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On Applying Rules

by

GERALD C. MACCALLUM, Jr.


(University of Wisconsin)

w h a t is it to apply a rule? Some people seem to think that it


is using the rule to find out something. They seem furthermore
to suppose that a person who has not used a rule to find out
something has not applied the rule. This paper argues that the
latter supposition is a mistake, and that applying a rule may
sometimes be nothing more than invoking the authority of the
rule in support of a course of action already determined.

I
Applying rules is, of course, only one of many things men do
with respect to rules; men also comply with, act on, cite, violate
rules, and-in certain more restricted contexts-establish, revoke,
modify rules, etc. Many such activities are currently of interest
to philosophers working on problems in language, logic and
ethics as well as in jurisprudence, but it is often in connection
with the law that the activities appear most clearly, A person
with any of these interests would therefore do well to look care-
fully at the law, at least for initial insights into what he might
find elsewhere.
Within the law, the question-what is it to apply a rule?-
has not been asked in straightforward fashion, but an answer to
it has come to have importance because of a controversy about
whether judges apply rules in deciding cases. Until roughly
thirty or thirty-five years ago, it was commonly although not
universally said that judges characteristically applied rules, and,
indeed, that they had a duty to do so; but many commentators,
especially in America but also elsewhere, now believe that at
least the former is not true or not often true-at any rate of
ON APPLYING RULES 197

judges sitting on highest courts of appeal. The claim that these


judges do not often or characteristically apply rules does not
reflect a change in the judicial practice of appealing to rules in
justifying judgments or decrees. The practice continues. The
claim is made in the face of this continuance, sometimes being
used to support a contention that judges are not doing what
they are supposed to be doing, and sometimes to support a con-
tention that we have misconceived what these judges are sup-
posed to do. In either case, the claim has introduced (or at least
supported) the notion that the judges, in formulating their
opinions and appealing therein to rules, are most often engaged
in some kind of empty show or pretence. Judicial opinions’ have
thus been regarded as relatively unimportant indicia of the law,
and worries have been created about what judges really me
doing behind that screen of pious pretension. This, in turn, has
abetted concern about the role of relatively ‘independent’ (non-
representative?) judiciaries in democratic societies. For, if judges
are not in fact applying the rules which, according to their
opinions, they seem to be applying, then perhaps they are
engaged in the exercise of relatively uncontrolled or ’free’ discre-
tion in making decisions of obvious social and political im-
portance.
Although the question-what is it for a judge to apply a rule?
-has not been explicitly asked or answered by persons dis-
cussing these matters,. presumptions concerning its answer natu-
rally have figured importantly. The leading presumption, as we
shall see, has been that for a judge to apply rules is for him to
use the rules in discovering the proper resolutions of cases and
controversies. It is this presumption that has led to the arguing
of the issues in terms of contentions about the psychology of
judicial decision-making-i.e., about how judges make up their
minds in cases. I shall argue that this view of applying rules is
mistaken, insofar as it presumes that a judge who did not use
a rule in this way could not have applied the rule.

Not judgments. The latter have been considered by members of this


school to be the most important indicia.
13 - Theoria, 3: 1966
198 GERALD C. MACCALLUM, JR.

The importance of noting such a mistake is as follows:


(11 One is thereby invited to reassess the relevance in legal and
political philosophy of reports on how judges make up their
minds in cases, and in particular the relevance of these reports
to worries about the role of the judiciary in democracies. In
feeding skepticism about whether judges apply rules, the reports
also feed worries about the judicial use of ‘free’ discretion. To
show them indecisive on the former issue is to call for recon-
sideration of their relevance and importance vis-a-vis the latter.
(2) One is also encouraged to reflect, with respect to contexts
somewhat broader than concern for judicial uses of rules, on the
way applying rules may or may not be related to decision-
making. The point to be noticed is that the possible relationships
may be more diverse than expected. Recognition of this may
decrease the urge to be dogmatic about what it is to apply a rule,
and may lead to reconsideration of the importance to be attached
to occasions on which rules are applied.

