GHANA INSTITUTE OF MANAGEMENT AND
PUBLIC ADMINISTRATION
GIMPA SCHOOL OF LAW
JURISPRUDENCE AND AFRICAN LEGAL THOUGHT (1)
COURSE OUTLINE
2017-2018
Course Lecturer: Rev. Dr. William Edward Adjei, Room 12, First
Bungalow
[email protected]
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1. COURSE DESCRIPTION
Jurisprudence means the theory or philosophy of law. Its general aim is to give an
account of the logic of law. Jurisprudence also seeks to address questions such as:
what is law? Is legal argument distinct from moral argument? Is law rationally
constraining? What is the role of the judge in applying law? Can law be applied
neutrally? How should law be interpreted? What is the basis of legal obligation? How
do we explain change in the law? Approaching jurisprudence in this line is intended to
provide an engaging critical study opportunity, one that leads you to challenge your
previous conceptions, that leads you to embrace insights from a diverse range of
scholars and that leaves you with a deeper, well-supported understanding of the
philosophy of law. This in-depth foundational understanding will benefit you in other
legal studies (or related) courses. For example, in the study of African legal system,
one would ask: Does any philosophy to African law exist? Did pre-colonial African
societies have the notion of law? This is against the view that “law” as a concept was
alien to pre-colonial societies.
2. JUSTIFICATION
The study of jurisprudence has always swung between law and the social sciences. For
the fir time, students are given the opportunity to learn law in terms of not only its legal
elements but as a social science that allows them a glimpse into the several schools of
jurisprudence. Despite their differing persuasions, they have elements that are similar and
the student is able to harness these elements into an opinion that he/she will use in his
justification of the overall purpose of his study as a law student. He is also able to have a
philosophical understanding of some of the most commonly used legal concepts in his
practice. Unfortunately, these concepts are also some of the least understood. This lack of
understanding comes from a lack of specific analysis of their elements. It is hoped that
this course will put this confusion to rest thereby making the budding legal practitioner a
more rounded solicitor/advocate.
3. COURSE OBJECTIVES
The aims and objective of this course is to give the students a foundational basis for the study
and understanding the basic contents of jurisprudence and legal theory thereby preparing
them for a more complex theoretical content in the second semester of the academic session.
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As the course progresses, students would be prepared to understand that this subject is more
about questions and not answers. The pedagogy will be more interactive than lecture centric.
The subject is divided into two parts; first part concerns the theories and the second part is
about the analysis of some important fundamental legal concepts. We shall begin by
reviewing classic works in two distinct jurisprudential traditions: (a) legal positivism and; (b)
natural law. As we explore these concepts, students are to understand the ways in which these
approaches to law conceptualize the relationship between “law in theory” and “law in
practice”. We conclude with a series of inquiries into more discrete topics, such as the
relationship between law and morality and the nature of rights and duties, and other legal
concepts.
LEARNING OUTCOMES:
Thus, this course is designed so that students who successfully complete this course
should be able to achieve the following outcomes. The student should be able to:
1. Have a basic understanding of the relation of law to society both in terms of its
scope, nature, applicability and its eternal purpose;
2. Understand, explain and evaluate the major schools of legal philosophy;
3. Understand, explain and assess some of the major jurisprudential debates that
have preoccupied legal philosophers;
4. Understand how certain socio-philosophical approaches to law have shaped the
way African societies and their legal systems have arranged itself in the past;
5. Think critically about law as a social and political entity, particularly in the
context of recent debates about law in contemporary African society;
6. Discuss the development of critical legal theory and the way in which different
critical legal theories attack liberalism.
4. COURSE REQUIREMENTS
Attendance expected and course work required
Students are expected to attend all classes. If a student is unable to attend he or she should
inform the course tutor, if possible prior to the lectures.
Members of the class are required to participate fully and actively in class, in group
discussions and study group activities. They are required to prepare conscientiously for each
class meeting and to make an active contribution to the discussion. Students are also required
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to sign up for an email account and be ready to research on the internet and further make
inquiries from organisations related to the particular topics in the course for relevant
information on jurisprudence and socio-cultural aspects as they affect law and justice and the
descriptive perception of both in Ghana, developing countries as well as the other Western
countries with more developed jurisprudential mien.
It should be stressed that, in addition to these formal meetings of the class, the course tutors
are anxious that students should feel free to call on them at any mutually convenient time to
discuss either points of difficulty or aspects of the course which they would prefer to discuss
privately. At the end of the teaching period and prior to the examination, the tutors will be
happy to deal with questions and queries from any student. Candidate should make an
appointment (at any reasonable time prior to the examination) to discuss such queries with
them.
5. METHOD OF TEACHING
Lectures will be delivered using a combination of teaching styles which include the Socratic
and Semi-Socratic methods, using practical questions and real life cases and examples as a
basis for explaining concepts. At the end of each class students are given questions for
consideration to be discussed in the next class. In the case, students are picked randomly to
comment on any of the topics. Overhead Projector and Power-point slides will be used.
Discussion through group format will also be used and seminars present students during the
duration of the course to expose them to the rudiment of paper presentation.
6. COURSE EVALUATION FORM
Each student will be asked at the conclusion of the course to complete an anonymous Course
Evaluation Form. Please complete these as conscientiously as possible as they are of great
assistance to teaching staff in letting them know about aspects of the course which were
thought or organised well and those aspects where improvement may be necessary.
GRADES: will be based on class participation as well as 2 tests – 1 class test and 1 mid
semester examination (making up of 50%), and the final examination (50%).
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7. COURSE OUTLINE
PART 1: IMPORTANT LEGAL THOUGHTS
A. Nature, Definition and Scope of Jurisprudence
1. What is Jurisprudence
2. Concept of law
3. Various Definitions
4. Functions of Law
5. African Legal Thought: Introduction
Objectives
To help students deal with the importance of the study of jurisprudence
with references to the functions of the study of jurisprudence of other non-
law sphere;
Examines the inadequacies of definitions and descriptions of what
jurisprudence entails;
Strives to explain to the students the overall study of jurisprudence in
terms of its uses, applicability, functions and purposes.
Reading List
Freeman, M.D.A, “Lloyd’s Introduction to Jurisprudence”, Eighth Edition, (2008)
Sweet & Maxwell, pp. 1-23
Campbell, A.H., “A Note on the Word Jurisprudence”, (1942) 58, LQR, 334
Gushier A. J “Introductory Readings in Philosophy of Law” the Edwin Mellen Press,
N.Y., 1988, PP. 18-108
Dias, R.W.M., Jurisprudence, 4th edition (Butterworth & Co. publishers Limited,
Boston, pp. 1-28
Hart, H.L.A., “Definition and Theory in Jurisprudence” (1954) 70 Law Quarterly
Review, 37
Questions for Consideration
1. Critically examine the statement that law is the command of the sovereign and state
and whether this concept applies to Ghana legal system?
2. Judges are the discoverers of law and not the creators of law: Comment?
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B. MEANING OF LAW
1. Essentialism
2. Words or Facts
3. Law and Morals
4. Morals as part of Law
Objectives
In defining law using various approaches, students are expected to factor
in the relation of law to other social sciences and they must equally be
aware of the impact of the early periods of theorization, the Sophists, the
Greeks, the Romans, etc on the emergence of the current meaning of law.
Reading List
Freeman, M.D.A., “Lloyd’s Introduction to Jurisprudence”, Eighth
Edition, (2008) Sweet & Maxwell, pp. 33-58
Fuller, L.L., “The Morality of Law”, 2nd Edition, (2000) Universal Law
Publishing, pp. 33-91
Dias, R.W.M., “Jurisprudence”, 4th edition, pp. 1-28
Funso Adaramola, Basic Jurisprudence, 3rd Edition, Raymond Kunz
Communication, Lagos, 2004, pp. 1-15
Simpson, A.W.B., The Common Law and Legal Theory: Oxford Essays in
Jurisprudence, 2nd Series, Clarendon Press, Oxford, pp. 77-99
Raz Joseph, 1986: The Morality of Freedom, Oxford: Oxford University
Press
Raz John, The Authority of Law: Essays on Law and Morality (Oxford
Clarendon Press, 1979) at 47-50
Wikipedia, < http://en.wikipedia.org/wiki/jurisprudence>
The Internet Encyclopaedia of Philosophy
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Questions for Consideration
1. What are the various schools of Jurisprudence?
a. Explain them in brief
b. Point out the difference between Analytical and Historical school of
Jurisprudence.
