ISSN 1062-7421
Vol. 11 No. 12 (December 2001) pp. 606-608.

THE RULE OF RULES: MORALITY, RULES, AND THE DILEMMAS OF LAW by Larry Alexander and Emily Sherwin. Durham and London: Duke University Press, 2001. 279 pp. Cloth $45.95. ISBN: 0-8223-2736-8.

Reviewed by Judith Lynn Failer, Department of Political Science, Indiana University, Bloomington.

THE RULE OF RULES is a provocative exploration of how rules can perform a moral function. Larry Alexander and Emily Sherwin contend that authoritative rules serve the important function of settling the disputes that will inevitably arise even when people have the best intentions and substantially overlapping moralities. These disputes arise because people will have problems coordinating their behavior, discerning how best to behave in particular situations, and finding enough time to figure out how best to act. To the extent that a system of rules is both authoritative and determinate, it will better fulfill "the moral functions that rules are meant to serve: coordination, expertise, and efficiency" (p. 30). When a system of rules is working properly, it can us tell us what we ought to do such that we do not have to dig into the reasons for the rules but look instead only to the terms of the settlement. It can also reduce the uncertainty, error, and controversy that arises when people disagree about what ought to be done.

Throughout their inquiries, the authors assume that rules should aim to settle disputes. They also recognize, with Frederick Schauer and others, that generally stated rules will sometimes have infelicitous applications, i.e., that there will sometimes be a gap between what a rule requires and what we believe we ought to be done in a particular situation (Schauer 1991). For example, suppose a town enacts a rule that says "No swimming" on a part of the waterfront where the currents run very strong. This is a clear and definitive rule that clearly tells us whether it is permissible to swim. It also helps promote public safety. However, even such a clear rule poses problems. On one hand, there may very strong swimmers for whom these currents pose no problems. For these swimmers, the rule makes no sense. On
the other hand, if the town were to tinker with the rule to make it adapt to people's varying swimming abilities, the rule would become less clear, less easy to interpret, and less able to provide a definitive guide about how we should behave. In short, it would undermine the function that rules are to serve: to provide definitive ways to settle disputes so that we don't have to dig into--and perhaps err about--the rationale behind the rules every time we try to decide what to do. It is just such dilemmas that the authors take to be the central problem of jurisprudence. To serve their function of settling disputes about what is the right thing to do, the rules must be definitive; but to be definitive, the rules must often take a form such that they sometimes will be unable to tell us what is the right thing to do in every
instance. This is the central problem in jurisprudence, they contend, because there is often no way to close the gap between rules that are functionally successful and rules that enable us to reach the right conclusion in particular

Page 607 begins here


By focusing on the settlement function of rules--and the moral gap this settlement function brings to the fore--the authors are able to see familiar jurisprudential problems in a new light. In a series of rich and carefully argued chapters, Alexander and Sherwin take on old puzzles in legal theory and make them look new. For example, the authors recast the debates about the relative merit of various methods for legal interpretation, and they show how the most common methods for legal reasoning (by analogy, in light of precedent, and from [Dworkinian] legal principles) purport to bridge the moral gap but ultimately fail. They also take on the debate between natural law and positivism, and they show how the two approaches to understanding the law are not really antithetical but rather are alternative ways to view the nature of the moral gap Alexander and Sherwin identify, i.e., whether they view the source of the gap as something internal or external to the system of rules. Ultimately, the authors contend that as long as people are clear about the object of their disagreement, nothing significant turns on whether you view the gap as a natural lawyer or positivist; what matters instead is the gap itself.

This is a provocative book. It presents a far-reaching thesis, and then uses that hypothesis to explain and recast many of the most important questions in legal theory. Of course, anytime an argument is this large in scope, it runs the risk of rubbing its readers the wrong way at one point or another, if only because the argument will likely reach-and challenge-some if the reader's pet assumptions. I take this to be one of the book's biggest strengths. The book invites its readers to think hard about why we believe that rules work (and do not work) in the ways that they do (and do not). It also leads us to rethink the purpose of rules.

Alexander and Sherwin identify a function that rules can serve-to settle disputes--and then assess all aspects of legal theory with that goal in mind. This is not an entirely new method for jurisprudence. Lon L. Fuller implicitly engaged in the same kind of functional analysis when he identified eight forms of legal invalidity. By looking at eight ways that we can fail to make law, Fuller infers what functions law needs to serve in order to enable us to engage in what we think of as the enterprise called law (Fuller 1977). But Alexander and Sherwin's analysis is even more directly functional than was Fuller's. In effect, they treat the settlement function of rules as an independent variable, and then analyze how other aspects of legal theory change based on this assumption, much as we would test for
effects on dependent variables in a regression analysis. As functional analysis, however, the study begs several questions.

First, is the purpose of law really to settle disputes? To be fair, Alexander and Sherwin are not writing about law per se, but rather systems of rules. However, their analysis has important implications for law, especially to the extent that we appreciate the extent to which positivism plays an important role in how we conceive of and approach our laws. Are there other purposes we want law to serve? What about the expressive value of law? What about its aspirational qualities? Can a theory that focuses on settlement account for these other purposes, too?

Second, and what I found to be more controversial, the authors' focus on the settlement function of rules leads them to some odd understandings of basic concepts

Page 608 begins here

in legal theory. For example, the authors treat legal authority as something that wholly replaces the underlying justification of the law itself. In the author's words, "Given the objective is a settlement, its terms must be authoritative, which means they must supplant the reasons upon which they are based" (p. 13). Yes, laws cannot ensure settlement if individuals take it upon themselves to decide whether they accept the laws as binding. And yes, it certainly makes sense in positivist terms that rules would be binding because issued by authoritative lawgivers, (i.e., if they meet Hart's secondary "rule of recognition"). But this approach to legal
authority makes less sense on non-positivist terms. When laws are both legitimately enacted and immoral, the fact that the law is valid as a matter of positive law is an important consideration when deciding whether to obey the law, but its immorality matters, too. To say that legal validity tells us everything we need to know about legal authority pays short shrift to the role that external morality plays in our assessment of law's bindingness. Of course, the authors recognize this tension, and it leads them to focus on the uncloseable gap between laws that settle disputes and the morality people use to judge law's authority. However, the problem of the moral gap only plays such a prominent role in their theory because they define legal authority as something that supplants morality. By focusing on authoritative rules only as devices for settling disputes, they actually create the problem that need not bog down other approaches to legal authority. True, other approaches to
legal authority may not yield the kind of settlements Alexander and Sherwin can. But it may be that the moral purposes of law extend beyond the settlement function.

This book may be too technical to assign to undergraduates, but graduate students will find the argument's breadth a useful model for creative and careful legal theory. They will also benefit from the excellent and clear discussion of major debates in jurisprudence, even though those discussions are filtered through the lens of Alexander and Sherwin's particular agenda. I also commend this book to anyone who likes jurisprudence. Although I did not accept all of the books conclusions-let
alone its assumptions-I found it valuable and would recommend it to anyone who enjoys asking big questions about the meaning and nature of rules (and law).


Fuller, Lon L. 1977. THE MORALITY OF LAW, revised edition. New Haven: Yale University Press.



Copyright 2001 by the author, Judith Lynn Failer.