The Limits of the Law
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1 Introduction At the beginning of his well–known book, Law’s Empire, Ronald Dworkin writes: “We live in and by the law. It makes us what we are: citizens and employees and doctors and spouses and people who own things.”1 Dworkin still appears to believe in the all–embracing power of law to rule human behaviour and affairs in the greatest of detail. Law’s Empire is a vigorous plea in favour of the potential of law, regulation, and adjudication to govern institutional behaviour and the lives of so many people according to the principles of justice and fairness. Dworkin’s legal optimism, notwithstanding its argumentative strength, undoubtedly runs counter to a widespread awareness of many contemporary lawyers that law often falls short in meeting the societal expectations which are projected on it. Although it still seems as if society reposes confidence in lawyers’ and judges’ skills to solve through law the problems of the world, many lawyers, judges, legal scholars and citizens often no longer have an unbounded trust in the potential of law to govern society in a just and fair way. They often experience the ‘limits of the law’, as they are confronted with striking inadequacies in their legal toolbox, with inner inconsistencies of the law, with problems of enforcement and obedience, with undesired side–effects, and so on. Preoccupation with legal shortcomings and with issues of adequate implementation of existing legal frameworks has of course always been the core business of legal practice and doctrine. But the contemporary experience of law’s limits seems to be of another, more complex nature, which raises more fundamental questions relating the role of the law in contemporary societies. One of the basic intuitions underpinning Facing the Limits of the Law, is that a piece–meal improvement of the relevant legislation and case–law will not in itself be able to restore trust in the potential of the law. Our unease with law’s limits surely calls for appropriate remedies. Yet such strategies cannot be found, as long as there is no clear insight into what kinds of fundamental shortcomings legal practitioners face throughout their areas of law. Put differently, we need to spell out more analytically different types of limits of the law, through a variety of legal disciplines, before we can justifiably deal with the limits of the law. The second intuition underpinning the following chapters of Facing the Limits of the Law is of a more sociological kind. It comes down to the idea that our con1
R. Dworkin, Law’s Empire (London: Fontana Press, 1986) vii.
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Erik Claes, Wouter Devroe and Bert Keirsbilck
temporary preoccupation with law’s limits is not an isolated phenomenon, as it is embedded in broader cultural transformations characteristic for late–modern societies. By the term ‘late–modern’, reference is made to the predicament of our contemporary world in which the key–ideas of the Enlightenment (such as the belief in individual fulfilment, in the progress of science and technology, or in the regulatory capacities of
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