Theories of Law

1. Natural School of Law

2. Positive School of Law
3. Historical School of Law
4. Sociological School of Law
5. Utilitarian School of Law
6. Marxist Theory of Law

1. Natural School of Law

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. Natural law holds that law and morality are connected. Law is not simply what is
enacted in statutes, and if legislation is not moral, then it is not law, and has no authority. Cicero, said as
follows:

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
wrongdoingbyitsprohibitions.Anditdoesnotlayitscommandsorprohibitionsupon
goodmeninvain,thoughneitherhaveanyeffectonthewicked.Itisasintotrytoalter this law,
nor is itallowabletoattemptto repealanypart of it, and itis impossibleto
abolishitentirely.Wecannotbefreedfromitsobligationsbysenateorpeople,andwe
neednotlookoutsideourselvesforanexpounderorinterpreterofit.Andtherewillnot
bedifferentlawsatRomeandatAthens,ordifferentlawsnowandinthefuture,butone
eternalandunchangeablelawwillbevalidforallnationsandalltimes,andtherewillbe one master
and ruler, that is, God, over us all, for he is the author of this law, its
promulgator,anditsenforcingjudge.Whoeverisdisobedientisfleeingfromhimselfand
denying his human nature, and by reason of this very fact he will suffer the worst
penalties,evenifheescapeswhatiscommonlyconsideredpunishment

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

The natural law 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 behavior 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.

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

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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 there from, 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.

Essential Features of Natural Law

(a) Natural law is universal, unchanging and everlasting;

(b) That which is good is in accordance with nature but that which is evil is contrary to nature.
Therefore, natural law is good;
(c) There exists an order in nature which is rational and which can be known by man;
(d) There are absolute values, and ideals emerging there from, which serve as the validity of 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.

An Analyses of the Features of Natural Law

(a) Natural law as Universal, Unchanging and Everlasting Natural law is usually claimed to be
universal, unchanging, and everlasting. Looking at the major legal systems of the world, this assertion
can hardly be faulted. This is because there are traces of natural law existing in them irrespective of time,
space and geography.

Let us consider, for example, the social contract theory, which derives from natural law. It is a theory
which states that citizens agreed to submit their rights to their rulers in return for responsible and
responsive rulership or governance. It forms the basis of modern State system anchored on democracy.
Democracy is the government of the people, for the people and by the people. There is hardly any system
of government in contemporary world that is not founded upon democracy. Any exception is an
aberration.

Take also fundamental human rights which are said to have pre-dated humanity. They are rights that
appertain to a person by reason of his being a person. Amongst other things, human rights 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 contemporary international human rights
law, these rights are grouped into generations of rights. And they are domesticated or deemed to be
operative in all States of the globe.

However, notwithstanding the universality and the existence of certain natural law concepts in all legal
systems, note, however, that in different civilizations past and even present, natural law has been a ready
tool in the hands of persons and systems of varied ideological persuasions. Thus, natural law has been
used by democrats, liberals, autocrats, dictators, etc to advance their causes, causes that have been
positive and negative to the common good of the people. This probably accounts for why 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

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as yours? Evidence as a criterion of truth explains the utterly arbitrary character of the metaphysical
assertions. It raises them up above any force of inter subjective control and opens the door wide to
unrestricted invention and dogmatics. In other words, natural law is at the beck and call, at the service of
all. Put differently, natural law has been used to advance the freedom of humanity; at the same time, it
has been utilized to perpetrate inequality or slavery. Such was the case in the civilizations of Egypt,
Mesopotamia, China, India, Rome and Greece.

(b) 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 there from means
disorder or rebellion. Therefore, 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.

(c) Man’s Comprehension of Nature

Man, as a creature of the almighty God, has some of the qualities of the creator. One of such is
intelligence. Another is 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. With these,
man is able to decipher or discern what the divine is or possibly is. Thus, according 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 or that still 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. Note that what man ultimately does may not necessarily be a
reflection of this mental exercise because man is also invested with the power of will or of choice.
Consequently, man can choose or decide to, for example, kill another person despite his knowledge of its
inconsistency with nature.

Note that natural law is usually used synonymously with morality. Where such morality coincides with
natural law, such synonymous usage is justified. Where, however, the 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.

(d) Relationship Between Natural Law and Positive Law The clash between natural law on the one hand
and positive law on the other is legendary. Natural law, which essentially focuses on de lege feranda (the
law as it ought to be), is a law whose existence is validated or proved by reference to transcendental,
metaphysical, idealistic, theological or rationalist arguments. Adherents of natural law argue that natural
law reflects the order of nature and represents a blueprint for decent or orderly existence of humanity.
Such order is super ordinate 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.

Therefore, in order for humanity to live in peace and harmony, there is the need for human beings to live
in accordance with the law of nature. Under this scheme, every human law that fails to measure up to the
moral standard set by natural law fails the test of legal validity. Such a law would be unworthy of the
name ‘law.’ On the other hand, positive law – which fundamentally concentrates on
lex lata(thelawasitis)–islawmadebyman.Proponentscontendthatthisis law whose existence can be proved
scientifically in the sense of its being physically observed,

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located and touched. In disclaiming the position of natural law, they accuse natural law theorists of
confusing the ‘is’ with the ‘ought.’ Put differently, the contention is that natural law tends to derive an
‘ought’ proposition from an ‘is’ proposition. This muddles up the system of thought.

According to Austin, the validity or legitimacy of the (positive) law is one thing, its merit or demerit
another. What he meant to say was that positive law is concerned strictly with the validity of the law. Any
discussion of its merit or demerit was certainly 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 the issue
of validity with that of the propriety or otherwise of the law.

Moreover, as Professor Hart stressed, there is no necessary connection between law and morals. By this
he did not deny that there are common grounds or convergence between law and morality. Rather, he is
saying that it is not a matter of course that law must be connected to morals or that one must be tied to
the apron string of the other. That is why there are wide areas of divergence between law and morality.
Examples are given below:

Immanuel Kant says that the thrust of law is external (that is, law intervenes only when there is an
external manifestation of what a person is thinking about) while morality is a matter of internal
conscience. This is evident in 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 or autocratic systems where the will and caprice of one man or a group of men can be
legislated into law overnight. In modern democracies or even pseudo-democracies, enacting a bill into
law goes through series of procedures outside and within the legislative houses. It is only when it is
finally passed by the legislators and assented to by the President that it becomes law. But there is no such
air of formality or procedures in the making of morality. In fact, morality is not made; it grows or
emerges. Pre-existing moral norms are handed down from generation to generation until the people find
it unacceptable and abandon it. Regarding the law of God, you should 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. Recall that Austin
insisted on the separation of the validity of law from its propriety. Therefore, the validity of law is
confined only to the issue of whether it is right to do one thing or wrong to do another. 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. But, from the perspective of natural law or
morality, this would be bad or evil because one man possesses to the detriment of many others. Therefore,
the law would be a bad law.

Law prescribes sanctions against violations, e.g., imprisonment, fines, seizure, confiscation or forfeiture
of property, etc. In many cases, these sanctions may be coercive, for example, criminal law. Although
others may be not so coercive – for instance, power-conferring laws such as those on marriage, wills, and
contracts – they still contain some elements of sanctions or deprivation or denial of benefits or privilege.
On the other hand, violation of natural law is not punishable by man but by God or the creator. See, for
example, the Holy Bible and the Holy Koran. By and large, note that only
God or spiritual forces have the mandate to punish breach of the divine will.
Moreover, the punishment of any deviation from the morals fashioned by man is different from

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that stipulated by positive law. The sanction, moral sanction, is of a different kind, different from legal
sanctions. Moral sanction is guided more by public opinion than by anything else. For example, the
criminal law imposes on a parent a duty of care towards his infant child but it does not similarly obligate
a non-parent. But natural law or morality would impose equal duty of care on both biological and non
biological parents.

HISTORY OF NATURAL LAW

EARLY ORIGINS
In pre-modern societies there was a union of secular and religious beliefs. In fact, societies were believed
or deemed to be ruled or directed by gods or spirits. In other words, invisible forces were involved in
directing the affairs of the physical world including, of course, the world inhabited by the human race.
Against this background 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 the classical era in Europe when the rise of Judeao-Christian tradition
saw monotheism replacing polytheism. 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. In a manner
that is parallel to the spiritual/religious coloration that the Judeao-Christian monotheist religion gave
natural law, 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.

Thus, 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. On his part, 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 a means of
overcoming destructive emotions, identified nature with reason. They posited that reason governs all
parts of the universe and that human beings were equally governed by reason. They then concluded that
people live ‘naturally’ when they conduct their lives in accordance with reason.

Cicero agreed with the submissions of these philosophers when he 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. Thus, Sophocles (496 BC-406 BC) in Antigone describes
natural law as the unwritten and unfailing statutes of heaven. The Greeks

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distinguished between logos (laws of heaven) and nomos (man-made laws). Where both are harmonized
or, where nomosharmonizeswithlogos,therewillbecosmicharmony,acondition inwhich everything functions
efficiently. In the event of a disconnect between both, there will be chaos or anarchy. Redressing this
would entail going back to status quoantebellum.Therefore, thedestinyoftheGreeksocietywastiedtotheapronstring of
heavens. The polis (City State), or civil society, was to be organized in a way consistent with
the cosmic order.

Generally renowned to be the father of philosophy, Socrates was of the view that the laws of the polis
were a reflection of natural law. According to him, natural law was each doing what pertains to his
nature. You should recall that 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 work for his
escape because his escape would be unjust. Therefore, he drank the hemlock and died.

Plato (427-347 BC) was a student of Socrates and the originator of the Academy – a school where the
philosopher and the student would engage in an unending crusade for truth. According to Plato, society
will be peaceful and orderly if only those well trained take over the reins of governance. In other words,
persons endowed with intellectual superiority are exclusively those entitled to rule. The idea of
philosopher-kings emanated from here. His proposition is that a person who has gone through the
process of good, seasoned training should aspire to leadership position.

We may compare this Platonic view with contemporary developments. In the light of the currency of
democracy across the globe, Plato’s proposition would be a hard sell. Democracy is animated by
majoritarian rule. If a person, even though untrained in the intricacies of leadership, emerges as a
President of a country, so be it. The people may sink with his ignorance but he validly remains the
President.

Taking a cue from his master, Plato said that each man was to do what ethically pertains to him. In other
words, natural law sanctions each person to do only that which nature assigns to him. Therefore, a slave
cannot be master. This is another way of saying that social mobility is a taboo. Plato upheld the
legitimacy of inequality or slavery. Aristotle, a student of Plato, in his Nichomachean Ethics, wrote about
justice. He 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. This is quite clear from his definition or
description of justice. Pythagoras (580 – 500 BC) also had something to tell us about justice. According
to him, equality was tantamount to justice. Thus, the reward or punishment of human action should be
proportional to his degree of his goodness or badness. Recall that Pythagoras defined justice in
mathematical terms as follows:
Justiceislikeasquarenumber.Itgivesthesameforthesameandthusisthesame multiplied by
the same. The morale of this mathematical conceptualization is proportionality.
So, when a person damages the property of another, he has to make it good through restitution
inintegrumorrestorethevictimtotheconditioninwhichhewouldhavebeenhad the wrongful conduct
not occurred.

Roman Heritage
Roman law, otherwise known as jus civile, was classified into three types as follows: res (law of

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things), actio (law of action), and persona (law of persons).

Note that only a Roman citizen had full capacity to possess rights and to create obligations. The head of
the Roman family (pacta familia) had full contractual capacity. The wife, or a woman for that matter, had
diminished capacity. Women, slaves, infants and persons of unsound mind lacked capacity.

JuscivilewasapplicablebetweencitizensofRomeonly.Asthesocietygrewand interactions with the

outside world increased, there was the need to devise a law or a system of law to apply to non-citizens.
This necessity led to the emergence of jus gentium. It was 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
jurisconsult (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 had defined or 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
wrongdoingbyitsprohibitions.
Note, however, that Rome was also a slave owning society. Consequently, natural law in Rome
accommodated a world of slavery or inequality. Note again that Greek and Roman civilizations were just
some of the many civilizations that contributed their quota to the development of jurisprudence generally
and natural law particularly.

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:
lextemporalis,
lexnaturalis,and
lexaeterna.
On his part, 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

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of natural law independent of the explanation thereon offered or paraded by the Papacy.

One of the secular natural law theorists, Hugo Grotius – Dutchman and jurist – separated natural law
from its theological foundation. This he did by insisting that natural law was independent of divine law or
command, and emphasizing that natural law was derivable from human reason or intellect. He even went
as far as saying that natural law would exist even where there was no God. In other words, he
emphasized that natural law exists independently of God.

DECLINE OF NATURAL LAW

Against the background of the emphasis on scientific approach to learning, an approach that favoured
rationalist and secularist perspectives to the study of human phenomena, the influence of natural law
dwindled in the 18th and 19th centuries. 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 John Austin and
Jeremy Bentham insisting on the separation between positive law and morality.

REBIRTH OF NATURAL LAW

However, the 20th century witnessed a revival or rebirth of natural law doctrines because of a
combination of factors, representing the failure, weakness or excesses of positivist doctrines. We shall
consider some of these briefly:

(a) Horror of Second World War

The Second World War, fought from 1939-1945, was prosecuted under the inspiration of extreme
positivism where Nazi Germany was, in vindication of Hegel, deified the State and where, in the mould of
John Austin, Hitler became the uncommanded commander to whom obedience was compulsorily offered.
It was, therefore, no surprise that the war exterminated six million Jews from the face of the earth. The
horror of the war jolted the international community from its stupor. Thus, the Preamble to the UN
Charter 1945 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 Universal Declaration of Human Rights (UDHR) 1948, and the
Covenants – the International Covenant on Civil and Political Rights 1966 and the International
Covenant on Economic, Social and Cultural Rights 1966, etc. Since 1945 till date, 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.

(b) Human Rights Violations

This is allied to the observation made on the Second World War. 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 League of Nations sought to know why Germany was maltreating its Jewish minority, and
terminated its membership of the League in 1933. But since 1945, the tide has turned against violators.
Apart from international, regional and domestic instruments, there are mechanisms put in place to
enforce or to cause the

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enforcement of human rights, and there are avenues for victims of violations to vindicate their rights.

(c) 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, there have been
instances where pursuit of scientific inquiry has been geared immediately or ultimately towards harming
human race. Such activities include 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. And the current face-off between Iran and the international community or the critical
members of the international community is because Iran is highly suspected of developing atomic
weapons. Other issues that have triggered the invocation of natural law include human cloning
(remember dolly – sheep – the first cloned mammal born in 1996), homosexuality, lesbianism, same-sex
marriage, euthanasia, etc.

RESTATEMENT OF NATURAL LAW

The discourse on natural law would be probably incomplete without a consideration of the restatement of
natural law by modern natural law theorists, for example, John Finnis (1940- ). Finnis is a British lawyer
and philosopher who is desirous of investigating the utility of natural law in contemporary society.

According 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, because of the severe criticisms natural law has suffered in the hands of positive
law proponents.

Rather, the modern natural lawyers focus on the common good without which the society will be in
disarray. He said that the normative conclusion of natural lawyers was not based on the observation of
human behaviour or nature but they resulted 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.

TYPES OF NATURAL LAW

Thomas Aquinas (1224 – 1274) identified four kinds of law as eternal law; natural law; divine law; and
human law. We shall look at them in turn.

(a) Eternal law (lex aeterna)

This is law that is known only to God though some blessed select few may perceive it. Through it 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. Through the
instrumentality of the law, God rationally guides all created things.

(b) Divine law (lex divina)

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This is the law revealed in the scriptures. This law comes in handy when law discovered by human reason
fails. In other words, 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 kind of law can be revealed to a select few – the
prophets. In the Holy 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)

Natural law is law that manifests man’s participation or share in the workings of the cosmic law or the
law governing the whole of the universe through the medium of reason. Put differently, natural law 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.’ In other words, 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. You
recall that 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, however, the reverse is the case, it is said to fail the test of natural law. In
the extreme of cases, it may even be denied legal validity.

CRITIQUE OF NATURAL LAW DOCTRINE

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

(a) 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. In other words,
natural law was condemned for its unscientific methodology. For example, David Hume said that 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 further that its truths cannot be asserted or
demonstrated meaningfully, and concluded that natural law attempts to derive an ‘ought’ from an ‘is.’

Moreover, natural law was not spared by the proponent of utilitarianism, Jeremy Bentham. In fact, 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. However, note
that although Bentham’s utilitarianism was geared towards the satisfaction of the happiness of the
greatest number, his felicific calculus (for measuring pain and pleasure) has been said to be unscientific
and his utilitarian theory has even been criticized for belonging more to the family of natural law than to
that of positive law.

(b) Proviso to Universality

10
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 said 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’. Of course, recall that Ross had said of natural law as follows:

“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.”

The observation by Friedmann on the flexibility of natural law ancient philosophers have made us to
believe is eternal, unchanging and everlasting is made manifest in a survey of some ancient civilizations
(such as Egypt, India, Mesopotamia, China, Greece and Rome) where inequality and slavery were
accommodated as part and parcel of the doctrine of natural law.

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

(c) 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.
But we should realize that there are some themes of natural law which (though few) would ordinarily
elicit same and universal response from all. John Finnis may have enumerated them in his objective
goods.

