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How Autonomous is Law?

  • Location: Public Lecture, Law and Society Research Group, University of Sydney
  • Research area: Legal history

Nov 2007, Christopher L. Tomlins

Socio-legal studies forever debates whether law is the product of internally-constructed rules, procedures and rationales or an effect of external social forces and interests. Traditionally the debate pitted “formalists” who defended law’s autonomy against “instrumentalists” who claimed law was a creature of exogenous circumstance. The debate was transformed in the later twentieth century by fundamental refinements in Marxism, which produced accounts of law’s “relative autonomy,” followed by innovations in critical social theory that held all discourses (including law) were epistemically autonomous. Other parallel formulations claimed not only that law was autonomous but that law was in fact constitutive of the very social circumstances once held to determine its development. This paper reviews the highlights of the debate while adopting a perspective outside it. I treats the autonomy question as relational – if law is autonomous it must still be autonomous in relation to something – and ask in relation to what? The debate assumes the answer is “society,” so I ask how the social become law’s relational other, and what other relationalities might be brought into play

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