Society as a Source of Law

Garrett Barden and Tim Murphy

Issue 380, vol.95, Winter 2006

At the beginning of the 20^th century, there was issued the challenge to this self-contained world. Now “socio-legal studies” strove to explain legal phenomena in social terms. The impact of society on law was examined; as also the operation/internal-workings of the legal system itself (and of the enforcement system); and, finally, the impact of law on society.

The socio-legal thinkers admit to receiving some, if limited, support from jurisprudence [philosophy of law]. But it is unfortunate that they are not better acquainted with an older tradition of jurisprudence taking in figures such as Aristotle, Cicero, the Roman jurists, St. Thomas Aquinas (a 20^th-century exponent being Michel Villey [1914 – 1988]). This tradition steers clear of the rationalist approach – which would hold that a set of unassailable principles of justice can be formulated and particular conclusions of justice deduced from them, that a legal outcome can be directly derived from some rule. The Aristotelian-Roman-Thomist jurisprudence is broader : it holds that “justice” (what is due to whom) must basically be discovered through the discursive judicial process – that any ultimate decision will relate not just to the legal rules in the abstract, but to the particular facts of the case.

Such a judicial discovery of law (of the “just”) requires the social element – and the social at its broadest dimension. The Roman jurists recognised that every society was governed partly by laws which were peculiarly their own (the jus civile of a particular society) and partly by laws which were common to all humanity. The latter they termed the law of nations (jus gentium). The jus gentium is not invented as a common law, rather it is discovered to be common. For, no human society can survive if random killing is not censured, or if whatever is in any way owned may be taken against the owner’s will, or if agreements are not in principle binding.

Similar to the jus gentium is the notion of the “living law” – reference to how people in all communities have been brought up to carry out a whole range of behaviours in a way that has nothing to do with positive law – customs, established procedures, habits, patterns of mutual expectation. The “living law” did not come into existence by any process of rational consideration or debate; yet it is the background context against which debate on positive law takes place.

From within the “socio-legal” school, one point of contact with the Aristotelian-Roman-Thomist jurisprudence might be the ‘external legal pluralism’ approach : this does raise the question of whether law’s authority might depend on how far it corresponds to the felt needs for the regulation of social relations – of whether simple positivist tests adequately explain legal validity.

Garrett Barden is Emeritus Professor of Philosophy at University College, Cork;

Tim Murphy lectures in Law at Akureyri University, Iceland, on leave from University College Cork.