The Nature of Law

Introduction

What is law? This deceptively simple question has occupied legal theorists for centuries. Understanding the nature of law is essential for AQA A-Level Law, as it underpins every other area of the specification. In this lesson, we explore the major schools of legal thought — natural law theory and legal positivism — before examining the critical relationships between law and morality, and between law and justice.

Natural Law Theory

Natural law theory is one of the oldest approaches to understanding law. It holds that law and morality are intrinsically linked, and that an unjust law is not truly a law at all. The Latin phrase often associated with this school of thought is lex iniusta non est lex — "an unjust law is no law."

Aristotle (384–322 BC)

Aristotle distinguished between natural justice and conventional justice. Natural justice, he argued, has the same force everywhere and does not depend on what people think about it. Conventional justice, by contrast, is that which is established by agreement among particular communities. For Aristotle, the purpose of law was to achieve the common good and to help citizens live virtuous lives.

Key ideas from Aristotle:

• Law should promote virtue and the good life.
• There is a higher moral order that human laws should reflect.
• Justice is the chief virtue, and law is the mechanism for achieving it.

St Thomas Aquinas (1225–1274)

Aquinas is the most influential natural law theorist. He developed a comprehensive framework that identified four types of law:

Type of Law	Definition	Example
Eternal law	God's plan for the entire universe	The laws of nature and physics
Divine law	Rules revealed directly by God	The Ten Commandments
Natural law	Principles discoverable by human reason	The right to life, prohibition of murder
Human law	Rules made by humans to govern society	Acts of Parliament, common law

For Aquinas, human law must be derived from natural law. If a human law contradicts natural law, it is not a valid law and there is no moral obligation to obey it. He stated: "A law that is not just seems to be no law at all."

Aquinas argued that natural law could be discovered through the use of reason — the capacity that distinguishes humans from animals. He identified certain basic goods that natural law protects, including the preservation of life, the education of the young, and the worship of God.

Strengths of Natural Law

• Provides a moral benchmark against which human laws can be measured.
• Historically justified resistance to unjust regimes (e.g., the Nuremberg Trials, where Nazi officers were convicted despite following German law).
• Affirms universal human rights that transcend national boundaries.

Weaknesses of Natural Law

• Assumes the existence of a higher moral order, which is difficult to prove empirically.
• Different people and cultures disagree about what is "natural" or "moral."
• Can be used to justify imposing one group's moral views on others.
• The idea that an unjust law is "not a law" is practically unhelpful — unjust laws still have real consequences.

Legal Positivism

Legal positivism takes the opposite view to natural law theory. It holds that law and morality are separate — law is a social fact, and its validity depends on how it was made, not on whether it is morally good.

John Austin (1790–1859)

Austin's command theory defined law as a command issued by a sovereign, backed by a sanction. For Austin:

• Law = command + sovereign + sanction.
• The sovereign is the person or body that is habitually obeyed by the bulk of the population but does not habitually obey anyone else.
• A law is valid if it comes from the sovereign, regardless of its moral content.

Criticisms of Austin:

• Not all laws are commands (e.g., laws granting powers, such as the power to make a will).
• The concept of a single "sovereign" is difficult to apply in modern democracies with complex constitutional arrangements.
• It ignores the role of custom, judicial decisions, and international law.

Jeremy Bentham (1748–1832)

Bentham was a utilitarian and a legal positivist. He distinguished between expositorial jurisprudence (what the law is) and censorial jurisprudence (what the law ought to be). Bentham argued that these should be kept separate — one can describe the law accurately while also criticising it morally.

Bentham's key contributions:

• Law should be judged by its utility — whether it promotes the greatest happiness of the greatest number.
• He criticised natural law theory as "nonsense upon stilts."
• He advocated for codification of the law to make it clear, accessible, and rational.

H.L.A. Hart (1907–1992)

Hart developed the most sophisticated version of legal positivism in his seminal work The Concept of Law (1961). He rejected Austin's command theory and proposed a more nuanced account based on rules.

