Law

law is a body of rules or action or conduct prescribed by controlling authority and having
bindinglegal force. That which must be obeyed and followed by citizens subject to sanctions or
legalconsequences is a law. Law can be categorized into two different forms
Legal Positivism
Legal positivism is a school of thought in philosophy of law and jurisprudence. The principal
claims of modern legal positivism are that:
  There is no inherent or necessary connection between the validity conditions of law
and ethics or morality.
  Laws are rules made, whether deliberately or unintentionally, by human beings.
Natural law
The foundations of law are accessible through human reason and it is from these laws of
naturethat human created laws gain whatever force they have. The good for us human beings
ishappiness, the living of a flourishing life. Happiness or flourishing consists in the fulfillment
ofour distinctive nature, what we ³by nature´ do best. That involves the development and
exerciseof our capacities for rationality, abstract knowledge, deliberative choice, imagination,
friendship,social cooperation based on a sense of justice, etc.
Legal positivism
Vs
NaturalLaw
Law
Legal
Positivism
Natural
law
Legal
positivism
John
Austin
Professor
Hart
Natural
Law
Aqu
John Austin
An expression of power (commands) set by political superiors to political inferiors and
sanctions are imposed incase of non compliance. According to Austin, positive law is a series of
both explicit and implicit commands from a higher authority. The law reflects the sovereign's
wishes and is based on the sovereign's power. Backed by sanctions and punishment, it is not the
same as divine law or human-inspired moral precepts. Viewing the law in this way, Austin did
not so much question what it ought to be but revealed it for what he thought it was. Analytical
jurisprudence sought to consider law in the abstract, outside of its ethical or daily applications. In
Austin's view, religious or moral principles should not affect the operation of law.
Thebasic points of Austin's theory of law are and criticism is following,
 Sovereign:
Austin states that a sovereign must be habitually obeyed by the bulk of the society and must be
legally illimitable.
Criticism
Since law emanates from a multitude of state machinery, i.e. the parliament, legislature and
judiciary, it is probably wrong to say that it is the command of one person
 Revolutionary
Criticism
In a revolutionary setting or a military take over, Austin¶s theory seems of no use as it is
notnecessary that the bulk of the society owes habitual obedience to the political superior
forexample 1999 (Musharraf¶s takeover)
  Concept of rule of law
Criticism
A.V.Dicey gave the concept of rule of law, which states that no one is above the law and no one
may act outside the law
 Sanction
Austin considered sanctions essential to the existence of law.
Cristicism
Sometimes law is perfectly conceivable without sanctions.
There are laws which are not commands with sanctions. For example Election statutes,
Contract laws etc (such laws provide mere facilities to citizens).
Professor Hart
Hart is a positivist but a particularly good one in that he soundly criticizes earlier positive
theory.This makes him a natural target because people reason that if positive legal
theorycan work,Hart would be the one to make it work. Hart¶s view is that a legal system arises
from thecombination of primary and secondary rules. Hart criticizes the concept of law that is
formulatedby John Austin that proposes that all laws are commands of a legally unlimited
sovereign. Hartsays,. Laws may also differ from coercive orders in that they may not necessarily
impose dutiesor obligations but may instead confer powers or privileges. Hart feels that Austin¶s
theory hasresulted in failure because the µorders backed by threats¶ concept does not take into
account theidea of µrule following¶ and without a rule one cannot state even the most elementary
points oflaw.Hart sought to rectify positivism of this wholly sanction based compliance.Hart
believesthat laws need to be µself applicatory¶- used to control, guide and plan life out of court.
Thus,according to Hart, rules which are valid by the formal tests of a legal system are laws,
eventhough they might offend society¶s (or one¶s own) morality.
Examples of PrimaryRules
o
Criminal prohibitions.
o
Tort rules.
o
The individual right to freedom of speech.
o
The provisions of contracts that define the primary obligations of the parties.
Examples of SecondaryRules
o
Contract law rules that enable parties to form contracts.
o
The rules that allow testators to create a will.

