JURISPRUDENCE II NOTES

The natural thing in the theory of natural law is its universal applicability. It is considered divine law, eternal law and the law of nature. Natural law is the product of reason. It has been gone through different stages and it is defined by men in different ways. Morality is the central idea of this theory. Morality is considered as the higher law under which the validity of human laws can be measured. In ancient time natural law was considered religious or supernatural. In modern, it is responsible for the modern political and legal ideology. Natural law is based on reason and good conscience which measures what should do or not to do. It is the reason which distinguishes between good and bad.

TOPIC 1: NATURAL THEORY OF LAW

In Introduction

· Definition

· Essential Features of Natural Law

· Natural Law and Positive Law

· Historical Odyssey of Natural Law

· Restatement of Natural Law

· Types of Natural Law

· Obedience to Unjust Law

· Natural Law in Ugandan Law

· Critique of Natural Law Doctrine

OBJECTIVE

At the end of this topic, you will be able to:

Demonstrate the historical origin of natural law;
Analyze the ancient and modern meanings of natural law;
Compare and contrast the ancient and modern history of natural law;
Demonstrate the propriety or otherwise of obedience or disobedience to law; and
Assess natural law content in Ugandan law.

STARTER

Are we naturally Good or Bad?

Ø Thomas Hobbes (1588-1679) in his book Leviathan – life of man is “solitary, poor, nasty, brutish and short”

Ø Jean Jacques Rousseau (1712-1778) – people are born essentially good. If conditions are right people will flourish and be morally good.

Which is right??? Why?

REFLECT

Are gay marriages immoral?

Is racism wrong?

Should the law permit abortion?

Is it wrong to eat human being?

Should torture be allowed?

Should necessity be a defence for murder?

Should war be allowed?

Should the way we dress be regulated?

INTRODUCTION

Moral questions routinely tug at the sleeve of our legal and political practices, their persistence is perhaps one of the hallmarks of a democratic, or at least an open, society.

These inquiries are not confined to the armchair of philosophy: the vocabulary of ethics increasingly infuses the language of international relations.

To postulate an ‘axis of evil’ presupposes a normative touchstone by which to judge the behaviour of states that, since the establishment of the United Nations, is partly embodied in an ever-growing cluster of international declarations and conventions.

The ubiquity of ethical problems has, of course, preoccupied moral philosophers since Aristotle.

The recent renaissance in natural law theory represents an acknowledgement that we have, over the centuries, come no closer to resolving these awkward questions.

Natural law theory is one of the most important theories in the philosophy of Classical Realism.

However, it is also widely misunderstood by many either because they did not study it or have heard of it and dismissed it as a "medieval" relic.

Before the overview of the nature of natural law theory, let's take a brief look at some history.

The concept of natural law has taken several forms:

The idea began with the ancient Greeks' conception of a universe governed in every particular by an eternal, immutable law and in their distinction between what is just by nature and just by convention.

Stoicism provided the most complete classical formulation of natural law.

The Stoics arguments:

Ø that the universe is governed by reason, or rational principle;

Ø that all humans have reason within them and can therefore know and obey its law.

Ø that because human beings have the faculty of choice (a free will), they will not necessarily obey the law;

Ø that if they act in accordance with reason, however, they will be "following nature.”

Christian philosophers readily adapted Stoic natural law theory, identifying natural law with the law of God.

For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine wisdom") which is knowable by human beings by means of their powers of reason.

Human, or positive, law is the application of natural law to particular social circumstances.

Like the Stoics, Aquinas believed that a positive law that violates natural law is not true law.

With the secularization of society resulting from the Renaissance and Reformation, natural law theory found a new basis in human reason.

The 17^th century Dutch jurist Hugo Grotius believed that humans by nature are not only reasonable but social.

Thus, the rules that are "natural" to them - those dictated by reason alone are those which enable them to live in harmony with one another.

From this argument, by the way, Grotius developed the first comprehensive theory of international law.

Natural law theory eventually gave rise to a concept of "natural rights."

John Locke argued that human beings in the state of nature are free and equal, yet insecure in their freedom.

When they enter society, they surrender only such rights as are necessary for their security and for the common good.

Each individual retains fundamental prerogatives drawn from natural law relating to the integrity of person and property (natural rights).

This natural rights theory provided a philosophical basis for both the American and French revolutions.

Thomas Jefferson used the natural law theory to justify his trinity of "inalienable rights" which were stated in the United States Declaration of Independence.

During the 19^th century natural law theory lost influence as utilitarianism and Benthamism, positivism, materialism, and the historical school of jurisprudence became dominant.

In the 20^th century, however, natural law theory has received new attention, partly in reaction to the rise of totalitarianism and an increased interest in human rights throughout the world.

With this contemporary interest in mind, let's now turn our attention to the natural law theory as understood by the tradition of Classical Realism.

EXERCISE

What is Natural Law?

DEFINITION

What do we mean by "natural law"?

In its simplest definition, natural law is that "unwritten law" that is more or less the same for everyone everywhere.

It is the concept of a body of moral principles that is common to all humankind and, as generally posited, is recognizable by human reason alone.

Natural law is therefore distinguished from -- and provides a standard for -- positive law, the formal legal enactments of a particular society.

Since law must always be some dictate of reason, natural law also will be some dictate of reason. In fact, it is law discovered by human reason.

Our normal and natural grasp of the natural law is effected by reason, that is, by the thinking mind, and in this service, reason is sometimes called "conscience."

We, in all our human acts, inevitably see them in their relation to the natural law, and we mentally pronounce upon their agreement or disagreement with the natural law.

Such a pronouncement may be called a "judgment of conscience."

The "norm" of morality is the natural law as applied by conscience.

Lastly, natural law is the disposition of things as known by our human reason and to which we must conform if we are to realize our proper end or "good" as human beings.

In summary, natural law:

Ø is not made by human beings;

Ø is based on the structure of reality itself;

Ø is the same for all human beings and at all times;

Ø is an unchanging rule or pattern which is there for human beings to discover;

is the naturally knowable moral law;

is a means by which human beings can rationally guide themselves to their good?

Everyone seems to have some knowledge of natural law even before such knowledge is codified and formalized.

This is why many proponents of the natural law theory say it is the law which is "written upon the hearts of men."

Definition by Authors

Lloyd – “natural law” has been variously applied by different people at different times:

Ideals which guide legal development and administration;
A basic moral quality in law which prevents a total separation of the ‘is’ from the ‘ought’;
The method of discovering perfect law;
The content of perfect law deducible by reason.

That natural law argues that what ‘is’ the law is based on a higher law dictated by reason and so is also what the law ’ought’ to be.

That natural law is thought to acquire a sanctity that puts it beyond question.

That despite its different doctrines, what has remained constant is an assertion that there are principles of natural law.

Though views as to the content of these principles have sometimes diverged but the essence of natural law may be said to lie in the constant assertion that there are objective moral principles which depend upon the nature of the universe and which can be discovered by reason.

These principles constitute the natural law.

John Finnis - a theory of natural law claims to be able to identify conditions and principles of practical right-mindedness, of good and proper order among men and in individual conduct.

That natural law consists of two sets of principles:

certain basic values that are good for human beings;
the requirements of practical reasonableness.

These values are known because they are self-evident.

Dias - natural law thinkers includes a moral element in their conception of law since they think of it as an indispensable factor in the continued existence and functioning of law.

Positivists exclude a moral element since they are mindful of the necessity of having clear-cut means of identifying laws for practical purposes of the present, unclouded by impalpable moral considerations.

Salmond - natural law is the idea that law consists of rules in accordance with reason and nature.

Ordinary human law is only truly law in so far as it conforms to these principles. The principles of justice and morality constitute the natural law.

Man should live according to nature - that since the distinctive feature of man’s nature was his endowment with reason, man should live according to the dictates of reason.

Natural law is that branch of law that is variously defined or described as the law of nature, higher law, eternal law, divine law, etc.

On natural law, the Roman orator, Cicero, said:

“True law is right reason in agreement with nature;

it is of universal application, unchanging and everlasting;

it summons to duty by its commands, and averts from wrongdoing by its prohibitions.

And it does not lay its commands or prohibitions upon good men in vain, though neither have any effect on the wicked.

It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely.

We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it.

And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge.

Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.

Burlamqui in his Principles of Natural Law (1747):

Natural law comprises rules which so necessarily agree with the nature and state of man that, without observing their maxims, the peace and happiness of society can never be preserved ….

They are called natural laws because a knowledge of them may be attained merely by the light of reason, from the act of their essential agreeableness with the constitution of human nature:

while, on the contrary, positive or revealed laws are not founded upon the general constitution of human nature but only upon the will of God: though in other respects such law is established upon very good reason and procures the advantage of those to whom it is silent.

Therefore, natural law theory offers or provides an insurance against the chaos and disorder common with the human society.

Recall that in 1996, the ILC, a UN agency charged with the responsibility of codifying and of progressively developing international law released the Draft Code of Crimes Against the Peace and Security of Mankind.

The Code enumerated international crimes to include aggression, genocide, crimes against humanity, crimes against the UN and associated personnel, and war crimes.

To Kelsen, in his What is Justice? (1957):

The NL doctrine undertakes to supply a definitive solution to the eternal problem of justice, to answer the question as to what is right and wrong in the mutual relations of men.

The answer is based on the assumption that it is possible to distinguish between human behaviour which is unnatural, hence contrary to nature and forbidden by nature … certain rules which provide an altogether adequate prescription for human behaviour…

Nature is conceived of as a legislator, the supreme legislator.

Radbruch – a positivist – who witnessed the horror and destruction wreaked by the German Reich on its neighbours had to fall out with his first faith in preference for natural law.

In his Five Minutes of Legal Philosophy, he said (1945):

There are principles of law that are stronger than any statute, so that a law conflicting with these principles is devoid of validity.

One calls these principles the natural law or the law of reason … the work of centuries has established a solid core of them.

Natural law could be synonymously called the law of nature, divine law, eternal law, etc.

Natural law theories are basically theological or secular.

Theological theories rely on allusion to God, the Holy Books and the prophets, in arguing for the existence or validity of natural law.

These theories regard the universe as being founded and ruled by some deity, God, etc.

The creator has laid down rules and principles by which the universe (including the earth inhabited by human beings) is ordered and regulated.

It is from these principles that the morals or conscience of humanity derive.

On the other hand, secular theories depend on human reason (or will).

They canvass the view that natural law exists in rational human beings who are created by God.

Because they are the creatures of God, they possess the rational idea, the reasoning capacity to know what is good and what is bad.

They have the intellect even without the assistance of another person to discover natural law or the law of nature.

Guided by the ensuing knowledge, he is able to order his life, according to his choice, in a moral way or in an immoral manner.

In other words, secular theories demystify natural law by detaching God therefrom, that is, by positing that natural law will or can be independent of God. Thus, on a rather extreme note, Hugo Grotius said that there would be natural law even if there were no God.

EXERCISE

What are the essential features of Natural Law?

ESSENTIAL FEATURES OF NATURAL LAW

Natural law is universal, unchanging and everlasting;
That which is good is in accordance with nature but that which is evil is contrary to nature. Therefore, natural law is good;
There exists an order in nature which is rational and which can be known by man;
There are absolute values, and ideals which validate laws. A law lacking in moral validity is wrong and unjust.

On this basis, natural law invalidates certain manifestations of the positive law and provides an ideal towards which the positive law should strive.

Some Analyses of the Features of Natural Law

Natural law as Universal, Unchanging and Everlasting

It is usually claimed to be universal, unchanging, and everlasting.

Looking at the major legal systems of the world, this assertion can hardly be faulted – traces of it exist in them irrespective of time, space and geography.

Consider for example, the social contract theory.

that citizens agreed to submit their rights to their rulers in return for responsible and responsive governance. It forms the basis of modern State system anchored on democracy.

Hardly any system of government in contemporary world that is not founded upon democracy - any exception is an aberration.

Another e.g. – FHR - said to have pre-dated humanity.

They are rights that appertain to a person by reason of his being a person.

HR regime guarantees or upholds the equality of all before God and law, right to life, freedom of speech, freedom from discrimination, etc. - Citizens cannot barter them away.

In IHRL, these are grouped into generations of rights, domesticated or deemed to be operative in all States.

Notwithstanding its universality, in different civilizations, natural law has been a ready tool in the hands of persons and systems of varied ideological persuasions.

Natural law has been used by democrats, liberals, autocrats, dictators, etc. to advance their causes, positive and negative to the common good of the people.

Prof. Alf Christian Ross (1899- 1979) in his On Law and Justice, § 58 (p. 261) wrote:

Like a harlot, natural law is at the disposal of everyone. The ideology does not exist which cannot be defined by an appeal to the law of nature.

And, indeed, how can it be otherwise, since the ultimate basis for every natural right lies in a private direct insight, an evident contemplation, an intuition. Cannot my intuition be just as good as yours?

Natural law has been used to advance the freedom of humanity; at the same time, it has been utilized to perpetrate inequality or slavery. E.g. civilizations of Egypt, Mesopotamia, China, India, Rome and Greece.

Good and Evil

Natural law is usually associated with good. This is predicated on the origin of nature or humanity.

The almighty creator is good and in Him is no evil. He is omnipotent and omniscient.

In the fullness of these qualities, He designed the universe (including humanity) in an orderly fashion for the good of all.

Operating within the scope of that design, harmonizes with that order. Deviation therefrom means disorder or rebellion.

Hence, anything done consistently with the divine design is good; anything contrary is bad or evil.

Thus, man-made law that does not meet the requirement of divine good is evil.

Man’s Comprehension of Nature

As a creature of God, Man has some of His qualities.

Some of these are intelligence and reasoning power.

When God created man, He gave him the power of intelligence and of reasoning.

Rene Descartes says that to live according to reason is to live naturally.

Hence man is able to decipher what the divine is or possibly is.

To Aquinas, natural law represents man’s participation in the cosmic order or universe with the aid of the power God has put in man.

We may call that capacity to participate in nature, conscience.

That small voice within us, telling us what is good and what is not, and propelling us to do that which is good and to reject that which is evil.

However, what man ultimately does may not necessarily be a reflection of this mental exercise: why?

Because man is also invested with the power of will or of choice.

Consequently, man can decide to, for e.g. kill despite his knowledge of its inconsistency with nature.

Natural law is usually used synonymously with morality. Where such morality coincides with natural law, such synonymous usage is justified.

Where, however, morality relates only to a person’s social or ‘moral’ way of life, it should be understood as such without necessarily attributing it to natural law.

Relationship Between Natural Law and Positive Law

The clash between natural law and positive law is legendary.

Natural law, essentially focuses on de lege feranda (the law as it ought to be), a law whose existence is proved by reference to transcendental, metaphysical, idealistic, theological or rationalist arguments.

Its adherents argue that natural law reflects the order of nature and represents a blueprint for decent or orderly existence of humanity.

Such order is superordinate or superior to positive law.

Natural law is predicated on value judgements, representing a standard against which the goodness or otherwise of positive law is measured.

Hence, for humanity to live in peace and harmony, there is the need to live in accordance with the law of nature.

Under this, every human law that fails to measure up to the moral standard set by natural law fails the test of legal validity, hence unworthy of the name ‘law.’

Conversely, positive law which fundamentally concentrates on lex lata (the law as it is), is law made by man.

Proponents contend that this is law whose existence can be proved scientifically, i.e. can be physically observed, located and touched.

In disclaiming the position of natural law, they accuse natural law theorists of confusing the ‘is’ with the ‘ought.’

This muddles up the system of thought.

To Austin, the validity or legitimacy of the (positive) law is one thing, its merit or demerit another.

That positive law is concerned strictly with the validity of the law.

Any discussion of its merit or demerit was not the concern of positive law.

If, however, moral philosophy is interested in that subject, all well and good. But it must do well to avoid confusing validity with propriety or otherwise of the law.

Prof. Hart stressed, there is no necessary connection between law and morals.

However, he did not deny that there are common grounds or convergence between them

Rather, that it is not a matter of course that law must be connected to morals.

Hence, there are wide areas of divergence between law and morality.

EXERCISE

In what ways is natural law different from positive law?

How relevant is natural law to contemporary legal order across the globe?

Examples of areas of divergence:

Immanuel Kant - that the thrust of law is external while morality is a matter of internal conscience.

Evident in inchoate offences e.g. the law of attempt under the Penal Code.

