Rules, Laws and Norms as both the Bedrock and Soil of Society

The expression “Rules are mostly made to be broken and are too often for the lazy to hide behind,” has been attributed to General Douglas MacArthur. Usually one reads or hears it simply as “rules are made to be broken” or “rules are meant to be broken.” I find all three versions troubling if not mistaken, with the latter two far simpler versions nonsensical or incoherent. Of course we often can find reason or justification in a circumstance or situation for modifying, bending, or even breaking a rule, but rule-following in such cases remains the norm while rule-breaking is the occasional exception to the rule. We may at the same time find sufficient reason to follow a rule (or set of rules) even if we’ve come to believe, over time, that this rule, at least in our case, and for this or that personal reason, is too inhibiting, constraining, or stifling, and yet there may be sufficient warrant to keep abiding by the rule (or rules) because others do not share our assessment of its shortcomings (or may not understand the logic of our proffered reasons), and thus all things considered it may be best to keep following the rule in question rather than somehow contribute to its possible erosion or to scepticism about its value among people who have not (or not yet) voluntarily and autonomously arrive(d) at a same or similar judgment or conclusion. We can follow rules habitually, accidentally, scrupulously, obsessively, even spontaneously or mindlessly. But it does not seem either possible (i.e. without contradiction) or coherent to endorse the proposition that “rules are made to be broken,” while engaging routinely, as we do, in rule-following. Of course there may be, at this or that time or place, good and thus persuasive reasons for not following a rule. When making such a (deliberate) decision one may nevertheless act or behave in a manner still in keeping with what we might call the “spirit of the rule,” wanting to communicate to others that we understand and respect the necessity and value of rules in general as constitutive of the bedrock and soil of society. Sometimes our rule-breaking may suggest or imply that a rule needs adjusting or modifying, not eliminating, thus perhaps our actions or behavior can or should provide evidence for, or a clear demonstration of, a possible, plausible or needed justification for departing from the letter of the rule.

The U.S. appears to me to stand apart because of the distressing ubiquity of its prevailing or popular cultural if not social ethic of transgression when it comes to both norms and rules: in brief, Americans (and this is a gross generalization) don’t like being told what to do or how to do it: how to behave, how to cooperate, how to make fair and reasonable collective decisions or how to accord due attention to fundamental rules of propriety, and so forth and so on. In the course of one day I can casually observe people disobeying or breaking all sorts of rules (of etiquette or social norms) and laws (although I’m not able to determine if the latter is intentional or inadvertent). At least in part, we might explain such behavior as having something to do with the ideological entrenchment and recalcitrance that results from a  philosophically, morally and legally indefensible conception of and corresponding belief in “liberty” or “freedom” in conjunction (perhaps better: connivance!) with equally untenable notions of “individualism,” these being sociologically obtuse, politically dangerous, and moral psychologically regressive insofar as they assume the ideological guise of “manifest destiny” or “exceptionalism” or white supremacy or are dispositionally subject to such deleterious psychological mechanisms as self-deception, denial, wishful thinking, illusions, delusions and phantasies, any one or all of which are incalculably worsened by that portion of the masses symptomatically and publicly displaying narcissistic needs and injuries that spread like psychic contagion in the presence of political leaders (the most notorious example of which is Donald Trump, a ‘mirror hungry charismatic leader’ driven to convey an image and sense of ‘grandeur, omnipotence and strength’) who, in turn, provide a compensatory mirror for same that serves to literally rule the minds of many Americans (as a metaphorical and more insidious species of ‘mind-forg’d manacles’). They chafe and fret when faced with either prescriptions or proscriptions, as we amply witnessed on a grand scale during the COVID-19 pandemic, however well-designed or suited these in fact were to the furtherance of their individual and collective health, welfare and well-being.

The notion of rules has strong family resemblance to such concepts as principles (which implicate judgment in ways frequently ruled out by rules; they also are more abstract and general than rules while sometimes being at the heart or basis of rules), laws (natural, scientific, legal, etc.), norms (including of course social norms), guidelines, standards, models, and, arguably, (social) conventions. And rules can be of course explicit or implicit. What follows is a snippet of material from the Introduction to Lorraine Daston’s Rules: A Short History of What We Live By (Princeton University Press, 2022). After this snippet I proffer a handful of titles by way of introducing the nature and function of rules in society. Unfortunately, Daston’s book covers only the “Western World,” and this therefore applies as well to my short list (save a small exception in the asterisk note with regard to notions of rule and law in classical Chinese philosophy*). By way of little more than a hunch, I suspect in much of Asia “models” of one kind or another often function like rules in determining and guiding behavior and conduct, although in Confucianism the notion of li seems to serve simultaneously as a rule or norm as well as a model. Thus the even briefer compilation from Chinese philosophy is shameless indulgence in speculation. Finally, I’m inclined to entertain the likelihood that the notion of rules might vary considerably between East Asia and South Asia (in particular, between China and India). This is not to say rules are less important in that part of the world than in ours, as we await a comparable history along the lines of Daston’s remarkable volume by way of any decent comparison.