Applicability of the Natural Theory of law in Uganda today

Many of the laws in Uganda derive their origin from the Bible which is associated with
the natural school of thought who believe that God is the author of the law for example
the bible under the book of Deuteronomy has the ten commandments that Moses gave to
the Israelites’ to guide their way of life and we see today in Uganda that we have the
penal code Act that has incorporated such laws for example under section 188 which
provides for murder, section 254 which provides for theft among others this shows that
some laws in Uganda are in line with the natural school of thought and partly believe in
God as the promulgator of the law.

• Natural law emphasizes the need for a legal system based on moral principles.

11
 Some of the laws on Uganda still have a moralistic connotation; for example
penalization of some acts which include homosexuality as seen in the recently cancelled
Anti-Gay Act of 2014 and under the Penal Code with sections on bestiality, adultery and
murder as seen under sections, 154, 153 and 188 of the Penal Code Act cap 120

• Natural law assumes equality of the people regardless of their class, culture and state/
national differences. The 1995 Uganda Constitution outlaws discrimination on the
grounds of tribe, age, sex, gender and religion under Article 21(2) which is to the effect
thatapersonshallnotbediscriminatedagainston groundsofsex,race,color,ethnicorigin,tribe,birth,creed,economicstanding,
politicalopinion/disability.Article 33 similarly outlaws discrimination. This can also
be explained in the case of BestKemigishaVsMarbleKomuntaleand
PrinceHappyKijanangoma1 where court declared the Toro custom which did not
allow women to inherit property unconstitutional stating that it contravened Article 26,
31, 33 and of the Constitution.

• Since the theory seeks universality and commonality in human law values and
institutions across the globe there is still a modicum of relevance if it is related to the
development of international standards under human rights, environmental law among
others. In Uganda under chapter four of the 1995 Constitution provide for all the human
rights in question to mention but few right to life, right to inherent property etc. this can
further be explained in the case of SalvatoriAbukiVsAG. 2Where court declared the
practice of expulsion from one home land being inhuman degrading punishment.
Court further defined the meaning of livelihood to be ones area of settlement including
his land and denial of this would mean harsh treatment that is against the provisions of
the constitution.

The social contract arm of natural advances the concept of representative

democracy system of governance widely in use in Uganda today making

1
(High court case)
2
(Civil appeal number 1 of 1998)

12
 the elections water dough this relevance for example is evident in the constitution
of Uganda where every registered citizen has right to vote any candidate of their
choice to represent them in office. Also the existence of several presidential
elections in Uganda shows the relevancy of the Naturalists idea of democracy for
example the presidential elections of 2001, 2006 and 2011. However in relation
to civil disobedience this can be seen by the overthrow of Idi Amin the former
president of Uganda by Uganda Resistance Army.

2. LEGAL POSITIVISM
Standing in stiff opposition to natural law school of jurisprudence is legal positivism. Legal positivism is
a theory of law that emphasizes the ‘is’ as against the ‘ought.’ What this means is that it seeks to adopt
the scientific approach to the study of law by focusing only on phenomena that can be experimented,
observed, or demonstrated. Thus, it is descriptive, and not prescriptive.

Within the big family of legal positivism, there are sub-theories with which outstanding individual
positivists are peculiarly identified. Such sub-theories include the command or imperative theory of law
(associated with John Austin), and Grundnorm (connected with Hans Kelsen). Another positivist theory
but which is not discussed along with classical positivism is utilitarianism, which is identified with
Jeremy Bentham.

The word ‘positivism’ derives from positum, the part participle of ponere, which means ‘to put.’ It means
that which is formally laid down or affirmed by man. It contrasts with natural law whose existence
derives from metaphysical or transcendental roots.

Positivism is the rejection of the normative and the embrace of empiricism. Normativity has to do with
idealism. This mode of thought commences its inquiry from an idea before it proceeds to matter. It is
metaphysical and transcendental. It is the tool utilized by natural law. On the other hand, empiricism, a
mode of thought of positivism, is a way of thinking which emphasizes materialism. Knowledge validated
in sense experience is the basis of positivism. For such validation, it relies on experimentation or
observation. It is descriptive; it describes what is as it is and no more. Above all, it is scientific.

Natural law is animated by idealism in the same way that positivism is propelled by materialism. In legal
positivism, however, a metaphysical explanation of reality is denigrated in preference for the scientific
method. Legal positivism believes it is the height of legal thought. According to Comte (1798- 1857),
evolution of human thought has passed through three stages: theological, metaphysical and positivistic.
In the first stage, knowledge is acquired or validated by reference to religion – such as Christianity or
Islam. For example, before the Renaissance, the Church monopolized knowledge to such an extent that
natural law was adorned with its garment until the 16th century when Hugo Grotius secularized natural
law.

Dennis Lloyd observes that the real impetus to the positivistic approach to learning can be

13
traced to the Renaissance with its emphasis on the secular studies of science and humanism. In relation to
law, efforts to place legal study on a scientific or unbiased pedestal or footing led many early legal
positivists to create strictly empirical way of understanding or studying law. Such early advocates of legal
positivism included Jeremy Bentham (1748-1832) and John Austin (1790- 1859). Note that these
advocates benefited from the philosophers and political theorists of earlier age such as Thomas Hobbes
(1588-1679) and David Hume (1711-1776). The fruits of the legal positivistic doctrine ripened in the 18 th
century when the laws governing the physical world (both animate and inanimate) were separated from
those governing human conduct.

There are five categories of the possible meanings of legal positivism, namely:

(a) The contention (in the view of Jeremy Bentham and John Austin) that laws are commands of
human beings, the command of a superior to an inferior who habitually obeys the former.
(b) The proposition that there is no necessary link between morals and law. Proponents include
Hume, Bentham, Austin, Kelsen and Hart. In other words, legal positivism is a body of law
which exists independently of morals, moral norms or moral code. It asserts that despite the
existence of a relationship between law and morals there is no necessary connection between
them.
This is another way of saying that the nexus between the two cannot be taken for granted
because each can exist in spite of the other.
(c) The contention (according to Kelsen) that the analysis (or study of the meaning) of legal
concepts is (i) worth pursuing and (ii) to be distinguished from historical inquiries into the
causes or origins of laws, from sociological inquiries into the relation of law and other social
phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims,
“functions”, or otherwise.
(d) The contention (according to Kelsen) that a legal system is a “closed logical system” in which
correct legal decisions can be deduced by logical means from predetermined legal rules without
reference to social aims, policies or moral standards.
(e) The contention that moral judgments cannot be established or defended, as statements of facts
can, by rational argument, or evidence or other proof.
In (a) above, legal positivism is expressed in the form of the capacity of a superior to issue commands to
be obeyed by inferiors. Popularly known as the command or imperative theory, it was popularized mainly
by John Austin.

In (b), legal positivism is concerned with the relationship between man-made law and morals. It states
that notwithstanding the degree of relationship between them, each is separate and independent. As Hart
says, there is no necessary connection between law and morals. He argues that positive law is to be
studied to the “total exclusion of any law transcending the empirical reality of the existing legal system.”
Thus, morality cannot be mixed up with positive law let alone be used as a litmus test for the validity of
the latter because it is metaphysical or transcendental. (e) is closely associated with (b).

(c) In his desire to purify the impurities contained in positive law, Kelsen developed the Pure Theory of
Law. In summary, he sought to totally separate not just moral issues but also sociological and historical
character of law from manmade law. Note that (d) is connected to (c).

IMPACT OF POSITIVE LAW ON NATURAL LAW

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The impact of the rise of positivism on the doctrine of natural law was great. Hitherto, natural law was
accepted or almost accepted as given, as self-evident, demonstrable by reason. But the trenchant criticism
of positivism has made it like a mere pretentious name for moral rules. According to David Hume,
justification for such rules is to be found in certain aims of life determined not by reason but by human
desires or passions. In other words, moral values are a response to the existentialist needs of humanity
the same way as necessity is the mother of invention. Put differently, passion or emotion is the basis of
morality, not reason.

CONVERGENCE OF POSITIVE LAW AND NATURAL LAW

Despite such impact, there is no escaping the fact that there are instances where positive law and natural
law (or morals/religion) all converge because they all embody norms comprising obligations and rights,
for example, their common prohibition of murder, rape, etc. Also, in imposing certain standards of
behaviour, positive law and natural law reinforce and supplement each other. For example, the moral
duty not to harm another manifests as the Law of Tort; the duty to honour promises is expressed in the
Law of contract; unjustified hazards for another can be found in positive law providing for rules on speed
limit, traffic signs, roadworthiness, etc.

SEPARATION OF POSITIVE LAW FROM NATURAL LAW

Notwithstanding the convergence between positive law and natural law, there are so many instances in
which their streams do not flow together. Legal positivism revolves around the belief, assumption or
dogma that the question of what is the law is separate from, and must be separated from, the question of
what the law should be. John Austin captures this worldview as follows:

The existence of law is one thing; its merit or demerit is 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. A law, which actually
exists, is a law, though we happen to dislike it, or though it varies from the text, by which we regulate our
approbation and disapprobation.

Legal positivism believes that social institutions can be studied objectively, that is, in a manner devoid of
passion, emotion or bias. It does not deny that certain laws may be evil or condemnable but it insists that
the quality of the law does not affect its validity. In other words, legal positivism is saying that the
question of the goodness or badness of the law must be kept separate from the validity (that is, whether
the law has been made in accordance with the requirements of the legal system in question) of the law.

Legal positivism distances itself from morality because morality, which advertises itself to be universal,
certain and objective, is reality marked or marred by relativism, uncertainty and subjectivism. There is,
therefore, the need for distinction between analytical jurisprudence (positive law) and normative
jurisprudence (natural law). Whereas analytical jurisprudence focuses on the basic facts of the law, its
origin, existence and f Contract; the duty not to create underlying concepts, normative jurisprudence
concerns itself with the goodness or badness of the law.
Legal positivists accuse natural law theorists of deriving an ‘ought’ from an ‘is.’

The explanation of this accusation is rendered by Chinhengo as follows:

The question of what the law ought to be is an important question of morality, since it is ultimately based
on the value judgements of persons in society which are properly reached at after the exercise of reason.
The goal which it is intended to achieve through law is also identified through reflection, and may be
objectively discovered from the attitudes or

15
preferences of all moral persons in society. From this they deduce what the desired state of perfection
and the moral principles leading to it should be. On this basis they decide what the law ought to be which
will lead to the desired result.11
In response to the insistence of naturalists that natural law occupies a pride of place in the legal universe,
towering over and above positive law, legal positivists often draw the attention of the former to the
difference between the lex lata (the law as it is) and delege feranda (the law as it ought to be). Positivists
maintain that there must be a separation of the ‘is’ from the ‘ought.’ To positivists, one cannot validly
deduce “ought” from “is.” Normative statements cannot be garnered from merely factual statements.

The ‘is’ must be taken or studied as it is. This must serve as a necessary base for the legal researcher who
is interested in legal reform, in advocating for a change or review of the law. The utility of this approach
is that it allows for clarity of legal thought.

Note that natural law proponents do not make such distinction. Stressing the unity of law, they believe
that it is either there is law or there is not. If there is law, it must, to be valid, meet the metaphysical,
transcendental standard of natural law.

Note also that positivists believe that natural law is an impurity or infection that must be quarantined out
of positive law. It is in a bid to do this that there is a separation of the ‘is’ from the ‘ought,’ a distinction
that seeks to make law valueneutral, devoid of any moral underpinning, emotion or passion. According to
Kelsen, in his General Theory of Law and State (1945):
‘Pure theory of law’ is so-called ‘because it only describes and attempts to eliminate from the object of
the description everything that is not strictly law: its aim is to free the science of law from alien
elements.’

Bear in mind that it is the spirit of such elimination that has informed several doctrines in the family of
positive law. Thus, the command theory or the imperative law theory is associated with John Austin,
utilitarianism with Jeremy Bentham and John Stuart Mill and, of course, Pure Theory of Law with Hans
Kelsen.

THE HART-FULLER DEBATE

It is important to consider, howbeit briefly, the academic exchanges between the proponents of legal
positivism as represented by H.L.A. Hart and those of the natural law school represented by Lon Fuller.
The gravamen of such academic discourse, usually tagged Hart-Fuller debate is to be found in the
Harvard Law Review 1958.

Curzon identifies the background of the debate as the atrocities committed by Germany during the 2nd
World War. Under the National-Socialist regime (1933-1945), dictatorship reigned. There were abuses of
power, massive violations of human rights, enacting of privative laws and ouster clauses (which hindered
the courts from adjudication).

At the end of the war, there were concerted efforts by German jurists to cleanse the German legal
system of any association with such dictatorship. Radbruch (1878-1949) – who was Minister of
Justice under the Weimar Republic – wrote a book entitled Five Minutes of Legal Philosophy (1945)
wherein he ‘converted’ from legal positivism to natural law. He wrote that: Preference should be given to
the rule of positive law, supported as it is by due enactment and State power, even when the rule is
unjust and contrary to the general welfare, unless the violation of justice reaches so intolerable a
degree that the rule becomes “lawless law” and

16
must therefore yield to justice.

The transformation or transfiguration of the erstwhile die-hard positivist and Minister of Justice
influenced many and brought into sharp focus the need to reexamine the doctrine of legal positivism in a
dictatorship.Although Hart sympathized with Radbruch, he insisted that the law is the law
notwithstanding its failure to meet the demands of external moral criteria. In
PositivismandTheSeparationofLawandMorals(1958),heobservedthatthatthe law is evil is
separate from the question as to whether it ought to be obeyed.

Note, however, that Hart did not support the evil of the Nazi regime which he described as ‘hell created
on earth by men for other men.’ But he insisted that it was wrong to deny a law duly made in accordance
with rules of the legal system in question simply because it results in abuses and atrocities. Fuller
responded in his Positivism and Fidelity to Law – A Reply to Professor
Hart(1958).HeemphasizedthewrongnessofthepositiontakenbyHart.Tohim, law must possess certain characteristics
of ‘inner morality’ if it must be classified as law. In Nazi Germany, nothing existed to which the title of
law might be applied correctly because the so- called laws were inherently evil. He gave examples of the
characteristics of such laws as retroactivity of decrees, execution without trial of dissidents in 1934, and
total indifference to human rights and civilized conduct. He posited that it was not unfair to the positivist
philosophy to say that it never gives any coherent meaning to the moral obligation of fidelity to law.

Hart replied by reaffirming his stance. Legal system may show some concerns to justice or morality but it
does not follow that a criterion of legal validity must include, expressly or by implication, any reference
to justice or morality. A law remains law no matter how morally iniquitous. Law and morality are not
interchangeable.

However, Hart recognizes the necessity for ‘salient characteristic’ of law (‘inner morality’) in his
Concept of Law. Thereafter Fuller enumerated the minimum content of law – what a law worthy of its
name should contain in order to be called law. He concluded by stating that a law lacking in internal
morality loses the essence of true law.

CRITIQUE OF LEGAL POSITIVISM

Legal positivism is appreciated for enabling us to differentiate between the law as it is and the law as it
ought to be. Such approach allows for logic and coherence.
However, it is criticised on many grounds including:

(a) That it is a mere search for facts without any unifying frame of reference.
The argument is that positivists are concerned only with the analysis of the coherent and logical sequence
of the basic facts of the law, its origin, existence and underlying concepts without considering the purpose
for which the institution of law exists. But positivists retort that their search for facts is informed by the
motive of classification and interpretation in order to pave way for the possible emergence of universal
concepts that would be of immense assistance in legal discourse.

(b) That it operates outside its social setting. Law is a social enterprise meant to govern human conduct,
to rule a society. However, where, as the positivists insist, such law is imposed on the society in vacuo,
that is, without consideration of the interests of the people it is made to govern, then the law becomes an
unruly horse. Where law assumes this dimension, it is no more than an alien superstructure which will
naturally excite the hatred and opprobrium of its subjects.

17
(c) More often than not, positive law disregards or even tramples on the basic rights of people. It is in
this wise that legal positivists have been accused of using their theory to fan the embers of
authoritarianism, despotism, or dictatorship in several States. For example, such was the case in Nazi
Germany which, pursuant to its positive laws, permitted or authorized the extermination of six million
Jews. The Hart-Fuller debate reveals this much. Coming back home to Africa, positivism has been
fingered as a major culprit in the gross violations of human rights of African peoples by several
dictatorial governments. A quintessential representation of this scenario was Nigeria under military
dictatorships. Through their decrees and edicts, several military governments abused the human rights of
citizens including the rights to life, human dignity, property and good governance.

However, positivists have responded that positivism or those influenced by it are not necessarily
authoritarian or totalitarian. They allude to the fact that there have been positivist jurists who were
committed to sociopolitical and economic reforms or progress. Such jurists included Jeremy Bentham and
John Stuart Mill who advocated utility as the foundation of any law. Ditto for Austin who, though a
positivist, was equally a utilitarian. Positivists contend further that the opponents of positivism are not
necessarily libertarians. They cite Del Vecchio’s apologia for Italian fascism as an example of natural
law doctrine placed at the service of despotism. We can see the contemporary version of this when
supposed liberals or radicals in government or leadership positions fail to impact their liberalism or
radicalism in governance. They instead choose to wave their positivist flag to deny compatriots of their
humanity and dignity.

