LAW  The concept of mens rea was brought up in the writings of English jurist
Edward Coke, who promoted the idea that an act itself does not make a
Laws are rules that may forbid individuals to perform various kinds of actions or
that may impose various obligations on individuals. Laws may require individuals
to undergo punishment for injuring other individuals. They may also specify how
contracts are to be arranged and how official documents are to be created. They
may also specify how legislatures are to be assembled and how courts are to
function. They may specify how new laws are to be enacted and how old laws are
to be changed. They may exert coercive power over individuals by imposing
penalties on those individuals who do not comply with various kinds of duties or
obligations. However, not all laws may be regarded as coercive orders, because
some laws may confer powers or privileges on individuals without imposing duties
or obligations on them.
MENS REA
 Mens rea (/ˈmɛnz ˈriːə/; Law Latin for "guilty mind") is the mental element
of a person's intention to commit a crime; or knowledge that one's action
or lack of action would cause a crime to be committed. It is
a necessary element of many crimes.
 As an element of criminal responsibility, a guilty mind; a guilty or wrongfu
l purpose; a criminal intent. Guilty knowledge and willfulness.
 Mens rea, or criminal intent, is the essential mental element considered in
court proceedings to determine whether criminal guilt is present,
while actus reus functions as the essential physical element. In all
conventional criminal trials in the United States, these two elements, Latin
terms for "culpable mind" and "culpable action" respectively, are required
to establish the guilt of a defendant.
 Mens rea has roughly four different degrees of magnitude, which are
agreed on throughout most of the states in the United States. These states
of mind are, in descending order of magnitude, "intention" or "purpose,"
"knowledge," "recklessness" (often called "willful blindness" in the United
States), and "gross (or criminal) negligence." The same offense (e.g., killing
a man) can incur a wide range of punishment, depending entirely on what
level of mens rea is found present in the criminal's mind at the time the
crime was committed. The difference between criminal negligence and
deliberate intention in this case could be the difference between a few
years in prison and capital punishment.
person guilty of a crime, unless their mind is also guilty. This is a vital
differentiation between an individual who accidentally does something
that turns out to be a crime, and someone who set out in their mind to do
something to harm another person or their property. In modern law, a
person cannot generally be convicted of a crime unless it can be shown
that he knowingly engaged in the illegal act.
MOTIVE v INTENT
 In criminal law, the intention is defined as the deliberate objective that
leads a person to commit a crime, forbidden by the law, or that may result
in an unlawful outcome. The use of specific means that resulted in the
commission of a crime expresses the intention of the suspect.
 Motive can be described as the underlying objective behind the
commission of an act, that drives a person’s intent. In short, it is the
inducement, i.e. the reason, which impels the accused to engage in
criminal activity.
 Motive is the moving power which impels one to action for a definite result,
whereas intent is the purpose to use a particular means to affect such
result. Motive is often not an element of a crime, while intent normally is.
The question of motive then suggests an inquiry into the state of mind of a
person and his thoughts (which is difficult, if not impossible, to conclusively
determine), while intent can be established based on a person’s manifest,
external actions, e.g., intent to kill is established when a person inflicts
mortal wounds on a person. By distinguishing between intent and motive,
the chances of legislating “thought-crimes” are avoided since the
commonly required element of criminal intent will only be manifested
once there are overt acts (or omissions) by an accused. It is a principle in
criminal law that one is punished for one’s actions, not for what one thinks.
 The intention is the basic element for making a person liable for the crime,
which is commonly contrasted with motive. Though we often use the two
terms interchangeably, these are different in the eyes of law.
While intention means the purpose of doing
something, motive determines the reason for committing an act.
  The primary difference between intention and motive is that intention
specifically indicates the mental state of the accused, i.e. what’s going on
in his mind, at the time of the commission of a crime, whereas motive
implies the motivation, i.e. what drives a person to do or refrain from doing
something. Let’s take a look at the article given below, to understand more
differences between the two.
NEGLIGENCE v IMPRUDENCE
 Negligence is a failure to take reasonable care to avoid causing injury or
loss to another person. A failure to behave with the level of care that
someone of ordinary prudence would have exercised under the same
circumstances. The behavior usually consists of actions, but can also
consist of omissions when there is some duty to act (e.g., a duty to help
victims of one's previous conduct).
