Introduction
Early on in law school, law students
begin to realize that legal norms are not all cut from the same cloth.
Some rules provide "bright lines," others "fuzzy lines," and yet
others, no lines at all. The "reasonable person" test in tort law
constrains in a very different way than does the rule against
perpetuities in property. That is, legal norms differ in extent to
which they constrain those who are charged with applying them.
We can slice and dice legal norms in
various ways. In this post, we will investigate the idea that legal
norms can be sorted into three general classes: rules, standards, and
principles. Let's stipulate to the following definitions to get the
discussion off the ground:
Rules are
the most constraining and rigid. Once a rule has been interpreted and
the facts have been found, then the application of the rule to the
facts decides the issue to which it is relevant.Standards provide an intermediate level of constraint.
Standards guide decisions but provide a greater range of choice or
discretion; for example, a standard may provide a framework for
balancing several factors.Principles are even less constraining. Principles provide
mandatory considerations for judges. Whereas, standards identify an
exhaustive set of considerations for adjudication or policy making, a
principle identifies a nonexhaustive set, leaving open the possibility
that other considerations may be relevant to the decision.
This
post provides an introduction to rules, standards, and principles for
law students (especially first-year law students) with an interest in
legal theory.
Rules
Although the phrase "legal rule" can be
used in a broad sense, to refer to all legal norms, whether they be
case in the form of a bright-line rule, a standard that is in the form
of a balancing test, or even an abstract principle, there is also a
narrower sense of "rule" that distinguishes rules from standards and
principles.
Rules themselves vary–let's use hard and
soft to refer to the poles of a continuum. A rule is harder if both the
conditions for its application and the consequences that follow are
defined by bright-line distinctions that admit of easy application. The
rule that disqualifies persons who are not 35 years of age from
eligibility for the Presidency of the United States is quite hard or
rigid. Rules become softer as they criterion for the application and/or
the consequences to which they lead become fuzzier. If the constitution
had limited the presidency to "adults," then there could have been
cases in which the question whether a particular candidate was unclear.
Twelve-year olds are clearly not adults but twenty-five year olds
clearly are. In between, the necessity of drawing a somewhat arbitrary
line makes the "adult" rule relatively softer than the "35-year old" rule.
Standards
Standards are less constraining than even
"soft" rules. Whereas a rule defines a triggering condition and a
consequence, a standard may define a set of relevant considerations and
options. One familiar example of a standard is provided by the fairness
component of the International Shoe test for personal
jurisdiction. That test requires a court to find that a state's
assertion of personal jurisdiction violates the Due Process Clause on
the basis of a give factor balancing test, which refers to the
defendant's interest, the plaintiff's interest, the interest of the
forum, judicial efficiency and economy, and substantive policy concerns.
Like rules, standards themselves vary in
their capacity to guide and constrain the decision-making process. Some
standards give the decision maker substantial guidance, by specifying
relatively specific and concrete factors the decision maker should
consider and the relative weight or importance of those factors. Other
standards are much more open ended, requiring consideration of factors
that are general and abstract. Standards that refer to "all the
circumstances," "the interests of justice," or "equitable
considerations" are particularly soft. Standards that require the
evaluation of "cost to the defendant" or "serious invasions of privacy"
are relatively harder, providing greater constraint and guidance.
By way of illustration, consider
eligibility for the presidency once again. A rule based approach might
limit eligibility to persons of a certain age or to "adults." A
standard might specify that the only persons who are "sufficiently
mature" may occupy the office of President. This standard is relatively
open-ended, and it might disqualify some sixty-year olds from the
presidency but allow some 20 year olds to serve.
Principles
Principles are quite different from both
rules and standards–at least on the basis of the definitions that we
are using. Both rules and standards provide a framework that is, in
theory, sufficient for resolving a particular issue in a legal dispute.
But as we are using the term, a "principle" only provides guidance for
the interpretation or application of a rule or standard. Principles by
themselves do not resolve legal issues.
