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Social Foundations of Law

By Samuel Mwangi1

Introduction to Law
Law as understood from the broad perspective of society i.e. sociology, anthropology, economics,
history, religion and politics.
➢ What is law;
➢ Normative character of Law;
➢ Philosophical character of Law; and
➢ Boundaries &Limits of the Law.

Abstract

Analyzing the social foundations of law fosters critical thinking and a more nuanced understanding of legal
principles. It encourages students to question the underlying assumptions of legal doctrines and consider their
broader social implications. For example, examining the historical context of property laws can reveal how they
may perpetuate social inequalities, prompting critical evaluation and potential reform.
The study of social foundations of law is essential for understanding how legal systems operate within the
broader context of society. This interdisciplinary approach examines the interaction between law and various
social factors, including history, culture, economics, politics, and religion. By exploring these relationships,
students and scholars can gain a deeper appreciation of the role of law in shaping and reflecting societal values
and norms. This essay outlines the primary purposes of studying the social foundations of law, emphasizing its
significance for legal education, policy-making, and the promotion of social justice.

A. What is Law?

Law plays different roles in the lives of everyone, and a single word cannot define law.
One can draw the following analogies to understand law.
i. Law is like a temple which is designed so that men and women can live in his or her
palace of peace.
ii. Law is love, which is inarticulate in nature. Both have the power to regulate human
emotions. Law is as complex as love.
iii. An analogy can be drawn between law and sea. Both law and sea are vast and as a drop
adds to the quantity of water in the ocean, in the same way every judgement adds
itself to many precedents. Also, there is no life without water, there is no life without
law.

1
Advocate of the High Court of Kenya, LL.M, LL. B, Dip. in Law (KSL); Author:
Email: smgadvocates1@gmail.com
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iv. Law is not a mistress, law is a spouse. It stays with you, wherever you go.
v. Law is an invisible force that controls every human being.
Law connects us like Life and Water (LAW). All these statements give the idea that law is
universal.
• Salmond defined law as, “the law may be defined as body of principles
recognised and applied by the state in the administration of justice.”

• According to John Chipman Gray, “the Law of the State or of any organised
body of men is composed of the rules which the courts, that is judicial organ
of the body lays down for the determination of legal rights and duties.”

B. Nature and Scope of Laws

There are two kinds of law. One is based on justice, the other one is based on control. The
latter part is in use today. “Might is right” principle is followed. It is retribution instead of
restoration which should be followed.
On one hand, Justice is a set of universal principles which guide people to analyse what is
right and what is wrong. It disregards the culture and society one lives in.
Fiat justitia ruat caelum is a Latin phrase which means, “Let justice be done, though the
sky falls.”
On the other hand, Social control refers to mechanisms which regulate individual and group
behaviour.
E.A. Ross believed that it is not the laws that guide human behaviour but it is the belief
systems that guide what individuals do. Social control mechanisms can be adopted as laws and
norms which control and define human behaviour.
Law serves many purposes and functions.
i) It helps to maintain peace. Violence should not be allowed in the society
and thus, peace is maintained by the orders or we can say the laws of the
government;
ii) Law helps to establish standards;
iii) It also protects rights of the people. Without laws, people will not even get
the basic rights which they deserve.
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C. Jurisprudential Schools of Law
Jurisprudence refers to the study of law. The word is derived from “juris prudential” which
means knowledge of the law. If one understands the theories and philosophies then one can
get a better understanding of law. Legal thoughts can be viewed from the angle of different
schools of jurisprudence, given below.

Positivist School
Positivist school is also referred to as the Analytical school. According to this school, law is
the command of the sovereign, and that decisions can be made logically from predetermined
cases and ignoring the moral aspects.
This school says there isn’t a connection between law and morality. For example, Judges may
not want the landlord to evict the elderly old lady from the land on which the rent is overdue.
Though the laws may say that if the rent is not paid, the defaulter has to vacate the land.
Positivist law school says that judges should decide cases in accordance to law and keeping
aside their morals.
It believes that integrity of law is maintained through neutral judiciary. Law is what is laid
down. What ought to be the law factor should be ignored. Further, the basis of law should
be maximum happiness of maximum people.

Historical School
“Law is the product of social consciousness.” This social consciousness started even
before sovereignty, from the very beginning of the society. The proponents of this school are
Sir Henry Maine, Edmund Burke.
The Historical school is based on Volksgeist theory, which says that law is based on the
general will of the people. It grows as the nation grows, and the laws are based upon the local
customs, local behaviour and the current thought processes of the society. All these affect
law and makes it a peaceful society.
The theory focuses a lot on the past. However, it mentions that laws must change with time,
and Laws must be what the society demands.

Natural School
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Natural law is a philosophy that focuses on the laws of the nature. It says that there are some
laws which all humans deserve as they are inherent in society, and opposes the positivist
theory.
A lot of emphasis is placed on morals and ethics of the society. It is based on the reasons they
make for deciding between good and evil.
Immanuel Kant, Hegel and Grotius are the proponents of this school, and regarded law
neither as command of the sovereign nor a product of consciousness rather based on
rationality and reasonableness.
The main aim of Philosophical school or Natural school is to elevate humans from evil and
raise them to do good.
In Declaration of Independence and Bill of Rights of the US Constitution, Thomas Jefferson
has cited Natural Law theory calling it “the laws of Nature and of Nature’s God.”

