Much of the preceding chapter's discussion of legal system has proceeded in a manner simultaneously internal and external to analytical legal theory. We have explored the interior of arguments regarding legal system, and at the same time we have questioned the purposes and reach of analytical legal theory, most specifically in questioning the value of the concept of legal system itself. In taking this approach we are attempting to be sensitive to the merits of specific arguments, while recognizing at the same time that they are embedded in a set of presumptions, purposes and enthusiasms which must also be taken into account. This approach is neither new to analytical legal theory, nor to reflection on the nature and state of an academic discipline. In questioning the value of the concept of legal system while investigating analytical accounts of the concept, we depart from within analytical legal theory, and in particular Joseph Raz's observation that legal system is a ‘conceptual tool’ useful to inquirers holding specific interests and purposes.
We find additional inspiration in a celebrated one-line characterization of the discipline of philosophy: Alfred North Whitehead's assertion that ‘The safest general characterization of the European philosophical tradition is that it consists of a series of footnotes to Plato’.Footnote 1 Amongst the lessons which might be drawn from this characterization, it is worth drawing out Whitehead's observations regarding the way philosophy is situated culturally and in relation to its own history. Whitehead's cautious limitation of his observation to the European philosophical tradition reminds readers that there is more to philosophy than what is dreamt of in European-derived views. Whitehead's wonderfully ambiguous description of the European tradition as a series of footnotes to Plato is also instructive. Contributors of footnotes may be supportive of the Platonic line, or they may be critical, but they are still commentators within the European tradition and oriented around the Platonic line. And while Whitehead leaves room for exceptions to the ‘safest general characterization’, even the most honourable exceptions are no great threat to the plausibility of the generalization.
Whitehead's quip of course demands to be read as a purposeful exaggeration, yet it can be inspiring to analytical legal theorists nonetheless. It is well worth being reminded that notwithstanding the typically broad and general, sometimes universal explanatory aspirations of analytical legal theory, its questions, examples and practitioners are largely drawn from a European tradition, and indeed, more narrowly, an Anglo-American tradition. A further reminder of the limitations of a particular tradition and dialogue may be gathered from Whitehead's pointing to Plato's vast influence. While it would be an exaggeration to say that the last fifty years of analytical legal theory addressing the nature of law is simply a footnote to Hart, the suggestion has probative value. Hart's influence as an expositor of the modern municipal legal system has framed much of the dialogue of the last half-century within analytical legal theory, and contributors to that dialogue have tended to raise fresh insights or questions in terms reflecting the history of that dialogue. The potential benefits and dangers of this situation for analytical legal theory are roughly analogous to the benefits and dangers facing any discipline whose cultural embeddedness and central dialogues parallel the situation Whitehead saw in philosophy. To the extent that the culture in which the dialogue is embedded is broadly representative of all cultures, the dialogue may range from surprisingly universal to undesirably parochial; and to the extent that a dialogue's framing is dominated by a particular approach and succession of critical extension and variation, the dialogue may penetrate its subject matter deeply and comprehensively. Alternatively, a dialogue might fall prey to a kind of narrow scholasticism whose adherents reach higher and high levels of precision in examination of questions of diminishing interest as changing circumstances reduce their significance to the wider career of an academic discipline and associated social practices. Cultural embeddedness is evidently not in and of itself inevitably a problem, and is probably in any case unavoidable as we are all people of our times. Lack of self-consciousness of the nature and fact of cultural embeddedness and closure to novel insights and threads of dialogue is, however, very likely to be problematic. Genuinely novel phenomena arising might fail to receive the analysis they deserve, for example, or contributions to resolution of long-standing problems may go unrecognized because they are outside the scope of unduly narrow dialogue.
Our querying the centrality of the conceptual tool ‘legal system’ to analytical legal theory might seem at first encounter to amount to a call for revolutionary departure from a profitable line of footnotes to Hart and an analytical legal theory tradition needing, as Leslie Green has urged, more and better work on the same questions.Footnote 2 Yet our aims are much less revolutionary than evolutionary, and are offered in a spirit of self-reflection motivated by recognition that such self-reflection is a means to guarding against our cultural embeddedness becoming intellectual narrowness. Indeed, we are much less revolutionaries than disappointed advocates of a necessary evolution in analytical legal theory's attempts to develop a general account of law. From preceding chapters we conclude that a general account of law using legal system as a central conceptual tool requires further tools to account for novel non-systemic phenomena. Further and more disappointingly, the conceptual tool ‘legal system’ requires internal renovation, since it does not seem fit to bear the explanatory weight its proponents wish it to carry with respect to legal phenomena it accepts as within its descriptive-explanatory scope. We do not propose to conduct that renovation here, in large part because we think there are more pressing tasks for analytical approaches to legal theory – in particular, expansion of the relational approach initiated by Hart. Yet as we approach that expansion of relations we owe some explanation of what an account of legality might look like with much-reduced reliance on legal system as a central conceptual tool. In this chapter we offer the outlines of that account, already substantially developed in Legality's Borders, and renewed here with the aid of helpful critics who have motivated us to clarify and extend our views in various ways. This reconstructed analytical approach to legality, re-imagining analytical legal theory with greatly reduced reliance on legal system as a central conceptual tool, will then underwrite subsequent chapters’ explorations of law's relations to freshly important social phenomena corresponding to our modernized analogue to Hart's ‘ordinary citizen’: the ‘ordinary citizen who travels’, emblematic of the twenty-first century as a century of unprecedented interconnectedness and inter-reliance of peoples and their environments.
