The Nature of Law
First published Sun May 27, 2001; substantive revision Fri Feb 25, 2011
Lawyers are typically interested in the question: What is the law on a particular
issue? This is always a local question and answers to it are bound to differ according to
the specific jurisdiction in which they are asked. In contrast, philosophy of law is
interested in the general question: What is Law? This general question about the nature of
law presupposes that law is a unique social-political phenomenon, with more or less
universal characteristics that can be discerned through philosophical analysis. General
jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to
be universal. It assumes that law possesses certain features, and it possesses them by its
very nature, or essence, as law, whenever and wherever it happens to exist. However,
even if there are such universal characteristics of law, the reasons for a philosophical
interest in elucidating them remain to be explained. First, there is the sheer intellectual
interest in understanding such a complex social phenomenon, which is, after all, one of
the most intricate aspects of human culture. Law, however, is also a normative social
practice: it purports to guide human behavior, giving rise to reasons for action. An
attempt to explain this normative, reason-giving aspect of law is one of the main
challenges of general jurisprudence. These two sources of interest in the nature of law are
closely linked. Law is not the only normative domain in our culture; morality, religion,
social conventions, etiquette, and so on, also guide human conduct in many ways which
are similar to law. Therefore, part of what is involved in the understanding of the nature
of law consists in an explanation of how law differs from these similar normative
domains, how it interacts with them, and whether its intelligibility depends on such other
normative orders, like morality or social conventions.
Contemporary legal theories define these two main interests in the nature of law
in the following terms.
First, we need to understand the general conditions that would render any putative
norm legally valid. Is it, for example, just a matter of the source of the norm, such as its
enactment by a particular political institution, or is it also a matter of the norm's content?
This is the general question about the conditions of legal validity.
Second, there is the interest in the normative aspect of law. This philosophical
interest is twofold: A complete philosophical account of the normativity of law comprises
,both an explanatory and a normative-justificatory task. The explanatory task consists of
an attempt to explain how legal norms can give rise to reasons for action, and what kinds
of reasons are involved. The task of justification concerns the elucidation of the reasons
people ought to have for acknowledging law's normative aspect. In other words, it is the
attempt to explain the moral legitimacy of law. A theory about the nature of law, as
opposed to critical theories of law, concentrates on the first of these two questions. It
purports to explain what the normativity of law actually consists in. Some contemporary
legal philosophers, however, doubt that these two aspects of the normativity of law can
be separated. (We will return to this later.)
Thus, elucidating the conditions of legal validity and explaining the normativity
of law form the two main subjects of any general theory about the nature of law. In the
course of the last few centuries, two main rival philosophical traditions have emerged,
providing different answers to these questions. The older one, dating back to late
medieval Christian scholarship, is called the natural law tradition. Since the early 19th
century, Natural Law theories have been fiercely challenged by the legal positivism
tradition promulgated by such scholars as Jeremy Bentham and John Austin. The
philosophical origins of Legal Positivism are much earlier, though, probably in the
political philosophy of Thomas Hobbes. The main controversy between these two
traditions concerns the conditions of legal validity. Basically, Legal Positivism asserts,
and Natural Law denies, that the conditions of legal validity are purely a matter of social
facts. In contrast to Positivism, Natural Law claims that the conditions of legal validity
are not exhausted by social facts; the moral content of the putative norms also bears on
their legal validity. As the famous dictum of Saint Augustine has it: ‘lex iniusta non est
lex’ (unjust law is not law).
• 1. The Conditions of Legal Validity
• 2. The Normativity of Law
1. The Conditions of Legal Validity
The main insight of Legal Positivism, that the conditions of legal validity are
determined by social facts, involves two separate claims, which have been labeled The
Social Thesis and The Separation Thesis. The Social Thesis asserts that law is,
profoundly, a social phenomenon, and that the conditions of legal validity consist of
, social — that is, non-normative — facts. Early Legal Positivists followed Hobbes' insight
that the law is, essentially, an instrument of political sovereignty, and they maintained
that the basic source of legal validity resides in the facts constituting political
sovereignty. Law, they thought, is basically the command of the sovereign. Later legal
Positivists have modified this view, maintaining that social rules, and not the facts about
sovereignty, constitute the grounds of law. Most contemporary legal Positivists share the
view that there are conventional rules of recognition, namely, social conventions which
determine certain facts or events that provide the ways for the creation, modification, and
annulment of legal standards. These facts, such as an act of legislation or a judicial
decision, are the sources of law conventionally identified as such in each and every
modern legal system. One way of understanding the legal positivist position here is to see
it as a form of reduction: legal positivism maintains, essentially, that the legal domain is
reducible to facts of a non-normative type, that is, facts about people's conduct, beliefs
and attitudes.
Natural lawyers deny this insight, insisting that a putative norm cannot become
legally valid unless it passes a certain threshold of morality. Positive law must conform in
its content to some basic precepts of Natural Law, that is, universal morality, in order to
become law in the first place. In other words, Natural Lawyers maintain that the moral
content of norms, and not just their social origins, also forms part of the conditions of
legal validity. And again, it is possible to view this position as a non-reductive conception
of law, maintaining that legal validity cannot be reduced to non-normative facts.
The Separation Thesis is an important negative implication of the Social Thesis,
maintaining that there is a conceptual separation between law and morality, that is,
between what the law is, and what the law ought to be. The Separation Thesis, however,
has often been overstated. It is sometimes thought that Natural Law asserts, and Legal
Positivism denies, that the law is, by necessity, morally good or that the law must have
some minimal moral content. The Social Thesis certainly does not entail the falsehood of
the assumption that there is something necessarily good in the law. Legal Positivism can
accept the claim that law is, by its very nature or its essential functions in society,
something good that deserves our moral appreciation. Nor is Legal Positivism forced to
deny the plausible claim that wherever law exists, it would have to have a great many
prescriptions, which coincide with morality. There is probably a considerable overlap,
and perhaps necessarily so, between the actual content of law and morality. Once again,
First published Sun May 27, 2001; substantive revision Fri Feb 25, 2011
Lawyers are typically interested in the question: What is the law on a particular
issue? This is always a local question and answers to it are bound to differ according to
the specific jurisdiction in which they are asked. In contrast, philosophy of law is
interested in the general question: What is Law? This general question about the nature of
law presupposes that law is a unique social-political phenomenon, with more or less
universal characteristics that can be discerned through philosophical analysis. General
jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to
be universal. It assumes that law possesses certain features, and it possesses them by its
very nature, or essence, as law, whenever and wherever it happens to exist. However,
even if there are such universal characteristics of law, the reasons for a philosophical
interest in elucidating them remain to be explained. First, there is the sheer intellectual
interest in understanding such a complex social phenomenon, which is, after all, one of
the most intricate aspects of human culture. Law, however, is also a normative social
practice: it purports to guide human behavior, giving rise to reasons for action. An
attempt to explain this normative, reason-giving aspect of law is one of the main
challenges of general jurisprudence. These two sources of interest in the nature of law are
closely linked. Law is not the only normative domain in our culture; morality, religion,
social conventions, etiquette, and so on, also guide human conduct in many ways which
are similar to law. Therefore, part of what is involved in the understanding of the nature
of law consists in an explanation of how law differs from these similar normative
domains, how it interacts with them, and whether its intelligibility depends on such other
normative orders, like morality or social conventions.
Contemporary legal theories define these two main interests in the nature of law
in the following terms.
First, we need to understand the general conditions that would render any putative
norm legally valid. Is it, for example, just a matter of the source of the norm, such as its
enactment by a particular political institution, or is it also a matter of the norm's content?
This is the general question about the conditions of legal validity.
