4.2 Formulating rules
Activity 4 should have shown you that the language used for making rules can sometimes make them difficult to understand. Given that we can only comply with a rule if we know what it means, this is a big problem! In this part of the course we are going to look at the process of making rules in more detail – and you are going to have the opportunity to make a rule that can be understood and which is effective in achieving what it sets out to do.
It is worth restating that rules are made for a reason – to achieve a specific purpose or outcome. They are designed to ensure that their target audience acts, or refrains from acting, in a certain way. That audience could be sovereign states (bound by treaties to which they are signatories), members of the general public (bound by Acts of Parliament, local by-laws, etc.), children at school (bound by rules of attendance and discipline), players of a sport 'bound by the rules of that sport's governing body), participants in a court trial (bound by the rules of evidence and procedure), or smokers in an Irish pub. There are many other examples.
Whoever their audience is, rules should, ideally, be formulated in such a way that members of that audience understand exactly what is expected of them. If they are unclear, the audience may be at a loss as to how it should behave, and the rules will not achieve their purpose. There are issues with this idealistic goal. While there is an infinite number and range of real-life events, there can only ever be a finite number and range of rules to deal with them. Rules therefore have to be drafted in such a way that they cover the conduct they are meant to regulate, but not so that they regulate other conduct, and so have unintended effects.
To explore these issues, I would like you to read the account in Box 5 of Mrs Biggs, and the difficulties she has in controlling visitors to her garden.
Box 5 In an English country garden
Mrs Biggs is the owner of a house which has a beautiful garden. Once a year she takes part in a scheme which allows members of the public to visit gardens in her area, so that they can appreciate the flowerbeds, trees and shrubs that gardeners like her have spent many years growing and cultivating. The scheme allows Mrs Biggs, as the gardener, to decide what rules should apply to those wishing to visit her garden. Three years ago, when she first took part in the scheme, she was advised by a neighbour that visitors had a nasty habit of picking flowers, so Mrs Biggs made the following rule:
Mrs Biggs was satisfied with the rule, and opened up her garden. However, she was horrified to see one person taking cuttings from some shrubs, and another picking raspberries off the plants she was growing outside the back door. ‘You can't do that’, she said, to which the visitors replied ‘Why not? There's no rule about taking cuttings, or picking raspberries; and we weren't picking flowers. We complied with the rule.’
The following year, Mrs Biggs decided to deal with the problem by changing the one rule into two. The amended list read as follows:
She was pleased with these rules, which dealt with the problems that had arisen, and the following year she opened her garden again. However, on the first day she was once more horrified to see someone picking plums and another taking cuttings from her prize apple tree. ‘You can't do that’, she said, to which the visitors replied ‘Why not? There's no rule about taking cuttings from trees, or picking fruit other than raspberries.’
Last year Mrs Biggs decided to change the rules one last time. The new rules were:
She opened up her garden this time with some trepidation, but none of the flowers or fruit were picked, and no cuttings were taken.
Although this is a very simple story, it illustrates two difficulties with rules. One is that they must be sufficiently specific for their intended audience to know what they are supposed to do (or not do). The other is that they must be sufficiently general that they will cover unanticipated behaviour or conduct. When Mrs Biggs made her first rule, she made it clear that she did not want flowers picked; but she had not given any thought to the fact that things other than flowers can also be picked. She had also not covered the possibility that people reading the rule might assume that this was the only aspect of their behaviour that Mrs Biggs intended to regulate, and that it was therefore permissible to take cuttings (or, for that matter, to do anything else).
Mrs Biggs's second set of rules was an improvement, but not much of one. She realised that the rule about picking would need to cover the picking of raspberries, but (as she subsequently realised) this did not cover the picking of other fruit. Similarly, she introduced a rule about taking cuttings, but the rule was too specific. She had not anticipated that other kinds of cutting can be taken. Her final set of rules is better. What she did was to make them more general – more inclusive. She realised that if she did not want raspberries or plums picked she needed to draft the rule using a term which would include both of these: fruit. And she realised that if she did not want any cuttings taken, she needed to draft the rule more generally and not refer specifically to shrubs.
