LAW AND POLITICS: WHAT IS THEIR RELATION?

LARRY ALEXANDER *

That is the topic about which I have been invited to speak.

As a professional matter, I am afraid that although I know a
few things about law, I know really nothing about politics.
What I remember from my college courses in political science
can be boiled down to the Harold Lasswell view that politics is
about who gets what, when, and how. 1
So I come to this topic with a very limited toolkit. Neverthe-
less, I shall take out my hammer and see if I can turn the topic
into some nails. My forte, if I have one, is taxonomy and analy-
sis. Not exciting perhaps, but I hope clarifying. And clarity is,
in this as in so many matters, a necessary pre-condition for
wise policy, and confusion is a recipe for disaster.
I begin with some stipulations. First, politics—as I shall be
using the term—is the process of deciding what a group, or a
part thereof, should do based on first-order practical reasons.
First-order practical reasons are all-things-considered reasons,
moral and prudential. 2 Those reasons may dictate that a partic-
ular action should be taken (or omitted) by a particular actor in
a particular situation. But they may also dictate that all or
many actors should take (or omit) a particular action in a range
of situations.
Second, law—as I shall use the term—is those norms that,
through the first-order practical reasoning of politics, those
who have the authority to do so have decided should obligate
those to whom those norms are addressed. Although it is per-
haps not the only outcome of politics, it is the most significant
outcome. The primary aim of politics is to produce the norms
that are law. 3

* Warren Distinguished Professor of Law at the Univ. of San Diego Sch. of Law;
Lecture at the Harvard Law Sch. Herbert W. Vaughan Acad. Panel, Law & Politics:
What is their Relation? (Mar. 24, 2017).
1. See generally HAROLD D. LASSWELL, POLITICS: WHO GETS WHAT, WHEN, HOW
(1936).
2. See JOSEPH RAZ, PRACTICAL REASON AND NORMS 16 (1999).
3. See ARISTOTLE, NICOMACHEAN ETHICS bk. VI, at 98 (W.D. Ross trans., Batoche
Books 1999) (c. 384 B.C.E.).
356 Harvard Journal of Law & Public Policy [Vol. 41

Third, legal norms can either be rules or standards. When

they fully and clearly determine what the law’s subject should
do in a range of situations, they are rules. When addressed by
rules, law’s subjects are supposed to do what the rules require
rather than what they believe their first-order practical reason
dictates that they do. 4 When those norms do not fully deter-
mine what the law’s subjects should do, but instead leave open
a domain in which those subjects should follow the dictates of
first-order practical reasoning, then those norms are to that ex-
tent standards. 5
But why have rules at all? In other words, why not decide
everything by means of first-order practical reasoning? Put dif-
ferently, why is not our only law what I call the Spike Lee law:
“Do the right thing.”? 6 The Spike Lee law is the queen of
standards. Lesser standards are circumscribed by rules. But
what is the problem with the Spike Lee standard? To repeat,
why have rules at all?
The answer is obvious. When I ask my first-year law stu-
dents this question in their very first law school class, they
have no trouble coming up with the right answer. In a society
such as ours, people cannot agree on what “the right thing” to
do is. There are many reasons why they cannot. First, they have
different opinions about what the correct moral principles are.
Second, even when they agree about moral principles at an ab-
stract level, they disagree about how those principles apply.
For they disagree about the factual matters on which correct
applications of moral principles depend. And that means that
at least some of the people, even if well motivated, will end up
doing “the wrong thing.” Moreover, because of these disa-
greements, they cannot coordinate their actions with those of
others, and the lack of coordination will produce huge moral
costs from everyone’s perspective. Thus, settlement of what
ought to be done is necessary to avert the moral costs of mis-
taken moral views, mistaken applications of correct moral
views, and lack of coordination. Settlement is achieved by de-
terminate rules. Even first-semester law students understand
this when asked “Why not just the Spike Lee standard?”

4. Cf. Raz, supra note 3, at 154–55.

5. See Kathleen Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV.
L. REV. 22, 57–61 (1992).
6. DO THE RIGHT THING (Universal Pictures 1989).
No. 1] Law and Politics 357

