This assignment is going to cover and explain why an official universally accepted definition of law is still being debated up to date. The theories of the five main schools of legal thought will be covered as well in order to bring comprehension of the state of affairs that are being discussed in this assignment.
For centuries, many different scholars have debated what the definite definition of law is. There are many opinions as to why this is so.
German scholar and civil lawyer Hermann Kantorowicz said the reason for this was because the definition of law is very wide and it is almost impossible to cover all the rules and regulations attached to it.
They may cover issues that are not law while certain different definitions are too narrow to the point that they won’t cover what is law. In his opinion, it was of no value to define law as well as it simply being a futile exercise to do.
However, he said that any definition of law that excluded primitive laws, religious laws and international law would indeed be in contrary to his entire notion of legal science. This is quite bizarre seeing that he also stated that ‘moral law’ was unscientific and too narrow to be included in the definition of law.
One vital factor that could serve as a reason behind these continuous debates about the definition of the law is the fact that they’re various schools of thoughts as well as theories of law.
According to Collins Dictionary, the law is defined as ?a system of rules that a society or government develops in order to deal with crime, business agreements, and social relationships. You can also use the law to refer to the people who work in this system.’ This definition may be deemed as broad or controversial all depending on which society, beliefs and also the school of thought one tends to be on favour of. There are over seven Schools of Jurisprudential Thought according to Cheeseman.
The Natural Law School accentuates an ethical and moral theory of law. It exists paying little heed to what laws are enacted. This school of thought discloses to us that law is reasonable, rational and is derived from the ‘law of God’. For instance, demonstrations of brutality like murder are taboo in natural law, regardless of the situation, as it conflicts with the purpose of man’s life. This school of law speaks to the conviction that there are inalienable laws that are common to all social orders, regardless of whether they are formally enacted or written down. Main philosophers of this theory included Plato, Aristotle, Hobbes, Locke, Grotius, Hale etc.
People who do not believe in superior beings are not in favour of the Natural theory. Therefore, if one were to include religion in the definition of law, it would be controversial to such persons and will therefore not be universally accepted.
The Positivist theory characterizes law by solidly appending its significance to composed decisions made by legislative bodies that have power with the legitimate influence to manage and overlook human conduct in society. It is immaterial if the end product lacks morality as long as the proscribed enacted procedure is followed. Formality over morality. Evidence of this theory in the Zambian legal system can be seen in various parts of the constitution as well as laws of Zambia. However, morals are put on a pedestal in Zambia due to the presence and influence of natural law. This can be seen in the case of Feliya Kachasu v Attorney General. Feliya was suspended from school because of refusing to sing the national anthem due to her religious beliefs, her entitlement to freedom of conscience, religion and thought ensured to her by sections 13 and 21 of the Constitution was contravened.
The sociological school of thought was derived from sociology. Therefore, its ideas, methods and line of thought came from sociology – is the study of society. Things that occur in society are factored in, like politics, economics and so on. This theory is very far from acknowledging the divine law that philosophers in the natural theories base their propositions on. Sociology moderately leans in favour of the positivist theory. This can be seen in the way Emile Durkheim – a sociological philosopher – combined empirical research alongside society. However, what differs between the two schools of thought are that the wants and needs of the society are deemed paramount in the sociological theory whilst they aren’t put on a pedestal in the positivist theory.
The realist school of thought states that a law can only be a law if it is written. This school of thought asserts that judges are the sovereigns whom are guided by statutes. They see the law as something that isn’t static and must be constantly investigated in order to keep up with an ever changing society.
The Marxist theory came about from how Marx perceived the world. He emphasized on the existence of the class struggle and class structures that were in a bourgeois capital. He asserted that the law acted as an instrument of oppression that created inequalities within society.
In conclusion, from what has been stated above, the main reasons why law has been problematic to be defined for centuries is because of the diverseness of the law itself as well as people’s beliefs, background, culture and society. The law covers innumerable topics and scenarios and are so wide spread and may lead to one to even go off tangent when trying to define it. How law is defined also depends on one’s society and beliefs in order to incorporate certain bits of information that would provide certitude of its definition. The schools of thought have been enormous influencers of the lack of success when it comes to defining law.
The failure to define law may also be attributed to the fact that different legal systems world-wide are either for or against certain ideologies from different schools of thought. For example, countries that are under the Sharia laws i.e. Saudi Arabia, Pakistan and Afghanistan would lean in favour of the natural law theory as opposed to the positivist theory. This is because, Sharia law is said to be a set of principles rather than a list of rules and regulations. Therefore, the way they would define and describe law would be different from western counties whose laws lean more on the secular side. However, in Zambia, the law is very much in favour of natural law as evidenced in the Preamble were it declares the country as a Christian nation. For instance, customary law is declared inconsistent, null and void if it goes against any of the laws of Zamia as well as natural justice. This can be seen in the case of Kaniki v Jairus. The Lala custom of ‘Akamutwe’ required the surviving spouse to give money to the deceased spouses’ family to cleanse themselves of the spirit of the dead spouse. This practice was repugnant to good conscience and natural law.
The shortcomings of each of the schools of also play a role when it comes to the difficulties of defining law. A shortcoming in the natural law school of thought is that the factoring in of morality brings about uncertainty and the lack of predictability in the law. In the positivist theory, people’s feelings and thoughts aren’t taken into consideration, hence the command theory that is seen as coercive. A shortcoming of the sociological theory is that it’s not practical when it comes to accommodating all social interests of the people in a poorer nation. According to the realist school of thought, a law can only be deemed a law if it’s written. This then belittles unwritten laws and deems them void. In the Marxist theory, not all factors of society are taken into consideration, only the economics. The shortcomings of each of the schools of thought serve as evidence that using only one type of school of thought can be insuffient and inadequate when it comes to defining what law it.
Alas, there is no criterion as to how law is to be defined and what exactly law is hence why law hasn’t been officially defined up to date.
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