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Contents
INTRODUCTION 3
THEORIES OF LAW 3
NATURAL LAW THEORY 3
Features of natural law 3
Justinian 3
Aquinas 3
Cicero 4
Finnis 4
Hobbes 4
Importance of natural law 4
Criticisms 4
POSITIVE LAW THEORY 4
John Austin 5
Bentham 5
MARXIST LAW THEORY 5
Features of the Marxist law theory 5
Antonio Gramsci 6
Pashukanis 6
Criticism 6
HISTORICAL AND ANTHROPOLOGICAL LAW THEORY 7
Von Savigny 7
Disagreements 7
SOCIOLOGICAL SCHOOL OF LAW 7
Jhering 7
Roscoe Pound 8
Max Webber 8
Durkheim 8
Ehrlich 8
UTILITARIANISM 9
Jeremy Bentham 9
LEGAL REALISM 9
Justice Holmes 9
Karl Llewellyn 9
Criticisms 10
FEMINIST JURISPRUDENCE 10
Liberal Feminism 10
Cultural Feminism 10
Radical Feminism 10
Postmodern feminism 10
Christine Littleton 10
CRITICAL RACE THEORY 11
CONCLUSION 11
BIBLIOGRAPHY 11
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INTRODUCTION
A school of thought on law is termed as jurisprudence. It is also the science or philosophy of law as it seeks to make one understand what it is in addition to why, how and for what purpose law exists.
WHAT IS LAW?
Evolution of law and the society
Man’s life in society has been marked by a movement from small, primitive kinship groups toward larger governmental units. This has raised the question: Where does the state derive its authority? And why is law respected and observed?
Greek thought that has been the basis of western ideas about government and law draws upon a link between the universe, man and the law. In the search for a law that was higher than positive law, philosophers developed the theory of natural law. Natural law, they believed, embodied those elementary principles of justice which were right reason, i.e. in accordance with nature, unalterable and eternal. A classic example is that of Antigone who defied Creon’s command not to bury her slain brother claiming that she was obeying immutable laws higher than the ruler’s command. The cosmic order, emanating from the mind of God, according to Thomas Aquinas in Summa Theologica, to some extent is perceptible to man’s rational faculties and Natural law provides a universal standard for the formulation and administration of human law.
With the dawn of the age of enlightenment, secular theories of natural law arose detached from religion. According to Grotius, a natural characteristic of human beings is the social impulse to live peacefully and in harmony with others. Whatever conformed to the nature of men and women as rational, social beings was right and just; whatever opposed it by disturbing the social harmony was wrong and unjust. Grotius defined natural law as a ‘dictate of right reason’. John Locke in The Second Treatise of Government imagined the existence of human beings in a state of nature. In that state men and women were in a state of freedom, able to determine their actions, and also in a state of equality in the sense that no one was subjected to the will or authority of another. However, to end the hazards and inconveniences of the state of nature, men and women entered into a ‘social contract’ by which they mutually agreed to form a community and set up a body politic- this is what is referred to as the constituent power of the people. Of the constituent power, Justice Ringera stated as follows in Njoya & 6 Others V Attorney-General and 3 Others, Misc. Civil Application No. 82 of 2004 “With respect to the juridical status of the concept of the constituent power of the people, the point of departure must be an acknowledgment that in a democracy, and Kenya is one, the people are sovereign. The sovereignty of its people. The Republic is its people, not its mountains, rivers, plains, its flora and fauna or other things and resources within its territory. All Government power and authority is exercised on behalf of the people. The second stop in the recognition that the sovereignty of the people necessarily betokens that they have a constituent power – the power to constitute and/or reconstitute, as the case may be, their framework of government. That power is a primordial one. It is the basis of the creation of the Constitution and it cannot therefore be conferred or granted by the Constitution. Indeed it is not expressly textualized by the Constitution and, of course, it need not be. If the makers of the Constitution were to expressly recognize the sovereignty of the people and their constituent power, they would do so only ex abundant cautela (out of an excessiveness of caution). See also Richard Stacey “Constituent Power and Carl Schmitt’s Theory of Constitution in Kenya’s Constitution-Making Process”, (2011) 9 Int’l J Const L 587
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Still, in setting up that political authority, individuals retained the natural rights of life, liberty and property. Government was obliged to protect the natural rights of its subjects and if government neglected this obligation, it forfeited its validity and office. Locke’s theory of inalienable sovereignty was further developed by Jean-Jacques Rousseau in The Social Contract. Rousseau states thus: “If then, we eliminate from the social pact everything that is not essential to it, we find it comes down to this – Each one of us puts into community, his person and all his powers under the supreme direction of the general rule, and as a body, we incorporate every member as an indivisibble part of the whole.
Immediately, in place of the individual person of each contracting party, this act of association creates an artificial and collective body composed of as many members as there are voters in the assembly, and by this same act that body acquires its unity, its common ego, its life and its will. The public person thus formed by the will of all other persons was once called the “city” and area composed of citizens), and is now known as the republic or the body politic. In its passive name is called the state, when it plays an active role it is the sovereign; and when it is compared to others of its own kind, it is a power. Those who are associated in it take collectively the name of a people, and call themselves individually citizens, in so far as they put themselves under the laws of the state……”
In this idea of the social contract sovereignty resided or rested with the governed and not the governor.
