Chapter 1 - The Concept of Law

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.

2014

Foreword [1994] 1–4 LAW AS PRACTICE QUELQUES QUESTIONS MÉTHODOLOGIQUES DE LA FORMATION DES CONCEPTS EN SCIENCES JURIDIQUES [1970] 7–33: 1. Introduction 7 / 2. La particularité de l’objet des sciences juridiques 8 / 3. La particularité de la méthodologie des sciences juridiques 10 / 4. La particularité de la formation des concepts en sciences juridiques: Quelques problèmes 15 [4.1. Le concept du droit 16 / 4.2. Le concept dogmatique du contenu du droit 21 / 4.3. Le concept de la normativité juridique 23 / 4.4. Le concept des lacunes en droit 24] / 5. La particularité de la formation des concepts en sciencesjuridiques: Quelques conclusions 26 / 6. La formation des concepts en sciences juridiques et la réalité: Conclusion finale 29 / 7. Annexe: Des bases d’une classification possible des définitions en sciences juridiques 31 // GELTUNG DES RECHTS – WIRKSAMKEIT DES RECHTS [1978] 35–42 // MACROSOCIOLOGICAL THEORIES OF LAW: A SURVEY AND APPRAISAL [1983] 43–76: I. Issues of the Macrosociological Theories of Law 46 / II. The Role of the Macrosociological Theories in the Social Science Foundation of Legal Thinking 63 // REFLECTIONS ON LAW AND ITS INNER MORALITY [1984] 77–89: 1. Law and Morals As Two Systems of Norms, and the Inner Morality of Law 77 / 2. Law As A Value Bearer and As A Mere External Indicator 78 / 3. The Inner and External Moral Credit of Legislator 83 / 4. The Inner Morality of Law 86 // THE LAW AND ITS LIMITS [1985] 91–96 LAW AS TECHNIQUE DOMAINE »EXTERNE« ET DOMAINE »INTERNE« EN DROIT [1983] 99–117: 1. Le »juridique« et le »non-juridique« 99 / 2. Domaine »externe« et domaine »interne« en tant que groupes de phénomènes 104 / 3. Domaine »externe« et domaine »interne« en tant que points de références 112 / 4. Conclusion 116 // DIE MINISTERIELLE BEGRÜNDUNG IN RECHTSPHILOSOPHISCHER SICHT [1977] 119–139: I. Die prinzipiellen und geschichtlichen Grundlagen der Herausforderung der ministeriellen Begründungen 120 / II. Die möglichen und erwünschten Funktionen der ministeriellen Begründung im sozialistischen Rechts 128 / III. Die ministerielle Begründung und ihr Wert in der Auslegung derRechtsnormen 132 // THE PREAMBLE: A QUESTION OF JURISPRUDENCE [1970] 141–167: I. The Notion of the Preamble 142 / II. Content and Functions of the Preambles 146 / III. Normativity of the Preamble Content 150 / IV. The Problem of the Justifiability of Preamble-drafting in the Light of Socialist Legal Policy 161 // PRESUMPTION AND FICTION: MEANS OF LEGAL TECHNIQUE [1988] 169–185: I. Presumption 169 [1. In the Judicial Process of Establishing the Facts: praesumptio homini vel facti 170 / 2. In the Normative Definition of the Facts: praesumptio juris tantum 170 / 3. In the Normative Definition of the Facts: praesumptio juris et de jure 171 / 4. In a Possible Theoretical Reconstruction 171] On »Presumption« 172 [1. Function 172 / 2. Presumption and Fiction 173 / 3. Irrelevancy of Epistemological Foundation 173 / 4. The Technique of Presumption 174] II. Fiction 175 [1. In the Linguistic Formation of Legal Norms 175 / 2. In the Judicial Application of Legal Norms 175 / 3. In the Doctrinal Processing of Legal Norms 176 / 4. In the Theoretical Reconstruction of Legal Norms 176 / 5. Approaches to and Understandings of Fiction 177] On »Fiction« 178 [1. History and Understandings 178 / 2. Classification 180 / 3. Law as Fiction 181 / 4. Presumption and Fiction 182] // LEGAL TECHNIQUE [1988] 187–198: I. Legal Technique 187 [1. In the Large Sense 1987/ 2. In Legal Practice 189 / 3. In Legal Science 189 / 4. As a Special Technique 190] II. On Legal Technique [1. Definition and Function 190 / 2. Legal Technique and Legal Cultures 192 / 3. Postulates of Legal Technique in the Cultures of Modem Formal Law 195 {a) The Principle of Consequentiality 195 / b) The Principle of Coherency 195 / c) The Principle of Conceptual Economy 196 / d) The Principle of Non-redundancy 196}] LAW AS LOGIC MODERNE STAATLICHKEIT UND MODERNES FORMALES RECHT [1982] 201–207: 1. Die Klassifizierung als logisches und als gesellschaftswissenschaftliches Verfahren 202 / 2. Typologie der staatlichen und rechtlichen Erscheinungen 202 / 3. Der moderne Staat und das moderne formale Recht: Frage der Zusammenhänge und