JURISPRUDENCE I NOTES

No universal definition of Jurisprudence. People have different ideologies and notions throughout the world.

Every jurist has his own notion of the subject-matter and proper limits of jurisprudence and his approach is governed by his allegiances, or those of his society, or by his ‘ideology’.

When an author speaks about political conditions of his society, it reflects that condition of law prevailing at that time in that particular society.

The word ‘Jurisprudence’ was derived from the Latin word ‘jurisprudentia’, which in its widest sense means ‘knowledge of law’.

‘Juris’ means law, and ‘prudentia’ means skill or knowledge.

Thus, jurisprudence signifies knowledge of law and its application. In this sense it covers thewhole body of legal principles in the world.

It is believed that Romans were the first who started to study what is law.

The history of this concept of law reveals that jurisprudence has assumed different meanings at different times.

It is therefore difficult to attempt a singular definition of this term.

It has a long history of evolution beginning from the classical Greek period to the 21^st century modern jurisprudence with numerous changes in its nature in various stages of its evolution.

In its limited sense, jurisprudence means elucidation of the general principles upon which actual rules of law are based.

It is concerned with rules of external conduct which persons are constrained to obey.

Therefore, etymologically jurisprudence is that science which imparts to us the knowledge about law.

‘Law’, is a term of various connotations. E.g. it has various branches such as contracts, torts, crimes, property etc. and in jurisprudence we have to study the basic principles of each of these branches.

However, we are not concerned with detailed rules of these laws.

In yet another sense, jurisprudence may be regarded as the philosophy of law dealing with the nature and function of law.

This approach to jurisprudence is receiving primacy in modern times keeping in view the rapid social changes taking place in recent years.

It has been termed ‘functional jurisprudence’, the thrust being on interrelationship between law and justice.

1. Salmond’s Definition of Jurisprudence

Salmond defines jurisprudence as "The science of law" or "Civil law".

To Salmond it is systematic study of civilization.

That law is a science and it is concerned with right and duties belonging to every citizen.

He uses the term jurisprudence in two senses:

1. Generic Jurisprudence includes the entire body of legal doctrines.
2. Specific jurisprudence deals with a particular department of legal doctrines. In this sense, it is also defined as "The Science of the first principles of the civil law".

Generic Sense

Generic Jurisprudence includes the entire body of legal doctrines. In that sense, jurisprudence is of three kinds.

1. Expository or Systematic Jurisprudence

It deals with the contents of an actual legal system as existing law at any time, whether in past or in present.

2. Legal History

It deals with the history of development of law.

3. Science of Legislation:-

The purpose of the science of legislation is to set forth law as it is and not as it ought to be.

It deals with the ideal of the legal system and the purpose for which it exists.

Specific Sense

Specific jurisprudence deals with a particular department of legal doctrines.

In this sense, it is also defined as "The Science of the first principles of the civil law".

He divides the subject into three branches:

This division of the schools of Jurisprudence is based upon the fact that certain basic assumptions about law characterise the Jurists of each school and distinguish them from those of other schools of juristic thought.

A comprehensive basis of classification is provided by the attitude of the jurists towards certain basic relations of law, e.g.,

1. its relation to the State;
2. its relation to the society; and
3. its relation to certain ideals such as justice, freedom of will or the pursuit of happiness.

The schools are:

1. Analytical Jurisprudence             
2. Historical Jurisprudence
3. Ethical Jurisprudence

THEORIES OF JURISPRUDENCE

1. Analytical Jurisprudence

Analytical jurisprudence deals with the analysis of basic principles of law.

It is not concerned with the past stages of its evolution.

It is not concerned with its goodness or badness. The purpose is to analyse and discuss the law of the land as it exists today.

Jurists: Jeremy Bentham was the real founder of the English Analytical School. Later on Austin took over the analytical method. Other chief exponents are Sir William Mark by. Amos, Holland, Salmond and Prof. Hart.

Scope: According to Salmond, scope of analytical Jurisprudence lies as follows:

a)      Analysis of the concept of law.

b)      An examination of the relation between civil law and other forms of law.

c)      An analysis of the ideas of state, sovereignty and administration of justice.

d)     Study of sources of law

e)      Investigation of the theory of legislation, judicial precedents and customary law.

f)       An inquiry into the scientific arrangement of law into distinct departments along with an analysis of distinctions on which the division is based

g)      An analysis of the concept of legal right.

h)      An investigation of the theory of legal liability in civil and criminal cases.

i)        An examination of other relevant legal concepts.

Importance of Analytical Jurisprudence:

Analytical jurisprudence brought about precision in legal thinking. It provided us with clear, definite and scientific terminology.

It deliberately excluded all external considerations which fall outside the scope of law.

2. Historical Jurisprudence

Historical jurisprudence deals with the scientific study of evolution and development of principles of law.

It is the history of the legal principles and conceptions of legal system.

Jurists: headed by Savigny, Montesqieu, Rousseau etc..

Scope:

a)      It deals with law as it appears in its various forms at its several stages of development.

b)      It deals with the origin and dev. of those legal conceptions & principles which are so essential in their nature as to deserve a place in the philosophy of law.

c)      It seeks to show the conditions that gave rise to the legal conceptions, to trace their spread and development, and to point out those conditions and influences which modified them in the varying course of their existence.

Importance of historical jurisprudence:

The contribution of historical school is that law cannot be understood without an appreciation of the Historical jurisprudence as a movement for fact against fancy, a call for a return from myth to reality.

 

3. Ethical Jurisprudence

Ethical jurisprudence deals with the law as it ought to be in an ideal state.

It investigates the purpose of law and the measure and manner in which that purpose is fulfilled.

It concerns itself chiefly with the relation of law to certain ideas which law is meant to achieve.

 Jurists: The chief exponents of ethical jurisprudence are Bentham, Hobbes, Kant etc.

Scope:

To Salmond, a book of ethical jurisprudence may concern itself with all or any of the following matters:

a)      The concept of law

b)      The relation between law and justice

c)      The manner in which law fulfills its purpose of maintaining justice

d)     The distinction between the sphere of justice as the subject-matter of law, the other branches of right with which law is not concerned with and which pertain to morals exclusively.

e)      The ethical significance and validity of those legal concept and principles which are so fundamental in their nature as to be the proper subject-matter of analytical jurisprudence.

It can be analyzed from Salmond definition that there is nothing like universal element in law because it is the science of law of the land and is thus conditioned by factor which prevail in a particular state.

He also pointed out that study of jurisprudence must also include ethical and historical aspects without which study of jurisprudence will become barren study.

In Salmond's point of view, Jurisprudence thus deals with civil law or the law of the state.

This kind of law consists of rules applied by courts in the administration of justice.

Three kinds of laws govern the conduct of humans in a society.

1. Theologian Laws - derive their authority from a divine or superhuman source intended to regulate human conduct and beliefs and are enforced by spiritual rewards or penalties in the other world (ultra-mundane sanctions);
2. Moralist Laws - Man-made that exist in all societies, both primitive and most civilized. There is no definite authority to enforce the laws, but the public.
3. Jurist Laws - Regulates external human conduct only and not inner beliefs. They can exist in politically organized societies, which has a Government. They are enforced by courts or judicial tribunals of the society which applies a variety of sanctions ranging from fines to capital punishments.

To Salmond, Jurisprudence is the science of first principles of jurist law or in Salmond's words civil law.

He explains that the subject of jurisprudence is the compilation of all the laws governing human society.

Thus for understanding this subject one needs to know what Law actually is.

For this, Salmond introduces the persona of the jurists, that is the capability of the jurists to provide the logical and rhetorical techniques for the naming of what law is and delimiting the requirements of the administration of civil justice.

So, the exercise of prudence and judgment on the part of the jurist rather than simple compliance is mandatory requirement.

This aspect of the persona of the jurist can be understood in terms of character and ethos.

2. Gray’s Definition of Jurisprudence

It is the science of law, the statement and systematic arrangement of the rules followed by the courts and the principles involved in those rules.

Study of Jurisprudence is both theoretical exercise concerning the development of law as it has evolved as well as a functional perception of social processes, ethos (beliefs) and other forces which shape and condition the ultimate quality and content of a legal system.

Jurisprudence, broadly speaking is normative and evaluative study of basic legal values and ideals of a society which impart validity and recognition to legal system.

NATURE AND SCOPE OF JURISPRUDENCE

Jurisprudence is entirely a different subject from other social science:

It is not codified but a growing and dynamic subject having no limitation on itself. 

Its inquiry system is of different status from other subjects as a jurist does not base his study on the rules made but tries to understand their utility after due deliberation.

It is a procedure or a concept to understand the essentials principles of law and legal system.

It is the theory and philosophy of law because scholars of jurisprudence or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions.

It involves certain types of investigation into law; an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems.

In jurisprudence we are not concerned to derive rules from authority and apply them to the problem, we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of legal concepts and on the essential feature of the legal system.

Thus, whereas in law we look for the rule relevant to a given situation, in jurisprudence we ask, what is it for a rule to be a legal rule, and what distinguishes law from morality, etiquette and other related phenomenon.

Therefore, it can be concluded that jurisprudence comprises of philosophy of law and its object is not to discover new rules but to reflect on the rules already known.

PURPOSE OF JURISPRUDENCE

It is essential for a lawyer, in his practical work, to have knowledge of jurisprudence.

Such a study serves to train the mind into legal ways of thought.

Affords a key to the solution of many provisions of civil law, which would otherwise appear to be singular and unaccountable.

Without such knowledge, no lawyer, however eminent, can really measure the meaning of the assumptions upon which his subject rests.

CONTENTS OF JURISPRUDENCE

The following are the contents of jurisprudence:-

1. SOURCES: The basic features of a legal system are mainly to be found in its authoritative sources and the nature and working of the legal authority behind these sources.

Under this head matters such as custom, legislation, precedent, pros and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc., are included for study.

2. LEGAL CONCEPTS: - Jurisprudence includes the analysis of legal concepts such as rights, title, property, ownership, possession, obligations, acts, negligence, legal personality and related issues.
3. LEGAL THEORY: - This is concerned with law as it exists and functions in the society and the manner in which law is created and enforced as also the influence of social opinion and law on each other.

It is therefore necessary while analysing legal concepts, effort should be made to present them in the background of social developments and changing economic and political attitudes.

VALUE, UTILITY OR IMPORTANCE OF JURISPRUDENCE

It is often said that jurisprudence being an abstract and theoretical subject, is devoid of any practical value.  It is not correct.

Jurisprudence is not without practical value. It has been rightly said that Jurisprudence is the ‘eye of the law’

The eyes are one of the most important parts of human body. Almost all human activities and the movements of body are possible only through them. Unless man can see anything properly, he cannot do any work.

The reason of calling jurisprudence the ‘the eye of law’ is that jurisprudence functions for law in the same manner as the eyes do in human body. 

For example- the interpretation of law is a very difficult task, It cannot be done without the help of jurisprudence. 

Paton observes ‘Jurisprudence is a particular method of study, not the law of one particular country but of the general notions of law itself.’

Whenever any complicated problem regarding law like:-

1. How and when the law developed.
2. What is its object.
3. Whether the law was made by people or it was due to the inspiration of some Divine force.
4. Whether the law is a command of a sovereign or it is a result of gradual development of civilization in society.

The main function of jurisprudence is to study the origin of law, its development and its contribution towards society.

Matters relating to birth, marriages, death, succession etc., are equally controlled through laws.

It is a well-known saying that, “ignorance of law is no excuse,” hence it is essential to know the correct basic principles of law which are contained only in jurisprudence. 

Law is also connected with civil life. A person who obeys laws is known as a civilized citizen. A person who does not obey law is punished.

It is therefore necessary that all people should have sound knowledge of law which is possible only with the help of jurisprudence. 

Therefore, jurisprudence, having so much importance for the society, has rightly been called the eye of law

Some of the values of Jurisprudence include:

1. According to Salmond: Jurisprudence has its own intrinsic interest like any other subject of serious scholarship. Likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest.  The legal researchers on jurisprudence may well have their effect on contemporary socio-political thought and at the same time may themselves be influenced by these ideologies.

2. It seeks to rationalize the concepts of law, which enable us to solve the different problems involving intricacies of law. In other words, it serves to render the complexities of law more manageable and rational and in this way it can help improve practice in the field of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens the outlook of lawyers and sharpens their logical technique.

It helps them in putting aside their rigidity and formalism and trains them to concentrate on social realities and the functional aspects of law.

Law also has to take note of the needs of society and of the advances in the related and relevant disciplines such as sociology, economics, philosophy etc. It is not the form of law but the social function of law which has relevance in modern jurisprudence.

Example: a proper understanding of law of contract may perhaps require some knowledge of economic and economic theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and perhaps also of sociology.

4. Holland observed, “the ever renewed complexity of human relations call for an increasing complexity of legal details, till a merely empirical knowledge of law becomes impossible.”

Thus jurisprudence throws light on the basic ideas and the fundamental principles of law in a given society. 

5. Jurisprudence helps judges and lawyers in ascertaining the true meaning of the laws passed by the legislature by providing the rules of interpretation. It furnishes them with an opportunity to pinpoint the shortcomings and defects in the laws framed by the legislature and improvise them through their judicial interpretation.
6. The study of jurisprudence helps in rationalising the thinking of students and prepares them for an upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of human affairs boldly and courageously.

7. Jurisprudence may also be helpful to legislators who play a crucial role in the process of law-making.  It may familiarise them with technicalities of law and legal precepts thus making their job fairly easy and interesting.

According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring theory and life into focus for it concerns human thought in relation to social existence.

The law should serve the purpose of social-engineering by preserving societal values and eliminating conflicting interests of individuals in the society.

Conclusion

Jurisprudence deals with law from the philosophical point of view, and is therefore sometimes described as an abstract subject. This is however a misconception.

Jurisprudence does have multifarious practical applications inasmuch as it may be said to be the foundation of all branches of law.

 

Topic 2

THEORIES OF KNOWLEDGE

·         Materialism

·         Idealism

·         Comparative Analysis

·         Dialectical Materialism

·         Historical Materialism

·         Rationalism

·         Empiricism

·         Pragmatism

·         Existentialism

THEORIES OF KNOWLEDGE (EPISTEMOLOGY)

The term “epistemology” comes from the Greek "episteme," meaning "knowledge," and "logos," meaning, roughly, "study, or science, of."

Epistemology is the study of knowledge.

Philosophy can be divided into two major directions of thought, centered on what is considered to be the fundamental issue in philosophy: the relation between Being and Thinking.

Let us consider some very basic feature of our being. We sit for instance on a chair. We can see the chair, we can touch it, and the other senses can as well perceive of the chair. Now these perceptions all occur within our brain, where the input data of the sensory organs come together, and form an "image" of the thing we perceive.

A central issue in this is apart from our perceptions and awareness of the chair, is there really something outside and separate from our mind?

Materialism answer this with a clear yes. Not only by our senses but also through science and instruments, we can know about this object, that is separate from our mind.

There is an objective world, independent of our mind. The objective world consists of what is called matter, which has the property of being in motion (undergoing change) at all time.

Space and time just denote the modes of existence of matter.

Idealism answers this with a clear no. Apart from our immediate perceptions and awareness of the world, there is no such thing as an outside, objective world.

The world takes places entirely within our mind. Outside of that, nothing exists.

This divide in opinion is attributable to the course the proponents of either schools of thought take in answering questions of philosophy: while the materialists choose to rely on “being” the idealists rely on thinking.

The proponents of materialism include Karl Marx, Freidrich Engels and Lenin among others while the proponents of idealism include Hegel, Emmanuel Kant among others.

These opposing philosophies contradict each other in their definition of what the world is consisting of in primary instance.

MATERIALISM

Materialism is a tendency to be more interested in the material things, physical comforts than in spiritual values.

Materialism claims that in first instance the world is just matter in motion. (physical thing as distinct from mind and spirit).

In its philosophy, materialism holds the view that the material world is prior to the mind and it is the belief that only the material things exist.

Our mind, brain and body only denote a specific form of matter. So, our mind, awareness and thoughts, are a secondary property of matter.

The philosophy of materialism considers that the first is material there while the idea or thought arises after seeing the material.

In other words materialism recognizes that the material determines the idea, not the idea of determining the material.

Example: as a table or chair objectively exist, then the person thinks about a table and chairs.

That no one can anyone think of a table or chair before it is shaped table or chair because they have not or do not exist.

Materialism explains and interprets life or social phenomenon basing on material causes and this makes its explanation of social phenomena to become scientific.

Materialism claims that the world in knowable. Through science we have been able to acquire a lot of knowledge, and science will ever progress.

Materialism rejects the idea of absolute knowledge. Science can improve our knowledge, but cannot find the ultimate or absolute truth.

Knowledge progresses through relative knowledge, that create a gradual improving and more 'realistic' picture of the outside, objective, material world.

The way we gain more knowledge is by doing experiments, verify theories, explore the material world, etc.

The building of theories follows the experiment and observation.

We cannot have prior knowledge about the world, before exploring it, and no scientific theory can be claimed to be true, if it cannot be experimented or observed.

Materialism takes the view that everything, even the spiritual is dependent and determined by something material and that the process of knowing is that the mind responds to impressions that are made upon it by external matter.

Some Fundamental Principles of Materialism

All that exists (form) is derived from a single source - material

Do not believe in the existence of the supernatural

Positioning science instead of religion in laying down the law

IDEALISM

Idealism is the practice of forming or pursuing or believing in ideas even when this is not realistic.

Basically, it is the belief that ideas are the only things that are real or about which we can know anything.

To idealist, the mind is prior to external objects, all external things must be known by the mind and pronounced upon before we can say they exist.

