JURISPRUDENCE LAW NOTES (UPDATED)

 

JURISPRUDENCE

MEANING AND VALUE OF JURISPRUDENCE

It is all about the science or theory of law.

It interrogates the nature and character of law as phenomenon as opposed to an English word.It attempts to give us the meaning of law as opposed to the Lexical definition of the word law.

It helps one to see the thread that runs through all the subjects of law.

Holland in his book: “The Elements of Jurisprudence” views it as “the subject which sets forth and explains those comparatively few and simple ideas which underlie the infinite variety of legal rules. It is the science which reduces the legal phenomena to order and coherence”.

It has been argued that jurisprudence sets the common denominator to all the law subjects.

One of the common elements in the law subjects in their entirety is the law itself.

HISTORICAL DEVELOPMENTS OF JURISPRUDENCE

The origin is the Roman times when it was called Jurisprudensia which meant knowledge of the law.During that time, a jurisconsult was the equivalent of the present day lawyer.

According toScessero, a jurisconsult had to have certain characters: 

a.               First, he must be skilled in the law;

b.               Must be skilled in the usages current in private citizens;

c.               Must be skilled ingiving opinions; and

d.               Must be skilled in bringing actions (cases) and guiding his clients on their rights.

The reason why it is described as knowledge of law is that one could not study the law before studying lots of other subjects e.g. mathematics, philosophy, literature, economics, science, etc. This is the origin of the term of “learned friend” as used in the legal profession.

Scessero argued that the study of law must be derived from the depths of philosophy and that by the examination of the human mind and society principles might be discovered in comparison with which the rules of positive law are but of trivial importance.

Law and philosophy are interlinked. Law must be studied in light of what actually happens in society as well as in the human mind. Law does not exist in a vacuum.

According to Ulpian, jurisprudence is the knowledge of things: human and divine, the science of just and unjust.The reasoning by Ulpian brings into question the content of law: Is there a relationship between law and justice? Is unjust law, law?

Jurisprudence has also been used to describe particular branches of law, e.g.equity jurisprudence, constitutional jurisprudence, etc.In Europe, it is used to describe the corpus(body) of knowledge that has a legal flavor, e.g. medical jurisprudence.

In the formative period of the common law, jurisprudence was described as the study of a skill in law.

Jurisprudence began to acquire specialist definition in the early 19^thCentury when Jeremy Bentham and John Austin gave it specialist meaning.According to Adam Smith, it is the theory of the rules by which civil governments ought to be directed.

It attempts to show the foundations of different forms of government in different countries and show how far they are founded in reasons.

In his book: “Of Laws in General”, Jeremy Bentham talks about expository and sensorial jurisprudence.By expository jurisprudence, it is meant what the law is while by sensorial jurisprudence is meant what the law ought to be.

According to John Austin: “The Province Of Jurisprudence Determined” the appropriate subject of jurisprudence is positive law. By positive law is meant the law properly or emphatically so called.

He further argued that positive law is the law established/positum in an independent political community by express or tacit authority of its sovereign or supreme government.

Austin divided jurisprudence into general and particular jurisprudence.

By general he meant the science concerned by the exposition of the principles, notions and distinctions which are common to systems of law. By systems of law, he understood them to mean the ampler and mature systems which by reason of their amplitude and maturity are full of authority. According to him therefore, customary law could not fit into the study of jurisprudence. The reason being, there was no commander who commanded customary law.

He defined particular jurisprudence as the science of any system of law or any part of any system of law.

Salmond in his book: “Salmond on Jurisprudence” says of jurisprudence as follows: “It is the name given to a certain type of investigation in law, an investigation of abstract general and theoretical nature which seeks to lay bear the essential principles of law and of legal systems.”

Jurisprudence differs from other legal subjects such as torts, contracts, etc. since this subject consist of a set of rules and principles which are derived from authoritative sources and are applied to factual situations to settle practical problems.

               In jurisprudence, concern is not to derive rules from authority but rather the concern is the nature of the rulesthemselves i.e. the underlying meaning of legal concepts. Jurisprudence does not discover new rules, it reflects on the new rules.

According to Lloyd, jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems, about the relationship of laws to justice and morality and about the social nature of law.

A proper discussion to questions such as this involves the understanding and use of philosophical and psychological theories and their application to law.

A study of jurisprudence should help the student to question these assumptions.

IMPORTANCE OF JURISPRUDENCE

a.    It is not possible to undertake any proper legal reform without understanding jurisprudence.

b.    It helps us to elucidate and organize concepts such as possession right, duty, liability, unjust enrichment, etc.

c.    It helps us to combat the lawyers’ formalism i.e. by understanding jurisprudence; we get to understand more than the nuts and bolts in law.

d.    It reveals the historical development of legal thought.

e.    Another standing of jurisprudence reveals the ideological leaning of the practitioner or the judge.

f.     It gives one capacity for critical thought. Enables one to turn the law upside-down and engage in critical analysis.

g.    It opens up the inter-disciplinary study of law i.e. the relationship between law and other disciplines.

h.    It is practically used in unique situations when we run out of the law for instance in situations of constitutional breakdown.

LESSON TWO

LAW AND OTHER NORMS

          The substantial bulk of social behavior is influenced by norms other than law. They include:

a.               Religious norms.

The source of them is supernatural power.

The consequence of breach of these norms results into eternal damnation.

Unlike legal norms, religious norms are voluntary.

2. Cultural norms (customs)

Every society sets out certain matters/rules which it believes if followed the life would be good.Normally, these are rules which have survived the test of time.

Customs also include traditions and usages.

There are certain customs that evolve which disadvantage many people in society. Many of our society’s women are disadvantaged by societal rules.

3. Morality

Refers to a society’s conception of right and wrong.

The enduring question in legal philosophy has been whether law should enforce morals or whether morality should enforce itself.

4. Ethics

Are like applied morality.

Sometimes they may be fortified by a professional code of conduct.

5. Etiquette

Is a group’s way of doing things.

6. Club and association rules.

g.                Rules of owner.

Are personal rules. Some people bind themselves to do certain things in a particular way. For instance, there are people who bind themselves to a lot of hard work, discipline, etc.

8. Institutional rules.

i.                Rules of Nature.

Norms are also called standards of precepts or rules.

Societies, communities, groups or individuals may also have visions. As one interacts with others, if he has vision, one develops values and from values, one may develop principles, policies and norms.

LEGAL ENFORCEMENT OF MORALITY

In our criminal jurisdiction, there are many offences which border on morality. There are also many areas which are targeted by criminal law.

         The following questions emerge for consideration:

a.               Should bestiality be a criminal offence or should it be left in the realm of morality?

b.               Should there be a special provision in the law targeting wife chastisement or should it be left to common assault provision?

c.                Should women to women marriages be outlawed instead of being relegated to customs?

d.                Should FGM be criminalized or should it be left as a subject of morality?

e.                Should polygamy be criminalized?

f.                Should mercy killing (euthanasia) be criminalized?

g.                Should marital rape be criminalized?

h.                Should wife inheritance be criminalized?

Third lesson

THE WOLFENDON REPORT AND THE DEVLIN & HART DEBATE ON THE USE OF CRIMINAL LAW TO ENFORCE MORALS.

In the UK, the relationship between law and morality was ignited in 1957 following the Welfendon Committee Report on sexual offences and prostitution.Due to the prevalence of homosexuality, it was thought necessary to set up a committee to see whether criminal law should target acts of homosexuality.

The committee observed that there were two types of morality in its findings:

a.               Public morality; and 

b.               Private morality

It concluded that in areas of private morality the law had no business. 

It was highly influenced by the 19^th Century writings of Professor John Stewart Mills and particularly the text essay on Liberty published in 1859.

