Introduction to Legal Theory

CHAPTER I

GENERAL INTRODUCTION

Jurisprudence and Legal Theory

It is easier to say what jurisprudence is not, than to say what it is.  The definition of any area of study is useful only insofar as it illuminates and does not constrict. It is always tempting to ask for definition of areas of law or legal study. Attempts to meet the demand may, however, be at best misguided and at worst positively misleading.

Among the many dangers inherent in the search for definitions, two are particularly relevant to the present study. First, definition may precede adequate knowledge of the subject-matter sought to be defined, and misconception may be formed at the outset. Second, and just as serious, the definition presented may in turn lead to the imposition on the matter defined of artificial limits not corresponding to practical necessity and reality.

This book does not cover the whole field of jurisprudence. Its concern is with legal theory, with the principal method which have been used to describe and analyse the essential constituent elements in the phenomenon “law”. Nevertheless, the study of legal theory is but one aspect, albeit a major one, of jurisprudence; the introductory remarks in this chapter may therefore be of assistance in other jurisprudential studies which are not within our preset compass. A hard-and-fast distinction between jurisprudence in general and legal theory in particular is not truly tenable. Based merely on the verbal connotations of these two terms, it will fail to illuminate their nature. Nor will it be to attempt to differentiate legal theory from general jurisprudence on account of their respective contents. While jurisprudence study may be made of individual legal concept such as possession, negligence and corporation, the concern of legal theory is also centred on a legal concept, that is, law itself. Be the analysis of the nature of law as a whole or of particular legal concepts within it, too many features are common to both types of analysis to justify any distinction sought to be drawn between them.

Broadly speaking, legal theory involves a study of the characteristic features essential to law and common to legal systems. Its object is the analysis of the basic elements of law which make it law and distinguish it from other forms of rules and standards, from system of order which cannot be described as legal systems, and from other social phenomena. It has not proved possible to reach a final and dogmatic answer to the questions “What is law?” or to provide exclusive to the many questions which have been posed about its essential nature. The claim of a course in legal theory is not that is produces conclusively definitive answers. Its value lies, rather, in a study of the light which juristic work has shed on the distinctive attributes of law. An examination of the relative merits and demerits of some principal expositions of the subject, focusing attention on their points of strength and weakness, is a convenient method of assessing the varying results. Such conclusions as are expounded in the following chapters arise not from any attempts at exclusive definition; they spring, rather, from the juxtaposition and comparison of variety of legal analyses, differing in nature but often equal in merit.

Some Problems of Definition

The definition of the area of study entailed by legal theory is but a minor issue when set among the multitude of problems of definition which have confronted jurists in the development of their analyses of law. The variety of contexts in which the term “law” may suitably be employed is too great to allow of one definition of that concept to the exclusion of all others. An exclusive definitive nation of the nature of law may be too restricted to be of use outside the terms of reference of the jurist who adopts it; or else to general a definition may, in an attempt to satisfy everyone, satisfy none.

The conceptual nature of law prevents its susceptibility to forms of definition commonly used in relation to physical objects. When a thing is being defined, the general category to which it belong may be first outlined, and the particular species to which it belongs within the general category may then be marked off. This form is known as definition per genus et differentiam. An elephant, for instance, may be defined by first allocating it to general category of mammals, and then further specified by a description of particular characteristic, a trunk, large feet, a tail and so on.

If this form of definition were suitable in the case of law, debates about the essential nature and characteristics of the concepts would not have been pursued since time immemorial. Most account of the nature of law and legal phenomena consist, not of definition, but rather of characteristic descriptions. Such is the nature of law that it is impossible first to outline a general category to which it belongs, and then so specify the distinguishing features of law which mark it off and indicate its particular province within this general category. Difficulties of precise definition are further compounded when it is realized that disputants in this field are frequently moved by any number of social or ideological reason when advancing their suggestion as to the nature of law, and are not concerned only to achieve a logical analysis to the exclusion of relevant human and social values. The term “law” is so wide and can be employed in so many different contexts that jurist will frequently, in reality, be talking about different things. Their opinions may vary according to the objects they have in mind, their background, their education and the social, political and economic climate in which they work.

