Imagine that you have rented a house at the beach.
When you arrive, you notice a sign in the foyer, which reads,
i. Leave your cares at the door.
Should you leave your cares at the door?
It depends on what your cares are and why you are visiting the beach. I
f your cares are not pressing and the point of the trip is relaxation, then perhaps you should leave your cares at the door.
If instead, you have come to the beach
because it is a quiet place to work on the things you care about, then you probably should not leave your cares at the door.
Of course, all of that would be true even if there were no sign enjoining you to leave your cares at the door.
Does the sign play a role in determining whether or not you should leave your cares at the door?
Of course, it might play a causal role in determining whether or not you do leave your cares at the door.
The reminder may put you in mind to relax.
But it is hard to see how the sign bears on the question whether you should leave your cares at the door.
After all, it is difficult to imagine that the owner of the house has standing to demand that you do.
And even if he does, it’s not clear that he m-intended (in Grice's sense) to make a demand through the sign.
He might just have liked the way it looked.
It would be a different story, of course, if your spouse told you to relax.
Her demand might give you a reason.
But the sign does not.
Now suppose that the sign says,
ii. No smoking.
Should you refrain from smoking?
To be sure, you have reasons not to smoke quite apart from what the sign says.
Smoking is harmful, to you and others.
But unlike the first sign, this one has normative consequences, at least assuming the owner put it there.
To the extent you are interested in avoiding conflict with the owner, the sign gives you a prudential reason to avoid smoking.
And it probably gives you moral reasons too.
The sign tells you that the owner of the house does not want you to smoke, and because smoke lingers behind, she has some stake in whether you do.
Indeed, the sign might even obligate you not to smoke, on the plausible assumption that the owner of a house has a right to decide whether people may smoke in it.
I mean that the owner may have this right simply as a matter of morality, quite apart from the operation of any legal system.
If you’re having difficulty with this example because you think that ownership is a purely legal concept, you should spend some time with a toddler, who knows
nothing about law, but has strong views about what’s his.
In the meantime, you could swap out the sign for a note placed on the door by a neighbour.
Of course, we might wonder whether he has done enough to invoke that right.
It may be that she should have given you notice up front if she intended to restrict your smoking, rather than leave it to a sign you would see only on arrival.
But for our purposes it does not matter whether you should avoid smoking, or, for that matter, leave your cares at the door.
The point of these vignettes lies in what I have not said about them.
In sorting through the normative upshots of these signs, we have not suggested that there is a distinct domain of normativity, or even quasi-normativity, unique to the rental house or its signage.
We did not, for example, suggest that the first sign generated a "rental house" LEGAL OBLIGATION to leave your cares at the door, separate and apart from whatever moral obligations it might have generated.
And I did not suggest that, from the second sign’s point of view, you were morally forbidden to smoke, whether or not the sign actually imposed such a LEGAL PROHIBITION.
Yet the accounts I gave of these situations do not seem impoverished for my failure to invoke this conceptual machinery.
Indeed, it is hard to see how the notion of a "rental house" obligation, or the suggestion that a sign has a point of view, would shed any light on the situation.
There is a sign that says you should leave your cares at the door.
It does not give you any reason to do so.
If instead the sign said
it would give you several reasons to avoid smoking, and perhaps A LEGAL OBLIGATION.
That is all there is to it, and we do not need to invoke any special kind of normativity, or quasi-normativity, unique to the rental house or its signage, in order to make sense of these situations.
Let’s complicate the story to see if anything changes.
Suppose that when you enter the rental house, you see a list tacked to the wall, labeled "Rules of the House." It reads:
1. No smoking.
2. Take the trash out when you leave.
3. Do not use the garbage disposal. It doesn’t work.
4. Check-out is 11:00 AM. If you stay longer, you will be charged for an additional night’s stay.
5. Have fun.
What are the normative upshots of the Rules of the House?
The fifth rule is similar to the sign telling you to leave your cares at the door. It might put you in mind to have fun, but
We used the word "rule" in different ways.
Sometimes, we use "rule" to refer to a certain sort of text.
