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

See all articles by Dan Svantesson

Dan Svantesson

Bond University - School of Law

Date Written: June 8, 2011

Abstract

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

Suggested Citation

Svantesson, Dan, What is ‘Law’, If ‘The Law’ is Not Something that ‘Is’? A Modest Contribution to a Major Question (June 8, 2011). Available at SSRN: https://ssrn.com/abstract=1859719 or http://dx.doi.org/10.2139/ssrn.1859719

Dan Svantesson (Contact Author)

Bond University - School of Law ( email )

Gold Coast, QLD 4229
Australia

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