If jurisprudence begs a single question it must be "What is Law?" Competing definitions of the law undeniably assert themselves in the literature of jurisprudence and in daily life but agreement upon a definition is virtually nil. Take a stroll with me down definition lane.
Is law a contract?
"The justice which arises from nature is a pledge of mutual advantage to restrain men from harassing one another and save them from being harmed. For all living things which have not been able to make compacts not to harm one another or be harmed, nothing ever is either just or unjust: and likewise too for all tribes of men which have been unable or unwilling to make compacts not to harm or be harmed. Justice never is anything in itself, but in the dealings of men with one another in any place whatever and at any time it is a kind of compact not to harm or be harmed." Epicurus (300 B.C.)
"To refrain mutually from injury, from violence, from exploitation, and put one's will on a par with that of others: this may result in a certain rough sense in good conduct among individuals when the necessary conditions are given (namely, the actual similarity of the individuals in amount of force and degree of worth, and their co-relaion within one organisation). As soon, however, as one wished to take this principle more generally, and if possible even as the fundamental principle of society, it would immediately disclose what it really is-namely, a Will to the denial of life, a principle of dissolution and decay. Here one must think profoundly to the very basis and resist all sentimental weakness: life itself is essentially appropriation, injury, conquest of the strange and weak, suppression, severity, obtrusion of peculiar forms, incorporation, and at the very least, putting it mildest, exploitation. "Exploitation" does not belong to a depraved, or imperfect and primitive society; it belongs tothe nature of the living being as a primary organic function." Nietzsche, The Transmutation of Values
Is law morality?
"Well, a just law is a law that squares with a moral law. It is a law that squares with that which is right, so that any law that uplifts human personality is a just law. Whereas, that law which is out of harmony with the moral is a law which does not square with the moral law of the universe. It does not square with the law of God, so for that reason it is unjust and any law that degrades the human personality is an unjust law." Martin Luther King, Love, Law and Civil Disobedience
Is law convention?
"After one person or group decided to use this to stand for that, other people decided to do the same thing, and the practice spread; that is, these symbols were adopted by common convention. A symbol, such as a word, designates a referent by agreement or convention. Human decisions are thus required in order to establish the meaning of symbols and such decisions are arbitrary ones. Names arise as a result of human agreements, or stipulations."----"I think these passages are typical of the less guarded remarks on this subject to be found in the literature. But on reflection, we can see that language, as such, could not have originated by having decisions adopted by "common convention." As Russell has said, "We can hardly suppose a parliament of hitherto speechless elders meeting together and agreeing to call a cow a cow and a wolf a wolf." By the nature of the case, making agreements and conventions presupposes that people already have a language in which to carry on these activities. No one knows how language originated, but at least we can be certain that it was in no such way as this." Alston, The Philosopy of Language
Is law duty?
"Another finds himself forced by necessity to borrow money. He knows that he will not be able to repay it, but sees also that nothing will be lent to him, unless he promises stoutly to repay it in a definite time. He desires to make this promise, but he has still so much conscience as to ask himself: Is it not unlawful and inconsistent with duty to get out of a difficulty in this way? Suppose, however, that he resolves to do so, then the maxim of his action would be expressed thus: When I think myself in want of money, I will borrow money and promise to repay it, although I know that I never can do so. Now this principle of self-love or of one's own advantage may perhaps be consistent with my whole future welfare: but the question now is, Is it right? I change then the suggestion of self-love into a universal law, and state the question thus: How would it be if my maxim were a universal law? Then I see at once that it could never hold as a universal law of nature, but would necessarily contradict itself. For supposing it to be a universal law that everyone when he thinks himself in a difficulty should be able to promise whatever he pleases, with the purpose of not keeping his promise, the promise itself would become impossible, as well as the end that one might have in view in it, since no one would consider that anything was promised to him, but would ridicule all such statements as vain pretenses." Immanuel Kant, Fundamental Principles of the Metaphysics of Morals
Is law natural?
"More than anything else," wrote Roscoe Pound in 1923, "the theory of natural rights and its consequence, the nineteenth century theory of legal rights, served to cover up what the legal order really was and what court and judge and lawmaker were really doing." But it was a fictitious cover, and as with the Emperor's new clothes, the fiction was transparent to the eye of the realist. For law could not permanently lag behind the other social sciences, nor could it be allowed indefinitely to short-circuit the powerhouse of governmental operations." Henry Commager, The American Mind
Is law rational?
"Just as water flows down slopes, settles in hollows and is confined to riverbeds, so vertical thinking flows along the most probable paths and by its very flow increases the probability of those paths for the future. If vertical thinking is high-probability thinking, then lateral thinking is low-probability thinking. New channels are deliberately cut to alter the flow of the water. The old channels are dammed up in the hope that the water will seek out and take to new and better patterns of flow. Sometimes the water is even sucked upwards in an unnatural fashion. When the low-probability line of thought leads to an effective new idea there is a 'eureka moment', and at once the low-probability approach acquires the highest probability. It is the moment when the water sucked upward with difficulty forms a siphon and at once flows freely. This moment is always the aim of lateral thinking." De Bono, New Think
Is law emotion?
"So those who have denied that there are "objective moral characteristics" have not wanted to deny that Brown's action was wrong or that keeping promises is right. They have wanted to point out that rightness and wrongness are a matter of what is felt in the heart, not of what is seen with the eyes or heard with the ears. They have wanted to emphasize the way in which "Promise-keeping is right" resembles "Going abroad is exciting," "Stories about mothers-in-law are comic," "Bombs are terrifying", and differs from "Roses are red" and Sea-water is salt." This does not prevent you from talking about the moral order, or the moral world, if you want to: but it warns you not to forget that the only access to to the moral world is through remorse and approval and so on: just as the only access to the world of comedy is through laughter, and the only access to the coward's world is through fear." P.F. Strawson, Ethical Intuitionism
Is law a command?
"We must now raise the question of whether our explanations really explain facts. For example, we have said that the falling of a book is explained by the fact that it is heavier than air and the theory that objects heavier than air fall when not supported. Does this really explain anything? We could explain this theory in turn by referring to the Law of Gravitation. But why does the Law of Gravitation hold? Clearly there is no end to these questions. This phenomenon is a common one in experience with children. No matter what answer we give them they will come back with a new "Why.' For three or four stages the parents will be patient and will answer the children's questions, but soon the children will exhaust a parent's knowledge of theories and the parent will then have to come back with "Children should be seen and not heard." If the child persists in coming back with an additonal why, the time has come for the parent to demonstrate his superior physical strength." Kemeny, A Philosopher Looks at Science
Is law precedent?
"There was once a man of Sung who tilled his field. In the middle of the field stood a stem of a tree, and one day a hare in full course rushed against that stem, broke its neck, and died. Thereupon the man left his plough and stood waiting at that tree in the hope that he would catch another hare. But he never caught another hare and was ridiculed by the people of Sung. If, however, you wish to rule the people of today by the methods of government of the early kings, you do exactly the same thing as the man who waited by the tree. Therefore affairs go according to their time, and preparations are made in accordance with affairs." Han Fei Tzu
Is law ethics?
"But if our opponent happens to have undergone a different process of moral "conditioning" from ourselves, so that, even when he acknowledges all the facts, he still disagrees with us about the moral value of the actions under duscussion, then we abandon the attempt to convince him by argument. We say that it is impossible to argue with him because he has a distorted or undeveloped moral sense; which signifies merely that he employs a different set of values from our own. We feel that our own system of values is superior, and therefore speak in such derogatory terms of his. But we cannot bring forward any arguments to show that our system is superior. For our judgment that it is so is itself a judgment of value, and accordingly outside the scope of argument. It is because argument fails us when we come to deal with pure questions of value, as distinct from questions of fact, that we finally resort to mere abuse." Ayer, Ethics as Emotive Expression
Is law of the people and for the people?
