Table of contents.


Part 1: Assumptions and consequences of the use of a language.
Communication, agreement, and language.
Collective reasoning.

Part 2: Choosing the best action.
Decision making in general.
Decision making with communication: negotiation.
Collective decision making.

Part 3: Some fundamental norms and values and their consequences.
Norms and values for peaceful coexistence.
Making decisions with consensus. Acting responsibly.
Torts and criminal law.

(The table of contents of this summary is equal to that of the book.)


Part 1 shows the line between assertions about which agreement can in principle be reached among people who subscribe the communication agreement, and assertions about which they may disagree even though complying with the communication agreement. If people who subscribe a communication agreement can reach agreement, then they can reach it by collective reasoning.

In part 2 shows how agreement may be reached about assertions involving subjective judgments.

Neither part 1 nor part 2 make assumptions about norms and values. In part 3 such assumptions are made in this sense, that it traces the logical implications of widely shared norms and values. The results have the form of if-then-assertions. The implications are compared with reality.

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1. Communication, agreement, and language.

Agreement is expressed by means of a language. Agreement is meaningful only if binding. Binding agreement therefore presumes binding agreement about a language. For this reason an agreement has to be concluded about the language and its use: the language-agreement. Such an agreement has two parts. In the first place it is an agreement about the way in which a meaning can be expressed in a series of words (a linguistic expression), and about the meaning of linguistic expressions. This includes agreements about the dictionary and grammar. In the second place it is a promise to formulate as well as possible what is believed to be true or correct. Without such a promise there may be speakers and writers, but no communication.

If there is no agreement about a language or another means of communication, then there is no reason to assume that agreement can be reached about anything whatsoever.

If a language-agreement has been concluded, then agreement is possible about linguistic expressions which follow from the language-agreement. Since a language is defined in terms of the world of common observations, this holds in particular for expressions about this world. Lack of agreement about such expressions is equivalent with disagreement about the language-agreement. Disagreement about other types of expressions need not mean disagreement about the language. This applies in particular to those valuejudgments that are not included in, or implied by, the language-agreement. Valuejudgments are strictly personal. The language-agreement is compatible with any given valuejudgment.

Assertions that follow from the language-agreement are called objective. All other assertions will be called subjective. In principle, people who subscribe to the language-agreement can reach agreement about objective assertions. Everybody subscribing to the language-agreement is bound by objectively true assertions. There is no reason however why people should be able to reach agreement about other types of assertions. Opinions about the correctness of subjective assertions cannot give rise to contradictions with the language-agreement. In spite of uncountable efforts nobody has been able to prove that a given (value)judgment should be accepted by everybody. In other words, that there exists a meaningful concept of "objective" beside the concept defined in terms of the language-agreement.

An assertion can be seen as a combination of a group of words on the one hand, and a meaning on the other. As a rule the meaning of a concept cannot be specified completely. A meaning is always somewhat vague. Some concepts are vague by definition. Such as "large" and "social". This may serve the purposes of communication.

By means of a language-agreement one can derive (seemingly) new assertions from given assertions. If required with the help of newly defined concepts. This activity is called reasoning. The result of a reasoning can be formulated as an assertion with the following format: "If (enumeration of starting-points), then (enumeration of the conclusions)".

The language-agreement can be used to prove objective theorems about human behavior. For this purpose the language-agreement suffices; other assumptions need not be made. The theorems have the form: "If the language-agreement is subscribed to and (enumeration of additional assumptions), then (enumeration of the conclusions)", or variants of this form, such as: "Someone who subscribes to the language-agreement and (enumeration of additional assumptions) cannot ... without violation of the language-agreement ".

Part of the law can be seen as a binding definition of a part of the language. Conversely the language-agreement implies part of the law (if it were consistent). In particular a large part of the law of contracts. To a large extent, contract-law guarantees compliance with the language-agreement. The observation that a language-agreement implies agreement about a part of the law explains the phenomenon that this part of the law is common to all peoples on earth (and other planets). A communicative society is not free to define binding rights and duties.

Apart from the assumption of a language-agreement this book tries to make as few assumptions as possible. When additional assumptions are made, they are used to formulate if-then-assertions which can be proven using only the language-agreement.

The most important conclusion of this chapter is that people who want to communicate should be able to reach agreement about assertions using only concepts referring to matters that can be indicated (as in the definition of the language-agreement). This includes assertions about specified assertions. They need not be able to reach agreement about judgments.

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2. Reasoning.

The importance of reasoning stems from the fact that people who are willing and able to communicate by means of a language, and agree with given starting points, should be able to reach agreement about all assertions that can be derived from them by means of reasoning. Such assertions therefore need not be decided upon by means of other methods. This is important because decision-making about assertions that can be derived by reasoning pose the risk of contradictions, and because no methods of collective decision-making are known of which the bindingness is undisputed.

A reasoning is just as strong as its weakest link. A single error, however small, may make a reasoning completely unreliable. It is nevertheless possible that the conclusion of a faulty reasoning is correct. But in cases of doubt about the derivation it need not be accepted on the basis of only the starting points.

Examples of reasonings can be found in mathematics, in the solution of exercises of textbooks in physics, in the science of decision-making and in the argumentation of judges. In politics and the press one rarely finds reasonings in the sense of the definition. In general the starting points, the steps in the reasoning, and even the conclusion(s) are insufficiently specified.