 Imprudence – Art 365 RPC; Reckless imprudence consists in voluntarily, but
without malice, doing or failing to do an act from which material damage
results by reason of inexcusable lack of precaution on the part of the
person performing or failing to perform such act, taking into consideration
his employment or occupation, degree of intelligence, physical conditions
and other circumstances regarding persons, time and place.
 Imprudence involves a deficiency of action. Negligence indicates a
deficiency of perception.
APPROACHES IN LEGAL THEORY
There are two approaches in explaining law: descriptive and normative.
Descriptive legal theory seeks to explain what the law is, and why, and its
consequences. It is about the facts of law. It has three principal types:
 “Doctrinal” which seeks to elucidate a case based on an “underlying
theory”;
 “Explanatory” which seeks to explain why the law is as it is; and
 “Consequential” which seeks to discuss the consequences of a certain set
of rules.
Normative legal theory is concerned with what the law “ought to be.” It is about
legal values. As such, it is closely associated with moral and political theories.
It is important to note however that there is no rigid delineation between the two.
Often, one approach leads to another. Utilitarian normative theory, for example,
needs a descriptive account of the consequences of rules, and vice versa.
PHILOSOPHIES OF PHILIPPINE CRIMINAL LAW SYSTEM
(1) Classical or juristic theory which provides that man, who possesses
freedom, is punished for an act or omission willingly, voluntarily, and
intelligently performed. Under this philosophy, man should be adjudged or
held accountable for wrongful acts so long as free will appears unimpaired,
so that if one lacks free will and intelligence, he should not be held
criminally liable. This philosophy is so basic it is implied so often in bar
exams.
(2) Positivist or Realistic Theory which provides that man is inherently good
but his acts or behavior may be conditioned by his environment. Because
of his upbringing, social environment and associations he may become
socially ill or an offender. Thus, under this philosophy penal laws are meant
to “reform” and the penalties are considered “corrective or curative.” Jails
are reformatories and penalties are imposed after an examination of the
circumstances of the offender. Unlike the classical theory which
emphasizes on the offense itself, positivistic theory emphasizes on the
offender and not on the offense.
(3) Ecclectic (or mixed) Philosophy which combines good features of classical
and positivist theories. As contended by many legal theorists, the classical
theory should be applied to heinous crimes, whereas the positivist should
be applied to socio-economic crimes. The Philippines generally adapts the
eclectic philosophy
(4) Utilitarian Theory which is based on the maxim “greatest happiness for the
greatest number of people.” The fundamental idea behind this philosophy
is that the primary function of punishment in criminal law is to protect the
society from potential and actual wrongdoers.
 NATURAL LAW
The term "natural law" is ambiguous. It refers to a type of moral theory, as well as
to a type of legal theory, but the core claims of the two kinds of theory are logically
independent. It does not refer to the laws of nature, the laws that science aims to
describe. According to natural law moral theory, the moral standards that govern
human behavior are, in some sense, objectively derived from the nature of human
beings and the nature of the world. While being logically independent of natural
law legal theory, the two theories intersect. However, the majority of the article
will focus on natural law legal theory.
According to natural law legal theory, the authority of legal standards necessarily
derives, at least in part, from considerations having to do with the moral merit of
those standards. There are a number of different kinds of natural law legal theories,
differing from each other with respect to the role that morality plays in determining
the authority of legal norms. The conceptual jurisprudence of John Austin provides
a set of necessary and sufficient conditions for the existence of law that
distinguishes law from non-law in every possible world. Classical natural law theory
such as the theory of Thomas Aquinas focuses on the overlap between natural law
moral and legal theories. Similarly, the neo-naturalism of John Finnis is a
development of classical natural law theory. In contrast, the procedural naturalism
of Lon L. Fuller is a rejection of the conceptual naturalist idea that there are
necessary substantive moral constraints on the content of law. Lastly, Ronald
Dworkin’s theory is a response and critique of legal positivism. All of these theories
subscribe to one or more basic tenets of natural law legal theory and are important
to its development and influence.
