Introduction to Legal Theories (LAW034) PDF

INTRODUCTION TO LEGAL THEORIES (LAW034) Chapter 3 THEO RIES OF LAW Madam Namirah Akahsah Hello students! I'm back! I hope you will gain a solid understanding of Chapter 2. Are you excited to learn Chapter 3? Let's get started! LEARNING OUTCOMES The student must be able to: Ex...

INTRODUCTION TO LEGAL THEORIES (LAW034) Chapter 3 THEO RIES OF LAW Madam Namirah Akahsah Hello students! I'm back! I hope you will gain a solid understanding of Chapter 2. Are you excited to learn Chapter 3? Let's get started! LEARNING OUTCOMES The student must be able to: Explain the meaning of theory and legal theory; Describe the basic concept, characteristics, contributions and criticism of three school of thought. Differentiate between naturalist, positivist and sociologist.  WHAT YOU'LL LEARN What is theory? Natural Law Positive Law Sociologist Basic concept Basic concept Basic concept Jurist Opinion Jurist Opinion Jurist Opinion Characteristics Characteristics Characteristics Contributions Contributions Contributions Criticism Criticism Criticism  A general account of things in the DEFINITION world involving elements of description and explanation. OF THEORY Theory claims to express truth – about things in the world. Legal theory is a theory employed to describe what law is; to better understand legal problems.  A lawyer must have knowledge of other subjects like history, sociology, anthropology, economics, & politics and then examine the precepts, ideas DEFINITION and techniques of the law in the lights of his knowledge of the social JULIUS OF THEORY sciences. STONE Jurisprudence signifies knowledge of the law and its application or all about theories & philosophies regarding law. Cicero - Jurisprudence is the philosophical aspect of knowledge of law. THEORIES OF LAW NATURAL LAW POSITIVISM SOCIOLOGICAL NATURAL LAW  CONCEPT OF NATURAL LAW Nature law - law of nature, law as the emanation of the divine providence rooted in the nature and reason of man. Its the nature of every human being to know from his conscience what is right, correct and therefore lawful. So, NL is a rule that can be drawn or inferred from human reasoning or logical thinking. They believe that human laws are defined by morality, and not by an authority figure like a govt/ king. Thus, NL theory recognised law and morality as deeply connected, if not one and the same. The law is not simply what is enacted in statutes, and if legislation is not moral, then it is not law.  NATURAL LAW OVERLAP THESIS LAW MORALITY All forms of natural law theory subscribe to the Overlap Thesis Nature's law is coeval with which affirms that there is mankind and is commanded by necessary relation between the God Himself; it is superior in concepts of law and morality. obligation to any other. It is binding throughout the world, in all countries, and at all times: no The strongest form of Overlap human laws are valid if they Thesis underlies the classical contradict this. naturalism of Aquinas and Blackstone. Sir William Blackstone MAIN PROPONETS (Jurist Opinion) Natural law has the same force everywhere Man possesses insight and does not exist by and this insight reveals people’s contemplation. to him the goodness It is universal and badness of things and makes him know Aristotle the absolute and eternal law. Socrates  MAIN PROPONETS (Jurist Opinion) Claimed that god is the source of natural law, who gives the natural law its validity. Natural Law is The eternal law, seen as the considered as a “higher” law, divine wisdom directing actions meaning that it is superior to any towards goals, requires law created by people. obedience to human law based on reason. Unjust laws are considered not valid. Laws must align with natural law to be Cicero legitimate. Thomas Aquinas 1 Universal -applicable to all people Immutable - cannot be changed by 2 human CHARACTERISTICS 3 Eternal - it does not changed over time 4 Higher Law - superior to any man-made law.  CONTRIBUTIONS POLITICAL PHILOSOPHY Important role in the history of human civilization - the ideas of natural justice, equality, human rights and freedom are derived from it. Natural law has been used to justify revolutions on the ground that the existing law infringed individuals’ natural rights. 1. The American Revolution (1776): The Declaration of Independence, influenced by natural law thinkers like John Locke, argued that British rule EXAMPLES violated the natural rights of the American colonists. 2. The French Revolution (1789): The Declaration of the Rights of Man and of the Citizen was based on natural law principles, asserting that all men have inherent rights to freedom and equality.  CONTRIBUTIONS FIELD OF LAW Natural law has fulfilled many functions - a role in the interpretation of laws EXAMPLES 1. Corbett v Corbett L.R. p.83 OF CASES 2. In Re B (A Minor) 1 W.L.R. 1421 APPLY NL 3. In Re D (Minor) 1 All E.R. 326 CORBETT V CORBETT L.R The judge in this case ordered the marriage to be annulled on the ground that a marriage between a man and a person who had undergone sex change was null and void since it could not involve the natural biologically-determined consequences of marriage. April Ashley (Mrs Corbett) @ male to female trans-sexual (Earliest British people known to have had sex reassignment surgery) IN RE B (A MINOR) 1 W.L.R 1421 The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life expectancy would be 20-30 years. Her parents, having decided that it would be kinder to allow her to die rather than live as a physically and mentally disabled person, refused to consent to the operation. The local authority made the child a ward of court and, when a surgeon decided that the wishes of the parents should be respected, they sought an order authorising the operation to be performed by other named surgeons. The appellate court's decision to authorize surgery was based on the INTEREST of the child. IN RE D (A MINOR) [1976 1 ALL E.R 326 D, age 11, suffered from Sotos syndrome and was mentally retarded. A year earlier, she had reached puberty and her mother and pediatrician sought her sterilization for reproductive. Issue: Whether the sterilization operation be allowed to perform on their daughter? Held : The operation should not be performed, according to the judge, because it involves the deprivation of a fundamental human right, namely the right of a woman to reproduce. Procreation is basic human drive and hence accordance with natural law. THOMAS AQUINAS