Law is a product of conscious, formal procedure in contrast with morality which is created informally.

Man-made law does not just emerge out of the blues with the few exceptions of dictatorships/autocratic systems.

In modern democracies – a law goes into series of procedures within and outside legislative houses before it becomes law.

No such formalities in the making of morality.

Morality is not made; it grows or emerges. Pre-existing moral norms are handed down from generation to generation until people find them unacceptable.

Recall that natural law is everlasting and unchanging. It has always been there, waiting to be discovered by the intelligence or reasoning power of man.

Law prescribes right or wrong judgment but natural law prescribes good conduct.

The validity of law is confined only to the issue of whether it is right to do one thing or wrong to do another.

E.g. The law that gives me the right to own acres of land in a community of landless peasants is valid if it was promulgated in accordance with the requirements for such promulgation.

However, under natural law or morality, this would be bad or evil because one man possesses to the detriment of many others. Therefore, such law would be a bad law.

Law prescribes sanctions against violations, while violation of natural law is not punishable by man but by God or the creator.

Moral sanction is of a different kind and guided more by public opinion.

For example, criminal law imposes on a parent a duty of care towards his infant child but it does not similarly obligate a non-parent.

However, natural law/morality imposes equal duty of care on both biological and non-biological parents.

EXERCISE

What were the contributions of Greek heritage to the development of natural law?

HISTORICAL ODYSSEY OF NATURAL LAW

This looks at the processes natural law has gone through in attaining its attributed status in contemporary times.

Early Origins

In pre-modern societies there was a union of secular and religious beliefs. Societies were believed or deemed to be ruled or directed by gods or spirits.

This sprouted the belief that there was a power beyond human power, directing the affairs of the human society with certain rules, principles or laws.

Discovery of these laws ultimately enabled the human society to access the divine good plans or intentions of these spiritual forces for humankind.

If human society tried well enough, it could discover them.

Put differently, in order for the human society to experience cosmic order and harmony, it was essential for it to harmonize its conduct with such divine plans and intentions.

Graeco-Roman Heritage

This belief system was boosted in Europe in the classical era when the rise of Judeao-Christian tradition saw monotheism replacing polytheism.

To Chinhengo:

this belief in one deity paved the way for the definition of a singular purpose for the human society with the law-giver providing basic principles for human morality and law through the scriptures and revelations of His prophets, and demanding that societies rule themselves on the basis of these principles under the rulership of kings who had the right to do so as of divine right.

However, the Greek system of belief, based on polytheism, had contrary view of natural law.

Parallel to the spiritual/religious coloration, the Greeks developed the idea of rationalism.

Rationalism holds that the universe, being governed by intelligible laws, was capable of being understood by the human mind.

From such rationality, it was possible to derive rational principles that could be put to use in the governance of human conduct in the society.

Socrates (470-399 BC) and Plato (428-348 BC) asserted that there were principles of morality which were discoverable through the processes of reasoning.

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

Aristotle (384- 322 BC) saw nature as the capacity for development inherent in particular things and aimed at a particular end.

The Stoics, who taught the development of self-control and fortitude as means of overcoming destructive emotions, identified nature with reason:

That reason governs all parts of the universe and that human beings were equally governed by reason.

That people live ‘naturally’ when they conduct their lives in accordance with reason.

Cicero agreed and asserted that nature provides rules by which the human society ought to live and that these rules were discoverable through reason.

In ancient Greece, the belief flowered that natural law was metaphysical, transcendental, and independent of the will of the individual.

Sophocles (496 BC-406 BC) in Antigone describes natural law as the unwritten and unfailing statutes of heaven.

The Greeks distinguished between logos (laws of heaven) and nomos (man-made laws).

Where both are harmonized or, where nomos harmonizes with logos, there will be cosmic harmony, a condition in which everything functions efficiently.

When there is disconnection, there will be chaos or anarchy and redressing this would entail going back to status quo ante bellum.

Hence, the destiny of the Greek society was tied to the apron string of heavens.

The polis (City State), or civil society, was to be organized in a way consistent with the cosmic order.

Socrates was of the view that the laws of the polis were a reflection of natural law. That natural law was each doing what pertains to his nature.

Socrates was condemned to death because he taught young people normal ideas.

He exhibited the height of his morality when he resisted moves by his loyalists to escape because this escape would be unjust. He drank the hemlock and died.

Plato (427-347 BC), a student of Socrates, maintained, that society will be peaceful and orderly if only that well-trained take over the reins of governance.

In other words, persons endowed with intellectual superiority are exclusively those entitled to rule.

His proposition is that a person who has gone through the process of good, seasoned training should aspire to leadership position.

Compare this with contemporary developments

Democracy – majority rule even if uneducated.

He further maintained like Socrates, that each man was to do what ethically pertains to him. E.g. a slave cannot be master.

Plato upheld the legitimacy of inequality or slavery.

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

He identified some types of justice such as natural justice, conventional justice, commutative justice, corrective justice and distributive justice.

He also accepted the naturalness of slavery.

Pythagoras (580 – 500 BC) on justice, said, equality was tantamount to justice.

Thus, the reward or punishment of human action should be proportional to his degree of his goodness or badness.

He 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.

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.

Roman Heritage

Roman law, (jus civile), was classified into three types:

res (law of things);
actio (law of action); and
persona (law of persons).

Note that only a Roman citizen had full capacity to possess right and to create obligations.

The head of the Roman family (pacta familia) had full contractual capacity.

The wife, or a woman, had diminished capacity.

Women, slaves, infants and persons of unsound mind lacked capacity.

Jus civile was applicable between citizens of Rome only.

Society expansion and increased interactions with the outside world necessitated devising a system of law applicable to non-citizens.

This led to the emergence of jus gentium.

A law developed by Rome to apply to foreigners, or to transactions between Romans and non-Romans.

Jus gentium is the crystallization of natural law and the beginning of international law.

The Justinian Code was the first code produced by juris consult (commissioned by Emperor Justina) to apply to all irrespective of race, creed, status, and nationality.

One of the leading lights of this era was Cicero, the Roman orator.

He described natural law as:

true law as right reason in agreement with nature;

it is of universal application, unchanging and everlasting;

it summons to duty by its commands, and averts from wrongdoing by its prohibitions.

Note, however, that Rome was also a slave owning society. Consequently, natural law in Rome accommodated a world of slavery or inequality.

Note also that Greek and Roman civilizations were just some of the many civilizations that contributed to the development of jurisprudence generally and natural law particularly.

Hence, shutting out other civilizations from the radar of discourse smacks of Euro centricism and narrow-mindedness.

Thus, according to Prof. Oyebode, civilizations such as Egypt, India, China and Mesopotamia (now Iraq) stamped their feet on the canvas of natural law.

Scholastic Period (1100 – 1400)

This was the Medieval Period in Europe that witnessed the theological rendition of natural law especially by St Augustine (354 – 430) and St. Thomas Aquinas (1224-74).

With the Catholic Church leading the system of thought, the period saw the integration of rationalist and religious approaches to natural law through the seminal work of St. Thomas Aquinas.

St. Augustine (354 – 430) believed that our earthly existence has been irredeemably tainted with the original sin.

He distinguished between the City of God and the City of man.

While the City of God refers to doing the will of God, the City of man symbolizes a life of sin.

He categorized law into three groups: lex temporalis, lex naturalis, and lex aeterna.

St. Aquinas divided law into four groups as follows: eternal law, divine law, natural law and human law.

According to him, law must be for the common good, and just.

Where, however, such law is unjust, it was unworthy of being called a law. Thus, the saying lex injusta non est lex (an unjust law is no law).

Secularization of Natural Law

Under the influence of Reformation or Renaissance in Europe, the religious clout of the Roman Catholic Church waned.

The direct implication of this was the Catholic Church’s loss of monopoly of thought. Protestant theories bloomed.

Their main remit was to develop the theory of natural law independent of the explanation paraded by the Papacy.

One of the secular natural law theorists, Hugo Grotius – Dutchman and jurist – separated natural law from its theological foundation.

He insisted that natural law was independent of divine law or command, and emphasizing that natural law was derivable from human reason or intellect.

He even asserted that natural law would exist even where there was no God.

EXERCISE

Discuss the background to the decline and rebirth of natural law.

Decline of Natural Law

The influence of natural law dwindled in the 18^th and 19^th centuries.

The cause was the emphasis on scientific approach to learning, an approach that favoured rationalist and secularist perspectives to the study of human phenomena

There was an increasing assault on natural law for its reliance on metaphysics and idealism.

For example, David Hume (1711-1776) criticized natural law for attempting to derive an ‘ought’ from an ‘is.’

The fall of natural law incidentally saw the rise of positivism with the likes of Austin and Bentham insisting on the separation between positive law and morality.

Rebirth of Natural Law

The 20^th century witnessed a revival or rebirth of natural law doctrines. Why?

Because of a combination of factors, representing the failure, weakness or excesses of positivist doctrines.

We shall consider some of these briefly:

Horror of Second World War (1939-1945)

Prosecuted under the inspiration of extreme positivism where Nazi Germany deified the State and where Hitler became the uncommanded commander to whom obedience was compulsorily offered.

Hence, no surprise that the war exterminated six million Jews.

The horror of the war jolted the international community from its stupor.

The Preamble to the UNC provides, in part, that:

The UN was determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.

Coming on the heels of the adoption of the UN Charter was the UDHR, 1948, ICCPR and ICESCR, 1966

Since 1945, the rebirth of natural law has manifested in a glut of human rights instruments at both international and regional levels and in domestic legal systems.

The recurrent refrain in all these instruments and laws is the protection of human rights of persons and the restraint of the freedom of action of States.

In other words, the natural law regime has succeeded in institutionalizing a bulwark against the excesses of positivism in the governance of peoples across the globe.

Human Rights Violations

This is allied to the observation made on the 2^nd WW.

Prior to 1945, human rights were the reserve domain of each sovereign State.

It was the norm for States to disregard or suppress the human rights of its citizens and other people. No external interference was tolerated.

Thus, Germany felt insulted when the LN sought to know why it was maltreating its Jewish minority, and terminated its membership in 1933.

But since 1945, the tide has turned against violators.

There are now legal instruments and mechanisms for the enforcement of human rights.

Scientific Excesses

The necessity for the revival of natural law has come into sharper focus with the excesses that accompanied scientific progress and advance.

Science has come to ease the hardship hitherto experienced by humanity in daily existence.

It is a welcome development. However, instances abound where pursuit of scientific inquiry has been geared towards harming human race. Examples?

Such as developing biological and chemical weapons, weapons of mass destruction, etc.

Recall that US invasion of Iraq in 2003 was predicated on the search for weapons of mass destruction.

The recent face-off between Iran and the international community or the critical members of the international community is because of suspicion that Iran is developing atomic weapons.

Which other issues revived natural law?

Human cloning (remember dolly – sheep – the first cloned mammal born in 1996);

Homosexuality;

Lesbianism;

Same-sex marriage;

Euthanasia, etc.

Restatement of Natural Law

This relates to the natural law discourse by modern natural law theorists, for example, John Finnis (1940 -).

Finnis, a British lawyer and philosopher was desirous of investigating the utility of natural law in contemporary society.

To Finnis, natural law is a set of principles of practical reasonableness to be utilized in ordering human life and human community in the process of creating optimal conditions for humans to attain the objective goods.

Finnis’ restatement proceeds from a denial of the criticism of positivists that natural law theorists seek to derive an ought from an is.

He de-emphasized the metaphysical character of natural law, perhaps, due to severe criticisms from positivists.

The modern natural lawyers focus on the common good without which the society will be in disarray.

To Finnis, the normative conclusion of natural lawyers was not based on the observation of human behaviour or nature but from the reflective grasp of what is evidently good for all human beings.

He contends that objective knowledge of what is good is possible owing to the existence of objective goods which he calls ‘basic forms of human flourishing’.

He enumerated such objective goods to include life, knowledge, play, aesthetic experience, friendship or sociability, practical reasonableness, and religion.

Finnis believes they are irreducibly basic.

EXERCISE

The category of natural law is not closed. Do you agree?

TYPES OF NATURAL LAW

Thomas Aquinas (1224 – 1274) identified four kinds of law: Eternal Law; Natural Law; Divine Law; and Human Law.

Eternal Law (Lex aeterna)

This is law that is known only to God though some blessed select few may perceive it.

Through its God rationally directs all creatures. All creatures are ruled by the law.

But note that the implication of man’s possession of free will is his capacity to disobey or to act contrary to this law.

b) Divine Law (Lex Divina)

This is the law revealed in the scriptures.

It comes in handy when law discovered by human reason fails. i.e. it clears doubts in the mind of man as to the law of nature.

By doing this, it provides a guide for human reason. Complementarily, this law can be revealed to a select few – the prophets.

In the Bible, for example, God revealed certain laws or rules of conduct to the people of Israel through such prophets as Isaiah, Jeremiah, Ezekiel, etc.

c) Natural law (Lex naturalis)

It is the law that manifests man’s participation in the workings of the cosmic law or the law governing the whole of the universe through the medium of reason.

It is that small, still voice in a man’s heart, the conscience, the ‘small god’ which exposes the difference between good and evil, and encourages one to do the former and to refrain from the latter.

Thus, because natural law exists in every man, ‘whatever is a means of preserving human life and warding off its obstacles belongs to the natural law.’

For e.g. self-preservation is natural law.

Also, since everyone shuns ignorance, the search for knowledge is natural law.

d) Human (Lex humana)

This is law made by man, otherwise called positive law. It involves particular uses of the natural law.

Since natural law is man’s participation in eternal law, amidst such participation, man enacts positive law for the governance of man and things.

Such positive law may or may not conform to the law of God or natural law.

Where it conforms, it is said to harmonize with the divine will of the creator or with the law of reason.

Where it does not, it is said to fail the test of natural law. In the extreme of cases, it may even be denied legal validity.

EXERCISE

What is meant by the statement that an unjust law is no law?

In Uganda, every citizen is at liberty to disobey an unjust law? Do you agree?

OBEDIENCE TO UNJUST LAW

In the family of natural law, law is either just or unjust.

To Aquinas, a just law has three features:

It must harmonize with the dictates of natural law, or ‘ordered to the common good;’
The law giver has not exceeded his authority; and
The law’s burdens are imposed on citizens fairly.

However, where a law fails any of the three criteria, it is unjust.

A law may be unjust when it is contrary to human good, i.e. when it has no redeeming value.

An example is autocratic laws that violate or undermine basic human rights of citizens.

Also, an unjust law is a law which is contrary to the divine good such as the law of a dictator forbidding the worship of the God, or abolishing freedom of worship.

Unjust laws are generally not binding on men. They are binding only in conscience.

But what does this imply for the purposes of obedience and law enforcement?

It is commonly said that such law does not warrant or command obedience.

Such understanding is captured by the Latin phrase lex injusta non est lex (“an unjust law is no law”).

The implication of this is that the addressees of the law in question are not duty-bound to obey it.

Because of the grave consequences of the failure of the people to obey a law, there is need to clarify the scope of this call to disobedience.

To Bix, Aquinas did not use this phrase. All he said was that any law that conflicts with the law of nature was a perversion of law.

And Augustine is claimed to have said that an unjust law seems not to be law.

Other philosophers such as Plato, Aristotle, Cicero, and St. Augustine are generally believed not to have made such a general statement.

Bix, offers a more reasonable interpretation of the phrase by saying that it means the unjust law is not law ‘in the fullest sense.’

That there are times when, because we are dissatisfied with the service by a supposed professional man, we tend to deny his professionalism though he has actually got formal, requisite qualification.

Hence when it is said an unjust law is no law, it is not really to deny its validity but to state or protest its failure to have the same moral force as natural law.

Recall that Hegel’s mystical theory asserts the moral superiority of the State over the individual.

Hegel recognizes that the individual could claim no higher right than to obey the law of the State of which he forms an insignificant part.

That the State is the ultimate embodiment of morality, hence, obedience to the State is the highest form of morality.

Remember the polytheistic Greek tradition of belief in many gods. Amidst this belief system, there was bound to be conflict between positive law and moral law.

Where that happens, obedience was to go to positive law.

Plato’s Crito (featuring a conversation between Crito and Socrates) graphically represents Greek elevation of positive law over natural law.

Note, Socrates was sentenced to death. He was convinced of the wrongness of the sentence and was even given the opportunity to escape. But he refused, preferring to suffer death penalty under the patently unjust positive law.

