Chapter 1 - Finding Law

Summary

As indicated in the introduction to part one of the thesis, this first chapter focuses on defining law. In this chapter, I will reflect on what makes a law a law and how a law is different from a social norm. This definition will be the first building block of the theoretical framework at the core of this thesis. It is important to keep in mind that the chapter does not attempt to solve the philosophical question regarding the essence of law, nor does it attempt to enter the debates in legal philosophy about the exact, correct interpretation of the works of the different legal philosophers discussed. Instead, the chapter and its discussion of the question “what is law?” has to be read as instrumental to the overall purpose of the thesis, which is to find a new way to better understand children's rights violations. With this purpose in mind, the chapter aims to give a comprehensive definition of law and legal orders that can be used for the purpose of the study of children's rights. Lastly, it has to be remarked that the chapter may seem somewhat to focus on the state legal order to find definitions of law and the legal order. This impression is given mostly because most legal philosophers discussed focus on the state legal order in their discussions of law. However, throughout the chapter, a legal pluralist approach has been kept in mind so that the elements of law and the legal order presented in this chapter are considered to apply to state and non-state legal orders equally (see also §1.4 and chapter 3).

LAW AS A SOCIAL FACT

The question “what is law?” is a conceptual question that needs to be answered in order to create a strong foundation for any legal research. The question does not refer to a reality “out there”; it does not relate to facts that exist in an objective reality regardless of human conventions (so-called brute facts). We do not ask “what is law?” as we ask “is there a tree outside?”, or “why do things fall down and not up?” The answer to the question ‘what is law?” is necessarily dependent on an understanding of social convention, because laws are social facts.