Are Rules Meant to Be Broken?

Ray Briggs
Does our society have too many rules?

Josh Landy
Or do we need more of them?

Ray Briggs
How can we strike a balance between anarchy and tyranny?

Josh Landy
Welcome to Philosophy Talk the program that questions everything.

Ray Briggs
…except your intelligence. I’m Ray Briggs.

Josh Landy
And I’m Josh Landy. We’re coming to you via the studios of KALW San Francisco Bay Area.

Ray Briggs
Continuing conversations that begin at philosophers corner on the Stanford campus, where Josh teaches philosophy.

Josh Landy
And at the University of Chicago where Ray teaches philosophy.

Ray Briggs
Today we’re aksking, are rules meant to be broken?

Josh Landy
Of course, they’re meant to be broken. Don’t tell me you’ve never done 70 on a road that’s 65.

Ray Briggs
That’s not really breaking a rule. Every time there’s a law, you’ve got a letter of the law, but then you’ve got the spirit. The letter of the law says, Don’t go any faster than 65 but everyone knows that really means 70. In fact, if the people around you are all doing 70, it can be unsafe to go under 65 the spirit of the law is to keep everyone safe, not to drive at some exact particular speed.

Josh Landy
But if you do 70, you’re literally breaking the law. That’s what it says in the Highway Code. They can pull you over, they can give you a ticket. Oh, so you’re gonna report me? No, I’m not gonna report you, right? I’m just saying that if you’re only five miles above the speed limit, yeah, technically, you’re breaking the law, but I don’t think you should get into trouble for it. If there’s some traffic cop in the vicinity, that cop should probably use some discretion and let you go.

Ray Briggs
Yeah, but where does that line of thinking end? Like if the police have infinite discretion, they could abuse it. They could give tickets just to people they don’t like and let everybody else go on their merry way. Discretion is kind of a recipe for acting on bias.

Josh Landy
All you need to do about that is train people not to be biased. Then you know you can encourage them to use their discretion fairly.

Ray Briggs
Wait, wait, you’re saying that we should have rules about how to apply the rules? That doesn’t sound like discretion anymore.

Josh Landy
No, but I’m not talking about rules. I’m talking about judgment. Judgment isn’t something you can write down like an instruction manual. It’s a kind of know how. It’s something you get from experience.

Ray Briggs
Okay, but think about this. Suppose you’re the kind of cop who targets people you don’t like. The more experience you get, the better you get at targeting those people that you don’t like. Why should we think that experience is gonna solve the bias problem?

Josh Landy
Geez, Ray, it sounds like you want us all to live in Kafka’s world where everyone’s a faceless bureaucrat shuffling papers around, and if they make a mistake and send you to jail. Whoopsie, that’s too bad.

Ray Briggs
Well, geez, Josh, it sounds like you want us to live in the world of Mad Max, where everyone takes the law into their own hands, like if you’ve got a dispute, ah, you settle it in the Thunderdome. No, actually, your proposal is even worse than the Thunderdome. At least the Thunderdome has rules!

Josh Landy
Look, I never said we shouldn’t have any rules. I just said we should have discretion when it comes to applying them. Yeah, right, you’re out. Your example is actually a good one. Think about the world of sports more generally. You’ve got a referee, you got a rule book, but the ref is the one who gets to decide whether a given ball is in or out.

Ray Briggs
That’s not true anymore. I mean, think about tennis. Just machines decide a lot of those calls, and everyone is better off for it.

Josh Landy
Are we really better off, though? Ray, come on, don’t you miss? John McEnroe yelling at the line judge,

Ray Briggs
Yeah, sports are fun and all, Josh, but the tennis court is not the court that really matters. Like think about domestic violence statutes, think about financial regulations, think about immigration law. These things are not games, and the last thing we want is judges settling cases using their magic eight ball.

Josh Landy
I totally take your point. Ray. I mean, judges can’t just be making stuff up as they go along. They need to be using their discretion wisely. But that’s what I’m talking about, training up a generation of judges with genuine wisdom.

Ray Briggs
I bet our guest will have more to say about that. It’s Barry Lam from UC Riverside, author of “Fewer Rules, Better People: The Case for Discretion.

Josh Landy
But first, how do we train people to be wise users of their discretion? Maybe we better start when they’re young.

Ray Briggs
So we sent our Roving Philosophical Reporter, Sheryl Kaskowitz, to talk to children about rules and hear the surprising things they have to say. She files this report.

Sheryl Kaskowitz
Kids know a lot about rules, since almost every aspect of their lives is defined by them. So they seemed like the perfect experts to consult for this story. I asked a bunch of parents to interview their kids about rules and share what they had to say. There were certainly some critiques, like about rules at home.

Maxine
I’m Maxine. I am nine years old. And one rule that I don’t like and think is unfair, is dishes are brung to the sink after eating, because kids learn by playing and like they need time to play.

Jacob
My name is Jacob, and I’m five years old. The rule I don’t like is not playing on my iPad. Other kids get to play on their iPads whenever they want, and I don’t.

Sheryl Kaskowitz
And even more about rules at school.

Lila
My name is Lila, and I am eight. A rule I don’t like is having to go to school for five days. It’s a really long time. It’s like spending your whole day at a place.

