Paradoxes and Inconsistencies in the Law by Oren Perez and Gunther Teubner (eds)
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00650.x |
| Published date | 01 May 2007 |
| Author | David Schiff,Richard Nobles |
| Date | 01 May 2007 |
REVIEWS
Oren Perezand GuntherTeubner (eds), Paradoxes and Inconsistencies in the Law,
Oxford and Portland, Oregon: Hart Publishing, 2006, pb d30.
This is a timely book of essays.
1
Most of us who currently write about law in an
academic manner are concerned with what so often appears as inconsistency,
incompatibility, incoherence, contradiction, tautology, or even antinomy and
paradox, as it pertains to either a body of legal rules and doctrines, or principles,
or procedures, or in some way or other, law itself. There are a lot of reasons for
this, from the mundane, namely that since legal rules, regulations and practices
operating in the ¢eld of law are so numerous it is not surprising that many now
appear to throw up problems of inconsistency, contradiction and even paradox,
throughto the esoteric, namely thatwithout an overarching universal agreement
about values the chances of coherence in law, or any other discipline, become less
and less likely. However, considering inconsistency onthe one hand, and paradox
on the other, are not the same exercise.This book of essays endeavours to consider
both, andto do so not only in terms oflaw in general (generic paradoxes) but also
within more particular areas of law. And, in order to pursue this task, one of the
editors, Oren Perez, attempts to categorise the nature of paradoxes as they might
apply to or within law, while introducing the essays in this book.We will repeat
his exercise here. We will consider his categorisation of paradoxesand see howthe
various essays explore the di¡erent categories that he identi¢es.
Paradox, in the many senses adopted in this book, is bei ng used to explore law’s
groundlessness. The claim that lawlacks any fundamental grounding is common
to muchof what is generallyreferred to as critical theory, deconstruction, or post-
modern approaches to law. This assumption is not universally shared in legal
scholarship, and is certainly not an assumption articulated in legal practice.The
lack of a universally accepted and conclusive account of some coherent basis for
law does not mean that the huge amount of l egal scholarship and practice that
seeks to account for law by reference to sources, principles, politics, or society, is
necessarily misconceived. However, in order to explore the potential of analysis
constructed a round and through paradoxone needs to engage with the possibi lity
that law is indeed ultimately groundless. From this starting point one can then
explore the potential for ideas involving self-contradiction in some formor other,
grounded in paradox, to explain how and why law exists, and evolves, despite its
lack of a nycohe rent foundation.
The groundlessness of law is a feature uncovered by many di¡erent kinds of
analysis. American Realism exposed the contradictory qualities of legal rules
and principles by demonstrating how they did not in themselves operate as rules
or principles, in Hart’s terms, their penumbra of uncertainty was their core, they
1Paradoxesand Inconsistencies in theLaw, O. Perezand G. Teubner (eds) (Oxfordand Portland, Oregon:
Hart Publishing, 2006).
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(3)MLR 505^522
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