A descriptive definition of "Law"
What is Law? It is a deceptively simple question. Every lawyer, and most non-lawyers, think they know what Law is, but most would be hard pressed to define it precisely. A statute against murder is clearly Law. A plate-full of spaghetti is clearly not Law. It is easy to create a definition of Law that covers these two examples, but it is not so easy to deal with the harder examples: unenforced statutes; customs, practices, and principles that are enforced by the courts; administrative and other non-legislative rules; pronouncements and acts of the despot; and the actions of private individuals.
Defining "Law" is further complicated by the natural tendency to inject normative concepts into the description. The statute of a modern, liberal democracy are probably preferable to the pronouncement of a despotic prince, but both are rightly described as Law. A precise definition is free of normative arguments and accurately describes all types of Law.
Similarly, it is easy to fall prey to cultural bias when creating a definition. Common law, civil law, Islamic law, and Chinese law have some similarities and some differences, but they are all Law. A precise definition of Law will avoid any cultural bias and present a universally descriptive picture. This blog post attempts to present a universal and descriptive definition of Law.
This blog argues that Law is anything that reinforces objectively-reasonable expectations about the behavior of others.
Whatever the definition of Law is, it must include those rules (or "laws" with a lower-case L) that courts actively enforce. It is uncontroversial to assert that a validly-enacted rule, properly enforced by an impartial court, is Law. A validly-enacted rule that is not enforced by the courts, however, is not Law. In Poe v. Ullman, 367 U.S. 497 (1961), for example, the U.S. Supreme Court refused to decide if a Connecticut statute barring the use of contraception was unconstitutional because the statute had never been seriously enforced in the 82 years since it had been enacted by the legislature. The Court held that "Deeply embedded traditional ways of carrying out state policy--or not carrying it out--are often tougher and truer law than the dead words of the written text." (Internal quotes removed).
Simply asserting that a rule is Law, as the Connecticut legislature did with this statute, does not make it Law. The rule must have some sort of impact before it can be called Law: it must reinforce expectations. In the Connecticut case, since the statute had not been enforced, the objectively-reasonable expectation was that one could use contraception in Connecticut. Indeed, the Court noted that local drug stores sold contraception "commonly and notoriously." In effect, the Law in Connecticut allowed the use of contraception. The statute's lack of enforcement reinforced the expectations in Connecticut that it was acceptable to use contraception, hence this was the Law.
Courts do not decide all cases only by applying rules; courts also apply principles, and these principles are part of Law. Ronald M. Dworkin convincingly argued that courts are just as bound by abstract principles as they are by concrete rules. Ronald M. Dworkin, Is Law a System of Rules?, in The Philosophy of Law (Ronald M. Dworkin ed., 1977). He used Riggs v. Palmer, 115 N.Y. 506 (1889), to explain the difference between a rule and a principle and to show how courts are bound by both. In Riggs, a grandson killed his grandfather because he wanted to inherit from his grandfather's will. The rule of the case (the little-L law) dictated that the grandson should inherit because there were no laws that explicitly allowed the court to abrogate the will in these circumstances. The N.Y. Supreme Court, however, held that "No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime," and blocked the grandson from inheriting anything. The rules of the case (concrete laws) dictated one result, but the court looked to principles (abstract principles of varying weight that "do not set out legal consequences that follow automatically when the conditions provided are met") to decide the case. Dworkin showed that if the court had not applied this principle in this case (and allowed the grandson to inherit from his crime), then we would have considered the case wrongly decided, therefore, the court was just as bound by principles as it was by rules.
The Riggs case and Dworkin's theory fall neatly within the idea that Law is anything that reinforces objectively-reasonable expectations. In legal systems, such as the common law system, in which courts routinely apply rules and principles, it is objectively-reasonable to expect that some cases will be decided contrary to the rules but in line with commonly-held principles (whatever those principles may be).
Taking all of the above together, Law at least includes the equitable application of rules and principles by the courts.
There is a wide gap, however, between "Law is the equitable application of rules and principles by the courts" and "Law is anything that reinforces objectively-reasonable expectations." The next step in bridging this gap is to recognize that many institutions and individuals enforce Law. In the U.S., Congress enforces Law, for example, when it impeaches the President. The President creates, and enforces, Law when she grants a pardon. Neither of these legal acts are reviewable by the courts but they are just as powerful as the courts' application of rules and principles to decide cases. In China, the full power to make rules is originally granted to one institution by the constitution: the National People's Congress. Indeed, any sovereign is fully empowered to declare Law within its domain--the despot is Law.
