Dworkin Model of Rules PDF

The Model of Rules
Author(s): Ronald M. Dworkin

Source: The University of Chicago Law Review, Vol. 35, No. 1 (Autumn, 1967), pp. 14-46
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The Model of Rules
Ronald M. Dworkin
I. EMBARRASSING QUESTIONS
Lawyerslean heavilyon the connectedconceptsof legal rightand

legal obligation.We saythatsomeonehas a legal rightor duty,and we
take thatstatementas a sound basis formakingclaims and demands,
and forcriticizingthe acts of public officials.But our understanding
of theseconceptsis remarkablyfragile,and we fall into troublewhen
we tryto saywhat legal rightsand obligationsare. We say gliblythat
whethersomeone has a legal obligation is determinedby applying
"the law" to the particularfactsof his case, but this is not a helpful
answer,because we have the same difficulties with the conceptof law.
We are used to summingup our troublesin the classicquestionsof
jurisprudence:What is "the law"? When two sides disagree,as often
happens, about a proposition"of law," what are they disagreeing
about, and how shall we decide which side is right?Why do we call
what"the law" saysa matterof legal "obligation"?Is "obligation"here
just a termof art,meaningonly "what the law says"?Or does legal
obligationhave somethingto do with moral obligation?Can we say
thatwe have, in principleat least,the same reasonsformeetingour
legal obligationsthat we have formeetingour moral obligations?
These are not puzzlesforthe cupboard,to be takendown on rainy
daysforfun.They are sourcesof continuingembarrassment, and they
nag at our attention.They embarrassus in dealing with particular
problemsthat we must solve, one way or another.Suppose a novel
right-of-privacy case comes to court,and thereis no statuteor prece-
dent either grantingor denying the particularright of anonymity
claimed by the plaintiff.What role in the court'sdecision should be
played by the fact that most people in the communitythink that
privateindividualsare "morally"entitledto that particularprivacy?
Suppose the Supreme Court orderssome prisonerfreedbecause the
police used proceduresthat the Court now says are constitutionally
forbidden,although the Court's earlier decisions upheld these pro-
Ronald Dworkin is Professorof Law at Yale University.Copyright? 1967 by the author.
This article is adapted from a chapter in a forthcomingbook.
14

The Model of Rules 15
cedures. Must the Court, to be consistent,free all other prisoners

previouslyconvicted through these same procedures?' Conceptual
puzzlesabout "the law" and "legal obligation"become acute when a
court is confrontedwith a problemlike this.
These eruptionssignal a chronicdisease. Day in and day out we
send people to jail, or take moneyaway fromthem,or make them
do thingstheydo not want to do, under coercionof force,and we
justifyall of this by speakingof such personsas having broken the
law or havingfailed to meet theirlegal obligations,or having inter-
feredwithotherpeople's legal rights.Even in clear cases (a bank rob-
ber or a willful breach of contract),when we are confidentthat
someonehad a legal obligationand broke it, we are not able to give
a satisfactoryaccountof whatthatmeans,or whythatentitlesthe state
to punishor coercehim.We mayfeelconfidentthatwhatwe are doing
is proper,but until we can identifythe principleswe are following
we cannotbe sure thattheyare sufficient, or whetherwe are applying
them consistently. In less clear cases, when the issue of whetheran
obligationhas been brokenis forsome reasoncontroversial, the pitch
of thesenaggingquestionsrises,and our responsibility to findanswers
deepens.
Certainlawyers(we maycall them"nominalists")urge thatwe solve
theseproblemsby ignoringthem.In theirview the conceptsof "legal
obligation" and "the law" are myths,invented and sustained by
lawyersfora dismal mix of consciousand subconsciousmotives.The
puzzleswe findin theseconceptsare merelysymptomsthat theyare
myths.They are unsolvablebecauseunreal,and our concernwiththem
is just one featureof our enslavement.We would do betterto flush
awaythe puzzlesand theconceptsaltogether, and pursueour important
social objectiveswithoutthis excessbaggage.
This is a temptingsuggestion,but it has fatal drawbacks.Before
we can decide that our conceptsof law and of legal obligation are
myths,we must decide what theyare. We must be able to state,at
least roughly,what it is we all believe that is wrong.But the nerve
of our problemis thatwe have greatdifficulty in doing just that. In-
deed, when we ask what law is and what legal obligationsare, we are
asking for a theoryof how we use those conceptsand of the con-
ceptual commitmentsour use entails. We cannot conclude, before
we have sucha generaltheory,thatour practicesare stupidor supersti-
tious.
Of course, the nominaliststhink they know how the rest of us
1 See Linkletter v. Walker, 381 U.S. 618 (1965).

16 The Universityof Chicago Law Review [Vol. 35:14
use theseconcepts.They thinkthatwhen we speak of "the law," we

mean a set of timelessrules stockedin some conceptualwarehouse
awaitingdiscoverybyjudges,and thatwhenwe speakof legal obliga-
tion we mean the invisiblechains these mysterious rules somehow
drape around us. The theorythat thereare such rules and chains
theycall "mechanicaljurisprudence," and theyare rightin ridiculing
itspractitioners.Their difficulty,
however,lies in findingpractitioners
to ridicule.So fartheyhave had littleluck in cagingand exhibiting
mechanicaljurisprudents(all specimenscaptured-even Blackstone
and JosephBeale-have had to be releasedaftercarefulreadingof
theirtexts).
In any event,it is clear thatmostlawyershave nothinglike thisin
mindwhentheyspeakof the law and of legal obligation.A superficial
examinationof our practicesis enoughto show this,forwe speak of
laws changingand evolving,and of legal obligationsometimesbeing
problematical.In these and other ways we show that we are not
addictedto mechanicaljurisprudence.
Nevertheless,we do use theconceptsoflaw and legal obligation,and
we do supposethatsociety'swarrantto punishand coerce is written
in thatcurrency.It maybe thatwhen the detailsof thispracticeare
laid bare,the conceptswe do use will be shownto be as sillyand as
thickwith illusion as thosethe nominalistsinvented.If so, then we
shall have to findotherwaysto describewhatwe do, and eitherpro-
vide otherjustifications or change our practices.But until we have
discoveredthis and made these adjustments,we cannot accept the
nominalists'prematureinvitationto turnour backson the problems
our presentconceptsprovide.
Of coursethe suggestionthatwe stop talkingabout "the law" and
"legal obligation" is mostlybluff.These conceptsare too deeply
cementedinto the structureof our political practices-theycannot
be givenup like cigarettesor hats.Some of thenominalistshave half-
admittedthisand said thatthemythstheycondemnshouldbe thought
of as Platonic mythsand retainedto seduce the massesinto order.
This is perhapsnot so cynicala suggestionas it seems;perhapsit is a
coverthedgingof a dubious bet.
If we boil awaythe bluff,thenominalistattackreducesto an attack
on mechanicaljurisprudence.Through the lines of the attack,and
in spiteof the heroiccalls forthe deathof law, the nominaliststhem-
selves have offeredan analysisof how the terms"law" and "legal
obligation"should be used whichis not verydifferent fromthat of
more classical philosophers.Nominalistspresenttheir analysisas a
model of how legal institutions (particularly
courts)"reallyoperate."

1967] The Model of Rules 17
But theirmodel differs mainlyin emphasisfromthe theoryfirstmade

popular by the nineteenthcenturyphilosopherJohn Austin, and
now acceptedin one formor anotherby mostworkingand academic
lawyerswho hold views on jurisprudence.I shall call this theory,
with some historicallooseness,"positivism."I want to examine the
soundnessof positivism,particularlyin the powerfulformthat Pro-
fessorH. L. A. Hart of Oxfordhas givento it. I choose to focuson his
position,not onlybecause of itsclarityand elegance,but because here,
as almost everywhereelse in legal philosophy,constructivethought
muststartwitha considerationof his views.
II. POSITIVISM
Positivismhas a few central and organizingpropositionsas its

skeleton,and thoughnot everyphilosopherwho is called a positivist
would subscribeto thesein theway I presentthem,theydo definethe
generalpositionI want to examine.These keytenetsmaybe statedas
follows:
(a) The law of a communityis a set of special rules used by the
communitydirectlyor indirectlyfor the purpose of determining
which behavior will be punished or coerced by the public power.
These special rules can be identifiedand distinguishedby specific
criteria,by testshaving to do not with theircontentbut with their
pedigree or the manner in which theywere adopted or developed.
These testsof pedigreecan be used to distinguishvalid legal rules
fromspuriouslegal rules (rules which lawyersand litigantswrongly
argue are rules of law) and also fromothersortsof social rules (gen-
erallylumped togetheras "moral rules") that the communityfollows
but does not enforcethroughpublic power.
(b) The set of these valid legal rules is exhaustiveof "the law,"
so thatif someone'scase is not clearlycoveredby such a rule (because
thereis none that seemsappropriate,or those that seem appropriate
are vague,or forsome otherreason) thenthatcase cannotbe decided
by "applyingthe law." It must be decided by some official,like a
judge, "exercisinghis discretion,"which means reachingbeyond the
law forsome othersortof standardto guide him in manufacturing a
freshlegal rule or supplementing an old one.
(c) To say thatsomeonehas a "legal obligation"is to say that his
case falls under a valid legal rule that requireshim to do or to for-
bear fromdoing something.(To sayhe has a legal right,or has a legal
power of some sort,or a legal privilegeor immunity,is to assert,in
a shorthandway,thatothershave actual or hypotheticallegal obliga-