Gabriel
My name is Gabriel, and I’m six years old. I don’t like that. You can’t put toys to school.

Ira
My name is Ira, and I am nine years old. In our music class, we’re only allowed to ask questions at a certain time, but sometimes I’m really eager and like, I need to ask this, and our music teacher is just like it got away till the end, and it seems unfair to me.

Sheryl Kaskowitz
So some rules are unfair, but most kids also understand the value of certain rules.

Ira
At my school, how we have you must be kind, safe, respectful and responsible. That makes sense to me and is fair to me, because like makes sense to like, respect people and be kind people and be responsible at the school rules,

Lila
A rule that I like, that I think is fair, is sharing. So everybody gets a turn

Maxine
No shoes in the house, because it brings bacteria into the house. That just is, like, scary when you think about it.

Sheryl Kaskowitz
It seemed like there was general agreement that some rules are better than others, but opinions differed on the question of whether it’s okay for grown ups to bend their rules for kids. there was a Yes…

Lila
Because sometimes, if, like, we’re supposed to have homework on like Monday, the principal could tell the teacher that we can have the homework on Friday.

Sheryl Kaskowitz
And an “it depends”…

Ira
If the rules are really bad and the person in charge thinks they should change it, then yes. But if, if the rules are like, respect people, and the person in charge is like, don’t respect people, do what you want. No.

Sheryl Kaskowitz
Other kids said people in charge shouldn’t ever bend their own rules.

Maxine
No, because just change brings me anxiety.

Gabriel
They’re breaking a rule that they told everybody to follow, then they would be going against what they told everybody to do.

Sheryl Kaskowitz
I also tried to talk to a group of seventh graders who were over at my house to get their feelings about rules. It was a little hard to get them to focus away from their video game and over the chatter from the adults in the other room, but one kid got pretty philosophical about the whole thing.

Maddox
My name is Maddox. I think that rules are important sometimes, of course, so it’s not like an anarchy world that would be chaotic. But I also think that some rules wouldn’t be ethical for everyone. Sometimes rules are also like a paradox, where it benefits one person in one way and benefits another person in the other way, but then it is a problem for both the same way. So

Sheryl Kaskowitz
I think the experts agree rules are complicated but necessary.

Maxine
Imagine like a world without rules, like cars would always pass the speed limit and like at school, kids will, like, put hands on each other, everybody will go to the nurse and stuff like that.

I don’t really know what rule I like.

Ira
I think rules are good to follow… most of the time.

Sheryl Kaskowitz
Thanks to the panel of experts for weighing in, and to all of the parents for following my rules, for interviewing. For Philosophy Talk, I’m Sheryl Kaskowitz.

Josh Landy
Thanks so much, Sheryl for that fun and illuminating report. I think the kids are all right. I’m Josh Landy,withme is my fellow. Ray Briggs, and today we’re asking, are rules meant to be broken?

Ray Briggs
We’re joined now by Barry Lam. He’s professor of philosophy at the University of California Riverside, and author of “Fewer Rules, Better People: The Case for Discretion.” Barry, welcome to Philosophy Talk.

Barry Lam
Thank you very much for having me.

Josh Landy
So Barry, we just heard some charming kids telling us what they think about rules. Rules for kids. That’s kind of what got you started on this topic, is that right?

Barry Lam
That’s right. My daughter, when she was six and she’s 12 now, decided that it might be fun for her to participate in the family and have some chores. And so we decided that the very first chore that she had. The first rule of the house for her was Darcy empties the dishwasher. And we thought, Great, now we have somebody else doing the chore, but that role kind of devolved very quickly.

Ray Briggs
So what happened next?

Barry Lam
Yeah, so, like a lot of children, things are fun at first, but after a while, you know, by a while. I mean, maybe a week. The dishwasher just got backed up, right? And she said, Well, Darcy empties the dishwasher. Doesn’t say when I have to do it.

Josh Landy
Philosopher in the making.

Barry Lam
That’s right. And I said, well, um, you know, you have to do it, you know, at least, like, within an hour as of when it completes the cycle. And said, but what if I’m at school? What if I had what if I’m in bed? And I said, Okay, well, if you’re in bed, then you don’t have to do it. And if you’re at school, you have to do it after school. And so at this point, it’s Darcy empties the dishwasher, except when you’re at school, in which case when you have to come home, which is, what if I have Girl Scouts, unless you have another activity that you have to do. And then after that, she decided to open the dishwasher, start emptying, and then get distracted, right? And then had to impose this new rule, like, within how much time she had to do it. So you see where this is going. The rule ended up to be, you know, a page long, with multiple clauses and how much time she had to do it and so on, and what the penalty would be if she violated each of those clauses.

Ray Briggs
So did it end up working in the end? Did you just have to find, like, the right set of rules? Or how did you resolve this?

Barry Lam
I think the way that I resolved it was I saw where this was headed, all right, I saw that, okay. This is the one chore. She ended up getting some bunnies, and then she had to feed them, and she had to give them water. And that rule kind of started to balloon also. And I thought, you know, if I just keep going on this route of writing rules and revising it every time she finds some little weasel way out of it, I’m gonna end up with a rule book that is two inches thick for just hers in the house. And I said, I can’t keep doing that, right? And so the way I resolved it was, you know what? No more long rules. I’m just gonna say Darcy empties out the dishwasher within a reasonable time, and that’s it.

