Tuesday, February 07, 2017
“Manifestations of the efficiency of reliance on rules are all around us, but we may fail to recognize them precisely because of the role that rules play. It is just because reliance on rules eliminates the necessity of making some kinds of investigations and calculations that often we do not consider the kinds of investigations that would otherwise have been required. Our lives proceed more efficiently because by relying on posted speed limits we spend less time calculating how fast to drive, in the same way that the observant Jew is relieved by the rules of kashrut from having to train herself as a biologist just to know which foods to eat and which to avoid. And in cultures [or schools!] in which a particular style of dress is mandatory … a common argument for those rules is precisely that they eliminate the calculations, the anguish, and the expenditures that would otherwise be necessary, thereby freeing time, money, and mental space for more worthwhile endeavors.” — Frederick Schauer in his fairly comprehensive analytic examination, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford University Press, 1991): 146-147.
Before penning the above passage, Schauer has concluded that arguments in support of rule-based decision-making grounded on the “moral force of consistency, fairness, or justice” fall short of proffering an adequate grounding in persuasive reasons, pointing out, for example, that the goals of justice are frequently “served not by the rule-followers, but by those whose abilities at particularized decision-making transcend the inherent limitation of rules.” He proceeds to examine arguments for rule-based decision-making “that have traditionally focused on the ability of rules to foster the interrelated virtues of reliance, predictability, and certainty,” settling upon a description of them as “the argument from reliance.” After accounting for the merits and limits of this attractive argument, Schauer finds that its relative strength
“is irreducibly a question of comparing costs and benefits. The psychological and tangible value of justified reliance for the expected array of reliers must be weighed against the expected costs of suboptimal decisions for those affected by them. Because the product of this calculation will vary with the nature of the decision making domain [e.g., consider the legal realm of so-called ‘private law’ (contracts, wills, trusts, etc.) wherein one can generally and comfortably accord pride of place to the virtues of reliance, such virtues being sufficient or palpable, whereas when speaking of the criminal justice system, the value of ‘settling things correctly’ supersedes or trumps the virtues of reliance enshrined in strict application of the rules], the identity of the decision-makers, the type of decisions expected to be made, and the interests of those affected by the decisions, it is no surprise that the force of the argument from reliance is in the final analysis highly context-dependent.”
Schauer then explains precisely what the constraint of “context-dependence” means and entails, reminding us of the inherent limitations “associated with consistency for consistency’s sake.”
The next argument “that purports to identify virtues independent of the quality of the decisions reached” analyzed by Schauer is the “argument from efficiency.” First, an introduction to the presuppositions and premises of the argument:
“… [W]hen a decision-maker decides according to rules and therefore relies on decisions made by others, she is partially freed from the responsibility of scrutinizing every substantively relevant feature of the event [or situation]. It is true that in the final analysis the decision to treat a rule as such is for the decision-maker, and thus every decision presents the choice whether to follow even a plainly applicable rule. Still, individual decision-makers use rules to allocate their own decision-making resources and systems employ sanctions to induce their decision-makers to leave certain decisions to others; for when a decision-maker follows a rule she no longer examines every facet of the decision-making event with the same degree of care she would have employed had there been no rules. In this way rules allocate the limited decisional resources of individual decision-makers, focusing their concentration on the presence or absence of some facts and allowing them to ‘relax’ with respect to others. At times a rule removes so many factors from consideration that a decision-maker may relax almost completely [cf. routines, habits, and rituals], making decisions that require virtually no effort whatsoever [I wonder if it is even proper to characterize such cases as ‘decision-making’]. Sometimes this frees decision-makers to do other things, and within the larger decision-making environment may eliminate duplication of effort. The result of this, it is often argued, is greater efficiency in decision-making, a goal generating the argument from efficiency as an argument for rule-based decision-making.”
It is at this point that Schauer writes the paragraph at the top of our post. And here again we learn that “assessing the costs and benefits of rule-generated efficiency will vary among decision-making environments.” Furthermore, the gains of efficiency over time are purchased “at the price of precluding decision-makers from investigating factors that might, for the particular case, have been dispositive.” The analysis does not disappoint: we’re provided with a fine assessment of the power and weakness of this argument as well.
I wanted to provide you with but a small taste of the book before commenting on the example Schauer gives us in the aforementioned paragraph, granting that it is true enough that “[m]anifestations of the efficiency of reliance on rules are all around us, but we may fail to recognize them precisely because of the role that rules play.” This may not be particularly insightful or profound, but what jumped out at me when reading this passage was rather the reference to the laws of kashrut (Jewish food laws), which I don’t think are apposite in this instance, as it assumes a belief in a necessary connection between these dietary rules and hygiene or health, a connection for which arguments have on occasion been made, both from within and—less frequently—outside Judaism, although there is no scholarly consensus in their favor. In fact, I suspect that at most we might plausibly claim an incidental (thus unintentional) hygienic purpose served by this or that rule but the rules generally are not explained by their serving the means and ends of healthy living.*
I resort here to an argument from authority insofar as there is a concise and excellent treatment of this topic in Michael L. Satlow’s Creating Judaism: History, Tradition, Practice (Columbia University Press, 2006). Satlow notes that “[b]y strictly regulating dietary consumption … kashrut tightly structures the life of the rabbinic Jew,” which in itself does not necessarily make for “efficiency” or free the observant rabbinic Jew “for more worthwhile endeavors.” Such laws, Satlow reminds us, do implicitly if not explicitly mandate “social segregation,” as strict observance of these rules means the “rabbinic Jew will have a difficult time eating or drinking with non-Jews or even non-rabbinic Jews.” The laws of kashrut “also help to create an isolated economic community in which observant Jews restrict their commercial interactions in certain critical areas to other Jews.” But this is not satisfying by way of providing sufficient explanation for why these particular rules or a persuasive account of what such a system of rules means: “like most Jewish rituals, kashrut is underdetermined; it does not come with an inherent meaning that all Jewish communities realize.” Whichever putative justification or meaning has been invoked by various Jewish communities in the global history of this tradition, the search (or ‘struggle’) for meaning with regard to such rules “almost always moves from the inside out, from a prior commitment to the justification for it,” and the justifications are motley (e.g., ‘reflective of irrational devotion to God, superior Jewish morals or hygiene, or a Jewish love of animals and the environment’), with an unmet if not impossible burden of proof. In short, adherence by the observant rabbinic Jew to the rules of kashrut fail to exemplify the sort of “relief” or enhancement of freedom Schauer is looking to model in his otherwise fine treatment of the argument for the efficiency of reliance on rules.
All the same, when my wife goes shopping (I’m at once happy and embarrassed to admit that she routinely fulfills this chore for our household), we agree that if a choice arises between a two identical food items of comparable price, and one of them happens to be kosher, pick the one certified kosher! (The reason revolves around the fact that at least one more person is paying fairly close attention to the process of — more or less — industrialized agricultural production which brings the food, as it were, to our table.)* This is serendipitously analogous to the fact that randomized controlled scientific trials have recently provided “compelling evidence that male circumcision reduces the risk of heterosexually acquired HIV infection in men by approximately 60%,” thus both the World Health Organization (WHO) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have published recommendations emphasizing “that male circumcision should be considered an efficacious intervention for HIV prevention in countries and regions with heterosexual epidemics, high HIV and low male circumcision prevalence.”