tionsto act or not to act in certainwaystouchinghim.) In theabsence
of such a valid legal rule thereis no legal obligation;it followsthat
whenthejudge decidesan issue by exercisinghis discretion, he is not
enforcinga legal obligationas to that issue.
This is onlytheskeletonof positivism. The fleshis arrangeddiffer-
entlyby different positivists,and some even tinkerwith the bones.
Differentversionsdifferchieflyin their descriptionof the funda-
mentaltestof pedigreea rule mustmeetto countas a rule of law.
Austin,for example,framedhis versionof the fundamentaltest
as a seriesof interlockingdefinitionsand distinctions.2 He defined
havingan obligationas lyingundera rule, a rule as a generalcom-
mand,and a commandas an expressionof desirethatothersbehave
in a particularway, backed by the power and will to enforcethat
expressionin the eventof disobedience.He distinguishedclassesof
rules(legal,moralor religious)accordingto whichpersonor groupis
theauthorof thegeneralcommandthe rule represents. In each politi-
cal community, he thought,one will finda sovereign-a personor a
determinategroup whom the rest obey habitually,but who is not
in the habit of obeyinganyoneelse. The legal rules of a community
are the generalcommandsits sovereignhas deployed.Austin'sdefini-
tion of legal obligationfollowedfromthisdefinitionof law. One has
a legal obligation,he thought,if one is amongthe addresseesof some
generalorderof thesovereign, and is in dangerof sufferinga sanction
unlesshe obeysthatorder.
Of course, the sovereigncannot provide for all contingencies
throughany schemeof orders,and some of his orderswill inevitably
be vague or have furryedges. Therefore(accordingto Austin) the
sovereigngrantsthosewho enforcethelaw (judges)discretionto make
freshorderswhen novel or troublesomecases are presented.The
judges then make new rules or adapt old rules, and the sovereign
eitheroverturnstheircreations,or tacitlyconfirmsthem by failing
to do so.
Austin'smodel is quite beautifulin its simplicity. It assertsthe first
tenetof positivism, thatthe law is a set of rules speciallyselectedto
governpublic order,and offersa simple factualtest-what has the
sovereigncommanded?-as the sole criterionfor identifying those
specialrules.In time,however,thosewho studiedand triedto apply
Austin's model found it too simple. Many objectionswere raised,
amongwhichwere two thatseemedfundamental. First,Austin'skey
assumptionthatin each communitya determinategroup or institu-
2 J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (1832).

tion can be found,which is in ultimatecontrolof all othergroups,

seemednot to hold in a complexsociety.Politicalcontrolin a modern
nation is pluralisticand shifting,a matterof more or less, of com-
promiseand cooperationand alliance,so thatit is oftenimpossibleto
say that any person or group has that dramaticcontrolnecessaryto
qualifyas an Austiniansovereign.One wants to say, in the United
States forexample, that the "people" are sovereign.But this means
almost nothing,and in itselfprovidesno test for determiningwhat
the "people" have commanded,or distinguishingtheir legal from
theirsocial or moralcommands.
Second, criticsbegan to realize that Austin's analysisfails entirely
to account for, even to recognize,certain strikingfacts about the
attitudeswe taketoward"the law." We make an importantdistinction
betweenlaw and even the generalordersof a gangster.We feel that
the law's strictures-andits sanctions-are differentin that theyare
obligatoryin a way that the outlaw's commandsare not. Austin's
analysishas no place for any such distinction,because it definesan
obligation as subjection to the threatof force,and so founds the
authorityof law entirelyon the sovereign'sabilityand will to harm
thosewho disobey.Perhaps the distinctionwe make is illusory-per-
haps our feelingsof some special authorityattachingto the law is
based on religious hangoveror another sort of mass self-deception.
But Austin does not demonstratethis,and we are entitledto insist
thatan analysisof our conceptof law eitheracknowledgeand explain
our attitudes,or showwhytheyare mistaken.
H. L. A. Hart'sversionof positivismis morecomplexthanAustin's,
in two ways.First,he recognizes,as Austin did not, thatrules are of
different logical kinds (Hart distinguishestwo kinds,which he calls
"primary"and "secondary"rules). Second, he rejectsAustin'stheory
that a rule is a kind of command,and substitutesa more elaborate
generalanalysisof what rules are. We must pause over each of these
points,and thennote how theymergein Hart's conceptof law.
Hart's distinctionbetweenprimaryand secondaryrules is of great
importance.8Primaryrules are those that grantrightsor impose ob-
ligationsupon membersof the community.The rules of the criminal
law thatforbidus to rob,murderor drive too fastare good examples
of primaryrules.Secondaryrules are thosethatstipulatehow, and by
whom, such primaryrules may be formed,recognized,modifiedor
extinguished.The rules thatstipulatehow Congressis composed,and
how it enactslegislation,are examplesof secondaryrules. Rules about
formingcontractsand executingwills are also secondaryrules because
3 See H. L. A. HART,THE CONCEPT OF LAw 89-96 (1961).

20 The University
of ChicagoLaw Review [Vol. 35:14
theystipulatehow veryparticularrules governingparticularlegal
obligations(i.e., the termsof a contractor the provisionsof a will)
come into existenceand are changed.
His generalanalysisof rules is also of great importance.4 Austin
had said thateveryrule is a generalcommand,and thata personis
obligatedundera rule if he is liable to be hurtshouldhe disobeyit.
Hart pointsout that this obliteratesthe distinctionbetweenbeing
obligedto do somethingand beingobligatedto do it. If one is bound
by a rule he is obligated,not merelyobliged,to do what it provides,
and thereforebeing bound by a rule must be different frombeing
subjectto an injuryif one disobeysan order.A rule differs froman
order,amongotherways,by beingnormative, by settinga standardof
behaviorthat has a call on its subject beyondthe threatthat may
enforceit. A rule can neverbe bindingjust becausesomepersonwith
physicalpowerwantsit to be so. He musthave authorityto issue the
rule or it is no rule, and such authoritycan onlycome fromanother
rule whichis alreadybindingon thoseto whom he speaks.That is
the difference betweena valid law and the ordersof a gunman.
So Hart offersa generaltheoryof rules thatdoes not make their
authoritydepend upon the physicalpower of theirauthors.If we
examine the way different rules come into being, he tells us, and
attend to the distinctionbetweenprimaryand secondaryrules, we
see thatthereare twopossiblesourcesof a rule's authority.5
(a) A rule may become bindingupon a group of people because
thatgroupthroughits practicesacceptsthe rule as a standardforits
conduct.It is not enoughthatthegroupsimplyconforms to a pattern
of behavior:even thoughmostEnglishmenmaygo to the movieson
Saturdayevening,theyhave not accepteda rule requiringthat they
do so. A practiceconstitutes the acceptanceof a rule onlywhenthose
who followthe practiceregardtherule as binding,and recognizethe
rule as a reasonor justificationfortheirown behaviorand as a reason
forcriticizing the behaviorof otherswho do not obey it.
(b) A rule may also become binding in quite a different way,
namelyby beingenactedin conformity withsomesecondaryrule that
stipulatesthatrulesso enactedshall be binding.If the constitution of
a club stipulates,for example, that by-lawsmay be adopted by a
majorityof the members,thenparticularby-lawsso votedare binding
upon all the members,not because of any practiceof acceptanceof
theseparticularby-laws,but because the constitution saysso. We use
the conceptof validityin thisconnection:rulesbindingbecause they
4 Id. at 79-88.
5 Id. at 97-107.

have been createdin a mannerstipulatedby some secondaryrule are

called "valid" rules. Thus we can record Hart's fundamentaldistinc-
tion this way: a rule may be binding (a) because it is accepted or
(b) because it is valid.
Hart's conceptof law is a construction of thesevariousdistinctions.6
Primitivecommunitieshave onlyprimaryrules,and theseare binding
entirelybecause of practicesof acceptance.Such communitiescannot
be said to have "law," because thereis no way to distinguisha set of
legal rules fromamongstothersocial rules,as the firsttenet of posi-
tivismrequires. But when a particularcommunityhas developed a
fundamentalsecondaryrule that stipulateshow legal rules are to be
identified,the idea of a distinctset of legal rules,and thus of law, is
born.
Hart calls such a fundamentalsecondaryrule a "rule of recogni-
tion." The rule of recognitionof a givencommunitymaybe relatively
simple ("What the king enacts is law") or it may be very complex
(the United States Constitution,with all its difficulties of interpre-
tation,may be considereda single rule of recognition).The demon-
strationthat a particularrule is valid may thereforerequire tracing
a complicatedchain of validityback fromthat particularrule ulti-
mnately to the fundamentalrule. Thus a parkingordinanceof the city
of New Haven is valid because it is adopted by a citycouncil,pursu-
ant to the proceduresand within the competencespecifiedby the
municipal law adopted by the state of Connecticut,in conformity
with the proceduresand withinthe competencespecifiedby the con-
stitutionof the stateof Connecticut,whichwas in turnadopted con-
sistentlywiththe requirementsof the United StatesConstitution.
Of course,a rule of recognitioncannot itselfbe valid, because by
hypothesisit is ultimate,and so cannot meet testsstipulatedby a
more fundamentalrule. The rule of recognitionis the sole rule in a
legal systemwhose binding forcedepends upon its acceptance.If we
wish to know what rule of recognitiona particularcommunityhas
adopted or follows,we mustobservehow its citizens,and particularly
behave. We must observewhat ultimateargumentsthey
its officials,
acceptas showingthe validityof a particularrule, and what ultimate
argumentstheyuse to criticizeother officialsor institutions.We can
apply no mechanicaltest,but there is no danger of our confusing
therule of recognitionof a communitywithitsrules of morality.The
rule of recognitionis identifiedby the fact that its province is the
operationof the governmentalapparatusof legislatures,courts,agen-
ries. nolicemen.and the rest.
6 Id. passim, particularlych. VI.

