What Is Law?

by Sophia

 WHAT'S COVERED

In this lesson, you will learn about the definition and prominent theories of law in the United States.
Specifically, this lesson will cover:

1. Nature of Law
If you were asked to define law, what would you say? Is “You should eat five fruits and vegetables a day” a
law? Obviously not, so what distinguishes law from mere suggestions or good advice?

The key difference is enforcement and consequence. If you don’t eat five fruits and vegetables a day, you are
not going to be imprisoned or fined. If you steal or embezzle, however, you may be prosecuted and face stiff
financial penalties and imprisonment. Law, therefore, is a set of rules that are enforced by a government
authority.

Now consider the nature of law.

⚙ THINK ABOUT IT

Would you say that the law includes only the actual words that are written, or does it also include reading
between the lines to discern the spirit of the law? Would you follow a law that you disagreed with, or
would you ignore such a law? Do you believe that what the law actually is matters as much as who
enforces it? Do you think that morality is a part of legality, or do you think that morality is wholly separate
from the law?
Based on the particular jurisprudence, or philosophy of law, to which one ascribes, these questions will
generate different answers. Not only will the answers to these questions differ, but the potential outcomes of
legal disputes can also vary widely, depending on one’s conception of what the law is. These differences
highlight fundamental disagreements over the nature of law.

 TERMS TO KNOW

Law
A set of rules that are enforced by a government authority.

Jurisprudence
The philosophy, science, or study of law..

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2. Theories of Law
The nature of law has been debated for centuries, giving rise to a general coalescence of ideas to create
particular schools of thought. Each theory can inform our understanding of legal issues by allowing us to see
the same thing from many different perspectives.

Moreover, depending on the philosophical perspective, there may be several possible outcomes to the same
legal dispute that are equally supportable. This understanding can help you identify common ground among
disputants as well as points of departure in their reasoning.

2a. Law as Power

IN CONTEXT

Consider tyrannical rulers who create arbitrary laws or bad laws. If the sovereign has the power to
enforce those laws, then regardless of the “badness” of the law, it is still the law. The Nazis executed
six million Jews pursuant to German law during World War II. Saddam Hussein routinely tortured and
executed political opponents and minority Sunni Muslims in Iraq under Iraqi law. The military in
Myanmar (known euphemistically as the State Peace and Development Council) imprisoned the
democratically elected and Nobel Peace Prize-winning prime minister of the country, Aung San Suu
Kyi, under color of law. Those who ascribe to the idea that law is power often argue that coercion is
an essential and necessary feature of law.

Many have criticized the understanding of law as nothing more than power backed by threats.

 EXAMPLE Some point out that if law is nothing more than power, then the subjects of the law are
simply at the mercy of whoever is in power. If we look at the U.S. system of government, however,
citizens generally do not feel that they are “at the mercy” of the government. This is because people
also have power. People can elect their government officials, and they can "vote out” government
officials who aren’t doing a good job. In this way, those in power are accountable to the people.
Other criticisms include the more piercing observation that not all law requires the exercise or threat of overt
power.

 EXAMPLE Many of our laws rely on economic incentives, rather than force of power, to encourage
compliance. Though penalty provisions may exist for violating those laws, those penalties may not be
driving compliance itself.

 TERM TO KNOW

Color of Law
The appearance of a legal right, without the substance; when a state actor takes illegal action,
abusing power, but is clothed with the authority of the state.
2b. Legal Positivism

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A competing view is that of legal positivism, whose proponents disagree that law is simply power. Instead,
they believe that the law is what the law says. Laws are written, human-made rules, so they are not drawn
from any source higher than humankind.

Legal positivists do not try to read between the lines. They may disagree with the law as it is written, but they
will acquiesce to the sovereign power and follow the law as it is written. They reject any belief that they have
an individual right to disobey a law that they happen to oppose, providing that the law is from a legitimate
source.

Positivists also believe that law is wholly separate from any consideration of ethics. Moreover, they do not
believe that people have intrinsic human rights other than those created by the law. This is very different from
a natural rights perspective, which is discussed later.

Positivists differ from those holding the view that law is simply power because positivists believe that valid law
must be created pursuant to the existing rules that allow the sovereign to create law. Under this way of
thinking, an arbitrary declaration of law by a sovereign who did not follow the rules for creating the law would
not be viewed as valid law. Additionally, positivists would not consider any rule or “law” created by an
illegitimate ruler as valid law. Consequently, a legal positivist would feel no need to obey an illegitimately
created “law.”

 EXAMPLE Consider the draft. Some people have a strong moral objection to engaging in armed
conflict with other human beings. However, a legal positivist would most certainly comply with a law
that required compulsory conscription, though he or she might use other legal channels to try to
change the law.
A common criticism of legal positivism is that it prohibits individuals from remaining true to their own
consciences when their consciences conflict with the laws of the sovereign. However, for a positivist, the
desirability of enacting a law that might be viewed as “good” or “bad” is not relevant for determining what the
law is. Some critics also point out that legal positivism is too limited in its conception of law.

 EXAMPLE At least some laws seem to reflect a moral stance. The prohibition of insider trading
(using nonpublic information to buy or sell a stock to make money) might be said to encompass the
idea of fairness, which is a moral consideration. Likewise, due process (fundamental fairness and
decency in government actions) might be said to encompass the ideas of both fairness and a moral
position against cruelty.
Moreover, not all law is the result of a sovereign-issued, written rule.

 EXAMPLE International customary law has developed through customary practices. It is valid law,
but it is not a set of rules handed down from a sovereign ruler.

 TERMS TO KNOW

Legal Positivism
A system of jurisprudence that holds that law is socially constructed based on norms of society. It
can be contrasted with a system such as natural law, which believes laws are based on morals
that are unchanging and determined by nature, not man-made.

Due Process
Legal proceedings that are regular, orderly, and based on established principles for the
enforcement and protection of rights.
2c. Legal Realism

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Another viewpoint is legal realism, which is the belief that the law itself is far less important than the
consideration of who is in the position to enforce the law. Like positivists, legal realists believe that law is the
product of human making. However, unlike positivists, they believe that the outcome of any issue that arises
under law is dependent on the person, such as a judge, who is in the position to exercise power under the
mantle of the law.

Additionally, realists believe that social and economic considerations should be brought to bear in legal
disputes, which may very well be “extra” considerations that are not captured by the written law itself.

IN CONTEXT

If a realist brought a dispute before a particular judge who was known to be unsympathetic to that
particular type of dispute, the realist would believe that the judge’s decision would reflect that
leaning. For example, if a dispute arose under the Clean Water Act, and the defendant was a legal
realist who believed that the judge was unduly harsh with environmental offenders, the legal realist
would not look to the actual words of the Clean Water Act itself to determine a likely outcome.
Instead, the defendant would view the judge’s personal and professional beliefs about water
pollution as determinative factors. Moreover, if the plaintiff in the same case were a realist who did
not believe that the Clean Water Act was very strong, that plaintiff might hope that the judge would
consider the social importance of clean water to human health, natural environment, and animals.

Critics of legal realism point out that those who are in the position to exercise the power of the law over
others should not circumscribe the checks and balances of our system of government by considering factors
outside of legitimate sources of law when making decisions.

 EXAMPLE Critics argue that judges should not use any factors other than the written law when
rendering decisions. Legal realists, however, point out that judicial interpretation is not only necessary
but was also considered by our Founding Fathers as a built-in check and balance to our other
branches of government.

 TERM TO KNOW

Legal Realism
A system of jurisprudence that holds that law is constructed by law makers (courts and
legislatures) for the good of society and does not come from any supernatural source..
2d. Natural Law
Natural law is the idea that humans possess certain inalienable rights that are not the products of human-
made law. Therefore, we can say that natural law differs from both positivism and realism in this important
respect. Humans are able to reason, and therefore they are able to discover moral truths on their own. They
are not automatons who require a sovereign power to tell them right from wrong.

Natural law adherents do not reject human-made law. However, they recognize that human-made law is
subordinate to natural law if the two types of law conflict.

Civil rights activists often rely on natural law arguments to advance their platforms. This is true today as well
as historically.

 EXAMPLE A civil rights advocate might point out that regardless of what the law “says,”

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 discrimination based on race is simply wrong. If the written law allowed racial discrimination, natural
law adherents would not recognize the law as valid.

 TERM TO KNOW

Natural Law
A system of jurisprudence that holds that law is based on a body of unchanging principles
brought forth by the nature of human beings and their environment.

 SUMMARY

In this lesson, you learned that the nature of law has been the subject of many disagreements
because a person's interpretation of the law is often determined by which of the theories of law that
person subscribes to. These theories include law as power, legal positivism, legal realism, and
natural law. Understanding these different theories can help you find common ground between
parties in a conflict, as well as recognize where their viewpoints differ.

Best of luck in your learning!

Source: THIS TUTORIAL HAS BEEN ADAPTED FROM (1) "BUSINESS LAW AND THE LEGAL ENVIRONMENT"
VERSION 1.0 BY DON MAYER, DANIEL WARNER, GEORGE SIEDEL, AND JETHRO K. LIEBERMAN.
COPYRIGHT 2011. ISBN 978-1-4533-3050-0. (2) "THE LEGAL AND ETHICAL ENVIRONMENT OF BUSINESS"
VERSION 1.0 BY TERENCE LAU AND LISA JOHNSON. COPYRIGHT 2012. ISBN 978-1-4533-2750-0 (LICENSEE
PRODUCT: BUSINESS LAW), BOTH SOURCES REPRINTED WITH PERMISSION FROM FLATWORLD.

 TERMS TO KNOW

Color of Law
The appearance of a legal right, without the substance; when a state actor takes illegal action, abusing
power, but is clothed with the authority of the state.

Due Process
Legal proceedings that are regular, orderly, and based on established principles for the enforcement
and protection of rights.

Jurisprudence
The philosophy, science, or study of law.

Law
A set of rules that are enforced by a government authority.

Legal Positivism
A system of jurisprudence that holds that law is socially constructed based on norms of society. It can be
contrasted with a system such as natural law, which believes laws are based on morals that are
unchanging and determined by nature, not man-made.

Legal Realism
A system of jurisprudence that holds that law is constructed by law makers (courts and legislatures) for

© 2023 SOPHIA Learning, LLC. SOPHIA is a registered trademark of SOPHIA Learning, LLC. Page 5
 the good of society and does not come from any supernatural source.

Natural Law
A system of jurisprudence that holds that law is based on a body of unchanging principles brought forth
by the nature of human beings and their environment.

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