© 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_1
1. Rules, Norms and Principles: A Conceptual Framework
Department of Philosophy, New York University, New York, USA
This chapter develops a conceptual framework for talking about the notions of rules, norms and principles. It is hoped that this framework will allow us to properly distinguish between merely verbal and substantive issues concerning these notions. It is argued that the substantive debate about rules is not about whether a rule exists, or what a rule is, but about what it takes for a rule to be a norm on behavior. One result of this way of looking at things is a recasting of the problem about rule-following: what is it that constitutes correct following of a rule in a case where there is no explicit intention to conform one’s behavior to a rule. Finally, some issues concerning the general problem of normativity of both rules and rule-following is discussed in the chapter.
This is the text of a talk that was given at the Conference on Rules that was held at the Jagiellonian University in Krakow in October of 2013, organized by Tomasz Gizbert-Studnicki. I have kept the informal and often highly schematic character of the presentation in preparing this version for publication. Large ideas are sketched rather than developed in any detail. I am grateful to the audience on that occasion, and to Jules Coleman, for helpful comments.
In looking at the literature on rules one is struck by two related observations: one is that different notions are often conflated; the other is that it is often hard to see when a dispute is merely verbal and when it is substantive. Part of the problem here is that ordinary language is not precise when it comes to the word ‘rule’—one can legitimately talk in different ways and so there is a danger of people talking past one another.
In this paper, I will try to suggest a framework for talking about rules that will allow me to clearly pose the issues that interest me, and that will help us distinguish between merely verbal issues about rules and substantive ones.
1.2 What Is a Rule?
1.2.1 Rules as Abstract Objects
Let me start with the following basic question: What is a rule?
We should start with the fact that, whatever rules are, it must be possible for them to be the sorts of things that are accepted, either by a person or by a community. It must be possible for rules to be accepted, even if some are not. That suggests that rules themselves should be thought of as contents, as the possible objects of intentional states of acceptance. (An intentional state is a mental state that has an intentional object. This is not to be confused with the notion of an intention, although intentions are, of course, instances of intentional states).
Now, contents are best thought of as abstract objects. Exactly what an abstract object is, as we will presently see, is controversial. But the idea is that, on this conception, rules belong with such objects as numbers, properties and propositions, rather than with concreta like tables or (token) books. If we say that rules are abstract objects, what kinds of abstract objects should we take them to be?
I’ll come back to this question below, but already we might be thought to face a puzzle: How could rules be abstract objects? Abstract objects, after all, are said to exist outside of time and space. That means that they can’t come in and out of existence. But, surely, we do often want to say that a rule came to exist when it didn’t exist before. For example, those who think that (legal) laws are rules will want to say that rules come to exist as a result of certain kinds of legislative activity and that those rules did not exist before. Another kind of example would be the rules of chess. Surely, an objector might insist, the rules of chess did not exist prior to the game’s being invented.
However, on an abstract conception of rules, we seem committed to rules’ existing atemporally and necessarily. How can we reconcile these two observations? One possible response to this problem might be to say that we do after all need to make sense of abstract objects coming in and out of existence. Some philosophers see the need to say this even in connection with abstracta that don’t concern the topic of rules.
For example, a number of philosophers who hold that concepts are abstract objects have expressed sympathy for the idea that some of these concepts could not have existed since the dawn of time, but must have been brought into being by the creative activity of human beings. While knowing no good alternative to thinking of concepts as abstract objects, such philosophers find it odd to think that a distinctively cultural concept, such as that of a piano, for example, or a high school prom, could have been around before there were humans. One might feel a similar discomfort with the idea of a certain type of musical composition, for example, the symphony, pre-existing its invention by human beings.1
This sort of temporal thinking about abstract objects does not appeal to me. I lose my grip on the distinction between abstract and concrete objects if I think of abstracta as having temporal properties. Moreover, I believe that we can do justice to our intuitions about the role of conceptual and artistic creativity within a framework in which we talk not about creating abstracta, but about selecting them, or discovering them. But no matter, we will see below that our puzzle about rule existence can be solved on either the temporal or the atemporal view.
1.2.2 Imperatival vs. Normative Content
Let me turn next to the question: If rules are abstracta, what kinds of abstracta are they?
One kind of abstract object that one might naturally think a rule might be, is a certain sort of normative proposition—a proposition that specifies a permission or a requirement. These, for example, are among what we call the ‘rules of chess’:
White must move first.
If one’s king and rook have not previously moved, and if the king is not currently in check, and if there are no pieces between the king and said rook, then, under those conditions and only under those conditions, one may castle.
Another kind of abstract object that is also often called a ‘rule’ is an imperatival content, or an instruction:
If C, write a 0, move to the next square and go into state S2!
If x is an email that calls for an answer and you have just received x, answer it immediately!
Both of these types of content have been called ‘rules.’ Yet they are quite different from one another. For example, normative propositions look to be truth-evaluable, whereas instructions or imperatives are not.
So, are rules abstract objects with normative contents, or imperatival contents? Which is it to be? I believe that it would be all right to say that a rule might be either an imperatival content or a normative proposition.2 This may come as a shock to some in the philosophy of law, because in that literature it is very common to insist that there is an important three-fold distinction between imperatives, rules and normative propositions, and to claim that there is a big issue whether laws should be thought of as consisting in the one sort of thing or the other.
To put things very roughly, John Austin argued that laws are imperatives with a certain pedigree; H. L. A. Hart argued that laws are rules with a certain pedigree; and Ronald Dworkin argued that laws essentially involve certain sorts of normative propositions, principles, in addition to rules.3