Four Sets of Nonconflicting Rules: Reply to Torben Spaak and John Cairns
Four Sets of Nonconflicting Rules: Reply to Torben Spaak and John Cairns
The present communication is the fifth in an exchange on “Four Sets of Nonconflicting Rules.” The preceding four pieces are:
Dan Klein “Four Sets of Nonconflicting Rules”
I am grateful to Torben, John, and Andrew—and Zack—for their intellectual companionship in exploring some of the intricacies of the sets of rules. I think of a description by C.S. Lewis (in “A Grief Observed”) of one of the miracles of love: “a power of seeing through its own enchantments and yet not being disenchanted.”
I will reply to Andrew subsequently. Here I reply to Torben and John.
Torben nicely reiterates the four sets of nonconflicting rules. I block-quote his reiteration:
(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.
When I invited Torben and others to comment, I prompted them with some questions. Torben graciously answered them, as follows: (1) that the four sets of nonconflicting rules make sense to him; (2) that he can think of no set that would constitute a fifth significant set of nonconflicting rules; (3) that it makes sense to conceive of a kind of moral theorizing that revolves around the four sets; and (4) that he does not recalling seeing a similar four-set enumeration.
Government’s rules nonconflicting? I was trying to be nice
I like Torben’s articulation of the key condition for calling a set of rules nonconflicting: “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.”
Both Torben and John pause over calling the set of rules of actual current government law nonconflicting. Torben notes that I qualify that myself. Torben distinguishes between (1) actually being consistent, (2) aspiring to be consistent, and (3) “consistency being conceptually possible”. John points out that a major role of the judge “is generally to reconcile conflicts in rules,” and highlights hierarchies of courts and of law-making bodies, and of supersession through time.
I appreciate Torben’s and John’s qualifications and hesitations. They provoke thoughts about the fine print beneath the headline “Four Sets of Nonconflicting Rules”—“mostly,” “wannabe,” etc. Indeed, we could get by by changing the headline to “Three Sets of Nonconflicting Rules Plus Government Law.” But neither Torben nor John seems to pose the issue as a serious challenge. We are all OK, I think, with “Four Sets of Nonconflicting Rules.”
The rules of commutative justice are nonconflicting
Torben asks, Why should we accept the claim that commutative-justice rules are nonconflicting? I am inclined to respond: By construction.
The basic precept of commutative justice is Don’t mess with other people’s stuff. The particulars of “stuff,” “other people’s,” and “messing with” vary somewhat by time and place—just as linguistic grammars do. The staples covered by commutative justice are person, property, and promises due (see here chs. 1, 4, 6). To say that there is a conflict among a historic community’s rules of commutative justice seems analogous to saying there is a conflict among a community’s rules of grammar. Wouldn’t we reinterpret the set of rules—perhaps just dropping or loosening some of the rules—so as to formulate a nonconflicting set? Or, instead, in the matter of a linguistic grammar, I suppose we might decide that the community simply doesn’t meet our presupposition of its having a grammar. For commutative justice, we might opt to say it doesn’t meet our presupposition of its having a system of commutative justice, or even being a community at all.
As for whether there is rule conflict when some fellow, call him Tom, does not have enough money to keep promises he made to Jane and to Kate (a question Torben raises in his final paragraph), I’d say no, at least not in one of our four important sets of nonconflicting rules. We’d make sure of that. For set (ii), commutative justice rules, perhaps we’d say that Keep your promises is a precept (or rule), and from there we’d speak of applications, instances, or treatments—for the promise to Jane, the promise to Kate. By assumption, Tom cannot live up to the rule fully, but there is no conflict between rules in the set. For set (iii), ethics writ large, the supreme rule (or precept) is something like Advance the good of the whole or, correspondingly, Do what will best please a universal beholder who is universally benevolent. Beneath that supreme rule there are subrules, and we could complicate them with clauses and contingencies, to ensure that the rules and subrules within the set do not conflict. Rules within the set would pertain to what to do in the posited situation of Tom’s inability to meet both obligations.
The full sense of law
In my lead essay, I invoked the tradition of Pufendorf, Carmichael, Hutcheson, and Smith about a law involving a precept (or rule) and a sanction, and being laid down by a superior.
Both Torben and John raise the issue of whether the specification of a sanction is strictly necessary. John cites the first provision of the Scotland Act (enacted in 1999), “there shall be a Scottish Parliament.” John certainly deems that provision to be law, but he does not see a sanction. I’m not sure whether he would say that he sees a precept. I welcome the example, and am not sure what to make of it and cases like it. Again, maybe I just need more fine print. Let me share thoughts prompted by the example.
