Saturday, July 10, 2021

The Philosophy of Law

When we think of law, and what law means to us as a society, we all have a good idea, or rather an innate sense, of what law is and the kind of things to expect. But trying to put an accurate definition on what law is is somewhat more of a difficult task. This very question lies at the heart of the study of jurisprudence, or legal philosophy. Since early civilisation, philosophers and thinkers have worked with a view to establishing a definitive meaning of what law is and where it fits in to the community. From these efforts have arisen major 'schools' of thought which demonstrate ideas and concepts distinct from one and other yet equally valid in their interpretations.

When asked 'what is law?', most people will proffer an initial response along the lines of 'law is rules', or on a more complex level, 'law is the rules that regulate our behaviour'. This basic response is actually very valid, and true it forms the cornerstone of numerous schools of thought. However, posing slightly more probing questions raises doubts as to the validity of this statement, and casts doubt over a large consensus of lay-opinion on the matter. For example, if the law is a regulatory body of rules, then by itself it is useless. Rules alone can surely only set parameters at most, and can never seek to regulate independently. In order to provide this regulatory aspect, there is a requirement for something more; there is a requirement for enforcement, or coercion. In our society, this is provided by the threat of sanctions like prison and fines. Therefore our traditional notion of law as 'rules' is deeply flawed: law must be more of an interaction between rules and a physical persuasion. In other words, we need some motivation to obey the law, partly as a consequence of our nature as human beings, to keep us within its boundaries and to keep up above its line of governance, therefore there is more required to offer an accurate description than this simple straightforward idea.

Consider also this fundamental point in determining the nature of law at a conceptual level. If the law, as we see it, is a body of rules, in what sense do these rules operate, i.e. are the prescriptive (how one must behave), or descriptive (how the majority of society behave). If it is prescriptive, there would essentially be a requirement for every citizen to learn the law from a young age in order to ensure consistency with the proscriptive body of legislation. If on the other hand it is descriptive of how society behaves, this raises the problem of authority: the way society behaves is not an objective concept, therefore why should any given person or body of people be afforded a subjective look at what is right and what is wrong? In a nation with strong fundamental freedoms, it is even more peculiar that the law is allowed to operate, if it were to operate in this sense. Rather it would seem more apt to consider law as a relationship between people internally (with other people) and with the state, with an element of mutual consensus in achieving the relevant social ends.

From this basic analysis of the conceptual nature of law, it is obvious that there is scope for debate. So much so, legal scholars have for generations sought academic argumentation and competition with other writers. From Aristotle to Dworkin to HLA Hart and beyond, the concept of the nature of law is one which is both fascinating and complex, with many facets and caveats yet to be explored. In an international legal context, the study of jurisprudence transcends jurisdiction and specific legal training moving towards the realms of independent thought and observation. Nevertheless the nature of law is a popular academic study, as well as an interesting and thought provoking topic for the 'everyday' citizen subject to its governance.