Gavin Howe
The concept of law has been approached from various angles by different scholars. Law is generally understood as a set of rules created and enforced by governing institutions to regulate behaviour and mediate relations between people. The rule of law is a system that delivers accountability, justice, and respect for fundamental rights. Research shows that countries with stronger rule of law tend to have higher economic growth, greater peace, better education, and improved health outcomes. While some scholars view law as a science, others see it as the art of justice. The Positivist school, for example, asserts that law is separate from morality, while Christians emphasize the moral foundations of law. The Historical school, on the other hand, focuses on the evolution of law alongside societal growth and local customs. These varying perspectives on law showcase the complexity and depth of the discipline.
| Characteristics | Values |
|---|---|
| A set of rules | Regulate human conduct and relations |
| Enforced by social or governmental institutions | Sovereign authorities of a state |
| A durable system of institutions and norms | Accountability, justice, and impartiality |
| Correlated with higher economic growth, greater peace, more education, and improved health outcomes | Varies based on location and culture |
| Influenced by religion in some cases | Christian canon law, Jewish Halakha, Islamic Sharia |
| Based on academic writings and principles from case law | Common law |
| A science dealing with creation, exploration, and enforcement | N/A |
| Universal and applicable everywhere | N/A |
| Based on the general will of the people and local customs | Historical school, Volksgeist theory |
| No connection between law and morality | Positivist school, Analytical school |
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What You'll Learn
Law as a set of rules
One of the earliest known legal treatises, the Arthashastra (c. 100 AD), laid down authoritative legal guidance for ancient India. Similarly, religious laws such as Jewish Halakha, Islamic Sharia, and Christian canon law are all examples of rule-based systems that guide followers on the "path to follow".
In the Western tradition, the concept of law as a set of rules can be traced back to the influence of Roman law and the Justinian Code in Europe. This civil law tradition, along with religious influences, shaped the legal codes of countries in continental Europe and beyond. The idea of law as a durable system of rules that delivers accountability, open government, and impartial justice is known as the rule of law.
According to John Chipman Gray, "the Law of the State or of any organised body of men is composed of the rules which the courts, the judicial organ of the body, lay down for the determination of legal rights and duties." This definition highlights the role of courts in interpreting and applying rules to specific cases, thereby shaping the law itself.
The positivist school of thought, associated with scholars like Sir Henry Maine and Edmund Burke, asserts that law is a product of social consciousness and the general will of the people. It evolves as society grows and changes, and its integrity is maintained through a neutral judiciary. However, critics argue that this view overlooks the importance of underlying principles and the potential for law to be influenced by morality and social values.
In summary, the concept of law as a set of rules emphasises the role of sovereign authorities and institutions in creating and enforcing rules to regulate society. While this perspective provides a clear framework for understanding and applying the law, it also faces criticism for potentially neglecting the complex interplay between legal principles, morality, and social consciousness.
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The rule of law and its principles
The rule of law is a system of laws, institutions, norms, and community commitment that upholds four universal principles: accountability, just law, open government, and accessible and impartial justice.
Firstly, accountability refers to the government and private actors being accountable under the law. Secondly, just law entails that the law is clear, publicized, stable, and applied evenly to ensure human, property, contract, and procedural rights. Thirdly, open government means that the processes of law adoption, administration, adjudication, and enforcement are accessible, fair, and efficient. Lastly, accessible and impartial justice means that justice is delivered in a timely manner by competent, ethical, and independent representatives who are accessible and adequately resourced, reflecting the communities they serve.
These principles are the foundation for communities of justice, opportunity, and peace, underpinning development, accountable government, and respect for fundamental rights. Research supports this, showing that stronger rule of law correlates with higher economic growth, greater peace, improved education, and better health outcomes.
The rule of law is distinct from the concept of the 'rule by law', where laws may be used as an instrument of oppression, with little regard for justice or the welfare of the people. The rule of law, in contrast, emphasizes that laws should be just and serve the people, protecting their rights and freedoms. This distinction is important in understanding the principles and purpose of the rule of law.
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Religion and law
When examining the concept of law, it is important to consider the relationship between religion and law, as many legal scholars have explored this complex interplay. Religion has had a profound influence on the development of legal systems around the world, and this influence continues to shape legal discourse and practice today.
One of the key scholars who recognized the significance of religion in the context of law was Émile Durkheim, a French sociologist. Durkheim argued that religion was the foundation of society's moral and social order. He believed that religious beliefs and practices played a crucial role in shaping societal norms and values, which in turn influenced the development of legal systems. In his view, religion provided a set of shared beliefs and values that helped to unify society and promote social solidarity.
