AS LAW

What is “Law”?
It is possible to describe law as the body of official rules and regulations, generally found
in constitutions, legislation, judicial opinions, and the like, that is used to govern a
society and to control the behaviour of its members, so Law is a formal mechanism of
social control.
Legal systems are particular ways of establishing and maintaining social order.

Definition of law - Legal Positivism

John Austin (English jurist born 1790) "Province of Jurisprudence Determined"
"A rule laid down for the guidance of an intelligent being by an intelligent being having
power over him."
"A body of rules fixed and enforced by a sovereign political authority."
Professor Hart
(Oxford Professor of jurisprudence, born 1907)"The Concept of Law" (1961)
Hart defined law as a system of rules, a union of primary and secondary rules,

Definition of law - Natural Law.

Plato (Greek philosopher born 427 BC) Aristotle (Greek philosopher born 304 BC)
“An embodiment of Reason”, whether in the individual or the community’.

Definition of law - Legal Realism

Oliver Wendell Holmes (American judge and jurist born 1841) "The Path of the Law"
in Collected Papers, 1920
"The prophecies of what the courts will do ... are what I mean by the law,"

Definition of Law -  Max Weber (German Sociologist born 1954)

"Law…exist if it is externally guaranteed by the probability of coercion (physical or
psychological) to bring about conformity or avenge violation, and is applied by a staff of
people holding themselves specially ready for that purpose."

Definition of law - Thomas Hobbes (English philosopher born 1588)

Hobbes said of the role and function of law in his polemic work ‘Leviathan’ (1651)
"Law is the formal glue that holds fundamentally disorganised societies together."

Legal Theory
Natural Law Theory
Natural law holds that law and morality are connected.  Law is not simply what is
enacted in statutes, and if legislation is not moral, then it is not law, and has no
authority.  
In order for man-made law to be valid it must accord with the higher law.
 St Thomas Aquinas, called such law (without moral content) a “perversion of law”. 
Natural law theory asserts that there is an essential connection between law and
morality. This view is frequently summarised by the maxim: “an unjust law is not a true
law”.  It follows that if it is not true law we need not obey it.
 Man made law still exists, even if Natural law holds it to be inferior
In 1534 Thomas More believed that he was bound be a higher law (God's law) to a
greater extent than the man-made law and was executed. 
Natural law theory holds that, man-made law is a lower form of law
Before the Christian philosophers, the classical Greek philosophers considered man-
made law to be inferior to the laws of nature.  
Although the laws of nature decreed that people should live in communities, the rules
people created to regulate those communities were man-made and subservient to the
laws of nature.
Cicero said,
"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. ... 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 for all
times..."
"De Republica"
Quoted in "A Short History of Western Legal Theory" by Kelly (1992))
Positivism
Positivism emphasizes the separation of law and morality. According to legal positivists,
law is man-made, or “posited,” by the legislature. Where natural law theorists may say
that if a law is not moral there is no obligation to obey it, by appealing to moral or
religious principles, but positivists hold that until a duly enacted law is changed, it
remains law, and should be obeyed.
Legal positivism regards law as a system of clearly defined rules, the law is defined by
the social rules or practices that identify certain norms as laws. Jeremy Bentham
(English philosopher and jurist born 1748) proposed the Utilitarian principle which means
that the law should create “the greatest happiness of the greatest number”.  Bentham
had little time for natural law  The version of legal positivism of his pupil, Austin was
based on the notion that the law is the command of the sovereign backed by the threat
of punishment.
Hans Kelsen (Austrian lawyer and philosopher born 1881) Kelsen's version of Legal
Positivism was that there is no necessary connection between law and morals, and that
law did not require moral validation to be legitimate.
Legal Realism
Legal realism is the view that that we should understand the law as it is practised in the
courts, law offices, and police stations, rather than as it is set forth in statutes or learned
treatises.
For legal realists such as Oliver Wendell Holmes who wrote "The Common Law" in
1923, if the law were merely a system of rules, we would not need lawyers conducting
adversarial  proceedings, because judges could just apply the rules. In fact, judges have
discretion with which they can decide a case in a number of ways, and factors such as
the judge’s temperament, or social class, or political ideology, may determine the
outcome.

What does law do?  What is its purpose?

Liberalism

John Stuart Mill (English philosopher born 1806 - On Liberty (1859) held that
liberalism, seeks to promote as much individual liberty as is compatible with everyone
else having the same liberty, the state should not use the criminal law to prevent
immoral conduct that does not cause harm or offence to others,
JS Mill’s "Harm to Others" Principle
Mill stated "The only time law can be used to prevent someone doing an act, is to
prevent harm to others". The problem is he didn't say what harm is, and he didn't say
who others were. One could ask,  “Should you use law to prevent 'harm' in all cases?” 
 Take for example adultery and suicide, both would cause 'harm' to others. However, the
law will say nothing about such behaviour.
Utilitarianism
Bentham argued that a utilitarian view of the law is that the law should produce the
best consequences. The utilitarian approach is most often seen the relation between law
and economics where the law supports the creation of wealth.
 Positivists such as Bentham and Austin see law as a system of commands backed by
sanctions.  Others such as Professor Hart stress rules and their pedigree as the
essential elements of a legal system.  Ronald Dworkin (American philosopher born
1931) disagrees, and said law involves principles as well as rules.
Sovereign commands
How does the positivist distinguish commands that count as law from commands that do
not, without appealing to morality? Austin argues that law is distinguished from other
commands by being the command of the sovereign; he wrote in “Lectures on
Jurisprudence” (1869)) that the gunman’s command lacks this pedigree.
Who then is sovereign? Not someone who has a right to rule, or who rules legitimately,
for this would interject morality into the law. Rather, it is someone who is sovereign,
who is in fact obeyed.
Professor Hart answers this by saying that it makes the legal system nothing more
than “a gunman writ large”. 
Hart adapted Kelsen's illustration of a gunman demanding money from a bank:-
The gunman commands the clerk to hand over the money. The gunman backs up this
command with the threat that if he does not do so he will be shot. The clerk feels obliged
to hand over the money.
It follows therefore that law cannot simply be made up of commands
For Hart we distinguish laws from other commands by viewing law as a union of primary
and secondary rules. Laws consist largely of primary rules.
All societies develop rules

