Legality's Borders

An Essay in General Jurisprudence

Keith Culver and Michael Giudice

Provides a clear account of the challenges facing general jurisprudence
Provides detailed examples of novel legal phenomena
Focuses on the capacity of current debates to face new phenomena
Challenges the view that legal pluralism is the only alternative to state-centered legal theory
Applies the rudiments of a new, analytical theory of law to various kinds of non-state law

Legality's Borders

An Essay in General Jurisprudence

Keith Culver and Michael Giudice

Description

English-speaking jurisprudence of the last 100 years has devoted considerable attention to questions of identity and continuity. H.L.A. Hart, Joseph Raz, and many others have sought means to identify and distinguish legal from non-legal social situations, and to explain the enduring legality of those typically dynamic social situations. Focus on characterization of legality associated with the state, the most prominent legal phenomena available, has led to an analytical approach dominated by the idea of legal system and analysis of its constituent norms. Yet as far back as Hart's 1961 encounter with international law, the system-focussed approach to legality has experienced moments of self-doubt. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches which presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality we characterise in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union. Identity over time, on this view, is less a fixed set of characteristics than a history of intense mutual interaction of legal institutions, comparable against similar other agglomerations of legal institutions.

Legality's Borders

An Essay in General Jurisprudence

Keith Culver and Michael Giudice

Table of Contents

Chapter 1. Introduction

1.1. Imbalance in Analytical Legal Theory's Approach to Prima Facie Legal Phenomena

1.2. New Phenomena

1.2.1. Intra-State Legality
1.2.2. Trans-State Legality
1.2.3. Supra-State Legality
1.2.4. Super-State Legality: Claims to Universality in Peremptory Jus Cogens Norms

1.3. State-Based Legal Theory

1.4. Re-Balancing After Imbalance: An Incremental Addition to Analytical Legal Theory

Chapter 2. Legal Officials, the Rule of Recognition, and International Law

2.1. Structure and Function of the Rule of Recognition

2.2. Explaining Officials' Contribution to the Rule of Recognition: Facing Circularity and Indeterminacy

2.2.1. Officials by Office and Attitude
2.2.2. Speculative Social Anthropological Accounts

2.3. Hierarchy in the Rule of Recognition

2.4. The Rule of Recognition and International Law

2.4.1. Not a System but a Set
2.4.2. International Rules of Change and Adjudication
2.4.3. International Legal Officials?
2.4.4. Kelsen's Account of International Law

Chapter 3. The Hierarchical View of Legal System and Non-State Legality

3.1. Raz's Structural Account of Legality

3.2. Functional Assessment of Raz's Account of Legality

3.2.1. Indeterminacy at the Borders
3.2.2. Parochialism

3.3. State-Centred Hierarchy

3.4. Non-State Legality

3.4.1. Hierarchy and the European Union
3.4.2. Trans-State Legality Revisited

Chapter 4. Meta-Theoretical-Evaluative Motivations

4. 1. Perspective, Phenomena, Problems, and Method

4.1.1 The Ordinary Person's Perspective and a Contingent Concept
4.1.2. Bootstrapping in Analytical Legal Theory

4. 2. Recent Approaches to the Problem of Perspective

4.2.1. System and Set
4.2.2. Network Theory
4.2.3. International Relations Theory

4. 3. Renewed Perspective
Chapter 5. An Inter-Institutional Theory

5.1. Elements of Legality

5.1.1. Content-Independent Reasons for Action
5.1.2. Legal Normative Powers
5.1.3. Institutions of Law
5.1.4. Legal Institutions
5.1.5. Mutual Reference and Intensity

5.2. The Systemic Law-State

5.2.1. Minimum Content of Natural Law
5.2.2. Comprehensiveness, Supremacy, and Openness
5.2.3. System

5.3. The Narrative Concept of Law and the Problems of Circularity and Indeterminacy

Chapter 6: An Inter-Institutional Account of Non-State Legality

6.1. Meta-Theory Revisited: Between Legal Pluralism and Geo-Centric Statism

6.2. Meeting the Explanatory Challenge: Bringing Elements of Legality to Bear on Explanatory Problems Beyond the Systemic Law-State

6.2.1. Intra-State Legality
6.2.2. Trans-State Legality
6.2.3. Supra-State Legality
6.2.4. Super-State Legality

Chapter 7. Fresh Problems

7.1. Pathologies of Legality

7.2. Novel Technologies and their Implications for Conceptions of Legality

7.3. Re-balance after Imbalance: the Consequences of Re-socializing a Descriptive-Explanatory View of Law

Index

Legality's Borders

An Essay in General Jurisprudence

Keith Culver and Michael Giudice

Author Information

KEITH C. CULVER is Professor and International Chair in Generating Eco-Innovation, in the UniverSud Paris. From 1997 to 2009 he taught at the University of New Brunswick, Fredericton, where he was director of the Centre for Social Innovation Research. He holds degrees from the University of Victoria (BA Hons), McMaster University (MA), and the University of Guelph (PhD), and has held visiting fellowships at the universities of Edinburgh, Stirling, and Oxford. His research at the intersection of law, philosophy, and technology has ranged from work on e-democracy to investigation of fisheries and aquaculture.

MICHAEL GIUDICE is Assistant Professor of Philosophy at York University, Member of the Graduate Faculty at Osgoode Hall Law School, and Associate of the Jack and Mae Nathanson Centre on Transnational Human Rights, Crime, and Security. He has studied at both the University of New Brunswick (BA Hons) and McMaster University (MA, PhD), and was also a Visiting Student in Analytic Legal Philosophy and a Commonwealth Scholar at the University of Oxford. He has published several articles in the philosophy of law, and is currently co-editing a three volume collection on contemporary legal theory for Ashgate Publishing.