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from Part I - Sociality
Published online by Cambridge University Press: 03 September 2021
Among legal theorists, as well as sociologists and historians of law, broad agreement prevails that differentiation of practices specialised in particular legal functions has been decisive for the emergence of modern law, if not law in general. Particular significance has been accorded to detachment of the judicial function: complementing primary realisation of law in first-order sociolegal practices and private forms of enforcement, such as blood feud, with secondary realisation through judicial practices and accompanying coercive execution. Kelsen and Hart, the Masters of Legal Positivism, tended to treat positive law exclusively as a normative legal order and largely ignored analyzing first- or second-order sociolegal practices. However, in their brief sketches of the transition from a primitive regime of rules to state law (Kelsen) or a developed legal system (Hart), differentiation of specialised legal practices holds centre stage.
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