Natural law theory is the philosophical impetus for the wave of revolt against absolutism. Its influence is visible in many constitutions and international human rights documents. For example, The preamble to the Kenyan Constitution provides thus: “We, the people of Kenya.. exercising our sovereign and inalienable right to determine the form of governance of our country and having participated fully in the making of this Constitution..adopt, enact and give this Constitution to ourselves and to our future generations.”
It affords an appeal on curbing of exercise of naked power by a higher authority. The critical problem with the natural law theory is how to determine norms that are to be considered as part of the law of nature and therefore inalienable. Under Locke’s view of human beings in the state of nature, all that was needed was the opportunity to be self-dependent; life, liberty and property were the inherent interests that met this demand. In a world unlike the times of Locke, the question becomes whether natural law has the potential for flexibility to satisfy new claims based on contemporary conditions and modern human understanding.
Judicial endorsement of the Lockean and Rousseauan social contract to conception of law and society are myriad.
In Christopher Ndarathi Murungaru v Standard Limited ; 2 others, CIVIL NO. 513 OF 2011 2012 eKLR Justice Odunga stated in a relevant passage thus:
“Democratic societies uphold and protect fundamental human rights and freedoms, essentially on principles that they are in line with Rousseau’s version of the Social Contract theory. In brief the theory is to the effect that the pre-social humans agreed to surrender their respective individual freedom of action, in order to secure mutual protection, and that consequently, the raison d’etre of the State is to facilitate and enhance the individual’s self-fulfilment and advancement, recognising the individual’s rights and freedoms as inherent in humanity. Protection of the fundamental human rights therefore is a primary objective of every democratic Constitution, and as such is an essential characteristic of democracy. In particular, protection of the right to freedom of expression is of great significance to democracy. It is the bedrock of democratic governance. Meaningful participation of the governed in their governance, which is the hallmark of democracy, is only assured through optimal exercise of the freedom of expression. This is as true in the new democracies as it is in the old ones.”
In Dennis Mogambi Mong’are v Attorney General & 3 others, CIVIL APPEAL NO. 123 OF 2012 2014 eKLR Justice Otieno-Odek thus stated:
“121. In addition to the Kelsenian concept of grundnorm, the natural law and utilitarian theories if applied to the vetting process would find the process legitimate and constitutional. John Locke and Jean Jacques Rosseau observed that law is a social contract. (See John Locke, 1632 -1704 The Second Treatise of Government; see also Of The Social Contract, Or Principles of Political Right (Du contrat social ou Principes du droit politique) (1762) by Jean -Jacques Rousseau). The 2010 Constitution being the supreme law is the “social contract” between the three arms of government and the citizens and it embodies the wishes and aspirations of the people of Kenya. It is my considered view that in this social contract, the serving Judges and magistrates are required to be vetted to determine their individual suitability to continue to serve in office. The people of Kenya freely concluded the new social contract in the 2010 Constitution and Section 23 of the Sixth Schedule is part of that contract and must be obeyed and enforced.
122. The vetting process and the Vetting Act is also philosophically justifiable as the “general will” as per the views propounded by Jean-Jacques Rousseau (See of the Social Contract, Or Principles of Political Right (Du contrat social ou Principes du droit politique) (1762) by Jean- Jacques Rousseau). According to Rosseau the ‘general will’ (la volonté générale) is, by natural law, the sole and unfettered legal authority in the State. The “general will”is the “will” of the people taken together as a whole, constituting an entity. The 2010 Constitution reflects the general will of the people of Kenya and any individual Judge or magistrate can only continue to hold office and serve subject to the terms and conditions as laid out in the general will. The Constitution is an amalgam of the interests of the people of Kenya; their aggregated will constitutes the only legitimate basis of the sovereignty and the goals or value content in Kenya. A Judge is a Judge only by delegation of the ‘general will’ and could be removed whenever rejected by the ‘general will’. Rousseau’s doctrine implies that the people are the real adjudicators of disputes and they can remove at their discretion any judge presiding over them. This doctrine is in line with the Article 159 (1) of the Constitution which stipulates that the judicial power is derived from the people of Kenya, the supremacy of the General Will. As John Austin stated, law is the command of the sovereign and the people of Kenya are the sovereign. (See John Austin: The Province of Jurisprudence Determined (1832) John Austin (1790-1859). I find that the vetting process and the Vetting Act represent the supreme general will of the people of Kenya and it is constitutional.”
For similar views see CHRISTOPHER NDARATHI MURUNGARU v KENYA ANTI-CORRUPTION COMMISSION & another, Misc Civ Appli 54 of 2006 2006 eKLR
The Social Contract theory has also been used to justify why the state and society should punish individuals or deny them some entitlements when they are perceived to be a threat to the state and society established pursuant to the social contract.