(d) Moreover, ignoring the ‘ought’ in the law has the effect of draining the law of values. It is basic that
in societies, there are certain values or virtues that people hold dear, values they ordinarily would expect
would be given expression to by law but, with the value-neutrality of positive law, this is rendered
impossible. Where this is the case, the purpose of the law will be defeated. Many may not have too many
objections to the insistence by legal positivistic doctrine that law and morals must be separated but the
Hart-Fuller debate demonstrates the depth of the disagreement between legal positivism and natural law
doctrine.

CONCLUSION
In this Unit, we examined the scope of legal positivism, the impact of positive law on natural law, the
convergence of positive law and natural law, the separation of positive law from natural law, the Hart-
Fuller debate, and the critique of legal positivism.

To the extent that positive law is scientific, that is, by reason of being seen, observed and felt, it meets our
expectation of reality. On this score, nobody may validly oppose the insistence of positivists that the law
as it is must be separated from the law as it ought to be.
However, in not caring about the contents of the law, a development that has encouraged all sorts of
excesses and abuses, it is believed to have taken law out of context, out of the social setting. Be it noted
that a law that does not consider or take into consideration the interests and even passion of the people it
is meant to regulate is viewed as an alien imposition.

SUMMARY
In this Unit, we examined the general scope of positivism. Positivism emerged as a reaction to the
metaphysical, transcendental and unscientific methodology of natural law. Positive law, its product, is
man-made law. We noted that the coming of positive law impacted on natural law negatively.
Such outcome was as a result of ceaseless attacks by the likes of Jeremy Bentham and David

18
Hume.
Despite the cat-and-dog relationship between positive law and natural law, there are circumstances in
which they share similar interests such as when they similarly regulate the duty not to injure one’s
neighbour, the duty to keep promise, the duty not to expose others to life
-threatening risks, etc.

LEGAL POSITIVISM: JOHN AUSTIN (1790-

1859) INTRODUCTION
In continuation of the positivist perspective to law, the theory of John Austin is the focus of this Unit. John
Austin, a die-hard positivist, was the first Professor of jurisprudence at London University. He was
equally a utilitarian and a friend to the proponents of the utilitarian school – Jeremy Bentham and John
Stuart Mill.

John Austin saw law as the product of an identifiable superior being to whom the rest of the society must
pay heed. To him, law was handed down neither by a transcendental being nor by a group of persons but
by the uncommanded commander. His theory, therefore, rests on the trilogy of sovereign, command and
sanctions.
This Unit will look at John Austin’s conception of law, the trilogy, and the critique of his theory.

OBJECTIVES
At the end of the discourse in this Unit, you would be grounded in the:
Positivistic analysis of law from the perspective of Austin; Assessment of the
trilogy of sovereign, command and sanctions; and

CONCEPT OF LAW
John Austin was a disciple of Jeremy Bentham. So, he was a utilitarian. Thus, according to him, ‘the
proper purpose or end of a sovereign-political government is the greatest possible advancement of human
happiness.” Because the works of Bentham were not published until a century after his death, the task of
expounding the command theory of law fell on his shoulders. In his
The Province of Jurisprudence Determined (1832), Austin sought to delimit the scope of
jurisprudence. To Austin, jurisprudence is concerned with ‘positive laws or with laws strictly so- called,
as considered without regard to their goodness or badness’. Positive law or man-made law is set by
political superiors to political inferiors. John Austin’s theory has no room for moral law whose basis
cannot be established without reference to the metaphysical or transcendental. Thus, regarding the
morality of law, he states that the existence of law is one thing; its demerit another. In other words, the
content of law should not determine its status as law. Put differently, the content of the law should be
separated from the form of the law itself.

His command or imperative theory of law derives its name from the manner in which he defined law.
According to him, law is the command of a sovereign, the command of the uncommanded commander, a
command issued by a political superior to whom the majority of members of society are in the habit of
obedience, and which is enforced by a threatened sanction. From these strings of definitions emerged the
trilogy of sovereign, command and sanction.

Types of Law
He broadly categorized law into two types as follows:
a. Laws improperly so called; and
b. Laws properly so called.

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a. Laws improperly so-called: This comprises laws by analogy and laws by metaphor:
i. Laws by analogy: These are “rules made and enforced by mere opinion by an indeterminate body of
men in regard to human conduct, such as the law of honour.” He gave International Law as example of
this group.
ii. Law of Metaphor: These are laws observed by lower animals or laws determining the movement of
inanimate bodies.

b. Laws properly so-called: These laws are general commands made up of laws of God, set to human
beings, and laws set by men to men. Laws set by men consist of “laws strictly so called” and laws not
strictly so-called:
i. Laws not strictly so-called: These are laws set by men not as political superiors nor pursuant to a legal
right. They are not the commands of a sovereign and there are no sanctions imposable upon violations.
An example of this category of law is Constitutional law.
ii. Laws strictly so-called: These are laws made by a political superior for the guidance of political
inferiors.

Command Theory and International Law

International law is a body of rules governing States, international organizations and individuals. It is
different from municipal or domestic law in several respects. Whereas international legal system is
primitive or poorly developed, domestic legal system is civilized or highly developed. Manifestations of
this include absence of a super-sovereign or law-giver, the existence of collective responsibility, and its
incapacity to possess institutions of governance similar to the ones available in domestic legal systems.

In view of the foregoing, Austin concluded that international law was no law but rather an act of comity
by States. At best, he defines or describes international law as international positive morality.

3.2 TRILOGY OF SOVEREIGN, COMMAND AND SANCTIONS

(a) Sovereign
Sovereignty is the exercise of ultimate authority over persons and groups within the territory of a State.
According to Bodin (1530-1597), it is “the highest power over citizen and subject unrestrained by law.”
Behind every sovereignty is a sovereign. But who is the sovereign? In describing a sovereign, Austin said:
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 superior is sovereign in that society.
With this, Austin meant by a sovereign a person or group of persons who are in a superordinate position
over the rest who must be subordinate. It is a pyramidal relationship with the law giver occupying the
apex and the subjects the bottom.

Note that Thomas Hobbes had defined a sovereign as “the sole legislator … having power to make and
repeal laws … when he pleaseth.” Jeremy Bentham offered a similar definition: law is as “conceived or
adapted by the sovereign in a State.” On his part, Bodin saw a sovereign as ‘he who makes law for the
subject, abrogates the law which is already made, and amends obsolete law.’
Note that in contemporary times, sovereignty is, depending on the circumstances, shared amongst the
State, its organs and its people, with that of the people ultimately holding sway. Thus, under Chapter II of
the CFRN 1999, sovereignty belongs to the people. And Reisman talks about people’s sovereignty
displacing the sovereign’s sovereignty.

20
A sovereign State is a State that is independent of both internal and external control. The sovereign –
whether comprising an individual or a group of individuals – is the repository of the ultimate legal
authority in the State. How then do we identify a sovereign? Austin provides an answer as follows:
If a determinate human superior, not in a habit of obedience to a like superior, receives habitual
obedience from the bulk of a society, that determinate superior is sovereign in that society, and that
society

Therefore, the existence of a sovereign implies an independent State or a political society. In other words,
a sovereign ceases to be such where he owes allegiance to some other superior authority. The implication
of this position for a federation like Nigeria under the military is, as Elegido has suggested, that a
military governor or administrator of a State in the Federation will not be a sovereign and the State will
not be an independent political society because the governor or administrator is in the habit of obeying
the head of State. Whether or not the same can be said of the State in a civilian democracy is debatable.

According to Austin, the sovereign is characterized by illimitability, and unity or indivisibility. The former
means that the sovereign is the supremo on whom no superior could impose any legal duty. In other
words, the powers of the sovereign are not subject to legal limitation. Therefore, he said that ‘supreme
power limited by positive law is a flat contradiction in terms.’ Regarding the feature of unity,

Austin was of the view that sovereignty should be exercised by a single person or a body of persons.
However, the identity of the sovereign proved difficult for Austin as he variously identified the sovereign
as the Crown, the Queen, Lords and Electorate.
(b) Command
Austin perceived law as a command issued by a political superior to whom the majority of members of
society are in the habit of obedience, and which is enforced by a threatened sanction.
By using the term ‘command,’ Austin meant to convey the superhuman nature or the superiority of the
commander or the sovereign over other (inferior) persons who must obey such commands, and the
compulsion of such commands which include laws, rules and regulations. And, from the point of view of
positivist aversion to natural law, such commands exclude moral law.
Therefore, if a rule or law does not proceed from such commander then it is no law despite its goodness.
On the other hand, if the sovereign enacts a law, it is law and a valid one at that irrespective of its
badness or moral turpitude or blameworthiness. This does not mean that every law must always, in fact,
issue out from the commander because, by the principle of subordinate legislation, he can delegate his
subordinate to do so. Where this is the case, the force of the law does not derive from the subordinate but
from his principal.

But what is the status of existing laws commanded by deceased sovereigns who were in office before the
current sovereign? To whom is the legitimacy or validity of such law attributed? Austin’s response is
that the current sovereign tacitlycommandsthelawstotheextentthathe permitsjudicialenforcementofthe laws. We can locate a
comparator in the Pure Theory of Law where Kelsen said that in relation to revolution that, upon
the successful overthrow of a previous government, the incumbent government is deemed to have made
preexisting laws or that the pre-existing laws remain in force by the grace of the new government.

21
How about customary law? Are they commands of the sovereign? Austin equally had a tough time
surmounting this challenge. Elegido, for example, asks who has commanded the rule that the payment of
bride price is a necessary requirement for the validity of a customary marriage. Austin’s reply is that
such custom is still attributable to the commander because customs are indirectly commanded, by being
made ground of judicial decisions. He said that:

Customary laws are positive laws fashioned by judicial legislation upon pre-existing customs. Now, till
they become the grounds of judicial decisions upon cases, and are clothed with legal sanctions by the
sovereign one or number, the customs are merely rules set by options of the governed and sanctioned or
enforced morally.
(c) Sanctions
Note that the element of coercion exists in Austin’s definition or characterization of law. He achieved this
by stating that such commands must be backed by sanction or threats of sanction. Recall that Thomas
Hobbes had said that a law without sword is but mere word. The utility of sanction in law cannot be
overemphasized.
For example, the criminal law would be a toothless bulldog were it to merely prohibit theft without
stipulating the consequences of any violation such as the payment of fine, damages, restitution, or
imprisonment.

According to him, sanctions are based on motivation by the fear of ‘evil.’ He continued:
If you express or intimate a wish that I shall do or forbear from some act, and if you will visit me with an
evil in case I comply not with your wish, the expression or intimation of your wish is a command. A
command is distinguished from other significations of desire not by the style in which the desire is
signified, but by the power and the purpose of the party commanding to inflict an evil or pain in case the
desire be disregarded.

CRITIQUE OF AUSTIN
As a typical positivist, Austin propounded the command theory in order to tell us all that any law is not
just law; that a law properly so called must be that derived from not just an indeterminate man or body of
men but from a determinate sovereign to whom everyone else owed the duty of obedience. However, this
theory is fraught with some problems that we will consider below.

First, is the observation that as there was no precision in identifying his sovereign in classical times so is
such sovereign unidentifiable in contemporary systems of government. His theory appears to fit in more
with an absolutist or tyrannical system of government under which one supreme man or a group of men
subjects the rest of the society to their whims and caprices. Such regimes are sustained by force of arms.
In the modern state system where the respect for human rights is one of the foundational bases of
governance, Austin’s sovereign does not exist anywhere.

Note that under contemporary governmental systems, the sovereign is no longer the head of State; he is
now a mere symbol of the sovereignty of the State. Gone are the days when the king could do no wrong.
In modern times, everyone has been brought under the suzerainty of the law. In fact, the sovereign’s
sovereignty has been displaced by the people’s sovereignty. Thus S. 14 of the CFRN 1999, for example,
provides that sovereignty belongs to the people of Nigeria from whom government derives all its powers
and authority.

Austin had said that the sovereign has the quality of illimitability. But under the doctrine of rule of law,
there is no room for such absolutist sovereign or government. The implication of this is that even the so-
called sovereigns are limited by the constitutions and laws of their countries.

22
Under the CFRN 1999, the President obviously exercises enormous powers but they are not unlimited.
He is subject to the oversight and investigatory powers of the National Assembly. He can
even be impeached from office.

Secondly, law cannot always be a command of the sovereign especially for laws pre-dating his coming to
power such as laws enacted by erstwhile sovereigns, common law and equity, customs, etc. Attempts by
Austin to attribute the validity of these laws to the incumbent sovereign were, to say the least, an exercise
in linguistic irresponsibility. In this connection, Dias noted that:

It is artificial to pretend that any Member of Parliament believes that the law of the land has emanated
from his commands, for the vast majority of laws existed before he was born. To attribute commands to
people, who have neither commanded nor believe that they have done so, is a fantasy.
Thirdly, Austin is credited with seeing law as orders backed by the threat of application of sanctions.
Austin’s viewpoint appears to apply only to criminal law cases where prohibition is followed by sanction.
Note that even a fellow traveler in the train of legal positivism, Prof. Hart, criticised Austin’s employment
of ‘command’ to carry through his theory. In this regard, Hart distinguished between duty-imposing laws
and power-conferring laws. The former apply in the realm of criminal law. In relation to power-
conferring laws, Hart observed that these were laws meant to allow private persons exercise their rights
in their relationship or transactions with others without sanctions hanging on their necks like the sword
of Damocles. Such relationships or transactions include contracts, will, marriage, etc.

Moreover, when Austin said that the inferiors habitually obey the command of the sovereign, he probably
meant such habitual obedience to be part and parcel of the character of the command. If this is the case,
then the command would be undermined by habitual disobedience. Would such command cease to be law,
to be valid, by the mere fact that it is habitually disobeyed? Is there no separation of the validity of the
law and its enforcement? Note Kelsen’s theory which is to the effect that disobedience of norms in the
normative legal order does not affect the validity of the legal order with a proviso, however, that the
validity can be undermined only where such disobedience or non-enforcement is widespread and
enduring.
In the fourth place, because international law does not reflect the coerciveness of municipal legal system,
Austin had denied that international law was law and rather preferred to derogatorily refer to it as
international positive morality? It is true that municipal law is coercive because legal relationship
therein is vertical.

However, that international law does not replicate the coercive paraphernalia of municipal legal order
does not justify the denial of its legal status. Since international law essentially regulates relations
amongst states that are sovereign and equal, it is unique. Thus, Rosenne notes that it is a law of
coordination, not subordination – a law regulating horizontal relationship. In fact, international law
– as expressed in customs, treaties, resolutions and decisions of international or national arbitral awards
– is law. It may not be as effective, or command habitual obedience, as municipal law but, contrary to
Austinian postulation, international law is law.
From the foregoing, we could conclude that no matter the forcefulness of Austin’s arguments, his theory
raised more questions than answers. Perhaps, it is not surprising that the theory has been described as
being marred by ‘sterile verbalism,’ and ‘naïve empiricism.’

23
LEGAL POSITIVISM: HANS KELSEN (1881-1973)
He was a central figure in drafting the Austrian Constitution (adopted in 1920), became 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. His positions on several issues changed in subtle but important ways. According to
him, legal positivism is about the analysis of legal concepts devoid of any reference to historical inquiries
into the causes or origins of laws, sociological inquiries into the relation of law and other social
phenomena, and moral inquiries as to the goodness, badness or social aims of law. His extremely
positivisticposture informed the name of his theory 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. Divine, sacred rights are unsupported. 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.

As a positivist, Kelsen sought to furnish a formula that would enable him define and describe law without
reference to any non-legal factors. He believed that the existence, validity and authority of law had
nothing to do with non-legal factors such as politics, morality, religion and ethics.12 He meant to focus
exclusively on the science, and not on the politics, of law. He insisted on the independent consideration of
the science of law. The Unit comprises such sub- topics as hierarchy of norms, grundnorm and
revolution.

ESSENCE OF PURE THEORY OF LAW

Kelsen understood law to be a system of coercion imposing norms concerned primarily with the
application of sanctions to persons who have acted in a particular manner. Recall that his definition is
consistent with that offered by Austin. Austin had defined law as an order backed by sanctions (in the
form of deprivation of liberty or property).

According to Bix, there are two basic starting points for understanding Kelsen’s approach to legal
theory. First, normative claims – arguments for how one ought to act or for how things ought to be – can
be grounded only on (justified by) other normative claims. This argument, which is commonly attributed
to David Hume, states that one cannot derive a normative conclusion from purely factual premises: “one
cannot derive an ‘ought’ from an ‘is.’” This is another way of saying that a factual description of events
cannot constitute enough ground for prescribing that such events ought to take place. For example, a
survey may reveal that people in a particular community worship in a Catholic Church every Sunday. But
this would not justify the conclusion that such people ought to worship at that particular Church on
Sunday.

You could recall that the gravamen of the contest between natural law and positive law theorists comes
down to the difference between ‘ought’ and ‘is.’ The ‘ought’ proposition has to do with what the law
ought to be. On the other hand, positive law focuses exclusively on what the law is right here and now. It
is in the tradition of this positivistic approach that Kelsen developed his pure theory of law.

Second, lines of justification must necessarily come to an end at some point. For example, an atheist
policeman accosts a vehicle with a tinted glass at a checkpoint and orders the driver to park. “How many
of you are in the car?” asks the policeman. “I and three others,” answered the

24
driver. Then, the policeman asked the driver to open the doors in order to know their identity. But there
was no one inside the car. Then the policeman was curious, alleging that the driver was trying to make a
fool of him. The driver denied such charge and defended himself by saying that the three others included
God the father, God the Son, and God the Holy Spirit. But the officer asked “Where are they?” The
driver could not proceed beyond this because he expected everybody (including the policeman) to know
that the persons he demanded to see are spiritual forces. The morale here is that there comes a time when
we must presume certain things to exist or when we just have to believe or have faith. Thus, Kelsen’s
discussion of Grundnorm is based upon supposition or presumption.

NORMS
To Austin and Bentham, law is a system of rules. However, Kelsen defines law as a system of norms, as
the primary norm which stipulates the sanction. Austin and Bentham’s system of rules approximates to
Kelsen’s system of norms. Remember that there is a similarity between Kelsen’s definition of law and
Austin’s characterization of law as the command of the uncommanded commander backed with sanctions.
Recall also Thomas Hobbes’ morale that a law without sword is but a mere word. A norm 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.

He identifies the provenance of a norm in custom and legislation. According to him:

Norms either arise through custom, as do the norms of common law, or are enacted by conscious acts of
certain organisations aiming to create law, as a legislature acting in its law- making capacity.
Recall that the sources of Nigerian law include, inter alia, customs and common law.
According to Kelsen, the law does not just prescribe certain types of conduct.

Additionally it couples such prescription with sanction. To him, the element of sanctions – which is a
significant constituent of law – is what makes the law to be effective. In this wise, law becomes a coercive
order of human behaviour. In the event of violation of legal stipulation, law can be understood as ‘norms
addressed to officials’ such as judges or administrative tribunals to enforce the law against the delict
(which is a condition or a justification for the sanction).

Thus, against a public official who has received bribe from a multinational company (MNC), ICPC Act
2000 or the EFCC Act 2004 is an address to the high court judge to enforce the provisions of the statutes
by convicting, sentencing, or fining him and/or confiscating or forfeiting assets he derived from such
corruption.

VALIDITY AND HIERARCHY OF NORMS

A norm is either valid or not valid. A norm’s validity is derived completely from its having been authorized
by another legal norm of a higher rank in the hierarchyofnorms(tobediscussed below).Forexample,iftheVice-Chancellor of the
National Open University of Nigeria (NOUN) makes rules to regulate the dress code of
students, the validity of such rules would reside in the NOUN Act
1983whichauthorizestheVCtomakesuchrules.Ifnosuchpowerexists,thenthe rules – no matter their nobility or utility – would be invalid.
Also, such rules, even where initially justified by the NOUN Act, would be generally invalidated with the
invalidation or repeal of the parent Act.

On the issue of hierarchy of norms, note that every norm depends – for its authority – on a

25
superior norm. All norms whose validity may be traced back to one and the same basic norm (to be
discussed below) form a system of norms, or a hierarchy of norms. They are linked hierarchically from
the lowest to the highest norm. Thus, to the extent that all the existing laws including bye-laws, rules and
regulations, state laws, statutes and the constitution are so linked, they constitute a hierarchy.

BASIC NORM OR GRUNDNORM

According to Kelsen, a ‘basic’ norm, or the grundnorm, is one the validity of which does not derive from
a superior norm. It is the commencement of a specific chain of legal norms. The grundnorm is the
ultimate source of authority for all other norms below the rung of the ladder of the legal order. For
example, in tracing the validity of Police regulations on security of persons and property, we will be
referred to the Police Act. Thereafter, the validity of the Police Act would be established by reference to
the National Assembly which enacted (or which is deemed to have enacted) such Act pursuant to the
CFRN 1999. But is the CFRN 1999 the highest in the hierarchy of norms? Is this ‘final postulate’ which
gives validity to other norms?

In a legal-logical sense, the constitution is not the grundnorm. Rather, it is the idea or spirit behind it.
Thus, according to Kelsen, the basic norm is pre-supposed by legal thinking. It is the presupposed
starting point of the procedure for creating positive law. It is neither a norm created by custom nor the
act of a legal constitution. In other words, grundnorm is assumed, supposed and taken as given. The
implication of this is that in linking up the norms in the hierarchy of norms, there comes a time when the
norm at the height cannot be attributed to another higher norm, necessitating a situation where the
grundnorm becomes, quite unfortunately for an empirical theory as the pure theory of law, a mental or
metaphysical construct.

In what sense, then, is the constitution, e.g., the CFRN 1999, regarded as the grundnorm? It is a
grundnorm only in a legal positive sense. This approach is adopted in order to save Kelsen’s theory from
absurdity or so as to give it some realistic grounding. Therefore, for the purpose of legal analysis, the
CFRN 1999 is usually thought to be the grundnorm.

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.
Although inefficacy may not affect the validity of a norm in the short term, it may do so ultimately. 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.’

CHANGE IN BASIC NORM OR REVOLUTION

A change in the basic norm is another way of saying that a revolution has occurred. An act

26
becomes a norm because it is authorized. But where such act is unauthorized, that is, in a manner not
prescribed by existing law, then a revolution has occurred.

Revolution means different things to different people. Basically, it may be peaceful or forceful. Such
revolution may be directed against the social, political, economic or legal life of a society. The sense in
which revolution is used here is in a legal sense, that is to say, we are concerned with what in law
amounts to a revolution. [Refer to the recent military take-over of government by Guinean soldiers
immediately the death of the civilian President was announced].

According to Kelsen:13 A revolution…occurs whenever the legal order of a community is nullified and
replaced by a new order in an illegitimate way, that is, in a way not prescribed by the first legal order
itself. It is in this context irrelevant whether or not this replacement is effected through a violent uprising
against those individuals who so far have been legitimate organs competent to create and amend the legal
order…. From a juristic point of view, the decisive criterion of a revolution is that the order in force is
overthrown and replaced by a new order in a way which the former had not itself anticipated.

From the foregoing, it is clear that revolution occurs when:

(a) A new order comes into being in an illegitimate way, that is, in a manner not prescribed by the
existing order.
(b) An illegal act is not creative of law but, when it is efficacious, and becomes acceptable, it becomes
a law-creating fact; and
(c) Failure in overthrowing the existing order is treasonable while success is law-creating. How
then does the grundnorm change? See the:
(a) Pakistani case of State v. Dosso14 (Kelsen’s theory of revolution was affirmed); and the
(b) Ugandan case of Uganda v. Commissioner of Prisons, Ex parte Matovu15 (Kelsen’s theory was
also accepted).
However, see the:
(c) Nigerian case of Lakanmi & Kikelomo Ola v. A.G Western State, Nigeria16 The
Supreme Court (SC) held that the Federal Military Government
(FMG) was not a revolutionary government. In its swift reaction to the SC’s rejection of Kelsenian theory,
the FMG enacted the Federal Military Government(Supremacy&Enforcement ofPowers)DecreeNo.28of1970.TheDecreere-
statedthepositionofthegovernmentthatit wasarevolutionary government;
(d) Ghanaian case of Sallah v. A.G of Ghana17 where Kelsen’s theory was equally rejected;
(e) Pakistani case of Jilani v. Government of Punjab18 in which the Pakistani SC disowned Kelsen’s
theory; and
(f) Southern Rhodesian (now Zimbabwean) case of Madzimbamuto v. Lardner-Burke.19 The
questionfordeterminationinthiscasewaswhetherthe ‘declaration of independence’ and the
proclamation of the 1965 Constitution superseded the 1961 Constitution. It was held that a
usurpinggovernment cannot be a lawful government.

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:
First, 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.

27
Thus, Laski, in his Grammar of Politics (1925), described the theory as ‘an exercise in logic and not in
life.’

Secondly, 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.

Again, 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.

In the fourth place, 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. His theory turns out to be a case of the pot calling kettle black. It
is abstract and unreal.
All this may well have justified the conclusion that his pure theory of law embodies almost all the
inaccuracies of positivism.

CONCLUSION
Kelsen is the last of positivists that we considered in this Unit. Being a positivist, Kelsen propounded the
Pure Theory of Law in order to convey the message of rejection of the methodology of natural law. Such
methodology relies on idealism, metaphysics, ethics, sociology, etc. It was Kelsen’s desire to project
positive law as a law that can stand independently of the values or virtues of natural law or morality.

His Pure Theory of Law attempted to do just that by looking at several relevant aspects of law. In his
exposition of grundnorm, he appears to have assisted us in locating the supreme law of the land. But his
positivistic methodology was shortcircuited when he said that grundnorm is a presupposition or
supposition. In legal discourse, something is presupposed when its existence cannot be proved or
physically demonstrated. Presupposition belongs to the realm of natural law, not to positive law.
Therefore, Kelsen’s reliance on an approach peculiar to natural law

28
smacks of betrayal of the cause of positivism or an indirect admission that his criticisms of natural law
were, probably, extreme.

The Austin’s position would be no more however it should be noted that this is still applied in
modern legal discourse as seen below;

Most states including Uganda have codified their law in legislation, in Uganda attempts have
ever been made successfully in some countries and unsuccessfully in others to recognize/
codify customary law for example in BrunokiwuwaVsIvanserunkumaand NamaziJuliet.3
where the court recognized the customary practice of the people from the “Ndiga clan”
that people from the same clan couldn’t get married and court held that the two adults could not
get married because they all came from the same “Ndiga clan”

The question in relation to moral authority of the law maker of the law being
unquestionable as an aspect of severability is still relevant, this was clearly manifested in
Uganda during the military dictatorship of Idi Amin to that upon overthrowing Obote’s
government he went ahead to rule by decree passing laws that the courts administered
without questioning his moral authority to make them and also called himself fountain of
Honor.

There is prevalent existence of legislation/law which even though unjust, unfair,

immoral have been applied for example laws regulating prostitution, homosexuality,
sedition have been upheld by judges which exist where there are constitutional
standards. For example in the case of UgandaVsHarunaKanabi.4 Court
stressed/insisted on enforcing the law on sedition arguing that it was the law not
withstanding fact that she felt it offending human rights, like wise in the dissenting
opinion of Mayindo DCJ in the case of SalvatoriAbukiVsAG.5Stated that court should
enforce the law even though such law is cruel, and it was also supported by H.L.Hart
while critising Austin position Admitted that in absence of an expressed
constitutional/legal provision, it couldn’t follow from a mere fact that a rule violated
standards of morality since it wasn’t rule of law and that the

3
4
(criminal case number 997 of 1995)
5
Ibid.

29
 rule was morally desirable.

Applicability of the positivist’s theory of law

Despite the emergence of the normative positivism as propounded by jurists like Hans
Kelsen, H.L.Hart with their disagreement with the separation of the law from morals

The Austin’s position would be no more however it should be noted that this is still
applied in modern legal discourse as seen below;

• Most states including Uganda have codified their law in legislation, in

Uganda attempts have ever been made successfully in some countries and
unsuccessfully in others to recognize/ codify customary law for example in
BrunokiwuwaVsIvanserunkumaandNamazziJuliet.6 where the court
recognized the customary practice of the people from the “Ndiga clan” which stated
that persons who were from the same clan could not get married and there fore

• The question in relation to moral authority of the law maker of the law being
unquestionable as an aspect of severability is still relevant, this was clearly manifested
in Uganda during the military dictatorship of Idi Amin to that upon overthrowing
Obote’s government he went ahead to rule by decree passing laws that the courts
administered without questioning his moral authority to make them and also called
himself fountain of honor.

• There is prevalent existence of legislation/law which even though unjust, unfair,

immoral have been applied for example laws regulating prostitution, homosexuality,
sedition have been upheld by judges which exist where there are constitutional
standards. For example in UgandaVsHarunaKanabi.7 .where court
stressed/insisted on enforcing the law on sedition arguing that it was the law not
withstanding fact that she felt it offending human rights, like wise in the

6
ibid
7
ibid

30
 dissenting opinion of Mayindo DCJ in the case of
SalvatoriAbukivsAttorney General.8(Cap no 1 of 1998). Stated that court
“shouldenforcethelaweven thoughsuchlawiscruelanditwasalsosupportedbyHLHartwhilecruising
Austin’spositionAdmittedthatinabsenceofanexpressedconstitutional/legal
provision,itcouldn’tfollowfromamerefactthataruleviolatedstandardsof
moralitysinceitwasn’truleoflawandthattherulewasmorallydesirable”

3. HISTORICAL SCHOOL OF

LAW INTRODUCTION
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 in this Module.

History is a record of our past. As man has a past so does law. The importance of the historical school of
jurisprudence cannot be over-emphasized. Apart from standing in opposition to the 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. According 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.

This Unit considers the theory of Savigny on the history and custom of the people, and how they affect the
law that is meant to govern their conduct.

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. This is 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)
summarizedhishistoricalapproachtolawasfollows:
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

8
ibid

31
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 vacuo, 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 twofold
– division of functions and classes, and the technicalization of the law. On the second reason, Elegido
suggests that there is no indigenous comparator for such legal concepts as, for example, CIF contracts or
land registration.

On the fate of legislation in a State, Savigny states that legislation is of subsidiary importance in legal
development. According to him, ‘living law’ emerges neither from the commands of the sovereign nor
from the arbitrary will of a legislator but from the people. In this regard, Savigny states that legislation
would be effective only when its contents reflect the values and virtues of the people’s customs. It should
be recalled that Savigny said this despite the fact that he was the head of the Prussian Department for the
Revision of Statutes. You should contrast Savigny’s worldview with Austin’s command theory which ties
legal development to the uncommanded commander.
Perhaps, because he was a scholar of classical Roman law, he relied on Roman law for guidance in his
exposition of the legal path that was befitting his country.

To him, Roman law seems to have ‘eternal significance’ for the intellectual underpinning of the volksgeist.
For example, Savigny’s History of Roman Law in the Middle Ages (1831) is suggestiveoftheexistenceofconceptsborderingonthe ‘nature
of things,’ or natural law.

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.
With this background in mind, the following could be said of the historical approach to law as canvassed
by Savigny:
(a) The concept of received law is anathema;
(b) Law is inferior to the custom of the people. Therefore, custom of the people must be their laws;
(c) Law personifies the people, and signifies a paradigm of their values;
(d) There is no universal law. The universality of law is limited by geography and culture;
(e) Law is not static. It is amenable to development;
(f) 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. Therefore, he
said that:

32
Law grows with the growth and strengthens with the strength of the people and finally dies away as the
nation loses its nationality or as a people loses its individuality.
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 the
experience of earthquakes.

Within the context of African experience, we may ask the extent to which customs determine the laws of
Anglophone, Francophone and Lusophone Africa. Evidently, these parts of Africa were colonized by the
English, French and the Portuguese respectively. The colonists came with their laws many of which
displaced pre-existing customs. Although indigenous people initially rejected such displacement, they
have come to accept or retain many of such laws in their legal systems at independence and beyond. In
Nigeria, for example, the received English Law (common law, equity and statutes of general application)
has become part and parcel of Nigerian law.

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. As Curzon concludes, the suggestion that legislation
predicated upon the spirit of the principles of Roman law would have coincided with the demands of the
German ‘folk spirit’ is not easy to sustain.

In contemporary times, the irrelevance of Savigny’s advocacy is glaring. This is because in our

33
global village, there is mutual inter-dependence so that, according to need, countries freely import
foreign laws into their legal systems. For example, Ethiopia’s Haile Selassie employed the French
Professor, Rene Dafr, to write the country’s Criminal Code, which was fashioned after the French law.
Note that the provisions in many international Conventions signed and domesticated by most countries
were originally the customs or the foreign laws of very few countries. Although their domestication does
not undermine the importance of customs, it demonstrates the gross limitation of Savigny’s thesis on
custom as the substructural or basic source of law.

SUMMARY
The historical approach to law holds that legal development is a function of the people. In other words,
the law is tied to the mores, culture or tradition of the people. Savigny perceived law as reflective of the
spirit of the people, the volkgeist.Tohim,legaldevelopmentisevolutionary,not revolutionary.Lawsareto be found, not made
or given. According to Savigny, legal development passes through the early stage of unwritten custom, then
codification of those customs and, lastly, purposeful legislation.

He denies the universality of law. [Recall that Cicero defined natural law as unchanging, universal and
everlasting]. In denying law these qualities, Savigny emphasized the temporality of law and, the
importance of time, space and geography in legal development. In other words, Savigny argued for the
relativism of law.
However, Savigny is criticised on several grounds.

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
hacan 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. Recall Austin’s commander, who
was above the law, and whose commands must be obeyed by inferiors.

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 Nigeria 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.bits in
historical development. According to him, law

STATIC AND PROGRESSIVE SOCIETIES

Maine further propounded that for the purpose of the development of law, society can be

34
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. Cast your mind back to the clash between
common law and equity which was finally resolved in favour of equity through the JudicatureAct1875.

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. Recall again the conflict between
common law and equity that we referred to in the preceding paragraph.
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 is also known to have 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 pconferred 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).osition in his social
group remained fixed; it was imposed,

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 threestage 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.

35
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
statusbased. Also, in Canada, the status of a single mother is recognized in law.

4. SOCIOLOGICAL SCHOOL OF

LAW INTRODUCTION
This Unit 1 in this Module introduces the discourse on sociological approach to jurisprudence,
looking at the contributions of Jhering (1818-1892), a German jurist; Erlich (1862-1922), an Austrian
jurist; and Durkheim (1858-1917), founder of the French school of sociology. Unit 2 will look at the
works of Max Weber (1864-1920) and Roscoe Pound (1870-1964).