Having now discussed politics, law, and legal norms as ei-

ther rules or standards and why rules are desirable, let me now
turn to the topic of legal interpretation. Some—even members
of the Harvard Law School faculty—believe that there is no one
thing that interpretation is. 7 I agree that there are many things
that can be called interpretation. But we should not get hung
up on the word. What we need to ask in the legal context is
what is the proper approach by those subject to laws when
questions arise regarding the meaning of those laws. 8 That is
the activity we should be interested in when the topic of legal
interpretation is broached.
The important distinction here is between those to whom we
have given the authority to determine what norms we should
comply with—legislators—and those who are supposed to
comply with the norms legislated by those with legislative au-
thority. The latter group includes all the addressees of the laws,
judges and ordinary citizens alike (as well as legislators in their
capacity as ordinary citizens). But if judges and citizens are
supposed to comply with the norms produced by those with
the authority to produce them, then when those norms are
promulgated and encoded in a text, judges and citizens are
supposed to figure out what the norms are that the legislators
encoded in that text. 9 In other words, they are supposed to fig-
ure out what the intended meaning of that text is, 10 not just any
meaning that the text might have were it authored by other
than its actual authors or for purposes other than conveying
what norms those with the authority to do so determined
should govern. 11 The legislators have decided upon such norms
and have attempted to convey to the rest of us—judges and
citizens alike—what those norms are in the only way possible,
which is through symbols. The symbols are their code. 12 And if
we do not seek to determine what they mean by their code,
then we will not ascertain what norms they intend for us. That

7. See Cass R. Sunstein, There is Nothing That Interpretation Just Is, 30 CONST.
COMMENT. 193, 193–94 (2015).
8. See Larry Alexander, Originalism, the Why and the What, 82 FORDHAM L. REV.
539, 540 (2013).
9. See id.
10. See Larry Alexander, Telepathic Law, 27 CONST. COMMENT. 139, 139–40 (2010).
11. See id. at 141.
12. See id. at 139.
358 Harvard Journal of Law & Public Policy [Vol. 41

would deprive them of the legislative authority that we pur-

port to give them. Instead, we will have transferred that au-
thority to others or to some mindless process, such as the me-
anderings of linguistic usage. A text, untethered from the
meaning its authors intended to convey by means of it, is just a
set of marks or sounds that can mean anything whatsoever. But
as the code chosen by its actual authors to communicate the
meaning they intend, it means what they intended it to mean.
Any other meaning attributed to it reduces its authors—in this
case, legislators—to nothing more than producers of marks or
sounds. They will not be producers of legal norms, and thus
they will not be what they are supposed to be—legislators.
So legal interpretation, properly understood, is the attempt
to ascertain the legal norms with which the legislators have
chosen to govern us and that they have communicated to us
through symbols. 13 (How else could they communicate those
norms to us? Through telepathy? 14) But one more thing about
legal interpretation must be kept in mind. When interpretation
reveals that the enacted norm is a rule, the interpretive process
continues to flesh out the rule’s content. When, however, inter-
pretation reveals that the enacted norm is a standard, the inter-
pretive process is at an end. 15 For fleshing out the standard’s
content is a matter of first-order practical reasoning, which is
not interpretation. Rather, it is politics.
To this point I have been laying groundwork. I have intro-
duced politics, law, rules, standards, and interpretation. And I
have distinguished between following rules and first-order
practical reasoning. With these things in mind, let us return to
the overarching topic, the relation of law and politics. In my
opinion, the most important aspect of that relation is one I have
written about often. It is what my friend and occasional co-
author Fred Schauer calls the “asymmetry of authority” 16 and
what I call “the gap.” 17 Both he and I believe it is the single

13. See Alexander, supra note 8.

14. See Alexander, supra note 10, at 142.
15. But see Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE
L.J. 557, 562–63 (1992).
16. See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMI-
NATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 128–34 (1991).
17. See LARRY ALEXANDER & EMILY SHERWIN, THE RULE OF RULES: MORALITY,
RULES, AND THE DILEMMAS OF LAW 54 (2001); Larry Alexander, The Gap, 14 HARV.
J.L. & PUB. POL’Y 695, 695 (1991).
No. 1] Law and Politics 359

most important and revealing prism through which to view

legal phenomena.
What is the gap, and why does it exist? Put succinctly, the
gap is the difference between what rational legislators’ first-
order reasoning tells them they should require you to do and
what your first-order reasoning tells you you should do. 18 The
gap arises because our first-order reasoning can lead to differ-
ing conclusions, and, as I have said, determinate rules are nec-
essary to settle what should be done and thus avert the moral
costs of uncertainty, disagreement, and lack of coordination.
But rules settle by being relatively simple, blunt, and rigid.
They cannot capture all of the nuance and complexity to which
first-order practical reasoning will attend. Even if everyone had
the same values, and even if the legislators did their job per-
fectly and enacted the ideal set of rules, those rules would often
dictate acts that some people’s first-order practical reasoning
would veto. In the case that our first-order practical reasoning
vetoes the legislators’ rules, we will face a dilemma. Our prac-
tical reasoning will tell us that the legislators’ practical reason-
ing—politics—has led the legislators to require us to follow
rules that our practical reasoning tells us we should not follow.
Our standards tell us we need to implement them through
rules that our standards also tell us to disobey. The value of
following our first-order practical reasoning competes with the
value of obeying the legislators’ first-order practical reason-
ing—itself a product of our first-order practical reasoning.
There is, I believe, no way to eliminate this gap. The problem
is not that we are not angels. The problem is that we are not
omniscient gods. Omniscient gods could live by standards
alone. “Do the right thing” would be the only law they would
need, for they would know what is “the right thing” to do
when someone disobeyed.
So we, who are not omniscient gods, need rules. But rules,
even ideal rules, will prescribe conduct that some first-order
practical reasoning rejects. To put it in its near paradoxical
form, our first-order practical reasons dictate that we should
have rules that dictate acts that some of our first-order practical
reasoning rejects. Therein lies the gap.