Sociological School
This school emerged as a synthesis of many jurist’s thoughts, and lays emphasis on functional
part of law rather than the abstract part of law.
They regarded law as a social institution, and believed that laws are not created by state, but
Laws come from society.
The laws are not sanctioned by the state but by the awareness on the part of people, and
these laws establish an interconnection between society and laws. Both Historical and
Philosophical schools caused a hindrance to social and legal reforms, as a result Sociological
school was formed.
This school is the only school of jurisprudence which has a definite program which the other
schools do not have, which is the placing of emphasis on the concept of justice.

Realism School
Law exists as a matter of reality. This school of law emphasises on what courts may do rather
than the abstract ideas. It considers the customary practices and circumstances for providing
with a new law. The theory can be understood with descriptive way or prescriptive way or
both. It is believed that law is a body of government for the administration of justice. Like
Positivist theory, this school sees law as will of the state but it is done through administration
of justice.
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Comparative School
Professor Kecton considers, “the development of Comparative Jurisprudence is the
development of two or more systems of law.” This school is concerned about space,
and collects and examines rules that are prevalent and the man who agree and disagree with
the system and tries to find a system which is natural. Comparative Jurisprudence does a
comparative analysis and aids Historical as well as an Analytical School of Law.

D. Evolution of Law

i) Christianity and Law

Eons ago, it was believed that according to Christianity, God and Old Testaments created the
law. Law was a set of rules written by God and people believed in Divine power. Also, it was
believed that only if the laws are considered to be sacred then it will be followed.
Christians placed a lot of emphasis on morals, and believed that if the foundations of law are
weak, then society will easily revise them according to their needs. The laws will become
crooked according to man’s selfish needs.
As Christians, it was believed that the omniscient, omnipotent, omnipresent loving God is the
world’s Lawgiver (Psalm 127:1). God provides Himself as an absolute basis for law. The
Christian system of law did not change according to the whims and remained static.
Christianity did not neglect human rights. It ensured certain human rights that are written in
the Bible. The Bible has certain instructions specified and He commands us to follow them.
The Bible tells us what God believes to be good and what He wants from us: “to do justify,
and to love mercy, and to walk humbly with thy God” (Micah 6:8).
It was believed that one can hoodwink man’s laws but no one can escape from God’s
punishment.
This theory led to diverse views. The people who believed in God were questioned by others.
People questioned them because there was no evidence of God coming to earth and
formulating the laws.
As a result, the definition changed over time, and people started believing more in themselves
than in the supreme commander. The meaning of law became closer to humans. The definition
shifted its emphasis from God to lawmakers.

ii) Sovereignty and Law

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According to Austin’s theory, sovereignty is the command given by superior to inferior. So,
whatever the King proclaimed can be considered as law and should not face any revolt.
If there was only one person who made all the laws, is he competent enough to frame laws
for all the sectors of the society? The laws made by King could not be questioned. Whatever
the king said, prevailed.
So, what if a particular sector of society is unhappy with the existing law? They had no right
to question the king. Thus, Austin’s theory focused on supremacy.
A few lines from a poem which can elaborate on his theory-

“Laws are
Framed by us.
We are framed by someone else,
Who is above any law.”

However, Hans Kelsen believed in the idea to end sovereignty.

He believed that there was no need for the word sovereignty to understand the meaning of
law and to locate the applications of legal norms. He believed that legal norms are not valid
because they are given by sovereign or compatible with moral laws. He discarded the theory
that sovereignty is the ultimate source of law.
It is believed that where there is sovereignty there is no law and where there is law, there is
no sovereignty.
Therefore, times changed and people realised that whatever King ordered should not be
proclaimed as law. Rather, they should have the freedom to choose their ruler or decide
whom they want to be ruled by. So, sovereignty part was disregarded by time.

iii) Modern times and Law

Law in modern time is dynamic. Law is what the judges say, and evolved from religious books
to Kings proclamation to what it is today.
Law in the modern times is influenced by time and places. A crime in one place may be an
ordinary act of another. Thus, nothing is wrong or right, it is now the law of the state which
governs the act. It is customs, practices and habits that become law.
Different culture punishes different things, which means that different rules guide different
laws of the land. The punishment for a crime varies from one country to the other.
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For instance, punishment for negligent driving, witch branding, adultery is different at different
places. Though main aim of the present laws is to provide justice to the one in need. Also, no
one is condemned unheard which leads to the idea that justice is given after hearing both the
sides. In present times, it is what the judges say.
In one of the beautiful poems, law is described as,

“Law cannot bind me,

Law cannot judge me,
I can change the law
As per my convenience.”