According to Prof. Mills, individual liberty is key to people’s lives. The law should never be used to uphold a particular type of morality.

He argued that the law should be used to prevent harm to the citizens hence the harm principle.

He argued that the only purpose for which power can be rightfully used against any member of a civilized society/community against his will is to prevent harm to others. His own good whether physically or morally is not a sufficient warrant.

To use law to prevent harm according to him, that harm must be direct and physical. People need freedom and so long as they are doing whatever they do in private away from the public, they should be left alone.

He argues that minors should be protected because they are likely to be lured by adults whose aim is to take advantage.

Guided by this thinking, the committee said, unless the society is prepared to equate crime with sin, there must be a realm between private and public morality which is not the laws business.

The committee recommended that prostitution per se should not be punishable. However, it recommended that activities that surround prostitution such as soliciting, pimping, running a brothel should be punishable because they cause direct harm to those who are not seeking the services of commercial sex workers.

In respect of homosexual acts, so long as it is between adults doing it in private and both parties consent, they cause no harm to non-participants and they should not be outraged.One should only be punished for those things which are exploitative or corrupting those not involved.

In 1959, following this committee, Lord Devlin in his book: “The Enforcement of Morals” argued that society has the right to punish any act which in the opinion of the right minded man is grossly offensive and immoral and that the society should only tolerate that which a reasonable man will tolerate and that where conduct is so immoral that the reasonable man will feel disgusted, the reasonable man should ban that activity.

He argues that society has a shared morality for the reason that morality defines a society. This shared morality provides a common bond that holds the society together.If you relax this shared morality, he argues, then the society will drift apart. This argument has culminated to the disintegration (fall apart) theory. He takes the view that a society is a seamless wave.

According to Devlin, when society protects its shared morality, that is an act of self defense.

One of the problems imposed by this argument is how to identify the content of this shared `morality. People are not known to have a homogeneousmorality.

Devlin does not think that there is any such thing as private vice. He argues that a private vice weakens the individual, making the individual less productive and hence less likely to contribute to the society’s productiveness.

              He argues that society has the right to protect its own existence and that the majority has the right to follow their own moral conviction in defending the social environment from change which the majority opposes.

According to him, the only moral principles which the law should not enforce are religious moral principles and that all other moral principles must be legally enforceable.

Professor HLA Hart authored a book: “Law, Liberty and Morality”. He argues that there is no wide shared morality. He says that there can be no such thing as freedom if we do only that which others approve of.He argues that there is no evidence that some shared morality is essential to the existence of society. To the contrary, he argues, that society by its nature is pluralistic hence it’s a mixture of tolerated moralities rather than one shared morality.

He argues that the majority may be wrong.For instance, according to the Hindus, it is morally wrong to kill cows, but in other places in the world, cows are a source of beef. In Saudi Arabia, one can be imprisoned for taking alcohol.

Hart argues that morality is not a seamless wave. In any event, he thinks that there is no evidence that use of criminal law preserves public decency. In Kenya for instance, the criminal law prohibits bigamy but the same is not adhered to.

He argued that the only time the law may be used to enforce morality is to prevent people from harming themselves. What is material is the harm the act causes the doer and not the moral soundness. He therefore justifies paternalism i.e. supervisory power to prevent people from harming themselves.

He uses the argument of paternalism to justify the protection of children from homosexual acts.

In his response to Hart, Devlin asked, “If  law is prepared to use paternalistic reasons in morality as it affects minors then why not use the law for purposes of securing the morals of the entire society?”

Professor Dias analyzed the arguments of all the players and reasoned that what is practical is to come up with a legal position relating to intervention that is realistic.

Dias tried to develop some consensus in the argument of Hart and Devlin. According to him, the following factors must be considered whenever it is sought to use the law in the realm of morality:

a.               The law should be let to intervene where whatever the activity is, it causes danger to others;

b.                The law must also consider the danger to the actor himself/herself;

c.                It must be considered the economy of the forces needed for pursuit and detention;

d.                Whatever the law, it must consider equality of treatment;

e.                The nature of the sanction. Some people cannot stop doing what they do. It must be in their biological or psychological make-up.

f.                It must be considered what possible hardship might be caused by the sanction;

g.               The possible side-effect must also be considered. You might proscribe something, but instead of driving it out of the society, you drive them underground e.g. abortion.

Either way, in analyzing the role of the law in enforcement of morals, a decision has to be made between what is a caring society and what is an interfering society.

MUST LAW HAVE A MORAL CONTENT FOR IT TO BE LAW: IS IMMORAL LAW, LAW?

The debate on whether immoral law is law arose out of events in two states:

a.               The Nazi Germany;

b.               The Apartheid South Africa. 

A number of jurists took the view that the phenomena that what was identified as law in those two states did not qualify to be law.The most outstanding scholar in the debate was Professor Lon Fuller. He has authored a book known as “The Morality of Law”

According to him, in order for proposals that are legislated to be law, there are various necessities relating to promulgation and application. If these procedural necessities are not fulfilled, then the proposal is not law.

He criticized traditional positivists who argued that so long as the sovereign authority promulgates law, then that is law and its moral efficacy needs not be questioned.  He thinks that positivists see law as a one way direction on activity in which laws are imposed on the subjects of the law.

He thought that positivists get it wrong when they focus much on where the law comes from rather than where it is and what it does. He argued that positivists miss a central aspect of the phenomenon of the law because law cannot be well understood without reference to its specific purpose and therefore he maintains that the general purpose of law is seen where one considers law as an enterprise subjecting human conduct to the guidance of rules.

Further, law cannot be understood if it is not appreciated that it is an enterprise of interaction where the legislators and citizens are core creators of law and through law they have reciprocal relations. The law should mirror these expectations.

To make his point, he uses the example of an inept king whom he calls “Rex”. In attempting to make law, Rex fails in eight ways:

a.               By failing to make law at all. This way citizens are held accountable for non existence rules as was the case in Nazi Germany.

b.               By failing to publicize the rules he makes or to make them available to affected parties;

c.               By legislating retrospectively;

d.               By failing to make laws that can be understood;

e.               By passing contradictory laws

f.               By passing laws requiring conduct that is beyond the capacities of the affected parties;

g.               By frequently changing the law; and

h.               By not ensuring congruence between the rules and official conduct.

As far as Fuller was concerned, if any of these failures occur in a legal system, then the legal system is less successful of achieving its purpose of guiding human behavior.

He suggested that if Rex fails in one of these respects, the likelihood of making another mistake so that the mistakes are cumulative is quite high leading to a weak legal system.

He argued that for each of these failures of Rex, there is an excellencies by which he meant a remedy for failure. The eight excellencies for the eight failures are:

a.               Generality of laws: to make laws so comprehensive in framework that it is difficult to find an area not catered for. 

b.               Ensure promulgation of laws;

c.                Make prospective laws;

d.               Ensure clarity of laws;

e.               Ensure lack of contradiction;

f.               Ensure no impossibility of compliance;

g.               Ensure consistency through time; and

h.               Ensure congruence between official action and the declared rules.

He called these eight excellencies the inner morality of law.

According to him, it is not possible for a system that is faithful to these remedies to pass laws that are synonyms to the two named states, i.e. South Africa and Nazi Germany. 

One thing can be immediately erased from his position: is the inner morality of law the same as outer or substantive morality?Suppose we pass a law that has all the eight excellencies, but is substantially immoral, is that law? 

He argued that there are two types of morality:

a.               Morality of aspiration; and

b.               Morality of duty.

He argued that the inner morality of law is one of aspiration. A morality of duty is one where failure constitutes wrong doing, e.g. moral imperative not to murder. Morality of aspiration does not involve wrong doing if not fulfilled.

