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This is a question about legislation, including constitutive rules and administrative law

To give some context, I am interested in legal reasoning (as in a logic of law), but I am not a legal-expert. For research, I was hoping to look at rules which govern the change of other rules. Specifically, rules which state what constitutes a rule change (presumably for different types of rules).

To give an example, I can cross off a rule in a constitution, but due to not being empowered that presumably would not mean I have changed any rules. It would not count-as a rule change. What I would like to know is:

1) What sub-types of these rule types are there? For example, some would state when a retroactive rule change is made - what other types are there?

2) What kind of absurd outcomes can come as a result of rule changes, due to the way rule changes are governed? For example, I can imagine that retroactively annulling a rule that states I can retroactively annul a rule is paradoxical, are there other similar absurdities that can occur?

I am ideally looking for some legal theory on this and if that isn't available then some examples covering different possibilities, but I don't know where to look. Thanks in advance!

  • I can't discern a clear question from what you have written. In fact I can't even tell whether you are referring to administrative rules and regulations or laws. I would vote to put this question on hold as unclear until you can clarify. – feetwet Nov 11 '15 at 18:17
  • I've edited it, you mentioned administrative rules - there is administrative law which perhaps contains the kinds of rules I'm looking for so I've removed part of the question. The rest is as before, I'm not sure what is unclear. I'm looking for a rule classification and problems these kinds of rules can cause. – Dr. Thomas C. King Nov 11 '15 at 19:31
  • @feetwet Me too. I'm thinking are you curious about what might happen if there was a amendment to the constitution which banned amending the constitution? are you asking a question about that kind of situation? – Mr. A Nov 11 '15 at 19:33
  • Not what might happen, I am asking what kinds of problems/absurdities, similar to the one I and you mentioned there are. What are the conditions under which they exist. What might happen would help a bit but isn't so important. I am also asking if there is a classification of these types of rules. – Dr. Thomas C. King Nov 11 '15 at 19:35
  • So you're asking whether there are "meta-rules" or "meta-laws" that govern (a) what kinds of changes can be made to existing rules or laws, and (b) how those changes can be effected? – feetwet Nov 11 '15 at 19:45
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Why do you want to know?

I think that the reason this question seems so obscure is because it does not involve sufficient context and specificity. It can't be answered until one knows the reason that it matters to know if a rule is new or not. In a particular context, these questions usually have obvious and clear answers. The murkiness arises only when one tries to overgeneralize.

The life of law is not reason, it is experience. In general, it is almost never fruitful to try to apply legal principles of any kind to their logical conclusion without grounding that logic in fact specific and context specific precedents and applications. That approach to legal reasoning is a classic rookie mistake that gets a lot of young associate attorneys doing legal research into trouble by overstating the confidence that they should have in their conclusions when there is no case right on point addressing a situation.

For example, if a federal government agency publishes something in the federal register that does not exactly restate an existing regulation, then it is a rule change, in the narrow sense that is changes an existing published narrowly defined Code of Federal Regulations rule. The process by which one does so derives from the Administrative Procedures Act and other authorizing legislation passed by Congress and also custom and case law interpreting these, so it isn't self-referential.

A completely different context in which the question of whether there is a "new rule" of law is when a court according to the principles of stare decisis makes a ruling interpreting the constitution in a manner different from or expanding upon previously rulings interpreting the constitution in a similar circumstance. In this context, this matters because a "new rule" of constitutional law is generally given only prospective effect, while an interpretation of an existing rule of law that merely expands upon existing precedents in a foreseeable way has retroactive effect.

In this situation, as in any case in which one tries to determine the best definition to apply under the law, the best approach is to look for a definition that produces just results given the consequences of a particular definition v. another particular definition. In that context, the determination of whether a rule is a "new rule" should depend upon foreseeability and the amount of reliance that people put on the old rule as opposed to the new rule being in force.

There is no good reason to have transsubstantive legal meta-rules that apply to both of these situations. The former mechanistic rule makes sense in its context and makes the status quo clear and the events that constitute a change in the rule clear, while the latter consequence oriented definition makes sense in the completely different context where it is used.

Surely, there are other contexts in which the question of what constitutes a "new rule" could have different consequences still. For example, to determine what constitutes a new v. old rule of U.S. Senate procedure, or to determine which statute is newer or older for purposes of determining which statute of two that conflict should be given effect when there was a cosmetic recodification of the section numbers of one of the titles but not the other without changing the substantive meaning of the recodified statute.

