5.1.1 The Definition of ‘The Law’

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.

Back 

Next Section

[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).

This is a current page, from the Patterns of Power Edition 3a book, © PatternsofPower.org, 2020.  An archived copy of it is held at https://www.patternsofpower.org/edition03/511.htm