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entitled to great deference, and (2) the current criminal system, although appearing to be rule based, relies largely on standards.

B. IMPLEMENTING A PRACTICAL CODE

1. Rules versus Standards: In General

Our view as articulated thus far is a standards-based view. Indeed, to this point, we have argued for only one standard: take only those risks to legally protected interests that, as you perceive those risks, are justified by your reasons for acting. One might wonder, however, whether the criminal law should be structured in this way. Should the criminal law be standards based, or should it contain discrete determinate rules?

Of course, the debate between rules and standards is not a new one.99 But the question for us is quite specific: Should the criminal law simply use one (or many) standards? Or should criminal law rules be criminal law rules?

In this section, we argue that, with a few exceptions, criminal law serves its function best by being standards based. Importantly, most of the values that underlie having rules are consequentialist. As we have mentioned, there is an ineliminable gap between when a legislator should create rules and when a citizen should follow them. A citizen can thus violate a justified rule justifiably. Such a citizen should not be punished because he is not culpable and therefore does not deserve punishment. A criminal law that truly cares about an actor’s culpability cannot punish a nonculpable actor simply to preserve the (consequentialist) value of rules.

2. The Argument for Rules over Standards

The value of rules is that they authoritatively settle moral disagreements.100 That is, even when individuals are ethically well-disposed

99T he problem is perhaps most famously embodied in the debate between Oliver Wendell Holmes and Benjamin Cardozo. Holmes sought to establish per se rules of conduct, believing that the “featureless generality” of negligence would ultimately give way to specific rules. See Baltimore & O.R.R. v. Goodman, 275 U.S. 66, 70 (1927); Oliver Wendell Holmes, The Common Law 111 (1881). In response, Cardozo noted that such rules could not take into account all the circumstances so as to adjudicate negligence correctly in future cases. See also Pokora v. Wabash Ry. Co., 292 U.S. 98, 104 (1934).

100For further discussion of this argument, see Larry Alexander and Emily Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law ch. 1 (2001).

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actors, they need the assistance of posited, determinate rules. Authoritative settlement by determinate rules resolves problems of coordination, expertise, and efficiency.

Rules solve coordination problems.101 In some cases, there are several incompatible ways to act and no reason to prefer one solution to another.102 Which side of the street to drive on is one example. In other instances, rules solve social coordination problems: in a world of imperfect information, and in which the morally right thing to do turns at least in part on what others are likely to do, rules provide actors with a basis for such a prediction.103

In other instances, the rules reflect the expertise of their promulgators. We may believe that a particular authoritative decision maker has greater moral and factual expertise than the typical rule subject. Although there may be reason to doubt this superior expertise in any given case, in general, legal rules can resolve questions about how to act that most individuals on their own may not be capable of resolving as well because they lack the rule promulgator’s information or expertise.104 Rules also avert errors. When, owing to complexity, actors must look at a multitude of factors in order to determine what to do, they may simply get the calculations wrong.105

Finally, rules reduce decision-making costs. It is simply more efficient for us to have a traffic law that tells us how fast to go than for us to calculate a safe speed each moment that we are driving.106 A rule that dispenses with the necessity of complex calculations can also be said to promote predictability because everyone will arrive at the same result – what the rule prescribes – rather than different results through different calculations.107

All of these benefits of rules stem from both rule addressees and rule enforcers having the same understanding of the rule.108 In other words,

101Id. at 56; Frederick Schauer, Playing by the Rules: A Philosophical Examination of RuleBased Decision-Making in Law and in Life § 7.7 (1991).

102Alexander and Sherwin, supra note 100, at 56.

103Id. at 57–58.

104Id. at 55.

105Schauer, supra note 101, at 150.

106Id. at § 7.3.

107Id. at 137.

108Id. at 138.

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it is rules’ determinacy that produces these consequential and hence moral benefits.

All of these reasons for having legal rules are thus reasons for having legal rules, not standards. Enacting a legal rule settles normative disputes. In this respect, standards are unhelpful. For example, laws that tell individuals to “drive safely” – a standard – leave (ethically well-disposed) individuals with no better idea about what to do than if there were no laws at all.109

As one of us has argued:

The quality that identifies a rule and distinguishes it from a standard is the quality of determinateness. A norm becomes a rule when most people understand it in a similar way. When this is so, the rule will give the same answer to unsettled moral questions to every affected individual and so bring about coordination. Although a standard is transparent to background moral principles and requires particularistic decisionmaking, rules can be applied without regard to questions of background morality. They are opaque to the moral principles they are supposed to effectuate. Thus, a rule is a posited norm that fulfills the function of posited norms, that is, that settles the question of what ought to be done.110

