Benjamin Bestgen: Tools and (or?) rules

Benjamin Bestgen: Tools and (or?) rules

Benjamin Bestgen

Benjamin Bestgen this week contrasts the letter of the law with its spirit. See his last jurisprudential primer here

As a species, humans value play, sports and games. For example, probably all of us know somebody who enjoys cardgames, boardgames, videogames or various kinds of table-top games. Some, like Go, chess or bridge have a small set of reasonably easy-to-learn, unambiguous rules. Others, like Warhammer 40K, Dungeons & Dragons, Vampire: The Masquerade, Arkham Horror, Magic: The Gathering or Gloomhaven, have rulebooks the size of novels, with considerable room for ambiguity and disputes.

Indeed, seasoned gamers will occasionally complain about “rules lawyers”: players who persistently debate the applicability or literal meaning of rules, preventing with their legalistic manner the continuation of the game.

Naturally, it is appropriate to question the applicability of or ambiguity in a rule and try to make sense of its most probable meaning where it’s not perfectly clear. But “rules lawyers” go further: they look aggressively for interpretations (and loopholes) based on the exact wording of a rule or concept, complying with the letter of the rule but arguably not its spirit or purpose in the game.

Of course, “rules lawyers” will not accept their nuisance label. In (self-)righteous indignation they accuse more flexible players of not playing properly or even cheating by valuing some alleged “spirit” or “purpose” of a rule over and to the detriment of its actual wording.

Jurists have similar quibbles on occasion: we have probably all experienced lawyers we found rigid, detail-obsessed, precedent-driven and literal; and others who acted more purposive, flexible and happy to accept reasonable assumptions and interpretations in order to achieve a desired outcome.

Rules as tools

As a point of practical jurisprudence, most clients won’t care what approach a lawyer takes as long as the desired or agreed outcome is delivered, at a reasonable price. They need their lawyer to be a craftsman, selecting the right tools for the job and applying them competently. Some lawyers learn over time when to show flexibility, pragmatism and commerciality and when to insist on a specific meaning of a word or clause and act in a legalistic, textualist fashion.

But others consider such context-sensitivity unprincipled and embrace a style that in case of uncertainty either focusses more on “the letter of the law” or its “purpose” – consider the US Supreme Court, where the “textualist/originalist” versus “pragmatic/living-constitution” approach of individual judges is subject of heated social and political debate.

That said, viewing rules, their interpretation and application merely as tools to achieve desired results for clients potentially risks encouraging sharp practice, meaning sly behaviour which is technically still lawful but potentially unethical, unfair or prejudicial to justice. In a judge, such a mindset could bolster judicial activism or provide cover for a judge’s biases influencing decisions on the law.

As in gaming, if a player loses sight of the ethical dimension of the game and good sportsmanship, he’ll gain a reputation for spoiling games through bad behaviour and might get punished or excluded. We should also be mindful that laws are a specific kind of norms: they are not the rules of a game but part of the social fabric of our society, steeped in morality, politics, economics, history and the complexities of human behaviour.

Healthy tension

Interpretation of laws, regulations and legal concepts will arguably always be contentious. Even in simple examples there is room for conflict: say you drove 45mph in a 40mph zone. The law is clearly worded: if you drive faster than 40mph in that zone, you are guilty of a speeding offence.

  • A purposive reading might argue that speed limitations exist to make traffic safer and to prevent accidents: the excess of 5mph is within reasonable tolerance, the weather was good, the road clear, few cars or people around – the matter is at worst a minor breach but really just a technicality not worth pursuing.
  • A literal reading counters that there is no such thing as a “minor, technical breach”: the rule was broken or it wasn’t, in the same way a woman cannot be “a little bit pregnant”: she either is or she isn’t. It can be agreed that the excess of 5mph is not as bad as e.g. an excess of 30mph and maybe a warning is sufficient. But the law was broken and we cannot argue that away.

Lawyers, politicians, police, regulatory bodies, natural and legal persons will argue and disagree about rules, their meanings, limits and ambiguities. Some try to push perceived boundaries in pursuit of their causes while others aim to curb attempts to get too creative. Going to the courts is designed to help us gain clarity or at least authoritative reasoning on what the rules allow or not.

In a functioning legal system, this tension is not only to be expected, it is healthy and necessary. The German concept of Rechtspflege includes the idea that legal relations between people, institutions and even the rules themselves, have to be cared for, similar to living, organic processes. They require resources and attention so we can all benefit from an orderly, functioning justice system.

This includes a regular examination and testing of the rules themselves and the attitudes we take towards them. So as we start this new year 2021 it’s as good a time as any to reflect: what does the law mean to you?

The author thanks Mr Andrew Rummery for inspiration and discussion leading to this article.

Benjamin Bestgen is a solicitor and notary public (qualified in Scotland). He also holds a Master of Arts degree in philosophy and tutored in practical philosophy and jurisprudence at the Goethe Universität Frankfurt am Main and the University of Edinburgh.

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