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Decentralisation and the Limits of Jurisprudence

Research output: Chapter in Book/Report/Conference proceedingChapter

Original languageEnglish
Title of host publicationHans Kelsen’s Pure Theory of Law: Conceptions and Misconceptions.
EditorsMatthias Jestaedt, Ralf Poscher, Jörg Kammerhofer
PublisherFranz Steiner Verlag
Pages63-81
Published2020

King's Authors

Abstract

One important, yet still under-theorised aspect of the Pure Theory of Law is its treatment of what Kelsen called the ‘legal technique’, ie an analysis of how exactly the law does what it does. In this paper I try to outline both the specific intermediary theoretical location of the legal technique and its decentralised nature by comparing the technique of the law with another one: the technique that allows us to transfer data on the internet, the so-called internet protocol suite. This will help us, I believe, in getting a clearer understand- ing of the different levels or layers of analysis and keep separate what is done from how it is done. After having determined the exact yet often misallocated level of some of the most relevant insights of the Pure Theory I will then analyse the specific architecture of what I call the legal stack. This is followed by a discussion of the operation of the legal protocol and an analysis of the nature of its decentralisation. I argue that this stack analysis helps us see more clearly that (i) the law is ultimately always a matter of the use of force; that (ii) the law operates not by simply telling people what to do, but that it tells people what to do by conditioning the use of force; and (iii) that whilst the use of force might be fundamental to the legal system, it is not its most significant part: what is more significant than the use of force is all the things the law does by means of this use of force.

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