Chapter

How Law Grows Up in a Group

Laurence Claus

in Law’s Evolution and Human Understanding

Published in print August 2012 | ISBN: 9780199735099
Published online January 2013 | e-ISBN: 9780199950478 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199735099.003.0002
How Law Grows Up in a Group

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Law lets us live with people we do not know. Law is the way a growing group uses a group language to fulfill its members' need to interact with unknown people. Law tells us what people are likely to do and to expect, just because they are in our group. Law evolves rather than being created. The evolution of our group customs accelerates when we evolve customs of following leaders, that is, customs of treating the sayings of particular people as expressions of new customs or...laws. The recorded sayings of our leaders become a consultable guide to life in our community. The reality of leadership depends upon community response to the assertions of assertive individuals—so-called “charismatic authority” is not a personal possession, it is a psychological dynamic among people in a group. Niklas Luhmann's pioneering vision of law as a self-evolving social system insufficiently distinguishes law as the system of communication about the character of life in law's community and insufficiently accounts for the “variety of laws.” H. L. A. Hart's “fundamental objection” to treating law as all about prediction fails to recognize the way in which law contributes to moral reasoning. Keeping the words we call our law predictive is a moral reason to do what law predicts. We should act on that reason unless we have morally weightier reasons to do differently. Legal rules do not exist to substitute for moral reasoning. Legal rules exist to inform us about each other, about what is likely to be done and expected in our community. Rules are vehicles for understanding each other, and therein lies their moral contribution to our own all-things-considered judgments about what to do.

Keywords: community; following leaders; power; self-fulfilling signals; charismatic authority; Niklas Luhmann; H. L. A. Hart; legal rules; moral reasoning

Chapter.  5420 words. 

Subjects: Jurisprudence and Philosophy of Law

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