Rule

Rule

By “rule” Anthony D’Amato (in his article “Legal Uncertainty”, 71 Cal. L. Rev. 1 (1983)) means
“not only a particular rule of law, such as a subsection of the Internal Revenue Code or the Rule in Shelley’s Case, but also any principle, policy, theory, or other legal argument that can be cited by a party or potential party to a case as a reason why the judge or other official decision-maker should decide the case in favor of that party.

To attempt to be precise concerning the meaning of “rule” may lead to greater errors of
imprecision than to treat the term loosely. In particular, many writers distinguish between rules
and standards, or rules and principles. But these terms are not at all clear-cut. A rule that applies only obliquely to Jack’s conduct may operate in the same fashion as does a “principle” that applies more directly; in both cases the judge may feel “free” to decide against the rule or standard.”

Although the above “is a broad definition, it does not include all conceivable arguments. For example, the argument “God told me to do it” will not, in the American legal system, “count” as an argument in favor of the arsonist or terrorist. Or consider the American legal realist claim that extralegal factors may be crucial in the judge’s decisionmaking.”

“There is less possibility of accurate prediction of what courts will do than the traditional
rules would lead us to suppose (and what possibility there is must be found in good measure
outside these same traditional rules.)” K. LLEWELLYN, JURISPRUDENCE 60-61 (1962).

Thus, when D’Amato say “that the plaintiff is relying on a rule in a given case,” he means “that she has selected out of all the legal arguments available to her the most favorable rule of law, principle, policy, or theory’ that “counts” in the legal system as a potential reason for awarding her the decision.’

The notion of what “counts” in a legal system in support of an argument can be taken in
the positivist sense of a predetermined “legal” argument (a rule traceable to a legal source). See
R. DWORKIN, TAKING RIGHTS SERIOUSLY 39-45, 106-23 (1977); D’Amato, What “Counts” as
Law? in LAWMAKING IN THE GLOBAL COMMUNITY 83-107 (N. Onuf ed. 1982). The positivist
theory runs into difficulties, for any rule or theory that preexists in legal materials must first have been “born”; and yet when it first arose, it could not by definition have been found in any prior legal materials. For an analysis of how positivist theories fail to account for the first use of a legal rule or argument, and for a suggestion as to how the problem can be resolved in at least one legal sphere, see A. D’Amato, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 8-9, 47-72, 74-87 (1971). ”

D’Amato is “not restricting the use of what “counts” legally to prior legal materials, but rather am using the far more extensive criterion of what has a good chance of convincing a judge to decide in favor of the person making the argument. Such a broad view of “law” is defended in Fuller, Human Interaction and the Law, in THE PRINCIPLES OF SOCIAL ORDER 211-46 (K. Winston ed. 1981)

When D’Amato argue that rules unravel over time, he means that, using any of these extended definitions of the term, a “rule” becomes increasingly vague, inapplicable, remote, ambiguous,
or exception-ridden. This can happen in one of two ways.

First, rules may become more uncertain “on the books.” For example, a statute that seemed to mean one thing may be construed by a court to mean something different. Although the court will usually say that it is clarifying the statute, it does not always do so. It may create an exception, an exemption, a privilege; it might construe the rule narrowly to avoid constitutional problems, or broadly to give effect to an unnoticed legislative intent buried in the legislative history. The court’s decision becomes a part of the meaning of the rule, so that the rule now
becomes more complex-it is a statute plus a judicial decision. The more complex rule may invite further adjudication and more inventive subsequent constructions by courts.

The “law on the books” may also become increasingly uncertain due to the legislative process itself. Persons disadvantaged by existing rules may lobby to get new statutes passed that create exceptions, exemptions, or privileges, or to get “special legislation” of other kinds.
These also render the law more complex and convoluted: witness the innumerable tax provisions and regulations, many enacted at the behest of special interest groups, that clog up the Internal Revenue Code and sometimes render it internally inconsistent.

The second way rules may become more uncertain is in their application. Persons “disadvantaged” by existing rules may modify their activity so that it falls in the cracks between existing rules or comes more ambiguously within any given rule. Thus, although the rules “on
the books” remain unchanged, if people change their conduct so that existing rules less clearly apply to what they do, we can say that overall the law has become less certain.


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