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Legal Theory Today
A Sociology of Jurisprudence

Legal Theory Today
Founding Editor
John Gardner, Professor of Jurisprudence, University College, Oxford TITLES IN THIS SERIES Law in its Own Right by Henrik Palmer Olsen and Stuart Toddington Law and Aesthetics by Adam Gearey Law as a Social Institution by Hamish Ross Evaluation and Legal Theory by Julie Dickson Risks and Legal Theory by Jenny Steele Forthcoming titles: Law after Modernity by Sionaidh Douglas-Scott Law and Ethics by John Tasioulas Law and Human Need by John Stanton-Ife

A Sociology of Jurisprudence
Richard Nobles and David Schiff

OXFORD AND PORTLAND OREGON 2006

Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, Oregon 97213–3644 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Web Site: www.isbs.com © Richard Nobles and David Schiff jointly and severally 2006 Richard Nobles and David Schiff have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, Salter’s Boatyard, Folly Bridge, Abingdon Road, Oxford OX1 4LB Telephone: +44 (0)1865 245533 or Fax: +44 (0)1865 794882 e-mail: mail@hartpub.co.uk WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 13: 978–1–84113–598–4 (paperback) ISBN 10: 1–84113–598–4 (paperback) Typeset by Hope Services (Abingdon) Ltd. Printed and bound in Great Britain by TJ International, Padstow, Cornwall

Contents

Preface Chapter 1 Chapter 2 Chapter 3 Locating Jurisprudence Sociologically Understanding Closure A Sociological Understanding of Natural Law and Common Law Theory: Constructing the Conditions for Legal Positivism Law’s Justice: Beyond Dworkin Law’s Closure: Beyond Kelsen Law’s Politics: Criticising Critical Legal Studies Law as Sociological Object

vii 1 19

49 91 127 163 211 231 243

Chapter 4 Chapter 5 Chapter 6 Chapter 7 Bibliography Index

v

Preface

In this book we examine the implications of a sociological theory, systems theory, most particularly as set out in the writings of Niklas Luhmann, for jurisprudence. This theory provides a sociological explanation for the interminable1 debates amongst and between different schools of jurisprudence on topics such as the origin and/or source of law, the nature of law’s determinacy or indeterminacy, and the role of justice. Our project is to continue the work begun by Luhmann in his book, Das Recht der Gesellschaft.2 Jurisprudential theories typically take as their object the unity or identity of law.3 What is it that unites law, and distinguishes it from other aspects of social life? Even the most critical of theories accept that law is something different from other things that it is not, although answers as to this difference vary between the respective theories.4 What we attempt to do is demonstrate the explanatory power and sociological enterprise of systems theory by applying it to a range of modern jurisprudential writings on the nature or basis of the unity or identity5 of law. Alexy, 2002, suggests that the possible points of disagreement between natural law theorists and legal positivists can be represented in 64 separate theses. However, his estimation reflects his rather generalised analysis, and only relates to those two principal types of theorist. At a more particular level, when including other theorists, the possibilities...
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