The Sociological School of jurisprudence considers law or legal development from the perspective of the
people in the society. Perceiving law as a social phenomenon, it posits the harmonization of law with the
wishes and aspirations of the people. In other words, it insists on the harmony between law and the
interests of the people. Therefore, if law becomes inconsistent with the people or even violates their
interests or expectation, such law is not worth it. Such law is not people-oriented.

We may draw a comparator between the sociological theory and the historical approach because they
are both people-centred. We note, however, that while the sociological approach consapproach looks at
the past or the history of the people.
The sociological approach offers a window of opportunity for legislators and reformers to take into
account contemporary interests of the people in the performance of their duties.iders the here and now of
the people, the historical

SOCIOLOGICAL APPROACH
The term ‘sociology,’ which was invented by Comte (1798-1857), is the study of the behavioural pattern
of people in relation to their environment or surroundings. Within the purview of sociology, law is
regarded as a social phenomenon which reflects human needs and aspiration. Thus, Faris (p.149) defines
sociology as:
[A] branch of the science of human behaviour that seeks to discover the causes and effects that arise in
social relations among persons and in the intercommunication and interaction among persons and
groups.20

The Sociological School of Law is a collection of academics and practitioners committed to the study of
law as a social phenomenon. In other words, sociological approach to jurisprudence is the study of law in
its social setting or as a social institution. In his Mechanical Jurisprudence (1908), Roscoe Pound
explains that sociological movement in jurisprudence is:
[A] movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to
the human conditions they are to govern rather than to assumed first principles; for putting the human
factor in the central place and relegating logic to its true position as an instrument.
In order to do justice to this topic, we shall be looking at the theories of Jhering; Erlich; and Durkheim.

JHERING

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To Jhering, law existed to protect societal interests and individual interests. But, as would be expected,
the two interests are often at cross-purposes. When such occasion arises, law coordinates and mediates
in the social conflict between them. Law impartially mediates and resolves the competing interests.
Despite such conflict, he stressed the mutuality of both interests because, afterall, the object of the society
is to secure and guarantee the satisfaction of human wants.
Note that law is purpose-driven. In other words, law exists in a social setting to achieve some social
purposes. For example, the preamble to the Constitution of the Federal Republic of Nigeria (CFRN) 1999
declares in part that the Constitution exists “for the purpose of promoting the good government and
welfare of all persons in our country on the principles of Freedom, Equality and Justice, and for the
purpose of consolidating the Unity of our people.”

According to him, interests determine, dictate or influence purpose. For a proper understanding of the
law, interests behind it must be thoroughly studied. The law aims at the equalization of conflicting social
interests. In effect, the law is ‘the realized partnership of the individual and society.’ Jhering believed in
the relativism of law. According to him, societal purpose and standards will change in time and space.
Therefore, the idea of the existence of “immutable natural law” as an absolute guide to social and legal
activity is unrealistic. In other words, Jhering rejects a universal law that will minister to the needs of all
at all times.

He was of the view that law aims at creating unity from diversity. In his view, law aims at the good of the
society and permits individuals to realize their purposes. Law is the mediator, the balancer and the
harmonizer. Legal institutions enable man to add to the quality of his being.

ERLICH
In his Fundamental Principles of the Sociology of Law (1912), Erlich declared that the centre of gravity
of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society
itself. To him, there were two sources of law: legal history and development, and “the living law.” Living
law grows within society. It may be so widespread to such an extent that it becomes the basis of the
conduct and interaction of members of the society even though it has not been formally proclaimed to be
the law.

He differentiated between norms for decision and norms of conduct. Norms for decision are laws, rules
and regulations in the form of the Laws of the Federation of Nigeria (LFN), Statutes, Acts of the National
Assembly and judicial decisions thereon. On the other hand, norms of conduct are self-generating social
rules dependent upon no superior sanctioning authority. These are moral codes applicable to persons as
individuals or as members of social clubs.
He recognized the existence of a gap between living law and positive law.

Against this background, therefore, it is the duty of legislators and judges to recognize the reality of this
gap in order to come up with legislations and decisions that will give vent to the yearnings and
aspirations of members of the society or polity.
But what if the living law is damaging to the interest of the people as a whole or to the greatest happiness
of the greatest number? For example, is Erlich understood as suggesting that since corruption appears to
be part and parcel of the Nigerian life that the National Assembly should find a way of recognizing the
gap between the current anti-corruption regime and the ‘living law’ of rampancy of corruption and,
therefore, find a way of legislating corruption into existence?
To the extent that Erlich did not qualify the applicability of his theory on ‘living law’ we could take it that
his theory would accommodate such legislation of corruption into existence.
However, because we know the deleterious effects of corruption, such proposition would be

37
unacceptable. Herein lies the inadequacy of Erlich’s theory.

As attractive as his theory may have been or sounded, his failure to make allowance for exceptions, that
is, situations where the living law can or must be suppressed or undermined weakens the strength of his
theory.
Note that living law can function best if it harmonizes with the moral consciousness of the society. There
was a time in history when slave trade and racism were living laws. In fact, they were actually legislated
into positive law.

But the fact still remained that the practices were evil. When the anti-slave trade and civil rights
movements emerged to dislodge the living laws, they were ferociously resisted by those who benefited
from the living laws. It took the persistence and political will of several States to enforce the law against
the practices. In contemporary times, those living laws have been replaced by liberty of all and the
freedom of blacks. 3.4 DURKHEIM

Durkheim perceived law as an ‘index to the level of development’ within a community. In his
investigation of the development of early societies, he found various levels of social cohesion or solidarity.
He categorized such solidarity into two: mechanical solidarity and organic solidarity. A mechanical
solidarity society is marked by underdevelopment, uniformity of values, low level individualism and
mutual assistance. Law tends to be strict and repressive while sanctions are severe. This is because there
is usually the belief in offender-oriented penal system. The system is to the effect that the offender must be
severely punished for the purposes of retribution and deterrence. In otherwords, this society exhibits
communal tendency where one may be another’s keeper.
On the other hand, a society with traits of organic solidarity is more advanced.
Herein, there are specialization, division of labour, and individualism. In organic solidarity, the penal
policy is victim-oriented. Thus, restitution tends to replace mere vengeance. Here, the objective is not to
punish but to restore the state of things to status quo ante bellum.

Durkheim was a moralist and believed that law derived from the morality of the society. Law and
morality produce an amalgam of ties which bind individuals to society. He demonstrated his moral
credentials by privileging laws emanating from the morality of the people over any other law, for
example, in the area of crime and punishment. According to him, an act is criminal when it offends the
collective societal conscience. To him, members of the society are not shocked or angered by conduct
merely because it is a crime by legislation (mala prohibita) but because it shocks societal collective
conscience (mala in se). He located the purpose of punishment not in the theory of deterrence but in the
need to satisfy the common consciousness, that is, societal sentiments. He believed that the punishment of
an offender is ‘reparation’ offered to the feelings of members of the community.
However, Durkheim’s approach to law could not impress many jurists because he failed to back up his
claims with necessary data sourced from field work.
Additionally, his ‘social solidarity’ is criticized on the ground that there is no necessary correlation
between solidarity and the level of civilization. Also, his mechanical solidarity is doubted because recent
research has shown that primitive societies were not necessarily repressive. Rather, there is evidence of
non-repressive primordial systems.
Also, he is criticized for tying earlier societies to the principles of retribution and vengeance. This is
because experience and research have shown that many primitive societies embraced justice system that
is based on restoration of the victim to status quo ante bellum. In fact, there are many modern legal
systems which prioritize the penological theories of retribution and vengeance over reparation, which
makes lex talionis the focal point of the criminal

38
justicesystem.

CONCLUSION
The Sociological School of jurisprudence attempts to look at law against the background of the people it
is meant to govern. It believes that law cannot exist in the absence of the people, that law must be part
and parcel of the people in order to command legitimacy.
However, though ‘living law’ as propounded by Erlich harmonizes with the aspirations of the people, it
gives cause for some concern. This is especially so where such living law does not immediately or
ultimately promote the well-being of the people or society. An instance is corruption which persists
across every nook and cranny of Nigeria. Do we then legalize corruption? For enlightened self-interest,
many societies have been able to recognize the limitation of the living law theory and rejected the
temptation to legislate such law into existence.
Thus, even in Nigeria, corruption is rather suppressed than promoted.
We may end this discussion by stating that the contributions of the sociological arm of jurisprudence to
legal thought cannot be overemphasized. They assist us in aligning our legislation with the wishes and
aspirations of the people whose conduct it is meant to regulate. However, it is important to realize the
limitation of the theory.

SUMMARY
This Unit commenced with the background look at the meaning of sociology –which was coined by Comte
– and the sociological school of jurisprudence. The School is a collection of academics and practitioners
committed to the study of law as a social phenomenon. Proponents we considered included Jhering,
Erlich and Durkheim. Jhering examined the conflict between societal interests and individual interests,
and the mediating role of law. He also stressed that against the background of the fact that societal
purpose and standards change in time and space, it was unrealistic to insist on the existence of
“immutable natural law.”
The contribution of Erlich centred on the distinction he made between legal history and development, and
living law, and between norms for decision and norms of conduct. Living law grows within society, and it
may be so widespread as to be the basis of conduct of the people. In investigating the development of
early societies, he categorized such societies into mechanical solidarity and organic solidarity. While
law tends to be strict and repressive in the former, it is usually humane and restorative in the latter.
However, Durkheim’s theory is believed to have been unscientific. His theory has also been faulted for
its failure to properly appreciate the nature and character of earlier societies.

SOCIOLOGICAL SCHOOL
1.0 INTRODUCTION
Building on Unit 1, Unit 2 examines the theories of Max Weber (1864-1920) and Roscoe Pound (1870-
1964). Weber was a German jurist, economist and sociologist whereas Pound was the Dean of Harvard
Law School. While Weber sees law as social institution, Pound perceives it as an instrument for
balancing the security of society and individuals.
Regarding Weber, we will look at his categorization and analysis of the types of authority – traditional
authority, charismatic authority and rational-legal authority.
In connection with Pound, we will consider his views on interests, types of interests, and the way and
manner in which law can resolve the conflicts amongst the variety of interests in the society.
3.1 MAX WEBER
Max Weber was concerned with social order. In his Law in Economy and Society (1891), he located the
essence of social order in norms and the capacity to enforce them. To him, it is power that makes the law
effective. And power is the ability of persons or institutions to affect

39
the will and behaviour of others by coercion or the threat of such coercion. Animating or propelling the
exercise of such power is the acceptance by society of legitimate authority. Such authority is said to exist
where those persons accept their rulers as a living embodiment of the idea of “power through authority.”
3.1.1 Types of Legitimate Authority
In the aftermath of his investigation into the legal history of societies, Weber found that there are three
types of legitimate authority as follows:
(a) Traditional Authority
This type of authority existed in consequence of the community’s long habituation to the concept of
legitimacy based on tradition. Obedience of constituted authority was predicated not on enacted laws but
upon the belief that the rulers had an authority conferred by tradition. Recall the divine rights of kings
and the concept of the king can do no wrong. These were geared towards
giving transcendental coverage to the conduct of rulers in distant ancient past and insulating their
rulership from legal restriction. In other words, rulers of the age in question were elevated over and
above ordinary citizens; they were treated as gods or demi-gods.
i. Charismatic Authority
This is the authority derived from the charisma (gift of grace) of an extraordinary person – hero, prophet
– who seems to be invested or endowed with superhuman powers. Revolutionary leaders wield such
authority in the first years following their victorious revolutions. Notice that from the early 1960s till
around 1990s, military take-over of the reins of political power was rife in Africa. Coup plots were
celebrated by the people in the belief that some persons in messianic mission have arrived. Many leaders
who emerged from the overthrow of the old order had charismatic authority. The people attributed to
them the extra-human capacity to make things happen for the benefit of the people. But at the end of
1990, and nothing really to attest to the genuineness of the persons in the saddle, things fell apart. As the
so-called messiahs could not deliver goods and services, as they privileged their personal comfort over
that of the generality, the people lost faith in them and, ipso facto, the charisma vanished. Therefore, the
ensuing contradiction or gap between expectation and fulfilment undermined and destroyed the basis of
the ruler’s charismatic authority. ii. Rational-legal Authority This kind of authority is impersonal. It is
characterized by belief in the legality of legislation. Obedience is gained neither by traditional nor
charismatic authority but by virtue of the belief in the legitimacy or validity of
parliamentary/constitutional supremacy, which regulates the way and manner power is exercised
amongst the arms of government, and the rights and duties of citizens. For example, the CFRN 1999 is a
manifestation of rational-legal authority. Authority attaches not to the occupant of the office but to the
office itself. For example, S. 308 on the immunity of the President, Vice President, the Governor and
Deputy Governor exists not to benefit the persons occupying these offices but to dignify the office. That is
why the section applies only to the extent that the person in question is an incumbent.
Weber noted that this type of authority guarantees certainty, predictability and
i. stability within which a law of contract develops. He, therefore, concluded that itis a fertile
ground for the development of a capital society.

ROSCOE POUND
Roscoe Pound – who was a dean in Harvard Law School – is known to have been the most influential
proponent of the American Sociological jurisprudence. He essentially saw law as a social institution
created and designed to satisfy human (individual and social) wants.
He agonized over the fact that traditional scholarship focused almost exclusively on the law in the
textbooks to the detriment of the law in action. Law in action refers to the law that actually reflects the
current behaviour of the people. In other words, he was of the view that the society should be the focal
point of law and legal development, that the social mass must be able to

40
influence the law that regulates their behaviour. This approach has the potential to, in the long run,
eliminate unjust laws. Essential features of the legal order were the securing and protection of various
(often competing) interests in the society. He dwelt much on interests. In his Outlines of Lectures on
Jurisprudence (1943), he defined interest as:
a demand or expectation which human beings either individually or in groups, or associations or
relations, seek to satisfy, of which, therefore, the adjustment of human relations and ordering of human
behaviour through the force of a politically organized society must take account.
Note that legal protection of interest is usually expressed by conferring the status of a legal right on it. He
identified and classified interests into three groups _individual interests, public interests, and social
interests. Individual interests are ‘demands or desires involved in or regarded from the standpoint of the
individual life.’ They include personality (consisting of interests relating to an individual’s physical and
spiritual existence, for example, physical security, health, freedom of will, privacy and sensibilities,
beliefs and opinions); domestic relations (including interests of parents and children and the protection
of marriage); and substance (comprising interests of property, succession and testamentary
disposition, freedom of industry, contract and association, that is, those claims or demands ‘asserted by
individuals in title of the individual economic existence.’
Public interests are ‘demands or desires involved in or looked at from the viewpoint of life in a politically
organised society, asserted in title of political life.’ They include the interests of the State considered as a
juristic person, that is, its integrity, freedom of action and security; and interests of the State considered
as the guardian of social interests.
Lastly, social interests are those ‘wider demands or desires involved in or looked at from the standpoint
of social life in civilised society and asserted in title of social life.’ Such social interests enumerated by
Pound are many and they comprise:
(a) General security, including claims to peace and order (against those actions likely to threaten the
very existence of society), safety, health, security of transactions and acquisitions;
(b) Security of social institutions (domestic, religious, political and economic);
(c) General morals, that is, security of social life against acts offensive to general moral sentiments;
(d) Conservation of social resources, e.g., use and conservation of natural resources, protection and
education of dependants and defectives, protection of the economically-dependent.
(e) General progress, which is the assertion of the social group toward higher and more complete
development of human powers, including economic progress (freedom of property, trade, industry),
political progress (freedom of criticism), cultural progress (freedom of science, improvement of education
and aesthetic surrounding); and
(f) Individual life, involving the claim or demand of each individual to live a full life according to
society’s standards.
With this array of interests in a society, it is only a matter of course that contention, conflicts and
controversies will arise. How then does Pound expect these interests to harmoniously exist in the society?
His response is that law is really about reconciling, harmonising, or compromising these conflicting
interests either through securing them directly and immediately or through securing certain individual
interests so as to give effect to the greatest number of interests, or to the interests that weigh most in our
civilisation with the least sacrifice of other interests. All he appeared to be saying is if all the interests
cannot be enforced then most of the interests should be enforced. Alternatively, certain interests must be
prioritized over others and enforced with minimal collateral damage to other non-priority interests.
Pound was of the opinion that the concern of the law is to satisfy as many interests as possible and to
resolve any conflicts amongst the categories of interests he had identified.
He used ‘social engineering’ as a metaphor. According to him, law is an instrument of social
engineering, for balancing competing individual, public and social interests within the society. In

41
doing so, Pound argued that the tools of rules, principles, conceptions and standards must be employed.
As society progresses, Pound noted that ‘new interests’ will emerge or evolve.
Notice that international human rights law has witnessed the evolution of new generational human rights
in addition to the traditional first and second generational rights. Recognition of such new interests
would be realized subsequent to their being tested by reference to ‘jural postulates’ of a civilized society.
Those postulates embody societal values. Such reference would enable legislators to consider possible
modification of values through legislative reforms. According to Pound, pursuant to the postulates, the
citizens in a civilized society are entitled to assume:
(a) That others will commit no intentional aggression upon them;
(b) That they may control for beneficial purposes what they have discovered, created or acquired;
(c) That promises will be carried out in good faith and that unreasonable and unjust enrichment will be
prevented as far as possible; (d) That persons engaged in a course of conduct will act with due care so as
not to create unreasonable risk of injury to others;
(e) That citizens shall be entitled to assume that the burdens incident to social life shall be borne by
society; and
(f) That, as a minimum matter, ‘a standard human life’ shall be assured to every citizen.
Pound’s approach was for a functional approach to law. Also, his approach harmonizes with that of the
utilitarian school which propounds the greatest happiness of the greatest number of people. All he was
mostly concerned about was the need for the legal order to influence societal needs so that the law would
not appear foreign or alien to the people. He was, therefore, desirous of bridging the gap between the law
in textbooks and the law in action.
However, against the backdrop of the foregoing, he failed to tell us if the interests he identified are
exhaustive. Moreover, he has not been able to convince us about how conflicts generated by the variety of
interests can be resolved. Although he indicated that this can be done by weighing and balancing, he
failed to elaborate.
When you have to weigh, then certain interests must give way. What parameter do you use to weigh or
measure? Although he expected the minimum of interests to be trampled upon, it is still the case that
certain interests would be sacrificed.
If he adopted the utilitarian theory, then it means minority rights would have a raw deal.
Again, note that ‘civilization’ featured in his analysis of conflict resolution. But this should not imply that
those considered to be uncivilised cannot resolve conflicts. Note that if mediation is a yardstick for
measuring the level of civilisation, then those said to be uncivilised have been erroneously labelled. This
is because in these ‘uncivilised’ societies, conflicts are mediated and controlled by institutional
mechanisms.
4.0 CONCLUSION
This Unit dwelt on the theories of Weber and Pound. Weber introduced us to different types of authority
including traditional authority, charismatic authority and rational-legal authority. We note that in
modern systems of government, rational authority is most popular. That is not to say, however, that traces
of traditional and charismatic authority are missing. They may even be observed or noticed in systems
renowned for rational-legal authority. But note that their influence is declining in modern governance of
people.
Pound focused on various interests in the society, that is, individual interests, public interests, and social
interests. To him, the law played a mediatory role in resolving the conflicts which are bound to emanate
from such array of interests.
However, resolving such conflicts is easier said than done, and minority rights are usually sacrificed in
the process.
Finally, we may conclude by stating that the contribution of the duo can be taken as a recipe for

42
resolving conflicts within the society. This is more so in modern democracies where dissent or alternative
views are encouraged. The task, therefore, is for persons entrusted with rulership to be able to take
benefit of their theories for resolving or harmonizing conflicting interests.

