“Responsibility, to be effective, must be individual responsibility. . . . As everybody’s property in effect is nobody’s property, so everybody’s responsibility is nobody’s responsibility.”
—Friedrich Hayek
Nothing will get done sensibly, as discussed, unless a person or small group of people can take responsibility to make it happen. This is not a point of view, or an ideology, but a truth. Human responsibility is the oxygen of accomplishment. This is as valid in government as in any other activity. Projects succeed because people focus on the goal, and get there by taking risks, adapting, innovating, making do, and learning from failure.
Responsibility is a powerful motivator: it embodies both reward and risk, and it provides meaning and self-respect by allowing people to do things in their own way. Any organization needs “a principle of management,” Peter Drucker concluded, “that will give full scope to individual strength and responsibility.” Management theories and structures succeed only as tools of responsibility, not replacements.
Making people take responsibility for actual results does not seem radical. That’s how life works everywhere else. But achieving this vision requires a complete overhaul of Washington and, eventually, most state governments as well. That’s because responsibility requires a measure of authority. The extent of authority will be constrained by law, and safeguarded by oversight up a hierarchy, but authority means that the official can make “particular decisions without having to ask someone else’s permission.”
Instead of a legal labyrinth, the spotlight would shine on an identifiable official. Things go wrong; some public employee stands up and tries to fix it; if that doesn’t work out, that official or another one explains why and tries something else. Citizens must see action, effect, and further action. There’s someone to blame, or praise. There are concrete choices that a political candidate can vow to change, or support. Only then will we feel our views and votes matter.
Responsibility in a democracy puts the focus of public policy where it should be—evaluating the performance of the official, not the demands of private claimants. The civil servant’s job is to serve the common good. Today, the inversion of authority puts the focus on whoever is complaining. Tomorrow, the responsible official must instead frame the decision as what is fair and sensible for society.
Washington today is a black box. That’s another reason so many Americans are apathetic. Why bother? The absence of a lever to influence government not only contributes to apathy, but also to its evil twin, extremism. When yelling at a black box, rhetoric has nowhere to go but up. Rebuilding a hierarchy of responsible officials will get democracy working again. Giving officials the authority to take responsibility, however, requires overcoming a number of hurdles. The first is that many, perhaps most, officials in Washington will do almost anything to avoid it.
In 2015, following publication of the Common Good report “Two Years, Not Ten Years,” I was summoned to the White House to discuss with senior officials their efforts to streamline infrastructure approvals. They told me that a recent law (misnamed the FAST Act) would resolve most of the delays. The FAST Act created a new sixteen-agency council to resolve interagency disputes, and provided twenty pages of new procedures (on top of all the existing procedures) for how this new interagency council would work. The FAST Act included this model of circularity as its ultimate provision to resolve disputes: “If a dispute remains unresolved . . . the Director of the Office of Management and Budget . . . shall . . . direct the agencies party to the dispute to resolve the dispute.”
I had a few questions. “How long will it take to schedule a meeting with sixteen busy officials?” They didn’t know. “How much authority will each attendee have to compromise his agency’s position?” Again, no idea. “Just in case the attendees don’t agree,” I finally asked, “who has authority to make a decision?” The senior official quickly responded: “Oh, no one has that authority. That would be too dangerous.”
Correctness has cowed America’s entire public culture. Any reform discussion quickly gets bogged down in process talk on how to get to a decision without any identifiable official having to decide. The one taboo is giving anyone that authority.
What accounts for this obsessive avoidance of human responsibility? One explanation is fear. “Liberty means responsibility,” George Bernard Shaw observed: “That is why most men dread it.” Responsibility is especially frightening when people are surrounded by failure, and feel buffeted by forces beyond their control. People will prefer the security of an authoritarian system to freedom, as psychoanalyst Eric Fromm explained in Escape from Freedom.
An irony of bureaucratic culture is that the less accountable officials are, the more they fear taking responsibility. Charlie Peters, the founder of The Washington Monthly, described this “near-total preoccupation with self-protection. . . . It is ironic that a system intended to protect the courageous and outspoken has attracted people who . . . are looking for protection against anything that could disturb their quiet but steady progress up the career ladder.”
Most officials probably don’t think they’re avoiding responsibility. To them, responsibility means complying with all the rules and procedures. They go to meetings, talk in bureaucratic tongues, and sometimes, after years, something happens. This is the professional culture of Washington—so deep in the bureaucratic rut that there’s no line of sight to public purpose. Actual decisions seem almost like accidents.
Cultures are hard to change. Max Weber said that bureaucracies, once entrenched, are permanent: “the resulting system . . . is practically indestructible.” Within the machinery of Washington, people can’t imagine doing things differently.
Avoidance of responsibility extends to elected leaders as well. When Senator Dale Bumpers retired, he observed that members of Congress “want to be elected, but we don’t want to govern.” Democratic congressman Jim Cooper says that his colleagues talk about reform, but don’t want to be “responsible for proposals they have defended on television, bragged on in speeches, and received major contributions for pushing.”
Avoiding responsibility is also a disease of special interests. Business lobbyists insist on what they call “clear law” to supplant any decision-making authority. Whatever government does, they insist, must be implemented according to specific rules laid out in advance. That’s why the Volcker Rule, designed to avoid proprietary trading by banks, ballooned to 950 pages. Paul Volcker himself thought it could have been done in a few pages.
Washington is a city of agents acting on behalf of clients and the public, not striving for self-directed goals. Agents tend to worry first about avoiding blame, not getting to a result. We imagine that special interests are using their influence to get favors, but mainly the lawyers and lobbyists that represent them cling to the status quo. Reform is too risky.
During Al Gore’s reinventing government initiative, I had made headway with congressional leaders with a regulatory simplification proposal, where business and regulators would both have more flexibility to work out the best regulatory solutions. Then the proposal was killed by big business lobbyists, who insisted on detailed rules set out in advance. A month later I was seated next to the CEO of a large chemical company at a lunch hosted by Vice-President Gore, and I asked him what he would think of a flexible regulatory program. “I would take that in a second,” he said. “Often the regulations don’t serve anyone’s interests. I’d welcome the ability to sit down with the regulator and work out what makes sense.”
Citizens too have enjoyed a kind of vacation from democratic responsibility. When the rules of correctness tell everyone exactly what to do, citizens don’t need to worry about whether officials are doing a good job. Even now, when the rules are driving Americans nuts, our instinct is that Washington should produce better rules. Our fifty-year vacation from active democracy has to come to an end. When officials have authority to make decisions, that will put pressure on us to be vigilant. No more reclining in the Barcalounger and griping at the television.
Democracy can’t work as an automatic system of uniform controls. Philosopher John Plamenatz explained that the great thinkers about democracy, including Alexander Humboldt, John Stuart Mill, and Tocqueville, “feared paternal government no less than oppression by the state. If the state looks after the citizen too well . . . it weakens his self-reliance and independence of judgment, his ability to define his own problems and to set about solving them. Freedom is the school of freedom.” Only with freedom can people learn to take responsibility, including overseeing decisions by others.
America’s programmed public culture must be disrupted. This requires new officials, in new locations and a culture of accountability, as I will shortly discuss. Fear of taking responsibility can only be overcome by greater fear of something else. Fear of what? Fear of your boss and co-workers. Fear of failure. Fear of public opinion. Fear of authority, as Hobbes reminded us, is an essential element of a working society. Officials must not have the option of avoiding responsibility. Citizens too must fear what happens if they don’t pay more attention.
An entirely new, and radically simpler, legal code is required to create an open framework that requires fresh decisions at every level of responsibility. That new legal framework will put the spotlight on particular officials, not sweep back and forth across the surface of the giant black box.
The superstructure of modern bureaucracy that must be disassembled includes not only cultural and organizational assumptions, but also the legal orthodoxy that exalts clear rules over human responsibility. Here is an overview of why the myths of current legal philosophy should be repudiated without regret.
Every law school for fifty years has taught its students that public law is about guaranteeing correctness through detailed rules, individual rights, and due process. Minimizing human authority, legal mandarins have told us, results in a purer form of the Rule of Law. The legitimacy of this correctness philosophy has been unquestioned, with only occasional sparks of dissent, for half a century now. It must be discarded.
Correctness is not a valid goal for law, but its antithesis. Constant legal justification undermines law’s main purpose: protecting our freedom. Think about it: What kind of legal system doesn’t let teachers, doctors, officials, and others act sensibly?
Let’s go back to first principles. No respected formulation of freedom prevents people from acting responsibly. “The end of law is not to . . . restrain, but to preserve and enlarge freedom,” to quote John Locke. Law protects our freedom in two ways. It shields us from state coercion—government can’t take our property or liberty except by law. And law also protects us from abuses by other people—they can’t cheat, pollute, breach contracts, and so forth. By covering our backs, law liberates us to marshal our energies towards achieving our own goals.
Correctness, on the other hand, focuses only on eliminating abuses. It does so by removing our freedom. “In their zeal to create social and economic conditions” for better freedom, Isaiah Berlin noted, reformers “tend to forget freedom itself.” Instead of striding towards our goals, we tiptoe through the day, constantly looking over our shoulders to guard against claims of legal incorrectness. Have you followed all the rules? Are you sure? Might that comment be taken the wrong way?
The error is not just a matter of degree—not just, for example, an inevitable cost of the growth in the scope of government oversight. The error is conceptual: correctness basically inverts law and freedom, in each of the following ways:
Law is not supposed to define what’s reasonable—there are many ways to be reasonable—but to define and protect against what’s unreasonable. Law is a concept of outer boundaries, as noted earlier, like a fence around a broad field. The fence defines the boundaries of freedom by drawing the line on unreasonable behavior. Within those legal boundaries is a broad field of freedom in which people are free to do whatever they want, however they want to do it. Law sets “frontiers, not artificially drawn,” as Isaiah Berlin put it, “within which men should be inviolable.” Law stands on the edges of the field, like a policeman standing guard against conduct that crosses the line. Law’s inquiry is intrinsically negative: Was the person driving carelessly? Was the decision an abuse of discretion?
Correctness, by contrast, imposes affirmative plans on how to do things properly: Correctness is a nanny striving for human perfection throughout society. Instead of guarding outer boundaries, correctness intercedes in every daily interaction where something might go wrong. Correctness thus represents a huge expansion of state power—like, say, telling us how to cook instead of protecting against adulterated ingredients.
There is no such thing as “clear law” that can define correct behavior. Correctness is propped up by muddled thinking over the way law works. Even brilliant thinkers on human freedom fall into the trap of thinking that public choices fall into only two categories: either (1) clear law that is implemented objectively, like a speed limit, or (2) anything goes, with no constraints on official discretion.
Because “clear law” produces thick rulebooks that are unintelligible to real humans, one would have thought that sensible people would question this myth of clarity. Moreover, deciding what is bad behavior always requires a measure of human judgment. “Justice . . . is a concept by far more subtle and indefinite,” Justice Benjamin Cardozo observed, “than any that is yielded by mere obedience to a rule.” Enforcing the boundaries of law requires judges and officials to draw on accepted norms of reasonableness.
Let’s take a simple situation. Most sensible people probably agree that it’s unfair, as required under “zero tolerance” rules, to suspend a first grader because he brought to school a toy soldier carrying his toy rifle. On the other hand, a high school student who brings a switchblade should be immediately suspended. School principals can discern these differences. That’s why, as noted earlier with immigration policy, zero tolerance rules are absurd; principals need the authority to make sensible disciplinary decisions. If we’re worried about principals who lack an internal gyroscope to make fair decisions, then we should make it easier to replace bad principals. Instead, in our devotion to “clear law,” we compel every principal in America to act like an idiot.
Most choices at the legal boundary will be more nuanced than distinguishing between a tiny plastic soldier and a real switchblade. The more nuanced the choice, however, the more human judgment is required.
Letting judges and officials interpret law does not give them arbitrary power. The mandarins of correctness think that any freedom to use judgment in law—especially by officials—is an invitation to abuse. What they misunderstand is that, by defining a scope of responsibility, law hems in the range of action and creates a hierarchy by which other people hold the official accountable. Our protection against official abuse is not mindless compliance, but oversight by other officials and judges of the first official’s fidelity to his legal responsibility.
Every respected legal system relies on humans to interpret it in the particular context. The Constitution, for example, protects your free speech in one phrase that prevents Congress from “abridging the freedom of speech.” It’s been interpreted by courts in many different contexts, and most of us couldn’t define exactly its boundaries. But few people lose sleep over the gray areas at the edges because we trust that its basic norms are widely accepted, including by prosecutors and judges. This one short principle is good enough to inspire confidence that even the president lacks the power to muzzle your criticism.
