Presently almost every lawyer is a legal positivist. Contrary to what some believe, legal positivists are not naïve persons who only recognize black letter law. Legal positivists assume that law is a social phenomenon, a part of social reality. In this respect law is like football clubs, countries, games and etiquette. All these phenomena exist because people believe that they exist and act on this belief, because they believe that others believe the same and because they consider this shared belief as reason why these phenomena exist. Following this pattern, law exists and has a particular content because people believe that law with this content exists and because people by and large comply with this law, because they believe that others believe the same and consider this shared belief as the reason why what they believe is true. Admittedly not everybody knows what the content of the law is. To that purpose we have experts that have the required knowledge. Lawyers and in particular judges are these experts, and the existence of law depends on their shared beliefs.

It turns out, as a matter of social fact, that legal experts use a particular test to identify laws: they look at so-called ‘legal sources’. Prominent amongst these sources are legislation, judicial decisions, and treaties. Therefore we can also say that law is what can be found in the sources of law. However, that only works if these sources are used by legal experts, so in the end it is the experts who, through their behaviour, determine what law is. Or perhaps the people at large, who trusted the experts  with the power to identify laws.

If law is a social phenomenon, more or less as described above, this explains the way in which legal practitioners determine the content of law. They look into the sources of law and collect expert’s  beliefs about the content of law (legal doctrine). That is important because on the legal positivist view these sources and opinions define what law is. Doing otherwise would show ignorance of law’s nature as a social phenomenon.

Yet, this account explains only part of what lawyers do. Value judgments on what is the proper, or even the best  solution for a type of case often play a role in legal reasoning. This is not only the case for judicial decision making, but also for ‘descriptions’ of the law by legal scientists. Quite often this evaluative aspect is disguised as ‘interpretation’, for instance teleological interpretation. This disguise suggests that lawyers merely ‘interpret’ what is already there; they only need to find the proper meaning. However, interpretation often boils down to evaluation. The practice of ‘finding’ the law is not only governed by social reality, but also by evaluations.

Some interpret this mixed practice – a little description of social reality and a little evaluation - as a confusion between finding and making law. Others, including the present author, think this mix captures the essence of law: law is not in the first place a social phenomenon, but a case of practical reasoning. Practical reasoning is reasoning about what should be done. It is traditionally opposed to theoretical reasoning, which deals with what is the case. Law consists of guidelines on how to reason practically. A special kind of guidelines, to be precise: law deals with the question what kinds of behaviour should be enforced by collective means. In modern societies these collective means consist of the power of the state, but in other times or at other places they might just as well be the joined forces of the neighbourhood, the members of a tribe, or the force of a religious institution.

Notice that on this view law is not what is actually enforced, but what ought to be enforced. Therefore it should not come as a surprise that evaluative considerations play a role in determining what ought to be enforced and what the law is. But what about law as a social phenomenon? For at least two reasons the positive law - the rules (and rights and principles) that exist as a matter of social fact - is very important for determining what ought to be enforced. The one reason is that the existence of these rules as a matter of social fact indicates that they are good rules. I do not mean to say here – but I do mean to say it later – that pure existence makes rules good. Here my only point is that the continued existence of rules is a sign – not a proof - that these rules are considered to be good. Moreover, if rules are considered to be good, this is a sign – again, not a proof – that these rules are actually good.

There is also a reason why the fact that rules exist in social reality is a reason to enforce these rules by collective means. That reason has to do with legal certainty. Rules that exist in social reality create expectations. The existence of these expectations is a reason – not necessarily a decisive one – why the rules that created these expectations should be enforced. This reason makes that positive law should be enforced.

The legal positivist view of law explains why lawyers look at social reality to find out what the law is. It does not explain why lawyers often also engage in evaluative reasoning. The view of law as a branch of practical reason explains both aspects of legal practice. Therefore this latter view is to be preferred over the legal positivist view. Because legal positivism and the view of law as practical reason are the two main theories about the nature of law, and because the latter view is better than the former view, the view of law as practical reason is the best view of law. However, it is not the view that most lawyers hold.  Therefore, most lawyers have no idea what law is.

 This blog is published on Law Blog Maastricht. ^{Image by Flickr, Bridget Coila}