The Vacuum of Authority

Philip K. Howard

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Most political leaders and reformers see government failures as a management problem. Put us in charge, they say, and we'll get things working. Their record of failure over the past five decades should have prompted some self-doubt, but instead, it has fostered extremism among frustrated partisans.

Government doesn't have a management problem; it has a philosophy problem. The philosophical flaw does not concern the scope of government or the goals of public policy. The flaw is the belief that governing decisions should be untainted by human judgment — that all public choices must meet a standard of objective correctness through compliance with rules and legal procedures.

As a result, America's governing officials have lost the authority to assert and defend the core values of a free society in their daily choices. The consequences include ineffective government, a broad sense of powerlessness, and an epidemic of selfishness masquerading as protection of individual rights. The subsequent fraying of our social fabric is palpable, and well documented.

There's no organized movement to fill this vacuum of authority, because the orthodoxies on both sides of the aisle reject the role of authority in a liberal democracy. Many conservatives view state authority as the enemy of freedom, and so they demand any state action be strictly controlled in advance by prescriptive rules and procedures — at this point, 150 million words of federal statutes and regulation. Many liberals, for their part, look at social disputes through the lens of individual rights, with the predictable result that everyone's freedom diminishes because joint activities are paralyzed by the lowest common denominator.

This tightly wound legal framework fails to achieve public goals because ironically it is, at root, a form of central planning. Instead of protecting citizens' freedom, the legal labyrinth restricts it almost entirely. As Hannah Arendt observed, the "simultaneous recession of both freedom and authority in the modern world" is no coincidence: It's the natural result of attempting to govern by prescription and objection instead of by the judgment of people with responsibility.

How America finds itself tangled in a web of rules and rights is a story of suspicion and good intentions. Americans have distrusted authority since the beginning — in fact, some of the most significant turning points in American history have involved pushback against authority, starting with the Revolution. Examples include the Articles of Confederation, which were designed to protect against federal power; the 19th-century philosophy of laissez-faire, intended to prevent legislative meddling in the economy; early-20th-century progressive reforms aimed at disempowering party bosses and reining in rapacious businesses; and resistance to executive use of authority in response to the New Deal, which culminated in the Administrative Procedure Act of 1946. The rights revolution of the 1960s went even further than these earlier measures, attempting to eviscerate authority from the public realm altogether.

Sixty years later, American government is gridlocked. Democratic debate is a cacophony of horns honking without any way to dislodge the traffic jam. Observers blame political polarization for this development; it's more likely that polarization is a symptom of the powerlessness caused by the breakdown of authority.

So while Americans continue to elect leaders who promise to fix things — by embracing "change we can believe in" or pledging to "drain the swamp" — our political institutions plow ahead in the same direction they did yesterday, no matter who's in charge. Government goes not where citizens and elected leaders want it to go, but wherever dense codes and unbounded rights dictate.

This feels like our 1917 moment, when almost anything can happen. The public is hungry for overhaul: A 2019 University of Chicago/AP poll found that two-thirds of Americans support "major structural changes" to our government. Yet neither party has a practical vision for improving how government works. The pressure for extremist proposals might dissipate if schools, hospitals, public agencies, and employers were able to do their jobs sensibly and responsively. But that would require greater deference to the authority of those who have responsibility in those institutions.

Rebuilding the framework of authority needed for a functioning democracy requires no leap of imagination — that's how a constitution is designed. Nor does it require de-regulation to reduce the goals of government. What is required is re-regulation — the replacement of the current bureaucratic behemoth with a simpler structure of goals and governing principles activated by humans taking responsibility. This will require us to restore the authority of officials to use their judgment in implementing the law.

HOW RULES AND RIGHTS UNDERMINE FREEDOM

A free society has a formal framework: The state defines and enforces outer boundaries of acceptable conduct by prohibiting violence, fraud, invidious discrimination, dangerous levels of pollution, and so forth. Like a fence surrounding a corral, these outer boundaries define and protect the area of free interaction — "frontiers, not artificially drawn, within which men should be inviolable," as Isaiah Berlin put it. In removing undue fears of being killed or cheated, or drinking tainted water, the state enhances the freedom of those who act within these broad confines. As long as people do not transgress the boundaries, they are free to do as they choose, while other people are free to judge their decisions and act accordingly.

Modern government similarly aims to protect against wrongful conduct. But it does so not by proscribing outer boundaries, but by prescribing daily choices. As a result, hardly any social interaction is free of regulatory or legal risk — any given decision may violate a rule ("is your paperwork in order?") or someone's rights ("was it motivated by bias?").

Instead of establishing the boundaries of an open field of freedom, our system has installed traps and pitfalls throughout the plot. Instead of feeling free as they go through the day, Americans are trained to continually ask themselves, "can I prove that what I'm about to do or say complies with the law?" Spontaneity, which Arendt considered an elemental feature of freedom, has disappeared in most organizational settings.

How did the land of the free become the land of legal trip wires? The transition began in the 1960s, when Americans awakened to serial abuses of authority — the Vietnam War, institutionalized racism, misogyny, pollution, shameful treatment of disabled children, unsafe cars, Watergate. A shift in governing values was long overdue.

In addition to addressing these abuses of authority, our solution included an attempt to eliminate officials' authority from the public sphere. In place of authority — defined here as public responsibility, coupled with freedom of action needed to satisfy that responsibility — policymakers adopted detailed codes that not only established goals and guiding principles, but prescribed the "correct" way to implement them. Where rules could not dictate choice, we allocated decision-making authority to drawn-out, consensus-driven processes. And to ensure officials justified each choice they made, we adopted procedures that granted any disappointed individual the right to challenge the decision. In doing so, we inverted the hierarchy of authority to give individual rights primacy over the common good.

The idea behind all this lawmaking was to turn governing into a kind of software program, where officials in white coats simply apply the law without having to use their judgment or assert social norms. Such a system has undeniable appeal; both conservatives and liberals bought into it. On the right, economist Friedrich Hayek declared that "government in all its actions [should be] bound by rules fixed and announced beforehand." On the left, legal philosopher Joseph Raz advised the "use [of] rules as much as possible for regulating human behavior," since they "lend themselves more easily to uniform and predictable application." This system of clear, written rules was also the dream of the Enlightenment. "Let all laws be clear, uniform, and precise," Voltaire declared, "to interpret laws is almost always to corrupt them."

By replacing human judgment with prescriptive rules, we hoped to avoid poor judgment. But this approach doesn't work, for the same reason that central planning doesn't work. Life is too complicated for codes that aspire to what Louis Jaffe called "rationalized completeness." Rules, even tens of thousands of rules, cannot encompass all the relevant circumstances. The complex shapes of life never quite fit into the square legal holes.

This reality hasn't kept us from trying, however. Today, officials and citizens must parse through thousands of laws before making any decisions of consequence. A New York Times report on a family apple farm found that it was subject to 5,000 separate rules under 17 different regulatory programs. Doctors, teachers, public employees, and small-business owners cannot keep up with all the rules that apply to their fields. Their freedom is crushed under the weight of regulations that have piled up, like sediment in a harbor, over the past 60 years.

The maze of statutory and regulatory provisions forces public actors to focus on compliance, which diverts their attention from the job at hand. Researchers estimate that for every hour doctors spend with patients, they spend two hours on desk work. The need to comply with ever-expanding rules slows the system to a crawl. Receiving approval for raising the roadway of the Bayonne Bridge, to take one example, should have been a simple matter. The project used the bridge's existing foundations and so avoided the environmental disruption of building a new bridge or tunnel. But no official had authority to say, "just give me 50 pages on construction impacts to the surrounding neighborhoods." Approval of the project took five years, culminating in an environmental assessment of 10,000 pages plus another 10,000 pages of exhibits.

At times, authority vacuums can have truly devastating consequences. In 2020, massive forest fires in California burned 4 million acres, damaged or destroyed nearly 10,000 homes and other buildings, and resulted in 33 deaths. Given the state's dry climate, fires are entirely predictable. But because of lengthy environmental-review processes, forestry officials lacked the authority to build fire breaks that would have prevented the damage.

