THE FREEDOM TO MAKE A
DIFFERENCE
At lunch one day with a close friend, a respected journalist, I mentioned that a broad coalition had come together behind the idea of creating expert health courts. By making justice reliable, I explained, doctors would no longer have the incentive to squander billions in defensive medicine. With an expert court that could sort through the complexities of medical judgment, doctors would feel more comfortable being open about uncertainties and errors. Patients injured by mistakes would get paid more quickly and reliably.
Eyes flashing, she interrupted. “Who would guarantee that these judges weren’t in the doctors’ pockets?” I suggested that the judges could be appointed through a neutral screening panel. The retort was immediate: “Who will appoint the screening panel?” Reputation and professional character should stand for something, I suggested. After all, we can’t abdicate responsibility just because that involves the exercise of human judgment. As I talked, the journalist—remember, this is a friend—looked at me as if I’d been caught cheating.
There’s a lot going on in that little exchange. The distrust of authority is palpable. The core assumption is that society can be organized without human intervention. The idea of a judge making legal rulings on standards of care struck her as an invitation to abuse, a form of tyranny instead of a key ingredient of the rule of law.
This is the mind-set of our time. No idea is more unpalatable to the modern mind than giving someone authority to make choices that affect other people. That’s why we have law, or so we believe—to dictate or oversee almost any life activity. Law, we think, should protect people from the judgment of others.
Our fears of human authority are hardly irrational, particularly in an anonymous, interdependent society. Decisions by judges and officials affect our lives in countless ways—the air we breathe, the scope of our health care, the fairness of justice, our careers, the success of our schools, and the safety of toys. Who are these people? They can do their jobs well, or poorly. A judge can be fair, or one-sided. Perhaps it is natural that we want a thick covering of law to insulate us from their choices and, just in case, a legal self-help kit if some decision emerges that we don’t like.
Now that we have forty years of experience with this expansive concept of law, however, we can safely conclude that it wasn’t a good innovation. The goal was to protect against unfair authority, but the effect was to preclude fair authority. As an unintended part of the bargain, we lost much of our freedom.
A crowded society can’t operate unless officials have the authority to make common choices—drawing the boundaries of lawsuits, for example, and maintaining order in the classroom. Our freedom depends on these choices—to allow our children to focus on learning, and to let us go through the day without walking on eggshells. The people making these choices are not the enemy, but our surrogates. Many of them are the people next door—teachers, principals, counselors, ministers, nurses, doctors, managers, foremen, and inspectors, as well as public officials and judges. We need them to do their best, not be paralyzed by law.
There’s a lot of talk about the decline of leadership in our society. America lacks leaders not because of a genetic flaw in our generation, at least not one that anyone has discovered. We lack leaders because we’ve basically made leadership unlawful. America doesn’t even allow a teacher to run a classroom, or a judge to dismiss a $54 million claim for a lost pair of pants. Washington is legally dead, unable to breathe any sense into outmoded laws, and unable to prevent special interests from feeding off its carcass.
Social commentators also note the decline in civic involvement. Robert Bellah finds that freedom has been redefined—instead of the power to make a difference, Americans increasingly view freedom as the right to be left alone. Robert Putnam in Bowling Alone talks about the loss of “social capital” when people no longer participate in community activities. Apathy in America is not our natural state, however. It too is caused, at least in part, by a sense of powerlessness. What good are the parents’ ideas if the bureaucracy prevents the principal from acting on them? Why bother to get involved in politics when nothing sensible seems possible? “Each individual feels helpless to affect anything beyond the immediate environment,” Professor Warren Bennis observes, “and so retreats into an ever-contracting private world.”
Law is supposed to be a structure that promotes our freedom. It does this by setting boundaries that define an open field of freedom. Instead law has moved in on daily life, becoming the arbiter of potentially every disagreement in a free society. We’ve asked law to do too much—trying to enforce fairness in daily relations is not freedom, but a form of utopia that predictably degenerates into squealing demands for me, me, me.
We need to snap out of our legal trance. Freedom is not defined by fairness—that’s hopeless, because everyone has a different view, usually tilted toward himself. Freedom is defined by outside boundaries of what is legally unfair. There’s a difference: Setting outer boundaries allows people to make free choices, whether it’s running the classroom, managing the department, or putting an arm around a crying child. Bring law into daily disagreements, and you might as well give a legal club to the most unreasonable and selfish person in the enterprise.
The dream was to create a legal system that was self-executing and no longer subject to racism and other societal abuses. The goal was understandable. But law is only a tool, made by humans and only as good as the humans who are using it. Law can’t make any final decisions, at least not without unleashing all the idiocies of central planning. For anything to work properly (including law), humans on the spot must make choices.
Still, you might say, legal process can make people justify the fairness of their decisions. That’s what due process is all about, putting government to the proof before it takes away our “life, liberty or property.” Why not use due process to guarantee fairness throughout society? That’s what we’ve been told is innovative about modern law—make people in authority justify their choices to whoever’s affected. Typically American, we think we can have it all. Let’s have law everywhere and freedom too. Of course teachers, counselors, officials, and others can make decisions. They just need to justify their decisions in a legal proceeding.
Justification is now part of our daily culture. We demand it of others and expect it of ourselves. You’d better not make a decision that affects someone unless you’re prepared to justify why it’s fair.
But most decisions, although readily second-guessed by someone else, can rarely be justified in a legal sense. How do you prove that $54 million is an absurd amount for a pair of pants? It just is. How do you prove that sending Johnny home for misbehavior is fair? Well, I’m the principal here, and I know Johnny, and I think it’s fair. People just have to decide. These judgments can be wrong or unfair, and that’s why we can give others the authority to overrule these decisions. But rarely can people prove the wisdom or fairness of their choices in any objective way.
The confusion of good judgment with legal proof may be the most insidious fallacy of modern law. Due process was not designed as a litmus test for good judgment—it was designed as a high hurdle that the state had to cross before taking away a citizen’s life, liberty, or property. We shouldn’t be surprised that expanding due process to daily choices discourages the choices needed to get through the day. Putting daily decisions through the legal wringer does not make the decisions better. It gives us parents who make legal threats over bad grades, and officials who put handcuffs on five-year-olds.
The overlay of law destroys the human instinct needed to get things done. Accomplishment is personal. Anyone who has felt the pride of a job well done knows this. The power of freedom, as well as the joy of personal fulfillment, comes from spontaneity and invention, not logic and proof. Somehow we must learn to appreciate again the complexity of human judgment, and redirect our fears toward making our own judgments about people and their decisions, not trying to come up with a system that is better than mere mortals.
HOW LAW UNDERMINES GOOD JUDGMENT
Societies operate under preconceptions that are rarely expressed but are implicit in everything that we do. The reflexive distrust by my journalist friend is a fair warning that what I’m saying disrupts some deeply felt preconception. The radical idea here is this: Right and wrong can’t be programmed or proved. It’s always a matter of personal judgment. Modern societies have been organized on the incorrect premise, as Vaclav Havel observes, that “the world . . . is a wholly knowable system, governed by a finite number of universal laws that man can grasp—objectively describing, explaining and controlling everything.”
The quest for objective truth is not merely futile, however. It is actively destructive of good judgment. People who feel they must demonstrate the correctness of decisions, studies have repeatedly shown, will make worse decisions. This seems counterintuitive, I know. It’s hard to argue with the logic of more logic. But trying to take judgment apart into logical parts—the main goal of modern legal process—usually ends up ruining it. This is particularly true with everyday choices. Choices readily justified are those with a logic that can be replayed with objective facts. “I followed the rule.” “I ordered the extra test.” People start going through the day looking for objective markers that they can point to. What can I do to demonstrate that this was the right or fair thing to do? Pretty soon the quest for logic leads people to some irrelevant place, far away from the real world of accomplishment.
What modern law fails to appreciate is that judgment is only partially conscious. “Amazingly few people,” management expert Peter Drucker observed, “know how they get things done.” Humans often act brilliantly without knowing why. This shouldn’t come as a surprise. Humans, like other living things, have capabilities that are hard-wired into our genetic code. Bees are good at making honey, and tigers effective at stalking their prey, but neither could sit on the witness stand and explain how they do it.
Humans have a kind of gyroscope that allows them to lean this way and that to get to their goals without ever comprehending exactly why choices were made. The gyroscope, which is the product of experience, values, and evolution, is hardly unerring, but it is far more effective than any train of logic. In Personal Knowledge, scientist-philosopher Michael Polanyi explained that relatively few lucky people have the ability to think their way through most situations. Instead they go through “the usual process of unconscious trial and error by which we feel our way to success and may continue to improve . . . without specifiably knowing how we do it.”
Success hinges on people feeling free to act on their instincts. In Blink, Malcolm Gladwell tells the story of a fireman who ordered all his men out of a house before it collapsed. He was hard-pressed to explain why he thought collapse was imminent; later investigation revealed that what looked like a kitchen fire was in fact raging in the basement. The fireman subconsciously felt the heat coming from the floor.
For routine tasks, the conscious brain usually takes a back seat to instinct. Mike Rose, in The Mind at Work, observed how plumbers, waitresses, and others do their jobs. What he found was that they “disappear . . . into the task,” reacting without conscious thought to the numerous subtle factors confronting them. The carpenter can tell by the sound of the saw that the cut will not be proper. The waitress can prioritize service on a busy day by reading the anxiety levels of different people. Judgment is reflected generally in action, not conscious thought: “our knowing is in our action.”
In more complex tasks, the active brain still takes cues from instincts. In Complications, Dr. Atul Gawande writes about how surgeons feel their way through a bloody cavity to find and clamp the broken artery. “What you find when you get in close . . .” Gawande writes, “close enough to see the furrowed brows, the doubts and missteps, the failures as well as the successes, is how messy, uncertain, and also surprising medicine turns out to be. . . . The thing that still startles me is how fundamentally human an endeavor it is.”
Inserting legal justification into daily choices injects this hidden process with a self-consciousness that, at least much of the time, is the path to failure. Polanyi describes how making someone self-conscious about what he knows how to do causes him to falter and often fail. A pianist can’t play if he thinks about how he’s hitting the notes. Professor Richard Arum, in his influential study on the effects of law on disorder in schools, Judging School Discipline, explains how legal systems disorient teachers: “[I]t is this hesitation, doubt, and weakening of conviction . . . that has undermined the effectiveness of school discipline.”
Surely, you might say, people can explain why they did something. Indeed, but only to a point. An explanation can help the listener form his own judgment. Facts are always important. For tough choices, “sleeping on it” often allows our subconscious wisdom to seep into our conscious understanding. But these feelings and judgments rarely rise to the level of proof. Judgment is a black box. Psychologists Richard Nisbett and Timothy Wilson conducted a study that concluded that people have an innate inability to report accurately on their cognitive processes, typically coming up “with a plausible cause” instead of basing the explanation on “any true introspection.” Police officers who catch a criminal often have a terrible time explaining why they felt there was “probable cause” to stop the criminal in the first place. So they make up reasons, part of a phenomenon known as “testi-lying.”
To the modern mind, individual judgment is unsatisfactory as an organizing principle because judgment can vary widely. Reasonable people can approach the same problem very differently; this life truth is learned by every child watching her parents disagree. Human variability is a nightmare to legal planners looking for all decisions to be based on objective logic. But it is precisely this originality that gives freedom its power. Determined humans can accomplish amazing things if allowed to do it themselves. There are a thousand ways, as they say, to skin a cat.
The utopian aspiration of choices rolling off an assembly line of logic always results in a wreckage of the original goals. “It is a profoundly erroneous truism,” philosopher and mathematician Alfred North Whitehead observed, “that we should cultivate the habit of thinking of what we are doing.”
The precise opposite is the case. Civilization advances by extending the number of important operations which we can perform without thinking about them. Operations of thought are like cavalry charges in a battle—they are strictly limited in number, they require fresh horses, and must only be made at decisive moments.
Tocqueville understood this perfectly: “If man were forced do demonstrate for himself all the truths of which he makes daily use, his task would never end. He would exhaust his strength in preparatory demonstration without ever advancing beyond them.”
Freedom is not argument, or explanation, or plausible justifications. Freedom is mainly choice and action. To restore our freedom, we have to purge law from most daily activities. “Good and bad are but names very readily transferable to that or this,” Emerson explained. “The only right is what is after my constitution, the only wrong what is against it. . . . We cannot spend the day in explanation.”
The test of your judgment is not your justification but the judgment of others. Reclaiming the freedom to do whatever you want, or what feels right to you, requires one condition: Others have the same freedom, including the freedom to make judgments about you. The path back to freedom is letting all citizens, especially those in positions of leadership, be free to act on their best judgment.
