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THE CONCEPT OF LAW
The Law is one of the most complex and challenging issue of all times. The word itself consists of many different aspects and conceptions made up throughout the years and widely described in numerous publications, books and scholarships. People have created theories and views that are still in use and are treated as the basis for applying and understanding particular legal aspects. To get the real picture on functioning of the world, it is necessary to learn the legal concepts and patterns that are its inherent part. To begin with, one of the most important aspects is to know the general definition of the word law. Simply said, it is a set of norms and legal rules that regulate particular areas of life and determine specific practices to be followed. It creates rights and obligations towards the subjects. We can obviously distinguish the law based on a method of regulation, for example: criminal law, public law, private law, civil law etc. However, the concept of law carries a bit deeper and complicated sense. We can say that it has an overall impact on the creation of law, ways of interpretation and understanding. To bring and maintain social order the law needs to exist and function in the possibly most efficient way, that is why there are many different approaches. One of them is legal positivism developed by philosophers in 18th and 19th centuries. In this context, the law is made by human beings, established by legal authority recognized socially and any necessary relation between the law and morality does not appear. In other words, the law and morality are two separate subjects. Even if from particular perspective that law is bad, it is still a fully respected law as it was added to the system by the legitimate authority. The ideal law is the one that is free from evaluation, that is why it has to be split up from any moral aspect. In today’s world, positive law is developed on a basis of liberalism where the authority is less repressive and gives more freedom to citizens, but still, it comes from respected legislator/legal authority and is functioning by all means, regulating chosen areas of social and economic life. In this concept, it is also believed that the law exists only in form of written text. John Austin was an English legal philosopher who created his own approach to legal positivism, in which he described that law and rules are a type of command issued by sovereign to members of political society, where the norms should posses pure and simple bans and regulations. This is the concept of law- sovereign-command-sanction-duty. It is said that John Austin was a creator of the order theory. There was a criticism of that approach and one of the people against that theory was Herbert Hart -
English philosopher and author of the book titled The Concept of Law. In his mind, it is difficult or almost impossible to identified a sovereign as the law-making powers are dispersed in many modern societies. Also, most legal systems include rules that do not impose sanctions. There needs to be a difference between the law and threat. If legislations were pure in Austin’s sense (bans, norms and sanctions) there would not be a difference between them and a gunman’s threat. Although, Herbert Hart was also pursuivant of legal positivism. It seemed, both had just a bit different perspective. Moreover, the book written by H. Hart remained one of the most influential text of analytical legal philosophy. Besides a critique of John Austin’s theory, it also consists of topics such as: distinction between primary and secondary legal rules, distinction between the internal and external points of view of law and rules and an answer on criticism of legal positivism, which is one of the pillars and concepts of law. Oppositely to the legal positivism stands natural law/legal naturalism. In this approach, it is believed that human beings possess a natural ability to distinguish what is right and what is wrong which governs our reasoning and behavior. In other words, based on close observation of human nature, there are distinctive kinds of behavior and understanding that are independent of positive law, which does not approve existence of naturalism. All people have inherent rights that does not come from any legislation and can refer to ethics, morality or religion. There is no one conception of natural law, depending on what we admire or what we believe in, it may differ. For example, If someone believes in God, they may assume that human’s behavior is regulated by religion, which means that in the essence, the God is a source of law. In rationalistic approach, the mind, nature or dignity are a key factors of human’s actions. The beginnings of that concept roots to ancient times (Greece, Rome). Later in middle ages, Christianity took that concept and started presenting it in different aspects related to God and canons of behavior. St. Thomas believed in hierarchy of God’s plan that can be slowly recognized by human as a natural law. In today’s world, Pope John Paul II was developing this concept. However, natural law these days exists also out of the religious frames. God’s law has been replaced by the law of human nature. In that approach, natural law has as fixed character as human being and is impossible to be changed. It is common and rational. This is a static concept, but there is also another perspective - dynamic, which states that the nature of every person is not always the same, but is changing depending on history, world’s development, increase in intelligence, image of the future. The way people interpret things is changing over the years. Some great events like war can create such huge traumas that will totally redefine the way people perceive the reality, and in consequence, can have a huge impact on naturalism and approach. Different priorities, goals and
Critical element that should also be included is the way of pre-understanding. The judge may not know the details and facts, but based on his experience and historical knowledge, he should know the overall sketch of that text. The legal hermeneutic conception was mostly developing in Germany and their law philosophy, but it was also adopted the the United States. In Poland that approach is not very popular, however, it has been developed by a few lawyers. Now, when talking about the legal argumentation, it is important to explain that it mostly relates to cases and disputes that need to be solved. In this situation, the most crucial thing is to convince parts that a particular decision is right and does not harm anyone. There are specific key components of argumentation and these are: understanding and identifying arguments and the goals of participants in the different types of dialogue, identifying the premises from which conclusions are derived, establishing the burden of proof that determines who made the initial claim and is responsible for providing evidence. This theory can be considered a tool of communication and connection, but also forces judges to investigate cases with patience and devotion, so that the argumentation of the decision could be clear and understandable. Inherent aspects of that theory are negotiation, deliberation that lead to a full decision making process. The implementation of law is the ability to present different arguments consisting of different points of view and ideas, so that the judgment can be realistically lawful thanks to the investigation and analysis of number of arguments. However, certain methods of understanding the law are so strongly rooted in the concepts and history of law that are from the very beginning taken as sure and undisputed, even if these are not clearly stated in any legislative act. This is a part of the legal culture - opinions, attitudes, values and expectations with regard to law and legal institutions. Summing up, this theory states that the law always requires reliable and deep argumentation, because it is the only thing that makes the law important and trusted. Lastly, I would like to mention legal communication. This theory focuses and explains how legal practitioners use communication to achieve goals in legal forums. Norms as official legal acts are being established only on a path of communication of the legal text author (for example parliament), and its executives (judges, counselors), as well as the addressees (the citizens). This is one of the most important aspects of the law creation, where the best and only possible outcome should be an agreement between these parties achieved on the way of dialogue. Of course, the way to reach the agreement is long and difficult, because it strongly depends on numerous aspects like religion, beliefs or current economical, political situation. Different situations and emotions internally of the government and country can lead to huge disagreements and conflicts that will
result in not concluding particular legislation which will not come into force. Although, only on this bases the law should be in force, otherwise it will cause even bigger problems and division in the society. Legal communication is a key part that maintains a healthy and good functioning of the state’s or organization’s legal order. All in all, it is safe to say that the law is a complex phenomena consisting of different aspects and approaches. Most of the time, we are noticing only the top of the iceberg, while the origin and concept of law is complicated and deep. However, thanks to legal philosophers, we are now able to analyze different points of view which help us to understand and implement the law in the right way. BIBLIOGRAPHY:
- http://www.csstirl.samorzad.uw.edu.pl/wp-content/uploads/2010/10/Wstęp-do-prawoznawstwa- 2.pdf
- https://www.ksiegarnia.beck.pl/media/product_custom_files/1/6/16698-wstep-do- prawoznawstwa-tatiana-chauvin-fragment.pdf
- https://iep.utm.edu/leg-herm/
- https://en.wikipedia.org/wiki/Legal_realism
- https://study.com/academy/lesson/emile-durkheims-theories-functionalism-anomie-and- division-of-labor.html
- http://jilc.uw.edu.pl
- https://www.investopedia.com/terms/n/natural-law.asp
- https://en.wikipedia.org/wiki/H._L._A._Hart
- https://en.wikipedia.org/wiki/John_Austin_(legal_philosopher)
- https://en.wikipedia.org/wiki/The_Concept_of_Law
- https://en.wikipedia.org/wiki/Natural_law
- https://en.wikipedia.org/wiki/Positive_law
- https://www.jstor.org/stable/
- https://en.wikipedia.org/wiki/Rule_of_recognition
