Legal Positivism discusses the autonomy of law in three directions: in respect of social and psychological facts; non-legal normativity, particularly morals; and other normative legal orders. In Kelsen’s Pure Theory, all three aspects are explicitly present. In the Hartian camp, the main emphasis is on the relationship between law and morals; especially on what has come to be called the separability thesis, which has sometimes been elevated to the core idea of Legal Positivism. Hartians have never been equally strict about the distinction between law and society; the Kelsenian dichotomy of Is and Ought has even been explicitly disclaimed. In the preface to The Concept of Law, Hart famously characterised his project as an exercise in descriptive sociology and, in the same vein, some contemporary Hartian positivists even declare the social-facts or social-sources thesis, instead of separability, the central tenet of Legal Positivism. The same theorists are wont to see an important difference from Dworkin in the social-facts thesis. Yet what the social-facts thesis actually boils down to is the claim of the rule of recognition as a social rule or a convention: legal validity ultimately depends on and is defined by a social rule; hence, the edifice of law rests on social facts. The way Hartians specify the rule of recognition and, for instance, demarcate legal validity from efficacy is remarkably similar to Kelsen’s treatment of the Grundnorm. In line with the Grundnorm, the rule of recognition, although itself breaking the separation of Is and Ought, produces autonomy in all three dimensions: in respect not only of morals and other legal orders but also of society and social facts. And because legal positivists derive the separability thesis from the rule of recognition as a social rule, the difference between the separability and social-facts theses as characterisations of the core of Legal Positivism vanishes.

In accordance with its dichotomous ontological premises, mainstream positivism of the preceding century was not interested in conceptualising the realisation of law. It considered, though, compliance of social actors with law in general and individual norms in particular necessary for law’s efficacy and as such a precondition for legal validity. As a rule, its interest did not extend to exploring the process of realisation; that is, the transition from abstract norms to norm-conforming behaviour. Of course, exceptions exist. Rights, duties, and legal relationships are major steps in the transition. In the wake of Jeremy Bentham, John Austin and Wesley Newcomb Hohfeld, analytically minded positivists have continued elaborating these concepts. Yet analysis has focused on the logical relations between the concepts so that, typically, rights, duties, and legal relationships have been detached from their social context. In this respect, too, Kelsen held an extremist position. For him, ‘right’, ‘duty’ and ‘legal relationship’ connoted relationships between legal norms. In the realist camp, especially in Scandinavian Realism, the analytical approach has also enjoyed popularity. However, Scandinavian realists’ realism was largely confined to defining the basic concepts with reference to predictable reactions from the side of authorities, thus allegedly satisfying empiricist criteria whose fulfilment the scientific character of legal scholarship was seen to require.

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.

What does privatization mean in the context of domains that have long been considered quintessentially private? Family, marriage, sexuality: each of these spheres of intimate life has been cast as private. Feminist and sexuality scholars have sought to reveal the artificiality of the public/private distinction and the many ways that intimate life is deeply political. Family, marriage and sexuality are spheres of life constituted through cultural, political and legal discourses. Each is deeply implicated in governance, past and present. Yet, the ideology of the private is enduring, and the idea of privatizing the private tautological. Indeed, the intimate sphere of family and sexuality has not featured prominently in the privatization literature, which has tended to focus on reconfiguring the relationship between the market and the state.

Unity of law is a two-level issue. It can – and should – be examined at the level of both particular instances of law and the plurality of those instances, that is, as internal and inter-instance unity. These levels interact, so that, for example, insights into the impact of the post-national condition on the internal unity of state legal regimes are relevant for a discussion of inter-instance unity too. The fracturing of the formal unity supposedly guaranteed by a Kelsenian or Hartian Master Rule also affects the way the unity of the plurality of law can be conceived of.

Legal normativity cannot – pace Kelsen – be examined without reference to sociality, that is, the social practices where law is realised and (re)produced. Conversely, exploring law’s sociality requires attention to normativity. An analysis of sociolegal practices must heed the contribution of legal normativity to the internal normativity of those practices: to the patterning of the social actions making up the practice and to defining its task and role structure. Neither can legal relationships, legal-institutional facts or concrete orders of behaviour ‒ all playing a vital role in law’s realisation ‒ be grasped without alluding to the legal norms that provide legal relationships with legal form; which accomplish the function of constitutive rules in creating legal-institutional facts; or which are specified into rights and duties of particular individuals in concrete orders of behaviour. Furthermore, second-order legal practices would not be possible without the constitutive and facilitating contribution of legal culture, operating primarily through the Vorverständnis of legal professionals. Law also provides the framework for legal discourse among legal professionals occupying diverse roles within diverse legal practices. Law, comprising even sub-surface, legal-cultural, layers, defines the participants of the discourse, as well as the relative weight of their interventions.

