DescriptionOne of the most important shifts in the legal system in the course of the twentieth century has been the rise of regulatory and administrative agencies with broad discretionary powers to make and enforce law. The functions of these agencies closely parallel, and frequently displace, those of more traditional legal authorities, and their overall impact has been a dramatic transformation in the structure and shape of law. Internalist legal theory has, however, been peculiarly resistant to taking cognisance of these agencies and the role they play in the legal system, or of the impact they have had on law. Mainstream constitutional theory, for example, has very little insight to offer on the exercise by the Bank of England of its monetary policy-making function; and dominant theories of jurisprudence have similarly little to say about utilities regulation.
Our argument in this paper is that this peculiar silence reflects deep-running problems in the internalist approaches to legal theory that enjoy currency in the common law world. The result of these flaws, we suggest, is that these schools no longer give us any useful insights into the modern legal system. Addressing this requires us to make an analytical and normative shift, closely akin to that which the early American and Scandinavian legal realists sought to achieve. We outline the three central elements of this shift: looking at law as an instituted process rather than as a body of rules; placing the civil legal system and the regulatory/administrative legal system in a common frame of reference; and putting the focus back on the functions actually discharged by legal institutions, rather than the ideal-typical constructs that currently dominate legal theory.
|3 Sept 2019
|Society of Legal Scholars Annual Conference
|Preston, United Kingdom
|Degree of Recognition