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Philip K. Howard: We can't avoid values

The best-selling author of “The Death of Common Sense” talks about the ways in which regulation and bureaucracy prevent people from exercising judgment and authority.

December 6, 2011

Philip K. Howard is a lawyer, writer and reformer who argues that the American legal system and bureaucratic structures have eroded individuals’ freedom and ability to do what they think is right.

“We have this crazy system where we tell everybody how to do things and all that matters is compliance, not accomplishment,” he said. “So -- surprise, surprise -- nothing is working very well.”

Howard is the author of several books, including “The Death of Common Sense,” “The Collapse of the Common Good” and “Life Without Lawyers.”

He is the founder and chair of Common Good, which advocates an overhaul of the American legal system to set outer boundaries of acceptable conduct instead of subjecting ordinary interaction to legal scrutiny. His ideas have attracted broad, bipartisan support. He has lectured and written for a wide variety of audiences and has appeared twice on “The Daily Show with Jon Stewart.”

He spoke with Faith & Leadership about the ways in which bureaucracies impede leadership and innovation. The video clip is an excerpt from the following edited transcript.

Q: Tell us about your work.

I’ve been thinking for a couple of decades now about the relationship between legal structures and human behavior.

What I’ve found is that [Americans] at every level of responsibility can’t do what they think is right because the legal system has become either so dense and thick, in the case of bureaucratic structures, or so random, in the case of litigation-related structures, that people more or less tiptoe through the day looking over their shoulders with their noses in rule books rather than striding forward to try to accomplish what they think they should be doing in their lives.

Q: Why is it harmful to have so many laws or regulations?

It undermines almost everything that we value in a free society. It devalues individual accomplishment. It makes it very hard for people to act on their best instincts. They’re self-conscious. They’re thinking about how to stay out of trouble rather than getting something done.

It also makes it very hard to live by your values. Morality is something that’s uniquely tied to circumstances -- what’s appropriate at this time versus another. Fairness is the same way.

If you’re complying with a rule book or you’re trying to satisfy the lowest common denominator so that no one will ever disagree with it, then you’re disabled from doing what you think is right.

Q: You’ve advocated replacing bureaucracy with accountability. What difference would that make?

Bureaucracy is like a giant blob. But you could get rid of most bureaucracy if you were willing to give individuals responsibility to do the task.

It doesn’t mean deregulate. People can have the regulatory goal of having a safe workplace or treating customers fairly or that sort of thing without giving them 1,000-page manuals to tell them how to do it.

But you can’t give people that freedom to do things their own way unless they can also be held accountable. But we’ve created a legal structure where it’s very hard to hold people accountable.

Certainly, nobody in government below the level of elected officials is accountable. You have civil service systems that make it impossible to fire anyone unless you’ve committed a crime. It’s almost like Miracle-Gro for bureaucracy -- if you can’t hold somebody accountable, you’re going to have to have rules telling them how to do their jobs.

Q: There’s kind of a front-end quality to it -- you tell everyone beforehand how to do everything, but you don’t hold them accountable at the other end.

Right. We have this crazy system where we tell everybody how to do things and all that matters is compliance, not accomplishment. So -- surprise, surprise -- nothing is working very well.

Health care costs are out of control. Schools don’t work very well. We’ve created a kind of central planning -- choices all made in advance -- except that at least the Soviet central planners got together every five years and came up with a new plan that didn’t work very well. Our regulation just keeps piling up without a new plan.

Q: For people who are working in these big systems, these big bureaucracies, what would you advise them to do to get rid of those regulations?

All institutions have a tendency to take on a life of their own, and so all institutions periodically need a spring cleaning. You always need to re-evaluate your ultimate goals.

That’s true in government. It’s true in not-for-profit organizations. It’s probably true in the church as well. There needs to be a kind of constitutional convention every decade or so, so people can say, “Are we doing the right thing? Is this really advancing what society needs or our institution needs at this point?”

If you don’t go through that exercise, then inevitably -- because institutions, for the reasons that Reinhold Niebuhr talked about, are inherently less moral and less accountable than real people -- the institutions veer slowly in the wrong direction.

Q: In reality, pruning is probably less common than adding on.

There is a natural tendency in all human institutions for people to cling to what they view as their entitlements or the things they’re used to. That’s why change generally occurs in times of crisis. Because it’s only in times of significant crisis that people will really face up to the need to pull the rug out from under current expectations and start all over again.

Human nature fights change.

Q: You offer some outrageous examples, such as the kindergartener being hauled away in handcuffs. But aside from the occasional dramatic example, what’s the harm caused by overregulation?

American culture has changed over the course of my life. As a pediatrician friend of mine in Charlotte, N.C., said, “I don’t deal with patients the same way anymore. You wouldn’t want to say something off the cuff that might be used against you.”

Think about that. That’s a pediatrician thinking that way. Teachers no longer feel empowered to do their jobs. Ministers are told not to put an arm around a crying child -- or a crying parishioner, for that matter.

The worst things about this cultural change are not the dramatic examples but the little examples. It’s the little ways in which human interaction has changed. It’s like an acid that’s been poured over human relations, because people no longer feel free to act on their best instincts.

Q: But don’t you need to control people’s worst instincts?

The reason we got in this mess was because we woke up to all sorts of bad values -- racism, gender discrimination, pollution. So we tried to create a system that would be better than the mere humans and that would get rid of bad judgment, and we would make good law replace bad judgment.

Unfortunately, what we ended up doing was also excluding good judgment, so we now have this system where nobody’s in charge of anything.

Not the president. Not the teacher. Not the principal. Not the minister. Not the social worker.

Really key decisions -- daily decisions -- are governed by the blob, this huge bureaucratic blob.

There are bad values, and you need to have accountability mechanisms to hold people accountable when they have bad values. Humans -- again, as Reinhold Niebuhr articulated -- are inherently selfish and weighed down with original sin. But not having humans is worse.

Q: We’ve had interviews with church leaders who say that the higher they go in their organizations, the less power they have.

It’s interesting what happens. We have these movements like the tea party that are arguing that big government is too powerful and we need to just tear it apart. And we’ve got Occupy Wall Street saying that big business is too powerful and we need to control it more.

In fact, the people at the heads of those institutions are largely powerless.

The president can’t approve a new power line, for example, without 10 years of review. The CEO of a big business has to manage it for short-term profits, because otherwise they say he’s breaching his fiduciary duty.

So all of the people in charge, supposedly in charge, are actually responding to this blob, this big legal blob, and they’re not really able to do what they think is right, either.

If you want to restore the fabric of a free culture where people can make a difference, you have to give people the freedom to fulfill their official responsibilities. You have to have a mechanism to hold them accountable, but you have to let them be free within those boundaries.

Most people I know who run institutions complain about powerlessness, and it’s true. They are powerless. Everybody’s hemmed in by the same things.

Q: Can a person within a bureaucracy -- the middle manager or the denominational official -- be innovative and entrepreneurial?

It’s almost impossible to be an entrepreneur and comply with all the law. Most people who are actually doing things today, whether it’s a new social service activity by a church or somebody starting a business, they just do it. They don’t call a lawyer and say, “What are all the potential rules that I might break?”

It’s only as they get bigger and more successful that they find themselves weighed down by legal compliance. It’s impossible to start a business and comply with all the law. You couldn’t do it. You couldn’t know it all. There are 140 million words of federal law. Nobody’s ever read it.

There are thousands of rules in many areas. It’s just crazy -- warning labels, everything. This overlegalized culture is just like a giant wet blanket on the can-do spirit of America.

Some people still go out and do things, because they’re not scared and they want to get something done, but many people don’t.

Q: You’re an insider to the legal system, and yet you are also an innovator and reformer. How did that happen?

First of all, most lawyers I know agree with what I’m doing. If you had spent your life trying to negotiate the legal system on behalf of clients, you’d see how stupid it is all day long.

Also, I’ve always been active in public policy. It probably comes from my father, who was a minister who did a lot of social work in eastern Kentucky. It probably comes out of that sense of involvement in the community.

When I was in college, I worked in the summers at Oak Ridge National Laboratory. I was the gofer for a small group run by a Nobel Prize-winner named Eugene Wigner and ended up publishing a paper on post-nuclear war recovery and worked on other exciting topics like that.

So I’ve always been interested in public policy. I’ve always observed the legal system, not only as a practitioner but as a policy observer, and I was very active in civic affairs in my chosen place of living as an adult, which is New York City. I was chairman of the equivalent of the local zoning board for midtown Manhattan when I was a young lawyer.

At some point in my early 40s, I realized there was something terribly wrong, because people weren’t able to do what they thought was right.

I didn’t actually set out to write books. I just set out to try to understand why it is that people couldn’t do what they thought was right. That led to the writing of “The Death of Common Sense.” I’ve been pursuing it ever since.

Q: How has your faith life affected your work?

I suffer the extreme disability of having been the son of a Presbyterian minister, so that makes me naturally somewhat skeptical about the life within a formal church.

But the basic values of Christianity and service and morality are part of my makeup. That’s how I was raised. It’s important for me personally to try to live by those values and to try to be a leader to enable other people to live by those values.

I think one of the worst things about this legal system is it doesn’t let people readily live their values, do what they think is right and make those kinds of judgments.

I think my faith has been very important.

Q: There are many good people who work in a bureaucratic system -- church, school, health care, whatever -- but they feel powerless to act. Do you have any advice for people who don’t have the ability to step completely outside and become a reformer or an activist?

Ultimately, making these changes will require a popular movement, and so the group that I chair, Common Good, is launching an advocacy campaign called Start Over. We are looking for people in every type of job to become involved in this movement.

I also think it’s useful in daily life to believe that it’s okay to push back. Let’s ask ourselves what the right thing to do is, and then let’s just do it. Pushing back against the blob is not only necessary but is the only way, sometimes, to make a difference.

Q: I wonder if the diversity of our society in all kinds of ways, including religion, means that the legal system has grown up to compensate for the fact that we don’t have a single system of shared values.

We’ve tried to create a legal system that’s inclusive of all values. At one level that’s admirable, but it’s also unworkable as currently constructed, because it creates a system of no values in pursuit of the lowest common denominator.

If you let anybody sue for anything, you basically let the bullies be in charge. It’s a version of anarchy. Anarchy is not freedom. Anarchy is rule by bullies.

If you don’t have structures that allow people to run institutions and say, “These are the values of our institution,” then all of a sudden we’re all paralyzed.

There is diversity in our society, but if you did a survey, 95 percent of Americans would believe in the golden rule. Ninety-five percent of the people would agree probably with the John Rawls formulation that you want to try to create a public sphere that’s fair for everyone, balancing all interests.

I don’t think that the diversity of our country prevents us from making values about what reasonable children’s play is or how people can relate to each other or how we can allocate public resources. I really don’t.

I don’t think people disagree that much on those things.

We can’t avoid values. We can either assert our values deliberately, or we can let other people assert them and force them on us. What we’ve done is the latter, and that’s a terrible way to run a society.