The theory presupposes that everything material is as the mind interprets it to be.

Idealism places a lot of importance on the role of the mind and intelligence  of the individual and his entire personality in the process of understanding reality.

To idealists, we should be concerned primarily with with the search for truth. Since truth is perfect and eternal, it cannot be found in the world of matter that is both imperfect and constantly changing.

Idealists think that humans can become more noble and rational by developing the ability to think.

In its early/basic form, idealism was founded on religious and spiritual conceptions and therefore inseparable from superstition, belief in the supernatural, the mysteries and the unknowable.

It must however be noted that some modern idealists have since shed off this religious and spiritual aspects.

Some Fundamental Principles of Idealism

Spirit and mind constitute reality

Man being spiritual is a supreme creation

God is the source of all knowledge

Values are absolute and unchanging

What is ultimately real is not the object itself but the idea behind it

Man is not the creator of values

COMPARATIVE ANALYSIS BETWEEN MATERIALISM AND IDEALISM

The two concepts are distinct as shown below:

Materialism interprets social phenomenon from material causes and gives materialist explanation of social phenomena. Idealism on the other hand conceives, explains and interprets life, social and natural phenomenon from spiritual standpoint.

This fundamental difference in world outlook manifests itself in both general philosophical and social conceptions of the world as a whole, conceptions of particular things and events including the conception of law itself.

Idealism believes that there is always another more real non-material world which is prior to or takes precedence over the material world. The material world is subject to that other world.

For materialism, there is only the material world and that everything that exists comes into being on the basis of material causes and arises and develops in accordance with the laws of motion of matter.

Materialism teaches that matter is objective to reality, existing outside and independent of the mind and everything mental or spiritual.

Idealism on its part asserts that the spirit, mind and ideas can and do exist in separation from matter.

Materialism teaches that the world and its laws are knowable and that while much of the material world may not be known at a particular point, there is no unknowable sphere of reality that lies outside the material world.

Idealism asserts that there exists a realm of mysteries, unknowable and beyond what man can ascertain or know by perception, experience and science.

In practice, the importance of taking the outlook of materialism is that the way we live and the way society is organized are determined by material causes.

Yet in practice the importance of taking the outlook of idealism is that it is the ideas we hold which are determined by the way we live and the way society is organized.

Materialism and idealism are relevant in understanding legal positivism and natural law theory respectively.

These two theories of law are premised on theories of knowledge.

Idealism as a theory helps us understand the basic legal principles buried in nature hence the link with legal naturalism.

Just like materialism insists on the material in itself being independent of any external force so does legal positivism demand that the law be as it is and independent of other factors, moral or otherwise.

 

How has it changed over time? What internal&external tensions/pressures/conflicts have produced these changes & shaped its development?

Where does this “thing” process seem to be going?

ASSIGNMENT

• Discuss Lenin’s view of Dialectical Materialism
• Discuss Hegel’s view of Dialectical Materialism
• Discuss Historical Materialism

 

RATIONALISM

This was derived from the Latin word “ratio” which means “reason”.

In epistemology, rationalism is the view that "regards reason as the chief source and test of knowledge" or "any view appealing to reason as a source of knowledge or justification".

More formally, rationalism is defined as a methodology or a theory "in which the criterion of the truth is not sensory but intellectual and deductive"

The rationalist theory of knowledge suggests that all behaviors, opinions, actions etc. should be based on reason and not feeling or religious belief.

The rationalists argued that certain truths exist and that the intellect can directly grasp these truths.

Plato acknowledges that man gains knowledge through the sensory organs, however, he pointed out that if we stop using our senses we could still gain knowledge of the world differently.

Plato teaches that there are three types of knowledge:

1. shadows and echoes;
2. real things (seeing the real thing without gaining knowledge; and
3. ideas (pure ideas).

Plato concludes that because of these ideas man can rise from ignorance to knowledge but this is not automatic as it requires efforts and mental discipline.

One of the proponents of this school of thoughts: Decartes was quoted to have said “I am certain that I can have no knowledge of what is outside me except by means of the ideas I have within me.”

In the Meditations, after Descartes casts ideas as modes that represent objects to the mind, he divides ideas into kinds. He says:

“Among my ideas, some appear to be innate, some to be adventitious, and others to have been invented by me. My understanding of what a thing is, what truth is, and what thought is, seems to derive simply from my own nature. But my hearing a noise, as I do now, or seeing the sun, or feeling the fire, comes from things which are located outside me, or so I have hitherto judged. Lastly, sirens, hippogriffs and the like are my own invention.”

Here, Descartes considers three kinds of idea: innate ideas, adventitious ideas, and what are sometimes called factitious ideas.

The categories are determined by what appears to him to be differences with respect to the origins of their contents.

1. Innate ideas (ideas present from birth)
2. Adventitious ideas (ideas which stems from outside)
3. Factitious ideas (ideas created by ourselves)

Our judgements can concern the existence of external things, imaginary things, or concepts that the mind seems to be born with.

The rationalists had such a high confidence in reason that empirical proof and physical evidence were regarded as unnecessary to ascertain certain truths –

In other words, "there are significant ways in which our concepts and knowledge are gained independently of sense experience".

The rationalist believes we come to knowledge a priori – through the use of logic – and is thus independent of sensory experience.

In other words, as Galen Strawson once wrote:

"you can see that it is true just lying on your couch. You don't have to get up off your couch and go outside and examine the way things are in the physical world. You don't have to do any science.”

EMPIRICISM

Empiricism comes from a Greek word “emperia” which is “experencia” in Latin or “experience” in English.

As a philosophical theory empiricism is based upon experience rather than reason as the sources of knowledge.

The empiricist view holds that all ideas come to us a posteriori, that is to say, through experience; either through the external senses or through such inner sensations as pain and gratification.

The empiricist essentially believes that knowledge is based on or derived directly from experience.

According to Aristotle’s definition, experience is a product of sensory perception and memory.

This preposition means that knowledge depends ultimately on the use of senses and on what is discovered through them.

Empiricism in the philosophy of science emphasizes evidence, especially as discovered in experiments.

It is a fundamental part of the scientific method that all hypotheses and theories must be tested against observations of the natural world rather than resting solely on a priori reasoning, intuition, or revelation.

John Locke argues that all ideas are derived from experience either directly or by reflection of ideas of the senses.

To Locke, the human mind is like a table rasa (blank sheet) devoid of all character and therefore nothing can be in the intellect that was not previously in the senses.

That there are no ideas or concepts which are independent from experience as everything is a posteriori.

Knowledge is therefore limited to ideas generated by object we experience.

Hume on his part, opines that ideas are the faint copies left behind by such impressions in memory or evoke in the imagination.

That any proposition involving concepts that cannot be traced back to impressions of sensation or reflection would have to be dismissed as meaningless.

Berkeley stated that “to be is to perceived”

PRAGMATISM

Pragmatism is an American philosophy from the early 20^th century.

According to Pragmatism, the truth or meaning of an idea or a proposition lies in its observable practical consequences rather than anything metaphysical.

It can be summarized by the phrase “whatever works, is likely true.”

Because reality changes, “whatever works” will also change — thus, truth must also be changeable and no one can claim to possess any final or ultimate truth.

Pragmatism became popular with American philosophers and even the American public in the early 20^th century because of its close association with modern natural and social sciences.

The scientific worldview was growing in both influence and authority; pragmatism, in turn, was regarded as a philosophical sibling or cousin which was believed to be capable of producing the same progress with inquiry into subjects like morals and the meaning of life.

Things  are constantly changing. It is based on the view that reality is what you experience.

It believes that truth is what works right now and that goodness comes from group decisions.

As the result, schools exist to discover and expand  the society  we live in. Students study social experiences and solve problems.

C.S. Peirce, who coined the term, saw it as more a technique to help us find solutions than a philosophy or solution to problems.

He wrote:

“Consider what effects, which might conceivably have practical bearings, we conceive the object of our conception to have. Then our conception of these effects is the whole of our conception of the object.”

William James is the most famous philosopher of Pragmatism and he’s the one who made Pragmatism itself famous.

For James, Pragmatism was about value and morality: the purpose of philosophy was to understand what had value to us and why.

James argued that ideas and beliefs have value to us only when they work.

James wrote on Pragmatism:

“Ideas become true just so far as they help us to get into satisfactory relations with other parts of our experience.”

John Dewey on Pragmatism: In a philosophy he called Instrumentalism, attempted to combine both Perice’s and James’ philosophies of Pragmatism.

It was thus both about logical concepts as well as ethical analysis.

Instrumentalism describes Dewey’s ideas the conditions under which reasoning and inquiry occurs. On the one hand it should be controlled by logical constraints; on the other hand it is directed at producing goods and valued satisfactions.

ASSIGNMENT

• What is Existentialism?

 

 

 

Topic 3

DIFFERENCES BETWEEN LAW AND OTHER CONCEPTS

·         Ethics

·         Morality

·         Religion

·         Custom

LAW AND ETHICS

A definition of law should established clear distinctions between rules of law and rules of ethics, and between rules of law and such social rules as those of positive morality and of etiquette.

Distinction between law and ethics is fairly easy and there exists a fine line of difference between them. 

Law is the systematic set of universally accepted rules and regulation created by appropriate authority, i.e. government, which may be regional, national and international.

Law tends to prescribe what is considered necessary for that time and place.

Law is concerned with social relationships of men rather than the individual excellence of their character and conduct.

Ethics are the principles that guide a person or society, created to decide what is good or bad.

For a layman, these two terms are the same, but the fact is that there is a number of distinguishing point amidst these two terms.

 

 

Definition      

Law refers to a systematic body of rules that governs the whole society and the actions of its individual members.

Law is therefore set of rules and regulations.

Ethics is a branch of moral philosophy that guides people about what is good or bad.

Ethics is derived from the Greek word ‘ethos’ that means ‘arising from habit’.

These values too come from within a person’s moral sense and desire to preserve his self respect.

It is a collection of fundamental concepts and principles of an ideal human character.

The principles help us in making decisions regarding, what is right or wrong, evil, justice and responsibility.

It also seeks to establish a set of duties that a person owes to himself and the others. 

It informs us about how to act in a particular situation and make a judgement to make better choices for ourselves.

It sets a standard of how a person should live and interact with other people.

It attempts to define what is good for the society and the individual.

Laws help shape politics, economics and society in numerous ways and serves as a social mediator of relationships between people.

Ethics, being about actions and decisions, helps to shape an individual’s conscience and character.

Governing Body

Law is governed by Government. which may be local, regional, national or international.

Ethics is governed by Individual, Legal and Professional norms, i.e. workplace ethics, environmental ethics and so on.

Expression    

Law is expressed and published in writing.

Ethics are abstract.

Violation        

Violation of law is not permissible which may result in punishment like imprisonment or fine or both.

There is no punishment for violation of ethics.

Objective       

Law is created with an intent to maintain social order and peace in the society and provide protection to all the citizens.

Ethics are made to help people to decide what is right or wrong and how to act.

Binding          

Law has a legal binding.        

Ethics do not have a binding nature.

Judging

Law is judged by judicial standards.

Ethical behavior is judged by moral standards.

 

Application

Laws depend on the country, state and the place of the crime.

Ethics are universal and can be applied anywhere, all over the world.

Conclusion on the Distinction and Symbiotic Relationship Between Law and Ethics

It is true that law is more concerned with the social consequences of actions than with their effect on the character of actor.

Even when law bases liability on intention, there is a tendency to infer the intention from the conduct and to take somewhat external view of the problem.

Law in elaborating its standards, must not try to enforce the good life as such; it must always balance the benefits to be secured by obedience with the harm that the crude instrument of compulsion may do.

There are many ethical rules the value of the observance of which lies in the voluntary choice of those who attempt to follow them.

But there are other rules which it is essential for the law to enforce for the well being of the community. Ethics thus perfects the law.

Law thus lays down only those standards which are considered essential, whatever be the motive of compliance.

In one sense law may be a ‘minimum ethic’ but frequently law has to solve disputes on which the rules of ethics thrown very little light on.

For example, where two persons, neither guilty of negligence, have suffered by the fraud of a third, who is to bear the loss?

Ethics may suggest that the loss should be equally divided, but this is not a very practicable rule for the law which requires more definite rules for the passing of title and performance of contract.

The argument that the spheres of law and ethics are the same, while it contains much truth, cannot be pushed too far, for while the sphere of ethics may remain the same, that of law will widen or narrow according to the particular social philosophy adopted by the community.

What are today regarded as purely religious duties were once enforced by law; conversely, modern law will enforce many rules designed to save the individual from himself in a way that would seem absurd to a disciple of laissez-faire.

There is no immutable boundary to the area of operation of law.

Man is free to accept or reject the obligations of ethics, but legal duties are heteronomous, i.e. imposed on the individual without his consent.

If a rule of ethics, which is in accord with positive morality, is broken, there may be the effective sanction of the pressure of public opinion, but ethical rules which are in advance of the views of a particular community are enforced by no earthly force.

Reading Assignment

1. John MukumMbaku, Bureaucratic Corruption in Africa: The Futility of Clean-ups, Cato Journal, Vol. 16, No. 1 (Spring/Summer 1996);
2. J.G. Riddall, Jurisprudence, pp. 322-335 (“Two bites of the cherry: Civil Disobedience”)

LAW AND MORALITY

Positive morality is made up of the actual standards which are adopted in the life of any particular community.

Positive morality, like law therefore, emphasizes conduct rather than state of mind.

It is also similar to law in that it is imposed on the individual from without, for it has behind it the effective, if unorganized, sanction of public opinion.

How many men would rather break the law than wear the wrong tie with a dinner jacket?

Here we see the sanction behind a mere rule of etiquette, and the fear of ridicule or social ostracism protects strongly the more important rule of positive morality.

Various tests have been suggested to distinguish a rule of law from a mere dictate of positive morality.

1. A rule of law is imposed by the State unlike rules of morality;
2. While there may be a sanction behind the rules of positive morality, it is not applied by an organized machinery, nor is it determined in advance.
3. Some argue that the content of law is different from that of social morality. Many legal rules are morally indifferent, for instance, the rule of the road.

But while it is true that law, having a different object, covers a different scope, there is no immutable boundary to its operation.

Law, positive morality and ethics are overlapping circles which can never entirely coincide, but the hand of man can move them and determine the content that is common to all or two or confined to one.

Ethics condemns murder, but it was once accepted both by positive morality and law.

We do find a close relationship between the rules of law and those of positive morality, for the latter determine the upper and lower limits of the effective operation of law.

If the law lags behind popular standards it falls into disrepute; if the legal standards are too high, there are great difficulties for enforcement.

The close relationship between law and the life of the community is shown by the historical school, and if we admit that positive morality influences law, it must also be recognized that law in its turn plays a part in fixing the moral standards of the average man.

4. It has been suggested that the method of expression should be use as a test – rules of positive morality lack precision, whereas rules of law are expressed in technical and precise language.

There is much truth in this, but the distinction is only relative; for early law is fluid and vague, and some social usages may be expressed very precisely, for example, the modes of address of those bearing titles.

Theoretically there may be some difficulty in determining the exact distinction between positive morality and law. In practice, however, the legal order provides machinery for the determination of difficult cases.

The more philosophical approach has generally been to follow or adapt the thought of Kant by regarding laws as prescribing external conduct whereas morals prescribe internal conduct, that is moral alone are concerned with subjective factors, such as motive.

It is said that law, even when purporting to deal with motive, is really only concerned with its external manifestations on the well-known principle that “the thought of man is not triable, for the devil himself knoweth not the thought of man.”

To conclude, it must be said that for any legal system to be effective, there must be provision for the clarification of these issues.

Hence, in any given case, the practical distinction between morality and law is determined by the hypothesis laid down in the legal order itself.

Logically, it would be possible for a legal order to declare that all rules of positive morality should be regarded as law, and in that case the boundaries of each would be identical – but it would be absurd for the law to burden itself with multitudinous rules, many of which would be impossible to enforce.

LAW AND RELIGION

Religion is a structure of faith and worship. It's a belief system based on faith in a supernatural power.

Modern law and religion are essential sociopolitical phenomena that have in common some veiled elements.

Both aspire to constitute, or at least to frame, human consciousness and behaviour in all spheres of private and public life.

Accordingly, modern law and religion are complementary, contradictory and simultaneous sources of rule-making, adjudication and execution.

Both embed obedience and obligations, leadership, institutions and legal ideology as foundations of their maintenance and prevalence, based on a strict structure of commands.

From antiquity to current modernity amid various historical transformations, some of which have been revolutionary, law and religion have never been completely separated.

They have never been so independent as to achieve complete autonomy from each other.

Religion has essentially been embodied in modern legal systems, even in those that have aspired to privatize religion.

Religions are embedded in daily practices in various regions, from the Middle East through Africa to Europe, from Latin America to North America and Asia, in Western regimes and post-communist regimes alike.

Intimate relations between law and religion have been constituted and constantly transformed throughout history.

According to natural religious law – a law driven from a faith in God or in divine forces – morality and legality are embedded in religion.

Sacred law formulates a space for human choices and judicial discretion in the articulation of a celestial divine order.

Such a natural religious prism of law – prominent in the writings of theological thinkers in different religions such as St Augustine, Thomas Aquinas and Maimonides – has not only been a normative indicator of a good faith and a virtuous behaviour, but also the absolute criterion for obedience and disobedience to human-made law.

Thus, St Augustine has been a very influential religious thinker over Western thought.

His religious concept of De Civitate Dei has generated a religious normative model for the perfection of human society and expectations that political power in the ‘City of God’ should be legitimated through a religious faith.

His model has influenced a diversity of philosophers and scholars, including Enlightenment and contemporary philosophers.