3. Problems with Rules

Despite the benefits of having legal rules, there are also problems with having them. Rules may be overinclusive.111 Because rules rely on acttype generalizations, and not on particulars, there is always a possibility that a particular instance of the act type would not be prohibited if one relied solely upon the underlying justification for the rule.112 Fred Schauer enumerates three possible ways that a rule might be ill-fitting: the probabilistic generalization may be incorrect on this occasion; the universal generalization turns out not to be universal; or a property suppressed by the rule is germane.113

109Alexander and Sherwin, supra note 100, at 29.

110Id. at 30.

111Rules may also be underinclusive. That is, the reason that justifies prohibiting conduct a may also extend to conduct type b, but the rule may apply only to conduct type a. Schauer, supra note 101, at 32–33.

112Id. at 32; Alexander and Sherwin, supra note 100, at 35.

113Schauer, supra note 101, at 39.

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Given that rules can be overinclusive, it is a bit surprising that rules are followed as often as they are. In our view, the reason why rules generally work is through a form of (benign) deception.114 People believe that rules dictate the morally preferable course of action in all cases that they cover, and because of that belief they blindly comply. The use of a rules-based law ultimately entails deceiving the citizenry, leading it to believe that rules dictate correct results when they do not.

Although the overinclusive nature of rules – the fact that they apply even when their underlying justifications do not – is generally troubling, it is far more troubling in the context of the criminal law. In the criminal law context, an overinclusive rule is a rule that creates the potential for punishing an innocent actor. There will be cases where it is rational for a lawmaker to create a specific rule, and at the same time, there will be cases where it is irrational for a citizen to obey it. For it is neither rational nor morally preferable for a citizen to obey a rule the underlying justification for which does not apply in the case at hand.

This gap – between what a legislator should proscribe and what a citizen should do – cannot be closed.115 There are different approaches to confronting this gap, but none of these approaches will eliminate it. Thus, a retributivist will have to face the reality that a rule that promotes authoritative settlement may do so at the expense of punishing an “innocent” person.

One of us has written extensively on this problem, so we briefly recapitulate the arguments for why the gap cannot be eliminated.116 One attempt at eliminating the gap is simply to calculate the value of having a rule and add that to the other reasons for following a rule, an approach dubbed “rule-sensitive particularism” by Fred Schauer.117 But there are problems with rule-sensitive particularism in many cases. First, when a rule is based on the supposed expertise of the lawmaker, an individual actor will have reason to violate the rule any time that she does not believe that the lawmaker is reliable source of advice. The rule may give guidance to the actor that this is the type of question about which

114See generally Larry Alexander and Emily Sherwin, “The Deceptive Nature of Rules,” 142

U. Pa. L. Rev. 1191 (1994).

115Alexander and Sherwin, supra note 100, at 54.

116See generally id. at ch. 4.

117Id. at 61–68; Schauer, supra note 101, at 94–100.

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individuals often err, but the rule then ultimately functions as simply an advisory rule of thumb – cautionary guidance that the individual may have the facts wrong. In those cases where the actor does not believe she has the facts wrong, however, she has no reason to follow the rule. There is no value of the rule to be put into the calculation. Second, with regard to coordination problems, if everyone is a rule-sensitive particularist, and thus every actor will look behind the rule (and many will err), then the individual rule-sensitive particularist will once again be caught in a coordination dilemma. Coordination problems can be solved only if most of the community members believe that rules are serious rules and do not engage in rule-sensitive particularism. Thus, rule-sensitive particularism leads to giving rules zero weight, with the result that there is no “rule value” for the rule-sensitive particularist to weigh against the reasons for violation.

A second approach – presumptive positivism – is also problematic. This view, endorsed by Fred Schauer, holds that rules are entitled to presumptive weight. It is difficult, however, to understand exactly how this presumption functions. Are all rules entitled to the same weight? Or does the amount of weight vary depending upon the rule? It may be that as a descriptive matter citizens do presumptively follow (deceptive) rules, but this does not eliminate the gap or the deception. At times, an actor will obey a rule (presumptively) that she should not. Conversely, a lawmaker may have reasons to enact a serious rule (because of problems with error) that a given individual will not have reason to obey.

