The Rules Made Me Do It!

Here’s a story ripped from the headlines.  Yesterday at the US Open, Novak Djokovic accidentally hit a linesperson with a tennis ball.  He had just dropped his serve at love, and – clearly frustrated – took a ball out of his pocket and knocked it behind him.  (He might have hit it a tad bit harder than usual, but sending a leftover ball to the back of the court after completing a service game is standard practice.)  A split second after thoughtlessly hitting it, Djokovic looked back to see it had struck a linesperson, and was clearly horrified to see what he had done.  After rushing back to apologize, a lengthy conversation with the tournament referee ensued.  The outcome was that Djokovic was defaulted from the match and tossed from the Open.    

I’m of two minds about this.  A longtime Federer fan, I’ll cop to a little schadenfreude for any misfortune that befalls The Djoker.  (What’s a good nemesis for, anyway?)  But as a human being interested in rules, fairness, and normativity, the decision strikes me as a mistake. 

Here’s a second case.  In the 2018 US Open Final, Serena Williams played Naomi Osaka.  Early on, Serena’s coach, Patrick Mouratoglou, was cited for nonverbal coaching.  This gave Williams a ‘code violation’—basically a verbal warning from the chair umpire.  Serena protested that she had not cheated, and the chair umpire admitted her point, responding, “I know that.”  From there, however, the match “descended into chaos”.  In the second set, Serena broke her racquet in frustration.  Because she had already been issued a formal warning, this time the rules required her to be docked a point.  Serena was incensed.  She declared the chair umpire, Carlos Ramos, to be a thief.  He issued a third code violation for “verbal abuse,” resulting in Williams dropping a game at a crucial moment. 

It’s easy to see things spiraled from what appeared to be a simple ambiguity.  When Serena initially talked to Ramos after Mouratoglou’s coaching violation, she had insisted that she had not cheated.  Ramos agreed that she had not cheated.  From the player’s point of view, they had settled their difference.  From the official’s point of view, the issue was not that a player had cheated, but that the rules demanded a code violation for a coach’s action.  So when the racquet incident came around, it could appear either as the “first” of Williams’s violations, or as the “second” violation assessed to Williams, depending on how you were counting.

My present concern is not to resolve what was or was not retracted by implicature of Ramos’s from-the-chair speech act, “I know that.”  Rather, my claim is that for the US Open to turn on niceties of this sort is ridiculous.  Serena herself was the first to make this point.  When Donna Kelso, the Grand Slam Supervisor, entered the court to explain how Ramos was following the letter of the law to an understandably upset Williams, Serena countered: “I get the rules, but I’m saying that it’s not right.”

Serena’s case is different from Novak’s.  The most basic rights are those protecting one’s physical person, so it matters that someone suffered harm in today’s episode.  The only physical damage done in the 2018 final was to Serena’s Wilson Blade racquet, which I strongly suspect she owned outright.  But anyone on the ground of a grand slam tennis match appreciates that tennis balls will be moving through the air.  Djokovic is the responsible party, as he also understood.  However, it’s hard for me – at least – to see how altering the course of the Open in response to a truly bizarre accident serves anybody’s interests (except, well, Federer’s – and so by extension, my own).  Like I said, I see both sides of this one.

Don’t worry about that.  Believe as you will about Novak and US Open rules.  I’ve taken my (and your!) precious time getting to it, but what I’m really after here is The Rules as a kind of normative banner.  In the wake of today’s decision, lots of commentators have insisted that the tournament referee had to throw Djokovic out because The Rules required it. 

Two points about this.  One: whenever anybody says “The rules require it!” I strongly recommend consulting the fine print.  Two: what The Rules require is not conceptually transparent to what’s right. Serena was too smart to be go in for that bit of bureaucratic doublespeak, and we should be, too. 