Josh Landy
So that’s a nice little capsule of the big distinction that I know you have in mind, which is between these two ways of thinking about how to set up society. You’ve got a little microcosm of society in your house with Darcy, and so you’ve got two options, right? One is what you call legalism, where you spell out every rule down to the last detail, and the other is something like a system of discretion. So you have, sort of, you have some principles, but they’re kind of vague, and it’s all about people using their judgment as to how to apply those rules. So it seems like one of the reasons why legalism is a problem for you is that you’re going to need this two inch thick handbook, and that’s just going to generate confusion because no one has the time to read that. What’s another reason, especially for grown ups, because that’s we’ve talked talking about kids. But when it comes to grown ups, what’s another reason why we should, you know, stay away from from legalism, from thinking about codifying everything as a rule.

Barry Lam
I think that the problem that I have mostly is not just with the length of thickness of the book for kids. I think that the problem is that I don’t develop in her the kind of judgment I think she needs determining for herself in the future when she’s going to try to find a way to weasel out when she has to follow a rule. And I think that applies fully in the grown up world. If anything, I think not enough of us think about this, how we would apply things in the household to the grown up world. You know, when I think about the grown up world, I think that we’ve just ended up thinking that the two inch rule book way is the way to do it. And there’s just so many examples that people have in life from, you know, going to the doctors and trying to get a bill paid or something, and realizing that actually, I’m caught up in a world where everybody’s looking things up in a five inch binder as to how to deal with, you know, removing ingrown fingernail or something like that. And so I think that it applies across the board.

Josh Landy
You’re listening to Philosophy Talk. Today we’re asking are rules meant to be broken with Barry Lam from UC Riverside.

Ray Briggs
Are you a rule follower? What’s more important the letter or the spirit of the law, and who should decide?

Josh Landy
Obeying,bending or breaking—along with your comments and questions, when Philosophy Talk continues.

Connie Francis
I pray the stars above I haven’t lost your love, but there are too many rules.

Josh Landy
There go those rules again. Have we got too many or too few? I’m Josh Landy, and this is Philosophy Talk the program that questions everything…

Ray Briggs
…except your intelligence. I’m Ray Briggs, and we’re asking whether rules are meant to be broken with Barry Lam, author of “Fewer Rules, Better People: the case for Discretion.”

Josh Landy
What do you think makes a good rule or a bad one? Email us at comments@philosophytalk.org or comment on our website, and while you’re there, you can also become a subscriber and follow the rules or break the rules in our library of more than 600 episodes.

Ray Briggs
So Barry, earlier, Josh and I were talking about technology and sports and how referees are using technology to help them make calls. Do you think the ideal situation would be one where referees don’t have to exercise their judgments and they can, just like, look at the instant replay?

Barry Lam
No, I don’t think that’s a good idea. I think that there are certain kinds of rules in sports, like line calling, where I’m willing. I think that it does make sense to automate it to some extent. I mean, some sports fans might disagree with me, but I actually think strike zone automation might be a good thing. I think we’ve seen a wide enough variation in calls of balls and strikes in baseball that I think, well, there is a definition of a strike zone, and I think the box that we all see on the television is a much better guide to that. I think automated line calling and tennis, well, you know, it might not be ideal, but it actually is much more consistent. But there are other rules in sports that I would really not want automated calling, like fouls or unsportsmanlike conduct or imputing, say, intention. So when you on a pitcher intentionally hits a batter, you could eject them, whereas if you think that it’s an accident, you just kind of issue a warning. And I wouldn’t want some kind of automated call for that kind of violation.

Ray Briggs
So that’s kind of interesting, because those seem like a different type of rule, actually. So I’m thinking about chess and like, there’s no, there’s no unsportsmanlike conduct in chess, and I feel like you could just automate a lot of the rules of chess too. Like, are the rules surrounding the sport actually kind of the same thing as the rules of the sport. Like, I can imagine saying, we need discretion for deciding when to play the sport, but once, once you’re playing the sport, you just have automated application of rules.

Barry Lam
I think it really depends on the sport. So, like, there are games where every single rule is a kind of line calling right? There actually are very precise conditions, whether you’re inside or outside, where you violate or not violate, but there’s just as common rules in sports that, like, almost by definition, kind of requires some kind of judgment. So I’m thinking about, say, figure skating or or or diving, right? There really is a kind of like built into those kinds of sports, a judgment of artistry, right? Where sometimes it’s about how straight the individual is from going up. But it isn’t just about how straight the individual is. And even in with respect to boxing, we see things like, you know, different judges thinking of certain kind of punch was like one point or not one point, you know, given their judgment about, you know, whether that really hit hard right squared to the chin or something. And I really don’t think that those kinds of rules, which are kind of essential to those sports, really admit of automation. Or I wouldn’t, I wouldn’t want to see automation.

Josh Landy
So it sounds like it’s a bit of a mix. And I’m wondering if, if everything isn’t that way. In other words, you know, we’ve got rules all over the place. You were talking about rules for, you know, how an insurance company refunds your medical expenses or something like that. And you’ve got, you know, financial rules, and we’ve got a system of laws and and all kinds of, all kinds of rules and laws and regulations. Isn’t everything a bit of a mix, just like in sports, where some things are susceptible of kind of yes or no judgments, and probably in those cases, we’re better off if we have, you know, a more mechanical way of determining it, and less less room for bias, and then other things are matters of human discretion.

