‘Prolific misunderstanding’ is a typical, perhaps a necessary feature in the process of appropriating another civilization.
Introduction
Since the early 1990s I have used the term ‘General Jurisprudence’ to refer to the heritage and activity of theorising from a global perspective.2 This is not a new kind of Jurisprudence. Rather it is an extension of focus from municipal legal systems and classic International Law (‘The Westphalian Duo’) to include a wide range of transnational, supranational and other ideas and phenomena.
The term ‘General Jurisprudence’ is ambiguous and has a long and varied history.3 In the English analytical tradition, ‘general’ referred to extension in point of space or time: Bentham, for example, distinguished between universal and local jurisprudence and equated ‘general’ with universal; Austin distinguished between the general theory of law common to maturer systems (General Jurisprudence) and the theory of law underlying a particular legal system (Particular Jurisprudence). ‘General’, contrasted with ‘particular’, often meant more than one – that is, covering or transcending two or more legal traditions, cultures, stages of development or even jurisdictions.4
My use of the term ‘General Jurisprudence’ is quite close to the English nineteenth-century usage, but is not confined to ‘maturer systems’. This usage was current in Oxford when I was a student.5 In my view, Jurisprudence is a synonym for legal theory; a theoretical question is one posed at a relatively high level of abstraction; ‘General Jurisprudence’ covers theoretical questions that transcend borders of time and space, legal traditions and cultures, legal families, even different jurisdictions at varied levels of abstraction. In this context, ‘general’ can be contrasted with ‘particular’ legal systems or traditions; it can also be contrasted with global and universal, indicating that it covers many intermediate geographical levels between genuinely worldwide and relatively local. That takes pressure off the overused ‘global’. The key point is that in this usage ‘general’ transcends particular legal orders.6
Some commentators have asked: is General Jurisprudence (in my usage) possible?7 If the question means ‘will it be possible to achieve a fully integrated overarching theory of law or at least to move towards one?’, my answer is that I do not know, but I am sceptical (Chapters 1 and 20). Applied to General Jurisprudence as an activity, the answer is: ‘Yes – many people are doing it.’ That is, many people are struggling with issues that cross boundaries of nation states, legal traditions and other disciplines at fairly general levels of abstraction from Neil Walker’s and Rafael Domingo’s ambitious attempts to theorise ‘global law’, through my more or less abstract ones to guide numerous particular theoretical studies and ‘rethinkings’.8
In the context of my project on ‘Globalisation and Law’, I extended my ideas on Jurisprudence as a field, but did not change them substantially (Chapter 13). I still think it useful to think of the field in terms of heritage, ideology and activity, emphasising the latter. I still think that as an activity legal theorising can make several kinds of contributions to the health of our discipline.9 Three of these have been particularly significant in my globalisation project. First, our stock of concepts for dealing with transnational and supranational phenomena is underdeveloped; we need more concepts that travel well. Secondly, middle-order theorising has a very important role to play in making sense of the implications of globalisation for understanding law: most significant transnational patterns are sub-global and many topics and fields such as pluralism, diffusion, human rights, international economic and financial law, regional regimes, cyber law and Comparative Law have become more salient in response to globalisation. This kind of theorising provides a crucial bridge between Legal Philosophy and specialised particular studies. Thirdly, because accelerated globalisation has presented radical challenges to some mainstream working assumptions of Western academic law and to the way certain key topics and transnational fields have been conceived and treated, there is a need for more self-critical legal studies. The next sections illustrate these themes.
Rethinkings
One of the most important tasks of theorising is the articulation and critical appraisal of the presuppositions and working assumptions and concepts of legal discourse generally and of more specialised areas. This is particularly useful when a sub-discipline or a specialist subject needs re-examination in the context of a changed situation or perspective. We have already seen some examples of such exercises in Chapters 12 and 13.