Natural law is the philosophy that certain rights, moral values, and responsibilities
are inherent in human nature, and that those rights can be understood through
simple reasoning. In other words, they just make sense when you consider the
nature of humanity. Throughout history, the phrase “natural law” has had to do
with determining how humans should behave morally. The law of nature is
universal, meaning that it applies to everyone in the same way.
Natural law is a philosophy that is based on the idea that “right” and “wrong” are
universal concepts, as mankind finds certain things to be useful and good, and
other things to be bad, destructive, or evil. This means that, what constitutes
“right” and “wrong,” is the same for everyone, and this concept is expressed as
“morality.” As an example of natural law, it is universally accepted that to kill
someone is wrong, and that to punish someone for killing that person is right, and
even necessary.
TYPES OF NATURAL LAW THEORIES
There are two kinds of natural law theories: natural law theories of legality and
natural law theories of morality. Natural law theories of legality argue there are
necessary moral constraints on the content of law. Natural law theories of morality
are concerned with the character, grounds, and principles of morality. Although
many who subscribe to natural law ethics also subscribe to natural law
jurisprudence, the two theories are logically independent. Someone who accepts
the theory of law may not accept the theory of morality, and a natural law moral
theorist could consistently hold that, unlike morality, law is essentially
conventional in character.
DIVINE LAW
Divine law is any law that is understood as deriving from a transcendent source,
such as the will of God or gods, in contrast to man-made law. Divine laws are
typically regarded as superior to man-made laws, sometimes due to an
understanding that their source has resources beyond human knowledge and
human reason. They are accorded greater authority and cannot be changed by
human authorities.
Natural law refers to moral principles common to most or all human cultures. One
can believe that natural law comes from God, from evolution, or from some other
source; what matters for present purposes is that it is universal. People don't like
snakes, or cannibalism, or hurting babies. Divine law, on the other hand, is law
promulgated by God via revelation. Divine law is not universally known, though it
may be universally binding. If you do not believe in God, then you will not find
divine law compelling, or even, really, acknowledge its existence. Christians do not
acknowledge the divine law in the Talmud or the Koran, for instance.
Not all divine law is natural law, and not all-natural law is divine law, but there is
some overlap. Murder violates both divine and natural law. For a Christian to make
an idol of Jehovah violates divine law, but not natural law. To eat human flesh
violates natural law, but not divine law (the Old Testament culinary laws do not
apply to Christians, and there is no New Testament prohibition of cannibalism).
 RELATIONSHIP BETWEEN LAW AND MORALITY
Law and morality are intimately related to each other. Laws are generally based on
the moral principles of society. Both regulate the conduct of the individual in
society. They influence each other to a great extent. Laws, to be effective, must
represent the moral ideas of the people. But good laws sometimes serve to rouse
the moral conscience of the people and create and maintain such conditions as
may encourage the growth of morality.
The precise areas of relationship between law and morality can be stated in the
following manner:
1) Law is related to morality in the setting forth of those virtues that are related to
the common good. This does not mean that positive human law should prohibit all
vices nor command all virtues: rather it prohibits only the grosser failings of
mankind which threaten the very survival of society and commands those virtues
which can be ordained by human means to the common good.
2) Law is related to morality by the moral obligation imposed, i.e., by the necessity
of an act in relation to a necessary end-since law as the command of practical
reason necessarily implies an obligation. Thus, obligation flows from the essential
notion of law as an effective dictate of practical reason, i.e., a connection of some
necessity between the act commanded and the end for which that act is
commanded. However, positive human laws' obligation is not in that same manner
as morality's obligation.
3) Law is related to morality inasmuch as law is subject to and cannot contradict
moral principles, i.e., natural moral law.
4) Law is related to morality inasmuch as both stem and are directed by the same
source: practical reason or prudence. A keener insight into this particular
relationship can be ascertained by determining the nature of politics; politics is a
human work of art, i.e., a work of experience and prudence-and as prudence,
politics is intrinsically related to ethics.
5) Law is related to morality inasmuch as justice is a moral concept which is
meaningless outside the area of morality. Essentially, justice consists in the
reaction of equality.
