Legal Theory and the Role of Rules

I. Introduction

Before I consider Frederick Schauer's Rules and the Rule of Law^l in detail, let me emphasize the ways in which I agree with him. I have sympathy with Schauer's theoretical agenda and agree with most of his theses. I believe that it is both important and true to say that rules can bind and that they often do, in law and in life; that not all decision-making, and not even all legal decision-making, is rule-based, but much of it is; and that this rule-basedness cannot be dismissed, simply and in a sweeping way, as unjustified.

I further agree with Schauer that an important function of rules is to limit powers and to enforce conceptions of a desirable division of responsibility and acceptable answers to who should decide an issue, not only how an issue should be decided. Finally, I think that it is important to stress that we are discussing not only the moral responsibilities of judges making individual decisions, but also those of the people deciding about desirable decision-making environments. At times, these responsibilities may pull in different directions, justifying a requirement of obedience to rules even when the requirement seems unjustified.

Schauer's enterprise is a complex one: He wishes to discuss the role, actual and desirable, of rules in the law, and the relationship between this question and the nature of law, as it is reflected in general theories about the law.² His argument, in a nutshell, is that the essence of law neither requires nor pre-eludes that rules will be central to law.³ Consequently, Schauer concludes that general theories about law leave open the descriptive and normative questions about the role of rules in law.⁴ After reaching that conclusion, Schauer describes and evaluates the role that rules play and should play in the American legal system.⁵ Schauer argues that, in fact, legal decision-makers in the American system take rules into consideration, but deviate from them if there are strong reasons for doing so.⁶ In other words, rules constrain, but their power is not always conclusive. Despite Schauer's belief that this is a contingent empirical statement about the American legal system, one not dictated by any theory about the nature of law, he labels his descriptive thesis "presumptive positivism."⁷ Furthermore, he apparently also advocates the desirability of the same presumptive approach to rules. Positivism, we should recall, is one type of a general theory of law, much criticized by contemporary jurisprudence. Thus, there is a tension between the first part of Schauer's argument—that legal theory in general, and positivism in particular, does not decide the issue of rules in the law—and the second part—that the role of rules in the American legal system is best captured by presumptive positivism, and presumptive positivism is also the desirable attitude to rules.

This Article explores this tension. First, I examine what general theories of law (as distinct both from general theories of action or morals and from other types of investigations concerning law and specific legal systems), positivism included, tell us about the actual and the desirable role of rules in the law.⁸ I conclude that the contribution of such general theories to Schauer's questions is indirect and limited: The classical descriptive theories of law all hold that law is largely a matter of general rules.⁹ Furthermore, they usually do not offer any detailed account of how judges actually carry out adjudication, or how judges relate to the legal rules of their particular system. In addition, these theories do not propose any normative theory of adjudication (that is, a theory of how judges should decide cases), because their conception of legal theory is not normative.¹⁰ In this sense, general theories of law indeed leave open Schauer's questions.¹¹ There is no special message, however, that positivism, as opposed to other theories of law, provides on this point.

In Part III, I make a few comments about the descriptive and the normative role of rules in law. Basically, I agree with Schauer that "presumptive ruleness" (a term I prefer to presumptive positivism) is an illuminating way to describe what happens with rules and implies a good general recommendation for dealing with rules. Unfortunately, I believe that presumptive ruleness does not have much practical "bite," either as description or as a recommendation. This is a failure shared by presumptive ruleness and accounts of adjudication in general theories of law: Most of the descriptive and normative work remains to be done, even if we agree on presumptive ruleness.

In Part IV, I consider Schauer's choice of "presumptive positivism" as the label for his descriptive and normative theses. I address the question whether there is a strong connection between positivism and "ruleness" that makes them both targets for similar criticisms of their contribution to undesirable decision-making in law.

My conclusion is that we should discuss the role of rules in law on its own merits, without trying to implicate general legal theory in the discussion. Nevertheless, similarities exist in the ways that scholars use theories of law (for example, natural law theories, positivism, and realism) and formal attributes of decision-making (for example, rules versus principles, following rules versus creative judge-made legislation, and the usage of rhetoric of "rights") in contemporary legal thought. Often, criticisms of both these theories and attributes are misplaced, distorting discussions of the theories and attributes and disguising the political or ideological concerns presumably motivating the critics.

