There are differences between Law, law, and the law, a law…

WHAT IS LAW

HISTORICAL BACKGROUND

The question what is law is same as what is the nature of law. In jurisprudence, the question came very
far , starting with the Greeks. For them, what is law and what is the nature of law , was trying to God…
that law is law, rules ,principles …wishes of God. thus in this period , religion and philosophy is mixed.
But today, it isn’t since rationalism is part of religion. For instance, you can’t ask a muslim that he prays
five times a day and so is a waste of economic time . In the Greek Period, like the St. Augustine saying
source of law being God, so the question of law referred law to the commands of law. The Romans say
exclusively that the question of law is reference of law and that there are other values , reason ,and
justice, and without them it cannot be said to be law. Talking about reason and justice, the supposition
is that all of us have reason, and you cannot do something without reason and if law contradicts the
content of justice,..the Greeks and the roman talk of the natural law of …

The neo –naturalist one of them is Finnis and neo -liberalist , one of them is John Fuller , he uses
human nature and common argument. They say the law is not law if it violates human nature, it meant
that the human nature cannot be the same…to criticize someone, first endeavor what the person has
said and offer your criticisms

The common good argument is important because they say that the law cannot be too individualistic
and it cannot serve the interest of the rulers and must serve the common interest of the government.

Then came the positivist. They say law is law when posited( meaning stated or written down or codified)
they are trying to counter .

Looking at the definition for the nature of law we start with:

God

Reason and justice

Human nature

Common good: with the common good , it is not the question of who takes the decision , it is the
question of for what reason is the decision made…and that is for the common good

Apart from the natural law, the positivist have problems with all these.

Normative public reason is the reason the public have on a particular thing

On naked public reason , we do not know of what we give to ourselves

The positivist are saying law is law when posited –written, codified or authorized by the legitimate
authority
From this point of view there is the sociological school of jurisprudence…for instance when laws are
made but are not to the social facts.

For positivism, every argument you make in court on account of a case has a theory.

ELEMENTS OF LAW WHAT LAW IS -Here we deal with explaniens.

To some people , one of the elements is with the binding rule of conduct which is meant to

firstly enforce justice and in the process ,

secondly it prescribes a duty ,

thirdly rights and obligation,

element four says then this law is either made or derived from custom or legislature in this case an
assembly that is it is by formal enactment, with or without sanctions or a person, thus one person can
make law

What is law?
It expresses some philosophical effort to understand the nature of law. Jurisprudence, like philosophy
we are careful about the words. What is the nature of law?
2. What is the law?
About a particular subject matter. For example what is the law on separation of powers in Ghana, rule of
law, etc. this seeks to talk about a particular subject matter.

The focus is on a specific definite article.

3. “what is law” the answer to this question looks like the answer to the first one – it enquires into the
fundamental nature of law.
4. “What is law” : looks at the meaning of the word law. This meaning includes how it is used in the
English language

There is also a confuseion when you look at the word “law:.

A law:
“Law” The first one could mean legal norms. It has the character of been general. Law of Ghana. When
talking about subject like tort I am talking about the first word law”. The law of tort is talking about
“law”. However a law of tort is talking about a particular law in tort. For example a law of mistake under
the law of mistake.
Am not going to ask you any of the above in exams. They are too easy.
Command theories of law.
- Jeremy Bentham -
- John Austin – for the purposes of this class we will focus on Austin.
When you are talking about nature of law, you are talking about properties, or identity or what it
entails or the features. These legal philosophers want to tell you that when you see a particular thing
then it is not law. If I ask you what is law according to Austin, then you have to tell me what law is
according to Austin and nothing else. After Adolf Hitler’s death, there was a question as to that law
which was used to execute the man who spoke ill about Adolf Hitler. Whether that law was law. And this
was decided based on different legal philosophies.
In mathematical firms according to Austin, laws = rules + sovereignty. For Austin for law to be law, it
must a combination of rules and sovereignty. Over here you have to tell me what rules is according to
Austin. According to Austin, rules are commands. This tells you why we say they are the command
theories of law. You still have a question to answer. What are commands? If you leave the question
hanging you will not succeed. According to Austin commands are expressions of a wish backed by a
threat to inflict evil. Who’s wish? Some one’s wish unless we are talking about natural law as in the
matter came from the sky. And we should know that rationalism is not in religion. If you ask the moslem
why he prays five times a day, he will tell you that it is a matter of faith. The command according to
Austin is issued by someone (this is the principal element) who is willing or able to act on the threat. If
the command comes from somebody who is not willing or who is unable to act on the threat then it
negates the whole concept of command according to Austin. For example, a crippled person telling you
that if I get up you will see. The question is, is he willing? Is he able? He is willing but not able. Thus
according to Austin this is not a command. He satisfied the first element of being willing. The second
thing is that he is not able, if he is able he won’t be sitting down. But even this is a presumption because
you don’t know his capability when he is up. Willingness includes ability even though they are used in
the disjointed form. The 2 – year child telling the father that whatever you have been saying I have been
keeping quiet if you don’t know and you continue you will see. The child does not have the capacity,
power, ability. You will know that according to Austin this is not a command.
You always have to state your position before your criticism
Because of the evil promised,
Sanction theory is the same command theory
Austin tries to give us a legal sense of what legal obligation is. i.e you are only under obligation if you
are commanded. If you are commanded it means there is a sanction. If I ask you to stand up and leave
the classroom are you under an obligation? Class responds yes. He asks why? He asks where the
sanction? The reason why many will have to rewrite is that we read into the facts, and resort to moral
issue/ it is not a command because there is no sanction attached. Austin’s theory is sometimes used in
Criminal law.
Austin says that for rules to be rules, they must come from positive law. This is the law that you can
read from the books – Acts of parliament, constitutions, etc. notice that he has tried to define what
positive law is. He says positive law consists of rules issued by the sovereign. You should know why we
call them sovereign laws. He is speaking within the context of UK. Rules coming from parliament –
parliamentary sovereignty – the people are legitimately allowed to make rules
According to Austin, for you to be a sovereign, you can either be an individual or a group of
individuals. When you are a person it means you are like a king or queen. When you are a group of
persons it means you are like parliament

