American society is very much preoccupied with law. We have an elaborate system to make
and enforce the law. A large professional class is engaged in the practice of law. Numerous
academic institutions are devoted to teaching the law. There are thousands of publications
dedicated to legal education, research, and advocacy. Our mass media and popular culture
reflect the social preoccupation with law, in that we are exposed to a steady barrage of books,
films, newspaper articles, television shows, and even radio programs dealing with the law.
Despite this cultural preoccupation with the law, an essential question remains: What
? Numerous definitions have been proposed, reflecting the variety of philo-
sophical and theoretical orientations to the concept. Bearing in mind that any definition is
imperfect, we begin with the following simple formulation:
Law is a set of rules promulgated
and enforced by government.
This formulation is often referred to as
nineteenth-century English legal theorist John Austin defined simply as “the command of
the sovereign.” Positive law is indeed the command of the sovereign, in that it is enunciated
by government and backed by the coercive power of the state. But there is more to law than
this. To be law, the command of the sovereign must take the form of a rule, a principle, or
a directive that applies with equal force to everyone.
Moreover, to be accepted as legitimate,
the law must be perceived as rational, fair, and just. Some would argue that for positive law
to be legitimate, it must conform to a higher law.
is law that is presumed to flow from man’s
condition, that is, the social
condition existing prior to the emergence of government. Natural law is sometimes used to
refer to universal principles of morality and justice; however, precisely what those principles
are is subject to conflicting interpretations. In
the ancient Roman orator