Let me be clear that I do not imply that developing general legal theory is more important or more profound than developing and articulating detailed descriptive and normative theories about adjudication and the role of rules. If a choice must be made, I think that the opposite is the case. What is important is to understand the nature of the two enterprises, and not to expect that general theories about the nature of law will solve all of our legal and social problems.¹²

II. Legal Theory I

To understand the role that rules may play in a field or area, we need a theory of rules and their possible roles, and a theory of the field in question. Real understanding is likely to lie in the intersection between these two theories. This is because rules are not unique to any particular field, but their role and importance may vary with the context in which the rules are used.¹³

Schematically, a general theory of the role of rules will have a conceptual-analytical part (What are rules?), a descriptive part (How do rules affect behavior?), and an evaluative part (Are the ways that rules affect behavior, in principle, good or bad? Can we identify circumstances in which they will tend to be good or bad? What follows for the identification of circumstances in which we ought to have (or not to have) rules? What should be our attitude toward rules?). These parts of the theory are interdependent, in the sense that both the descriptive and the normative part use the answers provided in the conceptual-analytical part, and the normative part evaluates the effects of rules identified by the descriptive part.¹⁴ A general theory of law will have the same three parts.¹⁵

A general theory of law is relevant to a theory about the role of rules in law to the extent that its statements are relevant, as premises, in arguments about the role of rules in law. Schauer is right to suggest that general legal theory may be relevant in at least two senses: It will be relevant if it defines (or describes) law, wholly or partly, in terms of rules (at least in the sense that it will identify law as a system that uses rules), or if it denies that law can be, or ever is, a matter of rules. Common sense tells us that the second position is false. There is less superficial agreement on the first one: Legal theorists do give rules different importance in their characterizations of law. I shall suggest, however, that no legal theorist has ever argued that the legal system is nothing but rules, and that no one has argued that we can have a legal system without legal rules.

Those who appear to challenge the idea that law can involve rules, or that it ever does (as distinguished from those who argue that there is more rhetoric of rule-following than is possible, reflective of reality, or desirable), typically do not invoke any of the special characteristics of law. They deny that legal rules make any difference because of either the psychological inability or the general incoherence of the idea of humans following rules.¹⁶ If they are right, a description of humans and human societies that includes rules and rule-following is part of a huge exercise in false consciousness. The radicalness of the challenge is clarified when we recall that "rules" include not only legal rules, but all rules, including rules of games, mathematics, logic, language, and prudence. Such radical skepticism is not unknown in human thought, but it has never affected our life or our day-to-day descriptions of our life.¹⁷ In any event, this has nothing to do with legal theory. All legal theories, like all legal systems and all language and many other human activities, presuppose that humans can identify what rules require, and that they can follow them.¹⁸ As Schauer notes, it is harder to decide whether law must be exclusively a matter of rules.¹⁹ If legal theory defines law as consisting only of rules, then the definition of law preempts the question whether and where we should have legal rules (as opposed to other ways of having "law").

Some theorists do define law in terms of rules.²⁰ Even theories that do not offer definitions of law feature prominently legal rules or norms. In fact, all descriptive theories of law presuppose, as a central feature of law, the existence of legal norms that preexist actual litigation.²¹ So, in one formulation of Schauer's first question, legal theory does dictate an answer, and the answer is not the one that he gives. This is not fatal, because Schauer's question is not whether we can conceive of law without legal norms,²² but whether there may be contexts of decision-making that will be particularistic and that will be called "legal." No legal theorist, no matter how important the idea of rules is to his conception of law, will deny this.²³

The equivocation in Schauer's first question—must law be a matter of rules?—stems from two sources. First is the often-made move between a theory of law (that is, the appropriate characterization of the social institution of law) and a theory of adjudication (that is, legal decision-making by officials in that realm). We may collapse the two descriptive theories together only if we define law as everything that courts or other legal decision-makers invoke to justify their decisions (or, in a less popular move, everything that in fact explains judicial decisions). Some theorists, notably Dworkin, make just this move.²⁴ Others find it more fruitful to say that law is independent of adjudication, and often preexists decisions by legal officials, and that it is illuminating and interesting to observe when courts use the law and when they invoke other types of authority.²⁵ For these theorists, a characterization of law in terms of general norms does not commit them to a particular stand on the nature of decision-making in law. It may well be that many decisions within the law and in its shadow are not made on the basis of rules (laws) alone.

Even Dworkinians, however, may still, by Schauer's account, allow for particularistic decision-making. The second source of the equivocation is that rules, according to Schauer, vary in terms of generality and vagueness. This allows decision-making that will be both rule-based, because it will be done in the context of a rule, and particularistic, because the rule requires that many detailed circumstances be taken into account.²⁶ Good examples might be judging "in the best interest of the child" or "in the public interest." According to Fuller, these standards meet the requirements of the "inner morality of law," and therefore are good examples of "submitting human behavior to rules."²⁷ They do, however, allow a particularistic mode of decision-making, thus supporting Schauer's claim that legal decision-making is not exhausted by rule-based decisions. In other words, indeterminacy and its implications are much less central to Fuller's concerns than they are to Schauer's.²⁸ Their conceptions of rules and rule-based decisions similarly differ.

All general legal theories characterize law in part as a set of general norms. It is not surprising that they do. First, our common-sense experience with legal systems includes a body of rules identified as legal. This is, in fact, a primary subject of legal education. This prevalence of legal rules, though, is not accidental. Dispute resolution and authoritative decision-making in particular cases is but one (albeit indispensable) function of law. Even if we allow a cadi to decide disputes as he sees fit, this does not imply that his decisions are not governed by rules.²⁹ Usually, his decisions are made against a background of social rules governing the conduct of members of society. Disputes arise only when this regulatory activity of rules breaks down. The cadi, in turn, will often base his decisions on an interpretation of the background rules. Furthermore, by the time we observe the cadi's adjudication as a practice, he has probably adopted the great maxim of justice that "equal cases should be treated alike." Chances are that the cadi's decisions create new social rules, which help people predict his future decisions so that they may avoid going to him for resolution of the next similar dispute. An important task of the law is to identify in advance what people should do. This allows all to maximize their welfare. The law could not achieve this function without general rules of conduct.

The social institution of law has never existed without rules of conduct in the background. It is a defining feature of law that some, but not all, of these rules of conduct are made into "law." In this sense, law must be a matter of rules. This does not preclude the possibility that legal institutions (for example, courts) will not always be required to decide only according to rules. As Schauer notes, there are many contexts in which legal power-holders are given broad discretion.³⁰ But this discretion is "parasitic" on the fact that the officials are a part of an institutional system in which some, in fact many, contexts are governed by a combination of rules of jurisdiction and substantive rules of conduct, with stronger senses of "ruleness."

Therefore, in some sense, law must be a matter of rules. But if rules may require particularistic decision-making, if the nature of the decision-making process in a particular culture depends on the approach to rules that that particular culture practices, and if both the type of rules used and the approach to rules are contingent, can a general theory of law tell us more about how law is a matter of rules? It is here, I believe, that general theories of law, including positivism, cease to be relevant to Schauer's concerns. The particular account of adjudication, the decision who should decide what and the decision how general rules should be, is not a matter of general jurisprudence. Consequently, general theories just leave all these questions open.

The point might become clearer if we recall what general theories of law seek to do. Theories of law seek to give an adequate account of the phenomenon of law. Debates about the adequacy of the account are internal to the enterprise of seeking to provide such an account. The enterprise presupposes that the concept of law is a useful cross-cultural and cross-temporal concept, so that there is a distinction between the attributes of law and the attributes of particular legal systems at certain times and places. General theories of law seek to elucidate those features of law that are universal. This universality does not stem from stipulative definitions. Rather, it reflects basic similarities in human nature and in forms of social organizations. The presupposition is twofold: first, that human societies have similar problems, and are likely to generate similar ways of solving them; and second, that it is useful to designate a part of the way that human societies deal with their problems "law," thus distinguishing this part from other ways of solving problems. Therefore, a general theory of law is both a general social theory and a theory about individuating social phenomena and labelling them.

If this enterprise is coherent, statements about features that can be shown to be contingent or non-universal should not be included in general theories of law. Because answers to such questions as how broad rules should be, or how extensive the reasons for which a decision-maker is permitted to deviate from a rule should be, depend necessarily on non-universal factors, they cannot form a part of a general theory of law.³¹

When we look at theories of law, we find that, in fact, most agree on what the universal features of law are. All theorists agree that some social institutions reflect law, that law is designed to guide behavior (it is normative, not descriptive),³² and that law claims legitimate authority (it is normative in a stronger sense of claiming moral authority). Many agree that legal systems reflect the values of "legality." These values include the existence of general norms, which are promulgated and made available, and the resolution of disputes, according to these same norms, by an independent judiciary.³³

There is some debate concerning constraints on the content of law, however. Sometimes, this debate is general and theoretical, as when natural law theorists claim that an atrocious human directive, even if issued by a person with legal authority, should not be regarded as law. Sometimes, the debate is system-dependent, as when the United States Constitution incorporates values that permit moral considerations to be directly relevant to determinations of constitutional validity.

