**COVER PAGE**
**LLB Jurisprudence**
**Assignment Title:**
“Law is not found, it is made.”
Critically discuss this statement with reference to at least THREE schools of jurisprudential thought you have studied, clearly bringing out the points of convergence and divergence between them.
**Candidate Name:** Elizabeth Muuba
**Student Number:** 2022101548
**Submission Information:**
* This Assignment counts for 15% towards Continuous Assessment.
* All work submitted must be the candidate’s original work.
* Plagiarism, including copying from online sources or AI-generated content without proper engagement and attribution, will result in a zero mark and may trigger disciplinary action.
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* Not more than 5 typed pages inclusive of cover page and Bibliography.
The statement ‘Law is not found, it is made’ encapsulates a fundamental conflict within legal philosophy concerning the origin and nature of law. It questions whether law is a set of pre-existing principles that humans discover, or a human invention created to serve social purposes. This essay will critically discuss this statement by examining three distinct schools of jurisprudence: natural law, legal positivism, and legal realism. It will explore how each theory approaches the statement, highlighting the significant points of divergence and the more subtle areas of convergence between them.
The theory of natural law most directly challenges the statement. Natural lawyers argue that there is a necessary connection between law and morality and that true law is derived from a higher, objective source, such as God, reason, or nature itself. From this perspective, fundamental legal principles are not ‘made’ by human institutions like parliaments or courts; they are ‘found’ or discovered through reason and conscience. For example, St Thomas Aquinas distinguished between eternal law (God’s plan for the universe) and natural law, which is humanity’s participation in that eternal law through reason.¹ This implies that a human law that violates a principle of natural law, such as the prohibition on murder, is not a true law at all. Therefore, natural law theory contends that the core of law is found, and any law ‘made’ by humans is only valid insofar as it aligns with these discovered moral principles.
In direct opposition, legal positivism strongly supports the assertion that law is ‘made’. Positivists argue for a strict separation between law and morality. For them, a law is valid not because it is just or moral, but because it has been created through the correct procedures by a recognised authority. John Austin’s command theory, for instance, defines law as the command of a sovereign backed by the threat of a sanction.² A more modern positivist, H.L.A. Hart, proposed that law is a system of primary and secondary rules, with the validity of the entire system resting on a foundational ‘rule of recognition’—a social rule accepted by officials that identifies which rules count as law in that society.³ This rule is a social fact, a human convention. Law is therefore a human creation, entirely ‘made’ through social and political processes, and its moral content is irrelevant to its legal validity.
Legal realism takes the idea of law being ‘made’ a step further, focusing on its application rather than its formal creation. Realists are sceptical of the idea that judges simply apply pre-existing rules to cases. Instead, they argue that judges ‘make’ law in the process of adjudication. Oliver Wendell Holmes Jr famously stated, ‘The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law’.⁴ This suggests that the law in the statute books is less important than the law in action. For realists, what a judge had for breakfast can be as influential on a case’s outcome as a legal precedent. Thus, law is not just made by legislatures in a formal sense; it is continuously and practically made by judges as they respond to the specific facts of cases before them.
The primary point of divergence is clear: natural law posits that law is found, whereas both positivism and realism insist it is made. However, the divergence between positivism and realism is also significant. Positivism sees law as being made by a recognised legislative authority, creating a system of rules that judges then apply. Realism, by contrast, sees the primary law-makers as the judges themselves in the act of deciding cases. Yet, a point of convergence can be identified between Hart’s sophisticated positivism and realism. Hart acknowledged that legal rules have an ‘open texture’, meaning that in difficult or unforeseen cases (the ‘penumbra of doubt’), the rules are indeterminate. In these ‘hard cases’, judges must use their discretion to effectively create new law, acting as a legislator would.⁵ This admission that judges have a law-making function, albeit in limited circumstances, brings positivism closer to the realist view that judges are central figures in the making of law.
In conclusion, the statement ‘Law is not found, it is made’ serves as a useful dividing line between major jurisprudential theories. Natural law fundamentally rejects the statement, asserting that true law is discovered in universal moral principles. Conversely, both legal positivism and legal realism strongly agree that law is a human creation. While they differ on whether law is primarily made by legislatures or by courts, they share the core belief that law is a product of human will and social practice, not a pre-existing moral truth waiting to be found.
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¹ Thomas Aquinas, *Summa Theologiae* (1265-1274) Ia IIae 91.
² John Austin, *The Province of Jurisprudence Determined* (John Murray 1832).
³ H.L.A. Hart, *The Concept of Law* (3rd edn, OUP 2012).
⁴ Oliver Wendell Holmes Jr, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457, 461.
⁵ Hart (n 3) 124-136.
## Bibliography
Aquinas T, *Summa Theologiae* (1265-1274)
Austin J, *The Province of Jurisprudence Determined* (John Murray 1832)
Hart H.L.A, *The Concept of Law* (3rd edn, OUP 2012)
Holmes O, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457
Wacks R, *Understanding Jurisprudence: An Introduction to Legal Theory* (6th edn, OUP 2020)
