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

  2. Gene H:

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

    You should know that.

  3. 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?

  4. 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.

  5. How does K Street get funded, Bron?

    Magical money dispensing unicorns?


    They are funded by business.

  6. 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.

  7. “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.

  8. “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.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. Bron, Bingo! Adapt or perish applies to virtually everything. Just ask those Betamax owners.

  16. 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.

  17. 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.

  18. 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

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