DEFINITIONS OF LAW
The term law conjures up a variety of images to the public. For some, law may mean getting a speeding ticket, being barred from buying beer legally if underage, or complaining about the local “pooper-scooper” ordinance. For others, law is paying income tax, taking off shoes and going through a body scanner at the airport, signing a prenuptial agreement, being evicted, or getting fined or going to jail for growing marijuana. For still others, law is concerned with what legislators enact or judges declare. Law means all these and more. Even among scholars, there is no agreement on the term. Some of the classic and contemporary definitions of law are introduced here to illustrate the diverse ways of defining it.
The question “What is law?” still haunts legal thought today, and probably more scholarship has gone into defining and explaining the concept of law than into any other concept still in use in sociology and jurisprudence. Comprehensive reviews of the literature by Ronald L. Akers and Richard Hawkins (1975:5-15), Lisa J. McIntyre (1994:10-29), and Robert M. Rich (1977) indicate that there are almost as many definitions of law as there are theorists. E. Adamson Hoebel (1954:18) comments that “to seek a definition of the legal is like the quest for the Holy Grail.” He cites Max Radin’s warning: “Those of us who have learned humility have given over the attempt to define law.”
In our review of the many definitions of law, let us first turn to two great American jurists, Benjamin Nathan Cardozo and Oliver Wendell Holmes, Jr. Cardozo (1924:52) defined law as “a principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged.” Holmes (1897:461) declared that “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” For Holmes, judges make the law on the basis of past experience. In both of these definitions, the courts play an important role. These are pragmatic approaches to law as revealed by court-rendered decisions. Implicit in these definitions is the notion of courts being backed by the authoritative force of a political state.
From a sociological perspective, one of the most influential and timeless definitions of law is that of Max Weber. Starting with the idea of an order characterized by legitimacy, he suggests: “An order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation, will be applied by a staff of people holding themselves especially ready for that purpose” (Weber, 1954:5). Weber argues that law has three basic features that, taken together, distinguish it from other normative orders, such as custom or convention. First, pressures to comply with the law must come externally in the form of actions or threats of action by others regardless of whether a person wants to obey the law or does so out of habit. Second, these external actions or threats always involve coercion or force. Third, those who instrument the coercive threats are individuals whose official role is to enforce the law. Weber refers to “state” law when the persons who are charged to enforce the law are part of an agency of political authority.
Weber contends that customs and convention can be distinguished from law because they do not entail one or more of these features. Customs are rules of conduct in defined situations that are of relatively long duration and are generally observed without deliberation and “without thinking.” Customary rules of conduct are called usages, and there is no sense of duty or obligation to follow them. Conventions, by contrast, are rules for conduct, and they involve a sense of duty and obligation. Pressures, which usually include expressions of disapproval, are exerted on individuals who do not conform to conventions. Weber (1954:27) points out that, unlike law, a conventional order “lacks specialized personnel for the instrumentation of coercive power.”
Although a number of scholars accept the essentials of Weber’s definition of law, they question two important points. First, some contend that Weber places too much emphasis on coercion and ignores other considerations that may induce individuals to obey the law. For example, Philip Selznick (1968, 1969:4-8) argues that the authoritative nature of legal rules brings about a special kind of obligation that is not dependent on the use or threat of coercion or force. Many laws are obeyed because people feel it is their duty to obey. The second point concerns Weber’s use of a special staff. Some scholars claim that Weber’s definition limits the use of the term law in cross-cultural and historical contexts. They argue that the word staff implies an organized administrative apparatus that may not exist in certain illiterate societies. E. Adamson Hoebel (1954:28), for instance, proposes a less-restrictive term by referring to individuals possessing “a socially recognized privilege,” and Ronald L. Akers (1965:306) suggests a “socially authorized third party.” Of course, in modern societies, law provides for a specific administrative apparatus. Still, these suggestions should be kept in mind while studying the historical developments of law or primitive societies.
From a different perspective, Donald Black (1976) contends that law is essentially governmental social control. In this sense, law is “the normative life of a state and its citizens, such as legislation, litigation, and adjudication” (Black, 1976:2). He maintains that several styles of law may be observed in a society, each corresponding to a style of social control. Four styles of social control are represented in law: penal, compensatory, therapeutic, and conciliatory. In the penal style, the deviant is viewed as a violator of a prohibition and an offender is to be subjected to condemnation and punishment (for example, a drug pusher). In the compensatory style, a person is considered to have a contractual obligation and, therefore, owes the victim restitution (for example, a debtor failing to pay the creditor). Both of these styles are accusatory where there is a complainant and a defendant—a winner and a loser. According to the therapeutic style, the deviant’s conduct is defined as abnormal; the person needs help, such as treatment by a psychiatrist.
In the conciliatory style, deviant behavior represents one side of a social conflict in need of resolution without consideration as to who is right or who is wrong (for example, marital disputes). These last two styles are remedial, designed to help people in trouble and ameliorate a bad social situation. Elements of two or more of these styles may appear in a particular instance; for example, when a drug addict is convicted of possession and is granted probation contingent upon his or her participation in some kind of therapy program.
These definitions illustrate some of the alternative ways of looking at law. It is the law’s specificity in substance, its universality of applicability, and the formality of its enactment and enforcement that set it apart from other devices for social control. Implicit in these definitions of law is the notion that law can be analytically separated from other normative systems in societies with developed political institutions and specialized lawmaking and law-enforcement agencies. The paramount function of law is to regulate and constrain the behavior of individuals in their relationships with one another. Ideally, law is to be used only when other formal and informal methods of social control fail to operate or are inadequate for the job. Finally, law can be distinguished from other forms of social control primarily in that it is a formal system embodying explicit rules of conduct, the planned use of sanctions to ensure compliance with the rules, and a group of authorized officials designated to interpret the rules and apply sanctions to violators. From a sociological perspective, the rules of law are simply a guide for action, and law would remain meaningless without interpretation and enforcement (Benda-Beckman et al.,
2009). Moreover, law can be studied as a social process, instrumented by individuals during social interaction. More generally, law consists of the behaviors, situations, and conditions for making, interpreting, and applying legal rules that are backed by the state’s legitimate coercive apparatus for enforcement.