University of Transnational Business Law

The Concept of Law

by Stefano Bertea

The concept of law is among the first to have occupied legal theory and one that at some stage most legal scholars are bound to face in some form. Further, in the view of several influent legal theorists the problem of the concept of law is a question that ideally precedes all other questions of law because many legal problems have their root precisely in the nature of law.[1] Enquiry into the concept of law is not only of theoretical significance, however. Once we determine the nature of the legal phenomenon we can have an adequate approach to the question of what is law and what is not law. This determination will in turn impact directly on the way cases are decided and on the outcomes of judicial decisions. It certainly can make a practical difference how judges go about deciding cases, and even more significant in this sense are the actual decisions they make. Further, legal practitioners, as well as the public at large, will seek to have the law applied to the controversies arising from the daily affairs of society. An understanding of the concept of law is thus preliminary to any knowledge of whether and to what extent pre-existing laws can be used to settle a given legal dispute, as well as to any knowledge of whether on particular occasions judges are bound to apply previously enacted legal norms or are free to decide the dispute by filling a gap in the system. Finally, the appeal to law takes a special claim on us, since most of us consider ourselves and others to be under a general obligation to obey the law, even in the face of particular provisions that are found to be objectionable or altogether wrong. But we cannot fulfil this putative duty unless we have an understanding of what the law is. It therefore proves necessary, for legal theorists and practitioners alike, to have a grasp of the concept of law.

In legal theory, the debate on the concept of law has focused on the interrelation that holds among three elements to one another: authoritativeness, social efficacy, and material correctness.[2] These elements have been differently interpreted and weighed against one other and hence variously combined to form a number of different concepts and conceptions of law. At one extreme we find the view that all but denies the authoritative component and social efficacy of law (radical natural law theory); at the other extreme we have a pure positivist concept of law that disregards the idea of correctness as completely inessential. But most conceptions sit somewhere in the middle of this spectrum. At the risk of oversimplifying a large body of literature by compression, it may be said that the various legal conceptions, for all the significant differences of detail that intervene between them, can be grouped under four basic concepts of law: these are concepts theorised within natural law theory, legal positivism, legal realism, and interpretivism. Let us look at each of them in turn.

First, the idea of law embraced by natural law theory is based on the claim that a definition of law must incorporate the notion of material correctness. By material correctness is meant justice. It follows that the law must take in and fulfil the ideal of justice, understood to be a component of public morality. In maintaining that some standards of public morality should enter into the definition of law, natural law theorists accept the connection thesis, i.e. the claim that there is a conceptual, or necessary, connection between law and (critical) morality. They therefore articulate an “ethical” concept of law. Stated otherwise, if a norm is to be a legal norm, it will have to pass an ethical test: moral validity is a necessary condition of legal validity. Accordingly, there are conceptually necessary moral constraints on what can count as law: an unjust norm duly enacted by a putatively legal authority is not fairly characterized as law. In the words of William Blackstone, the “law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other.  It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”[3]

The naturalist (or idealist) concept of law takes its origin in classical Greek and Roman thought. But it was in the Middle Age and the modern age especially that the ideas and notions theorised by natural law thinkers served as the basis of the mainstream debate on law. The decline of natural law came with the nineteenth- and early-twentieth centuries’ codifications. A radical re-foundation of the conceptual apparatus and key notions of this approach was therefore needed that would make it possible to bring out a definition of law suitable for the contemporary age. This foundational work is owed mainly to such natural law theorists as Deryck Beyleveld, Roger Bronsword, John Finnis, Robert George, Michael Moore and Lloyd Weinreb. These scholars, each proceeding from a different set of theoretical premises, have all contributed to elucidating the fruitful part of traditional natural law theory, putting forward a sophisticated alternative to the contemporary positivist conception of law. In the result, even the theorists who criticise the naturalist concept of law now recognise that the approach based on this concept carries not only historical but also theoretical value, for it rightly conceives of the law as a normative notion, rather than an empirical one, and it importantly brings into focus the notion of “obligation” as key to legal theory.

Historically the main antagonist of natural law theory has been legal positivism, the dominant approach to legal studies in Europe for the past two centuries. Many theories of law, rather than just one, have come under this umbrella. But the differences, sometimes significant, are internal to a single, overarching theoretical perspective, and one cannot help but see that the many versions of legal positivism have some tenets in common. The positivist concept of law has developed around a cluster of ideas, the most basic of which are the social fact thesis, the conventionality thesis, and the separability thesis.[4] The social fact thesis makes out the law to be a social artefact, on the reasoning that the law’s existence depends exclusively on social facts, such as the sovereign’s capacity to “receive habitual obedience from the bulk of a given society,”[5] or gain the fact of officials’ accepting a certain kind of rules.[6] The conventionality thesis asserts that the criteria of legal validity are established by social convention among the officials of a given community. The existence of a convention, in turn, is made possible by a convergence of behaviour and attitude. Hence, law is said to exist in a given society in that, within that society, behaviours and attitudes converge. The separability thesis, in fine, affirms a conceptual distinction between law and morality; in other words, it is not necessarily true that the criteria of legal validity consist, either partly or entirely, of moral standards. This thesis grounds the positivist concept of law on only two defining elements – due enactment and social efficacy – so that any reference to moral correctness becomes a merely contingent possibility: what is law depends exclusively on what the authorities have enacted and on what is socially efficacious.[7]

