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What is law?

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Explaining the terms “Law” and “Morality” or "Justice".

When discussing law and morality or law and justice, it is important to define the terms, from the below you will probably decide it is not possible to define what law IS, but it is possible to describe what it does and what rules apply. This is essentially a philosophical question, which probably has no answer, but some theorists have attempted to do so.

 

Similarly, there is no agreement what morality IS, or justice IS and there are various “schools” of thought.

 

We shall be looking at the writings and thoughts of philosophers and jurists (legal scholars) each named person should be considered as an authority in his field whose opinions are worthy of respect.

What is “Law”?

It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behaviour of its members, so Law is a formal mechanism of social control.

Legal systems are particular ways of establishing and maintaining social order.

 

Definition of law - Legal Positivism

John Austin (English jurist born 1790)

"Province of Jurisprudence Determined"

"A rule laid down for the guidance of an intelligent being by an intelligent being having power over him."
 

 

"A body of rules fixed and enforced by a sovereign political authority."

Professor Hart

(Oxford Professor of jurisprudence, born 1907)

"The Concept of Law" (1961)

Hart defined law as a system of rules, a union of primary and secondary rules,

Definition of law - Marxist theory

 

Marxist theories of law generally define law as a tool of oppression used by capitalists to control the proletariat.
 

Definition of law - Natural Law.

Plato (Greek philosopher born 427 BC)

Aristotle (Greek philosopher born 304 BC)

“An embodiment of Reason”, whether in the individual or the community’.

St Thomas Aquinas (Italian philosopher born 1224)

"Summa Theologiae (Summary of Theology)", Question 90, Art. 4

"Nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated"

Definition of law - Legal Realism

Oliver Wendell Holmes (American judge and jurist born 1841)

"The Path of the Law" in Collected Papers, 1920

"The prophecies of what the courts will do ... are what I mean by the law,"

The Jurist and Associate Justice of the United States Supreme Court, Oliver Wendell Holmes Jr., was born in 1841.  Oliver W. Holmes Jr. died in 1935. For information, Oliver Wendell Holmes Sr. (a Physician and Author) was born in 1809 and died in 1894.

Karl Llewellyn

(American legal scholar born 1893)

"The Bramble Bush" 1951

"What officials do about disputes,"

Lord Browne-Wilkinson (Senior Law Lord born 1930)

"‘The sum of the influences that determine decisions in courts of justice."

Other definitions

Definition of Law -  Max Weber

(German Sociologist born 1954)

"Law…exist if it is externally guaranteed by the probability of coercion (physical or psychological) to bring about conformity or avenge violation, and is applied by a staff of people holding themselves specially ready for that purpose."

Definition of law - Thomas Hobbes

(English philosopher born 1588)

Hobbes said of the role and function of law in his polemic work ‘Leviathan’ (1651)

"Law is the formal glue that holds fundamentally disorganised societies together."

Definition of law  - Glanville Williams “Learning the law”

"Law is the cement of society and also an essential medium of change. Knowledge of law increases one’s understanding of public affairs. Its study promotes accuracy of expression, facility in argument and skill in interpreting the written word, as well as some understanding of social values".

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