1.1 What Is Law?

Law is a set of rules that are enforced by a government authority. While other important directives and social norms help us make decisions about what we should and should not do, law sets forth requirements. If we ignore the law or do not behave within the boundaries of law for whatever reason, we may face consequences such as fines, imprisonment, or monetary damages.

Consider the nature of law. We might believe that “the law” is simply the actual words that are written by human beings. We might also believe that it includes “reading between the lines” to discern the spirit of the law. Or, we might believe that the law includes concepts that have not been reduced to written form by human beings, but exists due to some higher power, or simply as an inalienable right due to human beings simply by virtue of being human beings. Often, people can identify with all of these different ways of understanding the nature of law, and this understanding might shift based upon the issue being considered. For example, people who believed that marriage equality should be a civil right before it was recognized as such may have based their argument upon a belief that the right to marry whomever one wishes is an inalienable human right. However, that does not mean that people who based their argument on the belief in inalienable human rights will see that anything or everything is an inalienable human right. For some things, they will probably believe that the law is simply the actual words that are written by human beings. For example, people generally believe that the federal tax code is a valid law. That law is written by human beings, and many people do not try to “read between the lines” to discern the spirit of that law, nor do they necessarily believe that the ability for the government to tax its citizens is bestowed by some higher power or due to some inalienable right. Indeed, if lawmakers allow for a credit or a deduction, people are generally happy to take it, simply as the law is written.

But these different viewpoints suggest interesting questions. For example, would you obey a law that you disagreed with, or would you ignore such a law? Do you believe that what the law actually is matters as much as who enforces it? Do you think that morality is a part of legality, or do you think that morality is wholly separate from the law?

Based on the particular theory of jurisprudence to which one ascribes, these questions will generate different answers. Not only will the answers to these questions differ, but the potential outcomes of legal disputes can also vary widely, depending on one’s perception of what the law is. These differences highlight fundamental disagreements over the nature of law.

JurisprudenceThe philosophy of law. is the philosophy of law. The nature of law has been debated for centuries, giving rise to a general coalescence of ideas to create particular schools of thought. Let’s consider some different theories of jurisprudence.

At its most basic interpretation, some believe that law is simply power. Under this interpretation, law is followed because the sovereign issues orders that are backed by threats. Consider tyrannical rulers who create arbitrary laws or bad laws. If the sovereign has the power to enforce those “laws,” then regardless of the “badness” of the law, it is still law. The Nazis executed six million Jews pursuant to German law during World War II. Saddam Hussein routinely tortured and executed political opponents and minority Sunni Muslims in Iraq under Iraqi law. The military in Myanmar (known euphemistically as the State Peace and Development Council) imprisoned the democratically elected and Nobel Peace Prize–winning prime minister of the country, Aung San Suu Kyi, under color of authorityRefers to actions taken under the law..  Though Aung San Suu Kyi was released from her long imprisonment in 2010, other prisoners of conscienceAccording to Amnesty International, a prisoner of conscience are "people who have been jailed because of their political, religious or other conscientiously-held beliefs, ethnic origin, sex, color, language, national or social origin, economic status, birth, sexual orientation or other status, provided that they have neither used nor advocated violence." Free Prisoners of Conscience, http://www.amnestyusa.org/our-work/issues/prisoners-and-people-at-risk/prisoners-of-conscience and enforced disappearances An international crime and human rights violation where a person is detained by a state government, and that person's whereabouts are not revealed to the detainee's family, or the government denies that they were involved. around the world exist, of course. Those who ascribe to the idea that law is power often argue that coercion is an essential and necessary feature of law.

Let’s explore whether the law is nothing more than power. If an armed person robs your store, you will very likely hand over whatever it is that he or she wants. The robber has exercised power over you but has not exercised the law. This is because an armed robber is not the sovereign power. So, in that case, we can see that not all exercises of power equate to exercises of law. Of course, we can also easily find examples of laws that are backed by the sovereign’s power. Consider, for example, a government that institutes the draftCompulsory military service. under threat of imprisonment for failing to comply. The sovereign would have the power to deprive us of our liberty if we did not follow the rules; such a law certainly has the force of power behind it.

If law is nothing more than power, then the subjects of the law are simply at the mercy of whomever is in power. In Myanmar, the military ignored the results of democratic elections and placed Aung San Suu Kyi under house arrest for more than fifteen years to prevent her from taking power. However, if we look at the U.S. system of government, citizens do not need to feel that they are completely “at the mercy” of the government. This is because people also have power. People can elect their government officials, and they can vote “out” government officials who aren’t doing a good job. In this way, those in power are accountable to the people. We can critique the idea that law is nothing more than power by simply observing that in some systems of government, people are not so helpless vis-a-vis their government. Additionally, not all law requires the exercise or threat of overt power. For instance, compliance with some laws may be driven more by economic incentives, rather than by force of power.

A competing view is that of legal positivismA belief that the law is whatever the sovereign says it is. The law is written, human-made rules., whose proponents disagree that law is simply power. Legal positivists believe that the law is what the law says. The laws are written, human-made rules. The law is not drawn from any source higher than human beings. Legal positivists do not try to read between the lines. They may disagree with the law as it is written, but they will acquiesce to the sovereign power and follow the law as it is written. They reject the belief that subjects of a law have an individual right to disobey a law that they happen to oppose, providing that the law is from a legitimate source. Positivists believe that law is wholly separate from any consideration of ethics. This simply means that a question of ethics will be a different analysis than a question of law. Moreover, they do not believe in intrinsic rights, but instead, believe that rights are created by law, and law is written by human beings. 

Legal positivists do not believe that law is simply power, because they believe that valid law must be created pursuant to the existing rules that allow the law to be created. In short, the law must be created by a legitimate law-creating authority. Under this way of thinking, an arbitrary declaration of law by a sovereign who did not follow the rules for creating the law would not be viewed as valid law. It would lack legitimacy. Additionally, legal positivists would not consider any rule or “law” created by an illegitimate ruler as valid law. Consequently, a legal positivist would feel no need to obey an illegitimately created “law.”

Consider the example of the draft again. Some people have a strong moral objection to engaging in armed conflict with other human beings. However, a legal positivist would most certainly comply with a law that required compulsory conscription, though he or she might use other legal channels to try to change the law.

A common criticism of legal positivism is that it prohibits individuals from remaining true to their own consciences when their consciences conflict with the laws of the sovereign. However, for a positivist, the subjective belief in the “goodness” or “badness” of a law is not relevant for determining what the law is. The law is what the law says, providing it was created by a legitimate law-creating authority that has followed the rules for creating the law.

One criticism of legal positivism is that it is too limited in its conception of law. For instance, at least some laws seem to reflect a moral stance. The prohibition against insider tradingThe use of nonpublic information to buy or sell a stock to make money. might be said to encompass the idea of fairness, which is a moral consideration. Likewise, due processEnsures fundamental fairness and decency in government actions; levels of due process vary according to the property or liberty interest at stake. might be said to encompass the ideas of both fairness and a moral position against cruelty. Moreover, not all law is the result of a sovereign-issued, written rule. For example, international customary lawLaw composed of long-standing international customs or practices that have the force of law. has developed through customary practices between nation states. It is valid law, but it is not a set of rules handed down from a sovereign ruler or law-creating authority.

A different viewpoint is legal realismA belief that the law itself is less important than who is in the position to enforce it., which is the belief that the law itself is far less important than the consideration of who is in the position to enforce the law. Like positivists, legal realists believe that law is the product of human making. However, unlike positivists, they believe that the outcome of any issue that arises under law is dependent on the person, such as a judge, who is in the position to exercise power under the mantle of the law. Additionally, realists believe that social and economic considerations should be brought to bear in legal disputes, which may very well be “extra” considerations that are not captured by the written law itself. In short, for a legal realist, knowing who is enforcing the law is far more important than what the law actually says.

If a realist brought a dispute before a particular judge who was known to be unsympathetic to that particular type of dispute, the realist would believe that the judge’s decision would reflect that leaning. For example, if a dispute arose under the Clean Water Act, and the defendant was a legal realist who believed that the judge was unduly harsh with environmental offenders, the legal realist would not look to the actual words of the Clean Water Act itself to predict an expected likely outcome. Instead, the defendant would view the judge’s personal and professional beliefs about water pollution as determinative factors. Similarly, if the plaintiff in the same case was a realist who did not believe that the Clean Water Act was written very clearly, that plaintiff might hope that the judge would consider the social importance of clean water to human health, natural environment, and nonhuman animals.

Critics of legal realism point out that those who are in the position to exercise the power of the law over others should not circumscribe the checks and balances of our system of government by considering factors outside of legitimate sources of law when making decisions. For instance, they argue that judges should not use any factors other than the written law when rendering decisions. Legal realists, however, point out that judicial interpretation not only is necessary but also was contemplated by our Founding Fathers as a built-in check and balance to our other branches of government.

Natural lawA belief that humans possess certain inalienable rights that are not the products of human-made law. is the idea that humans possess certain inalienable rights that are not the products of human-made law. Many of the writers of the United States Declaration of Independence and Constitution believed in some aspects of natural law granting rights to citizens that no government could take away and with which no government could interfere. Therefore, we can say that natural law differs from both positivism and realism in this important respect. Humans are able to reason, and therefore they are able to discover moral truths on their own. They are not automatons who require a sovereign power to tell them right from wrong. Natural law adherents do not reject human-made law. However, they recognize that human-made law is subordinate to natural law if the two types of law conflict.

Civil rights activists often rely on natural law arguments to advance their platforms. This is true today as well as historically. For example, a civil rights advocate might point out that regardless of what the law “says,” discrimination based on race is simply wrong. If the written law allowed racial discrimination, natural law adherents would not recognize the law as valid. Edward Snowden may have relied upon a natural law perspective, when he violated U.S. law by revealing classified information under the belief that people had a “right” to know that the government may have overreached its constitutional authority to surveil its citizens.

Legal pragmatism Emphasizes the context of disputes or facts, questions the foundations of law, views law as an instrument, and recognizes that alternative perspectives are unavoidable.  See Internet Encyclopedia of Philosophy, Legal Pragmatism http://www.iep.utm.edu/leglprag/.is another viewpoint. In a nutshell, pragmatists reject the idea of legal formalism or undue attachment to any theory of jurisprudence at all. They believe that judges, in particular, should apply a wide range of information to help them decide cases - not simply legal precedent, or any theoretical commitment to a particular way of thinking. Instead, law should be viewed as an instrument and as a practice, and the facts of a case should be understood in their context. Judge Richard Posner is a proponent of legal pragmatism.

Each theory of jurisprudence can inform our understanding of legal issues by allowing us to see the same thing from many different perspectives. Moreover, depending on philosophical perspective, there may be several possible outcomes to the same legal dispute that are equally supportable. This understanding can help us identify common ground among disputants as well as points of departure in their reasoning.