FEWER RULES, BETTER PEOPLE

A philosopher defends the place of discretion—read, bending the rules—in a legalistic world.

“What do you do with a boy caught stealing food to feed his hungry family?” So asks Lam provocatively, answering with an anecdote: A police officer is called to arrest a young shoplifter trying to feed his little brother with pilfered peanut butter, bread, and milk. The officer was no Inspector Javert. Instead, he suggested that the shopkeeper put the kid to work cleaning the parking lot until the food was paid for—a Solomonic solution that flies in the face of a legal culture that increasingly demands invariable sentencing. Discretion, as Lam observes, can often thwart or lessen crime, while mandatory-arrest policies yield unintended consequences, among them a far higher death toll among women who are victims of domestic violence. This may seem counterintuitive, but Lam’s point is that while rules are essential, “if the rules are good, the quality of the enforcer never matters.” All too often the rules are not good, or at any rate not good enough to cover every circumstance, whence leeway is called for: “Interpretive discretion exists because laws sometimes set vague standards.” This interpretive discretion makes room for prosecutors to plea bargain and judges to offer inventive alternatives to cookie-cutter punishments. Still, Lam adds, discretion needs to be attached to laws that have strong “guidance value” so that laws are not applied with “arbitrary and discriminatory enforcement,” as they so often are in, say, cases where the defendant is Black and not white. Legalism isn’t a failed system, Lam adds, but the laws must be good, for if they aren’t, “bad laws followed blindly and enforced unquestioningly have just as much chance to destroy good governance as the mediocre leader making mediocre decisions.”

A convincing case for rethinking inflexibility in rulemaking in favor of discretionary checks and balances.