An analysis of the concept of law is not a description of what the law is.

Do
you agree?

To begin a discourse upon the above statement, a definition of the critical

words analysis and description must first be ascertained in order to clarify
the question. Analysis refers to resolve or separate a thing in to the
elements or component parts1 while description conveys the act of giving
an account of2. The significant disparity between these definitions enables
a systematic and logical argument to be propagated.

An analysis of the concept of law begs the examination of the component

parts of a concept and their relationship with law. It does not claim that the
word 'law' must be in itself defined. The definition of law may be expected
to provide a rule or rules for the use of the term law which would negate
Vinogradoffs assertion that (jurisprudence is) a moral science, to be
understood and reasoned about from the inside. Indeed, The Concept Of
Law by Hart, does not explain, nor does it aim to explain the meaning of the
word law. It has nothing to say about divine law, mathematical or logical
laws, laws of nature, nor many others. Law is not ambiguous, and The
Concept of Law does not explain one of its meanings. When used in legal
contexts law bears the same meaning as in other contexts which suggests
that a definitive term is unnecessary for this essay. Those who offer
explanations of the concept of law usually do mean, as Hart did, to explain
the nature of a familiar social institution. The concept of law, therefore,
1
2

Chambers Dictionary, 2nd edition 1999

Ibid

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cannot be manifestly defined. It can be elucidated, but only as a social

phenomenon. Concepts, as objects of philosophical study, as the target of
conceptual analysis or elucidation, are a philosophical creation.3

As a result, the nature of an institution understood by our concept of law

makes the inquiry parochial rather than universal. There is no one concept of
law, and to refer to the concept of law is to mean the concept relevant to our
society. Our possession of the concept is logically independent of the fact
that we live in a political community governed by law. However, Dworkins
theory of law assumes that an awareness of the concept of law is necessary
for the existence of law in any society; that the concept of law is part of the
practice of law.4 Therefore, to the extent that the inquiry is limited to the
nature of law as understood in accordance with our concept of, it is a
parochial study of an aspect of our culture rather than a universal study of
the nature of law as such. While the concept of law is parochial however, an
investigation into it is universal in that it explores the nature of law,

As the Oxford English Dictionary explains, the nature of a thing consists of:
the essential qualities giving it its fundamental character. Following on
from this, explaining a concept is close to explaining the nature of what it is
a concept. The explanation of the nature of law is the primary task of the
theory of law. Explaining the nature of law is to explain how people
perceive the law- it is to almost describe the function. Understanding the
theory consists of necessary truths for only necessary truths about the law
reveal the nature of the law. However, with the many differing perceptions
3
4

Raz, 1998 #1
Dworkin, R. M., Laws Empire (Cambridge, Mass: Harvard University Press 1986), ch.1.

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upon legal theory, for example Finnis, the positivist who refutes these
claims (that natural law does not necessitate a belief in morality) does not
deny the true doctrine of natural law contradicts the notion of necessary
truths. This statement would then logically necessitate that the true
doctrine of natural law for positivists must, in its very essence be a different
true doctrine of natural law for the naturalists as the fundamental premise
for the argument has been expunged. A difficulty is then exposed through
the difference in the concept of truth and belief which surely must be of vital
importance when discussing the concept and exposition of law and justice.

Another difficulty then emerges within the analysis as the nature of law
should encompass universal characteristics to be found in law wherever and
whenever it exists. The properties are universal properties of the law not
accidentally, and not because of any prevailing economic or social
circumstances, but because there is no law without them. It presupposes that
law has an unchanging nature. However, the use of the term nature
potentially obscures the fact that in reality the nature and thus concept, of
law changes with time, and thus obstructs rather than helps the development
of a theoretical or philosophical account of law. Conversely, if nature is used
as a description of the contemporary, then the universal properties will be
directly affected by circumstance as there can be, by the very essence of
sociology, no fundamental characteristic in a fluid society. The latter
interpretation may indeed assist in merging analysis and description by a
shared base characteristic of fluidity which enables a direct link between
the two.

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This has been propagated by Finnis, for example, who attempts to overcome
this by linking practicable reasonableness with theory. He appears to jump
from the premise of a theoretical approach to a pedagogical conclusion with
no logical progression of argument. He separates the problems of justice and
rights, of authority, law and obligation.5 The separation of these principles is
consistent with his distinct separation of a description of human law should
be from natural law yet it the jump is clumsy and the separation not clear.
Finnis has been accused of offering natural law without nature6 meaning
that he is forced to rely on claims that certain propositions in normative
ethics are self evidently true. The idea of self-evidence is manifested through
what Finnis terms basic goods. These are self evident in that they are not
susceptible to proof thus they cannot be denied. I would argue against this
proposition. That they cannot be denied means that they cannot truly be
asserted either which makes the interpretation of his basic goods subjective.
Subjectivity undermines the very idea of uniform self evidence as although
each individual may become aware of each good, their experience of it will
be radically different. That these goods bring a sense of completeness also
begs the question of why one needs to feel complete for the application and
theory of the nature of law to successfully develop as practical or human
law.

