The Legal Framework: Institutional Normative Order

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1 University Press Scholarship Online You are looking at 1-8 of 8 items for: keywords : institutional normative order The Legal Framework: Institutional Normative Order acprof:oso/ This book argues that norms belong within normative orders, of which some are, and some are not, institutional in character. A principal example of institutional normative order is law as this appears within contemporary states municipal positive law. Law as institutional normative order is conceptually distinct from morality and from politics. By focusing on an idea of institutional normative order, one negates the existence of any analytically necessary nexus between law and state. Law is institutional normative order, and state-law is simply one form of law. Conversely, the state is a form of territorial political order with some internal power-structure and power-relations, and the law-state is simply one form of state. This opens the question what are the possible, and the proper, relationships between state and law. Geology of the European Union Deirdre Curtin in Executive Power of the European Union: Law, Practices, and the Living Constitution Published in print: 2009 Published Online: February 2010 ISBN: eisbn: acprof:oso/ This chapter begins with a discussion of scope of the power that is exercised by actors and institutions under the auspices of the European Union (EU). It then outlines the focus of the book: the shadowy side of EU decision-making the part that is not so visible even in the unwritten constitution, and the role multiple actors play at different levels and Page 1 of 5

2 wearing different hats. It addresses questions such as who are they, what are they doing, and how can one even begin to structure a debate on their democratic and political embedding within a political system, at which governance level or at multiple governance levels? What is the EU precisely; how can we understand it in holistic terms; and what are these actors, European and national, doing in this context? How can we frame it so as to relate it to the institutional normative order? An overview of the subsequent chapters is presented. Laws and Values: Reflections on Method acprof:oso/ This chapter considers and seeks to rebut possible objections that might be raised to the methods adopted in this book in relation to the study of law and legal concepts, and to the line it takes concerning the possibility of ascribing any kind of scientific status to legal scholarship. A case is developed that supports the methodology of interpretative analytical inquiry intrinsic to the present version of the institutional theory of law. Introduction acprof:oso/ This introductory chapter begins with a discussion of the institutional theory of law, which aims to develop a better understanding of law than other current legal theories offer, starting from a definition of law: Law is institutional normative order. In explaining the elements of the definition, it is first explains norms, and then normative order. Finally, by discussing the institutionalization of normative order, it reaches a grasp of the whole defining phrase institutional normative order. An overview of the subsequent chapters is presented. Page 2 of 5

3 Law and the Constitutional State acprof:oso/ This chapter begins with a discussion of states, then proceeds to a consideration of constitutions as legal frameworks for states, then reflects on the institutions of public law set up by or under constitutions. It presents some preliminary remarks on Civil Society and the State followed by a brief interim conclusion on Law as Institutional Normative Order. Institutions of Law: An Essay in Legal Theory Item type: book acprof:oso/ This book offers an original account of the nature of law and legal systems in the contemporary world. It provides the definitive statement of Sir 's well-known institutional theory of law, defining law as institutional normative order and explaining each of these three terms in depth. It attempts to fulfill the need for a 21st century introduction to legal theory marking a fresh start such as was achieved in the last century by H. L. A. Hart's The Concept of Law. Institutions of Law is written with a view to elucidating law, legal concepts, and legal institutions in a manner that takes account of current scholarly controversies but does not get bogged down in them. It shows how law relates to the state and civil society, establishing the conditions of social peace and a functioning economy. In so doing, it takes account of recent developments in the sociology of law, particularly system theory. It also seeks to clarify the nature of claims to knowledge of law and thus indicate the possibility of legal studies having a genuinely scientific character. It shows that there is an essential value-orientation of all work of this kind, so that valid analytical jurisprudence not merely need not, but cannot, be positivist as that term has come to be understood. Nevertheless, it is explained why law and morality are genuinely distinct by virtue of the positive character of law contrasted with the autonomy that is foundational for morality. Page 3 of 5

4 The State and the Law acprof:oso/ This chapter explains and vindicates in particular the idea that not every state is a law-state. Essential to the argument is the differentiation between law and politics. Law is institutional normative order, whereas politics is an order of power. The state is primarily a political entity, characterized by territoriality and stability in government. That is, a state has territory, and exercises effective government in that territory over the population, all or most of whom are citizens of the state. Typically, states are, or purport to be, nation-states, the process of nation-building having been one of seeking to develop among citizens a common consciousness of shared nationality. The term territorial state is used in the present chapter. Four possibilities with respect to law and state are discussed: the state as law-dependent, the law as state-dependent, state and law as coexistent, and identity of state and law. The Benthamite Constitution Decline and Fall? acprof:oso/ Thinkers like David Hume and Jeremy Bentham questioned why utility is only a residual principle, and argued that our attachment to the principle of utility can be accounted for in terms of human psychology. Rather than calling Bentham himself a legal positivist, this chapter suggests that it is more appropriate to characterize him as an anti-naturalist, building a practical philosophy for law reform and remodelling one element in the traditional descriptive account as an element in his overall project. Legal positivism is in intellectual descent from this or from the strands of Germanic neo-kantian thought that flow into English-language theorizing through scholars such as Hans Kelsen. This chapter considers such thinking particularly in the context of present discussions about Page 4 of 5

5 Benthamite constitution and constitutional reform in the United Kingdom. Institutional normative order and legal pluralism are also discussed, along with the balance between might and right. Page 5 of 5