Scott Landers

This dissertation clarifies the nature of rules and the "Model of Rules" in jurisprudence. The Model contends that a legal system is primarily a structure of rules, and adjudication a process of ascertaining facts and applying rules. Although widely accepted outside the legal profession, this simple model is seen by many legal theorists and practitioners as naive and misleading. Opponents contend that the Model masks the processes through which individuals are politically coerced, by conferring upon judicial results a spurious objectivity and legitimacy. ;Part I examines modern formal analyses of rules. Such analyses prove to share many shortcomings of older command-sanction legal models, by conceiving of rules as linguistic entities and as expressions, in particular, of a human will. ;Part II examines H. L. A. Hart's critique of command-sanction legal models, construed as a special case of the type of critique offered in Part I. Hart's distinctions between internal and external perspectives , and between primary and secondary rules, are clarified to show how they improve our understanding of the nature of rules. It is argued that Hart's initial characterization of primary rules of takes us far toward emancipation from a will-expressive misconception of rules, even though Hart has not fully emancipated himself from such a conception. ;Part III begins by discussing Legal Realist critiques of rule-centered jurisprudence. In light of Hart's general conception of law and legal theory, Realist critiques are seen to depend on a misunderstanding of the nature of legal theory, which should be understood largely as clarifying a conceptual framework within which to better understand law. When such a framework is thought of not as a structure of a priori categories, but as a product of social life, it becomes possible to undermine the rule-sceptical arguments characteristic of Legal Realism and its contemporary derivatives. In undermining rule scepticism and sketching a view of how legal reasoning may fruitfully be re-conceived, the final chapters rely on conclusions drawn earlier about how rules function in shaping human relations, especially below appellate court levels, and on considerations found in Wittgenstein's work and hermeneutic social theory