That it is not always the same thing which is sought to be defined in differing analyses of the nature of law may be far from obvious. The student of legal theory will find it difficult  to assimilate approaches which appear as different as chalk and cheese. If one essential distinction is borne in mind, however, much confusion may be avoided. In any comparative study of legal theory, a distinction must be maintained between the character of law and the content of law, or rather of laws. Separate consideration must be given to “law” in a conceptual sense and to “laws” in the sense of individual legal rules. Some analyses of the nature of law are disorientated by want of this distinction. Some criticisms of these analyses have themselves fallen into this very trap. When the same word may be used to refer to aspects of the essential character of law and also to the specific content of a law or legal rule, problems of definition abound.

Classification in Legal Theory

Not unassociated with the desire to define or delimit the ambit of legal theory and the concept of law itself is the habit of believing that the views of a particular jurist are adequately presented by the devices of labeling him under some general description of a class of jurist-classified by some trait or sympathy prominent in their works. Schools of thought and general movement in thought there certainly are; but Mars is hardly described by merely stating that it is a planet in the solar system. Nor is the solar system described by a list, however long, of its major members. Here name-dropping serves no worthwhile purpose. Without a discussion of their context and the reason which underlie them, a mere list of cases decided by the courts on a particular topic throws no light on the topic itself. Similarly in legal theory, a mere catalogue of the names of jurists who have contributed to the discussion of some particular problem adds little, if anything, to a worthwhile exposition and explanation of the problem itself.

It is true, for the sake of convenience and easy reference, the major surveys of legal theory adopt general classifications of juristic work. Headings which are frequently encountered include natural law theories, analytical positivism, modern realism, sociological approaches, historical approaches, and so on. Students are warned, however, to avoid the pitfall of believing that their task is done by memorising in tabulated or similar form a list of juristic works alongside the titles of general classifications. That should come, if at all, at the end of their studies and not at the beginning for the purpose of fitting in pieces of the jigsaw-puzzle once we have gone some way toward gaining an overall picture of the subject-matter to be examined, such elaborations may be useful to the extent that they are illustrative, but to that extent only. It may well be found that many, if not most, jurist may ultimately be included within a particular category or movement in thought; but to assume that the work of a jurist should display certain features which typify his “classification” would be to do him a disservice. That would be to put the cart before the horse. It is of foremost importance to examine what a jurist has actually written and of minimal significance to know the classifying term which commentators have subsequently attached to his views.

Variations in Approach
It is remarkable fact or legal theory that so many different ideas, so many different form of expression, have been used to describe what might appear to be one and the same thing. When we commonly refer to law, a readily understandable meaning is usually attached to what is said in typical contexts such as “What is the law on this matter?” or “I am studying law.” Why, then, all the discussion about what law is?

The diversity of opinion comes from persons intimately connected with the law amongst whom a degree of consistency might be expected. One explanation of the absence of such consistency lies in the fact that the analysis of law differs from the types of analysis employed in the natural sciences. A principal reason for this difference is to be found in the relationship between method of investigation and character of the subject-matter to be investigated. The distinction between prescription and description must be mentioned here, thought this distinction will not be examined in detail until the following chapter. The formation of laws is a purposive and prescriptive task. A prohibitory or empowering law is passed by a legislature for a certain reason and with a certain purpose behind it. Furthermore, this regulation of the conduct of people is itself operated by people. The accounts which are given of this enterprise and of the creature, law, which thereby comes into being, are the result of description. Put shortly, the legislator prescribes and jurist or commentator describes the effect of what the legislature has done, in the course of his wider description of legal phenomena as a whole. The legislator (used here to refer to all organs of a legal system with lawmaking power) is no doubt concerned with past, present and future circumstances which condition the purpose behind his actions. His primary concern is, however, the prescriptive task of saying what shall or ought to happen, the description of circumstances in the background of his laws being of secondary importance only. The legislator may, indeed, be quite unconcerned with anything but the law making of a new law, though in practice this will be unlikely.

The methods of investigation adopted by the jurist engaged in the task of describing legal phenomena are necessarily conditioned by the nature of subject-matter to be examined. With reference to this feature of the analysis of data the task of the jurist or legal theorist differs fundamentally from his opposite number, the expositor or commentator in the field of natural science. Chemistry, for instance, stands for the methods of investigation employed by chemists, and for the principles of matter which are elucidated by these methods. The objects under scrutiny are physical, in one from another of physical existence as specific entities. Law, on the other hand, is not synonymous with legal science. Nor is law a thing or a physical fact which lends itself to the analytical treatment used in the natural sciences. Its essentially prescriptive character precludes such an approach.