In Obergfell v. Hodges, the United States Supreme Court said people have a Constitutional right to marry whomever we want, regardless of their gender.

Many people don’t agree with this. They feel it violates their religious belief that homosexuality is a sin. So they are very uncomfortable that courts say gay marriage is legal and, even worse, Constitutional.

They have a Constitutional right to freedom of religion, and now there is a Constitutional right that violates their religion.

What happens when one Constitutional right comes up against another? Is there a Constitutional trump card? More importantly, who gets their way?

There is no clear answer. It depends on who is acting and what other laws are involved.

The differences seem to be:

1. One can generally practice a religion without requiring everyone to hold and follow the same religious beliefs. However, laws are social constructs that require everyone to follow the same rules.
2. In a Western system of governance, the major difference between law and religion is that laws are enforced by the state.

For instance, many religions believe that drunkenness is a sin. However, an alcoholic can sit quietly at home downing shot after shot to the point of unconsciousness, and the police have no business interfering.

Now, many would say what he's doing to his body and his family is sinful, but as the popular, albeit not completely valid mantra states, government can't legislate religion.

The law must wait until the imbiber threatens public safety. Unless he destroys someone else's property, hurts someone, or gets behind the wheel of a car, he's free from prosecution under the law.

Reading Assignment

1. Objective XVIII and Articles 5 and 29 of the Ugandan Constitution;
2. Sharon et al. v. Makerere University Supreme Court of Uganda, Const. App. No. 2 of 2004; (Especially the Opinion of Odoki, CJ);
3. James Boyd White, How Should We Talk About Religion? Inwardness, Particularity and Translation

LAW AND CUSTOM

We might ask ourselves questions like, 'why do so many people put up Christmas trees during the Christmas holiday season', or maybe something more universal like, 'why do we hold doors open for strangers or shake someone's hand upon meeting them for the first time'.

Nobody forces us to do these things, and if we didn't do them, there aren't any real serious consequences we have to worry about.

The reason why we don't have to worry about not partaking in some of these gestures is because they are cultural customs rather than formal laws.

To be more specific, customs are widely accepted expectations of behavior that are particular to a specific place, time, or society.

Laws, on the other hand, are formal sets of rules that govern the behavior of a group of people.

The difference between customs and laws given here is subtle for now because they do sound somewhat similar. In fact, many formal laws do arise from customs. Example: Common law countries.

In order to get a deeper insight into the nature of custom and law, we may here establish a difference between the two:

1. Law is a make; custom is a growth

Law is explicitly and deliberately made by the definite power of the state, whereas custom “is a group of procedure that has gradually emerged, without express enactment, without any constituted authority to declare it; to apply it and to safeguard it.”

Custom emerges spontaneously without any guide or direction. Law is consciously created and put into force at the moment of its enactment.

2. Law needs a special agency for enforcement, custom does not

Law is applied by a special agency and is sanctioned by organized coercive authority.

Custom does not need any special agency for its application it is enforced by spontaneous social action.

No physical penalty visits a violator of custom; whereas punishment is meted out to one who violates the law. The state will not punish a child if it does not touch the feet of his parents in the morning.

3. Law is specific, customs are not

Law is specific, definite and clear. One can know what the laws of the land are. But as Maine opined, it is only known by a privileged minority.

Customs, on the other hand, are not definite or clear. They are not codified in any single book so that it becomes difficult to know all the customs of the land.

4. Law is more flexible and adaptable than custom

Law can readily adjust itself to changing condition: whereas customs cannot be readily changed. Customs are relatively fixed and permanent.

In times of crisis a law can be immediately enacted to meet the emergency. A sudden change cannot be brought about in custom.

The more dynamic the society, the less is reliance placed on traditional customary rules and the more it is placed on newly enacted regulations.

Roscoe Pound stated, “Law must be stable and yet cannot stand still.”

Thus law is more flexible and adaptable than custom. The former can be introduced, amended or abolished with relative ease, whereas to reform or adjust the latter is an arduous task.

5. Custom disappears, law is abolished

Customs fade and disappear without formal abolition and without recognition by any authority, but laws disappear only when abolished by a recognized authority.

Just as formal enactment of law is necessary for it to come into effect, so its formal abolition is necessary to stop its binding influence.

6. Law is more idealistic than custom

 Law tends to be more idealistic than customs. It is the offspring of mind and directed to aims which are far above the actual practice of society, custom is the product experience and mainly concerned with the daily routine of life.

Law reforms the customs and abolishes those which are out of tune with the changing conditions – see for example the repugnancy test.

7. Subject-matter

Law generally deals with matters which are vital to the life of society: whereas the subject matter of custom is more ordinary and familiar.

The customs we observe in addressing persons of authority or taking our meals or celebrating our festivals do not rise above the commonplace; but the laws passed for creating a National Council for Higher Education, establishing a welfare state, abolishing return of dowry, introducing four year degree course, making the passing of LDC compulsory before law practice deeply affect the social structure.

 

 

  

Topic 4

RELATIONS BETWEEN LAW AND OTHER CONCEPTS

·         Morality

·         Justice

·         Religion

LAW AND MORALITY

SCENERIO 1

Marten Hartwell crashed in a cut off area, in the early 70s. He was the only survivor. To stay alive until he get rescued he had to eat. His only source of food was the dead body of his companion, a young nurse.

What should he have done?

become a cannibal (eating death people) or starved to death?

He chose to live.

 

SCENERIO 2

Two mountaineers were climbing the Alps, roped together. One slipped and fell. Unable to move, he lay dangling at the end of the rope. The other climber couldn’t lift his companion back up, nor could he himself move on without cutting the rope.

What could he have done?

Cut the rope and sent his companion to his death or stayed there till both died?

He cut the rope.

What would you have done in Hartwell’s situation?

If you had been the climber in the Alps, would you have cut the rope?

Which would you put first – Self- preservation or the maintenance of another human life?

Do you think the law should have the answer to these questions?

Conjoined Twins Case

Jodie and Mary, Twins .

They have their own brain, heart, lungs and other vital organs. They each have arms and legs. They are joined at the lower abdomen.

They can be successfully separated.

But the operation would kill the weaker twin. Mary.

The only way that Mary is alive is the connection with her sister, Jodie, who is stronger and can pump blood for both of them.

Within minutes of separation, Mary will die.

But if the operation does not take place, both will die within 3-6 weeks.

The parents are not able to make such decision, they are Roman Catholics and they believe that they should leave them in God’s hands.

The doctors are convinced that they can complete the procedure and save Jodie.

So the hospital wanted a declaration that the process may be lawfully carried out.

The court granted the declaration on the ground that:

1. Its in Mary's best interest,
2. It was in Jodie's best interest, and
3. In any event it would be legal.

It was approved But the parents appealed (did not agree)

Section 1 of the children Act 1989 states that “the child’s welfare shall be the courts highest thought.”

While it may be in the best interest of Jodie, what about Mary?

What does Law (Defense) of Necessity/ (doctrine of necessity) mean?

The Doctrine of Necessity

In criminal law … is where the defendant is arguing that it was necessary for him/her to commit a crime.

The Doctrine of necessity often operates where the defendant has two alternatives either commit a crime OR suffer/cause another extreme hardship.

For example, prisoner escapes from a burning prison he may raise it was necessary for him to escape.

The Doctrine of necessity can only be pleaded in extreme circumstances and is often unsuccessful, such as in R. v. Dudley & Stephens case …. What happened ??

Dudley and Stephens along with Brooks and Parker alone at sea with no food

Dudley and Stephens proposed one person sacrifices himself in order to save the rest …

Brooks dissented while Dudley and Stephens decided to kill Parker since he was the weakest and youngest

The Three ate parker

They were rescued after 4 days, Dudley and Stephens were charged with murder..

The Issue is “Whether the killing of Parker was murder considering the circumstances of this case?”

The necessity of hunger does not justify murdering weak and young one ..

Killing an innocent life to save one’s own, does not justify murder even if it under extreme necessity of hunger.

“Does Morality form the Basis of Law?”

More and more people today consider morality as a matter of personal choice and taste.

Yet there remains a general expectation that the written law and legal decisions will at least roughly approximate to the prevailing moral values and moral judgments.

 “Does Morality Provide a Test of Law?”

Jurists have contended if law must conform to morals.

The Greeks and Romans supported the view.

In Rome, law was made to conform to natural law which was based on certain moral principles and as a result, jus civilewas transformed into jus gentium.

Most ancient jurists were of the view that law, even if it was not in conformity with morals, was valid and binding.

Middle Ages – Christian Fathers maintained that law must conform to Christian morals and any law which did not conform to them was invalid.

Islam also ordains that man-made law for its validity will have to conform to the revealed law.

17^th and 18^th centuries – popular view was that positive law must conform to natural law and any law which did not conform was to be disobeyed and the government which made that law to be overthrown.

Modern time – law is considered valid and binding even if it is not in conformity with morals.

Validity of law is now often decided by the constitution of the state.

If law violates the constitution it is determined as ultra vires of the constitution.

Courts can also decide on any social practice that has taken the shape of a valid custom and test it on the basis of ‘fundamental rights’, ‘fundamental duties’, ‘public policies’, ‘public interest’ and ‘public morality’.

Courts are here regarded as ‘guardian of social morality’.

Yet stills, ordinarily, laws conform to morals as there is a close relation between law and the life of the community. Hence:

1. Law requires the support of morality, and aspects of morality may be expressed in law; and
2. Morality normally requires that we obey the law.

To fail to pay one's taxes is as morally wrong as it is against the law, as is a misrepresentation in the sale of goods or services.

Paton: “If the law lags behind popular standard, it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement.”

Law and morality stand opposed to each other?

Examples of practices that have been opposed primarily through pressure for legal reform.

1. Institutionalized injustice and the struggles for equality and human rights;
2. Penal codes sanctioning excessively cruel or inappropriate punishment;
3. The legal endorsement of slavery and the slave trade;
4. The barring of religious and ethnic minorities from the professions, and
5. The denial of civil rights to women.

Other outstanding examples of manifest incongruence between morality and law:

1. The Nazi Nuremberg laws,
2. The laws establishing and upholding apartheid in South Africa and
3. The US racial segregation laws.

LAW AND MORALITY

Everyone agrees that morality can, and usually does, play a role in law.

There is disagreement, however, as to whether there is any role it must play.

In particular, while some theorists hold that any moral value or moral merit which law may have is merely contingent, others disagree, saying there is a necessary connection between law and morality.

They say it is inherent in the very concept of law that its content should conform to moral requirements.

The former belong in the positive camp and the latter in the natural law camp.

CLASSICAL NATURAL LAW THEORY

Natural law theory has been remarkably influential since it made its first appearance 2,500 years ago in ancient Greece.

Its origins lie in the idea that there is a rational order which exists in nature and which is discoverable by human reason.

This rational order is said to be the source of universal and objective moral standards, that is, standards of right and wrong in human conduct.

These moral standards are thought to constitute a form of law – natural law (as opposed to ‘man-made’ law).

Since this form of law owes its existence and authority to nature and not human beings, it is irrelevant whether it is recognized by positive or human legal systems.

Furthermore it is a higher form of law and is therefore capable of invalidating human standards which are in conflict with it.

At its most extreme, this view sees moral validity as necessarily a precondition for legal validity, holding that nothing can be law that is not moral.

A less extreme version holds that its only standards which flagrantly breach the standards of morality which cannot be regarded as laws or lose their character as laws.

 

LEGAL POSITIVISM

Natural law view suggested that there is a necessary connection between the concepts of law and morality.

The school believes that law is the embodiment of a moral aspiration.

That law is inherently something that serves justice and if it deviates too far from that path it is more accurate to describe it as terror than as law.

According to the Positivist school however, there is no such connection between the concepts of law and morality – that ‘law is as serviceable for evil as for good’.

This view is sometimes called the ‘separabilitythesis’.

It is a view to which Austin, Hart and Kelsen all adhere, despite their disagreement on other matters. Bentham is also on their camp.

Law, according to the separability thesis, is not necessarily just. The law as it is, is not necessarily the law as it ought to be.

‘A law which actually exist’, said Austin, ‘is a law, though we happen to dislike it’.

‘The validity of positive legal norms’ says Kelsen, ‘does not depend on their conformity with the moral order’.

For Austin, if a standard is to enjoy the status of law it must be traced to a command of the sovereign and since the sovereign’s command may be evil, it follows that law and standards of morality can come apart.

For Hart, what makes a particular standard a legal standard is its conformity to conventionally accepted criteria of legal validity and since there are no moral restrictions on what can come to be accepted as a matter of convention, law can be either good or bad.

Finally, for Kelsen, the validity of any legal statement depends on the existence of an unbroken chain of norms which can be traced back to the historical starting point of whatever legal order is currently in force and ultimately to the grundnorm.

It follows as Kelsen says, that ‘legal norms may have any kind of content. There is no kind of human behaviors that, because of its nature, could not be made into a legal duty corresponding to a legal right’.

Thus our three thinkers all accept the separability thesis because for all of them the fact that a particular standard counts as law in a particular society is purely a matter of chance events or contingent matters of social fact –

1. the fact that the sovereign happens to have commanded it; or
2. that it satisfies criteria which happen to have been accepted by legal officials; or
3. that legal authorities have created in a way which conforms to norms which happen to be contained in the constitution of an effective coercive order.

From this social thesis, or belief in the social foundation of law, follows their distinctively positivist conclusion: ‘nothing about the very existence of legal institutions, or about their lawness, tells us anything about their morality’.

Prof. Hart’s Four Questions on Relationship between Law and Morality

H.L.A. Hart (1907-1992) has listed the main questions concerning the relationships between morality and law.

1. whether the development of law has been influenced by morality (and vice versa);
2. whether some reference to morality must enter into an adequate definition of law;
3. whether the law is open to moral criticism; and
4. whether it is the business of the law to enforce morality—more exactly, to make immorality a crime.

First Question - It seems clear that the development of law is influenced by morality, even if morality is not the sole influence.

Example: Legislation aimed at ending discrimination on the basis of race or gender; for the impulse toward this sort of legislation comes from the moral insight that people are equal and should be treated equally.

Similarly, legislation concerning conditions in the workplace is founded ultimately on such considerations as the dignity of the person, the right to fair remuneration for one's labours, and the need to preclude exploitation—all of which are issues of morality.

That law may influence the development of morality seems equally clear.

Example:

Legislation concerning drink driving was greeted with reluctance by many drivers, and no doubt is not wholeheartedly accepted by all yet. And it may be complied with reluctantly, and only for fear of punishment, so that the moral value of compliance in an individual case is slight if it exists at all.

Yet there are many drivers who, though they complied at first reluctantly, do so now more freely, because they recognise that this law concerns the protection of life and the elimination of a threat to life and bodily integrity.

Second and Third Questions – The two are related: whether a reference to morality must enter into any adequate definition of law, and whether the law is open to moral criticism.

These are the questions at the centre of the debate between natural law theorists and positivists, and they bear directly upon the question of whether there is a moral obligation to obey the law.

Ø  If it is necessary for the validity of a law that it be not immoral, immorality is a basis for disobedience; and

Ø  the failure of a law to meet criticism from a moral standpoint is also a reason why someone might decide that he or she was justified in disobeying it.

Although related, the two are nevertheless separate questions: One might answer the former negatively whilst the latter affirmatively.

Positivists deny any connection between legal validity and morality, but that doesn't mean that they consider the law is beyond moral criticism; nor do they think one is always morally obliged to obey the law.

John Austin thought that to say that a law was invalid because immoral was "stark nonsense”.

But H.L.A. Hart recalls that for Austin as for Jeremy Bentham, a positivist stance regarding legal validity went along with the conviction that "if laws reached a certain degree of iniquity then there would be a plain moral obligation to resist them and to withhold obedience".

Gustav Radbruch(1878 - 1949), a German jurisprudent who dramatically repudiated positivism when he saw the way in which Nazi leaders exploited the disjunction between law and morality which positivism espoused, came to take the view that:

"the fundamental principles of humanitarian morality were part of the very concept of Recht or Legality and that no positive enactment or statute, however clearly it was expressed and however clearly it conformed with the formal criteria of validity of a given legal system, could be valid if it contravened basic principles of morality".

Fourth Question - Whether it is the business of the law to enforce morality "as such", or to proscribe immorality just because it is immoral.

This question was the subject of a debate between himself and Sir Patrick (later Lord) Devlin, following publication of the latter's 1959 Maccabaean lecture on morals and the criminal law. 

Devlin's lecture was a critique of the Report of Wolfenden Committee charged with the task of making proposals for the reform of the law concerning prostitution and homosexual activity.

This led to the theories on law and morality relationship.

Relationship Between Law and Morality: Three Main Theories

1. The Liberal View (harm to others) proposed by John Stuart Mill

Also sharing a libertarian view is the report given by the Wolfenden Committee

2. The Moralistic view (harm to society) proposed by Lord Devlin
3. Paternalist view (harm to self and others) proposed by Professor H.L.A Hart

 

The Liberal View

John Stuart Mill posits that the only purpose for which power can be rightly exercised over any member of a civilised community against his will is to prevent harm to others. 

His own good, either physical or moral is not sufficient. 

Mill argues this approach is good for individuals and society.

The Wolfenden Committee also of the Libertarian view posits that they see the law as preserving public order and decency, protecting the citizen from what is offensive and injurious.

That it also provide sufficient safeguards against exploitation and corruption of others, particularly those who are vulnerable because they are young, weak in body and in mind, inexperienced, or in a state of special physical, official or economic dependence.  

However, it is not the function of the law to intervene in the private lives of citizens, or to seek to enforce a particular pattern of behaviour further than is necessary to carry out the purposes outline.

