Shackling Our Wisdom With Rules

By Mark Esposito, Guest Blogger

wisdomIn Maryland, a seven-year-old boy is suspended from his school under its “zero tolerance” policy because he nibbles a pastry into the shape of a handgun and says “Bang!” “Bang!” (Here).  In California,  a high school principal refuses to let an ambulance come onto a football filed to tend to a seriously injured player citing school board rules. (Here). A nurse at a home for the aged ignores the furtive pleas of a 911 dispatcher and refuses to perform CPR on a woman dying of cardiac arrest because she says its policy not to do it.  (Here). She won’t even get someone else to do it.

These grotesque examples of indifference to any form of reason are becoming all too common as we find ourselves governed more by rules than by the judgment of people.  These stories got me thinking about the need for rules in a complicated society and their limitations. It also got me wondering why wisdom and its country cousin, common sense, have been banished from most every discussion of decision making. Here’s John Maynard Keynes in his famous treatise on decision making, Treatise of Probability, discussing how to make the right decision:

If, therefore, the question of right action is under all circumstances a determinate problem, it must be in virtue of an intuitive judgment directed to the situation as a whole, and not in virtue of an arithmetical deduction derived from a series of separate judgments directed to the individual alternatives each treated in isolation.

Armed with that little tidbit, I searched the entire work and found exactly zero uses of the word “wisdom” in Professor Keynes’ detailed analysis of doing the right thing. How can that be?

Wisdom is a an old-fashioned word. It hearkens back to Solomon and Solon. To Plato and Socrates. Aristotle explained that practical wisdom is one part moral will and one part moral skill. It means a human action premised on experience or intuition that achieves the best possible moral result.  Not efficient. Not effective. Not even the most profitable. But the most moral result.

At its core, it is about the time and thought necessary to achieve deep understanding.  Both are in short supply these days as we measure our progress by how far we’ve gotten or by how much we have obtained and how fast we did it. The process by which we achieved these things is less important that the result. And it is this philosophy that has laid waste to ethics, judgment, and most importantly wisdom. In this race to “Just Win Baby,” we have ossified our capacity for wisdom under a steady stream of rules, regulations, guidelines, and protocols. But why?

Speaking at a TED conference in 2009, Professor Barry Schwartz examined the problem and offered an explanation in the context of a study done of hospital janitors. Schwartz looked at the job descriptions of  the janitors.  The explanations of employment were big on such rudimentary tasks as cleaning, restocking, and sanitation, but not one mention of anything involving human interaction. As professor Schwartz remarked “the job could just as easily have been done in a mortuary as in a hospital.” But that assessment did not match what the janitors considered the most important aspect of their jobs. In responses to questioning from researchers, one janitor, Mike,  explained the most important thing about his job was caring for patients. Like the time he stopped mopping a floor because Mr. Jones was finally up and around from surgery and had just left his bed to get some exercise.  Another custodian,  Charlene, told of ignoring the orders of a supervisor to vacuum the visitors lounge because family members of a patient who dutifully arrived every day to be with their loved one were finally getting a chance to take a nap.  And, Luke, who scrubbed the floor of a comatose patient’s room twice because the emotionally drained father at the bedside didn’t see it the first time and insisted it be done. No argument. No rebuttal. No peevishness of any sort. Just compassion.

These types of interactions aided in patient care and were beneficial to the hospital beyond the mere improvements to sanitation and overall cleanliness. As Professor Schwartz reminds us, “kindness, care and empathy” were essential parts of these janitors jobs, yet not word one about them in their job descriptions nor the rules promulgated by their supervisors to guarantee their performance.  In fact, the rules were silent on this human component even as strict compliance with the rules would have resulted in the opposite effect. Rule breaking –when the circumstances demanded it — was found to be an equally essential component of their performance as was reasonable compliance in the successful execution of their jobs. The janitors thus exhibited the moral will to do the right thing and the moral skill to exercise their discretion when the need arose resulting in the best moral result.  Why then can’t we allow experienced people to exercise judgment when the need arises?

Professor Schwartz says the answer is fear of catastrophic results. Sure, rules can mitigate against disasters such as when one has no idea what to do, but what about when good, experienced people are penned in by the rules? The sad fact is that wisdom suffers. It suffers because compliance with rules insures mediocrity and banishes excellence.  Winston Churchill used to like to spout this adage (attributed to RAF pilot Douglas Bader), “Rules are for the obedience of fools and the guidance of wise men.” And it was Thomas Edison who remonstrated against mindless adherence to convention saying, “Hell, there are no rules here – we’re trying to accomplish something.” Like Churchill, Edison, and those janitors wise people can make exceptions to rules and improvise. And in these against-the-grain actions, they contribute to a better overall result than any blind obedience to the rules could muster.

