{"title":"不受约束的法理学领域:在规范多样性、相互作用和冲突的世界中重新概念化法律","authors":"Z. Tan","doi":"10.1504/IJPL.2014.064924","DOIUrl":null,"url":null,"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.","PeriodicalId":39023,"journal":{"name":"International Journal of Private Law","volume":"197 1","pages":"297"},"PeriodicalIF":0.0000,"publicationDate":"2014-09-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"The province of jurisprudence unbound: re-conceptualising law in a world of normative diversity, interaction and conflict\",\"authors\":\"Z. Tan\",\"doi\":\"10.1504/IJPL.2014.064924\",\"DOIUrl\":null,\"url\":null,\"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.\",\"PeriodicalId\":39023,\"journal\":{\"name\":\"International Journal of Private Law\",\"volume\":\"197 1\",\"pages\":\"297\"},\"PeriodicalIF\":0.0000,\"publicationDate\":\"2014-09-23\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"International Journal of Private Law\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.1504/IJPL.2014.064924\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q4\",\"JCRName\":\"Social Sciences\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"International Journal of Private Law","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1504/IJPL.2014.064924","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q4","JCRName":"Social Sciences","Score":null,"Total":0}
The province of jurisprudence unbound: re-conceptualising law in a world of normative diversity, interaction and conflict
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.