Rule of Rules

Alexander Larry Alexander, Sherwin Emily Sherwin

Description

Rules perform a moral function by restating moral principles in concrete terms, so as to reduce the uncertainty, error, and controversy that result when individuals follow their own unconstrained moral judgment. Although reason dictates that we must follow rules to avoid destructive error and controversy, rules-and hence laws-are imperfect, and reason also dictates that we ought not follow them when we believe they produce the wrong result in a particular case. In The Rule of Rules Larry Alexander and Emily Sherwin examine this dilemma.Once the importance of this moral and practical conflict is acknowledged, the authors argue, authoritative rules become the central problems of jurisprudence. The inevitable gap between rules and background morality cannot be bridged, they claim, although many contemporary jurisprudential schools of thought are misguided attempts to do so. Alexander and Sherwin work through this dilemma, which lies at the heart of such ongoing jurisprudential controversies as how judges should reason in deciding cases, what effect should be given to legal precedent, and what status, if any, should be accorded to "legal principles." In the end, their rigorous discussion sheds light on such topics as the nature of interpretation, the ancient dispute among legal theorists over natural law versus positivism, the obligation to obey law, constitutionalism, and the relation between law and coercion.Those interested in jurisprudence, legal theory, and political philosophy will benefit from the edifying discussion in The Rule of Rules.

Sujets

• Philosophie et théologie

Informations

• Publié par: Duke University Press
• Date de parution: 06 août 2001
• Nombre de lectures: 0
• EAN13: 9780822380023
• Langue: English

Extrait

THE RULE OF RULES

Larry Alexander and Emily Sherwin THE RULE OF RULES

                  

                  

Morality, Rules, and the Dilemmas of Law

©  Duke University Press All rights reserved Printed in the United States of America on acid-free paper  Designed by Rebecca Giménez Typeset in Monotype Garamond by Tseng Information Systems Library of Congress Cataloging- in-Publication Data appear on the last printed page of this book.

CONTENTS

Acknowledgments vii Introduction     .                  . Disagreement, Uncertainty, and Authoritative Settlement  . Settlement Requisites and the Nature of Authoritative Rules  . Hierarchies of Rules      .                . The Problem of Rules  . Interpretation of Rules 

     .                       . Reasoning by Analogy  . Reasoning in Light of Precedent  . Reasoning from Legal Principles 

   .                                             . Legal Positivism and Natural Law  . Lex, Rules, and Some Miscellaneous Problems of Jurisprudence  Notes  Index 

ACKNOWLEDGMENTS

This book owes far too much to far too many people for us to ac- knowledge and thank them adequately. Several chapters benefited from having been presented in at least nascent form at workshops and colloquia. Parts of chapters , , and  were presented at the Sym- posium on Formalism Revisited held at the University of Chicago Law School. Chapter  was presented in some form at the Confer- ence on Legal Reasoning and the Work of Frederick Schauer held at Quinnipiac College of Law, at the Columbia University Legal Theory Workshop, at the Cornell Law School Faculty Workshop, and at the fourth annual Analytic Legal Philosophy Conference in Philadelphia. Chapter  was presented at the Conference on Legal Interpretation, Judicial Power, and Democracy in Melbourne, Australia. Chapter  was presented at the Faculty Colloquium at the University of Pennsyl- vania Law School, and at the Conference on Law and Logic at Notre Dame Law School. And chapter  was presented at the University of California at Berkeley Legal Theory Workshop. In addition to the helpful comments and criticisms we received from those attending these presentations, we received ongoing coun- sel from several people whom we wish to thank by name: our col- leagues at the University of San Diego Heidi Hurd, Michael Moore, and Maimon Schwarzschild, and our colleagues in the profession Kevin Clermont, Kent Greenawalt, Leo Katz, Ken Kress (who co- authored a predecessor to chapter ), and Fred Schauer. And we re- ceived beneficial advice and encouragement from numerous other

colleagues at U.S.D. and from our dean, Dan Rodriguez. Finally, Roanne Shamsky and Pat Gillis contributed their excellent steno- graphic assistance. We dedicate this book to Elaine Alexander, Larry’s wife, and to Thomas and Lillian Sherwin, Emily’s parents.

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Acknowledgments

INTRODUCTION

In this book we hope to throw some light on many of the jurispru- dential debates over the nature of law, legal systems, and legal institu- tions. Our approach to these matters will not be a direct one, however. We shall offer neither a semantic account of law nor an analysis of the ‘‘concept’’ of law. Rather, the prism through which we wish to refract standard jurisprudential issues is that of authoritative posited rules— rules that are humanly created to settle controversies and questions about what one ought to do. Our jurisprudential strategy is simple. The key to understanding what is at stake in various jurisprudential controversies is to under- stand the reasons for authoritative rules, the form those rules must take to serve their purposes, and the moral and practical dilemmas rules create. An understanding of rules will show where legal posi- tivism is correct and also where natural law theory is correct. It will clarify the nature and dilemmas of constitutionalism, the debates over legal interpretation, and the paradox of practical authority. It will provide the means for evaluating claims about the nature of legal reasoning—claims about legal principles, analogical reasoning, and precedent-following—as well as claims about the determinacy and objectivity of legal reasoning. And it will expose the limitations of any answers to questions about how to individuate and identify par- ticular legal systems and about whether a legal system is continuous with or represents a radical break from a prior legal system. The plan of this book is as follows. Part I—‘‘The Circumstances of Law’’—consists of the first three chapters, which set forth the pre-