The Theory of Rules
By KARL N. LLEWELLYN
The University of Chicago Press
Copyright © 2011 The University of Chicago
All right reserved.
Chapter One The Frame of the Discussion
When lawyers speak of "the law," the[y] mean sometimes, and a touch vaguely, the net effect of our legal institutions on a case or situation. But more often, and always when it gets down to more accurate discussion, they mean some rule with official status and authority, one which can claim official application in the courts. They mean a rule which already has been or with proper care and skill can be cast into words, and read for the meaning which the courts will give it, a rule which proper care and skill can determine to be the rule covering the case or problem in hand. Such is "the law" which lawyers tell a client "is in his favor", is "clear"; or is "not settled"; [or] is "clear enough, really, but not safe to rely on in the present temper of the court"; [or] is "very satisfactory on this" or is "outrageous."
Lawyers as lawyers do not often bother to state or even to figure out just what they mean by a "rule"; and things they refer to as "rules" may have widely variant form and content. But pretty commonly implicit in any reference to a "rule" are a number of elements which jurisprudes and logicians have sorted out for observation, some of which it pays to look at early. A "rule" is general, and not limited to one person or occasion. A rule ought to be in clear explicit language, and if the rule is really clear, it is or can be put in such language. That language indicates in general terms some fact-situation, and it indicates some "legal consequence" of any such fact-situation. The "legal consequence" is a designation, immediately or remotely, of what a legal official (normally a judge) is supposed to do when he is in proper fashion confronted with proper indication that some state of fact falling within the rule has been presented to him for action. Implicit in a "rule" is a command to any relevant official to act under and according to the rule; and unless the contrary is suggested, there is implicit in any statement that the rule is [a] "clear" prediction that the relevant official will act as he thus officially ought to. When he acts, the organized power of the State will back his action. But part of the idea of "legal" consequence is not only that such official action is proper and often officially mandatory, but that the range and degree of such action is also limited. The action will be, say, fining, not hanging; imprisonment for one year, not for twenty; levy for three hundred dollars and forty cents, not for ten thousand.
Such is the type of thing lawyers have in mind when they speak of "the law" of a case; and the vast sum of all such rules for all the types of case covered by the law is to lawyers "the law" of a State; and the law books are the books out of which "the law" in this sense is to be gathered. With these "positive" or actually prevailing rules lawyers often contrast or compare "justice", reminding the layman that whenever the positive rules are not just, then courts are "courts of law and not courts of justice". With these "substantive" rules which lay down the proper official result of given types of fact-situation lawyers contrast "procedural" rules (which are also rules of law, but rules looking only to getting official results with and out of the "substantive" rules which give men legal "substantive" "rights" and "duties"); and they may tell a client that his right is clear under the law, but that his remedy is worthless or expensive or difficult or uncertain. That means that a full and accurate statement of "the rule" covering his case is really much less favorable than a shorthand and inaccurate statement which hides the hurdles and difficulties in the way of getting his facts properly before a proper official, or which hides limitations vital to the client on what the official is supposed to do. This is important to us because it indicates how widely the degree of accuracy and articulation can vary among the things which lawyers treat as "rules of law"; just as the comparison with "justice" indicates how thoroughly-limited "the law" can be to what it just happens to be, in temporary utter disregard of what it may be for. And the fact that a lawyer may see "the law" as clear, but yet raise doubts as to what the officials will do about it, unless he can "get it before Judge Brown", reminds us that "the law" is not self-operative, in the pinch, in regard to the "legal consequence" the rule lays down; that "legal consequence" is an officially stated "should be", but in the pinch it can be translated into "isness" only through a human being in office. The further fact that the lawyer may find "the law" to be uncertain or unsettled or to be not clear, although we know that if a question is properly presented to a judge he has to do something clear about it, reminds us again of the human element in the picture. For if "the law" is to be clear, somebody or some body must first have made it clear; and even if it is not clear, a person or persons in the shape of a court acting "under and according to the law" must, when properly appealed to, take some action which will render more clear in the future the same "law" which has failed to get clear beforehand. Finally, the lawyers are all agreed that digging "the law" out of the books of law is something of an art. The untutored layman will have his troubles doing that. Indeed, lawyers agree that lawyers differ among themselves in the skill and accuracy with which they accomplish such digging. Moreover, judges are also lawyers, and are also lawyers of unequal ability, and judges are helped and counseled in their search for and determination of "the law" by other lawyers, again of uneven ability.
