BASIC THEORIES OF LAW
WEEK 1 (10 APRIL - 14 APRIL 2023)
CLASS 1 | CLASS 2 |
| 3. - Islamic Law |
2. - Positive Law | 4. - American Realism |
LESSON PLAN
THEORIES OF LAW
JURISPRUDENCE
Jurisprudence is the study and theory of law. Scholars of jurisprudence, or legal theorists (including legal philosophers and social theorists of law), hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions.
SIGNIFICANCE
SCHOOLS OF LAW IN JURISPRUDENCE
Four primary schools of law are introduced to enable scholars of jurisprudence achieve this understanding.
NATURAL LAW
NATURAL LAW - CONCEPT
NATURAL LAW - CHARACTERISTICS
NATURAL
Based on nature and reason
UNIVERSAL
Applies to the entire human race
IMMUTABLE
It does not change
NATURAL LAW
VS.
MAN’S LAW
CLASSICAL NATURAL LAW
CLASSICAL NATURAL LAW
Classical Natural Law: Holds that morality is a function of human nature, and reason can discover valid moral principles by looking at the nature of humanity in society.
Medieval/Christian Natural Law: Aquinas distinguishes four kinds of law: eternal law (laws that govern the nature of an eternal universe); natural law (the will to do good and avoid evil); human law (man-made laws); and divine law (God's law).
If there is a conflict between natural law and man-made law, natural law will prevail since it is the true law.
PROPONENTS OF CLASSICAL NATURAL LAW SCHOOL
Natural law has the same force everywhere and does not exist by people’s contemplation. It is universal.
God is the source of natural law, who gives the law its natural validity
“Higher law” - superior than man-made law
Purpose to attain the state of “good”. What is good is valid.
NATURAL LAW - CONTRIBUTIONS
NATURAL LAW - CRITICISMS
20TH CENTURY NATURAL LAW
Natural Law Theory was highly attacked around the 17th Century and finally was rejected. The philosophy of Immanuel Kant (1724–1804), as well as the utilitarianism of Jeremy Bentham (1748–1832), served to weaken the belief that “nature” could be the source of moral or legal norms.
The rejection of Natural Law Theory was first accompanied by utilitarianism and later by positivism.
During the 20th Century, Natural Law received new attention, partly in reaction to the rise of totalitarianism and an increased interest in human rights throughout the world.
PROPONENTS OF 20TH CENTURY NATURAL LAW
Adam Smith: Proposes natural law in economics - “rational self-interest” theory.
Smith suggested that humans act rationally when making decisions involving their finances or monetary benefits which also have a powerful influence on the economy.
John Finnis: 7 basic human goods - life, knowledge, friendship, play, aesthetic experience, practical reasonableness, and religion.
C.S Lewis (Narnia): “There is a 'something' which is directing the universe, and which appears to me as a law urging me to do right.”
REVIVAL OF NATURAL LAW IN THE 20TH CENTURY
The reasons for the revival of natural law theory in the 20th century are; the rise of monopoly capitalism, fascism, the demand for human rights and dissatisfaction with the 19th century Legal Positivism movement.
POSITIVE LAW
POSITIVE LAW - LEGAL POSITIVISM
POSITIVE LAW - CONCEPT
Legal positivism is the legal philosophy which argues that any and all laws are nothing more and nothing less than simply the expression of the will of whatever authority created them. Thus, no laws can be regarded as expressions of higher morality or higher principles to which people can appeal when they disagree with the laws. It is a view that law is a social construction. The creation of laws is simply an exercise in brute force and an expression of power, not an attempt to realize any loftier moral or social goals. Therefore, from a positivist perspective, it can be said that “legal rules or laws are valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such”.
POSITIVE LAW - CHARACTERISTICS
PROPONENTS OF POSITIVE LAW
John Austin: “Positive law is a command laid down by sovereign and enforced by sanction”.
