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 NEW ESSAYS ON THE NATURE OF LEGAL REASONING

This is the first book to bring together distinguished jurisprudential theorists, as

well as up-and-coming scholars, to critically assess the nature of legal reasoning.
The volume is divided into three parts.
The first part, ‘General Jurisprudence and Legal Reasoning’, addresses issues
at the intersection of general jurisprudence – those pertaining to the nature of
law itself – and legal reasoning.
The second part, ‘Rules and Reasons’, addresses two concepts central to
two prominent types of theory of legal reasoning.
The essays in the third and final part, ‘Doctrine and Practice’, delve into the
mechanics of legal doctrine and practice, from a legal reasoning perspective.

Volume 14 in the series Law and Practical Reason

 Law and Practical Reason
The intention of this series is that it should encompass monographs and collec-
tions of essays that address the fundamental issues in legal philosophy. The foci
are conceptual and normative in character, not empirical. Studies addressing the
idea of law as a species of practical reason are especially welcome. Recognising
that there is no occasion sharply to distinguish analytic and systematic work in
the field from historico-critical research, the editors also welcome studies in the
history of legal philosophy. Contributions to the series, inevitably crossing disci-
plinary lines, will be of interest to students and professionals in moral, political,
and legal philosophy.
General Editor
Prof George Pavlakos (Glasgow)
Advisory Board
Prof Robert Alexy (Kiel)
Prof Samantha Besson (Collége de France and Fribourg, CH)
Prof Emilios Christodoulidis (Glasgow)
Prof Sean Coyle (Birmingham)
Prof Mattias Kumm (New York and Berlin)
Prof Stanley Paulson (St Louis and Kiel)
Prof Joseph Raz (Columbia Law School and King’s College London)
Prof Arthur Ripstein (Toronto)
Prof Scott Shapiro (Yale Law School)
Prof Victor Tadros (Warwick)
Recent titles in the series
Volume 8: Private Law and the Value of Choice
Emmanuel Voyiakis
Volume 9: Freedom and Force: Essays on Kant’s Legal Philosophy
Edited by Sari Kisilevsky and Martin J Stone
Volume 10: The Nature and Value of Vagueness in the Law
Hrafn Asgeirsson
Volume 11: Law’s Humility: Enlarging the Scope of Jurisprudential Disagreement
Triantafyllos Gkouvas
Volume 12: Rightful Relations with Distant Strangers: Kant, the EU, and the
Wider World
Aravind Ganesh
Volume 13: The Making of Constitutional Democracy: From Creation to
Application of Law
Paolo Sandro
Volume 14: New Essays on the Nature of Legal Reasoning
Edited by Mark McBride and James Penner
New Essays on the Nature
of Legal Reasoning

Edited by
Mark McBride
and
James Penner
 HART PUBLISHING
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Series: Law and practice reason; volume 14 | “In July 2020, the plan was to host a
workshop on legal reasoning in Singapore, with the aim being to collect and integrate the papers into
a volume … The physical workshop was a casualty of Covid-19, but around that time we did our best to
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 Contents
List of Contributors�������������������������������������������������������������������������������������vii

Introduction��������������������������������������������������������������������������������������������������1
Mark McBride and James Penner

PART I
GENERAL JURISPRUDENCE AND LEGAL REASONING
1. On the Relationship between Law and Legal Reasoning���������������������������5
Frederick Schauer
2. The Law of the Street����������������������������������������������������������������������������23
Barbara Baum Levenbook
3. Must Legal Reasons Be General?������������������������������������������������������������45
Fábio Perin Shecaira
4. The Factor Model and General Jurisprudence�����������������������������������������73
Adam Rigoni

