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Paper prepared by Prof. Omar Hasan Kasule Sr. MB ChB (MUK), MPH (Harvard) DrPH (Harvard) Chairman, Institutional Review Board - KFMC
DEFINITION AND CLASSIFICATION - 1
• Law is a study of rules made by society that are binding on individuals. The rules are enforced by a political or social authority. There are sanctions for breaking the rules. Law is related to political and religious authorities. Law determines the social structure, social behavior, and the nature of government.
• Some laws have a religious source like the Christian canon law, the Islamic shari’at, the Jewish law (in Talmud and Midrash).
• Each country and each area of human activity has specific laws.
• Jurisprudence is the academic study of the law. Analytic jurisprudence studies the axioms, terms, and methodology of the law.
• Scholars of the law try to identify and describe the underlying structure and system of law that makes it consistent and orderly. Some laws have such a structure whereas others arising as empirical solutions to societal problems may not have a discernible underlying structure.
• Sociological jurisprudence studies the impact of law on the behavior of individuals and societies.
• Jurisprudence also studies the theory of justice i.e. how does the law relate to its stated values and philosophy.
DEFINITION AND CLASSIFICATION - 2
• Municipal law is law applying within the boundaries or jurisdiction of a sovereign state.
• Public international law consists of laws and rules that apply between and among sovereign nations. The nations are given a legal personality and they voluntarily agree to respect the international law. They agree to submit themselves to an international judicial authority and to face sanctions if found guilty.
• Private international law is an area that deals with resolving conflicts among laws of different countries when dealing with persons affected by such conflict.
• Quasi international law covers laws on relations between nations and companies and other organizations that lack international personality. Among issues covered by international laws are navigation and exploitation of the seas, self-defense, prisoners of war, diplomatic immunity, extradition, asylum, etc.
HISTORICAL DEVELOPMENT
• The ancient Greeks developed some ideas about natural law and natural justice. Greek law did not develop into a rigorous legal system.
• The Romans on the other hand were very efficient lawmakers. Ro man tribal law was developed and was applied all over the Empire.
• After the decline of the Roman Empire the Christian Church acquired a lot of political power and developed a set of canon laws.
• During the renaissance and after it the focus was on the human and human-made law rather than divine law. Man-made or positive law was supposed to express natural law. European philosophers interpreted existing laws logically. Others like Karl Marx made an economic interpretation of the law.
• Law was also interpreted from sociological and psychological perspectives.
• In the 20th-century legal scholars emphasized realism in law instead of looking for legal theories. Law is seen as what is actually decided by the courts and it changes with time and circumstances. S sociological studies relate the implementation of laws to what is actually happening in society.
• International law developed as a means of limiting aggressive war s and was based on bilateral or multilateral treaties.
PARADIGMS AND METHODS
• Law and morality are intertwined and in an Islamic perspective are the same thing. In a secular setting, questions arise about how far law should reflect community morality. Questions are also asked whether there is a moral duty to obey the law. Citizens also have to decide whether to obey the law if it conflicts with their morality. The matter is complicated by the fact there is no universal agreement on what constitutes morality. Some base it on religion whereas others base it on natural law.
• Natural law is a philosophical term that implies that all humans have an innate sense of what is just and what is right derived from their basic nature. Natural law contrasted to positive law which derives from rules of religion and the state. The innate human knowledge of what is right and wrong is effective in most cases. There arrives from rules of religion and the state. The innate human knowledge of what is right and wrong is effective in most cases. There are however vague situations in which it is not reliable and divine Law is needed for guidance.
• International law in reality is promulgated to legitimate arrangements made to balance power and aggression among nations. Its effectiveness is weakened because the states party to it retain their sovereignty and have the option of pulling out. It thus seems that states will obey international law as long as it is in agreement with their national sovereign interests. They will disobey or ignore it if it threatens their interests. Differences in the economic and military power of nations make equality before international law a mere formality in reality the stronger have their way as they like. Jurists have tried with no unanimity to define principles of international law.
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