What Legal Scholarship is About
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.
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