Law in Modern Society

This addition to the Clarendon Law Series offers a comprehensive account of, and contribution to, the study of law in modern society. Written by a leading academic in the field, this book examines the underlying idea that the legal system is a highly developed social system which has a distinctive character and structure, and which shapes and influences behavior.

Denis Galligan is Professor of Socio-Legal Studies and Director of the Centre for Socio-Legal Studies at the University of Oxford. He is also a Fellow of Wolfson College, Oxford. He teaches law and society, administrative law and legal and social theory.

Preface

x

Table of statutes

xiii

Introduction

1

(172)

1 Setting the bounds of law-and-society

4

(23)

1.1 Taking law seriously

4

(3)

1.2 From analytical jurisprudence to law-and-society

7

(6)

1.3 Hart on social explanation

13

(2)

1.4 Beyond Hart

15

(3)

1.5 From law-and-society back to analytical jurisprudence

18

(2)

1.6 Elements of a modern legal order

20

(2)

Notes

22

(5)

2 Approaches to law in society

27

(20)

2.1 Understanding law in society

27

(1)

2.2 The subject of study in law-and-society

28

(4)

2.3 The aims of law-and-society

32

(2)

2.4 Four methodological principles

34

(4)

2.5 Law as a closed system

38

(5)

Notes

43

(4)

3 Law as social rules

47

(23)

3.1 Introduction

47

(1)

3.2 Hart's approach to law as social rules

47

(3)

3.3 Nature of social rules

50

(3)

3.4 Contextual contingencies of social rules

53

(2)

3.5 Three types of rules

55

(3)

3.6 Defending rules

58

(3)

3.7 Strengthening the case for contextual contingencies

61

(2)

3.8 Social rules and modern legal systems

63

(2)

Notes

65

(5)

4 Law prior to rules

70

(14)

4.1 From rules to rulings to acts

70

(5)

4.2 Case of the common law

75

(4)

4.3 Rules and modern legal orders

79

(1)

Notes

80

(4)

5 Law as a system of rules

84

(19)

5.1 The rules of recognition

84

(2)

5.2 What kind of rule is the rule of recognition?

86

(2)

5.3 Acceptance and the reasons for acceptance

88

(3)

5.4 Reasons for acceptance: is modern law special?

91

(3)

5.5 Variable acceptance of rules

94

(2)

5.6 From the rule of recognition to specific laws

96

(1)

5.7 Conclusion about law as social rules

97

(2)

Notes

99

(4)

6 Social spheres

103

(18)

6.1 Introducing social spheres

103

(1)

6.2 Concept of a social sphere

104

(1)

6.3 Foundations of social spheres

105

(4)

6.4 Social spheres as distinct and separate

109

(2)

6.5 Density of social spheres

111

(1)

6.6 Social spheres and social explanation

111

(2)

6.7 Why do we create social spheres?

113

(2)

6.8 A more fundamental role for social-spheres

115

(2)

Notes

117

(4)

7 The reception of law

121

(21)

7.1 Variables in the reception of law

121

(1)

7.2 Categories of laws

122

(3)

7.3 Officials

125

(3)

7.4 Bringing back the people

128

(2)

7.5 Officials and the people: the terms of delegation

130

(2)

7.6 Reception of law through social spheres

132

(3)

7.7 The architecture of law

135

(1)

7.8 Legal environment

136

(1)

7.9 Law confronting social spheres

137

(2)

Notes

139

(3)

8 Law and coercion

142

(16)

8.1 The Background to coercion

142

(1)

8.2 The classic depiction of coercion in law

143

(2)

8.3 Hart's revision of the place of coercion

145

(2)

8.4 Revising the revision: a social explanation of coercion

147

(1)

8.5 Duty-imposing laws and the role of coercion

148

(3)

8.6 Private arrangements, power-conferring rules, and coercion

151

(3)

8.7 Conclusions concerning coercion

154

(1)

Notes

155

(3)

9 Legal pluralism: parallel legal orders

158

(15)

