LAW 034

Introduction to Legal Theories

CHAPTER 1:
WHAT IS LAW?

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1. Definition of “Law”

• There is no single definition on “law”.

• Two principle forms of legal theory:

(i) descriptive : describe what law is (doctrinal),

explains why the law is as it is (explanatory) and
its consequences.

 They formulate the course or regularities of

nature. e.g. law of gravity, law of nature, law of
economics. Thus, it if for the scientists or
economists to discover.

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(ii) prescriptive/normative : prescribe
how people ought to behave i.e order,
directive, instruction
Normally associated with moral and
political theories.

They do not describe facts, but are

demands or prescriptions that men
shall behave in certain ways.

Also known as legal laws; law of the

nation.
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 Some emphasized law as force and coercion.

 Others regards law as morality;

It is based on ideas of right and wrong,
transformed into legal and illegal.
Therefore they argue law is not law if it
is immoral ( law under Hitler or Stalin or
in the apartheid South African state was
not really law).

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1.1 General Definition of “Law”

 A set of rules enforceable by state which the

parliament, the government, the king, the monarch or
the court has made which everyone has to follow or
otherwise they have to face sanctions or penalty as
consequences of its breach.

 Rule established by authority or custom, regulating the

behaviour of members of a community or;

 the enforceable body of rules that govern any society or;

 one of the rules making up the body of law. (eg Act of

Parliament)
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1.1 Various Propositions and Approaches
Pertaining to Law:

St. Thomas Aquinas (Natural Law

Jurist):
“Law is a rule and measure of acts,
whereby man is induced to act or to
restrain from acting…now the rule and
measure of human acts is the reason,
which is the first principle of human
acts…consequently it follows that;

Law is something pertaining to reason.”

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• St Thomas Aquinas divides law into 4 categories:

• 1) lex aeterna (Eternal law) : law of divine reason, know only to

God. It is considered as God’s law for the governance of universe,
a deliberate act of God and everything, not only man, is subject to
it.

• 2) lex divine (Divine law): law provided in the scriptures and

religious books and said to have descended from God. It directs
human beings to their supernatural end (God).

• 3) lex naturalist (Natural law) : directs them to their goal on earth

as prescribed by God.

• 4) lex humana (Human law) : man-made law also known as

positive law. It governs human beings as members of the
particular communities regardless of their religion.
 John Austin (Positivist):
“Law is a command set by the
sovereign or superior being to
an inferior being, enforced by
sanctions.”

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• Such a command is backed by coercion so that any
person who violates the law would suffer the pain
provided by the law.
• Law without sanction is not law.
• By virtue of the fact of coercive power, the sovereign has
the power to make biding law.
• Categorized law as follow:
– 1) laws properly so called : the divine laws (laws of
god) and human law
– 2) laws improperly so called: laws of fashion, laws of
honor, laws of metaphor etc. Established by mere
opinions.

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 H.L.A Hart (Positivist):
“Law is a system of
rules specifically a
systematic union at the
center of primary and
secondary rules.”

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• Classify law into the following categories:

• 1) Law which imposed obligation:

• The existence of law where certain kinds of human conduct are no
longer optional, but obligatory.
• Moral rules impose obligations and withdraw certain areas of
conduct from the free option of the individual to do as he likes.
• It is known as non-optional obligatory or mandatory, where the
order says ‘Do this whether you wish or not’.

• 2) Laws which do not impose duties or obligations:

• The laws facilitate the individuals and empower them by creating
certain specified procedures, and subject to certain conditions,
structures of rights and duties within the coercive framework of the
law.
• These laws say ‘If you wish to do this, this is the way to do it’.
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 Roscoe Pound (Sociologist):
“Law is an instrument of
social engineering;
to maximize the fulfillment of
interest of the community,
provide smooth running of the
machinery of society.”

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1.1.1 Concept of Law

Several concepts deduced from the definitions:

 system of rules
 command
 sovereign
 enforceable
 regulate society
 administer of justice

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 1.1.2 Pervasiveness of Law
• Law appear in so many guise and disguises.
• Law is very pervasive as it enters into many spheres of our
lives from social, economics, politics to culture and beliefs.
• Law is not only pervasive, but permeating into all stages of our
lives. Law is there before we were born and its still there after
we died.
• Some people might think law as a force and coercion.
• Some might refer law limit upon various forms of behavior.
• Others regard law as morality, it is bases on ideas of right and
wrong, transformed into legal and illegal.
• A politician might regard law as key aspect of society, as a
guide, as a tool as limiting obligation.
• Police officer and judges may see law as the source of their
power as the law authorizes them to do their jobs. 14
1.1.3 Functions of law in the Society:

 Administration of justice
 Maintenance of peace and social
orders
 Settlement of disputes/conflicts
 Social control
 Social engineering
 Determination of legal personality
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• A. Law as an instrument to foster social
order

 Law resolves conflict and provides a rationalized and

conclusive settlement to disputes.
 Law also provides a formalized mechanism for settling
disputes i.e. Court.
 There are also other mechanism for resolving conflicts
e.g. arbitration, mediation, conciliation.

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• B. Law constitutes, regulates and distributive
power
 Power in society is not equally distributed. E.g. courts have
power as its exercise authority and superiority over the
litigants.

 Government officials possess special powers which are

denied to the rest of us e.g. police, army personnel, custom
officers.