Second rule sys that for you to be a sovereign, you must be habitually obeyed by the bulk of the
people. You can’t call yourself a sovereign when you are not habitually obeyed by the bulk of the
people.

The last rule is that you must not habitually obey anyone else.
Assuming a cripple says that the next time I see you with my sister I won’t take it lightly. Is it a
command? The issue is on ability. The cripple can have ability. If you are asleep and the cripple stands
on you with a knife, he can kill you. So therefore the cripple has ability and therefore it is a command.
If you are saying the person is in the habit of habitually obeying, assuming a king dies today, and the
next of kin succeeds him, and the new king is saying that everyone should shave his hair ponki joe. Is this
person been habitually obeyed to mean the sovereignty that Austin spoke about? According to Austin, if
you call yourself a sovereign, you should be habitually obeyed. Is the new king habitually obeyed? You
have to distinguish between whether habitual obedience means obeying the kinship position or the
person. If the honesty is attached to the person, then you can say the person is not sovereign however,
if the sovereignty is attached to the person, you can say the person is not sovereign.
When a military man seizes political power, and says that the constitution has been suspended and all
ministers should report to parliament for safe keeping, is this a sovereign power? I will see your answers
on the test day.

HOW WILL WE SATISFY THE REQUIREMENT OF SOVEREIGNTY IN THE CONCEPT OF AUSTIN

POSITIVISM-H L A HART (THE CONCEPT OF LaW)

Positivism is a school of thoght that attempts in history of legal theory to give us an account of the
nature of law or to respond to us (the question what is law) . two things must be noticed: what the
nature of law is , or to respond to the question what is law.

Unlike the command theory, he said law is law when stated or posited. To him, the source of law will
be the statutes, acts of parliaments, constitutions ,regulations, orders. Any other thing that is not
stated cannot become law. So where will you go for the law?, I will go to parliament , the constitution.
To them law is law when posited and these can be gotten from the constitution, acts of parliament, etc.
in other words , positivists belief in the written character of law. This is so because they are beginning
to target the natural law people.
It also meant that positivist believe in codification. Thus codified. Section 11 of act 29 talks about
criminal …13 about causation…therefore if you talk about causation then where is it coming from? So
sometimes in court the judge ask you to produce the report when you make reference to something.

Because of these , they belief in what we call separation thesis. They mean law and morality should not
be fused and that they must be separated. So if you talk about public decency, and say that this one is
not good ooo so such a problem is a morality and so you must keep it to yourself till it becomes part of
the law. thus it is not a requirement for the law to have a moral content. therefore the separation
thesis is what we say the validity of a law does not depend on its moral content.

But if the validity of the law is not contingent upon its moral content so

what will make a rule to be valid? Hart responded by looking at the concept of ‘rule of recognition’ this
is just like the constitution , thus for any law to be valid , it must conform to the constitution and if it is
inconsistent then it is not valid.

Every legal system has this rule of recognition and for a law to be law , it must conform to the rule of
recognition. So if you wanted to study the validity of law in a state you must first find out what is the
rule of recognition. You may not like it because of your moral perspective but that is not hart’s problem.
His problem is that is the law stated in the rule of recognition?

Hart then had problems.

One is the potential violation of human rights. Thus you only have human rights if the human rights are
stated by law . Before you can go to court to say you are entitled to a right to housing then you must
point to a constitutional provision. This leads to a violation of human rights.

