Law is a set of rules that are created and enforced by governmental or societal institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the art of justice. State-enforced laws can be made by a legislature, resulting in statutes; by the executive through decrees and regulations; or by judges' decisions, which form precedent in common law jurisdictions. An autocrat may exercise those functions within their realm. The creation of laws themselves may be influenced by a constitution, written or tacit, and the rights encoded therein. The law shapes politics, economics, history, and society in various ways and also serves as a mediator of relations between people.
Legal systems vary between jurisdictions, with their differences analysed in comparative law. In civil law jurisdictions, a legislature or other central body codifies and consolidates the law. In common law systems, judges may make binding case law through precedent, although on occasion this may be overturned by a higher court or the legislature. Religious law is in use in some religious communities and states, and has historically influenced secular law.
The scope of law can be divided into two domains: public law concerns government and society, including constitutional law, administrative law, and criminal law; private law deals with legal disputes between parties in areas such as contracts, property, torts, delicts and commercial law. This distinction is stronger in civil law countries, particularly those with a separate system of administrative courts; by contrast, the public-private law divide is less pronounced in common law jurisdictions.
Law provides a source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice.
Etymology The word law, attested in Old English as , comes from the Old Norse word . The singular form meant while its plural meant .
Philosophy of law
The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what is law?"
Analytical jurisprudence
There have been several attempts to produce "a universally acceptable definition of law". In 1972, Baron Hampstead suggested that no such definition could be produced.Dennis Lloyd, Baron Lloyd of Hampstead. Introduction to Jurisprudence. Third Edition. Stevens & Sons. London. 1972. Second Impression. 1975. p. 39. McCoubrey and White said that the question "what is law?" has no simple answer. McCoubrey, Hilaire and White, Nigel D. Textbook on Jurisprudence. Second Edition. Blackstone Press Limited. 1996. . p. 2. Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, "early customary law" and "municipal law" were contexts where the word "law" had two different and irreconcilable meanings.Williams, Glanville. International Law and the Controversy Concerning the Meaning of the Word "Law". Revised version published in Laslett (Editor), Philosophy, Politics and Society (1956) p. 134 et seq. The original was published in (1945) 22 BYBIL 146. Thurman Arnold said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned. It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to cases").Baron Lloyd of Hampstead. Introduction to Jurisprudence. Third Edition. Stevens & Sons. London. 1972. Second Impression. 1975.
One definition is that law is a system of rules and guidelines enforced by social institutions to govern behaviour. In The Concept of Law, H. L. A. Hart argued that law is a "system of rules"; John Austin said law was "the command of a sovereign, backed by the threat of a sanction"; Ronald Dworkin describes law as an "interpretive concept" to achieve justice in his text titled Law's Empire; and Joseph Raz argues law is an "authority" to mediate people's interests. Oliver Wendell Holmes defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious."Holmes, Oliver Wendell. "The Path of Law" (1897) 10 Harvard Law Review 457 at 461. In his Treatise on Law, Thomas Aquinas argues that law is a rational ordering of things, which concern the common good, that is promulgated by whoever is charged with the care of the community.Aquinas, St Thomas. Summa Theologica. 1a2ae, 90.4. Translated by J G Dawson. Ed d'Entreves. (Basil Blackwell). Latin: "nihil est aliud qau edam rationis ordinatio ad bonum commune, ab eo qi curam communitatis habet, promulgata". This definition has both positivist and naturalist elements.McCoubrey, Hilaire and White, Nigel D. Textbook on Jurisprudence. Second Edition. Blackstone Press Limited. 1996. . p. 73.
Connection to morality and justice
Definitions of law often raise the question of the extent to which law incorporates morality. John Austin's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Natural lawyers, on the other hand, such as Jean-Jacques Rousseau, argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in connection with the notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas, notably his Treatise on Law.
Hugo Grotius, the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason.Fritz Berolzheimer, The World's Legal Philosophies, 115–116 Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature".Kant, Immanuel, Groundwork of the Metaphysics of Morals, 42 (par. 434) Jeremy Bentham and his student Austin, following David Hume, believed that this conflated the "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism; that real law is entirely separate from "morality". Kant was also criticised by Friedrich Nietzsche, who rejected the principle of equality, and believed that law emanates from the will to power, and cannot be labeled as "moral" or "immoral".Nietzsche, Zur Genealogie der Moral, Second Essay, 11Kazantzakis, Friedrich Nietzsche and the Philosophy of Law, 97–98Linarelli, Nietzsche in Law's Cathedral, 23–26
In 1934, the Austrian philosopher Hans Kelsen continued the positivist tradition in his book the Pure Theory of Law. Kelsen believed that although law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. While laws are positive "is" statements (e.g., the fine for reversing on a highway is €500), laws tell us what we "should" do. Thus, each legal system can be hypothesised to have a () instructing us to obey. Kelsen's major opponent, Carl Schmitt, rejected both positivism and the idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions.Bielefeldt, Carl Schmitt's Critique of Liberalism, 25–26 Therefore, Schmitt advocated a jurisprudence of the exception (state of emergency), which denied that legal norms could encompass all of the political experience.
Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fiction in The Concept of Law. Hart argued law is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (to vary laws), and the rule of recognition (to identify laws as valid). Two of Hart's students continued the debate: In his book Law's Empire, Ronald Dworkin attacked Hart and the positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an "interpretive concept" that requires judges to find the best fitting and most just solution to a legal dispute, given their Anglo-American constitutional traditions. Joseph Raz, on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law. Raz argues that law is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation is best left to sociology rather than to jurisprudence.
History
The history of law is closely linked to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of Ma'at and characterised by tradition, rhetorical speech, social equality and impartiality.VerSteeg, Law in ancient Egypt By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if … then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae, for the entire public to see; this became known as the Codex Hammurabi. The most intact copy of these stelae was discovered in the 19th century by British Assyriologists, and has since been fully transliterated and translated into various languages, including English, Italian, German, and French.
The Old Testament dates back to 1280 BC and presents moral imperatives as recommendations for a good society. The small Greek city-state, ancient Athens, from about the 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and enslaved people. However, Athens had no legal science or single word for "law", relying instead on the three-way distinction between divine law (thémis), human decree (nómos), and custom (díkē). Yet Ancient Greek law contained major constitutional innovations in the development of democracy.
Roman law was heavily influenced by Greek philosophy, but professional jurists developed its detailed rules and were highly sophisticated. Over the centuries between the rise and decline of the Roman Empire, law was adapted to cope with the changing social situations and underwent major codification under Theodosius II and Justinian I. Although codes were replaced by custom and case law during the Early Middle Ages, Roman law was rediscovered around the 11th century when medieval legal scholars began to research Roman codes and adapt their concepts to the canon law, giving birth to the . Latin legal maxims (called brocards) were compiled for guidance. In medieval England, royal courts developed a body of precedent which later became the common law. A Europe-wide Law Merchant was established so that merchants could trade under common standards of practice rather than the many splintered facets of local laws. The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and the alienability of property. As nationalism grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries' local law under new civil codes. The Napoleonic and German Codes became the most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging. EU law is codified in treaties, but develops through de facto precedents laid down by the European Court of Justice.