PART II
RULES AND REASONS
5. No Reasons�������������������������������������������������������������������������������������������99
Mark McBride
6. Revisiting the Reasons Account of Precedent��������������������������������������� 113
Grant Lamond
7. Grant Lamond’s Account of Precedent: A Personal Encounter�������������� 139
John Horty
8. How to Govern Conduct��������������������������������������������������������������������� 161
Larry Alexander and Emily Sherwin
9. Working with a Body of Rules: On the Nature of Doctrinal Legal
Disagreement in Judge-Made Law������������������������������������������������������� 175
James Penner
vi Contents

PART III
DOCTRINE AND PRACTICE
10. Thinking Like a Lawyer: An Introduction to Common
Law Method��������������������������������������������������������������������������������������� 201
Sundram Peter Soosay
11. How the Ideal Adversary System’s Argumentative Structure
Threatens Dignity�������������������������������������������������������������������������������� 233
Katharina Stevens and Nicole Lokstadt
12. Lesser Evils, Mere Permissions and Justifying Reasons in Law�������������� 259
Rob Mullins
13. First Among Equals: Abduction in Legal Argument from a
Logocratic Point of View���������������������������������������������������������������������� 281
Scott Brewer

Index��������������������������������������������������������������������������������������������������������� 341
 List of Contributors
Larry Alexander is Warren Distinguished Professor of Law and Co-Executive
Director of the Institute for Law and Religion at the University of San Diego,
USA.
Scott Brewer is Professor of Law at Harvard Law School, USA.
John Horty is Professor in the Department of Philosophy and Affiliate Professor
in the Department of Computer Science at the University of Maryland, USA.
Grant Lamond is University Lecturer in Legal Philosophy at the University of
Oxford, UK.
Barbara Baum Levenbook is Professor Emerita at the Department of Philosophy
and Religious Studies, North Carolina State University, USA.
Nicole Lokstadt is a doctoral student based at McMaster University, Canada.
Mark McBride is Assistant Professor at the National University of Singapore.
Rob Mullins is Senior Lecturer at the TC Beirne School of Law, University of
Queensland, Australia.
James Penner is Kwa Geok Choo Professor of Property Law at the National
University of Singapore.
Adam Rigoni is Senior Lecturer at Arizona State University, USA.
Fred Schauer is David and Mary Harrison Distinguished Professor of Law at the
University of Virginia, USA.
Fábio Shecaira is Adjunct Professor at the Faculty of Law, Federal University of
Rio de Janeiro, Brazil.
Emily Sherwin is Frank B Ingersoll Professor of Law at Cornell Law School,
USA.
Sundram Peter Soosay is an independent scholar.
Katharina Stevens is Assistant Professor at the University of Lethbridge, Canada.
 Introduction
MARK MCBRIDE AND JAMES PENNER

W
HILE THERE HAS been a recent burst of interest in the nature of legal
reasoning – which at its core may be taken to involve investigation of
precedent, distinguishing, overruling and reasoning by analogy, but
whose parameters extend far beyond that core – no single volume has brought
together a group of distinguished jurisprudential theorists of legal reasoning.
In July 2020, the plan was to host a workshop on legal reasoning in Singapore,
with the aim being to collect and integrate the papers into a volume (alongside
a small number of other additional contributions from those unable to attend).
The physical workshop was a casualty of Covid-19, but around that time we did
our best to thrash out some ideas via Zoom.
This collection of essays brings together esteemed philosophers, as well as
more junior scholars, to assess critically the nature of legal reasoning. All of the
13 essays are cutting-edge, and none has been published previously.
The volume is divided into three parts. Part I, ‘General Jurisprudence and
Legal Reasoning’, contains four essays, by Fred Schauer, Barbara Levenbook,
Fábio Shecaira and Adam Rigoni. The essays address issues at the intersection
of legal reasoning and general jurisprudence – that branch of the philosophy of
law pertaining to the nature of law itself. While it would be a surprise if these two
topics did not have a rich intersection, it is notable that they are often pursued
independently of one another. More specifically, Schauer explores the intersec-
tion between law as a normative order (Kelsen’s terminology) and the activities
and decision-making behaviour of lawyers and judges. Levenbook develops a
methodology of creating and testing proposed theories of legal content, and
considers its compatibility with certain positions in general jurisprudence.
Shecaira, meanwhile, interrogates the idea that it is necessarily the case that
legal reasons are general, and also (relatedly) whether judges have an obligation
to ground legal decisions on general reasons. Finally, Rigoni, in an essay that
nicely segues into the second part of the collection, discusses the compatibility
of the so-called reasons model of precedential constraint with various move-
ments in general jurisprudence.
Part II, ‘Rules and Reasons’, contains five essays, by Mark McBride, Grant
Lamond, John Horty, Larry Alexander and Emily Sherwin, and James Penner.
The essays address issues in some sense descending in a level of abstraction from
the first part, and delving into two concepts central to two prominent types of
2 Mark McBride and James Penner