Law is thus defined as, “a set of special legal rules, enforceable by the courts,
regulating the government of the state, relationship between the organs of the
state and relationship or conducts subjects towards each other.” It is a body of rules
made by the legislature.
Law can only be enforced by the majority, and when there is general support, law enforces
itself. A body is elected which frames the law for everyone. People have to be governed by
law to avoid illegal and immoral acts.

iv) Are Laws Necessary?

Now, thinking upon the point: why do we need law? Is it even required?
“We talk while we are mobile, some of us drink like fish from the wine lake and smoke like bush fire
and literally are buried under butter mountain while our compatriots are hungry, we are always in
haste and have no time for others.” These lines do summarise the ideas of need of law.
Law acts as a medicine to cure the sufferer.
Civilisation has developed the humans, not only in emotions but also in technology. So, at
every new turn, we require a law to help us move forward in society.
Lord Dylan stated, “to live outside the law, you must be honest.” The words within
the quotes are absolutely right because if everyone is honest then there will be no need for
law. There would have been peace all around but we all know that this is not the reality.

v) What is the main aim of Law?

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We now know that laws are necessary but what is the aim of law. How will they benefit the
society?

Law acts as an instrument to provide justice. Various theorists harped upon the main aspect
of justice, and equated law with justice.
But why is law required to ensure justice? To answer the question, Thomas Hobbes in his
Leviathan Book says, “To this war of every man, against every man, this also is
consequent; that nothing can be unjust. The notions of right and wrong, justice
and injustice have there no place. When there is no common power, there is no
law: where no law, no injustice.” So, it can be concluded that in order to have justice,
law is needed.
This now poses another question that what if law proves to be inefficient and no
justice is provided? What will be the situation if law turns out to be biased?
The answer to the above questions can be summarized as follows, “for every judgement
passed by the court there are amendments which ensures that law moves with time. It changes
with the changing demands of the society”.

E. Normative Character of Law

Hans Kelsen’s jurisprudential work centered on the normative nature of law. He believes
that law necessarily consists of norms. Moreover, this requires an approach different from
descriptive, empirical approaches.
Kelsen’s approach assumes that there is a sharp division between “ought” statements and
“is” statements. No one can draw a conclusion about what one ought to do from statements
of what is the case. This concept of not accepting the ‘ought’ statements in the form of ‘is’
statements is widely acceptable in modern time.
The importance of the differentiation between “ought” and “is” is the evidence that for every
normative conclusion, there must be at least 1 normative premise. (e.g., about what one ought
to do or value).
In the context of a normative system like law (or religion or morality), every statement of
what one ought to do (or ought not to do) requires justification from a more general or basic
statement. Such statements lead upward through the normative hierarchy until one reaches
a foundational normative premise.
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In Kelsen’s understanding of “the science” of norms, every “ought” claim implies the
foundational norm of that normative system.
The normative system along with its foundational norm is essentially separate from the
normative system of a particular moral system or religion. However, this does not exclude
lawmakers from being influenced by the content of some another normative system.
Philosophy of law, branch of philosophy that investigates the nature of law, especially in its
relation to human values, attitudes, practices, and political communities. Views about the
nature of law often depend upon, and occasionally have contributed to, answers to some of
the most-fundamental philosophical questions—for example, regarding the foundations of
morality, justice, and rights; the nature of human action and intention; the relations between
social practices and values; the nature of knowledge and truth; and the justification of political
rule (see political philosophy). The philosophy of law is therefore an integral part of philosophy
more generally.

Ancient Greece
The abstract concept of law is acknowledged, though not discussed, in the poems of Homer
and Hesiod in the 8th–7th century BCE. In the Greek histories and literature of the 6th and
5th centuries BCE, however, one finds the first articulation of ideas about law that have had
enduring influence in the West: that law is a kind of command or prohibition with regard to
what its subjects ought to do and that law is often accompanied by at least the threat of
punishment or coercion by the state. Herodotus, in his History of the Greco-Persian Wars,
records a Spartan king remarking to the king of Persia that the Greeks “are free, yet not
wholly free; law is their master, whom they fear much more than your men fear you. They
do whatever it bids.”
But it is Plato, writing during the decline of the Athenian empire, who was the first to advance
philosophical claims about the nature of law. The relevant Greek term, nomos, varied widely
in meaning across contexts, often referring simply to convention or practice. But by Plato’s
time it had acquired the more-specific sense of a statute or a proclaimed or written directive
that established a standard for human action.

Aristotle
Plato’s student, Aristotle gave more-systematic expression to a number of influential ideas
about law. Aristotle famously said that humans are “political animals,” meaning that they
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naturally organize themselves into distinct sorts of communities, the largest of which is the
city. Law, Aristotle said, is “a sort of order” and thus provides a comprehensive framework
of rules and institutions through which a society is constituted.
Aristotle was also the first to articulate what has come to be known as the ideal of the rule
of law. He shared the common Greek view that, as a general principle, law had a share in
eternal divine wisdom. As such, it was an instrument by which to constrain the exercise of
political power, particularly that of tyrants, whose policies represented only their own
interests and not the good of the community.