The determination should generally be made on a case by case basis as there is no important purpose served by having a uniform metarule to answer these questions.

If you are getting paradoxes trying to apply your legal theory, you are probably doing it wrong.

For what it is worth, I have a dim opinion of Hart as someone who uses lots of words to say nothing of consequence or use, and I am not familiar with Biagoli or Suber. In general, legal theorists are not terribly influential in how the law is applied and interpreted in practice, although, of course, there are always exceptions.

  • Thank you for your carefully considered answer. I was asking from a jurist's point of view, I am not a jurist but I was working on formalising institutions. My main motivation was simply to find some rule change problems and the classes they belong to - it didn't really matter if they could be resolved in theory and/or practice. My aim was to define a semantics for the legality of rule change such that paradoxes do not occur - simply to see how that would look. You raise some interesting, orthogonal, points on the practical side and I will look into that with interest, thanks! – Dr. Thomas C. King Feb 16 '17 at 11:03
  • I would also like to respond to one other point (purely for clarity) "it is almost never fruitful to try to apply legal principles of any kind to their logical conclusion without grounding that logic in fact specific and context specific precedents and applications." - I agree. The idea is to give a general logic, but for it to be applied to specific contexts. So whilst there is a semantics defined at a meta-level, what legal outcomes are true should depend on the object-level law, interpretations, arguments, etcetera.. Finding good cases that invalidate the semantics is the idea. – Dr. Thomas C. King Feb 16 '17 at 11:27
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I didn't receive an answer on this question, so I did some research and wrote a formal paper on the topic.

The general concept of rules governing rule changes are secondary rules, as conceived by the jurist Hart in his influential "Concept of Law".

In general, there are many possible paradoxes that can occur, such as due to rule self amendment. Peter Suber probably provided the most extensive discussion on this topic https://dash.harvard.edu/bitstream/handle/1/23674879/Suber%20-%20Paradox%20of%20Self-Amendment%202.pdf?sequence=1 or at least it can serve as a starting point.

Other relevant works are by Searle ('Construction of Social Reality') where Searle argues that a social reality is built by rules that ascribe institutional facts, now of the canonical form "A counts-as B in context C"), meaning that the institutional fact B can only exist because it is a special meaning ascribed to A.

Biagoli later argued that those rules that Hart, in his Concept of Law, called secondary-rules (which act to introduce and modify rules) are in fact constitutive rules since they ascribe the social act of changing a rule to physical or institutional actions (e.g., physically rewriting the law book, or there being a majority vote on the rule change, etc.). Biagoli's paper can be found at https://www.researchgate.net/profile/Carlo_Biagioli/publication/244518963_Towards_a_legal_rules_functional_micro-ontology/links/00b4953b4eb6dc8809000000.pdf

I also wrote a formal paper on the topic, although I am not a jurist so I believe Hart, Biagoli and Suber provide the most extensive work. In my formal paper, "When Does a Rule Change Count-as a Legal Rule Change?" I argued, using some mathematical precision, that whether there is a paradox or not, does not just depend on whether a rule directly or indirectly amends itself, but also the temporal aspects. A rule can, for example, amend itself if the amendment will occur in the future. Potentially, amending a rule may cause other amendments to unravel and further amendments to occur.

Another issue is rule amendments that are conditional on hypothetical change effects. In EU law retroactive modifications are possible (if a nation makes it so) under the condition that they are not retroactively criminalising. What this means, is that if a rule would, hypothetically, criminalise someone who was previously innocent in the past (where by 'previously' we are referring to a past version of the law book), then the rule change does not take place.

In general, I argued that the the logic of rule change is skeptical. What this means, informally, is that the condition for a rule change to take place is on a social context that includes both the current effects of the law and the future effects of the law. Rule changes that are `illegal' do not occur, because we are really talking about possibility here. My paper that makes these arguments can be found here, https://www.researchgate.net/profile/Thomas_King13/publication/304114547_When_Do_Rule_Changes_Count-as_Legal_Rule_Changes/links/576a80d608ae787b7e5ca9dc.pdf

But again, the most important sources are Hart, Biagoli and Suber in my view.

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