DIFFERENCE BETWEEN LAW AND MORALITY
(1) There is a marked distinction between law and morality. The first point of
difference is that laws are enforced by the state whereas canons of morality are
followed at the call of institution. If one disobeys the commands of law or violates
the laws, he is liable to be punished by the state but if one fails to observe the
scruples of morality, he is not liable to be awarded physical punishment. The
severest punishment that can be awarded to a person for not observing the
scruples of morality is his social boycott.
(2) Morality is concerned with both internal and external affairs of man whereas
law is concerned only with the external affairs of man. Hence, law punishes only
those persons who violate laws by their external actions. For example, law punishes
a person only when he-commits a theft or dacoity or murder or any other physical
crime.
Law cannot punish a person for telling a lie or for abusing some-one. Telling lies,
condemning someone, showing disgrace to others, being ungrateful and many
other internal actions of man are sins but they are not crimes.
(3) There are many things which are not illegal according to law but are
unacceptable to morality. For example, telling lies, showing disgrace to others,
feeling greedy, being ungrateful and not helping the poor, are not against the spirit
of law, not only this, sometimes the adoption of immoral policies by the state for
the cause of common welfare is not illegal in the eyes of laws. Machiavelli
maintained that even the immoral practices are legal, if they are applied for the
benefit of the state.
(4) Similarly, there are many things which are illegal in the eyes of the state but
are acceptable to morality. For example, it is not a sin not to keep to the left or to
drive the vehicle fast in the market. The fact is that the canons of morality are
concerned with the moral duties whereas the laws of the state are concerned with
the legal duties.
(5) Another point of distinction between law and morality is that laws are certain
and universal and they are universally applicable to all citizens whereas the canons
of morality are quite uncertain.
Not only this, many time’s different races have different canons of morality in a
society. For example, a large number of people think it immoral to eat meat and
drink wine. But at the same time, there are people in India who think it quite moral
to eat meat and drink wine.
(6) The government should, at first, arouse the moral sentiment of the people and
then enforce the laws. The laws which are not based on the sentiment of morality
are less effective and less permanent.
RELATIONSHIP OF LAW AND JUSTICE
‘Law’ is an abstruse political construct, couched in verbiage that seems to convey
great meaning and clearly defined rules. It is however, just words and conventions
documented and set in a framework that is more or less static.
Human society is not static. It is dynamic, ever-changing. The mores of a decade
ago can become blasphemy in another decade. The ecological, urgent biological
needs and exigencies created by a transforming planet itself may necessitate that
laws be altered with time. They are too, but much more slowly than is required.
This is its greatest failing.
Also, laws have come to represent the decision-making machine of the State, rather
than the will of the public, the citizenry. In an age of connectivity and digital
presences, law and litigation need to be more inclusive, and can be. However, the
ancient practice of having some senile or invested bastards advocate their own
responses and norms to societal problems is still followed rigorously.
Justice is not law. Justice is what the law was meant to deliver, to each individual
person represented by the elect that legislates the law. How often does this happen
though? Statistics can be consulted, but I’d rather not. Since the statistics usually
presented to the public are not credible enough, coming from agencies that have
been famously dishonest before.
There are vested interests and compromised officials that work in governments
and legislative machinery only for self-aggrandizement; some bring a demented,
ill-formed perception of the society they must serve, to their office. Governance -
all governments are riddled with such elements. Each has parallel industries of
legislation, called lobbies and pressure groups.
And the law has now come to define Justice, in clearly documented values and
quantities, procedures and responses by authorities. The individual is seldom
consulted or even heard by the legislator, the adjudicator, the executive.
Hence, what the individual needs, what to him/her is Justice, is immaterial to the
machine that makes the law, that defines its purview and application. The law
today defines what justice will be granted to the individual. True justice is not this.
It cannot be this. There is a sense of rightness and wrongness inherent in mankind,
what many call a moral compass. The established procedures by litigation and
related machinery seek to trivialize it and replace it with a convenient document to
be consulted each time a similar societal anomaly threatens the order. This is not
justice, but an ersatz rendition of it.
Justice is something relative and unique to every individual’s circumstances.
