CONCEPT OF LAW
A legal system is the most explicit, institutionalized,
and complex mode of regulating human conduct. At
the same time it plays only one part in the congeries
of rules which influence behavior, for social and moral
rules of a less institutionalized kind are also of great
importance. The complexity of the organization and
operations of a legal system has led to disagreements
about the best terms in which to describe the nature
of law, while the coexistence of law with social and
moral rules affecting conduct has generated discussion
about the exact nature of the relationships between
the different sets of rules. A further source of difficulty
is caused by the opposition or tension that sometimes
exists between legal and moral rules, as when a legal
prescription appears to violate the dictates of con-
science. This has led to discussion of the relationship
between the concept of law and ethical criteria.
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.
II
The pattern of discourse about the concept of law
in modern legal philosophy emerges in the nineteenth
century with the work of the English jurist, John
Austin. Austin described law as a set of general com-
mands issuing from a sovereign. The sovereign he
defined as a determinate human superior who receives
habitual obedience from the bulk of a given society
and is not himself in the habit of obedience to any
superior. The command of the sovereign is charac-
terized by the sanction which is held out as a threat
in the event of noncompliance and such a command
backed by a sanction imposes a duty on the citizen.
Command, sanction, and duty are thus key terms in
the Austinian scheme.
Austin was bent on freeing the concept of positive
law from entanglements and confusion with notions
of justice and natural law. Not only did he select hard
and concrete key terms for his description of law but
he also insisted explicitly on the separation of law and
morals. “The existence of law is one thing; its merit
or demerit is another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an
assumed standard, is a different enquiry” (1954, p. 184).
This severance of the realms of law and morality has
characterized a continuing school of legal philosophy
which is sometimes knows as analytical positivism,
signifying its preoccupation with the analysis of the
content and structure of law as found (positum) in a
given legal system. Austin's position on this issue is
reiterated in the work of the most distinguished con-
temporary analytical positivist, H. L. A. Hart. But
while the positivist thesis on the separation of law and
morals has held firm, there has been radical revision
since Austin's time of the terms used in elucidating
the nature of positive law.
Here the foremost architect of the modern positivist
position has been the Austrian legal philosopher, Hans
Kelsen, who has lived for many years in the United
States. Kelsen, in two celebrated works, Allgemeine
Staatslehre (General Theory of Law and State, 1925)
and Reine Rechtslehre (The Pure Theory of Law, 1934),
departed from Austin's attempt to describe law in
terms of a human commander laying down rules for
subjects and substituted as his key concept the notion
of laws as consisting of normative ought-propositions
which, in a legal system, are all linked together and
acquire unity through their common derivation from
a basic ought-proposition or set of propositions which
he called the Grundnorm. The most concrete and par-
ticular propositions of law in a legal system ultimately
derive their validity through a process of tracing back
to the basic norms of the system. So the proposition
that X ought to pay Y $100 may be valid because it
is contained in a contract duly made in conformity with
general rules of the legal system which prescribe how
binding agreements may be made. These general rules
in turn are valid because they are contained in a statute
or in decisions of the courts. The statute or decisions
of the courts are valid because they have been enacted
or decided in conformity with constitutional provisions
which prescribe the proper procedures for enacting
statutes and for appointing judges with definitions of
their jurisdiction and powers. If we ask why the provi-
sions of the constitution are valid we must, according
to Kelsen, simply accept as necessary for compre-
hending the existence of a legal system the proposition
that the provisions of the constitution ought to be
complied with.
It is apparent that when Kelsen uses the term “valid”
with reference to a particular rule of the system it has
no connotation of approbation or moral approval but
signifies only that the rule has been identified as be-
longing to the system by the criteria of recognition.
To speak of the basic norm as “valid,” however, intro-
duces an element of confusion, since this cannot be
a question of identification by further formal criteria
of recognition, but must refer either to an empirical
observation about actual acceptance in society or to
a moral precept that functioning coercive orders ought
to be obeyed. The failure to clarify the precise import
of his assertion that the basic norm has validity has
been a source of difficulty with Kelsen's theory of the
nature of law.
With respect to the relation between law and morals
Kelsen is squarely within the positivist tradition. In
What is Justice?... (1956, p. 4) he tells us that
questions of justice “cannot be answered by means of
rational cognition,” and takes up a thoroughly non-
cognitivist position in ethics, asserting that choices
about values and ends ultimately rest on intuitions. His
basic concept of the Grundnorm can encompass the
totalitarian society as easily as the democratic, vicious
and depraved laws as well as just and beneficent ones.
