Chapter XI

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.