In Legality's Borders we set out at length what we call an inter-institutional account of legality. The inter-institutional view attempts to characterize legality not in the familiar ‘top down’ descriptive-explanation of the constituent parts of a particularly salient form of legal order such as a legal system, but from the ‘bottom up’, observing the nature and interaction of elements of legality found in various forms of legal order including but not limited to legal system. Our exploration of the bottom-up approach is motivated by our knowledge of the history and consequences of a system-centred top down approach, and we owe a very large conceptual debt to the analytical theorists who identified the elements of legality which we absorb into the inter-institutional account with little modification. The inter-institutional account's originality lies in the way it understands combinations of elements of legality as constituting legal orders including but not limited to legal system.Footnote 3 Our approach is thus culturally embedded in system-centred approaches while aspiring to innovation in the sense of demonstrating how a novel deployment of existing insights can amount to a superior approach to characterization of legality, displacing as less explanatorily powerful and so less desirable the preceding system-centred approach.
The Inter-Institutional Approach to Characterization of Legality
A key but not exclusively key element of our approach is continued reliance on the analysis of legal norms as content-independent, peremptory reasons for action. As elaborated by Hart, such norms are identifiable and serve as reasons for action without further consideration of their underlying purposes or justification.Footnote 4 These logically isolable content-independent peremptory norms are typically found in habitat with further core elements of legality, such as legal-normative powers of various types and force. Joseph RazFootnote 5 usefully distinguishes powers to determine,Footnote 6 alterFootnote 7 or enforceFootnote 8 legal-normative situations. Such powers are most familiarly used by legal officials, but their use is not limited to legal officials. Each exercise of a legal power exhibits a second dimension of such powers: force. Continuing to follow Raz, we observe three aspects summarized as the total force of an assertion of a given legal power. An exercised legal power expresses implicitly or explicitly a certain scope over social states of affairs such as norm-subjects or varieties of transactions, and varies additionally with respect to assertion of duration of the effects of the exercise of the power. Finally, legal powers vary in their embodiment of an assertion of institutional force,Footnote 9 a measure of the magnitude of a legal power in a given social situation, whether influence over hierarchically subordinate legal norms and norm-subjects, or at junctures between sub-systems of a given legal system, or overlaps between legal orders such as state and international law.Footnote 10
Legal-normative powers wielding peremptory, content-independent legal norms may evidently be combined in various ways with various consequences for norm-subjects and legal-normative social situations. These powers and norms may additionally affect and be affected by the larger normative world they inhabit, which includes non-legal norms emerging from at least ethical, aesthetic and religious reasoning, conducted and applied to social life by officials and non-officials. Certain patterns of combination of powers and norms are typically more significant to inquirers than others. We follow much of Neil MacCormick's approach to characterizing the home of particularly significant norm-power combinations in institutions. MacCormick identifies a special, jurisprudentially and analytically purposed sense of ‘institution’ to capture a cluster of related norms functionally united to serve a single or purpose-circumscribed limited range of purposes.Footnote 11 This characterization of ‘institution of law’ as a functional unit of legal norms is contrasted with the terminologically close yet functionally distinct notion of a legal institution, an entity which operates institutions of law, sometimes to the extent of generating or varying those institutions of law, as, for example, a ministry of education can serve as a legal institution operating institutions of law requiring children of a certain age to attend school.
The picture of legality emerging from the combination of these elements, in many ways culminating in MacCormick's view, is compelling to the extent that it provides an account of legality which is not intrinsically wed to the system-centred or state-centred approach. The distinguished elements can be used as guides or ‘radar’ as we have said, for detection and characterization of legality in any legal order and not just legal system. MacCormick's view is, however, incomplete and insufficient as an explanation of legality. It is incomplete insofar as it does not explain fully the overlap between legal institutions and ‘social institutions which exist to carry out legal functions’.Footnote 12 More importantly, it is insufficient insofar as its explanation of legal institutions presumes the idea of legal system as an organizing concept or reference to social fact, and the basis for identification and distinction of legal from other social institutions.
Our extension of MacCormick's insights introduces the inter-institutional view as a device intended to explain systemic legality where it occurs, while remaining open to the possibility that there are non-systemic arrangements of legality which may arise outside the context of the state. Our view aims to respond to questions of identity and continuity by attempting to track legality-associated characteristics of legal institutions over time, and finds legal order in agglomerations of inter-dependent legal institutions. We urge attention to interactions of mutual reference amongst legal institutions, occurring at some level of intensity. We intend to capture both Hart's celebrated ‘chains of validity’ in hierarchical legal systems typical of modern municipal legal order, and equally the emergence and operation of institutions in interstitial situations such as the relations between roughly conventional law-states and so-called break-away entities such as Transnistria.Footnote 13 Transnistria's lack of international legal recognition qua state does not prevent its constituting a sort of legal perturbation warranting the neighbouring Presidents of Moldova and Ukraine asking for European assistance in addressing their irregular relations with the region, provided by a legal device, EU Border Assistance Mission to Moldova and Ukraine, whose omission of explicit inclusion of Transnistria in its name and mission belies its specific focus on the Transnistria.Footnote 14
Before turning to the advantages of our account of law, it is important at this point to be clear about the precise role that the idea of legal order plays, to ward off the view that we have simply introduced a new expression for the old idea of legal system, or alternatively that we have introduced a new, less familiar concept which plays the same role in an account of law as the concept of legal system. Let us emphasize that the idea of legal order is not amongst the explanatory elements of law we have set out above. Only the elements of law we have identified, including content-independent peremptory norms, institutions of law, and legal institutions and their relations, serve as explanatory tools.Footnote 15 This is important since it assists the observation that there is no single pattern or combination of elements of law which must exist for a legal order to exist. Legal orders take the form of, and so are the products of, whatever variegation of the elements of law emerge within, outside and across state contexts.
Two further remarks may help to explain the contrast we draw between legal system and legal order. First, we acknowledge that both ‘legal system’ and ‘legal order’ serve in part to determine the borders of law in a given social situation, yet we wish to draw attention to the quite different consequence of application of each idea. As we noted in Chapters 2 and 3, if one employs the concept of legal system one will look for the borders of law by looking for comprehensive, supreme and open normative systems, which arrange the norms and sources of law in a distinct hierarchy with formal officials and institutions. If, however, one employs the elements of legal order identified above, one will identify legality's borders in a given instance by observing combinations of content-independent peremptory norms, institutions of norm-applying, norm-creating and norm-enforcing kinds, and relations of mutual reference between some or all of these institutions. On the view presented here, one will not, in other words, look for and find law only where there are overarching claims of comprehensiveness, supremacy and openness, with formal sources, officials and institutions of the kind typically associated with states. Such phenomena are of course often associated with the concept of law, and can be seen to be present in some social situations; but on our view, these state-centred phenomena are best understood as only contingently connected to the nature of law, so should not be central in the best contextualized concept of law developed for use in explaining law in a globalized world.
Our second remark is related to the first. Some have worried that if we remove the concept of legal system from our theoretical explanation of law, we then become unable (and so should not try) to distinguish amongst ‘our law’, ‘your law’, ‘their law’, etc., and so end up with a kind of ‘global normative soup’ with no basis for articulation of its varied ingredients.Footnote 16 This would be problematic for a number of reasons, not least because distinct legal systems or legal orders, such as EU law, UK law, German law, Scots law, US law, First Nations law, etc., often serve as objects of long-standing and firm allegiance of particular communities. An adequate contextualized conceptual explanation of law must account for such social facts. We believe our view does just that, recognizing the possibility of distinguishing amongst legal orders yet claiming that borders amongst ‘our law’, ‘your law’ and so on are not always or necessarily best understood in terms of legal systems of the kind which claim comprehensiveness, supremacy and openness, with formal hierarchies, officials and institutions. This is so even if such claims form part of the self-understandings of those who adopt views of ‘our law’, ‘your law’, ‘their law’, etc. We maintain that application of the concept of elements of legal order offers a better approach to location and characterization of the borders of law. On our view, comprehensive, supreme and open legal systems are one possible kind of legal order; but the concept of legal order also includes all sorts of other combinations of norms and institutions and relations of interaction (hierarchical and non-hierarchical alike). We therefore agree that law is always law of some social group, but insist that both ‘law’ and ‘social group’ might vary significantly in structure and content. So while EU law, UK law, German law, Scots law, First Nations law, US law, etc., might all be regarded by their norm-subjects as distinct objects of allegiance, loyalty and value, not all are best understood as comprehensive, supreme and open legal systems, even if the relevant participants understand them as such. On this last matter, the question of explanation of participant perspectives, whether use of the theorist's term ‘legal system’ by participants in such contexts is a matter of habit, reflective choice or perhaps simply aspiration, a descriptive-explanatory approach to those contexts must take participant perspectives seriously but not uncritically. It is a commonplace that both more and less accurate participant understandings of social facts may be equally capable of guiding conduct in a manner sufficiently successful as to permit continued reliance on even inaccurate understandings. Our use of the idea of legal order captures all that is captured by legal system, permits attention to manifestations of legality beyond legal systems, and in recognizing this last possibility is a standing reminder of the importance of critical examination of participant perspectives in descriptive-explanatory approaches.
Individually Sufficient Conditions
The preceding section's discussion of the relative merits of system- and order-based approaches to legality have prepared the way for further explanation of the concept of law produced by identifying elements of legal order and applying them in a given social context. It might be thought that the elements identified above constitute necessary and sufficient conditions of legal order, such that if any were missing in some social context law would not exist. Yet, while the elements are meant to be basic, and constitute some characteristic features of law, they are not meant to be individually necessary and jointly sufficient conditions of law. It would nonetheless not be a mistake to suppose that each is individually sufficient for law to exist (with the exception of relations of mutual reference, which logically require institutions to engage in mutual reference). On our account, there is legal order even in the very simple and short-lived games which young children might make for themselves on the playground. So, for example, a group of boys might decide that, for an afternoon, no girls are permitted to use the swings, based simply on their say so. Here we have a single, content-independent peremptory norm which let us assume is effectively accepted (by the boys at least), practiced and enforced for an afternoon. But is this really law? Most intuitions would likely suggest that it is not law, for it enjoys nothing of the complexity, institutionalization and supremacy which we typically associate with state law. Nor is it, let us plausibly assume, supported in any way by state law or its institutions. Such a line of reasoning – looking for an ultimate chain of validity on which to pull – is what too often leads legal theorists to rely on the notion of legal system to locate the key identifying characteristics of law.Footnote 17
On our view, however, legal order is present in this situation, since the presence of a content-independent peremptory norm is sufficient to indicate the presence of legal order. Notice, though, that it is not a sophisticated, let alone fair, legitimate, etc., legal order. It has only one explicit norm, and perhaps a few implicit others depending on whether we would consider the group of boys to have normative powers of creation, application and enforcement which exist by mere assertion. The legal order, its norms and powers, have very little, if any, institutional force (we can assume that a single teacher on duty on the playground could end the legal order in an instant), and its scope and duration are also extremely limited. The boys have not made a law for other playgrounds, and our assumption is that the practice only lasts for the afternoon. Here, then, we have a very clear and easy way of explaining the similarities and differences between such a legal order and state law, without the need to exclude such an order from the realm of law.Footnote 18 State law includes content-independent peremptory norms, but is much more sophisticated, and typically enjoys much greater scope, institutional force and duration.
