{"id":928,"date":"2016-02-09T10:08:38","date_gmt":"2016-02-09T17:08:38","guid":{"rendered":"http:\/\/fiduciarydutiesblog.com\/?p=928"},"modified":"2016-02-09T17:14:40","modified_gmt":"2016-02-09T17:14:40","slug":"karl-llewellyn-and-the-theory-of-rules","status":"publish","type":"post","link":"https:\/\/fresnolawyerblog.com\/?p=928","title":{"rendered":"Karl Llewellyn and the Theory of Rules"},"content":{"rendered":"

Karl Llewellyn was one of the leading lights of American jurisprudence from the 1930s through the 1950s.\u00a0 Not only was he the dean of Columbia Law School, he participated in the drafting of Article 2 of the Uniform Commercial Code, and was active in efforts to promote its enactment in the different states.<\/p>\n

Add this: Llewellyn was a clear thinker and a gifted writer, and a lawyer through to his core.\u00a0 At his death, he left an unpublished manuscript, The Theory Of Rules<\/strong>.\u00a0 Here are some excerpts, as true today as the day they were written:<\/p>\n

\"Karl_Llewellyn\"<\/a><\/p>\n

\u201cAny lawyer dealing with any problem is looking for a rule of law to cover it, and any lawyer recognizes as a rule (allegedly or actually positive) a formula setting forth in general terms a type of fact-situation and laying down a legal consequence therefor.\u201d<\/p>\n

Right – That\u2019s what we do.\u00a0 We look for rules to cover a fact pattern.<\/p>\n

\u201cThe concept fits not only the speech-usage but the working practices of the profession \u2026 Side by side with this functional attribute sits another: rules of law are rules with the function of accomplishing control by language communication.\u201d<\/p>\n

Right again \u2013 Rules achieve their results by the use of language.<\/p>\n

\u201cUnless the language of a purported rule of law is clear enough to mean roughly similar things to different officials about what to do with [roughly similar] states of fact, that purported rule fails \u2026 to the extent to which its meaning varies.\u201d<\/p>\n

And now a word about what law schools teach to aspiring lawyers:<\/p>\n

\u201cThat I wrote such an observation implies \u2026 that I am judging the bad [rules] by the good ones, seeing their defects against the pattern of what we can do.<\/p>\n

\u201cAnd that our best ones are not the general run is simple to demonstrate.\u00a0 First, if they
\nwere, it would verge on the criminal to give so large a portion of our law curricula over to study of how to deal with not-so-clear rules.\u201d<\/p>\n

And now, Llewellyn shows his skills: \u201cThere is a touch of weaseling in this proposed division, in that recognition is itself a concept of fact; but the weasel is one capable of muzzling, with care.\u201d<\/p>\n

Karl N. Llewellyn, The Theory of Rules<\/strong>, edited and with an introduction by Frederick Schauer (Univ. of Chicago Press 2011)<\/p>\n","protected":false},"excerpt":{"rendered":"

Karl Llewellyn was one of the leading lights of American jurisprudence from the 1930s through the 1950s.\u00a0 Not only was he the dean of Columbia Law School, he participated in the drafting of Article 2 of the Uniform Commercial Code, and was active in efforts to promote its enactment in the different states. Add this: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16],"tags":[],"class_list":["post-928","post","type-post","status-publish","format-standard","hentry","category-legal-education"],"_links":{"self":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/928"}],"collection":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=928"}],"version-history":[{"count":1,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/928\/revisions"}],"predecessor-version":[{"id":929,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=\/wp\/v2\/posts\/928\/revisions\/929"}],"wp:attachment":[{"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=928"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=928"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fresnolawyerblog.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=928"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}