9.1 Dominance of state law

158

(3)

9.2 From state law to legal pluralism

161

(2)

9.3 Parallel and intersecting legal orders

163

(4)

9.4 Social consequences of parallel legal orders

167

(3)

Notes

170

(3)

10 Extended legal pluralism: informal legal orders

173

(20)

10.1 Extended legal pluralism

173

(2)

10.2 Three concerns about legal centralism

175

(1)

10.3 Social spheres subordinate to state law

175

(3)

10.4 Balance of state law and social spheres

178

(2)

10.5 The elusive legal element in legal pluralism

180

(3)

10.6 Legal pluralism, social relations, and law's authority

183

(5)

Notes

188

(5)

11 Does law have social functions?

193

(20)

11.1 From social functions to social value

193

(2)

11.2 Functions in legal theory and social explanation

195

(4)

11.3 Functions of rules

199

(1)

11.4 Substantive functions of legal rules

200

(3)

11.5 Maintaining social order

203

(4)

11.6 Defining the legal order and legal relations

207

(2)

11.7 Pursuit of social goods

209

(1)

Notes

210

(3)

12 The social value of law

213

(29)

12.1 Assessing law's social value

213

(1)

12.2 Need for central legal authority

214

(3)

12.3 Law's capacity

217

(3)

12.4 Securing private relations

220

(5)

12.5 Security of person and property: the criminal law

225

(4)

12.6 Provision of services

229

(2)

12.7 Regulatory laws

231

(3)

12.8 Restrainig officials

234

(2)

12.9 Sustaining legal authority

236

(1)

12.10 Conclusion

237

(1)

Notes

238

(4)

13 Form of modern legal orders

242

(24)

13.1 Distinctiveness of modern legal orders

242

(2)

13.2 Social relations in modern legal orders

244

(1)

13.3 Normative structure of modern legal orders

245

(4)

13.4 Matching normative structure and social relations

249

(1)

13.5 Support of officials

250

(3)

13.6 Supporting ideals: the rule of law

253

(4)

13.7 Instabilities

257

(6)

Notes

263

(3)

14 Social foundations of modern legal form

266

(27)

14.1 Accounting for the form of law

266

(2)

14.2 From trust to rules to law

268

(2)

14.3 Private interests and the state

270

(2)

14.4 Interests of the state: ruling over diversity

272

(2)

14.5 From privilege to equality

274

(2)

14.6 Dynamics of government administration

276

(2)

14.7 Seeds of self-restraint

278

(2)

14.8 Foundations of the rule of law in modern legal orders

280

(2)

14.9 Competing explanations

282

(2)

14.10 Socialization of the rule of law

284

(3)

14.11 Evolution from within: law as a source of the legal form

287

(2)

Notes

289

(4)

15 Implementation and the architecture of law

293

(17)

15.1 Introducing implementation

293

(2)

15.2 Implementation by officials

295

(4)

15.3 Architecture of law

299

(8)

Notes

307

(3)

16 Implementation: the legal and social environment

310

(21)

16.1 The legal environment of implementation

310

(2)

16.2 Creating legal environments

312

(5)

16.3 Authorized discretion

317

(2)

16.4 Unauthorized discretion

319

(1)

16.5 From legal environment to social context

320

(7)

Notes

327

(4)

17 Change through law: the contours of compliance

331

(28)

17.1 Using law to change society

331

(2)

17.2 Framework of compliance

333

(2)

17.3 Legal consciousness

335

(4)

17.4 A settled disposition to comply with the law

339

(1)

17.5 Legal architecture again

340

(2)

17.6 Dealing with the legal environment

342

(4)

17.7 Strength of the legal environment

346

(1)

17.8 Density of social spheres as a variable

347

(3)

17.9 Dealing with the law

350

(3)

17.10 Conclusion

353

(1)

Notes

354

(5)

Bibliography

359

(16)

Index

375

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Law in Modern Society

Summary

Author Biography

Table of Contents

Supplemental Materials