1.3.

MAJOR THEORIES OF LAW

 There are various theories of law only, 4 of them will be discussed
 What do you think is the importance of theories of law?
1.3.1. Natural Law Theory
 Salmond- the principles of natural justice. If justice means all rightful actions
 It served different purposes in history
1. Romans used it to develop their laws Jus civile and jus gentium
2. Catholic Pope in Europe used it to be dictator during middle age due to the teaching of
Thomas Aquinas.
a. Aquinas, teaches that natural law is: -
i. A God given law and
ii. Pope was the representative of God on earth to equally enforce them on
the subjects and the kings.
 Natural laws can be classified into two
 Manmade laws
o Referred as positive laws
o Mutable/Subject to change (place, time)
o Controls the relations within the society
 Non-manmade laws
o Referred as natural law, law of reason/ rational, eternal law, and principles of
natural justice.
o Immutable/ subject to change (time, place)
o Controls all human beings of the world.
 Challenges against natural law theory: At the late of the Feudalism stage,
 Locke, Montesque and others taught that person is created free, equal and independent by
taking the concept of Natural law as the individual right to life, liberty, and security.
 Similarly, Rousseau’s teachings of individual’s right to equality, life, liberty, and security
were based on natural law.
 Contribution of Natural Law Theory:
 The English Revolution of 1888- what was its purpose?
 The American Declaration of Independence- what was its purpose?
 The French Revolution of 1789 were also results of the Natural law theory.
 Criticism against Natural Law Theory:
 No precise contents of the natural law.
 As a result, John Austin rejected this theory and developed the imperative called positive
law theory.
1.3.2. POSITIVE LAW THEORY
 Definition: law is the command of a sovereign backed by sanctions (it has three elements)
 Also referred as imperative or analysts law theory. It separates “is” from “ought” to be.
 Validity: Austin argued that the moral quality of a law is irrelevant to its legal validity
o Rules made by the sovereign are laws irrespective of any other considerations.
o Kelsen's “Pure Theory of Law, 1934
 Law should be concerned only with the formal structure of legal norms and
not with their moral content.
o Hart, The Concept of Law, 1961
 Formal Criteria for Validity of law is based on a "rule of recognition"
  A legal system consists of primary rules (rules of conduct) and
 Secondary rules (rules about how primary rules are made and
enforced).
 The rule of recognition is a secondary rule that provides the criteria
for identifying valid laws within a legal system
 Mutable: vary from place to place and from time to time.
 Proponents: The followers of this theory include Austin, Bentham and H.L.A Hart.
 Criticism against Positive Law Theory specially by Paton
o Its apparent indifference to injustice.
 Nazi of Germany made laws formally to commit Genocide
 Legal positivist failed to stop such immoral acts
 Lon Fuller argued that law must meet certain moral standards (the morality
of law 1964)
o No legal limitation- Austin’s view that the sovereign authority is incapable
limitation.
 Because no person/body of persons can coerce herself/itself.
 Since constitution limits the power of authority, it is not a law rather it is
principally a matter of “positive morality” (Austin 1977, p. 107).
o It defines law in relation to sovereignty or state because law is older than the state
o Sanction is not the only reason to observe law but also promise of rewards.
o The command of the sovereign is not the only real source of the validity of law.
 Many regards law as valid because it is the expression of natural justice or
the embodiment of the spirit of people
1.3.3. MARXIST LAW THEORY
 Marxists believe that private property is the basis for the coming into existence of law and
state.
o But even there was some rudimentary form of structures in primitive society
 The state is an instrument of class oppression, and laws are created to legitimize and enforce
the ownership of private property.
o This creates a class divide between the bourgeoisie (owners of capital) and the
proletariat (working class).
 There was neither law nor state in primitive society for there was no private property.
 The theory has the assumption that people can attain a perfect equality at the communism
stage in which there would be no private property, no state and no law.
o Practically during USSR this theory failed the theory of private property triumphs.
1.3.4. REALIST THEORY OF LAW
 Emerged in the early 20th century, particularly in the United States.
 Interested in the actual working of the law rather than its traditional definitions.
 It provides that law is what the judge decides in court.
 Rules not put to use to solve practical cases are not laws but merely existing as dead words
and these dead words of law get life only when applied in reality.
 Hence, this theory believes that the lawmaker is the judge and not the legislative body.
 The key proponents of this view include:
 Oliver Wendell Holmes Jr.:

 Often called the "father of Legal Realism," Holmes emphasized that "the life
of the law has not been logic; it has been experience"
  He argued that judges' decisions are influenced by social, economic, and
political factors rather than purely abstract legal principles.
 Karl Llewellyn:
 Llewellyn focused on how law operates in practice, particularly in courts.
 He emphasized the importance of studying the behavior of judges and
lawyers to understand the law.
 Jerome Frank:
 Frank argued that law is uncertain and that judicial decisions are often
based on subjective factors, such as the judge's personal beliefs and biases.
 He famously stated that law is "what the court decides."
 Roscoe Pound:
 Although not a strict Legal Realist, Pound's idea of law as "social
engineering" influenced the movement.
 He emphasized the practical role of law in addressing societal needs.
 Benjamin Cardozo:
 A judge and legal scholar, Cardozo highlighted the role of judges in shaping
the law through their decisions, particularly in cases where the law is unclear.
 This theory has its basis in the common law legal system,
 This theory has been criticized for disregarding civil law legal system.
 The followers of this theory include Justice Oliver Wendell Homes, Lawrence Friedman,
John Chpman Gray, Jerome Frank, Karl N. Lewelln and Yntema.
1.4. FUNCTIONS OF LAW
 Why Do We Need Law?

 No Universal Agreement: Scholars and jurists have differing views on the exact
functions of law, but most agree that law is a means to an end—the end being justice
and societal well-being
 Purpose of Law: To secure social justice and maintain order in society
 Perspectives on the Functions of Law
 Salmond: Law is a body of principles applied by the state to administer
justice.
 Hobbes and Locke: Law preserves and enlarges freedom and liberty, rather
than restricting it.
 Kant: Law adjusts individual freedom to harmonize with the freedom of
others in the community.
 Bentham: Law aims to maximize happiness for the greatest number of
people.
 Holland: Law ensures societal well-being, going beyond just protecting
individual rights.
 Roscoe Pound: Law has four major functions:

1. Maintenance of Law and Order: Ensuring peace and stability in society.

2. Maintaining Status Quo: Preserving existing social structures.
3. Ensuring Maximum Freedom: Protecting individual liberties.
4. Satisfying Basic Needs: Addressing the fundamental requirements of people.
 5. Pound views law as a tool for social engineering.
 Law is not static; it is a dynamic tool used to shape society, resolve
conflicts, and promote the common good.
 laws are designed to balance interests, maintain order, and drive social
progress.

 The Realist View of Law

 Purpose of Law: To pursue the highest good for individuals and the state by acting
as a controlling agency.
 Object of Law: To ensure justice, which can be:
 Distributive Justice: Fair distribution of social benefits and burdens.
 Corrective Justice: Remedying wrongs (e.g., restoring wrongfully taken
property).
 Rule of Law: Essential for fair justice. It ensures:
 Equality before the law.
 Equal protection for everyone.
 Impartial judges.
 Consistent treatment of similar cases.
 Dual Needs of Law

 Conflict in Law: Law balances two needs: uniformity and flexibility

 Uniformity: Provides certainty and predictability (e.g., in contract or property
law).
 Importance of Uniformity:
 Enables individuals to plan activities with certainty.
 Ensures stability and security in society.
 Flexibility: Allows adaptation to changing social conditions.

 Generally, today the following are taken as important functions of law.

A) Social Control:
o Law regulates behavior and promotes socially acceptable norms.

o Roscoe Pound: Law is a specialized form of social control in developed

societies.

o Lawrence M. Freedman:
 Law specifies essential rules and punishes deviant behavior.

 The legal system enforces social control (e.g., police, courts, prisons).

B) Dispute Settlement: Law resolves disputes through courts or alternative

mechanisms (e.g., mediation).
C) Social Change:
o Law acts as an instrument for planned and directed social change.
 o Flexibility in law allows adaptation to new social conditions, preventing
resentment or revolution.

1.5. RELATIONSHIP BETWEEN LAW AND STATE

1. Three Main Theories on the Relationship Between Law and State

 Theory 1: State is Superior to and Creates Law

o John Austin’s View: Law is the command of the sovereign (the state). The
sovereign is above the law, but individuals within the state (e.g., legislators) are
bound by it.
o Example: A king or government enacts laws that citizens must follow, but the
sovereign itself is not subject to those laws.
o Critique: This theory risks justifying authoritarianism, as the state is not bound
by any higher legal or moral principles.
 Theory 2: Law Binds the State
o Natural Law Perspective: The state is bound by ius naturale (natural law),
which exists independently of the state.
o Ihering’s View: Law binds both the ruler and the ruled. The state voluntarily
submits to the laws it creates, making governance more effective.
o Krabbe and Duguit’s View: Law originates from the community’s sense of
right, not the state. The state is merely an instrument to express and enforce this
collective sense of justice.
o Example: A constitution limits the powers of the government, ensuring it acts in
the interest of the people.
 Theory 3: Law and State are the Same:
o Hans Kelsen’s View: The state and law are two sides of the same coin. The state
is the institutional framework that creates and enforces the legal order.
o Example: When we think of rules, we call it "law"; when we think of the
institutions enforcing those rules, we call it the "state."
o Key Point: Kelsen emphasizes that law is more fundamental than the state. A
legal order can exist even without a traditional state (e.g., international law).

2. Key Concepts and Debates

 Sovereignty and Moral Absolutism:

o Some theorists, like Hegel, argue that the state is a supreme moral entity and its
actions are beyond ordinary ethical scrutiny.
o Critique: This view can justify authoritarian regimes (e.g., Nazi Germany, Fascist
Italy), where law is used as a tool for state policy rather than a check on power.
 State as a Juristic Person
o Kantorowicz’s Definition: The state is a legal entity with the authority to impose
its will on a territory and its population.
o Example: A government enacts laws and uses its machinery (e.g., courts, police)
to enforce them.
  Law as an Instrument of the State
o Law is created and enforced by the state to regulate behavior and maintain order.
o Example: Criminal laws deter crime, while civil laws resolve disputes between
individuals.

3. Practical Implications

 Advantages of Defining Law in Terms of the State:

o Provides a clear and simple test for identifying valid laws.
o Helps resolve conflicts between different legal orders (e.g., Church vs. State).
o Explains the validity of law: A law is valid because it is enacted by the sovereign.
 Critiques:
o This definition may exclude non-state legal systems (e.g., tribal or customary
laws).
o It risks equating law with power, ignoring the moral or ethical foundations of law.

4. Key Takeaways

 State-Centric View (Austin): The state creates and is above the law.
 Law-Centric View (Krabbe, Duguit): Law binds the state and originates from the
community’s sense of justice.
 Unified View (Kelsen): Law and the state are the same, with law being the more
fundamental concept.
 Practical Relevance: These theories help us understand the balance of power between
the state and law, and the role of law in ensuring justice and order.

1.6. DIFFERENCE BETWEEN LEGAL NORMS AND NON-LEGAL NORMS

1. What are Norms?

 Definition: A norm is a standard or model accepted by society, voluntarily or
involuntarily, against which behavior is judged.
 Example: Standards determining right or wrong behavior (e.g., honesty is a norm).
2. Legal Norms
 Binding Nature: Legal norms are mandatory and enforceable by the state.
 Sanctions: Violations lead to sanctions (e.g., fines, imprisonment).
 Structure:
1. Premise (Hypothesis): Describes the situation or addressees.
2. Disposition: Specifies the required or prohibited behavior.
3. Sanction: Outlines consequences for non-compliance.
  Example: A law prohibiting theft (disposition) with a penalty of imprisonment
(sanction).
3. Non-Legal Norms
 Non-Binding: These norms (e.g., ethics, customs) are not enforced by the state.
 Sanctions: Violations may lead to social disapproval or ostracism, but not legal penalties.
 Example: Wearing appropriate attire to a formal event is a social norm, not a legal one.
4. Relationship Between Legal and Non-Legal Norms
 Historical Context: Non-legal norms (e.g., tribal customs) existed before states and legal
systems.
 Evolution: Legal norms emerged with the state, gradually replacing or codifying non-
legal norms.
 Interconnection: Legal norms often reflect societal values (non-legal norms), but they
are enforced formally.
5. Difference Between Law and Ethics
 Focus:
o Law: Regulates external conduct and social relationships.
o Ethics: Focuses on internal motives and individual character.
 Enforcement:
o Law: Enforced by the state through sanctions.
o Ethics: Enforced by personal conscience or social pressure.
 Example: A person may act ethically by helping others (internal motive), but the law
only requires them not to harm others (external conduct).
6. Difference Between Law and Positive Morality
 Source:
o Law: Created and enforced by the state.
o Positive Morality: Based on societal customs and enforced by public opinion.
 Precision:
o Law: Expressed in technical and precise language.
o Positive Morality: Often vague and fluid.
  Example: Wearing a suit to a wedding is a moral norm, but driving without a license is a
legal violation.
7. Similarities Between Law and Morality
 Binding Nature: Both impose obligations regardless of individual consent.
 Social Function: Both aim to maintain social order and harmony.
 Overlap: Many legal rules (e.g., prohibition of murder) align with moral principles.
8. Key Takeaways
 Legal Norms: Mandatory, state-enforced, and structured (premise, disposition, sanction).
 Non-Legal Norms: Voluntary, socially enforced, and lack formal sanctions.
 Law vs. Ethics: Law regulates external behavior; ethics focuses on internal motives.
 Law vs. Positive Morality: Law is precise and state-enforced; morality is fluid and
socially enforced.

1.7. Major Legal Systems in the World

1. Introduction to Legal Systems

 Definition: A legal system is a framework of rules, principles, and

institutions used to create, interpret, and enforce laws.

 Purpose: Legal systems simplify the understanding of laws by

grouping them into families or categories.

 Criteria for Classification:

1. Technical Differences: Conceptual structure, sources of law,
and methods of legal reasoning.

2. Social Objectives: The role of law in achieving societal goals

and its place within the social order.

 Example: Legal systems are classified into families like Common

Law and Civil Law based on their historical development, sources,
and methods.

2. Common Law Legal System

 Origin: Developed in England after the Norman Conquest (1066).

 Key Features:
 1. Judge-Made Law: Common law is primarily created by judges
through court decisions (case law).

2. Precedent: Courts follow previous rulings (stare decisis) to

ensure consistency.

3. Focus on Disputes: Common law seeks to resolve specific

disputes rather than create general rules.

4. Procedural Emphasis: Importance is placed on procedures,

evidence, and the administration of justice.

 Examples of Countries: United States, Canada, England, Australia.

3. Civil Law Legal System

 Origin: Rooted in Roman law, particularly the Justinian Code (6th

century AD).

 Key Features:
1. Codified Laws: Civil law is based on comprehensive codes (e.g.,
civil codes, criminal codes) that outline general principles.

2. Legislative Focus: Laws are created by legislatures, not judges.

3. Abstract Rules: Emphasis is on formulating general rules of

conduct for the future.

4. Limited Role of Judges: Judges apply the law rather than

create it.

 Examples of Countries: France, Germany, Italy, Spain, and most of

Europe, Latin America, and parts of Asia and Africa.

4. Comparison Between Common Law and Civil Law

 1. Beginnings:
o Common Law: Emerged in England in 1066, blending Saxon and Norman
customs.

o Civil Law: Originated in ancient Rome, with the Justinian Code as a key
milestone.

 2. Development:
o Common Law: Developed by judges and barristers in courts.
 o Civil Law: Developed by jurists and scholars, later codified by
legislatures.

 3. Spread:
o Common Law: Spread through colonization (e.g., British
Empire).

o Civil Law: Spread through adoption and adaptation (e.g., French

and German codes).

 4. Language:
o Common Law: Primarily English.

o Civil Law: Uses local languages (e.g., French, German, Spanish).

 5. Role of Judges:
o Common Law: Judges create law through rulings.

o Civil Law: Judges apply codified laws; their decisions do not

create precedent.

 6. Legislation:
o Common Law: Laws are often piecemeal and based on case
law.

o Civil Law: Laws are comprehensive and codified.

 7. Precedent:
o Common Law: Binding precedent is a core feature.

o Civil Law: Precedent has no formal authority; each case is

decided based on the code.

 8. Fact-Finding:
o Common Law: Juries often determine facts in trials.

o Civil Law: Professional judges handle fact-finding.

 9. Structure:
o Common Law: Less structured and more pragmatic.

o Civil Law: Highly systematic and organized.

5. Importance of Classifying Legal Systems

  Simplifies Understanding: Grouping laws into families makes it
easier to study and compare legal systems.

 Facilitates Legal Practice: Lawyers trained in one system can better

understand and adapt to another.

 Highlights Cultural and Philosophical Differences: Reflects the

values and priorities of different societies.

Summary

 Common Law: Judge-made, precedent-based, and focused on

resolving disputes.

 Civil Law: Codified, legislature-made, and focused on general rules of

conduct.

 Comparison: Common law is pragmatic and case-based, while civil

law is systematic and code-based.

 Global Influence: Both systems have spread worldwide, shaping legal

practices in various countries.