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THEORY
CHAPTER 1
INTRODUCTORY CHAPTER
DEFINITION, NATURE AND FUNCTION
Philosophy is taken from the Greek words, Philos and Logos, which
means love of wisdom.
Philosophy is the study of the universe that seeks to know the truth and
rational explanation of anything.
Philosophy of Law is that branch of philosophy which deals with the
wisdom of law. It studies the nature of law with particular reference to
the origin and end of law, and all the principles that govern its
formulation. It is part of practical philosophy.
The object of philosophy of law is the study of law in universal sense, as
law can also be studied as to its particular points in which the object is
Juridical Science or Jurisprudence.
Parts of the system of Juridical Science are:
1. Public Law
2. Private Law
Parts
1.
2.
3.
4.
5.
CHAPTER II
HISTORY OF PHILOSOPHY OF LAW
Cicero said that law is not a product of choice but is given by nature.
There is eternal law which is an expression of universal reason. Equity
and natural law are factors in an ideal law.
The contribution of the Romans to jurisprudence is the formulation of
codes, putting together in a systematic form the rules and practices.
THE PHILOSOPHY OF THE MEDIEVAL ERA THE INFLUENCE OF
CHRISTIANITY
Christianity as an advocate of liberty, equality, and the unity of the
human family through divine law became a challenge to the established
political order.
The influence of Christianity later became profound upon politics and
jurisprudence. Modifying the Greek and Latin philosophies that the
individuals supreme mission is to be a good citizen of the State,
Christianity said that the good goal of the individual is not only on civil
life but eternal happiness which can be obtained through submission to
the Divine will.
The Church asserts itself as an autonomous authority above the State.
The State is concerned only to earthly things while the Church, with
those that are eternal.
THE RENAISSANCE
The Renaissance, a rebirth that started in the 14th century, came about
to overcome the long period of excessive dogmatism. In Renaissance,
autonomy and freedom of investigation were awakened. The discovery of
the New World and the invention of printing press permitted the
propagation of new ideas. The Religious Reformation resulted in the
withdrawal of religious leaders from the authority of the Church.
Accepting Aristotles theory of being good in political society, law is
something that is presented by reason not by revelation. Natural, moral
law world exists even if there is no God.
CHAPTER III
HISTORICAL SCHOOL
SAVIGNY, OF THE VOCATION OF OUR AGE FOR
LEGISLATION AND JURISPRUDENCE
ORIGIN OF POSITIVE LAW
The law will be found to have already particular faculties and tendencies
of an individual people, inseparably united in nature, and only wearing
the semblance of distinct attributes to our view. That which binds them
into one whole is the common conviction of the people, the kindred
consciousness of an inward necessity.
For law, as for language, there is no moment of absolute rest; it is
subject to the same movement and development as every other popular
tendency; and this very development remains under the same law of
inward necessity, as in its earliest stages. Law grows with growth, and
strengthens with the strength of the people, and finally dies away as the
nation loses its nationality.
With progress of civilization, national tendencies become more and more
distinct law perfects its language, takes a scientific direction, and as
formerly it existed in the consciousness of the community, it now
devolves upon the jurists, who thus, in this respect, represent the
community.
LAWS AND LAW BOOKS
Requisites of a really good code:
Young nations, it is true, have the clearest perception of their law, but
their codes are defective in language and logical skill, and they generally
incapable of expressing what is best, so that they frequently produce no
individual image...
genius, so is the law. The source of the law is not the command of the
sovereign, not even the habits of the community, but the instinctive
sense of right possessed by every race.
Such is the approach of the historical school, and it naturally led to a
distrust of any deliberate attempt to reform the law. Legislation can
succeed only if it is in harmony with the internal convictions of the race
to which it is addressed.
The contribution of the historical school to the problem of the boundaries
of jurisprudence is that law cannot be understood without an
appreciation of the social milieu in which it has developed. The slow
evolution of law was stressed and its intimate connection with the
particular characteristics of a people.
But in Savignys particular presentation there were exaggerations of
which the historical method must be freed if it is to play its true part:
1. Some customs are not based on an instinctive sense of right in the
community as a whole but on the interests of a strong minority,
e,g, slavery.
2. While some rules may devlop almost unconsciously, others are the
result of conscious effort. Law has been used to plan the future
deliberately and not merely to express and order the results of past
growth.
3. The creative work of the judge and jurist was treated too lightly.
The life of a people may supply the rough material, but the judge
must hew the block and make precise the form of law.
4. Imitation plays a greater part than the historical school would
admit.
5. Savigny encouraged what Pound has termed as juristic
pessimism- legislation must accord with the instinctive sense of
right or it was doomed to failure. Hence conscious law reform was
to be discouraged.
CHAPTER IV
SEMINAL CONCEPTS (Philosophical Approach)
THE REPUBLIC
By Plato
CLASSICAL NATURAL LAW
According to Plato, when judgment of society takes the form of a public
decision of the state, it has the name law.
According to Socrates, public opinion is true opinion, and true opinion
is discovery of reality. He therefore concludes that law seeks to be the
discovery of reality, or more precisely, it is the true reality with respect to
the administration of the state.
Law may not always achieve its ideal of discovering true reality, still,
Socrates adds, no society believes that that just can really be unjust.
Whoever fails to reach reality, fails it find the law. Those who know
always accept the same views; they will not write differently at different
times on different matters. If we see some persons anywhere doing this,
we can say that they have no knowledge; and if they are mistaken in
what they describe as law, then that law is mere appearance and ought
not be accepted to be asserting a distinction between principles and
rules.
Plato offers another definition of law as the opportionment of reason.
Reason is apprehension of reality. So what did Plato mean by reality?
Plato once tentatively defined reality as power, by which he meant that
anything has real existence if it has inherent in it the power of being
affected or of affecting others, no matter how small.
Plato asserted that law was the discovery of true reality, appearing to
mean that the moral value of law increases as it approximates the ideal
law which exists in the world is reality.
Plato puts forward the theory that law is an instrument of social control
and thus suggests the problem of the end of law. He held that the end of
law was to produce men who were completely good. He therefore
rejected laws that did not incline to the end, asserting that a bad law is a
no law.
Was Plato hostile to law? Plato of the Republic preferred the adaptable
intelligence of the all-wise autocrat to the impersonality of the rule of
law. Heknew well the simple truth, as the trial of Socrates had shown
him, that the debating method of the courtroom, as distinguish from
cross-examination, was perhaps the least likely to lead to the discovery
of truth.
However, in the Laws and Statesman, Plato realized that on this earth
benevolent dictatorship was a counsel of perfection and that he would
better propose a solution which had a possibility of realization: society
should fall back upon law as second-best. He asserted that fixed laws
are to be preferred to the personal administration of the unscientific
ruler which is the type society usually receives.
For Plato, there was not a man among us whose natural equipment
enabled him both to see what was good for men as members of the
community, and on seeing it, always to be both able and willing to act for
the best. As Acton puts it, all power corrupts and absolute power
corrupts absolutely.
Law the generality of it could not always do justice to particular cases.
The State for Plato is a man on large scale. It is a whole form of various
individuals and solidly built, as body is formed of several organs, which
together make its life possible. Both in the individual and in the State,
there must reign that harmony which is obtained through virtue.
Justice is the virtue par excellence, insofar as it consists in a
harmonic relation between the various parts of a whole.
Three parts or faculties exist in the soul of the individual:
1. Reason which dominates
2. Courage which acts
3. sense which obeys
Similarly, in the State three classes are distinguished:
1. The wise to dominate
2. Warriors to depend the social organisms
3. Artisans and farmers who must feed it.
The cause of participation in and submission of the individual to the
State is the lack of autarchy, the imperfection of the individual, his
insufficient by himself.
For Plato, it is only the State which is a perfect being and sufficient unto
itself, and which absorbs and dominates all. The State, therefore,
dominates human activity in all its manifestations. Upon its rest the
duty to promote good in its every form. The power of the State is
ARISTOTLES POLITICS
Classical Natural Law
In the Platonic Minos, his definitions of law are partial. They are always
relative to the problem before him, and the aspect of law which they
emphasize constantly shifts in order to permit different consequences to
be drawn.
Law itself, like everything in the Aristotleian system has its end and to
Aristotle it was very clear that its task was to make men good. And to
Aristotle, the highest good is happiness or well-being.
Aristotle defined happiness as an exercise of the powers of life in
accordance with the virtue throughout the whole life-time. Happiness
takes its origin in virtue, it issues in pleasure, and material good-fortune
is its ordinary equipment.
Aristotles definitions satisfy the Platonic conditions for a happy life, but
as a juristic formula it has several defects:
The tasks of law can no more can be caught within the net of a
single formula than its numerous and contradictory aspects can be
confined within the limits of one definition.
The idea of the end of law is that it breaks down as it is put into
practice.
Aristotle held that the law has no power to command obedience except of
that habit.
Education also assists in making obedience to law second nature to the
citizens.
In the doctrine of the categories, conduct comes under the heading of
Quality. Virtue is a Quality and Aristotle assumes that the category has
four divisions: habits, or tendencies to do a thing; capacities for doing a
thing; feelings, passions and emotions prompting us to do a thing; and
external form or shape.
Habituation is the only method of acquiring that settled tendency to do
acts of a certain kind.
THEORY OF LEGISLATION
Aristotles normative view of the law is clearly apparent in his theory of
legislation. That law prescribes certain conduct: that conduct of a brave
man; that of a template man; that of a gentleman, and so with all the
other virtues and vices, prescribing some actions and prohibiting others.
Plato held that legislation should be so framed that it could be
incorporated in a manual of instruction for the young.
Lagislation is a branch of political science.
The legislator should not make conquest the aim of the state.
Law is the highest reason implanted in nature. It is the mind and reason
and mind of an intelligent man, the standard by which Justice and
Injustice are measured.
Reason when perfected is rightly called wisdom.
Those creatures who have received the gift of reason from Nature have
also received right reasons, and therefore they have also received the gift
of Law, which is right reason applied to command and prohibition. And
if they have received Law, they have received Justice also.
These principles of just law are based on the doctrines of respect and of
participation.
Points of Stammlers Theory on Law:
1. Law can exist only if actual society exists.
2. The realm of law and the natural world are distinct.
3. Most systems do assume that law is complete and exclusive
system in itself.
CHAPTER V
AUSTIN, THE PROVINCE OF JURISPRUDENCE
DETERMINED
Laws proper, or properly so called are commands; laws which are not
commands are laws improper or properly so called. Laws properly so
called, with laws improper by so called, may be aptly divided into the
four following kinds:
1. The divine laws, or the laws of God: that is to say, the laws which are
set by God to his human creatures.
2. Positive Laws: that is to say, laws which are simply and strictly so
called, and which form the appropriate matter of general and
particular jurisprudence.
3. Positive morality, rules of positive morality, or positive moral rules.
4. Laws metaphorical or figurative, or merely metaphorical or figurative.
The divine laws and positive laws are laws properly so called.
Of positive moral rules, some are laws properly so called, but other
laws are improper. Positive moral rules may be styled laws or rules
set or imposed by opinion: for they are merely opinions or sentiments
held or felt by men in regard to human conduct.
A law metaphorical or figurative and a law imperative and proper are
allied by analogy merely; and the analogy by which they are allied is
slender or remote.
independent political society. Every positive law or every law simply and
strictly so called is set by a sovereign person, or a sovereign body of
persons, to a member or members of the independent political society
wherein that person or body is sovereign supreme.
A law, in the most general and comprehensive acceptation in which the
term, in its literal meaning, is employed, may be said to be a rule laid
down for the guidance of an intelligent being by an intelligent being
having power over him.
Without extension by metaphor or analogy, the term law embraces the
following objects:
1. Laws set by God to his human creatures; and
2. Laws set by men to men.
The whole or a portion of the laws set by God to men is frequently styled
the law of nature, or natural law. But rejecting the appelation Law of
Nature as ambiguous and misleading, Austin named those laws or rules
the Divine Law or the law of God.
Of the laws or rules set by men to men, some are established by
superiors, sovereign and subject: by person exercising supreme and
subordinate government, in independent nations, or independent
political societies.
As contradistinguished to natural law, or to the law of nature , the
aggregate of the rules, established by political superiors, is frequently
styled positive law.
Closely analogous to human laws of this second class, are a set of
objects frequently but improperly termed laws, being rules set and
enforced by mere opinions or sentiment held or felt by an indeterminate
body of men in regard to human conduct. Austin denoted them by the
term positive morality. The name morality severs them from positive law,
while the epithet positive disjoins them from the law of God.
There are numerous applications of the term law, which rest upon a
slender analogy and are merely metaphorical or figurative. Such is the
case when we talk of laws observed by the lower animals; of laws
regulating the growth or decay of vegetables etc. For where intelligence
is not, or where it is too bounded to take the name of reason, there is not
the will which law can work on, or which duty can incite or restrain.