Entwicklungsalternativen 204 // HETEROGENEITY AND VALIDITY OF LAW: OUTLINES OF AN ONTOLOGICAL RECONSTRUCTION [1986] 209–218 // LEIBNIZ UND DIE FRAGE DER RECHTLICHEN SYSTEMBILDUNG [1973] 219–232: 1. Aktualität von Leibniz 219 / 2. Der Gedanke der universalen mathematischen Methode 221 / 3. Die logischen Konzeption der Rechtswissenschaft 224 / 4. Die geometrische Vision der rechtlichen Systembildung 227 / 5. Das Scheitern der Leibnizschen Idee und seine Lehre 230 // LAW AND ITS APPROACH AS A SYSTEM [1975] 233–255: 1. The Logical Structure of Law as a Historical Product 233 / 2. Tendencies of Formal Rationalization in Legal Development 234 / 3. Historical Development of the Approach to Law as a System 239 / 4. Present State of the Attempts at a Logical Reconstruction of Law and Legal Reasoning 243 / 5. Question of the Axiomatic Conception of Law 248 / 6. Heuristic Value of the Approach to Law as a System 250 // LOGIC OF LAW AND JUDICIAL ACTIVITY: A GAP BETWEEN IDEALS, REALITY AND FUTURE PERSPECTIVES [1982] 258–288: 1. Historical Background 259 / 2. Ideals 264 / 3. Reality 270 / 4. Future Perspectives 277 // KELSEN’S PURE THEORY OF LAW – YESTERDAY, TODAY AND TOMORROW [ms] 289–293, THE NATURE OF THE JUDICIAL APPLICATION OF NORMS: SCIENCE- AND LANGUAGE-PHILOSOPHICAL CONSIDERATIONS [ms] 295–314: 1. Presuppositions 295 / 2. The Context of the Application of Norms 300 [2.1 Actualisation in Concrete Meaning 300 / 2.2 Linguistic Undefinedness 304 / 2.3 Lack of Logical Consequence in the Normative Sphere 308] LAW AS EXPERIENCE ON THE SOCIALLY DETERMINED NATURE OF LEGAL REASONING [1971] 317–374: 1. Interrelation of the Creation and Application of Law 317 / 2. The Socially Determined Nature of the Application of Law 332 / 3. The Socially Determined Nature of Legal Reasoning 337 / 4. The Question of Perspectives 363 // TOWARDS THE ONTOLOGICAL FOUNDATION OF LAW: SOME THESES ON THE BASIS OF LUKÁCS’ ONTOLOGY [1983] 375–390, IS LAW A SYSTEM OF ENACTMENTS? [1984] 391–398: 1. Working Models of Law 391 / 2. Senses of ContExtuality in Law 393 / 3. Jurisprudential Approach and Socio-ontological Approach 394 / 4. Conclusions 396 [4.1. Law as Historical Continuum 396 / 4.2.Law as Open System 396 / 4.3. / Law as Complex Phenomenon with Alternative Strategy 396 / 4.4. Law as an Irreversible Process 397 / 4.5. The Genuinely Societal Character of Law 397] // EUROPEAN INTEGRATION AND THE UNIQUENESS OF NATIONAL LEGAL CULTURES [1992] 399–411: 1. The Philosophical Framework 399 / 2. Law as Tradition 403 / 3. European Integration and the Preservation of the Uniqueness of National Legal Orders 407 // INSTITUTIONS AS SYSTEMS: NOTES ON THE CLOSED SETS, OPEN VISTAS OF DEVELOPMENT, AND TRANSCENDENCY OF INSTITUTIONS AND THEIR CONCEPTUAL REPRESENTATIONS [1991] 413–424: I. A Logic of Systems 413 / II. Ideal Types and Historically Concrete Manifestations 416 / III. Ideal Type As A Normative Ideology 418 / IV.Objectivity and Contingency of Systems 420 / V. Limits and Bonds, ConsEquEntiality and Practicability of a System 423 LAW AS HISTORY FROM LEGAL CUSTOMS TO LEGAL FOLKWAYS [1981] 427–436, ANTHROPOLOGICAL JURISPRUDENCE? LEOPOLD POSPÍŠIL AND THE COMPARATIVE STUDY OF LEGAL CULTURES [1985] 437–457: 1. Rule, Fact and Principle in the Concept of Law 438 [a) Abstract rules 439 / b) Abstracts from actual behaviour 439 / c) Principles Upheld by Legal Decisions 440] 2. Attributes of Law 445 [a) Authority 446 / b) Intention of Universal Application 446 / c) Obligatio 447 / d) Sanction 447] 3. Law and its Social Functional Definition 450 [(1) Law is a Global Phenomenon 451 / (2) Law is a Phenomenon Able to Settle Conflicts of Interests 451 / 3) Law is a Phenomenon Prevailing as the Supreme Controlling Factor 452] 4. Conclusion 454 // LAW AS A SOCIAL ISSUE [1985] 459–475: I. The Social Prestige of Law 459 / II. The Social Nature of Law 463 / III. Law and Language in the Service of Social Mediation 466 (1. Passive Mediation and Active Intervention 468 / 2. The Dilemma of the Mediation of Values 472) // LAW AS HISTORY? [1986] 477–484: 1. Understandings of the Term »Law« 477 / 2. Law and History 478 / 3. Law as History 481 // RECHTSKULTUR – DENKKULTUR: EINFÜHRUNG ZUM THEMA [1988] 485–489 Curriculum Vitae 491 / Bibliography 493 // Index 515 / Index of Normative Materials 523 / Index of Names 525

