There are as many definitions of law, as there are

legal theories. Critically evaluate this statement.

Student ID: 1913355

Student Name : Marie Aurélie Séverine Prayag
Program of study: Law and Management year 1
Module: Mauritian Legal System and Communications Skills for lawyers
Lecturer: Miss Krishnee Appadoo
Law is considered to be a universal concept and a formal mechanism of social control.
Defining law is quite difficult as it varies from society to society. It depends mostly on the
culture, norms and value of the country. For example, in France, gay marriage is considered
to be legal, however, in Mauritius it is not the case. As per the dictionary, law is considered
as being the system of rules which a particular country or community recognizes as
regulating the actions of its members and which may enforce by the imposition of penalties.
Leopold Pospisil (1972) points out that law “are mental constructs, relative in time and space
to the individual user and the purpose for which they have been constructed.”

It is difficult to define law as writers mainly focus on one part of the 2 questions that exist
that is “what is law?” and “what is to be asked about law?” Writers only focus on the first
question without asking themselves what are the functions of law, how it develops and why it
exists? Spending time answering these questions will help them in finding a good definition.
Therefore, personally I will describe law as being a form of social control which dictate the
behavior of individuals as they know that if they do not respect the laws of the society,
sanctions will be taken against them. For example, killing someone will cost the murderer a
lot of years of imprisonment. Warriner (1976) state that “the concept of law is based on the
assumption that part of what we refer as ‘law’ forms part of culture and the other aspect
forms part of social organization.” Law is also considered as being an institution which
include normative law as it helps structure society, regulate people’s behavior and distinguish
what is right or wrong, just like the other normative systems (religion, moeurs and ethics)

There are various theories of law which have been developed throughout different societies.
This include the natural, legal positivism, legal Marxism, legal realism and naturalism. The
legal positivist believe that the only legitimate sources of law are the written rules,
regulations and principles that have been recognized by the state. Their theory is based on a
view that law is a social construction and that law is just the expression of the will of the
authority which created them. From a positivist perspective, it can be said that “laws are valid
not because they are rooted in moral or natural law but because they are enacted by legitimate
authority and are accepted by the society.”

John Austin defined law as a command issued by a sovereign. He considers law as a being
the expression of a desire. For example, paying employees at the end of each months. This
example can be used as a credible use of threat of punishment simply because of the fact that
if the employer does not pay his workers it will be considered as an offence and sanctions
will be taken against him. He considered the ‘sovereign’ as an institution within a country
which a person obeys but who does not itself obey anyone else. Austin created a theory
known as the command theory which suggest that law is a desire backed up by a threat. So, in
other words, Austin is trying to explain to us that the sovereign (state) received the power
from the population itself and that it uses this power to enforce its command with the help of
the police force. However, there were some critics that were made because the main focus of
this theory is that law is respected only because of sanctions that exist to enforce them. The
latter will work best if criminal cases are used as its main example. For instance, a murderer
will be imprisoned, speeding to much will have you pay for a fine and so on. Nonetheless,
even though there were critics based on his theory Austin was witted enough to notice that
even simple cases like the last will of an individual is a desire but still backed up by a threat.
How? Simply because this person is threatened by the law of nullity. If the person fails to
sign the papers the sovereign will not give effect to his desire even if it is his last and final
will.

Hart is another positivist who defined law as a system of rules divided into primary and
secondary rules. The primary rules here are those laws that impose duties and obligations on
individuals. For example, a license is required in order to drive or else it will be considered as
an offence and it can be considered as an obligation. On the other hand, the secondary rules
are considered as being an authoritative statement of the primary rules as legislators has the
possibility to change primary rules if they are found defective. Hart argued that to apply the
simplest law, moral judgement is a must. Question like providing toilets for disabled person
can be answered by looking at social policies and the purposes of these rules.

