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Jurisprudence(1) Notes

Jurisprudence (University of Nairobi)

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JURISPRUDENCE

GPR 300

TAUGHT BY:MS.NANCY BARAZA

FROM SEPTEMBER 14TH 2013

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LECTURE 1: SATURDAY 14TH SEPTEMBER 2013- 8.00-11.00 AM (LECTURE HALL B5)

TOPIC 1: SCOPE, DEFINITION, NATURE & PURPOSE OF

JURISPRUDENCE
MEANING OF JURISPRUDENCE

The word “jurisprudence” is derived from the Latin “jurisprudentia” which is made of two sets
of words namely
a) Juris- means law
b) prudentia – means prudence, discretion, foresight, thought, the exercise of good
judgement, common sense, caution etc in the conduct of practical matters.
Hence the word jurisprudence can be described to generally meaning knowledge or study of
(social) science of law.
The term jurisprudence first used in English Law in 1628 when prudence meant skills in a
particular matter.
This has been considerably reinforced by the fact that it is only in comparatively recent times
that legal education has established itself as an acknowledged discipline in English universities;
Law was previously taught under an apprenticeship system whereby knowledge of the law was
picked up in the course of legal practice without any systematic instruction.
Therefore literally jurisprudence would mean:
a) Study of law
b) Philosophy of law
c) Science of law
d) Legal theory etc
Jurisprudence may also mean other things in particular context e.g.
a) Case law
b) Law of a particular jurisdiction e.g. Kenya,French,America,Nigeria etc
c) Particular ‘families’ of law e.g. the civil law tradition, derived from Roman law as
compared with the common law tradition descends from English common law.

DIFFERENT PHILOSPHERS DIFINITION OF JURISPRUDENCE

1. JOHN AUSTIN:
He believed in the philosophy of positive law, laid down by a political superior authority in
controlling the subjects.
The matter of jurisprudence is positive law; law, simply and strictly so called or law set by
political superiors to political inferiors.
He divides jurisprudence into two
i. General Jurisprudence: It includes such subjects or ends of law that are common to all
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subjects.
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ii. Particular Jurisprudence: The science of any actual system of law or a portion of it.

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2. THOMAS E HOLLAND
He defines jurisprudence as the formal science of Positive Law

3. SALMOND
He defines jurisprudence as the science of law and by law he means the law of the land.
He sees jurisprudence in two senses
i. Generic Sense: Which includes the entire body of legal doctrines and he further divides
these body of legal doctrines into two kinds.
a) Systematic/Expository Jurisprudence: This deals with the content of an actual
legal system existing at any time.
b) Legal History: Deals with the purpose of the science of legislation forth law as it
ought to be

ii. Specific Sense: Deals with a particular department of legal doctrine. It is theoretical and
general jurisprudence.

BRANCHES OF JURISPRUDENCE

1. ANALYTICAL JURISPRUDENCE
This is studying scientifically what the law actually is, looking at and analyzing specific legal
systems and their structures so as to understand how they operate.
It includes such concepts as
a. Codification (law making process through customs and pre-existing norms)
b. Commands (Sovereignty and legal imperatives
c. Cognitivism (True conclusion on morality and justice through reasoning and perception)
d. Contractarian (social contract)
e. Critical Legal studies (American legal movement)
f. Economic Analysis
g. Formalism (Certainty rather than individual)

2. HISTORICAL JURISPRUDENCE
A movement that grew up alongside legal positivism in the late 18th Century and 19th Century as
a reaction to Natural law.
Especially popular in Germany under the influence of Hagel and Savigny and developed in
England by Maitland, Pollock and Maine.
It includes such concepts as
a. Imperative: the legal positivist idea that law derives from the commands of the
sovereign or ruler in a given legal system (John Austin).
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b. Induction: a process of reasoning by which specific conclusion necessarily follows from a

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set of general premises.

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c. Intuitionism: the idea that people’s conscience enable them to know the difference
between good and evil, wrong and right so that they instinctively know how to behave.

3. ETHICAL
This is the science and philosophy of law, which may further particularized and qualified by such
descriptions as historical, critical, sociological, economic etc.
It involves such concepts as:
a. Justice: The moral principle that determines the fairness as opposed to the legality of
actions.
b. Law: A set of rules or norms of conduct permitting or preventing specified behavior or
relationships of persons, legal or natural, with punishments and remedies according to
the type of matter of consideration.
c. Legalism: perception of the social world in the context of legal ideas, a vital component
of the Western Liberal world view.
d. Materialism: (Karl Marx)
e. Metaphysics: (Theoretical philosophy of being and knowing)
f. Morality: The root of fundamental differences between Natural law and Legal
Positivism.
g. Moral Philosophy: The traditional study of morality i.e. the process of reaching moral
judgments by humans striving to decide what is right and wrong.

4. NORMATIVE
Considers what the law ought to be thus involving evaluation against subjective standards and
seeking a moral element of good.
It involves such concepts as:
a. Norms: standards of social behavior generally acceptable within a particular legal
system (See Hans Kelsen –qualified instructions to officials to apply sanctions
{secondary}, prompted by a {primary norm} that justifies such sanctions.
b. Philosophy: The rational investigation of being; knowledge and right conduct.
c. Policies and Principles: Policies are the expressions of desirable (legal) objectives to be
achieved within the society, but can be overruled by principles on occasions when there
might be conflict. See

R vs. Sigsworth
The policy that an heir can inherit may be over-rules when the potential beneficiary murders the
testator in order to gain premature possession of his inheritance.

R vs. Allen
A married defendant “married” again, and argued that he could not have been guilty of bigamy as the
second marriage was illegal, but to assert the desired legal principle marriage on the second occasion
was treated as meaning having gone through the ceremony of marriage.
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d. Sanctions: In legal positivist theory, the pain, suffering, consequence or punishment

that is supposed to be the motivating factor in persuading people to obey the law
examples include fines, imprisonment, community service and reparation.

5. SOCIOLOGICAL
A theoretical approach to law that treats it as a social phenomenon and so involves examination
of its origins, operation and the effect it has on society
It includes such concepts as
a. Syllogism: Logical conclusion derived from two proposition the major and minor premises.
b. Teleology: Purpose leading towards an inevitable conclusion (Classical Greek Thought).
c. Utilitarianism: The ethical theory that the highest benefit lies in the greatest good of the
greatest number (Jeremy Bentham and John Stuart Mill).

CURRENT DEFINITION

The term jurisprudence may tentatively be described as any thought about law and its relation
with other disciplines such as philosophy, economy, anthropology, politics, morality etc.

SUBJECT MATTER OF JURISPRUDENCE

Jurisprudence involves the study of general theoretical questions about the nature of laws and
the legal systems about the relationship of law to justice and morality and about the social
nature of law.
A proper discussion of questions such as these involves understanding and use of philosophical
and sociological theories and findings in their application in law.
A study of jurisprudence should encourage students to question assumptions and to develop a
wider understanding of the nature and working of the law and the questions of theory which
may occasionally spring up.
Hence jurisprudence deals with
a. The nature of law and legal systems
b. The relationship of law and morality
c. Social Nature of Law
d. It is a traditional Black Letter law (as written or legislated).
e. It does not concern itself with specific areas of law e.g. contracts, torts
f. It does not concern with a particular jurisdiction but it’s universal.
g. Basically it looks at the same subject matter (law) but through different philosophical lenses
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MAJOR QUESTIONS ASKED BY JURISPRUDENCE

See the following cases

Oppenheimer vs. Cattermole [1976] A.C 249

A German Jewish refugee was deprived of his German nationality by a Nazi decree. The question (over
30 yrs later) was whether an English court should regard him as effectively deprived of his German
Nationality. If so he would be unable to claim dual nationality entitling him to exemption from United
Kingdom tax on pension paid by the Federal Republic Germany. The Federal Constitutional Court had
decided in 1968 that the law was so obviously inconsistent with the fundamental principles of justice as
not to be regarded as valid law, but that a person was not to be treated as a German unless he applied
for renaturalisation.The House of Lords accordingly felt itself bound to hold that Oppenheimer had lost
his German citizenship in 1949 (the date of the German Basic Law) since he never applied for
renaturalisation.

Obiter views were expressed as to whether, apart from the renaturalisation provision, an English court
could have upheld the deprivation of nationality under the Nazi decree. A majority favored rejecting it,
reliance being placed on public policy. But Lord Cross also said that to his mind “a law of this sort
constitutes so grave an infringement of human rights that the courts of this country ought to refuse to
recognize it as a law at all”.

From the above case several questions arises e.g.

1. What are human rights or indeed what are rights?
2. What is sufficiently grave infringement and who decides and what are the effects of
deciding so?
3. Is such a law not a law at all? And if it is not are citizens released from their obligation to
obey?
4. Indeed do citizens have obligation to obey law and if so what is the nature of the
obligation? Is it qualified or obsolute? If qualified in which ways?
Jurisprudence does not provide answers to these questions but it does offer pointers, clues,
insights; it teaches students the rudiments of moral arguments.
See also

Madzimbamuto vs. Larder-Burke

This is a litigation pursued in the aftermath of the Rhodesian unilateral declaration of independence.
The immediate question concerned the validity of a detention effected by those in charge of a colonial
state purported to throw off its shackles of dependence.

This is an appeal from a determination contained in a judgment of the Appellate Division of the High
Court of Southern Rhodesia dated 29th January 1968. The appellant's husband is detained in prison at
Gwelo. If that determination is right he is lawfully detained. The appellant contends that that
determination is wrong in law and that he is unlawfully detained. For reasons which will appear later
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their Lordships decided that the appellant has a right to appeal: no objection has been taken at any
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stage of this case to the appellant's title to raise these proceedings.

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Fundamental questions arises from this case e.g

1. What is a legal system?
2. What is meant by a revolution? Is it juridical different from a coup d’etat?
3. What is the role of a judge in such a situation?
4. What is the relationship between validity and effectiveness?
5. What is the relationship between law and others?.
6. Are all rules equal authoritatively?
7. What gives rules authority?
8. Is there an all or nothing concept of law?
9. Is law affected by selective enforcement?
10. Is the force of authority of law diminished by poor reasoning?
NB: Many judges believed in this case in pure science of law as developed by Kelsen;there is a
Grand Norm (higher norm) e.g. the constitution and a Lower Norm which derive their validity
from the higher norm

Jackson and Others vs. Attorney General

The House of Lords had to decide whether the Hunting Act 2004 was a valid Act of Parliament. The
Act had been forced though under the Parliaments Acts of 1911 and 1949.The lords held that the
1949 Act had been validly enancted under the procedure established by the 1911 Act, and that the
Hunting Act had been validly enacted under the amended procedure.
In this case for the first time at least judicially the courts entertained the thought that courts might
be able to strike down an Act of parliament as incompatible with fundamental values.

Fundamental questions in this case

1. Foundation of the legal order and about sovereignty.
2. Can parliament (Dicey) pass any law or are there fundamental values such as human
rights, democracy and the rule of law embedded within the constitution?
3. Are there limits to what parliament can do?e.g can they abolish elections? Or can it
extend the period of detention without trial?

NB: Dworkin argues there are principles underlying the law such as justice and fairness and due process.
This constructive interpretation of law means that sovereignty of parliament is not absolute.

HISTORICAL CONTEXT OF JURISPRUDENCE

Jurisprudence is contextual; meaning all the theories have not been articulated in a vacuum.
Therefore jurisprudence is not a historical (without history).
The contextual approach reveals the historical, moral, cultural basis of particular legal concept.
It has the following major historical moments in jurisprudence:
1. Ancient Times (Aristotle Times)
2. Renaissance
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3. Enlightment Period (Period of science and industrialization)

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4. Modern Period

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5. Post Modern (Contemporary Issues)

There is also relationship between law and jurisprudence with other disciplines e.g history,
morality, politics and economics.
In the 20th Century we are also seeing the influence on law and jurisprudence by other
disciplines e.g
1. Interpretive-Ronald Dworkin (the 3rd Path)
2. Deconstructionism
3. Penumbra Cases (HLA Hart; cases not covered by the law)
4. Liberalism etc

MAJOR MOVEMENTS IN JURISPRUDENCE

1. CLASSICAL
Ancient times
Natural School of thought with the ancient, medivial and contemporary period.
Aristotle,Plato,Cicero,St.Augustine and Thomas Aquinas
Modern Natural Law theory-Lon Fuller and John Finnis

2. LEGAL POSITIVISM
Classical positivists-John Austin, Hans Kelsen and Jeremy Bentham

3. POST MODERN THEORIES

Feminism and Deconstructionism.

VALUE /FUNCTION OR IMPORTANCE OF STUDYING JURISPRUDENCE (Relationship between Theory

and Practice)

1. Generality; in law generality can mean improvement e.g. law relating to negligence has
progressed from a host of individual rules about a particular types of situations to a general
principle. One of the tasks of jurisprudence is to educate, organize or construct concepts serving
to render complexities of law more manageable and more rational and in this way, theory can
be held to improve practice.
2. Educational Value: Since the logical analysis of legal concepts sharpens lawyers’ own legal
techniques, they become less logically formal and appreciate social realities and social functions
of law. This is done by setting the law in its proper context, considering the needs of society and
taking note of advances in related and relevant disciplines.
3. Legal Theory ;Jurisprudence is also useful in understanding certain concepts such as precedents,
statutory interpretation, the nature and character of the judicial process or certain types of
change of government e.g. Kelsen’s pure theory of law.
4. Legal Theory/Jurisprudence has been and ought to be of use in the theory of social and political
organization as well as legal practice. It can be used in understanding the working of society in
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development theories and for purposes of social change whether reformist or revolutionary.
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5. Common Law lawyers and the doctrine of precedents have a natural tendency to look at history.
Jurisprudence teaches them to look forward, sideways and makes them realize that answers to
problems must be found by consideration of present social needs rather than distilled wisdom
of the past.
6. In legal terms /circles; legal theory or jurisprudence has been used in courts for instance natural
law concepts or Hans Kelsen’s pure theory of law. It has been used to interpret the role of
precedents and statutory interpretations as well as constitutional interpretations. Before the
courts.
7. Jurisprudence fosters a disciplined enquiry that enables one to explain in more or less a
profound way human experience e.g. Historical and Sociological schools of jurisprudence.
8. Jurisprudence enables one to arrive at a reasonable picture of reality by examining whether a
given area of science ,religion, history etc meets certain minimum standards of coherence,
clarity and credibility

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LECTURE 2: SATURDAY 21st SEPTEMBER 2013- 8.00-11.00 AM (LECTURE HALL B5)

TOPIC 2: THE NATURAL LAW THEORY

Of all the Schools of jurisprudence, natural law school stands out. This is so not because it is the
most important of all the schools but on account of the fact that it is about the only theory that
is sustained by idealism.
In other words, natural law exists not in the material world but in the world of ideas. All other
schools have one or more negative things to say about the failure of natural law to meet the test
of science, that is, its inability to be demonstrated scientifically.

MEANING OF NATURAL LAW

Natural law is that branch of law that is variously defined or described as the law of nature,
higher law, eternal law, divine law.
Several Scholars have defined natural law differently but all attributing to the same principles
e.g.

SCHOLAR DEFINITION
CICERO (106-43 BC) True law is right reason in agreement with nature; it is of universal
(De Republica) application, unchanging and everlasting; it summons to duty by its
commands, and averts from wrongdoing by its prohibitions.
And it does not lay its commands or prohibitions upon good men in
vain, though neither have any effect on the wicked.
It is not a sin to try to alter this law, nor is it allowable to attempt 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 an expounder or interpreter of it.
And there will not be different laws at Rome and at 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 there will be one master and
ruler, that is, God, over us all, for he is the author of this law, its
promulgator, and its enforcing judge.
Whoever is disobedient is fleeing from himself and denying his human
nature, and by reason of this very fact he will suffer the worst penalties,
even if he escapes what is commonly considered punishment.
BURLAMQUI (1751) Natural law comprises rules which so necessarily agree with the nature
(Principles of Natural and state of man that, without observing their maxims, the peace and
Law) happiness of society can never be preserved.
They are called natural laws because a knowledge of them may be
attained merely by the light of reason, from the act of their essential
agreeableness with the constitution of human nature: while, on the
contrary, positive or revealed laws are not founded upon the general
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constitution of human nature but only upon the will of God: though in
other respects such law is established upon very good reason and
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procures the advantage of those to whom it is silent.

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KELSEN (1957) The natural law doctrine undertakes to supply a definitive solution to
(What is Justice) the eternal problem of justice, to answer the question as to what is
right and wrong in the mutual relations of men.
The answer is based on the assumption that it is possible to distinguish
between human behavior which is unnatural, hence contrary to nature
and forbidden by nature …certain rules which provide an altogether
adequate prescription for human behavior.
Nature is conceived of as a legislator, the supreme legislator.
RADBRUCH (1945) There are principles of law that are stronger than any statute, so that a
(Five Minutes of Legal law conflicting with these principles is devoid of validity.
Philosophy) One calls these principles the natural law or the law of reason the work
Note that Radbruch – a of centuries has established a solid core of them.
positivist who witnessed
the horror and destruction
wreaked by the German
Reich on its neighbours
had to fall out with his first
faith in preference for
natural law.

There are two distinct interpretation to the meaning of Natural Law

1) DIVINE INTERPRETATION

Natural law could be synonymously called the law of nature, divine law, eternal law, etc. Natural
law theories are basically theological or secular.
Theological theories rely on allusion to God, the Holy Books and the prophets, in arguing for the
existence or validity of natural law.
These theories regard the universe as being founded and ruled by some deity, God, etc. The
creator has laid down rules and principles by which the universe (including the earth inhabited
by human beings) is ordered and regulated.
It is from these principles that the morals or conscience of humanity derive.

2) SECULAR INTERPRETATION
On the other hand, secular theories depend on human reason (or will).
They canvass the view that natural law exists in rational human beings who are created by God.
Because they are the creatures of God, they possess the rational idea, the reasoning capacity to
know what is good and what is bad.
They have the intellect even without the assistance of another person to discover natural law or
the law of nature.
Guided by the ensuing knowledge, he is able to order his life, according to his choice, in a moral
way or in an immoral manner.
In other words, secular theories demystify natural law by detaching God there from, that is, by
positing that natural law will or can be independent of God.
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Thus, on a rather extreme note, Hugo Grotius said that there would be natural law even if there
were no God.
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ESSENTIAL FEATURES OF NATURAL LAW

1. Natural law as Universal, Unchanging and Everlasting.

Looking at the major legal systems of the world, this assertion can hardly be faulted.
This is because there are traces of natural law existing in them irrespective of time, space and
geography.
Examples

a) Social Contract - This derives from natural law. It is a theory which states that citizens agreed to
submit their rights to their rulers in return for responsible and responsive rulership or
governance. It forms the basis of modern State system anchored on democracy.
b) Democracy- Democracy is the government of the people, for the people and by the people.
There is hardly any system of government in contemporary world that is not founded upon
democracy. Any exception is an aberration.
c) Human Rights- They are rights that appertain to a person by reason of his being a person.
Amongst other things, human rights regime guarantees or upholds the equality of all before God
and law, right to life, freedom of speech, freedom from discrimination, etc. Citizens cannot
barter them away. In contemporary international human rights law, these rights are grouped
into generations of rights. And they are domesticated or deemed to be operative in all States of
the globe.

However, notwithstanding the universality and the existence of certain natural law concepts in
all legal systems, note, however, that in different civilizations past and even present, natural law
has been a ready tool in the hands of persons and systems of varied ideological persuasions.
Thus, natural law has been used by democrats, liberals, autocrats, dictators, etc to advance their
causes, causes that have been positive and negative to the common good of the people.
See

Professor Alf Christian Like a harlot, natural law is at the disposal of everyone.
Ross (1899-1979) The ideology does not exist which cannot be defined by an appeal to
(On Law and Justice) the law of nature.
And, indeed, how can it be otherwise, since the ultimate basis for
every natural right lies in a private direct insight, an evident
contemplation, an intuition. Cannot my intuition be just as good as
yours?
Evidence as a criterion of truth explains the utterly arbitrary character
of the metaphysical assertions.
It raises them up above any force of inter subjective control and
opens the door wide to unrestricted invention and dogmatics.

Put differently, natural law has been used to advance the freedom of humanity; at the same
time, it has been utilized to perpetrate inequality or slavery. Such was the case in the
civilizations of Egypt, Mesopotamia, China, India, Rome and Greece.
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2. That which is good is in accordance with nature but that which is evil is contrary to nature.
Therefore, natural law is good; (Concept of Good and Evil).

Natural law is usually associated with good.

This is predicated on the origin of nature or humanity. The almighty creator is good and in Him is
no evil. He is omnipotent and omniscient.
In the fullness of these qualities, He designed the universe (including humanity) in an orderly
fashion for the good of all.
Operating within the scope of that design harmonizes with that order.
Deviation there from means disorder or rebellion.
Therefore, anything done consistently with the divine design is good; anything contrary is bad or
evil.
Thus, man-made law that does not meet the requirement of divine good is evil.

3. There exists an order in nature which is rational and which can be known by man; (Man’s
Comprehension of Nature).

Man, as a creature of the almighty God, has some of the qualities of the creator.
One of such is intelligence. Another is reasoning power.
When God created man, He gave him the power of intelligence and of reasoning.
Rene Descartes says that to live according to reason is to live naturally.
With these, man is able to decipher or discern what the divine is or possibly is.
Thus, according to Aquinas, natural law represents man’s participation in the cosmic order or
universe with the aid of the power God has put in man.
We may call that capacity to participate in nature conscience or that still small voice within us,
telling us what is good and what is not, and propelling us to do that which is good and to reject
that which is evil.

4. There are absolute values, and ideals emerging there from, which serve as the validity of laws.
A law lacking in moral validity is wrong and unjust.(Law and Morality) or (Relationship of
Natural Law and Positive Law)

a) De Lege Feranda (The Law as it Ought to Be)

Natural law, which essentially focuses on de lege feranda (the law as it ought to be), is a law
whose existence is validated or proved by reference to transcendental, metaphysical, idealistic,
theological or rationalist arguments.
Adherents of natural law argue that natural law reflects the order of nature and represents a
blueprint for decent or orderly existence of humanity.
Such order is super ordinate or superior to positive law.
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Natural law is predicated on value judgments, representing a standard against which the
goodness or otherwise of positive law is measured.
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Therefore, in order for humanity to live in peace and harmony, there is the need for human
beings to live in accordance with the law of nature.
Under this scheme, every human law that fails to measure up to the moral standard set by
natural law fails the test of legal validity. Such a law would be unworthy of the name ‘law.’

b) Lex Lata ( The Law As Is)

On the other hand, Positive Law – which fundamentally concentrates on lex lata (the law as it
is) – is law made by man.
Proponents contend that this is law whose existence can be proved scientifically in the sense of
its being physically observed, located and touched.
In disclaiming the position of natural law, they accuse natural law theorists of confusing the ‘is’
with the ‘ought.’
Put differently, the contention is that natural law tends to derive an ‘ought’ proposition from an
‘is’ proposition. This muddles up the system of thought.
See the following proponents of positive law

AUSTIN According to Austin, the validity or legitimacy of the (positive) law is one
thing, its merit or demerit another.
What he meant to say was that positive law is concerned strictly with the
validity of the law.
Any discussion of its merit or demerit was certainly not the concern of
positive law.
If, however, moral philosophy is interested in that subject, all well and
good.
But it must do well to avoid confusing the issue of validity with that of
the propriety or otherwise of the law.

PROFESSOR HART Moreover, as Professor Hart stressed, there is no necessary connection

between law and morals.
By this he did not deny that there are common grounds or convergence
between law and morality.
Rather, he is saying that it is not a matter of course that law must be
connected to morals or that one must be tied to the apron string of the
other.
That is why there are wide areas of divergence between law and
morality.
IMMANUEL KANT Immanuel Kant says that the thrust of law is external (that is, law
intervenes only when there is an external manifestation of what a
person is thinking about) while morality is a matter of internal
conscience.
This is evident in inchoate offences in criminal law such as the law of
attempt, as codified in
Therein, an attempt does not become punishable unless the offender
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manifests his intention by some overt act.

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Law is a product of conscious, formal procedure in contrast with morality which is created
informally. Man-made law does not just emerge out of the blues with the few exceptions of
dictatorships or autocratic systems.
In modern democracies or even pseudo-democracies, enacting a bill into law goes through
series of procedures outside and within the legislative houses. It is only when it is finally passed
by the legislators and assented to by the President or Prime Minister that it becomes law.
But there is no such air of formality or procedures in the making of morality.
In fact, morality is not made; it grows or emerges.
Pre-existing moral norms are handed down from generation to generation until the people find
it unacceptable and abandon it.
Regarding the law of God, you should recall that natural law is everlasting and unchanging. It has
always been there, waiting to be discovered by the intelligence or reasoning power of man.
Law prescribes right or wrong judgment but natural law prescribes good conduct. Recall that
Austin insisted on the separation of the validity of law from its propriety. Therefore, the validity
of law is confined only to the issue of whether it is right to do one thing or wrong to do another.
For example the law that gives me the right to own acres of land in a community of landless
peasants is valid if it was promulgated in accordance with the requirements for such
promulgation. But, from the perspective of natural law or morality, this would be bad or evil
because one man possesses to the detriment of many others. Therefore, such a law would be a
bad law.
Law prescribes sanctions against violations, e.g., imprisonment, fines, seizure, confiscation or
forfeiture of property, etc. In many cases, these sanctions may be coercive, for example,
criminal law. Although others may be not so coercive – for instance, power-conferring laws such
as those on marriage, wills, and contracts – they still contain some elements of sanctions or
deprivation or denial of benefits or privilege.
On the other hand, violation of natural law is not punishable by man but by God or the creator.
See, for example, the Holy Bible and the Holy Koran. By and large, note that only God or spiritual
forces have the mandate to punish breach of the divine will.
Moreover, the punishment of any deviation from the morals fashioned by man is different from
that stipulated by positive law.
The sanction, moral sanction, is of a different kind, different from legal sanctions. Moral
sanction is guided more by public opinion than by anything else. For example, the criminal law
imposes on a parent a duty of care towards his infant child but it does not similarly obligate a
non-parent. But natural law or morality would impose equal duty of care on both biological and
non-biological parents.

THE ATTRACTION OF NATURAL LAW

1. Defining Injustice
For Aquinas “the force of a law depends on the extent of its justice. According to the rule of
reason.
But the first rule of reason is the law of nature.
Consequently every human law has just so much of the nature of law as it is derived from the
law of nature.
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But if in any point it departs from the law of nature it is no longer a law but a perversion of law.
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Aquinas was not in doubt as to when human laws were just, they were when they served the
common good, distributed burdens fairly, promoted religion and were within the law making
authority.
It should therefore be added that injustice may be done not just following the law but applying
it unfairly or arbitrarily favoring the interests of some citizens over others.

2. Deciding What a Good Law is

Is this a decision that can be left to everyone’s conscience or can it only be taken by
professionals, judges or jurists, applying criteria which they consider principled and morally
coherent?
If the basis for valuation is reason, it is difficult to deny this decision to anyone.

3. Identifying Unjust Laws

Aquinas was in doubt that such perversions of law did not bind the moral conscience of man
and could be ignored but this was subject to one highly caveat.
The law should be obeyed when to break it would lead to scandal or civic disturbance.(Aquinas
in other words weighed up the consequences of disobedience to unjust laws against the possibly
deleterious consequences of permitting it, including the example that disobedience sets to
others who may as a result choose to flout other laws which may not be morally defective.
Finnis conclusion which is close to Aquinas: “The good citizen” he argues “may be morally
required to conform to (un just) stipulation to the extent necessary to avoid weakening “the
law” or the legal system as a whole. However since the ruler should repeal such a law rather
than enforce it he has no right to expect conformity from it.

4. Role of Judges (Especially in implementing Unjust Laws)

Finnis passes the dilemma that such “laws” present to officials as judges; are judges supposed to
enforce unjust laws?
In the book Hart’s Concept of Law there is an argument that not to enforce such law would
infringe a principle of justice; this might not always be true unjust laws should not be enforced
for the value of implementing a law, fidelity to law, may be outweighed by the worse injustice
which enforcing the law might perpetrate.
Even within a democratic system there are circumstances where a judge or other official may be
said not to be in violation of his duties to uphold the law he refuses to implement unjust law.
A judge’s obligation to implement the law has moral limits.

5. Practical Reasonableness
Finnis argues that a theorist cannot identify “the central case of that practical view point which
he uses to identify the central case in his subject matter unless he decides what the
requirements of practical reasonableness really are.
In relation to law the most important things for the theorists to describe are the things which in
his judgment (for his values inevitably influence his selection of concepts to use in describing
law) “make it important from practical viewpoint to have law.
It follows that when these important things are missing or debased the theorist must explain
what it is in the situations of such societies that causes absence or debasement.
Finnis concludes that a theory of natural distinguishes “the practically unreasonable from the
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practically reasonable, It claims to be able to identify conditions and principles of practical right
mindedness of good and proper order among men and in individual conduct”.
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HISTORICAL DEVELOPMENT OF NATURAL LAW

1. GRAECO-ROMAN HERITAGE (WESTERN JURISPRUDENCE)

a) THE GREEKS
Greeks developed the idea of rationalism. Rationalism holds that the universe, being governed
by intelligible laws, was capable of being understood by the human mind.
From such rationality, it was possible to derive rational principles that could be put to use in the
governance of human conduct in the society.
In ancient Greece, the belief flowered that natural law was metaphysical, transcendental, and
independent of the will of the individual.
The Greeks distinguished between logos (laws of heaven) and nomos (man-made laws). Where
both are harmonized or, where nomos harmonizes with logos, there will be cosmic harmony, a
condition in which everything functions efficiently. In the event of a disconnect between both,
there will be chaos or anarchy. Redressing this would entail going back to status quo ante
bellum.
Therefore, the destiny of the Greek society was tied to the apron string of heavens. The polis
(City State), or civil society, was to be organized in a way consistent with the cosmic order.
It is important to understand that Greek political and legal thought was concerned essentially
with concrete problems of social and individual life.
The following scholars epitomizes the Greek Philosophy

i) SOCRATES (470-399 BC) & PLATO (428-348 BC)

The two are combined because Plato was a student of Socrates
And even though Socrates never published most of his work was known through the writing of
Plato.(The Republic and The Laws were published by Plato)
They asserted that there were principles of morality which were discoverable through the
processes of reasoning.
They argued for the existence of unchangeable principles of morality.
These principles could be discovered by powers of reason and the application of “insight”, so
that law becomes the embodiment of correct reasoning.
Natural (divine) law requires obedience to the positive law and authority.
Justice is a reflection of society’s and man’s harmonious, balanced existence; in its positive form,
however it is no more than a “pale shadow” of “real justice”.
Generally renowned to be the father of philosophy, Socrates was of the view that the laws of
the polis were a reflection of natural law. According to him, natural law was each doing what
pertains to his nature.
Plato further developed the idea of justice as an end in itself having qualities of truth and reality
higher than positive law.
According to Plato, society will be peaceful and orderly if only those well trained take over the
reins of governance. In other words, persons endowed with intellectual superiority are
exclusively those entitled to rule.
The idea of philosopher-kings emanated from here. His proposition is that a person who has
gone through the process of good, seasoned training should aspire to leadership position.
Taking a cue from his master, Plato said that each man was to do what ethically pertains to him.
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In other words, natural law sanctions each person to do only that which nature assigns to him.
Therefore, a slave cannot be master. This is another way of saying that social mobility is a
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Key Jurisprudential issues tackled by the two philosophers are:

CONCEPT ANALYSIS
State and Human Nature The State reflects human nature. No man is self-sufficing, and a division
of labour is needed, allowing each member of society to perform the
tasks for which he is, by nature, best fitted.
The result is the emergence of a variety of groups within society:
craftsmen (farmers, artisans) will produce food, shelter, clothing, etc;
inevitable wars will produce an army of warriors who, as guardians, will
protect the community; the most highly-trained guardians will become an
élite of rulers.
Groups in a State Each of these groups epitomizes one of the three parts of the human
soul.
The craftsmen symbolize the ‘appetitive’ aspect of the soul; their specific
virtue is temperance. The guardians represent the ‘spirited’ part of the
soul; their specific virtue is courage. The rulers exemplify the ‘rational’
part of the soul; their specific virtue is wisdom.
Members of the community will be taught to believe that Nature
demands a harmonious and stratified society, and, so that this end might
be achieved, has mixed brass and iron in the composition of craftsmen,
silver in the composition of the guardians, and gold in the composition of
the rulers.
The ideal State is, in essence, a balanced structure in which all groups
work in harmony. Its unity is an amalgam of diversities.
Justice The State is a means to an end, namely, the attainment of justice.
The general virtue of ‘justice’ arises when each class within the State is
fulfilling its own special functions and thereby attaining its own virtues.
Social Harmony When every class within the State performs according to its destined
function, then social harmony will result.
When each individual is set free from all other occupations ‘to do, at the
right time, the one thing for which he is naturally fitted’, then the
possibility of true justice will emerge.
Harmony, involving the virtues of temperance, courage and wisdom,
must be attained by the individuals who comprise the State.
Knowing and accepting one’s limitations and one’s place, acknowledging
the need to obey orders—here is the essence of what is necessary for the
maintenance of social unity and justice.
Balanced uniformity is, then, the sine qua non of that degree of social
perfection from which true justice will flow.
Types of State The ideal State is the aristocracy controlled by philosopher rulers, in
which justice reigns.
The timocracy epitomizes irrational ambition and love of honour.
A further degeneration is evident in the rise of the plutocracy, in which
greed and the pursuit of wealth predominate.
Democracy is characterized by a very low level of justice; it is an
inadequate system and produces antagonisms.
The final degeneration is despotism. Each type of State reflects human
mental constitutions, and despotism reflects ‘the enlargement of the
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unjust soul’, enslaved by a master passion, with justice totally absent.

Morality and Obedience The ideal State (named ‘Magnesia’) will achieve ‘the true good’ through a
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minutely-detailed code of laws, enforced rigidly, and based upon

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‘Modest living standards’ will be a goal; the ‘excess’ which can destroy
social harmony is forbidden.
Guardians of the Law The ‘guardians of the law’ will impose standards and appropriate legal
regulations. Persons who break the law will be punished by the
imposition of penalties aimed at reform rather than vengeance.
An offender is to be ‘cured’ because his true nature has been ‘conquered
against his wishes’.
Harmony, balance, virtue, are to be seen as the ends of the State and all
its activities. The law assists those activities.

ii) ARISTOTLE (384-322 BC)

Aristotle, a student of Plato, in his Nichomachean Ethics, wrote about justice.
He defined justice as treating equals equally and unequals unequally.
He identified some types of justice such as natural justice, conventional justice, commutative
justice, corrective justice and distributive justice.
He also accepted the naturalness of slavery. This is quite clear from his definition or description
of justice.
His fundamental concern, in his writings on politics, law and justice, was with the delineation of
the path which had to be followed if man was to achieve ‘the good’.
Man, although a part of nature, could control nature through the exercise of his will: it is this
which separates him from all other creatures.
When man is perfected he is, indeed,’ the best of animals’, but, if removed from the ambit of
law and justice, lie is the worst of all’ (The Politics).
Man’s laws must be judged by the extent to which they assist him in developing his innate
powers to the full.
The rule of law involves rule ‘by God and reason’; rule by one man becomes a perversion, based
on ‘appetite and high spirit’.
Law must exemplify reason free from passion, and it must direct magistrates in the execution of
their office and the punishment of offenders.
Law may be employed also as an instrument of education, habituating the citizen to
understanding ‘the good’ and training him to contribute to the welfare of society through his
good behavior.
Justice, for Aristotle, exists among those persons whose relationships are truly regulated by law.
To administer the law is to distinguish the just from the unjust.
The aim of government is, according to Aristotle, to fit the individual for the good life and to
satisfy his social instincts.
Democracy is a degraded form of polity. A lack of moderation, an absence of justice, and the
dominance of selfishness characterize this type of government.
In conclusion Aristotle emphasized the following points
a) Man’s ultimate aim should be the attainment of a “state of goodness” and the political
state is created by nature as a means to this end.
b) A community’s laws should assist in the attainment of the good life. The law giver assists
the citizens to become “good” by habituating him, through law, to knowledge of the good.
Law derives its validity from habit upon which obedience is found.
c) Law is just if it allows persons to develop their capacities within society. Laws of that kind
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will result only from the exercise of man’s reason. Law can be determined only in relation to
“the just”.
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d) There is a perfect, immutable law reflecting human nature; it is universal in mankind.

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iii) THE STOICS (320-250 BC)

The Stoics, who taught the development of self control and fortitude as a means of overcoming
destructive emotions, identified nature with reason.
They posited that reason governs all parts of the universe and that human beings were equally
governed by reason.
They then concluded that people live ‘naturally’ when they conduct their lives in accordance
with reason.
It is represented by the writing of Zeno, and it was concerned with the fostering of a tranquil,
inner life characterized by personal integrity and highly disciplined mode of conduct.
They believed
a) That the universe was governed by “rational minds”
b) The rationality of the universe was reflected in all men and their power of reason made
possible a “natural life” based on “reasonable living”.
c) Man’s reason allows him to differentiate right from wrong and law is based on man’s
concept of right and rectitude.
d) Nature’s law can be identified with the “higher morality”.
e) Basic law is the ruler of all divine and human things.

b) THE ROMANS

Roman law, otherwise known as jus civile, was classified into three types as follows: res (law of
things), actio (law of action), and persona (law of persons).
Note that only a Roman citizen had full capacity to possess right and to create obligations.
The head of the Roman family (pacta familia) had full contractual capacity.
The wife, or a woman for that matter, had diminished capacity.
Women, slaves, infants and persons of unsound mind lacked capacity.
Jus civile was applicable between citizens of Rome only.
As the society grew and interactions with the outside world increased, there was the need to
devise a law or a system of law to apply to non-citizens.
This necessity led to the emergence of jus gentium. It was a law developed by Rome to apply to
foreigners, or to transactions between Romans and non-Romans.
Jus gentium is the crystallization of natural law and the beginning of international law.
The Justinian Code was the first code produced by juris consult (commissioned by Emperor
Justina) to apply to all irrespective of race, creed, status, and nationality.
The notable philosopher attributed with the Roman heritage is

iv) CICERO (106-43 BC)

Cicero (106 BC–43 BC), statesman, scholar, and, reputedly, Rome’s greatest legal orator, is said
to have given the West the basis of its philosophical vocabulary.
His major contribution to jurisprudence rests upon his concept of Nature as providing a source
of rules by which man ought to live.
He propagated in his teachings the concept of a “true law” which conformed to “right reason”,
which “agreed with nature”, which was diffused among mankind and which was immutable and
eternal.
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Laws must be derived from this “true law”.

The following are some of his teachings on various issues in jurisprudence:
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CONCEPT ANALYSIS
Natural Law In De Legibus (begun in 52 BC, but published posthumously), Cicero examines the
basis of law.
To him, law is ‘the highest reason’, implanted in man, and commanding that
which we ought to do and prohibiting the opposite.
The ‘highest form of reason’, which may be discovered in nature, becomes, when
firmly rooted in the human mind and further developed, law.
Law is the standard by which justice and injustice may be measured.
True Law ‘True law’—the eternal law—came into existence simultaneously with the Divine
Mind. It is, in essence, ‘reason in agreement with nature’.
It applies to all men, and is unchangeable and eternal.
To curtail the true law is ‘unholy’; to attempt to amend it is illicit; to repeal it is
impossible.
We cannot be dispensed from it by any order of any institution; nor does it
require clarification or interpretation.
Universality of Law The true law is universal. One of Cicero’s celebrated theses proclaims:

‘Nor will it be one law at home and a different one at Athens, nor otherwise tomorrow
than it is today; but one and the same law, eternal and unchangeable, binding all
peoples and all ages; and God, its designer, expounder and enactor, will be, as it were,
the sole and universal ruler and governor of all things.’

There are those who will disobey the true law. By such acts they turn their backs
on themselves and, indeed, on man’s very nature.
They will, therefore, pay the heaviest penalties by denying their nature, even
though avoiding those other punishments considered appropriate to their
conduct.
The State Man’s instinct to associate with others is at the basis of the desire to form
communities. Men come together in the State in an act of partnership.
The State must be guided and protected by the principles of law.
Obedience of Law Our privileges within the State are secured by the bonds established by law. A
and Freedom State without law is like a human body without a mind.
All members of a State, without exception, and including, therefore, those who
administer it, are under the law.
‘For as the laws govern the magistrate, so the magistrate governs the people, and
it can truly be said that the magistrate is a speaking law, and the law a silent
magistrate’:
De Legibus.We obey the law so that we might be free.
In a State which recognizes the rule of law, any departure from its tenets is ‘a
matter of great shame’.
The State’s responsibilities for the punishment of offenders must be guided by
principle.
Above all, the intention of the offender must be examined, lest punishment fall
upon a person who is not really at fault.

In summary Cicero jurisprudential contribution can be said to be

a) It was not allowable to alter the natural law, derogate from it or to repeal it.
b) We can not be released from this law, nor is any person required to explain or interpret it.
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c) This law is not “one at Rome and another at Athen”; nor is it “one law today and another
here after”. It is the same law, everlasting and unchangeable. It binds all nations at all times.
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d) “Law is the highest reason imbedded in nature which commands what should be done and
forbids the contrary”.
e) “We are born for justice, and law is not based on opinion but on man’s very nature”.

2. SCHOLASTIC PERIOD (1100-1400) (MEDIEVAL PERIOD)

This was the Medieval Period in Europe that witnessed the theological rendition of natural law
especially by St Augustine (354 – 430) and St. Thomas Aquinas (1224-74).
With the Catholic Church leading the system of thought, the period saw the integration of
rationalist and religious approaches to natural law through the seminal work of St. Thomas
Aquinas.
They represent what is known as Normative Jurisprudence.
Normative jurisprudence is that branch of enquiry concerned with the validity of the law, rather
than with, say, its structure or efficacy. It involves evaluations and judgments in relation to
fundamental criteria.
Theories of natural law, which seek to discover criteria and enunciate relevant value-
statements, constitute an enduring aspect of Western jurisprudence.
The following philosophers are associated with the scholastic period :

v) ST.AUGUSTINE (354-430)
Augustine (354–430), one of the early Fathers of the Church, taught that the absolute ideal of
laws of nature had been evident in the ‘golden age’ of mankind, which had preceded the fall of
man.
That age had seen man in a state of innocence and justice; he had lived under the guidance of
the rules of reason.
After his fall, the ‘absolute law of nature’ could no longer be realized. As a result, human law,
together with property and institutions had appeared.
Positive (man-made) law must strive so as to assist man in fulfilling the command of God’s
eternal law: law of this type does not necessarily make men good.
He believed that our earthly existence has been irredeemably tainted with the original sin.
He distinguished between the City of God and the City of man. While the City of God refers to
doing the will of God, the City of man symbolizes a life of sin.
He categorized law into three groups:lex temporalis, lex naturalis, and lex aeterna.
In its role of guardian of lex aeterna (God’s eternal law), the church must exercise total
sovereignty over the State.
If worldly law conflicts with the eternal, natural law, the provisions of that worldly law should be
ignored; worldly law which was unjust could not be ‘law’.

vi) ST.ISIDORE (560-636)

He reiterated Augustine’s teachings on the law and taught that only those rulers who acted in a
spirit of justice ought to command the respect of their subjects.
He said of natural law: ‘Natural law is common to all peoples in that it is possessed by an
instinct of nature, not by any human agreement, as marriage, the begetting and rearing of
children, the common possession of all things, the universal freedom of all…the restoring of
property contracted or lent… For this or whatever is like this could never constitute an injustice
but must be considered in accord with natural equity.’
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vii) GRATIAN
Gratian (fl 1140), a Benedictine, published a collection of texts (Decretum Gratianum) in which
he noted that the
a) Law of nature was to be considered as the law of God. It was ‘antecedent both in point of
time and in point of rank to all things’.
b) It was immutable, and prevailed unquestionably over man-made law.
c) If a custom were to be recognized as valid law it would have to conform to the golden rule
of the Gospel (‘All things whatsoever ye would that men should do to you, do you even so to
them’).
d) Statutes, secular and ecclesiastical, were to be rejected totally if shown to be contrary to
natural law.

viii) ST.THOMAS AQUINAS (1225-74)

The writings of Aquinas on law, recorded largely in the Summa Theologica, Part II (c 1266), have
dominated the thinking of Catholic jurists for centuries.
The contemporary emergence of the neo-Scholastic movement testifies to the enduring
influence of the remarkable synthesis of law achieved by Aquinas.
Fundamental to that synthesis is a set of precisely-enunciated beliefs.
God is the highest ‘good’ and from him all things emerge.
The order of nature which we can observe and analyze is God’s creation, and, because order
presupposes reason, there is some transcendent reason behind the creation.
The following key concepts are associated with Aquinas

CONCEPT ANALYSIS
Law and Divine Reason Law in all its manifestations flows ultimately from Divine Reason.
Aquinas argued:
‘Law is a rule and measure of acts, whereby man is induced to act or is restrained
from acting… Now the rule and measure of human acts is the reason, which is the
first principle of human acts…Consequently it follows that law is something
pertaining to reason.’
Man’s laws are ordinances ‘of reason for the common good made by him
who has the care of the community, and promulgated’.
‘The natural law is nothing else than the rational creature’s participation in
the eternal law… Human law falls short of the eternal law.’
Four-Fold Classification Law may be categorized according to the following scheme.
of Law 1. Lex aeterna (the eternal law). This is God’s rational direction of all created
things. All things are ruled, therefore, by this law; unreasoning things must
obey it, but man, who has free will, has the capacity to disobey. The eternal
law in its totality is known to God only, but some blessed persons may
perceive it in its full truth. The broad, general principles that mirror God’s
intentions for mankind comprise the natural law.

2. Lex divina (the Divine law), as revealed in the Scriptures. Although not
identical with natural law, it is not contrary to it. Divine revelation—God’s
law—overcomes the limitations of the law known through human reason,
and provides a guide for man’s reason, allowing his nature to be perfected
by Divine grace.
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3. Lex humana (the human law) involves particular uses of the natural law (as
in legislation by States). Human law which conforms to the law of reason
(‘the reason of divine wisdom’) must conform to the law of God.

4. Lex naturalis (the natural law). Because man possesses God given reason he
may share in Divine reason and derive from it a natural inclination to such
actions and ends as are fitting. The natural law results from man’s
participation in the workings of the cosmic law.

