The Rule of Rules: Morality, Rules, and the Dilemmas of Law

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Rules perform a moral function by restating moral principles in concrete terms, so as to reduce the uncertainty, error, and controversy that result when individuals follow their own unconstrained moral judgment. Although reason dictates that we must follow rules to avoid destructive error and controversy, rules—and hence laws—are imperfect, and reason also dictates that we ought not follow them when we believe they produce the wrong result in a particular case. In The Rule of Rules Larry Alexander and Emily Sherwin examine this dilemma.
Once the importance of this moral and practical conflict is acknowledged, the authors argue, authoritative rules become the central problems of jurisprudence. The inevitable gap between rules and background morality cannot be bridged, they claim, although many contemporary jurisprudential schools of thought are misguided attempts to do so. Alexander and Sherwin work through this dilemma, which lies at the heart of such ongoing jurisprudential controversies as how judges should reason in deciding cases, what effect should be given to legal precedent, and what status, if any, should be accorded to “legal principles.” In the end, their rigorous discussion sheds light on such topics as the nature of interpretation, the ancient dispute among legal theorists over natural law versus positivism, the obligation to obey law, constitutionalism, and the relation between law and coercion.
Those interested in jurisprudence, legal theory, and political philosophy will benefit from the edifying discussion in The Rule of Rules.

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Editorial Reviews

From the Publisher
“Accessible to the non-specialist, the arguments found in The Rule of Rules are clearly made and well-illustrated with concrete examples. The authors address a large number of topics and take up controversial positions on most. This will make an important contribution to ongoing jurisprudential debates.”—Mark Tushnet, Georgetown University Law Center

“This book not only substantially advances our understanding of the nature of rules themselves, but is by some margin the best treatment there is of the relationship between rules and law. In an era in which context, flexibility, and discretion are often uncritically celebrated, this book throws down the gauntlet for a rule-based understanding of law. No one who is interested in the nature of legal reasoning and legal decision-making can afford to ignore this book, and no one who is skeptical about the importance of rules to law can avoid the challenges that Alexander and Sherwin present.”—Frederick Schauer, Harvard University

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Product Details

  • ISBN-13: 9780822327363
  • Publisher: Duke University Press Books
  • Publication date: 8/31/2001
  • Edition description: New Edition
  • Pages: 288
  • Product dimensions: 5.90 (w) x 9.20 (h) x 1.10 (d)

Read an Excerpt

The rule of rules

Morality, rules, and the dillemas of law
By Larry Alexander

Duke University Press

ISBN: 0-8223-2736-8

Chapter One

Disagreement, Uncertainty, and Authoritative Settlement

Imagine a small community, larger than a kinship group, but sufficiently small and geographically compact that everyone knows everyone else and must deal from time to time with everyone else. Perhaps imagining a community of several hundred people will get us started.

Imagine also that the members of this community have roughly similar views about their moral rights and obligations. At least, their views are fairly similar if we characterize those views at a high level of generality. Thus, they generally agree that innocent lives should not be taken, that property rights should be respected, that promises should ordinarily be kept, that undue risks to others should be avoided, and that everyone should contribute a fair share to support actions necessary for the common good. In other words, they agree about moral rights and duties at the level of abstraction at which we tend to agree with one another.

Finally, we ask you to imagine, not that everyone in this community is a saint, but that everyone will honor his moral obligations as he sees them almost all the time. In other words, the members of this community are fairly strongly motivated to act morally toward one another.

Now this community as we have described it so far sounds prettyidyllic, and compared to most communities of which we are aware, other than the tribal or the religious, it is. Nonetheless, as favorably situated as this community is in terms of general moral agreement and good will, it lacks something necessary to prevent ruinous discord. It lacks authoritative rules.

Let us explain. We have said that the members of this community generally agree about the content of their moral rights and duties at a high level of abstraction. Yet as the moral questions become more specific-Does a fetus have a moral right not to be aborted? Should one be liable without regard to fault for causing an accident? Should a contractual obligation be extinguished when the purpose of the contract has been frustrated? Should resources be divided so as to reflect differences in welfare? and so on-they begin to disagree.

Moreover, even when they agree about the formulation of moral rights and duties, they may disagree about the facts that govern when and how those moral rights and duties apply. For example, although they may agree that no one should put dangerous pollutants in the water supply, they may disagree over whether a certain pesticide dangerously pollutes the water supply. Or, if they agree that those in irreversible comas should be regarded as "dead," they may disagree over whether a certain physical condition constitutes an irreversible coma.

Now these disagreements about moral rights and duties can produce considerable strife and turmoil, even among people of good will. Indeed, the road to the nasty, brutish, and short lives of the Hobbesian state of nature does not require people motivated solely by selfishness and predatory opportunism. Moral disagreement over concrete courses of conduct, coupled with the motivation to do the right thing, can lead to the Hobbesian state of affairs as expeditiously as naked self-interest.

