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What does law do

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What does law do?  What is its purpose?


John Stuart Mill (English philosopher born 1806 - [Godson of Bentham]), On Liberty (1859) held that liberalism, seeks to promote as much individual liberty as is compatible with everyone else having the same liberty, the state should not use the criminal law to prevent immoral conduct that does not cause harm or offence to others,


JS Mill’s "Harm to Others" Principle

Mill stated "The only time law can be used to prevent someone doing an act, is to prevent harm to others". The problem is he didn't say what harm is, and he didn't say who others were. One could ask,  “Should you use law to prevent 'harm' in all cases?” 


Take for example adultery and suicide, both would cause 'harm' to others. However, the law will say nothing about such behaviour.



Bentham argued that a utilitarian view of the law is that the law should produce the best consequences. The utilitarian approach is most often seen the relation between law and economics where the law supports the creation of wealth.


Positivists such as Bentham and Austin see law as a system of commands backed by sanctions.  Others such as Professor Hart stress rules and their pedigree as the essential elements of a legal system.  Ronald Dworkin (American philosopher born 1931) disagrees, and said law involves principles as well as rules.


Sovereign commands

How does the positivist distinguish commands that count as law from commands that do not, without appealing to morality? Austin argues that law is distinguished from other commands by being the command of the sovereign; he wrote in “Lectures on Jurisprudence” (1869)) that the gunman’s command lacks this pedigree.


Who then is sovereign? Not someone who has a right to rule, or who rules legitimately, for this would interject morality into the law. Rather, it is someone who is sovereign, who is in fact obeyed.


Professor Hart answers this by saying that it makes the legal system nothing more than “a gunman writ large”. 


Hart adapted Kelsen's illustration of a gunman demanding money from a bank:-

The gunman commands the clerk to hand over the money. The gunman backs up this command with the threat that if he does not do so he will be shot. The clerk feels obliged to hand over the money.


It follows therefore that law cannot simply be made up of commands


For Hart we distinguish laws from other commands by viewing law as a union of primary and secondary rules. Laws consist largely of primary rules. 


All societies develop rules

Hart concluded that there are some essential primary rules.

In "The Concept of Law” Hart says the reason for primary rules is our knowledge of certain self-evident truths.

Primary Rules

Such truths, says Hart, are the minimum necessary that any society will recognise.

  1. We know we are all vulnerable to attack from others. Human beings are vulnerable to bodily attack and need protection. No man alone can dominate others for more than a short period - he must stop to sleep, and then he in his turn needs to be protected.

  2. We all have approximately equal physical and intellectual powers. Men are not infinitely wise or strong-minded, and sanctions are needed to ensure that those who comply voluntarily with the rules are not sacrificed to those who do not.

  3. We all have limited concern for others and limited will power. Men are neither devils nor angels; they act largely from self-interest but generally care for the interests of others close to them.

  4. Finally, we know that we live in a world of limited resources. The basic needs of life - food, clothes, shelter etc - are scarce and require some effort to obtain: this requires rules to protect rights of ownership and to allow ownership to be transferred.


Hart appears not to include rules that limit sexual impulses or rules imposing duties on parents to care for their children, and on younger people to care for the elderly.


Secondary rules

Just because society is governed by rules, does not mean that it has a legal system.


Some small-scale primitive societies have rules based only on informal custom.


The customs will be well known by everyone, when disputes do occur they will be resolved by group discussion and conciliation.


Changing the rules occurs as the pace of change demands.

More developed societies will require more complex rules to deal with the economic, social and political complexities that inevitably follow. The simple societies have a cohesion bonded by the simple rules this is lost as societies become more complex.


Hart describes these three types of rule as:

  • Recognition. To avoid uncertainty, the complex societies develop rules of conduct, which are recognised, particularly by the officials.

  • Change.  These rules will lay down who can change the rules.

  • Adjudication. Rules of adjudication, defining the procedures to resolve dispute will be developed. This may lead to a court system


He calls these Secondary rules to distinguish them from the primary rules.


He says that this 'union of primary and secondary rules is at the centre of a legal system.'

Some jurists believe the real test of whether a legal system exists is simply the institution of a court.


Rules and principles

Another theory, called purposive adjudication, defended by Dworkin ("Law’s Empire", 1986), holds that law is not, as Hart says, merely a set of rules, but of rules as well as underlying principles, and judges should appeal to these principles - to the spirit or purpose of the law - not just narrowly to the letter of the law. This is different from appealing to a natural moral order, which is entirely subjective, principles are often objective.


Dworkin uses as an example the legal rule that the last will and testament of the deceased should be respected is modified by the principle that no one should profit from his or her own wrong.
Dworkin proposes a scenario of a son who murders his father, he will not benefit from his father's will because of the legal principle that he should not profit from his own wrong, despite the legal rule that he should inherit in line with the terms of his father's will ("Taking Rights Seriously", 1977).


Law is a necessary evil to resolve disputes

It is certainly true that law plays a less important role in some societies than it does in England: in China and Japan, for example, law is seen as a last resort and disputes are resolved partly by reference to tradition and partly by a process of conciliation.

Even here, however, most scholars see law as a necessary evil: St Augustine (Algerian Christian philosopher, born 345) said it was a natural necessity to curb man's sinful nature.  Secular scholars also tend to agree on the need for law to respond to human nature.


The American realists

Karl Llewellyn identified five "law jobs" 

Law in any community serves to

  • Prevent disruptive conflicts within the community. Law helps maintain a peaceful, orderly society, and contribute to this stability by providing a means of resolving disputes.

  • Resolve disputes between members of the community.  Property law facilitates business activities, while laws limiting the powers of government help ensure some individual freedom.

  • Accommodate changes in the circumstances of the community and its members.  Law can also be a means of accomplishing social change, as for example in the prohibition of racial discrimination on the one hand and the establishment of national health and social security systems on the other.

  • Recognise the authority structure of the community, and

  • Establish procedural rules for performing other tasks  


Oliver Wendell Holmes wrote in The Common Law (1881) that the life of the law is not logic but experience, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”;


Roscoe Pound (American jurist born 1870) named the informal practices of legal institutions “the law-in-action,” contrasting it to “the law-in-the-books,” by which he meant formally enacted legal doctrine.


A functionalist approach

Would see the law as characterising the values and principles of society and maintaining these values by securing compliance.   The law is symbolic, and expresses wrong by providing a remedy for those who feel they are victims of wrongdoing. By providing a deterrent, compliance can be assured, at least among ‘...some of the population, some of the time, in some circumstances...’  (Walker ‘The Some Theory’)

Hart said in “The Concept of Law” ‘Law is the means by which we articulate displeasure at anti-social conduct.’


The function and role of law are defined at a particular point in history

For example Albert Venn Dicey (English academic born 1835) writing in 1885, claimed the law at that time operated a formal equality at the expense of a substantive quality.  The law was blind to the differences of wealth or power and assumed all possessed abstract rights and duties.  


FA von Hayek (Austrian economist born 1899) thought the law should apply to all and benefit none in particular. Hayek regretted the role of the law (in 1944) to be what he saw as supporting an interventionist state replacing a free-market economy.   The law provided a legal framework for a particular form of economic activity.


Is the role of law to protect the subjects from an encroaching modern state?  

Margaret Thatcher (British prime minister born 1925) advocated the ‘rolling back of the state’ where individuals were responsible for their actions and welfare.   


EP Thompson (English Marxist historian born 1924) was critical of what has in fact been the increasing role of the law in the lives of individual subjects in a way that has undermined civil liberties while following its own concept of public interest.  


Matrix Churchill

Subsequent to Thompson’s writing there have been a number of high profile cases of civil liberties being ridden over to support the state’s interest, for example the Matrix Churchill trial.


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