According to Socrates, the only consolation for the victim in his shoes is to persuade the State to reform or change the law.

Note also the assertion of Thomas Hobbes that law is to be obeyed, even when unjust because the alternative is the chaos of the state of nature, of war of all against all.

Note again that Aquinas stated that a citizen is not bound to obey an unjust law if the law ‘can be resisted without scandal or greater harm.’

In other words, such law may be obeyed ‘in order to avoid scandal or disturbance for which cause a man may even yield his right.’

Thus, Socrates submitted to death penalty (by drinking hemlock) probably he reckoned that his disobedience would adversely affect the society of his day.

This, indeed, is an important qualification to the general assertion or call to disobedience.

What it means is that disobeying the law must not be a noisy affair; it must be done quietly.

It is another way of saying that if such disobedience will breach the peace or cause disorder or disaffection, then it is inadvisable to have recourse to it.

That such disobedience is unnecessary where it would cause greater harm or evil than the unjust law.

The morale here, is for the addressees of unjust law to endure it.

John Finnis asserts that the individual may exercise his right to discount unjust laws.

However, he interpreted lex injusta non est lex as suggesting that an unjust law, though formally valid, does not meet the demands of natural law.

Note that the proposition that citizens should, nevertheless, obey an unjust law is consistent with practice across the globe.

There are so many laws which citizens may have good reason to consider offensive to the moral conscience, yet no immediate choice but to obey hoping, as Socrates advised, that law makers would be aroused to the consciousness of the unjustness of the law, and carry out requisite reforms.

EXERCISE

Examine the statement that there is no natural law content in Ugandan Law

NATURAL LAW IN UGANDAN LAW

Social Contract

To vindicate that natural law is universal, there are several layers of natural law in most, if not all, legal systems including the Ugandan legal system.

The Constitution clearly demonstrated this.

Social contract is what was accepted as the basis upon which a person or group of persons could exercise political power over the other members of a political organization.

It is a contract, or assumed to be so, between the rulers and the ruled.

The underlying implication is that no authority can impose itself on the people in a manner inconsistent with the dictates of the social contract.

Separation of powers

Another trace of natural law is separation of powers.

To John Locke and Montesquieu, the doctrine is that:

a) The same persons should not be part and parcel of more than one of the three arms of government;

b) An arm of government should not interfere in the affairs of any other two arms of government; and

c) One arm of government should not exercise the functions of another arm.

The functions of each are clearly defined and set out in the Constitution and any action taken or to be taken by each arm must be in accordance with the Constitution.

Sovereignty

Sovereignty originally propounded by Bodin belonged to the State and, most important, to the symbol of the State such as the head of State, president, prime minister, etc.

However, in its modern rendition, sovereignty now belongs to the people.

For example, Ugandan Constitution declares sovereignty to belong to the people of Uganda from whom government through the Constitution derives all its powers and authority.

Note that this perspective is consistent with modern international law where the sovereign’s sovereignty has been displaced by people’s sovereignty.

Fundamental Human Rights

In addition to States’ subscription to international human rights instruments, domestic legal systems equally have a pride of place for human rights norms.

Note, however, that there is no absolute right without corresponding duty.

Also note the provision of compulsory acquisition of property which is a manifestation of the privilege of public interests over individual interests.

Finally, note the provision which permits derogation from all the rights in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the rights and freedom of other persons.

CRITIQUE OF NATURAL LAW DOCTRINE

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

Reliance on Metaphysical Validation

Natural law is a law built around idealism. Knowledge is acquired by means of metaphysical or transcendental inquiry.

In the Age of Science, or Renaissance, many philosophers severely criticized the natural law doctrine for its inability to prove or demonstrate the truth of its claims.

Hence, natural law was condemned for its unscientific methodology.

For e.g., David Hume said - natural law is real only in the sense that some individuals entertain the feeling that it exists.

He believed it was a figment of the imagination of fertile minds.

He contended that its truths cannot be asserted or demonstrated meaningfully, and concluded that it attempts to derive an ‘ought’ from an ‘is.’

Natural law was not also sparked by the proponent of utilitarianism, Jeremy Bentham.

He developed his theory upon the pedestal of denigrated natural law.

He had described natural law as nothing but a phrase and natural rights as nonsense upon stilts.

He had argued, inter alia, that the spread of natural law would undermine the fabric of sovereignty and fan the embers of rebellion.

Proviso to Universality

Danish jurist, Alf Ross (1899-1979) mounted a virulent attack on natural law doctrine in his On Law and Justice (1958).

According to him, the metaphysical speculation underlying natural law is totally beyond the reach of verification.

He maintained that the doctrines of natural law are neither eternal nor immutable.

To him, natural law has been utilized to defend every conceivable kind of demand, slavery and fraternity.

It is in this light that Friedmann notes that ‘natural law has at different times been used to support almost any ideology’.

Lastly, Ross argued that the metaphysical postulates of natural law are no more than ‘constructions to buttress emotional attitudes and the fulfilment of certain needs.’

Diversity of Moral Opinions

We have said that natural law represents man’s participation or share in the workings of the universe with the aid of his reasoning power.

We asserted that natural law is that small, still voice in a man’s heart, the conscience, the ‘small god’ of a man.

However, we realize the fact that man is different from man. Because one person’s background, status, belief system, etc., is different from another’s, their appreciation of or participation in natural law is bound to be different.

Therefore, there is no oneness of natural law. In other words, there is no unity within the family of natural law.

It is more or less a divided house since consensus is very unlikely.

TOPIC 2: PURE THEORY OF LAW

· Philosophical Foundation

· Why Pure Theory of Law

· The Key Elements of Kelsen’s Theory

· Norm – Behaviour – Command/ Permission/ Authorization

· Legislation, Legal Norm and Statement of the Law

· Distinguishing Legal and Moral Norms

· Kelsen's Hierarchy of Norms

· The “Grundnorm”

· Legitimacy and Efficacy of Norms

· Kelsen and Revolutionary Political Changes

· Criticisms

OBJECTIVE

At the end of this topic, you will be able to:

Evaluate the Pure Theory of Law;
Establish the connection between the validity and efficacy of norms; and
Assess the role of the grundnorm in a legal system, and the circumstances of its change.

HANS KELSEN (1881-1973)

Born in Prague but moved to Vienna with his family at the age of two

He taught at the universities in Vienna and Cologne and University of California at Berkerly

He was the author of the Austrian Constitution and designer of the Austrian model of judicial review adopted by many countries

He was a judge of the Austrian Supreme Constitutional Court and, after emigrating to the US, participated in the drafting of the UN Charter

He escaped Europe at the rise of Hitler to power. He published dozens of books and articles for over four decades.

SOURCES OF INSPIRATION

British legal positivism - empiricism.

Empiricist legal theorists reject metaphysical or mystical explanations of law - Assert that law exists as social fact and nothing more.

Germanic legal positivism - transcendental idealism of the German philosopher Immanuel Kant (1724-1804).

Transcendental idealism is the foundation of Kelsen’s “pure theory of law”, which presents law not as fact but as norms that exist in the realm of ideas.

Facts are about what there is, whereas norms are propositions as to what ought to be done or not done.

Kelsen said of his theory: “it is called a “pure” theory of law, because it only describes the law and attempt to eliminate from the object of its description everything that is not strictly law.

Its aim is to free the science of law from alien elements.

British legal positivists regard law as fact distinct from morals. LAW + FACT - MORAL

Germanic legal positivists seek to separate law from both fact and morals. LAW – FACT & MORAL

Unlike Hart, Hans Kelsen was interested in providing a general theory of law, that is, one not tied to any particular legal system.

He aimed to ‘discover the nature of law itself, to determine its structure and its typical forms, independent of the changing content which it exhibits at different times and among different peoples'.

This requires PURE THEORY of law!

In Pure Theory of Law, Kelsen attempted to render legal analysis free from all ethical or political judgments.

Adopting such value-free analysis, he insisted on clear demarcation between positive law and moral law.

Like any positivist, Kelsen believed that positive law or the law as it is must not be adulterated by allusion to psychology, ethics, or political theory.

This means that he rejected metaphysical speculation, the domain of natural law.

His interest was to assist in understanding positive law generally, not a particular legal system.

The theory is logically self-supporting and independent of extra-legal rules.

WHY PURE THEORY OF LAW?

In order to discover the essence of law — what distinguishes law from other social phenomena — one has to exclude all extraneous and non-legal elements, such as moral, sociological, psychological and political factors.

Kelsen - moral and political factors are extraneous to an account of law.

What is right and wrong is a subjective matter. Value judgments are based on 'emotional factors' and therefore cannot be verified by facts.

Law, by contrast, is an objective matter and therefore susceptible to 'scientific' study.

It would contaminate the legal scientist's detached, objective descriptions of the subject matter if subjective moral tests were to be used in identifying law.

Hence moral considerations cannot contribute to determining what the law is (as opposed to determining what it ought to be).

LAW, MORALITY, SOCIETY AND HISTORY

However, Kelsen did not say that law should not be studied in its moral, social and historical context.

He claimed only that such study does not amount to legal science, which is the study of how people ought to behave according to positive law — according to the law as we find it, rather than the law as we would like it to be.

Special quality of Legal Science - normativity

Legal science is different from sociological and psychological accounts of law.

The latter do not account for law's normativity.

They describe the phenomena of law 'in propositions that tell how people actually behave.

But the science of law 'describes the phenomena of law in propositions that state how people should behave ‘.

THE KEY ELEMENTS OF KELSEN’S THEORY

Facts consist of things and events in the physical world.

Facts are about what there is. When we wish to know what caused a fact, we look for another fact.

A norm, unlike a fact, is not about what there is but about what ought to be done or not done.

Whereas facts exist in the physical world, norms exist in the world of ideas/thoughts.

Facts are caused by other facts.

Norms are imputed by other norms. The requirement that a person who commits theft ought to be punished is a norm. It does not cease being a norm because the thief is not punished. (He may not get caught). The norm that the thief ought to be punished exists because another norm says so.

Not all norms are laws. There are also moral norms. Legal norms are coercive; morals norms are not.

A legal norm has the quality of ‘validity’. A legal norm is valid if it is endowed with validity by another norm.

Whereas physical things arise from causation, legal norms arise from validation by another valid norm.

A norm that confers validity upon another norm owes its own validity to another norm, and so on.

However, this regression cannot go on infinitely.

Kelsen conceived the idea of a basic norm (Grundnorm), a kind of First cause of the legal system beyond which we cannot speculate in a legal sense.

The basic norm is presupposed.

A legal norm exists because of a chain of validity that links it ultimately to the basic norm.

The legal system is a system of legal norms connected to each other by their common origin, like the branches and leaves of a tree.

Note:

Philosophical foundation of pure theory - transcendental idealism.

Basic claim - purity of the pure theory can be understood only through this mode of thought.

(The term ‘idealism’ is used here in the philosophical sense and not in the more commonplace sense of commitment to ideals).

FROM TRANSCENDENTAL IDEALISM TO THE PURE THEORY OF LAW

Transcendental idealism - the epistemological foundation of Kelsen’s ‘pure theory of law’.

It presents law not as a fact but as NORMS that exist in the realm of ideas.

Facts are about what there is, whereas norms are propositions as to what ought to be done or not done.

It is a regulation setting out how persons ought to behave. It is ‘ought’ because it describes what ought to be, given certain conditions. It is normative. It is prescriptive. It is binding.

Kelsen said of his theory: ‘It is called “pure” theory of law, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements.’

Specifically, Kelsen claimed that his theory is pure on two counts.

q First it distinguishes law from fact.

q Second, it distinguishes law from morals.

Kant’s thoughts provided inspiration on both counts.

v The world of things (noumena) and the world of ideas (phenomena); and

v What is (sein) and that ought to be done or not done (sollen).

Kelsen Application of the Kantian Distinctions: LAW AS NORM

The physical acts that give rise to law (passing of a statute, delivery of a judgment etc.) belong in the world of things or fact. They occur in time and space so we perceive them with our senses.

The question of whether these acts represent a legal norm (an 'ought') cannot be answered simply by observing the facts. It requires a mental inquiry about what the facts mean in a normative sense.

Example

A group of persons assemble in a building called the Parliament House and engage in a debate about a document called the Terrorism Bill, which states that a person who commits an act of terrorism shall be punished by life imprisonment. (This actually means that terrorists ought to be punished, as the Act cannot guarantee that they will be caught and punished.) At the end of the debate there is a vote and a majority of the assembled group approve the Bill. The document is then certified as an Act of Parliament.

So far what we have observed is not the law but a series of facts.

The question for the legal scientist is whether these facts can be interpreted as giving rise to the norm that acts of terrorism ought to be punished with life imprisonment.

What creates the norm is not Parliament's say-so?

But ANOTHER NORM that states that the will of Parliament expressed in a particular way ought to be obeyed.

The Nature of Norm

Kelsen - ‘Norm is the meaning of an act by which a certain behaviour is commanded, permitted or authorized'.

“IMPUTATION”

Kelsen used the term 'imputation’ to signify the effect of a norm.

We speak of causation in relation to the natural world. One physical event causes another event.

Norms are not material things and one norm cannot cause another.

A norm creates a duty to behave in a certain way by imputing a sanction to the breach of that duty (Kelsen 1967, 81).

COMMANDS, AUTHORIZATIONS AND PERMISSIONS

We typically associate the law with commands to do or not do something.

But for Kelsen, there is no norm where there is no 'ought'.

Yet many laws at first sight seem to lack an 'ought ‘?

Ø An Act of Parliament authorizes (but does not compel) the minister to make regulations.

Ø My driving licence permits (but does not compel) me to drive my car on public roads.

Ø The Social Security Act grants me the right to receive a pension if I am unemployed or disabled but does not compel me to do anything.

How do we explain these laws as norms? Reversed effect of norm?

According to Kelsen, each of these laws has normative force. Such laws, in effect, say that people ought to 'endure' the actions of another person.

Ø The law under which I hold my driving licence means that people (including the police) ought to respect (endure) my liberty to drive.

Ø The law that authorizes the minister to make traffic regulations means that the minister's regulations ought to be obeyed.

Ø The law that entitles me to a pension means that some official ought to pay me a sum of money.

LEGISLATION, LEGAL NORM AND STATEMENT OF THE LAW

Legislation, judicial precedent or custom - this is a fact

The legal norm - this is the 'ought' proposition that results from the· interpretation of the legislation, precedent or custom

The statement of the rule of law – this is a command.

Legal norms represent the meaning we give to a particular series of facts. The statement in a statute that something ought to be done is not a norm but a fact. The norm is the meaning we give to this fact when considered with certain other facts.

DISTINGUISHING LEGAL AND MORAL NORMS

Legal Order as a Coercive Order

Like other legal positivists, Kelsen denied that there was a necessary connection between law and morality.

A law that gives effect to a moral rule is law.

Not because of its moral content but 'because it has been constituted in a particular fashion, born of a definite procedure and a definite rule of law ‘.

A norm in the sense of an 'ought' could be legal or moral. Often it is both.

Example: The rule against theft is moral as well as legal.

Law is not the only regulative system in society. Moral norms play an important role in guiding behaviour.

Moral norms, like legal norms, have both subjective and objective existence.

Kelsen also argued that law and morals cannot be distinguished:

according to their respective content. The only kind of moral norm that cannot be a legal norm is one that is addressed wholly to a person's own mind.

by the way they are created. There are two ways in which legal rules come about: by custom and by the will of a law-making authority. Positive moral rules are also established by custom, or by the will of a moral authority such as a divine being, a prophet or a church.
by the methods of their application. Moral systems lack the kind of specialised enforcement agencies (courts, police etc.) that we associate with legal systems.

The Role of Coercion

How does Kelsen explain primitive legal systems lacking in specialized enforcement organs?

How can we distinguish legal from moral norms in such a situation?

Such means of coercion may exist (as in primitive societies) without specialised agencies such as courts and governments.
A law may exist even if no coercion is in fact applied. The thief may not get caught, or if caught and tried may be acquitted for want of evidence or because of judicial error.

The moral norm states: 'A person ought not to commit theft'.

The legal norm states: 'If a person commits theft, they ought to be punished'.

As the legal norm, like the moral norm, is not a statement of fact, it does not assure that what ought to happen will in fact happen.