I teach a big intro class at a university.  Alas, there are rules.  Lots of rules.  My syllabus is full of them.  Yours probably is as well.  But here is the thing.  I – for one – have learned by sad experience that I’m just not clever enough to construct any set of rules such that their strict enforcement will serve the values I care about.  I don’t know quite why this is.  My experience is that enforcing the rules is bad for me, and for my most vulnerable students.  Now, you might think I haven’t thought hard enough about how to make the rules fair.  And maybe so.  But no matter what rules I put down, those rules aren’t even dry on the syllabus before Ambitious Students will have figured out how to maximize their interests within the game those rules constitute.  And because I have to grade on a curve, that’s not great news for not-so-ambitious students.  For whatever it’s worth, my very consistent experience is that the students who stand to win from The Rules are overwhelmingly upper-middle class or rich, white, and male.  Nothing against those students, who are within their rights to play by the rules.  But a system where you only get ahead by figuring out The Rules and playing hard within them will not be neutral in upon whom in confers benefits and burdens.

I’ll end with a jeremiad.  I have met The Rules.  I hate them.  Including my own.  Sometimes I feel a temptation to enforce The Rules against a student whom I really feel has it coming.  “They called me a thief!” I’ve said in my own way.  But when I’m in that state, I’m not seeing things right.  People I trust have to tell me to suppress my vanity, to let go of the rules.  I have never regretted following their advice.  I’ve also had students try to enforce The Rules against themselves.  (Curiously, never the same students eager to use the rules to get ahead.)  That’s not good, either.  I don’t work for The Rules, and nor should they.  Were we created for the syllabus, or the syllabus for us?   

What’s my thesis?  When someone tells you they are just following the rules, it’s also true that they are following the rules.  We cannot divest ourselves of responsibility for our actions by saying the rules made us do it.  They didn’t.  There’s a question about what the rules say, and there’s a question about what’s right.  Running those questions together is more dangerous than a flying tennis ball.

The Counterintuitiveness of Authority

"Authority" refers to a supposed moral power some people have to impose an obligation in others through fiat. For instance, if the king commands you to jump and you acquire an obligation to jump in virtue of that command, then the king has authority over you. If the democratic legislature issues a law criminalizing coke, and you thus acquire an obligation not to snort coke, then the democratic legislature has authority over you. 

(Don't confuse authority with legitimacy, which the supposed permissibility of creating and enforcing rules. A government might be legitimate but not authoritative.)

Most people believe some governments have authority over some people over many things. For instance, they think that they are obligated not to snort coke because the government said no. 

It's one thing to say that you have a duty to pay a reasonable tax toward a genuine and needed public good or to drive near the speed limit. But what's odd is that people believe that governments have significant authority to override rights or to force us to permit them to commit injustice. 

Why would anyone think that? After all, on their face, none of the major theories of authority seem to imply this. Consider:

1. Consent theory/social contract theory holds that government has authority over you because you make some sort of binding promise or hold some sort of contract with others to obey the government.

Problem: Promises to commit injustice or allow injustice (that you can easily stop) aren't binding, ever. If I promise to let Uncle Sam kill my kids, or to kidnap them and send them to kill other people's kids, when Uncle Sam shows up, I am obligated to intervene. My promise has no moral force, even if Uncle Sam gave me favors and benefits in exchange for the promise. The fact that I made such a promise simply shows I'm a rotten, vile person, or at best deeply confused about right and wrong. 

Duties don't disappear by fiat or in because you accepted benefits from others. There isn't some special escape clause from your moral obligations that makes them vanish when you create a compact with a third party.

I can maybe make a binding promise or enter into a contract to allow Uncle Sam to hurt me in various ways, but I can't relinquish my obligations to respect others' rights, to give them what they deserve, or to act beneficently toward them, in virtue of making a promise. If I owe it to you to rescue you from Uncle Sam before I make any promises to him, then I continue to owe it to you to do so even if I promise not to help you.

2. Good Samaritan theory: Holds that government has authority over you because giving government such authority is necessary for you to discharge your obligations to help others and provide easy aid. 

But how would deferring to injustice, permitting injustice, or aiding and abetting injustice help promote your obligations to help others and provide easy aid? 

I mean, I can construct hypothetical cases where it would. Imagine that the zombie apocalypse virus is spreading. Thanos credibly offers to save the world, but only if you outlaw listening to Taylor Swift, whom he hates. He credibly can renege on saving the world if we don't obey the new laws forbidding anyone from listening to her. Swift. Fine. Take the deal. 

