Random Thoughts on the Philosophy of Law

                        




 Notable German philosopher Emmanuel Kant believed,  there exist  eternal and immutable 
principles which govern and contribute making of laws, and law making was used to be judged in this perspective. According to him, the distinct mark in this regard is free will, which is the ultimate principle leading to the concept of "rights" which was stood deduced from  rational harmonization of free will, nevertheless the ethical basis and theological basis govern the principles of 'Jurisprudence' as a science of philosophy. 

These developments led to the advancement of the concept of rational foundation,  this view was replaced by Kant by advancing the concept of  'metaphysical foundations' which explained the concept of authority behind the precepts required for  an unchallenged authority, in this background he pleaded for recognition of divine law by the  political entity namely State.

In this background by the end of 18th century, the natural law philosophers stood divided into:

A. Natural law philosophers  who believed in the explanatory use of divinity; and;

B. Positive law philosophers who developed the declaratory functions of law.

These concepts were deduced from: 

I). Analytical reasoning ;

II).  Authoritarian nature of law; and

III). Emergence of law as a philosophy.

In this background, the most common source of law namely, "Custom" emerged as a recognized and applied principle of law. The fact is that in the enforcement of a  'Custom' there was no act of creation and as a source of law it was recognizing  a fact which was already in existence as a popular action. Accordingly, the " natural law school" recognized  that law is to be discovered as the same stands as  an immutable and eternal fact.

On the other hand, "historical school" believed that positive law was not an outcome of human wisdom, and that the idea of right and wrong did itself progressively developed through the  experience which humans gained through the practice of  administering Justice.

Jurisprudence: The science of jurisprudence emerged from the ethical concepts. In this way, it demanded  socio-political considerations relating to:

i. Freedom; and

ii. "Rights".

Over a period of time, ethical considerations gradually stood ejected as being the source of law from historical jurisprudence. And  the 'Custom' emerged as being the fundamental source  of law:  In this perspective  following considerations were notable:

iii. Behavior formation and acceptance of 'custom' as force of law;

iv. "The structure of law" thus  fall in the realm of  historical theory of jurisprudence,  this idea fundamentally became dependent on  tradition or  "Custom" leading to a strong  foundation of law.

Developments in the 19th Century: Orthodox historical jurisprudence rejected  creative participation of Judges , Jurists, and the law givers. But despite all that, 'Custom' emerged as an undisputed source of law.

The characteristics of norms based  customary law: 

I).  Normative form of law emerged from the practice of popular actions.

II). Foundation of Normative law is based on judicial reasoning.

III) It is based on doctrinal writings , scientific discussions and  legal principles.

IV). Justinian code for examples, became, the source of law and a foundation for legislation.

The Roman era: This era was plagued with the following issues:

a) Culmination of Rational discovery .

b) Through Roman Senate Legislation became a new source of law.

c)' Custom' became an enforceable norm.

A contrasting view of the legal systems appeared in the laws of Germanic people. These Laws had their foundations in:

i. Norms declared as practicable  by Custom;

ii. Religious usages;

iii. Social Customs;

iv. Traditional mode of social customs.

The basis of authority in this regard was long and undisturbed usage. Custom and traditions grew and law also grew.  Legislation became an instrument to restate the usages and traditions in a systematic and organized way. Morals at that time were out of the domain of judges.

Historical jurisprudence: The philosophers of historical jurisprudence believed that customary precepts were independently given effect in judicial course of action while analytical Jurists believed that sanction of law was used for enforcement through judicial and administrative organs. As regards social rules, one has to consider pressure behind the legal rules. For example: 

Sanctions:

Habit of obedience;

Displeasure by one's fellow men;

Public sentiment;

Social standard of Justice.

And in this background, jurists all through were trying to find out answer to the question namely,  What is law?

All through these ages the historians, jurists and philosopher were able to establish a body of enforceable precepts from sources where from legal precepts were drawn. And gradually religion became a political and organised society. These institutions stood intermingled in religion, law and morals. The Geeks for example, treated law as consisting of traditions, religious usages and traditional social customs. And through social control of customs, gradually legislation stood recognized as source of law.

Sources of enforcement for social controls: In this regard, politically organised societies contributed, for example, Roman law was not divine, it was based on social Customs, but still impact of divinity on it is quite strong. For example, the Romans supported enforcing of good faith in transactions, keeping the promises, and performing the agreements. And gradually law adopted all these concepts.

2nd stage in the development of law: In this era law was made stricter and the State became powerful.  Views of analytical jurists had their impact on the developments of this era.In this age, law was defined as a system of remedies based on  procedural rules. The state and its departments were to operate in these given norms. The law now stands codified and crystallized. Custom, as a source of law stood, outstripped by morality, while the law of this stage became highly immoral.

In the next stage: Assimilation of ideas from other legal systems became more organised for example, development of court of chancery in England and philosophic ideas of juristic writers.

Base line: Law must coincide with morals, and moral principles became equitable principles. Accordingly 'law of Nature School' links itself to somewhere between law and morals. The views of analytical jurists also had the impact: And concepts of rights, duty, power, liberty and privilege emerged as being devoid of any moral content.

In the 19th century, legal rights and legal duties stood recognized as part of natural right and moral duties. Morals were now treated as duty, and legal creditor who sought equity had to do equity himself.

"Maturity of law" in this sense emerged through moral institutions which stood legalized. Moral ideas and statutory provisions worked as raw materials from which the courts made the law by judicial decisions based on the sources of law.

(The writer is an advocate and is currently working as an associate with Azimuddin -Din Law Associates Karachi)