Law, therefore, includes the application of rules and principles by the sovereign (or the delegate of the sovereign). This definition is similar to John Austin's formulation of Law: rules created by the sovereign and backed by punishment. Many have criticized Austin's definition, especially because it fails to take into account non-governmental institutions that enforce Law. Some civil institutions, such as the American Bar Association, wield power that is virtually indistinguishable from the power of the state. ABA accreditation of law schools, for example, differs only in name from a state licensure system.
Internet regulation and membership in civil organizations provide two more examples of non-governmental organizations exercising power that has the effect of Law. Many aspects of the Internet are governed by private organizations. See, e.g., Henry H. Perritt, Towards a Hybrid Regulatory Scheme for the Internet, 2001 U. Chi. L. Forum 215 (2001). Domain names, a type of property, are regulated by ICANN--a non-profit corporation. Civil organizations regulate access to the benefits of membership by controlling who is admitted to the organization and under what conditions. No where is this more apparent than with religious organizations: membership, benefits, and sanctions can often have a more significant effect than actions by the state.
Finally, a significant amount of Law is enforced by individuals. No state has a comprehensive set of rules (or even principles) to govern all situations. Most family relations and trivial transactions (trivial to the state), for example, are left to the parties to manage. In those situations, Law is enforced by the parties. Relational Contract Theory reflects this idea by suggesting that many contract laws are enforced by the parties rather than by the courts. In a contract situation in which the parties have an ongoing relationship (e.g., a franchise), a breach of contract is rarely disputed in court. Rather, the parties resolve the dispute in the context of their ongoing relationship. When the potential future benefits of an ongoing relationship outweigh the short-term gain of resolving the dispute in court, the parties will enforce the law themselves in a way that allows the relationship to survive.
The courts are not the only actors that enforce laws: executives, legislators, civil organizations, and individuals all enforce Law in varying forms. At the very least, Law is the application of rules and principles (by anyone).
Dworkin used the terms "rules" and "principles" to refer to standards that are binding on the courts. It is an oxymoron, though, to talk about a despot (a ruler with absolute power) who is bound by anything other than physics, chemistry, and biology. To say that when the despot pronounces Law that she is somehow constrained by a rule or a principle is to say that she is not a despot at all. Since the despot's actions and pronouncements are Law, then Law must be wider than Dworkin's rules and principles. As further evidence, when Law is enforced by individual parties (e.g., family relations), they are partially bound by the rules of their sovereign (the little-L laws) but they are largely free to act as they wish. Again, it is odd to say that they are bound by rules and principles the way courts and legislatures are bound by rules and principles.
In fact, individuals often enforce Law that is contrary to the rules of the state. Robert C. Ellickson famously illustrated that ranchers and farmers in Shasta County, California enforced a set of social norms that sometimes contradicted state statutes. When a rancher violated the social norms of the area by allowing his cattle to damage the property of a neighbor, the neighbor would rarely sue. Instead, the two parties would generally resolve the problem by working together to fix the damage and prevent future incidents from happening. The parties would do this even if the cattle-owner was not legally liable according to the state statutes. If the offending party failed to follow the social norms, then the victim would gossip about the incident, which would lead to reputation costs for the offending rancher. If that failed to work, then the neighbor might resort to a type of self-help: transporting the loose cattle to a remote area. Still, this private enforcement could be for actions that did not violate the laws, rules, or principles of the state. Instead, individuals would enforce the social expectations of their community. This example illustrates that individuals are not bound by rules and principles--instead they are "bound" by expectations.
The definition of Law must include the actions of individuals, organizations, and despots that are acting without the constraints of rules and principles. Defining law as "anything that reinforces objectively-reasonable expectations about the behavior of others" includes all of these situations.
Customary international law is the set of rules that courts enforce based only on the fact that most nations have a custom of following said rules. Customary international law does not include the rules that nations agree to follow by enacting a treaty--it is only those rules that nations follow because they choose to follow them. There is a lively debate about the nature of customary international law especially whether the source of the law is natural law. Some commentators deny the existence of natural law, and the existence of customary international law because it is a derivative of natural law. Using the definition of Law from this blog sidesteps the debate and helps to explain why customary international law is part of Law. No matter what the source of customary international law, many nations apply the rules and principles, therefore it is objectively reasonable for people to expect that customary international law will be enforced by courts, followed by executives, and adhered to by individuals.
Law is not limited to the pronouncements and interpretations of the courts. Law includes all types of actors and institutions: despots and sovereigns, their delegates, civil institutions not associated with the state, and individuals. While some actors are bound by rules and principles, the full body of Law includes decisions and acts that are only bounded by the will and ability of the parties involved. Therefore, Law is anything that reinforces objectively-reasonable expectations about the behavior of others.
My thanks go to Professor Henry H. Perritt, Jr. for his help.
Defining "Law" is further complicated by the natural tendency to inject normative concepts into the description. The statute of a modern, liberal democracy are probably preferable to the pronouncement of a despotic prince, but both are rightly described as Law. A precise definition is free of normative arguments and accurately describes all types of Law.
Similarly, it is easy to fall prey to cultural bias when creating a definition. Common law, civil law, Islamic law, and Chinese law have some similarities and some differences, but they are all Law. A precise definition of Law will avoid any cultural bias and present a universally descriptive picture. This blog post attempts to present a universal and descriptive definition of Law.
This blog argues that Law is anything that reinforces objectively-reasonable expectations about the behavior of others.
An uncontroversial starting point: Law includes the "rules" enforced by courts
Whatever the definition of Law is, it must include those rules (or "laws" with a lower-case L) that courts actively enforce. It is uncontroversial to assert that a validly-enacted rule, properly enforced by an impartial court, is Law. A validly-enacted rule that is not enforced by the courts, however, is not Law. In Poe v. Ullman, 367 U.S. 497 (1961), for example, the U.S. Supreme Court refused to decide if a Connecticut statute barring the use of contraception was unconstitutional because the statute had never been seriously enforced in the 82 years since it had been enacted by the legislature. The Court held that "Deeply embedded traditional ways of carrying out state policy--or not carrying it out--are often tougher and truer law than the dead words of the written text." (Internal quotes removed).
Simply asserting that a rule is Law, as the Connecticut legislature did with this statute, does not make it Law. The rule must have some sort of impact before it can be called Law: it must reinforce expectations. In the Connecticut case, since the statute had not been enforced, the objectively-reasonable expectation was that one could use contraception in Connecticut. Indeed, the Court noted that local drug stores sold contraception "commonly and notoriously." In effect, the Law in Connecticut allowed the use of contraception. The statute's lack of enforcement reinforced the expectations in Connecticut that it was acceptable to use contraception, hence this was the Law.
Dworkin proved that Law also includes "principles"
Courts do not decide all cases only by applying rules; courts also apply principles, and these principles are part of Law. Ronald M. Dworkin convincingly argued that courts are just as bound by abstract principles as they are by concrete rules. Ronald M. Dworkin, Is Law a System of Rules?, in The Philosophy of Law (Ronald M. Dworkin ed., 1977). He used Riggs v. Palmer, 115 N.Y. 506 (1889), to explain the difference between a rule and a principle and to show how courts are bound by both. In Riggs, a grandson killed his grandfather because he wanted to inherit from his grandfather's will. The rule of the case (the little-L law) dictated that the grandson should inherit because there were no laws that explicitly allowed the court to abrogate the will in these circumstances. The N.Y. Supreme Court, however, held that "No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime," and blocked the grandson from inheriting anything. The rules of the case (concrete laws) dictated one result, but the court looked to principles (abstract principles of varying weight that "do not set out legal consequences that follow automatically when the conditions provided are met") to decide the case. Dworkin showed that if the court had not applied this principle in this case (and allowed the grandson to inherit from his crime), then we would have considered the case wrongly decided, therefore, the court was just as bound by principles as it was by rules.
The Riggs case and Dworkin's theory fall neatly within the idea that Law is anything that reinforces objectively-reasonable expectations. In legal systems, such as the common law system, in which courts routinely apply rules and principles, it is objectively-reasonable to expect that some cases will be decided contrary to the rules but in line with commonly-held principles (whatever those principles may be).
Taking all of the above together, Law at least includes the equitable application of rules and principles by the courts.
Law is enforced by actors other than courts
There is a wide gap, however, between "Law is the equitable application of rules and principles by the courts" and "Law is anything that reinforces objectively-reasonable expectations." The next step in bridging this gap is to recognize that many institutions and individuals enforce Law. In the U.S., Congress enforces Law, for example, when it impeaches the President. The President creates, and enforces, Law when she grants a pardon. Neither of these legal acts are reviewable by the courts but they are just as powerful as the courts' application of rules and principles to decide cases. In China, the full power to make rules is originally granted to one institution by the constitution: the National People's Congress. Indeed, any sovereign is fully empowered to declare Law within its domain--the despot is Law.
Law, therefore, includes the application of rules and principles by the sovereign (or the delegate of the sovereign). This definition is similar to John Austin's formulation of Law: rules created by the sovereign and backed by punishment. Many have criticized Austin's definition, especially because it fails to take into account non-governmental institutions that enforce Law. Some civil institutions, such as the American Bar Association, wield power that is virtually indistinguishable from the power of the state. ABA accreditation of law schools, for example, differs only in name from a state licensure system.
