Dworkin - The Model of Rules

The Model of Rules Author(s): Ronald M. Dworkin Source: The University of Chicago Law Review, Vol. 35, No.
1 (Autumn, 1967), pp. 14-46 Published by: The University of Chicago Law Review Stable URL: http://www.jstor.org/stable/1598947 . Accessed: 16/08/2013 17:18
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The Model of Rules

Ronald M. Dworkin
I.
EMBARRASSING
QUESTIONS
Lawyerslean heavilyon the connectedconceptsof legal rightand legal obligation.We saythatsomeonehas a legal rightor duty,and we as a sound basis formakingclaims and demands, take thatstatement But our understanding the acts of public officials. and forcriticizing and we fall into troublewhen fragile, of theseconceptsis remarkably and obligations are. We say gliblythat we tryto saywhat legal rights whethersomeone has a legal obligation is determinedby applying "the law" to the particularfactsof his case, but this is not a helpful with the conceptof law. because we have the same difficulties answer, up our troublesin the classicquestionsof We are used to summing What is "the law"? When two sides disagree,as often jurisprudence: happens, about a proposition"of law," what are they disagreeing Why do we call about, and how shall we decide which side is right? Is "obligation"here of legal "obligation"? what"the law" saysa matter just a termof art,meaningonly "what the law says"?Or does legal to do with moral obligation?Can we say obligationhave something thatwe have, in principleat least,the same reasonsformeetingour legal obligationsthat we have formeetingour moral obligations? These are not puzzlesforthe cupboard,to be takendown on rainy and they embarrassment, daysforfun.They are sourcesof continuing us in dealing with particular nag at our attention.They embarrass problemsthat we must solve, one way or another.Suppose a novel case comes to court,and thereis no statuteor preceright-of-privacy dent either grantingor denying the particularright of anonymity What role in the court'sdecision should be claimed by the plaintiff. think that played by the fact that most people in the community to that entitled are privacy? particular individuals "morally" private Suppose the Supreme Court orderssome prisonerfreedbecause the police used proceduresthat the Court now says are constitutionally although the Court's earlier decisions upheld these proforbidden, ? 1967 by the author. Copyright of Law at Yale University. Ronald Dworkin is Professor
book. This article is adapted from a chapter in a forthcoming
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free all other prisoners cedures. Must the Court, to be consistent, Conceptual procedures?' same these through convicted previously puzzlesabout "the law" and "legal obligation"become acute when a with a problemlike this. court is confronted These eruptionssignal a chronicdisease. Day in and day out we send people to jail, or take moneyaway fromthem,or make them do thingstheydo not want to do, under coercionof force,and we all of this by speakingof such personsas having broken the justify or having interlaw or havingfailed to meet theirlegal obligations, Even in clear cases (a bank robferedwithotherpeople's legal rights. ber or a willful breach of contract),when we are confidentthat someonehad a legal obligationand broke it, we are not able to give the state accountof whatthatmeans,or whythatentitles a satisfactory thatwhatwe are doing to punishor coercehim.We mayfeelconfident we are following principles the identify can we until but is proper, we are applying or whether we cannotbe sure thattheyare sufficient, In less clear cases, when the issue of whetheran them consistently. the pitch obligationhas been brokenis forsome reasoncontroversial, to findanswers questionsrises,and our responsibility of thesenagging deepens. urge thatwe solve (we maycall them"nominalists") Certainlawyers them.In theirview the conceptsof "legal by ignoring theseproblems obligation" and "the law" are myths,invented and sustained by motives.The fora dismal mix of consciousand subconscious lawyers that theyare puzzleswe findin theseconceptsare merelysymptoms withthem They are unsolvablebecauseunreal,and our concern myths. We would do betterto flush is just one featureof our enslavement. and pursueour important altogether, awaythe puzzlesand theconcepts social objectiveswithoutthis excessbaggage. but it has fatal drawbacks.Before suggestion, This is a tempting we can decide that our conceptsof law and of legal obligation are we must decide what theyare. We must be able to state,at myths, what it is we all believe that is wrong.But the nerve least roughly, in doing just that. Inof our problemis thatwe have greatdifficulty deed, when we ask what law is and what legal obligationsare, we are asking for a theoryof how we use those conceptsand of the conour use entails. We cannot conclude, before ceptual commitments are stupidor superstithatour practices we have sucha generaltheory, tious. Of course, the nominaliststhink they know how the rest of us
1 See Linkletter v. Walker, 381 U.S. 618 (1965).
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use theseconcepts. They thinkthatwhen we speak of "the law," we mean a set of timeless rules stockedin some conceptualwarehouse awaiting discovery byjudges,and thatwhenwe speakof legal obligation we mean the invisiblechains these mysterious rules somehow drape around us. The theory that thereare such rules and chains call "mechanical they jurisprudence," and theyare rightin ridiculing itspractitioners. Their difficulty, however, lies in finding practitioners to ridicule.So fartheyhave had littleluck in cagingand exhibiting mechanicaljurisprudents (all specimenscaptured-even Blackstone and JosephBeale-have had to be releasedaftercarefulreadingof theirtexts). In any event,it is clear thatmostlawyers have nothing like thisin mindwhenthey speakof the law and of legal obligation. A superficial is enoughto show this,forwe speak of examination of our practices laws changing and evolving, and of legal obligationsometimes being problematical. In these and other ways we show that we are not addictedto mechanical jurisprudence. and we do use theconcepts Nevertheless, oflaw and legal obligation, we do supposethatsociety's warrant to punishand coerce is written in thatcurrency. It maybe thatwhen the detailsof thispracticeare laid bare,the concepts we do use will be shownto be as sillyand as invented.If so, then we thickwith illusion as thosethe nominalists shall have to findotherwaysto describewhatwe do, and eitherproBut until we have vide otherjustifications or change our practices. we cannot accept the discoveredthis and made these adjustments, nominalists' to turnour backson the problems premature invitation our present concepts provide. Of coursethe suggestion thatwe stop talkingabout "the law" and "legal obligation" is mostlybluff.These conceptsare too deeply of our political practices-theycannot cementedinto the structure be givenup like cigarettes have halfor hats.Some of thenominalists admitted thisand said thatthemyths they condemn shouldbe thought of as Platonic myths and retainedto seduce the massesinto order. a suggestion This is perhapsnot so cynical as it seems;perhapsit is a covert of a dubious bet. hedging If we boil awaythe bluff, thenominalist attack reducesto an attack on mechanicaljurisprudence. Through the lines of the attack,and in spiteof the heroiccalls forthe deathof law, the nominalists themselves have offered an analysisof how the terms"law" and "legal obligation"should be used whichis not verydifferent fromthat of more classical philosophers. Nominalistspresenttheir analysisas a model of how legal institutions (particularly courts)"reallyoperate."
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made first mainlyin emphasisfromthe theory But theirmodel differs popular by the nineteenthcenturyphilosopherJohn Austin, and now acceptedin one formor anotherby mostworkingand academic lawyerswho hold views on jurisprudence.I shall call this theory, with some historicallooseness,"positivism."I want to examine the in the powerfulformthat Proparticularly soundnessof positivism, H. L. A. Hart of Oxfordhas givento it. I choose to focuson his fessor and elegance,but because here, not onlybecause of itsclarity position, thought constructive else in legal philosophy, as almost everywhere of his views. muststart witha consideration
II. POSITIVISM
Positivismhas a few central and organizingpropositionsas its who is called a positivist and thoughnot everyphilosopher skeleton, them,theydo definethe present I way the to thesein would subscribe generalpositionI want to examine.These keytenetsmaybe statedas follows: is a set of special rules used by the (a) The law of a community directlyor indirectlyfor the purpose of determining community which behavior will be punished or coerced by the public power. by specific and distinguished These special rules can be identified but with their content not with their do tests having to by criteria, pedigree or the manner in which theywere adopted or developed. valid legal rules These testsof pedigreecan be used to distinguish fromspuriouslegal rules (rules which lawyersand litigantswrongly argue are rules of law) and also fromothersortsof social rules (genfollows as "moral rules") that the community erallylumped together not enforce power. public through but does (b) The set of these valid legal rules is exhaustiveof "the law," so thatif someone'scase is not clearlycoveredby such a rule (because or those that seem appropriate thereis none that seemsappropriate, are vague,or forsome otherreason) thenthatcase cannotbe decided like a by "applyingthe law." It must be decided by some official, which means reachingbeyond the his discretion," judge, "exercising a law forsome othersortof standardto guide him in manufacturing one. old an legal rule or supplementing fresh (c) To say thatsomeonehas a "legal obligation"is to say that his case falls under a valid legal rule that requireshim to do or to foror has a legal doing something.(To sayhe has a legal right, bear from is to assert,in power of some sort,or a legal privilegeor immunity, legal obligaa shorthand way,thatothershave actual or hypothetical
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him.) In theabsence waystouching tionsto act or not to act in certain it followsthat obligation; legal no of such a valid legal rule thereis he is not his discretion, whenthejudge decidesan issue by exercising a legal obligationas to that issue. enforcing differis arranged The flesh of positivism. This is onlytheskeleton bones. the with tinker even some and positivists, entlyby different of the fundain their description chiefly versionsdiffer Different mentaltestof pedigreea rule mustmeetto countas a rule of law. test Austin,for example,framedhis versionof the fundamental defined He distinctions.2 and definitions interlocking of series a as havingan obligationas lyingundera rule, a rule as a generalcomof desirethatothersbehave mand,and a commandas an expression and will to enforcethat power the by in a particularway, backed classesof in the eventof disobedience.He distinguished expression to whichpersonor groupis rules(legal,moralor religious)according In each politithe rule represents. theauthorof thegeneralcommand one will finda sovereign-a personor a he thought, cal community, but who is not group whom the rest obey habitually, determinate a community of rules in the habit of obeyinganyoneelse. The legal has deployed.Austin'sdefiniits sovereign are the generalcommands of law. One has fromthisdefinition tion of legal obligationfollowed of some addressees the is among if one he thought, a legal obligation, a sanction and is in dangerof suffering generalorderof thesovereign, unlesshe obeysthatorder. Of course, the sovereigncannot provide for all contingencies and some of his orderswill inevitably any schemeof orders, through edges. Therefore(accordingto Austin) the be vague or have furry to make thelaw (judges)discretion thosewho enforce grants sovereign The are presented. cases or troublesome novel freshorderswhen judges then make new rules or adapt old rules, and the sovereign them by failing confirms or tacitly theircreations, eitheroverturns so. to do the first It asserts in its simplicity. model is quite beautiful Austin's thatthe law is a set of rules speciallyselectedto tenetof positivism, a simple factualtest-what has the governpublic order,and offers those sovereigncommanded?-as the sole criterionfor identifying thosewho studiedand triedto apply specialrules.In time,however, Austin's model found it too simple. Many objectionswere raised, First,Austin'skey amongwhichwere two thatseemedfundamental. a determinate group or instituthatin each community assumption
