The term “legal system” is not a technical legal term. It can sometimes appear in court decisions, but any term can appear there. Although it is sometimes used in legal argumentation, it does not have the character of a technical legal term such as “floating charges” or “simplified fees” or “consideration”. Nor is this concept important for the administration of justice today, nor are the concepts of contract, property, right, duty, etc. The term is used primarily to think about the law, not in the actual application and enforcement of the law. It is often used in case law or comparative law books, not in books on property law, tort or copyright. Laws are part of legal systems; A particular law is a law only if it is part of American or French law or any other legal system. Legal philosophers have consistently tried to explain why we regard laws as legal systems, to evaluate the merits of this way of thinking about law, and to clarify them by explaining the characteristics that explain the unity of legal systems. Various theories have been proposed, but none have been accepted as entirely satisfactory, and the current debate owes much to the complexity of the issues involved. This complexity is also due to considerable cloudiness in understanding the problems themselves. With this article, I will try to clarify the nature of the problem of the unity of municipal legal systems. My primary goal is not to answer all relevant questions, but to formulate them more precisely, because I believe that in philosophy, a clear conception of a problem is halfway to its solution. In order to try to answer these questions, it is first necessary to distinguish two possible conceptions of the unity of a legal system, which I shall call material unity and formal unity.
The material unity of a legal system lies in its distinctive characteristics; It depends on the content of its laws and the way in which they are applied. Of course, when we try to explain the characteristics of a legal system, we are not looking for the detailed regulation of each legal institution. Rather, we look for the pervasive principles and traditional institutional structures and practices that permeate the system and give it its distinctiveness. In order to distinguish the problem of formal unity from that of material unity, I shall call the former the problem of the identity of legal systems. Therefore, in attempting to clarify the concept of legal system, the legal theorist does not seek to clearly define the meaning in which the concept is used by legislators, judges or lawyers. Rather, he is trying to forge a useful conceptual tool that will help him better understand the nature of the law. That doesn`t mean he shouldn`t try to model the concept in a way that would be helpful in solving some legal problems. Rather, it means that even if he does, he will not try to clarify the meaning of a legal term, but will provide the lawyer with a concept that can help him deal with some nagging legal problems. But should the aim of the legal theorist really be to contribute to the solution of legal problems by forming a precise conception of the identity of a legal system? For what kinds of legal problems can such a concept be relevant? And if that`s not its goal, what is it? Answering these questions is the main goal of this article. “There is a legal system,” says Joseph Raz, “if and only when it is in force.” By this he means that the effectiveness of the law – that is, its ability to control the population to which it applies – is necessary for its identity as such. However, despite the widespread recognition that effectiveness is a condition for the existence of laws, little time has been devoted to analyzing the term.
This article begins an attempt to fill the gap. I advocate for the necessary effectiveness of the law, and I develop and defend a presentation of the concept that is largely Celsenian. In doing so, I address the issues of the relationship between obedience and execution in a presentation of the existence of a legal system and link the discussion to the discussion on the ontological status of international law. 23 pages Published: 30 June 2020 Last updated: 28 Sep 2020 Forthcoming in M. Sellers and S. Kirste (eds), Encyclopedia of the Philosophy of Law and Social Philosophy, Springer. Do you have any conflicts of interest? * Conflict of Interest Help – No HTML tags allowed – Website URLs are only displayed as text – Lines and paragraphs wrap automatically – Attachments, images or tables are not allowed Your email address will be used to notify you when your comment has been reviewed by the moderator and if the author or moderator of the article or moderator needs to contact you directly. St Cross BuildingSt Cross RdOxford, OX1 3ULUnited Kingdom Subscribe to this paid guide for more curated articles on this topic Please list any fees and grants, employment, advice, co-ownership or a close relationship with an organisation in the last 36 months whose interests may be affected by the publication of the response. Please also list any non-financial associations or interests (personal, professional, political, institutional, religious or other) that a reasonable reader would like to know in relation to the submitted work.
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