Modeling Legal Rules
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Holton_modelling.legal.rules.pdf
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Author(s)
Holton, Richard
Date Issued
August 2011
Journal
Philosophical Foundations of Language in the Law (book)
Publisher
Oxford University Press
Citation
Holden, Richard. "Modeling legal rules." Chapter 8 in Philosophical Foundations of Language in the Law, edited by Andrei A. Marmor and Scott Soames. Oxford ; New York: Oxford University Press, 2011.
Version
Author's final manuscript
Abstract
Common law rules admit of exceptions. When a court, especially a higher court, finds
that the routine application of a rule would result in an injustice, it is likely to
distinguish. It will concede that yes, the case does appear to fall under the rule as it is
currently understood; but will insist that there are further factors, not mentioned in the
rule (though perhaps acknowledged in other rules in other parts of the law) that
distinguish this case from the cases that the existing rule was meant to cover. The court
will conclude that in this case the verdict that the existing rule suggests would be
wrong. Nevertheless, the old rule does not die. When the writers of case books come
to accommodate the new ruling it will come in as an amendment: the old rule was
correct except under these new circumstances.
MIT Department
Massachusetts Institute of Technology. Department of Linguistics and Philosophy
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Creative Commons Attribution-Noncommercial-Share Alike 3.0
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DOI of Published Version
https://doi.org/10.1093/acprof:oso/9780199572380.001.0001
