Muhammad Nizam Awang@Ali

Faculty of Syariah & Law

Islamic Science University of Malaysia

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 What is ‘legal philosophy’?
 Why we need to understand about ‘what is law’?

 Natural law
 Legal positivism
 Sociological view
 American realism
 Islamic law

 Function of law
 Classification of law
 Legal terminologies & legal maxims

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 It is a marriage between philosophy
(jurisprudence) and law
 What is ‘jurisprudence’?
 What is ‘law’?
 What is ‘legal system’?

 Legal philosophy studies about law

and legal system

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 Law is defined differently by different people in different
existing legal systems in different communities/ societies

 What say you:

 Should we have one-fits-all definition or many definitions about
‘what is law’?
 If yes/no, why?

 Do we need a general guide of defining what is good or bad law?

 If yes/ no, why?

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 What is ‘natural law’ ? - law which is founded on
nature
 What is ‘nature’? - what exists & how man ought
to behave
 The basis of natural law:
 Law is ‘what is ought to be’
 Content of law set by nature
 The nature refers to nature of human beings
and the world
 It holds validity everywhere.
 Closely ties with objective, external existence

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The Art of Rhetoric:

Aside from the particular laws that each

people has set up for itself, there is
‘common law’ that is according to nature.

He also noted that natural justice is a

species of political justice that would be
established under the best political
community

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Law is closely associated with
justice and ethics. Law may
become embodiment of correct
reasoning if it uses reason and
apply ‘insight’ into the nature of
conduct.’

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‘Every human law has just so
much of natural law as its
derived from the law of nature.
But if in any point it deflects
from the law of nature, it is no
longer a law but a perversion of
law.

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 A universe governed by chance and necessity, with
a God that created things, but refrained from
subsequent interference.

 Law should guide us on capability. It lies in two reasons – to

guide us:
 Not to injure or being injured
 In our own conduct

** He’s the father of western international law

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 Commentaries on the Laws of
England (1765-1769) – section 2.
 This law of nature, being coeval with mankind
and dictated by God himself, is of course
superior obligation to any other - It is binding
over all the globe, in all countries, and at all
times: no human laws are of any validity, if
contrary to this (nature); and such of them as
are valid derive all their force, all their
authority or immediately from this original.

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 Natural law and Natural rights (1980)

The principles of natural law explain

the obligatory force of positive law.
The essential function of law is to
provide justification for state
coercion. Otherwise, it would be an
unjust law. Unjust law is legally
binding, but is not fully law.
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 The Morality of Law (1964) – procedural
(internal) morality: law must be:
1) publicly promulgated ;
2) expressed in general;
3) prospective in effect;
4) understandable;
5) consistent with one another;
6) must not require conduct beyond the power of
the affected parties
7) changed accordingly; not too frequent
8) administered consistent with their wording.

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Leviathan (refer to 19 laws of nature inside)
‘A precept, or general rule, found out by reason,
by which a man is forbidden to do that which is
destructive of his life, or takes away the means of
preserving the same; and to omit that by which he
thinks it may best be preserved.

 The natural law could prevail when men to submit to

the commands of the sovereign.
 Thus, the ultimate source of law only comes from the
sovereign, and the sovereign's decisions need not be
grounded in morality, legal positivism is born.
(influence Jeremy Bentham)
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 Natural
law is based on abstract
evidence and human conscience.

 Doeslack of measurement about

nature renders natural law invalid?

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 What is ‘positive’?
 Oxford Advanced Dict (2004): giving clear and
definite proof; showing clear evidence that a
particular substance is present

 What is ‘positive law’?

 Means a scientific study of body of rules called
‘laws’. The analysis exclude extraneous matters
such as social context, political reason and
psychological background.
 It was the expression of will of the law giving
authority (i.e. black-letter law).

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 The basis of positive law:
 Law is ‘what it is’ in fact
 Law originates from recognized authority
(sovereign)
 Operate on inferior (subordinates)
 Lies in separability thesis – no connection
between law and morals/justice/morality
 (**but it does not mean morality is irrelevant!)
 (**just put morality in different continuum!)

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 A law is an assemblage of signs,
declarative of a volition, conceive
or adopted by the sovereign in a
state, concerning the conduct to be
observed in a certain case by a
certain person or class of persons
who in the case in question are or
are supposed to be subject to his
power

 [Driving on the left side of the road]

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 The Province of Jurisprudence Determined
(1832)

‘Law is a command by sovereign and is

backed up with the threat of sanction.’

 [the gunman’s story who robbed a bank]

▪ Command, sanction, habit of obedience &

sovereign

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Law must consists of grundnorms
(basic norms) that exist with binding
force. The legitimacy of norms are
determined by the efficacy of the
system. The validity of a norm is
subject to other norms of the higher
level in the hierarchy of norms.

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 The Concept of Law (1994)

Law (or legal system) consists of two types of

rules:

Primary rules: a defined set of rules imposing

prohibitions, duties & rights.

Secondary rules: confers powers (public or

private). They (body of authority) make
possible the creation and changing of legal
rules.

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 Farewell to Legal Positivism in The
Autonomy of Law: Essay on Legal
Positivism (1996)

Definition of law must be entirely free

of moral notions. Any reference to
moral consideration in defining the
law, legal validity and the legal
system is inconsistent with the
positivism.
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The law is whatever follows from a
constructive interpretation of the
institutional history of the legal
system. Moral principles that people
hold dear are often wrong, even to
the extent that certain crimes are
acceptable if your principles are
skewed enough.

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 Validity of a legal rule – determined by sovereign,
society or habitual obedience? (Austin)

 Command of sovereign – need to be backed by threat?

 Which one is correct for legal positivism:

 Law and morality are separate @
 Morality is irrelevant to every law

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 Sociologicaljurists believe effectiveness of
law depends on importance of techniques of
the social sciences and knowledge culled
from sociological research

 Basis of sociological view –

 Law reflects society
 Valid law ensures social solidarity

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 “the
task of sociology, is to understand
human conduct in as much as it is
meaningful.’

 Societiesare most essentially marked by a

high degree of purposive rationalization.
The rationalization of modern law in
western societies takes on the specific form
of formal rationalization.

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 …’law serves as an indicator of social solidarity,
and specifically, the development of mechanic
to organic solidarity. Solidarity can be observed
in the evolution of law from a repressive to a
restitutive system”.
 Sociology is the scientific study of social facts…
in terms of its methodology, social facts must
be considered as things.’

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 Advocacy in socio-legal studies is a
‘transition-phase’. Social- science
scientific research methods hold
great importance of placing the law
in its social context. It is a
transdisciplinary enterprise and
aspiration to broaden understanding
of law as a social phenomenon.’

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 ‘..what law is and what law does cannot be
captured in any single scientific concepts.
The project to devise a scientific concept of
law was based upon a misguided belief that
law comprises a fundamental category. To
the contrary law is thoroughly a cultural
construct,, lacking any universal essential
nature. Law is whatever we atatch the label
law to.’

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 American Realism
 Islamic Law

 Function of law
 Classification of law
 Legal terminologies & legal maxims

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