Part B

Question 1

The question that has received the most substantive attention from philosophers is – what is

law? Several schools of thought have provided rival answers to this question.

Firstly, the school of natural law. Natural law theory asserts that there are laws that are

immanent in nature, to which enacted laws should correspond as closely as possible. This view is

frequently summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as

contrary to natural law.

Stoicism provided the most complete classical formulation of natural law. The Stoics argued

that the universe is governed by reason, or rational principle; they further argued that all humans

have reason within them and can therefore know and obey its law. Because human beings have the

faculty of choice (a free will), they will not necessarily obey the law; if they act in accordance with

reason, however, they will be "following nature."

For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine

wisdom") which is knowable by human beings by means of their powers of reason. Human or

positive law is the application of natural law to particular social circumstances. Like the Stoics,

Aquinas believed that a positive law that violates natural law is not true law. This view is frequently

summarized by the maxim: an unjust law is not a true law, in which 'unjust' is defined as contrary to

natural law. For example, in the case of Che Omar Che Soh v Pp, pertaining the issue of the

supremacy of Federal Constitution over religious matter which can only be applied in specified

matters listed in the 9th Schedule. This case manifest the contradicting jurisdiction between natural

law (God’s law) and the human made-law (Federal Constitution) where in this case, human made law

prevails. I did not agree with the decision of the court in this case since it shows that when there are

conflicting issues between the law of God which is revealed through religious practices by the

believers, it is confined within what is stated in the constitution – the human made law. Like what

Antigone had stated in his document, over and above the written law, there were some which were

unwritten, no one knew when they were enacted but it lives eternally – none of today or yesterday it

is, but live eternal. None can date its birth. The excerpt from Antigone’s document of natural law

strongly proposed that above every human made-law, there is the law of God.

Secondly, the school of legal positivism. Legal positivism is the view that the law is defined

by the social rules or practices that identify certain norms as laws. Historically, the most important

legal positivist theory was developed by Jeremy Bentham, whose views were popularized by his

student, John Austin. Austin's version of legal positivism was based on the notion that the law is the

command of the sovereign backed by the threat of punishment. This continued with the concept of

law brought up by H.L.A. Hart.

Jeremy Bentham figured that laws should be socially useful and not merely reflect the status

quo; and, that while he believed that men inevitably pursue pleasure and avoid pain, Bentham

thought it to be a "sacred truth" that "the greatest happiness of the greatest number is the

foundation of morals and legislation." Bentham supposed that the whole of morality could be

derived from "enlightened self-interest," and that a person who always acted with a view to his own

maximum satisfaction in the long run would always act rightly. For example ISA for some quarters

might seem as a unjust law (naturalist) but to Jeremy Bentham perhaps, ISA is actually socially useful

as a means of controlling certain subversive movement as well as ensuring the security of the

country and not for the government to abuse ISA to ensuring their status quo of power by

suppressing any legitimate movement in exercising their individual rights. For example, in the case of

Mark Koding v Pp pertaining the issue of a member of parliament who wanted Article 152 to be

abolished. The scenario of law cases has constantly in favour of him since the national language is a

sensitive issue and shall not be questioned by everyone. However, the point that the people

forgotten is the human right given to each citizen – freedom of speech and expression. But I agree

with the decision of this case and I uphold the theory of legal positivism that the law should be used

to stop sensitive issues from being questioned and thus, causing hatred and chaos among the

people. But, to restrict freedom of expression of the people, it shall not be used as a shield for the

government to stop any legitimate movement from exercising their right.

John Austin figured that law is a command of a political sovereign and is enforceable by

sanction. He mentioned three features of law. It is a type of command. It is laid down by a political

sovereign. It is enforceable by sanction. When any Bill is passed by the parliament it becomes an Act,

which, then, functions as a full-fledged law. The Act is law because it is the command of the

parliament (sovereign) It is law because it is properly passed (laid down) by the parliament.

Violations of the rules of the Act are met with penalties (sanction). For example ISA which some

quarters might see as a unjust law (naturalist) but from John Austin’s ISA is a valid law as it is a

command of the government (parliament) to be followed and if not will entitle a person to be

punished (sanction).

Thirdly is the school or legal realism. Legal realism is the view that the law should be

understood as it is practiced in the courts, law offices, and police stations, rather than as it is set

forth in statutes or learned treatises. It has become quite common today to identify Justice Oliver

Wendell Holmes, Jr., as the main precursor of American Legal Realism. Realist possesses a belief that

the law in the books (statutes, cases, etc.) did not determine the results of legal disputes. Jerome

Frank is famously credited with the idea that a judicial decision might be determined by what the

judge had for breakfast. They believed in legal instrumentalism, the view that the law should be used

as a tool to achieve social purposes and to balance competing societal interests.

Fourthly is the school of Utilitarianism. Utilitarianism is the idea that the moral worth of an

action is determined solely by its contribution to overall utility. Utilitarianism is described by the

phrase "the greatest good for the greatest number of people". Therefore, it is also known as "the

greatest happiness principle". The origins of utilitarianism are often traced as far back as the Greek

philosopher Epicurus, but, as a specific school of thought, it is generally credited to Jeremy Bentham.

Bentham found pain and pleasure to be the only intrinsic values in the world: "nature has placed

mankind under the governance of two sovereign masters, pain and pleasure." From this, he derived

the rule of utility: the good is whatever brings the greatest happiness to the greatest number of

people. For example in the case of Eng Keock Cheng v Pp, delegated legislation may to certain

extent, under the authority of emergency, violates human right. I agree with the decision of the

court in this case since the purpose of restricting human right during the emergency, for example

the right to movement, is to ensure the whole of the society to be in a secured situation until the

emergency ceased. This is in line with the principle of “greatest happiness’ in the sense that the

government is trying to protect majority of the people by denying certain right, only for the benefit

of the nation and at the end, it is the people who enjoy “the greatest happiness’ – which would be in

the form of security.

Lastly, Legal interpretivism is the view that law is not a set of data or of facts, but what

lawyers aim to construct or obtain in their morality laden practice. The debate in recent years

concerns interpretivism, a view that is strongly associated with Ronald Dworkin. An interpretivist

theory of law holds that legal rights and duties are determined by the best interpretation of the

political practices of a particular community. Interpretation, according to Dworkin's law as integrity

theory, has two dimensions. To count as an interpretation, the reading of a text must meet the

criterion of fit. But of those interpretations that fit, Dworkin maintains that the correct

interpretation is the one that puts the political practices of the community in their best light, or

makes of them the best that they can be.