C. GENERAL THEORIES OF LAW
The Development of Theories of Natural Law and Natural Rights Theories
1. What is Natural Law
2. The Attractions of Natural Law
3. Greek Origins, jus gentium and Medieval Period
4. Grotius and International Law
5. Natural Law and Social Contract
6. John Locke: Natural Rights, the Social Contract and Principle of Consent
7. Kant’s Argument for Universal Moral Principles
8. Dworkin and Hard Cases
Objectives
To understand the several Natural Law protagonists and scholars, and their
persuasions while at the same time focusing on the consequences of the
postulations to the African legal systems and Ghana in particular.
Reading List
Hart H.L.A, “The Concept of Law”, Oxford University Press, 2nd Edition,
2002, Chapters 2 & 3
Tuck, R. (1979), Natural Rights Theories: Their Origin and Development,
Cambridge: Cambridge University Press
Freeman, M.D.A., “Lloyd’s Introduction to Jurisprudence”, Eighth
Edition, 2008, Sweet & Maxwell, pp. 137-228
J.O. Ijalaiye, Nigerian Essays in Jurisprudence: Natural Law and the
Nigerian Experience, MIJ Publishers, Lagos, 1991, p. 35
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A.W.B. Simpson, Oxford Essays in Jurisprudence, 2nd Ser., Clarendon
Press, Oxford, pp. 44-76
Keith Evans, Advocacy at the Bar: A Beginners Guide, Blackstone Press
Limited, London, 1983 (Read generally)
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, pp.
19-48
Funso Adaramola, Basic Jurisprudence, 3rd Edition, Raymond Kunz
Communication, Lagos, 2004, pp. 15-39
Finnis J. (1980) Natural Law and Natural Rights, Oxford: Oxford
University Press
Finnis J. (1998) Natural Law, Routledge Encyclopaedia of Philosophy, E.
Graig, London, Routledge
Buckle, S. (1993), Natural Law: A Companion to Ethics, P. Singer,
Oxford, Blackwell, First Published 1991
d’Entreves, A.P. (1970) Natural Law: An Introduction to Legal
Philosophy, London, Hutchinson University Library, Second Edition, First
Published 1951
Questions for Consideration
Law is the body of principles recognized and applied by State in administration of
Justice: Discuss?
D. CLASSIC ANALYTICAL POSITIVISM:
‘Is’ and ‘Ought’ Propositions – Law as it is and as t ought to be
1. Jeremy Bentham’s Concept of Jurisprudence
2. The Command Theory of Law
a. The Command
b. The Sovereign
c. The Attachment of Sanctions
d. The Benthamite Complete Law
3. The Viability of Command Theory
4. The Question of Public International Law
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Objective
To acquaint the student with one of the most powerful schools of Jurisprudence,
generally called the Positivist School and its command of the sovereign principles.
This includes the study of John Austin and Hans Kelsen.
Reading List
Hart, H.L.A., The Concept of Law, Oxford University Press, Second Edition, 2002,
Chapters 2 & 3
Fitzgerald, P.J., “Salmond on Jurisprudence”, Twelfth Edition, N.M. Tripathi Pvt.