One of the great contributions of modern positivists has been the insistence that legal systems include not only primary duty-imposing rules of conduct (for example, "do not kill, steal, rape"), but also power-conferring rules.³⁴ These rules enable individuals to make enforceable contracts or create legal personalities; the rules also allow individuals to make and change laws, and to create and define the institutions that enforce and apply them, and that perform the other tasks required for a smooth working of the legal system and the social system that it seeks to facilitate. In view of the importance of power-conferring norms to understanding legal orders, general theories of law should include them in their accounts.

Legal theory acknowledges the fact that legal systems provide the framework for the use of political force within a society. Legal theory specifies the types of norms that should be used, and the tasks that should be performed. It is not committed to particular political choices about structures or about the content of particular rules. It is not committed to any position on who should have what powers. General theories of law presuppose that differences in the content of particular rules, even differences in legal cultures and structures (for example, a constitutional democracy, as in the United States, versus a principle of parliamentary sovereignty, as in the United Kingdom) do not, and should not, affect the characterization of these cultures as having law.

There are a few further generalizations that can be made about legal systems. Hart suggested that all legal systems must have a "minimal content of natural law," because a society that does not seek to regulate private use of violence and some right to possession does not give human beings their basic needs.³⁵ Therefore, we should expect that all legal systems will have norms against intentional killing. If we identify basic and universal human problems and persistent causes for disputes, we should expect societies to regulate these in their laws. It is essential to the idea of law that there will be some regulation of private use of violence, and that the state will tend to monopolize the legitimate use of violence. In addition, we can expect all legal systems to seek a balance between giving discretion to accomplish some task, and limiting that discretion to minimize abuse. This expectation presupposes, again, that we can effectively control, at least to some extent, both the broadness of the discretion conferred and the effectiveness of structuring it and supervising it.

A general theory of law becomes enriched when these generalizations are articulated and detailed. These statements about what actually happens in society, however, are directly relevant to such a theory only if they refute, or cast doubt on, the truth or the utility of the account given by it. Beyond this, should we incorporate a more detailed account of adjudication, of the ways that legal decision-makers deal with rules, into legal theory, and into the denning characteristics of law? Some of the more detailed accounts are culture- and system-dependent. Many of them, however, can easily be presented as illustrations of universal features. The question is, therefore, double: First, how general and how skeletal should general jurisprudence be? Second, when does a skeletal description become so incomplete as to be misleading?

No one can deny that an account of legal systems will not be complete without reference to legal institutions, and that courts are a paradigmatic legal institution, performing a vital legal function. Furthermore, no one can deny that a legal system cannot work without intricate decision-making by various officials. The real question is whether a theory of law must include a detailed descriptive theory of adjudication, or whether it can choose, instead, to provide a sketch of courts and their functions as a part of its framework. Often, general legal theorists have done just that. They have discussed the nature of law and its defining characteristics, while making only a few scattered observations about adjudication. By implication, they have asserted that a theory of law could be adequate with a skeletal account of adjudication.

This is the initial challenge posed by Dworkin, who said, in effect, that the skeletal description of adjudication given by Hart's version of legal positivism was wrong, and that this affected positivism's theory of law itself. According to the skeletal description, judges begin the decision-making process by consulting preexisting, pedigreed legal materials. Often, these materials do not determine an answer; in these cases, judges have discretion and must decide on the basis of extra-legal material. Positivists, said Dworkin, characterize law as consisting exclusively of those pedigreed legal materials. Dworkin argued that, to the contrary, judges invoke other materials, notably principles. These materials, Dworkin concluded, should also be seen as law, and consequently, the characterization of law in legal theory should be modified, on the basis of a more accurate account of adjudication.³⁶

Dworkin's attack has been extremely influential. Legal theorists endorsing the skeletal description usually ignored the nature of the extra-legal materials judges invoke to justify their decisions. Positivists, as a whole, did not provide detailed accounts of what actually happened in adjudication. Obviously, they did not deal with the question of what judges should do in such cases as a part of articulating their theory of law. Only the need to respond to such criticisms made many positivists clarify their descriptive and normative theories of adjudication. Most of them would still argue today, however, that the skeletal description of adjudication is accurate, and that it suffices for the purposes of a general theory of the nature of law.³⁷

To some extent, the skeletal account of adjudication is legal theory-dependent. It justifies a decision by invoking law and, only when law is not sufficient, invoking extra-legal materials. The skeletal account presupposes that legal justificatory materials can be identified, and that they are different and differentiated from non-legal materials. This presupposition, at least in the sense required for an account of adjudication, is an extremely weak one. To see this, we have to distinguish between the phenomena of law and legal systems, and labelling. There is no dispute that legal phenomena include easily identified materials such as statutes, decisions of the Supreme Court, and the United States Constitution. These are the materials identified by pedigree. Some will call them, misleadingly, "positivistic law." Dworkin would call them "pre-interpretive law."³⁸ Furthermore, there is no dispute that the process of justifying judicial decisions starts, and often ends, with these materials.³⁹ Pedigreed law is therefore important. It is entitled to a name.