Barry Lam
Yeah, you’re absolutely right. Josh, most things in life are a mix. In fact, I would hazard to say when it comes to human affairs and living together, it’s actually more discretionary than there are clear cut cases, right? So even when it with respect to speed limits, which is very close. Was clear cut as possible. Every state speed laws have a kind of vague spirit of the law clause added, which is, here’s the speed limit, but never drive faster than it’s safe. And never drive faster than the state is just like a foul call, right? Make a judgment. Is it safe in this circumstance? Because what I think is the main complaint I have in the book, is that we’ve treated all of human affairs as though it’s the precise one, so they’re good. So we would, we’ve erred on the side of, let’s make a speed law and write every little except when it’s foggy, it’s going to be 10 miles below. But when it’s rainy, it’s going to be 15 miles below. We don’t want that. We actually want the don’t drive faster, that it’s safe.

Ray Briggs
So all right, I take your point that sometimes we need discretion and how to apply the rules. It also seems like there are cases where we really don’t want people to have discretion, like aviation communication is one where you should just say the extremely standard thing, because it’s really costly to say a mistake. Like, that’s why there’s an aviation alphabet that makes the letters sound different from each other, and you should use those words. So if that’s right, like, how do I tell which are the cases that need discretion and which are the cases that don’t?

Barry Lam
It’s a great question, and I think that the answer is going to really depend a lot on specialists and expertise. Because, you know, I shouldn’t, as somebody who’s just a philosopher, be able to tell baseball players of the entire rule book, which ones are better off being automated and which ones are better off being discretionary. And like, you know, you just gave a great example where I wouldn’t be able to tell you know, sitting in my armchair, I might think I could think of some scenarios where you don’t use the aviation out, but probably not, probably they would be able to tell me. And I think there is a kind of practical wisdom that’s developed by the people who are in these roles that do have to develop these kinds of judgments, so long as they’re not only constrained by rules. Because sometimes in these roles, there are kinds of people who are just rule followers, and I think that might be the problem.

Josh Landy
So I think there might be, I mean, I agree with Ray. I think there might be dangers on both sides, right? There can be absolutely a danger of being too legalistic. We have an expression in Britain that jobs worth. That’s short for it’s more than my jobs worth. These are kinds of people who will tell you, Oh no, no, I can’t do well, can’t do that. Can’t no, can’t do that. It’s the rules. So that’s a kind of danger on this from the side of legalism. But then there’s also dangers from the side of excessive discretion. I mean, consider how many people are able to get away with how many things think about the the financial crash in 2007 2008 and there were no serious consequences for, you know, major players in the in the financial industry, because there were no rules, right? There were no rules that anyone had broken. Then this, you know, you can, you can list case after case you can have, you know, cases of companies polluting rivers. You know, if you don’t have a rule that says explicitly, here’s what you can and cannot do, and here are the the penalties for it, and the penalties are severe. You know, a lot of companies are going to be like, thank you very much. I will now, I’m gonna self police, and in my self policing, I’ve decided what I’m doing is just fine. So aren’t there dangers on the other side? Barry, even if, even in our current society?

Barry Lam
Oh, yes, absolutely. I am not an advocate of no rules, right? I am an advocate of rules that are followable, comprehensible, and that leave room for people to make judgments in exceptional cases. And I’ll do what you want better. Josh, you know, here’s here’s something that is roughly a rule, which is, doctors, you know, be careful how you prescribe medication prescribed to the label. But there’s this thing called off label prescription, where doctors are essentially allowed to prescribe a drug on their judgment, even if you know it’s not for the thing that it was approved for, that gets out of hand, and we have the opioid epidemic, right, and that’s a danger. The opposite of that would be never prescribe a drug off label. But think about that rule. A doctor should never, even if they have really good evidence in their own practice that a drug for sleeping might be good for depression, will never be able to prescribe it for depression. You know, the in between is to have the rule, but to have some kind of mechanism for the doctor to be able to do that with some good reasons for it.

Ray Briggs
You’re listening to Philosophy Talk today. We’re asking, are rules meant to be broken with Barry Lam from UC Riverside. So Barry, I want to ask about an asymmetry in discretion that you talk about when you talk about discretion and law enforcement, where it seems like sort of the police and the judicial system, one of the things that they do is. Punish people for breaking the law, and so it’s, it’s really important that they not be able to punish people if they’re just like, Well, you didn’t really technically break the law, but you give me a bad vibe, but you point out that, like the police, don’t have to enforce the law in every case, like with judges, it’s sort of different for different jurisdictions and different crimes, but if there’s no sort of, like, mandatory minimum sentencing, they don’t have to punish you really hard. So it seems like you think it’s a good thing that people should be able to get away with breaking the law in some cases. Can you just, like, explain why that is?

