The Creation and Use of Concepts of Law when Confronting Legal and Normative Plurality

This essay considers how different concepts of law are created for, and work within, different theories of law. It tackles two related problems. First, the quest to establish a concept of law in a narrow analytical manner becomes even more elusive when complications are introduced from encountering strains of legal and normative plurality which appear to have plausible claims to possess some of the key characteristics conventionally attributed to municipal law. Secondly, there is the deep problem of the mutual dependence of theoretical value and subject-matter identity. Evaluating theoretical work requires a reckoning of the value of the theory in illuminating the subject matter which the theory addresses, but the precise identification of the subject matter is standardly regarded as being produced by the theory. Section 1 of the essay introduces the basic point that a concept of law within a theory of law can be adjusted to fit the theory’s aims in just the same way that the scope of a theory can be expanded or contracted by adding to or deleting from its fundamental axioms. Section 2 commences with some illustrations of this basic point. Once the basic point is established, section 3 reviews a selection of theoretical approaches to law, drawing out the particular aims of each theory and demonstrating how the component elements of a concept of law are constructed in each case to meet those aims. Section 4 expands the material surveyed thus far, and develops the commentary on the specific problem of confronting legal and normative plurality. Two pervasive issues running through the aims of the theories reviewed in section 3 are picked out for special mention here. One is the distinction between legal and non-legal normative orders; the other is the relationship between state law and non-state law. A principal thesis advanced in sections 3 and 4 is that concepts of law will be created not simply as an outcome of intellectual inquiry upon the variety of phenomena that call for clarification and illumination. Each concept will be shaped by the theoretical use to which it is put in advancing the particular agenda of the theory for which it is constructed. Section 5 broadens the discussion to consider a number of metatheoretical concerns, covering relations between analytical and empirical, philosophical and sociological; the use of theory to enhance understanding; the possibility of perverting theoretical inquiry through the use of concepts; and the recognition of multiform and multiple concepts. A concluding section then offers some provocative suggestions on the most fruitful theoretical course to take if legal theory, and our concepts of law, are to advance an understanding of legal and normative plurality.