The Model of Rules

Abstract

Lawyers lean heavily on the connected concepts of legal right and legal obligation. We say that someone has a legal right or duty, and we take that statement as a sound basis for making claims and demands, and for criticizing the acts of public officials. But our understanding of these concepts is remarkably fragile, and we fall into trouble when we try to say what legal rights and obligations are. We say glibly that whether someone has a legal obligation is determined by applying "the law" to the particular facts of his case, but this is not a helpful answer, because we have the same difficulties with the concept of law. We are used to summing up our troubles in the classic questions of jurisprudence: What is "the law"? When two sides disagree, as often happens, about a proposition "of law," what are they disagreeing about, and how shall we decide which side is right? Why do we call what "the law" says a matter of legal "obligation"? Is "obligation" here just a term of art, meaning only "what the law says"? Or does legal obligation have something to do with moral obligation? Can we say that we have, in principle at least, the same reasons for meeting our legal obligations that we have for meeting our moral obligations? These are not puzzles for the cupboard, to be taken down on rainy days for fun. They are sources of continuing embarrassment, and they nag at our attention. They embarrass us in dealing with particular problems that we must solve, one way or another. Suppose a novel right-of-privacy case comes to court, and there is no statute or precedent either granting or denying the particular right of anonymity claimed by the plaintiff. What role in the court's decision should be played by the fact that most people in the community think that private individuals are "morally" entitled to that particular privacy? Suppose the Supreme Court orders some prisoner freed because the police used procedures that the Court now says are constitutionally forbidden, although the Court's earlier decisions upheld these pro-