I wrapped up my initial post on Lam’s book Fewer Rules, Better People: The Case for Discretion with the remark that Lam sets out to make a case in favor of legalism (defined as the view that sticking to the rules is the preferable default, with discretion in the enforcement of rules as at best a necessary evil) before critiquing it. He actually distinguishes between two schools of thought that reach similar conclusions for different reasons. One is legalism as it is traditionally understood in the Western liberal tradition, and the other is Legalism, capitalized, as put forth by the Chinese philosopher Han Fei.
Lam starts with the former:
One of the best cases for legalism comes from the importance of rules in ensuring fairness and equitability. Aristotle proposed the idea that living under the power of rules is far better than living under the power of people.
The power of rules is, of course, what is meant by the rule of law:
The rule of law states that rules and laws, not people, are what ought to determine proper conduct on the playing field, whether that is in sports, on the streets, or in the courtroom.
Lam leans heavily into sports as a paradigmatic case for the importance of rules being applied consistently and to the letter:
Referees and umpires cannot just decide that a particular touchdown looks four times harder than a field goal and so is worth twelve points rather than six. Rule makers cannot simply decide on new rules mid-game. Players and fans would never accept the legitimacy of a sport that did not have the rule of law.
Fairness and justice require that like cases be treated alike. Consistently applying the laws, as written, is a way to ensure this happens. If the law says “X conduct shall be met with Y penalty,” but police offers use discretion to enforce this rule for some cases of X but not others, then like cases are not treated alike. People are treated unjustly:
Fairness, which is an ideal of justice, requires competition and cooperation under the same set of rules, regardless of how perfect or imperfect the rules happen to be. It does not consist in allowing referees and umpires to decide, even within the spirit of a rule, not to enforce it on a given occasion. Selective discretion is a violation of this basic value and should not be allowed.
The Legalism of Han Fei, by contrast, was not motivated by concerns of arbitrariness or fairness or disparate treatment. Han Fei’s primary concern was human mediocrity:
Humans are not mediocre by nature, but rather, any arbitrarily chosen human being would be mediocre along most dimensions. The truly gifted exist, in athletic ability, in artistic talent, and in the wise governance of others. But as a population, we are not athletic; we are mostly in the middle, flanked by the most and least athletic…And this is also true of our cognitive traits. Are the judges in our society particularly fair, objective, or devoid of prejudice? The answer has to be: some are, some aren’t, most are probably in between.
In principle, Han Fei says, wise and virtuous enforcers using discretion might outperform lesser enforcers operating according to rules. But the problem is that it will not – indeed, cannot – be the case that most enforcers most of the time will be especially wise and virtuous:
As a result, discretion is a losing strategy for governance. Good governance by discretion requires the top percentile of people in terms of intelligence, wisdom, and moral character. Even if you end up finding such people now, you are not likely to find them again. To tie good governing to good quality people means failing – certainly in the long term, maybe even in the medium term. So we should tie good governance to something else: a system of rules, procedures, and regulation, something even the most mediocre can follow.
Han Fei’s was not elitist in this line of thinking – he did not think this was a problem for the unwashed masses but something that could be overcome by the upper classes of life:
Han Fei applied his reasoning to leadership as much to workers, to kings and presidents and dictators as he did to the citizens over which they rule. People who rule and govern, make and enforce laws, are also by and large mediocre, so administering punishment and rewards to them is also a job, requiring as many strict rules and regulations as any other.
Thus, according to Han Fei, when a system is breaking down or operating poorly, the real solution isn’t to try to ensure better leaders hold positions of authority. The solution is to be found by improving the system of rules by which the organization operates:
If there are problems, the problems will be with the rules of the system, and not flaws of individuals. If a particular rule has failed us, the solution is not discretion, but finding a better rule.
While small-l legalism is often associated with Western democracy and Han Fei’s Legalism is a foundational idea in authoritarian systems, both are united in their rejection of the use of discretion:
Western democracy is usually held up as a stark contrast to China’s authoritarianism, but at root they agree on a very significant point. Selective discretion is to be rejected. Arguments for the rule of law and for Chinese Legalism arrive at the same conclusions from very different starting points. Rules are blind but fair, and good rules of governance are the result of contemplative knowledge and foresight. Neither moral nor effective governance can depend on on-the-ground snap judgments by street-level bureaucrats. Whether in sports, in restaurants, or in government, fairness and effectiveness requires that the rules need to be in charge.
Lam admits there is much force in these arguments:
Arbitrariness that leads to injustice (as feared by Western liberals) and mediocrity that degrades society (as feared by Han Fei) together present a powerful case for legalism.
Still, Lam ultimately argues that while there “is good reasoning in legalism,” overall “we must ultimately reject where it leads.” However, Lam’s argument is not that we need a binary, either/or approach where we are either all-in on legalism or all-in with discretion. Instead, he argues that despite the strong case for legalism, the current system has crowded out too much in the way of discretion, and the space for discretion should be expanded:
As a result, I am not seeking to smash the regulatory state or rage against the bureaucratic machine. Instead, I want to increase both the discretionary power and the moral responsibility of the bureaucrats and their functionaries.
