This book develops the rudiments of a sociological perspective on state law and legal theory. It outlines a distinctive approach to theoretical enquiry that offers an improved understanding of law as a social and institutional phenomenon. The book draws upon Max Weber's sociological and juristic writings as a context in which to explore themes arising or selectively developed from a critical reassessment of key aspects of H.L.A. Hart's theory of law. The discussion initially centres around three problematical areas or 'Gordian Knots': essentially weaknesses in the analytical nucleus of The Concept of Law,matters of misplaced emphasis and other elements that, it is argued, have obscured fundamental aspects of a perceived social reality. Using the critique as a point of departure the book explores key issues that Hart merely touched upon or seemingly passed over: the role of the (sociologically inclined) jurist, the defensibility of an 'institutional insider's' perspective, the institutional behavioural dimension of the legal world, and the relational and social power dynamics of law-affected human behaviour.
Hamish Ross is a Senior Lecturer in law at Napier University Law School,Edinburgh.
Part 1 An opportunity to reflect: an opportunity to reflect; issues explored in this book; a point of departure. Part 2 Max Weber's science of social action: Max Weber as social and legal theorist; philosophical influences in Weber; Max Weber's science of social action; towards a sociological perspective on legal theory. Part 3 Hart's nucleic expository theory: Hart's approach to theory; "the concept of law" -Hart's nucleic expository theory; a basis for critique. Part 4 Three Gordian knots: three Gordian knots; first Gordian knot - the problem of perspective; second Gordian knot - the problem of "reductionism" to legal rules; third Gordian knot - the problematic tendency to obscure rationality; the three Gordian knots in retrospect. Part 5 Perspectives redefined: the first Gordian knot revisited; the sociologically inclined jurist; "index" as an ideal type; the official world view. Part 6 "Reductionism" reassessed: the second Gordian knot revisited; normativity in action; social action and legal norms; developing legal relationality. Part 7 Relationality reconsidered: the second and third Gordian knots revisited; the jural relation; legal relationships of social power; a basic conceptual unit. Part 8 Towards a critical legal positivism: outline of a sociological perspective; towards a critical legal positivism.