Read Hart’s Criticism of Kelsen on Coercion

Criticism

At the same time, Kelsen's and Austin's views are similar in one respect, namely, that both think that coercion is law's distinctive function.

Kelsen's views consequently suffer from the same defect that Hart identified in Austin's —the dogmatic attempt to reduce the complex phenomenon of law to just one element.

The price of such 'spurious uniformity' is, to Hart, distortion of the subject matter. In particular, it conceals the fact that different kinds of laws serve different functions – such as facilitative and power conferring laws, say in disposing of our property on death.

Hart concedes that, with sufficient ingenuity, legal rules which confer powers on us, such as rules which empower us to make a will, can be rewritten in Kelsen's format as conditional ought-statements.

Thus, the rule that states that two witnesses are required for the making of a valid will can be seen as a mere fragment of a more complete rule, stating:

‘If there has been a will witnessed by two witnesses, and signed by the testator, and if the executor has not given effect to the provisions of the will, then the court ought to apply sanctions to the executor.’

But the trouble with this, as Hart points out, is that we do not really understand the nature of rules which confer powers on individuals, such as the power to make a will, if we leave out the perspective of those whom they empower.

Such power-conferring rules are extremely valuable to us, and they therefore appear to us as `an additional element introduced by the law into social life over and above that of coercive control.

Kelsen's analysis of legal norms as authorizations to officials to impose sanctions therefore conceals the distinctive nature and function of the different kinds of rules which go to make up a legal system.

Legal Order is a Dynamic Order

Whereas moral order may be static or dynamic, legal order is always dynamic.

Legal order is dynamic in the sense that the content of its norms is variable depending on the will of the norm creating authority.

In contrast, the content of the norms of a static order is in a sense predetermined as they derive from the content of a higher norm. The lower norms are subsumed by the higher norm. This is the case with some moral systems.

It is important to notice that not all moral systems are static in the sense just described.

Kelsen's point is that legal order, unlike moral order, is always dynamic in the sense that the content of its norms is not predetermined.

The norm creating authority determines what norms to create and with what content within the limits of their jurisdiction.

EXERCISE

How does Kelsen explain the following?

The source of the validity of positive legal norms — legal norms laid down by human beings — and
What confers unity on a legal system?

KELSEN'S HIERARCHY OF NORMS

Kelsen - the validity of any legal norm depends on its membership in a system of norms.

Kelsen postulated a hierarchy of norms, each norm deriving its validity from a higher norm in the hierarchy.

This hierarchy culminates in an ultimate source of validity which Kelsen called the `grundnorm' or basic norm — a point at which the chain of validation can go no further.

Kelsen writes:

Valid norms whose validity can be traced back to one and the same basic norm constitute a system of norms, a normative order. The basic norm is the common source for the validity of all norms that belong to the same order — it is their common reason of validity.

Consider the following situation.

Suppose you find a parking ticket on your car and you want to know if you are obliged to pay the fine. Does the law objectively require you to pay the fine? The answer to this question depends on whether you parked unlawfully. That will depend in the first instance on whether the local authority has made relevant regulations. But that is just the beginning of the inquiry. The validity of the regulations in turn depends on their conformity with another norm, namely an act of parliament authorizing the authority to make regulations with respect to parking. The validity of parliament's statute likewise depends on another norm, namely, that in terms of constitutional law parliament has the legislative power to pass the statute, either because the statute is not in breach of any limits on its legislative power or because its legislative power is unlimited.

The validity of the constitution may in turn be a function of the fact that it has evolved from an older constitution or was created in terms of the rules of an older constitution by way of constitutional amendment. At a certain point in this chain or hierarchy of norms we arrive at the starting-point of the current constitutional order. Kelsen calls this the 'historically first' constitution. It is a constitution that cannot be traced to an older constitution but arose either as a result of a revolution (that is, in a manner not consistent with the constitution valid until that point) or as a result of a grant of independence to a former colony.

If we now ask why this 'historically first constitution' is valid we cannot trace its validity to a positive or created legal norm.

Instead, according to Kelsen, we have to postulate a basic norm or `grundnorm' — a non-positive norm which authorizes the creation of all legal norms, including that of the historically first constitution, and which provides that ‘[c]coercive acts ought to be performed under the conditions and in the manner which the historically first constitution, and the norms created according to it, prescribe’.

In short, the grundnorm provides that one ought to behave as the historically first constitution prescribes.

When we reach the grundnorm we have, according to Kelsen, reached a point at which the enterprise of justifying legal statements must stop.

It is the existence of the grundnorm which, for Kelsen, makes the difference between a gangster's demands and a tax official's demands.

Both demands express an individual's subjective wish that another person should pay over a certain amount of money, but the official's demands are authorised by a tax law, and ultimately by the grundnorm, and this confers objective validity on them.

It is by virtue of the grundnorm that we can say that the official's demands objectively ought to be obeyed.

By contrast, 'no basic norm is presupposed according to which one ought to behave in conformity with [the gangster's] order ‘.

However, Kelsen does not identify legal validity with moral validity: it is not the justifiability of the official's demands which distinguishes them from the gangster's but the fact that they have been created in a way which is authorised by the grundnorm.

To say that a legal norm is valid is merely to say that it exists within the legal system.

“CONCRETISATION”

The chain of authorization can also be followed in the other top-bottom direction: from the abstraction of the grundnorm down to an actual decision or legal action.

Kelsen calls this a process of `concretization ‘– where at each point down the chain the norms become more specific and concrete.

At the end-point we reach a norm authorizing force in the particular set of circumstances which define the case at hand — for instance, a judge's order that a particular defendant should pay damages of a certain amount to a particular plaintiff, an order which will be backed up by the threat of seizure of the defendant's property should the defendant not pay what he or she owes.

The “Grundnorm”

According to Kelsen, the science of law has to hypothesise the concept of the grundnorm in order to make sense of the fact that we describe conduct as legal or illegal – i.e. as conduct which objectively ought or ought not, according to law, to be done.

This hypothesis provides the logical basis for understanding how a subjective act of will can assume the form of an objectively valid legal norm.

It is therefore a merely theoretical construction.

Kelsen explains:

The basic norm is presupposed to be valid because without this presupposition no human act could be interpreted as a legal, especially as a norm-creating act. The basic norm is the answer to the question: how are all these juristic statements concerning legal norms, legal duties, legal rights, and so on, possible? ‘

It is, in other words, only by assuming that the grundnorm is valid — by assuming that all laws made in accordance with the historically first constitution ought to be obeyed — that we are able to make sense of the fact that we count certain standards as legal standards rather than as an 'aggregate of commands ‘.

EXERCISE

How does Kelsen explains the Legitimacy and Efficacy of Norms?

LEGITIMACY OF NORMS

In an ongoing legal order, a norm remains valid until it is terminated by its own terms or by a higher norm.

Some laws contain 'sunset clauses' according to which they cease to operate after the expiration of a prescribed period.

Generally, norms established by a law remain valid until repealed by another norm enacted by another valid law.

In other words, a valid norm remains valid until it is terminated in the way prescribed by the legal order founded on the basic norm.

Kelsen called this the principle of legitimacy.

The basic norm itself may be transformed in the manner prescribed by the basic norm.

In other words, the basic norm may be changed legitimately.

Written constitutions usually contain special rules by which they may be changed.

EFFICACY OF NORMS

It is insufficient for law to be valid or legitimate. Much more than this, it must be efficacious.

While validity is determined by the traceability of the norm to the existing basic norm, efficacy relates to the effectiveness or enforceability of the norm.

In other words, it asks the question whether the norm is obeyed, whether violations are prosecuted.

If the answer is in the positive, then the norm is efficacious. Otherwise, it is not.

Thus, the principle of legitimacy is restricted by the principle of effectiveness.

For instance, when the total legal order or the basic norm loses its efficacy, the system of norms may lose its validity.

Put differently, they cease to be valid not only when they are constitutionally annulled but also when the total order ceases to be efficacious.

Norms must be generally accepted. There must be sufficiency of adherence to the essence of the basic norm.

Validity therefore means authorization by higher law + a minimum of effectiveness.

‘The efficacy of the total legal order is a necessary condition for the validity of every single norm of the order.’

KELSEN AND REVOLUTIONARY POLITICAL CHANGES

Kelsen - grundnorm validates whatever constitutional order is currently in force.

But how do we know what constitutional order is in force?

Kelsen's answer: Whatever constitution is ‘effective’ - a constitution being effective when the norms whose creation it permits are on the whole applied and obeyed.

Implication: If there is a revolution in a particular country (i.e., an unlawful break with the past rather than a change by constitutional means), and if the revolutionary leaders are effectively in control and generally obeyed, we have to postulate a new grundnorm as the reason for the validity of the new constitutional order.

Kelsen’s Explanation:

Validity and effectiveness are not identical.

Effectiveness is a condition of the validity of legal norms but the reason for their validity is the grundnorm.

Thus, legal norms are valid only while the political order to which they correspond is effective, but the reason that the norms are valid is the presupposed grundnorm.

Kelsen’s pragmatic approach is thus:

If political reality no longer corresponds to the old order, that order must have ceased to be legally valid, and the usurpers must be acknowledged as the lawful government against the background of a new grundnorm.

The new order may not be morally legitimate but that is an entirely different issue.

Practical effects:

There had been cases where courts were asked to pronounce on the legality of a coup d'etat had validated the coup by reference to Kelsen's doctrine of effectiveness. Finding that the coup has been effective, they pronounce the new order lawful.

Some scholars criticize this approach on the ground that it rewards and even encourages treason, though it is not, in fact, clear that Kelsen would have endorsed this particular use of his theory.

See the following cases:

State v. Dosso and another

Asma Jilani v. Govt. of the Punjab

Begum Nusrat Bhutto v. The Chief of the Army Staff

Madzimbamuto v. Lardner-burke

Andrew Lutakome Kayira and Another v. Edward Rugumayo and 2 Others

Republic of Fiji and AG v. Chandrika Prasad

Attorney-General of the Republic v. Mustafa Ibrahim and Others

Ugandan case of Uganda v. Commissioner of Prisons, Ex parte Matovu

Nigerian case of Lakanmi & Kikelomo Ola v. A.G Western State, Nigeria

Ghanaian case of Sallah v. A.G of Ghana

CRITICISMS

In his Pure Theory of Law, Kelsen set out to purify all the impurities in positive law so that man-made law would be devoid of any metaphysical value or virtue.

How well he has been able to do this would be clear from the criticisms that follow:

Kelsen’s theory of law is said to be arid, unreal and removed from the complexities of the law in action.

It distorts reality to the extent that it disregards the socio-political and economic environment of the law.

Law does not exist as an isolate. It is part and parcel of the society.

Because law governs human conduct, studying it without human consideration would be futile.

Thus, Laski, in his Grammar of Politics (1925), described the theory as ‘an exercise in logic and not in life.’

Recall that 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.

In rejecting justice as a measure of the validity of law, Kelsen was in a lean minority.

If there is any policy of law on which many legal theorists of various backgrounds tend to agree, it is the need to use law to attain justice.

However, Kelsen thought otherwise, insisting that justice can be interpreted no more than ‘the conscientious application of appropriate general rules.’ In other words, he equated justice with legality.

In inexorably tying the validity of law to the existence of sanctions (in the mould of Austin), Kelsen ignores the distinction that Prof. Hart, a fellow positivist, has made between duty-imposing laws and power-conferring laws.

Law is not all about sanctions as found in criminal law. Much more than that, law is an instrument through which individuals may order their lives, business or relationship without sanctions attaching to their failure to do so.

Note, therefore that the absence of sanctions does not necessarily render a law ineffective.

Bear in mind that Kelsen’s grundnorm is, afterall, void of the positivistic garb.

His Pure Theory was aimed at eliminating any idealistic, moral, social or ethical consideration from the law. But his theory was found wanting when he could not locate the grundnorm in a scientific, demonstrable manner.

His legal-logical approach could locate the grundnorm only within the realm of idealism or metaphysics – the forte of natural law.

For a positivist Pure Theory to rely on the perspective of natural law to give meaning to grundnorm probably demonstrates Kelsen’s failure to fully appreciate the scope of either positive law or natural law.

In fact, he did a disservice to the positivistic enterprise by relying on or calling to service the idealistic or metaphysical tool of natural law to justify or explain his grundnorm in a theory that was meant to be empirical.

TOPIC 3: LEGAL POSITIVISM

· Origins of Legal Positivism

· Themes in Legal Positivism

· The Epistemological Thesis

· The Principle of Utility

· Criticisms of Utility Principle

· Hart on Separability Thesis

· The Social Thesis

· The Command Thesis

· Bentham's Definition of Law

· Austin’s Command Theory of Law

Origins of Legal Positivism

Legal positivism is based on the general proposition of positivism.

Positivism (also known as empiricism) is primarily a theory of knowledge. It deals with the question: How do we know?

It adopts an approach that is opposed to the rational speculation of the ancient and medieval periods.

For the first 200 years of its existence, the basic concerns of Western philosophy were metaphysical in nature.

Philosophers dealt with questions like: What is Reality? What is God?

To answer these questions, they depended on rational speculation, traditions, myths and authority (such as religious systems or authority figure).

The renaissance and enlightenment brought about a change in focus.

Instead of trying to determine what reality was and was not, the primary concern was the question: How do we know?

The Rise of Empiricism

In the circumstance, the old intuitive-rational way of knowing became obsolete.

A new way of thinking was required – a method that would provide a firm base for all new sciences.

Empiricism is an epistemology that emphasizes the importance of observation and experience in verifying claims to knowledge.

By presenting a picture of objectivity and certainty that no system of metaphysics could rival, the scientific revolution laid the basis for the enlightenment attitude of the eighteenth century.

Positivism or empiricism can be regarded as a rejection of metaphysics.

The point of departure is that science is based on empirical facts from which laws of nature can be deduced and these laws provide the basis for accurate predictions.

The positive method in social science was first set out by Auguste Comte (1798 – 1857). Comte rejected all metaphysical speculation (the unverified belief system) so typical of the earlier time.

His point of departure was that science should only concern itself with empirical facts.

Once these empirical facts have been established, general rules or laws can be abstracted by means of induction.

It is this attempt to make social sciences more scientific that provided the impetus for legal positivism.

Definition of Legal Positivism

Definition of legal positivism is contentious.

Some understand it as the theory that law is distinguished from other social standards, like morality and religion, by the exercise of force.

Liam Herrick - Legal positivism can be characterized generally as the application of positivist philosophy – which emphasizes the value of descriptive knowledge of sensory phenomena – to law and legal theory.

Themes in Legal Positivism

Three basic theories or theses of legal positivism:

Epistemological or Separability or Semantic Thesis
Social or Source Thesis and
Command Thesis

Epistemological or Separability or Semantic Thesis

It is the assertion that knowledge of facts and knowledge of values are acquired in different ways.

Description of the facts of law must be distinguished from the description of the values or morality of a person or a legal system.

Neutral (or value-free) description of law is possible and necessary.

It is the basis for the distinction between law and morality.

Klaus Faber (1996) interprets it as making a meta-level claim that the definition of law must be entirely free of moral notions.

This interpretation implies that any reference to moral considerations in defining the related notions of law, legal validity, and legal system is inconsistent with the separability thesis.

“Rights” and “Duties”

Meanings of terms like ‘rights’ and ‘duties’ to be distinguished between legal and moral contexts respectively.

In legal context, the terms ‘rights’ and ‘duties’ could only have a meaning determined by positive law.

Legal rights and duties do not exist in the metaphysical realm of the ideal but are the actual rights and duties created and enforced by legal actors.

Natural law and natural rights cannot be used to study what the law actually is because at best they provide a standard or ideal for what the law ought to be.

Utilitarian Positivists

They take their empiricism even further.

It is a mistake to confuse what the law is with the law ought to be by confusing legal rights and duties with natural rights and duties;

It is also a mistake to think that there are such things as natural rights and duties at all.

Rejection of Natural Law

Deontological* morality or natural law (what Bentham calls ‘nonsense on stilts’) does not exist because it cannot be verified empirically - people cannot, in their daily experience see it, hear it, or feel it.

Such fictions should not be used in the scientific evaluation of law either.

*Deontology - Ethical theory concerned with duties and rights.

THE QUESTION THEN:

If natural law was dethroned or removed, could some scientific or rational standard be found?

