Major Theories in Law by Komilla Chadha

This post or shall I say, musing, aims to briey look at the different theories of law in the four major branches of legal thought (i) Beliefs, Convictions and Religious law; (ii) Sociological and Anthropological understandings of law; (iii) International law and; (iv) Positivism. (i) Beliefs, Convictions and Religious law This form of law, in Todays world, is usually found in realm of personal law. It was guides and moulds the behavior of individuals. There are, nevertheless, examples of when this form of law is used in more wider political contexts, for example in countries such as Pakistan when Islamic law is the basis of the legal system there. Historically, natural or religious law has always played a crucial role in society but , particularly from the 19th century, natural law fell out of fashion and had become actually negatively perceived. One way to explain this is through the Renaissance and Reformation. The Reformation developed Christian thinking and certain changes could be said to have inuenced this deviance from Natural law. For example, the Protestant idea that Church did not have the authority to expound the law of God meant that individual were given more freedom and responsibility for interpreting the law as they please [Menski 2006: 147]. This was exacerbated by ideas presented by scholars such as Rousseau, Locke and Hobbes which promoted more secular concepts. For instance, Grotius said that Natural law would still exist even if God didnt. Trying to explain this deviance through this two key historical periods is a factual approach and we must remember that others things which may not be empirically veried could still be going on such peoples living standards were increasing and this could suggest people had less reason to believe in the divine or that scientic discoveries and advances undermined the value of religious and spiritual convictions. Before moving onto the next section it would be almost insulting to end this section without discussing the works of the infamous theologian St Thomas Aquinas. Aquinas married Greek philosophy with Christian theology as we saw with Natural Law Theory (http://kdkchadha.blogspot.co.uk/2010/02/natural-law-theory.html). Aquinas also differentiated between four types of law thus explaining the purpose of natural law. The rst type is eternal or aeterna law, which are laws of the universe, and he says we believe in this because of divine or divina law. Divine law is the law of God which is revealed to us such as laws created by Jesus and this is there to guide us spiritually. However, we still need a law which applies this eternal and divine law to our lives and this is natural or natura law which we deduce by reason

and natural law theory. Finally so that we can follow natural law successfully, there is human or humana law which is law created i.e. stated by humans. (ii) Sociological and Anthropological understandings of law All law is originally peoples law F.K. Savigny Sociological and anthropological understandings of law centre around the understand law is a social construct which must be explained not through the state, but citizens or members of a society. This understanding accepts that custom or religious convictions can be forms of law as law is what people understand to be the right thing to do. S.F. Moore presents a sociological understanding of law. Moore suggests that law is semi-autonomous entity i.e. it can never be fully understood or described by custom or the state. They rub of each other, legislation affects custom and vice versa. So law can be explained by custom or religious belief but legislation and international ideologies such as human rights which affect them must also be accepted in this understanding. Unlike Maine and Hart, she argues that no society is without law. Ehrlich presenting a similar view to Moore presents an anthropological conception of law. He suggest that law can be explained through the living law which is amalgamation of both ofcial state and custom because ultimately the living law is what people perceive to be the right or correct way to act/behave. Chiba, a legal pluralist, he presents a three tier model of law saying law can ofcial i.e. recognized by the state; unofcial, so not recognized by the state yet still practiced and a legal postulate i.e. a concept such as custom, conviction, morals etc. It is important to note this model because we can argue that Ehrlichs living law can be created when legal postulates affect the ofcial and unofcial law. (iii) International law International law can be split into two: (i) laws and legal philosophy which is supposed to uniformly apply to the whole world or as Menski says the Globalistan and (ii) the formulation and practice of treaties and legal dealings between countries. In this post I talk in reference to the rst type of international law. The main legal philosophies or uniform source of law today is Human Rights (and I state this because it is almost impossible to refute). It has been suggested that Human Rights originate from the works of legal scholars such as Hobbes, Grotius and Locke who presented secular understandings of natural rights as historically rights were understood religiously. Thats why some say Human Rights is an extension of natural law, perhaps modern natural law? Anyway, Human Rights provides provisions of how individuals should be treated merely for being human

and applies uniformly to all the countries in the world. However, in reality we can see there is a difference between what is applied and what actually happens. It like the difference between Chibas ofcial and unofcial law. So Human Rights provisions may legally bind women to have the same rights as yet in so many cultures and even legal systems they are not given. Another example is that we may say all humans are equal thus all have a right to security, not be tortured etc. However, in places like India, I have witnessed rst hand, this is not in the mentality of the people. Castes, races and classes play a key role in how people are treated and what rights they are given. So before endorsing such provisions of international law it is important to recognize that this branches still today remains more theoretical than the other three branches. (iv) Positivism Positivism is the notion that law is something distinct from values, culture and morality, thus can be studied singly on its own. There are many different types of positivism it is important to note for example Tempered Positivism is one where a hierarchy of powers is drawn or Constitutional Positivism it is where the constitution is given absolute power. So when we look at specic countries in regard to positivism, it should be established what type of positivism you are discussing. Before looking at what some key positivists such as Sit Henry Maine and H.L.A Hart say, it is important to understand the historical background which has made this school of though the most proclaimed, respected and accepted understanding of law in the Western world. The historical background I am referring to is the Greek and Roman images of law and what youll nd is that ultimately both believe in the importance of legislation and state-made law. Greeks placed emphasis on positivist law because without positivism a society could not function properly. Plato said that legislation is an social instrument which should be used to mould society and Aristotle agreed by saying that ultimately positivism was most important as it was up to legislators how customs, Themis and universal law was managed. Roman law dened law as two things ius publicum (laws created by rulers for their citizens) and ius civile (laws created by jurist when issues were presented) and although at times these were intertwined it was ius publicum was more important as laws created by jurists were usually based or inspired by the ius publicum. This is perhaps why positivism and the role of state is accepted with so much trust and belief in the West today. I feel it is also to a but of an extreme this view has been exaggerated because both Greek and Roman system they do have shadows of pluralism. For example, Cicero suggests that good lawyers who not only knows the law and can argue in a lawsuit but is one who knows customs and religious beliefs. Furthermore, both Aristotle and Plato never deny customs or convictions, in fact they argue they should be

incorporated in the state, what they are actually saying is the state is important for this reason that it is the one that maintains and balances customs and convictions with societal order. Regardless of my view or perception of the nature of Roman and Greek law, there are four strong positivist positions I would like to share with you in this post. The st is that of John Austin who, although was the student of a pluralist Jeremy Bentham, argued that the law is the command of sovereign and as pointed out above the state is seen as sovereign. Austin by saying this refutes any possibility of anything else law. But this depends on what one perceives as sovereign so in Islamic countries, it is Allah who is sovereign and thus this understanding of law would make sense because the law is the command of Allah. But I think it is almost certain that Austin was referring to the state by sovereign and this view more recently was proposed by Grifths who argued that the only true form of law is the law of the state. Maine, rejects the view that law can be anything other than state-law because he says that so-called simple people and societies have no law because law is acquired through civilization which has not occurred in places like many African countries. The rst line of his book, Ancient Law, quote clearly sums up how Maine perceived law, the most celebrated jurisprudence starts and ends with a code i.e. state written law. H.L.A Hart accepts and agrees with Maines perception of law but he goes on step further to explain this view. He says that law is the system of primary rules, secondary rules and rule of recognition which operates in countries. Secondary rules and laws and how system works for example it lays out hierarchal power and he says it is this what is missing in many of these Eastern countries and thats why they dont have law, well fully.