INTRODUCTION TO LEGAL THEORIES (LAW034)

CHAPTER 1:
WHAT IS LAW?

PREPARED BY:
MDM NAMIRAH MOHD AKAHSAH
 LEARNING OUTCOMES

• The student must be able to: 

 Describe basic knowledge of law;
 Explain academic and critical thinking
pertaining to pervasiveness of law and truism
about human nature;
 Apply issues and problems pertaining to the
paradox of law in society.
 Demonstrate the basic knowledge on the
obligation to obey the law.
STRUCTURE OF LECTURE

1 2 3
WHAT IS LAW?

4
 General definition of Law
Oxford English Dictionary:
“ The body of enacted or customary rules recognised by community
as binding.” 

5
 (1) DESCRIPTIVE LAW
Describe what law is (doctrinal),
explains why the law is as it is
(explanatory) and its
consequences.
It exists in many context such as
law of economics, law of science,
law of nature. It formulates the
course of nature, its for scientist
or economist to discover them.
(2) PRESCRIPTIVE LAW
Prescribe how people ought to
behave i.e order, directive,
instruction.
Do not describe facts, but
demands that men shall behave in
certain ways. It is set of
rules/principles that govern and
regulate human behaviour.
7
8
Various Propositions and Approaches
Pertaining to Law

9
St. Thomas Aquinas
(Naturalist)

10
 Thomas Acquinas divides law into 4
categories:
LAW EXPLANATION
law of divine reason, know only to God. It is considered
LEX AETERNA as God’s law for the governance of universe, a deliberate
(Eternal law) act of God and everything, not only man, is subject to it.
law provided in the scriptures and religious books and
LEX DIVINA
said to have descended from God. It directs human
(Divine law)
beings to their supernatural end (God).
directs them to their goal on earth as prescribed by God.
LEX NATURALIST
It is the same for all men since all are rational and they
(Natural law)
inclined to act according to reason.
man-made law also known as positive law. It governs
LEX HUMANA human beings as members of the particular communities
(Human law) regardless of their religion.*
John Austin
(Positivist)

12
Austin categorized law as
follows:
 HLA Hart
(Positivist)

14
HLA Hart classify law into 2
categories:
Roscoe Pound
(Sociologist)

16
 Legal
System of process Regulate
rules society

Therefore, from all the

definitions of law that we
discuss, we can conclude that
there are several concept can
command be construed. enforceable

sanctions sovereign
 PERVASIVENESS OF LAW

“law is proliferating tapestry of tradition, custom, usage,

convention, principle, policy, precedent, by law, rule,
order, statute, decision, directive, regulation, and treaty.
Law’s aspects flow inevitably into morality, politics,
ideology, history, philosophy, religion and society.” 18
 Why is there law in What is the need for
the society? law?

Can a society
be governed smoothly What is the function
without any kind of and purpose of law?
law?

19
WHAT WOULD HAPPEN IF
THERE WERE NO LAWS?
 For you further reading, please refer chapter law and society
in your textbook.

• Law provide mechanism

for facilitating adaption
to change.
• The parliament may
legislate a law to regulate
behaviour.
• e.g. Sedition Act- to curb
sensitive issues such as
race relations, sex
equality etc.

• Law resolves conflict and provides a

rationalized and conclusive
settlement to disputes.
• Law is used as one mode to control the society. • Law also provides a formalized
• Formal form of control – insufficiency of mechanism for settling disputes i.e.
informal form of control. Court.
• The use of law as a penal instrument to • Other mechanism for resolving
prohibit and prosecute criminals – deter crime conflicts e.g. arbitration, mediation,
conciliation
DIFFERENT PERSPECTIVES OF LAW

22
(1) Law as cultural expression

Savigny (historical jurist) believes that legal

system was part of the culture of a people and it is
the expression of the people - from habit to value,
from custom and tradition to rules and regulation.

Montesquieu states that the law was the product of

custom, local manner and physical environment
where a good law must conformed with the spirit of
society. 23
24
 (2) Law as divine revelation

Aquinas – “….the whole community of the universe is

governed by divine reason…”

25
(3) Law as an instrument of
government

Marxism-Leninism - Law is used as the only tool

of the State to maintain and safeguard the
interest of the capitalist class, a dominant group
in society.

Malcolm Wood claims that law is but one a weapon

in massive political tool- combination of forces,
actions and inactivity. E.g. forces including
repression, media manipulation, censorship etc. 26
From opinion jurist above, we could see
2 different ways about law and law
making, which are:
 (4) Law as legal system
• Legal system is made of legal institutions (courts, prisons, parliament etc) and
includes people who in one way or another make the law as professional life
(judges, magistrates, lawyers)
• The legal system consist of – Parliament, Judiciary, Executive, legal profession and
etc.
• The existence of a legal system is measured via:
• Statute, Regulation, Act - Laws in that particular society
• Parliament (Legislature) - Institution for making and amending the laws
• Judiciary (Court) - Agency that determines the violation of the laws / settling disputes between people.
• Law Enforcers - Agency to enforce the law
•

Chilsholm and Nettheim : law is equated with

government and legal system. 28
WHY DO WE OBEY THE LAW?

29
(1) Legal duty

30
(2) Fear of sanction

31
(3) Moral duty

32
(4) Benefits & convenience

33
(5) General habits & obedience

34