An analysis of the concept of law is not a description of what the law is. Do you agree?

0326110

To begin a discourse upon the above statement, a definition of the critical words analysis and description must first be ascertained in order to clarify the question. Analysis refers to “resolve or separate a thing in to the elements or component parts” while description conveys the act of “giving an account of”. The significant disparity between these definitions enables a systematic and logical argument to be propagated.

An analysis of the concept of law begs the examination of the component parts of a concept and their relationship with law. It does not claim that the word 'law' must be in itself defined. The definition of law may be expected to provide a rule or rules for the use of the term “law” which would negate Vinogradoff’s assertion that “(jurisprudence is) a moral science, to be understood and reasoned about from the inside”. Indeed, The Concept Of Law by Hart, does not explain, nor does it aim to explain the meaning of the word “law”. It has nothing to say about divine law, mathematical or logical laws, laws of nature, nor many others. “Law” is not ambiguous, and The Concept of Law does not explain one of its meanings. When used in legal contexts “law” bears the same meaning as in other contexts which suggests that a definitive term is unnecessary for this essay. Those who offer explanations of the concept of law usually do mean, as Hart did, to explain the nature of a familiar social institution. The concept of law, therefore, cannot be manifestly defined. It can be elucidated, but only as a social phenomenon. Concepts, as objects of philosophical study, as the target of conceptual analysis or elucidation, are a philosophical creation.

As a result, the nature of an institution understood by our concept of law makes the inquiry parochial rather than universal. There is no one concept of law, and to refer to the concept of law is to mean the concept relevant to our society. Our possession of the concept is logically independent of the fact that we live in a political community governed by law. However, Dworkin’s theory of law assumes that an awareness of the concept of law is necessary for the existence of law in any society; that the concept of law is part of the practice of law. Therefore, to the extent that the inquiry is limited to the nature of law as understood in accordance with our concept of, it is a parochial study of an aspect of our culture rather than a universal study of the nature of law as such. While the concept of law is parochial however, an investigation into it is universal in that it explores the nature of law,

As the Oxford English Dictionary explains, the nature of a thing consists of: “the essential qualities… giving it its fundamental character”. Following on from this, explaining a concept is close to explaining the nature of what it is a concept. The explanation of the nature of law is the primary task of the theory of law. Explaining the nature of law is to explain how people perceive the law- it is to almost describe the function. Understanding the theory consists of necessary truths for only necessary truths about the law reveal the nature of the law. However, with the many differing perceptions upon legal theory, for example Finnis, “the positivist who refutes these claims (that natural law does not necessitate a belief in morality) does not deny the true doctrine of natural law” contradicts the notion of necessary truths. This statement would then logically necessitate that the “true” doctrine of natural law for positivists must, in its very essence be a different “true” doctrine of natural law for the naturalists as the fundamental premise for the argument has been expunged. A difficulty is then exposed through the difference in the concept of truth and belief which surely must be of vital importance when discussing the concept and exposition of law and justice.

This is a preview of the whole essay

Another difficulty then emerges within the analysis as the nature of law should encompass universal characteristics to be found in law wherever and whenever it exists. The properties are universal properties of the law not accidentally, and not because of any prevailing economic or social circumstances, but because there is no law without them. It presupposes that law has an unchanging nature. However, the use of the term “nature” potentially obscures the fact that in reality the nature and thus concept, of law changes with time, and thus obstructs rather than helps the development of a theoretical or philosophical account of law. Conversely, if nature is used as a description of the contemporary, then the universal properties will be directly affected by circumstance as there can be, by the very essence of sociology, no “fundamental characteristic” in a fluid society. The latter interpretation may indeed assist in merging analysis and description by a shared “base” characteristic of fluidity which enables a direct link between the two.

This has been propagated by Finnis, for example, who attempts to overcome this by linking practicable reasonableness with theory. He appears to jump from the premise of a theoretical approach to a pedagogical conclusion with no logical progression of argument. He separates “the problems of justice and rights, of authority, law and obligation.” The separation of these principles is consistent with his distinct separation of a description of human law should be from natural law yet it the jump is clumsy and the separation not clear.

Finnis has been accused of offering “natural law without nature” meaning that he is forced to rely on claims that certain propositions in normative ethics are self evidently true. The idea of self-evidence is manifested through what Finnis terms “basic goods”. These are self evident in that they are not susceptible to proof thus they cannot be denied. I would argue against this proposition. That they “cannot be denied” means that they cannot truly be asserted either which makes the interpretation of his basic goods subjective. Subjectivity undermines the very idea of uniform self evidence as although each individual may become aware of each good, their experience of it will be radically different. That these goods bring a “sense of completeness” also begs the question of why one needs to feel complete for the application and theory of the nature of law to successfully develop as practical or human law.