Whether he/she is promised a general level of concern by his/her state or not, the
law exists more to safeguard the State than the subject. This is true for every State
and every type of Government. Justice is perceived as a semantic term that is
ambiguous in the eyes of the law (which is definite) until the executive comes to
apply it, extracting the best possible outcome for any one party. More often than
not, it is executed in favor of the State, though in a roundabout way.
RELATIONSHIP OF LAW AND FREEDOM
When we talk about justice we need to limit the space of ambiguity, because
legislation has to be clear and easily accessible by any citizen. Liberty is the idea of
freedom in a political frame. So, when we talk about liberty we talk about freedom
against oppression in a civil society. Law is the system of rules that guarantees
liberty to preserve its nature and help justice to function. Without Liberty there is
no Law, without Law there is no liberty, without liberty and Law there is no justice.
This is why Law has to be unbiased and liberty has to be controlled to not be
transformed to anarchy and violate the universal truth that leads to justice. It is
dangerous for liberty to become oppressive this is why liberty has to be guarded
by Law in order to maintain justice and in order to preserve societies from anarchy
and chaos. Law is logic and most of the times the rule of the ‘lesser of the two evils’
prevails. When a new law is passed, this might affect some people in society in a
negative way but some others in a positive way. What really matters is to keep the
majority of the people safe and sound and thus sometimes Law cannot serve
absolute liberty to everyone. Therefore, oppression is intrigued by the same tool
that preserves liberty and gives birth to justice. This tool is called Law and to each
one of us, as units, may seem subjective but towards groups of people, it can
approach objectivity or accepted truth by majority. It is not a black or white
decision, because Law is driven by societal and financial forces and unfortunately
it cannot keep everyone happy. Thus, liberty cannot be served and justice does not
really exist as we think, it is a relative model. They are just ideas that force
maintenance of our societies against chaos. The relation between Law and Liberty
is not an absolute one and will never be.
 RELATIONSHIP OF LAW AND FORCE
RELATIONSHIP OF LAW AND CUSTOMS
When a law expresses the moral consensus of the society, it will be effectively
enforced. If it is not backed by firm moral consensus, effective enforcement is less
likely. Law divorced from custom is bound to become artificial which would not be
seriously observed by the people.
The law touches us but here and there, manners are what vex or sooth, corrupt or
purify, exalt or debase, barbarize or refine us by a constant, steady, uniform,
insensible operation, like that of the air we breathe in.” Customs consolidate law
and facilitate its practice.
If the law is not aided by customs, it cannot succeed. As the American James Wilson
wrote, “Of all yet suggested the mode for the promulgation of human law by
custom seems the most significant and most effectual. It involves in it internal
evidence of the strongest kind that the law has been introduced by common
consent and that this consent rests upon the most solid basis—experience as well
as opinion. Just as custom supplements law so law also supplements custom. Law
functions as an educator. It creates a moral consensus where none exists. Today
law is being used to change obsolete customs like untouchability, dowry system,
child marriage etc. In the primitive societies custom well served to regulate the
conduct of life, but in modern urban-industrial societies customs become blurred
and are challenged by newly emerging loyalties and interests.
The custom becomes less a guideline to conduct, sets limits less, where men are
motivated not so much within family and territorial community as by shared
interests within secondary group associations. Today law takes a very large part in
total social control. There are several reasons for it. Firstly, custom lacks an agency
of authoritative jurisdiction due to which the interests of the, community do not
remain fully secure.
NATURAL THEORY OF LAW
Natural law theory is a philosophical and legal belief that all humans are governed
by basic innate laws, or laws of nature, which are separate and distinct from laws
which are legislated. Legislated laws are sometimes referred to as “positive laws”
in the framework of natural law theory, to make a clear distinction between natural
and social laws. Natural law theory has heavily influenced the laws and
governments of many nations, including England and the United States, and it is
also reflected in publications like the Universal Declaration of Human Rights. The
origins of natural law theory lie in Ancient Greece. Many Greek philosophers
discussed and codified the concept of natural law, and it played an important role
in Greek government. Later philosophers such as St. Thomas Aquinas, Thomas
Hobbes, and John Locke built on the work of the Greeks in natural law theory
treatises of their own. The theory proposed that legal systems have a function—to
secure justice. Grossly unjust laws were not really laws at all, but a perversion of
law or mere violence. As St. Augustine put it, lex injustia non est lex. Aquinas’s way
of stating this point was: “positive law has as its purpose the common good of the
community. Any positive law which conflicts/is inconsistent with either natural law
or divine law is not really law at all. Hence, not only is there no moral obligation to
obey it, but there is no legal obligation to obey it, either.” Augustine, Aquinas, and
Martin Luther King were supporters of this view.