I1
Consider the claim that is central to the controversy-the claim
that a judge has not applied the rules he says or implies in his
opinion that he has applied. In dealing with such a claim, one
might begin by distinguishing it from quite another-viz., that
saying of a judge that he has applied these rules is not a helpful
or revealing characterization of what he has done. Failure to
distinguish between these two claims may lead some commen-
tators to suppose that they are supporting the former when in
fact they are supporting only the latter. Thus, to show that there
is (a) another rule to which the judge could reasonably have
appealed (in the light of the circumstances of the case), or (b)
another reasonable interpretation of the rule to which he did
appeal, or to show that (c) the argument supporting his appeal
to the rule “could have gone either way,” is not alone enough to
show that he didn’t apply the rule he said he did. It is only
enough to show that it might be worth asking w h y he applied
the rule as he did, and to suggest that all the answers to this
ON APPLYING RULES 199

question are not laid out in his opinion. Notice, for example,
that there is no distortion resulting from describing the above
circumstances as follows: (a) there is another rule which the
judge could have applied, (b) there is another reasonable inter-
pretation of the rule he applied, and (c) the argument sup-
porting his application of the rule “could have gone either way.”
Nevertheless, such information coutd be made relevant to claims
about whether judges have applied rules; this will be shown
below, and it is this circumstance that produces the confusion.
What is not noticed is that without the support of controversial
claims about what it is to apply a rule, the above information is
simply irrelevant.
Those who wish to deny that a judge has applied those rules
he claims in his opinion to have applied, depend upon disting-
uishing between how a judge makes up his mind, and how he
justifies his conclusions. This has manifested itself in their belief
that what a judge says in his opinion (his justification of his
judgment) is not highly relevant to whether he has applied the
rules he cites in his opinion. It is supposed that if a judge has
applied rules at all, he has applied them in making up his mind
on the case, and it is clear to everyone that his opinion may be,
and probably is, something other than a report of how he made
up his mind. Thus, although it is admitted that judges invoke and
appeal to rules, it is denied that they always or even often apply
them.
Two supporting arguments are offered. They are: (1) that the
judge has not arrived at his judgment in the case by way of
reflection on whether the circumstances of the case fall within
the scope of these rules, or (2) that he has not arrived at his
judgment out of conviction that they do. Each argument sup-
poses that something having to do with how the judge made up
his mind may be presented as a necessary condition for his having
applied a rule.
We have evidence appearing to show that in some judicial
decisions one or the other of the above conditions is not fulfilled.
Evidence that judges sometimes arrive at judgments without
first reflecting on whether the circumstances of the case fall
200 GERALD C. MACCALLUM, JK.

within the scope of those rules later invoked in judicial opinions


comes from reports by judges that they sometimes arrive at their
judgments without any need for reflection, or by means of ‘in-
tuitions’ or ‘flashes.’
Evidence that judgments are sometimes arrived at before judges
are convinced that the circumstances fall within the scope of the
rules they later cite in their opinions appears to lie in the lack
of persuasiveness of some judicial arguments. Here, as will be
seen, is the source of the confusion between the two questions
distinguished above-the question concerning whether a judge
has applied rules and the question concerning whether saying
that he has is interesting or revealing. It sometimes appears that
there was another rule that the judge could equally reasonably
have applied to the circumstances of the case but did not men-
tion, or another reasonable interpretation of the rule he did
‘apply,’ or that the argument supporting his ‘application’ of the
rule “could have gone either way.” Supposing that the judge is a
reasonable and well-informed man, and an able practitioner of
his craft, we find it hard to believe, when his supporting argu-
ment is weak, that he could have concluded the way he did
solely because of, or due to his conviction that the circumstances
of the case fell within the scope of the rule he invoked. It is
unlikely in such cases that he was so convinced, although, of
course, there are defenses against such a claim.
It is wrong, however, to take either of these kinds of informa-
tion-information gained from reports by judges as to how they
sometimes reach their conclusions, or information showing certain
weaknesses of judicial arguments-as evidence that judges have
not applied rules. Neither reflection on the rules just before
making up one’s mind, nor making up one’s mind the way one
has solely out of conviction that the circumstances fall within
the scope of the rules, are necessary conditions for applying
rules.
Consider the claim that the judge must have reflected on
whether the circumstances of the case fell within the scope of
the rules before making up his mind. Even on the assumption
that applying rules must be using them somehow in making up
ON APPLYING RULES 20 1