By reasoning one can derive the implications of a given set of assertions. Contradictions can be discovered by comparing implications of different (sub)sets of assertions. Once an error has been found it can be eliminated. In this way a set of assertions, that is: a piece of knowledge, can be corrected and improved.

Strictly speaking a reasoning can add nothing to the chosen starting points and to the knowledge they represent. If conclusions of reasonings seem to be new, this can only be explained as a consequence of human shortcomings. People often fail to see important implications of given knowledge and opinions. This observation is in agreement with the fact that nobody can construct or even reproduce the results of reasonings in mathematics, the natural sciences, the science of decision-making and the law in any given amount of time. It took mankind as a whole thousands of years. There is no basis at all for the assertion that people are "clever", "intelligent", or something similar, in an absolute sense. At most one can formulate assertions about comparisons. For example about the mental capacities of most people with respect to those of pigs.

Reasoning can be difficult because the requirement of consistency means that intermediate results should be checked with a lot of existing knowledge, and because the solution of contradictions requires resourcefulness. Conditioning as well as interests may prevent the discovery of errors and conclusions from being drawn. Reasoning can also be difficult because the acceptance of seemingly new results can lead to more isolation and to tensions with the human environment.

There are many types of errors in reasoning. Three main groups can be distinguished: errors in starting points, implication-errors, and isolation-errors. Implication-errors refer to the drawing of conclusions from preceding assertions (including starting points). Isolation-errors are made when a subreasoning in itself is correct, but forms part of a reasoning that makes assumptions which are incompatible with those in the subreasoning.

As lesser known errors of reasoning may be mentioned: neglecting effects of cumulation, and assuming that small causes have small consequences. The isolation-error is most often made in decision-making. Some alternatives are accepted or rejected on the basis of an absolute evaluation, using other norms than are being used in the evaluation of the other alternatives, and without comparison of all the alternatives. After some time it turns out all too often that an avoidable bad choice has been made.

There is no method for proving the correctness of a reasoning. The only thing one can do is look for errors and alternative reasonings. Looking for errors requires a critical attitude. In this sense that as many comparisons as possible are made with reliable knowledge, and that questions are raised about as many assertions as seem to warrant them.

One may try to correct a reasoning, and see if the correction leads to different conclusions. Sometimes the conclusions can be derived with a different reasoning, or from a (seemingly) different set of starting points.

If conclusions seem to be incorrect one can look for counterexamples. Or one may try to show that logical implications of one or more of the conclusions cannot be correct.

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3. Collective reasoning.

Collective reasoning is discussion with the purpose of reaching consistent agreement, in as short a time as possible, about a reasoning which relates agreed starting points with assertions of which the substance was agreed beforehand. Agreement about a set of assertions is called consistent if the assertions are consistent, and consistent with the language-agreement.

A general condition for reaching agreement about assertions and reasonings is agreement about the language used to formulate the assertions. The participants in the discussion should comply with the language-agreement. This is necessary but not sufficient. The additional conditions are: agreement about the purpose of the discussion, voluntariness of participation; freedom to participate; honesty and integrity of the participants; the participants are bound by what they say and do not indulge in personalities; relevance and motivation of contributions; an active and critical attitude, and consistency.

The commitment of the participants means that the participants are liable for their contributions. This is almost the opposite of the noncommittal usual situation, where people at most promise to contribute to the best of their knowledge, but without giving the least guarantee. Most reports and recommendations of researchers and consultants have this property. Requiring liability can prevent isolation errors.

The conditions may seem stringent. Indeed they are rarely satisfied. Nevertheless, violation will at least result in inefficiency, and possibly in not attaining the agreed purpose.

To discourage violations of the conditions as much as possible a kind of judicial system can be set up. This can limit the influence of violators. It can reduce or take away the participation rights of violators. The judges should be independent. They should therefore not take part in the discussion.

Collective reasoning may be oral and/or written. An oral discussion has drawbacks with respect to a written one. Often there is a counterproductive pressure to prevent silences. In general there is not enough time to think. In general it is impossible to answer all relevant questions on the spot, and more often than not this is unnecessary as well.

The conditions for collective empirical research consist of the conditions for collective reasoning and some additional conditions. The additional conditions are: agreement about the purposes: to describe reality, to summarize the description, and to formulate prescriptions that can be used to derive true assertions about reality from the summary; openness with respect to observations and participation in research; the use of methods that can be applied by others as well; motivation of the relevance of the research; a critical attitude; and as much integration of the descriptions and summaries as possible.

In collective research it is no more self-evident that the conditions are fulfilled than in collective reasoning. A kind of judicial system as proposed for collective reasoning should therefore be recommended for collective research as well. Compliance with the conditions becomes more important the more the results of reasoning and/or research are used in collective decision-making. Without liability and a kind of judicial system there is no guarantee that the given norms are observed, and that the assertions that embody the results of reasoning and/or research can be relied upon.

