The dilemma of rules

Serious rules are necessary for effective settlement of moral and practi­cal controversy. At the same time, serious rules generate a dilemma. We have discussed this dilemma at length elsewhere; our present purposes require only a brief summary (Alexander and Sherwin 2001; Schauer 1991a).

If a rule is to settle doubt and controversy, it cannot simply track the values it is designed to promote. Instead, it must simplify moral and practical problems and translate these complex and controversial con­siderations into relatively simple and uncontroversial terms. As a con­sequence, cases will arise in which the rule dictates a result that differs from what its motivating reasons require (Schauer 1991a). The rule ‘No wild animals within one thousand feet of a private residence' will prevent some animal lovers from rescuing circus animals, or result in their punishment, even when the animal in question is highly unlikely to cause harm.

Nevertheless, from the point of view of the rule-making authority, as well as the community it governs, the best form of settlement may be a blunt per se rule: no wild animals. The reason is that unconstrained decision-makers make mistakes. Animal owners may make more errors, or errors of greater magnitude, in assessing potential harm case by case than they would make by following the rule consistently. If so, then it is rational and morally correct for the authority to issue a seri­ous rule and insist on full compliance.

The dilemma of serious rules arises when one shifts from the author­ity's perspective to the perspective of individuals who are governed by the rules, the rule subjects. If a wild animal owner believes that his animal is unlikely to cause harm and needs a home, he may believe that following the rule is not the morally correct course of action. Setting aside for the moment the possibility of sanctions for disobeying the rule, it will not be rational for this owner to follow it (Hurd 1991; Sherwin 2018; Alexander and Sherwin 2001).^[8]

Yet, if we return to the long-term perspective of the authority, the matter looks different because the animal owner may be wrong.

We do not believe this gap can be closed, at least as long as rule sub­jects act rationally. Rule subjects might adopt the attitude Frederick Schauer calls ‘rule-sensitive particularism', taking into account the impact that failure to comply would have on the settlement values of the rule (including social peace, coordination, expertise, and decision­making efficiency) (Schauer 1991a; 1991b). Rule-sensitive particular­ism is rational, and may be required as a matter of correct reason. But it will not close the gap between what is rational for the authority to do and what is rational for rule subjects to do as long as some rule sub­jects may conclude in some cases that the reasons for violating rules outweigh all the reasons that motivate the rule, including the value of settlement; and some of those rule subjects will be wrong. Indeed, rule-sensitive particularism is always threatened with unraveling and becoming nothing more than case-by-case, all-things-considered par­ticularism. For in a community of rule-sensitive particularists, every­one will soon realize that no one is treating rules as serious rules. As a result, the settlement value of rules will be reduced, which in turn would mean less expected compliance with rules and therefore less settlement value, and so on until the rules collapse completely as seri­ous rules.

Alternatively, rule subjects might resolve to follow rules unless the action prescribed by a rule is quite clearly wrong in a particular case - an attitude Schauer describes as ‘presumptive positivism' (Schauer 1991a).

The rule-making authority can attempt to close the gap by providing for sanctions against those who violate rules. Assuming that violators are uniformly punished, and that avoiding punishment counts as a reason for action, then in terms of rationality, if not morality, enforce­ment may close the gap between rule-makers and actors deciding whether to obey the rules (see Postema 1991). However, a secondary gap arises when judges are asked to impose sanctions on subjects who have disobeyed the rule but have done what the judge perceives (or believes the subjects perceived) to be right in the particular circum­stances. In such a case, it is morally and rationally problematic for the judge to enforce the rules (see Hurd 1991; Sartorius 1997; Hurd 1992). Moreover, to the extent that this secondary gap between rule-maker and judges prevents judges from fully enforcing the rule, the primary gap between rule-maker and subjects recurs (Alexander and Sherwin 2001).

In fact, people do follow rules. They comply with rules they have designed for themselves and with rules imposed by authorities they recognize as legitimate, without assessing in each case the reasons for and against compliance. We suspect that the explanation for this lies in habit, socialization, and an element of self-deception. In our present inquiry into legal reasoning, we assume that some such combination of psychological mechanisms allows subjects and judges to follow and enforce rules in most cases. Nevertheless, the dilemma of serious rules remains in the background as we discuss deduction of legal conclu­sions from rules.

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