- In the following pages, I shall use dichotomies and antinomies interchangeably to describe the various dual characteristics of law.
- Dichotomies of this kind can also be found in the ancient philosophers' reflections on the structure and order of things, the best known example of which is Aristotle's distinction between corrective and distributive justice. However, the dichotomies discussed in the coming pages are related to different features of the relationship between modern law and society, which is why it is more fruitful to explore them in the context of the Enlightenment. For a discussion see T.D. Barton, “Troublesome Connections: The Law and Post-Enlightenment Culture” (1998) 47 Emory Law Journal 163–236.
- R. Banakar, Merging Law and Sociology: Beyond the Dichotomies of Socio-Legal Research (Berlin/Wisconsin, Galda & Wilch, 2003).
- A. Norrie, Law and the Beautiful Soul (London, GlassHouse Press, 2005), ix.
- Ibid, 28–31.
- Ibid, 53.
- Ibid, 30.
- Ibid, 2.
- Ibid, 3.
- A. Norrie, Law and the Beautiful Soul (London, GlassHouse Press, 2005), 180; see also Chapter 10.
- Ibid, x.
- Ibid.
- Page numbers appearing after quotation marks in the text refer to Pavlakos's collection. References to secondary literature are given in footnotes.
- R. Alexy, Theorie der juridischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juridiscen Begründung (1983) translated by Neil MacCormick as A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Oxford, Clarendon Press, 1998).
- G. Radbruch, Rechtsphilosophie III. Vol 3 of the Gustav Radbruch Gesamtaugsgabe (A Kaufman (ed), Heidelberg, CF Mueller, 1990), and “Gesetzliches Unrecht und übergesetzliches Recht” in (1946) 1 Süddeutsche Juristenzeitung 105–108.
- This interpretation is based on Raz's reading of Alexy and Radbruch. See Ch. 1 in Pavlakos's collection, at 29.
- Bongiovanni et al argue in Pavlakos's collection that Alexy finds that Habermas's claim to correctness oversimplifies the structure of the regulative speech act by constructing it as fulfilment of norms. Therefore, Alexy distinguishes between “normative speech acts” and a “normative statement (a judgement of value or obligation)”. See Ch. 13 in Pavlakos's collection, at 277.
- R. Alexy, “On the Thesis of a Necessary Connection between Law and Morality: Bulygin's Critique” (2000) 13 Ratio Juris 138–47, 138.
- The claim to correctness raised by the legal acts can be denied, a fact which does cause theoretical difficulties for Alexy. As has been pointed out by Bulygin, the claim to correctness cannot be the necessary defining requirement of a legal system if it is possible not to raise the claim. Alexy, however, explains that legal systems which fail to fulfil the claim to correctness are “faulty legal systems” and legal norms which fail to raise the claim are “faulty legal norms” (Alexy, supra n. 18, 146). See also E. Bulygin, “Alexy's Thesis of the Necessary Connection between Law and Morality” (2000) 2 Ratio Juris 133–7.
- Cook's chapter explains how Alexy and Habermas differ in their understanding of the context-transcending components of law, which opens law up to internal criticism.
- Alexy, supra n. 18, 144.
- Ibid, 143.
- Ibid, 143.
- See Alexy, supra n. 14, 214ff.
- These constraints include the strict formal procedural rules of legal proceedings, time limits, the involuntary participation of the parties in a trial, their interest in discovering the truth, and not to forget legal reasoning's relationship with valid law which excludes certain questions from the domain of debate and examination. See E. Melissaris, “The Limits of Institutionalised Legal Discourse” (2005) 18 Ratio Juris 464–83.
- R. Alexy, “Law and Correctness” (1998) 51 Current Legal Problems 206, quoted by Sieckmann on p. 197 in Pavlakos's collection.
- Norrie, supra n. 4, 16.
- R. Alexy, The Arguments from Injustice: A Reply to Legal Positivism (Oxford, Clarendon Press, 2002).
- Ibid, 3, quoted by Raz in Pavlakos's collection, at 18.
- Alexy, ibid.
- The resemblance with Kafka's sketch Before the Law is more than accidental. In Kafka's sketch, “the man from the country”, who is seeking justice, wastes a lifetime awaiting the permission of “the doorkeeper” to gain entry into law. F. Kafka, The Transformation (‘Metamorphosis') and Other Stories (Harmondsworth, Penguin, 1992), 165.
- J. Habermas, The Theory of Communicative Action Vol. I. (Boston, Beacon Press, 1984).
- F. Tönnies, “The Concept of Gemeinschaft” (orig pub 1925) in W.J. Cahnman and R. Heberle (eds), Ferdinand Tönnies on Sociology (University of Chicago Press, Chicago, 1971), 62–72.
- E. Durkheim, The Division of Labor in Society (New York, Free Press, 1984), orig pub 1893.
- Habermas is concerned with the way system, ie the steering media of money and power, penetrates into the fabric of lifeworld, ie the intersubjectively shared background taken for granted by participants in communicative action, reifying human relations. This reification destroys the potential of lifeworld to organise social action around shared values, giving meaning to social life and integrating highly differentiated and pluralistic modern societies. This leads Habermas to argue for procedural rationality in law, ie a type of rationality that is not embedded in any particular value system but rests on the procedural character of the law. In this sense, the legal system becomes an instrument for co-ordinating social action and reproducing the modern state and economy that are anchored in, but uncoupled from, the lifeworld. Law is therefore given the double task of adapting to and surviving in a complex society while co-ordinating social action by mediating between system and lifeworld. See Habermas, supra n. 32.
- Niklas Luhmann is among the few social scientists who have sought to construct a sociological theory which supports the separation thesis. According to Luhmann, law is normatively closed, constituting itself self-referentially by referring to its own previous communications. At the same time, it is cognitively open and in interaction with its environment which includes other social systems such as politics and economy. Indeed, Luhamann stresses that law's normative closure is a condition for its cognitive openness. Although law is normatively closed and, thus, separate from other spheres of social action, it can nevertheless observe other systems and address their concerns within its own normative structure (Luhmann calls this “structural coupling”). See N. Luhmann, Law as a Social System (K. Ziegert trans) (F. Kastner, R. Nobles, D. Schiff, R. Ziegert eds), (New York, OUP, 2004).
- Norrie, supra n. 4, x.
- The notion of positive law as it is used here is the same as Norrie's modern liberal law.
- M. Davies et al, Criminal Justice: An Introduction to the Criminal Justice System in England and Wales (3rd edn) (London, Pearson/Longman, 2005), 155.
- Home Office Circular HPAN-628GM4 posted at http://www.knowledgenetwork.gov.uk/HO/circular.nsf, accessed 28 January 2008.
- “Stop and Search” in The Guardian 31 January 2008.
- V. Dodd, “Asian Men Targeted in Stop and Search“, The Guardian 17 August 2005, posted at http://www.guardian.co.uk, accessed 28 January 2008.
- According to Bowling and Phillips, “the concept of ‘reasonable suspicion’ is frequently absent in many instances of the use of police stop/search powers“; instead, decisions to use such powers are often based “on generalisations and stereotypes particularly where levels of discretion are highest”. B. Bowling and C. Phillips, “Disproportionate and Discriminatory: Reviewing the Evidence of Stop and Search” (2007) 70(6) Modern Law Review 936–7.
- Supra n. 41.
- Banakar, supra n. 3.
Legal Ethics
Volume 10, 2007 - Issue 2