In this way Hart rescues the fundamentalsof positivismfrom

Austin'smistakes.Hart agreeswithAustinthatvalid rulesof law may
be createdthroughthe acts of officials and public institutions.But
Austinthoughtthattheauthority oftheseinstitutionslay onlyin their
monopolyof power.Hart findstheirauthorityin the backgroundof
constitutionalstandardsagainst which theyact, constitutionalstan-
dards thathave been accepted,in the formof a fundamentalrule of
recognition, by the communitywhichtheygovern.This background
legitimates decisionsof government
the and gives themthe cast and
call of obligation that the naked commandsof Austin's sovereign
lacked. Hart's theorydiffersfromAustin'salso, in recognizingthat
different communitiesuse different ultimatetestsof law, and that
some allow othermeansof creatinglaw than the deliberateact of a
legislativeinstitution.Hart mentions"long customarypractice"and
"therelation[ofa rule] to judicial decisions"as othercriteriathatare
oftenused,thoughgenerallyalong withand subordinateto the testof
legislation.
So Hart's versionof positivismis morecomplexthanAustin's,and
his testfor valid rules of law is more sophisticated.In one respect,
however,thetwomodelsare verysimilar.Hart,like Austin,recognizes
thatlegal rules have furryedges (he speaksof themas having"open
texture")and, again like Austin,he accountsfor troublesomecases
bysayingthatjudges haveand exercisediscretionto decide thesecases
by freshlegislation.7(I shall later tryto show why one who thinks
of law as a special set of rules is almostinevitablydrawnto account
fordifficult cases in termsof someone'sexerciseof discretion.)
ANDPOLICIES
III. RULES,PRINCIPLES,
I want to make a general attackon positivism,and I shall use
H. L. A. Hart'sversionas a target,whena particulartargetis needed.
My strategywill be organizedaround the fact that when lawyers
reason or disputeabout legal rightsand obligations,particularlyin
thosehard cases when our problemswith theseconceptsseem most
acute,theymake use of standardsthatdo not functionas rules,but
operatedifferently as principles,policies,and othersortsof standards.
Positivism,I shall argue,is a model of and fora systemof rules,and
its centralnotion of a single fundamentaltest for law forcesus to
missthe importantroles of thesestandardsthatare not rules.
I just spoke of "principles,policies,and othersortsof standards."
MostoftenI shall use the term"principle"generically, to referto the
7 Id. ch. VII.

whole set of these standardsother than rules; occasionally,however,
I shall be more precise, and distinguishbetween principles and
policies.Althoughnothingin the presentargumentwill turnon the
distinction,I should state how I draw it. I call a "policy" that kind
of standardthat setsout a goal to be reached,generallyan improve-
ment in some economic,political,or social featureof the community
(though some goals are negative,in that they stipulate that some
present featureis to be protectedfrom adverse change). I call a
"principle" a standardthat is to be observed,not because it will
advance or secure an economic,political,or social situationdeemed
desirable,but because it is a requirementof justice or fairnessor
some otherdimensionof morality.Thus the standardthatautomobile
accidentsare to be decreasedis a policy,and the standardthatno man
may profitby his own wrong a principle. The distinctioncan be
collapsed by construinga principleas statinga social goal (i.e., the
goal of a societyin which no man profitsby his own wrong),or by
construinga policyas statinga principle(i.e., the principlethat the
goal the policy embracesis a worthyone) or by adopting the utili-
tarianthesisthatprinciplesof justiceare disguisedstatements of goals
(securingthe greatesthappinessof the greatestnumber).In some con-
textsthe distinctionhas uses whichare lost if it is thuscollapsed.8
My immediatepurpose,however,is to distinguishprinciplesin the
genericsensefromrules,and I shall startby collectingsome examples
of the former.The examples I offerare chosen haphazardly;almost
any case in a law schoolcasebookwould provideexamplesthatwould
serveas well. In 1889 a New York court,in thefamouscase of Riggsv.
Palmer,9had to decide whetheran heir named in the will of his
grandfather could inheritunder that will, even thoughhe had mur-
dered his grandfather to do so. The court began its reasoningwith
this admission:"It is quite true that statutesregulatingthe making,
proofand effectof wills, and the devolutionof property,if literally
construed,and if theirforceand effectcan in no way and under no
circumstancesbe controlledor modified,give this propertyto the
murderer."''0 But the court continued to note that "all laws as well
as all contractsmay be controlledin their operation and effectby
general,fundamentalmaximsof the common law. No one shall be
permittedto profitby his own fraud,or to take advantage of his
own wrong,or to found any claim upon his own iniquity,or to ac-
8 See Dworkin, Wasserstrom:The Judicial Decision, 75 E-mICs 47 (1964), reprinted as
Does Law Have a Function?, 74 YALE L.J. 640 (1965).
9 115 N.Y. 506, 22 N.E. 188 (1889).
10 Id. at 509, 22 N.E. at 189.

24 of ChicagoLaw Review
The University [Vol. 35:14
quire property by his own crime."1lThe murdererdid not receivehis

inheritance.
In 1960,a New Jerseycourtwas faced,in Henningsenv. Bloom-
fieldMotors,Inc.,12with the importantquestionof whether(or how
much)an automobilemanufacturer maylimithis liabilityin case the
automobileis defective. Henningsen had bought a car, and signed
a contractwhichsaid thatthe manufacturer's liabilityfordefectswas
limitedto "makinggood" defectiveparts-"this warrantybeing ex-
presslyin lieu of all otherwarranties, obligationsor liabilities."Hen-
ningsenarguedthat,at leastin thecircumstances ofhis case,themanu-
facturer oughtnot to be protectedby thislimitation,and oughtto be
liable forthemedicaland otherexpensesof personsinjuredin a crash.
He was not able to point to any statute,or to any establishedrule of
law, thatpreventedthe manufacturer fromstandingon the contract.
The courtnevertheless agreedwithHenningsen.At variouspointsin
thecourt'sargumentthe followingappeals to standardsare made: (a)
"[W]e mustkeep in mindthegeneralprinciplethat,in the absenceof
fraud,one who does not choose to read a contractbeforesigningit
cannotlater relievehimselfof its burdens."13(b) "In applyingthat
principle,the basic tenetof freedomof competentpartiesto contract
is a factorof importance. "14 (c) "Freedomof contractis not such an
immutabledoctrineas to admit of no qualificationin the area in
whichwe are concerned. "15 (d) "In a societysuch as ours,wherethe
automobileis a commonand necessary adjunctof dailylife,and where
its use is so fraughtwith danger to the driver,passengersand the
public, the manufacturer is under a special obligationin connection
withtheconstruction, promotionand sale ofhiscars.Consequently, the
courtsmustexaminepurchaseagreementscloselyto see if consumer
and public interests are treatedfairly."'16(e) " '[I]s thereany principle
which is more familiaror more firmlyembeddedin the historyof
Anglo-American law than the basic doctrinethatthe courtswill not
permit themselvesto be used as instruments of inequity and in-
justice?'"'7 (f) "'More specifically, the courtsgenerallyrefuseto lend
themselves to the enforcement of a "bargain"in whichone partyhas
unjustlytakenadvantageof theeconomicnecessitiesof other.. "18
11 Id. at 511, 22 N.E. at 190.

32 N.J. 358, 161 A.2d 69 (1960).
12
13 Id. at 386, 161 A.2d at 84.
14 Id.
15 Id. at 388, 161 A.2d at 86.
16 Id. at 387, 161 A.2d at 85.
J., in United States v. Bethlehem
17 Id. at 389, 161 A.2d at 86 (quoting Frankfurter,
Steel, 315 U.S. 289, 326 (1942)).
18 Id.

The standardssetout in thesequotationsare not thesortwe thinkof

as legal rules. They seem verydifferent frompropositionslike "The
maximumlegal speed on the turnpikeis sixtymiles an hour" or "A
will is invalidunlesssignedby threewitnesses."They are different be-
cause theyare legal principlesratherthan legal rules.
The difference betweenlegal principlesand legal rules is a logical
distinction.Both setsof standardspoint to particulardecisionsabout
legal obligation in particularcircumstances, but they differin the
characterof the directiontheygive. Rules are applicable in an all-or-
nothingfashion.If thefactsa rule stipulatesare given,theneitherthe
rule is valid,in whichcase the answerit suppliesmustbe accepted,or
it is not,in whichcase it contributesnothingto thedecision.
This all-or-nothing is seen mostplainlyif we look at the way rules
operate,not in law, but in someenterprisetheydominate-a game,for
example. In baseball a rule providesthat if the batterhas had three
strikes,he is out. An officialcannotconsistently acknowledgethatthis
is an accuratestatement ofa baseballrule,and decide thata batterwho
has had threestrikesis not out. Of course,a rule mayhave exceptions
(the batterwho has takenthreestrikesis not out if the catcherdrops
the thirdstrike).However,an accuratestatementof the rule would
take this exceptioninto account,and any that did not would be in-
complete.If thelistofexceptionsis verylarge,it would be too clumsyto
repeatthemeach timetherule is cited; thereis, however,no reasonin
theorywhytheycould not all be added on, and the more thatare, the
moreaccurateis the statementof the rule.
If we take baseball rules as a model, we findthatrules of law, like
the rule thata will is invalid unless signedby threewitnesses,fitthe
rm-odel well. If the requirementof threewitnessesis a valid legal rule,
then it cannot be that a will has been signed by only two witnesses
and is valid. The rule mighthave exceptions,but if it does then it is
inaccurateand incompleteto statetherule so simply,withoutenumer-
ating the exceptions.In theory,at least, the exceptionscould all be
listed,and the moreof themthatare, the more completeis the state-
mentof the rule.
But this is not the way the sample principlesin the quotations
operate. Even those which look most like rules do not set out legal
consequencesthat followautomaticallywhen the conditionsprovided
are met.We say thatour law respectsthe principlethatno man may
profitfromhis own wrong,but we do not mean thatthelaw neverper-
mits a man to profitfromwrongshe commits.In fact,people often
profit,perfectly legally,fromtheirlegal wrongs.The most notorious
case is adverse possession-if I trespasson your land long enough,
someday I will gain a rightto crossyourland wheneverI please. There

