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![Justice-2060093_1920](https://upload.wikimedia.org/wikipedia/commons/9/96/Justice-2060093_1920.jpg)
Law is a set of rules that are created and are
enforceable
An unenforceable contract or transaction is one that is valid but one the court will not enforce. Unenforceable is usually used in contradiction to void (or ''void ab initio'') and voidable. If the parties perform the agreement, it will be valid ...
by social or governmental institutions to regulate behavior,
[Robertson, ''Crimes against humanity'', 90.] with its precise definition a matter of longstanding debate.
It has been variously described as a
science
Science is a systematic endeavor that Scientific method, builds and organizes knowledge in the form of Testability, testable explanations and predictions about the universe.
Science may be as old as the human species, and some of the earli ...
and as the art of justice.
State-enforced laws can be made by a group
legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
or by a single legislator, resulting in
statutes; by the executive through
decree
A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used ...
s and
regulation
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. Fo ...
s; or established by judges through
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, usually in
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
jurisdictions. Private individuals may create legally binding
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
s, including arbitration agreements that adopt
alternative ways of resolving disputes to standard court litigation. The creation of laws themselves may be influenced by a
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
, written or tacit, and the
rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical theory ...
encoded therein. The law shapes
politics
Politics (from , ) is the set of activities that are associated with making decisions in groups, or other forms of power relations among individuals, such as the distribution of resources or status. The branch of social science that stud ...
,
economics
Economics () is the social science that studies the production, distribution, and consumption of goods and services.
Economics focuses on the behaviour and interactions of economic agents and how economies work. Microeconomics analyzes ...
,
history
History (derived ) is the systematic study and the documentation of the human activity. The time period of event before the invention of writing systems is considered prehistory. "History" is an umbrella term comprising past events as well ...
and
society
A society is a group of individuals involved in persistent social interaction, or a large social group sharing the same spatial or social territory, typically subject to the same political authority and dominant cultural expectations. Soci ...
in various ways and serves as a mediator of relations between people.
Legal systems vary between
jurisdictions, with their differences analysed in
comparative law
Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the ...
. In
civil law jurisdictions, a legislature or other central body
codifies and consolidates the law. In
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
systems, judges may make
binding case law through
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
, although on occasion this may be overturned by a higher court or the legislature. Historically,
religious law
Religious law includes ethical
Ethics or moral philosophy is a branch of philosophy that "involves systematizing, defending, and recommending concepts of right and wrong behavior".''Internet Encyclopedia of Philosophy'' The field of ethics, ...
has influenced secular matters and is, as of the 21st century, still in use in some religious communities.
Sharia law based on
Islamic principles is used as the primary legal system in several countries, including
Iran
Iran, officially the Islamic Republic of Iran, and also called Persia, is a country located in Western Asia. It is bordered by Iraq and Turkey to the west, by Azerbaijan and Armenia to the northwest, by the Caspian Sea and Turkmeni ...
and
Saudi Arabia
Saudi Arabia, officially the Kingdom of Saudi Arabia (KSA), is a country in Western Asia. It covers the bulk of the Arabian Peninsula, and has a land area of about , making it the fifth-largest country in Asia, the second-largest in the A ...
.
The scope of law can be divided into two domains.
Public law concerns government and society, including
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in fe ...
,
administrative law
Administrative law is the division of law that governs the activities of executive branch agencies of government. Administrative law concerns executive branch rule making (executive branch rules are generally referred to as "regulations"), ad ...
, and
criminal law.
Private law deals with legal disputes between individuals and/or organisations in areas such as
contracts,
property
Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
,
torts
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishabl ...
/
delicts
Delict (from Latin ''dēlictum'', past participle of ''dēlinquere'' ‘to be at fault, offend’) is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of ...
and
commercial law.
This distinction is stronger in
civil law countries, particularly those with a separate system of
administrative courts
Administration may refer to:
Management of organizations
* Management, the act of directing people towards accomplishing a goal
** Administrative Assistant, traditionally known as a Secretary, or also known as an administrative officer, administ ...
;
by contrast, the public-private law divide is less pronounced in
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
jurisdictions.
Law provides a source of scholarly inquiry into
legal history
Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations and operates in the wider context of social history. Certain jurists and histo ...
,
philosophy,
economic analysis
Economics () is the social science that studies the production, distribution, and consumption of goods and services.
Economics focuses on the behaviour and interactions of economic agents and how economies work. Microeconomics analyz ...
and
sociology
Sociology is a social science that focuses on society, human social behavior, patterns of social relationships, social interaction, and aspects of culture associated with everyday life. It uses various methods of empirical investigation an ...
.
Law also raises important and complex issues concerning equality, fairness, and
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
.
Philosophy of law
The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what is law?"
Analytical jurisprudence
There have been several attempts to produce "a universally acceptable definition of law". In 1972,
Baron Hampstead suggested that no such definition could be produced.
