CHAPTER 3 :

THEORIES
OF LAW
PREPARED BY:
MDM NAMIRAH MOHD
AKAHSAH
LEARNING OBJECTIVES

• At the end of lesson, students should be

able to :
1. Explain the meaning of theory and legal
theory
2. Differentiate between naturalist,
positivist and sociologist.
STRUCTURE OF LECTURE
1. WHAT IS THEORY?
2. WHAT IS LEGAL THEORY?
3. THREE THEORIES OF LAW
3.1. NATURALIST
3.2. POSITIVIST
3.3. SOCIOLOGIST
 WHAT IS THEORY?
Theory might be:
 WHAT IS LEGAL THEORY?
⚫ Theory employed to describe what law is; to better
understand legal problems - jurisprudence.
⚫ Jurisprudence is one of the branch of law that a law
student must know. All about theories and
philosophies regarding law.
⚫ It helps us better understand the creation ,
application and enforcement of laws.

Better understanding our

Understand theories
laws
/philosophies behind law
SIGNIFICANCE
Why do we need to study legal theory?
 3
THEORIES OF
LAW
NATURALIST POSITIVIST

SOCIOLOGIST
 (1)
NATURALIST
1) Intro NL
2) Overlap thesis of NL
3) NL proponents
4) Characteristics/Principles of NL
5) Contributions
6) Criticism of NL
7) Conclusion
 NATURAL LAW
⚫ A legal theory that recognized law and morality as deeply
connected , if not one and the same.
⚫ It is rules that can be drawn or inferred from human
reasoning or logical thinking.
⚫ Its nature of every human being to know from his
conscience what is right, correct and therefore lawful.
⚫ They believe that human laws are defined by morality,
and not by an authority figure like a govt/ king.
⚫ The law is not simply what is enacted in statutes, and if
legislation is not moral, then it is not law.
 NATURAL LAW SCHOOL:
OVERLAP THESIS
⚫ All forms of natural law theory subscribe to the Overlap
Thesis which affirms 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 :-

MORALITY
“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 LAW
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.”
NATURAL LAW SCHOOL:
PROPONENTS
 He distinguished four types of law:
a) Eternal - laws of the universe --- the whole
community of the universe is governed by divine
reason

b)Divine - the revealed word of God

c) Natural - natural law was eternal law as it

Thomas Aquinas applied to human conduct

d) Man-made -
constructed by human •He believes that NL is universal, unchanging and same for
everyone BUT he not believes in the totality of NL
beings to fit and
(man-made or human law also plays a vital roles).
accommodate the •Man-made law – complementing the natural law.
requirements of •There are areas of human conduct where natural law
natural law to the does not spell out the particular ways that human beings
ought to behave themselves.
needs and contexts of •But man-made law must be inline with NL – any
different and changing contravention would regard the law as having no binding
societies. effect and invalid.
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 - not valid
law

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.
 NATURAL LAW SCHOOL:
CONTRIBUTIONS
(1) POLITICAL PHILOSOPHY
⚫ The ideas of natural justice, equality, • Natural law can be find in specific
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.
⚫ Upheld the principle of morality – closely
associated with religion
(2) FIELD OF LAW
principles such as:
▪ Principles of natural justice
▪ Principle of reasonable man in the
law of tort.
▪ Interpretation of laws by the judges.
Example of cases which apply
Natural law theory are:-
1. Corbett v Corbett [1971] L.R. p.83
2. In Re B (A Minor) [1981] 1 W.L.R.
1421
3. In Re D (Minor) [1976] 1 All E.R. 326
4. Jilani v Govt. of Punjab Pak LD
(1972) SC 139
(please refer your textbook)
 Example of case:
Corbett v Corbett [1971] L.R. p.83
• The judge in this case ordered
the marriage to be annulled on
the ground that a marriage
between a man and a person
who had undergone sex
change was null and void since
it could not involve the natural April Ashley (Mrs
Corbett)
biologically-determined @male to female
trans-sexual
consequences of marriage.
 CRITICISM AGAINST NATURAL LAW

1. The principles of Natural law were rejected by

Jurists such as Bentham and Austin---- its vague &
ambiguities of the concept of natural law.

– The ambiguity arose due to the fact that the word ‘nature’ or
‘natural’ carries several meanings as the word nature are referred
as:
i. The nature of human and human natural rights such as
freedom and equality (John Locke)
ii. Natural phenomena such as fire that burns (Aristotle)
iii. Divine element such as law is God’s will and god’s command
(Cicero)
 2. Criticism to the natural view that human law must
be in conformity with natural law and any law does not
comply with natural law is not law.