In PRISCILLA NYOKABI KANYUA v ATTORNEY GENERAL & ANOTHER Constitutional Petition 1 of 2010, 2010 eKLR the INTERIM CONSTITUTIONAL DISPUTE RESOLUTION COURT stated thus:
“At the level of political theory there are two justifications for criminal disenfranchisement. The Lockean social contract theory and the Republican citizenship theory. The Lockean theory asserts that criminals have broken the “Social Contract” and should consequently lose the right to participate in the political process. The first objective of denying the inmates the right to vote is enhancing civic responsibility and respect for the law. The social rejection of serious crime reflects a moral line which safeguards the social contract and rule of law and bolsters the importance of nexus between the individual and the community. Republican citizenship theory argues that criminals are less virtuous than other citizens and should therefore be deprived of the right to vote in order to maintain “purity of the ballot box”. In addition it is argued that the disenfranchisement of serious criminal offenders serves to deliver a message to both the community and offenders themselves that serious criminal activity will not be tolerated by the community. The social rejection of serious crime reflects a moral line which safeguards the social contract and rule of law and bolsters the importance of the nexus between individuals and the community.”
In REPUBLIC v FRANCIS KARIKO KIMANI, CRIMINAL CASE NO. 100 OF 2010 2010 eKLR in addressing the issue of right to bail, Justice Emukule alluded to the social contract thus:
“Further, an accused person being a member of society has breached his social contract by committing the serious offence. Society demands that while he is under suspicion, he must be kept aside until that suspicion is removed.”
In contrast to Locke, Thomas Hobbes in The Leviathan has argued that the pre-governmental condition of man, was a war of all against all and in which the life of man was ‘solitary, poor, nasty, brutish and short’. Hobbes attributed the institution of civil government to a compact granting unlimited authority to the sovereign. To Hobbes, the meaning and content of justice were determined by the sovereign’s enactments of positive law. The reason therefore for men to accept the authority of law was the contemplation of their far worse condition in the absence of civil government. To Hobbes sovereignty lay with the sovereign who was not a party to the social pact and even if men repudiated it they could not remove him as between him and them there existed no pact. He believed in monarchical absolutism. John Austin then built on this postulation by Hobbes by defining law as a command of the sovereign backed by the threat of sanctions to assure compliance. Austin expressed his disbelief in the existence of a law of nature and emphasised the principle of utility as the basis for law.
The difference between Hobbes and Locke is that, Locke believed in the governed as the basis of sovereignty, while Hobbes believed in sovereignty, independent of the governed. To Locke under the social contract, power was surrendered not to the sovereign but to the community. Locke thus envisaged the state as the protector of an individual.
REFLECTIONS:
1. In the so called “Khobe-Okubasu-Oduor” debate published in the Journal of Law and Ethics (2014) Volume 1; Okubasu Duncan Munabi argues that: “There can be no rights in a stateless society-perhaps what can exist are some out –and-out, unrefined and anarchic liberties exercised at the whim of the strong members of such order. Political thoughts of Hobbes indeed portray wretchedness in the absence of a state. What is portrayed is a struggle for survival in the absence of a state, a thought that Locke affirms albeit differently, while essentialising the responsibility of the state to ensure preservation of life, liberty and property (and associated rights). The movement from the state of solitude to a civil society, in Hobbesian depiction, which signified a change of the approach to self-preservation, can be described as indefeasible elucidation of the centrality of the state in the rights discourse. What Khobe appears to be overlooking is this certainty that without the state there can be no recognition, promotion, protection and respect for rights and that there can be no violations of obligations, vertical, horizontal or diagonal!”. Critique the cogency of these assertions
2. In KAPI LTD & another v PYRETHRUM BOARD OF KENYA, Petition 54 of 2012 2013 eKLR counsel raised a preliminary objection on the fact that the petitioner was a foreignor thus could not claim any rights under the constitution of Kenya. He pointed out that Kenya is not involved in this dispute. Counsel went ahead to submit that the new Constitution establishes a social contract between the State and its citizens and that the only parties who can litigate within the Constitution to enforce their rights are the Kenyan citizens which the 2nd petitioner is not, because he described himself as a citizen of the United Kingdom and is not a party of the social contract between Kenya and its citizens. What is your view on this point canvassed by counsel?
What is law?
In its common understanding, law is viewed in terms of rules: A rule prescribes what activity may, should or should not be carried out, or refers to activities which should be carried out in a specified way. Rules of law may forbid certain activity or they may impose certain conditions under which activity may be carried out. The law contains some rules which we might call ‘power conferring’: rules which enable certain activities to be carried out with some form of legal backing and protection.
Because a rule guides us in what we may, ought or ought not to do, it is said to be normative. We can grasp the meaning of this term if we contrast a normative statement, telling is what ought to happen, with a factual statement, which tells us what does happen. All rules, whether legal, moral or just customary, are normative, laying down standards of behaviour to which we ought to conform if the rule affects us.
However this does not equate law to a ‘system of rules’ because in any social group, there are various ‘systems of rules’ apart from law. For example, there are legal rules and moral rules; legal rules and rules of custom and etiquette. Clearly, there are differences between these types of rules, and perhaps the only feature which they all have in common is their formativeness.
The analysis of law and its distinctions from other rules is difficult to articulate. There are two major perspectives on legal analysis.
