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This chapter advances a modest account of legal pluralism and its significance for states. It argues that a legal order can contain multiple rules of recognition that lead to the order containing multiple, unranked, legal sources. These rules of recognition are inconsistent, and there is the possibility that they will, in turn, identify inconsistent rules addressed to individuals. In addition, pluralist orders lack a legal mechanism able to resolve the inconsistency; there is no higher constitutional body that can resolve this dispute through adjudication or legislation. Consequently, pluralist legal orders contain a risk, which need not be realized, of constitutional crisis; of officials being compelled to choose between their loyalties to different public institutions.

This chapter evaluates the Court's references to international State immunity law in Al-Adsani v. United Kingdom, Fogarty v. United Kingdom, and McElhinney v Ireland. The three cases concerned a very controversial area of State immunity, namely torture committed outside of the forum State, a tort committed in the forum State, and employment relationships in an embassy. These themes are especially adapted to an analysis of the Court's reception techniques in international law, given that they are part of a sphere of law which is still in a state of flux. It is argued that the Court's approach — guided by pragmatic considerations — remained hermetic and traditional. Facing a conflict between international legal rules, the Court chose to proceed on the basis of domestic law and practice. In this context, its approach was influenced by the margin of appreciation granted to Contracting States, which lead the Court to defer to their position.

On a view that emerges from the “law and economics movement,” the purpose of law is to ensure that when individual citizens seek to maximize their individual utility, they will incidentally maximize society’s utility; the law ideally provides individual agents with incentives for efficient behavior. Finkelstein argues that laws that maximize social utility are not necessarily the best legal rules for individuals that seek to maximize their personal utility. In particular, she suggests that ideally rational individuals would be unlikely to select the principle of utility maximization as the basis for choosing ideal legal rules. If Finkelstein is correct, the assumption that human beings are rational utility maximizers would have very different consequences from those that legal economists have identified. Rational actor theory would be more likely to lead us to justify legal rules structured around contractarian principles, i.e., principles of agreement, than around the principle of utility maximization.

This chapter extends the analysis applied in Chapter 3 from a basic, bipartite, ex post model of dispute resolution to the context of prospective general legal rules. It first outlines the dispute-resolving benefits of statutes and other general rules: They can avoid disputes and make them easier to resolve when they arise. It then explains how democracy—a system of broadly participatory government subject to general elections and operating by majority rule—is a relatively competent and impartial way for generating prospective legal rules. Democracy promotes impartiality by atomizing the effects of partial decision-making into many equally weighted votes; it promotes competence by involving a wide spectrum of talents, experiences, viewpoints, and interests in decision making; and it promotes both competence and impartiality by allowing power to shift and issues to be revisited periodically. Democracy thus is a quintessentially legal method of making rules.

This chapter uses the dispute-resolution account of legal authority to describe the basic relationship between adjudication and legislation in a democracy. While statutes and other general legal rules can help avoid and resolve disputes, their inevitable indeterminacy means that, despite the aspirations of legal formalists, procedures of adjudication must be developed to apply them in particular circumstances. These adjudicative procedures themselves must be reasonably competent and impartial in order to possess authority. The participation that characterizes the “adversary system” of adjudication, and the interest representation that characterizes the common law, both contribute to the competence and impartiality of adjudication and thus to its authoritativeness. Adjudication derives additional authority when it seeks to interpret democratic statutes by implementing their linguistic intentions and their justifications.

This chapter begins with a discussion of the different forms and shapes of suretyships, and the diverse legal responses to them. It then addresses the question of whose interests should prevail. This is followed by discussions covering information disclosure and form-based requirements, intervention in the terms of the suretyship contract, legal rules affecting the context in which suretyships are agreed and enforced, and the constitutional dimension to the control exercised over private relationships, including contracts.

Examines the various legal standards, rules, or tests that have been used by the U.S. Supreme Court to resolve free exercise cases, and places these tests within the full factual and legal contexts of the cases. Particular attention is paid to the no‐exception test adopted in 1879 in the Reynolds case, the tests used in the important string of Jehovah's Witnesses cases of the 1940's, the more recent compelling state interest test as used in an Amish case involving compulsory formal education of children up to the age of 16, and finally the neutrality standard of the 1990 Smith case that reinvigorated the no‐exception test of 1879. A careful, detailed review of the particulars of the cases shows that the underlying analytical process used is excruciatingly influential to the ultimate decision: Justices in factually similar cases purportedly using the same abstract legal test reach different conclusions based upon the analytical process they use.

This chapter focuses on the thesis that all legal rules are defeasible in the sense that they are open to a set of exceptions incapable of exhaustive statement. It presents this thesis through an analysis of Schauer's ideas on the under- and over-inclusive character of rules. It shows first, that under-inclusiveness is not a genuine problem of rules; second, that the differences between over-inclusiveness and defeasibility are broader than those Schauer acknowledges; and third, that the strong defeasibility thesis has the consequence of turning rules into useless tools for practical reasoning. On those grounds, the chapter considers two different arguments that may and have been held to justify the claim that legal rules are defeasible, based on the difficulties involved in the identification of rules from legal materials. The aim here is to demonstrate that, in spite of their initial soundness, both arguments fail to validate the conclusion that legal rules are subject to exceptions impossible to state exhaustively in advance. The chapter concludes with some remarks on the compatibility between legal positivism and the strong defeasibility thesis.