While all forms of legal positivism endorse these views, and in essence see the law as a normative coercive order whose validity does not necessarily rest on moral standards, different versions of legal positivism take different stands on more specific elements. In particular, a distinction can be made between exclusive and inclusive legal positivism. Exclusive (or hard) positivism, a view theorised by Joseph Raz and defended by Andrei Marmor and Scott Shapiro, understands law as a necessarily independent of morality, in that all law is source based: law is no more inclusive than the social grounds it is based on. This position finds its justification in a specific conception of authority. Exclusive positivism regards authorities as mediating institutions that make a practical difference. Authoritative directives are then supposed to inform subjects of what they are supposed to do in such a way that they do not have to evaluate the underlying moral reasons that justify the directive. Thus, a directive that requires subjects to evaluate the underlying moral reasons, such as is true of moral rule of recognition, is not doing the job that authority is supposed to do. Hence, on this conception, we are required to identify authority on its own grounds and without relying on external (moral for example) considerations. To the extent that law is authoritative, then, we will have to regard it as independent and conceptually separate from morality. A directive can never be made legal in virtue of moral evaluations without thereby undermining the authority of law.

Inclusive (or soft) positivism, by contrast, a view advocated by Jules Coleman, Herbert Hart, Matthew Kramer, and Wil Waluchow, among others, rejects only the notion of a necessary dependence of law and morality, admitting that legality can, but does not have to, depend on morality, meaning that the criteria of validity can incorporates moral principles making the existence and content of law depend on those principles?  Or something like this. So inclusive positivists find that the connection between law and morality does hold, but only on a contingent basis, not a necessary one. This possible dependence of law on morality is due to the features of the rule of recognition, the rule used to establish the criteria of validity within a system of laws: whenever the content of this rule consists (also) of moral standards, we have a connection between law and morality. But there is nothing in the nature of law that imposes moral contents on the rule of recognition.

Like the legal positivist concept of law, the concept theorised by legal realism postulates a separation between law and morality, but it does so with an emphasis rather on social efficacy than on authoritative issuance. Here, the concept of law is framed in terms of the regularity of compliance and the use of punishment for non-compliance: law is an empirical concept relating to the possibility of coercing people (physically or psychically) to act in certain ways. By endorsing this approach and focusing on such ideas as conformism, coercion, and punishment, legal realism (especially in its pragmatic instrumentalist version) ends up theorising a predictive concept of law whereby law is nothing if not “the prophecies of what the courts will do in fact.”[8]. To put it somewhat differently, on a realist view the law is a set of propositions of probability about what the decision-making institutions are going to do. The primary concern of legal realism, then, is with predicting the content of judicial decisions. We are thereby required, on this approach, to study the actual behaviour of officials in a given legal system, and not just enacted laws (referred to as “paper rules” or “law in book”). It is only if we know the patterns of behaviour, the convictions, the more or less conscious prejudices, and the underlying evaluative conceptions of judges that we can have a grasp of the “real rules”, or “law in action”. Legal realists do not embark on a theoretical effort comparable to that of legal positivists, and so they do not theorise a structured concept of law. Yet their conception differs radically from all the other readings of the legal phenomenon in explicitly disregarding the normative component of law. The realist concept of law would therefore have to be treated separately.[9]

Interpretivism, finally, puts forward an alternative concept of law grounded on a specific thesis about the nature of legal practices. This concept has been theorised in some detail by Robert Alexy and Ronald Dworkin, and defended by Nicos Stavropoulos. On this view, the law of any given country does not emerge on the sole basis of social facts (like social conventions and political practices), as the legal positivists and realists wrongly assume, nor does it emerge on the sole basis of moral considerations, as the natural law theorists wrongly assume. The structures and contents of law depend rather on the interpretative practices that take place in a given social setting: law is an interpretive concept, an argumentative social practice that “is not exhausted by any catalogue of rules or principles, each with its own dominion over some discrete theatre of behaviour. Nor by any roster of officials and their powers each over part of our lives. Law’s empire is defined by attitude, not territory or power or process. ... It is an interpretive, self-reflective attitude addressed to politics in the broadest sense.”[10] Unlike many other social phenomena, argumentative and interpretive practices consist in a complex intermingling of facts and values. Evaluative considerations – especially in the form of a distinctive value or purpose imposed on a practice – then are inherent in the concept of law, and hence are constitutive of it. Since, on this view, the law enjoins interpretation, and interpretation is essentially evaluative, the legal domain necessarily incorporates a moral component, and the legal validity of directives always depends on moral considerations. Accordingly, describing what the law is will make it necessarily to establish what the law should be. It follows that we have to reject the separation thesis as well as the two other basic tenets to which legal positivism is committed, namely, the social facts thesis and the conventionality thesis.