Natural law teaches us that precepts which emerge from man’s exercise of his reason
should include ‘seek good and avoid evil’.
When law is not law Aquinas argued that, in the light of ‘natural principles’, laws framed by men
are either just or unjust.
A law is not law merely because it is decreed by a Sovereign.
Where a law has the appropriate moral dimension and is ordained ‘to the
common good’, it is a ‘just law’.
Hence, where it conforms to natural law it is just.
Unjust Laws Laws may be unjust in two ways:
1. A law which is contrary to human good, either in respect of its form or end, is
no law at all: it cannot bind in conscience. It might be temporarily obeyed,
however, ‘in order to avoid scandal or disturbance, for which cause a man
should even yield his right’.

2. A law which is opposed to the Divine good, such as the law of a tyrant
‘inducing to idolatry’ (and, therefore, a violation of the natural law), must be
disregarded, because it is better to obey God than man.

Significance of Aquinas View on Natural Law

Natural law is viewed by Aquinas as part of a wide system of phenomena revealed by the light of
Catholic doctrine.
It is a source of general principles rather than detailed, day-to-day rules.
Essentially it demands ‘the elevation of human reason’: God’s purposes may be discerned in
part by reason.
God’s law is ‘the reason of his wisdom’, and human laws and institutions are best-founded when
built upon reason.
However, not all Catholic scholars in the time of Aquinas accepted his conclusions.

Neo-Scholasticism and the natural law

Today’s neo-Scholastic movement in the field of natural law is concerned with the further
development and adaptation of the teachings of Aquinas on law.
It is important to note that not all members of this movement accept the theology of Aquinas:
thus, Adler (b 1902), a prominent American advocate of ‘a contemporary natural law’, and a
non-Catholic, notes six widely-held principles derived directly from Aquinas, which have unusual
relevance for law today:
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1. Government-made laws do not constitute the sole directions of human conduct which ought to
apply to persons within society. There can be discovered rules and principles with application to
all persons in all types of society.

2. General principles of conduct exist outside man-made rules of law.

3. These principles will emerge through man’s exercise of his reason.

4. General principles, resulting from man’s reason, should be the source of all particular rules of
conduct. These general principles can provide an overall standard by which the rules of law may
be judged.

3. SECULARIZATION OF NATURAL LAW

Under the influence of Reformation or Renaissance in Europe, the religious clout of the Roman
Catholic Church waned.
The direct implication of this was the Catholic Church’s loss of monopoly of thought.
Protestant theories bloomed.
Their main remit was to develop the theory of natural law independent of the explanation
thereon offered or paraded by the Papacy.
The persistence is combining religion (and by implication morality) with law when considering
the essential requirements for a legitimate legal system meant that the scope of the subject
widened as the centuries passed.
A few of the more influential writers who had things to say about natural law and related
philosophy in the 16th and 18th Century include:

ix) HUGO GROTIUS (1583-1645)-(Rationalism and Natural Law)

Grotius was a Dutch statesman and jurist.
The secularization of natural law is usually held to begin with Grotius.
He is said to have inaugurated a new, modern era in natural law thinking by his assertion that
natural law would subsist even if God did not exist.
He separated natural law from its narrow theological basis.
The universe was for him dominated by a rational law of nature.
The natural law –immutable (so that God himself could not change it) and intelligible was “a
dictate of right reason which points out that an act, according as it is or is not in conformity with
rational nature, has in it quality of moral baseness or moral necessity.”
The following are key points about Grotius concept of natural law
a) The law of nature would exist even if it were to be conceded “that there is no God or that the
affairs of men are of no concern to him”. The natural law is founded, therefore, on reason alone.
b) The law of nature follows from man’s essential nature.
c) There are two methods of proving whether something is in accordance with the law of nature
i) Proof a priori: consists in demonstrating the necessary agreement or disagreement of
anything with a rational or social nature”.
ii) Proof a posteriori: consists in concluding if not with absolute assurance, at least with
probability,that,that is according to the law of nature which is believed to be such among all
nations, or among all those that are more advanced in civilization”.
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Finnis believe that the “Standard Reading” of Grotius is misconceived.

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He argues that what Grotius is claiming is that what is right or wrong depends on the nature of
things and not on a decree of God, but the normative significance of moral rightness depends
fundamentally upon there being a decree expressing God’s will that the right be done”.
Grotius is not expelling God from the doctrine of natural law. He is saying that “due and undue
acts are therefore understood to be necessarily enjoined or forbidden by God”.
The significance of Grotius’s thought is in a shift of emphasis towards the natural reason of man.
Grotius’s main concern was to establish a system of international law to regulate the affairs and
warfare of the raising nation state.
A precondition of such a system is stable, orderly Government within nations. He saw
government as resting on social contract, people surrendering their freedom for security. He
advocates that they should lack the right of repudiating the sovereign, however unjust the laws
he makes

x) PUFENDORF & SPINOZA (Human Nature and Natural Law)

The German jurist, Pufendorf, moved away from the approach to natural law associated with
medieval theology.
For him, natural law was based on the duality of human nature. He also believed in International
Law.
Man’s incapacity and his sociability are in conflict and the resulting struggle affects the
significance of natural law; aggression and self-interest are the background to the workings of
man-made law
The following are a summary of Pufendorf concept
a) The two fundamental principles of the natural law are as follows: first that a man should act
so as to disturb the society of which he is a part.
b) Where a man acts in conformity with the law of nature his happiness is thereby increased.
c) So as to ensure their mutual safety, men enter into a pact. By a further pact they allow a
ruler (or government) to ensure their security in exchange for their obedience, the ruler is
bound by natural law, he can be resisted should he become an enemy of his country.
On the other hand the Dutch Philosopher Spinoza, asserted that natural law as it applies to man
is not based on true reason; it reflects a general law of nature by which man’s behavior is
determined.
The following are a summary of Spinoza concept:
a) The rules of the law of nature can be deduced from an examination of man’s actual nature.
b) Man’s nature affected by his exercise of power. Every person possesses as much right as he
possesses power.
c) Reason is of great importance in man’s life. Only the man who lives in accordance with
reason is truly free. And that society is most free in which laws are based on reason.
(Democracy according to Spinoza is “the most natural of all forms of government.)
d) The driving power of reason forces men to live together in communities in which peace is
secured for those who obey the government. Liberty should be the highest aim of
government.

xi) KANT (1724-1804)

Kant was one of the world’s greatest development from and contrast with classical and religious
natural lawyers stating that:
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a) The only original right that belongs to man by virtue of his humanity is freedom i.e not being
restricted by the will of any other person.
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c) To acquire and own property there should be general consent (in contrast with Locke who
thought that ownership of a vacant property could be acquired by mixing one’s labour with
it).
Kant was much exercised by ethical ideas, believing that actions should be dictated by a sense of
duty guided by reason; leading to two imperatives, the;
a) Hypothetical imperative: where the action taken leads to a specific end and objective
b) Categorical imperative: which is the basis of human morality and which should therefore
inform the law (Imperative means that it is a command or instruction and categorical means
that there can be no exceptions or ways of avoiding the command).
The imperative as addressed to the individual trying to decide on proper behavior is:
a) Act as if the maxim of your action were to become through your will a general (or universal)
law of nature’s
b) Thus the means can never justify the end.
c) The right thing to do is one’s moral duty because it is one’s moral duty, not because one
thinks it is the right or most enjoyable thing to do.

xii) HOBBES (1588-1679) (SOCIAL CONTRACT)

His work is found in the Leviathan 1651.
Both Hobbes and Locke lived through periods of constitutional upheaval, precipitated by the
conflicts between Parliament and a monarch who claimed that ‘it is seditious in subjects to
dispute what a king may do in the height of his power’.
Both propounded unpopular views; both were obliged to flee from England.
Their investigation of the legal basis of the bonds between ruler and ruled took place against a
background of civil unrest, violence and its aftermath.
The legal theories associated with Hobbes and Locke represent much more than scholarly
ratiocination; they may be interpreted as deep personal reactions to social strife and as
attempts to stress the significance of consensus in civil government so as to avoid conflict.
The following is a summary of Hobbes Concept

CONCEPT ANALYSIS
The ‘Social Contract’ Theories suggesting a compact between rulers and ruled may be found in
myth political and legal thought over the centuries.
Hobbes, Locke and Rousseau were among those who developed the
theory of a Social Contract. Its essential features are as follows:
1. In ‘primeval times’, individuals were born into a ‘state of nature’ which
was generally anarchic.
2. Man’s natural reason and his innate need to live within society led him to
create a society by contracting with others.
3. The essence of the Social Contract was the surrender of some rights and
powers to a Sovereign in the expectation that he would safeguard
individuals and protect them against oppression.
4. The Sovereign to whom powers were transferred did not necessarily
consider himself as a party to a contract.
Hobbes and the Social Basic to Hobbes’ philosophy was his belief that man is dominated by the
Contract instinct of self-preservation.
Persistence of this instinct is evidenced by his reactions to the primeval
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conditions of life which led to an intensification of his efforts to ensure

survival.
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which all were equal and all had the right to act so as to ensure survival.
But strife was rarely absent.
‘The most frequent reason why men desire to hurt each other, ariseth
hence, that many men at the same time have an appetite to the same
thing; which yet very often they can neither enjoy in common, nor yet
divide it; whence it follows that the strongest must have it, and who is
strongest must be decided by the sword’: De Cive (1642).
The continuous clash of wills produced a war ‘of all against all’; events
which assisted survival were ‘good’; those which threatened survival
were ‘evil’.
There could be no ordered community in these circumstances, because
‘there was no society, continual fear and danger of violent death’, and
man’s life was ‘solitary, poor, nasty, brutish and short’.
It became obvious that individual survival might be more assured in
peaceful conditions.
The Compact Eventually, men, wishing to end an intolerable state of affairs, were ready
to make a compact among themselves.
Each would surrender his right of governing himself to some person or
assembly, on the vital understanding that others would surrender similar
rights in the same manner.
The Sovereign authority would have an absolute power to govern; in no
sense was the Sovereign a party to the contract, nor was he subject to
those who had contracted among themselves.
The Common-Wealth The essence of the ‘Common-Wealth’ thus created was, in Hobbes’ words
(Leviathan (1651)):

‘One person, of whose acts a great multitude, by mutual covenants one with
another, have made themselves everyone the author, to the end he may use the
strength and means of them all, as he shall think expedient, for their peace and
common defence. And he that carrieth this person is called Sovereign, and said to
have Sovereign Power; and everyone besides, his subject.’

(Note that the name ‘Leviathan’ appears in Job, 12, where it is used to
signify a monster.)
Legal implications Total obedience to an absolute Sovereign power is the essence of
of Hobbes’ doctrine Hobbes’ version of the Social Contract.
Law is, in reality, the command of that Sovereign power and requires an
unchallenged ability to enforce it. Remove that ability and a covenant
becomes mere words.
‘Good law’ should not be seen as the equivalent of ‘just law’, because a
law made by the Sovereign cannot be unjust.
When the Sovereign enacts a law he does so as though all his subjects
were making it collectively; to enact that upon which his subjects have
agreed cannot be unjust.
To obey the Sovereign is a prerequisite of justice. Law is the Sovereign’s
command, and justice requires obedience to the law if the subjects’
wishes are to be carried out.
‘Unjust law’ is, therefore, a contradiction in terms.
Bad Law ‘Bad law’ can exist. Where, in making a law, the Sovereign fails to exercise
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the protective function on the basis of which the people have promised
submission, that law may be considered ‘bad’, in that it is ‘outside’ the
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common peace and safety which were the objectives of the covenant are
the touchstones of the laws made by the Sovereign; if they are placed in
peril then the very purposes of the covenant are challenged.
Hobbes is essentially an authoritarian and a supporter of absolute
government. The fear of anarchy and the social violence which may
follow on from sustained opposition to the central authority runs through
his writings.
He had witnessed the turmoil which attended the breaking of an
obdurate monarch by a resolute Parliament; he was aware of the growing
influence within the Parliamentary army of ‘levelling’ antiauthoritarian
doctrines and he had heard powerful calls for an initiative to revive ‘the
Good Old Cause’.
He was fearful of the likely consequences. Hence his attitude to
disobedience and rebellion stemmed from the following principles:
1. Even though a law be considered unsatisfactory, this is not a matter for
the people to judge lightly. It is not in itself a justification for general
disobedience.
2. The Sovereign alone possesses the power to judge what needs to be done
in the interests of his subjects; he must act on the basis of an exercise of
that power.
3. To question the judgment of the Sovereign is to revert to the anarchy of
the ‘state of nature’ from which men had wished to be delivered. The
duty not to question is part of the price to be paid for social peace.
4. Unsatisfactory laws are a matter between the Sovereign and his God, not
between him and his subjects. Hence, if Christians perceived the actions
of their Sovereign as contrary to Divine injunctions, their obedience to
the Sovereign must not falter. The church enjoyed the legal status of any
other corporation, and its subordination to the State was a necessary
consequence of the principle of total submission which was required
from all within the Sovereign’s realm. There was to be no special privilege
accorded to the church and its members.

Hobbes makes clear, however, that when it has become obvious that a
Sovereign can no longer exert the power necessary to maintain the peace
and to protect his subjects’ safety, or when he has behaved in a manner
which suggests unequivocally that his activities constitute a clear attempt
to destroy his subjects’ rights of self-preservation, then the duty of
obedience ceases.
‘The obligation of subjects to the Sovereign is understood to last as long,
and no longer, than the power lasteth by which he is able to protect
them’: Leviathan. This is the sole condition relating to the Sovereign’s
deployment of absolute power; it constitutes a vital check upon the
exercise of absolute authority by one who acts in opposition to the
demands of the common good.

xiii) LOCKE –TWO TREATISE ON GOVERNMENT

Locke’s life overlapped that of Hobbes. Whereas Hobbes had experienced the particular turmoil
of the Civil War, and had propounded a theory based upon a model of absolutist rule, Locke was
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affected specifically by the events which culminated in the ‘Glorious Revolution’ of 1688, ending
the Stuart dynasty, and with it any lingering beliefs in that dynasty’s claim to rule by Divine right.
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Locke articulated, in opposition to Hobbes, a theory based upon subjects’ individual and
inalienable rights.
He developed an individualistic interpretation of the Social Contract based upon the following
principles:
CONCEPT ANALYSIS
Government as a trust for Hobbes has advocated a type of absolutism; in contrast; Locke, who
the benefit of man has experienced the practice of absolutism under the Staurts, urged
that the power of the state “can never be supposed to extend further
than the common good”.
Political power involved “the right of making laws…and of employing
the force of the community in the execution of such laws and in the
defense of the commonwealth from foreign injury and all this only for
the public good”
a) Locke believed that originally man lived in a state of nature. It was
not, as Hobbes thought, a state in which mutual violence was
dominant; it was a “state of liberty, not of licence”.In that state of
nature, man realized that, since all were equal, none should be
harmed. But that state involved a lack of security where each man
was a judge in his own cause.
b) So as to end the insecurity, men entered into a “a social
contract”. It comprised a pactum unionis, whereby men agree “to
unite in one political society” and a pactum subjectionis, whereby
majority gives power to a government which will protect the
individual.
c) The contract does not involve total subjection to the government
(in contrast with Hobbes Theory).” The law of nature “stands for
Locke as “an eternal rule made to all men, legislators as well as
others.]”.
d) Where the legislature forgets its trust, it can be replaced.
Limits to the power of the The legislature, although supreme, is limited in its powers
state a) It cannot rule in a purely arbitrary way.” It is a power that hath no
other end but preservation, and therefore can never have a right to
destry, enslave or designedly to improvish the subjects”.
b) It cannot transfer the power of making laws to any other persons.
c) It cannot deprive a man of his property without his consent.
d) It is bound “to dispense justice and decides the rights of the subjects
by promulgating standing laws”.
Division of Power Locke proposed a threefold “division of powers” within the state-a
legislative power (to create rules); an executive power (to enforce the
rules);a federative power (to control the state’s external relations).
Natural Law According to For Locke, natural law was superior to positive law; it was immutable
Locke and bound all within the state. It was under the natural law that men
should enjoy their inborn rights to “life, liberty and estate”.
Man’s natural rights were to be protected by the “social contract”.
The most fundamental aspects of his natural law related to the
preservation of the commonwealth and its individual members;
preservation of life was one of man’s inalienable rights”.
Rules and Reason Locke argued that the moral rules which should bind the subjects within a state
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could be discovered by arguments based on reason.”From self-evident

proposition, by necessary consequences, as uncontestable as those in
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Legal implications Locke is perfectly clear as to the implications of his advocacy of

of Locke’s doctrine government with limited powers. Government, for him, has no other
end but preservation, ‘and therefore can never have a right to
destroy, enslave, or designedly to impoverish the subjects’.
The legal implications of this doctrine are far-reaching. It is the very
right to enforce ‘nature’s laws’ which is surrendered to the body
politic—and nothing more.
The enforcement of those laws demands from the government the
activities of an ‘umpire’, that is, ‘a judge on earth’ with the
appropriate powers to determine controversies and redress injuries.

xiv) WOLFF (Rationalism and Law)

Wolff was a German philosopher and mathematician, advocated a doctrine of innate moral an
intellectual properties.
The power of reason could be used to attain and explain truths incapable of attainment by the
senses alone.
All phenomena, including the law, had adequate knowable reasons for their occurrence.
He opined
a) Rational, natural law could be explained by duty. Law exists on the basis of moral obligation
which precedes it and in which it has taken root.
b) Because there are innate human duties, there exists innate human rights and they are the
same for all men (who are, therefore equal) because they are the very consequences of
human nature.
c) Although men are, by nature,free,they can perform their duty of self-perfection-the
fundamental natural law-only under conditions of security and peace to be provided by a
benevolent ruler who is not bound to them by any obligation.
d) Greater liberty results from obedience to the natural law and therefore to the ruler.

xv) MONTESQUIEU (The Spirit of the Laws)

Montesquieu a French political Philosopher wrote of laws as “the necessary relations arising
from the nature of things”.
Law in general was no more than human reason; it was oriented to justice and should be judged
by it.
Further the essence of justice was not to be found exclusively within the positive law; the “just”
and the “unjust” were concepts which preceded the creation of positive law.
He opined that:
a) Natural law pre-dated the establishment of society and in general, was superior to the laws
of religion and the state.
b) The law and justice of a particular people, argued Montesquieu, are not unchangeable, they
are determined by variables such environment.
c) The maintenance of a people’s liberty-the true purpose of political association-demanded
the prevention of the accumulation of power in a few hands. Hence there should be a
separation of powers (legislative, executive and judicial) and balances and checks were
essential.
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d) The form in which the laws should be promulgated is important. Their style should be
simple, avoiding rhetoric and hypothesis; they ought not to be argumentative; they ought
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not to shock reason or feelings of justice; they should be subtle and should take into
account the simple reasoning of the average man.

xvi) ROUSSEAU (1712-1778)

Rousseau (1712–1778) argued for the natural goodness of human nature. Man is born innocent
and good, free and equal, but the corrupting powers of civilization are responsible for the evil
situation in which he finds himself.
The foundation of the State is a Social Contract made by citizens who enter into it on the basis
of their inalienable rights to freedom and equality.
Democracy thrives when the general will prevails. The people’s right of sovereignty must never
be surrendered.

4. DECLINE OF NATURAL LAW

Against the background of the emphasis on scientific approach to learning, an approach that
favoured rationalist and secularist perspectives to the study of human phenomena, the
influence of natural law dwindled in the 18th and 19th centuries.
There was an increasing assault on natural law for its reliance on metaphysics and idealism.
For example, David Hume (1711-1776) criticized natural law for attempting to derive an ‘ought’
from an ‘is.’ The fall of natural law incidentally saw the rise of positivism with the likes of John
Austin and Jeremy Bentham insisting on the separation between positive law and morality.

5. RE-BIRTH OF NATURAL LAW (THE ENLIGHTMENT PERIOD)

However, the 20th century witnessed a revival or rebirth of natural law doctrines because of a
combination of factors, representing the failure, weakness or excesses of positivist doctrines.
We shall consider some of these briefly:

a) Horror of Second World War

The Second World War, fought from 1939-1945, was prosecuted under the inspiration of
extreme positivism where Nazi Germany was, in vindication of Hegel, deified the State and
where, in the mould of John Austin, Hitler became the uncommanded commander to whom
obedience was compulsorily offered.
It was, therefore, no surprise that the war exterminated six million Jews from the face of the
earth. The horror of the war jolted the international community from its stupor.
Thus, the Preamble to the UN Charter 1945 provides, in part, that the UN was determined to
save succeeding generations from the scourge of war, which twice in our lifetime has brought
untold sorrow to mankind.
Coming on the heels of the adoption of the UN Charter was the Universal Declaration of Human
Rights (UDHR) 1948, and the Covenants – the International Covenant on Civil and Political Rights
1966 and the International Covenant on Economic, Social and Cultural Rights 1966, etc. Since
1945 till date, the rebirth of natural law has manifested in a glut of human rights instruments at
both international and regional levels and in domestic legal systems.
The recurrent refrain in all these instruments and laws is the protection of human rights of
persons and the restraint of the freedom of action of States. In other words, the natural law
regime has succeeded in institutionalizing a bulwark against the excesses of positivism in the
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governance of peoples across the globe.

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b) Human Rights Violations

This is allied to the observation made on the Second World War.
Prior to 1945, human rights were the reserve domain of each sovereign State.
It was the norm for States to disregard or suppress the human rights of its citizens and other
people. No external interference was tolerated.
Thus, Germany felt insulted when the League of Nations sought to know why Germany was
maltreating its Jewish minority, and terminated its membership of the League in 1933.
But since 1945, the tide has turned against violators. Apart from international, regional and
domestic instruments, there are mechanisms put in place to enforce or to cause the
enforcement of human rights, and there are avenues for victims of violations to vindicate their
rights.

c) Scientific Excesses
The necessity for the revival of natural law has come into sharper focus with the excesses that
accompanied scientific progress and advance.
Science has come to ease the hardship hitherto experienced by humanity in daily existence. It is
a welcome development. However, there have been instances where pursuit of scientific inquiry
has been geared immediately or ultimately towards harming human race.
Such activities include developing biological and chemical weapons, weapons of mass
destruction, etc. Recall that US invasion of Iraq in 2003 was predicated on the search for
weapons of mass destruction.
And the current face-off between Iran and the international community or the critical members
of the international community is because Iran is highly suspected of developing atomic
weapons.
Other issues that have triggered the invocation of natural law include human cloning (remember
dolly – sheep – the first cloned mammal born in 1996), homosexuality, lesbianism, same-sex
marriage, euthanasia, etc.

6. RESTATEMENT OF NATURAL LAW THEORY (MODERN AND POST MODERN NATURAL LAW
THEORIST)-19th and 20th Century.

The discourse on natural law would be probably incomplete without a consideration of the
restatement of natural law by modern natural law theorists, for example, John Finnis (1940- ).
The modern natural lawyers focus on the common good without which the society will be in
disarray.
In spite of attacks on its theoretical base, natural law did not disappear as a juristic concept.
In the church for example the teachings of Aquinas remained the basis of study and were used
to provide the theoretical foundation for the neo-Thomist school.
Natural law may have diminished in significance for a period of time; it has never-perished,
however, as is evident in the 20th century there was a revival.
The reasons for revival include:
a) Revolution Breeds Reaction: The revolutionary scientific theories of the 19th and early 20th
century brought in their wake a considerable wave of reaction. There was dissatisfaction
with the picture of a “mechanistic” universe. There was a questioning of materialism and of
the social theories that grew from the concept of natural selection. In these circumstances
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the search for values based on idealist principles was resumed and intensified.
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b) The Positivist and Historical Schools: These schools of jurisprudence were seen by many
jurists and social scientists as providing inadequate answers to questions relating to
contemporary values such as justice
c) First World Wars: As social stability was shattered by the First World War so the need to re-
establish standards on a basis of eternal values was considered by some as providing an
urgent stimulus to the task of establishing norms transcending human will which could be
used to evaluate man-made rules of law.
d) Second World War: The experience of the WWII in which barbarism had gone hand in hand
with well-ordered legal systems led many people to question relativism in politics and law.
Thus the German jurist Radbruch who had experienced and understood the perversion of
law in his country, stated unequivocally;”where justice is not even striven for, where
equality which is the core of justice is constantly, denied in the enactment of positive law,
there the law is not only “unjust law” but lacks the nature of law altogether”.

CHARACTERISTICS OF MODERN NATURAL LAW THEORIES

There is a considerable difference between some 20th century natural law theories and those of
earlier times.
Some of the important characteristics of contemporary natural law theory are as follows:
a) Much natural law theory of today rests on moral idealism, but it is not always couched in
terms of the eternal verities, outside the Catholic neo-Thomist school may be found natural
law proponents who deny the need for eternal values, but who, never the less urge a law
based securely upon the concepts of morality.
b) Some natural law theory of today is seen as based on “law with a changing content” so that
it does not rest on principles of immutability.
c) Scientific advances in biology and anthropology in particular have affected jurisprudential
thinking so that the very concept of “nature” held by many of today’s jurists is qualitatively
different from that which was accepted in earlier centuries.
d) Justice is emphasized in much contemporary natural law theory as an indispensable
standard for the evaluation of law.
e) Some natural law theories of today have tended to separate themselves from their parent
doctrines.e.g Neo-Hegelian or Neo-Kant jurist have revived the doctrines without the
dialectic.
f) Social experiences have been evaluated as a basis for a constructive search for legal criteria.
The attempts to define human rights internationally in characters and programmes rest on
social experience as interpreted in the light of value judgments.
g) One point of view is that during the course of the 20th century aspects and precepts of
natural law have developed into human rights, a process that can also be traced back to the
18th century American and French Revolutions.(See Locke, Blackstone and others)

DISTINCTION BETWEEN NATURAL LAW AND LEGAL POSITIVISM

The distinction between natural law and legal positivism varies according to the fervency of
belief of particular writers but the following are common:
a) At one end of the spectrum are those who seem to be unable to recognize that anything
other than natural law is conceivable.
b) At the other end are those who refuse to recognize a need for any moral or religious input
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to validate a secular legal system, if it is legitimately installed and operated.

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MODERN AND NEO-MODERN SCHOLARS

Natural law jurists of the twentieth century include some who call for a modification of early
doctrines so as to take into account problems which could not have been envisaged in earlier
centuries.
The modifications would allow the development of a ‘natural law with a changing content’.
In the 20th century there was a revival of interest in natural laws, which was mainly influenced
by the writings of the following scholars

xvii) STAMMLER (1856-1938)-Natural Law With a Variable Content

Stammler suggests that each era requires its own ‘right law’ based upon justice. The task of the
jurist is to assist in the appraisal of the positive law in relation to the demands of objective
justice.
Man is to be treated as an end in himself, and the law must ensure that he does not become the
object of an arbitrary exercise of will.
Freedom, and the expression of the community’s collective will, should be based on natural law
with a variable content.
Two principles will result from investigation of the application of natural law:
1. The principle of respect. No act of an individual should be subjected to another’s whim.
2. The principle of participation. No one may be excluded from the community in arbitrary fashion.

xviii) GUSTAV RADBRUCH (1878-1949)-Back to Transcendent Law

He abandoned his belief in legal relativism following his experiences during the era of the
German dictatorship and embraced the concept of a law ‘above statute’.
His views may be summarized as follows:
1. To equate law and power is to render the community defenseless against a tyranny.
2. Only what is law benefits the people.
3. Unjust laws ought not to be obeyed.
4. Some laws are so socially detrimental that their very character as laws ought to be denied.
5. There are principles of law stronger than any statute—these are the principles of natural law or
‘the law of reason’.
Radbruch took the line that it is better to decide that “evil” legislation cannot be law; in turn
making it clear to officials that superior orders can not be a defence or justification.
His conclusion is summarized by what came to be known as the Radbruch’sche Formel OR
Radbruch Formula; which states that statute law must be disregarded by a judge where it:
a) Is incompatible with the requirements of justice to an extent that it becomes intolerable.
b) Was clearly designed in a way that deliberately negates the fairness and equality that is
central to all justice.

xix) LON FULLER (1902-78)- Morality of Law

He occupies some part of the middle ground between pure legal positivism and natural law.
His work came as a result of opposing legal positivism and criticizing Kelsen,Hart and Dworkin
In his book Morality of Law (1964) he is advocating a spicies of “secular natural law”.
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Engaging in a debate with Hart discussing the relationship between law and morality with regard
to the
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b) Meaning of legal language

c) Question whether wicked and immoral law could be taken as law
He rejected Christian doctrines of Natural law as well as the 17th and 18th Century rationalist
doctrines of natural rights.
He saw one aim common to all schools namely that discovering social order which will enable
men to attain a satisfactory life in common.
Fuller argues that after WWII it was legitimate for courts to decide that Nazi law was in some
respects illegitimate because morality cannot be completely divorced from the content and
operation of a legal system.
Thus fuller sees the need for a connection between law and morality by means of reason.
He opines the need for a legal system is to produce rules for governing people’s behavior that
are consistent with the moral objectives of society which leads to what he calls “the inner
morality of law”, internal to the system because they are a necessary intrinsic application of
morality behind it.
His main contribution to legal theory was in understanding the procedural aspects of legal
systems. To him a legal aspect was a purposeful enterprise subjecting human conduct to
governance of rules.
He therefore argued that whatever its substantive purposes, certain procedural purposes had to
be acknowledged as goals if the system were to qualify as a system of law rather than a set of
institutions relying on force and arbitrary power.
His contribution may be seen as insisting on procedural consistency and predictability of the
law.
It is an aspect of the concept of rule of law.
He therefore argued that positive la and other man made laws required procedurally the
following in order to be valid:
1. That they be sufficiently general
2. Publicly promulgated
3. Sufficiently prospective (must look far ahead as possible)
4. Clear and intelligible
5. Free of contradiction
6. Sufficiently constant through time so that people can order their relations
accordingly.(Precedent)
7. Not require the impossible
8. Be administered in away sufficiently congruent with their wording so that people can abide
with them

xx) JOHN FINNIS (1940)-Universality of Basic Values

Finnis is a British lawyer and philosopher who is desirous of investigating the utility of natural
law in contemporary society.
According to Finnis, natural law is a set of principles of practical reasonableness to be utilized in
ordering human life and human community in the process of creating optimal conditions for
humans to attain the objective goods.
Finnis’ restatement proceeds from a denial of the criticism of positivists that natural law
theorists seek to derive an ought from an is.
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He de-emphasized the metaphysical character of natural law, perhaps, because of the severe
criticisms natural law has suffered in the hands of positive law proponents.
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He said that the normative conclusion of natural lawyers was not based on the observation of
human behaviour or nature but they resulted from the reflective grasp of what is evidently good
for all human beings.
He contends that objective knowledge of what is good is possible owing to the existence of
objective goods which he calls ‘basic forms of human flourishing’.
Finnis calls for a rationally-based law which will recognize the basic values of human existence
(‘human goods’).
These goods can be secured only through appropriate laws and legal procedures.
‘Human goods’ are ‘the forms of human flourishing’ necessary for the full development of
individuals.
They are as follows:
1. Life
2. Knowledge
3. Play
4. Aesthetic experience
5. Sociability
6. Practical reasonableness
7. Religion.
The concept of ‘practical reasonableness’ involves principles which stem from classical natural
law doctrine.
Thus: the individual must follow a ‘rational life plan’; he must pay equal regard to each basic
human good; he must recognize that others will participate in attaining these goods; he ought
not to waste his opportunities by inefficient action; he must not act contrary to his conscience.
It is an attempt to answer Aristotle question. And it is combined with the nine “basic
requirements of practical reasonableness”.
1. The active pursuit of goods
2. A coherent plan of life
3. No arbitrary preference among values
4. No arbitrary preference among persons
5. Detachment and commitment
6. The (limited) relevance of consequences, efficiency within reason.
7. Respect for very basic value in every act.
8. The requirements of the common good
9. Following one’s conscience.

CRITIQUES OF NATURAL LAW THEORY (MOSTLY BY POSITIVIST)

1. HUME (1711-1776)
2. BENTHAM (1748-1831)
3. CARNAP (1891-1970) & AYER (1910-89)
4. ROSS (1899-1979)
In summary
Philosophers, such as Hume, criticised the unreal basis of natural law and drew attention to its
confusion of ‘ought’ and ‘is’.
Bentham attacked natural law as metaphysical nonsense.
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Logical positivists, such as Carnap, argued that the very propositions of the natural law are
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incapable of verification and are, therefore, worthless.

Ross, the Danish jurist, argued that the speculation upon which natural law is built is of no value.

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The term ‘natural law’ has been used as an umbrella for many different doctrines, so that it is
difficult to attach a meaning to it.
Natural law seems to depend upon intuition and that is not an adequate basis for a theoretical
construct.

But generally The doctrine of natural law has been criticized for several reasons including the
following:

(a) Reliance on Metaphysical Validation

Natural law is a law built around idealism. Knowledge is acquired by means of metaphysical or
transcendental inquiry.
In the Age of Science, or Renaissance, many philosophers severely criticized the natural law
doctrine for its inability to prove or demonstrate the truth of its claims.
In other words, natural law was condemned for its unscientific methodology. For example,
David Hume said that natural law is real only in the sense that some individuals entertain the
feeling that it exists. He believed it was a figment of the imagination of fertile minds. He
contended further that its truths cannot be asserted or demonstrated meaningfully, and
concluded that natural law attempts to derive an ‘ought’ from an ‘is.’
Moreover, natural law was not spared by the proponent of utilitarianism, Jeremy Bentham. In
fact, he developed his theory upon the pedestal of denigrated natural law.
He had described natural law as nothing but a phrase and natural rights as nonsense upon stilts.
He had argued, inter alia, that the spread of natural law would undermine the fabric of
sovereignty and fan the embers of rebellion.
However, note that although Bentham’s utilitarianism was geared towards the satisfaction of
the happiness of the greatest number, his felicific calculus (for measuring pain and pleasure) has
been said to be unscientific and his utilitarian theory has even been criticized for belonging
more to the family of natural law than to that of positive law.
According to Schumpeter, utilitarianism has about it an aura of the ‘universal and immutable’
values associated with classical natural law.

(b) Proviso to Universality

Danish jurist, Alf Ross (1899-1979) mounted a virulent attack on natural law doctrine in his On
Law and Justice (1958).
According to him, the metaphysical speculation underlying natural law is totally beyond the
reach of verification. He said that the doctrines of natural law are neither eternal nor
immutable.
To him, natural law has been utilized to defend every conceivable kind of demand, slavery and
fraternity. It is in this light that Friedmann notes that ‘natural law has at different times been
used to support almost any ideology’. Of course, recall that Ross had said of natural law as
follows: “Like a harlot, natural law is at the disposal of everyone. The ideology does not exist
which cannot be defined by an appeal to the law of nature”.
The observation by Friedmann on the flexibility of natural law ancient philosophers have made
us to believe is eternal, unchanging and everlasting is made manifest in a survey of some ancient
civilizations (such as Egypt, India, Mesopotamia, China, Greece and Rome) where inequality and
slavery were accommodated as part and parcel of the doctrine of natural law.
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Lastly, Ross argued that the metaphysical postulates of natural law are no more than
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‘constructions to buttress emotional attitudes and the fulfillment of certain needs.’

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(c) Diversity of Moral Opinions

We have said that natural law represents man’s participation or share in the workings of the
universe with the aid of his reasoning power.
We asserted that natural law is that small, still voice in a man’s heart, the conscience, the ‘small
god’ of a man. However, we realize the fact that man is different from man.
Because one person’s background, status, belief system, etc, is different from another’s, their
appreciation of or participation in natural law is bound to be different.
Therefore, there is no oneness of natural law. In other words, there is no unity within the family
of natural law. It is more or less a divided house since consensus is very unlikely.
But we should realize that there are some themes of natural law which (though few) would
ordinarily elicit same and universal response from all. John Finnis may have enumerated them in
his objective goods.

THE GREAT DEBATES

1. HART-DEVLIN DEBATE (LAW AND MORALITY)

a) Background
The question of the links between law and morality constitutes a matter of abiding interest for
jurisprudence.
Interest in the question was aroused during the period following the Second World War with the
growth of public concern for what was perceived as a decline in sexual morality.
The government responded by setting up a Commission to examine offences connected with
homosexuality and prostitution.
The Wolfenden Report 1957 polarized juristic opinion. The Report noted that there must remain
a realm of private morality and immorality which is not the law’s business.
Devlin (1905–1992) opposed the philosophy of the Report. Hart (1907–1992) attacked Devlin’s
approach and its implications.

b) Devlin’s Interrogatories and Replies

Devlin asked, and answered, three questions.
1. The first question: has society the right to pass judgment on moral matters? Devlin’s
answer was in the affirmative. There is a public morality reflecting shared opinions. If
the bonds of common thought are too far relaxed, society will suffer. There is,
therefore, a right to judge breaches of morality.
2. The second question: if society has the right to pass judgment, has it the right to use the
law to enforce it? Devlin’s answer is again in the affirmative. Society may take steps to
protect itself from disintegration. There can be no theoretical limit to the exercise of this
right.
3. The third question: ought society to use the weapon of the law in all cases, or only in
some, and on what principles? Devlin urges that the judgment of ‘the right-minded
man’be taken into account. There should be toleration, however, of the maximum
individual freedom that is consistent with society’s integrity.

c) Hart Responses
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The basis of Devlin’s axioms is unsound. There is no seamless web of morality which will be torn
beyond repair by individual sexual deviancy. Single breaches of morality do not necessarily
affect the integrity of society in its entirety.
Devlin’s attempt to equate the need to suppress subversion with the need to suppress sexual
immorality is, according to Hart, grotesque.
There is no proof that deviation from a moral code will lead to its utter destruction with harmful
effects on society in general.
Hart urges that consideration be given to the disproportionate misery which results for the
individual convicted for sexual misdemeanor.
Hart warns legislators of the dangers of using as a criterion for legislative action the disgust
produced by deviant behavior in the mind of the ‘right-thinking man’. This can lead to the
condoning of intolerance.
There is a special risk in a democracy, argues Hart that the majority may dictate how all should
live. We ought not to maximize the risk of this happening by adopting the populist approach
inherent in Devlin’s observations.

d) The Debate Continues

Devlin’s supporters continue to stress the need for the law to assist in the suppression of
intolerable vice.
Critics remind them of the assertion that he who tries to determine everything by law will
foment crime rather than lessen it.
Hart’s supporters urge that argument on these matters must continue. Critics remind them of
the need for the law to correspond with the community’s declared feelings and aspirations.

2. HART-FULLER DEBATE
a) Background of the debate

A discussion in the 1950s between Hart (b 1907) and Fuller (b 1902) concerning legal events in
Germany, following the Second World War, led to a debate in which some fundamental
differences between the advocates of legal positivism and the natural law were restated.
Hart was to argue that law is law even though it fails to satisfy the demands of morality.
Fuller maintained that a law divorced from morality ceases to be ‘law’.
The post-war legal system in Germany was designed deliberately so as to rid itself of all vestiges
of thought and procedures associated with the former regime. This was helped by the influence
of the German jurist, Radbruch, who had abandoned ‘legal relativism’ in favor of a move
towards the doctrines of natural law.
In 1949 the German courts sentenced a woman who had denounced her husband during the
war because of his criticism of Hitler. The woman pleaded that her action was ‘lawful’ under the
terms of a law then in force. The court ruled in 1949 that her action was contrary to the sound
conscience and sense of justice of decent human beings.

b) Hart Opens the debate

Although Hart was sympathetic to the attempts of the German legal system to cast aside all
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remnants of the dictatorship period, nevertheless, he argued, law remains law even though it
does not meet the requirements of morality.
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Whether a bad law (such as that allowing the denunciation of the husband) ought to be obeyed
is a significant, but entirely separate, question.

c) Fuller’s Response

Hart, Fuller claimed, was in error. A law must possess certain characteristics if it is to be
classified correctly as ‘law’.
There was nothing in the legal system of the dictatorship which remotely resembled true law.
Hart’s error arose from the general positivist position which demanded a separation of law from
questions of morality.

d) Hart and the minimum content of law

Hart responded by stressing his belief that ‘law’ and ‘morality’ were not interchangeable terms,
so that one should not impugn a law solely on the grounds of its lack of morality.
Hart suggested that the ‘human condition’ necessitated the creation of minimum rules designed
to protect persons, property and rights created by promises.
The ‘human condition’ revealed vulnerability, approximate equality, limited altruism, scarce
resources and a general, limited understanding and strength of will. It was the recognition of
these matters which formed the core of good sense in the doctrine of natural law.

e) Fuller Response

Fuller argued further that a legal system must aim at the subjection of human conduct to the
governance of rules.
Law must have its own ‘internal morality’. It must be more than the mere ad hoc settling of
disputes; it must not be retroactive; it must be intelligible, free from contradictions, must not
require the impossible and must produce congruence of its declared aims and the actions of
administrators.
The dictatorship in Germany had produced an essentially ‘lawless’ regime which had forfeited
any right to expect allegiance from its citizens.
Hart’s arguments illustrate the results of attempting to separate law from morality.

f) An inconclusive Debate

In spite of Hart’s nod in the direction of ‘the core of good sense’ in the natural law, the parties
to the debate remain widely separated.
For Hart it is the confusion of ‘law’ with ‘morality’ which blurs the fundamental issue: law
remains law until repealed or otherwise replaced. Fuller sees this as an inevitable, and
regrettable, result of positivist doctrine; for him man-made law which lacks an inner morality
has no claim to be recognized as ‘true law’.
It has been suggested that the inconclusive nature of the debate followed inevitably from a
failure to define terms such as ‘law’, ‘morality’, ‘lawlessness’.
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THE APPLICATION OF NATURAL LAW THEORY IN AFRICA TODAY

Natural law has seen many scholars and thus evolved over the years changing from its first
manifestation in the classical era through to its modern outlook.
These changes notwithstanding, the theory has endured and is still of some relevance as
discussed below:
1. Because the theory seeks universality and commonality in human law, values and
institutions across the globe, there is still a modicum of relevance if this is related to the
development of international standards (laws) under the auspices of UN in the fields of
human rights, environmental law which have been ratified by many African Countries.
2. Natural laws emphasizes the need for a legal system to have moral goals and moral values
.Though the definition of moral varies from place to place for different people, it is still
relevant in Africa to day. This relevance is reflected in the fact that a number of African
countries still retain in their legal system moralistic rules e.g. the penalization of acts like
homosexuality, bestiality, adultery etc.
3. The natural law concept of natural individual rights is also of relevance to the African
continent given the adoption of the concept in many African countries e.g. in Kenya and
Uganda the Bills of Rights in the constitution.
4. The social contract of natural law advances the concept of a representative democratic
system of governance widely used in Africa today making the theory relevant. Nevertheless
the existence of dictatorship, unfair election practices creating Pseudo-democracies waters
down this relevance.
5. More so Natural law assumes equality regardless of class, culture and state or national
difference. Kenya like most African countries in the Constitution disallows discrimination on
the grounds of tribe, age, sex, gender and religion.The EAC are geared to achieve unity and
equality.
6. Separation of powers is another trace of natural law is separation of powers. According to
John Locke and Montesquieu, the doctrine of separation of powers between the varies arms
of government i.e. Legislature, Judiciary and Executive.
7. Sovereignty: Next is sovereignty. Sovereignty originally propounded by Bodin belonged to
the State and, most important, to the symbol of the State such as the head of State,
president, prime minister, etc. But in its modern rendition, sovereignty now belongs to the
people.

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LECTURE 3: SATURDAY 5TH OCTOBER 2013- 8.00-11.00AM (LECTURE HALL B5)

TOPIC 3: THE POSITIVIST LAW THEORY

DEFINITION

Positivism refers to a system of philosophy that postulates that our knowledge of matter is
derived only from what we have experience of.
Knowledge is thus based on things that have been tested and verified by the senses rather than
metaphysical speculation or idealism.
Positivism entails the study of things as they are without regard to the social, political and
psychological background.

BACKGROUND

The early philosophical positivists, such as Hume and Comte, rejected metaphysics, believing
that explanations lacking reasoning related to number or experimental conclusions were mere
illusion.
The discovery of systematic laws was the aim of enquiry.
The logical positivists, such as Carnap and Ayer, examined the problems of language.
Sentences had literal significance if and only if they expressed that which was tautologous or
empirically verifiable.
Metaphysical assertions were meaningless.

METHODOLOGY

The positivist approach necessitates an objective investigation of the structure of the legal order
so as to reveal its foundation.
Functions are studied, analyzed and classified and legal concepts are constructed. Hence, the
legal positivist seeks to answer questions, such as:
a. What is the law?
b. What are its sources?
c. What are its functions in a given society?
d. What is the function of terms such as ‘ownership’, ‘possession’, in legal discourse? This
approach determines the mode of
Investigation—clear delineation of the boundaries of enquiry and a concentration upon
objective reality.

POSITIVIST AND THE LAW

It is of the essence of legal positivism that positive law alone is considered to be ‘the law’.
The judicial norms laid down by the State, case law, statute, regulations and other orders,
constitute the basic material which is the foundation of juristic enquiry.
The legal positivist will be aware of, but will ignore in principled fashion, questions of what the
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law ought to be.

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‘IS’ AND ‘OUGHT’ (THE SEPARABILITY THESIS)

The first element of positivism is the separation of law as it “is” and the law as it “ought” to be.
This approach of defining law placed emphasis on the analysis of legal concepts in the search of
applicable rules and a denial of moral judgments arguing that the latter cannot be based on
observation and rational proof.
The above statement was use by Austin to justify his arguments for separation of law from
moral concerns.
In the propoundment of analytical positivist theory, Austin called for the separation of positive
law which he took to be the “command of or directive of by superior authority (sovereign) laid
down or posited from any moral ethical concerns. This has often been referred to as the
separability thesis.
The legal “is” is all that counts; the “ought” is of no consequence and the relevance in positivist
jurisprudence.
The test of legal validity is therefore a given norm as it is and not its moral or ethical contents
and qualifications.
The fact that a law that commands what is ethically wrong or forbids what is ethically right is still
a valid law.
That in determining what is law; regard should not be paid to its moral fairness, justness or
moral quality.
The separation of law from morals also extends to the incidence of the origin of a law maker
such that the legitimacy or otherwise of the law maker is not a major concern to the positivist,
therefore excluding any concerns as to the moral authority of the law maker.
Legal positivism follows Hume and his successors in declaring: ‘One cannot deduce validly
“ought” from “is”.’
Normative statements cannot be inferred validly from merely factual statements. The very term
‘ought’ is not free from difficulties of interpretation arising from ambiguity.
Consider its ‘meaning’ in statements such as: ‘You ought not to steal’; ‘If you kick this ball it
ought to move’; ‘Those who drive dangerously ought to be punished according to law.’
(Carnap, a founder of the logical positivist movement, stated in an argument which was to
achieve notoriety: ‘From the statement “killing is evil’ we cannot deduce any proposition about
future experiences.
Thus the statement is not verifiable and has no theoretical sense, and the same is true of all
other value-statements’.)
The legal positivist concern is with the “is” of the law and not the “ought” of the law. They argue
that if normative rules reflect no more than subjective opinions, they cannot be deduced from
physical reality.
Hence the legal positivists approach to defining law therefore excludes value judgments and
moral considerations e.g. Austin formulated “the existence of law is one thing, its merit or
demerit is another”.

