Chapter

Evolution and Revolution

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/9780199735099.003.0008
Evolution and Revolution

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Law's purely predictive character is starkly exposed in revolutionary moments, when people in community together stop paying attention to existing law and government. When words cease describing life in the group accurately, those words cease to be law. “Sovereignty of the people” is a truism or an oxymoron—a truism if it just acknowledges that leadership depends on others' choice to follow, an oxymoron if it translates as leadership of the followers. Power sharing is the path to confidence that our community's moral understandings will make their way into our law and government. Power sharing can help homogenize the degree of predictive effectiveness that lawgivers enjoy, reducing the risk that any one among them will subvert the system. Democratic selection may help morally justify lawgiving, but does not imply that lawgivers ever have a preemptive moral right to be obeyed. Once we see that law and government are not about obeying lawgivers, consent theories of authority lose their point. But that does not diminish the enthusiasm we deserve to have for ways of choosing lawgivers that involve our widespread agreement. The systemic nature of law fulfills our need to trace the legal pedigree of words back to custom—the significance of ultimate constitutive documents clearly comes from custom and nothing else. Central and marginal instances of legal systems correspond to central and marginal instances of human community—we are less community the less we understand each other.

Keywords: transitional moments; will of the people; consent; dynamics of change; legal pedigree; custom; systemic nature; law by degree; predictive effectiveness

Chapter.  12491 words. 

Subjects: Jurisprudence and Philosophy of Law

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