Barry Lam
Yeah, you know. So something that I think everybody can agree with is that we don’t want every last jaywalker in New York City being ticketed for jaywalking, right? There’s sort of the West Coast Way of crossing the street where you have to stop at every single light that says, Don’t walk, and then the East Coast Way, but technically, that’s a breaking of the law, right? There are lots of laws that are being broken all of the time on the streets, and a lot of cops seeing them, and they don’t arrest or ticket every last person who’s doing that. That’s something that we can all get behind. And the reason for that is we know what it would be to be living in a society in which every last Jay Walker gets, gets ticketed. Nobody wants to be in that. First of all, traffic would slow down. The reason for those kinds of lobs is that we want to make sure people keep moving and don’t get hit by cars. And it just turns out that in New York City, kind of the haphazardly, chaotic way people do cross the street is more ideal for the flow of traffic in those in those places. So, you know, you know, it might sound like, Oh, Barry just wants cops to be able to let people, actually, I do. I actually think there really are a host of law, laws that, you know, I really want to be there. I really do think it’s important that sometimes the cops have the power to ticket a jaywalker, but I don’t think every last jaywalker, and I think that that generalizes a lot more than people think.

Josh Landy
So we’ve got a question that I think is more or less in this same area. It’s from Kevin in San Francisco. Kevin writes, immigration law seems like an area where it’s not just a question of rules. Border officials get to use their judgment to allow or deny entry to visitors on almost any basis, and Fourth Amendment rights against search and seizure are suspended even for citizens at ports of entry. What we’re seeing right now in the United States makes me wonder whether the problem is judges going rogue, or whether it’s that we don’t have a clear enough set of laws. So what do you think about that, Barry?

Barry Lam
I think that we have a clear set of laws. I just think we people are exercising discretion according to instructions from an executive that aren’t correct, right? So that we can say that people are making a lot of bad calls, right? And sometimes you can make the bad calls the other way as well. You know, a lot of times discretionary decision making can be driven by broad policies like, you know, you know, right now we want to be very permissive about the border, and so let more people in than you otherwise would. And right now, we’re going to close off the border, and you’re going to be as hostile as you can I think those are two otherwise bad ways of making decisions, mostly because they’re coming from a higher up that I actually like the idea of real discretion being allocated to people at the border, meaning, use your judgment with the evidence that you have before you, with the person who you’re talking to right now, and make a judgment about the safety. Make a judgment about, you know, we want tourists to come into this country and spend their tax dollars and visit us and so on. Use that kind of judgment and give people the power to do that. I think one of the problems right now is that, you know that discretion is being curtailed by, you know, higher ups.

Josh Landy
Okay, but let’s broaden out from this particular question a little bit. Part of the problem is precisely the failure to codify norms into laws, right? So that there’s a system, obviously we have system laws, but there’s also a bunch of norms, right? There’s we normally, we don’t do this. Normally, we do do that. And so what do you think about that? What do you think about this worry that many people have that, in fact, part of the reason that that democracies can break down is because there’s insufficient guardrails in the form of very clearly spelled out rules for how government operates.

Barry Lam
Two things I think. One is that I think I agree, to a large extent, that some parts of reigning in the power of executives is a good thing with laws. But I think one of the things that we’re we’re actually seeing is that laws don’t actually help either, right? I think that what you’re seeing is individuals in power just blatantly breaking laws, right? If they’re blatantly breaking laws and and there’s no other power there to enforce. Enforce those laws against an executive, then, you know, put, put even more laws on the books. Have more law enforcement. The law enforcement, it takes instructions from the executive anyways, right? So, like, they have the ability to, you know, break the law also. So I’m not sure that it’s just an issue of not having enough laws that are constraining the power of rogue executives, I think that they’re happy to just blatantly violate laws themselves. And you know, norms are gonna be the things that protect us, even when we have as many laws as we want on the books.

Ray Briggs
Yeah, so I guess this kind of raises a question for me, so I agree with you that, like, if you’ve got a rogue executive breaking the laws more laws is not going to help. But I’m kind of curious about cases where people misuse their discretion in systematic ways, which I think just happens all the time, like, I think, like, police bias is a real thing, and that’s basically the police applying their discretion to some people more than others, and so like, how do you get people not just to exercise discretion, but to exercise it well and wisely?

Barry Lam
I am very concerned about this problem, and I think there are a couple of things to say about it. One is, there might be the kind of person, like a referee who is constantly told that they are calling balls outside of the strike zone as strikes, and when you give them evidence, they’re completely recalcitrant, right? I think that’s a good reason to fire individual referee, right? The other kind of cases when they don’t have that kind of data. And when you give them the kind of data they are willing to kind of adjust the strike zone that I think we need to have more of, right? So we are in a data driven era. And I really do think that you can present an individual officer with their past arrest rates. You don’t have to present. You know, these things are in the records that chiefs look at, right, which officers are the kind of person who arrests every last person for resisting arrest? Right, where the average over the department is, like two such arrests over a year, and some guy has 23 resisting arrest, like something’s going wrong with that particular officer. So I think there needs to be accountability within the professions that we are trying to fix, accountability within the police profession, or accountability within doctors who over prescribe, you know, accountability for all of the bureaucrats that make discretionary calls. There should be ways for them to improve or be fired if they don’t improve.

