What is Law_ _ The Legal System _ SQE Prep

Welcome back everybody to our studies in the English legal system for the SQE. This video is going to be very, very introductory in the sense that what we're going to do is just spend some time taking a very, very quick and very, very brief overview of essentially the question of what law actually is. What is law? And this is of course a theoretical question. This brings in a little bit of philosophy. So some of you who may have done philosophy degrees and have gone and converted into law and come from a non-law background might be very excited about the idea of spending some time doing some philosophy. Some of you who are very much wanting to understand the legal system just to the extent to which you want to know what you need for the exam, you might be quite annoyed about the fact that we're now doing some philosophy. But I genuinely think it is very important. So I encourage you not to skip this video if you're not particularly fond of theory or philosophy. It's not going to be that theoretical. This is really the only lesson that we're going to do on theory for the most part. And so I think it's important. I think the theory is a little bit important just to have a basic idea of a conceptual understanding of the nature of law. This represents introductory content so you won't get tested on any of this in the SQE as far as I'm aware looking at the specification. And so therefore this is just a way for you to sit back and get a good understanding of how the legal system or how law is understood and has been understood by philosophers. So if you were asked the question what is law you might find that you give a very basic bog standard definition that's a bit like this. That law is a system of rules and norms which are established and enforced by society or by the state. Very simple. Law is similar to rules in that kind of way. They're just rules but they are rules that have a special kind of character because they are rules that are enforced by the state for example. So the law that you shouldn't commit theft for example is basically a rule. It's basically a rule in a similar way that you have rules when you're at school. A rule that is you shouldn't commit theft but the only difference is if you commit theft then the state is going to enforce some kind of punishment, is going to enforce some kind of retribution on you for the breaking of that particular rule. But what about more deeper questions? It's a very easy definition to give but what about the question of what actually is law? What does it mean for example for something to be a law? Is it just a rule? Because people have rules throughout all of their life and in various different aspects of day-to-day life there are various different aspects of rules that exist. Not all of them are laws. So what makes a rule a law versus just some kind of mutual agreement for example? Does law have to reflect morality for example? What is the distinction between law from a domestic perspective and law from an international perspective? Is international law law? Well is it law in the same way as domestic law? Definitely not. But is it law in a different way? That's a question that we're going to ask in this video. The study of philosophical foundations concerning law, the philosophy of law for example, or legal theory is sometimes described as jurisprudence. So our videos on jurisprudence that I did a couple of years ago are in a playlist called jurisprudence and fundamentally concern these kinds of questions. Now analytical jurisprudence or analytic jurisprudence is a branch of philosophy which asks the question of what are actually the necessary and sufficient conditions of law? What are the things that are necessary and sufficient to be present when we show the existence of law? So if we have a thing, if we have a book or whatever, and we point to that book and we say in this book here there is a law, look there's a law on page 36, how do we know that that is a law? What are the conditions that that thing satisfies for it to therefore qualify as a law? Is law just a system of rules or is law something that is inherently connected to morality? Is that something that should play a part into this particular characterization? Well, for centuries and millennia philosophers and theoreticians have, of course, spent plenty of time discussing and thinking about each of these different questions. Natural law theory is one of the earliest renditions of this idea. Now natural law theory suggests that laws derive from some kind of universal moral truths and that these universal moral truths are discoverable through reason, through rationality. Now laws are common to human nature and laws are justified by their moral content. So according to a basic conceptualization of natural law, a law is only a law if it is moral. So whatever morality and whatever system of normative ethics that you choose to ascribe to is what you will use to judge whether or not a particular law is in fact law. But by extension then the counter of that is that natural law theory suggests that laws which may, on the surface, may prima facie be a law, if they are immoral they are in fact not laws at all. So for example, in 1935 the Third Reich passed what were known as the Nuremberg Laws. Now the Nuremberg Laws were by all accounts laws that were passed or using the ordinary means of the Nazi regime, but they were immoral of course because they prohibited Jews and non-Jews from marrying specifically. That's one of the main aspects of the 1935 Nuremberg Laws. And so a natural law theorist would conclude that because they are immoral they are fundamentally in stark contradiction to the universal moral truths, then they are therefore not law at all. So they're called the Nuremberg Laws but they're not in fact laws, they aren't laws at all. Key figures associated with natural law theory include originally people like Aristotle, Cicero, but most importantly Thomas Aquinas, and more modern natural law theorists, people like Finnis and also Fuller, who developed theories of natural rights and all these different ideas, sort of seeing a slight resurgence in natural law theory through the works of people like Finnis and Fuller. I've already got maybe three or four videos on natural law theory, so if you want to spend