AN ORDER, MOST FIXED.

• Author: Lahav, Alexandra D.

RULES: A SHORT HISTORY OF WHAT WE LIVE BY. By Lorraine Daston. Princeton: Princeton University Press. 2022. Pp. xvi, 278. $29.95.

INTRODUCTION

Every once in a while, a book is written that explains more than its own field. Lorraine Daston's Rules: A Short History of What We Live By (1) is that kind of book. She teaches us how the same concerns about rules legal thinkers focus on permeate many other domains and in the process demonstrates how legal rules are part of a larger social web of rules regulating human conduct. She also teaches us something about law that is analogous to the way lines and blurred lines work in depicting reality in portraiture. How to represent the difference between a thing and its surroundings--the figure and the ground--is one of the recurring problems in European painting. Truly great artistic geniuses in that tradition have come up with brilliant ways of depicting that difference. Consider Leonardo da Vinci, who perfected the technique of sfumato. (2) Counterintuitively, by blurring the lines around the figure, Leonardo made the subject of the painting seem more real. Although slightly blurred, his portraits reflected the world he inhabited.

Now contrast a portrait by Leonardo with one by Pablo Picasso during his cubist period. Picasso, too, was addressing the problem of how to represent the difference between the thing and its surroundings. His use of lines called into question that relationship, unlike Leonardo who was trying to depict it. We can have a formally interesting set of rules such as the lines and planes of a cubist painting, but they won't reflect the world we inhabit. Indeed, they push against that world.

The artists people might think have the most trouble-free representation of the relationship between the thing and its context, such as Leonardo da Vinci, depict that relationship in a fuzzy way. The more artists thought about it, however, the more they focused on the relationship between the figure and the ground, and the more problematic that relationship became, until Picasso made blasting apart any relationship between the figure and the ground the project of his cubist paintings. There is no pretense in the cubist portrait Girl with a Mandolin that the subject is separate from her surroundings. All the elements of the painting are depicted using two-dimensional planes intersecting with one another.

This brings us to Daston's book. Daston posits that, over time, there has been a shift from a view of rules-as-models or paradigms to one of rules-as-algorithms or tools of measurement. Daston observes that "by driving the exercise of discretion underground, rules-as-algorithms blow up the bridges that connected universal to particulars in rules-as-models" (pp. 2, 21). These algorithmic rules can be analogized to Picasso's two-dimensional planes and lines--they are clearly delineated, but not only are they unable to depict how we inhabit the world, they break apart the sense of wholeness that fuzzy techniques like sfumato create. It is hard to imagine living in a world of two-dimensional planes painted by Picasso. By contrast, the fuzzy borders of Leonardo connect the figure and its surroundings. What Daston calls models similarly connect the universal with the particular.

In the law, we often refer to these algorithmic rules as bright-line rules--Daston call them thin rules (p. 3). The chief insight of Daston's book is that thin rules as well as algorithmic rules are a product of a stable legal order as much as they are formative of one. Only when the world is stable and relatively unchanging can such rules govern. Without stability, rules break down. "When rule-governed world orders do come into being," she explains, "the rules depend on the order just as crucially as the order does on the rules" (p. 20).

The implication of Daston's thesis is that while thin-rule regimes, or rules-as-algorithms, can be effective in times of relative stability, the rules do not create stability. In fact, it may be the other way around: stability allows rules to flourish. To the extent legal thinkers have staked their theories on the idea that rules promote stability, they may have the causal direction wrong. I close by considering the following question: what does it mean for an increasingly destabilized world if stability enabled rules?

1. DASTON'S TAXONOMY OF RULES

   Daston puts rules into three semantic clusters, which will be at once familiar and unfamiliar to lawyers. There are rules that are (1) tools of measurement and calculation, (2) laws, and (3) models or paradigms (p. 2). For each of these, there are three oppositions that can structure them: (1) thin versus thick, (2) rigid versus flexible, and (3) specific versus general (p. 3). Algorithms--or tools of measurement and calculation--are ordinarily thin, a condition which Daston demonstrates is historically contingent. Algorithms "implicitly assume a predictable, stable world in which all possibilities can be foreseen, [and] they do not invite the exercise of discretion" (p. 3). Laws are more varied. They can be thick or thin, rigid or flexible, general or specific. (3) What lawyers and legal scholars often think of as a broad principle, sometimes called a standard, Daston calls a "law." And laws can be more or less general. Legal scholars who write about rules spend much of their time thinking about the threesome of oppositions: thin/thick, rigid/flexible, and particular/general, (4) and less time thinking of the three semantic clusters: algorithms, laws, and models.

