Big Idea: General Rules

I tend to latch on to a few big ideas and think about them extensively. Sometimes they are cliches that I see in new lights, sometimes they are basic insights I gradually piece together, sometimes they are insights that I stumble across and which hit me like lightning.

Of the latter, one of the biggest ideas I've come across, I encountered in grad school in a great book by legal historian Morton Horwitz, The Transformation of American Law II. Stated simply, it is that:

General rules cannot be applied to particular circumstances without the use of discretion.

This may seem puzzling at first blush, curious at second, and obscure at third.  But it has enormous implications. 

What it means, basically, is that because general rules can never cover the vast variety of unique circumstances that crop up in real human life, applying those rules to a given case can never been done objectively or automatically – there’s no escaping the need to use judgment. No algorithm will be sufficient, whether that algorithm is applied by a computer, a bureaucracy, or a 19th century judge.

In the 19th century, American judges often envisioned themselves as kinds of computers or automatons, with the job of impersonally applying the law to individual cases, with no room for personal judgment.  As Horwitz explains, it was a group called the Legal Realists who challenged this naïve view in the early 20th century.  Today it is conservatives who cling to "procedural justice" over substantive justice because they view discretion as a morass into which they are afraid to venture, who fail to recognize this big idea.  Thus a man like Antonin Scalia will send a man to his death, despite a drunk defense attorney, clear evidence of innocence, etc, as long as all the procedures were followed carefully in his conviction.

This idea explains what is wrong with sentencing guidelines that remove discretion from judges, the concept of "zero tolerance," any system for rulemaking that does not include a right of appeal, Scientific Management, or the idea of any kind of science of government or management, bureaucracies, and many other things.

However this reality poses a serious problem for the concept of the “rule of law not men.”  How can the law be applied fairly, impartially, and predictably when we recognize that judges (by which I mean anyone who must apply or enforce rules in individual circumstances, from actual judges to bureaucratic clerks to the cop on the beat) must use discretion to apply it?  What is the difference between a judge free to exercise her own discretion, and a dictator?  How can businesses and individuals act with the confidence that they understand the law when it can never be pinned down? 

This is a knotty conundrum of administrative law (but one that won’t go away by simply trying to sweep it aside, as conservatives would do) and of philosophy.  My view is that rules should be thought of like fractals:  they have an undeniable basic shape, and there are always points that clearly lie inside their boundaries and points that clearly lie outside, but they’re fuzzy at the margins. 
Fractal image made by Jay Stanley using Fractint

From afar, those boundaries appear solid, but upon close examination they dissolve into an impossibly complex, ever-receding tangle of branches and sub-branches.  And we must be alert to the possibility that even a point that appears to fall far inside or outside the boundary may not be what it seems.  Judges must work within the core currents of the law, but apply their own judgment at the margins (subject to review and appeal). 

This particular Big Idea will become increasingly significant as we move into the coming era. But that's a subject for another post.

Comments

[Nick Aretakis]

Hi Jay,
This is Nick Aretakis, your friend from UVa. I just came across your blog and I would love to get back in touch with you. If you see this, please send me an e-mail. Best, Nick