THEORIES OF LAWINTRODUCTION TO LAW 1LAW 012

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WHAT IS THEORYTheory might be: A general account of things in the world involving elements of description and explanation Dualism – theory is separate from the world of things, it is part of the world of thought Theory claims to express truth – about things in the world; and Theory is expressed in words – or words and numbers or other symbols – so it is subject to interpretation.

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WHAT IS LEGAL THEORY• Theory employed to describe what law is; to better understand legal problems.• Also known as jurisprudence.• Jurisprudence is one of the branch of law that a law student must know.• Refers to the specifically legal philosophy and science. It has numerous branches that focus on a range of issues, from whether or not law should exist to what sort of penalties are appropriate for violations of the law

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Significance• Learn the origin or rationale behind certain law.• Should a law be law? Why is it must be enforced by the law?• Among questions asked under this branch of law: “What is law”? Or “What are the characteristic of a valid law?” or “Is the law moral?”• Legal theory is subject to test and proof. Many jurists may criticize each other and claim their theory is the best.

• Why do we need to study legal theory?– Analyze the legal problems– Give a law student a general idea to criticize, evaluate and assess the law-making process and the legal system.– Rationale behind certain law• Analyze, explain, classify and criticize the entire bodies of law.

NATURAL LAW• The law is in accordance with nature - true law - moral law - just and good rules to govern human relations. PRINCIPLES OF NATURAL LAWa) Rules that can be inferred from logical thinking and human reasoning.Example:-• If parliament were to enact legislation that all people must walk on their heads, such proposed law is contrary to natural law school - illogical and unreasonable .• Thus, not valid law and will not be accepted.

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b) It is the nature of every human being to know from his conscience what is right, good, proper and therefore lawful.Example: The law which intends to legalize abortion contravene morality and thus is not regarded as valid law from Natural law school point of view.c) Universal as it is applicable to all people in general no matter where they live.d) Immutable and cannot be changed by human intervention.e) Eternal, remains unchanged over time regardless of historical events, social attitudes and opinions.f) Higher law in the sense that it is superior to any man-made law.7

NATURAL LAW SCHOOL:OVERLAP THESIS• All forms of natural law theory subscribe to the Overlap Thesis which asserts that there is necessary relation between the concepts of law and morality.• The strongest form of Overlap Thesis underlies the classical naturalism of Aquinas and Blackstone.• Blackstone describes the thesis as :- “this law of nature, dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries and at all times: no human laws are of any validity if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately from this original.”

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NATURAL LAW SCHOOL:PROPONENTSAristotle• Natural law has the same force everywhere and does not exist by people’s contemplation. • It is universal.Cicero- • Claimed that god is the source of natural law, who gives the natural law its validity.• NL is also considered as a “higher” law, meaning that it is superior to any law created by people.John Finnis-• A set of principles of practical reasonableness in ordering human life and human continuity.

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William Blackstone• Law refers to rules of civil conduct prescribed by a supreme power in a nation/state commanding what is right, what is prohibited and what is wrong

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POLITICAL PHILOSOPHY• The ideas of natural justice, equality, human rights and freedom are derived from Natural law.• Natural law has been used to justify revolutions on the ground that the existing law infringed individuals’ natural rights.• Examples:- i) In US, the revolution against British colonial rule was based on appeal to the natural rights of all Americans to life and liberty. ii) French revolution also subscribe to the same natural rights especially right of equality.

NATURAL LAW SCHOOL:CONTRIBUTIONS

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FIELD OF LAWPrinciples of natural justicePrinciple of reasonable man in the law of tort.Interpretation of laws by the judges.Example of cases:-Corbett v Corbett [1971] L.R. p.83In Re B (A Minor) [1981] 1 W.L.R. 1421In Re D (Minor) [1976] 1 All E.R. 326Jilani v Govt. of Punjab Pak LD (1972) SC 139

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CRITICISM AGAINST NATURAL LAW• Ambiguities of the concept of natural law.• Positivits argue that whether something is law or not cannot be determined by referring as to whether it is moral, fair or just.• People may have different views on what is moral, just and fair.

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Conclusion• Natural law is not man made law. It came from the above (God/Divine).• It is universal in nature.• Unalterable.• Eternal• Highest law• Rationality – based on common good Reasonable.

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POSITIVIST SCHOOL• “Positivism” derived from Latin word, “Positium” which means posited.• Came into existence by early 20th century.• The philosophy holds that only positive law is law. i.e. juridical norms which have been established by the authority of the state (sovereign).• Positive law does not concern whether it is moral or not - It only concerns whether the law is fair or unfair – law is separate from laws of God. • Positive law upholds the notion that the citizen should obey the law. Failure to obey = punishment.

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Sir John Austin• The author of The Province of Jurisprudence Determined, and Lectures on Jurisprudence. (1832)• Positive law is a command laid down by sovereign and enforceable by sanction.• Law is made, not based on absolute wisdom.• Command- a person has no choice to obey or disobey; if he disobeys he will suffer penalty or punishment.• Sovereign makes the law, people only follow.• Not concerned with whether law is moral, just or unfair e.g. apartheid in South Africa, Nazi Law.• Thus, all law is positive as it is the expression of the will of supreme authority (sovereign).

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HLA HART• “Positivism and the separation of Law and Morals”.• Law is a system of rules specifically a systematic union at the center of primary rules and secondary rules. Hart takes different view from Austin.• According to him Austin only consider one kind of rule i.e. primary rules that require or prohibit certain kinds of behaviour. • Austin overlooked the presence of other primary rules that confer upon citizen the power to create, modify and extinguish rights and obligations in other persons. Example: the creation of contract is not a command backed by sanction.

