Law is a social order

  • Law is a social order in which there are rules & subjects but it should be distinguished from any social order in which rules are exercising a managerial direction over their subjects, partly by the generality of its major rules & partly by the fact that its officials are bound to apply the rules which they’ve previously announced to their subjects. So there’s an essential component of collaboration & reciprocity in the enterprise of subjecting human conduct to governance of legal as distinct from managerial norms.
  • Finnis: this is nonetheless a descriptive account
  • Raz: should seek to identify the law on the basis of non evaluative characteristics only
  • Inner morality of the law consists of 8 requirements – a system of rules which must be met if a system is to be called “law”:
  • Remeber this was highlighted in the Manchester taxi case vs Donalds 1982 PAS
  1. laws should be general;
  2. laws should be promulgated, so the citizen knows the standards to which he is being held;
  3. retroactive rule making and application should be minimised;
  4. laws should be understandable;
  5. laws shouldn’t be contradictory;
  6. laws shouldn’t require conduct beyond the abilities of those affected;
  7. they should remain relatively constant through time;
  8. there should be a congruence between laws as announced and as applied.
  • NB: at the same time, Fuller recognised the concept of legal systems being “legal” to different extents and held that a system which partly but not fully met his requirements would be “partly legal” and could be said to have “displayed a greater respect for the principles of legality” than systems which didn’t meet these requirements at all.
  • Since Hart’s work for the first time opened the way for exchange between opposing views, both sides now apparently admit that the question is how can we best define and serve the ideal of fidelity of law: law, as something deserving loyalty must represent a human achievement – it can’t be a mere pattern discernible in the behaviour of state officials. Respect we owe to it must surely be something of a respect we owe to the law of gravitation..