Rules versus Standards

Think of buying clothes. A ready-made shirt comes in fixed sizes decided in the factory long before you walk in. It is cheap, quick and you know exactly what you are getting, but it fits the average body and never quite fits yours. A tailor-made shirt is cut after the tailor has measured you. It fits perfectly, but it costs more, takes longer, and how good it is depends entirely on the tailor. A rule is the ready-made shirt of the law: the lawmaker cuts it in advance for the typical case. A standard is the tailor-made shirt: the judge cuts it to the facts after they have happened. The figure shows the same choice on the road.

Figure: When is the law's content fixed? A rule such as a speed limit of 50 is fixed when the law is made, so the citizen knows exactly where the line is and the court only applies it; a standard such as 'drive at a reasonable speed' lays down only a general test, so the citizen must guess and the court fixes the content after the event

1. Two Forms of Legal Command

Every legal directive must at some point be given concrete content. The only questions are who gives it and when. Louis Kaplow, in 'Rules versus Standards: An Economic Analysis' (Duke Law Journal, 1992), made this the defining feature: a rule is a law whose content is given before individuals act, while a standard is a law whose content is given after they act, by the adjudicator. A speed limit tells the driver the answer before he sets out; a duty to drive at a reasonable speed tells him only the question. The distinction is one of degree: 'no vehicles in the park' is a rule with an open texture (Note 47), and most real provisions lie between the poles.

2. The Case for Rules

Rules have four main virtues. They are cheap to apply: the court or official only has to find a few facts, such as the speed or the age, and need not weigh the whole situation. They are predictable, so people can plan and are warned before they act, which is why the criminal law leans towards rules (Art. 20(1); void for vagueness, Note 108). They constrain the decision-maker, reducing bias and inconsistency.

Their vice is that they are over-inclusive and under-inclusive. Frederick Schauer, in Playing by the Rules (1991), described rules as entrenched generalisations: the lawmaker takes a generalisation that is usually true (speed above fifty is usually dangerous) and makes it binding even in the cases where it is false. So the rule catches the careful driver at fifty-five on an empty road at dawn (over-inclusion) and misses the reckless one at forty-five in fog (under-inclusion). The price of certainty is that some cases are decided wrongly by design.

3. The Case for Standards

Standards have the opposite profile. They fit the case, because the adjudicator can consider every relevant circumstance: the fog, the school gate, the crowded bazaar. They adapt to new situations without amendment, and they use the knowledge available after the event rather than the lawmaker's guesses before it.

Their costs are also the mirror image. They are costly to apply, since each case calls for a full inquiry and often expert evidence. They give less warning, so cautious people over-comply and bold ones take chances. Different judges fill the same standard differently. And they delegate power to the adjudicator, acceptable only where he is trusted and competent; every standard is thus a grant of discretion, subject to the controls in Note 108.

4. Beyond Efficiency: Kennedy and Sullivan

Kaplow's analysis is economic. Rules cost more to promulgate, because the answer is worked out in advance; standards cost more to apply, because it is worked out in each case. So rules pay for themselves where the same conduct recurs frequently, and standards suit rare and varied situations.

Duncan Kennedy, a founder of Critical Legal Studies (Note 18), argued in 'Form and Substance in Private Law Adjudication' (Harvard Law Review, 1976) that the choice is not merely technical. Rules go with individualism: they mark out spheres within which each person may pursue his own interest. Standards go with altruism: they let the judge enforce duties of fairness and sharing. Since both attitudes are held at once, law swings between the two forms. Kathleen Sullivan, in 'The Justices of Rules and Standards' (Harvard Law Review, 1992), traced the same choice in constitutional adjudication, where some judges prefer bright-line rules and others balancing standards; Justice Scalia's 'The Rule of Law as a Law of Rules' (1989) is the best-known judicial defence of rules.

5. Rules and Standards Are Not Rules and Principles

Examiners often test the confusion between this note and Note 109. The rules and standards distinction concerns the form of a legal directive: how precisely it is specified and whether its content is fixed before or after the event. Dworkin's rules and principles distinction concerns how standards operate in reasoning (all-or-nothing against weight) and how they are identified (pedigree against a sense of appropriateness). The two cut across each other. 'Drive at a reasonable speed' is a standard in form, yet once the court has decided what was reasonable it determines the result conclusively, like a rule. 'No one may profit by his own wrong' is a principle in Dworkin's sense and also standard-like in form.

In an older usage, Roscoe Pound classified legal precepts into rules, principles, conceptions and standards, treating standards such as due care as measures of conduct applied according to the circumstances of each case (Note 14).

6. Indian Law: Rules and Standards at Work

The voting age shows why rules are chosen. Maturity to vote could be judged individually, but that would be costly and open to manipulation; a fixed age, lowered from 21 to 18 by the Sixty-first Amendment (1988), is over- and under-inclusive but administrable for hundreds of millions of voters. Child custody shows the opposite choice: under Section 13 of the Hindu Minority and Guardianship Act, 1956 the welfare of the minor is the paramount consideration, because families differ too much for any rule to fit.

7. When Should the Law Prefer Each?

8. The Two Compared

9. Evaluation

No legal system can do without either form; the question is always the mix. Rules decay into standards as courts carve out exceptions, and standards harden into rules as precedents announce tests. Kaplow measures the costs; Kennedy shows that the choice of form carries a choice of values; Schauer shows that the imperfection of rules is the price of their reliability. In India, Maneka Gandhi and Mithu push procedure and punishment towards standards that permit individual justice, while Art. 20(1) and void for vagueness push criminal prohibitions towards rules that warn.

10. Frequently Asked Questions

Q. What is the difference between a rule and a standard?
A. A rule fixes the content of the law in advance, so that only simple facts need to be found, as with a speed limit of fifty. A standard lays down a general test, such as reasonable speed, whose content is fixed by the court or official after the event, taking all the circumstances into account.

Q. Why are rules said to be over-inclusive and under-inclusive?
A. Because a rule turns a generalisation into binding law. It therefore covers some cases where the reason behind it does not apply, such as a safe driver slightly over the limit, and misses others where the reason does apply, such as a dangerous driver under the limit in fog.

Q. When should a legal system prefer a standard?
A. When the regulated situations are rare and varied, when an error in the unusual case would be costly, when the decision-maker is expert and accountable, and when conditions change quickly. Child custody, negligence and reasonable restrictions on fundamental rights are examples.

See also: Note 47 (legal certainty and discretion), Note 108 (legal certainty versus judicial discretion), Note 109 (rules versus principles), Note 49 (economic analysis of law), Note 18 (critical legal studies).