Legal Realism and 'Working' Rules

Canadian Journal of Law and Jurisprudence

Monash University Faculty of Law Legal Studies Research Paper

61 Pages Posted: 17 Jun 2022

See all articles by David Frydrych

David Frydrych

Monash University - Faculty of Law

Date Written: 2022

Abstract

The American Legal Realists offered several hypotheses about alternative drivers of official decision-making (i.e., considerations other than the rules on the books). This article identifies a tension between two of those hypotheses: the ‘extra-legal’ factors and ‘working’ rules. This tension gets exacerbated in Frederick Schauer’s account of Legal Realism, one which places his Dislocated Determinacy thesis—about working rules constituting an additional ground for the existence of ‘easy’ cases and determinacy across a legal system—into doubt.

Keywords: jurisprudence, legal philosophy, legal realism, philosophy of law, judicial decision-making

JEL Classification: K10

Suggested Citation

Frydrych, David, Legal Realism and 'Working' Rules (2022). Canadian Journal of Law and Jurisprudence, Monash University Faculty of Law Legal Studies Research Paper , Available at SSRN: https://ssrn.com/abstract=4135556 or http://dx.doi.org/10.2139/ssrn.4135556

David Frydrych (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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