The statement that "Law is not found, it is made" encapsulates a central debate in jurisprudence about the ultimate source and nature of law. It posits law as a purely human construct, a product of social and political will, rather than a discovery of pre-existing principles. This essay will critically discuss this assertion by examining three prominent schools of thought: legal positivism, natural law theory, and Ronald Dworkin's interpretivism. It will be argued that while the statement accurately reflects the positivist position, it is directly challenged by natural law theory, and its simplicity is ultimately exposed by Dworkin's theory, which suggests law is both found and made through a process of interpretation.
Legal Positivism: Law as a Human Creation
Legal positivism provides the strongest support for the proposition that law is made. Positivists argue that a law’s validity is determined by its source and the manner of its creation, not by its moral content. For H.L.A. Hart, a leading positivist, law is a system of social rules. A legal system exists where primary rules of obligation (which govern conduct) are united with secondary rules that manage them, such as rules of change, adjudication, and, most importantly, the 'rule of recognition' (Hart, 2012). The rule of recognition is a social convention used by officials to identify which rules count as law in a given society. For example, in the UK, this might be 'what the Queen in Parliament enacts'. Law is therefore ‘made’ by human institutions according to socially accepted procedures. There is no necessary connection between law and morality; a law can be legally valid but morally reprehensible. This 'separability thesis' places positivism firmly on the side of law being a man-made artefact, not something ‘found’ in a higher moral order.
Natural Law Theory: Law as a Moral Discovery
In direct opposition to positivism, natural law theory argues that law is fundamentally ‘found’. Natural lawyers contend that there is an essential connection between law and morality. The authority of human-made (or positive) law is derived from its consistency with a higher moral law, which is discoverable through human reason. The classic formulation from St Thomas Aquinas, and echoed by modern theorists like John Finnis, is lex iniusta non est lex – an unjust law is not a law (Finnis, 2011). According to this view, legislators do not create law from nothing; rather, they are tasked with discovering and articulating principles of natural justice and reason to create a just order for the community. For Finnis, these principles are based on ‘basic goods’ such as life, knowledge, and sociability, which are self-evidently desirable for human flourishing. Positive law is thus a specification of these broader moral principles. Therefore, from a natural law perspective, the core of law is ‘found’ in the objective realities of morality and human nature, and human law-making is merely a process of giving this discovery practical effect.
Dworkin’s Interpretivism: A Middle Path
Ronald Dworkin’s theory of ‘law as integrity’ offers a more nuanced perspective that challenges the stark dichotomy between law being ‘found’ or ‘made’. Dworkin was a fierce critic of positivism, arguing that in ‘hard cases’ where legal rules are unclear, judges do not simply ‘make’ law by exercising strong discretion as Hart suggested. Instead, they are obligated to find the single right answer by engaging in an interpretive exercise (Dworkin, 1986). This process involves looking at the entire body of legal materials—statutes and precedents—and constructing the interpretation that best fits and justifies that material in its best moral light.
This is where points of convergence and divergence appear. Like natural law, Dworkin’s theory insists on a connection between law and morality. However, for Dworkin, the moral principles are not external to the law (as in classical natural law) but are internal principles found within the legal system’s own history and practice. In this sense, law is ‘found’. Yet, the process is not one of simple discovery. It is a creative, constructive enterprise where the judge must weave together disparate materials into a coherent whole, much like an author continuing a chain novel. This constructive element means the judge is also, in a sense, ‘making’ law. Dworkin thus diverges from the positivist idea that law is just a set of pre-existing rules, but also from the natural law idea that it is found in a universal moral code. Instead, law is perpetually made and re-made through interpretation, a process that is simultaneously creative and constrained by the past.
Conclusion
In conclusion, the statement "Law is not found, it is made" is an oversimplification of a complex jurisprudential question. While it serves as an accurate summary of the legal positivist school, which sees law as a product of human will and social convention, it is fundamentally rejected by natural law theory, which views law as being found in objective moral principles. The most sophisticated engagement with the statement comes from Dworkin’s interpretivism, which demonstrates that the two concepts are not mutually exclusive. For Dworkin, the judicial process involves both finding the principles embedded within the legal system and making a coherent and morally sound decision. Therefore, a more accurate statement might be that law is not simply found or made, but is constantly being constructed through a process of interpretation that involves both discovery and creation.
References
Dworkin, R. (1986) Law's Empire. Harvard University Press.
Finnis, J. (2011) Natural Law and Natural Rights. 2nd edn. Oxford University Press.
Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