Kelsen's system is a powerful demonstration of the
unity and scheme of action of a legal system. His
pyramidal image of a set of norms linked ascendingly
to a basic norm reveals the essentially common features
of the legislative and judicial roles, for both judge and
legislator are creating new legal norms while at the
same time drawing upon and applying superior norms
which confer validity upon their actions. Just as Austin
insisted on the central place of sanctions in a legal
system, so does Kelsen find the distinctive element of
law in the element of coercion institutionally applied
through the normative structure. For Kelsen all legal
norms are directives to officials to apply force in cer-
tain prescribed circumstances though this may not be
superficially obvious. For example, a rule that directs
that a will should have two witnesses appears to say
nothing directly about the imposition of coercion. For
Kelsen, however, the aspect of the rule which gives
it a legal character is to be found in the proposition
that coercion will be applied to those who seek to act
in defiance of the terms of a valid will. This, in Kelsen's
scheme, is the primary rule, and the direction to pri-
vate citizens about how they should make a will is a
secondary or derivative rule. The terms “secondary”
or “derivative” here do not imply any sense of prece-
dence or superiority but are only a figurative way of
expressing the notion that the distinctive characteristic
of a legal rule is in its reference to the prescribed
circumstances for the application of institutional force.
The most powerful and subtle contemporary expo-
nent of analytical positivism is the English jurist, H.
L. A. Hart. In his book, The Concept of Law (1961),
Hart offers a devastating critique of Austin's attempt
to elucidate the nature of law in terms of a human
superior issuing commands, backed up by sanctions
which create duties. This elucidation, Hart argues, will
not serve to explain the nature of laws which confer
powers (such as the power to make a will) and which
cannot be seen as imposing duties, while the notion
of law being founded in the habit of obedience to a
sovereign commander does not explain the continuity
of a legal system which, by the operation of basic
constitutional procedures of succession, proceeds un-
interruptedly after the death of the head of state. Who,
after all, are those determinate human beings whose
commands the law could be said to be? The members
of the legislature know only a little of the law and
are themselves bound by the law. (Similar criticisms
of the Austinian position have been made by Scandi-
navian jurists, notably Karl Olivecrona.)
Hart suggests that the key to understanding the
nature of a legal system is to distinguish between what
he calls primary and secondary rules. Primary rules
are those which impose duties and secondary rules are
those which confer powers. It is the union of primary
and secondary rules which gives a legal system its
dynamic, highly structured, and rapidly creative char-
acter as compared with a body of customary rules.
Secondary rules are rules about rules. They provide
procedures for the creation, modification, and abroga-
tion of primary rules. At the base of a legal system
we find secondary rules which are fundamental rules
of recognition and which embody the constitutional
procedures for valid lawmaking in the system.
It is apparent that Hart's analysis owes a great deal
to the earlier work of Kelsen but it differs in some
significant aspects. For Hart the basic rules of recogni-
tion are not described in terms of validity which Kelsen
used in constructing his concept of the Grundnorm.
The existence of a basic rule of recognition is presented
rather as an empirical phenomenon evidenced by the
actual acceptance of the rules in a given society. The
notions of obligation and duty are also analyzed by
Hart in more subtle and complex terms than Kelsen's
reduction of all legal rules to a uniform pattern of
directives to officials about the application of coercion.
Hart elucidates the meaning of statements about duty
and obligation in the context of a legal system as
involving social practices of reference to certain stand-
ards. In the light of these standards we justify criticism
and condemnation of the behavior of others and the
application of sanctions to them, and we offer reasons
to explain and justify our own behavior. The mainte-
nance of a general system of coercion in society no
doubt psychologically sustains feelings of obligation,
but statements of obligation are not simply statements
of the probability that coercion will be applied. Our
ordinary speechways evidence this, for we do not cease
to speak of a person as being in breach of an obligatory
rule simply because he has effectively removed himself
from the jurisdiction and so from any threat of sanction.
Statements of obligation do entail a general acceptance
in society of the basic rule which is taken to validate
the primary rules which formulate particular duties,
but this is to be distinguished from an individual's
acceptance of any particular rule. So if I say that X
has broken his legal obligations by smoking opium, this
does imply my recognition that the rule against smok-
ing opium (primary rule) is properly derived from the
constitutional procedures for lawmaking in the juris-
diction (basic rule). But it does not logically entail the
prediction that X will probably be prosecuted and
punished, and it says nothing at all about what I or
X may feel about the sense and wisdom of the particu-
lar law in question.
