Varieties of law as a mutually challenging array

Law and Order vs. Lore and Orders? (Part #3)

As with "order", it is readily assumed that "the law" is well defined and that the "rule of law", manifest to a degree at the national level, is an uncontroversial possibility towards which global initiatives are fruitfully undertaken. It is therefore useful to review a range of understandings of "law" as a guide to any implications in practice. [Readers could skip to the following section]

Varieties of law: The Wikipedia introduction to a list of national legal systems of the world notes that they are generally based on one of three basic systems: civil law, common law, and religious law - or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations. Irrespective of the varieties of law, a major consideration is the vexatious implication of the conflict of laws -- necessitating a set of procedural rules that determines which legal system and which jurisdiction should apply to a given dispute.

For H. L. A. Hart (The Concept of Law, 1961):

A fully detailed taxonomy of the varieties of law comprised in a modern legal system, free from the prejudice that all must be reducible to a single simple type, still remains to be accomplished. In distinguishing certain laws under the very rough head of laws that confer powers from those that impose duties and are analogous to orders backed by threats, we have made only a beginning. (p.32)

In Concept of Law (chapter 5), Hart notes that weaknesses in the law of a modern state were either distorted or altogether unrepresented in over-simple theory:

First, it became clear that though of all the varieties of law, a criminal statute, forbidding or enjoining certain actions under penalty, most resembles orders backed by threats given by one person to others, such a statute none the less differs from such orders in the important respect that it commonly applies to those who enact it and not merely to others.
Secondly, there are other varieties of law, notably those conferring legal powers to adjudicate or legislate (public powers) or to create or vary legal relations (private powers) which cannot, without absurdity, be construed as orders backed by threats.
Thirdly, there are legal rules which differ from orders in their mode of origin, because they are not brought into being by anything analogous to explicit prescription.
Finally, the analysis of law in terms of the sovereign, habitually obeyed and necessarily exempt from all legal limitation, failed to account for the continuity of legislative authority characteristic of a modern legal system, and the sovereign person or persons could not be identified with either the electorate or the legislature of a modern state.

Voluntary vs. Coercive: The varieties of law are otherwise variously distinguished. For example, Roderick T. Long (The Nature of Law, 1994) makes the distinction between voluntary and coercive law, depending on the means whereby compliance is secured:

Voluntary law, as the name implies, relies solely on voluntary means, such as social pressure, boycotts, and the like, in order to secure compliance with the results of adjudication. Coercive law, on the other hand, relies at least in part on force and threats of force.
Coercive law in turn may be further subdivided into:
- monocentric coercive law, there is a single institution that claims, and in large part achieves, a coercive monopoly on the use of force to adjudicate claims and secure compliance in a given territorial area. This institution is called a government, and everyone other than the government and its agents is forbidden to adjudicate by force.
- polycentric law, by contrast, no one agency claims or possesses such a monopoly. When law is coercive, it need not be monocentric. For example, under early Anglo-Saxon law, Kings made foreign policy only; domestic policy was left to local courts called Moots, which simply enforced agreed-upon local customs. Neither Kings nor Moots had any power of domestic enforcement; it was up to individuals to enforce the law by private coercion. Such individuals generally formed associations called borhs, pledging security for one another's reliability; even here, much enforcement was through social sanction (being denied membership in a borh) rather than coercion.

For Long, an anarchist, then, is not someone who rejects order or law or even coercive law, but rather one who rejects government. The anarchist argues that informal order, voluntary law, and polycentric coercive law are sufficient to maintain social cooperation; the advocate of government argues that monocentric coercive law is needed in addition, and indeed typically maintains that the amount of social order that can be maintained through non-governmental sources alone is quite small. [NB: Wikipedia presents a profile of hypothetical anarchist law]

Long notes that a great deal of social order is maintained through informal means alone, as shown by Robert Ellickson (Order Without Law: how neighbors settle disputes, 1994), disputes over land use are frequently resolved informally, without recourse to official adjudication, and certainly without recourse to legal statutes.

Case of China: By contrast, writing on the varieties of law in China, Fu Hualing (The Varieties of Law, 28 June 2011) distinguishes between:

Law: defined as a constitutional legal regime in which properly constituted authorities make and state legal norms (in a legal format) which are subsequently applied fairly by independent tribunals. There is a credible process of legal representation and judicial deliberation and a degree of transparency, and external accountability throughout the decision-making process.
Extra-law: a system in which power is neither directly derived from properly constituted authorities nor subject to independent oversight (judicial or otherwise). In contrast with law, extra-law does not allow deliberation, representation and decision-making that can be regarded as judicial. It has a strong political or policy orientation and the whole system is geared to political expediency or convenience.
Extra-extra law: comprises government measures that exist in some dark space, seemingly unrelated to any legal framework and devoid of any legal authority. Extra-extra law is an informal political institution characterized by a total lack of legality. It is used to advance some predatory and repressive government policies which cannot be justified by any law or extra-law. As such, extra-extra law is covered in secrecy and operates with no legal accountability... The legal system is regarded as weak and ineffective when it comes to sensitive issues. In these situations, intimidation through extra-extra law becomes expedient and even indispensable

International law: Harold Damerow (International Law) argues that international law lacks many of the characteristics of municipal legal systems.

