By Mark Esposito, Guest Blogger
In 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
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.
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.
Mike,
I am much better looking than Mark!! 🙂
Thanks Mark!
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.
Gene H:
Exactly and thus my point.
Bastiat was just against unfettered government.
@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.”
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.
Gene H:
Amen.
Mark,
I see we’re sharing brainwaves today. 😀
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.
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.
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.
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.
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
@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.
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.
Mike S:
Always happy to be considered with Larry. That’s good company.
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.
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!
Hmff.
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 bracelet.so 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.