Argument in Speluncean Explorers case Functions of Law Law and Morality (Hart, Devlin and Mill) Legal Pluralism 2 Legal Pluralism Roscoe Pound's social engineering Thomas Aquinas Natural Law Theory Why Natural Law Declines

1. 1
JURISPRUDENCE
Illustrations of The Functions of Law with Reference to Any Acts/Law
When we talk of the functions of law, the obvious short answer is that law does various
things such as:
a) Regulating contractual relationships.
b) Providing a system of property rights and so on.
Kelsen’s explanation in Pure Theory of Law is particularly useful in observing the functions of
law. According to Kelsen, law is to:
a) Regulate the co-existence of human beings.
b) Bring about mutual behaviour.
c) Induce them to certain positive or negative behaviour.
d) Induce them to certain action or abstention from certain action.
This approach is adopted and developed by Robert S. Summers, an American legal theorist.
According to Summers, the specific functions of law are:
1) Reinforcement of the family.
a) Example in Malaysia: Law Reform (Marriage and Divorce) Act 1976, s 92: Duty to
maintain children.
2) Promotion of human health and healthy environment.
a) Example in Malaysia: Environmental Quality Act 1974, s 22: Restriction on pollution
of the atmosphere.
3) Provision for redress of wrongs.
a) Example in Malaysia: Specific Relief Act 1950, s 11: Cases in which specific
performance is enforceable.

2. 1
JURISPRUDENCE
Devlin, Mill and Hart Regarding Moral and Law
Contents
1.0 Devlin
2.0 Mill
3.0 Hart
1.0 Devlin (Sir Patrick Devlin)
Questions Answers
1. Can society pass judgment on all moral
matters, or can some matters be
properly reserved into the private
sphere?
1. The structure of every society is made
up of politics and morals.
2. If society is entitled to pass judgment, is
it also entitled to use the law as a
means of enforcement?
2. He likens immoral conduct to treason,
on the basis that both threaten the
continued existence of society.
3. If the second question receives an
affirmative answer, is society entitled to
use the law in all cases, or only in
some; and if only in some, how is the
dividing line to be drawn?
3. The problem is to balance public and
private interests. No absolute rule can
be formulated as to how this should be
done, but the general principle is that
‘there must be toleration of the
maximum individual freedom that is
consistent with integrity of society.’
Devlin accepts that the limits of
tolerance will shift from time to time, but
insists that ‘tolerance’ is not the same
thing as ‘approval’, the point apparently
being that it is only appropriate to speak
of tolerating things which are
considered to be wrong. The point at
which tolerance ceases is reached

3. 2
where there is ‘a deliberate judgment
that the practice is injurious to society.’
• Individuals who do not accept the rightness of the common morality must nevertheless
accept the need for that morality.
• The legitimacy of the law’s intervention in matters of individual morality depends on the
‘intolerance, indignation and disgust’ of ordinary people.
• Devlin is confident that ordinary people are capable of differentiating between
disapproving of something and being disgusted by it.
2.0 Mill (John Stuart Mill)
Mill has a classic liberal view of the relationship between law and morality. He formulates the
harm condition through the following statement:
“The only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others. His own good, either physical or
moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forebear
because it will be better for him to do so, because it will make him happier, because in the
opinion of others, to do so would be wise or even right.”
Mill precludes the law from intervening even on paternalistic basis.
3.0 Hart (H.L.A Hart)
Empirical evidence of what our society does about the legal regulation of individual morality
can provide no answer to the question of what ought to be done.
Four Key Points
1) He distinguishes between harm being suffered by one person in the form of being
offended by witnessing other people’s conduct, and harm suffered by one person in the
form of being offended by merely knowing what other people do.
a) Public decency is within the law’s proper scope. Therefore, the law may legitimately
prohibit the conduct which offends others. The latter, being purely private, is outwith
the law’s proper scope.
2) Devlin’s arguments that maintaining moral bonds is essential to preserving society itself.
Hart criticizes how Devlin assumes those who deviate from any part are likely bound to
deviate from the whole; there is no evidence to support that.

