Introduction

Abstract

The topic of the sources of law is a traditional one in jurisprudence. Yet, remarkably, very little attention has been paid to the topic in recent analytical jurisprudence. Much contemporary analytical legal theory does not consider the notion of a “source of law” at all. There is no entry for the term in the indices of such central contemporary texts as Alexy 1989; Beyleveld and Brownsword 1986; Dworkin 1978 and 1986; Finnis 1980; MacCormick 1978. Other theorists mention the term and pass on. Raz, for example (see Raz 1979), characterizes his theoretical position as “the sources thesis,” that every law has a social source. But he gives relatively little articulation of the concept of a source. Rather, he lays out the implications of such a thesis, leaving the term “source” intuitive and primary. Raz is defending a version of legal positivism. Others too mention the term simply as part of a defence of (Hart 1994; Waluchow 1994) or a critique of (Peczenik 1983; Soper 1984) legal positivism. There is no philosophical examination of the notion of a source of law outside of its use as a piece in the wider game of general theory of law. There is too much theory and too little description, to elucidate what it is to be a source of law.