Another is dictatorship. Thus where you dictate because it is in conformity with the rule of recognition.
In 1964 there were some 3 amendments, thus where Nkrumah changed the nation to a one party state
and the power to dismiss judges. He has not violated any law since it is in conformity and stated.
However it violates certain rights of people. At least Hart has about 24 problems. So find the rest

The third one is

changing social values. There will be a time where social values has changed as there will be a time to
adjust the law and this must be done by amending it . social value may contract or contradict the
existing law. Thus the law is pointing to A and you are pointing to something B. thus until the law is
changed then the prevailing social value is not actual social value . In effect it denies moral agency. This
is a problem to some people as the law carries some values and those values must be obeyed. For the
positivist , if you don’t like the law turn it back.

There are a lot of positivist, but hart is the true proponent.

(all the problems of positivism and relate them to the constitution)

NATURAL LAW

The natural lawyers are the opposite of positivist. They will not deny the written character of law but
they will require the law on its moral content. They require the law to the just, to reason and probably
human nature and they will think of things like common rule. The principal rule is that the law must
have moral content. Thus when the law is against reason, violation of human nature then it is not law.
For them they belief law and morality are one unlike the positivist. The natural lawyers say the validity
of law depends on its morality.

LL FULLER. Lon Fuller According to Fuller, for law to be law , they must conform to eight conditions

The law must be published: thus if you are making the law whether it is by word or any other means, let
everybody know. In the military regime they punishing you without not letting you know the law.

Prospective: any law that is made should be future looking. Thus it does not accept retrospective
legislation. So what is not crime today must not be crime tomorrow.

Forward looking : some laws are vague,

Clear: this talks about ambiguity

Consistent(not contradictory): thus the law is A and it is not –A thus you are required to obey
both. In some cases it will you use one to cancel the other . and so if you do any of them you
have committed . so you will not know what it is referring to .
Not impossible to obey: some laws no matter what you do, it is impossible to obey. For instance being
given a gallon of water to drink without urinating. It happened in the context of child soldiering and
armed robbery. There is this military man who says that for him when the armed robbers come no
matter what they do he will not give him money . so they came to his house and called the wife to
follow. So they called one to go to the kitchen and bring oil. they then asked the man to undress. So
everybody was confused. This is not news to wife but to the children after that they asked the guys to
hold him. And put a feather in his anus which made him shiver . he was asked again where the money
was and he said it was in the cupboard. They continued that he should not shit. Also they will ask the
woman to undress and lie on top of the man and say if you arose you will see. Thus immediately they
set those impossible laws then notice that you are going to die.

Justice is a problem. Justice is perspective. It may depend on religion, history , sex, gender and even your
critical experience. In the colonial days when we said it was not just for the British to be exploiting us
they said it was just. When martin Luther king was fighting in the 60,s they were however laws. South
Africa apathies in Soweto. They said those were just. Because of these it is difficult for justice to
determine the content of law.

Because of all these problems associated with this the natural lawyers also have problems. Know about
their strengths and weaknesses as we go along.

HANS KELSEN

He is one of the positivists. According to Kelsen, we should have what we call “pure theory of law” and
the pure theory of law is like the same thing Hart is talking about : the law that is stated and is
uncontaminated by extra legal factors. Such that if the law is stated , it must be the law and don’t try
to read in extra legal factors , thus factors which are outside the law, or implying meanings thus the law
should mean this way.. and once you have seen it don’t contaminate it with extra legal values. Because
of this he beliefs in the separation thesis. For him his separation thesis has what we call legal norms
and moral norms. The law will be the legal norms and the extra legal factors will be the moral norms.
He emphasizes on the norm and will call it legal norm or moral norm. he believes these two are not the
same . the law is the norm and the extra once are the moral norms. He says moral norms cannot be
part of legal norms.

There is a problem with him. What will make a legal norm valid like we used in rule of recognition. ? He
answers this by the Grundnorm. For the grundnorm and legal validity , the grundnorm assumes
hierarchy of norms in every legal system. According to this hierarchy, every legal norm derives its
validity from a superior legal norm. In our constitution it says for our act of parliament to be valid it
must be superior to the ….therefore the constitution is the grundnorm. So to answer the question is the
law valid? Then you must find the grundnorm. So in the constitution , article 11 talks about some
hierarchy of laws and article one(2) says the constitution is the supreme law. For Kelsen, the grundnorm
is presumed but in our case it is legislated. So a problem arises as to where the presumption is coming
from as several presumption leads to confusion and anarchy.

The last aspect is how we use the grundnorm in cases where there is coup d’tat. To Kelsen whenever
there is a coup d’état the entire legal order is displaced and to finnis it is not automatically .. for where
there is a valid change of government which is not consistent with the existing law. so if the legal
system iis changed in a coup d’etat , the grundnorm also changed. And that the validity of the laws
whether they are new or old depend on the grundnorm which is new. Sallah v. attorney general. Sowah
says foreign theories have no place so what about the finnis theory they applied. For Kelsen for the
coup to be successful , there must be efficacious application of rules by the new government. Thus the
new military regime might have effectively established itself.