2
J. AUSTIN,
THE
PROVINCE OF JURISPRUDENCE DETERMINED
(1832).
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tion can be found,which is in ultimatecontrolof all othergroups, Politicalcontrolin a modern seemednot to hold in a complexsociety. a matterof more or less, of comnation is pluralisticand shifting, and alliance,so thatit is oftenimpossibleto promiseand cooperation to say that any person or group has that dramaticcontrolnecessary One wants to say, in the United qualifyas an Austiniansovereign. States forexample, that the "people" are sovereign.But this means what almost nothing,and in itselfprovidesno test for determining their legal from the "people" have commanded,or distinguishing theirsocial or moralcommands. Second, criticsbegan to realize that Austin's analysisfails entirely to account for, even to recognize,certain strikingfacts about the distinction attitudes we taketoward"the law." We make an important We feel that betweenlaw and even the generalordersof a gangster. in that theyare the law's strictures-andits sanctions-are different obligatoryin a way that the outlaw's commandsare not. Austin's because it definesan analysishas no place for any such distinction, obligation as subjection to the threatof force,and so founds the abilityand will to harm on the sovereign's of law entirely authority we make is illusory-perthosewho disobey.Perhaps the distinction attachingto the law is haps our feelingsof some special authority based on religious hangoveror another sort of mass self-deception. this,and we are entitledto insist But Austin does not demonstrate and explain thatan analysisof our conceptof law eitheracknowledge or showwhytheyare mistaken. our attitudes, is morecomplexthanAustin's, H. L. A. Hart'sversionof positivism as Austin did not, thatrules are of in two ways.First,he recognizes, two kinds,which he calls different logical kinds (Hart distinguishes and "secondary" rules). Second, he rejectsAustin'stheory "primary" a more elaborate that a rule is a kind of command,and substitutes generalanalysisof what rules are. We must pause over each of these points,and thennote how theymergein Hart's conceptof law. and secondary betweenprimary rules is of great Hart's distinction rules are those that grantrightsor impose obPrimary importance.8 The rules of the criminal of the community. ligationsupon members fastare good examples murder drive or too rob, us to forbid law that rules are thosethatstipulatehow, and by rules.Secondary of primary recognized,modifiedor whom, such primaryrules may be formed, The rules thatstipulatehow Congressis composed,and extinguished. rules. Rules about are examplesof secondary how it enactslegislation, rules because and executingwills are also secondary contracts forming
3 See H. L. A. HART,THE CONCEPT OF LAw 89-96 (1961).
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theystipulatehow veryparticularrules governing particularlegal obligations(i.e., the termsof a contract or the provisions of a will) and are changed. come into existence His generalanalysisof rules is also of great importance.4 Austin had said thateveryrule is a generalcommand, and thata personis obligatedundera rule if he is liable to be hurtshouldhe disobeyit. Hart pointsout that this obliterates the distinction betweenbeing obligedto do something and beingobligatedto do it. If one is bound by a rule he is obligated, not merely obliged,to do what it provides, and therefore being bound by a rule must be different frombeing subjectto an injuryif one disobeys an order.A rule differs froman order, amongotherways, by beingnormative, by setting a standard of behaviorthat has a call on its subject beyondthe threatthat may it. A rule can neverbe bindingjust becausesomepersonwith enforce physical powerwantsit to be so. He musthave authority to issue the rule or it is no rule, and such authority can onlycome fromanother rule whichis alreadybindingon thoseto whom he speaks.That is a valid law and the ordersof a gunman. between the difference of rules thatdoes not make their a generaltheory So Hart offers authority depend upon the physicalpower of theirauthors.If we rules come into being, he tells us, and examine the way different betweenprimary and secondary attend to the distinction rules, we see thatthereare twopossiblesourcesof a rule's authority.5 (a) A rule may become bindingupon a group of people because its practices thatgroupthrough acceptsthe rule as a standardforits to a pattern conforms conduct.It is not enoughthatthegroupsimply of behavior:even thoughmostEnglishmen maygo to the movieson Saturday evening, theyhave not accepteda rule requiringthat they of a rule onlywhenthose constitutes the acceptance do so. A practice and recognize the who followthe practice regardtherule as binding, fortheirown behavior and as a reason rule as a reasonor justification the behavior of others who do not obey it. forcriticizing A also become rule (b) may binding in quite a different way, withsomesecondary rule that namelyby beingenactedin conformity thatrulesso enactedshall be binding.If the constitution of stipulates for example, that by-laws a club stipulates, may be adopted by a thenparticular so votedare binding of the members, majority by-laws not because of any practiceof acceptanceof upon all the members, but because the constitution theseparticular by-laws, saysso. We use rulesbindingbecause they in thisconnection: the conceptof validity
4
Id. at 79-88. 5 Id. at 97-107.
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rule are have been createdin a mannerstipulatedby some secondary distinccalled "valid" rules. Thus we can record Hart's fundamental tion this way: a rule may be binding (a) because it is accepted or (b) because it is valid. of thesevariousdistinctions.6 Hart's conceptof law is a construction rules,and theseare binding have onlyprimary Primitive communities cannot of acceptance.Such communities entirely because of practices a set of be said to have "law," because thereis no way to distinguish tenet of posilegal rules fromamongstothersocial rules,as the first has developed a tivismrequires. But when a particularcommunity fundamental secondary rule that stipulateshow legal rules are to be set of legal rules,and thus of law, is identified, the idea of a distinct born. secondary rule a "rule of recogniHart calls such a fundamental maybe relatively of a givencommunity tion." The rule of recognition simple ("What the king enacts is law") or it may be very complex with all its difficulties of interpre(the United States Constitution, The demontation,may be considereda single rule of recognition). require tracing strationthat a particularrule is valid may therefore a complicatedchain of validityback fromthat particularrule ultirule. Thus a parkingordinanceof the city mnately to the fundamental of New Haven is valid because it is adopted by a citycouncil,pursuant to the proceduresand within the competencespecifiedby the municipal law adopted by the state of Connecticut,in conformity and withinthe competencespecified with the procedures by the conwhichwas in turnadopted conof the stateof Connecticut, stitution of the United StatesConstitution. withthe requirements sistently cannot itselfbe valid, because by Of course,a rule of recognition it is ultimate,and so cannot meet testsstipulatedby a hypothesis is the sole rule in a rule. The rule of recognition more fundamental whose binding forcedepends upon its acceptance.If we legal system has wish to know what rule of recognitiona particularcommunity and its we mustobservehow citizens, particularly adopted or follows, behave. We must observewhat ultimatearguments they its officials, rule, and what ultimate acceptas showingthe validityof a particular We can or institutions. arguments theyuse to criticizeother officials apply no mechanicaltest,but there is no danger of our confusing The withitsrules of morality. of a community therule of recognition rule of recognitionis identified by the fact that its province is the courts,agenapparatusof legislatures, operationof the governmental ries. nolicemen.and the rest.
6
Id. passim, particularlych. VI.
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of positivismfrom In this way Hart rescues the fundamentals Hart agreeswithAustinthatvalid rulesof law may mistakes. Austin's But and public institutions. be createdthroughthe acts of officials lay onlyin their oftheseinstitutions thattheauthority Austinthought of in the background of power.Hart findstheirauthority monopoly stanstandardsagainst which theyact, constitutional constitutional rule of dards thathave been accepted,in the formof a fundamental whichtheygovern.This background by the community recognition, and gives themthe cast and the decisionsof government legitimates call of obligation that the naked commandsof Austin's sovereign that fromAustin'salso, in recognizing differs lacked. Hart's theory that of law, and tests ultimate different use communities different law than the deliberateact of a some allow othermeansof creating practice"and Hart mentions"long customary institution. legislative thatare criteria other as decisions" a to "therelation[of rule] judicial to the testof along withand subordinate generally used,though often legislation. and is morecomplexthanAustin's, So Hart's versionof positivism In one respect, his testfor valid rules of law is more sophisticated. recognizes Hart,like Austin, similar. thetwomodelsare very however, edges (he speaksof themas having"open thatlegal rules have furry cases texture")and, again like Austin,he accountsfor troublesome to decide thesecases discretion thatjudges haveand exercise bysaying (I shall later tryto show why one who thinks by freshlegislation.7 drawnto account of law as a special set of rules is almostinevitably of someone'sexerciseof discretion.) fordifficult cases in terms ANDPOLICIES III. RULES,PRINCIPLES, and I shall use I want to make a general attackon positivism, is needed. target whena particular H. L. A. Hart'sversion as a target, lawyers when that fact will be organizedaround the My strategy in particularly reason or disputeabout legal rightsand obligations, thosehard cases when our problemswith theseconceptsseem most as rules,but thatdo not function acute,theymake use of standards of standards. policies,and othersorts as principles, operatedifferently of rules,and I shall argue,is a model of and fora system Positivism, test for law forcesus to its centralnotion of a single fundamental thatare not rules. roles of thesestandards missthe important policies,and othersortsof standards." I just spoke of "principles, to the to refer MostoftenI shall use the term"principle"generically,
7 Id. ch. VII.
