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NATURE AND IMPORTANCE OF JURISPRUDENCE
According to Professor Gower, “Academic legal training without a course in jurisprudence will be like
playing Hamlet without the Prince of Denmark.” This discussion will attempt to answer the question
whether the study of jurisprudence serves any purpose or to unravel the rational for studying
jurisprudence. The discussion is divided into four parts. The first part which is the introductory part will
deal with the concept of jurisprudence. The second part will look at the criticisms made against the
study of jurisprudence. The third will focus on the importance of jurisprudence and the final section will
be the concluding part.
For a meaningful assessment of the relevance of jurisprudence, it is necessary to throw some light on
the notion of jurisprudence. The term ‘jurisprudence’ has been ascribed various connotations in
different jurisdictions. Jurisprudence in certain jurisdictions may be a reference to the philosophy of law
or legal theory or theory of law, to the French, Jurisprudence is case law. Jurisprudence seeks to answer
very fundamental questions such as : what is justice, rights, validity , morality. AT the centre of these is
what is the nature and essence of law. Thus, to unravel what is meant by the term ‘law’.
The term “jurisprudence” is a derivative from the Latin word jurisprudentia. ‘Juris’ means ‘law’ and
‘prudentia’ means wisdom. Thus, jurisprudence in its original roman sense was merely among several
phrases signifying a “knowledge of the law”. Despite its original Roman conception, there is no
unanimity among jurists as to the precise meaning of jurisprudence. Various meanings have been
attributed to the term jurisprudence by different writers at different times. The following definitions
illustrate the divergence of conceptions:
John Austin in ‘The province of Jurisprudence Determined’ stated that “The science of jurisprudence…is
concerned with positive law or with laws strictly so called, as considered without regard to their
goodness or badness”. According to Salmond, if we use the term ‘science’ in its widest permissible
sense as including the systematized knowledge of any subject of legal enquiry, we may define
jurisprudence as the science of civil law. Roscoe Pound also defined jurisprudence to mean the “science
of law”. i.e. an organized and critically controlled body of knowledge both of legal institutions and legal
precepts and of the legal order, that is, of the legal ordering of society. For C.K. Allen, ‘Law in the
making,’ jurisprudence is the scientific synthesis of laws’ essential principles. According to Paton,
jurisprudence is a particular method of study, not of the law of one country but of the general notion of
law itself. Lloyd has also defined jurisprudence as involving the study of general theoretical questions
about the nature of laws and legal systems, about the relationship of law to justice and morality and
about the social nature of law.
The difficulty of definition is compounded in the case of jurisprudence by several factors. First,
jurisprudence is a compendious term englobing the totality of law; and law itself is a concept that is not
free from ambiguity. Secondly, jurisprudence trenches on related disciplines such as philosophy,
economics, ethics, sociology, political science, anthropology, psychology, et cetera, which are necessary
for comprehension of jurisprudence. Thirdly, the definitional ingredients of jurisprudence comprise law,
philosophy, rights , duties, justice, morality which are in themselves either value or otherwise not free
from ambiguity or controversy. The multi-faceted nature of jurisprudence has prompted Lloyd to
characterize it as “a mansion with many rooms”.
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As could be seen , jurisprudence as a concept will be safer to describe than to define. It can be simply
described as the philosophical underpinnings of law. Jurisprudence is concerned with the rules of
external conduct of human beings , ie. rules which people are required to observe and obey. It is of
necessity allied to other sciences, anthropology, psychology et ceteera.
Jurisprudence assumes that in all communities which reach a certain stage of development there springs
up a social machinery which we call law. Ubi societas ibi ius. In each society there is an interaction
between the abstract rules, the machinery existing for their application and the life of the people. Legal
systems seem to have developed for the settlement of disputes and to secure an ordered existence for
the community. They still exist for those purposes but in addition they are part of the social machinery
used to enable planned changes and improvements in the organization of society to take place in an
ordered fashion. In order to achieve these ends, each legal system develops a certain method, an
apparatus of technical words and concepts, and an institutional system which follows those methods
and uses that apparatus. The pressure of social needs which law must satisfy will vary from one
community to another, but jurisprudence studies the methods by which these problems are solved
rather than the particular solutions.
Jurisprudence is not concerned with the universalist fallacy of common rules of law, for example, the
trilogy of command, duty and sanction, but seeks to construct a science which will explain the
relationship between law , its concept, and the life of the community. The domain of jurisprudence is
the nature of law and its purposes, the relation of legal validity to its efficacy , the interaction between
law, justice and morality, the institutional and conceptual apparatus for the creation adjudication,
enforcement and modification of law.
The greatest reproach made against jurisprudence is that it is a maze of speculations devoid of practical
value. Critics of the study of jurisprudence aver that the study of jurisprudence or the inclusion of the
study of jurisprudence as part of the law school curriculum seeks to achieve noting and is an exercise in
futility as its study instead of inculcating into students better approaches to the law rather lands them
into an abyss of confusion. Though jurisprudence is a demanding course to take in any law school, its
importance are far from criticism:
In dealing with the purpose of jurisprudence, one must accept that works of jurisprudence reflect
different purposes. The relevance of jurisprudence will therefore be discussed from the point view of
the student of the law, the Jurist and Court, the legal Profession or the importance to the lawyer, the
economy and the society in general. The relevance of jurisprudence to each of these will now be taken
and dealt with seriatim.
First is the student of the law. According to Lon L. Fuller in ‘The place and uses of jurisprudence in the
law school curriculum” , ‘…the fundamental purpose of the course in jurisprudence should be to create
in the student’s mind an awareness of problems, rather than to inculcate in him a point of view. He
posits thus “If I have any object of indoctrination it is, in the words of Reed Powell, to spread the gospel
that there is no gospel that will save us from the pain of deciding at every step. Our greatest danger is
that we will decide issues without knowing it, that we will act on the basis of what mach called
“unconscious metaphysics,” that we will accept as truisms, beyond the reach of philosophy ,
propositions that are in fact loaded with philosophical preconceptions. If Jurisprudence can save a tithe
of our students from these intellectual hazards , it will have justified itself.”
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Jurisprudence enables the student to reflect on fundamental questions of human existence, rational
and legal ordering of society and man’s place in the universe. These are philosophical questions for
which jurisprudence thus provides him with a basic initiation. Again, the perplexed or indolent student
might ask, “why should intending lawyers be coerced into studying philosophy?” The answer is that
everybody needs and has a philosophy as the sum of his ideas and convictions. To recommend an
overture of jurisprudence to philosophy is not to suggest that jurisprudence should be dominated by
philosophy but that jurisprudence in ignorance of philosophy seems unsound.
By giving the student an insight into the wealth of contribution of our intellectual ancestors and
contemporaries, the study of jurisprudence brings theory and life into focus, broadens his horizon and
accentuates his perception of basic human problems. “In jurisprudence”, Harris tells us, “ so much that
was taken for granted or left unsaid about the law is put before him”. The student is brought into
“acquaintance with the views of a very heterogeneous collection of theorists and philosophers…as to
the deepest questions about the nature of man or society as to which …he is expected to take up an
overt moral or political stance.”
Again, jurisprudence not only deepens the student’s knowledge of the law by subjecting it to critical
analysis but also enriches his logical faculty. Justice Holmes epigrammatic saying that “the life of the law
has not been logic: it has been experience” is liable to and has often suffered misconstruction. Professor
Hart has pointed out that this quotation is not a disclaimer of the relevance of logic to law. It simply
means that the courts are not bound to decide cases in strict accord with the dictates of logic. The court
decides cases based on the cogency of evidence presented before it through rational argument and use
of language; and “an expertise in rational argument is an indispensable basis of legal practice”. The
efficacy and persuasiveness of language lies in its logic. The logical faculty helps us to unravel the
rationes decidendi of previous cases and to distinguish them from mere obiter dicta. In comparison with
the medical doctor, it may rightly be said of the lawyer that his laboratory is his library , his theatre the
courtroom ( or the classroom) , his stethoscope, his books and his drugs the language and logic of the
law.
By introducing the student to the various schools or theoriesst in jurisprudence, the students
appreciates what each school is , and ethe relevant of each school to the study and building of the law.
For instance will be able to make an informed decisions as to why a particular law is as it is and also t
oquestion a particular law. For instance the sudy of jurisprudence assist student to distinguish and
appraise such case like In Re Akoto , In Re Okine and Contrast same with other human irghts cases.
The next is the relevance of the study of jurisprudence to the jurists or the court. Traditionally, the
study of jurisprudence reflects the perspective of the judge in elaborating the knowledge about what
the law is. Some cases before the courts, especially cases of first impression, raise jurisprudential
questions. The case of Madzimabamuto v. Lardner –Burke [1969] AC 645 in the wake of Ian Smith’s
unilateral declaration of independence of Rhodesia provides a vivid example. It raises fundamental
questions of eminently jurisprudential interests. Lloyd identifies some of these questions as “what is a
legal system? What is meant by ‘revolution’? Is it juridically different from a coup d’état? What is the
role of a judge in such a situation? What is the relationship between validity and effectiveness? What is
the relationship of laws to each other? Are all rules equally authoritative? What gives rules their
authority? Is there an all-or-nothing concept of law? Is law effected by selective enforcement? What is
the effect on a legal system of attention of consent? The case of Sallah v. Attorney General provided
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what Date – Bah terms “Jurisprudence’s Day in Court in Ghana”. talk about the fact that due to the little
appreciation of the jurisprudential questions raised in the case, the judges failed to delve much into
interrogating these jurisprudential issues. Apaloo JA for instance rejected in its entirety the attempt by
counsel to impress the court with ‘Kelsen’s pure theory of law and state’. Surprisingly however, the court
indirectly and unknowingly applied another theory of jurisprudence , Finnis in its reasoning and
conclusion. In Nigeria also, the case of Lakanmi v. Attorney-Generalof Western Nigeria, provided a no
less jurisprudential banquet. In that case, the meaning and legal effect of a coup d’état as well as the
doctrine of necessity were given ample jurisprudential treatment. The classic exposition of supremacy of
the American Constitution by Marshall , CJ. In Mabury v. Madison is an epitome of jurisprudential
erudition and logic: “…committed to writing, if these limits may, at any time be passed by those
intended to be restrained? The distinction between a government with limited and unlimited powers is
obliged if those limits do not confine the persons upon whom they are imposed, and if acts prohibited
and acts allowed are of equal obligation.” No less remarkable for its philosophical profundity is the
reasoning of Lord Atkin in Donoghue v. Stevenson 1932] “The liability for negligence, whether you style
it such or treat it as in other systems as a species of culpa, is no doubt based upon a general public
sentiment of moral wrong-doing for which the offender must pay…You must take reasonable care to
avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who
then in law is my neighbor? The answer seems to be –persons who are so closely and directly affected
by my act that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omission are called in question.”
Not only is an understanding of moral and political theory a prerequisite to evaluating the law and
reforming it, moral and political reasoning is also frequently required in judging legal cases. This factacknowledged in one way or another by virtually all legal theorists-means that an understanding of
moral and political theory is often indispensable to the resolution of legal cases. The most obvious
examples (but no limited to) come from jurisdictions in which moral rights are translated into law using
the mechanisms of a bill fo rights. The protections granted by bills of rights are usually framed in a very
abstract and general way which can be unpacked only by moral and political theorizing. We will look ,for
, instance at the South African case of President of the Republic of South Africa v Hugo (1997). In this
case, the court had to interpret a provision in the South African Bill of Rights which forbids unfair
discrimination on the ground of sex or gender but gives no clue as to when such discrimination will be
unfair. The court had to decide whether it was unfairly discriminatory for President Mandala to pardon
mothers in prison who had children younger than 12 years old but not fathers of such children. A
question like this can be resolved by appeal to moral and political arguments of this kind.
To the legal practitioner, the study of jurisprudence assist him in addition to seeking guidance
concerning the right interpretation of substantive law to acquire knowledge which makes it easier to
find arguments and develop the ability to convince. An instance is the forceful arguments made by Dr. JB
DAnquah in In RE Akoto althgh the court refused to agree with him, modern udges have come to side
with the noble legal practicioner Further, legal practitioners have a responsibility to promote justice and
fairness in the legal system, and jurisprudence gives lawyers the skills to detect the ways in which the
law may fail to reflect the demands of justice and therefore to fulfill this responsibility. An essential
aspect of jurisprudence is familiarity with moral and political theory.. An understanding of moral and
political theory in all its complexity alerts lawyers to the questions that need to be asked in evaluating
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proposes laws or undertaking law reform. It enables them to debate the issues in an informed, critical
and analytical way, in full knowledge of the alternative views on offer.
Jurisprudence has also played significant roles in the political economy of many nations. It is not beyond
doubt that jurisprudence has often been used to legitimate movements of a more dubious kind this
principally is the successful application of Kelsen’s pure theory of law. For instance in The State v Dosso
in Pakistan as well as Uganda v Commissioner of Police , Ex Parte Matovu, the revolutions which took
place all were validated by the court. The study of Juripsrudence have let court to take into account the
socital interest of the citizenry and hence in modern times, will not go strictly by the logic of Kelsenite
pure theory of law. This was the expression of Haynes P in the Greneda Case of Mitchell v DPP At the
same time , it is clear that Utilitarianism and the development of democratic nations have been
important catalysts for many works of jurisprudence . During periods of time, the ability to establish
structures of power has been very central, and it is not surprising that jurisprudence has played an
important role in this process. An assumption concerning a more independent purpose of jurisprudence
is that it proves an indispensable means for balancing interests , that jurisprudential activates vindicate
traditional values, develop fundamental principles, ensure constitutional rights, provides material for
education, pursue research and support a critical and insightful debate in society.
Again, jurisprudence offers a broader perspective of the law in every economic polity. Jurisprudence
provides a broader perspective on the law. In asking questions about the nature of law and its point it
gives us a general understanding of the relation of law to the other institutions making up our society,
and its significance in relation to those institutions. For instance, jurisprudence alerts us to a variety of
external perspectives on law, such as those offered by feminists, Marxists and critical race theorist.
These critical perspectives aim to expose the biases of law, the interests it serves , the way in which it
masks inequality and the injustices it does. Another kind of external perspective to which jurisprudence
alerts us is hat offered by theorists in other disciplines such as economics and political science. These
theorists claim that the law is best understood not according to its own self image-as governed by
internal standards of what counts as good legal reasoning. Rather, they claim, the law is best explained
as a mechanism for allocating legal rights efficiently or as driven entirely by the ideological and political
mindset of judges. An understanding of critical and extra-disciplinary perspective on the law like these
promotes awareness of the social and economic context in which law operates and fosters the
critical cast of mind which typifies the educated lawyer. In calling attention to the fact that law is an
important social practice, and not just set of rules, jurisprudence enables those who practice law,
whether as solicitors, barristers , legal advisers or judges, to bring a broader perspective to their work.
Decisions and actions previously guided by habit or rules of thumb will be guided instead by an
awareness of the deeper issues, and by reasoning according to a broader vision of the law’s purposes.
According to Peter Wahlgren in “The Purpose and Usefulness of Jurisprudence”, the many expression of
jurisprudence indicate that the question about its purpose can be answered in many different ways. And
that the choice of perspective will affect the conclusions that can be drawn. He suggests one such
approach by looking at the purpose of each recognizable jurisprudential activity , and one of them is to
investigate the characteristics of each different school of thought. By examining the characteristics of
each school of thought, the student appreciates how each school views law. In so doing, the student
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gains explanations concerning the content and nature of law and thus make informed decisions and is
able to contribute his quota to making laws which meet the needs and expectations of the society.
Another approach suggested to identify of the purpose of jurisprudence is to try to identify one
overarching purpose, which all activities more or less consciously can be assumed to fulfill. To this, Peter
submits that such an approach can lead to inter alia an assumption that the primary task of
jurisprudence is to provide convincing interpretations and descriptions of substantive law, and all
activities can then be assumed to aim for this goal.
From the foregoing, it can be said that those who assert that jurisprudence is a paper tiger is concededly
subject to challenge. Indeed, the complex nature of jurisprudence may also be apprehended as a rich
and vivid quest for new insights. Jurisprudence is from this point of view a paragon of pluralistic activity,
in close touch with reality and with a great openness for new methods and theories , and readily
assimilating new insights from other areas of society. Arguments in favour of such a positive
interpretation are also the insight that a well functioning legal system must be adjusted to shifting
requirements and that law is continually being affected by external factors. The many –sided nature of
jurisprudence is in other words nothing but a reflection of the current development and requirements of
the surrounding society.