THE PROBLEM IN JURISPRUDENCE

If we are unable to demonstrate what ought to be merely by inferring from existing fact, we can
not rationally assert the necessity of a rule of moral behavior as a basis of law.
If it is not possible to show the truth or falsity of “what ought to be”, is there any value to be
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derived from a search for the moral verities said to be at the basis of the law? Is the concept of
utilitarianism as a basis of law any more than an assertion of what ought to be?
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Positivist note and accept the very wide gap between “is” and “ought”;their general reaction is:

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1. First, to reject the veracity claimed for those metaphysical theories basing positive law on
so-called “immutable moral principles” .
2. To concentrate their attention as legal analyst on a study of the rules constituting the law as
it is (But this is not to imply however that positivist jurists are uninterested in the problems
of social morality)

USAGE OF THE TERM POSITIVISM

The word is derived from ponere, positum=to put.

‘Positive law’ is that which is man-made, i.e., formally laid down.
Hart, in The Concept of Law (1961), enumerates the following common usages of the term as
applied to law:
1. To describe the idea of law as a command of a superior (as favored in the explanations of law
by, e.g., Austin and Bentham).
2. To describe the view that there is no necessary link between law and morals.
3. To name the idea of analysis of legal concepts.
4. To denote the concept of a legal system as a closed logical system.
5. To denote the theory that moral judgments cannot be derived from rational argument as such.
The term is used to indicate a view of law as comprising the positive law only to the total
exclusion of those concepts of law based upon transcending the empirical reality of the legal
system.

DIFFERENT TYPES OF POSITIVISM

1) Philosophical Positivism: The term refers to a doctrine holding that our knowledge of matters of
fact is derived solely from the data of experience, so that metaphysical “transcending
knowledge” i.e. that which is not based on experience is to be abjured as of no value.
2) Logical Positivism: This doctrine which stems largely from the writings of Carnap and
Wittgenstein involves a total rejection of the statements that are not based on tested and
verified experiences of senses. Metaphysical assertions are therefore valueless. Ethical
imperatives are considered worthless since they are based on norms that can not be tested
empirically.
3) Legal Positivism: The phrase is widely used to refer to that mode of jurisprudential analysis
involving a scientific study of the body of rules, termed “laws”, without references to extraneous
matters such as social context, political and psychological background.

SCOPE OF LEGAL POSITIVISM

The word ‘positivism’ derives from positum, the part participle of ponere, which means ‘to put.’
It means that which is formally laid down or affirmed by man. It contrasts with natural law
whose existence derives from metaphysical or transcendental roots.
Positivism is the rejection of the normative and the embrace of empiricism.
Normativity has to do with idealism. This mode of thought commences its inquiry from an idea
before it proceeds to matter. It is metaphysical and transcendental. It is the tool utilized by
natural law. On the other hand, empiricism, a mode of thought of positivism, is a way of thinking
which emphasizes materialism. Knowledge validated in sense experience is the basis of
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positivism. For such validation, it relies on experimentation or observation.

It is descriptive; it describes what is as it is and no more. Above all, it is scientific.
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Natural law is animated by idealism in the same way that positivism is propelled by materialism.
In legal positivism, however, a metaphysical explanation of reality is denigrated in preference
for the scientific method.
Legal positivism believes it is the height or apogee of legal thought.
According to Comte (1798-1857), evolution of human thought has passed through three stages:
theological, metaphysical and positivistic.
1. In the first stage, knowledge is acquired or validated by reference to religion – such as
Christianity and Islam. For example, before the Renaissance, the Church monopolized
knowledge to such an extent that natural law was adorned with its garment until the 16th
century when Hugo Grotius secularized natural law.
2. In the second stage, knowledge is based on idealism, on events that have no material reality.
3. In the third and last stage, knowledge is scientific, that is, knowledge acquisition or
dissemination is validated by the processes of observation, experimentation, etc. The natural
sciences are the natural habitat for such methodology.
Note that the emergence of social sciences was an attempt to replicate the approach of the
natural scientists in the study of human behaviour.
Dennis Lloyd observes that the real impetus to the positivistic approach to learning can be
traced to the Renaissance with its emphasis on the secular studies of science and humanism.
In relation to law, efforts to place legal study on a scientific or unbiased pedestal or footing led
many early legal positivists to create strictly empirical way of understanding or studying law.
Such early advocates of legal positivism included Jeremy Bentham (1748-1832) and John Austin
(1790-1859).
Note that these advocates benefited from the philosophers and political theorists of earlier age
such as Thomas Hobbes (1588-1679) and David Hume (1711-1776).
The fruits of the legal positivistic doctrine ripened in the 18th century when the laws governing
the physical world (both animate and inanimate) were separated from those governing human
conduct.
There are five categories of the possible meanings of legal positivism as follows:
(a) The contention (in the view of Jeremy Bentham and John Austin) that laws are commands of
human beings, the command of a superior to an inferior who habitually obeys the former.

(b) The proposition that there is no necessary link between morals and law. Proponents include
Hume, Bentham, Austin, Kelsen and Hart. In other words,legal positivism is a body of law which
exists independently of mores, moral norms or moral code. It asserts that despite the existence
of a relationship between law and morals there is no necessary connection between them. This
is another way of saying that the nexus between the two cannot be taken for granted because
each can exist in spite of the other.

(c) The contention (according to Kelsen) that the analysis (or study of the meaning) of legal
concepts is (i) worth pursuing and (ii) to be distinguished from historical inquiries into the causes
or origins of laws, from sociological inquiries into the relation of law and other social
phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims,
“functions”, or otherwise.

(d) The contention (according to Kelsen) that a legal system is a “closed logical system” in which
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correct legal decisions can be deduced by logical means from predetermined legal rules without
reference to social aims, policies or moral standards.
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(e) The contention that moral judgements cannot be established or defended, as statements of
facts can, by rational argument, or evidence or other proof.

In (a) above, legal positivism is expressed in the form of the capacity of a superior to issue
commands to be obeyed by inferiors. Popularly known as the command or imperative theory, it
was popularized mainly by John Austin.
In (b), legal positivism is concerned with the relationship between man-made law and morals. It
states that notwithstanding the degree of relationship between them, each is separate and
independent. As Hart says, there is no necessary connection between law and morals. It argues
that positive law is to be studied to the “total exclusion of any law transcending the empirical
reality of the existing legal system.” Thus, morality cannot be mixed up with positive law let
alone be used as a litmus test for the validity of the latter because it is metaphysical or
transcendental. (e) is closely associated with (b).
In (c) In his desire to purify the impurities contained in positive law, Kelsen developed the Pure
Theory of Law. In summary, he sought to totally separate not just moral issues but also
sociological and historical character of law from manmade law. Note that (d) is connected to (c).

IMPACT OF POSITIVE LAW ON NATURAL LAW

The impact of the rise of positivism on the doctrine of natural law was great.
Hitherto, natural law was accepted or almost accepted as given, as self-evident, demonstrable
by reason.
But the trenchant criticism of positivism has made it like a mere pretentious name for moral
rules.
According to David Hume, justification for such rules is to be found in certain aims of life
determined not by reason but by human desires or passions.
In other words, moral values are a response to the existentialist needs of humanity the same
way as necessity is the mother of invention.
Put differently, passion or emotion is the basis of morality, not reason.

CONVERGENCE OF POSITIVE LAW AND NATURAL LAW

Despite such impact, there is no escaping the fact that there are instances where positive law
and natural law (or morals/religion) all converge because they all embody norms comprising
obligations and rights, for example, their common prohibition of murder, rape, etc. Also, in
imposing certain standards of behaviour, positive law and natural law reinforce and supplement
each other.
For example, the moral duty not to harm another manifests as the Law of Tort; the duty to
honor promises is expressed in the Law of Contract; the duty not to create unjustified hazards
for another can be found in positive law providing for rules on speed limit, traffic sign,
roadworthiness, etc.

SEPARATION OF POSITIVE LAW AND NATURAL LAW (DIFFERENCES)

Notwithstanding the convergence between positive law and natural law, there are so many
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instances in which their streams do not flow together.

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1. Legal positivism revolves around the belief, assumption or dogma that the question of what is
the law is separate from, and must be separated from, the question of what the law should be.
John Austin captures this worldview as follows: The existence of law is one thing; its merit or
demerit is 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. A law, which actually exists, is a law, though we
happen to dislike it, or though it varies from the text, by which we regulate our approbation and
disapprobation.
2. Legal positivism believes that social institutions can be studied objectively, that is, in a manner
devoid of passion, emotion or bias. It does not deny that certain laws may be evil or
condemnable but it insists that the quality of the law does not affect its validity. In other words,
legal positivism is saying that the question of the goodness or badness of the law must be kept
separate from the validity (that is, whether the law has been made in accordance with the
requirements of the legal system in question) of the law.
3. Legal positivism distances itself from morality because morality, which advertises itself to be
universal, certain and objective, is reality marked or marred by relativism, uncertainty and
subjectivism. There is, therefore, the need for distinction between analytical jurisprudence
(positive law) and normative jurisprudence (natural law). Whereas analytical jurisprudence
focuses on the basic facts of the law, its origin, existence and underlying concepts, normative
jurisprudence concerns itself with the goodness or badness of the law.
4. Legal positivists accuse natural law theorists of deriving an ‘ought’ from an ‘is. ‘The explanation
of this accusation is rendered by Chinhengo as follows: The question of what the law ought to
be is an important question of morality, since it is ultimately based on the value judgments of
persons in society which are properly reached at after the exercise of reason. The goal which it
is intended to achieve through law is also identified through reflection, and may be objectively
discovered from the attitudes or preferences of all moral persons in society. From this they
deduce what the desired state of perfection and the moral principles leading to it should be. On
this basis they decide what the law ought to be which will lead to the desired result.
5. In response to the insistence of naturalists that natural law occupies a pride of place in the legal
universe, towering over and above positive law, legal positivists often draw the attention of the
former to the difference between the lex lata (the law as it is) and delege feranda (the law as it
ought to be). Positivists maintain that there must be a separation of the ‘is’ from the ‘ought.’ To
positivists, one cannot validly deduce “ought” from “is.” Normative statements cannot be
garnered from merely factual statements.
6. The ‘is’ must be taken or studied as it is. This must serve as a necessary base for the legal
researcher who is interested in legal reform, in advocating for a change or review of the law.
The utility of this approach is that it allows for clarity of legal thought.
7. Note that natural law proponents do not make such distinction. Stressing the unity of law, they
believe that it is either there is law or there is not. If there is law, it must, to be valid, meet the
metaphysical, transcendental standard of natural law.
8. Note also that positivists believe that natural law is an impurity or infection that must be
quarantined out of positive law. It is in a bid to do this that there is a separation of the ‘is’ from
the ‘ought,’ a distinction that seeks to make law value neutral, devoid of any moral
underpinning, emotion or passion. According to Kelsen, in his General Theory of Law and State
(1945): ‘Pure theory of law’ is so-called ‘because it only describes and attempts to eliminate
from the object of the description everything that is not strictly law: its aim is to free the science
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of law from alien elements.’

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NB: Bear in mind that it is the spirit of such elimination that has informed several doctrines in the family
of positive law. Thus, the command theory or the imperative law theory is associated with John Austin,
utilitarianism with Jeremy Bentham and John Stuart Mill and, of course, Pure Theory of Law with Hans
Kelsen.

HART-FULLER DEBATE

It is important to consider, howbeit briefly, the academic exchanges between the proponents of
legal positivism as represented by H.L.A. Hart and those of the natural law school represented
by Lon Fuller.
The gravamen of such academic discourse, usually tagged Hart-Fuller debate is to be found in
the Harvard Law Review 1958.

a) Background of the debate

A discussion in the 1950s between Hart (b 1907) and Fuller (b 1902) concerning legal events in
Germany, following the Second World War, led to a debate in which some fundamental
differences between the advocates of legal positivism and the natural law were restated.
Hart was to argue that law is law even though it fails to satisfy the demands of morality.
Fuller maintained that a law divorced from morality ceases to be ‘law’.
The post-war legal system in Germany was designed deliberately so as to rid itself of all vestiges
of thought and procedures associated with the former regime. This was helped by the influence
of the German jurist, Radbruch, who had abandoned ‘legal relativism’ in favor of a move
towards the doctrines of natural law.
In 1949 the German courts sentenced a woman who had denounced her husband during the
war because of his criticism of Hitler. The woman pleaded that her action was ‘lawful’ under the
terms of a law then in force. The court ruled in 1949 that her action was contrary to the sound
conscience and sense of justice of decent human beings.

b) Hart Opens the debate

Although Hart was sympathetic to the attempts of the German legal system to cast aside all
remnants of the dictatorship period, nevertheless, he argued, law remains law even though it
does not meet the requirements of morality.
Whether a bad law (such as that allowing the denunciation of the husband) ought to be obeyed
is a significant, but entirely separate, question.

c) Fuller’s Response

Hart, Fuller claimed, was in error. A law must possess certain characteristics if it is to be
classified correctly as ‘law’.
There was nothing in the legal system of the dictatorship which remotely resembled true law.
Hart’s error arose from the general positivist position which demanded a separation of law from
questions of morality.
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d) Hart and the minimum content of law

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Hart responded by stressing his belief that ‘law’ and ‘morality’ were not interchangeable terms,
so that one should not impugn a law solely on the grounds of its lack of morality.
Hart suggested that the ‘human condition’ necessitated the creation of minimum rules designed
to protect persons, property and rights created by promises.
The ‘human condition’ revealed vulnerability, approximate equality, limited altruism, scarce
resources and a general, limited understanding and strength of will. It was the recognition of
these matters which formed the core of good sense in the doctrine of natural law.

e) Fuller Response

Fuller argued further that a legal system must aim at the subjection of human conduct to the
governance of rules.
Law must have its own ‘internal morality’. It must be more than the mere ad hoc settling of
disputes; it must not be retroactive; it must be intelligible, free from contradictions, must not
require the impossible and must produce congruence of its declared aims and the actions of
administrators.
The dictatorship in Germany had produced an essentially ‘lawless’ regime which had forfeited
any right to expect allegiance from its citizens.
Hart’s arguments illustrate the results of attempting to separate law from morality.

f) An inconclusive Debate

In spite of Hart’s nod in the direction of ‘the core of good sense’ in the natural law, the parties
to the debate remain widely separated.
For Hart it is the confusion of ‘law’ with ‘morality’ which blurs the fundamental issue: law
remains law until repealed or otherwise replaced. Fuller sees this as an inevitable, and
regrettable, result of positivist doctrine; for him man-made law which lacks an inner morality
has no claim to be recognized as ‘true law’.
It has been suggested that the inconclusive nature of the debate followed inevitably from a
failure to define terms such as ‘law’, ‘morality’, ‘lawlessness’.

POSITIVIST THEORY SCHOLARS (JURISTS)

The positivist theorist can be divided into three categories
a) Classical Legal Positivism (John Austin and Jeremy Bentham)
b) Analytical Jurisprudence or Modern Legal Positivism (Has Kelsen and HLA Hart)
c) Modern Positivists (Ronald Dworkin Interpretivism and John Raz)

DEVELOPMENTS IN THE POSITIVISTS SCHOOL OF THOUGHT:

CLASSICAL LEGAL POSITIVISM

1. JEREMY BENTHAM (1748-1832)

Foundation and Influence

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Bentham argued that one must look at the law as is posited in the codes and statutes.
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His opposition to the natural rights was premised on the fact that they were distributive and
individualistic, contrary to the collective philosophy of utilitarianism of maximizing the total net
sum of happiness.
Bentham’s opposition to the natural rights concept was also influenced by the experience of
France under the Jacobin Rule where the idea of civil disobedience to laws as unjust had in his
view led to anarchy.
To Bentham all rights were the fruits of positive laws and therefore the dispute whether an
individual has a right and what its scope is, is an objective ascertainable fact to be rationally
resolved by reference to the terms of the relevant positive law.

Concept of law and the search for determinacy

According to Jeremy Bentham, there are two categories of persons with regard to concept of
law:

1) Expositors:-Those who explained what the law in practice was.

2) Censors:-Those who criticized the law in practice and compared it to their notions of what it ought to
be.

The philosophy of law according to Bentham was to explain the real laws of the expositors
rather than the criticism of the censors.
Bentham was of the view that law is a command of a sovereign backed by force. This view
dominated legal positivism's thought about law.
According to Bentham, law is a phenomenon of large societies with a sovereign, a determinate
person or group who have supreme and absolute de facto power (they are obeyed by all or
most others but do not themselves obey anyone else.
This obedience shows positivism because there can arise no questions as to whether the
sovereign has a moral right to rule or whether his commands are meritious.
It further has two more features:
a) The theory is monistic:- it represents all laws as having a single form i.e. it imposes obligations
on the subjects, though not on the sovereign.
b) It is also reductivist: it maintains that the normative language used in describing and stating the
law can all be analyzed without remainder in non-normative terms.

Codification of law and the role of a judge

In law, codification is the process of collecting and restating the law of a jurisdiction in certain
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areas, usually by subject.

Jeremy Bentham is for the law as given by the lawgiver- in Kenya ours is the Parliament- his faith
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Codification was to bring scattered materials of law together into one piece which will then be
treated as posited law. Positivism points towards codification of law. It is therefore the codified
law that the Judge/Adjudicator refers to for directives in legal proceedings.
The Judge also seeks to interprate the law in a manner provided for by law. Basically, the role of
a judge is to adjudicate matters before court as provided for by the posited/codified law.

2. JOHN AUSTIN (1790-1859)

He was greatly influenced by the works of Jeremy Bentham

John Austin believed that the distinguishing feature of a legal system is the existence of a
sovereign whose authority is recognized by most members of a society, the authority of which is
enforced by the use of sanctions, but which is not bound by any human superior.
Austin defined the law as “the command of the sovereign, backed up by sanctions.” The three
crucial components of this definition are the words command, sanction and sovereign.
The three basic tenets of Austin's positivism are:
i. laws are commands issued by the un-commanded commander, i.e. the sovereign;
ii. such commands are enforced by sanctions; and
iii. a sovereign is one who is obeyed by the majority
Austin considered the law as commands from a sovereign that are enforced by threat of
sanction.
In determining 'a sovereign', Austin recognized it is one whom society obeys habitually. This
sovereign can be a single person or a collective sovereign such as Parliament, with a number of
individuals, with each having various authoritative powers.
Austin's theory is also somewhat brief in his explanations of Constitutions, International Law,
non-sanctioned rules, or law that gives rights. In so far as non-sanctioned rules and laws
that allow persons to do things, such as contract law, Austin said that failure to obey the rules
does result in sanctions; however, such sanctions are in the form of "the sanction of nullity."
The major elements of Austin’s positivism are summarized as follows:
a) The source of law is a social fact
b) Law being an express or tacit command emanating from sovereign power
c) Law embodies a medium of sanctions
d) Law should be separated from morals and ethical concerns
e) The habitual obedience to the law.

TYPES OF LAWS

Laws can be classified into two ;the first class of laws is that of laws properly so called this are
laws either made by humans for humans or divine law laws made by God for men and the
second class laws improperly so called are the laws that are encompass what Austin calls
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positive morality laws that exist by analogy or metaphor.

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2. Laws properly so called

Laws properly so called are laws that are based on commands or a species of commands.
That laws are commands that every law must b followed and that if there is failure to obey this
commands one would b liable for a punishment and so laws to him are commands and that for
it to be termed a proper law it had to comprise this two elements he also stated that if one
cannot be punished so as to comply with that command then that ceases to be a command and
subsequently not a law,thus for Austin proper laws are laws that are either created for men by
God or laws created by men for men as political superiors or by private persons in pursuance of
legal rights.

3. Laws improperly so called

Laws improperly so called are laws which are closely analogous to proper laws they are merely
metaphorical in application this is an improper use of the term law.
Laws that are observed by lower beings such as the laws of animals or the laws regulating the
growth of vegetables or their decay or even the laws governing the movement of inanimate
bodies or masses .to Austin where there is no intelligence or reason then it cannot be conceived
as law as there is no will that can be worked on or duty that can be imposed to create any
restrain.
The word law in his mind cannot be used in a figurative manner or in a metaphorical way it has
to be applied strictly for it to be law.

TRIOLOGY OF SOVEREIGN, COMMAND AND SANCTIONS

These are the three basic tenets of Austin’s positivism.

Austin’s theory is an imperative theory of law, in which the key elements are those of
sovereignty ,command and sanctions

AUSTIN ON SOVEREIGNTY

Austin attempted to work out what he believed to be the legal and logical implications of
sovereignty as viewed by a legal positivist.
His sovereign was postulated as an illimitable, indivisible entity.
According to him there was one all- powerful sovereign that cannot be divided & no partial
sovereignty.
He based sovereignty on habitual obedience; the sovereign is a common & determinate
individual or group whom the population habitually obeys.
“Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a
sovereign body of persons, to a member or members of the independent political society
wherein that person or body is sovereign or supreme.”
The law is created by a sovereign.
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However he recognized that law can itself be based on law but must be based on something
outside law and he therefore sought to base it upon fact, the habitual obedience of the mass of
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AUSTIN ON THE COMMAND THEORY

Austin’s definition of law is more restrictive.

He views a law as a command addressed by a political superior to an inferior.
Every law is command of sovereign.
Every law is command issued by the ‘uncommanded commander’- the sovereign
In his view, no one can address a command to themselves or grant rights to themselves; one can
only have some right through the might of another.
Austin insisted on a determinate person or body as the source of a command, that a command
is an exercise of will of some particular person or persons.
The idea of a command presupposes the order of a determinate person.
Justification for calling law a command is that it refers to the ‘logical’ classification of legal
prepositions as ‘imperatives’ or ‘directives’ that is, they are normative statements laying down
rules to guide human conduct as distinguished from statements of fact.
According to him, only commands exist.
Laws are rules; they constitute obligations for the whole community or for some classes of its
members.
The concepts of right, power, obligation duty, service etc. can all be reduced to that of
obligation.
He states the correlativity between right and obligation; “Every legal right is the creature of a
positive law; and it answers to a relative duty imposed by that positive law and incumbent on a
person or persons other than the person or persons in whom the right resides.”

COMMAND THEORY AND INTERNATIONAL LAW

International law is a body of rules governing States, international organizations and individuals.
It is different from municipal or domestic law in several respects.
Whereas international legal system is primitive or poorly developed, domestic legal system is
civilized or highly developed.
Manifestations of this include absence of a super-sovereign or law-giver, the existence of
collective responsibility, and its incapacity to possess institutions of governance similar to the
ones available in domestic legal systems.
In view of the foregoing, Austin concluded that international law was no law but rather an act of
comity by States.
At best, he defines or describes international law as international positive morality.

AUSTIN ON SANCTIONS

Austin insisted on sanctions as a mark of law.

The law which is a command by the sovereign is backed by the threat of sanctions.
His rationale for having legal sanctions was to have the society conform to the laid down laws.
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Austin said that failure to obey the rules does result in sanctions; however such sanctions are in
the form of “ the sanction of nullity”
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CRITIQUE OF AUSTIN

ON SOVEREIGNTY

Much of the criticism directed at Austin has been concerned with the deductions that he made
from his fundamental positions, such as the illimitable and indivisible nature of sovereignty.
He was too rigid in his view on the nature of sovereignty; its indivisible and illimitable nature.
On the indivisible nature of sovereignty, federal constitutions falsify this notion as there is
divisibility of sovereignty.
Sovereignty is not a metaphysical entity with an ineradicable logical structure it is infact a
practical device of law and politics whereby effect is given to the practical need in any political
community for some final or ultimate legal authority.
Sovereignty is divided and the constitutional court is itself subject to or controlled by the legal
system.
On the aspect of unlimited sovereignty as propounded by Austin, the power of a sovereign need
not be unlimited; many constitutions impose entrenched clauses so that no change is possible
without a change of constitution.
Unlimited sovereignty, therefore, can properly only refer to a body being without a superior in
the structure of the state, but this implied nothing either logically or legally as to the degree of
its freedom of action.
The attempt by Austin to base sovereignty on habitual obedience has been strongly criticized, as
confusing the legal with the de factoor the political sovereign.
Austin for instance never imagined that the body of electors was in itself the de facto power of
the state, or was not subject to all the force of pressure of those able to direct it.
Something was wrong with Austin’s invocation of fact in the form he used it, it is hard to identify
a ‘sovereign’ in Austin’s sense of the word (he himself faced a difficulty shown by his refusal to
accept the King in Parliament as England’s legal sovereign.

It should be noted however that Austin’s views were defended by other theorists too:

Harris (1977) argued that the sovereign is best understood as a constructive metaphor that law
should be viewed as if it reflected the view of a single will
A similar view to back Austin was stated by Ronald Dworkin’s work of (1986: pp. 176-190)
where he said, that law should be interpreted as if it is derived from a single will.

ON THE COMMAND THEORY

To conceive a law as a command raises many questions one of them being are all laws commands?

1. It seems to fit some aspects of law poorly e.g. rules which grant powers to officials and to
private citizens such as the rules of making wills , trusts and contracts
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It seems more distorting than enlightening to reduce all legal rules to one type e.g.
rules that empower people to make wills & contracts can be included in those requiring
a reason to imposing of sanctions for those who fail to comply with relevant provisions.
However, such re-characterization misses the basic purpose of those sorts of laws- they
are arguably about granting power and autonomy, not punishing.
2. Another criticism to this command theory is that, the theory portrays law solely in terms of
power but fails to distinguish rules of terror from forms of governance sufficiently just as they
are accepted as legitimate by their own citizens.
3. H.L.A. Hart ( 1958: p. 603) objected Austin’s views by stating that “ Rules and laws are not
commands habitually obeyed, nor can they be expressed as habits of obedience to persons”
1. Here Hart was referring to the constitutive rules that determine who the legal officials
are and what procedures must be followed in creating new legal rules.

Some theorists however backed Austin’s view of the command theory.

2. Olivecrona though he criticized Austin’s view of a law as a command and use of the
word ‘command’ as undesirable, nonetheless recognized Austin as being justified in
classifying legal rules as imperative statements, and suggests the term “ independent
imperatives”

ON SANCTIONS

Austin’s insistence on sanctions as a mark of law has frequently been objected to as concealing
or distorting the real character and functions of law in a community.
1. Essence of a legal system is the inherent fact, based on various psychological factors,
that law is accepted by the community as a whole as binding and the element of
sanction isn’t an essential.“It is because a rule is regarded as obligatory that a measure
of coercion may be attached to it; it is not obligatory because there is coercion.”
2. Existence of an authority clearly exerts obedience and following of laid down laws by a
society thus threat or application of sanctions is only a peripheral feature of law and
thus law could still function without sanctions.
3. This view is supported by experiments of Milgram which demonstrated the enormous
impact of authority, believed in as legitimate, in securing voluntary obedience to
instructions lacking any sort of sanctions
Accordingly, even if coercive sanctions are commonly associated with legal rules they are by no
means the source of legal obligation i. e. sanctions are not the reason why people obey the law.
Raz maintains that, “the fact that every law is a command entails that every law can be an
independent unit, the existence, meaning or application of which is not logically affected by
other laws”.
H.L.A. Hart states that to try to extend the notion of a sanction to cover nullity of a transaction
56

is absurd for in criminal law, the purpose of a sanction is to discourage, whereas the purpose of
legal rules conferring power is to provide for the implementation of certain acts in law.
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Justification for the use of sanctions as a tool for law (The Coercion Theory)

It is practically certain that if the law ceased to apply sanctions as a whole society would
disintegrate.
Moreover in a more fundamental philosophical viewpoint, if the question what is law? Was to
be substituted by what is ‘illegal behavior’? The answer can be given in purely sanctionist terms
as simply behavior which the sovereign or governmental power is disposed to punish.

Critique of Austin:

He was too rigid in his view on the nature of sovereignty; its indivisible and illimitable nature.
On the indivisible nature of sovereignty, federal constitutions falsify this notion as there is
divisibility of sovereignty.
Sovereignty is not a metaphysical entity with an ineradicable logical structure it is in fact a
practical device of law and politics whereby effect is given to the practical need in any political
community for some final or ultimate legal authority.
On the aspect of unlimited sovereignty as propounded by Austin, the power of a sovereign need
not be unlimited; many constitutions impose entrenched clauses so that no change is possible
without a change of constitution.
Unlimited sovereignty, therefore, can properly only refer to a body being without a superior in
the structure of the state, but this implied nothing either logically or legally as to the degree of
its freedom of action.

To conceive a law as a command raises many questions one of them being are all laws commands?

It seems to fit some aspects of law poorly e.g. rules which grant powers to officials and to
private citizens such as the rules of making wills , trusts and contracts. The law operates in
these areas as a result of free will of the parties involved.

SUMMARY

CONCEPT ANALYSIS
Essence of Austin’s jurisprudential Austin (1790–1859) argued that the aim of government is ‘the
thought greatest possible advancement of human happiness’.
Jurisprudence was concerned solely with positive laws and not
with their goodness or badness.
Positive law is law set by political superiors to political inferiors.
Law is, in reality, the command of a Sovereign.
Laws may be classified as follows:
1. Laws improperly so-called, comprising laws by analogy, eg,
law of honour (and even, according to Austin, international
law), and laws by metaphor (eg, laws determining the
movements of inanimate bodies).
57

2. Laws properly so-called which are ‘general commands’,

comprising the laws of God, and laws set by men to men.
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The human laws comprise laws not strictly so-called (eg, a

father’s rules for his children) and laws strictly so-called, ie,

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laws set by political superiors to political inferiors and laws set

by private persons in the pursuance of legal rights.
The basis of ‘sovereignty’ is the fact of obedience. The power of
the Sovereign is incapable of legal limitation.
Law is, essentially, a command issued by a political superior to
whom the majority of members of society are in the habit of
obedience, and which is enforced by a threatened sanction.
Sanctions are based on motivation by the fear of ‘evil’ which
will probably be incurred in case a command is disobeyed.
General criticisms of Linguistic looseness, as in the use of the term ‘command’ and
Austin’s doctrine confusion of sovereignty de facto with sovereignty de jure were
noted by critics.
Vinogradoff observed that Austin approached law from its
formal side only and seemed unaware of the fact that the basis
of law may be found in agreement, rather than command.
Further, Austin has paid insufficient attention to the
significance of ‘justice’ in the growth of the law and has given
inadequate weight to judge-made law.
Hart’s criticisms It has been suggested that the concept of law as ‘orders backed
by the threat of application of sanctions’ is inadequate.
There are, in fact, many laws in which there is neither order nor
threat.
Austin’s view of the law-maker as ‘above the law’ is unrealistic.
In the English legal system, Parliament is bound by its own strict
procedural rules, for example.
Law did not originate in ‘order plus threat’. The importance of
custom as a source of our law is not reflected in Austin’s
doctrine.
Austin’s suggestion that the Sovereign is obeyed because of
‘habits of obedience’ is too simplistic. Thus, citizens’ obedience
to the orders emanating from the Queen in Parliament
represents, basically, an acceptance of the appropriate rules
affecting legislation.
Austin’s ‘omnipotent Sovereign’ is a fiction. Thus, Parliamentary
sovereignty is limited in a variety of ways. If it be argued that
the electorate in a democracy is ‘truly sovereign’, an
examination of its powers will reveal important limitations, eg,
as the result of delegation of some of those powers to its
representatives in Parliament.

RELEVANCE OF THIS AUSTINIAN IDEA OF LAW IN MODERN SOCIETY

Despite such incidence as the Nazi Germany and the Apartheid and even colonization positivist
position has retained validity and relevance in modern legal discourse and analysis.
This validity and relevance can be seen in the following instances:
1. First is the fact that most states throughout the world have codified their laws in legislation.
In Africa attempts have even been made successfully in some countries and unsuccessfully
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in others to codify customary laws.

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2. The question of the moral authority of the law maker being unquestionable as an aspect of
the separability thesis is still relevant. This is widely manifested in many African countries
after independence during military dictatorship or during the rule of despotic leaders they
ruled by decree, passing laws that the courts administered without questioning the moral
authority to make the laws.
3. Significant also is the prevalent existence of legislation/law which even though unjust or
unfair or immoral like prostitution has been upheld by judges or even where there is a
constitutional standard. See UG vs. Haruna Kanabi (Criminal Case No 997 of 1995)

UG vs Haruna Kanabi (Criminal Case No 997 of 1995)

Despite the existence of a constitutional standard the magistrate insisted on enforcing the law on
sedition arguing that it was the law not withstanding that she felt it offended human rights

See also Salvatore Abuki vs. AG (Constitutional Appeal No 1 of 1998 Uganda)

Salvatore Abuki vs. AG (Constitutional Appeal No 1 of 1998 Uganda)

The dissenting opinion of Manyindo DCJ who said that courts should enforce law even though it be cruel
and inhuman. It was a case in the Witchcraft Act.

4. In the final analysis therefore, the Austinian concept is relevant to the extent that the courts
nowadays tend to admit certain extraneous factors such as justice, equality, human dignity
etc in their reading and interpretation of the law.

QUESTION: Discuss the command theory according to Jeremy Bentham and John Austin stating its
difference from Natural Law.

ANALYTICAL JURISPRUDENCE/ MODERN POSITIVISM:

3. HANS KELSEN (PURE THEORY OF LAW)-(1881-1973)

According to Kelsen, the Pure theory of law in his words was pure because it only described the
law. Its focus was to explain the normative nature of law. As a positivist, Kelsen sought to
furnish a formula that would enable him define and describe law without reference to any non-
legal factors.
He believed that the existence, validity and authority of law had nothing to do with non-legal
factors such as politics, morality, religion and ethics.
He meant to focus exclusively on the science, and not on the politics, of law. He insisted on the
independent consideration of the science of law with him discussing the hierarchy of norms,
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grundnorm and revolution.

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Kelsen understood law to be a system of coercion imposing norms concerned primarily with the
application of sanctions to persons who have acted in a manner not acceptable to the rules put
in place.
A norm is a regulation setting out how persons ought to behave. It is ‘ought’ because it
describes what ought to be, given certain conditions. It is normative. It is prescriptive. It is
binding.
He identifies the provenance of a norm in custom and legislation. According to him:
i. Norms either arise through custom, as do the norms of common law, or
ii. Enacted by conscious acts of certain organizations aiming to create law, as legislature acting in
its law-making capacity.
A norm is either valid or not valid.
A norm’s validity is derived completely from its having been authorized by another legal norm of
a higher rank in the hierarchy of norms.
On the issue of hierarchy of norms, he noted that every norm depends on its authority; that is a
superior norm. All norms whose validity may be traced back to one and the same basic norm
form a system of norms, or a hierarchy of norms.
They are linked hierarchically from the lowest to the highest norm. Thus, to the extent that all
the existing laws including by-laws, rules and regulations, state laws, statutes and the
constitution are so linked, they constitute a hierarchy.
According to Kelsen, a ‘basic’ norm, or the grundnorm, is one the validity of which does not
derive from a superior norm. It is the commencement of a specific chain of legal norms. The
grundnorm is the ultimate source of authority for all other norms below the highest.
It is insufficient for law to be valid or legitimate. Much more than this, it must be efficacious.
While validity is determined by the traceability of the norm to the existing basic norm, efficacy
relates to the effectiveness or enforceability of the norm.
The command theory has been criticized as well. The idea that law consists merely of orders
backed by threats is inadequate to explain modern legal systems.
Modern legal systems have laws governing the formation and implementation of contracts, of
wills, marriages and other executory instruments.
Also, there are laws which define the scope and limitations of judicial and legislative power, laws
which confer jurisdiction upon courts and govern the functioning of governmental institutions. It
is impossible to view these laws as mere orders backed by threats either.

SUMMARY

CONCEPT ANALYSIS
Kelsen’s methodology Kelsen (1881–1973) was concerned to explain what the law is,not
what it ought to be.
This involved a positivist analysis free from any ethical or political
60

judgments. Hence the title—‘the pure theory of law’.

The appropriate mode of analysis will be from ‘adulterating
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elements’ of other disciplines. Metaphysical speculation will be

rejected.

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Essence of the ‘pure theory Every activity of a legal nature may be traced back to an authoritative
standard—a ‘norm’.
Legal norms prescribe certain types of behavior and, additionally,
attach sanctions to any manifestation of the contrary type of
behaviour.
Law is considered, in terms of the ‘pure theory’ as a coercive order of
human behavior.
The validity of a norm is derived from its having been authorized by
another legal norm of a higher rank.
The legal order may be interpreted as a hierarchy made up of
different levels of legal norms.
The basic norm is the Grundnorm—the presupposed starting point of
the procedure of positive law creation.
Such a basic norm exists in any kind of legal order. No system of law
can be established on the basis of conflicting basic norms.
The effectiveness of norms The ‘principle of legitimacy’ of norms within a community is
restricted by the principle of effectiveness.
Norms must be accepted generally within the community.
Additionally, there must be appropriate general support for the
Grundnorm.
Universal and total obedience to norms is not essential (even if it
were possible). What is essential is a sufficiency of adherence to the
essence of the basic norm.
‘The efficacy of the total legal order is a necessary condition for the
validity of every single norm of the order.’
The ‘all-embracing nature’ of There is no such thing as a human activity which, because of its
law content, is disqualified from being embodied within a ‘legal rule’.
‘Subjective’ and ‘objective’ rights are merely personalized
expressions of one group of norms.
‘Natural’ and ‘juristic’ persons are no more than representations of a
type of norm relating to individuals.
‘State’ and ‘law’ are fundamentally identical. The State is the totality
of norms within a hierarchy. State and law are to be thought of as co-
extensive and the traditional dualism of ‘Law versus State’ has
disappeared.
Criticism of Kelsen Laski suggests that the ‘pure theory’ is ‘an exercise in logic and not in
life’. The theory is condemned as arid, unreal and far removed from
the complex reality of the law in action.
Because Kelsen has rejected any consideration of the context of a
legal system, he has given form precedence over meaning and has
failed to recognize the formative nature of the community’s morality
in relation to law.
The exclusion of any consideration of ‘justice’ from the ‘pure theory’
ignores the fact that for many jurists and legislators ‘justice’ is the
very essence of the law.
The place of coercion in the ‘pure theory’ ignores the fact that within
a community laws may be obeyed for reasons other than fear of
sanctions.
The concept of the Grundnorm has been held to be unreal and to
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represent little more than personal value-judgments.

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RELEVANCE AND UTILITY OF HANS KELSEN’S THEORY OF CHANGE OF GRUND NORM IN EXPLAINING
EXTRA CONSTITUTIONAL REGIME CHANGES/NEW LEGAL ORDERS

The doctrine of “revolution in law” has been used to legitimize violent and unconstitutional
regime in a number of countries.
It as first applied in State vs. Dosso and Another PLD (1958 SC 533) to legitimize a change in
government.

State vs. Dosso and Another PLD (1958 SC 533)

The constitution had been annulled and issue was whether the new regime was valid. Court observed as
follows;
That in determining the validity of laws one of the basic positivist doctrines is that one that requires the
jurist to presuppose the validity of the Constitution whether given by a usurper, national hero or
popular assembly of persons:
i. That the laws made/legal order under a Constitution continues as valid until it is replaced,
altered or amended in accordance with the constitution.
ii. That it sometimes happens that a Constitution and the legal order under it, is disrupted by an
abrupt change not in the contemplation of the Constitution.
iii. The effect of such change is not only the destruction of the existing Constitution but also the
validity of the legal order under it. Such a change is called a revolution of the law.
iv. That the method by which the revolution is brought about is wholly immaterial, it may be
violent or peaceful. Equally immaterial is the motive of the revolution.
v. A change is in law; a revolution if it annuls a Constitution and such annulments is effective.
Where attempt to change the Constitution fails, those who sponsor it can be charged under
existing Constitution for treason.
vi. If it succeed then the revolution itself becomes law because thereafter it becomes the
Constitution and the validity of the laws made after are to be judged with reference to the new
constitution.

The doctrine was also applied in the Ugandan case of Uganda vs. Commissioner of Prisons
Exparte Matovu (1966) EA 514

Uganda vs. Commissioner of Prisons Exparte Matovu (1966) EA 514

This was a writ for habeas corpus ,the applicant had been arrested under the Deportation Act on 22 May
1966.He was released and detained again on 16th July 1966 under an Emergency Legislation which came
into force after his first arrest. On 11 August 1966,the applicant was served with a detention order
pursuant to Article 31 (1) (a) of the Constitution of Uganda.

Between 22 February and April 1966 events took place that led to the abolition of the 1962 Constitution
62

and the adoption of the 1966 one. Prior to this change the prime minister had deprived the president
and the vice president of their offices contrary to the 1962 Constitution. The issue was whether the
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applicant was lawfully detained under the 1962 Constitution.

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Court relied on Kelsen’s theory to hold that the series of events that took place in Uganda from 22
February to April 1966 were law-creating facts described in law as a revolution i.e that there was an
abrupt political change not contemplated by the existing Constitution that destroyed the entire legal
order. The then prime minister of Uganda Milton Obote had assumed all executive powers as president,
by abrogating the 1962 Constitution and replacing it with another one.

Court held that although the 1966 Constitution had extra legal origins, it was a legally valid Constitution,
the 1962 Constitution having been abolished as a result of a victorious revolution in law. It therefore did
not exist anymore nor did it form part of the laws of Uganda it having been deprived of its de facto and
de jure validity

See also Madzimbabuto vs. Lardner-Burke (1969) LAC 645

Madzimbabuto vs. Lardner-Burke (1969) LAC 645

Lord Reid pointed out that there are situations where the law must take into account the fact that there
are no regimes, which are universally recognized as lawful but which derive their origins from
revolutions or coup d’états. The question is how or at what stage the new regime became lawful

However the theory has been criticized for not explaining what amounts to effectiveness. While
Kelsen states that effectiveness of the grund norm is based on recognition by a number of
persons willing to obey the law and that if the grund norm cases to have the support of the
people, it loses its effectiveness, he does not give any guidelines on the criteria by which
minimum effectiveness may be measured. The concept of an effective legal order is therefore
vague.
The theory has been criticized as being too readily rewarding to a usurper.
See Prof.Wole Soyinka vs Abacha and Others (1994) –[challenging the validity of Abacha’s
regime]

Prof.Wole Soyinka vs Abacha and Others (1994)

This case challenged the legal basis of the Federal military government and General Abacha’s
assumption of the office of Head of State of Nigeria on 17 November 1993.Chief Shonekan had been
head of what was the Interim National Government (ING) set up by the provisions of the Interim
Government (Basic Provisions) Decree 6 of 1993.This would follow the annulment of the presidential
election of June 12, 1993.

Chief Shonekan resigned; General Abacha next in seniority to him succeeded him the same day. Prior to
this the ING had been declared illegal by a judge of the Lagos High Court on 10th November 1993.Sonyika
argued that because Gen.Sani Abacha assumed office by self proclamation, pursuant to Decree 6 of
1993 which was itself declared null and void, the basis of his assumption of office was unlawful.
63

Justice Belgone in his holding did not think it was a revolution as Shonekan had as per evidence resigned
through threat, fear and intimidation however the judge found that the Abacha government was a
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product of a revolution and concluded that,having gained effective control of government its legality

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was un assailable. He struck out the suit holding interalia that the issue of Abacha’s government was
political and not judicial.

While in Exparte Matovu discussed above and other cases the Kelsenian doctrine was applied in
other cases it has been rejected in favour of the doctrine of State Necessity.

DOCTRINE OF STATE NECESSITY

The conditions for application of the doctrine of state necessity were stated in the case Mitchell
vs. DPP (1986)

Mitchell vs. DPP (1986)

It was held that for the doctrine of state necessity to apply the following conditions must exist:
i. An imperative necessity must be because of the existence of exceptional circumstances not
provided for in the constitution.
ii. There must be no other course of action reasonable available.
iii. Such action must be reasonably necessary in the interest of peace, order and good government.
iv. The action must not impair the rights of the citizens.
v. It should not be one the sole effect of which is to consolidate or strengthen the revolution as
such

See also the Pakistani case of Asma Jilani vs. The Government of Punjab (1972)

Asma Jilani vs. The Government of Punjab (1972)

Applying the doctrine of state necessity and rejecting the Kelsenian principle of revolution in law as
developed in the Decision of Dosso and Exparte Matovu’s cases the court stated that it could not
uphold the coercive power of the state,it stated that people and the courts are only silenced temporarily
and the order so imposed is illegal and court can not recognize it.

It went ahed to state that as soon as the first opportunity arises

64

4. H.L.A. HART. (LAW AS RULES)

HLA Hart together with Kelsen propounded the normative positivist theory.
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Their aim was to develop a legal theory that is basically positivist in conception but which would
be sufficiently flexible conceptually to take into account the normativity of the law.
Hart’s theory can be summarized in three prepositions
a) Law is a social fact
b) Law consists of a union of primary and secondary rules
c) Law and morality are conceptually separable
The concept of law according to Hart is a system of rules and the rules are the sole basis of a
legal system.
According to Hart legal system is nothing but a combination of primary rules of obligation and
secondary rules of recognition.
Laws are rules that;
1. May forbid individuals to perform various kinds of actions or that may impose various
obligations on individuals.
2. May require individuals to undergo punishment for injuring other individuals.
3. May also specify how contracts are to be arranged and how official documents are to be
created.
4. May also specify how legislatures are to be assembled and how courts are to function, how new
laws are to be enacted and how old laws are to be changed et cetera.
Laws that impose duties or obligations on individuals are described by Hart as "primary rules of
obligation."
In order for a system of primary rules to function effectively, "secondary rules" may also be
necessary in order to provide an authoritative statement of all the primary rules.
Secondary rules may be necessary in order to allow legislators to make changes in the primary
rules if the primary rules are found to be defective or inadequate.
Secondary rules may also be necessary in order to enable courts to resolve disputes over the
interpretation and application of the primary rules.
The secondary rules of a legal system may thus include 1) rules of recognition, 2) rules of
change, and 3) rules of adjudication.
The Distinction between Primary and Secondary Rules Hart's basic idea is quite simple. Primary
rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from)
and what consequences attach to obedience or disobedience. Thus, the criminal law rules that
prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition.
Technically, the class of secondary rules includes everything except primary rules. For
example, secondary rules are legal rules that allow for the creation, extinction, and alteration of
secondary rules; secondary rules are power-conferring rules.
Thus, contract law empowers individuals and firms to make contracts; contracts themselves are
usually collections of primary rules. More precisely, primary rules are rules that govern conduct,
and secondary rules are rules that do not.
An example of a Primary Rule is Criminal prohibitions, while an example of Secondary Rules is
65

Contract law rules that enable parties to form contracts, or the rules that allow testators to
create a will.
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Union of Primary and Secondary Rules

Primary rules of obligation are not in themselves sufficient to establish a system of laws that can
be formally recognized, changed, or adjudicated, says Hart.
Primary rules must be combined with secondary rules in order to advance from the pre-legal to
the legal stage of determination. A legal system may thus be established by a union of primary
and secondary rules.
Hart states further that there are two minimum requirements which must be satisfied in order
for a legal system to exist:
a. Private citizens must generally obey the primary rules of obligation, and
b. Public officials must accept the secondary rules of recognition, change, and adjudication
as standards of official conduct.
If both of these requirements are not satisfied, then primary rules may only be sufficent to
establish a pre-legal form of government.

