Solving Lewis and Hart’s Problems with Normativity, Evolution, and Disagreement (Rough Draft – Future APA Submission of 3k Words)

This is my paper version of the talk I gave in August at Tufts for the International Social Ontology Conference. This is just a rough draft. This will be a future APA Conference submission of 3k words. Eventually, I’ll write a 9k words version to submit to journals.

Solving Lewis and Hart’s Problems with Normativity, Evolution, and Disagreement

Introduction

David Lewis and HLA Hart have very similar problems with their accounts of social conventions in Conventionand The Concept of Law, respectively.  They both want to capture an obligatory character of social conventions. They both see an obligation to comply as being an essential feature of social conventions.  They both think that the only way to capture this obligatory character is if there is a single rational thing to do in a situation that gives rise to a social convention, which is to conform as everyone else in one’s population conforms.  They both think that if there is a single rational thing to do, then you have something very closely akin to an obligation to do that one rational thing.  But, these Lewisian social conventions only arise in situations wherein everyone is particularly motivated to align their beliefs and expectations with one another and to coordinate their behavior and achieve unanimity of conformity.  The problem with Lewisian social conventions is that they must pop into and out of existence instantaneously, and they can neither evolve nor devolve over time. Nor do they allow for disagreement or dissent or pluralism.  This is the price that one must pay to capture the obligatory character of social conventions.  But, we know that social institutions evolve and devolve over time.  People disagree about what the law is and should be. And, despite this fluidity and pluralism, we still behave and speak as if there were a real obligation to follow the law and to comply with the social conventions of one’s social group.  

The first step to solving this problem is to adopt Margaret Gilbert’s brilliant insight that social conventions are social group constituting.  The fact that a population has a social convention constitutes that population as a social group for that reason, if for no other.  The second step is to recognize the role that practical authority plays.  This is the case, even for Lewisian social conventions, because of the risk dominance of the status quo position.  No one is going to conform to an alternate Lewisian social convention, unless she knows that her entire community is going to do likewise.  The worst possible outcome is for anyone to fail to coordinate. Practical authority solves this problem, because the authority makes it known how everyone in the social group will behave, allowing the social group to overcome the risk dominance of the status quo position and move between alternate Lewisian social conventions.  The third step is to recognize that all social conventions are step public social goods.  This is the case because the authority is a freeriding defector.  Now, we no longer require unanimity to generate normativity.  Once the step public social good of the social group itself has been generated, the social group rests upon an equilibrium point.  No one wants to defect, because the social group would collapse back to the status quo.  And, the authority has no incentive to conform, because she fares far better by continuing to defect.  Thus, there is a single rational thing to do in this situation, which is to continue to conform to the social convention.  Now that we no longer need unanimity to achieve normativity/obligation, we can have sub social groups within a larger social group with their own sub social conventions that wax and wane over time.  Thus, we can have evolution and disagreement.  And, we have solved Lewis and Hart’s problems.  

The Obligatory Character of Social Conventions?

Both David Lewis, in Convention, and HLA Hart, in The Concept of Law, are trying to capture what they construe as an essential feature of social conventions, namely, their obligatory character.  Hart wishes to capture a real obligation to comply with the law, and Lewis wishes to capture a real obligation to comply with the social conventions of one’s social group.  Hart speaks to a legal system being a union of primary and secondary social rules, rather than conventions, precisely because he is intent on capturing the obligatory character of the legal rules that comprise a legal system, but he is in fact speaking of a union of primary and secondary social conventions.  This point of fact does not escape Hart.  He is neither invoking a mysterious supra-individual normative / obligatory character, nor one that emanates or arises from the aggregation of the intentions / agency of the individual social group members.  He knows that he has only the preferences, expectations, and actions of the individual social group members with which to work.  Neither Lewis nor Hart are under any illusions about this point.  Both Lewis and Hart are fully aware that they have only an individual instrumental (means-ends) rationality from which to generate something akin to an obligation to comply with the social conventions of one’s social group.  As Margaret Gilbert would say, both Lewis’ and Hart’s accounts of social conventions are individualistic rather than holistic.  