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whole set of these standardsother than rules; occasionally, however, I shall be more precise, and distinguishbetween principles and policies.Althoughnothingin the presentargument will turnon the distinction, I should state how I draw it. I call a "policy" that kind of standardthat setsout a goal to be reached,generally an improvement in some economic,political,or social featureof the community (though some goals are negative,in that they stipulate that some present featureis to be protectedfrom adverse change). I call a "principle" a standardthat is to be observed,not because it will advance or secure an economic,political,or social situationdeemed desirable,but because it is a requirementof justice or fairnessor some otherdimension of morality. Thus the standardthatautomobile accidents are to be decreasedis a policy, and the standardthatno man may profitby his own wrong a principle. The distinctioncan be collapsed by construing a principleas statinga social goal (i.e., the goal of a societyin which no man profits by his own wrong),or by a policyas statinga principle(i.e., the principlethat the construing goal the policy embracesis a worthy one) or by adopting the utilitarianthesisthatprinciples of justiceare disguisedstatements of goals (securing the greatest happinessof the greatest number).In some contextsthe distinction has uses whichare lost if it is thuscollapsed.8 My immediate purpose,however, is to distinguish principlesin the genericsensefrom rules,and I shall startby collecting some examples of the former. are chosen haphazardly;almost The examples I offer any case in a law schoolcasebookwould provideexamplesthatwould serveas well. In 1889 a New York court,in thefamouscase of Riggsv. Palmer,9had to decide whetheran heir named in the will of his grandfather could inheritunder that will, even thoughhe had murdered his grandfather to do so. The court began its reasoningwith this admission:"It is quite true that statutes regulatingthe making, if literally of wills, and the devolutionof property, proofand effect and if theirforceand effect can in no way and under no construed, be controlledor modified,give this propertyto the circumstances But the court continued to note that "all laws as well murderer."''0 as all contracts may be controlledin their operation and effect by maximsof the common law. No one shall be general,fundamental permittedto profitby his own fraud,or to take advantage of his own wrong,or to found any claim upon his own iniquity,or to ac8 See Dworkin, Wasserstrom:The Judicial Decision, 75 E-mICs 47 (1964), reprinted as Does Law Have a Function?, 74 YALE L.J. 640 (1965). 9 115 N.Y. 506, 22 N.E. 188 (1889). 10 Id. at 509, 22 N.E. at 189.
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did not receivehis The murderer by his own crime."1l quire property inheritance. courtwas faced,in Henningsenv. BloomIn 1960,a New Jersey (or how questionof whether fieldMotors,Inc.,12with the important in case the maylimithis liability much)an automobilemanufacturer signed and a car, bought had Henningsen automobileis defective. was liabilityfordefects whichsaid thatthe manufacturer's a contract being exparts-"this warranty limitedto "makinggood" defective or liabilities."Henobligations in lieu of all otherwarranties, pressly ofhis case,themanuat leastin thecircumstances arguedthat, ningsen and oughtto be by thislimitation, oughtnot to be protected facturer injuredin a crash. of persons liable forthemedicaland otherexpenses rule of or to any established He was not able to point to any statute, on the contract. fromstanding the manufacturer law, thatprevented At variouspointsin agreedwithHenningsen. The courtnevertheless are made: (a) appeals to standards the following thecourt'sargument absenceof the in that, principle mind the general in "[W]e mustkeep beforesigningit fraud,one who does not choose to read a contract (b) "In applyingthat of its burdens."13 cannotlater relievehimself partiesto contract of competent of freedom tenet basic the principle, is not such an "14 (c) "Freedomof contract of importance. is a factor in the area in immutabledoctrineas to admit of no qualification wherethe as such ours, a society "15 (d) "In whichwe are concerned. adjunctof dailylife,and where and necessary is a common automobile and the with danger to the driver,passengers its use is so fraught connection in a obligation special is under public, the manufacturer the and sale ofhiscars.Consequently, promotion withtheconstruction, closelyto see if consumer courtsmustexaminepurchaseagreements " '[I]s thereany principle (e) fairly."'16 are treated and public interests of embeddedin the history which is more familiaror more firmly thatthe courtswill not law than the basic doctrine Anglo-American of inequity and into be used as instruments permit themselves refuseto lend the courtsgenerally justice?'"'7 (f) "'More specifically, has of a "bargain"in whichone party to the enforcement themselves "18 of other.. necessities of theeconomic takenadvantage unjustly
Id. at 511, 22 N.E. at 190. 32 N.J. 358, 161 A.2d 69 (1960). 13 Id. at 386, 161 A.2d at 84. 14 Id. 15 Id. at 388, 161 A.2d at 86. 16 Id. at 387, 161 A.2d at 85. J., in United States v. Bethlehem 17 Id. at 389, 161 A.2d at 86 (quoting Frankfurter, Steel, 315 U.S. 289, 326 (1942)). 18 Id.
11 12
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setout in thesequotationsare not thesortwe thinkof The standards like "The frompropositions as legal rules. They seem verydifferent maximumlegal speed on the turnpikeis sixtymiles an hour" or "A beThey are different will is invalidunlesssignedby threewitnesses." ratherthan legal rules. cause theyare legal principles betweenlegal principlesand legal rules is a logical The difference point to particulardecisionsabout Both setsof standards distinction. but they differin the legal obligation in particularcircumstances, of the directiontheygive. Rules are applicable in an all-orcharacter are given,theneitherthe a rule stipulates If thefacts fashion. nothing rule is valid,in whichcase the answerit suppliesmustbe accepted,or nothingto thedecision. it is not,in whichcase it contributes This all-or-nothing is seen mostplainlyif we look at the way rules theydominate-a game,for not in law, but in someenterprise operate, example. In baseball a rule providesthat if the batterhas had three thatthis acknowledge cannotconsistently strikes, he is out. An official who ofa baseballrule,and decide thata batter is an accuratestatement has had threestrikes is not out. Of course,a rule mayhave exceptions is not out if the catcherdrops (the batterwho has takenthreestrikes of the rule would the thirdstrike).However,an accuratestatement take this exceptioninto account,and any that did not would be into large,it would be too clumsy If thelistofexceptions is very complete. no reasonin repeatthemeach timetherule is cited; thereis, however, whytheycould not all be added on, and the more thatare, the theory of the rule. moreaccurateis the statement If we take baseball rules as a model, we findthatrules of law, like fitthe the rule thata will is invalid unless signedby threewitnesses, of threewitnesses is a valid legal rule, well. If the requirement rm-odel then it cannot be that a will has been signed by only two witnesses but if it does then it is and is valid. The rule mighthave exceptions, withoutenumerto statetherule so simply, and incomplete inaccurate could all be at the In exceptions least, theory, the exceptions. ating listed,and the moreof themthatare, the more completeis the statementof the rule. But this is not the way the sample principlesin the quotations operate. Even those which look most like rules do not set out legal when the conditionsprovided consequencesthat followautomatically the principlethatno man may are met.We say thatour law respects but we do not mean thatthelaw neverperhis own wrong, from profit fromwrongshe commits.In fact,people often mits a man to profit legally,fromtheirlegal wrongs.The most notorious perfectly profit, case is adverse possession-if I trespasson your land long enough, I please. There to crossyourland whenever someday I will gain a right
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a examples.If a man leavesone job, breaking are manylessdramatic to take a much higherpayingjob, he may have to pay contract, to keep his new but he is usuallyentitled employer, damagesto his first statelines to make a brilliant If a man jumps bail and crosses salary. in anotherstate,he maybe sent back to jail, but he will investment keep his profits. that othercounter-instances We do not treatthese-and countless about profiting thatthe principle can easilybe imagined-as showing or thatit is is not a principleof our legal system, one's wrongs from We do not treatcounterexceptions. and needsqualifying incomplete in the way in whicha (at least not exceptions as exceptions instances because we could an exception) is strike droppingthe third catcher's bya moreextended simply nothope to capturethesecounter-instances subject to of the principle.They are not, even in theory, statement these cases only not include to have would because we enumeration, provided has already in whichsomeinstitution possession) (likeadverse a wrong, but also thosenumberless can be gained through thatprofit would casesin whichwe knowin advancethattheprinciple imaginary sharpenour senseof the princinot hold. Listingsomeof thesemight but it would in a moment), that dimension (I shallmention ple'sweight the of statement principle. or accurate complete for a more not make from his own wrong"does not like "No man mayprofit A principle necessary. thatmake its application to setout conditions evenpurport does not but in one direction, a reason that argues Rather,it states decision.If a man has or is about to receive a particular necessitate illegalhe did to get it, then as a directresultof something something, into account in deciding take will the law a that is reason which or policies he should keep it. There may be otherprinciples whether forexample, title, in theotherdirection-a policyof securing arguing has stiputo what the legislature punishment or a principlelimiting but thatdoes notmean that maynot prevail, lated.If so, our principle becausein thenextcase,when of our legal system, it is not a principle theprinciare absentor lessweighty, considerations thesecontravening a we that when is All that particular say meant, ple maybe decisive. of our law, is thatthe principleis one which principleis a principle inas a consideration musttake into account,if it is relevant, officials or another. cliningin one direction appearsmore betweenrules and principles The logical distinction thatdo not even look like rules. clearlywhenwe considerprinciples the from set out under"(d)" in the excerpts Considertheproposition, is under a special obliHenningsenopinion,that"the manufacturer and sale of promotion gation in connectionwith the construction,
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duties such his cars."This does not even purportto definethe specific a special obligationentails,or to tell us what rightsautomobileconsumersacquire as a result. It merelystates-and this is an essential link in the Henningsen argument-that automobile manufacturers and are mustbe held to higherstandardsthan othermanufacturers, of contract. principleof freedom less entitledto relyon the competing It does not mean that theymay neverrely on that principle,or that at will; it means courts may rewriteautomobile purchasecontracts courts burdensome, or unfair only that if a particularclause seems the clause than if it were for the purchase have less reasonto enforce but does not in The "special obligation"countsin favor, of neckties. of an autoterms the enforce to a decisionrefusing itselfnecessitate, mobile purchasecontract. between rules and principlesentails another. difference This first Principles have a dimension that rules do not-the dimension of (the policy of proWhen principlesintersect weightor importance. with principlesof freedom intersecting automobileconsumers tecting has to take forexample),one who mustresolvethe conflict of contract, into account the relativeweightof each. This cannot be, of course, and the judgmentthat a particularprinciple an exact measurement, than anotherwill oftenbe a controversial or policyis moreimportant it is an integralpart of the conceptof a principle one. Nevertheless, that it has thisdimension,that it makes sense to ask how important it is. or how weighty Rules do not have thisdimension.We can speak of rules as being (the baseball rule that three or unimportant important functionally strikesare out is more importantthan the rule that runnersmay advance on a balk, because the game would be much more changed rule altered than the second). In this sense, one legal with the first than anotherbecause it has a greateror rule may be more important behavior.But we cannot say that role in regulating more important of rules, another withinthe system than more is important one rule one supercedesthe other by virtueof so thatwhen two rules conflict one of themcannotbe a valid itsgreater weight.If two rules conflict, rule. The decisionas to whichis valid, and whichmustbe abandoned beyond the or recast,must be made by appealing to considerations by other A legal system mightregulatesuch conflicts rules themselves. or the authority, the higher the rule enacted by which prefer rules, of thatsort. rule, or something rule enactedlater,or the morespecific A legal system may also preferthe rule supportedby the more importantprinciples.(Our own legal systemuses both of these techniques.)