Based on this premise the Committee recommended that homosexuality between consenting males in private should no longer be a criminal offence. 

They suggested that the society ought to give the individual freedom of choice and action in matters of private morality. 

That unless a deliberate attempt is made by society, acting through the agency of the law, to equate the sphere of morality with sin, there must remain a realm of private morality and immorality which is in brief terms “not the law’s business”.

They made the same argument for prostitution.

To impose a way of life on moral grounds is to assume infallibility about moral values.

Bad ways of living might still have some insight or truth to them that we would lose if we banned them.

Diversity of lifestyles causes people to think about how to live, which leads to better lives.

Different people need to live different sorts of lives.

The Moralistic View

To Devlin there is only one explanation of what has been accepted as the basis of criminal law and that is that there are certain standards of behaviour or moral principles which society requires to be observed

That the breach of them is an offence not merely against the person who is injured but against society as a whole. 

Devlin believed that there was such a thing as public morality.

To Devlin, an established morality is as necessary as good government to the welfare of society.

That societies disintegrate from within more frequently than they are broken up by external pressures.

There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration.

That society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.

“The suppression of vice is as much the laws business as the suppression of subversive activities, it is no more possible to define a sphere of private morality than it is to define one of private subversive activity.”

That it is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of vice.

There can be no theoretical limits to legislation against immorality.

You may argue that if a man’s sins affect only himself it cannot be the concern of society.

If he chooses to get drunk every night in the privacy of his own home, is anyone except himself the worse for it?

But suppose a quarter or a half of the population got drunk every night, what sort of society would it be?

You cannot set a theoretical limit to the number of people who can get drunk before society is entitled to legislate against drunkenness.

Lord Devlin’s argument outlined

1. Morality is essential to the welfare of society.
2. Morality is social, not private.
3. It is the business of government to look after the welfare of society.
4. So it is legitimate for government to pass laws on the basis of preserving moral values.

The Paternalistic View

The final theory is the most modern and is the Paternalistic view, harm to self and others as put forward by Prof. Hart in the 1960s. 

His theory is that the law should only intervene in the private lives of citizens to prevent harm to others and harm to oneself.

He did acknowledge that there was a difficulty in defining harm but that it did not include moral harm to oneself.

An existing law illustrating this theory is the law which prevent methods of prostitution.

The Paternalistic view focuses very much on the individual.

Morality in Courts

English Courts

Shaw v. DPP (1962) HL - D was charged for conspiring to corrupt public morals by publishing a booklet containing details on prostitutes, and their services.  This was hitherto an unused common law offence.

Knuller v. DPP [1973] HL - D published a gay contact magazine thereby was charged for conspiring to corrupt public morals.

Gillick v. West Norfolk and Wisbech Area Health Authority [1986] HL - a Roman Catholic mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent. 

R v. R (rape - marital exemption) [1991] HL - D, living apart from his wife, raped her in her parents’ home, which he had forcibly entered.

R v. Brown (1993) HL - D1-5 engaged in various homosexual sadomasochistic practices in private. They used genital torture and inflicted injuries, willingly and enthusiastically participating in the commission of acts of violence against each other for the sexual pleasure it engendered in the giving and receiving of pain. None requiring medical treatment.

Indian Courts

Naz Foundation v. Government of Delhi 2009 - The Delhi High Court ruled that Indian Penal Code Section 377, a law prohibiting sodomy, is unconstitutional as violative of privacy and equality rights. Plaintiff in the case was an AIDS service organization. In briefs before the court, different agencies within the government split on whether to defend the law. The court responded by requiring scientific evidence to support arguments that the law served a public purpose. 

Khushboo v. Kannaiammal(Supreme Court of India) 2010 –

India's Supreme Court has dismissed all cases against a Tamil actress who spoke in support of the right of women to have pre-marital sex.

Actress Kushboo was accused of outraging public decency and 22 cases were filed against her in 2005.

The remarks stirred controversy in a conservative country where pre-marital sex and live-in relationships are still considered a taboo.

The Madras High Court had earlier rejected her appeal to dismiss the cases against her. But the Supreme Court endorsed the right of unmarried couples to live together.

The judges said that even Hindu Gods Lord Krishna and Radha were co-habiting lovers. In the Court’s view.

Malaysia

Kean Thong and Anor v. Public Prosecutor [2006] 3 MLJ 389 - Ooi Kean Thong, 24, and Siow Ai Wei, 22, were alleged to have been in an embrace at 5.20pm on 2 Aug 2003, at a park near Kuala Lumpur's Petronas Twin Towers.

In their appeal, their lawyer contended that the Act did not give the Datuk Bandar of Kuala Lumpur the power to enact by-laws on matters of "decency" or "morality" and to prosecute anyone for "indecent behaviour" like kissing and hugging in a public place.

The Chief Justice of Malaysia dismissed the appeal saying that hugging and kissing in a public place was against Asian morals. The two appealed to the Federal Court.

There it was argued that the mayor had failed to take into consideration the fact that Malaysia was a multiracial country with different value systems, and that the act of hugging and kissing was an expression of love which should be encouraged.

Chief Justice Ahmad Fairuz Abdul Halim responded:

"So, they should be given freedom to live as they like? The Constitution allows all citizens to do that, even by the roadside, in a public park? In England, those acts are acceptable to the people in that country but is kissing and hugging acceptable to Malaysian citizens? Is the act according to the morality of Asian people?” he asked.

The court unanimously held that the Datuk Bandar of Kuala Lumpur was correct to charge Ooi and Siow with indecent behaviour (hugging and kissing) at the Kuala Lumpur City Centre Park.

The court ruled that the section invoked by the Datuk Bandar to punish persons caught behaving indecently in public was constitutional.

Summary of the Relationship between Law and Morality

The relationship between law and morality, particularly in the modern era, is not as straightforward as it might initially appear.

1. The existence of unjust laws (such as those enforcing slavery) proves that morality and law are not identical and do not coincide.
2. The existence of laws that serve to defend basic values - such as laws against murder, rape, malicious defamation of character, fraud, bribery, etc. - prove that the two can work together.

3. Laws can state what overt offenses count as wrong and therefore punishable. Although law courts do not always ignore a person's intention or state of mind, the law cannot normally govern, at least not in a direct way, what is in your heart (your desires). Because often morality passes judgment on a person's intentions and character, it has a different scope than the law.
4. Laws govern conduct at least partly through fear of punishment. Morality, when it is internalized, when it has become habit-like or second nature, governs conduct without compulsion. The virtuous person does the appropriate thing because it is the fine or noble thing to do.

5. Morality can influence the law in the sense that it can provide the reason for making whole groups of immoral actions illegal.
6. Law can be a public expression of morality which codifies in a public way the basic principles of conduct which a society accepts. In that way it can guide the educators of the next generation by giving them a clear outline of the values society wants taught to its children.

LAW AND JUSTICE

What does it mean to assert that judges should decide cases according to justice and not according to the law?

Is there something incoherent in the question itself?

What is the relationship between law and justice?

Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law.

That question can be tackled from many different directions.

One angle of approach would be to ask whether there is some essential or necessary connection between legal validity and justice.

The view that only just laws are legally valid is usually associated with natural law theory; whereas the view that there is no essential or necessary connection between law and justice is characteristically associated with legal positivism.

Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a conclusion that justice is somehow part of law.

Clarification of the Concept

As there is no unanimous definition of law there is equally no unanimous definition of the concept of justice.

Justice as a concept is less tangible and its definition, like law, has been under debate since ancient Greece.

Typically, however:

1. Justice evokes ideas of fairness and equity.
2. The right thing to do; or generally
3. Rendering to each person what he or she deserves.

About the meaning ‘deserve’

Ø  Do we deserve something because we've earned it?

Ø  What about good physical looks?

Ø  What about talent?

Ø  What about a propensity to work hard? Does the person who trains the hardest deserve to win a race — or should the victory go to the swiftest?

Ø  Does the heir to an estate deserve to inherit its wealth?

In the 2^nd century A.D., Ulpian (a prominent Roman Jurist) defined justice as "the constant and perpetual will to allot to every man his due."

Let us look at anti-terrorism laws, whether these important laws give us both security and justice.

Nobody doubts the need for laws conferring special powers enabling authorities to identify terrorists and potential terrorists and to neutralize any terrorist activity.

But do they work justice to individuals?

Legislation empowering the security personnel to carry out surveillance, or to search and to seize property can be justified when there are reasonable grounds shown, provided such powers are precisely targeted on the detection and prevention of terror and the apprehension of terrorists.

But what of the following:

1. The power to compel submission to interrogation?; or
2. The power to detain and interrogate without charge; or
3. The power to charge, detain and submit to interrogation; or
4. The power of preventative detention?

Clearly, an exercise of these powers constitutes a remarkable invasion of common law rights, especially if the person is not a suspect and may not be even a sympathizer of terror.

Fifty years ago, Fullagar J spoke in Trobridge v. Hardy (1955) 94 CLR 147, 152 of an interference with an individual’s person and liberty as "prima facie a grave infringement of the most elementary and important of all common law rights".

Anti-terrorism laws vest the power to interfere with a person’s liberty in the Executive Branch of Government which controls the procedure and those laws deny natural justice to the person who is the subject of the power.

A person may be detained in custody, virtually incommunicado, without even being accused of involvement in terrorist activity, on grounds which are kept secret and without effective opportunity to challenge the basis of his or her detention.

When statute exempts a repository of power from the obligation to observe natural justice, an exercise of the power is attended with the risk of injustice.

This injustice which is not curable by judicial intervention and which may not even be revealed if the repository of the power does not have to disclose the material on which he or she acted.

It was John Locke who pithily observed: "Where-ever law ends, tyranny begins"

When looked at critically law and justice are not synonymous. Law is a social regulator; justice is a moral value.

Law and Justice from Schools of Thought

1. Natural Law School

It assumes that there is a higher order of law, and if the laws of society follow this order they will be just.

Aristotle supported this view and believed that the higher law could be discovered from nature.

Others such as St. Thomas Aquinas thought that the higher law came from God.

For Aquinas, a law could be unjust in two ways:

1. A law which is contrary to human good, whether in its form or in its result, was according to Aquinas, not true law at all.

However such laws might still be obeyed if to do so would avoid causing social disorder.

2. A law which was against God’s will, and therefore a violation of the natural law, should be disregarded.

Natural law tends to judge the justice of any social organization by the extent to which it protects its minorities and most vulnerable groups.

2. Utilitarianism

The movement which includes Mill and Bentham, is based on the idea that society should work towards the greatest happiness for the greatest number, even if this means that some individuals lose out.

Utilitarians assess the justice of rules (and therefore law) by looking at their consequences:

in their view, if a rule maximizes happiness or well-being or some other desirable effect, for the majority, it was just.

A law could therefore be just even if it created social inequalities or benefited some, at the expense of others, so long as the benefits to the many exceeded the loss to the minority.

3. Positivism

For positivists, law can be separated from what is just or morally right.

Parts of law may be based on or incorporate ideas of morality or justice but this is not a necessary component of law; a law is still a law and should be obeyed even if it is completely immoral.

4. Marxism

Marx was of the view that it was impossible for a capitalist society to be just.

This is because such a society was organized with the aim of upholding the interests of the ruling class, rather than securing justice for all. 

For Marx, a just society will distribute wealth on the basis ‘from each according to his capacity, to each according to his needs’.

That individuals should contribute what they can to society and receive what they need in return.

See also the following:

1. Definition of justice under the Economic Analysis of Law
2. Rawls Theory of Justice
3. Nozick and the Minimal State

CASE AGAINST JUSTICE

1. Justice is Dangerous

Human liberty as advanced by the progress of civilization is dependent upon the rule of law.

In order for freedom to flourish, people need to know what the law is and need to have confidence that officials will faithfully apply the law as it is written.

If a police officer can arrest you because you have somehow violated his sense of justice and if a judge can convict you because she thinks that what you did was unjust, then you might be incarcerated for innocent behavior.

There would be no predictability in such a system.

We would not know in advance how to control our conduct to avoid landing in jail.

Imagine a "hippie" judge on the bench saying to the parties, "Don't confuse me with legal mumbo-jumbo; just tell me your stories, and I'll stop you at the point when I've discovered where justice is in this case."

Human liberty would be forfeited at the mercy of officials whose subjective sense of “justice” might be unpredictable as well as collectively incoherent.

Moreover, officials are very likely to regard as “just” those measures and actions that are politically expedient.

It may be argued that, justice is dangerous as a basis for judicial decision-making because it robs us of predictability and security.

All we have is the Hobbesian state of nature, where there is "continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short."

2. Justice is Irrelevant

Many thinkers, most notably Hans Kelsen, have argued that law and justice are two different things, each unrelated to the other.

Kelsen wanted to achieve a "pure science of law," in which law was ascertainable and predictable.

That goal seemed to him to preclude infesting law with anything as indeterminate as justice.

Justice is indeterminate, according to Kelsen:

“… because the statement: something is just or unjust, is a judgment of value referring to an ultimate end, and these value judgments are by their very nature subjective in character, because based on emotional elements of our mind, on our feelings and wishes. They cannot be verified by fact, as can statements about reality . . . . This is the reason why in spite of the attempts made by the most illustrious thinkers of mankind to solve the problem of justice, there is not only no agreement but the most passionate antagonism in answering the question of what is just.

Kelsen calls for a "clear separation" of law from justice.

Nevertheless, Kelsen acknowledges a role for justice under the law.

“Justice under the law," Kelsen says, "means legality; it is 'just' for a general rule to be actually applied in all cases where, according to its content, the rule should be applied. It is 'unjust' for it to be applied in one case and not in another similar case.“

Kelsen thus has made three points in furtherance of his claim that justice should be separated from law:

1. law is determinate but justice is indeterminate;
2. whether or not a law is ''just'' is a consideration that is external to the legal system; and

3. justice under law simply means that a rule of law must be applied to all cases that come within the rule.

When justice is compared with law, we can see that law affects a community; justice and injustice are experienced by individuals.

There may be similarities between law and justice but there are some very obvious differences between law and justice.

They are both part of society, they encourage a certain morality in people and they both are there to bring some balance to a community.

The Greek philosopher, Plato, believed that law should provide inner harmony and justice in the state, and that law and justice could be used as moral educators.

Justice is like the ultimate goal that civilization has been aiming towards since the beginning of societies.

The law is the tool we use, and have been using for hundreds of years, as our method to find justice.

Justice from Philosophers

Plato developed the idea of justice as an end in itself having qualities of truth and reality higher than positive law.

Aristotle, a student of Plato, in his Nichomachean Ethics, defined justice as treating equals equally and unequals unequally.

Aristotle argues that the basis of justice is fairness and that this takes two forms:

1. Distributive Justice: whereby the law is used to ensure that social benefits and burdens are fairly distributed throughout society;

2. Corrective Justice: whereby the legal system acts to correct attempt by individuals who disturb this fair distribution.

According to Pythagoras, equality was tantamount to justice. Thus, the reward or punishment of human action should be proportional to his degree of his goodness or badness.

Pythagoras defined justice in mathematical terms: Justice is like a square number. It gives the same for the same and thus is the same multiplied by the same.

The morale of this mathematical conceptualization is proportionality.

So, when a person damages the property of another, he has to make it good through restitutio in integrum or restore the victim to the condition in which he would have been had the wrongful conduct not occurred.

Radbruch who was Minister of Justice under the Weimar Republic – wrote a book entitled Five Minutes of Legal Philosophy (1945) wherein he ‘converted’ from legal positivism to natural law. He wrote that:

‘Preference should be given to the rule of positive law, supported as it is by due enactment and State power, even when the rule is unjust and contrary to the general welfare, unless the violation of justice reaches so intolerable a degree that the rule becomes “lawless law” and must therefore yield to justice.’

According to Hart, Legal system may show some concerns to justice or morality but it does not follow that a criterion of legal validity must include, expressly or by implication, any reference to justice or morality.

A law remains law no matter how morally iniquitous.

Kelsen views justice as an “irrational ideal.”

Noting that justice represents the value-preferences of individuals and is not subject to cognition.

Kelsen concluded that it is incapable of scientific definition or description.

To him, pure science of law seeks the real and possible law, not just law.

His theory declines to justify or condemn law on the basis of its satisfaction of the demands of justice.

Kelsen insisted that justice can be interpreted no more than ‘the conscientious application of appropriate general rules.’

According to Llewellyn, the two functions of law are:

1. to aid the survival of the community; and
2. to engage in the quest for justice, efficacy and a richer life.

Conclusion

Justice is an entirely subjective concept, largely depending on political affiliation, and previous experience of the legal system.

Similarly to law, there is a vast amount of documentation providing different definitions and different theories of justice.

In order to achieve justice, countries institute a legal system of some sort.

However, sometimes those systems are flawed, and therefore, an injustice will occur, such as when innocent people are convicted of crimes they did not commit.

A society's conception of what is just influences the laws that it passes.

For instance, Santa Clara University observes that one of the most pervasive ideas of justice comes from Aristotle's statement that "equals should be treated as equals." Modern American politics embodies this notion of justice, with specific laws widely prohibiting political, workplace and academic discrimination based on gender, race or other factors.

In our current dispensation, justice is the fundamental value which monitors the scope and content of the law.

Whether a particular law is just is essentially a political question.

However, consideration must also be given to whether the system is just, and whether that system produces just outcome.

This involves consideration of both formal justice (regarding the system) and substantive justice (regarding outcome).

We can see the relationship between law and justice under the legal system from the following:

1. Formal Justice

This requires a system of independent tribunals for the administration of law and resolution of disputes.