Ray Briggs
So I think I have also a thing that’s at the back of my mind about, like accountability and how it differs from further rules. So I’m just thinking like a really low stakes case. So I definitely have trouble figuring out what the social rules are like, the unspoken social rules in a bunch of situations, and I worry about doing rude things, and a lot of the time, like somebody’s unhelpful advice will be, well, just be yourself and do what seems commonsensical. And I’m like, if I knew what seemed commonsensical, I wouldn’t have this problem. And I think I found really helpful is actually just somebody spelling out what they think the social rules are in a clear way, is that, like that like that seems like teaching me to use my discretion, at least giving me feedback, even though I’m not even being like, rewarded or punished for anything. I’m just being given information. Is that being given a rule book? Or is that something else?

Barry Lam
I would like to think of it as something else, like, one of the things, as you both know that I have a problem with is legalism, right? That’s the idea that, you know Ray, don’t, it’s not going to be Be yourself, but it’s also not going to be when you are in an elevator, make sure you’re six paces away from the next person, next right? Like, that’s legalism, right? Like, you have to, like, measure out your, your you know, how far you’re away. Make sure you’re facing, you know, 90 degrees from, you know, the other individual. I like the idea of, I call it vague rules. Some people call them principles, right, right? So they give you more guidance, right? But they don’t give you a rule, right? So it’s something more specific than Don’t be a jerk, but it’s not as specific as you know, in a car, make sure that you say at least six words over the course of five minutes. Does not seem awkward, right? I don’t like those kinds of things.

Josh Landy
You’re listening to Philosophy Talk today. We’re asking whether rules are meant to be broken with Barry Lam, author of “Fewer rules, better people. The Case for discretion.”

Ray Briggs
If you could rewrite the rules, which ones would you change, or would you do away with them altogether? How would you make sure the people in charge use good judgment?

Josh Landy
Rules being judged and lines being smudged—plus commentary from Ian Shoales the Sixty-Second philosopher, when Philosophy Talk continues.

The Fall
It broke his mind, trying to break the rules.

Josh Landy
If you try too hard to break the rules, will you just end up breaking your mind? I’m Josh Landy, and this is Philosophy Talk the program that questions everything….

Ray Briggs
…except your intelligence. I’m Ray Briggs. Our guest is Barry lamb from UC Riverside, author of “Fewer rules, better people, the case for discretion.”

Josh Landy
So Barry, we’ve got a comment from Angie on Facebook. Angie refers to your book and says that its title and description brings to mind Aristotle and particularism. I’m interested in the idea of educating children so that they’re able to discern the mean, kind of Aristotelian mean within a scenario, so they can be ethical people. So I’m curious about whether this sort of education from an early age is part of the ideas Professor lamb is focusing on. So Professor Lam, is that part of what you’re thinking about?

Barry Lam
I am maybe not explicitly about Aristotle, but I am thinking about children making judgments about when it’s okay not to unload the dishwasher, when other things are going on and that’s not the highest priority, and when it is that they have not contributed positively to the family life, or they’ve contributed negative to the family life. In so far as Aristotle was talking about being able to rationally, come to have some kind of practical wisdom. You know, that’s the most important thing, I think, in raising children. And I think that that’s the kind of thing I would like to see in society more generally.

Ray Briggs
I want to come back to something from the previous segment. I want to ask about, like, accountability. So one way to have accountability is to have rules about rules, which I take it you’re not gonna like, but like, for instance, mandatory arrest and mandatory minimum sentencing are ways of telling people, yeah, you have to enforce the rules. And like, that’s a kind of accountability for messing it up. So I take it that’s not something you’re in favor of because you don’t like more rules. But why not?

Barry Lam
Well, in those particular cases, I think we have very good evidence that they’ve been kind of a disaster for Paul in policies for cities and and the country or the United States. So mandatory arrest is basically saying that if police officers see a certain crime being committed, they have to arrest somebody. And mandatory arrest policies were implemented in the 80s, and many are still around, mostly for domestic violence and for violations of restraining orders. Domestic violence and when you do not have the ability to make a call, a judgment call of whether an arrest is okay or the best thing to do in a circumstance, then police end up arresting one or both people who are when they’re called out to a domestic violence call, and that has turned out to have ballooned The jail and prison population, most notably for women, and the outcomes have been much worse for victims of domestic violence as a result of that. So that’s one reason why I don’t like that kind of policy. And the other thing for mandatory minimum sentencing is that’s led to a ballooning of the prison population to what a lot of people judge, and not just judges themselves. But a lot of you know people you know 10 years for possession of cocaine or heroin, where you where that makes no distinction between people who you know, let their boyfriend you know, put something in their luggage and somebody who’s actually a drug mule for the cartel. No distinction between that. That’s an unmitigated disaster as well. So I think that’s the reason why I don’t believe that we should remove discretion from judges and police officers.

Josh Landy
So Barry, you’ve said a lot of very wise things. I trust you to have discretion. So we’re going to make you Zara rules today, if you are put in charge of systems, all systems of rules, nationwide, maybe even worldwide. What’s the first thing that you do as czar to create a better world for all of us?

Barry Lam
I wouldn’t get rid of rules. I am not a big fan of just rapid deregulation. The very first thing that I would do would just be very moderately for every single rule. I would add a clause, which I call a discretionary clause, which is just like adding, follow the speed limit, but don’t drive faster than it’s safe, right? This rule, unless there are reasonable cases where it doesn’t apply, that’s all I would apply. That’s all I would add to it.

Josh Landy
But how do you how do you decide when it’s reasonable? You said a very nice thing earlier about off label prescription. You said, you know, give doctors discretion to prescribe off label if they have good reason. But who decides? How do you know what constitutes a good reason?

Barry Lam
What constitutes a good reasonin the doctor case will be very different from what constitutes a good reason for a police officer who’s on a call and I. I don’t think that that kind of thing, if we knew how to mandate that, we would write it into the rules. And I’m saying that’s precisely what we don’t know and why we shouldn’t be writing into the rules. You know, rule makers have tried to do that. They have tried to say, here are the situations where you arrest them, when you don’t arrest and give like, a list of 25 different things. And those are disasters, right? Because they can’t see all of the circumstances ahead. So I would say I would like doctors as a profession to come up with some kind of moral principles of what counts as a good reason, right, and hold each other to that. I would like police officers to be able to do that too, rather than issue some kind of mandate ahead of time.

Josh Landy
So Barry, one of the things I loved the most in your book is essentially to give people a discretionary budget. And I imagine I can see this working brilliantly in the case of Darcy with the dishwasher, right where it’s like, look, you know, we want you to empty the dishwasher, but you can use your judgment, and we’ll see how that goes, where you get to make a certain number of judgment calls. If you do really well, we reward you. We increase your budget. And of course, we see this, not just with dishwashers, but parents, as their children get older and older, they give them more and more freedom or more responsibility, you get to decide when you go to bed, and you know, if turns out that you’re constantly going to bed at two in the morning at that point, maybe we intervene, right? So if it goes badly, we reduce the discretionary budget. Your thought is, do that for adults, right? Give more adults in positions of power a discretionary budget, a certain number of judgment calls they can make. If it goes well, you give them more. If it goes badly, give them less. Can you say a bit more about that? And why you think that’s a good idea?

Barry Lam
I think it’s a good idea because one of the reasons why we have very detailed rules is because we think that people, when they’re on the job, don’t know how to do that job, right. And so we give employees at McDonald’s exactly what they’re gonna say when somebody goes to the drive through. Or we give, you know, a student, exact instructions as to how to, you know, help you with your research. And you say every last of you see the word this highlighted or something like that. So this is sensitive to that, right? So when somebody is just starting out, they may not have cultivated the judgment about how to do off label prescriptions. Maybe new doctors aren’t given off label prescriptions until they develop some kind of judgment, or they’re when they start out, they’re given five a year, or they’re given 10 a year. So I like the idea of having a discretionary budget to help cultivate judgment, but also to keep the rules in place so that, you know, I’m very sensitive to the idea that we need instructions for people who are just new to a job to do. And this is true of policing, it’s true of doctoring, it’s true of, you know, professor and grading and so forth.

Josh Landy
Okay, I love this, but I’m not sure how optimistic I am, that’s the only question. Because I really like this idea of training people’s judgment, of encouraging people to get better, using their judgment, giving them opportunities to practice their judgment. How far can we take this? I mean, you know, in the book, you cite a Chinese philosopher Han Fei from around 300 BCE, who isn’t super optimistic about human beings. He thinks, you know, most of us are just kind of average. We’re kind of middling. We’re not great we’re not Solomons, we’re not great judges, not great referees, and we’re sort of okay. So how optimistic are you? Barry, like if we, if we put the system in place, would ordinary people like you and me be able to rise to the challenge and become great judges, great police officers, great referees and so on, or could it potentially go badly?

Barry Lam
I’m more optimistic than Han Fei i think we’re going to do a little bit better than he says that we’re going to but one of the nice things about the discretionary budget is there could very well be people who never earn any more discretionary dollars to add, and the way that we’re responding to them now is with detailed rules and so forth, which I think is a bit of a disaster. But you know, this is a way of having both right? The idea that people who are very good at their job, who do prescribe off label and help a lot of their patients do get more, but the people who are awful at it, who are just pushing pills on patients, don’t get more, and so they’re still constrained by the rules.

Ray Briggs
So if you were to give listeners one piece of advice about when and how to exercise their discretion that they could take away. What would you tell them?

Barry Lam
If you are, in any way, some kind of bureaucrat, and that includes being inside the household, or you’re some kind of rule maker, you work at the DMV, or you’re the manager at a supermarket or something, just to be sensitive to the idea. Right, that you should not be just a robotic rule enforcer yourself, that the rules are there for a reason, and sometimes enforcing the rules goes against the spirit, and this is like an old complaint. But if you are in a position of authority, exercise your discretion. Right? Whether you’re a nurse, whether you’re somebody in customer support or something like that. Exercise your discretion wherever you’re a bureaucrat.

Josh Landy
Well, Barry, the rules of radio tell us that it’s time to say goodbye, but I want to thank you so much for joining us today.

Barry Lam
Very happy to have been here. Thank you, Josh. Thank you, Ray.

Josh Landy
Our guest has been Barry Lam, professor of philosophy at UC Riverside, and author of “Fewer rules, better people: The case for Discretion.” So, Ray, what are you thinking now?

Ray Briggs
I’m thinking that, like in a lot of my own philosophical work, I worry about people trying to exercise illegitimate control over each other, and I wonder if exercising more discretion could be a way of relaxing illegitimate attempts to control other people.