Fuller has been criticized in the sense that he is not very clear on the question, “When does a legal system exist?” ‘Cana legal system exist without fulfilling the eight excellencies?’ Can a legal system half exist?’

According to Joseph Raz, he argues that when you look at Hart’s eight excellencies, they are good principles for promoting the rule of law but they have nothing to deal with morality.

Razargues that the eight are merely good for craftsmanship. He in fact thinks that there is one principle Fuller left out, namely the 9^th principle of the independence of the judiciary.

Fourth Lesson

HOW DO WE KNOW THAT WE KNOW?

This is the fundamental question in philosophy.  

Whenever you have knowledge, you want to verify the same. You want to ensure that the knowledge is reliable.

If one says that women are naturally weaker than men and that that is why African culture provides for their varied protection, is that true? Is it necessarily true that men are stronger than women?  And that men can do more than women?

Suppose that one says you are poor because you have been bewitched, is that true? Is there evidence that there is witchcraft?Yet such knowledge can be extremely powerful to the extent that some people will deliberately fail to advance themselves for fear of being bewitched.

If one says that God exists, is that valid knowledge? If one says that a mango tree has roots, why is that true?

If one says that you are poor because the world’s economic system exploits you, is that factual?

There are times when people derive knowledge from facts they cannot grasp or prove then there is knowledge from things that are verifiable in an easy way.

A number of questions pertaining to knowledge have emerged in the sphere of philosophy.Is thought merely one of the numerous products of the universe? Is the universe a product of thought?

As far as scientific evidence goes, life on earth has existed for a short time. The earth was there before then living organisms followed, including human beings. And the living organisms are a small part of the universe. Although the universe contains many life forms, only a small part of the universe contains the faculty of thought.

All bodies as well as the mechanical, physical, chemical and psychological processes they undergo, are usually described as material phenomena or matter.

Things like pride, shame, joy, and all other feelings supplied by the five senses as well as the thought steering in the mind are usually described as ideal or spiritual phenomena or consciousness.

The question philosophers have argued from antiquity is this: which derives from which? Does material derive from the spiritual or vice versa?

There are philosophers who regard nature as the product of consciousness or spirit which they hold to be independent of the material world of nature and this is the idealist camp.On the other hand, there are those who regard consciousness or spirit as the product of the material world or nature and this is the materialists’ camp.

If you ask a believer to comment on the materialist/idealist typology he/she will say that spirit is superior because theirs is a question of faith.

It is argued by idealists that there are three types of knowledge:

a.               Knowledge that we hear, see or feel by our touch and sensations;

b.               Knowledge that we conceive by reason of memory or imagination; and 

c.               Knowledge of ourselves i.e. awareness of self and of spirit.

It is argued by idealists that through these three ways of developing knowledge, whatever is material can be accessed through them. Everything that is material solelyexists through the person. This is known as subjective idealism.

On the other hand, objective idealism believes that thought is primary. The primary source of being is not man’s consciousness but consciousness without man which is some objective spirit independent of human consciousness.Through this, it is argued that let us not take what one person perceives as knowledge but rather what all people perceive as knowledge.

George Bettly, who lived in 1685-1753, in describing idealism said, “All those bodies which compose the mighty frame of the world have not any subsistence without a mind”.He says that outside consciousness there is nothing. To exist is to be perceived. What no one perceives does not exist. This position puts the mind at the center stage of developing understanding and appreciating what would be knowledge. 

Idealism must always be distinguished from illusion.

Materialists disagree with idealists. They say that apart from an independence of the mind, there are objects which produce sensory reactions in us and that sensible objects exists even when they are not perceived by the senses and by us.

For a long time, many people denied that the earth was spherical and believed that it was flat. When Galileo said that the earth was round, religious leaders disagreed with him. This serves to show that there are thing which exists outside the mind and whether or not people or the mind perceive them or not, they exist.

In the contemporary world if you do not create ideas, you will be subjugated. Knowledge is not neutral. People develop off focus on certain knowledge because they want to achieve certain aims in the society.

Fifth lesson

VARIOUS SCHOOLS OF THOUGHT:

a.               NATURAL LAW SCHOOL

Is the first school to define what law is right from the Greeks, Romans and throughout modern ages.

The basic premise of this school is that law must follow an ideal.

There is an attempt by its scholars to create a perfect/ an ideal law. It is this ideal law that all man-made law must follow.

According to them, if man made law does not follow, echo or accord, that ideal law, then it is null and void and is not considered as law.

In this school of thought, any proposed law is law to the extent that it mirrors the ideal law.

For the natural lawyers there are two norms, on the one hand is natural law which is immutable and changing, universal and supra-national i.e. it transcends national boundaries.On the other hand is positive law which is national, whether statutory, judicial interpretation or customary law. National law change from nation to nation.

Even within positive law there is a notion of superiority of some laws e.g. constitutional law is considered superior to other laws.

According to this school, positive law must accord to natural law otherwise it will not be law.

TYPES OF NATURAL LAW

a.               MINIMUMNATURAL LAW

It was popularized by professor HLA Hart.

According to him, if you examine societies you trace a need to perpetuate them so that there is increasingly more progress realized.The quality of society keeps improving. However, in such a situation, man exhibits fundamental characteristics which are potentially destructive to society.

He then says that in this context, there are certain rules which must be generated to strike at propensities that human beings have such as selfishness in order to ensure the continuity of society.

Rules like you don’t take lives of others, you don’t take people’s property, you don’t ridicule or abuse the dignity of others, you don’t physically assault others are some of the rules that are designed to ensure continuity of the society.

He is not concerned about the morality of these rules. He simply says that if you want basic society there are those minimum rules that must be adhered to, this is the minimum natural law. 

2. GENERALIZED RULES OF MANKIND

The ideal of this school has its origin/history in Greek societies.

        That if you examine all societies, you come across some core institutions. For example, you will find issues of contract in most societies, that is two or groups of people will agree on a certain thing and the agreement is binding on them hence they have to do as agreed.

This is the foundation of many things.In any society you find institution of compensation designed to make good wrongs done to others especially civil wrongs.All societies have the institution of restitution.

 In all, it can then be said that there are such generalized rules present in all societies which positive law must accord to.

3. PROGRESSIVE NATURAL LAW

The genesis of this is an attempt to vary the traditional natural law doctrine.

One of its proponents is Roscoe Pound. According to him, there are many laws which may be passed which may not be perfect. But if you simply annul these laws, there is going to be anarchy.

He argues that human beings through law desire to achieve higher levels of civilization. Therefore, even if at a given time we may have unjust law, he argues that this can be overcome by refining it with time till it becomes just law.

Judges as well as legislators can use these postulates to keep on refining and reviewing the law so as to result into more social justice.

4. MINIMUM RIGHTS NATURAL LAW

There are minimum agreements for the protection of citizens in a given society.

Society may come up with minimum rights which partly define an individual and must be adhered to. Most of them derive from civil and political rights (first generation rights).

Whatever is done therefore reflect the minimum rights of an individual.

5. INTERNAL/FORMAL NATURAL LAW

Is associated with Professor Lon Fuller.As far as he is concerned, we must focus on the validity of specific laws.

Without some level of formal justice and organization, the edicts of power will not hang together. It will not for a system.

Therefore, a system implies order and order implies some level of justice.

6. AUTHORITY NATURAL LAW

 A person who is making law in this school is viewed as a delegate of a higher authority.If he steps outside the delegation, his actions are void for being ultra vires.

In natural law schools there are three principle sources of natural law:

a.               God or gods;

b.               Human reason; and

c.               The general will of the people.

7.  BASIC GOODS NATURAL LAW

Is associated with Professor G.M. Finnis. His work was entitled, “Natural Law and Moral Rights” published in 1980.

According to him, there are some things that are good in themselves. By virtue of being good in themselves, they are present in every human society.

