Introduction to Law Series

What is Law? What is a Legal System?

The question “What is law?” is both foundational and profoundly complex, inviting exploration into the nature, purpose, and structure of legal systems. Similarly, “What is a legal system?” prompts inquiry into how laws are organized, enforced, and legitimized within societies. These questions lie at the heart of jurisprudence, the philosophy of law, which seeks to understand the theoretical underpinnings of legal systems and their role in human affairs. This introduction examines the contributions of notable Western thinkers—Jeremy Bentham, John Austin, Hans Kelsen, H.L.A. Hart, and Ronald Dworkin—whose ideas exemplify two prominent traditions in jurisprudence: the Continental tradition, associated with European scholars and bodies of literature, and the Anglo-American tradition, rooted in the United States and the United Kingdom. While these thinkers provide critical insights into the nature of law and legal systems, it is important to acknowledge that they represent only a segment of global jurisprudential thought. Other schools, including Islamic, Hindu, Confucian, and indigenous legal traditions, offer distinct perspectives that enrich the broader discourse on law, though they are beyond the scope of this introduction. By focusing on Bentham, Austin, Kelsen, Hart, and Dworkin, we explore how their theories, situated within Continental and Anglo-American frameworks, illuminate the complexities of defining law and understanding legal systems.

Jeremy Bentham: Law as a Social Fact in the Anglo-American Tradition

Jeremy Bentham (1748–1832), an English philosopher and a cornerstone of the Anglo-American tradition, approached law through the lens of utilitarianism, advocating for the “greatest happiness of the greatest number.” His principle of utility framed law as a social fact—a human creation designed to regulate behavior and promote collective well-being. For Bentham, law was distinct from moral or religious norms, grounded instead in observable social realities and evaluated by its capacity to maximize pleasure and minimize pain. This pragmatic, outcome-oriented perspective influenced the development of legal positivism, a hallmark of Anglo-American jurisprudence, which emphasizes law’s separation from morality. Bentham’s utilitarian view, while influential in Western legal thought, contrasts with non-Western traditions, such as Islamic jurisprudence, which often integrates divine law with human welfare, highlighting the diversity of approaches to law’s purpose.

John Austin: Law as Sovereign Commands in the Anglo-American Tradition

John Austin (1790–1859), another key figure in the Anglo-American tradition, built on Bentham’s positivist foundations to define law as “commands laid down by a sovereign.” In Austin’s view, laws are directives issued by a determinate authority, backed by sanctions for non-compliance. The sovereign is characterized by two features: first, the majority of society habitually obeys this authority; second, the sovereign is not subject to any higher human authority. This model underscores the coercive, hierarchical nature of law, distinguishing it from customs or moral norms. Austin’s command theory, with its focus on clear, enforceable rules, reflects the Anglo-American emphasis on legal clarity and authority.

However, Austin’s framework faces challenges. The reliance on commands and sanctions struggles to explain laws that enable rather than coerce, such as those granting rights. Additionally, the concept of a sovereign fails to account for the continuity of legal systems through political changes. These limitations, while debated within the Anglo-American tradition, also invite comparison with Continental approaches, such as Kelsen’s normative theory, and non-Western systems, like Confucian legal thought, which prioritize harmony over coercion.

Hans Kelsen: Law as a Normative System in the Continental Tradition

Hans Kelsen (1881–1973), an Austrian jurist and a leading figure in the Continental tradition, offered a distinct perspective with his Pure Theory of Law. Kelsen sought to isolate law as a self-contained system of binding norms, each deriving validity from a higher norm, culminating in a “grundnorm” or basic norm. These norms are hypothetical, prescribing what ought to be done rather than describing what is. By emphasizing the logical structure of legal systems, Kelsen aimed to create a scientific approach to law, free from moral, political, or sociological influences. This focus on normative coherence reflects the Continental tradition’s tendency toward abstract, systematic theories of law, as seen in European civil law systems.