As the processes of globalisation impact on and give greater prominence to transnational fields, there is a corresponding need to subject their assumptions and discourses to critical scrutiny. There has already been much introspection and some more radical rethinking in sub-disciplines, especially in older transnational fields.10 But the pattern has been uneven. As part of my globalisation project I developed a critical method by constructing ideal types of conventional conceptions of particular fields and topics and suggesting that one of the implications of globalisation is to challenge some elements in these ideal types. This section reports on three such exercises in ascending order of scope; the first is a critique of my first ever published article, which was on reception/diffusion of law; the second took selected writings on Comparative Law by leading members of the first generation of post-World War II comparatists and criticised some of their working assumptions; the third, more boldly and perhaps idiosyncratically, identified and challenged some mainstream assumptions of Western Legal Traditions of academic law about their discipline. Globalisation not only has implications for our detailed understanding of particular subjects, it also suggests possible challenges to the standard assumptions with which we approach them.
It is important to emphasise two preliminary points. First, these ideal types were intended to represent some scholars’ working assumptions about their enterprise, not their actual practices which are generally more diverse, richer and often more sophisticated. Scholars often act better than they say. Secondly, my constructions are quite subjective and impressionistic. If one accepts the method, one can, of course, choose to construct different, perhaps more evidence-based, ideal types.
Diffusion/Reception/Transplants
I believe I have shown that massive successful borrowing is commonplace in law. Indeed, … I have indicated that borrowing is usually the major factor in legal change. Legal borrowing I would equate with the notion of legal transplants. I find it difficult to imagine that anyone would deny that legal borrowing is of enormous importance in legal development. Likewise I find it hard to imagine that anyone would believe that the borrowed rule would operate in exactly the way it did in its other home.
No transportation without transformation
In this context ‘diffusion’13 refers to the processes and outcomes of legal phenomena spreading between and among legal orders, including but not confined to municipal (i.e. state) legal systems. It is important because many of the uniformities and patterns that are observable transnationally or cross-culturally may be explicable in whole or in part by ‘diffusion’. Furthermore, diffusion concepts may help to differentiate superficial similarities from genuine ones. Sociological scholarship suggests that there are very few examples of simple diffusion without adaptation; however, Alan Watson has argued that this may not apply so much to large-scale transplantations of laws and ideas which survive as surface law largely unresponsive to local social, political or economic conditions.14
While at Stanford in 1999–2000, I revived my interest in ‘reception’ and guided by a colleague, David Snow (best-known for his work on social movements), I plunged into parts of the sociological literature.15 I was surprised by three things. First, although they had a shared history in early anthropology, this was another example of two bodies of literature (Law and Sociology) talking past each other; it was a case of mutual deafness – for example, a recent sociological literature survey barely mentioned law.16 Secondly, the sociological literature was vast and quite sophisticated. Thirdly, it depicted a perspective that I had not imagined in my earlier work. Consequently, I set about some self-criticism.
