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Najeeb Momoh
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Friedmann Legal Theory Pdf 18


Friedmann's Legal Theory: A Summary and Critique




Wolfgang Friedmann was a German-born jurist and scholar who wrote extensively on the philosophy of law, international law, and comparative law. His book Legal Theory, first published in 1944, is considered one of the most influential works in the field of jurisprudence. In this article, we will summarize the main arguments of Friedmann's legal theory and offer some critical reflections on its strengths and weaknesses.




friedmann legal theory pdf 18



The Nature and Function of Law




Friedmann begins his book by defining law as "a system of rules which regulates human conduct within a community" [^1^, p. 1]. He distinguishes law from morality, religion, custom, and convention by emphasizing its coercive nature and its connection to the state. Law, according to Friedmann, is not a mere reflection of social facts or values, but a normative order that guides and controls human behavior. Law is also not a static or immutable system, but a dynamic and evolving one that responds to changing social needs and circumstances.


Friedmann identifies four main functions of law in society: (1) to maintain peace and order; (2) to protect individual rights and liberties; (3) to promote social justice and welfare; and (4) to facilitate social change and progress. He argues that these functions are not mutually exclusive or contradictory, but rather complementary and interdependent. He also acknowledges that different legal systems may emphasize different functions depending on their historical, cultural, and political contexts.


The Sources of Law




Friedmann then proceeds to examine the various sources of law, such as legislation, precedent, custom, doctrine, and international law. He adopts a pluralistic and pragmatic approach that recognizes the diversity and complexity of legal phenomena. He rejects the idea that there is a single or supreme source of law that can provide a definitive answer to every legal question. Instead, he argues that different sources of law have different degrees of authority and validity depending on the circumstances and the nature of the issue at hand.


Friedmann also discusses the role of legal reasoning and interpretation in determining the meaning and application of law. He criticizes the formalistic and mechanical methods of legal reasoning that rely on deductive logic and literalism. He advocates for a more realistic and creative method of legal reasoning that takes into account the purpose, context, and consequences of law. He also emphasizes the importance of judicial discretion and flexibility in adapting law to changing situations and values.


The Types of Law




Friedmann then classifies law into three main types: (1) natural law; (2) positive law; and (3) sociological law. He defines natural law as "a system of principles which are inherent in human nature and which can be discovered by reason" [^1^, p. 51]. He defines positive law as "a system of rules which are enacted or recognized by a sovereign authority" [^1^, p. 51]. He defines sociological law as "a system of norms which are derived from the actual behavior and expectations of social groups" [^1^, p. 51]. He analyzes the strengths and weaknesses of each type of law and their relationship to each other.


Friedmann argues that natural law provides a basis for universal justice and human rights that transcends positive law. However, he also acknowledges that natural law is often vague, abstract, and subjective, and that it may conflict with positive law or sociological law in certain cases. He argues that positive law provides a basis for legal certainty and stability that reflects the will of the state. However, he also acknowledges that positive law may be unjust, oppressive, or outdated, and that it may not correspond to the needs or values of society. He argues that sociological law provides a basis for legal realism and relevance that reflects the actual conditions and aspirations of society. However, he also acknowledges that sociological law may be inconsistent, chaotic, or unpredictable, and that it may not respect the rights or interests of individuals or minorities.


The Critique of Legal Theory




Friedmann concludes his book by offering a critique of legal theory itself. He questions the possibility and desirability of constructing a comprehensive and coherent theory of law that can account for all aspects and dimensions of legal phenomena. He suggests that legal theory is inevitably limited by its own assumptions, methods, and perspectives, and that it may not capture the full reality or diversity of law. He also suggests that legal theory is not a neutral or objective enterprise, but a normative and political one that reflects the interests and values of its proponents. He warns against the dangers of dogmatism, ideology, and utopianism in legal theory, and calls for a more humble, critical, and pluralistic attitude towards legal theory.


Conclusion




Friedmann's legal theory is a remarkable and influential contribution to the field of jurisprudence. It offers a comprehensive and balanced overview of the nature, function, sources, types, and critique of law. It combines a historical, comparative, and interdisciplinary approach that covers a wide range of topics and perspectives. It also demonstrates a keen awareness of the social, political, and ethical implications of law. However, Friedmann's legal theory is not without its flaws or limitations. It may be criticized for being too general, abstract, or eclectic, and for lacking a clear or consistent framework or methodology. It may also be challenged by newer or alternative theories of law that have emerged since its publication. Nevertheless, Friedmann's legal theory remains a valuable and relevant work that deserves to be read and studied by anyone interested in the philosophy of law.


References:



  • Friedmann, W. (1960). Legal Theory. London: Stevens & Sons.




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