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“We are, all of us, everywhere, always, enmeshed in a web of rules that supports and constrains. Rules fix the beginning and end of the working day and the school year, direct the ebb and flow of traffic on the roads, dictate who can be married and to who, situate the fork on the right or left side of the plate, score the runs and walks of baseball games, tame debate in meetings and parliaments, establish what can and cannot be taken on a plane as hand luggage, specify who can vote and when, parse the grammar of sentence, channel customers into the proper lines at the grocery story, tell pet owners whether their animals are welcome or not, lay down the meter and rhyme scheme of a Petrarchan sonnet, and order the rites of birth and death, And these are just examples of explicit rules, and the web becomes so densely woven that barely any human activity slips through the mesh: there are the unwritten rules about whether to greet with outstretched hand or two pecks on the cheek à la franҫaise (or one, à la belge), how many miles per hour over the posted speed limit will be tolerated without incurring a traffic ticket, how much to tip at what kind of restaurant, when to raise (and lower) one’s voice in conversation, who should open doors for whom, how often and how loudly an opera may be interrupted with cheers and boos, when to arrive at and when to leave a dinner party, and how long an epic should be. Cultures notoriously differ as to the content of their rules, but there is not culture without rules, lots of them. A book about all of those rules would be little short of a history of humanity.

Rules are so ubiquitous, indispensable, and authoritative that they are taken for granted. [….] Yet the universality of rules does not imply their uniformity, either across cultures or within historical traditions. Rule exhibit vertiginous variety not only in their content but also in their forms. [….] Since Graeco-Roman antiquity, three principal semantic clusters have mapped out the meaning of rules: tools of measurement and calculation; models or paradigms; and laws. The subsequent history of rules is one of proliferation and concatenation, yielding ever more species of rules and ever more exemplars of each species. The result is a cat’s cradle of complexity almost as complex as culture itself. The three Ur-meanings of rules nonetheless spin our scarlet threads that wind their way through the historical labyrinth over millennia. By adopting a longue durée perspective and canvassing rules from many diverse sources, from monastic orders to cookbooks, from military manuals to legal treatises, from calculation algorithms to practical how-to instructions…. [….]

Three oppositions structure this long history of rules. Rules can be either thick or thin in their formulation, flexible or rigid in their application, and general or specific in their domains. These oppositions can overlap, and some are more relevant than others, depending on which of the three kinds of rules is in question. Rules understood as models tend to be thick in formulation and flexible in application. A thick rule is upholstered with examples, caveats, observations, and exceptions. It is a rule that anticipates wide variations is circumstances and therefor requires nimble adaptation. Thick rules incorporate at least hints of this variability in their very formulation. In contrast, rules understood as algorithms tend to be thinly formulated and rigidly applied, although they too can sometimes thicken. An algorithm need not be brief, but it is seldom designed to deal with unusual or simply diverse cases. Because thin rules assume a predictable, stable world in which all probabilities can be foreseen, they do not invite the exercise of discretion [or judgment or peculiarly human inference]. [….]

Rules understood as laws can also run the gamut from specific regulations governing parking on this street on Sundays to the generality of the Decalogue or the second law of thermodynamics. Both specific and general rules can be applied either rigidly or flexibly. Rules that teem with specifics, like … sumptuary regulations … may need some give in application, if only because the specifics change so quickly. And even the most general law of all, understood as divine commands that are eternally and universally binding, may also on occasion be bent.”

Rules: A short and perhaps idiosyncratic list of recommended readings

• Alexy, Robert. Law’s Ideal Dimension (Oxford University Press, 2021).
• Atiyah, Patrick S. and R.S. Summers. Form and Substance in Anglo-American Law (Clarendon Press, 1987).
• Biccheiri, Cristina. The Grammar of Society: The Nature and Dynamics of Social Norms (Cambridge University Press, 2006).
• Bicchieri, Cristina, Ryan Muldoon, and Alessandro Sontuoso, “Social Norms,” The Stanford Encyclopedia of Philosophy (Winter 2018 Edition), Edward N. Zalta, ed. https://plato.stanford.edu/archives/win2018/entries/social-norms/.
• Bloch, Ernst (Dennis J. Schmidt, trans.) Natural Law and Human Dignity (MIT Press, 1986).
• Bloor, David. Wittgenstein, Rules and Institutions (Routledge, 1997).
• Daston, Lorraine. Rules: A Short History of What We Live By (Princeton University Press, 2022).
• Dickson, Julie. Elucidating Law (Oxford University Press, 2022).
• Dyzenhaus, David. The Long Arc of Legality: Hobbes, Kelsen, Hart (Cambridge University Press, 2022).  
• Eisenberg, Melvin Aron. The Nature of the Common Law (Harvard University Press, 1988).
• Ellickson, Robert C. Order without Law: How Neighbors Settle Disputes (Harvard University Press, 1991).
• Feinberg, Joel. Problems at the Roots of Law: Essays in Legal and Political Theory (Oxford University Press, 2003).
• Fuller, Lon L. The Morality of Law (Yale University Press, revised ed., 1969).
• Garfield, Jay L. The Concealed Influence of Custom: Hume’s Treatise from the Inside Out (Oxford University Press, 2019).
• Gilbert, Margaret. On Social Facts (Princeton University Press, 1992).
• Gilbert, Margaret. Joint Commitment: How We Make the Social World (Oxford University Press, 2014).
• Hacker, P.M.S and Joseph Raz, eds. Law, Morality and Society: Essays in honour of H.L.A. Hart (Oxford University Press, 1977).
• Hart, H.L.A. The Concept of Law (Oxford University Press, 2^nd ed., 1994).
• Hill, Thomas E., Jr. Virtues, Rules, and Justice: Kantian Aspirations (Oxford University Press, 2012).
• Kadish, Mortimer R. and Sanford H. Kadish. Discretion to Disobey: A Study of Lawful Departures from Legal Rules (Quid Pro Books, 2010 [Stanford University Press, 1973]).
• McGinn, Marie, “Rules and Rule-Following,” in her book, The Routledge Guidebook to Wittgenstein’s Philosophical Investigations (Routledge, 2013): 78-133.
• Menski, Werner. Comparative Law in a Global Context: The Legal Systems of Asia and Africa Cambridge University Press, 2^nd ed., 2006).
• Ostrom, Elinor. Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990).
• Pettit, Philip. Rules, Reasons, and Norms: Selected Essays (Oxford University Press, 2002).
• Posner, Eric A. Law and Social Norms (Harvard University Press, 2000).
• Postema, Gerald J. Law’s Rule: The Nature, Value, and Viability of the Rule of Law (Oxford University Press, 2022).
• Raz, Joseph. The Authority of Law: Essays on Law and Morality (Oxford University Press, 1979).
• Raz, Joseph. Practical Reason and Norms (Oxford University Press, 1999, with postscript from 1990 edition by Princeton University Press [Hutchinson & Co., 1975]).
• Schauer, Frederick. Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford University Press, 1991).
• Simmonds, Nigel E. Law as a Moral Idea (Oxford University Press, 2007).
• Stern, David G. “III Wittgenstein on Rule-Following in the 1930s and 1940s,” in Hans Sluga and David G. Stern, eds. The Cambridge Companion to Wittgenstein (Cambridge University Press, 2^nd ed., 2017): 138-151.
• Tamanaha, Brian Z. A Realistic Theory of Law (Cambridge University Press, 2017).
• Taylor, Michael. Community, Anarchy and Liberty (Cambridge University Press, 1982).
• Ullmann-Margalit, Edna. The Emergence of Norms (Clarendon Press, 1977).

* As stated above, I’m going out on a limb here and recommending a few titles that might help us appreciate the various kinds of rules, laws, and norms (e.g., dao, fa, lü, li, etc.) as they are treated in classical Chinese philosophies.

• Graham, A.C. Disputers of the Dao: Philosophical Argument in Ancient China (Open Court Publishing Co., 1989).
• Hansen, Chad. A Daoist Theory of Chinese Thought: A Philosophical Interpretation (Oxford University Press, 1992).
• Littlejohn, Ronnie L. Chinese Philosophy: An Introduction (I.B. Tauris & Co., 2016).
• Nivison, David S. The Ways of Confucianism: Investigations in Chinese Philosophy (Open Court Publishing Co., 1996).
• Nylan, Michael. The Five “Confucian” Classics (Yale University Press, 2001).
• Olberding, Amy. The Wrong of Rudeness: Learning Modern Civility from Ancient Chinese Philosophy (Oxford University Press, 2019).

Update

I purposely left the volumes below out of my original list because I did not want to get too technical or dive too deep into philosophy for those who are not professional philosophers while still making it accessible to students just becoming acquainted with philosophy. Professor Alberto G. Urquidez subsequently contacted me after I posted this introductory piece on my Academia page (having first posted it here and sharing it on the FB page of the Public Philosophy Network) understandably suggesting these titles as essential to understanding Wittgenstein on rules and rule-following. I woke up this morning and decided I would add these as a supplement to the original list for the philosophically brave souls who might be interested. I am grateful to Professor Urquidez for prompting me to change my mind!  

• Baker, Gordon P. and P.M.S. Hacker. Wittgenstein: Understanding and Meaning: Volume 1 of an Analytical Commentary on the Philosophical Investigations, Part I: Essays (Wiley-Blackwell, 2^nd ed., 2009).
• Baker, Gordon P. and P.M.S. Hacker. Wittgenstein: Understanding and Meaning: Volume 1 of an Analytical Commentary on the Philosophical Investigations, Part II: Exegesis §§ 1-184 (Wiley-Blackwell, 2^nd ed., 2009).
• Baker, Gordon P. and P.M.S. Hacker. Wittgenstein: Rules, Grammar and Necessity: Volume 2 of an Analytical Commentary on the Philosophical Investigations, Essays and Exegesis §§ 185-242 (2^nd ed., Wiley-Blackwell, 2014).
• Kripke, Saul A. Wittgenstein on Rules and Private Language: An Elementary Exposition (Harvard University Press, 1982).
• Shaw, James R. Wittgenstein on Rules: Justification, Grammar, and Agreement (Oxford University Press, 2023).