We should also explain that our focus on institutions in Legality's Borders, driven mainly by the examples of intra-, trans-, supra- and super-state law we wished to identify and explain, should not foster the impression that types of law with no distinct institutions or any institutions at all do not count as law on our view. For example, we do not want to exclude forms of indigenous and customary law which are not institutionalized, since these often exist as accepted social norms. Nor do we want to exclude the various versions of natural law as these are accepted and practiced in diverse places. In our view, these types of law, where they are not institutionalized, possess one of the elements of legal order – content-independent peremptory norms – which for us is enough to include them within the subject matter of general analytical jurisprudence. We did not say much about these types of law in Legality's Borders since our particular focus there was on the various forms of emerging legality (trans-state, intra-state, etc.), which have other core elements of legality, including institutions (in the sense of interconnected norms and normative powers) and social institutions (in the sense of organized actors). Still, just as our example of the playground norm is meant to illustrate, we hold a view which supposes that legal order can be found ‘all the way down’ to un-institutionalized norms.
We can also respond here to Andrew Halpin's charge that we did not adequately explain the difference between law and morality, religion and traditional norms. Referring to Legality's Borders, Halpin writes:
Nevertheless, in the authors’ view, there is a distinction to be drawn between legal normative orders and ‘the other diverse orders informing daily life – moral, aesthetic, religious, and traditional’ (149). Their immediately preceding reference to legal orders being ‘joined to other legal orders’ is intriguingly suggestive of closed membership of a club of legality, but it is far from clear what has to be done to gain entry. Religious or traditional norms might be treated as religious or customary law, but just might be left standing outside as merely informing daily life.Footnote 19
Halpin is quite right to note that we did not say very much in Legality's Borders about how to distinguish between law, on the one hand, and morality, aesthetics, religion and tradition, on the other. But to do so was not our aim, which was primarily to explore the adequacy of state-based theories of law in explanation of non-state forms of law. We agree with Halpin, however, that religious and traditional norms might very well be treated as kinds of peremptory norms, and even (and in the case of religion, often) develop into highly institutionalized social practices. If so, then to the extent that religious norms and traditional norms, and religion and tradition more generally, exhibit the elements of law we have identified above, they are law and manifest types of legal order. But only to the extent, it is crucial to emphasize, that they exhibit the elements of law. It would be a mistake to suppose that religion and tradition, and morality and aesthetics as well, are always and everywhere reducible to socially practiced peremptory norms around which institutionalized practices might (or might not) grow. Religion, morality, tradition and aesthetics are important concepts which help organize understanding of social and personal life, each with their own set of distinctive characteristics. They also certainly deserve to be studied just as much as the concept of law.Footnote 20 But conceptual individuation, and conceptual differences more generally, do not lead to any presumption that in practice their manifestations, uses, functions, norms, etc., will not overlap. Our account of legal order is meant to capture the similarities and differences between law and related social phenomena, not to draw clean lines between inherently interconnected social spheres where such clean lines do not exist.
Consistent with preceding argument, our account does not aim to track all linguistic usage of ‘law’ or ‘legal’. Nor does it attempt to reproduce without remainder or addition prevalent intuitions about what counts as law and what does not, which typically rely on some undefined group to which ‘our’ refers in ‘our concept of law’.Footnote 21 We do, however, think our view captures most familiar sorts of law, especially state law and international law. Such forms of law are typically institutionally complex, with greater institutional force, duration, and scope of application (when conditions of stability and continuity are satisfied). We also suggested elsewhere that in explanation of state law, for example, we might very well need to add supremacy and a minimum content of natural law amongst its typical characteristics.Footnote 22 This seems to us the best way of explaining distinctive kinds of law and legal order. If state law has distinctive features, as it surely does, then it will share some of the elements of law with other kinds of law. It may additionally have some features not shared with other law, though again this is contingent. For example, it might be the case now that international law contains the minimum content of natural law. What is most important for an account of the elements of law, we maintain, is that it be flexible and responsive enough to provide the tools to explain diverse forms of law and legal order.
