Barry Lam’s Fewer rules, better people: the case for discretion Makes a series of second -order arguments for why discretion on the basis of the spirit of the law must be extended on legalism according to the law of law. But he not only makes arguments for why things should be different from how they are currently. He also offers a series of concrete suggestions for implementing this expansion to discretion.
His first suggestion is to make the use of discretion an official one, instead of implicitly, part of all bureaucratic structures:
(1) Build discretion to all top-down mandates, essentially enable exceptions.
This is justified by the simple recognition that no rule will be constructed that, without exception, entails the best solution:
We must allow bureaucrats at street level exceptions in cases where morality requires that they are made, in cases where shoplifting is not a prisoner crime or where a certain drug possession does not earn ten years in prison or where buying Starbucks coffee is not a corrupt act. It does not matter that a line maker cannot propose an exception, it will arrive, so give selective discretion to your enforcers.
From making selective discretion officially, LAM goes to his second idea:
(2) Live with interpretative discretion.
Lam specifically says that this is something we have to ‘live’ because it undoubtedly has its own disadvantages. Nevertheless, LAM argues that allowing interpretative discretion is generally better, while we also encourage ourselves to develop our moral and social capacities:
In my own life I came to embrace the virtues of vague rules that know a lot well their pitfalls, that is, bad calls from mediocre people …
I have also become a fan of vague house rules, such as “Keep jobs in a timely way” and “Keep rooms in reasonable order.” Of course there will be arguments and charges that the Chore Doer operates a Maas in the law whether the enforcer is random and nitpicky. People are not completely aligned in their interpretations of timely And reasonable, But the rules develop the knowledge of a person of his own limits of timeliness and reasonableness, while forcing to think about the limits of other people. These types of rules require to think about other people, exactly what living together requires.
LAM’s third idea calls back to his second law from BureauDynamics – the idea that the pressure to remove discretion is always stronger than the pressure to grant it. To explain this, LAM makes the following suggestion:
(3) Build mechanisms in the rules and the system that periodically restores discretion as a control of the excesses of legalism, as deserved discretion clauses.
Maving discretion clauses state those who demonstrate that the ability to use good use to get more discretion, while retaining limits to the discretion of those who do not demonstrate the same assets. An example that gives LAM is from an officer who has no excessive complaints compared to another officer with much-the first would be allowed more discretion, while the second would be more limited. This is intended to work for citizens:
Deserved discretion gives a way to give people with a wise judgment more power to exercise those judgments when needed. This is not to improve the wise bureaucrats, but to get us for the better, the people they serve.
This is explicitly made in the following idea of LAM:
(4) Give all enforcers a discretionary budget, a capacity to allow selective, interpretative or assessment discretion to allow a certain limit and an increase in that budget because they show a reputation for a good judgment.
Lam sees this as a compromise that still makes it possible for some of the actual benefits of legalism to be stored:
An advantage of this system is that legalists can have it their way; The mediocre can continue to trough in their by-the-book roles without the power to bring down the entire bureaucracy. However, those who have shown an excellent judgment, the Confucian ideal, will not be impeded by mandates, poor rules or poorly designed systems that do not allow people in the system to make exceptions to rules.
But discretion must also come up with accountability. In an legalist system, those who simply apply the rules through the book have no accountability when they cause damage by forceing bad rules, and they never have to give any explanation for their decisions that go beyond Mutely gestures on a policy manual. In a world with discretion, however, they will have to be able to explain if they are questioned and should be able to do this:
(5) Bureacrats must and citizens have the right to know-specific moral decision-making frameworks that arrange their discretionary decision-making, so we not only rent bureaucrats in the book that have no way to see outside the rules of their organization.
This is not just to let bureaucrats know that they will be responsible for the choices they make. It is also to encourage citizens to expect – and demands – better from civil servants than just repeat a rule that is written for them:
Under legalism we expect nothing from our bureaucrats. With a restored discretion we have to expect much more.
The responsibility is all the more important because discretion brings the risk of real disadvantages – the fact that discretion is permitted cannot be applied in itself as a proverbial “get out of jail free card”:
Discretion means the possibility of bad, even catastrophic decisions. The fact that a poor decision is permitted by discretion does not mean that people who make those decisions cannot be held responsible for them.
To this end, LAM suggests that bureaucrats with discretion must be investigated under continuous research:
(6) In the same way that professions have ethical codes and have professional associations ethical councils, there must be ethical councils that evaluate discretionary decision -making and inform bureaucrates about how they fail. It should be possible to remove individuals for patterns of gross moral mistakes, even if discretion legally allows them.
Finally, discretion is not like a fixed Rulebook – it is a constantly evolving process. Bureaucrats must be trained to regard discretion as an art that requires consideration and judgment, instead of a fixed process of mechanical application of rules and clauses:
Discretionary decision -making, when considered a excerciseInstead of a necessary evil, all of us must let us use the same tools as other practices.
So LAM’s last suggestion for integrating a greater discretion in decision -making:
(7) There should be regular training in the latest best practices in areas where people have discretionary power, so that decision -making is informed by the best available empirical evidence.
All these suggestions are intended to help move settings over their current performance level. Lam does not think that legalism is on its way to catastrophe, but he thinks it is at best mediocre and that we can and should do it better. And the way to do better is through the value of human freedom of choice, judgment and ability to distinguish differences in circumstances instead of treating different situations through a one-size-must-all mandate:
WHERE, [legalist bureaucracies] are better than the worst fears for political philosophers. They are better than famine, tyrants, civil wars and the full lack of civil institutions. But that is a very low bar. If you are ever in a vast bureaucracy, sent to one bureaucrat from the book after the other to get a permit, medical procedure or compensation, you know how low everyone’s expectations are. You will know how helpless everyone feels in that system. We are sorry, they will say, but this is the system, these are the rules, we all have to work in it.
No, we don’t do that. We do not have to treat human freedom of choice as a poison for civil society, where we suck every last part of it and exhaust the institutions that matter the most. Instead, we can treat Agency and the cultivation of his virtuous practice as essential for all people in all jobs, especially the jobs of people in power.
This closes my sketch of Lam’s argument. In my next message I will emphasize the areas where I agree most with lamb and think his arguments are the strongest. Then I will offer some criticism and pushback against other points that he makes, followed by a final message that summarizes my general view of his book.