are manylessdramaticexamples.If a man leavesone job, breakinga

contract,to take a much higherpayingjob, he may have to pay
damagesto his first employer, but he is usuallyentitledto keep his new
salary.If a man jumps bail and crossesstatelines to make a brilliant
investment in anotherstate,he maybe sent back to jail, but he will
keep his profits.
We do not treatthese-and countlessothercounter-instances that
can easilybe imagined-as showingthatthe principleabout profiting
fromone's wrongsis not a principleof our legal system,or thatit is
incompleteand needsqualifyingexceptions.We do not treatcounter-
instancesas exceptions(at least not exceptionsin the way in whicha
catcher'sdroppingthe thirdstrikeis an exception)because we could
nothope to capturethesecounter-instances simplybya moreextended
statementof the principle.They are not, even in theory,subject to
enumeration, because we would have to include not only thesecases
(likeadversepossession)in whichsomeinstitution has alreadyprovided
thatprofitcan be gained througha wrong,but also thosenumberless
imaginary casesin whichwe knowin advancethattheprinciplewould
not hold. Listingsomeof thesemightsharpenour senseof the princi-
ple'sweight(I shallmentionthatdimensionin a moment),but it would
not make fora moreaccurateor completestatementof the principle.
A principlelike "No man mayprofitfromhis own wrong"does not
evenpurportto setout conditionsthatmake its applicationnecessary.
Rather,it statesa reason thatarguesin one direction,but does not
necessitatea particulardecision.If a man has or is about to receive
something, as a directresultof somethingillegalhe did to get it, then
that is reason which the law will take into account in deciding
a
whetherhe should keep it. There may be otherprinciplesor policies
arguingin theotherdirection-a policyof securingtitle,forexample,
or a principlelimitingpunishmentto what the legislaturehas stipu-
lated.If so, our principlemaynot prevail,but thatdoes notmean that
it is not a principleof our legal system, becausein thenextcase,when
thesecontravening considerations are absentor lessweighty, theprinci-
ple maybe decisive. All that is meant, when we say that a particular
principleis a principleof our law, is thatthe principleis one which
officialsmusttake into account,if it is relevant,as a consideration in-
cliningin one directionor another.
The logical distinctionbetweenrules and principlesappearsmore
clearlywhenwe considerprinciplesthatdo not even look like rules.
Considertheproposition, set out under"(d)" in the excerptsfromthe
Henningsenopinion,that"the manufacturer is under a special obli-
gation in connection with the construction, promotionand sale of

his cars."This does not even purportto definethe specificduties such
a special obligationentails,or to tell us what rightsautomobilecon-
sumersacquire as a result. It merelystates-and this is an essential
link in the Henningsen argument-that automobile manufacturers
mustbe held to higherstandardsthan othermanufacturers, and are
less entitledto relyon the competingprincipleof freedomof contract.
It does not mean that theymay neverrely on that principle,or that
courts may rewriteautomobile purchasecontractsat will; it means
only that if a particularclause seems unfairor burdensome,courts
have less reasonto enforcethe clause than if it were for the purchase
of neckties.The "special obligation"countsin favor,but does not in
itselfnecessitate,a decisionrefusingto enforcethe termsof an auto-
mobile purchasecontract.
This firstdifferencebetween rules and principlesentails another.
Principles have a dimension that rules do not-the dimension of
weightor importance.When principlesintersect(the policy of pro-
tectingautomobileconsumersintersecting with principlesof freedom
of contract,forexample),one who mustresolvethe conflicthas to take
into account the relativeweightof each. This cannot be, of course,
an exact measurement, and the judgmentthat a particularprinciple
or policyis moreimportantthan anotherwill oftenbe a controversial
one. Nevertheless,it is an integralpart of the conceptof a principle
that it has thisdimension,that it makes sense to ask how important
or how weightyit is.
Rules do not have thisdimension.We can speak of rules as being
functionallyimportantor unimportant(the baseball rule that three
strikesare out is more importantthan the rule that runnersmay
advance on a balk, because the game would be much more changed
with the firstrule altered than the second). In this sense, one legal
rule may be more importantthan anotherbecause it has a greateror
more importantrole in regulatingbehavior.But we cannot say that
one rule is more importantthan anotherwithinthe systemof rules,
so thatwhen two rules conflictone supercedesthe other by virtueof
itsgreaterweight.If two rules conflict,one of themcannotbe a valid
rule. The decisionas to whichis valid, and whichmustbe abandoned
or recast,must be made by appealing to considerationsbeyond the
rules themselves. A legal systemmightregulatesuch conflicts by other
rules, which prefer the rule enacted by the higherauthority, or the
rule enactedlater,or the morespecificrule, or somethingof thatsort.
A legal systemmay also preferthe rule supportedby the more im-
portantprinciples.(Our own legal systemuses both of these tech-
niques.)

It is not alwaysclear fromthe formof a standardwhetherit is a

ruleor a principle."A will is invalidunlesssignedby threewitnesses"
is notverydifferent in formfrom"A man maynotprofitfromhis own
wrong,"but one who knowssomethingof Americanlaw knowsthat
he must take the firstas statinga rule and the second as statinga
principle.In manycases the distinctionis difficult to make-it may
not have been settledhow the standardshouldoperate,and thisissue
may itselfbe a focus of controversy. The firstamendmentto the
United States Constitution containsthe provisionthatCongressshall
notabridgefreedomofspeech.Is thisa rule,so thatif a particularlaw
does abridgefreedomof speech,it followsthatit is unconstitutional?
Those who claim thatthe firstamendmentis "an absolute"saythatit
mustbe takenin thisway,thatis, as a rule. Or does it merelystate
a principle,so thatwhen an abridgementof speech is discovered,it
is unconstitutional unless the contextpresentssome otherpolicy or
principlewhichin the circumstances is weightyenoughto permitthe
abridgement? That is the positionof those who argue for what is
called the "clear and presentdanger" test or some other formof
"balancing."
Sometimesa rule and a principlecan play much the same role,
and the difference betweenthem is almosta matterof formalone.
The firstsectionof the ShermanAct statesthateverycontractin re-
straintof tradeshall be void. The SupremeCourt had to make the
decisionwhetherthisprovisionshouldbe treatedas a rule in its own
terms(strikingdown everycontract"which restrainstrade," which
almostany contractdoes) or as a principle,providinga reason for
strikingdown a contractin the absenceof effective contrarypolicies.
The Court construedthe provisionas a rule, but treatedthatrule as
containingthe word "unreasonable,"and as prohibitingonly "unrea-
sonable" restraints of trade.19This allowed the provisionto function
logicallyas a rule (whenevera courtfindsthattherestraintis "unrea-
sonable"it is bound to hold thecontractinvalid)and substantiallyas a
principle(a courtmusttake intoaccounta varietyof otherprinciples
and policiesin determining in particular
whethera particularrestraint
economiccircumstances is "unreasonable").
Words like "reasonable,""negligent,""unjust," and "significant"
oftenperform just thisfunction.Each of thesetermsmakesthe appli-
cation of the rule which containsit depend to some extent upon
principlesor policies lyingbeyondthe rule, and in this way makes
thatrule itselfmorelike a principle.But theydo not quite turnthe
19 Standard Oil v. United States, 221 U.S. 1, 60 (1911); United States v. American
Tobacco Co., 221 US. 106, 180 (1911).

rule into a principle,because even the least confiningof these terms

restrictsthe kind of other principlesand policies on which the rule
depends.If we are bound by a rule thatsaysthat"unreasonable"con-
tractsare void, or thatgrossly"unfair"contractswill not be enforced,
much more judgment is required than if the quoted termswere
omitted.But supposea case in whichsome considerationof policyor
principlesuggeststhata contractshould be enforcedeven thoughits
restraintis not reasonable,or even though it is grosslyunfair. En-
forcingthese contractswould be forbiddenby our rules, and thus
permittedonly if theseruleswere abandoned or modified.If we were
dealing,however,not with a rule but with a policyagainstenforcing
unreasonablecontracts, or a principlethatunfaircontractsoughtnot
to be enforced,the contractscould be enforcedwithoutalterationof
the law.
IV. PRINCIPLES AND THE CONCEPT OF LAW
Once we identifylegal principlesas separatesortsof standards,dif-

ferentfromlegal rules,we are suddenlyaware of themall around us.
Law teachersteach them,lawbooks cite them,legal historianscele-
brate them.But theyseem most energetically at work,carryingmost
weight,in difficult lawsuitslike Riggs and Henningsen.In cases like
these,principlesplay an essentialpart in argumentssupportingjudg-
mentsabout particularlegal rightsand obligations.Afterthe case is
decided,we maysay thatthe case standsfora particularrule (e.g., the
rule that one who murdersis not eligible to take under the will of
his victim).But the rule does not exist beforethe case is decided; the
court cites principlesas its justificationfor adoptingand applyinga
new rule. In Riggs, the court cited the principle that no man may
profitfromhis own wrongas a backgroundstandardagainstwhich to
read the statuteof wills and in thiswayjustifieda new interpretation
of thatstatute.In Henningsen,the courtcited a varietyof intersecting
principlesand policies as authorityfor a new rule respectingmanu-
facturer'sliabilityforautomobiledefects.
An analysisof the conceptof legal obligationmusttherefore account
for the importantrole of principlesin reachingparticulardecisions
of law. There are two verydifferent tackswe mighttake.
(a) We might treat legal principlesthe way we treat legal rules
and say that some principlesare binding as law and must be taken
into account by judges and lawyerswho make decisionsof legal obli-
gation. If we took this tack,we should say that in the United States,
at least,the "law" includesprinciplesas well as rules.
(b) We might,on the otherhand, denythatprinciplescan be bind-

The University [Vol. 5,5:14
ing the way some rulesare. We would say,instead,thatin cases like
Riggs or Henningsenthe judge reachesbeyondthe rules that hieis
bound to apply (reaches,that is, beyond the "law") for extra-legal
principleshe is freeto followif he wishes.
One mightthinkthatthereis not much difference betweenthese
two lines of attack,thatit is only a verbalquestionof how one wants
to use the word "law." But thatis a mistake,because the choice be-
tweenthesetwoaccountshas thegreatestconsequencesforan analysis
of legal obligation.It is a choice betweentwo conceptsof a legal
principle,a choicewe can clarifybycomparingit to a choicewe might
make betweentwo conceptsof a legal rule. We sometimessay of
someonethathe "makesit a rule" to do something,when we mean
that he has chosen to followa certainpractice.We mightsay that
someonehas made it a rule,forexample,to run a mile beforebreak-
fastbecausehe wantsto be healthyand believesin a regimen.We do
notmean,whenwe saythis,thathe is bound by therule thathe must
run a mile beforebreakfast, or even that he regardsit as binding
upon him. Acceptinga rule as bindingis somethingdifferent from
makingit a rule to do something.If we use Hart's example again,
thereis a difference betweensayingthat Englishmenmake it a rule
to see a movie once a week,and sayingthatthe Englishhave a rule
thatone mustsee a movieonce a week.The secondimpliesthatif an
Englishmandoes not followthe rule,he is subjectto criticismor cen-
sure,but the firstdoes not. The firstdoes not exclude the possibility
of a sortof criticism-wecay say thatone who does not see movies
is neglectinghis education-but we do not suggestthat he is doing
something wrongjust in not followingtherule.20
If we thinkof the judges of a communityas a group,we could
describethe rules of law theyfollowin thesetwo different ways.We
could say,for instance,that in a certainstatethe judges make it a
rule not to enforcewillsunlessthereare threewitnesses.This would
not implythatthe rarejudge who enforcessuch a rule is doing any-
thingwrongjust forthatreason.On the otherhand we can say that
in thatstatea rule of law requiresjudges not to enforcesuch wills;
this does implythata judge who enforcesthemis doing something
wrong.Hart,Austinand otherpositivists, ofcourse,wouldinsiston this
latteraccountof legal rules;theywould not at all be satisfied withthe
"make it a rule" account. It is not a verbalquestionof whichaccount
is right.It is a questionof whichdescribesthe social situationmore
20 The distinctionis in substance the same as that made by Rawls, Two Concepts of
Rules, 64 PHILOSOPHICAL REv. 3 (1955).