Hart distinguished between two types of rules:

Type of Rule	Function	Example
Primary rules	Rules that impose duties on citizens	Criminal offences (e.g., murder, theft)
Secondary rules	Rules about how primary rules are created, changed, and adjudicated	Rules of Parliament, rules of court procedure

Among secondary rules, Hart identified three crucial categories:

1. The Rule of Recognition — the ultimate rule that identifies which rules count as law in a given legal system (e.g., in the UK, an Act of Parliament is law).
2. Rules of Change — rules that allow the law to be modified (e.g., the legislative process).
3. Rules of Adjudication — rules that determine who has authority to decide disputes (e.g., the court system).

Hart acknowledged that law and morality often overlap but insisted they are conceptually separate. A law can be morally wrong and still be legally valid.

graph TD
    A["Legal Theory"] --> B["Natural Law"]
    A --> C["Legal Positivism"]
    B --> D["Aquinas: Unjust law is no law"]
    B --> E["Aristotle: Law promotes virtue"]
    C --> F["Austin: Command + Sovereign + Sanction"]
    C --> G["Hart: Primary + Secondary Rules"]
    C --> H["Bentham: Law is, not law ought"]
    style B fill:#2980b9,color:#fff
    style C fill:#e67e22,color:#fff

Law and Morality

The relationship between law and morality is one of the most important debates in legal theory. While law and morality overlap significantly, they are not identical.

Defining Morality

Morality refers to beliefs about what is right and wrong. Morals can be:

• Personal — an individual's own beliefs about right conduct.
• Societal — shared standards accepted by a community at a given time.

Similarities Between Law and Morality

• Both regulate human behaviour.
• Both are concerned with right and wrong conduct.
• Many legal rules have a moral basis (e.g., prohibitions on murder, theft, fraud).
• Both can change over time to reflect evolving social attitudes.

Differences Between Law and Morality

Feature	Law	Morality
Source	Created by Parliament, courts	Develops from society, religion, conscience
Enforcement	Enforced by state sanctions (fines, imprisonment)	Enforced by social pressure, conscience
Scope	Applies to everyone in the jurisdiction	May vary between individuals and groups
Certainty	Written down, relatively certain	Often vague and contested
Change	Changed by formal processes (legislation, precedent)	Evolves gradually and informally

The Hart-Devlin Debate

The most famous debate about the relationship between law and morality arose from the Wolfenden Report (1957). The Wolfenden Committee recommended that homosexual acts between consenting adults in private should be decriminalised, arguing that "there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business."

Professor H.L.A. Hart supported the Wolfenden Committee's position. Drawing on John Stuart Mill's harm principle, Hart argued that:

• The law should only intervene to prevent harm to others.
• Private moral conduct is not the law's concern.
• Legal enforcement of morality is an unacceptable intrusion into individual liberty.
• Society's moral views are not a sufficient reason to criminalise behaviour.

Lord Patrick Devlin disagreed. In his lecture The Enforcement of Morals (1959), Devlin argued that:

• Society has a shared morality that binds it together, just as a shared government does.
• If that shared morality disintegrates, society itself will disintegrate.
• Society therefore has the right to use the law to enforce its moral standards, just as it has the right to defend itself against treason.
• The test for when the law should intervene is the "reasonable man" test — the standard of the "man on the Clapham omnibus." If conduct causes feelings of "intolerance, indignation, and disgust" in the ordinary person, the law is justified in prohibiting it.

Key Cases on Law and Morality

R v Brown [1994] — A group of consenting adult men engaged in sadomasochistic activities in private. They were convicted of assault occasioning actual bodily harm (ABH) and wounding under the Offences Against the Person Act 1861, despite the fact that all participants had consented. The House of Lords upheld the convictions by a 3-2 majority, ruling that consent was not a valid defence to ABH or above. Lord Templeman stated that society was entitled to protect itself against "a cult of violence." This case suggests the law does enforce morality, as the participants were punished for private consensual conduct.

R v Wilson [1997] — A husband branded his initials on his wife's buttocks with a hot knife at her request. The Court of Appeal quashed his conviction for ABH, holding that this was analogous to tattooing and was a matter of personal autonomy within a marriage. This case appears inconsistent with R v Brown, and critics have argued the different outcomes reflect judicial attitudes to heterosexual versus homosexual relationships rather than consistent legal principle.

