5.1.1 The Scope of the Law
The scope of the law for the purposes of this book extends from the formulation of rules, through enforcement, to penalties for breaches.
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. A journal article, Legal Positivism: An Analysis of Austin and Bentham, summarised the underlying philosophy:
“The basic idea behind legal positivists was that they considered law as it is and not what it ought to be. They separated moral principles from legal principles. They were of the view that law is the will of the superior which is backed by sanction.”
In agreement with the above philosophy, moral principles and pressures are treated separately in this book. They were described in the previous chapter of this book, as being applied directly between individuals without necessarily having written authority.
Austin’s view of law is that it is a different kind of power. It requires “superior” authority: typically established by a recognised form of government. The scope of the law within this definition requires at least the following:
● The rules must be defined before they can be applied to a particular case: one cannot break a law that doesn’t exist.
● The rules must 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 must 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.