These things are discernible to our intelligence when we experience man’s nature from the inside. They include knowledge, play, aesthetic experience i.e. reading works of enduring value, sociability/friendship, practical reasonableness and religion.

After describing these, he argues that we require a just and well organized society because in such a society we can maximize our potential and attain most of the basic needs. Each individual needs a well organized society and we have an obligation to work for the common good of our societies.

According to him, a legal system is one of the requirements for a well organized society. The rational for a legal system is that it enforces and amends the common code of behavior which is necessary for a common living.

Only in a legally and politically well ordered societies can basic goods be achieved.

HISTORICAL DEVELOPMENT OF NATURAL LAW

Natural law thinkers rate natural law as the yardstick for good law.

Natural law does not annul positive law; it only requires that positive law must accord to natural law.

The natural law was the first historically placed attempt to say what law is. Its origin is placed in the Greek irra between 750 and 500 BC. During this period there were few ideas on natural law.

It is traceable in the works of poets such as Homer and Hesoid. These poets in their writings talked about the gods and their laws which govern the social destiny of man. They equal the law of nature and the law of gods.

Between 1200 and 750 BC, society was based on religion. Law was a form of social organization and it issued from the gods.

There was a multiplicity of the gods. Each tribe had its own god and some tribes had more than one god. Each tribe had a chief who acted as the agent of god. The chief was the administrator, high priest and law giver.

The laws were characterized as coming directly from god and were therefore incapable of error. This serves to explain why some states are still theocracy to date.

Within Greek antiquity, there was development until there was Zeus who was a God. This was when the notion of a superior God came to be. It developed with the development of city states.Zeus gave law to mankind as his greatest gift.  This law was manifested to people through an oracle. Priests went to the oracles and came out with laws.

Some scholars argue that this was a strategy by leaders to have their rules gain legitimacy. The idea that laws came from God or gods and that is why they had to be followed was an idea which made the laws which came from the priests’ natural law.

In one play by Sophones called Antigome, one man is killed by the order of the king on doing treasonable things. The king orders that he is not to be buried. The sister of the deceased says that she has to bury the brother as that was God’s law.

The king loved her so much, but says that if she disobeyed his order, she should be killed. She was obstinate that burying the brother was the superior law. She buried the brother secretly and was killed.

Herachitus popularized the idea of one God between 504-501 BC. He ascertained the forming city states to be the product of one. He argued that God is the universal reason, the universal law eminent in all things being content with the necessary process of the universe and not rebelling against it in a much as it is an expression of the whole comprehensive or ordinary reason of law.

Herachitus expressed the need for obedience and subservience to the existing system. His was a system of slavery. He argued that this system was a product of comprehensive reason.

Sixth lesson

SOPHISTS AS A GROUP OF THINKERS

The next groups of thinkers in Greek were the sophists; they were the most complicated people.They said that the slave culture was God ordained. They came to be known as the Greeks school of enlightment. They existed at a time when the Greek city states began to mushroom.

Although they argued that slave culture was God ordained, they were against the old system of slavery since only the aristocracy benefitted from the slavery i.e. only the king benefitted.

They argued that every slave owner must protect the system. Every free born citizen must participate in politics.

In Athens, slave aristocracy was overthrown and slave democracy established. The small and medium slave owners took over and during the celebration of democracy, it was held that it was a democracy of slave owners i.e. slaves themselves and women were excluded from that democracy.

Sophists were very revolutionary in their thinking. They argued that more people need to leave production. People here excluded slaves, women and children.They argued for equal opportunities of slave owners.

They believed in tradition and authority as part of natural law. They said that man must obey the tradition given to his society and that in the event that he refuses the society should get rid of him. Their argument was that every single law was a product of natural law.They wanted a law where the big, medium and small slave owners could participate.

In 431BC, Sparta declared war against Athens. Athens was defeated but it was not overrun and therefore slave democracy was not dealt a fatal blow.

Pericals speaking against Sparta, said, “Our government is not copied from those of our neighbors. We are an example to them rather than them to us. Our constitution is named a democracy because it is not in the hands of a few but of the many. Our laws secure equal justice for all in their disputes. Our public opinion welcomes and honors talent in every branch of achievement not for any section or reason but on grounds of excellence alone”.

Socrates was another sophist. Part of his problem was that even when Athens established slave democracy he still believed that that democracy did not benefit medium and small slave owners whom he thought were in danger of being enslaved themselves.In his thinking, he called for the co-operation of all slave owners to defeat the wealthy democracy which he argued was against divine and natural law.

He was arrested and brought to trial. Those who brought him to trial insisted that wealthy democracy was supported by divine and natural law.

He was condemned to die for the offence of corrupting the minds of the youth. Friends of his tried to help escape him from prison but he refused arguing that it was against natural law to escape from the verdict of elders. He accepted ‘hemlock’ which was a poison and died.

When Athens was defeated by Sparta, the big slave owners attributed the laws to the weak democracy practiced on Athens and began to call for a democracy like the Spartan one. The Spartan democracy was an oligarchy i.e. government of a few.

It was in this context that Plato, who was Socrate’sstudent, emerged. Socrates did not write on himself. It was Plato who reduced his dialogue into writing.

Plato was significant because he popularized the demands of big slave owners. He believed in the rule of the best/richest, which he argued was in consonance with natural law.

Plato argued that every man was created to perform a given role in the society. Inequality, he argued, was God ordained.

In his very influential treatise “The Republic” he said that Athens could be saved from evil only if philosopher kings governed. According to him, that group he called philosopher kings were most knowledgeable and would rule according to law. According to him, subsidiary people could only cause Athens defeat which was against natural law.

He classified men in three categories:

a.               Men of gold;

b.               Men of silver; and

c.               Men of copper and iron producing class.

Men of gold had absolute power to govern. Judges also belong to this category. Men of silver were the military guardians of the state. Men of copper and iron producing classes were the least suitable, but were above slaves, children and women. This ordering according to him was divine ordering and was not subject to question. It was in consonance with natural law.

Aristotle argued that man was a social animal. According to him there are rules required to govern his social behavior.Some of these rules would change from place to place and would be quite arbitrary. Other rules would be common to all mankind. Man is part of nature and a master of nature.

Man is endowed with active reason which distinguishes him from other parts of nature. Man is capable of forming a conscious will and through that, he is capable of arriving at absolute justice. This is part of natural law according to him.

STOICS AS A GROUP OF THINKERS

They sought to divorce natural law from divine source.

They secularized natural law. According to them, reason governs all parts of the universe. Man as part of nature is governed by reason. Therefore, man lives naturally if he lives according to his reason.

Man relies on his reason as well as divine reason. It is apparent that they are placing human reason on a very fundamental position yet they are saying that man relies on his reason and divine reason.

Man uses the God given gift of reason to develop the principles of morality and natural justice. These are universal unchanging and natural because they accord with what man will discover rationally by the application of his reason to the state of nature and the place of man in the universe.

ROMANS CONTRIBUTION

The Romans also contributed to the growth of natural law.Scessero, who was a Roman, summarized natural law as follows:

“True law is right reason in agreement with nature. It is of universal application, unchanging and everlasting. It summons to duty by its commands and averts from wrong doing by its prohibitions. It’s a sin to try and alter this law nor is it allowable to repeal any part of it and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people and we need not look outside ourselves for its expounds or interpreter of it. There will not be different laws at Rome and or Athens or different laws now and in the future but one eternal and unchangeable law will be valid for all nations and all times and one master and one ruler, that is God over us, for he is the author of this law, the promulgator and its enforcing judge”.

Scessero is very important in terms of positioning natural law as a higher law by which the validity of positive law is to be measured and it to his work where the foundation that unjust law is not law is to be found.

               According to Roman law, which was itself founded on Greek law, they had three categories of law:

a.               Jus naturalle;

b.               Jus gentium

c.               Jusciville

Jus naturalle refers to natural law or a higher law. Jusgentiumrefers to law applicable to all nations. Jus civillewas the law applicable to Romans. Both jus gentium and jus civille were to accord to natural law.

EVANGELICAL AND FEUDAL INTERPRETATIONS OF NATURAL LAW

Historically, after the collapse of the ancient Greek and Roman civilizations, there was the dark ages of between 400-1000AD. There after there was the emergence of the medieval order. Furthermore there was also the emergence of the church.

Saint Gregory, Saint Augustine and Saint Ambrose preserved the continuity of the idea of natural law.

Gregory, 354-430 AD asked, “What are states without justice but robber bands enlarged?”

The fathers of the church believed that only the fall of man from Christian love makes institutions necessary. They also believed that these institutions can never become perfect.

They believed that it was the task of the church to require the utmost approximation of human laws to eternal Christian principles.

Initially, the church was given absolute supremacy over the state because the state was bad. The state could only justify its existence by two things:

a.               By protecting peace and the church; and

b.               By striving to fulfill the demands of eternal law.

The most celebrated Catholic philosopher of this period was Saint Thomas Aquinas, 1225-1274 AD. He developed what is described as the Thomist System. According to him, there are four types of natural law:

a.               Eternal law;

b.               Divine law;

c.               Natural law; and

d.               Human law.

Eternal law is the plan of divine wisdom as to directing actions and emotions. Whatever exists is guided by eternal law and is possible because of eternal law. Only God knows the extent of this law.

Divine law is that part of eternal law that is revealed through the Christian church. Natural law is that part of divine law which reveals itself through reason. Human law is derived from the principles of eternal law revealed in natural law.

According to Aquinas, natural law is universal and codified. Natural law is partly divine and eternal but is not exhaustive of them.

Later, he argued that natural law needs not be perfect because it is growing. The only laws that are perfect are divine and eternal laws.He did not absolutely hold that natural law was the work of God but rather law which nature has taught all men and which could be modified by human reason.

Man, unlike the rest of creation is free, rational and capable of acting contrary to eternal law. For him, natural law is nothing else than a participation of eternal in a rational creature. Natural law consists of dictates revealed by reason reflecting on natural tendencies and needs.

For him, the primary concept of law is that good should be done and pursued and evil should be avoided. On this primary concept are founded all other precepts of the law of nature.

By reflecting on his own impulses and nature, man can decide what is good and be in a position to pursue it and man can avoid the ante-thesis of what is good.

The church thought that the state was a creation of God. St Thomas argued that human government derives from divine government and should imitate it.

             Saint Thomas who was a pre-renaissance apostle advocated for subservience to the state. His teachings reveal that natural law furnishes principles and not rules for literal application. 

Reason becomes the foundation for all human institutions. If human law departs from natural law, it is no longer law but a pervasion of law.

Lesson Seven.

In the 17^th Century, the Puritans in Europe were opposed to the very idea of a state. The argument was that every state was a negation of the laws of God.

In 1659, John Elliot said, “In the name of Jesus Christ, the king of England should abdicate the throne and leave the crown to Jesus Christ the sole law giver and the eternal judge”.

The rising middle class in Europe in the 17^th and 18^th Centuries influenced the state when natural law was at its most revolutionary.

          The rising Bujuazi who were not feudalists were completely unhappy with feudalism. Feudalism is organized such that people are free but they do not own land. They live on your land and give you labour.

The Bujuazimiddle class wanted the freedom of the people to start selling their labour so that labour is not confined. They did not like the feudal state. In the feudal state, decisions were made by a small clip of non-elected people who were simply born into leadership.

The Bujuazi middle class argued that these laws of the state were antiquated or outdated. They argued that there is natural law which is greater than the state.

The Petty Bujuazi perception of natural law is a critique of the feudal state. It is an embodiment of the society that they are looking for.

Thomas Hobbes defined natural law as the precepts or general rules found out by reason by which man is forbidden to do that which is destructive for his life or which takes away the means of preserving the same or to omit that by which he thinks it may be preserved.

He rejected the predestination which formed the basis of the feudal state. In the feudal state, serfs/poor were told that they were poor because God ordained them to be so. Every man was born with equal opportunity, according to Hobbes, and right to own things. He further argues that every man was born hostile, selfish and individualistic.He therefore argues that it is one of the precepts of national law that we should seek peace. This is captured in the Biblical saying, “Do unto others as you will…”

John Locke was a campaigner against absolutism. His writings expounded on the concepts of the social contracts.

Some thinkers before Locke had argued that in the social contract, men surrender their rights to the social contract.

Locke argued that the reality was that people surrendered only limited rights to the state to facilitate the state’s ability to take care of the common wealth. But the subjects’ rights are completely inalienable in terms of the precincts’ of contracteriantheory. He said that people have certain rights which cannot be taken away from them by the state. This he called the people’s residual rights.

The feudal state detested Locke’s ideology.

Montesquieu was a land owner and the president of the feudal parliament. He wrote his work called the “Spirit of the Laws”. He called upon the monarch to appreciate that the world was not governed by blind force but by human reason.

According to him, sometimes it is necessary to give so that you may keep. He preached reformism as well as accommodation which he saw as part and parcel of natural law.

The French feudalists did not heed his advice and at the close of the 18^th Century there was a major revolution of the world called the French Revolution.

Jin Jack Rosseu played a significant role in the rising Bujuazi thinking. He disagreed with the doctrine of natural rights of the strongest. He observes that, “Force is physical power. I do not see how its effects could produce morality”.

According to him, to yield to force is an act of necessity and not an act of will. It is at best an act of prudence. In what sense can it be moral duty? He asked.

In book two of the social contract, he argues that sovereignty derives from the people’s will, according to him; sovereignty is a quality that issues from the people. It remains with the people and it cannot be delegated. It is inalienable. For him, natural law is predicated on the will of the people.

Generally, the rising Bujuazi used natural law to show that feudal state was very inefficient.

Following the Bujuazi revolution and the rise of capitalism, natural law was vanquished. This was because when capitalists rose to power, the capitalists’ philosophers could not advocate that there was a higher law than the law of the capitalist state.

FASCISM

Later there was fascism which was considered as an aberration of capitalism. It brought about new moral questions.

Following these questions by these regimes, natural law was revived by people like Gustav Radbruch in Germany who argued that whichever laws were passed by people like Hitler and Mussolini were not law.

CONCLUSION:

Natural law is a school in jurisprudence that spans across a very long period in human history from antiquity. It is a confusing school. It is like a harlot because it is available to everybody.

There are various ways in which natural law precepts are used in modern law:

a.               In the law of torts, there is the concept of the reasonable man and the prudent man;

b.               The issue of unjust enrichment or restitution where if you get what you are not entitled to legally you are supposed to return;

c.               The very general subject of equity has its ancestry in natural law;

d.               In constitutional law, the notion of fundamental rights is a natural law notion;

e.               The very idea of supremacy of the constitution is a precept of natural law;

f.               The concept of sovereignty of the people in constitutional law;

g.               In administrative law, the broad concept of natural justice is also  natural law concept;

h.               In criminal law, right to legal representation, protection against double jeopardy and the entire body of fair trial are precepts of natural law;

i.                In Tanzania, the penal code is interpreted subject to the precepts of natural law;

j.                Natural law thinking was used in Kenya by those who advocated for a new constitution by calling for a people driven constitutional making process.

2. HISTORICAL SCHOOL OF LAW

Historical jurisprudence and revolutionary natural law went hand in hand.

