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What is “law”?
The common understanding of law is that it consists of rules and regulations established and enforced by a governing body or social or communal group. For example, in the United States, the governing bodies empowered to pass laws are a combination of federal, state, and local governments. In some communities, a religious group or group of elders has the authority to make rules for the community.
While the above definition is generally accurate, it is important to understand the source or genesis of societal law.
The Genesis of Societal Law
Numerous theories exist for the creation of and adherence to laws. Below are some of the most commonly recognized.
- Sociological Law – Laws are also commonly understood as manifestations of societal norms or beliefs. If society believes that certain rights or procedures should be in place, the rule-makers act to bring about a rule effectuating that societal norm in pursuit of the orderly administration of that society. This legal philosophy sees law as an ever-evolving embodiment of society’s beliefs. Particularly, it focuses on the interaction between law and societal norms. Law has evolved over time in relation to the influences on society, such as cultural, social, political, and economic factors. In turn, this philosophy recognizes that law and social interaction develop in concert and influence each other. As such, law is only partially distinct from these influences.
- Historical Law – This view recognizes law as the embodiment of human cultures and traditions. Like natural law, it focuses on the influence of nature, logic, ethics, and religion on the law. It focuses on a historical understanding of right and wrong in society.
- Legal Positivism – This theory posits that laws are commands handed down by a recognized authority. They are followed out of habit and fear of sanctions by the state for failure to do so. It does not propose that laws are necessarily just or unjust. It does not look at the natural existence of standards leading to law; rather, it focuses on the objectives outlined by the governing body. Rather than occurring naturally, law and the rights resulting therefrom are the results of human insistence.
- Natural Law – This theory proposes that laws arise from nature. It is objective and applies universally – independent of human understanding. Thus, the law is not developed by the people; rather, it derives from the common understanding and actions of individuals based upon moral rules of nature or divine inspiration. relies on reason drawn from perceived universal moral principles in order to explain laws. It assumes that some values or beliefs are universal due to a common human nature and the ability to reason. Natural law theorists often cite the Declaration of Independence (stating “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”), to support the Founders’ belief in natural law.
- Legal Realism – This theory proposes that all aspects of law should be examined scientifically to be understood. It stands in opposition to theories of natural law – stating that they are a result of psychological characteristics and social phenomena. The existence of law can be understood by empirical, scientific evaluation. It goes behind the legal principle to look at what the administrators of law do or are thinking as they carry out their roles. It posits that laws (particularly common law) are subjective. The development of law is based upon the predilections of state and federal lawmakers and judges. As such, legal reasoning is not separate from the ethical, moral, social, and political beliefs of those charged with making and interpreting the law.
The above examples of legal philosophy are commonly recognized examples of the theoretical underpinnings of legal reasoning. Individuals may employ or be influenced by any of these philosophical approaches when confronted with any type of law. The understanding of the law is subject to varying definitions, interpretations of its genesis, the justness of its existence, a individual’s duties to adhere, and manners of enforcement, etc.
- Discussion: Ask yourself, what is the legislature’s purpose and beliefs that drove/drive the drafting of the relevant law? Further, what judicial philosophy does an appellate judge employ when interpreting statutes (developing the common law)?
- Legislation is the process through which the law-making body prepares and enacts laws through its law-making process. The individual members of the legislature are concerned with supporting the values, judgments, and purposes of their constituents. It may also be driven by their experience in a certain field or from the conviction that an idea is appropriate or in the best interest of society. On the other hand, an appellate judge’s main function in the judicial system is to interpret laws and statutory provisions. Appellate judges have different judicial philosophies in the interpretation of the law and in the process of determining its meaning and the intent of the legislators who wrote the law.
What is “jurisprudence”?
Jurisprudence generally refers to the ideas or philosophies of law that have developed. Understanding the philosophy behind the existence of law is important for understanding: 1) the justification for legislation, and 2) the judicial reasoning applied when interpreting laws.
- Note: In Old England, legislators passed laws under the supervision of the King. Individuals unable to obtain an adequate remedy at law could petition the King directly for justice. This was known as a court of “equity” or “in chancery”. The King would order an outcome that was fair in light of the absence of a legal remedy. The King was said to act in equity. Equity or the power to do equity still exists in courts today. It exists independently but works in concert with the law to deliver justice.
Discussion: Individuals living in certain parts of the country may be familiar with laws prohibiting the purchase of alcohol on certain days of the year. In the southeastern region of the United States, many local governments prohibit the purchase of alcohol on Sundays. These laws, commonly known as “blue laws”, reflect the local community’s sentiment regarding the sale of a controversial item on a day that is sacred to Christians. Many of these communities have members with religious beliefs other than Christianity (e.g., Judaism, Islam, Buddhism, Hinduism, Universalism, etc.). Nonetheless, the dominant community belief results in a societal norm or belief that becomes law through the actions of the representative government. Take a moment to think about other laws that are a reflection of societal norms. For example, think of the things individuals do every day, such as driving, purchasing property, getting married, entering into contracts. For a more in-depth discussion, ask yourself why do states regulate the trade of securities on public markets?
