Rules, can’t live with them, can’t live without them. But if it’s rules for thee but not for me, then trouble awaits
Here is an easy riddle: what do Novak Djokovic and Boris Johnson have in common? They are both experiencing some trouble with rules. The world no. 1 male tennis player, intent on defending his Australian Open title, has been experiencing a few problems trying to enter the country, related to its COVID-19 immigration rules. The British premier has been attending a gathering in the garden of his official residence at 10, Downing Street in May 2020, when the country was in lockdown and such an event was in breach of the government’s own COVID rules.
Rules are a peculiar phenomenon. We may not be aware of them all the time, but they lurk in vast numbers just below the surface of our day-to-day business. Some rules are descriptive, capturing an equivalence or a correlation between observations (e.g., the doorbell sounds) and their significance (there is someone at the door). This helps us simplify the world around us, and make decisions without much cogitation. For example, when we hear the bell, we may want to go and open the door (or at least check whether it is a visitor we want to welcome). Likewise, the rule that, If the milk smells bad, then it is unfit for consumption can help us decide whether we should pour it in our coffee or tea, or instead in the sink.
What is, and what ought to be
Rules can also be normative: instead of describing what is, they assert what ought to be, and tell us what we must, or must not do. We can (and do) make many of such rules up for ourselves. We may have a rule that we go for a run four times a week, do the weekly shop on Saturday morning at 8am, or squeeze the toothpaste tube from the end (rather than the middle). We may also make rules that apply to ourselves and to others: if you enter this house, you must wipe your feet; if an item of clothing needs washing, you must place it in the laundry basket (and not leave it on the floor); if you put the cutlery in the drawer, the forks go on the left, and the spoons on the right, and so on.
Beyond our house – in our town, country or even on our planet – there are plenty of normative rules too. It is hard to see how a social, cooperative species could exist and persist without them. We need norms telling us that we must drive on the agreed side of the road and stop for red traffic lights; we need norms telling us that we cannot enter other people’s property without their consent; and we need norms telling us that we must not smoke our talk loudly in the cinema.
Like descriptive rules, normative rules help us decide more easily: both relieve us from some of the burdens involved. But there are important, fundamental even, distinctions. Descriptive rules inform us so that we do not need to collect lots of evidence, while still leaving the eventual trade-offs to us. Normative rules, in contrast, instruct us. They tell us what to do, or what to refrain from, so that we do not have to weigh up options and make trade-offs. Any trade-offs are built in to the normative rule. In addition, they are intended to avoid arbitrariness. Are they therefore always a good thing? (You guessed it.)
When good rules go bad
Sometimes, normative rules have solid, logical roots. An example is the allocation of landing slots at airports. If airlines want to keep their landing rights at an airport, they must use 80% of their slots on a yearly basis, otherwise they need to give them up. That makes sense, especially because landing slots are scarce (and hence very valuable: American Airlines paid $60 million for two slots from SAS in 2015). With the drop in demand for air travel resulting from the COVID-19 pandemic, fewer flights are needed, but if airlines simply cancelled unnecessary flights, they would lose the corresponding landing rights. So, Lufthansa intends to operate no less than 18,000 “ghost flights” without passengers, in order to retain their slots. So, one problem with normative rules is that, once they are established, they impose a rigidity which may lead to less-than-ideal outcomes.
In a way, Mr Djokovic’s adventure down under occupies a similar context. As the highly contagious omicron COVID-19 variant emerged, Australia had imposed stringent immigration rules in order to keep it out. Since then, however, Australia is among the countries with the highest number of new infections per day (nearly 4,000 per million), and we also know that even people who have received three doses of vaccine are still susceptible to become infected. The risk that Mr. Djokovic – or anyone who has in the past tested positive, vaccinated or not – poses is, well, negligible in present-day Oz. Nonetheless, the Australian Border Force decided he did not meet the rules for a visa (a decision which has since been overturned by a judge, though the Australian minister of immigration, Alex Hawke has since retracted the visa again, ironically by using his discretionary power to overrule the judgement). Did they apply the rules incorrectly, and if so, why? The transcript of Djokovic’s interrogation is inconclusive. In any case, the shenanigans in Australia suggest a second problem with normative rules: they can be invoked for motives that have nothing to do with their original purpose.
They can facilitate decision making, but perhaps the biggest issue with normative rules is that this is neither the only purpose, nor the only effect they have. And this is where we find Mr. Johnson’s predicament. He not only conceded that a “socially distanced drinks” party took place in the gardens on 10 Downing Street when the country was in a severe lockdown, but also that he actually spent time mingling with around 40 others. In doing so, he (and the others) unequivocally violated the rules his government itself had set. (It turns out this was not the only party in the grounds of the residence during lockdown.)
Power can backfire
Normative rules can be, in part, a power game: whoever sets the rules dictates what others must, and must not do. (In a limited sense, we have that power at work and at home, but a prime minister is of course in a superb position to enjoy this particular privilege at scale.) If such rules do not conflict with our preferences, we might not mind them very much, but in the opposite case, we might well resist, and seek to circumvent, them. Naturally, the creator of a rule is exceptionally well placed to exploit such opportunities: he or she can authoritatively interpret it to their specific advantage. Even for the rules we set ourselves (snack less, exercise every day, watch less TV and read more) we can be quite resourceful in justifying violations. In that respect, the attempts of Mr Johnson to claim that he thought the drinks party was a work event are at least understandable.
But when a PM violates rules while ordinary citizens get penalized for doing so (more than 800 fines were handed out to people accused of breaking coronavirus rules in the week of the garden party), there is inevitable damage. A normative rule may be supported by sanctions, but it almost always relies on a willingness to comply with it voluntarily, even from those who disagree with it. If that willingness is lost, the rule is dead. Worse still, the authority of the rule creator risks being destroyed – the calls for Mr Johnson to resign from within his own party are a clear demonstration.
Might we be better off without normative rules, and instead adopt a radical consequentialism: for every decision, systematically consider the options, their costs and benefits, and the second-order consequences? As someone who leans heavily towards consequentialism, who tends to take a dim view of too many rules, it pains me to say that I fear this won’t work. Rules are at the core of the way we make decisions.
But what we can do is to confront rules and ask the tough questions. Do they have a clear purpose? What is the evidence that they will deliver it? What are the costs and the unintended consequences? Have the trade-offs been properly considered? Arguably it is our moral duty to challenge rule makers if the answers to these questions are unsatisfactory – and our moral right to choose to ignore rules that fail these tests.