   What legal scholars often call a rule, Daston places in a category she calls regulations, (5) which overlaps substantially with algorithms and other mechanical calculations. An example from my own field of civil procedure is the twentieth-century rule that jurisdiction over a corporation cannot be obtained by serving its agents process, (6) or that a defendant has twenty-one days to serve an answer after being served with the summons and complaint. (7) Attempts in law to predict outcomes of cases using algorithms or to create "personalized law" by mechanical calculation are the perfect crossover between the two categories. (8) Daston's examples include a twelfth-century Genoan ordinance outlawing sable trim (p. 157) and a nineteenth-century Parisian traffic ordinance that required everyone to drive on the right side of the road (p. 183). Regulations can be thinned or thickened with exceptions and explanations. They can be placed on a continuum of flexibility and generality. (9) In Daston's view, regulations do not avoid the ambiguity and challenges posed by those not wanting or able to comply. Her example of sumptuary (10) laws is particularly useful here: every time a new regulation was passed (such as one banning pointy shoes), fashion would change (pointy shoes are so last season!) (p. 157).

   What has been largely lost, Daston argues, is models. Lawyers are very familiar with models. After all, models, or cases, and their primary tool of analysis, analogical reasoning, are the core of the common law method. It should be the case that Daston is wrong, that models live on in our common law tradition. Indeed, her use of common law reasoning is a core case of models in action. (11) But she is mostly right that, even in law, models have fallen out of favor (albeit not entirely), and to our detriment. (12) Before we get there, however, we should experience a taste of the beautiful journey that is Daston's book.

   She begins with a fascinating historical tour of semantics. The Greek word for rules, kanon, derives from the Semitic word for a giant cane plant, "tall as a tree and arrow-straight" (p. 23). The Roman term, regula, was also associated "with straight planks and wands and, more metaphorically, to that which upholds and directs" (p. 23). These are rules as mechanical tools of measurement. They have multiple meanings--rigid and specific, for example. But they can sometimes bend, "like Aristotle's pliable ruler of Lesbos, which curved to measure rounded surfaces" (p. 239). She then walks the reader through the development of mechanistic calculations, including a fascinating short history of cookbooks, which did not always provide as much specificity for the would-be baker as they do today (pp. 70-76).

   Three chapters in the book are of particular interest to legal scholars and students and are therefore the focus of this Review: Chapter 6 on Rules and Regulations, Chapter 7 on Natural Laws and the Laws of Nature, and Chapter 8 on Bending and Breaking Rules.

   In her chapter on natural laws and the laws of nature, Daston demonstrates a transition from the view of natural laws and the laws of nature as changeable, dependent on God's will, to one in which the most important quality of both was constancy and universality. "Medieval commentators ... concluded that whatever God ordained, even in defiance of his own commandments, was ipso facto mete and right," she explains (p. 234). "[I]n contrast, eighteenth-century proponents of natural law in jurisprudence and laws of nature in natural philosophy equated human justice and natural order with unflinching adherence to fundamental laws" (p. 234). Not everyone, she points out, agreed with this view, and the local continually reasserted itself against the universal. Montesquieu, for example, "highlighted the critical disanalogy between natural laws and laws of nature: the latter compelled obedience by physical necessity, the former only by the assent of reason" (p. 236). As the eighteenth century went on, universal legality became merely a metaphor, whereas universal physical laws remained just that: immutable, inescapable, and all-inclusive. Still, universal legality was an important metaphor. Daston discusses Kant's treatment of reason as "sever[ing] almost all the ties that had once bound" natural law and the laws of nature together, although he nonetheless "exhorts all rational beings" through the...