Rules are everywhere. Given not only the immense variety of rules, but also the great variety of registers through which rules might be understood, one might well ask: is a historical account of rules even possible? In Rules: A Short History of What We Live By, the historian of science Lorraine Daston takes on this daunting task.
Even as she restricts herself largely to the Euro-American world, Daston ranges across a truly dazzling array of rules: rules of conduct in medieval monasteries; the forms of ancient and modern algorithms; the changing structure of recipes in cookbooks; sanitary and traffic regulations in early modern cities such as Amsterdam, London and Paris; the changing rules governing work; the rules of language and grammar; the relationship between law and equity; the emergence of ideas of natural law and laws of nature; the career of casuistical reasoning; notions of sovereign exceptions in political theory; and a great deal more. This is in itself a considerable scholarly achievement.
But Daston offers a great deal more: she advances a broad and suggestive account of historical change between pre-modern and modern rules. According to Daston, pre-modern rules consisted of what she calls rules-as-models. One began with a model or a case, something recognized as particular, specific, and rooted in context, and then used it to order something also recognized as particular, specific, and rooted in context. The application of rules-as models to new problems and situations thus entailed a move from particular to particular, bringing with it a sensitivity to context, an awareness of exceptions, and an acceptance of discretion in applying rules.
Pre-modern rules were “thick” rules, incorporating into their forms the lived realities of their origins and applications. By contrast, modern rules are rigid rules, devoid of exceptions, limits, and qualifications, insensitive to contexts and specificities, embracing the pretention that they can be applied to anything and everything. The realm to which modern rules are applied is a kind of passive material, something to which rules are applied, rather than a universe of specific cases that can speak back to the rules and modify their application through discussion, judgment, and the exercise of discretion.
Indeed, when it comes to modern rules, the discretion that was inevitably part of the application of pre-modern rules-as-models tends to be viewed with suspicion as something to be excised or at least minimized. Modern rules are “thin” rules. For legal scholars, if they keep in mind that the analogy is rough and inexact, a helpful way of thinking about the distinction between “thick” versus “thin” rules might be the distinction between the common law and codes.
Daston is far too sophisticated a historian to insist on any clean historical transition from “thick” rules to “thin” ones. Indeed, she argues that her object in tracing the historical transition from “thick” rules to “thin” ones is not only to tell us a story of change over time. Her object is at least as much to offer an account of when “thick” or “thin” rules are likely to arise and predominate. As she puts it:
This book has traced a historical arc that partially justifies the distinction between pre-modern and modern rules, but only partially.
The chronological terms pre-modern and modern distract from the underlying pre-conditions of stability and standardization that are more domain- than period-specific. Wherever pockets of predictability and uniformity emerge, thick rules can be slimmed down into thin rules; flexible rules (as all thick rules must be) can stiffen into rigid ones” (P. 266; emphasis in original).
In other words, when man creates “pockets of predictability and uniformity,” “thin” rules predominate. Where predictability and uniformity are more elusive, “thick” rules are likely to do so.
According to Daston, the modern West has generated (or at least entertains the conceit that it has generated) more and more “pockets of predictability and uniformity.” As a result, it has sidelined “thick” rules, with their sensitivity to context and their appeal to discretion, in favor of “thin” ones. For Daston, this is an undesirable development. This is because hers is not simply a historical account of how “thick” rules give way to “thin” ones, or even an account of when “thick” and “thin” rules are likely to predominate, but ultimately an expression of a strong preference for “thick” rules.
Daston offers several reasons for her preference. First, the zones of stability in which “thin” rules work well are, she argues, inevitably fragile. Their failure—and our ensuing lapse into conditions of instability and uncertainty—mean that we inevitably turn to “thick” rules. Second, “thick” rules seem to be better than “thin” ones because they encourage human creativity and thought. Because they keep us shuttling between specificities, “thick” rules keep us alert, compelling us to be ever awake to the multiple possibilities they present. Third, Daston argues that “thick” rules are simply more efficient than “thin” ones. Thus: “[F]ollowing models remains a more efficient and flexible way to learn than following explicit rules” (P. 272).