Rome and the Middle Ages

The Romans established new legal forms and institutions as well as the first legal professionals
and administrators. Roman jurists developed the first form of what would later be called “legal
science,” and a new genre of legal writing was invented in service of this discipline, in which
jurists would collect and organize Roman law according to complex taxonomies.

Cicero
The Roman jurist and philosopher Marcus Tullius Cicero Cicero, articulated the first, and
some would say definitive, conception of what is called “natural law.” Although Cicero was a
legal practitioner and was versed in the positive (human-enacted) law of the Roman state, he
sought to state it in relation to what he considered objective moral truths, which he also
called “laws” (thus the tendency of many writers up to the present day to refer to timeless
moral truths as “natural law”). In his work De Republica (On the Republic), he famously
held, echoing Sophocles, that:

“True law is right reason in agreement with nature…to curtail this law is impious, to
amend it illicit, to repeal it impossible…nor will it be one law at Rome and a different
one at Athens, but one and the same Law, eternal and unchangeable.”.

St. Thomas Aquinas

Aquinas worked within the conceptual framework and basic principles of Aristotle’s
philosophy of nature, value, and politics but often extended and modified them in novel ways;
this is especially so in the case of his philosophy of law. Aquinas defined law in part as an
“ordinance of reason”—that is, a prescription that is both produced (by lawmakers) and
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responded to (by subjects) through an exercise of the distinctive human capacity of reason.
He claimed, in terms clearer than in previous theories, that law had by nature a distinctive
point or purpose. In the most-abstract sense, the purpose of law is to serve the common
good of a political community. More concretely, law is a promulgated plan of coordination
whereby a society can realize goods (both tangible and intangible) that cannot be achieved by
other means.
Aquinas’s central natural-law thesis is that valid positive law is necessarily derived from
objective moral principles (or moral truths). This derivation can occur in two ways. First, law
can be derived by a kind of immediate deduction from moral principles, such that there is a
direct correspondence in content between a moral and a legal rule. For example, from the
moral principle that murder is wrong, the legal prohibition of homicide may be formulated
and enacted. Second, law can be derived from morality by a more-indirect process, which
Aquinas called (in Latin) determinatio—determination or specification of how a general moral
principle applies in specific circumstances to facilitate human coordination. Much of positive
law, he claimed, was derived from morality in this second way.

Aquinas held that if positive law is not derived from valid moral principles in either of these
two ways, then, to recall Augustine’s slogan, such laws are “unjust” and fail to be “law.” As a
consequence, they fail to have any binding authority such that citizens have an obligation to
obey them. Aquinas’s account of the relation between law and morality is made more complex
by his account of who is most suitable to serve as ruler and as legislator. The concepts of an
authoritative lawmaker and of morally binding laws made by that person are correlates. The
point of law is to serve the common good, and if a candidate legislator is able to do that
effectively by exercising political rule, then Aquinas goes so far as to say that such a person
has an obligation to govern. Legitimate political authorities are those who are motivated by
“the care of the community,” and any law created from other motivations is a distinct form
of injustice that can also invalidate positive law.

F. The Early Modern Period (1600–1800)

Command and common-law theories of law
From the late European Renaissance to the end of the 18th century, philosophical debates
about the nature of law grew and diversified considerably, involving theorists from England
and across continental Europe. There were two major thematic developments during that
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period. First was the development of the view, first articulated in ancient Greece and
developed to some extent by Aquinas, that law should be understood on the model of a
command, given by a superior to an inferior, the issuance of which made certain actions
obligatory for the rational addressee (and putative subject). Second, starting in the 1620s,
there emerged in England an increasingly sophisticated defense of the idea that at the
foundation of law was custom, exemplified by the common law of England. These “common
law theorists” have had an enduring impact on Western philosophy of law up to the present
day.

The command theory of law

First, with regard to the development of the command theory of law, philosophers such as
Hugo Grotius, and Francisco Suárez developed theories of what persons must be like in order
to be capable of imposing and subjecting themselves to law. Although there were differences
between these theorists, they shared certain common assumptions. It was agreed, for
example, that law is directed at beings who are free—who have the capacity to choose among
a range of available actions—intelligent, and self-directing. In other words, such beings have
the capacity to recognize law as a kind of command addressed to them, to understand that
fact as a reason to act (or at least to deliberate) in certain ways, and then actually to act on
the basis of that recognition and deliberation. Moreover, these philosophers agreed that the
content of law is determined by the content of the will of the “commander,” or the lawmaker.

The common-law theory of law

The other major development of that period was the emergence in England in the early 17th
century of a group of lawyers and judges who held that all law is either equivalent to or
derived from the common law, which they identified as “immemorial custom.” Among those
who made important contributions to this general theory were Sir Edward Coke, Sir Matthew
Hale, and later Sir William Blackstone.
Laws are part of the common law only if, as Hale said, “they have acquired their binding power
and the force of laws by a long and immemorial usage.” The very fact of the usage of a rule
by a community for years or centuries is what lends that rule authority and legitimacy.

