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‘What is law?’ is a question which receives very different answers. In the natural and social sciences laws are understood to be universal truths or regularities (for example, the laws of thermodynamics, or the laws of motion, or the laws of supply and demand). Outside of this context all may agree that laws in post-tribal societies are binding prescriptive rules, enforced by law courts which adjudicate on whether persons have broken the law, and arbitrate decisions between quarrelling parties, However, aside from such banalities there is considerable dissensus on the subject of law.
Historically in Christian, Islamic and Judaic thought law was considered the commandments of God—whether revealed through the Bible or the Qur\'an, or interpreted by the Church or religious scholars—and law encompassed private morality as well as public conduct. The theory of natural law suggests that all legal systems are attempts by human beings to reach the legal system which would be adopted by rational human beings, a theory which creates more problems than it solves. The theory of legal positivism, by contrast, defines a legal system as a set of conventions established by a law-making body: a law is a law if it is (explicitly or implicitly) made by an authorized law-making body; whether the law is moral or is good law is a separate matter.
The domain of law as a subject of intellectual inquiry, and as a set of social practices is enormous. For example, if they make these distinctions at all, legal systems differ among themselves and over time in what they regard as public and private law, in what they deem as criminal or civil law, and in what role they give to the judiciary in reviewing the law-making process. Legal systems also differ in the procedures they use for implementing the rule of law. These variations are the subject matter of comparative law.
Two of the most vexed political subjects are the relationships of law to morality, and of law to politics. For legal positivists it is clear that what the law forbids may be morally permissible, and indeed morally required; and that what is morally wrong may be permitted by the law, or required by the law. Other views of law find such sharp distinctions more problematic. In Western liberalism it has been customary to distinguish matters of private moral conduct, which should not be the subject of legal regulation, from matters of public law. This reasoning is the source of the liberal view that the state and the law have no rightful place in the bedrooms of consenting adults. Moral conservatives, whether Christian or Muslim believe by contrast that the law should be used as a guardian of morality, in order to preserve a virtuous social order—a viewpoint shared by many feminists.
The relationships between law and politics are manifold, but the major sources of controversy in liberal democracies are easy to state: they are over the extent to which judges should be able to make public policy, creatively interpret constitutional or other law, and bring judicial regulation to bear on a policy domain previously free of such regulation. BO\'L
See also rule of law; sovereignty.Further reading J.M. Finnis, Natural Law and natural Rights; , H.L.A. Hart, The Concept of Law; , N. MacCormick, Legal Reasoning and Legal Theory. |
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