As has already been stated supra, there is widespread misconception about jurisprudence even among
learned men. Jurisprudence is a broad discipline. The study of jurisprudence has obvious, if little
appreciated, advantages. It not only imparts knowledge of the law but, more importantly initiates the
student into philosophy, teaches him to think clearly and reason cogently. Its values for legal practice,
through logic and the use of language, is also not negligible.
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importance of jurisprudence to the lawyer –JB Danquah’s argument in Re Akoto centrering on
human rights
Helps students to questions assumptions like what is law etc
To the lawyer : to prevent their argumetns being described frivolous and vexatious
Judges, justify the cnoclusions reached in Hard cases –like donogue v stevension. IT was novel
Student –Understand a reason behind a law
talk as part of the intro that in civil jurisdictions such as france jurisprudence is referred to as
case law-use in terms of ‘nomenclature’
After talking about the just supra that is where you mention the fact that it seeks to answer
various questions and at the heart of it is law and menintion the various theorists
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THEORIES OF LAW
Different theories compete for attention in respect of answering the question what is law or what is the
nature of law. These theories can roughly be classified as (but are not limited to) legal positivism and
natural law. While the former contends that law as a real social phenomenon is a or may be separated
from morality and should be defined exclusively with reference to social facts, the latter argues that law
is so intimately connected with moral ideas that the concept of law must necessarily include a reference
to morality. The question is what test must law pass so as to be accorded the title ‘law’ in a state?
NATURAL LAW
WHY THE NATURAL LAW THEORY
According to Friedman, the history of natural law is a “tale of the search of mankind for absolute justice
and truth”.
Natural law theory is an attempt by human beings to find justification for why tyranny should not be
permitted. Put in another way, it is an invention by human beings to establish a ‘humane’ society.
As Lloyd puts it “ the essence of natural law may be said to lie in the constant assertion that there are
objective moral principles which depend upon the nature of the universe and which can be discovered
by reason. These principles constitute the natural law. This is valid of necessity because the rules
governing correct human conduct are logically connected with immanent truths concerning human
nature. Natural law is believed to be a rational foundation for moral judgement. Natural lawyers accept
that natural law principles do not always have the effect that they would like them to have but they
argue that the principles remain true even if they are ignored, misunderstood , abused in practice, or
defied in practical thinking .”
Therefore, Natural law is an aggregate of rights and obligations which flow from the characteristics of
human nature.
The natural law theorists are not against the state or against positive law. However to them, Positive
law must respect that which is natural. This will in effect alleviate arbitrary and tyrannical rule. It has
been argued therefore that natural law is antecedent both in logic and nature to the formation of civil
societies and organized governments. They posit that positive law is manmade laws that have their
sources only in constitution or codes, statues etc, which are unworthy of obedience.
To the natural lawyers, it is the moral responsibility of the state , through the instrumentality of its
positive law, to acknowledge their existence, to foster and facilitate their enjoyment by the wise and
scientific implementation of the natural law with a practical and consonant code of civil rights and
obligations.
SOURCES OF NATURAL LAW
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Natural law draws its source from inspiration from nature that there are laws of nature according to
which all things ought to behave
THE PREDICATE OF NATURAL LAW THINKING
There are objective moral order.
It is within the scope of human virtue
CHARACTER OF THE NATURAL RIGHTS AND OBLIGATIONS
They are inalienable because they aer bestowed by nature : Right to life
They are inherent
They are universal
EVOLUTION OF THE THOERY OF NATURAL LAW
The Greek Period : Classical philosophy credits Greek thinkers as having laid the basis for natural law
and developed its essential features. The Greeks themselves , though comparatively uninterested in the
technical development of law, were much concerned in exploring its philosophical foundations, and in
doingso developed many fundamental concepts ,of which natural law was one of the most important.
Thus, they surmised that the universe was governed by intelligible laws capable of being grasped by the
human mind. It was therefore possible to derive, from the rationality of the universe, rational principles
which could be utilized to govern life in society.
Before the 5th Century : Law and religion was very much the same. Law was regarded as issuing from the
gods and known to mankind through revelation of the divine will.
Sophocles’ Antigone: Exhibits the conflict of religious duty with the secular command. King Creon
forbade the burial of polyneikes. Antigone-that in burying her brother she had brokenCReon’s law, but
not the unwritten law.
After the 5th Century BC: There was a change in philosophy. Philosophy moved away from religion. law
ceased to be regarded as an unchanging command of a divine being. Law acquired the character of a
human invention. Justice came to be examined from the social perspective rather than metaphysical.
Explanation for the Change in Perception : Before the 5th BC, Greek society was predominantly agrarian,
not so scientifically developed. In such society, everything is likely to be attributed to God. After 5th
Century BC Greek society became more creative.-the use of the intellect to design and produce the
Greek artefacts. This affected the relationship between law and religion. Therefore natural law
emanating from God became law emanating from reason.
Examples of Natural law thinking .
Socrates (470-399 BC) and Plato (428-348 BC) argued that there were principles of morality which it was
possible to discoverthrough the processes of reasoning and insight. Law based on these principles would
thus be the product of correct reasoning.
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Plato:Plato by his idealist philosophy, laid the foundations for much of subsequent speculation on
natural law. He developed the ‘idea’ of justice as an absolute thing-in-itself having qualities of truth and
reality higher than those of positive law, which could then be seen as a mere shadow of real justice. Law
must constantly strive to approximate to the Absolute Idea of justice, and ideal justice could only be
achieved or fully realized in an ideal Sate ruled over by philosopher –kings capable of grasping the
Absolute Idea of justice.
ARISTOTLE (384-322 BC) : For Aristotle unlike Plato, the law should rule rather than man ruling. It is
natural for the human being to be corrupt, exhibit the character of a beast. To Aristotle, the human
being is subject to vices of the beast –greed , anger etc. Hence it is not good to let man rule ,but rather
the law should rule. According to him, he who decrees that the law should rule would as well decree
that God and God alone rules and he who decrees that man should rule, decrees that the beast should
rule and this leads to tyranny.
Aristotle recognized nature as the capacity for development inherent in particular things, aimed at a
particular end or purpose ,in both physical and moral phenomena. He also made a distinction between
natural and conventional justice. To him, ‘natural justice’ is common to all humankind and based on the
fundamental end or purpose of human beings as social and political beings, which he concludes to be
the attainment of a ‘state of goodness’. Conventional justice varies from State to State in accordance
with the history and needs of particular human communities.
The Stoics: They identified Nature with Reason, arguing that reason governs all parts of the universe,
and that humans, as part of the universe and of Nature, are also governed by Reason. Thus, to the
Stoics, reason as a universal force pervading the whole cosmos was considered by the Stoics as the basis
of law and justice. People will therefore live ‘naturally’ if they lived according to their Reason.
The Roman Period:They were influenced by the Stoic. The Romans knew that certain things do not
conform to natural law but exist in the Roman society and that there were certain laws which did not
conform to natural law but peculiar to the world at large. They came out with the three ideas of law :
Ius civille : the law peculiar to the Roman State
Ius gentium : the law common to all nations
Ius naturralle : natural law
Cicero (106-43 BC) : He argued that nature provided rules by which humankind ought to live and that
these rules, which could be discovered through Reason, should form the basis of all law. He established
the view that an unjust law is not law and argued that a test of good law was whether it accorded with
the dictates of Nature.
THE MIDDLE AGES AND SCHOLASTICISIM
This was an attempt to bring secular philosophy , especially Aristotelianism, into harmony with religious
dogma. That was a period when the church got intense competition with the Roman State for
superiority. It was therefore a period dominated by the philosophers of the Catholic Church.
ST. AUGUSTINE: Before the fall of man, there was the golden age of mankind in which an absolute ideal
of the law of nature was in place. After the fall of man , man was forced down to the CIVITAS TERRENA
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where man became vulnerable and of evil predispositions-government, law, property and the state to
organize us to go back to God. If so, who must be obeyed? The king or the church?
Role of the Church : Notwithstanding the fall, men hope to return to the kingdoms of God after our stay
here. The Church becomes the guardian of eternal law of God here on earth to guide us on our journey
back to God.
Role of Government : Government therefore in the promulgating of the worldly law –lex temporalismust strive to fulfill the demands of the eternal law –lex Aeterna. The lex Aerterna is therefore
superior to the lex temporalis . The lex aeterna resides resides in the church.
St. Thomas Aquinas (1224-74):Aquinasdivided law into four categories:
Lex aerterna –eternal law:This is law which constitutes God’s rational guidance of all created things and
is derived from the divine wisdom and based on a divine plan.
Divine Law-Lex divina (Revealed in Scriptures): that part of eternal law which is manifested through the
revelations in the Christian scriptures
Natural Law (Discovered through human reason): which describes the participation of rational creatures
in the eternal law through the operation of reason.
Human Law –Lex humana (essence is to be just) : which is derived from both Divine law and Natural law
and which is, or must be directed towards the attainment of the common good. This law may be
variable in accordance with the time and circumstances in which it is formulated, but its essence is to be
just. Thus lex injusta non est lex (an unjust law is not law).
For Aquinas, a human law would be unjust where it :
furthers the interests of the law giver only;
exceeds the powers of the law giver;
imposes burdens unequally on the governed
Under these circumstances, then , disobedience to an unjust law becomes a duty. However, such
disobedience though justified , should be avoided where its effects would be to lead to social instability,
which is a greater evil than the existence of an unjust law.
CATALYSTS OF THE PERIOD
Renaissance
Reformation : attack by Protestantism in the 16th Century on the dominance of the Church. Equality in
the Bible interpreted to imply equality of all before God and that all have the right to commune with
God without the intervention of a priest.
As a result, the existing order came under attack :
There was an attack on the catholic church as the only church.
There was a collapse of the economic system based on feudalism
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Feudalism also collapsed in its political form.
CLASSICAL ERA OF NATURAL LAW
Medieval Period was dominated by Scholarsticism.
The Church was pre-eminent
The Church was the dominant source of knowledge
NATURE OF ATTACK ON EXISTING ORDER
Against the monolithsism of Catholicism
Against the economic system based on feudalism
Politically against the feudal system that supported nobility and privileges:why should governance be
only the reserve of the noble.
ESSENTIAL CHARACTERISTICS OF CLASSICAL NATURAL LAW
Intensified the divorce of law from theology. Natural law was infused with the doctrines of theology.
Natural law note limited to mere first principles but extended to concrete and detailed rules. Thus, it
became decentralized-universal.
Notion of the social nature of man gave way to individualism
There was a shift from theological to a casual view etc. Thus, natural law was not static.
THEORY OF SOCIAL CONTRACT
For Hobbes, in the state of nature man is an essentially social an gregarious being but intrinsically
selfish, malicious , brutal and aggressive. Hobbes background was full of turmoil. He lived in a period of
turmoil. He supported a strong sovereign who should impose his will on the people. To him , if we want
peace in the society, we need to have a monarch that is absolute and once this is done, no law can be
unjust.
There is one caveat “ everybody possesses the natural right to preserve his life and limbs against the
aggression of others.
To Hobbes, Iniquitous and tyrannical laws must be obeyed. To him , if the king becomes dictatorial, he
will suffer “ the pain of eternal death”.
One situation when duty of loyalty to ruler is exempt-when the sovereign has lost the power to preserve
the peace in society and to protect the safety of citizens
JOHN LOCKE
PAA JOY
He talks of the state of nature as a peaceful place where everybody is a king or queen with everything in
abundance. There was however one aspect of the gift of nature. According to him, when you miss your
sweat to the gift of nature, it becomes your property. This may lead to accumulation, leading further to
competition. And that there is the need for us to manage ourselves to al benefit from the state of
nature. So according to him, the people will enter into an agreement with themselves and surrender
their individual sovereign right to the community.Here, everybody was a sovereign . But according to
Hobbes, in entering into the contract with him, there are certain inherent right, -the natural rights to
life, liberty and property .
THREE CONTRACTS
pactum Unionis :
Pactum Subjecionis
Conract by the king in turn
the Amercian declaration of independence is a replica of John Locke’s theory .
John sought to give justification for the existence of the sovereign and the new emerging capitalist class
ROUSSEAU
Pactum Unionnis but the sovereign rights remain with the people . Hence republicanism –thus sovereign
authority resides in the people where the president presides. (remember the preamble to the 1992
Constitution of Ghana)
PRACTICAL ACHIEVEMETNS OF NATURAL LAW
Established the basis for the connection between law and the values of freedom, justice, equality etc.
Set the tone for a disconnection governance e which has the sole purpose of guaranteeing the welfare
of the people on the one hand and arbitrary rule on the other –eg. ideas of John locke, Rousseau ,
Montesquieu
Remember the preamble to the Constitution (the effect on Constitutions of nations)
Human rights protection-the philosophical justification of human rights takes from natural law
Remember the Nuremberg trials under international law (the accused persons obeyed laws made by the
existing authorities at that time so whey should they be penalized.”
Provided the legal instruments by which the liberation of the individual from medieval ties was achieved
led to religious liberty, freedom of movement
purged the criminal law of its dehumanizing aspects eg. torture ,dehumanizing punishment etc.
Remember also audi alteram partem,
Inspired revolutions leading to liberal constitutions –American and French
what in your view has been the influence of natural law on the Ghanaian society?
PAA JOY
DECLINE OF NATURAL LAW
Hostility against the Social Contract Because of its association with revolution
it was regarded as politically dangerous . For Bentham, you cannot compare the king to anyone else and
that the idea of natural law was politically dangerous.
Development of empiricism of the 19th Century Europe derogated from the theory
Hostility against the natural law
the growth of scientific research deepened empiricism –sheer belief was disapproved
Appreciation of relativity of morality and moral standards
Emergence of new theories of man’s evolution –leading to ideas that man is continually improving e.g.
Darwin’s theory
The historical school led by Sir Henry Maine doubted the assertion that private liberty and equality
existed in the state of nature.
MONTESQUIEU AND HUME
The social contract did not survive the 18th Century . One of the reason was the change individualistic
conception of society to collective conception stimulated by a rising tide of nationalism. Another reason
was the stupendous growth of natural science which gave strength and emphasis to empirical methods
against deductive methods. Also, the European society demanded a comparative and sociological
approach to the problems of society not an abstract one. It is maintained that Montesquieu and Hume
destroyed the foundations of natural law.
Montesquieu (189-1755) in his book Spirit des Lois, Montesquieu introduced a new approach to law. He
superficially adhered to the law of nature. For him law means the necessary relations arising from the
nature of things. He emphasized that there was a standard of absolute justice prior to positive law. He
maintained that law although vaguely based on some principles of natural law must be influenced by
environment and conditions such as climate, soil, religion, customs, commerce, etc.
David Hume (1711-1776)
Hume launched an attack on the reasoning adopted by natural law in that the attempt to derive an
‘ought’ form an ‘is’ is flawed. for example Asare is a dog; Asare is black; all doges called Asare ought to
be black. This deduction although logical is flawed for not all doges called Asare ought to be black. He
argued that the process of law creation and enactment had nothing whatsoever to do with morality or
the principles of natural law. The logical conclusion of his argument is therefore that natural law must be
rejected as it is contrary to empirical and observable truth.
Modern variants of natural law
what factors accounted for the interest in natural law?
PAA JOY
There are many reasons-but the most fundamental reason for the revival of interest in the neo natural
law was the 2nd world war.
Raz was a positivist but after the war he blamed himself for the Nazis war-his idea of a special race, a
superior race and the fact that the rest should be eliminated was brutish so he changed to a neonaturalist. After the 2nd world war, philosophers started to ask how they contributed to the Nazi system.
The Soldiers who carried out the ethnic cleansing were to be punished but the question was how to
punish them since they were obeying the law ie. Those who obeyed Hitler. At the Nuremburg trials, the
world decided tha they should be punished and that the laws that they obeyed were not laws . They
therefore resorted to natural law in order to be able to punish them.
By resorting to natural law, they knew that there were certain laws that must not be obeyed even if they
were decreed by the king. And if obeyed, you will be punished for it. That there must be certain
standards for making and obeying laws. Hitler’s acts drewe the world’s attention to human rights .