Or, otherwise, did this entail that, for the positivist, mankind was thrown upon a sea of conflicting moralities with no compass by which he might legitimately choose to follow or reject these?

The Principle of Utility

David Hume (an early empiricist) asserted that only utility could supply the answer to such questions.

However, it was Jeremy Bentham who expounded in detail the significance and working of the principle of utility.

All laws and social institutions should be measured against this ideal.

It was a scientific principle for evaluating legal rules and measuring the success of law reform.

Bentham - ‘it is the general happiness of the greatest number’ and that this was ‘the measure of right & wrong’.

Utility is ‘that property in any object, whereby it tends to produce benefits, advantage, pleasure, good, or happiness … to prevent the happening of mischief, pain, evil, or unhappiness.’

The way to judge if an action is right is by measuring its tendency to promote the greatest for the greatest number … Happiness equals pleasure (including the absence of pain) and is achieved through the use of law and reason – the right law will produce happiness, the right law being one in accord with reason, and thus with the principle of utility. (Lesley Levine, I Think, Therefore I Am)

Utilitarianism is therefore a theory of judging legal rules and institutions based not on deontological morality but on the question of whether it maximizes happiness and minimizes unhappiness.

NOTE:

The goal of utilitarian positivists was essentially legal reform. For this purpose, they insisted natural law must be rejected, because

it was unscientific and
it tended to reinforce the status quo and therefore frustrated legal reform.
For them neither long-standing use nor entrenched interest and privilege should stand in the way of law reform. The only criterion was utility.

NOTE:

Bentham’s notion of “Pleasure”:

This included not only carnal [or hedonistic] pleasures but also the more sublime forms of satisfaction gained from intellectual and spiritual pursuits, noble deeds and self-sacrifice.

He drew this from his famous principle of utility, which states that an action ought to be approved or disapproved according to its tendency to increase or diminish the happiness of the party whose interest is in question.

Austin’s Utilitarianism

Bentham’s moral theory was wholly materialistic.

He argued that God’s will is unknowable and what can be gathered from the scriptures is only ‘that which is presumed to be his will on account of the conformity of its dictates to those of some other principle’.

Thus, Bentham rejected the notion that the scriptures were a source of law.

Unlike Bentham, Austin regarded the law of God as revealed in the scriptures to be the primary source of moral rules. He accorded to these laws the status of ‘laws properly so called’.

For Austin there is a part of the law of God that is unrevealed and must be discovered through reason.

As God wills the greatest happiness of all his creatures, reason leads us to the principle of utility

Criticisms of Utility Principle

The legal positivist insistence on the separation of law and morality has been the subject of much criticism leveled at this theory.

Examples:

This separation has been blamed for the lack of protection of human rights in apartheid South Africa," for Nazism, colonialism and the defence of slavery.

A common misunderstanding regarding the separation of law and morals

Do utilitarians deny morality of law?

Hart had argued that:

Utilitarians never denied that legal rules are influenced, at least in part, by moral considerations;
They never denied that moral rules might become legal rules, and
They conceded that judges might be bound to decide cases in accordance with what they thought just or best.

The essence of the positivist position

Without an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.

Validity and Evaluation distinguished

Hence, the utilitarians/legal positivists never denied that morality influences the law.

What they deny is the use of morality to determine whether a rule is a valid rule or not.

Validity of a particular rule is one question; the morality of that rule is an entirely different question.

Insistence on the separation of law and morality therefore deals with questions of validity and not with evaluation.

Morality therefore does not determine validity.

John Austin: 'The science of jurisprudence is concerned with positive laws, or with laws strictly so called, as considered without regard to their goodness or badness.'

Austin further stated:

“The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”

Hart on Separability Thesis

He readily accepts that natural law has a role to play.

For a group of people to constitute a society, a number of basic rules must apply. This he calls the 'minimum content of natural law'.

These minimum rules occur in both law and morality and, as such, there is an overlap between the two.

But they are not the same – although both rules lead to obligations on people to obey them.

Distinguishing Features of Morality

Ethical rules are always important, while legal rules can often be relatively unimportant.

Ethical rules enjoy immunity from deliberate change, while legal rules can and must be changed deliberately.

Moral obligations are undertaken voluntarily, but legal rules are imposed involuntarily.

The form of moral pressure is different from the pressure of legal sanctions.

Law’s Validity – Separation of Law and Morality

Hart does not believe that the validity of law is dependent on morality, because law does not derive its validity from such a higher source.

Moreover, as Hart states:

A concept of law which allows the invalidity of law to be distinguished from its immorality, enables us to see the complexity and variety of these separate issues… At least it can be claimed from the simple positivist doctrine that morally iniquitous rules may still be law, that this offers no disguise for the choice between evils which, in extreme circumstances, may have to be made.

There is, therefore, no necessary conceptual or definitional link between law and morality.

The Social Thesis or Source Thesis

What law is and is not, depends not on metaphysical, but on social facts (e.g. decision-making process for the creation of commands or rules followed)

Stresses on contingency of laws.

Denial of ‘absolute’ or ‘natural’ rights and institutions found in natural law thinking.

The beginning of the social thesis - found in the work of:

Skeptical Calvinist writer Pierre Bayle (1647-1706), who required empirical proof for every proposition, and

Montesquieu (1689-1755) who also raised the idea of the social contingency of law.

The basis for the legal positivist insistence on the social thesis can be found in the works of David Hume (1711-1776) who insisted that human behaviour is the result of human motives and inclinations, habit or convention.

Hence, anti-metaphysical and scientific analysis was the only possible basis for the scientific study of law.

Bentham

Rejection of natural law as the basis for law.

Law had to be based on convention and it was, therefore, a human construct.

Example:

Bentham saw property rights as the creation of positive law and not as a natural right as Locke had previously claimed. Property rights are created by humans and could only be justified by utility.

Austin

In his insistence on the separation of law and morality, distinguished between positive law and positive morality:

'By the common epithet positive, I denote that both classes flow from human sources. By the distinctive names law and morality, I denote the difference between the human sources from which the two classes separately emanate'.

From this, two things become clear.

Austin insisted on removing morality from the metaphysical sphere. Morals and values had to be studied in as scientific a way as law.

Austin laid the groundwork for what can be called the sources thesis.

Increasingly, law and morality would be seen as human artifacts created in a specific social and historical context.

Natural law was reduced to rules that were and had been common to all times and all societies.

Liam Herrick

“At the core of Bentham and Austin’s work is a focus on the place of law within human society. By this we mean a concentration on law as being created, or posited, by political figures, as distinct from a view of law as being dependent on a particular moral code or other abstract or metaphysical standard. The starting point of their legal positivism was the belief that law is a human political phenomenon susceptible to rational analytical examination, and that such analysis contributed to society’s efforts to understand and ultimately improves its own governance.”

John Stuart Mill

He accepted the idea that law is a human construct.

He regarded all law as an infringement of liberty. The only way this infringement could be justified was if it was based on UTILITY.

And the only utility, according to Mill, was to prevent NONCONSENSUAL HARM to others.

If a law was intended to prevent harm, it could be justified. Mill used this principle to, for example, criticise the legal position of women making him one of the earliest known male feminist writers.

Hart

Hart's point of departure is that the law is a system of social rules.

Law is 'social' both because it regulates human conduct and because it is derived from human practices.

They are not the only types of social rules, but they differ from other rules because of their 'systemic duality'. In other words, law is a system of social rules.

Joseph Raz

He regards this social thesis as the most fundamental thesis in legal positivism.

It establishes the basic idea that law is posited, that is, 'made by the activities of human beings'.

Justification for the social thesis - law is a social institution.

There are three tests for the existence of a legal system, namely efficacy, institutional character and sources.

Efficacy - a legal system is not in force in a certain community 'unless it is generally adhered to and is accepted or internalized by at least a certain section of the population'.

Institutional character - a set of rules is not a legal system unless there are adjudicative institutions to settle disputes. These institutions must necessarily be authoritative and supreme in society - they are, above all, social institutions.

The requirement of a source is only met if a law's content and validity can be established without reference to moral arguments. (These requirements provide the link between the social and the epistemological theses).

The Command Thesis

Law is essentially a command by a sovereign to those who are in the habit of obedience.

Power to command is limited to that which is socially and empirically desirable.

Legal positivism was not the progenitor of the command theory of law.

Command theory of law had a long tradition before Austin and Bentham.

Examples: theories of

Grotius (1583-1645),

Coke (1552-1634),

Hobbes (1588— 1679) and

Jean Bodin.

Therefore, the utilitarians were continuing a long history of viewing law as essentially a command.

Note:

There was no general agreement on what the term meant or what the implications were.
There is no logical reason why a positivist’s insistence on the separation of law and morality need necessarily coincide with the command theory of law. (i.e. no connection between separability thesis and command thesis)

Hart’s positivism rejects the command theory of law.

For the history of the command theory in the positivist tradition see Ratnapala, on Thomas Hobbes and Leviathan.

Hobbes’ Human Nature – The Need for Authority

People will be in perpetual conflict unless they are subject to a supreme political authority.

Individuals on the whole have equal strength hence every person will lay claim to everything, including the control of other persons.

The result - war among individuals and hopeless misery [where the life of man is ‘solitary, poor, nasty, brutish and short’].

Hobbes’ defence:

Civilization is impossible in conditions of perpetual conflict. It is difficult to conceive humanity flourishing without security of life, liberty and property.

Hobbes advocated ABSOLUTE POWER but not arbitrary power.

Absolute power is the remedy for the arbitrariness of a self-help system.

According to Hobbes, ‘the end of obedience is protection’ and the ‘obligation of subjects to the sovereign is understood to last as long, and no longer, than the power lasteth by which he [the sovereign] is able to protect them’.

A sovereign (whether one or many), when rules by passion or ignorance, may govern in its own interests or prove too incompetent to protect the interests of its subjects. Such a sovereign loses its right to obedience.

Hobbes - the natural right of individuals to protect themselves can never be relinquished by covenant. Although sovereignty is intended to be immortal, yet it can be destroyed not only by the subjugation of the nation by a foreign power but also by the sovereign’s own corruption.

Hobbes’ sovereign is not necessarily an individual. It could be a group or even an elected parliament.

Unfortunately, history shows that Hobbes’ confidence that absolute power will deliver safety to life, liberty and property of the individual subjects was seriously misplaced.

Lord Acton in April 1887 made his most famous pronouncement:

"I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. All power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you super add the tendency or certainty of corruption by full authority. There is no worse heresy than that the office sanctifies the holder of it."

Bentham's Definition of Law

Bentham’s definition of law may be divided into six elements:

an assemblage of signs;
declaratory of volition;
conceived or adopted by a sovereign;
concerning the conduct to be observed by persons subject to his power;
such volition relying on certain events which it is intended such declaration should be a means of causing; and
the prospect of which it is intended should act as a motive upon those whose conduct is in question.

For Bentham, thus:

Law is an expression (assemblage of signs) of the will (volition) of a sovereign within a state.

Law in this sense requires a state (political order) that establishes sovereign authority.

A society that lacks the superstructure of a state and has no sovereign has no law in the sense of Bentham’s definition, though it may have law in a different sense.

Bentham, like Hobbes, did not think that law everywhere was regarded as the legislative will of a sovereign.

Bentham regarded the term ‘law’ as a socially constructed fictitious entity.

He knew that even in England the law, as commonly understood, was found mainly in the form of common law that was not the creation of a political sovereign.

However, Bentham regarded this authorless, unpromulgated and uncodified body of rules that made up English law as being unworthy of the name ‘law’.

He dismissed similarly the idea of a higher natural law. He called such law an obscure phantom.

For Bentham a system of law that derives its rules exclusively from the command of a sovereign authority, when measured by the yardstick of public utility, is SUPERIOR to the common law system. WHY?

It produces clear, authoritative and certain laws.
Whereas, common law generates a cumbersome and illogical mass of precedents that serve the interests of lawyers but not of the public.

Bentham’s Contempt for the Common Law

Bentham identifies law exclusively with legislation enacted by a sovereign.

He embraced this definition for the utilitarian reason that it would produce greater happiness of the greater number.

Bentham argued that customary law and common law lacked the ‘signs of law’.

A law, in Bentham’s view,

is known beforehand;

must set a standard by which conduct of people can be judged by courts to be legal or illegal;

adjudication is primarily a process of deduction from established law and found facts.

Bentham saw customary and common law the opposite process.

The court determines whether an act is legal or illegal; and people infer a rule of conduct from the court’s decision.

The rule is drawn inductively from the observation of what courts actually do.

The law in its legislative form applies generally, whereas a judicial order binds only the parties.

Bentham concluded that customary laws ‘are nothing but so many autocratic acts or orders, which in virtue of the more extensive interpretation which people are disposed to put upon them, have somewhat the effect of general law’.

He also wrote: ‘Written law is the law for civilized nations; traditionary law, for barbarians; customary law, for brutes.’

Bentham was conscious that customary law and common law cannot be eliminated from a legal system without comprehensive codification of all branches of the law.

He pursued the cause of codification with passion and industry, producing three major works on the subject.

However, history shows that Bentham failed in his mission, within his own country and in other parts of the English-speaking world.

Bentham did not inspire the codes of civil law countries, as they pre-dated his writings.

Bentham’s ‘Sovereign’

By ‘sovereign’, he meant ‘any person or assemblage of persons to whose will a whole political community are (no matter what account) supposed to be in a disposition to pay obedience: and that in preference to any other person’. Thus, the sovereign may be

an elected parliament,
an oligarchy, or
even a tyrant who secures the people’s obedience by naked force.

Bentham’s Limited Sovereignty?

Bentham emphasises that the legislature (sovereign) cannot do anything that is unlawful, though it can do something which would make it inexpedient for the citizens to obey.

He states: 'We have a Constitution. We have our liberties, our rights. Our kings have boundaries to their authority.’

It seems clear that Bentham never accepted, as did Austin, the idea of an unlimited and undivided sovereign.

He recognized a distinct class of laws which placed restrictions on the legislative power of the sovereign.

This `transcendental' class of laws was not equated with morality but was regarded as an integral part of the structure of law.

It is thus clear that Bentham, unlike Austin later, never accepted the idea of an unlimited and undivided sovereign.

Instead he suggested that the sovereign’s power may be limited by ‘transcendent law’, by which he meant constitutional rules.

However, Bentham struggles to explain the idea of legally limited sovereignty.

He discussed the issue in relation to a sovereign who is an individual.

The sovereign prince may set limits on his own power by a royal covenant (pacta regalia). A covenant that seeks to bind his successor will only be a ‘recommendatory mandate’ that becomes covenantal only when adopted by the successor.

Bentham says that a sovereign’s self-imposed limitations are enforced only by force of religious or moral sanctions.

These forces are no match for the political will of the sovereign.

John Austin’s Command Theory of Law

Austin - probably the most rigid of the legal positivists in his insistence on the unlimited and undivided sovereign who commands those in the habit of obeying.

He is generally acknowledged as having provided its fullest exposition.

Austin definition of law: ‘A command which obliges a person or persons . . . and obliges generally to acts or forbearances of a class'.

Thus, for Austin, all laws properly so called are commands; a command being an order backed up/supported by a 'sanction' (a threat of harm) in the event of non-compliance with the command. And the command is given or issued by superior (sovereign) to inferior (subject).

However, Austin admitted that law cannot itself be based on law but must be based on something outside the law.

Austin sought to base it on empirical fact, namely the habitual obedience of the people (to the ‘sovereign’).

There are 3 key elements in Austin’s concept of law:

Command;
A political sovereign; and
Sanction.

Nature of Austin’s Commands

Some commands are general — being directed to classes of persons and prescribing types of conduct;

Some commands are directed to individual people.

While all commands issue from a superior

some commands issue from God,

while others issue from humans.

And of those which issue from humans,

some are laid down by the sovereign in a state,

while others are not (like the commands of a father to his child).

For Austin then, only those general commands which emanate from the sovereign which are laws 'strictly so called' or 'positive laws' and it is these laws which comprise the subject matter of jurisprudence.

Austin’s Taxonomy of Law

Austin sought to isolate what he thought was the proper subject of jurisprudence through painstaking classification of all that answers the name ‘law’.

This includes – in addition to the laws of the political sovereign –

divine law,

moral laws,

customary laws,

laws of private associations,

laws of households, and

international law.

“Laws properly so called”

For Austin, only some of these are ‘laws properly so called’.

