A few years ago I published a book, The Nature of Law, which was activated primarily by three long held beliefs. First, law is a means, not an end in itself; and legal rules, principles, decisions do not come into being without some purpose. The end envisaged for a legal rule or decision may be immediate -- to give financial compensation to a particular victim of negligence, for instance -- or more remote -- to promote general happiness or bolster the economic dominance of the ruling class, for example -- but that does not concern us here. What, in my opinion, does matter is that a general theory of the law that excludes consideration of what a law does ignores the heart of the law. Secondly, law is a human construct, a concept, and as such can best be analysed cross-culturally. Just as an analysis of the concept of religion would be unduly limited, unbalanced and probably misleading if it were restricted to an examination of 'orthodox' Christianity and did not consider primitive Christianity, Hinduism or Buddhism, so it is over-narrowed and distorting to restrict one's enquiry on the nature of law to the modern Western legal tradition. Thirdly, a complete theory of law may be descriptive and be restricted to what law is, not also what law ought to be; or alternatively, a theory of law must keep rigorously apart what law is from what law ought to be. Since law is a means, one might claim that a complete theory of law may be restricted to what law does, not also what law ought to do; and the theory must then keep rigorously apart what law does from what law ought to do. It is dangerous in the extreme, I believe, to attribute to law, as it is, the characteristics of law as it ought to be and give law, as it is, the appropriate respect and obedience. Habent suafata libelli: alas, readers seem not to have noticed my aim of demystifying the law.
The present paper builds on my book and may be regarded as an appendix or as an additional chapter. Its theme is that in actual fact the nature of law is highlighted when it is used by tyrants. Since I rely on my conclusions in the book for what is necessary for, or typical (for Westerners) of, law I have to refer constantly to the book, but the paper should be comprehensible by itself and is basically independent. Indeed, there is a positive advantage in keeping the book and the paper distinct. The conclusions in the book on the necessary and typical features of law were reached without dependence on the appearance of law in a tyranny. And the book is not used here to justify arguments about law in a tyranny.
Law in a Reign of Terror
Available at: http://digitalcommons.law.uga.edu/fac_artchop/495