To strengthen his view, he stated that ” law grows with the growth and strengthens with the strength of the people, and finally dies away as the nation loses its nationality. Von Savigny(1779-1861), a proponent of this school is of the view that a particular system of law should be a reflection of the spirit of the people who evolved it that is that a legal system should be a part of the culture of a people. That before a law is accepted, that it must not be alien to the people for which it is made rather, it should be made from their history or past so as to mirror their interest. Historical school: This school proposes that law is that which is made in accordance with the previous experiences of a particular people. The positive school has been criticized on the ground that, a law that goes against the will of the people leads to dictatorship, which will eventually result in civil disobedience or revolution. Some of the proponents of this philosophy are, John Austin, Hans kelsen, H.L.A Hart. They presuppose that whenever the sovereign or sole authority lays down a rule or law, it is insignificant whether the law evinces the interest of the people or not whether moral or not. They believe that law is made by a sovereign, who serves as the only source of its validity, who imposes both the law and it’s sanctions on the people while himself is exempted from the law. Positive school: The positivist philosophy believes in a formalized, static or mathematical form of law. Also, it has been argued that the metaphysical disposition of natural law denies it its wide acceptance with regard to the atheistically nature of many people. That natural laws are not codified and cannot be made reference to for adequate usage. However, this school of thought is criticized on the ground that most of its rules or postulations have no empirical ways of measuring them. He went ahead to state that, “ the light of reason is placed by nature, and thus by God in every man to guide him in his acts”.įurthermore, Cicero postulated that the test of law is whether it accords or follows the dictates of the law of nature. It also derives its assertion from the notion that nature is perfect, and humans should behave and be guided by it in their distinction between what is good and evil.Īccording to Thomas Aquinas (1224-1274 BC), law is an ordinance of reason for the common good, made by him(God) who has care of the community. Augustine etcetera, who believe that there is a universal law from a supernatural being which is discovered by reason or rationalization. The natural school: This school of thought has many proponents, ranging from Thomas Aquinas, Socrates, Aristotle, Cicero, John Finn, St. Other schools of thought in Law and their criticisms 2 Realist philosophical superiority as evidenced in the Nigerian legal system.1 Other schools of thought in Law and their criticisms.To cap it all, Friedman goes further to state that the realist school evaluates any part of law in terms of it’s effects. Furthermore, Roscoe Pound sees law as the accurate recording of things as they are, as contrasted with things as they are imagined to be. According to Jerome Frank, “ law is what the court has decided in respect of any particular set of facts prior to such a decision, the opinion of lawyers is only a guess as to what the court will decide, and this cannot be treated as law unless the court so decides by its judicial pronouncement”. In the emerging days of the realist philosophy, it received a lot of followers who in their varying capacities gave definitions to suit their understanding of the new school. This evolution, the realist philosophy, started in 1897. Thus, he gave credence to the role of extra legal factors and other minute influences that judges consider which should be actually regarded as law. Holmes was not satisfied with the mathematical or formalized/static laws and with the notion that the general rules of law as made by the legislature could provide solutions to particular cases as they appear. The American realist philosophy was introduced by Oliver Wendell Holmes, who is regarded as the father of the American movement. They argue that what transpires in the law court or what the judges do to arrive at their judgements and those judgements are the law. In law, realism is a legal movement which originated from the United States of America, which postulates or argues that law should be seen as it is or as it is done in the law court, not as it ought to be or anything else.
0 kommentar(er)