In this way our view has certain affinities with the law-and-society approach adopted by Denis Galligan. In explanation of the difference between Hart and Kelsen on the methodology of legal theory, Galligan writes:
The conclusion we may draw is that legal theory, in providing concepts, categories, and ideas, is a good starting point for an analysis of law in society; at the same time, it is only a starting point, which must be supplemented by considering how law works when it encounters social situations in all their variety. Before developing this idea further, there remains a minor puzzle: how can legal theory be a generalization from social practices and then be used to classify social data and explain its significance. If theory is based on social experiences, how can it help to understand those same experiences? The answer is plain: the student of law-and-society, faced with a mass of social data about how law is working in practice, takes advantage of the concepts developed in legal theory, which represent the accumulated practical experience on which the theory is based. The process is reflexive, for it may be that the particular case shows up something new that has not been accounted for in the general theory, or that aspects of the theory are based on mistakes or misunderstandings. Adjustments are then made to the theory to ensure that it continues to reflect social reality, while adding new concepts where necessary.Footnote 23
In a similar vein, our concept of law offers what we called in Chapter 1 a contextualized conceptual explanation of legality in its diverse manifestations, which addresses but is not restricted to ordinary understandings. It might also be called a generalist view in that while its inspiration comes from a history of philosophers’ approaches and interests, its potential utility is far more broad, and might be taken up in sociological theory just as usefully as in philosophy, or by a historian considering explanatory options for understanding of some set of historical events. It is a lens whose particular philosophical purpose is to assist in the social explanation of law in a variety of contexts within and beyond the state.
In proposing a contextualized concept of law we might be viewed as breaking ranks with the analytical tradition of legal theory. An objection might appeal to Raz's often quoted characterization of the nature of analytical legal theory: it is a mistake, Raz supposes, to assess
the success of an analysis of the concept of law by its theoretical sociological fruitfulness. To do so is to miss the point that, unlike concepts like ‘mass’ or ‘electron’, ‘the law’ is a concept used by people to understand themselves. We are not free to pick on any fruitful concepts. It is a major task of legal theory to advance our understanding of society by helping us understand how people understand themselves.Footnote 24
Raz is here responding to a view he attributes to David Lyons, which presumes that any concept of law can be proposed so long as it is useful for some sociological purpose. Such a view makes it seem as if the goals and purposes of analytical legal theory are in some way derivative and dependent upon the goals and purposes of a different and independent discipline, sociology. This dependency ought to be rejected, according to Raz, since it crowds out an important and defensible philosophical task. It is far from clear, however, that Raz has correctly characterized Lyons's view, and it will be useful to see why.
A Role for ‘Sociological Fruitfulness’
Raz's rejection of Lyons's view is not accompanied by direct quotation of Lyons – the term ‘sociological fruitfulness’ is Raz's, not Lyons's – so a fuller understanding of the disagreement will benefit from close attention to Lyons's views as he expresses them. Lyons writes:
Traditional jurisprudence assumes, in effect, that what counts as law is to be determined by conceptual analysis – a careful explication of the idea of law, or rather the particular idea that is associated with the idea of a legal system, which draws appropriate distinctions between this idea of law and closely related ideas with which it might be confused. Philosophers of law sometimes seem to assume that the results of such conceptual analysis determine the proper boundaries of associated empirical studies. The anthropology of law, for example, may be conceived as having a subject-matter that is determined by the conceptual analysis of law.
As it happens, social scientists do not approach their studies in this way, and this does not seem to be merely a matter of disciplinary insularity. Legal phenomena are identified not so much by reference to the familiar features of legal systems, such as courts and legislative authorities, but rather in terms of certain social functions, such as dispute resolution and the social control of behaviour. These social functions are performed by a variety of social arrangements outside as well as inside legal systems, even when legal systems exist. One who is trained in traditional jurisprudence might be tempted to regard such an approach as muddled, confusing legal phenomena (‘properly so called’, as Austin might put it) with other social phenomena from which they should be distinguished. But that reaction might be misguided. To see this, we must consider how our ideas about the world are affected by empirical studies in other spheres.Footnote 25
To develop his argument Lyons draws on an analogy with the analysis of concepts which depict phenomena in the natural world:
Throughout developed science, one finds that our prescientific ideas serve as only first approximations of the way the world is really organized. They are liable to be modified or displaced by conceptions that depend on the successful development of scientific theory. Our prescientific idea of water, for example, referred to readily identifiable properties of substances. Water was conceived of as a tasteless, colorless liquid (or something of that sort). But the development of physical theory has shown this to be, literally, crude and superficial, in the sense that it does not satisfactorily correspond to the underlying physical reality. Physical science enables us to understand that the same substance can exist in different states, because it identifies that substance in relation to significant regularities in nature which are rooted in microscopic structures and relations. As a consequence, some of the things that we might originally not have classified as water are now understood to be composed of other substances, and some of the things that we might originally not have classified with water we can now understand to be identical with it in physically important respects.Footnote 26
Lyons continues:
If we conceive of the world as having no natural ‘joints’ – as a collection of phenomena which are unregulated by natural law – then any arbitrary set of concepts, any manner of drawing distinctions, might be adequate for describing it. A set of concepts would simply serve as a way of systematizing thought about the world. But even to suppose that one way of thinking about the world has some practical advantages over other possible schemes is to suppose that there are causal regularities among natural phenomena, knowledge of which we can use in making things happen. And there is no reason to assume that natural laws are excluded from the social realm. Quite the contrary…. So, if we think of legal phenomena as amenable to empirical study, then we must entertain the possibility that increased understanding of the social realities which underlie legal phenomena will affect our very idea of what counts as law. The concept of law that we currently have may provide us with no more than a first approximation of the natural ‘joints’ within the social world.Footnote 27
In Lyons's view, then, investigating or examining the concept of law is not an activity free from constraints. What we can know and say about the concept of law is subject to revision in light of responsiveness to the social realities of law. In other words, we are not simply at liberty to construct just any concept of law. The social world stands in the way. Yet at this point we might infer, on the basis of Raz's statement, that Lyons has simply failed to notice that there are key differences between analysis of concepts used to make sense of the natural world and analysis of concepts used to make sense of the social world. Here is how Lyons responds to such an objection:
