THE INSTITUTIONAL NATURE OF LAW1
| Date | 01 September 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01426.x |
| Published date | 01 September 1975 |
| Author | J. Raz |
THE
MODERN
LAW
REVIEW
Volume
38
September
1975
No.
5
~-
THE INSTITUTIONAL NATURE
OF
LAW
I
INTRODUCTION
MY
purpose is
to
outline one view concerning the identifying
features of municipal legal systems. Analytical jurisprudence deals
with three main problem areas. One concerns the special features of
the judicial process and of judicial reasoning. The second encom-
passes the discussion of legal concepts
(e.g.
rights, duties, owner-
ship, legal person) and of types of legal standards (rules and
principles, duty imposing standards and power conferring standards).
The third range of problems revolves round the idea of
a
legal system
and the features which distinguish such systems from other norma-
tive systems.
It
is with some of the problems belonging to this area
that
I
shall be concerned.
It may be useful to begin by confessing to some of my prejudices
and to make explicit
a
few of the assumptions underlying my
reflections. One of them can be dubbed the assumption of the
primacy of the social. We are familiar with the distinction between
legal systems which are in force in a certain society and those which
are not. There is a legal system in force now in Great Britain and
there
is
one in force in Norway. But the legal system once in force
in the Roman Republic is no longer in force, nor is the legal system
proposed by a group
of
scholars
for
country
X
in fact in force in
that country. Whether
or
not a system is
in
force in
a
society depends
on its impact on the behaviour of people in the society. The precise
nature of the criterion determining
if
a
system is in force is a dis-
puted issue with which
I
will not be concerned. But whatever it is,
it
concerns the attitudes and responses of all
or
certain sections in
the society to the legal system:
Do
they know
it,
do
they respect
it, obey it? etc. This seems to me to be a very significant fact. The
reason is that whether
or
not
a
system is in force
is
not just another
question about a legal system comparable with questions such as:
Is
it a Socialist
or
a Capitalist legal system?
Is
it
a
Federal system
or
not? etc. We identify the question of whether
or
not the system is
in force with the question of its existence. A legal system exists
if
*
This
is an expanded version
of
a
paper read in
a
seminar in the
faculty
of
law.
the University
of
Oslo
in
May
1974.
489
VOL.
38
15)
1
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