Karl Llewellyn, one of the towering legal minds of the 20th century who helped give birth to Legal Realism, maintained a distinction between “paper rules” and “real rules” (or “working rules”). Paper rules, according to Llewellyn and other Realists, are what you find when you crack open, say, the Michigan Court Rules or the Michigan Compiled Laws; real or working rules are the actual rules judges apply or the decisions they render, often in a manner liberated from the text. This is not to say that judges don’t follow any rules. Rather, according to the Realist movement, judges follow rules that are, in part, of their own devising. It is the role of jurists, then, to ascertain what those rules are, how they will be applied, and which judges prefer them.
Giambattista Vico, writing in chapter two of his De Antiquissima, observed: “An esteemed jurist is, therefore, not someone who, with the help of good memory, masters positive law, but rather someone who, with sharp judgment, knows hw to look into cases and see the ultimate circumstances of facts that merit equitable consideration and exceptions from general rules.”