theory of legal reasoning, namely, rules and reasons. The first three essays in
this part form a triptych. McBride offers a cautious defence of a rule model of
legal reasoning vis-à-vis rival reasons models, with much of his energies devoted
to critiquing Lamond. Lamond, in turn, takes the opportunity to revisit and
rearticulate his prominent reasons model of precedential constraint. In the last
essay of this trio, Horty takes the opportunity to pick up on several aspects of
Lamond’s rearticulation. The last two essays in this part switch from models of
legal reasoning based on these concepts to interrogation of one of these concepts
itself, namely, rules. Alexander and Sherwin review some of their seminal work
on rule following, and go on to explore and consider, by way of contrast, the
nature and functions of legal standards. Penner, meanwhile, considers whether
or not Wittgenstein’s insights into the nature of rule following have any practical
or theoretical significance for understanding the rules of law, and the way they
are understood to be followed.
Part III, ‘Doctrine and Practice’, contains four essays, by Sundram Peter
Soosay, Katharina Stevens and Nicole Lokstadt, Rob Mullins and Scott Brewer.
The essays address issues in some sense descending in a level of abstraction from
the second part, and delve into the mechanics of legal doctrine and practice,
from a legal reasoning perspective. Soosay, drawing upon a number of long-
standing doctrinal controversies drawn from English contract, tort and criminal
law, argues that to ‘think like a lawyer’ is inherently practical in nature, a form of
concrete professional activity not so unlike the methods or practices employed
by doctors and engineers. Stevens and Lokstadt examine some of the (neglected)
presuppositions of the adversarial model of civil trials. Mullins considers how
we should best conceive of justification defences, for instance the criminal law’s
permitting us to use force in self-defence. Brewer, meanwhile, drawing upon
detailed analysis of a few well-known US contract law cases, drills into a central
aspect of his logocratic method, namely, abduction in legal argument.
While we cannot – and did not – aspire to exhaustively cover the vast land-
scape of legal reasoning, our more modest hope is that these essays can move
some central debates forward in some significant ways.
 Part I

General Jurisprudence and

Legal Reasoning
4
 1
On the Relationship between
Law and Legal Reasoning
FREDERICK SCHAUER*

F
OR LITERALLY MILLENNIA, theorists of various stripes have sought to pro-
vide an understanding and sometimes a definition of the social phenom-
enon commonly called ‘law’. And for a time measured more in centuries
than in millennia, theorists – usually not the same ones – have sought to explain
the processes by which lawyers argue and reason and by which judges reach their
decisions, all commonly subsumed under the heading of ‘legal reasoning.’ But
are law and legal reasoning the same thing? And if not, what are the differences,
and why should we care about them?
It turns out that the relationship between law and legal reasoning can explain
many – albeit not nearly all – of the differences among some of the major strands
of twentieth- and twenty-first-century legal philosophy. Exploring those differ-
ences may consequently tell us at least something about law, something about legal
reasoning and perhaps something about the enterprise of legal philosophy itself.

I. THREE THEORISTS

A. Ronald Dworkin and the Tradition of Unity

From his earliest to his last writings, Ronald Dworkin focused his attention on
courts and the process of judging.1 And he also, in a marked departure from

* This essay was prepared for the Legal Reasoning Workshop at the National University of
Singapore. I am grateful to Mark McBride and James Penner, both as the organisers and for their
helpful comments, and to Michael Green for valuable insight about Kelsen.
1 Thus, in Ronald Dworkin (1986) Law’s Empire, Cambridge, MA: Harvard University Press,

arguably his most important work, and the place where he develops his own perspective most exten-
sively, the opening line of the book is ‘It matters how judges decide cases.’ And when Dworkin goes
on to say that ‘[j]urisprudence is the general part of adjudication, silent prologue to any decision
at law’ (ibid, 90), he punctuates his willingness – indeed, eagerness – to view the enterprise of legal
philosophy as emerging from and dependent on the process of adjudication.
6 Frederick Schauer

much of the contemporary jurisprudential community and from the bulk of

post-Hartian legal philosophy, steadfastly refused to offer anything resembling a
crisp account of the necessary (or essential) properties of law, or of the concept
of it.2 In his later writings Dworkin did distinguish among sociological, doctri-
nal and taxonomic concepts of law,3 but it is not clear what phenomenon or
phenomena Dworkin was explicating the concept of. At times he seemed to be
seeking to describe, explain and justify an attitude,4 at other times he appeared
to be focusing on the behaviour of judges, lawyers and other actors within a
particular cluster of modern legal systems in developed democracies,5 and at
still other times he trained his attention on identifying that which entitled a
society to use its power of coercion.6
Whether any of these characterisations of Dworkin’s enterprise is correct
I will leave to those more interested in Dworkinian exegesis than I am.
Nevertheless, Dworkin is usefully taken as representing the position that iden-
tifying law involves identifying the sources – or inputs, to use a less pleasing but
also less theory-laden term7 – that legal actors use in making decisions, or that
non-legal actors use in making decisions in alleged reliance on, or guidance by,
law. In deploying Riggs v Palmer8 as a datum in support of his account of law,
Dworkin relies heavily on what Judge Earl for the majority in the New York

2 See William Ewald (1998) ‘Posner’s Economic Approach to Comparative Law’ Texas

International Law Journal 33: 381–86, 386, n 26; Philip Soper (1987) ‘Dworkin’s Domain’ Harvard
Law Review 100: 1166–86. Examples of Dworkin’s resistance to offering a definition of ‘law’, or
to specifying the essential properties of the concept of law, include Ronald Dworkin (1987) ‘Legal
Theory and the Problem of Sense’ in Issues in Contemporary Legal Philosophy: The Influence of
HLA Hart, ed Ruth Gavison, Oxford: Clarendon Press, 9–21, 15–16; Ronald Dworkin (1983) ‘A
Reply by Ronald Dworkin’ in Ronald Dworkin and Contemporary Jurisprudence, ed Marshall
Cohen, Totowa, NJ: Rowman & Allanheld, 247–300, 250–52. I emphasise ‘post-Hartian’ because
the bulk of The Concept of Law is situated well within the anti-essentialist philosophical milieu
within which Hart operated. See Frederick Schauer (2013) ‘Hart’s Anti-Essentialism’ in Reading
HLA Hart’s The Concept of Law, eds Luis Duarte d’Almeida, James Edwards and Andrew Dolcetti,
Oxford: Hart Publishing, 237–46.
3 See especially Ronald Dworkin (2006a) ‘The Concepts of Law’ in Justice in Robes (Cambridge,

MA: Harvard University Press, 223–40; and Ronald Dworkin (2006b) ‘Hart and the Concepts of
Law’ Harvard Law Review Forum 119: 95–104.
4 Dworkin (n 1) 45–86, 410, and especially in the book’s concluding paragraph (at 413).
5 Dworkin (1983) (n 2) 260–62. And, more generally, Ronald Dworkin (1977) Taking Rights

Seriously, London: Duckworth, 14–130.

