The government has no choice but to impose arbitrary rules

By Wim Dubbink, Professor of Organization and Business Ethics 

This article was originally published in Dutch at www.socialevraagstukken.nl

In the public debate about the coronavirus rules, opponents of the government’s policy will often say things like: why is a four-person household allowed to host a two-person household in their home, while that same two-person household is not allowed to host the four-person household in their home? After all, the current rule is that each household can host no more than three adults per day. Another example: even though there is no clear dividing line between professional sports and semi-professional sports, one is allowed while the other is not.

The observation that the government’s policy is “arbitrary” is usually not just intended as a humorous but isolated comment on the curious nature of our complex, modern society. Rather, it tends to be used as part of larger arguments.

Should we ignore certain rules because they are arbitrary?

In most cases, these arguments lead to one of two conclusions. The first is that the Dutch government is managing the pandemic poorly because the rules it has imposed are arbitrary. From this perspective, the observation that the rules are arbitrary gives citizens the right to express a negative value judgment on the functioning of the Dutch government.

The second commonly drawn conclusion is that “we the people” have the right to ignore the rules, or at least to interpret them as we see fit – again, because they are arbitrary. Here, I would like to raise the following question: is it fair to draw these conclusions on the basis of the arbitrary nature of the rules in question?

It goes without saying that a government must do its best to formulate rules in such a way that they are as consistent as possible. For one thing, this benefits enforcement. And if the rules a government implements are so arbitrary that they turn society into a Kafkaesque nightmare, that government will naturally lose legitimacy.

But the question is whether “arbitrariness” in itself suffices to give citizens certain rights – the right to say that the government is not functioning properly, for example, or the right to negotiate an exemption from a certain rule. In other words: is an appeal to arbitrariness always relevant, or is it only valid for exceptional cases?

I would argue the latter. This would mean that whoever wants to claim a certain right based on the argument that a rule is “arbitrary,” not only has the obligation to prove that the rule is arbitrary, but also that their specific case qualifies as exceptional. Otherwise, the argument should be considered invalid. In the current public debate, this additional burden of proof is often overlooked.

The fact that a rule is arbitrary does not give you the right to ignore it

Under normal circumstances, the fact that a rule is arbitrary – or the presumption that it is – does not give citizens the right to ignore it. To understand this, we must distinguish between the formal need to impose a rule and the actual content of that rule.

The former concerns the question of whether a rule is necessary, while the latter refers to what the rule actually says. The moral legitimacy of a rule – and, by extension, its necessity – is always easy to demonstrate. To do so, you simply need to show that a certain principle matters. The content of a rule can also be legitimized, but only to a certain extent, as it is never possible to exclude a certain degree of arbitrariness. Ultimately, reference must be made to a factual context, which is always historic – and therefore arbitrary. Let me clarify this with an example.

Example: the age limit for compulsory education

A government can only make it compulsory for children to go to school if it can present a convincing argument for this. The first formal step towards establishing the legitimacy of such an argument is to find an argument for compulsory education as such. Once this has been found, the second step is to draw a precise and meaningful age limit. In determining that age limit, we inevitably encounter arbitrariness. We might say that all children from the age of four must attend school. But why draw the line there? Why not draw it at three and a half, or three years and ten months, or four years and one week?

At a certain point, it is no longer possible to find arguments for why the limit should be drawn at one specific age instead of another. This means that the second step always entails a degree of arbitrariness. In order to make coexistence possible at all, it is therefore necessary to give authorities the right to make decisions that resolve this unavoidable arbitrariness.

We need a government precisely because arbitrary decisions must be made

In other words: because we as a society ultimately have to make a large number of arbitrary decisions, we need a government. Because by making decisions, governments resolve the problems presented by the arbitrary nature of things. Things are no longer arbitrary because the government says so. It therefore makes no sense to use the argument that a rule is “arbitrary” against the government without providing further argumentation.

The coronavirus pandemic shows that arbitrary decisions can be a matter of life or death: why should we keep a distance of 1.5 meters from others? Why not 1 meter, or 2 meters? To a certain extent, this is an arbitrary decision. And it is precisely for this reason that the government has the right to draw a line in the sand.

Date of publication: 6 November 2020