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it is a whether It is not alwaysclear fromthe formof a standard "A will is invalidunlesssignedby threewitnesses" ruleor a principle. his own from from "A man maynotprofit in form different is notvery law knowsthat of American but one who knowssomething wrong," as statinga rule and the second as statinga he must take the first to make-it may is difficult principle.In manycases the distinction and thisissue shouldoperate, how the standard not have been settled The firstamendmentto the may itselfbe a focus of controversy. shall thatCongress containsthe provision United StatesConstitution law ofspeech.Is thisa rule,so thatif a particular notabridgefreedom of speech,it followsthatit is unconstitutional? does abridgefreedom is "an absolute"saythatit amendment Those who claim thatthe first state mustbe takenin thisway,thatis, as a rule. Or does it merely it of speech is discovered, so thatwhen an abridgement a principle, some otherpolicy or unless the contextpresents is unconstitutional is weighty whichin the circumstances enoughto permitthe principle That is the positionof those who argue for what is abridgement? called the "clear and presentdanger" test or some other formof "balancing." a rule and a principlecan play much the same role, Sometimes betweenthem is almosta matterof formalone. and the difference in reAct statesthateverycontract sectionof the Sherman The first of tradeshall be void. The SupremeCourt had to make the straint shouldbe treated as a rule in its own thisprovision decisionwhether trade," which down everycontract"which restrains terms(striking does) or as a principle,providinga reason for almostany contract in the absenceof effective down a contract contrary policies. striking as a rule, but treated thatrule as the provision The Court construed and as prohibiting the word "unreasonable," only "unreacontaining the to function allowed of This restraints trade.19 provision sonable" a courtfinds is "unreathattherestraint as a rule (whenever logically as a invalid)and substantially sonable"it is bound to hold thecontract of otherprinciples (a courtmusttake intoaccounta variety principle in particular a particular whether restraint and policiesin determining is "unreasonable"). economiccircumstances "unjust," and "significant" Words like "reasonable,""negligent," Each of theseterms makesthe applioften perform just thisfunction. cation of the rule which containsit depend to some extent upon or policies lyingbeyondthe rule, and in this way makes principles But theydo not quite turnthe morelike a principle. thatrule itself
19 Standard Oil v. United States, 221 U.S. 1, 60 (1911); United States v. American Tobacco Co., 221 US. 106, 180 (1911).
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of these terms rule into a principle,because even the least confining the kind of other principlesand policies on which the rule restricts depends.If we are bound by a rule thatsaysthat"unreasonable"conwill not be enforced, "unfair"contracts are void, or thatgrossly tracts much more judgment is required than if the quoted termswere of policyor omitted.But supposea case in whichsome consideration even thoughits should be enforced thata contract principlesuggests unfair. Enis not reasonable,or even though it is grossly restraint would be forbiddenby our rules, and thus forcingthese contracts If we were only if theseruleswere abandoned or modified. permitted enforcing against policy a with but a rule with not however, dealing, oughtnot or a principlethatunfaircontracts unreasonablecontracts, withoutalterationof could be enforced the contracts to be enforced, the law.
IV. PRINCIPLES AND THE CONCEPT OF LAW
difas separatesortsof standards, legal principles Once we identify aware of themall around us. fromlegal rules,we are suddenly ferent Law teachersteach them,lawbooks cite them,legal historianscelemost at work,carrying brate them.But theyseem most energetically lawsuitslike Riggs and Henningsen.In cases like weight,in difficult judgsupporting play an essentialpart in arguments these,principles is case the After and obligations. mentsabout particularlegal rights rule (e.g., the decided,we maysay thatthe case standsfora particular rule that one who murdersis not eligible to take under the will of his victim).But the rule does not exist beforethe case is decided; the for adoptingand applyinga court cites principlesas its justification new rule. In Riggs, the court cited the principle that no man may standardagainstwhich to fromhis own wrongas a background profit a new interpretation of wills and in thiswayjustified read the statute of intersecting the courtcited a variety In Henningsen, of thatstatute. manurule respecting for a new principlesand policies as authority liabilityforautomobiledefects. facturer's account of the conceptof legal obligationmusttherefore An analysis role of principlesin reachingparticulardecisions for the important tackswe mighttake. of law. There are two verydifferent (a) We might treat legal principlesthe way we treat legal rules and say that some principlesare binding as law and must be taken who make decisionsof legal obliinto account by judges and lawyers gation. If we took this tack,we should say that in the United States, as well as rules. at least,the "law" includesprinciples can be bindon the otherhand, denythatprinciples (b) We might,
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thatin cases like ing the way some rulesare. We would say,instead, rules that hieis the beyond reaches judge the Henningsen or Riggs bound to apply (reaches,that is, beyond the "law") for extra-legal he is freeto followif he wishes. principles betweenthese One mightthinkthatthereis not much difference one wants how of question a verbal only it is that of attack, lines two because the choice beto use the word "law." But thatis a mistake, foran analysis consequences has thegreatest tweenthesetwoaccounts of a legal concepts two between choice is a It of legal obligation. it to a choicewe might bycomparing a choicewe can clarify principle, say of make betweentwo conceptsof a legal rule. We sometimes mean we when someonethathe "makesit a rule" to do something, that he has chosen to followa certainpractice.We mightsay that someonehas made it a rule,forexample,to run a mile beforebreakWe do and believesin a regimen. fastbecausehe wantsto be healthy notmean,whenwe saythis,thathe is bound by therule thathe must or even that he regardsit as binding run a mile beforebreakfast, from different upon him. Acceptinga rule as bindingis something If we use Hart's example again, makingit a rule to do something. make it a rule betweensayingthat Englishmen thereis a difference the that Englishhave a rule to see a movie once a week,and saying thatone mustsee a movieonce a week.The secondimpliesthatif an or cendoes not followthe rule,he is subjectto criticism Englishman does not exclude the possibility does not. The first sure,but the first of a sortof criticism-wecay say thatone who does not see movies that he is doing his education-but we do not suggest is neglecting therule.20 just in not following wrong something as a group,we could If we thinkof the judges of a community ways.We describethe rules of law theyfollowin thesetwo different that in a certainstatethe judges make it a could say,for instance, This would willsunlessthereare threewitnesses. rule not to enforce such a rule is doing anynot implythatthe rarejudge who enforces just forthatreason.On the otherhand we can say that thingwrong such wills; in thatstatea rule of law requiresjudges not to enforce themis doing something this does implythata judge who enforces on this wouldinsist ofcourse, and other positivists, Hart,Austin wrong. withthe would not at all be satisfied accountof legal rules;they latter "make it a rule" account.It is not a verbalquestionof whichaccount more the social situation is right.It is a questionof whichdescribes
20 The distinctionis in substance the same as that made by Rawls, Two Concepts of Rules, 64 PHILOSOPHICAL REv. 3 (1955).
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we acissues turn on which description Other important accurately. certaincontracts, cept. If judges simply"make it a rule" not to enforce forexample,then we cannot say,beforethe decision,that anyone is cannot enter into any "entitled"to thatresult,and that proposition for the decision. we mightoffer justification parallel thesetwo accountsof The two lines of attackon principles tack treatsprinciplesas bindingupon judges, so that rules. The first theyare wrongnot to apply the principleswhen theyare pertinent. of what most judges The second tack treatsprinciplesas summaries "make it a principle"to do when forcedto go beyond the standards that bind them. The choice between these approaches will affect, perhaps even determine,the answer we can give to the question thejudge in a hard case like Riggs or Henningsenis attemptwhether If we take the and obligations. legal rights pre-existing ing to enforce first tack,we are stillfreeto argue thatbecause such judges are applylegal rightsand obligatheyare enforcing ing bindinglegal standards tions.But ifwe take the second,we are out of courton thatissue,and familyin Riggs and the we must acknowledgethat the murderer's by an in Henningsenwere deprivedof theirproperty manufacturer applied ex post facto.This may not shock act of judicial discretion through has percolated manyreaders-the notionof judicial discretion the legal community-but it does illustrateone of the most nettlesome of the puzzles that drive philosophersto worryabout legal away in cases like thesecannotbe justiobligation.If takingproperty fied by appealing to an establishedobligation,another justification has yet been supplied. must be found,and nothingsatisfactory set out, I listed previously In my skeletondiagramof positivism, as the second tenet.Positivists hold the doctrineof judicial discretion thatwhen a case is not coveredby a clear rule, a judge mustexercise to decide thatcase by what amountsto a freshpiece of his discretion legislation. There may be an importantconnection between this doctrineand the question of which of the two approachesto legal want to ask whetherthe we musttake. We shall therefore principles and whetherit impliesthe second approach,as it doctrineis correct, we shall seems on its face to do. En route to these issues,however, I shall of discretion. of the concept have to polish our understanding about thatconcept,and in particutryto showhow certainconfusions senses in which it is used, lar a failure to discriminatedifferent I shall argue of the doctrineof discretion. accountforthe popularity that in the sense in which the doctrinedoes have a bearing on our it is entirely of principles, unsupportedby the arguments treatment use to defendit. the positivists
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ordinary from by the positivists was lifted The conceptofdiscretion it we mustput it back in habitatfor a language,and to understand life, to say that someone moment.What does it mean, in ordinary is thingto notice that the conceptis out The first "has discretion"? For example,you would not of place in all but veryspecialcontexts. to choose a house for say thatI eitherdo or do not have discretion in makingthat It is not true thatI have "no discretion" myfamily. to say thatI do choice,and yetit would be almostequallymisleading is at homein onlyone sortof ofdiscretion The concept havediscretion. subdecisions withmaking is in general charged whensomeone context: It makessenseto speakof authority. setbya particular ject to standards or the of superiors, who is subjectto orders ofa sergeant thediscretion judge who is governedby a or contest of a sportsofficial discretion like the hole in a Discretion, of the contest. rule book or the terms as by a surrounding area left open does not existexcept an doughnut, a relativeconcept.It alwaysmakes It is therefore belt of restriction. or "Discretionas sense to ask, "Discretionunder which standards?" Generallythe contextwill make the answerto to whichauthority?" one from mayhave discretion thisplain,but in somecases the official not fromanother. though standpoint is affected theprecisemeaningof "discretion" all terms, Like almost the backis colored The term by always of the context. by features information againstwhichit is used. Although groundof understood the shadingsare many,it will be helpfulfor us to recognizesome
grossdistinctions.
in a weak sense,simplyto say that we use "discretion" Sometimes mustapplycannotbe applied an official forsomereasonthestandards We use thisweaksense but demandtheuse ofjudgment. mechanically that make clear,when the backdoes not already when the context groundour audienceassumesdoes not containthatpiece of informalefthim a greatdeal orders tion.Thus we mightsay,"The sergeant's orders to thosewho do not knowwhat the sergeant's of discretion," vague orders those made that were or who do not know something sense to add, by way of or hard to carryout. It would make perfect that the lieutenanthad orderedthe sergeantto take amplification, men on patrolbut thatit was hard to determostexperienced his five minewhichwerethe mostexperienced. weak sense,to say only we use the termin a different Sometimes to make a decision and cannot has finalauthority thatsome official We speak this way be reviewedand reversedby any other official.
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when the official is part of a hierarchy of officials structured so that are some have higherauthority but in whichthe patterns of authority different fordifferent classes of decision.Thus we mightsay that in baseball certaindecisions,like the decision whetherthe ball or the runner reached second base first, are left to the discretionof the second base umpire,if we mean that on this issue the head umpire has no powerto substitute his own judgmentifhe disagrees. I call both of thesesensesweak to distinguish themfroma stronger sense.We use "discretion" sometimes not merely to say thatan official mustuse judgmentin applyingthe standards set him by authority, or thatno one will reviewthatexerciseof judgment,but to say that on some issue he is simplynot bound by standards set by the authority in question. In this sense we say that a sergeanthas discretionwho has been told to pick any fivemen for patrol he chooses or that a judge in a dog showhas discretion to judge airedalesbeforeboxersif the rules do not stipulatean order of events.We use this sense not on the vagueness to comment or difficulty of the standards, or on who has the finalword in applyingthem,but on theirrange and the deis told to take the five cisionstheypurportto control.If the sergeant most experiencedmen, he does not have discretionin this strong sense because thatorderpurports to governhis decision.The boxing has been the more aggressive who must decide which fighter referee in thestrong does not have discretion, sense,forthe samereason.2' If anyone said that the sergeantor the refereehad discretionin thesecases,we should have to understand him, if the contextpermitted,as usingthe termin one of the weak senses.Suppose,forexample, to selectthe fivemen he deemed the lieutenantorderedthe sergeant and then added thatthe sergeant had discretion mostexperienced, to should award the choose them.Or the rules providedthatthe referee withdiscretion in selecting him. round to the moreaggressive fighter, these statements in the second weak We should have to understand sense,as speakingto the question of reviewof the decision.The first weak sense-that the decisionstake judgment-would be otiose,and sense is excluded by the statements themselves. the third,strong confusion.The strongsense of disWe must avoid one tempting to license,and does not exclude criticism. cretionis not tantamount Almostanysituationin whicha personacts (includingthosein which
21 I have not spoken of that jurisprudential favorite,"limited" discretion,because that of discretion.Suppose if we rememberthe relativity concept presentsno special difficulties the sergeant is told to choose from "amongst" experienced men, or to "take experience into account." We might say either that he has (limited) discretion in picking his patrol, or (full) discretion to either pick amongst experienced men or decide what else to take into account.
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and so no thereis no question of decision under special authority, of rationality, standards certain makesrelevant questionof discretion) each other'sacts in termsof We criticize and effectiveness. fairness, and thereis no reasonnot to do so when the actsare thesestandards, of the doughnut withinthe centerratherthanbeyondthe perimeter who was given So we can say that the sergeant of special authority. (in the strongsense) to pick a patrol did so stupidlyor discretion in the or thatthe judge who had discretion or carelessly, maliciously order of viewingdogs made a mistakebecause he took boxersfirst althoughtherewere only threeairedalesand manymore boxers.An means not that he is free to decide withoutrediscretion official's but onlythathis decisionis of senseand fairness, courseto standards we authority by the particular furnished by a standard not controlled this Of course of discretion. raise the question we when mind in have that is whywe have the strong is important; lattersortof freedom in this thirdsense Someone who has discretion sense of discretion. in the case of the as for disobedient, but not being can be criticized, but not to have desoldier.He can be said to have made a mistake, as in the of a decisionto whichhe was entitled, priveda participant or contest judge. case of a sportsofficial in hand, to the posiWe maynow retum,withtheseobservations That doctrineargues that if tivists'doctrineof judicial discretion. rule, the judge mustdecide by an established a case is not controlled and to We want to examinethisdoctrine discretion. it by exercising we mustask but first of principles; testits bearingon our treatment it. we are to understand in whichsenseof discretion even argue that judges alwayshave discretion, Some nominalists the whena clear rule is in point,becausejudges are ultimately final uses the secondweak of discretion of the law. This doctrine arbiters authority becauseit makesthepointthatno higher senseof thatterm, has no bearing court.It therefore reviews thedecisionsof the highest any morethanit bears on the issueof how we accountforprinciples, on how we accountforrules. do not mean theirdoctrinethis way,because they The positivists whena clear and established rule is say thata judge has no discretion for the doctrine arguments available. If we attendto the positivists' in the first weak sense to we may suspectthat theyuse discretion in applying judgment exercise mean onlythatjudgesmustsometimes to the factthatsome call attention Their arguments legal standards. Hart,forexample,saysthatall rules rulesof law are vague (Professor thatsomecasesarise (like Henningand have law of "open texture"), rule seemsto be suitable.They emphasize sen) in whichno established
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thatjudges must sometimes agonize over pointsof law, and that two judges will oftendisagree. equally trainedand intelligent These points are easily made; they are commonplaceto anyone with who has any familiarity with law. Indeed, that is the difficulty in thisweak sense. assumingthatpositivists mean to use "discretion" in the The proposition thatwhen no clear rule is available discretion sense of judgmentmust be used is a tautology.It has no bearing, moreover, on the problemof how to account for legal principles.It is perfectly consistent to say thatthe judge in Riggs,forexample,had to use judgment, and thathe was bound to followthe principlethat speak as if no man may profit fromhis own wrong.The positivists theirdoctrineof judicial discretion is an insight ratherthan a tautolof principles. ogy,and as if it does have a bearingon the treatment the judge's discretion is in play,we Hart, forexample,saysthatwhen but must speak can no longerspeak of his being bound by standards, uses."22Hart thinks rather of what standardshe "characteristically the principlesthey cite must be that when judges have discretion, treatedon our secondapproach,as what courts"make it a principle" to do. at least sometimes, take their It therefore seems that positivists, In thatsense it does doctrinein the third,strong sense of discretion. bear on the treatment of principles;indeed,in thatsense it is nothing less than a restatement of our second approach.It is the same thing in the to say thatwhen a judge runs out of rules he has discretion, of sense that he is not bound by any standardsfromthe authority judges cite otherthan rules are law, as to say thatthe legal standards not binding on them. in the strong So we mustexaminethe doctrine of judicial discretion use the term "discretion"in that sense.) sense. (I shall henceforth Do the principles judges cite in caseslike Riggsor Henningsencontrol ordersto take the most experienced theirdecisions,as the sergeant's control men or the referee's fighter dutyto choose the moreaggressive What argumentscould a positivist the decisions of these officials? supplyto show thattheydo not? (1) A positivist mightargue that principlescannot be binding or That would be a mistake.It is alwaysa question,of course, obligatory. whetherany particularprincipleis in fact binding upon some legal But there is nothingin the logical characterof a principle official. thatrendersit incapable of binding him. Suppose that the judge in Henningsenhad failedto take any accountof the principlethatautohave a special obligation to their consumers, mobile manufacturers
22 H.L.A. HART,
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thosewhosebargaining seekto protect thatthecourts or theprinciple by citing decided forthe defendant positionis weak,but had simply would withoutmore.His critics of contract the principleof freedom of account had not taken out that he to point not have been content to forsome time. thatotherjudgeshave been attending considerations Mostwouldhave said thatit was hisdutyto takcthemeasureof these was entitledto have him do so. We and thatthe plaintiff principles mean no more,whenwe saythata rule is bindingupon a judge, than thathe mustfollov it if it applies,and thatif he does not he will on thataccounthave made a mistake. It will not do to saythatin a case like Henningsen thecourtis only or that into account, principles obligatedto takeparticular "morally" it is "institutionally" obligated,or obligatedas a matterof judicial or something of thatsort.The questionwill stillremainwhy "craft," fromthe obliwe call it) is different thistypeof obligation(whatever gation thatrules imposeupon judges,and why it entitlesus to say and policies are not part of the law but are merely that principles use." standards "courtscharacteristically extra-legal are mightargue thateven thoughsome principles (2) A positivist in thesensethatthejudge musttaketheminto account,they binding, result.This is a harderargumentto a particular cannot determine assessbecause it is not clear what it means fora standardto "deterdictates the result mine" a result.Perhapsit meansthatthe standard it applies so thatnothingelse counts.If so, then it is cerwhenever but that do notdetermine truethatindividual results, principles tainly rules are not rules. of that another Only is only principles way saying hasbeenreached, result comewhatmay.Whena contrary dictate results, do not workthat therule has been abandonedor changed.Principles and they notconclusively, inclinea decisionone way,though way;they do not prevail.This seemsno reasonforconsurvive intactwhenthey reckon withprinciples havediscretion bejudgeswhomust cludingthat a result. can dictate If a judge believesthatprincausea setofprinciples and thatprinciples pointin one direction cipleshe is boundtorecognize thenhe in theotherdirection, ifany,are notofequal weight, pointing mustdecideaccordingly, whathe believesto be a just as he mustfollow oftheprincibe wrong in hisassessment ofcourse, rule.He may, binding thattherule is binding. in hisjudgment ples,buthe mayalso be wrong we mightadd, are oftenin the same and the referee, The sergeant dictates whichsoldiersare the mostexperienced boat. No one factor mustmake judgor whichfighter the moreaggressive. These officials theydo not on mentsof the relativeweights of thesevariousfactors; thataccounthave discretion.
