The Yale Law Journal Volume 77, Number 3, January 1968 Rules, Policy and Decision Making Graham Hughest If one were to yield to what is perhaps dangerous temptation and try to identify the most potent influences in American legal philosophy in the twentieth century, three would stand out above the rest. One of these is almost aggressively indigenous while the other two are more or less exotic imports. The native element would be that steadily mounting sociological emphasis, stemming from Holmes, Pound and others, which was to express itself in a cluster of provocative and often brilliant writings in the twventies and thirties. If American realism, as it came to be called, sometimes overreached itself and if some of its philosophical positions have long since been abandoned or modified, its impact on American legal thought and education continues to be pervasive. In a quite different universe of juristic speculation has been the work of the legal philosopher Hans Kelsen. There has certainly been no school of American Kelsenians, and in consequence, by the side of the vast if not always very conscious adherence to realist modes of thinking, the influ- ence of Kelsen seems superficially to have been small. But the eminence of Kelsen in European legal thought and the forceful amplitude of his writing have been such that every American writer of legal philosophy in the last two decades has felt obliged to take account of his general po- sition. Of late a second, if somewhat less alien, intrusion must be ac- knowledged. This newer influence is exemplified in the work of Profes- t Professor of Law, New York University. B.A. 1948, MA. 1950, Cambridge Universit) LL.B. 1952, University of Wales; LL.M. 1961, Newv York University. A few paragraphs in this article are a revised version of some passages which appeared in the chapter on Juris- prudence written by me in the Annual Survey of American Law for 1965. In prcparing this article I have benefited from discussions with Professor Hy a n Gross, my colleague at New York University School of Law, and with Mr. Stephen Wexier, a graduate of the New York University School of Law, class of 1967. 411 The Yale Law Journal Vol. 77: 411, 1968 sor H. L. A. Hart of Oxford and particularly in his celebrated book, The Concept of Law, published in 1961. Professor Hart is certainly not a lonely meteor, for his work in legal philosophy consists of the applica- tion to questions about law of a general technique of philosophical in- vestigation, sometimes called linguistic analysis or ordinary-language philosophy, which has been dominant in England for some time and has many practitibners in the United States. But Professor Hart was one of the first to apply this technique to legal questions, and he has done it with such talent and elegance that his name is justly pre-eminent. His method has not proved congenial to the main body of opinion in the United States1 but, as with Kelsen, those who disagree with his approach have uniformly felt him to be a writer whose work demands discussion, while a small number of American law professors and teachers of philos- ophy now write about juristic questions in a manner which owes a good 2 deal to Professor Hart's example. With some rough propriety the realist movement may be regarded as one avenue of exploration into the nature of a legal system while the work of Hart and that of Kelsen may be bracketed as a quite different type of inquiry. The American realists perceived that the operation of a modem legal system is dependent on what Professor McDougal has aptly called a "flow of decisions"3 and that it was therefore high time to take a hard look at the nature of decision-making under rules. At times this focus led some realist writers to the excesses of defining law exclu- sively in terms of decision-making or of denying the possibility that rules can play any meaningful part in decision-making but, purged of this exaggeration, the realist movement was and remains an invaluable invitation to an empirical investigation of the way in which officials ad. judicate in the context of a legal system. Both Kelsen and Hart, or so it seems to this writer, have been much more concerned with identifying aspects of a legal system which distin. guish it both from human behavior which is not rule-governed and also from other kinds of human behavior in which rules play a part. In pur- suing this aim they have concentrated their attention on the logical fea- tures of prescriptive language and on the structural aspects that give unity to the prescriptions contained in a legal system. This type of ap- 1. See, e.g., Bodenheimer, Modern Analytical Jurisprudence and the Limits of Its Use. fulness, 104 U. PA. L. REV. 1080 (1956); Hart, Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer, 105 U. PA. L. REv. 953 (1957). 2. See Summers, The New Analytical Jurists, 41 N.Y.U.L. REv. 861 (1966). 3. McDougal, International Law, Power and Policy: A Contemporary Conception, 82 RECUElL DE CoUas 137, 181 (1953). 412 Rules, Policy and Decision Making proach has its illuminations and was no doubt necessary as an antibiotic for the behaviorist virus which American realism was threatening to un- leash. But it has its own dangers, both in tending to an exotic preoccupa- tion with the formal structure of legal propositions which are couched in authoritative generalizations and in obliquely dimming awareness of the need for a close examination of the business of practical reasoning within a legal system. Neither Kelsen nor Hart is in the least guilty of the old charge of believing that judicial decisions are reached by some kind of formal logic or even by some less formal process of deductive reasoning. Both are very willing to acknowledge the creative role of the judge. But Kelsen's interest in this area does not extend beyond the mere designation of the judge as the appropriate, authoritative agent for concretizing the superior norm, while Hart's comments about the na- 4 ture of judicial decision-making seem peripheral to his central concern. Professor Hart's work seems to have aroused in a number of Ameri- can writers a sense of its irrelevance or inappropriateness, as if, though clearly talented and impressive, it were somehow not directed to issues which they feel to be vital. Yet, as it seems to this writer, the critics of Professor Hart have failed to point clearly to what exactly is inadequate in his presentation. This article will argue that, in the first place, Profes- sor Hart's elucidation of the concept of law is indeed inadequate in that it stops short of an examination of the nature of legal reasoning and de- cision-making and, secondly, that by analyzing why the failure to do this is critical we can learn something more about the nature of a legal sys- tem, something which was always implicit in the work of the American realists although never well articulated by them. I. The concept of a legal system has an intimate connection with tie na- ture of the legal reasoning employed in legal argument and judicial deci- sion-making. Admittedly, in an analysis of the business of organizing and regulating human behavior under rules, decision-making is not the only activity that deserves notice. The framing of new rules, the observation of rules, the giving of advice and the execution of sanctions are all emi- nently legal activities in this sense, though it may be observed that in a functioning legal system all of these activities are carried on with a care- ful eye to the prospect of adjudication and all are thus influenced and af- 4. H. KELsEN, GNvERAL TaEoRy OF LAW AND STATE 134-35 (19-15); H.L.A. HAx~r. Tin CoNcu'r oF LAw 121-50 (1961). 413 The Yale Law Journal Vol. 77: 411, 1968 fected by the decision-making process. We could, of course, construct a model of a legal system which did not include judicial decision-making -where the rules were perfectly clear, providing unambiguous direc- tion for all conceivable situations, and where compliance was perfect so that disputes never arose. But since no society that is at all complex is likely to be willing or able to operate under such a system, it does seem proper to characterize decision-making, whether adjudicatory or advi- sory, as a very important feature of the operation of a legal system. This is not to say that litigation is the whole of the law but only to insist that an elucidation of the concept of a legal system is dangerously neglectful if it fails to furnish a conceptual analysis that properly illuminates the business of decision-making. This article will focus on the relation of rules to judicial decision- making. At the outset, some illumination may be gained by comparing, as is now often done, the workings of a legal system with playing a game. Professor Hart, in particular, has made much use of games as models for gaining insights into the nature of law and, since games are rule-systems, the analogy is clearly to some extent justified. It may, nevertheless, be helpful to point out that there are important respects in which the anal- ogy between playing a game and participating in a legal system breaks down and these differences may themselves provide an insight to further the inquiry. In many games the rules are comparatively simple and are sufficiently well understood by the players, so that disputes seldom arise and adjudi- cative decisions are seldom necessary.