Abstract
If, then, there are difficulties in the way of identifying law as the province or creation of officials (and particularly of some united elite within officialdom), is there some alternative way in which laws and legal systems can be distinguished from other aspects of the social world? The trouble with any attempt to find one by beginning with the notion of a legal system is that the term “system” is used in so many different, and often imprecise, ways. The most common feature of such usage, however, seems to be the understanding of a system as having something to do with parts in the context of wholes. This introduces an immediate complication because, as mentioned in chapter II, there are at least three different views about the relationship between parts and wholes. Attempts to understand the notion of system are complicated still further by the fact that the term can be understood both statically and dynamically. The static understanding has to do with ordered presentation, the dynamic one to do with procedures and processes.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
The Pur Theory of Law (cit. ch I, n. 2) ch 1, esp pp. 30–36.
The Concept of Law (cit. ch V, n. 40) ch III passim.
Ibid p 116.
Lon L Fuller,The Morality of Law (cit. ch I, n. 18) p 91.
Roscoe Pound, Social Control Through Law (New Haven: Yale University Press, 1942).
The development of “chaos theory” in mathematices. See e.g. Ian Stewart, Does God Play Dice? (Oxford: Blackwell, 1989).
See, particularly, Joseph Raz, The Concept of a Legal System (Oxford: Clarendon Press, 1980)
J W Harris, Law and Legal Science (Oxford: Clarendon Press, 1979).
The Pure Theory ofLaw (cit. n. 1) pp 331–339.
See ch VII, n. 57. For more detail A E Anton and P R Beaumont, Private International Law, 2nd edn (Edinburgh: W Green, 1990) p 775ff.
See G Maher, ‘The Identity of the Scottish Legal System’ 1977 Juridical Review 21.
Articles 65 and 66 of the Netherlands Constitution.
Ibid Article 66.
The Concept of Law (cit. n. 2) p 92.
See G Teubner, Law as an Autopoietic System, trans A Bankowska and R Adler, ed Z Bankowski (Oxford: Blackwell, 1993) which has an extensive bibliography.
The Germanrecht/unrecht does not seem to entirely adequately translated by “legal” and “illegal”. To use “legal” and “non-legal” would, however, probably open the distinction up too much to reflect the kind of binary coding that Luhmann considers to be characteristic of autopoietic system s .
Law as an Autopoietic System (cit. n. 14) p 33.
Ibid p41.
Ibid p 77.
Niklas Luhmann, ‘Closure and Openness: on reality in the world of law’ in G Teubner ed, Autopoietic Law: a new approach to law and society (Berlin: de Gruyter, 1987) at p 340.
Law as an Autopoietic System (cit. n. 14) p 87.
Pure Theory of Law (cit. n. 1) p 172.
Ibid p 174.
Postgraduate Seminar, University of Edinburgh, 1991. See also Teubner, Law as an Autopoietic System (cit. n. 14) p 45.
Erasmus Seminar in Legal Theory, Brussels, 1992.
Law as an Autopoietic System (cit. n. 14) p 105ff.
R v Ahluwahlia [1992] 4 All E R 889. Kirinjit Ahluwahlia was, nonetheless, sent for retrial on the basis that whether she was of diminished responsibility had not been properly considered at the original trial and she was subsequently convicted only of manslaughter. Sarah Thornton failed in her first appeal ([1992] 1 All E R 302) but was retried (after a reference by the Secretary of State to the English Court of Appeal and at its direction) in May 1996 and similarly found guilty only of manslaughter. Having already served more than five years in prison, the judge considered this to have been an adequate sentence and she was released.
See ch II and ch VIII respectively.
Erasmus Seminar (cit n. 24).
Boaventura de Sousa Santos, ‘Law: a map of misreading’ (1987) 14 Journal of Law and Society 279.
Id.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1997 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Attwooll, E. (1997). And What Kind of System?. In: The Tapestry of the Law. Law and Philosophy Library, vol 26. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8800-3_9
Download citation
DOI: https://doi.org/10.1007/978-94-015-8800-3_9
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-4767-0
Online ISBN: 978-94-015-8800-3
eBook Packages: Springer Book Archive