Book Review: The Rule of Nobody by Philip K. Howard
The Rule of Nobody by Philip K. Howard is neither a well-written nor a well-edited book, but it’s worth getting past those flaws because the ideas contained within are well-considered and important.
Howard argues that the awakening of American society to its inherent social injustices during the 1960s lead to an well-intentioned but ultimately misguided attempt to legislate away human fallibility. Misguided because in writing laws that attempted to remove human fallibility, we wrote laws that remove human judgment of any kind. Removing human judgment from the exercise of law is a doomed project for many reasons, most pragmatically because the world is a complex and ever-changing place and no law written with the intention of legislating every outcome will be effective for long, if ever.
Howard provides copious evidence for the measurable costs of this legislative philosophy: an immense complexity of rules that must be understood and adhered to, approval processes that can take a decade or more to address urgent needs, billions of dollars wasted on bureaucratic list checking.
The book is liberally salted with anecdotal evidence, too, of bad decisions made in the name of rule following. A tree falls in a creek and causes a flood in a town, but it takes a week for the town government to pull it out because the creek is protected and requires an environmental impact statement before they can act. Firemen standing on a beach let a man drown because they haven’t been re-certified for land-based water rescue.
And although I find myself approaching these anecdotal examples with a healthy skepticism, they get at what I find is the most compelling aspect of Howard’s argument. It’s not just that the laws themselves are imposing a cost on society, it’s that the philosophy behind those laws creates a culture of powerlessness, removes meaningful responsibility, and devalues the principles the laws are intended to embody in favor of literalism.
Howard advocates wholesale overhaul of our system of laws, including and especially the laws promulgated by Congress and the myriad agencies of the executive branch. He proposes setting up independent commissions whose job it is to recommend simplified structures in specific areas, like school law or infrastructure approvals. He recommends other changes intended to prevent regression, like mandatory sunset periods for all new laws, and an expansion of the President’s ability to manage the executive branch. He includes an appendix in which he proposes five new amendments to the Constitution he calls the “Bill of Responsibilities” which would enshrine these ideas in the supreme law of the land.
All of these measures are about fundamentally shifting the way we think about government and the courts. Instead of looking at laws as specifying a path to walk on, we need to think of laws as defining a space in which human judgment can operate. Instead of responding to bad values by trying to legislate those bad values away, we should hold responsible the human being who expressed those bad values.
Which is why I have trouble wholeheartedly embracing Howard’s prescriptions for change. I want to live in a society where people are free to make reasonable judgments based on moral principles expressed in simple and flexible laws. But that society only works if there are consequences for exercising bad judgment. Howard makes the point that complexity in law makes it easier for bad actors to hide, but so does a bipolar electoral system, partisan manipulation of elections to guarantee safe seats, campaign finance laws that give disproportionate influence to money, and a free press that’s beholden to ratings and clicks. Howard’s proposals won’t fix those problems, and by themselves can’t bring about the change he’s looking for.
Reading this book immediately on the heels of Supercapitalism (my review here) I was struck by the way these two thinkers complement one another. I imagine they’re on opposite sides of the political spectrum, but they have the common goal of bringing human values and judgement back into the public sphere. Reich argues that our system of electoral laws corrupt the political process by making government a sphere in which corporations must compete, and in so doing turns politicians into machines for converting money into law. Howard says our distrust of those law making machines creates an environment of powerlessness, that prevents us from addressing our core problems. I think if we’re going to find a way out of the mess we’re in, we’ll need to address both.
If you’re interested in learning more about Howard’s perspectives, he gave a TED talk that covers a lot of the same ground. He also founded the advocacy group Common Good.
Postscript
At the beginning of this review I said the book was neither well-written nor well-edited. Here’s what I meant.
Howard structures his argument in two parts. Part one ostensibly defines the problem, while part two provides the solution. But he also organizes his thoughts into 18 propositions that extend through both parts of the book, and loosely groups those propositions into 10 subsections. Within any given proposition there are sometimes multiple italicized statements that might best be considered sub-propositions. The content of all of these propositions, sub-propositions, sections and headings tend to overlap, such that it’s not immediately apparent how the point Howard’s trying to make in one differs from the point made in another. And in fact, Howard repeats the same points many times with slight variations, usually accompanied by a particularly appropriate extended anecdote, designed to inspire more than it is to illuminate.
Even so it’s worth powering through the repetition, because the core of the argument is strong.
