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Coursework

A comparison between Natural School of Law and Pure Science of law

Course Title: Jurisprudence

Course Code: Law 302

Section: 02

Semester: Fall 2017

Submitted by

Md. Jahid Hasan Suvo

Student ID: 2016-2-66-031

Rashedul Islam

Student ID: 2016-2-66-019

Submitted to

Mohammad Ataul Karim,

Department of Law,

East West University.

Date of Submission: 29th November, 2017


Table of Contents
A. Introduction ........................................................................................................................... 3
B. Theme of Natural School ...................................................................................................... 3
B1. Validity of law under natural School ............................................................................... 3
B2. Whether all morality can be termed as legal rules or not? .............................................. 4
B3. Backdrops of the natural school.4

C. Themes of pure science of school..4


C1. Validity of law under pure science of law...5
C2. Drawback of pure science of law5
D. Conclusion.....6
E. Bibliography...........7

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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.

B. The theme of Natural School:


The term Natural Law derived from the Roman term jus natural and Aristotle is
considered to be the father of the natural law. Natural Law school maintains that law
should be based on morality and ethics and according to them the law is based on What
is correct? According to Aristotle man is part of nature and he possesses active
reason by which he can shape his will1 and Stoic said There exists a rational and
purposeful order of the universe2 and Saint Thomas Aquinas said, the purpose of the
law is the well-being of the society3. It is clear from their statement that human nature
is not confined to slavery.

B1. Validity of law under natural School:

According to the naturalist, a rule is a law if commonly validated by morality. Thus,


the law gets validity from morality. The modern naturalist, Saint Thomas Augustine
said that an unjust law is not at all. For example, the alcohols except for using and
prostitution are prohibited in Bangladesh by the virtue of Article 184. In Anwar Hossain
Monju Vs. Bangladesh5 it was held that appointment of ministers to supervise was
invalid as it would contravene the spirits of the provision of the Constitution of the
Peoples Republic of Bangladesh6

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
4
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.
5
Anwar Hossian Monju Vs. Bangladesh 16 BLT (HCD) 86
6
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.

B3. Backdrops of the natural school:

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.

C. Themes of pure science of school:


Hans Kelsen established this school, although being positivist he refused to accept the
ideology of Austin8. Kelsen wished to separate law from everything as analysing from

7
Though the word dowry is not used frequently as it was before, the tradition continues
in disguise.

8
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.

C2. The drawback of pure science of law:

Firstly, determining Grundnorm is an initial hypothesis. The initial hypothesis is abstract,


at the same time if we ascend the ladder of the hierarchy of norms, it becomes more
concrete11. For example, in State vs Dosso12, it was held that Martial law was the
Grundnorm and later in Asma Jilani Vs State of Pakistan13 the Supreme Court held that the
constitution is the Grundnorm and Martial law regime was invalid. Secondly, Kelsen
wanted to make the science of law very pure for this reason he separated everything from
the law. Hence, the subject matter for jurisprudence is the legal norm, separated from all
practical question. However, are we not left with dry bones of the law deprived of the flesh

9
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:

1. Introduction to the Jurisprudence, Fourth edition, Dr Avtar Singh& Dr Harpreet Kaur


2. A text book of jurisprudence, Indian Edition, G.W. Paton

Case Laws:

1. Anwar Hossian Monju vs. Bangladesh 16 BLT (HCD) 86


2. State of Pakistan vs. Dosso P.L.D. 1958 S.C. 553
3. Asma Jilani vs. State of Pakistan P.L.D 1972 S.C. (139)

Statute:

1. The Constitution of the Peoples Republic of Bangladesh

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