4. 3
3) Any society’s morality will change from time to time and it is absurd to say as Devlin
does, that this means one society has ceased to exist and another one has taken its
place.
a) Changing morality may more accurately be compared not with ‘the violent overthrow
of government but to a peaceful constitutional change in its form, consistent not only
with the preservation of a society but with its advance.’
4) Hart accepts that paternalism has a role in legal regulation of morality, provided it is
restricted to activities which cause physical and not merely moral harm to individuals.
a) Hart insists that his limited concession to paternalism does not extend to accepting
that the law may legitimately enforce individual morality for its own sake.

5. 1
Jurisprudence - Legal Pluralism
First generation theories
• There are two major views:
➢ ‘Weak’ view - Law is what the state says it is. Legal plurality occurs when the state
orders different bodies of law for different groups in society.
➢ ‘Strong’ view - Not all law is State administered. Legal pluralism is the co-existence of
multiple legal orders.
 Flaws:
1. Plurality of legal pluralisms.
2. Classifying forms of social control as law is misleading and does not allow for
comparison.
3. Viewing law in functional terms causes theories to be applied too broadly or too
narrowly.
• State law is dominant compared to other normative orders. Hence, it has the ability to
shape other system.
➢ The interrelationships between the legal and the social is perceived through structural
coupling; a method that examines the systems without meshing their boundaries.
 Main disadvantage:
1. Lack of emphasis given to the interplay between systems.
2. Failure to recognize that State law can influence non-state systems, which can
concurrently influence State law in a dialectic fashion.
3. The focus on one-way influence rather than mutual influence did not accurately
reflect reality.
Second generation theories
• Teubner
➢ Legal pluralism is a diverse communicative process that observe social action under the
binary code of legal or illegal. It distinguishes law from non-law.
➢ Flaws:
 Function of law becomes purely what the individual perceives it to be.
• Tamanaha
➢ Any group within the social field that could have their actions constitute law. The minimum
threshold to quality ‘group’ is sufficient people with sufficient conviction to consider
something to be law and act pursuant to the belief.
 Flaws:
• Whether the person’s intentions or actions define the individual consideration.
• Overemphasize the role of state in constituting and defining legal orders.
• Mutual and constitutive relation between normative orders.
➢ The state law restructure normative orders through symbols and director coercion. At the
same time, non-state normative orders resisted penetration and used the symbolic capital
of state law.
• Postmodern theories
➢ Fitzpatrick: Plural normative orders participate in the same social field and meshed
together.
 Integral plurality: Both state and non-State semiautonomous social fields are
constituted by their interrelations with one another.
➢ Henry: Normative orders interact with each other in dialectic fashion. Both are vulnerable
to incremental reformulations.
Identification of Different Spheres in Malaysia
• Plural legal system stems from its plural ethnic and religious society.
• Official law
➢ There are laws that differ according to which ethnic group one belongs.

