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Published: Fri, 02 Feb 2018
The law is made to govern people
The Law is made to govern people in a society and so these laws ought to be understood and adhered to so as to prevent individuals from acting without thinking of merits or demerits of their actions and prevent impartiality in a society. This is the main purpose of ‘Jurisprudence’, to find these Laws out, study them and make an important distinction between what Law “Is” and what it “Ought” to be. This distinction has led to different theories in Jurisprudence, including theories stressing the procedure(s) for judges and other higher officials to take in other to avoid making impartial judicial decisions and for the purpose of this essay; we will discuss two major theories in Jurisprudence.
‘Natural Law’ theory is a philosophical and legal belief that all humans are governed by basic innate laws or laws of nature, which are separate or distinct from laws which are legislated. The concept of ‘Natural Law’ in its simplest definition is that natural law is an “unwritten law” that is more or less the same for everyone everywhere. To be more exact, natural law is the concept of a body of moral principles that is common to all humankind and, as generally posited, is recognizable by human reason alone. So according to this view, there are different societies with different laws which have been enacted by the higher officials in that society, which is referred to as “Positive law” in this view, but there are certain ‘Core’ laws which can be called the ‘laws of nature’ which must be recognised and obeyed in every society because these ‘Core’ laws give individuals ‘natural rights’ that should be used wherever they find themselves in, and if the “Positive law” of any society tries to go against these ‘laws of nature’ it becomes invalid. This view also suggests that laws are discovered by human reasoning, and it is therefore left for individuals to decide and judge their actions, this according to the Natural lawyer is referred to as “consciences” or “moral notion”. Natural lawyers try to link ‘law’ and ‘morality’ together and make them inseparable, therefore, in other to get a clearer view on ‘Natural law’, we need to understand what the term “morality” means according to this view. Morality and Natural Law are fundamental aspects of Karma; both have been the substantial foundation of our civilization, though both have been in profound question. The criteria of morality have altered radically many times, and presently the compulsions to what is presumed to be culturally or socially “righteous behaviour”. Therefore, we can be reasonably accurate when we propose that morality represents those forms of behaviour which are regarded as “righteous” without being examined. The dictionary says that morality has to do with those activities which are established as illustrating the difference between right and wrong. That is, we inherit our morality. See the cases concerning the ‘Justice in German Constitutional Court Jurisdiction’. There were two major cases concerning the justice in constitutional court jurisdiction in Germany, but for the purpose of this essay the German Border Guards case will be discussed. The event of this case took place in the night of February 14th, 1972. In that case, the defendant and other soldiers were given congratulatory medals for preventing a fugitive from swimming across the border German Democratic Republic (GDR). These soldiers were also given orders to prevent anyone who tried to cross the border at any cost. This case was later brought to the court in 1996. Here, the court was left to decide whether the defendants were to be punished for an act which seemed to be perfectly legal at the time the act was committed. The court however held in 1996 that the defendants could be found guilty of the murder of the fugitive. The Natural lawyers view on this case would be that the acts of the defendants at that point in time where it seemed to be perfectly legal should have not only been declared as ‘illegal’ but also declared ‘immoral’, and not just at the time the court decided to declare the defendants as criminals.
There are different approaches on this view on the guidelines judges should follow when making a judicial decision. The first is the ‘religious approach’. This approach requires the judge to make decisions according what is permitted and FORBIDDEN in that religion.
The second approach is the ‘Circular approach of natural law’. Here, we have an attempt to understand morality by understanding how the behaviour of human beings fits into plan on nature and by doing this the judge has to reflect on “Functions” of parts of nature and society. “Function” in this view means what is the purpose of any given behaviour or any given rule in the society? And if the answer to this question cannot be found then the person act will be inappropriate. This view also tries to understand human nature and rights which any individual should have in any society they find themselves in. This is because if any society violates certain recognised fundamental human right then that society’s law is void. Therefore, this view suggests that for a judge to make any judicial decision, he should find out the fundamental human rights which are recognised in every society.
The final approach on that will be discussed in this essay is the ‘Utilitarian approach”. According to this approach there are certain ‘Core’ values that should not be overridden simply because of good consequence. It suggests that certain things are just right and should be done because of the inner qualities you tend to find in them. Natural lawyers believe and also suggest that courts should always find out the ‘actual law’ in every case brought to them.
‘Legal Positivism’ is a theory that basically got its most important roots lie in the conventionalist political philosophies of Hobbes and Hume, and its first full elaboration is due to Jeremy Bentham (1748-1832) whose account Austin adopted, modified, and popularized. For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law. ‘Legal Positivism’ is a school of Jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies. Legal positivism attempts to define law by firmly affixing its meaning to written decisions made by governmental bodies that are endowed with the legal power to regulate particular areas of society and human conduct. If a principle, rule, regulation, decision, judgment, or other law is recognized by a duly authorized governmental body or official, then it will qualify as law, according to legal positivists. Conversely, if a behavioural norm is enunciated by anyone or anything other than a duly authorized governmental body or official, the norm will not qualify as law in the minds of legal positivists, no matter how many people are in the habit of following the norm or how many people take action to legitimize it. Therefore, we can say that Positivism suggests that individuals should be able to recognize the laws and must not read in their moral preferences to what they want the law(s) to avoid risk, risk such as judges having different ideas or opinions on what the “existing law” is which will eventually lead to impartiality in the society.
Positivist would say that the “existing law(s)’ are derived from previously decided case, statues, constitutions and so on, even though positivist may sometimes agree that law(s) are sometimes made out of one’s good rule of conduct. According to Bentham and Austin, law is a phenomenon of large societies with a sovereign: a determinate person or group who have supreme and absolute de facto power — they are obeyed by all or most others but do not themselves similarly obey anyone else. Positivism is often in contrast with other theories in Jurisprudence such as ‘Natural law’ and ‘The Third Body of Theory’. These theories are suggesting that in identifying the “existing law” morals should be and are brought in to bear. The positivist disagrees with this. The positivist requires us to look at the law as it is and not putting in our meanings to what the law should be. Therefore, the question that should be asked according to the positivist is what does the “existing law” say concerning that particular case? How then do we or how do judges and other officials make the right decision in a case brought according to the positivist?
In other to be able to answer these questions, it would be necessary to analyse the Positivist view on the cases of ‘The Justice in Constitutional Court Jurisdiction in Germany’ above. The positivist totally disagrees with the court’s decision in 1996. We want to be able to change law(s) in ways that will be beneficial to the society but we do not always want to have the worries of someone or a judge coming in much later and declaring acts which were done in the past ‘illegal’ on the ground that those previous acts were inhuman and therefore against the ‘laws of nature’, the law is what it is even though it may be regarded as an “evil” law, therefore it must be obeyed. One major element which is suggested by positivism is that judges, law makers or even individuals have to be able to distinguish between the “existing law” and rules governing the act of making “new laws” but this does not apply to when the law(s) apply to “pre-existing” law(s) in a case that has already been dealt with, as in the German Border guards case above because this will mean turning over the provisions of the ‘Basic law’. By “pre-existing” the positivist means law(s) that were valid in the previous years. “New laws” can be made by officials put can only be done by a leading view on positivism which is H.L.A Hart’s ‘rule of recognition’. This ‘rule of recognition’ suggests that we must, in any legal system have a rule(s) allowing and governing officials on how to filter out certain norms as not part of the law and filter in others that are. In conclusion, we can say that Positivism tries to prevent the judges from making impartial judicial decisions by requiring the judges to acknowledge that the law is a command that has been enacted by higher officials in the society and must be obeyed. Secondly, judges should be able to separate questions about what the “existing law” is from questions about what the law “ought” to be. And thirdly, positivist suggests that if a case is brought before the court and there are no previous case laws on that particular case or any statute on that case, a judge is allowed to make “new laws”, but his method of making this “new law” must be in accordance with the rule in a legal system that allows judges to make these “new law”.
These theories have their advantages and disadvantages, for instance, an advantage of the ‘Natural law’ theory is it requires judges to act ‘human’, put the written laws aside and search their ‘conscience’. These theories have played important roles in our day-to-day functions in our societies and in our courts and are also important in to secure ‘impartiality’ in their special ways. We all want the ‘rule of law’ which emphasizes on equality and fair treatment/judgement to individuals to be efficient and so it would be advisable for both theories to be applied when they are deemed suitable for any situation for progress in our society.
Freeman. M, Lloyd’s Introduction to Jurisprudence (1994), 3rd Edition. London Sweet and Maxwell.
McLeod. I, Legal Theory. 3rd Edition.
Simmonds. N. E, Central Issues in Jurisprudence (2008), 3rd Edition. London Sweet and Maxwell.
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