Comment: Legal Theory and the Role of Rules
44 Pages Posted: 5 Jul 2011
Date Written: 1991
Abstract
Before I consider Frederick's Schauer's 'Rules and the Role of Law' in detail, let me emphasize the way in which I agree with him. I have sympathy with Schauer's theoretical agenda and agree with most of his theses. I believe that it is both important and true to say that rules can bind and that they often do, in law and in life; that not all decisionmaking, and not even all legal decisionmaking, is rule-based, but most of it is; and that this rule-basedness cannot be dismissed, simply and in a sweeping way, as unjustified. I further agree with Schauer that an important function of rules is to limit powers and to enforce conceptions of a desirable division of responsibility and acceptable answers to who should decide an issue, not only how an issue should be decided. Finally, I think that it is important to stress that we are discussing not only the moral responsibilities of judges making individual decisions, but also those of the people deciding about desirable decisionmaking environments. At times, these responsibilities may pull in different directions, justifying a requirement of obedience to rules even when the requirement seems unjustified.
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