The Unruliness of Rules
Analytical jurisprudence depends on a posited relation between rules and morality. Before we may answer persistent and important questions of legal theory – indeed, before we can even know what those questions are – we must understand not just the operation of rules but their operation in relation to morality. Once that relationship is formulated, we may then come to terms with the likes of inductive reasoning in Law, the role of precedent, and the fit, such as it is, between Natural Law and Positivism as well as even the coincidence (or lack thereof) between inclusive and exclusive positivism. That is the thesis of The Rule of Rules (“Rules”). Professors Larry Alexander and Emily Sherwin of the University of San Diego School of Law have written what would be (and what may be) a prolegomenon. They use the rules-morality d uality to reveal a cleavage in the Law that could intimate the ultimate moral impossibility of Law. So their critique is comprehensive. The cleavage, or “gap,” they identify is a function of rules’ operation as the bases of authoritative settlement and it is authoritative settlement that responds to what a primitive, prelegal, community lacks.3 An account of Rules’s contribution must engage the authors’ conception of the rules-morality tension because that tension provides the lens through which the authors build a jurisprudence, or at least a jurisprudential perspective. This Review considers the cogency of their conclusions if they have posited the rules-morality tension accurately and asks some of the questions required to determine whether their formulation can support the weight they would impose on it.