Law and polity contingency, fiction, loss


We often conceive of law and polity as closely linked: law appears as an expression of the customs, values, and choices of a given polity. As a result, many of the transnational normative structures in today's globalized world appear suspicious—detached from any meaningful polity, they seem to fall short of a core promise of legality. But, as this article argues, the image of a law–polity nexus is mistaken, or at least only part of a broader picture. Historically, law has often followed authority, not polity, and in many cases it has been detached from the societies it was supposed to govern. Even for the law of the modern state, the nexus of law and polity is often fictitious. Through notions such as that of constituent power, we construe an imagery of agency which, for most polities, hardly corresponds with real political processes. The link with a polity may be important for the legitimation of law, but it is often tenuous, and we may not lose that much if we conceive of "law" in broader terms.

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