ISBN 978-0-8129-8274-9 (Random House paperback with added afterword)
A couple of years ago I was studying Law and while I hadn’t even finished my Bachelor (which I never did because of moving abroad, but that aside) I had already decided upon the theme of my paper, which went into a more philosophical direction: Do Laws And Regulations Actually Improve Safety? I started collecting material and literature and although it has been published for the first time in 1994 this book so far escaped my attention. Much of the material discussed here, however, would have been of major relevance, so let’s catch up with a 2004 version that adds a new afterword to the book.
The book (which is written in an easy accessible way, and quite entertaining too) itself is divided into four parts, the new afterword and an after-afterword with notes by the author on reform activities. Each of the first three parts discusses more or less one main problem of the legal system (untamed growth of regulations, lack of responsibility/accountability and the phenomenon of ‘rights’) while the fourth part tries to suggest some solutions.
The first part is called “The Death of Common Sense” and deals with the enormous growth of rules and laws and their level of detail over the past 40 years. These regulations “often seem to miss the mark or prove counterproductive” (p.7) and the government that issues them has reasons that “often seem remote from human beings who must live with the consequences” (p.9). Examples are notoriously drawn from OSHA and environmental care legislation.
Page 8 has the idea of ‘regulatory budget’, i.e. “no law could be passed without a budget detailing its cost to society”. This idea isn’t really fleshed out in the book, but the lack of realization what a regulation with cost is something that returns also in the other parts (most of all part 3).
Should rules be as detailed as they are? Herbert Kaufman stated that “Only precise, specific guidelines can assure a common treatment of like cases” (p.9) reflecting the thoughts of the 18th Century Rationalists who wanted a self-executing body of law without involvement of human judgement. “Through detailed rules, regulation would be made certain” (p.10). The result is, according to Howard that the “regulatory system has become an instruction manual. It tells us and bureaucrats exactly what to do and how to do it. Detailed rule after detailed rule addresses every eventuality, or at least every situation lawmakers and bureaucrats can think of” (p.10) and in the end “We seem to have achieved the worst of both worlds: a system of regulation that goes too far while it also does too little” (p.11). The explanation for this: “the absence of one indispensable ingredient of any successful human endeavor: use of judgment”, which doesn’t work because “Human activity can’t be regulated without judgment by humans” (p.11) and “Human activity cannot be so neatly categorized. The more precise the rule, the less sensible law seems to be” (p.15).
Also seem the details rules not to be used what they originally are intended for - take the Occupational Safety & Health Act from 1970 that should maximize the safety of workers, but instead OSHA inspectors are out to find violations from the thousands of rules and are generally “unwilling even to discuss whether a violation has anything to do with safety”… “OSHA inspectors, in the words of everyone who has to deal with them, are ‘just traffic cops’ looking for rule violations”. (p.15)
Law and lawmakers cannot anticipate every future contingency, and even if they could language would prove to be a barrier. As Hart said: “there is a limit, inherent to the nature of language to the guidance that words can provide” (p.16). Additionally, “context is vital” (p.17) and will be of utmost importance in deciding if an action is acceptable/safe/…, but instead “lawyers instead focus on the legal language as if it were the oracle, and refuse to act without its clear permission” (p.19). Aristotle said it even better: “it is impossible that all things should be precisely set down in writing: for enactments must be universal, but actions are concerned with particulars” (as quoted on p.51).
Inspired by observations by Vaclav Havel (“…in a communist socialist society people were not allowed to act without explicit authorization. In a free society, by contrast, the presumption is the opposite: we are free to do what we want unless it is prohibited” - p.20), Howard goes as far to state that “modern regulatory law resembles central planning” (p.21) because “rigidity of legal dictates precludes the exercise of judgement at the time and place of the activity. Government … is blinded by its own predeterment rules, entranced by the rationalists’ promise that all can be set out before we get there” (p.21). The result: “the words of law are like millions of trip wires, preventing us from doing the sensible thing” (p.21).
A further complicating factor is that lawmakers and bureaucrats often do not look back and instead just stack new laws and rules upon already existing ones - sometimes or often contradictory (p.26) and further adding to the phenomenon that words can impose rigidity as well as offer clarity (p.22). A truly hilarious example of rigid application of detailed rules in found on pages 36 and 37 where the case of ‘toxic bricks’ is presented.
There is for instance the impossible task of knowing all the details: “Making law detailed, the theory goes, permits it to act as a clear guide. People will know exactly what is required. But modern law is unknowable. It is too detailed.” (p.29) This striving for detail and certainty “has destroyed, not enhanced , law’s ability to act as a guide” (p.30) and: “What good, we might ask ourselves, is a legal system that cannot be known?” (p.31).