I can ask, for example, if you have a copy of the rules, or if you have gotten a chance to read them yet. At other times, we use "rule" to refer to a certain sort of norm, or standard by which we can assess behavior. Rules in the first sense express rules in the latter sense, though the relationship between them is complicated, for several reasons. First, a rule (read: text) might be ambiguous, so that it fails to express a single rule (read: norm). Second, a rule (read: norm) might be expressed through different texts. And third, a written rule (read: text) might have many different rules (read: norms) associated with it. These might include: the norm that is expressed by the text; the norm that the author of the text intended to express; and the norm that the author of the text intended to impose on others by writing the text, among many other possibilities. In this Part, when I refer to the Rules of the House in my own voice (or to the particular rules that appear in that list), I am referring to the text posted on the wall, not any of the norms that might be associated with it. However, I will sometimes imagine characters talking about the Rules of the House in ways that make clear that they are referring to norms that they take the posting of that text to have made binding on themselves or others. It is important to remember that these characters may or may not be right about the normative consequences of the posting of that text; it may have had no normative consequences, or different normative consequences than they take it to have had.
It has no bearing on whether you should.
In contrast, the first four rules seem to have both prudential and moral upshots.
The fact that the owner took the time to write out the rules suggests that she cares about whether you do as they direct, and all four reflect matters about which the owner has standing to make demands.
The second rule is interesting.
It instructs you to take the trash out when you leave, but it seems likely that the obligation this rule generates is to take the trash out by the time you leave, not when you leave.
This is because it is hard to see any purpose to taking out the trash when you leave, so long as you do it beforehand and do not generate any trash after you do.
Though the owner of the house presumably has standing to demand that you take out the trash, the question whether you do it as you leave or a bit before does not seem to affect his interests, so it would be odd to attribute to him a right to determine the timing.
Or so it seems.
The interesting question is not whether I have this right.
It is whether something is missing on account of my failure to look for normative upshots of the Rules of the House that are neither moral nor prudential.
Once again, it is hard to see how positing a special sort of normativity, or even quasi-normativity, unique to the Rules of the House would shed any light on the situation.
So let’s complicate the story again.
Suppose now that the rules tacked on the wall are preceded by the following statement:
vi. The property manager is authorized to enforce the rules of the house by adding appropriate charges to your bill.
This is the first we have heard of the property manager.
If he has been lurking in the background all along, we might have thought him authorized to add appropriate charges to the bill even without this statement.
But if we would have had any doubt about the role of the property manager, this helps clarify matters. It indicates that the owner of the house has delegated authority to impose additional charges to the property manager, and it is
hard to see anything wrong with that, at least on the facts we have.
Exactly what charges the property manager may tack on is a tricky matter.
If you smoke or attempt to run the garbage disposal, it would seem appropriate to charge you the cost of repairing any damage caused.
A modest fee would likely be in order if you fail to take out the trash.
The fourth rule specifies that if you overstay the rental period you will be charged for an additional night. T
hat does not seem an egregious penalty, and the rule puts you on notice of it, so it is plausible that the property manager is permitted to charge you the sum specified, subject perhaps to a de minimis exception, if you run just a few minutes over.
Of course, the property manager may not PENALISE your failure to have fun, regardless of what the rules say.
What if the property manager adds an additional charge to your bill, but not for misconduct mentioned in the Rules of the House?
Does that entail that he has done something impermissible, on account of the fact that his mandate is limited to enforcing the Rules of the House?
No, probably not. I
f you knocked over a vase and the charge is to repair or replace it, it would be obtuse to object that knocking over vases was not against the Rules of the House.
The property manager would presumably be permitted to impose remedial charges of this sort in absence of the statement that he is authorized to enforce the Rules of the House, and it is not tempting to apply the maxim expressio unius est exclusio alterius here.
Subject, of course, to normal defenses (for instance, that the vase was negligently placed.
Now we have an official, of sorts, charged with enforcing the Rules of the House.
And we are starting to engage the sorts of arguments that occupy lawyers.
-- whether notice is required before a penalty may be imposed
-- whether a rule is subject to a de minimis exception; and
-- whether explicit authorization to engage in some acts implies a lack of authorization to engage in others.
But yet again, it seems we can describe and assess this situation just fine without imagining that there is a distinct domain of normativity, or quasi-normativity, created by the rules of the rental house.
And it is hard to see what benefit we’d get from invoking those notions.
But let’s give it another try.
Suppose you check out *a few minutes* late and the property manager says,
THE PROPERTY MANAGER (utterer):
Look, I don’t think this is fair.
