Last month, The Atlantic featured an essay by Philip K. Howard with suggestions about how to fix the broken federal bureaucracy. Howard thinks that the way to fix government at the most fundamental level is to replace specific legal rules with general legal principles:
What’s the alternative? Put humans back in charge. Law should generally be an open framework, mainly principles and goals, leaving room for responsible people to make decisions and be held accountable for results. Law based on principles leaves room for the decision-maker always to act on this question: What’s the right thing to do here?
Howard’s argument is superficially attractive. He correctly identifies the red-tape complexity of regulations as a source of wasted effort and irrationality. He also proposes commonsense-type reforms, ranging from reducing the number of regulations to scaling back rules that eliminate accountability for government incompetence.
But he doesn’t recommend that regulatory powers be scaled back; just that detailed laws be replaced by principles that would, in his view, foster responsibility and good judgment. This is problematic.