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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 deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereign state, country or city. They are often contrasted with the Executive (government), executive and Judiciary, ...
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 f ...
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
Biology is the scientific study of life. It is a natural science with a ...
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 v ...
, 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 omniprese ...
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 ...
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 princip ...
, 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 th ...
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 analy ...
,
history
History (derived ) is the systematic study and the documentation of the human activity. The time period of event before the History of writing#Inventions of writing, invention of writing systems is considered prehistory. "History" is an umbr ...
and
society
A society is a Social group, group of individuals involved in persistent Social relation, social interaction, or a large social group sharing the same spatial or social territory, typically subject to the same Politics, political authority an ...
in various ways and serves as a mediator of relations between people.
Legal systems vary between
jurisdictions
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Juri ...
, 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 t ...
. In
civil law
Civil law may refer to:
* Civil law (common law), the part of law that concerns private citizens and legal persons
* Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law
** Private la ...
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 omniprese ...
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 v ...
, although on occasion this may be overturned by a higher court or the legislature. Historically,
religious law
Religious law includes ethical and moral codes taught by religious traditions. Different religious systems hold sacred law in a greater or lesser degree of importance to their belief systems, with some being explicitly antinomian whereas other ...
has influenced secular matters and is, as of the 21st century, still in use in some religious communities.
Sharia law
Sharia (; ar, شريعة, sharīʿa ) is a body of religious law that forms a part of the Islamic tradition. It is derived from the religious precepts of Islam and is based on the sacred scriptures of Islam, particularly the Quran and the ...
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 Turkm ...
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 List of Asian countries by area, fifth-largest country in Asia ...
.
The scope of law can be divided into two domains.
Public law
Public law is the part of law that governs relations between legal persons and a government, between different institutions within a State (polity), state, between Separation of powers, different branches of governments, as well as relationship ...
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 fed ...
,
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"), ...
, and
criminal law.
Private law deals with legal disputes between individuals and/or organisations in areas such as
contracts
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 ...
,
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
Commercial law, also known as mercantile law or trade law, is the body of law that applies to the rights, relations, and conduct of persons and business engaged in commerce, merchandising, trade, and sales. It is often considered to be a bra ...
.
This distinction is stronger in
civil law
Civil law may refer to:
* Civil law (common law), the part of law that concerns private citizens and legal persons
* Civil law (legal system), or continental law, a legal system originating in continental Europe and based on Roman law
** Private la ...
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, adminis ...
;
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 omniprese ...
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 Sociocultural evolution, 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. C ...
,
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 analyze ...
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 and ...
.
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 ...
. ''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
Glanville Llewelyn Williams (15 February 1911 – 10 April 1997) was a Welsh legal scholar who was the Rouse Ball Professor of English Law at the University of Cambridge from 1968 to 1978 and the Quain Professor of Jurisprudence at University ...
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
A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudina ...
" 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 Ju ...
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) (1801 ...
said law was "the command of a sovereign, backed by the threat of a sanction";
Ronald Dworkin
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Y ...
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 m ...
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
''Treatise on Law'' is Thomas Aquinas' major work of legal philosophy. It forms questions 90–108 of the ''Prima Secundæ'' ("First artof the Second art) of the ''Summa Theologiæ'', Aquinas' masterwork of Scholastic philosophical theology. ...
,''
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 wi ...
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) (1801 ...
'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 charact ...
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 enacted ...
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 Revol ...
, 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
image:Da Vinci Vitruve Luc Viatour.jpg, 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 '' ...
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 wi ...
, notably his ''
Treatise on Law
''Treatise on Law'' is Thomas Aquinas' major work of legal philosophy. It forms questions 90–108 of the ''Prima Secundæ'' ("First artof the Second art) of the ''Summa Theologiæ'', Aquinas' masterwork of Scholastic philosophical theology. ...
''.
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
Hugo Grotius (; 10 April 1583 – 28 August 1645), also known as Huig de Groot () and Hugo de Groot (), was a Dutch humanist, diplomat, lawyer, theologian, jurist, poet and playwright.
A teenage intellectual prodigy, he was born in Delf ...
, 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 aes ...
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 O.S. 4 February 1747">Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747ref name="Johnson2012" /> – 6 June 1832) was an English philosopher, jurist, an ...
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
Positivism is an empiricist philosophical theory that holds that all genuine knowledge is either true by definition or positive—meaning ''a posteriori'' facts derived by reason and logic from sensory experience.John J. Macionis, Linda M. ...
; 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 c ...
, 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 systematic ...
, 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 ris ...
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'') 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
A state of emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state du ...
), 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 at Oxford University and the Principal of Brasenose College, Oxford. His ...
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
Ronald Myles Dworkin (; December 11, 1931 – February 14, 2013) was an American philosopher, jurist, and scholar of United States constitutional law. At the time of his death, he was Frank Henry Sommer Professor of Law and Philosophy at New Y ...
attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "
interpretive 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.