Jurisprudence 101

Topics: Law, Common law, Natural law Pages: 42 (14234 words) Published: May 26, 2012

What is law?

1. Philosophy of Law

1. Sources of law: What is law and where does it come from?

a) Definition of law:
There is no universally accepted definition of law but several scholars have attempted to define it as follows:

British legal scholar Sir Erskine Holland in his book[1] defines law as general rule of external human action enforced by a sovereign political authority.

In his book “Salmond on Jurisprudence’ Sir John Salmond defined law as the body of principles recognized and applied by the State in the administration of justice. According to Salmond, all law was established for men’s sake”.

J.R Lewis[2], was of the view that law is part of everyone’s life.

In his book “Morality of Law”, Lon Fuller identifies eight principles of validity that the law must meet. They include:- 1) The law must be sufficiently general;

2) The law must be publicly promulgated;

3) The law must not be retrospective in nature but sufficiently prospective;

4) The law must be clear;

5) The law shouldn’t not be contradictory at all;

6) The law should remain sufficiently constant through time

7) The law shouldn’t be impossible to comply with;

8) There should be congruence between laws as pronounced and as applied.

Generally, the law can be described as a system of rules, usually enforced through a set of institutions, which govern and regulate the conduct and standards prescribed by those in Authority for peaceful co-existence of members of a society.

b) Sources of law

Legal scholars have attempted to explain various sources of the law. According to positivists, the only source of law is the rules that have been enacted by a government entity or by a court of law. Positivists insist that law must be confined to the written rules and regulations enacted or recognized by the government. As such, Positivists believe that religion and morality cannot be invoked by judicial officers when deciding cases. According to Sir Salmond, ‘a formal source of the law is that from which a rule of law derives its force and validity from; that is the will of the State as manifested in statutes or decisions of the courts. John Austin and Thomas Hobbes were of the view that the only authority courts should recognize are the commands of the sovereign.

Naturalists on the other hand are of the view that the rules enacted by the government are not the only sources of the law. They maintain that the law must reflect eternal principles of justice, morality, religion, historical practice, human reason and individual conscience that exist independent of governmental recognition. John Locke was of the idea that all people are born with the inalienable right to life, liberty, and property. According to Aristotle, there are two kinds of law, namely; particular and general law. Particular laws being those established by each people in reference to themselves and general laws being those based on nature. Even though they recognize its existence, naturalists are of the view that man made law is inferior to natural law.

Further, history, tradition, and customs form part of the law. According to Justice Holmes, courts were justified in striking down a particular written law if it infringes fundamental principles as they have been understood by the traditions of the people.

According to formalists, law is a science which is derived from artificial reasoning and logic.

According to Professor Ronald Dworkin, law is best explained as a rational and cohesive system of principles that judges must apply with integrity to produce a right answer.

Realists on the other hand belief that law is not a scientific enterprise in which artificial reason or logic can be applied to reach an outcome but rather influenced by political and socio-economic factors. According to Roscoe Pound, the aim of every law should be to enhance the welfare...
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