ANALYTICAL THEORY OF LAW
John Austin is held to be the founder of this theory and school of law, also known
as the Imperative theory. Its basic premise was that law is a command given by a
superior to an inferior and enforced by material sanctions. Austin defined law as
“rule laid down for an intelligent being by and intelligent being having power over
him”. It emphasizes that the sovereign is a determinate superior, what the
sovereign commands is law, and disobedience of such commands is accompanied
by punishment. Law is the expression of the absolute and unitary sovereignty of
the State. It also holds that force or sanctions are an essential element of law, that
which cannot be enforced is not law. Sanction in the form of some evil is inflicted
in case of neglect to obey the law. To be a law, the sovereign command should be
a general command. If the command requires only a specified act or forbearance,
it is not a law but a particular command.
HISTORICAL THEORY OF LAW
The historical school is based on the writings and teaching of Gustav Hugo and
especially Friedrich Carl von Savigny. The basic premise of the German Historical
School is that law is not to be regarded as an arbitrary grouping of regulations laid
down by some authority. Rather, those regulations are to be seen as the expression
of the convictions of the people, in the same manner as language, customs and
practices are expressions of the people. The law is grounded in a form of popular
consciousness called the Volksgeist. Laws can stem from regulations by the
authorities, but more commonly they evolve in an organic manner over time
without interference from the authorities. The ever-changing practical needs of the
people play a very important role in this continual organic development. In the
development of a legal system, is it the professional duty of lawyers – in the sense
of the division of labor in society – to base their academic work on law on
ascertaining the will of the people. In this way, lawyers embody the popular will.
Sociological Theory of Law-The main proponent of this theory was Roscoe Pound.
He emphasized on the importance of social relationships in the development of law
and vice versa. His best-known theory consists of conceptualizing law as social
engineering. According to Pound, a lawmaker acts as a social engineer by
attempting to solve problems in society using law as a tool. It stated that Law is an
instrument of social control, backed by the authority of the state, and the ends
towards which it is directed and the methods for achieving these ends may be
enlarged and improved through a consciously deliberate effort. The sanction of law
lies in social ends which law is designed to serve.
MARXIAN THEORY OF LAW
Marx stood together with other social “scientists” in their absolute rejection of the
concept of natural law that had guided and inspired the founders of modern-
democratic constitutionalism in the United States. Marx’s ideas about law were
expressed mainly in the Communist Manifesto, which he published in collaboration
with his friend Friedrich Engels in 1848. In that paper Marx contends that “law,
morality, religion, are so many bourgeois prejudices, behind which lurk in ambush
just as many bourgeois interests.” Then he goes on to criticise the whole tradition
of government under the rule of law as nothing more than a mere expression of
“bourgeois” aspirations. Since the idea of law was interpreted by Marx as invariably
an instrument of class domination, he argued that the coming of a classless society
implied that all laws would have to disappear. Lawlessness is elevated by Marxism
to represent the final stage of communism—which according to Marx necessarily
predates “a period in which the state can be nothing but the revolutionary
dictatorship of the proletariat”.
LEGAL POSITIVISM
Legal positivism is one of the leading philosophical theories of the nature of law,
and is characterized by two theses: (1) the existence and content of law depends
entirely on social facts (e.g., facts about human behavior and intentions), and (2)
there is no necessary connection between law and morality—more precisely, the
existence and content of a law do not depend on its merits or demerits (e.g.,
whether or not it lives up to the ideals of justice, democracy, or morality). The
theory has enjoyed a large number of adherents since it was first articulated by
Jeremy Bentham in the 18th century and has undergone considerable modification
and development since then. Legal positivism is accepted today by most
Anglophone philosophers of law, though natural law theories, its natural
opponents, continue to challenge positivism’s fundamental claims.