accurately.Other importantissues turn on which descriptionwe ac-

cept. If judges simply"make it a rule" not to enforcecertaincontracts,
forexample,then we cannot say,beforethe decision,that anyone is
"entitled"to thatresult,and that propositioncannot enter into any
justificationwe mightofferfor the decision.
The two lines of attackon principlesparallel thesetwo accountsof
rules. The firsttack treatsprinciplesas bindingupon judges, so that
theyare wrongnot to apply the principleswhen theyare pertinent.
The second tack treatsprinciplesas summariesof what most judges
"make it a principle"to do when forcedto go beyond the standards
that bind them. The choice between these approaches will affect,
perhaps even determine,the answer we can give to the question
whetherthejudge in a hard case like Riggs or Henningsenis attempt-
ing to enforcepre-existing legal rightsand obligations.If we take the
firsttack,we are stillfreeto argue thatbecause such judges are apply-
ing bindinglegal standardstheyare enforcinglegal rightsand obliga-
tions.But ifwe take the second,we are out of courton thatissue,and
we must acknowledgethat the murderer'sfamilyin Riggs and the
manufacturer in Henningsenwere deprivedof theirpropertyby an
act of judicial discretionapplied ex post facto.This may not shock
manyreaders-the notionof judicial discretionhas percolatedthrough
the legal community-but it does illustrateone of the most nettle-
some of the puzzles that drive philosophersto worryabout legal
obligation.If takingpropertyaway in cases like thesecannotbe justi-
fied by appealing to an establishedobligation,another justification
must be found,and nothingsatisfactory has yet been supplied.
In my skeletondiagramof positivism,previouslyset out, I listed
the doctrineof judicial discretionas the second tenet.Positivistshold
thatwhen a case is not coveredby a clear rule, a judge mustexercise
his discretionto decide thatcase by what amountsto a freshpiece of
legislation. There may be an importantconnection between this
doctrineand the question of which of the two approachesto legal
principleswe musttake. We shall thereforewant to ask whetherthe
doctrineis correct,and whetherit impliesthe second approach,as it
seems on its face to do. En route to these issues,however,we shall
have to polish our understandingof the conceptof discretion.I shall
tryto showhow certainconfusionsabout thatconcept,and in particu-
lar a failure to discriminatedifferentsenses in which it is used,
accountforthe popularityof the doctrineof discretion.I shall argue
that in the sense in which the doctrinedoes have a bearing on our
treatmentof principles,it is entirelyunsupportedby the arguments
the positivistsuse to defendit.

V. DISCRETION
The conceptofdiscretionwas liftedby the positivists fromordinary

language,and to understandit we mustput it back in habitatfor a
moment.What does it mean, in ordinarylife, to say that someone
"has discretion"?The firstthingto noticeis that the conceptis out
of place in all but veryspecialcontexts.For example,you would not
say thatI eitherdo or do not have discretionto choose a house for
myfamily.It is not true thatI have "no discretion"in makingthat
choice,and yetit would be almostequallymisleadingto say thatI do
havediscretion. The conceptofdiscretionis at homein onlyone sortof
context:whensomeoneis in generalchargedwithmakingdecisionssub-
ject to standardssetbya particularauthority. It makessenseto speakof
a
thediscretionof sergeant who is subjectto of superiors,
orders or the
discretionof a sportsofficialor contestjudge who is governedby a
rule book or the termsof the contest.Discretion,like the hole in a
doughnut,does not existexceptas an area leftopen by a surrounding
belt of restriction.It is thereforea relativeconcept.It alwaysmakes
sense to ask, "Discretionunder which standards?"or "Discretionas
to whichauthority?" Generallythe contextwill make the answerto
thisplain,but in somecases the official mayhave discretionfromone
standpointthoughnot fromanother.
Like almostall terms,theprecisemeaningof "discretion"is affected
by featuresof the context.The termis alwayscolored by the back-
groundof understoodinformation againstwhichit is used. Although
the shadingsare many,it will be helpfulfor us to recognizesome
grossdistinctions.
Sometimeswe use "discretion"in a weak sense,simplyto say that
forsomereasonthestandardsan official mustapplycannotbe applied
mechanically but demandtheuse ofjudgment.We use thisweaksense
when the contextdoes not alreadymake thatclear,when the back-
groundour audienceassumesdoes not containthatpiece of informa-
tion.Thus we mightsay,"The sergeant'sorderslefthim a greatdeal
of discretion,"to thosewho do not knowwhat the sergeant'sorders
were or who do not know somethingthatmade those ordersvague
or hard to carryout. It would make perfectsense to add, by way of
amplification,that the lieutenanthad orderedthe sergeantto take
his fivemostexperiencedmen on patrolbut thatit was hard to deter-
minewhichwerethe mostexperienced.
Sometimeswe use the termin a different weak sense,to say only
thatsome officialhas finalauthorityto make a decision and cannot
be reviewedand reversedby any other official.We speak this way

when the officialis part of a hierarchyof officialsstructuredso that

some have higherauthoritybut in whichthe patternsof authorityare
different fordifferentclasses of decision.Thus we mightsay that in
baseball certaindecisions,like the decision whetherthe ball or the
runner reached second base first,are left to the discretionof the
second base umpire,if we mean that on this issue the head umpire
has no powerto substitutehis own judgmentifhe disagrees.
I call both of thesesensesweak to distinguishthemfroma stronger
sense.We use "discretion"sometimesnot merelyto say thatan official
mustuse judgmentin applyingthe standardsset him by authority, or
thatno one will reviewthatexerciseof judgment,but to say that on
some issue he is simplynot bound by standardsset by the authority
in question. In this sense we say that a sergeanthas discretionwho
has been told to pick any fivemen for patrol he chooses or that a
judge in a dog showhas discretionto judge airedalesbeforeboxersif
the rules do not stipulatean order of events.We use this sense not
to commenton the vaguenessor difficulty of the standards,or on who
has the finalword in applyingthem,but on theirrange and the de-
cisionstheypurportto control.If the sergeantis told to take the five
most experiencedmen, he does not have discretionin this strong
sense because thatorderpurportsto governhis decision.The boxing
refereewho must decide which fighterhas been the more aggressive
does not have discretion,in thestrongsense,forthe samereason.2'
If anyone said that the sergeantor the refereehad discretionin
thesecases,we should have to understandhim, if the contextpermit-
ted,as usingthe termin one of the weak senses.Suppose,forexample,
the lieutenantorderedthe sergeantto selectthe fivemen he deemed
mostexperienced,and then added thatthe sergeanthad discretionto
choose them.Or the rules providedthatthe refereeshould award the
round to the moreaggressivefighter, withdiscretionin selectinghim.
We should have to understandthese statementsin the second weak
sense,as speakingto the question of reviewof the decision.The first
weak sense-that the decisionstake judgment-would be otiose,and
the third,strongsense is excluded by the statementsthemselves.
We must avoid one temptingconfusion.The strongsense of dis-
cretionis not tantamountto license,and does not exclude criticism.
Almostanysituationin whicha personacts (includingthosein which
21 I have not spoken of that jurisprudential favorite,"limited" discretion,because that
if we rememberthe relativityof discretion.Suppose
concept presentsno special difficulties
the sergeant is told to choose from "amongst" experienced men, or to "take experience
into account." We might say either that he has (limited) discretion in picking his patrol,
or (full) discretion to either pick amongst experienced men or decide what else to take
into account.

thereis no question of decision under special authority, and so no
questionof discretion)makesrelevantcertainstandardsof rationality,
fairness,and effectiveness.We criticizeeach other'sacts in termsof
thesestandards, and thereis no reasonnot to do so when the actsare
withinthe centerratherthanbeyondthe perimeterof the doughnut
of special authority.So we can say that the sergeantwho was given
discretion(in the strongsense) to pick a patrol did so stupidlyor
maliciouslyor carelessly,or thatthe judge who had discretionin the
order of viewingdogs made a mistakebecause he took boxersfirst
althoughtherewere only threeairedalesand manymore boxers.An
official'sdiscretionmeans not that he is free to decide withoutre-
courseto standardsof senseand fairness, but onlythathis decisionis
not controlledby a standardfurnished by the particularauthoritywe
have in mind when we raise the question of discretion.Of coursethis
lattersortof freedomis important;that is whywe have the strong
sense of discretion.Someone who has discretionin this thirdsense
can be criticized,but not forbeingdisobedient,as in the case of the
soldier.He can be said to have made a mistake,but not to have de-
priveda participantof a decisionto whichhe was entitled,as in the
case of a sportsofficialor contestjudge.
We maynow retum,withtheseobservationsin hand, to the posi-
tivists'doctrineof judicial discretion.That doctrineargues that if
a case is not controlledby an establishedrule, the judge mustdecide
it by exercisingdiscretion.We want to examinethisdoctrineand to
testits bearingon our treatment of principles;but firstwe mustask
in whichsenseof discretionwe are to understandit.
Some nominalistsargue that judges alwayshave discretion,even
whena clear rule is in point,becausejudges are ultimatelythe final
arbitersof the law. This doctrineof discretionuses the secondweak
senseof thatterm,becauseit makesthepointthatno higherauthority
reviewsthedecisionsof the highestcourt.It therefore has no bearing
on the issueof how we accountforprinciples,any morethanit bears
on how we accountforrules.
The positivists do not mean theirdoctrinethis way,because they
say thata judge has no discretionwhena clear and establishedrule is
available. If we attendto the positivists'argumentsfor the doctrine
we may suspectthat theyuse discretionin the firstweak sense to
mean onlythatjudgesmustsometimesexercisejudgmentin applying
legal standards.Their argumentscall attentionto the factthatsome
rulesof law are vague (ProfessorHart,forexample,saysthatall rules
of law have "open texture"),and thatsomecasesarise (like Henning-
sen) in whichno established rule seemsto be suitable.They emphasize