some time looking at natural law theory I have those already on the jurisprudence playlist. One day I might do a whole series just on natural law theory and we'll have a great time, but for now that is just a summary of natural law theory for you to get a basic idea. The more popular theory in more recent times is this idea known as legal positivism. This is sort of like theory that has drowned out most of the others. We've seen sort of the resurgence or the growth of some more postmodernists, some more Marxist and anarchist theories of law, and some more critical legal theories that have become more prevalent and popular, but for the most part the majority of legal scholars are likely positivists in one way or another. Now, a positivist doesn't see the link between law and morality. There is not necessarily this clear link between law and morality, and so therefore if you have a law that is immoral it does not necessarily mean that it is not a law. But then that begs the question, well, what is in fact a law according to legal positivism? And the answer, broadly, because there's of course lots of different perspectives and lots of different ideas, but broadly it's a theory which suggests that law can be defined as rules which are issued by some kind of legal authority enforced by some kind of sanction. And so fundamentally it isn't exactly the moral character of the law that makes it a law, it is the process in which it is created, and it is the legitimacy of the institution that creates it that makes it a law. This divorces, therefore, law strictly from morality. Early legal positivists include people like John Austin, who believes that law derives from the commands of the sovereign, and so essentially the source of law for Austin was the sovereign. So whatever is defined as the sovereign in whatever legal system you so choose. Historically, of course, this might be the monarch, and more modern interpretations might conclude that parliament is sovereign, owing to various different legal making principles that we see in constitutional law. And so whatever that sovereign does, whatever rules they make, and whatever laws they proclaim, the fact that they are laws is based on the fact that they are made by this person, by this sovereign, or by this institution, should I say. Sovereign doesn't necessarily have to be a sovereign in the kind of monarchical sense. This does necessarily invalidate the authority of international law, and a lot of early legal positivists, in fact, didn't believe that international law is, in fact, law at all. Some even modern positivists might come to that conclusion as well, and more modern positivists have had to reconcile the fact that international law doesn't fit within this broader early conceptualization of legal positivism. And this is where we get other theorists, most famously, of course, H. L. A. Hart, who recognized that there is a distinction in law between two different types of rules. He delineated between primary rules, on the one hand, and secondary rules. Primary rules are often defined as the kind of behavioral norms, and secondary rules are seen as more meta rules, in the sense that they're the kind of rules of adjudication, and things of that nature. And that, together, these two groups of rules are reinforced by a legal community's, quote-unquote, rule of recognition. The idea that there is a recognition of the legitimacy of these basic principles. Now, another theorist, Hans Kelsen, developed what he described as his, quote, pure theory of law, which he describes as a hierarchical system resting on an assumed basic norm, a Grundnorm. This basic norm is, again, abstracted out of moral and political considerations, and so, just like with Hart, and just like with Austin, Hans Kelsen's theory of law also divorces law from morality in a strict sense. Now, while there are other theories and ideas about law, postmodern theories, the idea of legal realism, there's so much more legal positivism I could get into, I'm gonna move on and start thinking about some of the other ideas, because fundamentally, I just wanted to give you the two big theories of law. The two big ideas that have, sort of, historically been dialectically opposed to each other for many, many years. The, sort of, natural law idea versus the legal positivist principles. But, I want to speak about the normative character of law, because law isn't just descriptive. Law doesn't describe a state of affairs, or describe a state of behaviours. Law is also normative. It is something that you ought to do. You ought to obey laws. It is prescriptive. It provides, essentially, guidance on how one ought to behave in the future. Now, H. L. A. Hart suggested that a distinction between external perspective, which is defined as behavioural compliance, and internal perspective, namely, the recognition that law was, in fact, normatively binding. That there's a distinction here that exists. According to Kelson, legal norms are just inherently ought statements. They are inherently normative in their character. And then, finally, another theorist, Joseph Raz, who died not long ago, in fact, suggested that law provides reasons for action. This is a distinction from, again, moral or religious reasons. So, I hope you've enjoyed this video. I hope you've got a basic understanding of some of the ideas about what law is, and how legal theory has shaped a definition of law. Of course, this is a very, very basic overview. I've just given you a thousand years of jurisprudence and theory in 13 minutes. So, of course, if you want to know more, then go and head over to the videos that I've done on jurisprudence, that I did a couple of years ago. I might do some more videos on jurisprudence in the future, feminist theories of law, radical theories of law, postmodern theories of law. But for now, in the next video, what we'll do is basically take one step ahead of this, and go beyond asking the question about what law is, and ask the question about what actually is a legal system. And this is, again, building on the foundations, because we're going to eventually get to the English legal system. So, we're going to think about what the law is, what a legal system is, and then think about what the English legal system is, which, of course, will be the subject of the majority of our content.