What is ‘Law’, If ‘The Law’ is Not Something that ‘Is’? A Modest Contribution to a Major Question
22 Pages Posted: 9 Jun 2011 Last revised: 2 Sep 2011
Date Written: June 8, 2011
Having proposed an alternative definition of what “law” (as a jurisprudential concept) is, this article seeks to demonstrate the impossibility of identifying “the law” (as in what law-makers announce, relative to a particular jurisdiction) as something that is in a particular way. Rather, the law is always a more or less abstract range of options.
Thus, law-makers, such as legislators and judges, do not express the law, but something less than the law – something limited by biases.
Drawing upon this conclusion, the article calls for a reassessment of how we view the role of law-makers. We need to remove the mystery that surrounds the law. Doing so will make clear that law-makers must be open about their unavoidable biases – we need greater transparency. The article concludes that this transparency can only be gained by requiring law-makers to declare their inescapable biases where they impact on their lawmaking.
Keywords: jurisprudence, legal theory, legal philosophy, the concept of law, legal transparency
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By Torben Spaak