This chapter argues that it is beneficial to situate the fact–value debate in the broader context of the natural and the normative. Situating the debate in this way allows for finer distinctions between varieties of the normative – for example, distinguishing between values, norms and conventions. Making such distinctions helps, in turn, to see the different kinds of entanglements there are between the natural and the normative. Somewhat paradoxically, this way of speaking still retains different terms for phenomena that – as argued here – cannot be entangled. However, this is as it should be: there is pragmatic value in retaining the distinction, while rejecting any metaphysical dichotomy, between the natural and the normative. The implications of this argument for the methodology of legal scholarship are briefly explored.
Maksymilian Del Mar
This chapter makes a case for the virtues of theorising law historically – in general, but especially in the global context. It is argued that theorising law historically has five virtues. It brings with it sensitivity to (1) variation and variability; (2) contingency; and (3) relationality. Further, (4) it draws on the repository of imaginaries of time in historical scholarship, and thus gains analytically by applying multiple diachronic frames to law and legal thought. And, (5) it is a normative exercise, which – via awareness of historiographical debates – can bring into view a wider range of values that are at stake in theorising law. Following an abstract presentation of these virtues, they are then illustrated by reference to theorising the relation between law and power historically. The chapter then turns to the global context, and first offers a multidimensional picture of power in global histories of power – where it is argued that power can profitably be modelled as having the following three dimensions: (1) spatial and temporal; (2) material and aesthetic; and (3) linguistic and imaginary. Having offered some resources from global history along these dimensions, the chapter then applies them to consider the relation between law and power in a global context.
Maksymilian Del Mar
This chapter offers a means of thinking historically about authority – namely, to examine the history of its images. By ‘images’ here are meant stocks of concrete, leading examples used by theorists when theorising some concept. In the case of authority, this has often included certain hierarchical relations, such as those between father and son, doctor and patient, teacher and student, and officer and soldier. This means of historicising authority is conceived of as part of a broader attempt to focus on the ‘archaeology of disagreement’, i.e. the idea that understanding any concept – including authority – will benefit from exploring how theorists have disagreed about it over time – beginning with disagreements in particular contexts of debate, and then comparing reasons for disagreement across contexts. Comparing different kinds of disagreements may also bring to light unnoticed assumptions made in particular contexts of debate by showing their absence in other contexts. The chapter suggests that the most intractable kinds of disagreements may be disagreements at the level of images. This is considered in the context of a relatively recent debate – namely, that between Martin Loughlin and Neil MacCormick as to the viability of the concept of ‘constitutional pluralism’.
Maksymilian Del Mar
Roger Cotterrell and Maksymilian Del Mar
This chapter concludes the volume, offering more speculative reflections on the central themes of the book, including whether a minimal conception of authority for the purposes of transnational legal theory is possible / desirable. The chapter also consider the various methodological challenges of theorising authority transnationally.