SUMMARY

CONCEPT ANALYSIS
Essence of Hart’s
approach
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66

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RELEVANCE OF HART’S (MORALITY FILLED LAWS) THEORY IN SOCIETY TODAY

Hart argued that law was not to be an aspect of a just order but one of a good order in society
and posited the idea of internal morality of law.
Questions were raised as to whether the subsequent trials of the Nazi war criminals did not lend
a moral element to what was wrong with the positive law so called.
Questions have also been posed as to whether there are instances where it can be said that a
moral element is alluded to in judicial decisions in appraising positive law. See Salvatore Abuki
vs. AG (Constitutional Appeal No 1 of 1998 Uganda)

Salvatore Abuki vs. AG (Constitutional Appeal No 1 of 1998 Uganda)

Majority held that the Witchcraft Act was cruel and inhuman and therefore in effect unconstitutional. Is
this not in a jurisprudential sense an argument for a moral element, lack of which must result in
rejecting or depriving the Act of the character of law.

Compare with the Dissenting Opinion (Austian Theory)

The dissenting opinion of Manyindo DCJ who said that courts should enforce law even though it be cruel
and inhuman. It was a case in the Witchcraft Act.

See also Onyango-Obbo and Another vs. A-G (Constitutional Appeal No 2 of 2002)

Onyango-Obbo and Another vs. A-G (Constitutional Appeal No 2 of 2002)

The appellants were charged and convicted of publishing false news contrary to the Penal Code Act.
They appealed to the Constitutional Court on grounds that the offence of publication of false news was
incompatible with the constitutionally protected right to freedom of expression and that the penal
provisions on sedition are not justified and unnecessary in a free and democratic society. Court held that
section 50 of the Penal Code Act is inconsistent with the constitution in so far as it limits the enjoyment
67

of rights of freedom of speech and expression which include freedom of the press (Article 29(1) of the
1995 constitution republic of Uganda.
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Is this thus an argument that penal law is unjust or immoral to free thought?

See also State vs. Makwanyane (CCT/3/94 Constitutional Court of the Republic of South Africa

State vs. Makwanyane (CCT/3/94 Constitutional Court of the Republic of South Africa
The accused were convicted and sentenced to death for murder.They challenged the death penalty on
grounds that it was inhuman and degrading and contravened the constitution that disallowed such
treatment.

Doesn’t this raise the question of the sanction lacking morality?

MODERN POSITIVISTS

5. RONALD DWORKIN
Prof Ronald Dworkin was a renowned lawyer and political philosopher, was one of the chief
critics of Hart who in the 1970s and 80s mounted a series of challenges to Hart's Concept of
Law.
Ronald Dworkin in Law’s Empire suggests that every legal action has a moral dimension.
Dworkin discards the concept of law as acceptance of conventional patterns of recognition, and
describes law not merely as a descriptive concept but as an interpretive concept which
combines jurisprudence and adjudication.
Criticizing Hart’s version of law as a set of rules, Dworkin poses a question – Is law merely a
system of rules on which Hart has based his model of positivism?
Dworkin argues that in a legal system there are other things besides rules, for he says that a
legal system cannot be conceived merely as a code of rules.
Thus, Dworkin makes a differentiation between a rule and a principle, and articulates that a
legal system has to be conceived as an institution based on certain standards, principles and
policies.
According to Dworkin, the conception of law as a system of rules fails to take account of what he
calls ‘principle’.
A question that naturally arises is: What is the difference between a rule and a principle?
Rules are thought as detailed while principles are general. Principles are broad reasons that lie
at the foundation of a rule of law; they are wide formulations of reason or generalizations which
underlie and comprehend particular rules.
The principles are wider than rules and the rules are categorical precepts attaching a definite,
distinct and detailed legal effect; they are more specific and detailed than principles.
Dworkin says that the distinction between a principle and a rule is a logical one. Both points to
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particular direction about legal obligation in particular circumstances, however, they differ in
the character of the discretion they give.
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Rules are applicable in all-or-no fashion, principles state ‘a reason that argues in one direction
but do not necessitate a particular decision.
Principles are a matter of more or less while rules are a matter of yes or no. All that is meant,
when it is said that a particular principle is a principle of law, is that the principle is one which
officials must take into account, if it is relevant, as a consideration inclining in one direction or
another.
A principle has a dimension of weight or importance which a rule does not have. Rules, by
contrast, are functionally significant. Principles may conflict. If rules conflict, a further rule will
be needed to regulate the clash. The force of a principle may become attenuated over a period
of time; its strength may become eroded. This is not so with rules.
Hart’s view that the judges have the discretion to create new legal rules through extra legal
standards when the existing law is not ascertainable and provides no guidance to the judge to
apply the law to certain situation, has been criticized by Dworkin.
Rejecting this view, Dworkin says that a judge has a duty to appeal to certain principles and not
to others on the appropriate occasions and hence involves discretion in a weak sense.
Hart later presented an Epilogue in which he answers Dworkin and some of his other most
influential critics including Fuller and Finnis.
By this epilogue, which was discovered only after his death, he defends his work against his
critics and re-examines the foundations of his philosophy. He rebuffed the arguments of critics
like Dworkin, and strongly asserts that they have based their criticisms on a faulty understanding
of Hart's work.

INTERPRETIVISM

This is a school of legal philosophy commonly associated with American legal philosopher
Ronald Dworkin.
Interpretivism views law as being interpreted by the practice of lawyers and jurists, and claims
this is the nature of law itself. Unlike other schools of legal philosophy, interpretivism views law
not as something imposed from outside, but as a product of the practice of law.
Interpretivists claim law has a relationship with ethics and morality, but that they are not the
same.
Legal interpretivism was developed in the late 20th and early 21st centuries. It emerged into a
legal world dominated by two ways of thinking about the philosophy of law — legal positivism
and natural law theory.
Interpretivism has some similarities to both schools of thought and some important differences.
It has sometimes been thought of as a middle ground between the two.
Natural law theory is the older of the two schools of thought. Like all legal philosophies, it
contains several diverse points of view, but all share the basic idea that there is an underlying
natural law that serves as the foundation for manmade law.
Natural law consists of basic principles of fairness, justice, and equity that transcend cultural
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boundaries, and manmade or "positive" law should respect these. In some traditions, natural
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law is believed to proceed from divine or supernatural sources, while others see it as inherent in
human nature.
Legal positivism is a school of thought that says laws are made by human societies, not
discovered in nature, and have no inherent connection to ethics or justice, except insofar as
these considerations influence the people who create them. Legal positivists are more
concerned with studying the ways in which laws are created and applied. Positivism is
concerned with understanding the human institution of law, not endorsing or opposing any
particular law or way of making laws.
Legal interpretivism has some similarities with both schools of thought.
Like proponents of natural law, interpretivists agree there is an external purpose for law; they
do not, however, believe laws exist independent of human construction.
Like legal positivists, they accept that the law is a product of human society and politics. Unlike
legal positivism, however, interpretivism contends legal practice is justified by reference to
outside values, and argues that the act of interpretation is actually part of the process of making
and defining law.

6. JOHN RAZ
As a pupil of H. L. A. Hart, Raz has been important in continuing Hart's arguments of legal
positivism since Hart's death.
He famously argued that we must be able to identify legal norms without recourse to moral
argument, because the point of a legal system is to provide a framework for social interaction in
contexts precisely where there is no agreement about moral principles.
Here we can therefore see good moral reasons for insisting on objective criteria for identifying
valid legal norms, if we hope to sustain a legal order that can be respected by citizens of widely
divergent moral views.
Apart from that, he also edited a second edition of Hart's 'The Concept of Law', with an
additional section including Hart's responses to other philosophers' criticisms of his work.
It is important to note that Raz has also argued contrary to Hart, stating that the validity of a law
can never depend on its morality.

SEPARATION OF NATURAL LAW AND POSITIVE LAW

1. Natural law theorists such as Plato, Aristotle and St. Thomas Aquinas argue that a law is only just
if it promotes the common good.

Legal positivists like John Austin, H. L. A. Hart, and Thomas Hobbes argue that a law is legitimate
if it has been enacted through the proper channels by someone with the power to do so
regardless of the contents of the law.

2. Natural law theorists posit that the source of law is divine, or can be discovered or formed
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according to what is just and will promote common good.

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Legal positivists argue that for the source of law to be legitimate, it must come from a source of
power. For Austin, this source of power must be the person or persons the subjects are in the
habit of obeying.

3. Natural Law theorist St. Thomas Aquinas argues that neglecting God’s law or the universal
happiness makes law unjust. Aquinas advances that an unjust law is not a legitimate law and
does not have to be obeyed.

Legal positivist John Austin contrasts this view by contending that legitimate law is nothing but
commands from a sovereign to the people who must obey him, backed by credible threats and
sanctions.

4. Natural law subscribers believe that the ultimate good is the greater good and law is ordered to
serve the wellbeing of man.

Legal positivists, Austin in particular argues that people are obedient to the letter of the law
because if they do not, then they would be punished by force. Fear becomes a motivator.

Hobbes contends that a reasonable person would give up certain rights and willingly submit to
the authority of a sovereign to maintain protection and peace in a society.

CRITIQUE OF LEGAL POSITIVISM

1. Purposive interpretation- The way statutes and constitutional provisions are interpreted in line
with their purposes or with the purposes of particular areas of law has seemed to some to be
evidence that the distinction between ‘law as it is’ and law as it ought to be’ is not as sharp as
legal positivists make out make out. (Fuller 1958: 661-9: cf. Hart 1958: 606-15)

2. Customary law- Legal systems which recognize “customary law” often characterize judges
applying such laws merely recognizing existing standards. The question is whether to treat such
“recognitions” as judicial legislation or at face value

3. “Landmark case” Where courts change radically what most judges and commentators had
assumed the law to require, but the courts insist that they are merely clarifying existing law( e.g.
Dworkin 1977:22-31 in Donoghue V. Stevenson 1932) while a legal positivists could simply refer
these cases as instances of judicial legislation, the judges and commentators frequently resist
such characterization, preferring the view that law “works itself pure”

4. Common law reasoning- While there are a variety of theories of what should be going on in
traditional forms of common law reasoning, it could be argued that this form of reasoning gives
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instances of a norm being valid law because of its moral content rather than being based on a
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LECTURE 4: SATURDAY 12TH OCTOBER 2013- 8.00-11.00AM (LECTURE HALL B5)

TOPIC 4: MARXIST LAW THEORY

INTRODUCTION
In a legal discipline like jurisprudence, Marxism is unique because it is the only school of thought
that has openly and directly denigrated law, which it considers to be a tool in the hands of the
capital-owning class of the society for the oppression of the labour-selling section thereof, the
proletariat.
It has even predicted that some day in the future law would become unnecessary and cast out
from the society forever.
Marxism, named after its main proponent, Karl Marx (1818-1883), is the intellectual wing of the
political ideology called socialism. (Recall that socialism stands against almost everything that
capitalism stands for).
Marxism is uncomfortable with the oppression by the bourgeoisie of the proletariat.
It employs several sub-themes to drive home its point about the irreconcilable differences
between capital-owners and labour-sellers.
Marxism can be taken to be a socio-economic doctrine, a holistic philosophy, a physical method
of analysis or political ideology.
The Marxist theories of law and the state are constituted from the writings of
scholars/philosophers with Karl Marx as the basic theorist.
It is suffice to note, however that Marx did not invent a new the concept from which he
developed his theory.
He partly applied a scientific approach to existing ideas, re-conceptualized and gave them a new
meaning and also turned them into revolutionary ideas.
Marx borrowed largely from the works or ideas of “idealist” Friedrich Engels (1770-1831) whose
work comprised of three major doctrines namely; dialectical materialism, laws of economic
production, and historical materialism. Marxist jurisprudence reflects these doctrines.

SCOPE OF MARXISM

Marxism – a term derived from its main proponent, Karl Marx, is a comprehensive and multi-
disciplinary study covering disciplines such as sociology, politics, history, economics, etc. Note
that there are, however, fewer writings about the Marxist school of thought because it
relegated law to the background, or because it failed to give pride of place to law in its analysis
of social phenomena.
In addition to Karl Marx, other proponents included Friedrich Engels (1820-1895) and Vladimir
Lenin (1870-1924).

KARL MARX (1818-1883)

Karl Marx, a son of a lawyer, was a student of jurisprudence.
He got his training from the University of Bonn and the University of Berlin where he was
overwhelmingly influenced by the philosophy of Hegel (1770-1831).
Marx was of the view that jurisprudence is much more than static analysis and argued that the
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study of jurisprudence must necessarily include a study of the nature of law in a society which
was in a flux, ever-changing.
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MARXIST DEFINITION OF LAW

Marxist definition of law is offered by Vyshinsky as follows:

Law is the totality of rules of conduct which express the will of the ruling class and are laid down in a
legislative manner, along with the rules and practices of communal life which are sanctioned by the
power of the State.

The application of these rules is backed by the coercive power of the State in order to secure, reinforce,
and develop the social relationships and conditions which are agreeable to the interests of the ruling
class.

Having come this far in the study of key topics in jurisprudence, we can note that this definition
of law is consistent with that of Austin, Kelsen, etc, save for the reference to ruling class.
Marx believed that study is a means to an end, the end of revolutionary societal transformation.
According to him, “up till now, philosophers have merely interpreted the world, the point,
however, is to change it.”
He was passionate about effecting revolutionary societal change by overthrowing the existing,
dominant capitalist order.
Such revolution would be properly and effectively realized with the well-grounded
understanding of social phenomena such as economics, politics and law.
In other words, such revolution was realizable with the adoption and utilization of knowledge
obtained from multi-disciplinary approach to study or learning.

THE MAJOR CONCEPTS OF THE MARXIST THEORY

1. DIALETIC MATERIALISM

MEANING
Dialectical materialism is a system of thought predicated upon a materialistic conception of the
universe and the examination of the interdependence and the contradictions inherent within all
phenomena.
He believed that the phenomena of nature are dialectical.
Dialectics (dialego –to debate, discourse) is opposed to metaphysical or transcendental
speculation.
And this obviously means that it stands in opposition to the doctrine of natural law.

HEGEL (1770-1831)
Dialectics as a philosophy/theory of knowledge is the art of discovering and testing truths by
discussion and logical arguments.
The concept of dialectics was not original to Marx he built on existing idea of the concept as
propounded by Hegel (1770-1831).
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To Hegel dialectic was the clue or explanation of development it is the theory of the union of
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opposites and he saw the dialectic as the power of the negative at the root of change because

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there was always a tension between any present set of affairs and changes that would take
place.
In his concept of dialectics, Hegel being an idealist applied idealistic concepts for instance he
saw ideas as the makers of the real world and the real world itself was only the external
phenomenal form or manifestation of ideas.
Hegel taught that history is a process in which what was absolute or fixed progressively
unfolded itself revealing more of its true nature in later periods.
In his analysis of society he also depicted civil society as a class clash of social forces to be
transcended as mediated by the state, but that the state itself was abstracted from these
sources both social and historical, which created and conditioned it.
To Hegel also the bureaucracy of the state was a universal class, a paradigm or framework for
the mediation between the civil society and state.

MARX CONCEPT OF DIALECTIC MATERIALISM

In his concept of dialectic, Marx rejected Hegel’s idealistic philosophy and substituted it with
positivism and materialism.
Hence Dialectic Materialism is therefore a combination of Hegel’s dialectics and materialism as
an analysis of human relations within society especially their evolution and development.
Marx therefore argued that the separation of civil society and the state which Hegel formulated
as a matter of principle was in fact only a historical phenomenon the causes of which can be
found and analyzed.
In Marx’s analysis the state was not neutral, that the anatomy of civil society must be found in
the political economy.
To him state bureaucracy used the idea of general/public interest in order to further class
interests.
Where as to Hegel one’s private position could determine his political status to Marx one’s
political status was determined by his personal property relations and accordingly class
differences of civil society became political difference. In essence he opposed Hegel’s ideas and
argued that the state’s claim to appear as neutral was nothing more than a mask for class
interests.
To Marx those who lacked property needed to work as or were workers while those in the civil
society were essentially the dominant class. Workers were therefore less a class of civil society
or were the least in the class of civil society.
The following are essential features of dialectic materialism :
a) Nature is a connected and integral whole: nothing exists as an isolate. Hence
law cannot be understood ‘on its own’: it is connected with, and, therefore,
dependent on, many other phenomena.
b) Nature is in a state of continuous movement and change. A study of
jurisprudence cannot ignore the changing character of the law.
c) Development in all phenomena is characterized by imperceptible, quantitative
changes, which become fundamental, qualitative changes, as evidenced by
the decay and eventual disappearance of some jurisprudential doctrines and
the appearance of new forms of theory.
d) Internal contradictions are inherent in all phenomena, and ‘struggles’
between opposites, the old and the new, are inevitable. Thus, Marxist jurists
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would view some fundamental disputes within jurisprudence as reflecting a

struggle between opposing modes of interpretation. Internal contradictions
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are inherent in all phenomena, and ‘struggles’ between opposites, the old and

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the new, are inevitable. Thus, Marxist jurists would view some fundamental
disputes within jurisprudence as reflecting a struggle between opposing
modes of interpretation.
On Materialism

Materialism stands in direct opposition to philosophical idealism and rejects metaphysics, ‘the
primacy of spirit’, and the concept of ‘rational purpose in nature’. Matter is the basis of all that
exists.
a) The world is material: its phenomena constitute different forms of matter in motion (‘motion is
the mode of existence of matter’). Hence Marxist jurisprudence requires for its methodology no
‘universal spirit’ and no ‘categories of the unknowable’: it must be able to explain in their
totality the phenomena which comprise the law.
b) Matter is primary; mind is secondary, derivative, because it is a reflection of matter. To divide
thought from matter, in jurisprudence or in any other sphere of study, is to fall into error.
(Lenin, in his Materialism and Empirio-Criticism (1913) stated: ‘The material world perceived by
the senses to which we ourselves belong is the sole reality…our consciousness and thought,
however supra-sensible they may seem, are merely the products of a material and corporeal
organ, the brain. Matter is not a product of the mind, but the mind itself is merely the superior
product of matter.’).
c) The world and its phenomena are entirely knowable: experiment and other forms of practical
activity can produce authentic knowledge which has the validity of objective truth. The
processes of discovering objectivity are difficult and never complete. There are no ‘eternal
principles’ and humanity’s concepts change from age to age.

2. LAWS OF ECONOMIC PRODUCTION

Production under capitalism is regulated, according to Marx, by inexorable economic laws.

Those who own the instruments of production (the capitalist class) derive surplus value from the
labour of those who have nothing but their labour power to sell (the proletariat).
The appropriation of surplus value is the key to an understanding of capitalism (and the legal
rules which are created so as to support that system).
In the drive for profit, the capitalist class must intensify the exploitation of the proletariat.
Crises of overproduction develop and existing markets are exploited more intensively.
Society is polarised; economic crisis deepens, immiseration of the workers intensifies.
The workers learn from their struggles and are able to attain a level of organization which
enables them to confront the capitalist class and to ‘expropriate the expropriators’.
The capitalist system, says Marx, produces its own grave-diggers.
Following the disappearance of bourgeois society, ‘we shall have an association in which the
free development of each is the condition for the free development of all’.
Marx posited that production in a capitalist system is based on a system whereby the
bourgeoisie exploit the proletariat who rely on the sale of their labour for subsistence existence.
The former owns or monopolizes ownership of the factors of production (such as capital, land,
industries, factories, etc.) and all the latter has to do to carry on with their miserable existence is
to play second fiddle.
This they do by working for the oppressors or exploiters and in the process sweating it out to
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produce the goods and services that the employers of labour will sell for money.
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He argued that inexorable economic laws determine and regulate production of goods and
services. Those who own the instruments of production (the capitalist class) derive surplus value
from the labour of those who have nothing but their labour power to sell (the proletariat).
From the cheap labour offered by the proletariat, the capitalist classes amass excess products
and profits.
The greed or hunger or thirst for profits and more profits propels the capitalists to exploit the
proletariat.
In no time, such exploitation would trigger chain reaction of economic crises and the discontent
and disaffection of workers.
At this stage, the society would be polarized along the lines of them and us, the haves and the
have-nots.
Thereafter, workers will mobilize to confront the capitalist class, and to “expropriate the
expropriators.”
Ultimately, the capitalist or the bourgeois society shall disappear.
Workers’ success would be a function of a combination of factors including their consciousness,
and the inherent contradiction in the unjust order of capitalist exploitation.
What he meant by this was that the nature of greed and excesses which was inborn in the
capitalist class was always sure to produce a set of circumstances that would enhance the
challenge and the overthrow of the system as a whole.

3. HISTORICAL MATERIALISM (See Marx Work: A Contribution to the Critique of Political

Economy).

Marx contended that the history of society is the history of class struggle.
In other words, there has always been and there will always be struggle on the basis of class.
Your class would determine the nature of your contribution to the struggle. (Recall the radical or
progressive slogan of students from tertiary institutions aluta continua victoria ascerta).
He stated that the mode of production (that is, the understanding of whether you are an
employer or a capitalist or an employee, labourer, proletariat) determines the general process
of socio-economic, political and intellectual life.
As he would say, ‘it is not the consciousness of men that determines their existence, but their
social existence that determines their consciousnesses.’
What this means is that your response to your environment is not conditioned by your own
nature as a person or as a human being but by your own status, standing or placement in the
social rung of the societal ladder.
The nature of capitalism generates or makes conflict inevitable. And revolution will occur only
when the contradictions created by capitalist mode of production cannot be solved or resolved.
Historical materialism has the following features
a) Mode of Production of Fundamental Significance: The mode of production of material life
conditions the general process of social, political and intellectual life. ‘It is not the
consciousness of men that determines their existence, but their social existence that
determines their consciousness.’
b) Inevitability of Conflict: At a certain stage of development, society’s productive forces come
into ‘conflict’ with the existing relations of production. ‘These relations turn into their
fetters. Then begins an era of social revolution.’
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c) Capitalism is the Final Antagonistic Form of Production: The capitalist mode of production
is: ‘the last antagonistic form of the social process of production…the productive forces
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developing within bourgeois [i.e., capitalist] society creates also the material conditions for

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a solution of this antagonism. The prehistory of human society accordingly closes with this
social formation. ‘Marx’s whole canon is an attempt to show that this antagonistic character
is inseparable from the fundamental structure of the capitalist system and is, at the same
time the mechanism of the historic movement’: Aron.

4. BASE AND SUPER-STRUCTURE

The real basis of any given social order is, according to Marx, its economic foundation, and, in
particular, the relations created by the processes of production.
How production is organised, who owns the instruments of production, who sells his labour
power, under what conditions—these matters constitute ‘the basis of production’.

a) Superstructure is a Collorary of Economic Structure

You may call the base your economic strength, your financial power, your wealth. It determines
the superstructure, that is, every other thing that has to be supported by the base.
Upon the sub structural foundation, society builds or erects its legal, political, social and moral
superstructure.
Superstructure includes ideas, ideology, theories, philosophy, beliefs, etc.
As time and chance happen to everything (Eccl. 9:11), material conditions of life happen to the
super structural paraphernalia of all.
You may need to look around you to see how the substructure conditions the superstructure.
For example, the base determines the superstructures of your social status, thinking, the kind of
friends you keep, the make of cars you ride, where you live, the kind of schools your children
attend, etc. In fact, the base is the be-all-and-end-all because, in its absence, the superstructure
would be in a sorry state.
Upon this foundation society erects a legal and political superstructure.

‘The role of production of material life conditions the general process of social, political and intellectual
life.’ This superstructure includes ideas, theories, ideologies, philosophy; it is a corollary to economic
structure.’ ‘Neither legal relations nor the form the State takes can be explained either by themselves
nor by the presumed general evolution of the human mind; both have their roots in the material
conditions of life’: Marx.

i. Superstructure cannot be understood apart from its basis. A correct understanding of law and
jurisprudence in a particular epoch requires an analysis of the relationships which men have
entered into as a direct result of the processes of production within that epoch.
ii. Ideologies, theories of law, do not exist in vacuo; to trace the fundamentals of a theory is a
necessary stage in understanding it. Hence, argues Marx, an appropriate method for any social
study, such as jurisprudence, cannot neglect the economic fundamentals of society. Consider,
for example, the significance of the fact that common law developed during the era of
feudalism, and the resulting effects upon the law of tenures and estates.

b) Legal Rules Reflect the Needs of The Ruling Class (LAW & CAPITALISM)

Legal rules, institutions and jurisprudential theories arise, according to Marx, not accidentally,
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but in response to needs perceived by the ruling group within society.

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Religion, ethics, art, jurisprudence, performs functions which assist in the maintenance of social
cohesion; their claim to reflect and portray ‘eternal categories’ is nonsense.

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As society changes, as the perceived needs of the ruling class change, so the theories of the
social sciences will alter.

5. THE CONCEPT OF CLASS AND CLASS INSTRUMENTALISM

CONCEPT OF CLASS
The concept of class is again one of those not original to Marx, he simply re-conceptualized it.
Marx rejected Hegel’s theory that classes are distinguished simply in terms of sources of
revenue.
He instead argued that classes must be seen as located in the process of production. He
therefore argued that there existed three (3) important large classes in a capitalist society
namely:
a) Wage Labour for workers (proletariats)
b) The capitalists (Bourgeoisie)
c) The land owners
Marx however saw a process whereby land owners would be squeezed out and only necessary
classes of capitalism would remain i.e. the Bourgeoisie and the proletariat.
He also saw some middle and intermediate strata in some societies especially the developing
ones for instance farm workers who were between workers and peasants in character.
He again saw that amongst the proletariats, there were the lumpen proletariats i.e. drop outs of
the system who were unemployed and not located in any particular means of production.
In political terms, Marx also saw that both the lumpen proletariats and peasant were likely to be
reactionary (not progressive) and would sell off their interests and services to the Bourgeoisie.
In other words, he was saying that peasants are not organized and are likely to be misused
politically, socially and economically.
To Marx therefore, the classes that mattered in capitalist society were the bourgeoisie and the
proletariat the others were transient (temporary).
Marx brought out some elements of identifying the dominant class namely
a) The ownership and control of means of production by that class
b) The control of the state by that class.
Marx also argued that objectively class did not exist in a political sense unless it became
conscious of itself.
For instance in the mid 19th century the proletariat was not yet a class of itself, thus individual
form a class only in so far as they have to carry out a struggle against another class usually the
dominating class.

CLASS INSTRUMENTALISM
Because of the very nature of capitalist society, exploitation and struggle are inevitable.
Ideas concerning the law, its foundation and content, are mere reflections of the unrelenting
class struggle which is at the basis of social activity.
Objectively, jurists do not, because they cannot, stand aside from a struggle of which they are an
integral part.
Jurisprudence is to be interpreted as an aspect of the class interests served, consciously or
unconsciously, by jurists.
Class instrumentalism has the following sub-themes or concepts (epochs)
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a) Law is an instrument of class domination

Law is perceived by Marx as an instrument of class domination, allowing the ruling class to
control the working class.
Enactments, regulations, the legal apparatus, no matter how beneficial and disinterested they
seem to be, are methods of ensuring the continuation of the economic and political status quo.
Law is sacred to the bourgeois, for it is enacted for his benefit.’

b) Impossibility of a neutral jurisprudence

A ‘neutral’, ‘disinterested’, jurisprudence is a fiction.

Marxist jurists have attempted to show that behind the tenets of jurisprudential movements in
this century may be discerned a concern for the protection and preservation of the interests of
the ruling class.
Concern for ‘natural rights’, ‘the rights of property’, is a mask for intellectual activities aimed at
the maintenance of a system based upon economic exploitation.
Jurists become, in effect, ‘hired pugilists’, defending a ruling class, ‘indulging in a rhetoric of self-
praise and dogmatism’, and attempting to perpetuate patterns of class domination.
Jurisprudential theories are not ‘isolates’; they can be interpreted only within the context of
economically-determined relationships.
The process of unraveling these relationships demands an awareness of the historical
development of classes.
In a celebrated passage from the Communist Manifesto (1848)—a review of the history of
society, and a ‘call to arms’—Marx addresses the doomed bourgeoisie:

‘Your jurisprudence is but the will of your class made into a law for all, a will whose essential character
and directions are determined by the economic conditions of existence of your class… Behind your
jurisprudence is your concern for the maintenance of your economic superiority. Your law is a mere
expression, a rationalization, of that concept.’

c) Jurisprudence as legitimization

Because law and jurisprudence implement what is required by the dominant economic group
within society, jurisprudential ideas tend, according to Marx, to ‘legitimize’ the existing social
structure.
Property rights are exalted; attempts by the exploited to combine and improve their bargaining
position are anathematized as interference with ‘natural forces’, and the withdrawal of labour,
in the form of strikes, is categorized as ‘anarchical’.
The favoured form of jurisprudence is that which views the status quo as the result of the
workings of an ‘invisible hand’, guiding society towards freedom and prosperity.
So runs the Marxist view of ‘legitimization’.

6. STATE AND LAW (THE COMMUNIST MANIFESTO)

In Marxist thought the state like the law was an expression of the class relations.
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It arose as an instrument of class domination with the rise of classes in society. In other words
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According to Marx in the “communist manifesto” the Executive of modern state is reminiscent
of a committee for managing the common affairs of the Bourgeoisies.
Hegel and Marx traced the origin of the state and other social institution to the division of labor.
That at every stage of production and every mode of production there is a political organization
which corresponds to the stage which supported the current dominant class or classes.
Again that a state may at times represent not the whole class but sections of the class. Similarly
that at other times, the state may be relatively autonomous from all social classes as in typical
Bonarpartist state where parties/classes are still struggling or feuding for control and no
particular class has succeeded.
For instance in UK the Prime Minister and his Executive are the ruling class but they do not
control the means of production, while in most African Countries the president and the people
around him are the ruling state and control directly or indirectly the means of production.
It was Nicos Poulantaz who fully explored the idea of the relative autonomy of the state, but
argued that whatever autonomy it may have in any given time; the state remained
fundamentally serving the purposes of the ruling or the dominant class in a stable situation.
More so that in spite of the fact that the state serves the interest of the dominant class hardly
does this through the law, the state has to maintain a minimum social stability and coherence of
the society and for this matter it may take measures reflected in the law that may appear
neutral such as
a) Taxation of both the workers (labour) and owners of the means of production (capital)
b) Passing legislation for general social, good e.g. to protect the environment or maintain social
infrastructure, labour laws protective of workers etc
c) The state must also respond to pressures from below and therefore may pass legislation as a
result of that pressure e.g. in favour of peasants, workers or other disadvantaged groups
such as women.
According to Marx, the function of the law is to obscure power and class relations, for instance
the legal form we refer to as the right to enter freely in to contracts, but in the absence of
equality of bargaining power this freedom is illusionary.
That the legal form/law is an ideological cloak which pretends neutrality and therefore equality
before law is a falsehood, because by appearing in a neutral form, the law serves to legitimize
and justify unequal class and social relations.
According to Collin Summer “Law is a tool used by the state to impose its interest on the civil
society and to sustain itself in power e.g. international law by super powers.
In spite of its outward trappings of power and the support given to it by legal theories which
tend to sanctify the basis of its operations, the State is viewed in Marxist jurisprudence as no
more than an aspect of superstructure, resting upon an economic basis whose contradictions it
mirrors.
The State did not exist, according to Marxists, before the emergence of classes; its subsequent
growth mirrors the burgeoning of a class system.
Within capitalist society, the State is merely ‘the executive committee’ of the bourgeoisie, ruling
on its behalf and utilizing a legal apparatus which is based upon the threat of coercive action
against those who seek to overturn the existing order.
In the words of Marx’s collaborator, Engels (1820–95), the State is ‘the form in which the
individuals of a ruling class assert their common interests, and in which the whole civil society of
an epoch is epitomized’.
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Jurisprudence assists the State by providing an ideology which, under the guise of an objective
analysis of the role of the State, underpins its dominant, exploitative role and objectives.
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7. THE WITHERING AWAY OF STATE

All phenomena are affected by change and eventual decay; the State is not, therefore, eternal.
Marxists have prophesied that it will wither away when a triumphant revolution replaces ‘the
government of persons by the administration of things’.
When classes disappear, following the revolution, there will be no need for a legal apparatus
which is the expression of class rule.
Exploitation and poverty—the root causes of criminal conduct—will vanish in the classless
society.
The State will disappear gradually. During the transitional period from capitalism to socialism,
new forms of law and a new jurisprudence will be required.
As man develops into ‘a group creature’, he will have no need of codes and rules, and the very
need for an institutionalized law will vanish.
According to Marx and Engels the state and law in the historical terms are temporary
phenomenon they are not eternal.
In their conceptualization of socialism and communism, they argued that with the abolition of
classes under communism, the power of the state would disappear and the government
functions would transform into simple administrative ones. Further that the outward
manifestations of the state such as bureaucracy the judiciary, police, prisons, army etc would
disappear. See his “Critique of the Gotha Programme” Marx argued that in the transition from
capitalism to socialism then to communism, the state would be nothing but the revolutionary
dictatorship of the proletariat”.
In Marxist terms thus it is only under communism (classless society) that the bourgeoisie society
will disappear as there will not be need for the rights because rights exist only in opposition to
the rights of others.
It is therefore under communism that the principle of each according to his ability and each
according to his need would apply.
Engels further argues that when the proletariat ceases to take power and transforms the means
of production, first into state property it puts an end to itself as the proletariat, it puts an end to
all class differences and when the workers state takes possession of the means of production, in
the name of society this is the last independent act as a state.
Further that the interference of state power becomes superfluous in one sphere after another
an ceases by itself. The government of persons is replaced by the administration of things in the
direction of the process of production and according to classical Marxism, the state is not
abolished it withers away.

8. SOME DIVERSIONS

Marxists believe it to be a waste of time when workers believe piecemeal improvement in

welfare package can take them anywhere.
Late Afro-beat king, Fela, alluded to this in one of his songs. They believe that asking for
improvement in social rights in the name of revolutionary struggle is to confuse means with
ends. They contend that achieving social rights, or equal pay are mere diversions (means) in the
journey to the main destination of a totally classless society (end).
They note that striving for change in the law ignores the fundamental purpose of all law in a
bourgeois society, which is to support existing social structure.
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Also, they observe that the rule of law was a decoy to lull the oppressed into the belief in the
neutrality of law and the apoliticality of jurisprudence.
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CRITICISM OF THE MARX THEORY

1. The philosophical basis of Marxist jurisprudence has been criticized continuously by those who
argue that dialectical materialism is flawed, that there is no proof of the validity of Marx’s
interpretation of history, and that the ‘class-struggle concept’ of social development is a
simplistic view of a very complex phenomenon.
2. Attention has been drawn, in recent years, to the quality of the legal systems erected in Marxist
States on the basis of Marxist jurisprudence. Common to those States has been a rejection of
the rule of law and a continuous abuse of human rights. Critics suggest that this is not
accidental; Marxist jurisprudence, it is argued, contains within its tenets the seeds of an
intolerance from which totalitarianism will inevitably burgeon.
3. Marxism has been much enriched by its multi-disciplinary approach. And because the doctrine
focuses on the material conditions – of most labourers, workers, employees, the downtrodden,
the dispossessed, etc, – across the globe, it commands universal appeal. However, its blueprint
for the overthrow of capitalists is highly controversial and debated.
4. Basically, Marxism scorns the discipline of law because it sees it as filled with capitalist values,
because it ministers to the welfare of the capitalist creed. With this mindset, it could not
recognize the crucial role law could play in enhancing the lots or boosting the material
conditions of the proletariat. Notice that there have been cases where genuine legal reforms in
some legal systems have, in fact, elevated persons who were hitherto proletarians into the
capitalist class. This implies high social mobility. And if there is such mobility, proletarians will
not answer Marxist call to effect revolution in the society.
5. Marxism does not pay any regard to human rights, or rule of law. It may not be a coincidence
that the countries that subscribed to the doctrine were ruled by dictators who oppressed the
people under the guise of instituting an egalitarian, classless, socialist or communist system of
governments. Contemporary examples include North Korea, Cuba, etc.
6. Also, despite the beauty of the Marxist design, it has not stood the test of time. It is true that
the gross inadequacies of the capitalist system justify alternative system of statecraft, including
Marxist socialism. But because of the inherent contradiction in the ideology, it lost its relevance.
For example, the ideology promoted the introduction of a classless society despite the fact that
inequality is a fact of life. Again, it advocated the abolition of law notwithstanding the time
honoured reality that a society lacking in rules and regulations is one propelled by social
Darwinism (survival of the fittest), and driven by Hobbesian state of nature where life is short,
nasty and brutish. Such society is inherently anarchic.
7. Note that the internal contradiction of the ideology probably led to its collapse in the USSR,
former Eastern Europe (including Poland, Bulgaria, etc.) towards the end of the 1990s. What the
collapse probably demonstrated is the failure of the socialist system. It is worthy of note that
the countries in question have now embraced liberal democracy and capitalist ideology.

IMPORTANCE OF MARXIST THEORY IN JURISPRUDENCE

The Marxist theory is important as a critical critique standard for existing legal systems or forms
of political systems.
It is a method of analysis and a guiding principle for revolutionary social change.
Among the positive features of the Marxist school of jurisprudence are the following
a) The Marxist analysis of the society has emphasized the undeniable importance of the role of
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productive relations as a factor affecting social and legal philosophy, legal theory neither
exists in nor arises from, a political and social vaccum, context often helps to explain
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b) Marxist jurist may have performed some services in stressing the changing nature of law.
Exploration of change and the search for the real determinants of variations in legal
procedures are important aspects of jurisprudential thought and the Marxist emphasis on
change serves to remind all jurists of the nature of the law’s texture.
c) Marxist jurists have drawn attention to the importance of the history of legal development.
Contemporary law should perhaps be viewed as part of a process of evolution and it is only
when it is studied in the light of those casual relationships explaining the chronicles of the
known past that a more complete understanding may emerge.

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LECTURE 5: SATURDAY 19TH OCTOBER 2013- 8.00-11.00 AM (LECTURE HALL B5

TOPIC 5: HISTORICAL & ANTHROPOLOGICAL SCHOOL OF LAW

BACKGROUND

Unlike manna the law does not fall from the sky.
It tends to develop as an expression of a society’s peculiar culture, values and mores.
This historical view of the genesis of law was highly influential in the 19th Century Germany and
its adherents are often described as belonging to the so called Romantic Movement.
This era coincides with the growth of intellectual, art, culture, literature and music in
Europe.(1800-1850)
The school shared the positivist’s misgivings about the abstractions of natural law, though it
rejected their view that law was manufactured by calculated or deliberate preference.
It was also a revolt against the scientific rationalization of aristocratic school and political norm
of the age of Enlightenment and a reaction against the scientific nature.
Law it contended was the result of historical development.
A related theory of the nature of law is based on the contention that it should be examined not
just in modern states but also in primitive ones as well as in “non-state” contexts such as
voluntary clubs and societies, religious institutions, universities and even international
organizations.
Legal theory should take account of the development of law in these other contexts or risk being
incomplete.
It is this concern that has led some theorists to the subject of anthropological jurisprudence
which investigates “simple” societies in order to discover the nature of law and legal systems.

ESSENCE OF THE HISTORICAL APPROACH

The historical school of jurisprudence is built on the belief that the study of existing laws
requires an understanding of its historical roots and growth.
It tends to answer the following jurisprudential questions
a) To what extent has today’s law been moulded by its historical development?
b) To what degree do contemporary legal doctrines and institutions bear the mark of past
centuries?
c) Is it possible to discern long term trends in legal history?
These and similar problems can be solved, it is suggested, only by examining and interpreting
the history of the law.
One jurist has described law as a “frozen history” in so far as its study and indeed, its practice
involve reference to records, reports and other historical documents of the past.
The historical approach to jurisprudence may be considered, therefore to derive from the very
nature of law and legal process.

IMPORTANCE OF HISTORICAL JURISPRUDENCE

History is a record of our past. As man has a past so does law.

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The importance of the historical school of jurisprudence cannot be over-emphasized.

Apart from standing in opposition to the natural law school, the historical school is unique for
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its emphasis on the relevance of generations past to the present and the future.

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THE EARLY CONTRIBUTORS

HERDER
Stressed the unique character of every historical period, civilization and nation.
Every nation possesses its own individual character and quality and none is intrinsically superior
to others.
He had a belief that different cultures and societies developed their own values rooted in their
own history traditions and institutions.
To him a bureaucratic state, “Robbed men of themselves” and was a substitution of machinery
for life.
HEGEL (1770-1831)
Viewed the state as transcending individualistic interest
He did not advocate for an authoritarian regime
He regarded the state as a means of securing national freedom

BURKE (1729-97)
An English writer attacked the theory and practice of the French Revolution and urged a study of
the lessons of history which for him emphasized the importance of status and hierarchy within
society.
The guide to a nation’s destiny was to be found in its history, religion and tradition.

HUGO (1764-1861)
A professor of Gottingen University, taught that law could be understood only through a
people’s “national life” since it was no more than an expression of that life.

Out of these ideas arose the Great German Historical School which is mostly associated with Von
Savigny

THE MAIN PHILOSOPHERS OF THE HISTORICAL SCHOOL OF LAW

VON SAVIGNY (1779-1861)

Von Savigny was a Prussian (now German) statesman and historian.

The basis of Savigny’s conviction derived from his experience of the French Revolution and the
Napoleonic conquests.
In the aftermath of the destruction of the French, revolutionary ideology guided by the peoples’
reasoning flourished. To Savigny and other like minds, this was unacceptable.
This is essentially because embracing such philosophy would make mincemeat of the tradition
and mores of the people.
In fact, such idea would denigrate the traditional institutions to which the people were
accustomed.
According to him, the essence of the law would be discoverable through the understanding of
the spirit of the people, the volksgeist.
Savigny’s tract entitled Of the Vocation of Our Age for Legislation and Jurisprudence (1814)
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summarized his historical approach to law as follows:

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We first enquire of history how law has actually developed among nations of the nobler races ... That
which binds a people into one whole is the common conviction of the people, the kindred consciousness
of an inward necessity, excluding all notion of an accidental and arbitrary origin.

He saw law as reflective of the spirit of the people which he referred to as the Volkgeist.
To him, the growth of legal principles is not in vacuo, not revolutionary, not accidental but
evolutionary.
He believed that legislation does not, as law does, bear the peculiar marks of the people.
Laws are to be found, not made, and are idiosyncratic and reflective of the volkgeist.
According to Savigny, legal development passes through the early stage of unwritten custom,
then codification of those customs and, lastly, purposeful legislation.
The evolution of law is equally tied to the people’s language and the totality of its beliefs
system.
However, as the law becomes more complex, it is easier to lose contact with customs or the
volkgeist.
The reasons for this are twofold
a) Division of functions and classes, and the technicalization of the law.
b) On the second reason, Elegido suggests that there is no indigenous comparator for such
legal concepts as, for example, CIF contracts or land registration.
On the fate of legislation in a State, Savigny states that legislation is of subsidiary importance in
legal development.
According to him, ‘living law’ emerges neither from the commands of the sovereign nor from
the arbitrary will of a legislator but from the people. In this regard, Savigny states that legislation
would be effective only when its contents reflect the values and virtues of the people’s customs.
It should be recalled that Savigny said this despite the fact that he was the head of the Prussian
Department for the Revision of Statutes.
You should contrast Savigny’s worldview with Austin’s command theory which ties legal
development to the un-commanded commander.
Perhaps, because he was a scholar of classical Roman law, he relied on Roman law for guidance
in his exposition of the legal path that was befitting his country.
To him, Roman law seems to have ‘eternal significance’ for the intellectual underpinning of the
volksgeist. For example, Savigny’s History of Roman Law in the Middle Ages (1831) is suggestive
of the existence of concepts bordering on the ‘nature of things,’ or natural law.
Unlike the claim made by natural law theorists, Savigny canvassed the view of legal relativism. In
other words, there is no universal law as every law is culture specific and limited by time, space
and geography.
The implication of this position is that law is not as durable as the natural law school suggests
and, more important, its contents are a function not of metaphysical demands but of the
exigencies of the society in question.
With this background in mind, the following could be said of the historical approach to law as
canvassed by Savigny:
a) The concept of received law is anathema;
b) Law is inferior to the custom of the people. Therefore, custom of the people must be their laws;
c) Law personifies the people, and signifies a paradigm of their values;
d) There is no universal law. The universality of law is limited by geography and culture;
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e) Law is not static. It is amenable to development;

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According to him, the growth of law is a function of the interface or interaction between one
generation and another generation.
The strength or weakness of the law is traceable to the people.
Law and language flourish when the people flourish and die when the people lose their
individuality.
Therefore, he said that: Law grows with the growth and strengthens with the strength of the
people and finally dies away as the nation loses its nationality or as a people loses its
individuality.
The morale here is that law exists to serve humankind, not the other way round.
Consequently, there should be no room for unjust laws or laws that are inconsistent with the
aspiration of the people.

