ORDINARY REASON APPLIED TO LAW
moral reasoning. In other words, judges approach previously announced judicial rules as rule-sensitive particularists,
taking into account the value of maintaining the rule as one of many reasons for decision. As
we said in the preceding chapter, however, rule-sensitive particularism is always threatened with collapse into pure case-by-case particularism: if
all judges are rule-sensitive particularists and all judges know this, then the value they accord to rules as rules in their reasoning will approach
zero, and they will end up reasoning like pure particularists. Thus, if Heidi concludes through the process of reflective equilibrium that no plausible
moral principle supports the exclusion of mortuaries from residential neighborhoods, and if she is not convinced that a no-mortuary rule
has significant coordination benefits, she will ignore the rule and hold for Mike’s.
The rule model of precedent entails a different attitude toward rules. In this model, prior judicial rules operate as serious rules, preempting
the question whether the reasons for the rule justify the outcome it prescribes in a particular case.
If Heidi, presiding over the suit against Mike’s Mortuary, discovers a no-mortuary rule in a prior opinion, her
inquiry into the risks, aesthetics, and social benefits of mortuaries is finished. Subject to certain qualifications discussed later, she must
grant an injunction.
The rule model of common-law decision making also entails a dif- ferent role for judges. Under a rule model, rules announced in judicial
opinions acquire authoritative status. Accordingly, judges now function as lawmakers as well as adjudicators. Traditionally, common-law judges
were reluctant to assume lawmaking authority: their task, as they saw it, was not to make law but to find it embedded in social and legal practice
and the dictates of reason.
Modern judges, however, are more forthright
See Schauer, supra note 3, at 94–100; Frederick Schauer, Rules and the Rule of Law, 14 Harv. J. L. Pub. Pol. 645, 676 n. 66 1991. Rule-sensitive particularism is discussed in Chapter 1,
supra note 23 and accompanying text.
See Raz, supra note 9, at 17–62; Joseph Raz, The Authority of Law 16–19, 22–23, 30–33 Oxford: Clarendon Press 1979.
We discuss refinements of the rule model later in the chapter. See text at notes 33–58, infra.
See J. W. Tubbs, The Common Law Mind: Medieval and Early Modern Conceptions 182 Balti- more: Johns Hopkins University Press 2000; Sir Matthew Hale, The History of the Common
Law of England 45 1713 Charles M. Gary, ed., Chicago: University of Chicago Press 1971; 1 William Blackstone, Commentaries on the Laws of England 69–70 Oxford: Clarendon Press
in their exercise of lawmaking power.
The rule model assumes that judges have such a power.
III. Comparing the Models
In a world in which all judges were perfect reasoners, the natural model of the common law would undoubtedly be superior to the rule model.
The natural model seeks the best outcome in every case. The rule model, in contrast, guarantees that some outcomes will be wrong.
The errors of the rule model of common law have several sources. First, the rule model incorporates the basic problem of rules: rules
must be stated in terms that are general and determinate enough to guide future conduct and decisions; therefore, they do not perfectly
capture the less determinate values they are designed to promote. It follows that in some of the cases they cover, they will prescribe the
A second source of error is bad rules. Rules prevent error by trans- lating the expertise of the rule maker into prescriptions for action, by
facilitating coordination, and by reducing the costs of decision making;
1765; Gerald J. Postema, Classical Common Law Jurisprudence, Part I, 2 Oxford U. Common- wealth L.J. 155, 166–67 2002. But cf. J. H. Baker, An Introduction to English Legal History 200
4th ed., London: Butterworth’s Lexis-Nexis 2002 suggesting that the ranks of judges have always included both “timid souls” and “bold spirits”.
For modern descriptions of legal decision making that come close to the classic under- standing, see Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument 147–52
Cambridge: Cambridge University Press 2005 associating the rule of law with the idea that courts “are not to decide for themselves what the law is but are to seek it out, to discover
and apply it as it is,” but also maintaining that the process of declaring law entails judgment as well as reason. See also Ronald Dworkin, Taking Rights Seriously 82 Cambridge, Mass.:
Harvard University Press 1977 “Judges should apply the law that other institutions have made; they should not make new law”; A. W. B. Simpson, The Common Law and Legal
Theory, in Oxford Essays in Jurisprudence 77, 84–86 2d ser., A. W. B. Simpson, ed., Oxford: Clarendon Press 1973 “common law rules enjoy whatever status they possess not because
of the circumstances of their origin, but because of their continued reception”.
See Eisenberg, supra note 3, at 4–7 1988 maintaining that courts inevitably make law, not only as a by-product of adjudication but also to enrich the body of legal rules; Benjamin
N. Cardozo, The Nature of the Judicial Process 125 New Haven: Yale University Press 1949 “Since the days of Bentham and Austin, no one, it is believed, has accepted [the theory that
judges do not legislate] without deduction or reserve”.
See Schauer, supra note 3, at 31–34, 48–54; Chapter 1, supra text at note 17.
ORDINARY REASON APPLIED TO LAW
but they also cause error by prescribing wrong outcomes, through blunt- ness or otherwise.
They are justified only when, judged by the values on which they are based, they will prevent more error than they cause.
Some rules fail to meet this standard, either because they were poorly conceived from the outset or because circumstances have changed since
they were issued.
For several reasons, judicial rules are particularly likely to lack justi- fication or to lose their justification over time. Judges are not necessarily
expert rule makers, and, as we explain more fully in later sections, the task of resolving a particular dispute may further hinder their ability
to craft sound rules.
Another problem is that once judicial rules are recognized as authoritative, they are hard to eliminate. Judges tradition-
ally have been reluctant to overrule established rules of law, and in any event it is difficult to formulate a standard for overruling that does not
jeopardize the benefits of authoritative rules.
Despite the inescapable flaws of serious judicial rules, the rule model of common-law decision making has advantages that we believe justify
courts in adopting it. In the world as it exists, judges are not perfect reasoners: judges operating under the natural model of decision making
will seek to reach the best decision, all things considered, but they will not always succeed. The important comparison, in other words, is not
between full implementation of values and flawed implementation of values, but between the flaws of unconstrained reasoning and the flaws
of rules. The rule model is preferable if there is reason to think that a greater sum of moral errors will occur if judges always decide what
is best, all things considered, than if they treat previously announced judicial rules as serious rules of decision.
On the benefits of rules, see Chapter 1, supra text at notes 11–13.
See Raz, supra note 9, at 70–80 discussing the “normal justification” of authority.
See Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883, 893–912 2006; Alexander and Sherwin, The Rule of Rules, supra note 1, at 132–33 noting the possibility
of cognitive bias; Emily Sherwin, A Defense of Analogical Reasoning in Law, 66 U. Chi. L. Rev. 1179, 1191–92 1999 same. But cf. Jeffrey J. Rachlinski, Bottom-Up and Top-Down
Decisionmaking, 73 U. Chi. L. Rev. 993, 940–64 2006 suggesting that courts and legislatures have different cognitive advantages and disadvantages for different purposes. We discuss
this problem in greater length in Chapter 4, infra text at notes 16–32.
We discuss the problem of overruling in, infra text at notes 56–61, and in Chapter 4, infra text at notes 36–44.