How to Do Things with Rules

by William Twining , David Miers

• ISBN13: 9780521144308
• ISBN10: 0521144302
• Edition: 5th
• Format: Paperback
• Copyright: 2010-06-28
• Publisher: Cambridge University Press

Summary

This popular book is an enjoyable and thought-provoking introduction to some basic human skills in handling rules. It demystifies legal method by combining a wide range of concrete examples with a fundamental account of rules in general; their use as problem-solving devices; the who, what, why and how of interpretation; why doubts about interpretation arise; and reasoning about competing interpretations. It emphasises the continuities between interpretation of non-legal and legal rules and between theory and practice. The central theme is that, in both routine and difficult cases, interpretation is best approached by an intellectual procedure that clarifies the interpreter's standpoint and context, identifies the factors that may be giving rise to doubts and provides a basis for constructing arguments.

Author Biography

William Twining is Quain Professor of Jurisprudence Emeritus at University College London and a regular Visiting Professor at the University of Miami Law School. His recent works include General Jurisprudence and Analysis of Evidence (with Anderson and Schum), both of which are closely related to this book. David Miers is professor of Law at Cardiff. He is the author of Regulating Commercial Gambling and many publications on legislation. He has been Chairman of the Study of Parliament Group and a regular adviser on policy relating to gambling, crime victim compensation and legislative reform.

Table of Contents

Preface	p. xiii
Online appendices	p. xxiv
Acknowledgements	p. xxv
Abbreviations	p. xxvii
Table of statutes and legislative instruments	p. xxix
Table of cases	p. xxxvii
	p. 1
Some food for thought	p. 3
Introduction	p. 3
The pervasiveness of norms	p. 6
Normative and legal pluralism	p. 6
Interpretation	p. 10
Standpoint and role	p. 15
Rules and relationships	p. 23
Rules and reasons	p. 32
Rules and results	p. 35
Visual presentations of rules	p. 44
Statutory interpretation and precedent: bigamy	p. 46
Discretion to disobey	p. 53
Human rights and freedoms	p. 58
Reading, using and interpreting rules in general	p. 67
Problems and mischiefs	p. 69
Of rules in general	p. 80
What is a rule?	p. 80
Rules and values	p. 87
The form and structure of a rule	p. 89
Rules, exceptions and exemptions	p. 92
The variety of rules	p. 94
Rules and systems	p. 97
Reifying rules: a note of warning	p. 102
The functions of rules	p. 107
Rules as techniques of social management	p. 111
Two views of rules: formalism and instrumentalism	p. 114
Other perspectives on rules	p. 119
Interpretation and application	p. 121
Interpretation: what?	p. 122
Law and fact	p. 125
Interpretation and application	p. 131
Rule-handling	p. 132
Who interprets?	p. 133
Role-makers and rule-interpreters	p. 141
Legalism	p. 143
Leeways for interpretation and application	p. 145
Imperfect rules	p. 148
The factual context of rules	p. 149
Intentions, reasons and purposes	p. 150
The role of purposes and other reasons in interpretation	p. 158
Rules and language	p. 162
The open texture of rules	p. 169
Reading law: reading, using and interpreting legislation and cases	p. 173
Routine and problematic readings	p. 175
Routine readings	p. 175
Problematic readings: conditions of doubt	p. 176
A diagnostic model: structure	p. 178
A diagnostic model: application	p. 183
Legislation	p. 193
Introduction	p. 193
Reading legislation: what? Why? how?	p. 195
Interpreting legislation	p. 230
Clarification of standpoint and role	p. 231
Checking the currency of the statutory material	p. 231
Identification of the conditions of doubt	p. 235
The construction of arguments	p. 236
Reading cases	p. 268
Reading cases: what? Why? how?	p. 268
Cases as precedents	p. 276
Two perspectives on precedent	p. 277
The doctrine of precedent	p. 279
The practice of precedent	p. 295
The ratio decidendi of a case	p. 304
X = X = X	p. 312
The European dimension	p. 315
The European Union	p. 315
The European Convention for the Protection of Human Rights and Fundamental Freedoms	p. 325
The Human Rights Act 1998	p. 326
A note on judicial style	p. 334
Rules, reasoning and interpretation	p. 336
From diagnosis to argument	p. 336
The structure of argument	p. 338
Reasoning, rules and law	p. 343
Lawyers' reasonings	p. 363
Epilogue: towards a theory of legal interpretation?	p. 365
Literary analogies, radical indeterminacy and noble dreams	p. 370
	p. 377
Questions and exercises	p. 379
Index	p. 391
Resources on the web
The following text can be found on-line at www.cambridge.org/twiningandmiers
Supplementary materials and exercises on Chapter1
Normative and legal pluralism
Visual presentation of rules
The Reading Law Cookbook
Supplementary materials and exercises on Chapters 7-10
Supplementary materials and exercises on Chapters 9 and 11
Domestic violence: a case study
MPs' expenses: a case study
Hunting Act 2004: a case study
Suggestions for further reading
Table of Contents provided by Ingram. All Rights Reserved.