Rule of Law or Rule of Lawyers

Last month I posted about Philip Howard’s new book, The Rule of Nobody.

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.