The Necessary Language of Exceptions: a Response to Frederick Schauer’s “exceptions”

Exceptions to legal rules often represent a step outside the bounds of existing law, specifically, outside the bounds of the rules and principles to which they are exceptions, and their creation is therefore often an exercise of true judicial power—the ability to act unfettered by preexisting legal constraint. Professor Frederick Schauer, in his paper Exceptions, largely ignores this intuition. He insists that exceptions are never more than the minor corrections that inevitably become necessary when we express nuanced legal principles using the often limited array of available linguistic tools, that is, when legal rules as written and applied diverge from the principles that underlie them. Such a sanitized, safe vision of exceptions breeds complacency in the face of potentially illegitimate exercises of power. The work of this paper, then, is to respond to Professor Schauer by showing that there is a real and useful distinction between purely linguistically based exceptions and those that are departures not only from the rule but also from the underlying principle of the rule. I show that both, as a matter of jurisprudential theory, as well as of undeniable empirical example, there are in fact exceptions to legal rules, in both the judicial and legislative contexts, that arise not as vestiges of linguistic limitations but as potentially harmful departures from underlying legal principles.