There are of course important differences between legal phenomena and the subject-matter of physical science, the most important of which seems to be the following. Much of social reality is not merely ‘given’ by nature but is a product of human activity and is shaped by human ideas. Like other social phenomena, legal phenomena presuppose ideas in ways that physical phenomena do not…. Furthermore, some of the relevant ideas vary: they are ‘relative to culture’. This complicates enormously the study of legal phenomena. Thus, our idea of individual accountability for our acts and their consequences is not a cultural invariant. An ethic of guilt is different from an ethic of shame. Any study of legal phenomena must take variations like these into account…. It does not follow, however, that social reality is not regulated in significant ways by natural laws of cause and effect. Societies are organized in a variety of ways, but always within constraints of human psychology, social dynamics, and economic relations, which themselves are subjects for systematic study. How much of social reality is culturally variable and how much is invariant because of underlying natural laws remains to be seen. But we have good reason to believe there is much to be discovered by scientific study of social reality.Footnote 28
From these observations Lyons reaches the following conclusion:
We have no reason to assume that analytic studies of law have reached their limits. But an understanding of the relations between law and other social institutions may depend on the successful development of social theory. What distinguishes what we ordinarily call law from other social institutions, as well as what is common to them, and how important these similarities and differences really are is something that we cannot assume is discoverable merely by careful explication of our current concepts.Footnote 29
There is much that is intriguing in Lyons's view, particularly the precise ways in which an analytical account of the concept of law is subject to revision in light of the social realities of law. Unfortunately it is not developed any further beyond the passages we have quoted.Footnote 30 Still, we have enough before us to see both that Lyons's view is more nuanced than Raz indicates, and further that Lyons raises concerns which Raz's own view seems unable to address. The core trouble with Raz's view, which seems to treat some undefined group of persons’ understanding as a truth condition or fact against which theories of law must be tested, is that it is not easy to see how it allows analytical legal theory to progress beyond what Lyons calls a ‘first approximation’ of the concept of law. Specification of a means of progress is needed if it is possible – as we think it is – for ordinary citizens’ understanding to be flawed, confused or simply mistaken, which then requires theory and observation to provide a more accurate or illuminating understanding. If, on the other hand, no such room is needed, then we would expect analytical legal theories to simply report how people understand themselves, without any appraisal of the merits of such understanding. Brian Bix describes such a project as ‘unambitious’,Footnote 31 but it is likely much worse: it is the anti-philosophical abandonment of the pursuit of general jurisprudence.
Our resistance to giving ordinary understanding of law a dominant role in construction of a general account of law, favouring instead extension of the concept of law to include phenomena not traditionally included in the subject matter of analytical legal theory, is often treated as cause for worry that we will lose the ability to properly distinguish law from other kinds of social phenomena which are not law. Earlier in this chapter we addressed that concern by demonstrating the capacity of our view to include explanation of law in state systems, and to go beyond state systems, all with acknowledgement of overlap between normative orders and the consequent importance of resisting the temptation to draw hard distinctions where they may be unavailable because they are not present. Now, with the benefit of Lyons's insights into the importance of revisability for any descriptive-explanatory approach going beyond explanation of a particular group's concept, we may turn from demonstration of what our view includes, to examination of a methodological error it avoids by its inclusivity. What some have called a methodologically undesirable ‘analytical imperialism’Footnote 32 is evident in system-centred views which presume both the centrality of legal system to the instances of legality worth theoretical attention, and further, the centrality of the state system in theoretical explanation of law. The cost of analytical imperialism arrives as a form of difference-seeking in aid of demarcation of state system of law from other forms of normative order, at the expense of attention to degrees of variation and relation amongst state systems and other forms of normative order – whether acknowledged as legal or not. When state law is compared with the rules of sports associations, corporations and voluntary groups, for example, a concern with similarities tends to fall out of the picture and only differences are highlighted. Galligan provides much of the needed analysis in his discussion of ‘extended legal pluralism’:
What is it that makes some rule-governed spheres legal? Several answers have been given: one describes law, in this case indigenous law, as concrete patterns of social ordering; another as rules evolving spontaneously out of social life; a third is in terms of semi-autonomous social fields. Each of these summons up the idea of a law as a sphere of conventions and understandings; but since many associations of people more-or-less fit that description, it cannot be the basis for distinguishing legal orders from non-legal. Legal pluralists sometimes add a second condition: a social sphere must not only be rule-based but also have officials and institutions to apply the rules. The institutional aspects, so central to Hart's description of a legal system, could then be the basis for eliminating the social spheres lacking them. Its promise soon peters out because many social spheres, such as sporting clubs or professional associations, are institutionalized, having officials and offices for making, interpreting, and enforcing rules, and yet are plainly not legal orders.Footnote 33
Galligan's sensitivity to the costs and benefits of contrasting approaches and their proximity to ungrounded presumptions is helpful until the point of assertion without argument that sporting clubs and professional associations ‘are plainly not legal orders’. This is a peculiar stopping point since such social institutions resemble much more closely state law than either of morality or coercion. Insisting on stark differences at the cost of identifying similarities seems to get things precisely backwards, succumbing to analytical imperialism in the midst of resisting it. What is needed instead, as we have argued above, is an account of law which does not attempt to draw bright lines or absolute differences between law and not law, where such lines or differences do not exist, and is instead committed to thin and specified presumptions regarding the possible generality of a concept of law while nonetheless retaining the capacity to assert and characterize difference amongst legal orders. On our view, it is quite easy to see what would make sporting clubs and professional associations legal orders, with their legal norms, legal-normative powers and institutions, and at the same time, what distinguishes them from state legal systems, namely their limited scope in subject matter and low degree of institutional force in relation to other institutions. Put simply, if related phenomena are both similar and different in important ways, what we need is an account or concept of law which is capable of identifying and explaining both the similarities and differences.