thatjudges must sometimesagonize over pointsof law, and that two
equally trainedand intelligentjudges will oftendisagree.
These points are easily made; they are commonplaceto anyone
who has any familiarity with law. Indeed, that is the difficulty with
assumingthatpositivistsmean to use "discretion"in thisweak sense.
The propositionthatwhen no clear rule is available discretionin the
sense of judgmentmust be used is a tautology.It has no bearing,
moreover,on the problemof how to account for legal principles.It
is perfectlyconsistentto say thatthe judge in Riggs,forexample,had
to use judgment,and thathe was bound to followthe principlethat
no man may profitfromhis own wrong.The positivistsspeak as if
theirdoctrineof judicial discretionis an insightratherthan a tautol-
ogy,and as if it does have a bearingon the treatmentof principles.
Hart, forexample,saysthatwhen the judge's discretionis in play,we
can no longerspeak of his being bound by standards,but must speak
rather of what standardshe "characteristically uses."22Hart thinks
that when judges have discretion,the principlesthey cite must be
treatedon our secondapproach,as what courts"make it a principle"
to do.
It thereforeseems that positivists,at least sometimes,take their
doctrinein the third,strongsense of discretion.In thatsense it does
bear on the treatment of principles;indeed,in thatsense it is nothing
less than a restatement of our second approach.It is the same thing
to say thatwhen a judge runs out of rules he has discretion,in the
sense that he is not bound by any standardsfromthe authorityof
law, as to say thatthe legal standardsjudges cite otherthan rules are
not binding on them.
So we mustexaminethe doctrineof judicial discretionin the strong
sense. (I shall henceforthuse the term "discretion"in that sense.)
Do the principlesjudges cite in caseslike Riggsor Henningsencontrol
theirdecisions,as the sergeant'sordersto take the most experienced
men or the referee'sdutyto choose the moreaggressivefighter control
the decisions of these officials?What argumentscould a positivist
supplyto show thattheydo not?
(1) A positivistmightargue that principlescannot be binding or
obligatory.That would be a mistake.It is alwaysa question,of course,
whetherany particularprincipleis in fact binding upon some legal
official.But there is nothingin the logical characterof a principle
thatrendersit incapable of binding him. Suppose that the judge in
Henningsenhad failedto take any accountof the principlethatauto-
mobile manufacturers have a special obligation to their consumers,
22 H.L.A. HART, THE CONCEPT OF IAW 144 (1961).

or theprinciplethatthecourtsseekto protectthosewhosebargaining
positionis weak,but had simplydecided forthe defendantby citing
the principleof freedomof contractwithoutmore.His criticswould
not have been contentto pointout thathe had not takenaccountof
considerations thatotherjudgeshave been attendingto forsome time.
Mostwouldhave said thatit was hisdutyto takcthemeasureof these
principlesand thatthe plaintiff was entitledto have him do so. We
mean no more,whenwe saythata rule is bindingupon a judge, than
thathe mustfollov it if it applies,and thatif he does not he will on
thataccounthave made a mistake.
It will not do to saythatin a case like Henningsen thecourtis only
"morally"obligatedto takeparticularprinciplesinto account,or that
it is "institutionally" obligated,or obligatedas a matterof judicial
"craft,"or somethingof thatsort.The questionwill stillremainwhy
thistypeof obligation(whateverwe call it) is different fromthe obli-
gation thatrules imposeupon judges,and why it entitlesus to say
that principlesand policies are not part of the law but are merely
extra-legal standards"courtscharacteristically use."
(2) A positivistmightargue thateven thoughsome principlesare
binding,in thesensethatthejudge musttaketheminto account,they
cannot determinea particularresult.This is a harderargumentto
assessbecause it is not clear what it means fora standardto "deter-
mine" a result.Perhapsit meansthatthe standarddictates the result
wheneverit applies so thatnothingelse counts.If so, then it is cer-
tainlytruethatindividualprinciplesdo notdetermineresults,but that
is onlyanotherwayof sayingthatprinciplesare not rules.Only rules
dictateresults, comewhatmay.Whena contrary resulthasbeenreached,
therule has been abandonedor changed.Principlesdo not workthat
way;theyinclinea decisionone way,thoughnotconclusively, and they
surviveintactwhentheydo not prevail.This seemsno reasonforcon-
cludingthatjudgeswhomustreckonwithprincipleshavediscretionbe-
causea setofprinciplescan dictatea result.If a judge believesthatprin-
cipleshe is boundtorecognizepointin one directionand thatprinciples
pointingin theotherdirection,ifany,are notofequal weight,thenhe
mustdecideaccordingly, just as he mustfollowwhathe believesto be a
bindingrule.He may,ofcourse,be wrongin hisassessment oftheprinci-
ples,buthe mayalso be wrongin hisjudgmentthattherule is binding.
The sergeantand the referee,we mightadd, are oftenin the same
boat. No one factordictateswhichsoldiersare the mostexperienced
or whichfighter the moreaggressive. mustmake judg-
These officials
mentsof the relativeweightsof thesevariousfactors;theydo not on
thataccounthave discretion.

(3) A positivistmightargue that principlescannot count as law

because theirauthority,and even more so theirweight,are congen-
itally controversial.It is true that generallywe cannot demonstrate
the authorityor weightof a particularprincipleas we can sometimes
demonstratethevalidityof a rule by locatingit in an act of Congress
or in the opinion of an authoritativecourt. Instead,we make a case
for a principle,and for its weight,by appealing to an amalgam of
practiceand otherprinciplesin which the implicationsof legislative
and judicial historyfigurealong with appeals to communitypractices
and understandings. There is no litmuspaper for testingthe sound-
ness of such a case-it is a matterof judgment,and reasonablemen
may disagree. But again this does not distinguishthe judge from
otherofficialswho do not have discretion.The sergeanthas no litmus
paper forexperience,the refereenone for aggressiveness. Neither of
thesehas discretion,because he is bound to reach an understanding,
controversialor not, of what his orders or the rules require, and
to act on thatunderstanding. That is the judge's dutyas well.
Of course,if the positivistsare rightin anotherof theirdoctrines-
the theorythatin each legal systemthereis an ultimatetestforbind-
ing law like ProfessorHart's rule of recognition-it follows that
principlesare not binding law. But the incompatibility of principles
with the positivists'theorycan hardlybe taken as an argumentthat
principlesmustbe treatedany particularway.That begs the question;
we are interestedin the statusof principlesbecause we want to evalu-
ate the positivists'model. The positivistcannotdefendhis theoryof a
rule of recognitionby fiat; if principlesare not amenable to a test
he mustshow some otherreasonwhytheycannotcount as law. Since
principlesseem to play a role in argumentsabout legal obligation
(witness,again,Riggsand Henningsen),a model thatprovidesforthat
role has some initial advantage over one that excludes it, and the
lattercannotproperlybe inveighedin its own support.
These are the mostobvious of the argumentsa positivistmightuse
forthe doctrineof discretionin the strongsense,and for the second
approach to principles.I shall mentionone strongcounter-argument
againstthatdoctrineand in favorof the firstapproach.Unless at least
some principlesare acknowledgedto be binding upon judges, re-
quiring themas a set to reach particulardecisions,then no rules,or
veryfewrules,can be said to be bindingupon themeither.
In most American jurisdictions,and now in England also, the
highercourtsnot infrequently reject establishedrules. Common law
rules-those developedby earliercourtdecisions-are sometimesover-
ruled directly,and sometimesradically altered by furtherdevelop-

The University [Vol. 35:14
ment.Statutory rulesare subjectedto interpretation and reinterpreta-
tion,sometimesevenwhentheresultis not to carryout whatis called
the "legislativeintent."23If courtshad discretionto changeestablished
rules,thentheseruleswould ofcoursenot be bindingupon them,and
so would not be law on the positivists'model. The positivistmust
thereforeargue that there are standards,themselvesbinding upon
judges,thatdeterminewhen a judge mayoverruleor alteran estab-
lishedrule,and whenhe maynot.
When, then,is a judge permittedto change an existingrule of
law?Principlesfigurein the answerin twoways.First,it is necessary,
thoughnot sufficient, that the judge findthat the changewould ad-
vance some policyor servesome principle,whichpolicyor principle
thusjustifiesthechange.In Riggsthechange(a new interpretation of
the statuteof wills)was justifiedby the principlethatno man should
profitfromhis own wrong;in Henningsencertainrules about auto-
mobilemanufacturer's liabilitywerealteredon the basis of the princi-
ples and policiesI quoted fromtheopinionof thecourt.
But not any principlewill do to justifya change,or no rule would
everbe safe.There mustbe someprinciplesthatcountand othersthat
do not,and theremustbe some principlesthatcount formorethan
others.It could not dependon thejudge's own preferences amongsta
sea of respectableextra-legal standards,any one in principleeligible,
because if that were the case we could not say that any rules were
binding.We could alwaysimaginea judge whosepreferences amongst
extra-legalstandards were such as would justifya shiftor radical re-
interpretation of even the mostentrenchedrule.
Second,any judge who proposesto change existingdoctrinemust
take account of some importantstandardsthat argue against de-
parturesfromestablisheddoctrine,and these standardsare also for
themostpartprinciples.They includethe doctrineof "legislativesu-
premacy,"a set of principlesand policies thatrequire the courtsto
pay a qualifieddeferenceto the acts of the legislature.They also in-
clude the doctrineof precedent,anotherset of principlesand policies
reflecting of consistency.
the equitiesand efficiencies The doctrinesof
legislativesupremacy and precedent incline toward the status quo,
each withinits sphere,but theydo not commandit. Judgesare not
free,however,to pick and chooseamongstthe principlesand policies
thatmake up thesedoctrines-iftheywere,again, no rule could be
said to be binding.
Consider,therefore, whatsomeoneimplieswho saysthata particu-
23 See Wellington & Albert, Statutory Interpretationand the Political Process: A
Comment on Sinclair v. Atkinson,72 YAzU L.J. 1547 (1963).