6. 2
 Art. 153 FC applies the principle of affirmative action to the bumiputra. The practical effect
has been to privilege the Malay population at the expense of other ethnic groups such as
Chinese and Indians.
➢ Different law for different religious groups.
 The FC provides for shariah law to apply to Muslims in certain civil law areas, as stated in
Che Omar bin Che Soh v PP.
 Art. 73-75 FC allocates power to States to legislate for shariah laws across State
legislation. For instance, hudud legislation has been passed in certain States such as
Kelantan.
➢ Different law for different ethnic or religious groups based on geographical location.
 Federal Acts apply differently to Sabah and Sarawak matters such as immigration, land
and natural resource management.
 In Peninsular Malaysia, the National Land Code governs laws relating to land whereas in
Sabah and Sarawak, the main legislation is the Sabah Land Ordinance and Sarawak
Land Code respectively.
➢ Application:
 First generation theories
• The first-generation theories would encompass everything mentioned above as ‘law’,
but they would not be able to distinguish between types of law, the legislation and
judicial decisions.
• The first-generation theories would view State law mentioned above as having a
specified function as compared to customary law and normative regulation.
 Second generation theory
• Able to make distinctions but his emphasis on State law does not give adequate
attention to non-State law. Problematic because non-State law often exerts influence
over State law.
• Customary law
 Customary law is another source of pluralism between citizens based on ethnicity.
 Malaysia has customary law in relation to the Chinese, Peninsular Malaysians and
natives on the island of Borneo.
 Malacca and Penang recognize Chinese law through common law principles in court
such as private international law principles or natural justice.
 Customary law of Malaysians has been recognized in Peninsular Malaysia with adat
perpatih applying in Negeri Sembilan.
 It is crucial to note that the above references to customary law are State accepted
versions of customary law.
➢ Application:
 First generation theories
• First generation theories identify the above as law but they cannot make subtle
distinctions such as distinguishing customary law from ‘true’ adat or distinguishing
customary law from State law.
 Second generation theories
• Although Tamanaha’s theory can make the distinctions, Tamanaha’s emphasis on
State law may prevent a deeper analysis of non-State normative orders such as true
adat which plays significant role for the Chinese and Peninsular Malaysians.
• Normative regulation
➢ Normative regulation is another source of pluralism based on religion or ethnicity.
➢ Differentiation by geographical location
 An example can be seen in shariah law that is implemented outside the terms of what is
prescribed in State legislation. The State Legislature of Kelantan ratified the Kelantan
Hudud Bill although it cannot be officially implemented without the Federal Government
making constitutional changes as the Bill exceeds the Kelantan’s Parliament’s jurisdiction.
➢ Differentiation by personal interpretation
 Differs by individuals.

7. 3
 Personal values of the chiefs, and State officials exert an influence on how adat is
enforced.
➢ Application:
 First generation theory
• Can identify normative regulation as law, but cannot distinguish this type of law from
customary la and State law, rather categorizing all the above as law.
 Tamanaha’s second generation theory
• Able to make these distinctions although it is unable to make more subtle distinctions.
• The large role of individuals in implementing shariah law or adat means their
behaviour and intentions may be incongruent thus making it difficult to determine
what they consider ‘law’.
• Tamanaha does not emphasize non-State normative orders adequately, which is
problematic as normative regulation is a non-State entity.
Recommended Solution
• Conceptualizing ‘law’ as a spectrum considers the reality that in any society, different types of
‘laws’ can exist and allows law to be captured in its many different states as a constantly evolving
and changing social practice.
• Further, what is law depends on the situation, the individuals involved and the culture in question.
• A definition of law is needed which accounts for all this.
• Perceiving law as a spectrum allows for these factors to be considered and for the variable
(whether its positivist vs. naturalist, formalism vs. legal realism or State vs. non State) to be
altered based on the situation.

8. Name: Nur Aliah bt Amran
Matrics No: A166840
Date: 18.12.2019
1
UJIAN JURISPRUDEN
Soalan
Tamanaha menyatakan di muka surat 397 mengenai enam(6) susunan sistem normatif
yang terdapat dalam pluralism perundangan (legal pluralism). Beliau juga menyebutkan
mengenai pertelingkahan yang boleh berlaku diantara sistem normatif tersebut di muka
surat 400. Berdasarkan pemerhatian kepada kejadian-kejadian di negara ini, pilih salah
satu kejadian dan jelaskan bagaimana inanya berlaku. Adakah strategi penyelesaian
yang ditawarkan di muka surat 403 Bahagian E boleh digunakan.
(10 markah)
Jawapan
Legal pluralism is everywhere. For instance, many societies have more than one forms
of law, like indigenous law, religious law, or law connected to distinct ethnic or cultural groups
within a society. It is problematic when conflict arises between those forms of law. An example
of conflict is the conflict between international law and municipal law in Malaysia. The solution
as put forward by Tamanaha is the absorption or incorporation, which is also practiced in
Malaysia.
Before furthering into that, it is helpful to know the systems of normative ordering in
social arenas. The ones that will be useful in this answer would be knowing what official legal
system is. In accordance to page 397 of Tamanaha, official legal system is the law that is
manifested in legislatures, enforcement agencies, tribunals and give rise to powers, rights,
agreements, criminal sanctions and remedies. For example, there is a conflict between the
international law and municipal law. The difference between international law and municipal
law is the different nature of inter-state and intra-state relations, including the different legal
structure employed on the and hand by the state and on the other hand as between states.
The question is to know which one prevails when conflict occurs.
In reference to page 400, the said conflict is commonly fuelled by from two different
sources. The one relevant in example used it where groups drive conflict by strategic resort in
an effort to advance their individual or collective goals. Those who benefit from international
law would resort that international law is dominant, while those who benefit from municipal law
would resort to municipal law. For instance, a vessel may be prosecuted in domestic terms to
be in territorial waters but in international law it is said to be part of high seas. The one
prosecuted would possibly resort to international law to avoid the persecution.
The issue in Malaysia is whether international law or Malaysian municipal law would
prevail? In the case of PP v Wah Ah Jee it has been stated that,
“The Courts here must take the law as they find it expressed in the Enactments. It is
not the duty of a Judge or Magistrate to consider whether the law so set forth is contrary
to international law or not.”
Meanwhile, in the case of, Mortensen v Peters it was stated that,