The existence of the formal trial and appellate courts together with the various forms of alternative dispute resolutions, ensures the legal system meets this requirement.

Formal justice also requires that these institutions follow known and fair rules and procedures.

This requirement is met through the rules of due process and fair procedure, rules regarding admissibility of evidence, limitation period etc.

An important contribution is also made by the rules of natural justice.

2. Substantive Justice

The legal system has a variety of mechanism to ensure just outcomes.

The principle of stare decisis (precedent) together with devices such as overruling and distinguishing, enables the courts to work towards both the just development of the law and a just outcome in any given case.

The courts may also turn to the principles of equity where the strict application of the law would lead to injustice.

The Parliament may equally improve the law through amendments.

LAW AND RELIGION

The relations between law and religion have adopted an almost infinite variety of forms through the very long history of these two forms of human activities.

First of such relationship is that law has been of a tremendous help in fostering religious freedom/unity.

The law prepares the ground by prescribing some acceptable modes of worship.

Since it is not possible for the whole world to be of one religion, there is need for law to perform this task.

Without such regulations, some barbaric religious practice such as sacrificing of human beings or killing of human beings may be permissible.

Second, in principle it is not difficult to draw a conceptual distinction between religious precepts and moral norms.

Examples of the former are the duty of the Catholic to attend Mass on Sundays and the duty of the Moslem not to drink alcohol.

Examples of the latter are the duties not to steal and not to kill the innocent.

While religious precepts are binding only on the adherents of the religious body which imposes them, moral norms or principles, if they are sound, are valid for all men irrespective of their religion.

The above distinction is important because while the imposition of a purely religious precept on people who are not members of a religious body is intolerable and is likely to destroy the basis for the religious coexistence of the adherents of different religions, basing the law on moral norms which are adopted by virtue of their intrinsic appropriateness in the regulation of common life is not objectionable in itself.

Even though it is acceptable for the laws of the society to reflect moral ideas which, at least in principle, can be defended without invoking religiously revealed doctrines.

A problem may arise when laws, which may have been enacted for purely secular reasons and that, in the view of the legislator or even of the great majority of the population, are unobjectionable from a moral point of view, are vigorously objected to on religious grounds by the members of some religious group.

Thus, law must be conversant with some religious precepts which if legislated against may cause national upheaval.

The law plays a pivotal role in ensuring freedom of religion. Discuss.

 

TOPIC 5

LAW, INDIVIDUAL AND THE STATE

LAW, INDIVIDUAL AND THE STATE

SCENERIOS

ONE

Imagine a middle-class man (Smith), living alone in a tiny one-room flat.

His daily diet includes black bread, synthetic meals, and gin.

His everyday routine consists of a dull job of blindly following orders, and his every step is closely monitored.

He is powerless, unable to pursue any of his interests.

He has to accept his life and his job as given, and he has to serve the government unconditionally, without asking any questions.

The only thing he can do on his own is to keep a diary with which he can share his thoughts and opinions; however, he has to hide his diary very carefully to avoid imprisonment and severe punishment.

TWO

Another middle-class man (Upshaw), living in a society that formally rejects discrimination, but regularly exercises discriminatory practices in an informal manner.

He is a policeman, and works with people who reveal homophobic and racist tendencies.

He is forced to abandon the murder case that interests him the most; other policemen consider the case unworthy of investigation since the victims are homosexuals.

He knows that if his fellow policemen notice his interest, they will disparage him, and so he investigates the case secretly.

He is homosexual himself, but tries to reject his inner urges; he tries to conceal his true self and to overcome his emotions by suppressing them.

He is seemingly free - the law does not forbid him from being homosexual - yet, he knows that the laws are not properly enforced and that the society is not ready to accept him as he is.

THREE

Imagine a middle-class man (McCandless), rejecting all conventional notions of life, abandoning his home, friends, and career aspirations, and pursuing an isolated life in the wilderness.

He destroys all of his identification documents and credit cards, ceases contact with the people he has known and lived with before, and strives to achieve self-realization alone.

He travels away from familiar places, far into the wild, and spends several months in isolation.

In scenario 1, Smith is constrained by the government and has to deny all aspirations of self-realization; instead, he has to sacrifice his interests to those of the regime. 

In scenario 2, Upshaw, in turn, is formally free from such pressure, but is still unable to achieve self-realization because of the informal attitudes and practices.

In scenario 3, McCandless is free from any interference. He detaches himself from the community and seeks self-fulfillment in isolation.

However, the three have one thing in common – they all are unhappy.

If Smith and Upshaw are unhappy because they are involuntarily subjected to the community and need individual freedom from the (formal and informal) constraints of others, McCandless is unhappy because he is isolated and needs support from others.

Smith is forced to accept the will of the Party in power, Upshaw commits suicide, unable to face and reveal his true identity, and McCandless dies of sickness as he runs out of supplies, unable to escape from the wildlife.

The tragic ending of all seems to indicate that neither of the two extremes is desirable; a life lived for others and directed by the community is as disastrous as a life lived in complete isolation and directed only by the self. 

Why is the government’s total intervention in the life of an individual as undesirable as its absolute absence and where can the balance between the two extremes be found?

Smith and Upshaw are unhappy because they are unable to satisfy their individual need for liberty and autonomy.

John Stuart Mill explains in his essay On Liberty,  there are three fundamental types of freedom – freedom of conscience, freedom of tastes and pursuits, and freedom of association. 

The freedom of conscience includes the absolute liberty of opinions, feelings, and emotions regarding any issue, and the liberty to express these thoughts and attitudes.

The freedom of tastes and pursuits includes the liberty of directing one’s life as one sees fit and of choosing one’s profession or activities according to one’s preferences.

The freedom of association follows from this principle and includes the right to join other individuals in associations and groups according to one’s wish.

The opportunity to exercise these three types of freedom is necessary for individual self-realization; therefore, in an ideal state, the government would give the citizens the opportunity to exercise the three kinds of liberty.

Indeed, Smith and Upshaw live in states that are far from this ideal model; they both are deprived of all three types of freedom.

Smith cannot think independently without being accused of “thoughtcrime,” he cannot pursue his interest in history, and he cannot join likeminded people, since he does not even have the right to ask others about their political views.

Likewise, Upshaw refuses to accept his true identity in the fear of either losing his job or being derided.

He cannot freely express his deep interest in the homosexual murder case, even though the laws are supposed to treat each individual equally, regardless of sexual orientation.

Hence, in an ideal state, an individual would possess all the three kinds of liberty, de-jure and de-facto, provided that none of his or her opinions, statements, actions, or associations involves harm to other individuals.

However, the right to exercise the three kinds of freedom might still be insufficient.

In fact, if Smith and Upshaw feel constrained, McCandless faces no limitations of this kind.

Nevertheless, even with the opportunity to satisfy his individual need for autonomy and freedom, he is unhappy, because he is unable to fulfill his social and political need, or the need for belonging. 

As Aristotle explains, humans are inherently social and political beings, and they naturally need and want to live together. 

McCandless himself concludes that “happiness is only real when shared.” Isolated in the wild, he feels unhappy, since he cannot share his thoughts or feelings with others.

Furthermore, he knows that there is nothing and no one to guarantee order and security or to provide the supplies needed to survive.

Likewise, even in a seemingly free society, Upshaw also feels insecure; the laws supposed to guarantee equal treatment of all citizens regardless of their sexual orientation or race are not enforced by the state and the liberal values are not shared by all community members.

Therefore, the complete absence of the government and its improper functioning are equally disastrous for individuals.

As the examples illustrate, the individual needs for liberty and autonomy may not coincide with the community needs for safety and order.

On the one hand, individuals need to have a right to organize their lives according to their taste, but on the other hand, they also need social attachments and safety.

This necessitate the existence of a State and law.

LAW AND THE STATE

According to Marx, the State is an instrument of class oppression.

That the executive of the modern State is but a committee for managing the common affairs of the whole bourgeoisie.

Marx traced the origin of the State to the division of labour and saw the State as in contradiction to the real interest of all members of the society.

It was an “illusory community serving as a screen  for the real struggles waged by classes against each other.

At each stage of production in history, there was a political organization which correspond  to that stage and which supported the interests of then dominant class.

According to Marx, the State acts as an intermediary in the formation of all communal institutions and gives them a political form.

Hence there is the illusion that law is based on will, that is, on will divorced from its real basis, on free will.

Sometimes, Marx notes, the State may be representative not of the whole class but only of a section of that class.

In the light of the above and in the context where State by social contract is required to provide safety, order, justice, and particular social services, what is the relationship between the State and individual in relations to law?

How can a State ensure the rule of law without interfering with the citizens’ individual freedom or their opportunity of self-realization?

In other words, what is the relationship between State and individual?

THE STATE, THE INDIVIDUAL AND RIGHTS

The Individual and the State in Conflict

It is a fundamental principle of our legal system that one is at liberty to do anything which is not prohibited by law.

To say that one may do that which is not prohibited does not tell us a great deal about what should be prohibited.

Determining when the state should exercise its power to limit the freedom of an individual is a political question.

It follows that each exercise of state power through the medium of the legal system must be evaluated according to political criteria.

John Stuart Mill proposed an attractively simple criterion for state intervention.

He argued that:

"The only purpose for which power can be rightly exercised over any member of a civilised community, against his will is to prevent harm to others. His own good, either physical or moral is not a sufficient warrant."

Do you think that Mill’s "Harm principle" provides adequate guidance for determining when state intervention is justified?

Consider the question with reference to these practical examples:

In your opinion, should the state be able to stop an adult person from:

1. Getting a tattoo even a tattoo on his or her face?
2. Body-piercing - from ears to navel to nipples to genitalia?
3. Having a homosexual relationship?
4. Mutilating one’s self ?
5. Accessing "hard core" pornography on the internet?
6. Having an abortion?
7. Taking one’s own life if one is suffering from a terminal illness?

8. Engaging in prostitution?
9. Agreeing with a business competitor to fix the price of goods sold by both businesses?
10. Taking non-prescription drugs, such as heroin or marijuana?

Does the "harm principle" permit the government to require:

1. Children to be immunised against childhood diseases?
2. Persons with an infectious disease to be quarantined?

One contentious aspect of the "harm principle" is the definition of what constitutes harm justifying state action.

If an individual’s actions injure the feelings of another, or lower his or her self-esteem, does the first person cause harm that justifies intervention?

What if the individual causes grave offence - by intentionally insulting the religious beliefs of another, for example?

Should there be a law against flag burning?

In American Booksellers Association v. Hudnut, a US court  warned that governments should (and in the United States, for constitutional reasons, government must) only exercise their powers to limit behaviour in cases where there is a risk of clear and immediate harm.

To adopt a lower standard would provide the State with more power and influence over our lives than is appropriate.

The Nature and Role of Rights

How do rights work?

Ronald Dworkin, a legal philosopher, suggests that rights are trumps.

If a person has a right, that right must be respected by the State even if doing so frustrates the State in the achievement of its legitimate political objectives.

In any dispute between the state’s interests and the rights of the individual, the individual’s rights must prevail - or at least be weighed in the balance.

Any discussion of rights soon runs into definitional disputes.

What are rights? Wesley Hohfeld suggested it was possible to define rights in a strict and a broad sense.

In the strict sense, a right gives rise to a corresponding legal duty or obligation on someone else to do something, presumably for the benefit of the first person.

Thus the right to be informed of the reasons for my arrest manifests itself in an obligation on the arresting officer to tell me why he or she is exercising the power of arrest.

A failure to comply with the obligation might result in a claim for wrongful arrest.

In the broad sense, sometimes we speak of a right to do something that does not give rise to a duty or obligation on anyone else.

For example, I might assert a right to walk in the park. But I am really talking about a liberty or privilege - I am at liberty to walk in the park in the sense that I am free to do so, but no one is under an obligation to assist me to that end.

Alternatively, I might exercise the right to give away or sell my goods. In that case, I am probably referring to a power the ability to dispose of the ownership claim.

Lastly, I might use the word right to describe an immunity - I have the right to occupy a property in the sense that no-one has the power to remove me.

Where Do Rights Come From?

There is a range of theories about the source of rights.

It would be impossible to address them all here, or even provide a comprehensive treatment of some of them.

Nonetheless, we will attempt to summarise some of the common arguments.

1. Rights’ are the product of natural law: Natural lawyers like John Finnis argue that certain rights exist in nature in the sense that they are self-evident.
2. Rights are the product of a social contract: Some theorists argue that society is based on an implied understanding between all of its members.

The implied agreement between us provides that we accept the authority of laws made in the understood way in return for certain guarantees - rights.

Locke and Rousseau refer to a social contract, although they have very different ideas about the content of the rights that are retained by the individual.

Another advocate of the social contract was Thomas Hobbes, who famously said that Life in the "state of nature", without an organised state, was "nasty, brutish and short“

3. Rights are the product of an agreement we didn’t make, but which we all would make if we thought about it.

John Rawls argues that we can identify rights because members of society who were placed behind a veil of ignorance which prevented them from knowing about their own position in society whether they would be rich or poor, black or white, educated or uneducated, etc – would all agree on certain basic rights as guarantees just in case they found themselves in a weak position in life.

If everyone would agree to the existence of rights in these circumstances, then the rights should be implemented.

Clearly, it could be seen that there is no consensus among the major schools of thought as to what rights an individual should be able to assert, and what effects those rights should have against the State.

Should the rights be absolute trumps, to use Dworkin’s language?

Are the rights narrow or broad?

Do they amount to an entitlement to have the State act positively, or are they entirely defensive in nature?

These questions are inextricably linked to one’s conception of the proper role of the State.

 

 

What is the proper role of the state?

Friedrich Hayek, an economist and political philosopher, suggested that one might use a triangle to represent the differing schools of thought about the role of government.

On one corner of the triangle lie the classic liberals, or Libertarians.

The Liberals believe that government has a very limited role to play.

They are prepared to let change - in social and economic relationships, and in civil arrangements - evolve.

Liberals are skeptical of the State’s wisdom and its power to do good, and they fear its power to bad things.

They can only accept government intervention where it is really necessary - most obviously, to prevent harm.

In the second comer lie the activists. They possess a more positive view of the role of the State.

Hayek said that socialists belonged in this corner, but other political creeds might be found here as well.

The activists believe that the state should use its power to pursue an agenda.

The state should seek to initiate and direct change, and promote social development.

In the third corner lie the conservatives. Conservatives are more skeptical than the activists about the use of State power to manage change, because they are more skeptical of change.

They are prepared to use State power to preserve institutions and existing states of social development.

They might be prepared to use State power to reinforce community values and institutions.

The content of rights and the role they play is determined to some extent by one’s conception of the role of the State.

Liberals aim to preserve freedom for the individual and do this in part by limiting government intervention.

Rights tend to be expressed negatively as defences against the exercise of state power, given that Liberals assume that little good will come of government action.

The rights take effect as absolutes: they may not be overridden by the State (unless it is necessary in order to prevent an even greater harm).

Activists might have a much broader concept of rights that reflects their more generous view of the role of the State.

Rights play a different role for the conservatives, and have different content. Because conservatives tend to be more skeptical about the positive role of the state they often have a narrower view of rights as protections.

But they might be less inclined to treat rights as trumps where some community values or institutions are at stake.

LAW AND QUESTION OF OBEDIENCE

Contemporary Western society places high value upon two ideals: individual liberty’ and the rule of law.

Cursory examination of these concepts seemingly reveals the clear instance of inevitably warring propositions.

If law is defined as restraint on human action and liberty as the absence of restraint, the concepts are inimical and conciliation impossible.

How can a State ensure the rule of law without interfering with the citizens’ individual freedom or their opportunity of self-realization?

If the rule of law can destroy human action, such a fact should be trumpeted to all concerned; before man surrenders his freedom for an end, he may wants to know

1. if the suggested action will achieve the end sought and, if so,
2. if the end is worth the price.

If the law will interfere with individual’s rights, why should such law be obeyed?

A number of legal philosophers have looked at this question

1. Coercion

Austin’s view: that a person is obliged by the command of the sovereign = the superior will punish the person if he/she does not obey.

It is the external force, the fear of punishment, which obliges a subject’s obedience.

Bentham was a utilitarian, who said that law should be about promoting the greatest good for the greatest number and that subjugation of individuals by law was for the good of the majority and could be justified and understood/analysed that way.

2. Social Contract and Consent Theories – Hobbes, Locke, Rousseau, Socrates and Rawls

Hobbes’ emphasis on the importance of a strong State

A science to the way man behaved - natural behaviour would tend towards chaos and strife unless acted upon and governed by the rules of social living. (eg like Newton’s theory of physics, that matter will behave in a certain uniform way unless acted upon).

That only a covenant, kept by the rule of the sword would keep man from falling back into his natural savage state.

Without rules, society would disintegrate and it would be every man for himself, against every other man and the result would be inevitably that the life of man would be solitary, poor, nasty, brutish and short.

Man banded together for mutual self-protection and in return, gave up some freedoms and agrees to be subject to the law.

He came up with the concept that society operates because of a social contract.

The social contract theory is based upon the key resources being required by people as being scarce (food, shelter, and the essentials of life).

Because of scarcity, there is competition. Each would be forced into a war against all others.

If there was no law/state set-up governing behaviour, it would be not possible to act properly simply from a sense of moral sentiment.

A State will not be an effective kerb upon the tendency of people to strike pre-emptively unless its authority is paramount. Therefore, to achieve a peaceful and stable society the power of the State must be absolute.

Once committed to the state, as a member of the state from which we receive benefits, we are obliged to obey the law.

3. Socrates

By living in a society and receiving benefits from that society one enters a quasi promise to abide by the laws of that society.

