The Art of Judgement

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July/August 2001

The Art of Judgement

By William Galston

The Lost Art of Drawing the Line

By Philip Howard
Random House

Click on the title to buy the book
In The Lost Art of Drawing the Line, Philip Howard passionately urges a thesis with which I (and I suspect many readers of this magazine) agree. Practical endeavors cannot succeed without the exercise of individual judgment, which cannot be reduced to abstract rules and which involves instinct and personal perceptions. Because judgment is unavoidable, every institution needs leeway and wiggle room. And because judgment lubricates social life, the legal system is not the right mechanism for most disputes.

Ignoring these truths, Howard argues, produces no end of mischief in modern America. Eliminating discretion in the attempt to minimize the risk of abusive authority leads to institutional dysfunction. Bureaucracies that substitute elaborate networks of rules for the intangibles of individual judgment deaden the human spirit and subvert the common good. The growing propensity to transform the normal risks and conflicts of everyday life into formal legal proceedings leads to both risk-aversion and ridiculous overreaction. To avoid lawsuits, city officials remove safe equipment from playground. Meanwhile, parents seek legal redress for sandbox disputes between toddlers.

Howard is right to suggest that civil service rules and union contracts can make it, for example, all but impossible to fire incompetent workers. He is also right to suggest that our legal system is bombarded with frivolous claims that can have a chilling effect on the pursuit of the common good. Howard proposes that institutional leaders such as public school principals should be given more latitude to use their own judgment and be held accountable for the results. And he suggests that judges use the authority they already have to throw meritless claims out of court: "Let the jury decide" is not an acceptable principle of impartial justice if it turns the rule of law into a lottery that discourages common-sense solutions.

It would be a pity if Howard's maddening presentation of his argument discourages readers from considering it seriously. His characteristic mode of expression is repetitive and hyperbolic. He evidently regards anecdotes and quotations as adequate supporting evidence for broad social generalizations. Many of his arguments are self-contradictory; others are only loosely related to his core thesis. The sound judgment Howard praises requires balance and fairness, qualities this book conspicuously lacks.

Let me offer some examples. Howard claims that "Government has failed for so long that the public accepts failure as the status quo." Both halves of this claim are tendentious at best. Some aspects of government are succeeding pretty well, while others are doing badly. Public opinion surveys suggest that the public can tell the difference and that far from accepting failure, the public favors reform--the bolder the better--where it is needed.

Another example: Howard claims that in our misguided quest for neutral procedures, Americans "no longer acknowledge that society needs rules which reflect a deliberate choice about what should be encouraged or discouraged." That would be serious, if true. But think for a minute: our laws encode a myriad of moral choices--against racism and sexism, in favor of environmental protection, public safety, and the work ethic. Today's laws are no more neutral than those of past generations. How could they be? The constitution of society through law is an inherently moral enterprise. The content of public morality promoted through public law will change over time, of course, and this change may be applauded or condemned. That's the real fight.

A third example: Howard characterizes the U.S. system of public education as a near-total failure. Educational achievement is "sliding." Teachers are "giving up." Rather than modeling and teaching basic norms of civility and social morality, our schools have a culture that "more closely resembles that of a penal institution." While the status quo is clearly unacceptable, Howard's depiction of our educational system is feverishly overwrought and in some respects demonstrably false. It is simply not true, for example, that educational achievement is sliding; after falling from the late 1960s to the early 1980s, it has improved a bit over the two past decades. This is no cause for complacency. The improvement has been too little and too slow, and some parts of the system haven't improved at all. Howard's dyspeptic description is not far off for the worst twenty percent of our schools, disproportionately clustered in our nation's inner cities. But to confuse those schools with those in the suburbs (for example, to equate Washington DC's schools with Montgomery County) is to offer a misleading diagnosis of the underlying problems.

Nor do Howard's educational prescriptions inspire confidence. He praises the late Albert Shanker for putting more pressure on teachers and students to boost achievement. In virtually the same breath, he damns the movement to develop explicit standards in core academic subjects and tests keyed to those standards: if something can be measured, he informs us, it isn't very important. Howard seems unaware that Shanker was a passionate supporter of the standards movement, which he regarded as the most effective way of pressuring the system to improve. Nor does Howard demonstrate any knowledge of the evidence accumulating in a number of states as well as other advanced industrialized countries that carefully considered systems of academic standards backed by rigorous tests can help improve academic attainment.

The problems with Howard's argument extend well beyond his habitual hyperbole. Consider his core recommendation that we replace the current system of bureaucratic rules with a new strategy of discretion plus accountability. In principle, anyway, citizens can hold their elected officials accountable in ways that employees of bureaucratic organizations are not. So if school principals or civil service managers act arbitrarily, what recourse will be available to wronged employees? The most honest answer is that an increase in the incidence of unfairness to individuals is the price we must pay for institutions that more effectively pursue the common good. It is understandable, to say the least, that these individuals will take a different view. And at some point, the rest of us will become morally uncomfortable as well. Pursuing the common good and protecting individuals against injustice are both genuine goods that can come into conflict. We need a system that strikes a sustainable balance between them-not a dramatic lurch from the current extreme to its opposite.

Howard occasionally acknowledges what seems to me to be the deeper truth of the matter: the current focus on the elimination of risks and unfairness to individuals, and on the enforcement of a proliferating panoply of rights, is not something that organized special interests (or self-interested individuals) have foisted on an unwilling people. Rather, this emphasis reflects a pervasive shift in our public culture-for example, from seeing risk-taking as a positive element in the moral education of children to regarding it as an intolerable threat to children's well being. It is hardly accidental that our legal and regulatory systems have undergone corresponding changes.

Howard is right to suggest that for the most part, law cannot be effective unless it reflects the mores of the community. He is wrong to suppose that the current legal practices (of citizens and judges alike) fail to do so. Howard's real quarrel is with the dominant moral sentiments of the American people. Our institutions will continue to limp along until the people decide that the social cost of those sentiments is unacceptably high.

William A. Galston is a Professor at the Maryland School of Public Affairs .

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