LIBERATING LEADERSHIP
“When I was growing up,” Joe Tanner remembers, “teaching was an honorable profession . . . My parents were both teachers, and they were held in high esteem in our community, like doctors and lawyers. They helped form the character of generations of young people.” Public service was also honorable, and Tanner had a distinguished career in a variety of public jobs, including as head of Georgia’s Department of Natural Resources. It was Tanner who, working with Governor Zell Miller, organized the overhaul of Georgia’s public administration to release state employees from the bondage of civil service.
Most adults of a certain age remember a time when teachers were role models, not just people on the clock. Unimaginable as it may seem today, lawyers were the “aristocrats,” Fareed Zakaria recalls, respected for their integrity. Doctors cared for the indigent as well as those who could pay. Political leaders were at the top of the social order. Society was hardly perfect, but there was a sense that people were important to each other. Standing in the community meant something. We were in it together.
How times have changed. The general sense today is that teachers are losers, lawyers are sleazy, doctors are greedy, and public service is the job of last resort. Politicians are hypocrites. Community is a hollow word. Money is what matters. There is almost no sense of responsibility for each other. This is not the profile of a healthy society.
Times are also different, of course—global forces and information technology have eroded community cohesion. But the main change is that people with responsibility no longer feel free to exercise personal leadership. Instead they slog through law all day. It was inevitable, over time, that this powerlessness would lead them to redirect their energies toward self-protection rather than accomplishment and reputation.
The opportunity to make a difference is as important now as it ever was. How teachers, doctors, religious leaders, and supervisors do their jobs affects everyone around them. The broader forces of our time also cry out for decisions. All these opportunities to make a difference lie before us, in plain sight, but made unreachable by an invisible wall of law. These choices used to be made by people we call leaders, a group that properly includes teachers and others who have responsibility on the ground, as well as judges, officials, and political figures. But they no longer feel free to grab hold of a problem and fix it.
Modern law strives to guarantee that decisions by leaders are correct. This hasn’t worked, as we’ve seen. The flaw in the premise is that there is no correctness, at least not that can be proved. Choices are too complex. Judgment by leaders is even less susceptible to objective proof than other choices.
Truth lies not at the center of any matter, historian Henry Thomas Buckle suggested, but at the edges, where it intersects with all other matters. Too much safety means kids don’t stay healthy. A preoccupation with one person’s rights means other people get hurt. No decision can be judged from one point of view. All life is interconnected, in ways that we can only partially comprehend. Choices by leaders involve uncertainties, trade-offs, risks, and balancing. The higher up the chain of responsibility, the greater the range of complexities and trade-offs. A tax dollar used for one purpose is not available to a thousand other worthy causes.
While most choices are too complex to dissect into objective parts, humans are nonetheless adept at making decisions. Life isn’t this hard. Until our modern experiment with law everywhere, people just decided. Yes or no, then move on. When disputes occurred, someone up a hierarchy decided, saying something like “Sure, that seems sensible” or, “Oh, I wouldn’t do it that way.” That was it, or some expanded version of that. There was no legal argument, and no hearings, at least for choices outside the courtroom. The chain of accountability stretched upward until, in a democracy, it circled back to the vote of the people. A social structure of decisions up a hierarchy is not perfect, of course, but it’s highly efficient.
Having a decision-maker is indispensable. That’s how every enterprise works. A crowded society cannot operate without these choices by people in positions of leadership. “Wherever and whenever one person is found adequate to the discharge of a duty,” George Washington noted, “it is worse executed by two persons, and scarcely done at all if three or more are employed.” Just give people the responsibility, and see how they do.
Unavoidable nervousness surrounds all authority, but the risks of unfair results are far less than the risks of legal paralysis. Leadership is not arbitrary power. Leadership in most enterprises is a conditional responsibility, always subject to the judgment of someone else up the line. The nature of responsibility is that it puts people on the spot. That spotlight shines brighter the higher we go up the ladder. The more choices someone is able to make, the more checked he will be by public scrutiny. “There is no danger in power, if only it be not irresponsible,” Woodrow Wilson said, but “if it be divided . . . it is obscured; and if it be obscured it is made irresponsible.”
Leadership used to be the highest aspiration in American culture. We revere leaders in American history not because of their logic and capacity to argue, but because of their wisdom and character. Leaders are called upon to think for themselves, weighing the context and drawing on their inner forces of skill and values. “We may also say of Lincoln,” Woodrow Wilson observed, “that he saw things always with his own eyes.” An effective leader does not hew to the path of legal conformity, but will almost always make choices that are unexpected. “Effective leadership has to be based on intuitions that are correct,” management expert Chester Barnard concluded, “notwithstanding doctrines that deny their correctness.”