Let us call it, so as not to preempt the issue by using the term "law" itself, "first-stage law."

The skeletal description of adjudication need only say that a defining feature of law and legal systems is that judges and decision-makers "start" to justify their decisions by reference to first-stage law. If this is proven false, all legal theorists should reconsider their positions. If it is true, albeit concededly incomplete, the debate changes to whether the richer account of what really happens should change the account given by legal theory. And, I shall repeat, the problem will not be a problem only for the positivist. It will be a problem for any person offering a general account of the nature of law, without including in this account a detailed account of adjudication.

Again, I know of no theorist or critic who argues that the weak skeletal description is false.⁴⁰ The serious challenge here is to say that it is incomplete, in such important and central ways that the description is misleading. For us to have a better sense of what law is, we must incorporate a richer account of adjudication into the account of the phenomenon of law. To do this requires two steps. First, we must identify general, universal features of adjudication that are not reflected in the skeletal description. This should not be too difficult. Second, we must show that it is important to incorporate these features into our analysis of the concept of law itself.

I am willing to assume that the examples that scholars use from particular legal systems to show that rules may be over-and under-inclusive, and that this problem may create a tension between the requirement of the rule and the requirements of "justice" or the "balance of reasons," reflect universal features of decision-making in law. I will further assume that decision-makers the world over use the same techniques to mitigate those tensions. They invoke principles that "override" the rules; they find another rule that is applicable; or they create fictions to avoid an undesirable resolution of a particular dispute. On the other hand, in all legal systems we may find examples in which judges, when faced with such tensions, prefer the rule. Occasionally, they explicitly discuss the tension, expressly noting that they thought the result to be less than optimal, and providing policy reasons for their choice. At other times, they clothe their opinions in the rhetoric of "legal necessity" or "formalism." They deny (or ignore) the tension between the requirement of the rule and of justice, and deny the availability of other bases for decision.

In other words, I agree that any detailed study of adjudication, in any legal system, will reveal these and other phenomena. Thus, I think that Dworkin is right that adjudication, in all systems, is more than a combination of a mechanical application of specific and determinate rules and "strong" discretion. This, however, is not what the skeletal account said adjudication is. Legal positivism, or the skeletal account, has no problem with acknowledging that judges make decisions like the one in Riggs v. Palmer.⁴¹

So the controversy is not about the obvious reality of legal decision-making. It addresses several related questions. First, what is the best description of what the judges are doing in such decisions as Riggs v. Palmer? If judges inevitably do such things, can we incorporate these truths into our theory of law'? Should they affect our concept of law itself? If the answers to these questions are yes, how should they be incorporated? And will such incorporation show how law is (or is not) a matter of "rules"? In other words, is a general descriptive theory of adjudication possible? If it is possible, is it an important part of theories about law, so that the two are linked in a way that suggests that "law" is necessarily linked only to some kinds of legal decision-making? If so, is this the kind of decision-making that concerns Schauer in his article?

For my present purposes, I do not need to debate whether all, or even most, justificatory materials used by judges should be called "law." Even the realists did not claim that looking exclusively at adjudication gives one an adequate account of what the law is. They were the first to realize that legal rules function in many important ways prior to adjudication, so that the (first-stage) legal materials were an important part of their picture of law,⁴² even if law was conceived as the prediction of what courts would actually do.⁴³ On the other hand, Dworkin's account of law and adjudication, which underemphasizes the distinctness of first-stage law, portrays the judges, ultimately, as appliers or interpreters of preexisting law. One of the benefits of the skeletal description is that it describes judges as having mixed powers of application, creation, and revision of (first-stage) law. These are the reasons, among many others, for preferring an analysis of law that separates first-stage law from post-adjudication law. One way of stressing this separateness is by calling only first-stage law "law."

The decision we make on this question will affect our characterization of law, and the limits of general theories of law. Whatever this decision is, though, a detailed account of the ways in which particular legal systems and particular judges solve the immanent tensions between rules and justice in particular cases should not belong in a general theory of law.⁴⁴ A general descriptive theory of adjudication will distinguish between following rules (deciding settled disputes according to first-stage law) and other kinds of judicial activity. It will also say that while the nature of law dictates that there will be a lot of judicial behavior of the first type, judges will also act in other ways. The account may be more or less detailed and rich. Some of the more detailed elements might be universal to most legal systems, but the significant parts will not be in the nature of general, conceptual claims about legal decision-making. They will be an important contribution to a comparative analysis of cultures, stressing the differences between legal cultures against the common background provided by general theory.

