c



   



  

 
 Define different theories of law. Explain with the

help of example and which theory of law in your opinion
defines law best´



 : Prof u
u


: Salman Amjad
L1f07bbam2109

A

ë





VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV
   



law is a body of rules or action or conduct prescribed by controlling authority and having binding
legal force. That which must be obeyed and followed by citizens subject to sanctions or legal
consequences is a law. Law can be categorized into two different forms

 


 V
 V

 V 

  




Legal positivism is a school of thought in philosophy of law and jurisprudence. The principal
claims of modern legal positivism are that:

V There is no inherent or necessary connection between the validity conditions of law

and ethics or morality.
V Laws are rules made, whether deliberately or unintentionally, by human beings.
  
The foundations of law are accessible through human reason and it is from these laws of nature
that human created laws gain whatever force they have. The good for us human beings is
happiness, the living of a flourishing life. Happiness or flourishing consists in the fulfillment of
our distinctive nature, what we ³by nature´ do best. That involves the development and exercise
of our capacities for rationality, abstract knowledge, deliberative choice, imagination, friendship,
social cooperation based on a sense of justice, etc.

  


     

 V
 V


 V 

 V

   


a


 

 ! 

An expression of power (commands) set by political superiors to political inferiors and
sanctions are imposed incase of non compliance. According to Austin, positive law is a series of
both explicit and implicit commands from a higher authority. The law reflects the sovereign's
wishes and is based on the sovereign's power. Backed by sanctions and punishment, it is not the
same as divine law or human-inspired moral precepts. Viewing the law in this way, Austin did
not so much question what it ought to be but revealed it for what he thought it was. Analytical
jurisprudence sought to consider law in the abstract, outside of its ethical or daily applications. In
Austin's view, religious or moral principles should not affect the operation of law.

The basic points of Austin's theory of law are and criticism is following,

èV  
 

Austin states that a sovereign must be habitually obeyed by the bulk of the society and must be
legally illimitable.






Since law emanates from a multitude of state machinery, i.e. the parliament, legislature and
judiciary, it is probably wrong to say that it is the command of one person

èV ¦ 






In a revolutionary setting or a military take over, Austin¶s theory seems of no use as it is not
necessary that the bulk of the society owes habitual obedience to the political superior for
example 1999 (Musharraf¶s takeover)

èV  
 
 




" "#
 gave the concept of rule of law, which states that no one is above the law and no one
may act outside the law
 èV  

Austin considered sanctions essential to the existence of law. 






Sometimes law is perfectly conceivable without sanctions.

There are laws which are not commands with sanctions. For example Election statutes,
Contract laws etc (such laws provide mere facilities to citizens).


 $

Hart is a positivist but a particularly good one in that he soundly criticizes earlier positive theory.
This makes him a natural target because people reason that if positive legal theory R
work,
Hart would be the one to make it work. Hart¶s view is that a legal system arises from the
combination of primary and secondary rules. Hart criticizes the concept of law that is formulated
by John Austin that proposes that all laws are commands of a legally unlimited sovereign. Hart
says,. Laws may also differ from coercive orders in that they may not necessarily impose duties
or obligations but may instead confer powers or privileges. Hart feels that Austin¶s theory has
resulted in failure because the µorders backed by threats¶ concept does not take into account the
idea of µrule following¶ and without a rule one cannot state even the most elementary points of
law. Hart sought to rectify positivism of this wholly sanction based compliance. Hart believes
that laws need to be µself applicatory¶- used to control, guide and plan life out of court. Thus,
according to Hart, rules which are valid by the formal tests of a legal system are laws, even
though they might offend society¶s (or one¶s own) morality.

%& 

¦ 
Criminal prohibitions.
mV
Tort rules.
mV
The individual right to freedom of speech.
mV
The provisions of contracts that define the primary obligations of the parties.
mV
%& 
 ¦ 

mV Contract law rules that enable parties to form contracts.

mV The rules that allow testators to create a will.
 mV The constitutional rules that confer legislative powers on Congress.
mV The statute that authorizes the Supreme Court to promulgate rules of practice and
procedure for the federal courts.

