Jurisprudence – LAW 531 Scope & Natural Law Jurisprudence is the knowledge of law in its various forms and manifestations. Modern jurisprudence is very wide in its range and it trenches in the fields of history, psychology, philosophy, economics and anthropology. It’s the lawyer extraversion. It is the lawyer’s examination of the percepts ideals and techniques of the law in the light derived from present knowledge in disciplines other than law. Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarized by the maxim, an unjust law is not a true law, in which ‘unjust’ is defined as contrary to natural law. Natural law central themes by Curzon: a) Natural law is based on value judgements, which originate from some ‘absolute source’, e.g revealed word by God. Hence, these judgements are in accordance with nature and reason. b) The entire nature of the universe is manifestation of these value judgements. Hence, these judgements are immutable and eternally valid. c) It is only through proper human reasoning that the natural law can be grasped and understood. d) Natural law must overrule all positive laws. In fact, positive law is considered to be law only if it is in conformity with the natural law. e) Law is an essential necessity for man’s life in society. Thomas Acquinas (1225 – 1274) He defines law as ‘an ordinance of reason for the common good made by him who has the care of the community and promulgated’. Law is divisible into four types, which are unified and inter-related. a) Lex Aeterna – This is eternal law, or divine reason, known only to God. This God’s plan for the universe or His ‘rational guidance of created things’. All creatures should obey the law, but man who endowed with free will can afford to disobey. b) Lex Naturalis – It is the result of man’s participation in eternal law and can be discovered by reason,By- farouq amir which are consequences of a man’s exercise of reason to have the basic principle to do good and avoid evil. c) Lex Divina – It is God’s law for mankind as revealed in the scriptures. It is not the same as natural law, but it is not contrary to it. It provides rules as to how a man’s life should be conducted. 1 d) Lex Humana – It is a man-made law, supported by reason. It must conform to natural law, and is Page enacted for common good.
Prof HLA Hart Hart concedes that there is a ‘core of indisputable truth in the doctrines of Natural Law’. To him, law is a social phenomenon, and it cannot be understood without considering the social practices of a community. When he talks of the minimum content of natural law, he means that there are certain rules which are essential, if individuals are to survive and live together in a community. Survival is an aim, a basic human desire or the minimum goal for human law. Hart call these rules as the consequences of ‘human condition’ exhibiting the following characteristics: a) Human vulnerability – to physical attacks. b) Approximate equality – in mental and physical abilities. c) Limited altruism – we are neither devils nor angels. d) Limited resources – our requirements of food, clothes and shelter are limited. e) Limited understanding and strength of will – there is no guarantee that we shall cooperate with others. Hart argues that a certain minimum content of law is a ‘natural necessity’ which specified as follows: 1) Law must have restriction on the free exercise of violence. 2) Laws must be based on mutual forbearance. 3) Laws must regulate the use of property. 4) Laws must provide for the creation of obligation. 5) Laws must provide for sanctions if they are not obeyed. L.L Fuller Fuller was mainly concerned with the conditions sine quibus non for the operation of laws. He believed law ‘is the enterprize of subjecting human conduct to the governance of rules’. Fuller lists 8 qualities of excellence which are necessary for making laws. They comprise the ‘inner morality’ of law and the ‘procedural natural law’.By- farouq amir The 2 aspect of morality : 1) Morality of aspiration – morality of good life. a. External morality – substantive natural law b. Internal morality – procedural natural law 2 Page 2) Morality of duty – basic rules which society cannot run without it.
He shows a necessary connection between law and morality. A rule becomes law only if it has fulfilled some moral criterion. For instance, unjust laws are not laws. He called the coherent legal system which consist of inner morality of law and the procedural natural law as the desiderata and they are as follows: 1) Generality 2) Promulgation 3) Prospectivity 4) Clarity 5) Consistency or avoiding contradiction 6) Possibility of obedience 7) Constancy through time or avoidance of frequent change 8) Congruence between official action and declared rules. A legal system with the above principles, would command obedience with moral justification/fidelity of law. Finnis By the maxim of Lex inisuta non est lex, meaning thereby unjust law are not laws. According to Finnis, unjust laws are not denied the title of ‘law’, but should be dismissed as ‘corruption of law’ or as ‘law to a lesser degree’. Unjust law though valid, are fringe meanings and they don’t bind our conscience. Finnis is not concerned with validity of unjust law but on whether there can be moral duty to comply with unjust law. Disobedience of such laws may consequently erode the legal system which is just on the whole. If unjust law is disobeyed by 1 citizen, other may follow suit and ultimately the law and authority may be discredited. He enumerates 7 ‘basic forms of human flourishing’ (basic goods) as follows: a) Life – self preservation and procreation. b) Knowledge – urge of curiosity, renamed as truth. c) Play – significant characteristic of human beings.By- farouq amir d) Beauty – aesthetic experience. e) Sociability – extending one’s hand in friendship. f) Practical reasonableness – just and well organized society so that a man can achieve the basic goods. g) Religion – relationship between basic goods and the universe. 3 Page
These basic goods are : 1) Objective: this is evident from a survey of anthropological research. 2) Basic: they are basic because all other existing values are subordinated to them. 3) Fundamental: because there is no hierarchy within framework of basic values. They constitute a ‘common good for all human beings’. 4) Pre-moral: because they furnish the ‘evaluative substrum of all moral judgements’. 5) Self-evident: these basic goods are not achieved by reason on facts. They are self-evident to anyone of the age of reason. These are universal goods and are seen as acceptable objects, irrespective of the fact whether or not each individual tries for all them. The ‘basic good’ along with requirements of ‘practical reasonableness’, comprise the ‘principles of natural law’, which are universal and not changeable. They are as follows : a) To form a coherent plan of life. b) To have no arbitrary preferences among values. c) To have no arbitrary preferences among persons. d) To maintain some detachment from one’s project and show some commitment for it. e) To pursue the good actively. f) To respect every basic value and not to choose directly against any human good. g) To seek the good of the community. h) To follow one’s conscience. i) To recognize impartiality among persons. CASES 1. Corbett v Corbett 2. Lawrence & Gerner v State of Texas 3. Ooi Kean Thong v PP 4. DPP v Shaw 5. Madzimbamoto v Lardner Burke 6. Oppenheimer v Cattermore 7. Re SigworthBy- farouq amir 8. Tun Mustapha v Tun Robert 9. Che Omar Che Soh v PP 10. Che Ani Itam case 11. Nallakarupan (1999) case 4 12. Mark Koding (1982) case Page