PHILOSOPHY 34

The “What Is Law?” Question

Our first topic is the question “what is law?” Who cares? Everyone does, they just don’t know it. When you seek to comply with the law, you have to know where to look to find out what the law is. So do judges who have to decide cases and legislators who are trying to make valid laws.

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?

Legislatures need to consult the law too. What makes a bunch of people into a legislature? And among their various pronouncements, some have the status of law while others do not. What is the difference? We use laws to answer both kinds of question. How does this all 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.