UTILITARIAN SCHOOL OF LAW

1.0 INTRODUCTION
Utilitarianism is a positivistic reaction against what has been perceived as the excesses of the natural law
school approach to law. In its disgust with the unscientific methodology and metaphysical orientation of
natural law, the utilitarian theory seeks ways of meeting the welfare needs of the people without allusion
or reference to the higher authority of natural law or even God. The major proponents are Jeremy
Bentham (1748-1832) and John Stuart Mill (1806-1873). Jeremy Bentham – a jurist, economist and
social reformer – headed the group of ‘Philosophical Radicals.’ The group canvassed the principle of
utility. Utility has to do with the usefulness or value of a thing, a product, a policy, etc. The utilitarian
school of jurisprudence propounds that utility is the standard for measuring the propriety of our conduct
or approach. Similarly, the significance or usefulness of a law is determined by its capacity to meet the
needs and aspirations of the people.
According to Bentham, law has utility which satisfies the greatest happiness of the greatest number. This
is another way of saying that a law would be taken as acceptable or achieving its welfarist purpose where
it caters for the interest of most of the people in the society.
In this Unit, we shall be looking exclusively at Bentham’s contribution to utilitarianism by examining
such issues as the utilitarian principle, quality of legislation, measuring happiness, etc.

3.1 UTILITARIAN PRINCIPLE

Jeremy Bentham subscribed to the command or the imperative theory of law which was popularized by
John Austin. Such theory sees law as the will of the sovereign who is superior to the addressees of the
law, which law is backed by sanctions. Thus, he defined law as:
An assemblage of signs declarative of a volition conceived or adopted by the Sovereign in a State,
concerning the conduct to be observed in a certain case by a certain person or class of persons, who in
the case in question are or are supposed to be subject to his power.
And he defined a sovereign as:
Any person or assemblage of persons to whose will a whole political community are (no matter on what
account) supposed to be in a disposition to pay obedience and that in preference to the will of any other
person.
As the foregoing would have revealed, Jeremy Bentham was a positivist who, in the tradition of other
fellow travellers in the positivist train, disdained natural law because its metaphysical claim was
unverifiable. Thus, he derided natural law as ‘nothing but a phrase’ and natural rights as ‘nonsense upon
stilts.’ But that is not to say that he was not interested in the welfare of human beings. If that was the
case, he would not be associated with the greatest happiness of the greatest number. Note that all he
sought to do was to demonstrate that anything that is beyond human observation or experimentation was
not worthwhile.
He introduced his principle of utility by alluding to the senses of pleasure and pain. According to him, the
most important quality of human beings was their sentience, that is, their ability to feel pleasure and pain.
He believed the two (that is, pleasure and pain), to be, self-evidently, masters of mankind. In his
Introduction to the Principles of Morals and Legislation (1789, 1832), he adumbrated as follows:
Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for
them alone to point out what we ought to do, as well as determine what we shall do. On

43
the one hand, the standard of right and wrong, on the other the chain of causes and effects are fastened to
their throne. They govern us in all we do, in all we say, in all we think.
What he is saying here is that the destiny of man is held hostage by pleasure and pain. It is either he is in
pleasurable condition or he is suffering from some pain.
In other words, man’s life is conditioned by his response to the stimuli of pleasure and pain. Man would
do those things from which his pleasure derives while at the same time refraining from activities that are
a source of his pain.
Pleasure of the senses includes riches, power, friendship, good reputation and good knowledge.
Conversely, pain of the senses includes privation, enmity, bad reputation, malevolence, and fear.
Bentham asserted that the pleasure derivable and the pain emanating from one’s act were the influential
factors in one’s decision as to whether to do it or to omit doing same.
To anchor this theory is the principle of utility or the utilitarian principle. Utility is the quality of an
object or action which imbues it with the capacity to produce some good, satisfaction, happiness or
benefit on the one hand, and to prevent or reduce pain, evil or mischief on the other. In other words,
utility has to do with the usefulness of an act or item to an individual. A product is said to lack utility if it
is not useful or where its uselessness is more than its usefulness. The principle of utility is the barometer
for measuring or evaluating all action. Bentham explains:
By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure,
good or happiness (all this in the present case comes to the same thing) or (what comes again to the same
thing) to prevent the happening of mischief, pain, evil or unhappiness to the party whose interest is
considered: if that party be the community in general, then the happiness of the community; if a
particular individual, then the happiness of that individual.
As the principle can be used for an individual action so can it be utilized to measure or gauge the
goodness or badness of the law of a State. Therefore, any law that benefits most people or most people in
a class of the society has utilitarian value and should be promoted. Where, however, such law imposes
burdens on most people, then it fails the test of utility and should be rejected. So, according to Bentham, a
utilitarian law is that good law that satisfies the greatest happiness of the greatest number.

QUALITY OF LEGISLATION
The principle is a roadmap to legislators in their duty of making laws to regulate the conduct of the
people, and a guide in the relationship between the people and the government. In law- making, Bentham
distinguished between the science of legislation and the art of legislation. Scienceoflegislationistheabilityofthelegislature to
know the ‘good’; the ability to predict the measures that could maximize pleasure or
happiness, and/or minimize pain or misery. This would, for example, entail that the National Assembly
should be able to project and evaluate beforehand the effect of enacting an Act to increase the Allocation
Formula or to pass the Freedom of Information (FOI) bill.
On the other hand, the art of legislation is the ability of legislators to promulgate laws that would have the
effect of promoting the good and reducing the bad. In other words, it means discovering the means of
realizing the ‘good.’ Again, this would imply the National Assembly actually enacting or amending an
existing law that would meet the yearnings and aspirations of the greatest number. Note that S. 4(2) & (3)
of the Constitution of the Federal Republic of Nigeria (CFRN)
1999empowerstheNationalAssemblytomakelawsforthepeace,orderand good government of the Federation or any part thereof.
It is, therefore, the conclusion of Bentham that the quality of legislation is proportionate to the ability of
legislators to acquaint themselves with the intricacies of the science of legislation and the art of
legislation, and to effectively put them to practice. To him, a legislation that is programmed to generate
happiness for the community must:

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Provide subsistence if not abundance;
Provide security. Bentham stated that this was the most important goal of the legislature. Security
involves protecting man’s honour, status, and property. However, because liberty was not a goal of the
legislature, any conflict between the latter and security would have to be resolved in favour of security.
You may draw a comparator from Nigeria under the dictatorship of the military. Upon its take-over of the
reins of government, the military usually suspends or modifies parts of the CFRN dealing with matters
including liberty and human rights for the purpose of ‘national security.’ It is under this setting that it
promulgated several privative decrees such as the infamous Decree 2, which permitted the military to
detain individuals without trial; and
Reduce inequalities. Note that he is credited with having said that perfect equality was a mirage.

MEASURING HAPPINESS: THE FELICIFIC CALCULUS

But, because the utilitarian theory parades itself as scientific, how do we scientifically find out what law
satisfies the greatest happiness of the greatest number? In response, Bentham stated that it was possible
to accurately predict the consequences of an act and to calculate the extent to which it would promote
pleasure and prevent pain. More specifically, he asserted that the intensity, devotion, purity and fecundity
of the sensations of pleasure and pain are measurable. For this purpose, he developed a ‘felicific or
hedonistic calculus.’
With this instrument, we would calculate the social totals of the amount of pleasure and pain which an
action possesses.

Thereafter, there would be a quantitative summation of the happiness each person derives from the
activity in question. He said that the instrument would assist us in calculating the social totals of the
amount of pleasure and pain embedded in an action. Ultimately, the use of this device would guide the
legislature in enacting only laws that are capable of guaranteeing the greatest happiness of the greatest
number.

Bentham contended that it was possible to evaluate the pleasure and pain derivable from a particular
course of conduct and arrive at a comparative comparison of both. Prof. Curzon explains the process as
follows: an account is taken of each ‘distinguishable pleasure’ produced in a person by a given act, and
of each pain similarly produced. The appropriate evaluation would consider the intensity of the pleasure,
its duration, certainty and extent. Pleasure and pain would be added up in order to arrive at the good or
bad tendency of an act.

Individual happiness would thereafter be summed into a ‘social total,’ each component being weighed
equally. Finally, the resulting social total would be identified with ‘the common good’ of society, which is
the greatest happiness of the greatest number.
Note that Jeremy Bentham’s theory, more specifically, his methodology of measurement, is predicated
upon three assumptions:
(a) That there is accretion to the happiness of an individual where the addition made to the sum total of
his pleasures is greater than the addition to the sum total of his pains;
(b) That the general societal interest is made up of (the sum of the parts of) the interest of the people of
that society; and
(c) That the collective happiness of the society is increased where the total of all pleasures of the
individual members of the society is increased to a greater extent than their pains.

CRIME AND PUNISHMENT

Jeremy Bentham dwelt quite extensively on criminal law and punishment. A summary of his discourse is
given below:

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 The mischief of an act (or the pain produced therefrom) must be taken into consideration to the effect that
the law must discourage acts which produce pain or evil.
Criminal law must not be based upon the acceptance of the division of offences into mala in se (acts
which are wrong in themselves) and mala prohibita(actswhicharewrongbecausethelaw prohibits them). An
act cannot be wrong in itself; its wrongness becomes manifest only in consideration of its
consequences. Where, therefore, an act does not produce any harm, it should not be the subject of
prohibition let alone sanctions.
Upon the basis of the principle of utility, to punish is to inflict suffering on an offender, a step that
increases the sum of evil. But the overall object of the criminal law ought to be an increase in the
community’s total happiness. Therefore, if, in the name of the community, punishment is to be
administered, it must demonstrate that the resulting pain will help to prevent greater general pain. Thus,
punishment has utility if and only if its eventual outcome results in greater happiness for the whole
community. It is in this connection that retribution is derided as being of no value.
Where compensation can be ordered to be paid, the imprisonment or punishment of the offender is
unnecessary.
Punishment ought to be severe enough to outweigh any profit likely to be gained by the offender. A
practical example is the EFCC Act 2004. It, inter alia, punishes money laundering and authorizes
theseizure, freezing, confiscation and forfeiture of assets derived from corruption and other
financial crimes. In order to properly enforce the suggestion of Bentham, offenders must not only be
imprisoned; assets they derived from their criminal endeavours must be confiscated or forfeited so that the
economic motive of crime would be erased. In other words, the confiscation or forfeiture must restore the
offenders to the status quo ante bellum.

CRITICISMS OF BENTHAM
(a) Impracticability of Utilitarianism
Philosophers, jurists, psychologists and political scientists have condemned Bentham’s philosophy in
unison. One of the reasons for such condemnation is the fact that pleasure and pain are highly subjective
phenomena. Secondly, the consequences of an action may not immediately result in pleasure or pain. So,
in this case, Bentham’s theory would have no base to rest. Moreover, it is obvious that the plank of
utilitarian theory rests on the foundation that it is possible to predict effects or consequences of the
particular action or law so as to allow antecedent evaluation of whether or not the action or law would
achieve or yield maximum pleasure or minimum pain. However, human nature reveals that it is
impossible to clearly see the future well ahead of time today. Therefore, such prior evaluation is
unrealistic.
(b) Imperfections of the Felicific Calculus
His measuring device is incapable of measuring the sum total of pleasures and pains because the two-
some are too subjective to be so measured. The quantitative calculability of happiness or pain has been
found to be empirically indefensible. Therefore, the principle of utility may, afterall, not be objective and
not better than moral principles canvassed by Natural Law thinkers. Recall the derogatory remarks
Bentham had made against natural law and natural rights because they are incapable of proof. It is trite
that inability of scientific proof is the major downside of the natural law school. But for a positivist like
Bentham, who propounded utilitarianism as an alternative to the inadequacies of natural law, to resort to
a method of proof which is, itself, in need of proof is, to say the least, a disservice to the positivist
movement.

His utilitarian principle has even been interpreted as a little more than a restatement of the natural law
doctrine. According to Schumpeter in his Scholastic Doctors and Natural Law P
hilosophers(1954),utilitarianismis ‘the shallowest of all conceivable philosophies of life.’ He
contends, inter alia,thatutilitarianismisaphilosophyoflifeestablishingaschemeof‘ultimate

46
values’ – pleasure, happiness, the greatest happiness of the greatest number. He concluded that the
theory has about it an aura of the ‘universal and immutable’ values associated with classical natural law.
(c) Factors Determining Desires Jeremy Bentham did not mince words in his description of the science of
legislation and the art of legislation about what legislators should do to enact a good law or a law that
satisfies the greatest happiness of the greatest number. It has been described as a consumer model of law
in that the theory presupposes that the legislator would go shopping for the best law to enact by holding
consultations with stakeholders, evaluating the pros and cons before coming to the conclusion of
adopting one form of law or another. No matter the nobility of this exercise, it must be noted that it is
highly unrealistic.
It is true that legislators may receive several memoranda from interest groups on the utility of a
particular bill. They may also consider a wide-range of options including efficiency, convenience, their
selfish interests, etc. But it so happens that in the great majority of cases they are interested neither in the
science nor in the art of legislation. We are living witnesses to how lobbyists steal the show especially in
their attempts to make legislators pass a law favourable to their businesses. This is believed to have
happened in the petroleum industry bill, and in the regulation of GSM operators.
Also, it is the case in many developing States that legislators hardly think of national interests or the
interests of their compatriots. In Nigeria, recall that the FOI bill has had a chequered history in the hands
of the National Assembly. Its passage was delayed not necessarily because the legislators wanted to
exercise caution in the passage of a bill that might be invasive of people’s privacy but because they were
scared stiff that the law could be a potent tool in the hands of Nigerians against public officials who have
routinized the plunder of national wealth. Notice also that despite large scale poverty in the land and the
freezing of the FOI bill, the law makers (with the collusion or assistance of the Revenue Mobilisation
Allocation and Fiscal Commission) overpay themselves handsomely from the national treasury. Recall
also that the Governor of the CBN, Sanusi Lamido, has revealed that the National Assembly consumes
25% of the National budget.
(d) Silence on Justice
Generally, utilitarianism is a moral philosophy which seeks to provide a theory of justice. However,
Bentham reduced utility to issues of happiness, pleasure and satisfaction of sensual desire without paying
any attention to the imperative of justice. Thus, although he focused much on criminal law, he did not
even bother to discuss the principles of justice which ought to determine the rightness or wrongness of
punishment. It is believed that a discussion of penological theories (as he did) without reference to the
justice underlying them is foundationally defective. He dismissed the notion of justice as a fantasy which
was created for the purpose of convenience. (e) Utilitarianism: Majority versus Minority
It is easy in our socio-economic and political discourse to render analyses by reference to the majority.
For example, democracy is majority rule. In the same vein, the utilitarian theory propounds the greatest
happiness of the greatest number. This is another way of saying that an action or law is worthwhile if it
satisfies the interests of the majority. But what then happens to the minority? The majoritarian theory is a
theory that satisfies the majority and dissatisfies the minority. In other words, minority interests can be
sacrificed on the altar of majority interests. The utilitarian theory is undermined by its promotion of the
interest of the majority over that of the minority.