Probably the most important leadership trait is character—a concept that embodies faithfulness to doing what’s right. Leaders of good character engender social trust, and thereby enable us to interact freely without fear. The litmus test of leadership is trust by others. “The only definition of a leader,” Peter Drucker said, “is someone who has followers.” Leaders earn this stature not by an unblemished record of success but by our evaluation of the whole person. Emerson, more than any other, focused on the trustworthiness of personal character. “The force of character,” he observed, “is cumulative.” Argument is just noise—a man who is respected “speak[s] from his character, and not from his tongue.” George Washington is the archetype leader: “The heavy, leaden eyes turn on you, as the eyes of an ox in the pasture,” Emerson wrote, “and the mouth has gravity and depth of quiet, as if this man had absorbed all the serenity of America, and left none for his restless . . . countrymen.”
Legal accountability, by contrast, is a concept of argument. Anyone can complain, and often throw a monkey wrench into a perfectly good plan just by threatening a legal proceeding. Instead of aspiring to the common good, law drives decisions toward the lowest common denominator. It’s closer to anarchy than hierarchy. Pretty soon people go through the day looking over their shoulders. Law leads to powerlessness. Character is irrelevant in a legalistic culture. We all know the drill: Focus on the rules; fill out the forms; answer to anyone who disagrees; prove it to me; prove it to them; that’s just your point of view. We flail away in this legalistic morass, with no way to make sense of public choices and getting more tangled up every year.
We have to make a choice: It’s either leaders or lawyers.
Stick with the lawyers, some say. America has exactly the system it wants. Philosophers such as Erich Fromm have argued that the legal cage we’ve built for ourselves just reflects our own “fear of freedom.” Leszek Kolakowski suggests that we “expect from the state ever more solutions not only to social questions but also to private problems . . . that if we are not perfectly happy it’s the state’s fault.” I don’t ultimately agree with them, at least not for most people. These are symptoms of social failure, not causes. There are plenty of Americans who, if given the chance, will reach out to take responsibility. Americans hate this overlawyered system, surveys repeatedly show. The main reason it stays in place, in my view, is that we’re still reeling from guilt, mainly over racism, and can’t bear the thought of another unfair official. “The modern mind, tortured by moral self-doubt,” Michael Polanyi observed, reaches for systemic solutions to “satisfy its passion for ruthless objectivity.”
Leadership scares us. It’s personal, and hinges on the character and wisdom of the particular person. Undoubtedly some percentage of judges, officials, and teachers will be incompetent or unfair. Accountability doesn’t seem good enough—isn’t there some system in which correctness can be guaranteed? Maybe we could go online and order up leaders of unimpeachable integrity. A reincarnation of George Washington would be perfect. Even better that he’s not alive, so as not to inspire jealousies of wanting to switch places. A solemn voice, disembodied, gives us the answers. This miracle of a consensus leader is unlikely, however. So we sit on the fence, hating lawyers and scared of leaders.
Our hand-wringing about the fallibility of leaders misses the critical distinction between the two systems. The point is not that leaders will always be fairer than a legal proceeding. Fairness, as I’ve discussed, is always in the eye of the beholder. The important distinction is that leadership shifts the goal—from the individual to the common good. That’s the job of a leader—to make choices for the common enterprise. Restoring a hierarchy of leadership dramatically alters the dynamic of public choices, with benefits that cascade through society and to our own freedoms. Here are a few of the virtues:
1. Leadership tends to promote compromise. Reasonableness matters, because the decision maker is trying to accommodate different points of view. Leaders have a gravitational pull toward the center—with effective leaders, all draw close to argue their point of view. Arguments over legal entitlements, by contrast, promote polarization. Lawyers tend to argue in extremes.
2. Leadership elevates the importance of ethical conduct and social sharing. People are judged in the round, not in legalistic snippets. As reputation becomes important again, social values turn outward, away from selfishness toward conduct that advances the common good.
3. Leaders can make the case for responsible decisions for a better tomorrow. Legalistic systems, by contrast, are dominated by short-term selfish demands. Fiscal responsibility requires leadership, not self-interested legal arguments.
4. Leaders empower the rest of us—our ideas matter only if someone with responsibility has the power to act on them. That’s why strong principals are critical to teacher empowerment. We can make a difference only if there’s a person with authority to implement our ideas.