If there is no agreement about the starting points agreement about conclusions need not be attainable. It is a risky illusion to think that talks, discussion, sufficient information etcetera can eliminate all differences of opinion. What is possible is to go through a communicative procedure which realizes the following aims:

  1. Identification and formulation of the different opinions, and determination of the number of people having these opinions;
  2. Establishing the valuation of the other opinions by people having a given opinion;
  3. Establishing the largest common denominator of the collection of opinions.
In this way the words "public debate" can be given a meaning that respects everyone's opinion, and equally.

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4. Decision making in general.

The question how one should act can be interpreted as the question how one should make decisions.

From a definition of "an optimal decision" one can derive conditions which should be satisfied by a procedure for making such a decision. If a decision is called optimal if it has the best expected consequences, then one can derive a set of conditions that can be considered as the definition of a specific method of decision-making, the so-called evaluation-method. The method requires that an inventory is made of the possible alternatives, and that the alternatives are valuated according to their consequences. In principle the valuation can be made with an arbitrary measuring stick.

Since people can do only one thing at a time, they regularly need to compare "incomparable" alternatives. Sometimes this can be avoided. For example by carrying out different alternatives at different times.

The evaluation-method makes it possible to bring uncertainties into account in a well-reasoned way.

The best possible consequences can only be realized by the choice of the best possible alternative. For this reason only those alternatives can be left out of the list of alternatives that are sure to be worse than those listed.

Important types of alternatives arise from alternatives which incorporate cooperation on the basis of binding agreements. Actions which are relatively unprofitable or risky without an agreement may be the best in a variant with a binding agreement. This type of cooperation can solve prisoner dilemmas. For example in the case of contracts.

Forecasting is difficult, but not all forecasts are equally difficult. The degree of difficulty can be expressed by means of an estimate of the uncertainty of the forecast. In order to make the best possible decisions and to be able to respect inviolable norms these uncertainties should be forecast.

A system of norms and values can be defined as a system which determines the value of consequences of actions, and sets the conditions to be satisfied by actions and consequences. For optimal or even consistent decision-making it is necessary that the system is consistent and ordered. The ordering consists in defining relative importance in such a way that all necessary choices can be made. Ad hoc ordering may cause inconsistency and arbitrariness. Apart from norms and values of which only the relative weight is defined, there may be norms and values which are considered inviolable. This means that they are to be strictly respected, so that no exception is allowed. In most Western states of the years around 2000 only legal procedures are inviolable. Activities causing death and suffering through risks are not. They are weighed against comfort and economic interests.

In many and important practical cases quantification of valuations is necessary. For example if a choice must be made from a continuous spectrum of possibilities. The proportion between the sizes of budget items are just as many quantifications of (relative) valuations.

Von Neumann and Morgenstern have shown that everybody who can make a choice between probabilistic combinations of alternatives has a yardstick for quantitative valuations.

Although quantification can sometimes be avoided, and quantifications need not always be precise, the question in general is not whether quantification is necessary, but rather how to quantify.

In general the execution of a method of decision-making and the duration of the process entail costs. The question is therefore how one should implement or adapt the procedure in order to get as close to the best decision in a given time and with the given means. In efforts to answer this question methods have been developed which can be seen as approximations of the evaluation-method.

Every set of alternatives contains at least one alternative with the largest smallest value. The method of decision-making which chooses this alternative is called minimax. As a general method of decision-making this method is inconsistent. But the method can be the best possible if one considers certain consequences are considered absolutely unacceptable. In such a case an alternative has to be rejected as soon as it brings about the possibility (risk) of these consequences. Regardless of the size of the risk.

Multicriteria-analysis is an approximation of the evaluation-method. The "criteria" are norms and values. The distinguishing feature of this method is the way in which the relevant variables are quantified. It is assumed that it is sufficient to work with a small number of size-intervals. In other words: it is assumed that the position inside such an interval doesn't matter. The method seems most useful if all alternatives are acceptable. It cannot be used if some of the participating decision-makers consider some of the alternatives unacceptable.

Many of the methods of decision-making in practice can be interpreted in terms of the evaluation-method. Three important methods are: decision-making by evaluation of the possible actions or by evaluation of the ends, and decision-making with an ad hoc or incomplete set of norms and values. A fourth method evaluates the alternative "status quo" in an absolute way. That is: without comparison with other alternatives. Often the differences with the evaluation-method lead to different choices, which can have far-reaching consequences.

Use of an incomplete set of norms and values is equivalent to a different hierarchical ordering of the full set of norms and values. It is obvious that this may result in conflicting decisions. Just as obvious as the observation that neglecting consequences of alternatives may result in discontent about at least a part of the consequences. The unwanted consequences can even overshadow the satisfaction about the attainment of the desired ends. For the fact that people, when making decisions, often have eyes only for the desired ends doesn't mean that these are the only things they're interested in.

The methods mentioned in the last paragraphs are inconsistent in this sense, that a decision which is valuated positively may have consequences which considered as a whole are valuated negatively.

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5. Decision making with communication: negotiation.

If people want to reach agreement about matters involving norms and values, then negotiation is necessary. In contrast to collective reasoning however, negotiations between people respecting the language-agreement need not result in agreement. If the negotiators aim at maximization of their well-being, and if this can be furthered by agreements and cooperation, then negotiations can lead to agreement. But in general it is difficult to organize the negotiation process and to devise a draft-agreement in such a way that all parties become convinced that they can do no better than agree with it.