Ltd, 1999, pp. 25-35
John Austin, Campbell and Thomas ed., The Province of Jurisprudence Determined,
Ashgate Publishing Company, Vermont, 1998 (Read generally)
Lacey, Nicola (2002) Modern Positivism: H.L.A. Hart and Analytical Jurisprudence,
In Penner, James E., Schiff, David and Nobles, Richard, (eds.) Introduction to
Jurisprudence and Legal Theory: Commentary and Materials, Oxford University
Press, Oxford, pp. 143-189
E. MODIFIED POSITIVISM
1. Hart’s Gunman and Critique of Command Theory
2. The Importance of Rules
a. Obligation and internal Aspects of Rules of Recognition
b. The Union of Primary and Secondary Rules
c. The Basis of the Rule of Recognition
d. Legal System and the Importance of Officials
3. Public International Law in Hart’s Theory
4. Abuse of Law: The Debate between Hart and Fuller
Reading List
Hart, H.L.A. The Concept of Law, Oxford University Press, Second Edition, 2002,
Chapters 5, 6 & 10
A Movie “Judgment at Nuremberg”
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F. HISTORICAL SCHOOL OF JURIPRUDENCE
1. Concepts of Customary Law
2. An African Unitary Philosophy
Objectives
To assist student learn about the Historical School with specific emphasis on the
African content of customary law. The issue here is: where does the individual stand
in the African philosophy of the sacrifice of individual rights to that of the
community? For example, see relevant case-law below.
Edet v. Essien 1932 11 NLN 47; and
Ejanor v. Okenome 1976 6 UILR 378
Reading List
L.B. Curzon, Jurisprudence, 2nd edition, Cavendish Publishing Limited, London, pp.
129-137
Glanville Williams, Learning the Law, 11th edition, Stevens and Sons, London, 1992,
pp. 112-138
Keith Evans, Advocacy at the Bar: A Beginners Guide, Blackstone Press Limited,
London, 1983 (Read generally)
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, pp. 81-101
G. SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
1. Social Origins of Sociological and Realist Theories
2. The Conceptual Scope and Function of Law under Sociological and Realist
Theories
3. The Sociological School and Legislation
4. The Sociological School and Interpretation of Constitutions
5. Critique of Sociological Legal Theory
6. Characteristics of African Law: Its Underlying Philosophy
7. Pre and Post Colonial Africa and African Law
8. Limitations to African Law in the Contemporary World
9. African Law Versus Common Law
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Objective
The section focuses on a comparative analysis of several jurisdictions where several
aspects of customary law are practiced in Africa and assists the student in finding out
any underlying philosophy in this genre of law.
Furthermore, the Sociological school is examined with particular reference to its
scholars, its postulations and its effectiveness. It is about law and its relationship to
society. It appreciates that man is a social animal and lives in command in the society.
Reading List
Hunt, Allan, The Sociological Movement in Law (Philadelphia: Temple U.P. 1978)
John Ademola Yakubu, Colonialism, Customary Law and the Post-Colonial State in
Africa: The Case of Nigeria
Muhtar Etudaiye, “The Relevance of the Sociological School of Jurisprudence to
Legal Studies in Nigeria: Readings in Jurisprudence and International Law”, Dept. Of
Jurisprudence and International Law, University of IIorin, 2004, pp. 217-238
H. THE MARXIST THEORY OF STATE AND LAW
1. History- the Structure of Marxism: It is an economic interpretation of law
2. Conflict of Class Interest
3. Economic Determination of Law
4. Class Character of Law
5. The Withering away of Law and State
6. Contemporary Development and Critiques vis-a-vis Historical Experience of
Socialist State and Law, and Socialist Legality.
Objective
To help students focus on theories grounded on economics and politics. This will
involve understanding Karl Marx’s thoughts on productive forces, relations of
production and the initiation of social classes and their relevance to economics and
politics.
To teach students about the Marxist theory of law, the nature of law and the role of
law in society.