one’s mind, such reflection is not clearly needed in order to


apply a rule. This may be shown by comparing judges to umpires
in games. It would be perilous to describe the interval, some-
times so small, between an umpire’s observation of a player’s
action and the declaration of an infraction or whatever as a time
during which the umpire was considering whether the circum-
stances fell within the scope of a relevant rule. Why say, e.g.,
that the umpire observes the action, considers whether it is an
iriraction of the rule, and then decides that it is? Why not say
that in seeing the action he immediately recognizes it as an in-
fraction of the rule? The interval between the action and the
umpire’s announcement can be explained simply as the time
needed for him to declare what he has recognized, not as the
time needed for him to decide what to say about what he has
seen or the time needed for him to determine whether the circum-
stances fit the rule. Early in one’s career as an umpire, there may
be something like the latter; but as experience accumulates this
seems to disappear. It m a y be true that on some occasions the
interval between the action and the umpire’s declaration is due
to a need to reflect on whether the circumstances fit the rule;
but this doesn’t seem invariably or even characteristically the
case with experienced umpires who are doing their duty-i.e.,
applying and enforcing the rules of the game.
The nearest analogies in judicial practice to umpires are found
when judges, for example, recognize instances of inadmissible
testimony. The judges need not ordinarily reflect on the fit of
the circumstances to the relevant rules in ‘applying’ the latter.
The interval between their observation of the event and their
declaration may be very like the interval between an umpire’s
observing the batter taking a cut at the ball, and the umpire’s
cry of “strike!”
Aside from such cases, it seems reasonable to say that the
chances of immediate recognition that a set of circumstances fall
within the scope of a legal rule-as contrasted with an interval
needed for reflection on the matter-lessen as one moves from,
e.g., traffic courts to courts dealing with a wider range of legal
matters, and as one moves from trial courts to appellate courts.
202 GERALD C. MACCALLUM, JR.

In a court dealing with a wide range of legal matters, the judge


is less likely to be drilled or highly practiced in using the rules
he may be called upon to apply. He is, for example, more likely
to need to remind himself or be reminded by counsel of the rules.
Thus, it is at least more likely that he will actually be attending
to the rules before deciding what his judgment shall be, even
though he may not need to reflect on the fit of the circumstances
to the rules. In litigation on appeal-which is simply litigation in
which a court is asked to pass judgment on a decision by another
court or by the same court on an earlier occasion-, it is reason-
ably certain that the judges will, before deciding what their
judgments shall be, attend to and consider carefully the fit of the
circumstances to at least most of the relevant rules.
One may see in consequence that if it is necessary in order to
apply a rule that a person clearly reflect on the fit of the cir-
cumstances to the rule before making up his mind, then umpires
and perhaps traffic judges do not often apply rules, whereas
appellate judges are more likely to do so. This result suggests
that such reflection is not a necessary condition of applying rules;
further, it is precisely not the result anticipated by the rule-
skeptics. These skeptics have had no desire to impugn claims
that umpires and traffic judges apply rules; rather, they have
wished especially to impugn claims that appellate courts and
judges apply rules.
Nevertheless, one can suggest what may concern those people
who treat reflection as a necessary condition for applying rules.
We purport to want judges not simply to end controversies, but
to end them fairly-not simply to apply legal rules, but to apply
these rules correctly-, i.e., at least to apply all or only appli-
cable There is some reason to regard this as a duty of

When is a rule applicable? For the present, suffice it to say roughly that
a rule is applicable when it is constitutive or regulative of the circumstances
being considered and these circumstances fall within the scope of the rule.
In order to better this explication, one must struggle with how it is that we
identify the circumstances of cases and the regulative force of rules, and one
must translate the metaphor out of the expression "fall within the scope of."
The supposition that judges have a duty to apply all applicable rules
ON APPLYING RULES 203

