Rules That Are, Rules That Aren't

and what happens when they implode

Many years ago, a friend visiting a national park with his family toddled out to a scenic vista with his dad, a couple of camp chairs, and a bottle of wine. They opened the bottle in the shadow of a NO ALCOHOL sign, seeing it and choosing to ignore it. There they sat, watching the sunset, until a ranger drove up, got out of her truck, watched the sunset with them for a moment, and then said, “You do know you’re not allowed to drink alcohol in this area, right?” Yes, my friend said, we do know, and would you like to join us for a glass of wine? “Love to,” she said, and she went and got her own folding chair out of her truck.

As a parent, I’ve spent the last decade trying to explain the difference between “really rules,” things that you actually don’t do because someone tells you not to, and rules that have practical limits and an undeclared purpose: The parents are drinking whiskey by the campfire in the campground with the “no alcohol” sign because, in this instance, the rule is there in case anyone is obnoxious about it. This rule isn’t a rule if no one really breaks it — you can break it, but you can’t break it break it. (The red Solo cup, the world’s most important social make-believe drinking prop.) Or: This sign on this path that says “stay out” is next to the hiking path, not blocking the path, and the people who put up the sign obviously took care to not block the path with it, and there are people walking on the thing, you see how that works?

The related discussion — adjacent to this one about military authority that declines to notice certain things — is the one about what cops “don’t see,” like the time I watched a deputy sheriff walk past a group of dads in a high school parking lot during a Friday night football game in a small Eastern Sierra town; he didn’t notice that the dads were drinking beer in the campus parking lot — again, not far from the ABSOLUTELY NO ALCOHOL ALLOWED sign — because just at the right moment, something in the other direction caught his attention, and he looked over there until he had walked all the way past them. That’s a healthy community doing its thing, and police not hassling people over chickenshit, but the dads with the beer also understanding that they need to be cool with it.

Rules that have limits and undeclared purpose, that exist to draw some general boundaries without being absolute and rigidly enforced, are products of a high-trust society with some degree of shared values. They rely on the fact that most people will understand what the rule really means. Social health starts with shared trust, with boundaries that are clear enough without rigid and formal enforcement. Neighbors know how to treat neighbors; most people know how to not be assholes. There are rules, and laws — and then there are things you just don’t do. Sometimes those categories more or less align.

The Yale Law professor Robert Ellickson has famously written about Order Without Law, in an analysis that “shows that law is far less important than is generally thought. He demonstrates that people largely govern themselves by means of informal rules — social norms — that develop without the aid of a state or other central coordinator.” Ellickson talked to cattle ranchers and government officials in a rural county in northeastern California, and compared their practical understanding of trespassing and damage from stray livestock to what state laws actually said. None of it was an exact match: The law said X, the ranchers consistently did Y, and it worked:

I found no one in Shasta County — whether an ordinary person or a legal specialist such as an attorney, judge, or insurance adjuster — with a complete working knowledge of the formal trespass rules… The layman’s penchant for simplicity enabled them to identify correctly the substance of the English strict-liability rule on cattle trespass that formally applies in closed range. In that regard, the laymen outperformed the judges, attorneys, and insurance adjusters who were interviewed.

Many of the features of the current social and political mayhem strike me as a collapse of the other rules, the ones that people just knew without consulting the statute books or the employee manual. The Disinformation Governance Board is government doing things that we all would have known, not more than a decade ago, it had no business doing. That knowledge and its loss aren’t a straight line moving through history; we cycle through moments when we have shared understanding and moments when we don’t. The collapse of social trust that took place in the late Gilded Age and on into the Progressive Era led to a world in which the Creel Committee made sense to the governing class, and here we are again.

The same goes for an employee inside the Supreme Court leaking a draft of a brief for the first time in the history of the court, or law students screaming and howling because their law school invited a speaker who held views they disagreed with.

Our crisis is one in which people don’t know they’re not supposed to do things that just aren’t done. A professor at Yale Law School read the students the school’s policy on the disruption of academic events. The problem is needing to have that policy, and needing to refer to it.

We’ll try to do what Yale did: We’ll answer cultural disintegration by writing down more prohibitions. It won’t be an answer to the deeper crisis.