doctrine of law

UC Irvine Law Review, 2011

The goal of this essay is to provide an account of the philosophy of law which establishes the moral and practical appeal of one legal theory, natural law theory, above another, legal positivism. It does not aim to definitively overturn legal positivism, to deny the value of that theory, or to establish natural law theory as the absolute paramount of legal theories. Its aim, rather, is to effectively argue that natural law theory provides a better means of achieving social happiness than legal positivism can. It is a systematic approach, rather than an historical one, although historical evidence is cited at various points. It locates the particular problems facing an account of the philosophy of law, and addresses those problems using practical reasoning. The essay consists of seven sections and a conclusion. Section one establishes the conceptual location of the philosophy of law, describes its methodology, and identifies the purpose and possible scope of that philosophy. Section two discusses the external parameters of law, focusing particularly upon the relation between law and morality as envisioned by legal positivism and natural law theory. Section three outlines the argument presented by Aristotle that natural law provides a concrete means of attaining happiness, thus providing a justification for participation in a political community as well as the adoption of natural law theory. Section four addresses the question of political obligation. Section five then provides an account of the necessary criteria of legal authority which makes that obligation binding. Section six proceeds to discuss the notion of human rights, while section seven considers the justification of punishment in the context of such rights. Finally, a conclusion is presented, which summarizes the main themes addressed and reaffirms why natural law theory is of greater moral and practical appeal.

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Natural Law From Ancient to Modern Era By Daudi Mswahela, 2021

This document covers theories of Law. It's well known that, there are different legal theories developed throughout societies. Though there are a number of theories, but major theories are four. These are; Natural Law theories, Positive Law theories, Marxist Law theories and Realist Law theories. But this paper will discuss in details about Natural Law theories. Positive Law theories, Marxist Law theories and Realist Law theories will be discussed in the forgoing writings. The emergence of Natural Law was not an overnight process. It was gradual process which evolved from various phases, which witnessed changes and development in its scope and mode of operation. The history started from ancient era to the modern era. Note: This document should not be used as final and conclusive reference during the pursuit of the course of jurisprudence. Hence students are needed to refer other literatures cited and referred also in this manual for further clarification and extensive knowledge development. However, via this Manual reader will be able to get general picture about the Transition of Natural Law Theory.

The ‘Law’ like language and culture is a changing variable and it is shaped by social, associational, economic and political contexts. Due to its vividness and variable content, ‘Law’ has remained as one of the difficult concepts to define, yet there is no end to an unrelenting endeavour to provide the most fitting and acceptable definition of the law. In search of a comprehensive answer to the questions relating to meaning, source, subject, aspect and force of law, many jurists, since time immemorial, invested their energies and expertise in foregrounding various dimensions of law; it has led to many theories and schools of thoughts. Such theories may be classified into (i) Natural, (ii) Analytical, (iii) Historical, (iv) Philosophical (v) Sociological, and (vi) American realism. In this Module, our focus will be on Natural Law Theories. This paper is set out to serve three purposes–(i) to familiarize the reader with various interpretation of the natural law; (ii) to study (briefly) various theories on natural law starting from ancient Greek, so that the reader can appreciate the shift of natural law from ‘dictate of God’ to dictate of ‘right reason’; and (iii) to appraise the revival of natural law in the 19th and 20th century along with infusion of new dimensions by Brian Bix in the study of both natural law and legal positivism. The first part of the module will deal with the meaning of the natural law, the second deals with various theories and the last segments start with a revival of natural law and conclude with Brian Bix’s views on natural law.