In adopting the method of internal critique, I tried to show that much of the previous legal literature on legal transplants/reception up to that time, which contained some excellent studies, has been based on some simplistic assumptions.17 Using my very first published article on ‘Some Aspects of Reception’, published in the Sudan Law Journal and Reports for 1957, I demonstrated that my account was based on a naïve model of reception that postulates a paradigm case with the following characteristic assumptions:
[A] bipolar relationship between two countries involving a direct one-way transfer of legal rules or institutions through the agency of governments involving formal enactment or adoption at a particular moment of time (a reception date) without major change … [I]t is commonly assumed that the standard case involves transfer from an advanced (parent) civil or common law system to a less developed one, in order to bring about technological change (‘to modernise’) by filling in gaps or replacing prior local law.18
Using concepts from Everett Rogers’ Diffusion of Innovations,19 the standard textbook on the subject (itself showing signs of age), I was able to show that none of these elements is necessary or even characteristic of actual processes of diffusion of law, broadly conceived. In short, these processes are much more diverse and complex than the ‘naïve model’ suggests. This complexity was best illustrated not by setting up a contrapuntal model, but rather by indicating possible deviations from each of the elements in the paradigm case. Here this is relevant not only because of the importance of diffusion as a subject, but also because a similar method can be used to explore how adopting a global perspective may challenge standard assumptions in the orthodox or mainstream literature on a particular topic (see Table 1).20
Table 1 Diffusion: a standard case and some variants
| Standard case | Some variants | |
|---|---|---|
| a. Source–destination | Bipolar single exporter to single importer |
|
| b. Level | Municipal legal system–municipal legal system |
|
| c. Pathways | Direct one-way transfer |
|
| d. Formal/informal | Formal enactment or adoption | Informal, semi-formal or mixed |
| e. Objects |
| Any legal phenomena or ideas, including ideology, theories, personnel, ‘mentality’, methods, structures, practices (official, private practitioners’, educational etc.) literary genres, documentary forms, symbols, rituals etc. |
| f. Agency | Government–government |
|
| g. Timing | One or more specific reception dates | Continuing, typically lengthy process |
| h. Power and prestige | Parent civil or common law less developed | |
| i. Change in object |
|
|
| j. Relation to pre-existing law |
|
|
| k. Technical/ideological/cultural | Technical | Ideology, culture and technology |
| l. Impact | ‘It works’ |
|
The Country and Western tradition of micro-comparative law
[S]ciences which have to busy themselves with their own methodology are sick sciences.
If there is ‘a sick science’ in Radbruch’s sense today it is not comparative law but rather legal science as a whole … and comparative law can cure it.
In a study conducted in the mid-1990s,23 I used a similar approach to the one used in ‘The Rationalist Tradition of Evidence Scholarship’ to identify the underlying assumptions about a single field, Comparative Law.24 I analysed what leading comparative lawyers had said about their subject in the period 1945–90, emphasising that in practice comparative work was very much richer and broader. This analysis resulted in an ideal type of mainstream conceptualisations of the field, which I labelled ‘The Country and Western Tradition’ (see Table 2). The purpose was to show that the focus of mainstream micro-comparative law had been narrow in several respects. In a period of agonised introspection internal critics (e.g. Watson, Ewald and Legrand)25 had raised important questions about the philosophical underpinnings, the methods, the purposes and the biases of Comparative Law, but they worked within the confines of the same tradition, largely restricted to municipal law (especially private law) of modern Western states, mainly comparing common law and civil law. The result was that large areas of existing scholarly concern, including religious law, African law, Human Rights and ‘Law and Development’, were not treated as belonging to ‘Comparative Law’, and that nearly all supra-state, sub-state, and non-state law was similarly ignored. There was some justification for this in the pioneering days after World War II, when a relatively new subject had to establish its relevance, its respectability and its utility within mainstream academic law, but this artificially narrow model does not seem appropriate in an era of globalisation.
Table 2 The Country and Western model of Comparative Law, 1945–1990*
|
|
|
|
|
|
* GLT, 184–9.
** During the period of the Cold War, a major exception to (ii) was Soviet or Socialist law, which was treated as belonging to ‘Comparative Law’ in a way in which African, Indian, Islamic and Hindu law were not.
*** On ‘functionalist’ comparative law, see E. Őrűcű and D. Nelken (eds.), Comparative Law: A Handbook (2007), passim.
After about 1990 the field of Comparative Law expanded to include a much wider range of legal fields (e.g. constitutionalism, human rights, responses to terrorism), comparisons at supra-state levels (e.g. comparative international law, regional human rights regimes), cross-level comparison (e.g. tribunals at different levels of ordering), comparison within legal traditions (e.g. comparative common law and civil law) and interactions between state and non-state law and even countries.26 In the same period, multiple perspectives have been brought to bear – economic analysis, difference theory, critical legal theory, feminism, for example – and, as legal scholarship has generally become more transnational, the claim has been made that ‘we are all comparatists now’.27 There is a paradox here: all academic lawyers and law students have to make explicit or implicit comparisons, but to win one’s spurs as a comparative lawyer requires a ten-year apprenticeship. For non-specialists the best that can be hoped for are some elementary warnings about the pitfalls of comparison as part of legal method.28 This example illustrates how the approach advocated here can be applied to critical examination of any specialised field as it is conceived and practised in a particular time and place. Of course, this is quite common in ‘rethinking’ a field from the point of view of a fresh perspective, such as feminism, economic analysis or deconstruction.