In the spirit of recognizing both similarities and differences, while our account differs both in terms of the elements of legality that it identifies and the purposes to which such elements are used in explanation of law, there is nonetheless an important similarity of inclusion which our view shares with Lon Fuller's account of the inner morality of law. Writing nearly forty years before Galligan, Fuller provides in our view several sensible observations about the status of normative orders such as the rules of clubs, voluntary associations and universities. Fuller notes that if we are prepared to see law as ‘the enterprise of subjecting human conduct to the governance of rules’, then we ought to be prepared to see in countries such as the US ‘“systems of law” numbering in the hundreds of thousands’.Footnote 34 Commenting on a hypothetical example of a college that ‘enacts and administers a set of parietal rules governing the conduct of students in its dormitories’, Fuller explains
If we extract from the word ‘law’ any connotation of the power or authority of the state, there is not the slightest difficulty in calling this a system of law. Furthermore, a sociologist or philosopher interested primarily in the law of the state, might study the rules, institutions, and problems of this body of parietal law for the insight he might thus obtain into the processes of law generally. However, so inveterate has become the association of the word ‘law’ with the law of the political state that to call a system of parietal rules in all seriousness a ‘system of law’ suggests an offense against the rules of linguistic propriety.Footnote 35
Fuller notes, of course, that a quick and easy way to extend the meaning of the word ‘law’ is through stipulation, so that while we can note that ordinary language typically associates ‘law’ with the law of a political state, we might simply stipulate an extended use of the word ‘law’ which includes state law but also the sets and systems of rules we find in churches, sports leagues and universities. However, as he notes, such a strategy would be too quick and easy. Fortunately, it is not hard to find compelling reasons and arguments in favour of departing from the conventions of ordinary language. As Fuller maintains:
A view that seeks to understand law in terms of the activity that sustains it, instead of considering only the formal sources of its authority, may sometimes suggest a use of words that violates the normal expectations of language. This inconvenience may, I suggest, be offset by the capacity of such a view to make us perceive essential similarities. It may help us to see that the imperfectly achieved systems of law within a labor union or a university may often cut more deeply into the life of a man than any court judgment ever likely to be rendered against him. On the other hand, it may also help us to realize that all systems of law, big and little, are subject to the same infirmities.Footnote 36
We should emphasize again that we do not share Fuller's functionalist conception of law identifying the essence of law as the ‘enterprise of subjecting human conduct to the governance of rules’, and we do not aim to offer a conception of law of primary use for moral understanding and evaluation of the ways in which legal systems might achieve or fall short of the inner principles of legality. We do, however, share Fuller's general commitment that ordinary language or linguistic propriety should not serve as a decisive factor in explanation and construction of a concept of law, especially when such explanation and construction is limited to the idea of the law of a political state, so is unresponsive to reasons and evidence based in social reality which suggest revision is warranted.
It is worth returning at this juncture to Raz's view about the nature of conceptual explanation in legal theory, in which the theorist's task is not to develop concepts, but instead to explain existing ones. Some of the limitations of this view are helpfully expressed in Fuller's caution that explanation may sometimes require violation of the normal expectations of language, even while this caution arrives from a quite different account of law. In closer methodological proximity to Raz, Hart's methodological reasoning regarding his preference for a ‘wide’ concept of law reminds us of what is at stake.Footnote 37 As we noted in Chapter 2, in comparison between a ‘wider’ legal positivist concept of law, which includes morally iniquitous rules as possible legal rules, and a ‘narrower’ natural law concept of law, which excludes morally iniquitous rules from amongst the class of possible legal rules, Hart identifies a choice to be made:
Plainly we cannot grapple adequately with this issue if we see it as one concerning the proprieties of linguistic usage. For what is really at stake is the comparative merit of a wider and a narrower concept or way of classifying rules, which belong to a system of rules generally effective in social life. If we are to make a reasoned choice between these concepts, it must be because one is superior to the other in the way in which it will assist our theoretical inquiries, or advance and clarify our moral deliberations, or both.Footnote 38
Hart's choice of the wider concept of law gave early notice of the cost of choosing the narrower:
It seems clear that nothing is to be gained in the theoretical or scientific study of law as a social phenomenon by adopting the narrower concept: it would lead us to exclude certain rules even though they exhibit all the other complex characteristics of law. Nothing, surely, but confusion could follow from a proposal to leave the study of such rules to another discipline, and certainly no history or other form of legal study has found it profitable to do this.Footnote 39
If we follow Hart in supposing that there is room for choice in selecting a philosophical concept of law, we should be particularly mindful that the choice is constrained in particular ways. We may follow Raz in rejecting sociological fruitfulness as a success criterion for a descriptive-explanatory account of law, while accepting at the same time that a descriptive-explanatory approach driven by inquirer interests must nonetheless be responsive to novel evidence. And in the same way, we may understand that the justification for commitment to inclusion of participant perspectives in development of an understanding of the concept of law is not at the same time justification for regarding those perspectives drawn from a particular time and place as basic data which as such cannot be confused, partial, mistaken or otherwise needing supplementation. Attention to novel phenomena arising, and to the possibility that participant perceptions are misguided, are part and parcel of capturing law in a manner less likely to simply repeat explanatory presumptions, and more likely to detect variations, similarities and change in human practice constitutive of law. If our general concept of law upsets participants’ understanding of law or ignores them without showing their irrelevance, confusion or mistakes, then so much the worse for the general concept as a tool of social explanation of law, but that caution brings an obligation of comprehensibility, not faithful reflection of self-perception.