The disheartening truth is that many leaders simply don’t want the best results. Instead, in an effort to secure their positions, they want mediocre results devoid of controversy. Why strive for excellence and bear the attendant risk, when C plus work will keep your job? We expect wisdom from our leaders and too often we get rules. Vague, incomprehensible guidelines tailored to nothing except the most obvious situations which are many times the least important situations.  By reducing humans to mere instrumentalities of the rules with no discretion to modify them when circumstances so warrant, we achieve the foolish results recounted above. Can every person demonstrate wisdom? Likely the answer is “no,” but wisdom is learned not passed exclusively through the gene pool. As our janitors amply prove, it takes moral education and enough time to garner the necessary experience to let it bloom. Reducing people to automatons for carrying out rules is a sapping away of their humanity and an insult to their dignity as sentient beings. We need to encourage the exercise of judgment and not condemn its every failure.

We need something else, too. We need to allow for error. We need to understand that sometimes discretion is not properly exercised but that the measure of an action is mostly its intention and not always its result.  Too often, the fear of negative consequences stifles any real excellence. Take the nurse at the home for the aged. Her fear of dismissal from her job and any attendant liability permitted her to sit idly by while another person died. Take away that fear and you would almost certainly have had this person, sworn to reduce suffering, giving all she had to save another person. As a lawyer, I know full well the burden on actions that the liability system has on risk taking, but the law is not static and this is precisely the reason for Good Samaritan laws that protect benevolent human action when the intentions are true.

We need to unshackle people and allow the extraordinary things they can accomplish to happen when given the chance. And there may yet be hope. In January, United Airlines passenger Kerry Drake was making a mad dash flight home to Lubbock, Texas to visit his dying mother one last time. Drake knew that if he missed his connecting flight he surely would never see his mother again. His layover in Houston was only 40 minutes and time was of the essence when he boarded his flight in San Francisco. That first leg was delayed well beyond any hope of making the second flight.  United’s captain radioed Houston to ask them to delay the connecting plane. They did and despite the FAA’s and United’s own rules to keep flights on time, 20 minutes after it was scheduled to take off it got airborne with Kerry Drake aboard. Kerry Drake made it to his mother’s hospital bed only hours before she passed  away.

United’s spokesman, Rahsaan Johnson, summed up the situation beautifully, “United tells employees that being on time and safe are the highest priorities, but we also empower [them] to make decisions out of the box to help customers who have a special need like Mr. Drake’s.”

Now that’s wisdom.

Source: Fox News; NPR and throughout.

~Mark Esposito, Guest Blogger

73 thoughts on “Shackling Our Wisdom With Rules

  1. The world or should I say the US has gone mad! Any person who assumes that common seance guides any institution in America is now well and truly warned.

    Bankers can commit massive frauds and go free. Big Pharma uses us all a lab rats. But a boy who nibbles a pastry is punished because a teacher sees a sugar filled weapon. Zeo tolerance for pastry guns but rules requiring real guns in schools OK! No judgement.

    Life and death being determined by generally applicable rules that protect no human. No ambulances on the field and no CPR at the nursing home.

    We are truly a country with no brains, no judgement and no sense of proportion.

  2. There was a guy on the golf course which is next door to the marina. He was up on a low branch of a tree howling because there was a rattle snake under the tree making rattle noises. One of our dogs ran in there and barked the snake away. Then the jerk from the Clubhouse for the golfies came out and ran the dog off and pointed to the No Dogs Allowed! sign.

    We have a pac within the dogpac. Next time leave golfie in the friggin tree and leave well enough alone.

  3. “These grotesque examples of indifference to any form of reason are becoming all too common as we find ourselves governed more by rules than by the judgment of people.”

    Actually, the notion that we should be governed by rules rather than the judgement of people is the cornerstone of civil society, specifically, rule of law.

    Liberty in society is freedom from the arbitrary exercise of authority (authority in a broad sense, including the authority of might-is-right that supposedly predominated in the Hobbesean war of all-against-all). In a strict sense, liberty is having to obey only the law, and not the whims of others.

    The issue, on your analysis, is that the liberty of first responders or teachers is restrained by rules that are based not on general principles, but which are for all intents and purposes arbitrary. Some ordinance gave some body the authority to establish arbitrary restrictions on the behavior of others.

    While I’m not a huge fan of Friedrich Hayek’s economic though, his formulation of Rule of Law in Chapter 6 of 1944’s “Road to Serfdom,” is quite kosher:

    “In our age, with its passion for conscious control of everything, it may appear paradoxical to claim as a virtue that under one system we shall know less about the particular effect of the measures the state takes than would be true under most other systems and that a method of social control should be deemed superior because of our ignorance of its precise results. Yet this consideration is in fact the rationale of the great liberal principle of the Rule of Law. And the apparent paradox dissolves rapidly when we follow the argument a little further.

    “This argument is twofold; the first is economic and can here only briefly be stated. The state should confine itself to establishing rules applying to general types of situations and should allow the individuals freedom in everything which depends on the circumstances of time and place, because only the individuals concerned in each instance can fully know these circumstances and adapt their actions to them. If the individuals are to be able to use their knowledge effectively in making plans, they must
    be able to predict actions of the state which may affect these plans. But if the actions of the state are to be predictable, they must be determined by rules fixed independently of the concrete circumstances which can be neither foreseen nor taken into account beforehand: and the particular effects of such actions will be unpredictable. If, on the other hand, the state were to direct the individual’s actions so as to achieve particular ends, its action would have to be decided on the basis of the full circumstances of the moment and would therefore be unpredictable. Hence the familiar fact that the more the state “plans,” the more difficult planning becomes for the individual.