The first major approach is the theory of ‘legal positivism’- first made popular by the nineteenth century philosopher John Austin. This theory was later elaborated upon by H.L. A. Hart. Positivism has a few central and organising propositions. These key tenets may be stated as follows:
a) The law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behaviour will be punished or coerced by the public power. These special rules can be identified and distinguished by specific criteria, by tests having to do not with their content but with their pedigree or the manner in which they were developed or adopted. These tests of pedigree can be used to distinguish valid legal rules from spurious legal rules (rules which lawyers and litigants wrongly argue are legal rules) and also from other sorts of social rules (generally lumped together as ‘moral rules’) that the community follows but does not enforce through public power.
b) The set of these valid legal rules is exhaustive of the ‘law’, so that if someone’s case is not clearly covered by such a rule (because there is none that seems appropriate, or those that seem appropriate are vague, or for some other reason) then that case cannot be decided by ‘applying the law’.
c) To say that someone has a ‘legal obligation’ is to say that his case falls under a valid legal rule that requires him to do or to forbear from doing something. (To say he has a legal right, or has a legal power of some sort, or a legal privilege or immunity, it so assert, in a shorthand way, that others have actual or hypothetical legal obligations to act or not to act in certain ways touching him). In the absence of such a valid legal rule there is no obligation.
This is only the skeleton of positivism. The flesh is arranged differently by different positivists, and some even tinker with the bones. Different versions differ chiefly in their description of the fundamental test of pedigree a rule must meet to count as a rule of law.
John Austin, for example, in the book ‘The Province of Law Determined’ framed his version of the fundamental test as a series of interlocking definitions and distinctions. He defined having an obligation as lying under a rule, a rule as a general command, and a command as an expression of desire that others behave in a particular way, backed by the power and will to enforce that expression in the event of disobedience. He distinguished classes of rules (legal, moral, or religious) according to which person or group is the author of the general command the rule represents. In each political community, he thought, one will find a sovereign – a person or determinate group whom the rest obey habitually, but who is not in the habit of obeying anyone else. The legal rules of a community are the general commands its sovereign has deployed. Austin’s definition of legal obligation followed from this definition of law. One has a legal obligation, he thought, if one is among the addressees of some general order of the sovereign, and is in danger of suffering a sanction unless he obeys that order.
Austin’s model is quite beautiful in its simplicity. It asserts the first tenet of positivism, that the law is a set of rules specially selected to govern public order, and offers a simple factual test – what has the sovereign commanded?- as the sole criterion for identifying those special rules. In time, however, many objections were raised to Austin’s model, among which were two that seemed fundamental. First, Austin’s key assumption that in each community a determinate group or institution can be found, which is in ultimate control of all other groups, seemed not to hold in a complex society. Political control in a modern nation is pluralistic and shifting, a matter of more or less, of compromise or cooperation and alliance, so that it is often impossible to say that any group or any person has that dramatic control necessary to qualify as Austinian sovereign. One may argue, in Kenya for example, that the ‘people’ are sovereign. But this means almost nothing, and in itself provides no test for determining what the ‘people’ have commanded, or distinguishing their legal from their social or moral commands.
Second, critics point out the fact that Austin’s account for, even to recognise, certain striking facts about the attitudes we take toward ‘the law’. We make an important distinction between law and even the general orders of a gangster. We feel that the law’s strictures – and its sanctions- are different in that they are obligatory in a way that the outlaw’s commands are not. Austin’s analysis has no place for any such distinction, because it defines an obligation as subjection to the threat of force, and so founds the authority of the law entirely on the sovereign’s ability and will to harm those who disobey.
H.L.A. Hart’s version of positivism is more complex than Austin’s in two ways. First, he recognises, as Austin did not, that rules are of different logical kinds. (Hart distinguishes two kinds, which he calls ‘primary’ and ‘secondary’ rules). Second, he rejects Austin’s theory that a rule is a kind of command, and substitutes a more elaborate general analysis of what rules are.
Hart in the book ‘The Concept of Law’- develops an approach based on ‘system of rules’- makes a distinction between primary and secondary rules. Primary rules are those that grant rights or impose obligations upon members of the community. The rules of criminal law that forbid us to murder, rob or drive too fast are good examples of primary rules. Secondary rules are those that stipulate how, and by whom, such primary rules may be formed, recognised, modified or extinguished. The rules that stipulate how parliament is composed and how it enacts legislation are examples of secondary rules. Rules about forming contracts and executing wills are also secondary rules because they stipulate how very particular rules governing particular legal obligations (i.e. the terms of a contract or the provisions of a will) come into existence and are changed.
Hart’s general analysis of rules is of great importance. Austin has said that every rule is a general command, and that a person is obligated under a rule if he is liable to be hurt should he disobey it. Hart points out that this obliterates the distinction between obliged to do something and being obligated to do it. If one is bound by a rule he is obligated, not merely obliged, to what it provides, and therefore being bound by a rule must be different from being subject to an injury if one disobeys an order. A rule differs from an order, among other ways, by being normative, by setting a standard of behaviour that has a call on its subject beyond the threat that may enforce it. A rule can never be binding just because some person with physical power wants it to be so. He must have authority to issue the rule or it is no rule, and such authority can only come from another rule which is already binding on those to whom he speaks. That is the difference between a valid law and orders of a gunman.
