Of Claiming the Law: The Distress of the Wanderer

Theoretical Inquiries in Law, 2009

The argument of this Article is based on positivist postulates (principally from Hart) defining law as the union of primary rules (social norms) and secondary rules (of recognition, change and adjudication). Taking the presence of rules of change to be decisive for the appearance of legal orders, the author first looks for their origins in the Western world. Romans were the first, in the Western world, to develop a legal system with a clear rule of change, the possibility of a new statute abrogating an old one. This Western concept of law has been exported by Western colonialism to America, Asia (especially India), and Africa, transforming social (and customary) rules into laws thanks to the use of a Roman frame. While Jewish, Chinese and Islamic legal systems also fit this definition, their rules of change were not identical to the Roman ones (because of their stress on interpretation rather than direct change). However, these other systems were not as successful as Roman law, which was linked historically with imperialism and colonialism.

Some societies seem lushly provided with explicit rules, others seem almost consciously to avoid them, and still others never found a use for them. There must always be rules of some kind, if only of language-use. Explicit rules, however, are of a different status. Usually prescriptive rules of the kind spelt out in law are analysed for what they do—for their practical ‘force’ or ‘weight’—but it seems worth asking what they say, in other words viewing them in terms of classification. Their form is also of interest. If any rule might, as Frederick Schauer contends, be rephrased as a conditional sentence, most laws have been phrased that way. The chapter discusses early European codes and pre-modern Yemen, then sketches cases of learned or complex legalism, before asking what the attraction of explicit rules might be. In comparative perspective, the ‘central case’ of latter-day municipal law looks decidedly odd.

Kritike: An Online Journal of Philosophy, 2021

In 1961, H.L.A. Hart published his seminal work The Concept of Law, introducing what eventually became the most dominant, influential, but controversial, theory of law in the twentieth century. Not only did it revolutionize the way philosophy of law was done at the time, but it continues to raise fresh problems that puzzle even linguistic, moral, and political philosophers to this very day. The objective of this paper is twofold. The first is to survey four philosophical topics that were explored in The Concept of Law and the contemporary debates that have followed in its wake, and the second is to argue that while some of Hart's ideas have successfully withstood the tests of time and later critics, other ideas have not been as successful, but not without illuminating the path that legal philosophers must traverse in the twenty-first century. The paper has been divided into four parts. Part I ("Law and Method") shall explain the importance of the "internal point-of-view" to ongoing debates between descriptive and normative jurisprudence. Part II ("Law and Morality") shall explain how the rule of recognition revived the natural law/legal positivism debate, the result of which gave rise to the inclusive/exclusive legal positivism debate in turn. Part III ("Law and Language") shall discuss how Hart's insight into the "open texture" of language has created new problems about legal interpretation. Part IV ("Law and Obligation") shall discuss Hart's "practice theory of obligation" and how it has led modern writers to justify the duty to obey the law.

Michigan Law Review, 1996

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,

Law: Natural, Artificial and Unnatural , 2022

There are numerous felt needs, emotional, psychological, economic, equitable treatment in various fora or spheres of common (meaning interpersonal and collective spaces) life, to name the most obvious, that systems of “justice” and consequently of “law” are invoked to address. Demands on such systems, assuming these demands are not intentionally malafide or exploitative or abusive, range from that of vengeance and retribution to restoration, restitution and rehabilitation. The systems upon which such demands are made, with vastly varying degrees of expectation of fulfilment, and perhaps an even vaster array of protocols required to invoke judgement or resolution of some sort, likewise range from supernatural, moral and religious structures and apparatus extant to Global or International Instruments of Conventions and Treaties, with their own apparatus and structures all the way through “national” or “sub-national” systems, to “customary” or “traditional” practice, many of these last as diverse, contradictory, complex, even disguised as extrusions of a larger protocol, such as the “larger” systems of justice or even merely of ordinary, everyday life, the “normalcy” of mundane social interactions and transactions within which they are embedded. All these are of course, constantly mutating whether primarily in response to each other or to experienced situations and few, if any, provide unalloyed satisfaction. Certainly not for any appreciable duration. Rarely, if ever, is there a Permanent Resolution. Indeed, the array of caveats and exceptional or innovative resolutions, morphing into new legal trajectories of society have resulted in most formal bodies of law becoming unwieldy, fragmented, esoteric and inaccessible

Law and Philosophy, 1986

This essay argues that to understand much that is most central to and characteristic of the nature and behaviour of law, one needs to supplement the 'time-free' conceptual staples of modern jurisprudence with an understanding of the nature and behaviour of traditions in social life. The article is concerned with three elements of such an understanding. First, it suggests that traditionality is to be found in almost all legal systems, not as a peripheral but as a central feature of them. Second, it questions the post-Enlightenment antinomy between tradition and change. Third, it argues that in at least two important senses of 'tradition', the traditionality of law is inescapable. Legal philosophers disagree about many things, few more than the nature of law. Notwithstanding these differences, there are significant family resemblances among contemporary approaches to this question. I am struck by three. First, it is common for law to be conceived as a species of some other more pervasive social phenomenon: commands, norms, rules, rules-and-principles, rules, principles and policies, and so on. Though this runs * This article is part of a project on law and tradition, research for which has been aided by a grant from the Australian Research Grants Committee. It was written while I was a visitor at the Centre for the Study of Law and Society, University of California, Berkeley, and revised while I visited the Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh. I am grateful to the members of both centres for generously providing me with extremely congenial and stimulating conditions for work. Versions of the paper were presented to seminars at these centres, to the 12th World Congress on Philosophy of Law and Social Philosophy, held in Athens in August, 1985, and to seminars at the universities of Warsaw, Lodz and Glasgow. I am grateful to participants in these seminars, especially Neil MacCormick, Philip Selznick, Wojciech Lamentowicz, Daniel Sinclair and Jerzy Szacki, and' to Edward Shils for useful discussion and criticism.

2015

Ratio Juris, 1991