The Rule of Rules: Morality, Rules, and the Dilemmas of Law.

• Author: Alces, Peter A.
• Position: Book Review

THE RULE OF RULES: MORALITY, RULES, & THE DILEMMAS OF LAW. By Larry Alexander and Emily Sherwin. Durham: Duke University Press. 2001. Pp. viii, 279. $45.95.

Analytical jurisprudence (1) depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory--indeed, before we can even know what those questions are--we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That is the thesis of The Rule of Rules ("Rules").

Professors Larry Alexander and Emily Sherwin of the University of San Diego School of Law have written what would be (and what may be) a prolegomenon. (2) They use the rules-morality duality to reveal a cleavage in the Law that could intimate the ultimate moral impossibility of Law. So their critique is comprehensive. The cleavage, or "gap," they identify is a function of rules' operation as the bases of authoritative settlement and it is authoritative settlement that responds to what a primitive, prelegal, community lacks. (3)

An account of Rules's contribution must engage the authors' conception of the rules-morality tension because that tension provides the lens through which the authors build a jurisprudence, or at least a jurisprudential perspective. This Review considers the cogency of their conclusions if they have posited the rules-morality tension accurately and asks some of the questions required to determine whether their formulation can support the weight they would impose on it.

Part I of this Review offers a critical synopsis of Rules, summarily presenting the book's argument and challenging particular elaborations and applications of the thesis. Part If, more fundamentally, considers the nature of the morality metric. The question is not what particular moral system--Natural Law, (4) categorical imperative, (5) or consequentialist, (6) for example--best supports rules particularly or generally, but, instead, how must we conceive of the nature of the moral inquiry, and the relationship between morality and rules, in order to reach conclusions about the incidents of Law and legal analysis.

This Review argues that we need to formulate the nature of the moral inquiry before we can either appraise the fit between rules and morality or posit the discontinuity of rules and morality and the concomitant impossibility of Law. Rules, then, are ultimately unruly because when we understand rules as an elaboration of morality, we understand rules as relying on a foundation--morality--the substantiality of which analytical jurisprudence has not yet devised the means to appraise or even to take sufficient stock of.

1. RULES IN CONTEXT

   H.L.A. Hart recognized the challenge confronting the next analytic jurisprude in his monumental The Concept of Law: "I hope that ]the form of presentation pursued in Concept] may discourage the belief that a book on legal theory is primarily a book from which one learns what other books contain." (7) Though the contemporary genre--analytical jurisprudence--can claim a provenance tracing at least back to Austin, (8) it would be inaccurate to suggest that the analytical inquiry pursued by Alexander and Sherwin is merely responsive. While the authors do present a thesis dependent on the terms of their response to positivist discoveries in analytical jurisprudence, they also formulate the consequences for broader, jurisprudential conclusions and recognize the significance of those contributions. A brief summary of the path of the book's argument accommodates focus on the foundation of the authors' thesis.

   Appreciated as constraints on reasoning, rules circumscribe the operation of Reason in ways that facilitate corporate and coordinated action, though imperfectly:

   The result is a practical paradox. Reason requires resort to Will, but Will can never capture Reason. The paradox lies at the heart of law. It surfaces not only in the perennial clash of jurisprudential titans, natural law (Reason) and legal positivism (Will), but also in puzzlings over interpretation, precedent, legal reasoning, and many other jurisprudential matters, as well as in controversies about legal doctrine, which are replete with synchronic and diachronic clashes of reason and Will. (p. 8) From this premise, Alexander and Sherwin proceed to describe the role of rules in authoritative settlement. The first part of Rules, "The Circumstance of Law," describes how rules provide the means for a community to settle authoritatively moral disagreements. Once established, the rules "supplant the reasons upon which they are based." (9)

   In Chapter One, the authors survey the benefits of such authoritative settlement and reveal the problems it may create. Rules are simultaneously the means of a community's achieving authoritative settlement and the source of resulting complications. In the course of reconciling authoritative settlement and the circumstance of Law, Alexander and Sherwin consider the contributions of Hart and reflect on the fit between their conclusions and Hart's observations. Ultimately, they conclude, "although Hart does identify problems that would plague his imagined primitive community, these problems are all aspects of a single problem, namely, the absence of authoritative settlement by means of rules" (p. 24).