CONCLUSION
The principle of utility as propounded by Bentham is one which seeks to guarantee the welfare of the
greatest happiness of the greatest number. Its remit is to use law as an instrument for realizing the
common good. As a principle based on majoritarian rule, it is or ought to be

47
relevant in contemporary times where democracy appears to have been widely accepted as the basic
minimum for any modern society desirous of development and progress.
However, most of the routes that Bentham charted for the materialization of the principle are highly
contentious and subjective. For example, the felicific calculus for measuring pleasure and pain has no
foundation in scientific endeavour. It is, at best, a mental construct.
Well, by and large, it cannot be taken away from Bentham that his principle of utility is one which
appears to have succeeded in jolting complacent States and governments to the need to make some forms
of welfarism or even good governance the focal point of governance.

SUMMARY
In our consideration of the utilitarian principle of Bentham, we looked at the quality of legislation,
measurement of happiness, crime and punishment, and thecriticisms of the principle.
Utility refers to value derivable from an action, conduct, policy, law, etc.
Bentham believed that man is the servant of pleasure and pain. Whatever he does reflects his preference
for pleasure or aversion to pain. In enacting legislation, legislators should be mindful of the science of
legislation and the art of legislation so that the product of these endeavours would be able to cater for the
greatest happiness of the greatest number. Because a good law should seek the greatest happiness of the
greatest number, that is, by increasing pleasure and reducing pain, imprisoning an offender is justified
only where there is no other way of punishing him such as the payment of fine, confiscation or forfeiture.
The felicific calculus is a device for measuring the quantum of pleasure and pain of the individual
members of the society and, ultimately, of the society as whole.
However, the principle has generally been castigated for being impracticable. More specifically, his
felicific calculus is upbraided as unrealistic. Similarly, Bentham has been faulted for his failure to
appreciate the fact that desires, pleasures and pains vary from one person to another. Moreover,
Bentham is cited for contempt for justice. He failed to give a pride of place to his principle. Lastly, his
theory is criticised for its concern about majority to the detriment of the minority.

UTILITARIANISM (2)
1.0 INTRODUCTION
Bentham’s utility principle has been severely criticized. In order to ameliorate such severity, Mill
attempted to render a revision by rejecting or reforming the approaches of Bentham.
This Unit will consider the way and manner he set out to do this by considering his position on how the
interplay of pleasure and pain could engender the greatest happiness of the greatest number. Also, we
shall look at his appreciation of justice which Bentham ignored or treated with contempt.
Thereafter, the Unit would consider individual utilitarianism vis-à-vis social utilitarianism with a view to
locating areas of their common grounds, and areas of divergence. It will subsequently attempt
harmonization of the two subtheories.
3.1 J.S. MILL’S RESTATEMENT OF UTILITARIANISM
John Stuart Mill was a logician, economist and philosopher. He is popular for having amended or
reformed the extremism or inadequacies of Bentham’s theory of utilitarianism. Professor Curzon
observes that against the background of the severe deficiency of the Bentham’s utilitarianism, Mill
erected his edifice of restatement, restating and qualifying Bentham’s utilitarianism.
Generally, Mill disclaimed Bentham’s quantitatively utilitarian approach with some poetic lines as
follows:
It is better to be a human being dissatisfied than a pig satisfied;
Better to be a Socrates dissatisfied than a fool satisfied.

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And if the fool or the pig is of a different opinion,
It is because they only know their own side of the question; The
other party to the comparison knows both sides.
Mill refined Bentham’s theory through his qualitative (as against quantitative) approach. We shall
summarize the fundamentals of such refinement as follows:
(a) Source of Happiness/Satisfaction
Bentham argued for the maximization of happiness and the minimization of misery in physical, sensual
pleasure. To him, there were other sources of happiness which were non-physical, and which provided as
much satisfaction as pleasures of the sense. He stated that the measurement of pleasure or pain can be
made not only quantitatively (as Bentham did) but also qualitatively.
He asserted that quality is as much important, if not more important, than the quantity, and that small
amounts of pleasures may be more satisfying than large amounts of other, less refined, pleasures.
Bentham considered only physical sensation of pleasure and pain (sentience). Mill believed that
intelligence, rather them sentience, was a more important characteristic of human beings.
(b) Mill rejected the use of utilitarianism for selfish, hedonistic ends. In its place, he advocated the
altruistic approach whereby people will, in their pursuit of happiness, be encouraged to secure the
happiness of others because, in so doing, they secure their own happiness. In other words, even when you
are primarily aiming at your own interest, you should not ignore the interest or happiness of others. By
this Mill meant that the search for happiness should be principally predicated upon a consideration of the
welfare or interests of others, the relegation of self and the promotion of collective happiness.
(c) Recall that we noted the fact that justice was never the preoccupation of Bentham because he
dismissed it as a fantasy created for the sake of convenience. But Mill thought otherwise. To him, justice
occupied a central position in balancing social considerations of utility and individual considerations of
liberty and equality. He believed that such approach would increase societal justice.

3.2 INDIVIDUAL UTILITARIANISM AND SOCIAL UTILITARIANISM

3.2.1 Individual Utilitarianism
Individual utilitarianism is utilitarianism from the perspective of the individual. It is based on the will of
the individual or the individual’s selfish interest or ambition. Immanuel Kant (1774-1804) laid the
foundation for the theory of individual utilitarianism. Herbert Spencer (1820 – 1907), a proponent of
laissez faire (free enterprise), adumbrated this arm of utilitarianism. In his discomfiture with the
hindering power of social or societal norms, he emphasised selfactualisation of the individual. His
views on free enterprise coincide with social Darwinism – the theory of the survival of the fittest.
Note that most, if not all, legal systems permit individuals of full legal capacity to exercise their will as it
suits them. This manifests in several legal endeavours such as the law of contract, wills, marriage, etc.
However, in deference to social utilitarianism, there are, for instance, certain contracts that would not be
recognized under the law by reason of their being outright illegal or contra bonos
mores.Suchwouldincludethecontracttorobabankortobombapartofthe country.
Mill, another exponent of individual utilitarianism, says that over his mind and body, man is sovereign.
To him, human beings should act out their passions or do the bidding of their hearts provided they do not
interfere with the happiness or rights of others. In other words, there should ordinarily be nothing
inhibiting man from what he is minded to do save for the proviso that he must realise that his capacity or
right to do so stops where the right or interest of his neighbor begins. Take, for instance, the CFRN
1999. Therein, S. 41 guarantees the freedom of

49
 movement of the individual. The logical extension of my freedom of movement is my right to swing my
hand around me. It is, however, limited by my obligation not to commit assault or battery upon my
neighbour. The essence of individual utilitarianism is that since the individual knows best what he wants,
he and he alone should generally be the determinant of his action or conduct.
Recall that, in the context of the enforcement of morality, Mill designed the harm principle.Itis
totheeffectthattheonlypurposeforwhichpowercanrightfulybe exercised over any member of
a civilized community against his will is to prevent harm to others. To him, the individual should have
liberty, or freedom of action, in relation to activities that are harmless to others. However, the need to do
justice or fairness to others grounds the necessity for restricting the scope of individual action.
Note also that in 1959, the UK Wolfenden Committee Report recommended the legalization of
homosexuality between consenting adults in so far as the act was done privately. The arguments of the
Committee harmonized with that of Mill.
Essentially, the argument was that since the act was done in camera, public decency was neither
outraged nor harmed.
Note again that proponents of individual utilitarianism will uphold suicide, abortion, dissent,
homosexuality, same-sex marriage, euthanasia, etc because each of these conducts primarily or
fundamentally, if not wholly, harms the individual concerned. They would believe, therefore, that any
legislation inhibiting individuals from doing any of these, or punishing them for doing so, indicates
society’s or government’s undue interference or unjustified paternalism in running the affairs of persons
of full capacity.
3.2.2 Social Utilitarianism
Social utilitarianism is the flip side of individual utilitarianism. Though recognizing the individual
passion to be a master of his destiny, it asserts that because such individual is a social animal, living in
the community of his neighbours having various passions and interests, his capacity for freedom of action
is necessarily limited. In other words, social utilitarians insist that because man is not an island, his
selfish interest must, in deserving cases, be overshadowed by the general interest.
Bentham was a complex personality. He was ordinarily an individual utilitarian but, with his reference to
welfare and, most important, community happiness, he was a social utilitarian. This was evident by his
popular mantra, the greatest happiness of the greatest number. He was
concernedwiththeactorthelawthatcould meet the needs of as many people as possible in the society.
In advancing such societal interest, Bentham implied that the interest of an individual, a few individuals,
or a minority, was worth sacrificing on the altar of the happiness of the greatest number of people.
In this connection, refer to S.14 of the CFRN 1999 which declares that the ‘security and welfare of the
people shall be the primary purpose of government.’
In other words, the government exists to minister to the needs of the people. Note that it does not adopt the
Benthamite phrase because of its (majoritarian) limitation. In simply referring to the ‘people’ the section
evades the controversy of why the grundnorm of the country should be concerned merely with the interest
of the majority or the greatest happiness of the greatest number. Thus, the
CFRNexiststocaterfortheinterestsofall.ButnoteagainthatChapterIVof theCFRNdelimitsthegeneralityofS.14insofarasitpermitsthepromotionofpublic
interest over private interests. For example, S. 45 allows derogation from fundamental human rights in the
interest of defence, public safety, public order, public morality or public health; or for purposes of
protecting the rights of other persons. It is an attempt to import policy into law making.
Social utilitarians would say that a woman cannot commit abortion because the State needs hands to
work in its factories and industries. However, the individual utilitarian will respond by

50
arguing that the society lacks the capacity to interfere with what the woman does with her body, that
making or expecting the woman to breed children in that manner veritably converts her into a somewhat
childbearing factory without caring a hoot about her welfare. It would appear that this controversy, ably
sharpened by pro-lifers (social utilitarians) and pro-choicers (individual utilitarians) climaxed in the
famous case of Roe v Wade21 where the court tried to chart the middle course with the aid of the three
trimesters.
Social utilitarians would posit that it is wrong to authorize euthanasia (mercy killing) for the benefit of a
patient who is terminally ill because such form of killing may amount to cold- blooded murder, the
murder of a defenceless person. But individual utilitarians would retort that such should not be the
concern of the State especially when the patient’s condition has been medically certified to be
irredeemable, and the patient or the family authorizes a doctor to carry it out. The social utilitarians may
respond that even a terminally ill patient may be healed afterall through some forms of miracles as
usually happens in Pentecostal churches. Note that some States like Australia have legalized euthanasia.
In the same vein, social utilitarians will rail against suicide because it cheapens the sanctity of human
life. But the individual utilitarian would see nothing wrong in it since it is the height of the exercise of
will. Note, however, that in many legal systems, it is obvious that suicide, when successful, cannot be the
basis of prosecution except where other persons are found to be complicit in the act. But, where
unsuccessful, the actor is liable to prosecution for attempted suicide.
Social utilitarians would maintain that homosexuality, or same-sex marriage must be prohibited because
it goes against the established institution of marriage. It would contend that approving of such union has
the tendency to corrupt public morals. In response, individual utilitarians would say that in so far as such
alliance is between consenting adults in private, the law has no business at all to interfere. Recall Mill’s
harm principle and the 1959 Wolfenden Report on homosexuality.
Social utilitarianism is alive and well in our socio-cultural milieu. For example, despite modernization,
the extended family system still trumps the nuclear family system. And this happens notwithstanding the
(academic) status of the husband and wife. It is only in a few cases where a couple may succeed in
staving off the intrusion of the extended family members into their nuclear family. But, even then, they
usually risk social ostracism. In other words, communalism still prevails over individualism. For
instance, wealthy members of the society are expected to donate part of their wealth towards worthy
causes in the same way as tax-paying corporations are expected to pay due regard to social
responsibility, that is, by providing goods and services (that the government is legally bound to provide)
to their host communities.
Recall that Nelsen Mandela was incarcerated by apartheid South African government for twenty seven
years. It is highly probable that he would have breathed the air of freedom much earlier than he
eventually did. The government had offered to free him several times on the condition of his abandoning
the cause of the generality of the black race in South Africa. In other words, the government tried selling
him the idea of the individual utilitarian that it was in his personal, narrow interest to be a free man and
rejoin his family members. But, pursuant to his social utilitarian convictions, Mandela blatantly refused
the offer and preferred to remain in detention. To him, his freedom was meaningless without the total
liberation of the rest of black men and women. He endured and won at the end of the day. The loss of
individual utilitarians was the gain of social utilitarians.
Utilitarianism considers how law can be useful or made to serve the interest of the people. Social
utilitarians and individual utilitarians have made their contributions. But the two perspectives are not
diametrically opposed to each other; one complements the other. Most proponents of one recognize
thenecessity of the other. Both sides of the coin of utilitarianism can be harmonized by first recognizing
the individuality of all, the competence of everyone to do

51
their own thing their own way without external interference. However, such freedom will have to give way
to greater societal interest in deserving cases. It is unfortunate that the freedom of the minority is
sacrificed for the majority. It may be unjust or unfair. But that may be considered the social cost of
societal stability.

MARXIST THEORY OF LAW

1.0 INTRODUCTION
In a legal discipline like jurisprudence, Marxism is unique because it is the only school of thought that has
openly and directly denigrated law, which it considers to be a tool in the hands of the capital-owning class
of the society for the oppression of the labour-selling section thereof, the proletariat. It has even predicted
that some day in the future law would become unnecessary and cast out from the society forever.
Marxism, named after its main proponent, Karl Marx (1818-1883), is the intellectual wing of the political
ideology called socialism. Recall that socialism stands against almost everything that capitalism stands
for. Marxism is uncomfortable with the oppression by the bourgeoisie of the proletariat. It employs
several sub-themes to drive home its point about the irreconcilable differences between capital-owners
and labour-sellers.
In this one-unit Module, themes or sub-themes specifically considered include dialectical materialism,
laws of economic production, and historical materialism, the relationships between the substructure and
the superstructure, law andcapitalism, law and the State, amongst others.

3.1 SCOPE OF MARXISM

Marxism – a term derived from its main proponent, Karl Marx, is a comprehensive and multi-
disciplinary study covering disciplines such as sociology, politics, history, economics, etc. Note that there
are, however, fewer writings about the Marxist school of thought because it relegated law to the
background, or because it failed to give pride of place to law in its analysis of social phenomena. In
addition to Karl Marx, other proponents included Friedrich Engels (1820-1895) and Vladimir Lenin
(1870-1924). Karl Marx, a son of a lawyer, was a student of jurisprudence. He got his training from the
University of Bonn and the University of Berlin where he was overwhelmingly influenced by the
philosophy of Hegel (1770-1831). Marx was of the view that jurisprudence is much more than static
analysis and argued that the study of jurisprudence must necessarily include a study of the nature of law
in a society which was in a flux, ever- changing.

Marxist definition of law is offered by Vyshinsky as follows:

Law is the totality of rules of conduct which express the will of the ruling class and are laid down in a
legislative manner, along with the rules and practices of communal life which are sanctioned by the
power of the State.
The application of these rules is backed by the coercive power of the State in order to secure, reinforce,
and develop the social relationships and conditions which are agreeable to the interests of the ruling
class.
Having come this far in the study of key topics in jurisprudence, we can note that this definition of law is
consistent with that of Austin, Kelsen, etc, save for the reference to ruling class.
Marx believed that study is a means to an end, the end of revolutionary societal transformation.
According to him, “up till now, philosophers have merely interpreted the world, the point, however, is to
change it.” He was passionate about effecting revolutionary societal change by overthrowing the
existing, dominant capitalist order. Such revolution would be properly and effectively realized with the
well-grounded understanding of social phenomena such as economics, politics and law. In other words,
such revolution was realizable with the adoption and utilization of knowledge obtained from multi-
disciplinary approach to study or learning.

