Law

Law is a hallmark of civilization and is a standard for social development and progress. At the same, times there are a number of perspectives that have been developed about it over the years, some of the conflicting and thus serve as a topic for debate. Much of the debate and interest in the conceptualization of the law stems from its impact to justice systems. According to both Dworking (1986) and Hart (1961) present to distinct schools of thought regarding what is the law and its function in delivery of justice programs. This paper will evaluate the perspective presented by Dworking and Hart, comparing and contrasting them and ultimately determining the value of their arguments and their implication to contemporary views regarding the law as well its application and practice.

Hart (1961) points out the question what is law is one of the oldest object of serious thought evidenced by the literature that has been written since classical times about the essential nature of law. However, he also points out that much of the debate that has developed from perceived paradoxical conflicts in theories because much of them were developed for professional utility and were significantly limited by the contexts that they were developed.  Hart points out that though this was common knowledge, the question of what is law persists because except for clear standard cases based on accepted legal systems, the law is subject to interpretation. He gives the case of primitive law and international law as examples though they represent very different sets of law, because of culture and social variances for the former and the latter due to its lack of legislative foundation.

Utilizing formalism and rule-skepticism, he points out that the law is a tool to establish social control and order in large groups. Typified by legislation and precedence respectively and seemingly contrasting, they both communicate how general standards of conduct are established and applied as law. Harts consensus is that regardless of either device, the law is essentially indeterminate and therefore, the answer to the question of what is will have the same quality. This is not to mean that they law cannot be defined but rather that it also has an open texture.

Dworkings (1986) approach to the question of what is law is to consider its value. He says that because law is the foundation of judicial decision and action, laws are critical in determining social order and regulation. According to him, the conflict arises because of how laws are utilized to determine what are the facts for arbitration what laws are to be applied and that if compensation or punishment is denied, should that be considered as a failure of justice. Dworking suggests that the common perception is that laws can only be either true or false or neither, however the grounds they are built upon is arbitrary and therefore, regardless of whether laws are interpreted in an absolute manner, they have a subjective dimension. This makes theoretical disagreements problematic with the added complication of the clarity what kind of disagreement is in issue. In his discussion of the plain-fact view, the implication is that though lawyers and judges may theoretical debate the law, there is no argument of what it should be, a social device for control and order. This also supports the role of law as a window to the nature and rationale for prevailing social structures.

Hart (1961) says that there is a presumption that the nature of law is founded on common knowledge such as that laws are forbid or enjoin some behaviors under penalty that they establish the rules to rectify or pay damages or compensation that they establish the rules and procedures to create and execute wills, contracts, estates, and other arrangements that give rise to rights and obligations that they are the basis by which courts determine the rules, when they are violated and what the consequences are and that laws are legislations to update previous statutes. The discussion revolves around three recurrent issues How does law differ from and how is it related to orders backed by threats How does legal obligation differ from, and how is it related to moral obligation What rules and to what extent is law and affair of rules. This suggests that disparities in the definition of the law are considered in counterpoint of other social concepts. On the other hand, Dworking (1986) suggest that the consideration of what the law is exists on a theoretical dimension and thus, the law itself can be viewed plainly. Dworkings perspective is prevalent among legal theorists and this should not be surprising since arbitration on the theoretical dimensions of the law is central to their profession. However, this should not imply that Harts perspective is less valid in theory or practice. The difference between the two perspectives can be associated with how they consider the subject Hart considers it in a more philosophical level and Dworking considers it in a more practical level. Thus, though it is not likely the either perspective can be considered fully definitive, they should be both considered in equal measure to be able to develop comprehensive and holistic insights to the question of what the law is.