Negotiation is a form of consensus decision-making that allows for communication and interpersonal (and/or inter-organizational) comparison of valuations.

If a procedure for collective decision-making is not compulsory, then the choice of the procedure is necessarily made on the basis of negotiations.

Human behavior in negotiations is hard to tally with the assumption of the existence of a (subjective) utility which depends on no more than the given alternatives. Only after having estimated how the other parties value the different alternatives are negotiators willing to bind themselves to an agreement. In negotiations, people try to satisfy not one but two conditions: they want to benefit from the agreement, and the other parties should not benefit more.

A negotiated agreement has the character of a decision. It implies a value-judgment. By definition there are practical consequences. In general a negotiated agreement has juridical significance. By these properties negotiation can be distinguished from (collective) reasoning.

Where negotiations are concerned, one can distinguish integrative or win-win-problems on the one hand, and distributive problems on the other. In distributive negotiations the parties try to reach agreement about the distribution of something. The sum of the (objective) benefits is fixed in advance. What goes to one of the parties cannot go to another. In other words: a gain for one of the parties is a loss for another. In integrative negotiations the sum of the benefits is not fixed. It depends on the cooperation and creativity of the negotiators. A gain for the one need not mean a loss for another.

Concerning the ethics of negotiation methods the following is noted. If interpersonal comparisons of valuations are necessary, and if it isn't known how they can be made except by using methods which are considered hindering or harmful, and not permitted without explicit consent, then this may be a reason to agree to allow them in negotiations. This is not a matter of all or nothing. Furthermore the agreement can be accompanied by an agreement to let compliance with the agreement be supervised by an external judge.

Negotiations can be complicated for example by adding topics or negotiating parties, use of power, time-limits, and by having the meeting(s) public. Some of the problems to be faced in negotiations lasting only a single meeting differ from those to be faced in series of negotiations or if negotiators may have to cooperate in the future. The subject is far from simple: addition of subjects may complicate matters, but may just as well create solutions where no solutions exist without them.

Up to now there is nothing resembling an integrating and summarizing theory of negotiation. Only little is known for example about the dependence of negotiation results on the factors mentioned. Much is known however about certain types of models of negotiation. To wit: formal games. These models can be classified in a way that can help in the solution of corresponding problems of negotiation. Game theory shows in what sense some types of problems can or cannot be solved.

The most important model of a win-win-problem is the prisoner's dilemma- or everybody-or-nobody-game (E/N-game). It corresponds with social problems of which judges and deposit on bottles are solutions. Analysis of the game shows the conditions a judicial organization should satisfy in order to function as a solution of the corresponding problem. It should for example work in agreement with the people whose problem it is intended to solve, and do what it is established for. No more and no less. Otherwise the costs may become larger than the benefits.

A behavioral pattern which is optimal if it is chosen by a sufficient number of participants is called collectively stable if it remains optimal if a number of participants behave differently. In the game-theory of social phenomena there is an important theorem about series of E/N-games. For such a series the behavioral pattern ("strategy") "positive reciprocity" means that one chooses "cooperation" in ones first turn, and that in each subsequent turn one imitates the other player. The theorem states that this "positive reciprocity" is collectively stable.

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6. Collective decision making.

The NIMBY problem concerns collective decisions which are valuated positively by a majority, and cause lots of hindrance or costs for a minority. NIMBY means: not in my backyard. With the stress on "my". The simplest example is expropriation. For example in connection with the enlargement of an (air)port. The way in which the problem is solved in practice shows that there are cases where it is recognized that majority decision-making is unacceptable if not accompanied by compensation.

Collective evaluation is defined as the application of the evaluation-method by all those concerned, followed by the addition of the valuations per alternative.

The concept of "progress" implies a value-judgment. It is not objective. An activity or change can be called progress indisputably only if it is a Pareto-improvement. Which means that, according to himself, at least one person benefits, and that, again according to themselves, nobody's situation gets worse. Because of the subjectivity of value-judgments it can be maintained in all other cases that the disadvantages outweigh the advantages.

In terms of collective evaluation concepts like progress and public interest can be given an operational definition. Proposals which can be accepted through collective evaluation can always be modified in such a way that they become Pareto-improvements and obtain general consent. The modification consists of compensation of people who have problems with it. If such a modification is not possible or isn't implemented, than the denial of progress or public interest is well-founded.

As long as it has not been proven that the concepts of progress and public interest have an objective meaning collective evaluation shows that assertions holding that certain changes embody progress or public interest are warranted only if they are accepted by all those concerned.

The ordering and quantification of independent norms and values of a system of norms and values can be perceived as a problem if these norms and values are simultaneously considered to be incomparable. In collective decision-making this problem is added to that of the interpersonal comparison. It turns up in all problems of collective decision-making. Apart from decision-making by general consent there is no method that solves or avoids it. But collective evaluation is the only method which is consistent with the evaluation method.

What is called democratic decision-making is a combination of representation and majority decision-making. It can be argued that a large group of people who in principle would like to make their collective decisions by general consent benefits from the appointment of representatives, and from majority decision-making. The argument contains two errors however. In the first place it assumes truthful representation. This could be demonstrated by the presence of instruments for control, correction and recall. In practice this is not the case. In the second place obtaining general consent is only time consuming if the proposal is not valued positively by all those concerned.