Common-law theory was an important departure from the command model of law, primarily
because it moved away from the statute as a paradigm and instead focused on explaining the
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operation of the courts and their relation to the larger community. The activities of judges
and practicing lawyers were therefore, for the first time, given pride of place in constructing
a philosophical theory of law. That general approach would become dominant throughout the
20th century.

Thomas Hobbes
Among the most-influential philosophers of law from the early modern period was Thomas
Hobbes, whose theory of law offered some of the earliest criticisms of common-law theory,
which would be developed significantly by theorists in the 18th century. For Hobbes, law was
the primary instrument of a sovereign by which to serve the ends of government, which were
principally peace and the personal security of all its citizens. Writing during and after the
English Civil Wars (1642–51), he developed the idea that government which ruled effectively
by law is the only bulwark against anarchy or, as he famously put it, “a war of all against all.”
Hobbes’s philosophy of law is in part an account of what law must be like in order to serve
that function. Many scholars credit Hobbes as the founder of legal positivism, the dominant
philosophical theory of law since the 17th century.

The core ideas of legal positivism are that law is essentially a matter of social fact and that it
bears at most a contingent connection with moral norms: many actions that are legally
proscribed (or prescribed) can nonetheless be moral (or immoral). Insofar as this was
Hobbes’s view, it was because he was an adherent of the command theory of law already
discussed.

The 19th century

Jeremy Bentham, is one of the great philosophers of law in the Western tradition, but his
legacy is unusual and is in fact still developing. He remains one of the most analytically rigorous
and insightful philosophers ever to write about the nature of law, but much of his writing was,
upon his death, unpublished—and indeed unread until the mid-20th century. A much-
simplified version of his philosophy of law was presented by the English jurist John Austin,
which in turn helped set the agenda for important work in the 20th century.

Jeremy Bentham
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There are two major themes in Bentham’s thought that extend over most of his published
and unpublished writings on the nature of law. The first, and earliest, theme was a relentless
and comprehensive critique of common-law theory and, indeed, an attack on the very idea of
the common law itself. The second was an extension and revision of Hobbes’s conception of
sovereignty and the idea of law as a kind of command.

First, Bentham thought that the common law that allegedly formed the basis of the law of
England was confused in theory, dangerous in practice, and in any case incapable of being law
in the fullest sense. His initial target with this line of thought was Blackstone, who in his
Commentaries on the Laws of England, tried to systematize and reduce the long history of
English common law to an elegant set of basic principles. Blackstone repeatedly wrote of the
“wisdom” of these principles as bound up with their long acceptance among the English
people; the very fact of their long use and endorsement lent them legitimacy and binding force.

John Austin
Austin was a relatively unknown figure during his tenure as the first professor of jurisprudence
at University College London in 1826–32. After his death, however, two of his works, The
Province of Jurisprudence Determined (1832) and Lectures on Jurisprudence (4th
ed. 1879), became standard texts in English legal education and played a pivotal role in the
20th-century development of legal positivism and of the philosophy of law more generally.
Although Austin was directly influenced by Bentham’s writings, he had access to only a
relatively small portion of them; he was therefore not fully aware of the complexity and
originality of Bentham’s views. Accordingly, Austin’s legal positivism is often treated as a
simplified, though elegant and accessible, presentation of the basic tenets of Bentham’s theory.
Austin famously declared that “the existence of law is one thing; its merit or demerit
is another,” which would become an oft-cited slogan of legal positivism.

Law, said Austin, is the command of the sovereign backed by threat of sanction. Commands
are necessarily general prescriptions that signify a desire of the commanding sovereign that
an action be done or not done. Like Bentham, Austin characterized the sovereign as a person
or group of persons who are habitually obeyed by the bulk of a political community but who
do not habitually obey anyone else. “Habitual obedience” in Austin’s theory is a relatively
simple notion as compared with Bentham’s interactional model: all that it requires is a
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correspondence between what the sovereign commands and what the bulk of a political
community actually does. In Austin’s view, law does not provide any unique motivational force,
and why citizens obey it—i.e., the reason for which they obey it—is therefore not important.
The consequence of this view, however, is that at least the threat of sanction is necessary to
motivate people to obey. In the late 19th century, various scholars began to develop criticisms
of this simple but powerful explanation of law, though the canonical refutation of Austin’s
positivism did not emerge until the mid-20th century.

Philosophy of law from the early 20th century

The 20th century was very much the century of legal positivism: the two preeminent figures
in the philosophy of law, the Austrian-born jurist Hans Kelsen (1881–1973) and the English
legal theorist H.L.A. Hart (1907–92), both developed influential versions of a positivist theory
of the nature of law.
Defenders of ani-positivist views, such as the American constitutional lawyer Ronald Dworkin,
and the Australian Thomist John Finnis, developed their views by way of response, in particular
to Hart. At the same time, Hart’s most-prominent student and the most-influential figure in
late 20th-century philosophy of law, Joseph Raz, worked within the positivist framework,
developing distinctive positions growing out of both Kelsen and Hart. During the same period,
there also emerged “realist” schools of legal philosophy—one in Scandinavia and one in the
United States—that were basically positivist in orientation but were concerned with very
different philosophical (in the case of the Scandinavians) and practical (in the case of the
Americans) questions from those considered by Kelsen and Hart.

