Why rules should not be rulers
When we treat rules, however well-intentioned, as unconditional imperatives. we may end up doing more harm than good
When I was younger, so much younger than today, I joined the Institute of Advanced Motorists, a British organization that aims to increase road safety by improving driving standards. Now, like most people, I was convinced that I am a better driver than the mean driver, but at the time I was spending a lot of time in the car and wanted to regain the joy of driving, rather than experience it as a boring chore. So, for several months, every other Sunday, I dutifully went to the group meeting for a check drive with one of the volunteer observers making constructive comments about my driving, gradually improving until the day I was ready for my test with an advanced police class 1 driving instructor.
The most memorable aspect of the test was not that I passed (obviously!), but the advice my assessor gave me. As I was about to overtake a slow vehicle, he told me that it was safe to briefly exceed the prevailing speed limit (providing the circumstances allowed it, of course), and thus reduce the time driving on the wrong side of the road.
The tension between rules and consequences
This was quite the revelation at the time: to hear a police officer tell me that it was OK to break the rule, for safety’s sake. I am not sure either of us realized the significance of the trade-off — for my assessor, it was most likely the most normal thing to do, while I would only much later recognize the inherent tension between deontological and consequentialist (or utilitarian) choices.
This week, I came across two further stories that highlight this contrast between strict adherence to rules and pragmatism. One, told in a Twitter thread, is the story of two lost dogs in the Irish Wicklow mountains. A few weeks ago, a family had gone for a hike in the national park, just south of Dublin, with their two dogs. When they spotted a deer in the distance, the dogs shot off towards it, and failed to return. The owners came back to the same location the next day and discovered the younger of the two dogs in the car park. But despite using a drone and even a basket of unwashed laundry, in the hope that the older dog, a golden retriever named Naoise, would catch the scent, they were unable to find the second one. Two weeks later, two doctors who were hiking in the same area, near the summit noticed an emaciated, cold and very weakened but otherwise unharmed dog. Not without difficulty, the couple carried it 10km over the rugged track, back to their car, and took it home, where she was watered and fed. They then contacted the local animal rescue group and thanks to them, Naoise was soon reunited with her people.
But the story goes on. The two doctors who found the lost dog had been staying in a small hotel at the foot of the mountain, which was offering mental health retreats for health workers in need of a break. But Ireland is under strict lockdown rules under which people must not go further than 5km from their home. This prompted a member of the public to report the couple to the police: not only had they taken a non-essential trip further than the prescription distance from their home, but their hike had also taken them further than that from the hotel.
Technically, the docs that rescued the dog did breach lockdown rules. Arguably, the fact that they rescued a dog should not even be taken into account in judging their actions — they could not have known that this would be the fortunate outcome of their hike. But, one can wonder, if rules — as they should be — are intended to ensure the world is a better place: is the world a better place now the couple is under investigation, and the hotel is closed pending the conclusion of the enquiry?
The other story is less anecdotal and more illustrative of the profound questions that arise around rules and how much power they have over our choices. In a post by Tyler Cowen, I read that Steven Joffe, a medical doctor with a master’s degree in public health and an ethicist at the university of Pennsylvania, declared that he does not believe clinicians “should be lowering their standards of evidence because we’re in a pandemic.” Cowen remarks, “It is stunning to me that a top researcher at an Ivy League school literally cannot think properly about his subject area at all, and furthermore has no compunction admitting this publicly”.
Dr Joffe appears to be not remotely interested in considering the trade-offs that one might encounter in medical decision making. The standards of evidence are what they are, and they should apply, even as the US has seen the total death toll of COVID-19 exceed half a million, and still experiences well over two thousand COVID deaths every day.
Ironically (if I may use that term), it is a foundational principle in healthcare that can help us see why Dr Joffe’s position is problematic. Primum non nocere” — “first do no harm”, linked with the Hippocratic Oath — is the ultimate litmus test by which to evaluate a medical decision. While it is sometimes impossible not to do any harm at all, the principle can reasonably be widened to include “do as little harm as possible”. Can a rule unconditionally ensure that the least possible harm is done? Can we know this without actually explicitly considering the consequences both of maintaining the prevailing standards of evidence, and deviating from them, without, for example, weighing up the statistical ( how large an experiment?) and time ( how long for?) parameters of the process to collect evidence? Can we know this without applying considered judgement? Can we know dogmatic adherence to a rule does the least harm?
Rules, whether they concern the maximum speed on a road, people’s behaviour during a pandemic lockdown, which standards of evidence to be followed, or whatever, did not emerge out of thin air. They are often rooted in a desire to codify, in a given — although rarely explicitly stated — set of circumstances, the right (or wrong) choices in a simple way. Speed limits, movement restrictions during a pandemic, and standards of evidence all fit that description.
But very few, if any, rules will fulfil this noble intent unconditionally, irrespective of the context and the circumstances. It is widely assumed that the expression “the exception that proves the rule” is ironic — by definition, an exception cannot provide proof that a rule is universally valid. However, it is a translation of the first part of a legal phrase that goes back to Cicero, a lawyer and scholar in ancient Rome. The full phrase is “exceptio probat regulam in casibus non exceptis”, or “the exception proves the rule, in cases not excepted”: the existence of an exception proves that there is a rule in other circumstances.
If every rule has exceptions that prove it, we should reject the idea that they apply universally, and challenge anyone who claims otherwise to argue their case that either the rule does apply without any exceptions, or that the present circumstances do not provide an exception. We should not treat rules as instructions that need to be followed blindly, but use our judgement to verify that they will meet their intended purposes in the present circumstances.
We should treat rules not as dictates but as guidance, and not allow them to be rulers of our lives.
Originally published at http://koenfucius.wordpress.com on February 26, 2021.
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