Few legal scholars would deny the influence of legal culture on legal interpretation and argumentation, although agreement on what legal culture consists of could be difficult to attain. One of the central tenets of this essay is that legal culture not only impacts legal interpretation and reasoning but forms an integral part of law. The normative legal order is not made up merely of surface-level norms produced by formal legal speech acts; it also includes sub-surface, legal-cultural layers. This claim is likely to raise severe opposition, in particular in the legal positivist camp. How do I warrant my claim?

Some things should not be for sale. One’s body or one’s children, to take the most glaring examples. But, arguably, more trivial things like the family heirloom or a citizen’s vote should also not be bought and sold. Theorists differ both about the membership of this class (what things should not be for sale) and about the grounds for membership in it (why they should not be bought and sold). Yet there is virtual unanimity that it is not an empty set. Human beings, if nothing else, should not be sold on the market, not even by themselves (selling oneself into slavery).

In recent years, an expansive literature has been produced analyzing the moral limits of markets, focusing on the question just presented: what kinds of goods should not be bought and sold on the market.

‘Constitution’ in its present sense belongs to the history of modern law and polity, with the American and French revolutionary constitutions from the end of the eighteenth century as the decisive watersheds. The sedimentation of the new meaning of ‘constitution’ took time. After Russia had gained possession of Finland from Sweden, Alexander I received the estates in Borgå in 1809 and solemnly pledged to preserve the ‘constitution’ of the land. The Russian and Finnish sides could never come to an agreement on what Alexander meant by ‘constitution’.

What, if anything, is lost when we privatize criminal punishment? The literature responding to this question is already vast and growing. But it would be a mistake to understand it as forming a single, coherent line of inquiry. Writers on this topic have raised concerns of at least three different sorts. Concerns of the first sort are specific to a particular legal order, suggesting that some legal doctrine in that jurisdiction prohibits the privatization of one sort of criminal punishment or another. In the United States, for instance, much of the literature in this vein has focused on specific constitutional and administrative law doctrines, as well as specific legislative obstacles to the privatization of criminal punishment. There have been similar scholarly movements in many other countries, as well.

There is a second literature on privatization that has more universal ambitions. These writings argue that if we privatize criminal punishment, we will necessarily run afoul of many of our broader normative commitments.

The financial information about a financial entity is asymmetrically distributed among those who contract with it. Whether the entity is a publicly traded corporation or a nonprofit state hospital, those parties of the inner circle of the entity, for example the entity’s management, possess information about the financial stability of the entity and its available resources, whereas those of the outside circle, who in many cases finance the entity or cohesively depend on its services, for example the entity’s patients/customers and workers/suppliers, lack information about its commitments, available resources or the use thereof.

The involvement of private entities in performing government functions, whether publicly financed or removed from public responsibility, is hardly new. Accelerated with support from Prime Minister Margaret Thatcher in Great Britain and US President Ronald Reagan, the use of private companies is generally advanced in terms of efficiency and cost savings. Special issues are posed when governments outsource duties closely related to core governmental functions, such as criminal justice (including policing, prosecuting, and punishing) and national defense (including intelligence gathering and analysis, interrogation of enemies and detainees, and war fighting); the absence of robust private markets and the departure from public values in these domains make reliance on private for-profit providers especially problematic. Also, direct and indirect involvement of private interests could in fact distort public decisions about whether and how to conduct armed hostilities, and how much to incarcerate people for infractions of laws.

This chapter deals with civilian private security in relation to public police. It first elaborates, in Section 13.2, on the specific legal norms that govern public and private security personnel and shows that the rise of private security is not the outcome of privatization in the usual sense of the term. It proceeds, in Section 13.3, to present some facts on private security, a large and fast-growing industry in many countries. Sections 13.4 and 13.5 deal with the sources of the demand for private security and its impact on security. We show that this impact is conceptually different from that of public police in a constitutional rule of law state. Private security aims at achieving efficient levels of losses from crime. Public police aim at an equal protection of citizens against crimes. The different objectives have different consequences for security and for the wealth distribution of citizens.

The American administrative state has, of late, been under siege, attacked on two fronts. The war on one front is somewhat parochial – a pitched battle over US constitutional law. It is waged largely by conservative movement lawyers who view the modern administrative state as an affront to the constitutional separation of powers.

The war on the other front has much greater transnational relevance. This second fight pits defenders of modern bureaucratic governance against those who see public administration as hopelessly inefficient, rigid, and unaccountable. This latter group of critics present themselves as more or less comfortable with the constitutionality of the administrative state – and thus claim to raise only technocratic objections.