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His world outlook comprises the doctrines of dialectical materialism, laws of economic
production,andhistoricalmaterialism.
(a) Dialectical Materialism
Dialectical materialism is a system of thought predicated upon a materialistic conception of the universe
and the examination of the interdependence and the contradictions inherent within all phenomena. He
believed that the phenomena of nature are dialectical. Dialectics (dialego – to debate, discourse) is
opposed to metaphysical or transcendental speculation. And this obviously means that it stands in
opposition to the doctrine of natural law. Its essential characteristics include:
(i) Nature is a connected and integral whole. The idea is to the effect that as no man is an island, nothing
is an island of its own. Thus, law is connected with or depends on other phenomena. What this means is
that law would have to be studied not in itself but against the background of other disciplines.
(ii) Nature is in a state of constant change. It is often said that something is as constant as the Northern
star to denote stability or predictability. Marx was of the view that the only thing permanent or constant
in nature was change. So, in the study of jurisprudence we cannot ignore or gloss over the reality of this
change in the character of law. Put differently, the changing nature of law must beget a malleable
approach to jurisprudence.
(iii) Development in all phenomena manifests in imperceptible quantitative changes which
translates/transforms to fundamental, qualitative changes. This is evident by the appearance,
disappearance and re-appearance of old doctrines and the emergence of new ones.
(iv) Internal contradictions are inherent in all phenomena and “struggles” between opposites, the old and
the new, are inevitable.
Thus, to every positive is a negative, and to every thesis is an antithesis. The effect of all this is that as you
always have the other side (or the flip side of the coin), there will always be alternative, opposing views
even within the same family of a particular theory.
Therefore, it would not be strange in the family of positivists for Prof. Hart to reject or to severely
criticise John Austin’s command theory of law. Similarly, it would be normal for legal philosophers to
have varied and contentious views on fundamental concepts in jurisprudence.
According to Marx, the interpretation of those phenomena is materialistic because matter is the basis of
existence. Materialism contrasts with philosophical idealism; it rejects metaphysics or transcendentalism.
To Marx, the world is matter or material. Matter is primary, mind is secondary. Mind isa reflection of
matter. The mind derives from matter, not the other way round. The two are inseparable. The world and
its phenomena are entirely knowable through experiments, observation, etc. Knowledge obtained can lead
us to the objective truth. This process of knowledge acquisition brooks of no eternal principles that
natural law philosophers are wont to make us believe.
(b) Laws of Economic Productions
Marx posited that production in a capitalist system is based on a system whereby the bourgeoisie exploit
the proletariat who rely on the sale of their labour for subsistence existence. The former owns or
monopolizes ownership of the factors of production (such as capital, land, industries, factories, etc.) and
all the latter has to do to carry on with their miserable existence is to play second fiddle. This they do by
working for the oppressors or exploiters and in the process sweating it out to produce the goods and
services that the employers of labour will sell for money.
He argued that inexorable economic laws determine and regulate production of goods and services.
Those who own the instruments of production (the capitalist class) derive surplus value from the labour
of those who have nothing but their labour power to sell (the proletariat). From the cheap labour offered
by the proletariat, the capitalist class amass excess products and profits. The greed or hunger or thirst
for profits and more profits propels the capitalists to

53
exploit the proletariat.
In no time, such exploitation would trigger chain reaction of economic crises and the discontent and
disaffection of workers. At this stage, the society would be polarized along the lines of them and us, the
haves and the havenots.
Thereafter, workers will mobilize to confront the capitalist class, and to “expropriate the expropriators.”
Ultimately, the capitalist or the bourgeois society shall disappear. Workers’ success would be a function
of a combination of factors including their consciousness, and the inherent contradiction in the unjust
order of capitalist exploitation. Marx would usually say that the capitalist class produces its own grave-
diggers. What he meant by this was that the nature of greed and excesses which was inborn in the
capitalist class was always sure to produce a set of circumstances thatwould enhance the challenge and
the overthrow of the system as a whole.
(c) Historical Materialism
Marx contended that the history of society is the history of class struggle.
In other words, there has always been and there will always be struggle on the basis of class. Your class
would determine the nature of your contribution to the struggle. Recall the radical or progressive slogan
of students from tertiary institutions aluta continua victoria ascerta. He stated that the mode of
production (that is, the understanding of whether you are an employer or a capitalist or an employee,
labourer, proletariat) determines the general process of socio- economic, political and intellectual life.
As he would say, ‘it is not the consciousness of men that determines their existence, but their social
existence that determines their consciousnesses.’ What this means is that your response to your
environment is not conditioned by your own nature as a person or as a human being but by your own
status, standing or placement in the social rung of the societal ladder. The nature of capitalism generates
or makes conflict inevitable. And revolution will occur only when the contradictions created by capitalist
mode of production cannot be solved or resolved.

SUB-THEMES IN MARXISM
Marx also dwelt on issues or sub-themes relevant to the three themes we have considered already. We
shall look at them below:
(a) Base and Superstructure
In realizing that economic foundation is the real basis of any given social order, he contrasted the base or
substructure with the superstructure. The base is the foundation of the social consciousness of human
beings in the society.

You may call the base your economic strength, your financial power, your wealth. It determines the
superstructure, that is, every other thing that has to be supported by the base. Upon the substructural
foundation, society builds or erects its legal, political, social and moral superstructure. Superstructure
includes ideas, ideology, theories, philosophy, beliefs, etc. As time and chance happen to everything
(Eccl. 9:11), material conditions of life happen to the superstructural paraphernalia of all. You may need
to look around you to see how the substructure conditions the superstructure. For example, the base
determines the superstructures of your social status, thinking, the kind of friends you keep, the make of
cars you ride, where you live, the kind of schools your children attend, etc. In fact, the base is the be- all-
and-end-all because, in its absence, the superstructure would be in a sorry state.
(b) Law and Capitalism
Marx noted that jurisprudential theories, law, rules and regulations are not ac happenstance; they did not
emerge from the blues or by accident. He said that they developed or were created in response to the
needs of the ruling class.
Similarly, he had stated that religion, ethics, art and jurisprudence perform functions which help

54
to maintain, sustain and stabilize the capitalist order for the good and security of the capitalists. He
rejected the assertion that they reflect or mirror the ‘eternal categories’ and added that they eventually
change with the change in the perceived needs of the ruling class.
Recall that Marx attested to the inevitability of exploitation and struggle in a capitalist society. In relation
to law, he stated that law reflects the class struggle between the ruling class and the proletariat. Because
power equation favours the dominance of the interests of the ruling class, the law comes in handy as an
instrument for perpetrating such dominance. Laws, statutes, rules and regulations, and judicial
interpretation thereon are packaged together to enhance capitalist control of the proletariat. They are
legal apparati employed and deployed by the ruling class to advance their economic and political statusquo.
Marx maintained that his argument remains valid no matter how beneficial and disinterested the law may
be. According to him, a neutral, disinterestedjurisprudence is a fiction and concerns for ‘natural rights’
or the ‘rights of property,’ is a mask for intellectual endeavour geared towards maintaining a regime of
economic exploitation. He stressed further that in as much as law
and jurisprudence satisfy or fulfil the requirement of the dominant economic class, they legitimize
existing social structure to the detriment of the proletariat.
(c) Law and State
Marx asserted that the State is a superstructure erected upon an economic basis. In other words, the base
determines the State you have, or the nature of the State. In the beginning there was no State. State came
into existence with the emergence of classes in the society. T he state is merely ‘the executive committee
of the bourgeoisie,’ ruling on its behalf and using coercive legal apparati against non-conformists.
According to Engels, the State is “the form in which the individuals of a ruling class assert their common
interests, and in which the whole civil society of an epoch is epitomized”.
Jurisprudence or law assists the State with the ideology which, under the pretext of an objective analysis
of the role of the State, justifies or rationalizes its dominant, exploitative role and objectives.
All phenomena, including the State, are subject to change. The State is, afterall, not external or
sacrosanct. But note S. 2 of the CFRN 1999 on the indivisibility and indissolubility of Nigeria. Marxists
predict that the State will wither away when a victorious revolution replaces “the government of persons by
the administration of things.” In the disappearance of classes following a successful revolution, law will
fall into disuse. Exploitation and poverty – the foundational causes of crime – will vanish in a classless
society.
The State will disappear piecemeal. In the transitional period from capitalism to socialism, new forms of
law and jurisprudence will be needed. Proletarian law would rule and reign until the proletariat finally
overthrow the capitalist.
Subsequently, law will be unnecessary.
(d) Some Diversions
Marxists believe it to be a waste of time when workers believe piecemeal improvement in welfare package
can take them anywhere. Late Afro-beat king, Fela, alluded to this in one of his songs. They believe that
asking for improvement in social rights in the name of revolutionary struggle is to confuse means with
ends. They contend that achieving social rights, or equal pay are mere diversions (means) in the journey
to the main destination of a totally classless society (end). They note that striving for change in the law
ignores the fundamental purpose of all law in a bourgeois society, which is to support existing social
structure. Also, they observe that the rule of law was a decoy to lull the oppressed into the belief in the
neutrality of law and the apoliticality of jurisprudence.

CRITIQUE OF MARXISM
Marxism has been much enriched by its multi-disciplinary approach. And because the doctrine

55
focuses on the material conditions – of most labourers, workers, employees, the downtrodden, the
dispossessed, etc, – across the globe, it commands universal appeal. However, its blueprint for the
overthrow of capitalists is highly controversial and debated.
Basically, Marxism scorns the discipline of law because it sees it as filled with capitalist values, because
it ministers to the welfare of the capitalist creed. With this mindset, it could not recognize the crucial role
law could play in enhancing the lots or boosting the material conditions of the proletariat. Notice that
there have been cases where genuine legal reforms in some legal systems have, in fact, elevated persons
who were hitherto proletarians into the capitalist class. This implies high social mobility. And if there is
such mobility, proletarians will not answer Marxist call to effect revolution in the society.
Marxism does not pay any regard to human rights, or rule of law. It may not be a coincidence that the
countries that subscribed to the doctrine were ruled by dictators who oppressed the people under the
guise of instituting an egalitarian, classless, socialist or communist system of governments.
Contemporary examples include North Korea, Cuba, etc.
Also, despite the beauty of the Marxist design, it has not stood the test of time. It is true that the gross
inadequacies of the capitalist system justify alternative system of statecraft, including Marxist socialism.
But because of the inherent contradiction in the ideology, it lost its relevance. For example, the ideology
promoted the introduction of a classless society despite the fact that inequality is a fact of life. Again, it
advocated the abolition of law notwithstanding the timehonoured reality that a society lacking in rules
and regulations is one propelled by social Darwinism (survival of the fittest), and driven by Hobbesian
state of nature where life is short, nasty and brutish. Such society is inherently anarchic.
Note that the internal contradiction of the ideology probably led to its collapse in the USSR, former
Eastern Europe (including Poland, Bulgaria, etc.) towards the end of the 1990s. What the collapse
probably demonstrated is the failure of the socialist system. It is worthy of note that the countries in
question have now embraced liberal democracy and capitalist ideology.

56
 Applicability of kelsens theory of law in Uganda today.

The doctrine of revolution in law has been used to legitimize violent and unconstitutional
regime changes in number of countries. This was first applied in the case of
StateVsDossoandanother.9 Court observed that in determining the validity of laws one of
the basic positivist’s doctrines is that one requires the jurist to presuppose the validity of
the constitution, this doctrine was further applied in the case of
UgandaVsCommissionerofprisonsExparteMatovu.10In thiscase,the applicant who had been arrested under
the deportation Act on 22 may 1966 was released and detained again on 16th july 1966 under
the emergence legislation which came into force after his first arrest, later the applicant
on 11th august 1966 was served with a detention order pursuant to Art 31(1)a of the
constitution between February and April where events took place that led to the abolition
of the 1962 constitution and the adoption of the 1966. Prior to this change the prime
minister had deprived the president and the vice president of their offices contrary to
1962 constitution.

Court relied on Kelsens theory to hold that the series of events that took place in
Uganda from February 22 to April 1966 were law creating facts described in law as
revolution that is to say there was an abrupt political change not contemplated by the
existing constitution that destroyed the entire legal order hence the prime minister of
Uganda Obote had assumed all executive powers as president by abrogating the 1962
constitution and replacing it with another one

It was there for held that though the 1966 constitution had extra-legal origins it was
legally valid constitution that destroyed the entire legal order of 1962 by

9
(1958) SC pg 533
10
(1966) East Africa pg 514

57
 victorious revolution.

Kelsen’s idea of the constitution being the basis of an effective corrosive order has been
reflected in Ugandan constitution under article 2(1) and (2) of the constitution which
provide that the constitution is the supreme law of the land and all the other laws derive
their validity from it. Incase such laws are inconsistent with the provision of the
constitution the will be void to the extent of their inconsistency this can further be
seen in the case of SalvatoriAbukiVs AttorneyGeneral.In this case court declared the witch
craft act unconstitutional since the in contra version of article 26 of the constitution.

Applicability of the historical and anthropological theory of law in Uganda

today.

• In most of the Ugandan societies customs have prohibited certain acts for example
adultery. This has been reflected in our laws which are against immorality. For example
the penal code act under section 150 is against adultery just as Savigne’s idea of customs.
This has further been explained in the case of UgandaVsJohnEduku.11In this case the
accused john Eduku was charged adultery on allegations of sleeping with married
woman. Court held that sincethe bridepricehadnotbeenpaidinfullnocustomarymarriagesubsistedbetween
thepartiesandthereforethechargeofadulterycouldnotbesustained.
Furthermore it should be noted that the husband will be compensated case the woman’s
adultery. This is further showed in GakwavuVsMariana Gasengayire.12Court held that
undersection22ofthedivorceactahusbandcan recoverdamagesfromanypersonwhocommitsadulterywithhiswifebutthe
reverseisnottrue.

• Today in Uganda we see that customary perceptions have changed with the
development of modern scientific techniques just like the historical school that growth
with changes of time. As seen under section 16 of the judicature Act that recognizes the
application of common law and doctrines of equity in Uganda

11
(1975) HCB 359

1
(1977) HCB at pg

5
 in case there is no that prescribed for the issue in question. Also in the South African
case of StateVsMukwanyane.13The issue in this case waswhatwere
theBantucustomsofthepeopleinSouthAfricawithregardtopersonswho
commitmurder.Court stated that the law must reflect the concept of reconciliation as well
as humanity and dignity thus the death penalty was considered unconstitutional since
there was need for reconciliation and forgiveness among the people after the
apartheid times.

• Sir Henry Maine expounded on the idea the transfer of law brings in the aspect
which requires examination in the development of law in Uganda which is the relation
between the English president and Ugandan law as reflected under section 3 of the
judicature act which is to the effect “theappliedlawthatis commonlaw,thedoctrinesofequityshallbeinforceonlysofarasthe
circumstancesofUgandaanditspeoplepermitandsubjecttosuchthe
circumstancesmayrenderthemnecessary.”

In NyaliVsAttorneyGeneral14 lord Denning commenting on the similar provision

in the Kenya order in council stated that, “Ithinkthiswiseprovisionshouldbe liberallyconstrued.Since
the recognition that common law cannot be applied in foreign land without
considerable Qualifications.

See also the case of MwengeVsMigadde15(1933)ULRpg97

in conclusion therefore what law is perceived to be depends on the historical moment

and the ideological construct paradigm within which the definition was made. Therefore
the various legal philosophers who have attempted to define law have definitely done so
within the specific historical period and the mode of production in which they lived.
Furthermore the definition will also depend upon the ideological conceptions of the jurist
thus the historical jurist based their understanding on the period of its existence and
mostly on the circumstances that existed in that time.
13
Constitutional court of south Africa no 3/94
14
(1955)1 ALLER pg 646
15
(1933) ULR pg 97

5
Applicability of the Marxist theory in Uganda today.

• The concept of state and law was perceived to be an instrument of oppressing the
poor by the rich also he stated that the state machinery was a tool used to subdue the
interests of proletarian in order to guard the interests of the ruling class. This has been
examined in light of the use of police in Uganda today to disperse groups that have not
gotten permission to hold any public gathering and incase the don’t correspond then the
police will disperse their meeting, for example recently in Uganda the police have
dispersed most of the opposition meetings with tear gas and massive arrests whenever
they converge to hold demonstration an example is recently Kampala lord Mayer Julius
Lukwago, Dr. kizza Besiege have been put to house arrests on several occasions.

• The concept of ideology, this idea in Uganda today is seen to be mixed. The failed
to have meaningful impact in Africa due to constant changes in means of production and
regimes an example can be seen by Milton Obote who perused the socialist idea as seen
the “themovetotheleft” on his overthrow by Amin anew military idea was adopted of
expelling the Asians in 1972 in what known as the “Economicwar” Africanisation. And when
the NRM government came into power it introduced various ideologies through the
ten point program.

In conclusive remark therefore the philosophy of law is interested in general question

what is law, and it presupposes that law is unique social political phenomenon with more
or less universal characteristics that can be discerned through philosophical analysis. It
should be noted that its difficult or impossible to get universally accepted definition of
law and this difficulty has been highlighted by Thurman Arnold in his book
“thesymbolofgovernment” where he emphasized the futility of defining law stating that
‘lawcanneverbedefinedwith equalobviousness,howeveritshouldbesaidthattheadvancesoflegal
institutionsmustnevergiveupthestruggletodefinelawbecauseitisan
essentialpartoftheaidthat’srational’hence law can be defined basing on the ideology
person perceives just as seen in the discussions that have been given above with various
ideas about law.

6
 Discuss the Importance of law to
society.

• It’s a tool for social control used to achieve social and public order. This has
been achieved through the penal techniques for example;

(a) .Penal code which defines criminal offenses and prescribes penalties
thereof,

(b). Remedial techniques which enables victims of legal wrongs attain

compensation which is done through the award of damages.

©. Government action such as taxation also regulates social behaviour

• Law is intended to protect property rights for example the penal code Act
outlaws robbery, theft, burglary that is to say, the land act and the Registration of tittles
Act. Is aimed at protecting the property rights of e individual.

• Law is tool of fiscal policy and is used to control/ regulate the economy laws
on taxation

• Law guarantees civil rights and liberties for example the 1995 constitution of
Uganda under chapter four lays down all the human rights of people, the Bill of rights.

• Law reinforces social values and morals for example the penal code Act cap
120 under section out laws incest, bestiality, the Anti-guy act out laws homosexuality
(that’s marriage between persons of the same sex)

• Law is intended to ensure public health for example the public health Act, the
pharmacy and drugs Act.

• Law is also used to protect the environment for the example the National
Environment Act cap..

Law suppresses deviant behavior that is to say the socially undesirable conduct is criminalized
for example the offense of affray, theft, murder, robbery, Rape, Defilemen

6
6