A Theory of Law in the Age of Organizations

Abstract

Theories of law have failed to account for changes that have taken place in law and society with the rise of organizations. Ed Rubin observed a quarter century ago that H.L.A. Hart’s theory of law is inconsistent with a great deal of legislation and administrative law, but legal theorists have paid no heed. Here I present a theory of law more fitting to modern law. Theories of law propounded by Lon Fuller and Hart revolve around rule systems of social ordering, but law does much else that does not fit this characterization, particularly when utilized by government organizations. To provide a more refined perspective, I distinguish law as social rules from government uses of law, and I identify three subtypes of the latter. Then I elaborate the differences and interaction between these two orientations, in particular engaging with Hayek’s notion of background legal rules. Following these theoretical clarifications, I show how the aggregate actions of organizations and instrumental uses of law by government have produced a relatively fixed background legal fabric within society. Then I portray courts as organizations that process cases, a markedly different perspective from standard legal theory discussions of judging. Finally, I explain how this view of law points to a crucial clarification of the status of Hart’s theory and theories of law by analytical jurisprudents generally. The section headings are: Jurisprudential Blindness to Aspects of Modern Law; Managerial Organizations Wielding Law; Two Orientations of Law; Sequential Emergence of Orientations, and Their Interaction; Why Common Law is not a Spontaneous Order Reflecting Society; Legal Fabric of Society; Courts as Organizations; Variation of Law in Societies; From Hart to a Social Historical Theory of Law.