Chapter 1: What is law
Martin Golding's view of law
"the word law is used in a variety of context. It could be used to refer to a law (rule of law), or to the laws (laws promulgated by the sovereign). The word law could also be used to refer to a certain kind of legal system"
Pascal's opinion on *legal duty*as a reason why we obey law
"there are people in the world who, having renounced all the laws of God and nature, have themselves made law which they rigorously obey".
Austin's opinion on *General habits & obedience* is the reason why we obey law
'general habit of obedience'. He states that most people obey law because of the 'habit of obedience', together with the ever-present threat of sanctions.
2 different ways about law and law making
(i) Neutral view : law is seen as something that stands above political parties, in the sense that once passed, it ought to command the obedience and respect from everyone. (ii)Partisan view (support of a political party): law is seen as nothing more than expression of political party in legal form e.g. Marxism, Communism, Socialist and Conservative.
Law which imposed obligation
-The existence of law where certain kinds of human conduct are no longer optional, but obligatory. -Eg; criminal law that defining certain kinds of conduct something need to be avoided, irrespective their wishes. -It is known as non-optional obligatory or mandatory, where the order says 'Do this whether you wish or not'.
Law which DO DOT impose duties or obligation
-The laws facilitate the individuals and empower them by creating certain specified procedures, and subject to certain conditions, structures of rights and duties within the coercive framework of the law. -Eg: power to make wills or contracts are rules relating to capacity (adult and sane) / limitation period rule/ rule as to manner and form the power to be exercised. -These laws say 'If you wish to do this, this is the way to do it'.
The 2 law categories John Austin had categorised
1) Law properly so called 2) Law improperly so called
The 4 categories of law that Thomas Aquinas has divided
1) Lex Aeterna (Eternal law) 2)Lex Divina (Divine law) 3) Lex Naturalist (Natural law) 4) Lex Humana (Human law)
Various propositions an approaches pertaining to law
1) St Thomas Acquinas (naturalist) 2)John Austin(positivist) 3)HLA Hart(positivist) 4)Roscoe Pound(sociologist)
Other examples of law as a cultural expression
1)Adat pepatih and adat temenggung eg: Harta sepencarian,Land law etc 2)Chinese and Indian custom eg: Marriage and divorce before the coming into force Law Reform Marriage and Divorce Act 1976 3) Constitutional Law eg: constitutional monarch- YDPA is the Supreme Head of the Federation
Functions of law in society
1)Administration of justice 2)Maintenance of peace and social orders 3)Settlement of disputes/conflicts 4)Social control 5)Social engineering 6)Determination of legal personality
Different perspectives of law
1)Law as cultural expressions 2)law as divine revelation 3)Law as an instruments of governments 4)Law as a legal system
The 2 law categories HLA Hart had classified
1)Law which imposed obligation 2)Law which DO NOT impose duties or obligation
Why do we obey the law?
1)legal duty 2)Fear of sanction 3)Moral duty 4)Benefits and convenience 5)General habits of obedience
Chilsholm and Nettheim views of law
Chilsholm and Nettheim compare law with legal process, which refers primarily to the legislative, and judicial process, the making of acts of parliament and delegated legislation and the adjudication by judges.
John Stuart Mill's opinion on why *Moral duty* is the reason why we obey law
John Stuart Mill support the idea of social contract as part our our moral duty to obey law.
John Austin (positivist)
Law is a command set by the sovereign or superior being to an inferior being, enforced by sanctions.
HLA Hart (positivist)
Law is a system of rules specifically a systematic union at the center of primary and secondary rules. [The Primary rules impose duties on people to behave in certain ways. Secondary rules, by contrast, pertain to the primary rules]
Roscoe Pound (Sociologist)
Law is an instrument of social engineering; to maximize the fulfillment of interest of the community, provide smooth running of the machinery of society.
Marxism-leninism's opinion on law as an instrument of government
Law is used as the only tool of the State to maintain and safeguard the interest of the capitalist class, a dominant group in society.
Pervasiveness of law
No area of activity which is completely free from legal control. Our daily routine indirectly affected by law. • Therefore, law is very pervasive as it enters into many spheres of our life, from economic, politics to culture and beliefs. • Law is not only pervasive, but infusing into all stages of our lives. Law is there before we were born and its still there after we died. • Malcolm Wood provides his view on the pervasiveness of law: "law is proliferating tapestry of tradition, custom, usage, convention, principle, policy, precedent, by law, rule, order, statute, decision, directive, regulation, and treaty. Law's aspects flow inevitably into morality, politics, ideology, history, philosophy, religion and society."
Savigny (historical jurist) opinion on law as a cultural expression
Savigny (historical jurist) believes that legal system was part of the culture of a people and it is the expression of the people - from habit to value, from custom and tradition to rules and regulation.
Definition of law acc to oxford dictionary
The body of enacted or customary rules recognised by community as binding
St. Thomas Aquinas (naturalist)
The nature of law as rule or measure of actions which one is led to perform certain actions and restrained from the performance of others. Rational ordering a things for common good by whoever is charged with the care of community.
Weber's opinion on *General habits & obedience* is the reason why we obey law
a sociologist says motive for obedience may range from fear of disapproval by the environment or could be traced from habit of obeying.
Malcolm Wood's opinion on law as an instrument of government
claims that law is but one a weapon in massive political tool- combination of forces,actions and inactivity. E.g. forces including repression, media manipulation, censorship etc.
Lex Naturalist (Natural law)
directs them to their goal on earth as prescribed by God. It is the same for all men since all are rational and they inclined to act according to reason.
Hari Chand's opinion on why *fear of sanction* is the reason we obey law
fear of sanction is not the sole or even principal motive for obedience. There are some laws which are not supported by sanction, yet the law is still obeyed e.g. will making law, right to vote etc. Thus, the need to have sanction arises but not necessarily for every law. He is of the view that an ideal system seems to be that which requires as little force as possible.
James Bryce's opinion on why *Benefits&Convenience* is why we obey the law
law is complicated with by people, amongst other matters, by sheer indolence. Most people do not want deviate merely because they find it convenient rather than inconvenient to obey.
Chilsholm and Nettheim's opinion on law as legal system
law is equated with government and legal system.
Lex Aeterna (Eternal law)
law of divine reason, know only to God. It is considered as God's law for the governance of universe, a deliberate act of God and everything, not only man, is subject to it.
Lex Divina (Divine law)
law provided in the scriptures and religious books and said to have descended from God. It directs human beings to their supernatural end (God).
Lex Humana (Human law)
man-made law also known as positive law. It governs human beings as members of the particular communities regardless of their religion.*
JW Harris' opinion on why *Moral duty* is the reason why we obey law
moral duty to obey the law is not absolute but merely prima facie for there could be circumstances such as a clash with religious beliefs or the law is oppressive, where it could be morally right to disobey the law.*
Rudolf Van Ihearing's opinion on why *Benefits&Convenience* is why we obey the law
most people on most occasion act from self-egoistic assertion. He believes that there can be no movement of the will without a purpose. • Man who acts does so, not because of anything, but in order to attain something. The purpose of human volition is not the act itself but the satisfaction derived from it. Thus, the debtor pays his debt in order to free himself from it.
Kelsen's opinion on why *fear of sanction* is the reason we obey law
motives for obeying by no means always fear of sanction or of the coercive act being carried out.
HLA Hart's opinion on why *Benefits & Convenience* is why we obey the law
obedience of law lies in the idea of some inner psychological inclination - we obey because we consider it 'right and proper to do so'.
John Finnis' opinion on *legal duty* as a reason why we obey law
provides that "obligation to obey the law" means either: Empirical liability to be subjected to sanction in event of non-compliance Legal obligation in the legal sense in which conformity to law is socially necessary; Legal obligation in the moral sense; Moral obligation deriving from some collateral sources (respect of citizen to authority)
Montesquieu opinion on law as cultural expression
states that the law was the product of custom, local manner and physical environment where a good law must conformed with the spirit of society.
Austin's opinion on why *fear of sanction* is the reason we obey law
the fear by which the law, by its coercive power, strikes in the heart of the people is what makes people obey the law. If the element of fear is remove from the law, it would not be obeyed as there would be no deterrence.
Lord Hailsham's opinion on *legal duty* as a reason why we obey law
there is a duty to obey the law due to prima facie or presumptive obligation that imposed a duty to obey law whatever the circumstances.
John Rawls' opinion on why *Moral duty* is the reason why we obey law
there is a moral duty to obey the law. However, this moral obligation is overridden in certain cases by other more stringent obligations.
Sociologist's opinion on *General habits & obedience* is the reason why we obey law
view that people in general are brought up to obey the law. From an early age the child learns the importance of parental regulation, where obedience is part of our daily life and disobedience to the law is something that is not normal.
General definition of law
~No specific definition on what is LAW-many interpretations of law according to belief,value,custom etc ~Law is a system of rules where it guides and directs our activities in much of day to day life(framework of life) - our life is built upon the foundation of legal rules- govern all aspect of social life ~A set of rules enforceable by state which the parliament, the government,the king,the monarch or the court has made which everyone has to follow or otherwise they have to face sanctions or penalty as consequences of its breach ~ Law as force and coercion ~Others regards law as morality which based on the ideas of right and wrong,transformed into legal and illegal. For example:they argue that law is not law if it is immoral (law under the time of apartheid South African state was not really law).
Law as cultural expression
• Law and people cannot be isolated from each other - since law is connected to social life of the people and developed in certain places and in certain communities. • Law as a result of the slow development of society through centuries.
Law as an instrument of government
• Law is intimately associated with the nature of the State -because law is an expression of the will of the State i.e the government. • Example : law introduced by the government must be abide by the citizens.
Law improperly so called
• Laws of fashions, laws of honor etc. • Established by mere opinions, that is by opinions or sentiments held or felt by indeterminate body of men in regard to human conduct and improperly called as law
Law as a legal system
• Legal system is made of legal institutions (courts, prisons,parliament etc) and includes people who in one way or another make the law as professional life (judges,magistrates, lawyers) • The legal system consist of - Parliament, Judiciary,Executive, legal profession and etc. • The existence of a legal system is measured via: • Statute, Regulation, Act - Laws in that particular society • Parliament (Legislature) - Institution for making and amending the laws • Judiciary (Court) - Agency that determines the violation of the laws / settling disputes between people. • Law Enforcers - Agency to enforce the law
Law as divine revelation
• Natural Law jurists believe that all laws are based on divine revelation or some of the right reason immanent in the nature of thing - Eternal law Aquinas - "....the whole community of the universe is governed by divine reason..." • Law of the nature or moral laws. • Islam and Christian have their own divine revelation i.e. the Holy Quran and Bible; functions as God's decree to its followers that must be conformed and followed.
Law properly so called
• The divine laws and human law • Human law set by men to men are 2 classes : • (1) Set by political superiors. It is positive law and • (2) laws set by men not as political superiors nor pursuance of legal rights. Eg: rules of club.