TUTORIAL QS

UJP 3622
SAMPLE PAST YEAR QUESTIONS
TOPIC 1 : NATURAL LAW
QUESTION 1
 
Discuss the concepts stated below. For each concept support your answer with relevant
illustration/s and argument/s. ( 10 marks)
 
(a) ‘Teleological analysis’
 
Aristotle (384-322 B.C.)
Man is part of nature in two ways (i) He is part of the creatures of God; (ii) He possesses active
reason. Thus, natural law has the same force everywhere and does not exist by people’s
contemplation. It is universal. According to him, universal law is the law of nature. So there is all
the emphasis on universality. For example, natural justice is universal in its contents i.e. there is a
precept that I must return that which has been lent to me On the other hand, legal justice it keeps
changing according to the circumstances i.e. the law on rape etc.
 
Aristotle was of the opinion that positive law ought to try to incorporate the rules of natural law.
Positive law should be obeyed even if contrary to natural law. However, he stated that the ultimate
aim of man should be the attainment of a “State of goodness”. Hence, a just law is that which
allows individuals to develop their potentials within the framework of the society. Such law is
possible only when men exercises reason. Moreover this type of law is perfect, unchangeable and
applicable to all mankind.
Aristotle observed that natural processes tend towards ‘pre-determined
ends’ for example acorns grow into oaks which ‘fulfilled their natural
function’ . ‘Man’ or Humans also have ‘proper function’ which could be
discovered by reason and thought. This is the ‘idea of the good’ and the
good for a species is the ‘end’ it will reach if its progress is not limited or
impeded. This ‘end’ oriented approach is called ‘teleological’ approach.
 
In “The Politics”, he was of the view that good law is where the subjects
achieve their maximum potential towards their appropriate development.
And in the “Nichomachean Ethics”, he speaks about morality that is
higher than that embodied in good laws, which may be construed as an
indication of some aspects of universal justice.
 
 
 
 
QESTION 2:

QUESTION TW0

“Natural law theories are out of touch with times”. (Jeremy

Bentham, Introduction to the Principles of Morals and Legislation)

Discuss.
(25 marks)
 
QESTION 2:
GUIDANCE ANSWER
 Answer:

 Address the definition/meaning of the term ‘natural law’-make reference to the hosts of definitions given
by some jurists or philosophers. For example, the term ‘natural law’ is used here to refer to the body of
jurisprudential doctrine based on the acceptance of absolute value judgments said to be in accordance with
‘nature’ and ‘reason’, reflecting the ‘essence of the universe’, and possessing and an ‘immutable and
eternally valid character. See the descriptions of natural law by Morrison, Aristotle, Cicero, St Thomas
Aquinas, etc. For example, Morrison viewed ‘natural law’ by saying that: “… It is not merely that good
law is moral but morality is conceptually part of law”. (1 mark)

 Address how ‘natural law’ has been described as “a harlot at the disposal of everyone” by Ross. Make
reference to the different theories of natural law & show how each theory is the product of a particular
historical location e.g. classical natural lawyers like St Thomas Aquinas (used it to spread Christianity),
procedural natural lawyers like Thomas Hobbes (used it to support authoritarian government) & stated
that: “…life is solitary, nasty, brutish & short”, Rousseau (used it against slavery & to support democracy)
and claimed men shall be seen as brothers, etc. Reference could also be made to the different periods in the
growth & development of natural law. (1 marks)
QESTION 2:
GUIDANCE ANSWER
 Answer:

 Address how natural law is out of touch with times- make reference to the
decline of natural law in the 18th and 19th century based on the criticisms
forwarded by the critics. The following are some of the criticisms:
- Emergency of the newly political sovereign government of the 18 th and
19th century coupled with the emergency of legal positivism which was
identified with Jeremy Bentham and John Austin posed a challenge to
natural law e.g. utilitarianism which places importance in maximization of
welfare of society in real world replaced classical natural law.
- (2 marks)
QESTION 2:
GUIDANCE ANSWER
 Answer:

- Jeremy Bentham criticised natural law as “labyrith of confusion” based on moral

prejudices or unreasonable speculation about human nature. Bentham argued that natural
law doctrines seem to be tainted by moral prejudice of their own time. See how some of
the jurists used natural law to foster their own agendas. (2 marks)

- Advancement in science by requiring natural lawyers to prove the truth of their

assertions i.e. there is indeed a higher immutable law. The inability to demonstrate the
universal nature of morality, right or good as ‘plain facts’ led to the castigation of natural
law as being subjective and only rooted in a particular historical and social context. (See
David Hume’s argument). In other words, the decline of natural law coincided with the
beginning of modernity. Modernity saw the advent of science & technology sparked off
by industrial revolution. (2 marks)
QESTION 2:
GUIDANCE ANSWER
 Answer:

