46 Pages Posted: 1 Oct 2002
The theory advanced is that precise rules more consistently regulate simple phenomena than principles. However, as the regulated phenomena become more complex, principles deliver more consistency than rules. A central reason is that the iterative pursuit of precision in single rules increases the imprecision of a complex system of rules. By increasing the reliance we can place on a part of the law we reduce the reliability of the law as a whole. Then it is argued that consistency in complex domains can be even better realised by an appropriate mix of rules and principles than by principles alone. A key choice here is between binding rules interpreted by non-binding principles and non-binding rules backed by binding principles. The more complex the domain, the more likely it is the latter that will deliver greater consistency. Robert Baldwin argues that the reason "Why Rules Don't Work" is that they are typically evaluated without reference to the context of their implementation. Hence we cannot understand when law is and is not consistently implemented by the police without confronting the fact that police culture is not a rulebook, but a storybook. In complex domains, when police, regulatory inspectors and judges enforce rules consistently, they do so as a result of shared sensibilities. Regulatory conversations that foreground obligatory principles buttressed by non-binding background rules is hypothesised to be the stuff of legal certainty on such complex terrain.
Suggested Citation: Suggested Citation
Braithwaite, John Bradford, Rules and Principles: A Theory of Legal Certainty. Australian Journal of Legal Philosophy, Vol. 27, pp. 47-82, 2002. Available at SSRN: https://ssrn.com/abstract=329400 or http://dx.doi.org/10.2139/ssrn.329400