Legalitys Borders: An Essay in General Jurisprudence

Hardcover | March 24, 2010

byKeith C. Culver, Michael Giudice

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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 legalityof 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 1961encounter 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 oflegality 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 explainsthe 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-stateand 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 legalsituations 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 EuropeanUnion. 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.

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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 legalityof those typically dynamic social situations...

Keith C. Culver is Professor and International Chair in Generating Eco-Innovation, in the UniverSud Paris. From 1997 to 2009 he taught at the University of New Brunswick, Fredericton, where he was director of the Centre for Social Innovation Research. He holds degrees from the University of Victoria (BA Hons), McMaster University (MA)...
Format:HardcoverDimensions:224 pages, 8.1 × 5.8 × 0.9 inPublished:March 24, 2010Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0195370759

ISBN - 13:9780195370751

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Table of Contents

1. Introduction1.1. Imbalance in Analytical Legal Theory's Approach to Prima Facie Legal Phenomena1.2. New Phenomena1.2.1. Intra-State Legality1.2.2. Trans-State Legality1.2.3. Supra-State Legality1.2.4. Super-State Legality: Claims to Universality in Peremptory Jus Cogens Norms1.3. State-Based Legal Theory1.4. Re-Balancing After Imbalance: An Incremental Addition to Analytical Legal Theory2. Legal Officials, the Rule of Recognition, and International Law2.1. Structure and Function of the Rule of Recognition2.2. Explaining Officials' Contribution to the Rule of Recognition: Facing Circularity and Indeterminacy2.2.1. Officials by Office and Attitude2.2.2. Speculative Social Anthropological Accounts2.3. Hierarchy in the Rule of Recognition2.4. The Rule of Recognition and International Law2.4.1. Not a System but a Set2.4.2. International Rules of Change and Adjudication2.4.3. International Legal Officials?2.4.4. Kelsen's Account of International Law3. The Hierarchical View of Legal System and Non-State Legality3.1. Raz's Structural Account of Legality3.2. Functional Assessment of Raz's Account of Legality3.2.1. Indeterminacy at the Borders3.2.2. Parochialism3.3. State-Centred Hierarchy3.4. Non-State Legality3.4.1. Hierarchy and the European Union3.4.2. Trans-State Legality Revisited4. Meta-Theoretical-Evaluative Motivations4.1.1 The Ordinary Person's Perspective and a Contingent Concept4.1.2. Bootstrapping in Analytical Legal Theory4. 2. Recent Approaches to the Problem of Perspective4.2.1. System and Set4.2.2. Network Theory4.2.3. International Relations Theory4. 3. Renewed Perspective5. An Inter-Institutional Theory5.1. Elements of Legality5.1.1. Content-Independent Reasons for Action5.1.2. Legal Normative Powers5.1.3. Institutions of Law5.1.4. Legal Institutions5.1.5. Mutual Reference and Intensity5.2. The Systemic Law-State5.2.1. Minimum Content of Natural Law5.2.2. Comprehensiveness, Supremacy, and Openness5.2.3. System5.3. The Narrative Concept of Law and the Problems of Circularity and Indeterminacy6. An Inter-Institutional Account of Non-State Legality6.1. Meta-Theory Revisited: Between Legal Pluralism and Geo-Centric Statism6.2. Meeting the Explanatory Challenge: Bringing Elements of Legality to Bear on Explanatory Problems Beyond the Systemic Law-State6.2.1. Intra-State Legality6.2.2. Trans-State Legality6.2.3. Supra-State Legality6.2.4. Super-State Legality7. Fresh Problems7.1. Pathologies of Legality7.2. Novel Technologies and their Implications for Conceptions of Legality7.3. Re-balance after Imbalance: the Consequences of Re-socializing a Descriptive-Explanatory View of LawIndex