ABSTRACT
The jurisprudence of rules is the body of legal thought that deals explicitly with the question of legal form. In private law, modern legal thought begins with the rejection of Classical individualism. The rhetoric of individualism so thoroughly dominates legal discourse that it is difficult even to identify a counterethic. Eighteenth century common law thinking does not seem to have been afflicted with a sense of conflict between two legal ideals. Modern legal thought is preoccupied with “competing policies,” conflicting “value judgments” and the idea of a purposive legal order, and to that extent has much in common with pre-Civil War thinking. The correspondence between the formal and substantive economic arguments is more intricate and harder to grasp than the moral debate. There is a connection, in the rhetoric of private law, between individualism and a preference for rules, and between altruism and a preference for standards.
