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Chapter 2 – Values-based Law
There is a widely held but mistaken view that law and legal process exist independent
of human opinion (the objectivist myth). In this chapter, I advance a theory of values-
based law which shows that legal decisions cannot possibly be entirely based on facts. I
call my theory ‘values-based law’ because I propose that law is a response to and a
product of subjective, human values – law is based on values.
This chapter is in three parts. In the first part, I argue that while laws may exist as part
of the governing framework of life in modern society, they do not work just because
they exist. Rather they work because we value them. When enough of us value the
rules, we exist in societies with stable social order.
Laws, rules and conventions are part of the external reality of our social world. But it is
how we engage subjectively with a situation which influences whether we choose to
follow the rules currently objectified in our societies.
The objectivist myth creates the impression that we live in stable, predictable societies
in which laws are detached from subjective human evaluation. In the second part of this
chapter, I demonstrate exactly why this perception is illusory. To do this I adapt a
popular philosophical thought experiment – what would life be like in the ‘state of
nature’ - drawing on the work of Golding (1954), seventeenth century philosophers and
contemporary examples. It quickly becomes clear that in an environment without rules,
our behaviours are governed by our individual desires and preferences. It is then
equally apparent that law cannot exist without evaluation by at least some members of
society and social structures (designed by people) to uphold and maintain it.
Value judgements about the way we ought to behave are objectified – in the form of
laws, rules and conventions - as a result of our socialisation and societal institutions.
This process is the concern of the third part of this chapter.
Thomas Kuhn recognised that values have a significant role in scientific revolution. I
make use of his theory to demonstrate how values become objectified in law.
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