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What Is The Nature of Law?

By Jack M. Balkin

On Legal Theory Blog, Larry Solum just posted another excellent lexicon entry, this one on "The Nature of Law." As usual, his explanation is concise and informative. Solum lays out the traditional legal theory debate over "What is law?" as a contest between natural law theory and legal positivism.

One limitation of Solum's discussion is that it fails to consider the sophisticated analysis of this issue by social theorists and social scientists. Max Weber, Eugene Ehrlich, and Niklas Luhmann, for example, all highly regarded theorists who were well versed in natural law theory and legal positivism, went outside this standard debate to answer the question "What is law?" in terms of the social forms and functions of law.

Another limitation of Solum's discussion is that it treats the question "What is the nature of law?" as equivalent to the question "What is law?" But these are not the same question. If one takes the position that "law" has no "nature," that opens up a different angle on "What is law?"

These comments are not criticism's of Solum's summary of the legal theory debate over "What is law?," for he faithfully reproduces the basics of that debate (which he might go beyond in promised future entries). The problem is with the dusty old, artificially narrow parameters of the debate itself. A broader look at the question "What is law?" can be found here.

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Full post as published by Balkinization on May 12, 2008 (boomark / email).