Ronald W. Dworkin
In criticizing government’s obsession with adhering to rules, Chief Justice John Roberts once wrote in an opinion: “The government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.” Justice Roberts was describing a problem that has dogged society for centuries. Every human community is compelled for the sake of self-preservation to have rules. Failing to consistently enforce those rules risks pushing society toward tyranny or anarchy. At the same time, some rules do not apply in every situation. Even a rule of justice, if applied too strictly, can lead to injustice. So the rule must be bent. But when? And who decides?
Societies vary in how they deal with this problem. This is the insight of scholar Lorraine Daston’s excellent new book Rules: A Short History of What We Live By. Although not beach reading by any stretch, her book thoroughly explains how we arrived at our own attitude toward rules and manage their limitations.
Daston begins by making a distinction between what she calls “thick rules” and “thin rules.” Thick rules are rules that require experience to be applied accurately. They come with exceptions and caveats. Rules of strategy in chess and war are examples. By contrast, thin rules are explicit and have clear boundaries. They are meant to apply to all situations within those boundaries. They have no need for examples, exceptions, or warnings; nor do they require experience or wisdom to be applied. Straightforward and general, thin rules are presumed to be universal and work in every case. Rules of geometry and algebra are examples.
According to Daston, thick rules predominated in Europe well into the medieval era. For instance, an abbot in a seventh-century monastery applying the Rule of Saint Benedict had considerable discretion in how to do so. Indeed, discretion was built into the Rule; the Rule could not be correctly applied without it. Discretion comes from the Latin word discretio, which means “discrimination or distinction of one thing from another.” Context is key. Only after understanding the particulars of a case could the abbot decide whether to apply the Rule. This required judgment, wisdom, and the ability to reason by analogy.
Change came during the early modern period, says Daston, when “thinner” rules began to prevail. The trend first became evident in the mechanical arts. Thin rules lessened the chance of bad outcomes. The new rules still demanded experience, judgment, and discretion to be applied correctly, but they systematized activity to some degree and m-ade decision-making more uniform and predictable.
Thin rules multiplied further with urbanization. Daston discusses three sets of rules in particular: sumptuary laws governing dress, rules of traffic, and rules for spelling and grammar. The rules in each group had different purposes, but the rules themselves were meant to apply at all times and without exceptions. Unlike thick rules, they were never formulated with an eye toward adjustment.
Sumptuary rules failed miserably. Grammar and spelling rules succeeded wildly, as the dictionary sitting on every writer’s bookshelf to this day attests. Either way, thin rules were the wave of the future.
Daston argues that modern urban life, especially life organized around the emerging capitalist system, demanded a degree of predictability, so that even people be made somewhat predictable, or at least calculable. Without traffic laws, for instance, the sudden explosion in the number of street carriages being driven in major cities would have led to chaos. Only precise, straightforward, non-negotiable (at least in theory) thin rules, applicable in all cases, could provide the order and stability needed for large-scale urban life to survive, and for capitalism to thrive.
Virtue or Rules?
Daston’s tie between capitalism and the rise of thin rules makes intuitive sense. It also answers a question I’ve often wondered about, although one Daston doesn’t actually address. A common observation made about West and East (at least the traditional East) is that in the latter (e.g., ancient China), it was “the man and not the law” that mattered. A ruler’s pronouncement mattered more than the law. Conversely, in the West, it was “the law and not the man” that mattered. Rulers in the West deferred more to the law.
At first glance, the proverbial difference makes the West seem more “advanced” culturally. But not so fast. In ancient China, for example, laws were mostly penal and administrative. Subjects did not look to law for protection; the law was not their friend. Given that rulers had such wide latitude when applying the law, the best hope for vulnerable subjects was for rulers to possess wisdom and character—hence, the Confucian system for training officials in virtue and ethics that lasted over two thousand years.
In the West, we gave up on expecting our political leaders to be virtuous and ethical a long time ago. Our leaders rarely read Aris-totle—sort of the Western counterpart to Confucius. Nor do we expect our leaders to be wise. On the contrary, when our leaders say virtuous things, we immediately suspect them of hypocrisy or some self-serving ruse. We rely not on the wisdom and character of our officials to protect us but, rather, on thin rules. In the West, the law is sovereign, not politicians. The rise of explicit, non-bending, universally applicable rules is not exactly a compliment on Western character development.
In any event, capitalism arrived early in the West. The system presumes people are self-interested and self-aggrandizing. Indeed, it is individual selfishness amassed collectively that creates wealth for all. Capitalism’s presumption about people may explain why the increasingly urban, but non-capitalist, East kept putting its hope in the character of its rulers than in the promise of thin rules.
The next stage in the rise of thin rules, according to Daston, comes in the form of modern natural law. Traditional natural law drew from two conflicting currents: the belief in human reason guided by the divine, and that pondered virtue, and the belief in human instincts, such as the desire to procreate. Daston says modern natural law drew from two modifications of these currents: first, a belief in a narrower version of human reason, without the divine, that calculated the best way forward to satisfy one’s selfish desires without getting in trouble with the government; and, second, a belief in human instincts that focused more on how to survive in the state of nature. It was a new formula of “rationality and animality,” she says. Modern natural law aspired to stabilize a world of selfish, acquisitive individuals prone to war and empire through thin rules that deduced “maximal consequences from minimal principle.” The new rules were looked upon as universally valid, applicable to all peoples, and eternal, since we all came out of the state of nature and presumably none of us would want to go back.
More than coincidentally, says Daston, the new rules of natural law appeared around the same time as the new scientific “laws of nature.” First, Descartes coined the phrase. Then came Newton’s discovery of the laws of gravitation, which applied not only to the earth but to all celestial bodies. Then came Leibniz’s proc-lamation that all such laws were universal and inexorable, beyond even God’s ability to affect. These were very thin rules indeed.