In the next post, I’ll be looking at Lam’s description of how the legalist approach arises, why it triumphs over discretion, and what he sees as the descriptive laws that guide how a legalist approach evolves – the Laws of Bureaudynamics.
READER COMMENTS
nobody.really
Apr 29 2025 at 11:32am
Sports/games have the quality of operating according to a fixed, arbitrary set of rules. This fixed quality enabling players to optimize their performance against a known standard, leading to clear outcomes about the winner based on the established standards. And the arbitrary quality precludes anyone from arguing that some countervailing consideration should influence the application of the rules.
At least, that’s the theory. In practice, sports occurs in a world of scarcity, so there will always be countervailing considerations. The obvious examples include playing a game when some “act of God” occurs—power outage, earthquake, building collapse, terrorist attack. Even if the rules establish a strict limit for how long a chess master has to make the next move, I expect these extra-regulatory events will influence the application of the rules.
Also, the idea that rules are fixed clearly does not apply over time. In this sense, the rules of a sport do not appear to be entirely arbitrary; rather, they are created at least in part to accomodate exogenous “real world” factors. Sports often change rules to make their game more appealing to spectators—as when football adopted the forward pass, and basketball the three-point shot. Sports also change rules to better protect players based on emerging knowledge (or growing concern) about the harms arising from the old rules. And sports may change rules to reflect social dynamics—as when major league baseball abandoned the practice of excluding black players.
Finally, sports change rules based on conscious interventions by an outside authority. While the rules of the PGA golf tour required players to walk from hole to hole, in PGA Tour, Inc. v. Martin, SCOTUS ruled that the PGA would be liable for damages if it did not permit a disabled golfer to travel between holes via a cart. In effect, the court found that the rules of the Americans with Disabilities Act trumped the rules of the PGA Tour.
Nevertheless, sports/games retain the primary quality of having fixed, arbitrary rules. For precisely this reason, they are probably a poor example for understanding the application of rules in other contexts. Bitcoin provides an interesting borderline case: As I understand it, Bitcoin operates under extremely stable rules, including rules about how new Bitcoin are issued. These rules seem to be designed to create an arbitrary obstacle to the generation of new Bitcoin, thereby ensuring that the supply of Bitcoin continues to grow but at a gradual rate that is beyond the power of human discretion. In playing this arbitrary game, Bitcoin miners consume an enormous amount of energy. Today many people conclude that the externalities related to energy consumption pose a problem, making Bitcoin’s arbitrary rules seem especially wasteful. I have heard that this dynamic has prompted other cryptocurrencies to modify their mining rules—but this change arguably reduces the confidence that people have that the currency’s rules may be subject to additional interventions in the future.
“The danger is not that a particular class is unfit to govern. Every class is unfit to govern.” Lord Acton, letter to Mary Gladstone (April 24, 1881).
“They think the way you solve things is by electing the right people. It’s nice to elect the right people, but that isn’t how you solve things. The way you solve things is by making it politically profitable for the wrong people to do the right thing.” Milton Friedman
Kevin Corcoran
Apr 29 2025 at 12:08pm
I think it depends on what you mean by saying a rule is “arbitrary.” Using the dictionary definition of “arbitrary” – that is, “based on random choice or personal whim, rather than any reason or system,” then Lam would deny that the rules of sports are arbitrary in this sense. (I, personally, am not a sports fan, nor have I ever been. At any given time of year if you asked me which sports were currently in season, I would have no idea what the answer was.)
As an example, Lam uses tennis and a rule called the “let” rule related to serves. This rule says that if the ball touches the net during a serve, then the serve doesn’t count:
The let rule, then, certainly doesn’t seem “arbitrary” in the sense of having been established by whim and without reason or system. It seems there are “values and principles underlying the rule,” as Lam puts it, rather than being merely “arbitrary.” But, Lam argues, the let rule is (at least professionally) enforced without discretion. Today, a system of sensors calls out when the ball makes any kind of contact with the net during a serve, even if the contact was so miniscule as to be imperceptible:
Still, because sensors automatically call lets, the rule gets enforced:
This is a case where Lam suggests selective discretion adhering to the spirit of the rule would be better for the game, players, and viewers:
nobody.really
Apr 29 2025 at 3:20pm
Interesting that the author would use tennis as an example.
A month ago NYT published a story about the stigma that allegedly attached to winning an ace using a loping, underarm serve.
And NYT published a story about the challenges arising from using automated systems to determine when a ball is in or out of bounds (‘cuz the automated systems often disagree with the marks that a ball leaves on the surface of the clay court).
And this gets to the question of whether to characterize a rule as “arbitrary.” I doubt that there is anything in the official rules of any tennis club that establishes a goal of incentivizing exciting, skillful playing. Rather, the goal of incentivizing exciting, skillful playing exists outside those rules, though the goal presumably influenced the formation of the rules. Thus we arrive at Gödel’s incompleteness theorems for games: Typically the rules of a game provide no basis for evaluating or challenging the rules of the game. In that sense, they are arbitrary. It is only from outside the context of a game that we can argue about whether the rules within the game promote valued outcomes (providing entertainment, avoiding injury), and thus whether we should change the rules.