But, this is also why Margaret Gilbert would say that both Lewis’ and Hart’s accounts of social conventions fail to capture the essential feature of obligatoriness.  Can there be a real obligation to comply with the social conventions of one’s social group, particularly with respect to Lewis’ and Hart’s accounts thereof?  And, moreover, is there a real obligation to comply with the social conventions of one’s social group, regardless of whether Lewis’ and Hart’s accounts thereof are able to capture this allegedly essential feature?  The simple answer is no; there is no real obligation to comply with the social conventions of one’s social group, nor the law, for that matter.  There are no normative facts.  There is no fact of the matter about how people should reason; there is only how people do reason.  But, I’m far more interested in explaining why most people most of the time behave and speak as if there were an obligation.  An account of social conventions should capture whatever it is about social conventions that motivates most people most of the time to behave and speak as if there were an actual obligation to comply.  This something will be something closely akin to obligation, or, at least, normative character, or as close as Lewis and Hart can hope to get under the constraint of individual instrumental rationality. An account of social conventions like Gilbert’s, one that enshrines a real obligation into its social ontology, obscures whatever it is about human and social psychology that compels most people most of the time to behave and speak as if there were this real obligation to comply.  Both Hart and Lewis think that they are able to capture something closely akin to obligation, but they pay a heavy price for it.  The price they pay for it is only being able to give an account of what Margaret Gilbert calls Lewisian social conventions.  

The Obligatory Character of Lewisian Social Conventions

In “Social Convention Revisited,” Margaret Gilbert hews very closely to Hart’s understanding, in The Concept of Law,of what it means to have an obligation to comply with the social conventions of one’s social group. You have an obligation to comply with your social group’s social conventions, if the other members of your social group are in a position to demand such compliance and sanction you for non-compliance.  But, if we’re only working with an individual instrumental rationality, then it doesn’t seem that we can have a real obligation.  Both Hart and Lewis seem to think that there can be something closely akin to a real obligation when there is a single rational thing to do in a situation that gives rise to a social convention, which is what everyone else in your social group is doing.  If there is a single rational thing to do, then you have something closely akin to an obligation, even in terms an individual instrumental rationality, to do that one rational thing.  And, if there is a single rational thing to do in a situation, then everyone in your social group has something closely akin to an obligation to do that one rational thing.

In The Concept of Law, Hart argues that this is what distinguishes social conventions (or rules, as he would put it, because there is an obligation to comply), from mere patterns of behavior, descriptive norms, and lesser social rules, such as rules of etiquette.  A social rule is a social rule, for Hart, because there is a real pressing need for everyone in the social group to conform thereto.  No unilateral deviation from the rule can be tolerated.  Everyone in the social group fares far worse if anyone deviates.  The only rational thing to do in the situation that gives rise to the social rule / Lewisian social convention is what everyone else in your social group is doing.  This is what places your social group members in a quasi-position of being justified in demanding your compliance and sanctioning you for non-compliance.  But, then, social conventions, Lewisian social conventions, only arise in situations wherein everyone in a population is particularly motivated to align their beliefs and expectations with one another and to coordinate their behavior to achieve unanimity of conformity.  

The text book example of a Lewisian social convention is driving on the right or left hand side of the road.  If everyone drives on the right hand side of the road, then no one wants anyone to drive on the left hand side of the road, and everyone fares very poorly (injury, property damage), if anyone drives on the left hand side of the road.  The only rational thing to do is to drive on the same side of the road as everyone else in one’s community.  This is what places all of the social group members in the quasi-position of being justified in demanding compliance and sanctioning for non-compliance. This is why there is something very closely akin to obligation in situations wherein Lewisian social conventions arise.  We can certainly appreciate why social group members would behave and speak as if there were a real obligation to comply with the Lewisian social convention of driving on the right hand side of the road.  