From this is would seem to follow that in the determination of what "the law" is and means in any cause, the lawyers themselves recognize the influence of factors additional and supplementary to such "rules of law" as we have been discussing. One type of such factor is, obviously, something in the nature of professional lawyer's techniques, whose possession marks the lawyer off from the medic or the structural steel worker or the housewife—from all laymen. Another type of factor would seem to be the personal skill, intuition, artistry, or thumb-fingeredness and obtuseness, of particular individuals at the bar and on the bench. Certainly, there is something of the trade about the determination, and there is something of the individual about it; and I think no lawyer will claim that we have "rules" which fully and satisfyingly cover and guide and control either of these somethings. Indeed, most lawyers will tell you that one main office of the "rules of law" is to reduce so far as possible such variations as must occur in the working out of these other two somethings. And, with a sigh or a grin, they will point out that in practice they find that "so far as possible" reaches by no means far enough to make things run in disregard of the person; that the good ones are good, though even a good one has his kinks; while the bad ones are pretty sour, but not all sour the same way; and there is indeed a lot more than "the law" to the practice of law.—Meantime, it will take a cynic of unusual lack of balance to disbelieve that at least many of the officials, where "the law" of any case before them is not crystal clear, allow an ideal of what good law for that situation might be to influence the touch of shaping which they proceed to give to "the law" by their decision and action. And even the most psychopathic of cynics, squinting all things in terms of lowest motivation, will have to admit that to give effect to a low motive in decision, a judge would still have to give his result some advance idealization in the form of a projected picture of how his decision might better serve the common woe.
The resulting picture seems clear and straight enough, and it ought to look to a layman when he thinks about it much as it looks to a lawyer when the lawyer stops to look at it.
First, we have rules of law, lots of them, some very clear, some not so clear, some exceedingly unclear. In the measure of their clarity, they make possible, in the classes of case they cover, the arrangement of official action with precision and in independence of the person. Even where unclear to a layman, they may be so built that the most ordinary techniques of the lawyer's trade will make them clear to any lawyer. Rules like that plainly have an important function to perform in our society. They help tremendously in our predicting of official action, in our knowing what action laymen are officially expected to take, in our planning lay action and trimming lay sails to make the official wind drive the boat along. They help to control official action; a standard against which improper action by officials can be detected, and corrected, or castigated. It is easy to see why men like the idea of a whole regime of such rules—so much so as to sometimes talk and think and emote as if all our rules were that sort of fine clear rules, and as if we had in consequence a government wholly "of laws" and not at all "of men." With such rules before the eye as being what "a rule of law," any "rule of law" is, it is also easy to see why "the rules" loom so large in lawyers' thought as to constitute in much of their thinking, "the law", all of "the law"; and to see why study of "the law" is given over so largely to study of the rules; and why when things do not go to suit, one of the first thoughts can be to pass a law about it: a new rule, a clear rule, a rule of this ideal type.
But, second, and equally, it is plain that not all the rules are so clear as this, even to lawyers or to judges and administrators. Indeed it is interesting, when one more closely watches the training of the prospective lawyers, to discover how much of that training goes to technique of trying to get a clarity out of the available books which those books do not offer in any simple accessible form; and it is even more interesting to discover how unevenly those techniques are in fact learned, and even taught; and how largely also they are inarticulate, techniques not available to ready communication; and, whether they are articulate or just ways of doing the work, to be "picked up", how largely the techniques are inconsistent with each other. Not all the rules, I say, nor all the lawyer's trade techniques of work on them, are ideally clear.