5. Leadership is the hub of accountability. When something doesn’t work out, leaders are accountable. Today there’s no one to blame. The system’s at fault. Look at the culture of government. Without leaders to make choices or to hold accountable, government is dead in the water.
Americans haven’t seen much leadership recently, particularly from the political sector. That’s one of the reasons we fear it. Americans have no muscle memory of the dynamics of compromise and character, at least not in public choices.
Reviving a culture of leadership requires not only legal authority, but an active delegation of responsibility as far down the chain as is practical. It’s not surprising that Americans are reluctant to embrace leaders when law has removed their own authority to lead. Former Senator Bill Bradley has talked about how “looking to only two sources of solutions—government or market—is like sitting on a two-legged stool. The third leg of the stool—civil society—is missing.” Civil society is missing because it was suffocated by centralized bureaucracy. Just as we must clean out Washington, we must also restore the conditions for people to make a difference.
Radical decentralization is needed to inspire interest and trust in public choices. A “centralized administration is fit only to enervate,” Tocqueville noted. That’s why he believed local government is the cornerstone of our democracy: “Municipal institutions constitute the strength of free nations. Town meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it . . . without municipal institutions it cannot have the spirit of liberty.”
Centralization, whether by overbearing law or by tyranny, suffocates the human spirit and, with it, the public spirit as well. This is why Rome grew weak and fell, as historian Hugh Trevor-Roper describes in his introduction to The Decline and Fall of the Roman Empire: “The centralization, the immobility, the monopoly of the Roman Empire had gradually destroyed that pluralism, stifled those ideas, and progress had been retarded, public virtues had declined, and in the end an inert, top-heavy political structure had fallen to external blows which a healthier organism would have survived.”
Only by taking responsibility themselves will Americans become strong citizens, comfortable again with the trade-offs and other benefits of leadership at higher levels of responsibility. Schools are an obvious place to begin using these muscles. Social services can also be decentralized—drawing on the goodwill and energy in local charities and faith-based organizations. A mandatory national service can educate the leaders of tomorrow in the nuances of social choices and the discipline of making judgments for the future. Havel states the need plainly:
A modern democratic state cannot consist merely of civil service, political parties and private enterprises. It must offer citizens a colorful array of ways to become involved, both privately and publicly. . . . In a richly layered civil society, a vital . . . role is played not only by the organs of administration, but also by . . . a broad array of civic associations, groups and clubs. All of this together is what creates the life-giving environment for politics.
Reviving the freedom to make a difference requires a new legal structure that leaves room for local initiative and authority. Delegation downward, known as “subsidiarity” in Catholic doctrine, is a core tenet of practical management: “Control what you must, not what you can.” The positive effects will not be hard to discern. Wherever local leadership is allowed, the community will be transformed. The goals will change—from selfishness to a sense of common ownership. Local responsibility will unleash individual resourcefulness. The culture will blossom, as it does at TEAM Academy. What Americans will come to see, when law is pulled away from daily choices and replaced by people with responsibility, is that public choices will become moderate rather than extreme, with most people striving for balance rather than victory.
Bringing public choices into the realm of real people was, of course, one of the founding ideas of our Republic. It was the source of the social strength that Tocqueville referred to as “self-interest, rightly understood.” Decentralizing local services has a cost, of course: Things won’t be standardized. Havel sees this as a virtue: “Life is . . . nonstandard.” People can still be accountable up the chain of authority for their conduct and results. They’re just not told how to do things. They reach inside themselves to make sense of daily challenges.
I can already hear the chorus of the status quo. Who’s to say what good values are? Look at our history of racism and other bad values. That’s why, they say, we have no choice but to build law into daily transactions. But the cure to bad values, as noted earlier, is to demand good values. Running authority through a legal gauntlet just discourages people in authority from asserting any values. We end up getting the values of whoever pounds the table for himself.
But Americans don’t share values anymore, the chorus retorts. Indeed, humans will inevitably apply their own values to each situation. But the inevitability of disagreement is precisely why we need leaders to make choices. It’s also unclear how much Americans disagree on basic issues—say, the need to maintain classroom order or to keep lawsuits within reasonable bounds. Sociologist Alan Wolfe and others have found broad agreement on important social values.