Opinions vary as to the nature of law, the reasons for its existence as a social phenomenon, the characteristic which differentiate it from other forms of regulation and from other institutions of society, as to the place of morality in the law, as to the part which physical force does or ought to play, as to the distinguishing characteristics of those who are or who ought to be legally authoritative, and so on. As mentioned, the term “law” may refer both to the nature of a social phenomenon and also to the actual provisions of a legal system whether generally or individually. This variability in meaning, together with the widely varying backgrounds and purpose of all the writers to have tackled problems associated with the nature of law, has had a considerable influence on the great variety of methods which have been adopted in the analysis of the nature of law. Moreover the connection with each writer has with the operation of a particular legal system, with the creation of laws or with their administration as a practitioner or legal official, or with the teaching of law, or with the study of its nature or of philosophies concerned with law, may exercise some considerable bearing on the type of account which is given. No jurist can conceal his education, his social philosophy, or his ideology forever; nor do many seek to do so.

The ideologies or value-system underlying some of the theories to be treated in this book will be obvious. The clearest example is Marxist doctrine which has given rise to a concept of law, or of its purpose, directly based on a political philosophy. No less obvious are the values at the base of some major trends in natural law philosophies. The more implicit motive forces behind theories of law were summed up in the memorable phrase of the great American jurist Oliver Wendell Holmes as “inarticulate major premises.” The function of law as a means of social regulation inevitably entails a conditioning of legal theory by the values inherent in the structure of any particular society.

Hart has commented on the remarkable number of formulations which have at one time or another been attached to the nature of law.[1] Understood in their context, he says, such formulations can be both illuminating and puzzling. The light thrown by each on the object of study may dazzle us so much that other features are simultaneously obscured. Jørgensen[2] takes this observation a stage further when, after having said that “the variants have been innumerable in consequence of the fact that the various authors or schools have emphasized one each of the many perspectives which may be applied to legal phenomena,” he continues: “To the legal scientist it may seem natural to consider law as a system or norms, whereas to the politician it may seem reasonable to take law as a means of governing and to look on the rules of law as sanctioned orders or imperatives. No doubt it will seem strange to many at first glance that law has not only none of the firm and closed contents which most people imagine, but has even no constant form. It is, however, the general attitude of probably all sciences today that our perception is sporadic and determined by individual interest, that it is impossible, therefore, to give an exhaustive description of any complex of phenomena observed, but that the description will depend on the interest it is to serve and on the approach accordingly chosen.”

Another Scandinavian writer, Professor Karl Olivecrona, sheds further light on the problem of defining something which is certainly not tangible or visible, as is the case with law, and the nature of which is a first relatively unknown.[3] “A difficulty immediately appears when we propose to elucidate the nature of the law. That is how to avoid circularity. Object of inquiry is said to be ‘the law’ of a modern community. But does not this imply some knowledge of what the law is? How else could any object of inquiry be designated by this expression? But then the inquiry seems to presuppose previous knowledge of its object. We are apparently caught in a dilemma. One seems to be unable to define the object of investigation without cleary already being familiar with it. Not surprisingly, therefore, works on the nature of law often begin with a definition of the concept of law. If a definition of law is not proffered, a concept of law is usually presupposed as a necessary starting point.” Where, then, can a starting point be found at which to commence our investigations into the nature of law? Olivecrona continues: “It should be possible here, as well as in other branches of science, to define the object of inquiry without anticipating the result. This means framing the questions without making any assumption concerning the answer …. The commons language and the content of the common mind may serve as a starting point for our investigation. We have some immediate knowledge of things just as people had some immediate knowledge of the celestial phenomena from which the study of lightning once began. We therefore have the necessary factual basis from which the inquiry may proceed.”

“The course of the inquiry may be set different directions. One possibility is to study the common mind itself by analysing its notions and tracing their history. This could lead to a more extended knowledge of our ideas concerning ‘the law’ and the language used to express them. The object of the inquiry could be described as legal ideology. Another possible course is to go beyond the common mind and ask what empirical realities we find where the legal notions are applied. This inquiry is not concerned with ideology but with objective fact …. A third course of inquiry would be to begin with the theories about the nature of ‘the law’ and try to ascertain the content of their truth …. Of the three courses of inquiry the last one offers certain advantages. It is better to start with the more precise ideas of acute and learned jurist and philosophers than with the more vague notions of the common mind. The point of departure will then be the present position of legal theory.”