The criterion for a law to be ‘properly so called’ is that it derives from authority.

The others are laws by analogy – laws in the figurative sense.

They resemble proper laws to varying degrees but are merely the opinions of persons as to what ought or ought not to be done.

Law properly so called and positive law

Proper laws derive from authority, and there are two kinds of authority in Austin’s universe:

the authority of the Christian scriptures, and
the authority of the political superior.

The scriptures are the source of the divine law – that which is set by God for his creatures.

The political superior is the direct or circuitous source of human law properly so called - termed ‘positive law’.

Austin excluded the unrevealed part of the law of God from the class of laws properly so called, because it is founded on opinion and not text.

Austin considered the positive law to be the exclusive concern of jurisprudence, and the laws of God as the subject of theology.

Common Law

The common law - is law made by sovereign through their delegates, the judges.

Sub-divisions of positive law

laws set directly by the political superior or sovereign
laws set by private citizens in pursuance of their legal rights.

The laws set directly by the sovereign include laws made by authorized officials or ‘subordinate political superiors’ such as ministers, judges and other agents of the state.

Laws made by private citizens in pursuance of their rights - rules made by guardians for their wards and by slave owners for their slaves. Also included provisions in the will of a testator and the rules of a corporation.

The testator and the corporation are not agents of the State. However, since all legal rights are established by laws of the sovereign, the ultimate source of these private laws remains the sovereign.

Laws improperly so called

In Austin’s theory, not all norms are proper laws, but only those that have been authoritatively established by God or by the sovereign.

There are many kinds of law improperly so called.

The common denominator of this class is that they are based on opinion and not authority.

They resemble proper law to varying degrees.

Austin made a broad distinction within laws improperly so called.

Some of them resemble proper laws closely and are called laws with reason.

Others are only remotely analogous and are called law by ‘caprice of the fancy’. They are laws only in the figurative sense.

Austin termed the former ‘laws by analogy’ and the latter ‘laws by metaphor’. [Example: laws of science]

Laws by analogy are, in Austin’s taxonomy, not law but positive morality.

This class includes non-obligatory rules of social etiquette, household rules and moral rules.

It also encompasses customary law, international law and constitutional law, which are considered binding according to general opinion.

Opinion/Critique:

The stipulative nature of Austin’s taxonomy is palpable (easily perceptible) when we consider the role of customary law.

Sometimes a custom is so useful and valued in society that it demands recognition as positive law.

Sometimes a custom that has outlived its social utility may be so entrenched that it can only be extinguished by positive law.

Austin acknowledged that a customary law (whether domestic or international) may have the same practical effect as a positive sovereign law.

But in his legal universe it is not positive law, because it does not flow from the will of a determinate sovereign. No political sovereign, no law.

Hence, international law, in Austin’s lexicon, can become positive law only under a global empire whose rulers command the obedience of all subordinate states.

Austin’s ‘Sovereign’

From his definition of law Austin develops his theory of sovereignty in the following words:

“If a determinate human superior, not in the habit of obedience to a like superior, receives habitual obedience, from the bulk of a given society, that determinate human superior is sovereign in that society, and that society (including the superior) is a society political and independent.”

Austin regarded the political sovereign as a necessary feature of an independent political society.

A society that does not have a political sovereign does not have law in the strict sense of positive law.

It will have what Austin termed ‘laws improperly so called’ or positive morality. (Cf. Bentham)

Five Essential Attributes of Austin’s Sovereign:

The sovereign is a determinate human superior
The bulk of the people habitually obey the sovereign
The sovereign is not in the habit of obedience to any other human superior
The sovereign's power cannot be legally limited
Sovereignty is indivisible

The sovereign may therefore be a specific person, such as an absolute monarch, or a body of persons, such as a democratically elected parliament.

In either case, however, the sovereign can be identified as that person or body of persons which habitually receives obedience and does not itself display obedience.

Issues for consideration:

The problems with Austin’s concept of unlimited sovereign and the modern concept of constitutional government.

Can sovereign’s powers be limited?

The problem with Austin’s concept of indivisible sovereign.

How would Austin deal with the following:

the concept of separation of powers,
the federal system, and
representative democracy?

Command, Duty, Sanction

Austin - positive law is produced by a sovereign's command.

A command is not a request but an imperative that creates a duty by the presence of a sanction.

A command involves:

a wish or desire conceived by a rational being that another rational being shall do or forbear;
an evil in case of non-compliance; and
intimation of the wish by words or other signs (Austin 1995, 24).

A command cannot be separated from duty and sanction. They are aspects of a single event.

Where there is a duty there is a command, and where there is a command there is a duty.

In each case the duty arises from the existence of a sanction for breach.

Types of Commanding Laws

Laws producing commands may be:

general - rules of conduct applying to classes of persons or events. (e.g. criminal law - are general commands and impersonal; not directed to particular individuals).

occasional or particular (e.g. a command by which an individual's property is appropriated to the State)

The command creates positive law.

Austin’s Non-imperative Laws

These are not laws properly so called, but may be justifiably included within jurisprudence. These are:

1) Declaratory laws - do not create new duties but clarify or interpret existing legal relations. Imperative rules may be enacted under the guise of a declaration.

2) Repealing laws (laws to repeal law). (Note: the repeal of some laws may create new duties or revive old ones. E.g. The repeal of a law exempting some part of a person's income from tax creates a liability to the tax).

3) Laws of imperfect obligation - laws that lay down rules without attaching a sanction for their breach. (E.g. The statutory duty of the city council to keep the streets clean).

Laws Creating Rights and Liberties

For Austin, laws that create rights and liberties in individuals are imperative, and hence, by his definition, are laws properly so called.

They are imperative because they create correlative duties on the part of another.

Thus, a law that grants me the liberty to drive my car brings about a whole range of duties on the part of others to respect my liberty.

Austin’s Treatment of Law and Morality

Austin distinguished positive law from positive morality.

Positive morality is an aspect of morality generally.

It is moral to be kind to fellow beings, to practice temperance, to give to charity and generally to be virtuous.

These are moral values but not moral rules.

In Austin's system, positive morality is made up of moral rules that resemble positive law.

In every society, though, there are moral rules derived from moral values. Many rules of positive morality are co-extensive with rules of positive law. E.g. Rules against murder, rape, robbery, theft, and cheating.

What happens when a rule of positive law offends a rule of positive morality?

We can give a legal answer or a political answer.

In Austin's view, the legal answer is that positive law prevails.

The political answer depends on how the conflict plays out in society.

There are occasions when a rule of positive law is so obnoxious to the moral sense of the society that its enforcement is successfully resisted.

In such instances the rule remains legally valid but is without practical effect.

Austin, unlike Bentham, was a man of faith and steadfastly maintained that the sovereign is bound to obey the divine law.

This, though, is a moral duty and if the sovereign legislates against divine law it will nevertheless be law.

Austin wrote:

'Now to say that human laws which conflict with the Divine law are not binding, that is to say, are not laws, is to talk stark nonsense' (1995, 158). Any other view is not only wrong but pernicious, as it can lead to anarchy (1995, 159).

Austin’s Respect for the Common Law

Austin did not share Bentham’s disdain for the common law, although he agreed with Bentham that judges are the mere agents of the sovereign, authorized to adjudicate disputes and supply a rule where one is needed.

In Bentham’s ideal world the law is fully codified and the courts have no role in legal development.

Austin’s utilitarianism led him to the opposite conclusion:

Ø that judicial law-making is not only inevitable but is also an unambiguous public good.

Ø His complaint about the judiciary was not that they legislated but that they legislated too cautiously.

Assessment/Opinion on Austin

Austin rightly rejected the robotic view of the judicial function. The world is simply too complex and dynamic for the law to be exclusively the product of a legislature whose members are preoccupied with immediate affairs of state and electoral politics.

Questions rise in courts before legislature are seized of them, and judge cannot refuse to judge for want of legislative direction.

Moreover … the language by which statutes lay down the law is open-textured and their application in cases at the margin (penumbral cases) depends on judicial choice.

Only legislation of infinite and self-defeating complexity can possibly create a robotic judge.

Even in civil systems, where the law is extensively codified and the Code is pre-eminent, there is a need for judicially established principles (jurisprudence constante).

The more important question concerns the limits of judicial discretion. Judges cannot legislate at will without destroying public confidence in the courts, and thereby their political and moral authority.

Courts that defeat legitimate expectations of litigants, formed in reliance of legislation, common law and custom, are unlikely to retain the fidelity of the community that they are meant to serve.

Austin’s Achievements

he provided a taxonomy of things commonly called laws.

he offered a definition of positive law as the true subject of jurisprudence.

his system sheds a great deal of light on the legal universe.

he presented a comprehensible model that offered 20^th century legal positivists a clear set of ideas to adopt, criticize and refine.

Austin's theory, like those of Hobbes and Bentham, is ultimately a thesis in utilitarian moral philosophy.

Austin, like Bentham, sought to demystify the law, to make it more clear, certain and comprehensible.

Austin was more insightful than Bentham in some respects. Example: His recognition of the worth of judicial law making.

Austin consigned constitutional law, customary law and international law to the category of positive morality, but acknowledged their regulative force.

Practical Operation of Austin’s Analytical Approach to Law

Thus, Austin's simple answer to the question: How do we distinguish legal standards from the many other kinds of standards which regulate and govern human conduct?

He provides a straightforward factual test:

Laws are distinguished from other standards in being orders laid down by a supreme political superior or sovereign and backed up by sanctions.

Here, Austin says, is 'the key to the science of jurisprudence’.

This answer is not of just abstract interest.

Consider the Australian case of Milirrpum v. Nabalco Pty Ltd (the Gove Land Rights case) (1971), in which Austin's account of law was directly relevant to the legal issues and the court had consequently to pronounce on its adequacy.

The plaintiffs were certain aboriginal clans who claimed that a mining company had unlawfully interfered with rights they had under aboriginal customary law to occupy and enjoy certain areas of land in the Gove Peninsula in the Northern Territory.

Blackburn J found that the clans in question had a religious basis and a connection with the land.

They did not, however, have an internal organization, were not ruled over by a chieftain, and were not in control of a definable territory.

This raised the question whether in their world there was anything recognizable as law, because, if not, their relationship to their land could not amount to a proprietary right and their argument would have floundered at the first hurdle.

Clearly, on Austin's view, the answer would be 'No', since there was no identifiable sovereign authority giving the clans' customary rules about the use and enjoyment of the land a capacity to be enforced.

Austin's view was, indeed, expressly relied on by the Australian Government in arguing that the clans' customs were of a religious not a legal nature, and that no invasion of legal rights had therefore taken place.

But is Austin correct that force applied by the State is the defining characteristic of law? The court rejected his view and there are powerful arguments in favour of the position it took.

John Stuart Mill apparently agrees with Austin's definition of law as essentially a command.

He accepts, however, that the power of the sovereign must be limited, not only by the democratic process but also by limiting legislative powers.

The legislative power is limited to those aspects over which the law can legitimately exercise control.

Mill says quite explicitly that the only reason for which power can be exercised over a member of society would be to prevent harm to others.

Mill's most important contribution, however, is the insight that law is a social institution that must be understood in terms of society's needs and values.

Read about Hart Rules of Recognition

Ø Functions of the Rule of Recognition

Ø Primary Rule

Ø Secondary Rule

See the following cases:

Uganda v. Musole (1978) HCB

Exparte Mwenya (1959) 3 All ER 359

Harris v. Donges (1952) 1 TLR 1245

AG v. Trethowan (1931) 44 C/WLR 394

Blackburn v. AG (1971) 2 All ER 1380

Ssempebwa v. AG (UG)

TOPIC 4: LEGAL REALISM

· Introduction

· Two Streams of Legal Realism

· Differences and Similarities between American and Scandinavian Realism

· American Legal Realism

· Scandinavian Legal Realism

Introduction

Legal realists are positivists - They seek to explain the law as it is as opposed to what the law ought to be.

They agree with the legal positivists that law's connections with morality are only contingent or coincidental. An immoral rule may still be law.

But they criticize legal positivists – the latter misrepresent the nature of law by their undue focus on its formal features (law as command, rules, norms, etc.)

Two Streams of Legal Realism

Legal realism refers mainly to two schools of thought.

American Realism, and
Scandinavian Realism

American Realists

Americans are pragmatist and behaviorist, emphasizing ‘law in action’ (as opposed to legal conceptualism).

Americans are ‘rule sceptics’,

Scandinavian Realists

The Scandinavians are philosophical - attacking metaphysical foundations of law.

Scandinavians are ‘metaphysics-sceptics’.

American Realists

Americans are far more concerned with courts and their operation.

law in real life is very different from the law stated in the law books.

real law depends on how appellate courts interpret written words and how trial courts determine the facts in particular cases.

There is uncertainty at both ends.

Scandinavian Realists

Scandinavians look at the legal system as a whole.

Seek to find a scientific theory of law without metaphysical explanations.

force of law could not be explained by physical facts alone.

Claim that however hard you try, it is not possible to find a corporeal thing that correspond to concepts such as property, right or duty.

law exists by the psychological effects caused by certain facts.

American Realism

American realism is about getting the facts right about law making.

Americans were more empirically minded.

Scandinavian Realism

Scandinavian realism focuses on psychological pressures that make people to observe the law.

Scandinavians look at human psyche.

Similarities between American and Scandinavian Realism

Scholars of both traditions reject all absolute values (such as ‘justice’) and

They are both empirical, pragmatic, and ‘realistic’.

Wacks: This ‘realism’ … is an impatience with theory, a concern with law ‘as it is’. And a preoccupation with the actual operation of law in its social context.

Both realist movements have no common voice.

The theorists within each school do not speak with one voice.

THE AMERICAN REALIST MOVEMENT

The Background and Historical Conditions of the Movement

At one end: Laissez-faire (free market economy) as the dominant creed in America.

Attachment, in the intellectual sphere, with ‘formalism’ in philosophy and the social sciences.

This was a reverence for the role of logic and mathematics and a priori reasoning as applied to philosophy, economics and jurisprudence, with but little urge to link these empirically to the fact or experience of life.

At the other end: Increasing domination of empirical science and technology on American society.

Emergence of intellectual movement in favour of treating philosophy and the social sciences, and even logic itself, as empirical studies not rooted in abstract formalism.

Legal Formalism

American realism was a reaction to ‘legal formalism’, or the 'mechanical' approach to jurisprudence. Also referred to as the ‘black-letter’ law.

This approach treats law as closed and gapless system of rules that can be applied logically.

There is no need to take into account any policy or moral considerations.

It treats the law as a system similar to mathematics.

Mathematicians may calculate the time it takes a spacecraft launched from Earth to reach the planet Mars.

They will need information such as the speed of the spacecraft, gravitational forces and planetary positions, but policy plays no part in their calculations.

Legal formalism holds that a solution to a legal problem can be found by a similar process of deduction from known rules and established facts.

Legal formalism holds that policy plays a part in the making of law, but it has no role after the law is made.

Formalism supposedly offers us right and wrong answers.

It encourages rigidity.

It adopts a dismissive attitude toward any analysis of the impact of non-legal factors on the law,

Formalism treats law as an isolated, closed and logical system. That the law is usually found written on paper or, in the modern age, in some form of electronic file

This is the idea of law that most lawyers and lay people have.

It reflects the way lawyers; judges and the law teachers usually go about the business of identifying and explaining the law.

A law teacher instructs students to search for the law in statute books, law reports and commentaries.

Legal practitioners look to these sources to advise their clients and to argue their cases. Judges justify their decisions by the rules found in these written materials, or so they maintain.

American Realism and Positivism Contrasted

The realists were preoccupied with empirical questions; yet their implicit conceptual loyalties were distinctly positivist.

Realists did not reject completely the idea that courts may be constrained by rules, but argued that judges exercise discretion much more often than is generally supposed.

Realists deny the naturalists and positivists view that judges are influenced mainly by legal rules; realists attach greater significance to political and moral intuitions about the facts of the case.

Realists claim that Judges respond primarily to the stimulus of facts.

Decisions are reached on the basis of a judicial consideration of what seems fair on the facts of the case, rather than on the basis of the applicable legal rules.

American realism and legal positivism share one important belief - We must not confuse 'the law as it is' "with 'the law as it ought to be'.

But they differ on the question of how we find 'the law as it is'.

The positivists, according to Hart, look to established primary rules and to secondary rules of recognition that designate law making bodies.

American realists are sceptical about the degree to which rules represent the law. Rules are imprecise by nature; the discovery of facts is an imperfect process.
Realists’ focus is on how courts actually reach their decisions.
Law finding is an exercise in predicting how judges (or other officials) will decide legal disputes.

American Realism and the Question of Morality and Law

The separation of law and morals here is more ambiguous than in legal positivism.

Most realists think that the degree of uncertainty inherent in rules allows judges to make moral decisions.

That this judicial leeway is a virtue of the law, as it allows greater consideration of justice.

They wish courts to use their discretion systematically to improve the law.

Realists' separation of 'is' and 'ought‘ is a temporary divorce. The divorce lasts while the scholars are discovering what courts actually do. The scholars will find that courts actually make moral decisions clothed in the language of logic.

All that the divorce means is that at the initial stage of the inquiry the realists keep their own views of what the courts 'ought to do' separate from what the courts 'actually do'.

The realists, on discovering that the courts in fact engage in law making, recommend that the courts drop their formalistic pretenses and engage in systematic and informed law reform.

The separation is for purposes of inquiry into what the law is.

American Realism is a Movement, not a ‘School’

American realism does rest on any coherent philosophical foundation.

Hence, it is not possible to see American realism as a theory or a ‘school’ as such.

Ideas recognized as “American legal realism” came through writings of a number of legal scholars and jurists - Oliver Wendell Holmes, John Chipman Gray, Herman Oliphant, Underhill Moore, Karl Llewellyn and Jerome Frank.

Realist Movement and Sociology

Dias - American realism is a combination of the analytical positivist and sociological approaches.

It is positivist in that it first considers the law as it is. Reform is the ultimate aim, but a prerequisite to reform is an understanding of the law as it is.

It is sociological because the law as it stands is the product of many factors. Realists are interested in sociological and other factors that influence the law.

Unlike the sociological jurists, however, their concern is with the law rather than with society.

They share with sociologists an interest in the effects of social conditions on law as well as the effect of law on society, but they emphasize the need for a prior revelation of the actual behaviour of courts and lawyers.

Two Strands of American Realism

American realists can generally be divided into two groups:

Rule sceptics and
Fact sceptics.

Rule sceptics pay more attention to the uncertainties of the rules that make up the law. They are preoccupied with the work of appellate courts - the final arbiters of the law.

Fact sceptics are more concerned with the uncertainties that attend the discovery of facts on which a judgment depends. Their focus is mainly on the work of trial courts.

Main American Realists’ Themes

The focus on judicial decision-making:

a proper understanding of judicial decision-making was fact-centered;

judges’ decisions were often based on personal or political biases and constructed from hunches; and

public policy and social sciences should play a large role.

A critique of legal reasoning:

legal rules and concepts were often indeterminate and rarely as neutral as they were presented as being;

hence, judicial decisions must be explained in other terms - judges’ hunches, their personalities, their social environment, and the economic conditions in which they have been brought up, business interests, trends and movements of thought, emotions, psychological, and so forth; and

a different focus for advocacy and judicial reasoning should be encouraged - social sciences and “public policy”.

Characteristic Marks of the Realist Movement

Karl Llewellyn Identifies Nine Points:

The conception of law in flux: This means that law should ‘flow’ with the society which is basically an insistence on forward moving law and judicial creation of law so as to fit the current society.
The conception of law as a means to an end and not an end itself: This means that law should be used to alter behavior instead of being a mere reflection of society’s accepted behavior. Meaning that law should be examined for its purpose and effect to fit societal constant changes.

The conception of society in flux: This means that the society moves faster than law so that probability is always given that any portion of law needs constant re-examination to determine how far it fits the society it purports to serve.
The temporary divorce of Is and Ought for purposes of study: Whereas appeal must always be made to value judgments in order to determine objectives for inquiry itself into what Is, the observation, the description and the establishment of relations between the things described are to remain as largely as possible uncontaminated by what the observer wishes might be or thinks ought to be.

Distrust of traditional rules to describe what courts or people are actually doing which is an emphasis on rules as ‘generalized predictions of what courts will do’
Disbelief that prescriptive rules are the heavily operative factors in producing court decisions.
The belief in the worthwhile-ness of grouping cases and legal situations into narrower categories than in the past. Here, Llewellyn means grouping pending cases into narrower categories for adjudication arguing that by having a properly narrow category of ‘fact-situation’, a rule would be applied with more certainty.

Insistence on evaluation of any part of the law in terms of its effects and insistence on the worthwhile-ness of attempting to ascertain these facts.
Insistence on sustained and pragmatic attack on the problems of law along any of these lines. This refers to a systematic use of law to address perceived problems. Generally according to Karl Llewellyn, legal realistic methods are law-shaping not merely law-determining and reporting. Realists are opposed to any formalistic approach of the law and they insist that the law is unpredicted and highly biased by the thinking of the judge.

A Critique Against Formalism

American realists were critical of “formalism”.

Formalism - the argument that the conclusion followed simply from undeniable premises. Once the proper label was found for an object or action (“contract”, “property”, “trespass”, and so on), the legal conclusion soon followed.

That most judicial decisions should or could be deduced from general legal concepts or general rules, with no attention to real-world conditions or consequences.

Critics labeled it “mechanical jurisprudence”.

Bix – this is one theme that all realists share in common.

The Realisms thus:

attempted to be both practical and pragmatic,

rejected theoretical and analytical approaches to jurisprudential questions, and

looked at what it perceived to be the reality in the question: How does law work in practice?

lay stress on studies of the behaviour of judges.

Specifically, the realists consider that formalism minimizes the power of the judge to make law by representing legal judgments as entailed syllogistically by the pertinent rules and facts.

Realists seek to examine how judicial decisions are reached in reality and discover the factors that contribute towards a judicial decision.

Once the factors that lead to judicial decisions, both non-legal and legal, are deciphered or identified, a prediction can then be made on future decisions.

American Realism and Legal Analysis

Realists attack on formalism could be divided into two separate criticisms:

Argument against the idea that common law concepts and standards were “neutral” or objective”; and

Argument against the idea that general legal concepts or general legal rules determine the results in particular cases.

Argument Against Neutrality or Objectivity of Legal Concepts

Realists argued that the premises lawyers and judges used were open to question, and

Labels and categories hid moral and policy assumptions that should be discussed openly.

Non-legal factors which influence the law include morality, politics, prejudices and policies.

Holmes saw 'policy' as the most fundamental element, though judges were somewhat reluctant to admit their use of it.

He advocated that the judiciary should become more open in their use of policy;

If this is done, we no longer need to look behind the precedents and false mechanical reasoning to see what was really going on.

Argument Against Legal Rules as Determining the Results in Cases.

The arguments have taken two approaches, namely, rule scepticism and fact scepticism.

Rule Scepticism

All realists were sceptical of formal rules as the major deciding factor in legal cases, or the ability of general rules to provide the solution to particular cases.

Holmes: General propositions do not determine concrete cases. ... I always say in conference that no case can be settled by general propositions, that I will admit any general proposition you like and decide the case either way.

For realists, adjudication can rarely be accurately seen as a mechanical, logical deduction from general premises.

Realists’ arguments and strategy:

Judges often have discretion.

Judicial decisions were often in practice determined by factors other than legal rules,

The focus should move from conceptual analysis to policy-based arguments and fact findings.

In the words of Holmes “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

Kaplan, another realist, also states: Judges in fact follow their instincts in deciding cases, making sham references to rules of law; generally, they are themselves unaware of what they are doing, and persist foolishly in believing that they are being obedient to precedent.

There is a vast array of precedents that had been built up in common law systems over the centuries.

So many precedents could not be reconciled in any logical coherent way.

Since precedents were inconsistent, there was no one right answer to a legal dispute, simply a variety of answers from which the judge had to choose one.

Douglas: There are usually plenty of precedents to go around; and with the accumulation of decisions, it is no great problem for a lawyer to find legal authority for most propositions.

There are numerous techniques for interpreting precedents.

Llewellyn – there is a “judicial ability” to avoid precedents that conflict with the judge’s view. A judge may simply find a different ratio to the case in question or may distinguish on the grounds that the ratio is too wide or too narrow for the facts of the instant case. In this way judges downgrade unfavorable precedents whilst boosting those that favour their particular view.

Llewellyn went on to list 64 “available, impeccable precedent techniques” used by judges and academics alike for constructing their scheme of legal precedents and statutes.

The fact that there are many methods of interpreting precedents increases the uncertainty of the law many-fold.

Since there is logical indeterminacy of established rules, no particular proposition could be said to generate a general proposition.

Since a ratio of a prior case can easily be distinguished in a current case, the ratio of that prior case is particular to that case only and it cannot be used as a general rule in future cases with different facts.

Oliphant - all fact situations are unique.

Rodell - classical legal theorists assume that fact situations fall naturally into groups, when it is clear that all cases have a unique set of facts.

Placing the facts of previous cases into a particular category involves a value judgment by the judge or commentator, a judgment which can only be based on extra-legal factors.

The uniqueness of the facts gives judges a large amount of leeway in determining which general principles shall apply.

The aim of rule scepticism was:

Ø to show that simple reliance on rules was a fallacy and

Ø that judges either consciously or unconsciously continue to play the game by paying lip-service to rule formalism.

Judges and lawyers do this because they are educated in that fashion.

They are not prepared to make clear the real reasons for their decisions because it would be seen as a betrayal of the ideal of the rule of law, the idea that law is neutral and objective and not dependent upon any personal factors.

For the realists thus:

Ø the ideal of a logical and coherent system is impossible to achieve and in fact the judge is not bound by any antecedent rules.

Hence, a judge should not feel hidebound by established precedent because there is no logical reason that dictates a choice of one precedent over another;

Ø there is only the political need to respect the ideal of the rule of law, so the judge instead of being backward looking should look forwards and make policy-based decisions that are best for society.

Rule Sceptics Commitment to Rules and Legal Certainty

Notwithstanding their aforementioned critical and sceptical position, the rule sceptics, remained committed to the idea that the aim of the judicial decision-making was in part to increase legal certainty or “predictability”.

They “consider it socially desirable that lawyers should be able to predict to their clients the decisions in most lawsuits not yet commenced”.

Real Rules as Opposed to Paper Rules

Rule sceptics believed that paper rules (i.e. those formal rules found in judicial decisions and in books), were unreliable as guides in the prediction of decisions – products of logic.

They should be replaced by the real rules (i.e. those that evolve out of psychology, anthropology, sociology, economics, politics, etc.).

Real rules could provide a better description of uniformities in judicial decision-making and, therefore, reliance on the real rules would yield greater certainty.

Fact Scepticism or Experimentalism

The chief proponent of fact scepticism or experimentalism was Judge Jerome Frank.

For him:

Ø certainty in the judicial decision-making the rule sceptics hoped and advocated for was not possible in relation to trial courts, and

Ø the writings of the rule sceptics concentrated on the upper courts, not the “sharp end”.

In other words, rule sceptics are concerned simply with the appeal courts’ decisions where legal rules and precedents take on a life of their own without much regard to non-legal factors, or indeed to the question of whether the facts arrived at in the lower court were actually the real facts.

The primary interest of the fact sceptics lies in the trial courts.

No matter how precise or definite may be the formal legal rules, no matter what the discoverable uniformities behind these formal rules, it is impossible, and will always be impossible, to predict future decisions in most (not all) lawsuits, not yet begun or not yet tried.

This is because of the elusiveness of the facts on which decisions turns.

Example by Frank:

Even if the rules are clear, such as not parking on a double yellow line, or obeying the speed limit or driving on the left-hand side of the road, it is still not possible to predict with certainty which way the trial court will decide simply because of the elusiveness of the facts.

Frank identified two main groups of elusive factors:

The trial judge in a non-jury trial or the jury in a jury trial - must learn about the facts from the witnesses; and witnesses, being humanly fallible, frequently make mistakes in observation of what they saw and heard, or in their recollections of what they observed, or in their court-room reports of those recollections.

The trial judges or juries, also human, may have prejudices - often unconscious, unknown even to themselves - for or against some of the witnesses, or the parties to the suit, or the lawyers.

Frank denied that there is this certainty in the judicial process and that if his model is followed there is no way in which predictions can be made.

He also denied that the rule sceptics could include within their real rules the second set of elusive elements he identified, which included the racial, religious, political or economic prejudices of the judge and jury.

Some of these prejudices may be uniform so that it is possible to say that such a judge does not favour women, or that a juror from such and such a background will not favour blacks, but it is impossible to include all the hidden, sometimes unconscious biases of judge and jurors. Such idiosyncratic biases cannot be accounted for in an analysis of behavioral patterns.

Further uncertainty can also be found in the process by which a judge determines a particular fact to be a material fact.

In a trial court, the law and the facts become intertwined - there is not a simple application of the law to the facts; instead the law emerges in an adversarial manner just as the facts do.

When the jury comes to its verdict, they do not distinguish between law and fact, and in this state of confusion they decide the case on other grounds.

These mistakes are simply compounded in the appeal court which usually relies on the facts as adopted by the trial court.

Evaluation of Frank and Facts Sceptics

Frank may have gone too far in making his point.

It simply is not the case that all questions of fact are unpredictable as Frank describes. Within the bounds of the rules of evidence, a professional adviser can make a fairly firm prediction in most cases of what facts the court will accept as proved, and what rules of law are to be applied to them.

Many cases never really get to the stage of disputed facts. How is fact scepticism then relevant to a defendant pleading guilty in a criminal case or only contesting quantum not liability in a civil case?

Some Major Realist Thinkers Considered

Oliver Wendell Holmes Jr and the Birth of American Realism

Holmes was a Harvard law professor, philosopher and judge.

His thought was influenced by the British empiricists, American pragmatists such as William James, John Dewey and Charles Sanders Peirce, the historian Henry Maine and the evolutionary biologist Charles Darwin.

The following four themes run through Holmes' jurisprudence:

The law is an evolutionary process. It is the product of experience and not logic. It reflects society's adaptation to a changing world.
Courts play a vital role in the evolution of the law by actively reforming the law to suit changing conditions. Decisions of the appellate courts are in fact, legislative in nature, although they are presented as logical deductions from established rules. Courts make new law for new conditions.
Statutes depend for their efficacy on the courts and hence they are not law until enforced by the courts.

Law, for the above reasons, turns out to be nothing more than predictions about how courts will decide a dispute.

Hence, for Holmes (and the other realists) the notions of legal duty and legal right were not to be answered by fruitless searches for the source of obligation, whether legal or moral, but by means of a simple predictive exercise.

For most realists this was simply a prediction of how the courts would react to particular behaviour.

In Holmes own words:

The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas … [is] to consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterwards. But … a legal duty is nothing but a prediction that if a man does or omits certain things, he will be made to suffer in this or that way by judgment of the court; and so, of a legal right.

In a more precise term, Holmes asserts that such is the perspective of law of the bad man.

Holmes introduced a putative predictive approach to the law. That law, or more correctly a legal duty, was simply a prediction that if a person behaved in a certain way he would be punished. This was looking at law from the perspective of the ‘bad man’

... if we take the view of our friend the bad man, we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law

Karl Llewellyn

Llewellyn is often seen as the central figure in the American realist movement (and a rule sceptic).

His writings, spanning the most productive period of realism, contained within them not only the core themes for the movement, but also developed from being very critical of the judiciary to taking on a more constructive attitude.

In 1931 he outlined the major themes of realism:

Judicial decision - Llewellyn insisted upon the reality of judicial lawmaking and indeed saw it as essential in matching the law to the rapidity of social change.

Law for Llewellyn was a means for the achievement of social ends.

The realist’s concern for the consequences of legal decisions was matched, according to Llewellyn, by their distrust of legal rules.

That legal rules do not describe what the courts are purporting to do nor do they describe how individuals concerned with the law behave.

That legal rules as found in books and emphacise in judicial decisions do not accord with reality

Understanding of law - Llewellyn advocated a different approach to the study of law. He recommended grouping cases and fact situations into narrower categories than had been the past practice. In this way rules can be made sharper.

He saw that the use of general rules to cover a vast array of different situations produced a distortion in the form of decisions that have adverse effects on the community.

To apply the same rules to different situations is counter-productive because it ignores the fact that different considerations ought to apply.

