Conceptual Collisions

Abstract

This review essay considers two recent attempts to produce a concept of transnational, or loosely speaking, global law, in Keith Culver and Michael Giudice, Legality’s Borders: An Essay in General Jurisprudence, and Detlef von Daniels, The Concept of Law from a Transnational Perspective. Both works seek to expand upon Hart’s approach to finding a concept of purely municipal law, and both also differ from legal pluralism. Their argument with legal pluralism is not with the identification of a plurality of legal phenomena, but with a diversity of concepts of law in the theory covering those phenomena. The subject matter of the essay naturally provides a setting to reflect more widely on the use of concepts in theory formation, on the relationship between theoretical-conceptual understanding and empirical data, on the isolation of subjects through discrete concepts, and on the relationship between global and municipal legal phenomena. A further theme encountered is the nature of engagement with academic traditions, which is key to the link developed by von Daniels between Habermas and Hart. The ways in which each of the two projects are undertaken through processes of subtracting from Hart, discovering more in Hart, and adding to Hart, are examined in detail. The suggestions of joining or linkage between different types of legal systems (or orders, or regimes) is treated as having a particular significance in the respective attempts of the authors to demarcate a grouping of distinctively legal phenomena, as opposed to other social or moral phenomena. However, questions concerning the role state law occupies in the web of interconnections between different forms of legality, and whether greater harmony or more intense contestation might occur across those forms, remain to be answered. As does the puzzle which both projects accuse Tamanaha’s legal pluralism of failing to deal with: how a broad collection of diverse phenomena can possess analytical or explanatory bite. In conclusion, the essay considers the development of theory as depending not simply on the elucidation of concepts but also on the rejection of concepts that collide with empirical data; and suggests that a singular concept of law may have to be abandoned by a mature theory of law.

Keywords: global law, transnational law, conceptual analysis, concept of law, legal pluralism, academic traditions, Hart, Habermas, Tamanaha