Blackstone's Tower: The English Law School - College of Social ...

The Quest For a Core
like "rule" have many usages. For example, when Dworkin
attacked Hart's concept of law as a system of rules, he restricted
the term to categorical precepts that have an all-or-nothing quality
in contrast with principles, which are more open-ended but are,
in his view, an integral part of law. 74 However, "rule" is often used
in a broader sense, as a generic term which encompasses all kinds
of general prescription, including principles, precepts, maxims,
guidelines, standards, conventions, and customs. In this usage it is
synonymous with the more technical "norm". The broader usage
best fits the claims that rules are a central and necessary focus of
legal studies or that law is a normative discipline. 75
Such claims have broad support from jurists who are usually seen
as having quite different theories of law; but they have not gone
unchallenged. For example, with one possible exception, none of
the jurists discussed in this chapter denied the centrality of rules
in law or its normative character. Bentham, Hart, Kelsen, Natural
Lawyers, and Dworkin, for example, have different conceptions of
law, but all affirm its normative character. Holmes and other American
Realists have sometimes been accused of giving an account
of law in terms of brute fact, using terms such as habit and prediction
in a non-normative sense. The standard defence is to concede
that such an account would be mistaken, but to maintain that this
is a misinterpretation of their ideas: Holmes's Bad Man who is only
concerned with prediction is just one legal actor among many 76 .
Similarly the recent shift of emphasis in legal education from knowledge
of legal doctrine to "skills" does not involve denial of the
importance of doctrine nor the abandonment of the idea of "rule".
Negotiation, advocacy, drafting, and other lawyers' operations not
only take place "in the shadow of the law" but are also constituted
and regulated by statutes, conventions, guidelines and other norms.
They are largely rule-governed activities.
It is worth pausing here to make some points about "rulescepticism",
which has often been the source of unnecessary misunderstandings
and distortions. I have suggested that the central
precept of "realism", "law in context" or other movements to
broaden the study of law can be rendered: "For the purpose of
understanding law, and for most practical legal purposes, the study
of rules alone is not enough." One way of justifying this proposition
can be stated succinctly: rules are not self-creating, selfidentifying,
self-articulating, self-interpreting, self-applying, selfimplementing
or self-justifying. It is almost invariably misleading
to treat rules as things in themselves without reference to the con-
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