like Edmund Burke. Recall some of Lam’s closing words I quoted in my final post outlining his argument, about the need to rise above the limitations of legalism:
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 is certainly a stirring thought, and I do not deny that it has its appeal. However, there is also a strong intellectual tradition associated with people like Edmund Burke and John Selden that cautions against such stirring sentiments. This line of argument says, in effect, that when you have inherited a system that has been stable, enduring, and works tolerably well, you should be extremely cautious – pessimistic, even – in the face of stirring calls to disrupt the workings of that system in pursuit of grand and high aims.
Social order is something that is far easier to break down than build up, and something concrete that works tolerably well in practice ought to be carefully guarded over abstractions of what would be excellent in theory. Attempts to transform the former into the latter have a track record of creating gulags more often than greatness. As Burke put it,
A disposition to preserve and an ability to improve, taken together, would be my standard of a statesman. Everything else is vulgar in the conception, perilous in the execution.
Does Lam’s case fail this test? This, too, is something that could be cleared up by a greater attention to the distinction between law and legislation. I’m inclined to interpret Lam’s argument in a way that accounts for both a disposition to preserve and improve, because his focus is on the rationally constructed rules of bureaucracy rather than the organic laws of the larger social order. Still, his case would have greatly benefitted from making this point directly.
Some parts of Lam’s description of discretion in law enforcement don’t quite click for me. He describes how in particular, progressives began to seek out district attorney or prosecutorial positions in order to try to wield selective and interpretive discretion in a way more aligned with justice. Many were met with resistance from their own police forces, who were upset at their perception that the DA was no longer enforcing the law. But among the names Lam cites is former San Francisco DA Chesa Boudin. Lam doesn’t describe the specifics of Boudin’s term in detail, which can only slightly uncharitably be described as “let’s just make crime legal in San Francisco.” Lam only mentions in passing that “Chesa Boudin of San Francisco, elected in 2019, was recalled in a 2022 vote.” Someone skeptical of Lam’s thesis could latch on to this glossing over of how badly things went under Boudin, and accuse Lam of paying insufficient attention to the real risks and downsides of discretion.
Still, there are two ways Lam could respond. One is by pointing out that as part of his case, he argues discretion must come with accountability, and those who use discretion poorly may be removed from their position even if they were technically within the bounds of their discretion. Boudin’s recall was simply a case of this idea being put into practice. But a more interesting response is to argue that it would be wrong to cite Boudin as a case of discretion displacing legalism – Boudin was actually a case of the removal of discretion and the implementing of legalism, albeit a legalism consisting of his own very different rules. As Professor Hunter Baker said of the Boudin case:
The reason for the existence of great discretion in the prosecutor’s hands is to avoid manifest injustice in specific cases. In other words, there could be compelling circumstances in a particular case that would make the ordinary operation of the law unjust. A good prosecutor can apply discretion to bring about a more just result. But that discretion is inappropriate when applied to cases in a blanket fashion. While there may be virtue in leniency exercised with regard to extenuating circumstances, it is a mistake to translate discretion into a decision to ignore the law in whole classes of crime.
Prosecutors are part of the executive apparatus of the legal system, not the legislative. They are to enforce the law, not make it. By treating some laws as illegitimate or not worth enforcing, Chesa Boudin effectively acted as a kind of king.
To pick a nit with Professor Baker’s description, to say discretion has been “applied to cases in a blanket fashion” is really just saying that discretion isn’t being applied at all – it means discretion has been replaced with a rule. A blanket decision is by definition one that is indiscriminate to specific circumstances, and it does not allow for distinctions to be made or allow for the discretion those distinctions require. Boudin, it can be said, used his power as DA to remove discretion from his prosecutors and replaced it with his own top-down mandates and rules. Indeed, this has been said by a prosecutor who had been working under Boudin:
“I agree with the spirit of some of the policies that he’s implemented, but where Chesa has failed is by removing prosecutorial discretion completely,” said Brooke Jenkins, a former homicide prosecutor who left the DA’s office in October and joined the recall movement.
Lam’s practical recommendations also leave me less than satisfied. I certainly recognize his laws of bureaudynamics in action – and I’ve witnessed organizations evolve through them firsthand numerous times. Lam recommends things like making rules that restore discretion periodically, having organizations that review the use of discretion as well as offering regular training into the most up to date information about discretion can best be employed. But why would any of these steps, themselves, not eventually end up getting caught up by the laws of bureaudynamics?
Lam suggests that “there should be ethics boards that evaluates discretionary decision-making and informs bureaucrats of how they are falling short” – but what will prevent these boards from themselves becoming the kinds of legalist institutions Lam is trying to excise? We can’t just assume these boards will be exempt from the laws of bureaudynamics, nor can we assume that the rule-making Lam recommends to insert discretion into the rules won’t itself go through the very processes that Lam identifies.
As is often the case, Scott Alexander put it well. Using the term “Moloch” as a metaphor for social processes that tend to trap societies in an inadequate equilibrium (the tragedy of the commons would be a classic example), Alexander described a “rookie mistake” people make:
The rookie mistake is: you see that some system is partly Moloch, so you say “Okay, we’ll fix that by putting it under the control of this other system. And we’ll control this other system by writing ‘DO NOT BECOME MOLOCH’ on it in bright red marker.”
(“I see capitalism sometimes gets misaligned. Let’s fix it by putting it under control of the government. We’ll control the government by having only virtuous people in high offices.”)
Lam recommends the use of ethics boards to review the use of discretion as its exercised by street-level bureaucrats. To me, the next obvious question is, “What will prevent those ethics boards from eventually becoming sclerotic, legalistic-to-the-extreme institutions like Institutional Review Boards? How will they be insulated from the laws of bureaudynamics?” If there’s an answer to this question in Lam’s book, I wasn’t able to discern it.
In my next and last post in this series, I’ll offer some final thoughts on Lam’s book overall.