III
Hart's introduction of the concept of acceptance of
a basic rule as the foundation of the legal order imme-
diately raises questions about the connection between
analytical and philosophical enquiries into the nature
of law and, on the other hand, enquiries which employ
the concepts and methodology of the social sciences.
Law is, after all, eminently a social phenomenon. A
legal system is more than a structure of rules on paper.
It is a system of rules in action, for without some
minimal effectiveness in the life of a community a set
of rules would not be said to constitute a legal system
at all. This was recognized by Kelsen in his statement
that a Grundnorm must be minimally effective, and
by Hart in his reference to the acceptance of basic
rules of recognition.
Long before the rise of the modern social science
disciplines European jurists had concerned themselves
with the social aspects of law through the medium of
studies in legal history. In the eleventh century the
study of Roman law was revived in the universities
of Italy and France, and this study deepened as Roman
law was received as the foundation of the legal systems
of Western European societies. The basis for modern
scholarship was laid by social interpretation of law in
the work of the French jurist, Jacques Cujas, in the
sixteenth century, and there is a continuing link be-
tween this early movement and the great German
school of historical jurisprudence in the nineteenth
century whose finest exponent was F. K. von Savigny.
These historical jurists were not very consciously or
explicitly sociological in their emphasis, but the neces-
sity for them to elucidate doctrines of Roman law
in terms of historical change inevitably led them to
advert to the relationship between legal concepts and
social phenomena. In this way they lead into the
Germanic school of sociological jurisprudence which
counts as its leading figure the Austrian jurist, Eugen
Ehrlich.
Ehrlich insisted that if our interest and enquiry are
into the forms of social control we must acknowledge
that formal law plays only a part, and sometimes no
part at all, even in areas where it purports to regulate.
A full statement of the “living law” which applies in
any sector of human conduct could be made only after
careful observation of actual behavior in that context.
After such observation we would often find that moral-
ity, custom, and commercial practice play a large part
as sources of the norms to which people actually ad-
here, and that in some instances the norms of positive
law are in practice largely ignored. As an analysis of
the reality of social regulation this is patently true, but
it is not particularly helpful as an elucidation of the
concept of law where the enquiry is rather into what
distinguishes the norms of positive law from those of
morality, custom, and commercial practice. If a rule
of positive law is in practice ignored both by citizens
and by law enforcement officials, this may be a good
reason for deciding that it is not a part of the “living
law” but it is not so clear whether we can for this
reason decide that it has also lost its character as posi-
tive law.
Ehrlich's insistence on a constant comparison of the
formal content of the norms of positive law with the
reality of social practice set a theme for legal philoso-
phy which has continued to be strongly influential in
the twentieth century. In Scandinavia a school of jurists
has developed who, in a strongly empiricist vein which
owes something to the logical positivist movement in
philosophy, have analyzed the concept of obligation
as it appears in a legal order in psychological terms.
The most interesting of these writers is the Danish
jurist, Alf Ross, who in his book On Law and Justice
(1958) invites us to begin an analysis of the nature of
a legal system by considering the analogy of the rules
of a game. He suggests that if we were watching two
people playing a game, say chess, and we wished to
know what were the rules of the game, we could not
necessarily rely on the statement of the rules as issued
by some governing body such as the International
Chess Federation, for it may well be that the two
players are not following all of these rules but are
playing some modified version of the game. But then
again we could not deduce the rules of the game simply
by watching and observing the moves that the players
made, for on that evidence alone we could never dis-
tinguish between what was done or not done because
of the demands made by the rules and what was done
or not done out of tactical considerations. To compre-
hend the rules of the game, suggests Ross, we have
to introduce the notion of an ideology common to the
players, so that the rules of the game they are playing
can be defined as those directives with which they
comply because they respond to them as binding.
When we transpose this analysis to the elucidation of
a legal system, the transition is not free from difficulty
for it is not immediately apparent whom we are to
characterize as the players of the law game. It seems
that for Ross the players are the officials of the system
so that a valid law for Ross would be a directive to
which officials adhere because they have a reaction of
feelings of obligation. He would thus accept a position
much the same as that of Ehrlich, to the effect that
a purported statement of law on the statute book which
is in fact ignored by officials is not to be regarded as
the statement of a valid law.
In the last few years of the nineteenth century a
distinctively American voice began to be heard in legal
philosophy, that of Justice Oliver Wendell Holmes.
Holmes turned the attention of jurists to the role of
the judge and the process of decision making as vital
elements to be incorporated in any elucidation of the
nature of law. Holmes's new emphasis was underscored
by the voluminous writings of the Harvard jurist,
Roscoe Pound, who also introduced the American legal
public to the thinking of European sociological jurists.