 Law provides for succession to power and defines who has

the right to exercise what kind of power in society i.e. in
Federal Constitution

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• C. Law caters social needs
 Law allocates things which people wants and value e.g.
jobs, houses, lands, education etc.

 Law does not simply allocate wealth it also makes certain

form of wealth possible which could not exists without law
e.g. intellectual property.

 Lywellyn introduced a “Law-Jobs Theory” which argued

that every social group has certain basic needs, and that
certain basic rules are therefore necessary in order to cater
for those needs and to ensure the group survives as such.

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• D. Law implement social control

 Law is not merely a means for resolving trouble in society

but it also functions as mechanism for changing and
improving the human’s behavior.
 Law is involved in making deliberate changes in the
standard of behavior existing in society.
 Law has always enforced some morality.
 Formal social controls through law arise when informal
control such as mores, customs or religion are insufficient.
 Formal social control is characterized by systems of
specialized agencies and standard techniques.

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1.2 Different Perspectives of law

1.2.1 Law as Cultural Expression

• This view sees how law was developed in
certain places of certain communities.
• Law is seen as closely linked with the social life of
the people.
• Law develops from habit to value, from custom
and tradition to rules and regulation.
• Savigny (historical jurist):
“Law is an expression of the spirit of the
people”.

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1.2.2 Law as Divine Revelation
• Natural Law jurists believe that all laws are
based on divine revelation or human reason
(man-made laws)
• Law of the nature or moral laws.
• Islam and Christian have their own divine
revelation i.e. the Holy Quran and Bible;
functions as God’s decree to its followers that
must be conformed and followed.

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1.2.3 Law as an Instrument of Government

• In contemporary modern society, the dominant

view of law is that law has become an agency of
power; an instrument of government.

(i) Neutral view : law is seen as something that

stands above political parties, in the sense that
once passed, it ought to command the obedience
and respect from everyone.

(ii) Partisan view (support of a political party) : law is

seen as nothing more than expression of political
party in legal form e.g. Marxism, Communism,
Socialist and Conservative.
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1.2.4 Law as a Legal System

• Parliament, Judiciary, courts, legal profession

etc.

• The existence of a legal system is measured via:

 Laws in that particular society (Statute, Regulation) ;

 Institution for making and amending the laws
(Legislature/Parliament) ;
 Agency that determines the violation of the laws
(Judiciary/Court) ;
 Agency to enforce the law; (Enforcers) and
 Agency to settle disputes between the people
(Judiciary/Court).

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 1.3) WHY DO WE OBEY THE LAW?
•1.3.1 Legal Duty
– Lord Hailsham- there is a duty to obey the law due to prima facie
or presumptive obligation that imposed a duty to obey law
whatever the circumstances.
– Pascal- “there are people in the world who, having renounced all
the laws of God and nature, have themselves made law which they
rigorously obey”.
– John Finnis- writes in his book Natural Law, that “obligation to
obey the law” means either:
• Empirical liability to be subjected to sanction in event of non-
compliance
• Legal obligation in the legal sense in which conformity to law is
socially necessary;
• Legal obligation in the moral sense;
• Moral obligation deriving from some collateral sources (respect of
citizen to authority)
• 1.3.2 Fear of Sanction
• Austin- the fear by which the law, by its coercive power, strikes
in the heart of the people is what makes people obey the law.
• If the element of fear is remove from the law, it would not be
obeyed as there would be no deterrence.

• Hari Chand- fear of sanction is not the sole or even principal

motive for obedience. There are some laws which are not
supported by sanction, yet the law is still obeyed e.g. will
making law, right to vote etc.
• Thus, the need to have sanction arises but not necessarily for
every law.
• He is of the view that an ideal system seems to be that which
requires as little force as possible.
• 1.3.3 Moral Duty
• John Rawls- there is a moral duty to obey the law. However, this
moral obligation is overridden in certain cases by other more
stringent obligations.

• J.W. Harris- moral duty to obey the law is not absolute but merely
prima facie for there could be circumstances such as a clash with
religious beliefs or the law is oppressive, where it could be morally
right to disobey the law.
• He further explains that moral duty to obey the law is due to the
following reasons:
– Obedience of the law as an expression of gratitude to the society and its
law which confer great benefits on the people;
– As an act of promise keeping
– It is in the public interest that the laws established by the society should
be followed
– In return for the state conferring benefits on the individual, it is only fair
that in return it impose obligations.
• 1.3.4 Benefits and Convenience
• James Bryce- law is complicated with by people, amongst other
matters, by sheer indolence. Most people do not want deviate
merely because they find it convenient rather than inconvenient
to obey.

• Rudolf Van Ihering – most people on most occasion act from

self-egoistic assertion. He believes that there can be no
movement of the will without a purpose.
• Man who acts does so, not because of anything, but in order to
attain something. The purpose of human volition is not the act
itself but the satisfaction derived from it. Thus, the debtor pays
his debt in order to free himself from it.

• HLA Hart- obedience of law lies in the idea of some inner

psychological inclination – we obey because we consider it
‘right and proper to do so’.
• 1.3.5 General Habits & Obedience
• Austin- ‘general habit of obedience’.
• He states that most people obey law because of the ‘habit of
obedience’, together with the ever-present threat of sanctions.

• Sociologist- view that people in general are brought up to

obey the law. From an early age the child learns the
importance of parental regulation, where obedience is part of
our daily life and disobedience to the law is something that is
not normal.

• Weber- a sociologist says motive for obedience may range

from fear of disapproval by the environment or could be
traced from habit of obeying.
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