Rules of Conduct and Principles of Adjudication

Abstract

In this article I will show why our legal system's rules of conduct are presently unclear, how the system arrived at its current state, and what can be done to make the rules of conduct clearer. My arguments and conclusions are, in brief, as follows: The criminal law fails to communicate clear rules of conduct because it fails to distinguish this communicative function from that of adjudicating violations of the rules, which requires primarily an assessment of the blameworthiness of the violator. These two functions - announcing public rules of conduct and assessing individual blame in adjudication of a violation - have very different doctrinal foundations. The rules of conduct function gives the general population ex ante direction as to what they can, must, and must not do. The principles of adjudication function gives decisionmakers (i.e., prosecutors, juries, and judges) guidance in assessing ex post the blameworthiness of an individual's violation of the rules. Section II of this article illustrates the rules of conduct/principles of adjudication distinction by identifying how different aspects of current law effectively serve these functions.

Keywords: Conduct, criminal, adjudication

JEL Classification: K14