5.1.1 The Definition of ‘The Law’

(This is a current page, from the Patterns of Power Edition 3 book contents.  An archived copy of this page is held at http://www.patternsofpower.org/edition03/511.htm)

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.

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[1] H.L.A.  Hart, The Concept of Law, p.  6, used these words to describe the position taken by Austin in The Province of Jurisprudence Determined, Lecture 1, p.  13 (originally published in 1832).