Comparison is a stage on the way to generalisation. Comparative Law is crucial to the development of our discipline and Comparative Law theory needs developing. When Conrad Zweigert, a leading comparatist of the late twentieth century, urged his colleagues just to get on with the job,29 that was possibly sensible advice to comparatists twenty years ago. In recent times comparative law has been highly introspective largely because of ‘globalisation’. On the whole it has not been well served by theory, but that is changing. Far from being sick, it is now potentially the most important engine for transnationalisation of our discipline. It should be near the top of the agenda for General Jurisprudence in the next phase.
Western traditions of academic law: challenging some mainstream assumptions
A rather bolder use of this kind of critical approach was to construct some ideal types of mainstream assumptions of Western academic law which appear to be under challenge if one takes globalisation seriously. One example of such a template reads as follows:
(a) that law consists of two principal kinds of ordering: municipal state law and public international law (classically conceived as ordering the relations between states) (‘the Westphalian duo’)
(b) that nation-states, societies, and legal systems are very largely closed, self-contained entities that can be studied in isolation
(c) that modern law and modern jurisprudence are secular, now largely independent of their historical-cultural roots in the Judaeo-Christian traditions
(d) that modern state law is primarily rational-bureaucratic and instrumental, performing certain functions and serving as a means for achieving particular social ends
(e) that law is best understood through ‘top-down’ perspectives of rulers, officials, legislators and elites with the points of view of users, consumers, victims and other subjects being at best marginal
(f) that the main subject matters of the discipline of law are ideas and norms rather than the empirical study of social facts
(g) that modern state law is almost exclusively a Northern (European/Anglo-American) creation, diffused through most of the world via colonialism, imperialism, trade and latter-day post-colonial influences
(h) that the study of non-Western legal traditions is a marginal and unimportant part of Western academic law
(i) that the fundamental values underlying modern law are universal, although the philosophical foundations are diverse.30
This suggests that during the twentieth century, and before, ‘Western academic legal culture has tended to be state-oriented, secular, positivist, “top-down”, Northo-centric, unempirical and universalist in respect of morals.’31 This template comes with a health warning. It is an ideal type of some tendencies in Western academic law. On its own it is almost a caricature. As generalisations, each of these propositions is subject to numerous exceptions, could be phrased differently and could be added to. The main claim is that insofar as these are common working assumptions or presuppositions of much contemporary legal discourse, each is subject to challenge by tendencies of ‘globalisation’ in some contexts. The use of this list is to raise some questions in regard to each proposition in a given context: is this being assumed here? If so does it hold good for this enquiry from a global perspective? Or have I been making this assumption here? Do I need to revise, modify, qualify or reject it from this standpoint?
This particular list and the formulation of each proposition is derived from my own reflections and interpretations about the challenges of adopting a global perspective. The list and the particular formulations can be revised or substituted by anyone who disputes them. It is only illustrative of a method of thinking critically about one’s intellectual heritage, however one perceives it. All it does is suggest at a very general level a test for a critical approach to the question: ‘What might be the implications of globalisation for me?’
Normative and legal pluralism
I have written a good deal about the literature on this complex subject, but my general position is simple.32 First, there is no serious debate about the existence of state legal pluralism – that is to say, many states recognise bodies of religious and/or customary law as part of the state legal system. For example, when I was in the Sudan the official laws consisted of the Constitution, local legislation, with common law doctrine as a residual law imported under the formula ‘justice, equity and good conscience’. They also recognised Muslim Law and Customary Law for limited purposes. What different sectors of the population treated as ‘their law’ was much wider than that, but not all of it was recognised as part of state law. For example, what Francis Deng reported as Dinka law was very much wider than the limited parts incorporated into Sudan state law.33 There were a number of practical problems and controversial issues associated with state legal pluralism, such as how customary law could be proved and interpreted.
Secondly, normative pluralism is a social fact. That is to say, all human beings experience a wide range of different kinds of norms, rules and prescriptions every day of their lives. When I asked my students how many rules they had encountered in the previous forty-eight hours very few listed less than a hundred.34
Thirdly, in my view legal pluralism is also a social fact if one is using a broad conception of law. That is to say, more than one legal order can, and often does, co-exist in the same time/space context. Such orders may have little contact with each other or they may be related and interact in complex ways, sometimes in conflict, sometimes peacefully co-existing or influencing or complementing each other. Interlegality,35 as Santos calls it, can be difficult to ascertain or describe and is often quite complex, as is inter-normativity: what is the relationship between our household’s routines, the traffic laws, conventions of courtesy and a supermarket’s regimes when you go shopping? Standpoint is important here: the main evidence that normative pluralism exists is that we all experience it; a legal system through its officials or jurists may deny that most kinds of social norms exist as state law. But those same officials cannot honestly deny the existence of such social norms, because they too experience them as officials as well as subjects. Some may be relevant to decisions they make. If their conception of law is restricted to their own legal system and the species of order of which it is a class, then they can deny that this is a situation of legal pluralism. That is a top-down view. From the standpoint of those subject to social norms, whether or not they are ‘law’ is very often not important. But a British Muslim who considers UK law and shari’a both as law is in a situation of legal pluralism.36
Fourthly, a lot of the controversy surrounding legal pluralism can be interpreted as the surfacing in a particular context of the familiar issues surrounding conceptions of law. This seems to have distracted attention from a range of other puzzlements about pluralism, interlegality, individuation of norms and normative orders, and general normative theory. I have dealt with these matters at length elsewhere.37
In my Miami seminar we spent at least two weeks on normative and legal pluralism as a topic. Having persuaded the class that they all had experience of normative pluralism and that anyone who denied this would be akin to a flat-earther, each student would present two case studies of examples of potential for legal pluralism. Santos’s account of a favela in Rio (Pasagarda) contrasted nicely with the Common Law Movement in the USA (the ‘legal system’ of disaffected militias) because both largely defined themselves against ‘asphalt law’ (i.e. state law); the Otieno case in Kenya in which the widow of an ‘urbanised’ Nairobi lawyer contested burial rights with her husband’s clan; and Sudan Government v Balla el Balla Baleila, in which the question arose whether cattle-owning nomads could claim reasonable provocation as a defence when they killed the driver of a train that had killed hundreds of their cows (held: that the standard was the reasonable Baggara tribesman).38 These last two cases illustrated that ‘state legal pluralism’ is alive and well in countries that recognise aspects of custom and religion as part of state law.
It is especially revealing to consider ‘pluralism’ from bottom-up perspectives – for example, whether Muslims in Bradford were bound by the fatwa to kill Salman Rushdie because of passages in his novel, The Satanic Verses; or the dilemmas of a British Muslim woman engaged to a British Muslim man about the best order in which to take wedding ceremonies (should they register a civil marriage first or simultaneously?), whether to have a prenuptial agreement (and if so, in what form) and whom to consult in what order from among family, peers, an imam, a solicitor or a local advice bureau?39 We only discussed problems of theorising ‘pluralism’ after we had considered such concrete cases in detail and, on the whole, we found most of the theoretical literature unhelpful.
Analytical Jurisprudence from a global perspective
I am mainly an analytical jurist. I have summarised my main ideas about the subject elsewhere:40 in particular, that the English tradition of Analytical Jurisprudence is one among several European traditions; that concepts are important for analytical, normative, empirical and legal enquiries; and that analytical jurists in the British tradition have very largely confined their attention to doctrinal concepts and reasoning about questions of law, leaving vast swathes of legally relevant concepts unexplored if one adopts a broader conception of Law as a discipline.41 This has been only partly mitigated by drawing on concepts from neighbouring disciplines as I did in my work on diffusion.
In ‘Have Concepts: Will Travel’ (2001)42 I urged analytical jurists to turn their attention to constructing and elucidating concepts that could ‘travel well’ across legal traditions and cultures, or even jurisdictions such as England and France. The gist of the argument was that, because of their history, Western traditions of academic law had produced very few such concepts in regard either to law talk or talk about law. The latter could to some extent draw on concepts developed in neighbouring disciplines, but emerging forms of transnational law (including transnational, and – allegedly ‘global’ – standards and indicators) need new concepts and terms for their articulation, although we cannot expect a comprehensive legal Esperanto.
A simple example of a concept not travelling well is that of a judge: in press reports of a recent ‘league table’ of the gender balance in European judiciaries43 England and Wales were placed near the bottom in respect of the number of women ‘judges’ compared to men; France was much higher up. Who counted as a ‘judge’ in this context was not reported in the press. In the original report it was limited to professionally qualified persons, but sitting on which tribunals was not specified. If lay magistrates had been included, the table would have been different, because rather more than 50 per cent of lay magistrates in England and Wales are women. They deal with approximately 90 per cent of criminal cases, the nearest equivalents of which are largely dealt with by professionally trained persons in nearly all the other OECD countries. The point is not just a semantic one; rather it is that the arrangements in respect of who is responsible for criminal adjudication are quite different in England from, for instance, our neighbour France. They are not comparable in such terms; there is no satisfactory concept that can help make the comparison. League tables, indicators and many transnational statistics are full of such false, dubious or otherwise misleading comparisons. The concept of judge does not travel well in this context.
This is a large subject with a huge and difficult agenda. In the appendices of General Jurisprudence, I included illustrative mini-studies of some concepts that need refining in transnational legal discourse to be used in making comparisons and generalisations.44 The problem is familiar to anyone who does comparative work. Within Comparative Law there has been a good deal of literature struggling with doctrinal concepts, but this is very uneven in its reach. There is very little on concepts needed in making valid empirical comparisons and generalisations. Some other disciplines are more advanced and sometimes usable concepts can be borrowed (with care) for legal research. But one of the implications of taking globalisation seriously is the great need for usable concepts for making comparisons and generalisations.
If one looks on concepts pragmatically as thinking tools, as Bentham, Dewey and Llewellyn all did, it is clear that empirical legal studies need appropriate and usable tools for interpretation, description and explanation of legal phenomena. They are needed for transnational statistics. At first sight this looks like a job for experts in conceptual elucidation and construction. However, many of these contexts are held or assumed not to be ‘philosophically interesting’ and so are beneath the radar of Analytical Legal Philosophers. While one can agree that some of the practical conceptual problems can be solved by careful crafting or stipulation for a given context, others need more skilful construction backed by understanding of the relevant facts, values and conceptual networks. Many of these problems are jurisprudentially interesting, whether or not they are philosophically interesting.45
Bridging analytical, normative and empirical divides
I have devoted much energy to trying to build bridges between the different intellectual traditions of Analytical Jurisprudence and Empirical Legal Studies.46 Reconciling what I learned from Hart and Llewellyn was a start;47 inviting analytical jurists to extend their focus beyond the doctrinal concepts of law talk to include basic concepts of talk about law, such as institution, dispute and social rule; or to help in crafting concepts that travel well across legal traditions and legal systems; or to provide help in refining concepts needed for the appropriate formulation of hypotheses, transnational comparisons and increasingly influential indicators. Conversely, I have tried to persuade socio-legal scholars and human rights theorists not to dismiss Analytical Jurisprudence as merely emanations of formalism or positivism.48 I have criticised as ‘silo thinking’ the tendency to treat Analytical, Normative and Empirical Jurisprudence as semi-autonomous domains (Chapters 1 and 13). At less abstract levels I have emphasised that understanding Evidence, Comparative Law, reasoning in legal contexts or torture involves paying attention to concepts, values and facts as well as doctrine; and that being realistic is a necessary (or at least a very important) but not a sufficient element in understanding law (Chapter 13).
