11057807-law on trial journal

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A comparison of the natural law and positivist approaches to the question what is

law?

Natural Law and Leal !ositivism are the two leadin theories of law" #hey provide

contrastin definitions of law" #he older of the two$ #he Natural Law theory believes

that the laws of man are only valid where they conform to a hiher or divine set of

morals" St" #homas Aquinas$ an early %ritish proponent of the theory$ wrote that the

law is$ &nothin else than an ordinance of reason for the common ood"'()urther$

Aquinas promoted the words of St" Auustine that an un*ust law is no law at all" #his

simple principle is the basis of of the Natural theory of law" +t was e,panded upon to

say that moral individuals had a duty to disobey un*ust laws so that they may become

obsolete$ unenforceable and lastly$ repealed" Martin Luther -in .r" encouraed his

supporters to do this in his Letter from a Birmingham Jail in (/01" 2e declared that$

&3ne has not only a leal but a moral responsibility to obey *ust laws" 4onversely$ one

has a moral responsibility to disobey un*ust laws"'2 #he civil rihts movement headed

by -in is a prime e,ample of this principle in action" osa !ar6s powerfully

demonstrated the absurdity of racial sereation when she was arrested for the

crime of refusin to ive up her seat on a bus to a white man in (/55"

Natural Lawyer .ohn Loc6e also placed duties upon law ma6ers" 2e believed

that it was common moral round that no one should in*ure another in their life$ health

liberty or possessions and that this should be protected by law" +n the second half of

his boo6 The Two Treatises of Government$ he put forward that the ob*ect of any law

should be$ &not to abolish or restrain$ but to preserve and enlare freedom$'1therefore

those laws that do the two former thins but not the latter$ are invalid" #his is pertinent

to laws which are created to control and subdue a certain roup without protectin the

freedoms of any individual" An e,ample of such a body laws would be the laws on

2omose,uality introduced by 7anda in )ebruary 89(:" %ecause consentin

1 Aquinas$ St" #$Summa Theologiae!t" 8 ;" 8$ Art" :" !ublished in: Selected Political Writings$ tr""

dited$with an +ntroduction$ %y 4"%" Mc!herson$ 2ac6ett !ublishin 4ompany$ +ndianapolis and 4ambride$(/G9


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2omose,ual activity is victimless$ it will be mostly unreported" #his will ma6e enforcin

the laws almost impossible"

Lon )uller led the transition away from the theoloical oriins of classical

Natural Law theory in the 89th4entury" )ullers !rocedural Naturalism was concerned

not with the substance of law but the way it is created" Hhat was crucial$ accordin to

)uller$ was that potential laws be independently scrutinised and evaluated before they

were enacted$ because$ &the effect will enerally be to pull those decisions towards

oodness"':2e identified eiht conditions that laws must satisfy" Laws should be

applicable to all$ widely accessible$ consistent$ lastin$ enforced as worded and

citiIens must be capable of obeyin them"5

#he theory formed to challene the Natural Law #heory$ Leal !ositivism" #he theory$

in its earliest form$ .ohn Austins 4ommand #heory$ defined law as the eneral

commands of an unfettered soverein bac6ed by a sanction0" #he soverein must be

habitually obeyed and must have unrestrained power to ma6e law" #he sanction must

be reularly imposed for the law to retain validity" !ositivists believe that laws made in

this way are leitimate reardless of their moral acceptability" )or e,ample$ the

Nurembur laws in NaIi =ermany would be leitimate to positivists as it was imparted

by the soverein of the day" +n contrast to Natural Lawyers$ the fact they needlessly

impined upon the inalienable rihts of .ewish citiIens would ma6e them void"

!rofessor 2art$ a protJJ of Austin$ was critical of his 4ommand #heory" 2e

hihlihted the absurdity that if the theory were true$ an armed ban6 robbers

demands for money would be leitimate law" 2e wrote that the content$ oriin and

rane were 6ey to definin what the law was" 2e re*ected the notion of an unfettered

Soverein" No efficacious leal system could e,ist without secondary rules of

reconition$ chane and ad*udication to bind the Soverein" 4ontained in this is the

ac6nowledement that people cannot be made to obey throuh threats alone" Hhen

they lose all respect for the rule of law$ the rule of law disappears" A smallKscale

