Settlement

The need for legal reasoning derives ultimately from a community's need to settle what its members must do (Alexander and Sherwin 2001). Even in a community whose members agree on moral values at a fairly high level of generality and accept these values as guides for their own action, individuals may differ about the specific implica­tions of accepted values or be uncertain about the best ways to realize them (Kavka 1995).

To be successful, settlement must not be arbitrary, but instead must be based on reasoning, deliberation about reasons for the choice ultimately made.¹ The members of our imagined community have not agreed simply to settle matters; they have chosen an authority or authorities to translate the values that serve as reasons for action within the community into solutions to practical problems.^{[2] [3] [4] Given the flaws of human reasoning and the limits of language, the solutions the authorities choose may not be morally ideal. But, because the authori­ties' task is to settle what the community's values require in practice, their conclusions must be susceptible to justificatory argument.}

If the authorities chosen to settle controversies and uncertainties could be on the scene whenever a dispute or uncertainty arose, settlement would require no more than a series of decisions about what outcome is best in each instance, all things considered. Normally, however, it is neither practical nor desirable for authorities to be constantly on hand; therefore, the community needs a form of settlement that can guide future decision-making.

A rule, for this purpose, is a general norm that sets out the course of action individual actors should follow in cases that fall within the terms of the rule. To settle potential controversies effectively, the rule must prescribe, in understandable and relatively uncontroversial terms, a certain response to a certain range of factual circumstances (Alexander and Sherwin 2001; Schauer 1991a). It must claim to prescribe, and be understood as prescribing, what all actors subject to the rule should do in all cases it covers. It must also require those subject to it to respond as prescribed without considering what action would best serve the reasons or values that lie behind the rule. We call rules of this kind ‘serious rules', as distinguished from advisory rules or ‘rules of thumb' that purport to provide useful guides to action but not to dictate action (Alexander and Sherwin 2001; Schauer 1991a).

For example, suppose that a rule-making authority enacts the rule: ‘No one shall keep a wild animal within one thousand feet of a private residence'.^[6] The motivating reason for this rule may be to protect the safety and peace of mind of the inhabitants of residential neighbor­hoods. At a deeper level, the rule may reflect the assumptions that human interests rank higher than the interests of wild animals and that the liberty of property owners to use their property as they wish is subject to a duty not to inflict harm on others. In some situations, the rationale for the rule may not apply with its ordinary force; the wild animal may be a gentle, declawed former circus animal, kept in a sturdy double cage. But the rule makes no exception: its upshot is that wild animal owners must keep their animals elsewhere, irrespective of how the underlying purposes of the rule apply to their particular circumstances (Alexander and Sherwin 1994). Rule subjects therefore need not consult the rule's purposes in order to determine what the rule requires of them.

We use the term ‘rule' in a fairly inclusive way (Schauer 1991a). The rules we are interested in share several characteristics. They are pos­ited by human beings; in this respect, they differ from non-posited moral principles. Their prescriptions are serious in the manner we have just described. Aside from these necessary characteristics, the rules we are concerned with may be quite general or fairly specific, so long as they are general enough to settle some range of future cases. They may be posited in canonical form or implicit in material such as judicial opinions, as long as they are traceable to human decision­making and determinate enough to guide action without the need for further assessment of the reasons that motivate them.^[7]

Communities designate authorities to make rules because and to the extent that they deem authoritative settlement to be superior to indi­vidual decision-making. The preference for settlement derives from the moral costs of controversy and uncertainty and from the ability of the chosen authorities to design rules that further the community's values and ends. In particular, settlement avoids strife; it solves coordination problems that arise when one person's reasons for action depend on the actions of others; and it limits the need for costly delib­eration (Alexander and Sherwin 2001). If rule-making authorities are wiser than most members of the community, or have more delibera­tive resources at their command, authoritative settlement is also more likely than unconstrained reasoning to resolve controversy in morally desirable ways (Campbell 1996).

We emphasize that authoritative rules address the problems of con­troversy, uncertainty, and lack of coordination; not the problem of misbehavior. Realistically, disputes will occur because some individ­uals reject prevailing values and refuse to abide by moral constraints.

We set aside disputes of this kind because authoritative settlement is necessary even in the most auspicious social circumstances.

Conversely, doubt and disagreement make rules essential even when all members of the community agree about values. Everyone may agree that private property is morally justified and socially valuable, that owners should have the greatest possible freedom to use and enjoy their property that is compatible with the interests of others, and that human safety is of great importance, and yet differ about whether keeping a wild animal interferes unreasonably with the enjoyment of surrounding land. This type of local disagreement provides the motive and justification for authoritative rules (Alexander and Sherwin 2001).

In a well-developed legal system, rule-making authority will not be confined to a single official. The community may designate different rule-makers or rule-making bodies for different domains, and des­ignated rule-makers may in turn establish secondary rules that vest power in other sources (Hart 1961). Delegation of rule-making power from one authority to another may also be implicit in institutional arrangements. For example, when a primary rule-maker designates others to interpret rules when disputes arise over their application, the interpreter has power, at least presumptively, to supplement the rules when they prove to be incomplete or indeterminate (Hart 1961). The interpreter then becomes a rule-maker in its own right. An implicit delegation of rule-making authority also occurs when the primary rule­maker chooses to promulgate a standard - that is, a vague prescription that is likely to be indeterminate in many of its applications - rather than a determinate rule of conduct (Kaplow 1992; Sunstein 1996). In this case, adjudicators act as rule-makers, rulifying the standard for purposes of the particular case. We will say more about standards in later sections.

Alternatively, official rule-makers may decline to issue a prescription in any form, leaving individual actors free to choose their own courses of action within a certain domain. Or, if pluralism in interpretation of values and ends appears more important than settlement, the com­munity may decline to confer rule-making authority within a domain. Even within an unregulated domain, however, rules may guide action if individuals formulate general propositions to govern their own delib­erations. In situations of this kind, individual actors will be acting as their own rule-makers (Fumerton 1990).

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