Wednesday, July 24, 2013

Perspectives That Form The Bound Side

In countless way, the law itself is the medium to shape politics, economics, and society as well as a mechanism to serves as a social mediator of relations between people. In narrowing the scope down the mentioned fields of area, one must take a narrow scope to a theoretical perspectives on law itself.

The term ‘law’ is used in many different senses. Thus there are the laws of science, the laws of morality, the laws of economics, the laws of nature and the law of nations, among other. In all these senses, ‘law’ simply means any set of uniform principles. When used in the context of relationships to society in which it works, law denotes a set of defined principles that govern and regulate human behaviour. In that context, law is used in a special sense and has a far narrower meaning.
All agree that law is a set of rules that govern the patterns of behavior in a given society. Beyond this, however, there is a general disagreement regarding the nature, content, and its function in society. The disagreement would seem to stem from a number of factors. Firstly, the law plays only one part in the society’s normative system that regulates and influences human behavior. Moral and social rules, though less explicit and less formal in their nature and content, also play a significant role in society’s efforts to control behavior. It is equally difficult to assign reasons for how law works in society and why people obey it.
Secondly, at a different times in a different cultures, law has taken very diverse forms and has been deprived from very distinct sources. Law in primitive and simple societies, for example, may be taken to refer to entirely different things when compared to law in a modern society with developed system of administration of law and justice.
Thirdly, a most scholars may view the nature of law and its function quite differently from others, dictated perhaps by his own predilections. Some define the law with reference to the ends it seeks to achieve enforcement of justice, for example, others define it in a terms of its sources from which it supposedly derives its force and authority as such as the will of the people as for example, while still others define it by reference to the authority empowered to enforce it. Factors such as these have led writers to differ in their approach to the understanding of the true nature of law, its working and its relationship to other norms.
The natural law view in the context of law itself differs than positivist view as well as differs than the view and perspective of Realist and Sociological view in aspect of context of law.
A great number of philosophers believe that there are certain higher principles that are superior to the laws made by man, the principles of natural law. Views have been expressed since ancient times about the source and authority of such principles and their relation to human laws. Although these views differ in significant ways, all have a central theme, there exist moral principles prescribed by nature which can be discovered by men by using intuition or reason with which they are by nature endowed.
The ‘legal positivism’ is the view that the study of the nature of law should be a study of law is it actualyy exist in a legal system, and not of law as it ought to be on moral ground. John Austin, the best opponen of this view, defines law as the command of the sovereign authority in a society. A command is the expression of a wish directed by the sovereign authority requiring a person or persons to do refrain from doing a certain thing. The command is backed by a threat of evil to be imposed if the directive is not complied with. The threatened evil for non-compliance is the sanction behind the directive. A command, a duty to obey and a sanction are the three essential elements of the law. The law which has these characteristics is ‘positive’ law.
The realist view on the law is a school f thoughts that originated in the United States. The best known scholars of this school are John Chipman Gray, Oliver Wendell Holmes, Jerome Frank, and Karl Llewellyn. Realism means relating to the real world, the world as it actually operates. Legal realism means the study of law as it is actually carried out and enforced rather than law as  a series of rules contained in statutes. Realist approach is thus an important part of the sociological approach to law.
Gray defines law as a rule of conduct laid down by the persons acting as judicial organ of the state. Law is ‘what the judges declare’. He emphasizes that the personality and personal views of a judge play an important role in the decision making process. Judges, while interpreting a legal rule for applying it to a fact-situation, exercise their own discretion and judgment and thus not only declare but also make law. Their decisions are law. He insist that comprises of rules aid down by the courts and that statutes ad other legal materials are merely ‘sources’ of this law.
The realist approach has been accused of causing a great deal of confusion and exaggerating the role of judges in shaping and making law. It has been argued that law is not what the courts administer but courts are the institutions which administer the law. If the judges is inclined to follow the law, it can be very well predicted in most of the cases what the judge will do. Moreover, law comes first and the courts come later. Defining the law in terms of what the courts do is like saying that the medicine is what the doctor prescribes.
At the same time, the sociological school of thoughts includes a number of approaches which are more diverse than uniform. A common heading is given to them all for the reason that all sociological jurist study the effects of law and society on each other. The common theme that runs through their approaches is that law is an empirical phenomenon and its nature can be understood only when it is viewed in terms of its relationship to society.
Some sociologist argue that in modern societies, legal rules are distinguishable from social and moral rules because modern societies to appoint a Conciliatory Committee to bring about a possible compromise in a divorce proceeding.

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