Flexible Government Is Good Government

“When to allow discretion on the part of public servants is not an easy question to answer.”

In my most recent article for Merion West, I argued for stronger consistency in laws and enforcement. I argued that, since laws are written and enforced by human beings, with all the flaws and biases they naturally possess, the best way to minimize unfair treatment is to keep laws simple and to avoid variety in their enforcement. It would also help if there were fewer laws to enforce. The job of government should be to keep citizens secure and healthy, not to make some people’s lives more comfortable and convenient by restricting the freedom of others. At a time when Americans frequently hate each other’s guts, this is probably our best chance for coexisting within the same nation-state.

While I still would rather government generally behave this way, I do not believe discretion in government is always bad. Systems of protection and regulation can always break down, as can any system whose designers are human. Therefore, there will be times when the best option for a public servant is to exercise discretion and judgment, to carry out the spirit of his service rather than following the letter of the law.

This need not be an exercise of “common sense.” That is an overrated concept—and not a very useful one in a large, sprawling, decentralized, polarized country with an ever-growing and increasingly diverse population, a country where the definitions of “common sense,” “freedom,” “justice,” and other values are increasingly hard for people to agree on. It does mean, however, that if an official realizes that adhering strictly to normal procedures will cause far more damage than benefit, he should be willing to deviate from them.