Howard notes another problem: “When laws cannot be complied with, individual officials, who supposedly have no discretion, have complete power” (p.32) and thus: “If noncompliance can be found under any law, what protection do we think all this legal detail is providing?” (p.33).
The philosophy behind detailed rules (see the Kaufman quote above) was that fairness and equal treatment before the law was guaranteed by those. “Fairness, however, is a far more subtle concept than making all the words on the page apply to everyone. Uniformity in law is not uniformity in effect” because “Uniform application of a detailed rule… will almost always favour one group over another” (p.34). Even more because “loopholes only exist because of precise rules” (p.43) and thus those who want not to comply will find a way anyhow.
The result of all this is not surprisingly that people are losing respect for the law. Or even worse: “By emphasizing violations rather than problems, regulation creates bitterness and adversariness. everything must be put on the record. Business will not share information. A culture of resistance sets in”. (p.48)
Friedrich Hayek posed the right question that should be asked before starting to write detailed rules: “How can anything good happen, if individuals cannot think and do for themselves? Rules preclude initiative. Regimentation precludes evolution. Letting accidents happen, mistakes being made, results in new ideas. Trial and error is the key to all progress.” (p.50)
Titled “The Buck Never Stops” this part deals with the lack of responsibility and accountability. Nothing gets done, or only at a slow pace. “Reasons flow out why nothing can happen, but getting anyone to say yes is like scaling a mountain” (p.58) accompanied by “the hassle factor - the growing levels of paperwork” (p.95). One reason for this is that “how things are done has become far more important than what is done” because process “once existed to help humans make responsible decisions. Process now has become an end in itself” (p.60) and “Without a clear goal in sight, process just spins on forever”. (p.91)
This has resulted in no one taking responsibility and rather hiding behind forms and meetings: “We have deluded ourselves into thinking that the right decisions will be ensured if we build enough procedural protection. We have accomplished exactly the opposite: Decisions, if they happen at all, happen by default. Public decisions are not responsible because no one takes responsibility”. (p.61) This is a major difference to real life where procedures are “a management device, always subject to change or exception where a procedure gets in the way of a sensible result. For us, the result is paramount”. (p.62) “Rationalism rears its head again. Process is a kind of rule. It tells us not what to do, but how to do it” (p.75) which makes initiative “unlawful” (p.64) and leadership becomes “heresy” (p.73).
The original idea was simple: a set of general rules for people responsible for the execution of a civil service (p.77), however the need for checks and balances and fair, public debate eventually resulted in a situation where “courts always find a way to overturn any decision they didn’t like” (p.81). That’s how lawyers work: “Under our adversary system the role of counsel is not to make sure the truth is ascertained but to advance his client’s cause by any ethical means… Causing delay and sowing confusion not only are his right but may be his duty”. (p.86) And so we now have “circled back to the world where people argue, not about right and wrong, but about whether something was done the right way”. (p.84) There is a growing recognition that this is not the way things should be: “Confrontation and the adversary process do not create an atmosphere conductive to the careful weighing of scientific and technical knowledge, and distort the state of scientific and technical agreement and disagreement”. (p.87) While: “science, like everything, involves judgment. Mistakes will always be made. Endless scrutiny does not necessarily make for a better judgment; the loss of perspective may well make for a worse judgment”. (p.88) Howard ventures that “court decisions in fact tend to be sensible, probably because only a couple of people are looking at the issue and can see the big picture”. (p.88) And like we saw before that context is vital, decision depends upon point of view (p.89).
