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What is legal theory and political theory?

Legal theory is what we call it as jurisprudence is concern on the


meaning of what is law.
While political theory is a theory about why should one obey the
law?

And according to Philip Soper - legal and political theory should be


connected by posing as the central question of both,

What is law (legal theory) that it should be obeyed?


(political theory)
Should be noted that the question on what is law does not mean
you need to provide the definition of law. It must me more of that.

PART 1: Define legal theory on the question of what is law by


referring to the 3 major school of thought:
1) Positivists
John Austin as a command given by a sovereign who may be a
King, council or parliament. Such a command according to him is
backed by coercion so that any person who violates the law would
suffer the pain provided by the law. Law without sanction is not
law.
Modern example: Traffic Regulation is this a law? Yes! Because
it is a command provided by the parliament and if someone fails
to obey he will be fine.
i) Law properly so called Devine law and human law
ii) Law improperly so called Laws of fashion

2) Naturalist
St. Thomas Aquinas law as a rule in virtue of which one is led to
perform certain actions and restrained from the performance of
others.
Modern Example: Islamic Law do what God command you to do,
and forbid oneself from doing what He restrained. Help the poor,
and do not commit corruption.

3) Sociologist
NELFI AMIERA MIZAN, 2015
JURISPRURENCE TUTORIAL

Roscoe Pound law is a process of balancing conflicting interest


and securing the satisfaction of the maximum of wants with the
minimum of friction.
Modern Example: Parliament enact the law in order to solve
conflicts between the people. AT the same time, the law made by
parliament tries to fulfil the people needs.

Define what is political theory- why people obey the law?


1) Legal Duty
Lord Hailsham there is a legal duty to obey the law due to
presumptive obligation which imposed a duty to obey law
whatever the circumstances.
Example: Did not cheat in exam because u believe that it is a
legal duty as a university student to obey the examination
regulations.

2) Fear of sanction
Austin fear of the law, by its coercive power, strikes in the heart
of people and makes them obey the law
Example: The sanction for a person being caught cheating in
examination is barred from the university for 1 academic year.
Barred from university sanction which makes people scared
and thus obeying the law.

3) Moral duty
You thing it is immoral to commit a sin.

NELFI AMIERA MIZAN, 2015


JURISPRURENCE TUTORIAL