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Is law an autonomous discipline

The autonomy of law and in particular the alleged separateness of law and politics has been the subject of debate since time immemorial. Many legal theorists have made the assertion that law is autonomous and is different from politics; many others have gone as far as to call the supposed separation of law and politics a mere myth.

It is the intention of this paper to make a very humble contribution to this debate. This paper is premised upon the refutation of the autonomy of law and the separation of law and politics. I will address the political content of law and show that law and politics are interrelated in that each one influences the other. Considerable attention will be given to the works of legal theorists Ronald Dworkin and Roberto Unger on the subject and in particular the notion of law is politics that was espoused by both of them. I will then go on to briefly discuss some aspects of critical legal theory.

While it is beyond the scope of this paper to indulge in an in-depth analysis of natural and positive law theories, it is useful to take as our point of departure a discussion of some of their basic elements.

Natural law writers argue that natural law is discoverable by reason in human nature.1 Aosara Lucani


Firstly, the name natural, in my view, is misleading because it suggests that it evolved by nature. What I mean by natural law is divine law; law that has been brought about by way of revelation by "Allah". This natural law can be argued to be superior to man-made law because it gets its validity from God.3 Moreover, man-made law can be argued to be inferior because of the fact that it is incomplete or imperfect. This is because it is impossible for a set of rules constructed by a human being to apply to a variety of cases or situations in a neutral and objective manner to cover every conceivable situation that may arise. This is evident in the discovery of loopholes in legislation time and time again. Man-made law can also be argued to be inferior to divine law because it lacks universality. This is because, as has been emphasized above, it can not cover every conceivable case. Instead, it is designed to apply to a particular community or society.

In conclusion, in light of our discussion above, we can say that far from being autonomous and separate from politics, law is actually very political. Judicial processes are just as political as legislative processes. The fact is that these ideas are rejected by many because they seem to question the legitimacy in which the liberal state depends. It is also rejected by those whose interests remains with the maintenance of the status quo.

Positive law, on the other hand, generally refers to law that is "posited" or laid down by a human agent, man-made law. Hence, the idea of "positivism" as a legal philosophy. Positivists argue that the law of legal systems is created by human acts, imposed on people, and that the proper role for legal philosophy is to come to an understanding of the nature of the legal systems rather than speculate about morality. Positivists argue that morality is not a necessary element of the concept of law, and that it can be excluded from the analytical study of law. H.L.A. Hart explained that morality is not considered as part of the definition or concept

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Approximate Word count = 1374
Approximate Pages = 5 (250 words per page double spaced)


  

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