Precedent, Rules and the Standard Picture
(2016) 41 Australian Journal of Legal Philosophy 81
39 Pages Posted: 25 May 2017 Last revised: 25 Jan 2018
Date Written: May 22, 2017
In 'The Standard Picture and its Discontents', Mark Greenberg remarks that the typical way that legal theorists think about legal obligations does not sit well with the way the common law works. I argue that Alexander's and Sherwin’s Rule Model of precedent can deal with all the problems that Greenberg accuses the Standard Picture of having. Nonetheless, I further argue that combining the Standard Picture and the Rule Model ultimately leads to another problem: the inability of the Standard Picture – Rule Model to separate rule from dicta.
Keywords: General Jurisprudence, Precedent, Case Law, Mark Greenberg, Standard Picture, Larry Alexander, Emily Sherwin, Rule Model
JEL Classification: K00, K10
Suggested Citation: Suggested Citation