The Rule of Rules

Morality, Rules, and the Dilemmas of Law

The Rule of Rules

Book Pages: 288 Illustrations: Published: August 2001

Subjects
Law > Legal Theory, Theory and Philosophy

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.

Praise

“[A] provocative exploration of how rules can perform a moral function . . . . [A] useful model for creative and careful legal theory . . . [and an] excellent and clear discussion of major debates in jurisprudence. . . .” — Judith Lynn Failer , Law and Politics Book Review

“[R]ewarding for those eager to engage with some of the core debates in legal theory. . . . [T]he book is at its best when describing the way rules seek to rescue us from a world in which there is moral plurality and the fact that they cannot provide moral certainty. This means, Alexander and Sherwin note, that it may be right to issue rules and yet be wrong to follow them. This is an intriguing and persuasive argument. . . . This is a valuable addition to the literature, a solid and, at times, sparkling example of rigorous thinking about important problems. Highly recommended . . . .” — A. D. Sarat, Choice

"[The Rule of Rules] is well written, the arguments are clear, good examples are used to illustrate or explain points, and the organization of topics is logical. . . . The book makes a valuable contribution to the ongoing and sometimes stale debate between positivism and natural law by presenting positivism as a means and natural law as an end. . . ."



— Timothy O. Lenz , Perspectives on Political Science

"Alexander and Sherwin in The Rule of Rules describe the rules-morality tension and the consequences for Law and the incidents of legal analysis and practice that flow from it. They reveal the fundamental incongruities in terms that are both accessible and sophisticated. They fix the place of their critique in the jurisprudential firmament and reveal the limits of others' logic. Conscientious readers will generally follow with nodding approval. To appreciate the contribution that Alexander and Sherwin have made to the literature, though, we will need to appreciate what their exposition and analysis tells us about the rules-morality relation. Understood as a matter of communication, that is a communication between morality and the rules that will be an elaboration of that morality, the impossibility of Law is ultimately a failure of communication or at least our failure to understand the incidents of that communication in terms that would inform our better understanding of what Law can be. So the next step is ours: Alexander and Sherwin have taken us to the precipice." — Peter A Alces , Michigan Law Review

“Accessible to the non-specialist, the arguments found in The Rule of Rules are clearly made and well-illustrated with concrete examples. The authors address a large number of topics and take up controversial positions on most. This will make an important contribution to ongoing jurisprudential debates.” — Mark Tushnet, Georgetown University Law Center

“This book not only substantially advances our understanding of the nature of rules themselves, but is by some margin the best treatment there is of the relationship between rules and law. In an era in which context, flexibility, and discretion are often uncritically celebrated, this book throws down the gauntlet for a rule-based understanding of law. No one who is interested in the nature of legal reasoning and legal decision-making can afford to ignore this book, and no one who is skeptical about the importance of rules to law can avoid the challenges that Alexander and Sherwin present.” — Frederick Schauer, Harvard University

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Author/Editor Bios Back to Top

Larry Alexander is Warren Distinguished Professor of Law at the University of San Diego.

Emily Sherwin is Professor of Law at the University of San Diego.

Table of Contents Back to Top
Acknowledgments

Introduction

Part I. The Circumstances of Law

1. Disagreement, Uncertainty, and Authoritative Settlement

2. Settlement Requisites and the Nature of Authoritative Rules

3. Hierarchies of Rules

Part II. Acting Under Rules

4. The Problem of Rules

5. Interpretation of Rules

Part III. Issues of Legal Reasoning

6. Reasoning by Analogy

7. Reasoning in Light of Precedent

8. Reasoning from Legal Principles

Part IV. The Settlement Function and Jurisprudential Debates

9. Legal Positivism and Natural Law

10. Lex, Rules, and Some Miscellaneous Problems of Jurisprudence

Notes

Index
Sales/Territorial Rights: World

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Additional InformationBack to Top
Cloth ISBN: 978-0-8223-2736-3
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