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Trends in Theories About Law: Comprehensiveness in Conceptions of Constitutive Process (with Harold D. Lasswell), 41 George Washington Law Review 1 (1972)


The elements of a comprehensive process of authoritative and controlling decision (including both a constitutive process by which law is made and applied and an emerging flow of public order decisions for the shaping and sharing of all values) are of course omnipresent in all of mankind's different territorial communities, ancient and modern. Our inherited theories about law differ immensely, however, in the comprehensiveness and precision with which they make reference to these elements. Quite commonly such theories, whether described as "political thought" or "jurisprudence," fail to focus clearly upon the interrelations of authoritative decision and effective power process, and inquiry about such interrelations is made to proceed through imprecise and diverse conceptions of "community," "state," "politics" and "law." Some theories emphasize—to the detriment of deliberate, innovative creation and change—that the genuine "constitution" of any community must consist of the perspectives which community members create in each other about the requirements of decision by their continuous cooperative, or "customary," behavior; other theories seek to confine the reference of "constitution" to deliberately created instruments, to the detriment of inquiry about ongoing customary processes. With respect to both conceptions of constitution, emphasis is often placed more upon features designed to limit decision than upon the decisions which in fact establish and maintain the process.

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