The “what is law?” question

Our first topic is the question “what is law?” The discussions of this can become so abstract that a reader may be forgiven for wondering if anyone cares what the answer is.

(Hey, the class is usually oversubscribed. We test your commitment in the first few weeks.)

Jokes aside, there is a pretty compelling answer. Everyone cares about this question, they just don’t know that they do. When you seek to comply with the law, you have to know where to look to find out what the law is. So do lawyers who seek to advise their clients and judges who have to decide cases.

Suppose you are a judge. Two sides come to you with different understandings of what the law says about their case. You have to decide which one is correct. Where do you look? One place you might go is statutes: the things passed by legislatures and called “laws.” That is pretty obvious.

However, many courts do not find statutes alone to be enough to settle a dispute. Think about the higher appeals courts. A case that gets to them probably does not have an obvious solution laid out in the statutes. If it did, the lower courts would have found it. All judges can read, after all. So judges frequently go outside of statutes to settle cases. But they still claim to be interpreting the law when the do so. If that’s right, there must be sources of law other than statutes. What are they and how do they make laws?

And even if you managed to get by with statutes alone, you would still have to take a lot for granted. You have to know that the legislature is a source of laws, what distinguishes the real legislature from fake ones, and what the legislature’s procedures for making valid laws are. How does all of that work?

One of the tasks of philosophy is to expose things that we take for granted. That’s what the “what is law?” question does for the law.