judges, but the question-were these rules applied?-might be


asked either primarily in the interests of the parties to a case,
or primarily out of an interest in whether the judge was acting
responsibly. In the former instance, one might be interested
principally in the outcome of the case; he is given what he needs
in order to find out its correctness when he is given information
on what the judgment was, what the rules were, and what were
the circumstances of the case. This may be an oversimplification,
but these are the types of information he needs.’
On the other hand, one interested in whether the judge did
his duty to apply all or only the applicable rules may not be satis-
fied with solely the above information. He may feel that he
should know how the judgment was reached. His claim could be
that the correct judgment may have been reached, but not by
way of the judge’s acting dutifully; perhaps it was reached by
chance (the tossing of dice-cf. Rabelais’ Judge. Bridlegoose), or
by reasoning not involving the rules. In these cases (the claim
would be), the judge was not doing his duty.
What seems wanted here is that the judge intend to apply the
rules and that his reason for applying them be that they are ap-
plicable. But since this is all that’s wanted, there is no difficulty
created by the absence in any particular case of obvious reflec-
tion on the part of the judge. A person who is well-drilled in

leads to difficulties in any reasonably complex legal system. Briefly, the


difficulties concern conflicts of rules. It may appear that of the various rules
applicable to a set of circumstances, the application of some will lead to end
results in the case different from the results lead to by application of the
other(s). The question then arises as to how we would describe the duty of
judges in such cases. We could, for example, launch immediately into talk
about the use of judicial discretion; or we could search for higher order rules
governing the application of the rules at hand; or we could consider the
possibility that the rules at hand were actually more complex than initially
imagined, and that they embody in themselves certain qualifications as to the
conditions that fall within their scope. One meets problems like this in
ethics (conflicts of duties), in the philosophy of language (in treatments of
loose and open-textured terms) and very likely elsewhere.
It of course might not be enough to find out the advisability or de-
sirability of the judgment.
204 GERALD C. MACCALLUM, JR.

applying certain rules, and who is presented with a case that is


not unusual, can apply a rule intentionally and out of conviction
that it is applicable without any need for obvious reflection on
the matter. And it is not inconceivable that even in difficult cases
on appeal a rule might suddenly be recognized as applicable.
What, after all, would be evidence that a judge had not intended
to apply the rule? It would presumably have to be evidence that
he had applied it inadvertently." But simply to suggest +his is to
reveal how foolish it is to suppose that a person could not nave
applied a rule unless he somehow had meditated beforehand on
the matter. We often do what we intend to do without anything
recognizable as reflecting on it. There is still, however, a dif-
ficulty produced by distinguishing between the occasion on which
the judge makes up his mind on the case and the occasion on
which he writes his opinion. The notion at work is that on the
latter occasion he is occupied with justifying what went on on
the former occasion. It is then thought that the judge did not
apply the rule unless he applied it on the former occasion.
But contra this, suppose that the Supreme Court of the U. S.,
after hearing a case, votes on the outcome, and a justice is as-
signed the task of writing the majority opinion. He writes the
opinion, circulates it among the members of the court, as is the
custom, and the manuscript is returned with a notation on it by
the last justice to see it. This justice points out a rule of law
which, if used, would simplify the argument presented in the
opinion. The justice writing the opinion accepts this suggestion
and rewrites the opinion accordingly. The revised opinion is ac-
cepted as the opinion of the court.
Now, has the justice who rewrote the opinion applied the rule
suggested by his comrade? What would be the point in saying
that he had not? The justices made up their minds on how to
dispose of the case without the thought having occurred to
anyone of applying the rule in question. Yet the rule was in-
voked in the opinion, and the case now looks to have been

' O r that he had not planned to apply it-something which, however,


would be irrelevant in determining whether, in the end, he did his duty.
ON A P P L Y I N G RULES 205

decided under the authority of that rule (among others, prob-


ably).
If there is any difficulty about this being an instance of ap-
plying the rule, then it may be a difficulty over what constitutes
the decision in the case. One could say the following about this:
Since what counts in law is the declaration by a judge in court
of the judgment of the court, and that is called delivering the
judgment or decision of the court, that, while perhaps not the
occasion on which the court makes up its mind on the case, is
both the culmination and the principal point of the judicial pro-
cess. To make this plain, consider what would happen if the
justices were to make up their minds on the case, and then
wander off without delivering their decision. Given this circum-
stance, it may be of some interest to speak of the intentions of
the justices when making up their minds on the case, but it is
much more to the point to speak of their intentions when deliver-
ing the judgment. In considering the duty of justices, it is the
declaration that counts. It is clear here that if the justices, after
delivering the judgment, think of a rule that could have been
applied, it is too late. It is simply a rule that could have been
applied, not a rule that was applied.
Consider now what is at work in the tendency to resist this
account. This can be done by referring back to the second of the
conditions mentioned above as candidates for being necessary
conditions of applying.rules. It was that a person has not applied
a rule unless his reason for making up his mind the way he did
was that the rule was applicable; that is, that the outcome of the
case must be explainable as due to his conviction that the cir-
cumstances of the case fell within the scope of the rule. If this
were correct, then the hypothetical Supreme Court case pictured
above would not be a case where the rule in question was ap-
plied. It would be a case where the rule was appealed to in
justifying the judgment, but not a case where the rule was
applied-because the judgment would not be explainable as due
to a conviction that the rule applied.
What is at work here is a notion of applying a rule to a case
as we might apply a yardstick to a wall. A yardstick might be
206 GERALD C. MACCALLUM, JR.