lar rule is binding. He may implythat the rule is affirmatively sup-

portedby principlesthe court is not freeto disregard,and whichare
collectivelymore weightythan other principles that argue for a
change. If not, he implies that any change would be condemnedby
a combinationof conservativeprinciplesof legislativesupremacyand
precedentthat the court is not free to ignore. Very often,he will
implyboth,forthe conservativeprinciples,being principlesand not
rules,are usuallynot powerfulenough to save a commonlaw rule or
an agingstatutethatis entirelyunsupportedby substantiveprinciples
the court is bound to respect.Eitherof theseimplications,of course,
treatsa body of principlesand policies as law in the sense thatrules
are; it treatsthemas standardsbinding upon the officialsof a com-
munity,controllingtheirdecisionsof legal rightand obligation.
We are leftwiththisissue. If the positivists'theoryof judicial dis-
cretionis eithertrivialbecause it uses "discretion"in a weak sense,
or unsupportedbecause the various argumentswe can supply in its
defensefall short,why have so many carefuland intelligentlawyers
embraced it? We can have no confidencein our treatmentof that
theoryunlesswe can deal withthatquestion.It is not enough to note
(althoughperhapsit contributesto the explanation)that "discretion"
has different sensesthat may be confused.We do not confusethese
senseswhenwe are not thinkingabout law.
Part of the explanation,at least,lies in a lawyer'snatural tendency
to associatelaws and rules,and to thinkof "the law" as a collection
or systemof rules. Roscoe Pound, who diagnosed this tendencylong
ago, thoughtthatEnglishspeakinglawyerswere trickedinto it by the
factthatEnglishuses the same word,changingonly the article,for"a
law" and "the law."24 (Other languages,on the contrary,use two
words: "loi" and "droit,"'for example, and "Gesetz" and "Recht.")
This may have had its effect,with the English speakingpositivists,
because the expression"a law" certainlydoes suggest-arule. But the
principalreason forassociatinglaw with rules runs deeper, and lies,
I think,in the factthatlegal educationhas fora long time consisted
of teachingand examiningthose establishedrules that formthe cut-
ting edge of law.
In any event,if a lawyerthinksof law as a systemof rules,and yet
recognizes,as he must, that judges change'old rules and introduce
new ones, he will come naturallyto the theoryof judicial discretion
in the strongsense.In thoseothersystemsof rules with which he has
experience(like games),the rules are the only special authoritythat
24 R. POUND, AN INTRODUCTIONTO THE PHILOSOPHY OF LAw 56 (rev. ed. 1954).

governofficialdecisions,so thatif an umpirecould changea rule,he

would havediscretionas to thesubjectmatterof thatrule.Anyprinci-
ples umpiresmightmentionwhenchangingtheruleswould represent
only their"characteristic" preferences.Positiviststreatlaw like base-
ball revisedin thisway.
There is another,more subtle consequenceof this initial assump-
tion thatlaw is a systemof rules. When the positivists do attendto
principlesand policies,they treat themas rules manque. They assume
thatif theyare standardsof law theymustbe rules,and so theyread
themas standardsthatare tryingto be rules.When a positivisthears
someoneargue that legal principlesare part of the law, he under-
standsthis to be an argumentfor what he calls the "higherlaw"
theory, thattheseprinciplesare therulesof a law above the law.25He
refutesthis theoryby pointingout thatthese "rules" are sometimes
followedand sometimesnot, thatforevery"rule" like "no man shall
profitfromhis own wrong"thereis anothercompeting"rule" like
"the law favorssecurityof title,"and thatthereis no way to testthe
validityof "rules" like these.He concludesthattheseprinciplesand
policiesare not valid rules of a law above the law, whichis true,be-
cause theyare not rulesat all. He also concludesthattheyare extra-
legal standardswhicheach judge selectsaccordingto his own lights
in the exerciseof his discretion,whichis false.It is as if a zoologist
had provedthatfishare not mammals,and thenconcludedthatthey
are reallyonlyplants.
VI. THE RULE OF RECOGNITION

This discussionwas provokedby our two competingaccountsof
legal principles.We have been exploringthe second account,which
the positivistsseem to adopt throughtheirdoctrineof judicial dis-
cretion,and we have discoveredgravedifficulties. It is timeto return
to the forkin the road. What if we adopt the first approach?What
would the consequencesof thisbe forthe skeletalstructureof posi-
tivism?Of coursewe should have to drop the second tenet,the doc-
trineof judicial discretion(or, in the alternative,to make plain that
thedoctrineis to be read merelyto saythatjudgesmustoftenexercise
judgment).Would we also have to abandon or modifythe firsttenet,
the propositionthatlaw is distinguished by testsof the sortthatcan
be setout in a masterrule like Professor Hart'srule of recognition? If
principlesof the Riggsand Henningsensort are to count as law, and
25 See, e.g., Dickinson, The Law Behind Law (pts. 1 &e2), 29 COLUM.L. REV. 112, 254
(1929).

we are neverthelessto preservethe notion of a masterrule for law,
then we must be able to deploy some test that all (and only) the
principlesthatdo count as law meet. Let us begin with the testHart
suggestsfor identifying valid rules of law, to see whetherthese can
be made to workforprinciplesas well.
Mostrulesof law, accordingto Hart,are valid because some compe-
tentinstitutionenacted them.Some were createdby a legislature,in
the formof statutory enactments.Otherswere createdby judges who
formulatedthemto decide particularcases,and thusestablishedthem
as precedentsfor the future.But this testof pedigreewill not work
forthe Riggsand Henningsenprinciples.The originof theseas legal
principleslies not in a particulardecisionof somelegislatureor court,
but in a senseof appropriateness developedin the professionand the
public over time. Their continued power depends upon this sense of
appropriatenessbeing sustained. If it no longer seemed unfair to
allow people to profitby theirwrongs,or fairto place special burdens
upon oligopolies that manufacturepotentiallydangerous machines,
theseprincipleswould no longer play much of a role in new cases,
even if theyhad neverbeen overruledor repealed. (Indeed, it hardly
makes sense to speak of principleslike theseas being "overruled"or
"repealed."When theydeclinetheyare eroded,not torpedoed.)
True, if we were challengedto back up our claim thatsome princi-
ple is a principleof law, we would mentionany priorcases in which
thatprinciplewas cited,or figuredin the argument.We would also
mentionany statutethat seemed to exemplifythat principle (even
betterif the principlewas cited in the preambleof the statute,or in
thecommitteereportsor otherlegislativedocumentsthataccompanied
it). Unless we could findsome such institutionalsupport,we would
probablyfail to make out our case, and the more supportwe found,
the moreweightwe could claim forthe principle.
Yet we could not deviseany formulafortestinghow muchand what
kind of institutionalsupportis necessaryto make a principlea legal
principle,stillless to fixitsweightat a particularorderof magnitude.
We argue fora particularprincipleby grapplingwith a whole set of
shifting,developingand interactingstandards(themselvesprinciples
ratherthan rules) about institutionalresponsibility, statutoryinter-
pretation, the persuasive force of various sortsof precedent,the rela-
tion of all these to contemporary moral practices,and hostsof other
such standards.We could not bolt all of these togetherinto a single
"rule," even a complex one, and if we could the result would bear
littlerelationto Hart's pictureof a rule of recognition,which is the
picture of a fairlystable master rule specifying"some feature or

featurespossessionof which by a suggestedrule is taken as a con-

clusiveaffirmative indicationthatit is a rule ...."26
Moreover,thetechniqueswe applyin arguingforanotherprinciple
do not stand (as Hart's rule of recognitionis designedto) on an
entirelydifferent level fromthe principlestheysupport.Hart's sharp
distinctionbetweenacceptanceand validitydoes not hold. If we are
arguingforthe principlethata man shouldnot profitfromhis own
wrong,we could cite the actsof courtsand legislaturesthatexemplify
it, but thisspeaksas much to the principle'sacceptanceas itsvalidity.
(It seemsodd to speak of a principleas being valid at all, perhaps
because validityis an all-or-nothing concept,appropriatefor rules,
but inconsistent with a principle'sdimensionof weight.)If we are
asked(as we mightwell be) to defendthe particulardoctrineof prece-
dent,or the particulartechniqueof statutory thatwe
interpretation,
used in thisargument,we shouldcertainlycite the practiceof others
in using that doctrineor technique.But we should also cite other
generalprinciplesthatwe believe supportthatpractice,and this in-
troducesa note of validityinto the chord of acceptance.We might
argue,forexample,thatthe use we make of earliercases and statutes
is supportedby a particularanalysisof the point of the practiceof
legislationor the doctrineof precedent,or by the principlesof demo-
cratictheory,or by a particularpositionon the properdivisionof
authoritybetweennational and local institutions, or somethingelse
of thatsort.Nor is this path of supporta one-waystreetleading to
some ultimateprinciplerestingon acceptancealone. Our principles
of legislation,precedent,democracy,or federalismmight be chal-
lenged too; and if theywere we should argue forthem,not only in
termsof practice,but in termsof each otherand in termsof the im-
plicationsof trendsof judicial and legislativedecisions,even though
thislast would involveappealingto thosesame doctrinesof interpre-
tationwe justifiedthroughthe principleswe are now tryingto sup-
port. At this level of abstraction,in otherwords,principlesrather
hang togetherthan link together.
So eventhoughprinciplesdrawsupportfromtheofficial actsof legal
institutions,theydo not have a simpleor directenough connection
withtheseacts to framethatconnectionin termsof criteriaspecified
by someultimatemasterrule of recognition. Is thereany otherroute
bywhichprinciplesmightbe broughtundersucha rule?
Hart does say thata masterrule mightdesignateas law not only
rulesenactedby particularlegal institutions, but rules establishedby
26 H.L.A. HART, THE CONCEPr OF LAW 92 (1961).

