On the Question, “What is Law?”

Abstract

Re-framing discussion of the question, “What is law?“ in terms of the contexts in which the whole question makes sense allows us to see that jurisprudence is about boundary disputes concerning law – that is about what should count as law – and about responses to attacks on the value of law. Concern for these two issues constitutes the boundary challenge perspective. The boundary challenge perspective not only allows us fully to escape essentialism about law, it also provides us with a better understanding of the relationship between the activity of discussing what should count as law and the activity of specifying the law in particular circumstances. The boundary challenge perspective provides a better explanation of that relationship than positivism or natural law. It allows discussion of change and resistance to change without significantly weakening the distinction between “is” and “ought”. It might also form the basis for further historical and sociological studies of law.