Maksymilian T. Del Mar (University of London – Queen Mary – Department of Law) has posted Beyond the State in and of Legal Theory (CONCEPTS OF LAW: COMPARATIVE, JURISPRUDENTIAL, AND SOCIAL SCIENCE PERSPECTIVES, S. Donlan, L. Heckendorn-Urscheler, eds., Ashgate, 2011) on SSRN. Here is the abstract:
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This paper argues that contemporary legal theory needs to move beyond the substantive polemics of state versus non-state, and the methodological polemics of analytical versus empirical. It argues that we should, instead, recognize that law’s relation to power is contingent, and that power itself can take broadly two forms: it can be either more or less centralized or de-centralized. Law takes on a different character or hue in centralized and de-centralized contexts. Further, in any one particular polity, especially contemporary polities, there will be a mix of different modes of organizing power, and thus a blend of the characters or hues of law. Methodologically, the paper argues that theorists ought to analyze law’s relation to centralization and de-centralization by balancing history, social science and theory, or differently, diachronic, empirical and conceptual analysis. In short, we need in our inquiry into law to examine more of human history, and we can do so without losing any empirical sensitivity or conceptual sophistication.
The paper is divided into two parts. The first part of the paper examines law’s relation with centralization, including considering the history of (and the history of theorizing about) the state and sovereignty, and how we may identify, with the assistance of social science, particular techniques and strategies of centralized power. The second part looks at law’s relation with de-centralization, focusing on identifying the key concepts and values associated with such a view of law, and doing so in part by reference to the history of the literature on legal pluralism. These two parts articulate two broad sensibilities – one which associates law more with centralization, and the other more with de-centralization. Ultimately, it is claimed that both are on equal footing and should be partners, and not adversaries, in our study of law.
Recommended.