Another scholar who recognized the importance of religion in the study of law was Max Weber, a German sociologist and political economist. Weber's work focused on the relationship between religion and economics, and he argued that religious beliefs and practices had significant implications for legal systems and social structure. He introduced the concept of "charismatic authority," which is based on the idea that religious leaders or figures possess a certain charm, virtue, or power that inspires loyalty and obedience from their followers.
Religious legal systems, such as Islamic law (Sharia) and Canon law in Christianity, are rooted in sacred texts and traditions. These legal systems provide a framework for regulating the behavior and practices of their followers, covering areas such as family law, property law, and criminal law. Canon law, for example, is a set of laws and regulations made by Catholic Church authorities to govern the organization and activities of the church and its members. Sharia law, on the other hand, is a religious law forming part of the Islamic tradition that deals with many aspects of Muslim life, including religious rituals, politics, and economics, and has been interpreted in various ways across history.
It is important to recognize that the influence of religion on law is not static or uniform. The relationship between religion and law varies across different societies and cultures, and it evolves over time. In some cases, religious norms and values may be codified into formal legal codes, while in other cases, they may exist as informal social norms that influence the interpretation and application of formal laws. Additionally, the interpretation and application of religious laws can be subject to change and variation, as different sects, denominations, or schools of thought may emerge and offer diverse interpretations.
In conclusion, when considering the question "What is law?" it is clear that religion has played a significant role in shaping legal systems and continues to influence legal discourse and practice. Scholars such as Durkheim and Weber recognized the importance of religion in understanding the development of law and the maintenance of social order. Religious legal systems provide a framework for regulating behavior, and the influence of religion on law varies across cultures and evolves over time. A thorough understanding of law requires a recognition of the complex and dynamic relationship between religion and legal systems.
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The Positivist School
Positivists regard law as a social construction, created by authority figures or political authorities. They argue that law is based on the power of those who enact and enforce it, and that it is separate from morality and natural law. According to this view, a law is valid not because it is intrinsically moral or just, but because it is backed by a legitimate authority and accepted by society. The positivist school differentiates between "law as it is" and "law as it ought to be," prioritising the former. They assert that the existence of a legal system in a society depends on the different structures of governance present, rather than its adherence to ideals of justice, democracy, or the rule of law.
Notable figures associated with the development of the Positivist School include Jeremy Bentham, John Austin, H.L.A. Hart, Thomas Hobbes, and Hans Kelsen. Bentham recognised the contrast between what society desired and what was logically necessary, and his theory placed less emphasis on sanctions. Austin, on the other hand, endorsed common law and differentiated between expositors and censors in his philosophy of law. Hart, a contemporary legal positivist, emphasised the Separation Thesis, which states that law and morality are conceptually distinct. Kelsen further developed legal positivism by introducing the concept of a hierarchy of norms, with the "basic norm" as the ultimate source of legal authority, rather than the sovereign.
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The Historical School
According to the Historical School, laws are created by people to meet their changing needs and should adapt to the evolving requirements of society. It underscores that law is shaped by the customs and habits of people, rather than by judges or higher authorities. This perspective rejects the notion that laws are static and set in stone, recognizing the dynamic nature of legislation and its intrinsic link to the progress of society.
Key figures such as Friedrich Carl von Savigny, Montesquieu, and Georg Friedrich Puchta were instrumental in developing this jurisprudential approach. Savigny introduced the concept of "Volksgeist," highlighting the collective will of the people in shaping the law. Montesquieu, whose ideas laid the groundwork for this school of thought in France, emphasized the necessity of adapting laws to changing social and environmental conditions. He believed that the quality of a law was contingent on the social, political, and environmental conditions of a society. Puchta further refined and rationalized these ideas, providing a comprehensive framework for understanding the Historical School's perspective.
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Frequently asked questions
Law is a set of rules created and enforced by the authorities of a state to regulate human conduct and relations.
The Positivist School of Law, also known as the Analytical School, states that law is the command of the sovereign. It suggests that judges should decide cases based on predetermined cases, setting aside their morals.
The Historical School of Law is based on the Volksgeist theory, which suggests that law is based on the general will of the people and evolves as the nation grows. It also acknowledges that laws are based on local customs, behaviours, and thought processes.
The rule of law is a system of laws and institutions that promote accountability, justice, and respect for fundamental rights. Research shows that stronger rule of law correlates with higher economic growth, greater peace, improved education levels, and better health outcomes.
Religious law is based on religious precepts, such as the Jewish Halakha and Islamic Sharia. Religious laws imply unalterability due to their divine nature. Most religious jurisdictions, however, require human elaboration to create thorough legal systems.