18. See Alexander, The Gap, supra note 17, at 695–96.

360 Harvard Journal of Law & Public Policy [Vol. 41

I will briefly discuss the various strategies offered to close

the gap and tell you why I believe they all fail. One strategy—
what Fred Schauer calls presumptive positivism 19—tells us to
put a thumb on the scales in favor of what the rules prescribe.
The problem is that, first, this only narrows but does not close
the gap, and second, and more fundamentally, our first-order
practical reason can give no weight to such a presumption be-
cause the presumption competes with our first-order practical
reasoning.
A second strategy, found in the writings of Joseph Raz, is to
treat rules as exclusionary reasons. 20 Once a rule applies to us,
we must not act on the reasons on which the rule is based. 21
The problem is that although rules purport to exclude acting
for the reasons that the rule is based on if such an action differs
from what the rule prescribes, this just restates the problem of
the gap rather than solves it. 22 Or if it solves it, it does so by fi-
at.
A third strategy, one that looks more promising, is closing
the gap by imposing sanctions on rule violators. 23 The thought
is that the prospect of sanctions will align the actor’s first-order
reasons with what the rules require. 24 Unfortunately, this strat-
egy too fails. For one thing, sanctions give actors prudential
reasons to abide by rules. But they do not necessarily give ac-
tors moral reasons to do so. 25 And if the sanctions are severe
enough to turn the prudential reasons into moral reasons, they
need judges who are willing to apply them to rule violators
who the judges know acted on their first-order practical rea-
sons and for that reason do not deserve punishment. Moreover,
the judges themselves are subject to the gap. The rules requir-
ing them to sanction rule-violators may conflict with the judg-
es’ first-order practical reasons. And who will sanction the
judges who follow their first-order reasons rather than the

19. See Frederick Schauer, Rules and the Rule of Law, 14 HARV. J.L. & PUB. POL’Y
645, 674–77 (1991).
20. See JOSEPH RAZ, THE AUTHORITY OF LAW 16–19 (1979).
21. See id. at 16.
22. See Larry Alexander, Law and Exclusionary Reasons, 18 PHIL. TOPICS 5, 8–10
(1990).
23. See id. at 6.
24. See id.
25. See RAZ, supra note 2, at 162–64.
No. 1] Law and Politics 361

rules? Unless judges are automatons when it comes to sanc-

tioning rule-violators, sanctions will not eliminate the gap. 26
(Jeffrey Brand-Ballard has an entire book on the problem of the
gap as it applies to judges. 27 I will at the end of this tell you of
my own experience with judges’ confronting the gap.)
A fourth strategy is deception. That is, close the gap in favor
of rule-following by deceiving the public into believing that the
rules align with their first-order practical reasons. 28 Make them
into rule fetishists. This strategy is similar to what Bernard Wil-
liams called “government house utilitarianism,” a reference to
the idea he ascribed to Britain’s colonial rulers that it would be
more utilitarian to encourage the natives to abide by their local
mores than to urge them to act as utilitarians. 29 The strategy is
also reflected in Hare’s two level utilitarianism, in which the
“archangels” are conscious utilitarians and the “proles” are
rule-followers, and in other two-level forms of consequential-
ism. 30 But the problems with deceptive theories for closing the
gap are how to control the deceivers and how to keep the de-
ceived hermetically sealed off from the knowledge that the de-
ceivers possess.
A fifth strategy is just to protest that it is unfair for individu-
als to arrogate to themselves the privilege to disobey rules that
their community has decided should be enacted and instead to
act on the verdicts of their own first-order practical reason. 31
But if one’s first-order practical reason tells one that abiding by
the rules is unfair or immoral, in what sense is departing from
the rules unfair?
The final strategy, one that might seem promising, is what
Schauer called “rule-sensitive particularism.” 32 The rule-
sensitive particularist acts on his first-order practical reason,