– The NL view was critics by Positivist. As they believe that whether

something is law or not law, cannot be determined with reference
to the question whether its is moral, fair or just.
– The reason 🡪 people may have different ideas about what is just,
fair or moral.
– For positivist, something is law if its authoritatively laid down or
recognized as such within the legal system though it may be bad
law.

Law and morality

LAW MORALITY
are separated
- positivist view
3. Jurist Ihering & Montesquieu : rejects the
universality of Natural law.

– Ihering rejects the idea of natural law for all nations and times as
being ‘no better than that medical treatment should be same for
all patients.
– According to Ihering, societies differ from one another in their
form and social character, hence, NL cannot be applied to them
indiscriminately.

– Montesquieu rejects the universality of NL, as law, although based

on some principles of natural law, must be influenced by
environment and conditions such as religion, custom, commerce
etc.
Conclusion
 (2) POSITIVIST

1) BASIC CONCEPT
2) PROPONENTS OF POSITIVISM
3) SEPARABILITY THESIS
4) CHARACTERISTICS OF
POSITIVISM
5) CONTRIBUTIONS
6) CRITICISM TOWARDS
POSITIVISM
 POSITIVISM
BASIC CONCEPT
• “Positivism” - originated from Latin word, “Positium” which means
posited. Its came into existence in the middle of 19th century and well
developed by early 20th century.

• What is positivism? It is system of philosophy holds that only positive

law is law. i.e. juridical norms which have been established by the
authority of the state (sovereign).
K.Olivecrona – legal positivism connotes the view that all law is positive in the
sense of being as expression of the will of a supreme authority.

• Positivist are blind to values. Positive law has nothing to do with ideal
or just law, it has no regard to goodness or badness or the law.
Klaus – definition of law must be entirely free of moral notions. It implies that
any reference to moral considerations in defining legal validity or legal system
inconsistent with Separability thesis.
• Law are separated from justice, morality, religion as it is based on the
power of superior.

HLA Hart – law is not reproduce or satisfy certain demands of morality. He

introduced authority- power model where the law is made top-down rather
than from the bottom-up.

John Austin – law is separate from the laws of God, from moral imperatives
and from any natural law philosophy. Law is simply and strictly set by political
superiors to political inferiors.
 POSITIVISM
PROPONENTS

SIR JOHN AUSTIN HLA HART

[The author of The Province of [Positivism and the separation of Law
Jurisprudence Determined, and Lectures and Morals]
on Jurisprudence. (1832)]

“Law is made up of institutional

“Positive law is a command facts like orders and rules and those
is an expression of desire by are made by people thinking and
acting”
a political superior (e.g. king,
parliament etc.) to a political
“Law is a system of rules specifically
inferior (eg. subjects, a systematic union at the center of
citizens) ” primary rules and secondary rules.”
**
 POSITIVISM:
SEPARABILITY THESIS
⚫ Positivism – Separability Thesis
⚫ Positivism are not concerned with whether law is moral, just
or unfair.
⚫ Examples: the situation happens : apartheid in South Africa,
Nazi Law.

Thus, all law is positive as it is the expression of the will of

supreme authority (sovereign).

LAW MORALITY
CHARACTERISTICS OF POSITIVISM
 CONTRIBUTIONS OF POSITIVISM
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.
INTERPRETATION
OF ❑ He argued that Section 57 of ISA infringes articles 5(1),
LAWS 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.
The court take stand that they should not question the morality or otherwise of the
law passed by Parliament as the courts are just concerned with the administration of
law as it found in the statute books
 CASE: CHENEY V CONN (1968)
❑ Facts: A taxpayer challenged the validity of the Finance Act
1964 because it provided for expenditure on nuclear
weapons which is contrary to international law (the Geneva
Convention was incorporated into UK Law by the Geneva
Convention Act 1957).
❑ Held:
“... A statute may be used is an invalid purpose, then such remedy as
there may be must be directed to dealing with that purpose and not to
invalidating the statute itself. What the statute itself enacts cannot be
unlawful, because what the statute says and provides is itself the law,
and the highest form of law that is known to this country. It is the law
which prevails over every other form of law, and it is not for the court
to say that a parliamentary enactment, the highest law in this country,
is illegal.”
 CRITISICMS AGAINST POSITIVIST SCHOOL

1. Law not necessarily an expression of the will of the

sovereign .
▪ Not all law emanate from will of sovereign
▪ E.g.: Religion, custom – recognized by the court , but not from
will of sovereign.

