Rules
Kevin Tobia (Ed.), Cambridge Handbook of Experimental Jurisprudence. Cambridge University Press, Forthcoming
19 Pages Posted: 28 Apr 2023
Date Written: April 17, 2023
Abstract
Rules are ubiquitous. They figure prominently in all kinds of practical reasoning. Rules are especially important in jurisprudence, occupying a prominent role in answers to the question of “what is law?” In this chapter, we start by reviewing the evidence showing that both textual and extra-textual elements exert influence over rule violation judgments (section II). Most studies about rules contrast text with an extra-textual element identified as the “purpose” or “spirit” of the rule. But what counts as the purpose or the spirit of a rule? Is it the goal intended by the rule maker? Or is purpose necessarily moral? Section III reviews the results of experiments designed to answer these questions. These studies show that the extra-textual element that's relevant for the folk concept of rule is moral in nature. Section IV turns to the different explanations that have been entertained in the literature for the pattern of results described in Sections II and III. In section V we discuss some other extra-textual elements that have been investigated in the literature. Finally, in section VI, we connect the results about rules with other issues in legal philosophy. We conclude with a brief discussion of future directions.
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