Against group intentional action

Alice, Bob and Carl are triumvirate that unanimously votes for some legislation, for the following reasons:

1. Alice thinks that hard work and religion are intrinsically bad while entertainment is intrinsically good, and believes the legislation will decrease the prevalence of hard work and religion and increase that of entertainment.

2. Bob thinks that hard work and entertainment are intrinsically bad while religion is intrinsically good, and believes the legislation will decrease the prevalence of hard work and entertainment and increase that of religion.

3. Carl thinks that religion and entertainment are intrinsically bad while hard work is intrinsically good, and believes the legislation will decrease the prevalence of religion and entertainment and increase that of hard work.

If groups engage in intentional actions, it seems that passing legislation is a paradigm of such intentional action. But what is the intention behind the action here?

When I first thought about cases like this, I thought they were a strong argument against group intentional action. But then I became less sure. For we can imagine an intrapersonal version. Suppose Debbie the dictator was given a card by a trustworthy expert that she was informed contains a truth, with the expert departing at that point. Before she could read it, however, she accidentally dropped the card in a garbage can. Reaching into the garbage can, she found three cards in the expert’s handwriting, two of them being mere handwriting exercises and one being the advice card:

1. Hard work and religion are intrinsically bad while entertainment is intrinsically good, and the legislation will decrease the prevalence of hard work and religion and increase that of entertainment.
2. Hard work and entertainment are intrinsically bad while religion is intrinsically good, and the legislation will decrease the prevalence of hard work and entertainment and increase that of religion.
3. Religion and entertainment are intrinsically bad while hard work is intrinsically good, and the legislation will decrease the prevalence of religion and entertainment and increase that of hard work.

Oddly, Debbie’s own prior views are so undecided that she just sets her credence to 1/3 for each of these propositions, and enacts the legislation. What is her intention?

But now I think there is a plausible answer: Debbie’s intention is to increase whichever one of the trio of entertainment, religion and hard work is good and decrease whichever two of them are bad.

Could we thus say that that is what the triumvirate intends? I am not sure. Nobody on the triumvirate has such an abstract intention.

So perhaps we still have an argument against group intentional action, of the form:

1. If there is group intentional action, the triumvirate acts intentionally.

2. Something only acts intentionally if it has an intention.

3. The triumvirate has no intention.

4. So, there is no group intentional action.

"For the common good"

Aquinas thinks that for something to be a law, it must be “for the common good” (in addition to satisfying other conditions). Otherwise, the legislation (as we might still call it) is not really a law, and does not morally require obedience except to avoid chaos.

But suppose we have a cynical view of legislative activity, thinking that many cases of legislation are imposed not in order to the further the common good but in order to get the legislators reelected. One may worry that even if such a piece of legislation happens to further the common good, it is not for the common good but for reelection, and hence is not a valid law on Aquinas’ criteria.

Here is a possible way out. We should limit our cynicism. Start with a multiplicity of different options here, perhaps importantly different: the legislator may think the law would be popular with their constituents; voting for the law may help the legislator get an alliance with other legislators that will help getting reelected; or, the legislation will secure a large campaign contribution from an interested party. The last is the most crass, of course. But even so, it is reasonable to think that in most cases the legislator thinks that their getting reelected serves the common good. There may be some cases of serious corruption or power pursuit where even this is gone, but in those cases we really should worry about the validity of the supposed law. But in many cases even when there is corruption, I expect the legislators think it is good for their country that they be in office.

This solution reads “for the common good” broadly. The having of the legislation need not be aimed at the common good, but it is enough if the passing of the legislation—or maybe just the legislator’s voting in favor of it—is aimed at the common good. One may worry that this is overbroad: that the content of the legislation has to serve the public good.

But that would be too strict a criterion. The common good is the common good of the relevant political entity, say a country. But international negotiation can result in treaties where two countries each pass a coordinated piece of legislation such that: (a) the content of each piece of legislation harms the citizens of the country it is passed in and benefits the citizens of the other country; but (b) the benefits outweigh the harms in such a way that the coordinated deal is for the common good of each country. In this case, it is not the content of the legislation that serves the good of the people governed by it, but the fact of there being such legislation serves their good, by getting the other country to pass the coordinated legislation. And this seems like it could be a perfectly legitimate case of valid legislation, assuming the harms are not of a kind that are morally impermissible (e.g., the legislation invidiously harming a vulnerable group).

