Lost in the Aggregate
Our government doesn't need more rules, it needs more judgment.
Government bureaucracy is big, slow, and impersonal. We all have experiences waiting in long lines or telephone queues to speak to a civil servant only to discover he or she cannot help us for a host of bureaucratic and thoroughly unsatisfying reasons. It seems cruelly symbolic that a call to the toll-free number of the Canada Revenue Agency—the institution responsible for collecting the funds required to make the bureaucracy work—frequently has a busy signal. We have come to accept that this is the natural order of things.
Legal scholar and public policy commentator Philip K. Howard challenges us to think differently. His book The Rule of Nobody: Saving America from Dead Laws and Broken Government is a clarion call to restore common sense and human judgment to government. Howard's message offers plenty to agree with, some to respectfully disagree with, and ultimately motivation to expect and demand better from our governments.
The Rule of Nobody is a manifesto for an "intervention" against the administrative state. It's an idea whose time has rightly come and should have support across the intellectual and political spectrum. The Left should support a smarter, more efficient government because high-profile inadequacies and failures undermine its case for an activist state. The Right ought to endorse it because the result should be a more limited government and greater room for personal choice and non-state action. Howard's vision, in other words, proffers something for everyone.
We've created an administrative state that's on legal "autopilot" and incapable of exercising discretion or assuming responsibility.
One of the strengths of the book is that it builds a dispassionate yet overwhelming case that modern government has become paralyzed by rules and process at the expense of accountability, discretion, and responsibility. Howard's analysis is chock full of examples. Some are mundane. Others are tragic. But the source is always the same. Prescriptive laws, rules, and regulations have come to replace common sense and human judgment in day-to-day governance.
This may not be a path-breaking observation. The aggregation of our personal interactions or experiences with government undoubtedly lead us to the same conclusions. Try getting one's driver's license or health card renewed. Try starting a new business (including a lemonade stand in Ottawa on a warm summer day) in the face of paperwork, rules, and other red tape. Or try to obtain regulatory approval to build major energy infrastructure that employs thousands of Canadians and creates significant value for our country. Each of these experiences is frequently marked by delay, frustration, and ultimately opportunity costs. Our country and communities are worse off in both financial and non-financial terms as the result of unaccountable and impersonal regulatory actions.
But what makes Howard's contribution unique and important is how he weaves together these disparate experiences into a powerful story of how government failure extends beneath aggregates and into real human lives. No single example is more damning—particularly in the present debate about "extreme vetting"—than that of Omar, an Iraqi interpreter who faced long and impersonal bureaucratic delays in his asylum application. It's nearly too sad and tragic to retell.
Notwithstanding real threats to life, Omar maintained his patience and politeness over the course of twelve months of form letters and slow responses. His call for "a speedy solution to my situation . . . [because] people want to kill me because I worked for the US army" went unheeded. Nearly one year to the day that he first applied for his visa and after sixty pages of ongoing correspondence, Omar was beheaded by the dissident Iraqi militia for helping to protect American troops. Paper shuffling and box checking led to Omar's death. As Howard writes, without a hint of hyperbole: "Whoever was receiving the letters had obviously been trained, as Hannah Arendt found with Eichmann, never to think for themselves."
It would be wrong to dismiss this case as an overdramatized reflection of xenophobic tendencies in the United States. Afghan translators have had similar experiences here in the Canadian context. Two-thirds of the applicants were initially rejected until the political arm of the government intervened and insisted on a streamlined and more humane process.
The public servants who made the first round of decisions weren't necessarily bad people. The review process had become mechanistic and devoid of common sense or human judgment. Howard calls it "automatic government," by which he means that we've created an administrative state that's on legal "autopilot" and incapable of exercising discretion or assuming responsibility.
Examples could go on and on. But the conclusion remains the same: modern government has come to lose its perspective, its decency, and increasingly our trust.
What can be done to reverse these trends? Howard sets out two linked yet separate solutions to establish "a system of government rooted in human responsibility."
The first is what he calls "regulating by principles" rather than prescriptive and uncompromising laws and rules. It's not to say that we should abandon the rule of law but rather that our legal and regulatory framework should enable individuals to exercise common sense. The present model frequently doesn't do this. It typically involves prescription over discretion and rules over judgment. The result is that good, decent, hard-working employees can lose their agency and fall victim to impersonal and distant rules.
Regulating by principles instead sets out broad objectives or goals and enables individuals to best determine how to deliver. Think of the difference between prescribing granular rules for the operations of a nursing home (such as the temperature at which "hot foods" should be cooked) and establishing basic principles to guide decision-making (such as "honour residents' privacy and dignity"). The latter experience, according to Howard, is invariably better in large part because individual employees feel ownership for their patients rather than fall victim to top-down diktats.
Principles-based regulation thus decentralizes implementation to the extent possible and empowers those closest to the ground to take risks, experiment, and find the best and most efficient means to meet public goals. As Howard writes: "Human judgment by an experienced professional will almost always be more efficient than plodding through a facility with a thick compliance manual."