This sense of principle is illustrated by
Ronald Dworkin's example of the principle that no one should be allowed
to profit from their own wrong, drawn from the case of Riggs v. Palmer,
22 N.E. 188 (N.Y. 1889). In that case, the statute of wills would have
allowed a murderer to inherit from his victim, but the New York Court
of Appeals concluded that the statute should be given an equitable
interpretation in light of the common law principle against wrong doers
profiting from their wrongs. This principle is not a rule: the law does
permit wrong doers to profit from their wrongs in a variety of
circumstances. Rather, this general and abstract principle provided
guidance in the interpretation and construction of a rule–in Riggs, the rule provided by the statute of wills. (This example is drawn from Ronald Dworkin's famous essay Hard Cases.)
The Pros and Cons of Rules, Standards, and Principles
What are the pros and cons of rules,
standards, and principles? When you have identified a candidate legal
norm, when should you argue that the norm should be formulated as a
rule, a standard, or a principle? In his famous 1985 article, Pierre
Schlag provided this example:
In
one torts casebook, for instance, Oliver Wendell Holmes and Benjamin
Cardozo find themselves on opposite sides of a railroad crossing
dispute. They disagree about what standard of conduct should define the
obligations of a driver who comes to an unguarded railroad crossing.
Holmes offers a rule: The driver must stop and look. Cardozo rejects
the rule and instead offers a standard: The driver must act with
reasonable caution. Which is the preferable approach? Holmes suggests
that the requirements of due care at railroad crossings are clear and,
therefore, it is appropriate to crystallize these obligations into a
simple rule of law. Cardozo counters with scenarios in which it would
be neither wise nor prudent for a driver to stop and look. Holmes might
well have answered that Cardozo's scenarios are exceptions and that
exceptions prove the rule. Indeed, Holmes might have parried by
suggesting that the definition of a standard of conduct by means of a
legal rule is predictable and certain, whereas standards and juries are
not. This dispute could go on for quite some time.
Here are some basic ideas about the appropriateness of rules, standards, and principles:
Predictability and certainty. If your goal is ex ante
predictability and certainty, then rules are usually the way to go.
Predictability and certainty are particularly important when the law
seeks to guide future conduct. For example, if we want to deter
particular forms of conduct, we may do better to define the conduct in
a rule (or in a set of rules) that would enable those who engage in the
conduct to clearly see that the proscribed conduct is forbidden.
Standards provide less guidance, and principles, almost no guidance at
all.Fairness and sensitivity. On the other hand, if our goal is to insure ex post
fairness, then standards may be the way to go. Standards permit
flexibility and the consideration of mitigating circumstances. Rigid
rules are likely to lead to unfairness in particular cases, because it
may be difficult to define in advance all of the circumstances which
should count as exceptions to the rule.The job of principles. Principles seem best suited for
another sort of legal task. Principles cut across doctrinal fields. The
same principle–one may not benefit from one's own wrong, for
example–may apply in torts, contracts, and the law of wills. Thus,
principles are particularly well suited to give legal form to concerns
which operate in a wide variety of particular contexts.
Conclusion
Legal theorists need to be able to identify rules,
standards, and principles, and more importantly, to be able to argue
the pros and cons of formulating legal norms in these standard forms.
The main goal of this post has been to enable you to distinguish a rule
from a standard and to see that principles operate in a different way
than either rules or principles. I also hope that the post has provided
you with some tools that will enable you to make arguments like: “this
rule would better be reformulated as a standard, because . . ." And
arguments, like, “that legal norm really isn't a standard at all, it is
better described as a principle.” I've provided some additional
references, for those who want to pursue these ideas further.
Related Lexicon Entries
Legal Theory Lexicon 001: Ex Ante/Ex Post
Legal Theory Lexicon 017: The Rule of Law
Legal Theory Lexicon 024: Balancing Tests
Legal Theory Lexicon 043: Formalism and Instrumentalism
References
Baird & Weisberg, Rules, Standards, and the Battle of the Forms: A Reassessment of § 2-207, 68 Virginia Law Review 1217 (1982).
Ronald Dworkin, Hard Cases in Taking Rights Seriously (1977).
Herbert Hart & Albert Sacks, The Legal Process (unpublished manuscript tent. ed. 1958).
Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harvard Law Review 1685 (1976).
Pierre J. Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985).
(This entry was last modified on September 6, 2009.)