JURISPRUDENTIAL CONCEPTS OF SAVIGNY THEORY

CONCEPT ANALYSIS /INTEPRETATION

History as an aid The ‘historical movement’ in jurisprudence reflects the belief that a
to understanding deep knowledge of the past is essential for a comprehension of the
present.
A study of existing legal institutions and contemporary legal thought
demands an understanding of historical roots and patterns of
development.
Two jurists are selected for comment, Friedrich Carl von Savigny (1799–
1861) and Sir Henry Maine (1822–88).
Savigny, a Prussian statesman and historian, viewed law as reflecting a
people’s historical experience, culture and ‘spirit’. For him, ancient
custom guides the law; the growth of legal principles is evidence of
‘silently operating forces’ and not the result of deliberate decisions.
Maine, the first professor of comparative jurisprudence at Oxford,
suggested that legal ideas and institutions have their own course of
development, and that evolutionary patterns of growth may be deduced
from historical evidence.
Savigny: the ‘spirit Savigny lived during an era dominated by the effects of the French
of the people Revolution and the Napoleonic conquests.
The destruction of the French feudal order, the spread of revolutionary
ideology and the belief that, henceforth, ‘the general and legislative will’
of peoples was to be guided by reason, produced in Savigny and many
other European jurists a deep and abiding hostility to the philosophy of
the revolution.
Concepts of liberty and equality were rejected in Germany, where a
reaction set in; authority, tradition, ‘the creative spirit’ of the people’s
folklore, was stressed. Cosmopolitanism was rejected; the creative role
of ‘national character ‘was emphasized.
The origin and essence of the law would be discovered by an
understanding of the people’s spirit—the Volksgeist.
Kindred consciousness Savigny’s tract, Of the Vocation of Our Age for Legislation and
Jurisprudence (1814), written as an answer to those who urged the
preparation of a civil code for a united Germany, set out the essential
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features of his outlook:

‘We first enquire of history how law has actually developed among nations of the
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nobler races… That which binds a people into one whole is the common
conviction of the people, the kindred consciousness of an inward necessity,

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excluding all notion of an accidental and arbitrary origin.’

Custom and the people Savigny states: ‘All law is originally formed in the manner in which, in
ordinary but not quite correct language, customary law is said to have
been formed: ie, that it is first developed by custom and popular faith,
next by jurisprudence—therefore, by internal silently operating powers,
not by the arbitrary will of a lawgiver.’ The customs of a people embody
(‘externalise’) its common consciousness and from them law grows in an
organic, unconscious fashion.
a) A people’s laws embody ‘the popular genius’.
b) Law seems to resemble language in some aspects.
c) Law and language evolve gradually, reflecting a people’s evolving
characteristics.
d) Law and language are essentially non-static: both flourish when the
people flourish; both die when the people loses its individuality. ‘For law
as for language there is no moment of absolute rest.’
No laws have universal validity; they have application to specific peoples
only.
The place of legislation and Savigny suggests that historical research reveals that legislation is of
lawyers subsidiary importance in the development of law. The ‘living law’ does
not emerge from the commands of a Sovereign or the arbitrary will of a
legislator; rather does it develop organically from the complex amalgam
of reason, intuition, custom, instinct, etc. ‘Law comes from the people,
not from the State.
Legislation reflects harmony Legislation will be effective only when it is in harmony with the people’s
with the people voice and deep aspirations and when it reflects the needs of the people.
This is not to decry legislation. (Indeed, Savigny was himself head of the
Prussian Department for the Revision of Statutes.).
He emphasises the point that a law which is in conformity with the
needs of the people, which expresses their requirements at a particular
stage in their historical and spiritual development, will be valuable. A
law which ignores the significance of the people’s developmental stage
will be futile.
Lawyers are trustees for the As law becomes more technical, with the advance of civilization, a
people division of labour emerges: in the sphere of matters concerning the law,
the people will be represented to a growing extent by specialists—
lawyers—whose task is to enunciate and elaborate legal principles in a
formal style.
Those principles remain rooted, however, in the consciousness of the
people. Lawyers are trustees for the people.

SUMMARY OF THE SAVIGNY TENENTS

The concept of received law is disliked by whoever it is imposed to.
Customs of the people are superior to the law. The custom must be their law and not vice versa
There is no universal law. The universality of law is limited by geography and culture of the
people
Law is amenable to development and not static as argued in the natural school of jurisprudence
Law comes from the people and is not made. There is no law giver.
Law personifies the people and signifies a pattern of their values
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Growth of law is a result of interaction between one generation and another

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Savigny describes law as a reflection of people’s spirit which he called Volksgeist and therefore, a
received law can never be effective neither can it acquire national character.

AGREEMENTS
1. Any attempt to bridge or combine any law that is not of a particular “people” would corrupt,
pollute, tamper with the national spirit and would hinder or be inimical to the development of
the law
2. Where the law, develops as a result of custom it will be easier for everyone to understand and
accept it as compared to imposed foreign law.
3. The state will spend less time and money educating its people on the law and trying to enforce
it.
4. Borrowed laws may not be applicable in some nations for instance it was not possible
incorporating the English family law into the Kenyan system due to the presence of different
customs.
5. One of the major reasons for the resistance during the colonial period was the fact that the
colonialists were trying to impose their foreign laws onto the local communities who already
had their own customs and beliefs.
6. Judges and other law makers are also part of society and the volkgeist, therefore even as they
make laws they are in accordance with the people’s spirit. See Lord Denning in the case of

Nyali vs. AG

‘’It is recognition that common law cannot be applied in a foreign land without considerable
qualification. You cannot transplant it to the African continent and expect it to retain the tough
character which it has in England. It will flourish indeed but it needs careful tending”

DISAGREEMENTS

1. People are different; thus saying a law is a reflection of the national spirit, is a fallacy because
people cannot all think in the same way.
2. Even where unity of a people is undoubted, within that main group, you will find subgroups.
Savigny himself acknowledged this and called these subdivisions, inner circles. Creating division
within that common spirit.
3. Savigny nowhere answers the question ‘what is a people?’ or ‘what is the criteria for
determining the degree of unity?’
4. Savigny assumes that the collective conscious possesses some kind of metaphysical personality
distinct or separate from the members comprised in the group. There is no proof of this national
spirit and it assumes a unity which is almost non-existent. National spirit can never be perfect.
5. Savigny’s statement ignores the fact that some nations are controlled by ruling minorities and
the manner in which these rulers may impose new patterns on their subjects.
6. Savigny does not take into consideration the introduction of alien law and custom by peaceful
penetration.
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CRITICISM OF SAVIGNY’S THEORY

1. Criticism of Savigny’s doctrine ranges from condemnation of the concept of the Volksgeist as a
reactionary, unscientific fiction, to a rejection of his version of the relationship of custom and
legislation.
2. Savigny’s view of history appears to have been highly selective; he seems to have written history
solely in terms of his own time. In particular, his hostility to the French Revolution coloured his
view of historical development as a whole, leading to an undue reverence for the past with little
comprehension of the forces which led to revolution in his own day.
3. The Volksgeist is rejected by many critics as a mere fiction, cloaking a narrow and nationalistic
attitude. The concept of Volk (‘people’), which Savigny does not define, other than to state that
it resembles a ‘spiritual communion of people living together, using a common language and
creating a communal conscience’, involves a loose statement incapable of proof and of little
value in jurisprudential analysis.
4. What is ‘the communal conscience’? How does the concept apply to a nation which is deeply
divided on legal matters? What of important advances in the law which have arisen from
political and legal conflict within a nation? There are many examples of laws transplanted
successfully (eg, as the result of conquest) from one culture to another. Law is not, in these
circumstances, the result of a people’s ‘feeling for right and wrong’.
5. Law has often been created in times past and present as the result of pragmatic reaction to
immediate problems. Thus, the very important statute Quia Emptores 1290 was a reaction to
specific problems of estates in land; it was in no sense an emanation from ‘the dark well springs
of the people’s unconscious feelings’.
6. Custom—elevated by Savigny into a vital source of law—can be given an exaggerated
significance in the history of legal institutions. It is often of a local nature only and may affect
relatively small sections of a community. It may be unresponsive to changed conditions and,
when this occurs, has to be ignored or supplemented with formal legislation.
7. The American jurist, Gray (see 18.10), criticized Savigny in colourful style. How, he asked, can
law be ‘the product of the common consciousnesses? ‘Take a simple instance… By the law of
Massachusetts, a contract by letter is not complete until the answer of acceptance is received.
By the law of New York, it is complete when the answer is mailed. Is the “common
consciousness” of the people of Massachusetts different on this point from that of the people of
New York?’
8. Savigny’s view that lawyers are the ‘trustees of the people ‘leads Gray to comment: ‘The jurists
set forth the opinions of the people no more and no less than any other specially educated or
trained class in a community sets forth the opinions of that community, each in its own sphere.
They in no way set forth the Volksgeist in the domain of law than educated physicians set forth
the Volksgeist in the matter of medicine.’
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HENRY MAINE (1822-1888)

BACKGROUND
In the after math of Von Savigny’s ideas, there emerged a significant reliance in Anthropological
studies in order to determine among other things the development of law and legal systems
among different societies and to this end anthropology became a useful study into the
consciousness of the society or the people and in advancing these ideas of law by the Historical
school of Jurisprudence, the main exponent of the anthropological studies in Historical school
was Sir Henry Maine in his book Ancient law.

INTRODUCTION
Sir Henry James Sumner Maine was born on the 15th of August 1822 in Scotland. He graduated
from Cambridge university in 1844, and attained a professorship of civil law at the age of 25
He is famous for his thesis Ancient Law.
Maine was describing how law had evolved in the past up until then. He sought to show how
legal concepts are rooted in earlier times, such as the Roman Empire and beyond.
He was the first to apply a scientific, empirical methodology to a subject that had only been
dominated by conceptual approach.
His scope of sources was broad drawn from the Greek, English, Roman, Irish, Hindu and Biblical
law.
He is described as an anthropological theorist. (Anthropology is the study of human kind, past
and present) He emphasizes deeply on man’s instincts, emotions and habits in historical
development.
He understands law as a late stage in a slow-evolving pattern of growth.
For him law was the product of time and place.
He believed that in seeking to understand law the best results could be achieved by making
reference to non-legal topics since eventually we all realize that law is not made by itself or
changed by itself.
He had a duty to ensure that law and social interests did not draw apart i.e. preventing law from
being unrelated to society.
He was a great critic of abstract theories.
Maine’s very wide knowledge of early society leads him to reject theories of law based upon
‘man’s rational nature’.
He stresses the importance in historical development of man’s deep instincts, emotions and
habits, and interprets human history as providing proof of the existence of stages in the
evolution of law.
Law can be understood, Maine argues, as a late stage in a slowly-evolving pattern of growth. In
Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas
(1861), Maine adopted a systematic method of investigating early law and embryonic legal
systems.

MAINE’S STATUS TO CONTRACT THEORY

OVERVIEW
Sir Maine was of the view that human societies have always been based on certain values,
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principles and cultures. Based on those values, principles and cultures, laws have been derived.
The societies have been slow to change these values and principles so the laws also do not
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change. This stage of status-quo has been termed as "status" in his famous statement.

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The contracts on the other hand, according to Sir Maine, have been volunteer dispensations.
The parties to the contract have always wanted to contract on their terms whether or not they
have been sanctified by the contemporary law.
However, humans have always found that their hands have been tied in so far as contracting
terms are concerned and there have always been a desire to change the laws so as to facilitate
the contracts of the will.

1. Stages in the Development of Law

Three distinct, yet connected, stages are discerned by Maine in his survey of the development of
law within early societies: law as the personal commands and judgments of patriarchal rulers;
law as custom upheld by judgments; law as code.
Maine had in mind a universal pattern of development
a) First stage (Command Stage)

The first stage involves law emerging from the personal judgments and authoritarian commands
of patriarchal rulers, e.g. kings.
They often claimed divine inspiration and their judgments were issued separately without any
reference to patterns of principle. Judgments preceded rules: essentially the judge came before
the law-maker.
Law as the personal commands and judgments of patriarchal rulers (Kingly rules):these are
simply adjudications on states of fact and do not necessarily follow each other in an orderly
manner.
In this stage there was unregulated personal commands of someone in authority which were
thought to be divine, absolute rulers dominated eg kings who never did anything wrong. At this
point there were no principles regulating governance. the rulers were above the law and their
commands were to be followed by the inferior.

b) Second Stage (Customary Stage)

The second stage begins when the power of the patriarchs declines following a weakening of
belief in their charisma and sacredness.
Oligarchies of a political and military nature appear, claiming a monopoly of control over the
interpretation and institutions of the law.
The judgments of the oligarchs evolve into the basis of customs, and, what Maine names ‘the
epoch of customary law’, begins and develops.
‘Customs or observances now exist as a substantive aggregate, and are assumed to be precisely
known to the aristocratic order or caste.’
At this stage, the law is largely unwritten, so that its interpreters enjoy a monopoly of
explanation.
But the epoch does not endure, and the spread of writing assists in the creation of a transitional
period leading to the third epoch.
Law as custom upheld by judgment: this came up as a result of the decline of the powers and
rule of the patriarchal rulers. Political and military rulers emerged and claimed control of legal
institutions. These leaders enjoyed a monopoly of interpretation since the customs they used to
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control the people were largely unwritten. The law was exclusively known to a privileged
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c) Third Stage (Codification Stage)

In the third stage, which generally includes a period during which the monopoly of exposition of
the law enjoyed by the oligarchs is broken, codes are predominant.
The Roman Twelve Tables and Solon’s Attic Code are examples.
Maine argues that codes arose at virtually similar points in the relative growth of Greece, Rome,
and some parts of Western Asia.
The codes state the law as it is.
Henceforth law would be characterized by declared purpose, and changes would follow a
conscious wish for improvement in legal procedures and aims.
Law as code: this stage breaks the monopoly of interpretation found in the second stage. Thus
codification of the legal system. He also mentions that although democratic sentiments may
have added to the codes popularity, they were certainly a direct result of the method of writing.
Codification led to the end of primitive law.

d) Fourth Stage (Modification Stage)

The fourth stage consisted of the modification of strict codified laws by the help of legal fiction
and reality which were designed to bring the law into harmony with the progressing society.

2. Further Progress and Nature of Societies

There was historical proof, according to Maine, of further progress in the development of the
law related to the very nature of a given society.
Two types of society were considered in this context: the stationary and the progressive.

a) The Stationary Societies

The stationary societies (and they were the rule) did not move beyond the concept of code-
based law.
Reference to the code decided all legal problems.
This reflected, according to Maine, a general lack of desire on the part of members of a society
to effect any change in the law.
An inflexible law which fettered legal and social development was the invariable result of
reliance upon the certainties of the code.
Static Society: also known as stationery society.
In this society a reference to code based law answered everything. They include most of the
non-western world i.e. societies locked in an unchanging world dominated by family
dependency.
Individuals were bound by the law at home and that was their rule of conduct. Examples of such
societies are the Indian and Chinese.
Status rights such as those being claimed by a woman by virtue of her being a woman paved
way for the rise of contractual rights coming from negotiations between two individuals.

b) The Progressive Societies

The progressive societies (they were the exception) included most societies within Western
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Europe.
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They possessed a dynamism which expressed itself in modification of the law.

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The gap between formal, rigid, legal doctrine and the ‘untidy’, urgent needs of a society in flux
was narrowed significantly.
The result was an expansion of legal institutions and a refinement of legal doctrine.
Progressive Society: They are characterized by the desire to develop. Its distinguishing feature is
the gradual dissolution of family dependency replaced by individual obligation thus a movement
from status to contract i.e. personal condition to agreement. Three features are evident in
progressive society: legal fictions, equity and legislation.

3. The Dynamic Stage of Legal Development

Maine discerned within the history of the progressive societies a characteristic use of three
agencies—legal fictions, equity, and legislation (in that historical order)—each assisting in the
development of the law from rigidity to flexibility.

a) Legal Fiction
Legal fictions are mere suppositions or assumptions intended to overcome the rigidities of the
formal law and designed to advance the interests of justice.
They are used so as to conceal the fact that although the letter of the law remains unchanged,
its operation and effect have been modified.
Maine gives as an example the Roman fiction of adoption. Its object was to ensure the
perpetuation of the family cult or name: a child was handed over by one paterfamilias, X, to
another, Y, so that he would take rank as Y’s descendant within Y’s family.
Legal fictions imply a natural progress from making changes while pretending not to and ease
the harshness of the law and through equity by making exceptions in certain cases lastly
legislation by directing change by virtue of authority to power changing laws in society into
writing and codes.

b) Equity
The growth of a secondary system of law, such as equity, which claims a superior sanctity
inherent in its principles, allows the existence side by side with the established system of law, of
rules and procedures enabling the rigidities of the formal law to be smoothed out, or even
displaced.
The ability of the second system to ‘interfere’ in the established system indicates an advance on
the legal fiction.
Maine suggests that its existence testifies to an advance in the complexity of legal thought.

c) Legislation
In this final stage of development, the enactments of a legislature indicate a peak of legal
achievement.
Jurisprudential thought and political will interact so as to erect an edifice comprising various
forms of law which can be systematized and unified, perhaps in the form of a legislative code.

4. From Status to Contract

‘The movement of progressive societies his hitherto been a movement from status to contract.’
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Maine interprets historical development as showing a basic pattern in which man’s individual
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In early times an individual’s position in his social group remained fixed; it was imposed without
any reference to him and could not be changed by his own efforts.
A Roman slave might be ‘manumitted’ (ie, liberated from slavery) by the efforts of a free person;
but eventually the fixed status of the slave disappeared and he was able to deal with others
freely and reciprocally.
‘Starting, as from one terminus of history, from a condition of society in which all relations of
Persons are summed up in the relation of Family, we seem to have steadily moved towards a
phase of social order in which all these relations arise from the free agreement of individuals.’
Maine interprets historical development as illustrating a move from slavery and serfdom, from
status determined at birth.
An example is the change from the master-servant link to the employer-employee contract.

CRITICISM OF MAINE’S THEORY

1. Lack of Evidence: Diamond, in Primitive Law (1935), pointed out that the very title of Maine’s study,
Ancient Law, indicated a failure to understand that the study of the origins of law demands evidence
as to the beginnings of law ‘both as we know of them in the past and as we see them in the present’.
2. Status does not always lead to Contract: There is no steady growth of the phenomenon of status
yielding to contract. Critics point out that, for example, feudalism can be interpreted as embodying a
move from contract to status. Additionally, contemporary Western society shows much evidence of
the continuing significance of status and gives indications of the prevalence of moves from contract
to status. Industry-wide collective bargaining, protective social legislation, aspects of the landlord-
tenant contract and mortgage agreements, may be interpreted as the creation of novel types of
personal legal relationships which carry some important features of ‘status’.Also in Canada the
status of a single mother is recognized by law and social welfare in advanced countries is status
based. Also seen in affirmative action in the Kenyan context.
3. Over Simplification: Maine is criticized for having presented an over-simplification of the nature and
structure of early society: e.g.
a) Early society does not show an invariable pattern of movement from ‘charismatic judgment’
through ‘aristocratic interpretation’ to code.
b) The ‘rigidity of primitive law’, as portrayed by Maine, is challenged repeatedly by contemporary
anthropologists who emphasize the remarkable adaptation of primitive peoples and the
flexibility of legal arrangements.
c) Maine’s classification of societies appears to have been superseded by the work of
anthropologists such as Childe and Hobhouse, who have produced evidence supporting a
classification based upon the functions of food producers and gatherers, with law emerging at
the point at which ploughing and irrigation became common.
d) Custom is not distinct from law in all early societies, as Maine implied. Further, the patriarchal
system was not universal in those communities: matriarchal systems (which were the result of
specific cultural patterns) were often widespread.
e) In his studies of static and progressive societies he tends to take too much for granted i.e few
societies exist in those categories instead what you find is a little of this and that or a hybrid of
the two.
f) He fails to say what law is instead focuses in descriptive analysis.
g) The codification of custom in the third stage and the modification of strict codified laws in the
fourth stage are not entirely applicable in the East African context. This is partly because of the
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advent of colonialism. The colonialists imposed a new system of laws suited to their subjugation
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of Africa abolishing some of the customary law, modifying it to suit their purpose. Colonized
nations could therefore not move to the 3rd and 4th stages.

IMPORTANCE OF HISTORICAL AND ANTHROPOLOGICAL JURISPRUDENCE

Maine’s contribution to jurisprudence was not so much in his conclusions but in his empirical,
systematic and historical methodology and brought a scientific aspect to the field of law.
Savigny and Maine are now viewed widely as having based parts of their theories upon intuition
or inadequate and misinterpreted evidence. They remain, nevertheless, figures of some
significance in the development of jurisprudence considered as a study of change. Both viewed
history as a tapestry of cultures, beliefs, traditions and events; both stressed the importance of
studying the law, not only as it is, but as it has evolved over time. It is, perhaps, because of the
work of those who pioneered the historical movement that few jurists would now reject the
warning of Michelet: ‘He who would confine his thought to present time will not understand
present reality.’

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LECTURE 6: SATURDAY 19TH OCTOBER 2013- 8.00-11.00 AM (LECTURE HALL B5

TOPIC 6: SOCIOLOGICAL SCHOOL OF LAW

INTRODUCTION
Jurisprudence among its many definitions has been described as being concerned with, “the
nature of law, its purposes, institutional and conceptual means necessary to effectuate these
purposes, the limits of the laws efficacy, the relation of law to justice and morality and the
modes by which law changes and grows historically.

‘Sociology’ was coined by the French philosopher Comte (1798-1857) who gave a much
encompassing approach to the study of society.
He gave great illumination to the fact that man like any other social animal was capable of being
studied in a trajectory that included observation, explanation and prediction.
The sociological school of jurisprudence stresses the actual social effects of legal institutions,
doctrines and practices.
It examines the actual effects of the law within society and the influence of social phenomena
on the substantive and procedural aspects of law. In other words, it empirically examines and
theorizes the interaction between law, legal institutions, non legal institutions and social factors.
It has also been described as “the systematic, theoretically grounded, empirical study of law as a
set of social practices or as an aspect or field of social experience.

SOCIOLOGY AND THE LAW (METHODOLOGY)

Sociology is defined by Faris as: ‘a branch of the science of human behaviour that seeks to
discover the causes and effects that arise in social relations among persons and in the
intercommunication and interaction among persons and groups.’
Human beings are more dependent, sociologists point out, on social organization than is any
other species; hence institutionalized social forms (law, State, etc) are of considerable
significance in the life of a community. The study of law in its social setting, as a social
institution, is the basis of the sociological approach to jurisprudence.
The methodology of sociology, in relation to the study of law, involves a close analysis of the
structure, functions, effects and values of a legal system; this necessitates an investigation of
persons, institutions, rules, procedures and doctrines, so that hypotheses and principles might
be formulated and tested.
Field surveys (such as the collection of data relating to the functioning of aspects of the judicial
system), comparative observation and statistical analysis, should feature in the work of
sociological jurists.
The essence of the sociological view is that law is a social phenomenon reflecting human needs,
functioning as an organized system, and embodying within its fundamental principles and
substantive rules the basic values of a society.
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The discovery of principles governing the law as a social phenomenon remains the key task of
sociological jurisprudence. Pound, in his Mechanical Jurisprudence (1908) wrote of the
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sociological movement in jurisprudence as ‘a movement for pragmatism as a philosophy of law;

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for the adjustment of principles and doctrines to the human conditions they are to govern
rather than to assumed first principles; for putting the human factor in the central place and
relegating logic to its true position as an instrument.’

DEVELOPMENT OF THE SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

Sociological jurisprudence has a long and distinguished history and can be traced as far back as
the writings of Hume who in ‘A Treatise on Human Nature’ argued that laws origin did not lie in
a peculiar common conception of human nature at all. According to Hume, law owes its origins
to social conventions and was in itself a developing social institution.
In addition to Hume’s start on describing law as a social phenomenon, Montesquieu put forward
the idea that law originated out of social custom and good laws therefore had to be in
accordance with the spirit of the society.
During the 19th century, the concept of police state began to wither away and the concept of
welfare state took precedence due to rapid increase in population and social revolutions,
leading to social unsettlement.
Analytical positivism in such matters failed to meet the demands of social stability, giving way to
sociological approaches of law. This came with the rise of modern science jurists who held
unanimously the belief in the possibility of applying the scientific method to study the law and
legal philosophy.
Under the influence of the Comtian positivist sociology, there developed a sociological
jurisprudence having in view the understanding of the role of law in society and the application
of the social sciences to the study of law in action and the rendering of law more effective as an
instrument of social control for the ends which law is designed to accomplish in the civilization
of the time and place.
The development of sociological jurisprudence reflected the inconsistency between many legal
institutions that took shape during industrial capitalism and the economic and political
processes that accompanied the development of the monopolistic and later state-monopolistic
capitalism.
The influence of sociological jurisprudence reached its peak in the first half of the 20th century
in German bourgeois jurisprudence (E. Ehriich, H. Kantorowicz, H. Sinsheimer) and in the United
States, American sociological jurisprudence (R. Pound, O. Holmes, B. Cardozo), in particular,
legal realism brought the negative attitude towards immutable legal norms to a culmination,
stating that in general, the administration of justice was possible without such norms.
After World War II, the sociological school of jurisprudence came under the strong influence of
empirical sociology and came to be treated by a number of authors as a purely empirical
discipline whose primary goal was research on different aspects of law in society.
Jurists over the years like Weber, Durkheim, Pound, Comte and many more also contributed to
this school of thought, forwarding various views on how law can be understood in the wider
context as a social phenomenon theoretically, but also drawing on real and independent studies
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of society.
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It is worth noting that there is no consensus and common thinking that can readily be identified
as the central approach to sociological jurisprudence because of the wide range of areas of
studies that have influenced the development of this school of thought. However, there are
some core basic assumptions which characterize the thinking of a good proportion of
sociological jurists.

The KEY PHILOSOPHERS OF SOCIOLOGICAL SCHOOL OF LAW:

1. JHERING (1818-1892)

To Jhering, law existed to protect the interests of the society and individual interest, but as is
expected, the two interests are often at cross-purposes. When such occasions arise, law
mediates between them to secure and guarantee the satisfaction of human wants.
The problem of society was to reconcile the selfish purposes with the unselfish ones.
Jhering stressed that “law does not exist to an individual as an end to himself, but serves his
interest with the good of the society in view.”
He was of the view that law was aimed at creating unity from diversity. In his view, law aimed at
the good of the society and permitted individuals to realize their purposes. Law in his view was
the mediator, the balancer and the harmonizer. Legal institutions, he argued, enabled man to
add to the quality of his being.
In order to reconcile the individual with the society, it was necessary to balance various
interests, which he grouped in to three:
1. Individual interests
2. State interests
3. Social interests
To reconcile these conflicts the state was to employ both the method of reward (by enabling
economic wants to be satisfied) and the method of coercion.
The point emerging from Jhering’s analysis is that laws are only one type of means of achieving
an end, namely social control.
In his approach he was building on the work of English thinkers like Bentham and Mill whose
utilitarianism may have been said to have influenced his Theory of Purpose.

SUMMARY OF JHERING THEORY OF PURPOSE

CONCEPT ANALYSIS
Jhering: law as a social Jhering’s doctrine of law was based upon ‘social utilitarianism’;
mechanism for the balancing law’s essence could be expressed by reference to its very purpose,
of purposes and interests which was social.
Law existed to protect the interests of society and of the individual
by coordinating those interests, thus minimizing the possibility of
social conflict.
Jhering in Law as Means to an End (1873) said: ‘Law is the sum of
the conditions of social life in the widest sense of that term, as
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secured by the power of the State through the means of external

compulsion.’
Rules reflect purpose Social values, social utility, are all-important in an understanding of
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the concept and functions of the law.

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There is, according to Jhering, no single legal rule which does not
owe its origin to some purpose, ie, some practical motive.
Indeed, law emerges from social struggle concerning purposes; it is
a direct social response to perceived needs and methods of
satisfying them.
Its sole purpose is to achieve desired objectives by guiding and
protecting social interests.
Interests dictate purpose Interests dictate purpose: interests need to be studied if the
purposes of the law are to be comprehended fully.
a) Individual interests ought to be linked to the interests of others
so that social purposes might be fulfilled.
b) The law should ease the pursuit of the common interest, and
the legislator should keep in mind the principle that ‘every
person exists for the world, and the world exists for everybody’.
The reconciliation of interests The object of a society, the very purpose of its existence, is
essentially the securing of the satisfaction of human wants.
There are, according to Jhering, ‘levers of social motion’ which can
be used to this end.
The ‘egoistical levers’ of reward and coercion, i.e., private gain, and
the threat of sanctions where undesirable conduct takes place, may
be utilized in combination with the ‘altruistic levers’, such as the
sentiment of duty.
A coordinated use of these levers makes the achievement of social
ends possible through the balancing of purposes and principles, and
the law assists to this end.
Law aims at equilibrium The true aim of the law is the realization of equilibrium of individual
and social principles and purposes.
The law is, in effect, ‘the realized partnership of the individual and
society’.
Competing interests must be resolved by the impartial mediation of
the law. Let legislators and judges seek to bring interests into
harmony: the legislator will keep in mind the essential purpose of
society, while the judge will be aware of the true social purpose
behind the law he seeks to enforce.
Purpose is all and it is Relative Purpose is all and purpose is relative Society’s purposes and
standards will change from time to time; hence to rely upon
concepts of an ‘immutable natural law’ as an absolute guide to
social and legal activity would be difficult.
‘Purpose is all and purpose is relative.’
There is not necessarily an opposition of individual and social
interests: the individual is interested in the maintenance of effective
social institutions; while society is interested in the protection of
individual rights.
Law aims at creating unity Above all, the law aims at the good of society in its entirety and, in
from diversity attempting to achieve that goal; it creates a unity from diversity,
allowing individuals to realize their purposes, and, in so doing,
creating a strong social fabric.
Legal institutions enable man to add to the very quality of his being;
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individually, man may be able to achieve only relatively limited

objectives, but in collaboration with his fellows within society his
capacities for self-realization are greatly increased.
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The law will provide the institutional framework within which the

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individual’s life can be enhanced. Law is the mediator, the balancer,

the harmonizer.

2. EUGEN EHRLICH (1862-1922)

Ehrlich highly questioned the hierarchical notions of law propounded by theorists such as Hans
Kelsen.
He noted that legal theories that recognized law only as a sum of statutes and judgments gave
an inadequate view of the legal reality of a community.
He drew a distinction between norms of decision and social norms or norms of conduct.
The latter actually govern the life of a society and, under certain conditions, can justifiably be
regarded in popular consciousness, if not necessarily by lawyers, as law.
The point Ehrlich sought to make was that ‘living law’ which regulates social life may be quite
different from the norms for decisions applied by courts, and may sometimes attract far greater
cultural authority which lawyers cannot safely ignore.
He stated that,” society is the sum total of the human associations that have mutual relations
with one another.”
He was interested in social associations that had legal significance, those which evidenced an
‘inner order’.
This inner order of the associations had the characteristics of law long before the formation or
development of law in the positivist sense.
An ordering is evident in the associations which are not due to the imposition of a legal system.
He maintained that this function bespoke the character of law to a more realistic extent than did
legal propositions articulated by courts and legislators.
Ehrlich went one step further than the historical school which simply identified custom as a
source of law rather than law itself.
Ehrlich attempts to pinpoint the social facts (Tatsache des Rechts, translated as “facts of the
law” or as “juristic facts”) controlling the inner order of the associations. They are:
a) Usage
b) Domination (and subjection)
c) Possession
d) Declaration of will (by agreement or testament)
He contends that all man’s ideas come from the observation of reality.
Thus, law being no different, the concept of legal relation in man’s consciousness must,
therefore, be traced to an observation of facts already in existence.
To him, a fact which is an isolated occurrence in society is not a social fact and cannot bring
about social norms and will remain unnoticed by society.
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It cannot be considered a component part of the social order until it has become a common
phenomenon.
Law is seen as being derived from social facts and depends not on the states authority but also
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He drew a distinction between;

a) Norms of decisions which correspond to that which is traditionally understood to be
laws, and
b) Norms of conduct, which govern life in society.
He stated that there will always be an inevitable gap between the norms of formal law and of
actual behaviorisms, therefore, it is up to the jurist and judges to integrate that gap.
To him, there were two sources of law:
1. Legal history and development
2. The living law.

Living law grows within society. It may be so widespread to an extent that it becomes the basis
of the conduct and interaction of members of the society even though it has not been formally
proclaimed to be the law.
A question arises however; what if the living law is damaging to the interest of the people as a
whole or to the greatest happiness of the greatest number? For example: Since corruption
appears to be part and parcel of the society should the Kenyan government find a way to cab
the gap between the current anti-corruption commission and the ‘living law’ of rampancy of
corruption and, therefore, find a way of legislating corruption into existence?
To the extent that Ehrlich did not qualify the applicability of his theory on ‘living law’, we could
take it that his theory would accommodate such legislation of corruption into existence.
However, because we know the dangerous effects of corruption, such proposition would be
unacceptable. There lies the inadequacy of Ehrlich’s theory.
As attractive as his theory may have been or sounded, his failure to make allowance for
exceptions, that is, situations where the living law can or must be suppressed or undermined,
weakens the strength of his theory.
In conclusion, it will be good to note that living law can function best if it harmonizes with the
morals of the society.
There was a time in history when slave trade and racism were living laws. In fact, they were
actually legislated into positive law. But the fact still remained that the practices were evil. That
was until the anti-slave trade and civil rights movements emerged and got rid of those living
laws.

SUMMARY OF EHRLICH THEORY OF THE LIVING LAW

CONCEPT ANALYSIS
Ehrlich: the centre of gravity of ‘At the present as well as at any other time, the centre of gravity of
legal development legal development lies not in legislation, nor in juristic science, nor
in judicial decision, but in society itself’: Fundamental Principles of
the Sociology of Law (1912).
Ehrlich recognizes two vital and complementary sources of law:
legal history and jurisprudence, and ‘the living law’ (derived from
currently-acknowledged custom and the creation of norms by
members of society).
Ehrlich’s analysis of norms Ehrlich differentiates norms for decision and norms for conduct.
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a) Norms For Decisions

Norms for decision are equivalent to what are generally understood
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codes or common law doctrines and intended for the adjudication

of disputes.
They may be considered as the rules and regulations for persons
whose business is the settling of disputes.

b) Norms of Conduct
Norms of conduct are self-generating social rules, dependent upon
no superior sanctioning authority, but effectively governing many
groups and relationships within society.
They form ‘the inner order of associations’ and are accepted by
society. They may often stand in contrast to rules enforced by the
State.
The ‘living law’ This concept dominated Ehrlich’s jurisprudential thought.
‘Living law’ grows within society and may dominate its conduct even
though it does not possess the authority of legal formality. It
reflects the true values of society.
Because the ‘inner order’ of society’s life (its ‘culture-pattern’)
reflects changing values, the ‘living law’ can never be static.

a) Gap Between Positive and Living Law

There is, necessarily, a gap between ‘the living law’ and ‘the positive
law’.
Ehrlich cites the private financial practices within commercial
communities as illustrating this gap.
However, the law often bridges gaps of this nature, as in the case of
the Bills of Exchange Act 1882 and, in our day, the Law of Property
(Miscellaneous Provisions) Act 1989 (in relation to practices
involving the sealing of deeds).

b) Importance of The Gap

Legislators and judges must be aware of ‘the gap’ and must accept
the necessity of giving expression to the community’s innermost
feelings.
Ehrlich defines society as ‘the sum total of the human associations
that have mutual relations with one another’.
‘The living law’ reflects that which binds individuals within
associations.
Where legislators fail to recognize the potency of the law in relation
to social ends, enacted law will cease to mirror social aspirations.
Discovering the Living Law and This vital task for legislators, judges and jurists involves, according
Living Law as An Amalgam to Ehrlich, continuous analysis not only of judicial decisions and
formal regulations, but also of the perceptions and activities of
members of society in their daily lives.
If we wish to understand ‘the law’ as it relates, say, to the
mortgage, it is necessary to study the legislation embodied in the
Law of Property Act 1925, the development of the equitable right to
redeem and the equity of redemption, together with decisions
concerning foreclosure, tacking, etc
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But a much more comprehensive study is required. What is revealed

by the formal language of the mortgage deed? What of social
attitudes to the repossession of mortgaged property?
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mortgaged property? Ehrlich calls for a study, in this context, of the

mortgage in its entirety.
Thus and only thus would ‘the living law’ be revealed as an amalgam
of formalities, current social values and perceptions.
CRITICISM THE CZERNOWITZ EXPERIMENT
In a celebrated example of unusual field work in the realm of
sociological jurisprudence, Ehrlich organized a ‘seminar of the living
law’ at Czernowitz (now in the Ukraine).
Groups of his students were asked to discover ‘the practical realities
of the law’ in that area.
Data were collected and analyzed and contrasted with private
documents, local customs and practices, particularly in relation to
the rules of succession within family groups.
The investigation revealed a profound gap between the customs
and behavior of a variety of ethnic groups and the formal legal code
under which they lived.
This intensified Ehrlich’s belief in the necessity of investigating
extra-legal data when one is examining any aspect of law;
jurisprudence required, therefore, strong links with the social
sciences in particular.

BOUNDLESS JURISPRUDENCE
The province of jurisprudence, declared Ehrlich, must be boundless
because the vital facts of ‘the living law’ are the facts of social life in
its entirety.

MEGALOMANIAC JURISPRUDENCE
Allen, in Law in the Making (1958), refers to Ehrlich’s concept of
jurisprudence as a ‘science of observation’ and points out that a
boundless jurisprudence might be ‘a megalomaniac jurisprudence’.
Indeed, if every legal dispute were to be subjected to the processes
suggested by Ehrlich, ‘scientific justice might perhaps be
achieved…but the parties would certainly be dead before the
forensic process was complete’.

3. DURKHEIM (1858-1917)

Emile Durkheim was a French sociologist and anthropologist and is commonly cited as being the
architect of modern social science and the father of sociology. Much of Durkheim’s work was
concerned with how societies could maintain their integrity and coherence in modernity.
He refined the positivism originally set forth by Auguste Comte, promoting what would be
considered as a form of epistemological realism.
There were many points on which Durkheim agreed with the positivists;
1. He accepted that the study of society was to be founded on an examination of facts.
2. Like Comte, he acknowledges that the only valid guide to objective knowledge was the
scientific method.
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3. He agreed with Comte that the social sciences could become scientific only when they were
stripped of their metaphysical abstractions and philosophical speculation.
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Unlike Max Weber, he focused not on what motivates the actions of individuals, but rather on
the study of social facts.
He explained social facts as “every way of acting, fixed or not fixed, capable of exercising on the
individual an external constraint; or again, every way of acting which is general throughout a
given society, while at the same time existing in its own right independent of its individual
manifestations.”
For him, sociology was the science of institutions, institutions being, “beliefs and modes of
behavior instituted by the collectivity”.
The aim of sociology was stated as being to discover structural social facts. He advocated for
structural functionalism.
Structural functionalism attempts to explain why society functions the way it does by focusing
on the various social institutions that makes up society (for example government, law, religion
e.t.c.).
Its key idea is that society is made up of groups or institutions, which are cohesive, share
common norms, and have a definitive culture.
Durkheim was primarily concerned with three goals:
1. To establish sociology as a new academic discipline.
2. To analyze how societies could maintain their integrity and coherence in the modern
era, when things such as shared religious and ethnic background could no longer be
assumed.
3. Practical implications of scientific knowledge.
To meet these goals, he wrote mainly on:

1) Division of Labor in Society

2) Sociology of Knowledge and

3) Sociology of Religion

Durkheim argued that social facts have, ‘sui generis’, an independent existence greater and
more objective than the actions of the individuals that compose society.
Only such social facts can explain the observed social phenomena.
Being exterior to the individual person, social facts may thus also exercise coercive power on the
various people composing society, as it can sometimes be observed in the case of formal laws
and regulations, but also in situations implying the presence of informal rules, such as religious
rituals or family norms.
Unlike the facts studied in natural sciences, a ‘social fact’ thus refers to a specific category of
phenomena: “The determining cause of social fact must be sought among the antecedent social
facts and not among the states of the individual consciousness.”
In a nut shell, Durkheim’s works demonstrated that he believed in the following:
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All societies have boundaries, the most precise bind being law.
Society is a bounded system.
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Each structure in a society has a specific function. That function maintains equilibrium. All
societies tend towards homeostasis.
Society has a built-in self regulating mechanism tending toward equilibrium.
When change happens within one institution, it affects the other institutions.
All change must be slow, gradual and progressive. Radical change is impossible.(Durkheim
was an evolutionist)
All societies will have various human behavior(s).
The behavior that dominates is that which is the most efficient.
What creates change? The only source of radical change is mutation. They do not adopt.
Punishment is what will influence the content and structure of society.
Durkheim visualizes that the best way to determine how social stability is created and
maintained, is by examining the types of legal structures a society has. There being two types of
legal structures:
1. Repressive (criminal in nature)
2. Restitutive (civil law)
You can tell the kind of solidarity that a society has based on the ratio of recitative to repressive.
Law he explained served two purposes:
1. To define sanctions
2. To prescribe punishment
Laws come from the social structure. The use of power would be to maintain the social
structure.
Legal systems should thus be created when there is a breakdown of the collective conscience.
A shift, caused from a change in the environment (e.g. technology) could cause a breakdown of
the collective conscience.
Durkheim’s works attempted to answer some of the major questions of jurisprudence. They
included:
How societies are formed.
What a legal system is.
What the functions of rules and the laws are.
How a legal system should work, the structure of law and how people ought to behave.
The relationship of laws between each other.
Durkheim was of the view that sociology should be purely holistic, that is, sociology should study
phenomena attributed to society at large, rather than being limited to the specific actions of
individuals.
Critics have however rejected Durkheim’s epistemology altogether, focusing instead on his
Sociology of Knowledge and Sociology of Religion.
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SUMMARY OF DURKHEIM THEORY OF SOCIAL SOLIDARITY

CONCEPT ANALYSIS
Social Solidarity Durkheim viewed the phenomenon of law in remarkable fashion—as an ‘index
to the level of development’ within a community.
Hence the study of law was essential for a fully fledged science of society.
Investigation of the development of early societies revealed varying degrees of
social cohesion which Durkheim spoke of in terms of ‘solidarity’.
Different types of solidarity produced their own forms of law.

a) Mechanical Solidarity
Within early, undeveloped society, men recognized the need for mutual
assistance and the combining of their aptitudes.
Cohesion of a kind existed—‘solidarity by similitude’ or ‘mechanical solidarity’.
In such a society values would be uniform and, because of an absence of division
of labour and the consequent need for a collectivist attitude, individualism
would exist only at a low level.

b) Organic Solidarity
In more advanced societies in which the division of labour was widespread,
collectivism was replaced by individualism.
A strong social conscience would produce an ‘organic solidarity ‘which reflected
the functional interdependence of producers.

c) Division of Labour
‘Division of labour appears to us in a different light than it does to economists.
For them it consists essentially in producing more.
For us this increased productivity is only a necessary consequence, an after-
effect of the phenomenon.
The reason we specialise is not to produce more, but to achieve the new living
conditions that are provided for us’: The Division of Labour in Society.
Law as an External Because law tends to reflect in its concepts and modes of procedure types of
Index social cohesion, Durkheim suggests that it ought to be possible to deduce from
the evidence of a given form of law the type of social organization within which
it flourishes, it flourishes.
Writing on Durkheim in Main Currents in Sociological Thought (1965), Aron
states:
‘Repressive law is, as it were, the index of the collective consciousness in societies with
mechanical solidarity, since by the very fact that it multiplies punishments it reveals the
force of common sentiments, their extent, and their particularization. The more
widespread, strong, and particularized the collective conscience, the more crimes there
wills is—crime being defined simply as the violation of an imperative or prohibition’.

a) Law indicates social norms

Within societies characterized by mechanical solidarity, the law appears strict,
repressive, and its sanctions are applied with severity when social norms are
disregarded.
In Durkheim’s phrase, there is a ‘passionate reaction’ by such a society to those
108

deviations from the norm which offends the collective social conscience.
Within societies characterized by organic solidarity, restitution tends to replace
mere vengeance as an aim of the legal process and social norms are embodied
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The objective is not to punish but to re-establish the state of things as it should
have been in accordance with justice.

b) Law symbolizes morality

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Systematization and Sociological Jurisprudence

Weber (1864–1920) and Pound (1870–1964) pioneered the analytical, systematic approach to
jurisprudence. Law was to be studied as a social institution and the legal order would be
investigated in its setting in relation to other social phenomena.
A sociological review of law would be undertaken.
Weber, a German jurist, economist and sociologist, evolved a synoptic view of legal
development which he interpreted as characterized by systematic changes in the legal order and
in the growth of authority.
Sociology was, for Weber, a comprehensive, wide-ranging science of social action.
Pound, Dean of the Harvard Law School, enunciated the aim of law as the balancing of the
security of society and the individual life.
To this end he wished to construct a ‘theory of social interests which courts may use, just as in
the past they have used the scheme of individual interests which we call theories of natural
rights’.
He attempted to make an inventory and classification of interests, believing that such
systematization was necessary if interests were to be balanced correctly.

4. MAX WEBER (1864-1920)

Max Weber is one of the founding fathers of modern sociology alongside Karl Marx and Emile
Durkheim.
Weber wanted law to be viewed from a systematic point of view and as such, was the first to
advocate for a systematic sociological view point.
How then is such a system formatted if a man is rational?
Rationality in this scope describes the transition in society where traditional motivators of
behavior such as values, beliefs and emotion are replaced with logical calculations.
One should bear in mind that Weber was writing during the Enlightenment period of the late
19th Century where science was having more ground than religion.
Rationality means following a rule or abstract moral principle rather than acting on impulse,
randomness or on emotion.
The elements of rationalization include:
1. Control of the world through calculation and the collection and recording of information.
2. The systematization of meaning and value into an overall consistent scheme.
3. Methodological living of daily life according to the rules that were put in place.
Weber felt that law would fail where the legal system was insufficiently autonomous of legal
reasoning. Due to the inherent nature of humans, he saw law as an end result of legitimate
dominion.
How then would such a systematic system be both legal and rational?
The answer lied in Bureaucracy. Weber identified bureaucracy as a rational- legal authority in
which legitimacy is seen as coming from a legal order and the laws were enacted within it.
This is contrasted with traditional forms of authority that arose from kinship.
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The implementation of bureaucracies in the government was a type of rationalization in which

traditional motivators for behavior were set aside.
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Bureaucracy is founded upon rational-legal authority. From this analysis, Weber came up with 3
ideal types of legitimate authority. They include:
1. Traditional authority; such authority existed in communities and those with the authority were
treated as either gods or demi-gods.
2. Charismatic authority; such type was derived from the charisma of an individual and people
would associate this person with some sort of extraordinary ability. People attributed to them
the capacity to make things happen for the benefit of the people.
3. Rational-legal authority; this type of authority was characterized by the belief in legality of
legislation. Authority attaches to the office itself and not to the occupant of said office.
Out of all the above mentioned types of authority, Weber felt that the rational-legal authority
was the dominant of all three.
In addition, Weber also looked into rationalization in Western societies. He termed the
increasing rationalization there as an “iron cage” in which individuals were trapped in systems
based solely on efficiency, rational calculations and control.
Weber’s ideal bureaucracy consisted of some of the following characteristics:
a) Hierarchal organization
b) Delineated lines of authority with fixed areas of activity
c) Action taken on the basis of and recorded in written rules
d) Bureaucratic officials with expert training
e) Rules implemented by neutral officials
f) Career advancement depending on technical qualifications judged by
organization not individuals.