A third approach is to view rules as “exclusionary” reason for action. In Joseph Raz’s view, a rule provides a “second-order” reason that excludes moral consideration of “first-order” reasons.118 However, if rules are necessary to solve coordination problems or to provide epistemic guidance, it is not clear how they have this exclusionary power. Moreover, if this exclusionary power is supposed to be derived from some sort of consent or precommitment, to follow the rules, it is difficult to see the moral value in obeying a morally suboptimal rule or application of a rule simply because one has consented or promised to do so. One cannot convey by promise or consent a moral right to demand

118Joseph Raz, The Authority of Law: Essays on Law and Morality 16–19, 22–23, 30–33 (1979).

But see Heidi M. Hurd, “Challenging Authority,” 100 Yale L.J. 1611 (1991).

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a performance that one does not possess a moral right to perform prior to such conveyance.

A final approach is to endorse Meir Dan-Cohen’s “acoustic separation.” 119 Under this approach, the serious rule is widely publicized, but a more lenient decision rule is actually employed by judges and juries. This approach provides the benefits of serious rules by reinforcing the view that rules are meant to be followed, but it also allows for justice in individual cases. The problem, in our view, is that it does so at too great a cost – it sacrifices the integrity of our government. It involves double deception. Not only are the rules deceptive in claiming (implicitly) that there are dispositive reasons to follow them (when there are not), but they are also deceptive with respect to the consequences of disobeying them.

Because the gap cannot be eliminated, the retributivist faces a dilemma. She must decide whether to announce broad standards – standards that ultimately rely on the preexisting moral knowledge of citizens – or narrow rules that may ultimately mandate the punishment of nonculpable actors.120

One puzzle that the retributivist-deontologist must resolve is how this overinclusiveness bears on the potential to punish the innocent. Recall that the moderate retributivist takes two positions about punishing people according to desert. First, the moderate retributivist holds that there is a deontological constraint against knowingly punishing the innocent. Second, the moderate retributivist believes that giving people what they deserve is intrinsically good. With respect to this second

119Meir Dan-Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law,” 97 Harv. L. Rev. 625 (1984).

120Doug Husak argues that overinclusive legislation is permissible so long as it is no more extensive than necessary. Husak, Overcriminalization, supra note 3, at 155–156. In justifying a blanket rule prohibiting crossing a median line on a curved highway, Husak argues that, although some actors will be epistemically privileged (and know that crossing is safe), others will be epistemically arrogant (and therefore culpable). According to Husak, because there is no reliable method to distinguish these two types of actors, we may justly punish them both.

The problem, however, is that even if we cannot distinguish these two actors ex ante, there may be ways to distinguish them ex post. We must justify not only a rule that may be overinclusive but also punishing an actor for violating the rule in situations in which, had we perfect information (or simply the information available ex post), we never would have criminalized his conduct to begin with.

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element, a retributivist can and will trade off the good of punishing the guilty against the evil of mistakenly punishing the innocent. And because we may believe that the latter is a worse evil than the former is a good, we set our burden of proof to favor false negatives over false positives.

However, with respect to the overinclusiveness of rules, although ex ante they, too, may appear to present a trade-off of risks, they do not do so ex post, at the time of the imposition of punishment. So we must ask, what should the law do when it is clear that an actor is, in fact, morally innocent but has been caught within the web of an overinclusive rule? When the judge sees before her the person who falls within the overinclusive gap, the judge – and thus our criminal justice system – does not risk punishing the innocent. If it punishes the morally innocent person, it does so knowingly.

The result is that the retributivist must now confront the question of what the deontological constraint against punishing the innocent means. If, as we argued in Chapter 4, the deontological constraint is only against appropriating people, then although we may not use the innocent as scapegoats, it could nonetheless be the case that we may permissibly punish a person whom we know to be morally innocent (nonculpable). The argument would be that although the overinclusive rules are overinclusive for consequentialist reasons, they are not appropriating the moral innocents who fall within the rules’ overinclusive scope to produce those beneficial consequences. If so, then this overinclusiveness gap is not so problematic; rather, our notions of retributivism must be readjusted to allow for the punishment of the nonculpable.

For those who believe this case to be a strong counterargument to the position we take in Chapter 4 with respect to deontological constraints, we note that the intending versus foreseeing position is no better off. First, it seems to us that when one punishes a nonculpable actor caught within an overinclusive rule, under the common understanding of intention, one is not purposefully punishing the innocent but is doing so only knowingly. Under some formulations of the deontological constraint, knowing punishment of the innocent would itself violate it. Moreover, we think the case can be made that this is a case of intending to punish the innocent. If one intends to punish an actor and knows that actor is morally innocent, then it seems to us that one has intentionally punished