In fact, the case of the legislator voting for a piece of legislation in order to get reelected is not very different from such international negotiation. In each case, the legislation as such may not directly serve the common good, but its promotion is nonetheless thought to lead to the common good. So it is important to read the “for the common good” criterion broadly. But if we read it this broadly, then apart from really serious cases of corruption or power madness, we have good reason to think that most of the legislation we are under in democratic societies is “for the common good”, unless it is clearly immoral (further discussion here would require separate analysis of the two ways legislation can be immoral: by requiring immoral action from one or by being an immoral imposition that doesn’t require immoral action from one).

Relativity theory, promises and promulgation of laws

In one earlier post, I suggested the principle the basic laws of morality, just like those of physics, should be reference frame invariant. In that post, I offered some examples of the application of this theory, albeit ones that were not of much interest. In a later post, I have offered an application of the principle to the abortion debate, but the principle did not really decide any issue, but simply deepened the discussion. But now I have what is to me a much more interesting pair of applications.

I promise you never to sit on your late wife's favorite bench which happens to be on my front lawn. I thus create an obligation for myself (an amazing power, isn't it, the power to create obligations?). A while later you release me from the promise. Your release destroys the obligation (so a part of my power of promising was a power to give you the power to make the obligation cease to obtain).

But when did these things happen? When did the obligation not to sit on the chair come into existence? When I promised I wouldn't, or only when the promise reached you? And when did the obligation cease? When you said you release me, or only when the release reached me? Of course, if we're speaking face to face, the question is only of theoretical interest—but, still, it is a genuine interest, I think. But what if you live four light-years away, and we speak by radio? Then, did I become bound when I made the promise, or only four years later, when you heard the promise? And did I become released when you uttered the words releasing me from the promise, or only four years later? In such a case, the question is not just of theoretical interest.

It turns out that there is a very natural way to decide this question when we apply invariance, assuming that making promises and releasing from them is a matter of basic laws of morality. Suppose that we said that the obligation comes to exist when you hear my promise. But then the law would not be invariant. For five minutes after I have sent my words to you over the radio, it will be true in some but not all reference frames that you have already received the message. So, it will depend on reference frame whether I may sit on the bench then or not. Invariance will be violated. (Note that it will not help much to say that what is relevant is my reference frame. For extended substances do not in general define a unique reference frame. Besides, if my reference frame matters so much then, absurd, I'll be able to affect when the obligation applies simply by running really fast in some direction or other.)

If, on the other hand, I say that the promise is binding on me as soon as I have made it, then this rule is invariant. For the rule, basically, says that the obligation obtains when I am in the forward light-cone of the promise-making, and this is a reference-frame invariant relationship.

One might think that just as I am bound as soon as I sent the promise, so too am I released as soon as you sent the release. But here things are quite the opposite. For if I were released as soon as you sent the release, invariance would be violated—for, we would have to ask, in which reference frame is the "as soon as" measured. But invariance will obtain if I specify that my obligation ceases as soon as the release gets to me.

So we have a pretty good argument, based on invariance, for when promises come to bind and when we are released from them. The obligations, as it were, exist at the site of the promiser, and hence come to exist when the promiser speaks, and cease to exist when the promisee's release arrives at the promiser. Of course, further questions can be asked—when is the exact moment of sending, for instance. But those questions, I think, do not concern the basic practice of promise making/keeping itself—maybe answers to those questions can be left to custom or the prudent legislator.

Here is a different application. When a legislature passes a law, when does the law become morally binding on me? (I don't care about the question when it becomes legally binding, since only moral normativity matters in the end.) When the law is passed? Or when the law is promulgated? Or when the promulgation arrives? Intuitively, it would seem unfair if I were bound as soon as the law were passed, since I would have no way of knowing about the law as soon as it were passed, and surely the law is to be a guide to my rational deliberation. I think Aquinas makes something like this argument. But it would be nice to have an argument without so much that is controversial. Well, that's easy. The rule that the law is binding morally on me when promulgated violates invariance (imagine that the law is one of the Galactic Empire, and there is no faster than light travel, so it can take years and years to reach me), since we would have to ask: "In which reference frame?" The same problem obtains for the question: "When the law is promulgated?" (e.g., when the legislature radios it out to the subjects). But "When the promulgation arrives to me" is invariant, since it is a question of my being bound.

Now there is a problem with this answer. Generally, it is taken that ignorance of the law is no excuse. So, it seems, I can be bound by laws that were never communicated to me. Three answers are available. The first is that the "ignorance" saying only applies to legal binding—morally, ignorance of positive law is a perfectly fine excuse. The second is to modify my initial formulation: I am bound at the first time at which it was reasonably possible for me to have found out about the legislation had I set my mind to it. This, too, is invariant. The third is to combine the first two answers. Certain basic laws, such as laws proclaiming the constitution of a new nation, only become morally binding when the subjects hear of them. As part of the proclamations of these laws, the subjects hear how and where they can find out about additional laws. But then further laws becoming binding when one can reasonably find out about them. This, too, is invariant.