customas well. He has in mind a problemthat botheredother posi-

tivists,includingAustin. Many of our most ancient legal rules were
neverexplicitlycreatedby a legislatureor a court.When theymade
their firstappearance in legal opinions and texts,theywere treated
as already being part of the law because they representedthe cus-
tomarypracticeof the community, or some specializedpart of it, like
the businesscommunity.(The examplesordinarilygiven are rules of
mercantilepractice,like the rules governingwhat rightsarise under
a standardformof commercialpaper.)27Since Austin thoughtthat
all law was the command of a determinatesovereign,he held that
thesecustomarypracticeswere not law until the courts(as agentsof
the sovereign)recognizedthem,and that the courtswere indulging
in a fictionin pretendingotherwise.But that seemed arbitrary.If
everyonethoughtcustommightin itselfbe law, the factthatAustin's
theorysaid otherwisewas not persuasive.
Hart reversedAustinon thispoint.The masterrule, he says,might
stipulatethatsome customcountsas law even beforethe courtsrecog-
nize it. But he does not face the difficulty this raises for his general
theorybecausehe does not attemptto set out thecriteriaa masterrule
mightuse for this purpose. It cannot use, as its only criterion,the
provisionthatthe communityregardthe practiceas morallybinding,
forthiswould not distinguishlegal customaryrules frommoral cus-
tomaryrules,and of coursenot all of the community'slong-standing
customary moralobligationsare enforcedat law. If,on theotherhand,
the testis whetherthe communityregardsthe customarypracticeas
legally binding,the whole point of the masterrule is undercut,at
least for this class of legal rules. The masterrule, says Hart, marks
the transformation froma primitivesocietyto one with law, because
it providesa test for determiningsocial rules of law other than by
measuringtheiracceptance.But if the masterrule says merelythat
whateverother rules the communityaccepts as legally binding are
legallybinding,thenit providesno such testat all, beyondthe testwe
should use were thereno masterrule. The masterrule becomes (for
thesecases) a non-ruleof recognition;we mightas well say thatevery
primitivesocietyhas a secondaryrule of recognition,namelythe rule
thatwhateveris acceptedas bindingis binding.Hart himself,in dis-
cussinginternationallaw, ridiculesthe idea thatsuch a rule could be
27 See Note, Custom and Trade Usage: Its Application to Commercial Dealings and
the Common Law, 55 COLUM.L. Rxv. 1192 (1955), and materials cited therein at 1193 n.l.
As that note makes plain, the actual practices of courts in recognizing trade customs
follow the pattern of applying a set of general principles and policies rather than a test
that could be captured as part of a rule of recognition.

by describingthe proposedrule as "an empty

a rule of recognition,
repetition of the mere fact that the society concerned . . . observes
certainstandardsof conductas obligatory rules."28
Hart's treatmentof customamounts,indeed,to a confessionthat
thereare at leastsomerulesof law thatare not bindingbecause they
are valid understandardslaid down by a masterrule but are binding
-like the masterrule-because theyare acceptedas bindingby the
community. This chipsat theneat pyramidalarchitecture we admired
in Hart's theory:we can no longersay thatonly the masterrule is
bindingbecauseof itsacceptance,all otherrulesbeingvalid underits
terms.
This is perhapsonly a chip, because the customary rules Hart has
in mind are no longera verysignificant part of the law. But it does
suggestthatHart would be reluctantto widenthedamageby bringing
underthehead of "custom"all thosecrucialprinciplesand policieswe
have been discussing.If he were to call thesepartof the law and yet
admitthattheonlytestof theirforcelies in thedegreeto whichthey
are acceptedas law by the community or some partthereof, he would
verysharplyreduce thatarea of the law over whichhis masterrule
held any dominion.It is not just thatall the principlesand policies
would escape its sway,thoughthatwould be bad enough.Once these
principlesand policies are accepted as law, and thus as standards
judges mustfollowin determining legal obligations,it would follow
thatruleslike thoseannounced for the firsttime in Riggs and Hen-
ningsenowe theirforceat least in partto the authorityof principles
and policies,and so not entirelyto the masterrule of recognition.
So we cannotadapt Hart's versionof positivismby modifying his
rule of recognitionto embraceprinciples.No testsof pedigree,re-
latingprinciplesto acts of legislation,can be formulated, nor can his
conceptof customary law, itselfan exceptionto the firsttenetof posi-
tivism,be made to servewithoutabandoningthat tenet altogether.
One morepossibility mustbe considered,however.If no rule of recog-
nitioncan providea testforidentifying principles,whynot say that
principlesare ultimate,and formthe rule of recognitionof our law?
The answerto the generalquestion"What is valid law in an Amer-
ican jurisdiction?"would then require us to state all the principles
(as well as ultimateconstitutional rules) in forcein thatjurisdiction
at the time,togetherwithappropriateassignments of weight.A posi-
tivistmight then the
regard complete set of thesestandards as therule
of recognitionof the jurisdiction.This solutionhas the attractionof
28 H.L.A. HART, THE CONCEPT OF LAW 230 (1961).

1967] The Model of Rutles 45
paradox,but of courseit is an unconditionalsurrender.If we simply
designateour rule of recognitionby the phrase "the completeset of
principlesin force,"we achieve only the tautologythat law is law.
If,instead,we triedactuallyto listall the principlesin forcewe would
fail. They are controversial,their weight is all important,they are
numberless,and theyshiftand changeso fastthatthe startof our list
would be obsoletebeforewe reachedthe middle.Even ifwe succeeded,
we would not have a key forlaw because therewould be nothingleft
forour keyto unlock.
I conclude that if we treat principlesas law we must reject the
positivists'firsttenet,that the law of a communityis distinguished
fromothersocial standardsby some testin the formof a masterrule.
We have alreadydecided thatwe mustthenabandon the second tenet
What
-the doctrineof judicial discretion-orclarifyit into triviality.
of the thirdtenet,the positivists'theoryof legal obligation?
This theoryholds that a legal obligation exists when (and only
when)an establishedrule of law imposessuchan obligation.It follows
fromthis thatin a hard case-when no such establishedrule can be
found-there is no legal obligationuntil the judge createsa new rule
for the future.The judge may apply thatnew rule to the partiesin
the case,but thisis ex postfactolegislation,not the enforcementof an
existing obligation.
The positivists'doctrineof discretion(in the strongsense) required
this view of legal obligation,because if a judge has discretionthere
can be no legal right or obligation-no entitlement-thathe must
enforce.Once we abandon thatdoctrine,hawever,and treatprinciples
as law, we raise the possibilitythat a legal obligationmightbe im-
posed by a constellationof principlesas well as by an establishedrule.
We mightwant to say thata legal obligationexistswheneverthe case
supportingsuch an obligation,in termsof bindinglegal principlesof
differentsorts,is strongerthanthecase againstit.
Of course,manyquestionswould have to be answeredbeforewe
could acceptthatview of legal obligation.If thereis no rule of recog-
nition,no testforlaw in thatsense,how do we decide whichprinciples
are to count, and how much, in making such a case? How do we
decide whetherone case is betterthan another?If legal obligation
restson an undemonstrablejudgmentof that sort,how can it pro-
vide a justificationfora judicial decision that one partyhad a legal
obligation?Does thisview of obligationsquare with the way lawyers,
judges and laymenspeak,and is it consistentwithour attitudesabout
moral obligation?Does thisanalysishelp us to deal with the classical
jurisprudentialpuzzlesabout the nature of law?

46 The Universityof Chicago Law Review
These questionsmustbe faced,but even the questionspromise

morethanpositivism on its own thesis,stops
provides.Positivism,
hardcasesthatsendus tolookfortheories
shortofjustthosepuzzling,
of law.Whenwe reachthesecases,thepositivist remitsus to a doc-
trineofdiscretionthatleadsnowhere and tellsnothing.His picture
oflawas a system
ofruleshasexerciseda tenaciousholdon ourimagi-
nation,perhapsthroughits verysimplicity. If we shakeourselves
loosefromthismodelofrules,we maybe able to builda modeltruer
to thecomplexityandsophistication
ofourownpractices.


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The Model of Rules

Author(s): Ronald M. Dworkin

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Lawyerslean heavilyon the connectedconceptsof legal rightand

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cedures. Must the Court, to be consistent,free all other prisoners

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use theseconcepts.They thinkthatwhen we speak of "the law," we

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But theirmodel differs mainlyin emphasisfromthe theoryfirstmade

Positivismhas a few central and organizingpropositionsas its

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tion can be found,which is in ultimatecontrolof all othergroups,

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have been createdin a mannerstipulatedby some secondaryrule are

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In this way Hart rescues the fundamentalsof positivismfrom

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quire property by his own crime."1lThe murdererdid not receivehis

11 Id. at 511, 22 N.E. at 190.

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The standardssetout in thesequotationsare not thesortwe thinkof

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are manylessdramaticexamples.If a man leavesone job, breakinga

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It is not alwaysclear fromthe formof a standardwhetherit is a

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rule into a principle,because even the least confiningof these terms

Once we identifylegal principlesas separatesortsof standards,dif-

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accurately.Other importantissues turn on which descriptionwe ac-

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The conceptofdiscretionwas liftedby the positivists fromordinary

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when the officialis part of a hierarchyof officialsstructuredso that

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(3) A positivistmightargue that principlescannot count as law

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lar rule is binding. He may implythat the rule is affirmatively sup-

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governofficialdecisions,so thatif an umpirecould changea rule,he

VI. THE RULE OF RECOGNITION

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featurespossessionof which by a suggestedrule is taken as a con-

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customas well. He has in mind a problemthat botheredother posi-

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by describingthe proposedrule as "an empty

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These questionsmustbe faced,but even the questionspromise

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