Ideas can often be introduced to us in unusual places. The British comedian David Mitchell once quipped that his introductions to Proust and Wagner came from Monty Python and Bugs Bunny respectively. In my own life, I was first motivated to think about the argument over the relative value of rules and discretion while watching the then newly-released TV series 24 with my father. As he put it at the time, there are two forces at play in the world that often work at cross-purposes with each other – attention to procedure, and getting the job done. The protagonist of 24, Jack Bauer, was very much into the “just get the job done” side of things and frequently disregarded rules and procedures to do so, much to the consternation of many of his colleagues and superiors.
Of course, this tension has implications beyond its ability to make for good television, notwithstanding how entertaining it is to see Jack Bauer bark out “There’s no time for that!” at one of his rules-oriented colleagues before charging into action. The interaction between acting according to rules and acting according to discretion is of enormous importance in many areas of life, and finding the right balance between the two is one of those areas where there is an very broad range for reasonable disagreement. A recent book, Fewer Rules, Better People: The Case for Discretion by the philosopher Barry Lam makes the case that modern society has moved too far into rules, and needs to allow more space for discretion.
(And, as is always the case when I do these long-form reviews, my posts will simply be my attempts to present Lam’s arguments as accurately as I can. My own views and evaluation of Lam’s arguments will be saved for the final posts in the series. If readers have questions or comments, my responses will be meant to reflect the view contained in Lam’s book rather than my own.)
Lam opens by giving a broad statement of how deeply entrenched rules and procedures have becoming into living modern life:
Besides death and taxes, the third great certainty about civilized life is bureaucracy. You cannot live or die without submitting proper paperwork to the proper authorities. Be born without a birth certificate and you will not exist. Die without a death certificate and you will continue to owe money to a government unable to recognize that you no longer exist. Try to earn, win, or even give away any significant amount of money and you will need to fill out some series of forms, pay some kind of administrative fee, and stand in some line.
Furthermore, Lam argues, this drive towards rules and procedures for everything is self-perpetuating. In any organization, as new situations emerge, new rules are created to account for them. This is especially true when something disastrous happens. In the wake of a striking event, the natural tendency is for people to say “If procedure X had been in place, this could have been prevented. Therefore, from now on, everyone must follow procedure X in all cases.” This process piles up and builds on itself:
One scandal is enough to cause major procedural reactions. It is built into the evolutionary structure of organizations of scale to encounter problems and liabilities and to fix them by formulating a new rule sent out by memo for other people to implement. It is part of that same evolution for someone somewhere to find a loophole in the rule, leading to an additional clause, culminating in dozens of pages of fine print, and then a computer system that collects, organizes, and sends information in accordance with those rules.
Eventually this accumulation of rules and regulations grows to the point that people can barely operate within the system anymore:
Bureaucracy in theory is supposed to be an essential solution to the problems of social organization, but in practice it often leads to a frustrated citizen staring incredulously at a helpless worker in a system with no good choices among a mountain of rules.
Lam’s case is not that rules are intrinsically bad, or that rules can be dispensed with altogether. He argues that any system will always require a combination of rules and discretion. But he defines the debate in terms of which of the two is seen as more desirable, and which of the two is considered at best a tolerable departure from the desirable. Those who argue for the primacy of rules over discretion are, in Lam’s terminology, referred to as legalists:
The legalist believes that justice requires detailed and sprawling rulemaking, with discretion a necessary evil (because rules are imperfect). I believe that justice requires discretion, with complex rulemaking a necessary evil (since rulers are imperfect).
In addition to arguing against legalists, Lam realizes his case will be met with suspicion by people among a wide range of political philosophies, such as libertarians:
Even libertarians, who are no fans of burdensome and complex rules, believe that discretion is bad. Top-down authority in general is suspicious, so more top-down authority [in the form of discretion] given to bureaucrats is an evil.