4)uller$ L &!ositivism and )idelity to the Law A eply to !rofessor 2art' @(/5GC ( 2arv" L" ev"019$ 010 "5)uller$ Lon$ Morality of Law$ rev" ed" @New 2avenD ale 7niversity !ress$

(/0/C$ p" 1/"6Austin$ .ohn " #he !rovince of .urisprudence


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e,ample of this was seen durin the London iots in summer 89(($ which bean

because many people believed a man had been unlawfully e,ecuted by police$

punished without fair trial" 2arts other criticism was that not all laws were prohibitive

or even commands$ many merely reulate and instruct the appropriate procedure to

be followed in a circumstance" #hese ideas share much common round with the

ideas of natural law e,ponents such as Martin Luther -in"


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An Analysis of how the .ustice and Security Act 89(1 is accused of offendin the rule

of law

Lord %inham includes the riht to a fair trial$ in civil as well as criminal cases$

amon his G essential principles of the rule of law" 2e notes that 4hapter 1/ of the

Mana 4arta ma6es no e,ceptions to this riht for times of emerency or civil strifeG"

+t is also enshrined by Article 0 of the >42/" #he .ustice and Security Act 89(1 has

been accused of bein contrary to the rule of law and the convention$ in that it denies

some citiIens a fair trial" #he bill was defeated in the 2ouse of Lords and opposed

by the Labour party and many Liberal


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suspicion" Most believe that evil deeds are done in dar6ness" Additionally$ where the

reasons for a conviction are secret$ the public may lac6 awareness of how the law is

interpreted in the courts" #his is a partial breach of the rule of law principle that the

law be accessible to all" Lord


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offend the rule of law and should only be used as a last resort where its nonKuse

would result directlin loss of life"

#he history and tradition of Afhanistan has led to a comple, set of overlappin and

conflictin bodies of law and leal institutions

Afhanistan has historically had 1 main forms of law$ the oldest$ Sharia or +slamicLaw$ customary law and state law" #he coe,istence of multiple rules of law in one

soverein nation is an anathema to western observers who are accustomed to a

sinle system of law and dispute resolution effective throuhout a country" 2owever$

there e,ists both a eoraphical separation and habitual cooperation between these

codes in Afhanistan"

Sharia law is a leal system based on the +slamic scholars interpretation of

the -oran and the life of the prophet Muhammad" Sharia courts were introduced in


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urban areas followin the formation of Afhanistan in (:(" Sunni 2afi$ one of five

sunni schools of sharia$ is the most prevalent in Afhanistan(G" 4ases are tried in a

rather unsophisticated manner by contemporary standards" #hey are inquisitorial" +n

these proceedins there are no lawyers$ no crossKe,amination$ no doctrine of

precedent and the law is not codified(/" )urther$ courts value witness testimony

@preferably maleC far hiher than forensic or other physical evidence" #his is

problematic in that it can produce false positive identifications and is useless in tryin

rape cases89

Hilliam Malley writes that althouh sharia is$ &subtle and comple,$' it was

instrumental in upholdin the principles of contractual obliations durin the (/G9s8("

Hithout it the countrys economy may have collapsed" #he law was also the

dominant mode of criminal law enforcement" #his ave effective crime prevention

despite unreliable enforcement" #he fact that Sharia chimed with the peoples

+slamic values ave it reat authority88" 2owever the fear of draconian punishments$

which to western observers are synonymous with Sharia$ may also have been the

reason for the adherence to the law"

Afhani State law draws much from +slamic Law" #he(/0: 4onstitution states

that$ &No law shall be repunant to the basic principles of the sacred reliion of

+slam'81and that where there is no applicable state lawB 2anafi Sharia law should be

applied8:" Many of the state appointed *udes are also orthodo, clerics" #he states

role in dispute resolution was born in the early 89th4entury when the Amir$ Abdul

ahman -han issued commandments to the nation" #he constitutions of (/81$ (/1(

and (/0: e,panded the scope of state influence over dispute resolution and the

formation of rules of conduct" +t promulated a sinle codified law and introduced a

trained leal profession "2owever$ the state law failed to ain any traction beyond the

