Andy Yu (University of Western Ontario) has posted Popular Recognition and the Continuity of Legal Systems on SSRN. Here is the abstract:
What explains the continuity of legal systems over time? The existing accounts of continuity, I suggest, face various challenges. I consider five existing accounts: (1) the basic-norm-based account, (2) the rule-of-recognition-based account, (3) the state-based account, (4) the reasonableness-based account and (5) the official-recognition-based account. I focus on challenges for the official-recognition-based account, as it is the most recent contribution to the literature, and it sets the stage for the account that I propose. In this article, I propose an alternative account: the popular-recognition-based account, which holds that a legal system continues to exist just if the people recognize it continues to exist. The account incorporates the key insight of the official-recognition-based account, namely that the continuity of a legal system depends on social recognition, but it takes the social recognition to come from the people rather than only the legal officials. In short, I propose that popular recognition grounds the existence, identity and continuity of a legal system. This account, I suggest, vindicates certain features of existing accounts, including the compelling idea that the people somehow explain what legal systems there are, and accommodates various examples that existing accounts have trouble accommodating.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum