Jurisprudence - What is law

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Introduction to Jurisprudence - by https://www.facebook.com/nurus.sakinatulfikriah.5?fref=ts

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Jurisprudence - What is law

  1. 1. Part B Question 1 The question that has received the most substantive attention from philosophers is – what is law? Several schools of thought have provided rival answers to this question. Firstly, the school of natural 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. Stoicism provided the most complete classical formulation of natural law. The Stoicsargued that the universe is governed by reason, or rational principle; they further argued that all humans have reason within them and can therefore know and obey its law. Because human beings have the faculty of choice (a free will), they will not necessarily obey the law; if they act in accordance with reason, however, they will be "following nature." For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine wisdom") which is knowable by human beings by means of their powers of reason. Human or positive law is the application of natural law to particular social circumstances. Like the Stoics, Aquinas believed that a positive law that violates natural law is not true law. 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.For example, in the case of Che Omar CheSoh v Pp,pertaining the issue of the supremacy of Federal Constitution over religious matter which can only be applied in specified matters listed in the 9th Schedule. This case manifest the contradicting jurisdiction between natural law (God’s law) and the human made-law (Federal Constitution) where in this case, human made law prevails. I did not agree with the decision of the court in this case since it shows that when there are conflicting issues between the law of God which is revealed through religious practices by the believers, it is confined within what is stated in the constitution – the human made law. Like what Antigone had stated in his document, over and above the written law, there were some which were unwritten, no one knew when they were enacted but it lives eternally – none of today or yesterday it is, but live eternal. None can date its birth. The excerpt from Antigone’s document of natural law strongly proposed that above every human made-law, there is the law of God. Secondly, the school of legal positivism. Legal positivism is the view that the law is defined by the social rules or practices that identify certain norms as laws. Historically, the most important legal positivist theory was developed by Jeremy Bentham, whose views were popularized by his
  2. 2. student, John Austin. Austin's version of legal positivism was based on the notion that the law is the command of the sovereign backed by the threat of punishment. This continued with the concept of law brought up by H.L.A. Hart. Jeremy Bentham figured that laws should be socially useful and not merely reflect the status quo; and, that while he believed that men inevitably pursue pleasure and avoid pain, Bentham thought it to be a "sacred truth" that "the greatest happiness of the greatest number is the foundation of morals and legislation." Bentham supposed that the whole of morality could be derived from "enlightened self-interest," and that a person who always acted with a view to his own maximum satisfaction in the long run would always act rightly. For example ISA for some quarters might seem as a unjust law (naturalist) but to Jeremy Bentham perhaps, ISA is actually socially useful as a means of controlling certain subversive movement as well as ensuring the security of the country and not for the government to abuse ISA to ensuring their status quo of power by suppressing any legitimate movement in exercising their individual rights. For example, in the case of Mark Koding v Pp pertaining the issue of a member of parliament who wanted Article 152 to be abolished. The scenario of law cases has constantly in favour of him since the national language is a sensitive issue and shall not be questioned by everyone. However, the point that the people forgotten is the human right given to each citizen – freedom of speech and expression. But I agree with the decision of this case and I uphold the theory of legal positivism that the law should be used to stop sensitive issues from being questioned and thus, causing hatred and chaos among the people. But, to restrict freedom of expression of the people, it shall not be used as a shield for the government to stop any legitimate movement from exercising their right. John Austin figured that law is a command of a political sovereign and is enforceable by sanction. He mentioned three features of law. It is a type of command. It is laid down by a political sovereign. It is enforceable by sanction. When any Bill is passed by the parliament it becomes an Act, which, then, functions as a full-fledged law. The Act is law because it is the command of the parliament (sovereign) It is law because it is properly passed (laid down) by the parliament. Violations of the rules of the Act are met with penalties (sanction). For example ISA which some quarters might see as a unjust law (naturalist) but from John Austin’s ISA is a valid law as it is a command of the government (parliament) to be followed and if not will entitle a person to be punished (sanction). Thirdly is the school or legal realism. Legal realism is the view that the law should be understood as it is practiced in the courts, law offices, and police stations, rather than as it is set forth in statutes or learned treatises. It has become quite common today to identify Justice Oliver
  3. 3. Wendell Holmes, Jr., as the main precursor of American Legal Realism. Realist possesses a belief that the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. Jerome Frank is famously credited with the idea that a judicial decision might be determined by what the judge had for breakfast. They believed in legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests. Fourthly is the school of Utilitarianism. Utilitarianism is the idea that the moral worth of an action is determined solely by its contribution to overall utility. Utilitarianism is described by the phrase "the greatest good for the greatest number of people". Therefore, it is also known as "the greatest happiness principle". The origins of utilitarianism are often traced as far back as the Greek philosopher Epicurus, but, as a specific school of thought, it is generally credited to Jeremy Bentham. Bentham found pain and pleasure to be the only intrinsic values in the world: "nature has placed mankind under the governance of two sovereign masters, pain and pleasure." From this, he derived the rule of utility: the good is whatever brings the greatest happiness to the greatest number of people. For example in the case of EngKeock Cheng v Pp, delegated legislation may to certain extent, under the authority of emergency, violates human right. I agree with the decision of the court in this case since the purpose of restricting human right during the emergency, for example the right to movement, is to ensure the whole of the society to be in a secured situation until the emergency ceased. This is in line with the principle of “greatest happiness’ in the sense that the government is trying to protect majority of the people by denying certain right, only for the benefit of the nation and at the end, it is the people who enjoy “the greatest happiness’ – which would be in the form of security. Lastly, Legalinterpretivism is the view that law is not a set of data or of facts, but what lawyers aim to construct or obtain in their morality laden practice. The debate in recent years concerns interpretivism, a view that is strongly associated with Ronald Dworkin. An interpretivist theory of law holds that legal rights and duties are determined by the best interpretation of the political practices of a particular community. Interpretation, according to Dworkin's law as integrity theory, has two dimensions. To count as an interpretation, the reading of a text must meet the criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct interpretation is the one that puts the political practices of the community in their best light, or makes of them the best that they can be.

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