used, for example, to find out whether a wall is more than twelve
feet wide. But we haven’t applied the yardstick in this case, i.e.,
made practical use of it as a yardstick, unless we have used it as
a help in finding out whether the wall is or is not more than
twelve feet wide. Likewise, it is thought, with rules. We haven’t
applied a rule unless we have used it as a help in finding out
something. One may think here of Wittgenstein’s mention of
rules as guides or signposts.
This notion of applying rules might be supported by looking
at judicial oaths in a certain way. A judge typically swears to
perform his duties agreeably to, or in accordance with, the laws.
This suggests that he must look to the laws in deciding what to
do, and that he must not do anything inconsistent with the laws.
It suggests that he uses the laws to this extent in finding out
what to do. It is not difficult to see this as applying the laws. If
this is so, then if he appeals to a legal rule in justifying his judg-
ment in a case but hasn’t arrived at the judgment by finding out
that the rule applied, then he hasn’t applied the rule. The parallel
circumstance would be that of a man who has found out, but
not by using a yardstick, that a particular wall is more than
twelve feet wide, and who tells us that by using a yardstick we
will find out that the wall is more than twelve feet wide. He
hasn’t applied the yardstick to the wall.
But there is also at work especially clearly in the law a notion
that applying a rule is like applying coercion. Not a yardstick,
but a club. Applying coercion and applying a rule are both ac-
tions done to produce an effect. This view of rules finds support
in statutory descriptions of the duties of courts. Judges assigned
to these courts are to carry out the duties of the courts-viz., to
hear and determine or to hear and decide cases and controversies
arising under the laws of the government from which they re-
ceive their authority. This is the duty which judges swear in
their oath to perform agreeably to the law.
It is beyond question that the terms “determine” and “decide,”
as they occur in these official descriptions, are not describing a
duty to determine whether or decide whether something is the
case. The duty to determine or decide a case or controversy is a
ON APPLYING RULES 207

duty to put an end to the case or controversy, to conclude it,


terminate it. A judge applies rules in the course of doing this as
a person might apply coercion to the same end. He settles the
controversy in a certain manner or style by applying a rule.
Applying rules, while not exactly like applying a yardstick or
like applying coercion, is more like the latter than is commonly
recognized. That is, there is a focus in both cases on producing
a resolution of a controversy. It is true that some controversies
can be settled by applying a yardstick to a wall, and that ap-
plying the yardstick settles the controversy. But, while it makes
sense to ask whether to apply the yardstick, it doesn’t make
sense prima facie to ask whether the yardstick applies; that is
there isn’t a practice of applying yardsticks in certain situations.
It does make sense right off, however, to ask whether a rule
applies. In judicial practice, it is very often true that to ask
whether the rule applies is to ask whether to apply the rule. (Not
surprisingly, applying a rule is like applying a word; considering
whether a word applies is very often considering whether to
apply the word.) But consider the distinction between the ques-
tions (a) Does the rule apply? and (b) Shall I apply the rule?
Asking whether the rule applies is asking whether the circum-
stances of the case fall within the scope of the rule; a judge may
know this and yet ask-shall I apply the rule? This shows that
he does not apply the rule in order to find out something; he
applies it in order to bring a controversy to an end of a certain
sort. To ask-shall I apply the rule?-is for a judge to ask either
(a) shall I bring the controversy to this end? or (b) shall I sup-
port the (predetermined) resolution of the controversy in this
way?
The point is that the rules applied count for something in the
practice in which the judge is engaged. Even the judicial oath
helps one to understand this. The judge swears to do his duty
conformably t o the laws; this, it is likely, means that he swears
to comply with the laws where compliance by him is called for,
and to apply them where they are applicable. Consideration of
this oath suggests that when a judge applies a rule he is invoking
that rule as authority for deciding the case the way he has. He
208 GERALD C. MACCALLUM, JR.

