Emily Sherwin

The Rule of Rules: Morality, Rules, and the Dilemmas of Law

Rules perform a moral function by restating moral principles in concrete terms, so as to reduce the uncertainty, error, and controversy that result when individuals follow their own unconstrained moral judgment. Although reason dictates that we must follow rules to avoid destructive error and controversy, rules—and hence laws—are imperfect, and reason also dictates that we ought not follow them when we believe they produce the wrong result in a particular case. In The Rule of Rules Larry Alexander and Emily Sherwin examine this dilemma.nnOnce the importance of this moral and practical conflict is acknowledged, the authors argue, authoritative rules become the central problems of jurisprudence. The inevitable gap between rules and background morality cannot be bridged, they claim, although many contemporary jurisprudential schools of thought are misguided attempts to do so. Alexander and Sherwin work through this dilemma, which lies at the heart of such ongoing jurisprudential controversies as how judges should reason in deciding cases, what effect should be given to legal precedent, and what status, if any, should be accorded to “legal principles.” In the end, their rigorous discussion sheds light on such topics as the nature of interpretation, the ancient dispute among legal theorists over natural law versus positivism, the obligation to obey law, constitutionalism, and the relation between law and coercion.nnThose interested in jurisprudence, legal theory, and political philosophy will benefit from the edifying discussion in The Rule of Rules.

The Unruliness of Rules

Analytical jurisprudence1 depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory indeed, before we can even know what those questions are we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence

RULES AND JUDICIAL REVIEW

This article studies three related practices affecting judicial review of statutes: review of statutes as applied rather than as written; severance of valid applications of statutes from invalid or possibly invalid applications when possible; and interpretation of statutes to avoid constitutional difficulty. The common feature of these overlapping practices is that in each case, the effect of the courts decision is to create a new rule. When a court invalidates or upholds a statute as applied, it implicitly determines that a part of the statute - the remainder of the statute, or the sub-rule applied to the challenger - is valid. Similarly, when a court finds an unconstitutional application of the statute to be severable from other valid applications, what remains after severance is a new, narrower law. When a court interprets a statute in a way it would not otherwise endorse in order to avoid constitutional difficulty, the result is, again, a new law. This observation suggests that the new law that will result from as-applied adjudication, severance or narrowing interpretation should be judged as a rule. It is not enough that severance will enable the court to reach a desirable result; nor should the court assume that partial enforcement of legislative policy is better than no enforcement at all. Because severance or a saving interpretation replaces one rule with another, the court should ask whether the new rule is a justified rule. The new rule is justified as a rule if it (1) serves the underlying moral principle or goal of the original statute, and (2) does so in a way that prevents more errors of judgment through coordination and expertise than it causes through poor design or bluntness. Ideally, the rule that remains after severance or a saving interpretation also should yield greater net benefits than alternative rules that might be designed by the legislature from scratch. Before concluding or assuming that a new rule resulting from severance, as-applied adjudication, or narrowing interpretation is sound, the court should consider which body ? itself or the legislature ? is best positioned to issue a rule. For this purpose, the standard reference to legislative supremacy is not helpful. A decision to sever a statute may honor legislative supremacy by preserving as much legislation as possible; then again, a decision not to sever honors legislative supremacy by assuming that the legislature is the superior rule-maker. Instead, the court must compare its own inherent short-comings as a rule-maker with the costs that will result from delay and disruption if it refuses to establish a rule and instead remits the problem to the legislature.

How Liberal is Liberal Equality?: A Comment on Ronald Dworkin's Tanner Lecture

Liberalism is a wonderful theory, but its adherents have a difficult time explaining why. In his Tanner Lecture entitled Foundations of Liberal Equality , Ronald Dworkin proposes to defend liberalism in a new way. Dworkin is not content to view liberalism as a political compromise in which people set aside their personal convictions in the interest of social peace. Instead, he undertakes to make liberal political theory “continuous” with personal ethics, by describing an ethical position that endorses liberalism as a matter of conviction.