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The ancient Romans had two words for law: lex, the speciﬁc rules written in statute books, and ius, enduring principles of justice. Contemporary ‘legal positivists’ view lex, the legal rules made by legislatures, courts, and administrative agencies, as the essence of law, and those legal rules are the focus of this research paper. Yet the idea that law also includes a body of principles, in some sense superior to the rules written by the current political regime, persists in many modern languages, in legal theory (Dworkin 1967, Fuller 1964), in popular consciousness (Ewick and Silbey 1998), and in the recurrent political eﬀort to entrench ‘higher law’ principles in written constitutions.
To distinguish rules from principles, legal scholars emphasize the speciﬁcity and binding quality of legal rules. Thus, Lawrence Friedman (1975, p. 26) deﬁnes a legal rule as ‘a proposition of law couched in general terms,’ consisting of a statement of facts and a statement of the legal consequences which follow from those facts, for example, ‘Any person who drives a motor vehicle through a red light is guilty of a violation and shall be ﬁned $50.’ Social scientists, on the other hand, focus on the distinction between legal rules and customary rules or social norms. Thus Max Weber deﬁned legal rules as norms which have some likelihood of being enforced coercively by an oﬃcially-designated staﬀ of legal oﬃcials (Rheinstein 1954, pp. 1vi, 14–15), a deﬁnition that emphasizes the political origin of legal rules and the contingencies surrounding their actual use.
1. Types Of Legal Rules
Legal rules can be unwritten, as in preliterate societies (Hoebel 1964), or written and published, as in larger, literate political systems. Some legal rules are speciﬁc, such as those which prohibit driving over 60 miles per hour, while others, such as those that impose liability for accidents caused by driving ‘unreasonably dangerously,’ articulate vague standards. Highway speed limits are primary rules, designed to regulate ordinary citizens and businesses. Secondary rules, in contrast, guide the making and application of primary rules by government oﬃcials and judges (Hart 1961). Thus secondary rules—often stated in constitutions as well as in statutes—prescribe which oﬃcials have authority to make speed laws (and other laws) for a particular territory, who has authority to enforce them, who has authority to adjudicate disputes about their proper application, and who has authority to build the roads and install traﬃc lights. Other secondary rules govern the making of rules by legislatures, while ‘procedural rules’ govern the process of litigation and adjudication. In political systems that value the rule of law, one fundamental secondary rule is that legal oﬃcials must be guided in their decisions and actions by preexisting, publicly accessible primary and secondary rules.
From a sociolegal perspective, it is useful to distinguish ‘high consensus’ legal rules (such as statutes condemning theft or breach of contract) from rules that are politically, morally, or economically controversial. Controversial rules are generally much harder to enforce than high consensus rules, and they pose more diﬃcult moral dilemmas for oﬃcials and judges who are expected to enforce them.
2. The Political, Social, And Institutional Functions Of Legal Rules
The most obvious function of legal rules is to serve justice, increasing the likelihood that diﬀerent decision-makers will treat like cases alike. Political scientists, however, emphasize the political control function of legal rules (Farber and Frickey 1991): political authorities entrench their policy choices in statutes and administrative rules to increase the odds that those policies will be implemented uniformly by far-ﬂung bureaucrats, law enforcement oﬃcials, and judges. For political authorities, legal rules also serve a broader communicative function, informing citizens and businesses about their obligations and the decisions they might expect from government administrators, law enforcers, and judges. A tax code provides a familiar example. In consequence, legal rules often are said to have a constitutive function, shaping citizens’ conceptions about what is fair, permissible, and proper (Sarat and Kearns 1993, Edelman and Suchman 1997, pp. 503–6, Kagan and Skolnick 1993).
