What is a legal system? New book overturns long-held views

An exhaustive new book by a Cornell University law professor effectively challenges the ideas on the nature of the law of two reigning legal theorists and may soon become a classic in the field, say prominent legal scholars.

Ten years in the making, "Form and Function in a Legal System: A General Study" is being published this month by Cambridge University Press. Its author, Robert S. Summers, is the William G. McRoberts Professor of Research in the Administration of the Law at Cornell Law School. He regularly teaches jurisprudence, legal theory and contracts.

Summers' book addresses the fundamental question: "What is the nature of a legal system?" and shows that it cannot be reduced to a mere system of rules, as previously held by Hans Kelsen and H.L.A. Hart, two of the great analytic legal theorists of the 20th century. Indeed, Summers views rules as just one of many functional legal units -- legislatures and courts are others -- that are organized to form a system. "A discrete legal unit does not function independently," he writes. "It must be combined and integrated with other units."

"'Form and Function' is a triumph," writes Professor Tony Wier, a Fellow of Trinity College, the University of Cambridge. "Wherever one looks in the book one finds something that strikingly bespeaks acuity and wisdom, presented in a perspicuous style."

Cornell Law Professor Robert Hillman, who will chair a national symposium on the book's ideas at the end of March at the Law School, said: "Bob's book is a very significant, fresh contribution to legal theory because it focuses not on rules but on the importance of form in the law." Hillman praised the book for its "clear and diverse insights, which will be of interest even to those who do not consider themselves primarily legal theorists."

The author employs a "form-oriented" mode of analysis as the main method for elucidating the nature of functional legal units and of the legal system as a whole, and he looks at each unit in terms of its purposes, overall form, constituent formal features, and material or other components. In addition to institutions such as legislatures and courts, the book goes on to apply this approach to legal precepts -- such as rules and principles -- and to such non-preceptual legal units as contracts and property interests, sanctions and remedies, interpretive and other legal methodologies and more. Summers also challenges the long-held idea in some quarters that legal form is inherently formalistic. "It's not, when it's well-designed and serves desirable ends and values," he asserts.

Summers is quick to credit others in the making of the book, notably, "enormous help from students in my annual seminar, Jurisprudence and Legal Theory, and extraordinary research support from student research assistants, library staff, and colleagues, including the past three deans of the Law School."

A preliminary copy of Summers' book also had the honor of becoming the 700,000th volume to be added to Cornell Law Library's collection -- recognized in a special ceremony held last November.

Summers also is co-author (with James J. White) of "The Uniform Commercial Code," the most-cited treatise on the code by courts and scholars, now in its fourth edition. In addition his name appears as author, co-author or editor on the spines of 48 books on law, jurisprudence and legal theory.

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