The Rule of Rules: Morality, Rules, and the Dilemmas of Law

The Rule of Rules: Morality, Rules, and the Dilemmas of Law

by Larry Alexander, Emily Sherwin, Emily Sherwin
     
 

ISBN-10: 0822327368

ISBN-13: 9780822327363

Pub. Date: 08/06/2001

Publisher: Duke University Press Books

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

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Overview

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.

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Product Details

ISBN-13:
9780822327363
Publisher:
Duke University Press Books
Publication date:
08/06/2001
Edition description:
New Edition
Pages:
288
Product dimensions:
5.90(w) x 9.20(h) x 1.10(d)

Table of Contents

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

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