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Introduction—Legal Unity: The Question
The unity of legal systems has long tormented legal positivists. The facts seem plain enough: Legal systems exist; they each consist in the various rules and principles comprising them, and in these alone; and the belonging of a certain rule or norm to a certain system normally entails that it is not part of a separate, different one. Yet what is it exactly that unifies conglomerates of rules to legal systems? Indeed, while the question of unity has drawn the attention of luminaries such as Jeremy Bentham and John Austin, as well as more modern thinkers such as Hans Kelsen, HLA Hart, and Joseph Raz, it is not an easy one to articulate clearly, let alone satisfactorily answer.
First, it is not immediately clear what the notion of ‘unity’ means. What exactly is one after, when one attempts to explain the unity of legal systems? Positivist jurisprudence commonly holds that the question is what transforms an assemblage or a batch of norms to a normative system or order. In his formative The Concept of a Legal System, 1 Raz argued that the problems of identity (viz. of how we can tell if legal element n is part of a system s) and structure (viz. of the patterns relating various ns in s) are two of the four central pillars of the analytical study of legal systems. 2 The useful distinction notwithstanding, the two problems are related: Since Raz believes that laws can validate each other to thereby interrelate juridically, the structure of a legal system potentially affects its identity—as in the case of an English rule mandating reliance on an EU law rule, or an Israeli rule stating that marital disputes shall be settled based on Jewish Law. Conversely, we can ask why a certain legal norm belongs to a certain legal order; this way of putting the question emphasizes the type of connections, if any, between the norms comprising the system. As will be seen, positivist theories diverge on their answer to this question.
A second ambiguity arises because there are at least two ways of accounting for legal phenomena, generally, and for the unity of law, specifically. On the one hand, traditional positivist jurisprudence...