ARTICLE: Cane on Public Law in The Concept of Law

Peter Cane's 'Public Law in The Concept of Law' appears has been made available by the Oxford Journal of Legal Studies:

This article adopts what Frederick Schauer calls a ‘non-essentialist’ approach to understanding the nature of law, which can be contrasted with the widely practised method of ‘conceptual analysis’. Instead of seeking a set of necessary conditions for the existence of law in all possible worlds, non-essentialism reflects upon pervasive features of actual legal systems. The article focuses on constitutional and administrative law and contrasts modern standard accounts of public law with HLA Hart’s highly influential threefold list of ‘necessary’ types of public ‘secondary rules’: rules of recognition, change and adjudication. The argument is that non-essentialist methodology not only yields a rich descriptive account of certain fundamental characteristics of modern legal systems but also provides theoretically significant insights into how law is conceived in many contemporary societies. Because the resulting account is firmly rooted in actual social and legal practices, it provides a more fine-grained and less abstract theory of those practices than is offered by Hart’s approach, based as it is on hypothetical stories about how law ‘might have developed’.