Hart concluded that there are some essential primary rules.

In "The Concept of Law” Hart says the reason for primary rules is our knowledge of
certain self-evident truths.
Primary Rules
Such truths, says Hart, are the minimum necessary that any society will recognise.
1. We know we are all vulnerable to attack from others. Human beings are
vulnerable to bodily attack and need protection. No man alone can dominate
others for more than a short period - he must stop to sleep, and then he in his
turn needs to be protected.
2. We all have approximately equal physical and intellectual powers. Men
are not infinitely wise or strong-minded, and sanctions are needed to ensure that
those who comply voluntarily with the rules are not sacrificed to those who do
not.
3. We all have limited concern for others and limited will power. Men are
neither devils nor angels; they act largely from self-interest but generally care for
the interests of others close to them.
4. Finally, we know that we live in a world of limited resources. The basic
needs of life - food, clothes, shelter etc - are scarce and require some effort to
obtain: this requires rules to protect rights of ownership and to allow ownership
to be transferred.
 Hart appears not to include rules that limit sexual impulses or rules imposing duties on
parents to care for their children, and on younger people to care for the elderly.
Secondary rules

Just because society is governed by rules, does not mean that it has a legal system.

Some small-scale primitive societies have rules based only on informal custom.
The customs will be well known by everyone, when disputes do occur they will be
resolved by group discussion and conciliation.
Changing the rules occurs as the pace of change demands.
More developed societies will require more complex rules to deal with the economic,
social and political complexities that inevitably follow. The simple societies have a
cohesion bonded by the simple rules this is lost as societies become more complex.
  Hart describes these three types of rule as:
 Recognition. To avoid uncertainty, the complex societies develop rules of
conduct, which are recognised, particularly by the officials.
 Change.  These rules will lay down who can change the rules.
 Adjudication. Rules of adjudication, defining the procedures to resolve dispute
will be developed. This may lead to a court system
 He calls these Secondary rules to distinguish them from the primary rules.
 He says that this 'union of primary and secondary rules is at the centre of a legal
system.'
Some jurists believe the real test of whether a legal system exists is simply the
institution of a court.
Rules and principles
Another theory, called purposive adjudication, defended by Dworkin ("Law’s Empire",
1986), holds that law is not, as Hart says, merely a set of rules, but of rules as well as
underlying principles, and judges should appeal to these principles - to the spirit or
purpose of the law - not just narrowly to the letter of the law. This is different from
appealing to a natural moral order, which is entirely subjective, principles are often
objective.
Dworkin uses as an example the legal rule that the last will and testament of the
deceased should be respected is modified by the principle that no one should profit from
his or her own wrong.
Dworkin proposes a scenario of a son who murders his father, he will not benefit from
his father's will because of the legal principle that he should not profit from his own
wrong, despite the legal rule that he should inherit in line with the terms of his father's
will ("Taking Rights Seriously", 1977).
Law is a necessary evil to resolve disputes
It is certainly true that law plays a less important role in some societies than it does in
England: in China and Japan, for example, law is seen as a last resort and disputes are
resolved partly by reference to tradition and partly by a process of conciliation.
Even here, however, most scholars see law as a necessary evil: St Augustine (Algerian
Christian philosopher, born 345) said it was a natural necessity to curb man's sinful
nature.  Secular scholars also tend to agree on the need for law to respond to human
nature.
The American realists
Karl Llewellyn identified five "law jobs" 
Law in any community serves to
 Prevent disruptive conflicts within the community. Law helps maintain a
peaceful, orderly society, and contribute to this stability by providing a means of
resolving disputes.
 Resolve disputes between members of the community.  Property law
facilitates business activities, while laws limiting the powers of government help
ensure some individual freedom.
 Accommodate changes in the circumstances of the community and its
members.  Law can also be a means of accomplishing social change, as for
example in the prohibition of racial discrimination on the one hand and the
establishment of national health and social security systems on the other.
 Recognise the authority structure of the community, and
 Establish procedural rules for performing other tasks  
Oliver Wendell Holmes wrote in The Common Law (1881) that the life of the law is not
logic but experience, “The prophecies of what the courts will do in fact, and nothing
more pretentious, are what I mean by the law”;
Roscoe Pound (American jurist born 1870) named the informal practices of legal
institutions “the law-in-action,” contrasting it to “the law-in-the-books,” by which he
meant formally enacted legal doctrine.