The question “what is law?” appears simple, yet it has been the subject of debate among philosophers and legal scholars for centuries. There is no single, universally accepted definition. Instead, different theories provide different ways of understanding the nature and function of law. This essay will outline two of the most prominent schools of thought in legal philosophy, legal positivism and natural law, to demonstrate the different approaches to defining law. It will show that the definition of law often depends on whether one believes law should be separated from morality.
Legal Positivism
Legal positivism is a theory that argues for a strict separation between law and morality. From this perspective, the validity of a law does not depend on whether it is just or fair, but simply on whether it has been created by the correct social and political processes. As long as a law is ‘posited’ (laid down) by a recognised authority, such as a sovereign or parliament, it is a valid law.
An early and influential positivist was John Austin, who developed the ‘command theory’ of law. For Austin, a law is a command issued by a sovereign (a person or body who is habitually obeyed and who does not obey anyone else), which is backed by the threat of a sanction or punishment (Austin, 1995). This view sees law simply as an expression of power. However, this theory has been criticised for being too simplistic. For example, it does not explain laws that grant powers, such as the power to make a will, rather than imposing duties.
A more modern and sophisticated version of legal positivism was developed by H.L.A. Hart. In his book, *The Concept of Law*, Hart argued that a legal system is a union of primary and secondary rules (Hart, 2012). Primary rules are those that impose duties on citizens, such as the rules of criminal law. Secondary rules are rules about the primary rules; they govern how primary rules are created, changed, and adjudicated. The most important of these is the ‘rule of recognition’, which is a social rule accepted by officials that specifies the criteria for identifying valid laws within a particular legal system, such as being enacted by Parliament (Hart, 2012). For Hart, a law is valid if it meets the criteria of the rule of recognition, regardless of its moral content.
Natural Law Theory
In direct contrast to positivism, natural law theory insists that there is a necessary connection between law and morality. Natural lawyers believe that there are universal moral principles that exist independently of human-made law. For a law to be truly considered ‘law’, it must be consistent with these moral principles. The classic expression of this view is the maxim *lex iniusta non est lex* (an unjust law is not a law).
This tradition dates back to ancient philosophers and was developed by theologians like Thomas Aquinas, who argued that human law is only valid if it conforms to a higher natural law, which itself is derived from God’s eternal law (Wacks, 2020). While influential, this religious basis is not shared by all natural law theorists. A more modern, secular version was proposed by Lon Fuller. Fuller argued that for a system of rules to be called a legal system, it must comply with an ‘inner morality of law’ (Fuller, 1969). This involves adhering to certain procedural principles, such as laws being clear, public, consistent, and stable. A regime that fails to meet these procedural requirements, such as the Nazi regime, would not, in Fuller’s view, have a system of law at all.
Conclusion
In conclusion, there is no straightforward answer to the question “what is law?”. The definition depends on the philosophical standpoint taken. Legal positivists like Hart argue that law is a social fact, defined by its source and structure rather than its moral content. This provides a clear way of identifying what the law ‘is’ in a given society. In contrast, natural law theorists like Fuller argue that law cannot be completely separated from morality and that a system of rules must possess a certain moral quality to be worthy of the name ‘law’. While positivism focuses on formal validity, natural law focuses on moral legitimacy. Both theories offer valuable, though competing, insights into the complex nature of law, showing that its definition remains a fundamental point of legal and philosophical inquiry.
References
- Austin, J. (1995) The Province of Jurisprudence Determined. Cambridge University Press.
- Fuller, L. L. (1969) The Morality of Law. Revised edn. Yale University Press.
- Hart, H. L. A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
- Wacks, R. (2020) Understanding Jurisprudence: An Introduction to Legal Theory. 6th edn. Oxford University Press.
