5.1.1 The Definition of ‘The Law’

(This is an archived extract from the book Patterns of Power: Edition 2)

There are many ways of defining the word ‘law’. The Shorter Oxford Dictionary describes it as:

“The body of rules, whether formally enacted or customary, which a particular State or community recognizes as governing the actions of its subjects or members and which it may enforce by imposing penalties”.

This definition reflects John Austin's 19th-century positivist view of the law as "an order backed by threats”.[1] It requires at least the following:

· The rules have to be defined before they can be applied to a particular case: one cannot break a law that doesn't exist.

· The rules have to be promulgated: preferably written.

· Some means of enforcement is required: either crime prevention or a realistic possibility of catching those who break the law.

· Penalties have to be available: e.g. imprisonment.

Austin's definition is used in this book, but with modifications proposed by later writers, notably H.L.A. Hart and Ronald Dworkin.