6 Dworkin (n 4) 190–92.
7 Talk of ‘legal sources’ will, for the jurisprudential cognoscenti these days, elicit connections

with the ‘sources thesis’ developed by Joseph Raz, and which is an essential component of his ‘exclu-
sive positivism’ account of the concept of law. See Joseph Raz (1979) The Authority of Law: Essays
on Law and Morality, Oxford: Clarendon Press, 45–52; Andrei Marmor (2002) ‘Exclusive Legal
Positivism’ in Oxford Handbook of Jurisprudence and Philosophy of Law, eds Jules Coleman and
Scott Shapiro, Oxford: Oxford University Press, 104–24. Raz may or may not be correct, but I want
to think of ‘sources’, at least preliminarily, as simply the things that lawyers rely on in argument and
that judges use in making decisions. And that is why it might be better to think of them as ‘inputs’,
with the question of which inputs are law and which are not being exactly the point at issue.
8 Riggs v Palmer, 22 NE 188 (NY 1889).
 Law and Legal Reasoning 7

Court of Appeals actually used to support his decision. If Judge Earl and others
actually do use principles to support an outcome, then, for Dworkin, these
(and other) principles have become part of the law. And if, as in Henningsen v
Bloomfield Motors,9 the principles that judges use are moral principles that have
not (unlike the principles in Riggs) previously been used or recognised as valid in
the legal system, then such moral principles are also part of the law. Importantly,
as we shall see, at no point does Dworkin say that the use of moral principles is a
common feature of adjudication and of legal reasoning but that such principles
are nevertheless not part of the law. For Dworkin, therefore, the best account
of what judges and other legal actors actually do, described at the appropriate
level of generality, is also an account of law. Or, to put it differently, for Dworkin
what judges use in making decisions is law, and if we want to find out what the
law is in a jurisdiction, we will want to identify and examine the materials that
judges use in reaching and justifying their decisions – and that lawyers use in
arguing to those judges.
When understood in this way, there is little to distinguish Dworkin from
some of his seeming adversaries, at least with respect to the relationship between
law and legal reasoning. Hart, most prominently, offered a conception of what
he labelled the ‘ultimate rule of recognition’ – the criterion determining what
counted as valid law – that imposed no constraints on the types of norms or
sources or inputs that could qualify as sources of law in some jurisdiction.10
Whatever inputs officials actually used in making their decisions in the name of
the law – internalised, in Hartian terminology – would thus count as law in that
jurisdiction.11 Most obviously, this included moral inputs,12 and the position

9 Henningsen v Bloomfield Motors, 161 A2d 69 (NJ 1960). Henningsen is actually a better case

than Riggs for Dworkin’s challenges to legal positivism and to the idea of a rule of recognition. The
principle at work in Riggs – ‘no man shall profit from his wrong’, as it was put in the 19th century –
was well recognised, and explicitly so, within the legal canon at the time, as the Riggs majority
made clear. Not so, however, with Henningsen’s unconscionability principle, and thus Henningsen
provides somewhat better support for the view that legal decision making sometimes draws on
moral principles not previously explicitly recognised by the applicable rule of recognition. I put
aside whether this is or is not a successful challenge to legal positivism, but Dworkin thinks it is, and
from that perspective Henningsen works much better than Riggs.
10 HLA Hart (1961) The Concept of Law, 3rd edn, eds Penelope A Bulloch, Joseph Raz and Leslie

Green, Oxford: Oxford University Press, 2012, 100–10. Legal systems contain myriad rules of recog-
nition, as with the constitutions that ‘recognise’ statutes as law, and the statutes that ‘recognise’
administrative regulations as law. But at the top (or the base, to use a different spatial metaphor for
the same idea) of this hierarchy is the ultimate rule of recognition, whose authority is a matter of
acceptance and existence and not a matter of legal validity, and which is the ultimate determinant of
the kinds of things that count as law in a jurisdiction and the kinds of things that do not.
11 See Matthew Kramer (1999) In Defense of Legal Positivism, Oxford: Oxford University Press;

