How Law Works

Laurence Claus

in Law’s Evolution and Human Understanding

Published in print August 2012 | ISBN: 9780199735099
Published online January 2013 | e-ISBN: 9780199950478 | DOI:
How Law Works

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The smaller a group, the less need there is to distinguish law from all else that its members expectantly say to each other. Law is words and only words because our need for law is a need for impersonal communication, for a news source about what group members we do not know will likely do and expect. Law's predictions are multifaceted, addressing the likely actions and expectations of people throughout the group, not only the likely actions and expectations of people whom law calls government officials. Recognizing law's descriptive character reconciles our use of the word about human relations with our use of the word about the rest of the natural world. “Human” law describes the character of its human community. All law works the way international law most obviously does—as a prediction system. What lets us feel that we live under the rule of law is not that lawgiving is separated from other “governing” but that lawgiving is shared among many. Lawgiving and governing are synonymous; we all do law applying, at least to ourselves. The choice to call some geographic communities with some institutional arrangements “nation states” adds nothing to our understanding of law's moral contribution to our individual choices of what to do. The rule of law can live with a nontrivial level of retroactive addition. If law were a way to express moral duties to obey lawgivers, it could not live with retroactivity at all. The pervasiveness with which people in community take an internal point of view toward their law suggests a common denominator, shared reason for sharing the view.

Keywords: impersonal communication; multifaceted; descriptive of community; predictive signaling system; rule of law; power sharing; lawgiving and governing; myth of the state; rtroactive laws; internal point of view

Chapter.  10919 words. 

Subjects: Jurisprudence and Philosophy of Law

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