Every law or rule (taken with the largest signification which can be given
to the term properly) is a command.
develops not by logic alone, but by drawing new values from the life of
the community and by gradually reshaping the rules so that they accord
with the standards of today. We cannot always convict a dissenting
minority in the House of Lords of an error in logic what is frequently
decisive is the judges view of the purpose that law should achieve.
What is here st6ressed is only that the analytic system based on Austins
teaching did not make sufficient allowance for the creative element in law
and tended to magnify the static character of legal rules.
LAW AND ETHICS
Austin distinguished jurisprudence, the science of the law from the
science of legislation which he based on the principle of utility. But we
can see today that even the most positive member of the analytical
school did not succeed in separating the law that is from ideal elements.
Analysts treated law as a coherent system based on certain fundamental
principles from which particular rules may be deduced. Naturally, no
system of law is perfectly self-consistent, but any rule that could not be
fitted into the analysts framework was dubbed an historical accident or
logical anomaly which (it was predicted) would soon disappear. But the
analysts assumed that logical self consistency was the sole end of the
law. Clearly, law does not exist for the sake of consistency, for many a
rule that is theoritically anomalous is based on sound views of public
policy.
Thus, criticism of the analytical school emphasizes two very significant
truths for jurisprudence:
1. The law that is does not exist as a perfectly proportioned body of rules
deduced from a few leading principles. The social pressures of the past
have led to many convenient anomalies being adopted. Hence any
attempt to reconcile the rules on logical ground easily develops into a
study not of the law that is but of the law that should be, if logic were to
prevail.
2. It is extraordinarily difficult for any school to resist setting up an ideal
which can be made the basis for constructive criticism of the law. The
influence of their work was such, however, that their insistence that
lawyers should be concerned with law that is, combined with the dogma
that judges do not make law, led to a wasteful argument about whether
or nor judges do make law when ion fact judges do make law.
The analytical positivists still affirm the Austinian belief that:
Law can and ought to be made the subject of study separately from
morals;
the law, and that a legal order that at the time of its validity may have
conformed with the postulates of the moral order then prevalent, may
still be judged to be immoral today.
The thesis rejected by Pure Theory of Law:
That law by its nature must be moral and that immoral social order is
not a legal order, presupposes an absolute moral order, that is, one
valid at all times and places. Otherwise it would not be possible to
evaluate a positive social order by a fixed standard of right and wrong,
independent of time and place.
In its actual application by the science of law prevailing in a certain
legal community, this thesis amounts to an uncritical justification of
the national coercive order that constitutes this community.
The
dubious standard of an absolute morality is applied only to the
coercive order of other nations. From the point of view of science of
law it must be rejected because it is not the task of this science to
justify the law by absolute or relative morals; but to know and
describe it.
COMMENTS BY PATON ON THE PURE SCIENCE OF LAW
Kelsen wishes to free the law from the metaphysical mist with which it
has been covered at all times by the speculations on justice or by the
doctrine of ius naturae. He desires to create a pure science of law,
stripped of all irrelevant material, and to separate jurisprudence from the
social sciences as rigorously as did as the analysts. So the jurists, if he
is to be scientific, must study the legal rules abstracted from all social
conditions. Kelsen refuses to define law as a command, for that
introduces subjective and political considerations and he wishes his
science to be truly objective.
Kelsen wishes to separate the realm of jurisprudence from the natural
sciences. The latter deals with cause and effect. Law on the other hand
does not attempt to describe but rather to prescribe certain rules, to lay
down standards of action which men ought to follow.
For Kelsen, we cannot adopt the easy method of defining law:
The modern tendency to regulate so many of the affairs of the private
citizen means that the sphere of law is daily increasing.
Justice is not a satisfactory concept for a science of pure law, as
justice is irrational ideal that is, it cannot be clearly defined by
reason. Justice for many rules may be unjust, but they do not
therefore cease to be law.
The law does not state what actually does happen, but lays down what
ought to happen; yet if the legal order is to be effective, it must secure a
certain measure of acceptance.
The sphere of jurisprudence, then, is a study of the nature of this
hierarchy of norms, validity of each norm depending on its being laid
down in accordance with a superior norm until we reach the final norm
which imposes an obligation on a particular individual.
