Community as a Legal Concept? Some Uses of a Law-and-Community Approach in Legal Theory
LIVING LAW: STUDIES IN LEGAL AND SOCIAL THEORY, pp. 17-28, Roger Cotterrell, ed., Farnham: Ashgate, 2008
13 Pages Posted: 14 Dec 2011
Date Written: December 13, 2011
This paper argues that ‘community’ should be a central concept of contemporary legal theory. A ‘law-and-community approach’ can remedy pervasive failings in juristic theory and socio-legal inquiries. But community needs to be understood differently from the way that much social science and legal discourse understands it. The concept is too often used rhetorically, with its meaning left vague or suffused with nostalgia. Determining the nature and boundaries of a community is an enduring problem, but one often neglected. This paper proposes that ‘community’ should be seen not as a sociological ‘object’ but as a matter of social relations based on mutual interpersonal trust. Different types of relations of community have different regulatory problems, requirements and possibilities. These contrasting types combine in shifting, overlapping, interpenetrating networks of community which may be national, sub-national or transnational in scope. A sociologically-oriented legal theory should study the regulatory aspects of communal relations. It should replace the old idea of ‘law and society’ as an object of study with a view of law as the regulatory aspect of networks of community – networks existing inside but also across and beyond the boundaries of nation states.
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