But when people try to argue real life governments are like this, it seems implausible. If the government wants us to let it spy on or murder innocent people, it's bizarre to think Good Samaritanism would explain why, After all, being a Good Samaritan means, well, helping.

3. Fair Play: Says you have to do you fair share to maintain public goods and principles that everyone benefits from.

Problem: Like the last theory, it's unclear why this would require you to promote evil, bad, harmful, or unjust things.

To borrow an example from Michael Huemer: Suppose we're on a sinking boat. We can stop it from sinking only if people bail out water. Suppose Mike comes up with a fair and equitable scheme for dividing up the water-bailing duties. We should go along with it. But if Mike also adds, "In addition to bailing out water, I need all of you to self-flagellate, abstain from listening to Taylor Swift, and to report any Mexicans you see to me so I can attack them later," we aren't obligated to do that, too. We're only obligated to do our fair and equitable share in bailing out the water. 

4. Raz's theory: Raz claims that the normal way to show one person has authority over the second is if the second person is more likely to comply with the reasons which apply to him if he follows the dictates of the first person than by trying to follow those reasons directly. For instance, suppose utilitarianism is true, and your friend Bob is much better at calculating consequences than you are. Bob is also honest and trustworthy. You should follow Bob's advice rather than decide for yourself.

Problem: It's hard to see how this would bind you to act wrongly. You don't have independent moral reasons to violate people's rights, tolerate right's violations, tolerate injustice, and so on. By complying with unjust laws or unjust political actions, you are in the first instance not complying with the moral reasons which apply to you, by instead thwarting or ignoring them.

Now, I realize that defenders of these theories often acknowledge some of these problems and try to overcome them. (I think they also realize they are not widely seen as having successfully done so.)

The Indispensability of Unilateral Coercion

Many theories of political authority are grounded in an argument about solving a coordination problem. Sometimes people talk about public goods like the protection of property, maintaining roads, or pollution mitigation. These versions of the arguments are weak because there are so many ways of overcoming these coordination problems without centralised coercion. The stronger argument is one drawn from Kant; it is not the provision of any kind of beneficial public good or service that we need political authority for, it is the existence of law itself. Even if we believe in natural law, and even if we believe everyone knows the content of the natural law, and is motivated to follow it even when it is not to their direct benefit, we still need a human-made positive law, and a state that has political authority to create, interpret, and enforce it. Why?

            Well, Jeremy Waldron thinks there can be disagreements within the bounds of reasonable interpretation of the natural law, and where that happens, we need to know that there is one interpretation that we will all be forced to follow. It is more important that we coordinate on the same version of natural law, than we follow a morally perfect version of the natural law, because the whole point is to avert a situation in which we regard ourselves and each other justified in enforcing our own interpretation of the law. That would lead to a situation in which no one can trust one another, and society falls apart.

Why can’t the strongest person just credibly signal to all the others that his interpretation will be the one the flies, and the people on his pay-roll will enforce it? This will provide convergence on one reasonable interpretation of the moral law that is needed for people to trust one another, and make the most of their freedom in a pro-social context.

            This won’t do because because the interpretation and execution of the moral law in this scenario is unilateral – it emanates from the intentions and actions of an individual who thereby has power over everyone else. Even if there exist incentives that can be relied upon to ensure this agent maintains a reasonably just system of coercion such that it really is institutionally robust, that fact that is unilateral raises a moral problem. Even if the other members of his society look like they are enjoying freedom as is consistent with everyone else’s freedom under law, they are not, because their freedom is subject to the will of this ruling individual agent. Being subject to unilateral coercion, whatever its effects, is a state of unfreedom. Having the socioeconomic autonomy to pursue one’s goals freely is not enough, one must also have political autonomy to be truly free, and that means not being subject to another individual’s will. The whole edifice of their freedom, as robust as it may be, is dependent upon this ruling agent’s unilateral will.

