Legal disintegration and a theory of the state

Abstract

This paper describes a topology of legal thought and the social conditions of which that topology is a component. It is proposed that legal thought is composed of a core and periphery and that the whole structure roughly corresponds to the dichotomous and fragmented political economy of the modern democratic welfare state. Part I is a description of the structure of legal thought. In this sense, legal thought is considered to have a core and a periphery, both of which interact in ways that I call transition and reintegration. The core comprises a model of courts, litigation and cases; a private law model of social order; ethical justification; interpretive reasoning; and a hegemonic view of legal influence. The periphery, in its turn, is composed of legislation and statutes; a public law model of social order; policy analysis as justification; positivist legal interpretation; and a marginalist view of legal influence. Part II describes structure of law and its relation to political economy, including tendencies toward reintegration in the peripheral aspects of political economy emphasizing social cooperation. The Conclusion considers the place of traditional legal practice on a new landscape.