HLA Hart: Law is a system of rules comprising of ‘primary rules’ (rules that impose duties or obligations on individuals) and ‘secondary rules’ (rules that manage and control ‘primary rules’ - through legislature, courts or officials).
Jeremy Bentham: “Law as the expressed will of the sovereign”.
POSITIVE LAW - CONTRIBUTIONS
Accused was charged for possession of hand-grenade in a security area. He argued that Section 57 of ISA infringes his fundamental rights in Articles 5, 8, 12 and 149 of the FC. Court held that nothing in ISA contravenes with the provisions in FC, therefore it is valid.
POSITIVE LAW - CRITICISMS
TO BE CONTINUED…
Any questions…???
ISLAMIC NATURAL LAW
ISLAMIC NATURAL LAW - CHARACTERISTICS
The ultimate law giver is Allah, but mankind is also given limited powers to exercise law and justice through ijtihad
Sources:
Key Feature: the moral code and religious law of Islam
Istislah
Istislah is a method employed by Muslim jurists to solve problems that find no clear answer in sacred religious texts. It is related to the term مصلحة Maslaha, or "public interest".
Extratextual pragmatic considerations are commonly accepted in Islamic jurisprudence concerning areas where the Quran and the practices of the earliest Muslim generations provide no specific guidance. However, appeals to istislah or maslaha are controversial when the goal is reforming what has been considered to be divinely revealed law.
The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good what is self-evidently good, according as it tends towards the fulfillment of the person, istislah typically calls good whatever is related to one of five "basic goods."
Many jurists, theologians, and philosophers attempted to abstract these "basic and fundamental goods" from legal precepts. Al-Ghazali, for instance, defined them as religion, life, reason, lineage, and property, while others add "honor" also.
AMERICAN REALISM
LEGAL REALISM
A theory that all law derives from prevailing social interests and public policy. According to this theory, judges consider not only abstract rules, but also social interests and public policy when deciding a case.
Legal realism differs from legal formalism.
Judges do not make law, but mechanically apply it by logically deducing uniquely correct legal conclusions from a set of clear, consistent, and comprehensive legal rules (“legal empiricism”)
AMERICAN REALISM - HISTORY
The U.S. legal realism movement began in 1881 when Oliver Wendell Holmes Jr. published The Common Law, an attack on the orthodox view of law. "The life of the law has not been logic," Holmes wrote, "it has been experience."
American legal realism has aptly been described as "the most important indigenous jurisprudential movement in the United States during the twentieth century". It flourished during the 1920s and 1930s. Although the movement declined after World War II, it continues to influence how judges, lawyers, and laypersons think about the law.
AMERICAN REALISM - CHARACTERISTICS
PROPONENTS OF AMERICAN REALISM
Karl Llewellyn: Proposed that the facts and outcomes of specific cases composed the law, rather than logical reasoning from legal rules.
Jerome Frank: A judge's decision may be influenced by mundane things like what he or she ate for breakfast.
Roscoe Pound: “Realism is the accurate recording of things as they are, as contrasted with things as they are imagined to be or wished to be or as one feels they ought to be.”
AMERICAN REALISM - CRITICISMS
UK POSITIVISM vs. AMERICAN REALISM
UK POSITIVISM
Laws are commands issued by the uncommanded commander, i.e. the sovereign; such commands are enforced by sanctions; and a sovereign is one who is obeyed by the majority.
AMERICAN REALISM��Laws do not come from books (statutes) but are based on how the real world operates; laws are the result or decision of how an official solves cases and disputes; and whatever the judges declare will become law.
Despite their differences, American Realism and UK Positivism share one important belief - “the law as it is” and “the law as it ought to be”. Positivists look to the established primary rules and to secondary rules of recognition that designated law-making bodies. American Realists are skeptical about the degree to which rules represent the law, and seek to investigate how courts actually reach their decisions.
Thank you for your attention.
Any questions?
END