Human rights has its foundation in natural law. That any law that infringes on the innate qualities of man
was not law. Natural law was a solution to the world problem-ie. The infringement on human rights-that
was in existence. It was replaced with the earlier principles of natural law. Before the 2nd world war,
there was limited protection of human rights. But after the 2nd world war, protection of human rights
became a world concern.
LON L FULLER
He was a professor of professor of jurisprudence at Harvard University from 1948-1972. Fuller is
regarded as the leading contemporary natural law theorist. His theory lacks the metaphysical structure
of natural law. He was more concerned with the overall working of the legal system and stressed on the
difficulty of evaluating the individual will. He blamed the totalitarianism f 1930s and 40s on failure to
make laws. His theory is one of ‘procedural’ natural law. His theory is affiliated with themes of an
interest in discovering principles of social order which the lawmaker must take into account if he is to be
successful at his task and a stress on the role of reason in the law making process.
He asked a question-what is a legal system? What is a legal system? he believed that if certain steps are
followed in making law, then automatically once those steps are followed, then we will have good law
and the good law will be in conformity with the natural law. he also asked –What are the minimum
requirements of a legal system He wrote a book called ‘the morality of law’ and in the book his principal
concern was stated by him as follows “ the content of these chapters has been chiefly shaped by a
dissatisfaction with the existing literature concerning the relation between law and morality.” –The
existing literature was positivist law – law is distinct from morality
Chapter two of his book was titled the Morality That Makes Law Possible. He believed that in law, there
is some notion of morality . That law cannot be separate from morals and that there is essentially a set
of minimum criteria for recognizable legislative that need to be followed. Under the old law system, the
content of the law determined the validity of the law. However he was concerned with the procedures
that have to be followed before a law is made. Procedures that it followed would lead to the best law
being made. the ‘inner morality of law’ is the procedural requirements that should be satisfied to create
and maintain a system which can be properly called a ‘legal system’. “ What I have called the internal
morality of law is in this sense a procedural version of natural law…” The eight negative procedures are
as follows :
PAA JOY
Failure to establish rules at all , leading to absolute uncertainty. That is there should be rule since the
first place as supposed to a series of ad hoc judgments.
Failure to make rules public to those required to observe them
Improper use of retroactive lawmaking : The people would have to ask themselves if they had broken
the laws. You cannot make laws for people to be punished for what they did before the laws were made
Failure to make comprehensible rules . the rules should be understandable.
Making rules which contradict each other. They should be consistent.
Making rules which impose requirements with which compliance is impossible.
Changing rules so frequently that the required conduct become wholly unclear.
Discontinuity between the stated content of rules and their administration in practice. that is the
administration doing something else and expecting others to do the other.
Fuller characterizes these conditions as the morality hat makes the law possible. While, Aquinas’ theory
centers on external morality of which the law must conform to, Fuller’s legal morality is internal to the
law itself. Failure to respect any of the procedures of legal morality result in a legal system that is not
properly called. The ‘natural law’ element in Fuller’s writing reflects his concern with legality or due
process rather than concern with the substance or content o the laws. Internal morality is a set of
criteria whereby a legal order may be evaluated –constitutes a series of guidelines, or ideals, to which a
legal system should aspire.
Fuller distinguished two moralities ; a morality of duty and a morality of aspiration. that law is not just
law. It has an inner aspect. “…it embraces a morality of duty and a morality of aspiration. It confronts us
with the problem of knowing where to draw the boundary below which men will be condemned for
failure, but expect no praise for success…”
Certain things are moral of a morality of aspiration as supposed to a morality of duty such as achieving
excellence in a subject.
Golding does not accept this explanation because he says it involves an overextension of the term
morality. Fuller in his book ‘anatomy of law’ refers to the conditions of success in lawmaking enterprise
as being ‘implicit laws’. Golding thinks it is not incorrect to characterize these as moral guidelines for
lawmakers and officials, if they are to act in a fair and responsible fashion towards the member of
society. Fuller’s argument is part of what is meant by rule of law and just administration of laws.
Adherents to it will lessen arbitrary treatment of the public by law-makers and law-appliers. It may be
incorrect to characterize these guidelines as ‘internal’ to the law, for they are derived from the nature of
the enterprise of lawmaking.
Goldign is of the view that adherence to these guidelines does not entirely rule out the possibility of
laws that are bad or unjust according to some substantive (external) standard. Fuller however shows
that there is an intricate connection between the questions of existence of law and obligation.
PAA JOY
HART-FULLER DEBATE
The debate was sparked by an article written in the Harvard Law Review by Professor Hart in 1958.
Professor Fuller responded in an article in the same journal. Hart replied in a chapter in The Concept of
law in 1961. Fuller responded in a chapter in his The Morality of Law in 1963. Hart replied in an article
in 1967.
The pivot , or at least the common starting –point , in the debate was the attitude taken by Gustav
Radbruch to the legality of laws passed during the Nazi era in Germany. Radbruch had originally been a
positivist, holding that resistance to law was a matter for personal conscience, the validity of a law
depending in no way on its content. However, the atrocities of the Nazi regime compelled him to think
again. He noted the way in which obedience to posited law by the legal profession had assisted the
preparation of the horrors of the Nazi regime, and reached the conclusion that no law could be
regarded as valid if it contravened certain basic principles of morality.
After the war, it was this thinking that was followed in the trials of those responsible for war crimes , or
who had acted as informers for the former regime. In 1949, a woman was prosecuted in a West German
court for an offence under the German Criminal Code of 1871, that of depriving a person illegally of his
freedom, the offence having been committed, it was claimed , by her having denounced her husband to
the war-time Nazi authorities as having made insulting remarks about Hitler, while on leave from the
army. (The husband was found guilty and sentenced to death, but not executed, and sent to the eastern
front). The woman , in defence, claimed that her action had not been illegal since her husband’s conduct
had contravened a law prohibiting the making of statements detrimental to the government-a law that ,
having been made according to the constitution in place at the time, was valid. The court found that the
Nazi statute, being ‘contrary to the sound conscience and sense of justice of all decent human beings’,
did not have a legality that could support the woman’s defence, and she was found guilty. The case thus
illustrated a conflict between positivism and natural law, the latter triumphing. The principle adopted in
the decision was followed in many later cases.-Positivissm : Tinieye v Republic –per Taylor; Re Akoto; In
Re Okine ; Naturalist: Ex parte Quaye Mensah ; NPp v IGP ; Npp v GBC ; 31st December Case ; Patience
Arthur v Moses Arthur
PROFESSOR FULLER’S CASE
Professor Fuller (unlike Hart) believes that the German courts were correct in their approach. In the
article (the 1958 article) that expresses this view, Fuller introduces us to the notion of ‘fidelity to law’. At
first it seems that Fuller is saying that ‘fidelity to law’ is something that exists. We may find this puzzling
in view of the evidence that some people ,ranging from petty criminals to revolutionaries, do not have
feelings of fidelity to law. It transpires, however, that Fuller is using the notion as a lead-in to mentioning
that a legal system must have certain characteristics if it is to command the fidelity of a right-thinking
person. Foremost among these characteristics is respect for what Fuller calls the “inner morality of
law”. By this Fuller refers to the essential requirement of a legal system that it should provide
coherence, logic , order. These characteristics were lacking in the system of government instituted by
the Nazis, as Fuller illustrates by reference to the retroactive decree by which thee murder of 70 people
in the Roehm purge of 1934 was validated, an event ‘demonstrating the general debasement and
perversion of all forms of social order that occurred under the Nazi rule’.
PAA JOY
Professor Fuller proposes that a system of government that lack what he terms of the ‘inner morality of
law’ cannot constitute a legal system, the system lacking the very characteristic-order-that is sine qua
non of a legal system.
In his book, Morality of Law, published in 1963, Fuller turns from the negative to the positive and
explains what characteristics a system must show in order to be capable of constituting a legal system.
He begins his explanation with an allegory about ‘the unhappy reign of a monarch who bore the
convenient, but not very imaginative and not very regal sounding name of Rex’. Rex was determined to
reform his country’s legal system, in which procedures were cumbersome, remedies expensive, the
language of the law archaic and the judges sometimes corrupt.
His first step was to repeal all existing laws and to set about replacing these with a new code. But ,
inexperienced in such matters he found himself incapable of formulating the general principles
necessary to cover specific problems and, dishearten , gave up the attempt.
Instead he announced that in future he would decide all disputes that arose himself. He accordingly
heard numerous cases but it became clear that no pattern was to be discerned runningthrough the
judgments that he handed down. The confusion that ensued caused the fiasco to be abandoned.
Next , Rex resolved that reform should be achieved by his deciding at the beginning of each year all the
cases that had arisen during the preceding year. This method would enable him to act with the benefit
of hindsight. His rulings would be accompanied by his reasons for making them. But ,since his object
was to act with the benefit of hindsight, it was to be understood that reasons given for deciding
previous cases were not to be regarded as necessarily applying to future cases.
After his subjects had explained that they needed to know in advance the principles according to which
decisions would be made out the rules by which future disputes would be determined and after further
labors a new code was published. But when the code was finally published, Rex’s subjects
weredismayed to find that its obscurity was such that no part could be understood either by laymen or
lawyers.
To overcome this defect Rex ordered a team of experts to revise the code so as to leave the substance
intact but clarify the wording so that the meaning was clear to all. However, when this was
accomplished it became evident that the code was a mass of contradictions, each provision being
nullified by some other.
Undeterred by this latest failure, Rex ordered that the code should be revised to remove the previous
contradictions , and that at the same time the penalties for criminal offences should be increased, and
the list of offences enlarged. This was done, and it was made, for example, a crime punishable by ten
years’ imprisonment to cough, sneeze, hiccup, faint or fall down in the presence of the king. Failure to
understand, believein, and correctly profess the doctrine of evolutionary, democratic redemption was
made treason.
The near revolution that resulted when the code was published caused Rex to order its withdrawal.
Once again a revision was undertaken. The new code was a masterpiece of draftsmanship. It was
consistent, clear, required nothing that could not reasonably be complied with, and was distributed free.
However, by the time that the new code came into operation its provisions had been overtaken by
events. To bring the code into line with current needs, amendments had to be issued daily.
PAA JOY
With time the number of amendments began to diminish and public discontent to ease. But before this
had happened Rex announced that he was resuming the sole judicial role in the country: all cases would
be tried by himself. At first all went well. His decisions indicated the principles that had guided him, and
those by which future issues would be determined. At last a coherent body of law seemed to be
appearing. But with time, as the volumes of Rex’s judgments were published, it became clear that there
was no link between Rex’s decision and the provisions of the code.
Leading citizens met to discuss what should be done but before any decision was reached Rex died, ‘old
before his time and deeply disillusioned with his subjects’.
THE INNER MORALITY OF LAW
Corresponding to the eight defects illustrated by Rex’s mistakes, Fuller lists eight qualities of excellence.
In a legal system the laws must be :
General (not made ad hoc); 2. Published; 3. Prospective, not retroactive; 4. Intelligible; 5. Consistent; 6.
Capable of being complied with; 7. Endure without undue change; 8. Applied in the administration of
the society. These qualities make up the ‘inner administration of the society. These qualities make up
the ‘inner morality of law’. The word ‘morality’ is misleading. The word carries ethical connotations, yet
none are intended. What Fuller refers to is the inner character of a legal system the characteristics
without which a system cannot properly be regarded as a legal system. The phrase also used by Fuller,
‘fidelity to law’, reflects the notion that a citizen can owe a duty to obey only where the features that
make up the inner morality of law are present.
Does Fuller’s view that a system of government that lacks the ‘inner morality of law’ can command no
allegiancefrom a citizen mean that Fuller is to be regarded as a natural lawyer? In one sense Fuller
stands outside the natural law camp. Imaging a law that required all children of ten who were lefthanded to be executed. To a natural lawyer the law would, be in conflict with a code higher than manmade decrees, be void. Yet the law would not conflict with any of the Fuller requirements: the law
would display the inner morality of law. So for Fuller, the law would, we must presume , be valid. In this
sense Fuller stands as a positivist. And yet the flavour of natural law hangs about him. Consider the
passage: ‘To me there is nothing shocking in saying that a dictator-ship which clothes itself with a tinsel
of legal form can so far depart from the morality of order, from the inner morality of law itself, that it
ceases to be a legal system. When a system calling itself law is predicated upon a general disregard by
judges of the terms of the laws they purport to enforce, when this system habitually cures its legal
irregularities, even the grossest , by retroactive statutes, when it has only to resort to forays of terror in
the streets, which no one dares challenge, in order toescape even those scant restraints imposed by the
pretence of legality-when all these things have become true of a dictatorship, it is not hard for me, at
least, to deny to it the name of law.’ Here and elsewhere in his writing we gain the impression that it is
not so much the failure to observe the inner morality of law that sticks in Fuller’s throat as the evil that
in practice results from this failure. Be that as it may, what we can say is this: under mainstream natural
law thinking a law is nota valid law if it conflicts with a higher moral code. For Fuller, a law is not valid if
it forms part of a purported legal system that fails to comply with a higher code, the code in Fuller’s
case, however being one based not on ethical values, but on values stemming from rationality. In this
sense, in that he judges a law’s validity by reference to an outside standard, Fuller’s thinking can fairly
be regarded as forming a strand in the natural law tradition.
PAA JOY
Remember Tsikata in Relation to Articles 19(5) and (7)
PROFESSOR HART’S CASE
Professor Hart’s point of divergence form Fuller is over the Radbruch issue. Hart, the positivist, rejects
the notion that because of the circumstances in which it was made, a Nazi law should be deemed
invalid. Is Hart by so doing in effect endorsing the legality of what may be wholly evil? NO., Hart
explains, he is not. People who claim that a posited law is not valid because it fails to meet certain
external criteria muddy the water. The positivist approach makes people face up to the real issue. The
positivist confronts people with the question –‘That law is the law. Is it so evil that you intend to
disobey and suffer the consequences?’ ‘This’ Hart says ‘is a moral [question] which everyone can
understand and it makes an immediate and obvious claim to moral attention. If, on the other hand, we
formulate our objection as an assertion that these evil things are not law, here is an assertion which
many people do not believe, and if they are disposed to consider it at all, it would seem to raise a whole
host of philosophical issues before it can be accepted.’ The natural lawyer blurs the issue. If we are going
to criticsinstitutions or laws we ought to do so by speaking plainly and facing reality, not basing
ourcriticisms on ‘propositions of a disputable philosophy.
In The Concept of Law Hart, in a powerful plea , restates this point , ‘So long as human beings can gain
sufficient co-operation from some to enable them to dominate others, they will use the forms of law as
one of their instruments. Wicked men will enact wicked rules which others will enforce. What surely is
most needed in order to make men clear sighted in confronting the official abuse of power, is that they
should preserve the sense that the certification of somethingas legally valid is not conclusive of the
question of obedience, and that, however great the aura of majesty or authority which the official
system may have, its demands must in the end be submitted to a moral scrutiny. This sense, that there
is something outside the official system, by reference to which in the last resort the individual must
solve his problems of obedience, is surely more likely to be kept alive among those who are accustomed
to think that rules of law may be iniquitous, than among those who think that nothing iniquitous can
anywhere have the status of law.’
It is an irony of the Hart-Fuller debate that in deciding how, after the war, cases such as those
concerning ‘grudge informer’ cases should have been dealt with , both Hart and Fuller believe that (as
also had Gustav Radbruch) retrospective legislation should have been the answer. But Fuller’s reasons
differed from those of Hart. ‘But as an actual solution for the informer cases, I,’ Fuller wrote, ‘like
Professors Hart and Radbruch, would have preferred a retroactive statute. My reason for this
preference is not that this is the most nearly lawful way of making unlawful what was once law. Rather I
would see such a statute as a way of symbolising a sharp break with the past, as a means of isolating a
kind of clean –up operation form the normal functioning of the judicial process. By this isolation it would
become possible for the judiciary to return more rapidly to a condition in which the demands of legal
morality could be given proper respect.’
PAA JOY
POSITIVISM
Positivism is not a united front. There are various propositions. Even though they do not have
unity, there is a common ground.
One of the common points is that the letter of the law is important more than the spirit. Thus, the
words that are written and their literal meaning represent what the law is. It means that there
should not be any external matters read into the provision.
