The deceptive nature of rules.

• Author: Alexander, Larry

Modern society lives under rules. Rules organize our morality, our social behavior, our religious activities, and our legal relations.

Much has been written about the allegedly fictitious nature of rules. Some say rules are deeply indeterminate and function only as cover for relations of power.(1) Others (more in keeping with the attitude of those who live under rules) reply that rules have sufficient meaning to act as restraints both on those who follow them and on those who apply them.(2)

We do not intend to enter that debate; we shall assume that rules have determinate meaning. Our point is that rules work best when they are understood in a way that is not quite true. In other words, rules are most successful when they are taken to be "serious rules." A serious rule, as opposed to a rule of thumb, is one that dictates the course of action to be taken in all cases that fall within its terms. For example, suppose there are rules in effect that tell us not to park in private driveways and not to appear in public without clothes. If we take these as serious rules, we take them to mean that we should follow them without further thought--that respecting private property, or wearing clothes, is the right choice for all of us in every case. And sometimes, at least, we do follow rules in this unthinking way.

In fact, rules do not identify the best course of action in every case: they are overgeneralizations, and often quite consciously so. Yet rule-makers seldom explain the character of rules, and they expect, or at least hope, that the audience of rule-followers will accept them as serious rules. In this sense, rule-makers "lie" to rule-followers, a fact with serious practical and moral consequences.

We use the term "lie" loosely, but deliberately. The promulgation of a rule is not a lie in the ordinary sense, and the public certainly does not take all rules as "true." Indeed, rules, as such, cannot be true or false: they are norms, not propositions. Yet the promulgation of every serious rule, such as "In all cases of F, do A," is accompanied by the implicit proposition, "It is right all things considered that . . . ." That proposition does have truth value; and it is false. Nonetheless, as we shall explain, rule-makers have reasons to hope that rule-followers will take this false proposition to be true and misunderstand the nature of serious rules.

We have chosen strong terms, such as "lie" and "deceive," because they capture in a dramatic way the relation between authority and subject within a system of rules and the moral dilemma that such a system poses. The problem we are interested in is really one of esoteric government, in which the governed are not fully aware of the nature of the system that governs them. At least in a society that values publicity and accessibility of government, it seems fair to place such an esoteric strategy of governance in the category of deception.

The best way to explain how and why rules deceive their subjects is to describe rules from two different perspectives: that of a governing authority designing a system of rules, and that of an individual who is expected to conform to the rules.(3) In the discussion that follows, we often contrast these two perspectives to show why a governing rule-making authority might want individuals to approach decisions differently from how the authority itself would. We recognize that the notion of an authority's consciously manipulating rules in the ways we suggest is somewhat artificial. In the practical world it would be quite unusual to find an authority possessed of clear vision and a definite political theory, issuing rules from behind a screen. The process of social and political organization is more likely to proceed without such firm centralized control. Thus, the phenomenon we are describing is really one of half-conscious self-deception: should we resist rules and reexamine them as we apply them in particular settings? Or are we better off following them without much thought?(4) This characterization of the issue does not alter our conclusion that rules are deceptive; it only makes the deception more difficult to evaluate.

We will speak most often of legal rules because they provide the simplest examples of the points we want to make. But much of what we say may apply to social, moral, and religious rules as well.

1. HOW AND WHY RULES LIE: SERIOUS RULES

   At the simplest level, our proposition is that rule-makers lie by employing rules. Before we can explain what we mean by this, we need a working definition of a rule. Setting aside some problems that do not immediately affect us,(5) a "rule" is a prescription for conduct, applicable to a range of actors, which is designed to promote an end or protect a right, but does not simply recite its objective.(6)

   To serve its purpose effectively, a rule of this sort must claim to be something other or more than it is. This is easiest to see when the rule at issue rests on consequentialist grounds. For example, suppose a lawmaking authority has determined that its objective is to maximize the happiness of its subjects, or, more modestly, to promote safe automobile travel. Suppose, too, that most of the people the lawmaker presides over endorse these goals. Still, the authority may believe that it can better serve its goals by issuing a rule that requires drivers to stop at intersections than by directing them to drive safely or to drive in a way that will maximize happiness.(7)

   The authority is likely to be correct on this point. Individual drivers pursuing a goal of safe driving are subject to several kinds of error that do not affect the authority in its design of a rule.(8) For example, they may lack information available to the authority, such as data on the frequency of travel. They may overestimate the value of particular interests of their own in relation to the general goal. They may be unwilling to contribute to joint action that will further the goal without assurance that others will contribute as well. If so, the authority may rightly conclude that it can produce a better sum of results by means of a rule, although the rule (by definition) is not perfectly tailored to its goal and will sometimes miss the mark.(9)

   None of this is new. The more interesting point is that if the authority does reach this conclusion and selects a rule such as "stop at intersections," it will not want individual drivers to view the rule in the way it does, as an imperfect means to an end. To prevent individual errors effectively, the rule must establish itself in the mind of the actors it governs as a reason for action that preempts further consideration of how to act.(10) It must assert that whenever an actor confronts facts that fit within the terms of the rule, the action the rule demands is the action the actor should take. We might call a rule of this sort a "serious" rule, to distinguish it from a rule of thumb.

   A rule of thumb is not really a rule at all: it is a piece of information or advice.(11) For example, the authority might announce a rule, "stop at intersections," together with instructions that citizens should view this rule as a well-informed opinion about how they can produce the best result. The problem with this method of governance is that the individuals who live under rules are rational creatures. They may not reason perfectly, but as human beings they are naturally inclined to apply whatever powers of reason they possess to the decisions that confront them. If an individual driver understands that his objective is happiness, or safe travel, and that the governing rule is only a rough calculation of how to reach that end, he has no rational choice but to make an independent assessment.(12) At that point, the risks of error the rule was designed to avoid are reintroduced in the decision-making process. Some drivers will decide correctly to deviate from the rule, but it is possible that more will make this decision incorrectly, and that travel will be less safe than it might have been if all had followed the rule.

   To some extent, the very announcement of a rule alters the balance of reasons for action. When the rule is issued, the gap between the rule and its underlying purpose immediately narrows, because now any violation will undercut the coordinating effect of the rule. In other words, enactment of the rule creates decisive reasons for doing what it requires in some cases in which, without enactment, the reasons for taking such action would be outweighed.(13) Yet as long as the rule serves some purpose beyond mere coordination, and is not a perfect mirror of that end, the gap between what the rule demands and its underlying goals will never disappear, and the assertion that actors should obey the rule in every case will never be quite true.(14)

   Correspondingly, individual calculations will change when a rule is announced, even if it is announced as a rule of thumb. An individual actor (depending on the level of her understanding) may credit the rule as an informed calculation of right action, and she may take into account that her own disobedience could foster disobedience by others.(15) Yet as long as she understands that the rule differs from its end, she will sometimes decide to violate the rule. If all individuals proceed in this way, and enough of them decide wrongly to offset the gains achieved by appropriate violations, the rule will not achieve what it was intended to achieve in the way of error correction and coordination.

   Thus, a rule often will be most effective, and its purpose best served, if it is understood as a serious rule--that is, as a statement of right action. A serious rule implies that it represents the correct balance of reasons in every case it covers, when in fact it is only a calculation of the best course of action for all actors to follow over a run of cases. There will be cases in which the actor's own calculation is right and the rule is...