Law is a system of rules that are created and enforced by social or governmental institutions to regulate behavior. It can be either formal or informal, and it can be based on written or unwritten contracts. The legal system can vary by country, and laws may be codified by a legislature in statutes or decrees or established by judges through precedent in common law jurisdictions. Law can also be created and enforced by non-governmental entities, such as private corporations or community groups.
The most distinctive feature of law is that it is a coercive institution, imposing its practical demands on individuals by means of sanctions. This feature has given rise to many controversies about the nature of law. The debate over whether law is morally desirable or justified in itself has been a central issue in the history of philosophical ethics. It has also been a central issue in the development of legal theory.
One prominent argument in this latter direction is that to understand what law is it is necessary to take a view about what functions it serves. The function-theoretic account of law is a key element in the legal positivist tradition, and it has been discussed and debated in great detail.
Its proponents claim that to understand what law is it is necessary not only to take a view about what functions it performs, but also to evaluate those functions as to their success or failure in meeting society’s needs. They further argue that the only way to assess the success of a law is to compare it with other laws and see how well they serve their functions.
There are some significant problems with this approach to understanding the nature of law. Most obviously, it is difficult to evaluate the success of a law without being aware of the purpose for which it was designed. It is also problematic to evaluate a law without knowing who was responsible for it.
Moreover, there is a widespread suspicion that the function-theoretic approach to understanding law is itself evaluative. After all, if we say that a law serves a particular function, we are implicitly saying that the function is valuable or justifies the use of force.
However, it is possible to have a functional account of law that is not evaluative in this sense. Indeed, most of the leading legal positivists have defended such an account. It is important to distinguish this from an evaluative account of the law, such as that advanced by Hart. Hart’s fundamental objection to Austin’s reductionist thesis about the normative aspect of law is that it obscures the fact that, where rules exist, deviations from those rules are not merely grounds for prediction that hostile reactions will be invoked, but also grounds for the assumption that the reasons for reacting in this way are obvious. Hart argues that this obscurantist interpretation of law’s normativity is flawed and dangerous. He offers a different, alternative interpretation of the normative aspects of law that avoids this flaw.