Precedent, Rules and the Standard Picture

(2016) 41 Australian Journal of Legal Philosophy 81

Deakin Law School Research Paper No. 17-17

39 Pages Posted: 25 May 2017 Last revised: 25 Jan 2018

See all articles by David Tan

David Tan

Deakin University, Geelong, Australia - Deakin Law School

Date Written: May 22, 2017

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

Suggested Citation

Tan, David, Precedent, Rules and the Standard Picture (May 22, 2017). (2016) 41 Australian Journal of Legal Philosophy 81; Deakin Law School Research Paper No. 17-17. Available at SSRN: https://ssrn.com/abstract=2971861

David Tan (Contact Author)

Deakin University, Geelong, Australia - Deakin Law School ( email )

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