Jurisprudence - Lesson 4

Revision to Rule Of Law

• A concept that was developed in Europe
• The idea of rule of man that evolve into rule of law
• During the periods of Kings, people believe that the king is an objectification of God, thus, possesses the Divine right to rules against other
• 'Objectification' is a product of human idea or labour

Human being dominate nature, but symbol dominate human

• Rule of man basically is just another myth and fiction to create a clear and apparent symbol of the king
• The king, hence, developed this rule by the virtue of it is a divine right of the king
• Rule of law has evolved to rule of law as myth and fiction has evolve to conceptual
• Nevertheless, rule of law is just another concept created by the modern man to enable people to be govern by a government instead of king and queen

Limitation or Challenge to the Concept of Rule of Law

1. Interpretation of law

• Judges have their own idea in interpreting the law
• This could be influence by their social and educational background, economic and political interest and many other elements and factor
• It is a discretion power of the judges to interpret the law but the interpretation sometimes may cause hardship to other based on the influence stated above
• Hence, rule of law become a set of rule that has been set by one men (judge) rather than many (legislature)
• Rule of law does not 100% guaranteed that the law will be free from bias and influence as the interpretation by the judges is open to an extra-legal factors or influence as mentioned above

2. Separation of power

• Constitutional government upheld the separation of power
• Nevertheless, in practise there are no absolute separation of power
• Thus, separation of power is something of a sham or myth to upheld the rule of law

3. Certainty of the law is an illusion

• Rule of law claim to provide certainty of conduct but it can never guaranteed it
• Example situation - Article 11 of Federal Constitution stated that every person has the right to profess any religion hi choose, nevertheless, this is not applicable to Muslim although this is not stated in the article
• In practice, no one can predict what the law is and how it is going to be applied
• The law will be decided in court and this will lead to the limitation #1
• Further, the enforcement of the law sometimes being influence with external factor such as racism

4. Conflicts between Judaical and executive view of the law

• What the executive intended in the law might be interpreted by the judiciary
• More over, executive decision to save a country might be contrary with the law, hence, create dispute with the judiciary who just want to upheld the law

5. Transplantation problem in Rule of Law

• Idea of rule of was developed in Europe
• When the idea was bring to another continent or state, rule of law will find a difficulty in adapting to the society
• Different races or places provided for a different idea on how to interpret rule of law
• Western law stresses on right as Malaysian law stresses on responsibility

6. The concept of procedural justice against substantive justice

• Law under rule of law concept is formal/procedural justice but not substantive justice
• Rule of law promote that any wrong doing shall be charged accordingly following the procedure regardless of elements or factors that contribute to the wrong doing
• Considering the element that contribute to the wrong doing will allow substantive justice that defeat the concept of law is king
• If the law will followed the concept of substantive justice, this will cause floodgate of appeal as people will used the compassion of the judge to escape punishment and liability
• Law should not be discriminate and shall be generally applicable to all
• Substantive justice usually being uphold in kadhi justice that will lead to arbitrariness

Up until now, i hope everyone has a general idea of what is Jurisprudence. I know that a lot of us think that this subject is taboo, nevertheless, always believe in what you believe in and treat jurisprudence as just another subject

Jurisprudence - Lesson 3

Sovereignty

• It is a contested concept as there are many different theoretical approaches dispute over its correct explanation or definition, and also disagreeing about its practical relevance
• Person (King, Monarch, Sultan), groups (Judicial Council), state (Sovereign State) developed the idea of one person authority to the idea of people or the idea of “we”
• The idea of “we” provide for a constitution
• A sovereign state can be define as a state that has been mutually recognized and there is no other state that possesses the right to invade it regardless of the size or population or any other element of the state

a. Origin of Sovereignty

i. Based on Thomas Hobbes

• The social contract theory
• Man and women were living in the state of nature where there is chaos, brutality and war against each other
• When people realized that they cannot live in this kind of live, they claim to agree to an appointed government
• The idea of social contract provide for security which will lead to sovereignty

ii. Based on John Locke

• Originally, sovereignty was governing under the Monarch or King which stated that is it a divine right of the King to rule over its people
• This later move to a rule of consent of people and the government

b. Sovereignty Leads to Revolution

i. America War of Independence

• The idea of sovereignty make the people of America to realized that they want an independent from the British colonization
• They don't want to be rule by the British King but decided to be governed by themselves
• Hence, they become republic under the name of United States of America

ii. French Revolution

• This revolution stated that the government should lies in the hand of the people and not the king

-Both revolution promote the idea of self-government by people
-Self-government state leads to the making of referendum which will be used in order to make constitution

c. Popular Sovereignty

-Sovereignty evolves from the Devine Right of kings to Popular Sovereignty

i. Features of Popular Sovereignty

• Denial of supremacy on anyone of the organ of the state
• State as a whole is sovereign, but it hard to define what is sovereign inside a state, nevertheless, in order to secure the sovereignty, mutual recognition or respect by other state must be obtained
• External sovereignty happens when 1 country did not recognized another country sovereignty such as the relationship between China and Taiwan
• Sovereignty under international law recognized each state as possessing sovereignty

d. Weakening of the Concept of Sovereignty

• Emergence of States Association such as European Union weakening the sovereignty of a country as they make law for the country enlisted with them, but does it represent sovereign body?
• Treaties signing lead to a question on whether the state sovereignty has been surrendered or limited when treaties are sign as they are bound by any superior or higher authority in the treaties or agreement

