Law as Referent
The Journal Jurisprudence, Vol. 10, pp. 224-270, July 2011
46 Pages Posted: 30 Jan 2012
Date Written: July 1, 2011
In this article I suggest that 'the law,' (hereinafter the LAW) can be most functionally understood as a conglomeration of referent ideals which emanate from the minds of law creators, and are the source of what we regularly understand as laws. I separate from the concept of the LAW the usual suspects of constitutions, codes, acts, and charters, etc. I separate these from their inceptional ideals and suggest we ascribe a label to these familiar kinds of categories such as 'lower order laws,' being careful to confine our discussions of them with the exclusive use of a small 'l' (law), whenever grammatically possible. To make this separation clearer, I have chosen to use the word 'referent' to represent the higher order LAW which the lower order laws all refer to in one way or another. By naming ideals 'referents' there is a constant reminder to the reader that laws are ontologically inseparable from the ideals which they refer to. The laws, then, are referrers of a sort, in other words they refer to something, and that something is the referent ideals which first existed in the minds of those responsible for the creation of laws. These referents, the LAW, also have an ongoing existence by the very fact of the various laws’ continued use. The fact that law creators may be long dead or have changed their views does not change the fact that those initial referents still exist as the basis for any particular law in question.
Keywords: law, referent, philosophy of law, source of law, what is law, jurisprudence
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