Do we have normative powers?

A normative power is supposed to be a power to directly change normative reality. We can, of course, indirectly change normative reality by affecting the antecedents of conditional norms: By unfairly insulting you, I get myself to have a duty to apologize, but that is simply due to a pre-existing duty to apologize for all unfair insults.

It would be attractive to deny our possession of normative powers. Typical examples of normative powers are promises, commands, permissions, and requests. But all of these can seemingly be reduced to conditional norms, such as:

• Do whatever you promise

• Do whatever you are validly commanded

• Refrain from ϕing unless permitted

• Treat what you are requested as a reason for doing it.

One might think that one can still count as having a normative power even if it is reducible to prior conditional norms. Here is a reason to deny this. I could promise to send you a dollar on any day on which your dog barks. Then your dog has the power to obligate me to send you a dollar, a power reducible to the norm arising from my promise. But dogs do not have normative powers. Hence an ability to change normative reality by affecting the antecedents of a prior conditional norm is not a normative power.

If this argument succeeds, if a power to affect normative reality is reducible to a non-normative power (such as the power to bark) and a prior norm, it is not a normative power. Are there any normative powers, then, powers not reducible in this way?

I am not sure. But here is a non-conclusive reason to think so. It seems we can invent new useful ways of affecting normative reality, within certain bounds. For instance, normally a request comes along with a permission—a request creates a reason for the other party to do the requested action and while removing any reasons of non-consent against the performance. But there are rare contexts where it is useful to create a reason without removing reasons of non-consent. An example is “If you are going to kill me, kill me quickly.” One can see this as creating a reason for the murderer to kill one quickly, without removing reasons of non-consent against killing (or even killing quickly). Or, for another example, normally a general’s command in an important matter generates a serious obligation. But there could be cases where the general doesn’t want a subordinate to feel very guilty for failing to fulfill the command, and it would be useful for the general to make a new commanding practice, a “slight command” which generates an obligation, but one that it is only slightly wrong to disobey.

There are approximable and non-approximable promises. When I promise to bake you seven cookies, and I am short on flour, normally I have reason to bake you four. But there are cases where there is no reason to bake you four—perhaps you are going to have seven guests, and you want to serve them the same sweet, so four are useless to you (maybe you hate cookies). Normally we leave such decisions to common sense and don’t make them explicit. However, we could also imagine making them explicit, and we could imagine promises with express approximability rules (perhaps when you can’t do cookies, cupcakes will be a second best; perhaps they won’t be). We can even imagine complex rules of preferability between different approximations to the promise: if it’s sunny, seven cupcakes is a better approximation than five cookies, while if it’s cloudy, five cookies is a better approximation. These rules might also specify the degree of moral failure that each approximation represents. It is, plausibly, within our normative authority over ourselves to issue promises with all sorts of approximability rules, and we can imagine a society inventing such.

Intuitively, normally, if one is capable of a greater change of normative reality, one is capable of a lesser one. Thus, if a general has the authority to create a serious obligation, they have the authority to create a slight one. And if you are capable of both creating a reason and providing a permission, you should be able to do one in isolation from the other. If you have the authority to command, you have the standing to create non-binding reasons by requesting.

We could imagine a society which starts with two normative powers, promising and commanding, and then invents the “weaker” powers of requesting and permitting, and an endless variety of normative subtlety.

It seems plausible to think that we are capable of inventing new, useful normative practices. These, of course, cannot be a normative power grab: there are limits. The epistemic rule of thumb for determining these limits is that the powers do not exceed ones that we clearly have.

It seems a little simpler to think that we can create new normative powers within predetermined limits than that all our norms are preset, and we simply instance their antecedents. But while this is a plausible argument for normative powers, it is not conclusive.

Reasons and permissions

The fact that a large animal is attacking me would give me both permission and reason to kill the animal. On the basis of cases like that, one might hypothesize that permissions to ϕ come from particularly strong reasons to ϕ.

