Legal Rules in Practice

In the Midst of Law's Life

Baudouin Dupret, Julie Colemans, Max Travers, Baudouin Dupret, Julie Colemans, Max Travers

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367495930
• eBook ISBN: 9781000335125
• Edition: 1
• Topic: Law
• Subtopic: Construction Law
• Index: Law

Understanding legal rules not as determinants of behavior but as points of reference for conduct, this volume considers the ways in which rules are invoked, referred to, interpreted, put forward or blurred. It also asks how both legal practitioners and lay participants conceive of and participate in the construction of facts and rules, and thus, through decisions, defenses, pleas, files, evidence, interviews and documents, actively participate in law's life. With attention to the formulation of notions such as person, evidence, intention, cause and responsibility in the course of legal practices, Legal Rules in Practice provides the outlines of a praxiological anthropology of law – an anthropology that focuses on words, concepts and reasoning as actively used to solve conflicts with the help of legal rules. As such, it will appeal to sociologists, anthropologists and scholars of law with interests in ethnomethodology, rule-based conduct and practical reasoning.

1 Ruleness

Frederick Schauer

On the idea of a regulative rule

A half-century ago, the philosopher John Searle offered an enduring distinction between two types of rules (Searle, 1969, pp. 33–42).¹ One type he labeled constitutive, and it is the type of rule especially familiar in the context of rule-defined and rule-bounded enterprises such as sports and games. In such enterprises, there are rules that define – or constitute – certain activities having specified consequences. In football, for example, the rules of the sport tell us what is necessary for some physical action to count as a goal, and thus the rules can be said to constitute the very idea of a goal. Without the rules of football, using one’s foot to propel a leather or rubber sphere into a net between two posts is just that, and nothing more, but once we are playing football – within the enterprise of football – the exact same physical actions now count as a goal.

The basic idea of a constitutive rule is most easily grasped in those instances in which the label for what the behaviors constitute has no meaning outside of the context and contours of the game. So although there is perhaps some loose relationship between the idea of a goal in football and the ordinary language meaning of having a goal in everyday life, the same does not apply to castling in chess, to a try in rugby, or to a trick in contract bridge. The rules of chess constitute the activity of castling, and without the rules of chess there would be no castling at all. And so too with tries in rugby, tricks in bridge, and countless other rule-constituted activities in everyday life as well as in games.² To prorogue a legislature is to suspend its session, but without the institution of legislatures there would be no prorogation at all.

Searle offered the idea of such constitutive rules by way of contrast with the perhaps more familiar kind of rule – the regulative rule. Consider the typical motorway speed limit, 120 km/hour, for example. Although it is not possible to castle without the enterprise of chess and without the constitutive rules that are part of that game, the same cannot be said of high-speed driving. Even were there no speed limits, it would be possible to drive at 120 km/hour, or for that matter at 200 km/hour, and thus the 120 km/hour rule regulates pre-existing (in the conceptual and not the temporal sense) behavior. Without the rules of chess there could be no castling, but without the rules of driving (the speed limit) there could still be driving in excess of 120 km/hour. Regulative rules thus do not create – or constitute – forms of behavior, but instead only regulate conceptually antecedently existing behavior in ways that constitutive rules do not.

The very existence and idea of regulative rules, however, both entails and presupposes that there can be unregulated behavior. At least as to speed limits, for example, the German autobahns are unregulated domains, leaving a certain form of antecedently possible behavior untouched by external rules. Indeed, and even more commonly, the same absence of regulative rules holds with respect to many of our personal and everyday activities. Some people, for example, put on both socks before they put on either of their shoes, while others put on one sock and then one shoe and then the other sock and the other shoe. But there is no rule in any country that I know of that tells people which of these options to choose.³ And accordingly, again, putting on one’s socks and shoes can be understood as an unregulated or rule-free form of behavior.⁴

Although it might be difficult even to imagine anything understood as a society or culture without at least some constitutive rules, the idea of decision-making without constraint by regulative rules turns out to be well-represented in the theoretical literature as well as in the kinds of everyday activities I have just described. Consider, to take a particularly prominent example, Max Weber’s almost certainly erroneous description of so-called q’adi (or khadi) justice in Islamic law (Weber 1954, p. 351).⁵ Putting aside the inaccuracy of locating the idea within Islamic law, Weber posited, as an ideal type, a decision-making regime in which the decision-makers make decisions entirely on the basis of their own rule-free reactions to particular events and particular controversies. Niklas Luhmann (1985, p. 15) describes Weber’s picture as depicting “personal arbitrariness,” and for Weber this rule-free approach to decision-making marks the earliest stage of legal development, with progressively increasing material rationality and similarly increasing rule-based formality marking the development of what he took to be true legality.⁶ And although it is easy to mock Weber’s image of khadi justice as a caricature not only of Islamic law but also of pretty much any modern decision-making environment, it is worth noting that Weber’s picture of rule-free decision-making bears interesting similarities to the modern perspective in moral philosophy known as particularism.⁷ And perhaps even more relevantly here, it is worthwhile noting the heavily particularized (as well as psychologized) description of judicial decision-making most commonly attributed to Jerome Frank’s version of American Legal Realism (Frank, 1930).⁸

