Many people in our society would most likely define law as a set of rules or regulations designed to govern and control our society. For example, criminal law is widely seen as rules which stop us from carrying out particular activities, although many people see differently to this view. Throughout this essay I will be focusing on the work of other people and giving their views on the definitions of law as well as my own. To help me with this question and have a better understanding of it I will first need to consider the definitions of 'Rules' and 'Law'.
A rule is "a regulation or principle governing conduct or procedure within a particular sphere. " (oxford dictionary) "A general norm mandating or guiding conduct or action in a given type of situation" (Twining & Miers 1999). Rules not only give indications of what activities you can and cannot perform but also indicates which activities should be carried out in a specific way, so as a result, it is said to be normative. Normative rules are seen to be the standards of behaviour which we should to obey.
All rules such as legal, moral or customary are referred to as normative. Law from oxford English dictionary is defined as: 1) A rule established among a community by authority or custom 2) A body of such rules 3) Their controlling influence, their operation as providing a remedy against wrongs, law and order. 4) The subject or study of such rules 5) (Informal) the police 6) Something that must be obeyed 7) A factual statement of what always happens in certain circumstances
The English dictionary gives us many definitions of law, so perhaps there is not a single idea or definition of law but perhaps a complex collection of ideas. Many people have argued for and against law as simply being a set of rules and regulations. The term law leads us to explore the idea of positivism as an approach to understanding law. Positivism offers us a definition of law stating that "any law which satisfies the appropriate technical criteria of enactment counts as law" (Stychin 1999)
A positivist believes a rule holds strength if it has been passed in accordance with the official requests laid down by our legal system, i. e. , whatever bill has been passed in the UK by the queen in Parliament is law. However, Lon L. Fuller offers us a definition that a legal positivist should accept, "Law is the enterprise of subjecting of human behaviour to the governance of norms", (Firstthings). Joseph Fletcher sees the positivism view as a problem because of the absence of reference to its moral quality.
Conversely, an anti-positivist (natural law supporter), argues positive law must be monitored against some standard found outside the legal system to count as a valid law. Lawyers, non-lawyers and law students, would probably centre on the work of the courts to discover the answer to the question 'What is law', as lawyers are likely to make a relationship between the law, legal process, the rules of law and the courts. "A modern lawyer would find it impossible to conceive a legal system which contained rules of law but no courts.
In fact, he would probably find it less difficult to imagine a society which contained courts but no rules" (Atiyah 1995) Carl F Stychin claims that law is recognized as a collection of rules or regulations where punishments and sanctions are contained, which are applied in our society by political institutions such as the government. Keenan goes on to give us a distinction between the types of rules of Law. Keenan argues that there are two types of Law, private and public law. Private law deals with the legal relationships of people in their day to day transactions.
"It deals with the legal position of corporate bodies and associations of persons, the first of which are given a special form of legal personality"(Keenan 2001). Private law includes contract, law of tort, commercial law, family law, trusts and the law of property which includes careful thought of the rights of how property can be transferred from one person to another. Public law differs from private law as it is not only concerned with the constitution but also with the functions of the different kinds of government organisations.
It is concerned with crime, which engages itself in the states relationship with power of control over the individual. Civil and criminal law are two sub-divisions which can be made within public law. Although some have seen law as a set of rules and regulations (as seen above), others have viewed law from a slightly different perspective. It can be seen that peoples understanding of law as a 'systems of rules' is insufficient on its own to be an explanation of law because there are various 'systems of rules' apart from law. For example, how would we differentiate between moral and legal rules?
We consider it morally wrong in our society to tell lies although it is not against the law to do so. Yet again, how do we differentiate between legal rules and rules of custom? For example, "What is the difference between a judge's ordering a convicted person to pay a fine for breaking a criminal law rule and a fathers ordering his son to forfeit his pocket money for disobeying him" (Harris 2002). There are obviously some differences between these kinds of rule but it is not clear where these differences lie. The only reason these rules are similar are because if their normatives.
"The divine origin of law becomes a secular sovereign, the state or even the will of the people, but as a source of law it retains its quality as an external and absolute justification for legal regulation, discipline and law" (Goodrich 1986) Goodrich put forward this peripheral legitimation of legal order which changes the wide range of significant rules into a 'system of rules'. John Austin defines law as the command of a ruler or leader in a society, (i. e. king/elected officials) and in the event of disobedience to these commands, punishments or sanctions are to be applied.
This definition cannot possibly be correct as it contains a problem. The law lays down conditions behind certain activities and actions performed by us but does not 'command' us to do anything. It is our own free will to follow those 'commands' laid down. John Locke 1690 claims "Law in its proper notion is the direction of a free and intelligent agent to his proper interest". (Bluepete). I agree with the statement Locke has given as I believe that everyone is a free and intelligent human being and we will obey and follow the law simply because we are scared of breaking the rules and being punished for disobeying them.
Some see law as ideology made up of political, economic, moral and social values. However the ideology in our legal system may only reflect the beliefs and interests of some people, for example the Marxist theory would claim that only the will of the ruling class is within our legal system. Some writers have considered law as if it was a closed system functioning within its own logical framework and is separated in some ways from the broader social perspective. Explanations of law offered by other writers takes a central issue of various functions of which law is supposed to perform in society.