Updated: Oct 11, 2020
The jurisprudence has always been the essence upon the source and nature of law. The philosophy behind the enactment of law can delved into to get accustomed with such type of questions. Juris means law and prudential means knowledge in other words it can be said that jurisprudence is the knowledge, wisdom and philosophy of law. Providing the opportunity to bring the theory and philosophy into relation to the social existence of human being. Serving as the purpose of social-engineering by preserving social values and eradicating the conflicting interests of individuals in society. The concern to understand the legal system in which we are living will enable us to learn more about the quality and nature of our duty to obey the law. Right from the evolving time of this subject and introduction of the two school of jurisprudence, namely naturalist and positivist have raised many debates on why we obey law and how it came into existence? Society is run by law in order to maintain justice and harmony, and without law there will be no order. Sense based on the sanction or natural humanistic approach towards law points out the division of thoughts that clashes between both schools. This scenario can be discussed by referring to one of the famous articles titled “Two concept of interest: Reflection on Supreme Court’s balancing test”, and authored by Charles Fried, Assistant Professor of Law, Harvard Law School published in Harvard Law Review in 1964. Can it be said that legal system will break down only because of the reason that judge is ignorant of law? The truth is that system embedded in society will go on and the judge irrespective of what he knows will be reflecting the basic natural assumption. A judge has and authoritative role to play in legal arguments hence making us question whether we obey law or just retrospect the moral reasoning of human about judging what is right or wrong?
The positivist model is limited to what law is and its study as it is. Positivist view this authority as the only reason to obey law as said by Austin ‘’Command of the Sovereign”. Legal positivism was developed by Austin and Jeremy Bentham that came as an opposition to the natural law theory. A positivist prefers scrutinizing how law came into force. According to the philosophy, is it not the work of the legal positivist to judge law by the question of justice and humanity but by the way law is created. Bentham added the moral philosophy angle into it. He gave importance to the rational principle to provide for the legal reform and held the thought that law is not only rooted in the natural law but works as the command expressing the will of the sovereign. His utilitarian theory opposed the natural law. According to Austin’s Command Theory of law is nothing but the command of sovereign not fitting absolutely but clear enough to mention the notion of law not being moral. Even if law is opposed to nature it is still a law, and must be obeyed since it is given by the sovereign. Thomas Hobbes’ Social Contract theory also hinted towards the similar perspective. Stating the human life would be “solitary, poor, nasty, brutish and short” without the political order and law. Also supporting that absolute government can be the only alternative to the terrifying anarchy.
The Natural School highlights the importance behind everything consisting of valid legal knowledge unlike positivist model, where is it limited to only what authority states where the naturalist looks for reasoning of knowledge as well as rational awareness and acceptance of the of the statements, objective values and norms of proper conduct. Supporting that laws are common to all societies. It proposes that law is both rational and reasonable and states that laws are more of logical progression from morals. Fuller’s principles which he termed as ‘’internal law’’ states that if any legal system fails to follow such principles it will not only be a bad system, but rather will not be a system either. The following were the eight principles –
1. Rules must be expressly in general terms.
2. Rules must be publicly promulgated.
3. Rules must be prospective in effect.
4. Rules must be expressed in understandable terms.
5. Rules must be consistent with one another.
6. Rules must not require conduct beyond the powers of affected parties
7. Rules must not be changed so frequently and
8. Rules must be administered in a manner consistent with their wording.
Hart and Fuller made valid assertions on whether law must consist of morality or not and whether it should be connected with law or not. Neither independent to each other. Hart believed that morality and law are closely linked but stated law will be law and shouldn’t being neglected whereas Fuller strictly believed that law should have the inner sense of mortality and that it cannot be separated from law and rejected the positivist approach and argues that other than relying on law, the goal of society can be achieved. Relation betwixt mortality and law will continue to be the ongoing debate engaging legal analysts. Both seeking to promote a desirable human behavior. The separation motion however can be dispelled from the reconciliation from points of perspective between both the schools. The difference can be used to support each other in terms of positivist approach to law with a moral relevance and its application. This is perhaps not possible to determine keeping in mind the cultural relativism. Both with its own relevancy and irrelevancy depending upon the situation and the person. The expression of ‘belief’ and ‘ought’ to differ from human to human and therefore it becomes necessary to have an authoritative role and to create law describing the notions of what law is and what it not ought to be.