That the foundation of many positivists theorems is comprised of humanism

renders it sociological in its very essence. They are subjective human
5

Finnis, J., Natural Laws and Natural Rights

Weinreb, L., Natural Law and Justice 1987, Chap 4

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theorems which means that they are indeed validated by human

interpretation and must therefore change as society is quintessentially fluid.
However, if human interpretation is needed to validate a theory of law it
follows logically that it is indeed a description of what the law is, or is to
become. Validation would not occur unless promulgated by those who could
render the concept legal. This, in its essence is an analysis of the concept of
law as legal is merely a part of the description of law. As Hart believes in
law being a social phenomenon, Finnis takes this further and states that
human goods must be seen in the light of a community of human beings, as
only in communal life are there the conditions for the pursuit of human
goods. However, the meaning underpinning this part of the theory
undermines the very essence of the goods as it suggests active pursuit is
needed to achieve that which can only be good if governed by rules.

If law is rule-governed behaviour in the sense of being in accordance with

explicitly formulated rules, then the role of that body which formulates the
rules becomes central to the concept of law. With morals there is an ultimate
emphasis on authenticity but in opposition is the laws ultimate emphasis on
conformity. This distinctive feature of law shows itself directly only with
regard to duties. Austin draws an explicit distinction between 'laws' and
'particular commands': where a command, he says, 'obliges generally to acts
or forbearances of a class, a command is a law or rule. Although the
connection between law and morality is not an analytic one, it is not merely
a contingent one either. Hart more or less concedes this in the case of a prelegal regime, but claims that in a developed legal system it is much easier for
the law to be out of line with morality. However, Dworkin cites Riggs v

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Palmer7 to deny Harts assertion by stating that it would be absurd to say that
the judge applied a rule, yet not absurd to say that the judge applied the law.
However, the New York Court of Appeals held that the rules were subject to
override by the (equitable) principle that "No one should profit from their
own wrong".

However, the use of morality in establishing normative law is a subordinate

theorem. Lex injusta non est lex has been a principle, and a description, of
natural law since common law and equity were separate concepts. For many
centuries the Court of Equity sought to remedy legal iniquity, and judges
avoid reaching unconscionable decisions because the law ought to be
congruous with morality, being legally less good law if it were not. More
recently, Hart conceded upon a point of law: This is law; but it is too
iniquitous to be obeyed suggesting law has, in its essence, a vague
morality within its nature to be understood by those who it governs.

Natural law is primarily concerned with the idea that morality is the
keystone in many legal arguments and law follows as a by-product.
Rousseau states that law is that holy imprescriptable law which speaks to
the heart and reason of man8 where it is up to individual conscience to
decide upon justice as conscience never deceives us. Yet the idea of unjust
is a human concept. Therefore can natural law, in prescribing the nature and
thus the concept of law be pedagogical in terms of dictating a morality for
humans to abide by in communities? It would assume that communities all
have similar base principles governing their lives. If morality is then taken as
7

115 NY 506, 22 N E 188 (1889)

Rousseau, Considerations sur le gouvernement de Pologne, 1771

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a human concept in that life is based upon experience rather than innate
feeling, it shows that morality is not decided on by a God but by new
experience which leads to an emotionally conditioned response. Thus it can
be logically concluded that morality is a series of conditioned responses that
have been codified over time to form a concrete morality. Indeed, this is
consistent with the concepts propounded by natural lawyers such as (it is)
the first moral principle to choose the possibilities which are compatible
with integral human fulfilment9. No choice can bring overall fulfilment thus
the principle of integral human fulfilment is a sociological ideal to guide
society to legally right choices.

The changing nature of sociological morality and the notions which attempt
to analyse the concept of legal repercussions hinder the description of law in
that any attempted description must take into account the fluidity and
subjectivity of social communities upon which the concept of law directly
relates to. However, a description of the use of the law is in nature, for the
positivist, as for the realist, irrespective of content and is legally binding
unless set aside by another Court. The House of Lords ruled in Preddy that
no offence under section 15(1) of the Theft Act, 1968 can be committed on
the facts because a vital ingredient, "property of another" is missing.
However, a decision of a court convicting someone prior to Preddy is not
overturned by the ruling even if the normal effect of judicial decisions is
both prospective and retrospective On this view the need for a decision, any
decision, is more important than that the decision have a particular content,
however congenial. This decision is typically a concise description of

Finnis, J., Nuclear deterrence, Morality and Realism 1987 p193

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what the law has become. Yet the consequence of any decision has the
potential to change what law is, both descriptively and conceptually.

However, an analysis of the concept of law can never fully be a description

of what the law actually is. Questions about the function of law are central
both in jurisprudence and in the sociology of law but they cannot be
answered, definitively, if at all, a priori through conceptual debates An
analysis of concept provides a conceptual framework for prescriptive law to
operate in idealistically and can theoretically prescribe the nature of natural
justice but the conceptual analysis of theory is becoming somewhat obsolete
prescriptively. Any theoretical concept undermines the practicality of a
principle that it may purport as without there being a pedagogical notion
underpinning it the ideas constituting the theory are transient. I maintain
however, that as discussed earlier within the body of the essay, this difficulty
is becoming less pronounced. The concept and nature of law is becoming
less retrospective and while an analysis separates into the elements, a
description of law should work in symbiosis with this by providing an
account of the elements which make up the constituents of legal practice.
However, analysis of the concept of law and a description of what the law is
can never fully be amalgamated until legal theorists accept that concept, and
nature of law, need to be fluid and contemporary in order for it to be a
description of what the law is.

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