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What is law?

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THE NATURE OF LAW

The term law is used in many senses:

We may speak of the laws of physics, mathematics,

science or the laws of football or health.

When we speak of the law of a state we use the

term law in a special and strict sense and in that

sense law may be defined as a rule of human

conduct, imposed upon and enforced among, themembers of a given state.

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CONCEPT OF LAWWhat is law?

jthe term law is used in many senses

the layman, law is a general rule ofconduct

jprinciples that govern and regulatehuman behavior

jan expression of societys needs andinterests

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CONCEPT OF LAW

Blacks Law Dictionary:

a body of rules of action orconduct prescribed by thecontrolling authority, and

having legal binding force.

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CONCEPT OF LAW

Oxford English Dictionary:

the body of enacted orcustomary rules recognised bya community as binding.

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CONCEPT OF LAWJohn Austin:a command set by a superior beingto an inferior being and enforced bysanctions (punishments).(The superior being is the State & theinferior being is the individual. The

sanctions are wide & includeimprisonment, fines, damages, etc)

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CONCEPT OF LAW

General definition:a consistent set of universal rulesthat are widely published,generally accepted and usuallyenforced.

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Law of state;

A rule of human conduct, imposed upon

and enforced among, the members of agiven state

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Origin of Law

Wormser in his book The Law stated:

It was a long time before anybody made any law. For

ages mans conduct was governed by nothing more than the

accumulated experience of his forefathers, which hefollowed unconsciously. We call such ways of conduct

folkways and they are distinguishable from customs, which

came into being very late in mans career. Customs were

then followed consciously even though men might have no

idea why a custom had originated or what purpose itserved.

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Origin of Law

Law in a primitive society arose from the needs of the

people.

Certain people live together (tribes, groups or

societies) a certain pattern of behaviour.

Men to satisfy physical, biological, social needs

seek the cooperation of other men living in the

community. Law a result of the cooperation of the people.

The need of men led to the invention of law.

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Origin of law

How the primitive men invented law?

A pattern of behaviour that developed in a community

repeated (activities) over the years became custom

custom hardened into law.

Law or custom or folkways are different labels put

on the same phenomenon but at different stages of

development.

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Origin of law

Folkway a pattern of life; people not conscious ofeven their way of life.

Custom people verbalise their folkways & become

conscious of them. Hence, the importance to observecustom (Let our children perish, not our customs).

Customary rules were written down became codesi.e. laws that we have nowadays an age of

written laws.

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Why need law?

Man is by nature a social animal, desiringcompanionship of his fellows and in primitive times hetended to form tribes, groups or societies either forself reservation or by reason of social instinct.

If society is to continue, some form of social order isnecessary, therefore rules or laws are drown up toensure that members of society may live and work.

the larger the community, the more complex will bethe law.

Hence, law is a mechanism for social control.

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Custom, morality and law

Law is a body of rules; English law was formed out

of the customs of the people and statute; Malaysian

law, was formed out of customs, English/common

law, Muslim law etc

Law is for the guidance of human conduct

Law is imposed; laws as being laid down by some

authority such as a king, dictator or group ofpeople in whom special power is vested; sovereign

body namely Parliament

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Law is for the guidance of human conduct; men

resort to various kinds of rules to guide their lives

Moral rules, ethics and law

e.g It is immoral to tell lies

The law is not concerned with these matters and

leaves them to individuals conscience or moral

choice and the pressure of public opinion No legal action results unless a person tells lies

under oath in court

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Legal Philosophy/Jurisprudence

Latin term juris +prudence i.e. law +wisdom = wisdom of law.

Wisdom = science (of law) Roscoe Pound: Jurisprudence is the science

of law. Using the term law in the judicialsense, as denoting the body of principles

recognised or enforced by public orregular tribunals in the administration ofjustice.

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Legal Philosophy

Lloyd:

Jurisprudence involves the study of

general theoretical questions about thenature of laws & legal systems, about the

relationship of law to justice & morality,

and about the social nature of law.

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Legal Philosophy

Prof Hari Chand:

Jurisprudence is an attempt to study the natureof laws, their techniques, their development &

achievement; it is to trace a law of laws, alaw behind the laws.

Jurisprudence deals with theories or valuebases of law.

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Legal Philosophy

Just as a medical scientist cannot proceed ahead

without the knowledge of physiology, biology, chemistry

etc., a jurist cannot do much without the study of

sociology, history, psychology, anthropology & othersubjects.

Until & unless mankind traced various laws operating in

this universe, progress could not be made. Knowledge

of laws solves riddles & makes things comprehensibleotherwise man would have remained in chaos, utter

confusion & darkness.

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Why study jurisprudence?

In jurisprudence, one has to study something about

law, not a particular law.

It attempts to take a fuller grasp of the

phenomenon of law.

Its approach is more comprehensive, extensive &

intensive & deep-penetrating than the study of

various branches of law like tort, contract, etc.

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Why jurisprudence?...

Jurisprudence offers an overall view of the law, a

unified picture in which the nature of legal

institutions & theories becomes morecomprehensible.

Austin Jurisprudence is a map of the law

which presents it as a system or organic whole.

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Why jurisprudence?...

Jurisprudence is:

an attempt to penetrate into the nature of law, itsfunction & efficacy.

a science which aims at perfecting law to achieve itspurpose in the broader sphere of social justice.

an endeavour to trace a law behind laws so that itbecomes a more serviceable tool in the service of

mankind.

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School of thoughts in Jurisprudence

j Natural lawj Positive law

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Natural Law

Natural law is a law which is founded onnature/law which is in accordance with nature

Natural law plays an important role in the

interpretation of laws Argument based on natural law

Natural law ideas are found in every legal system

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Natural law

Natural law ideas can be found in every legal

system, e.g. principles of natural justice, the

recognition of custom, the concept of public policy,

public morality & social justice.

Natural law is nothing but right reason, reason in

agreement with nature or mans participation in

divine wisdom

Natural law is equivalent to reasonableness

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Natural law

A reasonable man is in unison/harmony with

natural law whereas unreasonable man is at

discordance with natural law

Reasonableness=rightness

The concept of public policy, public morality

and social justice are regarded as deriving

their life from natural law

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In Re D (Minor) [1976] 1 All ER 326

The question was whether the parents of a retardedgirls of 11 years who wanted to have a sterilization

operation performed on their daughter be allowed

to go ahead with the operation. The court decided

that such an operation should not be performed.

Heilbron J, observed; the type of operation

proposed is one which involves the deprivation of a

basic human right, namely the right of a woman toreproduce, and therefore, it would, if performed on

a woman for non therapeutic reasons and without

her consent, be violation of such rights

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Principles of Natural law

Good is to be done & promoted; evil is to beavoided.

Law should be just & fair (moral perspective).

An unjust law is not a law & should not be obeyed. Any man-made law in violation of natural law is not

true law.

Use rational thinking or reason

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Other Names of Natural law

Divine law

Law of reason

Moral law

Unwritten law

Universal law

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Positive Law

Known as analytical positivism or legal positivism.

Positivists studied the law as it was posited, as laid

down and not as it ought to be.

The expression of the will of the law giving authority

(of a supreme authority).

From a political superior to a political inferior which

the inferior habitually obeys. Sanctions imposed if the rule is broken

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Positive Law

Characteristics of the analytical school (according toRoscoe Pound):

Consider developed systems only;

Law is made by legislators/judges; Sanction is necessary;

The typical law is statute;

Their philosophical views are utilitarian;

Not willing to examine the premises or square law withsocial needs.

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Positive Law

Other additional characteristics:

Keep law & moral separated;

Opposed to natural law theories;

Thrives on stable conditions of societies; Emphasise on the formal study of law;

Analysis of legal concept is worth pursuing;

Acknowledge the influence of ethics & morality on the

development of law but separate them for the sake of

the study.

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Islamic Law and Islamic Jurisprudence

Shariah:

command, prohibition, guidance & principles revealed

by God to mankind pertaining to their conduct in thisworld & hereafter.

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Islamic Jurisprudence

Prof. Muhammad Hashim Kamali: Islamic jurisprudence (IJ) exhibits greater

stability and continuity of values, thought andinstitutions when compared to Western

jurisprudencey Custom, rationality, judicial precedent, morality

and religion constitute the basic sources of

Western law, the last two acquire greaterprominence in Islamic law

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The values that must be upheld and defended

by law and society in Islam are not always

validated on rationalists grounds alone

Notwithstanding, the fact that human reason

always played an important role in the

development of islamic law (shariah) through

the medium of ijtihad, the Shariah itself isprimarily founded in divine revealation.

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Islamic Jurisprudence

j Fiqh law itself

j Usul fiqh (science of jurisprudence) the study how

to derive the law (hukum)

j E.g. riba (interest) is prohibited oppression &

disastrous to society.

j Drinking liquor is prohibited lose self control &

disastrous to society as well.

j Cause & effect

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Usul al fiqh or the roots of islamic law, expound theindications and methods by which the rules of fiqhare deduced from their sources.

These indications are found mainly in the Quran andSunnah, which is the principles sources of the islamiclaw.

The Quran and Sunnah themselves however contain

very little by way of methodology but ratherprovide the indications from which the rules ofShariah can be deduced

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Sources of Islamic Law

j Al-Qur`an

j Sunnah/Hadith of the Prophet (s.a.w.)

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Methodology of Usul al-fiqh (Islamic

Jurisprudence)

y The methodolgy of usul alfiqh really refers to

methods of reasoning such as anology (qiyas),

juristic preference (istihsan), presumption of

continuity(istishab) and the rules of interpretationand deduction

y The first source of Islamic law is the Quran; the book

containing the speech of God revealed to the

prophet Muhammad in Arabic and transmitted by

continuous testimony.

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The second source is Sunnah, means a clear path but

it has also been used to imply normative practice, or

an established course of conduct

Ijma or consensus of opinion; is basically a rationalproof, the theory of ijma is also clear on the point

that it is a binding proof. Essential requirements of

Ijma, like unanimity, a plurality of concurrent

opinion

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y Qiyas; measuring or ascertaining the length, weightor quality of something; technically qiyas is theextension of Shariah value from an original case to

a new case, because the latter has the sameeffective cause as the former, the original case isregulated by a given text and qiyas seeks to extendthe same textual ruling to the new case.

y

E.g, Quran explicitly forbids wine drinking becauseof the intoxicating effect, such prohibitions is to beextended by anology to narcotic drugs, ectasy

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y Istihsan or Equity in Islamic law

y Equity is a Western legal concept which is

grounded in the idea of fairness and

conscience and derives legitimacy from a

belief in natural rights or justice beyond

positive law. Both istihsan and equity are

inspired by the principle of equity andconscience.

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y Difference between them, in the overall

reliance of equity on the concept of natural

law, and istihsan on the underlying principles of

the Shariah.

y Still, the value upheld by natural law and the

divine law of Islam are substantially concurrent

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y Maslahah mursalah; considerations of public

interests; unrestricted public interests in the sense of

its not having been regulated by the Law giver as

well as no textual authority can be found on itsvalidity or otherwise

y Considerations which secure a benefit or prevent a

harm but which are simultaneously harmonious with

the objectives of islamic law.

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y Urf, custom that which is known, it is the collective

practice of a large number of people that is

normally denoted by urf

y Conditions of valid urf, amongst others represent acommon and recurrent phenomenan, must not violate

the nass.