In the case of PGA Tour, Inc. v. Martin, SCOTUS implicitly held that requiring a golfer to walk between holes did not violate whatever is crucial to the rules of golf. After all, would the court have authorized similar accommodations for people playing football? But this raises the question, on what basis could the court determine which aspects of the rules were crucial? In the case of hiring a firefighter, people can argue about the kinds of situations we want a firefigher to handle, and thus the qualifications a candidate for the job should have. The circumstances a firefighter is supposed to confront are NOT arbitrary; rather, those circumstances existed before the creation of the role “firefighter,” and that context permits a court to identify the bona fide occupational qualifications for the job. In contrast, there is no role of “golfer” until after someone has established the rules of golf. So I don’t know what skills a judge would bring to evaluating the question of whether walking was a bona fide qualification for playing golf in the PGA Tour.
Indeed, is golf a religion? Plenty of people act like it is. After all, it establishes goals and standards of excellence. If a judge in any better position to say which aspects of being a golfer are crucial than to say which aspects of being a Cathoic priest are crucial? To my mind, these are questions based on standards inaccessible to reason (a/k/a arbitrary standards), and are therefore beyond judicial appeal.
That said: I’m told there’s a parliamentary procedure game in which the players strive to fashion and pass motions with sufficient approval from the other players—that that the motions can indeed change the rules of the game. So maybe there are borderline cases in which the rules of a game do in fact provide for challenging the rules of the game.
Kevin Corcoran
Apr 30 2025 at 10:00am
Yes, I think Lam would largely agree with this. I’ll touch on this kind of thing again in future posts, but Lam does argue that “the rules” – whether they be for sports, laws, or policy for private companies – are not ends in themselves, but are instead meant to facilitate the achievements of certain goals, aims, or values that are exogenous to the rules. Thus we can’t evaluate the rules by means of the rules – we need to expand our consideration. And he finds this to be another problem with legalism – by treating the enforcement of rules as though the enforcement was itself the real purpose, we lose sight of that actual important values the rules were meant to help realize, which degrades us both intellectually and morally. (A future post will spell this out in more detail as well).
Monte
Apr 29 2025 at 11:52pm
Love the wordcraft. Bureaudynamics – a clever play on thermodynamics and a functional hyponym of bureaucracy. Like entropy in a closed system that results in an inefficient dispersion of energy due to impermeable walls, bureaucracies are closed systems that result in overly rigid and inefficient rules. The inherent nature of a bureaucracy is to continuously grow, adding new rules along the way in order to maintain control over its growing population of constituents. At a certain point beyond critical mass, it experiences diminishing returns to scale and must either reform itself or fail. Devolution (in the statutory sense) allows a bureaucracy to amend this process by delegating authority – and discretion – to its subsidiaries. Begging your indulgence, might we say that the Laws of Bureaudynamics are governed by a Theory of Devolution?
All rules and laws exist on a continuum of circumstances. Consider, for example, crime and punishment. Judges exercise a great deal of discretion in pronouncing sentences depending on aggravating or mitigating circumstances. Discretion, it seems to me, is a fundamental component of an ordered society.
Regarding the “let” in tennis, it seems arbitrary and unfair to allow a let return from a serve to dribble over the net and score a point, while the let serve must be replayed. For consistency, the rule should be revised to either allow all lets to play out or to start the point over. Incidentally, let serves in World Team Tennis (WTT), according to the rules, are allowed to be played out.
Barry Lam
May 13 2025 at 2:03pm
Thanks for all the discussion everyone!
Rules play different roles in a sport depending on the rule. Some rules are constitutive of the sport, it defines the sport and makes it what it is. Tennis is defined by the net, the rules about how many times it can bounce before you hit it, the size of the court, etc.
Then there are scoring rules, and these rules express what tennis players and fans value in play. For instance, in tennis, you win a game by winning at least two consecutive points, you win a set by winning by at least two games (or by tiebreaker, in which case its two consecutive points). It doesn’t have to be that way, tennis can just decide to count up total number of points one over the course of two hours of play, like in other sports. But the sporting bodies of tennis have decided that’s not the skill to incentivize for winning, hence you have players who have lost more point over the course of a match but still win the match.
These expressions of value in rule-making are what ultimately what you measure rules against, whether to change a rule or keep it what it is. The point about rule of law is that in sports, fans and players hate discretionary decision-making about point scoring, on the basis of values. They want rules about what counts as a point applying equally to all for fair play, and that’s the value of rule of law in society. Sports like boxing, when it comes down to a decision, are always more objectionable to fans. My ultimate point in the book is that Legalism is the expression of the idea of rule-of-law taken to an extreme, where all matters of discretionary decision-making are weeded out in favor of rule-making, and there is an analog in sports too. The number of pages and subclauses defining a foul in basketball, or a catch in American football, are two examples of trying to use rule-making to replace discretionary decision-making, and failing miserably at it.
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