What Is Law?

What Is Law?


Law is a general term for a system of rules and standards governing human activities (Fitzgerald [Salmond] 1966: 233; Raz 1994: 256). It can encompass laws enacted by governments, written or tacit constitutions, legal rules embodied in contracts or other legal instruments, and the legal rights that individuals possess.

The broader conception of law as a “system of rules” is commonly referred to as “positive law.” In positive law, the law is the legal norms that are deemed valid by courts and legislatures and that govern human behavior.

This elaboration of positive law is sometimes referred to as “justification.” In the context of justification, a legal right is a reason for a legal holding or rule.

Depending on the way the right is used, it can also function as an end in itself, embodying the legal holding or rule that it is justifying. This can be accomplished in two ways: a) by justification itself, or b) by derivation from a more general right justifying the derivative right (Raz 1986: 168-170).

Justification may be an important part of legal reasoning (Fitzgerald [Salmond] 1968: 222), but it is typically not the sole determinant. Some instances of justification, such as those involving civil and human rights, are grounded in moral grounds or reasons for the common good, rather than strictly legal ones.

Other justifications are more purely utilitarian in nature, and can sometimes be quite arbitrary. Utilitarianism is often associated with the natural law tradition, and with legal rights that are rooted in a person’s personal or emotional values.

However, these views are not without flaws and limitations. While legal rights can provide some of the most effective limits on government coercion, they also can stifle or distort social and political life. In addition, judicial reluctance to apply positive law can sometimes lead to more unintended consequences than desired.

Ultimately, the justification of a legal right is determined by weighing its ingredients against its background social and political values and commitments. Those ingredients include the rights’ moral justification, the relevant background social and political commitments, expediency, and institutional considerations. In a few instances, the weight of a right can vary significantly, especially if it protects particularly significant interests or values.