Though for the moment enlightening. When the variety of approaches to the analysis of the nature of law is being considered, the views of Olivecrona will be examined in Chapter Six to see whether he, too, is not making some unwarranted assumptions.

The problem of the nature of law is rendered even more remarkable when we are reminded that is has provided a source of learned discussion among distinguished lawyers and philosophers for such a very long time-certainly from the early Greeks onwards to the present day. One writer has offered a solution to at least a considerable part of the problem of differences in juristic attitudes.[4] He suggest that variations in approach and some of the major disagreements amongst jurist are attributable to a failure to appreciate the relationship between what can be called “law-concepts,” “law ideas” and “law-theories.” The basic concept of a writer's jurisprudence or what, for that writer, is law, may be called his law concept. Any further explanatory description concerning the nature of that concept of law which cannot be deduced or inferred from the law-concept itself is called that writer's law-theory. A law-idea serves to describe the manner in which a law-concept functions as a practical guide to action: to entertain the law-idea is to accept the guidance to action which it entails. On the basis of these distinctions which may be applied in studying the work of a jurist who is investigating the phenomenon “law,” the following promotion is advanced: “It is tentatively suggested that the tendency in jurisprudence is to presuppose one's own law-concept and to assume that every other writer's law-concept expresses a law-theory intended to be applicable to one's own law. Other writers' supposed law-theories are then, on this assumption, readily shown to be defective if not simply false,''

While not set formula will be used in the followed chapters in the comparison of differing approaches to the analysis of law, It will be valuable to remember that the concept of law explicitly or implicitly adopted by any particular jurist is bound to have a substantial influence on his subsequent exposition. Though the use of an approach of the type just indicated might result in and study if applied separately to each analysis of law in turn, its employment in the overall comparison of differing juristic attitudes may be fruitful. This particular method of comparative analysis may be beneficial once the reader has become familiar with a considerable number of the salient points contained in the analyses of law which will be discussed in the following chapters.

Differences of opinion in legal theory are not always explicable in terms of set analytical formulae. It is conceivable that a jurist or commentator on legal theory might refuse outright to accept the concepts or explanations of another as being of any value and base his criticism solely on this ground. One analysts of law might claim superiority over another simply on the basis of a misunderstanding of the other's nature and purpose. A theory of law might contain inconsistencies within itself. A jurist might even set out by posing certain questions and finish with something, albeit in the form of conclusions, not in fact directly related to the questions asked.

No formal approach to the assessment and comparison of contributions to juristic knowledge will be adopted in this book. It would be misguided to formalise the solution of problems and conflicts which the reader will ultimately wish to solve for himself. As far as is practicable in an introductory text such as this, attention will be paid to both similarities and differences between a number of analyses of the nature of law. If these are considered   each to the exclusion of the other they: is a danger of missing some notable features of the matter under examination.

A comparative approach to any of legal study which both compares and contrasts principles and concepts can lead to a better overall understanding. The exposition of one theory of the nature of law which is set out against that of another can give meaning and life to both. The following chapters compare and contrast the approaches of a number of jurist whose contributions may usefully be considered in relation to one another. A general outline will be given of each legal theory and particular attention will be paid to the various ways in which they are related. Though there are some exceptions, the juristic views to be discussed generally fall into place as a matter of chronological order. The early natural law doctrines probably represent the oldest source of legal theory, and the legal consequences of Marxist doctrine represent one of the most significant major developments in recent legal thinking. On the basis of the developments to be studied, the reader will, it is hoped, be in a position to form a balanced assessment of each of the legal theories to be considered. He may ultimately be enabled to judge whether legal analysis, its concepts and its methods of analysis, have improved, and if so in what ways. It is intended that at the end of this process of juxtaposition of legal theories, the reader will be able to place himself at any stage in the development which will have been tracers and to see what lies behind him and before him in perspective. Once the relationship between one legal theory and another has been appreciated, the reader will be better able to level his own criticism at each one.