In any case, the answer "When the legislator makes the law" is not a good one. So we have an argument for Aquinas' thesis that promulgation is essential to the bindingness of a law. Secret treaties do not bind those ignorant of them, at least not morally.

I think it's pretty cool that one can get such fairly specific answers to difficult normative questions simply out of relativity theory. I think one could probably also get similar answers if one had a causal theory of time (whether it was relativistic or not). And that is not a coincidence because I think the relativistic theory of time is, basically, a causal theory of time.

A puzzle about freedom and the law

I am no legal or political theorist, but here is a fun little puzzle, not unlikely old hat to everybody who knows anything about these things.

Suppose you want to gamble (as far as I know a morally permissible activity within due limits—if you disagree, substitute something else, like scratching one's back in public), and I (say, as a legislator) enact a law prohibiting you from gambling, without any good reason behind it except a gut feeling that gambling is a bit icky. It seems plausible that I have acted wrongly. I should not prohibit you from an activity because I have a gut feeling that it is a bit icky. But why have I acted wrongly?

An obvious thing to say is that I have take away some of your autonomy or freedom. But what autonomy or freedom have I taken away? (I will use the terms somewhat interchangeably, but the issues may be subtly different in the two cases.) Intuitively, I have taken away your freedom to choose whether to gamble or not, or else the freedom to choose to gamble. But not quite. For you can still gamble even if gambling is illegal. So it seems that what I've taken away is your freedom to choose whether to legally gamble or not, or else the freedom to gamble legally.

Indeed, you no longer have these freedoms, since it is now impossible for you to gamble legally (assuming you have no ability to legalize gambling). So you've lost a freedom. But you've also gained a freedom. For now you are free to choose whether to gamble illegally or not, and free to choose to gamble illegally. You've lost your autonomy vis-à-vis the decision whether to gamble legally, but you've gained autonomy vis-à-vis the decision whether to gamble illegally. You lose one and you gain one. So it seems that you are not the loser in respect of autonomy, and hence you can't complain.

But, perhaps, you will say that now if you gamble, you are liable to be punished by law, or at least by your conscience (if you think you should obey the law). Yes—now you have a new freedom, to choose to gamble and be punished or not to do either. You've lost the freedom to gamble without punishment, and have gained the freedom to gamble and be punished.

Perhaps, though, the problem is that without a sufficiently good reason (and "feels a bit icky" is not a good reason), I have no right to deprive you of a freedom even if you get a new freedom in exchange. When we talk of autonomy, we should not be consequentialists who simply try to maximize the sum total of human autonomy. Just as it is wrong to kill one innocent person while saving another, so, too, it is wrong for me without sufficient reason to deprive you of one freedom even while giving you another. But while there is much to this lesson, I am not sure this is the right lesson to draw from the story. For consider the opposite case. Suppose that gambling is illegal. I now completely legalize it. By doing so, I take away the autonomy of your choice whether to engage in illegal gambling. So I've taken away one of your freedoms, and given you another in exchange. It looks now like legalizing and illegalizing have the same kind of effect on total freedom—each takes one freedom away and gives another. If I say that it is wrong with insufficient reason to take away a freedom even if I give you another, then in a situation where gambling is illegal and nobody has any good considerations for or against gambling, I should keep it illegal. But I am not sure that's right. Should one keep a restrictive law that has no rational justification? That doesn't seem right.

So it doesn't seem that considerations of autonomy are the right way to think about what goes wrong when one makes an activity illegal without sufficient reason. Is there a better way? I think so. To make something illegal is for the state to exercise a certain authority. To make something legal is for the state to cease to exercise a certain authority. As long as the state holds people to a rule, the state is exercising authority in respect of that rule. To release people from that rule is not to exercise an authority, but to cease to exercise that authority. Hence there is an asymmetry in making something legal versus making it illegal: to make something legal is for the state to cease to act in a certain way, while to make something illegal is for the state to begin to act in a certain way. If so, then we would expect an asymmetry in justification—actions in general require stronger justification than non-actions—and hence it is easier to justify the state's making something previously illegal be legal than the other way around. Of course this asymmetry is an anti-consequentialist one—it is an asymmetry similar to that between contraception and abstinence, or between killing and not preventing death.