Question
Gitta is a seasoned politician in Karamoja. He has tried to understand the true definition of the term Law but in vain. He has widely consulted various lawyers and he feels dissatisfied because of the various theories and ideas of this term.
He comes to you as a non-expert, please write a well–researched brief and expert opinion about the above.
APPROACH
- Define Law
- Discuss at least four theories of law
- Name(s) of the Theory of Law
- Scholars and Founders
- Opinions from the School of Jurisprudence/ School of Legal Thought
- Each Theory carries (3 marks)
- Give a Conclusion
ANSWERS
TO: GITTA
The Black’s Law Dictionary defines Law to mean rules and regulations that govern a particular society. Be it family, institution, state, extra.
Different scholars perceive law differently per definition, interpretation, formality, and beliefs.
I highlight for GITTA the following Schools of Legal Thought.
Natural School of Legal Thought
What is the Natural School of Legal Thought?
Naturalists believe that there are laws that are imminent in nature to which enacted laws should correspond as closely as possible.
Other propounders are Plato, Socrates and Aristotle.
According to natural law ethical theory, the moral standards that govern human behaviour are, in some sense, objectively derived from the nature of human beings. They believe that human rights are inherent in nature.
According to the Natural School of Jurisprudence, unjust laws are not true laws. Natural law is believed to be eternal law (unchangeable laws /Divine).
Legal Positivism
What is the Legal Positivism School of Jurisprudence?
The English jurist John Austin (1790-1859) formulated it thus: “The existence of law is one thing; its merit and demerit another.
Whether it be or not is one enquiry. It says that they do not determine whether laws or legal systems exist. They also believe that law emanates from the state.
According to Bentham and Austin's Theory of Law, the Law is a phenomenon of large societies with a sovereign: a determinate person or group who has supreme and absolute de facto power.
No legal Positivist argues that the systemic validity of Law establishes its moral validity. John Austin’s Command Theory of Law
Austin is probably the most rigid of the legal positivists in his insistence on the unlimited and undivided sovereign who commands those in the habit of obeying.
There are three key aspects in Austin’s concept of law: “command of the sovereign backed by sanction"
- Command
- Political sovereign and,
- Sanction.
Under their Separability Thesis, the law has no necessary connection with morality.
The Pure Theory of Law
The idea of a Pure School of Legal thought was propounded by the formidable Austrian jurist and Philosopher Hans Kelsen (1881-1973).
Kelsen's Pure Theory of Law suggests a ‘pure’ theory of law that would avoid reductionism of any kind.
Kelsen firmly believed that if the law is to be considered as a unique Normative practice, Methodological Reductionism should be avoided entirely.
But this approach is not only a matter of method.
Reductionism should be avoided because the law is a unique phenomenon, quite separate from morality and nature.
The Basic Norm, according to Kelsen, is a system of norms. Norms are ‘ought’ statements, prescribing certain modes of conduct.
Unlike moral norms, however, Kelsen maintained that legal norms are created by acts of will.
Marxist School of Law
In the social production of their existence, men inevitably enter into definite relations, which are independent of their will, namely relations of production appropriate to a given stage in the development of their material forces of production.
The totality of these relations constitutes the economic structure of society, the real foundation, on which a legal and political superstructure arises and to which definite forms of social consciousness correspond.
Marxist theories of political economy, expounded upon the notions of Karl Marx (1818-83) and Friedrich Engels (1820-95), consider the law an instrument of class oppression that benefits the ruling class through the oppression of the proletariat.
Marxism believes that rights are simply a bourgeois creation and that justice is something only the rich can achieve in capitalist modes of production
Legal Realism Theory of Law.
Legal realists-are "positivists". They seek to explain the law as it is as opposed to what the law ought to be.
G.W Holmes urges that what we study in books is different from what happens in court. American Realists are Pragmatists and Behaviourists, emphasizing Law in action.
America is far more concerned with courts and their operation. Real Law depends on how Appellate Courts interpret written words and how Trial Courts determine the facts in particular cases.
The separation of law and morals are more. Realists think that the degrees of uncertainty inherent in rules allow Judges to make moral decisions.
Sociological Theory of Law.
The Sociological School of Jurisprudence believes that Law originates from within society.
David Hume and Roscoe Pound are some of the co-founders of this School of Thought.
Law developed gradually in order to capture the distinct sense of righteousness in any given society.
They termed law to be a social engine/living law.
Historical Theory of Law.
Law doesn’t fall from the sky but rather from people and society, they believe that there is no universal law, the law is not static, no lawgiver and that law is inferior to customs as stated by Von Savigny.In a nutshell, since the law doesn’t have a universally accepted definition, different scholars laboured to explain the theories of law in order to help Gitta and others understand the law.
Compiled By: Ssemaganda Sharif - Ssemagandashariff@gmail.com