In 2014, I found myself driving a rented car around the island of Samoa. Not American Samoa, independent Samoa (formerly called Western Samoa). If you’ve never been to Samoa, please stay away. It’s one of the few remaining (accessible) tropical paradises that hasn’t been assimilated and “sanitized” by the tourism-industrial complex. In Samoa there are no mega-resorts. No TSA. No Walmart. We rented our car from a family that managed a fleet of maybe half a dozen vehicles.

While focusing intently on driving on the left side of the road, I rounded a corner and was halted by a crew working on the road surface. Road construction isn’t noteworthy to anyone who spends any time behind the wheel. What was interesting, however, was the manner in which I was instructed to stop. One particularly large member of the crew (these were all Samoans, but this guy was big even by that standard), was standing in the roadway. He looked directly at me (me personally, not my car) as I approached. Then, when he was sure that we had established eye contact, he raised his hand toward me and visually commanded me to stop. Think about that. He told me to stop my car.

Think about the last time you had to stop for road construction. If you were in the U.S. I can say with 99% certainty that you were directed by a sign with a human accessory (in the vernacular, a “flagger”). The extent of that human’s responsibility was limited to actuating the sign and coordinating with the matching sign at the opposite end of the work zone. As a driver, your interaction was with the stop sign, not the person. Ultimately, however, your action was dictated by a policy. The sign was a tool to indicate the will of the policy. A sign doesn’t determine the policy, it just alerts motorists to which policy is currently in effect (the “stop” policy or the “go” policy). The human holding the sign is an accessory—a dongle.

The giant Samoan wasn’t a flagger by vocation—It’s unlikely that the road crew implemented much specialization within their operation. And it’s even less likely, even if they did specialize, that the largest man would be assigned a communication role instead of a physically demanding one suited to his superior size and strength. The man stopping motorists did so because his friends were in the road ahead and he didn’t want them to get run over by a scrawny foreigner in a rusty sedan. He decided, given the conditions ahead (the road blocked by maintenance vehicles and personnel), that the best course of action was to stop traffic. And then he did it by personally interacting with approaching drivers. No sign. No policy. No measured “safe” zone or distance or speed.

We Americans love protocol. Protocol provides consistency, predictability, and liability when something goes wrong. Systems and repeatable processes have provided the framework for our country’s previous generations to move beyond ragged subsistence and give birth to the massively wealthy middle class that defines our nation. Given its central role in the industrial revolution, it’s no wonder that protocol now receives deference that was once reserved for religious dogma. And it’s just so comfortable to delegate our decision making to a machine.

It’s also very convenient to abdicate personal responsibility to an abstract system.

The American version of protocol has come to provide, above all else, a deterministic solution for assigning blame and liability. What was once a technical innovation that enabled manufacturing products of a consistent (and hopefully high) quality has been bastardized to eliminate personal responsibility. We no longer have laws on the books that speak in general terms like “don’t defraud your neighbor.” Instead, we’ve codified everything we can get our hands on. This didn’t happen all at once or at the request of the populace. It occurred incrementally in response to an unceasing flood of self-interested abusers of the system—crooks that predictably claimed that since the law didn’t specifically identify their precise behavior, they couldn’t be held liable. Subsequently, you’re allowed to defraud your neighbor as long as you’re the first to employ your specific tactics and the law hasn’t been written yet to address your particular flavor of malfeasance.

In contrast to the Samoan road hazard un-protocol, a flagger in the US exposes their employer to liability if a driver is harmed, unless the flagger acted according to the strictest interpretation of the underlying policy. In effect, the system demands that the flagger be nothing more than a meat-based flag appendage. In the case of road construction safety, we’ve piled 100% of the responsibility for outcomes onto a web of policies and protocols. And rule #1 in our version of decision-making-by-protocol is that any person that doesn’t follow protocol is responsible for all negative outcomes. (I can see how this may have started out as a mechanism to force people to adhere rigidly to protocol, but it has been badly abused by counterparts of countless lawsuits.)

Basing our legal framework (and, increasingly, our social one) on a body of very specific laws and precedents has two main downsides. First, it makes us stupid. Instead of collecting data, interpreting variables, and coming to a reasonable conclusion based on the reality around us, we are conditioned to to simply look up the right answer in a canonical text. The question we’re asking is no longer “What’s the best course of action?” but instead “What action does policy dictate?” Optimal outcomes are replaced by prescribed actions that may or may not approximate the ideal results. Risk taking is curbed and the march of innovation is, in the best case, hampered or, in the worst case, punished.

Second, under the American Protocol System, when we misbehave and harm someone, we outsource as much of our personal culpability as we can to the system. And it’s the system’s responsibility to make the injured person whole. If you need proof that America works this way, look at all the knee-jerk legislation that gets rushed through our governing bodies every time a new tragedy occurs. If a person is fully responsible for their actions, you punish the person and that’s the end of it. The pressure to change the system (based on a single data point!) is a by-product of the shared belief that the system itself is principally to blame.

When we change the system to address specific behaviors, we collectively bear the costs of modifying our behavior and of enforcing the new policy. On top of that, we also share the burden of an increasingly complex legal environment. All so that a few terrible people can lie, cheat, and steal with (at least temporary) legal protection. In a weird twist of irony, the system of laws that we thought was keeping everyone behaving nicely, is the mechanism by which countless crooks escape punishment for their naughty behavior.

This model of shared expense/isolated benefit isn’t new. In other fields it’s called insurance (coincidentally, using “policies”). The difference here is that your car and your body (two commonly-insured entities) are subject to all the randomness the universe can muster. But you alone can determine with near certainty whether or not you’ll ever need a policy loophole to squirm out of a tight legal spot.

By allowing our legal system to become rigidly codified to the point that every behavior + context combination can programmatically be assigned a lawful/unlawful status, we’ve effectively purchased an insurance policy against some portion of personal responsibility. This complex system has costs, though. You and everyone around you pay into a pool to limit the scope of your personal responsibility, just like you do with auto or health insurance. It’s insurance that we all pay into, simply by being members of society. Unfortunately, the policy we’re stuck making payments on disproportionately benefits the worst members of society.

brnt 2021-06-22

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