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Reflexivity and the Idea of Law

In many contexts, to speak of the existence of law or a legal system is to speak of the existence of a very complex structure of practices, patterns of conduct, understandings and expectations. Historians and anthropologists can offer rich and enlightening interpretations of such social realities. Those social scientists who aspire to greater generality may sometimes envisage more abstract models that seek to capture broad aspects of the phenomenon (aspects perhaps chosen for their relevance to some contemplated empirical inquiry) rather than the multifaceted character of particular instances. It would be a mistake, however, to assume that jurisprudence is best understood by equating it with either of these tasks. Jurisprudence strives to understand the nature of an established form of human association, but this does not mean that it can helpfully be regarded as descriptive sociology1 or as cultural interpretation. The philosophical problems of law do not arise from a detached scientific need to find a general description of a widespread human institution, or a culturally specific interpretation of our own practices. They arise from the reflexivity of law. Legal thought and practice exhibit reflexivity in so far as they explicitly or implicitly appeal to the idea of law. For the idea of law is not one that simply describes existing practices; rather, the idea of law plays a vital part within the practices that make up the existence of a legal order. Legislators do not issue orders: they purport to enact laws, and the status of their enactments as law is regarded as critical to the requirement that citizens should comply with the standards so (2010) 1 Jurisprudence 1–23