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mightargue that principlescannot count as law (3) A positivist and even more so theirweight,are congenbecause theirauthority, It is true that generallywe cannot demonstrate itally controversial. principleas we can sometimes or weightof a particular the authority thevalidityof a rule by locatingit in an act of Congress demonstrate court. Instead,we make a case or in the opinion of an authoritative for a principle,and for its weight,by appealing to an amalgam of of legislative practiceand otherprinciplesin which the implications practices along with appeals to community figure and judicial history soundthe There is no litmuspaper for testing and understandings. ness of such a case-it is a matterof judgment,and reasonablemen may disagree. But again this does not distinguishthe judge from has no litmus The sergeant who do not have discretion. otherofficials Neither of paper forexperience,the refereenone for aggressiveness. understanding, an reach to because he is bound thesehas discretion, or not, of what his orders or the rules require, and controversial That is the judge's dutyas well. to act on thatunderstanding. are rightin anotherof theirdoctrinesOf course,if the positivists thereis an ultimatetestforbindthatin each legal system the theory ing law like ProfessorHart's rule of recognition-it follows that of principles are not binding law. But the incompatibility principles theorycan hardlybe taken as an argumentthat with the positivists' way.That begs the question; any particular mustbe treated principles because we want to evaluin the statusof principles we are interested of a cannotdefendhis theory model. The positivist ate the positivists' test to a are not amenable if principles fiat; by rule of recognition he mustshow some otherreasonwhytheycannotcount as law. Since about legal obligation principlesseem to play a role in arguments thatprovidesforthat a model and Henningsen), again,Riggs (witness, role has some initial advantage over one that excludes it, and the be inveighedin its own support. lattercannotproperly a positivist mightuse of the arguments most obvious These are the in the strongsense,and for the second forthe doctrineof discretion approach to principles.I shall mentionone strongcounter-argument approach.Unless at least and in favorof the first againstthatdoctrine some principlesare acknowledgedto be binding upon judges, requiring themas a set to reach particulardecisions,then no rules,or veryfewrules,can be said to be bindingupon themeither. and now in England also, the In most American jurisdictions, reject establishedrules. Common law highercourtsnot infrequently overrules-those developedby earliercourtdecisions-are sometimes further developaltered and sometimes by radically ruled directly,
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and reinterpretarulesare subjectedto interpretation ment.Statutory out whatis called evenwhentheresultis not to carry tion,sometimes to changeestablished had discretion If courts intent."23 the "legislative and rules,thentheseruleswould ofcoursenot be bindingupon them, must The positivist model. so would not be law on the positivists' binding upon themselves argue that there are standards, therefore when a judge mayoverruleor alteran estabjudges,thatdetermine lishedrule,and whenhe maynot. to change an existingrule of When, then,is a judge permitted in the answerin twoways.First,it is necessary, figure law?Principles that the judge findthat the changewould adthoughnot sufficient, whichpolicyor principle vance some policyor servesome principle, of thechange.In Riggsthechange(a new interpretation thusjustifies by the principlethatno man should of wills)was justified the statute fromhis own wrong;in Henningsencertainrules about autoprofit werealteredon the basis of the princiliability mobilemanufacturer's theopinionof thecourt. ples and policiesI quoted from a change,or no rule would will do to justify But not any principle that thatcountand others everbe safe.There mustbe someprinciples thatcount formorethan do not,and theremustbe some principles a amongst It could not dependon thejudge's own preferences others. eligible, one in principle any standards, extra-legal sea of respectable because if that were the case we could not say that any rules were amongst We could alwaysimaginea judge whosepreferences binding. a or radical reshift as such would justify were standards extra-legal rule. of even the mostentrenched interpretation doctrinemust Second,any judge who proposesto change existing that against destandards argue some of important take account are also for and these standards doctrine, fromestablished partures suof "legislative They includethe doctrine themostpartprinciples. to the courts that and require a set of policies principles premacy," inThey also to the acts of the legislature. pay a qualifieddeference and policies set of principles another of precedent, clude the doctrine of The doctrines of consistency. the equitiesand efficiencies reflecting the status toward incline and quo, precedent legislativesupremacy each withinits sphere,but theydo not commandit. Judgesare not and policies the principles to pick and chooseamongst however, free, thatmake up thesedoctrines-iftheywere,again, no rule could be said to be binding. whatsomeoneimplieswho saysthata particutherefore, Consider,
23 See Wellington & Albert, Statutory Interpretationand the Political Process: A Comment on Sinclair v. Atkinson,72 YAzU L.J. 1547 (1963).
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suplar rule is binding. He may implythat the rule is affirmatively and whichare the court is not freeto disregard, portedby principles collectivelymore weightythan other principles that argue for a change. If not, he implies that any change would be condemnedby and supremacy principlesof legislative of conservative a combination precedentthat the court is not free to ignore. Very often,he will being principlesand not principles, implyboth,forthe conservative enough to save a commonlaw rule or rules,are usuallynot powerful principles by substantive unsupported an agingstatutethatis entirely of course, these implications, of the court is bound to respect.Either treatsa body of principlesand policies as law in the sense thatrules of a comare; it treatsthemas standardsbinding upon the officials obligation. and theirdecisionsof legal right controlling munity, of judicial distheory We are leftwiththisissue. If the positivists' cretionis eithertrivialbecause it uses "discretion"in a weak sense, we can supply in its or unsupported because the various arguments lawyers why have so many carefuland intelligent defensefall short, of that embraced it? We can have no confidencein our treatment unlesswe can deal withthatquestion.It is not enough to note theory to the explanation)that "discretion" (althoughperhapsit contributes has different sensesthat may be confused.We do not confusethese about law. senseswhenwe are not thinking natural tendency at least,lies in a lawyer's Part of the explanation, to associatelaws and rules,and to thinkof "the law" as a collection long of rules. Roscoe Pound, who diagnosed this tendency or system into it by the were tricked thatEnglishspeakinglawyers ago, thought factthatEnglishuses the same word,changingonly the article,for"a use two law" and "the law."24 (Other languages,on the contrary, for example, and "Gesetz" and "Recht.") words: "loi" and "droit,"' with the English speakingpositivists, This may have had its effect, rule. But the "a law" certainly does suggest-a because the expression law with rules runs deeper, and lies, principalreason forassociating I think, in the factthatlegal educationhas fora long time consisted rules that formthe cutof teachingand examiningthose established ting edge of law. of rules,and yet In any event,if a lawyerthinksof law as a system as he must, that judges change'old rules and introduce recognizes, of judicial discretion new ones, he will come naturallyto the theory of rules with which he has sense.In thoseothersystems in the strong that experience(like games),the rules are the only special authority
24 R. POUND, AN INTRODUCTIONTO THE PHILOSOPHY OF LAw 56 (rev. ed. 1954).
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so thatif an umpirecould changea rule,he decisions, governofficial of thatrule.Anyprincias to thesubjectmatter would havediscretion theruleswould represent whenchanging mention might ples umpires treatlaw like basePositivists preferences. only their"characteristic" ball revisedin thisway. more subtle consequenceof this initial assumpThere is another, do attendto of rules. When the positivists tion thatlaw is a system assume They manque. rules them as treat and policies,they principles are standards of law theymustbe rules,and so theyread thatif they hears to be rules.When a positivist thatare trying themas standards underlaw, he of the part someoneargue that legal principlesare standsthis to be an argumentfor what he calls the "higherlaw" He are therulesof a law above the law.25 thattheseprinciples theory, by pointingout thatthese "rules" are sometimes this theory refutes and sometimes not, thatforevery"rule" like "no man shall followed fromhis own wrong"thereis anothercompeting"rule" like profit of title,"and thatthereis no way to testthe "the law favors security and of "rules" like these.He concludesthattheseprinciples validity policiesare not valid rules of a law above the law, whichis true,because theyare not rulesat all. He also concludesthattheyare extrawhicheach judge selectsaccordingto his own lights legal standards whichis false.It is as if a zoologist in the exerciseof his discretion, and thenconcludedthatthey had provedthatfishare not mammals, are reallyonlyplants. VI. THE RULE OF RECOGNITION accountsof This discussionwas provokedby our two competing We have been exploringthe second account,which legal principles. theirdoctrineof judicial disseem to adopt through the positivists It is timeto return and we have discovered gravedifficulties. cretion, the first approach?What to the forkin the road. What if we adopt of posiof thisbe forthe skeletalstructure would the consequences Of coursewe should have to drop the second tenet,the doctivism? to make plain that trineof judicial discretion (or, in the alternative, to saythatjudgesmustoften exercise is to be read merely thedoctrine the first tenet, Would we also have to abandon or modify judgment). thatlaw is distinguished by testsof the sortthatcan the proposition Hart'srule of recognition? If rule like Professor be setout in a master are to count as sort law, and of the Riggsand Henningsen principles
25 See, e.g., Dickinson, The Law Behind Law (pts. 1 &e2), 29 COLUM.L. REV. 112, 254 (1929).
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the notion of a masterrule for law, to preserve we are nevertheless then we must be able to deploy some test that all (and only) the thatdo count as law meet. Let us begin with the testHart principles valid rules of law, to see whetherthese can for identifying suggests as well. be made to workforprinciples to Hart,are valid because some compeMostrulesof law, according in enacted them.Some were createdby a legislature, tentinstitution Otherswere createdby judges who enactments. the formof statutory them cases,and thusestablished formulated themto decide particular for the future.But this testof pedigreewill not work as precedents The originof theseas legal forthe Riggsand Henningsenprinciples. or court, decisionof somelegislature lies not in a particular principles and the developedin the profession but in a senseof appropriateness sense of this depends upon power continued Their public over time. being sustained. If it no longer seemed unfair to appropriateness or fairto place special burdens by theirwrongs, allow people to profit dangerous machines, potentially manufacture that oligopolies upon theseprincipleswould no longer play much of a role in new cases, or repealed. (Indeed, it hardly even if theyhad neverbeen overruled like theseas being "overruled"or makes sense to speak of principles declinetheyare eroded,not torpedoed.) "repealed."When they True, if we were challengedto back up our claim thatsome principle is a principleof law, we would mentionany priorcases in which in the argument.We would also thatprinciplewas cited,or figured that principle (even mentionany statutethat seemed to exemplify or in betterif the principlewas cited in the preambleof the statute, thataccompanied or otherlegislative documents thecommittee reports support,we would it). Unless we could findsome such institutional probablyfail to make out our case, and the more supportwe found, the moreweightwe could claim forthe principle. how muchand what fortesting Yet we could not deviseany formula to make a principlea legal kind of institutional supportis necessary orderof magnitude. stillless to fixitsweightat a particular principle, a We argue for particularprincipleby grapplingwith a whole set of standards(themselves principles developingand interacting shifting, interstatutory ratherthan rules) about institutional responsibility, relathe sorts of of various force the precedent, persuasive pretation, and hostsof other moral practices, tion of all these to contemporary into a single We could not bolt all of these together such standards. "rule," even a complex one, and if we could the result would bear which is the littlerelationto Hart's pictureof a rule of recognition, "some feature or picture of a fairlystable master rule specifying
