Legality's Borders

English-speaking jurisprudence of the last 100 years has devoted considerable attention to questions of identity and continuity. H.L.A. Hart, Joseph Raz, and many others have sought means to identify and distinguish legal from non-legal social situations, and to explain the enduring legality of those typically dynamic social situations. Focus on characterization of legality associated with the state, the most prominent legal phenomena available, has led to an analytical approach dominated by the idea of legal system and analysis of its constituent norms. Yet as far back as Hart's 1961 encounter with international law, the system-focussed approach to legality has experienced moments of self-doubt. From international law to the new legal order of the European Union, to shared governance and overlapping jurisdiction in transboundary areas, what at least appear to be instances of legality are at best weakly explained by approaches which presume the centrality of legal system as the mark and measure of social situations fully worthy of the title of legality. What next, as phenomena threaten to outstrip theory? Legality's Borders: An Essay in General Jurisprudence explains the rudiments of an inter-institutional theory of law, a theory which finds legality in the interaction between legal institutions, whose legality we characterise in terms of the kinds of norms they use rather than their content or system-membership. Prominent forms of legality such as the law-state and international law are then explained as particular forms of complex agglomeration of legal institutions, varying in form and complexity rather than sheer legality. This approach enables a fundamental shift in approach to the problems of identity and continuity of characteristically legal situations in social life: once legality is decoupled from legal system, the patterns of intense mutual reference amongst the legal institutions of the law-state can be seen as one justifiably prominent form of legality amongst others including overlapping forms of legality such as the European Union. Identity over time, on this view, is less a fixed set of characteristics than a history of intense mutual interaction of legal institutions, comparable against similar other agglomerations of legal institutions.

KEITH C. CULVER is Professor and International Chair in Generating Eco-Innovation, in the UniverSud Paris. From 1997 to 2009 he taught at the University of New Brunswick, Fredericton, where he was director of the Centre for Social Innovation Research. He holds degrees from the University of Victoria (BA Hons), McMaster University (MA), and the University of Guelph (PhD), and has held visiting fellowships at the universities of Edinburgh, Stirling, and Oxford. His research at the intersection of law, philosophy, and technology has ranged from work on e-democracy to investigation of fisheries and aquaculture.

MICHAEL GIUDICE is Assistant Professor of Philosophy at York University, Member of the Graduate Faculty at Osgoode Hall Law School, and Associate of the Jack and Mae Nathanson Centre on Transnational Human Rights, Crime, and Security. He has studied at both the University of New Brunswick (BA Hons) and McMaster University (MA, PhD), and was also a Visiting Student in Analytic Legal Philosophy and a Commonwealth Scholar at the University of Oxford. He has published several articles in the philosophy of law, and is currently co-editing a three volume collection on contemporary legal theory for Ashgate Publishing.