Legal Thought and Philosophy

Legal Thought and Philosophy

What Legal Scholarship is About

Bert van Roermund

Legal Thought and Philosophy clarifies background questions in legal research projects, such as the relationship between law and justice, law and politics, law and knowledge, facts and norms, normativity and validity, constituent and constitutional power, and rule and context. It provides advanced students in law and philosophy with an account of legal thinking that combines analytical and phenomenological insights.

Chapter 5: Following the law as following a rule

Bert van Roermund

Subjects: law - academic, legal philosophy, legal theory, research methods in law, research methods, research methods in law

Extract

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.

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