Secondly, what is written down is key to defining law. Thus, law is what has been posited or
written down. They are not interested in our personal thoughts but what is written down.
Positivists have argued that there is a distinction between law and morality (separation thesis). In
other words law and morality are not fused. This among other things is to ensure predictability
and certainty of the law otherwise the law will be countered by morality.
Positivists believe that law is a creation of a law giver (a human law giver) who is not ‘God’.
This is the general first idea. Because it is a human law giver, it is said that law is the work of
parliament, monarchs or rulers (human rulers-presidents, prime ministers). It can then be said
that law is from legislation and judicial precedents (if you conceive the whole concept of ruler –
looking at the government as a whole: executive, legislature and judiciary). Because of that it is
said that there is a ‘known human author’ of law. Either a King, Parliament etc.
Positivists suggest that law is a product designed by human mind. Fundamental to this is that ,
law is a matter of ‘social fact’. The meaning according to positivists is that law is found in actual
practices or institutions of a state.
All these can be summarized into five points:
Law is a creature or creation of human agents.
Because it is a creation of human agents, we are talking about law as it is not law as it ought to
be.
If you will do this, then it is said that law is found in rules declared by authorities. Hence
unless the authority such as Parliament declares the law, it is not law.
Positivist believe that there is a formal criteria to determine the validity of law. Look at Article
106 of the Constitution in the case of Ghana for instance.
There is no necessary connection between law and morality-separation thesis. Law , to the legal
positivist, is a social fact, “ a particular way of structuring social life. It is thus essential to the
nature of law that it can be identified without any appeal to controversial moral arguments. The
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positivists suggest that once the law has fulfilled the formal criteria, the law becomes law proper
and that it is not at all times that the law may have a moral interface. That is to say that
sometimes, the law might contain some moral precepts. However as has been stated supra, that
amount of morality will not determine the validity of the law and rather it should have fulfilled
the formal criteria. The second point under the fifth is that the law itself may include a moral test
and the ‘moral test’ is that ‘for a law to be valid, it must contain the following things… (which
may include morality)’. This is what is called positive morality-the legislated morality. That is
morality that is allowed to be part of law by virtue of legislation.
The third point is that courts or judges may be authorized to dispense justice on a particular
notion of morality-See Article 296 , Article 23. Here the judges can only do that unless they are
authorized by law.
Finally, law sometimes have the ‘open texture language’: This is the open text of the provision.
So here the judge has discretion to look at the moral aspect of the provision. All these show that
although there is no necessary connection between law and morality, there are however some
exceptions.
Hart makes the separation thesis clear by maintaining that there is “the need to distinguish,
firmly and with the maximum of clarity , law as it is from law as it ought to be”. Austin puts it : “
The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one
inquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A
law, which actually exists, is a law , though we happen to dislike it, or though it vary form the
text, which we regulate our approbation and disapprobation.” Consistent with this position is the
legal and political philosophy of Joseph Raz. For him, when there is legal system and laws, “the
courts are bound to apply them] regardless of their merit… Legal systems find their application
undesirable, all things considered”. He defends positivists conceptual independence from
morality. Morality is necessarily excluded from Law. Law is to be identified by empirical social
facts, namely, the common legal resources such as legislation, judicial decisions and custom, and
should therefore be defeind without reference to mroal standards. This resonates well with Hart’s
conception that the belief of the judges do not count when it comes to validity of the law. Law is
law even if judges accept the rules of their jurisdiction for other reasons, such as “calculations of
long-term interest; disinterested interest in orders; an unreflecting inherited or traditional
attitude; or mere wish to do as others do”.
“Legal positivism is the thesis that the existence and content of law depends on social facts and
not on its merits. The English jurist John Austin (1970-1859) formulated it thus : “ The
existence of law is one thing; its merit and demerit another. Whether it be or be not is one
enquiry; whether it be or be not conformable to an assumed standard is a different enquiry.”
The positivist thesis does not say that law’s merit are unintelligible , unimportant , or peripheral
to the philosophy of law. It says that they do not determine whether laws or legal systems exist.
Whether a society has a legal system depends on the presence of certain structures of
.governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of
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law. What laws are in force in that system depends on what social standards its officials
recognize as authoritative ; for example, legislative enactments, judicial decisions, or social
customs . The fact that a policy would be just wise, efficient ,or prudent is never sufficient reason
for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or
imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of
what has been posited (ordered , decided, practiced, tolerated, etc); as we might say in a more
modern idiom, positivism is the view that the law is a social construction.”
AUGUSTE CONTE
He has been attributed ‘the First true positivist’. He believed that the world evolved in three
stages-theology, metaphysics and Scientific. Conte like all positivist believe in ‘Empiricism- the
truthfulness of a thing can be established only by experience or scientific fact.
Firstly, he believes in the divine authority. So the power to govern, human rights all originate
from the divine authority. The problem however is that not all of us believe in this divine
authority.
The metaphysics, thus the French revolution brought about ‘Natural rights’. Natural rights here
becomes the basis for power and not God. Metaphysics however is a matter f abstract reasoning.
Because of this problem of abstract reasoning, the Scientist-the modern era, argued that we
should believe in things that we can see, verify, established by facts. The basis of positivists is
scientific enquiry.
THOMAS HOBBES
He was dismayed by the English Civil War of 1642-1649-the struggle between Parliament and
the Royals. In that Civil War, Charles I was executed. According to Hobbes, whether Parliament
or Royals, there should be a strong central government.He therefore wrote a book the
‘Leviatham’. This book was published in 1651. It is in this book that he made the proposal
about the ‘strong central government’. Note that Hobbes did not ask for ‘arbitral’ power but
‘absolute’ power and absolute power is to secure the wellbeing of the citizens. He believes in
Royal absolutism. He thinks that law in such a state is the will of the monarch.
It is from Hobbes that we get the phrase the ‘uncommanded commander’. According to him the
will of the uncommanded commander is law. (it did not originate from Austin).
He suggest that there will be a perpetual conflict in a state if human beings do not subject
themselves to the will of this absolute ruler. In effect, his will is law.
JEREMY BENTHAM
He is the greatest historical figure in British legal positivism. According to Bentham , law is the expressed
will of the sovereign (remember Austin got his ideas from Bentham). He wrote a book ‘Of Laws In
General.’ He accepts Hobbes and argues that when such a law is expressed, it becomes law. He
dismissed the idea that there is a notion of a ‘higher law’. He does not accept the higher law because he
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thinks that we have the power to determine what is good for us and that we just leave it for the
sovereign to determine it.
JOHN AUSTIN
He was a neighbor to John Bentham and James Mill. In 1832 , fifty years after Bentham’s book
‘Of Laws In General’, Austin published his first book ‘The Province of Jurisprudence
Determined’. It was a series of lectures he had delivered in University of London between 182932. In that book, Austin carried the ideas of the forefathers (Conte; Hobbes; Bentham). For
academic discourse, Austin has been described as ‘Bentham’s intellectual clown’.
Austin embraced law as a sovereign command ( Bentham also said the will of the sovereign.).
For Austin, law comprises of the commands of a political sovereign supported by sanctions
of those who are expected to obey. It should be noted that he uses a political sovereign and not
a ‘legal sovereign’.
Austin, it would seem , was by no means the originator of this idea of law being the command of
the sovereign. Indeed, John Erskine, a Scottish natural lawyer wrote in his Pricniples of the Law
of Scotland, 1759, that “Law is the command of a soverign, containing a common rule of the
life of his subjects.”1 However it was Austin who maintained a more expansive version of this
command theory of law to include the habit of obedience and threat of sanctions, an aspect
which later generated fierce opposition.
From his definition, of law , we have a trilogy :
Political sovereign
Commands and
Sanctions
Once these are present, the question of what is the nature of law is summarily but appropriately
answered.2
Political Sovereign:Sovereignty exits , Austin says, where the bulk of a given political society are in the
habit of obedience to a determinate common superior , and that common superior is not habitually
obedient to a determinate human superior. He amplifies certain aspects of this concept.
The common superior must be ‘determinate’. A body of person is ‘determinate’ if ‘all the persons who
compose it are determined and assignable’. Determinate bodies are of two kinds. In one kind the ‘body
is composed of persons determined specifically or individually, or determined by characters or other
description respectively appropriate to themselves’. ( In this category would e placed a sovereign such
as ‘the king’. In the other kind the body ‘comprises all the persons who belong to a given class…In other
words, every person who answers to a given generic description…is…a member of the determinate
body.’ (In this category could be placed a sovereign such as a supreme legislative assembly.) Austin thus,
1
2
Atupare …
Atupare : Constitutional Justice in Africa
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does not accept ‘customary law’ positive law because there is no determinate sovereign. For him,
customary law is a product of generally held opinions of an indeterminate community of persons.
The society must be in ‘the habit of obedience’. If obedience ‘be rare or transient and not habitual or
permanent’ the relationship of sovereignty and subjection is not created and no sovereignty exists ( But
isolated acts of disobedience will not preclude the existence of sovereignty . The policy consideration of
Austin on this point is that it is one of the cardinal principles of a functioning society that the political
sovereign is habitually obeyed. Disobedience will lead to a ‘state of nature’. Austin asks : What will you
call a state which is torn apart in worrying factions? According to him, in such a state , the original
sovereign is lost and that there are two new sovereigns. An instance is the US civil law between 18611865 between the Union and the Confederacy.
‘…habitual obedience must be rendered by the generality or bulk of the members of a society to …one
and the same determinate person , or determinate body of persons .’ (For example: in case a given
society be torn by intestine war, and in case the conflicting parties be nearly balanced, the given society
is in one of two positions. If the bulk of each of the parties be in a habit of obedience to its head, the
given society is broken into tow or more societies. If the bulk of each of the parties be not in the at habit
of obedience, the given society is simply or absolutely in a state of nature or anarchy . It is either
resolved into its individual elements , or into numerous societies of an extremely limited size: of a size so
extremely limited , that they could hardly be styled societies independent and political.’
The common determinate superior to whom the bulk of the society renders habitual obedience must
not himself be habitually obedient to a determinate human superior. ‘He may render occasional
submission to commands of determinate parties. But het society is not independent …if that certain
superior habitually obeys the commands of a certain person or body…Let us suppose, for example, that
a viceroy obeys habitually the author of his delegated powers. And, to render the example complete , let
us suppose that eth viceroy receives habitual obedience from the generality or bulk of the persons who
inhabit his province. The viceroy is not sovereign within the limits of his province, nor are he and its
inhabitants an independent political society. The viceroy , and (through the viceroy) the generality or
bulk of is inhabitants, are habitually obedient or submissive to het sovereign of a larger society He and
the inhabitants of his province are a society political but subordinate..’ So the mere fact that you may
exercise some amount of political power in a state does not make you a sovereign. –remember the
practice in a Federal State where the state government obey the Federal government and the laws of the
state government is subject to that of the federal government.
The power of the sovereign is incapable of legal limitation. ‘Supreme power limited by positive law is a
flat contradiction in terms.’ But what of the position of a sovereign in relation to a society’s
constitution? May a body be sovereign of a sovereign in relation to a society’s constitution? May a body
be sovereign yet subject to the constitutional law? Austin answers, no. A sovereign is subject to no legal
limitation. He explains that : ‘…when we style an act of a sovereign an unconstitutional act…we mean , I
believe, this : That the act is inconsistent with some give principle or maxim; that het given supreme
government has expressly adopted the principle, or , at least, has habitually observed it: that the bulk of
the given society, or the bulk of its influential members, regard the principle with approbation : and that
, since the bulk of the society regard it with approbation, the act in question must thwart the
expectations of the latter and must shock their opinions and sentiments…The epithet unconstitutional
as applied to conduct ofa sovereign , and as used with the meaning which is more special and definite ,
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imports that the conduct in question conflicts with constitutional law.’ Thus , the sovereign is not
limited by positive law but can be limited by positive morality. Where positive morality is his command.
Because, of this , Austin says that het sovereign cannot place legal limitations on himself or his
successors (Here he is trying to contemplate the UK parliamentary system).
Having described the characteristics of sovereignty Austin seeks the locus of sovereignty within the
British constitution. After analyzing the powers of the Crown, the peers, the Commons, ad the
electorate he concludes, ‘Adopting the language of most of the writers who have treated of the British
Constitution, I commonly suppose that the king and the lords, with the members of the commons’
house, form a tripartite body which is sovereign or supreme. But, speaking accurately, the members of
the commons’ house are merely trustees for the body by which they are elected and appointed: and,
consequently, the sovereignty always resides in the king and the peers, with the electoral body of the
commons.’ Thus for Austin, the sovereign is indivisible. the notional head of the sovereign is one and
cannot be divided.
COMMAND: A command according to Austin is an imperative form of a statement of the sovereign’s
wishes, and it is different from an order in that it is general in its application. It is also different from
other expressions of will in that it caries with it the threat of a sanction which may be imposed in the
event of the subject of the command not complying with it. For Austin, command involves three things
It is the wish or desire conceived by a rational being directed at another rational being to do or to
forbear.
Evil : Thus, a statement, wish or desire without evil will not amount to a command but a request.
There must be an intimation of the wish by words or other signs.
Austin says in addition that commands are of two kinds. General or particular. Where a command
‘obliges generally to acts or forbearances of a class, a command is a law…, but where it obliges to a
specific act or forbearance, …a command is occasional or particular…’.
SANCTION: A sanction is some harm, pain or evil which is attached to a command issued by a sovereign
an which is intended as a motivation for the subjects of the sovereign to comply with his or her
commands. The sanction is a necessary element of a command and there must be a realistic possibility
that it will be imposed in the event of a breach. It is sufficient that there be the threat of the possibility
of a minimum harm, pain or evil.
Apart from the sovereign, commands and sanctions, Austin says there are three rules which are
sometimes termed as laws but which are not imperative in nature :
Declaratory laws : These laws do not have an obligation but merely clarify the legal position. They
declare rights and privileges. (see Article 2)
Laws to repeal laws : In the event of trying to change an existing law, these laws give the processes to be
followed. Failure to repeal won’t result in any sanction.
Laws of imperfect obligation without attaching sanction: The obligation does not go with sanction. So
here you have an obligation to do but you will not be sanctioned if you don’t do According to Austin,
these three are not necessarily laws.
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BENTHAM & AUSTIN COMBINED
According to Austin, law is a command given by a determinate common superior to whom the bulk of a
society is in the habit of obedience and who is not in the habit of obedience to a determinate human
superior, enforced by a sanction. It is the element of command that is crucial to Austin’s thinking, and
the concept of law expressed by Austin is sometimes described as the ‘command theory’ (or the
‘imperative theory’) of law.
Austin was not the first to expound the command theory of law. In many of his ideas, Austin followed
those of Jeremy Bentham who is generally credited with being the founder of the systematic imperative
approach to law, although most of what he wrote in this regard was not in fact published until almost a
century after his death. For example , in A Fragment on Government, written in 1776 Bentham had said,
‘When a number of persons (whom we may style subjects) are supposed to be in the habit of paying
obedience to a person, or an assemblage of persons, of a known and certain description (whom we may
call governor or governors) such persons altogether (subjects and governors) are said to be in a state of
political society…’ And in Of Laws in General he said , ‘A law may be defined as an assemblage of signs
declarative of a volition conceived or adopted by the sovereign in a state , concerning the conduct to be
observed in a certain case by a certain person or class of persons , who in the case in question are or are
supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of
certain events which it is intended such declaration should upon occasion be a means of bringing to
pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in
question.’
Bentham’s thinking is in respects more penetrating than that of Austin. 3 Austin placed constitutional
law under the heading of ‘law strictly so called’. Bentham, recognizing that such should be considered
part of the general body of the law, seeks to reconcile the existence of a sovereign, who is subject to no
law, with law to which the sovereign is subject. He says ‘There yet remain a class of laws which stand
upon a very different footing from any of those that have hitherto been speaking have for their passible
subjects, not the sovereign himself, but those who are considered as being in subjection to his power.