17Ashraf =hani @(/GC" +slam and State%uildin in a #ribal Society AfhanistanD (GG9(/9(18#he Ma6in of a 4onstitution in Afhanistan$ .A #hier K NL Sch" L" ev"$ 8990 K Available in LS>esearch 3nlineD .une 89(919%ill Harner$ Sharia Law for NonKMuslims @A #aste of +slamC 4S!+ !ublishin @.une 0$ 89(9C20Mohammad 2ashim -amali @(//GC" P!unishment in +slamic Law Q A 4ritique of the 2udud %ill of-elantan$ MalaysiaP" Arab Law ;uarterly" Fol" (1$ No" 1" pp" 891Q81:"21The Rule of Law in Afghanistan: !issing in Action "2#$$% &dited ' W !ason( )g *+22 #homas ." %arfield &An +slamic state is a state run by ood MuslimsD eliion as a way of life andnot an ideoloy in Afhanistan' in Rema,ing !uslim Politics: Pluralism( -ontestation(.emocrati/ation $ edited by

obert 2efner" !rinceton$ N.D !rinceton 7niversity !ress$ pp" 8(1K81/23Article 0: 4onstitution of Afhanistan atifiedD 3ctober (/0:24+bid" Article 0/


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urban population centres" ural villaes were more li6ely to use Sharia for uidance

on correct behaviour and to resolve their dispute accordin to customary law

methods85"

#he soKcalled 4ustomary Law was dominant in mountainous rural

Afhanistan" Assemblies of respected community elders were used to resolve

disputes and ma6e important decisions that concerned the entire community" #hese

.iras focus on : main areas$ 2ospitality$ Fenence @for advances on ones women$

wealth and landC$ !rotection of land and property and mercy to those who request

it80" An e,traordinary e,ample of observance of the latter$ was where 7S Navy S>AL

Marcus Luttrell was recused from an ambush an nursed bac6 to health with severe

in*uries by !ashtun villaers near Sawtalo Sar"8

#he main strenths of customary

hearins are that they allow both sides the opportunity to e,plain themselves fully

and brin the dispute to a resolution with the minimum of residual illKfeelin8G"

+t is true to say that the different systems of law in Afhanistan before 899(

overlapped" 2owever$ to describe them as conflictin is misleadin" #he country

was far from united" +t consisted of many different cultures" )rom the modern urban

areas to the tribal communities in rural areas alon with the strict +slamic families that

live in either" >ven if the state had the resources to promulate and enforce a sinle

rule of law beyond the cities$ they could not have created laws and procedures that

were appropriate to everyone8/" #he two other forms of law unburdened the state

from havin to delve into the detail of these differin cultures$ freein it to ma6e law

prohibitin only the most danerous and damain acts"

25#homas %arfield$ Afhan 4ustomary Law and +ts elationship to )ormal .udicial +nstitutions"!roduced for the 7nited States +nstitute for !eace$ 899126#he ale =lobalist$ Fol (( +ssue 1 @89((C pGK/$ Marissa yewitness Account of 3peration edwin and the Lost 2eroesof S>AL #eam (9$ Little$ %rown$ 89928.im =rant and Hilliam Mc4allister$ #ribal >naementD #he .ira and Shura$ Small Hars .ournal$

89(929


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#he issues surroundin the *udicial interpretation of the word family in )itIpatric6 v

Sterlin 2ousin Association Ltd"

+n the case of )itIpatric6 v Sterlin 2ousin Association Ltd19in (/// #he 2ouse of

Lords e,amined whether a cohabitin same se, partner succeed to a tenancy upon

the death of the tenant" #he case rested on the interpretation of terms in two

subsections of the ent Act (/" +f Mr )itIpatric6 was found to be either the

spouse1(of his boyfriend of (G years or a member of his family$18 the defendant

would have to allow him to ta6e on the tenancy" #he difficulty for the court was that

public support for ay rihts had rown huely since (/ and to deny the tenancy

to be inherited would ma6e the law indirectly discriminatory in liht of the wide

interpretation of it in relation to heterose,ual couples"

#he Acts definition of a spouse$ &any person livin with the oriinal tenant as

a husband or wife$'11 immediately ruled the couple out" Lord Slynn$ ivin the

leadin *udement$ ruled that$ althouh they lived as thouh married$ because they

30(///O : All > 9531

#he ent Act (/ S" 8 @(C32+bid"" S"1@(C33+bid" S"8@8C


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were both male$ they did not live as husband and wife" 2owever he did say that had

the term stood without e,planation$ &the matter miht be more debateable"1:' 2e also

doubted whether it was socially desirable or be conruent with the 2uman ihts Act

(//G15@not in force at that timeC" Lord Slynn$ bean by statin that .udes$'must

not substitute their own views to fill aps$'10instead they need to investiate

!arliaments intention" Slynn ruled that the !arliament of (/ cannot have intended

the terms husband and wife to include sameKse, couples or + would have said so

e,plicitly1"#his round of appeal was dismissed quic6ly and without consideration of

what if any differences @bar the ability to procreateC the couples relationship had to a

married couples" 2owever as is common practice$ the court was able to find the

same result without ma6in waves throuh the corridors of power and steppin on

!arliaments toes"

Addressin the second issue$ the definition of family$ Lord Slynn pointed out that it

was immaterial whether sameKse, coupl6es were viewd as family in (/89 when the

first ent Act was passed" Hhat mattered was$ as the term was not defined$ what

was its ordinary construction at the time of the matter @(//:C1GLord Nicholls ave an

interestin view on this" 2e provided that$ family was a$ &term of art$'1/in$ &ordinary

usae$':9with a$ &fle,ible meanin$':(and that its use was intended so that$ 3n the

death of the tenant his family cannot be evicted without further ado"':8

Lord Slyyn went on to trace the broadenin of the terms definition in postKwar

case law" Since the couple had no formal ties@of blood$ marriae or adoptionC$ he first

had to e,plain that this was not a prerequisite to a findin that they were family" +n

%roc6 v Hollams:1a child cared for but not adopted by the tenant was held to be

34(///O : All > 95 at (9352uman ihts Act (//G Article G362e cites Lord Hilberforce in$ oyal 4ollee of Nursin of the 7nited -indom v 5:5 at 50537)ollowin 2arroate %4 v Simpson @(/G:C ( 2L 89538As was the view of Lord Steyn in v +reland$ v %urstow (//O : All > 885 at 818$39(///O : All > 95 at (40+bid"41

+bid"42+bid" at (43(/:/O 8 -% 1GG


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family while this was not so where the tenant had a house6eeper who he chared

rent and didnt address by name::" #hes demonstrate that an emotional pro,imity is

6ey to the question of sfamily" Broc, utilised an ob*ective @reasonable manC test of a

possible family scenario" Slynn also noted the discrepancy between rulins" )or

e,ample$ a cohabitin couple of five years were found not to be a family because

they had 6ept their formal independence:5" 3n the other hand$ a married man who

cohabited with another women were said to be family :0" +n (/G the need for a$'a

Psufficient state of permanence and stability$' was required to prove family life"


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ace was a ma*or factor in the failure of the 4riminal .ustice System to deliver

*ustice to the family of Stephen Lawrence

#he family of Stephen Lawrence were badly let down by the metropolitan police after

his murder in (//1" Accordin to #he Macpherson eport this was *ust a symptom

of a wider problem of the polices institutional racism" Accordin to 4ritical ace

#heory @4L#C$ society as a whole is to blame" #he theory arues that racism is

ordinary and e,ists in the mind of all people" #his is a result of the portrayal of blac6

people in the news and entertainment media as well as by observin the inequality

between white and blac6s" +n this sense it becomes a selfKfulfillin prophecy"

%ecause there are fewer blac6 people in hiher status *obs than in lower ones$

people attribute this to them bein less able intellectually and the cycle continues"

Li6e the Mar,ist and )eminist leal theories$ 4L# arues that the law is made

and administered by and for the benefit of the rulin elite" #his is a fair assessment

in the case of race in %ritain today" As of 89(1$ ethnic minorities made up (G of the

population but only :"8 of !arliament$ :"G of the .udiciary and$ most surprisin$

5 of the !olice )orce59" #he theory refutes the notion that these roups have any

enuine interest in defeatin racism" Leadin theorists ichard thnic Minorities +n !olitics$ =overnment and !ublic Life$ 2ouseof 4ommons Library$ (0th3ctober 89(1


