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|Law: Theories of Law by Princiology(m): 4:59am On Jun 21, 2019|
Here and in subsequent posts (replies) are some explanations on certain theories of law. Let's delve in.
Natural Theory of Law
Natural law is a school of thought affirming that certain rights are inherent by virtue of human nature. Endorsed by nature, traditionally by God or a transcendent source. And that we can explain this universally through human reason.
Simply, Natural Law theorists or proponents, unlike promulgators of positive theory of law, believe that we define human laws by morality, and not by an authority figure. Therefore, their human nature guide humans to figure out what their laws should be, and to act in conformity with those laws.
Professor Okuniga said in his own illustration. “If ten men from different countries are put in separate rooms, and each of them is asked in the language that he understands, whether it is good tom steal, majority will say no.”
Natural law refers to the principles inherent to man, which tells him what is fair, good, impartial, right and just.
|Re: Law: Theories of Law by Princiology(m): 5:08am On Jun 21, 2019|
Positive Theory of Law
The word positive can be taken to be an offshoot of or closely related to the word ‘posit.’
And in simple parlance, posit means ‘to place’ or ‘to put’.
Hence, making a good use of the knowledge of relating ideas we can say:
"Positive Law is that which is put or placed on the people by an authoritative ruler, or a body of rulers.”
The main principle of positive law, and one of the reasons why it is different from the natural law theory, is that we place it on something or somebody, while the latter is innate and inherent.
Another name for The positive theory of Law is Legal Positivism.
To read more on the Positive theory of Law, Click here. This link leads to LAWHUB NG (another website).
|Re: Law: Theories of Law by Princiology(m): 5:18am On Jun 21, 2019|
Differences Between the Natural and Positive Theory of Law
The Natural Theory of Law is different from Legal Positivism. Their differences include:
1. Determination of Validity of Laws
2. Moral Principles
3. Good Reasoning
4. Multiple Conscience Problem
Determination of Validity of Laws
In the case of Holman V Johnson, the plaintiff sold tea to the defendant in Dunkirk_ France, with the full knowledge that the tea was to be smuggled into England.
According to the dictates of Legal Positivism, the contract in the scenario above is legal, because in the principles of International law, ‘no country ever takes notice of the revenue laws of another country.’
|Re: Law: Theories of Law by Princiology(m): 5:28am On Jun 21, 2019|
Pure Theory of Law
The pure theory of law assertains that law is based on a system of norms. The founding proponent of this school of thought is Hans Kelson.
Hence, a norm can be traced to a higher norm, and then to another higher norm, to another greater norm, until we reach a non-law created entity, called the grundnorm.
In many countries, the constitution is regarded as this grundnorm, which determines that validity of any other norm made by any agency or body in the country.
Nevertheless, as opposed to this celebrated but controversial believe, many other people have argued that the constitution is not, and should not be regarded as the grundnorm of any society.
|Re: Law: Theories of Law by Princiology(m): 5:37am On Jun 21, 2019|
Historical Theory of Law
The rationale behind the formation of the Historical theory of Law is that Law should emanate from the history of the People. The leader of this school is Friedrich Karl von Savigny, a German jurist and aristocrat.
According to the dictates of this theory, there is something called Volkgeist – the spirit of the people.
The theory believes that this binds the people of a society together and differentiates them from any other people. For example, a German has a ‘National Spirit’.
To a Historical law theorist, for a law to be valid, it must be in alignment with the history and custom of the people – which is their spirit.
For More information on the Historical theory of law see this post on LAWHUB NG.
|Re: Law: Theories of Law by Princiology(m): 11:42am On Nov 13, 2020|
NOTICE: Visit my website, LAWHUB NG, for other academic law posts, laws of the Federal Republic of Nigeria, and probably more.
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