Schauer on the Virtue of Following Rules

January 27, 2011

Professor Frederick Schauer has focused much of his scholarship over the years on legal reasoning and theory. In one of his latest pieces, a chapter in the forthcoming book Law, Virtue & Justice," Schauer examines the recent movement by some theorists favoring particularism in law — for example, a juror or judge acknowledging the complex context of a given set of facts rather than merely adhering to a strict set of rules. The article, "Must Virtue Be Particular?," is available on SSRN.

Frederick Schauer

How have some scholars argued that particularism can help a juror or judge rise above their own biases?
From numerous perspectives, including but not limited to the field known as virtue ethics," various scholars have argued that legal decision-makers should be particularistic, taking the maximum number of facts into account and looking at the full context of a case or decision-making setting. A common argument is that doing so will enable a judge, a juror or other decision-maker to understand the situation or to understand other people. But those who resist the call to particularism, including myself, worry that the more facts a decision-maker takes into account the more likely it will be that the decision-maker is making a decision that reflects his or her own views, values, experiences and perspectives.

When is it more virtuous not to be particularistic?
Accordingly, there may often be virtues in not being particularistic, or in not letting decision-makers be particularistic. Making decisions according to general categories, and ignoring some of the particular features of particular cases or situations, may be important in some settings for transcending bias, transcending lack of competence or expertise, and recognizing that not everyone is equally good at making every kind of decision.

If humility is an important virtue, how would a juror decide that he or she is expert enough to offer an opinion?
Thus, there may be virtue in humility, and in recognizing the limitations of one's own decision-making abilities. And because people, including judges and jurors, are often not very good at recognizing the limitations of their own decision-making abilities, the legal system often uses rules and large categories as ways of limiting the factors that judges and jurors may take into account. Such an approach may produce poor decisions on some occasions, but in some settings the number and consequences of such poor decisions may be less than the number and consequences of poor decisions that come when decision-makers are told simply to make the best all-things-considered decision.

How does this article fit into your overall scholarship?
I have been writing about rules and related issues of legal reasoning for some time, often from the perspective of being more sympathetic to rules and large categories, and less sympathetic to particularism, than is now fashionable. Because particularism is so commonly associated with the current interest in Aristotelian virtue ethics, it seemed useful to try to explain how virtue need not be particularistic at all, a position at odds with much that is now argued by philosophers and legal theorists who are attempting to apply virtue ethics to legal decision-making.

What are you working on next?
In much of contemporary legal theory, the relevance of coercion to the nature of law has been de-emphasized, mistakenly in my view. Because people often have excess confidence in their own decision-making abilities, or make decisions that are more to their own advantage than to the advantage of the larger society, it is often important for law to steer people away from their own self-interested or excessively self-confident decisions. And thus the connection between law and coercion is more important than it has seemed to many contemporary theorists, and in some of my current work, including the beginnings of a book tentatively titled "The Force of Law," I am trying to recapture the importance of force, coercion and sanctions in explaining the characteristics of law as we experience it.

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