The problem is not environmental review per se — other countries conduct such reviews and grant permits in relatively short time frames. The problem is that officials have no power to use their judgment to, say, decide which issues are most important, or to enforce deadlines. When officials can't use their judgment to draw these lines, public processes can spin on forever.

Nothing can be accomplished sensibly, and within sensible time frames, without people exercising judgment. This is as true for public choices as it is for all others. Safety in the workplace, quality in schools and hospitals, practicality in permitting, wisdom in weighing trade-offs, and fairness in public choices are all goals that require responsible people to make decisions that take into account, in the words of Hayek, "the concrete circumstances of time and place." The authority to honor circumstances is especially important for law, which exists to defend reasonable social norms. "The first requirement of a sound body of law," Oliver Wendell Holmes, Jr., observed, is that it "should correspond with the actual feelings and demands of the community."

One supposed benefit of having detailed rules is that they prevent government from acting arbitrarily. But even government inspectors can't keep abreast of all the regulations. In their study of nursing-home regulations, John and Valerie Braithwaite of Australian National University found that U.S. inspectors typically enforced only about 10% of the rules. Nor was enforcement uniform; each inspector tended to have his own 10%. Instead of avoiding arbitrary authority, the sheer number of rules makes capricious enforcement all but unavoidable, even for well-meaning officials. For the less well-meaning among them, the impossibility of perfect compliance provides a weapon for extortion.

The proliferation of rules not only precludes officials from exercising judgment, it can also render them incapable of discerning right from wrong. In his study of federal procurement practices, Steven Kelman describes an official who took pride in the fact that he was able to look beyond a contractor's history of terrible performance and award the contract based on formal criteria alone. The likely culprit is what psychologists call "cognitive overload." When the conscious part of the brain known as "working memory" is confronted with too much detail, it freezes. If working memory can no longer access the instinct, experience, and values that reside in the much larger, subconscious part of the brain, exercising good judgment becomes all but impossible. "Our system for managing in the public sector," Kelman concludes, "may rob the people in it of their faculties to such an extent that, like a person on a mind-numbing drug, they no longer even realize that they are missing anything."

To be sure, some boundaries can and probably should be set based on hard, detailed rules — speed limits, for example, or limits on effluent discharges. But even these rules can require exceptions. In any case, their overarching organizational requirement should be the same: Is an identifiable human being responsible, and is he free to act sensibly when applying the rule?

While prescriptive rules shackle human judgment, the modern notion of individual rights further undermines freedom by skewing institutional choices away from the common good. Most joint activities require those in charge to make decisions for the good of the group. In traditional law, no one can block a supervisory judgment unless he shows the decision was unlawful. But when due-process protections are applied to a dispute, the burden of proving the decision complied with the law falls on the person in charge.

Expanding due-process protections to managerial decisions gives aggrieved parties the authority to challenge any decision made. This legal shield against official judgments contributes to what political scientist Francis Fukuyama calls a "vetocracy." By forcing those in charge to rationalize their every move, we rob them of the authority to act sensibly — to make context-based judgment calls that align with the common good.

Such a system may protect complaining individuals, but it ignores the rights of everyone else. It also ignores the rights of institutions themselves. If a manager lacks the authority to, say, terminate a lackluster employee, the workplace culture will become sluggish. When everyone realizes that job performance is irrelevant, the mutual trust needed to sustain a vigorous, cooperative work culture is replaced by people punching the clock. The institution becomes a leaky vessel that is less able to achieve its goals. This is precisely what has happened in public agencies and schools across the country, and largely accounts for the corrosion of America's public culture over the past 60 years.

Like the desire for clear law, the protection of individual rights seems virtuous and beyond argument. When the Supreme Court imposed due-process protections on daily management decisions, it believed it was installing speed bumps to protect against unfairness. "[I]t is not burdensome to give reasons," as Justice Thurgood Marshall put it, "when reasons exist."

But putting a legal magnifying glass over daily supervisory judgments has turned out to be an impassable barrier. The proof is in the pudding: Public-employee accountability has vaporized. More federal employees die on the job than are dismissed for poor performance. Since federal employees can file a grievance for any negative comment they receive from a manager, 99% of them consistently receive a "fully successful" job rating or better. Meanwhile, California has employed roughly 285,000 teachers in recent years, but has terminated an average of only two per year for poor performance. Removing officials' authority to assert and affirm the values of their institutions has made government virtually unmanageable.