The idea to introduce process was of course to prevent corruption and manipulation, but “too much control can have the same effect as too little” (p.98). And there’s this: “No society I can find has ever thought that the most effective way is to treat every citizen as a crook and impose an elaborate, mind-numbing, and demanding ritual on every motion”. (p.99) As Woodrow Wilson said: “Suspicion itself is never healthful, either in the private or in the public mind”. (p.99) Plato went even further: “good men do not need laws to tell them to act responsibly, while bad people will always find a way around law”. (p.99) Fellow Greek Polybius agreed: there can be “no rational administration of government… when good men are held in the same esteem as bad ones”. (p.108)
So the effect is in the end not the desired one because “taking advantage comes naturally when government can’t easily do anything about it”. (p.100) “We have our foot heavy on the accelerator, seeking government’s help in areas like guarding the environment. Simultaneously, we have stomped hard on the brake, refusing to allow any action except after nearly endless layers of procedure”. (p.106) Manipulation is especially easy in minor cases when no one dares to take the effort, for example firing an ineffective public employee (find an outrageous example around p.103). “The irony cannot be allowed to pass: Process was intended to make sure everything was done responsibly. It has instead become a device for manipulation, even extortion”. (p.105)
What we need is to focus again: “Which is more important: the process or the result?”. (p.107) And “what if this involves a value judgment? Isn’t this the only kind of judgment that makes sense? Democracy is not intended to purge our values, but to reflect them”. (p.108) “Responsibility is what matters. Process is only one of many tools to get there”. (p.111)
The third part, “A Nation Of Enemies” discusses the phenomenon of ‘rights’, its growth over the past decades and the results - basically derailing or at least alienating an entire nation. The problem is sketched on p.116: “When you have a right to something, it doesn’t matter what anyone thinks or whether you are, in fact reasonable”. One reason for this is that the contents of the word ‘rights’ has become different: “Rights were synonymous with freedom, protection against being ordered around by governments or others” (p.118) while nowadays rights don’t as much protect but rather provide which by the nature of the rights leaves “no room for balance, or looking at it from everybody’s point of view”, instead “Rights give open-ended power to one group, and it comes out of everybody else’s hide”. (p.119) Howard illustrates this with many scary examples from among others rights for the disabled and how this has gotten out of hands: “discrimination has become an obsession”. (p.136)
In contrast to this we find JFK’s famous quote: “Ask not what your country can do for you, but what you can do for your country” (p.120) Effectively the rights have become another element in paralyzing the state. The situation should be as follows: “Making trade-offs… is much of what government does: …whether allocating use of public property, creating new programs, or granting subsidies, benefits one group more than another, and usually at the expense of everyone else. Most people expect their elected and appointed leaders to balance the pros and cons and make decisions in the public interest”. (p.117/118) Democracy is also about compromise (p.156). But this is not the case - use/abuse of rights prevents government from making reasonable judgments in the public interest. (p.126) The result: “Like printing money, handing out rights to special interest groups for thirty years has diminished not only the civil rights movement, but the values on which it was founded. Rights intended to bring an excluded group into society, have become the means of getting ahead of society”. (p.135)
Because fear reigns “only a fool says what he really believes. It is too easy to be misunderstood or to have your words taken out of context”. (p.137) The effect for business and social life is disastrous: “The absence of spontaneous give-and-take stifles the dream of mutual understanding, just as it diminishes enjoyment. Nor is it good for anyone’s success. How can good ideas spring out, how can any aspect of business run effectively, if people are afraid to talk?” (p.139) Or: “When it reaches the point where sensitivity stifles communication, it has gone too far”. (p.145)
Howard concludes that “Handing out rights does not resolve conflict. It aggravates it” (p.152) because “The fight for rights becomes obsessive, like a religious conviction”. (p.153) But: “You can’t please everybody… So why is it appropriate to handle these issues as ‘right’? Rights are a kind of wealth and, like other forms of wealth, attract hangers-on”. (p.154) “We have accepted the pretense that government services should be treated as constitutional right. They are not; they are only benefits provided by a democracy”. (p.167) But today the situation creates envy and enemies: “The injury is deeper than fights over money. Citizens feel an almost involuntary resentment when they see that other citizens, directly or indirectly, are ordering them around”. (p.170) Howard says that rights were meant to be a shield but have become a sword instead. (p.170)
The final part is titled “Releasing Ourselves” and works towards a solution. In its simplest form it’s found on p.176: “When the rule book got tossed, all that left was responsibility”.