It is difficult to appreciate the significance of Kelsens work until the
application of theory is understood, but for the present we are concerned
only with the bearing of his theory on the problem of the boundaries of
jurisprudence. His claim that he has created an impartial and universal
science is justified, but we are not left with the dry bones of the law
deprived of the flesh and blood which give them life. Kelsen is not alone
in his disgust at politics masquerading as jurisprudence.
Kelsen is correct in showing that law is a weapon that may be used to
effect many end.
Kelsens work is also valuable in its emphasis that in executing the
norms of law the judge has much discretion it is impossible for any
general rule to provide for all contingencies, and the general rules must
be made precise by those who have the duty of applying them. But, in
order to maintain the air of impartiality, Kelsen regards as outside the
scope of jurisprudence all discussion of natural law, and all the
examination of the sources whence the judge draws his rules when there
is no authority in point. This leaves the science of law very pure, but
deprives it of all interesting contact with life itself. To exclude the whole
of sociology and of ethics leaves jurisprudence but a mental exercise in
abstract notions.
Kelsens methods does not even even give us a true picture of law, for
jurisprudence must go beyond the formal hierarchy of norms to study
the social forces that create law. The doctrine of natural law has
certainly been abused, but is jurisprudence therefore to ignore the whole
question of ethics?
The pure science of law is narrow one, and it must be complemented by
other and broader approaches.
CHAPTER VI
THE FUNCTIONAL SCHOOL
jurist
and
3. Look at the ethical and moral bases of rules rather than at its
sanction;
4. Have no necessary preference for any particular form of law;
5. Hold very diverse philosophical views.
4. RISE OF A SOCIOLOGICAL SCHOOL THE SOCIAL
PHILOSOPHICAL SCHOOL
The first movement in the new direction was from the then dominant
historical school in Germany.
1. THE POSITIVES THE MECHANICAL STAGE
Like the historical jurist, the first type of sociologist looked at law in its
evolution, in its successive changes, and sought to relate these changes
to the changes undergone by the society itself.
A later form of what is essentially the same type of juristic sociology is to
be seen in attempt to state all jural experience solely in terms of
economics. The doctrine has been set forth in its most extreme form in
America:
Law is the resultant of forces which arises from the struggle for
existence among men.
The dominant class will shape the law to favor themselves
The earlier type of sociological jurist service was in twofold:
1. Displacing the individualist starting-point by insisting upon the
importance of the group, of the class, of the compact plurality;
2. Compelling us to relate the law more critically to other social
phenomena.
2. THE BIOLOGICAL STAGE
Darwin had made evolution the central idea in scientific thought.
The jurists were attractted by the conception of natural selection: the end
of law is to give free play in an orderly and regulated manner to the
elimination of the unfit, to further selection by a well-ordered social
struggle for existence.
4.
5.
6.
CHAPTER VII
THE REALIST SCHOOL
THE PATH OF THE LAW
By Oliver Wendel Holmes
When we study law we are not studying a mystery but a well-known
profession. We are studying what we shall want in order to appear
before judges, or to advise people in such a way as to keep them out of
court.
The means of the study are body of reports, of treatise, and of statutes.
CHAPTER VIII
THE COMMUNIST THEORY
KARL MARX
Marxs ideas, particularly the prospect of inevitable liberation of the
working classes from bondage and oppression through revolutionary
action made a strong impression on Russian radicals.
LENIN ON MARX
Marxs teaching is complete and harmonious, providing men with a
consistent view of the universe, which we cannot be reconciled with any
superstition, any defence of bourgeois oppression.
The three components of Marxism are:
1. The philosophy of Marxism is materialism. Provided the humanity,
1 and especially the working class, with a powerful instrument of
knowledge.
2. Marx devoted all the greater attention to the study of economic order,
having recognized that it is the foundation upon which the political
superstructure is erected, i.e. capitalist society. The doctrine of
surplus value is the cornerstone of the economic theory of Marx.
3.
CHAPTER IX
THE POLICY SCIENCE SCHOOL LEGAL EDUCATION
AND PUBLIC POLICY: PROFESSIONAL TRAINING IN
THE PUBLIC INTEREST
By Harold D. Lasswell and
Myres S. Mcdougal
The reform of legal education must become more ever more urgent in a
revolutionary world of cumulative crises and increasing violence.
CHAPTER X
NATURAL LAW
ST. THOMAS AQUINAS, THE SUMMA THEOLOGICA
Law is a rule and measure of acts, whereby man is induced to act or is
restrained from acting.
The rule and measure of human acts is the reason.
power of moving from the will.