Positivism, as propounded by Hans Kelsen

Kelsen, a fierce opponent of natural-law theories, identified the central problem of the
philosophy of law as how to explain the normative force of law—i.e., law’s claim to rightfully
tell people what they ought to do (such that, for example, they have an obligation of obedience
to the law). (Kelsen also thought that law’s commands are directed most fundamentally at
officials of the legal system, such as judges, telling them what sanctions to apply to citizens on
the basis of the latter’s conduct.) He rejected the idea that law’s normative force could derive
from its moral status: like all theorists in the legal-positivist tradition, he acknowledged that
laws could fail to be morally justified.
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When a judge hears a case and decides for the plaintiff, ordering the defendant to pay
monetary damages, the judge’s authority to do so derives from rules of the legal system that
authorize the judge to render such decisions, subject to various procedural and substantive
constraints enacted by a legislature. But what gives those rules their authority? Perhaps it is
the constitution, the foundational document of a legal system, which establishes a legislature
entitled to enact procedural and substantive rules governing court decisions and specifies who
can exercise the power of a judge and under what circumstances. But then what gives the
constitution the right to do that? An infinite regress now looms if one posits some further
authority-granting source.

Kelsen was strongly influenced by Neo-Kantian tendencies in German-speaking philosophy in

the early 20th century and was accordingly attracted to the “transcendental” strategy of
argument that Immanuel Kant made famous: given the existence of some undisputed
phenomenon, one is entitled to infer or presuppose the existence of whatever is needed to
explain it. Given the undisputed fact that law claims authority, the only way to avoid an infinite
regress is to assume that the authority of the foundational document or constitution derives
from a “basic norm” (Grundnorm in German), the substance of which is something like “the
constitution is to be obeyed.”
Kelsen defended a “pure theory” of law—that is, one that purports to explain law’s
normativity without invoking any empirical facts about people’s beliefs, attitudes, or behaviour.
A fatal problem with transcendental arguments, however, is that they are vulnerable to
objections based on denying the reality of what the theory purports to explain: the laws do
claim authority, but perhaps that authority is merely apparent, simply unreal. Hart’s version
of legal positivism eschewed transcendental arguments but took seriously the same basic
problem that animated Kelsen’s theory of law.

H.L.A. Hart
Hart, who spent his academic career at the University of Oxford, the centre of the “ordinary
language” framed his theory as an attempt to understand the ordinary concept of law—the
concept familiar to any citizen of an advanced modern legal system. Hart criticized the
command theories of law associated with John Austin and Bentham because of their failure
to make sense of all those familiar instances of laws that confer legal powers on individuals
rather than commanding them to abstain from particular conduct on pain of punishment. A
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criminal prohibition on murder may be a command backed by a threat of sanction, but a law
authorizing an individual to make a valid will disposing of his property after his death is not.
Power-conferring rules are central features of legal systems, and command theories, Hart
contended, cannot explain them.

The problem, Hart thought, went farther. The familiar idea that all law essentially involves
sanctions is also mistaken, whether in the form of Austin’s view that every law is a command
backed by a threat of punishment or of Kelsen’s view that laws tell officials when to sanction
citizens. The problem, according to Hart, is that one typically thinks of law as, at least
sometimes, imposing obligations to act (or not to act) in certain ways. If law is essentially
about threats, however, then talk of having an obligation makes no sense: no one thinks, after
all, that one has an obligation to hand over one’s money to a robber, even if doing so would
be prudent in the circumstances. Hart, in short, agreed with Kelsen that the law claims a kind
of authority, a right to tell people what they ought (or ought not) to do, not simply what they
must (or must not) do on pain of penalty.
Hart’s solution to the problem that Kelsen identified is, however, very different. Hart claimed
that wherever a legal system exists, there also exists a “rule of recognition” that specifies the
criteria of legal validity that any rule must satisfy in order to count as a rule of that legal
system. But a rule of recognition is not a Grundnorm, a transcendental presupposition of legal
thought. It is rather a complicated psychosocial phenomenon (an instance of what Hart called
a “social rule”) whose existence and content are established by the sociological fact that
officials of the legal system converge on certain criteria of legal validity and by the psychological
fact that such officials view those criteria as obligatory. Thus, the U.S. Constitution is a source
of legal authority in the U.S. legal system because almost all judges treat constitutionality as a
criterion of legal validity (a law that is unconstitutional is not enforced by the courts) and act
and talk as if they have an obligation to do precisely that.
Hart’s positivist theory of law is, then, “impure”: contrary to Kelsen, Hart claimed that the
normative character of law can be explained in terms of complicated facts about the behaviour
and attitudes of officials of the legal system, primarily judges. To be sure, Hart agreed with
Kelsen that laws may be morally unjustified, but, unlike Kelsen, he thought that the existence
of law is, fundamentally, dependent on nothing more than the conventional practices of judges.

