Jeff Gabriel Cruz

2017-89668
Legal Theory
I-A

The Concept of Law: Chapter I

The persistence of the inability to answer the question “What is law?” seems
strange in contrast to the ability of any man to cite easily examples of the same. They
can identify features in that law: forbids certain behavior, requires compensation for
injuries caused, specifies procedures for contracts, determine and create obligations,
punish acts forbidden, and even make new rules and abolish old ones. Primitive and
international law are two fields of law that further aggravate the problem. Both cannot
be enforced by reason of its lack of legislature, but both enjoy the honor if being
labeled ‘laws’.
In the debate of the definition of law, three recurrent issues arise. The most
prominent feature of law is that it makes certain conduct in some sense obligatory.
Two of the three issues are in such a way. First, when one man gives up his purse
because he was held up at gunpoint, we refer to the way in which he was forced to do
so by saying he was obliged to. This issue is likened to a statue, albeit the only
difference is a minor one: that statures are addressed generally to a group which obeys
such orders. But since penal statutes declaring certain conduct to be an offense and
punishing the agent for its fulfillment/omission, how is it the State different from a
gunman? This is essentially a command. The second issue deals with how both moral
rules and the legal system makes certain areas of conduct from the free option of the
individual to do as he likes, the latter by orders being backed by threats connected
with certain aspects of morality. They suggest that law is a branch of morality or
justice and that its congruence with them rather than its incorporation of order and
threats is of its ‘essence’. The third issue perennially prompting the question “What is
law?” is a more general one. In its face, the statement that a legal system consists of
rules seems easy to understand. But upon examination of what rules are, many
divergencies in opinion appear. There are many types of rules. Some rules are
mandatory and some are prohibitive. Clearly illustrated in the view of a game: some
rules veto certain conduct, some rules determine what to do to score.
In summary, these are the three issues: How does law differ from and how is it
related to orders backed by threats? How does legal obligation differ from, and how is
it related to, moral obligation? What are rules and to what extent is law an affair of
rules? In coming to the conclusion, we cannot use the form of definition (per genus et
differentiam) which we use to define a triangle or an elephant because it is not always
available (even if it is, its success depends on conditions often not satisfied). The
three issues are too different from each other to be capable of this sort of resolution.
Yet there is the instinct that brings these issues in the discussion of the definition of
law that means that such aren’t misguided because it is possible to isolate and
characterize a central set of elements which form a common part of the answer to all
three. The purpose here is not to define law, but to advance legal theory by providing
an improved analysis of the distinctive structure of a municipal legal system and a
better understating of the similarities and differences between law, coercion, and
morality, as types of social phenomena. The set of elements to be discussed in the
succeeding chapters serve this purpose in ways demonstrated in the rest of the book.