Left-anarchists, too, would object:
Similarly, in the anarchist left, where direct democracy is an ideal, no one should have special authority to sidestep or bend rules. That would be to give a member of the community unequal power, a most repugnant state of affairs in an anarchist society.
In contrast, Lam argues that “discretion is a constitutive feature of a well-run institution that seeks to maximize fairness, justice, efficiency, and effectiveness.”
But in order to effectively argue against legalism, Lam needs to first define what it means to be a legalist and consider the arguments in favor of a legalist approach – arguments that Lam admits are strong and weighty. In the next post, I’ll be outlining Lam’s explication of the arguments for legalism.
READER COMMENTS
steve
Apr 22 2025 at 1:53pm
Being an enlisted sailor in the past I learned a lot about discretion and how and when to break rules. If I do say so I was very good at the midnight requisition. Then, running a corporation for almost 20 years and chairing a medical department I had to enforce rules, and make them up sometimes, while deciding when and if to engage in discretion. It will be interesting to see how Lam resolves this.
My lived experience is that people who veer to extremes at either end make poor leaders/managers. For me I think this would be hard to put into words as to when it is best to take the right approach, though I would say that if you think you are having to invoke discretion too often there is probably something wrong with the rules. Maybe this is like pornography? You can only know when its ok to invoke discretion when you se it.
Steve
nobody.really
Apr 22 2025 at 3:30pm
1: If I recall correctly, in The Protestant Ethic and the Spirit of Capitalism (1904-05) Max Weber argues that the self-discipline necessary for capital accumulation grew out of Calvinism. But today, the religious spirit that animated capitalism has been replaced by a rationalist pursuit of wealth and efficiency. This led to the “iron cage” of impersonal bureaucracy replacing more personal forms of social organization such as feudalism and tribalism. Weber argued that from time to time charasmatic people would arise and lead people to break free from the seemingly irresistible power of bureacracies, resulting in more discretion but less stability.
2: In Abundance (2025) Ezra Klien argues that our glut of institutions hamstrings government’s ability to do (and especially to build) pretty much anything. If you understand the value of property rights as making a property owner’s world more predictable, then these institutions work; the status quo prevails. Klein argues that this much stability is choking us.
3: But while Klein argues that the current level of stability is “too much,” I don’t recall any specific articulation for how to strike the appropriate balance between stability and dynamism. If I didn’t know better, I might think Klein was promoting Trump’s style of governing–boldly pursuing outcomes, blissfully unconstrained by institutions. Is Trump is the fulfillment of Weber’s prophecy?
I don’t need to be persuaded about the merits of the rule of law, nor about the merits of discretion. I (and Trump) need insights about how to balance the two.
David Seltzer
Apr 23 2025 at 10:40am
Kevin: Really interesting post. I think the burgeoning regulation problem is similar to positive feedback process. To wit. The outcome of a process reinforces the inciting process to build momentum. Shock(s) or perturbation(s) called A , initiates response B which in turn produces more of A until it blows up. If chaos is disruption within a system, wherein current structures become unstable, I suspect new possibilities can emerge, and better order is obtainable.
Monte
Apr 24 2025 at 12:37am
The Kydland-Prescott model is a useful heuristic for prioritizing rules over discretion in policy-making, which distinguishes between “time-consistent” (long-run) vs “time-inconsistent” (short-run) regulatory frameworks. However, critics argue the model relies too heavily on rational expectations and fails to adequately account for unanticipated shocks (ie. Financial crisis, pandemics, wars) that require discretion.
Lam inverts the model by insisting discretion take precedence over rules, where rules, rather than discretion, are a necessary evil. One example he provides is the inconsistency of attitude towards rules among Libertarians. They decry rules on private citizens in the name of liberty, yet insist on imposing as many rules as possible on politicians.
I personally favor of Lam’s position with the caveat that rules, like exclusions and riders on an insurance policy, be incorporated into discretionary policies to compass actions by the government under ordinary and extraordinary circumstances. But Kevin may convince me otherwise before he finishes this excursion.