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6 - Form and Content within a Rule – Continued

Published online by Cambridge University Press:  29 July 2009

Robert S. Summers
Affiliation:
Cornell University, New York
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Summary

“[A] body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated… .”

– O. W. Holmes, Jr.

“[I]rrationality of form continually breeds irrationality of substance …”

– R. Pound

INTRODUCTION

In this chapter I continue to concentrate on one type of preceptual form – the overall form of a legal rule – that workhorse precept in all developed systems. First, the purposes of rules and of their overall form are summarized. We then analyze more fully how choices of features within this form contribute to the creation of a rule, and how in the course of this, two-way interactions occur between such choices and choices of policy or other complementary content. Form leaves its imprints and other effects on content, and content in turn shapes form. These interactions, which are set forth throughout in the idiom of choices, are analyzed to advance understanding of the attributes of legal rules, including their makeup, unity, instrumental capacity, and distinctive identity. This will also lay bare more fully the credit due to choices of form in rules for the realization of ends and values.

The role of rationality in the construction of rules will be addressed throughout. Given the founding purpose of creating the functional unit of a legal rule, reason obviously requires adoption of the overall form of a rule.

Type
Chapter
Information
Form and Function in a Legal System
A General Study
, pp. 182 - 210
Publisher: Cambridge University Press
Print publication year: 2005

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