OBJECTIVE OF STUDY – The main focus of the study is to see that whether the theory of legal positivism in relevant in the modern society. RESEARCH QUESTION/HYPOTHESIS - Is legal positivism relevant in the modern society? LIMITATIONS OF RESEARCH – The research is based on secondary data. The facts and views in the given research are contradictory. To prove the relevance of positivism one needs facts and evidence which this research
Common law can respond to cases, situations and facts that were not foreseen by legislators. Common law can examine and develop responses to real life situations. (Kenneally, A. and Tully, J. (2013) The Irish Legal system). Another main distinction between the two systems is the compulsory force of precedents.
Common Law system Vs. Civil Law system The civil law system and the common law system are indeed two diverse legal systems. Most countries nowadays go with one of the two main legal structures: common law or civil law . Before starting the comparison of those two major legal system, we need to know what is law and why is it important to us. Law has many diverse definitions, but they are all based on the same perception which is the comprehension of enforceable guidelines that guides the relationship between people themselves and between people and society they live in. Law is important to us because it simply tells us what are our roles and obligations toward our society and other individuals .
Equality Before Law: No man is above the law and everyone, whatever his condition or rank is subject to the ordinary laws of the land. Everyone will be charged equally and be subject to the same law courts. Governments and citizens will obey the same law and no specialty will be given to anyone. The Constitution is the result of the ordinary law of the
A law’s validity is one of the most hotly debated subjects among the natural law and positivist thinkers. The natural law theorists claim that principles and morality are the basis of a valid law, whereas the positivist thinkers believe that a law is based on social facts and institutions . Within both schools of thought, each scholar has a different basis for his theory. This debate between the natural law and positivist theorists is related to the interpretation of laws. Many positivist scholars believe that interpretation of laws should be based on legal text alone, whereas other scholars view external sources as necessary tools for interpretation.
2. Law had both the legal and metaphysical aspects which came to be accepted by society at large even though innate with caste distinctions or without egalitarian notions. 3. The Hindu theory did not recognize the human role in the creation of law. Law was deemed to be perfect, divine and
Provides no clear means to test the existence of the characteristics of absurdity, inconsistency or inconvenience, or to measure their quality or extent...” (bitoflaw , 2003) Mischief Rule This rule is more like a principle it allows the court interpret the statute according to what the law was before the Act was passed. Four principles were given in Heydon’s case (1584) for the court to follow and they are; • What was the common law before the making of the Act? • What was the mischief and defect for which the common law did not provide? • What remedy Parliament hath resolved and appointed to cure the disease of the Commonwealth. • The true reason of the remedy Following this rule, the judge is given the right to ratify any “mischief” in a statute.
INTRODUCTION The term ‘Natural Law Theories’ can be defined as the rules, concepts, and principles which are said to be originated from some supreme source other than any political or worldly authority. This theory is based on moral ideals which has universal applicability, and often used to bring certain changes in the society or to maintain stability. Natural Law is supreme and unalterable, it is not made by man; Natural Law is not a codified law and hence no penalty is been sanctioned for disobeying it; still it is considered as a higher form of law. Natural Law is also known as the Law of Reason, as being established on the ground of reasonability by which the world is governed, and also as being addressed to and perceived by the rational
1.1. What the law is? To answer this question we shall consider three particular approaches to law on account of the influence they have had and the insight which they give the nature of the law. Theories of Law: These are the theories of natural law, which defines law according to its content and looks to the problem of what law ought to be; a) Imperative theory b) Realistic theory a) The imperative theory It defines law according to formal criteria. It propounded by Austin.
First and foremost, rule of law is one of the branch of Constitutionalism. Rule of law encompasses the basic principles of equal treatment of all people before the law which guarantees basic human rights. ("The rule of law explained", 2018) The rule of law implies that the supremacy of law which includes all the laws must conform with a certain minimum of standards for an instance, protection of civil liberties. Professor A.V Dicey developed concept of rule of law that comprises three concepts of principles. Firstly, no one should be punished except for a conduct which represents a clear breach of law.