So Hart offers a general theory of rules that does not make their authority depend upon the physical power of their authors. In Hart’s approach, there are two sources of a rule’s authority: because it is accepted or because it is valid.
a) A rule may be binding upon a group of people because that group through its practices accepts the rule as a standard for its conduct. It is not enough that the group simply conforms to a standard of behaviour. A practice constitutes the acceptance of a rule only when those who follow the practice regard the rule as binding, and recognise the rule as a reason or justification for their own behaviour and as a reason for criticizing the behaviour of others who do not obey it.
b) A rule may also become binding in a different way, namely by being enacted in conformity with some secondary rule that stipulates that rule so enacted shall be binding. A community often develops a fundamental secondary rule ‘rule of recognition’ that stipulates how legal rules are to be identified e.g. Constitution. The demonstration that a particular rule is valid may therefore require tracing a complicated chain of validity back from that particular rule ultimately to the fundamental rule. Of course the rule of recognition cannot itself be valid, because by hypothesis it is ultimate, and so cannot meet tests stipulated by a more fundamental rule.
In this way Hart rescues the fundamentals of positivism from Austin’s mistakes. Hart agrees with Austin that valid rules of law may be created through acts of officials and public officials. But Austin thought that the authority of these institutions of law only in their monopoly of power. Hart finds their authority in the background of constitutional standards against which they act, constitutional standards which have been accepted, in the form of a fundamental rule of recognition, by the community which they govern.
The second major approach is theory of ‘law as rule and principle’ developed by Ronald Dworkin in the books ‘Taking Rights Seriously’ and ‘Law’s Empire’. Dworkin’s theory is ‘interpretive’: the law is whatever follows from a constructive interpretation of the institutional history of the legal system. Dworkin argues that legal rights and obligations contain more than just rules as argued by positivists. He points out that apart from rules, law also contains standards that do not function as rules, but operate differently as principles, policies and other sort of standards. His argument is that positivism is a model of and for a system of rules, and its central notion of a single fundamental test for law misses the important roles of standards that are not rules. Dworkin argues that standards differ from rules in that whilst rules are applicable in an all-or-nothing manner, standards are guidelines, stating a reason that argues in one direction, but does not necessitate a particular decision.
Dworkin argues that the categories of standards that exclude rules that are law include the following:
‘Policy’ –; that kind of standard that sets out a goal to be reached, generally in an improvement in some economic, political or social feature of the community.
‘Principle’ –a standard that is to be observed, not because it will advance or secure an economic, political or social situation seemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.
Thus the standard that motor vehicle accidents are to be decreased is a policy, and the standard that no man may profit by his own wrong is a principle.
In distinguishing standards (principles) from general rules, Dworkin uses the illustration of the Case of Riggs v Palmer, 115 N.Y. 506, 22 N.E. 188 (1889). In this case, a man murders his father in order to benefit from the father’s will which, as he knows, provides that all the father’s property will come to him upon the father’s death. Irrespective of the liability of the man for murder, the question will fall to be considered whether he will ultimately acquire that property. Normally, the law attempts to give effect to the wishes of the maker of a will, but here the outcome may well be affected by the principle that ‘no man should profit by his own wrong’ and the result may well be that, through the operation of this principle, and despite the existence of legal rules which would otherwise have operated in the son’s favour, the murderer does not receive the inheritance.
In the Kenyan case of The Supreme Court Advisory Opinion on the Principle of Gender Representation in the National Assembly, Advisory Opinion Number 2 of 2012 through a majority decision, the Supreme court endorsed the Dworkinian distinction between principles and rules. The Supreme Court was asked to give an advisory opinion on whether the gender equity principle that not more than two thirds of one gender should occupy a state office provided in the Constitution i.e. under the general principles of the electoral system (Article 81 of the Constitution) and the equality clause in the Bill of Rights (Article 27 of the Constitution) was immediately realizable or subject to progressive realisation. The Majority (Chief Justice Mutunga dissenting) underscored the difference between constitutional principles (standards) and norms (rules) thus:
“54 Certain provisions of the Constitution of Kenya have to be perceived in the context of such variable ground-situations, and of such open texture in the scope for necessary public actions. A consideration of different Constitutions shows that they are often written in different styles and modes of expression. Some Constitutions are highly legalistic and minimalist, as regards express safeguards and public commitment. But the Kenyan Constitution fuses this approach with declarations of general principles and statements of policy. Such principles or policy declarations signify a value system, an ethos, a culture, or a political environment within which the citizens aspire to conduct their affairs and to interact among themselves and with their public institutions. Where a Constitution takes such a fused form in its terms, we believe, a Court of law ought to keep an open mind while interpreting its provisions. In such circumstances, we are inclined in favour of an interpretation that contributes to the development of both the prescribed norm and the declared principle or policy; and care should be taken not to substitute one for the other. In our opinion, a norm of the kind in question herein, should be interpreted in such a manner as to contribute to the enhancement and delineation of the relevant principle, while a principle should be so interpreted as to contribute to the clarification of the content and elements of the norm.”
THEORIES OF LAW
NATURAL LAW THEORY
This is the theory that states that law is derived from nature or human reason.
Features of natural law
Natural law is universal, unchanging and everlasting. That which is good is considered to be in accordance with nature but that which is evil is contrary to nature. Therefore natural law is good and thus the measurement for any law to be considered as such is morality. In addition there exists an order in nature which is rational and known to man i.e. man’s comprehension of nature. There are absolute values and ideals emerging from nature which serve as the validity of law. A law lacking in moral validity is wrong and unjust.