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placate blac6 people and liberals and to sustain the myth that society is movin

towards equality$ &little li6e the thermostat in your home or office" #hey assure that

there is *ust the riht amount of racism" #oo much would be destabiliIin Q the

victims would rebel" #oo little would forfeit important pecuniary and psychic

advantaes for those in power"'5(


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well as the capability to catch the culprits" As Mrs Lawrence said had it been a white

boy that were 6illed they would have loc6ed someone up by now" #he inquiry

concluded that a culture of unconscious +nstitutional acism rather than the overt

racism of individual officers was blame" #hey cited four sets of facts in evidence for

races envolvement5" )irst was the treatment of the family at the hospital and of the

witness$


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%iblioraphy

1. A comparison of the natural law and positivist approaches to thequestion what is law?

Aquinas$ St" #$Summa Theologiae!t" 8 ;" 8$ Art" :" !ublished in: Selected

Political Writings$ tr"" uropean 4onvention on 2uman ihts$ as amendedC@>42C art"

0 enacted in 7- law by S"1 #he 2uman ihts (//G

Lord %inham$ #he ule of Law Lecture" (0E((E90 4entre for !ublic Law

Al awi and others @espondentsC v #he Security Service and others@AppellantsC 89((O 7-S4 1:
http://abacus.bates.edu/admin/offices/dos/mlk/letter.htmlhttp://abacus.bates.edu/admin/offices/dos/mlk/letter.html


19/21

+bid" 89((O 7-S4 1: @transcriptC at (9

Scott and another v Scott (/((K(1O All > ep ( at /

Al awi and others v Security Service and others 89((O 7-S4 1:$

@#ranscriptC at" /1

-en 4lar6e$ #he esearch 3nlineD .une 89(9

%ill Harner$ Sharia Law for NonKMuslims @A #aste of +slamC 4S!+ !ublishin

@.une 0$ 89(9C

Mohammad 2ashim -amali @(//GC" P!unishment in +slamic Law Q A 4ritique

of the 2udud %ill of -elantan$ MalaysiaP" Arab Law ;uarterly" Fol" (1$ No" 1"pp" 891Q81:"

The Rule of Law in Afghanistan: !issing in Action "2#$$% &dited ' W !ason(

)g *+

#homas ." %arfield &An +slamic state is a state run by ood MuslimsD eliion

as a way of life and not an ideoloy in Afhanistan' in Rema,ing !uslimPolitics: Pluralism( -ontestation( .emocrati/ation$ edited by

obert 2efner" !rinceton$ N.D !rinceton 7niversity !ress$ pp" 8(1K81/

Article 0: 4onstitution of Afhanistan atifiedD 3ctober (/0:

+bid" Article 0/

#homas %arfield$ Afhan 4ustomary Law and +ts elationship to )ormal

.udicial +nstitutions" !roduced for the 7nited States +nstitute for !eace$ 8991

#he ale =lobalist$ Fol (( +ssue 1 @89((C pGK/$ Marissa yewitness Account of 3peration edwin

and the Lost 2eroes of S>AL #eam (9$ Little$ %rown$ 899

.im =rant and Hilliam Mc4allister$ #ribal >naementD #he .ira and Shura$Small Hars .ournal$ 89(9


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oyal 4ollee of Nursin of the 7nited -indom v 5:5

2arroate %4 v Simpson @(/G:C ( 2L 895

v +reland$ v %urstow (//O : All > 885 at 818$

%roc6 v Hollams (/:/O 8 -% 1GG

oss v 4ollins (/0:O ( HL :85

2elby v afferty (//O ( HL (1

Hatson v Lucas (/G9O ( HL (:/1

(/0O ;% 591

=ammans v >6ins (/59O 8 -% 18G

Hatson v Lucas (/G9O ( HL (:/1

. /ace was a ma(or factor in the failure of the riminal Justice System todeliver (ustice to the family of Stephen -awrence

.ohn Hood and ichard 4rtac6nell$>thnic Minorities +n !olitics$ =overnment

and !ublic Life$ 2ouse of 4ommons Library$ (0th3ctober 89(1

ichard


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11057807-law on trial journal

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