There is no world legislature which makes international law. There is no global police force to arrest wrong doers nor a global justice department to try those arrested. There is no hierarchy of trial and appellate courts with clearly defined jurisdiction. There are so many differences between the international system and international law on the one hand and state-societies with their municipal legal systems that the question has arisen whether international law is indeed law properly so-called?

Is International Law really law properly so-called? The answer depends on your definition of law. John Austin's positivistic definition of law said no. Austin held that [international law] lacks a definite sovereign law-creator, courts with compulsory jurisdiction, and overwhelming sanctions to punish transgressions. Hans Kelsen suggested that war is the sanction behind international law. While it is true that international law differs from municipal law, it is, in my opinion, law properly so-called. The Austinian definition is too narrow. A proper definition of law must be able to explain all the varieties of law, of which there are at least three: customary laws of pre-state societies; municipal legal systems of modern state-societies; and international law operating within the international system.

Religious law: Discussion of "varieties of law" figures as Question 91 in St Augustine's Summa Theologica (1274) where six more specific questions are addressed. Is there: an Eternal Law, a natural law, a human law, a divine law, is the divine law one or several, is there a law of sin? In A Companion to the Summa (1942), Walter Farrell clusters the commentaries on these under the headings: Eternal law, Natural law, Human law, and Divine positive law.

Each religion is typically "governed" in some way by some particular form of religious law variously enforced by appropriate bodies -- in recognition of "divine law". Major religions each tend to have their own code of law, however this is understood, as well as bodies through which it is administered. Examples of religious law include: Canon law of the Catholic Church, the Sharia of Islam, the Halakha of Judaism, Hindu law, and Bahá'í laws

Law within intentional communities (sects and cults): A form of law may be evident in the governance of certain intentional communities, including religious orders. A particular example is that of the Transcendental Meditation movement with its elaboration of a Global Country of World Peace, a Natural Law Party, and a World Government of the Age of the Enlightenment). International groups such as the Church of Scientology, devoted to the practice and the promotion of the Scientology belief system, tend to have an elaborate system of rules of governance to be usefully compared with laws regulating their operations.

Groups otherwise considered unlawful may endeavour to impose a form of "law", especially in areas which they seek to control. This is evident in the case of resistance movements in occupied territories, liberation movements, terrorist groups, and organized crime groups.

Tribal law: This is evident in the case of tribal sovereignty established by treaty (Tribal sovereignty in the United States; First Nations of Canada; Australia; New Zealand). It is otherwise evident amongst the tribal peoples of Islamic culture, most notably in the conflict in Afghanistan (Akbar S Ahmed and David M. Hart, Islam in Tribal Societies: from the Atlas to the Indus, 1984).

Moral law: Also termed moral absolutism, this is an ethical view that certain actions are absolutely right or wrong, regardless of other circumstances such as their consequences or the intentions behind them.

Extra-territorial legal arrangements: Particular legal provisions may result from extra-territorial jurisdiction, namely the legal ability of a government to exercise authority beyond its normal boundaries. Examples are variously associated with military bases on foreign territory, enclaves (as currently evident in the case of Guantanamo Bay), and contractual concessions (notably for oil).

Other examples arise from secret treaties, covert arrangements and tacit agreements, as has been made evident with respect to the process of extraordinary rendition, namely the apprehension and extrajudicial transfer of a person from one country to another.

Legal exceptionalism: Special provisions may be made for imposition of military rule by military authorities over designated regions on an emergency basis. Such martial law is usually imposed on a temporary basis when the civilian government or civilian authorities fail to function effectively. Many examples are usefully cited in the Wikipedia entry. Other, possibly secretive, exceptions may be made for the actions required by government of security services, including targetted assassination.

Regulations: Possibly with the power of law, or as a substitute for it under particular circumstances, sets of regulations may be used to govern and restrict behaviour, and even to sanction those who fail to respect them. Professional organizations may be understood to be "governed" in some way by some particular form of "law" enforced to a degree by the relevant academic bodies.

Laws of science: Curiously, whilst assiduous in their quest for natural "laws", their recognition is typically (if not "naturally") dissociated from academic behaviour.

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Varieties of law as a mutually challenging array