Assignment: standards, principles, rules

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.