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rule is taken as a conof which by a suggested possession features thatit is a rule ...."26 indication clusiveaffirmative principle foranother we applyin arguing thetechniques Moreover, is designedto) on an do not stand (as Hart's rule of recognition Hart's sharp theysupport. level fromthe principles different entirely does not hold. If we are and validity betweenacceptance distinction fromhis own arguingforthe principlethata man shouldnot profit thatexemplify and legislatures we could cite the actsof courts wrong, as itsvalidity. acceptance it, but thisspeaksas much to the principle's valid at all, perhaps as being (It seemsodd to speak of a principle concept,appropriatefor rules, because validityis an all-or-nothing with a principle'sdimensionof weight.)If we are but inconsistent of precedoctrine well be) to defendthe particular asked(as we might thatwe interpretation, techniqueof statutory dent,or the particular of others cite the practice we shouldcertainly used in thisargument, in using that doctrineor technique.But we should also cite other and this inthatwe believe supportthatpractice, generalprinciples troducesa note of validityinto the chord of acceptance.We might argue,forexample,thatthe use we make of earliercases and statutes analysisof the point of the practiceof by a particular is supported of demoor by the principles of precedent, or the doctrine legislation or by a particularpositionon the properdivisionof cratictheory, else or something betweennational and local institutions, authority streetleading to of thatsort.Nor is this path of supporta one-way on acceptancealone. Our principles some ultimateprincipleresting might be chalor federalism democracy, precedent, of legislation, lenged too; and if theywere we should argue forthem,not only in of the imof each otherand in terms but in terms of practice, terms even though decisions, of judicial and legislative of trends plications of interprethislast would involveappealingto thosesame doctrines to supwe are now trying the principles through tationwe justified in otherwords,principlesrather port. At this level of abstraction, than link together. hang together actsof legal theofficial from drawsupport So eventhough principles theydo not have a simpleor directenough connection institutions, of criteria in terms specified withtheseacts to framethatconnection Is thereany otherroute rule of recognition. master by someultimate undersucha rule? mightbe brought bywhichprinciples Hart does say thata masterrule mightdesignateas law not only but rules established by legal institutions, rulesenactedby particular
26 H.L.A. HART, THE CONCEPr OF LAW 92 (1961).
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customas well. He has in mind a problemthat botheredother posiincludingAustin. Many of our most ancient legal rules were tivists, or a court.When theymade createdby a legislature neverexplicitly appearance in legal opinions and texts,theywere treated their first the cusas already being part of the law because they represented or some specializedpart of it, like practiceof the community, tomary given are rules of (The examplesordinarily the businesscommunity. arise under rights what like the rules governing practice, mercantile a standardformof commercialpaper.)27Since Austin thoughtthat he held that sovereign, all law was the command of a determinate were not law until the courts(as agentsof practices thesecustomary the sovereign)recognizedthem,and that the courtswere indulging If otherwise.But that seemed arbitrary. in a fictionin pretending custommightin itselfbe law, the factthatAustin's thought everyone was not persuasive. said otherwise theory rule, he says,might Austinon thispoint.The master Hart reversed stipulatethatsome customcountsas law even beforethe courtsrecogthis raises for his general nize it. But he does not face the difficulty rule a master to set out thecriteria becausehe does not attempt theory the mightuse for this purpose. It cannot use, as its only criterion, binding, regardthe practiceas morally provisionthatthe community rules frommoral cuslegal customary forthiswould not distinguish long-standing rules,and of coursenot all of the community's tomary at law. If,on theotherhand, are enforced moralobligations customary practiceas regardsthe customary the testis whetherthe community at rule is the undercut, of master the whole point binding, legally least for this class of legal rules. The masterrule, says Hart, marks societyto one with law, because froma primitive the transformation social rules of law other than by for test determining it providesa measuringtheiracceptance.But if the masterrule says merelythat accepts as legally binding are whateverother rules the community such testat all, beyondthe testwe it no then provides legallybinding, should use were thereno masterrule. The masterrule becomes (for we mightas well say thatevery of recognition; thesecases) a non-rule rule of recognition, a namelythe rule has secondary society primitive in disis acceptedas bindingis binding.Hart himself, thatwhatever law, ridiculesthe idea thatsuch a rule could be cussinginternational
the Common Law, 55 COLUM.L. Rxv. 1192 (1955), and materials cited therein at 1193 n.l. As that note makes plain, the actual practices of courts in recognizing trade customs follow the pattern of applying a set of general principles and policies rather than a test that could be captured as part of a rule of recognition.
27 See Note, Custom and Trade Usage: Its Application to Commercial Dealings and
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the proposedrule as "an empty by describing a rule of recognition, rules."28 of conductas obligatory certainstandards that indeed,to a confession of customamounts, Hart's treatment thereare at leastsomerulesof law thatare not bindingbecause they rule but are binding laid down by a master are valid understandards -like the masterrule-because theyare acceptedas bindingby the we admired architecture This chipsat theneat pyramidal community. we can no longersay thatonly the masterrule is in Hart's theory: all otherrulesbeingvalid underits bindingbecauseof itsacceptance, terms. rules Hart has This is perhapsonly a chip, because the customary part of the law. But it does in mind are no longera verysignificant to widenthedamageby bringing thatHart would be reluctant suggest and policieswe underthehead of "custom"all thosecrucialprinciples If he were to call thesepartof the law and yet have been discussing. lies in thedegreeto whichthey admitthattheonlytestof theirforce he would or some partthereof, are acceptedas law by the community reduce thatarea of the law over whichhis masterrule verysharply and policies held any dominion.It is not just thatall the principles thoughthatwould be bad enough.Once these would escape its sway, principlesand policies are accepted as law, and thus as standards it would follow legal obligations, judges mustfollowin determining in and Henfirst time Riggs for the thatruleslike thoseannounced of principles owe theirforceat least in partto the authority ningsen rule of recognition. to the master and so not entirely and policies, his by modifying So we cannotadapt Hart's versionof positivism No testsof pedigree,reto embraceprinciples. rule of recognition nor can his can be formulated, to acts of legislation, latingprinciples tenetof posian exceptionto the first law, itself conceptof customary be made to servewithoutabandoningthat tenet altogether. tivism, If no rule of recoghowever. mustbe considered, One morepossibility whynot say that principles, nitioncan providea testforidentifying of our law? and formthe rule of recognition are ultimate, principles in an Ameris valid law "What the to The answer generalquestion would then require us to state all the principles ican jurisdiction?" constitutional rules) in forcein thatjurisdiction (as well as ultimate of weight. A posiwithappropriate assignments at the time,together rule as the set of these standards the then tivist regard complete might of This solutionhas the attraction of the jurisdiction. of recognition
28 H.L.A.
repetition of the mere fact that the society concerned . . . observes
HART, THE CONCEPT OF LAW 230 (1961).
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If we simply surrender. paradox,but of courseit is an unconditional by the phrase "the completeset of designateour rule of recognition principlesin force,"we achieve only the tautologythat law is law. in forcewe would we triedactuallyto listall the principles If,instead, they are their weight is all important, fail. They are controversial, and changeso fastthatthe startof our list and theyshift numberless, we would be obsoletebefore reachedthe middle.Even ifwe succeeded, we would not have a key forlaw because therewould be nothingleft forour keyto unlock. I conclude that if we treat principlesas law we must reject the is distinguished tenet,that the law of a community first positivists' by some testin the formof a masterrule. from othersocial standards We have alreadydecided thatwe mustthenabandon the second tenet What it into triviality. of judicial discretion-orclarify -the doctrine of legal obligation? theory the positivists' of the thirdtenet, This theoryholds that a legal obligation exists when (and only rule of law imposessuchan obligation.It follows when)an established rule can be fromthis thatin a hard case-when no such established found-there is no legal obligationuntil the judge createsa new rule The judge may apply thatnew rule to the partiesin for the future. of an not the enforcement the case,but thisis ex postfactolegislation, sense) required (in the strong of discretion doctrine The positivists' there discretion has this view of legal obligation,because if a judge can be no legal right or obligation-no entitlement-thathe must and treatprinciples hawever, Once we abandon thatdoctrine, enforce. that a legal obligationmightbe imas law, we raise the possibility rule. as well as by an established of principles posed by a constellation case the whenever exists a that obligation to want legal say We might of of in such an obligation, terms bindinglegal principles supporting thanthecase againstit. is stronger sorts, different Of course,manyquestionswould have to be answeredbeforewe could acceptthatview of legal obligation.If thereis no rule of recognition,no testforlaw in thatsense,how do we decide whichprinciples are to count, and how much, in making such a case? How do we decide whetherone case is betterthan another?If legal obligation judgmentof that sort,how can it prorestson an undemonstrable fora judicial decision that one partyhad a legal vide a justification obligation?Does thisview of obligationsquare with the way lawyers, about withour attitudes judges and laymenspeak,and is it consistent moral obligation?Does thisanalysishelp us to deal with the classical puzzlesabout the nature of law? jurisprudential
existing obligation.
46
promise but even the questions mustbe faced, These questions stops Positivism, on its own thesis, provides. morethanpositivism theories hard cases that sendus tolookfor puzzling, short ofjustthose remits us to a doccases, thepositivist of law.Whenwe reachthese thatleadsnowhere and tellsnothing. His picture ofdiscretion trine holdon ourimagiofrules hasexercised a tenacious oflawas a system If we shakeourselves through its verysimplicity. nation, perhaps be able to builda modeltruer we may model ofrules, loosefrom this andsophistication ofourownpractices. to thecomplexity

