Law and Administration by Carol Harlow and Richard Rawlings
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00841_1.x |
| Published date | 01 January 2011 |
| Author | Robert Thomas |
| Date | 01 January 2011 |
codi¢cations and why they are likely to have di⁄culties.The American Restate-
ment o¡ers the paradigm ofa non-legislativecodi¢cation. Here there was a need
for greater consistency across states, support from and participation by the legal
profession, and a textthat was comprehensive andclear to use - one could distin-
guish the proposed rule and the commentary, which included justi¢cations.
Furthermore, the rules proposed were predominantly consolidations of existing
rules.The UNIDROIT principles come closest because of the need for rules in
international commercial contracts. The Principles of European Contract Law and
the DCFRdo not respond to perceived needs of the profession to meet practical
di⁄culties, and the textsare not presented as a consolidationof existing rules with
commentaries that show their derivation from national legal rules.They are pro-
posed as a new start,appealing to the rationality of the content, but lacking some
of the non-rational features of professional appeal and even textual design that
Jansen identi¢es. Indeed, it is not clear that PECL or the DCFR address a‘legal
community’ in the same way as the other documents. Surely a community
requires an element ofcohesive ness and of common concern. In this respect, Jan-
sen’s historical examples of the ius commune may not be helpful indicators of how
the acceptance of law works in the modernworld.
This short book provides stimulus to thought and is an easy read. The theore-
tical question of what we mean by a legal authority is eschewed. For the most
part, it means here a workthat is considered tobe a reliable statement of the law
that can justify not citing other sources. The author makes passing comment
about Kelsen and Hart, but does not reallyengage with their search for the nor-
mative authority of legal texts. There is a big di¡erence between‘this is a reliable
statement of the law’ and ‘I ought to do what this text says’. The mere fact that a
legislator has enacted a text or that a legal community treats it as authoritative
does not of itselfestablish the normativity of what is stated. If Jansen is right that
the law is what the lawyers are prepared to accept, then even largerquestions are
raised about law’s normativity and legitimacy than about Austin’s view that the
law is what the sovereign enacts.
John Bell
n
Carol Harlow and Richard Rawlings, Law and Administration,Cambridge:
Cambridge University Press, 3rd ed, 2009, 827pp, d40.00.
For administrative lawyers of a certain age and disposition, Lawand Administration
is the classic presentation of a functionalist style in administrative lawscholarship.
It is overwhelmingly the case that virtually all other administrative law texts and
most administrative law courses adopt a court-centred approachof the discipline.
Indeed, it is sometimes assumed that there is little of relevance to administrative
lawother than the doctrines of judicialreview and the way in which the courtsare
n
Faculty of Law,University of Cambridge
Reviews
153
r2011The Authors.The Modern Law Review r2011The ModernLaw Review Limited.
(2011) 74(1) 150^170
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