CORRESPONDENCE
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01447.x |
| Date | 01 January 1976 |
| Published date | 01 January 1976 |
118
THE
MODERN
LAW REVIEW
[Vol.
39
of
sentencing and, within its limited practical objectives, provides
a
useful
handbook for Bench and Bar.
THE
SOUTH AFRICAN
LAW
OF
HUSBAND
AND
WIFE. Fourth Edition.
By
H.
R.
HAHLO.
With an Appendix
on
Jurisdiction and Conflict
of
Laws.
By
ELLISON
KAHN. [Cape Town: Juta and Company
Limited. 1975. 754 pp. incl. index.
R.35.1
A new edition of the work reviewed in
(1970) 33
M.L.R.
231.
SUPREME COURT PRACTICE 1976. Fourth Edition.
Vols.
1
and
2
plus
First Supplement. General Editor:
I.
H.
JACOB.
[London: Sweet
81:
Maxwell. 1975. €47
50
(incl. 1976 service).]
THIS
new edition appears on the hundredth anniversary of the Supreme
Court
of
Judicature Act
1875
as
large and bulky
as
ever. Although there have
been extensive changes and developments since the last edition three years
ago, the impetus
of
major reform has slackened. There will be regular
supplements to the White
Book
until the next edition
3
years hence.
CORRESPONDENCE
THE
EDITOR,
THE
MODERN LAW REVIEW.
Dear Sir,
In his article “The Institutional Nature of Law
”
((1975) 38
M.L.R.
489)
Joseph
Raz
asks and attempts to answer one
of
the basic questions
of
analytical jurisprudence “What
is
a
legal system?
”.
The nature of the
question is such
as
to suggest
a
positivist answer which both defines and
identifies legal system, and indeed the answer Dr.
Raz
gives is basically. of
this type. But he seems
also
to have felt
a
need to add some sociology to his
positivism, and the resulting mixture is not very illuminating.
Our
criticism of Dr.
Raz’s
article has two limbs: first that
as
sociology
it
is inappropriate to answer the question he
is
asking: and secondly, that
as
positivism
(or
even simply as analytical theory, if the two are to be
distinguished) it
is
unconvincing.
(a)
As
sociology
Dr.
Raz
makes an initial assumption
of
“the primacy
of
the social”
(p.
489).
This assumption firstly relies on
a
distinction between
a
system
which is
“
in force
”
(or
existing) and one which is not, and
“
Whether
or
not
a
system is in force in
a
society depends on its impact on the behaviour
of
people in the society
”
(p.
489).
Secondly,
Raz
suggests
that
“
the features
which distinguish
legal
systems from other normative systems
”
(our
emphasis)
are
“
those features which enable them to fulfil
a
distinctive
role
in society
”
(p.
490).
Two important sociological questions are thus raised. A system’s
impact on behaviour has
to
be established in order to answer them, but
what does “impact” mean in this context? All normative systems are
designed to have some impact on behaviour: whether they do
or
not, and
in what ways, is not an analytical but
a
sociological question, which no
amount of logomachy
or
logicality can answer. A legal system’s distinctive
role in society has to be described, but how can it be? More important, does
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