First, we might make a distinction between government as a jural superior, that is, qua governor (Smith in paragraph 81.8 of TMS speaks of “the laws,” “the civil magistrate,” “the sovereign,” and “a law-giver”) and government in its capacity of a jural equal—“the public sector”—which owns or manages certain resources (see here ch. 1)—public administration. We might opt to deem the provision “there shall be a Scottish Parliament” to be a public-administration expression of the designs of government agencies qua jural equals, rather than as a law laid down by the jural superior for others (the governed) to live by. If they (the governed) wish to deny that there is a Scottish Parliament, they are free to do so (at least until the “misinformation” police say otherwise!).
Continuing with the public-administration interpretation: Is “there shall be a Scottish Parliament” a law in our full sense? I’m not averse to saying, yes, of a sort, but the law-making superior here is not the jural superior; rather it is something like conscience, nature, God, humanity, and so on. Once the government creates the Scottish Parliament—and duly so, in every reasonable respect—the animism of conscience etc. would censure your denial of its existence. The law here has a precept about accepting certain things as fact and a sanction of gnawing disapproval for not doing so. So maybe it’s law in the full sense, but not government law.
Unconscionable
But Torben is having none of it. The animism, he says, “simply is not a being and so cannot disapprove of anything.” Is Torben implying that his conscience doesn’t exist and hence doesn’t disapprove of anything that Torben does? If Torben would say he does have a conscience, does his conscience not lay down rules for him, which he may then regard as laws of his conscience?
I defined “flat legal positivism” as using the word law for positive government law and only for that. Torben said that sounds like plain old legal positivism—no “flat” needed—and maybe that’s right. Torben seems to subscribe to legal positivism. As for John, he doesn’t indicate clearly either way whether he’d confine “law” to government law.
I, like Adam Smith, am favorable to “law” being used beyond the meaning of the government’s legal rules.
In my lead essay I noted that we get a regress if for every lawi (involving precepti + sanctioni) there is another lawi+1 (involving precepti+1 + sanctioni+1), with precepti+1 bearing on the executor of sanctioni. Torben agrees, and rightly says that that’s not true for every government law: “we will break the chain at a given point. This is where Hans Kelsen’s basic norm comes into the picture.” I agree that the chain of government law has to be broken, and citing norms suits me fine. But the question I have for Torben is, why not call said basic norm “law”?
Torben writes that the “basic norm” “does not impose a sanction on anyone.” Well, it’s a norm, so doesn’t violating it have consequences, notably with one’s own conscience? Why not use the law rubric here, with a superior and precept + sanction? In my lead essay I briefly indicated a reason to do so, namely, that that way critics of government law can invoke “law”—higher law—against government law. Why does Torben make the semantic decision he makes? How does his decision serve the greater good?
The Tao
Let’s posit another fellow. Let’s call him Adolf, since few newborns have been named Adolf since 1945.
Suppose that from wickedness Adolf poisons a reservoir. Besides violating certain legal rules and certain commutative justice rules, Adolf has violated the most central rule of set (iii), ethics writ large, namely something like, Don’t act plainly contrary to the good of the whole. I think here of C.S. Lewis’s Appendix to The Abolition of Man, containing illustrations of the Tao. But Torben, I gather, would oppose talking here of a law of God, of conscience, of nature, of humanity, of goodness, of the Tao, because, Torben says, “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.” The point of Lewis’s appendix is to show how universal basic precepts of the Tao have been.
Of course, people have different takes on the good of the whole and how to promote it, but most people, we hope, sacralize a rule against acting plainly contrary to the good of the whole such as by poisoning a reservoir. How are they to sacralize that basic rule without the word “law”? We the parties of the conversation feel—and quite apart from legal rules—the full force of law. That Adolf breaks the highest law does not mean our “law” talk is unworthy.
Coping with messiness
John concludes his piece by emphasizing that law is messy. He seems to salute Smith on commutative justice, and notes that “Smith praises Grotius’s theory of natural law, where natural law would be binding even without God”. Perhaps John embraces natural law. He writes, “I see law as influenced by all kinds of factors and indeed as having all kind of aspects. This type of analysis is imposed on the complex reality created by history.” Here I wish to say only that the point of setting out the four important sets of nonconflicting rules is not to deny the world’s messiness, nor, perhaps, even to reduce it, but rather, conformant to the highest law, to cope better with it.