But there are cases where things are quite different. There is an inexpensive watch on a shelf beside me that I am permitted to destroy. What gives me that permission? It is that I own it. But the very thing that gives me permission, my ownership, also gives me a reason not to smash it. So sometimes the same feature of reality that makes ϕing permissible is also a reason against ϕing.

This is a bit odd. For if it were impermissible to destroy the watch, that would be a conclusive reason against the smashing. So it seems that my ownership moves me from having a conclusive reason against smashing to not having a conclusive reason against smashing. Yet it does that while at the same time being a reason not to smash. Interesting.

I suspect there may be an argument against utilitarianism somewhere in the vicinity.

More remarks on the logic of commands and permissions

It's interesting that even invalid commands typically result in permissions.  I am a civilian and I successfully impersonate your commanding officer, point to my car, and say: "Blow up this car!"  You do so.  My command was invalid.  You blew up a civilian's vehicle without a valid order to do so.  Now, if it was another civilian's car than mine, you would be wronging that someone else, by blowing up a car without any valid order to do so.  Of course you wouldn't be culpable for the action, but it would still be something wrong, and the civilian might well seek compensation from the army.  But in the case where it is my car, you didn't even inculpably wrong the car's owner.  Why not?  Presumably because by issuing the order, I gave you permission.

So an invalid order can result in a permission.  Consider another case.  Your Department Cchair hands you her cellphone and tells you to phone me and humiliate me.  Suppose there is no sufficient justification for humiliating me.  That's an invalid order, since she can't validly command you to wrong me.  Suppose you do what you're told nonetheless.  You wrong me, then, and maybe even wrong your chair by making her be responsible for a bad outcome.  But you can't be accused of using her phone without her permission.

Notice, though, that in both of these two cases, the permission issued comes "labeled" with a different role than the putative order does.  The Department chair putatively orders you to use her cellphone as chair.  But she permits you to use her cellphone as a private individual (I assume it's her private phone).  As chair, she has no right to permit the use of any private individual's cellphone.  Likewise, I pretend to order you to blow up the car as your commanding officer, but the permission comes from me as a private individual--it can't come from me as your commanding officer because I am not your commanding officer.

So, typically, a command, valid or invalid, issued by an individual x under some role R results in permission by x in x's role as a private individual.  But not always, not even in the case of a valid order.  "The colonel has ordered you to blow up my private car.  I hereby, acting under protest, order you to blow up my private car."  In this case, I didn't give you permission as a private individual to blow up my private car, which has the normative consequence that I may be entitled to compensation from the service for the unpermitted destruction of my property.

This means that the issuing of permission as a private individual needs to be logically separated from giving an order under some other role R.  Normally, by giving an order in an official capacity I implicate private permission, but this implicature can be canceled, say by an "acting under protest" qualifier.

But now we have an interesting question: Likewise, normally by giving an order in role R, I also permit the commanded thing in role R.  Is the connection here just a matter of contingent implicature, so that (a) even if the order is invalid, the permission remains, and (b) the order can be validly given without the permission?

The answers to both questions are negative, I think.

First take (a).  The most obvious counterexample.  I impersonate a commanding officer and order you to shell an enemy installation.  I invalidly command as your commanding officer, but you do not thereby receive your commanding officer's permission, since I am not your commanding officer.  Maybe, though, (a) is true in the special case where the putatively commanding party actually fills the role?  I don't think so.  Suppose that as a an American sergeant I order my men to initiate war against Canada.  Do my men have sergeant permission to make war on Canada?  Certainly not: initiating a war exceeds the authority of a sergeant both in respect of command and in respect of permission, and there is no such thing as sergeant permission to make war on Canada--there may be such a thing as presidential permission to make war, but surely not sergeant permission.  So R-permission doesn't follow automatically from an invalid R-command.

