Unlike rigid rules, an open framework of goals and principles leaves room for context-based judgment. This is how law aligns with prevailing norms of what is fair and reasonable. Such a system can be responsive and practical because, as was he case with Australian nursing homes, the people involved are able to use their authority to take responsibility and get things done.
In business, there was a movement in the 1990s to give front-line workers empowerment rather than a constraining set of rules. The idea was to throw out the procedures manual and instead give the worker a goal of pleasing the customer, subject to a few constraints.
I once suggested this sort of approach for regulation. I called it principles-based regulation. Instead of auditing banks against a specific set of rules, audit them against a set of principles for safety and soundness.
Howard is suggesting something like principles-based management of government policy. But there one has to be careful. Part of the idea of throwing out the procedures manual and instead giving someone discretion in how they achieve management’s objective is that the employee takes on accountability for results. Autonomy and accountability go together. That approach would be antithetical to how government works now. In general, no one has accountability. And government workers do not have much autonomy, either.
Separate from the question of accountability, principles-based enforcement runs counter to common-law traditions of predictability and consistency. It effectively adopts principles from civil-law jurisprudence, where precedent is more advisory than binding. That’s a good choice for creating or implementing new policies and non-punitive actions, but predictability is very valuable for demonstrating that rule enforcement is fairly and consistently applied to all subjects of a rule — or more broadly when the government picks winners and losers from the general public.
There is no possibility of principles-based governance if no one can trust judges to fairly adjudicate the principles, just like we can’t trust judges to fairly adjudicate the existing so-called ‘rigid rules’. Rigid rules are a least-worst coping mechanism to deal with all the opportunity for mischief created by loose principles. And while there is less scope for it, there is still plenty of mischief in even these ‘rigid’ systems.
But also, there is no predictability now, because there is no real “law” in the current system’s arrangement. Where I work, the lawyers get a hundred questions a week asking “what the law is”, what is legal or illegal, what will or won’t get someone in trouble or investigated, etc. and the typical – and perfectly honest and professional – answer is many pages which usually boil down to, “The judges have made a mess of this – like they do with everything – so no one really knows for sure, it could go either way, flip a coin.”
The reason there is no accountability in the bureaucracy is because without clear law there is no way to be fair in terms of telling people where the bright lines are. There is zero incentive to take on any risk, and every incentive to avoid it at all costs, or to pass the buck up the chain of command to somehow who just faces the same incentives. No one wants to be the scapegoat who is designated to take the fall when something inevitably goes wrong. The only way to be personally safe is to be extremely risk-averse and institutionally conservative in one’s approach, and autonomy is wasted on someone who faces these pressures because they won’t use it.
That’s just like how academics work so long to get the protections of tenure and then won’t actually use it to say anything controversial in their own social scene. One might as well get rid of tenure and replace it with trade-union-like policies for job security that is purely economic instead of imagining it has anything to do with motivating the production of publicly disfavored truths.
In general, there is no way to tinker your way out of the problem of how to create a class of people with the moral and human capital to be trustworthy to act as fair and wise judges. If you can solve that problem, it doesn’t matter what framework you use, they will make it work. If you can’t solve that problem, it likewise doesn’t matter what framework you use, they will make it fail.
The only way to solve the trust problem is to make everyone accountable for his actions, including judges. If you don’t do that then, at some level in the system, you’ve appointed a king.
That matches my experience in US Army labs, but I’d characterize it as a defect of too much accountability rather than too little. When every failure ends someone’s career, that’s accountability. But when success gets you a handshake and failure gets you fired, the only way to win is to do as little as possible.
Actual unaccountability looks more like certain large companies where a person can fail and fail while rising and rising.
Excellent comment and spot on. Bright lines do indeed increase predictability and predictability is the essence of the rule of law.
Kling is making the case for rule by an expert elite who will use their innate superiority and goodness to impose a better world on lesser beings. It’s the same anti-democratic bilge spewed by Yuval Levin and the rest of the Burkean bigots.
The first step to putting this farce to bed is to insist on acknowledging that agency problems are real, that is to say agents do not always act in good faith or in principals’ actual interest. Indeed the art of governance has largely devolved into rationalizing self serving behavior by agents.
Populism is simply the realization that agency problems at some point must be called out. Not surprisingly the Burkeans consider this the worst possible thing in the world. If the curret populist movements around the world should fail, a large price will be paid in increased human misery.
Are you making a claim about whether or not well functioning regulation at the high level we currently experience it is even possible, or arguing that it is possible, and Kling’s idea is the wrong one in terms of making it happen?
I ask, because while I agree with the bright lines approach overall, that requires the legislators to write those bright lines and tell the regulators to shut up and follow them. Which legislators don’t seem inclined to do, possibly because they can’t.
My personal sense is that we are past the threshold where functional regulation is possible. The mandates are too broad, spread over far too vast a population, and there is just too much of it for it to hope to work coherently together. Just like there is a functional limit on how large a corporation can be and still function well, so there is a limit on government bureaucracy, and we are way past that. Nothing we do to change the way we give orders is going to help much.until we get things down to manageable sizes.
OT but worth noting:
“Unit labor costs – the price of labor per single unit of output – rose at a 1.0% rate. They contracted at a revised 2.8% pace in the first quarter. Unit labor costs increased at a 0.1% rate from a year ago. They have also been distorted by the pandemic’s disproportionate impact on lower-wage industries.”
https://www.reuters.com/business/us-productivity-growth-slows-second-quarter-2021-08-10/
Not sure about the inflation story.
Unit labor costs in Q2 up 0.1% from a year earlier.
CPI may be up on one-offs. Used cars, oil, semiconductor chips, drought, cargo fees.
Residential rents, college tuitions are worrisome.
Principled based accountability is far more likely to be net positive in regulation (Kling) than in governance (Howard).
Government laws need to be bright lines, and clearly showing unfair use of gov’t power. Regulation needs more flexibility in the more limited regulated cases.
Nothing totally solves the agency issues, but more transparency is likely more helpful.