Theorising Across Disciplines
Elgar Studies in Legal Theory
Edited by Roger Cotterrell and Maksymilian Del Mar
Chapter 2: Claims to authority, legal systems, and dynamic social phenomena
Here we investigate the adequacy of the conception of legality expressed in explanatory accounts of the nature of law that take state legal systems as the object of their explanatory challenge. More specifically, we investigate accounts of state legal systems conceived as a special union of different types of rules used by their officials and institutions to make special normative claims of authority over the lives of territorially-contained subjects. We argue that just as the idea of the state is only one way – and probably not the best way – of understanding the social foundation of law whenever and wherever law exists, the idea of the state legal system is only one way – and probably not the best way – of understanding the totality of legal phenomena giving rise to the idea and practice of legality. This analysis yields the conclusion that the conception of legality arising from explanation of the relations between modern sovereign states and state legal systems is only one part of an adequately comprehensive explanation of the relation between society and law. A broader approach and conception of legality is better suited to analytical legal theory’s aim to offer phenomena- and interest-responsive conceptual explanations of law in more than contingently prominent contemporary instances of legality.
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