Some observers believe that the traditional role of borders as buffer regions to protect the national security of nations began to change in the 1950s. Lawrence Herzog, a professor of Mexican-American studies at San Diego State University, described the development of large cities along the borders of nations, which he called cross-border metropolises that share ecological resources such as water and environmental issues such as sewage control and air pollution. Traditionally, different laws and customs in border areas have hindered economic development by impeding the movement of labour and goods across borders. But with the emergence of two major regions of the world – Western Europe and the border area between the United States and Mexico – the economic development of cities along the borders is closely linked. Border disputes can last for centuries and undermine efforts to end long-standing animosities. In May 1994, during the signing of the historic agreement on Palestinian autonomy in the Israeli-occupied West Bank and Gaza Strip, the Chairman of the Palestine Liberation Organization, Yasser Arafat, suddenly refused to sign six cards attached to the agreement. After lengthy discussions with his advisers, Arafat added an Arab warning to the maps, indicating that the borders of the ancient West Bank city of Jericho were still disputed, and then he signed the agreement. However, even this modest assertion presupposes a boundary between law and non-law, just as institutions such as law schools, law libraries, and bar exams assume much the same. But the line between right and non-right is changing, as our contemporary response to Langdell students` complaints shows. Change was not unidirectional, and the boundaries of the law, while generally broader today than they were most of the time in the past, seem to extend at some times and narrow at others.
Although the boundaries between law and non-law are not stable, they are nonetheless important for delineating the nature of law, legal reasoning and legal decision-making. After all, to know what the law is, you have to know which law is not. In order for an agreed dividing line to become a fixed legal boundary, both owners must not only agree, but also agree, because they really cannot locate the line. This does not mean that neighbours have to hire a surveyor to try to find the border. It is sufficient that they cannot reasonably locate the line from their descriptions of documents, a previous survey recorded in land records, or ground markings. Boundaries are used to establish private and public ownership by determining the exact location of points where one parcel of land differs from another. They are also used to mark the functional and judicial boundaries of political subdivisions. For example, in the United States, boundaries are used to define villages, cities, towns, counties, and states. The anecdote is instructive.
For law is not simply the sum of all the rules, principles, procedures, norms and institutions that exist throughout society,3×3. I intend that the statement is not controversial in the text, agnostic between positivism and natural law, and even agnostic with regard to virtually all existing theories of the nature of law. I only want to insinuate that law is not congruent (in philosophical jargon by extension) with the totality of the normative and institutional landscape of a society. Finally, even the leading theorist of natural law, Thomas Aquinas, distinguished between natural law and human law, suggesting that human law is not in agreement with the idea of the whole of the law considered. St. Thomas Aquinas, Summa Theologiae pt. 1, 1–11 q. 91, q. 96, art. 2, 4 (R.J. Henle trans., Univ.
Notre Dame Press 1993) (1269-70); see also John Finnis, The Truth in Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 195, 203–05 (Robert P. George ed., 1996); Louis W. Hensler III, A Modest Reading by St. Thomas Aquinas on the Relationship Between Natural and Human Law, 43 Creighton L. Rev. 153, 153-54 (2009). And Ronald Dworkin, the modern legal theorist who has most advocated the rejection of the idea that law consists only of the norms identified by a legal rule of recognition, nevertheless excluded the political considerations of the “empire” of law, Ronald Dworkin, Law`s Empire 221-24 (1986); Ronald Dworkin, Taking Rights Serious 84–85 (1977) [hereafter Dworkin, Taking Rights Serious], and nevertheless acknowledged that the case law, which was more narrowly understood, had some type of “gravitational force”, id. at 111-15. It is therefore difficult not to agree with Professor Joseph Raz`s conclusion: “As long as we allow a population not to be governed by the law, there must be a difference between legal norms and those that are not legal, are not part of the law.” Joseph Raz, Incorporation by Law, 10 Legal Theory 1, 15-16 (2004). It follows that there are sources of normative guidance and factual insight that legitimately exist in society, but which are nevertheless not part of the law.4×4. Conversely, there are also sources and arguments that are legally legitimate or permissible, but are not considered legitimate or permissible sources of leadership and enlightenment in society at large. While this aspect of the specificity of law—its ability to validate what is otherwise socially invalid—is not the main focus of this essay, a good example comes from Oliver Wendell Holmes` observation on stare decisis that “it is repugnant to have no better reason for a rule of law than that established in the time of Henry IV.” The Way of the Law, 10 Harv.
457, 469 (1897). Jeff Lucas is a lawyer and surveyor in private practice in Birmingham, AL. He is an author, columnist, speaker, seminar leader and training provider. Its monthly newsletter, The Lucas Letter, focuses on legal issues and the practice of surveying. For more information, see www.lucasandcompany.com The history of law is no less the history of its borders. And the history of legal theory or jurisprudence in the narrow sense,1×1. Today, scholars tend to treat “jurisprudence” and “philosophy of law” as more or less synonymous. The tendency, however, is more resilient, because it falsely suggests that only the tools of philosophy, and in practice only the tools of contemporary analytic philosophy, are capable of examining the nature of law itself, as opposed to law in some places and as opposed to certain branches of law.