    “The second, moral or political, argument is even more directly relevant to the point under discussion. If the state is precisely to foresee the incidence of its actions, it means that it can leave those affected no choice. Wherever the state can exactly foresee the effects on particular people of alternative courses of action, it is also the state which chooses between the different ends. If we want to create new opportunities open to all, to offer chances of which people can make what use they like, the precise results cannot be foreseen. General rules, genuine laws as distinguished from specific orders, must therefore be intended to operate in circumstances which cannot be foreseen in detail, and, therefore, their effect on particular ends or particular people cannot be known beforehand. It is in this sense alone that it is at all possible for the legislator to be impartial. To be impartial means to have no answer to certain questions — to the kind of questions which, if we have to decide them, we decide by tossing a coin. In a world where everything was precisely foreseen, the state could hardly do anything and remain impartial. “

  4. The police, FBI and intel agencies are also bound by the Supreme Law of the Land, the U.S. Constitution and Bill of Rights! Can anyone name one agency in the entire United States (local, state, federal) that abides by the Fourth Amendment as written? What about the Fifth Amendment, Sixth Amendment, Seventh Amendment or Eighth Amendment? Just one agency.

  5. Indigo:

    “Actually, the notion that we should be governed by rules rather than the judgement of people is the cornerstone of civil society, specifically, rule of law.”


    Reason is the life of the law; nay, the common law itself is nothing else but reason… The law, which is perfection of reason.
    ~Sir Edward Coke

    Judgment is the foundation of all law and and true judgment is based on reason.No reason; no viable law.

  6. In addition to the “letter” of the law, there is the “spirit” of the law also which is more important than the actual letter since written law has loopholes. There are also “exigent circumstances” where in emergencies like someone yelling “help” where law enforcement can enter without a a judicial warrant.
    The United States is a rule of law nation by design.

  7. @mezpo

    Your Coke quote is about commonlaw.

    It may make more sense in a British context, but where I said that “the notion that we should be governed by rules rather than the judgement of people is the cornerstone of civil society,” that’s difficult to argue with.

    In his Second Treatise, Locke wrote:

    “Sect. 6. But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions”

    There’s your reason — in the “state of nature.”

    Locke continues: “Sect. 13. To this strange doctrine, viz. That in the state of nature every one has the executive power of the law of nature, I doubt not but it will be objected, that it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends: and on the other side, that ill nature, passion and revenge will carry them too far in punishing others; and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men.”

    The Hobbesian state of nature is unpleasant, so humans enter into the social contract.

    Again, Locke:

    ” I easily grant, that civil government is the proper remedy for the inconveniencies of the state of nature, which must certainly be great, where men may be judges in their own case, since it is easy to be imagined, that he who was so unjust as to do his brother an injury”


    “Sect. 95. MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. ”

    This is Locke’s thinking behind one of his earlier premises:

    “Sect. 3. Political power, then, I take to be a right of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good.”

    Hayek’s formulation of this philosophy is quite kosher, as I noted earlier.

  8. Great article Mark. It got me thinking on a damp and dreary morning. While I agree with the premise, I do have concerns that there are too many people out there who do not have the common sense or wisdom to think or act outside of the box. Your nurse example of refusing to even call 911, let alone do CPR on the victim in my mind is an example of someone who should be in a different profession. How in heck can it be against policy at a nursing facility to call 911 for a stricken patient or resident? Something is wrong with that person that rules or a relaxing of rules will not help.

  9. Indigo:

    “where I said that “the notion that we should be governed by rules rather than the judgement of people is the cornerstone of civil society,” that’s difficult to argue with.”
    And I wouldn’t argue with it. I simply saying pasting the word “law” onto irrational rules will not make them otherwise,

    I fully agree with Locke.

    The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom.
    ~Second Treatise of Government, Ch. VI, sec. 57

    It would be hard to argue that adherence to the rules in the examples in the piece promote law’s beneficial ends.

  10. Isn’t the whole point of a “constitutional democratic republic” (representing the interests of the citizens) that the people’s wisdom is supposed to be enacted into laws? Maybe campaign finance reform is what we are really talking about here!

  11. rafflaw:

    “While I agree with the premise, I do have concerns that there are too many people out there who do not have the common sense or wisdom to think or act outside of the box.”


    I think we can teach wisdom. It’s not genetic or based on social station as I tried to show with the case of the janitors. It takes time and experience. If we continually tell people by word and deed that their discretion is never to be trusted they start to believe it. It’s like lamenting that there are no more fine race horses after we’ve closed down all the tracks thus justifying why we closed down all the tracks.