One is obliged, having taken the benefits, to accept the burdens. One of the burdens of living in a state is the burden of obedience to the law.

4. John Locke

Opposed authoritarianism by government or church or any authority other than the individual.

Thought man had a divine purpose and should not necessarily hand over decisions to any ruling body – natural law should be the paramount guide – institutions are flawed, corrupt, superstitious, not necessarily following natural law.

Asked how might the state have authority over us?

Nature gave us individual rights to life, health, liberty and possessions. These exist prior to any political organisation.

He thought that in the state of nature, moral law would generally be followed, some would break it and the law would be futile without enforcement, so everyone had a natural right to enforce the law, but that since individual enforcement might be excessive, inconvenient, difficult or inconsistent, it was useful to have a civil authority to resolves disputes and ensure peace.

The critical thing to ensure, according to Locke was that it was never intended to confer legislative power upon a civil authority which would permit it to violate our pre-existing rights.

5. Jean-Jacques Rousseau

Duty of all those who participate in the society to obey that which is for the greater good of the state, thus eroding any notion of individual’s rights.

Distinction between the general will which is direct toward the common good, and the will of all, which was just the aggregate of a bunch of individual, selfish wills.

6. Robert Nozick

Thought that individuals have rights which are so strong and far-reaching that there were limits to what a society could impose, and that the concept of a social contract was erroneous.

He gave the example of local authorities broadcasting music in the street which we enjoyed – we would nevertheless not agree that the local authority could then start billing us.

7. Natural Law

An individual has an obligation to disobey laws which are incompatible with higher moral principles.

Nuremberg Trials – the famous example. Natural law theory holds that certain rights exist independently of the legal system and are incapable of abolition by legislative act.

The Nuremberg trials imposed upon individuals a duty to disobey laws which are clearly recognisable as violating higher moral principles.

8. Positivism

Recognise as constitutionally valid laws as legally binding upon citizens even if these laws infringe upon human rights.

 

 

 

TOPIC 6
·         Fundamental Legal Conceptions as Applied to Reasoning

·         Introduction

·         Bentham And Classification of Legal Mandates

·         Liberty and Powers

·         Hohfeld’s Analysis of Jural Relations: The Exposition of Fundamental Legal Conceptions

INTRODUCTION

This topic deals with the internal structure of legal norms and the basic conceptions that are used in legal statements.

In other words, we look for building blocks of legal statements, the conceptions without which a law maker cannot make law.

Not every kind of statement makes law.

Assume that King X is the absolute ruler of a country.

The rule of recognition accepted by the country’s officials and citizens grants X the power to make law according to his will.

He simply has to express it and his will becomes law.

One morning on awaking, X says to no one in particular, “I hope the weather will be nice this morning so I can ride my horse”.

This is obviously not a law but a hope.

At breakfast he tells his Queen, “I wish my subjects will be well behaved and law abiding today”.

This is also not a law but simply a wish.

That afternoon he proclaims at the Royal Council: “It is henceforth the law that no trader shall sell a standard of loaf of bread for more than two thousand shillings”.

This is a law because it creates a legal duty and a legal right.

The trader has a duty not to sell a loaf for more than five thousand shillings and the customers have a right to receive a loaf by paying five thousand shillings or less.

Law informs people of what they may do, what they must do and, most importantly, what they must not do.

A person may make a will to bequeath an estate. The master of a ship must go to the aid of a vessel in distress. A motorist must not drive over the speed limit.

It is generally thought that norms work by creating rights and imposing duties.

Person A has a duty not to steal other persons’ property. Property owners have a right not to have their property stolen.

When I make a will, I instantly create rights in the beneficiaries to have my property conveyed to them on my death according to my instructions.

The executor then has a duty to convey the property to the beneficiaries according to my instructions.

Hohfeld argued that there is more to law than just rights and duties, and that legal rules can be understood accurately only if we discern the most basic legal categories or conceptions and the relations among them.

Consider the following five statements:

1. I have a right to be paid my wages under the contract of service.

2. I have a right to walk in my yard.
3. I have a right to leave my property to another by will.
4. I have a right not to be arrested without a warrant.
5. I have a right to be respected by my colleagues.

The word “right” is used in each of these sentences. A moment’s reflection reveals that the term “right” has a different meaning in each sentence.

The right to be paid wages according to a contract is a claim, which Hohfeld called a right in the strict sense.

The right to walk in one’s yard is a privilege or liberty.

The right to bequeath property by will is a power to bestow rights on others.

The right not to be arrested without a warrant is immunity.

What about the right to be respected by one’s fellows? It is not a legal right at all, but a moral claim.

Hohfeld argued that these distinctions have always been present in the law. However, they are also neglected from time to time by judges and commentators, causing error and confusion of the law.

Hohfeld was not the first to realise this, but he provided the most accurate  and compelling analysis of the fundamental legal conceptions that most clearly expose juristic errors.

It is useful, though, to start with the first systematic attempt in English jurisprudence to analyse and categorise basic legal conceptions – that of Jeremy Bentham.

BENTHAM AND CLASSIFICATION OF LEGAL MANDATES

Bentham noted that although the law is commonly thought of as the commands of a sovereign, it does not always take the form of a command to do or refrain from doing some acts.

Hence, he substituted the word ‘mandate’ for ‘command’ in explaining the different kinds of law that a person encounters in a society.

Bentham argued that there are only four kinds of mandates that the law can prescribe:

1. Command
2. Non-command
3. Prohibition, and
4. Permission

He offered the following four mandates as illustration:

1. Every householder shall carry arms (command).
2. No householder shall carry arms (prohibition).
3. Any householder may forbear to carry .arms (non-command)
4. Any householder may carry arms (permission).

Mandates (1) and (2) create duties: the duty to carry arms and the duty not to carry arms.

At any given time it must be one or the other duty, but not both.

I cannot have a duty to carry arms and also a duty not to carry arms.

Consider mandate (3). It means one of the following two positions:

a)      There was in force mandate (1) requiring every householder to carry arms and now, by virtue of mandate (3), householders are exempt from carrying arms. Therefore mandate (3) repeals mandate (1).

b)      Alternatively, it may mean there was no previous mandate requiring a householder to carry arms, and mandate (3) simply declares and confirms the law as it stood before.

Consider now mandate (4). This is the reverse situation. It means one of the following:

There was in force mandate (2) prohibiting householders from carrying arms and now, by virtue of mandate (4), householders are allowed to carry arms. Therefore mandate (4) repeals mandate (2).

Alternatively, it may mean there was no previous mandate prohibiting householders from carrying arms, and mandate (4) simply declares and confirms the law as it stood.

Whichever is the case, it is clear that mandates (1) and (2) impose duties either to carry or not carry arms, and mandates (3) and (4) confer liberties either to carry or not carry arms.

LIBERTIES AND POWERS

The most fundamental principle of law in the common law world – indeed, the starting point of the law – is simply this. A person may do any act that the law does not forbid and may refrain from doing any act that the law does not require to be done.

In other words, the natural liberty of a person is limited only by valid law.

The corollary of this principle is that no person or authority may interfere with the liberty of a person except by authority of law.

Bentham identified two kinds of liberty.

Liberty 1: Where liberty does not affect any other person

Bentham called these self-regarding liberties. I have a liberty to walk in my yard.

The exercise of this liberty does not violate any other person’s rights.

My neigbour’s rights are not affected, and as Hohfeld later stated, my neighbor (and everyone else) has no-right that I not walk in my yard.

Remember, though that we have no unrestricted liberty even within our homes.

My liberty to play music on my sound system in my house is limited by the law of nuisance that protects my neighbor’s entitlement to a quiet night’s rest. Hence I have no liberty to play my music as loudly as I wish at all times.

Liberty 2 (Power): Where liberty affects the rights of another

Some laws authorize persons to do acts that affect the rights of others.

The criminal law authorizes a person to inflict harm on another in self-defence. A police officer with a warrant may detain a suspect. A judge may summon a witness.

In each case a person’s right or liberty is interfered with by authority of law.

Bentham wrote: “When the acts you are left to perform are such whereby the interests of other individuals is (sic) liable to be affected, you are thereby said to have a power over those individuals”.

Power is therefore a liberty whereby the power holder can change the legal condition of another.

Corroborated and Uncorroborated Liberties and Powers

Bentham realized that some liberties will not exist without some form of legal protection. He called such protection corroboration.

Consider this case:

I have the liberty to walk in the public park. Now this liberty is negated if the park warden prevents me from entering the park.

If the park warden lets me in, I would also like to walk freely without the fear of being waylaid and robbed.

The law protects my liberty to walk in the public park by imposing duties on others.

Duties carry corresponding rights (try to think of a duty that is not owed to someone).

The park warden has a duty not to prevent my entry. (therefore I have a right that the park warden let me enter).

Other persons have duties, cast by the criminal law (and tort law), not to harm or impede me in my activity. (Therefore I have rights that others not harm me.)

Duty-right relations support or corroborate my liberty to walk in the public park.

Although in many cases it is practically difficult to enjoy a liberty without them, corroborating rights are not theoretically necessary for a liberty to exist.

There are many liberties that can practically exist without direct or immediate protection of the law.

Bentham called these uncorroborated liberties.

Example: imagine that you have an annoyingly inquisitive neighbor. He is often looking over the fence to see what you are doing, who visits you, what you wear to work, when you return at night and with whom.

Your neigbour breaks no law, which means that he has a liberty to keep looking. In Hohfeld’s terminology you have “no-right” that he does not look over the fence.

Equally, you have no duty not to prevent him from observing your activities by any lawful means.

The neighbor cannot complain if you erect a screen on your property to shut off his view. Remember, though, that you can only use lawful means.

It may be cheaper for you to make him stop his habit by threatening violence than by building a screen.

The trouble is that you have a duty under the law not to threaten violence. However, this duty does not directly correlate to his liberty to look. It correlate to his right not to be threatened.

Bentham thought that powers, being a special case of liberties, may also be corroborated or uncorroborated.

He considered three scenarios:

1. The law does not assist in the exercise of power

The power is uncorroborated in this case. The common law allows a property owner to use self-house to abate a nuisance on a neighbouring property.

Thus I can enter the vacant land of my neighbor and clear it of rotten rubbish that is threatening my health.

However, there is no duty on the part of the neighbor to assist me, or even not to resist me. He may not open the gate to let me enter. I may not have the physical resources to remove the rubbish.

My power in this case depends on my own capacities. I can, of course, seek a court order against the neighbor, but then I am not exercising my own power but invoking the court’s power.

2. Law imposes a duty not to oppose the exercise of power

Here we have a weakly corroborated power.

Assume that the law grants power to the town council to enter the above described land and abate the nuisance.

In this case the property owner has a duty not to oppose the council’s actions, but has no positive duty to assist it.

3. Law imposes a duty not to oppose and also a positive duty to assist.

Some legal powers are accompanied by duties imposed on citizens to assist the power holder in exercising the power.

Bentham described this as the highest and most perfect degree of power.

An example is found in the common law rule that makes it an offence to refuse assistance to a constable in the execution of his duty to maintain or restore peace.

The power to ask for assistance has its origin in the ancient practice of “hue and cry”, which was confirmed by the statute of Westminster.

The statute required all able bodied men to join the hue and cry in pursuit of a fleeing criminal. Most States in the US have long standing statutory penalties for refusing to assist police in apprehending felons.

Bentham did not work out all the implications of his analysis of the elements of law. it was left to Hohfeld’s remarkable essay to identify all the fundamental legal conceptions and their inter-relationships, and thus reveal the logical structure of legal statements.

HOHFELD’S ANALYSIS OF JURAL RELATIONS: THE EXPOSITION OF FUNDAMENTAL LEGAL CONCEPTIONS

Hohfeld studied chemistry before turning to law, and brought to his legal study the chemist’s instinct for breaking down compounds into their molecules and atoms.

Hohfeld was gripped by the classic puzzles in legal theory about rights in rem and rights in personamin relation to equitable interests.

A right in rem is traditionally thought to exist with respect to a thing and be applicable against the world at large, whereas a right in personamis thought to exist in relation to particular individuals.

The rights I have over my house and land are rights in rem that I assert against the world at large, and my right to be paid the agreed salary is a right in personamthat I have against my employer, the University.

What then, is the beneficiary’s right under a trust?

Trustee T holds a house in trust for beneficiary B, who is a minor until he reaches majority.

Does B have a right in rem in relation to the house, or a right in personamagainst T?

Most writers say that B has only a right in personam, some say that it is a right sui generis (a unique type by itself) and still others can’t make up their minds.

Hohfeld realized that these and similar confusions resulted from a misunderstanding of the fundamentals of legal conceptions and jural relations.

Once these confusions are cleared it becomes plain that what we call rights in rem, for instance, are in fact separate rights that a person has in relation to every other person individually and severally.

Hohfeld argued that other artificial dichotomies and constructs will also dissolve when the true meaning of legal conceptions and relations is understood.

The most serious impediment to clear thinking and true solution of all legal problems, Hohfeld argued, was “the express or tacit assumption that all legal relations can be reduced to ‘rights’ and ‘duties’ and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trust, options, escrows, ‘future’ interests, corporate interests etc.”

Hohfeld distinguished four different conceptions that lawyers tend to lump under the term ‘right’.

He aimed to disentangle and clarify the four conceptions.

The most effective way of doing this, Hohfeld concluded, was to construct a logical system connecting the four conceptions to their correlatives and opposites.

He thought that such a system would display the sum total of the fundamental legal conceptions. 

Hohfeld broke the term ‘right’ into four distinct basic conceptions:

Ø  Claim rights or right in the strict sense (right).

Ø  Privilege or liberty – Hohfeld preferred the term ‘privilege’ to ‘liberty’ because he felt that ‘liberty’ had wider connotations. (probably ‘liberty’ is more precise (liberty)).

Ø  Power – like Bentham, Hohfeld regarded power as a special case of liberty. He considered this distinction to be critical for accurate legal thinking

Ø  Immunity – immunity is a special case of right and, again, it is important to distinguish the two for clear understanding of the law.

Each of these conceptions makes sense only when we take account of their correlatives and opposites.

Jural correlatives

Each of the conceptions ‘right’, ‘liberty’, ‘power’, and immunity has an indispensable correlative.

The jural correlative can be technically defined as follows:

In any legal relation between two parties concerning a single act or omission, the presence of one conception in one party entails the presence of the correlative in the other party.

Thus, if A has a right that B pays him UGX 10,000 under the contract, B has a duty to pay A UGX 10,000.

The vertical arrows represent the correlatives.

Jural Opposites

Each of the conceptions ‘right’, ‘liberty’, ‘power’, and ‘immunity’ has a jural opposite.

The technical definition of jural opposite is as follows:

In any legal relation between two parties concerning a single act or omission, the presence of one conception in one party means the absence of the jural opposite in that party.

Thus A, who has a right that B pays him UGX 10,000, does not also have a no-right in that regard. B, who has a duty pay UGX 10,000 does not have a liberty not to pay.

This follows from the law of non-contradiction.

As Aristotle stated: “It is impossible for the same man to suppose that the same thing is and is not. One cannot say of something that it is and that it is not in the same respect and at the same time”.

Thus, Socrates lives, or he does not. He cannot both live and not live at the same instant, although he can live in one instant and be dead the next. The Kangaroo is a mammal, or it is not. Jupiter is a planet, or it is not. A has a right or no-right, but not both. B has a duty or no duty (which is liberty), but not both.

The diagonal arrows represent the jural opposites.

Jural Contradictories

Hohfeld identified only the jural correlatives and opposites. Glanville Williams perceived a third set of jural relations, which he termed contradictories.

The technical definition of contradictories is as follows:

In any legal relation between two parties concerning a single act or omission, the presence of one conception in one party means the absence of the contradictory in the other party.

Thus, if A has a right that B pays him UGX 10,000, B cannot have a liberty not to pay A because B has a duty to pay A. the jural contradictory follows logically from the jural opposite.

The horizontal arrows represent the jural contradictories.

The Interconnectedness of Legal Conceptions

Hohfeld’s analysis shows that ‘right’, ‘duty’, ‘liberty’, and ‘no-right’ are connected in a fundamental way with each other. The existence of one brings about the existence of the others.

The conceptions ‘power’, ‘liability’, ‘immunity’, and ‘disability’ are similarly connected.

The totality of these connections is illustrated below. The vertical arrows show the correlatives, diagonal arrows indicate the opposites and horizontal arrows the contradictories.

1. Consider Box 1: A has a right under the contract that B pays him UGX 10,000

Correlative: A has a right that B pays him UGX 10,000 and B has a duty to pay UGX 10,000

Opposite: Since A has a right to be paid UGX 10,000, A cannot have no-right to be paid.

Contradictory: Since A has a right to be paid UGX 10,000, B cannot have a liberty not to pay.

2. Consider Box 2: A has power to arrest B

Correlative: A has power to arrest B and B is liable to be arrested by A.

Opposite: Since A has power to arrest, A cannot have disability to arrest.

Contradictory: Since A has power to arrest B, B has no immunity from arrest

Each legal relation is a relation between two individuals concerning a single act or omission

Like the engineer who disassembles a machine to learn how it works, Hohfeld aimed to break down laws into their basic elements to see how the law actually works.

He found that the law works through legal relations between individuals in relation to single actions or omissions.

The term individual include corporate entities such as trading companies, government agencies and the legislature itself.

At one level there are Hohfeldian relations within each corporate entity.

Directors, managers and shareholders of a company have rights and owe duties to one another. Individual members of a parliament have similar rights, duties, powers and immunities. At another level these corporate bodies act as individual corporate entities.

There are important implications of the basic premise of the Hohfeldian analysis.