In order to be able to make collective decisions without having to quantify value-judgments it has been tried to aggregate orderings. That is: to construct a function which derives a collective ordering from a collection of individual orderings. To be acceptable such a function should satisfy a number of widely accepted conditions. Arrow has shown that such a function does not exist.

A political discussion may be defined as a discussion in which the language-agreement is considered violable, and where language and information are subordinated to preconceived purposes. Since timely, full, and truthful information is necessary to find out whether a decision can be valued positively, it is in general unclear whether decisions taken on the basis of a political discussion can be valued positively.

To a large extent the development of a society is determined by its law. In particular by the prescriptions which it gives for decision-making by political bodies, corporations, and organizations.

Decision-making by political bodies is characterized by quasi-representation and majority decision-making. Representative bodies can be composed in different ways. The two types of most frequent occurrence are: proportional representation and representation by district. By using more than one body of representatives and other organizational and procedural means majority decision-making can be implemented in different ways. They may produce different outcomes. Majority decision-making is an ambiguous concept.

The membership of most organizations is free. Members are better protected against the administration or management than citizens are protected against authorities, including elected officials. They can furthermore quit the organization if they want to.

Decisions can only be good or optimal if all relevant costs and benefits are taken into account. Current law, including liability law, allows legal persons to ignore part of the costs when making decisions. These costs may be shifted upon society as a whole, for example when risks materialize or by taxation. In other words: the legal situation allows for developments which would be valuated negatively if all costs would be taken into account. (In the calculation of national income and related quantities all activities are by definition valued positively. It follows that economic growth does not mean progress).

None of the methods of organized collective decision-making used in practice can be called good if this qualification is to be consistent with broadly shared ideas about "good". Correct application of these methods can easily result in "bad" consequences. In other words: (additional) human errors or misbehavior are not necessary to explain such consequences: the methods in themselves are sufficient to explain them.

Apart from compulsion there is no reason why people who never agreed with the use of a method for decision-making should be bound by the resulting decisions. This also holds for democratic decision-making and the resulting laws and regulation. The observation of Rousseau, that decisions only bind those who have agreed with the corresponding method of decision-making, has never been refuted. Decision-making with consensus is rejected on defective grounds, and people are bound on defective grounds by decisions taken with other methods.

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7. Norms and values for peaceful coexistence.

The subjectivity-principle is the name of the following set of assumptions:

  1. There are no a priori binding (objective) norms and values;
  2. Everyone has the right to valuate independently;
  3. There is no a priori basis for a different treatment of the value-judgments of different people.
In particular everybody is allowed to decide for him- or herself what is good for him or her, and what isn't. The principle asserts that all human judgments are subjective, and do not bind others.

In practice denial of the principle does not only mean a passive belief in the existence of objective norms and values. It also means that knowledge of such norms and values is claimed, and that other people are required to abide by them whenever they are applicable. In this way judgments of different people is given a different value. The judgment of some is binding for others, but not the other way around. In practice denial of the principle means the use of force and a different law for different people.

The language-agreement includes a number of norms and values. People who respect the language-agreement are therefore no longer free in their choice of norms and values. They are bound by the implications of the language-agreement. Their other norms and values should (therefore) be consistent with these implications. The subjectivity-principle means that people are free to conclude or abstain from a language-agreement, and that people who bind themselves by a language-agreement are not thereby bound by norms and values other than those implied by the language-agreement.

Two people (or beings in general) are said to coexist peacefully if the (avoidable) activities of the one do not negatively influence the well-being of the other, and vice versa. With the understanding that someone's well-being is determined by himself, in accordance with the subjectivity-principle.

The right to be safeguarded is the right to remain safeguarded from the consequences of the activities of someone else. Refusal to recognize this right implies that one deprives oneself of this right as well. The refusal violates the subjectivity-principle.

People can coexist peacefully only if their activities respect the subjectivity-principle and the right to be safeguarded.

This theorem does not say how one may or should react upon violation of the state of peaceful coexistence, and why a given reaction is allowed or necessary. This deficiency can be remedied by the reciprocity-principle. It holds that nobody has more rights than he gives to others, and no less than necessary to uphold the rights of others that they gave to him. The reciprocity principle shows how a loss of well-being caused by violation of the right to be safeguarded can be minimized with a minimal loss of well-being of the actor.

The right to be safeguarded and the reciprocity-principle form the basis of an ordered society with a minimum of violence. There is no need to assume that human beings have specific properties.

The right to be safeguarded and the reciprocity-principle do not seem to follow from the language-agreement (or logic). Their denial nevertheless has logical consequences. Someone who denies them thereby gives other people the right to ignore him. In particular he has no ground for requiring compensation for damage done.

Pareto-improvement can only be assured if every group of people has the right to regulate all matters which do not affect outsiders, and to remain safeguarded from the consequences of the activities of these outsiders. For activities which have consequences for outsiders their agreement is necessary.

Decision-making with consensus is the only form of collective decision-making which is compatible with the subjectivity-principle.

Part of the actual law is approximately compatible with the principles mentioned. It can therefore be retained without major changes. Important other parts however are inconsistent with either the right to be safeguarded or the reciprocity-principle, or both. In the laws of the beginning of the 21st century, human well-being is not inviolable. Even if the concept of well-being would have a more objective meaning it would be violated regularly by majority decision-making. People engaged in activities are systematically favored above people who are confronted with the consequences of these activities. The law does not by definition prohibit everything that violates the right to be safeguarded. Such as causing risks which threaten health or life.

