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A fundamental reconsideration of the project of a general theory of law, this chapter argues that no general account can be given of what law in fact is without explicit attention to why it has the features or elements it has. The best way in to an explanatory general description of law can start by attending to primal situations such as playground bullying, and to what is needed in such a situation. The primary reality of the law is as a reason for action, a claim on my (its subject's) decision and action. Such legal claims (obligations) fulfil the need for positive law best when they are moral obligations. Brian Leiter's sound objections to theorizing by ‘conceptual analysis’ do not support his own ‘naturalism’. Hart's best work on law was not conceptual. Coleman's criteria for evaluating theories of law are radically unsound. Gardner's new account of legal positivism rightly identifies it as at best a minor fragment of legal theory, and undermines its claim to be any part at all.

This introductory chapter discusses the ‘positivist’ ambition to consider law simply as a kind of social fact to be described, and the corresponding ‘social-fact sources thesis’. Any such description, if general, must consider human needs. Accurately describing law's sources displays the many evaluative considerations of need and desirability that contribute to a legally sound identification of the law's content and authority. Normative/evaluative legal theory can do — with greater explanatory (as well as justificatory) power — all that a would-be value-free general theory of law can. The relation between law and morality cannot be considered without asking what morality requires in complex society. The Introduction's second section relates Part Two's eleven chapters to those themes. The third section, on legal reasoning, puts Dworkin's ‘one right answer’ thesis into the context of legal system as not momentary, and discusses the problem of lawless judging. The final section identifies the two senses of ‘legal system’, relating them to the author's work on constitutional transitions and to the legally important distinction between statements and propositions.

This chapter focuses on Bentham's general theory of law. Bentham contemplated and elaborately documented the abuses of the English law of his day, the fantastic prolixity and obscurity of its statutes, the complexity and expense of its court procedure, the artificiality and irrationality of its modes of proof. Bentham was, of course, constantly preoccupied with the abuse of language to cloud the issues in controversy, especially political controversy. But the point which he made about the mystifying force of imposter terms such as ‘the maintenance of order’ is really part of something much wider. For it is just a particular manifestation of a very fundamental and original feature in Bentham's whole austere approach to the philosophy of law and politics.