Dennis Lloyd, Baron Lloyd of Hampstead
Dennis Lloyd, Baron Lloyd of Hampstead, QC (22 October 1915 – 31 December 1992) was a British jurist, and was created a life peer on 14 May 1965 as Baron Lloyd of Hampstead, ''of Hampstead in the London Borough of Camden''.
He was appointed Q ...
. ''Introduction to Jurisprudence''. Third Edition. Stevens & Sons. London. 1972. Second Impression. 1975. p. 39. McCoubrey and White said that the question "what is law?" has no simple answer.
Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, "
early customary law" and "
municipal law
Municipal law is the national, domestic, or internal law of a sovereign state and is defined in opposition to international law. Municipal law includes many levels of law: not only national law but also state, provincial, territorial, regional, ...
" were contexts where the word "law" had two different and irreconcilable meanings.
Thurman Arnold
Thurman Wesley Arnold (June 2, 1891 – November 7, 1969) was an American lawyer best known for his trust-busting campaign as Assistant Attorney General in charge of the Antitrust Division in President Franklin D. Roosevelt's Department of Justic ...
said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned. It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to
cases").
One definition is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour.
In ''
The Concept of Law
''The Concept of Law'' is a 1961 book by the legal philosopher H. L. A. Hart and his most famous work. ''The Concept of Law'' presents Hart's theory of legal positivism—the view that laws are rules made by humans and that there is ...
,''
H.L.A Hart argued that law is a "system of rules";
John Austin John Austin may refer to:
Arts and entertainment
* John P. Austin (1906–1997), American set decorator
* Johnny Austin (1910–1983), American musician
* John Austin (author) (fl. 1940s), British novelist
Military
* John Austin (soldier) (180 ...
said law was "the command of a sovereign, backed by the threat of a sanction";
Ronald Dworkin describes law as an "interpretive concept" to achieve
justice
Justice, in its broadest sense, is the principle that people receive that which they deserve, with the interpretation of what then constitutes "deserving" being impacted upon by numerous fields, with many differing viewpoints and perspective ...
in his text titled ''
Law's Empire
''Law's Empire'' is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book introduces Dwork ...
'';
[Law's Empire
''Law's Empire'' is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book introduces Dwork ...]
, 410">Dworkin, ''
Law's Empire
''Law's Empire'' is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book introduces Dwork ...
'', 410 and
Joseph Raz
Joseph Raz (; he, יוסף רז; born Zaltsman; 21 March 19392 May 2022) was an Israeli legal, moral and political philosopher. He was an advocate of legal positivism and is known for his conception of perfectionist liberalism. Raz spent mos ...
argues law is an "authority" to mediate people's interests.
Oliver Wendell Holmes said, "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." In his ''
Treatise on Law,''
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wit ...
argues that law is a rational ordering of things which concern the common good that is promulgated by whoever is charged with the care of the community. This definition has both
positivist and
naturalist elements.
Connection to morality and justice
![Laki-patsas](https://upload.wikimedia.org/wikipedia/commons/e/e2/Laki-patsas.jpg)
Definitions of law often raise the question of the extent to which law incorporates morality.
John Austin John Austin may refer to:
Arts and entertainment
* John P. Austin (1906–1997), American set decorator
* Johnny Austin (1910–1983), American musician
* John Austin (author) (fl. 1940s), British novelist
Military
* John Austin (soldier) (180 ...
's
utilitarian
In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for all affected individuals.
Although different varieties of utilitarianism admit different charac ...
answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience".
[Bix]
John Austin
Natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
yers on the other side, such as
Jean-Jacques Rousseau
Jean-Jacques Rousseau (, ; 28 June 1712 – 2 July 1778) was a Genevan philosopher, writer, and composer. His political philosophy influenced the progress of the Age of Enlightenment throughout Europe, as well as aspects of the French Revolu ...
, argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient
Greek philosophy
Ancient Greek philosophy arose in the 6th century BC, marking the end of the Greek Dark Ages. Greek philosophy continued throughout the Hellenistic period and the period in which Greece and most Greek-inhabited lands were part of the Roman Empi ...
concurrently and in connection with the notion of justice, and re-entered the mainstream of
Western culture
Leonardo da Vinci's ''Vitruvian Man''. Based on the correlations of ideal Body proportions">human proportions with geometry described by the ancient Roman architect Vitruvius in Book III of his treatise ''De architectura''.
image:Plato Pio-Cle ...
through the writings of
Thomas Aquinas
Thomas Aquinas, OP (; it, Tommaso d'Aquino, lit=Thomas of Aquino; 1225 – 7 March 1274) was an Italian Dominican friar and priest who was an influential philosopher, theologian and jurist in the tradition of scholasticism; he is known wit ...
, notably his ''
Treatise on Law''.
When having completed the first two parts of his book ''
Splendeurs et misères des courtisanes
''Splendeurs et misères des courtisanes'', translated variously as ''The Splendors and Miseries of Courtesans'', ''A Harlot High and Low'', or as ''Lost Souls'', is an 1838-1847 novel by French novelist Honoré de Balzac, published in four initia ...