It emerged as a counter to a natural law thinking of the revolutionary kind. The propoundersof this school were mainly four:

a.               Savigny;

b.               Putcha;

c.               Maine; and

d.               Hugo

Just like revolutionary natural law of the intelligentsia, historical jurisprudence arose at the same time as legal positivism.

Several factors led to its rise:

a.               The hostility of its proponents to natural law theories which advocated that there was a higher law existing than the law of the feudal state.

They rejected the idea of superior norms which were universal, common to all people and rooted in human reason. Their central thesis was that there is no single law common to all mankind.

There argument was that each people has its own law no less peculiarly its own than its language.

2. There was a jurist, namedThibaut, who professed that Roman law should be codified for German use.

There was a lot of criticism for this proposal because it was argued in Germany that the laws of other people cannot be used in a different territory with a different environment, culture and ideology. It argued that one could not simply transplant law.

3. The attempt to found legal systems based on reason proved revolutionary as was evidenced by French Revolution.

Savigny, who had began his career as a natural lawyer, developed a lasting hatred for revolution by seeing a lasting turmoil it resulted in.

4. The French conquest under Napoleon Bonaparte arose nationalists of Europe.

           Attempts to subjugate conquered countries under French law and culture were rejected. Because French had popularized codified law, there was a lot of hostility towards it in Europe.

5. Montesquieu and Edmond Burke had argued earlier that law was shaped by social, geographical and historical considerations. There was an element of autochthony.  

Savigny in describing historical jurisprudence stated that it is in the nature of the spirit of the people who evolve it.Putcha was later to say that all law was volksgeist i.e. the people’s spirit.

Savigny said that law grows with the growth and strengthens with the strength of people and finally dies away as the nation loses its nationality.

Historical jurisprudences see law as the result of the historical processes because law develops over a period of time according to a national spirit. It asserts that the social life of each people is defined by a social national spirit inherent in that people.

The law of each people is nothing other than the manifestation of this national spirit created and developing no less spontaneously and gradually than the national language. The idea of national language is a distillation of who are we and what is our core.

Historical jurisprudence argues that this spirit is developed from a people’s culture, ideology, history, etc. they argue that if you allow a group to create things, they do so with Excellencies. This national spirit is there from the very beginning of that people. It simply unfolds as the people develop.

The law of each nation is present in the natural spirit in full readiness but is still lattened so that the development of the law means only that the national spirit gradually discloses what is contained within it.

According to Savigny, a nation was a community of people linked together by social, historical and cultural ties and such a nation was capable of bringing together a national spirit.

Savigny did not address the fact that in a nation you could have different camping such that it is not possible to have a national spirit. The answer to this criticism was that the volksgeistgave one the broad principles of the legal system. Minor principles could be derived from other sources.

Historical jurisprudence believes that customary law is the basis of all law. According to them, customary law precedes legislation and custom is superior to legislation. They argue that legislation must always conform to the common/popular consciousness. They further argue that law cannot be of universal application. It is very people specific and it varies with people and ages.

They argue that you cannot criticize the volksgeists for what it is. This means that the law that they produce is beyond criticism.

What historical jurisprudence was silently saying was that looking at the feudal system, that was the best that could be had at that time and you cannot criticize it.

This type of argument tends to insulate one against criticism. It advocates for an evolutionary as opposed to revolutionary process.

Historical jurisprudence was critical against the natural law use of morally     to found law. Custom has to be self correcting if there are problems regarding it.

LESSON EIGHT

The transplanting of Roman law into alien climate of European culminated into the civil law systems that are found in continental Europe.

All civil law countries in Europe got their law from Roman law and are still flourished. This contradicts the idea by historists that transplanting laws causes conflicts.

Another weakness in historical jurisprudence is the problem of fixing with precisions what exactly constitutes the volksgeist as the spirit of people.

The other weakness as advocated by Savigny is that it is not easy to isolate a national spirit for all the people because on the whole, there are many sub groups in society and it is not always the case that we share common values.

The volksgeist theory minimizes the value that individuals of an alien race may have on the laws of a particular country. And yet we have individuals whose philosophy of law has impacted many legal systems. For instance, Lord Denning’sjurisprudence has been utilized in many legal systems away from his home country.

The influence of the volksgeistis utmost a limited one. Whereas there are certain branches of law where the national spirit/character manifests itself e.g. family law, succession law and burial laws, other branches such as commercial law, may not reflect a national character.

Law is sometimes used to change existing ideas. This defeats the argument by historicists that law must conform to custom, e.g. laws against female genital mutilation.

SIR HENRY MAINE (1822-1888)

He was the first great proponent of historical jurisprudence in England. He wrote a great treatise entitled “Ancient Law”. This was a jurisprudence that protected feudalism.

He was learned in Roman, English and Hindu laws. One of his greatest contributions in the study of law was his introduction of a comparative approach to his study of law. He emphasized centrality of studying law from a historical view point.

Given that he was schooled in Roman, English and Hindu law, he was interested in knowing whether one could discover a pattern of legal development from examining different legal systems in a comparative perspective.

His comparative studies led him to discover two types of societies:

a.               Static societies; and

b.               Progressive societies.

He argued that all societies go through the static stage. The stage has four phases and society need not go through all four phases of the static stage. The four are:

a.               Law making by personal command believed to be a divine inspiration, e.g. the Thomist of ancient Greece, the laws of Humurrabi, e.t.c.

b.               The commands crystallized into custom;

c.               A ruler is superseded by a minority who obtain control over the law hence an aristocratic minority takes over.  

d.               The revolt of the majority over against this oligarchic monopoly and the subsequent application of law in the form of a code.

Maine and others argue that all African societies had not reached the third phase as at the time of colonialism. As far as he was concerned, stages one to four consistof spontaneous, social and legal developments.

According to him, in static societies, status defines what happens in the legal domain. Status was initially a fixed legal condition dominated by family dependency such that when you are a member of a household, your life is so much determined by your belonging to family.

According to him, progressive societies moved beyond the phase of codes and status relationships because they are propelled by a conscious desire to improve and develop.

The characteristic feature of progressive societies is that they develop law through these methods:

a.               FICTION

By this method, the law is changed according to changing needs but it is pretended that the law remains what it was.

He gives an example of the Roman familiaby adoption. First, there is the socio-legal notion of family-mother, father and children. Then there is a social reality that some people have no guardian. The law then says thatwe can go through a legal process and a stranger becomes part of the family through the process of adoption.

Another example is the extension of the concept of a person from natural person to legal entities.

2. EQUITY 

It is used to modify the law. It consists of a set of principles invested with a higher soundness than those of original law.

3. LEGISLATION

Is the most direct, comprehensive and systematic method of making law. It expresses an enhanced law making power of the state.

According to Maine, the characteristic features of a progressive society begin with gradual dissolution of family dependency and the growth of individual obligation/duty in its place.

He summarized his thesis by saying that the movement of progressive societies has hitherto been a movement of status to contract.

(C) LEGAL POSITIVISM SCHOOL OF THOUGHT

HISTORY:

After the rise of the Bujuazi middle class, the legal positivism school scholars dismissed natural law because to pursue natural law was to admit a higher law than the law of the state.

Whereas natural law was the oldest school of thought in legal philosophy, legal scholars of the 19^th Century to date argue that legal positivism is the school that holds sway today in most of the current world. 

Legal positivists view law as the command of the sovereign.

In the article by Professor HLA Hart, the following are the key ingredients of legal positivism:

a.               Law is seen as a command i.e. when law is properly promulgated, we have no choice but to obey it. Law is binding. It has a mandatory character. This is the jurisprudence of Bentham and Austin.

b.               The analysis of legal concepts is something:

9. Worth pursuing;

2. Distinct from sociological and historical inquiries; and

iii.Distinct from critical evaluation.

This means that you can pursue law and analyze it without basing such analysis on meta-juridical factors or non-legal factors. 

Hart argues that law is valid even if it contradicts socio-economic interests. If there is law and you feel that it does not address moral considerations, you must nonetheless follow that law although you can advocate for its repeal.

You can accept the law as it is and then ask yourself: “What is the law supposed to be?” this way, promulgated legal standards should be followed religiously.

3. Decisions can be deduced logically from pre-determined rules without recourse to social aides, policy or morality. There must be a distinction between the law de legemata (law as it is) and de legeferunda (as it ought to be).

d.               Moral judgments cannot be established or defended by rational arguments, evidence or proof. The area of morality as far as positivists are concerned, depends on the actor. A given actor can decide either way. It is a question of personal judgment.

e.               The law as it is ‘the law positum’ has to be distinguished from the law as it ought to be. Unhappiness with the existing law does not excuse one from following it.

One of the principle jurists in the field of legal positivism was John Austin. He came to be known as the father of English jurisprudence. He became the principle architect of this school of thought by a twist of history.

He served in the English army for five years. In 1818, he was called to the bar. In 1826, he was appointed to the chair of jurisprudence. In 1832, he published his first lectures which he titled, “The Province of Jurisprudence Determined”.

Before he addressed the concepts of law, he argued that it was important to demarcate the province of law. He argued that law was much more than what he was interested in.

He used English law and a bit of Roman law to arrive at a definition of law which he bequeathed with universal application. He defined law thus: “Law in its comprehensive signification is a rule laid down for the guidance of intelligent being by an intelligent having power over him”.

He sub divided law into two sub categories:

a.               Law properly so called; and 

b.               Law improperly so called.

He described law properly so called as a general command. He defined a command as an expression of a wish by a determinate person or a body of persons that another person shall do or forbear from doing some act subject to an evil or sanction in the event of disobedience.

He sub divided general commands into two:

a.               Laws set by God or divine laws of God; and

b.               Laws set by men to men.

He identified these laws set by men to men as positive law. He further pursued laws set by men to men and categorized them into two:

i.Laws set by political superiors i.e. by a sovereign person or sovereign body of persons to a member or members of the independent political society wherein that person or body of persons is sovereign or supreme. In this category he also included positive laws passed through delegation. 

These are the laws he called laws strictly so called. This was the proper subject of jurisprudence. He defined it as a command of the sovereign backed by coercive force of sanction.

2. Laws set by men to men neither as political superiors nor in the pursuance of rights conferred to them by such superiors. For instance, laws set by master to servant or the rules of a club. He called this positive morality.

In the category of laws improperly so called, he included:

a.               Laws by analogy which are laws set and enforced by mere opinions such as laws of passion and international law. He called thispositive morality.

b.               Law by metaphor which covered expression of uniformities of nature e.g. the law of gravity.

LESSON NINE.

CRITICISM AGAINST AUSTINIAN ANALOGY OF LAW

Austin’s analysis of the phenomenon law has itself faced a number of criticisms. They include:

a.               What he called positive law was contemporary English law and primarily the English criminal statutes;

b.                The distinctions that he made have been suggested were arbitrary;

c.               His view that he had determined the province of jurisprudence has been criticized because even if you define something in a certain way, it is not proper to suggest that that was the only definition;

d.               His source of inspiration, namely English and Roman law, as well as his stint in the army where there are commands were at best limited sources and yet he proceeded to apply the same mind in determining whether certain fields such as international law were law; and

e.               What he called proper law was from his own understanding from the word proper and that is why he excluded customary and international law in the realm of law.

THE CONCEPT OF SOVEREIGNITY FROM AUSTIN PERSPECTIVE

Sovereignty is an important aspect of his perspective of law. He said that sovereignty had two characteristics:

a.               Positive character; and 

b.               Negative character.

The positive character was that the bulk of a given society was in the habit of obedience to the determinate common superior. This is positive because from the sovereign’s point of view, the majority obeys him.

The negative mark was that the determinate superior was not in the habit of obedience to any other superior because a commander cannot be commanded.

He summarized these positive and negative marks in the following words:

“If a determinate human superior receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, political and independent”.

He stated that sovereignty had three attributes:

i.Continuity-the moment you have the first sovereign there will always be a sovereign;

ii.Indivisibility-sovereignty cannot be discharged by more than one agent; and

iii.Illimitability-there is nothing the sovereign cannot do.

His conceptualization of sovereignty has been criticized on the following grounds:

a.               He confuses the de facto sovereign and de jure sovereign. Obedience may be received by the de facto sovereign whereas the de jure sovereign is the law making body.

In England, for example, the crown receives obedience from the subjects but it is parliament which is the supreme law making body.

In third world countries, at independence, the governor general representing the queen was the de facto sovereign and the prime minister was the de jure sovereign.

When he talked of the commander, he must have been referring to the de jure sovereign.

2. The negative mark of sovereignty that the sovereign is not subject to obedience is not correct. Under the well established principle of the rule of law, the sovereign must obey international law and even municipal law.

c.               There are political entities which do not have sovereignty in the western sense. These are what have come to be known as A cephaloussocieties in African settings.

d.               The question of continuity of sovereignty may be questionable in certain contexts. A good example is why a sovereign resigns after dissolution of parliament.

e.               He said that the sovereign was the crown, the Lords and the commons and that included the electorate. This makes the entire concept of the sovereign and subjects meaningless.

f.               The question of indivisibility of sovereignty is not entirely accurate. Sovereignty can be vested in more than one body through delegation.

During colonial times, the legislator of a colony was sovereign together with the legislator of the mother country.

Constitutional practice has on certain contents limited. In the US, for example, the constitution expresses clearly what the federal units can do and what the central unit can do.

7. To become a sovereign, you do so on the basis of existing law. Therefore the existing law cannot be a commander of the sovereign.

h.               There are several laws which are not commands, e.g. contracts law, marriage law, trust law, law conferring voting rights, e.t.c.

JEREMY BENTHAM

John Austin was his student. However, Bentham’s works were discovered much later. He lived between 1748 and 1832.

Was the real father of jurisprudence. Was the champion of codified law.

He advocated for the reform of English law because he thought that English law was in utter chaos. He thought that the first step in this reform was to reform the general structure of the law and that’s why analysis of structure of law was an essential       to any reform.

He categorized jurisprudence into two:

a.               Sensorial jurisprudence; and

b.               Expository jurisprudence.

By sensorial jurisprudence he meant what the law ought to be while by expository he meant what the law is.

When his work was discovered, it was published in 1945 as, “The Limits of Jurisprudence Defined”. It was later revised in 1970 and published as “Of Laws in General”.

He defined law as follows: “A law may be defined as an assemblage of signs declarations of 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 supposed to be subjects to his power”.

He said that every law could be considered in eight different aspects:

a.               The source. The source of every law was the will of the sovereign. It is the sovereign who conceived laws which he personally issued. The sovereign could also adopt laws issued by former sovereigns or subordinate authorities. 

He defined his sovereign as any person or assemblage of persons to whose will a whole community is supposed to be in a disposition to pay obedience in preference to the will of any other person.

2. The subjects of law. This refers to the persons or things.

c.               The objects of law. Meaning each class of acts

d.               Extend of law. The coverage of law in terms of geography or duration of time.

e.               Aspects or character of law. These were four in number:

a.               A law which is a command. This is what he focused on. It is a positive direction. It is in the nature of do “X”

b.               A law which is a non-command. It is a positive non-directive. It is a law which gives you a permission not to do “X”.

c.               A prohibition. It is a negative directive. Do not do “X”.

d.               A law which is a non-prohibition. It is a negative non-directive. You are given permission to do “x”.

The important thing about aspects for Bentham is that the law is something more than just a command i.e. something complex.