- In most cases, markets lack the conditions of perfect competition. This makes it extremely important to regulate the securities market. The securities market brings together stakeholders that play a major role on the economy if a country and if their interests aren’t protected they might avoid participating in the securities market. This market also provides a lot of revenue for the government and corporate organizations. The law is important in maintaining order in our daily activities and inhibiting malicious actions by people who don’t value the people’s interests. Thanks to the regulations on the securities market, it has grown to be one of the most important aspects of the economy in the United States and worldwide. The SEC, (US Securities Exchange Commission), is in charge of making sure the markets work efficiently while FINRA (Financial Industry Regulatory Authority ) regulates stock and brokerage firms.
Academic Research on What is Law
- Marmor, Andrei, What Is Law and What Counts as Law? The Separation Thesis in Context (August 1, 2017). Cornell Legal Studies Research Paper No. 17-34. Available at SSRN: https://ssrn.com/abstract=3011432 . Focuses legal positivist tradition in legal philosophy and that legal validity of norms depends only on their sources, not on considerations of merit or value. The purpose of the work is to show how a proper construal of the separation thesis, in the context of legal positivism’s reductionist ambition, goes a long way in supporting its truth.
- Prado, Mariana Mota, What is Law and Development? (October 1, 2010). Revista Argentina de Teoria Juridica, Vol. 11, No. 1, 2010. Available at SSRN: https://ssrn.com/abstract=1907298. This work addresses the state of the field of “Law and Development”.
- Tamanaha, Brian Z., What Is Law? (October 14, 2016). Washington University in St. Louis Legal Studies Research Paper No. 15-01-01. Available at SSRN: https://ssrn.com/abstract=2546370 or http://dx.doi.org/10.2139/ssrn.2546370. This work focuses on several categories or concepts of law.
- Hadfield, Gillian K. and Weingast, Barry R., What is Law? A Coordination Account of the Characteristics of Legal Order (September 2012). The Journal of Legal Analysis, Vol 4. Available at SSRN: https://ssrn.com/abstract=1707083. This article addresses the concept of legal order.
- Adeleye, Peace, What Is Law? A Critical Appraisal of the Central Problem in Legal Philosophy (September 9, 2017). Available at SSRN: https://ssrn.com/abstract=3034747. This work addresses some major concerns with one’s legal philosophy.
- Svantesson, Dan, What is ‘Law’, If ‘The Law’ is Not Something that ‘Is’? A Modest Contribution to a Major Question (June 8, 2011). Available at SSRN: https://ssrn.com/abstract=1859719 or http://dx.doi.org/10.2139/ssrn.1859719. This article addresses the difficulty or impossibility of defining law. It focuses on the need for lawmakers to be transparent about their biases in the lawmaking process.
- Enoch, David, Is General Jurisprudence Interesting? (May 1, 2015). Available at SSRN: https://ssrn.com/abstract=2601537 or http://dx.doi.org/10.2139/ssrn.2601537.
- D’Amato, Anthony, The Relation of Theories of Jurisprudence to International Politics and Law (January 12, 2011). Washington and Lee Law Review, Vol. 27, 1970; Northwestern Public Law Research Paper No. 10-91. Available at SSRN: https://ssrn.com/abstract=1739318.
- Reed, Chris, Why Judges Need Jurisprudence in Cyberspace (October 17, 2016). Queen Mary School of Law Legal Studies Research Paper No. 244/2016. Available at SSRN: https://ssrn.com/abstract=2853489.
- Kamp, Allen R., Jurisprudence: A Beginner’s Simple and Practical Guide Advanced and Complex Legal Theory (June 26, 2017). Available at SSRN: https://ssrn.com/abstract=2992893 or http://dx.doi.org/10.2139/ssrn.2992893.
- Cotterrell, Roger, Why Jurisprudence Is Not Legal Philosophy (January 24, 2014). Jurisprudence, Vol. 5, No. 1, 2014, pp. 41-55; Queen Mary School of Law Legal Studies Research Paper No. 169/2014. Available at SSRN: https://ssrn.com/abstract=2384615.
- Acharya, Suman, Jurisprudence of Law and Society (March 14, 2019). Available at SSRN: https://ssrn.com/abstract=3352664 or http://dx.doi.org/10.2139/ssrn.3352664.
- Vohra, Ritika, Scope of Jurisprudence (Spetember 11, 2014). Available at SSRN: https://ssrn.com/abstract=2586399 or http://dx.doi.org/10.2139/ssrn.2586399. Jurisprudence comes from the Latin word ‘jurisprudentia’ which means the knowledge of law. The earliest definition of this term was provided by Bentham and Austin. The scope of jurisprudence has widened manifold since then and now it encompasses the entire gamut of law, not just positive laws. It is the study of the fundamental principles of law. The creativity of the judiciary in interpreting the law to serve social welfare ends of the State has also contributed in significantly expanding the scope of jurisprudence.