The Nature of Law
There have been authors like Austin and Kantorowicz who have thought that it necessary to define law itself in order to be able to determine the province of jurisprudence – if jurisprudence analyses legal concepts, it is necessary to first analyse what law is. However, Salmond disagreed with this saying that it not necessary to define law since ‘law is no more a legal concept than geometry is a geometrical concept’.
This is how various scholars have defined law:
1. Holland: Law is a general rule of external human action enforced by a sovereign political authority.
2. MacIver and Page: Law is a body of rules which are recognised, interpreted and applied to a particular situation by the code of the State.
3. Pound: Law is social control by the systematic application of force by a politically organised society.
Courts do not speak of the definition of law itself; all that is necessary for them to function is for there to be a legal framework within which existing laws can be applied.
Nonetheless, the definition is law is not completely dispensable: for example, to differentiate between such things as de facto possession and de jure possession, one has to go back to the definition of law.
The question of whether any pattern of behaviour is governed by law or simply a convention, habit or norm may have less to do with legal considerations than socio-political considerations: laws are considered obligatory and to define a rule or any other behaviour as anything else is to strip it of much of its ‘prestige’.
This is how various scholars have defined law:
1. Holland: Law is a general rule of external human action enforced by a sovereign political authority.
2. MacIver and Page: Law is a body of rules which are recognised, interpreted and applied to a particular situation by the code of the State.
3. Pound: Law is social control by the systematic application of force by a politically organised society.
Courts do not speak of the definition of law itself; all that is necessary for them to function is for there to be a legal framework within which existing laws can be applied.
Nonetheless, the definition is law is not completely dispensable: for example, to differentiate between such things as de facto possession and de jure possession, one has to go back to the definition of law.
The question of whether any pattern of behaviour is governed by law or simply a convention, habit or norm may have less to do with legal considerations than socio-political considerations: laws are considered obligatory and to define a rule or any other behaviour as anything else is to strip it of much of its ‘prestige’.
Labels: Jurisprudence
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