26. See ALEXANDER & SHERWIN, supra note 17, at 77–86.

27. JEFFREY BRAND-BALLARD, LIMITS OF LEGALITY: THE ETHICS OF LAWLESS JUDG-
ING 3–4 (2010).
28. See ALEXANDER & SHERWIN, supra note 17, at 86–91; Larry Alexander & Emi-
ly Sherwin, The Deceptive Nature of Rules, 142 U. PA. L. REV. 1191, 1191–98 (1994).
29. See UTILITARIANISM AND BEYOND 16 (Amaryta Sen & Bernard Williams eds.,
1982).
30. See R.M. HARE, MORAL THINKING: ITS LEVELS, METHODS, AND POINT 44–64
(1981).
31. See Alan Goldman, The Rationality of Complying with Rules: Paradox Resolved,
116 ETHICS 453, 467 (2006).
32. SCHAUER, supra note 16, at 99.
362 Harvard Journal of Law & Public Policy [Vol. 41

but his first-order practical reason takes into account the value
of having rules and the consequent disvalue of undermining
the rules by flouting them, which occurs if one’s flouting the
rules leads others to follow suit. This strategy will not eliminate
the gap. One might flout the rules undetected, or one’s flouting
of the rules may not affect others’ behavior for other reasons.
But it should narrow the gap considerably, or so it might ap-
pear.
The problem is that the rule-sensitive particularist narrows
the gap in the direction of compliance with rules only if most
others are not rule-sensitive particularists but are rule fetishists.
For the value of the rules that goes into the rule-sensitive par-
ticularist’s calculus is highest when others are rule-followers.
As more people become rule-sensitive particularists and are
aware of that fact, less values will be attached to the rules. And
if everyone were a rule-sensitive particularist, the value of the
rules would be zero in their first-order practical reasoning. 33
So here is the upshot. If we equate first-order practical rea-
soning, the reasoning we engage in under standards or when
deciding what rules to enact, with “politics,” and equate rules
with “law,” then while politics may tell us we should have law,
politics seems simultaneously to tell us that we really cannot
have it. Law may be for us like the intention to drink the vile
liquid in Kavka’s Toxin Puzzle: It would be good to have it, but
perhaps we really cannot, unless we deceive ourselves. 34
As I said, I think this gap between rules and first-order prac-
tical reasoning—between law and politics—is the most power-
ful prism through which to view legal phenomena. It can ex-
plain the fact that some judges prefer rules and some prefer
standards—preferences frequently reflected in the opposition
of the majority and the dissenters. It can explain changes in le-
gal doctrines over time. When standards prevail, there is a
movement to translate them into rules. But when rules prevail,
there is a movement to wipe them away in favor of standards.
This is a “grass is always greener” phenomenon because we
want both the virtues of rules and the virtues of standards, and
we cannot have them simultaneously.

33. See Alexander, The Gap, supra note 17, at 699–701.

34. Gregory Kavka, The Toxin Puzzle, 43 ANALYSIS 33, 33–34 (1983).
No. 1] Law and Politics 363

I should add that the gap also explains our opposed reac-
tions to bureaucrats. When they act under vague standards, we
feel like Kafka’s Joseph K.—totally at sea—and want to know
what the rules are. 35 But when they act under rules and make
no exceptions when first-order reasoning favors exceptions,
they become caricatures in our eyes, soulless rule-following
martinets. We want clear rules, except when we do not.
Finally, let me briefly relay the results of my experiment with
judges and the gap. I was on a panel at both the west coast and
the east coast conferences of federal bankruptcy judges. There
were about 150 judges in my panel’s audience at each confer-
ence, and no judges in the audience at the first conference were
in the audience at the second. Our panel gave the audience
three vignettes involving clear bankruptcy rules and fact pat-
terns in which application of those rules would seem terribly
unfair to a party. We asked the judges to consider whether in
those vignettes they would follow the rules or depart from
them and do what appears fair. We precluded all other options,
including novel reinterpretations of the facts, dissembling, re-
signing, and so forth. Interestingly, in both conferences approx-
imately half the judges said they would follow the rules and
half said they would not. Half stood on one side of the gap and
half on the other.
So here is the bottom line. I equate “law” with rules that set-
tle determinately what must be done. 36 And I equate “politics”
with first-order practical reasoning—the reasoning that pro-
duces the rules and the reasoning that standards invite. Politics
leads to law, but politics then conflicts with it. The question for
me is, if law is desirable, as I believe it is, is it actually possible,
and if so, how?

35. FRANZ KAFKA, THE TRIAL 70 (Richard Stokes trans., Modern Voices 2005)
(1925).
36. See generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L.
REV. 1175 (1989).