Precedent, Rules and the Standard Picture

Abstract

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