So...what exactly is law?
Updated: Oct 5, 2021
Most of us will come across in our mind this question at some period of time. Well...if you didn't, you can consider this now. 🙃
From the moment when we can control our own conduct, we learn about what we are permitted to do and what is unacceptable. Slowly, we learn about society, law, and the police. We are always guided by law — from buying a pen to involving in a car accident. So, what exactly is law?
At first instance, you may say, "It's so easy. Law is..." And you stop there.
There is nothing embarrassing about it. I did the same.
It is actually very difficult to define the term law (legal scholars are still debating on the exact definition until now); unless you *secretly* search this term upon dictionary, which says →
You probably won't be bothered to read this whole definition. So let's cut it down.
Law - "sets of rules of a place which regulates members' conduct"
(Although interpretative sociologists would argue that rules which are part of 'social reality is law, regardless of whether gov. enforces or not)
From this vague definition, there will be a lot of questions arising out of it. So let's explore some points of view of the 4 questions - that I thought may be interesting for you. I have hyperlinked the legal scholars to their bio. (If you have any questions or new points of view you would like to add, feel free to send in the 'Forum' page.)
🌟Who is the main focus when we are observing a law?
Authority who gave the law - Legal Positivist
voluntas principis (ruler's will is the law) - Thomas Hobbes
positive law is "commands of a political sovereign supported by sanctions who disobey it - John Austin
Courts - American Realist
Oliver Wendell Holmes Jr. (founder)
Appellate courts are the final arbiter of the law, not legislatures
Judges should recognize their inevitable duty to balance 'social advantages'
Law is actually a prediction of what courts will do
🌟What drives people to obey the law?
Internal aspects of a legal rule - a sense of obligation - Hart
Psychological Pressure - Scandinavian Realism
Fears of sanctions/punishments enforced by rulers
Legal liability, legal obligation in a moral sense, empirical (based on observation and experience rather than theory) liability, etc. - John Finnis
🌟How wide is the court's scope of power in determining law?
Judges should not be involved in legal development. Period. (this ensures that law is certain and predictable) - Bentham
Judges are merely agents of the sovereign but.... have to admit that judicial law-making is inevitable, and there is a need for jurisprudence constante (judicially established principles) - John Austin
Judges should shed their "pretense" and legislate overtly - Oliver Wendell Holmes Jr.
🌟What is the relationship between morality and law?
we need to separate law ('law as it is') from morality ('law ought to be') - legal positivist (Hart) and realist
it just doesn't make any logical sense that a norm is directly connected with a fact?!
Nonono it's not so easy to separate law from morality - Lon Fuller
External morality - law's authority rest on people's moral attitude
Internal morality - 8 qualities enactments must possess (e.g. clarity, generality, publicity, etc.)
There is a connection - through natural law (a higher norm which exists independently of human's will)
Just as its name sounds - natural law is not man-made but reflects the cosmic order of nature
Humans depend on these conditions
We can discover natural law through reasoning - Stoic
🌟Can an 'immoral' law be effective?
🚨Immoral is just something that doesn't comply with our own world views. Every person has their own values - what they regard as moral (and immoral). This difference may arise from the difference in background, education, religion, etc.
Let's take a distinct example, at the end of WWII, allies united together to decide on how to convict the Nazi officials during the Nuremberg Tribunal.
They couldn't be punished (although they should) because they are merely following orders given by higher authorities.
They can be. A moral test can be set on the laws given - law can be invalidated if injustice is beyond a rational doubt. - Radbruch
🌟What is the starting point of law?
hmmm a growing community that needs laws to keep order and set out clear rules (human reasons can lead to different conclusions!)
a diversification of moral values
e.g. in Europe: challenges against whether Popes are always correct
life becomes complex (use of weapons, tools, new innovations, vehicles, etc.)
a basic norm which all other rules are logically derived from it
In conclusion, there are loads of other questions that were explored by past and current legal scholars. Here is just a list of some questions that have been explored:
What is the definition of a sovereign? Who is sovereign?
What is a command?
Where does international law take its effect?
Is there something that exists outside of our mind? (Noumena)
What happens when two legal orders conflict with each other?
Lex posterior derogat legi priori
Lex specialise derogat leg generali (check these out)
What happens to law when a Revolution happens?
How is law a combination of mental inquiry and physical acts?
If you are interested in diving into Jurisprudence (the term for legal theory), ✅ out this book:
Jurisprudence - Law as it is
Author: Suri Ratnapala
Comments: a great book, but quite long so don't rush in a hurry to finish it. The book is really content-heavy.
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