THEORIES OF LAW

INTRODUCTION TO LAW 1
LAW 012

1
WHAT IS THEORY
Theory might be:
 A general account of things in the world involving elements of
description and explanation
 Dualism – theory is separate from the world of things, it is
part of the world of thought
 Theory claims to express truth – about things in the world;
and
 Theory is expressed in words – or words and numbers or
other symbols – so it is subject to interpretation.

2
WHAT IS LEGAL THEORY
• Theory employed to describe what law is; to
better understand legal problems.
• Also known as jurisprudence.
• Jurisprudence is one of the branch of law that a
law student must know.
• Refers to the specifically legal philosophy and
science. It has numerous branches that focus on a
range of issues, from whether or not law should
exist to what sort of penalties are appropriate for
violations of the law

3
 Significance
• Learn the origin or rationale behind certain law.
• Should a law be law? Why is it must be enforced
by the law?
• Among questions asked under this branch of law:
“What is law”? Or “What are the characteristic of a
valid law?” or “Is the law moral?”
• Legal theory is subject to test and proof. Many
jurists may criticize each other and claim their
theory is the best.
• Why do we need to study legal theory?
– Analyze the legal problems
– Give a law student a general idea to criticize,
evaluate and assess the law-making process and
the legal system.
– Rationale behind certain law
• Analyze, explain, classify and criticize the entire
bodies of law.
 NATURAL LAW
• The law is in accordance with nature - true law -
moral law - just and good rules to govern human
relations.
PRINCIPLES OF NATURAL LAW
a) Rules that can be inferred from logical
thinking and human reasoning.
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 .
• Thus, not valid law and will not be accepted. 6
b) It is the nature of every human being to know from his
conscience what is right, good, proper and therefore
lawful.

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.
c) Universal as it is applicable to all people in general no
matter where they live.

d) Immutable and cannot be changed by human

intervention.

e) Eternal, remains unchanged over time regardless of

7
historical events, social attitudes and opinions.
 NATURAL LAW SCHOOL:
OVERLAP THESIS
• All forms of natural law theory subscribe to the
Overlap Thesis which asserts 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 :-
“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 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.”
8
 NATURAL LAW SCHOOL:
PROPONENTS
Aristotle
• Natural law has the same force everywhere and does not
exist by people’s contemplation.
• It is universal.
Cicero-
• Claimed that god is the source of natural law, who gives the
natural law its validity.
• NL is also considered as a “higher” law, meaning that it is
superior to any law created by people.
John Finnis-
• A set of principles of practical reasonableness in ordering
human life and human continuity. 9
William Blackstone
• Law refers to rules of civil conduct prescribed by a
supreme power in a nation/state commanding what is
right, what is prohibited and what is wrong

10
 NATURAL LAW SCHOOL:
CONTRIBUTIONS
POLITICAL PHILOSOPHY
• The ideas of natural justice, equality, 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.

11
FIELD OF LAW
Principles of natural justice
Principle of reasonable man in the law of tort.
Interpretation of laws by the judges.

Example of cases:-

Corbett v Corbett [1971] L.R. p.83

In Re B (A Minor) [1981] 1 W.L.R. 1421
In Re D (Minor) [1976] 1 All E.R. 326
Jilani v Govt. of Punjab Pak LD (1972) SC 139

12
CRITICISM AGAINST NATURAL LAW
• Ambiguities of the concept of natural law.
• Positivits argue that whether something is law or
not cannot be determined by referring as to
whether it is moral, fair or just.
• People may have different views on what is moral,
just and fair.

13
Conclusion
• Natural law is not man made law. It came
from the above (God/Divine).
• It is universal in nature.
• Unalterable.
• Eternal
• Highest law
• Rationality – based on common good
Reasonable.

14
 POSITIVIST SCHOOL
• “Positivism” derived from Latin word, “Positium” which
means posited.
• Came into existence by early 20th century.
• The philosophy holds that only positive law is law.
i.e. juridical norms which have been established by the
authority of the state (sovereign).
• Positive law does not concern whether it is moral or not -
It only concerns whether the law is fair or unfair – law is
separate from laws of God.
• Positive law upholds the notion that the citizen should
obey the law. Failure to obey = punishment.
15
Sir John Austin
• The author of The Province of Jurisprudence Determined,
and Lectures on Jurisprudence. (1832)
• Positive law is a command laid down by sovereign and
enforceable by sanction.
• Law is made, not based on absolute wisdom.
• Command- a person has no choice to obey or disobey; if he
disobeys he will suffer penalty or punishment.
• Sovereign makes the law, people only follow.
• Not concerned with whether law is moral, just or unfair e.g.
apartheid in South Africa, Nazi Law.
• Thus, all law is positive as it is the expression of the will of
supreme authority (sovereign).

16
HLA HART
• “Positivism and the separation of Law and Morals”.
• Law is a system of rules specifically a systematic union at the
center of primary rules and secondary rules. Hart takes
different view from Austin.
• According to him Austin only consider one kind of rule
i.e. primary rules that require or prohibit certain kinds of
behaviour.
• Austin overlooked the presence of other primary rules
that confer upon citizen the power to create, modify
and extinguish rights and obligations in other persons.
Example: the creation of contract is not a command backed
by sanction.
17
CONTRIBUTION OF POSITIVISM
• Interpretation of law
Case: Cheney v Conn [1968]
Facts: The appellant disputed this assessment on the basis that
her taxes would be "devoted to the construction of nuclear
weapons with the intention of using those weapons if certain
circumstances should arise" and that this would conflict with an
Act of Parliament: the Geneva Conventions Act 1957
Held:
What the statute itself enacts cannot be unlawful, what it
provides is law. It is the law which prevails over every other
form of law, and it is not for the country to say that the highest
law is illegal.

18
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.
He argued that Section 57 of ISA infringes articles 5(1), 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.
19
 CRITISICM AGAINST POSITIVIST SCHOOL

• No reciprocity – coercive order - one-way projection of

authority.
• Not necessarily an expression of the will of the sovereign
e.g. Religion, custom.
• Not all laws are commands - E.g. Private laws,
administrative laws.
• Absence of morality and justice - Judges when enforcing the
law will have to see what law ought to be and not simply
applying what law is.

20
CONCLUSION
• There are other proponents such as Jeremy Bentham, J.S
Mill and Klaus.
• Each proponents have their own interpretation of law.
Ultimately, most of the jurists believes that positivist law
has liberal view which separates law and morality.
• The state is the pinnacle of law i.e. the law is made by the
state and must be habitually obeyed.

21
 SOCIOLOGICAL SCHOOL
• Main concern: Interpreting the law in the social context, to
bring good to the society.
• It started with the idea that it is the purpose of society and
social relation which determine the nature, purpose and
functions of law.
• Law is wholly concern with its effect and results on
society rather than treating law as will of god or command
of sovereign.
• Books and statutes containing formal rules, legislations
and expositions of particular subjects is not where the real
law in society is to be found
• The crux of this school is the idea that law should be
studied from the perspective of the society and the social
science method is being utilized to achieve that purpose. 22
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.
The socio-economic problem of the present time cannot
be solved by means of the existing laws.
Law is seen as problem solving mechanism.

23
Roscoe Pound
• 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 .
• Laid down the characteristic of sociological jurisprudence
as:
a) Regard working of law rather than the abstract content
of law.
b) Law as a social institution cautiously design on the basis
of experiences and need of the people.

• He introduced the doctrine of social engineering where law

and its administration can be an agent of social change
(knowledge of social sciences ). 24
• For a legal enforcement to be effective, the lawyer, jurist
and legislator must study the society.
• He also espoused the need to have a justice ministry,
specifically to study the psychology and philosophy of
judicial matter.
• 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.
• Interest is comprises of demand, desire and expectation.
a) Individual interest
b) public interest
c) Social interest

25
Rudolph Von Ihering
• His most influential work was Der Zweck im Recht
(Purpose of Law).
• Law is only an instrument for serving the end needs of the
society.
• The purpose of the law is to realize, protect, promote as
well as to serve, satisfy and secure the interest of the
society.
• Ihering opined that in every society, there were individual
interests as well as group interests. There was also
interests of the society --- Inevitably, they will conflict.
• For e.g.- 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?
26
• Such conflict will be resolved by giving priority to society –
interest of the society is the paramount as against the
interest of individual.
• The state reconciliate the interests by means of sanctions
which may take many forms i.e. economic wants and
coercion.
• State and law become a uni-sanction because of its
coercive powers to compel the individuals to accept the
decision. To give utmost priority to the society.

27
 CONTRIBUTIONS OF SOCIOLOGICAL SCHOOL
• It helps us to understand the evolution of law in a better
manner.
• Examining the interaction between law and society – law is
just not a study of abstract but play a creative and dynamic
functions in society.
• The element of human interest provides greater
foundation of identity rather than the logical structure of
the law.
• A study of social interest is essential to the lawyer to
enable him to understand legal system.
• The judge and the advocate to interpret law to harmonize
conflicting interests.
28
CRITICISMS
• 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.

29
CONCLUSION
• Law should be studied from the perspective of the society
and such study is done by social science.
• Law is not unique but only one of the social control norms.
• Socio-economic problems of the present time cannot be
solved by means of existing laws.
• There is thing as ‘social justice’.

30