This chapter shows that the present circumstances of interlegality are better understood as the simultaneous surfacing of diverse structures, patterns, or ‘formats’ of legality whose birth is originally placed in different historical times. Law as Esprit, Jus Gentium, Medieval law, Global Administrative law are chosen as relevant to explaining resilient features encountered in the present transformations of contemporary law. Each shall be given a dedicated, albeit brief, overview. We are living in a neo-medieval concurrency of legalities, further complicated by the different incarnations of ‘Esprit’, especially through the achievement of the State, and by the overwhelming appearance of the deracinated global rule-making; we keep relying on some law of all the peoples that should make sense of disagreements and suggest an albeit limited amount of shared principles or institutions (the jus gentium type). The increasing value of naming such phenomena as interlegality (not just ‘legality’) lies in the realization that we are to live in each and all of such different formats at the same time, and that the continuous reshuffling of their concurrent or competing rationales demands a revision of our understanding of law, especially in its ‘systemic’ frames, an understanding that at best is attuned to one of those formats, but unfit to make sense of their enmeshing and to cope with it.

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ON PHILOSOPHISING AND THEORISING IN LAW LEGAL PHILOSOPHY, LEGAL THEORY – AND THE FUTURE OF THEORETICAL LEGAL THOUGHT [2006] 11–26: 1. Questioning and Knowing 11 / 2. Law and Philosophy [2.1. Law and Philosophical Wisdom 12 / 2.2. Appearances of Modern Formal Law 14 / 2.3. Differentiation in Complexity 16] 3. Conclusions [3.1. Legal Philosophising Reduced to Discourse-reconstruction 17 / 3.2. The Query for Natural Law Unresolved 19 / 3.3. Positive Law – without Legal Positivism? 23] 4. On What the Stake is 26 // LEGAL ONTOLOGY [1999] 27–30 // LAW AND HISTORY: ON THE HISTORICAL APPROACH TO LAW [1999] 31–35 // LAW AS HISTORY? [1986] 36–47: 1. Understandings of the Term ‘Law’ 36 / 2. Law and History [2.1. Law as Instrument 38 / 2.2. Law as Culture42] 3. Law as History 43 // VALIDITY [1999] 48–61: 1. Notions of Validity 48 / 2. Understandings of Validity 49 / 3. Statism and Dynamism of Law 54 / 4. Validity and the Realm outside the Law 55 / 5. Dissolution of the Notion of Validity? 58 // EX POST FACTO LEGISLATION [1999] 62–65 ON CONCEPTUALISING BY LOGIFYING THE LAW RULE AND/OR NORM: ON THE CONCEPTUALISABILITY AND LOGIFIABILITY OF LAW [2003] 69–78: 1. Rule/Norm 69 / 2. Origins and Contexture 70 / 3. With Varied Denotations 73 / 4. Norms Exclusively in Civil Law Rechtsdogmatik 74 / 5. Ambivalence in Language Use 77 // LEGAL LOGIC AND THE INTERNAL CONTRADICTION OF LAW [2004] 79–86: 1. Legal Logic 79 / 2. The Internal Contradiction of Law 83 // THE QUEST FOR FORMALISM IN LAW: IDEALS OF SYSTEMICITY AND AXIOMATISABILITY BETWEEN UTOPIANISM AND HEURISTIC ASSERTION [1973] 87–123: I. Systemicity [1. Form and Content {1.1. In Arts and Law 88 / 1.2. In German Philosophy 90} 2. Systemicity and Axiomatic Approach {2.1. The Idea of System and the Law-codes 95 / 2.2. Early Modern Times 97 / 2.3. Recent Times 100 / 2.4. Drawbacks in Philosophy104}] II. Axiomatism [3. The Want of Axiomatisability {3.1. From Deductivity to Axiomatisation 105 / 3.2. Futile Approximations at the Most 106 / 3.3. Lack of Deductivity in the Law’s Deep Structure112} 4. The Heuristic Value of an Ideal {4.1. Cases of N/A 113 / 4.2. Cases of Correlation 114} 5. Conclusion: Ideals and the Dialectics of Substantivity 