This blog post explores the essence of law by comparing three theoretical perspectives: viewing law as the institutionalization of custom, understanding it as a product of social structure, or interpreting it as the result of conflict and domination.
Discussions on the essence of law have long been ongoing. Among the oldest views is the custom theory, which seeks to grasp the essence of law within the customs formed in society. This theory posits that identifying and reaffirming customs rooted in society constitutes law itself, starting from the perspective that law is ultimately institutionalized custom. In primitive societies, the role of reaffirming such customs could be undertaken by an authority figure like a chieftain, while in modern legal systems, judicial institutions perform this function. Statutory laws enacted by legislative bodies are also understood as the result of confirming customs. For example, the prohibition of bigamy in civil law is explained as originating from the social custom of monogamy. Furthermore, the custom theory argues that laws that conflict with a society’s culture and customs, no matter how codified, struggle to possess legal effect, and that law only functions properly when it operates to reinforce customs. This clearly reveals the position that written law has limitations in changing custom.
There also exists structural theory, which understands law as an element of social structure and seeks the essence of law in its function within that structure. This theory criticizes the interpretation of custom theory, which views law as simply derived from social facts like custom or culture, pointing out the logical fallacy of using the concept of norms to explain norms. Structural theory posits that various elements constituting society—such as types of exchange, interrelationships of power, modes of production and distribution, and principles of organizational operation—are the key factors determining the form of law. In other words, it explains that law is a product emerging from the process of societal structuring and was introduced because rational measures were needed to maintain and operate this structure. Therefore, structural theory attributes different legal phenomena to differences in social structure.
The moshav-type settlements and kibbutz-type settlements established in Palestine in 1921 were similar not only in land size and population but also in their cultivation of homogeneous crops based on land sharing and their similar political leanings. Nevertheless, the legal structures of the two communities were entirely different. The moshav-type community had a judicial committee that enforced community rules; this body handled disputes and determined sanctions according to codified procedures. In contrast, kibbutz-style communities lacked such judicial bodies and had no codified rules or procedures. Structural theory explains this difference as follows: In kibbutzim, which maintained a system of communal ownership of crops produced through collective labor, the high level of intimacy among members allowed them to directly impose sanctions on individuals violating group norms. However, in moshavim, where private ownership of crops was recognized, members lived relatively independent lives. Consequently, informal discipline alone was insufficient for community operation, making formal procedures and institutional mechanisms indispensable.
Challenging the structural theory premise that law exists to serve society’s needs, conflict theory emerged, emphasizing the need to scrutinize the inequalities maintained and deepened through law and institutions. Conflict theory views law not as a product of consensus for social integration, but as a tool mobilized by dominant groups to perpetuate their interests by maintaining and reinforcing structures of oppression. In late 19th-century America, persistent efforts to enact child labor protection laws banning child labor culminated in legislation at the turn of the 20th century. This was the result of decades of reform movements seeking to address the problems of child labor—illiteracy, deteriorating health, and moral corruption. Custom theory would interpret this as a movement reaffirming America’s traditional custom of protecting children and family life. Structural theory would view this legislation as part of a process where social structures achieve equilibrium. Conflict theory, however, points out that this law led to the mass elimination of small businesses that relied on cheap labor for survival. It also highlights that many leaders of the reform movement were wives of large corporation presidents, and that the movement’s funding heavily depended on donations from large corporations. Conflict theory emphasizes that the law functioned to reinforce the interests of specific groups.
Thus, each theory faces considerable criticism from the other. Custom theory is attacked for rationalizing irrational or oppressive social and cultural practices. Structural theory is criticized for resting on the simplistic assumption that the existence of law stems solely from social necessity. Conflict theory also struggles to avoid the criticism that it can drift toward an overly biased perspective. Nevertheless, these debates play a crucial role in illuminating the essence of law from multiple angles. They form a still-meaningful theoretical landscape by enabling critical reflection on what functions law performs within society and how it is formed and operates.
