What Is Law?

The interrelations one finds between law and politics depend, to some extent at least, on the matter of definition. If one views law as "natural law," for example, he might subscribe to a definition like Aristotle's: "The law is reason unaffected by desire." Under such circumstances, politics has no effect on the content of law. For whereas politics offers an institutional process for the fulfillment or channeling of desire, law is isolated from desire and confined to the realm of reason. The only formal actions of politically organized society that could be termed law would be those conforming to the predetermined norms defining reason. Thus law might restrict the scope of politics, but politics could not determine the content of law.

If one were to take a sociological view of law, such as Ehrlich's, then "the great mass of law arises immediately in society itself in the form of a spontaneous ordering of social relations." Again, law does not depend upon politics, since, by definition, law arises spontaneously and precedes the establishment of political institutions. The political institutions might or might not reflect the spontaneous social relations that constitute law. In any event, as in the case of natural law, the content of law would be determined outside the political process.

When the term law is used in this study it is not used either in the sense of natural law or of sociological jurisprudence. It means positive law or the law declared by the organs of the State. Although concepts of reason, morality, and social custom may serve as sources of the positive law, they do not, of themselves, constitute law. Norms of reason, morality, or custom become law only through the operation of the institutions which have been established by the State or legal order. Hence the view of law asserted here is the traditional positivist view of men like Austin, Holland, and Kelsen. Law consists of general rules of external human action subject to enforcement by the coercive authority of the State or legal order.