Yet rules, as aforesaid, are often clear to lawyers, as to their application, their effect, their range, which are not at all clear to laymen. Now this can only mean that to some important extent the trade techniques take hold of the rules and shape their meaning to persons of the trade. Lawyers somehow get so that they get meaning out of language which other men do not get; to an important extent they get very similar meaning, among themselves. In the language of the sociologist, the lawyers have become the personnel of an institution; they have become broken into ways of doing, ways of talking, ways of thinking, ways of feeling, which are transmissible to new personnel. And never is the transmission of the ways which make up an institutional pattern wholly by way of conscious instruction, still less wholly by way of formulated rules in any handbook or set of regulations. Some of the transmission just happens—it happens by association and imitation, by haphazard correction and advice, above all, by doing the work, by getting "the hang of it". Again, never is any complex institution capable of breaking in new personnel with the identity of resultant reaction once achieved by Mr. Tillen's dancing girls. Not even old Japan accomplished such a uniform shaping of men; the scattered multiform training of American lawyers certainly does not.
We are left, then, with a range both of great uniformity and of openness to material variation within the field "covered" by the rules of law themselves. We are left, secondly, wherever the rules fail to have been formulated with crystal clarity, again both with a field of prospective uniformity and a field of prospective variation in the understanding and the action of lawyer-personnel and of judge-personnel and of other official personnel. We are left, by consequence, with a government both of laws and of men; a government which ranges from utter predominance of the first, through degrees of mixture in which individual variation becomes more and more important, on into spots where the most vital factor in the case will be the idiosyncrasy of the particular official. We are left with a rationalized and articulate framework of rules which aims at elimination of such idiosyncrasy, but which makes the grade only in part. We find that the rationalized and articulate framework is partly but not wholly implemented and supplemented by less rationalized and above all less articulate institutional machinery which is the engine for accomplishing much regularity which the less neatly articulate of the rules fail, in themselves, to achieve. We must find, within the leeway that is left, that officials govern their actions at least in part by ideals about a good society and about a better law, and by forward projection of generalizations about the future use of any decision as a guide—as being in effect, though perhaps not in intent, creative of new law. And, turning back to the framework of our rules, we can see that each of those rules came into being by way of one man's judgment, or of many men's judgments, or of the successive judgments of many men, about what ought to be "the law" of a situation—whether such "ought judgments" were directed to the commonweal or to their own. Aspiration of some kind went into the making of those rules, and so did imaginative forward-projection of some minds upon at least some parts of what the results of any rules would be, or even upon plans to which a rule became a deliberate tool.
All of this fits into a general pattern not too hard to state and to see. There are yearnings and aspirations, there are vaguely or clearly envisaged idealizations of conditions which might be made to be, there are purposes in sunset cloud or mental blueprint. To these any relevant rule or rule-structure is related as means relate to ends. A means is to be appropriate, a means is to be effective. A chosen means is not only a tool but a limitation. If it is inappropriate, its very effectiveness is a crippling of its end. Thus with the rules of law. They are measures, measures to be judged against their purposes. But once called into being, they are also limitations on effectuation of any purposes which do not fit the actual form and nature of the rules. Their "purposes", moreover, are not the simple relatively single purposes of a bachelor farmer planning his kitchen garden. Their historical or genetic purposes are mined of many men and many motives; their emergence is also commonly not at one stroke, but drags over a changing stretch of time, with the men and the purposes of the men concerned shifting and changing in the process. Though the purpose-means pattern of idea is simple, the pattern of the weaving is bafflingly complex. Yet there results, in any rule or body of inter-related rules, a type of to All-of-us, a type of net purpose which must be figured out if the rule is to have meaning beyond the flat fiat or fact that "Thus it is." Let me repeat, moreover, that unless the rule, and all of a body of inter-related rules taken together, and also the net meaning of the whole of them on any point within their purview, has been made clear as a mountain pool in wind-still sunlight, then fresh idealizations not found in the words of the rules are entering constantly into the shaping of the meaning of the rules.
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