AUSTIN’S CONCEPT
Command Theory: a jurisprudential concept that holds that law is command
backed by threat and is meant to be ubiquitous in its application. Austin argues
that laws are rules, which he defines as a type of command. More precisely, laws
are general commands issued by a sovereign to members of an independent
political society, and backed up by credible threats of punishment or other adverse
consequences ("sanctions") in the event of non-compliance. The sovereign in any
legal system is that person, or group of persons, habitually obeyed by the bulk of
the population, which does not habitually obey anyone else. A command is a
declared wish that something should be done, issued by a superior, and
accompanied by threats in the event of non-compliance. Such commands give rise
to legal duties to obey. Note that all the key concepts in this account (law,
sovereign, command, sanction, duty) are defined in terms of empirically verifiable
social facts. No moral judgment, according to Austin, is ever necessary to
determine what the law is — though of course morality must be consulted in
determining what the law should be. As a utilitarian, Austin believed that laws
should promote the greatest happiness of society.
HART’S CONCEPT
Hart says that there is no logically necessary connection between law and coercion
or between law and morality. He explains that to classify all laws as coercive orders
or as moral commands is to oversimplify the relation between law, coercion, and
morality. He also explains that to conceptualize all laws as coercive orders or as
moral commands is to impose a misleading appearance of uniformity on different
kinds of laws and on different kinds of social functions which laws may perform. He
argues that to describe all laws as coercive orders is to mischaracterize the purpose
and function of some laws and is to misunderstand their content, mode of origin,
and range of application.
Laws that impose duties or obligations on individuals are described by Hart as
"primary rules of obligation." In order for a system of primary rules to function
effectively, "secondary rules" may also be necessary in order to provide an
authoritative statement of all the primary rules. Secondary rules may be necessary
in order to allow legislators to make changes in the primary rules if the primary
rules are found to be defective or inadequate. Secondary rules may also be
necessary in order to enable courts to resolve disputes over the interpretation and
application of the primary rules. The secondary rules of a legal system may thus
include 1) rules of recognition, 2) rules of change, and 3) rules of adjudication.
In order for the primary rules of a legal system to function effectively, the rules
must be sufficiently clear and intelligible to be understood by those individuals to
whom they apply. If the primary rules are not sufficiently clear or intelligible, then
there may be uncertainty about the obligations which have been imposed on
individuals. Vagueness or ambiguity in the secondary rules of a legal system may
also cause uncertainty as to whether powers have been conferred on individuals in
accordance with statutory requirements or may cause uncertainty as to whether
legislators have the authority to change laws. Vagueness or ambiguity in the
secondary rules of a legal system may also cause uncertainty as to whether courts
have jurisdiction over disputes concerning the interpretation and application of
laws.
Primary rules of obligation are not in themselves sufficient to establish a system of
laws that can be formally recognized, changed, or adjudicated, says Hart. Primary
rules must be combined with secondary rules in order to advance from the pre-
legal to the legal stage of determination. A legal system may thus be established by
a union of primary and secondary rules (although Hart does not claim that this
union is the only valid criterion of a legal system or that a legal system must be
described in these terms in order to be properly defined)
KELSEN’S PURE THEORY OF LAW
Hans Kelsen’s “pure theory of law” reflects early 20th-century scepticism about
natural law and sociology, to both of which Kelsen opposed his claimed purity of
method—i.e., a method free from contamination by values of any sort. He
asserted, first, that legal theory was properly a science in the sense of an
uncommitted, value-free, methodical concern with a determined object of
knowledge. Second, he argued, legal theory must be isolated from psychological,
sociological, and ethical matters. Third, purity of method permits the analyst to see
that every legal system is in essence a hierarchy of norms in which every
proposition is dependent for its validity on another proposition. The justification
for describing any particular rule as law thus depends on whether there is some
other proposition standing behind it, imparting to it the quality of law. This
regression is continued until the Grundnorm, or “basic norm,” is arrived at. The
basic norm derives its validity from the fact that it has been accepted by some
sufficient minimum number of people in the community. The constitution of
modern democracies is the closest concept to the Grundnorm described by Kelsen.