Just as the prescriptive conception of clear law transformed the rule of law into central planning, expanding due process to daily management decisions severely undermined leaders' ability to manage institutions. The fatal flaw underlying both notions is in the premise that good judgment can be demonstrated by objective criteria. While human judgment can be readily judged by other humans, good judgment is rarely provable or reducible to a rule. "Amazingly few people," Peter Drucker observed, "know how they get things done."

As Michael Polanyi explained, choices flow out of our subconscious through a process of "trial and error by which we feel our way to success." Nature has wired us to do things, not to understand the reasons behind our actions. Bees are good at making honey, and tigers at stalking prey, and neither really understand how or why they do these things. Similarly, people instinctually act on what they perceive about a person or situation, not what they can prove about it.

Nor does logic have much to do with good judgment. Historian Jacques Barzun observed that no one ever bought a house or picked a spouse simply by using the force of logic. In fact, studies show that the need to justify decisions generally results in worse decisions, as people look for objective criteria to rationalize their choices. Even judges struggle to discern why a given result is fair. As legal scholar Roscoe Pound once remarked, "[t]he trained intuition of the judge continually leads him to right results for which he is puzzled to give unimpeachable legal reasons."

The Supreme Court erred when it expanded due process beyond its constitutional bounds of protecting against state deprivation of life, liberty, or property. There may be gray areas at the edges, but these rarely come up in the daily decisions that must be made in order to run our institutions. The disorderly student is being sent home, not to jail. The employee who loses a job is free to seek work from countless other employers.

Our intention in drafting copious rules and expanding due process was to protect individual freedom from arbitrary authority. But individual freedom is weak tea, as Yuval Levin and others have explained, if people are unable to join with others to create something greater than themselves. Authority is the hub of all joint activities. Without coherent mechanisms of authority, individuals are loose spokes, unable to work cooperatively toward anything.

GOALS AND GUIDING PRINCIPLES

The current operating system of modern government is unsustainable. You can practically feel it collapsing under its own weight. But fear of human judgment has an almost theological power. Only blind faith would drive people to ignore the overwhelming evidence of government ineptitude and broad erosion of individual freedoms. Yet we cling to the fantasy of clear law because we want people in authority to demonstrate the correctness of their decisions. The worse things work, the more strongly we demand decision-makers provide objective proof of their reasoning.

Our republican democracy is supposed to empower elected officials to make decisions on behalf of their constituents, not preempt their decisions. To that end, America's public law must be radically simplified into broad frameworks that authorize officials to use their judgment on the spot. Making room for human judgment will require us to simplify legal codes by replacing detailed prescriptions with general goals and guiding principles. This open framework will provide officials with the power and the flexibility to make decisions that align with social norms and the needs of those affected.

Accepting judgment by officials would enable us to shrink codebooks from thousands of pages to dozens. Such steps have been shown to be effective. In the 1980s, Australia experimented with the technique by replacing detailed rules for nursing homes with 31 general principles. The principles directed staff to provide a "homelike environment," to respect the "privacy and dignity" of residents, and so forth. Within a short period, the quality of Australia's nursing homes markedly improved.

Leaving room for human judgment in nursing-home operation empowered all involved. Employees were free to focus on serving the needs of the residents instead of complying with hundreds of specific rules. Operators could innovate and make special accommodations when residents or their families had specific requests. Regulators, who were no longer restricted to rote enforcement, could focus on gauging actual quality and resident satisfaction. Disagreements among stakeholders were not uncommon, but they were usually worked out in meetings where, instead of parsing legal language, the participants argued over what was right and reasonable.

Detailed codes in the United States, by contrast, strive to dictate every detail of how nursing homes are run — how many pictures can hang on the wall, how high the windows must be, how many hours residents should spend at activities, that the eggs served be cooked properly, and so on. Employees must complete volumes of paperwork to prove they are following every rule. As a consequence, the work culture at nursing homes is focused on compliance, not the comfort and care of residents. Too often, the result is dismal quality overall.