The Problem(s) with Lewisian Social Conventions

With respect to a situation that gives rise to a Lewisian social convention, the worst possible outcome is a failure, any failure to coordinate.  Lewis allows for merely negligible deviation.  No one wants anyone to deviate.  But, this entails some very unfortunate consequences with respect to Lewis’ and Hart’s accounts of social conventions.  Their accounts of social conventions are accounts of Lewisian social conventions.  And, Lewisian social conventions are severely constrained.  Lewisian social conventions must pop into and out of existence instantaneously.  Lewisian social conventions can neither evolve nor devolve over time.  Lewisian social conventions do not allow for disagreement or dissent or pluralism.  This is the price that one must pay to capture the obligatory character of social conventions.  If obligatory character demands unanimity of conformity at every moment, then social conventions that possess an obligatory character can never evolve or devolve over time.  There can be no disagreement about what the social convention is.  Ronald Dworkin famously offers a withering critique of Hart’s account of a legal system for just this reason.  Dworkin was actually quite brilliant to notice that Hart’s account of a legal system, because his legal system is a union of primary and secondary Lewisian social conventions, doesn’t allow for theoretical disagreement about what the law is or should be.  

Can We Modify Lewis’ Account of Social Conventions?

As Ronald Dworkin so brilliantly pointed out, we disagree about what the law is and should be.  Likewise, we have strong pre-theoretical intuitions that our social conventions evolve and devolve over time, waxing and waning, arising and collapsing, as quasi-rational individual agents pressure the evolution and devolution of their social groups’ social conventions.  And, despite this fluidity and pluralism, we still speak and behave (most of us; most of the time) as if there were a real obligation to follow the law and to comply with one’s social groups’ social conventions.  

So, both Lewis’ and Hart’s accounts of social conventions are terrifically and woefully inadequate. Both Lewis’ and Hart’s accounts of social conventions are merely accounts of Lewisian social conventions. Lewisian social conventions only capture one class of social conventions, social conventions with the highest degree of conventionality and the strongest normative (perhaps obligatory) character.  A “degree of conventionality” is Lewis’ term, but regardless of his circumspection, he still allows for merely negligible unilateral deviation.  He only allows for social conventions of the very highest degrees of conventionality to exist, i.e., Lewisian social conventions, because these are the only social conventions that may boast something closely akin to an essential feature of normative (and perhaps obligatory) character.  

Regardless of the inadequacies of Lewis’ account of social conventions, I still think there is so much that Lewis gets right about social conventions, including arbitrariness and common knowledge.  Contra Gilbert, I believe that individualistic accounts of social conventions are the only ones that avoid disqualification for being metaphysically suspect.  Lewis and Hart are both right to acknowledge that we only have the preferences, expectations, and actions of individual social group members with which to work. But, they are also both right to notice that most people most of the time behave and speak as if there were a real obligation to comply with the law and one’s social conventions.  They err in thinking that the only way to accommodate both essential features (normativity and unanimity in conformity) is for social conventions to only arise in situations in which there is but a single rational thing to do, which is what everyone else in one’s social group is doing. We want to capture normativity (and maybe even something closely akin to obligation) without demanding unanimity in conformity.  But, can we modify Lewis’s account of social conventions to capture evolution, disagreement, and pluralism, while also capturing something akin to normative (and perhaps obligatory) character?  I think we can fix Lewis’ account of social conventions.  

How to Fix Lewis’ Account of Social Conventions

We can modify Lewis’ account of social conventions to accommodate all of the different classes of social conventions, of varying degrees of conventionality.  And, at one and the same time, we can continue to capture the quasi-obligatory character that Lewis captures, i.e., we can retain the essential feature that there is but a single rational thing to do for someone party to a social convention, which is continue to conform to the social convention. Lewis takes himself to have captured as much of a quasi-obligatory character as he requires, if he is able to capture the fact that there is a single rational thing to do for someone party to a social convention, which is what everyone else in one’s social group is doing.  If there is a single rational thing to do, then Lewis takes it that you have something very closely akin to an obligation to do that one rational thing.  And, that’s as much as he requires, because this essential feature explains why most people most of the time behave and speak as if there were a real obligation to comply with the social conventions of one’s social group.  