9. Name: Nur Aliah bt Amran
Matrics No: A166840
Date: 18.12.2019
2
“In this court we have nothing to do with the question of whether the legislature has or
has not done what foreign powers may consider a usurpation in a question with them.
Neither are we a tribunal sitting to decide whether an Act of the Legislature is ultra
vires as in contravention of generally acknowledged principles of international law. For
us an Act of Parliament duly passed by Lords and Commons and assented to by the
King, is supreme, and we are bound to give effect to its terms.”
The illustration above asserts that Malaysia holds municipal law as to prevail when in
conflict with international law. This method is similar to a method by Tamanaha in page 403,
where it is done by absorbing the competing systems in some way and incorporate the laws.
This method is also very similar to the theory of international law, dualism or pluralism where
municipal law and international law exist separately and cannot claim to have effect on or
overrule the other. This is considered by the positivists such as Triepel and Strupp. The
rationale is for the supremacy of state where since municipal law permits the exercise of
international law rules on toleration rather than any influence maintained by international law
within the internal sphere, municipal law is dominant in this sense.
This dualism or pluralism theory is also known as the doctrine of transformation and it
is the positivist-dualist’s position. The incorporation or absorbing of competing systems is done
through transformation of international law to have effect within domestic jurisdiction through
appropriate constitutional machinery such as the act of parliament. In other words, in this
theory or doctrine, international law is applied through the parliament.
The practice in Malaysia is the doctrine of transformation or the theory of dualism.
Examples of states made by our parliament to give legal effect to treaties are the Geneva
Conventions Act 1962, as revised in 1993, to give legal effect to the Four Geneva Conventions
for the Protection of the Victims of War of 1949; and The Diplomatic Privileges (Vienna
Convention) Act 1966, as amended in 1999, to give legal effect to the Vienna Convention on
Diplomatic Relations 1961. These acts have been applied in Malaysia in the case of, PP v
Orhan Olmez. In this case, the legal question of ‘whether or not the act of sending State
allowing the diplomatic agent to give evidence solely for authentication of the legal documents
constitutes a waiver of immunity from jurisdiction’ was brought to the Supreme Court of
Malaysia. Applying Article 32 of the Vienna Convention on the Diplomatic Relations 1961,
which has been transformed into Malaysian law by means of the Diplomatic Privileges (Vienna
Convention) Act 196615, the Court held that: a waiver under the Vienna Convention must
always be express. The restrictive language in the first diplomatic communication is clear and
it cannot be construed as anything like a waiver of immunity.
In conclusion, Malaysia also has the issue that is the conflict between international law
and municipal law. However, we reconcile the two competing laws through doctrine of
transformation, that is to absorb or incorporate them through parliament. Therefore, Malaysia
is a dualist state. To achieve this method, cooperation between the three organs, that are the
judiciary, executive and legislative, is necessary. The executive holds a pivotal role as
international treaties and conventions can only be applied through statutes to achieve the
balance in legal pluralism in Malaysia.

10. 1
Jurisprudence - Roscoe Pound’s Social Engineering
Introduction
Pound is an American legal scholar revolving around sociological jurisprudence. Sociological
jurisprudence according to Pound, should ensure that the making, interpretation and application of
laws take account of social facts.
Functional Aspect of Law
Pound emphasizes on the functional aspect of law. To him, law is an instrumentality of social
engineering. It is through law that different interests are sought to be balanced.
Social Engineering
When the demand, desire, expectations of the individual interest, social interest and public interest
are competing and conflicting in nature, the balancing instrument used with the force of the state to
harmonize and reconcile these interests prevailing in the society is known as social engineering.
The task of social engineering
It’s the lawyer’s task. The courts, legislators, administrators, and jurists must work with a plan and
make an effort to achieve it.
Social Engineering
• Pound likened the task of a lawyer to an engineer.
• The purpose of social engineering is to construct as efficient a society as possible, one which
ensures the satisfaction of the maximum of interests with minimal friction (tension and
disagreements) and wastage of resources.
• Social engineering involves balancing of the competing interests. It is a process of social
ordering. The whole process of social engineering is to be guided by a plan.
Types of Interest
1. Individual
2. Public
3. Social
Pound defines an ‘interest’ as a demand, desire or an expectation which human beings either singly
or in a group seek to achieve.
Individual Interest
1. Personality: It includes the interests of physical integrity (no physical harm to person),
reputation, dignity, privacy, freedom of conscience etc.
2. Domestic Relations: It includes the interests of parents, children, husband, wife.
3. Interest of Substance: It includes the interests of property, succession, freedom of industry
and contract, freedom of association, continuity of employment etc.
Public Interest
1. Interest in the preservation of the State
2. State as a guardian of social interests such as administration of charitable trusts, protection
of natural environment etc. This category seems to overlap with the next major category.

11. 2
Social Interest Do from Paranjape book
Pound accepted that such interests cannot be classified into watertight compartments and that they
are overlapping. These interests are secured through the device of legal persons and attribution of
claims, duties, liberties, powers, and immunities. There is also a remedial machinery behind them
which aims sometimes at punishment, sometimes at redress and sometimes at prevention.
Pound argued that Interests could only be balanced if they are placed on the same plane. Thus,
social interests can only be weighed against social interests and individual interests can only be
weighed against individual interests. . In the words of Pound, “If we put one as an individual interest
and the other as a social interest, we may decide the question in advance in our way of putting it.”
In other words, when we frame the conflict in terms of individual versus society, social interest will
always triumph over individual interest due to the natural biases of the legal system. Pound
regarded social and individual interests as mutually translatable. This is because society has an
interest in promotion of individual interests and individuals have an interest in promotion of social
goals.
For example, the freedom of person might be regarded as an individual interest but it is translatable
as an interest of the society that its members should be free. Also, the interest of individuals in
domestic relationships is translatable to the interest of society in institutions such as family and
marriage.
Jural Postulates
In order to evaluate the conflicting interests in due order of priority, Pound suggested certain
assumptions of a civilized society, which he called as ‘jural postulates. These are to be applied by
both legislature and judiciary in harmonizing various interests. Pound has mentioned 5 jural
postulates as follows: In a civilized society, men must be able to assume that:
I. Others will not commit intentional aggression against them. Example: assault, battery, murder.
II. They can use and control things that they have discovered, produced or legitimately acquired.
Example: agricultural land, patents, copyrights.
III. Those with whom they deal as a member of the society will act in good faith. Example: keeping
promises, quasi-contract, unjust enrichment principle.
IV. Others will act with due care and will not cast unreasonable risk of injury upon others. Example:
Negligence.
V. Others will keep things within their boundary and should look after those things so that their
escape should not harm others. Example: Strict Liability
Later, Pound added 3 new postulates:
VI. A person will have security as a job holder. Example: labor law, contract of employment
VII. Society will bear the burden of supporting a person when he becomes aged. Example:
concessions in railway tickets
VIII. The society will bear the risk of unforeseen misfortunes such as disablement. Example: quota
for physically disabled persons in education.

