Legal Realism and 'Working' Rules
Canadian Journal of Law and Jurisprudence
61 Pages Posted: 17 Jun 2022
Date Written: 2022
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: Suggested Citation