  12. This is a link to a Huff PO article about the nursing home. I felt anger towards the nurse at first. …. However after reading the comments of many Huff Po-ers, there may be many mitigating facts to support this womans decision. ( some claim she is not a nurse)
    I would like to see the medical profession take, on administering CPR to an 85 yr old person. I want to know if there was a DNR request in her files, I have seen a persons life prolonged by good intentions,… yet the extra life was filled with pain and misery.
    This IMO is not as cut and dried as I thought at first glance.

  13. Most people are process-oriented, not substance-oriented. So, if it’s policy to call and let someone know you’re going to be late, most people will make a call, and if someone answers, they’ll explain they’re running late, and if no one answers, they’ll say: “I called”.

    This mindset is partly the result of not being willing to pay enough to attract employees that can be trusted to exercise good judgement.

    Process, procedures, policy, and software, are substituted for the perceived higher costs of more capable employees.

  14. @ross

    “constitutional democratic republic”

    At the time of the ratification of the US Constitution, there was debate about whether we should have a democracy (direct, participatory decisions about laws and the allocation of resources) or a republic (a representative form of government). Jefferson and the democrats lost hard.

    What we got was a republic dominated by the urban financial interest. Only white, land-owning men could vote until 1850 or so, women didn’t get the vote until 1920, and blacks didn’t get full rights until 1965.

    In this context, “representing the interests of the citizens” is better understood as “representing the interests of the wealthy.”

    In the Federalist #51, Publius wrote:

    “Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”

    That is, the US government was founded with the elites in power, and designed from the ground up to be difficult to influence. The “interested combinations of the majority” to be guarded against is the laboring masses.


    “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure”

    which is clarified a bit later, that with a fragmented majority and a powerful minority, there will be:

    “less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter”

  15. Larry

    A very thoughtful piece that is more complex than it appears on the surface. Reading it sent me off on two strains of thought, though there are many more facets that are also worthy of exploration.

    The first is that we are living in a time where bureaucracy is held up as the highest standard. For some reason the idea of bureaucracy has been a process stamped on to a stereotype of government. However, our ruling corporate structure is in many ways far more bureaucratic and hence more conformist than our governmental agencies. This is of necessity from the standpoint of corporate management which requires adherence to “corporate norms” for one to succeed. It is subtly conveyed in MBA programs and theory.
    It is most often inculcated by managers who think that rigid job descriptions, conceived by technocrats who wouldn’t ever do those jobs, should define each employees actions without latitude for individual decisions. Behind this all is a terrible job market that forces this conformity lest one is fired and is the unable to find other employment.

    The second aspect that comes to mind is that our culture has come to lack empathy for those less fortunate. If you ponder it “reality TV” exemplifies this.
    Sadism reigns on reality TV, whether it is viewing “cracker shows” like “Honey BooBoo”, so we can laugh at the foibles and ignorance of “lower class individuals. Donald Trump’s show where he embarrasses minor celebrities for their lack of competence and they allow the humiliation of being insulted by this clown, in the vain hope they can regain some of their tarnished glory. The list goes on, but the bottom line is enjoying ones superiority over other people, or enjoying watching people being treated sadistically.

    That our country’s system seems to be falling apart is to a large degree due to
    the destruction of our overall sense of commitment to the community at large and its current celebration of chimeric individuality.

  16. A nurse at a home for the aged ignores the furtive pleas of a 911 dispatcher and refuses to perform CPR on a woman dying of cardiac arrest because she says its policy not to do it. (Here). She won’t even get someone else to do it.

    That’s because she was DNR.

    My Mother also had a “Don Not Revive” order on her, by her own request.
    And this woman’s family also said she had requested it.

    But yeah zero tolerance policies are still useless.

  17. Mark,

    I’m sorry I called you Larry. When I saw the blog I was more interested in reading it, than noting who wrote it.

  18. We went back to the golf course last night after HumpinDog got run off after saving golfie guy from the rattler (or from falling outta the tree). I left a turd on the front yard and the rest of the pac was over there where they have the sign that says #1. Well I had to go over and tell to disregard the number one only sign and give it a number two. And they all did and it was a bit untidy. Then we went down about a hundred yards to the place where they want you to pee (by the #2 sign) and drowned all the grass. Contrarians we are when they start off with a No Dogs Allowed! sign. Also, they dont spull real good because they use the word Tee instead of Pee on that First Pee ground.

  19. Exchange “Wisdom” for “Common Sense.” We don’t have much of that around any more either.

    “Take the nurse at the home for the aged. Her fear of dismissal from her job and any attendant liability permitted her to sit idly by while another person died. Take away that fear and you would almost certainly have had this person, sworn to reduce suffering, giving all she had to save another person.”

    My mother is 95. She has to wear a Do Not Resuscitate nothing “heroic” is done. She signed up for it years ago. If she falls and breaks another bone, she would be treated. If she has a heart attack, no. The family of the victim, who was 87 and in a nursing home, is okay with the nurse’s decision not to perform CPR. No one is allowed to die anymore!