The core of the problem: “How law works, not what it aims to do, is what is driving us crazy. Freedom depends at least as much on deciding how to do things as on deciding what to do” - “rigid rules shut out our point of view” so we “feel powerless because we are not given a choice”. “Modern law tells us our duty is only to comply, not to accomplish. Understanding of the situation has been replaced by legal absolutism”. (p.177) “By exiling human judgment in the last few decades, modern law changed its role from useful tool to brainless tyrant”, while we should know that “when humans are not allowed to make sense of the situation, almost nothing works properly”. (p.178) Even more, Howard states that “judgment is to law as water is to crops” and Hart observed that any sensible system of law must offer its citizens “a fresh choice between open alternatives”. (p.179) So, we should move away from details and towards principles because “Rules dictate results, come what may… principles do not work that way; they incline a decision one way, though not conclusively, and permit a judgment that fits the situation. Principles allow us to think”. (p.179)
The situation now is sketched again on page 182: “The effort to achieve social quiescence through clear rules, while plausible enough as a theory, has in fact infected the nation with a preoccupation with using law as a means to win: If the law is clear, we can fit ourselves into its words, and then - voilà - we get exactly what we want”. But… “human nature turns out to be more complicated than the idea that people will get along if only the rules are clear enough”. Which makes sense, give-and-take is “the interaction that weaves the fabric of every strong community and healthy relationship”. (p.183)
And by the way, do we really need all those rules? “The majority of people will do right if they’re given goals and left to get the job done” (p.184) This may not always work out as thought since “making judgments is hard, and sometimes failures are inevitable” (p.186) But, “trial and error, not a static monument, is what makes democracy thrive. Democracy was intended as a dynamic system, ever adjusting balance in a diverse society. The constant back and forth was not thought to be dangerous but protective; it makes vested power insecure and keeps society away from protracted disequilibrium”. (p.187)
“One basic change in approach will get us going: We should stop looking to law to provide the final answer”. “Modern law has not protected us from stupidity and caprice, but has made stupidity and caprice dominant features of our society”. (p.189) “Hard rules make sense only when protocol - as with… speed limits - is more important than getting something done”. (p.190) “Let judgment and personal conviction be important again. There is nothing unusual or frightening about it. Relying on ourselves is not, after all, a new ideology. It’s just common sense”. (p.191)
The afterword ("A New Operating System Based On Individual Responsibility") is written 12 or so years after the original book and has some reflections along with further recommendations, building upon the fourth part of the book. First it’s argued to restore responsibility - getting away from that “avoiding legal risk becomes our goal” (p.195) and instead a situation where people are “personally responsible” because “to induce prudent behavior, everyone needs to be at risk” (p.198)
Howard then argues to replace four fallacies with new principles:
1) The notion that law is permanent should be replaced - old law must be adjusted to meet current challenges. (p.199) One problem lies in a lot of old of obsolete law that creates problems today. “A healthy democracy requires fresh choices, constantly balancing social goals and making tradeoffs among competing public goods”. (p.201) “Government programs must constantly be reevaluated” and “every program should automatically expire” after some years. So-called sunset laws could be the tool to accomplish this. (p.202) And other action enforcing mechanisms should be applied as well, for example “if legislators refuse to make needed decisions, the responsibility defaults to another branch”. (p.203)
2) Secondly law should not be detailed, but rather simplified into basic goals and principles (p.204) Howard tells of a meeting he had with a large delegation of the OSHA after having criticized the agency. Asked about ideas about improvement he suggested that OSHA should radically simplify its regulations and redirect its energy toward actual safety, not compliance with rules: “Simplifying the regulations into a set of general principles, I argued, would liberate everyone to rely on common sense - factory foremen as well as inspectors. Mindless bureaucratic compliance would be replaced by a focus on actual safety”. “No this would never work they concluded: ‘People need to know exactly what to do’. So I asked a final question: ‘How many of you have ever read all these rules?’ No hand went up. ‘So how do you expect a factory foreman to read and understand all the rules? It’s beyond the capacity of real people to deal with this level of detail’.” (p.206)
Howard realizes that “simplifying of law will not be done with the willing cooperation of bureaucrats who’ve spent their lives micromanaging society. They will only cooperate if they can be fired when they don’t”. (p.207) So a third principle is:
3) Public employees must be accountable. (p.207) As Howard says: “Restoring accountability has many virtues. It is the precondition to simplification. There is no need to tell officials how to do their jobs if they can be fired when they don’t work out”. (p.209)
4) Finally, lawsuits have to be bounded by reasonable social norms. (p.209) “The culture of self-protection has chilled professional interaction, causing countless tragic errors as doctors and nurses keep their qualms to themselves rather than taking legal responsibility by speaking up. Any legal system that works this badly must be built upon some serious misconceptions about the rule of law. And so it is with the out-of-control American system of litigation”. (p.211) Fear reigns: “Americans no longer feel free in daily dealings, and go through the day looking over their shoulders instead of where they need to go”. “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community”. (p.212)
Concluding Howard proposes ‘America 4.0’: “Modern society is organized around the fear of bad choices… Instead of holding people accountable when something goes wrong, we demand law to guarantee something like that will never happen again” (p.213). “We are so focused on avoiding bad values that we have lost the freedom to assert good values” (p.214) But according to Thomas Edison “nothing that’s any good works by itself… You got to make the damn thing work”. (p.215)
I agree with the author’s end note on p.220 that the message of this book “remains as valid today as when it was first published. We cannot create a hands-free system of governance. Law is supposed to be a framework, not an automated program for public choices… Only people, not rules, can make good things happen. That’s as true in government and law as in every other life activity”.
And this also applies to other countries!