First, a jural relation exists between two individuals. It is never between a person and a thing. I have no jural relation with my motor car, although I claim to own it.

I have jural relations with A,B,C and every other individual in the world with respect to my motor car. No person may take it without my permission.

In orthodox theory, if I am the owner of a Blackacre, I am regarded as having a right in rem against the whole world with respect to Blackacre.

If I sell Blackacre, the purchaser will gain the same right in rem against the world.

It is commonly thought for this reason that a right in rem is not personal, but is a right that attaches to the land. In one sense it does.

Yet what is the actual effect of having a right in rem?

It is that the owner has a right in relation to every other individual in the world with respect to a thing.

In other words, the owner has millions of separate rights in personamagainst each and every individual in the world.

He has a right that A does not trespass, B does not trespass, C does not trespass, and so on indefinitely.

According to Sir William Markby “if we attempt to translate the phrase (in rem) literally, and get it into our heads that a thing, because rights exist in respect of it, becomes a sort of juristic person, and liable to duties, we shall get into endless confusion.”

Second, ownership of a thing is generally described as a bundle of entitlements over the thing. Hohfeld’s system unbundles the entitlements.

My right that A, B, C, and all others not enter Blackacre without my permission is one entitlement. My right to be free of trespass is obviously helpful to my liberty to enjoy Blackacre, but they are nevertheless separate entitlements.

Third, it is important to keep in mind that the same set of facts may give rise to several jural relations.

The failure to do so leads to common error.

A is walking in the public park and is obstructed by B, who physically restrains him. Two distinct jural relations are at work simultaneously:

1. A has liberty to walk in the public park and B has no-right that A does not walk in the public park.
2. A has right not to be physically restrained by B and B has a duty not to physically restrain A.

Fourth, it is critical that we recognize that a dispute between two parties can give rise to distinct and successive legal relations.

Austin identified a two-tier system of rights: a primary right and a secondary right.

A primary right is one that a seller initially has under the law. A seller has a primary right to be paid the price of goods under a contract of sale.

If not paid, the seller gains secondary remedial rights to recover the price or to receive damages.

Peter Birks identified a third level of rights: namely, the rights that the court creates in giving judgment.

The judgment creates a new right in place of the primary right. The plaintiff may have claimed UGX 10,000,000 in damages but may receive UGX 9,000,000 in judgment. He now has a right to receive the latter sum.

To take the contractual example, on the primary level are the rights born of the contract; on the secondary level are the remedial rights born of the breach; and at the tertiary level is the right born of the judgment itself, which is the right enforced by the process of execution.

Right – Duty Correlation

A person has a right only because some other person has a duty that correlates to that right. One cannot exist without the other. They represent the two aspects of one relation, just as the ‘heads’ and ‘tails’ represent two side of a coin.

The baker has a right to be paid for the loaf that the customer buys because the customer has a duty to pay for the loaf.

The factory owner has a duty to not pollute the neighbor’s land because the neighbor has a right that the factory owner does not pollute his land.

A highwayman has a duty not to rob the traveler because the traveler has a right not to be robbed.

Liberty – No-right Correlation

It is noticeable that a liberty does not carry a correlative duty on the part of another.

A, as owner of Blackacre, has liberty to walk on it. It means that other have no-right that A does not walk on Balckacre.

Others of course have duties not to interfere with A’s liberty. B, for example has a duty not to prevent A from entering Blackacre and thus prevent him walking on it.

The critical point is that B’s duty correlates to A’s right not to be obstructed from walking on Blackacre, and not to A’s liberty to walk on Blackacre.

Power – Liability Correlation

As Bentham previously explained, power is a special kind of liberty.

The exercise of power creates new legal relations by imposing duties and creating rights in others. A simple liberty has no such effect.

A’s exercise of his liberty to walk in the public park does not create B’s duty not to obstruct A. B always had the duty not to obstruct A if he chose to walk in the park.

In contrast, the police officer’s arrest of the suspect brings about a restriction of the suspect’s legal liberty to move as he pleases.

The arresting police officer exercises a power, not a simple liberty. The person to whom a lawful power is applied is said to have a liability.

The Special Meaning of Liability

Lawyers understand liability in the sense of a legal penalty or disadvantage.

A person who commits a serious crime is liable to be sentenced to imprisonment.

A factory owner who causes harm to a neighbor’s crop is liable to pay damages.

Just as power is a special kind of liberty, liability is a special kind of duty that flows from the exercise of power.

However, Hohfeld used the term liability in an expanded sense.

A person may have a Hohfeldian liability to receive a benefit.

The maker of a last will exercises power to bequeath his estate as directed in the will. The beneficiaries have liability (in the Hohfeldian sense) to receive the benefits.

The minister has power to grant a license to fish in the lake. The fisherman has liability to be granted the license to fish in the lake.

Hohfeld cited a number of US decisions where judges have used the term liability in this broad sense.

Change of Legal Relations by Natural Causes and by the Exercise of Legal Powers

Legal power must not be confused with physical power.

Hohfeld was aware that legal rights and duties can change as a result of two kinds of events – those that do not involve volitional acts of human beings, and those that do.

As regards the second class of cases, the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem.

The following examples will clarify the distinction:

1. A ship is damaged in the high seas by the physical force of a storm and is in danger of sinking with all on board.

The master of every passing ship has a duty to go to the assistance of the ship in distress.

The seafarers in the ship in distress (and its owner) have a correlative right that those able to help them provide help.

The storm did not create new rights and duties but activated rights and duties that existed in law.

2. The law prohibits a person from possessing a firearm except under the authority of a license granted by the minister.

The minister grants farmer X a license to possess a rifle. The minister exercised a power in conferring a new liberty on X to posses a rifle. Previously X had a duty to not have a firearm in his possession. The minister’s decision created new rights and duties.

Do Unlawful Acts Involve the Exercise of Hohfeldian Power?

C uses force to rob D of the money he is carrying.

C had a duty not to rob D. however C, by his exercise of physical power, brought about new legal rights and duties.

Consequently, D has a right that C returns the money and D has a correlative duty to return the money.

Can we say that D was actually exercising a Hohfeldianpower?

The answer is ‘No’.

Hohfeld did not directly address this puzzle, but his answer is easily derived from the logic of his scheme.

It is clear that Hohfeld limited the conception of power to the capacity to change legally the existing legal relations and entitlements.

He noted, with respect to power, that ‘the nearest synonym for any ordinary case seems to be [legal] ability’.

This is necessary conclusion from the Hohfeld analysis.

Remember that a power is a type of liberty. The opposite of the libertyto do an act is the duty not to do the act.

It follows from the law of non-contradiction. That C cannot have liberty (power) to do something and also a duty not to do it.

A person has duty x, or does not have duty x, at the same time in relation to the same act or omission.

The robber C had a duty not to rob D. it was not his physical power that brought about the new legal relations, but his breach of duty.

Power therefore must be understood as the legal capacity of a human agent to effect a change in legal relations.

This means power is the legal competence to confer new rights and impose new duties.

Yet there are other competencies that are usually not identified as powers.

People give their friends and relatives gifts. As Hohfeld pointed out, the simple act of gift giving is an exercise of power.

When a person gives a friend a gift of a book, he conveys the property in the book from himself to the friend (in legal terms, the transfer of property occurs by the abandonment of the property by the owner and its appropriation by the recipient).

Similarly, the making of contracts involves the exercise of powers.

X posts a letter to Y in which he offers to sell his car for UGX 10,000,000. X thereby creates a legal power in Y to create a binding contract that imposes a duty on X to deliver the car on the payment of UGX 10,000,000.

X initial offer is itself an exercise of power, because it has created a new legal relation between X and Y that did not exist before. (The making of the offer is the exercise of power to confer a power.)

Y’s power will terminate if X revokes the offer before it is accepted. Or it might expire after a reasonable time.

The act of revocation of the offer is also an exercise of power, because it terminates Y’s power to complete the contract.

 

 

 

  

TOPIC 7

POPULAR JUSTICE

THE CONCEPT

This involves the formal participation of people or community in the administration of justice.

Traditionally, the system was predominant in Africa as a grassroots’ mechanism for justice delivery under customary law before the formal introduction of courts system.

The system was equally practiced in the West in the form of Jury System and the use of Assessors in criminal trials in some commonwealth jurisdictions and the use of Justice of the Peace System (use of lay judges over minor offences where no paid magistrate exist).

The major distinction however between the traditional system in Africa and its practice in the West is the degree of formality attached.

Traditionally in African society, the system primarily involves community structures in the form of clan heads, council of elders, and age sets.

Additionally, the system was characterized by informality in the process of resolution of disputes and formal participation of the community in the process.

The main aim of dispute resolution in the traditional form was the restitution of equilibrium in society and upholding the dignity, worth and responsibility of members of the society through the medium of reconciliation.

In the Western world, it operates within the framework of regular courts.

With the formal introduction of mainstream courts, its relevance in the traditional African society wanes.

Its revival in the recent years in Africa was occasioned by:

1. Delay in the delivery of justice especially after conflicts by the mainstream courts, or the mainstream courts are elitist and irrelevant to the existing conditions or their lack of initiative and necessary social consciousness to respond to the demand of the populace.

2. The need for reconciliation of different sectors of the society which was found lacking in the mainstream courts.

The involvement of lay persons in the administration of justice is to guide or direct the court on particular attitudes, views, and conceptions regarding particular rights, claims or responsibilities relating to the particular community, race or people.

In State v. Vries (CR 32.96) [1996] NAHC 20 (10 September 1996), a Namibian High Court took cognizance of the accused assertion of the value attached to various animals in his community in order to reduce the sentence laid down by court.

The re-invention of the traditional form of dispute resolution and dispensation of justice have resulted into modern community courts, whose membership is often drawn from the community and are required to deliver community based justice.

The so-called popular courts may emerged in two situations:

1. As part of the consensus in the community on the need for a grassroots’ mechanism for justice, or
2. In the most modern cases be provided for by statute which equally provides for their jurisdiction, composition etc.

Examples of modern popular courts:

1. The Local Council Courts (Uganda)
2. The Amnesty Commission (Uganda)
3. The Gacaca Courts (Rwanda)
4. Truth and Reconciliation Commission (South Africa)

For legal basis of the concept of popular justice in Uganda see the following:

1. Art. 2 of the Constitution
2. Art. 126 of the Constitution
3. Osotraco v. Attorney-General (Court of Appeal Civil Application No. 32, 2003)

For legal basis on the participation of people in the administration of justice, see:

Art. 127 of the Constitution

Objectives 2, 5 and 10 of the Objective Principles of State Policy (Constitution).

The main features of popular justice whether being administered by mainstream courts or popular community courts is the involvement of people or communities in the administration of justice.

Major Attributes/Characteristics of Popular Courts

1. The source of normative rules applied is primarily non-statutory in the form of custom. In the modern day however and where the popular courts are a creation of statute, hence the norms and the jurisdiction of the courts are specified. This sometimes is not respected by the courts.
2. Dispensation of justice is grounded on the popular participation and consultation of the community.

The courts usually consist of community members, the community is involved in the proceedings and the sitting is normally convenient for most members of the community to participate.

3. Informal procedure adopted
4. The aim of popular justice is the restoration of societal equilibrium and emphasis is on reconciliation and compensation as opposed to retribution (revenge or punishment).

Reconciliation and compensation are underpinned by admission of guilt and request for forgiveness by the offender and acceptance by the community.

Role of Community Participation

1. Direct the courts on particular attitudes, views and conceptions regarding particular rights, claims or responsibilities pertaining to particular community, race or people;
2. Enable the community to own the decision taken by court as their own having taken part in arriving at it which helps in addressing the psychological aspects of crime;
3. It helps in the community healing process especially the crime has been perpetrated in large scale or against a particular community;

4. Plays a role in addressing fundamental causes of crime. In administering justice the community can determine the causes of crime or dispute and enunciate measures of eradicating such causes to prevent future occurrence.

Problems Associated with Community Participation

1. If participation is not controlled it can degenerate into mob justice;
2. The possibility of pinpointing the accused who may end up being arbitrary punished thereby defeating the purpose of reconciliation;
3. Impartiality and independence of the community courts can be a challenge.

Role of Reconciliation

Reconciliation entails making peace between the parties to a dispute.

1. It facilitates rehabilitation of the convicts and their restitution into the society;
2. This restorative nature of the process leads to unity, peace and tranquility in society through for example the admission of guilt or error.

Problems Associated with Reconciliation

1. Emphasis on reconciliation has the tendency of ignoring rights and freedoms in the dispensation of justice in the community;

2. Risk of promoting a culture of impunity. By not punishing the offender he may be encourage to commit further crime.

EXAMPLES OF POPULAR COURTS AND THEIR OPERATION

1. The Local Council Courts in Uganda
2. The Gacaca in Rwanda

THE LOCAL COUNCIL COURTS

Origins of the Courts

Traceable to the National Resistance Movement/Army bush war (1980 – 1986).

They were considered necessary in order to put some form of governance and administrative structures in the captured areas to foster dispute resolution and to deal with emerging local crises in an expeditious and democratic manner.

To operationalize the objective of instituting a system of popular democracy and decent living, the NRM/A upon capturing power set out the Resistance Committee of Courts as an alternative system of dispensing justice established by a Statute

This was a system of popular participation in governance embodied in the councils at the village, parish, sub-county, county to district level.

The councils (from village to district level) exercised powers that were a fusion of political, legislative, executive, administrative and judicial functions.

The judicial functions of the councils were derived from the Resistance Councils and Committees (Judicial Powers ) Statute now repealed by the Local Council Courts Act No. 13, 2006.

Legal Basis of the Local Council Courts

Art. 126 of the Constitution – judicial power is derived from the people and shall be exercised in conformity with the value, norms and aspirations of the people.

Art. 126(2) of the Constitution – judicial powers shall be exercised inter alia to promote reconciliation between the parties to the conflict.

Art. 127 of the Constitution – Parliament shall enact laws for the participation of people in the administration of justice.

See also Objectives 2, 5 and 10 of the Constitution.

 

Operation of the Local Council Courts

The Local Council Courts Act which repealed the Resistance Committee (Judicial Powers) Statute provides for the scope and contents of Local Council Courts including composition, jurisdiction, remedies and appeal.

The Act establishes as courts all Local Councils at the village, parish, town division and sub-county level.

In terms of composition, at the village and parish levels, the courts are consisted of all members of executive committee of the village or parish (see S. 4(1) of the Act)

At the town, division and sub-county level - five members appointed by the town council, division council or sub-county level upon recommendation of the respective executive committee (see S. 4(2) of the Act).

At least two must be women (see S. 4 (3) of the Act)

The qualifications required before appointment as member at town, division or sub-county level are (S. 5 of the Act):

1. Being resident of the area;
2. High moral character and proven integrity;
3. Knowledgeable in the local language and in English;
4. Not a member of the Parliament or a statutory body; and
5. Not a member of another Local Council Court.

S. 8(4) provided for the quorum:

a)      in the case of a village or parish, five members including the person presiding, two of whom shall be women; and

b)      in the case of a town, division or sub-county, three members including the person presiding, one of whom shall be a woman

The quorum is to be maintained throughout the sitting and where it is lost for any reason, the court shall adjourn to another time (see S. 8(5)(6) of the Act).

The court is to be presided over by the Chairperson or in his absence, Vice Chairperson.

The sitting of the court is to be as often as possible as the business of the court requires for the speedy discharge of cases.

Determination of issues shall be by consensus or by majority of votes in the absence of consensus through a show of hand. (see S. 8 (7) of the Act).

The Chairperson has a casting vote (S. 8(8).

The courts are to be guided by the principles of natural justice (see S. 24), witnesses, their examination and tendering of evidence to be allowed.

Cases are to be heard expeditiously and without undue regard to technical rules of evidence or procedure. (see S. 23 of the Act).

Territorial jurisdiction is limited to the Council while pecuniary jurisdiction is limited to UGX 20,000 for matters specified in the 2^nd Schedule of the Act.

These are cases concerning debts, contracts, assault, battery, conversion of property, damage to property and trespass. (see Second Schedule).

Other legal matters which the courts have jurisdiction are matters of a customary nature concerning land, marital status of women, paternity of children, identity of customary heirs, impregnation of or elopement with a girl under 18 years and customary bailment (see Third Schedule).

A party unable to appear due to mental or physical incapacity may nominate another to represent him upon satisfaction of the court however an advocate is not allowed except on infringement of bye-laws (see S. 16)

The courts may order one or more of the following: reconciliation; declaration; compensation; restitution; costs; apology; or attachment and sale; a fine, community service or any other penalty in the case of infringement of a bye-law or Ordinance.

Appeals lie from LC I to III and to Chief Magistrate.

For problems associated with the operation of courts see Key Issues in Jurisprudence pp. 191-2.

See also the following cases:

YonaMutala v. Patrick Nantwaluma, Civil Appeal No. 32, 1989.

Kibbi v. Rwabutomize, Civil Appeal No. MMB 113/91

JaffariMukasa v. Sekanyi and Brothers, Civil Appeal No. MMB 81/80

Sebastiano Magaya v. SematiyaNsanja, Civil Appeal No. 43/1989

THE GACACA COURTS

The Origins of the Courts

Gacaca means open air debate.

These courts were indigenous to Rwandan society and were common in precolonial Rwanda.

It is a system where feuding clans assemble to discuss problems and resolve differences amicably with elders serving as judges.

It was also composed of courts that settled conflicts between families or communities based on domestic concerns such as violence, theft, destruction of property, separation between husband and wife and other smaller matters.

Rwanda had experienced series of genocides and massacres in history. These occurred in 1959, 1963, 1964, 1973, 1990, 1992, 1993 and one of the worst in 1994.

