Rules, Tricks and Emancipation
Forthcoming in Porosités du Droit/Law's Porosities (Vivian Curran, ed.)
23 Pages Posted: 30 Oct 2019
Date Written: August 20, 2019
Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside for their use in law. And theories of legal interpretation often discuss when and how decision makers should reject or adjust these sorts of anomalous results. I want to take a different approach. Think of cases in which following a legal rule leads to absurd or contradictory results as a kind of trick played by the law on the lawmakers, or the culmination of a trick that lawmakers play on themselves. Such tricks are not a shortcoming or perversion of law. Rather they are crucial to the moral, political system we call “rule of law.” They are the instantiation of legal rules’ capacity to constrain the rule makers – something that we expect and in fact demand from a society in which law subjects the lawmakers. Moreover, this tricky capacity is the source of legal rules’ creativity, their ability to contribute to social change, rather than always preserve the status quo. In particular, legal tricks sometimes produce emancipatory results.
Keywords: law & culture, rule of law, rules, jurisprudence, legal philosophy, legal reasoning, civil rights, statutory interpretation, rationality, legal history, Blackstone, judicial decisionmaking, law and humanities, animal rights, legal personhood, creativity, legal reform, legal culture
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