If people share these values, the chorus shouts back, why don’t they act on them? Here we get to the source of all this mischief. Those virtues have eroded not because Americans changed their minds, but because American law stopped protecting good values. When leadership was put on ice, self-interested people learned they could argue almost anything. Some started pushing the envelope. This set in motion a downward spiral of selfishness and fear. Values frayed because no one took the authority to defend them.
Without room for leadership it is almost impossible for a culture to maintain a moral compass. America was not built by our constitutional structure. It was built by real people who asserted their values within a legal structure designed to promote those free choices. The morality of our culture resides in individuals—not in law or any other institutional systems. Institutions are fundamentally less capable of moral acts, as Niebuhr observed, because individuals don’t feel personally responsible: “[T]here is less reason to guide and to check impulse, less capacity for self-transcendence, less ability to comprehend the needs of others.” Like all institutions, law takes a life of its own, developing a kind of “rule narcissism” in which people don’t even think about right and wrong. Only when we restore responsibility to individuals—real people charged with deciding right and wrong—can America reclaim a coherent public morality.
Since the beginning of the Industrial Revolution, America has addressed the conflicts in an interdependent society by enacting ever more law. Now we’re bogged down in all this law, without personal freedom or the ability to accomplish our public goals. We must return to first principles and confront the challenges of modernism by using the powers of freedom, not by removing them. The vision of a society in which people can make a difference is not hard to conceive—where teachers take back control of classrooms, judges draw boundaries, and the rest of us are invested in these and other public choices.
Restoring the conditions for leadership will itself require extraordinary leadership. No invitation will arrive from Washington asking us to fix this mess. “Once ‘active virtue’ is lost in a society,” historian Hugh Trevor-Roper observed when discussing the decline of Rome, “it is hard to recover, perhaps impossible without radical social change; and the survival of nations may sometimes depend on the life of one man.” We must grab hold of this problem ourselves.
There’s no need, as mentioned earlier, to have official power—officials are immobilized anyway. The task is to galvanize the will of the people behind a shift in authority structures toward personal responsibility and accountability. Trust in leadership is the hard part, and this quiet revolution must be championed by people who do not themselves aspire to official position. Their credibility will shine brighter because they aspire to a better society, not to higher office.
In his departing speech as general, George Washington described the new nation, which, he believed, would enable people to be “actors in a most conspicuous theatre . . . designed . . . for the display of human greatness and felicity.” Freedom is supposed to be about originality and spontaneity, not a stultifying system of rules and justification. In the American brand of freedom, people can invent themselves, and follow their instincts and passions, make guesses and be lucky, and get past bad luck with determination. Human energy explodes all over the place. People agree and disagree, and then move on. It’s the best system ever invented. American history proves it. All this energy and imagination can be applied to remake our social structure.
There’s no rule that says we can’t change the rules. America is ours for the taking. People without immediate self-interest must come together, as our founders did, and assert our authority as citizens to bring common sense back to America. Lawyers quibble. Leaders make things happen.
LOOKING AT AMERICA FROM A DISTANCE
Anthropologist Jared Diamond in Collapse shows how bad habits can, over time, destroy a culture. Many societies that fail take some important resource for granted and deplete it without understanding the long-term consequences—for example, cutting down all the trees on Easter Island or the early Nordic settlers in Greenland allowing sheep to graze on grass that wouldn’t grow back.
America’s greatest natural resource is a culture that unleashed the power of individuals. Other countries, including nations with advanced educational systems and vast natural resources, do not share this sense of individual initiative. But that spirit of the free individual erodes if we don’t let people exercise it. Listen to the people who teach in our schools. Look at the decline of civic involvement. Watch the health care system, like a flower in its last full bloom, as it provides miracle cures while millions are uninsured and thousands die of infections contracted in hospitals.
When civilizations start to fail, Diamond found, they often refuse to adapt. In Greenland the population starved to death rather than adapt to dietary habits of the native Inuit, eating fish and seals. Cultural values, Diamond discovered, are often stronger than good sense. The new American ideology of controlling decisions by other people, forged in the cultural cauldron of the 1960s, has become a similarly powerful habit.
Distrust has overpowered our good sense. We know in our hearts that teachers need the authority to run a classroom, and that judges should be able to dismiss frivolous and extreme lawsuits. But the possibility of an unfair teacher, or an unfair judge, seems too much for us to contemplate. We want every human encounter to be perfect. This is crazy, of course. “The pursuit of ever more perfect accountability,” philosopher Onora O’Neill observes, “builds a culture of suspicion. . . . Plants don’t flourish when we pull them up too often to check how their roots are growing.”