Ideology
Marxist theory of
law defines law as
a tool of oppression
Ideologically
constructed
Bearer of ideology used by capitalists
to control the
proletariat. We
Created with
existing ideology
Serve to reinforce
and legitimate
have to note that
which are constantly
debated.
ideology which it
carries. the Marxist theory
itself is mostly
based on the idea
that the bourgeoisie have control on each and every institution (family, education, religion as
well as law) of the society. It is mostly a sociological rather than a legal theory. Even though
it is mainly sociological, Marx attempted to define law as being assigned to the superstructure
which reflects the base or economic structure. Therefore, it is the economic structure which
determines the character and the content of law. Marxist see law as being a double-sided
ideology. 1 The ideology is like a reference used by individuals to think and act. The ideology
appears to be normal for individual of the society as it provides a form of common sense
which Gramsci called hegemony. In other words, they bring society together to think and act
in the same way. Marxist argue that law provides the conceptual apparatus of property rights,
contract and corporate personality which play the double role of both constituting a coherent
framework for legal doctrine and at the same time set of ideas for the economy. Marxist also
state that law has an impact on social inequality because of the fact that proletariat will be

1
See diagram above.
neglected by law. For example, its easier for the capitalist to get out of jail compare to a
working class individual. Marxist also argue that it is through the law and state relationship
that questions about coercion and consent arises. Legal doctrines and processes must make
provision for the interrelation of capital through insurance, banking and other financial
service. One common example could be the fact that before receiving a loan from the bank it
is mandatory for the borrower to sign a contact in which he agreed that he has understood all
the terms and conditions regarding the loan.

We also have the natural law theory. The latter recognizes law and morality as deeply
connected. They believe that human law is defined by morality and not by an authority
figure. Thomas Aquinas, for example, defined law as “nothing else than an ordinance of
reason for the common good made by him who care of the community and promulgated.”
The main slogan of this theory is that “unjust laws are not laws”2 These theorists accept that
law can be an absolute form of power and as a set of reasons which determine actions. Green
state that “law’s capacity to advance the common good to secure human rights or to govern
with integrity” is mostly based on social facts. They also established a golden rule that is to
do what you want others to do for you.

The concept of morality for natural theorist does not depend on anything as the definition of
what is wrong or what is right is the same for everyone and everywhere because the main
purpose of law is to provide justice. Thomas Aquinas believed that natural law was an eternal
law as it was based on human behavior. He argued that it was self-evident because it does not
require any kind of proof and in his own words it was known through themselves. For
example: protect human life, reproduce and educate children, know and worship God and live
in society. Moreover, the principle of natural law was the same for everyone compared to
human law since it had to take into consideration the behavior of individual within different
society. Aquinas argued that human law that fail to comply to natural law are “acts of
violence” and a “perversion of law” and that such law cannot leave someone with a clean
conscience. For Aquinas, everything has a function and the good thing to do is to do things
that will fulfil these functions. However, Aquinas theory has one problem as it contradicts
itself. The theory itself is based on something natural, that it fulfils a function, that it is
morally acceptable and so on. But what is natural for him? Having a tattoo is not natural but
we cannot say that it is immoral either.

Finally, we have the realism theory. This theory was concerned with “law in action” rather
than with “law in books” with what lawyers and judges in fact do in the course of their
practice of law rather than what some legal theorists say he thinks law is. Oliver Wendell
Holmes state that the life of law has not been logic, it has been experienced. Holmes argued
that a contract is not a moral commitment that the law wants me to keep, it is a transaction
2
https://plato.stanford.edu/entries/natural-law-theories/ 2nd paragraph line 10
which offers each party an arrangement of his choice. For example, its either you give what s
being offered or pay for a penalty if you fail to give. The law of contract presumes that each
party does not care about each other. However, Holmes argued that the best way to
understand the law is to be able to predict when and what will influence the state to act.
Realists firmly believe that the law consists of decisions and not of rules as it is constantly
changing within time. Legal realists have the conviction that a court decision on one case will
help another court in taking its decision in the future. It can be said that this theory fit society
as we live in a society which changes constantly. What was considered as an offence 10 years
ago might not be an offence today. For example, in Netherland, the use of cannabis is legal.
We can now conclude with the fact that we have various types of legal theories and that the
perception of law and the definitions mostly depend on the way they themselves interpret
law. After reading the principles provided by each of these theorists, it will help us to know
which theory seems to be valid in today’s world. For example, in my case I consider the
realism theory to have the characteristics required to fit in today’s world compare to the other
principles. We cannot say that they do not have any role to play when the state is attempting
to change an act or when a judge is trying to give his verdict on a case. When trying to
change law the social problems and culture of the country will mostly be taken into account.
For example, passing new laws in the road traffic act because of the fact that drivers are not
responsible or debating on whether homosexuality can be legally acceptable. All this theory
together has to be taken into consideration before taking a decision.