            What political authority (de jure not de facto) does is execute coercion omnilaterally. Through something like a democratic state, we all coerce ourselves and each other together, in a way that provides a just framework of coercive laws, but without rendering anyone subject the coercive will of any given individual. The moral law must be interpreted and enforced omnilaterally by an agent authorised by everyone. That way, society coerces itself (a prerequisite for freedom and justice), rather than individuals coercing one another (a condition of private domination).

            I think that a version of this account of political authority is given in almost all democratic theories thereof, including public reason liberalism, neo-Roman republicanism, and deliberative democratic theories.

Assume this is all true. I think unilateral coercion is still indispensable to getting political authority off the ground because it is sometimes going to be necessary to generate the coordination that is itself has political authority.

            Yesterday Jason Brennan wrote a post showing that, when the mode of coordination itself is morally arbitrary, but coordination of some kind is morally essential, it is the actual mode of coordination that emerges that has political authority – which is to say we are duty-bound to comply with it. If, for example, a state made it the law to drive on the left, but everyone drives on the right, and expects others to drive on the right, and believes that others think they ought to drive on the right, one would have a duty to comply with this convention rather than the one’s laid down in the positive law of the state. Equally, I think, if society converges on some reasonable interpretation of the moral law in a similarly robust way that is at odds with the positive law, our duty is to comply with society rather than the state. It would erode the trust that grounds the system of coordination that itself grounds our socioeconomic autonomy.

            It seems empirically highly likely and at a bare minimum in principle possible that unilateral coercion could be successful in generating coordination on which side of the road to drive, or which version of contract law to abide by, in such a way that people expect one another to comply with this version of rules and believe that others expect it of them. Once that convention is sufficiently off the ground, it has political authority – everyone is duty-bound to comply with it. Nonetheless, it is the seed of unilateral coercion.

            Imagine an isolated island in a state of nature. Simultaneously, a man arrives with an army calling himself King William, and a group of natives form an organisation called the Anglo-Saxon and Celtic People’s Democratic Alliance. King William uses all his scribes and soldiers to create and enforce a system of private law, and is so successful due to the coercive capacity at his disposal that all the people on the island comply, and come to expect others to comply, in a way that rules become, in large part self-enforcing. Everyone trusts that everyone else will obey these rules and they get on with their lives. Meanwhile the ASCPDA is calling upon the people of the island to participate in meetings in which a different version of private law will be imposed upon the land such that everyone has an opportunity to determine the content of these laws. Rather than King William’s will, it will be everyone’s will together that determines the shape of coercive law. However, given that William’s system is already in place, is already robust in such a way that everyone can be trusted to act in a way that facilitates reciprocal external freedom, acting in accordance with the decisions of the ASCPDA seems to be a violation of one’s duty. Defying the King’s law involves acting upon a different reasonable version of the moral law that no one else converges on or expects one to act upon. If coordination is the output we want, unilateral coercion may sometimes be the thing that gets us there before omnilateral coercion can.

            There seems to be two replies the friend of omnilateralism could give. The first is that political autonomy trumps socioeconomic autonomy, and therefore one is duty bound to act against a system of coordination if it originates in a unilateral will, in order to try to create an omnilateral system of coercion. This does not seem plausible to me. Surely, it is more important that people have some kind of legal rights that they can depend on, and plan their lives around than that they self-determine the law the grounds those rights. Indeed, in her new book Anna Stilz – a staunch defender of self-determination – agrees that the protection of “basic justice” is more important than political autonomy, and cannot be thrown under the bus in search of self-determination. It is incumbent on a self-determining organisation to show that in addition to being self-determining, they can also protect basic justice at least as well as the current unilaterally coercive agent.

            The second reply is that the demand for political autonomy kicks in once basic justice is secured. It is incumbent upon moral agents to reform their political order from the inside to make the legal order it generates count as an omnilateral one. This reply seems plausible to me. But it requires wholeheartedly admitting that unilateral coercion can be necessary step to get us into a state of coordination from which we can then progress to a more democratic or self-determining one, as opposed to a non-starter. Political autonomy is something to aspire to, rather than a pre-requisite of political authority.

