Theories of Law
Law is a body of rules that governs the behavior of people and determines their relationship to each other and with other legal entities. The term is also used to refer to the practice of law and the legal profession.
Theories of law are concerned with explaining how and why laws exist and how they function. The aims of theories of law vary: some are descriptive, others try to make predictions about the outcomes of particular cases, and still others seek to offer reductive explanations of some concept or conception of law.
Historically, the question about the nature of law has been driven by controversies about its normative status. Early legal positivists, like Bentham and Austin, held that law’s most significant characteristic is its coercive aspect – that is, its ability to enforce its practical demands on people by means of sanctions (either direct or indirect). Later legal positivists, including H.L.A Hart and Joseph Raz, have tended to deny this, arguing that coercion is not essential to law’s fulfillment of its social functions.
Another source of controversies about the normative status of law concerns whether or not it is possible to know what a given law really entails. This problem is largely a consequence of the fact that laws can appear to be of different kinds, even though they share certain features. Some laws are purely disciplinary, enforcing the rules of an established discipline. Other laws are merely administrative, enforcing the rules of a government bureaucracy. Still other laws are moral, promoting values or principles which must be respected by all members of society. These are arguably the most valuable and important of all laws.
The political and social foundations of law are also subject to considerable debate. In the modern world, a variety of new problems and issues have arisen that earlier writers on the subject did not anticipate. For example, the development of sophisticated policing and bureaucratic apparatuses for dealing with a wide range of social issues has raised questions about accountability, legitimacy, and other dimensions of the proper scope of law.
There are two main families of theories of law: descriptive and normative. Some descriptive theories of law attempt to identify the features of laws, such as their content and the ways in which they are formulated and enforced. These descriptive theories may be quite sophisticated, but they do not commit their authors to any particular evaluation of the worth or merits of law. On the other hand, some normative theories of law aim to explain how and why laws should be deemed to be good. The most well-developed of these are the utilitarian and natural law traditions, both of which arose in the 18th century. A further approach to the nature of law is offered by the jurisprudential school, which was shaped by the works of Max Weber. The jurisprudential school offers an alternative to the traditional, reductive theories of law which were largely influenced by positivism.