Does Society Have Too Many Rules?

I live in a three-generation household. My wife and I, our son and daughter, and my in-laws share a single house in the Long Island suburbs. Our place is big, but crowded: all of us have hobbies, and so every shelf or surface contains toys, books, art supplies, sporting goods, craft projects, cameras, musical instruments, or kitchen gadgets. Before the table can be set for dinner, it must be cleared of a board game or marble run. My desk, where I aim to write in the mornings, has been repurposed as a drone-repair workshop.

The property includes two broken-down sheds and a garage. It would make sense for us to convert them into more useful structures—say, home offices or play spaces. But rules constrain us. My mother-in-law has briefed me on the situation many times, but the specifics still make my head swim. A half-century-long saga involves retrozoning and upzoning, setbacks from property lines, and previously approved applications that have expired and now need to be resubmitted along with new, forbidding fees. The bottom line is that, while we own the structures, we can’t do what we want with them unless we interact with a bureaucracy first.

I understand why the rules exist. Who wants one’s neighbors to build willy-nilly? Still, the constraints rankle. Perhaps even more unsettling is the larger sense that there are other, unrelated sets of rules hemming us in on all sides, regulating seemingly every aspect of life with varying degrees of reasonableness. At the bowling alley where I go with my son, a “we card everyone” rule requires the bartender to performatively inspect my I.D., even though I have gray hair and am clearly middle-aged. At the pharmacy, a new (and stupid) rule prevents my wife and me from receiving the COVID boosters we got last year, and want to get again. In his book “Fewer Rules, Better People,” Barry Lam—a philosopher at the University of California, Riverside, and a friend of mine—describes attending an academic meeting that begins at 9:30 A.M. Rules at the host institution require that all catering go through a specific company, which doesn’t start work until ten; accordingly, the meeting’s organizer asked to order from a nearby Starbucks, which opens at seven-thirty. Lam observes that the catering company itself subcontracts to Starbucks: its invoices almost always indicate “the purchase of Starbucks coffee, most likely from the very same branch.” Yet an administrator vetoes the plan, and the meeting’s start is uncaffeinated.

In recent years, an across-the-aisle consensus has emerged that American life is too rule-bound. “It isn’t just the government, it is your wireless carrier, your utility company, your bank, and your school,” Lam writes. Throughout society, the general trend is toward “rules and their enforcement, rather than informal exchanges between people built on trust, friendships, acquaintanceships, and verbal agreements.” Lam, who is broadly progressive in his politics, devotes much of his book to the criminal-justice system, in which sentencing guidelines, must-arrest mandates, and other tough-on-crime rules force judges and cops to act more harshly than they might otherwise choose to. But Philip K. Howard, a conservative analyst, advances parallel arguments in “Saving Can-Do: How to Revive the Spirit of America.” He describes workplaces that seem governed less by bosses than by H.R. handbooks and union contracts, and vital infrastructure projects that take decades longer than they should because of frivolous legal and environmental requirements. “Americans roll up their sleeves and get things done,” Howard writes. Yet “new rules are continually written to cover new situations,” resulting in “a massive legal and bureaucratic edifice” based on “a flawed philosophy of governing—that law should preempt human judgment in daily choices.”

Lam and Howard are persuasive. So are the many other thinkers and analysts—including the journalists Ezra Klein and Derek Thompson, and the government reformer Jennifer Pahlka—who make similar arguments. But their ideas are gaining traction at an awkward time. If many people today feel unusually rule-bound, others, often the powerful, seem to be almost lawless. On the one hand, a doctor can find her treatment of patients micromanaged by bureaucrats at an insurance company, and a school principal can see his personnel decisions thwarted by union-led investigative processes into which he is allowed no input or insight. Meanwhile, the President can use the National Guard to intimidate blue-state citizens, and no one can stop him; a mogul can shield billions in income from tax; and voters can find their districts redrawn overnight.

The rules seem broken: we’ve installed too many in the wrong places, and too few in the right ones. Maybe we’ve forgotten what rules are for, and how they work, and when to use them, and whom to use them on. We may have also forgotten about alternatives to rules. The result is a society that feels both rule-bound and misruled, saturated with laws and yet strangely lawless.

It might be useful to rewind the tape and ask: Why have rules at all? Zombie-apocalypse shows suggest that, without laws, we’d live in violent anarchy. So a more pointed query might be: Why have large numbers of highly detailed laws, covering so many aspects of life? To answer this question, Lam looks to the ancient Chinese philosopher Han Fei, an important proponent of the school of thought known as Legalism. Han Fei wrote in the third century B.C.E., toward the end of the Warring States Period, a time in Chinese history when many large fiefdoms were combining to form a single nation. Governance was a central challenge. How could such a new, big country hold together, and be managed effectively?

To Han Fei, this was essentially a personnel problem. Governance would be easy if one could guarantee the perpetual excellence of the civil service; in that case, creating a good government would be as simple as trusting bureaucrats to govern. But Han Fei was skeptical of such guarantees. “Unlike Hobbes and the even more pessimistic Machiavelli, Han Fei did not identify humans as by nature brutish, stupid, irrational, or gullible,” Lam writes; instead, he saw us as “mediocre.” Statistically speaking, any given group of people will converge toward mediocrity. Even if you succeed in hiring excellent bureaucrats this year, the odds are good that you will hire less excellent, or even terrible, ones down the road. “Han Fei’s central idea is that in a society of scale, you cannot tie all the good things you want out of good governance—well-fed people, economic development, conflict-free trade, a shared currency, resolution of conflict without violence—to something as tenuous and changeable as the quality of the people in your government,” Lam explains.