How are we to go about modifying Lewis’ account of social conventions to allow for evolution and devolution whilst there being a single rational thing to do?  The first step is to adopt Margaret Gilbert’s brilliant insight that social conventions are social group constituting.  The fact that a population has a social convention constitutes that population as a social group for that very reason, if no other. The second step is to recognize the role that practical authority plays.  Practical authority makes it known how everyone in the social group will behave.  Ultimately, I am going to say that all social coordination requires practical authority. The third step is to recognize that all social conventions (and social groups) are step public social goods. This is the case because the authority is a freeriding defector.  Combining these 3 steps results in social group (and sub social group) constituting social conventions (institutions) that rest upon equilibrium points (meaning there is a single rational thing to do for one party to the convention, i.e., conform), but that can also evolve and devolve over time.  Thus, we have normative (and perhaps obligatory) character without requiring unanimity.  

Step One – Social Conventions are Social Group Constituting

I disagree with a great deal in Margaret Gilbert’s account of social conventions in “Social Convention Revisited,” BUT I think her insight that social conventions are social group constituting is absolutely brilliant.  The fact that a population has a social convention constitutes that population as a social group for that reason alone.  This is really important for my account.  When a population generates a social convention, the population generates a social group.  I refer to Gilbert’s account of social conventions (really social rules) as a paradigmatic wholly normative account of social conventions.  For her, the obligatory character of social conventions is the paramount essential feature, and she requires neither conformity, nor expectation of conformity, nor preference for conformity.  Gilbert is highly critical of Lewisian social conventions, which she refers to as individualistic, rather than holistic, and she argues that there can be no obligation to comply with Lewisian social conventions.  

Step Two – The Role that Practical Authority Plays

Social coordination requires practical authority.  I employ Raz’s definition of authority as the power to alter the protected reasons of someone else –a protected reason is a first order reason to do something and a second order reason to stop considering any alternate actions.

 This is the case, even for Lewisian social conventions, because of the risk dominance of the status quo position.  No one is going to conform to an alternate Lewisian social convention, unless she knows that her entire community is going to do likewise. The worst possible outcome is for anyone to fail to coordinate.  Practical authority solves this problem, because the authority makes it known how everyone in the social group will behave.  The conferral of authority upon someone is a secondary social convention that piggy backs on the primary coordination problem.  To avoid regress, authority is always assumed, then conferred, out of necessity, in order to solve the primary coordination problem.  I rely upon empirical social psychological work to bolster the claim that authority is always assumed, then conferred, out of necessity.  

Step Three – Social Conventions (and Social Groups) are Step Public Social Goods

An authority is a foresighted, risk tolerant individual.  Authorities do not always arise in populations, even when we need them. Sometimes coordination problems go unsolved.

When an authority does arise, it is because someone was able to see that it was in her long term interest to communicate an instruction to a population, at a cost, in order to reap the position of being an authority in a social group –someone who is a freeriding defector and not actually a party to the social convention, leaving her open to moving the social group to alternate social conventions.  This is why social conventions are step public social goods.  The social group rests upon an equilibrium point immediately upon generating the social group via the social group constituting social convention.  There is a single rational thing for the parties to the social convention to do, which is to continue to conform.  The authority has no incentive to do anything other than continue to defect.  Thus, we can have normative (and perhaps obligatory) character sans unanimity.  It is at least rational, if not obligatory, to affirm your social identity by continuing to confer power upon the authorities in your social group.  

Conclusion – We Fixed Lewis and Hart’s Problems with Normativity, Evolution, and Disagreement

Now that we have an account of social conventions that recognizes that social conventions are social group constituting step public social goods (wherein the social group is itself a social good generated, even if there are others) including freeriding defector-authorities with the power to move the social group amongst alternate social conventions (providing arbitrariness and common knowledge).  Now, we can have normative (and perhaps a quasi-obligatory) character sans unanimity.  There is a single rational thing to do, which is to continue to conform to the social convention, if you are a party thereto.  If we have normative (and perhaps a quasi-obligatory) character sans unanimity, we can have social groups and sub social groups evolving and devolving over time (growing and subsiding), along with disagreement and pluralism.

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