WHAT IS LAW?

Updated: Aug 4

We asked a first year law student on the LLB Law Degree the following question: "What is law? In what way, has your answer changed since you began you started a law course or started studying law at University? If your answer has changed, why is that?" We asked the law student to put their response in writing:


INTRODUCTION


This answer starts by defining and characterising law, and then explains how embarking on a law degree, has changed my answer to what is law. To fulfil the requirements of this question I have drawn reference to materials and literature studied on my law course. To further justify my own ideas in regards to the question I have linked them to various schools of thought.


WHAT IS LAW?


Law is a control enforced by a rule or a set of rules or instructions that prescribe an action often dictated by parliament.[1] When we talk about the law in the context of a nation state, a number of suggestions begin to surface. Laws are the product of human decisions, not the gift of an all-perfect deity. Law of a nation state is a assemblage of obligatory rules of conduct, for example Section 4(b) Misuse of Drugs Act,[2] this is a rule, which indicates it is an offence to supply, or offer to supply drugs to another. Rules of a nation are restraining in character, they provide what is unlawful, and describe what type of behaviour will be intolerable within society; they can be described as parameters for expected social norms.


SOCIAL CONTRACT THEORY


The justification of rules are noted to have been instigated through individuals seeking to escape from an unconstraint state of nature, which Hobbes has described as ‘solitary, poor, nasty, brutish, and short’.[3] By entering into ‘social contracts’ with one another, individuals recognise that only a sovereign power can secure order and stability. The ‘social contract’ obliges citizens to respect and obey rules of the state, ultimately in gratitude for the dependability and security that only a system of political rule can deliver.


COMMON LAW


Originally, I understood law as rules legislated by parliament as the ultimate authority governing the nation. I was aware courts then interpreted these legislated rules and further referred to previous determined judgments of higher courts cases to come to a decision, thus if someone were found in violation of a law, then a sanction would be imposed. Various schools of thought differ in opinion to what the characteristics of law may be. Each school bring with it, its own magnitude of descriptive ideas, which has provided me with a better understandings to what law is.


THEORIES OF LAW


My perception of law was in line with a positivist’s analysis; this is evident through the ideas of classical positivists such as Jeremy Bentham and John Austin. Bentham’s command theory incorporates the use of a ‘command’ better defined by Austin as ‘A wish …by a rational being’, [4] within this theory a command is only given legitimacy through the fact of sovereign power of the imposer; this command is then combined with an element of force (enforcement). The attachment of sanctions in law is a distinct aspect of the positivist ideology, Hart’s words demonstrate that ‘certain kinds of human conduct are no longer optional, but in some sense obligatory’.[5] Hart’s critique of the ‘command model’ took the shape a complete explanation of positive law in operation and employed the use of statute, case decisions, and customary law. These familiarised rules of a regulatory structure, as a system was the view I held law to be before embarking on my study, for the reason that, it best described the aspects attributed in our present system.


NATURAL LAW


Absence of moralistic and naturalistic values in a positivist theory poses the question of whether or not such values are feasible in a scientific and systematic description of law.[6] The value of incorporating natural values into my definition of law appeared to me, through case discrepancies, which demanding moral application. Seminar discussion and reading on the course in L.L. Fuller’s The case of the Speluncean Explorers (1949)[7] and the case of R v. Dudley and Stevens (1884)[8] provided a provocative backdrop to the natural law argument. If people are in a state of nature, outside of a sovereign’s jurisdictions can they dismiss laws of a nation state and their social contract obligations? This poses a further valuable question of whether justice is attainable through a single philosophy.


DISOBEY A LAW


Naturalist arguments questions inter alia [9]the limits of the right of government to make laws and the nature and limitations of the obligation to obey law,[10] Recognisable through the naturalist declaration of ‘lex iniusta non est lex- an unjust law is no law at all.’[11] This raises the political question about when people are entitled to disobey positive law. Further beliefs in natural law, is there must subsist some moral codes of principles, which exists irrespective of positive law.


CIVIL AND CRIMINAL LAW


The perception I held, observed the divisions of law in our legal system. I was able to distinguish a criminal offence, in that prosecutions for a criminal offence are brought on behalf of a victim, by the crown, in effect no payment is required to bring a case to court and it compensates a victim and brings public condemnation on the offender. A civil offence can be brought by individuals on one and other for example cases of defamation and slander, under the Defamation Act [12] However, the remedy of civil courts is only accessible to the powerful, people with monetary means. This is the most significant thing I have seen is that law is a tool for the already wealthy in some instances. Law needs to be accessible to all and we cannot say that all of law is accessible.