The Uses of Analogy

The study of differing analyses of the nature of law is bound to involve the discussion and comparison of doctrines and concepts which may be far removed from the experience of everyday life, removed even from the everyday experience of the law's operation. The device of analogy is frequently employed by juristic, teachers and students alike in order to expedite the communication of ideas. Analogies may be used in our present field in order to liken an idea or concept which is initially difficult to appreciate, to some other more familiar idea or set of facts. By thus relating one thing or idea to another, or more usually a set of ideas to a set of things or series of events, the initially difficult idea appears to become assimilable to something which seems either obvious or at least more readily understandable. The misuse of analogies is, however, a danger to any discussion. Analogies can be used to great advantage in the clarification of difficult concepts and distinctions. Great comfort may be derived from the discovery of a link between the abstruse abstract and the familiar concrete. But care must be taken. Whatever may be the attraction and apparent usefulness of analogies, they are capable of becoming misconceived in relation to the point to be explained. Even when an analogy is not initially misleading there remains the danger of arguing-perhaps perfectly logically-from one facet of the explanatory device to another in such a way as to distort argument. The point which was originally in need of explanation may be lost sight of. We should beware of extending analogies beyond their often restricted usefulness and, conversely, guard against disbelief in an idea which is being explained by way of analogy merely for the reason that the particular analogy chosen is not apposite to its purpose.

Varieties of Criticism

It has been asserted by some who have studied aspects of various theories as to the nature of law that one man's opinion on a particular matter is as good as another's. This may be true, especially in the evaluation of some very different approaches to juristic analysis. But it is true only when the assertion is made subject to two important qualifications: first, the opinions in question should be fully considered and sufficiently reasoned; and second, it is essential that the one should have understood the import of the other's views and is in fact dealing with the same problem. One method of stating the possible causes of confusion has already been mentioned. To assert that criticisms of other's views should be reasoned and considered may state the obvious, but such reservations are ignored only at the cost of confusion.

Those familiar with literary criticism will appreciate the way in which differing standards may be applied when one man treats the writings of another. Two principal methods may be found by which to criticise any piece of writing, whether the critic is addressing his assessment to form, or to content, or to a mixture of the two. The first is two consider whether the project merited treatment at all, or in the particular context in which it appeared. The second is to consider whether it achieved the object intended by its author. When contributions to any field of knowledge, art or literature are criticised out of hand without regard to the object which the author set out to achieve, the second form of criticism is ignored at some cost. When applied to our present field, this latter form of criticism examines whether a jurist has achieved what he set out to do, in his own terms and on his own ground. The former method, on the other hand, inquires whether the object undertaken was justified and worthy of treatment, in terms of the standards and opinions which the critic held even before encountering the work which he is now assessing.

This difference in approach indicates the distinction between subjective and objective analysis. Criticism which is based on an analysis of the degree of success achieved “on his own ground” by an author tends to be much more objective than the other method, which may amount rather to a statement of personal views and inclinations, rather to a dogmatic assertion of a writer's own views, than to a considered assessment of the merit of those of another The opportunities for objective assessment are clearly greater in the case of legal analyses which have much common ground but which differ in the presence or absence of some further substantial feature, or in the emphasis which each gives to common constituent elements. In the case of legal theories separated by wide differences in ideology, the task of both commentator and student is rendered more complex if the “inarticulate major premises” mentioned above remain inarticulated.

            

The Terminology of Legal Theory

The language of the law is necessarily precise and contains a substantial terminology which is not part of everyday parlance. The language of legal theory also possesses its own special vocabulary on account of the nature of the phenomena under investigation. No great problem arises for the student in this respect, for lie will soon become accustomed to “normative” terminology necessitated by the normative character of law. The concepts of rule, norm, regulation, power, sanction and prescription are commonly encountered in legal theory. The terms applied to method of juristic investigation, such as “realism” or “analytical positivism” are frequently self-explanatory and will soon become familiar as far as is necessary. Such classification are, as mentioned, of secondary importance to what each jurist has actually written.

Concepts at first difficult to understand because of the mode in which they are expressed can, by elucidation and exposition, often be reduced to very simple language. But that is not to say that any science or field of knowledge can avoid its own “shorthand” terms. One of the obvious benefits of shorthand terms is the avoidance of lengthy circumlocution. The task of oven the newcomer to legal theory will be eased, provided of course that modes of expression adopted to describe legal phenomena are not too cryptic. Once the basic expressions of legal theory are wastered as they must be, its terminology whether it be applied to theories about the nature of law in general or to the analysis of particular legal concepts within it, such as negligence, ownership or corporation, is no more complicated than that of any other branch of legal study.