2. Austin - all law as command. It has been criticized that

not all laws are commands.
▪ Writers like Bryce, Gray and Dicey think that Private laws,
administrative laws, the law defining what is contract is- cannot
be categorized as command.
▪ Laws which not contain command – eg: repealing statutes or law
defining what a contract is.
3. Criticism against positivist view that law imposed duty
and punishment, as many law neither impose duty or
followed by any punishment.
▪ Example: law concerning marriage does not impose duty on
anyone to marry. It merely sets out the conditions and procedures
which they should follow for a valid marriage.

4. Rigid separation of law from the ideals of justice has been

criticized by others.

5. Criticism against fear of punishment as the motive for

obeying the law.
▪ fear is not only reason why people obey the law.
▪ Fear is just another motive besides respect, habit and etc.
CONCLUSION
 (3)
SOCIOLOGIS
T
1) BASIC CONCEPT OF SOCIOLOGIST
2) PROPONENTS
3) CHARACTERISTICS OF SOCIOLOGIST
4) CONTRIBUTIONS
5) CRITCISM TOWARDS SOCIOLOGIST
 SOCIOLOGICAL SCHOOL
BASIC CONCEPT
History : Auguste Comte, a french philosopher is first person to coin word ‘sociology’. Early
sociologist : concern with the study of society than the study of law in relation to society. Later,
this school studies the effects of law and society on each other.

• Main concern :Interpreting the law in the social context, to bring good to the
society.
• Law is wholly concern with its effect and results on society rather than treating
law as will of god or command of sovereign as law exists for the needs of the
society.
• Books and statutes containing formal rules, legislations and expositions of
particular subjects is not where the real law in society is to be found.
• 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.
 SOCIOLOGICAL SCHOOL
PROPONENTS
“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.”

⚫He introduced the doctrine of social engineering where law

and its administration can be an agent of social change
(knowledge of social sciences ).
⚫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.
⚫He introduced the phrases ‘law in books and law in
Roscoe Pound action’ to distinguish between the study of law which
(chief exponent of concerns with the theoretical problems with the study
sociological) which concern with practical problems.
⚫His principal concern is to harmonize the law in books and
the law in action.
 Ehrlich
[introduced the concept of living law
through his book Fundamental
Principles of the Sociology of Law]
•He states that law depends on social
facts not a state authority.
•He divides the source of law into
two, which are :
i. formal law
ii. living law : it could be discovered
by observing the practice by
people. It also could be observed in
custom, morality, and practices of
groups and associations such as in
trade and commerce.
•There will always be an inevitable
gap between the norms of formal
law and those of actual behavior.
Rudolph Von Jhering
• Law is only an instrument for
serving the end needs of the society
not individual.
• Purpose of the law- to realize,
protect, promote as well as to serve,
satisfy and secure the interest of the
society.
• He opined that in every society, there
were individual interests, group
interests and interests of the society.
Certainly, they will conflict.
– Eg: 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?
– Answer : resolved by giving priority
to society. Govt reconciliate the
interests by means of sanctions i.e.
economic wants and coercion.
 SOCIOLOGICAL SCHOOL
CHARACTERISTICS

Crux of Sociologist – the idea that law should be studied from the
perspectives of the society.

1 2 3

4 5 6
 SOCIOLOGICAL SCHOOL
CONTRIBUTIONS

• Roger Cotterrell : Socio –legal studies • It helps us to understand the

– considerable impact on the law, on 3 evolution of law in a better manner.
1
legal education and on law publishing.
• It helped focus greater attention on
institutions such as tribunals, and • A study of social interest is essential
different techniques of decision making 4 to the lawyer to enable him to
and conflict resolution such as understand legal system.
alternative dispute resolution.
• Pound’s theory enables the judge
5 and the advocate to interpret law to
• Great sociologist [Comte, Max Weber, harmonize conflicting interests.
2 Herbert Spencer, & Emile Durkheim]
studied society and the phenomenon of
law, how law reacts with social actions
or how law affects social behavior.
They examined the interaction through
fieldwork studies.
 CRITICSM AGAINST SOCIOLOGICAL

The main criticisms against the sociological school are the

followings:
1.The terms 'social solidarity' and 'social engineering' are vague
and create confusion.
2.Men and society can be compared with machine
3.Jurists like Duguit disregarded the importance of the State.
4.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.