About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

14 Harv. J. L. & Pub. Pol'y 645 (1991)
Rules and the Rule of Law

handle is hein.journals/hjlpp14 and id is 661 raw text is: RULES AND THE RULE OF LAW FREDERICK SCHAUER* What is the connection between rules and law? My goal here is to address this question, and in doing so I will take up four particular questions that the general one subsumes. First, must law be an affair of rules? Does something about the nature of law necessitate that legal decisionmaking involve the applica- ion of preexisting rules? My second question is the mirror im- age of the first. Can law be an affair of rules? Is rule-based decisionmaking possible, and, if so, is it consistent with the idea of law? Third, if law need not but can be based primarily on the application of rules, then, descriptively, is it so? That is, are the legal systems with which we are most familiar usefully ex- plained by focusing on rules? Finally, if law need not but can be based largely on rules, then, normatively, should it be? Ought legal decisionmakers to be constrained by rules, and, if so, when, and why? Many contemporary debates in legal theory address one or more of these interrelated questions. The disputes about legal positivism as an account of law concern the place of a limited set of rules in legal decisionmaking. Traditional and modern versions of legal realism attack the view that legal decisionmak- ing involves the simple application of preexisting rules. Other theorists make the call to context, urging legal decisionmakers to consider more features of any event than is possible through the application of necessarily acontextual rules. Similarly, some see law as essentially rhetorical, focusing on the different argu- ments that prevail in cases rather than on the possibility that fixed rules predetermine the resolution of those cases. Most re- cently, American pragmatism' and Aristotelian practical rea- son2 have inspired theorists to urge a decisionmaking mode * Frank Stanton Professor of the First Amendment, Kennedy School of Govern- ment, Harvard University. A.B., 1967, M.B.A., 1968, Dartmouth College; J.D., 1972, Harvard University. 1. See, e.g., R. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990); Symposium on the Renaissance of Pragmatism in American Legal Thought, 63 S. CAL. L. REv. 1569 (1990). 2. See, e.g., Burton, Law as Practical Reason, 62 S. CAL. L. REV. 747 (1989); Farber & Frickey, Practical Reason and the First Amendment, 34 UCLA L. REv. 1615 (1987); Solum, The Virtues and Vices of a judge: An Aristotelian Guide to Judicial Selection, 61 S. CAL. L. REv. 1735 (1988).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most