How can you use the grundnorm to justify or not justify coup in Africa?. Know the cases to read.

According to the positivist, a law is a valid law if posited, in the proper manner, by a recognized
authority, regardless of its moral implication s. harts elaborates on three ‘persistent’ questions: How
does law differ from and how is it related to orders backed by threats? How does legal obligation differ
and how is it related to moral obligation? What are rules and to what extent is law an affair of rules ?

Legal positivism does not accommodate the concepts of natural justice and natural right within its
theory, given its empirical approach and its refection of the ocnpept of natural law.

According to Austin , law is essentiallhy a command backed by sanction or the rthreat of pundishment
which implies that anybody who is able to isse a command and is able to bak it up with force or the
threat of punishment hasa, ipso facto made a lw. Thus even the vommand of an armed robber
according to this theory is law. so does It mean each time an arnmed robber givers a command at gun
point he has made a law?

For hart, legal system is validated by the “ rule of recognition” which it iself validated by the mere fact
of its hav ing been accepted ro acquiresced to by the people and is used by court officials . it could be a
wicked law, itcould be a draconian law, it could be a tyrannical law, so long as it has been acqiuresced to
by the people and is being used by court officials, it is valid.

According t oLon L. Fuller , law I s inseparable from morality . he contends that law has its own “ inner
morality “ a nd certain moral conditions which it must fulfill in order to qualify as law.

According to St. Augustine , any government without justice ceaswes to be government . and becomes
a gang of criminals. The same thing will apply to law when it is stripped of its morality and therbry cut off
from the natural law., its basis. It would automaltically cease t obecom law and become naked
command backed by brute force.

NATURAL LAW

What is natural is general is generally approved as good whilst what is unnatural is generally condemned
as bad.all these intends that nature intends man to behave in certain ways and to do certain things. This
idea that nature intends man to do certain things or to behave in certrin ays and on the other hand ,
refrain from doing certain things is the origin of the idea of natural law.

Law has two meanings the first means an order or command emanating from a competent legislative
authority and intended to regulate human behavior . law in this sense is prescriptive. For it prescribes
how things should be done or how men should behave . law in this sense s applicable to only hunman
beings. For it presupposes rationality and freedom and hujna bbeings are the only free, reational beings
in the universe.

The second meaning of law according to CF. John Hospers, an introduction to philosophical Analysis,
law in its second meaning only describes certain uniformities in the universe. It does not prescribe the
way thing s should be done , but only describe es the way objects normally behave or react uniformaly
all over theuniverse under ceretainconditions. Hence int the second menaing law is descriptive and not
prescriptive. For instance Kepler’s law of planetatry motion for example only describes how planets do
actually mnove , not how they should move. Hence in its second menanig law is discovered not made.

Related to the abov e, the terma law of nature has two meanings. The prescriptive and the descriptive
sense. In its prescriptive meaning , the term law of nature is a universal precept or command intended
by nature to regulate human behavior. It is theuniversal alw which enjoins all human to do good and
referain form eveil. Here the lawa of nature Is the moral law and it applies only to human beings

The other meaning which is descriptive is simply a formulation of the regularity with which certain
things happen uniformly all over the world under certain conditions. All the laws such as planetary
motion, the law of gravitation, the alw of realtivity etc which desvribes the regularity and uniformity
with which things havppen under certain conditions in the worlds are laws of nature in the descriptive
sense of the term. The question of obeying or disobeying a law of nature in thissense does not arise
since it is not a law that prescribes the way things should be done but rather a law that simply informs
us of the way things do actually happen.

According to the exponents of the Natural Law doctrine , the law of nature embodies in itself both legal
and moral features and is consequently the ultimate source of both the leagal and the moral aspects of
law.

As ideal law , the law of nature is the standard to which all positive laws must conform in order to be
valid. Thismeans that any positive law that is in conflict with the law of naur is ipso facto null and void
and has not binding formce. Al lthe exponentsof the Natural Law doctrine maintainthat the law of
nature is a law of Reason, that is a law that accords with the rule of reason asn is discoverable by reason.
There are two sides to the law of nature namely the obligations and prohibitions that it imposes on all
human binegs, both ruled and unruled. And th rights ppopularl y kknown as natural rights or simply as “
hun rights “ which it confers on all humn beings.

The major objections to thenatural law doctrine are the ones coming form the positivist who defenda
the self autonomy and self sufficiency of positive law. they reject the idea of Natural Law as a ighter or
superior law to wehich positive law is subordinate. Positive law, they maintain is theonly law that exists .