To apply the same principles of frustration in contract law to shipping cases involving the blockage of the Suez Canal in 1956, and to employment contracts in the 1990s serves no useful purpose except to please those formalists who insist on false uniformity in order to satisfy their desire to see law as a system isolated from the events it is purporting to control.

The requirement that law must be evaluated in terms of its consequences led to Llewellyn developing a sophisticated analysis of the purposes of law. He described the basic function of law as ‘law-jobs’.

Law as an Institution and “Law-jobs” - law is an institution which is necessary in society and which is comprised not only of rules but also an ‘ideology of pervasive and powerful ideals which are largely unspoken, largely implicit and which passed unmentioned in the books.’

The institution of Law

The institution of law in modern society is an extremely complex one. It consists of

a body of rules organized around concepts and permeated by a large number of principles; certain elaborated techniques such as the use of precedent;

an ideology, consisting of a body of far-reaching values and ideas;

a host of practices, some very flexible, and others quite rigid, which determine how certain things within the legal system may or may not be done.

Hence, for Llewellyn jurisprudence should be concerned with looking at the whole, including the important ideals, instead of merely concentrating on the rules.

Law has a job to do within a society if it is to survive and achieve its purpose. Additionally, it is also important to see that these jobs are effectively carried out.

Summary of law jobs:

The disposition of the trouble cases. A wrong. A grievance. A dispute.
The preventive channeling of conducts and expectations so as to avoid trouble and together with it the effective reorientation of conducts and expectations in similar fashion.
The allocation of authority and the arrangement of procedures which mark action as being; which includes all of any constitution and much more.

The positive side of law’s work is the net organization of society as a whole so as to provide integration, direction and incentive.
‘Juristic method’ to use a single slogan to sum up the task of handling the legal material and tools and people developed for the other jobs to the end that those materials and tools and people are kept doing their law-jobs, and doing them better, until they become a source of revelation of new possibility and achievement.

‘CRAFT’

In order to do a job well, for Llewellyn, societies will always develop an institution for the purpose. He calls such an institution “law and government”.

This institution is made up of “craft”.

A craft consists of a kind of “know-how” among a body of specialists who are engaged in performing certain of the jobs within the framework of an institution.

The practice of the law is the practice of a set of crafts, and of these, the most important is what is frequently called juristic method (advocacy, counseling, judging, law-making, administering, mediation, organization, policing, teaching, scholarship).

In fact, “craft’ itself becomes a minor institution with judicial reasoning becoming the pre-eminent craft.

Law and Morality - Llewellyn shared with other American realists the belief in a temporary divorce between law and morality. The realists' quest is a moral one: to help improve the law.

The Grand Style - In 1959 Llewellyn put forth his views about the Grand Style or manner of reason.

He believed that the appellate courts of the United States were at their glorious best during the first half of the 19^th century, when the Grand Style of judicial reasoning was dominant.

The judicial lustre began to fade in the latter part of that century and by 1909 its practice was all but dead. Llewellyn saw a revival of the tradition at the time he spoke, and encouraged its restoration.

So, what is this admirable Grand Style?

The style, in essence, is to test each decision against life wisdom, and where necessary to vigorously recast precedents in the light of that wisdom.

Jerome Frank

Generally associated with the distinction he drew between ‘rule-sceptics’ and ‘facts-sceptics’.

For Frank, most realists, in their preoccupation with appellate courts, missed the important aspect of unpredictability in the judicial process: the elusiveness of facts.

The various prejudices of judges and jurors (‘for example, plus or minus reactions to women, or unmarried women, or red-haired women, or brunettes, or men with deep voices, or fidgety men, men who wear thick eyeglasses, or those who have pronounced gestures or nervous tics’) often crucially affect the outcome of a case.

The main thrust of Frank’s attack was directed against the idea that certainty could be achieved through legal rules. This, in his view, was absurd. If it were so, he argued, why would anyone bother to litigate?

We want the law to be certain, he suggested, because of our deep need for security and safety which is endemic to children.

In the same way as a child places his trust in the wisdom of his father, so we seek in the law and other institutions a similar comforting security. We should, he urged, grow up!

The Legacy of American Legal Realism

First, the great champions of American realism initially were highly respected serving judges such as Holmes, Cardozo and Hutcheson, who were justifying their own judicial philosophy.

Second, the US Constitution bestows on the federal judiciary, and in particular on the US Supreme Court, a political status that is unknown in other common law countries.

This is partly because of the constitutional structure of divided powers and the limitations on legislative power cast by the American Bill of Rights.

The court therefore has greater capacity to heed the realist doctrines.

Third, the realist challenge to the autonomy of law was certainly an important precursor of the critical legal studies and postmodernist approaches to law and the legal system.

The relationship between the realist movement and sociological jurisprudence is also strong one.

By demonstrating the limitations of a doctrinal account of law without a proper empirical investigation of the manner in which legal doctrine functions in society, the American realists unquestionably paved the way to the sociological approach to law.

Legal positivism owes a large debt to American realism that is rarely acknowledged.

American realism jolted legal positivism out of its complacency by questioning widely held assumptions about the nature of rules.

Holmes exposed the weaknesses of the command theory of law long before Hart.

Realism prompted the rethink of legal positivism that was brilliantly undertaken by scholars like Hart and Raz.

It forced positivists to distance themselves from formalism and to reconsider the nature of legal language and judicial discretion.

It may even be true to say that Holmes made Hart possible.

Legal realism's influence on the courts of other common law countries has been variable but modest. British and Australian courts have been touched only lightly by American realism.

TOPIC 6: HISTORICAL AND ANTHROPOLOGICAL JURISPRUDENCE

· Introduction

· Von Savigny School of Law

· Henry Maine

INTRODUCTION

Unlike manna, the law does not fall from the sky. It tends to develop as an expression of a society’s peculiar culture, values and mores.

Historical school shared the positivist’s misgivings about the abstraction of natural law, though it rejected their view that law was manufactured by calculated or deliberate preference. Law, it contended, was the result of historical development.

A related theory of the nature of law is based on the contention that it should be examined not just in modern states but also in primitive ones and in non-states contexts e.g. voluntary clubs and societies.

Legal theory should take account of these other contexts or risk being incomplete.

The historical school of jurisprudence manifests the belief that history is the foundation of the knowledge of contemporary era.

Two jurists who researched extensively in this area – Friedrich Carl von Savigny (1799 – 1861) and Sir Henry Maine (1822 – 1888) – will be the subject of examination.

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

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

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.

To him, law grows with the growth and declines with the decline of the people.

He traces the connection between custom and legislation and concludes that law is best fulfilled when it reflects the custom of the people.

INTRODUCTION ON VON SAVIGNY SCHOOL OF LAW

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

The basis of Savigny’s conviction derived from his experience of the French Revolution and the Napoleonic conquests.

In the aftermath of the destruction of the French, revolutionary ideology guided by the peoples’ reasoning flourished.

To Savigny and other like minds, this was unacceptable, essentially because embracing such philosophy would make mincemeat of the tradition and mores of the people.

In fact, such idea would denigrate the traditional institutions to which the people were accustomed.

According to him, the essence of the law would be discoverable through the understanding of the spirit of the people, the volksgeist.

Savigny’s tract entitled Of the Vocation of Our Age for Legislation and Jurisprudence (1814) summarized his historical approach to law as follows:

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

He saw law as reflective of the spirit of the people. 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 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.

Unlike the claim made by natural law theorists, Savigny canvassed the view of legal relativism. In other words, there is no universal law as every law is culture- specific and limited by time, space and geography.

The implication of this position is that law is not as durable as the natural law school suggests and, more important, its contents are a function not of metaphysical demands but of the exigencies of the society in question.

Historical approach to law as canvassed by Savigny:

The concept of received law is anathema;
Law is inferior to the custom of the people. Therefore, custom of the people must be their laws;
Law personifies the people, and signifies a paradigm of their values;
There is no universal law. The universality of law is limited by geography and culture;
Law is not static. It is amenable to development;
There is no law giver. Law comes from the people.

According to him, the growth of law is a function of the interface or interaction between one generation and another generation.

The strength or weakness of the law is traceable to the people.

Law and language flourish when the people flourish and die when the people lose their individuality.

The morale here is that law exists to serve humankind, not the other way round.

Consequently, there should be no room for unjust laws or laws that are inconsistent with the aspiration of the people.

CRITICISMS OF VON SAVIGNY

Savigny was an apostle of home-grown law, law fashioned after the character and nature of the people. There is much utility derivable from such a law.

First, the people would be used to the laws by which they are governed. Second, flowing from the first point, the State may not need to spend much on law enforcement since the people or most of them would, anyway, abide by societal laws. But how contemporarily realistic is Savigny’s historical perspective to law?

His theory is subject to criticisms for many reasons.

First, the volkgeist is perceived by many as fictional, incapable of proof, and of little value in jurisprudential analysis.

Although Savigny’s nationalistic veil might have endeared him to like minds, his definition or description of the volkgeist – the nucleus of his proposition – as resembling ‘a spiritual communion of people living together, using a common language and creating a communal conscience’ was neither here nor there.

In heterogeneous societies, it would be an uphill task to locate that ‘communal conscience.’ Perhaps, his theory was meant to apply to highly homogenous societies but he did not make this clear.

Second, Savigny 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 such experience.

Third, Savigny has been cited for inherent inconsistency. He advocated the nationalism of laws. As a German, this meant that German legal system must be based on German customs.

Ironically, however, he recommended a refined system of Roman law for German people. This was absolutely against the intent and purposes of the volkgeist because by no stretch of the imagination were Rome and Germany one and the same thing.

In contemporary times, the irrelevance of Savigny’s advocacy is glaring. This is because there is mutual interdependence so that, according to need, countries freely import foreign laws into their legal systems.

HENRY MAINE’S HISTORICAL SCHOOL OF LAW

Stages in Legal Development

Maine’s deep knowledge of early society resulted in his emphasis on man’s deep instincts, emotions and habits in historical development.

According to him, law can be understood as a late stage in a slow-evolving pattern of growth.

He believes there are three stages in legal development in early societies – law as the personal commands and judgements of patriarchal rulers; law as custom upheld by judgements; and law as code.

In the first stage, absolute rulers dominated. It was the age of the divine rights of kings, where the king could do no wrong.

System of rulership was absolutist and draconian. There were no principles governing governance; only the whim and caprice of the king reigned.

The second stage is heralded by the decline of the power and might of patriarchal rulers. In their place, the oligarchies of political and military rulers emerged.

The oligarchies claimed monopoly of control over the institutions of law.

Notice that many African States could be said to have experienced this under military regimes where rulers of the period manipulated the legal system through decrees and edicts.

Maine maintains that the judgements of the oligarchies evolved or solidified into the basis of customs.

But the customs are largely unwritten, giving interpreters the opportunity to enjoy a monopoly of explanation.

In the third stage, which represents the breaking of the monopoly of explanation, codification characterizes the legal system. Examples include the Roman Twelve Tables and Solon’s Attic Code.

Static and Progressive Societies

Maine further propounded that for the purpose of the development of law, society can be categorized into two: static society and progressive society.

Static or stationary societies did not move beyond the concept of code-based law. In this society, reference to the code answered all legal questions.

According to Maine, members of the society were lulled into the belief in the certitude of code and were, therefore, unwilling to reform the law.

On the other hand, progressive societies were to be found in Western Europe. These societies were dynamic and amenable to legal reform. They brought about the development and expansion of legal institutions.

In the development of law in progressive societies, Maine identified the characteristic use of three agencies – legal fictions, equity and legislation.

Legal fictions are mere suppositions aimed at achieving justice by overcoming the rigidities of the formal law.

According to Maine, legal fictions help to ameliorate the harshness of the law. A classical example he gave was the institution of the Roman fiction of adoption.

He called equity a secondary system of law. It claimed a superior sanctity inherent in its principles which exist side by side with the law. In many cases, it could displace the law.

Legislation represents the final development of the law. It is an institution through which various laws in the society are reduced into writing or codes.

Miscellany

The raw material Maine used for his legal analysis was Roman law. In Roman law, Pater Familia was the only person invested with capacity to contract.

He alone could act for and on behalf of his wife, children and slaves.

Subsequently, there was development from pater familia to familia and to persona, the highest form of development of the person.

Maine also had commented on ‘status’ and ‘contract.’

He said that “the movement of progressive societies has hitherto been a movement from status to contract.”

In explaining this statement, Maine said that in early times an individual’s position in his social group remained fixed; it was imposed, conferred or acquired. He just stepped into it. He accepted such fate as he found it. He could do nothing about it.

Later on, however, there came a time when it was possible for an individual to determine his own destiny through the instrumentality of contract.

No longer was anything imposed on him from external forces; he was now in charge: from slavery and serfdom, from status determined at birth, from master-servant relationship to employer-employee contract.

The morale is that society moves from status to contract. In ancient law, (status inheritance) was of the essence but in modern society it is consideration (contract).

Criticisms of Maine

Maine is criticized for oversimplifying the nature and structure of early society for the following reasons:

Early society does not show an invariable pattern of movement from the three- stage development of law – from personal commands and judgements of patriarchal rulers through law as custom upheld by judgements to law as code.

The so-called rigidity of the law has repeatedly been challenged by contemporary anthropologists who are of the opinion that primitive peoples were adaptable and their laws flexible.

Also, there were matriarchal societies just as there were patriarchal societies.

Furthermore, it has been observed that status does not necessarily gravitate to contract. Rather, the opposite development has been possible.

For example, social welfare legislation in advanced countries is status-based. In the US, ‘affirmative action,’ a policy that is predicated on Afro-Americanism, is status- based. Also, in Canada, the status of a single mother is recognized in law.

ANTHROPOLOGICAL JURISPRUDENCE

Maine exercised significant influence over what is now called anthropological jurisprudence or legal anthropology.

‘Law’ in Tribal Societies

Primitive tribal societies appear, at first blush, to lack ‘law in the form that it exist in so-called advanced societies.

The apparent absence of legal institutions – courts, law enforcement authorities, prisons, legal codes – led to the conclusion that these communities were governed by customs rather than law. This has been shown to be erroneous.

Empirical research reveals that though their precise form, structure and function may differ, their institution are not dissimilar from the advanced societies.

Some of the key contributors to this branch of legal theory are:

Bronislaw Malinowski

He rejected Maine’s evolutionary approach for its failure to comprehend the nature of governance and social control in primitive societies.

He advanced an ethnographic analysis that required extensive field work in order to ‘study by direct observation the rules of custom as they function in actual life’.

While Maine regarded primitive societies like Trobriand Island off Papua New Guinea, as subject to stagnant custom, Malinowski’s meticulous ethnographic methodology yielded an intricate arrangement of criminal and civil regulation, as well as a system of enforcement.

He also attempted to study the cultural milieu of their law, and to understand its rationality. He showed that the Trobriand Islanders’ society was organized around the concept of ‘reciprocity’.

Notwithstanding the lack of ‘central authority, codes, courts and constables’ order was maintained by, for example, ostracizing an individual who failed to make a payment that was due.

In other words, the essence of ‘law’, is its observance or practice: function rather than form. For example, he observed among the islanders each of those who engage in fishing carried out a specific job in manning the boat that they jointly owned. As a result, each acquired a right to a share of the catch. Should a fisherman constantly fail to attend the fishing trip, he will lose his porition of the catch.

E Adamson Hoebel

Not strictly speaking a legal anthropologist but in collaboration with Llewelyn published a very important interdisciplinary studies of tribal law which is significant for three reasons:

It provides a lucid account of the case study as the principal method by which to analyse tribal law;
It closely examines the manner and form in which disputes are settled, investigating specific examples of disagreements or ‘trouble cases’ and demonstrating how ‘law-jobs’ were carried out in society;
It seeks to distinguish law from other related forms of social regulations, such as religious norms.

Max Gluckman

Developing the ‘trouble case’ approach, Max revealed a number of surprising similarities between the conceptual tools of the Barotse of Northern Rhodesia (Zambia), a primitive tribe and advanced Western legal systems.

In particular, it emerged that there existed in their judicial process the idea of the ‘reasonable man’ – a lynchpin of the common law.

Other parallels included the role of courts as regulators of established relationships and creators of new ones, the maintenance of certain behavioural norms, the punishment of offenders, the notions of rights, duty, and injury, the distinction between custom and statute, responsibility, negligence, guilt, ownership and trespass.

Search This Blog

JURISPRUDENCE II NOTES

Labels

Comments

Post a Comment