For the law consists not only of a set of norms, but also of the justification of settled norms, and justification can neither be equated with social facts nor be entirely captured by conventions. Interpretivism therefore articulates a radically non-positivist concept of law, a concept that Alexy expresses so: “the law is a system of norms that (1) lays claim to correctness, (2) consists of the totality of norms that belong to a constitution by and large socially efficacious and that are not themselves unjust in the extreme, as well as the totality of norms that are issued in accordance with this constitution, norms that manifest a minimum social efficacy or prospect of social efficacy and that are not themselves unjust in the extreme, and, finally, (3) comprises the principles and other normative arguments on which the process or procedure of law application is and/or must be based in order to satisfy the claim to correctness.”[11] In summary, then, the law is to be understood as a valuable activity with a social existence.
Related entries

theories of Adjudication,  Convention, conventionalism in the law,  Ronald Dworkin,  Herbert Hart,  Kant,  Law and morality,  Legal positivism,  Natural law,  Scandinavian legal realism,  Sociological jurisprudence,  Valid law.
Essential readings

Alexy, R. 2002. The Argument from Injustice (1992). Clarendon: Oxford.

Austin, J. 1954. The Province of Jurisprudence Determined. Weidenfeld and Nicolson: London.

Beyleveld, D. – R. Brownsword. 1986. Law as a Moral Judgement. Sweet and Maxwell: London.

Coleman, J. 1982. “Negative and Positive Positivism”. The Journal of Legal Studies 11, 139-164.

Dworkin, R. 1986. Law’s Empire. Harvard University Press: Cambridge (Mass.).

Finnis, J. 1980. Natural Law and Natural Rights. Clarendon: Oxford.

George, R. (ed.). 1992. Natural Law Theory: Contemporary Essays. Clarendon: Oxford.

George, R. (ed.). 1996. The Autonomy of Law. Essays on Legal Positivism. Clarendon: Oxford.

Hart, H. 1994. The Concept of Law, 2nd ed. Clarendon: Oxford.

Himma, K. 2002. “Inclusive Legal Positivism”. In The Oxford Handbook of Jurisprudence and Philosophy of Law. Edited by J. Coleman and S. Shapiro, 125-165.

Holmes, O.W. 1896. “The Path of the Law”. Harvard Law Review 10, 457-478.

Kelsen, H. 1967. Pure Theory of Law. University of California Press: Berkeley.

Marmor, A. 2002. “Exclusive Legal Positivism”. In The Oxford Handbook of Jurisprudence and Philosophy of Law. Edited by J. Coleman and S. Shapiro, 104-124.

Raz, J. 1980. The Concept of a Legal System, 2nd ed. Clarendon: Oxford.

Raz, J. 1985. “Authority, Law and Morality”. The Monist 68, 295-324.

Waluchow, W. 1994. Inclusive Legal Positivism. Clarendon: Oxford.
Footnotes

[1] For a contrary view, see R. Posner, Law and Legal Theory, Oxford, Clarendon, 1996, p. 3.

[2] See R. Alexy, The Argument from Injustice (1992), Oxford, Clarendon, 2002, p. 13.

[3] W. Blackstone, Commentaries on the Laws of England (1765-1769), vol. I, Chicago, Chicago University Press, 1979, p. 41.

[4] Cfr. K. Himma, “Inclusive Legal Positivism”, in The Oxford Handbook of Jurisprudence and Philosophy of Law, J. Coleman and S. Shapiro (eds.), Oxford, Oxford University Press, 2002, p. 125-126.

[5] J. Austin, The Province of Jurisprudence Determined, London, Weidenfeld and Nicolson, 1954, p. 221.

[6] See H. Hart, The Concept of Law 2nd ed., Oxford, Clarendon, 1994, pp. 82-91.

[7] On this aspect, see H. Kelsen, Pure Theory of Law, Berkeley, University of California Press, 1967, pp. 44-50.

[8] O. W. Holmes, “The Path of the Law”, Harvard Law Review 10, 1896, pp. 461.

[9] The interpretation of legal realism I present here is not the only possible. On some legal theorists’ view, legal realism largely consists of empirically descriptive claims about law; what conceptual claims it makes are positivistic in character. For such a view, see B. Leiter, “Legal Realism”, in Blackwell Companion to Philosophy of Law and Legal Theory, D. Patterson (ed.), Oxford, Blackwell, 1996, 261-279.

[10] R. Dworkin, Law’s Empire, Harvard University Press, Cambridge (Mass.), 1986, p. 413.

[11] R. Alexy, The Argument from Injustice (1992), Oxford, Clarendon, 2002, p. 127.