Monday, February 05, 2018

Antonin Scalia and The Law of Rules

Concerning: Scalia, Antonin, 1989, “The Rule of Law and the Law of Rules,” The University of Chicago Law Review, Vol. 56, No. 4, pp. 1175-1188.

Warning: I am going to agree with Justice Scalia.

In this article, Antonin Scalia provided an analysis to the rule of law focusing on how to resolve a case - to reach a particular decision.

The best description of his thesis is found in a quote that Scalia provided from Aristotle.

Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement.

On the first instance, a case should be decided by appeal to the law - which, Scalia would argue, is a set of general rules applicable to a large number of like cases. It should not be decided on the basis of facts unique to the individual case.

This, according to Scalia, is the “Law of rules.”

The main reason for this is that the law must be predictable. A law built on set of particular, specific, and unique judgments gives a person no sense of what the law says in any new case. The only hope that an individual has at being able to predict whether his action would be found legal or illegal would depend on his ability to correctly determine some pattern of judgment from the history of previous judgments, and hope that the judge did not see fit to change his mind in the mean time.

People have many and strong reasons for a system of laws that allows them to reliably determine what is or is not illegal. Not only does the ability to do so help to provide individuals with security, it is necessary for people to be able to plan their future actions with some measure of confidence.

Of course, we can agree with Scalia on this matter and still disagree with Scalia on what he, in his role as judge, decided on in terms of rules in actual cases. That would be a separate question.

So, the rule of law requires a law of rules - rather than a law of specific judgments.

Still, Scalia argued that we cannot get into every corner of the law. Consequently, there is still room for particular judgments not grounded on the law of rules. When this happens, not only is it false to believe that there is a unique legal answer to the question, but higher courts should accept some variation in the decisions of lower courts. The only time the upper court should get involved is when it can introduce a new rule or clarify an existing rule applicable across a large number of cases.

Scalia thought that it was important to stress that he was not so naive that he thought that every case had an answer strictly determined by the law, and that the judge did not have to sometimes use some judgment in making decision in a specific case. Humans simply cannot design general rules applicable to every imaginable case. This sometimes happened and, Scalia mentioned, he expected to be required to do some of this himself.

On these matters, I can find little to disagree with.

No comments: