Rules v Principles | I am technology. #blog by Trey Warme, San Diego
“I have only two rules which I regard as principles of conduct. The first is: Have no rules. The second is: Be independent of the opinion of others.” ~ Albert Einstein
My Uncle Bill, who is smart as a whip and a seasoned leader through and through, over last Thanksgiving holiday made a comment about rules v principles which I have for some reason thought of numerous times since: rules are necessary until you understand the principle; once you understand the principle rules are no longer necessary.
I ran this idea of rules being necessary until you understand the principle by a marketing friend who replied, even if I understand a principle, I may not agree with the principle so I’m not necessarily going to follow it. That’s true, everyone may not agree on the validity of a principle. In that case, will rules always be necessary?
So what is a principle anyway? Dictionary.com says it’s a distinctive ruling opinion. Our opinions make our realities. My reality, may not be your reality, or any reality for that matter? So, maybe what we really have is Rules v Principles v Reality?
I found this great academic article on the subject, Rules and Principles: A Theory of Legal Certainty, by John Braithwaite published on the ANU Australian National University Website, which conveys that rules are specific prescriptions and principles are unspecific or vague prescriptions.
Opening his ANU article, John writes, “The theory advanced is that precise rules more consistently regulate simple phenomena than principles. However, as the regulated phenomena become more complex, principles deliver more consistently than rules. A central reason is that the iterative pursuit of precision in single rules increases the imprecision of a complex system of rules. By increasing the reliance we can place on part of the law we reduce the reliability of the law as a whole. Then it is argued that a consistency in the complex domains can be even better realized by an appropriate mix of rules and principles than by principles alone. A key choice here is between binding rules interpreted by non-binding principles and non-binding rules backed by binding principles. The more complex the domain, the more likely it is the latter will deliver greater consistency. Robert Baldwin argues the reason “Why Rules Don’t Work” is that they are typically evaluated without reference to the context of their implementation. Hence we cannot understand when law is and is not consistently implemented by the police without confronting the fact that police culture is not a rulebook, but a storybook. In complex domains, when police, regulatory inspectors and judges enforce rules consistently, they do so as a result of shared sensibilities. Regulatory conversations that foreground obligatory principles buttressed by non-binding background rules are hypothesized to be the stuff of legal certainty on such complex terrain.”
A precise rule maybe more consistent, and thereby fair, in regulating simple events. In more complex events, however, principles may deliver more consistently and with greater fairness, than rules.
There are perhaps many simple events that can possibly be fairly regulated with precise rules. Let’s face it, life is complex, an interwoven, changing mesh of happenings, feelings and interactions. A specific rule may not always be able to account for the reality of all of the circumstantial factors of an event, a principle may provide a little more adaptability to the unique aspects of a situation allowing a ruling to be made with reference to the context of the events.
The idea of rules v principles has been tossed around since Aristotle’s time. In American legal writing, the rules vs standards debate is based on much the same concept of rules are specific prescriptions and principles are unspecific or vague prescriptions and the question of, “is the rule of law necessarily a rule of rules or can it be a rule of principles?”
We all have varying stages of understanding. We choose whether to agree on principles based on our interpreted reality. We are all different. Will rules always be necessary?
- How do you think we can achieve greater consistency and fairness of law: with binding rules interpreted by non-binding principles, or with non-binding rules backed by binding principles?
- Do rules work?
- What do you think? Let’s hear it in the comments below! Unless, of course, you have a binding rule or principle prohibiting you.
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