The seeds planted by Holmes and Pound germinated
in the third and fourth decades of this century in a
movement which is usually referred to as “legal real-
ism” and which continues to be influential in a modified
form.
The Realists reacted sharply against traditional pres-
entations of law as a system of rules which by reasoned
application to the facts of a dispute could yield a
predictable decision. They stressed the discretionary
role of judge and jury in finding the “facts” of a case,
and the further creative role in choosing between
competing rules and principles for application. They
deprecated the emphasis traditionally given in legal
education to the study of the decisions of appellate
courts, and stressed the importance of close observation
of the practice of decision makers at all levels of the
legal system. In their more extreme statements they
came close to denying that rules had any significant
role in a legal system and suggested that they were
mere tokens that were manipulated by decision makers
to give a facade of certainty and predictability to their
decisions. So Jerome Frank stressed the importance of
the psychology of the judge in his book, Law and the
Modern Mind (1930), and Karl Llewellyn in a famous
statement defined law as “what officials do about dis-
putes” (The Bramble Bush [1930], p. 3).
The Realist movement had a great impact on the
nature of legal education in the United States and so
indirectly on the whole English-speaking world. But
its philosophical position has come under telling attack,
particularly in the writings of H. L. A. Hart. He has
argued that the authoritative position of decision
makers is not a good reason for defining law in terms
of what these decision makers do. So the concept of
the “score” in a game would not be adequately eluci-
dated in terms only of what the scorer says. It is true
that the score is what the scorer says it is but this is
only to say something about it and something which,
taken alone, is positively misleading. For it suggests
that the score might be anything that the scorer at
his whim might choose to say and nobody who has
played or watched a game would accept that proposi-
tion. When we play baseball or football we do not
think we are playing a game of “scorer's discretion.”
We know that the scorer has discretion but one that
is limited by rules and exercised within the framework
of rules. Rules, Hart argues, have a core of settled
meaning and a penumbral area where their application
to a set of facts is debatable, and where no judgment
in either direction could in any absolute way be dem-
onstrated to be right or wrong. The American Realists,
he contends, were preoccupied with the problems of
this penumbra to an extent that led them to distort
the importance of rules in legal decision making.
IV
Contemporary discussion of the concept of law re-
veals several diverse trends in legal philosophy. One
of the most influential is the application of the English
school of analytical or ordinary language philosophy
to the analysis of the concept of law and legal concepts.
This is best exemplified in the work of H. L. A. Hart
referred to above. This movement is strongest in Eng-
land but it now has numerous practitioners in the other
English-speaking countries. While writers in this vein
are for the most part professional philosophers whose
work appears in the philosophical journals, this move-
ment in recent years has had some influence in law
schools and its impact can be detected in the writings
of some law professors and in the pages of the profes-
sional legal journals. While acknowledging the impor-
tance of properly conducted sociological studies, ana-
lytical jurists tend to concern themselves for the most
part with such questions as the elucidation of the
concept of a legal system; the relationship between
legal and moral obligation or between law and co-
ercion; concepts of responsibility; and, finally, analyses
of legal concepts such as rights, duties, powers, and
privileges.
In the United States the interest in analytical studies
has been accompanied by a continuing influence from
the Realist movement which in its central thesis and
concern was dubious about the utility of the analytical
approach. One of the leading exponents of a neo-realist
position is Myres McDougal, who insists on the impor-
tance of law in a modern community as a creative
instrument of social change. He exhorts decision
makers in a legal system to make the fullest and most
sensitive enquiries into the social implications of their
potential decisions, and to manipulate legal rules and
principles (which he refers to as miranda) in the inter-
ests of maximizing values which serve human dignity
on the national and international scene.
America, like Western Europe, has also witnessed
something of a revival in natural law thinking. The
barbarities of European dictatorships in this century,
and in particular the hideous brutalities of the Nazi
regime in Germany, left many jurists unhappy with
the traditional positivist insistence that an elucidation
of the concept of law could not properly include a
reference to any element of morality. The positivist
view that the criteria for identifying valid law were
purely formal was thought in some quarters to be one
reason why the German judiciary for the most part
so meekly accepted the Nazi edicts. One aspect of this
antipositivist reaction has been the strengthening of
the traditional Catholic school of neo-Thomist jurists
who have been very influential in French legal philos-
ophy in the twentieth century (e.g., Jean Dabin), and
also occupy a position of importance in the United
States.
