Fernanda Pirie, Law Before Government: Ideology and Aspiration, 30 Oxford Journal of Legal Studies 207 (2010). Sean Coyle The question of the nature of law lies at the heart of jurisprudence. At the present day, the major sources of debate on the question revolve around acceptance or otherwise of 'legal positivism' and associated doctrines of analytical jurisprudence. Do we reveal the nature of law when we clarify the conceptual presuppositions of certain social practices? Must theories of the nature of law be 'neutral', 'descriptive' or 'detached'? Or are social practices essentially 'interpretive', so that the nature of law is only revealed when it is expounded as the expression of a moral or political idea? How, indeed, are we to tell whether analytically pleasing distinctions (such as that between law and morality) genuinely clarify the nature of the object under investigation (law), rather than obscuring it? These debates are clearly capable of exerting their own fascination; but one might suspect them of diverting attention from the traditional concern of jurisprudence, which is to elucidate the nature of law as a social institution, and to throw light upon its place within the human condition. Such inquiries stimulate a specific interest in the significance of law as a distinctive type of social ordering. This is a dimension of understanding that is as lost upon modern critics of positivism as it is upon positivists themselves: for example, in his recent book Justice in Robes, Dworkin argues that philosophical significance attaches only to the substance of legal doctrine, there being no philosophically interesting issues relating to law as a social institution (Justice in Robes, Harvard, 2006, 2-3). Pirie's article is refreshing because it avoids the recent debates in favour of an investigation into the nature of law as a social and intellectual phenomenon. Law is not simply a set of practices or a body of norms, but an intellectual system (207). Her concern is to explore the idea of law in terms of its form. We might initially suppose that law can be defined in opposition to forms of negotiated order: a supposition that draws a close association between law and government. Is this anthropologically valid? According to Pirie, law is to be identified 'neither by reference to the negotiation of order, nor by reference to government. It is, rather … identified by its expressive and aspirational qualities and its ideological claims to promote order and justice.' (id.) The central question is then how law is different from other forms of ideological system (208). Continue reading "The Nature of Law and the Human Condition"
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