- Law is seen as a compromise between conflicting interests. In consequence of judicial

rationalism and modern intellectual skepticism in general, the axioms of natural law have
lost capacity to provide fundamental basis of a legal system. For example, to Max Weber,
by making reference to Company Law Statute, he concluded that they are technical rules
with hardly any moral content for they are merely rules to compromise between conflicting
interests. (2 marks)
- Natural law is confused between science and normative law. See how Hart and Kelsen
attacked such reasoning of Aristotle which is based on deductive reasoning. (2 marks)
- Contradiction in the operation of natural law i.e. the doctrine requires an assumption that
man is good because it is from human nature that natural laws are deduced. But if man is
inherently good, why do we need law? See Kelsen view on what is meant by justice. (2
marks)
QESTION 2:
GUIDANCE ANSWER
 Answer:

 Address that it is not wholly true to say that natural law is out of touch with times.
Make reference to the revival of natural law in the 20 th century or even the 21st
century. The following are some of the arguments:
- Revulsion against Nazism, fascism and the two world wars. The argument that
legal positivism allowed a range of horrific activities to occur and that there is a
need for a more idealistic approach to law i.e. here natural law is conceived of, not
as a ‘higher law’ in the constitutional sense of invalidating ordinary law, but as a
yardstick against which to measure positive law. See the post-war recognition of
human rights and their expressions in declarations such as the Charter of the UN,
the Universal Declaration of Human Rights, ECHR, etc. (2 marks)
QESTION 2:
GUIDANCE ANSWER
 Answer:

The impact of the Nuremberg Trials which established the principle that certain
acts constituted ‘crimes against humanity’ regardless of the fact that they did not
offend against specific provisions of the positive law. The judges in these trials
did not appeal explicitly to natural law theory, but their judgments represent an
important recognition of the principle that the law is not necessarily the sole
determinant of what is right. See the Adolf Eichmann’s case in 1960; the East
German Borderguard case(s); the ‘Night of the Long Knives’ in Germany, the
former Serbian leader Milosevic; the former
QUESTION 2:

GUIDANCE ANSWER
 Answer:

- Liberian leader Charles Taylor, the leaders of the 1994 genocide in Rwanda, etc. (2 marks)
- The natural law theory of Lon Fuller and Hart’s ‘minimum content of natural law’. For example,
according to Fuller, ‘law’ is about legal order i.e. the ability of the legal system to demand
fidelity to law or inner morality. Fuller as a modern natural lawyer claims that it is useless to
offer the title ‘law’ to legislation issued by government if it is impossible for citizens to obey
them. (1 mark)
- The neo-Thomism approach which was associated with the work of John Finnis. For example in
natural law in novel terms, John Finnis poses the most serious contemporary challenge to legal
positivism. In elucidating the existence of a definitional and conceptual connection between law
and morality, like other contemporary natural law approaches, is to access that ‘law’ serves a
moral purpose. This purpose according to John Finnis is the ‘Common Good/Human Good’.
(1 mark)
QESTION 2:
GUIDANCE ANSWER
 Answer:

- The development of constitutional safeguards for human or civil rights in various

jurisdictions e.g. the provisions on fundamental rights under the Federal Constitution of
Malaysia and its interpretation by the courts. (1 mark)

- The analytical and historical jurisprudence, were considered not as providing adequate
solutions to problems relating to contemporary values, such as justice. See also the argument
that many atrocities during First and Second World Wars were committed under the eyes of
the so-called positive laws. (1 mark)

- The First World War utterly destroyed the economic, social and political stability.
Consequently, it was considered imperative to establish the standard again on a basis of
lasting values. It was also considered necessary to establish norms to evaluate rules of law
made by man. (1 mark)
QESTION 2:
GUIDANCE ANSWER
 Answer:

Conclusion- Students are expected to sum up the discussion based

on their personal opinions or views i.e. whether natural law is out of
touch with times or not based on the issues raised in the discussion.
(2 mark)
GUIDANCE ANSWER:

IMPORTANT POINTS TO NOTE DURING THE MARKING EXERCISE:

 Allocation of full marks will only be awarded or given to students based on their
ability to apply the legal principles correctly i.e. clarity in explaining the issues or
points raised, use of relevant case law/examples, critical analysis of the issues or
points, etc. Hence, citing all the points or issues while answering all the four questions
is not a guarantee that full marks will be given or allocated to students.
 
 Students are expected to make reference to examples or cases where necessary.
Students must take note that in Jurisprudence all the cases are borrowed cases from
courses such as: contract law, criminal law, tort law, equity and trust, etc. Thus, there
is no harm to cite such cases in the process of explaining your points or issues.