'', which he intended to be the end of the entire work,
Honoré de Balzac
Honoré de Balzac ( , more commonly , ; born Honoré Balzac;Jean-Louis Dega, La vie prodigieuse de Bernard-François Balssa, père d'Honoré de Balzac : Aux sources historiques de La Comédie humaine, Rodez, Subervie, 1998, 665 p. 20 May 179 ...
visited the
Conciergerie
The Conciergerie () ( en, Lodge) is a former courthouse and prison in Paris, France, located on the west of the Île de la Cité, below the Palais de Justice. It was originally part of the former royal palace, the Palais de la Cité, which als ...
. Thereafter, he decided to add a third part, finally named ''Où mènent les mauvais chemins'' (''The Ends of Evil Ways''), entirely dedicated to describing the conditions in prison.
[.] In this third part, he states:
Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.
Immanuel Kant
Immanuel Kant (, , ; 22 April 1724 – 12 February 1804) was a German philosopher and one of the central Enlightenment thinkers. Born in Königsberg, Kant's comprehensive and systematic works in epistemology, metaphysics, ethics, and ...
believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".
Jeremy Bentham
Jeremy Bentham (; 15 February 1748 Old_Style_and_New_Style_dates">O.S._4_February_1747.html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747">Old_Style_and_New_Style_dates.htm ...
and his student Austin, following
David Hume
David Hume (; born David Home; 7 May 1711 NS (26 April 1711 OS) – 25 August 1776) Cranston, Maurice, and Thomas Edmund Jessop. 2020 999br>David Hume" ''Encyclopædia Britannica''. Retrieved 18 May 2020. was a Scottish Enlightenment phil ...
, believed that this conflated the
"is" and what "ought to be" problem. Bentham and Austin argued for law's
positivism; that real law is entirely separate from "morality". Kant was also criticised by
Friedrich Nietzsche
Friedrich Wilhelm Nietzsche (; or ; 15 October 1844 – 25 August 1900) was a German philosopher, prose poet, cultural critic, philologist, and composer whose work has exerted a profound influence on contemporary philosophy. He began his ...
, who rejected the principle of equality, and believed that law emanates from the
will to power
The will to power (german: der Wille zur Macht) is a concept in the philosophy of Friedrich Nietzsche. The will to power describes what Nietzsche may have believed to be the main driving force in humans. However, the concept was never systemati ...
, and cannot be labeled as "moral" or "immoral".
In 1934, the Austrian philosopher
Hans Kelsen
Hans Kelsen (; ; October 11, 1881 – April 19, 1973) was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise ...
continued the positivist tradition in his book the ''
Pure Theory of Law''. Kelsen believed that although law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway ''is'' €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a basic norm (''
Grundnorm
Basic norm (german: Grundnorm) is a concept in the '' Pure Theory of Law'' created by Hans Kelsen, a jurist and legal philosopher. Kelsen used this word to denote the basic norm, order, or rule that forms an underlying basis for a legal system. ...
'') instructing us to obey. Kelsen's major opponent,
Carl Schmitt
Carl Schmitt (; 11 July 1888 – 7 April 1985) was a German jurist, political theorist, and prominent member of the Nazi Party. Schmitt wrote extensively about the effective wielding of political power. A conservative theorist, he is noted as ...
, rejected both positivism and the idea of the
rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. Therefore, Schmitt advocated a jurisprudence of the exception (
state of emergency), which denied that legal norms could encompass all of the political experience.
[Finn, ''Constitutions in Crisis'', 170–171]
![Jeremy Bentham by Henry William Pickersgill detail](https://upload.wikimedia.org/wikipedia/commons/c/c8/Jeremy_Bentham_by_Henry_William_Pickersgill_detail.jpg)
Later in the 20th century,
H. L. A. Hart
Herbert Lionel Adolphus Hart (18 July 190719 December 1992), known simply as H. L. A. Hart, was an English legal philosopher. He was Professor of Jurisprudence (University of Oxford), Professor of Jurisprudence at Oxford University an ...
attacked Austin for his simplifications and Kelsen for his fictions in ''
The Concept of Law
''The Concept of Law'' is a 1961 book by the legal philosopher H. L. A. Hart and his most famous work. ''The Concept of Law'' presents Hart's theory of legal positivism—the view that laws are rules made by humans and that there is ...
''. Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book ''
Law's Empire
''Law's Empire'' is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book introduces Dwork ...
'',
Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "
interpretive __NOTOC__
An interpretive discussion is a discussion in which participants explore and/or resolve interpretations often pertaining to text (literary theory), texts of any medium containing significant ambiguity in meaning.
Education
Interpretiv ...
concept",
[Law's Empire
''Law's Empire'' is a 1986 text in legal philosophy by Ronald Dworkin, in which the author continues his criticism of the philosophy of legal positivism as promoted by H.L.A. Hart during the middle to late 20th century. The book introduces Dwork ...]
, 410" /> that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions.