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Defining Law - Essay Example
The Oxford English Dictionary defines "law" as "a rule or system of rules recognized by a country or community as governing the actions of its members" (2001). Indeed, for centuries philosophers have attempted to define, prioritize and characterize the essential elements of law and functional legal systems, discussing such conceptualities as the nature of law and the relationship, if any, between law and morality…
Undoubtedly, to be of use, most rules or systems of rules require a method of enforcement, whether the method be remedial in nature, such as a civil judgment, or a penal sanction imposed in a criminal matter. John Austin, a proponent of the social fact thesis of legal positivism, contends that the primary distinguishing feature of a legal system is whether its rules can be enforced (1995). Austin argues that a rule of law in society is legally valid if and only if that rule is commanded by the society's sovereign and is backed up with the threat of sanction, or enforcement (1995). As such, it is Austin's position that the essential element of a law is whether someone has the ability to sanction its noncompliance.
Austin's position seems tenable. Indeed, without enforcement, laws have no effect. To ensure compliance, and in the absence of any moral obligation to obey a law, an absence which we must presume, a law must impose a consequence for a violation. Even the rules that govern the application of law, such as rules of procedure, require some sort of sanction for a breach. A prominent philosopher of law, H.L.A. ...