THE DEFECTIVE RULE
1
A man violates a rule and then publicly justifies his action. Here in
the simplest form is an attack upon the validity of the rule. It is an
appeal for a public judgment.
For he claims to have acted under a new rule which is better than the
old one. How shall the public decide as between the two? It cannot,
we are assuming, enter into the intrinsic merits of the question. It
follows that the public must ask the aggressor why he did not first
seek the assent of those concerned before he violated the rule. He
may say that he did not have time, that he acted in a crisis. In that
event, there is no serious question for the public, and his associates
will either thank him or call him a fool. But since the circumstances
were admittedly exceptional they do not really establish a new rule,
and the public may be satisfied if the parties at interest peaceably
make the best of the result. But suppose there was no emergency.
Suppose the innovator had time to seek assent, but did not on the
ground that he knew what was best. He may be fairly condemned; the
objections of the other parties may be fairly sustained.
For the right of innovation by fiat cannot be defended as a working
principle; a new rule, however excellent in intention, cannot be
expected to work unless in some degree it has been first understood
and approved by all who must live according to it. The innovator may
reply, of course, that he is being condemned by a dogma which is not
wholly proved. That may be admitted. Against the principle that a new
rule requires assent historic experience can be cited. There have been
many instances where a régime has been imposed on an unwilling people
and admired later by them for its results. The dogma that assent is
necessary is imperfect, as are most principles. But, nevertheless,
it is a necessary assumption in society. For if no new rule required
assent every one could make his own rule, and there would be no rules.
The dogma therefore must be maintained, softened by the knowledge that
exceptional times and exceptional men of their own force will make
way with any dogma. Since the rules of society cannot be based on
exceptions the exceptions must justify themselves.
The test, therefore, of whether a rule has been justifiably broken is
the test of assent. The question, then, is how in applying the test of
assent a member of the public is to determine whether sufficient assent
has been given. How is he to know whether the régime has been imposed
by arbitrary force or in substance agreed to?
2
We wish to know if assent is lacking. We know it is lacking because
there is open protest. Or we know it because there is a widespread
refusal to conform. A workable rule, which has assent, will not
evoke protest or much disobedience. How shall we, as members of the
public, measure the significance of the protest or the extent of the
disobedience?
3
Where very few persons are directly involved in the controversy the
public does best not to intervene at all. One party may protest, but
unless he protests against the public tribunals set up to adjudicate
such disputes, his protest may be ignored. The public cannot expect
to take part in the minutiæ of human adjustments however tragic or
important they may be to the individuals concerned. The protest of one
individual against another cannot be treated as a public matter. Only
if the public tribunal is impugned does it become a public matter, and
then only because the case may require investigation by some other
tribunal. In such disputes the public must trust the agencies of
adjustment acting as checks upon each other. When we remember that the
public consists of busy men reading newspapers for half an hour or so
a day, it is not heartless but merely prudent to deny that it can do
detailed justice.
But where many persons are involved in the controversy there is
necessarily a public matter. For when many persons are embroiled the
effects not only are likely to be wide but there may be need of all the
force the public can exert in order to compel a peaceable adjustment.
The public must take account of a protest voiced on behalf of a
relatively large number of persons. But how shall the public know that
such a protest has been made? It must look to see whether the spokesman
is authorized. How shall it tell if he is authorized? How can it tell,
that is to say, whether the representative is able to give assent
by committing his constituency to a course of action? Whether the
apparent leader is the real leader is a question which the members of
a public cannot usually answer directly on the merits. Yet they must
answer in some fashion and with some assurance by some rule of thumb.
The rule of thumb is to throw the burden of proof on those who deny
that the apparent leader, vested with the external signs of office,
is the real leader. As between one nation and another, no matter how
obnoxious the other’s government may be, if there is no open rebellion,
public opinion cannot go behind the returns. For, unless a people is
to engage in the hopeless task of playing politics inside another’s
frontiers, there is no course but to hold that a nation is committed
by the officials it fails to discharge. If there is open rebellion,
or that milder substitute, an impending election, it may be wise
to postpone long term settlements until a firm government has been
seated. But settlements, if they are made at all, must be made with the
government in office at the other nation’s capital.
The same theory holds, with modifications, for large bodies of men
within a state. If the officials of the miners’ union, for instance,
take a position, it is perfectly idle for an employer to deny that
they speak for the union miners. He should deny that they speak for
the nonunion miners, but if the question at issue requires the assent
of the union, then, unless the union itself impeaches the leaders, the
public must accept them as authorized.
But suppose the leaders are challenged within the union. How shall
the importance of the challenge be estimated by the public? Recall
that the object is to find out not whether the objectors are right but
simply whether the spokesmen can in fact commit their constituents.
In weighing the challenge the public’s concern is to know how far
the opposition can by virtue of its numbers, or of its strategic
importance, or its determination, impair the value of an assent. But
if we expected the public to make judgments of this sort we should be
asking too much of it. The importance of an opposition can be weighed,
if at all, only by rough, external criteria. With an opposition that
does not challenge the credentials of the spokesmen, which criticizes
but is not in rebellion, the public has no concern. That is an internal
affair. It is only an opposition which threatens not to conform that
has to be considered.
In such a case, if the spokesmen are elected, they can be held
competent to give a reliable assent only until a new election has been
held. If the spokesmen are not elective, and a rebellious opposition is
evident, their assent can only be taken as tentative. These criteria
do not, to be sure, weigh the importance of an opposition, but, by
limiting the kind of settlement which can reasonably be made in face of
an opposition, they allow for its effect.
They introduce the necessary modification to make workable the general
principle that the test of assent by large bodies of men is simply that
their spokesmen have agreed.
4
The test of conformity is closely related to the test of assent. For
it can be assumed that open criticism of a rule, a custom, a law, an
institution, is already accompanied by or will soon be followed by
evasion of that rule. It is a fairly safe hypothesis that the run of
men wish to conform; that any body of men aroused to the point where
they will pay the price of open heresy probably has an arguable case;
more certainly that that body will include a considerable number
who have passed over the line of criticism into the practice of
nonconformity. Their argument may be wrong, the remedy may be foolish,
but the fact that they openly criticize at some personal risk is a sign
that the rule is not working well. Widespread criticism, therefore, has
a significance beyond its intellectual value. It is almost always a
symptom on the surface that the rule is unstable.
When a rule is broken not occasionally but very often the rule is
defective. It simply does not define the conduct which normally may
be expected of men who live under it. It may sound noble. But it does
not work. It does not adjust relations. It does not actually organize
society.
In what way the rule is defective the public cannot specifically
determine. By the two tests I have suggested, of assent and of
conformity, the public can determine the presence of a defect in the
rule. But whether that defect is due to a false measure of the changing
balance of forces involved, or to neglect of an important interest or
some relevant circumstance, or to a bad technic of adjustment, or to
contradictions in the rule, or to obscurity, or to lack of machinery
for its interpretation or for the deduction of specific rules from
general ones, the public cannot judge.
It will have gone, I believe, to the limits of its normal powers if it
judges the rule to be defective, and turns then to identify the agency
most likely to remedy it.