    Can it not be equally said that letting someone die IS reducing their suffering? Elderly people with dementia/Alzheimer’s or severe arthritis pain do not have a “quality” of life. But better we should keep someone “alive” on tubes and a respirator, right? Most of our medical dollars are spent in the last three months of a person’s life on all sorts of “life-saving” methods when sometimes the most humane thing to do would be to let them go.

  20. itchinbayDog had it wrong about that golf course and all of those signs. The number 2 Tee is where they want them to poop not pee. One if by land and two if by sea or something like that. Rules!

  21. The conundrum for me is determining the difference between structure and rules. The science of performing for instance … there is a structure to performing but over analysis (sticking too closely to the rules) can kill creativity.

    Or in the more common day to day life, a young person gets a fix-it ticket from a police officer for a faulty exhaust system. Five days is the deadline for when the kid must present his/her fixed car at the police station for inspection to avoid a fine. The mechanic at the muffler shop has the flu and the car sits there for two days. The kid’s parents advise him to get a note from the shop explaining the situation and present it to the police officer hoping the officer will bend the rules a bit and give the kid a deadline extension. That’s creative thinking. The kid follows his parent’s advice. The officer has discretion in this matter, giving him room for creative thinking, and tells the kid he will work with him and adds 5 days to the deadline. The mechanic comes back to work and gets the car ready for the kid to present at the police station on the 6th day. The kid showed respect for the law in making the effort to communicate with the officer and the officer returned the respect. Rules have been bent but the structure is secure.

  22. Re: Indigo Jones

    Many of the Founding Fathers were severely flawed men and many even owned slaves but maybe the genius of Madison’s constitution was that it was a PROGRESSIVE charter designed to expand rights when the nation was ready and made it near impossible to take them back once granted (Ex: Ninth Amendment, Supremacy Clause, etc). When the nation tried to prohibit alcohol in the Eighteenth Amendment it was a complete disaster and was eventually restored. Can you imagine a southern legislator opposing slavery in the 18th Century? It merely wasn’t possible but they created a constitution that would do it at the right time. The federalists that opposed a Bill of Rights were a split constituency – one faction favored citizens’ rights but feared by naming those rights that the federal government would assume that it had authority over “unnamed” rights and liberites – which is exactly what happened. There is no perfect system or perfect government but in my view we have the best if we follow it.

  23. @ross

    “There is no perfect system or perfect government but in my view we have the best if we follow it”

    Many European countries with Parliaments seem to be doing quite a bit better, in my estimation.

    I think a lot of the liberties we enjoy as Americans — even those we consider uniquely American — were quite natural developments in the British legal tradition (the Founders were ethnic Brits).

    The British are not citizens, but subjects; and while they have a Bill of Rights, they have no formal constitution. Case law is the Constitution. And understanding like that would make, for example, the debate around the Second Amendment a heck of a lot easier to get a handle on.

  24. mespo:

    quite a defense of laissez faire capitalism.

    I agree with the words although I know it was not your intent to defend capitalism. With a few minor changes it would make a very good essay for the defense of free markets and thus human liberty.

    “Since knowledge, thinking, and rational action are properties of the individual, since the choice to exercise his rational faculty or not depends on the individual, man’s survival requires that those who think be free of the interference of those who don’t. Since men are neither omniscient nor infallible, they must be free to agree or disagree, to cooperate or to pursue their own independent course, each according to his own rational judgment. Freedom is the fundamental requirement of man’s mind.

    A rational mind does not work under compulsion; it does not subordinate its grasp of reality to anyone’s orders, directives, or controls; it does not sacrifice its knowledge, its view of the truth, to anyone’s opinions, threats, wishes, plans, or “welfare.” Such a mind may be hampered by others, it may be silenced, proscribed, imprisoned, or destroyed; it cannot be forced; a gun is not an argument.”

    Ayn Rand

    “The law is justice—simple and clear, precise and bounded. Every eye can see it, and every mind can grasp it; for justice is measurable, immutable, and unchangeable. Justice is neither more than this nor less than this. If you exceed this proper limit—if you attempt to make the law religious, fraternal, equalizing, philanthropic, industrial, literary, or artistic—you will then be lost in an uncharted territory, in vagueness and uncertainty, in a forced utopia or, even worse, in a multitude of utopias, each striving to seize the law and impose it upon you. This is true because fraternity and philanthropy, unlike justice, do not have precise limits. Once started, where will you stop? And where will the law stop itself?”

    Frederic Bastiat

    “It seems to me that this is theoretically right, for whatever the question under discussion—whether religious, philosophical, political, or economic; whether it concerns prosperity, morality, equality, right, justice, progress, responsibility, cooperation, property, labor, trade, capital, wages, taxes, population, finance, or government—at whatever point on the scientific horizon I begin my researches, I invariably reach this one conclusion: The solution to the problems of human relationships is to be found in liberty.”

    Frederic Bastiat

    “Away with the whims of governmental administrators, their socialized projects, their centralization, their tariffs, their government schools, their state religions, their free credit, their bank monopolies, their regulations, their restrictions, their equalization by taxation, and their pious moralizations!
    And now that the legislators and do-gooders have so futilely inflicted so many systems upon society, may they finally end where they should have begun: May they reject all systems, and try liberty; for liberty is an acknowledgment of faith in God and His works.”

