Law can be described in short as an ordering and regulation of human behaviour.
However, this fails to distinguish it from other modes of ordering and regulation that derive, for example, from morality, religion or social convention.
The exact relationships between these different forms of ordering and whether they can or cannot be clearly distinguished has perhaps been the major source of disagreement among legal theorists.Two kinds of dispute about law have been involved: first as to its source, and second as to its elements and structure.
If, as those theorists commonly described as natural lawyers believe, all law stemmed from divine law or some law of right reason immanent in the nature of things, then all human law must depend in part for its validity on compliance with that higher law.
If, on the other hand, law may proceed independently from or be ‘posited’ by a human legislator or legislators, then it may be considered valid independently of its correspondence with divine or natural law or with justice, morality or reason. This, in brief, was the view adopted by ‘legal positivists’.
In addition to disagreeing about the source and authority of law, legal philosophers have also held different theories about the way in which the elements of the legal system should be characterized. Legal philosophers, such as Thomas Hobbes, Jeremy Bentham and John Austin, depicted the operati on of laws as the issue by a legislator (whether divine or human) of commands or imperatives that emphasized their collective will.
On the other hand, some twentieth-century critics, such as Hans Kelsen and H.L.A.Hart, have pictured legal systems in terms of presumptive norms and rules.Many jurists, particularly in the United States and Europe, have devoted themselves not to formal analyses of the legal system as a whole but to studies of the judicial process or to the interplay of social and economic forces that affect legal institutions and legal decision making.
The so-called realist or instrumentalist school in the United States included John Chipman Gray, Jerome Frank and Karl Llewellyn. In Scandinavia, realist and sceptical theories of law emerged in the work of Axel Hägerström, Karl Olivecrona and Alf Ross (Olivecrona 1939; Ross 1958). Within analytic legal philosophy the dispute between positivist and anti-positivist theories has continued.
One modern form of non-positivist theory is seen in the writings of Ronald Dworkin (1977, 1986). It should also be added that there exists a self-denominated ‘critical legal studies’ movement, originating in the United States, that sees all formal legal structures as manipulated by dominant social interests, and the making of law by judges and legislators as exercises in the deployment of political power.
If this conception of law is correct, the great majority of legal philosophers since Aristotle have been wasting their time.