Even if extreme particularism, whether from Weber or Dancy or Frank or anyone else, is difficult to fathom, at least today, its theoretical existence serves to remind us that regulative rules are best understood not as necessary or inevitable, but instead as marking a contingent specific approach to decision-making. Indeed, such contingency of rule-based decision-making becomes even clearer once we look at those forms of decision-making that may not be particularistic all the way down, but nevertheless seek to apply one and only one overarching goal or standard or criterion directly to any specific event or decision-making situation. For the act-utilitarian, for example, the correct decision in every single instance is the decision that will maximize utility, however utility (or welfare) is to be measured (Smart, 1956, 1973; Bayles, 1968; Mulgan et al., 2014). All sophisticated act-utilitarians, however, recognize that such case-by-case optimization is beyond the human capacities for thought and decision-making. As a result, most act-utilitarians recognize the importance in some way of having and using rules of thumb.⁹ Such rules advise the decision-maker on how to decide cases of a certain type but without performing a full utility calculation for each decision. What makes such rules rules of thumb, however, and not rules simpliciter, is that for the rule-of-thumb-assisted act-utilitarian decision-maker the result indicated by applying the rule of thumb can be rejected if the decision-maker has good reason to believe that the rule-of-thumb-indicated result will not on this occasion maximize utility (Smart 1956, 1973; Bayles, 1968).

By contrast, so-called rule-utilitarians have a more robust conception of rule-based decision-making.¹⁰ For most rule-utilitarians, decisions should be made according to the rule whose following will produce the greatest aggregate utility when followed over time or when followed by an entire population or some relevant subset thereof (Alexander, 1985, pp. 315–332). The rule-utilitarian rejects the “mere” rule of thumb approach because she understands that various cognitive or decisional impairments will produce mistakes for the decision-maker who attempts to maximize utility in the individual case, whether she does so by direct utility calculation or even by applying rules of thumb subject to defeat when the rule of thumb produces something other than the utility-maximizing outcome. It is better to accept some number of mistakes, the rule-utilitarian believes, than to endure an even greater number of mistakes by allowing mistake-prone particularistic decision-makers to attempt to maximize utility in every particular case.

Of rules and reasons

The distinction between act- and rule-utilitarianism allows us, utilitarianism (or even consequentialism more broadly) itself apart, to distinguish act-based from rule-based decision-making.¹¹ Act-based decision-making seeks to apply whatever reasons, goals, or principles exist in some decision-making environment to particular instances without the mediation of rules. By contrast, rule-based decision-making, even if ultimately based on exactly the same reasons, goals, or principles, does not apply those reasons, goals, or principles directly to the matter at hand, but applies the rules thought to optimize the pursuit of such reasons, goals, or principles across time and across instances, but without any direct recourse to the reasons, goals, or principles themselves in making particular decisions. A rule-based approach to speed limits, for example, even if ultimately based on the goal of maximizing highway safety, would instruct its enforcers and adjudicators (and, a fortiori, drivers) not to attempt to determine whether some motorist was or was not driving safely, but only to determine whether that motorist did or did not exceed the posted speed limit rule.

The safe driver who is driving under safe conditions, but who is nevertheless exceeding the speed limit – the rule – can be used to illustrate the basic issue. Although totally rule-free decision-making environments are somewhere between rare and non-existent, the central question in any decision-making environment possessing rules is about just how those rules will be treated by their subjects and, more importantly, how the rules will be treated by those who interpret, apply, and enforce the rules. And at this point in the analysis we can posit two extremes. At one extreme, or pole, a rule would be transparent to its background justification – the ratio legis, as it is sometimes put – as with the example of safe driving that still violates the speed limit rule. And if the rule is totally transparent to its background justification, then such safe driving that exceeded the speed limit would not ultimately be considered a rule violation because the justification behind the rule was not violated. At an even greater extreme of transparency, the rules would be transparent even to the best all-things-considered decision. The rules would be treated as a mere rule of thumb, to be discarded when they failed to produce the best result on a particular occasion, or, in the weaker version, when they did not produce the result that would be produced by applying the rule’s background justification to the particular act or event. At this pole, all of the rules that exist in a decision-making environment are treated by decision-makers, and even by rule-subjects, as “mere” rules of thumb. And thus the one extreme is the one in which there are rules, but the rules carry no weight in themselves, making them defeasible when...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Introduction: legal rules in practice: an exploration into law’s life
• 1 Ruleness
• Part 1 Ruleness and its relativity
• Part 2 Materiality, artifactuality and idiosyncrasy of legal practices
• Part 3 Meaning and emotions in legal interpretation
• Index