Natural law and the laws of nature evolved in parallel. True, the two were conceived differently. The laws of nature emerged from observations of the planets, while the natural laws governing society grew out of thought experiments about the state of nature. But both sets of laws were the products of people thinking big. Henceforth, unbending fundamental rules, forever constant, drawn from universal human nature and uniform physical nature, and compelled by necessity, would govern all people and all things at all times.
More steps follow, including Kant’s categorical imperative that creates a universal law of practical reason telling all rational beings how to act. Yet all these steps lead inexorably to today’s recognizable state of affairs, where thin rules and regulations, vast in number and great in reach, dominate our lives. Government officials staff large bureaucracies and fear deviating from these universal and inflexible rules. They are accused of being despotic when they do, unless, of course, everything turns out for the best, in which case they are praised. But no one knows how things will turn out in advance—hence the dilemma of rules and the unease people feel about making exceptions to them.
Trial and Error
As a practicing anesthesiologist, I deal with the problem of rules all the time. My specialty comes with thin rules that comprise the standard of care. Violating them risks a lawsuit if I get a bad outcome. But sometimes the rules make no sense. For example, a rule says not to anesthetize a person for elective surgery if they have had a heart attack within the last six months. But what if it’s been five months and three weeks, and the patient needs semi-urgent surgery, meaning surgery that can be postponed but not without some risk? How do you balance the risk against the rule?
Such cases put me in a difficult position. Supposedly universal and applicable at all times, the rules do not actually say, “Thou shalt not!” or “It is forbidden.” At the same time, the rules never say, “In some cases it is permissible.” Even if they did, who would I ask for permission? Before difficult cases I have sometimes stared at the rule-filled books on my department’s shelf and asked this question, seeking guidance. No voice has ever answered. Sometimes I imagine the books teasing me, “The rules give permission.”
As a doctor, I feel permanently bound to the rules. They own me; I serve them. It’s as if the rules are alive. Then again, when patients ask doctors for an opinion, doctors never reply, “Why are you asking me? Ask the rule.” Patients expect doctors to know more than the rules. It is why, when expert doctors stroll through a hospital with nothing in their hands, laypeople make way for them, or at least show respect for them, but when doctors still in training walk through a hospital with thick volumes of rules under their arms, few people dream of making way for them. The rules do not possess the magic substance that makes laypeople stand at attention, for if the rules did possess it, it would have made its presence felt under the arms of amateur doctors. Laypeople know better. They know that the best doctor is not a slave to the rules but their master. It is the doctor’s job to know when to apply the rules and when to bend them.
In medical malpractice cases, jurors generally understand that medical decisions are sometimes 51-49, and that in the real world there are trade-offs. So long as doctors carefully document their thinking behind a decision, they are relatively safe. But citizens are less likely to give civil servants the benefit of the doubt. Starting in the seventeenth century, says Daston, making exceptions to rules was increasingly frowned upon, especially in government. The range and consequences of abuse were simply too great.
In the twentieth century, political theorist Carl Schmitt defined sovereignty as the power to decide on the exception to the rule, and that the exception “cannot be codified in the existing legal order.” In the modern era, the exception is too dangerous. Even ancient rulers, at least, imagined themselves answerable to natural law or to God when making an exception, while those on the receiving end of a ruler’s decision believed the same thing. A force higher than the ruler sanctified his decision to make an exception.
Modern government officials who make exceptions are answerable to no one, in neither their eyes nor the eyes of citizens living under them. At best, officials draw from personal experience or their particular education to make an exception. At such times they imagine themselves wise.
At worst, they act out of pique. Either way, from the perspective of the modern legal order, their behavior is purely capricious, which is how society sees it too. It is why the exception, said Schmitt, risks putting society on the road to totalitarianism.
If citizens trusted civil servants the way patients trusted their doctors, then exception-making and rule-stretching might become more acceptable. But the U.S. was built on the people’s distrust of government. No such accommodation will happen. In one paragraph Daston notes that lawyers and accountants increasingly staff government agencies to interpret thin rules and make for more judicious applications. But curiously, having just explained the risks entailed, she fails to mention the danger this poses. Just recently, for example, the courts blocked a CDC ploy to use the pandemic to excuse people from having to pay their monthly rent. In another example, the Supreme Court blocked an EPA ploy meant to stretch an environmental rule on wetlands to gain control over any piece of land sitting next to a rain puddle.
The problem of when and how to apply thin rules is not a problem. It is a hard fact of life! Nothing can be done about it. This is what happens after more than a century of Western culture putting so little faith in training people’s character, having concluded such training to be neither feasible nor even desirable, as people are presumed to be self-interested to their core, and, besides, they have their autonomy to protect.
Still, rule-bending must occur, otherwise society cannot function. Daston wisely observes that our refusal to teach discretion, judgment, and wisdom has created a vacuum in which intuition, instinct, and inspiration are increasingly relied upon to bend rules. The latter qualities are more opaque and unpredictable. Sometimes they are just a cover for corruption. Reliance on them risks making us even less safe than when simply applying rules without exception.
Perhaps the only way in this environment to get justice from rules is through trial and error, by refining or replacing bad rules through legislation, so that each time the rules make a little more sense. Keeping bad rules on the books and ignoring them is not an option, as doing so makes people respect all the rules less.
Using discretion is also not an option, for reasons Daston describes. Hence the old dictum (I think coined by Lincoln) that the best way to handle a bad rule is to repeal it outright or . . . enforce it strictly. The latter will create such a public uproar that the bad rule eventually does get repealed. That is how progress occurs in a society wedded to thin rules.
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