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3 - Of rules in general

Published online by Cambridge University Press:  05 June 2012

William Twining
Affiliation:
University of London
David Miers
Affiliation:
Cardiff University
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Summary

In this chapter we introduce some of the more important general considerations relevant to understanding the nature of rules. After examining the concept of ‘rule’ and its relation to such notions as principles, policies and values, we consider briefly some standard distinctions concerning the form and structure of rules, and the difference between general exceptions and exemptions in particular cases. We then deal in turn with the variety of rules and the relations between rules within a single aggregation or ‘system’, between different systems of rules, and between systems of rules and external factors. Next we consider in an elementary way some general theories about the functions of rules, rules as techniques of social management, and differences between instrumentalist, formalist and other perspectives on rules, with particular reference to the notion of rules as instruments of power. The purpose of this chapter, then, is to provide a fairly simple theoretical basis from which to proceed to explore what is involved in the interpretation of rules.

What is a rule?

In ordinary talk the word ‘rule’ has many usages. In the present context we are not concerned with ‘rule’ in the sense of reign, e.g. the rule of Queen Victoria, or in the sense of a habit or empirical generality, as in ‘as a rule he catches the 9.55 train to London’, or in the sense of a calculating instrument, such as a slide rule.

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Publisher: Cambridge University Press
Print publication year: 2010

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References

The Social Working of Legal Rules’, Journal of Legal Pluralism, 48 (2003), 1
Baxter, H., ‘Autopoiesis and the “Relative Autonomy” of Law’, Cardozo Law Review 19 (1998), 1987.Google Scholar
Summers, R., ‘The Technique Element in Law’, California Law Review, 59 (1971), 733.CrossRefGoogle Scholar
Vermuelle, A., ‘Instrumentalisms’ (Review of Tamanaha, Law as a Means to an End), Harvard Law Review 120 (2007) 2113.Google Scholar
Riles, A., ‘Anthropology, Human Rights and Legal Knowledge: Culture in the Iron Cage’, Finnish Yearbook of International Law 15 (2004), 9–38).Google Scholar
John, Griffiths, e.g. ‘Is Law Important?’, New York University Law Review 54 (1978), 339Google Scholar

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