Basic concepts of legal thouhht 2

Rules and discretion. Kinds of rules. Rules and decisions. Discretion in hard cases. Discretion and duty. Discretion in easy cases. Thinking about the law in this century has focused largely on the role of rules in providing the foundation of a legal system. This preoccupation has seized the jurisprudential mind largely because the written materials of the law have progressively taken the shape of propositions that look like rules. We have the modern codes of the continent as well as an imposing body of statutory law in the common – law jurisdictions. Law students in the united states – and presumably elsewhere – prepare for their examinations by mastering and memorizing rules. So far as anyone can tell, the law today is written in the form of rules. Another conceptual line of relevance to understanding the law runs between constitutive and regulatory rules. Constitutive rules define concepts that do not come into being unless the rules are followed; regulatory rules tell us how to work with entities that exist apart from the rule. The rules of games are constitutive. To move the knight in chess, you must follow the rules for moving the knight. If you move it the way you would move a castle, you have not transacted a bad move but rather have made no move at all. On the other hand, if you follow a recipe for a cake and forget to put in the sugar or the cinnamon, you still bake a cake, but it will be a bad cake. The recipe is a regulatory rule, at least as to many of the ingredients. I suppose if you forgot the flour and the baking soda, the result of your baking will be some kind of syrup that we would not call cake.

Legal theorists have developed an extraordinary body of learning about rules, their structure, and the way we use them. H. L. A. Hart develops an entire theory of law on the basis of the distinction between primary and secondary rules. Primary rules, such as the rules of criminal and tort law, impose rules and rights and duties directly on citizens; secondary rules provide the means of incorporation, contract making, legislation, and adjudication that generate the primary rights and duties. The best way to grasp this distinction is to think about the difference between the rights and duties generated by a contract and the rules about making contracts (requiring, e. g., an offer, acceptance, consideration, and perhaps a document testifying to terms of the agreement). Suppose the contract is to purchase apples. The primary rule of the contract is that the seller must deliver a certain amount of apples of a certain kind and grade on a certain date and the buyer must pay a certain price. The secondary rules for making the contract resemble the steps in a recipe for baking a cake. If you follow the rules, step – by - step, the product in one case is a cake and, in the other, a contract.

Hart applies this distinction to explain the difference between primary rules enacted by a legislative body and the rules that establish a legislative body, define its competence, and specify the procedure for enacting a law. The secondary rules of legislation resemble the rules for making contracts. They empower people to change their legal relationships by generating new primary rights and duties. Legislation (e.g., the enactment of a criminal statute) also changes legal relationships by imposing new duties on individuals to conform their conduct to the statute. The French civil code noted this similarity between contracts and legislation by proclaiming that contracts “take the place of the [statutory] law among the parties to the agreement.”

Hart’s distinction between two kinds of rules carries forward the effort by Wesley Hohfeld earlier in the century to clarify the different senses in which we use the term “right” in English. Individuals acquire rights under contract, and they also have the rights to make contracts. These two kinds of rights, Hohfeld claimed, are fundamentally different. The right under the contract is a right to claim a performance; the right to make a contract is the right to change one’s legal relationship with another party, thus bringing into existence the right to claim a performance at a specific time. To make this distinction clear, Hohfeld proposed using the word “power” to connote the second kind of right the right to change a legal relationship.

A simple triadic situation of conflict illustrates the illuminating power of these distinctions. Consider the case of Alex who enters into an agreement to sell his condo to Betty. Under thus contract Alex has a duty to transfer ownership and possession of the condo to Betty, say, on the following June 1. And Betty has to compel Alex to engage in this act of turning over physical control as well as legal ownership of the condo. Now suppose that before the June 1 deadline, Charlie comes along and offers Alex more money for the apartment. Alex transfers legal title to Charlie by engaging in all the locally required formalities. The question is whether Charlie has become the owner of the condominium. The generally accepted answer is yet. Hohfeld would explain this complex relationship in the following way. By entering into a contract with Betty, Betty acquired a right that Alex transfers title in the condominium to her. Though Alex was under a duty to transfer title in the condo to Betty, he retained the power to transfer legal ownership to whomever he wished – even if doing so amounted to a breach of the contract with Betty. The result, therefore, is that Charlie becomes owner of the apartment and Alex must pay damages for breach of contract to Betty.

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