Justinian
The law of nature is the law which nature has taught all animals. This law is not peculiar to the human race, but belongs to all living creatures, birds, beasts and fishes. This is the source of the union of the male and the female, which we called matrimony, as well as of the procreation and raring of children; which things are characteristic of the whole animal creation.
Aquinas
Law is a rule or measure of action in virtue of which one is led to perform certain actions restrained from the performance of others. The term law derives from ‘binding’ because it one is bound to a certain course of action. But the rule and the measure of human action is reason, which is the first principle of human action.
Cicero
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons 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. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this fact will suffer the worst penalties, even if he escapes what is commonly considered punishment.
Finnis
He claimed that natural law is the set of principles of practical reasonableness in ordering human life and human community. Drawing on Aristotle and Aquinas he sets up the opinion that there are certain basic wants and needs for human beings. These wants are influenced by natural law; Life, knowledge, play, aesthetic experience, sociability or friendship, practical reasonableness, religion. Human wants/needs must be seen in the light of a community of human beings. Only in communal life are there the conditions for the pursuit of basic wants and needs. The pursuit of which requires a legal system for realization and regulation.
Hobbes
Importance of natural law
• It greatly influences the development of human rights
• It emphasizes the need for morality in legal systems
• Its social contract aspect emphasizes the need for representative democracy, separation of powers and state sovereignty
• Its relevant to the development of international law
POSITIVE LAW THEORY
Legal positivism is based on the simple assertion that the proper description of law is a worthy objective, and a task that needs to be kept separate from moral judgments i.e. it is the view that a descriptive, or a morally neutral, is both possible and valuable. In simple terms, legal positivism is built around the belief or the assumption or the dogma that the question of what is the law is separate from, the question of what the law should be. Positivists deny the relationship proposed between law and morals as proposed by natural law theorists. This is what is called the separation thesis. The claim of natural lawyers that law consists of series propositions derived from nature through a process of reasoning is strongly contested by legal positivists.
The term ‘positivism’ derives from the Latin positum, which refers to the law as it is laid down or posited. Broadly, the core of legal positivism is the view that the validity of any law can be traced to an objectively verifiable source. Put simply, legal positivism rejects the view –held by natural lawyers- that law exists independently from human enactment.
Legal positivists often claim that there is no necessary connection between law and morals, and that the analysis of legal concepts is worth pursuing distinct from sociological and historical inquiries and critical evaluation. The highest common factor among legal positivists is that the law as laid down should be kept separate from the law as it ought morally to be. In other words, that a clear distinction must be drawn between “ought” (that which is morally desirable) and “is” (that which actually exists).
Austin & Bentham
Jeremy Bentham theory of law was utilitarian. Appeals to natural law were to him nothing more than “private opinion in disguise” or “mere opinion of men self-constituted into legislatures”. He strongly criticised reliance on common law due to its vagueness, indeterminacy and uncertainty. He argued that it could not provide a reliable, public standard which can reasonably be expected to guide behaviour. He argued that the common law should be codified. Bentham insisted on the separation of what he called ‘expositorial’ and ‘censorial’ jurisprudence. The former describes what is, the latter what ought to be.
John Austin in his major work ‘The Province of Law Determined’ articulates a conception of law based on the idea of commands or imperatives. Both Austin and Bentham stress the subjection of persons by the sovereign to his power, (although Austin’s approach seems to be only suited for criminal law due to its emphasis on behaviour). Austin’s identification of commands as the hallmark of law leads him to a more restrictive definition of law than is adopted by Bentham who seeks to formulate a single, complete law which sufficiently expresses the legislative will.
Both share a concern to confine the scope of jurisprudential inquiry to accounting for and explaining the principal features of the law. In the case of Austin, however, his map of ‘law properly so called’ is considerably narrower than Bentham’s, and embraces two categories: the laws of God and human laws. Human laws (i.e. laws set down by men for men) are further divided into positive law or laws ‘strictly so called’ (i.e. laws laid down by men as political superiors or in pursuance of legal rights) and laws laid down by men not as political superiors or not in pursuance of legal rights. Laws ‘improperly so called’ are divided into laws by analogy (e.g. laws of fashion, constitutional and international law) and by metaphor (e.g. the law of gravity). Laws by analogy, together with laws set by men not as political superiors or in pursuance of legal right, are merely ‘positive morality’. It is only positive law that is the proper subject of jurisprudence.
The central feature of Austin’s map of the province of jurisprudence is the notion of law as a command of the sovereign. Anything that is not a command is not law. Only general commands count as law. And only commands emanating from the sovereign are ‘positive laws’. Austin’s insistence on law as commands requires him to exclude customary, constitutional and public international law from the field of jurisprudence. This is because no specific sovereign can be identified as the author of their rules. Thus, in the case of public international law, sovereign states are notoriously at liberty to disregard its requirements.
For Bentham, however, commands are merely one of four methods by which the sovereign enacts law. He distinguishes between laws which command or prohibit certain conduct (imperative laws) and those which permit certain conduct (permissive laws). He argues that all laws are both penal and civil; even in the case of title to property there is a penal element. Bentham seeks to show that laws which impose no obligations or sanctions (what he calls ‘civil laws’) are not ‘complete laws’, but merely parts of laws. And, since his principal objective was the creation of a code of law, he argued that the penal and civil branches should be formulated separately.
