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Limits of LegalityThe Ethics of Lawless Judging$
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Jeffrey Brand-Ballard

Print publication date: 2010

Print ISBN-13: 9780195342291

Published to Oxford Scholarship Online: September 2010

DOI: 10.1093/acprof:oso/9780195342291.001.0001

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Adherence Rules

Adherence Rules

(p.111) 7 Adherence Rules
Limits of Legality

Jeffrey Brand-Ballard (Contributor Webpage)

Oxford University Press

This chapter poses five questions. First, are adherence rules serious rules or pseudorules? Second, what reasons do various adherence rules provide to judges? Third, what reasons do various adherence rules exclude from consideration? Fourth, which adherence rules, if any, do lawmakers have reasons to promulgate and why? Fifth, how should judges take adherence rules into account in their decisions? The function of adherence rules is analyzed in light of discussions by Joseph Raz and Frederick Schauer. The chapter distinguishes between permissive, moderate, and restrictive adherence rules. Various arguments for promulgating adherence rules are discussed, including arguments from formal legality, settlement, predictability, stability, error, efficiency, coordination, reliance, legitimacy, autonomy, respect, and fairness. The chapter concludes that there are good reasons to promulgate a restrictive rule.

Keywords:   serious rules, exclusionary reasons, content-independent reasons, settlement, coordination, reliance, legitimacy, autonomy, stability

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