In his examination of why we should move away from legalism and more in the direction of discretion, Barry Lam concedes that there are strong arguments in favor of a legalist approach. His analysis of legalism continues by looking at what he sees as the selection pressures leading to legalism being further entrenched into social institutions – what he calls the two laws of bureaudynamics. The first law of bureaudynamics Lam identifies is:
Rules and their administration increase in complexity over time.
We can see this play out in many forms. Small companies and startups can often have rather vague and open-ended policies that give wide latitude for discretion. Large multination companies have voluminous writings on company policies and procedures attempting to spell out how to act in every edge case. As startups grow and eventually become large companies, we can see this process carry out. As Lam puts it:
There’s a very natural evolution in administering rules in an organization, small to large, such that, over time, rules and their administration only become longer and more complex, never shorter or simpler.
This is an almost unavoidable process, and not entirely without value, because making rules more detailed and specific helps bring out two important values in rules or laws:
Fairness requires that rules need to fully inform people about what compliance requires. Philosophers of law call this the guidance value of law.
When rules or laws are vague and unclear, it’s hard for any given person to know how they need to conduct themselves to avoid running afoul of the rules. If you don’t clearly understand what behavior falls in or out of bounds, you are subject to arbitrary enforcement. This same issue provides another important value that mirrors guidance value for those subject to laws – those who enforce the laws also need to have a clear understanding of what the law requires:
The rule of law also requires that enforcers be given sufficient instruction on when a law is violated. Philosophers of law call this the process value of law.
He cites an example of a city with a very complex noise ordinance outlining very specific noise levels permitted at all manner of locations, for all kinds of events, for all hours of the day, including a clause that noise at an individual property may not exceed the ambient noise level by more than five decibels. Applying these ideas, Lam says:
This law has very poor guidance value but good process value. The typical citizen does not own a decibel meter and does not know that decibel scales are logarithmic so as to understand a five decibel difference. The typical complainant probably cannot tell you where a violator’s property line is. But any police officer carrying a decibel meter can show a violator right away why they are receiving a citation.
But what Lam sees as the most important driver of the first law of bureaudynamics is mistrust. This leads to a demand for more complex and precise rules, partly on the part of enforcers:
The more mistrust, the more rule makers will expect the devious citizen to look for loopholes and exceptions to the rule and anticipate them, turning a rule into pages of subsections and clauses. Legislation, a saying goes, is aimed at the dumbest and most devious among us.
But this demand is driven to a greater degree by citizen mistrust of enforcers:
Similarly, the mistrustful citizen reasons that enforcers will be tyrants, exercising unreasonable power over them unless the rules prohibit it. This is why citizens, not enforcers, tend to push for high process-value rules. Given a choice, they will refuse to accept any tax law with the clause “or other similar cases” or any laws that give interpretive discretion.
This leads to the second law of bureaudynamics:
Pressures to remove discretion in rule making are far greater than pressures to grant it.
Lam describes a Supreme Court doctrine going back to 1926 called “void for vagueness” that is often applied to strike down laws that are insufficiently precise, and leave too much room for interpretive discretion:
Whether the law is t00 vague depends on two tests. The first is whether an ordinary, reasonable person can understand how to comply with the law in various circumstances. This is the guidance value test. A law without sufficient guidance value, the reasoning goes, should not be a law. The second test is whether the law encourages arbitrary and discriminatory enforcement. This is a process value test. A law on the books with absolutely no process value is one that encourages, or at least permits, arbitrary and discriminatory enforcement.
The mistrust leading to ever more complex rules also leads to a bias in favor of removing the application of individual judgment to individual cases:
Mistrust is the root of legalism. And the asymmetry between how easy it is to lose trust and how hard it is to restore it explains why we only seem to march towards legalism and never away from it. Mistrust is the common explanation for both laws of bureaudynamics. It takes one high-profile case of someone exploiting a loophole in a rule and getting away with it to transform entire institutions into legalistic ones. It takes generations of complex rule making, fanatical compliance officers, and overzealous bureaucracies gumming up efficient or effective governance for anyone to hint at the need for reform.
While Lam admits legalism has strong arguments in support of it in the abstract, in the real world the drive toward legalism is less the result of these arguments and more a result of these unfolding laws of bureaudynamics.
Still, discretion is not gone from this world, nor can it ever be. In the next post I’ll be looking at how Lam examines the use of discretion in one of the most contentious areas of this debate – law enforcement.