122 // LAW AND ITS DOCTRINAL STUDY (ON LEGAL DOGMATICS) [2006] 124–175: I. The Doctrinal Study of Law [1. Legal Dogmatics in a Science-theoretical Perspective 124 / 2. The Process of Advancing Conceptualisation 128 / 3. Ideality versus Practicality in Legal Systemicity 133 / 4. Conceptualisation, Systematisation, Dogmatisation 135 / 5. Rules and Principles in Law 140 / 6. Correlation between Legal Cultures and Legal Theories 141 / 7. Theoretical and Socio-philosophical Perspectives143] II. Inquiry into the Nature of Doctrinal Studies in Law [a) Legal Dogmatics 147 / b) Non-conceptualised Traditions in Law 149 / c) The Stand of Law and of its Dogmatics 154] III. ‘Law’, ‘Science of Law’, ‘Science’ 157 [1. Critical Positions {a) Ad Mátyás Bódig ‘Doctrinal Study of Law and Jurisprudence’ 158 / b) Ad Tamás Győrfy ‘The Conceptual System of Law and the Dogmatics of Motivations’ 169 / c) Ad Péter Cserne ‘The Doctrinal Study of Law versus Policy’ 172} 2. In an Onto-epistemological Perspective 174] ON FORMS AND SUBSTANCE IN LAW STRUCTURES IN LEGAL SYSTEMS: ARTIFICIALITY, RELATIVITY, AND INTERDEPENDENCY OF STRUCTURING ELEMENTS IN A PRACTICAL (HERMENEUTICAL) CONTEXT [2001] 179–188: 1. Theoretical Background 179 / 2. Foundations of Structuring Challenged 181 / 3. Is there a Structure had? 184 / 4. Structuring as a Meta-construct 186 // GOALS AND MEANS IN LAW [2003] 189–201: 1. The Neutrality of Techniques 189 / 2. John Paul II [2.1. On Personhood, his Goods, and Law 191 / 2.2. On Person, Family, and Nation 196] 3. Artificiality and Antithetical Developments in Law 198 // LAW, ETHICS, ECONOMY: INDEPENDENT PATHS OR SHARED WAYS? [2004] 202–215: 1. “Cynical Acid” in the Foundation of Modern Formal Law 202 / 2. Example: Perspectives for Curing Malpractice in Law 205 / 3. Clash between Europeanism and Americanism 207 / 4. A Search for Reason and Systemicity 211 / 5. Ethics in Economy 213 // TOWARDS AN AUTONOMOUS LEGAL POLICY [1984] 216–221: 1. Relationship between Politics and Law 216 / 2. Legal Policy as a Mediator 218 / 3. Legal Scholarship, Legal Policy, and the Law on Law 219 / 4. Demand for an Autonomous Legal Policy 221 ON PROCESSES OF LAW THE JUDICIAL BLACK-BOX AND THE RULE OF LAW IN THE CONTEXT OF EUROPEAN UNIFICATION AND GLOBALISATION [2008] 225–242: I. Basic Issues in the Understanding of Law [1. Normativism and Legal Reality (Re)Construction 225 / 2. The Insufficiency of the Law Enacted 227 / 3. Duplicity of the Ontological Reconstruction of Judicial Process 227 / 4. The Law as Rule and the Law as Culture 231 / 5. Complementation by the Law’s Self-resolution in Post Modernism 232 / 6. The Metaphoric Nature of the Term ‘Law’ 234 / 7. Added Queries for the European and International Rule of Law 235] II. Questions to be Raised by Legal Arrangements Individually [8. Law as Subsistence and Law as Conventionalisation 236 / 9. Dilemmas of the Law Exhaustively Embodied by Texts, Thoroughly Conceptualised and Logified 237 / 10. Conservatio/novatio, ius strictum / ius aequum, generalisatio/exceptio, and the Moment of Decision 238] III. The Circle of Legal Arrangements to be Involved in the Investigation 240 [11. Cultures and Traditions to be Investigated 241] IV. Purpose and Impact of Investigations [12. The Tasks’ Horizons 241] DOCTRINE AND TECHNIQUE IN LAW [2002] 243–262: 1. Law, Legal Policy and Legal Technique 243 / 2. Formalism and Anti-formalism 245 / 3. Law as Potentiality and Actualisation 246 / 4. Example: Constitutional Adjudication 248 / 5. Legal Imaginability 251 / 6. Linguistic Mediation 254 / 7. Rechtsdogmatik 256 / 8. Clauses and Principles 258 / 9. With Safety Velvets Built in 260 // THEORY