I
In primitive societies legal rules are often not sharply
distinguished from religious prescriptions and the dic-
tates of social morality or convention. It is only with
the emergence of law as a distinct and organized form
of social control in a relatively advanced civilization
that the problems mentioned above become apparent.
The Greek Sophists raised such questions in the fourth
and fifth centuries B.C. They distinguished between
nature (physis) and convention or law (nomos) and
regarded law as an artificial, man-made scheme of
regulation which encroached upon natural freedoms.
In their view there could be no explanation of law-
making and no reason for obedience to law other than
self-interest. This is a position which recurs throughout
later thought about law; it is echoed in the writings
of Thomas Hobbes. But it should be noticed that while
this position seems to deny the possibility of incorpo-
rating natural reason in positive law, it does at the
same time leave room for an argument that there are
good reasons for complying with the law. This argu-
ment would be that the security and relative satis-
faction of desires guaranteed by a legal system are to
be preferred to the constant conflict of an anarchic
society, where even the strongest cannot expect peace.
This argument from enlightened self-interest, so
strongly urged by Hobbes, also characterizes nine-
teenth-century utilitarianism. Discussion in the 1960's
of the obligation to obey the law tended to rely less
on utilitarian considerations and more on arguments
of fairness derived from notions of reciprocity (Was-
serstrom [1963], passim).
The Sophists' view of law as an arbitrary expression
of self-interest was opposed, even in the ancient world,
by the more hopeful tendencies of Platonic and Aris-
totelian thought. Plato denied that law could be con-
stituted by the mere application of coercive power;
he defined it rather as public regulations which express
the results of a process of reasoning (Laws 644D).
Aristotle, though he was concerned more with an anal-
ysis of justice than with the concept of law or a legal
system, spoke always of law as “order” or “reason.”
This opposition in Greek thought, between those who
viewed positive law as simply the working out of
coercive power and those who saw in law some neces-
sary expression of reason, continues to be a matter of
debate in modern legal theory.
