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Books > Law > Jurisprudence & general issues > Jurisprudence & philosophy of law
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Legality's Borders - An Essay in General Jurisprudence (Hardcover)
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Legality's Borders - An Essay in General Jurisprudence (Hardcover)
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English-speaking jurisprudence of the last 100 years has devoted
considerable attention to questions of identity and continuity.
H.L.A. Hart, Joseph Raz, and many others have sought means to
identify and distinguish legal from non-legal social situations,
and to explain the enduring legality of those typically dynamic
social situations. Focus on characterization of legality associated
with the state, the most prominent legal phenomena available, has
led to an analytical approach dominated by the idea of legal system
and analysis of its constituent norms. Yet as far back as Hart's
1961 encounter with international law, the system-focussed approach
to legality has experienced moments of self-doubt. From
international law to the new legal order of the European Union, to
shared governance and overlapping jurisdiction in transboundary
areas, what at least appear to be instances of legality are at best
weakly explained by approaches which presume the centrality of
legal system as the mark and measure of social situations fully
worthy of the title of legality. What next, as phenomena threaten
to outstrip theory? Legality's Borders: An Essay in General
Jurisprudence explains the rudiments of an inter-institutional
theory of law, a theory which finds legality in the interaction
between legal institutions, whose legality we characterise in terms
of the kinds of norms they use rather than their content or
system-membership. Prominent forms of legality such as the
law-state and international law are then explained as particular
forms of complex agglomeration of legal institutions, varying in
form and complexity rather than sheer legality. This approach
enables a fundamental shift in approach to the problems of identity
and continuity of characteristically legal situations in social
life: once legality is decoupled from legal system, the patterns of
intense mutual reference amongst the legal institutions of the
law-state can be seen as one justifiably prominent form of legality
amongst others including overlapping forms of legality such as the
European Union. Identity over time, on this view, is less a fixed
set of characteristics than a history of intense mutual interaction
of legal institutions, comparable against similar other
agglomerations of legal institutions.
General
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