I argue that a concept of law that assigns primacy to the regulative role fulfilled by legal systems is best suited for explaining law’s discrete practice areas. Logically prior to their structuring of a legal system, individuals interact, hence transact. This in turn gives rise to obligations, commitments, resentments and, generally, the group’s “deontic” authority over what is right or wrong, and what “ought” to be done or not be done. Authority organizes, coordinates and prioritizes those obligations, resentments and powers; and, more abstractly, balances group members’ security and liberty interests. So a legal system emerges and evolves, engendering an apparatus that is, in the first instance, regulative. This regulative point of view facilitates the development of a concept of law capable of cohering with theories of discrete legal areas. The piece pays special attention to the late Professor Ronald Dworkin’s vision of the judge as practical philosopher, an idea that is central to the regulative perspective outlined in the article. Dworkin’s approach is also important because it increasingly informs explanatory projects tackling discrete legal practice areas. The article ultimately disagrees with Dworkin’s nonpositivist view of law, and shows why the regulative perspective is both sensible and tends to support claims traditionally advanced by legal positivism.
Alani Golanski. "Legal Theory From the Regulative Point of View" Cumberland Law Review
Vol. 44 (2013)
Available at: http://works.bepress.com/alani_golanski/8/