Joseph Raz
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Raz explored in greater depth than Hart or Kelsen the idea that law claims the right to tell
citizens what they must do—what Raz called law’s claim to authority. But what is authority?
Raz defended the “service conception” of authority, according to which law is genuinely
authoritative insofar as it helps the subjects of the law to do what they really ought to do
better than they would without the mediation of the law’s directives. Of course, many laws
fail to satisfy this demanding standard, but Raz also argued that only a rule of recognition
employing source-based criteria of legal validity—criteria such as “enacted by parliament” or
“proclaimed by the king”—could possibly possess genuine authority. The reason, according
to Raz, is that if what the law tells someone to do is not intelligible independent of the moral
and other reasons on which it is based, then the law cannot possibly perform a service for its
subjects. Raz’s version of legal positivism thus incorporated the idea that norms are legally
valid—i.e., part of the law—only in virtue of their social source. In that respect, Raz recast
themes from the command tradition of the early modern period, in particular the idea that
law is a system of norms that play a special role in the practical reasoning of its subjects and,
with Hobbes and Bentham, that the contents of those norms must be identifiable without
recourse to controversial moral argument.

Ronald Dworkin
Although legal positivism thus triumphed in the 20th century, it was not without critics. Ronald
Dworkin, for example, argued that moral reasoning is essential for resolving difficult
constitutional questions. Hart had never denied that claim, however; what he denied was only
that such moral considerations were necessarily part of the law, unless they were also part of
society’s rule of recognition. (Raz, as noted above, rejected the latter possibility: when judges
rely on moral considerations, they are exercising discretion, not making decisions required
by law.) Dworkin also argued that Hart’s account of the rule of recognition as a convergent
practice of officials to which they took a critical reflective attitude could not explain why such
officials had any obligation to comply with a rule so conceived. But it was never Hart’s aim to
show that officials had an obligation to apply particular criteria of legal validity, only to explain
the necessary conditions for the existence of a legal system. Hart recognized that officials
might treat the rule of recognition as obligatory for many different kinds of reasons, and he
also recognized that they might be wrong to do so.
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In his later work Dworkin expanded on the idea that moral considerations figure in
determining what the law is. He now argued that whatever follows from the best
“constructive interpretation” of the source-based norms of the legal system (such as legislative
enactments and prior court decisions) constitutes the law of that system. A constructive
interpretation in Dworkin’s technical sense is one that seeks both to explain the previous
source-based norms in terms of some more-general moral principles about fairness and justice
for which they stand and to rely on those explanatory moral principles to provide an attractive
moral justification for the legal system as it exists. Dworkin’s view, which attracted almost no
adherents, had the odd consequence that no one might know what the law of the legal system
is, since no one might yet have thought of the best constructive interpretation. Hart
interpreted Dworkin as simply describing the rule of recognition of Anglo-American and other
common law legal systems, in which judges do try to produce a kind of “principled coherence”
between their decision in the current case and prior court decisions.

John Finnis
John Finnis took a more-ambitious philosophical tack against positivism than Dworkin did. He
argued that any theory of a social phenomenon, including law, must identify its “central” cases,
since the goal of any theory is to describe the central or important features of the subject
matter in question. The central cases of law, according to Finnis, are those in which there
exists a genuine moral obligation to obey the law. Finnis thus treated as the task of legal theory
the identification of those characteristics of legal systems that are so morally good as to justify
anyone’s obedience. Hart agreed that the philosophy of law should focus on central cases, but
he also believed, contrary to Finnis, that the central cases could be identified without regard
to their moral quality. Indeed, Hart’s ambition was to explain the nature of laws and legal
systems that ordinary people would typically identify as such.

The problem of the Nazis

Finnis’s approach highlighted a central problem looming over legal philosophy beginning in the
second half of the 20th century: namely, what to say about the Nazis. By all appearances, the
Nazis had a legal system, one that authorized the confiscation of life, property, and liberty on
the basis of religion and ethnicity. Yet after World War II, Nazi officials were tried, convicted,
and sometimes executed for their “lawful” actions. For Finnis and some other natural-law
theorists, Nazi law was not a “central case” of law but a defective instance of it; thus, it was
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proper to prosecute Nazi officials for acting in grossly immoral ways. By contrast, Hart and
other legal positivists, in the spirit of Hobbes and Bentham, sought to separate the question
of whether the Nazis had law—it certainly looks as though they did, in almost all respects—
from the question of whether their laws were just (they were not) and whether the morally
grotesque character of the actions of Nazi officials should warrant punishment, even though
the actions were lawful. For Hart, distinguishing between the question “What is law?” and the
question “What is morally right?” has the salutary effect of reminding people that not all laws
are morally good and that officials may be held accountable even for their lawful actions when
those actions are sufficiently wicked.

Realism
As the legal-positivist position, whether Kelsenian or Hartian, became the dominant view
among philosophers of law in the 20th century, there developed alongside it an influential but
very different approach to thinking about law, now usually described as legal realism. The two
most-important figures in this regard were the Dane Alf Ross (1899–1979) and the American
Karl Llewellyn (1893–1962), though they were very different theorists. Ross was a systematic
philosopher who taught in a law faculty, Llewellyn a philosophical novice but an extremely
accomplished and influential lawyer and professor. Both kinds of realism, Scandinavian and
American, were skeptical of the idea that written laws really explain the behaviour of judges,
and both depended upon a naturalistic worldview in which reality was presumed to be as the
sciences described it.

