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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 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 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:
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.
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.
Austin's command theory defined law as a command issued by a sovereign, backed by a sanction. For Austin:
Criticisms of Austin:
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:
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:
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
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.
Morality refers to beliefs about what is right and wrong. Morals can be:
| 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 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:
Lord Patrick Devlin disagreed. In his lecture The Enforcement of Morals (1959), Devlin argued that:
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:
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.
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:
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?
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:
Rawls's theory supports a redistributive approach to justice — for example, progressive taxation and welfare systems that help the poorest.
Criticisms of Rawls:
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
| 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 |
This content is aligned with the AQA A-Level Law specification.