Kelsen’s theory provides a rigorous framework for understanding legal systems as autonomous entities, but its abstraction can make it challenging to apply to practical legal disputes. The Continental emphasis on normative hierarchies contrasts with the Anglo-American focus on social practices, as seen in Hart’s work, and differs markedly from non-Western traditions, such as Hindu law, which integrates religious and social norms into legal frameworks. Kelsen’s insistence on separating law from morality also sparked debates that resonate across jurisprudential traditions.

My latest work on Kelsen:

H.L.A. Hart: Law as Social Rules in the Anglo-American Tradition

H.L.A. Hart (1907–1992), an English jurist, revolutionized legal positivism within the Anglo-American tradition through his seminal work, The Concept of Law. Hart redefined law as a system of social rules, distinguishing between primary rules (governing conduct, e.g., “do not steal”) and secondary rules (regulating the system’s operations, such as rules of recognition, change, and adjudication). Unlike Austin’s command model, Hart argued that the foundation of a legal system lies in the acceptance of a basic rule of recognition by officials and, to a lesser extent, the population. This rule determines which norms are legally valid, emphasizing social practices over coercion.

Hart’s concepts of efficacy (whether rules are followed) and validity (whether rules conform to the rule of recognition) reinforce the positivist separation of law and morality, allowing for the existence of unjust laws. His acknowledgment of judicial discretion in “open-texture” cases, where legal language is indeterminate, reflects the Anglo-American tradition’s focus on practical legal reasoning. Hart’s nuanced approach addresses many of Austin’s shortcomings, but it contrasts with Continental theories, like Kelsen’s, which prioritize normative structure, and with non-Western systems, such as Islamic law, which often embed moral and religious principles in legal validity.

Ronald Dworkin: Law as Interpretation in the Anglo-American Tradition

Ronald Dworkin (1931–2013), an American philosopher, challenged legal positivism within the Anglo-American tradition, arguing that law cannot be fully understood without moral considerations. Dworkin distinguished between the concept of law (a general idea) and conceptions of law (specific interpretations), criticizing positivists for reducing law to social facts. He proposed that legality involves both social facts and moral facts, requiring judges to engage in “constructive interpretation” based on two criteria: fit with existing legal materials and moral attractiveness. This interpretative approach is evident in “hard cases” like Riggs v. Palmer (1889), where a murderer was denied an inheritance despite statutory language, and TVA v. Hill (1978), where environmental protections prevailed.

Dworkin’s theory of law as integrity, which demands consistency with past political decisions about the use of collective force, contrasts with other conceptions like conventionalism (strict adherence to rules) and pragmatism (utility-driven decisions). His critique of positivism, particularly Hart’s rule of recognition, highlights theoretical disagreements about legal validity, asserting that every legal proposition involves moral judgment. Dworkin’s emphasis on moral reasoning aligns with the Anglo-American tradition’s focus on judicial interpretation but diverges from Continental theories, like Kelsen’s, and non-Western traditions, such as Confucian law, which prioritize social harmony over individual rights.

A Western Lens on a Global Question

The theories of Bentham, Austin, Hart, and Dworkin, rooted in the Anglo-American tradition, and Kelsen, representing the Continental tradition, provide a rich framework for exploring the questions “What is law?” and “What is a legal system?” These Western thinkers highlight competing perspectives—utilitarian, positivist, normative, and interpretative—that illuminate the nature of law as a social, normative, and moral phenomenon. However, their focus reflects only one dimension of global jurisprudence. Other schools, such as Islamic law’s integration of divine and human authority, Hindu law’s blend of dharma and governance, or indigenous legal traditions’ emphasis on community and custom, offer alternative visions of law and legal systems. As we engage with Jurisprudence – Seminar 1, the Continental and Anglo-American traditions exemplified by these thinkers invite us to grapple with law’s essence, legitimacy, and role in society, while recognizing the broader tapestry of global legal thought.