of 46
8/7/2019 MUL 5063 Note 1
1/46
8/7/2019 MUL 5063 Note 1
2/46
What is law?
8/7/2019 MUL 5063 Note 1
3/46
THE NATURE OF LAW
The term law is used in many senses:
We may speak of the laws of physics, mathematics,
science or the laws of football or health.
When we speak of the law of a state we use the
term law in a special and strict sense and in that
sense law may be defined as a rule of human
conduct, imposed upon and enforced among, themembers of a given state.
8/7/2019 MUL 5063 Note 1
4/46
CONCEPT OF LAWWhat is law?
jthe term law is used in many senses
the layman, law is a general rule ofconduct
jprinciples that govern and regulatehuman behavior
jan expression of societys needs andinterests
8/7/2019 MUL 5063 Note 1
5/46
CONCEPT OF LAW
Blacks Law Dictionary:
a body of rules of action orconduct prescribed by thecontrolling authority, and
having legal binding force.
8/7/2019 MUL 5063 Note 1
6/46
CONCEPT OF LAW
Oxford English Dictionary:
the body of enacted orcustomary rules recognised bya community as binding.
8/7/2019 MUL 5063 Note 1
7/46
CONCEPT OF LAWJohn Austin:a command set by a superior beingto an inferior being and enforced bysanctions (punishments).(The superior being is the State & theinferior being is the individual. The
sanctions are wide & includeimprisonment, fines, damages, etc)
8/7/2019 MUL 5063 Note 1
8/46
CONCEPT OF LAW
General definition:a consistent set of universal rulesthat are widely published,generally accepted and usuallyenforced.
8/7/2019 MUL 5063 Note 1
9/46
Law of state;
A rule of human conduct, imposed upon
and enforced among, the members of agiven state
8/7/2019 MUL 5063 Note 1
10/46
Origin of Law
Wormser in his book The Law stated:
It was a long time before anybody made any law. For
ages mans conduct was governed by nothing more than the
accumulated experience of his forefathers, which hefollowed unconsciously. We call such ways of conduct
folkways and they are distinguishable from customs, which
came into being very late in mans career. Customs were
then followed consciously even though men might have no
idea why a custom had originated or what purpose itserved.
8/7/2019 MUL 5063 Note 1
11/46
Origin of Law
Law in a primitive society arose from the needs of the
people.
Certain people live together (tribes, groups or
societies) a certain pattern of behaviour.
Men to satisfy physical, biological, social needs
seek the cooperation of other men living in the
community. Law a result of the cooperation of the people.
The need of men led to the invention of law.
8/7/2019 MUL 5063 Note 1
12/46
Origin of law
How the primitive men invented law?
A pattern of behaviour that developed in a community
repeated (activities) over the years became custom
custom hardened into law.
Law or custom or folkways are different labels put
on the same phenomenon but at different stages of
development.
8/7/2019 MUL 5063 Note 1
13/46
Origin of law
Folkway a pattern of life; people not conscious ofeven their way of life.
Custom people verbalise their folkways & become
conscious of them. Hence, the importance to observecustom (Let our children perish, not our customs).
Customary rules were written down became codesi.e. laws that we have nowadays an age of
written laws.
8/7/2019 MUL 5063 Note 1
14/46
Why need law?
Man is by nature a social animal, desiringcompanionship of his fellows and in primitive times hetended to form tribes, groups or societies either forself reservation or by reason of social instinct.
If society is to continue, some form of social order isnecessary, therefore rules or laws are drown up toensure that members of society may live and work.
the larger the community, the more complex will bethe law.
Hence, law is a mechanism for social control.
8/7/2019 MUL 5063 Note 1
15/46
Custom, morality and law
Law is a body of rules; English law was formed out
of the customs of the people and statute; Malaysian
law, was formed out of customs, English/common
law, Muslim law etc
Law is for the guidance of human conduct
Law is imposed; laws as being laid down by some
authority such as a king, dictator or group ofpeople in whom special power is vested; sovereign
body namely Parliament
8/7/2019 MUL 5063 Note 1
16/46
Law is for the guidance of human conduct; men
resort to various kinds of rules to guide their lives
Moral rules, ethics and law
e.g It is immoral to tell lies
The law is not concerned with these matters and
leaves them to individuals conscience or moral
choice and the pressure of public opinion No legal action results unless a person tells lies
under oath in court
8/7/2019 MUL 5063 Note 1
17/46
Legal Philosophy/Jurisprudence
Latin term juris +prudence i.e. law +wisdom = wisdom of law.
Wisdom = science (of law) Roscoe Pound: Jurisprudence is the science
of law. Using the term law in the judicialsense, as denoting the body of principles
recognised or enforced by public orregular tribunals in the administration ofjustice.
