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2 - Problems and mischiefs

Published online by Cambridge University Press:  05 June 2012

William Twining
Affiliation:
University of London
David Miers
Affiliation:
Cardiff University
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Summary

In law-and-society theory, the phrase ‘law in context’ points to the many ways legal norms and institutions are conditioned by culture and social organization. We see how legal rules and concepts, such as those affecting property, contract, and conceptions of justice, are animated and transformed by intellectual history; how much authority and self-confidence of legal institutions depends on underlying realities of class and power; how legal rules fit into broader contexts of custom and morality. In short, we see law in and of society, adapting its contours, giving direction to change. We learn that legal order is far less autonomous, far less self-regulating and self-sufficient, than is often portrayed by its leaders and apologists. This perspective encourages us to accept blurred boundaries between law and morality, law and tradition, law and economics, law and politics, law and culture. Accepting the reality of blurred boundaries leads to much puzzlement and controversy. Law loses some of its special dignity and some jurisprudential questions cannot be avoided.

In recent years academic law has been dominated by friendly rivalry between two main types of approach. The more traditional one, sometimes known as the ‘black letter’ or ‘expository’ approach, treats the systematic exposition and analysis of legal rules (‘doctrine’) both as the starting point and the almost exclusive focus of the study of law. In this view, sociological, historical, critical and other perspectives are at best ancillary and should only be introduced after the student has gained an extensive basic knowledge of the law-as-it-is.

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Publisher: Cambridge University Press
Print publication year: 2010

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References

Selznick, P., ‘Law in Context Revisited’, Journal of Law and Society 30 (2003), 177CrossRefGoogle Scholar

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