By imposing controls on administrative oﬃcials, police, and judges, legal rules tend to serve a useful function for the citizenry: restraining oﬃcial power, at least in the sense of making it more predictable. Published legal rules provide criteria for holding oﬃcials accountable via judicial review or public criticism. For this reason, legal rules, when combined with a credible governmental commitment to adhere to them, serve yet another function: adding legitimacy to governmental and judicial authority—which helps explain their ubiquity in the governance of nationstates. To Karl Marx and to contemporary ‘critical legal theorists’ (Kennedy 1997, Kairys 1982), this legitimating function has an ominous side, shrouding repressive policies (and, one might add, nonrepressive policies) and coercive penalties in the language of neutrality and restraint of power.
In contemporary democratic countries, legal rules are not infrequently remade in response to popular political movements, litigation by public interest law ﬁrms, and electoral competition. Hence they have still another function: protecting individual rights. Partly because legal rules lend a graspable concreteness to general ideals and notions of justice, ordinary citizens can brandish them as shields and swords against government oﬃcials, businesses, and fellow citizens, both in and outside of court. This is the function referred to by the ancient Greek playwright Euripides in The Suppliant Women when he has Theseus praise the development of written codes of law:
Once written laws exist
People of few resources and the rich
Both have the same recourse to justice. Now
A man of means, if badly spoken of,
Will have no better standing than the weak;
And if the less is in the right, he wins
Against the great.
Many sociolegal scholars would argue that Euripides praised written legal rules too fulsomely. For as rules accumulate within a legal system, acquiring complicated subsections and qualifying clauses, they make the legal process so complex that it becomes inaccessible unless one can aﬀord a lawyer. Rather than guaranteeing equality, therefore, contemporary legal systems tend to provide an advantage to sophisticated, better-ﬁnanced litigants (Galanter 1974). Many sociolegal scholars might have Thrasymachus (the legal cynic of Plato’s Dialogues) respond to Theseus by saying something like this:
All written laws are parchment words
Whose import shifts in each man’s mind.
Thus Justice is tossed this way and that from
Judge to judge, and advocates with clever minds
Oft bend the law to serve their wealthy friends.
After communist Revolutions in Russia and Cuba, new regimes established ‘people’s courts’ in which lay judges, freed from ‘bourgeois’ legal rules, were to ‘do justice’ based on the community’s sense of fairness and social good. But the unhappy experience of ‘socialist justice’ (Markovits 1986, Hendley 1996, Krygier 1990) reminds us that written legal rules have an important political function: preserving judicial autonomy and blunting the risk of tyranny. Moreover, the ‘peoples’ courts’ experience suggests that Theseus was probably more correct than Thrasymachus. Except in homogenous, slow-changing societies, an adjudicatory system based on written legal rules, however imperfect, is likely to approach predictability and even-handedness more closely than systems that eschew ﬁxed rules.
Finally, legal rules enhance the eﬃciency of legal processes. When legal rules are clear and predictably applied, they become weighty ‘bargaining chips’ in negotiating settlements before or during litigation (Mnookin and Kornhauser 1979) and hence most disputes can be resolved without adjudication, while litigation is more costly when legal predictability declines (Priest 1993).
3. The Dilemma Of Rules And Discretion
Because human activity is varied and changing, legal rule-makers suﬀer from relative ignorance of fact and indeterminacy of aim (Hart 1961, p. 125). Rules, therefore, are often underinclusive and often overinclusive—that is, covering activities that are irrelevant or marginal to the primary evil that the rule-makers wished to deal with. Thus, if a motor vehicle code states ‘Any person who drives a motor vehicle through a red light is guilty of a violation and shall be ﬁned $50,’ it ostensibly compels punishment of a motorist who proceeds carefully through a malfunctioning traﬃc light which is stuck on red, or an ambulance driver rushing a patient to the hospital (Goﬀman 1971 p. 102). To apply the rule in such cases is disparaged as legalism (Friedman 1975, pp. 247–8, Nonet and Selznick 1978). Rule-based decision-making can lead to legalism because rules, in their quest for neutrality, often disregard individual litigants’ special attributes and circumstances; this makes it easier for oﬃcials to apply law’s coercive powers, but blunts their sensitivity to justice claims not embodied in the written rules (Noonan 1976).