Finally, in Daston’s account, we get occasional flashes that we might even be “hardwired” for “thick” rules. This comes out, for instance, in Daston’s discussion of the frequently doomed attempt to rationalize spelling rules. Why is it, she asks, that there has been such vociferous opposition to getting rid of older spelling rules laden with exceptions and idiosyncrasies and replacing them with “thin” ones that better track sounds? Daston’s response: “Cognitive psychologist Stanislas Dehaene argues that learning to read colonizes parts of the brain originally devoted to facial recognition” (P. 206). In other words, our brains apprehend words in a holistic way, as “thick” specificities irreducible to “thin” rules.
One does not need to share all of Daston’s investments in “thick” rules to admire (and learn from) her account of rules-as-models. We are always in need of more ways of doing things, better ways of thinking through our many problems. To the extent that history can furnish us with models for how to think and work differently, Daston’s rendering of rules-as-models as thinking from particulars to particulars is brilliant, intriguing, and generative. Why not see early modern casuistry anew and recognize its usefulness for our world?
That said, one could raise a few questions about Daston’s account.
To begin with, it would be interesting to know whether the premodern purveyors of “thick” rules themselves viewed them the way Daston does. Were “thick” rules seen as “thick” or just as rules? Were they viewed as better ways of thinking? Was there a sense that they were more efficient? If so, relative to what? It might be impossible to tell in many instances. But I suspect that it is likely that the appreciation of “thick” rules qua “thick” rules is something that only becomes available in a modern world in which a contrast with “thin” rules becomes ever more pronounced. There are no “thick” rules without “thin” ones.
To the extent that Daston’s appreciation of “thick” rules only makes sense relative to “thin” rules, her account can be further complicated on the ground that many of her particular claims about “thick” rules—about their inevitability, their rootedness in our cognition, their generative powers, their superior efficiency—might be made (and have been made) with just as much fluency and energy and enthusiasm about “thin” rules. For Anglo-American lawyers, the endless nineteenth-century debates between codifiers and common lawyers are a case in point. Daston’s account is a tilted in one direction, but it could just as well have been tilted in another.
Given that the very same attributes can be attached as often to “thick” as to “thin” rules, we might come up with a more nuanced picture of “thin” rules. This is not merely because the modern world of “thin” rules might have struck its rationalizing partisans as a salutary step away from the “thick” rule-bound world of royal favors and papal indulgences. In Daston’s account, “thin” rules make sense in zones of uniformity and predictability (which, she argues, inevitably fail us). Where uniformity and predictability are missing, she argues, we need “thick” rules, we need to work from particularity to particularity.
But precisely the opposite might be true. The world of the rule-as-model that Daston celebrates was a relatively circumscribed world in which the rule-as-model worked best when its possible “applications” were not terribly different from it to begin with. This was, ultimately, a world of uniformity and predictability. The pious abbot in the medieval monastery could be a model for other monks. The master craftsman’s world of highly specific, exception-laden techniques rested on presumptions that his apprentices shared his background and could understand the interplay of rule and exception. But in the modern world, with its breaking down of the boundaries of the local and familiar, rules-as-models might have worked less well. Rules-as-models might not have translated across far-flung territories and societies. What was needed was, precisely, the “thin” rule, the rule that could travel.
This was not necessarily a rule that disdained context, as Daston suggests, but rather a rule designed for a world of many contexts, where the old rules-as-models might not serve. There is a lesson here in the fate of the common law in the Anglo-American world around 1900. When it came to substantive law, common lawyerly precedent-based jurisprudence—a set of “thick” rules, if there ever was one—ceded to a set of thinner “procedural” rules so that substantive law-making became the preserve of legislatures and administrative agencies in the twentieth century. But this was because common law judges were simply not up to the task of judging in a complex world in which the common law’s individual-centered, fault-based doctrines were increasingly inapposite. In a wider and more complicated world, “thick” rules could simply not do the job.
The point of my observation is that “thin” rules might be as useful and efficient—perhaps even as worthy of celebration and romantic attachment—as “thick” ones. Daston will agree that context should guide us.