8/7/2019 MUL 5063 Note 1
18/46
Legal Philosophy
Lloyd:
Jurisprudence involves the study of
general theoretical questions about thenature of laws & legal systems, about the
relationship of law to justice & morality,
and about the social nature of law.
8/7/2019 MUL 5063 Note 1
19/46
Legal Philosophy
Prof Hari Chand:
Jurisprudence is an attempt to study the natureof laws, their techniques, their development &
achievement; it is to trace a law of laws, alaw behind the laws.
Jurisprudence deals with theories or valuebases of law.
8/7/2019 MUL 5063 Note 1
20/46
Legal Philosophy
Just as a medical scientist cannot proceed ahead
without the knowledge of physiology, biology, chemistry
etc., a jurist cannot do much without the study of
sociology, history, psychology, anthropology & othersubjects.
Until & unless mankind traced various laws operating in
this universe, progress could not be made. Knowledge
of laws solves riddles & makes things comprehensibleotherwise man would have remained in chaos, utter
confusion & darkness.
8/7/2019 MUL 5063 Note 1
21/46
Why study jurisprudence?
In jurisprudence, one has to study something about
law, not a particular law.
It attempts to take a fuller grasp of the
phenomenon of law.
Its approach is more comprehensive, extensive &
intensive & deep-penetrating than the study of
various branches of law like tort, contract, etc.
8/7/2019 MUL 5063 Note 1
22/46
Why jurisprudence?...
Jurisprudence offers an overall view of the law, a
unified picture in which the nature of legal
institutions & theories becomes morecomprehensible.
Austin Jurisprudence is a map of the law
which presents it as a system or organic whole.
8/7/2019 MUL 5063 Note 1
23/46
Why jurisprudence?...
Jurisprudence is:
an attempt to penetrate into the nature of law, itsfunction & efficacy.
a science which aims at perfecting law to achieve itspurpose in the broader sphere of social justice.
an endeavour to trace a law behind laws so that itbecomes a more serviceable tool in the service of
mankind.
8/7/2019 MUL 5063 Note 1
24/46
School of thoughts in Jurisprudence
j Natural lawj Positive law
8/7/2019 MUL 5063 Note 1
25/46
Natural Law
Natural law is a law which is founded onnature/law which is in accordance with nature
Natural law plays an important role in the
interpretation of laws Argument based on natural law
Natural law ideas are found in every legal system
8/7/2019 MUL 5063 Note 1
26/46
Natural law
Natural law ideas can be found in every legal
system, e.g. principles of natural justice, the
recognition of custom, the concept of public policy,
public morality & social justice.
Natural law is nothing but right reason, reason in
agreement with nature or mans participation in
divine wisdom
Natural law is equivalent to reasonableness
8/7/2019 MUL 5063 Note 1
27/46
Natural law
A reasonable man is in unison/harmony with
natural law whereas unreasonable man is at
discordance with natural law
Reasonableness=rightness
The concept of public policy, public morality
and social justice are regarded as deriving
their life from natural law
8/7/2019 MUL 5063 Note 1
28/46
In Re D (Minor) [1976] 1 All ER 326
The question was whether the parents of a retardedgirls of 11 years who wanted to have a sterilization
operation performed on their daughter be allowed
to go ahead with the operation. The court decided
that such an operation should not be performed.
Heilbron J, observed; the type of operation
proposed is one which involves the deprivation of a
basic human right, namely the right of a woman toreproduce, and therefore, it would, if performed on
a woman for non therapeutic reasons and without
her consent, be violation of such rights
8/7/2019 MUL 5063 Note 1
29/46
Principles of Natural law
Good is to be done & promoted; evil is to beavoided.
Law should be just & fair (moral perspective).
An unjust law is not a law & should not be obeyed. Any man-made law in violation of natural law is not
true law.
Use rational thinking or reason
8/7/2019 MUL 5063 Note 1
30/46
Other Names of Natural law
Divine law
Law of reason
Moral law
Unwritten law
Universal law
8/7/2019 MUL 5063 Note 1
31/46
Positive Law
Known as analytical positivism or legal positivism.
Positivists studied the law as it was posited, as laid
down and not as it ought to be.
The expression of the will of the law giving authority
(of a supreme authority).
From a political superior to a political inferior which
the inferior habitually obeys. Sanctions imposed if the rule is broken
8/7/2019 MUL 5063 Note 1
32/46
Positive Law
Characteristics of the analytical school (according toRoscoe Pound):
Consider developed systems only;
Law is made by legislators/judges; Sanction is necessary;
The typical law is statute;
Their philosophical views are utilitarian;
Not willing to examine the premises or square law withsocial needs.