The conclusion is that legal theory, as an enterprise, need not have more than the skeletal description of adjudication. Positivism is a type of legal theory in this sense. As such, it is not committed to any particular description of adjudication (including a description of what judges think they ought to do, which I think is a main factor in what they will ultimately do), or to any recommendation for what judges should do. Positivism, like any other genuine general theory of law,⁴⁵ is consistent with all true descriptions of adjudication. I am not yet prepared to argue that there is no general feature of adjudication that should be incorporated into general legal theory, but I have yet to see a persuasive argument for this view.⁴⁶

Positivism, and legal theories defining law in terms of rules of conduct, are similarly agnostic, to a large extent, about the formal attributes of these norms. Despite the general claim that positivists like "rules,"⁴⁷ they have no position on the preference for rules (as opposed to standards or contexts of simply conferring discretion).⁴⁸ In addition, although all theories of law regard judges as bound by law (leaving open the question  whether they are bound by other things, as well), the theories as such say nothing about the legal question of the content of these rules, including the question whether judges should always be required by the law to follow preexisting law. Most modern positivist theorists accept the phenomenon of judges deciding against the law,⁴⁹ and many of them stress the problems of vagueness and open-texturedness, which create opportunities for judges to (indeed, make them) supplement preexisting law.⁵⁰

If this is the nature of general jurisprudence, its contribution to the question of how rules in fact function, and the extent of their desirability in the law, must be limited. We shall do better to discuss our normative and descriptive problems directly and on their merits, without hoping to gain "answers" from theories of law. Therefore, I agree with Schauer that the essence of law neither dictates nor precludes "ruleness." This conclusion offers enough initial support to my argument that the label "presumptive positivism" is unfortunate. I shall return to this question later, after discussing the role of rules in law, to see whether adopting a given theory of law (positivism) has the same effects as adopting rules, and whether the similarities are sufficiently important to justify the label, after all.

III. The Role of Rules

Now that we have addressed theories of law and positivism, let us discuss the very genuine problems raised by Schauer. They are, as he says, both descriptive and normative.⁵¹ The two are related at least in the sense that much of the debate about the description is based on an intuition that most participants accept the law, as a whole, as legitimate.⁵²

Schauer is obviously right that, before discussing rules and their role, actual or desirable, we must first be clear about what rules are. Unfortunately, his analysis of rules limits his enterprise in ways not required by his assumptions, so I shall start with a few comments on it. I shall then amplify some of the points he makes under the descriptive and normative claims. I believe that there is not much that we can say, in a general way, about the descriptive claim. It is thus not surprising that legal theories have found it difficult to incorporate more detailed accounts of adjudication. It is interesting to see why this is so, by pointing out some of the many difficulties encountered by any attempt at describing adjudication. On the other hand, legal rules do have unique and important features, not shared by all rules of practical reasoning, that may provide some insights into their actual and desirable roles in law. On the morality of rules, I feel that Schauer surrendered to an unfortunate fashion in American legal academia, namely, by quarrelling mostly with those who think that there is more "ruleness" than is justified.⁵³ He makes very good arguments for the position that rules are at times justified.⁵⁴ I am deeply convinced of that, so, for me, whether rules may be good is a non-issue. The more important problem is to see which rules are good, and how it is possible to implement them. I therefore would like to see more work done on the functions that only rules can perform, and on contexts in which rules may be justified, assuming (rather than arguing for) a general justification of rules (or of authority).

A. The Nature and Function of Rules

I agree with Schauer's (unstated) decision not to take a stand on such questions as whether we must conceive of rules as special kinds of reasons for action (as suggested by Joseph Raz⁵⁵), or whether we should see them as providing "only" additional first-order reasons for action.⁵⁶ The differences are genuine and important, but it is more important for our present purposes to get at the points at issue. I therefore believe that we should try to give rules the least preemptive and theory-dependent analysis that we can, assuming that the problems can be stated within the different conceptions, and that their main fea­tures are clear. Accordingly, I shall follow Schauer's analysis in the main, making only those clarifications I deem necessary for the argument.

Rules, Schauer tells us, are generalizations. Prescriptive rules, the subject of his analysis, have two dimensions: the size of the categories, and their opaqueness—the degree to which a rule requires that considerations external to its command be ignored.⁵⁷ The main decisional problem with rules is their inevitable under- or over-inclusiveness. This vice will tend to be more pronounced if the size of the categories is large. The decisional problem is that rules, to be effective, must be entrenched to some degree (or will be entrenched, even if they do not have to be, for a variety of reasons), but this entrenchment may lead to suboptimal decisions. The larger the categories and the stronger the entrenchment, the more "ruleness" we have.