Second, there is the interest in the normative aspect of law. This philosophical
interest is twofold: A complete philosophical account of the normativity of law comprises
,both an explanatory and a normative-justificatory task. The explanatory task consists of
an attempt to explain how legal norms can give rise to reasons for action, and what kinds
of reasons are involved. The task of justification concerns the elucidation of the reasons
people ought to have for acknowledging law's normative aspect. In other words, it is the
attempt to explain the moral legitimacy of law. A theory about the nature of law, as
opposed to critical theories of law, concentrates on the first of these two questions. It
purports to explain what the normativity of law actually consists in. Some contemporary
legal philosophers, however, doubt that these two aspects of the normativity of law can
be separated. (We will return to this later.)
Thus, elucidating the conditions of legal validity and explaining the normativity
of law form the two main subjects of any general theory about the nature of law. In the
course of the last few centuries, two main rival philosophical traditions have emerged,
providing different answers to these questions. The older one, dating back to late
medieval Christian scholarship, is called the natural law tradition. Since the early 19th
century, Natural Law theories have been fiercely challenged by the legal positivism
tradition promulgated by such scholars as Jeremy Bentham and John Austin. The
philosophical origins of Legal Positivism are much earlier, though, probably in the
political philosophy of Thomas Hobbes. The main controversy between these two
traditions concerns the conditions of legal validity. Basically, Legal Positivism asserts,
and Natural Law denies, that the conditions of legal validity are purely a matter of social
facts. In contrast to Positivism, Natural Law claims that the conditions of legal validity
are not exhausted by social facts; the moral content of the putative norms also bears on
their legal validity. As the famous dictum of Saint Augustine has it: ‘lex iniusta non est
lex’ (unjust law is not law).
• 1. The Conditions of Legal Validity
• 2. The Normativity of Law
1. The Conditions of Legal Validity
The main insight of Legal Positivism, that the conditions of legal validity are
determined by social facts, involves two separate claims, which have been labeled The
Social Thesis and The Separation Thesis. The Social Thesis asserts that law is,
profoundly, a social phenomenon, and that the conditions of legal validity consist of
, social — that is, non-normative — facts. Early Legal Positivists followed Hobbes' insight
that the law is, essentially, an instrument of political sovereignty, and they maintained
that the basic source of legal validity resides in the facts constituting political
sovereignty. Law, they thought, is basically the command of the sovereign. Later legal
Positivists have modified this view, maintaining that social rules, and not the facts about
sovereignty, constitute the grounds of law. Most contemporary legal Positivists share the
view that there are conventional rules of recognition, namely, social conventions which
determine certain facts or events that provide the ways for the creation, modification, and
annulment of legal standards. These facts, such as an act of legislation or a judicial
decision, are the sources of law conventionally identified as such in each and every
modern legal system. One way of understanding the legal positivist position here is to see
it as a form of reduction: legal positivism maintains, essentially, that the legal domain is
reducible to facts of a non-normative type, that is, facts about people's conduct, beliefs
and attitudes.
Natural lawyers deny this insight, insisting that a putative norm cannot become
legally valid unless it passes a certain threshold of morality. Positive law must conform in
its content to some basic precepts of Natural Law, that is, universal morality, in order to
become law in the first place. In other words, Natural Lawyers maintain that the moral
content of norms, and not just their social origins, also forms part of the conditions of
legal validity. And again, it is possible to view this position as a non-reductive conception
of law, maintaining that legal validity cannot be reduced to non-normative facts.
The Separation Thesis is an important negative implication of the Social Thesis,
maintaining that there is a conceptual separation between law and morality, that is,
between what the law is, and what the law ought to be. The Separation Thesis, however,
has often been overstated. It is sometimes thought that Natural Law asserts, and Legal
Positivism denies, that the law is, by necessity, morally good or that the law must have
some minimal moral content. The Social Thesis certainly does not entail the falsehood of
the assumption that there is something necessarily good in the law. Legal Positivism can
accept the claim that law is, by its very nature or its essential functions in society,
something good that deserves our moral appreciation. Nor is Legal Positivism forced to
deny the plausible claim that wherever law exists, it would have to have a great many
prescriptions, which coincide with morality. There is probably a considerable overlap,
and perhaps necessarily so, between the actual content of law and morality. Once again,