The relationship between commands and sanctions is no less important for Austin. Indeed, his very concept of a command includes the probability that a sanction will follow failure to obey the command. But what is a sanction? Austin defines it as some harm, pain, or evil that is conditional upon the failure of a person to comply with the wishes of the sovereign. There must be a realistic probability that it will be inflicted upon anyone who infringes a command. There need only be the threat of the possibility of a minimal harm, pain, or evil, but unless a sanction is likely to follow,
the mere expression of a wish is not a command. Obligations are therefore defined in terms of sanctions: this is a central tenet of Austin’s imperative theory. The likelihood of a sanction is always uncertain, but Austin is driven to the rather unsatisfactory position that a sanction consists of ‘the smallest chance of incurring the smallest evil’.
The idea of a sovereign issuing commands pervades the theories of both Bentham and Austin. It is important to note that both regard the sovereign’s power as constituted by the habit of the people generally obeying his laws. But while Austin insists on the illimitability and indivisibility of the sovereign, Bentham, alive to the institution of federalism, acknowledges that the supreme legislative power may be both limited and divided by what he calls an express convention.
For Austin, to the four features of a command (wish, sanction, expression of a wish, and generality) is to be added a fifth, namely an identifiable political superior – or sovereign – whose commands are obeyed by political inferiors and who owes obedience to no one. This insistence on an omnipotent lawgiver distorts those legal systems which impose constitutional restrictions on the legislative competence of the legislature or which divide such power between a national legislature and lawmaking bodies of constituent states or counties. Bentham, on the other hand, acknowledges that sovereignty may be limited or divided, and accepts (albeit reluctantly) the possibility of judicial review of legislative action. Austin’s contention that ‘laws properly so called’ be confined to the commands of a sovereign leads him to base his idea of sovereignty on the habit of obedience adopted by members of society. The sovereign must, moreover, be determinate (i.e. the composition of
the sovereign body must be unambiguous), for ‘no indeterminate sovereign can command expressly or tacitly, or can receive obedience or submission’. And this results in Austin famously refusing to accept as ‘law’ public international law, customary law, and a good deal of constitutional law.
Moreover, by insisting that the sanction is an indispensable ingredient in the definition of law, Austin is driven to defining duty in terms of sanction: if the sovereign expresses a wish and has the power to inflict an evil (or sanction) then a person is under a duty to act in accordance with that wish. The distinction between a ‘wish’ and the ‘expression of a wish’ resembles the distinction between a bill and a statute.
Austin’s association between duty and sanction has attracted considerable criticism, though it may be that he was merely seeking to show – in a formal sense – that, where there is a duty, its breach normally gives rise to a sanction. In other words, he is not necessarily seeking to provide an explanation for why law is obeyed or whether it ought to be obeyed, but rather when a legal duty exists. Nevertheless, he unquestionably accords unwarranted significance to the concept of duty. The law frequently imposes no direct duty, such as when it facilitates marriage, contracts, and wills.
The less dogmatic approach of Bentham allows that a sovereign’s commands constitute law even in the absence of sanctions in the Austinian sense. Law, according to Bentham, includes both punishments (‘coercive motives’) and rewards (‘alluring motives’), but they do not define what is and what is not law.
Bentham and Austin laid the foundations for modern legal positivism. But their ideas have been considerably refined, developed, and even rejected, by contemporary legal positivists.
MARXIST LAW THEORY
Marxism is a political and economic doctrine which advocates for socialism and communism. Marxism defines law as rules made by a ruling class, laid out in a legislative manner which is imposed on people.
Features of the Marxist law theory
• A materialistic conception of the universe as opposed to natural law’s dependence on metaphysical validation
• The belief that production under capitalism is governed by exploitative economic laws
• The belief that the history of the society is that of a class struggle which leads to an inevitability of conflict
• Law is used as an instrument for class domination. The Bourgeoisie use law to maintain the economic and political status quo over the Proletariats.
• The existence of a state, based on class differentiation and due to the division of labor, which serves the purposes of the bourgeoisie. Finally the state, law and classes disappear due to revolutions.
Antonio Gramsci
He believed that class domination resulted as much from popular consensus engineered in civil society as from physical coercion or its threat by the state apparatus. This was, he thought, particularly the case in advanced capitalist societies where the media, mass culture, education and the law take on a new role. It followed that the existing order was strengthened and perpetuated by certain “superstructure’ phenomena and that therefore the struggle for liberation required the creation of a ‘counter-hegemonic’ world view. For Gramsci revolution is not an event but a process and what he calls ‘consciousness transformation’.
Pashukanis
Pashukanis viewed viewed legal theory as an historical enquiry. First, in that in understanding of burgeois forms of law required an historical approach to the question of law because law was a result of a specific stage of social development only and secondly he saw the task of Marxist legal theory as being to demonstrate the transient nature of law. Law exists, he wrote, ‘for the purpose of being utterly spent’.