8/7/2019 MUL 5063 Note 1
33/46
Positive Law
Other additional characteristics:
Keep law & moral separated;
Opposed to natural law theories;
Thrives on stable conditions of societies; Emphasise on the formal study of law;
Analysis of legal concept is worth pursuing;
Acknowledge the influence of ethics & morality on the
development of law but separate them for the sake of
the study.
8/7/2019 MUL 5063 Note 1
34/46
Islamic Law and Islamic Jurisprudence
Shariah:
command, prohibition, guidance & principles revealed
by God to mankind pertaining to their conduct in thisworld & hereafter.
8/7/2019 MUL 5063 Note 1
35/46
Islamic Jurisprudence
Prof. Muhammad Hashim Kamali: Islamic jurisprudence (IJ) exhibits greater
stability and continuity of values, thought andinstitutions when compared to Western
jurisprudencey Custom, rationality, judicial precedent, morality
and religion constitute the basic sources of
Western law, the last two acquire greaterprominence in Islamic law
8/7/2019 MUL 5063 Note 1
36/46
The values that must be upheld and defended
by law and society in Islam are not always
validated on rationalists grounds alone
Notwithstanding, the fact that human reason
always played an important role in the
development of islamic law (shariah) through
the medium of ijtihad, the Shariah itself isprimarily founded in divine revealation.
8/7/2019 MUL 5063 Note 1
37/46
Islamic Jurisprudence
j Fiqh law itself
j Usul fiqh (science of jurisprudence) the study how
to derive the law (hukum)
j E.g. riba (interest) is prohibited oppression &
disastrous to society.
j Drinking liquor is prohibited lose self control &
disastrous to society as well.
j Cause & effect
8/7/2019 MUL 5063 Note 1
38/46
Usul al fiqh or the roots of islamic law, expound theindications and methods by which the rules of fiqhare deduced from their sources.
These indications are found mainly in the Quran andSunnah, which is the principles sources of the islamiclaw.
The Quran and Sunnah themselves however contain
very little by way of methodology but ratherprovide the indications from which the rules ofShariah can be deduced
8/7/2019 MUL 5063 Note 1
39/46
Sources of Islamic Law
j Al-Qur`an
j Sunnah/Hadith of the Prophet (s.a.w.)
8/7/2019 MUL 5063 Note 1
40/46
Methodology of Usul al-fiqh (Islamic
Jurisprudence)
y The methodolgy of usul alfiqh really refers to
methods of reasoning such as anology (qiyas),
juristic preference (istihsan), presumption of
continuity(istishab) and the rules of interpretationand deduction
y The first source of Islamic law is the Quran; the book
containing the speech of God revealed to the
prophet Muhammad in Arabic and transmitted by
continuous testimony.
8/7/2019 MUL 5063 Note 1
41/46
The second source is Sunnah, means a clear path but
it has also been used to imply normative practice, or
an established course of conduct
Ijma or consensus of opinion; is basically a rationalproof, the theory of ijma is also clear on the point
that it is a binding proof. Essential requirements of
Ijma, like unanimity, a plurality of concurrent
opinion
8/7/2019 MUL 5063 Note 1
42/46
y Qiyas; measuring or ascertaining the length, weightor quality of something; technically qiyas is theextension of Shariah value from an original case to
a new case, because the latter has the sameeffective cause as the former, the original case isregulated by a given text and qiyas seeks to extendthe same textual ruling to the new case.
y
E.g, Quran explicitly forbids wine drinking becauseof the intoxicating effect, such prohibitions is to beextended by anology to narcotic drugs, ectasy
8/7/2019 MUL 5063 Note 1
43/46
y Istihsan or Equity in Islamic law
y Equity is a Western legal concept which is
grounded in the idea of fairness and
conscience and derives legitimacy from a
belief in natural rights or justice beyond
positive law. Both istihsan and equity are
inspired by the principle of equity andconscience.
8/7/2019 MUL 5063 Note 1
44/46
y Difference between them, in the overall
reliance of equity on the concept of natural
law, and istihsan on the underlying principles of
the Shariah.
y Still, the value upheld by natural law and the
divine law of Islam are substantially concurrent
8/7/2019 MUL 5063 Note 1
45/46
y Maslahah mursalah; considerations of public
interests; unrestricted public interests in the sense of
its not having been regulated by the Law giver as
well as no textual authority can be found on itsvalidity or otherwise
y Considerations which secure a benefit or prevent a
harm but which are simultaneously harmonious with
the objectives of islamic law.
8/7/2019 MUL 5063 Note 1
46/46
y Urf, custom that which is known, it is the collective
practice of a large number of people that is
normally denoted by urf
y Conditions of valid urf, amongst others represent acommon and recurrent phenomenan, must not violate
the nass.