Many governments seek to prevent the anger generated by legalism by granting legal oﬃcials some discretion to make exceptions. American criminal prosecutors, for example, can generally decline to prosecute violations of the law ‘in the interests of justice.’ Juries, by virtue of the secrecy of their deliberations, can decline to convict when they feel justice requires it (Kadish and Kadish 1973). Another antidote for legalism is to substitute general standards for very speciﬁc rules; for example, requiring custody decisions to be based on ‘the best interests’ of the particular child, taking all relevant facts and considerations into account. Yet granting scores of frontline decision-makers discretion to suspend rules or use their own judgement in implementing vague standards recreates the risk that legal rules were invented to reduce; that is, decisions that vary across diﬀerent individual decision-makers or erode oﬃcial policies.
Most legal institutions, therefore, employ a mix of rule and discretion (Mashaw 1983). Some, such as tax collection agencies, may be instructed to emphasize rule-based decision-making, while others, such as juvenile courts or patent oﬃces, may be allowed to rely on experienced legal decision-makers to apply general standards sensibly and consistently. Generally, an institution’s legal rules are more prescriptive when lawmakers and politically potent interest groups do not trust it to make acceptable decisions. Thus American regulatory statutes, regulations, and permits often contain more prescriptive legal rules than their Western European counterparts (Rubin 1997, Kagan and Axelrad 2000, Rose-Ackerman 1995, Vogel 1986).
4. Can Legal Rules ‘Decide Cases?’
Beginning with the American ‘legal realists’ of the 1920s and 1930s (Ackerman 1974, White 1972, Twining 1973), some scholars have contested the assumption that judges can be ‘bound’ by pre-existing legal rules. In political science, adherents to the ‘attitudinal model’ hold that each judge’s own political values are the best predictors of individual decisions (Rowland and Carp 1983, Spaeth and Segal 1999). More fundamentally, legal philosophers refer to the ‘indeterminacy’ of legal rules, arguing that no matter how long one stares at the words of a constitutional bill of rights, a statute, or a set of judicial precedents, the words alone cannot determine which of two conﬂicting interpretations (and legal outcomes) in a particular case is ‘correct.’ Moreover, in complex legal systems, it is argued, decision-makers inevitably use their own judgment in deciding which of many rules or precedents ‘applies’ to a case. The implication is that all legal decisions are policy decisions, rationalized only after the fact by reference to one particular rule or rule interpretation.
Other scholars, however, argue that within any particular legal institution—a national judiciary, an administrative agency—legal professionals reduce in-determinacy by assigning mutually understood meanings to the rules they work with. They learn to do so through social interaction: in law school classes and legal argument; by explaining and defending their rule interpretations to others; by absorbing institutionspeciﬁc conventions concerning the purpose of particular rules; and interaction with senior oﬃcials or higher authorities who resolve disputes about particular cases. Conventional methods of rule application become part of the socially constructed role of ‘judge,’ ‘regulatory inspector,’ or ‘police oﬃcer.’ Legal oﬃcials are socialized to regard adherence to their institutions’ processes or rule interpretations as obligatory, as essential to their legitimacy as power wielders and their identity as legal professionals (Fuller 1958, Dworkin 1967, Kagan 1978, pp. 88–90, Feeley and Rubin, 1998, p. 338, Kennedy 1997). Indeed, in complex, pluralistic societies, legal oﬃcials often ﬁnd adherence to rules a comforting practice, relieving them of the sense of personal responsibility for decisions which disappoint claimants or impose harsh penalties. Legal oﬃcials who stray from their institution’s conventions learn that their decisions can be criticized or reversed; thus even judges who wish to maximize their policy preferences must act strategically, avoiding decisions that cannot be linked to plausible interpretations of existing rules (Epstein and Knight 1998).