SUMMARY OF WEBBER’S LAW AS A LEGITIMATE AUTHORITY THEORY

CONCEPT ANALYSIS
Law as Legitimate Authority Law within society could be comprehended, according to Weber,
only through an appreciation of the significance of ‘social order’.
In Law in Economy and Society (1891), Weber emphasized that the
essence of social order is to be found in norms and the power to
enforce them.
The law cannot be effective in the absence of power.
By ‘power’, Weber has in mind the ability of persons or institutions
to affect the will and behaviour of others by coercion or the threat
of such coercion.
Underlying the exercise of power must be an acceptance by
members of society of legitimate authority, and such an authority
exists only where those persons accept their rulers as a living
embodiment of the idea of ‘power through authority’.
It is important to note that Weber deliberately rejected Marx’s
work on the nature of society and social change.
Marx’s historical determinism and the economic interpretation of
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history were unacceptable.

‘In my opinion,’ wrote Weber, ‘the view of historical materialism
frequently espoused, that the economic is in some sense the
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scientific proposition.’
Weber’s interpretation of history gave no support to the Marxist
view of history as the expression of class struggle. Historical
change, social progress, changes in law and jurisprudence required
investigation in a rigorous fashion which would, by its nature,
exclude the world-view of Marx.
The types of legitimate Weber’s investigation of the legal history of societies suggested to
authority him three types of ‘legitimate authority’, each having its own
special attitudes to the concept of law and the purposes of legal
institutions and procedures, each defined in terms of relationships
built on obedience, or by the kind of legitimacy claimed by a
leader.

a) Traditional Authority
Traditional authority existed as the result of a community’s long
habituation to the concept of legitimacy as deriving from the
sacred quality of age-old powers.
Obedience of the ruled was required, not on the basis of
enactments, but rather through the belief that the rulers had an
authority conferred by ancient tradition.
Rule by patriarchs and elders epitomized the exercise of authority
of this nature.
New rules, having the force of law, were legitimized by the very
form of their enunciation which often reaffirmed ancient,
traditional rules. Law was rarely created in open fashion in these
circumstances.

b) Charismatic Authority
(Charisma=the gift of grace.) Norms of social conduct upon which
systems demanding obedience will rest, are revealed or ordained
by some extraordinary person—a hero, prophet or god-king—who
seems endowed with superhuman powers.
Revolutionary leaders tend to wield authority of this nature in the
first years following their victorious revolutions.
Weber notes that the charismatic type of authority is enforced
easily in the initial period of revolutionary victory, but becomes
difficult to maintain in later years when it produces conflict with
rules of a routine and mundane nature.
The authority of the charismatic leader may be transmitted to a
successor so that legitimate authority then rests on descent and
inherited status.
The original ‘charisma’ becomes institutionalized and results in the
creation of legal forms and other power structures.

c) Rational Legal Authority

Rational legal authority tends to be impersonal.
Belief in the legality of enacted rules is widespread, and there is an
acceptance of authority as resting upon a credible legitimacy.
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‘Be it enacted by the Queen’s Most Excellent Majesty…’ (the

enactment clause which introduced a statute) epitomises a
command which will be obeyed not because of the charismatic
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legitimate basis of Parliamentary supremacy, which authorizes the

exercise of supreme power within our society.
Authority within this context is justified by the obviously rational
nature of the rules promulgated by Parliament.
Authority attaches, under a legal order of this type, to the office
rather than to the person.
Thus, the authority of the Court of Appeal rests upon its position in
the hierarchy of the courts rather than the personal reputation
enjoyed by a particular Lord Justice of Appeal.
Weber viewed this type of authority, and structure, as being
particularly appropriate for the development of a capitalist society:
it provided an environment of certainty and predictability within
which a law of contract (essential for the development of
commercial activity) might develop.
The rational legal order is the conceptual basis of Weber’s
description of law as rules promulgated and externally guaranteed
by the probability that physical or psychological coercion to
produce uniformity (or to avenge violation) will be applied by
appropriate groups of persons.
A Systematized View of Procedures Weber suggested that legal systems might be considered in terms
Within Legal Systems of their ‘rationality’ or ‘irrationality’; a sub-division would take into
account the ‘substantive’ or ‘formal’ nature of legal procedures
within the systems.
This typology produced the following classification.
a) Substantively irrational systems Disputes tend to be decided upon
their individual merits: there is no set of general legal principles.
Ad hoc and intuitive decisions predominate.
b) Formally irrational systems Decisions result from tests beyond
control of the human mind’. Intuitive decisions are replaced by the
results of tests, such as ordeals. Basic irrationality is masked by
formality, as in the case of appeals to Divine judgment through
ordeal by fire or water.
c) Substantively rational systems Morality and law are combined
totally, as in theocratic systems in which the revealed Divine word
is law. Justice is administered in the name of the Divinity.
d) Formally rational systems Weber views this system as epitomized
by the codes of civil law derived from Roman classical law. The
system seeks to apply principles of logical consistence and of a
general nature to the construction of rational and impersonal
norms. Rules may be codified and sets of principles evolved which
will assist in the solution of all types of legal problem.
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5. ROSCOE POUND (1870-1964)

INTRODUCTION
Nathan Roscoe Pound was born on October 27th 1870 and died on June 30th 1964. In his 94
years, he became the leading figure in the 20th century legal thought.
He started by studying Botany at the University of Nebraska. He went on to study law later on
and passed the Nebraska Bar examination and admitted to the bar.
In 1901 he was appointed a commissioner of appeals for the Nebraska Supreme court.
It was this appointment that permanently shifted his career to law.
He was appointed dean of Nebraska College of law in 1903 and went on to become the dean of
Harvard law school in 1916.
He was appointed the first university professor of Harvard. From there on he became a scholar,
teacher and a reformer.
Through his sociological jurisprudence, Pound was of the view that law and society should be
linked in order to improve the administration of the judicial system-as we shall see later herein.
He argued that the law is not static and must adapt to the needs of the society, hence his words
“The law must be stable, but it must not stand still”.
In this statement one would probably say that he was attacking the common law in its rigidity.

Development of the concept of “interests” that guided R. Pound.

This particular subtopic looks at the postulates of:

1. Jhering
2. Ehrlich
3. Joseph Kohler

Jhering looked at the societal and individual interests. His proposition was that law existed to
protect these two.
That law is there to further and protect the interest of the society. Society was there to protect
the selfish nature of individuals and as well to subsume the latter when such interests were
contrary to the society He related a right to an interest.
According to him, the law does not exist for the individual as an end in himself, but serves his
interest with the good of the society in view.
He stated that these interests will change in view of time and space (different areas/places).
It is from Jhering that Pound gained the aspect of the interests of the Individual vis-à-vis societal.
Pound adopted Jhering’s notion that rights only exist to protect interests which the state ought
to secure and the notion that the growth of law takes place because of purposes, that is, in
order to protect such interests.
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Pound seems to have adopted Ehrlich’s view of the living law.

Through the living law, Ehrlich says that one needs to look within the society and observe how
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the formal law (positive law) is followed, modified, ignored and supplemented; and in doing this,

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one comes up with the living law. He differentiated between norms for decision (laws, rules
and regulations, Statutes and judicial decisions) –those laws that are traditionally understood to
be laws and norms of conduct (self-generating social rules) laws that actually govern society.
Ehrlich recognized the existence of a gap between living law and positive law. It is
through this work of Ehrlich that Pound realized the proposition of living law which he took
account of in his work as shall be seen later on.
Joseph Kohler stated the two-fold purpose of law. These are:
a) to maintain the existing values of civilization and
b) to carry forward the human development
Therefore the law must adapt itself to the task of the time and place. It is from this that Pound
stated that the law must not stand still. In other words, the law must follow the society.

Roscoe Pound’s Philosophy

According to Pound, Sociological Jurisprudence should ensure that the social facts are included
in the making, interpretation and application of law.
To Pound law should reflect human needs and aspiration.
The argument here is that law is to be seen as adjusted principles and doctrines to human
conditions and its logic is to serve as mere instrument.
He brought the view of law in action (living law: Ehrlich) - law that actually reflects the
current behavior of the people; this he contrasted with the law in the texts.
In his view, social mass must be able to influence the law that regulates their behavior.

1) Social Engineering
According to this theory of pound, the concern here is with the effects of law upon society. In
his social engineering theory, legal history is classified into 5 stages:

1. Where the end of the law is to keep the peace; this is primitive law
2. Where the end is to create certainty and uniformity in the society; this is strict law
3. Equity and natural law. Here ethics and morality are brought in the law
4. The free individual self assertion (rights), where the law seeks equality and security
5. Lastly where the end of the law is protection of interests that further civilization

The aim of social engineering is to build as efficient a structure of society as possible which
according to him requires the satisfaction of the maximum of wants with the minimum of
friction and waste.

2) The Jural Postulates

These are ideas of rights (interests) that can be made effective through legal precepts and
institutions (judiciary) by going back to the two-fold functions of law as: maintaining the values
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that are currently in place and to incorporate developments made by human.

The law must develop as per time and place. The jural ideas of time and place help the law in
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The jurists postulates is done by observing a given society in its day to day activities and from
this one can objectively combine the principles observed as guiding human life in that society.
Essentially, the argument is that, the legislators and the judges formulate and shape the
development of the law using these postulates.
The jural postulates are used in view of the following:

1. That the judge has to be guided in finding rules by a more detailed picture in his mind. This
probably calls for the judge to know what actually goes on in the society.
2. In law-making process, there is also a need for the legislator to have a detailed picture
(information).
3. In creating and ordering activities there should be a demarcation placed by the jurists using the
clear picture portrayed by the society
4. The particular picture/ information/ practice of the society should be recognized as being able
to serve but for a particular time and place. In view of this, when a change occurs, this change
should be used to replace the previous view of the society.
5. That such a picture/ practice of the society is present and guides the jurist whether they are
oblivious or not.

3) Pound and the Theory of Interests

The theory of Interests came about to represent Pound’s scientific theory of justice.
This theory looks at the highest good which satisfies the maximum number of claims and
thereby resulting to the least friction or waste.
To some extent, this view is relative to Bentham’s Utilitarian theory where he argued that the
function of the law should be the promotion of the greatest happiness of the greatest number.
(to the detriment of the minority?)
Pound described interest as any claim or desire which human being seek to satisfy and which
must therefore be taken into account by the society in its ordering of human relations.
In this theory, Pound states that the achievement of the purposes of the legal order is through:

i. The recognition of certain interests vis a vis individual, public and social.
ii. A clear definition of the limits that would be used to give recognition to these interests as well
as to give them effect.
iii. securing of these interests that have been recognized

a) The Interests

1. Individual interest- these are described as desires claims or demands that are looked at from
the individual point of view. Under this heading there is Personality: this includes interests in
honor and reputation privacy, belief and opinion, Domestic relations: which are basically
interest of the family, and lastly interest of substance: interests of property, freedom of
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association, contracts etc.

2. Public interests- these are the claims/demands/desires from a political point of view. They are
divided into two: state interests as a juristic person: including claims of property acquired and
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held for corporate purposes. Here the state is seen as a corporation in the meaning of a
politically organized society. Secondly, state interests as a guardian of social interests.
3. Societal interests- these are claims of the social group. The social interests include:
i. General security- this include things like securities of acquisition and transactions,
peace and order and health
ii. Security of social institution. Such institutions include religious, political and
economic institutions.
iii. General morals-dealing with things like gambling, prostitution etc.
iv. Conservation of social resources ( natural resources)
v. General progress in terms of economic, political and cultural.

b) The System Of Interests’ Requirements

According to Pound, five things needed to be in place for this system, as from the discussion of
the interests:

1. That there should be an inventory that classifies the interests. This is through a general survey of
legal claims
2. The selection of the interests which should be legally recognized. This is through the jural
postulates and their application to the interests
3. The process of creating a border between the interests selected
4. That there should be means that the law uses to secure the interests. This could be through
evaluation of the efficiency of the legal machinery
5. That the valuation of the interests should evolve with time, and should be guided by scientific
scrutiny of experience with regard to cases

c) Securing The Interests

This is done:
i. By legal persons: judges lawyers.
ii. Remedial machinery that uses:
Punishment
Redress
Prevention

d) Balancing and Weighing of Conflicting Interests

Pound stated that interests should be weighed on the same ‘plane’. Here he was of the view
that the ‘social plane’ was preferable in weighing any other interest since it is a general one
(general good).
Consider article 35 -access to information. The granting of this right to an individual, suppose an
issue went to court, it will be weighed against the general society. Here we find the issue of
public policy which is almost always relied upon as a reason not to grant this right with respect
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to certain information held by the state.

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Criticisms on Pound’s theory of Interests

1. The first uncertainty is with the phrase ‘waste and friction’. What does he mean when he states
that balance of these conflicting interests is through a minimum of friction and waste? He did
not therefore disclose what he meant.
2. It is evident that with law, one cannot devise a complete detailed plan. The reason is that the
society keeps on changing and so do the interests. How then can one predetermine the value/
importance of an interest
3. RIGHTS/ interest are then given recognition. Recognition can be graded in many ways. Pound
has not specified the sense in which an interest is recognized as such. When a certain act or
omission is condemned officially but not outlawed, in what way does the law recognize or not
recognize it?
4. Lawyers are concerned with the choices made by the judges as well as the ideals they adopt.
The choice to uphold one ideal as opposed to the other is not a matter of balancing but of
decision.
5. Pound calls for one interest to be weighed against another when there is a conflict. This
proposition is somewhat misleading as one normally needs a different scale to weigh the two.

Conclusion
Roscoe Pound tried to explain to us a situation where the observations of the society
undertakings are to be analyzed and brought into book as the law.
He talked of the progressive developments in the society as forming a basis for some sort of
reform per se in the laws that exist.
According to him, societal development is concomitant with law development; in this case the
society drives the law in practical sense as opposed to ideals.
The criticisms are as well valid and bring out some pertinent issues concerning his theory.
Nonetheless, this theory of social interests has been applauded and recognized as a great
contribution to the legal philosophy as a method that seeks reason and compromise of the
interests, and preserves the past and at the same time being dynamic.

IMPACT OF THE SOCIOLOGICAL SCHOOL OF THOUGHT IN GENERAL AND IN A POST-MODERNISM VIEW

1. Law is currently being understood and determined by the actual practices of courts, law offices
and police stations.
2. Socio-legal studies emphasize the importance of placing law in its social context of using social-
scientific research methods of recognizing that many traditional jurisprudential questions are
empirical in nature and not conceptual.
3. Led to the building up of an effective science of law through harnessing of techniques of social
science as well as knowledge gotten from sociological research.
4. Helped in focusing on concepts like discretion and other different techniques of decision making
and conflict resolution.
5. It emphasized mostly on the behavior of the social institutions rather than trying to understand
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the legal doctrine.

6. It has brought about the introduction of different styles of reasoning which have an ill effect on
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legal practice by misunderstanding and thus threatening the integrity of legal processes.

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7. It is a trans-disciplinary enterprise and aspiration to broaden understanding of law as a social

phenomenon. Sociology of law is central to legal education and legal practice.
8. It works out, in a scientific way, the progress of determining the variables by which society
functions with regards to law and vice versa.
9. Has helped in elaborating legal theory and also in seeking to relate legal arguments to
sociological insights.
10. It has helped in creating governing laws in society, that is to say, through sociological
jurisprudence, people have managed to relate knowing each others’ boundaries, in that one
fears going against the law as it will affect the other.
11. It has helped in understanding the nature of law, legal reasoning and understanding of the legal
institution better.
12. It also helped in understanding other schools of thought. E.g. Durkheim’s works on division of
labor influenced the feminists.
13. It has helped in governing and has helped in indicating that the law cannot exist in the absence
of the people.

SUMMARY OF ROSCOE POUND’S LAW AS A SOCIAL INSTITUTION THEORY

CONCEPT ANALYSIS
Pound: The Essence of his Law was, for Pound, a social institution, created and designed to satisfy
Jurisprudential Thought human (individual and social) wants:
‘by giving effect to as much as we may with the least sacrifice, so far as such
wants may be satisfied or such claims given effect by an ordering of human
conduct through politically organized society.’

The essential feature of the legal order was the securing and protection
of a variety of interests, and this necessitated the modification of
traditional, inherited legal codes with existing social conditions in mind.
It was a task of sociological jurisprudence to ensure that social facts
were noted and analyzed so that they might be considered in the
formulation, use and interpretation of law.
The end of juristic study should be a contribution to the achieving of the
purposes of the law; where justice was considered as one such purpose,
this would necessitate the study of ‘impersonal, equal, certain
administration’ and of social-legal precepts of general application.
Interests Pound defines an interest (in his Outlines of Lectures on Jurisprudence
(1943)) as:
‘a demand or desire or expectation which human beings either individually or in
groups or associations or relations, seek to satisfy, of which, therefore, the
adjustment of human relations and ordering of human behavior through the
force of a politically organized society must take account.’

The recognition and definition of interests demand: an inventory and

classification of interests; decisions on the selection of interests to be
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legally recognized; systematic study of the means of securing recognized

interests.
It is the balancing of interests—individual, public, social—which
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constitutes the principal problem for legislators and jurists.

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Individual Interest Individual interests are ‘demands or desires involved in or regarded from
the standpoint of the individual life’.
They comprise the following:

I) Personality
This involves those interests pertaining to an individual’s physical and
spiritual existence, eg, physical security, health, freedom of will, privacy
and sensibilities, beliefs and opinions.

II) Domestic relations

This relates to the interests of parents and children and the protection
of marriage.

III) Substance
This concerns interests of property, succession and testamentary
disposition, freedom of industry, contract and association, ie, those
claims or demands ‘asserted by individuals in title of the individual
economic existence’.
Public Interest Public interests are ‘demands or desires involved in or looked at from
the standpoint of life in a politically organized society, asserted in title of
political life’.
They comprise the following:
a) Interests of the State considered as a juristic person, ie, its integrity,
freedom of action, security.
b) Interests of the State as the guardian of social interests.
Social Interest Social interests are ‘those wider demands or desires involved in or
looked at from the standpoint of social life in civilized society and
asserted in title of social life’.
They comprise the following:
i. General security, including claims to peace and order (against those
actions likely to threaten the very existence of society), safety, health,
security of transactions and acquisitions.
ii. Security of social institutions (domestic, religious, political and
economic).
iii. General morals, ie, security of social life against acts offensive to general
moral sentiments.
iv. Conservation of social resources, eg, use and conservation of natural
resources, protection and education of dependants and defectives,
protection of the economically-dependent.
v. General progress, ie, the self-assertion of the social group toward higher
and more complete development of human powers, including economic
progress (freedom of property, trade, industry), political progress
(freedom of criticism), cultural progress (freedom of science,
improvement of education and aesthetic surroundings).
vi. Individual life is, perhaps, the most important interest of all, involving
the claim or demand of each individual to live a full life according to
society’s standards.
The Balancing of Interest From a functional point of view, argues Pound, law is really an attempt
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to reconcile, harmonise or compromise overlapping or conflicting

interests: ‘either through securing them directly and immediately, or
through securing certain individual interests…so as to give effect to the
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greatest number of interests, or to the interests that weigh most in our

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civilization, with the least sacrifice of other interests.’

A problem of ‘social The appropriate ‘balancing process’ is related to problems of
engineering’ ‘eliminating friction and precluding waste in human enjoyment of the
goods of existence’.
It is a kind of ‘social engineering’, the brunt of which falls upon the legal
order.
Interests must be balanced ‘fairly’ and this involves examining a conflict
of interests on an appropriate plane.
Thus, an individual interest ought not to be weighed against a public
interest.
The process of balancing The process of balancing may necessitate reference to the following
interests forms of law:
1. Rules, ie, ‘precepts attaching a definite, detailed legal consequence to a
definite, detailed statement of facts’.
2.Principles, ie, ‘authoritative starting points for legal reasoning employed
continually and legitimately where cases are not covered or are not fully or
obviously covered by rules “in the narrower sense”’.
3. Conceptions, ie, ‘authoritative categories to which…cases or situations are
referred, in consequence of which a series of rules, principles and standards
become applicable’. (Pound suggests that these are chiefly the work of law
teachers and writers.)
4. Standards, ie, ‘the general limits of permissible conduct to be applied
according to the circumstances of each case’.
The recognition of new As society advances and changes, so claims to ‘new interests’ will
interests emerge. Recognition of a new interest will involve its being ‘tested’ by
reference to ‘the jural postulates’ of a civilised society.
These postulates encapsulate a given society’s underlying values.
Reference to the postulates will allow legislators to consider the
modification of values and the enunciation of new ones so as to conform
with basic general values.
These are the postulates as set out by Pound.
Pound’s ‘jural postulates’ The citizens of a civilised society are entitled to assume:
a) That others will commit no intentional aggression upon them;
b) That they may control for beneficial purposes what they have
discovered, created and acquired;
c) That promises will be carried out in good faith and that unreasonable
and unjust enrichment will be prevented as far as possible;
d) That persons engaged in a course of conduct will act with due care so as
not to create unreasonable risk of injury to others.
e) That citizens shall be entitled to assume that the burdens incident to
social life shall be borne by society;
f) That, as a minimum matter, ‘a standard human life’ shall be assured to
every citizen
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LECTURE 7: SATURDAY 26TH OCTOBER 2013- 8.00-11.00 AM (LECTURE HALL B5

TOPIC 7: UTILITARIANISM
DEFINITION

Utilitarianism is also known as the Principle of Utility. It is a scientific theory.

Utility is the usefulness of an act or item to an individual. An act or an item has utility if it has the
capacity to bring pleasure and prevent pain
Therefore Utilitarianism or The Principle of Utility evaluates an action as to whether its
consequence brings happiness to the greater number (majority in the society)
Utilitarianism began with the philosophies of Jeremy Bentham and John Stuart Mill.
Utilitarianism is a positivistic reaction against what has been perceived as the excesses of the
natural law school approach to law.
In its disgust with the unscientific methodology and metaphysical orientation of natural law, the
utilitarian theory seeks ways of meeting the welfare needs of the people without allusion or
reference to the higher authority of natural law or even God.
The major proponents are Jeremy Bentham (1748-1832) and John Stuart Mill (1806-1873).
The utilitarianism theory became popular during the enlightenment period (18th cent.) and the
theory was strictly empirical as opposed to hypothetical
Bentham’s utilitarianism was an answer to the search for justice
Bentham was an important reformer. According to Talleyrand (Once a French diplomat) “to
trace the result of his teaching in England alone would be to write a history of legislation of half
a century”.
The utilitarian school of jurisprudence propounds that utility is the standard for measuring the
propriety of our conduct or approach.
Similarly, the significance or usefulness of a law is determined by its capacity to meet the needs
and aspirations of the people.
According to Bentham, law has utility which satisfies the greatest happiness of the greatest
number.
This is another way of saying that a law would be taken as acceptable or achieving its welfarist
purpose where it caters for the interest of most of the people in the society.

JEREMERY BENTHAM-UTALITARIAN PRINCIPLE

Jeremy Bentham lived during the industrial revolution period. His father was an Attorney.
He studied law but did not practise it. He devoted his life to writing on matters of legal reform
He developed the idea of a utility and a utilitarian calculus in the Introduction to the Principles
of Morals and legislation (1781).
Jeremy Bentham subscribed to the command or the imperative theory of law which was
popularized by John Austin.
Such theory sees law as the will of the sovereign who is superior to the addressees of the law,
which law is backed by sanctions.
Thus, he defined law as: An assemblage of signs declarative of a volition conceived or adopted
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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.
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And he defined a sovereign as: Any person or assemblage of persons to whose will a whole
political community are (no matter on what account) supposed to be in a disposition to pay
obedience and that in preference to the will of any other person.
As the foregoing would have revealed, Jeremy Bentham was a positivist who, in the tradition of
other fellow travellers in the positivist train, disdained natural law because its metaphysical
claim was unverifiable.
Thus, he derided natural law as ‘nothing but a phrase’ and natural rights as ‘nonsense upon
stilts.’ But that is not to say that he was not interested in the welfare of human beings. If that
was the case, he would not be associated with the greatest happiness of the greatest number.
Note that all he sought to do was to demonstrate that anything that is beyond human
observation or experimentation was not worthwhile.
He introduced his principle of utility by alluding to the senses of pleasure and pain. According to
him, the most important quality of human beings was their sentience, that is, their ability to feel
pleasure and pain.
He believed the two (that is, pleasure and pain), to be, self-evidently, masters of mankind.
In his Introduction to the Principles of Morals and Legislation (1789, 1832), he adumbrated as
follows: Nature has placed mankind under the governance of two sovereign masters, pain and
pleasure. It is for them alone to point out what we ought to do, as well as determine what we
shall do. On the one hand, the standard of right and wrong, on the other the chain of causes and
effects are fastened to their throne. They govern us in all we do, in all we say, in all we think.
What he is saying here is that the destiny of man is held hostage by pleasure and pain. It is
either he is in pleasurable condition or he is suffering from some pain.
In other words, man’s life is conditioned by his response to the stimuli of pleasure and pain.
Man would do those things from which his pleasure derives while at the same time refraining
from activities that are a source of his pain.
Pleasure of the senses includes riches, power, friendship, good reputation and good knowledge.
Conversely, pain of the senses includes privation, enmity, bad reputation, malevolence, and
fear.
Bentham asserted that the pleasure derivable and the pain emanating from one’s act were the
influential factors in one’s decision as to whether to do it or to omit doing same To anchor this
theory is the principle of utility or the utilitarian principle.
Utility is the quality of an object or action which imbues it with the capacity to produce some
good, satisfaction, happiness or benefit on the one hand, and to prevent or reduce pain, evil or
mischief on the other.
In other words, utility has to do with the usefulness of an act or item to an individual. A product
is said to lack utility if it is not useful or where its uselessness is more than its usefulness. The
principle of utility is the barometer for measuring or evaluating all action.
Bentham explains:By utility is meant that property in any object, whereby it tends to produce
benefit, advantage, pleasure, good or happiness (all this in the present case comes to the same
thing) or (what comes again to the same thing) to prevent the happening of mischief, pain, evil
or unhappiness to the party whose interest is considered: if that party be the community in
general,then the happiness of the community; if a particular individual, then the happiness of
that individual.
As the principle can be used for an individual action so can it be utilized to measure or gauge the
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goodness or badness of the law of a State.

Therefore, any law that benefits most people or most people in a class of the society has
utilitarian value and should be promoted.
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Where, however, such law imposes burdens on most people, then it fails the test of utility and
should be rejected.
So, according to Bentham, a utilitarian law is that good law that satisfies the greatest happiness
of the greatest number.

TYPES OF UTILITARIANISM
There are 3 different types of utilitarianism:

1) Eudemonistic Utilitarianism
Instead of maximising pleasure the society should instead maximise happiness
Happiness is referred to as eudaimonia in ancient Greek.
Happiness may be related to pleasure but it includes more abstract satisfactions

2) Preference Satisfaction Utilitarianism

Disagrees with the happiness as a measure of utility
Because happiness is notoriously difficult to define and different persons have different views
about what makes them happy in life and is difficult to measure directly.
Economists amongst others have substituted preference for happiness as the good to be
maximised.

3) Hedonistic Utilitarianism
Bentham believed that utility was pleasure and the absence of pain.
One could measure pain and pleasure in units called hedons
Pleasure was a positive hedon (satisfying necessary desires, associated with pleasure e.g. sleep
and food)
Pain was a negative hedon (satisfying unnecessary desires associated with pain as the end result
e.g. stealing )
To maximise utility therefore, one had to simply maximise the number of positive hedons
Hedonic Calculus/Felcific Calculus-The more pleasure one had (positive hedons), the greater the
good and the more negative hedons one had, the more the pain and the lesser the good.
Hedonistic utilitarianism is about maximizing amount of pleasure leading to minimum amount of
pain
The rightness of an action is dependent on the amount of pleasure it tends to produce and the
amount of pain it tends to prevent
Bentham describes the good not only as pleasure but also happiness, benefit and advantage

The Hedonistic/Felicific Calculus

Bentham gave variables of pleasure and pain as:
a) Intensity(I)-the intense of pleasure or pain
b) Duration (D)- how long the pleasure or pain lasts?seconds,minutes,hours,days..the interval
between the start and end of the pleasure was what interested Bentham
c) Certainty(C)- probability that the pleasure or pain will occur
d) Propinquity (nearness or remoteness)(N)- how far off in the future is the pleasure or pain? How
long one must wait for pleasure to occur?
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e) Fecundity(F)- what is the probability that that the pleasure will lead to other pleasures?
f) Purity(p)-how free from pain is it?
g) Extent(E)- how many persons are affected by the pleasure?
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The more pleasure one had (positive hedons), the greater the good and the more negative
hedons one had, the more the pain and the lesser the good.
Calculation of measuring pleasure was aimed at the greatest absolute pleasure in other words
the greatest amount of happiness for the greatest number of people.
Therefore the good of the community/greatest happiness of the greatest no is a total sum of the
pleasures of the majority of the society (FELICIFIC CALCULUS).

MEASURING HAPINESS: FELICIFIC CALCULUS

But, because the utilitarian theory parades itself as scientific, how do we scientifically find out
what law satisfies the greatest happiness of the greatest number?
In response, Bentham stated that it was possible to accurately predict the consequences of an
act and to calculate the extent to which it would promote pleasure and prevent pain. More
specifically, he asserted that the intensity, devotion, purity and fecundity of the sensations of
pleasure and pain are measurable.
For this purpose, he developed a ‘felicific or hedonistic calculus. ‘With this instrument, we would
calculate the social totals of the amount of pleasure and pain which an action possesses.
Note that Jeremy Bentham’s theory, more specifically, his methodology of measurement, is
predicated upon three assumptions:
a) That there is accretion to the happiness of an individual where the addition made to the
sum total of his pleasures is greater than the addition to the sum total of his pains;
b) That the general societal interest is made up of (the sum of the parts of) the interest of the
people of that society; and
c) That the collective happiness of the society is increased where the total of all pleasures of
the individual members of the society is increased to a greater extent than their pains.

BENTHAM QUALITY OF LEGISLATION

The principle is a roadmap to legislators in their duty of making laws to regulate the conduct of
the people, and a guide in the relationship between the people and the government.
In law-making, Bentham distinguished between the science of legislation and the art of
legislation.
Science of legislation is the ability of the legislature to know the ‘good’; the ability to predict the
measures that could maximize pleasure or happiness, and/or minimize pain or misery.
On the other hand, the art of legislation is the ability of legislators to promulgate laws that
would have the effect of promoting the good and reducing the bad. In other words, it means
discovering the means of realizing the ‘good.’
In as much as utilitarianism is used for gauging actions it can also be used to gauge
goodness/badness of law.
Therefore a law within a society that advantageous to the majority is of utilitarian value and
should be upheld.
A law that yokes the majority should be rejected.
Quality of legislation is a guide to legislators when drafting laws.(Science of legislation- ability of
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the legislator to predict the consequence of the law he makes AND Art of legislation- ability to
pass laws that promote good and minimize on the bad).
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It is, therefore, the conclusion of Bentham that the quality of legislation is proportionate to the
ability of legislators to acquaint themselves with the intricacies of the science of legislation and
the art of legislation and to effectively put them to practice.
To him, a legislation that is programmed to generate happiness for the community must:
1. Provide subsistence if not abundance;
2. Provide security. Bentham stated that this was the most important goal of
the legislature. Security involves protecting man’s honour, status, and
property. However, because liberty was not a goal of the legislature, any
conflict between the latter and security would have to be resolved in favour
of security.
3. Reduce inequalities. Note that he is credited with having said that perfect
equality was a mirage.

BENTHAM OF CRIME AND PUNISHMENT

Bentham was a proponent of classical criminology.
Bentham expounded on Cesare Beccaria’s principle of pain/pleasure in punishment.
Classical criminology was a reaction against the barbaric system of law, punishment and justice
before the French Revolution of 1789.
Back then there were over 200 capital offenses.
Bentham was to solve the problem as to why ‘terrible tortures designed to deter crime led to
people even committing more crime’.
Bentham then came up with the felicific calculus According to Bentham, law exists to create
happiness for the community.
Since punishment creates unhappiness, it can only be justified only if it prevents greater evil
than it produces.
Benthamite ideas on crime and punishment led to a reform of the English criminal law between
1820-1861.
Numbers of capital offenses were reduced from 222 to 3 (murder, treason and piracy).
Jeremy Bentham dwelt quite extensively on criminal law and punishment. A summary of his
discourse is given below:
a) The mischief of an act (or the pain produced there from) must be taken into consideration to
the effect that the law must discourage acts which produce pain or evil.
b) Criminal law must not be based upon the acceptance of the division of offences into mala in
se (acts which are wrong in themselves) and mala prohibita (acts which are wrong because the
law prohibits them). An act cannot be wrong in itself; its wrongness becomes manifest only in
consideration of its consequences. Where, therefore, an act does not produce any harm, it
should not be the subject of prohibition let alone sanctions.
c) Upon the basis of the principle of utility, to punish is to inflict suffering on an offender, a step
that increases the sum of evil. But the overall object of the criminal law ought to be an increase
in the community’s total happiness. Therefore, if, in the name of the community, punishment is
to be administered, it must demonstrate that the resulting pain will help to prevent greater
general pain. Thus, punishment has utility if and only if its eventual outcome results in greater
happiness for the whole community. It is in this connection that retribution is derided as being
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of no value.
d) Where compensation can be ordered to be paid, the imprisonment or punishment of the
offender is unnecessary. Punishment ought to be severe enough to outweigh any profit likely to
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A practical example is the anti-money laundering laws. It, inter alia, punishes money laundering
and authorizes the seizure, freezing, confiscation and forfeiture of assets derived from
corruption and other financial crimes. In order to properly enforce the suggestion of Bentham,
offenders must not only be imprisoned; assets they derived from their criminal endeavours
must be confiscated or forfeited so that the economic motive of crime would be erased. In other
words, the confiscation or forfeiture must restore the offenders to the status quo ante bellum.

CRITICS OF BENTHAM HENDONISTIC UTILITARIANISM

Pleasure and pain do not dictate all human behavior.
Qualities of pleasure- pleasures don’t have equal weight. What is pleasure to person X may not
be pleasure to person Y.
No standard for calculating hedonism (maximum amount of pleasure).
Calculation of pleasure must not be aimed at the greatest absolute happiness but the greatest
average happiness otherwise the minority rights might be ignored.
It was subjective and thus not scientific -the theory was impracticable in that it could not apply
to every individual in a society.
Inconsistency of the theory- Jeremy Bentham had criticized Natural law as ‘law on stilts’
referring to its metaphysical nature and yet he comes up with a calculus that would need to be
proven.
The principle of quality of legislation has been criticized as unrealistic since not many legislators
take into account the effect of the laws on the majority.
Silence on justice-the utilitarian theory does not state why law is there or what law is rather it
gives weight to the convenience of happiness to the majority.
Bentham objected to natural law doctrine as ‘nonsense on stilts’. But suggestions have been
made that utilitarianism may have much in common with the outlook of natural law.
Schumpeter points out some resemblances of Bentham’s doctrine and the essence of natural
law:
a) Utilitarianism is concerned with ‘ultimate values’, as is natural law. The principle of utility seems
to some jurists to have about it an aura of ‘universal and immutable values’.
b) Utilitarianism and natural law are based on ‘normative systems with a strong legal slant’.
c) Utilitarianism is a comprehensive philosophy which embodies a uniform method of analysis, as
is the case in natural law.

Utilitarianism: Majority versus Minority: It is easy in our socio-economic and political discourse
to render analyses by reference to the majority. For example, democracy is majority rule. In the
same vein, the utilitarian theory propounds the greatest happiness of the greatest number. This
is another way of saying that an action or law is worthwhile if it satisfies the interests of the
majority. But what then happens to the minority? The majoritarian theory is a theory that
satisfies the majority and dissatisfies the minority. In other words, minority interests can be
sacrificed on the altar of majority interests. The utilitarian theory is undermined by its
promotion of the interest of the majority over that of the minority.

John Stuart Mill

John Stuart Mill was a brilliant scholar who was subjected to a rigid system of intellectual
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discipline and shielded from boys his own age.

When Mill was a teenager, he read Bentham’s works. Mill said the feeling rushed upon him
“that all previous moralists were superseded.” Mill modified Bentham’s utilitarianism.
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Mill revised Bentham’s arguments by rejecting or reforming his approach

Mill came with the following ideas in response to Bentham’s utilitarianism:
1. Source of Happiness
Unlike Bentham who stated that one should maximize physical pleasure and minimize
pains, Mills said that there are other sources of happiness which are not physical.
Measurement of pleasure/pain should be quantitative as well as qualitative.

2. Importance Placed on Welfare of Others

In making others happy, you make yourself also happy.
One should not ignore the interest/happiness of others when aiming at their own
interest.

3. Justice
Bentham had said that justice was a fantasy created for the sake of convenience.
To Mill, justice was important in balancing social utilitarianism (social welfare) and
individual utilitarianism (individual freedom).

4. Utility Is Opposition Of Pleasure

He defines utility as pleasure and the absence of pain.
“Actions are right in proportion as they tend to promote happiness, wrong as they tend
to produce the reverse of happiness.”
This means that things are only good if they result to pleasure and bad if they reduce
the pleasure.

5. Higher And Lower Pleasures

He says that pleasures are not equal.
Pleasures of the higher faculties- inaccessible to lower animals.
Mental pleasures are said to be better than physical ones. They last longer, are safer
and less costly.
Pleasure P1 is more desirable than pleasure P2 if: all or almost all people who have had
experience of both give a decided preference to P1, irrespective of any feeling that they
ought to prefer it.
This is the difference between Bentham and Mills, it is known as the “swine objection”
People using their higher faculties are not content because they always worry about
limitation.
To this he responded by saying: "It is better to be a human being dissatisfied than a pig
satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fools, or the
pig, are of different opinions, it is because they only know their side of the question."
This meant that those who have experienced both faculties are the best judges.

INDIVIDUAL UTILITARIANISM
Proponents of this theory are also known as Pro-choicers.
Mill is a typical proponent here though his ideas insinuate that he is a social utilitarian.
Based on individual will. Recall Emmanuel Kant on the idea of free will.
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According to individual utilitarian’s, legal systems allow individuals of full legal capacity to
exercise their will as it suits them i.e. law of contracts, wills, marriage.
For social utilitarian’s, some contracts are not recognized under the law ie contract between two
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Mill says that man is sovereign-man can do what their heart wants as long as they don’t
interfere with others happiness/rights.
Rationale for individual utilitarianism- the individual knows best what he wants therefore he
alone should determine his action.
This theory advocates for suicide, homosexuality, euthanasia because the conduct primarily
affects the individual.

MILLS HARM PRINCIPLE

The harm principle tries to explain why Mill is a typical proponent of Individual utilitarianism yet
his ideas insinuate that he is a social utilitarian.
The harm principle states that power should be exercised over members of a civilized
community against their individual will in order to prevent harm to others.
See Article 24 of the CoK 2010 on limitation of rights and fundamental freedoms.

SOCIAL UTILITARIANISM
Proponents of this theory are also referred to as Pro-lifers.
It acknowledges that though one may be a master of their own destiny, the individual is a social
animal.
General interest is greater because man is not an island.
Look at Art.66 of the CoK 2010 on the regulation of land use and property, Art.40(2) where
parliament shall not enact a law that arbitrarily deprives a person of his interest in or right over
property & Art 40(3)(a) where deprivation of property is only allowed through Eminent domain
and police power (Art.40(3)(b)).
According to social utilitarians, a woman cannot commit abortion since the state needs people
to work in factories.
To individual utilitarians, a woman is not a child bearing factory (Recall Art.26 of CoK 2010
debate on right to life).
To social utilitarians, euthanasia is illegal since it is killing a defenseless person (life can be
irredeemable unless there are miracles therefore is justified).
Social utilitarians also say that suicide cheapens the sanctity of human life (exercise of will). In
Kenya one can be tried for attempted suicide (See Penal Code).
Social utilitarians say that homosexuality corrupts public morals (as long as they are consenting
adults).
Social utilitarianism manifested today:
a) Corporate Social Responsibility- wealthy members of society are expected to donate their
wealth for the good of other members of the society
b) Activists such as Boniface Mwangi, Wangari Maathai, Nelson Mandela, Okiya Omtata*, Mother
Teresa (people who give up their own individual interests for the good of the society)

Social utilitarianism and Individual utilitarianism complement each other.

In as much as spirit of individualism came to communalistic Africa, social utilitarianism is seen
through the extended family system, wealthy members caring for other members of the society.
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It is a converse approach to legal positivism

While positivism views laws as it is, utilitarianism introduces the point of utility as a focal point.
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Proposes usefulness of purpose as opposed to the positivist.

In his writings Bentham avoids use of the word “duty” as to him rights and duties are legal

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notions.
To him rights and duties would mean a law without a legislator which would be illogical.
Bentham criticized belief of natural rights in that it increased violence and rebellion as seen in
the French Revolution.
Relevance of Utilitarianism in Kenya
In the constitution making process was participatory-This envisions Bentham’s purposive nature
of utilitarianism
The apparent need to change and reform the society i.e customs culture and transitions of
politics all envisions mills logic in utilitarianism vis a vis Benthams purposive.
Preamble and National values in the constitution.
The judiciary in terms of execution,decision making cases in utilitarian approach.

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LECTURE 8: SATURDAY 2nd NOVEMBER 2013- 8.00-11.00 AM (LECTURE HALL B5

TOPIC 8: LEGAL REALISM

DEFINITION
Essentially, realist jurists envisage a science of law as built upon a study of law in action. ‘Law is
as law does.’
In broad terms, the basis of ‘realism’ rests on the belief that when we perceive, we are aware of
things existing independently of us; implicitly, therefore, this belief involves a rejection of the
view that what is perceived is no more than private sense-data.
The investigation of a phenomenon such as law necessitates an application of objective
procedures uninfluenced by sentiment or idealism.

The Realist Approach to Jurisprudence

Law is, according to the realist jurists, what officials (judges) do; it is not to be found in, and
cannot be deduced from, the mere rules by which those officials are guided.
An investigation of the unique elements of cases, an awareness of irrational and non-logical
factors in judicial decision-making, an assessment of rules of law by an evaluation of their
practical consequences—these are some characteristics of the realist approach.
Llewellyn argues that realism ‘is not a philosophy, but a technology… What realism was, and is,
is a method and nothing more’. In his article, Some Realism about Realism (1931), he
enumerates the following themes as common to the general realist approach to method:
a) Law is not static, and should be considered and investigated as if in flux.
b) Law is to be considered as a means to a social end.
c) Because society is in a continuous process of change and is often ‘ahead of the law’ in
its attitudes, continuous reexamination and revision of the law is essential.
d) ‘Is’ and ‘ought’ must be divorced—if only temporarily—for purposes of legal study.
‘After the purely scientific problem has been solved…the hour of ideals and value
judgments occurs.’
e) Traditional concepts and legal rules cannot provide a full description of what the courts
do.
f) Law has to be evaluated in terms of its impact and effects on society.

Legal realism is associated with a group of legal theorists in the 20th century who challenged the
idea of legal reasoning and adjudication which was dominant in judicial and academic writing at
the time. it is however not a coherent movement since among the writers termed as realists
there are very few agreed views, values, subject matter or methodology.
The only common factor among the legal realists is that they are cynics. They hold the position
that ultimately judges do what they like. They attack;
a) The conception of law as a brooding omnipresent
b) Lawyers common talk of rules as though they were genuine entities occupying some
world of time and space
c) The treatment of legal concepts such as right duty as if they are words with some
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metaphysical essence

There are two traditions of legal realist;

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a) AMERICAN REALISM

This is a combination of the analytical positivist and sociological approaches.

It is positivist in that it considers the law as it is. Reform is the ultimate aim but a prerequisite to
reform is in positivist thinking, a true understanding of law as it is.
The law as it stands is a combination of many factors and in as much as realists are interested in
sociological and other factors that influence the law, their approach may fairly be described as
being in part sociological.
Their concern is however on the law and not the society. They share with sociologists an interest
in the effects of social conditions on law as well as the effect of law on society but they
emphasize the need for a prior revelation of the actual behavior of lawyers. Its most distinctive
feature is the stress that it lays on factual studies of the behavior of lawyers.
The realist approach is highly empirical, law i.e. the decisions of judges are a product of
ascertainable factors.
These could include their personalities, their social environment, the economic conditions in
which they were brought up, business interests, trends and movement of thoughts, emotions,
psychology and so forth the importance of the personal elements was not new and attention
has therefore been drawn to the part layed by such factors. Realists gave them decisive
significance.

BASIC FEATURES OF REALIST SCHOOL

Realism denounces traditional legal rules and concepts and concentrates more on what the
courts actually do in reaching the final decision in the case. In strict sense, realists define law as
generalized prediction of what the courts will do.
There are certain principal features of realistic jurisprudence as outlined by Karl Llewellyn and
Prof. Goodhart:
1. There has to be a conception of law in flux and of the judicial creation of law
2. Law is a means to social ends; and every part of it has constantly to be examined for its
purpose and effects, and to be judged in the light of both and their relation to each
other.
3. Society changes faster than law and so there is a constant need to examine how law
meets contemporary social problems.
4. Realists believe that there can be no certainty about law and its predictability depends
upon the set of facts which are before the court for decision.
5. They do not support formal, logical and conceptual approach to law because the Court
while deciding a case reaches its decisions on ‘emotive’ rather than ‘logical’ ground.
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6. They lay greater stress on psychological approach to the proper understanding of law as
it is concerned with human behavior and convictions of the lawyers and judges.
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7. Realists are opposed to the value of legal terminology, for they consider it as tacit
method of suppressing uncertainty of law.
8. The realists introduced studies of case law from the point of view which distinguished
between rationalization by a judge in conventional legal terminology of a decision
already reached and the motivations behind the decisions itself.
9. The realists also study the different results reached by courts within the framework of
the same rule or concept in relation to variations in the facts of the cases, and the extent
to which courts are influenced in their application of rules by the procedural machinery
which exists for the administration of the law.