Other relevant examples:

• Gillick v West Norfolk and Wisbech Area Health Authority [1986] — Raised moral questions about providing contraceptive advice to under-16s.
• The Abortion Act 1967 and Human Fertilisation and Embryology Act 1990 — Legislation reflecting evolving moral views on reproductive rights.
• The Marriage (Same Sex Couples) Act 2013 — Law eventually changing to reflect shifting moral attitudes.

Law and Justice

Justice is a concept closely related to, but distinct from, law. A legal system should aspire to be just, but not all laws achieve justice, and injustice can occur even within a functioning legal system.

Types of Justice

Substantive Justice — concerned with just outcomes. The rules themselves should be fair. For example, the principle that murder should be punished more severely than theft reflects substantive justice. If a law produces unfair outcomes, it is substantively unjust.

Procedural Justice — concerned with fair processes. Even if the outcome is unfavourable, justice is served if the process was fair. Key elements include:

• The right to a fair trial (Article 6 ECHR).
• The right to be heard.
• An impartial decision-maker.
• The rule against bias (nemo iudex in causa sua — no one should be a judge in their own cause).

Distributive Justice — concerned with the fair allocation of resources and benefits in society. This raises questions about how wealth, opportunities, and burdens should be distributed. Should everyone get an equal share, or should distribution be based on need, merit, or some other criterion?

John Rawls (1921–2002) — A Theory of Justice

Rawls proposed a thought experiment known as the "veil of ignorance." He asked: what principles of justice would rational people choose if they did not know what position they would occupy in society — their race, gender, wealth, abilities, or social class?

Behind this veil of ignorance, Rawls argued that people would choose two principles:

1. The Liberty Principle — each person should have the maximum amount of basic liberty compatible with the same liberty for others.
2. The Difference Principle — social and economic inequalities are only justified if they benefit the least advantaged members of society.

Rawls's theory supports a redistributive approach to justice — for example, progressive taxation and welfare systems that help the poorest.

Criticisms of Rawls:

• Robert Nozick argued that Rawls's theory unjustly restricts individual liberty and property rights.
• The veil of ignorance is an abstract thought experiment that may not reflect how real people make decisions.
• It is difficult to determine in practice which inequalities benefit the least advantaged.

graph TD
    A["Types of Justice"] --> B["Substantive Justice"]
    A --> C["Procedural Justice"]
    A --> D["Distributive Justice"]
    B --> E["Fair rules and outcomes"]
    C --> F["Fair processes and procedures"]
    D --> G["Fair allocation of resources"]
    D --> H["Rawls: Veil of Ignorance"]
    H --> I["Liberty Principle"]
    H --> J["Difference Principle"]
    style A fill:#8e44ad,color:#fff
    style B fill:#2980b9,color:#fff
    style C fill:#27ae60,color:#fff
    style D fill:#e67e22,color:#fff

Exam Tips

• Compare natural law and legal positivism by using specific theorists (Aquinas vs Hart, for example) rather than general statements.
• Use cases such as R v Brown and R v Wilson to illustrate the law-morality overlap — examiners reward case application.
• The Hart-Devlin debate is a favourite exam topic. Be prepared to explain both sides and evaluate which is more persuasive.
• When discussing justice, always distinguish between the three types (substantive, procedural, distributive) and use Rawls as your key theorist.
• Remember that the Wolfenden Report (1957) led eventually to the Sexual Offences Act 1967, which partially decriminalised homosexuality in England and Wales.
• A strong answer will use legal terminology precisely — do not confuse "morality" with "justice."

Summary

Concept	Key Points
Natural Law	Law and morality are linked; unjust law is no law (Aquinas, Aristotle)
Legal Positivism	Law and morality are separate; validity depends on source not content (Austin, Hart, Bentham)
Law vs Morality	Hart: law should not enforce private morality; Devlin: shared morality must be protected
Key Cases	R v Brown [1994] (morality enforced); R v Wilson [1997] (personal autonomy)
Law vs Justice	Substantive (fair rules), procedural (fair process), distributive (fair allocation)
Rawls	Veil of ignorance; liberty principle and difference principle

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This content is aligned with the AQA A-Level Law specification.