When Rules Replace Trust – Richard Smith

It’s late winter as I write this review, and Elon Musk is on a rampage at the Department of Government Efficiency (DOGE). Stomping around like the proverbial bull in a china shop, he’s canceling contracts, firing government employees, and shutting down entire departments of the federal government.

And why?

Part of the reason is cost. The US National Debt stands at $36.5 trillion, and seeing as how we’re bringing in $5 trillion a year in tax revenue, while spending $7.2 trillion, that number will only grow. But a separate reason is complexity. As CEO of SpaceX, Musk is still fuming over a Federal Aviation Administration decision last year to fine his company for a paperwork violation that allegedly happened one year prior. (Specifically, the FAA is upset that a launch license application wasn’t updated to notify it that SpaceX switched fuel suppliers). 

This and other government regulatory actions have Musk convinced that rule-making agencies within the government are out of control and need to be reined in—or even better, phased out—so that common sense can reign (and his company launch more rockets). 

When I first sat down to read Fewer Rules, Better People, a new book by philosopher Barry Lam, I hoped to find a reasonable argument that Musk and DOGE are right. Is excessive rulemaking really the problem with our society? By eliminating certain government agencies, can we all become “better people”?

It turns out the situation is more complicated than that.

Where’s the Trust?

Rather than promising utopia from the elimination of rules, Fewer Rules, Better People aims to explain why there are so many rules hemming us in today, and why rules seem to proliferate over time.

If there’s a central theme to Lam’s work, it’s that rules arise from a failure of trust. Citizens don’t trust their rulers, and rulers (or elected rule-makers if you prefer) don’t much trust their citizens, either. Rules are established both to ensure that citizens act in a moral manner, and also to restrain the government from arbitrary high-handedness.

The problem is that rules proliferate over time. And why is that? First, people are clever. They find loopholes. As loopholes are exploited in violation of the spirit of the law, rule-makers enact new rules to paper over loopholes with the letter of the law. Second, citizens object to unfair enforcement, such as when crack cocaine possession is punished more harshly than powder cocaine possession. Other rules then arise to prevent unfair enforcement by the government.

Take a simple example like highway speed limits. Why do they exist?

One answer is that governments don’t trust citizens to drive safely. They don’t believe citizens have sufficient common sense to know what a safe driving speed is. Another is that citizens who do trust their judgment don’t like being ticketed and told they were driving too fast. These citizens want to restrain police powers of enforcement. 

A speed limit provides “guidance value” to citizens, says Lam. It clearly states what the rule is, so that any ordinary person can know, with a glance at their speedometer, whether they are abiding by the law or breaking it. It also provides “process value.” It tells rule enforcers (law enforcement) when a rule has been broken, so they know to enforce it, by writing a ticket, judging a defendant guilty, and imposing a fine.

But then the exceptions creep in. A speed limit is set at 65 miles per hour. But what if a citizen is trying to pass a semi truck driving 64? What if it’s snowing? What if the citizen is driving his pregnant wife to the hospital, and time is of the essence? Over time, more and more rules are enacted to deal with each of these deviations from the norm.

This gives rise to a phenomenon Lam calls “bureaudynamics.” And the first law of bureaudynamics is that “rules and their administration increase in complexity over time.” 

Over time, as the results of expanding discretion within the bureaucracy are tallied up, experience should begin to show us what works, and what doesn’t.

Here is another example, drawn from my former life as a state’s attorney: I once was prosecuting a driver accused of driving under the influence. “Of alcohol” was implied, but in an attempt to curb drunk or high driving, the legislature had written the statute to forbid driving “under the influence of alcohol and drugs.”The problem was that while the defendant tested at a blood alcohol content of 0.2, well above the legal limit, there was no evidence that she was also under the influence of a narcotic, as a strict reading of the statute arguably implied she must be, in order to be found guilty. The judge, famous for nitpicking this particular statute over this particular detail, found the defendant not guilty because, well, while she was drunk, she wasn’t both drunk and high.

So the process continues. The government established a rule. A citizen found a loophole. Eventually, the legislature took the hint and closed this loophole, by writing even more rules to cover the exception.

How do we solve bureaudynamics? Lam wants to see more trust in society, but it must be earned trust. Governments might give citizens more leeway to bend rules if they’ve proven themselves by earning (as in, ahem, Communist China) a high social credit score. Or in a less dystopian example, banks are often more willing to extend credit to a borrower with a high FICO score.

Viewed from the other side of the mirror, citizens might be willing to increase judges’ discretion to deviate from the letter of the law when rendering verdicts. This could work in both directions, for example, by punishing heroin distribution more harshly than marijuana, while going easy on the proverbial thief who steals to feed a hungry child. But to earn such trust, the judge would need a long record of behaving fairly on the bench.

Judging the Judges

But how is a society to determine which judges (or other bureaucrats) deserve their trust before handing them discretion to bend the rules, so to speak, in the interest of justice? And what should a society do when such trust is betrayed? Lam shifts from philosophizing to giving practical advice in his final chapter, listing seven suggestions to “increase discretion in a [legalistic] system of mediocre and possible unjust enforcers and … rule breakers.”

So what does he suggest?

Rules are written to promote uniform outcomes in similar situations, but context matters. To ensure fairness not only under the law, but also in some cases despite the law, Lam suggests making clear to bureaucrats that they do in fact have discretion to bend rules to promote equity (in the common law sense, not the “DEI” sense) when the situation seems to demand it. 

Still, just to be safe, Lam also suggests that bureaucrats be vetted before taking their posts, to give both authorities and citizens a better sense of how they might exercise discretion under various factual scenarios. For example, if breaking a law entails a specific punishment, how might a judge weigh extenuating circumstances, or victim-impact statements, in deciding to make that punishment either lighter or heavier than the black letter of the law requires?

No matter how much one vets, of course, mistakes will still be made. That’s a risk inherent in granting bureaucrats discretion to deviate from the rule. And so, there must also be a mechanism for fixing mistakes after the fact, and working to minimize future mistakes. In this regard, Lam proposes a sort of code of ethics for bureaucrats, under which to examine cases when discretion is exercised, to determine if it was exercised properly. In the worst case scenario, then, where a judge is found to have engaged in “patterns of egregious moral error,” he should probably lose the right to exercise discretion in the future, or even be removed from the bench.

Over time, as the results of expanding discretion within the bureaucracy are tallied up, experience should begin to show us what works, and what doesn’t. And this experience can itself be codified into a set of best practices for exercising discretion. These best practices can then in turn be used when training new bureaucrats for their posts, in informing the questions asked during vetting, and so on.

It’s not a perfect system that Lam describes, of course. It actually sounds like it could get a bit complicated. But as an alternative to a hide-bound system where rules are rules, decency and common sense notwithstanding, it just might be worth giving it a try.