Karl Llewellyn
The founding figure of American legal realism is often said to be the jurist Oliver Wendell
Holmes, Jr.
His 1897 lecture “The Path of the Law” (published in the Harvard Law Review) sounded
many of the major themes of realism: the difference between law and morality, the claim that
law is often on its face indeterminate in its application to particular cases, and the suspicion
that in deciding cases judges are often influenced by nonlegal considerations—for example,
their views about economic policy or fairness.
According to Llewellyn, in most cases that reach the appellate level of review, the law is
generally indeterminate in the sense that the authoritative legal sources (such as statutes,
precedents, and constitutions) do not justify a unique decision. Indeterminacy, according to
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Llewellyn, arises primarily because of the existence of conflicting but equally legitimate canons
of interpretation for these sources, so the very same legal source could be read in at least
two different ways. For example, Llewellyn demonstrated that U.S. courts had endorsed both
of two contradictory principles of statutory construction, namely: “A statute cannot go
beyond its text” and “To effect its purpose, a statute may be implemented beyond its text.”
If a court could properly appeal to either canon when faced with a question of statutory
interpretation, it could legitimately arrive at least two different interpretations of the meaning
of the statute in question. Regarding such cases, the question posed by the realists was: Why
did the judge reach the conclusion he did, given that law and principles of legal reasoning did
not require him to do so? Llewellyn made a similar argument about conflicting but equally
legitimate ways of interpreting precedent, which he called the “strict” and the “loose” views
of precedent. According to Llewellyn, a judge almost always has the latitude to characterize a
decision in an earlier case in either a highly fact-specific way, so as to distinguish it from the
present case, or in a way that abstracts from the specific facts of the earlier case, so as to
make it binding in the present case. Thus, according to Llewellyn, judges are never really
constrained by precedent.

G. Functions and Limitations of Law

Law is a formal means of social control.

Society uses laws (rules designed to control citizen’s behaviors) so that these behaviors will
conform to societal norms, cultures, mores, traditions, and expectations. Because courts must
interpret and enforce these rules, laws differ from many other forms of social control. Both
formal and informal social control have the capacity to change behavior.
Informal social control, such as social media (including Facebook, Instagram, and Twitter) has
a tremendous impact on what people wear, how they think, how they speak, what people
value, and perhaps how they vote. Social media’s impact on human behavior cannot be
overstated, but because these informal controls are largely unenforceable through the courts
as they are not considered the law.
Laws and legal rules promote social control by resolving basic value conflicts, settling individual
disputes, and making rules that even our rulers must follow. Kerper (1979) recognized the
advantages of law in fostering social control and identified four major limitations of the law.
First, she noted, the law often cannot gain community support without support of other social
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institutions. Consider, for example, the United States Supreme Court case of Brown v. Board
of Education of Topeka, Kansas, 347 U.S. 483 (1954), which declared racially segregated
schools unconstitutional. The decision was largely unpopular in the southern states, and many
had decided to not follow the Court’s holding. Ultimately, the Court had to call in the National
Guard to enforce its decision requiring schools to be integrated.) Second, even with
community support, the law cannot compel certain types of conduct contrary to human
nature. Third, the law’s resolution of disputes is dependent upon a complicated and expensive
fact-finding process. Finally, the law changes slowly.
Lippman, also noted that the law does not always achieve its purposes of social control,
dispute resolution, and social change, but rather can harm society. He refers to this as the
“dysfunctions of law.”
“Law does not always protect individuals and result in beneficial social progress. Law
can be used to repress individuals and limit their rights. The respect that is accorded to
the legal system can mask the dysfunctional role of the law. Dysfunctional means that
the law is promoting inequality or serving the interests of a small number of individuals
rather than promoting the welfare of society or is impeding the enjoyment of human
rights.”

Similarly, Lawrence Friedman has identified several dysfunctions of law:

i) legal actions may be used to harass individuals or to gain revenge rather than
redress a legal wrong;
ii) the law may reflect biases and prejudices or reflect the interest of powerful
economic interests;
iii) the law may be used by totalitarian regimes as an instrument of repression; the
law can be too rigid because it is based on a clear set of rules that don’t always fit
neatly;
iv) the law may be slow to change because of its reliance on precedent (he also notes
that judges are also concerned about maintaining respect for the law and hesitate
to introduce change that society is not ready to accept);
v) that the law denies equal access to justice because of inability to pay for legal
services;
vi) that courts are reluctant to second-guess the decisions of political decision-
makers, particularly in times of war and crisis; that reliance on law and courts can
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discourage democratic political activism because individuals and groups, when they
look to courts to decide issues, divert energy from lobbying the legislature and
from building political coalitions for elections; and
vii) that law may impede social change because it may limit the ability of individuals to
use the law to vindicate their rights and liberties.