Are there any rules?

Journal of Ethics

Volumn 5, Issue 3, 2001, Pages 199-219

  Endicott, Timothy ^a  

^a BALLIOL COLLEGE   (United Kingdom)

Author keywords

Controversy; Disagreement; Indeterminacy; Legal validity; Principles; Rules; Social rules

Indexed keywords

EID: 77950045128     PISSN: 13824554     EISSN: 15728609     Source Type: Journal    
DOI: 10.1023/a:1012703223987     Document Type: Article

References (57)

1. Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977).
2. A "hard case" arises "when no settled rule dictates a decision either way" (Dworkin, Taking Rights Seriously, p. 83).
3. See Hart's statement of Dworkin's views in Essays on Bentham (Oxford: Clarendon Press, 1982), pp. 148-149: "[The] settled part of the law includes the mass of constitutional law, statutes, and precedents under which individuals have already been treated as having legal rights and duties. This is the explicit law; but for Dworkin it does not constitute the whole law, for besides the explicit law, there is, so Dworkin claims, the implicit law which consists of the set of coherent and consistent principles which both explain and morally justify the explicit law-The implicit law is a reservoir of principles presupposed by but wider than the explicit law, which will serve to yield a unique decision in all cases left indeterminate or partially unregulated by the explicit law."
4. Dworkin, Taking Rights Seriously, p. 35.
5. Cf. also: "a legal obligation might be imposed by a constellation of principles as well as by an established rule" (Dworkin, Taking Rights Seriously, p. 44).
6. Dworkin, Taking Rights Seriously, p. 47.
7. Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986).
8. Dworkin, Law's Empire, p. 72.
9. "My point is not that 'the law' contains a fixed number of standards, some of which are rules and others principles-My point was rather that an accurate summary of the considerations lawyers must take into account, in deciding a particular issue of legal rights and duties, would include propositions having the form and force of principles..." (p. 76) Cf. this statement in "Reply to Critics," in Dworkin, Taking Rights Seriously, p. 344: "I did not mean, in rejecting the idea that law is a system of rules, to replace that idea with the idea that law is a system of rules and principles."
10. Dworkin, Taking Rights Seriously, p. 27.
11. Dworkin, Taking Rights Seriously, p. 38.
12. Dworkin, Taking Rights Seriously, p. 37.
13. And see the argument in Dworkin, Taking Rights Seriously, p. 43, that "rules like those announced for the first time in Riggs and Henningsen owe their force at least in part to the authority of principles and policies, and so not entirely to the rule of recognition."
14. The model of rules is the "skeleton" of the position that Dworkin calls "positivism." "Positivism" is an unfortunate term because, if there is any such thing as legal positivism, it is not entailed by an acceptance of the model of rules. Imagine someone who accepts the model of rules, and thinks that there is moral value in having such a form of social regulation, and that people have a prima facie moral obligation to obey the rules. Such a person would reject the "separation thesis" that is the stock in trade of people who have called themselves "legal positivists."
15. That view becomes explicit in Dworkin, Law's Empire, pp. 353-354.
16. Dworkin, Taking Rights Seriously, pp. 116-117.
17. Dworkin, Taking Rights Seriously, p. 35.
18. Dworkin, Taking Rights Seriously, p. 25.
19. Dworkin, Taking Rights Seriously, p. 27.
20. Dworkin, Taking Rights Seriously, p. 24.
21. Note that Dworkin claims that rules may have exceptions, but exceptions can be listed - unlike the "numberless imaginary cases in which we know that a principle would not hold" (Dworkin, Taking Rights Seriously, p. 25). The requirement that drivers stop at a red light is subject to an exception in jurisdictions (e.g. Ontario) that allow a near-side turn on red. I will not discuss Dworkin's remarks on exceptions to rules. My argument is that such legal standards are not "rules" in Dworkin's sense because they are not only occasionally subject to exceptions in Dworkin's sense, but are typically subject to "numberless imaginary" counterinstances.
22. Dworkin, Taking Rights Seriously, p. 4.
23. Dworkin, Taking Rights Seriously, p. 25.
24. Riggs v. Palmer, 22 N.E. 188 (1889) at p. 189.
25. H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994), "Postscript" at p. 262.
26. Dworkin, Taking Rights Seriously, p. 28.
27. Dworkin, Taking Rights Seriously, p. 28. Cf.: "rules like those announced for the first time in Riggs and Henningsen"
28. Dworkin, Taking Rights Seriously, p. 43.
29. Dworkin, Taking Rights Seriously, p. 77.
30. Dworkin, Law's Empire, p. 72.
31. Dworkin, Law's Empire, pp. 65-66.
32. Dworkin, Taking Rights Seriously, pp. 70-71.
33. Ronald Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1986), p. 131.
34. Timothy Endicott, Vagueness in Law (Oxford: Clarendon Press, 2000).
35. For a discussion of the semantic sting argument see Timothy Endicott, "Herbert Hart and the Semantic Sting," Legal Theory 4 (1998), pp. 283-300.
36. Dworkin, Law Empire, p. 37.
37. I think, for example, that it would be compatible with the model of rules to explain the case in a way rather similar to Dworkin, as decided by a legal principle that people should not benefit from their own wrongdoing. I will not support this claim here, because I have no room for the discussion of the nature of legal principles that would be needed.
38. Riggs v. Palmer, 22 N.E. 188 (1889) at p. 190.
39. Riggs at p. 191.
40. Dworkin, Taking Rights Seriously, p. 54.
41. Dworkin, Taking Rights Seriously, p. 54.
42. Dworkin, Taking Rights Seriously, p. 55.
43. Dworkin, Taking Rights Seriously, p. 62.
44. See Hart, The Concept of Law, p. 258.
45. See Hart's "Postscript," The Concept of Law, pp. 254ff.
46. For a clear statement of the theory see Hart, The Concept of Law, p. 255.
47. Cf. Hart, The Concept of Law, pp. 255-256
48. and Dworkin, Taking Rights Seriously, pp. 53ff.
49. Law Empire, p. 145, and Raz's distinction between acting on a general reason and following a rule
50. Joseph Raz, Practical Reason and Norms (Princeton: Princeton University Press, 1990), p. 57.
51. Picture any peculiar custom that has no point except to dramatise a distinction between people (such as barristers in England wearing wigs), and you have an example of a social rule - a practice in which the regularity functions as a reason for behaviour, even if participants in the practice think of themselves as acting on other reasons.
52. It would be more complete to say that the regularity of behaviour is a complex variety of related regularities of behaviour including regularities of action, criticism, self-justification...
53. Dworkin, Taking Rights Seriously, p. 54.
54. Hart makes a similar point in defence of his notion that rules of recognition may be incomplete: see Hart, The Concept of Law, "Postscript," p. 258.
55. For a discussion of incomplete rules, see Timothy Endicott, "Objectivity, Subjectivity, and Incomplete Agreements," in Jeremy Horder (ed.), Oxford Essays in Jurisprudence, Fourth Series (Oxford: Oxford University Press, 2000).
56. For other arguments in favour of the view that the requirements of social rules in particular cases can be controversial, see Joseph Raz, "Two Views of the Nature of the Theory of Law," Legal Theory 4 (1998), pp. 249-282.
57. Hart spurns Dworkin's charity in the "Postscript" to The Concept of Law at pp. 248-250.