Legal System, Legality, and the State: an Inter-Institutional Account

Abstract

We aim in this paper to explore several related challenges to contemporary analytical legal theorists who accept as theoretically foundational the state-based view of legality and legal system advanced by H.L.A. Hart. We contend that this approach contains internal explanatory problems which limit the view’s capacity to account for novel prima facie legal phenomena outside the typical experience of the law-state. We supplement the analytical approach by advancing the rudiments of what we call an ‘inter-institutional theory of legality,’ a theory of legality derived from a morally-neutral, descriptive-explanatory picture of legal system qua system of legal institutions. Our theory additionally enables us to account for the novel prima facie legal phenomena we identify, and to conclude that while prior analytical legal theorists’ approaches to legality and legal system were historically right to depart from the example of the municipal legal system, that example and departure point are no longer most salient, so explanation of the legality within the state is no longer sufficient as a general explanation of legality. We aim in this pa per to ex plore sev eral re lated chal lenges to con tem po rary an a lyt i cal le gal the o rists who ac cept as the o ret i cally foun da tional the state-based view of le gal ity and le gal sys tem ad vanced by H.L.A. Hart. We con tend that this ap proach con tains in ter nal ex plan a tory prob lems which limit the view’s ca pac ity to ac count for novel prima fa cie le gal phe nom ena out side the typ i cal ex pe ri ence of the law-state. We sup ple ment the an a lyt i - cal ap proach by ad vanc ing the ru di ments of what we call an ‘inter-in sti tu - tional the ory of le gal ity,’ a the ory of le gal ity de rived from a mor ally-neu tral, de scrip tive-ex plan a tory pic ture of le gal sys tem qua sys tem of le gal in sti tu - tions. Our the ory ad di tion ally en ables us to ac count for the novel prima fa - cie le gal phe nom ena we iden tify, and to con clude that while prior an a lyt i cal le gal the o rists’ ap proaches to le gal ity and le gal sys tem were his tor i cally right to de part from the ex am ple of the mu nic i pal le gal sys tem, that ex am - ple and de par ture point are no lon ger most sa lient, so ex pla na tion of the le - gal ity within the state is no lon ger suf fi cient as a gen eral ex pla na tion of le - gal ity. 86 CULVER / GIUDICE