WJ Waluchow (1994) Inclusive Legal Positivism, Oxford: Oxford University Press; Julie Dickson
(2012) ‘Legal Positivism: Contemporary Debates’ in Routledge Companion to Philosophy of Law,
ed Andrei Marmor, New York: Routledge, 48–64.
12 See Andrei Marmor (2011) Philosophy of Law, Princeton, NJ: Princeton University Press,

92–97.
8 Frederick Schauer

commonly known as inclusive legal positivism,13 and which Hart labelled

‘soft positivism’ when he announced his conditional agreement with it in the
‘Postscript’ to The Concept of Law,14 is nowadays associated with the view
that moral principles can count as valid legal inputs if, contingently, they are
accepted by officials as authoritatively relevant to their decisions in the name of
the law. And as Dworkin pointed out, with no little sense of self-satisfaction, the
space between his picture of law and that offered by inclusive legal positivism
is quite small.15 Accordingly, legal positivism as understood by (the later) Hart
and by the inclusivists uses what legal officials – judges, most prominently –
actually do and actually rely on as the way of identifying what counts as law.16
And if for Dworkin and the inclusive positivists what judges (and lawyers) actu-
ally and explicitly do and actually and explicitly use is plausibly understood
as legal reasoning then there is little, if any, space between the concept of law
and those actual practices of legal argument and legal decision making that are
commonly described as legal reasoning.
Much the same can be said, although perhaps more tendentiously, about
another family of views that appears again intriguingly similar to Dworkin in
this dimension, although plainly not in many others. And here I am talking about
American Legal Realism. Holmes plainly overstated things when he defined law
in terms of ‘[t]he prophecies of what the courts will do in fact’,17 but his claim
nevertheless, as with Dworkin’s, treated the behaviour of the courts, and by
implication their modes of reasoning and decision making, as largely congruent

13 See Kenneth Einar Himma (2002) ‘Inclusive Legal Positivism’ in Oxford Handbook, eds

Coleman and Shapiro (n 7) 125–65. An earlier label was ‘incorporationism’, as used in, most promi-
nently, Jules Coleman (1982) ‘Negative and Positive Positivism’ Journal of Legal Studies 11: 139–64,
and Jules L Coleman (1998) ‘Incorporationism, Conventionality, and the Practical Difference Thesis’
Legal Theory 4: 381–425. Even earlier, see David Lyons (1977) ‘Principles, Positivism, and Legal
Theory’ Yale Law Journal 87: 415–35; E Philip Soper (1977) ‘Legal Theory and the Obligation of
the Judge: The Hart/Dworkin Dispute’ Michigan Law Review 75: 473–519.
14 Hart (n 10) 238–76. I say ‘conditional agreement’ because Hart accepted soft positivism only

insofar as the moral norms that a rule of recognition might recognise were in some sense objective:
ibid, 254. And James Penner suggests to me, plausibly, that even Hart’s ‘agreement’ was cautious,
even avoiding direct criticism (ibid) of Raz’s contrary position.
15 Ronald Dworkin (2006a) ‘Thirty Years On’ in Justice in Robes (n 3) 187–222, esp at 188, where

Dworkin describes Coleman’s inclusive positivism as ‘so stunningly like my own’. Obviously, there
is a difference between the natural law position that morality is necessarily a criterion of legal-
ity and the soft positivist position that morality may, contingently, be a criterion of legality. But
because Dworkin never maintained that his account of law was a necessary account of the role of
morality in determining legal validity in all possible legal systems in all possible worlds, the differ-
ences between Dworkin and the soft positivists, at least at the conceptual level, are smaller than is
commonly supposed. Dworkin’s account of the role of morality in actual legal decision making
(that is, at the sub-conceptual level), however, was substantially exaggerated. See Frederick Schauer
(2004) ‘The Limited Domain of the Law’ Virginia Law Review 90: 1909–56; Frederick Schauer (1997)
‘Constitutional Invocations’ Fordham Law Review 47: 1295–1312.
16 See Frederick Schauer (2017) ‘What Counts as Law,’ Valparaiso University Law Review 52: 1–17.
17 Oliver Wendell Holmes (1897) ‘The Path of the Law’ Harvard Law Review 10: 457, 461.
 Law and Legal Reasoning 9

