WHAT IS LAW?
4 approaches
WHAT IS LAW?
NATURAL LAW
POSITIVISM
COMMON LAW
LEGAL REALISM
NATURAL LAW
 Aristotle
 Cicero
 St Thomas Aquinas
 Francisco Suarez
 Finnis
 Dominated Western thought until the 18th
Century
 Assertions about natural law were often
the basis of the argument for individual or
human rights and for imposing limitations
on government
 Groundwork for the principles of
international law
NATURAL LAW
Law ultimately owes its validity to God
or to a higher moral reason, so
anything which contravenes this
higher order cannot be said to be law.
Law exists independently of the
individual or collective will, and thus is
created by neither (contra common
law and positivism)
Cicero, De Re Publica
 “True law is right reason in agreement with nature; it is of
universal application, unchanging and everlasting. It summons
to duty by its commands, and averts from wrongdoing by its
prohibitions….It is a sin to try to alter this law, nor is it
allowable to repeal any part of it, and it is impossible to abolish
it entirely.We cannot be freed from its obligations by Senate or
people, and we need not look outside ourselves for an
expounder or interpreter of it. And there will not be different
laws at Rome and at Athens, or different laws now and in the
future, but one eternal and unchangeable law will be valid for
all nations and all times, and there will be one master and ruler,
that is, God, over us all, for he is the author of this law, its
promulgator, and its enforcing judge. Whoever is disobedient is
fleeing from himself and denying his human nature, and by
reason of this very fact he will suffer the worst penalties, even if
he escapes what is commonly considered punishment”
Principles of Natural Law
Natural law is unchanging over time
and does not differ in different
societies
Every person has access to the
standards of this higher law by the use
of reason;
Only just laws “really deserve the
name” law and “in the very definition of
the term ‘law’ there inheres the idea
and principle of choosing what is just
and true”
Natural Law
Natural law theory provides that
just as nature follows various
physical laws, so there are moral
norms which are observable in
the natural order.
Based on Aristotle.
Thomas Aquinas:
four types of law
1. The eternal – God’s plan for the universe
2. the natural- that part of the eternal law
which is discoverable by reason and
which is to be found in the human mind,
3. the human - the law created by humans
on the basis of natural reason, (or
positive law) and
4. the divine – that law revealed in
scripture.
The problem of “unjust laws”
Lex iniusta non est lex: an unjust law is
not a law
A just law :
– is consistent with the requirements
of natural law
– Does not exceed the authority of the
law maker
– Imposes burdens on citizens fairly.
Finnis’ basic goods
1.
2.
3.
4.
5.
6.
7.
life (and health)
knowledge
play
aesthetic experience
sociability (friendship)
practical reasonableness
religion
POSITIVISM
Jeremy Bentham
John Austin
HLA Hart
Very influential over last 200 years
and in current legal thinking; a
critique of common law and natural
law thinking
Positivism
 Is and ought or is and should are separate
questions.
 “The existence of law is one thing; its merit
or demerit is another. Whether it be or be not
is one enquiry; whether it be or be not
conformable to an assumed standard, is a
different enquiry. A law, which actually
exists, is a law, though we happen to dislike
it, or though it vary from the text, by which
we regulate our approbation and
disapprobation.” John Austin
Positivism
Legal systems are created by
(posited) by people rather than
having some natural or
metaphysical existence.
Law as a command: Austin
Features of a command:
– a wish or desire of one rational
being directed to another
– this intention is communicated
– if the command is not obeyed a
punishment of some sort will
result
Command theory
Austin: A law is a general
command made by a sovereign
Problem: how could sovereigns
– who make commands – be
subject to the rule of law.
Rejected by HLA Hart
HLA Hart
Laws exist in two groups:
– primary rules (substantive law –
eg road rules)
– Secondary rules (rules about
rules – eg constitutions,
procedural rules.)
“rule of recognition”.
COMMON LAW
 Not necessarily what we think of as
common law today, but the foundational
ideas of much of common law thought.
 Common law theory flowered in 16-18th
centuries.
 Coke
 Blackstone
 Hale
 Predominantly English
Common Law
 Law is not something made either by king,
parliament or judges, but rather is the expression of
a deeper reality which is merely discovered and
publicly declared by them. (cf Trigwell’s case)
 Precedent
 Written record, or reporting of law
 Judges declare law, they do not make law
 Individual judge is unimportant – “oracle” of
the law
 Law as artificial reason which must be learned
Blackstone
“judges…are the depositaries of the law; the living
oracles, who must decide in all cases of doubt, and who
are bound by an oath to decide according to the law of
the land. Their knowledge of that law is derived from
experience and study;…and from being long personally
accustomed to the judicial decisions of their
predecessors. And indeed these judicial decisions are
the principal and most authoritative evidence….The
judgement itself [is] carefully registered and preserved,
under the name of records, in public repositories set
apart for that particular purpose; and to them frequent
recourse is had, when any critical question arises, in the
determination of which former precedents may give light
or assistance…For it is an established rule to abide by
former precedents, where the same points come again in
litigation; as well to keep the scale of justice even and
steady, and not liable to waver with every new judge’s
opinion”
Prohibitions del Roy : Coke
“ A controversy of land between parties was heard by the King,
and sentence given, which was repealed, for this, that it did
belong to the common law: then the King said, that he thought
the law was founded upon reason, and that he and others had
reason, as well as the Judges; to which it was answered by me,
that true it was, that God had endowed his Majesty with
excellent science, and great endowments of nature; but his
Majesty was not learned in the laws of his realm of England, and
causes which concern the life, or inheritance, or goods, or
fortunes of his subjects, are not to be decided by natural law
reason, but by the artificial reason and judgement of law, which
law is an act which requires long study and experience, before
that a man can attain to the cognizance of it; and that the law
was the golden met-wand and measure to try the causes of the
subjects; and which protected his Majesty in safety and peace:
with which the King was greatly offended and said, that then he
should be under the law, which was treason to affirm, as he
said: to which I said, that Bracton saith, quod Rex non debet
esse sub homine, sed sub Deo et lege [that the King is under no
man, but under God and the law].
Common Law
Change is possible – through the
incremental development of the
common law by accumulated
decisions, but a law which has
stood the test of time is to be
preferred to one which has simply
been devised in a particular era.
Law organically connected to the
people it serves through custom
and tradition
LEGAL REALISM
 Oliver Wendell Holmes (laid groundwork)
 “The prophecies of what the courts will do in
fact, and nothing more pretentious, are
what I mean by law” (This is the question
which the bad man wants answered.)
 John Dewey (Dewey decimal system)
 Karl Llewellyn
 Jerome Frank
 20th Century
Legal Realism
 The life of the law does not exist in the application
of pre-existing rules to concrete cases, but rather in
the development through experience of legal
principles.
 The law then, is what the courts do, not what they
did two centuries ago (except insofar as it is a
guide to what they will do now), or an abstract set
of doctrines.
 For realists, law is an inherently practical activity,
which must be associated with the real world, as it
is something which has a practical effect in the
concrete world, and is not merely a body of
abstract rules and doctrines.