Properties of law: modern law and after
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Abstract
Kaarlo Tuori’s latest book aims to provide an examination of modern law’s main properties – as he puts it, a ‘legal-theoretical recapitulation’. Three properties in particular characterise modern law: sociality, normativity, and plurality. Sociality, because law would not exist without society. Normativity, because how normativity appears in law takes different forms. Plurality, because law exists under conditions of plurality, both in the sense that there is no one type of law and that multiple legal orders co-exist and engage constantly, sometimes overlapping, sometimes in conflict. Tuori’s recapitulation is informed by two methodologies: Max Weber’s ideal-type, and Legal Positivism as defended by Kelsen and Hart. The ideal-type is used in order to compare the most prominent form of law, that of the state, vis-à-vis non-state law. Legal Positivism operates as a counterpoint to Tuori’s preferred version of legal positivism. According to Tuori, Legal Positivism suffers from six ‘legal fallacies’: 1. positivity of law; 2. bracketing of law’s sociality; 3. non-recognition of law’s sub-surface layers; 4. separation of law and morals; 5. non-recognition of non-state law; and 6. a black-box view of law’s unity and plurality. Taking these together, Tuori claims that Legal Positivism is inadequate to understand law as it exists. Because the role of the social in law has been extensively explored by sociolegal scholars, Tuori tries to differentiate his account. The main reason, or so he claims, is that he examines society within law, not law within society. By that he means that he explores ‘Law’s inherent sociality’, which grounds legal normativity in social facticity’ (50). In particular, the difference is that he is focused on ascertaining ‘the channels through which external societal influences... enter the law’. He explores ‘the internal relationship of law from an internal, participation’s position’ (50). And the book is written as someone who works as a legal scholar in a law school, that is, it offers an internal participant view of the law. The book contains a prologue, thee parts, and an epilogue. The prologue introduces the themes of the book and lays down the basic conceptual architecture of the book. Each part is dedicated to one property. The epilogue extends some of the themes covered in the book and discusses the future of law in light of the advent of digital technologies.