Understanding the law requires understanding its creation through human will alongside its use as an organization of society, which in turn places it directly in the tension between order and freedom.

When looking at the law, as a human creation, one will find all laws come from the same source of human desire. Whether the law in question is autocratic or an expression of a collective free will, desire is the starting point. Desire precedes experience and can best be described as a human instinct that demands to play itself out across the social field. This is true of laws as well as political decisions, cultural ideas, or economic objects. All of these products of desire serve the purpose of satisfying that initial desire within society, and the law is no exception. Experience or use of these actualized effects will come later, and will determine what shape the social field will take and whether or not the original desire was satisfied. There is a nonlocality of form in desire, which means that before its actualization in the society forms exist as pure potential. This illustrates that reality in itself has two main and simultaneous components. The virtual is that of the pure potential of things, while the actual is the specific articulations of the virtual in particular times and places. Desire acts as the catalyst between the virtual and the actual, bringing certain forms into actual existence to serve that desire. These actual products are therefore structures that are made up of reality and in turn give shape to reality. That means that these structures are made up of various parts and relationships. All particular laws also follow this structural design in order to properly organize reality.

The structure of the law can take on the characteristics of a language system, especially in light of the fact that both systems give meaning to reality to some extent. The open external parts of the structures are objective, and can be defined as semantic. These parts come directly from the content of reality, and is how the structure is directly connected to the overall reality or society. These finite parts are the general background of the structure, which imitates the virtual potential of reality. For the law, these parts can be humans and other objects. In contrast, the closed internal relationships of structures are subjective, and can be defined as syntactic. These relationships refer to each other through human action and are not connected directly to the surrounding reality. These infinite relationships are the particular expressions of the structure, which corresponds to the actual. For the law, these relationships can be the ideas and rules that must work together as regulation of humans. To use the analogy of language, each language structure has the general laws of the language and the particular speech acts. There is also the vocabulary and grammar of a language. For the law, just as a vocabulary refers directly to reality through naming reality, the parts of the law must refer to reality and society. And just as a grammar refers to the internal arrangement and rules of sentences, the relationships that link the parts of the law must maintain a consistency with itself. To complete the analogy, the parts of the law set the basic parameters of what can be said through the law, but the particular combination of parts by way of the relationships of the law are limited but never absolutely determined by its parts. Through the semantic and syntactic nature of the law, one will find that there is both a static and dynamic aspect to the law which influences how it acts in a society.

The law is unique in that it is a product of desire that also must take on the appearance of being independent of desire in order to function as an organization of the social field. This in fact means that in order to do what it was intended, the law must appear to be absolutely natural and absolutely eternal regardless of the fact that the law continually comes up against the fact of the contingency of reality, which undermines the law’s permanence.

The nature of the law is its appearance of permanence and universality. It has a general part and a particular part, where the entire law is described as general terms and a plurality of legal rules. The general terms must be eternal in order for the specific rules to be binding as the law when they are applied to specific behavior. Every law presents itself as necessary at every point in time, and the total aggregate of laws are essential at each moment in time. But the nature of the law changes with individual changes over time. New laws are passed by legislatures, or old laws are deemed unconstitutional by courts. These changes transform what the law says, but the law as a body of rules are maintained through time. These small particular changes disrupts the universal opaqueness of the law, meaning that law does not necessarily come from reality or nature but is a construct of humans. However, the law is most effective when it looks like it is a direct representation of truth and not a method for humans to regulate themselves, subject to constant change or modification. This is the contradiction that lies at the heart of the nature of the law, a product of human desire and freedom that denies its origins in order to do its job. When the law works, there is a practical and structural validity of laws. The practical validity of particular laws is when they are applied to particular cases, when the law is put to use concerning a particular action or behavior of citizens who are under the law. The structural validity of law remains constant despite changes that may arise during the practical validity. This sense of validity perpetuates positions of authority that in turn enforce the law. In order for the law overall to be a direct communication of truth, there must be organs of authority to express its position as truth. The general component of the law acts as an articulation of social order.

The social order is the constant element that maintains the regularity of the overall validity of the law. The social order is transcendent when the structural validity is unable to be altered. Transcendence occurs most clearly in societies that have very little democracy or direct public participation, such as theocracies or authoritarian governments. But transcendence can exist to some degree in democracies as well, since the law has a structural validity that appears natural and eternal. The law’s transcendence is the method that preserves validity despite any changes in the law. The struggle between transcendence and immanence is strongest in democracies, since the democratic process is itself immanent. Democracies are immanent since the law is created by those who are participants, and political power is shared by these participants. But the law as a separate entity always attempts to be transcendent in order to have the authority of truth while upholding the social order. The real fact is that laws are rules that are decided upon by individuals, which is an aspect of constituent power. When there is the refusal of a particular law, it makes the social order immanent and this social order is questioned with each implementation of the law. The total nature of the society goes through a metamorphosis as long as the law is directly controlled by those who must follow the rules. This is the centerpiece of human freedom, and the ability of people to be autonomous in a society that is formed for their service. Transcendence enters into the picture of a democracy through the establishment of political representation. Representatives are the impersonal roles for people to fill and articulate the social order, which is an aspect of constituted power. Since the law is created by people who act as representatives of the social order, representation is an abstraction of individual choice in regards to the law. Within the state, political representation maintains the transcendence of the law and a limitation of democracy. Therefore, the real issue of democracy is the ability of dynamic constituent power to disrupt the static constituted power, while at the same time constituted power tries to contain constituent power. The split nature of the law is the battleground for such a struggle. The choice is whether the law is the expression of human desire or the commandments of nature.