This chapter concentrates on the protection of property rights through expropriation norms and the way the articulation and adjudication of these may impact upon human rights goals. The purpose of this chapter is two-fold: firstly to consider whether anti-expropriation norms are a barrier to human rights promotion through their content, application, or even the regulatory chill effects that might flow from expansive indirect takings norms; and secondly, to consider to what extent the development of comprehensive and balanced tests at the interface of potentially conflicting international governance regimes places great responsibility on adjudicators to expand upon the more open-ended norms that typically arise from treaty negotiations. A subsidiary question is whether the traditionally private field of international arbitration is as well suited to perform this function as a more permanent body such as the Appellate Body of the WTO or a body with broad public international law expertise such as the International Court of Justice.

This chapter explores strategies to achieve acceptance of a right to secede, whether as a legal rule or as a model for individual states. Secession is a hard sell, and the principal battleground is moral and political. A shift in attitudes must precede the legal project; only then will people see doctrinal arguments lining up and making sense. And, after all, the goal is not a new legal right for its own sake, but a change in how societies and states behave. The chapter then considers why a formal right of secession is implausible, and what that implies about the best strategies to adopt—the narrow but real possibilities that exist. The path is indirect: It relies on transnational diffusion of norms, and for this people can draw lessons from once-improbable projects that have become orthodoxies, such as decolonization and human rights; also, recent secession attempts suggest that constitutional projects could serve as models. The path leads through many small changes, rather than a single, quixotic swerve toward a new legal rule. But because the existing global norm limits the ability to create change within states, people cannot abandon the idea of a new rule: Advocates of secession need a point of triangulation outside the state to advance their cause, and that point will be found in international law.

Building on earlier work, this chapter develops a model of legal rules that admit of exceptions but are nonetheless governed by classical logic. The account is defended against alternative accounts that construe legal rules as generics, or as default rules.

The rule of recognition, as a social fact, aids in understanding how social rules make up a system of law in two ways. First, it serves as an ultimate rule that links rules to form a system as it identifies the conditions under which new rules are made and provides the basis for determining whether any social rule is a legal rule. Second, it bestows authority on specific rules as laws since any law made that complies with the rule of recognition obtains a binding quality that requires officials to act in accordance with the rule. Its two elements involve convergent behaviour on the officials's part and an internal attitude that considers the said convergent behavior as obligatory. Admiration and scepticism regarding the rule of recognition has raised issues and these are discussed in this chapter.

A theory of legal reasoning requires and is required by a theory of law. It also recognizes that Dworkin's critique of positivists for having concentrated to excess on one type of legal standards, legal rules, makes a very palpable hit. The principles interact with the rules, underpin them, hedge them in, qualify them, justify the enunciation of new rulings as tested out by consequentialist arguments, and so on. The theory presented has been that the judicial duty to do justice according to law is a highly complex one. The theory of legal reasoning provides full weight to the operation of principles and other standards in the legal process, and it shows that judges never have more than a limited discretion in hard – or any other – cases. It may be thought that the theory follows Dworkin's in assuming that principles are of necessity concerned with rights rather than with ‘collective goals’ or anything else.

For a rule to become a legal rule, it has to be legally valid. For a law to become a legal law, it has to be legally valid. Similarly, a valid rule is a rule and an invalid rule is not a rule. This chapter discusses the legal validity of rules. The first section explains the nature of legal validity and the validity of rules. The chapter also discusses systemic validity, wherein it is shown that the justification view of legal validity is compatible with the dependence on factual sources. It furthermore examines the other difficulties of the justification view found in the interpretation of detached legal systems, and includes a discussion of legal validity within the context of positivism.

This chapter begins with a discussion of normative coherence. It then discusses analogies and their relevance of what judges call ‘developing the law’, that is extending or restating a legal rule or principle to make it cover, or to show how it covers, novel situations of a kind that Joseph Raz suggests calling ‘unregulated cases’. This can also be viewed as analogy being used to fill ‘gaps’ in the law, which is accurate enough in capturing the way judges and counsel dedicate extensive research to satisfying themselves that there really is no prior statute or decision that does regulate the matter at hand.

This chapter discusses forms and sources of protection for economic interests that provide an alternative to the law of tort. It aims to provide an account of alternatives and examines their relationship with and their impact on the tort law. The main focus of the chapter is on other legal rules which play indispensable roles in providing legal protection for legal interests. These alternatives aimed at protecting economic interests include law of property, maritime law, law of trust and equitable principles, law of restitution, law of contract, defendant's interest in minimizing liability, self-help, and public law.

Both Hart and Weismann wrote on the existence of ‘open texture’ within the circumstantial gaps of human-flawed rules and practical perception. Weismann derived the term from his approach to Wittgenstein's philosophy, and argued on the general vagueness of the language. H.L.A. Hart argued on judicial interpretation between formalism and rule-scepticism that legal rules have an applicable meaning in accordance with the depending situation, but the problem lies within the language vagueness in interpreted application. The chapter discusses Hart's view on the nature of language, rules and rule application.