   Chapter Two considers in greater depth the nature of authoritative rules that determine the circumstance of Law in the community, and, in so doing, distinguishes among the different types of rules that inform behavior and establish the coordination of normative considerations. Alexander and Sherwin distinguish "rules" from "norms" and "standards" in terms that accommodate a taxonomy of authoritative settlement. For example: "The quality that identifies a rule and distinguishes it from a standard is the quality of determinateness. A norm becomes a rule when most people understand it in a similar way." (10) Those premises support the authors' conclusions regarding the role of rules in terms of coordination, expertise, and efficiency. At this point, the authors examine the "built-in imperfection of rules" and take account of Frederick Schauer's description of rules as "entrenched generalizations." (11)

   In their third chapter, Alexander and Sherwin discuss the "Hierarchies of Rules." They investigate the moral function of rules in terms of the authoritative settlement requisite, and find, "the morally best rules on which agreement can be obtained are in some sense the morally best rules" (p. 42). They then treat what they term rule "pathologies"--misinterpretation, revolution, and fragmentation.

   Part II concerns "Acting Under Rules." Chapters Four and Five examine the dilemma of the rational moral actor confronted with a rule whose prescription is inconsistent with the actor's appraisal of the circumstance she confronts.

   In Chapter Four, the authors treat the "gap" between the lawgiver's (Lex's) reasons for promulgating a rule and the subject's reasons for action. The gap is a persistent irritant that focuses the inquiry on the role of rules and challenges jurisprudential perspectives that endeavor to take account of the rules' operation. This portion of the study affords Alexander and Sherwin an opportunity to confront the conclusions of Schauer and others regarding the responsibility of the moral actor to afford rules some, albeit not absolute, deference. Rules function, we are reminded, "to translate moral principles into a set of directions that can be understood by people who previously disagreed or were uncertain about the meaning of those principles" (p. 54).

   So the moral failure of rules, then, may merely be the failure of information or calculation. Indeed, another way to depict the rules-morality tension would be to understand morality as fully elaborated guides to action. A sense of rules as conceptions emerges; and conceptions rely, perhaps tautologically, on concepts that operate at a level of abstraction. It is a tautology to assert that the abstraction cleavage may be discontinuous with the constituents of fit between rules and morality; there is morality in the cleavage.

   Chapter Five formulates the interpretation of rules and investigates at length the fit between the lawgiver's intentions and the subject's disposition to order her affairs in a manner consistent with those intentions. That requires, of course, a means to discern the lawgiver's intent and to appraise the subject's actions. Here the authors respond to Lawrence Lessig's analysis of these issues (12) and to the conclusions of Saul Kripke on Ludwig Wittgenstein. (13)

   Part III of Rules surveys "Issues of Legal Reasoning" and begins in Chapter Six with an investigation of "Reasoning by Analogy." The authors offer a "qualified" defense of analogical reasoning in terms of the competence of different actors to make rules and conclude, "if analogical reasoning is justified at all, it is justified on second-best grounds, much like those that support Lex's use of rules" (p. 134). They find, "[t]here is nothing in the nature of prior decisions to ensure that analogical reasoning based on those decisions will have advantages of the kind associated with rules" (p. 131).

   Chapter Seven addresses "Precedent," and proceeds from the judgment that "[t]he authority of precedents becomes important only when judges think the precedents are wrong" (p. 137). That perspective supports the authors' analysis of three models of precedent (the "Natural," (14) "Rule," (15) and "Result" (16) models) and, ultimately, the authors' despair that many of the uses of precedent as a means to determine the scope of rules are deficient. The analysis...