Let’s have a look at the very basic, but fundamental, question of ‘what is law’. In the following, we seek a definition of law and the nature of ‘the law’.
Ethics and Morality
A natural starting point for doing so is to look at the concepts of ethics and morality.
Certainly, what we as a society consider to be ethical or moral behavior must provide some type of guidance as to what the law tells us to do.
Put simply, ethical or moral behavior is behavior that is in line with societal expectations.
Conversely, unethical or immoral behavior is something that society deems wrong based on informal norms and customs.
Law – Enforceable
Let’s contrast that with “law”.
Law is not about informal customs or norms. Law consists of enforceable rules.
Moreover, law is not necessarily – or not fully – reflective with what society deems to be “moral”. For example, driving slightly over the speed limit may not be seen by some as immoral, but it is against the law.
At the same time, the law does not prohibit all behavior that society may perceive as “bad” or unethical. An action that is unethical may nonetheless be legal. This can often be seen in the business world.
Take for example the case of United States v. Brown, decided by the US Court of Appeals for the 11th Circuit.
In its decision, the court noted:
“It is true that these men behaved badly. But, ‘bad men, like good men, are entitled to be tried and sentenced in accordance with law.’ … And, the fraud statutes do not cover all behavior which strays from the ideal; Congress has not yet criminalized all sharp conduct, manipulative acts, or unethical transactions.”US v. Brown, 79 F.3d 1550 (11th Cir. 1996)
As you can see, the 11th Circuit here clearly draws a line between ethical conduct and legal conduct, noting that simply because something is seen as unethical it doesn’t necessarily mean that it is also prohibited by the law.
Interconnections between Ethics, Morality, and Law
Ethics, morality, and the law are related, since there are interconnections between them.
For instance, a judge or jury’s assessment of the ethical character of an action may determine how the law is interpreted and applied in a given case.
The law also often reflects society’s consensus about what constitutes appropriate behaviour.
Law can further help define the roles that individuals – or business, managers – play, how they play those roles, and evaluate whether they played them well.
Law may also influence what we as a society deem ethical.
So, over time, there are various, often subtle, relationships between ethics, morality, norms, customs, and the law.
The Canadian Department of Justice has provided this helpful statement about ethics, morality, and law:
“Almost everything we do has a set of rules. There are rules for games, for social clubs, for sports and for the workplace. Rules of morality and custom tell us what we should and should not do. … Rules made by government are called ‘laws.’ Laws are meant to control or change our behavior and, unlike rules of morality, they are enforced by the courts. If you break a law – whether you like that law or not – you may have to pay a fine, pay for the damage you have done, or go to jail.”Department of Justice, Canada
Thus, in other words, the law embodies a set of rules, and what differentiates these rules from other rules that we encounter is that ignoring them can have far more drastic consequences.
It also goes back to the element of enforceability that we mentioned earlier.
Characteristics of Law
Fuller developed a set of eight widely recognized characteristics that rules must possess before they can be called “legal” rules.
They are not 100% applicable to today’s legal systems, but overall they still capture the nature of legal rules.
The first one is generality:
Legal rules must be formulated so that they apply generally and not to specific situations or persons.
The second is stability:
A legal rule has to be – at least somewhat – stable, it cannot change constantly.
The third is prospectivity:
Legal rules should be forward looking, not retroactive.
The fourth is promulgation:
Legal rules cannot be hidden or secret – they must be published.
The fifth is clarity:
Legal rules must be clear and understandable in what they say.
The sixth is non-contradiction:
Legal rules must not contradict each other.
The seventh is congruence:
There mustn’t be any differences between rules as announced and rules as applied.
And the eighth is possibility:
Legal rules may not call for actions that are not feasible for those that are subject to the rules.
Overall, these eight characteristics are a useful guide in describing what law is. They may not always be applicable, and not all factors at the same time may apply, but together they are still one of the best attempts at capturing the characteristics of law.