Internet regulation and membership in civil organizations provide two more examples of non-governmental organizations exercising power that has the effect of Law. Many aspects of the Internet are governed by private organizations. See, e.g., Henry H. Perritt, Towards a Hybrid Regulatory Scheme for the Internet, 2001 U. Chi. L. Forum 215 (2001). Domain names, a type of property, are regulated by ICANN--a non-profit corporation. Civil organizations regulate access to the benefits of membership by controlling who is admitted to the organization and under what conditions. No where is this more apparent than with religious organizations: membership, benefits, and sanctions can often have a more significant effect than actions by the state.
Finally, a significant amount of Law is enforced by individuals. No state has a comprehensive set of rules (or even principles) to govern all situations. Most family relations and trivial transactions (trivial to the state), for example, are left to the parties to manage. In those situations, Law is enforced by the parties. Relational Contract Theory reflects this idea by suggesting that many contract laws are enforced by the parties rather than by the courts. In a contract situation in which the parties have an ongoing relationship (e.g., a franchise), a breach of contract is rarely disputed in court. Rather, the parties resolve the dispute in the context of their ongoing relationship. When the potential future benefits of an ongoing relationship outweigh the short-term gain of resolving the dispute in court, the parties will enforce the law themselves in a way that allows the relationship to survive.
The courts are not the only actors that enforce laws: executives, legislators, civil organizations, and individuals all enforce Law in varying forms. At the very least, Law is the application of rules and principles (by anyone).
Law is not based only on rules and principles
Dworkin used the terms "rules" and "principles" to refer to standards that are binding on the courts. It is an oxymoron, though, to talk about a despot (a ruler with absolute power) who is bound by anything other than physics, chemistry, and biology. To say that when the despot pronounces Law that she is somehow constrained by a rule or a principle is to say that she is not a despot at all. Since the despot's actions and pronouncements are Law, then Law must be wider than Dworkin's rules and principles. As further evidence, when Law is enforced by individual parties (e.g., family relations), they are partially bound by the rules of their sovereign (the little-L laws) but they are largely free to act as they wish. Again, it is odd to say that they are bound by rules and principles the way courts and legislatures are bound by rules and principles.
In fact, individuals often enforce Law that is contrary to the rules of the state. Robert C. Ellickson famously illustrated that ranchers and farmers in Shasta County, California enforced a set of social norms that sometimes contradicted state statutes. When a rancher violated the social norms of the area by allowing his cattle to damage the property of a neighbor, the neighbor would rarely sue. Instead, the two parties would generally resolve the problem by working together to fix the damage and prevent future incidents from happening. The parties would do this even if the cattle-owner was not legally liable according to the state statutes. If the offending party failed to follow the social norms, then the victim would gossip about the incident, which would lead to reputation costs for the offending rancher. If that failed to work, then the neighbor might resort to a type of self-help: transporting the loose cattle to a remote area. Still, this private enforcement could be for actions that did not violate the laws, rules, or principles of the state. Instead, individuals would enforce the social expectations of their community. This example illustrates that individuals are not bound by rules and principles--instead they are "bound" by expectations.
The definition of Law must include the actions of individuals, organizations, and despots that are acting without the constraints of rules and principles. Defining law as "anything that reinforces objectively-reasonable expectations about the behavior of others" includes all of these situations.
Observing how customary international law is used reinforces this definition
Customary international law is the set of rules that courts enforce based only on the fact that most nations have a custom of following said rules. Customary international law does not include the rules that nations agree to follow by enacting a treaty--it is only those rules that nations follow because they choose to follow them. There is a lively debate about the nature of customary international law especially whether the source of the law is natural law. Some commentators deny the existence of natural law, and the existence of customary international law because it is a derivative of natural law. Using the definition of Law from this blog sidesteps the debate and helps to explain why customary international law is part of Law. No matter what the source of customary international law, many nations apply the rules and principles, therefore it is objectively reasonable for people to expect that customary international law will be enforced by courts, followed by executives, and adhered to by individuals.
Conclusion
Law is not limited to the pronouncements and interpretations of the courts. Law includes all types of actors and institutions: despots and sovereigns, their delegates, civil institutions not associated with the state, and individuals. While some actors are bound by rules and principles, the full body of Law includes decisions and acts that are only bounded by the will and ability of the parties involved. Therefore, Law is anything that reinforces objectively-reasonable expectations about the behavior of others.
My thanks go to Professor Henry H. Perritt, Jr. for his help.
posted by Hunter Hogan at
9:52 PM
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