The Legal System between Order and Disorder

The Legal System between Order and Disorder

The Legal System between Order and Disorder

The Legal System between Order and Disorder

Synopsis

How have legal philosophers systemized law, and what types of assumptions have they made in undertaking this task? In what sense is law a system, and how is it maintained as such? This translation of a French book answers these two core inter-related questions by surveying and analyzing the theories of a number of important European legal philosophers as well as offering its own distinct theory for viewing the law as a system.

Excerpt

After tracing in Chapter 1 the main outlines of the general problematic of systems, we examined in Chapter 2 the constitutive elements of legal systems and in Chapter 3 the variety of relations that structure them. We have now to explore the peripheries of systems, investigating their environment. New and important questions arise, whose solutions will particularly help to clarify some of the problems dealt with earlier. Are legal systems closed or open? Are they self- or hetero-regulated? Do they maintain relations with other normative systems and, particularly, other legal systems? Each of these questions is widely debated. We shall therefore begin by summarizing, in a first section, a radical idea proposed, by Luhmann: the conception of a legal system as autopoietic, that is, as a system that is not only self-organized but even self-produced. We shall propose to substitute for this extreme view the conception of law as a game -- a model already employed in the preceding chapter. As a game of order and disorder, determinism and indeterminism, a legal system appears to be endowed with a 'relative autonomy' in relation to society. This relative autonomy is undoubtedly the necessary condition for a legal order's exercise of the functions peculiar to it. Those functions will be reviewed in a second section. However, since law never acts in a 'social void', the effectiveness of its interventions will depend on its mode of articulation to society. in a third section we shall study the interchanges between legal system and social order and there we shall bring out the concept of 'infra-law (infra-droit)'. This theme will be continued in a fourth section with a discussion of legal change in its various relations to social change. Then, in fifth and sixth sections, we shall try to unravel the complex tangle of relations woven between legal systems and other normative systems, as well as between the various legal orders.

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