Social justice and tolerance are subjective and elastic concepts. Redistribution can take place in one of two ways: voluntarily or forced. The right to be safeguarded is incompatible with an obligatory contribution to social justice.

If tolerance is understood to mean: bearing hindrance or injury caused by activities of others, then the language-agreement offers no grounds for requiring tolerance. The requirement is incompatible with the right to be safeguarded. Permission has to be asked in advance, and may be conditional on compensation and/or guarantees.

In addition to the concepts of state and organization it is convenient to define the concept of "culture" as a group of people having agreement about the norms and values which should be respected by neighbors. States and organizations are not defined in terms of shared norms and values. Membership of a culture is voluntary. States and hierarchical organizations are characterized by compulsion and the use of force. In a culture these are excluded by definition.

Discussion is generally considered as the standard method for the solution of conflicts. But conflicts with subjective dimensions need not be solvable that way. Neither discussion nor reasoning needs to bring agreement about norms and values. The same applies to assertions about the (un)desirability of specific activities. Experience tells us that some negotiation problems can be solved by talks. But these talks do not yield agreement about norms and values. They only yield agreement about the positive valuation of one or more specific alternatives.

The illusion that talks can bring agreement about norms and values precludes the application of other methods to realize peaceful coexistence. The well-being of all those concerned may very well be served by the avoidance or termination of the mixing of members of sufficiently different cultures in the same street, neighborhood or state.

Norms and values and the well-being of groups of people cannot be aggregated or averaged in an objective way. This explains the almost exclusive use of the concept "interest" in the decision-making processes of states and hierarchical organizations. As a consequence of the vastly increased influence of states and organizations thinking in terms of interests is beginning to dominate activities of people as well. In general, in law and politics only interests are mentioned, and only interests count. Not their other (value)judgments. In particular not those relating to non-material aspects of their well-being and those of future generations.

There is no ground for anthropomorphic treatment of organizations. Neither is there a reason to give them the right to be safeguarded in addition to the rights of the people they consist of. In general unconditional extension of the right to be safeguarded and human rights to states and hierarchical organizations is incompatible with human well-being.

Use of the word "representative" for people who cannot be called back is unwarranted and misleading. For this reason and because of majority decision-making the modern democratic systems are essentially violent. Political parties are violent as well: they are quite willing to act contrary to the opinions of minorities. People who oppose the use of force can only agree with a system which has the (voluntary) approval of everyone concerned.

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8. Making decisions with consensus. Acting responsibly.

Someone who has agreed to communicate need not for that reason agree with valuejudgments which are not included in, or follow from, the language-agreement. Neither does the language-agreement imply approval of forms of collective decision-making which mean that decisions are made without agreement of those concerned.

Only if a decision is made with consent of all those concerned is it justified to assert that the (subjective) benefits outweigh the (subjective) costs, that it is in the public interest, or that it means progress. It is untrue in the logical sense that decision-making by consensus can prevent making decisions which are in the public interest.

The objections against decision-making by consensus are partially based on misconceptions about the meaning of decision-making by consensus. Decision-making by consensus does not mean that everybody should agree. Only those people should agree who may experience consequences of the decision.

Rejection of making decisions by consensus means intolerance, approval of the use of force, and ignoring the subjective character of (value)judgments.

The violence which is an intrinsic property of the present democratic systems is not soundly justified. Someone who uses force without indisputable justification has no other grounds to require other people to refrain from the use of force.

Introduction of decision-making by consensus is not a matter of all or nothing. There are many possibilities for the gradual elimination of practices which ignore the opinions and interests of part of those concerned, and the adoption of consensus-decision-making. Some are summed up in the recommendations.

Concepts which are linguistically related to the word "responsible" refer to avoidable behavior, and therefore decision-making, which have consequences not only for the decision-maker(s). On the one hand the actor thinks that he somehow needs the agreement of those concerned, and on the other hand he thinks that it is justified to exclude these people from the decision-making process. He thinks that it is sufficient to act responsibly.

In common parlance the spectrum of meanings of the concept "responsibility" is so wide that it is even used to indicate that something is done "on one's own responsibility". In other words that no responsibility is due. It is clear however that communication is served by limiting the use of compositions with "responsib" to situations where someone can be called to account by people who can pass binding judgment on the activities he or she is responsible for.

The use of compositions with "responsib" has many similarities with the use of the expressions "take into account" and "take into consideration". Somebody who finds that he should act responsibly has the idea that he should take certain opinions, persons or matters into account or consideration. But not too much. "Acting responsibly" has something ambiguous, and so has "take into account". It is supposed to be a compromise between authoritarian decision-making and deciding with consensus. It is the actor who decides what are reasonable and unreasonable requirements and conditions, and in how far they should (or "can") be taken into account.

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9. Torts and criminal law.

Without rules or norms that bind everyone, and adequate rules for the treatment of breaches of these norms, most human activities and forms of cooperation would either be impossible or be permanently hampered by conflicts. The law is a collection of binding rules. It may include prescriptions for the system that supervises compliance with the law, and for the reaction to breaches of the rules. The system of supervision may for example consist of police and a judicial system.

The law is man-made and changeable. It strongly influences the development of human society and life on earth.

The more consequences people experience from one another's activities, and the more types of cooperation they invent, the more agreements they need to make about them, and the more is required of the law. In other words: the development of human society requires a concurrent development of the law. It is well known that the law establishes what is allowed and is not allowed. But to a large extent it also determines what can and cannot be done. In this way the development of a society is strongly preconditioned by its law.

In the history of law one can distinguish roughly three phases. Namely the period preceding the Roman republic, the period of Roman law, and the period after 1800. The last one is characterized by an tremendous growth of government. The percentage of social and economic activities that is regulated, subsidized and/or executed by them has multiplied manifold.

Laws are made by governments. They are specified incompletely. In general they need to be interpreted and supplemented when they have to be applied to a specific case. This is done by a judge. The collection of interpretations and supplements is called jurisprudence. It is part of the law.

An important distinction is that between the part of the law regulating (organizing) the administration of justice and its complement. The first part is called procedural law, the second part substantive law. The law may give someone a right to a judgement. It is said that this person is justiciable. Not every violation of the law can be brought before a judge. Neither is every violation punishable by law.

Almost everybody's life is affected by constitutional, civil, and criminal law. Civil law determines the conditions to be satisfied for the use of words like "hire" and "incorporated" to have legal implications, and defines these. It gives prescriptions for the procedure to be followed in order to obtain a sentence of a judge in case of a conflict. Criminal law enumerates (criminal) actions and the punishment they may invoke. It organizes and regulates prosecution, adjudication and actual punishment of activities which are punishable according to criminal or other laws. Typical characteristics of criminal law, which distinguishes it from civil law, are its (supposedly) preventive effect, and the necessity to track down perpetrators and to prove that they punishable in the sense of the law. In most cases of infringements of civil law the actors are known.

Constitutional law prescribes the composition, competence (power), and terms of reference of governmental and administrative bodies. It prescribes the procedures for the enactment of binding law and regulation. In particular it regulates the collective decision making of the population of a state (or federation) as a whole.

Most of the law implied by the language agreement is included in civil law. The complement has a subjective basis.

The weighing of interests plays an ever increasing role in the administration of justice and in government. This can be explained by the observation that interests represent the only type of value that is recognized as a value by almost everyone. In particular by both natural and legal persons. Organizations and governments moreover attach predominant significance to financial and economic interests. The weighing principle is not applied consistently however, but in a selective way. Procedural law and the interests of suspects and convicts are almost inviolable in comparison with the interests of (potential) victims. On the one hand, norms embodied in the law are supposed to be respected. On the other hand the costs of the observation of some norms are weighed against their proceeds. Human life is considered to have a finite value. In general it is unclear what is supposed to be taken into account in the weighing, and what not, and why. And of course how. For valuations are subjective. As a consequence of this development the observation of legal norms regarding the lives and health of men, animals and environment are made to depend on economic interests in an arbitrary and inconsistent fashion.

The most important aim of criminal law is the punishment of specific infringements of the law. Even in the most favorable cases, recovery of the situation existing before the infringement, or compensation for its consequences comes in the second place.

The punishment is determined independent of the costs a suspect causes by trying to remain out of the hands of justice. Law and jurisprudence seem to assume that as far as crimes are concerned, there is no duty to collaborate with the judiciary, or at least that one is not liable for the costs of obstruction. Only a minor part of these costs are paid out of fines and reparation payments. Which means violation of the right to be safeguarded.

At present this right is not comprised in the law. Observation of the conditions for communication is not a legal duty. Not even for administrators, executives and representatives. And there are more incompatibilities between the current law and the right to be safeguarded. The liberty principle leaves people and organizations free to do what is not expressly forbidden and what has not been proven to be harmful. Liability law may have some preventive action. But it does not forbid activities that may entail irreparable harm such as death and disfigurement, and activities that cause damage that cannot be compensated by those who could have avoided them.

According to criminal law, in general only a public prosecutor may institute a criminal action. For practical reasons, such as budget limitations, he can investigate only a part of the crimes that are reported or detected. So he has to make choices and use and/or set priorities. Public prosecutors are members of hierarchical organizations. They are directly or indirectly responsible to politicians or to people appointed by politicians. In particular they have to account for the priorities which they use in order to decide which cases to follow through and which to drop. As a rule the priorities are set in the higher levels of the hierarchy, or by de political leadership.

When fixing the punishment the judge has to choose from a few types of punishments. The most important are the fine, the community service and imprisonment.

Activities are only punishable if they have been declared punishable by the law. This can only be in accordance with the right to be safeguarded if the law is complete, or if the law would recognize this right and its inviolability. At present this is not the case. Especially politicians and executives are spared. If not in theory, then in practice. This may go so far as to give the impression that there are different laws for ordinary citizens and those in positions of power. In politics lying and fraud are neither crimes nor punishable. In their assemblies members of parliaments and governments can say what they want. The Constitution explicitly states that they cannot be held liable for their statements and cannot be prosecuted because of them. Apart from their vote at the next election, voters have no legal means to compel ministers and representatives to tell the truth and the full truth, and to tell it timely. In fact, corruption of political functionaries can only be punished by their peers. In many political systems they can only be punished by members of the same coalition. Unlawful expenses cannot be recovered. Neither from themselves, nor from the coalition which supports them.

