Prologue
Elusiveness
Published online by Cambridge University Press: 03 September 2021
Summary
This is a book about modern state law; about sociality, normativity, and plurality as its properties. Towards the end, it is also about what will come after modern state law. Legal Positivism, with Hans Kelsen and H. L. A. Hart as the undisputed Masters, is the dominant legal-theoretical (self-) description of modern state law. The main objective of this essay is to offer a legal-theoretical recapitulation of modern state law that avoids the fallacies of Legal Positivism. This calls for a relationist approach where law’s sociality is related to normativity, and normativity to sociality. I start with sociality (Part I) and then move on to normativity (Part II), but the reverse order might also have been possible and, indeed, equally warranted. Avoiding Legal Positivism’s fallacies also includes refraining from extrapolating from modern state law to law in general; replacing Legal Positivism’s conceptual universalism with sensitivity to the varieties of law; and acknowledging that law existed before modern state law, that it will exist after modern state law, and that other law exists alongside modern state law. Part III, dealing with plurality, plays a crucial role in exposing the false pretensions of universalising legal theory. Indigenous, religious, and transnational law demonstrate that the distinctions typical of modern state law are not universal properties of law, and that the language of modern state law is not a universal legal language but merely a vernacular.
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- Properties of LawModern Law and After, pp. 1 - 46Publisher: Cambridge University PressPrint publication year: 2021