    Frederic Bastiat

  25. Dredd, excellent comment –
    “Nations can and do go crazy en masse then generally turn on those who are still sane within them.”
    History furnishes many examples. I need not name them. I fear for the future of this country.

  26. Re: Indigo Jones

    If the United States actually followed it’s own constitution and checks & balances between co-equal branches and the Independent Judiciary actually did it’s top job of rejecting unconstitutional legislation we would not be beaten by any nation in my view. The writ of Habeas Corpus was derived from English Common Law but Congress and the Exectutive branch simply ignore it. Some of the best writing on this is by Alexander Hamilton in Federalist 78 “Judges as Guardians of the Constitution” – judges and justices are supposed to reject legal precedence if the law “circumvents” the Constitution. There is no greater example than the Fourth Amendment that is extremely clear in it’s meaning – a subordinate federal or state statute is supposed to “circumscribe” the Constitution – or you amend the Constitution. Ex: Maybe FBI black bag jobs (warrantless home searches) are a good idea but you need to amend the Constitution first – not disregard the law.

  27. Bron:

    I happily defend capitalism – and its older brother, achievement. I just don’t defend unfettered capitalism as I wouldn’t defend unfettered anything else.

  28. Bron,

    I know we’ve had the discussion before about the difference between good law and bad law, but if you think of what Mark wrote as a defense of laissez-faire capitalism, I think you missed the point. Mark’s argument isn’t that laws/rules aren’t necessary, but that they must be rational to be effective and that rigidly adhering to a rule in the face of reason leads to bad outcomes. He proposes common sense and allowing people to use it without negative consequence by dogmatically applying rules without exception (zero tolerance). The race for control and consolidated power has made systems too rigid to be effective and responsive. Bad rules and/or bad administration, not “regulation isn’t needed” which is the mantra of laissez-faire capitalism.

    Plus, Bastiat’s understanding of justice is both a primitive tautology and geared toward outcome determinism of his anti-government/anti-law bias. An argument built on bad definitions compounded by outcome determinism? Is a bad argument.

  29. Common sense sometimes can lead to great atrocities also – just punish the Jewish people or the Muslim people – just go after that group, etc. Last time I checked Guantanamo was still open although almost 90% were completely innocent and have since been released.

  30. @ross

    The branches are not co-equal and were never meant to be.

    The executive enacts the law, but the legislature makes the law. The legislature is the most powerful.

    The courts only interpret the law, they are the weakest. They were viewed as a sort of “reason devoid of will” due to their inability to actually act. This is made clear in the Federalist 78:

    “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.”

    Or, more succinctly:

    “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

  31. Gene H:

    Dont you think the Constitution is a restraint against unfettered capitalism? Which is as it should be, you cannot pollute your neighbors well without some sort of consequence.

    Government employees pulling sh*t out of their a$$es without regard to science is not regulation.

  32. Bron,

    Not exactly. Bastiat’s argument is still bad because it is built on an improper base geared toward his foregone conclusion.

    And yes, the Constitution is a restraint against unfettered capitalism and the proof of that lay in the Commerce Clause taken in the context of the rest of the document as well as the subsequent jurisprudence. Again we reach the point where regulation isn’t the problem. Bad regulation (and lack of or improper enforcement) is the problem. The sources of the these bad regulations though is three-fold. One is indeed ignorant and/or corrupted bureaucrats, another is a Congress that is woefully stupid when it comes to anything other than getting re-elected, and a third is the graft corporations pour on to pols to get regulations they want instead of the regulations that are needed to protect and promote the common good. Example: Holder’s recent statement about some banks being too big to hold accountable because if they were charged criminally they might wreck the economy. Bullshit. There’s an answer for that. Two in fact, probably more. One, break them up so that no one bank can hold that much power over the markets, two, nationalize them so they won’t be allowed to take revenge via market mechanisms. Seize Citibank and put Jaime Dimon in jail pending his trials for his various crimes. Break up the organization and make it clear that any such future scams like the CDS debacle will result in not only serious prison time for the executives responsible but forfeiture of their assets as punishment. That would fix that “too big to jail” problem right there.

    And don’t talk about it or telegraph it either. Just have the FBI, SEC and FTC show up at his office or home and arrest him. Cuffs, car, cell, trial.

  33. I hesitate to utter his name in this forum, but George Will wrote a good column on this pastry terrorist. He skewers the very pc term of “innappropriate.” But we all know pc is easier to skewer than well marinated lamb.

  34. This is the Fall of the American Empire.

    The USA has been on a gradual decline for a long time. No matter what time you wish to point to as the starting point, it clearly since 1980 has been on an accelerated pace towards hell. Since 2000 it has gone off a cliff.

    At this point there are only 3 possible futures.