AMERICAN REALIST (PHILOSPHERS)

1. JUSTICE OLIVER WENDELL HOLMES, JR. : BAD MAN THEORY

He was an Associate Justice at the United States Supreme Court. He was one of the most
influential American common law judges and was the longest serving judge of the Supreme
Court, retiring at the age of 90 years. In his term, he was mainly known for opposing the
decisions of members of the Legislature.
In his book, Common Law, Holmes defined law as predictions of what courts will decide.
According to him, law was derived from judicial decisions enforced by the state. This view of law
considered other factors that influenced a legal system rather than concentrating on “pure law”.
Such factors include philosophy and economics. Holmes held the opinion that law should be
applied as a practical social science that responds to the actual social needs of a highly
industrialized society.
He critiqued John Austin’s command theory because of its lack of applicability in the complex
federal structure of the U.S.A. This included matters like the Supreme Court deciding political
issues controlled by the Legislature and divergence of legal rules and decisions in different
states.
Holmes was of the opinion that good law comprised of not only logic, but also experience, thus
making it applicable. He valued the study of legal history, but only as a way to evaluate the
effectiveness of rules that have been passed on from time to time. According to him, laws were
not to be followed simply because they had been in existence for a long time. He said, “true
science of law…consists in the establishment of its postulates from within upon accurately
measured social desires instead of tradition.” Laws needed to be practical and not merely formal
or traditional.
Holmes was against the thoughts of natural law scholars. He said, "Men make their own
laws...these laws do not flow from some mysterious omnipresence in the sky, and...judges are
not independent mouthpieces of the infinite. The common law is not a brooding omnipresence
in the sky." He held the opinion that law and morality should be separated in order to be able to
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fully understand the law. Instead of using the standards of morality, the common law standard
of a “reasonable and prudent” man would be used in determining the liability of a person.
According to him, lawyers were to concern themselves only with what the law is and not what it
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ought to be. However, he is accused of contradicting himself because he was of the view that

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decisions made by judges were based on “inarticulate convictions” outside the law. This is
because judges use facts of the case and their rationale to decide cases, which may have some
aspect of morality.
Holmes was of the view that social sciences could be used to determine the results of a person’s
act and the appropriate punitive action to be taken against them. This was an empirical
approach. However, Holmes held the opinion that the purpose of the law was not to instill
morality by punishing people but rather to make them aware of their social duties.
The “Realist Movement” only began to manifest itself towards the end of Holmes’ career.
Eventually, his views influenced legal thinking like that of the scholars in the school of critical
legal studies.

2. JUSTICE JOHN CHIPMAN GRAY:

John Chipman Gray only exhibited limited factors in common with the realists. His approach was
certainly as court-oriented as the realists.
For Gray the law was simply what the court decided. Everything else, including statutes, were
simply sources of law.
He said, “The law of the State or of any organized body of men is composed of the rules which
the courts, that is, the judicial organs of that body, lay down for the determination of legal rights
and duties.

3. KARL N. LLEWELLYN: A LAW JOBS THEORY:

Karl Llewellyn was a professor of law at the Columbia University. He confessed that there is
nothing like realist school instead it is a particular approach of a group of thinkers belonging to
the sociological jurisprudence. According to Llewellyn realism means a movement in thought
and work about law. Karl Llewellyn outlined the principle features of the realist approach. Which
are as follows:-
1. There has to be a conception of law in flux and of the judicial creation of law.
2. Society changes faster than law, so there is a constant need to improve the law.
3. There has to be a temporary separation between is and ought for the purpose of study.
Karl Llewellyn described the basic functions of law as ‘law-jobs’.
Law is an ‘institution’ which is necessary in society and which is comprised not only of rules but
also contains an ‘ideology and a body of pervasive and powerful ideals which are largely
unspoken, largely implicit, and which pass unmentioned in the books’.
Law has jobs to do within a society. These are:
i. The disposition of the trouble case: a wrong. A grievance, a dispute. This is the garage-
repair work or the going concern of society with its continuous effect upon the
remarking of the order of society.
ii. The preventive channeling of conduct and expectation so as to avoid trouble, and
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together with it, the effective reorientation of conduct and expectations in similar
fashion.
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iii. The allocation of authority and the arrangement of procedures which mark action as
being authoritative; which includes all of any constitution and much more.
iv. The positive side of law’s work is the net organization of society as a whole so as to
provide integration, direction and incentive.
v. ‘Juristic method’ to use a single slogan to sum up the task of handling the legal
materials and tools and people developed for the other jobs to the end that those
materials and tools and people are kept doing their law-jobs, and doing them better,
until they become a source of revelation of new possibility and achievement.

4. JEROME FRANK: FATHERS’ SYMBOL THEORY:

Jerome Frank was initially a practicing lawyer. He served in the Law Department of the
Government for about a decade. In 1941, he was appointed as a Judge in the United States
Circuit Court. He was also a visiting professor of law in Yale Law School. His classic work, “Law
and the modern mind” presents a very close examination of judicial process and is full of
practical illustrations. His thesis is that law is uncertain or certainty of law is a legal myth. He
exploded the myth that law is continuous, uniform, certain and invariable and asserted that the
judges do not make the law, instead they discover it. Frank observes that a judge’s decisions are
the outcome of his entire life history. His friends, his family, vocations, schools, religion, all these
factors are influential.
In this regard Jerome Frank has given the Fathers’ Symbol Theory. The child puts his trust in the
power and wisdom of his father to provide an atmosphere of security. In the adult the
counterpart of this feeling is the trust reposed in the stability and immutability of human
institutions. Frank suggested that the quest for certainty in law is in effect a search for a ‘father-
symbol’ to provide an aura of security, and although he attributed great prominence to this
factor. He offered it only as a ‘partial explanation’ of what he called the ‘basic myth’, and listed
fourteen other explanations as well.
Frank emphasized that law is not merely a collection of abstract rules and that legal uncertainty
is inherent in it. Therefore mere technical legal analysis is not enough for understanding as to
how law works. Frank accordingly divided realists into two camps, described as ‘rule skeptics’
and ‘fact skeptics.’ The ‘rule skeptics’ rejected legal rules as providing uniformity in law and tried
instead to find uniformity in rules evolved out of psychology, anthropology, sociology,
economics, politics etc. The ‘rule skeptics’ avoided that criticism by saying that they were not
deriving purposive ‘ought’ but only predictions of judicial behavior analogous to the laws of
science. Frank called this brand of realism the left-wing adherents of a right-wing tradition,
namely, the tradition of trying to find uniformity in rules. The fact ‘fact skeptics’ rejected even
this aspiration towards uniformity. He abandoned all attempts to seek rule-certainty and
pointed to the uncertainty of establishing even the facts in trial courts. It is impossible to predict
with any degree of certainly how fallible a particular witness is likely to be, or how persuasively
he will lie.
Frank divided realists into two camps, described as ‘rule-skeptics’ and ‘fact-skeptics’. The ‘rule-
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skeptics’ rejected legal rules as providing uniformity in law, and tried instead to find uniformity
in rules evolved out of psychology, anthropology, sociology, economics, politics etc. Kelsen, it
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will be remembered, maintained that it is not possible to derive an ‘ought’ from an ‘is’. The

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‘rule-skeptics’ avoided that criticism by saying that they were not deriving purposive ‘ought’, but
only predictions of judicial behavior analogous to the laws or science.

HOW AMERICAN REALIST SCHOOL IS DIFFERENT FROM OTHER SCHOOLS OF JURISPRUDENCE:

1. AMERICAN REALISM AND LEGAL POSITIVISM: Despite their serious differences, American realism
and legal positivism share one important belief. It is that their views are similar on the point of
difference between ‘the law as it is’ and ‘the law as it ought to be’. The positivist, according to Hart, look
to the established primary rules and to secondary rules of recognition that designate law making bodies.
American realists are skeptical about the degree to which rules represent the law. They seek to
investigate how courts actually reach their decisions. Karl Llewellyn observed that the realists’
separation of ‘is’ and ‘ought’, is a temporary divorce. The divorce lasts while the scholars are discovering
what courts actually do.

2. AMERICAN REALISM AND SOCIOLOGICAL APPROACH: Realist school differs from sociological school
as unlike the sociological approach, realists are not much concerned about the ends of law but their
main attention is on a scientific observation of law and its actual functioning. It is for the reason that
some authorities have called realist school as the ‘left wing of the functional school.’ Some quarters feel
that realist movement in the United States should not be treated as a new independent school of
jurisprudence but only a new methodology to be adopted by the sociological school.

3. AMERICAN REALISM AND NATURAL LAW PHILOSOPHY: Realist school differs from Natural law school
as according to natural law philosophy laws are made by the Nature or God itself but Realist school
believes that laws are made by the judges or juristic persons. Natural Law is “discovered” by humans
through the use of reason and choosing between good and evil. In Natural law school laws are based on
the morality and the ethics.

CRITICISM OF AMERICAN REALIST SCHOOL:

1. The realist approach to jurisprudence has evoked criticism from many quarters. The critics allege
that the exponents of realist school have completely overlooked the importance of rules and legal
principles and treated law as an assemblage of unconnected court decisions. Their perception of law
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rests upon the subjective fantasies and life experience of the judge who is deciding the case or dispute.
Therefore there can’t be certainty and definiteness about the law. This is indeed overestimating the role
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of judges in formulation of the laws. Undoubtedly, judges do contribute to law-making to a certain

extent but it cannot be forgotten that their main function is to interpret the law.

2. Another criticism so often advanced against realists is that they seem to have totally neglected that
part of law which never comes before the court. Therefore it is erroneous to think that law evolves and
develops only through court decisions. In fact a great part of the law enacted by legislature never comes
before the court.

3. The supporters of realist theory undermine the authority of the precedent and argue that case law
is often made ‘in haste’, without regard to wider implications. The courts generally give decisions on the
spot and only rarely take time for consideration. They have to rely on the evidence and arguments
presented to them in court, and do not have access to wider evidence such as statistical data, economic
forecasts, public opinion, survey etc.

4. Realist school has exaggerated the role of human factor in judicial decisions. It is not correct to say
that judicial pronouncements are the outcome of personality and behavior of the judges. There are a
variety of other factors as well which has to take into consideration while reaching his decisions.

5. The realist theory is confined to local judicial setting of United States and has no universal
application in other parts of the world like other schools of jurisprudence.

CONCLUSION

As we know that American realism is a combination of the analytical positivism and sociological
approaches. Realists define law as generalized prediction of what the courts will do. Realists
believe that certainty of law is a myth and its predictability depends upon the set of facts which
are before the court for decision. Legal realism emerged as an anti-formalist and empirically
oriented response to and rejection of the legal formalism. Legal realism operates on a premise
that is adhered to by most laymen and many who have legal training: that "the law," whatever
that may be, is concerned with and is intrinsically tied to the real-world outcomes of particular
cases. Proponents of legal realism say it is not concerned with what the law ‘should’ or ‘ought’
to be, but that legal realism simply seeks to describe what the law is. Proponents of legal
formalism disagree, saying that ‘law’ is what is commanded by a law-giver, that judges are not
law-givers, and that what judges do, while it might belong to the field of law, is not ‘law’ but
legal practice. American realism jolted legal positivism out of its complacency by questioning
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widely held assumptions about the nature of rules. Realism prompted the rethink of legal
positivism that was brilliantly undertaken by scholars like Hart and Raz. It forced positivists to
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distance themselves from formalism and to reconsider the nature of legal language and judicial
discretion.

American Legal Realism is often remembered for its challenge to the Classical legal claim that
orthodox legal institutions provided an autonomous and self-executing system of legal discourse
untainted by politics. Unlike Classical legal thought, American Legal Realism worked vigorously
to depict the institution of law without denying or distorting a picture of sharp moral, political,
and social conflict. The most important legacy of American Legal Realism is its challenge to the
Classical legal claim that legal reasoning was separate and autonomous from moral and political
discourse.

b) SCANDINAVIAN REALISM

This school of philosophy emerged in Vienna in the 1920’s and 30’s is also referred to as logical
positivism or logical empiricism or scientific empiricism.
Whereas American realists way of anchoring the law in reality was to equate it with the
behaviors of officials, the Scandinavian realists way was to identify the law with the
psychological occurrences i.e. the sensations in people’s minds as the result of the legal words.

SCANDINAVIAN REALISTS (PHILOSPHERS)

1. AXEL HAGERSTROM

He is the pioneer of Scandinavian legal realism. He was a Swedish professor who found suspect
all accounts of law and morals which included assertions that a moral or legal rule actually exists
since this presupposes that there a non natural sense in which things can exist thereby
suggesting the existence of another world separate from the physical one
He therefore advocated for a method of taking a word/phrase and then like one peeling a strip
of onion layer by layer the meanings that had traditionally been associated with it discarding as
one goes those that when tested against the world of facts are shown to be devoid of any
empirically verifiable meaning. After this, one will be able to give a view of the significance that
the word/phrase carries in practice.
He further emphasized that the significance of the psychological effect or the legal concepts on
people’s behavior .The notion of a right for example instills a citizen with power and strength to
enforce it while the notion of a duty gives rise to a feeling of being under an obligation to act in
a certain way. He concluded that the psychological effect of legal concepts are also important
for the role they play on the regulation of society obedience of the law depends not so much on
the knowledge that sanctions exist but on the psychological pressure for compliance that law
exerts.
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2. KARL OLIVERCRONA

He followed in the footsteps of the pioneer of Scandinavian legal Realism, Hagerstrom.

Borrowing from the pure law school of thought, he posited that the binding force of law exists
only as a psychological effect of the consistent implementation of legal rules, and that legal right
is an idea of fictitious power.
He concluded that law is organized force that gives security to everybody including state. In fact,
he suggests that the law has monopolized use of force within the state. This is reinforced by the
fact that law is valid only if it is affirmed and protected by an authority.
This leads to criticism against international law which lacks an equivalent of a state that could
enforce it. In any case, we have witnessed instances where under threat of censure from
international law, states have always cited their sovereignty to diffuse the impact of
international law. This was most profound during the Second World War and Europe was seen
to attempt to monopolize use of force.
He also suggested that world war could only be avoided if all nations submitted themselves to
an organization controlled by the strongest power in Europe. It later emerged that he was
hoping that Nazi Germany would win the second world war.
Karl Olivecrona can therefore be singled out for the following claims:-
i) That there is no such things as binding force and therefore no legal rights or duties and

ii) That legal rules cause human behavior by operating on the psychological level.

To him, law was a vehicle of social reform. However, it is enforced by use of force. These were
all contained in his book ‘Law as fact’.

3.ALF ROSS

He was a Danish jurist (1899-…) and was largely influenced by Hans Kelsen (pure theory of law);
he admitted the normative character of the law. He distinguished between normative laws and
descriptive statements about laws in the books. Unlike Kelsen, he confined his attention to
particular legal orders. Like Olivecrona, he maintained that laws need to be interpreted in the
light of social facts and was also concerned with the problem of validity. He tended to highlight
the position of courts like the American Realist.

The Legal Norms

According to him a norm is a directive which stands in a relation of correspondence to social

facts. To therefore say that a norm exists is to mean that a certain social fact exists and this in
turn means that the directive is followed in the majority of cases by people who feel bound to
do so. Legal norms are directives addressed to the courts. They may be derived from a past
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decision and therefore all norms including those of legislation should be viewed as directives to
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courts1. The judgment or order of the court then forms the basis for action by the state which is
a “monopoly of the exercise of force”. It then follows that norms directed at individuals with
regard to behavior are only “derived and figurative”. Later he conceded that from a
psychological point of view there is another set of norms directed to individuals which are
followed by them and felt to be binding.
Norms of law are further divided into:
1. Norms of conduct- deal with behavior and are brought into existence according to a declared
mode of procedure.

2. Norms of competence or procedure- they are indirectly expressed norms of conduct.

His most crucial was the concept of “valid law” which he approached from the point of view of
an observer i.e. validity as a describable phenomenon. This can be established in terms of social
facts by employing empirical methods of observation and verification. Observation has to show
that the law is followed effectively and that that rule has to be felt to be binding by those who
follow it.
Legal norms consist of past decisions and other normative propositions followed by courts and
by which they feel bound, the test of their validity is the predictability of decisions. Norms are
thus operative because they are felt by the judge to be socially binding and therefore obeyed. It
will therefore be valid if a prediction can be made that a court will apply it. Ross says that
validity is not an “all or nothing” concept and expounds that the degree of predictability that a
norm will be applied determines its degree of validity. This degree of probability depends on the
material of experience on which the prediction is built i.e. the sources of the law. Where the
probability is high because the basis is statute or an established precedent, the degree of
validity of the rule is high; where the probability is low because there is new decisive authority,
the degree of validity will be low.

Criticisms Against Ross

1. Originally he ignored the regulative function of norms but only addressing his attention to courts
but later came to modify his stand from the psychological point of view that norms were also
addressed to individuals, this thereby implied that the individual norms were also social facts
and thereby diluting the foundation of his structure that courts played the regulative function.

2. The validity of a law could not be merely established on the predictability of its use because it is
almost impossible to predict the behavior or feelings of a legislator or a judge and his view is
therefore viewed as unrealistic.
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1
Ross prefers “directive” to Olivecrona’s “independent imperative”, since it is difficult to see how an imperative,
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which is independent of command, can command a judge; also there are many legal directives which are not
imperative.

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LECTURE 9: SATURDAY 9TH NOVEMBER 2013- 8.00-11.00 AM (LECTURE HALL B5)

TOPIC 9: CRITICAL LEGAL STUDIES

INTRODUCTION
Critical approaches to law have their roots developed in the American Civil Rights Movement,
American Legal Realism and The European Social Theory.
Critical Legal Studies (CLS) is built upon insights from Social and critical philosophy, Literary
theory.
People identifying themselves with this movement were referred to as ‘çrits’’

HISTORY
Critical Legal Studies (CLS) drew on the radical political culture of the 1960’s generation.
The Critical Legal Studies Movement (CLSM) was the name given to the group of scholars who
wrote about Legal theory using ideas associated with Left politics.
The Realist were firmly based in the Liberalism while the CLSM was more radical in the attempt
to escape the “crippling choice” between Liberalism and Marxism.
CLS received a great deal of controversy and opposition in the mid 1980’s.
Today the Critical Legal Studies Movement’s energy has been passed onto other schools such as;
the Feminist Legal Theory and Critical Race Theory.
In a sense the CLS was a continuation of the Realist Movement.

THEMES AND AUGMENTS OF CLS

Were mainly;
1. The political nature of law – The idea that “law is politics”.
2. The principle of indeterminacy
The radical indeterminacy of law (The Indeterminacy debate in legal theory) - claims that
legal materials e.g. statutes & case law; do not completely determine the outcome of
legal disputes.
That doctrine never provides a determinate answer to questions
3. Principle of Marginality
Argues that the law works against the demands of the poor and subaltern e.g.(women,
ethnic minorities e.t.c),the groups the law claims to protect by serving the interests of
the wealthy and powerful and thus that the belief in legal neutrality is ideological
Even when there is consensus, there is reason to regard the law as a decisive factor in
social behavior.
4. The CLS questions Law’s Central assumption i.e The Kantian Notion of the autonomous
individual. This is where the Law often treats individual petitioners as having full agency vis- a-
vis their opponents.
5. The CLS holds that individuals are tied to their communities and other conditions of life such
that they cease to be autonomous actors in the Kantian mode.
6. Principle of Contradiction
CLS claims that Legal materials are inherently contradictory. i.e the structure of the
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positive legal order is based on a series of binary oppositions e.g. opposition between
individualism & altruism, formal realizability & equitable flexibility.
Argues that Doctrine represents several different, often competing views, none of which
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is coherent enough to be called dominant.

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7. The Principle of Anti-Formalism

CLS rejects the view that there is an autonomous and neutral mode of legal reasoning.

CLS AND REALISM COMPARED

Realists CLS

Were firmly within liberalism More of a radical attempt to escape the choice
between liberalism and Marxism

Rejects formalism Rejects formalism

Saw legal reasoning as autonomous or distinct Rejects the enterprise of presenting a value-free
model of law

Maintains the existence of a viable distinction Does not countenance this distinction
between legal reasoning and political debate Believes there is no disnctive mode of legal
reasoning
Law is politics and does not have an existence
outside of ideological battles within society.

PROPONENTS OF CLS

1. Roberto Mangabeira Unger,

Sought to show that the liberal theory is based on the view that all values are relative
Market economy and democracy become the natural institutions in a liberal society

2. Robert W. Gordon,
On legal history, Gordon shows how traditional evolutionary approach neglects the extent to
which we have control over our lives.
Argued that legal rights are only partially realized and it is therefore crucial to scrutinize the gap
between the right as a promise and the right as it actually operates in the society.
CLS scholars are not opposed to legal rights and they recognize that human rights are the
cornerstone of many political struggles.
But they note that legal rights in themselves do not guarantee freedom from hunger, sickness,
ignorance or any other social skills.
Legal rights should not be seen as an end by themselves.

3. Duncan Kennedy
Rejected the conventional view that, for instance,
i. courts can sensibly interpret language
ii. There is division between public and private law
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iii. The neutrality of rules

iv. Centrality of rights
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CRITIQUE OF CLS
1. These American theorists failed to move beyond criticism to the construction of new
conceptions of law which show law to be capable of effecting and regulating social change

2. They do not overcome the nihilistic (rejection) attitude to law as a means of changing society

3. The offshoots of CLS, i.e the Feminists and the Critical Race Theory (CRT) question the notion of
consensus as formulated by CLS and contend that law ought to be based on the reality of
difference.

4. They argue that CLS does not incorporate or express their distinctive experience i.e that our
experiences of the same circumstances may be very different

5. Other opponents say that CLS undermines respect for law and dedication to law

6. Daniel Farber and Suzanna Sherry treat critical legal studies as a simplistic and a failed assault on
liberal principles and Enlightenment notions of truth

7. Some critics charge that CLS work hampers progressive political movements by challenging the
idea of the subject and human agency.

8. Others view CLS work as unimportant or failing because of inadequate development of specific
policies, strategies, or constructive direction

RELEVANCE OF CLS OUTSIDE THE AMERICAN CULTURE

1. Limitations of a rights-oriented legal process

Political struggles in many countries are based on human rights

countries should therefore be alert of the dangers of relying too heavily on the rights
and freedoms contained in the Bill of rights.

Observations show that there are many defeats for lawyers who attempt to rely on the
Bill of Rights to further interests of inequality

2. Many countries have similar or even more dramatic economic and social inequalities than the
USA and the experiences of the CLS movement are therefore instructive and decisive

3. Power oriented approach to legal practice favoured by CLS may have had a limited impact at the
level of legal theory in many countries but we find many arguments in courts have common
grounds as those discussed by CLS.

Good example is the Nelson Mandela case in South Africa;

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i. Mandela declared the legal system trying him as unjust, immoral and intolerable
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ii. He wondered why he was facing a white magistrate, confronted by a white

prosecutor and escorted by white orderlies – would justice be evenly balanced?

iii. He noted that justice dispensed by the courts was conforming to the policy of
the country however much it conflicts with the norms of justice accepted in
judiciaries throughout civilized world.

ILLUSTRATION
One of the reasons why CLS could not fail to have an impact is that its protagonists have
concerned themselves with the problems of legal practice. Practitioners who felt able to ignore
debates about the rule of recognition or the morality of law.
Critical Legal Theorist believe that the lessons of critique can radicalise law practice. They argue
that “the very public and political character of the legal arena gives lawyers, acting together
with clients and fellow legal workers an important opportunity to reshape the way that people
understand the existing social order and their place way that people understand the existing
social order and their place within it.
Their objective is “to show the way that legal system works at many different levels to shape
popular consciousness towards accepting the legitimacy of the status quo and to outline the
ways that lawyers can effectively resist these efforts in building a movement for fundamental
social change.

EXAMPLE
INEZ GARCIA TRIAL
It involved the notorious trial of a rape victim who shot and killed her assailant. Inez Gracia had two
trials. The first succeeded in that she was not convicted of first degree, but only second degree murder.
But to achieve this they required psychiatric testimony that she was unconscious of what she was
doing.”Politically” this defence degraded Gracia.Her true feelings come out in the following “I took my
gun, I loaded it and I went after them.....I am sorry that I did it. The only thing that I am sorry about is
that I missed (the second assailant).And earlier in the trial she had reacted angrily to the judge’s decision
to disallow testimony about the emotional trauma of rape, screaming at the judge:”why don’t you just
find me guilty? Just send me to jail...I killed the fucking guy because he raped me!”
There was a retrial at which she was represented by a radical feminist attorney Susan-Jordan. The task
faced was “to translate the male-oriented rule of self-defence into a form that would capture the real
experience of a woman facing a possible attack from a man.
Jordan was able to confront the cultural myths about rape (that women invite rape.encourage, like rape
and that it is their fault) by creative use of voir dire. The jury so constructed “was able to view the rape
not as a sexual act caused by male-female flirting but rather as a violent assault.
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LECTURE 10: SATURDAY 16TH NOVEMBER 2013- 8.00-11.00 AM (LECTURE HALL B5)

TOPIC 10: FEMINIST JURISPRUDENCE

BACKGROUND

The feminist jurisprudence movement appears to have originated in the US in the 1970s,
possibly as a part of the Critical Legal Studies movement.
It seems to have taken the form, in its earlier years, of a considered theoretical response by
women jurists and lawyers to a widely-held perception of American jurisprudence as the
product of an exclusively male ideology which, by its origins and nature, effectively excluded
women from significant participation in legal affairs and institutionalised their formal and
informal subservience to men.
The growth of the movement was recognised by the CLS Conference of 1983 which included in
its programme an examination of the basis of feminist jurisprudence.

DEFINITION

There is no easy and single answer on what feminism is.

Moreover, many modern feminists believe that no single theory can account for all aspects of
the domination and oppression of women and some deny the usefulness of general theories, at
least the Grand Theory.
Deborah Rhode describes feminism: “At the substantive level, it implies a commitment to
equality between the sexes. At the methodological level, it implies a commitment to gender as a
focus of concern and to analytic approaches that reflect women’s concrete experiences.
Underlying these commitments are certain core values of broader scope. Any ethical framework
adequate to challenge gender subordination must similarly condemn the other patterns of
injustice with which it intersects.”
This definition embraces all aspects of feminism: e.g.
a) Its goal- which some feminist theorists define as equality between the sexes
b) And other more specifically as rejection of patriarchy and liberation of women; its focus of
analysis- which some see as gender,
c) And other more specifically as women (as devaluated gender identity);
d) Method-approaches that reflect women’s experiences;
e) And also broader ethical concerns about any kind of oppression and injustices.
This definition shows that feminism is goal-oriented; it is not an abstract theory detached from
practice.
Feminist theory is informed by practice; it is grounded in the experiences of different women ‘as
women.’ At the same time, feminist theory aims to effect and transform the (oppressive)
experiences of women.

MULTPLICITY OF THEORIES
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Feminist jurisprudence likewise is not a single theory.

Katherine Barlett defines it as ‘a family of different perspectives or frameworks used to analyse
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the actual, and the desirable, relationship between law and gender.’

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Christine Littleton defines feminist jurisprudence as including all ‘attempts to explain, critique,
and change law on behalf of, and from the perspective of, women.’
While this definition contains a problematic notion of essentialism, it points to feminist
jurisprudence’s grounding in women’s experiences, and its goal to transformation of law.
Indeed, feminist legal theory is practice oriented.
Carol Smart sees feminist jurisprudence as Praxis (borrowing the idea from Marx) –‘a
combination of theory and practice, constructed through the development of a methodology
which ensures that the insights of theory are reflected in the politics of action, and that the
insights of practice are reflected in theory construction.’
We can say that Feminist jurisprudence is a house of many rooms meaning it reflects the
different movements of feminism though what unites feminist theories is the belief that society
, and necessarily legal order is patriarchal.
It seeks to analyse how the law has contributed in constructing, maintaining and reinforcing
patriarchy and it looks at ways in which this can be undermined and eventually eliminated.
Clare Dalton has described feminism as an inquiry and activity dedicated to:
a) Describing women’s subordination, its nature and extent.
b) Through what mechanisms this has happened.
c) Reason why women are still in that position.
d) What can be done to change that?
Heather Wishick says feminist jurisprudence poses the following questions:
a) What have been and what is the all women’s experience in the “life situation”
addressed b the doctrine or area of law in examination?
b) What assumptions, descriptions or definitions of male/female do the law in that area?
c) What is the area of mismatch, distortion or denial created by the differences between
women’s experiences and law’s assumptions and imposed structures?
d) What patriarchal interests are served by the mismatch?
e) What reforms have been proposed in that area of law or women’s life situation? If these
reforms are implemented how will they affect the women both practically and
ideologically?
f) In an ideal world, what would this woman’s life situation look like and what would, if
any, the relationship of law to the future life situation?
g) How do we get there from here?
Dalton argues that we can just research on women’s experiences in a world shaped by law, law
language and legal institutions but also challenge the legal thought as contingent implying, need
for radical changes than amendment offered in the past.

ESSENCES OF FEMINIST JURISPRUDENCE

Feminist jurisprudence is, essentially, a body of legal theory and comment associated with
jurists who accept the view that the progress of society as a whole requires an intensive,
informed struggle against the legal ideologies and practices associated with the patriarchal form
of society.
Within that society has been created and institutionalised, in a variety of forms, discrimination
against, and the consequent oppression of, half of humanity—women.
The movement’s ideologists argue for the analysis and ultimate rejection of a jurisprudential
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ideology which serves, objectively, the specific interests of men, whose dominance is assumed
and asserted, by jurists and legislators alike, to be a ‘natural phenomenon’.
In the words of Lorenne Clark, the movement is concerned with ‘the dominance of those who
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The movement’s ideologists call for scholarship which will produce a basic challenge to the
fictions and myths propagated largely by male jurists, consciously or unconsciously, and derived
solely from a male perspective.
In place of a ‘gendered jurisprudence’, the movement seeks to build the foundations of a legal
theory which will neither exclude nor marginalise the historical experience and the
contemporary situation of women.

Schools of Feminist Jurisprudence

1. Liberal Feminism
Appears to concern itself largely with matters such as equal rights and opportunities and the
extension and intensification of constitutional rights for American women.
It emphasizes the concept of women as autonomous members of society; its theorists have
expressed much sympathy with the need to liberate women from the private domestic sphere
so as to expand opportunities for them in other areas of social endeavor.
General view of the liberal feminists is that subordination of women is caused by social and
legal barriers that block or preclude their access to public sphere of politics and economics.
Liberal feminists demand that liberals follow their own principles of universal human rights and
equality and demand equal treatment of women and men, insisting that women are
fundamentally similar to men.
These theorists argue for law to be gender blind- that there should be no restrictions or special
assistance on the grounds of gender.
Although now mostly outdated (as a theory, but not completely as a legal strategy), liberal
feminists’ insistence on equal treatment has made significant gains to women in the 1960s and
1970s- it had gotten them access to employment, education and politics.
However, while equal treatment strategy proved relatively successful in challenging explicitly
discriminatory laws and ‘unreasonable classifications,’ the tactic was less successful in
challenging laws where different treatment was justified on the basis of purportedly ‘real’
differences.
The rule in difficult to apply in the cases where there is no man as a comparison point- such as
in the cases of pregnancy, and also in relation to problems that mostly women face, like
domestic and sexual violence.
More fundamental problem is the theories’ embracement of ‘male’ standard. Liberal feminists
have not challenged legal concepts nor have they sought transformation of law, they only asked
for its gender-neutrality.
However, if laws reflect only (or mostly) male experiences, making laws gender-neutral does
not help women much; it least helps those most disadvantaged women whose life experiences
least resemble men’s.
Moreover, equal treatment of socially unequal individuals does not result in ‘real’ equality and
in many cases only exaggerate the disparities.
As MacKinnon has argued, under gender-neutral rule, men in effect ‘get preferred because
society advantages them before they get into account, and law is prohibited from taking that
preference into account because that would mean taking gender into account’.

2. Cultural Feminism (Relational Feminism/ ‘Different Voice’ Feminism)

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Recognises the essentially unique nature of women which has contributed to their life
experience.
Feminist jurisprudence is welcomed as a method of effecting a substantial change in the
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The movement wishes to utilise in its campaigns the ‘different voices’ of women which will
testify to an understanding of the significance of women’s comprehension of relationships and
the ‘essential connectedness’ of the human experience.
Cultural feminism reverses the focus of liberal feminism- it is concerned with women’s
differences from men. It argues that important task for feminism is not to assimilate women
into patriarchy, and prove that women are similar to men and can function like men and meet
male norms, but to change institutions to reflect and accommodate values that they see as
women’s- nurturing virtues, such as love, empathy, patience and concern.
This strand of feminism can be traced to Carol Gilligan’s research on moral development of
young girls and boys. In her book In a Different Voice, Carol Gilligan hypnotizes that men and
women typically undergo a different moral development. She finds that male respondents
typically respond to the moral problems with an ‘ethic of justice,’ while her female respondents
typically respond with an ‘ethic of care.’ ‘Ethic of justice’ involves abstracting the moral
problems from the interpersonal relationship and balancing of rights in hierarchical fashion,
while the ‘ethic of care’ represents a relational and contextual approach to moral problems,
which values empathy and relationship. Gilligan argues for recognizing the values of both
voices, and in particular for not devaluating the ‘ethic of care.’
Feminist legal scholars were quick to apply different voice feminism to legal topics. The
resemblance between the ‘ethic of justice’ and dominant legal discourse made Gilligan’s
methodology a useful tool to critique the law and to suggest alternative solutions. One of the
most important and very controversial examples of cultural feminist arguments in law was
Robin West’s article Jurisprudence and Gender.
In this article, West claimed that whole modern jurisprudence (liberal and critical) was
‘masculine’ (because it proceeded from a ‘separation thesis’- the belief that individual was first
and foremost materially separate and apart from individuals, which, she claimed was not true
for women who were materially connected to other individuals, through critical experiences,
notably pregnancy and heterosexual penetration) and pleaded for greater volume of feminist
scholarship grounded in women’s subjective experience. She was widely criticized for tracing
the origins of sexual differences to biology, and for her focus on intercourse and pregnancy, and
essentialist notion of women as (heterosexual) mother.
Other examples of using ideas of a ‘different voice’ in legal discourses include Judith Resnik’s
questioning of the abstract ideas of impartiality and detachment of judges, Leslie Bedner’s
revaluation of tort law, Kin Kniports’ revising of evidentiary privileges, Carrie Menkel-Meadow’s
proposals of reforming of legal processes.
Cultural feminism has invoked a lot of criticism from different feminist scholars. The most
recurring criticism was that the portrait of women painted by cultural feminism too closely
resembled the 19th century stereotyped portrait of woman as naturally emotional, domestic
and nurturing, and that it slides comfortably with socio-biologism.
Joan Williams has, for example, critiqued cultural feminists for ‘providing a respectable
academic language in which to dignify traditional stereotypes.’ MacKinnon has questioned the
authenticity of a woman’s voice in conditions of male domination, and warned against
celebrating difference: ‘For women to affirm difference, where difference means dominance, as
it does with gender, means to affirm the qualities and characteristics of powerlessness.’
The dangers of cultural feminism to which critics pointed to – possibility of transforming
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differences seen as a value to differences which perpetuate bias and discrimination- can be
seen in practice, in for example, labour laws that preclude different types of woman’s work on
the grounds of the need to protect them, or in legal reasoning which justifies ‘unequal
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treatment’ on the basis of women’s inherent differences even when that means perpetrating
women’s subordinate position.

3. Radical Feminism (DOMINANCE FEMINISM)

As it relates to jurisprudential thought, stresses the importance of perceiving women as one
class dominated by another, with a resulting class struggle.
Changes in laws which favour the male class are urgently required if inequalities of power are to
be brought to an end.
Sex equality demands for its attainment a correctly motivated struggle in which the existing law
will be utilized in deliberate fashion so as to provide affirmative action which will result, for
example, in the suppression of pornography, which denigrates women.
Radical feminism does not see the issue of gender equality as an issue of difference and
sameness but rather as issues of domination of women by men.
The author of ‘dominance approach’ is Catherine MacKinnon, probably the most influential
legal feminist of contemporary area.
MacKinnon criticizes both liberal and cultural feminism and Aristotelian formula of equality that
they invoke (‘treat likes alike, and unlikes unlike’).
She claims that both standards (which she calls ‘difference’ approach) embrace ‘maleness’ as a
norm:
‘Concealed is the substantive way in which man has become the measure of all things. Under the sameness

standard, women are measured according to our correspondence with man, our equality judged by our proximity

to his measure. Under the difference standard, we are measured according to our lack of correspondence with

him, our womanhood judged by our distance from his measure… Approaching sex discrimination in this way- as if

sex questions are difference questions and equality questions are sameness questions- provides two ways for the

law to hold women to male standard and call that sex equality.’

She sees equality question not as a question of sameness, but as a question of distribution of
power, and gender question not as a question of difference but as question of male supremacy
and female subordination.
Her ‘dominance approach’ is therefore not concerned with the Aristotelian formula of formal
equality; rather its test is whether laws and practices in question perpetuate subordination of
women. As such, it aims at ‘substantive equality.’
The dominance approach centre’s on most sex-differential abuses of women- namely violence
against women (she specifically focuses on sexual harassment, rape, domestic violence against
women and children, prostitution, pornography), that liberal and cultural feminism could not
confront by its standards. MacKinnon sees appropriation of women’s sexuality by man as
central instrument of male dominance.
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Her theory of sexuality has been widely attacked as one dimensional, as was her representation
of women (almost exclusively) as victims. Lesbian feminists in particular warned feminist not to
base their positions on the experiences of heterosexual women alone.
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While her view of sexuality as an instrument of male dominance might have been over-
exaggerated, I think that her connection between sexuality and gender inequality is justified,
and that present social construction of sexuality does reflect and at the same time help
maintain gender inequality.
Gender inequality is, among other things, dependent on men’s control over women’s sexuality,
and law plays significant role in maintaining gender inequality through its regulation of
women’s sexuality.
Many feminists have been exploring the connection between sexuality, gender and law. As
noted above, Mary Jo Frug has discussed how legal control of women’s sexuality construct
meaning of their bodies and their gender identities, and Carol Smart has shown rape laws and
rape cases construct meaning of heterosexual intercourse and women’s sexuality. Lesbian
feminist have in particular analysed the role of ‘heterosexism’ – ‘pervasive cultural presumption
and prescription of heterosexual relationships’ in construction of gender and maintaining
gender inequality.’

4. Post-Modern Feminism
Post-Modern feminism rejects equality and views it as ‘a construct which must be
reconstructed’.
The very idea of ‘a woman’s point of view’ is cast aside as a fiction which, in practice, merely
serves to bind the individual to her identity as a woman.
Practical solutions to concrete legal situations involving women are required rather than
elegant abstract notions of the nature of law. In particular, to indulge in arguments with the
upholders of a male-dominated jurisprudence on terms of its own choosing can never be to the
advantage of women as a group.
Postmodern feminism does not represent a single theory. Moreover, postmodern feminists do
not believe in a single theory or a single ‘truth,’ and are particularly opposed to creation of any
‘Grand Theory.’
Often following Derrida, many postmodern feminist use techniques of deconstruction to expose
internal contradictions of apparently coherent system of thoughts. This has been a useful
method of debunking patriarchal structures of law.
Other postmodern feminists, following Lacan, are interested in reinterpreting traditional
Freudian psychoanalysis, with all its implications for biological determinism and subordination
of women.
Postmodern feminist oppose any essentialism and deny that categorical, abstract theories
derived through reason and assumptions about human nature can serve as the foundation of
knowledge.
Postmodern feminists also reject dominant view of a (legal) subject as autonomous, rational,
self-interested, and free-willed individual. Rather, as Katherine Barlett writes, they see
individual as ‘”constituted” from multiple institutional and ideological forces that, in various
ways, overlap, intersect and even contradict each-other.’
They also see the dichotomy of victim and oppressor a false one (as any other dichotomy). For
example, Patricia Williams has explored the instability of personal identity by reflecting on her
own complex personal identity in which one part of herself dispossesses the other.
Mary Jo Frugand Carol Smart have stressed the importance of language-in particular legal
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discourse- in the construction of both personal identity and power in the society. This
postmodern view of self accords with the view of diversity stage theorists.
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Postmodern feminists do not offer single solution to the oppression of women, first because
they don’t believe there is a single solution to anything, and second, because they to propose
the solution would suggest that all women’s experiences are alike and that women’s oppression
is unitary thing.
They believe that attacking oppression of women requires contextual judgment that recognize
and accommodate the particularity of human experience.
The main objection to postmodern feminism, particularly to those views associated with
deconstruction, has been that it tends to be better in destroying theories than building them,
which many see as not useful to feminism in a long run.
Also, as postmodern feminist are highly sceptical to the category of ‘women’ as a basis of
grounding theory or political action, many feminists have attacked postmodern feminists as
precluding political action and reaching the goal of ending women’s oppression.

Postmodern feminism avoids the idea of unitary truth, of objective reality. They readily admit
that gender categories, are mere social constructs. To them, Equality too is a social construct.
These social constructs are products of patriarchy, and are in need of a feminist reconstruction.
In her article, LOST BETWEEN RHETORIC AND REALITY, Justice Nancy Baraza describes how
public spheres of activity are constraining to women and advantageous to men. Women’s
productive roles and their responsibilities for domestic labour limit their association with
resources that are highly valued while men are freed from domestic responsibilities. Men are
assured of control of highly valued resources.
She asserts that gender inequality in Kenya is a large socio-cultural and political problem. It is a
problem created social structures; for example, women are excluded from adequate
participation in political structures the result of which, as she says, the process does not take
into account of gender needs, leading to inequality of outcomes.
Postmodern feminism tells us to beware of searching for a new truth to replace the old.
According to them;
a) There is no such thing as the essential “woman.”
b) There is no thing as a woman’s point of view.
c) There is no single theory of equality that will work for the benefit of all women.
d) There is probably no single change or goal that is in the best interest of all women.
Postmodernism views the category “woman” as being so multifarious that it denies unitariness,
how then can it ever ascribe to be feminist, since feminism is a theory that focuses on the
unitary category “woman?” An answer to this would be, postmodern feminism does not focus
on the category woman; rather, it focuses on the situated realities, women in plural.
Postmodern feminists question earlier feminist’s attempts to redefine the category “woman.”
They argue that any definition, even one articulated by feminist is limiting and serves to tie an
individual to her identity as a woman. Postmodernist also are of the view that feminist who
support any single definition of “woman” are tending towards essentialism.
Postmodernist tend to think that the limiting definition of woman found in radical and cultural
feminism which tends towards essentialism, is abstracted from the experience of white women
only. This narrow definition of woman according to post-modernists cannot and will not earn
feminists maximum liberation.
Nevertheless, postmodern thought poses a dilemma. Any theory requires some degree of
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abstraction and generalization. Thus, if feminists embrace the particular situated realities of all
individual women in plural, it will be hard to find a singular theory to combat oppression.
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THE STRUGGLE AGAINST PATRIARCHY

The term ‘patriarchy’ is used in the literature of feminist jurisprudence to refer to a society
which rests upon the principles and practices of male domination and which produces
jurisprudential ideologies which seek to justify and legitimise this domination.
Law in a patriarchy emerges as a powerful symbol and vehicle of male authority and
domination.
In the name of ‘tradition’, ‘nature’, or ‘objective reality’, the law and legal institutions of a
patriarchy seek to induce people to accept specific attitudes to women and to accept the status
quo as just and beneficial, with the result that (in the words of Professor Catherine Mackinnon,
in Feminism Unmodified (1987)) ‘the dominance of the male group is made to seem a feature of
life, not a one-sided construct imposed by force for the advantage of a dominant group’.
Feminist jurisprudence is characterized by a united rejection of patriarchy; indeed, some jurists
view its work as, essentially, ‘the analysis and critique of law as a patriarchal institution’.

THE PERVASIVE NATURE OF PATRIARCHY

The structures of a patriarchal society affect that society’s assumptions, attitudes and practices:
this is a point of view which is stressed in the literature of feminist jurisprudence.
The law, in particular, is not immune to the pervasive teachings of male-dominated political,
social and legal theory.
Jurisprudence in a patriarchal society is steeped in age-old views of the place of women in its
structures.
Professor Janet Rifkin, of Harvard, in Toward a Theory of Law and Patriarchy (1980) suggests
that patriarchal legal theory pays particular attention to the part females shall and shall not play
in the social order, with the result that law in relation to women ‘asserts a mythological vision
which is believed by many to present an accurate statement of the world’.
All facets of contemporary jurisprudence in the patriarchal society are viewed by feminist jurists
as reflecting the distortions of ‘gendered thought-patterns’.
Property law, the rules concerning damages in the law of torts, the attitudes of the criminal law
to assault and battery, are interpreted by feminists as the product of legal thinking which
distorts social reality by denying the exploitation and subordination of women.
In particular, family law is seen by many feminist jurists as an outstanding example of the
embodiment of an approach to gender-related issues which is false and, therefore, misleading.
In Family Law Matters (1993), Professor Katherine O’Donovan, of London University, analyses
the ideology of the family as reflecting assumptions, often unstated, concerning gender,
marriage and children. She concludes that the theory and practice of family law have resulted in
the institutionalization of injustice affecting women, and she emphasizes that there is doubt as
to whether the tradition in which women were openly subordinated has disappeared.
Recent controversy concerning the law in relation to divorce, domestic violence, financial
support on the breakdown of marriage, is interpreted within the discourse of feminist
jurisprudence (and elsewhere) as illustrating mounting dissatisfaction with the overt
discrimination practised against women in our time.
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What Is To Be Done?
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The destruction of patriarchal ideology involves the creation of a new jurisprudence by women
who view society, law and legal institutions from their specific, unique perspective.
In pursuance of this task they will find ideological allies, but they themselves must provide the
necessary impetus for change.
A new perspective demands new tasks and a new methodology of jurisprudential investigation.
Feminist Legal Methods (1990), Professor Kathleen Bartlett outlines a scheme of enquiry
appropriate to the aims of feminist jurisprudence, which requires ‘the organisation of the
apprehension of truth’. The existing formal methods of legal reasoning (deduction, induction,
analogy, etc) should be utilized but should be supplemented by the following specific modes of
investigation.
1. Asking The ‘Woman Question’. This technique of investigation is
intended to expose the ‘gender implications’ of legal rules which have
the appearance of neutrality and objectivity. What, for example, are the
‘gender implications’ if any, of the ‘improved definition’ of rape given in
the Sexual Offences Act.
2. Feminist Practical Reasoning. Legal decisions ought to be ‘more
sensitive to the features of a case not already reflected in legal
doctrine’. According to Professor Bartlett, women’s particular sensitivity
to specific situations and general context, and their ability to
differentiate the significant and the insignificant, are of particular value
in this type of investigation. It might be applied, for example, to a study
of the principle of diminished responsibility as it relates to cases
involving abused wives: see, e.g., R v Ahluwalia (1993).
3. Consciousness-Raising. Professor Bartlett argues that this investigatory
technique offers to women a means of testing the validity of accepted
legal principles ‘through the lens of the personal experience’ of women
who have been involved directly in situations concerning, eg, domestic
violence, desertion.
By the use of these techniques, women will fashion the ideological instruments appropriate for
viewing the legal problems of a patriarchal society from a new perspective.