AND PRACTICE IN LAW: ON THE MAGICAL ROLE OF LEGAL TECHNIQUE [2006] 263–286: 1. Legal Formalism in a Practical Context 263 / 2. Magic in Law: Culture and Mediation 268 / 3. Legal Conceivability and its Limits 270 / 4. One Langugage, Unlabelled 272 / 5. Formalisation and De-formalisation: Principles as Safety Velves 276 / 6. Within Given Cultural Bounds 278 / 7. Kelsenian Re-interpretation: Law Getting Defined in Society 282 / 8. A Closed/Open Systemic Response 284 // LAW, UNDERSTANDING OF LAW, APPLICATION OF LAW (A SUMMARY OF DEVELOPMENTS IN THIRTY-SIX PARAGRAPHS) [2007] 287–303: I. Classical Heritage [1. Continental Law 287 / 2. Anglo-Saxon Law 291] II. Reality in our Approach to Law [1. As Professional Deontology 293 / 2. In its Theoretical Explanation 294] III. The Complexity of our Legal World Concept [1. The Complexity of Civil Law Mentality 301 / 2. The Complexity of Common Law Mentality 301] IV. With Humans in the Legal Machinery 302 APPENDIX: LEGAL THEORISING: AN UNRECOGNISED NEED FOR PRACTICING THE EUROPEAN LAW [2009] 307–354: 1. Introduction: Queries in European and Global Perspectives 307 / 2. Basic Issues [2.1. Human Refinement 310 / 2.2. The Westphalian Heritage of State Law and International Law 313 / 2.3. The Place of European Law 315] 3. Analogies [3.1. Solar System with Planets 319 / 3.2. Pre-modernity, Modernity, Post-modernity 320] 4. The Structural Pattern of the European Law [4.1. Legal Culture of the European Union 322 / 4.2. Implementing a Grand-System Functioning 328 / 4.3. With Legal Pluralism? 330] 5. Theoretical Model of the Operation of European Law [5.1. Multipolarity with Centripetality and Centrifugality 333 / 5.2. Order, Out of Chaos 336 / 5.3. Practical Continuum in a Standing Flux 342 / 5.4. Activated by Nations 347] 6. Conclusions for Practicing the European Law [6.1. The Ethos of the Tasks 349 / 6.2. For Reaching an Own Future, Thanks to Own Efforts 351] Index of Subjects 355 / Index of Normative Materials 362 / Index 364

2015

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.

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

Mainstream historians in recent decades have often treated formal categories and rules as something to be ‘used’ by individuals, as one might use a stick or stone, and the gains of an earlier legal history are often needlessly set aside. Anthropologists, meanwhile, have treated rules as analytic error and categories as an imposition by outside powers or by analysts, leaving a very thin notion of ‘practice’ as the stuff of social life. Philosophy of an older vintage, as well as the work of for instance Charles Taylor, provides fresh approaches when applied imaginatively to cases beyond the philosophers’ home-ground of modern Europe and North America. Not only are different kinds of rule and category open to examination, but the very notion of a rule can be explored more deeply. This volume approaches rules and categories as constitutive of action and hence of social life, but also as providing means of criticism and imagination. A general theoretical framework is derived from analytical philosophy, from Wittgenstein to his critics and beyond, and from recent legal thinkers such as Schauer and Waldron. Case-studies are presented from a broad range of periods and regions, from Amazonia via northern Chad, Tibet, and medieval Russia to the scholarly worlds of Roman law, Islam, and Classical India. As the third volume in the legalism series, this collection brings out common themes that run through the first two volumes, consolidating them in a framework that suggests a new approach to rule-bound systems.

Michigan Law Review, 1996