Criticism
• The class struggle concept of social development is a simplistic view of a very complex social phenomenon
• There is rejection of the rule of law and human rights abuse in Marxist states
• Its blueprint to overthrow capitalism is highly controversial and debatable
• The Marxist theory ignores the high social mobility in capitalism
• Marxist countries have been and are ruled by dictators
• Failure of the socialist system hence it has not stood the test of time
SOCIOLOGICAL SCHOOL OF LAW
This is the theory that that is based on the influence of law and vice versa.
Jhering
• The purpose of law is social
• Social values influence law
• The existence of a society is for the satisfaction of human wants
• Law is the equilibrium of social want and individual want
• Law aims at creating unity from diversity
Roscoe Pound
• Law keeps peace in the society
• Law creates certainty and uniformity in the society
• Law seeks to create equality and security
• Law protects interests that further civilization
Max Webber
Webber emphasized the peculiarly rational quality of legal institutions in modern western societies. He saw law as passing through stages from ranging from charismatic legal revelation through what he called ‘law phrophets’ to a systematic elaboration of law professionalized administration of justice by persons who have received their legal training in a learned and formally logical manner.
Durkheim
He was of the belief that law was the measuring rod of any society. Law, he thought, reproduces the principle forms of social solidarity. According to him there are two basic types of social cohesion or solidarity; mechanical solidarity to be found in homogenous societies and organic solidarity which was to be found in more heterogeneous and differentiated modern societies which rest on functional inter dependence produced by the division of labor. Linked to these forms of integration are two types of law: repressive law and restitutive law. In a society based on mechanical solidarity law is essentially penal. With increased differentiation societal reaction to crime becomes a less significant feature of the legal system, and restitutive sanction becomes the main way of resolving disputes.
Ehrlich
Law is derived from social facts and depends not on state authority but on social compulsion. Law differs little from other forms of social compulsion, and the state is merely one among many associations, though it possesses certain characteristic means of compulsion. The real source of law is not statutes or reported cases but the activities of the societies itself. There is ‘living law’ underlying the formal rules of the legal system and it is the task of the judge and the jurist to integrate these types of law.
LEGAL REALISM
The dawn of the 20th century saw the emergence of legal realists, arguing that the established legal tradition was formalistic, mechanical and conservative. Chief among the realists were Oliver Wendell Holmes Jr., Karl Llewellyn, Jerome Frank, among others. That tradition, they charged, wrongly saw the law as a complete and autonomous system of logically consistent principles, concepts, and rules. To apply the law was to unfold the ineluctable implications of those rules. The judge’s techniques were socially neutral, his or her private views irrelevant; judging was more like finding than making, a matter of necessity rather than choice. The realists, by contrast, saw legal certainty as rarely attainable and perhaps even undesirable in a changing society. In their view the paramount concern of the law was not logical consistency but socially desirable consequences. Law was an instrument of government, and jurisprudence should focus less on legal concepts than on social facts.
Justice Holmes
He emphasized on the fact that the life of the law was experience as well as logic, and his view of law as predictions of what courts will decide, stressed the empirical and pragmatic aspect of law. Legal history was to be studied primarily as a first step towards the deliberate reconsideration of the worth of rules developed historically. Also law must be strictly distinguished from morals, for the lawyer is concerned with what the law is , not what it ought to be.
Karl Llewellyn
• Law is not static
• Law is a means to a social end
• The society is ahead of law hence advocates for the continuous revision of law
• Law is “as law does” as opposed to as opposed to “ought” or “is”
• Law is evaluated in terms of its impact and effect on the society
Basis for legal realism
According to the realists, legal decisions were not compelled; choice was necessary at every step. Just as lawmakers built their ideological preferences into a statute, judges built theirs into their formulation of “the facts” of a case. Legal concepts represented nothing more than tentative decisions to consider diverse cases identical with respect to a given concern. Unless readjusted continually, such concepts could be rendered irrelevant by changing circumstances and purposes.
Realism meant opposition to illusion or pretense, sometimes to abstractions or appearances. Judges had always made law, but now, the realists insisted, they must know and say that they did. They must acknowledge their responsibility instead of attributing their choices, through tortured technicalities, to the compulsions of legal doctrine. Realists argued that legal rules and reasons figure in judicial decision-making simply as post-hoc rationalizations for decisions reached on the basis of non-legal considerations.
The realists argued that the law was “indeterminate”. By this, they meant two things: first, that the law was rationally indeterminate, in the sense that the available class of legal reasons did not justify a unique decision (at least in those cases that reached the stage of appellate review) ; but second, that the law was also causally or explanatorily indeterminate, in the sense that legal reasons did not suffice to explain why judges decided as they did. Causal indeterminacy entails rational indeterminacy on the assumption that judges are responsive to applicable (justificatory) legal reasons.
As to the core claim of realists, all the realists agreed that the law and legal reasons are rationally indeterminate, so that the best explanation for why judges decide as they do must look beyond the law itself. Thus to realists, judges respond primarily to the stimulus of the facts of the case, rather than legal rules and reasons. However, unlike the later Critical Legal Studies writers, the Realists, for the most part, did not overstate the scope of indeterminacy in law. The Realists were generally clear that their focus was the indeterminacy of appellate review, where one ought to expect a higher degree of uncertainty in the law.
Criticisms
CONCLUSION
BIBLIOGRAPHY
There are no sources in the current document.