He isn't the only scholar who has argued for such a change. Economist Arnold Kling, legal scholar Peter J. Wallison, and others have also contented that precision is a "bug rather than a feature" when it comes to the application and implementation of government priorities. Enabling greater discretion, judgment, and common sense would invariably carry risks, but it's hard not to see how it wouldn't be an improvement to the rigid and uncompromising status quo.
A civil servant in Ottawa isn't likely to help a refugee figure out the public transit system in Thunder Bay, but a private sponsor will.
The second recommendation is to adopt the principle of subsidiarity in our politics and to decentralize decision-making and service delivery. Subsidiarity is the idea, Catholic in origin, that matters ought to be handled by the smallest, lowest, and least centralized competent authority. It's about shifting authority, and the power to execute that authority to those institutions closest to real human needs.
Subsidiarity is generating renewed interest across the intellectual and political spectrum as we come to appreciate the extent to which it produces better results than one-size-fits-all, top-down solutions. Think of combatting homelessness or poverty, for instance. A centralized solution would naturally require some degree of conformity even though the factors that contribute to homelessness and poverty are typically individualized and highly localized. Subsidiarity or decentralized service delivery provides greater scope for such individualized interventions and solutions such as addressing substance abuse, domestic violence, or mental illness.
A recent example of the relative strength of subsidiarity is Canada's experience with refugee settlement. A growing body of evidence shows that privately sponsored refugees achieve better economic and social outcomes than government-sponsored ones. This makes intuitive sense. Privately sponsored refugees have an immediate support system and social connectivity. They have people and communities invested in their integration and ultimate success. A civil servant in Ottawa isn't likely to help a refugee figure out the public transit system in Thunder Bay, but a private sponsor will. It's no surprise then that other jurisdictions such as the United States are now intending to adopt Canada's model for private sponsorship.
This is but one example of the utility of subsidiarity to mitigate the centralizing and impersonal tendencies of modern government. Pushing down government decision-making and service delivery can have positive economic and social benefits, and it's a general direction that all governments should pursue. Howard thus rightly argues that "subsidiarity should be a core value for reorganizing modern government."
But while both ideas—principles-based regulation and subsidiarity—have merit and would represent an improvement relative to the status quo, it would be wrong to overstate their transformative potential. As long as the state is involved, there will need to be a degree of conformity and consistency in decision-making and service delivery. It's unavoidable.
People understandably expect that the government is impartial, predictable, and fair, and ultimately treats everyone equally. Clear rules and regulations are a key means of achieving this basic expectation. The risk of "special access" or "unequal treatment" is too high to fully abandon legal prescriptions. Charter challenges and other legal potentialities would be soon to follow.
That the government is primarily unionized also contributes to the tendency to conformity. Unionized work environments tend to be hierarchical, centralized, and rules-based. Howard fails to spend adequate time and space reconciling his new vision for governance with public-sector unionization, though his more recent writings have considered how to modernize human resources along merit-based lines in such an environment. High levels of public-sector union density will nevertheless limit the extent to which Howard's "personal responsibility" reforms would have their desired effects. Unless, of course, we find a way to work with public-sector unions to recognize the importance of judgment for the dignity of the working lives of their members. Doing so might be a key and unappreciated part of making government more humanist.
Remember that any reforms to grant greater discretion to politicians or public servants would still need to live up to rules, standards, and unionized contracts. It's not to say that we shouldn't consider or adopt Howard's recommendations. It's just that we ought to be cognizant of their limitations and the hard work and shift in outlook necessary to achieve them.
A more substantive and meaningful shift to subsidiarity would be to reduce the scope of government. Subsidiarity ultimately means placing responsibility with the lowest and most localized authority, and there's nothing more decentralized than devolving responsibilities to non-state, community-based organizations. Government should enable civil society to grow, flourish, and ultimately fill the spaces currently occupied improperly by the state, or dominated by it.
Civil society institutions, including charities, non-profit organizations, communities, and families, achieve better results than the government. They do this in part because they're not subject to the same prescriptive laws, rules, and regulations and in part because their institutional priorities are different from those of the state. Shifting responsibilities to communities, families, and individuals, or finding ways for the state to partner with such institutions, is the ultimate subsidiarity or decentralization agenda.
There are virtually countless things that the state presently does that it shouldn't. Here are some examples. Corporate welfare is the most obvious area of government intervention that should have bipartisan support to cease. Outdated Crown corporations should be opened up to market pressures and private-sector competition. Exclusionary zoning, restrictive land-use regulations, and burdensome building and construction regulations should be replaced by market disciplines and local decision-making. And the government should recognize the benefits of private sponsorship for refugees and shift resources to enable more of them. Reconceptualizing what government does—what it should do—is the best means for restoring common sense and human judgment in our modern life.
Howard's diagnosis is clear-eyed and insightful. He's captured the dysfunction of the modern state better than virtually any legal or policy scholar in recent memory. And his call for reform in the direction of human responsibility is powerful and thought-provoking.
But the ultimate solution to the problems The Rule of Nobody documents must be proportionate. Tinkering on the margins won't do it. We need a new vision of the relationship between civil society and the state if we're to end the paralysis and save our societies from dead laws and broken government.Subscribe