Muhammad Nizam Awang@Ali Faculty of Syariah & Law Islamic Science University of Malaysia


 What is ‘legal  Why we need

philosophy’? to understand about ‘what is law’?

 Natural law  Legal positivism  Sociological view  American realism  Islamic law  Function of law  Classification of law  Legal terminologies

& legal maxims


 It

is a marriage between philosophy (jurisprudence) and law
 What is ‘jurisprudence’?  What is ‘law’?  What is ‘legal system’?

 Legal

philosophy studies about law and legal system

Law is defined differently by different people in different existing 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?


What is ‘natural law’ ? - law which is founded on nature What is ‘nature’? - what exists & how man ought to behave The basis of natural law:  Law is ‘what is ought to be’  Content of law set by nature  The nature refers to nature of human beings and the world  It holds validity everywhere.  Closely ties with objective, external existence

The Art of Rhetoric: Aside from the particular laws that each people has set up for itself, there is ‘common law’ that is according to nature. He also noted that natural justice is a species of political justice that would be established under the best political community


Law is closely associated with justice and ethics. Law may become embodiment of correct reasoning if it uses reason and apply ‘insight’ into the nature of conduct.’


‘Every human law has just so much of natural law as its derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.

A universe governed by chance and necessity, with a God that created things, but refrained from subsequent interference.

Law should guide us on capability. It lies in two reasons – to guide us:  Not to injure or being injured  In our own conduct ** He’s the father of western international law


Commentaries on the Laws of England (1765-1769) – section 2.
 This law of nature, being coeval with mankind

and dictated by God himself, is of course superior 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 (nature); and such of them as are valid derive all their force, all their authority or immediately from this original.


Natural law and Natural rights (1980)

The principles of natural law explain the obligatory force of positive law. The essential function of law is to provide justification for state coercion. Otherwise, it would be an unjust law. Unjust law is legally binding, but is not fully law.

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 frequent 8) administered consistent with their wording.

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 he thinks it may best be preserved.
 The natural law could prevail when men to submit to

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

 Natural

law is based on abstract evidence and human conscience. lack of measurement about nature renders natural law invalid?

 Does


 What is ‘positive’?  Oxford Advanced Dict (2004): giving clear and

definite proof; showing clear evidence that a particular substance is present

 What is ‘positive law’?  Means a scientific study of body of rules called

‘laws’. The analysis exclude extraneous matters such as social context, political reason and psychological background.  It was the expression of will of the law giving authority (i.e. black-letter law).


 The

basis of positive law:

 Law is ‘what it is’ in fact  Law originates from recognized authority    

(sovereign) Operate on inferior (subordinates) Lies in separability thesis – no connection between law and morals/justice/morality (**but it does not mean morality is irrelevant!) (**just put morality in different continuum!)


A law is an assemblage of signs, declarative of a volition, conceive or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons who in the case in question are or are supposed to be subject to his power
 [Driving on the left side of the road]

The Province of Jurisprudence Determined (1832)

‘Law is a command by sovereign and is backed up with the threat of sanction.’
 [the gunman’s story who robbed a bank]
▪ Command, sanction, habit of obedience & sovereign

Law must consists of grundnorms (basic norms) that exist with binding force. The legitimacy of norms are determined by the efficacy of the system. The validity of a norm is subject to other norms of the higher level in the hierarchy of norms.


The Concept of Law (1994) Law (or legal system) consists of two types of rules: Primary rules: a defined set of rules imposing prohibitions, duties & rights. Secondary rules: confers powers (public or private). They (body of authority) make possible the creation and changing of legal rules.

Farewell to Legal Positivism in The Autonomy of Law: Essay on Legal Positivism (1996)

Definition of law must be entirely free of moral notions. Any reference to moral consideration in defining the law, legal validity and the legal system is inconsistent with the positivism.

The law is whatever follows from a constructive interpretation of the institutional history of the legal system. Moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if your principles are skewed enough.

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

 


 Sociological

jurists believe effectiveness of law depends on importance of techniques of the social sciences and knowledge culled from sociological research of sociological view –

 Basis

 Law reflects society  Valid law ensures social solidarity


 “the

task of sociology, is to understand human conduct in as much as it is meaningful.’ are most essentially marked by a high degree of purposive rationalization. The rationalization of modern law in western societies takes on the specific form of formal rationalization.

 Societies


 …’law

serves as an indicator of social solidarity, and specifically, the development of mechanic to organic solidarity. Solidarity can be observed in the evolution of law from a repressive to a restitutive system”.  Sociology is the scientific study of social facts… in terms of its methodology, social facts must be considered as things.’


 Advocacy

in socio-legal studies is a ‘transition-phase’. Social- science scientific research methods hold great importance of placing the law in its social context. It is a transdisciplinary enterprise and aspiration to broaden understanding of law as a social phenomenon.’

 ‘..what

law is and what law does cannot be captured in any single scientific concepts. The project to devise a scientific concept of law was based upon a misguided belief that law comprises a fundamental category. To the contrary law is thoroughly a cultural construct,, lacking any universal essential nature. Law is whatever we atatch the label law to.’


 American Realism  Islamic Law  Function of law  Classification of law  Legal terminologies

& legal maxims


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