Most professions seem to have a best-kept secret, a mindblowing paradigm that few outsiders know. Law is no different: lawyers articulate the problem of rules and standards, a dilemma which leads to the conclusion that just lawmaking is inherently impossible.

Stated as a syllogism, the problem of rules and standards says that all laws are either rules or standards. Both rules and standards have serious, unavoidable drawbacks that render them unable to achieve justice perfectly. Therefore, no law can truly accomplish justice.

Although I first heard the dilemma stated formally during law school, it was familiar from my childhood. When my siblings and I were quite young, our parents created numerous straightforward rules for our behavior—no snacks after 3pm, no reading during dinner, no damaging each other’s belongings without permission. Eventually, my siblings and I complained about the number and specificity of the rules. There were so many that it was hard to remember them all. Our parents had their own dissatisfactions with the system: we were creatively disobedient, exploiting every loophole.

Attempting to solve these problems, my parents announced a clever solution: there were now only two parental directives, “respect others” and “respect yourselves.” I could immediately see some ways these new commandments would restrict my behavior. Making myself sick on chocolate milk would violate the requirement that I respect myself; giving my sister’s doll a buzz cut would violate the requirement that I respect her.

However, to a six-year-old, these Two Commandments were not always predictable in their application. Even trying my best in good faith, I would not have known that running with scissors would be considered disrespecting myself, nor would I have known that chopping up a microwave user’s manual with those same scissors would be considered disrespecting my mother.

This is the essence of the problem of rules and standards. Generally, rules have hard edges and prohibit specific behaviors, while standards are less specific and require discretion to enforce. Thus, my parents’ first approach, specifically naming prohibited behaviors, was rules-based. As I discovered, rules create loopholes—roadmaps for their own evasion. Loopholes exist when rules under-include, failing to prohibit a harmful behavior. The opposite problem is over-inclusion, when a rule prohibits harmless behavior. For example, if the rule is “no snacks after 3pm” because dinner is usually at 5pm, but dinner is delayed until 8:30pm one night, the rule has over-included: it would have been harmless to eat a cookie at 4pm. Parents can introduce case-by-case exceptions to over- or under-inclusiveness, but legislators must make generally applicable laws. Inevitably, even the best-constructed laws over- and under-include in some applications.

By contrast, my parents chose a different set of problems with their standards-based approach. One problem is that standards fail to provide clear notice of prohibited behavior. This is especially problematic in the legal context, where a misstep could lead to felony charges and a lengthy prison sentence. Laws that give notice of prohibited conduct are a hallmark of a free country; conversely, legal systems in which judges or autocrats make ad hoc decisions are hallmarks of fascist regimes.

Another problem with standards is their higher administrative costs: enforcing standards is more difficult than enforcing rules. To get at this, imagine that American driving laws were standards (“drive at a safe speed”) rather than rules (“the speed limit is 55 miles per hour”). The rule-based system makes issuing tickets easy, and means that traffic hearings, when required at all, are just seconds long. This is because only one fact matters: whether the car was moving faster than the speed limit.

If, instead, this law were standard-based, police officers would need to prove an incredibly—perhaps infinitely—long list of factors including road conditions, the car’s characteristics, the driver’s characteristics and skills, the traffic conditions, etc. A mere speeding ticket would require a skilled lawyer and a jury trial, and the justice system would balloon to handle the increased work.

However, some regulations should involve detailed factual inquiries; child custody issues, where the court is attempting to determine the child’s best interests, exemplify the sort of complex inquiries that do not and should not reduce to a single fact.

Because both alternatives are imperfect, the task of lawmakers is to determine whether a rule or a standard is “less bad” for each situation.

As explored above, both rules and standards are deeply imperfect. For example, the Fifth Amendment’s prohibition against double jeopardy, being tried twice for the same crime, is a rule. For policy reasons beyond this article’s scope, a rule is probably “less bad” than a standard in this area. Yet good rules like double jeopardy still inevitably lead to bad outcomes, as in the case of Mel Ignatow.

