Professional Documents
Culture Documents
Section: 02
Submitted by
Rashedul Islam
Submitted to
Department of Law,
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A. Introduction:
Jurisprudence is the systematic analysis of the law where different jurists analysed the
law from different approaches. In jurisprudence, there is two famous group known as
naturalist and positivist. They explained the meaning of the law, its creation, functions,
and validity. This paper will compare ideologies of this two groups and drawback of
this two schools.
1
Introduction to the Jurisprudence, Fourth edition, Dr Avtar Singh& Dr Harpreet Kaur page 63
2
Introduction to the Jurisprudence, Fourth edition, Dr Avtar Singh& Dr Harpreet Kaur page 63
3
Introduction to the Jurisprudence, Fourth edition, Dr Avtar Singh& Dr Harpreet Kaur page 63
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The Constitution of the Peoples Republic of Bangladesh. It was in heart of people before
the liberation war. The Spirit of Bangladesh and the martyrs were embedded within the
constitution and the said spirit analyses the right and sociocultural value of Bangladesh.
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Anwar Hossian Monju Vs. Bangladesh 16 BLT (HCD) 86
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due to it violates the Articles 59 & 60 as well as the basic structure of the constitution
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B2. Whether all morality can be termed as legal rules or not?
The naturalist believes there is a close connection between and morality, however, the
law needs to pass the benchmark of the morality. This statement has a loophole, not all
legal rules do not have moral aspect. For example, a copy of certificate needs to submit
along with two duplicate copies. Where there is the moral value? It is just a function of
administrative process. Moreover, customs are recognized as a source of law by
naturalists. However, the custom is a mere practice and sometimes custom may not be
rational. Like in Hinduism Sati (practice) was a custom but it was banned due to its
brutality and dowry tradition7.
Professor Hart showed some grey-area of naturalist and if the morality is standard of
law then certain confusion arises which becomes more difficult defining the law.
Firstly, the law is a device to control societys external behaviour bit its prime function
is to prescribe not to describe. Secondly, Law has a disciplinary force which can control
societys external behaviour while this disciplinary force is missing in the morality.
Thirdly, borderline is mandatory to determine the concept of law which is missing in
naturalism theories. Hence it is seen that naturalist have two divisions, (a) prescriptive
(b) descriptive. Thus their internal theories make it more ambiguity. Fourthly, Morality
has no universal constant phase which creates more confusions.
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Though the word dowry is not used frequently as it was before, the tradition continues
in disguise.
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John Austin, Law is commands joined to threats of punishment.
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itself. Kelsen separated law from pure science and social science as natural science
deals with cause and effect9.
C1. The validity of the law under the pure science of law:
Kelsen denied to accept that sovereignty is the basis of the validity of the law. Kelsen
proposed that law gets it validity from its internal force which is known as
Grundnorm10. For example, if someone commits murder and the court will give him
death penalty by the virtue of section 302 of the Penal code 1860. As that code was
enacted by the parliament and parliament is authorized by the constitution mentioned
in the article 65(1). According to him, the legal system has its own internal force and it
never owes any force from other authority.
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Newton attempted to create a general principle of gravity which describes why a fallen
apple goes downwards but law does not describe but prescribes.
10
Grundnorm is a German word meaning "fundamental norm." The jurist and legal
philosopher Hans Kelsen coined the term to refer to the fundamental norm, order, or rule that
forms an underlying basis for a legal system.
11
A text book of jurisprudence, Indian Edition, G.W. Paton page 17
12
State vs Dosso P.L.D. 1958 S.C. 553
13
Asma Zilani Vs State of Pakistan P.L.D 1972 S.C. (139)
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and blood?14 Thirdly, by accepting the expository view there is always an opportunity to
create unjust law. For example, there was a case known as informer case15which was
challenged and it was proved that such Nazis law was unjust law. Fourthly, the Judge-
made law has no value under positivist school but it is wrong. For example, by virtue of
Article 10416 for doing complete justice the Appellate Division can issue order, issue&
direction. Fifthly, customary law, a personal law is not legal according to him but in
Bangladesh, Hindus are governed by their personal law which is mostly based their
customs.
D. Conclusion:
After taking consideration of both theories of positivism and naturalism, both parties has
made the definition of law very much complicated and both parties have some loopholes.
According to pure science school, the law becomes nothing but just a dry bone and modern
time, positivist Professor Hart admitted that minimum amount of morality can be allowed
to maintain the internal consistency of the law. On the other hand naturalist has made
morality as the parameter to determine the validity of law whereas morality has not
universal constant phase. From perspective of juvenile learner, law must be adjusted with
the race, socio-cultural circumstances as well as euthanasia and equality.
14
A text book of jurisprudence, Indian Edition, G.W. Paton page 18
15
where a woman implemented Nazis law by giving her husband to the Nazis as her
husband criticized Third Reich as per Nazis rule her husband was sentenced to death
16
The Constitution of the Peoples Republic of Bangladesh
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E. Bibliography
Books:
Case Laws:
Statute:
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