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The act of creating a rule: principled decisions

5 October, 2015 - 13:00

Variation two, R\rightarrow X+Y , refers to a "wholesale" decision, the act of making a rule. Rule-making is wholesale in the sense that one is not merely deciding how to act in a particular case, but rather in a whole set of possible cases. (The distinction between the logic of A\rightarrow X+Y and R\rightarrow X+Y is analogous to that made by some philosophers between "act utilitarianism" and "rule utilitarianism".)

When there is a rule R that has thus been arrived at, by evaluating the benefits and side effects that observing it is expected to produce, action A in a specific case is not determined by considering goals and side effects as it is in the case of ad hoc action. Instead, the specific action is deduced from, or at least limited by, the rule. (Note that the broken arrow in the following expressions stands for logical implication rather than the causation indicated by the "solid" arrow.)

R\rightarrow A ... Under circumstances C rule R implies or requires us to take action A.


R\rightarrow C ... Rule R requires that we act within certain limits, as if there were artificial circumstances C in addition to any natural limits to our action.

As an example of the situation depicted by R\rightarrow A consider the double jeopardy clause in the Fifth Amendment. As interpreted by the courts, it is an absolute bar to retrying a person who has been tried and acquitted of a given charge. If, under such circumstances, the federal government attempts to retry the person on the same charge, the judge would be obliged by this rule to dismiss the indictment.

An example of the meaning of R\rightarrow C can be found in a judge who is fixing a sentence governed by rule R. His decision is not deduced from the rule, but is chosen on one ground or another from among the set of actions compatible with the rule. The legal punishment for a certain crime may be expressed as a set of upper limits, "not more than USD 10,000 fine and 5 years in jail", to what a judge can do to the convicted person. Sometimes the rule will also provide a floor as well as a ceiling to the judge's alternatives.

The differences between the action A which results from an ad hoc decision, A\rightarrow X+Y , and from a rule, R\rightarrow A, etc., are by no means minimal. For example, when a hijacking or kidnapping has occurred, the best action in the specific case may seem to be to capitulate to the terrorists' demands. Otherwise, lives may be lost. However the best rule for dealing with hijackers may be to refuse to deal, because dealing encourages more of the same bad type of actions, increasing insecurity and risk to life in general. Rule-making forces us to consider the broader picture and ramifications of our individual actions.

One further characteristic of arriving a specified actions via rules rather than from direct evaluation of their expected consequences is that the roles of rule-maker and rule-applier can be separated. The separation between the legislative and judicial powers in the US Constitution reflects a decision that in government this separation of roles ought to be the case.