Until the correctness craze of the past fifty years, law was mainly goals and general principles, meant to be applied with common sense and prevailing norms. American contract law, generally regarded as reliable and predictable, rests on principles such as “commercial reasonableness” and “good faith.” Law also needs prescriptive rules—say speed limits or effluent limits—but these work best in settings where rigidity is preferable from a utilitarian standpoint.
Law is a human institution, not an automated program. It avoids abusive enforcement not by mechanical precision but by a hierarchy of oversight and accountability. Separation of powers is a concept that presumes that each of the separated powers is led by humans—real people—whose scope of responsibility is to provide oversight by their independent judgment.
Looking at the boundaries of law under a microscope, what you should see is a cellular construction where each official has defined jurisdiction, with outer boundaries, similar to the framework of freedom itself. Surrounding that official are other officials and judges with independent powers to overturn any rogue decisions.
Law based on general principles has the virtue of affirming norms of right and wrong. Decisions can be practical and fair, instead of brittle and ineffective. Another virtue of a simple, open framework defining a scope of responsibility is that it requires officials to be sensible and fair. Officials are not only free to do what’s right, but are on the hook if they do not.
We respect the current system because it’s impartial and authorized by democracy. Democracy is not the same as freedom, however. As Tocqueville put it, “For myself, when I feel the hand of power lie heavy on my brow, I care but little to know who oppresses me; and I am not the more disposed to pass beneath the yoke because it is held out to me by the arms of a million men.” The angry Americans described in Hillbilly Elegy and showing up in rallies for Trump seem to feel the same heavy hand upon their brow, and are not mollified by the fact that Washington is acting lawfully.
The test of law is how it works. That’s why the current legal philosophy, which undermines our freedom to do what’s right and sensible, must be abandoned.
Writing a new code that restores responsibility is not a vast drafting exercise because there’s no need to struggle over details of implementation. Australia in the 1980s replaced thick rulebooks for nursing homes with thirty-one general principles—for example, to provide a “homelike environment.” Within a short period, nursing homes were markedly better, because, as researchers John and Valerie Braithwaite found, the operators, regulators, and family representatives started focusing on quality instead of compliance.
New codes should aim at giving official and citizens the responsibility to achieve public goals in their own ways. People can try different ideas and adapt when things don’t work out. In Australia, the uncertainties of what would work best meant that stakeholders had an incentive to cooperate and compromise. Issues were worked out in conferences with owners, staff, residents, and relatives.
Common Good, the nonpartisan reform group that I chair, has a legislative proposal to streamline infrastructure red tape that is not quite three pages long—basically allocating responsibility to designated officials to make and oversee needed decisions. Under the proposal, the chair of the Council on Environmental Quality—the White House office created by Congress to oversee environmental review—would have the responsibility to resolve disputes over the scope and adequacy of environmental review. The CEQ chair would still be obligated to meet the goals of the underlying statute, and could not slough off the need for environmental review. No longer would vital infrastructure projects be delayed for years, however, to prepare thick reports with thin benefits—such as reports on historic buildings on a project that impacts no buildings.
Humans taking responsibility, not rules, are the main variable for achieving high quality in hospitals, nursing homes, and day-care centers. Safety too is mainly about training and oversight, not better equipment. Many of the 4,000 detailed rules in the federal worker safety law could be replaced by this principle: “Tools and equipment should be reasonably suited for the use intended, in accord with industry standards.” General principles leave room for argument at the margins, but, as noted, those discussions tend to promote sensible decisions.
Regulatory judgment is vital for safety because of unavoidable trade-offs. Safety is only half an idea; the question is what we’re giving up to be safe. Guidelines discouraging children from running around and exploring on their own are counterproductive. It’s hard to be streetwise unless you’ve been allowed on the street. The seminal essay here is Aaron Wildavsky’s The Secret of Safety Lies in Danger, which explains why caution often increases risk.
The future is unknown; this too is a reason it’s a mistake to plan with much detail. “No plan,” a general once said, “survives contact with the enemy.” No detailed regulation survives contact with the facts. That’s why people must have responsibility to meet public goals. Not all people will succeed in their responsibility, of course. Some officials will be ham-fisted and unreasonable, just as some citizens will be careless or delusive. Judgments about people are critical for managing government institutions. That’s why the second essential choice for a practical society is to restore the ability to hold officials accountable.