JURISPRUDENCE
The course of court decisions as distinguished from legislation and doctrine.
Jurisprudence or legal theory is the theoretical study of law which hopes to obtain
a deeper understanding of legal reasoning, legal systems, legal institutions, and the
role of law in society.
This article distinguishes three distinct branches of thought in general
jurisprudence. To begin with, ancient natural law, as a major branch and theory of
jurisprudence, is the idea that there are rational objective limits to the power of
legislative rulers. The foundations of law are accessible through reason and it is
from these laws of nature that human-created laws gain whatever force they
have.[2] Secondly, 'clarificatory' or analytic jurisprudence rejects natural law's
fusing of what law is and what it ought to be. It espouses the use of a neutral point
of view and descriptive language when referring to aspects of legal systems.[3] It
comprises different theories of jurisprudence. For example, legal positivism, holds
that there is no necessary connection between law and morality and that the force
of law comes from some basic social facts.[4] And legal realism argues that the real
world practice of law is what determines what law is; the law has the force that it
does because of what legislators, lawyers and judges do with it. Thirdly, normative
jurisprudence is concerned with "evaluative" theories of law. It deals with what the
goal or purpose of law is, or what moral or political theories provide a foundation Sociological jurisprudence
for the law. Besides the question "What is law?", it tries to answer what the proper
Sociology is the study of men in society. A sociologist considers law as a social
function of law was, or what sorts of acts should be subject to legal sanctions, and
phenomenon. The object of sociological jurisprudence is to work upon
what sorts of punishment should be permitted.
jurisprudence with reference to the adjustment of relations of ordering of conduct
which is involved in group life. A theme of this branch is to study living law in the
same manner as a psychologist studies living issue.
KINDS OF JURISPRUDENCE
The most important branch of legal sociology is penology, which studies the causes
Historical Jurisprudence of crimes, behavior of criminal and effect of different theories of punishment. The
Historical Jurisprudence gives the answers of the questions, origin of law, the only principle in penology is to find out why a man does wrong to make it not worth
development of law, evolution of law and philosophy of law. It constitutes the his while.
general portion of legal history. It deals with the general principles governing the
origin and development of law as also the origin development of legal conceptions
LEGAL POSITIVISM
and principles found in the philosophy of law.
Joseph Raz
Analytical jurisprudence
Raz has argued for a distinctive understanding of legal commands as exclusionary
The branch of jurisprudence gives analysis to basic principles of civil and their
reasons for action and for the "service conception" of authority, according to which
interpretation. The purpose of this branch of study is to analyse and dissect the law
those subject to an authority "can benefit by its decisions only if they can establish
of the land as it exists today. This analysis as the principles of the law is done
their existence and content in ways which do not depend on raising the very same
without reference to their historical origin or their ethical significance. Analytical
issues which the authority is there to settle." This, in turn, supports Raz's argument
jurisprudence it examines the relations of civil law with other forms of law, analysis
for legal positivism, in particular "the sources thesis," "the idea that an adequate
the various constituent ideas of which the complex idea of the law is made up.
test for the existence and content of law must be based only on social facts, and
Ethical jurisprudence not on moral arguments.".
The branch of jurisprudence deals with basic principles of ethics and moral Jules Coleman
values.Ethical jurisprudence is a branch of legal philosophy which approaches the
Coleman concludes that the hallmark of positivism is an insistence on the
law from the viewpoint of its ethical significance and adequacy. It deals with the
conventionality of law, not the insistence of the separation of law and morality.
law as it ought to be an ideal state. This area of study brings together moral and
legal philosophy. It is connected with the purpose of which the law exists and the Neil McCormick
manner in which such purpose is fulfilled. Salmond observes that ethical
jurisprudence is the meeting point and common ground of moral and legal
philosophy of ethics in jurisprudence. Ethical jurisprudence has for as its object the
conception of justice, the relation between law and justice.
OTHER KINDS OF JURISPRUDENCE
Philosophical jurisprudence
It deals with philosophy of law, sciences and of philosophy. It digs into the historical
past and attempts to create the symmetry of a garden out of the luxuriant chaos
on conflicting legal systems.