MARXIST AND CRITICAL LEGAL STUDIES THEORY


My point of how law is a tool for the wealthy coincides to some respect with Marxist analysis and Critical legal studies theory. In that, law is a tool for class domination. Engel’s words exemplifies this ‘…law is sacred to the bourgeois, for it is…enacted…for his benefit…the policeman’s truncheon …has for him a …soothing power.’[13] Proponents of Critical legal studies theory believe that the law exists to support the interests of the party or class that forms it and law is merely a collection of beliefs and prejudices that legitimises the injustices of society. The wealthy and the powerful use the law as an instrument for oppression in order to maintain their place in hierarchy. The basic idea is that the law is politics and it is not neutral.[14] An important question arises from these two theories, is the stability and welfare of society only valued by those who have accumulated wealth? Does law have a collective purpose?


PATRIARCHAL POWER


In suggesting a system of collective law would use constraints to achieve expected social norms, this can be advanced by suggesting it can be employed as a instrument for social engineering; law if moulded, could suit current and future needs of society. Karl Llewellyn, (American Legal realist) insists that judicial law making is the only means of matching law to the rapidity of social change. However intrusting legislative power in the judiciary is undemocratic and feminist jurisprudents would argue their law making power could be regarded a deviation from unbiased representation, due to their belief the language, logic, and structure of the law are male created and reinforce male values. By presenting male's characteristics as a ‘norm’ and females characteristics as deviation from the ‘norm’, the prevailing conceptions of law reinforce and perpetuate patriarchal power.[15]


ANSWER TO YOUR QUESTION


Before embarking on my reading of law at university, my perception of law was superficial and experienced through legal proceedings brought against myself by the crown. I believed law amounted to rules and would have put more emphasis in describing its enforceability to condition the behaviour of young people like myself, through examples of imprisonment, rehabilitation, community service, or a fine.


After examining all different schools of thought, adamantly still I maintain a positivist view, for the reason, law to me has been seen through a practitioner ‘s eyes having respect for the system at hand and the way in which it serves its purpose. My answer to the question of what is law has not radically changed from what I have read at university or on my law course. However further reading into jurisprudence has encouraged, that moral, ethical, natural, or formalist analysis all portray a comprehensive depiction; they all donate to the totality of what is law.


I have recently come to learn of the greater necessity of laws in everyday life; law is a product of society. However life in society is not equal and the suffrage or obstacles one faces determines and moulds one’s values accordingly, these in effect contribute to the particular philosophy one espouses, this then dictates the way one perceives a legal issue and appreciates its consequence.


FOOTNOTES

[1] Ivamy, Hardy E.R. Law Dictionary, 11th edn., 1993, London: Butterworths, p. 153 [2] Carknell, D.G. Cracknell’s Statutes Criminal Law, 2nd edn., 1996, Kent: Old Baily Press Ltd, p. 153 [3] Hobbes, Thomas. cited in Stychin, Carl F. Legal Method text and materials, 1999, London: Sweet & Maxwell, p.2 [4] Austin, J. The Province of Jurisprudence Determined (London: Weidenfeld & Nicolson, 1955), p.17 cited in McCoubrey, Hilaire & White, Nigel D. Textbook on Jurisprudence, 1999, p.15 [5] Hart, H.L.A. The Concept of Law, (Oxford: Clarendon Press, ch. 1, para. 1.) in Ibid, p. 21 [6]Ibid. p.25 [7] LX1026B Seminar reading, Syllabus & study pack, p.15 [8] (1884) 14 QBD 273 [9] Amongst other things. [10] McCoubrey, Hilaire & White, Nigel D. Textbook on Jurisprudence, 1999, p. 60 [11] Cotterrell, Roger. The Politics of Jurisprudence (Butterworths, London, 1989), p. 120 cited in Stychin, Carl F. Legal Method text and materials, 3rd edn., 1999, London: Blackstone Press Limited, p.7 [12] Defamation Act 2013 [13] Engels, F. ‘The condition of the working class in England’ [1842], cited in Marx, Karl and Engels, F. Collected works (London: Lawrence and Wishart, 1975), p. 514) in McCoubrey, Hilaire & White, Nigel D. Textbook on Jurisprudence, 3rd edn., 1999, London: Blackstone Press Limited, p. 124. [14] McCoubrey, Hilaire & White, Nigel D. Textbook on Jurisprudence, 3rd edn., 1999, London: Blackstone Press Limited, p. 226 [15]Ibid. p. 242-242

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