In 1991, Ignatow was tried for murdering his girlfriend, but a jury found him not guilty. Ignatow sold his house to finance his defense. As the new owners were replacing the carpet, they discovered a hidden roll of undeveloped film. When developed, the film contained photos Ignatow and his accomplice had taken while committing the murder. Despite the bulletproof case this new evidence created, the double jeopardy rule demonstrated its over-inclusiveness: Ignatow could not be retried for the murder, and a murderer went unpunished.

Legislators work to minimize the number of cases like this where the regulation misfires and produces an unintended result. Yet the problem of rules and standards demonstrates that the inability to do justice is baked into every regulation ever promulgated. No matter the legislators’ skill and discernment in choosing between rules and standards, cases of manifest injustice like Ignatow’s will still happen. No human society can be governed justly.

This realization should whet our appetites for God’s perfectly governed Kingdom.

The deepest difference between rules and standards lies in when they receive their content. A rule has content immediately; the legislature announces it fully formed, like “the speed limit is 55 miles per hour.” By contrast, standards receive their content after promulgation. This is the source of the problems of rules (inflexibility, over- and under-inclusiveness) and the problems of standards (lack of notice, inconsistent administration, high administrative costs). It is the very heart of the dilemma.

A law with the benefits of both rules and standards would have to be a standard with immediate content, or a rule without immediate content. But each is as much of a logical absurdity as a round triangle: it goes against the nature of the thing itself.

A person, though, could solve the dilemma if he were knowable and infinitely comprehensive. This would achieve the best characteristics of a rule and a standard without the accompanying drawbacks. Knowability eliminates the problem that standards do not give sufficient notice. Comprehensiveness means that content is immediately established. When God says, “Be good,” He expresses the exact same meaning as if He had said, “Be like me.” When He says, “That is evil,” He means, “That is not like me.”

The alternative to the Rule of Law has long been understood to be the Rule of Man—an autocracy. Of course, America was founded on the conviction that, mildly put, autocracy comes with its own set of drawbacks. Yet God, because of His unchanging nature, dodges the worst characteristics of rules, standards, and government by fickle autocrats and represents the only solution to the problem of rules and standards.

The problem of rules and standards overflows with hope.

Ultimately, the dilemma highlights the inevitable failure of human justice systems and the sufficiency of divine justice. The perfect justice system must not measure behavior against a rule or a standard. Instead, it must measure behavior against a person.

This should terrify us: our behavior is being measured against the unachievable standard of God Himself. Then again, we should be richly comforted: knowing our inability to achieve that perfection but still desiring fellowship with us, God Himself filled up our inadequacies in the person, life, death, and resurrection of Jesus.

One problem remains: how does anyone receive notice of what a person would do? God has solved that problem, too. He has set His laws in our hearts by sending the Holy Spirit to indwell us. A perfect, transcendent rule-standard exists, and He lives within us.

Perhaps this explains why the New Testament writers tell us so often to look toward God instead of following behavioral prescriptions: when rules and standards fail, we must look instead to a Person. Perhaps this adds to the fullness of God’s meaning that He frustrates the wisdom of the wise. Our best efforts to enumerate rules or craft standards will inevitably and predictably fall to pieces unless they turn our eyes and hearts toward God.

Human systems will never achieve perfect justice. However, this does not mean that justice is a meaningless concept, or that it will never be achieved. It simply means that, like all other human endeavors, pursuit of justice is good and productive only insofar as it directs us toward the person of God, and it will achieve its object and fulfillment only when God takes up His throne in the city of His people and rules them with a scepter of justice.

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Sarah Welch
Sarah is a 2016 alumna of Ohio University, where she received a degree in music performance, minors in physics and mathematics, and certificates in Italian and Law, Justice & Culture Studies. At Ohio University, she served in the leadership of the Music Teachers National Association, Ratio Christi, Cru, and student government. She has presented her work at a dozen conferences around the country in the fields of music pedagogy, performing arts medicine, and bioinformatics. Sarah is a rising 2L at the University of Chicago Law School, where she is a Kirkland and Ellis Scholar.


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