Rules vs. Standards, Naturalized: Using Philosophy and Behavioral Experimentation to Identify the Determinants of Constraint in a Legal Context

Harvard Law School, Accepted S.J.D. Dissertation

386 Pages Posted: 3 Aug 2012

Date Written: May 2012


This dissertation is a philosophically-minded, empirical study of constraint in the judicial decisionmaking context. It seeks to provide insight into the fundamental questions regarding law’s role in judicial deliberation. Does law make judges more likely to decide in accordance with its dictates? If so, does the specificity of the law’s directive matter? And if so, do extralegal factors play an important role? Our progress in answering these questions tells us something about judges, of course, but it tells us something about law’s capacities too.

What makes this project unique is that it applies methodologies drawn from both behavioral experimentation and philosophy to legal phenomena. While its focal point is judicial interpretation, it is distinct from many philosophical examinations of that subject in part because it takes observed human behavior so seriously; the very design of its testing instruments anticipates that interpreters are — somewhat predictably — motivated, fallible human beings. And it is distinct from many empirical analyses of that subject because it takes our concept of law and the phenomenological contours of interpretation very seriously, especially as they pertain to the rules/standards distinction in legal norm content.

I use rules (bright-line norms) and standards (evaluative norms) as a framework for understanding how people respond to law in judging scenarios. In most instances, I consider “pure” examples of rules and standards; these reflect law at its plausible maximal and minimal constraining power, at least according to conventional wisdom and most philosophical accounts. Because rules and standards have these differential characteristics and because they are present in virtually all real world legal systems, they serve as useful research tools; their combined use sets the parameters for law’s intrinsic capacity to influence the behavior of those subject to it.

As for the conditions extrinsic to the law, I have chosen those that both appear likely to affect constraint and that do not pose extraordinary challenges to implementation in a behavioral study. These conditions have the power fundamentally to alter the situation in which legal interpretation takes place because they connect with key aspects of the relationship between text and interpreter: namely, interpreter ability, availability of outside viewpoints, and interpreter motivation. To tap into these dimensions, I control the experimental interpreter’s ability to use resources, vary the interpreter’s access to party argumentation, and maintain and monitor the ideological salience of the facts underlying the disputes that the interpreter resolves. As a result, we gain insight into the manner in which law interacts with the interpretive environment and, thus, learn about the extent of law’s role in constraint.

Keywords: adjudication, judges, rules versus standards, attitudinalism, institutionalism, legal model, empirical legal studies, behavioral legal studies, Raz, Kennedy, judicial activism, judicial resources, pragmatism, naturalized jurisprudence, legal argument, law and psychology, experiment, Schauer

Suggested Citation

Sheppard, Brian, Rules vs. Standards, Naturalized: Using Philosophy and Behavioral Experimentation to Identify the Determinants of Constraint in a Legal Context (May 2012). Harvard Law School, Accepted S.J.D. Dissertation, Available at SSRN:

Brian Sheppard (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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