Teaching AIDS by Dilip K. Das

Author:Dilip K. Das
Language: eng
Format: epub
ISBN: 9789811361203
Publisher: Springer Singapore

5.1 Structure and Process in Law

The legal system is often understood to be a coherent structure of rules, procedures and remedies that serve as a framework for maintaining social order, a view that ultimately derives from Thomas Hobbes’ hypothesis in The Leviathan that law emerged as a mechanism for the preservation of the community against the baser instincts of individuals.1 This is despite the fact that the legal system has actually developed in piecemeal fashion, in ways that are often contingent on needs that have emerged historically. Thus, H.L.A. Hart in The Concept of Law argues that law is a hierarchically coordinated structure of “primary rules of obligation” and “secondary rules of recognition, change and adjudication” that is the “heart of the legal system” (Hart 1961, p. 98). “Making the bits and pieces ‘systematic’”, writes Sally Moore, “is the after-the-fact work of professional specialists, or the before-the-fact work of political ideologues” (Moore 1978, p. 9).

The systematization of law as a pedagogic technique is undertaken to constitute it as a “science” of jurisprudence. To conceive of a field of knowledge as a science is to emphasize its objective dimensions and to excise from it whatever is held to be subjective:For the bulk of modern jurisprudence, the law is public and objective; its posited rules are structurally homologous to ascertainable ‘facts’ that can be found and verified in an ‘objective’ manner, free from the vagaries of individual preference, prejudice and ideology. Its procedures are technical and its personnel neutral. Any contamination of law by value will compromise its ability to turn social and political conflict into manageable technical disputes about the meaning and applicability of pre-existing public rules. (Goodrich et al. 1994, p. 17)

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