Law is not only about legal norms, about the normative legal order. It is also about first-order sociolegal practices where legal norms are realised and specialised legal practices where norms are (re)produced and their realisation is guaranteed. Characteristic of modern state law is differentiation. An important aspect of differentiation is abstraction of legal norms from sociolegal practices. In turn, differentiation of norms and practices has enabled the emergence of specialised legal practices, including legal scholarship, with their focus on law as a normative legal order. Yet differentiation does not mean isolation. The normativity of law cannot be accounted for without heeding law’s sociality, nor can sociality be accounted for without heeding normativity. A relational approach is needed: normativity must be related to sociality and vice versa.

Despite their different functions in law and society, specialised legal practices are interlinked. They produce legal texts: laws and travaux préparatoires, court decisions, and scholarly papers and treatises. These are legal speech acts which are recursively linked with each other to constitute a common legal discourse. It is this discourse which, at the surface level of law, determines the momentary contents of the normative legal order, that is, the law in force. In modern state law, legislators bear the main responsibility for establishing new legal norms. During the legislative process, travaux préparatoires are published by law-drafting and deliberative bodies, such as legislative bills submitted to parliament, and reports by governmental and parliamentary committees. These may be considered as legal speech acts on their own. The main task of judicial practices is to apply the law in force to concrete cases and thus to secure its realisation. Yet, especially through precedents issued in hard cases, courts also exercise legislative and doctrinal functions and modify what counts as the law in force. Finally, through its interpretative and systematising, doctrine-developing interventions, legal scholarship, too, impacts the contents of the momentary legal order.

This essay employs the perspective of modern state law. In this Part, I discuss developments which problematise the taken-for-granted state-centrist features of my framework. I have already questioned two of the foundational reductions of Legal Positivism: law’s reduction to normativity and legal normativity’s reduction to its surface level. The time has come to attack even the third one: the reduction of law to state law. The rise of non-state law has profoundly altered the setting for examining the plurality of law. Yet in the following the dominant perspective from which non-state law will be examined will still be that of state law. The conceptual language will be the legal language of modern state law, and the distinctions that govern my approach to non-state law derive from this particular type of law.

Merely sixty years have elapsed since Kelsen published the second edition of Reine Rechtslehre and Hart The Concept of Law. For the Masters of Legal Positivism, the self-evident premise was that all law is state law, either intra- or interstate. Non-state law entered their field of vision primarily as an imaginary primitive normative regime which constituted both a contrast to a developed legal system and a starting point for legal evolution, ending up with fully fledged state law. Whether they considered the primitive regime as law or not remains unclear. During the decades separating us from publication of the chefs d’oeuvre of Legal Positivism, the monopoly of state law has been threatened by the rise of what has come to be called non-state law. Usually, a distinction is drawn between non-state law above and below the state. In this distinction, transnational law represents non-state law above, with indigenous and religious law below the state. Yet the distinction may be misleading: transnational law displays a local and the law of world religions a transnational dimension. In most cases, transnational legal regimes are genuinely new formations, whose background consists in the social mega-trend dubbed globalisation or, to use a less pretentious expression, denationalisation. By contrast, indigenous or religious normative regimes are no recent newcomers but predate modern state law. What is new is recognition, though haltingly, of their legal relevance by state law.

Post-national plurality not only puts items on the global map of law that had no place in the black-box model of Legal Positivism: instances of non-state law, such as transnational, indigenous, and religious law. Post-national law also fundamentally alters the relations among instances of law, and annuls the self-sufficiency and reciprocal closure of the black boxes. The black-box model depicted the plurality of law as simple diversity, as mere coexistence of state legal orders, without any hint of either dialogical or conflictual relations. In contrast, post-national plurality invites us to conceive of the global constellation of law as interlegality where instances of law overlap and communicate in various modes.

This is an essay in legal theory, not a doctoral thesis. I have tried to keep the footnotes to a minimum and shunned textual footnotes. The essay is, of course, based on extensive reading. In addition to the sources of direct quotations, I have wanted to indicate merely the literature I have most profited from. Yet I have not considered it necessary to identify the sources of all household premises of legal theory and sociology, say, the views and insights of classics such as Hobbes, Bentham, and John Austin or Kant and Weber.

Law never works in isolation but always in conjunction with other law. This holds for all legal practices, and for all legal speech acts. Laws and court decisions include explicit or implicit references to other laws and decisions, and to other legal norms than only those explicitly applied to the case at hand. Furthermore, surface-level law is not even intelligible without the filter provided by sub-surface layers. The normative legal order possesses an order which makes it into a unity and which provides it with its identity. The question can only be how order, unity, and identity should be conceived of. Here my focus is on order and unity, while below, in discussing the plurality of law in Part III, it is on unity and identity. Yet the link between order, unity, and identity should be kept constantly in mind.

In this essay, my aspiration has been to present a legal-theoretical recapitulation of law; a reflexion theory of law, as Luhmann put it. I have resorted to two main methodological devices, which also imply perspectival choices. First, I have opted for discussing law in the framework of an ideal-typical modern state legal regime. The choice of modern state law as the perspectival premise has been motivated by its high grade of differentiation. This facilitates elaborating analytical distinctions which can then be applied to exploring other types of law too. In modern state law, legal norms have become detached from sociolegal practices and, due to their objectivation and dissemination in writing, embarked on a trajectory of their own, although never losing contact with sociolegal practices as law’s social modes of existence. Parallel to the detachment of norms from practices, second-order, specialised, legal practices have emerged. First-order sociolegal practices remain the chief locus of law’s realisation, while second-order practices monitor and react to disturbances in that realisation, and assume the tasks of (re)producing the normative legal order. The differentiation within sociolegal practices finds its parallel in the normative dimension in the division of primary and secondary rules, addressing, respectively, first- and second-order sociolegal practices. Differentiation of specialised second-order legal practices enhances the role of legal professionals and the importance for those practices of professional legal Vorverständnis, informed by the prevailing legal culture. Legal culture displays normative, conceptual, and methodological components. It also includes a legal language where legal concepts function as the vocabulary and patterns of legal argumentation and reasoning as the grammar.

Among legal theorists, as well as sociologists and historians of law, broad agreement prevails that differentiation of practices specialised in particular legal functions has been decisive for the emergence of modern law, if not law in general. Particular significance has been accorded to detachment of the judicial function: complementing primary realisation of law in first-order sociolegal practices and private forms of enforcement, such as blood feud, with secondary realisation through judicial practices and accompanying coercive execution. Kelsen and Hart, the Masters of Legal Positivism, tended to treat positive law exclusively as a normative legal order and largely ignored analyzing first- or second-order sociolegal practices. However, in their brief sketches of the transition from a primitive regime of rules to state law (Kelsen) or a developed legal system (Hart), differentiation of specialised legal practices holds centre stage.

Social practices are inherently normative; no non-normative social practices exist. Yet, the extension and intensity of inherent normativity varies. The primary interlinking factor of dispersed practices is a common understanding of the criteria that acting must meet in order to be treated as a token of a particular practice; as ‘X-ing’. Such thin, conceptual, normativity is not specific to social practices. All our conceptual thinking and identifying of entities and events, as well as arranging the objective, social and subjective world, involves such normativity.

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.

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.