When Only Laws Can Say No
Jonathan Rauch has come out swinging against "Bureaucratic Legalism: the belief that the way to settle practically every conflict is through an elaborate and highly articulated set of procedures."
"Belief" is the key word in that sentence. Law itself is not the problem. On the contrary, the principles of Western law--due process, transparent rules set down in advance, equal application of the rules to all comers, adversarial representation, and so on--are among civilization's greatest triumphs. The problem comes when people decide that if a little legal process in some situations is a good thing, a great deal of legal process in every situation must be a lot better. Then you get Bureaucratic Legalism: the notion that if you get the process right, the outcome must also be right. [...] Defenders of Bureaucratic Legalism [...] seem to think that more discovery, more pleadings, and more layers of appeal will deliver better justice. They seem confident that the system is rational so long as all the rules are being followed, and all the i's and t's are meticulously dotted and crossed.
[...] Where it sees no existing formal rules, it strives to make some. Where it sees existing rules applied sporadically or inconsistently or hypocritically, it strives for uniformity and consistency. You could call this the "zero-tolerance" problem. A kindergarten kiss is an "unwanted advance" and is therefore treated as sexual harassment. Squirt guns are guns and therefore violate weapons policies. Nurofen, the over-the-counter decongestant, contains a stimulant, and therefore a Romanian gymnast who takes two pills for a head cold must be stripped of her Olympic gold medal for using a banned drug.
It is tempting to see such excesses as flukes. But Bureaucratic Legalism, like all outcome-blind bureaucratic ideologies, pushes inexorably toward extremes. It cannot, by its nature, comprehend such rules as: "Up to a reasonable point, targets of slurs are responsible for swallowing their pride and getting on with life." Or: "Up to another reasonable point, if targets of slurs punch their tormentors in the nose, authorities will pretend not to notice." Or: "Beyond that point, if the authorities must notice, they will do something that seems reasonable, which they'll make up as they go along based on what they know of the situation and the characters of the people involved." To Bureaucratic Legalism, those sorts of rules are intolerable. They are "arbitrary and capricious," or "above the law," or "taking the law into your own hands."
All very well put, no? But Rauch doesn't ask what seems to me the crucial question: why Bureaucratic Legalism? Why has reasonableness been replaced with this extreme rationalism? Some might say it's a mania for scientific thinking, an attempt to use technocratic experts to purge public life of its messy emotional content. But as I suggested on Sunday, what Rauch calls Bureaucratic Legalism is perhaps better understood as an attempt to cope with a culture that's increasingly extreme in its emotivism.
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Jul '10
Re: When Only Laws Can Say No
Reading this reminds me of this.
Aug '10
Re: When Only Laws Can Say No
Both good articles.
I was raised in that modern environment where girls are taught not to smack cads because a) violence doesn't solve problems and b) it opens you up to a lawsuit.
My life would've turned out much easier if I'd just gone ahead and smacked 'em. Or kicked, punched, whatever...
My failure to smack did neither me nor the cads any favors.
Re: When Only Laws Can Say No
Ricochet Line of the Week.
Aug '10
Re: When Only Laws Can Say No
Mr. Poulos has hit upon a very dear topic for me. I am a scientist and a regulator for a state agency that protects public health. I am also a frequenter of Tea Parties and small "gov" groups. Mr. Poulos' law-bureaucratic code distinction is a very welcomed beginning. I apply state codes & statutes which reference the Code of Federal Regulations. I have developed an annunciated policy of "Partnership in Compliance" to describe my regulatory philosophy and style. (I hope that does not convey the same cynical tone as, "I'm from the government: I'm here to help you!") This job has found me at times navigating uncharted waters in the art of reasonable, straightforward application--as well as at other times trying to promote scientifically systematic (even checkbox) behaviors by our enforcement engineers. The point is, one must prudently balance intuitive commonsense with literal reading of code in order to achieve rational enforcement. The whole matter rests squarely on the employment of people that can prudently exercise both appropriate zeal as well as restraint. While we must foremost protect public health, we must be profoundly mindful of the direct and indirect contribution of enterprise to our lives.
Aug '10
Re: When Only Laws Can Say No
Now to steer a homeward course towards Mr. Poulos' original posting. How can we check government from overlapping its belt and expanding with bizarre interest into areas of emotive and interpersonal affairs? One big help would be to populate agencies with bureaucrats of sufficient talent and classical education to be suspicious of their own tendency to over-reach and with the creativity and intelligence to sagaciously guide government with reliable principles. The tendency now is to promote, into positions of authority, technocratic apparatchiks whose cyclopean mental faculty is database management (minus true scientific insight). These individuals know nothing of Aristotle, Scholasticism, Augustine, or Jefferson. History, you ask? Scripture? These are complete unknowns, vaguely recognized and assumed to be worthy of dismissal. We desperately need to rekindle respect and parental encouragement for collegians to enter fields presently held in contempt by many who presume themselves conservatives. Both public service and academia generally share scorn by those other than the statists. These statists, on the other hand, recognize the power in co-opting a slowly advancing army of public employees and bureaucrats, narrowly trained and effectively propagandized at the helm of an inverted pyramid of multiplying, government rules. We can do better.
Jul '10
Re: When Only Laws Can Say No
Isn't Charles Hill's just-released book, Grand Strategies, about this very topic? I've heard a couple of interviews with him (including Peter Robinson's excellent "Uncommon Knowledge" session), and this whole line of thinking intrigues me deeply. Has anyone here read the book, and can you comment on its applicability to this discussion?