o
The constitutional rules that confer legislative powers on Congress.
o
The statute that authorizes the Supreme Court to promulgate rules of practice and
procedure for the federal cour

o
The constitutional rules that confer legislative powers on Congress.
o
The statute that authorizes the Supreme Court to promulgate rules of practice and
procedure for the federal courts.
NaturalLaw:
.Fuller
According toFu ller, a legal system¶s existence is not based upon their enactment by a
formalprocedure. He states that if certain moral qualities do not exist people don¶t obey the law.
He wasa legal philosopher, who wrote The Morality of Law in 1964, discussing the connection
betweenlaw and morality. Fuller was professor of Law at Harvard University for many years,
and isnoted in American law for his contributions to the law of contracts.
EightRoutes of Failure for anyLegal System
1.
The lack of rules or law, which leads to ad-hoc and inconsistent adjudication.
2.
Failure to publicize or make known the rules of law.
3.
Unclear or obscure legislation that is impossible to understand.
4.
Retroactive legislation.
5.
Contradictions in the law.
6.
Demands that are beyond the power of the subjects and the ruled.
7.
Unstable legislation (ex. daily revisions of laws).
8.
Divergence between adjudication/administration and legislation.
The more closely a system is able to adhere to them, the nearer it will be to the ideal, though
inreality all systems must make compromises. These principles, Fuller argues, represent
the"internal morality of law", and he argues that compliance with them leads to substantively
justlaws and away from evil ones.
Natural Law
Divine law
any law (or rule) that in the opinion of believers, comes directly from the will
of God
Unjust law
Acting contrary to the standard of right; not animated or controlled by justice;
false; dishonest; as, an unjust man or judge.

Aquinas
Aquinas uses the term "natural law" to refer to morality, or the moral law. He sees law as arational
attempt to guide action. A law is a prescription that we act or not act; it may also exist inus as an
inclination to act in certain ways. A law must be made and promulgated by those incharge of the
community. Laws must be directed to the common good -- to the happiness that isthe goal of
human actions. Prescriptions that aren't for the common good are unjust. A so-called"unjust law"
isn't properly a "law" at all.
For example: Drinking alcohol is allowed that is against to divine law.
Which theory in your opinion defines law best?
Analyzing the above four theories of the law, I think Legal Positivism takes over the NaturalLaw
because if you try to enforce the rules and regulations what natural law tells us, it is inreality
much harder to act upon those procedures because it can create so much chaos in thesocieties and
thus whole public masses can come on the streets which proves not to be in favor ofthe Country
and among the two theorist of legal positivism. Jhon Austin¶s theory is more likelybecause if we
take decisions and make laws after analyzing the common people view¶s of thewhole country
than it will be so much hard and difficult to sort out the best possible solution asthe Morality of
everyone differs from person to person and if the morality of each and everyindividual is
different from others, then it is so hard to make laws which everyone will befollows that, thus we
cannot come to a common view¶s of the whole society. In this regard to thereality, a law which
is made by the Political Sovereign towards political inferior and isenforceable by sanctions is the
best possible way. Though for the time being, public mightoffend it if those laws are against their
morality & ethics, but as there is no other way, they getused to it later on and does act upon those
laws which government makes. This theory alsoreduces the chances of chaos and unstable
political and economical issues within the country.
Examples
y
US and UK had sent their troops to IRAQ to eliminate terrorism from that country,though at that
time there were more than half of the people of United Kingdom who wereopposing the
government that they should not send their troops to IRAQ and rest of them

were agreeing with the government to send their troops to IRAQ for war on terror. Andthe result
was that the government didn¶t listened to what the people were saying as themorality and
ethical issues of each of the person were different from others. But onceTony Blair agreed, they
had to follow the law.
y
The NationalReconciliation Ordinance (NRO) was an ordinance issued by theformer President
of Pakistan, General Pervez Musharraf, on October 5, 2007. Itgranted amnesty to politicians,
political workers and bureaucrats who were accusedof corruption money laundering, murder, and
terrorism between January 1, 1986, andOctober 12, 1999, the time between two states of martial
law in Pakistan.
y
Amendment of Article 1 of the Constitution.- In the Constitution of the Islamic Republicof
Pakistan, hereinafter referred to as the Constitution, in Article 1, in clause (2), inparagraph (a),
for the word "Baluchistan" the word "Balochistan", for the words "NorthWest Frontier" the
words "Khyber Pakhtunkhwa", and for the word "Sind" the word"Sindh", shall be substituted.
This law is valid but immoral.