Of course, I have not been alone in these efforts. Among contemporaries, Brian Leiter has tried to ‘naturalise’ Jurisprudence by challenging sharp distinctions between analytical and empirical perspectives;49 Nicola Lacey has shown how understanding criminal responsibility or doctrinal concepts of causation need to be understood in their historical, institutional and procedural contexts;50 Harold Berman and others have argued for integrated forms of Jurisprudence;51 Neil MacCormick’s approach to Jurisprudence was in part driven by a sustained concern to bridge analytical, normative and empirical dimensions of law and justice;52 and Brian Tamanaha’s latest attempt to fight for recognition of social-historical perspectives as a ‘third pillar’ of Jurisprudence is an ally in the same cause.53 At more particular and applied levels many legal scholars have explicitly adopted a ‘law in context’ approach, interpreting it in many ways.
In some quarters such approaches have met with sustained, largely quiet, resistance. To take three examples: those who are committed to strong versions of a ‘scientific’ approach to legal doctrine; analytical jurists who try to divine the essential nature of law through conceptual analysis or explanation or who hold that this kind of analysis can be done best, or at all, without direct concern for social or historical ‘reality’; and those, like Ronald Dworkin, who maintain that understanding law is essentially a moral rather than an empirically grounded enterprise.54
This is not the place to revisit these old battles. But it is worth commenting briefly on their main strategies of defence: one is ignoring – that is, not responding to their critics; another is to take refuge in some strong version of the idea of autonomous disciplines; a third is to invoke a somewhat individualistic interpretation of freedom of enquiry: ‘I pursue questions that interest me; you are free to pursue ones that interest you.’ While the freedom of the individual scholar to seek the truth in her own way is an important strand in our academic tradition, this should not preclude intellectual challenges to their enterprise nor should it silence those who think that there are important collective interests in the health of scientific and other academic enterprises and that, especially in respect of institutionalised education, there are some responsibilities that extend beyond individual preoccupations or enthusiasms or hobbies.55
This book is concerned with the health of the institutionalised discipline of law, with particular reference to how the discipline and its many constituent sub-disciplines and enterprises is responding and might respond to its present situation and future challenges especially in respect of globalisation. To talk of the health of a discipline could raise several philosophical hares, but what is meant by ‘health’ in this context is quite simple: it is the point that one’s conception of a discipline and how it is in fact practised are both susceptible to criticism and rational debate, here in terms of its mission in advancing and disseminating knowledge and understandings of its subject matters. The discussions of ‘rethinkings’ of various sub-disciplines and topics have been from the standpoint of someone who feels that the present situation is unsatisfactory; for example, to criticise the working assumptions and practices of the ‘doctrinal tradition’ when it has been exclusive or too dominant in legal scholarship or legal education. There are numerous other suggestions in preceding chapters.56
The central point is that we as jurists in the second decade of the twentieth century are in a different situation from our predecessors and those in other traditions and places. So much has changed: globalisation in its many forms; the world economy (if there is just one); the impact of new technologies; the threats of climate change; the repetitious debates and posturing of older ideologies; and the rise of polarised fundamentalisms, religious, economic or political. We have to construct new agendas and equipment for legal theory, including new concepts, new hypotheses, models and generalisations, refreshed ideas or more plausible ways of dealing with belief pluralism as an intransigent fact.
