Notes on the Concept of Law from The Oxford International Encyclopedia of Legal History
Publisher Information
Publisher: Oxford University Press
Print Publication Date: 2009
Print ISBN-13: 9780195134056
Published Online: 2009
Current Online Version: 2009
eISBN: 9780195336511
Title: The Oxford International Encyclopedia of Legal History
Editor: Stanley N. Katz
Subject Area: Oxford Reference Law
Introduction to Law
Fundamental Question: "What is law?"
This question has perplexed and intrigued theorists over generations.
Notably addressed in the Platonic dialogue Minos, where Socrates asks, "I ask you, what is law?"
Despite ongoing discourse, there remains no unified definition or conceptualization of law.
Historical Perspectives on Law
Major Philosophers' Conceptions of Law up to the Nineteenth Century:
Plato: Law as a form of social control, an instrument of the good life, and a path to discovering reality.
Aristotle: Law is a rule of conduct, contract, ideal of reason, rule of decision, and form of order.
Cicero: Law as the agreement of reason and nature; distinction between just and unjust; a command or prohibition.
Aquinas: Law as an ordinance of reason for the common good made by the caretaker of the community and proclaimed.
Bacon: Emphasized that certainty is a prime necessity of law.
Hobbes: Defined law as the command of the sovereign.
Spinoza: Viewed law as a plan of life.
Leibniz: The character of law determined by the structure of society.
Locke: Law as a norm established by the commonwealth.
Hume: Identified law as a body of precepts.
Kant: Law harmonizes wills through universal rules in the interests of freedom.
Fichte: Defined law as a relationship among humans.
Hegel: Viewed law as an unfolding or realization of the idea of right.
Twentieth Century Contributions:
Max Weber: Law involves enforcement capacity and coercion.
Bronislaw Malinowski: Law is binding rules governing social life.
Eugene Ehrlich: Identified spontaneously generated rules of conduct.
Roscoe Pound: Saw law as social control in organized societies.
Paul Bohannan: Viewed law as customs reinstituted for enforcement.
Donald Black: Defined law as government social control.
Lon Fuller: Proposed law as governance of human conduct by rules.
H.L.A. Hart: Distinguished between primary rules governing social conduct and secondary rules followed by legal officials.
Niklas Luhmann: Defined law as an aspect of a social system that establishes behavioral expectations.
Challenges in Defining Law
Theories often contradict each other, leading to a persistent impasse in defining law:
Although law is widely seen as fundamental to society, theorists differ significantly in their definitions.
Sources of the Impasse:
Difficulty in definition arises from the need to first understand what law actually encompasses.
Theorists typically take existing models of law as their basis for redefinition, resulting in diverse interpretations.
Concepts like John Austin's definition of law as the command of the sovereign and Hart's discussion of primary and secondary rules are rooted in state law context.
Positivist theorists prioritize state law as the archetype of law, leading to conflicting perspectives when theorists argue non-state based concepts.
Jurisprudential Traditions & Schools of Thought
Theoretical disagreements stem from different jurisprudential traditions and schools of thought:
Analytical Jurisprudence
Historical Jurisprudence
Natural Law
Social Scientific Theories: Interpretivists, functionalists, structuralists, Marxists, etc.
Variances in theorist backgrounds and objectives further compound misunderstandings.
Historical Context Influencing Law Definition
Various historical circumstances have shaped debates over law:
International Law Reactions: Mid-twentieth-century opposition to Austin's positivism due to lacks in international jurisdiction.
Alternative Views During Colonization: The view that societies without state law were uncivilized led to justifications for colonialism.
Recognition of Customary Law: Postcolonial regimes acknowledged indigenous customs as valid forms of law.
Three Main Categories of Law Conceptions
Law as Social Order:
Law is essential for social order; theorists hold this belief may lead to concepts identifying law with the maintenance of order.
Custom was dominant during the medieval period, with ideas from Savigny influencing modern views.
State-Law-Based Category:
Traditions asserting law exists based on the state's imposition, emphasizing institutional functions, coercive enforcement, and territory.
Critics note this perspective misrepresents law as distinct from custom and morality.
Justice-or-Right Category:
Advances state-based models while arguing law must include a component of justice—conceiving law without justice is fundamentally coercive and anti-ethical.
Variants include natural law theorists advocating for universal justice or divine order.
Disagreement in Legal Conception
Opposition among scholars rests on various grounds:
Not all legal systems are just; precluding such systems from the law categorization leads to problematic discussions.
For theories of justice, standard measures remain elusive, complicating legal theorization.
Modern Conceptions
Areas of focus have shifted:
Law is no longer seen solely as social order but regarded as a multifaceted tool:
Creating government structures.
Pursuing social and individual objectives.
Contemporary law encompasses a broader set of legal forms (international, customary, religious) that reflect the complexities of modern society.
Conclusion
Ultimately, the inquiry surrounding what constitutes law engenders ongoing debate due to divergent intuitions about law’s essence.
Shifting the focus to multiple concepts may better reflect the complexity of contemporary legal realities.