Schauer does not tell us much more about rules (at least in this Symposium). He moves directly to distinguishing between modes of decision-making according to their relationship to rules.⁵⁸ There is a spectrum, which has as its extreme points rule-based decision-making and particularistic decision-making, with at least one important intermediate position of rule-sensitive particularism.⁵⁹

Schauer's analysis captures important features of rules, but we should recall that there is something contingent in his usage, especially against the background of the literature with which he argues. According to Schauer, we have "more" ruleness when the categories are broader.⁶⁰ Broader categories, however, usually resemble "standards" rather than rules. Even if we take broadness only in the sense of range of applicability, it is not clear that size is directly relevant. Large categories will tend to be over-inclusive and less determinative, but small categories may be under-inclusive and more determinative or constraining. Either raises the ruleness problem. So perhaps we should only use the strength of entrenchment as an indication for ruleness.

In any event, the problem arises only where there is discrepancy between the result that the rule requires and the result required by some other estimate of the best thing to do. If we have freedom to determine the answer to the question of what the rule requires in a way that will avoid the conflict, the problem of ruleness does not arise. Large categories may tend to over-include, but they may also provide more opportunities for "internal" interpretations that avoid the conflict altogether. Size on its own, then, does not add much to the likelihood of a problem of ruleness.⁶¹

Second, there is something curious and misleading about the way in which Schauer moves from the definition of rules to modes of decision-making. Schauer directs us not only to the entrenchment of rules, but to seeing them as the opposite of particularistic decision-making (that is, decision-making based on the background justification(s) of the rules). In some cases, this is all there is to it: We require some age limit for eligibility because we assume that this is the age at which people typically may have the qualification, and we prefer a mechanical, one-dimensional, objective rule to a case-by-case examination of (the possibly complex criteria of) eligibility. The same applies, within morality, when we debate having rules within the framework of the same moral theory, say, utilitarianism. There, too, the rule stands opposed to the act-utilitarianistic evaluation of the case.

Some of our decisional problems with rules, however, are not that they are over- or under-inclusive within the same justificatory framework. We object to the rules because they create a requirement that conflicts with another justificatory framework, one that we deem superior to that of the rule. The rule in this case is not only entrenched vis-à-vis the particularistic, all-things-considered judgment, taking into consideration its own background justifications; it is also entrenched vis-à-vis the normative requirement of all other justificatory frameworks. These requirements, in their turn, may be formulated in the form of rules or of all-things-considered judgments. So the entrenchment of rules is not necessarily a matter of ruleness versus non-ruleness. It is a matter of identifying, at the outset, the kinds of reasons that are dispositive, and their weight or status.⁶²

Schauer at times seems to think that, whereas some entrenchment is definitive of rules, its strength may be a matter of degree:⁶³ "Ruleness" will be more manifest when entrenchment is stronger.⁶⁴ Presumably, we can have a spectrum of degrees of entrenchment (keeping to the first-order level of reasons): from the most entrenched (that is, we must follow the rule always, whatever the consequences) to the least entrenched (that is, the rule provides a weak first-order reason for following it). This account, in addition to taking a controversial stand on the nature of rules, creates a problem for Schauer's formulation of his own problem. It is not clear when a decision should be termed "rule-based," because in principle, everything on this spectrum is rule-based. Clearly, this would be a confusing usage. I conclude that it is better to speak not of degrees of ruleness but of the proper attitude to rules, and then moving on the spectrum suggested by Schauer.

Equipped with these clarifications, we may move to the notion of presumptive ruleness.

B. Presumptive Ruleness

Schauer discusses two types of presumptions.⁶⁵ First, the existence of the rule creates a presumption in favor of following the rule: The decision-maker has a duty to follow the rule unless there is a strong reason for not doing so. Second, when there is a rule, one has the liberty, in most cases, not to scrutinize factors irrelevant to the rule's applicability. One is entitled to merely "peek" at, or even ignore, those factors.

Schauer needs the second implication of presumptive rule-ness in order to overcome what he presents as a powerful argument: If a rule merely creates a presumption in its favor, decision-makers always have a duty to decide whether in this case the presumption should be rebutted, and to do that, they must examine all of the other reasons deemed relevant. According to this argument, all cases are hard cases because the rules act not as entrenched guides for action, but as rules of thumb.

