Episode 11 - At last, they ask "What is Law?"

Any competent lawyer should be able to say what is the law on a given topic in their area of expertise.  However, most lawyers find it surprisingly difficult to answer persuasively the general question "what is law?".

In this episode we grapple with some debates that go back centuries.  We look at the positivist approach: that law is simply whatever is laid down constitutionally (ie "posited"). You might think this is self-evident.  It's also convenient, because "law" is kept neatly separate from "morality" and "politics".

However, there has been a strong body of thought around ideas of "natural law" and "natural rights" which maintains that a "law" which violates nature is not actually law.  Today, some human rights theorists take this view too.

And there are scholars in a different, critical tradition who argue that law cannot supply all its own answers.  Legal language may be vague or ambiguous, so a meaning has to come from somewhere else.  And law consists of principles as well as rules.  Applying a principle is a way of letting your own views into law.

It will not surprise any listeners that the Two Steves can't solve problems that have eluded the awesome bulging brains of legal philosophers.  But they can at least shed some light on it all.  This, on its own, adds to our understanding of law.  And, given that law permeates almost every aspect of society, it also adds to our understanding of the society we live in.

For more information about your dashing hosts and the Law in Context podcast series visit our website at About - Law in Context

Transcript

Any competent lawyer should be able to tell you what is “the” law on a topic if it’s in their area of expertise.  But most lawyers struggle to answer the general question “What is Law?”

It’s an important question because law pervades our lives. 

The English legal theorist William Twining used to ask his first year law students to open a newspaper and highlight stories that related to the law.  Today, with online and social media, the result would be the same as then: students would have difficulty deciding what to leave out. 

The law mandates, facilitates, prohibits, protects, regulates or sanctions all aspects of our lives. So, asking what makes law ‘law-like’ is one way we can understand how our society ticks.

Stephen Bottomley

If there is anyone out there who has listened to every episode, they will know we have chipped away at the question “What is Law?” 

We’ve discussed the Rule of Law. We’ve looked at where law comes from. And we have asked why people obey it. 

We’ve also had two episodes with Justice in the title; surely these must be relevant to this topic as well?

Stephen Parker

Yes, maybe. Like many complex issues, it’s helpful to make some basic distinctions.  Here we start with the difference between what philosophers call positivism and natural law.

Stephen Bottomley

Positivism comes from the verb “to posit”, or to lay down. 

So a positivist says that law is whatever comes out of the correct procedure for making law, and the correct procedure is found in a country’s constitution. 

You may not like a particular law, you may think it is unjust or immoral, but nevertheless, assuming it has been made constitutionally, it is a law until changed. And the sum total of laws is “the Law”, with a capital L.

Stephen Parker

This is attractive to many people.  It keeps things in their place.  It also keeps Law separate from questions of morality. 

Yes, you may critique laws from a moral perspective; but the law is not intrinsically moral or immoral. 

You may pass laws because of your moral beliefs, but they are still separate things. 

You may argue that some laws should not, or need not, be obeyed, because of your morality, but you don’t have to doubt their validity as laws.

Stephen Bottomley

However, many positivists wilt under a little pressure. 

Suppose a democratically elected parliament starts making retrospective laws and violates what we think of as primary requirements of the Rule of Law. 

If you start to stay that a new Act of Parliament isn’t law because it violates Rule of Law principles, you are letting a political philosophy in. You are saying that ideas such as fairness or equality are necessary parts of law.

Stephen Parker

But it’s the alternative tradition of natural law theory which takes the challenge to positivism head-on. 

In large part, natural law has religious origins, particularly in the form of natural rights.

A key figure in the history of the idea, St Augustine, in about the year 400 is said to have announced that “unjust law is not law”, which sums up that position.  It is only law if it passes some non-law test, such as religion or morality.

This contrasts with the English philosopher Jeremy Bentham, a strident positivist, who argued in 1796 that natural rights were just nonsense upon stilts.

Stephen Bottomley

These days a belief in fundamental “human rights” might have the same function,  to the extent that some say a positive law which violates them does not have the force of law; which is a natural law position. 

You don’t have to be religious, to see some merit in natural law theory. 

What the Nazis did in the 1930s and 1940s were not at the time all crimes under international law, but prosecutions after the Second World War relied on the existence of ‘crimes against humanity’ that had simply not then been recognised before in positive law.  If it was a crime even though there was no positive law, it must have come from some natural law.  

Stephen Parker

As if things aren’t complicated enough, you could say there is a third “tradition”, which we would call a critical one. 

Suppose language is always vague to some extent.  Suppose there are usually different ways of manipulating language to get to different outcomes. 

In other words, if law is “indeterminate”, as the expression goes, then the judge must be drawing on something else to make their decision. 

You might say it is their politics, or it is their morality, but it isn’t “law” because in this tradition “law” can’t supply all its own answers.

In the first half of the 20th Century, some legal scholars called themselves Legal Realists, and took this position. 

By the end of the 20th century, influenced by feminist and critical race theories, a more strident version of it emerged as Critical Legal Studies.

A more benign version is in the work of Ronald Dworkin, who pointed out that law is more than just rules.  It also contains principles which guide an answer but don’t determine it. 

A judge has to interpret and apply these principles, and in this way morality becomes a part of law and not just an external perspective.

Stephen Bottomley

And at some stage in this series we’ll have to talk about Law and Economics.  One version of this claims that law is really just efficiency in action. 

It might look like law, because of its language, but what is really going on is the search for the most efficient outcome in typical fact situations. 

Stephen Parker

Perhaps there is no universal definition “out there”.  No single essence of Law. Perhaps people understand law differently, depending on their circumstances and their experience with the legal system.  

Stephen Bottomley

And the question becomes even more complicated when different systems of law come together, for example, when we think about the laws of First Nations people, We’ll look at First Nations legal issues in future episodes.

Stephen Parker

And does it matter if we cannot reach a universal answer to our question, what is law? 

Perhaps the real point is the importance of asking the question. An interest in jurisprudence questions like this, deepens our understanding of law, and you never know when you will be drawing on that understanding. You may not even realise it when you do.

Stephen Bottomley

Oh great.  Another school of thought.  The Invisible Theory of Law.