Conventional rule interpretations do not dictate the result in every case, or totally suppress the individual decision-maker’s inclination to decide each case as the decision-maker personally thinks best, but they substantially restrain those impulses. The amount of constraint depends on the degree of homogeneity and hierarchical supervision in particular legal institutions, and on whether the legal rule in question is highly speciﬁc (as in highway speed limits) or is complex, requiring the weighing of many facts (as in a standard demanding payment of ‘compensation’ for accidents caused by ‘negligent’ driving). Yet even in the US Courts of Appeals, where politically appointed Republican and Democratic judges usually divide on party lines in the 20 percent of cases that generate dissenting opinions, in the other 80 percent judges with diﬀerent political preferences agree on which legal rules and precedents are controlling (Gottschall 1986). A stark illustration of the constraining eﬀect of ‘interpretive communities’ and socially constructed judicial roles is provided by Cover’s (1975) account of American judges in Northern states in the 1850s; they returned escaped slaves to Southern ‘slave-catchers,’ notwithstanding the judges’ (and their communities’) moral opposition to slavery, because a recently enacted federal statute seemed so clearly to require that painful action.
5. Styles Of Rule Application
For many judges and administrative oﬃcials, decision-making is a two-step process: the decision-maker ﬁrst ‘looks backwards’ to pre-existing rules to discern what they seem to require, but then ‘looks forward’ to assess the consequences of the rule-based decision in terms of the decision-maker’s understanding of fairness or good public policy (Cardozo 1921, pp. 19–25, Wasserstrom 1961, Kagan 1978). Even if he feels the rule-based decision would not ‘make sense,’ he might nevertheless feel bound to follow the rule; that would be a legalistic decision-making style. In another style—unauthorized discretion—decision-makers ignore the rule and follow their own judgment (Kagan, 1978, p. 93). A third style, retreatism, is to temporize, push the parties to settle the dispute, or ﬁnd other ways of avoiding hard decisions. Finally, in what has been called legal policymaking, the legal decision-maker reinterprets the pre-existing rule, adopting innovative readings or principled exceptions which support the preferred outcome (Feeley and Rubin 1998).
Which of these four modes of rule application predominate in a legal institution is inﬂuenced by the political system and the legal tradition in which it operates. Common law systems appear to allow judges more scope for creative rule interpretation than Western European judiciaries, which are more closely bound by statutory codes and legal treatises (Damaska 1986). Yet judicial policymaking does occur in civil law judiciaries, such as France’s (Lasser 1995), and common law judges in Great Britain tend to feel more tightly bound by existing precedents than their counterparts in the United States—partly because American legal training encourages a more policy oriented mode of legal reasoning, and partly because the fragmentation of lawmaking power in the United States makes judges less vulnerable to prompt ‘overrides’ by the legislature than are judges in parliamentary systems (Atiyah and Summers 1987, Damaska 1990).
Rule application styles also vary across legal institutions in the same legal system. Variations in local political culture produce diﬀerent rule enforcement styles in diﬀerent police departments (Wilson 1968), criminal courts (Levin 1972), and regulatory agencies (Hutter 1988). Variations in rule application also arise from the personality, role conceptions, and political commitments of individual decision-makers; from the skill and persistence with which particular parties or their legal advocates present their arguments; and from the likelihood that the decision will be reported in the news media or subjected to professional review and criticism. US Court of Appeals judges are less likely to decide cases on the basis of their political values when they serve on panels with judges from another political party (Cross and Tiller 1998). Regulatory agencies tend to enforce rules legalistically when they are subjected to public criticism for perceived laxity (Bardach and Kagan 1982) and to adopt a retreatist style when potential complainants remain silent or violators enjoy the backing of political authorities (Gunningham 1987). Legal oﬃcials are more likely to bend the rules when they confront individual subject face to face, as in ‘streetcorner bureaucracies’ (Lipsky 1980) than when decision-making is based on paper dossiers or occurs in highly formal settings (Kagan 1978, p. 152). Overall, the way that legal rules are employed is shaped by the interaction of a legal institution’s political environment, its clientele, its legal culture, and its mode of recruiting, training, and evaluating its personnel.
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