A duty to examine all relevant reasons (where "relevant" is determined by the decision-maker's ultimate justificatory system, not by the rule itself or even its background justifications) in all cases does not make all cases hard. It does make all cases time-consuming, in ways that are extremely wasteful.⁶⁶ To see that, we need to distinguish between recipes for identifying the right decisions and recipes for a decision-making procedure. The two are distinct, although they may be interrelated.

"Presumptive ruleness" in the first sense is a description of the right answer to a question governed by a rule. Usually, one should follow the rule. If one wishes to deviate, one must provide (or at least there must be) a justification of a certain strength. It is not enough that, on some balance of reasons, the decision is suboptimal in this case. One can only justify deviation with a strong reason for not following the rule.⁶⁷ If such a strong reason exists, one should not follow the rule. At this stage, I do not want to argue about the morality of this approach to ruleness. I wish only to stress that it is not a definition of what a rule is, but rather a description of a normative approach to rules.⁶⁸

Identification of the right answer does not depend on the depth of the examination the decision-maker made, on the comprehensiveness of her analysis of various reasons, or on the answer's validity. A decision-maker may have had a hunch that proved right and that she did justify persuasively (she may have given a formalistic or essentialistic opinion, consciously or unconsciously hiding the true grounds for her decision), or she may have listed the relevant reasons with great care, in a long opinion, only to be wrong.

The second sense of presumptiveness, that of "peeking," concerns what a decision-maker should do before she decides. Here, it is not clear whether, according to Schauer, the rule creates another presumption, that is, that only the factors enumerated in the rule itself are relevant; whether the practice of following rules justifies disregard of such factors (unless something attracts our attention to the possibility that such factors may be relevant); or whether there is a fully-entrenched rule that non-rule factors should not be considered unless something or someone "shouts."

Does the attitude of "substantive" presumptive ruleness, though, necessarily require that all other factors will always be examined? To some extent, it does. If this is the adopted attitude, any decision to follow the rule should be read as including a statement that the decision-maker thought that the rule should be followed. Decision-makers should be made aware of this fact. The important question, however, is what kind of investigations or examinations decision-makers must make to reach this judgment. The normative answer may be that life experience suggests that the costs of a comprehensive search and analysis, in the absence of something suggesting that such a search is called for, are greater than their contribution to the right decision.⁶⁹

In many contexts, including in many cases of legal decision-making, the need to reach a decision quickly is part of our notion of justice. A long delayed decision puts burdens on the litigants, which burdens are desirable to avoid. So the balance of reasons cannot always be for a comprehensive deliberation seeking to make extra certain that the decision that seems right initially is indeed the right one. Once the risk of error is minimized, it is mandatory to accept the finality of deliberation and to reach a decision, even though a deeper examination would have occasionally revealed a better decision.⁷⁰

This feature is not unique to law, but it is often present in law and adjudication. It is thus a suitable point with which to move to the question of whether the nature of law can shed some light on the desiderata of legal decision-making.

C. The Uniqueness of Law

As Schauer keeps reminding us, most of the decision-making problems that he raises are not unique to law. Moral theorists often debate the relative merits of the application of rules of law and case-by-case particularism.⁷¹ Moral theorists also raise the problem of ultimate versus intermediate principles. There are also debates both within a moral theory and between different moral theories; in the latter, one of the important differences may be precisely the relevance of some factors of practical importance.⁷² Is there anything that is unique to law that might affect the descriptive and normative claims about the role of rules (or entrenched norms) ?

This is where legal theory can help us, after all—in two ways. First, the very enterprise of legal theory is to distinguish between law on the one hand and other facets of human life, especially morality or politics, on the other. So legal theory, as an enterprise assumes that law has certain autonomy. The features that may account for this autonomy may be relevant to the role and the justification of adopting rules in the law. Second, the features that theories of law identify as relevant, and the general things that theories of law tell us about law and its relationships to other parts of social life, may help us see reasons for rules that may not exist to the same degree in other decision-making contexts.

All agree that a distinctive feature of law is its institutional character: It confers powers on organs to make law, change laws, enforce them, and apply them; it also confers many powers to act (for example, to issue licenses or supervise activities) that do not amount to lawmaking or to law enforcement. Often, when we want to confer powers, we also want to minimize their abuse. One of the ways to do that is by limiting power; hence, policemen cannot detain people beyond a very short time without judicial approval. As Schauer insists, limiting powers may be done in a combination of two ways: limiting the jurisdiction of an organization, or structuring the types of decisions an organization may make within its powers. At least in some circumstances, we want these structures to be specific, concrete, and clear—and extremely entrenched. We do not want police officers or Central Intelligence Agency (CIA) agents deciding according to their own judgmen