Now take (b).  Can one give a valid order in role R without giving a permission in role R?  I think not.  I don't have a very precise argument, but the basic idea seems to be something like the following (adapting stuff I heard from Mark Murphy).  By attempting to give in role R an order to A, I am attempting to create a normative situation where you have reason in light of your authority connection with R to A.  Creating such a normative situation requires the wiping away of any relevantly R-connected reasons not to A that I can wipe away qua occupier of R.  Without that wiping away, there is no attempt to create the right kind of normative situation, and hence there is no valid order given.  Besides, I can't think of a counterexample to the claim that valid R-command entails valid R-permission.

So the relevant deontic statuses can be rather logically complex.  As CEO, I order you to build a bridge.  You seek all the relevant legally required permissions.  I didn't realize this when I gave the order, but the bridge is close enough to my house that vibration from the construction would endanger my china collection.  Suppose the law requires permission from all private individuals affected by vibration from construction and you failed to seek my permission.  Because I didn't know about the issue, you can't just presume on my private permission, but you do presume, and my china is destroyed.  Then you didn't wrong me qua CEO, but you did wrong me qua private citizen.

Suppose, however, that the law allows you to build as long as you get permission from nine tenths of the citizens affected by any particular kind of harmful effect.  You get permission from the other nine tenths of the relevant citizens, so you don't bother to ask me.  Assuming that I am validly under the authority of this law, and that the law is just, it may well be that you haven't wronged me.  But neither have I permitted the damage to my china.  So you're permitted vis-à-vis me-qua-private-individual to cause the vibration, but you do not have my permission as a private individual to cause the vibration--rather, the law gave you the permission.

Suppose that the vibration causes both property damage and health damage, and that the law requires everyone's permission in respect of health damage, but only nine-tenths' majority permission in respect of property damage.  Then by causing the vibration you (i) don't wrong me qua CEO; (ii) do something not permitted vis-à-vis me-qua-private-individual in respect of health damage; and (iii) have the relevant permissions vis-à-vis me-qua-private-individual in respect of property damage.

There are, no doubt, neater ways of spelling out these normative statuses.

Remarks on the logic of commanding and permitting

Disjunctions

If I command you to do something, I thereby permit you to do it. But suppose I command you to do A or B or both. Then it seems that not only do I permit the disjunction, but I also permit each disjunct.

It is, I think, necessary that if I command you to do something, I also permit you to do it. Working out why exactly would be interesting.

But I do not think it is necessary that if I command you to do A or B or both, then I permit you to do A and I permit you to do B. Imagine a case where you are under all sorts of orders that I have no authority to override and which I do not know all of, but I know that you're not both prohibited from doing A and from doing B. I might then say: "Do A or B or both. Of course, stay within the scope of your other orders." If one of your other orders is never to do B, you can't say that my disjunctive command permitted you to do B. If this is right, then it's not part of the fundamental logic of commanding and permitting that by commanding a disjunction one permits the disjuncts.

Interesting question. Is it ever morally licit to issue the command to do A or B or both, when B is morally illicit? It is, I take it, always wrong to command or permit something wrong (I distinguish permission proper from waiving punishment). If commanding a disjunction always involves permitting the disjuncts, it follows that one may not licitly command a disjunction when one of the disjuncts in it is wrong. But if it is possible to command the disjunction without permitting each disjunct, then it may be licit to command a disjunction one disjunct of which is wrong, though not a disjunction both disjuncts of which are wrong. We can imagine a situation where very bad things will happen (to you and to your subordinates) if you refuse to issue an order you were commanded to issue, and the order is to do A or B or both, and B is morally wrong. In that case, it may be licit to say: "I command you to do A or B or both. And I forbid you from doing B." You've fulfilled your order to the letter and haven't commanded or permitted anything wrong. Still, in ordinary contexts, commanding A or B or both carries the implicated (and still real) permission of doing A and of doing B and of doing both.

Conjunctions

Suppose now I command you to do both A and B. Interestingly, while it does follow that I permit you to do both A and B, it does not follow that I permit you to do A. I may only be permitting you to do A if you're going to do B as well. So commands are not closed under logical entailment. For if they were, then in commanding A and B, I would be commanding A, and hence also permitting A.