Problems with Rules

Many of the most difficult issues in law involve the choice between rules and rulelessness in cases where both seem unacceptable. The principal goal of this Article is to point the way toward a more refined understanding of the ideal of the rule of law, one that sees a degree of particularity, and a degree of law-making at the point of application, as important parts of that ideal. The Article defends a form of casuistry and describes the potentially democratic foundations of the casuistical enterprise in law. It begins by describing the distinctive advantages of rules and law via rules, especially as a means for providing a consensus on what the law is from people who disagree on much else. It also discusses three attacks on decisions according to rules: the view that rules are excessively conservative; the view that controversial political and moral claims always play a role in the interpretation of rules, and thus that rules are not what they appear to be; and the view that rules are obtuse because they are too crude to cover diverse human affairs, and because judges should not decide cases without closely inspecting the details of disputes. The Article suggests several ways to avoid the dilemmas posed by rules and rulelessness: (a) a presumption in favor of privately adaptable rules, that is, rules that allocate entitlements without specifying outcomes, in an effort to promote goals associated with free markets; (b) a recognition of legitimate rule revision, in which public officials and private citizens are allowed to soften the hard edges of rules; and (c) highly contextualized assessments of the virtues and pathologies of both options, in an effort to promote democratic goals of responsiveness and open participation.