Dworkin - The Model of Rules

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The Model of Rules Author(s): Ronald M. Dworkin Source: The University of Chicago Law Review, Vol. 35, No.

The Model of Rules

The Model of Rules

The University of Chicago Law Review

The Model of Rules

of Chicago Law Review The University

PROVINCE OF JURISPRUDENCE DETERMINED

The Model of Rules

The University of ChicagoLaw Review

Id. at 79-88. 5 Id. at 97-107.

The Model of Rules

Id. passim, particularlych. VI.

The University of Chicago Law Review

The Model of Rules

of ChicagoLaw Review The University

The Model of Rules

of Chicago Law Review The University

The Model of Rules

The University of Chicago Law Review

The Model of Rules

Law Review of Chicago The University

The Model of Rules

of Chicago Law Review The University V.

The Model of Rules

The University of Chicago Law Review

The Model of Rules

THE CONCEPT OF IAW 144 (1961).

of Chicago Law Review The University

The Model of Rules

The University of ChicagoLaw Review

The Model of Rules

of Chicago Law Review The University

The Model of Rules

of Chicago Law Review The University

The Model of Rules

of Chicago Law Review The University

repetition of the mere fact that the society concerned . . . observes

HART, THE CONCEPT OF LAW 230 (1961).

The Model of Rutles

of Chicago Law Review The University

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