Jurisprudence

ü   Theories:

1.             Power as cultural hegemony

2.             Why there was no communist revolution in Europe (even until now no communist government has achieved political power in Western Europe compared to socialist government)

ü   Said that ideological hegemony (leadership/dominance by one country/several groups over others) is like a mythical creature half horse half human. Meaning the back part is raw power and the front is coercion and force. As example: a human face capitalist power through consent such as rule of law.

ü   Example the incident in Russia to overthrow the Tzars, there was only element of force and consent of human face is missing that is why the communist revolution there succeeded

ü   Illusion of consent creates the impression that the interest of the working class is the same as the capitalist

ü   Belief systems gain power as more people come to accept the particular view associated with belief system as common knowledge

ü   Through this belief, common knowledge power is exercised by person with authority such as doctors, priests and what not and showing a standard right + wrong behavior. The idea crystalizes

ü   Through knowledge, power is assumed to it forms a particular way of seeing the world and the particular way of life associated with such truths becomes normalized

ü   Alvin Toffler: power is exercised (historically) through violence à then through wealth à to knowledge à to technology. But it can be positive transformative as well

-                 Believes in covert/subtle power rather than over power which works through people rather than on them

-                 Directly/indirectly applied his theory of power to dissect about madness, prison & punishments and sexuality

-                 Author of ‘Madness and Civilization”, “Discipline and Punish”

Foucault Discourse on Madness:

-            Asylum acts as a social contract and as a form of exercising power given to the doctors in charge. Hence doctor is not only the medical specialist but also a wise man since he has the knowledge as control of power (this is the link between power and knowledge)

ü   2^nd was in Mongolia 1920

ü   3^rd was in People’s Republic of China in October 1949 after a long revolution

ü   4^th Kerala in India 1957 and Bengal + Kerala ruled by Marxist government

ü   5^th Democratic People’s Republic of Korea in 1950’s

ü   6^th North of Vietnam

ü   7^th South of Vietnam fell to north Vietnam’s hand April 1975

ü   8^th Laos December 1975

ü   North Korea no longer practicing the rigid planning system (which is a fundamental part in the communist system)

ü   Burma was de facto de jure a one party state from 1974-1988

ü   Marxism should not be necessarily equated with communism or one party states

ü   There are underground communist movements in Burma, Thailand, and recently Nepal

ü   1989 was the collapse of communism in Eastern Europe

ü   1991 collapse of communism with the Soviet Union collapse

ü   Sino-Soviet split in the communist camp in 1950’s

2.             Economic interpretation of history

3.             Marxist political economy on state ownership and central planning

4.             Class struggle

2.             Law as reflection of class interest

3.             Law as instrument of oppression

4.             Establishment of classless society

ü   Challenges the western jurisprudence on the part “universal foundation for law through reason”

ü   Does not accept the legal theory of politically neutral and it is an objective way to resolve conflicts

ü   Marx view law part of superstructure and CLS scholars view it as essential for the continuation of a liberal society

ü   Duncan Kennedy: Law is an aspect of the social totality not just the tail of the dog

ü   Critique Marxism saying domination and exploitation is not the monopoly of any theory but characteristics of all theories which makes claim which makes truth on the grand scale. (talking on truthfulness being the main idea)

ü   Critics both the communism and Marxist theory – see example radical Islam & Christianity

ü   Argued that the law is portrayed as rational, coherent, just and necessary but in fact it is arbitrary, unnecessary and unjust

ü   Claims that concept such as the Rule of Law, basic civil & political rights that so called gives freedom of speech and what not = tools that serves as a political and economic requirement which deceives both ends (people and the law itself)

ü   Although those rights are argued as individual fulfillment, still serve as political and economic requirements

ü   For example: the minimum wage legislation was strike down as interfering in the freedom of contract but what would it be said on the development of unfair contracts?

ü   Example rights of coloured people achieved in the constitution not by belittling them because CLS don’t agree on this making a big fuss

ü   Take example of rights of the white and black children in school as well and the promulgation of Civil Rights Act 1964.

ü   Duncan Kennedy à said that people believed such concepts of “free market”, “freedom under the law” as true

ü   Marx à said that it is false consciousness because he believes capitalist states embraced ideology that they are responsible for their situation

ü   Noam Chomsky à consent can also be manufactured (meaning fake)

ü   Criticized on the formalization of the law because it does not take into consideration on the values, social goals or political & economic concept

ü   Played an important role in earlier development of law

ü   Malay adat has been described as total way of life

ü   Savingy did not accept natural law instead he said a legal system is part of the culture of the people

ü   Savingy said: law developed as a response to the impersonal powers to be found in the people’s national spirit which is linked to the biological heritage of the people called Volksgeist

ü   Savingy: studied the course of development of roman law adapted to German conditions of local ideas

Volksgesit: A german word meaning ‘spirit’ possessed collectively by each people/nation. This word was during the Romantic Era proposed by Johann Gottfried Herder.