But there are laws to which no other person in quality of passible subjects can be assigned than the
sovereign himself. The business of ordinary sort of is to prescribe to the people what they shall do: the
business of this transcendent class of laws is to prescribe to the sovereign what he shall do: what
mandates he may or may not address to them; and in general how he shall or may conduct himself
towards them …It appears then that there are two distinct sorts of laws, very different from each other
in their nature and effect: both originating indeed from the sovereign, (from whom mediately or
immediately all ordinances in order to be legal must issue) but addressed to parties of different
descriptions: the one addressed to the sovereign, imposing an obligation on the sovereign : the other
addressed to the people , imposing an obligation on the people …Here it may naturally enough be asked
what sense there is in man’s addressing a law to himself, and how it is a man can impose an obligation
upon himself. …But take into account an exterior force, and by the help of such a force it is as easy for a
severing to bind himself as to bind another.’ As to the nature of the exterior force, Bentham suggested
3
J G Riddal ‘Jurisprudence’
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that this might take the form of a ‘religious sanction’, or a ‘moral sanction’ exerted by the subjects of the
state in question, or by foreign states.
The imperative theory of law, together with the notion of sovereignty and the illimitable nature of a
sovereign’s power can thus be traced back into the writings of the sixteenth and seventeenth centuries.
But while Austin was not the first to put forward all the elements which made up his concept of law, and
while Bentham’s thinking on the imperative theory of law was in many respects more penetrating than
that of Austin, it is nevertheless Austin who is generally credited with the first full formulation of the
theory : it was Austin who both drew the elements together and presented them as a coherent whole ,
and who gave the theory a central place in the conception of law.
CRITICISIMS TO AUSTIN’S COMMAND THEORY OF LAW
Austin’s views met with criticism, at least from two fronts, namely the deficiency of the command
theory and the separation of morals from law. 4
HART’S CRITICISMS TO THE COMMAND THEORY OF LAW
Even among positivists, Austin encountered resistance principally from HLA Hart.
Hart’s criticisms fall under three main heads :
firstly , that laws as we know them are not like orders backed by threats.
The notion of the habit of obedience is deficient
Austin’s notion of sovereignty is deficient. Each of these will be taken seriatim.
Laws as we know them are not like orders backed by threats.
The content of law is not like a series of orders backed by a threat. Some laws, Hart concedes, do
resemble orders backed by threats, for example criminal laws. But there are many types of law that do
not resemble orders backed by threats, for example laws that prescribe the way in which valid contracts,
wills or marriages are made do not compel people to behave in a certain way (as do laws that , for
example , require the wearing of seat belts in a car). The function of such laws is different. They ‘provide
individuals with facilities for realizing their wishes by conferring legal powers upon them to create
conditions, structures of rights and duties…’ Again, laws of a public nature in the field of procedure ,
jurisdiction and the judicial process , are not comparable with orders backed by threats. Such laws are
better regarded as power –conferring rules. Hart contends therefore that orders backed by threats such
as the criminal law is distinct from power conferring rules such as the law of contract and that Austin
fails to draw such distinction. “But there are important classes of laws where this analogy with orders
backed by threats altogether fails, since they perform a quite different social function. Legal rules
defining the ways in which valid contracts or wills or marriages are made do not require persons to act in
certain ways whether they wish to or not. Such laws do not impose duties or obligations. Instead, they
provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to
create , by certain specified procedures and subject to certain conditions, structure of rights and duties
within the coercive framework of the law. The power thus conferred on individuals to mold their legal
4
Atupare…
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relations with others by contracts, wills, marriages, & co, is one of the great contributions of law to social
life; and it is a feature of law obscured by representing all law as a matter of orders backed by
threats…Just as there could be no crimes or offences and no murders or theft if there were not criminal
laws of the mandatory kind, which do resemble orders backed by threats , so there could be no buying
selling, gifts, wills , or marriages, if there were no; for these latter things, like the orders of courts and the
enactments of law-making bodies, just consist in the valid exercise of legal powers.”
If someone is going to contend that all laws are like orders backed by threats then they have got, Hart
says , to argue that nullity (eg nullity resulting from failure to comply with the Wills Act) is a sanction.
Hart confutes the notion. Nullity may well not be an ‘evil’ to the person who has failed to comply with
some requirement (for example , as where a child who finds that a contract he has purported to enter
into is not enforceable against him). And where a measure fails to become law because it is not passed
by the requisite majority, this failure cannot meaningfully be thought of as a sanction. “The provision for
nullity is part of this type of rule itself in a way which punishment attached to a rule imposing duties is
not. If failure to get the ball between the post did not mean the ‘nullity’ of not scoring, the scoring rules
could not be said to exist”.
The range of application of law is not the same as the range of application of an order backed by a
threat. In Austin’s scheme the law-maker is not himself bound by the command he gives: the order is
directed to others not to himself. It is true, Hart concedes, that in some systems of government this is
what may occur. But in many systems of law legislation has a force that is binding on the body that
makes it. So as a law-maker can be bound by his own law, the Austinian concept of sovereign –
command-obedience – sanction cannot be of universal application and so fails. A supporter of Austin
may attempt to overcome this objection by seeking to distinguish between the law-maker in his official
capacity and the law – maker in his private capacity: in the first capacity hemakes laws; in the second he
, long with all the other citizens, is bound by them. hart dismisses this view of the law-making process as
failing to represent what actually occurs. What the legislature does, he says, is to exercise powers
conferred by rules, within the ambit of which he himself may often fall.
The mode of origin of law is different form the mode of origin of an order backed by a threat. An order
backed by a threat originates from a deliberate act performed at a specific time. But not all laws can be
said to have their origin in a deliberate datable act. For example those customs that are recognized as
law within a particular society do not stem from any deliberate datable act. Hart recognizes the
existence of an argument in support of the contention that custom does so originate; namely that a
custom becomes law when it is recognized as representing the law and is enforced by a court: the
sovereign , through the court, orders that the custom should have the force of law. Hart deals with this
point saying that customs do not necessarily attain legal status only by application by a court. Just as a
statute has legal force before it is (and irrespective of whether it ever is) applied by a court, so a custom
can be accepted as having legal force before it is applied by a court. Thus a custom with legal force does
not necessarily originate from a datable act.
Dealing further with the question of how custom attains legal status, Hart acknowledges that those who
support the command theory of law could argue that custom acquires legal force as a result of a tacit
order by the sovereign to his judges that a certain custom should henceforth be treated as law, and to
his subjects to obey a judge’s decision reached on the basis of a pre-existing custom. he illustrates the
matter thus. ‘A sergeant who himself regularly obeys his superiors , orders his men to do certain fatigues
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and punishes them when they disobey. The general, learning of this, allows things to go on , though if he
had ordered the sergeant to stop the fatigues he would have been obeyed. In these circumstances the
general may be considered tacitly to have expressed his will that the men should do the fatigues. His
non-interference , when he could have interfered, is a silent substitute for the words he might have used
in ordering the fatigues.’ So equally , when a sovereign learns that a custom is being enforced as law and
does not intervene, then at that moment he tacitly orders that the custom should have the force of law.
So the custom becomes law by a deliberate datable act-the decision not to interfere. So if this is
accepted –the way in which custom becomes law can be accommodated within the command theory.
hart will have none of this. The fault in the argument, he explains , lies in the fact that in any modern
state it is in practice rarely possible to say at what point in time a sovereign, whether a supreme
legislature or the electorate learns of the application of a custom as law and decides not to interfere. So
the tacit approval theory fails. Thus, since custom cannot be shown to become law by a deliberate
datable act, the command theory , for this reason as well as those set out earlier , falls down.
Checks : Austin limited only on legal Sanctions. But as Bentham suggests, there could be religious
sanctions as well.
The notion of the habit of obedience is deficient : To explain the ways in which he finds the notion of
the habit of obedience to be deficient hart tells a story. Suppose, he says, there is a country in which an
absolute monarch has ruled for a long time. The population ahs generally obeyed the orders of the king,
Rex, and are likely to continue to do so. Rex dies leaving a son, Rex II. There is no knowing on Rex II’s
accession, whether the people will obey the orders he begins to give when he succeeds to the throne.
Only after we find that Rex II’s orders have been obeyed for some time can we say that the people are in
a habit of obedience to him. During the intervening time, since there is no sovereign to whom the bulk
of society are in the habit of obedience, there can, according to Austin’s definition, be no law. Only
when we can see that the habit of obedience has become established can we say that an order by Rex II
is a law. Yet, in practice, if Rex Ii was Rex I’s legal successor we would regard Rex II’s orders as laws from
the start. So the notion of the habit of obedience fails to account for what our experience tells us in fact
happens: it fails to account for the continuity to be seen in every normal legal system, when one ruler
succeeds another. What is in fact found in any legal system is the existence of rules which secure the
uninterrupted transition of power from one law-maker to the next. These rules ‘regulate the succession
in advance, naming or specifying in general terms the qualifications of and mode of determining the lawgiver. In a modern democracy the qualifications are highly complex and relate to the composition of a
legislature with a frequently changing membership , but the essence of the rules required for continuity
can be seen in the simpler forms appropriate to our imaginary monarchy. If the rules provides for the
succession of the eldest son, then Rex II has a title to succeed his father. He will have the right to make
law on his father’s death, and when his first orders are issued we may have good reason for saying that
they are already law, before any relationship of habitual obedience between him personally and his
subjects has had time to establish itself. Indeed such a relationship may never be established . Yet his
word may be law; for Rex II may himself die immediately after issuing his first orders; he will not have
lived to receive obedience, yet he may have had the right to make law and his orders may be law.
‘ In explaining the continuity of law-making power through a changing succession of individual
legislators, it is natural to use the expressions “rule of succession”, “title”, “right to succeed’, and “right
to make law”. It is plain, however, that with these expressions we have introduced a new set of
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elements , of which no account can be given in terms of habits of obedience to general orders.’ So in this
further respect the command theory is proved to be inadequate.
Not only does the habit of obedience fail to account for the continuity of law when Rex II succeeds Rex I,
it fails to account for the persistence of the legal force of Rex I’s orders after his death. Yet, unless and
until Rex II countermands an order by Rex I, the orders of Rex I will ,we know from what happens ,
continue to be regarded as law. If it is contended that the persistence of the legal force of Rex I’s orders
is to be accounted for by Rex II having , on his accession, tacitly ordered that Rex I’s orders should
continue to be law, then the same objections to this notion can be made here as were made when the
notion was sought to be used earlier to deal with the question as to how customs acquire legal force.
The answer to the problem of why Rex I’s orders are still law after his death is , Hart says, in principle
the same as the answer to eth earlier problem, Whey are Rex Ii’s orders law before the populace have
acquired the habit of obedience? The answer to both problems ‘involves the substitution , for the too
simple notion of habits of obedience to a sovereign person of the notion of currently accepted
fundamental rules specifying a class or line of persons whose word is to constitute a standard of
behavior for the society, ie who have the right to legislate. Such a rule , though it must exist now, may
in a sense be timeless in its reference: it may not only look forward and refer to the legislative operation
of a future legislator but it may also look back and refer to the operations of a past one.’
Atupare brings out the deficiency in the notion that the sovereign is habitually obeyed in the Austinian
sense as follows “For instance, locating of the Austinian sovereignty in modern, young constitutional
democracies like Ghana and Nigeria may be difficult. The people in these states retain the power, in the
Lockean sense, to change the Constitution through amendment, when the legislative authority is so
wicked to design laws against their general interest. in that case, the assertion that people habitually
obey a legally unlimited sovereign looks feeble. Sovereignty in this case is exercised by the people
[Article 1 of the 1992 Constitution] and obedience in its non-habitual form is rendered to be the people
themselves. Besides, transitional regimes or regimes set up through coups d’etat in Africa and elsewhere
would have difficulty with this conception. In such states, new leaders are far from being habitually
obeyed by their citizens.”5
So here again the command theory fails to explain what we know happens in any actual legal system.
Austin’s notion of sovereignty is deficient: In Austin’s theory of law , while there may be political limits
on a sovereign’s power (eg regard for popular opinion), there can be no legal limits on a sovereign’s
powers, since, if he is sovereign, he does not obey any other legislator. Thus, according to Austin, if law
exists within a state , there must exist a sovereign with unlimited power. But when we examine sates in
which no one would deny that law exists we find supreme legislatures the powers of which are far from
unlimited. For example, the competence of a legislature may be limited by a written constitution under
which certain matters are excluded from the scope of its competence to legislate upon. Yet no one
would suggest that a legislative act by such a legislature did not create valid law. We cannot say that
such restrictions are merely conventions or have merely moral force. If the restrictions are overstepped
the law purported to have been made will be declared invalid by the courts. So the restrictions have
legal force. Thus ‘…the conception of the legally unlimited sovereign misrepresents the character of law
5
Atupare …
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in many modern states’.6To understand the true nature of a legal system and how law comes into
existence we need to think in terms , not of a sovereign with unlimited powers, but in terms of rules ,
rules that confer authority on a legislature to legislate, rules used by the courts ‘as a criterion of the
validity of purported legislative enactments coming before them’:7 to show that a law is valid’…we have
to show that it was made by a legislator who was qualified to legislate under an existing rule’.8
If in the face of this argument, someone still clings to Austin’s view of law as the command of a
sovereign it is necessary for them to show that even if , as they may concede, the powers of the
supreme legislator may be limited , a sovereign does nevertheless exist, a sovereign ‘behind the
legislature’, a sovereign who (or which) makes the rules which determine the legislature’s competence.
If such a sovereign can be found one hole in the bottom of Austin’s bucket is plugged.
Those who seek such a sovereign may contend that ultimate sovereignty rests with the electorate. But if
it is in the electorate that sovereignty rests then when we apply this idea to Austin’s concept of law as
the commands of a sovereign to whom the bulk of the populace is in the habit of obedience, we find
ourselves saying that the populace (or that part that constitutes the electorate) is in the habit of
obedience to itself. ‘Thus the original clear image of a society divided into two segments : the sovereign
free form legal limitation who gives orders , and the subjects who habitually obey, has given place to the
blurred image of a society in which the majority obeyorders given by the majority or by all. Surely we
have here neither “orders” in the original sense (expression of intention that others shall behave in
certain ways) or “obedience”.
In order to meet this criticism, Hart explains , ‘a distinction may be made between the members of the
society in their private capacity as individuals and the same persons in their official capacity as electors
or legislators. Such a distinction is intelligible; indeed many legal and political phenomena are most
naturally presented in such terms; but it cannot rescue the theory of sovereignty even if we are
prepared to take the further step of saying that the individuals in their official capacity constitute
another person who is habitually obeyed. For if we ask what is meant by saying of a group of persons
that in electing a representative or in issuing an order, they have acted not “as individuals” but “in their
official capacity”, the answer can only be given in terms of their qualifications under certain rules and
their compliance with other rules , which define what is to be done by them to make a valid election or a
law. It is only by reference to such rules that we can identify something as an election or a law made by
this body of persons.’ And since such rules define ‘what the members of the society must do to function
and an electorate (and so for the purposes of the theory as a sovereign) they cannot themselves have
the status of orders issued by the sovereign, for nothing can count as orders issued by the sovereign
unless the rules already exist and have been followed.’
These arguments against the notion of a sovereign with legally unlimited powers , Hart concludes , like
those put forward earlier ‘are fundamental in the sense that they amount to the contention that the
theory is not merely mistaken in detail, but that the simple idea of orders, habits, and obedience ,
cannot be adequate for the analysis of law. What is required instead is the notion ofa rule conferring
powers, which may be limited or unlimited , on persons qualified in certain ways to legislate by
complying with a certain procedure.’
6
H L A Hart The Concept of Law p 67
Ibid, p 68
8
Ibid, p 69
7
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JG Riddall in ‘Jurisprudence’ suggests that both Hart’s theory of law and that of Austin in one respect
share common ground, that of their approach to jurisprudence. Both set out to determine the nature of
law by the process of analysis: they are both members of the analytical school of jurists, jurists who
seek to strip the flesh from the skeleton to find the structure beneath. It is from Austin’s conclusions
that Hart dissents , not from his method and approach
OTHER CRITICISMS
‘ On a different ground, Salmond protests that the Austinian conception of law does not treat seriously
the issue of legal rights, as it fails to provide for a place within the entire analysis of an ethical basis for
rights. It “attempted to deprive the idea of law of that ethical significance which is one of its most
essential elements”. Salmond’s rejection of the command theory based on ethical considerations in
respect of rights resonates well with a functional conception of public law that protects the rights and
wellbeing of the citizenry. It also speaks to a constitutionally limited government where law is not the
exclusive command of the legislator, but an expression of a composite of well-considered values of the
people from whom the power of the legislator is derived.’9
sovdeclaratory laws , power conferring laws, and duty imposing laws
Look at the issue with sovereignty-in constitutional democracite,s the soveirgn is the people and not
parliament and it is difficult to oitn to a particular one person-look at our 1992 constitution
RULE OF RECOGNITION
According to Hart, wherever there is a rule of recognition, people have a way of finding out what the
primary rules are.10 In modern societies there may be various sources of law. These may include, for
example a written constitution, legislation , and judge’s decisions. These may e placed in an order of
superiority; for example, legislation may be able to override judges’ decisions. In the British system,
judicial precedent is subject to legislation. Judicial precedent is , however, a separate soruce of law: it
does not derive its authority as a source of law from legislation. Thus precedent is subordinate to
legislation but independent of it as a source of law.