The common fear is that people with authority will act arbitrarily and undermine freedom. Yet a system governed by authority does not require trusting any particular official; it requires trusting the framework of accountability surrounding that official. Under a system of goals and guiding principles, officials are not, as Ronald Dworkin put it, "free to decide without recourse to standards of sense and fairness." Rather, "like the hole in a doughnut," officials are free to act only within an area "left open by a surrounding belt of restriction" defined by institutional goals. Any decision of consequence an official makes can be readily checked — by the judgment of other officials or, in serious cases, by courts enforcing principles that define the official's responsibility.

As studies of corruption have concluded, official abuse is best deterred by giving identifiable people authority to make choices and then giving others the authority to oversee them. In short, sunlight is the best disinfectant. But when no one is truly in charge — when officials are simply following regulatory code as if it were an instruction manual — there's no one on whom to shine the spotlight. Because elected and appointed officials no longer have effective authority to do their jobs, democratic accountability is largely vestigial. Voters elect new leaders, but nothing much changes. We've managed to create, in Arendt's words, a "rule by Nobody."

Nothing gets done sensibly without the judgments and action of people on the spot. Nor can the law uphold norms of fairness unless the human beings in charge are free to access their judgment. There's no Geiger counter, as legal philosopher Jeremy Waldron puts it, that starts buzzing when someone acts unlawfully. "No amount of staring at the words of a rule, then staring at the world, then staring at the words again, will tell us when we have a proper application," he observes. Law and government will work sensibly only when applied with human values and understanding. In the end, the rule of law is "a human ideal for human institutions, not a magic that somehow absolves us from human rule."

ACCOUNTABILITY BY JUDGEMENT

Our obsessive effort to guarantee correct public choices has paralyzed the public sector and suffocated our freedoms. The motivation was to safeguard against official abuses, but the error was in thinking that the correctness of public choices can be demonstrated by objective standards. We wanted to create government that is better than people; we didn't trust ourselves. Our longing for precise rules and hard proof is a variation of what Erich Fromm called the "fear of freedom." Our efforts to overcome human fallibility have converted the energy of a free society into the anger of frustrated citizens unable to get where they want to go, or even to feel free to be themselves.

At the end of his life Friedrich Hayek, a champion of human liberty, reconsidered "the supposed greater certainty" that unfolds when "all rules of law have been laid down in written or codified form." "I am now persuaded," he admitted, "that judicial decisions may in fact be more predictable if the judge is also bound by generally held views of what is just."

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.

The test of good judgment is not justification by the decision-maker, but the judgment of others. People act. Other people judge them. That's the best we can do. Ultimately, people judging people is the main currency of democracy, just as it is in life: We give people responsibility, and we let them keep it only if we believe they are using it wisely.

To the modern rationalist, allowing people to judge other people is probably the hardest concept to swallow. "Who are we to judge?" we ask ourselves. We are not satisfied with appeals to authority; we want proof. So we demand everyone follow the same rules, and we give everyone the right to challenge decisions by people with authority.

We were right to change our values so that employers could no longer engage in patterns of invidious discrimination, so that corporations could no longer pollute our environment with impunity. But we were wrong in trying to create a system of rules and rights that sidesteps the need for human judgment. This error has increasingly tragic consequences, as demonstrated in the inability to manage police departments, run decent schools, or build environmentally friendly infrastructure, and in the growing alienation and polarization of frustrated citizens.

Freedom and authority turn out to be two sides of the same coin. If the people in charge aren't free to act on reasonable social norms, then others will lose their freedom as well. We cannot solve the "elementary problems of human living-together," to use Arendt's memorable phrase, with a governing structure that robs human beings of the authority to make common choices.

A paradox of freedom is that empowering free citizens requires empowering officials to fulfill their legal responsibilities. People at every level must have the authority to act on their judgment. Other people must have authority to make judgments to hold them accountable. There is ultimately no objective certainty or proof, just people in a free society exercising their judgment to satisfy their duties. People taking responsibility, not a paralytic tangle of rights and red tape, is the cure to what ails modern democracy.

Philip K. Howard is senior counsel at Covington & Burling and the founder and board chair of Common Good, a non-partisan organization devoted to restoring the core principles of good government and a free society.


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