Comments by Torben Spaak On Dan Klein’s Four Sets of Nonconflicting Rules

The first commentary on Dan Klein’s Four Sets of Nonconflicting Rules (lead essay here) comes from Dr. Torben Spaak, Professor of jurisprudence, Department of Law, Stockholm University.

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Comments by Torben Spaak On Dan Klein’s Four Sets of Nonconflicting Rules

In his short piece, “Four Sets of Nonconflicting Rules,” Daniel Klein distinguishes seven sets of rules, of which four are sets of (what he takes to be) nonconflicting rules, namely:

(i) the actual current governmental law;

(ii) the grammar-like rules of commutative justice;

(iii) all laws that delineate the rightness of any decision, made by anyone, ethics writ large;

(iv) the would-be laws of government conformant to  the previous set, that is,
set (iii); just government law in the full sense of justice.

He then argues that we have failed to do justice to the rules in set (ii), and that if we succeed in doing justice to those rules, we can resuscitate (what he calls) natural jurisprudence.

I will begin by briefly answering four questions that Dan asked me and will then proceed to identify some interesting questions raised by his text, pose a few questions, and raise a few objections to his analysis.

• The four sets of nonconflicting rules make sense to me.

• There may well be other sets of nonconflicting rules, say, the rules of tennis or football (soccer), though such sets may not be “focal and central for moral theory, political theory, and jural theory,” which is what is of interest to Dan.

• I believe it makes sense to conceive of a kind of moral theorizing that revolves around these four sets of rules.

• I have not seen any similar list of nonconflicting rules before, but I may well have missed something. If I wanted to find such a list, I would look in older books of natural law theory, such as Grotius, Pufendorf, Locke, and others.

Dan’s essay prompts further questions, and I shall identify a few of them. The first question is whether the four sets identified by Dan are really sets of nonconflicting rules. I am inclined to disagree. For example, it is quite clear that governmental law in say, Sweden, is not a set of nonconflicting rules. Indeed, that is why Swedish law as well as most other systems of law include the well-known conflict-solving maxims: lex superior, lex specialis, and lex posterior. To be sure, Dan qualifies his claim about this set of rules by adding that it is the aspiration for those rules not to conflict and that absence of conflict is at least a conceptual possibility. I agree, of course, that absence of conflict, is a conceptual possibility; the set of government rules is certainly not necessarily inconsistent (in the wide sense of consistency that we have in mind here). I do insist, however, that (i) actually being consistent, (ii) aspiring to be consistent, and (iii) consistency being conceptually possible are very different concepts. Concept (iii) is quite weak, concept (ii) is unclear, and concept (i) is quite clear once we have made it clear to ourselves how we are to understand the idea of conflicting rules. For our purposes here, we might say that a set of rules is free of conflicts if, and only if, the rule-subjects (those whose behaviors are regulated by the rules) can act in accordance with any one rule in the set without having to violate another rule in the process.

I would like to know more about the set of commutative rules; a few examples would be appreciated; and I would also like to hear something about why we should believe that this set of rules is free of conflicts. I assume here that the claim is that they are necessarily, by their very nature, free of conflicts. Why should we accept this claim? I suppose one could argue that if the set of rules was not enacted by someone, but is rather anchored in human reason, then they must be consistent. Here I come to think of the possibility of moral dilemmas and the claim that such dilemmas are nonsensical: morality is necessarily consistent.

Dan also considers the question of when a rule is a law. Whereas some rules are laws, others are not. What it is that turns a rule into a law? Following Pufendorf and others, Dan maintains that a law (i) consists of two parts, a precept and a sanction, and (ii) is laid down by a superior. But if this is so, there will be no laws in nature, since there are no superiors in nature, unless we accept the idea that God is a law-giver. Dan does not accept this, so he proposes that we conceive of Joy as a being with superhuman knowledge and benevolence, and that Joy’s disapproval can count as a sanction. This seems rather far-fetched, however, but Dan suggests the following line of reasoning: “If other people have a similar sense of Joy and thus take to heart sensibilities aligned to Joy, then her disapproval would tend to correspond to the disapproval of actual fellow human beings around”. I do not find this line of reasoning convincing, however. First, Joy simply is not a being and so cannot disapprove of anything. Secondly, people have different senses of joy, and if we think of each’s sense of joy as corresponding to each’s sense of Joy, we find that the laws say precisely what the relevant group of people say and think; and this does not seem right. Surely, what is right need not always be in keeping with what people think is right. If it did, it would legitimize mob rule.

