Once upon a time, there was an isolated village in the mountains. It had a large electronic billboard. Every so often, unsigned demands appeared on the billboard. Most of these demands seemed reasonable, and the villagers find themselves with an ingrained feeling that they should do what the billboard says, and typically they do so, often deferring to the billboard even when the reasonableness of its demands is less clear. There were two main theories about the billboard. Some villagers said that thousands of miles away there was an authoritative and benevolent monarch who had cameras and microphones hidden around the village, and who issued commands via the billboard. Others said that there was no monarch, but centuries ago, as a science fair project, a clever teenager wrote a machine learning program that offered good advice for the village—a program that wasn’t sophisticated enough to count as really intelligent, but nonetheless its deliverances were quite helpful—and hooked it up to the billboard, and eventually the origins of the system were largely forgotten. The evidence is such that neither group of villagers is irrational in holding to their theory.
Suppose that the monarch theory was in fact the correct one.
Question: Did the monarch’s demands constitute valid commands for the villagers who accepted the software theory?
Response: No. Anonymous demands are not valid commands even when they are issued by a genuine authority. A valid command needs to make it evident whom it comes from. When the authority chooses not to make a subordinate be aware of the demand as an authoritative command, the demand is not an authoritative command.
Objection: Given the widely ingrained feeling that the billboard should be obeyed, even the villagers who accepted the software theory had a duty to obey the billboard. That was just part of the governing structure of the village: to obey the billboard.
Response: Perhaps. But even so, the duty to obey the billboard (at least over the villagers who accept the software theory) wasn’t grounded in the monarch’s authority, but in either the authority of the individual’s conscience or the law-giving force of village custom.
Question: Did the monarch’s demands constitute valid commands for the villagers who accepted the monarch theory?
Response: I am not sure. I think a case can be made in either direction.
9 comments:
It seems obviously false to say that valid commands need to make their source evident; our assessment of the source of commands is overwhelmingly based on independent testimony or inference from context, not on the commands themselves being somehow tagged in an evident way with their source. Valid commands don't even need to be made evident themselves. If you cross the border into a foreign country without realizing it, you are subject to its laws whether you knew it or not because it has jurisdiction. This is, of course, different from saying (for instance) that the source has to be in-principle discoverable. But we don't generally require in-practice actual discovery, simply because there are too many factors that can interfere with it even under the best conditions, even though we do often consider its lack to be a mitigating (but only when inevitable a completely excusing!) circumstance.
The most natural theory of obligation for anyone who has a divine command theory sees to be precisely this, in fact: valid obligations are established simply by the obligating authority promulgating them; any failures of reception may excuse to the extent that the ignorance approaches invincible, but without affecting the validity of the obligations. This has the advantage of being close to how we actually treat laws and monarchical decrees. (Despite its many problems, divine command theory almost always has the advantage over other theories of giving a unified account of real-world obligations.)
Alex
Thé answer to your last question depends on whether they monarch is truly authoritative or not
I don't see how the distance of hiddeness of the monarch has any relevante.
Brandon:
Promulgation requires making the commands reasonably accessible to those who are bound by them. I was assuming in this post the claim (though I myself don't hold it) that God is hidden in the sense that a significant number of people do not believe in God and yet are quite reasonable. This makes one worried that the accessibility bar for promulgation has not been met. What further raises the accessibility bar for promulgation is that it would be quite easy for God to inform individuals of the commands when they apply to them (e.g., a voice saying: "I, God, forbid you to...").
Suppose you're in the army and as you are walking in a dark alley, you hear a voice telling you to stop. You don't know if the voice is a friend, an enemy or a commanding officer. Suppose that in fact it IS a commanding officer, who knows well that you don't know whom the demand is coming from. If the officer does not inform you whom the demand is from, I do not think it is a valid command.
The typical reasonable person has a rough idea of the laws and of how they are apt to vary between jurisdictions and circumstances. For instance, one knows that in different states, there will be subtle differences in certain kinds of traffic rules--default speed limits, left turns into one-way-streets, etc.--and hence when one crosses state lines one should inform oneself regarding such cases, or else be more conservative in one's driving. Similarly, one knows that there are various special circumstances that call on one to inform oneself of the relevant laws. Thus, I am quite confident that if I should wish to get into the business of selling explosives, I shouldn't proceed until I have made a fairly serious study of applicable state and federal regulations.
On the other hand, I am also quite confident that if I should choose to wear green shoes, I do not need to research whether there are relevant laws . And if there happened to be a state law saying that anyone who wears green shoes must not wear a blue-and-red polka dot shirt, a law that was never publicized but buried in the middle of stuff that the ordinary person never reads, I would say that that has not been promulgated.
