What is Law and how is it to be made?

Law Article, 2021

As apparent from the title itself, this article seeks to conduct a philosophical enquiry into the 'nature', 'necessity' and 'origin' of 'Law' in order to explore answers to the following three moot questions:

NLIU LAW REVIEW, 2020

This paper poses the question whether jurisprudence has a method that it can call its own. In search of answers, the paper analyses methodological elements in well known theories starting with Austin. It traces the evolution of legal theory from the methodology of Austin to the more advanced methods of Hart and Raz. Hart's view that jurisprudence can be descriptive is then contrasted with the normative approaches of Finnis and Dworkin. In the last section of Part I, the paper discusses Chattrapati Singh's theory of law drawing from his book Law from Anarchy to Utopia. In Part II, the paper discusses three aspects of methodology. The paper briefly deals with the major points of tension between various methodological claims in the theories discussed in Part I. The paper goes on to suggest that rather than construct grand theories of law attempting to explain all that is associated with law, we might be better off attempting to uncover the mysteries of law, little by little. Second, the paper questions the claim that a theory of law if successful must be true of all legal systems. The paper argues that the claims that a theory makes should ordinarily be thought of as valid only for the normative systems that it has considered. Last, the paper comments on the extent to which empirical inputs must be considered necessary in building a theory of law. It is suggested that imposing a condition that theories must be empirically justified does not necessarily mean theorising has to be preceded by some act of scientific data gathering.

Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press), 2021

This chapter addresses the question of the concept of law and its analytical relevance. By mixing conceptual clarification and semantic probes, and by shifting its scrutiny towards the Western legal experience, it seeks to underscore the problematic nature of characterizing law as a universal concept. On the contrary, we intend to show that law, in the sense by which it is globally understood today, is the outcome of a contingent experience whose extension to other historical and cultural contexts has been achieved at a huge price: heuristic weakness, analytical vacuity, grammatical incoherence, pluralist dogmatism. We conduct this exploration of the concept of law in three stages. First, we examine works dealing with "legal pluralism" and "legalism" to identify the reasons why the term 'law', its conceptual extension, and the attribution of its predicative quality are problematic and badly reflect the gap that can exist between a 'legalistic way of thinking' about the world and the existence of law in its contemporary meaning. Second, we specifically address works dealing with 'Islamic law' and law in Muslim contexts to try to see what law can be at the margin, at what Herbert Hart nicely called its fringe of penumbra, but also what people make it into, often abusively. Third, we seek to outline the contours of a conceptual inquiry, delimiting its relevance, specifying its limits, taking advantage of its analytical razor, clearing the mist, opening the domain of grammar. We thus pave the way for a later examination of the historical ontology of the concept of law and for the ethnography of its practices. Uses and Abuses of the Concept of Law Let us start with concepts of law presented as alternatives to positivism. From the critique of several collections, we will review the notions of 'folk law', 'legal pluralism', and 'legalism', with the aim of tackling the conceptual issues they raise and the analytical dilution resulting from them. It will allow us to stress the contingency of the concept of law and the stalemate into which its extensive meanings lead us. Folk Law and Legal Pluralism Folk Law: Essays in the Theory and Practice of Lex Non Scripta is a kind of manifesto of the current of folk law and legal pluralism (Dundes Renteln & Dundes, 1994). It is emblematic of the stalemate into which the search for a universal concept of law leads us. While recognizing, as Gluckman does, that the term 'law' and its derivatives have various meanings (Gluckman, 1965: 227), most contributions are based on an implicit concept that allows us to describe the many historical and geographical experiences as instances of the same concept. In the same way, many contributions make the correct observation that the study of the constitutive elements of so-called 'primitive law' starts from the characteristic features of modern law and doctrine (Josselin de Jong, 1994: 111); or that the idea that the 'Common Law' is a set of rules constituting a system is closely associated with legal positivism and derives from the concept of any law in terms of the model of legislated law (Simpson, 1994: 122); or that the concept of law held by an English lawyer today is largely influenced by Austinian theory and its later positivist versions, like Kelsen's or Hart's, all of them tending to think of law as a system of rules emanating from a focal point at the top of a pyramidal structure (Hag Ali, 1994: 36). However, they do not draw the conclusions of this assessment, that is, that the very idea of a 'law' characterized as primitive, customary,

2000

Re-framing discussion of the question, "What is law?" in terms of the contexts in which the whole question makes sense allows us to see that jurisprudence is about boundary disputes concerning law-that is about what should count as lawand about responses to attacks on the value of law. Concern for these two issues constitutes the boundary challenge perspective. The boundary challenge perspective not only allows us fully to escape essentialism about law, it also provides us with a better understanding of the relationship between the activity of discussing what should count as law and the activity of specifying the law in particular circumstances. The boundary challenge perspective provides a better explanation of that relationship than positivism or natural law. It allows discussion of change and resistance to change without significantly weakening the distinction between "is" and "ought". It might also form the basis for further historical and sociological studies of law. KEY WORDS: autopoiesis, boundary challenge perspective, concepts of law, feminism, law and economics, legal positivism and natural law, political sociology of law, republicanism vs liberalism I am very grateful to Nigel Simmonds, Matt Kramer and the anonymous referees of Res Publica for their helpful comments on previous versions of this piece. They saved me from many errors, both of substance and of style. For the errors that remain, and for those that I have introduced in response to their criticisms, I am, of course, solely responsible.

Ratio Juris, 2006

In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking.

This article forms part of a book symposium on Natural Law and the Nature of Law published in the Australasian Journal of Legal Philosophy. It introduces the central themes and arguments of the book and reflects on the continuing relevance of natural law ideas today.