Where does law come from and where does it get its authority?

Foundations of landlord and tenant law – part 3

This post was not in the original ‘foundation’ series, but I thought it might be good to slip in a general legal ‘jurisprudence’ post. A bit of legal theory before diving down into the detail.

What is jurisprudence?

Jurisprudence is the theory of law, a sort of applied philosophy. It is the study of various fundamental questions about law, perhaps the most fundamental of which is ‘where does law get its authority from?’

I did a paper in jurisprudence when I did my law degree and was one of the few people who actually enjoyed it. It is a difficult subject and I had to read most of the textbooks with a dictionary beside me. However I like ideas, and jurisprudence is full of them.

Looking back after a period of some 30 years and without having read a jurisprudence textbook since that time, this is how I remember the various arguments. Note that I have taken a lot of liberties and I have merged some ideas together.

The Natural Law argument

This is the view that our law tries to replicate a greater law which stands outside us and is eternal and everlasting.

There is a very famous part of Plato’s Republic, known as the allegory of the cave, where Socrates (pictured, right) describes a cave where people live chained to a wall and see shadows of things passing before a fire. The shadows are their reality, rather than the things themselves, which (while they are in the cave) they never see.

The ‘natural law’ argument is also a religious approach. Whereby our laws are pale reflections of ‘Gods law’ – for example as set out in the various religious texts.

I suppose the best example of this in practice is Lord Atkin’s judgment in the famous case of Donoghue v.Stevenson in 1932 when he looked to the bible when developing his ‘neighbour’ principle which is the foundation of the law of negligence.

The social acceptance argument

This is that law has its authority because we all accept and agree that it does. That there is in effect a social contract – that the law-makers and administrators create fair and just rules (or at least try to) and we all agree to abide by them.

Indeed many of the laws we have will have come originally from the people themselves – many of our oldest laws date back to custom and practice that evolved from people and were then taken up and enshrined in law.

For example, many easements (in property law) come from medieval custom and practice.

The changing law for a changing society argument

This I think stems back to the work of the anthropologist Margaret Mead. It is that our laws should change as society changes. So the legal system for a simple agrarian society will be very different from that needed by a complex developed society such as ours.

One of the big problems we have at the moment is that things are changing so quickly the law is not able to keep up with it.

For example electronic signatures. The law relating to legal documentation dates back to the nineteenth century and is based on ‘wet’ signatures and, until recently, seals (as in ‘signed, sealed, delivered’).

Then the Torts (Interference with Goods) Act which covers the procedures ‘involuntary bailees’ need to follow when seeking to deal with items left in their possession (such as tenants leaving things behind when they vacate a property) was made in 1977 – long before texts and emails.

Our lawmakers are trying to keep up and reams of law are pumped out of our law-making factory at Westminster every year. Two problems of this though are

1. that much of it is not properly scrutinised and so sometimes inadequate drafting is not corrected (consider the tenancy deposit legislation) and
2. that most of us are unaware of much of the law that is being made. And being unaware of a law makes compliance difficult.

Conclusion

I personally think that the true answer is a mixture of all of these. However, we need to take care. Law is the glue which keeps society together or alternatively the oil which greases the society wheels which help us live together in harmony (well sort of).  But

• If it does not appear to reflect any ‘greater good’
• If people no longer accept it, or
• If it is no longer suitable for the way that we live now

Then this could have serious consequences for society.

On the whole, I think our laws are largely just, but there is room for improvement.

Next week the series continues with a look back into history.

Photo credit – the picture of Socrates is Wikimedia Commons