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  1. Legal Realism and 'Working' Rules.David Frydrych - forthcoming - Canadian Journal of Law and Jurisprudence.
    The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.
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  2. Realism and Positivism.David Frydrych - forthcoming - Jurisprudence.
    Several scholars advance the ‘LR-LP thesis’: the claim that American Legal Realism presupposes Legal Positivism. Brian Leiter and Frederick Schauer, prominent scholars of Realism, delimit that thesis to a Razian version of Exclusive Legal Positivism (‘ELP’). This article nevertheless argues that Leiter and Schauer’s respective accounts of Legal Realism are difficult to square with Razian ELP. Indeed, the Realist hypotheses about alternative drivers of official decision, concerning ‘working’ rules, ‘real’ rules, and ‘situation-types’, if correct, actually threaten Razian ELP. -/- Problems (...)
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  3. Precedent and the Rule of Law.Sebastian Lewis - 2021 - Oxford Journal of Legal Studies 41 (4):873-898.
    Courts may reason using precedents in various ways, but not all of them satisfy the rule of law. This article provides two ways that are compatible with this ideal and one which is not. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. Two claims are defended. First, courts always have a reason to decide precedent-governed disputes by following precedent. This reason is a minimum requirement of (...)
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  4. Opacity of Character: Virtue Ethics and the Legal Admissibility of Character Evidence.Jacob Smith & Georgi Gardiner - 2021 - Philosophical Issues 31 (1):334-354.
    Many jurisdictions prohibit or severely restrict the use of evidence about a defendant’s character to prove legal culpability. Situationists, who argue that conduct is largely determined by situational features rather than by character, can easily defend this prohibition. According to situationism, character evidence is misleading or paltry. -/- Proscriptions on character evidence seem harder to justify, however, on virtue ethical accounts. It appears that excluding character evidence either denies the centrality of character for explaining conduct—the situationist position—or omits probative evidence. (...)
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  5. Interpretative Importance of Legal Principles for the Understanding of Legal Texts.Marijan Pavčnik - 2015 - Archiv für Rechts- Und Sozialphilosophie 101 (1):52-59.
    Law is a system of legal rules and legal principles. The distinction between them is a relative one. Always such definite major and minor premises are to be formed that the case can be subsumed under the rule and a conclusion, which includes the decision, can be drawn. This applies to legal principles that are operationalised by legal rules as well as to statutory forms of legal rules, which are often open as to their meaning and/or contain definitions that comprise (...)
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  6. Modeling Legal Rules.Richard Holton - 2011 - In Andrei Marmor & Scott Soames (eds.), Philosophical Foundations of Language in the Law. Oxford University Press.
    Building on earlier work, this paper develops a model of legal rules that admit of exceptions but are nonetheless governed by classical logic. The account is defended against alternative accounts that construe legal rules as generics, or as default rules.
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  7. Between Authority and Interpretation: On the Theory of Law and Practical Reason.Joseph Raz (ed.) - 2009 - Oxford University Press.
    Can there be a theory of law? -- Two views of the nature of the theory of law : a partial comparison -- On the nature of law -- The problem of authority : revisiting the service conception -- About morality and the nature of law -- Incorporation by law -- Reasoning with rules -- Why interpret? -- Interpretation without retrieval -- Intention in interpretation -- Interpretation : pluralism and innovation -- On the authority and interpretation of constitutions : some (...)
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  8. Do Precedents Create Rules?Grant Lamond - 2005 - Legal Theory 11 (1):1-26.
    This article argues that legal precedents do not create rules, but rather create a special type of reason in favour of a decision in later cases. Precedents are often argued to be analogous to statutes in their law-creating function, but the common law practice of distinguishing is difficult to reconcile with orthodox accounts of the function of rules. Instead, a precedent amounts to a decision on the balance of reasons in the case before the precedent court, and later courts are (...)
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  9. Global Concepts, Local Rules, Practices of Adjudication and Ronald Dworkin’s Law as Integrity.Alan R. Madry - 2004 - Law and Philosophy 24 (3):211-238.
  10. The Rule of Rules: Morality, Rules, and the Dilemmas of Law.Larry Alexander (ed.) - 2001 - Duke University Press.
    In "The Rule of Rules" Larry Alexander and Emily Sherwin examine this dilemma.
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  11. Practical Rules: When We Need Them and When We Don’T.Alan H. Goldman (ed.) - 2001 - Cambridge University Press.
    Rules proliferate; some are kept with a bureaucratic stringency bordering on the absurd, while others are manipulated and ignored in ways that injure our sense of justice. Under what conditions should we make exceptions to rules, and when should they be followed despite particular circumstances? The two dominant models in the literature on rules are the particularist account and that which sees the application of rules as normative. Taking a position that falls between these two extremes, Alan Goldman provides a (...)
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  12. Rules and Reasoning: Essays in Honour of Fred Schauer.Frederick F. Schauer & Linda Meyer (eds.) - 1999 - Hart.
    The essays in this volume are all concerned with the arguments about law as a system of rule-based decision-making,particularly the ideas advanced by legal philosopher Frederick Schauer. Schauer's work has not only helped revive interest in legal formalism but has also helped relocate arguments about the relationship between posited rules and morality. The contributors to this volume, themselves distinguished theorists, have concentrated on three aspects of Schauer's work: the nature of jurisprudential description; his theory of presumptive positivism; and the application (...)
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  13. Rule Following, Rule Scepticism and Indeterminacy in Law: A Conventional Account.Peter Drahos & Stephen Parker - 1992 - Ratio Juris 5 (1):109-119.
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  14. Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life.Frederick Schauer - 1991 - Oxford University Press.
    Rules are a central component of such diverse enterprises as law, morality, language, games, religion, etiquette, and family governance, but there is often confusion about what a rule is, and what rules do. Offering a comprehensive philosophical analysis of these questions, this book challenges much of the existing legal, jurisprudential, and philosophical literature, by seeing a significant role for rules, an equally significant role for their stricter operation, and making the case for rules as devices for the allocation of power (...)
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  15. Practical Reason and Norms, 2nd Edition.Joseph Raz - 1990 - Princeton University Press.
    Practical Reason and Norms focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act (...)
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  16. Principles, Values, and Rules in Legal Decision-Making and the Dimensions of Legal Rationality.Jerzy Wróblewski - 1990 - Ratio Juris 3 (s1):100-117.
  17. Are There Legal Rules?Joseph W. Bingham - 1966 - In Martin P. Golding (ed.), The Nature of Law. New York: Random House.
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  18. Concerning the Defeasibility of Legal Rules.Leonard G. Boonin - 1966 - Philosophy and Phenomenological Research 26 (3):371-378.
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  19. Reasoning with Rules.Joseph Raz - manuscript
    What is special about legal reasoning? In what way is it distinctive? How does it differ from reasoning in medicine, or engineering, physics, or everyday life? The answers range from the very ambitious to the modest. The ambitious claim that there is a special and distinctive legal logic, or legal ways of reasoning, modes of reasoning which set the law apart from all other disciplines. Opposing them are the modest, who claim that there is nothing special to legal reasoning, that (...)
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