claims that the authority of the rule supports his resolution of


the case. Perhaps he has not fulfilled this duty. He may have
misapplied the rule, or he may have applied the wrong rule. That
is, respectively, he may have mistaken the results in fact dictated
by the rule, or he may have applied a rule to circumstances
which did not fall within the scope of the rule. Nevertheless he
has applied the rule if he invokes the authority of the rule in
justification of the results he has reached. For him to apply the
rule is for him to present his judgment as in accordance with the
results dictated by the rule. It makes no difference whether he
is convinced or not convinced that the rule applies; for him,
applying a rule may amount to nothing more than a manner or
style of presenting his decision. Therefore, if he says or implies
in his opinion that a rule has been applied, then it has been
applied."

I11
The conclusions to be drawn from the above discussion seem as
follows:
1. Skepticism about whether judges apply rules has been based
upon too limited a view of what it can be to apply a rule. Con-
trary to what the skeptics seem to have thought, (a) reflection
on whether a rule applies is neither a necessary condition for
applying the rule nor a necessary condition for being convinced
that it applies; (b) being convinced that a rule applies is not a
necessary condition for applying it-it is at most a condition of
dutiful or responsible application of the rule; (c) a judge may
have applied a rule in a case even though he did not use the rule
at all in making up his mind on what his judgment in the case
would be-hence, applying a rule need not be something a judge
does on the way to discovering the proper resolution of a case.
(Whether it is ever this, I leave open.)
2. Admittedly, someone interested in the motives, skill, or

Note that the issue as to whether a judge may have applied a rule not
invoked is left entirely open by this discussion. The claims have been about
what is sufficient, not what is necessary.
O N APPLYING RULES 209

even craft of judges will need to go beyond or behind judicial


opinions for relevant information. But he will never need to do
so in order to determine whether a judge has applied the rules he
says or implies in his opinion that he has applied. In this last
matter, at least, studies of the psychology of judicial decision-
making are irrelevant and cannot provide any legitimate grounds
for skepticism about whether judges ever or even very often
apply rules.
3. Insofar as reports on the psychology of judicial decision-
making have provided grounds for worries about the extent to
which judges have ‘free discretion’ in deciding on cases and for
discounting the importance of studying judicial opinions, one
may say the following: As has been seen, applying rules is an
activity of use to judges at least in part because it can amount
to invoking the authority of the rules in support of judgments.
The mere facts (i) that judges bother to do this, and (ii) that
such invoking will misfire if the rules are too obviously mis-
applied or inapplicable, show what is in the claim that judges
find rather than make the law, and thus what is in the claim that
the discretion of judges is limited. No one, at least, can afford
to overlook the usefulness of these invokings to judges and the
limits (however broad they may sometimes seem to be) placed
on judicial judgments by the general desirability for judges of
avoiding obvious misapplications of rules and applications of
obviously inapplicable. rules.
4.Because applying a rule can, on analogy with applying coer-
cion, be something done to produce a certain effect, it can work
to produce that effect only when the rule applied has a relatively
firm authority-i.e., when it is such that there is some sense in
the circumstances to talk about invoking the authority of the
rule. In this respect, judicial decision-making may be a somewhat
special setting; the special responsibilities and authority of judges,
and the especially firm authority of the rules themselves, com-
bine to give the account of applying rules offered here a firm-
ness it might not otherwise have. Thus it might have only a
shadowy application elsewhere, depending upon where one seeks
to use it. Nonetheless, it may help one to see even elsewhere the
210 GERALD C. MACCALLUM, JR.

extent to which applying rules may be something other than a


means of discovering what is legitimate or authoritatively dic-
tated. It may, that is, help one to see the extent to which ap-
plying rules may be a means of sanctioning a decision or action as
legitimate or authoritatively dictated-i.e, the extent to which
rules may be used as bludgeons as well as guides.