6. The force of law or the sanctional character of law. Meaning that if law will prescribe conduct that is or is not desirable, there will be a part prescribing the sanction/punishment.

g.               Remedial appendages. The remedy.

He argued that one must think about all these aspects to come up with an aspect of law.This must be contra-distinguished from Austin who only took command and sanction from his discussion of law.

Professor HLA Hart has been of the opinion that, if Bentham’s, ‘Of Laws in General’ had been discovered and published during Bentham’s lifetime, then it would have been Bentham and not Austin who would have dominated English jurisprudence.

Austin’s and Bentham’s theory has been called the imperative theory of law. Sovereignty and sanction are key to this theory.

Whereas Austin argued that sovereignty is indivisible and illimitable, Bentham did not see why a sovereign cannot be limited and divided. He believed that a sovereign can bind his successors so that people who come after him are bound by the edicts of predecessors.

According to Bentham, part of coming into sovereignty, is the acceptance of prior sovereigns and these calls for continuity.

Bentham’s work also brought on insight of judicial review. That the law passed by a sovereign can be checked by a body other than the sovereign. Although he anticipated the concept of judicial review, he was not ready to accept the fact that the judiciary could undertake judicial review. He thought that this could be left to the dictates of extra judicial norms i.e. morals and religious norms.

He also introduced the notions of rewards which is a perception that people could obey the law because of the rewards they could get from obedience. He however thought that those laws are rear because most people obey for the fear of sanctions.

Whereas Austin developed his concept of law from a mark that was conscious or unconsciously based on criminal statutes, Bentham’s conception of law was wider. This is because Bentham was a reformist. Austin was a conservatist legal jurist.

HANS KELSEN:

His theory of law was known as the “Pure Theory of Law”.

He categorically stated that if you derived a theory of law, such theory should not be informed whatsoever by non judicial factors such as sociology, politics, history, etc.He looked at these factors as impurities in legal theory. He argued that to construct a theory of law, the raw material is law.

He says that the aim of a theory of law just as any science is to reduce scales and multiply unity. He says further that legal theory is a science; it is knowledge of what the law is and not what the law ought to be.

He argued that if one takes a law, one can break it into norms. These norms he calledthe ought prepositions.

For instance, the penal law of murder, the norm would say that if you murder, you ought to be arrested. If you are arrested, you ought to be tried. Eventually you ought to be punished. He calls them ought prepositions because the fact that you are not arrested or that you are not proved guilty and you are not innocent, does not make the law void, it means that the law has been abused.

These ought prepositions are valid because they are supported by a law that is superior to them. This superior norm he calls the grund norm.

The grund norm is valid as amended up to the validity of historically first valid grund norm. The validity of the first grund norm is presumed. Kelsen argues that law is an aggregate of ought prepositions which are hierarchically arranged to the grund norm.

He argues that a legal system hence the grund norm becomes valid because it enjoys the minimum effectiveness. We call this the theory of efficacy.

The grund norm suggests that if “A” happens, then “B” ought to happen, not that “B” must happen.

How do you determine the minimum of efficacy? You can only do that by going into politics and sociology and this is the key criticism of his theory.

LESSON TEN:

PROFESSOR H.L.A. HART

He came up with a theory that he summarized in his book, “The Concept of Law”.

Hart’s concept of law is based on rules. He begins his concept by asking the following question, “When a social group is supposed to have a rule what does that mean?” he answers that question by saying that it means two things:

a.               Members generally perform certain actions. These he calls the external aspect of a rule.

b.               There is a critical reflective attitude shared by most members of the group towards the conduct in question. These he calls the internal aspect of the rule. 

Hart says that these kinds of rules exist on etiquette, morals and most areas of societal phenomena.

However, Hart argues that there are those duties which are about duties and obligations. These arise when the general demand for conformity is insisted.It also happens that in this kind of rules the social pressure that is brought to bear upon those who deviate or about to deviate is great.

When these two things happen, then we are talking about obligation rules. Obligation rules are associated with some kind of price feature of social life meaning that society perceives that the making and implementation of these rules assist the society in a fundamental way. Obligation rules define society and secure society.

Whatever obligation rules demand usually conflict with a person’s interest.

If the social pressure that is brought to bear upon those persons who deviate includes physical force then according to Hart, this is a primitive kind of law. He argues that this is the kind of law that you will find in a primitive society.

In such a society, according to Hart, law at its most developed is obligatory rules. This is law for the bare survival of that society. It includes rules restricting violence, theft, deception, e.t.c.

Hart described these as the minimum requirement of law. These rules are necessary for the simple reason that men and women are selfish. They nonetheless have a tendency to co-operate. They do so, so that they can survive in a state of limited resources. He argues that society needs more than these basic core primary rules. This is because of the following reasons:

a.               There is need to change rules from time to time because though you have basic rules, you require a process through which you can add to these rules to develop them. This is why you have legislation that deliberately makes rules both primary and secondary.

b.               There is need to decide on disputed questions and for that we need rules of adjudication.

c.               Primary rules are deficient on their own because there is need for criteria to determine which rules are rightly regarded as obligation rules and which ones are not and to do this you need rules of recognition.

These three he calls secondary rules. The introduction of these types of secondary rulesrepresents a society moving from a pre-legal status to a legal status.

Therefore the union of primary and secondary rules creates a legal system and therefore law.

He therefore defines law as a union of secondary and primary rules. Hart’s legal positivism is one which defines a rule and then what law is and the constituent element of a legal system.

Hart shares a trait with Kelsen in the sense that Hart’s secondary rule of recognition has a similarity with Kelsen’sGrund Norm.

SOCIALOGICAL JURISPRUDENCE

It was associated with Ehlirch and Roscoe Pound.

This school came into being after a crisis with legal positivism.

The idea that law is law was not tenable especially with emergence of working class. The working class had interests which were in conflict with those of the ruling class.

Methodically this school evolves a shift from Kelsenian jurisprudence of making law from law to an interest in considering the connection between law and society. Ehlirch argued that law is an emanation of society.

If you want to know what the law is, then you ask yourself how people conduct their affairs in the society. This he calls the living law.

Roscoe Pound is the father of sociological jurisprudence. He argued that law is a tool for harmonizing conflicting interests in the society. Law is a tool for social engineering and the lawyer is the social engineer.

He considered law to be a tool for social engineering because parental authority and religion have collapsed.

Pound considered individual interests, social interests and public interests and said that law should be used to harmonize their co-existence. Law is like a sieve of interests.

The basic thing about sociological jurisprudence is that it marks a shift from the law as a thing which comes from the commander. We now have capitalism maturing to accommodate the working class.

MARXIST/ LENNIST SCHOOL OF THOUGHT

KARL MAX

In this school of thought, law in the first instance is class based. Law is an instrument for the dominant class.

Law is as partisan as the state itself. Law champions the interests of the ruling group. The interests of the subordinate groups are only catered for to the extent that they coincide with those of the ruling group.

All states are class defined.

Law is very deliberately used therefore to promote the interests of the ruling groupand to subordinate the interests of the subordinate group.

In socialist society, you have the state of the majority. In that society, the working class overthrows the capitalist and commands the means of production.

Socialism is a state towards communism. Within communism, there is no state. There is administration of things where all of us are equal.

In communism, we are expected to be so cultured that we work to our maximum and get according to our need. It is expected that there is an abundance of commodities.

The Soviet Union was supposed to have become a classless society when the communist state is reacted.

Communism did not succeed and was triumphed by capitalism.

LEGAL REALISM

This school of thought had its way in America by Scandinavian countries.

In this school of thought law is seen as a prediction of what the courts will find to be law. Law is what the courts say is law.

In America, for example, the nine judges of the Supreme Court can disqualify law passed by congress.

America has embraced legal realism to the extent that even the teaching of law reflects this philosophy.