Hart thus proposed a “rule of recognition”, a test accepted by officials for determining what normative
standards form part of the legal corpus or what factual propositions should be accepted as valid law in a
community. The significance of the rule of recognition is to make law-making subject to to the idea that
“nothing which the legislators do makes law unless they comply with fundamentally accepted rules
specifying the essential law-making procedures”.11 Certainly , the sovereign lawmaker must be subject
to the secondary rules, including , most importantly, the rule of recognition; it cannot succeed in making
‘law’ unless its ‘law’ complies with the master rule that defines what ‘law’ is.
In any society, is there one rule of recognition, or may there be more than one ? From one point of view
there may be several –the constitution, legislation and judicial decisions, each of these can provide
9
Atupare…
Hart says legal rules are of two kinds, ‘primary’ rules and ‘secondary’ rules. Primary rules are ones which tell
people to do things, or not to do things. The lay down duties. These primary rules are to do with physical matters.
Secondary rules are ones which let people , by doing certain things, introduce new rules of the first kind, or alter
them. They give people (private individuals or public bodies) power to introduce or vary the first kind of rule.
11
Atupare : constitutional justice in Africa
10
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authority for establishing the validity of a law. From another point of view, the better view , there can be
only one rule of recognition in any one legal system, that which establishes the supreme source of
authority for legal validity, rule that may have subsidiary rules but which laws down the order of priority
between them.
A rule of recognition ( that is one enabling people to know what is and what is not law) is seldom in
practice expressed as an actual law, though occasionally the courts may make some statement about
how the rule works, eg when they say that Acts of Parliament override other sources of law.
When people say that something or other is the law ‘because parliament has said so’ they show that
they accept this as a rue of recognition; they are looking at the rule from an internal point of view.
Someone looking at the rules of recognition from an external point of view , someone who is an outsider
who does not accept the British rules of recognition, would say ‘In Britain, they accept as law whatever
the Queen in Parliament enacts’.
When we say that a rule is ‘valid’ within any particular system, we mean that it complies with the
rules of recognition of that system. The validity of a rule does not depend on the fact that the rule is
obeyed more often than it is not obeyed. There may, however be a rule of recognition that provides
that if a rule is not obeyed over a long period, it should cease to be a rule: there maybe some kind of
‘rule of obsolescence’. But nevertheless , the validity of a rule, and the question of whether it is obeyed,
are two separate matters.
The fact that there are various rules of recognition, with one of them supreme –a hierarchy of rules of
recognition, with one of them at the top-should not be thought of as meaning that in any legal system
there is one supreme, sovereign, legislative power which is legally unlimited. Just because a particular
rule of recognition is supreme, this does not mean that any legislative body necessarily has unlimited
power. For example , in the United States there are rules of recognition but there is no legislator with
unlimited powers.
Now , to introduce a further idea, hart asks us to suppose that someone questions whether a purported
bye-law of the Oxfordshire County council is valid. It is found that it is valid because it was made in
exercise of powers conferred by a statutory order made by the Minister of Health (So the bye-law
satisfies this ‘rule of recognition’.) The validity of the statutory order made by the Minister is
questioned. It is found that it valid because it was made according to the provision of a statute
empowering the Minister to make such an order. Next, the validity of the statute is questioned. We find
that the statute is valid because it was passed by Parliament and signed by the Queen. At this point we
have to stop, since, according to our notions in this country, what the Queen in Parliament enacts is law.
the rule that what the Queen in Parliament enacts is law is a rule of recognition. In this , it is like the
other rules of recognition mentioned supra . But it is unlike the others in that there is no rule of
recognition to test the validity of this rule : there is no rule of recognition to test the validity of the rule
that what the Queen in Parliament enacts is law. So this rule of recognition is the ultimate rule of
recognition.
A statement that a statue is valid because it complies with the rule that what the Queen in Parliament
enacts is law, is made from an internal point of view. It is internal because it looks at the matter from
the viewpoint of people inside the legal system: they accept that what the Queen in Parliament enacts is
law. If we say that in England the rule that what the Queen in Parliament enacts is law is used by the
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courts and citizens as the ultimate rule of recognition , we are making the statement from an external
point of view.
We usually only talk of a rule being valid within a legal system. We say that the law is valid because it
complies with the rule of recognition of that system. But Hart explains , no question can arise as to the
validity of the rule of recognition itself; it can neither be valid nor invalid-it is simply accepted within
the system as being approprpate fro deciding what is an what is not a valid rule.
In a legal system which had only primary rules, because of the absence of any rule of recognition (a
secondary rule) any statement that a certain rule existed cold only be made as a statement of fact, such
as might be made (and verified by observation) by an outside observer. On the other hand, where there
is a mature system of law, with primary and secondary rules, including a rule of recognition then a
statement that a rule ‘exists’ can be made, not only from an external point of view, as a statement of
fact, but also from an internal point of viw. In the latter case, the statement that the rule ‘exists’ carries
with it the implication that the rule complies with the system’s rule of recognition and is thus valid
according to the system’s test of validity.
A rule of recognition does not fit into any of the conventional categories used in classifying laws in a
legal system. For example, a rule of recognition does not fit in to either of Dicey’s two categories of
constitutional arrangements-laws strictly so called (eg statutes etc) and conventions (eg that the Queen
does not refuse to assent to a bill passed by Parliament).
Distinct from the problem of how to classify a rule of recognition, there is the problem of knowing
how to show that a rule of recognition, which underlies the constitution and the whole legal system,
and which surely must be law, is law. Some people would answer thisquestion by saying that at the
base of any legal system there is something which is ‘not law’, which is ‘pre-legal’ or ‘meta-legal’. Others
would say that this something which underlies the legal system is merely ‘political fact’. The truth is that
the rule of recognition is both law and fact : we cannot convey the idea of a rule of recognition
adequately if we think we must label it either ‘law’ or ‘fact’. The best way of understanding the nature of
a rule of recognition is to regard it as being capable of being looked at from two points of view-from an
external point of view (that of an outside observer who notes that, as a matter of fact, the rule exists in
the actual practice of the system) and from an internal point of view ( that of someone inside the system
who accepts the rule as the correct one for determining what is the law).
“The statement that now a rule exists may now no longer be what it was in the simple case of customary
rules-an external statement of the fact that a certain mode of behavior was generally accepted as a
standard in practice. It may now be an internal statement applying an accepted but unstated rule of
recognition and meaning (roughly) no more than ‘valid given the system’s criteria of validity’. In this
respect, however, as in others a rule of recognition is unlike other rules of the system. The assertion that
it exists can only be an external statement of fact. For whereas a subordinate rule of a system may be
valid and in that sense ‘exist’ even if it is generally disregarded , the rule of recognition exists only as a
complex, but normally concordant, practice of the courts, officials, and private persons in identifying the
law by reference to certain criteria. Its existence is a matter of fact.”12
checks: rules of change; rules of recognition and rules of adjudication
12
H L A Hart The Concept of Law p 110
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HANS KELSON-PURE THEORY OF LAW
Hans Kelsen began thinking about the nature of law during the course of examining the Austrian
Constitution before eth First World War. Troubled during the first war , he assisted in the drafting of
Austrian First constitution ( 1920 Constitution) . The first full formulation of his theory appeared in 1918.
the first presentation of his theory in English was in 1934 after Kelsen had gone to the United States. In
1945, he published General Theory of Law and Stateand after various articles, a second , revised, edition
in 1967. A complete presentation of the theory was made in 1964.
Kelsen called his theory (which he modified over the course of his life) the ‘pure theory of law’, his
object being to identify the very essence of law, the one thing that makes something law, as opposed to
the other forms of direction that can exist in any society. (Kelsen was not the first to seek such a theory.
Grotius, in 1625 in the Prolegomena to De lure Belli ac Pacishad written : ‘With all truthfulness I aver,
just as mathematicians treat their figures as abstracted from bides, so in treating law I have withdrawn
my mind from every particular fact).
Kelsen has often been described a positivist but Kelsen’s normativism is conceptually distinct from the
empirical tradition of legal positivism, upheld in the post-war period by Hart. Kelsen rejects legal
positivism because it confuses the law with fact. For Kelsen the law consists of norms . the relationship
between norms is one of “imputation”, not causality. natural science is concerned with causal
explanations of the physical world, whereas normative science , such as law or ethics is concerned with
conduct as it ought to take place determined by norms.
The separation of laws from morals by Kelsen is seen in two main ways :
the first is his underscore for positivism leanings
The next explain his theory that law must be pure and that it must stay uncontaminated by other values.
One of those values being morality. Other values include regulation , ethics etc. It has been argued that
these other factors (religion, ethics, politics) which have adulterated law hence making it impure may
suggest that Kelson’s notion of law is not in line with the general notions that positivists share. Thus for
positivists, law and morality are not fused. It should be noted that keelson does not distance himself
from this new thing, he only includes other factors like ethnic and religion. One may argue that religion,
and ethnicity all come within the purview of morality. However, to Kelson, these are distinct.
So Kelsen admits the study of law has been “adulterated” by other disciplines. These disciplines deal
with subject matters “closely connected with law. But the pure theory of law, Kelsen insists, “undertakes
to delimit the cognition of law against these disciplines…because it wishes to avoid the uncritical
mixture of methodologically different disciplines …which obscures the essence of law”. 13
NORMS
13
Lloyd : quoted from The pure theory of law, p.1
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Kelson writing in German , used the German word norm. The principal meaning of norm in German is
‘standard’. Thus , it is the standard to which human conduct are supposed to be measured. According to
keelson, for an act to be deemed a legal, such act must conform to a legal norm. What makes the jailer’s
turning the key a legal act, is the existence of the norm that ends with , ‘…then the jailer ought to turn
the key’. kelsen uses as an example an order by one person to hand over money to another . The order
may be by a gansgster or by a tax official. Both have wheat Kelsen calls the same ‘subjective meaning’ (ie
as to what actually happens, an order is made to hand over money). But if the tax official’s order is made
in accordance with a valid norm, then the order has what Kelsen calls an ‘objective’ meaning (ie a legal
significance). So it is the existence of the legal norm that distinguishes the order of the official from that
of the gangster.
According to Kelsen, the validity of every norm depends on the validity of another norm, the whole
series forming , as it were an ascending hierarchy.
THE GRUNDNORM
If a norm can be derived from another norm, does this mean one can continue this derivation ad
infinitum? Theoretically , yes, but, in practice, since norms are concerned with human conduct, there
must be some ultimate norm postulated on which all the others rest. This is the Grundnorm (basic
norm). In any legal system it is only by presuming the validity of the original , basic norm (which Kelsen
calls the ‘grundnorm’),that the norms that descend from it can be counted as valid. ( in this aspect of
this theory Kelsen showed the influence of Kant, for whom in any branch of knowledge, some things
must be presupposed. Kant believed that it was a task of the philosopher to search of the universal
elements of knowledge that have to be presupposed the order that sense can be made of all the rest).
According to Harris ‘When and Why does the Grundnorm Change?’ ‘The Grundnorm is the hypothesis
which closes up the arch of legal logic’- the Grundnorm is the keystone at the top that locks , and holds,
the arch in place. Remove this and the whole edifice of legal validity collapses.
Simply put, the Grundnorm is the ‘master norm’. When the norms are arranged in the form of a
pyramid, the Grundnorm occupies the apex. So in our Ghanaian Jurisprudence,the Grundnorm may be
stated to be the 1992 Constitution. This may be so by the combined effects of Article 1(2) and Article 11
of the constitution. Under Article 1(2) , the Constitution has been stated to be the supreme law and any
other law found to be inconsistent with any provision of the Constitution shall ,to the extent of the
inconsistency be void. By analogy, the Constitution of Ghana becomes the Grundnorm and for any other
norm, (other laws of Ghana ) to be valid, it must be consistent with the Constitution which is the
Grundnorm. These other norms can be gleaned from Article 11 which gives a list of the laws of Ghana –
the constitution, enactments made by or under the authority of the Parliament established by the
constitution; any Orders, Rules and Regulations made by any person or authority under a power
conferred by the Constitution; existing law and the common law. The process by which each of these
norm gets more and more specific keelson terms as concretization. Thus, the higher norms will be
concerned with how law, eg. Statute law, is created; then at the next tier with the administration of
justice; and finally with a norm that decrees certain action in a specific case
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The validity of the Grundnorm is assumed . But why ? Or rather, how do we tell whether in any legal
system the validity of the Grundnorm is to be assumed ? Kelsen’s answer is that we look to see what
happens. If the judge does , as the norm requires, pass sentence and the jailer does , as the norm
requires, turn the key –if the norms of the system are observed, then we have no option but to accept
that the validity of the Grundnorm is presupposed
Thus we assume the validity of the Grundnorm if the norms that descend from it are observed if the
‘oughts’’ are implemented. So we can say that with regard to the individual norms of a system, validity
depends on another ‘higher’ norm. With regard to the grundnorm, validity depends on efficacy. With
this in mind we are in a position to understand what Kelsen means when he defines law as ‘A system of
coercion imposing norms which are laid down by human acts in accordance with a constitution the
validity of which is pre-supposed if it is on the whole efficacious.’ So, in establishing whether the
grundnorm is valid we look to the implementation of the individual norms, ie we look to see whether
the directions to officials are carried out.
The question which arises then is If the test of the validity of the Grundnorm is efficacy, what is the test
of efficacy ? When can we say that efficacy exists? Efficacy is to be judged , Kelsen says, by two criteria.
The first test is to see whether the rules that can be deduced from legal norms are obeyed, for example
whether the rule ‘Do not drive over 70 mph’ (the rule deduced from the norm ‘If X drives over 70 mph,
then Y ( a policeman) ought to…’) is obeyed. Secondly, if the rule is not obeyed , whether the primary
norm , that directed to officials to take specified action , is complied with. the addition of this second
test , and for Kelsen this is the test that has primacy , throws new light on the notion of efficacy.
(Austin’s ‘habit of obedience’ took account only of the first test).
SANCTIONS
For Kelsen , every system of norms rests on some type of sanction, though this may be of an
undifferentiated kind, such as disapproval by a group. The essence of law is an organization of force,
and law thus rests on a coercive order designed to bring about certain social conduct. Sanctions are the
key characteristic of law not because of any supposed psychological effectiveness but because it
stipulates that coercion ought to be applied by officials wheredeficits are committed. The law attaches
certain conditions to the use of force, and those who apply it act as organs of the community. Kelsen
basis this view on the historical facts (as he asserts) that there has never been a “large” community
which was not based on a coercive order. Kelsen commits himself to the view that every norm to be
“legal” must have a sanction, though this may be found, as for instance in constitutional law, by taking it
together withother norms with which it is interconnected. Kelsen treats any breach of a legal norm as a
‘delicit,” whether this would normally be described in traditional terms as falling within the criminal or
the civil law. For Kelsen, to be legally obligated to to a certain behavior means that the contrary
behavior is a delict and as such is the condition of a sanction stipulated by a legal norm. Since Kelsen
regards as a sanction as an essential characteristic of law, no conduct can amount to a delict unless a
sanction is provided for it. This view has been criticized , with some warrant , on the ground that though
the absence of of a sanction may make law ineffective, this is not the same as its being invalid, nor does
the absence of a sanction necessarily entail invalidity. Emphasis on sanctions also underplays the
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significance of duties. There aer many examples of public authorities which have obligations imposed on
them but where no sanctions as such follow from default. 14
A further feature of Kelsen’s analysis of the sanctionist view of law is that legal norms are stated in the
form that , if a person does not comply with a certain prohibition, then the consequences is that the
courts ought ot inflict a penalty , whether criminal or civil. It follwos that for Kelsen the content of legal
norms is not primarily to impose duties on the subject to conform, but rather to lay down what judges
or officials are expected to do in the event of a delict. Accordingly, for Kelsen the norm which lays down
the sanction , involving a direction to the judge , is the primary norm, though he recognized that there is
a secondary norm which stipulates the behavior which the legal order endeavors to bring about by
announcing the sanction. This conflicts with the orthodox view that duties set standards of conduct and
accordingly impose obligations on society as a whole.
