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.