 

   V

  




 
  


 


 V



  
 
 



 










.' 
According to ' , a legal system¶s existence is not based upon their enactment by a formal
procedure. He states that if certain moral qualities do not exist people don¶t obey the law. He was
a legal philosopher, who wrote The Morality of Law in 1964, discussing the connection between
law and morality. Fuller was professor of Law at Harvard University for many years, and is
noted in American law for his contributions to the law of contracts.
%
!¦ 
'

  

1.V The lack of rules or law, which leads to ad-hoc and inconsistent adjudication.
2.V Failure to publicize or make known the rules of law.
3.V Unclear or obscure legislation that is impossible to understand.
4.V Retroactive legislation.
5.V Contradictions in the law.
6.V Demands that are beyond the power of the subjects and the ruled.
7.V Unstable legislation (ex. daily revisions of laws).
8.V Divergence between adjudication/administration and legislation.

The more closely a system is able to adhere to them, the nearer it will be to the ideal, though in
reality all systems must make compromises. These principles, Fuller argues, represent the
"internal morality of law", and he argues that compliance with them leads to substantively just
laws and away from evil ones.
(

Aquinas uses the term "natural law" to refer to morality, or the moral law. He sees law as a
rational attempt to guide action. A law is a prescription that we act or not act; it may also exist in
us as an inclination to act in certain ways. A law must be made and promulgated by those in
charge of the community. Laws must be directed to the common good -- to the happiness that is
the goal of human actions. Prescriptions that aren't for the common good are unjust. A so-called
"unjust law" isn't properly a "law" at all.
For example: Drinking alcohol is allowed that is against to divine law.

)!
!! 
  



 *

Analyzing the above four theories of the law, I think Legal Positivism takes over the Natural
Law because if you try to enforce the rules and regulations what natural law tells us, it is in
reality much harder to act upon those procedures because it can create so much chaos in the
societies and thus whole public masses can come on the streets which proves not to be in favor of
the Country and among the two theorist of legal positivism. Jhon Austin¶s theory is more likely
because if we take decisions and make laws after analyzing the common people view¶s of the
whole country than it will be so much hard and difficult to sort out the best possible solution as
the Morality of everyone differs from person to person and if the morality of each and every
individual is different from others, then it is so hard to make laws which everyone will be
follows that, thus we cannot come to a common view¶s of the whole society. In this regard to the
reality, a law which is made by the Political Sovereign towards political inferior and is
enforceable by sanctions is the best possible way. Though for the time being, public might
offend it if those laws are against their morality & ethics, but as there is no other way, they get
used to it later on and does act upon those laws which government makes. This theory also
reduces the chances of chaos and unstable political and economical issues within the country.

%& 

?V US and UK had sent their troops to IRAQ to eliminate terrorism from that country,
though at that time there were more than half of the people of United Kingdom who were
opposing the government that they should not send their troops to IRAQ and rest of them
 were agreeing with the government to send their troops to IRAQ for war on terror. And
the result was that the government didn¶t listened to what the people were saying as the
morality and ethical issues of each of the person were different from others. But once
Tony Blair agreed, they had to follow the law.

?V The 
  ¦ 


 +
  (¦+) was an ordinance issued by the

former President of Pakistan, General Pervez Musharraf, on October 5, 2007. It
granted amnesty to politicians, political workers and bureaucrats who were accused
of corruption money laundering, murder, and terrorism between January 1, 1986, and
October 12, 1999, the time between two states of martial law in Pakistan.
?V Amendment of Article 1 of the Constitution.- In the Constitution of the Islamic Republic
of Pakistan, hereinafter referred to as the Constitution, in Article 1, in clause (2), in
paragraph (a), for the word "Baluchistan" the word "Balochistan", for the words "North
West Frontier" the words "Khyber Pakhtunkhwa", and for the word "Sind" the word
"Sindh", shall be substituted. This law is valid but immoral.