2.2 The problems of rule making
It goes without saying that making rules is a complicated process. Just how complicated is illustrated by the American legal theorist Professor Lon Fuller. In his book The Morality of Law, which was first published in 1964, he explored the relationship between law and morality, and the criteria by which we should evaluate a legal system (one form of a system of rules). In the passage you are going to read in Activity 2, Fuller tells the story of a fictional law-maker, Rex, who comes to the throne determined to make laws (rules) which will be effective and accepted by the society he governs. The purpose of this activity is to provide you with an opportunity to read a passage, understand it and answer some questions so as to help you better understand some of the difficulties involved in making rules.
Activity 2 Problems of the law-maker
Please read Reading 1: ‘The morality that makes law possible’, and answer the questions that follow.
Clickto open The morality that makes law possible (PDF, 0.1 MB, 5 pages).
What do you think the relevance of not having an education might be for a law-maker? (Section A)
Why do you think Rex thought it was important that there should be a pattern in the decisions he made? (Section B)
Why should it matter that the legal code Rex wants to create should not be a secret from those to whom it applies? (Section C)
Why do Rex's subjects criticise his decision not to apply the reasoning in cases coming before him to future cases? (Section D)
What criticisms are made of the code which Rex writes himself, and the one he writes with the help of others? (Section E)
What is the general nature of the criticisms levelled against Rex's revised code? (Section F)
What is the general nature of the problem set out in Section G?
Why should it matter that the decisions of Rex bear no relation to the code? (Section H)
You may have thought of one or more of the following (and you may have thought of others):
Education should cover the values of society, powers of reasoning and communication skills in addition to learning from experience. A law or rule which does not reflect these values, powers of reasoning skills and experiences is unlikely to be effective or command respect. A law-maker not having the benefit of some if not all of the above points would have difficulty making laws that were effective or respected.
Patterns in decisions indicate consistency, and consistency in rules is one of the values to which Twining and Miers refer in their discussion of the broader benefit which the embodiment of values in rules represents. A system of rules, whatever the values those rules represent, is ultimately a regulatory system – one designed to ensure social order and to guide social behaviour. If there is no pattern in decision making regulation becomes impossible.
Unless rules are public and accessible, those to whom the rules apply cannot hope to know whether the behaviour they are engaged in, or intend to engage in, is permitted or not. This is a different point from the phrase you may have heard: ‘ignorance of the law is no excuse’. This simply means that you cannot use as a defence in law the fact that you, personally, were unaware of a rule.
A system of rules such as a legal system needs to be predictable so that those governed by the system may organise their lives. Again, this relates to the broader benefit indicated by embodying values in rules.
The code Rex writes himself is criticised for being obscure and incomprehensible. Unless a rule is clear and can be generally understood, it is impossible for people to use it as a guide (which is what rules are for). The same is true of the code written by Rex's advisers, though for different reasons. A system of rules in which the rules contradict each other is not a system, and they are – arguably – not rules (though it is sometimes possible for different systems of rules to contradict each other, as is the case where different countries have different rules dealing with the same conduct).
The general criticisms would be that the code is unfair and unreasonable. To make rules which cannot, as a matter of fact, be complied with, does not provide guidance. Rather, it represents despotism and the exercise of absolute power. We will be considering the difference between rules and commands in Activity 5.
Unlike customs, formal rules do not evolve over time. Once they are made they apply unless and until they are repealed by another rule. This means that rules reflecting social attitudes at one particular time may not reflect the attitudes of a later time, because they may have changed. Similarly, rule-makers cannot anticipate the social and technical advances which take place over time and will constantly have to introduce new rules to deal with those (the introduction of laws governing embryo research and regulating surrogate motherhood are good examples of this problem). We will be considering this problem in more detail in Activity 5.
Put simply, there is no point in having a system of rules unless the person charged with interpreting and applying them uses them when making decisions. If that person does not use the code then we are back to where Rex started, simply making things up as he went along and with his subjects none the wiser about how they might behave.
In The Morality of Law (1969) Fuller summarises the consequences of Rex's failure to make law in the following passage:
The Consequences of Failure
Rex's bungling career as legislator and judge illustrates that the attempt to create and maintain a system of legal rules may miscarry in at least eight ways; there are in this enterprise, if you will, eight distinct routes to disaster. The first and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis. The other routes are: (2) a failure to publicize, or at least to make available to the affected party, the rules he is expected to observe; (3) the abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change; (4) a failure to make rules understandable; (5) the enactment of contradictory rules or (6) rules that require conduct beyond the powers of the affected party; (7) introducing such frequent changes in the rules that the subject cannot orient his action by them; and, finally, (8) a failure of congruence between the rules as announced and their actual administration.
A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all, except perhaps in the Pickwickian1 sense in which a void contract can still be said to be one kind of contract. Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute. It may not be impossible for a man to obey a rule that is disregarded by those charged with its administration, but at some point obedience becomes futile – as futile, in fact, as casting a vote that will never be counted.
1The phrase ‘Pickwickian sense’ comes from Charles Dickens' novel The Pickwick Papers in which Mr Pickwick and his friends trade insults without really meaning them. Thus, the phrase has now come to refer to something that should not be taken too literally.
In his discussion of why law may fail, there is a factor that Fuller does not mention – the policy context. (By policy, I mean the underlying thinking behind a rule or legislative initiative.) Although a rule that is not the product of policy decisions is still a rule, the chances of it being respected and complied with by those to whom it applies are diminished. This is because we tend to think that rules should be the product of a process of discussion or debate in which relevant interests and considerations are explored and discussed first. It is the relationship between policy and rule making that we are going to consider next.