wills, contracts or other arrangements which confer rights and create obligations;
iv.
Courts to determine what the rules are and
when they have been broken, and to fix the punishment or compensation to be paid; and
v.
A legislature to make new rules and abolish old
ones.
Perplexities of Legal Theory
Despite the huge impact and social relevance to which the answer to the question What is Law?1 would amount to, a definite answer to the said question remains elusive. Astounding efforts from exemplar legal minds dwarf the efforts of other scholars in any other field in arriving at a concrete definition of their respective disciplines. Reflections about law of visionaries or philosophers who were primarily lawyers provide us a glimpse of understanding what law is during their time. However, such understanding, though given weight, if understood based on their context can be both illuminating and puzzling. As much as it illuminates and provide us deeper understanding on what the law hides, its light tends to blind us that we fail to see the entirety of the beauty of law. According to Hart,2 the legal system and its salient features involve the following: i.
Rules forbidding or enjoining certain types of
behavior under penalty;
1 According to John Austin, an English Jurist born in 1970, Law is a body
of rules fixed and enforced by a sovereign political authority.
2 Hart, Concept of Law (1994), p. 3
The notable roots of difficulty on answering the
question What is Law? lie on the existence of doubtful cases that gives legal scholars second thoughts on a concrete definition of law. Borderline cases3 are the hardest as though they share some salient features; they might also lack some of them which then makes them inconclusive as to whether or not they are for or against their classification as law. Three Recurrent Issues
3 Hart presents the following questions as samples to show the
borderline cases and questions scholars face which prevents them to produce a concrete definition of law: a. Is flying boat a vessel? And b. Is it still chess if the game is played without a queen?
The three principal recurring issues presented by Hart
as to why there is a need for a definition of law or an answer to the question What is law? or What is the nature (or essence) of law? includes the following:4 i.
The simplest sense in which conduct is no
longer optional, is when one man is forced to do what another tells him, not because he is physically compelled in the sense that his body is pushed or pulled about, but because the other threatens him with unpleasant consequences if he refuses;
ii.
The second way in which conduct may be not
optional but obligatory by linking morality with the law and morality with justice, and justice with the law; and
iii.
The rules and to what extent law is an affair of
rules.
The first issue is what the book refers to as obliged
to do so. An example of said issue is when a rapist tells his victim to take off her clothes, dont fight back and not to tell anyone about the incident or he will kill her and her family. In this example, though it is against the will of the victim to perform sexual act with the rapist, she was obliged to do so due to the fear of being harmed as threatened by the suspect. She was obliged to do so due to fear of repercussions. 4 Hart, Concept of Law (1994), p. 6
The second issue emphasizes morality and the
value and weight we give to good morals that guide our actions. This is mostly based on how we were raised by our parents and culture and tradition behind our foundation that is our family. We are forced to blend in and not differ from the conducts of our society as we are afraid to be considered as an outcast or pariah. Because of the gravitas an individual gives to these morals they believe in, it deprives them of reason and choices to act freely based on what they truly want. The third issue deals with the rules of different kinds and its relationship with the conduct to which they are concerned. The book sets as example rules on language etiquette. While some rules are mandatory (ex. Pay taxes), some provides certain required actions before an individual gets what he/she desires (ex. Getting married). The book also discusses the difference between mere convergent behavior and existence of a social rule. In the case of the latter, words such as must, should, and ought to are often use while the former is not considered as rule as it is not required but merely a united common act of the populace. Definition Definition,5 as the word suggests, is primarily a matter of drawing lines or distinguishing between one kind 5 Philosopher John Locke pointed out that the achievement of the full potential of human knowledge faces the challenge of lack of fixed meaning/signification of words. Definitions have interested philosophers since ancient times. Platos early dialogues portray Socrates raising questions about definitions.
of thing and another, which language marks off by a
separate word.6 Definition makes us understand each other better and communicate with precision of words. A square is defined as a regular quadrilateral, which means that it has four equal sides and four equal angles while a triangle is a polygon with three edges and three vertices. Imagine the gigantic problem the society will face should these two geometrical concepts have no precise definition, our building wont stand our architecture would be destructive. A definition which tells as that something is a member of a certain family is not very useful in helping us define law as it only provide us vague or confused ideas as to the character of the family but not the specific object we want to objectify. Precision of words based on specific definition will help us overcome our doubts and hesitations on border line cases disused above. We will not confuse application of the word healthy not only to a man but to his complexion and to his morning exercise; the second being a sign and the third a cause of the first central characteristic. The chapter concludes by saying that the book does not aim to give a definition of law but to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality as types of social phenomena. Further, the book suggested digging deeper on Austins belief that the key on understanding law can be found on the simple notion of an order backed by threats, 6 Hart, Concept of Law (1994), p. 13