Elaborate on what you understand by ‘laws improperly so called’. (6 marks)
LAW531: Jurisprudence I. April 2005.
According to Austin, law is a social fact which reflects the relationship between power and obedience. Law is a command enacted by a Sovereign; that command is also backed by sanctions. It is a rule laid down to guide an intelligent being by another intelligent being who has power over the former. Though the term ‘law’ has a wide meaning. This includes the laws set by God for His human creations, and laws set by humankind for humankind.
Human laws can be divided into two classes. First, are laws enacted by political superiors. This could be some authority recognised as having dominion over a community. In Malaysia, it would be Parliament and the State Legislative Assemblies as empowered by the Federal Constitution. In other countries, it would be the institution or office with such legislative powers.
The second class of laws are set by those who are not political superiors. These are, what Austin refers to as, “a set of objects frequently but improperly termed laws”. Unlike the first class, the second class of laws are set and enforced by mere opinion or sentiments held with regard to human conduct. These are expressed as “laws of fashion” or “law of honour”. Austin, too, regards “international law” as falling into this category as no State is sovereign over another independent State.
Other types of laws which fall into this class include parts of the legislature which explain positive laws or commands. Another would be acts or enactments which seek to repeal existing laws and release citizens from duties. Rather than seeing them as commands, Austin puts that these are merely revocations of commands. A third category is imperfect laws – or laws of imperfect obligation. These are laws left wanting a sanction. Law, or laws, proper or properly called, as well as laws improper or improperly called, are done analogously. All improper laws are analogous to laws proper.
