© Springer International Publishing Switzerland 2015Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_15
15. Rules as Reason-Giving Facts: A Difference-Making-Based Account of the Normativity of Rules
Institutum Iurisprudentiae, Academia Sinica, Academia Rd. Sec. 2 No. 128, 11529 Taipei City, Taiwan
Department of Philosophy, National Chung Cheng University, University Rd. Sec. 1 No. 168, 621 Chia-yi County, Taiwan
In his “Reasoning with Rules,” Joseph Raz raises a puzzling question about the normativity of rules: “How can it be that rules are reasons when they do not point to a good in the action for which they are reasons?” In this paper, we put forward a difference-making-based theory of reasons to resolve Raz’s puzzle. This theory distinguishes between reasons and reason-giving facts, and we argue that rules are not reasons but rather reason-giving facts. Based on this distinction, we recast and criticize some of Raz’s theses about the nature of rules, such as their opaqueness, the normative gap, and the breakdown of transitivity in the content-independent justification of rules. Finally, we propose a difference-making-based account of the reason-giving force of rules.
KeywordsDifference-makingNormativity of rulesRazReasonsReason-giving facts
15.1 Introduction: Raz’s Puzzle About the Normativity of Rules
The aim of this paper is to give an account of the normativity of rules in terms of reasons. A representative view of this approach is that of Joseph Raz, who writes:
The normativity of all that is normative consists in the way it is, or provides, or is otherwise related to reasons. The normativity of rules … consists in the fact that rules are reasons of a special kind …. (Raz 1999a, p. 67)
The claim that rules are reasons for action seems at odds with the value-based theory of reasons advocated by Raz, when he says that “reasons for action are facts that establish that the action has some value” (Raz 2011, p. 70). As Raz observes,
Yet rules are unlike most other reasons. Most reasons are facts which show what is good in an action, which render it eligible: it will give pleasure. It will protect one’s health, or earn one money, or improve one’s understanding. It will relieve poverty in one’s country, or bring peace of mind to a troubled friend, and so on. What is the good in conforming to a rule? (Raz 2009, p. 205)
Raz thus raises a puzzling question about the normativity of rules: “How can it be that rules are reasons when they do not point to a good in the action for which they are reasons?” (Raz 2009, p. 205). He calls this puzzle the opaqueness of rules. For example, the fact that smoking in a public place damages others’ health is a reason not to do it, because this fact shows the good in refraining from smoking in a public place: it will protect others’ health. By contrast, suppose that the fact that there is a legal rule prohibiting smoking in a public place constitutes another reason not to do it. This fact tells us that it is legally required to refrain from smoking in a public place, but it does not indicate that there is some good or value in the action required by this rule.
Of course, one can circumvent Raz’s question by denying that reasons depend on values, but we will not adopt this strategy here. Rather, we will draw on a difference-making-based theory of reasons, of which the value-based theory is just a special case, to resolve his puzzle. Although we think Raz is right when he says that the normativity of rules is to be explained in terms of reasons, we will argue, based on this difference-making account, that rules are not reasons but reason-giving facts.1 In terms of rules as reason-giving facts, we shall reformulate Raz’s puzzle about the opaqueness of rules and then provide an alternative way to account for the normativity of rules.
15.2 Reasons and Reason-Giving Facts
The main idea of the difference-making-based theory of reasons is that reasons are difference-making facts. Consider the fact that smoking in a public place damages others’ health. This fact is a reason not to smoke in a public place. When one asks whether there will be any difference if one does not smoke in a public place, the answer is positive: the health of other people will not be damaged. Therefore, this fact is a difference-making fact in that smoking in a public place makes a difference to whether or not others’ health will be damaged. To take another example, driving to work will lead to an increase in your gasoline expenses, as opposed to if you take the metro. This is a difference-making fact because it shows that driving to work makes a difference to your gasoline expenses. It is therefore a reason for you not to drive to work.
This idea can be made more precise as follows:
(Reasons) R is a reason for A to φ if and only if R is a fact that A’s φ-ing makes a difference to X.
There can be varied versions of the difference-making-based theory of reasons, each corresponding to a different way to characterize X in Reasons. For example, if X is characterized as the fulfillment of A’s desires, then we get a desire-based theory of reasons. A value-based version of the difference-making-based theory can be formulated as follows:
(Value-Based Reasons) R is a reason for A to φ if and only if R is a fact that A’s φ-ing makes a difference to whether a good or valuable outcome occurs, in other words, A’s φ-ing leads to some good or valuable consequence.
Such a difference, characterized in Value-Based Reasons, might be called “evaluative difference.” In this regard, Raz’s value-based theory of reasons can be viewed as a special case of the difference-making-based theory of reasons.
The motivation to define reasons as difference-making facts is to capture the idea that normative reasons can be, and must be, practically deliberationally useful. By “being practically deliberationally useful,” following DeRose (2010, p. 25), we mean that an agent can make use of a difference-making fact to deliberate over whether or not to perform a certain act as a way of producing (or preventing) some consequence. For instance, you can deploy the fact that driving to work leads to a rise in your gasoline expenses to consider whether to take the metro as a way of saving money. Likewise, the fact that smoking in a public place damages others’ health can be used to deliberate over whether to extinguish a cigarette before entering a public place in order to prevent damage to others’ health.
The deliberational usefulness also takes the explanatory dimension of normative reasons into account. A normative reason for A to φ, as Broome (2004) defines it, is a fact that explains why A ought to φ. By means of pointing out what difference an act makes, difference-making facts provide quasi-teleological explanations of ought facts. For example, an explanation of why you ought not to drive to work is that your gasoline expenses will increase if you drive to work. For the sake of reducing your gasoline expenses, you ought not to drive to work. In the same way, the fact that one ought not to smoke in a public place is explained by the fact that this act causes damage to others’ health; in order to avoid this undesirable consequence, one ought to refrain from smoking in a public place.
An explanation provided by a difference-making fact differs from one that a difference-maker provides. That the health of other people will be damaged may be explained by the fact that someone smokes in a public place, given that the damage to others’ health is a difference “made” (or “caused”) by smoking in a public place. In this sort of explanation, which may be called the canonical explanation, the explanans is a difference-maker, that is, an action (or a fact) that makes a difference to whether or not some consequence (the explanandum) occurs.2 By contrast, the explanans in an explanation of why one ought to φ is not a difference-maker but rather a difference-making fact that one’s φ-ing makes a difference to whether or not some consequence occurs. In such an explanation, which may be called the inverted explanation, the explanandum is a fact that a certain action, which plays the role of the difference-maker in a difference-making fact, ought to be done. Reasons as inverted explanations are useful for practical deliberation in that they can be so deployed in order for agents to deliberate the consequences of actions for which they are reasons, thereby providing the intellectual base for normative considerations concerning whether one should perform a certain action for some reason.
In light of practically deliberational usefulness and inverted explanations, reasons are to be distinguished from reason-giving facts. A reason-giving fact is not a difference-making fact, but rather a fact in virtue of which a difference-making fact obtains. For example, suppose the price of gasoline goes up. This fact does not point to what difference that an action, such as driving to work, makes, but it provides the background condition for the difference-making fact that driving to work leads to an increase in your gasoline expenses: Were the price of gasoline not to be raised, driving to work would not make a difference to your gasoline expenses. Therefore, the fact that the price of gasoline goes up, though it is not a reason, gives you a reason not to drive to work. Likewise, while the fact that smoking in a public place damages others’ health is a difference-making fact, the fact that tobacco contains toxic chemicals is not. It is, however, the fact in virtue of which smoking in a public place causes damage to others’ health. The fact that tobacco contains toxic chemicals is therefore a reason-giving fact.
Reason-giving facts can be defined as follows:
(Reason-Giving Facts) The fact P gives A a reason to φ if and only if, in virtue of P, A’s φ-ing makes a difference to X.
Since a reason-giving fact does not point to any difference an action makes, it is not practically deliberationally useful, nor can it provide an inverted explanation in its own right. Consider the following statement: “Because the price of gasoline goes up, you ought not to drive to work.” This is merely an enthymematic explanation. To deliberate over whether to perform a certain action, such as driving or not driving to work, you cannot rely only on the fact that the price of gasoline goes up, because it does not show what consequences will be produced (or prevented) by driving to work. Without resort to the difference-making fact that driving to work causes an increase in your gasoline expenses, it is unintelligible why you ought not to drive to work just because the price of gasoline goes up, and we do not know what reasons you really have not to drive to work, either. In other words, in order to provide an inverted explanation of why you ought not to drive to work, we still have to appeal to a difference-making fact that obtains in virtue of a rise in the price of gasoline, and this fact accounts for the reason-giving force of the fact that the price of gasoline goes up.
15.3 The Opaqueness of Rules
Let us return to the opaqueness of rules. If rules are reasons, then the fact that an action is required by a rule has to be a difference-making fact. Rules automatically make a “difference” in one sense: they distinguish between what is correct and incorrect, or what is legal and illegal. An action is correct if it complies with a rule and is incorrect if it does not. However, the difference in this sense only reveals a feature of an action, that is, being correct (or incorrect), and is not deliberationally useful because it does not point to the consequence to which performing a correct (or incorrect) action will lead. In other words, the fact that an action is required by a rule is not the one that an agent can employ to deliberate over whether to perform it as a way of producing or preventing a certain consequence.
For example, smoking in a public place is illegal because it is banned by a legal rule, but the fact that it is illegal to smoke in a public place does not show a difference this act makes, let alone any valuable outcome of refraining from it. Alternatively, consider Raz’s example: a chess club’s rule that members are entitled to bring no more than three guests to the club’s social functions. According to this rule, it is correct to bring three or fewer guests and incorrect to bring a fourth guest. However, from this rule, we cannot see any practically significant difference between bringing three and bringing four or more guests, nor can we discern that bringing fewer than three guests will lead to any desirable consequence.
In terms of the difference-making-based theory, Raz’s puzzle about the opaqueness of rules can be generalized in the following question: How can rules be reasons if they do not show what difference the actions they require make? In fact, since reason-giving facts are not difference-making facts, they are all opaque in this sense. For example, one might ask: “How can the fact that the price of gasoline goes up be a reason for you to not drive to work, even though it does not point to any difference this action makes?” or “The fact that tobacco contains toxic chemicals does not show what difference smoking in a public place makes, how can it be a reason not to smoke in a public place?” Although these facts are not reasons (that is, difference-making facts), they can still be reason-giving facts inasmuch as there are some difference-making facts which obtain in virtue of them. By the same token, if reasons are difference-making facts but rules are not, the straightforward answer to the question above is that rules are not reasons. Even though rules are not reasons, this should not preclude rules from being reason-giving facts.
With regard to the normativity of rules, instead of questioning whether rules are reasons, perhaps it is more sensible to ask how rules can be reason-giving facts. In other words, the problem about the normativity of rules will shift from “How can it be that rules are reasons?” to “How can rules give reasons?” Applying Reason-Giving Facts, we get the following condition for the reason-giving force of rules: