Law in Context

Send us a text message with feedback

Any competent lawyer should be able to say what is the law on a given topic in their area of expertise. However, most lawyers find it surprisingly difficult to answer persuasively the general question "what is law?".

In this episode we grapple with some debates that go back centuries. We look at the positivist approach: that law is simply whatever is laid down constitutionally (ie "posited"). You might think this is self-evident. It's also convenient, because "law" is kept neatly separate from "morality" and "politics".

However, there has been a strong body of thought around ideas of "natural law" and "natural rights" which maintains that a "law" which violates nature is not actually law. Today, some human rights theorists take this view too.

And there are scholars in a different, critical tradition who argue that law cannot supply all its own answers. Legal language may be vague or ambiguous, so a meaning has to come from somewhere else. And law consists of principles as well as rules. Applying a principle is a way of letting your own views into law.

It will not surprise any listeners that the Two Steves can't solve problems that have eluded the awesome bulging brains of legal philosophers. But they can at least shed some light on it all. This, on its own, adds to our understanding of law. And, given that law permeates almost every aspect of society, it also adds to our understanding of the society we live in.

For more information about your hosts and the Law in Context podcast series visit our website at https://lawincontext.com.au