The Rejection of the Formal Ideology of ‘Equality’

‘Equality’ is rarely perceived by feminist jurists as a desirable end in itself. In Reconstructing
Sexual Equality (1987), Professor Christine Littleton states categorically that ‘equality’, which has
been ‘the rallying cry of every subordinated group in American society’ can no longer be
accepted unambivalently by those who have embraced the principles of feminism.
A victory for women in a campaign for equal pay is not necessarily to be perceived as a blow
against patriarchy; the admission of women to the marine corps does not affect the
fundamental pattern of male domination of society; the passing of a Parliamentary bill which
seeks to make sexual harassment at the place of work an offence is not necessarily to be
interpreted as a successful assault on the commanding heights of masculine domination.

Criticisms of Feminist Jurisprudence

Early contributors to feminist jurisprudence forecast that the intensity of opposition to the very
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concept of a legal theory based upon the goal of a non-patriarchal society would grow as the
radical nature of its proposals became evident: in the event this has happened.
The justification for a jurisprudence which totally rejects ‘male-dominated law’has been rejected
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Male and female jurists and practitioners have cautioned against attempts to present sectional
interests in terms of universals, and have urged a rejection of the divisive nature of
‘jurisprudence from women’s perspective’.
A changed society and an appropriate jurisprudence will emerge, it is argued, only from the
united activities of men and women.
The presumption that the ‘new perspective’ advocated by feminist jurists will be free from the
type of distortion which is held to characterise the ideology of patriarchy is arguable.
There is criticism, too, of the tendency of some prominent theoreticians of the feminist
movement to write off the intention and effect of legislation which diminishes discrimination
against women.
A jurisprudence which is concerned with long-term goals to the exclusion of short-term gains is
likely to be ineffectual in providing a guide for action.
It is of interest to note, however, that in the US, the liberal feminist wing of the movement has
fought vigorously and effectively against the exclusion of women from the administration of
estates, and that Professor Catherine Mackinnon and Andrea Dworkin, attorney and radical
feminist, were able to inspire and direct a highly publicized campaign with the object of making
the publication and sale of pornography a violation of women’s civil rights: see Dworkin’s
Against the Male Flood:Censorship, Pornography and Equality (1993).
Here, it could be claimed, is a jurisprudential ideology in the service of society as a whole.

CRITIQUES OF POSTMODERN FEMINISM

a) The main objection to postmodern feminism, particularly to those views associated with
deconstruction, has been that it tends to be better in destroying theories than building them,
which many see as not useful to feminism in a long run.
b) Many feminists have attacked postmodern feminists as precluding political action and reaching
the goal of ending women’s oppression.
c) A major critique of postmodern feminism is it’s seemingly identification of women with the
feminine and the biological body. Many view postmodern feminists as valorizing women and
feminine over male and masculine.
d) One of the most prevalent criticisms in general is its apparently nonsensical writings. Much of
the writings of postmodernists reject linear constructions in their writing. And so accusations of
eliticisms have leveled at the postmodern feminism as a whole.
e) Because the relationship between postmodern and feminism is an uneasy one, feminists who
classify themselves as postmodern feminists often have difficulty explaining how they can be
both postmodern and feminism.
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LECTURE 11: SATURDAY 22ND NOVEMBER 2013- 8.00-11.00 AM (LECTURE HALL B5)

TOPIC 11: CRITICAL RACE THEORY

The Critical Race Theory emerged in the mid 1970s with the realization that the Civil Rights
Movement of the 1960s had stalled, and that many of its gains were in fact, being rolled back.
Derrick Bell and Alan Freeman began the works on this theory, which has grown to now have
several books and more than two hundred articles on the same.
Critical Legal Theory grew as minority scholars developed a race consciousness form of legal
criticism. Minda explains that race consciousness characterizes the jurisprudential perspective
of minority scholars who emphasise the need for fundamental changes in the way the law
constructs knowledge about race.
Central to Critical Legal Theory is the view that racism is not aberrant but rather the natural
order of American life. In an earlier contribution, Richard Delgado accused civil rights
scholarship of being held captive by a group of elite while “imperial scholars” who created a
“scholarly tradition” that systematically excluded or minimalised the participation of minority
scholars. More recently, he has written how elites will encourage racial advances for Blacks only
when they promote white self-interest.
Critical Legal Theory is critical to liberalism. It offers revisionist, racial critiques of civil rights
scholarship. Critical Legal Theory argues for the importance of race consciousness; which means
to be aware that race is linked to identifiable communities in American society that are
“different from the community of Anglos in America”.
Critical Legal Theory believes it can offer distinct normative insights, it commonly employs
narrative, storytelling to tell it as it really is; to bring out the social reality of the victim’s story.
There are themes that have been deemed to fall within the Critical Race thought:

1. Critique of Liberalism

Critical Race Theory writers show their discontent with liberalism by either focusing on it in their
articles or by targeting a mainstay in jurisprudence such as: affirmative action or neutrality.

2. Storytelling/Counter Storytelling and “Naming One’s Own Reality”

Many Critical Race theorists consider the mindset of the majority as the principal hindrance to
racial reform. In order that these power-laden beliefs may be analysed and challenged; some
writers use counter stories, parables, chronicles and anecdotes to reveal the cruelty and self-
serving nature of these power-laden beliefs.

3. Revisionist Interpretations of American Civil Rights Law And Progress

One recurring source of concern for critical scholars is the reason behind the inefficacy of the
American anti-discrimination law in redressing racial inequality, or why progress consists of
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periods of advancement and others of retrenchment.

4. A Greater Understanding of The Underpinnings Of Race And Racism

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A number of critical writers seek to apply insights from social science writing on race and racism
to legal problems. Knowing how different settings encourage or discourage discrimination, aids
in deciding whether the movement towards Alternative Dispute Resolution is likely to help or
hurt the disputants.

5. Structural Determinism

A number of Critical Race Theory writers focus on ways in which the structure of legal thought
or culture influences its content; frequently in a status-quo maintaining direction. Once the
constraints are understood, racial and other types of reform will be worked more effectively.

6. Race, Sex, Class and their Intersections

Other scholars explore whether race and class are separate disadvantaging factors; or the extent
to which the interest of black women is or is not adequately represented in the contemporary
women’s movement.

7. Essentialism and Anti-Essentialism

Scholars are concerned with the appropriate unit for analysis e.g. Do middle and working-class
African Americans have different interests and needs? Do all oppressed people have something
in common?

8. Cultural Nationalism/ Separation

An emerging strain within the Critical Race Theory holds that people of colour can best promote
their interest through separation from the American mainstream. Some believe that preserving
diversity will not only help the people of colour, but also the other people.

9. Legal Institutions, Critical Pedagogy and Minorities In The Bar

Women and scholars of colour have been for a long time concerned with representation in law
school and the bar.

10. Criticism and Self-Criticism; Responses

Works of significant criticism addressed at Critical Race Theory either by outsiders or people
within the movement; together with the responses to such criticism are included.

Critical scholars derive their vision of legal ideology from the work of Antonio Gramsci who
developed the concept of hegemony .
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The concept of hegemony allows Critical scholars to explain the legitimacy of American society
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Freeman, Mark Tushnet, Peter Gabel and Robert Gordon are of the same view that the “state
abstraction” brought about by hegemony causes people to act as though the illusions are real,
therefore creating their own oppressive world, moment by moment.

Critical Legal Theory has developed a critique of the critique of Critical Legal Studies. Kimberle
Crenshaw argued that Critical scholars claim that their works and research was on domination;
yet few have made the effort to specifically address racial domination, as they ignore the reality
of the racially oppressed. She adds that racism not liberal ideology is the real cause or source of
racial domination.

Gordon, Freeman, Tushnet and Gabel fail to analyse racism as the principal basis for Black
oppression. This failure of the Critics also renders their prescriptive analysis of trashing legal
ideology unrealistic, because it does not free the Black people of their oppression.

The Critics err in saying that domination by consent does not present a realistic picture of racial
domination. This is because Black people do not create their own oppressive world, but are
coerced into living in worlds created by others.

Some of what the Critical Race Theory has no controversy. Though, there are some aspects that
may be found to be contentious that minority scholars are the ones who can understand certain
truths about this theory.

The Critical Race Theory has received criticism from Black scholars and others, e.g. Randall
Kennedy, who has argued that race consciousness critiques of the Critical Race Theory scholars
are bad for all scholars because they base intellectual standing on racial status; making it anti-
intellectual.

A number of well-respected academics at a symposium in the Harvard Law Review rejected

Kennedy’s argument. Barnes argues for placing the Critical Race Theory scholarship in the need
for cultural diversity in the post-modern world. Ball is of the view that the debate involves
conflicting ideologies; therefore what is required is a translation (people living in different
worlds are able to make an impact on one another).

As a response to the Critical Race Theory, other movements have emerged:

1) Latino –Critical Studies (Lat-Crit)

It is the most prominent study as Latinos/as will soon exceed the population of African
Americans in the United States of America. It emerged in the 1990s and had analysed issues
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such as
i. Language discrimination
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ii. English only laws

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iii. Restrictive immigration policies and laws

Berta Esperanza Hernandez-Truyol said that the race, ethnicity and nationhood of Latinos/as are
manipulated by the dominant society to enforce a set of ideas which render them foreigners in
their own country of birth, therefore depriving them of their identity. This is inconsistent with
notions of equality and equal participation purportedly inherent in the dominant model. Lat-
Crits have formed alliances, though not all have been successful, with the Blacks and Asians over
common issues such as affirmative action. They have debated about discrimination of “darker”
skinned Latinos/as by “lighter” skinned Latinos/as and the effect of their machismo. They have
uncovered how the Black/White binary paradigm of race presupposed in anti-discrimination
laws has denied justice to non-black minority groups.

2) “Whiteness Studies”

Haney Lopez, a Latino Law Professor shows how the American society and the courts
constructed the category of “Whiteness” in naturalization decisions in cases brought by Indians,
Japanese, Arabs or any other “near-white” person.

3) Asian Studies

These came up due to the increasing interest of Native Americans and Gypsies

4) Interest in those of Middle Eastern origin

5) Critical Race Feminism

Has emerged to address issues such as relations between men and women of colour,
sterilisation of black women and the impact the changes of welfare laws have on African-
American families.

6) Critical International Rights

The globalisation of the Critical Race Theory reconfigures the human right idea so that it
includes human dignity and personhood. This is why such issues as female genital mutilation,
sex tourism are addressed.
Critical scholars observe that though traditional human rights advocates are similarly
committed, their emphasis is placed more on rights, treaties and other traditional remedies
than solidarity.
The year 2005 saw the aftermath of Hurricane Katrina being seen through a racial lens. Race
has been defined as: a biological feature, a logical geographic distribution, a group linked by a
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common descent or origin, a population connected by a shared history, a nationality or

geographic distribution, a “sub-species” and a social and political construct.
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Sharona Hoffman argues that the law should discontinue the use of the word “race” because of
the expressive power of the law and the harm the concept has occasioned. The law is an
important symbol as it can shape public ideology. It suggests that people can be divided into
sub-species, some of whom are inferior to others. It ignores those who do not fit into a single
“race” category. There is ambiguity when racial inequality is referred to as it could mean colour,
socio-economic status, continent of origin or any other factor. There may be a range of
alternatives that can be used depending on the target beneficiary class or the purpose of the
statute. Critical Race theorists are beginning to address these issues.
R.D. Barnes distinguishes the themes of Critical Race scholarship. He says that the discussion is
not complete, but it offers an illustration of the core features of the works that present the
concepts of racial distinctiveness.
Dual consciousness delineates the conscious perception of people of colour as they are
reminded their lives, existence and concerns are valued differently, when and if at all by the
White majority.
As people of colour are told to adopt mainstream cultural values, they are invariably relegated
to a position of fighting for that which the Whites feel entitled to. The late 19Th century
doctrine of “White people only” has been replaced with “White people first”.
Whenever African Americans speak of how racism has touched their lives, there is always a
pervasive sense of violation.
Minorities have insisted on the need to incorporate the concrete, practical realities of oppressed
people into agendas for reform. Critical Race theorists challenge that for people of colour,
especially African Americans, the symbolic function of rights has served as a sanction against
undesirable treatment and as a tool for empowerment that holds a greater significance than it
does for Whites.
The Critical Race theorists have refused to ignore the difference between race and class as a
basis for oppression. The Critical Legal scholars imply that the focus upon race is misguided
because it hampers efforts to foster class-based resistance to what they view as economic
oppression.
The acute consciousness of minority scholars often serves as an added impetus to seek concrete
changes in the social and political landscape.
A. Harris is of the view that the goal of the Critical Race Theory is the liberation of people of
colour while adopting a method of critique that questions the confident certainties embedded
in the very concepts “people of colour” and “liberation”. The Critical Race Theory, feminism and
legal scholarship in its entirety is plagues by the tension that is caused by reliance on both
modernist and post-modernist narratives which suggest pervasiveness to the problem.
As a reaction to the nihilist threat of post-modernism, some writers argue that it is antithetical
to feminism and should as a result, be rejected by feminist theorists. Race-Crits should also take
up the same view, but Harris sees there being two mistakes upon the taking up of that decision:
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a) Post-modernism does not represent an individual alternative to

modernism that can either be accepted or rejected; it is the voice
of modernism’s discontent and as such is not easily quieted.
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b) Part of the reason why Race-Crits have tried to distance

themselves from the traditional civil rights scholarship is because,
the “optimistic faith” in reason, truth, blind justice and neutrality
have not brought about racial justice but rather have left the
“ashes being stirred”.
Through their commitment both to anti-racism \ and to affirming the cultural differences that
the concept of “race” has produced, Race-Crits bring a distinctive perspective to the
jurisprudential “problem of the subject”.
Race-Crits are part of a global movement by intellectuals in previously colonized nations not to
abandon the Enlightenment ideals of freedom and liberal democracy but to make good on their
promises.

Critiques to the Critical Race Theory

Kimberle Crenshaw was of the view that thinking in terms of rights may have been radically and
liberally empowering for Blacks.
The expression of rights played a central role in the development of the Civil Rights Movement,
because Blacks wanted to be included in the American political plan and structure.
Tushnet was of the view that thinking towards rights does not go hand in hand with solidarity
and does not define how to be politically effective.
His critique of rights is not sufficiently related to racism, making his arguments unpersuasive.
Robert Gordon criticizes this theory for the role under emphasis of coercion plays in racism. He
says that the State operates to suppress some groups when there is a unanimous decision that
the coercion in necessary.
Crenshaw says that Gordon does not make it easy for this statement to be understood. Gordon
implies that the Blacks are coerced into a certain way of thinking and living, unable to change
that position because they cannot imagine its alternative. Crenshaw argues that to put such a
statement out would mean ignoring the history of coercive racial subordination.
Freeman criticized this theory on its failure to analyse racism as hegemonic. His discussion on
anti-discrimination law fails to include the critique in the historical and ideological conditions as
its foundation. He also fails to acknowledge the consequences of this history of racism (that
Blacks have succeeded in diminishing their isolation by relying in the same ideologies Freeman
attempts to delegitimize.
Crenshaw argues that Freeman does not analyse how the Whites were on the defensive,
because the Blacks got some privileges at their expense. She goes on to add that Freeman’s
failure to discuss the retrenchment in racial terms downplays the force of his analysis especially
with regard to racial character of the subsequent political retrenchment.
From the above discussions, it can be seen that the Critical Legal theorists found a lot of faults
with the Critical Race Theory, but on the other hand, there were loopholes in their arguments,
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therefore giving the Race-Crits an “upper hand.”

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The Critical Race Theory and the Feminist Theory

The Critical Race theory is similar to the Feminist theory in various aspects. Both theories came
about as a result of the dissatisfaction with majority legal theory that was taken to be an
expression of dominant theoretical accounts of law and the legal system. The critiques started
with Black feminists exposing race essentialism in feminist theories and lack of gender
consciousness in critical race theories. Feminism is embedded in the subjugation of women
while the Critical Race theory is as a result of the forces of slavery, segregation and the civil
rights movement in the United States of America. The Critical Race theory and feminism share
uneasiness with dominance of white men.
The relationship between the Critical Race Theory and feminist jurisprudence is in part
recognition and rejection of the concern of feminists with a stereotypical white, middle- class
woman. Kimberle Crenshaw demonstrates how black women do not fit the categories of
discrimination based on sex because they are not able to prove the basis of discrimination
wholly on sex. Neither are they able to show the basis of discrimination exclusively on race
because they do not fit the categories of racial discrimination. In this case, she argues for a
change in perspective which puts those who are the most marginalized at the centre of analysis.
Both theories place central importance on power, economics, and social construction. This is to
show that these are ideologies that would help the minority groups grow politically, socially and
economically as their opinions would be taken into consideration.
The Critical Race Theory shares certain objectives of radical feminism but has larger ambitions.
The centrality of the public-private sphere was alluded to by Olsen, a radical feminist; where the
law was reluctant to intervene in the home to tackle crimes such as domestic violence. For the
Critical Race Theory, it conveys the plight of the middle class woman, thereby leaving out the
black woman who works outside the home. This means therefore, that CRT has revealed several
white-oriented models of females, femininity and sexuality.

The Critical Race Theory and Post modern Jurisprudence

In some aspects, the Critical Race Theory espouses a postmodern view of the law
(confrontations of some key ideas and ideals of the Enlightenment) and deploys post modern
tools such as deconstruction to reveal its racist entrails.
The Critical Race Theory is less willing to discard the concept of the subject or of legal rights.
Some Critical Race Theory scholars embrace the modernist values of equality and rights. This
ambiguity has created a discussion where the Critical Race Theory may be described as post
modern.
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LECTURE 12: SATURDAY 29TH NOVEMBER 2013- 8.00-11.00 AM (LECTURE HALL B5)

TOPIC 12: NORMATIVE JURISPRUDENCE

1. LAW AND MORALITY

The links between law and morality constitute the subject matter of an age-old jurisprudential
debate.
Ought the law to concern itself with morality? Ought the law to reflect shifts in public opinion
concerning moral questions?
What significance ought to be attached to Lord Simonds’ assertion in Shaw vs.DPP (1962) that
the courts retain a residual power, where no statute has intervened to supersede the common
law, to superintend those offences which are prejudicial to the public welfare?
Ought the law to intervene in order to prevent an individual’s chosen course of action which
moves him along ‘the primrose way to the everlasting bonfire’? (See, more recently, the
decision of the House of Lords in R vs. Brown (1993)—consent is no defence to sado-
masochistic assault.)

a) KORKUNOV
Korkunov, in his Theory of Law (1900), states: ‘The distinction between morals and law can be
formulated very simply.
Morality furnishes the criterion for the proper evaluation of our interests; law marks out the
limits within which they ought to be confined.
To analyse out a criterion for the evaluation of our interests is the function of morality; to settle
the principles of the reciprocal delineation of one’s own and other people’s interests is the
function of the law.’

b) JS MILLS

John Stuart Mill was an important figure articulating the liberal platform, pressing for various
liberal forms and serving parliament.
Best works were on utilitarianism and on Liberty which he applied to issues of political and
sexual equality.
He was raised in the tradition of philosophical Radicalism, made famous by Jeremy Bentham,
John Austin and his father James Mill which applies concepts of self conscience and a systematic
view to issues of institutional design and social reform.
Utilitarianism assesses actions and institutions in terms of their effect on human happiness and
enjoins us to perform actions and perform actions so that they maximize human happiness.
J.S Mill insistence is that each and every person’s happiness is of importance and matters
equally
Mill was exposed to an extremely demanding education, shaped by utilitarianism principle.
He learned Greek at the age of three, at eleven he helped edit his father’s history of India and at
the age of 13 he began a systematic study of political economy.
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The intellectual regimen laid down by his father became too much and soon intellectual and
emotional stress proved too much.
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His depression made him concerned with the development of well rounded individuals and with
the role of feeling culture and creativity of happiness in individuals.
He became highly critical of the moral philosophy.
JS Mill argued, in terms which were to be used repeatedly as a reference point during the Hart-
Devlin debate, which the only purpose for which power can be rightly exercised over any
member of a civilized community, against his will, is to prevent harm to others.
(Subsequent commentaries questioned the precise meaning of ‘harm’—did it refer exclusively
to physical injury? Ought it to include mental, emotional injury? What is meant by ‘others’?
Does it include, for example, a foetus? How should Mill’s doctrine be applied to, say, adultery, or
the use of cannabis?

LIBERTY AND ITS PRINCIPLES

When one is discussing Law and Morality the biggest question is how far can the state or law go
to limit civil liberty (What business does the law have to control what people do in the private
and they don’t harm any one)?
Liberty has four major principles

a) Paternalism
Legal paternalists believe that it is the right of the state to use its laws to get people to do things
for their own good or to desist from doing things that might harm them.
Argument for it is that the state usually knows better for an individual
Argument against it is that the state shall not treat competent adults like children.
Fienberg accepts weak paternalism i.e. preventing self harm is only permissible if the behavior is
substantially non-voluntary.
Individual liberty is justifiable limited to prevent harm to one self.
J.S Mills rejects this principle because paternalism involves the state eroding individual liberty by
behaving like a parent and forcing the citizen to behave in their best interest.

b) Offence Principle
Individual liberty is justifiably limited to prevent offence to others.
Some behaviors may be offensive but not harmful.
Examples are obscenity, loud noises, bad smells and public nudity.
The arguments for censorship of pornography on the basis of obscenity seem to rest upon the
legal moralism and offence principles.
Finber’s classes of offence
i. Affront to senses – body odor and blarring radio
ii. Disgust and revulsion – eating insects, vomiting
iii. Shock to moral, religious oatriotic sensibilities – mistreating of corpses
iv. Shame and embarrassment – naked persons in public
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v. Annoyance – person keeps talking to you

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c) Harm Principle
Individual liberty is justifiably limited to prevent harm to others.
J.S Mill holds that only the harm principle can justify the limitation of liberty.

d) Legal Moralism
Law is perceived to be an enactment made by the state, backed by command and physical
coercion, the breach of which is punishable by courts of law.
laws are based mainly on the moral views of a society
Morals and ethics can be described as the principles that govern persons and groups intrinsically
on what they would perceive to be good and just and what is not.
Morals differ from one society to the next
There are internationally accepted morals and principles, such as basic human rights, which are
ratified in most countries in the world.
However, varying morals regarding controversial issues such as homosexuality, abortion,
euthanasia and suicide can cause friction in terms of enactment of law.
So the question then becomes, should law determine what is moral? Generally the state is
bound to formulate such laws that would elevate the moral standard of the people. The laws of
the state thus have to conform with the prevailing standard of morality of the people in that
particular society.
The prevailing geopolitical conditions, most friction that arises between one country and
another would be the issue of imposing various categories of laws to govern morality in other
countries where those laws wouldn’t be applicable because of prevailing moral standards.
The effect of this becomes evident in the contradictory nature of laws in a country which seeks
to influence its own moral standards by employing foreign laws.
For example, if one looks at various legal regimes in Kenya, be it concerning land, family matters
and even the supreme law of the land one can be able to identify these contradictions.
The statutory regime that governs marriage in Kenya is based on the moral standing and
religious belief of the former colonial masters, which frowns upon moral issues accepted in
African culture such as the payment of bride price and polygamy.
The effect of this then becomes the enactment of various regimes (4 in total) that seeks to
accommodate all these moral views.

THE WOLFEDEN REPORT AND THE HART DEVLIN DEBATE

The problem of morality and the law emerged in Britain in acute form in the era following the
Second World War.
There was an upsurge of concern, prompted by highly-publicized criminal trials of homosexual
offenders and the appearance and sale of literature of asexually-explicit nature.
It was suggested in some quarters that the restraints imposed by the law in the name of
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morality were no longer effective and that the disintegration of the social fabric was not far off.
Public concern hastened the appointment of a Royal Commission to investigate patterns of
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Unhappily for subsequent debate and jurisprudential enquiry, the phrase ‘morality and the law’
seems to have been narrowed down to ‘sexual morality and the criminal law’.
The Report of the Committee on Homosexual Offences and Prostitution (known as ‘the
Wolfenden Report’) appeared in 1957, and recommended changes in the law; some of the
recommendations became the basis of the Sexual Offences Act 1967, decriminalizing certain
homosexual practices in specified circumstances.
Intense debate followed, producing points of view which tended to polarise around the
arguments stated by Professor HLA Hart (1907–1992), and Sir Patrick (later Lord) Devlin (1905–
1992), a former Lord Justice of Appeal and Lord of Appeal in Ordinary.

PHILOSPHY OF THE WOLFEDENS REPORT

The ‘philosophy’ of the Wolfenden Report was based upon the following theses:
a) The function of the criminal law (in relation to the subject area of the
enquiry) was ‘to preserve public order and decency, to protect the
citizen from what is offensive or injurious, and to provide sufficient
safeguards against exploitation and corruption of others…’
b) ‘Unless a deliberate attempt is to be made by society, acting through
the agency of the law, to equate the sphere of crime with that of sin,
there must remain a realm of private morality and immorality which is,
in brief and crude terms, not the law’s business.’

HART-DEVLIN DEBATE

1. DEVLIN REJECTION AND HARTS REACTION TO THE WOLFEDEN PHILOSPHY

Devlin, who had shown himself to be in favour of easing the penalties for some homosexual
crimes, rejected the basic philosophy of the Wolfenden Report.
‘The criminal law of England has from the very first concerned itself with moral principles.’ ‘The
smooth functioning of society and the preservation of order require that a number of activities
should be regulated.’ (See Knuller Publishing v DPP (1973).).
Hart, who in subsequent debate tended to focus on the individual, rather than on society,
rejected Devlin’s approach and argued that it is not morally permissible to enforce the tenets of
morality.
He drew particular attention to the fallacies which he detected in Devlin’s argument that those
who deviate from conventional sexual morality might be in other ways hostile to society.

2. DEVLIN QUESTIONS AND INTERROGATORIES

Devlin states that, hitherto, the criminal law has been based upon certain standards of
behaviour or moral principles which society requires to be observed, and that their breach is an
offence not merely against the person who is injured, but against society as a whole.
He poses three questions: The answers given by Devlin to his own interrogatories constitute the
essence of his stance against the philosophy of the Wolfenden Report.
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a) First question ‘Has society the right to pass judgment at all on matters of morals? Ought there,
in other words, to be a public morality, or are morals always a matter for private judgment?’
The answer to the first interrogatory must be a resounding ‘Yes’. Wolfenden takes for granted
the existence of a public morality (which condemns, inter alia, homosexuality and prostitution).
Each member of a community has ideas about good and evil; these ideas cannot be kept private
from the society in which he or she lives.
If persons attempt to create a society in which there is no fundamental agreement about good
and evil, they will fail.
Society is held together ‘by the invisible bonds of common thought’.
If the bonds of common thought are too far relaxed, members of the community will drift apart.
A common morality is part of the bondage. That bondage is ‘a part of the price of society’.
Mankind needs society and it must pay its price

b) Second question ‘If society has the right to pass judgment, has it also the right to use the
weapon of the law to enforce it?’

The answer to the second question is also ‘Yes’.

Society may use the law to preserve morality ‘in the same way as it uses it to safeguard anything
else that is essential to its existence’.
It is not possible to set theoretical limits to the State’s power to legislate against immorality.
Society has the right to use its laws to protect itself from internal or external dangers, as
evidenced by the law of treason, for example. (See Jones v Randall (1744).)
An established morality is as necessary to the welfare of society as is good government.
If no common morality is observed, society will disintegrate; indeed, the loosening of moral
bonds is a prelude to such disintegration.
Society is justified in taking steps to preserve its moral code, and there can be no theoretical
limits to this process.

Third question If so, ought it to use that weapon in all cases or only in some; and if only in
some, on what principles should it distinguish?’

In answer to the third interrogatory, it is necessary to discuss how society’s moral judgments
ought to be ascertained.
Reference should be made to the judgment of ‘the right minded man’ (not necessarily ‘the
reasonable man’); he can be thought of, perhaps, as ‘the man in the jury box’.
Let immorality be considered as what every ‘right-minded man’ considers to be immoral.
But certain ‘elastic principles’ must be kept in mind by a legislature anxious to protect morality
and the State.
1. First: there should be ‘toleration of the maximum individual freedom that is consistent with the
integrity of society’.
2. Second: punishment should be reserved for that which lies beyond the limits of tolerance. These
limits will be reached when an activity creates disgust among ‘right-minded persons’. ‘No society
can do without intolerance, indignation and disgust; they are the forces behind the moral law.
‘Further, society cannot be denied the right to eradicate ‘a vice so abominable that its mere
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presence is an offence’. (It has to be stressed, however, that the limits of tolerance will change
from one generation to another.)
3. Third: the need to enforce the law must be balanced against respect for privacy.
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4. Fourth: the law should be concerned with minima, not maxima, so that society’s standards
ought to be set above those of the law.

3. HART RESPONSES

The reaction to Devlin’s arguments was mixed: he was supported by those who thought that
Wolfenden had moved beyond tolerable limits; he was opposed by those who considered that
he was out of tune with the times, had forgotten Mill’s ‘harm-to-others’ principle, and was
providing jurisprudential justification for a firm-handed paternalism. Hart led the opposition to
Devlin’s stance.

a) Unsound Basis of Devlin’s Axioms

The basis of Devlin’s axioms was unsound, argued Hart. ‘Legal moralism’—the justification for
attempts to prevent conduct which is perceived as immoral even though no person is harmed—
had to be questioned.
In particular, Devlin’s stress on ‘intolerance, indignation and disgust’ as marking the boundaries
for tolerance, was difficult to accept.
The popular limits of tolerance shift to a greater extent than Devlin seemed prepared to accept;
‘social morality’ is rarely static for long periods of time.

b) No Seamless Web of Morality

Devlin’s concept of morality as a single ‘seamless web’ which will be torn beyond repair unless
communal vetoes on behaviour are enforced by law, is, according to Hart, an unacceptable
viewpoint. Single breaches of morality do not necessarily affect the integrity of society in its
entirety.

c) Sexual Morality and Subversive Activities

Devlin’s comparison of the suppression of subversive activity and the suppression of sexual
immorality was used by Hart to illustrate the inadequacy of that approach to the problem.
It is grotesque, says Hart, to think of the homosexual behavior of two adults in private as
resembling in any way whatsoever treason or sedition either in intention or effect.
Behavior of this nature might be considered alongside treason only if the very wide assumption
is made that a deviation from a general moral code will lead to its utter destruction.
There is little plausibility in the suggestion that an offence against one item of morality is likely
to jeopardize a community’s total state of morality.
There is evidence, says Hart, for believing that members of a community ‘will not think any
better of murder, cruelty and dishonesty’ simply because private sexual practices, which may be
abominated by most in the community, are not within the ambit of the criminal law.
The analogy with treason is absurd. Common sense and logic tell us that ‘though there could not
logically be a sphere of private treason, there is a sphere of private morality and immorality’.

d) Punishment For Sexual Misdemeanor

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Hart argues that the legal punishment which followed on sexual misdemeanor could, and often
did, result in disproportionate personal misery. (It is not always easy in our day to comprehend
the severity of the condemnation which was reserved by the courts and many organs of public
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This ought not to be forgotten. Blackmail and other evil consequences of a finding of guilt may
often outweigh any harm said to have been caused directly by homosexual offences.

e) What is General Morality

Hart warns legislators against the implications of Devlin’s arguments.

Devlin puts forward as the criterion for the ‘immorality’ of a deviant sexual practice, the disgust
it will produce in the mind of ‘the right-thinking man’.
But, says Hart, legislators must pause and ask what is the precise nature of the so-called ‘general
morality ‘which the ‘right-thinking man’ is held to embrace.
Is it, in reality, a rational reaction to behavior which is disliked, or is it based on sheer ignorance,
superstition or mis-understanding?
Does that morality foster the falsehood that those who deviate from the moral code are
dangerous to society in some other way?
Does ‘the right thinking man’ understand the intensity of the misery which can follow on a
conviction for sexual misdemeanor?

f) Dangers of Populism

Hart is warning against the dangers which can result from the ‘populism ‘which Devlin appears
to advocate.
There is a special risk in a democracy, argues Hart, ‘that the majority may dictate how all should
live’. This is a risk we should gladly run since it is a price for the many good features of
democratic rule; but we ought not to maximise the risk.
Yet this is exactly what will occur if we tell the man on top of the Clapham omnibus ‘that if only
he feels sick enough about what other people do in private to demand its suppression by law, no
theoretical criticism can be made of his demand’.

MANIFESTATION OF ISSUES OF LAW AND MORALITY

1. Criminalization of some sexual acts
2. Same sex marriage’
3. Sex Change and Intersex
4. Euthanasia
5. Legalization of Abortion

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2. DUTIES,RIGHTS AND OBLIGATIONS (HOHFELD ON RIGHTS AND DUTIES)

INTRODUCTION

Law consists of certain types of rules regulating human conduct. The administration of justice is
concerned with enforcing the rights and duties crated by such rules.

DUTIES/OBLIGATIONS

Duties or obligations are acts which one ought to do, an act the opposite of which would be
wrong. The duty and the act however are not strictly identical. Also, not all acts which one ought
to do constitute duties. Duties are those which one owes to others by virtue of his position or
station e.g. a servant to his master. Duties consist of positive acts and not negative acts, for
instance; duty to do something and not duty to fail to do something.
There may be other things which a man ought to do but which fit into neither of these
categories, for example; many dictate of common morality like; one should not kill or steal.
Duties or obligations can be either moral or legal. When the law recognizes an act as a duty, it
commonly enforces the performance of it or punishes the disregard of it. Moral duties are those
guided by common morality while legal duties are those guided by law.

RIGHTS

In strict sense a duty is something owed by one person to another, correspondingly, the latter
has a right against the former.
To say that a man has a right to something is roughly to say that it is right for him to obtain it.
This may entail that others ought to provide him with it or that they ought not to prevent him
from getting it. Rights are concerned with rights and indeed have been defined as interests
protected rules of right i.e. by legal or moral rules.
Rights protect the interests of someone which accordingly form the subject of his rights but are
different from them.
Rights like duties/obligations or wrongs are either moral or legal. A moral or natural right is an
interest recognized and protected by rule of morality, an interest the violation of which would
be a moral wrong and respect for which is a moral duty. A legal right on the other hand is an
interest recognized and protected by rule of law, an interest the violation of which would be a
legal wrong done to him whose interest it is, and respect to which is a legal duty.
In order for an interest to become the subject of a legal right, it must obtain not merely a legal
protection but also a legal recognition.

CHARACTERISTICS OF LEGAL A RIGHT

a) Is vested on a person who may be distinguished as the owner of right/ the subject of it/ person
entitled to it/ inheritor of the right.
b) Avails against a person upon who lies the correlative duty
c) Obliges the person bound to an act or mission in favor of the person entitled
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d) Act or omission relates to object or subject matter of the rights

e) Every legal right has a title
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HOHFELD’S ANALYSIS OF RIGHTS AND OBLIGATIONS

Introduction

Wesley Newcombe Hohfeld was an American jurist belonging to the analytical school of
jurisprudence.
He came up with this analysis while lecturing his students in an attempt to break down legal
notions to them. He sought to reduce all legal quantities to their lowest denominators in terms
of legal relations in order to facilitate the resolution of practical problems in judicial reasoning.
Hohfeld started by distinguishing factual from legal relations; this conflation of fact and law
continues unabated to the present. A piece of paper is described as a contract, a collision in a
road as a tort, a house is described as the subject matter of property.
Things, people, and the actions people perform are physical phenomena. The reasons people
offer for their actions are psychical phenomena.
Law is concerned with events, but law is not the same as those events. A contract is the set of
legal consequences that flow from the existence of an enforceable agreement; a tort is present
if the law imposes damages in the circumstances in which a collision took place; one does not
own a house which is a physical thing rather one has various rights what he called legal relations
i.e. claims, privileges, liberties, immunities in relation to the estate- a legal thing that relates a
metaphysical conception to the place which is a physical thing the house occupied.

CONCEPT OF RIGHTS AND OBLIGATIONS THROUGH HOHFELD’S LOOKING GLASS

Hohfeld’s analysis was based on 3 assumptions:

1. Existence of Legal Relations:

He assumed that it makes sense to speak of a person having a claim over another person
who has a duty to comply and assumed that duty and claim are meaningful words which
describe something in the real world.

2. Legal Relations Have Generic Qualities:

He believed that these legal relations share common features with others e.g. that claims
have similar characteristics with other claims therefore capable of being classified together.

3. Atomic Structure of Legal Relations:

He assumed that the structure of legal relations is atomic rather than organic or emergent
therefore capable of being broken down into small components and put back together
again.
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Hohfeld’s Concept of Jural Relations:

Based on these assumptions he developed the concept of jural relations.

Jural Relations

Jural relations can be described as our relations to our fellow men in instances where the
rule of law is applied. Legal or jural relations are only existent in organized society where
law is applied. It is the society, through its agents, after considering what is of supreme
interest, decides how person A and B relate. The society either aids A against B or vice
versa.
Hohfeld chose eight terms that express fundamental concept already existent in law to
further explain the legal or relations. The terms being: rights, duties, privilege, immunity,
disability, power, liability and no-right. The concepts are considered fundamental because
they are constant elements that cut across legal concepts for example: property, equity,
tort and contract among others. These fundamental terms enable one to understand the
similarities as well as differences where they could originally be difficult to point out.
Jural relations have been categorized into two;
i. First order jural relations and
ii. Second order jural relations
First order relations may be described as those revolving around the concept of permission and
second order relations being those that define conditions under which actions can be
considered legally significant.

First order jural relations

Rights and duties

The term right has been considered broad and non-specific as it can be taken to mean: privilege,
immunity, power and generally describing whatever can be legally claimed. For purposes of this
discussion the term right is taken to mean that there is existence of a correlative duty. John
Austin stated that every right rests on a relative duty.
A duty or a legal obligation may be described as what one ought or ought not to do (Lake Shore
and another v. Kurtz).
With the above in mind, rights and duties can then be considered as correlatives. The holder of a
right is protected with the backing of state if necessary against interference or
uncooperativeness of one or more people and anyone against whom the right obtains is under a
duty to comply with its terms be it through non interference or assistance.

Privileges and no-rights

The term privilege denotes either freedom or favor. When one is privileged, generally, they are
free from constrain. Therefore, they are free from duty. Where person A has a right over their
property B has a duty to stay out of the said property. Person A has a privilege and therefore
person B has no right to enter the property. Privilege to enter the property is a negation of a
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duty to stay out of the property. Privilege and no right are therefore correlatives while privilege
and duty are opposites. The holder of a privilege is free of any duty to anyone with regard to the
act or omission or state affairs covered by the privilege, thus everyone against whom the
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privilege is held has no right to limit the privilege holder’s freedom in the area covered by the

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privilege. A privilege is not a right but can be surrounded by rights to protect one’s ability to
exercise that privilege. For example: being a Kenyan one has the privilege to live and work in
Kenya but foreigners are obligated to stay out of Kenya unless authorized to enter Kenya. The
privilege comes with the right to own land in any part of the country and move freely within,
which enforces the privilege of citizenship.

Second order jural relations

Powers and liabilities

Power means having legal ability to do an act. It is the ability to change some legal
positions/relations. Legal power is the opposite of legal disability. The holder of a power can
deprive the other party of their entitlements to something. The power holder has the monopoly
over others.

Immunities and disabilities

In Hohfeld’s system the term immunity is used to describe any legal situation in which a given
legal relation vested in one person cannot be affected by the acts of another person. Where one
has immunity they are not subject to a power holder. They are exempt from imposition by the
power holder. The immunity holder is however disabled from changing the immunity status.
Most entitlements conferred by bills of rights are immunities and must accompany other
entitlements to prevent them from being meaninglessly hollow.
These jural relations were often presented in the following manner to aid in understanding their
relationship:

A:
Right Duty

Jural Opposites

Liberty No Right

Jural Correlatives

B:

Power Liability

Jural Opposites

Immunity Disability

Jural Correlatives
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An Explanation:

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Jural correlatives are mutually inclusive while jural opposites are mutually exclusive.
Therefore Hohfeld believed that for every right that existed, someone somewhere had a duty to
enforce that right and where there was a liberty there was no right and likewise in the case of
power also referred to as privilege where there was a corresponding liability and for immunity
there is a corresponding disability.
Another way of putting is a liability is the absence of immunity and a disability the absence of a
power and likewise no-right is the absence of a right and a duty the absence of a privilege.
Rights are logically parallel to immunities and privileges logically parallel to powers.

RELEVANCE OF HOHFELD’S CONEPT OF RIGHTS AND OBLIGATION

Hohfeld’s concept of rights and obligations is relevant because:

1. It creates a link between fundamental legal concepts for example property and law. Property
rights are well enunciated when explained in Hohfeld’s view. For example: where person A owns
a piece of land he or she has right over that land and the greater community has a duty to stay
out of that piece of land. Person A therefore also has power to grant entry to his or her
property.
2. His analysis created the ability to break down a complex legal situation into its constituent legal
parts which has been the greatest attempt to explain the fundamentals of common legal
relations.
3. His analysis has provided a vocabulary adequate to the description of common law legal
relations.
4. Hohfeld’s concept of rights and obligations gives a different angle to jurisprudence. He does not
give meaning of law but rather explains relations between people within the law. Hohfeld takes
it upon himself to explain analytically how parties relate within the bounds of the law.

5. It made conspicuous the uniqueness (singleness) of jural relations as existing only between two
persons, and never more than two persons. The confusion which existed on this point was
disastrous in cases of rights in personam involving correal or solidary obligations.
6. It gave to the concept ‘liability’ a new and useful extension, which includes advantage as well as
detriment

Critique of Hohfeld’s analysis

1. Hohfeld purports to analyze fundamental legal concepts but has no concept of law, nor does he
attempt to define what it is that gives his conceptions their legal character.
2. There is no adequate explication/ no clear explanation of what legal relations are. There is no
discussion of the role that legal concepts play. Hohfeld seems to assume that the word right
denotes some entity.
3. Some of the claims are not really practicable or sustainable for example is it really true that all
rights that exist have someone upon whom the duty lies to enforce? If so then are these people
tasked with this duty actually performing their duty and how is possible to verify this?
4. Most examples by Hohfeld are derived from private law which may account for the inadequate
treatment he gives to the concept of duty. It is correct to say that every right implies the
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existence of a correlative duty but not every duty implies a correlative right.
5. Inadequate explanation of other concepts e.g. power is described in terms of control but control
itself is not further explicated or discussed and also right is described as a claim but claiming has
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not been clearly explained.

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6. Hohfeld, who proposed a system of fundamental legal conceptions and disavowed a need to
attend to normative legal theory;' and on the other hand, Dworkin, Nozick and Rawls, who each
approach rights from the perspective of general moral and political theory but give insignificant,
inadequate, and/ or inaccurate reference to structural analysis.
7. Andrew Haplin in his critique of Hohfeld’s analysis argued that legal theory and legal rights can
be advanced only by identifying the necessary interconnections between the analytic structure
of rights and the normative content of legal theory. He therefore felt that Hohfeld’s analysis was
incomplete as it did not go ahead to integrate any legal theory into the analysis.
8. While this analysis was proposed to help solve complex legal problems by breaking down the
law into its component parts, the full analysis of any legal situation using this method is tedious
and laborious and often lends itself to further elaborations.

THEORIES OF RIGHTS

There are 2 main theories of rights:

1. The Will Theory

2. The Interest Theory

The Will Theory

The main proponent of this theory was Professor Hart who holds that when I have a right to do
something, what is essentially protected is my choice whether or not to do it. This approach
viewed freedom and individual self fulfillment as the essential values which should be
guaranteed by the law. It is based on the assumption of correlativity of rights and duties.
Has three stages at which powers of waiver or enforcement are held by a right holder:

1. Before violation of the duty

2. In the aftermath of a violation of a duty

3. In the aftermath of successful legal proceedings against the violator

Critics of this theory argue that the law sometimes limits people’s power/freedom without
necessary infringing on my right e.g. we are not free to murder or steal, this curbs our ‘freedom’
so to speak but does not in any way violate any substantive rights we have. Thus it is flawed to
believe that because of our rights we have the power to waive someone else’s duty.
The second criticism is that not all right holders have the choice or ability to exercise or enforce
their right e.g. children have rights but are unable to enforce them, their parents exercise their
rights for them and it would certainly be absurd to conclude that since they can’t exercise their
right then they have no rights. Other people who then have no rights are lunatics, senile people,
comatose people, future generations, animals.
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The Interest Theory

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The main proponent of this theory was MacCormick who claimed that the purpose of rights is
not to protect individual choice but to protect certain interests of the right holder. He also
accepted the correlativity of rights and duties.
They therefore argued that conferring a right on someone was an acceptance that the interest
protected by that right should be recognized and protected.2 This conception of interests is
broad enough to allow the attribution of interests to many inanimate entities as well as plants
and animals, thus it is possible here for children, lunatics, comatose, future generations to have
rights. Thus it is possible to have legal norms that shield foetuses against abortion and
experimentation have endowed foetuses with legal rights. However the separation in the law on
foetuses which leaves them largely or wholly devoid of legal protection against abortion and
experimentation in the early stages of development raises dome questions as to the uniformity
of the application of these rights. Do they not have interests then? This raises the question as to
if various beings are potential holders of legal rights is separate from the question of whether
any or all of those beings should be legally protected and which factors are used to distinguish
which ones to be protected.
Another question that has been raised regarding the interest theory is that rights come with
responsibilities, so in the case of inanimate things and future generations e.t.c. having rights,
what are their responsibilities?

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2
Ibid p.273

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