These points are illustrated in Activity 5. The purpose of this activity is to provide you with an opportunity to explore the ways in which different formulations of a rule can have different (and sometimes unintended or unanticipated) effects. The activity will also help you understand why the choice of language is so important when deciding how to formulate a rule.
Activity 5.1 Helping Mrs Biggs
Imagine that you are Mrs Biggs and that you have opened up your garden once again. You have, you will remember, two rules now:
Everything is going well, and you are receiving lots of compliments from the visitors. However, just as you are about to close up, you notice that your herb bed has been all but destroyed – branches of rosemary have been snapped off, the sage bushes have hardly any leaves on them, and the basil has gone altogether. You say to yourself ‘That's it. It's no good – I've tried my best. I'm never going to open my garden again.’
A visitor to your garden hears you and asks you what the problem is, and you tell them about the herb bed. You explain that you have tried to deal with the conduct of visitors by using rules, but that they never seem to work exactly as you had hoped. The visitor is more optimistic than you are, and suggests that you both sit down and think of a way of regulating the behaviour of people in the garden so that you will feel confident about opening it to visitors next year. The visitor tells you that this will be possible if you think about some simple questions and note your answers:
1 Why do you think your rule about picking flowers or fruit did not stop people picking herbs?
Herbs are neither fruit nor flowers. The rule did not therefore deal with the picking of herbs. It was too specific.
What would you need to do to the rule as it is currently formulated (i.e. without changing the form of it) to stop people picking herbs?
You could add herbs to the list of things which can't be picked.
Now redraft the rule, using its existing formulation.
Your rule might read ‘Do not pick flowers, fruit or herbs‘.
Would this new rule stop people picking seed pods, or picking the bark off trees?
No, it wouldn't!
Assuming you do not want people picking either seed pods or bark, we need to find a way of making the rule even more general. The trouble with specifying the different things you don't want picked is that there are so many. If you specified them all, the list would be incredibly long and unwieldy, and there's always the possibility that you would leave something important off the list. We could have a rule which said ‘Do not pick any of the plants’, but that wouldn't cover the case of the seed pods or the bark because, strictly speaking, these are not plants. There is, however, a way round this problem. It involves changing the verb ‘pick’ to something else, and using a phrase which would include fruit, flowers, herbs, seed pods and bark (and other things you might not want people to damage).
Can you think of a way of redrafting the rule in a more general way, one which would achieve your objective?
The following are some possible answers. Think about each possible rule and identify:
the extent to which it would address your problem
the potential difficulties which it would create for you and for visitors to your garden.
Possible rule 1:
This would certainly make it clear that none of the plants should be touched, and would also deal with the problem of the seed pods and the bark. But it would also mean that visitors would not be allowed to touch things other than plants – fences, bird feeders, and rocks would all be out of bounds, and (taken literally) it would mean that visitors would not be allowed to touch the gate, so getting in and out would be problematic!
Possible rule 2:
This would allow visitors to touch the gate, but what about standing or walking on the grass? Grass is grown in the garden, and it may be that you are quite happy for people to walk on the lawn. Indeed, they may have to in order to get around. This problem could be addressed by:
Possible rule 3:
This would deal with the problem of walking on the grass – you don't handle grass when you walk on it, and the rule covers the (unlikely) possibility of someone picking it. However, neither this, nor any of the other rules would deal with the person who came along with a spade and started digging things up. In ordinary language, a person who digs is not handling, nor are they touching. A pedant with a shovel might argue that, according to the ordinary meaning of the rule, they are not doing anything which has been prohibited. This difficulty could be addressed by the following:
Possible rule 4:
This rule uses a word – interfere – which arguably covers picking, handling, touching and digging, and serves your purpose. It uses a more comprehensive verb, easily understood, and which would therefore be more effective in preventing all the kinds of conduct which Mrs Biggs wants to stop.
We have now seen some of the problems involved in formulating a rule which does what we want. In Part D we continue looking at some of the same issues, but this time concentrating on the question of interpretation.