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What Is Law
What Is Law
Hobbes (1588-1673):
1. law of the nature can be discovered by reason which
says what a man should do and what he should not do.
2. Man has natural desire for security and order.
3. This can be achieved only by establishing superior
authority which must command obedience.
RENAISSANCE
Lock (1632-1704):
1. the purpose of government and law is to upheld and protect the
natural right (freedom, equality, liberty etc.) of the subjects.
2. So long as the government fulfills this purpose, the laws given by it are
valid and binding.
3. but when it ceases to do that its laws have no validity and the
Government may be overthrown.
Rousseau (1712-1778):
1. by the social contract, men united for the preservation of their
rights of freedom and equality.
2. For this they surrendered their rights not to a single individual
sovereign but to a community to which Rousseau given the name of
general will.
3. If the Government and laws do not conform to the general will, they
are to be overthrown.
4. Thus his natural law theory stands for the freedom and equality of
men.
MODERN PERIOD
The early modern period began approximately
in the early 16th century; notable historical
milestones included the European Renaissance
and the Age of Discovery.
Kohler:
Defines law as the standard of conduct which
is consequence of the inner impulse that urges
towards a reasonable form of life, emanates
from the whole, and is forced upon the
individual.
ANALYTICAL SCHOOL
Hobbs defined Law - As the commands of him or
them that have coercive power.
Jeremy Bentham (1748-1832): the purpose of law is
to bring pleasure and avoid pain.
Pleasure and pain are the ultimate standards on which
a law should be judged.
He rejected Natural law.
His keen desire for law reform based on the doctrine
or utility,
his ambition based for codification based on complete
dislike for judge made law
Pleaded for codification.
Greatest happiness of the greatest number.
Jeremy Bentham (1748-1832 AD)
Utilitarianism: Humans are motivated to seek
pleasure and avoid pain. Thus, law should
seek to produce the greatest happiness for
the greatest number of people.
A system of law has the following
requirements:
i) authoritative body,
ii) legal commands,
iii) an imposed duty or obedience,
iv) enforcement through penalties.
John Austin (1790-1859 AD) (father of English
Jurisprudence)
1. His main work is "The province of jurisprudence
determined”.
2. Defined Law as a rule laid down for the guidance
of an intelligent being by an intelligent being
having the power over him".
3. He determines and characterises the notion of
law, i.e. law properly so called which is distinct
from morals and other law that are described as
laws improperly so called.
4. "A Law is a rule of conduct imposed and enforced
by the sovereign”.
The school of thought found by him known as
‘analytical’, ‘positivism’, “analytical
positivism”.
According to him, two types of law
a. Law of God
b. Human Laws: 1. Positive law are the laws strictly
so called(set by political superior to political
inferior or by private persons in pursuance of a
legal right) 2. Laws not set by men as political
superior that includes positive morality
2. law improperly so called: