Beyond Discretionary Justice

Abstract

In his little book The Morality of Law, Lon Fuller relates an allegory about a King Rex who sets out to reform the legal system of his kingdom.Upon assuming the throne, King Rex repeals all existing law and, lacking the confidence to write a new code, begins the process of developing new rules on a case-by-case basis.In this way under the stimulus of a variety of cases he hoped that his latent powers of generalization might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code.Unfortunately the defects in his education were more deep-seated than he had supposed.The venture failed completely.After he had handed down liteally hundreds of decisions neither he nor his subjects could detect in those decisions any pattern whatsoever.Such tentatives toward generalization as were to be found in his opinions only compounded the confusion, for they gave false leads to his subjects and threw his own meager powers of judgment off balance in the decision of later cases. 1In the allegory, King Rex eventually dies, "old before his time and deeply disillusioned with his subjects." 2In the real world, the King is still with us, enthroned in the legal department of a federal regulatory agency.But although the King may feel secure for the present, his subjects are getting restless.Consumer groups are no longer so certain that