NATURE, FUNCTION AND CLASSIFICATION OF LAW
Objectives of the course:-
• Enable the students to think in a more abstract or general fashion than is generally achieved in the study of specific areas of law and demonstrate the same in answering questions.
• Enable the student to develop the willingness to question and think independently and to find out more in the study of law.
• Discuss critically the definition of law
• Explain the various scholars position on their attempt to define the meaning of law
• Distinguish law from morality; justice
• Explain the various classification of laws
• Discuss the functions of law in society
Nature of law
Meanings given to the word law
The word ...view middle of the document...
• Proper law: A basic definition of law that focuses on its practical nature is that it is the totality of rules made and/or approved by parliament and the courts which govern how people are supposed to conduct themselves and which are enforced by courts of law.
What is law?
The quest to find the nature or essence of law has perplexed legal and political philosophers. It is also not within our course content to try and produce a conclusive answer to the question.
However, an analysis of the works of legal scholars in the field of jurisprudence shows that the failure to produce a conclusive answer in this matter is not because the question is difficult but such a question is ambiguous.
For example: there could be several constructions to …
The question: What is the nature, or essence, of law?
Let us look at two possible conceptions to the question which could be derived and therefore producing different answers:-
1. The question could be looked as addressing the definition of law (i.e. what is the definition of “law”) therefore being a linguistic question rather than being a question about the phenomenon of law. … What we have looked at; in the different conception of law above.
2. The other possible answer could seek to answer what is the formula or in other words what is the criterion of validity of law? In this the analyst would be aiming at producing a criterion or rules for identifying law regardless of the legal system that law applies. However a criterion of validity is necessary in relation to a particular legal system. Scholars have espoused theories in trying to establish the phenomenon of law. These theories have been categorized in various schools of thought based on the scholar's orientation. We will consider some schools of thought as follows:-
Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maxim an unjust law is not a true law , lexiniusta non estlex, in which 'unjust' is defined as contrary to natural law.
• Natural law is closely associated with morality and, in the version of the many scholars who ascribe to these school natural law ascribe to the intentions of God.
• To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote 'the good'.
• Notions of an objective moral order, external to human legal systems, underlie natural law.
What is right or wrong can vary according to the interests one is focused upon. Some of the scholars who ascribe to this school of thought include:- Aristotle, Thomas Aquinas, Thomas Hobbes; Lon Fuller, John FinnisLegal Positivists:- The scholars in this school of thought (positivists) view on law can be seen to cover two broad principles:
(a) That laws may seek to enforce justice, morality, or any other normative end, but their success or failure in...