Introduction
The statement "Law is not law" appears, on its face, to be a logical contradiction. However, within legal philosophy, it serves as a powerful and concise entry point into the perennial debate about the very nature of law. The phrase questions whether a rule that has the formal appearance of law, having been created by a recognised legal authority, can cease to be considered 'law' if it lacks a certain essential quality, most often a moral one. This essay will argue that the validity of the statement "law is not law" is entirely dependent on the jurisprudential perspective adopted. It will explore this by contrasting the positions of legal positivism, which largely rejects the statement, with natural law theory, which embraces it as a fundamental principle.
The Positivist Rejection
Legal positivism is a school of thought that insists on a strict separation between law and morality. For positivists, the defining feature of law is not its moral content but its source. If a rule is created according to the established procedures of a given legal system, it is a valid law. H.L.A. Hart, a leading positivist, argued that a legal system is characterised by the union of primary rules of obligation and secondary rules, including a "rule of recognition" which provides the criteria for identifying valid law within that system (Hart, 1961). For example, in the UK, the rule of recognition identifies an Act of Parliament as a primary source of law.
From this perspective, the statement "law is not law" is incoherent. An Act of Parliament, even if widely considered unfair or immoral, remains law until it is repealed through the proper constitutional process. A positivist would argue that while one may have a strong moral reason to disobey an unjust law, this does not strip the rule of its legal validity (Hart, 1958). To confuse the legal question of "what is law?" with the moral question of "what should the law be?" is, for the positivist, a fundamental error. Therefore, a law duly enacted is always law, regardless of its content.
The Natural Law Affirmation
By contrast, natural law theory posits an essential connection between law and morality. This tradition, stretching from classical thinkers like St. Augustine to modern jurists like John Finnis, holds that for a human-made (or 'positive') law to be truly law, it must align with a higher moral order. The classic articulation of this view is the maxim lex injusta non est lex – an unjust law is not a law (Finnis, 1980).
According to this view, a rule that is profoundly unjust or violates fundamental human rights lacks the moral authority inherent in the concept of law. It may have the form of law, but it is a perversion of it. The most cited examples are the laws of Nazi Germany. While these laws were enacted through the procedures of the then-German state, they were so grotesquely immoral—authorising persecution and genocide—that a natural lawyer would argue they were not valid laws at all, but rather a form of institutionalised violence (Fuller, 1958). From this standpoint, the statement "law is not law" is not a contradiction but a vital moral and legal judgment. It asserts that there is a line beyond which a state's commands lose their claim to be called 'law' and, consequently, their claim on a citizen's obedience.
Conclusion
In conclusion, the assertion that "law is not law" serves to highlight the fundamental schism in legal philosophy. For the legal positivist, who defines law by its pedigree and formal enactment, the statement is a nonsensical paradox; law is law simply because it has been posited as such by a recognised authority. However, for the natural lawyer, who insists that law must be tethered to a moral foundation to be legitimate, the statement is a crucial tool for critique. It provides a basis for denying legal validity to enactments that are gravely unjust. The enduring debate between these two perspectives demonstrates that the seemingly simple question of what constitutes 'law' is, in fact, deeply complex, and one's answer reveals foundational beliefs about the relationship between state power, morality, and justice.
References
- Finnis, J. (1980) Natural Law and Natural Rights. Oxford: Clarendon Press.
- Fuller, L.L. (1958) 'Positivism and Fidelity to Law: A Reply to Professor Hart'. Harvard Law Review, 71(4), pp. 630-672.
- Hart, H.L.A. (1958) 'Positivism and the Separation of Law and Morals'. Harvard Law Review, 71(4), pp. 593-629.
- Hart, H.L.A. (1961) The Concept of Law. Oxford: Clarendon Press.
