In Legal Rules in Practice (Baudouin Dupret, Julie Colemans & Max Travers Eds.) (London: Routledge, 2021 Forthcoming)
18 Pages Posted: 26 Oct 2020 Last revised: 11 Nov 2020
Date Written: October 19, 2020
The distinction between rules and standards is familiar, but that is not the only way in which the force of a rule can be measured. Of equal and perhaps greater importance is the strength that a rule has against the potentially competing consideration of the background justification for the rule, and against the potentially competing considerations of justice, equity, practicality, efficiency, and the like. This degree of strength against such competing considerations is what I label “ruleness,” and it is not so much an attribute of individual rules as it is an attribute that rules in general are given in a particular environment by those who apply, enforce, and interpret the rules. This paper, prepared for a volume on the sociological and anthropological aspects of rules, develops this idea of ruleness, and suggests that the degree of ruleness in a particular society or legal (or non-legal) environment can be a fruitful avenue for systematic and illuminating empirical research.
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