That the foundation of many positivists’ theorems is comprised of humanism renders it sociological in its very essence. They are subjective human theorems which means that they are indeed validated by human interpretation and must therefore change as society is quintessentially fluid. However, if human interpretation is needed to validate a theory of law it follows logically that it is indeed a description of what the law is, or is to become. Validation would not occur unless promulgated by those who could render the concept legal. This, in its essence is an analysis of the concept of law as legal is merely a part of the description of law. As Hart believes in law being a social phenomenon, Finnis takes this further and states that human goods must be seen in the light of a community of human beings, as only in communal life are there the conditions for the pursuit of human goods. However, the meaning underpinning this part of the theory undermines the very essence of the goods as it suggests active pursuit is needed to achieve that which can only be “good” if governed by rules.

If law is rule-governed behaviour in the sense of being in accordance with explicitly formulated rules, then the role of that body which formulates the rules becomes central to the concept of law. With morals there is an ultimate emphasis on authenticity but in opposition is the law’s ultimate emphasis on conformity. This distinctive feature of law shows itself directly only with regard to duties. Austin draws an explicit distinction between 'laws' and 'particular commands': where a command, he says, 'obliges generally to acts or forbearances of a class, a command is a law or rule. Although the connection between law and morality is not an analytic one, it is not merely a contingent one either. Hart more or less concedes this in the case of a pre-legal regime, but claims that in a developed legal system it is much easier for the law to be out of line with morality. However, Dworkin cites Riggs v Palmer to deny Harts assertion by stating that it would be absurd to say that the judge applied a rule, yet not absurd to say that the judge applied the law. However, the New York Court of Appeals held that the rules were subject to override by the (equitable) principle that "No one should profit from their own wrong".

However, the use of morality in establishing normative law is a subordinate theorem. Lex injusta non est lex has been a principle, and a description, of natural law since common law and equity were separate concepts. For many centuries the Court of Equity sought to remedy legal iniquity, and judges avoid reaching unconscionable decisions because the law ought to be congruous with morality, being legally less good law if it were not. More recently, Hart conceded upon a point of law: ”This is law; but it is too iniquitous to be obeyed” suggesting law has, in its essence, a vague “morality” within its nature to be understood by those who it governs.

Natural law is primarily concerned with the idea that morality is the keystone in many legal arguments and law follows as a by-product. Rousseau states that law “is that holy imprescriptable law which speaks to the heart and reason of man” where it is up to individual conscience to decide upon justice as “conscience never deceives us”. Yet the idea of unjust is a human concept. Therefore can natural law, in prescribing the nature and thus the concept of law be pedagogical in terms of dictating a “morality” for humans to abide by in communities? It would assume that communities all have similar base principles governing their lives. If morality is then taken as a human concept in that life is based upon experience rather than innate feeling, it shows that morality is not decided on by a God but by new experience which leads to an emotionally conditioned response. Thus it can be logically concluded that morality is a series of conditioned responses that have been codified over time to form a concrete morality. Indeed, this is consistent with the concepts propounded by natural lawyers such as’ “ (it is) the first moral principle” to choose “ the possibilities which are compatible with integral human fulfilment”. No choice can bring overall fulfilment thus the principle of integral human fulfilment is a sociological ideal to guide society to legally “right” choices.

The changing nature of sociological morality and the notions which attempt to analyse the concept of legal repercussions hinder the description of law in that any attempted description must take into account the fluidity and subjectivity of social communities upon which the concept of law directly relates to. However, a description of the use of the law is in nature, for the positivist, as for the realist, irrespective of content and is legally binding unless set aside by another Court. The House of Lords ruled in Preddy that no offence under section 15(1) of the Theft Act, 1968 can be committed on the facts because a vital ingredient, "property of another" is missing. However, a decision of a court convicting someone prior to Preddy is not overturned by the ruling even if the normal effect of judicial decisions is both prospective and retrospective On this view the need for a decision, any decision, is more important than that the decision have a particular content, however congenial. This “decision” is typically a concise description of what the law has become. Yet the consequence of any decision has the potential to change what law is, both descriptively and conceptually.

However, an analysis of the concept of law can never fully be a description of what the law actually is. Questions about the function of law are central both in jurisprudence and in the sociology of law but they cannot be answered, definitively, if at all, a priori through conceptual debates An analysis of concept provides a conceptual framework for prescriptive law to operate in idealistically and can theoretically prescribe the nature of natural justice but the conceptual analysis of theory is becoming somewhat obsolete prescriptively. Any theoretical concept undermines the practicality of a principle that it may purport as without there being a pedagogical notion underpinning it the ideas constituting the theory are transient. I maintain however, that as discussed earlier within the body of the essay, this difficulty is becoming less pronounced. The concept and nature of law is becoming less retrospective and while an analysis separates into the elements, a description of law should work in symbiosis with this by providing an account of the elements which make up the constituents of legal practice. However, analysis of the concept of law and a description of what the law is can never fully be amalgamated until legal theorists accept that concept, and nature of law, need to be fluid and contemporary in order for it to be a description of what the law is.