with how he understood the very idea of law.18 Much the same can also be said
about the work of the other Legal Realists. Although Karl Llewellyn’s observa-
tion that ‘what these officials do about disputes is, to my mind, law itself ’19
is commonly caricatured, distorted and taken out of context,20 it does repre-
sent the focus of Llewellyn and of most of the other Realists21 on the actual
behaviour of judges in developing their accounts, even if not their definitions, of
law. Llewellyn may be unfairly saddled with the literal reading of the foregoing
quote, as Twining makes clear,22 but there is little doubt that he and most of his
intellectual fellow-travellers would have been impatient, at best, with trying to
separate the idea of law from the reasoning and decision-making processes of
those who operated within the legal system.

B. Hans Kelsen and the Universal Incompleteness of Law

The receptiveness of theorists and theories as otherwise diverse as Ronald Dworkin,

the inclusive legal positivists and the American Legal Realists to the substantial
overlap between conceptions of law and accounts of what judges and other legal
actors do becomes particularly interesting once we appreciate the extent to which
there is a decidedly different view and consequently a different tradition. And here
the major figure, and the starting point for this different tradition and different
account of law, is Hans Kelsen. Using the illuminating metaphor of a frame with-
out a picture, Kelsen notably insisted that no legal act – no judicial decision, for
example – could be completely determined by the law.23
It is not immediately clear what Kelsen meant by this, especially because he
also insisted that law was a gapless enterprise.24 On the face of it, it appears

18 I say ‘very idea’ to emphasise that Holmes, as with most of the other Legal Realists, would have

had little patience with conceptual analysis of the concept of law, however much he may well have
presupposed a particular concept of law. See Brian Leiter (1998) ‘Realism, Hard Positivism, and
Conceptual Analysis’ Legal Theory 4: 533–47.
19 KN Llewellyn (1930) The Bramble Bush: On Our Law and Its Study, New York: Columbia Law

School, 12.
20 See William Twining (2012) Karl Llewellyn and the Realist Movement, 2nd edn, Cambridge:

Cambridge University Press, 147–52.

21 See Frederick Schauer (2013) ‘Legal Realism Untamed’ Texas Law Review 91: 749–80. Although

Llewellyn avoided opining on the ‘nature’ of law, and although he felt it important to distinguish law
from the entire social order, he nevertheless insisted that law’s ‘technical measures and [] personnel’
need to be understood as necessarily conjoined. See Karl N Llewellyn (1938) The Theory of Rules,
ed Frederick Schauer, Chicago, IL: University of Chicago Press, 2011, 91–94.
22 And see also Frederick Schauer (2011) ‘Editor’s Introduction’ in Llewellyn (n 21) 1–3.
23 Hans Kelsen (1967) Pure Theory of Law, tr Max Knight, Berkeley, CA: University of California

Press, 245, 348–56; Hans Kelsen (1934) Introduction to the Problems of Legal Theory, tr Bonnie
L Paulson and Stanley L Paulson, Oxford: Clarendon Press, 1992, 80. And see, for particularly
important explication, Pierluigi Chiassoni (2019) Interpretation without Truth: A Realistic Enquiry,
Cham, Switzerland: Springer, 103–24.
24 See Eugenio Bulygin (2013) ‘Kelsen on the Completeness and Consistency of Law’ in Kelsen

Revisited: New Essays on the Pure Theory of Law, eds Luís Duarte d’Almeida, John Gardner
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