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MAJOR THEORIES OF LAW

MAJOR THEORIES OF LAW


Major Theories: The major theories of law, which are prominent in legal theory (jurisprudence) are the following:

i) Law as the dictate of Reason. This is the natural law theory.

ii) Law as the command of the Sovereign of the State. This is the imperative theory. (Austin's theory)

iii) Law as the practice of courts. This is the theory of "Legal Realism". (Salmond's theory)

iv) Law as a system of Rules. This is called as Hart's theory.


Natural Law theory:

Natural law theory defines "law as the dictate of reason". The theorists are called the Naturalists. Law consists of principles of Justice and morality which are deduced from the objective moral principles of nature. These are rules of conduct for human beings, and, may be discovered by natural reason and commonsense. These are true law and are not obligatory but are followed naturally by the people. This is the essence of this theory of law. Naturalists oppose the positive law founded in Codes, Statutes, Constitutions etc., These are obligatory and are enforced by force All these, which are opposed to natural law, are riot really true law, but are only a violation or abuse of law.


Merits:

The merits of this theory of law are as follows:

Superior standard: When the ordinary positive law falls short of some ideal, the people appeal to some higher standard based on natural law. The cry of the people in such cases would be "an unjust law is no law at all". Thus natural law has some leading role to play.


Obedience: The phenomena of nature like the movement of the moon, the earth and the heavenly bodies are governed by the law of nature obligatory and are being followed. However, people have made their own customs, manners, fashions etc., and these are arbitrary and conventional. They do not command obedience as natural law.


Stoic's Philosophy: The Stoic philosophers developed this concept further. According to them, "man should live, according to nature" since, man by nature is endowed with reason. True law is equal to right reasoning.


Natural Rights: On the ground of "reasoning", the fundamental human rights have their base in natural law. For example, equality, has its base in natural lawNaturalists say "A dwarf is as much a man, as a giant is".

Criticism:Natural law has its own formidable difficulties,

Not followed in Practice: Natural law holds that the people 'ought' to follow its rules. But, in reality this may not be so. For example, man out to beget children, just like a tree bearing fruits. This may not be followed. Even States may impose restrictions on begetting children.


Fulfilling functions:

The principle of nature is that everything has its proper function and so, it must fulfill this function. The function of a watch is to show correct-time, as per its maker. This is its definite purpose. This analogy is not fully applicable to man. His purposes and functions are varied. The question about his maker god creates many other problems.


Functions: According to nature, it is the function of smoke to rise, fire to burn, of tree to bear fruits, and of wind to blow. Likewise there are many functions of man founded on "reason".

iv) There is no acceptance of natural law, universally. Slavery was recognised in Rome and Greece. Inequality prevails on the basis of religion, colour etc.


Contents:The contents of natural law are also changing. Monogamy is recoginsed in many States ; Polygamy is some others etc.

Natural law has not provided for the security and protection of property and of the person of the individuals.

Disputes are solved or decided by the Courts and tribunals. Applying moral or natural law, it may become difficult for them to solve.












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