Revolutions
What happens to the law in the event of a revolution? Kelsen says that after a successful revolution the
Grundnorm changes. Once an existing regime , A, has been replaced by a new one, B, and the laws of
regime B are observed then the Grundnormof the new regime becomes , ‘The constitution established
by regime B, and the laws made under it, ought to be observed.’ It is only on this assumption that the
validity of the laws of the new regime can rest.
No one would maintain that ‘after a successful revolution the old constitution and the laws based
thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by
the old order itself’. 15
A shrewed test for assessing whether the grundnorm has changed ahs been suggested by Harris –it has
changed when a person who proposed to write a law textbook presenting the law of the former regime
would be considered as fulfilling no juristically useful purpose.
In dealing with revolutions we have spoken of a change in the Grundnorm , the key stone in the arch of
logic of legal validity. But because the keystone is changed, this does not mean that all the previous
Grundnorm have changed. The laws of the previous regime will only continue if their continuance is
sanctioned by the Grundnorm of the new regime. Applying the test of efficacy in revolutions, the old
regime will only be displaced if the new revolution is efficacious. Hence failure to succeed in a revolution
or coup d’tate, hence not being efficacious will result in treason.
THE RULE OF RECOGNITION: A COMPARISON 16
There are superficial similarities between the Grundnorm and Hart’s rule of recognition. The rule
provides authoritative criteria for identifying primary (and, presumably, other secondary) rules. How are
these rules of recognition to be ascertained? Hart points out that such rules are often not expressly
stated, but can be shown by the way in which particular rules are identified by the courts and other
14
Lloyd’s Introduction to Jurisprudence p. 312
General Theory of Law and State p 118
16
See Lloyd
15
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officials. Whether a primary rule is “valid” really amounts to saying no more than that it passes all the
tests provided by the appropriate rule of recognition.
But in what sense can the rules of recognition themselves be regarded as “valid”? hart appears to
recognize that such rules may themselves be formed on a hierarchical pattern and that, therefore, the
validity of one or more of these rules may depend upon some higher rule of recognition, but this still
leaves open the Kelsenite question as to the status of any ultimate rule since the only point is whether it
is accepted by those who generate the system. There is, therefore, no assumption of validity, but its
acceptance is simply factual. Should we then call the basic norm of the system either law or fact? In a
sense , avers hart, it is both. The rule does provide crtierai of validity within the system and , therefore it
is worth calling such a rule, law: there is, however, also a case for calling it fact insofar as it depends for
its existence upon actual acceptance. This fact of acceptance may be looked upon from two points of
view, namely, form the point of view of the external statement of fact that the rule exists in the actual
practice of the system, and also from the internal statements of validity which may be made by those in
an official capacity who actually use it to identify law.
Hart also points out that although the notions of validity and efficacy may be closely related in a legal
system, they are by no means identical. Their close relationship is demonstrated by the fact that if there
is so little efficacy in a whole system of law, it would really be pointless to attempt to assess what actual
rights and duties might exist there under or the validity of particular rules.
As to the question whether every system of law must be referable to some basic norm, Hart rejects
Kelsen’s view that this is an essential presupposition of all legal systems. All that it means , where a
system lacks a basic norm, is that there will then be no way of demonstrating the validity of individual
rules by reference to some ultimate rule of the system. Hart poinst out that this is not so much a
necessity as a luxury found in advanced social system .
In simple forms of society we may have to wait and see whether a rule gets accepted as a rule or not.
This does not mean that there is some mystery as to why rules in such a society are binding, which a
basic rule, if only we could find it, would resolve. The rule in a simple society , like the rule of recognition
found in a more advanced system, are binding if they are accepted and function as such.
Thus Hart argues, there is no reason why we should insist that international law must have a basic norm.
Such an assertion depends upon a false analogy with municipal law. International law, by contrast, may
consist of a set of separate primary rules of obligation which are not united in this particular way.
Indeed, the insistence upon the need for a basic norm, within the context of such a system as modern
international law, often leads to a rather empty repetition of the fact that society does observe certain
standards as obligatory . Thus Hart refers to the rather empty rhetorical form of the so-called basic norm
of intentional law to the effect that “States should behave as they have customarily behaved”. As for
the rule regarding the binding force of treaties , this is merely one of the “set” of rules accepted as
binding. Of course, if the rule was generally accepted that treaties might bind not merely the parties
thereto but other states, then treaties would have a legislative operation and the established form of
treaty –making might have to be recognized as in itself one of the criteria of validity. But international
law has not yet reached this stage.
REALISM
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There are two variants of realism: American and Scandinavian. They both are realist in the sense of
trying to look at law stripped of mystique and metaphysics, to see how law actually works in a society or
in practice. However their answers are different as American realism was a reaction to formalism.
Formalism is based on a priori reasoning while American realism is pragmatic. The Scandinavians
concentrated on the verification of concepts like ‘right’ and ‘duty’ in a psychological way while the
Americans sought to show that legal decisions were not predictable if one merely looked at the logical
application of rules. the prohphesies of what the courts will do in fact what he means by the law. They
are not concerned with the question , ‘what do the rules of law have to say about this problem?’ but
rather , ‘what happens in life –the court rooms , law offices and prosecutors’ conferences?’
In this school of jurisprudential thinking certain names stand out , in particular are those of Oliver
Wendell Holmes Jnr (1841-1935), Jerome Frank (1889-1957), John Chipman Gray (1839-1915) and Karl
Llewellyn (1893-1962). Oliver Wendell Holmes Jnr an Americana Jurist is the forefront of realism.
Realism is useful for judicial definition of law. To them, the judiciary is the best person to define law. It
was a remark by Oliver Wendell Holmes that set the ball rolling. ‘Take the fundamental question, What
constitutes the law ? You will find some text writers telling you that it is …a system of reason, that it is a
deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with
the decisions. But if we take the view of our friend the bad man we shall find that he does not care two
straws for the axioms or deductions , but that he does want to know what the Massachusetts or English
courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact,
and nothing more pretentious , are what I mean by the law.’
For the Realists, all law are judgemade law. Statutes are not laws by virtue of their enactment. They only
become law when applied by a decision of the courts. Only then does a legislative enactment spring to
life and acquire actual force. Legislation is therefore no more than a source of law: it is the courts that
put life into the dead words of the statutes’. 17
So to them, nothing pretentious is what will be considered law than the prophesises of the courts.
Because of that common position, they have decided that when a judge is considering legal questions,
legal factors don’t matter. The legal factors as have been stated supra include –legislations ( Acts,
Constitutions, L.Is, E.Is, C.Is).
The reason for the focus on the judiciary is that they are transitory in nature ( in that they are about
becoming law)
Holmes states that the factors that matter are the morality of the judge, the politics of the judge and the
prejudices of the judge.
The morality of the Judge : For the realists, you have to investigate the moral background of the judge
The politics : Eg. Taking the U.S. instance where the judge may be a democrat or Republican so you
should know how to address them
Prejudices :Associations, relations with others or groups
17
J C Gray The Nature and Sources of Law (2nd edn) p 125
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Disadvantates:The notion that legislation wasn’t important cannot be true. Another has to deal with the
separation of powers argument: It is parliament that makes the lawn and not the judges. The judge’s
role is to interpret the law (See Montesqui & John Locke)
The US is much concerned with the realist concept unlike typical common law judges. Whether the
realist concept is applicable in our jurisdiction.
American Realism: American realism are concerned to show and justify skepticism about traditional
explanations of the judicial process in terms of judges making decisions by following rules laid down by
the legal system. In his article, ‘law and morality in the perspective of legal realism’, Harry W Jones
describes the activities of American realists as sharing a natural conviction that the processes of law
administration involve operations far more complex than the search for and logical application of coreexisting doctrines.
John Chipman Gray (1839-1915)
Gray’s thinking was influenced by Austin although he rejected Austin’s definition of ‘law’. He believed
that eth law is the whole system of rules applied in the courts. The statute exists for the protection and
forwarding of human interests, mainly through the medium of rights and duties. However, not every
member of the society knows perfectly well about his own rights and duties, else there would be no
need for the courts. To determine in actual life the rights and duties of the citizens, the courts look at
the facts and also lay down rules according to which they deduce legal consequences from facts. These
rules are the law because between the legislative and the judicial organ, the judicial organ has the final
say on what the law is. He supports his statement with a quote by bishop Hoadly , ‘whoever hath an
absolute authority to interpret any written or spoken laws, it is he who truly , the law – giver to all
intents and purposes, and not the persons who first wrote or spoke them…’ in his book, ‘the natural and
sources of law’, he argued that the actual effects of law on people depend on the opinions,
preconceptions and ideas of particular judges, particularly with respect to how the law is interpreted,
for ‘it is the meaning declared by courts and with no other meaning that they are imposed on the
community as law’. He continued that the judgment of a corut has the force of law. It has the power of a
fixed legal binding order, more direct working , than the statutory , merely abstract statement of the
law.
The case against Gray is that he denies the facilitative function of certain statutes such as the companies
Act. One does not go to court in order to incorporate a company yet the procedure and requirements
for doing are prescribed in statute. To Cardozo, a critic of realism , he believes the logical conclusion
then is, ‘the law never is, but it is always about to be’.
Oliver Wendell Holmes, Jr. (1841-1955)
He was the associate justice of the Supreme Court of the United States. His book, ‘the common law’ was
a classic work of Anglo-American jurisprudence. his essay ‘the path of the law’ is probably the most
influential essay in American thought. His position is popularly called the bad man or prediction theory
of law. Thus, if one wanted to know what the laws of a society are , one must approach the question
from the perspective of the bad man.
The bad man does not care about morality, nevertheless, he, just like the good man wishes to avoid an
encounter with the law. When he asks his lawyer whether some contemplated action is legal, what he
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want to know is how pubic power is going to affect him. He does not deny that moral conceptions
influence the growth of the law. These are often hidden from sight by the logical form into which the
judges opinion is cast.
This leaves out the perspective of the judge. This is because the judge when confronted with such an
issue does not ask himself what he or other judges will predict. To respond that he predicts what the
higher courts will predict does not hold water as he himself can be a member of the highest court.
Holmes does not take up the question, ‘where do the courts derive their authority’. What is it that
constitutes the judges as jural agents and their decisions as jural acts? An answer to this is the
delegation of law of laws of competence. To interpret these as predictions of the judgments of the
courts seem to involve circularity.
Another problem of the Holme’s theory is that it is court –centered and does not seem to apply to legal
systems without courts. This led some realist to broaden the scope to law-enforcing or law-applying
officials. But what these officials enforce or apply are laws not predictions about each other’s judgment
or behavior. This is to be understood to mean laws are always ready-made and waiting to be enforced or
applied .
Kantorowitz also believes that a court-centered or even official –centered view also distorts the
perspective of the ordinary member of society in relation to laws. For example in a game of football the
rules are known and followed by the players. To say that the rules are generalized predictions of what
the umpire will say is absurd.
Karl Llewellyn (1893-1962)
He thought that the ruled were merely , ‘pretty play things’. He proposed two basic function of law.
The law aids the survival of the group
The law engages in the quest for justice , efficacy and a richer life. To assist the law in fulfilling these
functions the institution of law has a number of law-jobs. He list the law –jobs as follows
The disposition of trouble case
The preventative channeling of conduct and expectations so as to avoid trouble and not only looking at
the new legislation but at its purpose
The provision of private law activity by individuals and groups, such as the autonomy inherent in a law of
contract
The net organization of society as a whole so as to provide integration , direction and incentive.
Jerome Frank
Judge Jerome Frank was a distinguished exponent of realism. He insists that there are really two groups
of realists, “rule skeptics”, as he calls them, who regard legal uncertainty as residing principally in the
“paper” rules of law and who seek to discover uniformities in actual judicial behavior and “factskeptics”, who think that the unpredictability of court decisions resides primarily in the elusiveness of
facts. The former , he suggests, make the mistake of concentrating on appellate courts.
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Frank believed that the certainty of prediction could only be achieved in the appellate courts. In the
lower courts, the uncertainty of the fact-finding process is the reasons why decisions are unpredictable.
This unpredictability is a result of the values, etc of the judges together with the uncertainties of juries
and witnesses. Much depend on the witness who may be mistaken as to their recollections. Also , judges
and juries bring along their own beliefs, prejudices and personal predilections into their decisions about
witnesses, parties, etc. these prejudices are difficult to predict.
Frank’s view is not without criticism. It is not all the case that all questions of fact are unpredicatable as
he describes. Within the bounds of the rules of evidence, a professional adviser can make a fair
prediction in most cases what facts the courts will accept as proved and what rules of law are to be
applied to them. And what of the cases which go to the judge on a basis of an agreed fact to see what
eth legal rule is ? An example of such a case is Donoghue v Stevenson.
CRITICISMS
A problem is the issue of separation of powers because for the realists, the judges make the laws and
not parliament. The legislature is thus rendered redundant. The meaning is that there will be only two
arm of government instead of three.
Is it true that in determining matters, this is what matters and not positive or posited law? Positive law is
inevitable so they cannot say that legal practice is not important
Their argument will lead to serious disaffection between the three arms of government
Harris, J. W. (1997) Legal Philosophies Lexis Nexis
“ Minimally, realists say that ‘rules’ are not all that matter in the administration of justice, and there has
probably never been a theorist who denied that. More positively, the movement has had some
influence in directing research towards non-rule-governed operations-towards studies of the personal
background of judges , the actual workings of the jury system , the practical importance of availability of
legal representation, and the consequences of formality in procedure. A realist approach would require
us to concentrate , not on the reasons judges give for their decisions, but on what they do. In an
extreme form, it would regard all legal reasoning as mere surface talk. I have come across practitioners
who in their cups, talk about judges in this way: “ you wouldn’t get very far with that argument before
judge X, given the way he feels about deserting husbands, etc.” If it is systematically true that, whenever
there is an arguable point, arguments based on the purpose of a rule, or Parliament’s intention , or
some legal principle , might as well not have been advanced because the judge’s prejudices alone
determine his decision, then perhaps law is, as F. Rodell argues, “a high-class racket”.
There remains the difficulty, which many critics of realism have pointed out, that if legal science is to be
transformed into a science of prediction, just what are judges supposed to do? Frank ahs said that
judges should be as conscientious as possible in introspecting about their motives. At least they should
be clear that justice in the case at bar is their goal, not some solution dictated by ‘justice according to
law’.
If the belief that rules matter, inside and outside courts, were to be totally discredited, it would not
merely confirm the cynicism that many share about the law; it would also lead to total pessimism about
het utility of law reform. Why bother change the rules? The only possible ‘law reform’ would be to
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substitute officials with desirable prejudices for those officials we have. Judges, old or new , would
automatically have complete discretion, but we might as well make this plain by giving it to the new
ones expressly-for rules to guide them would not guide them.
Another criticism commonly advanced against realists is that, without rules, how do we know who are
officials , for they are they not appointed according to rules? To this, it might be answered that we have
psychological triggers of various kinds which makes us view individuals acting in certain formal ways as
dispute –settling officials.
Llewellyn on Institutions and “Law-Jobs”-see Lloyd
The functional approach to law adopted by Llewellyn is well brought out by his treatment of law as an
institution. The institution of law ins our society is an extremely complex one, consisting not only of a
body of rules organized around concepts and permeated by a large number of principles. An institution
has jobs to do, and the important thing is to see that these jobs are well and effectively carried out.
Much of Llewellyn’s interest has been centered upon what he calls the ways in wchi in various types of
community, the “law –jobs” are actually carried out.
