Chapter

A Problem: Rules or Habits?

Neil MacCormick

in Institutions of Law

Published in print January 2007 | ISBN: 9780198267911
Published online January 2009 | e-ISBN: 9780191714832 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198267911.003.0005

Series: Law, State, and Practical Reason

 A Problem: Rules or Habits?

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This chapter explores the issue of the potential ‘gap’ between law as enacted and law as acted out. It identifies two kinds of gap. First, judges and lawyers and other court officials are likely to have their own routines and habits and ways of carrying out their official or professional work. The formal rules will come to be modified and overlaid with other considerations and habits in the overall folk-ways of working legal life in any real setting. The second sense of the ‘gap’ is the ‘efficacy gap’. It is very much an open question how much of the official law is any part of the working consciousness of laypersons. It is also questionable to what extent their sense of what is right and proper depends on, and how far it diverges from, what the official law enjoins either in the sense of abstract texts or in the mediated form filtered through professional and official practice.

Keywords: law; habit; rule; gap

Chapter.  7280 words. 

Subjects: Jurisprudence and Philosophy of Law

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