I think failures of promulgation aren't merely hypothetical. For instance, for many years, in many states, the state law required people to keep track of all their out of state Internet purchases in order to remit use tax to their state on a regular basis. Here in Texas, there was no attempt made to inform the populace of this legal requirement. (In some states, they did better at informing, by linking the use tax reporting to the state income tax return, but in Texas we have no state income tax.) Now, if you ran a business and had to deal with your business's sales tax, you would know, because the use tax is reported on the same form as the sales tax. But the typical private individual probably had no idea of this at all. I am strongly inclined to think the requirement of use tax payment--with the exception of interstate purchases of items like cars (people generally know that if they buy a car, there are lots of laws to be aware of)--was actually invalid due to failure of promulgation in Texas. (Right now the requirement is still in place, but is largely moot because larger out of state businesses like Amazon collect the tax and remit it to the state.)
Regarding the failures of promulgation, I kind of suspect that sometimes -- perhaps in the use tax case -- the failure to inform the populace of a law may be deliberate, because if the populace were informed, they would be really annoyed.
Walter:
If I am right about the answer to the first question being negative, then the answer to the second question depends on whether we could have a law relevant to all but that counts as promulgated for some people and not for others.
Imagine that a country is composed of two ethnic groups, A and B, that rarely talk to each other due to geographic barriers. The A's are politically dominant and would like to have a special tax on the B's, but they realize that such a tax would be invalid due to its violation of norms of justice. For odd reasons they actually care about this. So they do this sneaky thing: They pass a tax on everyone, but only tell the B's, in such a way that the promulgation condition fails for the A's, and so the A's are not morally bound.
Suppose you're one of the B's. Are you morally required to pay the tax? I am inclined to think not, because even though the tax is worded in an ethnically neutral way, given the asymmetry in promulgation the tax does impose an unjust burden on the B's.
One might think that similarly in my village story, if the billboard's demands were only binding on those who accepted the monarch theory, the demands would be imposing an unjust burden on those people, and so either the demands are binding on all or on none.
Alex,
In human affairs, promulgation depends heavily on custom, and therefore there is no one-size-fits-all rule for it. Backwoods hillbillies have none of the knowledge and no ability to research the Statutes at Large; for that matter, most lawyers, while knowing how to research them, cannot seriously search through them for every relevant thing, and so most of the time trust to abbreviated semi-official classifications and summaries like the U.S. Code and professional reference books. But they apply, because they were promulgated. And our law codes are far from being the most inaccessible. Promulgation does require universally that it be possible to discover the rule to be obeyed and that it be in-principle possible to confirm that the law meets the requirements of law (including appropriate source). If those conditions are met, the law is valid unless custom imposes further requirements to avoid abuses and confusions.
Validity of obligation, of course, is distinct from whether one's failure to comply is culpable. Ignorance without negligence is of course an excuse that mitigates any culpability, and invincible ignorance excuses completely. But this is distinct from the question of validity. In the case of the superior officer's command, the command, assuming it was in compliance with military law, etc., is sufficient; but honestly not being able to tell may provide some excuse, depending on the conditions. But those conditions will depend not on whether in fact you knew but on whether you *could have* known. Otherwise, you could get out of any obligations just by refusing to discover them.
In the case of the Texas law, it was, like all laws, registered as law in a publicly accessible legislative register, and (I presume, although honestly I don't know) rules for enforcing it were registered as state agency rules in the Texas Register. In our system, you are by custom deemed to be in-principle able to know anything that meets the requirement. (That's the real point of the 'ignorance is no excuse' maxim in law, not that ignorance cannot ever excuse but that the bare fact of not knowing does not suffice if you are already deemed to be able to know.) There's a reason that's the custom; lots of alternatives end up being far too complicated or too expensive -- as would, say, the rule that no law can be promulgated without an advertising campaign. Again, this is a distinct issue from whether people were in fact culpable in not following it; in this case, the lack of *general* actual knowledge and the fact that it required people to do something so removed from what they would ordinarily do probably meant that most violators were innocent, since it's absurd to hold people guilty for not counterintuitive things that nobody knew they were supposed to do; it was also, I imagine, not very consistently enforced, which would be relevant as well. But the validity of the law and the culpability of the infraction are distinct.
Alex
In your example, the A's are clearly not authoritative.
Brandon:
I know that our legal system *claims* that the legislaton so registered is valid and that the system *punishes* violations of such legislation. But this does not show that the legislation is *in fact* valid, that the punishment is *just*, or that one is *morally bound* (which is the main thing that matters) to obey such legislation.
My thinking about promulgation is largely driven by Aquinas's persuasive (for me) picture of law in STh I-II 90. The main idea is: "Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting."
But a law that is not reasonably accessible to a person does not induce or restrain that person's action.
Thus: "a law is imposed on others by way of a rule and measure. Now a rule or measure is imposed by being applied to those who are to be ruled and measured by it. Wherefore, in order that a law obtain the binding force which is proper to a law, it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Wherefore promulgation is necessary for the law to obtain its force."
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