When a law grants discretion to public servants, it is always harmful. Wishful thinking is attracted to the idea of officials having discretion to ‘decide what is best in the circumstances.’ It conjures up images of a benevolent Solomon fairly and appropriately deciding the best outcome in every case. Yet the reality is quite different. Humans are by nature capricious and vindictive. Only when constrained by the need to make a profit, hold down a job, keep employees, maintain friends, or avoid being overruled by an appellate court, or other like strictures, do we control our whims and spite.
Laws granting discretion to bureaucrats are morally wrong because they grant one person arbitrary rule over another. Government officials should instead be like drones, performing exactly as the law dictates down to the smallest detail. If this makes them inefficient, then the cure is not to grant them wider discretion, but to reduce their authority and leave more areas of life to private individuals to run as they see fit. It is not good enough for the law to grant a policeman the power to ‘direct traffic and parking’—that is arbitrary power. The proper mandate should be to ‘direct traffic and parking in accordance with parking and traffic regulations.’ And those regulations should be minutely particularized to clarify exactly what action is prevented by the law. Laws must be drafted so that if a hundred judges separately examined the proven facts and considered the law, they would each arrive at the same verdict.
Laws that apply only to a single strip of houses reflect efforts by local governments to give a legal veneer to arbitrary control of how people live their lives. Even if such laws are passed by the state legislature, they are still a form of tyranny. Government must be conducted through standing laws that are, to the greatest degree possible, general in application and are not customized to achieve specific outcomes for specific people.
Some argue that planning is a subject too vast to be precisely defined by the law, that discretion must exist to decide development applications on a case-by-case basis. Yet the design of a computer chip is vastly more complex than building a house. However, software exists which has embedded all the rules of what is possible for the manufacturer. Engineers use the software to design whatever layout they want, and the software automatically keeps them within the bounds of what can be manufactured. There is no reason why planning codes cannot be reduced to set parameters capable of being built into certified software. This would allow people to design and private certifiers to sign off on buildings—without ever involving the government.