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Reading List
Karl Marx, Preface to Contribution to the Critique of Political Economy, Moscow
1973, I.M. & ESP, PP. 502-506
Shivji, I.G., “The State in the Dominated Social Formations of Africa: Some
Theoretical Issues”, International Social Science Studies , Vol XXX II, No 4, 1980
Questions for Consideration
1. What do you understand the term “Sources of Law”, and what are its kinds?
2. Discuss the importance of custom as a source of law.
PART 11: ANALYSIS OF SOME FUNDAMENTAL LEGAL CONCEPTS: I
I. Sources of Law
a. Legislation
b. Customs
c. Judicial Precedents
Reading List
Paton, G.W. “A Textbook on Jurisprudence”, Fourth Edition, Oxford University
Press, 2004, pp. 190-254
H.L.A. Hart, “The Concept of Law”, Oxford University Press, 1961, pp. 49-114
Hugh Evander Willis, “Some Fundamental Legal Concepts” (1926) Volume 1/ Issue
1, Article 2, Indiana Law Journal; also available at
http://www.repository.law.indiana.edu/ilj/vol1/iss1/2
LEGAL CONCEPT: II
1. Legal Rights
2. Legal Duties
3. Legal Remedies
Objectives
To acquaint the student with the concept of legal rights, legal duties and legal
remedies which are commonly used in legal lexicons thereby aiming those with the
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legal and philosophical basis for distinguishing them and assisting them in general
practice.
To help students appreciate the implications of current debates about “animal rights”.
The fact that animals are clearly incapable of exercising legal rights should lead us to
question whether it makes sense to speak of such “rights” and to recognize that a
better approach might be to discuss the obligations (either legal or moral) upon people
not to mistreat animals, or, for that matter, any other aspect of the environment.
Reading List
A.W.B. Simpson ed., P.M.S. Hacker, Oxford Essays in Jurisprudence, 2nd Ser.,
Clarendon Press, Oxford, pp. 131-170
Kymlicka Will and Allan Patten eds. 2003: Language Rights and Political Theory,
Oxford: Oxford University Press
Raz Joseph 1984: “Legal Rights”, Oxford Journal of Legal Studies, 4: 1, 1-21
H.L.A. Hart, “Definition and Theory in Jurisprudence” (1954) 70 LQR 37
D. Lloyd, The Idea of Law (1991, Penguin), pp. 312-314
Ronald Dworkin, Taking Rights Seriously (1977, Duckworth)
Dias, R.W.M., Jurisprudence, 4th ed., Butterworth & Co Publishers Ltd, Boston
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, pp. 143-181
L.B. Curzon, Jurisprudence, 2nd ed., Cavendish Publishing Ltd., London, 1995, pp.
259-271
LEGAL CONCEPTS: III
1. Ownership
2. Possession
3. Personality
4. Liberty
Objectives
To understand the concept of ownership and its marked difference from possession
which may or may not flow from ownership. As a social policy, the two concepts
permeate commercial law and goes into areas varied as criminal law in terms of the
consequences of wrong assumptions.
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Reading List
Dias, R.W.M., Jurisprudence, 4th ed., Butterworth & Co. Publishers Ltd, Boston, Ch.
5
G. Williams, “The Concept of Legal Liberty” in R. Summers (ed.) , Essays in Legal
Philosophy (1968, Blackwell)
Lloyd’s Introduction to Jurisprudence (7th edition by M.D.A. Freeman, 2001, Sweet
and Maxwell), pp. 355-358
Funso Adaramola, Basic Jurisprudence, 2004, pp. 191-211; 212-225
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan 1994, pp. 196-211;
227-240
John Stuart Mill (1906), On Liberty (New York: Alfred A. Knopf)
See also this website: http://www.iep.utm.edu/law-phil/
Compulsory Reading Materials
NOTE:
Prior to each class students are expected to read at least the items on the reading list indicated
above. The course lecturer will lead a discussion of the reading materials in the class. All
students should take part in the discussion.
Freeman, M.D.A. “Lloyd’s Introduction to Jurisprudence”, Seventh and Eighth
Editions, Sweet & Maxwell, 2001, 2008
McCoubrey Hilaire and Nigel D. White, Textbook on Jurisprudence, 2 nd Edition,
Blackstone Press Limited, 1993
Hart, H.L.A, The Concept of Law, London: Oxford University Press, 1983, 1961
ASSIGNMENT:
Is Law Necessary?
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