ü   Savingy: 3 elements to law:

a.     Political element/stage: principles of law not found in legislation but are part of national convictions

b.    In the next stage the political element is maintained but technical elements developed = codification of law such as the civil legal system

-                 moved away from historical approach to mystical adherence to Volksgeist

-             made serious endeavor to study the nature and development of law both in its actual historical context and also as seen in undeveloped or savage societies

-                 studied early law of Greece, Rome and old testament later replaced by native law of India

-                 Considered India as great repository of ancient juridical thought  

-            has a book “Ancient Law Maine” where he studies certain societies and stated laws become more civilized/mature as it moves on

-          live during the period when in biological and scientific thought Charles Darwin evolutionary theory first developed in “The Origin of Species”

-                 sees legal development as have developed serially and predictably without deviation

-                 Stephen Hay Gould disagreed saying it is not unilinear but branching

-                 His contribution is in his systematic and historical methods

-                 Blazed scientific trail into the law

ü   example in the job interview of the Nazi’s regime

ü   Stalinist Soviet Union time

ü   Injustice of unjust political regimes involving mass murder  among it

ü   Give example of east german border guard case, jews property case and berlin wall case & grudge informer case

ü   Mcbourey and White argued condemning the Nazi’s law as merely evil was not sufficient

ü   Fuller stated in his inner morality of law the eight benchmarks or criteria mainly in terms of procedural fairness could give rise to the breach of inner morality of law and also to injustice

ü   Leidmann v Reisenthal à plaintiff wanted to escape the racial prosecution in Nazi occupied france and paid defendants substantial sum of money an dhaned valuable jewellery and money. Defendant then abandoned P and P managed to escape to US met D in New York and wanted to bring an action for breach of contract. Court formal illegality would not act as a bar to proceed with the matter and that it would not apply now

ü   humanity should be treated as an end itself and not means to an end

1.      Quran,

2.      Hadith

3.      Sunnah

4.      Ijma (consensus of general community/scholars as a whole)

5.      Qiyas (analogical reasoning)

6.      Ijtihad (process of decision making by independent interpretation of the primary sources and you must only be an Islamic scholar to be able to make such independent interpretation.

§    Hadith traditions are important tools for determining the Sunnah or Muslim way of life and are part of the traditional school of jurisprudence.

§    Shia Muslim don’t accept:

1.      Qiyas as a source because they believe it can lead to bid’ah meaning innovation

2.      Ijma: in the early days because when the early shia muslims were still alive they regarded their actions as representing the Sunnah

§    Compare the issue of innovation and also the English doctrine of precedent, Donoghue v Stevenson as example

§    There are 4 schools of thought: *refer to table*

§    Head of state would be the Caliph as commander of the faithful

§    Established in Damascus & Abbasid caliphs

§    Last to claim as Caliphs were the Ottoman Turks Sultan, after this empire broken down, no more recognition of caliphs

§    Unlike Christian naturalism, Sharia is the law

§    There is nearly full operation of Sharia law in Saudi Arabia,  Sudan and Iran

§    Divided into 4 categories

§    Look into Aristotle’s teleological approach of acorn and oak. Acorn is the fruit form an oak tree. This is to demonstrate internal causality, so the question of which comes prior logically. In the case of oak tree its final cause causes the development of the acorn into the oak tree. To be compared with Augustine theology theory only the elect are chosen by God to see the truth.

§    Aquinas says this would only apply to the first and second principles only because on the Lex naturalis and Lex Humana could be different as a result of different habit and custom including temperaments.

§    Spinoza:  theory of sub specie aeternitatis and sub specie durationis. Sub specie aeternitatis = under the aspect of eternity what is universally and externally without any reference to or dependence upon the merely temporal portions of reality. Believe in nature and to Spinoza, nature is God.

§    Lloyd commented that it is not always correct to distinguish the primary and secondary principles because the secondary one would have derived from the first. For example the primary principle is usury is contrary to natural law but later it developed out of this principle and provided that since there has been growth of commerce and industry, this principle has changed.

§    He also gave the example on nuclear weapon not to be used in a war and to read together with the concept of Bellum Justum but can this cannot be applicable already when a country has nuclear weapons to use as war weapon and that in extreme situation needs it for self-defense.

§    Roe v Wade banning of abortion as well.

§    Griswold v Connecticut case for banning of contraception pills.

§    Aristotle & Hugo Grotius based on Lex humana justified slavery

§    Can Marxism on economic system for protection of interest be natural law as well

§    Unjust law do not bind men’s morals

§    Aquinas says that a law should be obeyed when to break it would lead or scandal or civic obedience

§    Worried for slippery slope where there are those who disobey the law and others may flout laws which are not morally defective. Example Ghandi’s civil disobedience & Martin Luther King

§    Perversion of law = not law in the fullest sense