However, that is not to say that expositions of jurisprudence or legal theory are universally reducible to lay simplicity. The most complex theory of law might be expounded in apparent simplicity, when in fact over-simplification could result in distortion and misunderstanding.   The ability to reason well enough, and with sufficient patience, to grasp, the essence of the theory itself must be added to the mastering of individual terms. Some parts of the law are more readily understood than others because they relate to more common experiences of mankind. Legal theory may seem more difficult to comprehend for the very reason that it often relates to matters which are not part of the common currency of everyday life-either of the layman or the lawyer, or the law student.

Argument in Legal Theory

The closing remarks of this chapter have a bearing also on the observations, made above, upon definitions in legal theory and upon the terminology involved in its study. Discussion necessitates a starting point. But initial terms of reference must not be treated as definitions. Conclusions on the nature of issues to which they relate should not automatically be deduced   from them. They are neither intended nor, of necessity, well adapted for such a purpose. Nevertheless, since a starting point for discussion is a clear necessity if any exchange of arguments is to gain momentum, the common exhortation to “define one's terms” should be treated with some suspicion. One term must be explained by reference to another, or others, and those will in turn stand in need of “definition.” The constant definition of terms would produce an infinite regress. It may be found in the course of a discussion that new terms might suitably be substituted for old. That is not to say, however, that absolute definition in the use of concepts and their attendant terminology must be achieved at the outset of any debate. This may not even be possible, for there will always be those whose attitudes subsequently diverge.

Words are convenient and indeed necessary for the expression of thought, and no concept can be communicated without them. But they are not to be treated as substitutes for thought; they are the servants and not the masters. To take simple example, if an action in tort for negligence is dismissed because “there was no duty of care on the part of the defendant,” that merely states a result. It presents none of the essential reasons which led up to that result; there is no magic in the terms themselves.

The allegation is occasionally encountered that the discussion of such and such an issue is “merely verbal,” and verbal arguments are sometimes associated with accusations of hairsplitting. In any field in which somewhat complex concepts are examined, a certain accuracy of linguistic usage is required if a satisfactory account is to be given of the subject-matter. However, considerations which have to do with words and linguistic usage are by no means necessarily purely verbal or founded on the quicksand basis of the words in isolation. Language is our means of expression, but the roots of our arguments and analyses lie not in the words themselves but in the notions which await verbal expression.

Despite its title, legal theory relates ultimately to problems of physical existence, though most jurists insist that a study of physical or causal relations is insufficient without the addition of a normative analysis of such relations to account for their specifically legal quality. Legal theory is not concerned with “mere theorising.” It might, however, fall into this trap and become an empty form if theory were erected on the inadequate foundation of preconceived and exclusive definition which pre-empts further fruitful discussion. The opinion has been advanced that the question whether or not international law is really law is a merely verbal question and that those who take differing views on its nature are participating in verbal dispute. The question whether that form of law is really law seems to some to have survived only because a trivial question about the meaning of words has been mistaken for a serious questions about the nature of things.[5]  

A study of the character of international law could indeed be unrewarding if an a priori definition of the concept of law had already been constructed which would necessarily exclude that area of regulation. Such a possibility apart, it is very difficult to agree with the proposition that discussion of its nature is merely verbal. Whatever terminology is used, the problem of the nature of international law as compared with that of national or municipal law still remains and deserves explanation. Practical as well as theoretical questions can ensue, just as they can in relation to the question whether a thoroughly iniquitous rule merits the appellation “law.” The issue in the latter example is anything but verbal, for acute problems of obedience and punishment may arise for solution. Furthermore, language may be capable of convoying the meaning of the subject-matter to which it refers only if it is examined in the light of such factors as the ideology or social environment of the writer whose views are under discussion. What may appear to be mere niceties of linguistic usage can conceivably affect the meaning to be conveyed.

Since a straightforward and conclusive method of definition is not available in our present field, attention must be directed towards greater accuracy of expression in order to produce a more accurate exposition of the concepts and ideas themselves. The consequent care which must be taken with linguistic usage is anything but merely verbal. Words are indispensable tools for fixing and communicating legal ideas, and even an attack on words must, in the end, be couched in words.

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[1] Hart, The Concept of Law, Clarendon Press, Oxford, 1961, pp.1-6.

[2] Jørgensen, Law and Society, Akademisk Boghandel, Aarhus, Denmark, 1973. Pp. 4-5.

[3] Law as Fact, Stevens and Sons, London, 2^nd ed., 1971, pp. 1-6.

[4] King. “The Concept, the Idea and the Morality of Law” (1966) 24 C.L.J. 106.

[5] Hart, The Concept of Law, O.U.P. 1961, p. 209.