In the secular world Lon Fuller in the United States
has consistently mounted attacks on the positivist posi-
tion which are expounded in his book The Morality
of Law (1964). Fuller stresses the purposive element
in the institution of law. He argues that often human
conduct and institutions can be best understood and
can only be adequately described in terms of their
purpose. A description of the arrangement of parts in
an automobile would give us very little insight into
its social significance, if we did not include in our
description a reference to its purpose in providing
transportation. The very notion of an automobile thus
incorporates the idea that it is at least minimally fit
to fulfill a certain social function. If we transpose this
argument into the discussion of a legal system then
we can also argue that not everything which has a
certain formal stamp is to be counted as law, but only
those collections of rules which at least minimally serve
human purposes of mutual regulation in the interests
of furthering certain basic values.
The overlap between the concept of law and moral-
ity is, in Fuller's view, further demonstrated by a con-
sideration of certain conditions which a legal system
must fulfill if it is to be minimally efficient in achieving
orderly regulation of social life. So we cannot con-
template an orderly society in which all rules would
be retrospective or where all rules were secret or where
tribunals in adjudicating disputes never made reference
to the rules that they were charged with applying. But
these conditions which are necessary for law to exist
at all are at the same time attributes of the concept
of justice, and in this way what Fuller calls the “inter-
nal morality of law” exhibits a necessary connection
with minimal notions of justice.
Of late there has been a concentration of interest
by legal philosophers on the nature of legal reasoning,
and this promises a revision in the analytical approach
to the concept of law. It is now acknowledged that
legal reasoning cannot be properly described according
to a deductive or an inductive model but consists rather
of a marshalling of more or less persuasive arguments—
which is peculiar only in the way in which a structure
of authoritative precedent is intertwined with the kinds
of criteria which go into everyday moral and pruden-
tial decision making. In this way a study of legal reason-
ing involves a revival of the classical notions of rheto-
ric. Important pioneering work in this field has been
done by the Belgian legal philosophers, Chaim Perel-
man and L. Olbrechts-Tyteca in their book Traité de
l'argumentation (1958). These studies cast some doubt
on the traditional positivist insistence on elucidating
the concept of law primarily in terms of a structure
of valid rules. If more diffuse principles and maxims
play a vital role at all levels of decision making in a
legal system, one can perceive how considerations of
ethics and policy are built into the fabric of the legal
system more easily than under the traditional positivist
position. The sharp separation between law and morals
which has characterized the positivist position becomes
difficult to defend when the close similarities between
legal and moral reasoning are pointed out. In this way
contemporary studies of legal reasoning hold out some
promise of bridging the ancient division between posi-
tivist and natural law traditions.
BIBLIOGRAPHY
John Austin, The Province of Jurisprudence Determined,
ed. H. L. A. Hart (1832; London, 1954; reprint New York).
H. Cairns, Legal Philosophy from Plato to Hegel (Baltimore,
1949). E. Ehrlich, Grundlegung der Soziologie des Rechts
(1913), trans. W. L. Moll as Fundamental Principles of the
Sociology of Law (Cambridge, Mass., 1936). W. Friedmann,
Legal Theory, 5th ed. (London, 1967). L. Fuller, The Moral-
ity of Law (New Haven, 1964). H. L. A. Hart, The Concept
of Law (Oxford and New York, 1961). G. Hughes, ed., Law,
Reason and Justice (New York, 1969). H. Kelsen, Allgemeine
Staatslehre (1925), trans. Anders Wedberg as General Theory
of Law and State (Cambridge, Mass., 1945; rev. ed., New
York, 1961); idem, Reine Rechtslehre (1934; 2nd rev. ed.,
Vienna, 1960), trans. Max Knight as The Pure Theory of
Law (Berkeley, 1967). K. Llewellyn, The Common Law
Tradition: Deciding Appeals (Boston, 1960). M. S. McDougal
and H. D. Lasswell, “Legal Education and Public Policy:
Professional Training in the Public Interest,” Yale Law
Journal, 52 (1943), 203. C. Perelman and L. Olbrechts-
Tyteca, Traité de l'argumentation, 2 vols. (Paris, 1958). A.
Ross, On Law and Justice (London, 1958; Berkeley, 1959).
J. Stone, Legal Systems and Lawyers' Reasonings (Stanford,
1964). R. Summers, ed., Essays in Legal Philosophy (Oxford
and Berkeley, 1968). R. Wasserstrom, “The Obligation to
Obey the Law,” University of California at Los Angeles Law
Review, 10 (1963), 780-807.
GRAHAM HUGHES
[See also
Equity; Justice; Law, Common, Natural and Nat-
ural Rights; Legal Precedent; Legal Responsibility; Posi-
tivism; Utilitarianism.]
