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MacCallum On Applying Rules PDF
MacCallum On Applying Rules PDF
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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
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.
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
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
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.
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