The Nature of Law: An Introduction

Abstract

Imagine the following scenario: driving on a California highway, you are pulled over by a police officer, officiously informing you that you have been caught on his radar exceeding the speed limit and are about to be fined. You are in a philosophical mood, and the police officer happens to be very patient and ready to answer your questions. So first you ask him “Officer, have I done anything wrong?” “Of course you have,” he tells you. “You have exceeded the legal speed limit.” “No, no, that’s not what I mean,” you clarify. “Have I done something really wrong? Morally wrong, for example?” “Well, I don’t know that,” the officer replies. “I only know that you have violated the law.” “And is that necessarily wrong?” you ask. The police officer replies that it is not really for him to tell. He just knows that you violated the law. You realize that this is not leading anywhere, so you try a different tack: “Officer, what makes it the law that the speed limit here is, as you claim, 65 mph?” The officer responds by citing you the relevant section of the California Vehicle Code. “But what makes this code the law?” you ask him. “It is the law in California,” he says, “because the code was duly enacted in 1959 by the California Legislature.” “But what makes that enactment the law?” you ask. “After all, enactment, as you call it, is just an event that happens somewhere-people gather in a hall, talk, argue, raise their hands, etc.—why is that the law?” Still patient, the police officer explains to you that the California Legislature is an institution created in accordance with the Constitution of California, and granted by it the authority to enact such laws as the California Vehicle Code according to certain prescribed procedures. “Now I see,” you reply. “The California Vehicle Code is the law around here because it was enacted by a legislature, and the legislature’s authority to make such laws was granted to it by some other law, the Constitution of California. I get it. But what makes the Constitution of California the law around here?” The police officer knows the answer: “The California Constitution is the law because it was duly enacted by the authorization granted to the people of California to have such a constitution by the Constitution of the United States.” Still, you are not quite satisfied. “What makes the U.S. Constitution the law?” you ask. “The U.S. Constitution? It is the supreme law of the land!” the officer proudly proclaims. “Yes, yes,” you tell him. “I know that it is what people say. But what makes it the supreme law of the land?” you ask him again. Not surprisingly at this point the police officer loses his patience, hands you the citation and off he goes.