12. 3
The jural postulates are not absolute. They are of a changing nature. They may be revised from time
to time. New postulates may emerge with societal progress. These assumptions may also vary from
one legal system to another. Pound had formulated these postulates especially in context of the
American Legal System.
Criticism of Pound’s Theory
• The division of public and social interests is criticized on the ground that in fact they are all
social interests.
• What do waste and friction mean in relation to conflict of interest: not explained
• With laws, there can be no detailed plans as the society keeps changing constantly.
• Dias says that interests should not be merely weighed against each other. There should be
some ideal which serves as a yardstick to measure the interests. I do not agree with this view
of Dias. Pound has in fact provided certain yardsticks in the form of jural postulates.
• Use of the term ‘engineering’ is criticized on the ground that it equates society to a factory
like mechanism. Society is dynamic whereas a factory is static. Pound’s emphasis on
‘engineering’ ignores the fact that law evolves and develops in the society according to social
needs and wants. I do not agree with this criticism because Pound, in holding that interest
cannot be put into water tight compartments and in keeping the jural postulates flexible,
has in fact made the best efforts to ensure that law meets needs of different societies at
different times. I feel that, with ‘engineering’, Pound meant rational planning and its
execution. Indeed, it is necessary that laws should be made with such approach. That is why,
there are so many debates before passing of a Bill, for example, the Surrogacy Bill.
My Own Conclusion
• The idea of social engineering indicates that Pound saw development of law as a result of
conscious efforts and not as a spontaneous mechanism, just like Ihering.
• Just like Ihering, Pound also classified interests but unlike Ihering, it seems he did not give
primacy to social interest over individual interest.
• I agree with Pound that interests should be placed on the same plane for the purpose of
balancing, otherwise it would be like comparing apples to oranges.
• He has listed out different interest and has pointed out how they should be secured and
how they should be balanced.

13. Jurisprudence - Thomas Aquinas’ Theory of Natural Law
Thomas Aquinas was one of the Christian philosophers during the Middle Ages. His theory of
Natural Law is outlined in Summa Theologiae, the first detailed discussion of Natural Law
theory. For Aquinas, law was ‘nothing else than an ordinance of reason for the common
good, promulgated by him who has care of the community’. Aquinas elaborated on the
concept of Human Law by reference to his understanding of Eternal Law, Natural Law and
Divine Law.
For Aquinas, Eternal Law was the divine and rational model according to which God created
the world; this model provided the foundation for Aquinas’ three other types of law.
Aquinas opined that the world is ruled by Divine Providence or ‘divine reason’. Divine
reason is called ‘eternal’ because it is not temporal. The Eternal Law is not ordained to an
end; that end is ‘God Himself’.
The Divine Law is derived from God and guides man to perform acts in order to reach his or
her end, which is ‘eternal happiness’. Divine Law consists of the Scriptures, which reveal
elements of the Eternal Law to man. Aquinas argued that man’s natural inclination is
towards virtue or goodness, and that by acting according to reason, man acts in accordance
with virtue. Aquinas wrote that man’s ‘good’ tendencies are to preserve human life, to have
children, to live in society, and to know God. For Aquinas, the purpose of law was to
promote the ‘common good’, which leads to the ‘perfect community’.
On the other hand, Natural Law is the process whereby man, as a rational being,
participates in the Eternal Law. Aquinas argued that Natural Law is called ‘law’ only because
of man’s participation. Whilst irrational beings are subject to the Eternal Law, they cannot
participate in a rational manner.
Human Law emerges when a public person entrusted with ‘care of the community’ exercises
human reason in order interpret the Eternal Law and create laws. A private person cannot
make laws because he or she does not have coercive power, or the power to ‘inflict
penalties. A Human Law creates a moral obligation if it has been promulgated to men by the
law-maker, and if it is just or consistent with ‘divine’ reason (ie promotes the common good,
does not exceed law-maker’s authority and does not impose a disproportionate burden on
individuals). Aquinas acknowledged manmade laws may be morally fallible and therefore
unjust.
On account of his comments, Aquinas has been said to endorse the maxim lex injusta non
est lex, which suggests that an unjust law lacks legal validity. However, Aquinas accepted
that even an unjust law should be followed if disobedience leads to ‘scandal or greater
harm’. Aquinas merely stated that an unjust law does not ‘bind in conscience’; he did not
propose that every unjust law lacks legal validity. In practice, man is required to make a
moral judgement as to whether he should obey an unjust law. Aquinas appeared most
concerned with the ‘common good’ of the community, rather than with the validity of the
law. On this basis, some authors argue Aquinas never endorsed a literal interpretation of
the maxim lex injusta non est lex, but merely observed that an unjust law is not a full-
fledged law.

14. Juris - Decline of Natural Law
David Hume/Hume’s law
• We cannot objectively know what is right or wrong through moral reasoning.
• Law must be regarded as separate from morals.
Jeremy Bentham
• Natural law is a formidable non-entity.
• Natural law reasoning is a labyrinth of confusion based on moral prejudices.
• Bentham is disturbed by mysticism and complexity that surrounded the law of the British
Common Law system.
• Bentham sought to reform the system, as he disapproved any appeal to law of nature which
is a private opinion in disguise.
John Austin
• Law is separate from what the law should be.
• He pioneered the analytical form of jurisprudence purporting the presentation of legal
systems as structures of laws properly so-called, without regards to their moral quality.
• The ideas of Bentham and Austin spread widely throughout the nineteenth century and
indeed natural law theory could scarcely be found anywhere outside the Catholic circles.

15. Jurisprudence
Speluncean Explorers Case: Argument That Convicts And Argument That Acquits
Argument that convicts
Keen, J
The question of right or wrong is irrelevant as for a judge I am only concerned with the law of
the land. Therefore, the issue is whether what the defendants did fell within the meaning of
the criminal code for murder, that is whoever shall willfully take the life of another shall be
punished by death. The importance part here is to wilfully take the life, which the obvious
answer is they have.
Argument that acquits
Foster, J
I declare the defendants to be innocent of any crime. I rest this conclusion on two
independent grounds.
The first ground rests on the inapplicability of positive law to this case, and that the case is
governed instead by the law of nature. The positive law is for the coexistence of society.
When a situation arises which coexistence becomes impossible, then the condition
underlying the position law ceases to exist. In other words, when the condition disappears,
the force of our positive law also disappears with it. I believe the maxim cessante ratione
legis, cessat et ipsa lex is applied here.
To illustrate further, it is trite law that the applicability of positive law does not go beyond its
territorial limits. In comparison, since the defendants were remote from the coexistence,
separated from the courts, they were not in a state of civil society but that of a state of
nature. The positive law that were made for Commonwealth were not appropriate to their
condition. Therefore, I have no hesitancy in saying under those principles they were guiltless
of any crime.
My second ground rejects hypothetically all the premises which I have so far proceeded.
Assuming that the positive law does apply to them, then the statute was never meant to be
read literally. It was to be read by its purpose. In the case of Commonwealth v. Stayore, the
defendant was convicted for leaving his car parked in an area. The defendant tried to
remove the car but was prevented due to streets being obstructed by political demostration.

16. Jurisprudence
His conviction was set aside by the court, although his case fell squarely within the wording
of the statute. In Fehler v. Neegas, there was a mistake in legislation where the word “not”
has not been placed. The court refused to accept the literal interpretation and enforced as if
the statute had the word “not” where it was supposed to be.
In addition, there is also the exception of self-defense for murder when initially the state was
not intended to apply to cases of self-defense. When this is explained, it becomes apparent
that the reasoning is applicable to the case at bar. If in the future any group of men every
find themmselves in the tragic situation of these defendants, we may be sure that their
decision whether to live or die will not be controlled by the contents of our criminal code.
Accordingly, if we read this state intelligently it is apparent that it does not apply to this case.
The withdrawal of this situation from the effect of the statute is justified by precisely the
samem considerations that were applied in the case of self-defense.
I therefore conclude that the defendants are innocent of the crime and that the conviction
should be set aside.