I am OBLIGATED to charge you an additional night’s rent. T
hose are the rules of the house."
Is the property manager telling you that he has a LEGAL "rental house" OBLIGATION to charge you an additional night’s rent?
I find it difficult to imagine that he is, as there are much more plausible ways to interpret what he explicitly communicates -- We owe this to Hart and to Grice.
the property manager (the utterer) might think that he is LEGALLY obligated to do something he regards as unfair.
The utterer might think that the OWNER of the house has the legal right to set the charge and the conditions for imposing it.
That is, the utterer might see himself as more or less a bookkeeper in the matter.
If this is the property manager’s view, he might add,
x. I’m sorry. I’m just doing my job.
Another possibility is that the property manager MEANS (in Grice's sense) to communicate that he is merely OBLIGED (but hardly LEGALLY obligated -- but he is engaged in what Grice calls 'disimplicature': meaning less than you say) to add the charge, not legally obligated to do it.
That is, he might be trying to say that he is adding the charge to the bill, his reason (and motivation) being that he does not DESIRE (a psychological state) to risk reproach from the property owner for failing to do so.
If this is the property manager’s view, he might add,
"I’m sorry. I need to keep my job."
rather than any mention of 'the rules'.
Ever since Hart’s devastating critique of the jurisprudentialist (not the philosopher) John Austin, legal philosophers have guarded a distinction between being legally obligated and merely being just obliged, and helpfully so.
However, there is no reason to think that property managers are punctilious about Hart's
distinction, which does not seem to have filtered into common usage.
The first definition of "obligate" in the OED is:
i. To bind (a person) morally
ii. to put (a person) under moral obligation
iii. to constrain
iv. to compel
v. to oblige."
Obligate Definition, OXFORD ENGLISH DICTIONARY (3d ed. Mar. 2004).
Of course, the facts we’ve imagined are rather thin.
So I can’t say for sure how we should take what the property manager explicitly communicates, never mind what he conversationally implicates (to use Grice's distinction, that hasn't either filtered into 'common' usage, which is fine, since Grice ain't common and Hart ain't common).
But I do know this.
The property manager can navigate the situation that he’s in without supposing that the Rules of the House give rise to their own distinct domain of normativity, or that they have a point of view on how he should behave.
And because he has no need for those notions, it would be odd for us to employ them when we interpret his claim that he’s
LEGALLY OBLIGATED to charge an additional night’s rent.
But we can try one more time, flipping the scenario.
Suppose again that you check out late and that the property manager tells you:
xii. I am obligated to charge you an additional night’s rent.
This time, however, he adds:
xiii. I am NOT going to impose that charge because I think it unfair.
Is the property manager invoking a special sort of normativity, unique to the rental house?
Once again, I’m sceptical, since there are much more plausible ways to interpret what he explicitly communicates (or 'means', in Grice's usage).
As before, the property manager might think that given his role, he IS LEGALLY OBLIGATED to do what the owner of the house has instructed him to do, whether or not he thinks it fair.
If he is right, in refusing to impose the charge, he’s failing to live up to the responsibility of the role.
That may be unwarranted, but it’s a failing that is easy to understand, as people all the time feel conflicts between the roles they occupy and the decisions they would make if freed from the constraints of the role.
But of course, there’s another way to make sense of what the property manager says.
In referring to his LEGAL obligation to impose the charge, he might just mean to indicate that he feels compelled (obliged -- even though he did say 'obligated')to do so, even though he plans to resist.
Of course, we’d need to know more about the situation to know how best to interpret the property manager's utterer's meaning.
But once again, the property manager can navigate the situation without supposing that the Rules of the House generate a special sort of normativity, or even quasi-normativity, and because he can, we can, too.
We could go on, making these examples ever more complicated and law-like.
But that would get tedious, and we have no reason to think anything would change.
At every step, there would be moral and prudential upshots to the social facts that constitute the situation.
However, there is no reason to think that we would arrive at a point where we would have to posit a distinctive class of LEGAL "rental house" OBLIGATIONS to make sense of the situation.
There is no reason to think that we would have to attribute a point of view to a sign or a set of rules. And that should give us pause.
If we don’t need recourse to these ideas to understand the ways that people engage the rules posted in a rental house, maybe we don’t need to appeal to them to understand the ways that people engage law.