Introduction to Jurisprudence - by https://www.facebook.com/nurus.sakinatulfikriah.5?fref=ts

1. Part B
Question 1
The question that has received the most substantive attention from philosophers is – what is
law? Several schools of thought have provided rival answers to this question.
Firstly, the school of natural law. 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 summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as
contrary to natural law.
Stoicism provided the most complete classical formulation of natural law. The Stoicsargued
that the universe is governed by reason, or rational principle; they further argued that all humans
have reason within them and can therefore know and obey its law. Because human beings have the
faculty of choice (a free will), they will not necessarily obey the law; if they act in accordance with
reason, however, they will be "following nature."
For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine
wisdom") which is knowable by human beings by means of their powers of reason. Human or
positive law is the application of natural law to particular social circumstances. Like the Stoics,
Aquinas believed that a positive law that violates natural law is not true law. This view is frequently
summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as contrary to
natural law.For example, in the case of Che Omar CheSoh v Pp,pertaining the issue of the supremacy
of Federal Constitution over religious matter which can only be applied in specified matters listed in
the 9th
Schedule. This case manifest the contradicting jurisdiction between natural law (God’s law)
and the human made-law (Federal Constitution) where in this case, human made law prevails. I did
not agree with the decision of the court in this case since it shows that when there are conflicting
issues between the law of God which is revealed through religious practices by the believers, it is
confined within what is stated in the constitution – the human made law. Like what Antigone had
stated in his document, over and above the written law, there were some which were unwritten, no
one knew when they were enacted but it lives eternally – none of today or yesterday it is, but live
eternal. None can date its birth. The excerpt from Antigone’s document of natural law strongly
proposed that above every human made-law, there is the law of God.
Secondly, the school of legal positivism. Legal positivism is the view that the law is defined
by the social rules or practices that identify certain norms as laws. Historically, the most important
legal positivist theory was developed by Jeremy Bentham, whose views were popularized by his

2. student, John Austin. Austin's version of legal positivism was based on the notion that the law is the
command of the sovereign backed by the threat of punishment. This continued with the concept of
law brought up by H.L.A. Hart.
Jeremy Bentham figured that laws should be socially useful and not merely reflect the status
quo; and, that while he believed that men inevitably pursue pleasure and avoid pain, Bentham
thought it to be a "sacred truth" that "the greatest happiness of the greatest number is the
foundation of morals and legislation." Bentham supposed that the whole of morality could be
derived from "enlightened self-interest," and that a person who always acted with a view to his own
maximum satisfaction in the long run would always act rightly. For example ISA for some quarters
might seem as a unjust law (naturalist) but to Jeremy Bentham perhaps, ISA is actually socially useful
as a means of controlling certain subversive movement as well as ensuring the security of the
country and not for the government to abuse ISA to ensuring their status quo of power by
suppressing any legitimate movement in exercising their individual rights. For example, in the case of
Mark Koding v Pp pertaining the issue of a member of parliament who wanted Article 152 to be
abolished. The scenario of law cases has constantly in favour of him since the national language is a
sensitive issue and shall not be questioned by everyone. However, the point that the people
forgotten is the human right given to each citizen – freedom of speech and expression. But I agree
with the decision of this case and I uphold the theory of legal positivism that the law should be used
to stop sensitive issues from being questioned and thus, causing hatred and chaos among the
people. But, to restrict freedom of expression of the people, it shall not be used as a shield for the
government to stop any legitimate movement from exercising their right.
John Austin figured that law is a command of a political sovereign and is enforceable by
sanction. He mentioned three features of law. It is a type of command. It is laid down by a political
sovereign. It is enforceable by sanction. When any Bill is passed by the parliament it becomes an Act,
which, then, functions as a full-fledged law. The Act is law because it is the command of the
parliament (sovereign) It is law because it is properly passed (laid down) by the parliament.
Violations of the rules of the Act are met with penalties (sanction). For example ISA which some
quarters might see as a unjust law (naturalist) but from John Austin’s ISA is a valid law as it is a
command of the government (parliament) to be followed and if not will entitle a person to be
punished (sanction).
Thirdly is the school or legal realism. Legal realism is the view that the law should be
understood as it is practiced in the courts, law offices, and police stations, rather than as it is set
forth in statutes or learned treatises. It has become quite common today to identify Justice Oliver

3. Wendell Holmes, Jr., as the main precursor of American Legal Realism. Realist possesses a belief that
the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. Jerome
Frank is famously credited with the idea that a judicial decision might be determined by what the
judge had for breakfast. They believed in legal instrumentalism, the view that the law should be used
as a tool to achieve social purposes and to balance competing societal interests.
Fourthly is the school of Utilitarianism. Utilitarianism is the idea that the moral worth of an
action is determined solely by its contribution to overall utility. Utilitarianism is described by the
phrase "the greatest good for the greatest number of people". Therefore, it is also known as "the
greatest happiness principle". The origins of utilitarianism are often traced as far back as the Greek
philosopher Epicurus, but, as a specific school of thought, it is generally credited to Jeremy Bentham.
Bentham found pain and pleasure to be the only intrinsic values in the world: "nature has placed
mankind under the governance of two sovereign masters, pain and pleasure." From this, he derived
the rule of utility: the good is whatever brings the greatest happiness to the greatest number of
people. For example in the case of EngKeock Cheng v Pp, delegated legislation may to certain extent,
under the authority of emergency, violates human right. I agree with the decision of the court in this
case since the purpose of restricting human right during the emergency, for example the right to
movement, is to ensure the whole of the society to be in a secured situation until the emergency
ceased. This is in line with the principle of “greatest happiness’ in the sense that the government is
trying to protect majority of the people by denying certain right, only for the benefit of the nation
and at the end, it is the people who enjoy “the greatest happiness’ – which would be in the form of
security.
Lastly, Legalinterpretivism is the view that law is not a set of data or of facts, but what
lawyers aim to construct or obtain in their morality laden practice. The debate in recent years
concerns interpretivism, a view that is strongly associated with Ronald Dworkin. An interpretivist
theory of law holds that legal rights and duties are determined by the best interpretation of the
political practices of a particular community. Interpretation, according to Dworkin's law as integrity
theory, has two dimensions. To count as an interpretation, the reading of a text must meet the
criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct
interpretation is the one that puts the political practices of the community in their best light, or
makes of them the best that they can be.