DR Mkoyogo Lectures in Jurisprudence

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LECTURES ON PHILOSOPHY AND JURISPRUDENCE
ESSENTIALS OF SCIENTIFIC THEORY OF LAW:
- Concept of Law
- Legal rules
- Definition - Rules of morality
- Source law & state - Concept of Legal System
- Theory of Interpretation
- Concept of Dispute Processing
- mediation, arbitration, conciliation

- adjudication, self-help, feuds vendeta; etc.
- Concept of Justice
_ Justice: Power.
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Dr. M.C. Mukoyogo
_ CHAPTER I
JURISPRUDENCE OR LEGAL THEORY OR

THE SCIENCE OF LAW
What is jurisprudence?
The Nature and scope of jurisprudence
The Relevancy of Jurisprudence to the Study of Law.
The Various Schools or Trends in Jurisprudence.
- The Science of Law or Legal Theory
- A mode of Thought, repository of Thought
- Knowledge of Things divine and Human (Roman Jurists)
- A repository of sources from which law emanates
No General agreement as to the definition.
Views of William Twining

Karl Llewellyn
Ronald Dworkin
What Jurisprudence deals with
- examination and classification of ideas and theories, analysis on the basis of

lines of inquiry developed in anthropology, philosophy politics, psycology, sociology,
history etc.
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- Jurisprudence as a mode of thought is traceable from PLATO and

ANSTOTLE: but these two made no distinction between Legal and social theory.
What are the main tenents of a scientific Theory of Law?
- Theory of Law, what is law? What are the sources of Law?
- Theory or concept of a legal system

- Theory or concept of Interpretation
- Theory or concept of Adjudication
JURISPRUDENCE
There exist no agreement as to what jurisprudence is. According to William

Twining2 jurisprudence is the study of issues and arguments of law through texts.
Reading and criticizing jurists is a means of self-definition and a process of clarifying,
refining and justifying one's assumptions about important questions. For example,
assumptions about a legal system, a theory of law, or a theory of adjudication, etc.
For Karl Llewellyn3 jurisprudence and legal theory mean one and the same thing.
Thus jurisprudence or legal theory is a very careful and sustained thinking about any
phase of things legal; if thinking seeks to reach beyond the practical solution of an
immediate problem at hand. Jurisprudence or legal theory includes any type of all
honest and thoughtful generalization in the field legal.
Ronald Dworkin4 has suggested that when lawyers deal with problems which are not
technical (i.e. arguing cases, or advising clients, or drafting laws to meet specific
ends) and when there is no general agreement on how to proceed, then the history of
the subject in England and America. He maintains that jurisprudence must bridge
legal and moral theory.
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The Nature and Scope of Jurisprudence:
Jurisprudence is much more than a technique, it embraces history, economics,

sociology, ethics and the philosophy of life. It is bigger than law, wider than the
French case law. To understand jurisprudence, one must consider "ideology", even
though "ideology" is more implicit than explicit. One must go beyond the vocal
expressions of the lawyers. Jurisprudence deals with the universal while law deals
with the particular.
The Relevance of Jurisprudence
Jurisprudence equips a lawyer with the necessary social and philosophical basis of
law. It explains what law is all about, the purpose of law, the role and functions of
law and lawyers in society, the way legal institutions arise, and operate.
Jurisprudence provides an academic orientation and cultivates the abilities for critical
thought by examining the two sides of the coin namely, the legally dogmatic and the
social situation which requires the solution to the problem. In the study of law, which
includes the understanding and appraisal of the relevance of the subject matter, leads
towards the exploration of the meaning and effect of the rules and principles of
society.
Jurisprudence provides a link between the natural and social sciences. Jurisprudence
as a science is concerned with patterns of behavior of man in society. It tries to
accumulate facts classifying them and brings about ways of control.
The Various Schools or trends in Jurisprudence.
There are two main trends in jurisprudence, namely, the idealist (Bourgeoisie)
schools, the main ones being Natural law and Positivistic tendencies; and the
materialist schools and their variants.
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Presentation of the subject-matter of jurisprudence will commence with the

examination of the history of philosophy: beginning with primitive socio-economic
formations and the corresponding theory of knowledge which brings to the rise of
western philosophy in Greece and Rome. Then there will follow the speculation on
law in the form of Natural Law or law of nature from the Works of Sophocles to
revolutionary natural law in the hands of the bourgeoisie in France, Britain and
America and its role in the emanacipation of slaves together with the post World War
Period.
The positivistic tendencies beginning with Auguste Comte, examining specifically the
fathers of positivism in law especially Jeremy Bentham, John Austin, Kelsen and their
critics. Then deal with the sociological schools in both America and the Scandinavian
countries. The historical school etc. All the time showing the relevance of all these
schools in Tanzania and African general.
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DIAGRAM ON THE DEVELOPMENT OF MAN AND HUMAN
THOUGHT/INSTITUTIONS
Savagery Hunting Collective Mythology

gathering Labour
Barbarism Agriculure Specialised

simple Production
tools Division
with
Produces
Civilization Machinery
(Improved Classes
Tools)
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Notes
1. Lloyd of Hampstead & Freeman, MDA, Lloyd's Introduction to

Jurisprudence, 5th Edition, London 1985 Ch. 1.
2. William Twining, "LL.M. Jurisprudence and Legal Theory 1986-87"

(Mimeo).
3. Karl Llewellyn, Law in our Society, in William Twining Karl Llewellyn and
the Realist Movement, London
(W & N) 1985 p. 170 at 172.
4. Ronald Dworkin, Taking Rights Seriously, Duckworth 1981, Chapter 1.

_ CHAPTER II
PHILOSOPHY AND ITS ORIGINS
1. "It is not the consciousness of men that determine their being but their social
being that determines their consciousness" - K. Marx - The Critique of Political
Economy in Marx/Engels, Selected Works,
2. Origins of philosophy
Mode of production of material life

(i) Conditions the social political and intellectual life process in general;
(ii) all social and political relations;
(iii) all religious and legal systems;
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(iv) all theoretical outbooks - to be comprehended through material

conditions.
3. Recognition of the supremacy of matter over mind (spirit, thought,

consciousness) matter: a philosophical category which denotes reality to man
through sensations - copied or photographed and reflected by sensations; matter exists
independent of sensations.
4. Matter is in a state of motion and change.

All change involves motion and all motion involves change. This applies to
natural phenomenon and human society as well as thought.
All social and mental processes are subject to the same fundamental
laws of motion and change.
5. Dialectics
The study of the essence of laws of change:

(i) the law of contradiction;
(ii) the law of conversion of energy;
(iii) Unity of opposites;
(iv) From lower to higher.
6. Contradiction
the laws of dialectics rest on the principle of contradiction

All motion, all change, consists in the development of internal
contradictions inherent in the nature of things.
7. Man and the Animals

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Man is conscious of his environment as separate from himself, as an object of

his activity in the labour for production. Therefore, being conscious of nature as an
object is also conscious of himself as a subject. The contradiction between the
subject; man, and the object, nature underlies all human activity, being inherent in the
labour process.
8. What does labour for production Involve?
- the conscious organisation of man's action on nature;

- the cooperative nature in the labour activity involves the conscious
organisation of man's relations with his fellow men.
- Labour is social in production because men act on nature as well as on

one another.
- Human consciousness is not merely a relationship between the

individual and the environment, but a social image the relation between society and
its environment as reflected in the individual.
9. Primitive Knowledge.
In the course of social practice persued by man consciously with the aim of
changing the world, man acquires through trial and error an understanding of its laws.
(the laws of the world).
At first his knowledge was confined to external appearances of things. This

was a stage of perceptual knowledge.
Through further practice, man penetrates into the essentials of nature. This is
a stage for rational knowledge or logical knowledge.
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The advance from perceptual knowledge based on sense impressions, to

rational knowledge based on fully developed concepts leads to cognition.
The advance from perceptual to rational knowledge is effected through the

process of analysis and synthesis, in which man conceptualises his sense impressions
by abstracting the essential from the phenomenal, the general from the particular and
by arranging them in a theoretical system based on logical categories. This stage is
observed whenever we extend our knowledge into some sphere of activity previosuly
unknown to us or known supervicially. It is observable in children:
The process of forming simple concepts begins in children as soon as

they begin to speak, but the stage of fully developed conceptual thinking, including
comprehension of logical relationships is attained at puberty. This process of learning
to speak and think is the vehicle through which the child assimilates the knowledge
accumulated by its elders, and therefore the level which it eventually attains depends
on the cultural level of the community.
10. Primitive Thought
- discermible in children (childlike)

