My Essay is a response to legal realism, to its well-known arguments against "rules of law." Legal realism, seeing itself as an empirical practice, was not convinced that there could be any set of rules, formalized on the grounds of logic, that would have a clear determinative power on the course of legal action or, more narrowly, on the outcome of litigated cases. The decisions made inside the courtroom - the mental processes of judges and juries - are supposedly guided by rules. Realists argued that they are actually guided by a combination of factors, some social and some idiosyncratic, harnessed to no set protocol. They are not subject to the generalizability and predictability that legal rules presuppose.
That very presupposition, realists said, creates a gap, a vexing lack of correspondence, between the language of the law and the world it purports to describe. As a formal system, law operates as a propositional universe made up of highly technical terms--estoppel, surety, laches, due process, and others--accompanied by a set of rules governing their operation. Law is essentially definitional in this sense: It comes into being through the specialized meanings of words. The logical relations between these specialized meanings give it an internal order, a way to classify cases into actionable categories. These categories, because they are definitionally derived, are answerable only to their internal logic, not to the specific features of actual disputes. They capture those specific features only imperfectly, sometimes not at all. They are integral and unassailable, but hollowly so. In the emphatic words of Karl Llewellyn, "Legal rules mean, of themselves, next to nothing. They are verbal formulae, partly conveying a wished-for direction and ideal. But they are, to law students, empty. " Felix Cohen was even more blunt. Jurisprudence, as the decisional rules between linguistic entities, "is a special branch of the science of transcendental nonsense."
Dimock, Wai Chee
"Rules of Law, Laws of Science,"
Yale Journal of Law & the Humanities:
1, Article 7.
Available at: http://digitalcommons.law.yale.edu/yjlh/vol13/iss1/7