    1. A Revolution.
    A Nation Strike to paralyze the US Economy and force a massive resignation of the entire government, including the President and SCOTUS. Hopefully leading to a full restoration of the Bill of Rights and the end of Americas war mongering for profit of the Military Industrial Complex

    2. A Secession of many states
    I used to think that Secession talk was absurd and worthy of mockery. Now I realize how wrong I was. I think this is a very real possibility assuming enough State level govt has not been completely corrupted as well. Never in a million years until recently did I think it possible that in a Secession of states that as a Liberal that I would gladly choose the ‘Confederate’ side to live.

    3. Mass Exodous of Citizens and the Collapse of America into a Fascist Totalitarian Corporatacracy
    Right now this is the most plausible, closely followed by a Revolution. It would not be surprising to see people with the means to leave actually flee to other countries as we decend to the depths of ‘1984’

    This country is headed towards one of those 3 choices whether you wish to believe it or not. Burying your head in the sand does not change that fact.

    Now there is a small chance of a grassroots political movement to clean up the parties, but lets be honest, that has little chance of happening. Both parties are too corrupt and paid for. For example, see the new GOP rules after Ron Paul delegates stance in this past GOP nomination. They are now rigging the rules

  35. Mespo, This post, like all of your posts, is glass half full. You provide a lot of positive not just laments about what is wrong, but showing how there is much more right in this world. It’s always a breath of fresh air.

  36. Gene H:

    And what about Barney Frank, Chris Dodd, Paul Sarbanes, Henry Paulson, Tim Geithner, Alan Greenspan, executives at Freddie Mac and various other government employees who also had a part in that debacle?

    Corporations operate in the environment they are given. They do not create the regulations, they just think up ways to legally get around them. If I was more knowledgeable about banking regulations, I could probably make a good case for the government having forced the financial institutions to create new financial systems to get around the constraints of the old regulations.

    Darwinian evolution on non-biologic entities-evolve or die isnt just for dinosaurs.

  37. Bron,

    We’ve got plenty of jail cells and each bad actor should be held responsible to the depth of their participation. In the case of the CDS? No one forced the banks to do that, it was a choice they made based on potential profits and that choice required the perpetration of multiple frauds. To whatever degree government employees empowered or furthered those frauds? Under the rule of law, they too should be held accountable. However, you are simply wrong about “Corporations operate in the environment they are given. They do not create the regulations, they just think up ways to legally get around them.” Or have all of Elaine’s stories on ALEC (and other “lobbying” groups like it) driving legislation at both the state and Federal level flown right over your head? Corruption is a two way street and your refusal to acknowledge that the offeror of graft is as guilty as the acceptor is nothing new. “Those po’ old businessmen would never bribe someone if that person didn’t have something they wanted.” Bullshit. Bribery and graft are crimes that require at a minimum two parties and business is as culpable in the those crimes as the weak pols who conspire with them.

  38. By the way, I think there are few arch-criminals worse than Paulson. He’s Wall Street’s boy all the way and lil’ Timmy isn’t much better. I’d pop the cork on some bubbly is those two were arrested for malfeasance of office and other crimes related to their coddling and protecting the bankers who wrecked the economy instead of brining them to justice.

  39. Mark:

    Thank you for the effort. This subject resonates with me greatly as it was something I had to deal with often in a department I worked for before the sheriff’s office.

    I had the approach that Standard Operating Procedures (SOP) were just that, standard procedures as opposed to laws of physics which was what the department equated them to; meaning absolute and inflexible. I had mentioned many times that the true nature of SOPs were guidelines where 95% of the time they were reasonable but eventually a situation will come about where they were harmful and we should allow the other officers discretion to deviate from them if they could argue that it was necessary to do otherwise for the greater good. But certain forces in the administration were too headstrong and threatened officers with discipline if they violated SOP even slightly. The rules being more important than the outcome.

    One of the worst examples of this was one day when I was working an Echo Level (highest priority) call came out over Fire Dispatch for a report of a car crashed into an irrigation canal five miles outside my jurisdiction in a rural area. Canals out there are very deep and there have been several fatalities involving people driving into them over the past few years. Our department had an unreasonably strict rule about leaving our area regardless of reason.

    Given the nature of this call and how life threatening it was I drove out there, arriving about 3 minutes later. A fire department guy who happened to be in the area and I pulled the crash victim out of the water. He was highly intoxicated and could have perished otherwise.

    Later, I was reprimanded for violating the SOP and driving out of jurisdiction. I held the position that exigent circumstances and case law pre-empted department policy and besides, the guy from the submerged car probably wasn’t going to file a complaint that I broke the rules to help rescue him. During my discipline interview I told them that life was more important than rules. Eventually they said I would just get a warning if I promised not to do it again. I told them in all honesty I would do the same thing if it happened again.