Rule Of Law

• Power will lead to sovereignty which will lead to the Rule of Law
• Rule of law promotes that no other person shall be above the law, rule are made according to the law, official of the government must be acting according to the law, and fairness justice which mean law based on normative standard must be observed
• Before rule of law exist, there was rule of men by men which is upheld by the church
• This rule leads to; uncertainty as the decision of the king will not be certain in the judgment of a case, unpredictability as the king's decision cannot be predict, and irrationality as the king is only human and might not give a rational judgment as it can be bias on certain values, tradition or belief
• Rule of Law resolves the problem of uncertainty, unpredictability, and irrationality
  The need of rule of law comes from the arising capitalist as they prefer to have a certainty, predictability and rationality in a decision that is important for their business
• Rule of law guaranteed of provided for; certainty of conduct of officials, security of expectation of conduct, clearly stated rules, rules or laws are prospective and not retrospectives, law is generally applied, coherent clear patent of demand and open to interoperation and not absolute
  

That's all for now.

Jurisprudence - Lesson 2

Other school of jurisprudence:-

1. Relativism

• Opinion that is related to certain position (race, nation, economic environment, social, etc)
• The opinion is not neutral and only conceptual
• Eg: male opinion might be bias to woman

According to Hans Kelsen - Pure Theory of Law, what make the law valid is when it conform to the higher standard norm of authority. For example, in Malaysia, Subsidiary Act need to conform to the Parent Act and the Parent Act need to conform to the Federal Constitution. Nevertheless, there is a problem arising with this theory; what gives the higher norm (Federal Constitution in this context) its validity? The possible answer would be that there are extra-legal or political reality of the country/society that gives the validity to the higher standard of norm.


Relationship Between Law and Politics

A. Common elements

1. Power

• Reason for acting
• Can be either coercive, brute force or naked power
• Ability to effects some person or group or entities in their reason for acting and how they act
• Interpersonal power (coercive or economic - resources and wealth give you power, thus, the subordinate become the patronage)
• Normative power is a power given by some higher source or authority to be held against other. Norm is the standard of proper conduct, ought proposition that derives from values, tradition, beliefs, habits etc.

Note: that's all for today, continue in the next lesson

Jurisprudence - Lesson 1

What is Jurisprudence?

Jurisprudence is basically a theory and philosophy of law that has been developed by the scholars of jurisprudence in order to achieve a better understanding of the nature of law, legal reasoning, legal system and legal institution. It was derives from a Latin word of juris prudentia which means "the study, knowledge, or science of law"

There are three mains aspects that has been agreed by the scholars as jurisprudence developed:-

1. Natural Law

• God made lawDeveloped through religion
• Later evolve to science/euphemism (reason/reasoning – based on sense of right or wrong

2. Analytical jurisprudence

• Using analytical approach by asking a lots of question
• Question such as ‘What is law?’ ‘What is the relationship between law and morality?’ etc.

3. Normative jurisprudence

• Overlaps with moral and political philosophy
• Asking what law ought to be

Legal philospophy of jurisprudence cover:-

• Seeks to analyze, explain, classify, and criticize entire bodies of law
• Compares and contrast law with other field such as literature, economics, politics etc.
• Seeks to reveal the historical, moral, and cultural basis of a particular legal concept
• Focuses on finding the answer to such abstract questions

Jurisprudence in short can be describe as: -

1. Legal Theory

• Perspective on the nature of the law
• i.e: whether law is just a rule or its reflect society morality

2. Legal Philosophy

• Explores the value implications or referring to something as legal
• i.e: whether legality reflects morality, thus, deem to be obey

3. An analytical

• Examine contemporary issues
• i.e: legality of abortion or euthanasia

Main school of jurisprudence:-

1. Positivism

• Reject everything that is metaphysical
• Law has got nothing to do with divinity
• Law as prescribe by sovereign political authority only
• Justice and morality is immaterial as no connection between law and morality

2. Realism

• Law is just another name for politics
• More radical view of law
• Law is what the court decide
• Rules, statutes, act of parliament and many other written law is just a mere guide, thus, there are no certainty or guaranteed based only on the provisions unless the courts say so

3. Naturalism

• Law as God's rule
• Law must reflect eternal principles of justice and morality that exist independent of governmental recognition
• Moral philosophy, religion, human reason and individual conscience are also integrating parts of the law
• Refer above note

4. Formalism

• Proposes law as science
• Treats it as math and science
• Issues will be resolved by the judges by applying the legal principles

Note: Each word in different colour can be click for further understanding. Do refer to the philosophy section.

Jurisprudence - Preface

Rules, principle, cases and statutory provision is basically a technical part of laws. It is also known as the ‘Black Letter Law’. This is a form of lawyers’ idea of law. The various issues in law such as the connection betwen law and politic, law and economic and also law and gender issues cannot be dealt only by relaying to law itself. Other medium in interpretation is important in order to decide on this issues of law. This is where jurisprudence came in action. The issues, nevertheless, will only provide a vague answer when it was dealt by jurisprudence alone. Hence, both jurisprudence and law shall work hand in hand in order to achieve certain agrrement towards the decion making process.

Prof. Darbi has said that this is subject is a boring subject and it can be cured for insomnia deceased. I am not making this up as he mentioned it in our class today. Furthermore, he also stated that in order to learn this subject, a person needs to have an open mind as the issues dealt will sometimes touch on sensitivity.