What is the Nature of Law |
Ian ToughS211177 |
WHAT IS THE NATURE OF LAW 1
What is the nature of Law? What is the Law? Does humanity have any regard for laws?Do all societies have the same laws?
The answer to these questions, are thought to have two competing answers. The classical answer is provided by natural law theory, which is frequently characterized as asserting that there is an essential relationship between law and morality or justice. The modern answer is provided by legal positivism, which, as developed by John Austin, asserted that law is the command of ...view middle of the document...
A second view that is called "natural law theory" is a theory about "law" as an institution or practice--that is the view that is implicated in the "What is law"" controversy.
Second, contemporary understandings of "natural law theory" have been strongly influenced by the legal positivists critique. When the positivists articulated the theory they were criticizing, their articulations of natural law theory were neither charitable nor true to the natural law tradition.
For the purposes of this broad overview, we might use the term an unjust law is not a true law, as a starting point.
This formulation differs from a literal translation--an unjust law is not a law. Formulated in that way, natural law theory seems to be committed to a contradiction: something which is a” law” (but also is unjust) is not a law. The quotation marks around "law" and the phrase true law make it clear that natural law theory is asserting something else, that something which might be called a "law" is not in fact a law if it is unjust. Usually, this notion is accompanied by some explication of the characteristics that are required for status as a "true law" or perhaps "valid law."
It is difficult to know where the positivist tradition begins. Hobbes's theory of law shares some characteristics with the theories offered by Jeremy Bentham and John Austin--both of whom are clearly in the positivist tradition. Jeremy Bentham developed a very sophisticated version of legal positivism, but for a variety of reasons, the more influential and widely known view was that of Bentham's student, John Austin.
Austin's theory was that a given rule was a law if and only if the rule was the command of the sovereign to subjects of that sovereign backed by the threat of punishment. A sovereign is some person or institution who is habitually obeyed in a well-defined territory, but who or which does not habitually obey any other person or institution.
Austin's positivist theory does an excellent job of explaining the rules of criminal law, which forbid certain actions and impose punishments on those who engage in the forbidden actions. But this theory has a difficult time accounting for other aspects of law, and especially for those rules that create legal powers, such as the power to create contracts, trusts, wills, and so forth. .
These deficiencies in Austin's theory prompted H.L.A. Hart to develop a more sophisticated version of legal positivism. One feature of that theory is the distinction between primary rules (which would include criminal prohibitions) and secondary rules (which allow for the creation, alteration, and termination of primary rules). Hart replaced the notion of a sovereign with that of a rule of recognition--a social rule that specifies what counts as a law and what does not.
The contemporary approach to these issues is the product of almost sixty years of thinking within the tradition that is sometimes called "analytic jurisprudence." Beginning...