The province of jurisprudence unbound: re-conceptualising law in a world of normative diversity, interaction and conflict

Abstract

In conceptualising law, Hart, like most Anglo-American legal theorists, took the municipal legal system as his starting point. My thesis is that a state-based concept of law cannot adequately explain the diversity of interacting and conflicting normative orders in today’s global arena. In its place, I propose an original re-conceptualisation of law as justice-oriented discourse across overlapping social fields . I first explain why it is fallacious to assume that the state should be the starting point for theoretical construction. Next, I use Hart’s theory to demonstrate that a state-based theory cannot accommodate normative diversity, conflict and interaction. Finally, I explore various alternative theories, and suggest that law as ‘justice-oriented discourse’ best rises to the challenge of general jurisprudence in today’s world. I conclude that our concepts of law must always remain sensitive to the emergence of new legal phenomena, and thus the task of the legal theorist is never complete.