What our otherwise rather favorably situated community needs to avert these bleak prospects, and what it lacks in the picture we have thus far presented, is a method for resolving these concrete moral disagreements and uncertainties authoritatively. That is, the community lacks the capability for authoritative settlement. Authoritative settlement is something of a redundancy. The function of practical authority-authority about what ought to be done-is precisely to settle the question what ought to be done. And to settle that question requires that the answer given be treated as if it is correct by those for whom the answer is supposed to settle the question. Once the question is settled, those who want to know what to do need not deliberate but need only consult the terms of settlement. They no longer need to debate the reasons behind those terms, reasons about which they disagreed, thus necessitating the settlement. Moreover, not only are they no longer required to consult the reasons behind the settlement in determining how to act, they are also required not to heed those reasons if, from their perspective, those reasons conflict with the terms of the settlement. Given that the objective is a settlement, its terms must be authoritative, which means that they must supplant the reasons upon which they are based.

Let us illustrate the previous paragraph with an example. Suppose Paul operates a factory that dumps a certain chemical waste product into the river. Paula is a downstream water user who believes that the chemical is a dangerous pollutant and wants Paul to stop the dumping. Paul agrees that he has a moral obligation to Paula not to dump dangerous chemicals in the river, but he denies that the chemical is dangerous. Suppose now there is an authoritative settlement of the question "Is Paul morally obligated not to dump because the chemical is dangerous?," and the answer it gives is that Paul is obligated not to dump. If Paul must decide whether he may continue dumping, he need only consult the terms of the authoritative settlement, which will tell him that he may not. He may continue to believe that the reasons behind the settlement-the dangerousness of the chemical-point to a different result. If the settlement is truly authoritative, however, he will not believe that he may still act on those reasons. The settlement has supplanted them in his decision-making.

Now that we have explained what an authoritative settlement entails, we can also describe the benefits it can bring to our community. Before authoritative settlements, members disagreed or were uncertain about such matters as how fast they should drive, when they were relieved from their contractual obligations, and how much each should contribute toward the support of the community's poor. Even if they did not disagree about morality at an abstract level, concrete disagreements and uncertainties about the more particular shapes of moral principles and about factual matters resulted in the types of disagreements and uncertainties just described. And those disagreements and uncertainties are potentially quite destructive. If Agnes believes one should drive fifty-five miles per hour, and on the left side of the road, but Ben believes one should drive seventy-five and on the right, serious collisions are likely to result. If Alfred believes that Victor is in an irreversible coma and should be taken off life support, so that the resources can be used to help others, but Bertha believes the opposite, Bertha might feel obligated to use force to prevent Alfred from disconnecting Victor. Finally, if Alex mistakenly believes that mercury is not harmful in the water supply, he might be tempted to dump it there and avoid the costs of alternative means of disposal.

Authoritative settlement solves the problems of coordination, expertise, and efficiency. Coordination problems are those that stem from the existence of moral disagreement. Agnes's opinion on how to drive and Ben's might be equally sound, and yet if their opinions differ, and if they are free to act as they see fit, disaster will follow. Alfred and Bertha's disagreement over the status of Victor leads to a coordination problem because it may lead them into "moral combat."

As we are using the term, a coordination problem is any cost that results from moral disagreement or from uncertainty about how others will resolve questions about what they are morally permitted, required, or forbidden to do. Moral combat is a coordination problem, as are attempts by agents to undertake mutually incompatible actions. So, too, are all the costs of upset expectations and the costs incurred to avoid the costs of upset expectations. These latter costs are frequently referred to under the headings of reliance and predictability (or the lack thereof). We view them as but one genus of the species coordination problem.

Any authoritative settlement can solve coordination problems. Declaring Victor to be in an irreversible coma solves Alfred and Bertha's coordination problem. So, too, does declaring Victor not to be in an irreversible coma. Likewise, declaring the rules of the road to include a fifty-five-mile-per-hour speed limit and driving on the right solves Agnes and Ben's coordination problem-though perhaps no better than a seventy-five-mile-per-hour speed limit and driving on the left. Sometimes the problem is exclusively one of coordination, and all that is needed to solve it is an authoritative settlement, whatever its terms.

Usually, however, there are better and worse ways of settling matters. There is a fact of the matter about whether Victor is in an irreversible coma. There are costs and benefits associated with the choice of a speed limit. In these circumstances, a good solution calls not only for coordination but also for expertise. And in Alex's case of dumping mercury, there is no coordination problem at all. Rather, the problem is solely a problem of expertise, or Alex's lack thereof.

Thus, the second benefit produced by authoritative settlements is a reduction in individual decision-making error through the authoritative decision-maker's greater moral and factual expertise. If there are persons in the community whose moral and factual expertise is greater than that of others, then having them authoritatively settle disagreements and uncertainties about what ought to be done solves both the coordination and expertise problems.

Finally, a third benefit produced by authoritative settlements is a reduction in decision-making costs. Even if members of the community could, through lengthy deliberations, arrive at coordinated and correct decisions, the moral costs in terms of time and other resources of such deliberations might outweigh the moral gains. For example, suppose "Drive seventy-five on the left" is slightly preferable to "Drive fifty-five on the right." And suppose that if Alfred and Bertha deliberate for a long time and consult enough other people, they will both arrive at the conclusion that they should drive seventy-five on the left. Nevertheless, the net cost of their deliberations may exceed the net gain over the rule "Drive fifty-five on the right." Without the rule as an authoritative settlement of how they ought to drive, they will have to deliberate. And because they do not know in advance where deliberation will lead them and what the stakes are, they will keep on deliberating until they reach a decision, even if the costs of deliberation exceed the gains. Once a deliberative cost is sunk, it provides no reason against continuing to deliberate. Only settlement by some means or another keeps us from potentially squandering all our resources on deliberating about what to do, much in the manner of Buridan's ass. In other words, authoritative settlement is efficient.

Achieving Authoritative Settlements: The First Steps

We have shown why our imagined community needs authoritative settlements of moral disagreements. Lack of coordination and expertise threaten deterioration into a Hobbesian nightmare despite the members' general similarity of moral views and their willingness to act on moral reasons. But how does authoritative settlement get started? Necessity on its own will not generate solutions.

The requisite first step is for all the members of the community to agree that they need ways of authoritatively settling their moral controversies. The logical next step is for them to designate someone as the authoritative settlor. Suppose, for example, that they all agree that Lex has proven in the past to possess the reasoning ability and the knowledge to resolve moral controversies well. They might then all accept the following rule: "Let Lex decide (authoritatively settle) our moral controversies." And let us suppose further that Lex begins his work by resolving Agnes and Ben's conflict and issuing the following rule: "The speed limit shall be fifty-five miles per hour."

Notice that at this point in our story, we have two rules. The first rule-"Let Lex decide"-exists because the members of the community agree to its terms. That is, its existence is based on its acceptance as normative.

The second rule-"Drive fifty-five"-exists because it has been posited by someone with authority to settle moral controversies, Lex. The posited rule has authority to settle moral controversies because its promulgator, Lex, does. And he has authority because the society accepts a rule to that effect.

Before we continue down the path toward a more elaborate set of rules and more complications, we wish to comment on a point that might be nagging some readers: if the members of this community are plagued by a predictable degree of moral disagreement, how could they agree that Lex has greater moral expertise than anyone else? In other words, if, in the realm of moral expertise, "it takes one to know one," will not the community's moral disagreements preclude agreement on the rule "Let Lex decide"?

We think that so long as the basic moral intuitions of the members are not wildly disparate, there is a reasonable likelihood that they will be able to agree on relative moral expertise despite their moral disagreements. In other domains one can identify experts through experience without becoming an expert oneself. For example, most people make errors in reasoning about risks. They can, however, be brought to understand their errors by others. They will rightly regard those who consistently demonstrate their errors to them as experts in reasoning about risks. Yet although these experts can bring others to understand their mistakes, such understanding will not make those who were mistaken into experts themselves. Left to their own devices, they will err again, and they realize that. That is why they can identify those who point out their mistakes as experts and yet not be experts themselves. Defects in moral judgment may be more difficult to demonstrate than defects in risk assessment, yet moral expertise will often be recognizable with hindsight.

Moreover, even if members of our hypothetical community regard themselves as equally expert in moral reasoning, they may agree that when they themselves must decide what to do, they are subject to cognitive biases and errors that do not affect them to nearly the same degree when they are deciding in a more disinterested posture what others ought to do. Thus, they might agree that anyone who is in the role of Lex will be more morally expert than those facing decisions about how they should act, if for no other reason than the authority's greater degree of disinterest. (This point also suggests as a corollary that Lex's decisions might not be deemed authoritative regarding matters on which Lex has a certain type of personal stake.)

Achieving Authoritative Settlements: Some Complications

At this point we have a rule based on acceptance designating Lex as the community's moral authority ("Let Lex decide"). And we also have a rule, promulgated (posited) by Lex and deriving its authority from Lex's authority, that resolves a particular moral controversy ("Drive fifty-five").

Let us imagine that Lex is capable of moving from moral dispute to moral dispute to moral query, resolving them as they arise. If so, Lex need not resolve general moral questions; he need only resolve the particular dispute or question before him. Thus, Lex can tell Paul that Paul may or may not dump a particular pollutant in a particular river. Lex need not resolve more general potential controversies because he can resolve those general controversies' and questions' particular manifestations. Of course, to resolve particular controversies, Lex will perforce employ general moral and empirical principles. The point is that he need not resolve authoritatively any issue broader than the specific controversy he confronts.


Excerpted from The rule of rules by Larry Alexander Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Part I. The Circumstances of Law
1. Disagreement, Uncertainty, and Authoritative Settlement
2. Settlement Requisites and the Nature of Authoritative Rules
3. Hierarchies of Rules
Part II. Acting Under Rules
4. The Problem of Rules
5. Interpretation of Rules
Part III. Issues of Legal Reasoning
6. Reasoning by Analogy
7. Reasoning in Light of Precedent
8. Reasoning from Legal Principles
Part IV. The Settlement Function and Jurisprudential Debates
 9.  Legal Positivism and Natural Law
10. Lex, Rules, and Some Miscellaneous Problems of Jurisprudence
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