"Before the Law stands a doorkeeper on guard. To this doorkeeper there comes a man from the country who begs for admittance to the Law. But the doorkeeper says that he cannot admit the man at the moment. The man, on reflection, asks if he will be allowed, then, to enter later. 'It is possible,' answers the doorkeeper, 'but not at this moment.' Since the door leading into the Law stands open as usual and the doorkeeper stands to one side, the man bends down to peer through the entrance. When the doorkeeper sees that, he laughs and says: 'If you are so strongly tempted, try to get in without my permission. But note that I am powerful. And I am only the lowest doorkeeper. From hall to hall keepers stand at every door, one more powerful than the other. Even the third of these has an aspect that even I cannot bear to look at.' These are difficulties which the man from the country has not expected to meet; the Law, he thinks should be accessible to every man and at all times, but when he looks more closely at the doorkeeper in his furred robe, with his huge pointed nose and long, thin, Tartar beard, he decides that he had better wait until he gets permission to enter. The doorkeeper gives him a stool and lets him sit down at the side of the door. There he sits waiting for days and years.
Before he dies, all that he has experienced during the whole time of his sojourn condenses in his mind into one question, which he has never yet put to the doorkeeper. He beckons the doorkeeper, since he can no longer raise his stiffening body. The doorkeeper has to bend far down to hear him, for the difference in size between them has increased very much to the man's disadvantage. 'What do you want to know now?' asks the doorkeeper, 'you are insatiable.' 'Everyone strives to attain the Law,' answers the man, 'how does it come about then, that in all these years no one has come seeking admittance but me?' The doorkeeper perceives that the man is at the end of his strength and that his hearing is failing, so he bellows in his ear: "No one but you could gain admission through this door, since this door was intended only for you. I am now going to shut it.' " Kafka, The Three Parables
Is law simply the work of lawyers?
' Here arises a new question, Theodorus, which threatens to be more serious than the last.
Theod. Well, Socrates, we have plenty of leisure.
Soc. That is true, and your remark recalls to my mind an observation which I have often made, that those who have passed their days in the pursuit of philosophy are ridiculously at fault when they have to appear and speak in court. How natural is this!
Theod. What do you mean?
Soc. I mean to say, that those who have been trained in philosophy and liberal pursuits are as unlike those who from their youth upwards have been knocking about in the courts and such places, as a freeeman is in breeding unlike a slave.
Theod. In what is the difference seen?
Soc. In the leisure spoken of by you, which a freeman can always command: he has his talk out in peace, and, like ourselves, he wanders at will from one subject to another, and from a second to a third, --if the fancy takes him, he begins again, as we are doing now, caring not whether his words are many or few; his only aim is to attain the truth. But the lawyer is always in a hurry; there is the water of the clepsydra driving him on, and not allowing him to expatiate at will: and there is his adversary standing over him, enforcing his rights: the indictment, which in their phraseology is termed the affidavit, is recited at the time: and from this he must not deviate. He is a servant, and is continually disputing about a fellow-servant before his master, who is seated, and has the cause in his hands: the trial is never about some indifferent matter, but always concerns himself: and often the race is for his life. The consequence has been, that he has become keen and shrewd; he has learned how to flatter his master in word and indulge him in deed; but his soul is small and unrighteous. His condition, which has been that of a slave from his youth upwards, has deprived him of growth and uprightness and independence; dangers and fears, which were too much for his truth and honesty, came upon him in early years, when the tenderness of youth was unequal to them, and he has been driven into crooked ways; from the first he has practised deception and retaliation, and has become stunted and warped. And so he has passed out of youth into manhood, having no soundness in him; and is now, as he thinks, a master in wisdom. Such is the lawyer, Theodorus.' Plato
Is law merely a word?
"That's a great deal to make one word mean," Alice said in a thoughtful tone. "When I make a word do a lot of work like that," said Humpty Dumpty, "I always pay it extra." Lewis Carroll