Legal practice and its continuity

Thesis

This thesis has a particular and a general aim. The particular aim is to provide a satisfactory account of constitutional crises. Available accounts tend to either exaggerate the disruptive character of such crises or, conversely, to deny it; the challenge is thus to acknowledge the disruption without blowing it out of proportion.

The general aim is to outline a theory of law from which such a satisfactory account would follow. The available accounts oscillate between the two extremes because they are attached to the idea that law is a system of legal norms. I critique this idea—not to reject it, though, but to show that it is only one element in a complete account of law. Instead of viewing legal practice as governed by a system of norms, posited and administered by state institutions, we may view it as a collective practice among the general population, whereby they make sense of each other’s actions in legal terms so as to know how best to navigate their mutual interactions. The legal system does have a place in this latter picture, but this place corresponds to the important yet limited role of the state in wider social practice.

Articulating and substantiating this proposal takes up the better part of the thesis, eventually to yield an understanding of legal continuity which translates into a satisfactory account of constitutional crises. The continuity of legal practice is not a direct function of the continued efficacy of some normative system, but depends on whether participants in the practice can make enough legal sense of their interactions to know how to carry on with them. In a constitutional crisis, no such legal sense can be made of at least certain practices of constitutional actors; but many everyday interactions may still make perfectly good legal sense.

Authors: Majewski, K

• DOI: 10.5287/ora-prqdnopar
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: legal system; general jurisprudence; legal norms; constitutional crisis; legal theory; legal meaning; legal philosophy
• Subjects: Jurisprudence