You are hereBlogs / LearningLaw's blog / What is Law
What is Law
The Nature and Functions of Law
Finding out what Law is can be compared to being put in the middle of forest. You do not know where you but if you look closely at your surroundings you will understand the laws.
Law is a formal mechanism of social control, Order is therefore necessary but the form which it is maintained is certainly not universal as many anthropological studies have shown.
Many scholars have expounded on the “true nature of law” One constant theme in this discussion is that the idea of law (or the ideas of what it could or might be) “has always been a contested one”
The law is not a single or whole truth, in law truth is subjective to the person
A simple answer to “what is law”
A set of rules
Why do we need laws?
to regulate & control human behaviour so all can live in a fair & peaceful society
How (specifically) does the law regulate & control society?
Permits certain behaviour (driving if a licence is obtained).
Provides standards of care, of fairness or justice for a cooperative society
Provides programmes for welfare & good of society
Prohibits certain behaviour (murder)
Punishes lawbreakers
Resolves disputes (courts)
A moral judgement that is not objective but subjective
Law = Form, Function, Content
What counts as “law” or a legal system is controversial
The debate is wide-ranging but it will include all or some of the following:
The form law takes
The function it performs &
The content it can include
The nature & context of the society under discussion, will determine the mix of the above features
Austin's command theory
Laws are commands of a sovereign backed by the threat of sanctions
Criticisms of Austin’s Theory
Weaknesses of the theory are almost better known than the theory itself:
Hard to identify a "sovereign"
A focus on a "sovereign" makes it difficult to explain the continuity of legal systems.
Hart's primary & secondary rules
(a) Primary rules: rules that impose duties & obligations on people, rules telling people how to act;
(b) Secondary rules: rules about rules- rules of recognition, rules of change, rules of adjudication.
Hart - theory of legal positivism. Having regard for general principles but not bound by them.
What on earth is Legal Positivism?!
Austin “The existence of law is one thing; its merit and demerit another.”
word "positivism" was probably first used to draw attention to the idea that law is "positive" or "posited," as opposed to being "natural" in the sense of being derived from natural law or morality.
It emphasises what the law actually is rather than what it should be: it cannot, like natural law, be defined by reference to its content, but is what is commanded by the sovereign.
Legal positivism and natural law
Legal positivism stands in opposition to various contrary ideas in the tradition of natural law - a body of legal theory asserting that there is an essential connection between law and justice / morality. Many legal positivists endorse the separation thesis: the idea that legal validity has no essential connection with morality or justice. A law is a valid law if posited, in the proper manner, by a recognized authority, regardless of its moral implications.
Dworkin's legal principles
Dworkin = anti-positivist legal theory.
Dworkin emphasised law's profound interpretative nature.
His argument consists of two main premises:
First, determining what the law requires in each & every particular case necessarily involves an interpretative reasoning.
Second, interpretation always involves evaluative considerations.
Question - can law simply be understood, and applied, without the mediation of interpretation?
In short according to Dworkin law is what you can argue it to be
Natural Law
Focused on human condition or pursuit of happiness
The State responsible for bringing subjects happiness
Function of law = provide a code of conduct (temporal & moral) for people to live by & bring them happiness.
St Thomas Aquinas (NL)
Law = “an ordinance of reason for the common good, made by him who has care of the community and promulgated”
The established order is supported by eternal law
If the lawmakers are corrupt & evil, & if they make “wicked” laws, those laws will not be binding. (As demonstrated by Martin Luther King)
Function of law = promote the common good in society
Natural Law
All law derives from nature or natural world or a supreme being
Just laws are immanent in nature i.e. they can be “discovered” or “found” by use of human reason
Law contains desirable standards of conduct for man to follow
Law exists independent & outside of positive law (people-made law, legal system & processes)
NL holds that people have certain inherent rights independent of positive law
There are at least 2 senses to the question of “What is law?”
1st Sense - Form
When some people discuss the law, they are often referring to the form of the law
E.g. they may equate law with a set of rules/law (e.g. statutes & regulations) or with one rule of law in particular e.g. Magna Carta (The Charter established that law is above the king).
Form – a) Institutions
Others may equate law with government & a legal system
In this sense law (a legal system) may include Institutions e.g.
Parliament (which makes laws like statutes & regulations)
Courts - which make law by interpreting the laws made by Parl, & by changing the common law (case law). The courts resolve disputes by referring to both sets of law
Form – b) Personnel
Others may equate law with specific personnel who carry out “law roles”
E.g. Police – who are part of the govt bureaucracy.
Legal Profession (solicitors, barristers, legal executives, etc)
Judges – who make law by interpreting Parliament-made law (statutes, regulations) and common law (cases)
Form – c) Legal Processes
Again, some may equate “law” with legal processes
E.g. judicial processes – adjudication or the judging of cases by judges
E.g. legislative processes – the making of legislation (statutes & regulations)
Summary: 1st sense of “What is Law”
Refers in some way to the form of the law e.g. Law =
A set of rules (content)
A government and/or legal system
Institutions
personnel
A set of legal processes
Legislative
adjudicative
2nd sense of “What is law” – function
This is the prescriptive or normative sense
When we speak of “law” in this sense we are referring to standards of conduct that are regarded & accepted as the norm
Law can (or should be able) to:
Providing Order & Predictability
Resolve disputes.
Protect Individuals & property.
Provide for the General Welfare.
Protect Individual Liberties.
One example of a norm is: all societies prohibit incest (but their ideas of what constitutes incest may differ markedly)
2nd sense of “What is Law”
But when we consider law in this way (as a set of standards of conduct), many questions arise e.g.
Where do these standards come from?
Are the value systems underpinning them, universally accepted or applicable?
Are they a product of human activity or are they derived from other sources?
This is the first part, there will be a second part following from this. Dealing with problems of what is law, social contact, philosophers, and questions.
Post new comment