The Completeness of Rules

Extract

J. M. Steiner has argued, in a fashion to be gone into in a moment, that inevitably “the judge retains a field of choice” in legal decision. This choice is substantive and not merely discretionary in some soft sense which would find discretion, like judgment, necessary to the application of any and all rules. The thesis is not the weak one that an official, say a sports referee, must judge—and be allowed the discretion to judge—whether an infraction has been committed before he can apply the relevant rule. It is the strong one that, sometimes at least, an official must himself supply additional premises, which are from “outside” the law, for his decision. These external premises are of the same level of substance and import as any statute or precedent might be.

His argument for this position is negative in form. He holds that since no ordered set of “principles” or goals can give guidance on cases “outside” their range, and since many such cases will systematically exist, the law in order to be decisive—a virtue of high worth—must allow the judge the power to complete the legal argument for such excluded cases. He will do so presumably by supplying the missing premise from his “field of choice” and ex hypothesi not from precedents or statutes. Let us suppose, along with Steiner, that the set of premises whose adequacy is in question is a set which contains the goals of the law. Steiner's position then is that any such set which exists within the law and is “closed” to addition by the judge will be systematically inadequate for some or many cases which can come before him for decision.