2.1The presumption for the fence
Chesterton's parable, read in Section 4, is often taken to say that a rule deserves the benefit of the doubt until its reason is known. In the study of organisations, the work closest to this presumption is Kaufman's account of red tape in the United States federal government. On his account red tape is mostly the residue of protections that people demanded. One person's red tape is another's safeguard, and so cutting it means deciding whose protection to drop (Kaufman 1977). The maxim and the account share a structure. Both treat the visible burden of a rule as the trace of an invisible benefit. Both shift the question from whether a rule is useful to whom it is useful for. They differ in where they send the reformer. Chesterton sends the reformer to history, to find out how the fence arose. Kaufman's account points instead to the present: cutting a rule means deciding whose protection to drop.
2.2Rules kept after their purposes
The opposing line does not deny that rules once had reasons. It studies what happens to rules after their reasons have gone.
Merton describes officials who come to treat rules as ends in themselves and keep to them after they have stopped serving their purpose, which he calls the displacement of goals; and he describes trained incapacity, in which training that fits one situation unfits people for another (Merton 1940). Merton's account, as summarised here, does not turn on ignorance of a rule's reason; it turns on conduct that continues after the purpose has stopped being served. Chesterton's parable allows for this case when it lists purposes "which are no longer served", but does not dwell on it.
Bozeman defines red tape as rules, regulations and procedures that remain in force and entail a burden of compliance but do not serve the legitimate purposes they were meant to serve. He separates red tape from formalisation, and he separates rules that are dysfunctional from the start, which he calls rule-inception red tape, from rules that become so as circumstances change, which he calls rule-evolved red tape. Whether a rule is red tape, he adds, depends on whose purposes are counted (Bozeman 2000). Bozeman's two kinds sit beside two of the three findings Chesterton's reformer may come back with: that the purposes "were bad purposes", or that they "have since become bad purposes". His last clause sits beside Kaufman's: both make the verdict depend on whose purposes count.
Pierson moves the question from the rule to the path. Institutions persist through increasing returns: once a path is taken, the cost of leaving it rises; timing and sequence matter; and the reasons an institution was made need not be the reasons it lasts (Pierson 2004). This last point cuts against the maxim in a way the others do not. Chesterton's reformer is told to find out how the fence arose. If the fence now stands for reasons other than those for which it was built, a reformer who learns the original reason has learned something true and still not learned why the fence is there.
2.3The exception
A separate debate concerns not the removal of rules but their suspension in a single case. Its most forceful modern statement is legal. In Political Theology, Schmitt holds that the sovereign is the one who decides on the exception, the case no existing norm covers, which no legal norm can settle in advance; a legal order rests on a decision, and the normal situation it presupposes has to be made. He calls the exception a case of extreme peril, a danger to the existence of the state, and says that the sovereign stands outside the normally valid legal order and yet belongs to it (Schmitt 1922). Agamben argues that the state of exception, in which the law is suspended by the law itself, has become a paradigm of government in modern states, and traces it to the Roman iustitium (Agamben 2005).
Carl Schmitt served the Nazi regime from 1933, and critics read his theory of the exception in that light.
What carries across from these theories of the state to a warehouse or a web page is a structural claim: on Schmitt's account, the exception cannot be written into the rule in advance; it belongs to whoever decides. Against that claim stand two lines of work on design. Adler and Borys distinguish formal rules that enable, helping users master the work, showing their reasons and leaving room to repair, from rules that coerce, forcing compliance and hiding their reasons, and they locate the difference in how the rules are designed (Adler and Borys 1996). Ranchordás studies sunset clauses, which make a law lapse at a set date unless it is renewed, and temporary experimental legislation, weighing their promise of review and learning against their costs (Ranchordás 2014). Both suggest that some of what Schmitt reserves for the decider can be built into the rule: its reasons, its room for repair, its end.
A third voice concerns who is blamed. Hood argues that much of the organisation and procedure of government is shaped by the avoidance of blame, through presentational, agency and policy strategies, and that rules and procedures can serve to spread or shift blame (Hood 2011). An exception, once made, has to be answered for by someone, and this article takes from Hood only the point that rules and procedures can move that answering from one place to another.
2.4The two debates side by side
The debates over removal and over exception rarely cite each other, but they turn on a shared pair of questions: what licenses a departure from a rule, and who bears its cost.
| Removing a rule | Breaking a rule once | |
|---|---|---|
| Presumption for the rule | Chesterton: find the reason first; Kaufman: the rule is someone's safeguard | Design work: the rule should show its reasons and its room to repair (Adler and Borys); it may carry its own end date (Ranchordás) |
| Case against the rule | Merton: rules kept as ends; Bozeman: rules that serve no legitimate purpose; Pierson: reasons for lasting differ from reasons for making | Schmitt: the exception cannot be settled in advance and belongs to the decider |
| Who bears the cost | Kaufman and Bozeman: it depends whose protection, whose purposes, count | Hood: rules and procedures spread or shift blame |
Machiavelli does not fit cleanly in any cell, and that is why he is read here. Section 5 argues that chapters VIII, XV and XIX place him across the table: he licenses the exception, and then binds it to a shape in time and to an arrangement of blame. Section 4 argues that Chesterton's paragraph, too, licenses departure as well as preservation, on a condition of knowledge.