Out of Place and Out of Time: Law's Fading Co-ordinates
| Published date | 01 January 2010 |
| Author | Neil Walker |
| Date | 01 January 2010 |
| Pages | 13-46 |
| DOI | 10.3366/E1364980909000894 |
This paper concerns certain of the conditions that make law possible and distinctive as a social practice; and it concerns how changes in these conditions are leading to the transformation, and perhaps even the endangerment, of law as a social practice, at least sometimes and in some places. To talk about the conditions that make law possible as a social practice is immediately to move to the most venerable and the most perennially contested questions of legal theory. Two in particular stand out.
The first question concerns the authority of law. Law is not law in any recognisable sense unless it operates with a law-like authority; that is to say, unless it exercises normative force, its precepts acknowledged as valid and actually prevailing in circumstances where they seek to intervene in social life and to influence individual and collective behaviour. The authority or normative force of law in turn depends upon external and internal factors – upon both its generative criteria and its method of self-organisation. For law to be authoritative it must, first, have come about in a way that lends it authority, and it must, secondly, develop internal systemic criteria sufficient to enable the effective articulation and exercise of that authority.
As regards external, generative criteria, we need to ask what conditions have to be fulfilled for something to count as law rather than non-law – whether by non-law we mean some pretence or failed attempt at law or some other species of normative order such as custom. Is the test of basic legal validity satisfied, as the legal positivists would hold, where a legal rule has the proper social pedigree – where it derives from a duly socially recognised and accredited source? And if so, who gets to perform the due accreditation – the sovereign in person, the key officials of the legal system, or the people in general, and how generous and inclusive are the accreditation criteria they might use? What, in other words, counts as an object of due accreditation by the accrediting subject? Are the relevant objects located only at the fulcrum of the legal order – the secondary rules of law-making, law-interpretation and law-amendment
H L A Hart,
See, for example, J L Coleman and B Leiter, “Legal positivism”, in D Patterson (ed),
On the dual challenge to positivism, from both morality-based and pragmatic, outcome-based theories of law, see J Waldron, “How judges should judge” (2006) 23(13) New York Review of Books 54.
As for internal arrangement, how does the law, however externally validated, organise, accomplish, adapt, sustain and justify itself as a legal order, as a system of interconnected rules? Of the many telling contributions that Neil MacCormick
Neil MacCormick was the author's immediate predecessor in the Regius Chair at Edinburgh.
has made to jurisprudence, perhaps his most marked and most sustained lies precisely in this area;This was the subject of MacCormick's own inaugural lecture, subsequently published as “Law as institutional fact” (1974) 90 LQR 102. It is also the subject of
MacCormick,
Or, as MacCormick terms them, “institution-agencies, institution-arrangements and institution-things”: see
A second key question as to the possibility of law concerns its meaning. For law to be law we not only need some test of its validity and self-organisation but also of its signification. The very depth and scope of law's authority speaks to the unrivalled scale of its social ambition to provide a form of practical reason purporting to tell us prospectively what to do, or at least what is permitted or what is prohibited, as well as retrospectively whether what we have done is required, permitted or prohibited. But in order to fulfill its audacious conduct-shaping and conduct-appraising purpose, law has to communicate effectively what it means. What are the ingredients of legal meaning? How do we construe legal provisions – typically general common law rules or abstract statutory provisions or weighty but non-categorical constitutional principles – such that they fill out the necessary semantic space and fill in the necessary decisional space as operational legal conclusions? How do we distinguish the right meaning of law from its wrong meaning; or, if we find the idea of “right” meaning epistemologically overstated, how do we get from the ineffective or incomplete meaning of law-in-the-abstract to the effective and complete meaning of law-in-application? Again answers differ depending upon how much, in a positivist spirit, we want our methods of interpretation to stick to the duly accredited sources and already deposited materials of the law, and how much we feel it necessary or desirable to go beyond them, whether in terms of morally informed evaluation and refinement,
See, for example, R Dworkin,
See, for example, R Posner,
M Galanter, “Why the ‘haves’ come out ahead: speculations on the limits of legal change” (1974) 9 Law & Society Review 95.
In the present inquiry, however, I do not want to focus on either of these questions and the constitutive criteria of law to which they refer. I address directly neither authority nor meaning but another, if intimately related, aspect and constitutive condition of the “lawness” of law, namely law's situated quality. Just as law, in order to meet the conditions of being law, must both authorise
William Twining, himself an influential early figure in the investigation of this third question, has written perceptively on the reasons for its comparative neglect in the Western legal academy: see W Twining, “General jurisprudence”, in M Escamilla and M Savedra (eds),
My argument proceeds in a number of stages. First, at a philosophical level, I want to explain why and in what ways the situated quality of law is as much a necessary and defining condition as are the qualities of authority and meaning, and this despite the fact – indeed partly because of the fact – that situatedness tends to be taken for granted. I also want to suggest, however, that, for all its taken-for-granted character, law's effective self-situating remains both a constraining and a fragile accomplishment. Secondly, I want to indicate how the situatedness of law in space and time has followed a certain pattern in the modern age, and in the age of the modern state in particular. More specifically, when we seek to discover what is most distinctive to law in the age of the modern state, we shall see that a large part of our answer, including some obvious and well-remarked things but also some rather less obvious and less well-remarked things, derives from the situatedness of state law and its relationship to otherwise situated law types. Indeed, an examination of the background pattern of law's situating co-ordinates tells us not just about the particularity and the finite quality of a dominant state law but also, crucially, about the peculiar and peculiarly supportive relationship we find across the modern legal constellation more generally between the particular and the universal, and indeed between the finite and the infinite. Thirdly and finally, I want to say something about how the shift away from the centrality of state law that we are witnessing today under conditions of globalisation also calls into question many of the qualities associated with the spatio-temporal co-ordinates of state law, and in so doing vividly exposes the always precarious quality of law's...
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