chapter 1-what is law2

8/14/2019 Chapter 1-What is Law2

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Muhammad Nizam Awang@AliFaculty of Syariah & LawIslamic Science University of Malaysia

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What is legal philosophy?Why we need to understand about what is law?

Natural lawLegal positivismSociological viewAmerican realismIslamic law

Function of lawClassification of law

Legal terminologies & legal maxims

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It is a marriage between philosophy(jurisprudence) and law

What is jurisprudence?What is law?What is legal system?

Legal philosophy studies about lawand legal system

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Law is defined differently by different people in differentexisting legal systems in different communities/ societies

What say you:

Should we have one-fits-all definition or many definitions about what is law?If yes/no, why?

Do we need a general guide of defining what is good or bad law?If yes/ no, why?

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What is natural law ? - law which is founded onnature

What is nature? - what exists & how man oughtto behave

The basis of natural law:Law is what is ought to beContent of law set by nature

The nature refers to nature of human beingsand the worldIt holds validity everywhere.Closely ties with objective, external existence

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The Art of Rhetoric:

Aside from the particular laws that each

people has set up for itself, there iscommon law that is according to nature.

He also noted that natural justice is a

species of political justice that would beestablished under the best politicalcommunity

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Law is closely associated with justice and ethics. Law may

become embodiment of correctreasoning if it uses reason andapply insight into the nature of

conduct.

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Every human law has just somuch of natural law as its

derived from the law of nature.But if in any point it deflectsfrom the law of nature, it is no

longer a law but a perversion of law.

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A universe governed by chance and necessity, witha God that created things, but refrained fromsubsequent interference.

Law should guide us on capability. It lies in two reasons toguide us:

Not to injure or being injuredIn our own conduct

** Hes the father of western international law

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Commentaries on the Laws of England (1765-1769) section 2 .

This law of nature, being coeval with mankindand dictated by God himself, is of coursesuperior obligation to any other - It is bindingover all the globe, in all countries, and at alltimes: no human laws are of any validity, if

contrary to this (nature); and such of them asare valid derive all their force, all theirauthority or immediately from this original.

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Natural law and Natural rights (1980)

The principles of natural law explainthe obligatory force of positive law.

The essential function of law is toprovide justification for statecoercion. Otherwise, it would be anunjust law. Unjust law is legallybinding, but is not fully law.

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The Morality of Law (1964) procedural(internal) morality: law must be:1) publicly promulgated ;2) expressed in general;

3) prospective in effect;4) understandable;

5) consistent with one another;6) must not require conduct beyond the power of the affected parties

7) changed accordingly; not too frequent8) administered consistent with their wording.

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Leviathan (refer to 19 laws of nature inside)A precept , or general rule , found out by reason,by which a man is forbidden to do that which is

destructive of his life, or takes away the means of preserving the same; and to omit that by which hethinks it may best be preserved.

The natural law could prevail when men to submit tothe commands of the sovereign.

Thus, the ultimate source of law only comes from thesovereign, and the sovereign's decisions need not begrounded in morality, legal positivism is born.(influence Jeremy Bentham )

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Natural law is based on abstractevidence and human conscience.

Does lack of measurement aboutnature renders natural law invalid?

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What is positive?Oxford Advanced Dict (2004): giving clear anddefinite proof; showing clear evidence that aparticular substance is present

What is positive law?Means a scientific study of body of rules calledlaws. The analysis exclude extraneous matterssuch as social context, political reason andpsychological background.It was the expression of will of the law givingauthority (i.e. black-letter law).

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The basis of positive law:Law is what it is in factLaw originates from recognized authority(sovereign)Operate on inferior (subordinates)Lies in separability thesis no connectionbetween law and morals/justice/morality

(**but it does not mean morality is irrelevant!)(**just put morality in different continuum!)

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A law is an assemblage of signs,declarative of a volition, conceiveor adopted by the sovereign in astate, concerning the conduct to beobserved in a certain case by acertain person or class of personswho in the case in question are or

are supposed to be subject to hispower

[Driving on the left side of the road]

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The Province of Jurisprudence Determined (1832)

Law is a command by sovereign and isbacked up with the threat of sanction.

[the gunmans story who robbed a bank]

Command, sanction, habit of obedience &sovereign

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Law must consists of grundnorms(basic norms) that exist with bindingforce. The legitimacy of norms aredetermined by the efficacy of thesystem. The validity of a norm issubject to other norms of the higher

level in the hierarchy of norms.

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The Concept of Law (1994)

Law (or legal system) consists of two types of

rules:Primary rules : a defined set of rules imposingprohibitions, duties & rights.

Secondary rules : confers powers (public orprivate). They (body of authority) makepossible the creation and changing of legalrules.

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Farewell to Legal Positivism in TheAutonomy of Law: Essay on LegalPositivism (1996)

Definition of law must be entirely freeof moral notions. Any reference to

moral consideration in defining thelaw, legal validity and the legalsystem is inconsistent with thepositivism.

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The law is whatever follows from aconstructive interpretation of the

institutional history of the legalsystem. Moral principles that peoplehold dear are often wrong, even tothe extent that certain crimes areacceptable if your principles areskewed enough.

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Validity of a legal rule determined by sovereign,society or habitual obedience? (Austin)

Command of sovereign need to be backed by threat?

Which one is correct for legal positivism:Law and morality are separate @Morality is irrelevant to every law

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Sociological jurists believe effectiveness of law depends on importance of techniques of the social sciences and knowledge culled

from sociological research

Basis of sociological view Law reflects society

Valid law ensures social solidarity

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the task of sociology, is to understandhuman conduct in as much as it ismeaningful.

Societies are most essentially marked by ahigh degree of purposive rationalization.

The rationalization of modern law inwestern societies takes on the specific formof formal rationalization.

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law serves as an indicator of social solidarity,and specifically, the development of mechanicto organic solidarity. Solidarity can be observed

in the evolution of law from a repressive to arestitutive system.Sociology is the scientific study of social factsin terms of its methodology, social facts mustbe considered as things.

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Advocacy in socio-legal studies is atransition-phase. Social- science

scientific research methods holdgreat importance of placing the lawin its social context. It is atransdisciplinary enterprise andaspiration to broaden understandingof law as a social phenomenon.

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..what law is and what law does cannot becaptured in any single scientific concepts.

The project to devise a scientific concept of law was based upon a misguided belief thatlaw comprises a fundamental category. Tothe contrary law is thoroughly a culturalconstruct,, lacking any universal essentialnature. Law is whatever we atatch the labellaw to.

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American Realism

Islamic LawFunction of lawClassification of lawLegal terminologies & legal maxims

chapter 1-what is law2

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