Furthermore there is a difference between the punishment of natural and legal persons. The maximum punishment of legal persons is not proportional to their size or the damage caused. Natural persons can be punished with prison, legal persons cannot. Neither are they punished with temporary closure, let alone the death penalty. If imprisonment is supposed to have a preventive effect, then it is unclear why closure of organizations should not work similarly.

Concepts like "intention" and "fault" are defined for people, and only for people. For groups of people, and for legal persons and their management, they cannot have the same meaning.

The given situation can be partly explained from the fact that the development of the law lags behind the development of society and knowledge. The maxim of 1800, that well-being and progress are served best by giving legal persons the greatest possible freedom, has never been evaluated and reconsidered in the light of two centuries of experience.

An important type of legal inequality arises from differences in financial means and differences in costs of lawyers of different abilities. The consequence of these differences is that larger legal persons and criminals need not mind legal norms as much as other persons.

There is no general agreement about the theories of criminal law that might serve as a basis for criminal law. None of the theories corresponds to actual criminal law.

There are only few theories which discuss the relationship between a specific infringement of the law on the one hand, and the quality and quantity of the punishment on the other. The most obvious condition that a punishment can be required to satisfy is that it makes the corresponding type of crime unprofitable. In general criminal law does not satisfy this condition. For this reason it cannot reasonably be expected to have a preventive effect. It should furthermore be noted that an increase in the maximum or average punishment will have no effect unless the condition is satisfied.

Most theories of criminal law give rather one-sided attention to the rights of the offender. None of these theories explains why innocent people should contribute to the cost of a system intended to prevent crimes and reduce their consequences. In reality the inviolability of the rights of offenders sharply contrasts with the facility with which violation of rights of others is allowed. Criminal law gives offenders rights which they don't give other people, and deprives other people of rights which they do give others. A relatively large part of the costs of the system of criminal law enforcement is borne by people to whom criminal law does not or hardly apply.

The right to be safeguarded and the reciprocity principle leave no room for "punishment" and criminal law as we know them. In general punishment will have to be replaced by repair and compensation for damage and costs of repair. Only when the consequences of violations are irreparable or unpayable can punishment in the traditional sense be retained. But even then maximal repair, compensation of the victims, and prevention of repetition of criminal behavior must have priority.

If there are convincing grounds for fearing a violation of the right to be safeguarded that can result in irreparable suffering or damage, then prevention may require deprivation of rights. As few as possible, but as much as necessary. Within the bounds set by the last condition the offender may choose the rights he prefers to forgo.

The costs of the system of prosecution, judgment and execution of judicial decisions have to be borne by those convicted. Other people may contribute to these costs if they wish to. There is however no tenable ground to require non-convicted people to follow this example. It will be clear that on the average this means much heavier punishment. Even if the word "punishment" is not justified. Those convicted need do no more than repair or compensate the damage they caused, augmented by the costs which have to be made in order to obtain repair or compensation.

There is no objective reason to restrict the number of types of punishment. The reciprocity principle deprives the convict of the rights which he violated. In agreement with convict, victim and, where applicable, other people affected, deprivation of these rights may be replaced by deprivation of other rights.

From the point of view of prevention of irreversible undesired consequences one can prescribe norms in all kinds of fields. For example for the composition of exhaust gases. But observation of a norm does not exempt from liability.

Even if elected instead of appointed, prosecutors tend to be subject to political pressure. The size of the budget available for prosecution (and salaries) is fixed by political officials and bodies. For this reason the prosecutor cannot be an appropriate institution for the prosecution of political officials and institutions. That is, even if their activities are not kept outside the reach of public and private law. To cope with this problem the independent counsel has been created to investigate federal crimes of high officials. Apart from this exception none of the democratic constitutional states has a properly functioning system for the discovery, prosecution and adjudication of violations of (constitutional) juridical norms by public functionaries and institutions.

For the following reasons it is doubtful whether lawmakers and lawyers have enough knowledge and understanding of probability theory to be able to understand and solve certain inconsistencies in the law. In particular to design criminal law in such a way that it can have a preventive effect on people who weigh pros and cons, and in such a way that unrelated ("innocent") people are safeguarded. In the first place the law does not declare the creation of life-threatening risks to be a violation of human rights. This is inconsistent with the often painstaking respect for the rights of convicts. Apparently it isn't realized that in general risks imply the certainty of victims if they exist long enough. People who did not agree with the risk-causing activity lose their lives, get ill or handicapped, or have their babies disfigured. In the second place law nor judge take account of the probability of getting caught and the probability of having a crime proven. They seem to assume that this probability is 1. In other words: that criminals are always found and always brought to justice. Ignoring the fact that these probabilities are much less than 1 means for example that the goal of prevention is not attained by far. Somebody using his head and calculating his chances, and is not bothered by subjective norms, can in general ignore criminal law to his profit. Which explains at least in part why this happens so often. In the third place one may note that the works of modern students of criminal law do not provide a refutation of the observations and arguments of Bentham and others on this subject. It is hard to see how this can be explained otherwise than from lack of understanding.

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