The preceding reflections on the purpose of a concept of law and its relation to social scientific evidence have enabled us to express what we view as a methodologically improved analytical approach to concept construction, retaining prior norm-level work in our account of the elements of legal order, and undertaking some of the work needed to extend that approach to legal phenomena beyond the state system. Much of that work is provided in Legality's Borders. Our inter-institutional view of legality as expressed there is free from the presumption of the centrality of the state legal system, so is better able to identify and explain a greater range of types of legality, from intra-state to trans-state, supra-state and super-state legality. Discussion in this chapter prepares the inter-institutional view for application to new phenomena by exploring in more detail precisely what we mean in seeking to address legal orders in addition to state systems of law, and how the inter-institutional view serves as a general tool for the detection and measurement of legal orders. In the last chapter we followed Hart in criticizing the use of presumptions of validity or systematicity as a means of determining the actual, social existence and borders of law. As we explained, such presumptions are unreliable guides in accounting for the social reality of law. Earlier in this chapter we introduced an alternative to presumptions of validity or systematicity. In our account of the elements of legal order, we suggested that legal institutions form into legal orders both when they practice content-independent peremptory norms, and exercise normative powers of various kinds, and when they mutually refer to each other at some level of frequency and intensity. The distinctive character of relations of mutual reference is such that by their very nature they invite the kind of social investigation which must be carried out over time. In this way they form part of a dynamic rather than static general concept of law, since if we want to know whether there is a legal order between institutions, which might exist within or across, or perhaps simply at the level of states, we must investigate the frequency and strength of their mutual reference. In stable state systems of law the frequency and intensity of relations of mutual reference between police institutions, courts, legislatures and border officials tends to be quite high, though even in stable, steady states the frequency and intensity of relations of mutual reference might still be uneven across various issues and across territory. This is perhaps the lesson of the Manitoba Language Rights case discussed in the last chapter. In failed, failing or weak states, the frequency and intensity of relations of mutual reference tend to be much lower, and might be non-existent on various issues and across territory, leaving order entirely in the hands of local groups. The capacity of our inter-institutional view to characterize these situations is of value in its own right, but we are of course aware that critics maintain the capacity of system-centred views to do the same. Where we part from our critics is in the capacity of our approach to find legality ‘all the way down’ to legal orders so simple and brief that they deservedly pass unnamed. In following legality to simple institutions, our approach is capable of characterizing situations where normative orders overlap, and in doing so to capture similarities and differences amongst legal and other orders. Most importantly, the heart of our approach is found in its orientation towards dynamic interchange amongst institutions of law and legal institutions, so an approach which need not construct a revised concept from observed momentary legal systems and is instead always and inherently phenomena-responsive.
From the Elements of Legal Order to Its Preconditions
We have reached a turning point in our argument as we move in the following chapters to contextualize our inter-institutional approach to the concept of law by examining law's relations to environment, security and technology. This examination is intended to enact the revised research agenda for analytical legal theory expressed in Chapter 1 as a continuation of the argument of Legality's Borders. We aim to provide the missing middle between analytical legal theory's narrow concern with questions regarding operations of law in state systems, and over-breadth driven by demands for comprehensive explanation of legality. The missing middle may be summarized as phenomena-responsiveness unburdened by the presumption of the centrality of the state system to experience of law, and further aware of the incompleteness of the state-centred descriptive-explanatory approach on its own terms. As we have seen in Chapters 2 and 3, the state-centred approach presumes rather than states an account of the relation between state, system, and society, and behind that presumption we found the fruits of an analytical imperialism which delimits its scope to the momentary state system. This approach eschews sociological fruitfulness as a matter of its commitment to investigation of the concept of law as a matter of self-understanding. Yet in preserving epistemic distance from mere reporting of linguistic use or autobiography, it omits to provide an account of the participant perspective it serves and how such a perspective incorporates novel evidence over time – whether from within the investigative limits of the state system, or from the experience of legality beyond the state and normative orders similar to yet distinguishable from legal order. Our exploration of law's relation to environment, security and technology begins to contextualize the concept of law we construct for our twenty-first-century travelling citizen, examining these phenomena within and beyond state systems of law and adjacent normative orders. The context in which these relations are found, at the social base of legal orders including but not limited to state systems of law, leaves this relational expansion of the concept of law especially well-prepared to take up the lessons of this chapter's focus on construction of a concept of law from elements of legal order equally ready for deployment in characterization of very simple and very complex legal orders. We have chosen to build our wider concept of law from elements of legal order, and a relational approach to social and physical phenomena most relevant to the interests of our inquirer. As we shall see in the following chapters, that inquirer is vitally concerned with continuity of legality within and amongst legal orders in a rapidly changing world, where the virtual overlaps with the terrestrial, the live with the artificial, and norms such as technological standards interact with and perhaps determine forms of legal order.
