Unit 2: The nature of the law

Unit 2 of W101 seeks to define the nature of the law, and has six subsections.

1. Seeking a definition of law
2. law is a system of rules
3. the role of the law
4. law and order in context
5. law and morality
6. law and justice

Each of these obviously has further subsections which I will get to. Rather than deal with each here, I will put it all together under the main subsections.

Definition of the law

There is no simple explanation to say what law is. Many academics and scholars have tried for centuries to define law. No one definition is precise; rather, different definitions just give us a clearer idea when put together.

At the heart of each definition (several of which I will come to shortly) is a common theme: law is a system of rules. Remember that a rule is backed by authority, by someone/some body in a position to enforce that rule. Rules (laws) also are created by some sort of formal process.

John Austin (1790–1859) argues "that law is distinct from other rules as ‘the command of a sovereign backed by cohesive sanctions’. Austin distinguishes law from other rules in the following ways:

• Law is created by a formal recognised process. The nature of the ‘sovereign’ will vary depending on the state concerned; in England and Wales, law is created by the monarch in Parliament.
• Legal rules are obligatory; an individual has no choice but to obey them.
• There is an enforcement mechanism to ensure that the laws are enforced."

[The Open University, (2014, Unit 2]

Note that law is not created by the monarch in Parliament*. The process has evolved since the time of Austin.

Upon reflection, Austin's theory aptly describes criminal law – the obligation to obey rules, and an enforcement mechanism by the State. However, this explanation does not adequately cover civil law where most of the relationships are voluntary.

Professor H.L.A. Hart (1907–1992) divided law into primary and secondary rules.

Primary rules: these rules are needed by simple societies and impose a duty on the members which are necessary for survival – they prohibit socially destructive behaviour. For example, murder and theft or behaviour that causes harm. In simple societies the enforcement comes from social pressure.

Secondary rules: these are needed by more complex societies, where there is need to confer authority and power. Prof Hart identified three types:

• Rules of Adjudication – these include which type of dispute is heard by which court, who is qualified to hear the disputes, and what sanctions are applied when a primary rule is broken.
• Rules of change – these set out the process by which both primary and secondary rules may be changed when necessary.
• Rules of recognition – these tell which rules have legal force, especially in developed societies where rules are numerous and complex.

It is to be noted that there are many theories on law put forward over time from many different people ranging from philosophers to legal practitioners and academics. As mentioned before, a simple definition of what law is, definitely is not a simple task.

Next: the role of the law.