2 - Some Types of Law  pp. 51-78


By John Gardner

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Laws can be classified in various ways. They can be classified according to the legal systems to which they belong (English, Roman, international, etc.) or according to the subject matter that they regulate (contracts, property, torts, etc.) or according to their normative type (duty-imposing, permission-granting, etc.). In this chapter I will be concerned with the classification of laws – and hence of law as a genre – in only one dimension. It is the classification of laws according to how they are made. This is already a philosophically partisan and some may say question-begging enterprise. Some laws, say some people, are not made at all. They are not artefacts. They have no agent(s) who serve as their originator or creator or author. By demystifying some of the intriguing ways in which laws are made, I hope to remove some of the appeal of this view.

In my first three sections I consider, respectively, legislated law, customary law, and case law. In the fourth section I discuss common law: How does it fit in? In the final section I conclude that all the types of law discussed here are types of positive law. There is, I suggest, no other type of law but positive law.

Legislated Law

In a way (to be explained at the end of this chapter), legislated law is paradigmatic law. So it is not surprising that some writers simply equate law making with legislating.