REVIEWS

Date01 September 1971
DOIhttp://doi.org/10.1111/j.1468-2230.1971.tb02351.x
Published date01 September 1971
REVIEWS
THE
CONCEPT
OF
A
LEGAL SYSTEM. By
J.
RAZ. [Oxford: the
Clarendon Press.
1970.
208
and (bibliography and index)
4
pp.
22.25.1
DII. RAZ has written a remarkable book,
a
book of depth, penetration and
originality. An introduction to the study of the systematic nature of law, it
krapples with such central problems of analytic theory
as
“what are the.
criteria for the existence of
a
legal system?” “which laws form
a
given
system?” and
“is
there
a
structure conimon to all legal systems?” These
problems
of
existence, identity and structure, claims Dr. Raz, have been largcly
neglected by legal philosophers on account of one serious error. Thinking
that the clue to the understanding of tlie concept of law lay in the definition
of
a
law,
they assumed without discussion that the analysis of
a
legal
system
followed without difficulty. Kclscn was the first to insist on the impossibility
of grasping the nature of law if we limit our attention to the isolated rule.
Dr.
Raz
goes even further and argues that
a
theory of legal system is a
prerequisite of any adequate definition of a law.
This, then, is
a
work falling squarely within the walls
of
analytic juris-
prudence.
Accordingly it begins historic;dly, by examining previous thcorics
of
the analytic school. Austin’s theory
of
law is painstakingly scrutinised,
with obvious, and some less obvious, points of criticism. We pass
to
a dis-
cussion
of
the elements of
a
theory of norms, where Bentharn’s and Kelsen’s
views are dissected and compared. Turning next to the individuation of laws,
we begin to see rnorc clearly the link between
‘‘
what is
a
law?” and “what
is a legal system?’
as
the spotlight is still focuscd on ICelsen and Bentha~n
and
on
tlie part played (if any) by tlie basic norm and by chains
of
validity.
Having found Bentliani, Austin and ICelsen wanting, Dr. Raz oritlincs his own
constructive suggestions about the analysis
of
legal systems as systems of
norms and systems of law-suggestions which owe much to, but differ in
significant respects from Hart’s theory of law, which in its turn
is
subjected to
illuminating criticism. Distinguishing first between
IRWS
and orders, Raz
sltetchcs out an analysis (based largcly on IIart’s) of social rules imposing
obligations, and follows it by drawing distinctions between different cate-
gories of laws, liere particularly going further than Hart and drawing
our attention to important distinctions not brought out by Hart. The major
element of the work concluded, we turn finally to
a
chapter
011
the identity of
a legal system (in which the distinction between continuing and
a
niornentary
legal systems is well brought out) and one
on
the existence of legal systems
(in which penctrating questions are raised about what constitutes obedience
to law).
Throughout, in its rnorc historical and critical chapters no less than in the
more original sections, the work provides useful insights into legal theory.
For example, the critique of Austin brings out most clearly the difference
between sovereignty and superiority, showing that being the object of habitual
obedience
is
by no nieans the same thing
as
being superior,
i.0.
having the
power to inflict harm for disobedience. On the other hand, the value of
Austin’s attempt
to
explain law in terms of social facts
is
emphasised, as is
the fact that this was overlooked by such critics as Dicey and Bryce and
was perhaps first appreciated only by Salmond. The difficulties inherent in
Kelsen’s theory, together with the contradictions into which he has been led,
are well brought out; and the discnssion which follows, on chains of validity,
nicely cxplains the similarities and differences bctween Austin and ICelsen.
586

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