Chapter 5: Following the law as following a rule
This final chapter brings together the two basic modes in which law appears in society: as an institution of authority, and as an object of knowledge. Its topic is paradigmatically linked to what judges do: set the law on the basis of their knowledge of the law. To reach a decision in a certain case, they take guidance from law as a set of rules. Of course these rules do not allow them to infer decisions by applying logic; nor are they simple algorithms that generate decisions by comparing cases to a standard. The process that takes place with regard to legal rules is commonly called ‘interpretation’. Received views on legal interpretation often point to ‘linguistic meaning’, ‘legislative intention’, ‘socio-political function’, ‘doctrinal coherence’, and their ilk, to detail the parameters that the judiciary is supposed to estimate and ‘weigh’ with regard to a specific case. These theories are neither wrong, nor should their practical value be ignored. But I think there is scope for a deeper account of how judges – or, for that matter, citizens, governors and legislators – deal with legal rules. Section 1 distinguishes between various modes of interpreting legal rules, singling out two in particular: an operative and reflective mode. I argue that the former takes priority over the latter, in law as in many other contexts. In section 2, I offer two arguments to the effect that it is a riddle how we are able to follow a legal rule in the operative mode. The first one develops from law.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.