Defining “law” II: Legal systems and the variety of laws
Suppose that the Oligarchs, recognizing and regretting that they are not legitimate, want to take the first steps in the direction of legitimacy.
They announce some rules that they claim are aimed at the common good: murder is proscribed, theft is banned, and forced labor is to be replaced with taxes. From time to time they announce more such rules, and they say what the penalties will be for breaking them. When people are found to be disobeying these rules and the Oligarchs hear of it, they have them locked up or beaten, usually exacting the penalties that they originally threatened.But these rules are not systematically enforced, and there is no system for investigating when the rules have been broken, no way of objecting that a punishment is not the one that they announced, and no procedure for trying to persuade them that you did not commit the offense they are punishing you for. Furthermore, some of the rules are inconsistent with each other, and the Oligarchs are inclined to punish someone who breaks one rule in order to keep another. Doulia might still be a state, but these rules would not be laws.
The reason is that laws have to be part of a legal system, and to be a system of laws a set of rules has to be both
a) systematically organized and
b) systematically enforced.
The unsystematic character of the Doulian system shows that my first attempt at a definition of law needs to be modified to take unto account the systematic character of law.
But my definition is inadequate for another reason. When we think of laws, we very generally think first of criminal laws.
In the legal systems with which we are familiar, however, there are many other sorts of laws, some of which are not backed with threats at all. There are two very important kinds of such laws.First of all, there are laws such as the laws governing the writing of wills. These laws—which I shall call “constitutive” laws—allow people to do things (in this case, make a will), but they do not punish anyone who does not choose to take advantage of them. There is no penalty for not writing a will. Of course, if you do not write a will, the state will take it upon itself to allocate your property when you die. But this is not a punishment (and it is certainly not a threat of force against a dead person!), simply an activity that is required because the property of a dead person must belong to somebody. Once you do write a will, and provided it is properly drafted, the state will recognize it; and if anybody tries to take away the property you have left to your children, they will be punished by the criminal laws against theft. But the regulations about the making of wills govern only people who choose to be governed by them.
Laws that govern wills allow citizens to enter into legally defined relationships—they constitute those relationships. In essence, they allow people to use the state to help regulate their relations with each other. Many areas of civil law, such as the laws of marriage and contract, are in this respect like the regulations that tell you how you must draft a will.
Notice that even though we do not have to make wills or contracts or marriages, if we do, we place legal obligations on ourselves and on others, and those obligations may be enforced by threats. Nevertheless, the laws that tell you how to get married, or make a will or a contract, differ importantly from criminal laws, because they largely govern the behavior of people who have chosen to accept certain legal responsibilities—the executor of a will, the married couple, the parties to a contract—and are not binding on citizens who do not choose to accept them.
The second class of rules that are not backed by force either are the laws that determine how certain legal institutions should operate.
There are many such laws—one class, for example, says which courts should deal with which sorts of problems. These are laws governing jurisdiction. If a state judge tries a case that should really be decided under federal law, he or she will not be punished. Rather, a higher court will simply set the judgment aside. The rules about how judges should try cases are certainly laws, but they are not all backed by threat of force. (Of course, some laws governing the behavior of judges—those against taking bribes, for example—are backed by the states coercive power.) Let us call laws that regulate how courts should act, but that are not backed by threat of force, “institutional” laws.The English philosopher H.L.A. Hart, one of the modern defenders of legal positivism, has developed a theory of the kinds of structure we require in a system of rules if they are to be properly regarded as laws. That theory both recognizes the systematic character of the legal system and allows for the existence of constitutive and institutional laws.
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