Defining “law” I: Positivism and natural law

Nevertheless, we must still start by trying to find a definition that accurately reflects the way the word is used. So let us ask how we do in fact decide whether a rule is a law.

Consider, for example, the following case, suggested by R. A. Duff in his book Trials and Punishments:

The Oligarch family seized power in Doulia twenty years ago: they have con­solidated their power over the unwilling but terrified populace with the help of the well-paid thugs who make up the “army” and the “police”; and they now enforce a system of.............................. rules whose sole aim is, they openly admit, to further

their own interests.

It seems to me that we would not want to call these rules “laws,” even if the threats the Oligarchs made were carried out by “courts.” And, given the discussion of the previous chapter, we can say why.

The reason is that there are certainly some minimum moral stan­dards that anyone must meet if the rules he or she issues are to be regarded as laws. For there are some minimal standards that people must meet if they are to be regarded as forming a government at all. As we saw in our discussion of the idea of the state, the bare power to enforce your wishes, without any right to do so, does not make you a legitimate government; certainly, the bare power to enforce its wishes does not distinguish government from successful banditry.

But positivists can still say that even conceding that moral ques­tions are involved in deciding who has the authority to govern, once we have identified the government, any rules they promulgate, how­ever morally repugnant, are still laws.

It is important that this is a concession.

Of course, if we accept the positivist's concession, we do not have to go so far as the natural law theorists. For once it is clear that a gov­ernment does not lack overall legitimacy, we certainly call some of the rules it promulgates and enforces “laws,” even if they are quite evil. Even those of us who think that the laws of slavery were morally appalling still recognize that they were laws. Like Austin, we can say that “the existence of law is one thing; its merit or demerit another.”

How, then, could the Oligarchs change their way of controlling Doulia in order to make themselves a legitimate government, so that their rules might become valid laws? If Hobbes was right, the minimum they need to do is to succeed in ensuring that their citi­zens are better off than they would be in a state of nature. But it seems pretty clear that this would not be enough. Even in the case as I originally described it, the Oligarchs might truly claim that the citizens were better off than without any government at all. There is no reason to think that the interests of the Oligarchs conflict with guaranteeing some degree of good order: an ordered citizenry is easier to keep under control. All they require, perhaps, is that every­body should give a few days of unpaid service in the Doulian gold mines each year. So their “police” might enforce rules against mur­der, just to ensure the supply of orderly labor.

Even if the Oligarchs met Hobbes' condition, then, they could still be in no position to claim that their orders were laws. But it is also true that we would probably not say that what the Oligarchs

were running was a state.

So what else would they have to do? One answer to this question is provided by Aquinas, in the passage I cited earlier: he said, you will recall, that a law was “nothing other than an ordinance of reason for the common good, made by whatever authority has the community in its care.” The key thing that is lacking in the case of the Oligarchs is any concern for the common good. Their rules are intended entirely for their own convenience. Even their enforcement of good order is intended only to make their own lives easier. They do not even pretend that their rules are made “for the common good.”

Our definition of the state, then, must require not only that a legitimate government should have the power to enforce its rules but also that its authority to do so should derive from the fact that at least some of its regulations aim at the common good.

We do not require, however, that the laws the Oligarchs make should actually succeed in promoting the common good. Perhaps the Oligarchs believe, wrongly, that the gods will bring misfortune on Doulia if they allow people to sing on Wednesdays. A rule against singing on Wednesdays will not promote the general good. All it will do is to deprive people of the pleasure of song one day a week. Perhaps the Oligarchs are so incompetent that almost every rule they make fails to contribute to the common good. Still, if they gen­uinely believed their rules were for the common good, we might call their rules “laws.”

If we do not require that the Oligarchs' rules should succeed in promoting the common good, neither do we require that the only aim that they pursue with the power of the state should be the com­mon good. There are many states with systems of law that are strongly biased in favor of one sectional interest; there are some, though fewer, where this is acknowledged to be so.

Of course, they are not a very good government. And Rawls and Nozick would both insist that we can make moral demands of them beyond simply doing the minimum to ensure legitimacy. But it seems that now they not only have the power to control the citizens of Doulia, but also meet enough conditions to be recognized as the political authority there.

We might suggest, then, with this understanding of “legitimacy”:

Laws are rules, backed by the threat of force, promulgated by a legitimate government to regulate the behavior of people subject to its authority.

What this means is that all that is morally required to turn a system of rules into a legal system is that it should be enforced by people who both have the power to enforce them and seek to exercise that power, at least sometimes, for the common good. But there are compelling reasons for thinking this is too simple an answer.

7.3