Author:

Keywords:

Functions of law, Characteristics of law, Limits, Social Sciences, Law, Government & Law

Abstract:

At the beginning of his well-known book, Law's Empire, Ronald Dworkin writes: "We live in and by the law. It makes us what we are: citizens and employees and doctors and spouses and people who own things."1 Dworkin still appears to believe in the all-embracing power of law to rule human behaviour and affairs in the greatest of detail. Law's Empire is a vigorous plea in favour of the potential of law, regulation, and adjudication to govern institutional behaviour and the lives of so many people according to the principles of justice and fairness. Dworkin's legal optimism, notwithstanding its argumentative strength, undoubtedly runs counter to a widespread awareness of many contemporary lawyers that law often falls short in meeting the societal expectations which are projected on it. Although it still seems as if society reposes confidence in lawyers' and judges' skills to solve through law the problems of the world, many lawyers, judges, legal scholars and citizens often no longer have an unbounded trust in the potential of law to govern society in a just and fair way. They often experience the "limits of the law", as they are confronted with striking inadequacies in their legal toolbox, with inner inconsistencies of the law, with problems of enforcement and obedience, with undesired side-effects, and so on. Preoccupation with legal shortcomings and with issues of adequate implementation of existing legal frameworks has of course always been the core business of legal practice and doctrine. But the contemporary experience of law's limits seems to be of another, more complex nature, which raises more fundamental questions relating the role of the law in contemporary societies. One of the basic intuitions underpinning Facing the Limits of the Law, is that a piece-meal improvement of the relevant legislation and case-law will not in itself be able to restore trust in the potential of the law. Our unease with law's limits surely calls for appropriate remedies. Yet such strategies cannot be found, as long as there is no clear insight into what kinds of fundamental shortcomings legal practitioners face throughout their areas of law. Put differently, we need to spell out more analytically different types of limits of the law, through a variety of legal disciplines, before we can justifiably deal with the limits of the law. The second intuition underpinning the following chapters of Facing the Limits of the Law is of a more sociological kind. It comes down to the idea that our con- temporary preoccupation with law's limits is not an isolated phenomenon, as it is embedded in broader cultural transformations characteristic for late-modern societies. By the term 'late-modern', reference is made to the predicament of our contemporary world in which the key-ideas of the Enlightenment (such as the belief in individual fulfilment, in the progress of science and technology, or in the regulatory capacities of bureaucratic institutions), though still informing the design of our public and private daily lives, are experienced as deeply problematic. Hence, a better understanding of the late-modern context promises to give us a more profound understanding of our unease with contemporary law. Given the foregoing intuitions underpinning Facing the Limits of the Law, three research questions determine the content of this book.? What types of limits of the law can be mapped throughout a variety of legal disciplines' How to provide in a conceptual framework that enables and structures such a mapping? What are the important social and cultural transformations responsible for our preoccupation with the limits of the law? And how might a better understanding of these broader trends help elucidating this experience of limits in distinct areas of the law? How can we deal with those limits of the law in a justifiable way? While the second and the third research question are addressed more systematically in the final chapter of this book, this introductory chapter focuses on the first research question. The reader will discover a broad conceptual framework for mapping types of limits of the law2, which are used and refined in the subsequent chapters throughout an extensive range of areas of law.3 The introductory chapter, and with it the whole volume, assumes that the analysis of law's functions will help to map (types of) limits of the law (section 2)4 which, in a further phase, can be further developed through an analysis of the characteristics of the law (section 3). Accordingly, the first research question can be reformulated as follows: what characteristics of the law restrain law's ability to perform its most basic functions' Before fleshing out the conceptual framework underlying the enterprise of Facing the Limits of the Law, it is important to note that the whole project is undertaken from a participant's perspective on the law, and not from an external point of view.5 Facing the Limits of the Law identifies the limits of the law which legal experts and practitioners experience in their daily legal practice. Thus, our understanding of the law and its limits will not be purely neutral: It tries to grasp the [?] character of our legal practice by joining that practice and struggling with the issues of soundness participants face.6 Moreover, Facing the Limits of the Law departs from lawyers and citizens' acquaintance with the law as it is embedded in the tradition of the Rechtsstaat and the rule of law. This is not to say that our analysis of the limits of the law is only restricted to (branches of) national State law. It also addresses issues in European and international law against the general background of general principles, core values, and aspirations underpinning the traditions of Rechtsstaat and the rule of law. In this respect, Facing the Limits of the Law largely diverges from existing literature on this topic. It does not focus solely on 'edgy' topics like the law's relationship to acts of terror7, states of emergency, gestures of surrender, payments of reparations, and offers of amnesty.8 On the contrary, it primarily deals with the limits of the law experienced by legal practitioners in daily legal practice. Moreover, while previous literature is mostly based on a neutral and external account of law's functions, and focuses on descriptive 'limits of law imposed by the nature of and changes in the societies in which law operates'9, Facing the Limits of the Law is much more engaged in its outset. It aims to understand law's functions and characteristics in light of the values and normative aspirations of the rule of law. It therefore does not distinguish between 'descriptive' and 'normative' limits of the law. © 2009 Springer-Verlag Berlin Heidelberg.