Josh Landy
Yeah, yeah. And I’m sort of feeling guiltily about my own life. Am I a faceless bureaucrat?

Ray Briggs
You have a face.

Josh Landy
Thank you, Ray, that’s the nicest thing anyone said to me today. we’ll put links to everything I mentioned today on our website, Philosophytalk.org where you can also become a subscriber and question everything in our library of more than 600 episodes

Ray Briggs
Now… as if this guy would ever follow the speed limit—it’s Ian Shoales the Sixty-Second philosopher.

Ian Shoales
Ian Shoales… Many believe we’re over regulated, and it’s hurting all kinds of things, economic growth, innovation, The Sex Robot industry. Others claim regulation and rules are good. Speed Limits, safety belts, not allowing handguns and football games. Many rules seem arbitrary, like no parking every third Monday, no left turn after four gas grass or booty. Nobody rides for free. Not all rules come from legally designated rule givers. Thursday is queer day, for instance, which I remember from junior high was never really a holiday. Many rules change over time, hair, length, hemlines, smartphones and classrooms, many of us speed through yellow lights, throw empties out the window, smoke and no smoking areas. Make noise in libraries, refuse to put our money where our mouth is, take off our shirt and shoes and whine that we get no service. Did we not see the sign? The trouble is, we are contrary nations swarming with contrary niches. There’s a speed limit. Oh yeah, we’re gonna drag race. That’s not safe. Oh yeah, we’re gonna play chicken too. Not the chip from my shoulder. I dare you cross this line. Okay, bet you won’t cross this line. I double dare you. Many rules have been shattered. To Flinders by the challenge of the Double Dare. The most egregious rule makers are often bicycle riders who seem so nice in the coffee houses with their shiny two wheelers and teeth, but thanks to them, half the streets in town are bike lanes, yet they still ride on the sidewalk and they are insufferable. They think they’re saving the planet with mylar. They stop at red lights, not very often. Scofflawism is on the rise, our beloved president is not setting a good example earlier this year as a show of support for Elon Musk, the Steve McQueen, you might say to his Yul Brynner, if this were a low rent remake of The Magnificent Seven, he pitched the Tesla on the White House lawn, just like a Barker in a side show. I don’t know if he sold it or not, though, someone said that it’s against the rules for President to sell cars while he stole an office. Let’s face it, he’ll never be out of office again. Does he even have a driver’s license? Does even know how to drive? I guess it doesn’t matter. Also, the Supreme Court seems to be shooting a carte blanche, as it were, to do whatever he feels needs doing. So good on him. I wish him luck with this. Tesla Hawking America is turning onto a giant carnival anyway. Just don’t offer a test drive. Mr. President, paying cash off the lot out the door, you ride the roller coaster at your own risk. You know what I mean? If you don’t knock over the milk bottles, you don’t get your quarter. Quarterback, you don’t take the giant scratchy pink bunny home with you. Either you pay your money, you take your chances. What’s the worst going to happen on a tilted world? You’re not going to break your neck little whiplash. Maybe then you take your giant scratchy pink bunny home, thanking our system of government for the meager blessings sure to come your way. The point being, the President’s heart may be in the right place. Really, sure. Why not? But if he’s gonna turn the White House into the merch 10th the county fair, maybe should push things a little closer to his heart and stitch crypto wallets, for example, really long, red neckties, orange toupees. Have Elon push his own vehicles and change the pitch. See The Trouble with the Tesla? They’re pushing it as a car of the future, but clearly it’s a prop from a buck rogers movie, which is great. We seem to be heading for some rough times and a snazzy, licking rocket car from the 1930s might be just the ticket to tie us over. We need driver hats, though, several leather caps with goggles and lightning bolts coming off the side. And the Tesla should emit flames from its exhaust pipes every time it revs up. If you throw in a ray gun that would be value added, especially if it’s the XZ 38 decendator pistol by the same people that made the daisy air rifle. Don’t let Elon get near it, though. I mean, no reflection on the guy, but can you really trust him with a loaded weapon? I don’t think he’s ever opened a manual in his life. Do you? I gotta go.

Ray Briggs
Philosophy Talk is a presentation of KALW San Francisco Bay area and the trustees of Leland Stanford Junior University, copyright 2025.

Josh Landy
Our Executive Producer is James Kass. The Senior Producer is Devin Strolovitch. Laura Maguire is the Director of Research.

Ray Briggs
Thanks also to Pedro Jimenez, Merle Kessler and Angela Johnston.

Josh Landy
Support for Philosophy Talk comes from various groups at Stanford University and from the members of KALW Local Public Radio San Francisco, where our program originates.

Ray Briggs
The views expressed (or mis-expressed) on this program do not necessarily represent the opinions of Stanford University or of our other funders.

Josh Landy
Not even when they’re true and reasonable. The conversation continues on our website, philosophytalk.org, where you can become a subscriber and question everything in our library of more than 600 episodes. I’m Josh Landy.

Ray Briggs
And I’m Ray Briggs. Thank you for listening.

Josh Landy
And thank you for thinkin.,

Zeus and Roxanne
As scientists we have to circumvent these ridiculous bureaucratic regulations, no?

Star Tre: Into Darkness
You understand what Star Fleet regulations mandate be done at this point.

Jaws
I want him to read the boating regulations, the rules, you know, before he goes out on his own.