    There were other examples not as extreme as this one but I suppose my problem came because I was brought up in a different environment during my rookie / cadet years where things were more flexible given the greater good. The type of situation was similar to stopping a person for speeding and their driver license was expired for 6 months, they’re out in the middle of nowhere heading East and the believably say they just forgot to renew it. You tell them they have four days to get it renewed and we’ll let it go but under state law they are not allowed to drive. So you tell them just as you’re leaving “You cannot drive Sir, but are free to call someone on your cellphone to come and drive your car for you. Now, I’m going to drive West and won’t be back for half an hour. If you are gone, I’ll just assume you found someone picked you up, if you ‘know what I mean'”

    Humanity existed long before deparment procedures and supervisors did.

  40. Gene H:

    the only problem is that a corporation cannot use the full force of government to influence government officials.

    A mafia Lt. coming to a store owner and asking for protection money is not a bribe by the store owner to the mafia Lt.

    I have worked for an association in DC, I saw how it was done. It is why I say what I say. They need money for re-election and they arent shy about getting it.

    I was very disappointed by what I saw but then I was only 30 and still thought the best of our elected officials. Before that experience I thought like you did-it had to be a 2 way street. I dont doubt there are some companies who offer big money but the majority dont they are just trying to survive.

  41. Re: Indigo Jones

    Here is another way to view it: Under Article VI of the U.S. Constitution each and every government employee (local, state, federal) swears of affirms an oath of office to “preserve, protect and defend the Constitution of the United States” from all enemies [to the Constitution] both foreign and domestic. Section 2 of Article VI is commonly called the Supremacy Clause and this is not democratic in governance, it is hierarchical where the Supreme Court is the final word in constitutionality.

  42. Bron,
    Have you ever heard of K Street? Corporations and the Chamber of Commerce flood Congress and the Senate with Millions of dollars to influence their votes and they even write many of the laws passed by these bodies as suggested above in the reference to ALEC.

  43. “the only problem is that a corporation cannot use the full force of government to influence government officials.”

    No. They use the forces of greed because they aren’t allowed to run the risk of a physical coup without getting blown up reallllllll good.

  44. “Before that experience I thought like you did-it had to be a 2 way street. ”

    It is a two way street because that is how the crimes of bribery and graft are legally defined. You can’t have bribery or graft without (illegal) offer and acceptance by two different parties. To think otherwise is nonsense unless of course you also think someone can rape themselves. Some crimes by definition require collusion by a minimum of two parties. Graft and bribery are on that list.

  45. rafflaw:

    I know that by first hand experience. I worked for an association which used to write those laws. It is why I agree with Gene H on doing away with K St. I just disagree that business is the cause.

  46. Gene H:

    I am a farmer and need water for my fields, you are a government official and have control over a dam which controls water to my fields. Control which was passed into law by congress who was paid by the Sierra Club to dam the river so they could buy the farmers out when their land couldnt produce anymore. The water has been stored for that purposes and my crops are withering so I come to you and give you money to open your gates for a certain period of time so I can water my fields.

    That may be a bribe but the reason it had to be done in the first place is the crime.

    One thing leads to another and another. But it probably started with government doing something it wasnt supposed to do in the first place.

  47. So if we don’t have the American system of government created by Madison and the Framers – how would any of you write the legislation? Or should we not have written laws at all? Seriously how would you write it if you don’t like the American model?

  48. Gene H:

    I never said K St wasnt funded by business, associations are typically funded by business.

    You should know that.

  49. What the government is doing to private enterprise is crimminal. Wait until yout utility costs skyrocket because of restrictions on coal burning power plants.

  50. If the U.S. Constitution is fundamentally flawed then it can be amended but it is a long and slow process as it should be. Madison and the Framers studies over 2000 years of world history as to why governments fail so we should be very careful tampering with the design – it should be hard to amend the Constitution. Once viewed a C-Span show with some of America’s best historians and they said it would be impossible to read what James Madison alone read on government, there is no historian alive today that comes close to Madison’s knowledge on government. We should be very careful undoing it!

  51. “I never said K St wasnt funded by business, associations are typically funded by business.

    You should know that.”

    Then who exactly is responsible for their graft again? The people who accept it but not the people who offer it? Your contradiction is glaring.

    Business pays for K Street. They are responsible for their bad actions.

    Also, one bribe being used to offset the damage of a bribe by another party does not make either bribe right. Two wrongs do not make a right. A man killed my child but escaped justice because of the political interference of pols he gave “campaign contributions” to. Is it right when I decided to kill the man and his political flacks or is it still murder? It may be understandable. Some might think it is karmically just. But it is not right, it is outside the rule of law and no amount of rationalization would make it so even though the reason for the revenge killing was a crime in and of itself.

  52. Gene wrote:

    “..without getting blown up reallllllll good.”

    Gene, nice reference to celebrity blowup.

  53. Gene: What street in DC has all the hookers? Is it C Street or K Street or do the twain meet? I mean it seems like the hookers would be around the lobbyists and politicians. I think you might know the answer to this.

  54. Darren:

    Imagine reprimanding someone for saving a life. Officer, you bravely prove the point. The most moral outcome, indeed. Aristotle would be proud, the department notwithstanding.

  55. It is reasonable to NOT perform CPR on an 87 year old person. People die, especially 87 year old people. How about letting them die with dignity instead of with someone whomping on their chest for no reason?

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