From which standpoint is it possible to capture what law is?
It is possible to capture what law is from a standpoint independent of its content by positing a descriptive account of its characteristic features. In response to the limitations of early empirical positivism propounding the command theory, the conventional positivists put forth the separability thesis, by which law can be described distinct from any morally laden propositions. However, the value of such a purely descriptive account of what law is remains fundamentally limited. In contrast, natural law theory emphasizes the link between law and morality. Although relevant, this is not pertinent to capturing what law is. Kelsen’s Pure Theory of Law attempts to provide a middle ground through elucidating the hierarchical structure of law and its validity as derived from the Basic Norm of the historically first constitution. While the form of law can be captured in a value free manner, it is inherently normative and a meaningful standpoint of what law is requires considering what law is for and what law should be.
Early empirical positivism as represented by Bentham and Austin expressed law as commands issued by a sovereign backed by the threat of sanctions on non-compliance and habitually obeyed by subjects1. While this standpoint may have been relevant in past eras where sovereigns had absolute power over territory under their control, the development of democratic government has since rendered it obsolete. Law is now enacted by a legislature consisting of members of Parliament who are democratically voted into power. Furthermore, sanction backed rules offer a severely incomplete standpoint and unrepresentative generalization of reality. Although areas such as criminal law indeed carry the threat of sanctions on non-compliance2, numerous areas of law are administrative and procedural3 in nature. The standpoint of law as command proves irrelevant and inadequate in accounting for the varied types...
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