“Law-jobs” are Llewellyn’s way of describing the basic functions of the law, which , for him, are two-fold:
“to make group survival possible”, but additionally , to “quest” for justice, efficiency and a richer life. He
lists the law jobs as :
the disposition of law “trouble-cases”, which Llewellyn belived was common to all systems at whatever
stage of development;
“preventive channeling”-the reorientation of conduct and expectations to avoid trouble;
The provision of private law activity by individuals and groups , such as the autonomy inherent in a law
of contract; and
“the say”-the constitutional provision of procedures to resolve conflict, much in the manner of Hart’s
“rules of adjudication.”
According to Llewellyn, the first 3 jobs described “bare bones” law, but out of them may emerge, though
he gives no indication how, the additional “questing” phrase of the legal order. For him, the problem
was thus finding the best ways to handle “legal tools to law-job ends.”
Llewellyn sees these “law –jobs” as universal. What this overlooks are dimensions of structure and
power which are different in different societies. The quest for universality leads Llewellyn to concepts of
a high level of abstraction. He also leaves as with numerous questions unanswered. E.g. is a question
about the relationship between the different “law-jobs”.
THE COMMON LAW TRADITION
In Llewellyn’s book, the The Common Law Tradition, he develops the idea of a craft in considerable
detail, as applied to the juristic method. The aim of the book is to deal with what it describes as a “crisis
of confidence within the Bar”, concerning especially the question whether there is a reasonable degree
of “reckonability” in the work of US in the work of US appellate courts.
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Llewellyn argues that there is a large measure of predictability in case-law, and this he attributes to the
geneneral craft of decision-making in the common law tradition. In the common law, says Llewellyn, the
practice of the courts has fluctutated between two types of style which he names the Grand Style and
the Formal Style. The Grand Style is based essentially on an appeal to reason, and does not involve a
slavish following of precedent; regard is paid to the reputation of the judge deciding the earlier case and
principles is consulted in order to ensure that precedent is not a mere verbal tool, but a generalization
which yields patent sense as well as order. Under the so-called Formal Style , on the other hand, the
underlying notion is that the rules of law decide the cases; policy is for the legislature, not for the
courts, and therefore this approach is authoritarian formal and logical. The Grand Style is also
characterized by resort to , what Llewellyn calls , “situation sense”; the Formal Style, on the other hand,
is not so concerned with social facts. Further, the Grand Style is concerned with providing guidance for
the future far more than is the Formal Style.
Llewellyn argues that in recent times, the American appellate courts have been moving steadily back
towards the earlier type of Grand Style, and it is this tendency which has misled the legal profession into
thinking that there is a higher measure of unpredictability in their decisions than there was in the
previous more formal period. This Llewellyn attributes to a misconception as to the ways in which the
court uses precedent and the tremendous “leeways” which are afforded by the system of precedent,
whatever particular period style may be in operation.
There are two rather curious and unexpected features in Llewellyn’s last book which deserve some
comment. According to Llewellyn, it is a feature of the Grand Style , which he warmly approves , that the
courts proceeds to arrive at decisions in relation to what he calls “situation sense.” It is exceedingly
difficult to grasp exactly what the author has in mind by this concept. Under the Grand Style, Llewellyn
seems to be saying that insight and wisdom is developed whereby judges will achieve a kind of
reasonable criterion, though not one which can be specifically formulated, and so arrive at a wide
measure of arrangement as to what are the appropriate legal solutions both worthy of approval by the
community and likely, in fact, to be approved by the community. This may or may not be true in relation
to particular periods or particular legal systems, but it seems a very far cry from the scientific realism
movement. Moreover, Llewellyn does not seem to face up to the fact that in many communities,
certainly including his won, there may be vital issues involving conflicts of vlues between different
groups and interests in the community; how hten can there e any objective core of insight which can
produce decisions appropriate to reconcile all this welter of confusion? It may well be that a more
honest decision will be produced by a judge who approaches the question in the spirit of the Grand Style
rather than looking at the matter through the spectacles of formalism. All the same, Llewellyn seems
unduly optimistic when he claims that what he calls “the law of the singing reason” will tend to produce
a rule yieldin regularity, ‘reckonability” and justice all together. It is fair to add however that, Llewellyn
does not put his case higher than saying that the Grand Style is likely to produce a greater proportion of
such decisions than any other style.
The second rather curious feature in this book is that the author confines his evidence exclusively to the
material which appears from the actual decisions of appellate courts. He recognizes that these do not
disclose the whole truth of what he calls “the facts of life” , but he insists that these provide adequate
materials for revealing the techniques of the courts, especially if one employs his chose procedure, not
of examining cases according to their subject –matter , but in the order they happen to be reported in
the volumes of report relating to particular courts. But he insists we must learn to read these cases, not
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for what they decide, but for their “flavour.” He urges that we should not look to “what was held” but
rather to “what was bothering and helping the court.” Here, we now find Llewellyn is far form
renouncing any of his earlier enthusiasms.
It is a little disarming to find that what started as a rather revolutionary movement has ended up
fundamentally as an appeal for a common-sense approach to law.
Scientific and Normative Laws
Is it a valid criticism of the realists that they ignore the purely normative character of legal rules and
seek to replace these by scientific statements laying down uniformities of human conduct? This criticism
is more valid in relation to Frank and some of the earlier writings of Llewellyn, but there is no doubt that
later Realism as exemplified by mature Llewellyn took cognizance of the normative character of legal
rules. Legal rules are norms of conduct which are in themselves neither true nor false. Yet the realist
seems to be seeking to prove their truth or falsity in relation to the criteria of actual human behavior.
The realist does not deny the normative character of legal rules. What he says is that these norms do
not provide the complete answer to the actual behavior of courts, legal officials or those engaged in
legal transactions. Admittedly, the realist predilection, following Holmes, to treat rules of law as
predictions of what the court may do, seems to go counter to this. But this is because the realist is here
thinking of the viewpoint of the lawyer advising his client, rather than of het norm prescribed by the
judge or laid down for his guidance. If we are to understand the actual working of law in human society,
it is not enough to simply pursue a collection of the relevant legal norms for these tell us but little about
actual “legal behavior”, in the sense of how legal business is in fact transacted. A follower of Kelsen
might say that this is outside the field of true legal science. The kelsenite concentrates on his norms ,
the relaist on his facts of society, each regarding the other’s activity patronizingly as a peripheral study
on the fringe of his own central sphere. Yet, it may be suggested that both equally represent essential
aspects of the legal process is an overall picture is to be taken of law.
Achievements of the Realists-See Lloyd
Whereas the early realists employed the social science as an appendage, using them to no profound
effect, the modern inheritors of the realists tradition have become sophisticated in the techniques of
the political scientist and sociologists. Also, the realists do not reject technical legal analysis, but merely
emphasize that this is not in itself not enough, if we wish to understand how the law works, or how it
may best be developed or improved. And if so far little has been achieved in finding any far reaching
substitute for the habitual legal technique which has served lawyers for centuries, realists have played
their part in bringing about a changed outlook and attitude towards the legal system and the function of
the law and the legal profession in society , which has made itself felt in all but the most traditionalists
of the law schools of the common law world.
Where Stands Realism Today?
The broader movement of realm showed signs of having passed its peak by the early 1940s, though in
the sphere of jurisprudence its message not only continues but ushered in a distinctive movement which
is by no means yet extinguished. Lawyers however still search for some ethical basis for law, inspired by
the desire to arrive at some absolute scheme of values which can be held to support and enshrine their
own sense of what is right and wrong, just or unjust.
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In 1961, Professor Yntema, a leading realist , attempted to assess the present and future of the
movement. He conceded that a major defect of the movement had been neglect of the more humanistic
side of law, particularly revealed both in its neglect of the comparative and historical aspects of law, and
a tendency to place over –emphasis on current “local practice.” The result of this has been a certain loss
of perspective , and in particular, a failure to distinguish between what is trivial or ephemeral and on the
one hand, and what is of wider imort on the other. His suggestion for the future is not to abandon the
critical achievements of realism, but to develop these on more constructive lines. This, he states, would
involve a more humanistic conception of legal science, with due attention paid both to the systematic
analysis of legal theory and of historical and comparative research.
HISTORICAL SCHOOL OF JURISPRUDENCE
Natural law thinking had dominated legal philosophy especially in the eighteenth century. However, two
major movements arose in response to the natural law: Legal positivism and Historical or
Anthropological school.
The Historical School or the ‘Historical Approach’ did not agree with the theory of naturalism at the
time. The Historicists believed that the question of “what is law” can be better answered if we
understood the historical roots and development of the legal system of that particular society. It
emphasized on appreciating the feelings and customs of the people. Thus, some called it the ‘Romantic
Movement’ due to its emphasis on people’s feelings and customs.
The Historical School of jurisprudence is thus concerned with the view that for law to be valid in a
proper legal system, such a law must be consistent with the values, civilization, history , traditions ,
culture and customs of that legal system. Two main elements : National Spirit and Popular
Consciousness. They argue that any law which is inconsistent with the national spirt and popular
consciousness is not law. The national spirt or popular consciousness is made up of history, civilization,
custom, tradition and culture.
Again , the law making process involves the history plus the juristic skill. this means that when making
law, it must first mirror the history of the country. After the law reflects the history, it goes into the
juristic skill –this is the law making process. So if there is law in the juristic stage without first clearing
the history, then that law is not law. The juristic stage makes them look like positivists but they are not
necessarily positivist because of their national consciousness affair. They may be deemed positivists
however because to them , law does not transcend the state.
DISADVANTAGES
They may be criticized in respect of a state which has been conquered. For instance in 2000, when U.S.
conquered Iraq. Many of the laws passed in Image had an American face. Under such circumstances you
cannot suggest that there was no law in Iraq at that time.
Secondly, there could be an imposing culture. Which culture is it going to reflect? Is it the external or
local culture
The third is globalization. We are increasingly being influenced by others. In fact culture is dynamic
It is difficult for them to make a case for the essence of judicial input in law
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Advantage:
Many of the laws enacted are a reflection of history. The human rights provisions show how we have
been denied human rights by our colonial masters. Remember the purposive approach to interpretation
adopted now. –consider section 69A of Act 29 which criminalizes female genital mutilation ; Infact it is
not for nothing that customary law has been recognized as part of the sourcs of laws in Ghana under
Article 11(3) of the 1992 Constitution ‘the rules of law which by custom are applicable to particular
communities in Ghana’
Herder : This new school was most prominent in Germany where many of the school’s leading figures
emerged from. One of the most influential founders was Herder. Herder rejected the universalizing
tendencies of the French philosophs (the famous French philosophers at the time such as Voltaire,
Montesquieu, Rousseau and Diderot) and rather stressed the unique character of every historical
period, civilization and nation
According to Herder, every nation possessed its own individual character and unique qualities and no
nation was superior to others. Consequently , any attempt to unite these different national qualities and
character through the use of a general command of a universal natural law based on reason will be
problematic. It will limit the free development of each national spirit (the Volksgeist). It will also impose
a crippling uniformity on the spirit of the nation.-though he makes sense cant u counter it with the
argument that in the same vein within each particular community in the nation, there are distinct
cultures which are practiced and so an attempt to merge all these cultures to bring out the law may
reflect a particular society to the neglect of another.
Herder believed that rather than history and law of their time to be concerned with the exploits of kings,
generals, states men and great men so called it should instead focus on the life of communities. He
argued that different cultures and societies developed their own values rooted in their own history ,
tradition and institutions , and the quality of their life is expressed in their daily values so each society
must be allowed to freely develop on their own without imposing rules and commands over them.
Herder was not a fan of the bureaucratic state. He believed it “robbed men of themselves” and
substituted human life and feelings with ‘machines’.
Hegel: Hegel, another German who was a disciple of Herder, was a historicist alright but he took it from
a different angle. He argued that the individual is of no value by himself. The state is the highest form of
ethical life. The state transcends but also incorporates , the interests of its individual members and of
intermediate social forms, such as family and civil society. According to Hegel , the individual finds
fulfillment in playing a proper role in that state. He believed that the state overrides individual interest.
He argued that when there was a conflict between the state’s interest and individual interest, the
solution lied in the state giving a conscious direction. He did not endorse autocratic rule in a state but he
saw the state as the vehicle to be used in securing national freedom. To show he did not endorse
authoritarianism, Hegel was a strong critic of the Prussian State (the powerful German state in the early
19th century) which was in power , for not giving room for the opinions of individuals and groups in the
state.
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According to Lloyds, “introduction to Jurisprudence”, 8th edition, ideally every developed nation was an
absolute end –in-itself, enjoying total sovereignty and autonomy from its neighbors. As such an
unfortunate development arose basing on his theories which Hegel did not anticipate, emerged,
according to Lloyds. A chauvinistic nationalism in the 19th century ignored Hegel’s stress on freedom as
the essence of the state, it rather distorted his philosophy and glorified authoritarian rule as superior to
the interests and spirit of individuals in the state. This distortion believed in the state using war as a
means of national achievement. Hegel’s emphasis on the sate later became the foundation and
inspiration upon which another German , karl Marx built his theory of Communism.
Von Savigny : He believed there was an organic connection between law, people’s custom and spirit as
developed through history. To him, the true “living law” is customary law, which is not given by a king’s
arbitrary rule, but from the “internal , silently-operating forces” within the community. Savigny saw
legislation as secondary in importance to custom. (this will be doubted in Ghana by the combined effectd
of Article 1(2) and 11 of the 1992 Constitution) He developed three stages: The first stage of law is
custom , originating from the values of the people; second stage is the addition of juristic skills which
codify the expression of the volksgeist ( a unique, ultimate and often mystical reality) and then a stage
where a nation is in decline so law loses its relevance and ultimately a loss of national character. “Law
grows within the growth, strengthens with the strength of the people, and finally does away as the
nation loses its nationality”, Von Savigny argued.
Henry Maine : English Jurist and legal historian, Henry Maine also did not agree with the rationalizing
theories of the naturalists which were prominent in his time. He was influenced by the work of Von
Savigny.
Maine’s however , was without the ‘mystery’ associated with the leading figures of the German
Historical School. His work on seeking to find out what law is led him to study history and document
hitherto unknown cultures of his time. He studied and wrote at a time that man’s knowledge of early
society was scanty. He opposed the existing theories of the “law of nature” and he did not see legal
systems as appropriately reflecting man’s rational nature. He was more concerned with man’s deep
instincts, emotions and habits. He studied the early law of Greece, Rome, the Old Testament and the
native law of India.
He particularly saw India as “the great repository of ancient juridical thought” and Henry Maine was able
to make theories about unexplored territories like India to contribute to the idea that the law of a
people should be reflective of their custom and values. HE researched into ancient history and
unexplored cultures and used it to make general assumptions at the time. As such his ideas were
backed by empirical data he hadgathered from the cultures he had studies, a marked difference from
the figures of the German Historical School. Whereas the German Historical School theorized, Maine
introduced scientific evidence-based ideas into the law at the time. Maine’s theory was called the
‘organic theory’. He came up with three stages in the early development of law in any society. First, law
is confined to the personal commands of rulers thought to be divinely inspired. In the second stage, the
command crystalizes into custom. The customary law is explained to society by a few privileged people
like the Roman Pontiffs and India Brahmins. The third stage is when the majority revolts against the
ruling minority and consequent publication of a code. AT this stage the law ceases to develop as codes
are instituted and venerated. Mine explains that beyond this stage, static societies do not progress
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while progressive societies go on to develop further laws which will then be unified in a consistent and
scientific fashion.
Maine’s work has influenced legal anthropology up till today. But according to Pospisil, Henry Maine’s
contribution to jurisprudence is not in “the empirical, systematic, and historical methods he employed
to arrive at his conclusions, and in his striving for generalizations firmly based on the empirical evidence
at his disposal…he blazed a scientific trail into the field of law, a field hitherto dominated by
philosophizing and speculative thought”.
The works of Henry Maine and German Historical School’s leading figures, despite employing different
methods, have left many legacies for jurisprudence. For example, HLA Hart developed his idea of a legal
system from a primitive society while Hans Kelsen’s norm –chains go back to the very first constitution.
While the German historical School’s leading figures theorized about valuing the role of the individual in
a legal system in a state rather than been subject to commands from the sovereign , Henry Maine
studied ancient customs and brought empirical and scientific data to justify the role of history of a
people in guiding the formulation of law in a society.