But distrust is hard to fight. All someone needs to do is paint some nightmare scenario, and people flee back into the maw of law. Distrust also has an addictive quality. There’s no small amount of pleasure in disdain and contempt. Philosopher William Hazlitt once wrote an essay entitled “On the Pleasure of Hating,” in which he said that “hating, like a poisonous mineral, eats into the heart.” Wallowing in distrust is one of the sick pleasures of Washington—political junkies get together to outdo each other. Visit the Web sites of the religious right: “Liberals are evil, anti-American [and] unpatriotic, . . . trying their best to extinguish our nation.” Or the liberal left: “The Republican party is a criminal conspiracy to betray the interests of the American people in favor of . . . corporate interests and absolutist religious groups.”
Like most addictions, this compulsion for distrust is self-destructive. In The Moral Basis of a Backward Society, political scientist Edward Banfield describes how cultural norms of distrust caused a small town in southern Italy in the 1950s to be mired in poverty and ignorance. “The inability of villagers to act together for their common good,” Banfield found, was grounded in an assumption that people would act only for their “immediate, material interest.” Neighbors were unable to pool small plots of land for more efficient farming because of an assumption that the other people wouldn’t pull their weight. Having given up on getting ahead, people focused on making sure others didn’t get ahead either. One farmer who planted six fruit trees woke up to find them cut down. Fathers taught their sons never to tell the truth of what they owned—because that would be an invitation to theft or vandalism. Villagers dealt with others only with “the greatest suspicion.” The mayor of a village turned down a gift of money from Americans to help needy children because, he said sadly, the citizens would “soon ask . . . how much I had kept for myself.” In this culture of distrust, there were “no leaders and no followers.”
Banfield’s village descended much further into the pit of distrust than America has. But the trend is the same. In America as well, people are pursuing a goal of “immediate material interest” instead of cooperation in social dealings. Our obsessive distrust of judges and anyone else with authority is not that different from the villagers’ distrust of the mayor, causing him to turn down a gift to the town. The partisan efforts to polarize American society—say, debates over gay marriage or flag burning—are not far removed from the destructive acts of a jealous neighbor in Banfield’s village.
Trust is an essential element of a free society, as Nobel laureate Kenneth Arrow explained, because it allows people to focus on moving forward toward their goals rather than looking over their shoulders. This trust is not blind faith in any particular person—we all carry a little caution when dealing with others—but trust in the values of society and its governing institutions. I don’t suspect a mass movement will form under the banner “Let’s Trust Government” or “Power to the Judges.” What’s called for is not to give officials carte blanche, but to exercise our collective will to delegate responsibility to make common choices. The freedom of leaders to make these choices comes with exposure to judgments by others up the chain of responsibility, and eventually back to the ballot box. Everyone is accountable. You can help see to it. You’re free too. Free choice, not legal bickering, is how a free society thrives.
History tells us that social change occurs only in times of crisis. Among other reasons, that’s when people, out of desperation, are willing to become followers. Failure alone is not sufficient. “The more miserable a man is, the more he dreads every sort of change,” Kropotkin observed, “lest it may make him more wretched still.” Machiavelli believed that the intensity of special interests usually trumps the general will of the public—mainly because the public is cynical about the capacity to reform anything. Only extraordinary leaders can lead a society out of this spiral of distrust, Machiavelli believed—people who somehow inspire the public confidence by their character and vision.
There’s a countertrend working in our favor—a cycle of social change in America, as I note in the introduction, that seems to occur every thirty years or so. The last was in the 1960s, so we’re past due. The mood is for change; Americans are fed up with overbearing laws and legal threats. The needed changes do not, by and large, require a shift in moral values—the challenge is to rebuild authority structures to implement our values. The growing burden of health care costs and failing schools may finally precipitate reform. Or maybe it will be the idiocies of child-raising: not letting children wander out to play, and handcuffing them when they misbehave in school. I don’t know what will provide the spark. But I think I know what’s missing.
To confront the challenges of our time, Americans must be free to take responsibility. This in turn requires a legal revolution, clearing out decades of accumulated law and bureaucracy—and building instead a legal framework that defines and protects an open field of human freedom. This project, of historic dimension, is worth the effort. It is how we take control of our future. It is how we become confident again. Liberating America’s can-do spirit will work miracles.