As regards flat legal positivism, as Dan calls it, which seems quite similar to legal positivism, as I know it, one must remember that it follows from the separation thesis of legal positivism—which has it that there is no necessary, certainly no conceptual, connection between the content of law and true morality, that any moral authority that a given legal system might have will be due to the content and administration of that legal system, which are contingent matters. This means that any superior that legal positivism recognizes will be a superior in a strictly legal, not moral, sense.

Dan also considers an infinite regress that stems from the insistence that every law imposes sanctions. For if every law imposes sanctions, and if every sanction must be applied by a government agent who is thus acting in accordance with another law, then if citizen Jones violates a law, government agent B will have to impose a sanction on Jones, and if B does not do that, then government agent C will have to impose a sanction on B, and if C does not do that, then government agent D will have to impose a sanction on C, and so on. This series of agents imposing sanctions on law-breakers assumes, of course, that each government agent is acting in accordance with a law that requires him to impose a sanction on whoever violates the relevant law.

It is true that we will want to stop this regress at some point, but for legal positivists this is not a serious problem; and it is not a serious problem because not much depends on its solution. The legal positivist will be happy to say that we will break the chain at a given point. This is where Hans Kelsen’s basic norm comes into the picture. But Kelsen was concerned to account for the so-called normativity of law, and legal positivists in general are not concerned with this problem, and need not be. In this context it is worth noting that not all laws or all rules are duty-imposing rules. Most legal scholars recognize so called power-conferring rules (or competence rules), which confer legal power (or competence) to change legal positions on the agent, for example, by enacting norms, making decisions, marrying people, entering into contracts, and more. Such norms do not require a sanction, and it does seem natural to think of the end-point in the above-mentioned regress as a power-conferring rule, which does not impose a sanction on anyone; and if we do think of the end-point in the way suggested, we do not need to assume the existence of yet another government official whose task it is to apply a sanction to one who violates that rule; it also does not seem natural to speak of one who fails to exercise his competence correctly as one who has violated the rule.

Suppose, however, that we cannot avoid the infinite regress. Does this mean that we have to go along with Dan and assume the existence of spirits and the like? I do not think so. As I have said, the legal positivist may simply choose to stop the regress at any given point and accept that the highest rule in the system need not be a law in the full sense of including a sanction. For the sake of coherence, such a legal positivist should also qualify his claim that all laws impose a sanction on the law-breaker and say instead that most laws do so.

Finally, I do not quite see what role the above-mentioned assumption that the sets are sets of non-conflicting rules play in Dan’s reasoning. Of course, the assumption is quite reasonable, since to the extent that a set of rules includes conflicting rules, it will not be able to guide the behavior of its subjects. Nevertheless, it would be interesting to get Dan’s views about the importance of the assumption and about how we should understand the idea of a rule-conflict. As regards the latter question, should we, as I suggested earlier, think of two rules as being in conflict if, and only if, the rule-subjects cannot follow the one rule without violating the other rule, or should we think of two rules as being in conflict if, and only if, they contradict one another in the sense that they cannot both be true in the same situation? The point of choosing the latter alternative would be to take into account the fact that the explanation of why a person cannot obey rule A without violating rule B is that the latter alternative allows that this impossibility can arise from either the agent or the system of rules, and that this difference may be important in some cases. Suppose you have entered into two different contracts, and that if you fulfill your obligations in the one contract you can’t fulfill your obligations in the other contract; perhaps you won’t have any money left. Would Dan say that the the rules are therefore in conflict? But here the conflict arises from the agent, not the system of rules.