How to Do Things with Standards

How to Do Things with Standards

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The distinction between rules and standards is nowadays a commonplace of American jurisprudence. A speed limit is a rule; a norm that requires drivers to take reasonable care is a standard. The distinction is between a norm that uses relatively precise, descriptive and perhaps even operationalized predicates in its protasis and apodosis, and a norm that, in its protasis and apodosis, uses evaluative or other vague terms whose application requires thought, evaluation or judgment on the part of the norm applier. The distinction between rules and standards is less well known in the United Kingdom, in British jurisprudence. It doesn’t really feature in William Twining and David Miers’ book, How to Do Things with Rules: there is no entry for ‘standards’ in the index to that book. In fact, Twining and Miers explicitly disavow any real interest in different types of norms. They seem to want to use ‘rule’ as a very general term, meaning ‘a general norm mandating or guiding conduct or action in a given type of situation’, and they agree that this definition is ‘somewhat broader than the term is sometimes used in ordinary discussion’. They do cite (and criticize) Ronald Dworkin’s distinction between rules and principles; but they concentrate mainly on his distinction between norms that apply in an all-or-nothing fashion (‘rules’, according to Dworkin) and norms that guide but do not necessarily determine a result (‘principles’). (They do not pay attention to his account of the different modes of presentation of rules and principles in the law: rules present themselves, are recognized, and operate at the surface of enacted law whereas principles reside deep within the spirit of a legal system and are not easily discerned by a ‘rule of recognition’.) Dworkin probably erred in thinking that H. L. A. Hart was using the term ‘rule’ in the rather narrow sense that American jurists have in mind when they contrast rules and standards. And Dworkin confused matters further by using the term ‘standard’ as a very general term, meaning roughly ‘norm’ and comprising both rules and principles. So terminology in this area is a bit of nightmare. Even so, the distinction between rules and standards, as different kinds of surface-level or enacted norm, is pretty well known in America. The constitutional norm in Article II of the US Constitution stipulating the age that a person must have attained before he or she can become President of the United States is a rule: ‘neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years’. The use of a numerical predicate, ‘thirty five’, is typical of a rule, as is the existence of a clear and public method of establishing whether the norm condition applies—namely, the practice of issuing birth certificates and public and uncontroversial ways of counting the number of years that have elapsed since the day of a person’s birth. And the constitutional norm that limits the punishments and exactions that may be inflicted by US authorities is a classic example of a standard: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ The word ‘excessive’ in both its occurrences is a term of evaluation, requiring normative judgment in its application; the same is true of ‘cruel’, though it is a slightly ‘thicker’ or more specific term of evaluation than ‘excessive’. Both are enacted norms, and so they both differ from the norms that Dworkin called ‘principles’. Dworkinian principles, however, usually have the characteristic that distinguishes standards from rules: they are best formulated, when they are formulated, with the use of evaluative terms. (The paradigm that Dworkin is famous for using, ‘No one shall profit from his own wrongdoing’, is an example. It requires evaluative judgment, not only to discern the principle but to apply it.) The distinction between rules and standards is not hard and fast, partly because the term we are using to make the distinction—‘predicates that require evaluative judgment in their application’—is not itself precise: for example, is ‘unusual’ in the Eighth Amendment such a term? But the purposes for which we draw the distinction do not themselves require precision. We are interested in the distinction between rules and standards partly because of the different political responsibilities that they indicate. Doing things with norms involves acting or requiring action pursuant to certain value-judgments. In the case of rules, all the relevant value-judgments are made by those who frame and enact the norm. In the case of standards, however, some of the relevant value-judgments are left to be made by those whose task it is to apply the norm. With rules, value-judgments are made upstream at the legislative level; with standards, some of the relevant value-judgments are made downstream on the streets or in the courtroom. We are also interested in the distinction between rules and standards, because of the particular problems that they pose. Standards pose problems of disparate and unpredictable application in a pluralistic society; what counts as ‘cruel’ or ‘excessive’ to some people in a given society may counts as ‘entirely appropriate’ to other members of the same society, and it may be impossible for the subject of a norm to figure out which group his actions will be at the mercy of. Rules pose problems of arbitrarily concocted precision in circumstances where precise application is sought for its own sake rather than for the sake of tracking boundaries that are in themselves morally relevant. There is nothing particularly significant about a thirty-five year age qualification for the presidency, as opposed to thirty-six or thirty four-and-a-half; relative to those possibilities, the constitutional standard is arbitrary. We insist arbitrarily on precision here just because we want a bright-line distinction, not because the thirty-five-year cut-off has any moral significance in itself. Thirdly, we are interested in whether adjudicators and other interpreters should see standards as ‘inchoate’ rules. Presented with a standard, as I have defined it, should a judge or a bench of judges see it as their task to convert the standard into a rule by pinning down its application in various determinate ways? Or are there ways of interpreting and elaborating a standard which keep faith with the fact that it was not promulgated as a rule—with the fact that it was, as Henry Hart and Albert Sacks put it, ‘an avowedly indeterminate directive’? These interests do not presuppose a bright line between rules and standards. But their pursuit is interesting for jurisprudence nonetheless. The case of standards helps complicate and deepen our sense of how people can do things with norms. I said that Twining and Miers do not make use of the distinction between rules and standards. They do talk briefly about the idea of a standard, even though they don’t use that terminology. One interesting point they make is that norms whose expression embodies value predicates can sometimes operate categorically as rules (in the narrow sense). There is no necessary correlation between precision and prescriptive status. So, for example, Article 3 of the European Convention on Human Rights operates categorically to forbid torture and inhuman and degrading treatment; the fact that these terms are general and evaluative in character does not diminish the categorical character of the norm that embodies them. I think it is a pity that Twining and Miers did not explore the idea of standards beyond this. In the rest of the paper, I want to give a taste of what such exploration might reveal—of the different ways in which a lawmaker and the community for which he legislates can ‘do things’ with standards.

Source Publication

Law's Ethical, Global and Theoretical Contexts: Essays in Honour of William Twinning

Source Editors/Authors

Upendra Baxi, Christopher McCrudden, Abdul Paliwala

Publication Date

2015

How to Do Things with Standards

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