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CONTRIBUTION OF POSITIVISM• Interpretation of lawCase: Cheney v Conn [1968]Facts: The appellant disputed this assessment on the basis that her taxes would be "devoted to the construction of nuclear weapons with the intention of using those weapons if certain circumstances should arise" and that this would conflict with an Act of Parliament: the Geneva Conventions Act 1957Held:What the statute itself enacts cannot be unlawful, what it provides is law. It is the law which prevails over every other form of law, and it is not for the country to say that the highest law is illegal.

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Case: PP V Yee Kim Seng [1983]Facts: The accused had been charged for being in possession of a hand-grenade in a security area without lawful excuse and without lawful authority, an offence punishable with death under section 57(1)(b) of the Internal Security Act, 1960.He argued that Section 57 of ISA infringes articles 5(1), 8(1), 12(1) and 149(1) of the Federal Constitution.Held:It was declared that the ISA, with all the provisions is perfectly valid and there is nothing in it which contravenes the Constitution.To provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in specified areas of Malaysia, and for matters incidental thereto.19

CRITISICM AGAINST POSITIVIST SCHOOL • No reciprocity – coercive order - one-way projection of authority.• Not necessarily an expression of the will of the sovereign e.g. Religion, custom.• Not all laws are commands - E.g. Private laws, administrative laws.• Absence of morality and justice - Judges when enforcing the law will have to see what law ought to be and not simply applying what law is.

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CONCLUSION• There are other proponents such as Jeremy Bentham, J.S Mill and Klaus.• Each proponents have their own interpretation of law. Ultimately, most of the jurists believes that positivist law has liberal view which separates law and morality.• The state is the pinnacle of law i.e. the law is made by the state and must be habitually obeyed.

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SOCIOLOGICAL SCHOOL• Main concern: Interpreting the law in the social context, to bring good to the society.• It started with the idea that it is the purpose of society and social relation which determine the nature, purpose and functions of law.• Law is wholly concern with its effect and results on society rather than treating law as will of god or command of sovereign.• Books and statutes containing formal rules, legislations and expositions of particular subjects is not where the real law in society is to be found• The crux of this school is the idea that law should be studied from the perspective of the society and the social science method is being utilized to achieve that purpose.

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Society needs rules to define and regulate all kinds of social relationship, between individuals and between groups. Society needs rules to control the behaviour of its members. Hence, it is considered as a form of social control. Law is not only about legality and punishment but it is an integral part of the overall social structures having links and dependencies with other social elements and forces.The socio-economic problem of the present time cannot be solved by means of the existing laws.  Law is seen as problem solving mechanism.

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Roscoe Pound• Law is an instrument of social engineering. Its function is to maximize the fulfillment of interest of the community and to provide the smooth-running of the machinery of the society.• Laid down the characteristic of sociological jurisprudence as:a) Regard working of law rather than the abstract content of law.b) Law as a social institution cautiously design on the basis of experiences and need of the people.• He introduced the doctrine of social engineering where law and its administration can be an agent of social change (knowledge of social sciences ).• This change was grounded on control, adjustment of social relations and general troubleshooting.

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• For a legal enforcement to be effective, the lawyer, jurist and legislator must study the society.• He also espoused the need to have a justice ministry, specifically to study the psychology and philosophy of judicial matter.• Role of a lawyer is like an engineer where he aim to build a structure of society in such a way as to establish the satisfaction of the maximum of wants while minimizing the friction.• Interest is comprises of demand, desire and expectation.a) Individual interestb) public interestc) Social interest

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Rudolph Von Ihering• His most influential work was Der Zweck im Recht (Purpose of Law).• Law is only an instrument for serving the end needs of the society. • The purpose of the law is to realize, protect, promote as well as to serve, satisfy and secure the interest of the society. • Ihering opined that in every society, there were individual interests as well as group interests. There was also interests of the society --- Inevitably, they will conflict.• For e.g.- right of a person to hold a land. His right to enjoyment of land vs right of the society to build a road on it? Which one prevails?

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• Such conflict will be resolved by giving priority to society – interest of the society is the paramount as against the interest of individual.• The state reconciliate the interests by means of sanctions which may take many forms i.e. economic wants and coercion.• State and law become a uni-sanction because of its coercive powers to compel the individuals to accept the decision. To give utmost priority to the society.

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CONTRIBUTIONS OF SOCIOLOGICAL SCHOOL• It helps us to understand the evolution of law in a better manner.• Examining the interaction between law and society – law is just not a study of abstract but play a creative and dynamic functions in society.• The element of human interest provides greater foundation of identity rather than the logical structure of the law.• A study of social interest is essential to the lawyer to enable him to understand legal system.• The judge and the advocate to interpret law to harmonize conflicting interests.

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CRITICISMS• Lawrence Friedman in 1986 writes on the shortcoming of socio-legal studies as follows:- To many observers, the work done so far amounts to very little;an incoherent or inconclusive jumble of case studies. There is (it seems) no foundation; some work merely proves the obvious, some is poorly designed.

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CONCLUSION• Law should be studied from the perspective of the society and such study is done by social science.• Law is not unique but only one of the social control norms.• Socio-economic problems of the present time cannot be solved by means of existing laws.• There is thing as ‘social justice’.

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