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Legality's BordersAn Essay in General Jurisprudence$
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Keith Culver and Michael Giudice

Print publication date: 2010

Print ISBN-13: 9780195370751

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780195370751.001.0001

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The hierarchical view of legal system and non-state legality

The hierarchical view of legal system and non-state legality

Chapter:
(p.41) 2 THE HIERARCHICAL VIEW OF LEGAL SYSTEM AND NON-STATE LEGALITY
Source:
Legality's Borders
Author(s):

KEITH CULVER

MICHAEL GIUDICE

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195370751.003.002

This chapter examines Raz's theory of legal system, which explicitly sets out to overcome difficulties in Hart's account regarding the identity and borders of legal systems by introducing new explanatory elements. Raz claims that legal systems are unique normative systems since they claim, via the activities of a broad range of norm-applying institutions, to govern comprehensively, supremely, and openly the social life of their subjects. Unlike Hart's, Raz's theory is avowedly state-based and state-restricted, as he says it is not meant to be tested against non-state phenomena of legality. It is argued that there are nonetheless several problems with Raz's theory as a contribution to general jurisprudence. In addition to leaving the problem of indeterminacy unresolved, Raz's theory is unable to explain various types of state legal systems that are comprised of federalist structures as well as shared and distributed governance arrangements.

Keywords:   legal system, hierarchy, Raz, comprehensiveness, supremacy, openness, norm-applying institution, non-state legality

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