            Beyond sometimes being necessary to getting a robust system of coordination going, unilateral coercion is also necessary to creating institutions and organisation that can act on the omnilateral will. Some individual or group has to unilaterally take up some model of what self-determination and democracy mean in order to coordinate with other pro-democratic reformers, and prior to their installing their system of omnilateral coercion, it cannot be said to really be omnilateral, it is just the private and shared will of a group of democratic campaigners. Even if they are operating in a state of nature and creating a system of law from scratch, someone has to call the first meeting, someone has to decide who gets to speak first, etc. It is hard not to think that the use of unilateral coercion may sometimes be the only way such matters get settled, even when the ultimate output is a truly omnilateral system of government.

            Personally, I think that if a society trusts one another to converge on a system of rules, then it can be said to be omnilateral, since constant coercive intervention is not necessary to bring them all into line, I think this is pretty much as close as you can get to a system in which each person can be said to will the overarching order. But even if you have a more defined and substantive notion of the political procedures necessary for a legal order to count as omnilateral, you have to at least admit that unilateral coercion may often be better and getting the coordination that the theory of authority is supposed to be all about securing, and the unilateral coercion is necessary to put and omnilateral system in place.

Authority, to a certain extent, depends upon prior, successful unilateral coercion. Someone has to be the first mover in any coordination game. It is the ugly truth of the fact of coercion in human social orders that sometimes this means people just get to exert power over the rest of us. To think that you could get a system of coercion without anyone ever having any morally problematic power is to reject politics.

I think the upshot of this is that on a view of political authority that places socioeconomic coordination at the centre will have to admit that sometimes warlords, private defence agencies, tribal patriarchs, colonists, absolutist monarchs, have genuine political authority, when it is their unilateral execution of coercion that offers the best route to coordination under the circumstances. We’re back to Hobbes, but not quite.

It also means that civil society itself – where it just endogenously converges on some socioeconomic order – has political authority without any rulers. Where each person expects to be coerced in one particular way, and trusts that others will comply with these coercive constraints, there is convergence on a system of coercion without any exogenous ruler, and the order itself has authority, rather than any ruler who supposedly provides the order.

Even if political autonomy is a distinctive political good, under the right circumstances, stateless societies as well as all the other reviled forms of social order mentioned above will be authoritative to the extent that there is no democratic alternative than can secure coordination at least as well as the status quo.

 

 

Solving Coordination Problems: Still Not Authority

"Political authority" refers to a supposed power governments have to induce in others a duty to obey or comply with various commands, laws, edicts, rules, and regulations. For a government to have authority over you, when it commands you/issues a law telling you to do X, then you must do X because it told you to, or perhaps the fact that it told you at least gives you additional strong moral grounds for doing X.

The authors of this blog are generally skeptical that governments have authority. Of course, this one post won't demonstrate they don't. 

But here's an example in which it might seem obvious that governments have authority, but in fact, they don't. 

Consider the problem of coordinating which side of the street to drive on. For the sake of argument, let's assume that the choice of driving on the left or the right is, at first glance, arbitrary. It turns out that neither way of driving is safer or more efficient. (If it turns out that driving on the left is 50x safer and 10x cheaper, then countries would be obligated to switch or choose that.) Imagine we're starting from year zero, and there is no convention at all. We have to pick a side.

It seems reasonable here to select some sort of coordination mechanism. If we had a government, it might just announce, "We selected the right side." Maybe everyone would be obligated to go along with that decision, because that solves the coordination problem. So it seems government has authority here.

But not so fast. Even in this case, what actually does the work is not the government issuing the decision, but the people choosing to follow the command/edict/law. 

To show why: Imagine that immediately after the government said, "Everyone drive on the right," everyone instead spontaneously drove on the left, all the signs were placed for left-lane driving, and so on. Suppose the government tried to enforce right-side driving to no avail. Which side should you drive on? The left, obviously. If you drive on the right, you'll follow the law, but you will unjustly endanger others. If you drive on the left, you'll break the law--and good thing, because in this case, breaking the law is obligatory so as to avoid endangering others.

What matters in this case is whatever actually solves the coordination problem. If everyone happens to be driving on the left, then that's what you should do.