The genocides and massacres resulted from a number of factors including:

1. Harsh colonial policies which sought to divide Rwanda along ethnic lines;

2. Discriminatory and sectarian policies pursued by post independence governments reinforcing division created by colonialism
3. A culture of impunity and violence created by successive governments.

4. Community disintegration and suspicion between the Hutu, Tutsi and Twa communities due to divisive policies and State ideology which sought to categorise the communities as ethnically and racially different.

After the genocide the challenges and practical problems were how justice was to be rendered to the victims.

The challenges were:

1. Capacity of the Judiciary to dispense justice was weakened resulting from the genocide as members and officers of the court equally suffered the effects of the genocide.

2. The possibility of creating an increase in the number of genocide inmates and suspects thereby creating administrative strain on the judicial system.
3. The weakness of the classical justice system in addressing the psychological aspects of the genocide (negative mass mobilization and ideological manipulation).

4. The legal complexities in the classical justice system which made it difficult for the ordinary person to participate whereas participation of the community is necessary for healing process to take place.

4. The non-reconciliatory nature of the classical justice system which does not holistically address the rehabilitation of convicts or the fundamental causes of the crime.

These challenges necessitated the incorporation of Gacaca system into the Constitution to address the weakness of and complement the classical justice system, to foster unity and create basis for future reconciliation.

 

 

The Legal Basis

1. The Organic Law No. 8 of 30^th August, 1996 which provided for the jurisdiction of the courts to prosecute genocide and crimes against humanity.

2. The Fundamental Law of the Republic; The Arusha Peace Agreement of 1993.
3. The Law Decree No. 9 of 7^th July, 1980 relating to the organizational and jurisdictional competence of the courts.
4. The Law Decree No. 21/77 of 18^th August, 1977.

Operation of the Courts

The courts operates in the manner of system of chiefs.

In this system, the accused stand trial before a panel of judges they have chosen from their own community and victims are given chance to confront their assailants in public.

The central issue is not punishment but the court are intended to serve as cleansing mechanism for the removal of genocide from peoples’ subconscious mind and to emphasize forgiveness and reconciliation.

The courts are allowed to lessen sentences for those who admit their crimes and the sentences can further be halved if the convict agrees to do community service.

Concerns/Criticisms Against the Courts

1. No legal representation is allowed including on serious issues such as genocide and murder;
2. Judges may have no proper legal training or may have personal interest in the verdict affecting independence and impartiality of the courts;

3. It will be counter-productive if those who preside over the courts are not scrupulously fair and don’t enjoy the trust and respect of all or if the process is used to score political points or to marginalize one group or to settle scores etc.

 

 

 

 

 TOPIC 8

RIGHTS AND DUTIES

RIGHT

Introduction

Right and duties are the very important element of law.

The term ‘Right’ has various meanings such as correct, opposite of left, opposite of wrong, fair, just and such like other expression etc.

But in legal sense a right is a legally permissible and protected action and interest of a man, group or state.

Definition

According to Austin:- “Right is a standard of permitted action within a certain sphere”. 

He further define right as a party has a right when others are bounds to or obliged by law to do or not to do any act.

According to Salmond: “It is an interest recognized and protected by the rule of justice/law.”

According to Gray:- “Right is not an interest itself but it is the means by which the enjoyment of an interest is secure.”

According to Prof. Allen:- “The essence of right not a legal guarantee in itself but a legally guaranteed power to realized an interest.”

Elements of Right

1. Subject:- The subject of a right is concerned with the person, legal and artificial or a group who legally is entitled to seek the privilege and benefit of against the other. In other words the subject is that the person whom the right is vest.

2. Content:- This is the subject matter of the right along-with the nature and limits of that right.  
3. The Person of Incidence:- It means that the person upon whom falls the correlative duty.
4. Object:- The object of the right may be material or immaterial, determinate or indeterminate.

Characteristics of Rights

1. Right is a general or specific type of claim, interest or such like expression of the people in a State.
2. Right is duly recognized and approved by the State through its agencies.

3. A legal right is expressed as having deep correlation with a corresponding duty, liability or disability on the part of those against whom such right is conferred.
4. A right may have its independent existence and type of assemblies with other rights.
5. Basic philosophy or the fundamental concept of right remains permanent but with the time being it is subject to incorporating the allied change in it.
6. The realization and scope of a legal right depends upon the type of society and the nature of interest.

Theories of Rights

There are two main theories of legal right:-

1. Will Theory:-  The will theory says that the purpose of law is to grant the individual self expression or positive declaration. Therefore right emerges from the human will. The definition of right given by Austin and Holland,  “that the will is the main elements of a right.” Pollock says, “ that right is in terms of will.”
2. The Interest Theory:- Interest is the basis of right. A great German jurist defines legal right as, “A legally protected Interest.” According to him the basis of right is “Interest” and not  “will”. 

The definition of law is in term of  ‘purpose’  that law has always a purpose. In case of right the purpose of law is to protect certain interest and not the wills or the assertions of individuals. These interests are not created by the State but they exist in the life of the community itself.

Types of Rights

1. Primary and Secondary Right: They are known by Antecedent and Remedial rights names also.
2. Perfect and Imperfect Right

3. Negative and Positive Right:- Positive means related to duty whereas negative means not related to duty.

4. Right in Rem &Personam
5. Right in Re propria and Right in Re aliena
6. Vested and Contingent Right
7. Proprietary and Personal Right
8. Equitable and Legal Right

DUTY

Introduction

The term duty may be used in various form as an obligation, as responsibility and accountability.

Some scholars have defined Duty as follows:-

According to Gray - Duty is the act of or forbearance which an organized society used to impose on people through State in order to protect the legal right of other. 

According to Roscoe Pound - Duty is the Predicament of person whose act are liable to be control with the assistance of the State. 

According to Hohfeld - Duty is the correlative of Right.

Classification of Duties:

Duty has been classified into two categories:

1.  Positive and Negative Duty:- A positive duty implies some act on the part of person on whom it is imposed. Negative duty implies some forbearance on the part of the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that which exists per se and independent of other duty. A secondary duty is that duty whose purpose to enforce some other duty.

Essentials of Duty

1. It may be dependent and independent.
2. It consists of an obligation on the part of someone and confer a privilege upon another.
3. The concept of duty is affirmed and protected by the law of the land where it exist.
4. The concept of duties is a changing process which arises from time to time, place to place and circumstances to circumstances.
5. Duty in most of the cases creates an absence of right against some person.
6. Duty may be fundamental, legal or moral in character.

Relation Between Right and Duties

The following objects describes the correlation between right and duties:-

1. A right is indispensable without any duty.
2. A duty and right has separate and independent existence.
3. A right procreates duty and vice-versa.

 

 

 

 

TOPIC 9

CUSTOMARY LAW

INTRODUCTION

Custom is a conduct followed by persons in the society.

Customary law are personal laws which are applicable to particular racial, religious or ethnic groups.

It can be define as a regular pattern of social behaviour which has been accepted by the bulk of a given society as binding upon its members.

Under the S. 1 of Magistrate Courts Act, Customary was defined as “rules of conduct which govern legal relationships as established by custom and usage and not forming part of the common law nor formally enacted by Parliament”.

This custom will be enforced by courts and have a legal consequence on its breach.

Reasons for the Reception of Customary Law

Salmond opines that custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.

Equally, it is important to note that the fact any rule that has already the sanction of custom, raises a presumption that it deserves to obtain the sanction of law also.

Courts of justice should be content to accept rules of right which have already in their favour the prestige and authority of long acceptance.

Salmond further contends that custom is to society what law is to state. Each is the expression and realisation of the principles of right and justice.

The law embodies those principles as they commend themselves to the community in the exercise of its sovereign power.

Custom embodies them as acknowledged and approved, not by the power of the state, but the public opinion of the society at large.

Salmond further states that nothing is more natural than that, when the state begins to evolve out of the society, the law of the state should in respect of its material contents be in great part modelled upon, and coincide with, the customs of the society.

When executing its function of administration of justice, it accepts as valid the rules of right already accepted by the society of which it is itself a product, and it finds those principles already realised in the customs of the land.

The second reason Salmond offered for the law-creative efficacy of custom is to be found in the fact that the existence of an established usage is the basis of a rational expectation of its continuance in the future.

Justice demands that, unless there is good reason to the contrary, men’s rational expectations shall, so far as possible, be fulfilled rather than frustrated.

He went on to say that even if customs are not ideally just and reasonable, it may yet be wise to accept them as they are, rather than to disappoint the expectations which are based upon established practice.

WHEN DOES A CUSTOM BECOME LAW.

Analytical School

Austin and Gray are the supporters of analytical school. They are of the view that a custom becomes law when it is recognized by the sovereign in the sense of positive law only.

It means that if a custom has been accepted or adopted or recognized by the sovereign then it will become a law otherwise there will be no value of the custom in judicial system of the society.

Historical School 

According to this School, custom is a main source or base of law.

Von Savigny, the main proponent of this school was a German jurist whose attachment to the historical school was anchored on the volkgeist, or the spirit of the people.

Literally, volksgeist is a term connoting the productive principle of a spiritual or psychic character operating in different national entities and manifesting itself in various creations like language, folklore, mores, and legal order.

According to Savigny however, the nature of any particular system of law was the reflection of the ‘spirit of the people who evolved it’.

Hence, in a simple term, volksgeist means the general or common consciousness or the popular spirit of the people.

Savigny believed that law is the product of the general consciousness of the people and a manifestation of their spirit.

Savigny’s central idea was that law is an expression of the will of the people. It does not come from deliberate legislation but arises as a gradual development of common consciousness of the nation.

He was of the view that a nation’s legal system is greatly influenced by the historical culture and traditions of the people and growth of law is to be located in their popular acceptance.

He therefore contended that, emanating from the consciousness of the people, custom not only precedes legislation but is also superior to it.

According to him, 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.

He traces the connection between custom and legislation and concludes that law is best fulfilled when it reflects the custom of the people.

He saw law as reflective of the spirit of the people. To him, the growth of legal principles is not in vacuum, 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 two- fold – division of functions and classes, and the technicalization of the law.

On the second reason, Elegido suggests that there is no indigenous comparator for such legal concepts as, for example, 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.

Savigny was criticized on the basis that he overestimated or overrated the potency of custom.

It is true that custom, being a mirror of accepted usage, has a role to play in cementing sections of the country together.

But the utility of custom is limited in the face of societal complexities, the challenge of development, etc.

What happens, for example, if a country hitherto free of earthquakes has become prone to such natural disaster?

Of course, there would be no existing cultural code governing the area; it would be recondite.

Therefore, it would be rational and pragmatic for the country affected to import laws from jurisdictions that have had the experience of earthquakes.

Within the context of African experience, we may ask the extent to which customs determine the laws of Anglophone, Francophone and Lusophone Africa.

Evidently, these parts of Africa were colonized by the English, French and the Portuguese respectively.

The colonists came with their laws many of which displaced pre-existing customs.

Although indigenous people initially rejected such displacement, they have come to accept or retain many of such laws in their legal systems at independence and beyond.

CUSTOMARY LAW

In contemporary times, the irrelevance of Savigny’s advocacy is glaring. This is because in our global village, there is mutual interdependence so that, according to need, countries freely import foreign laws into their legal systems.

For example, Ethiopia’s Haile Selassie employed the French Professor, Rene Dafr, to write the country’s Criminal Code, which was fashioned after the French law.

Note that the provisions in many international Conventions signed and domesticated by most countries were originally the customs or the foreign laws of very few countries.

CUSTOMARY LAW

Although their domestication does not undermine the importance of customs, it demonstrates the gross limitation of Savigny’s thesis on custom as the sub-structural or basic source of law.

According to Salmond the importance of custom as a source of law continuously diminishes as the legal system grows.

According to him under English law it has now almost ceased to operate, to an extent because it has been superseded by legislation and precedent and partly because of the stringent limitations imposed by law upon its law creating efficacy.

CUSTOMARY LAW

TYPES OF CUSTOMS

For our purposes, three main types of custom can be identified and briefly discussed.

These are: local customs, usages and general customs.

Local Custom refers to the customs of particular localities which are capable of being recognised as laws even in derogation of the common law.

Local customs were respected and resorted to in the course of the development of common law doctrines when judges would go out to decide disputes arising among different people.

Such resolution was often based on local customs. Their acceptance by the court is hedged around with a number of conditions which have been evolved by the judiciary.

For instance, such local custom to be applicable must possess a sufficient measure of antiquity; it must have been enjoyed continuously; it must have been enjoyed ‘as of right’; it must be certain and precise; and the custom has to be consistent with other customs in the same area.

Note however that the fact that it may conflict with local customs elsewhere did not matter. This is why the geographical limit within which such local customs are applicable must be precisely defined.

With time, reliability on local customs started to fizzle out as the common law had been able to develop common customs that had metamorphosed into written statutes.

The idea of local customs also became demystified as developments in the transportation and other sectors brought together several localities which where hitherto unreachable.

Usage emanated from the fact that society is never still. As it develops it moves away from the letter of the law by evolving practices that may influence or simply by-pass existing rules.

Such practices only acquire the label ‘laws’ when incorporated into statute or precedent, but they have immeasurably greater significance and operation apart from this.

One sphere is in contract. If transactions in a particular trade, or of a particular kind in a particular locality, have long been carried on subject to a certain understanding between the parties, it is but natural that in the course of time everyone in the trade, or in the locality, who carries on such transactions, will assume them to be done in the light of this understanding, if nothing is said to the contrary.

Since one of the purposes of law is to uphold the settled expectations of men, the courts sometimes incorporate these settled conventions as terms of the contract.

Certain conditions must however be met before the court can do so, namely:

1. the usage must be so well established as to be notorious;
2. such usage cannot alter the general law of the land, whether statutory or common law;
3. it must be a reasonable usage;
4. it need have no particular scope; and
5. the usage will not be enforced in a particular case if it purports to nullify or vary the express terms of the contract.

General Custom: It has long been a commonplace of English judicial pronouncements that a custom prevailing throughout the land, if it existed before 1189, is part of the common law.

This identity between general custom and the common law was a matter of historical development, for the common law from its earliest days was no more than the creation of the judges.

The reliance by Royal justices on decisions given in one part of the realm, based on local customs, as precedents for decisions in other parts gradually produced principles of general application, which came to be known as the ‘common custom of the realm’ or the ‘common law’.

It is only for the judges then to declare what amount to ‘general custom of the realm’

Limitation to Validity of Custom

Rules of customary law are subject to tests of validity prescribed by statute.

These tests therefore constitute some limitation on the validity of customs.

The first test is the repugnancy test.

This test holds that the custom sought to be applied must not be repugnant to natural justice, equity and good conscience.

It is provided for in the Judicature Act and Magistrate Courts Act.

What this test is composed of has not really been well defined by scholars.

It can only be understood through the cases where the courts have held some customary laws/practices to be in breach of the repugnancy doctrine.

See the following cases:

1. OmwoyoMairura v. BosireAngide (1958) 6 C.R.R 4
2. Edet v. Essien (1932) 11 NLR 40
3. Mariama v. SadikuEjo (1962) NRNLR 81
4. Mojekwu v. Mojekwu (1997) 7 NWLR (Part 512) 233
5. Ole Oloso v. Nalulus Ole Kidoki (1915) 5 E.A.L.R 210

The repugnancy test thus constitutes a limitation on the validity of customs as a source of law.

 Where the custom is barbaric, contentious or out of tune with modern expectation, the court will be inclined to hold that such custom breaches the repugnancy test/doctrine.

The second test often applied by the court to test the validity of customary law is the incompatibility test.

Any customary law that is incompatible either directly or by implication with any law for the time being in force shall not be applied by the court.

The scope of ‘any law for the time being in force’ is debatable.

Some have argued that it includes English law: see Re Adadevoh (1951)13 WACA 304 at 310, where the West African Court of Appeal stated obiter that ‘any law in force’ included ‘the rules of the common law as to the unenforceability of claims contrary to public policy.’

The third and the last test is that of public policy.

Any custom to be applied by the court must not be contrary to public policy.

The application of customary law has been precluded in many cases on the ground of being contrary to public policy.

See the following cases:

1. Alake v. Pratt (1951)13 WACA 304
2. Cole v. Akinyele (1960) 5 FSC 84.

Colonial Elements in Repugnancy Cases

There is no disputing the fact that what was held to be repugnant to natural justice, equity and good conscience during the colonial era would mostly be determined by the colonial masters’ perception of repugnancy.

This was a very big mistake since one could not appreciate a people’s culture except he is part of that culture.

Hence, some of the customs that were held to be repugnant or that were deemed to be barbaric and outrageous may not be so when placed within African culture and customs of that time.

Essentials of Customs

1. Antiquity:- It means oldness of the customs. The customs must be ancient. There is no limit of time for the antiquity of custom.
2. Reasonable:- The customs must be reasonable. It should not be un-reasonable and against the public feelings.
3. Followed:- Customs must be followed by the society. There should be no contradiction in observing customs.
4. Continuity:-  Customs must be continuing from the time it was recognized as law. There should not be any break or interruption. 

5. Certainty:- Customs must be certain in its nature.
6. Consistency:- There should not any conflict for its recognition as law.
7. Peaceful Enjoyment:- Custom must be enjoyed peacefully for a long time without any disturbances.
8. Immorality:- Customs should  not be against the morality.
9. Public Policy:- It must not be against the public policies or against the will of people.
10. Not Against the Law of the State:-  Customs should not over-ride legislation . It should not be against the law of the land.

For a discussion on the role and relevance of customary law in the Ugandan Judicial System see Chapter Six of Key Issues in Jurisprudence.

BY NURU MOHAMMED AWUYE