Critical Analysis of Law-Making: Convergence and Divergence Among Three Legal Schools

# “Law is not found, it is made”: A Critical Discussion

## Introduction

The statement “law is not found, it is made” captures a central and enduring debate in legal philosophy about the very nature of law. It questions whether law is a set of pre-existing, objective principles that legal officials discover, or whether it is a human creation, shaped by social, political, and institutional forces. To argue that law is ‘found’ suggests it has an existence independent of human will, rooted in morality or reason. Conversely, to state that law is ‘made’ frames it as a product of human authority and choice. This essay will critically discuss this statement by examining it through the lens of three major schools of jurisprudential thought: natural law, legal positivism, and legal realism. It will be argued that while the natural law tradition provides a powerful argument for law being ‘found’ in morality, the ‘made’ perspective, as articulated by legal positivists and legal realists, offers a more accurate description of how law operates in a modern legal system like that of England and Wales. The essay will explore the core tenets of each theory before highlighting their key points of divergence and convergence on this fundamental question.

## Natural Law: The ‘Found’ Law

The school of natural law is the oldest tradition in legal philosophy and directly challenges the idea that law is simply ‘made’. At its core, natural law theory proposes that there is a higher, universal law based on morality and reason, which is accessible to all human beings. True, valid human law is therefore not made from nothing, but is ‘found’ by discovering and reflecting these inherent moral principles. As one leading scholar explains, this tradition sees a necessary connection between law and morality; an unjust rule that violates these fundamental principles is not considered a true law at all.¹ This is famously encapsulated in the maxim *lex iniusta non est lex* (an unjust law is not law).

Thinkers from the classical theorist St. Thomas Aquinas to the modern philosopher Lon Fuller have developed this idea. For them, the authority of man-made, or ‘positive’, law depends on its consistency with this higher natural law. For example, fundamental human rights, such as the right to life or the prohibition of torture, are not seen as things created by a parliament or a court, but as principles ‘found’ in the inherent dignity and nature of humanity. From this perspective, when a legislature enacts a statute protecting these rights, it is not ‘making’ law in the sense of creating it from scratch; rather, it is giving formal recognition to a pre-existing moral truth. Therefore, natural law theory asserts that the essential substance of law is discovered, not invented, placing it in direct opposition to the statement in the question.

## Legal Positivism: The ‘Made’ Law

In stark contrast to natural law, legal positivism provides strong support for the statement that “law is not found, it is made”. The central argument of positivism is what is known as the ‘separation thesis’: there is no necessary connection between law and morality. For a positivist, a rule is a valid law not because it is moral or just, but because it has been created by a recognised law-making authority in society, following the correct procedures. Law is thus a social fact, a product of human will and convention.

The most influential modern positivist, H.L.A. Hart, argued that a legal system is a union of primary rules (which impose duties) and secondary rules (which confer powers). The ultimate test for the validity of any law is a secondary rule he termed the ‘rule of recognition’.² This is a social rule accepted by officials in a legal system that specifies the criteria for identifying valid laws, such as ‘what the Queen in Parliament enacts is law’. In the UK, the doctrine of Parliamentary Sovereignty is a clear example of this. The Hunting Act 2004, for instance, is a valid law regardless of one’s moral stance on fox hunting because it was passed by Parliament, the body identified by the UK’s rule of recognition. Its validity comes from its source, not its moral content. Positivism, therefore, firmly places law in the category of things that are ‘made’ by human institutions according to established social rules, making the statement that law is ‘made’ its central claim.

## Legal Realism: Law Made in Practice

Legal realism, particularly the American school of thought, takes the idea that law is ‘made’ a step further. While positivists see law as being made primarily by the legislature, realists are more sceptical of formal rules and focus on what judges and officials *actually do*. They argue that the ‘law in the books’ (statutes and case law) is often indeterminate and that the ‘law in action’ (the real-world decisions of courts) is what truly matters. For a realist, law is not a static set of rules but is what the judge decides it is on a given day.

Realists believe that in reaching their decisions, judges are influenced by a range of factors beyond legal rules, including their personal beliefs, political views, and policy considerations. As one commentator notes, realists see judges as ‘making’ law in a much more direct and continuous way than positivists might admit.³ The development of the common law provides many examples. In the landmark case of *Donoghue v Stevenson* [1932] AC 562, Lord Atkin did not simply ‘find’ the neighbour principle; he articulated a new, broad principle of negligence that effectively ‘made’ new law to govern manufacturers’ liability. Realists would argue that he was making a policy choice about who should bear the loss for defective products. From this perspective, law is not just made by Parliament; it is constantly being made and remade by the judiciary as they interpret statutes and develop precedent. This makes realism an even stronger endorsement of the idea that law is ‘made’.

## Points of Convergence and Divergence

The most significant point of divergence is between natural law on one side, and positivism and realism on the other. Natural lawyers contend that law’s ultimate source is morality and reason, meaning its core principles are ‘found’. In contrast, both positivists and realists agree that law is a human creation, a social phenomenon. They both reject the natural law claim that a rule’s legal validity depends on its moral correctness. This shared rejection of morality as a condition of legality is a key point of convergence between positivism and realism.

However, a clear divergence exists between positivists and realists concerning *where* and *by whom* law is made. Positivists, like Hart, emphasise the formal, systematic nature of law-making, with the legislature (such as Parliament) being the primary creator of law according to the rule of recognition.² For them, judges generally apply these pre-existing rules. Realists, by contrast, shift the focus to the courts, arguing that judges are the principal lawmakers in practice, as they give meaning to vague statutes and create new rules through precedent.³

Despite these differences, there are subtle areas of convergence. Hart himself conceded that in ‘hard cases’, where existing rules are unclear or do not provide a determinate answer, judges must exercise discretion and act as lawmakers to fill the gaps.² This admission brings the positivist position closer to the realist one, acknowledging that judges do, at least in some circumstances, ‘make’ law rather than just apply it. Furthermore, even natural lawyers must accept that human institutions are needed to translate higher moral principles into specific, enforceable ‘positive’ laws. Their argument is less about whether humans write laws and more about the ultimate source of their legitimacy and validity. This shows that all three schools grapple with the role of human institutions in the creation of legal rules, even if they disagree fundamentally on the ultimate source of law’s authority.

## Conclusion

The assertion that “law is not found, it is made” serves as a fundamental dividing line between major schools of legal thought. Natural law theory stands in direct opposition, proposing that law is ‘found’ in universal moral principles, and that man-made rules are only valid insofar as they reflect these truths. However, this essay has argued that the ‘made’ perspective provides a more convincing account of a modern legal system. Legal positivism effectively explains how law is created by recognised institutions like Parliament, with its validity resting on its source rather than its moral worth. Legal realism builds on this, providing a cynical but often accurate insight into how judicial interpretation and discretion continuously ‘make’ and shape the law in practice. While all three schools offer valuable perspectives, the combined view of positivism and realism demonstrates that law, as it is experienced and practiced in England and Wales, is overwhelmingly a human construct. It is a system of rules and decisions ‘made’ by legislatures and judges, rather than a set of timeless principles ‘found’ in nature or reason.

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¹ Raymond Wacks, *Understanding Jurisprudence: An Introduction to Legal Theory* (6th edn, Oxford University Press 2021) [I am unable to provide an accurate page number].
² H.L.A. Hart, *The Concept of Law* (3rd edn, Oxford University Press 2012) [I am unable to provide an accurate page number].
³ Brian Bix, *Jurisprudence: Theory and Context* (8th edn, Sweet & Maxwell 2019) [I am unable to provide an accurate page number].

## References

• Bix, B. (2019) Jurisprudence: Theory and Context. 8th edn. Sweet & Maxwell.
• Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
• Wacks, R. (2021) Understanding Jurisprudence: An Introduction to Legal Theory. 6th edn. Oxford University Press.