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The Concept of Law: Exploring
Different Perspectives
The Concept of Law
Problems about the Concept of Law
It is more difficult to lay down a concept of law than for any other concept of science, such as chemistry or medicine. There are two main reasons for this difficulty:
Law is Multidimensional : Law can be studied from different points of view, leading to many non-identical conclusions.
1.1. Normative Dimension of Law (Law as Norms) : Law is a set of norms/rules that prescribe actions as compulsory (obligation), forbidden (prohibition), and permitted (permission). This is the main field of Legal Theory. From this dimension, we are led to:
1.1.1. Distinguish what are the valid rules of the system. 1.1.2. Distinguish Law from other normative systems (such as moral and social treatment rules). 1.1.3. Inquire about the will (authority) that passes those rules we call Law. 1.1.4. Analyze the structural features of both the isolated legal norm-rule and the legal system as a whole. 1.1.5. Explain how law is created, applied, and interpreted by the competent authorities.
1.2. Factual Dimension of Law (Law as Facts) : Law is a common characteristic of every society, which controls and organizes it through different means in order to achieve the goals considered as relevant by the will that creates law. Legal Sociology considers Law as a social fact, analyzing the functions of law in society and the relation between law and social change.
1.3. Valorative Dimension of Law (Law as Values) : Law is the result of certain ideologies (values); there is a connection of law with morality-ethics- Justice.
Different Concepts Defining Law : There are different concepts defining law in a variety of ways. Thus, we can talk about three main "schools" or "general approaches" to law: Legal Positivism, Natural Law theory, and Legal Realism.
Despite these difficulties, we can try to emphasize only the main features of Law that would be common to the different "schools" mentioned above:
a) Law surrounds us everywhere and always, regulating every aspect of our lives. Law is a specific form of social organization. b) Law is a normative system that states human actions as compulsory, forbidden, or permitted in a specific way, using force and other devices to achieve certain goals. Law is
the product of a certain will (usually the political power) with its own system of values; That's why we say that no law is neutral.
Validity, Efficacy, and Justice
There are two types of linguistic statements:
a) Descriptive statements: used to describe reality ("it is") (False/True) (Statements the other scientists use). E.g., "The blackboard is blue" -> True. b) Prescriptive statements: used to prescribe human actions: orders ("ought to be") (False/Truth canon is not applicable).
Initially, at least, we can identify legal norms-rules with this last sort of statements. Since the False/Truth canon is not available to them, 3 main criteria are available in order to study legal norms-rules: validity, efficacy (effectiveness), and justice.
Validity
When we say that a certain rule is valid in Spanish law, we are saying that this rule is part of the Spanish legal system. Thus, we can know that the action prescribed in the rule is binding and predict that it will be supported by the power's coercion machinery that created that rule. (If we don't follow the law, we will be punished)
Validity demands the observance of a set of formal and material requirements (Validity criteria):
Formal requirements: The legal norms-rules have to be passed by a competent authority (in Spain, the Parliament) and following the appropriate proceedings, both of which will be found in the higher norms-rules: this is what is called "chain of validity". (In Spain, the Constitution is the highest law, followed by the Laws of Parliament, the Ministry Orders, etc.)
Material requirements: The legal norms-rules cannot have been abrogated* [to repeal a law or right / "derogar"] by a later norm-rule (due to the hierarchy principle, a legal norm-rule may only abrogate norms-rules of the same or inferior rank). The legal norms-rules cannot contradict higher norms-rules. (The declaration that a certain legal norm-rule contradicts higher norms-rules needs to be produced, as well, by a competent authority and through the appropriate proceeding. In the meantime, both norms-rules may be supported by the state's coercive machinery though the lower norm- rule may not be valid. Thus, invalid legal norms-rules can exist and be in force in the legal system for a while.)
Efficacy
Legal norms-rules are effective:
a) When individuals obey what is prescribed in these norms-rules. (The speed limit is a valid law, but it is not always 100% effective, because sometimes it is disobeyed by individuals. We could say the speed limit has a
unjust legal norms-rules f) Invalid, uneffective, and just legal norms- rules g) Invalid, effective, and unjust legal norms-rules h) Invalid, effective, and just legal norms-rules
The whole legal system: At this level, validity and efficacy coincide. If a legal system is not effective (obeyed), it will not be able to achieve its functions (mainly social control and organization) and be, therefore, effective. It will eventually be replaced by a different legal system, ending its existence (example: the "favelas" in Brasil; or the territories controlled by the RAFC in Colombia).
The Relations among Validity, Efficacy, and Justice
Though validity, efficacy, and justice of legal norms-rules are 3 independent concepts, this is not to say there is no relation among them:
Validity and efficacy: the support of the coercive [relating to or using force or threats] machinery of the state of valid legal norms-rules is one of the main reasons that individuals have to obey law. (A law is effective (obeyed) sometimes because of the fear of punishment, enforced when a valid law is disobeyed). Efficacy and justice: another reason why a law is obeyed (it is effective) is that the individual also considers it just. Validity and justice: every democratic legal system includes in their higher norms-rules some contents of justice. As this is true, the lower norms-rules will be invalid if their content contradicts that stated in the higher ones. (Connection between law and moral) Usually, the upper rules already include some moral values (like the Spanish Constitution, which states that Spain is a democratic system that enforces the principles of democratic justice, human dignity, etc), the lower rules need to comply with the upper rules (and with their moral values, consequently) to be valid.
Conceptions of Law and the Different Ways to Understand
the Relation between Validity, Efficacy, and Justice
Natural Law Theory
Natural Law theory is the general label that includes several different ways of considering law that nowadays are regarded as the traditional approach to law. (N.L. theory has been the main conception of Law since the ancient Greeks all the way to the 19th century).
Though this general label gathers many different positions, Natural Law theory can be defined generally as the position that defends these two main assumptions:
A cognitivist position (in the field of ethics) A dualist position (in legal theory), which defends the existence of two different laws: a) Natural Law (the true moral principles) b) Human- made Law also called Positive Law (ius positum).
Regarding the field of ethics, we may distinguish three main fields of ethics:
Descriptive ethics (or ethical sociology): scholars study the different moral principles that can be observed in (that guide) different societies or communities. Descriptive ethics do not exclude cognitivism: we can admit there are different moral systems in different places, but that they are false if they do not coincide with the true moral principles. Normative ethics: scholars study what are the main moral principles that should guide a society or community. Meta-ethics: discussion about the possibility or impossibility of talking about correction-truth in the field of ethics, for example, in the moral discourse.
Natural Law Theory assumes a cognitivist position in the field of meta- ethics. In meta-ethics, 2 main positions may be distinguished:
Cognitivism defends the existence of true-correct universal moral principles ("principles of justice") that are valid everywhere and every time (moral objectivism) and the possibility to know them through human reason. These moral principles are named Natural Law.
As these moral principles can be known through human reason, there's considered to be 2 ways of coming to know them: - Naturalism: through the observation of nature. (e.g., when the Church says that "abortion" or "homosexuality" is against nature, is morally wrong). - Intuitionism: through our intuition as human beings.
Non-cognitivism defends that there are only 2 methods that allow the existence of correction or truth, which are those applied by science (deductive-inductive and empirical). As these methods are not applicable to moral discourse, there is no possibility of talking about correction or truth in the field of ethics. Moral discourse is always relative: there is no truth or correction in it. Even if there were a moral truth, we couldn't come to know it, and therefore, taking about it makes no sense.
Natural Law theory defends cognitivism, but not everyone defending a cognitivist position in the field of meta-ethics defends necessarily the existence of Natural Law.
Natural Law Theory
Principles of Natural Law Theory
According to Natural Law theory, there are two different types of law:
a) Natural Law : These are the objective moral principles that are legally valid due to their moral merits, as they are considered morally correct and just.
b) Human-made Law or Positive Law (ius positum): This refers to the laws created by human societies.
Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it varies from the text by which we regulate our approbation and disapprobation."
According to Legal Positivism, there is no necessary connection between law and morals/justice: validity and justice are conceptually independent. When analyzing a concrete legal rule, its validity depends on the satisfaction of certain formal and material requirements, not on its justice. When analyzing the legal system as a whole, there is a connection between validity and efficacy, as a system that is not effective will be replaced by a different one capable of achieving the function of social control and social organization.
Descriptive Concept of Law
Legal Positivism uses a descriptive concept of law, focusing on the factual dimension of what is considered law in each society and community (social facts). This descriptive conception of law, according to many positivist scholars, may be even more prepared to fight against legal injustice than Natural Law theory.
Defining validity from a positivist point of view (appropriate procedure, not in contradiction with superior rules, and not abrogated by a later rule of at least the same rank) only tells us that the rule is supported by the coercive machinery of the state, but nothing about its justice or injustice. Therefore, when we say that a rule is valid, we are not saying anything about the moral obligation to obey it.
Connections between Law and Morals
Although Legal Positivism asserts the conceptual separation between law and morals, it does not deny the existence of multiple connections between these two dimensions:
Every legal system reflects certain ideological and ethical options, which are usually included in the upper steps of the legal system, such as constitutional texts. However, these moral principles determine the validity of inferior rules due to their legal nature, not because of their moral correctness.
Following Lon Fuller, every modern legal system has a set of structural requirements (the "morality of law") that make it impossible for a legal system to reach extremely unjust (unfair) consequences, fulfilling what can be called "formal justice." These requirements include generality, public promulgation, prospectivity, understandability, non- contradiction, stability, and congruent application.
These connections between law and morals can be defended from a positivist position and are compatible with the assertion of the conceptual independence between law and morals. What positivism denies is the necessary relation between a concrete morality (considered as the "Right One") and the validity of the law.
Legal Realism
Legal Realism is a conception or school of law that was more influential in the United States during the 20th century. According to this view, law should be defined as the standards enforced by courts. Legal Realism reduces validity to efficacy, asserting that authentic legal norms or rules are those that are applied by judges. If a law is not enforced by the courts/judges, it is not considered valid.
