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8 March: Michael Giudice

“The Idea of Legal System: One Thought Too Many?”

Abstract: One prominent way for multiple legal orders to be organized, and in that way co-exist, is for one order to claim supremacy over the other(s).  This is of course a familiar state-centric view of law, and according to some, such as Hans Kelsen, H.LA. Hart, and Joseph Raz, it is part of the very nature of law that legal orders make systemic claims to supremacy.  Such a view depends heavily on a particular concept of legal system, which has been both observationally available in the practices of states (but not only states) and substantially developed in legal theory (eg, analytical legal philosophy).  However, this system-centred view of law comes with some significant costs: as an account of the nature of law with universal aspirations it faces descriptive-explanatory challenges in terms of its representation of the social facts of many instances of law, but it also often acts as an obstacle to politically-sensitive objectives.  I shall explore the way and extent to which the system-centred view of law is socially constructed, and therefore amenable to revision, as well as the political implications at stake in such revision.  Since political implications are best illustrated with particular contexts in mind, I shall draw on observations about the dynamic co-existence of state and First Nations legal orders in Canada, as well as relations between Community law and member-state law in the European Union.