Introduction to Law I - Theories of Law (Natural) PDF

INTRODUCTION TO LAW I THEORIES OF LAW NATURAL LAW Faculty of Business Management and Professional Studies (FBMP)  NATURE OF LAW LAW = ? Generally means any set of principles All agrees that in relation to law & society = principles that gover...

INTRODUCTION TO LAW I THEORIES OF LAW NATURAL LAW Faculty of Business Management and Professional Studies (FBMP)  NATURE OF LAW LAW = ? Generally means any set of principles All agrees that in relation to law & society = principles that govern human behaviour in a given society However, still there is general disagreement regarding the nature, content and its functions in society  The disagreement would stem from a number of factors: 1. Law plays only one part in the society’s normative system (pattern setting) that regulates & influences human behaviour. (moral & social rules v legal rules) 2. At different time and different cultures, law has taken very diverse forms and has been derived from many distinct sources. (law in primitive/ simple society v law in modern society) 3. writer may view the nature of law and its function quite differently from others, dictated by his own predilections/ opinions. MAJOR VIEWS ON THEORIES OF LAWS 1. Natural Law School 2. Positivist School- positivism theory 3. Sociological School 4. Realist view – realism theory 1. NATURAL LAW THEORY/ VIEWS Latin: lex naturalis Natural law, or the law of nature is determined by nature Refers to the use of reason to analyze human nature and deduce binding rules of moral behaviour The principle of natural law prescribe what proper behaviour for human being is.  Natural law is based on “first principles” :...this is the first precept of the law, that good is to be done and promoted, and evil is to be avoided. All other precepts of the natural law are based on this... Human reason reveals that for determining proper human conduct the first principle of nature is that = “good is to be done and promoted, and evil is to be avoided”. i.e; The desire to live and procreate is basic natural human values, to kill is evil doing and is thus should be avoided.  Arguments: - Positive (written) law = imperfect reflection of natural law - The natural law is understood to be a standard from which to evaluate +ve law -When natural & +ve law do not correspond, +ve law is said to be an “unjust law” Natural law theorists maintain that any man-made law which is in conflict with natural law is not a true law In modern terminology, it can be said that in order for a law to be part of a legal system it should be in confirmity with the current moral principles. Law should be fair & just from a moral perspective.  PRINCIPLES OF NATURAL LAW V CURRENT LAW Contract law- restitution in case of unjust enrichment Administrative law- violation of principles of natural justice, i.e unfair conduct of hearing(rule against bias & hearing both sides) Constitutional law- breach of fundamental human rights Tort- reasonable man test to judge an act of negligence Criminal law- double jeopardy, right to counsel, right of accused during trial, etc Law of evidence- doctrine of estoppel International law on the recognition of human rights- Nuremberg Tribunal established the priciple that certain acts constituted crimes against humanity. E.g; war-crimes, torture, slavery, etc  2 SCHOOLS OF NATURAL LAW 1. THEOLOGICAL SCHOOL (based on RELIGION)– universe consists not only of material substance, but also a moral order created by God 2. SECULAR SCHOOL – rejected God as creator of law, moral law is simply part of human nature and can be discovered through development of reason  NATURAL LAW Begin at Greek and Rome known as Classical Legal Theory 2 stage consisting Classical Naturalism and Naturalist Revival 4 period consisting Classical period, Medieval period, Modern and Revival, Renaissance  CHARACTERISTIC OF NATURAL LAW Universality-only as far as general /primary precepts not with regards to secondary precepts Immutability-unchangeable but secondary precepts may change *primary precepts-self evident,one standard for all *secondary precepts-more detailed,derived from primary precepts  NATURAL LAW THEORISTS Thomas Aquinas Aristotle Cicero CLASSICAL GREEK AND ROMAN LEGAL THEORY i) Classical (Greek and Roman) 6- 12th ii) Medieval (St.Thomas Aquinas) 13-15 C iii). Modern (Grotius, Hobbes, Locke,Rousseau 16- 18 C iv). Revival of Natural Law (Fuller,Finnis) 20th C  CLASSICAL GREEK AND ROMAN LEGAL THEORY Socrates c. 470 – 399 BCE known as the "Father of Western Philosophy“ Socrates was accused of corrupting the youth of Athens and sentenced to death. Man possesses insight and this insight reveals to him the goodness and badness of things and makes him know the absolute and eternal law. lililaw msu “An unexamined life is not worth living” 14  CLASSICAL GREEK AND ROMAN LEGAL THEORY PLATO (C 427- C 347 BCE) - “The Republic”, ”The Laws” - Template for ideal ‘state’ i) founded upon justice ii) all citizens happy “Ultimate justice is discoverable through reason” 15 lililaw msu Ideal ‘philosopher king’ Justice is everyone performing task alotted to him in terms of natural disposition Analogy of ‘cave dwellers’ who see the shadows and believe them to be reality - Each person belong to one of - Natural position and natural 3 social orders (class) role of persons - Men of gold (Rulers) - Men of silver (soldiers) - Men of iron/bronze (industrial/agricultural workers)  ARISTOTLE (384-322 BC) - “Nichomachean Ethics” - Man-parts of nature , endowed with faculty of reason - “man when perfected is the best of animals but if he be isolated from law and justice, is the worst of all” “Universal and immutable standards, discoverable through reason and man-made law should conform to these standards”  Law divided into two : Universal –unwritten, recognised by all men, Conventional-differs from place conformed to law of nature. to place Does not depend on acceptance. Inherent validity. Ideal State-state based on law to enable man to achieve “the good life” MEDIEVAL SCHOLASTICISM St Thomas of Aquinas (1220-1274) Medieval period Rise of Christianity in Europe Influence of Greek and Roman legal philosophy  THOMAS AQUINAS - Saint Thomas Aquinas [ c. 1225 – 7 March 1274] was a a philosopher and theologian in the scholastic tradition, known as “Doctor Angelicus, Doctor Universalis”. - The work for which he is best-known is the Summa Theologica. - One of the thirty-three Doctors of the Church, he is considered by many Catholics to be the Church’s greatest theologian. - The foremost classical proponent of natural theology.  DEFINITION OF LAW “it is nothing else than an ordinance of reason for the common good made by him who has the care of the community and promulgated” Elements : i) reason ii) for the common good iii) by him who has the care of the community iv) promulgated (made public)  DIVISION OF LAW BY THOMAS AQUINAS Aquinas distinguished 4 kinds of law. These are: ETERNAL – divine reason, known only to God. NATURAL – same for all men because it is proper for all men to act according to reason. HUMAN – the law of the human authority derives its authority from natural law. DIVINE – god’s revelation through the scriptures. ST THOMAS DISTINGUISHED BETWEEN 4 DIFFERENT KINDS OF LAW i) Eternal law “the whole community of the universe is governed by divine reason. Thus the rational guidance of created things on the part of God, as the Prince of Universe, has the quality of law…this we can call the eternal law” Indefinable Within God’s knowledge  ii) Divine law that part of eternal law that is revealed to Man through the Christian Scriptures (Old and New Testament)  iii) Natural law “the participation in the eternal law by rational creatures is called the natural law” Natural law an incomplete and imperfect reflection of eternal law” iv) Human law Law made by the State By man for man CICERO Natural law - everlasting, universal and unchanging. There is a higher law which is discoverable by reason and all man-made law ought to conform with this higher law in order to be valid.  Different people may have different ideas about what is good or evil CRITICISMS Natural law views - human law must be in conformity with natural law, and whatever that does not comply with natural law is not law were highly criticized by great number of writers on the ground: – whether something They insist that is law cannot be something is law if it determined with It is binding and is authoritatively reference to the enforceable, though laid down or question, whether it it may be bad law recognized as such is morally fair and within legal system just.