No, the rules aren’t self-enforcing. But we need to believe they are.

Something has always irked me about the phrase “the rules aren’t self-enforcing.” On the one hand, it seems so obviously true that no one could really argue with it. On the other hand, something about it seems to miss some important facet of rules and rulemaking that I’ve never quite been able to put my finger on. But here’s an attempt.

I hear “the rules aren’t self-enforcing” in precisely one circumstance only: when someone is breaking the rules. More specifically, people tend to say it when someone is breaking the rules and getting away with it. These days, it usually comes up in the political sphere, with the application of constitutional rules of one kind or another. Trump, obviously, has been breaking constitutional rules from the moment he stepped on the political stage, and we can add in statutory rules and rules of common decency to the mix as well. And the novel fact about Trump is that, with all this rule-breaking, he never seems to face any consequences. He breaks rules and he gets away with it.

Often these constitutional rules are a little obscure and perhaps open to interpretation in terms of what specifically they require and when a violation has in fact occurred. Impeachable offenses is a classic case – somewhat vague and murky, not that many test cases or precedents to draw from, and usually infused with partisan baggage of one kind or another. So typically the discussion will center around some Trump action, whether it violated some rule, and what the consequences should be. It’s at that point, when it’s clear that Trump will face no such consequences, that the beleaguered constitutional scholar sighs and dutifully intones, “Well, the rules aren’t self-enforcing.” And it’s usually at that point that I start tearing my hair out.

Shifting the Burden

I suppose what I don’t like about “the rules aren’t self-enforcing” is that it subtly shifts the focus of the discussion from the rulebreaker to the enforcer. We are no longer talking about the wisdom of the rule, or how it was broken, or why the rulebreaker did it. Instead, we are now talking about the consequences (or lack thereof). Who is responsible for this state of affairs, where rules are brazenly broken but no one is punished? Well, that’s clearly an enforcement issue. The rulebreaker himself is an afterthought.

And now the whole situation has taken on a different aspect. There’s almost a “it takes two to tango” vibe to it. Sure, the rulebreaker may have broken the rule. But it’s equally true that the enforcer has failed in their duty to impose a punishment for the violation. There are now two people responsible for this rule-breaking situation.

But it’s even worse than that. The rulebreaker himself is largely let off scot-free. “The rules aren’t self-enforcing” would seem to impose no duty on the rulebreaker. It places the entire burden on the rule-enforcer. The rulebreaker is almost treated as if he has no responsibility. He may follow rules, he may violate them. He’s free to do either. But if we want him to follow the rules, then the enforcer must bring the hammer down. And if it doesn’t come down and the rule-breaking continues unimpeded, the fault lies with the (lack of) enforcement.

Optional Rules

“The rules aren’t self-enforcing” seems to assume that the rulebreaker is not going to enforce the rule on themselves. But is this correct? The rulebreaker could, of course, choose not to be a rulebreaker. He could instead look at the rule, look at his potential action that would violate the rule, and conclude, “What I want to do is against the rules. Therefore I’m not going to do it.” But “the rules aren’t self-enforcing” seems to preclude this possibility. We should assume that everyone wants to break the rules. (Or perhaps more charitably, they want to do what they want to do, and they don’t want the rules to get in the way).

Let’s take a moment to appreciate just how pernicious this attitude is. The assumption is that no one feels any obligation to follow the rules. The rules are only a burden, a hinderance. So naturally everyone will try to get around them in whatever ways they can. And this is held up as an obvious and natural principle. Why would anyone ever accept any restrictions on their freedom? Of course they’re going to break the rules whenever they can. Following the rules is for suckers.

And now the burden really is on the enforcers. The default setting is that no one cares about the rules, and will follow them only to the extent that they believe they will be enforced. So whether the rules are followed or not is purely a matter of whether the enforcers will do their jobs. No one is expected to voluntarily obey. The rules, after all, aren’t self-enforcing. If you can get away with it, why shouldn’t you?

A Brief Rant

Here I’m going to get up on my soapbox for a bit to do some undignified screaming.

This is not how rules work! There’s no such thing as “optional” fucking rules! They are mandatory! That’s what makes them fucking rules!

I’m sick and tired of this attitude that getting around the rules is somehow natural or justified or smart or even noble. It’s not! The rules are the rules, and I obey them because they are rules, not out of any fear of getting caught and being punished. I don’t go into groceries stores and steal shit when no one’s looking. I don’t run red lights any time I see that there isn’t a cop around. I don’t cheat people, I don’t break promises, I don’t renege on contracts. Not because I’m worried about the consequences but because I want to live in a goddamn society! Rules aren’t for suckers – they’re for good citizens who want to fucking do the right thing.

The Rules are Our Rules

Rules impose restrictions, no doubt about it. None of us are completely unfettered free agents, allowed to do anything we like at any time. We live in a society, not a wild west anarchic free-for-all. We have rules, and a duty to obey them.

But these rules don’t come out of nowhere. They aren’t imposed from on high by some omnipotent monarch. They aren’t issued as dictatorial decrees by some autocratic Caesar. America is a constitutional republic. It is a nation of laws. It is, famously, an experiment in self-government. The rules are our rules! We make them.

And this is why I am happy to obey them. The rules govern us legitimately because they are made with the consent of the governed. That’s the social contract we all agree to be bound by. It’s why America exists in the first place. We demanded the right to make our own rules and won a war to secure that right.

In our republic, we don’t make the rules directly through plebiscites or citizen assemblies like in ancient Athens. We outsource our rulemaking to our elected representatives. And no one is going to agree 100% with every rule that our representatives lay down. But we feel (or should feel, at any rate) that we have some power to affect what those rules are. If we don’t like the rules, we can elect different people who will put in place different rules. In short, there’s a (democratic) process for making rules, and we all have some amount of input in that process. And the process thus affords legitimacy to those rules.

A World Without Rules

Society simply can’t function if everyone treats the rules as optional. It’s not going to work if everyone has a “come and make me” attitude towards the rules. In fact, it’s very difficult to have a functioning society if even a small number of people treat the rules in this way. The rules require universal voluntary acceptance.

And that’s why we all need to believe that the rules are self-enforcing. Not that the words on a piece of paper are going to jump off the page and arrest you if you violate them. But that the underlying assumption of our nation is that everyone feels it is their duty to act in conformity with the rules. That we will all self-police. This how rules are enforced – not by meting out punishments left and right, but by the citizenry voluntarily choosing not to break the rules in the first place.

If this isn’t the bedrock assumption, if it isn’t the default setting, then it is only a matter of time before it all crumbles to dust. Once people start seeing that the rules aren’t being followed, and that getting around the rules is treated as acceptable, they will wonder whether those rules still exist. And if they see the highest officers of the government, or the wealthiest and most powerful individuals in the country, brazenly breaking rules, they will conclude that the rules don’t apply any more. They will see that the basic social contract has been broken.

So yes, the rules are self-enforcing. That’s what makes them rules. Stop asking why the enforcer isn’t doing their job; that’s a secondary issue. Instead, ask why the rulebreaker thinks he has the right to break the rules. Let’s put the focus back on the rulebreakers. Only then can we get back to being a nation of laws.