- it operates at the level of perceptual knowledge
- In opposition with Civilised thought it is concrete, subjective, deficient

in the power of abstraction, reflect an affective rather than a cognitive attitude to
reality
- It corresponds to the lower level of social practice.
11. Features of Primitive Thought

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(i) the Associative complex manifested in the grammatical category

(gender) and Totenism
(ii) Ritual
(iii) Myth.
The Association Complex:
a phenomen first identified by Vygotsky later followed by Parvlov (Children and

dogs).
- A child's early stage of development - thought in complexes. A complex
being a group of objects loosely associated in a child's mind in the course of social
practice.
- At first the grouping is wholly subjective based on superficial sense

impressions, inherently unstable.
- With further practice, the child begins to recognise certain objective

relationships, perceptual and functional rather than rational or formal. Such a
complex is regarded as a "family" of related objects.
- In a complex the bonds between its components are concrete and factual rather
than abstract and logical... the question is settled by facts.
In its original form the totemic clan or the family group was actually the
prototype of all such complexes.
Grammatical Classes
- The process of thinking in complexes underlay certain grammatical categories.

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- A feature common to all languages of the world is the existence of

grammatical classes.
- Every substantive is assigned to one or the other of two or more classes, which
are morphologically distinct. There is a variation in the basis of classification.
In some African languages the substantives are classified as animate and
inanimate and in others big and little. In European languages there are three classes
which are called 'genders' masculine, feminine and neutra.
In German for example they are represented by der Man, die Frau das Anto (the first
representing masculine, the second feminine and the third neutral).
- The category of gender is related to distinction of sex, the distinction is in no

way logical or objective. It is purely formal.
- Historically, at an early stage the category gender was a faithful reflection of

the real world as conceived in primitive thought. The Masculine was reserved for
male beings or things regarded as sharing male functions, such as the sky as a source
of rain and rivers as fertilizing agents.
- The Feminine was reserved for female beings and things, eg. the earth and
trees which bear fruit.
- The neuter (neutro) was associated with offsprings and children, which being
immature were regarded as sexless.
- Thus the category gender was in origin an associative complex in which the
natural phenomenon was reduced to order in primitive consciousness by arranging
them in groups based on sex.
The Associative Complex and Totemism

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- Totemism was the ideological characteristic of the primitive tribe.
- Totemism goes back to the initial stage in the emergence of the human society
out of the animal world.
- In that stage man had not yet separated himself from nature, objectively or
subjectively.
- Objectively man's relationship to his fellow men were natural rather than
social.
- Subjectively those relations were expressed interms of his relations with

nature.
Totemism
- A magico-religious system characteristic of tribal society.
- Each clan of which the tribe was composed was associated with some natural
object: a plant or animal called a Totem (omuziro). To day manifested through
national symbols for example in Uganda a Crested Crane (bird), Tanzania a Giraffe
and Kenya a Lion.
- Clansmen regarded themselves akin to their totem species and descended from
it.
- They were forbidden to eat it and performed annual ceremonies to increase its
numbers.
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- Members of the same totem were not allowed to intermarry (with the
exception of endogamous groups) they observed the rule of exogamy.
Modern Churches and the Totem: Kibira's writings

- The clan was seen as a totemic grouping which provided a framework for the
formation of the associative complex, in that, social relationships of the tribal man
were linked with nature and the relationship between individuals was seen as a natural
order.
- Through totemism man acquired the ability to explain his relationship with
nature in totality.
- Ceremonies for the propagation of the totem species were performed at the
opening of the breeding season at a prescribed spot called the totem centre, on a
hunting ground of the clan to which a totem belonged.
- At the performance of the increase ceremony the headman of the clan was
permitted to eat a little of the species HE MUST GET THE TOTEM INSIDE HIM in
order to work his magic. (Akin to modern Holy Communion in most of the Christian
Churches to day).
- Magic rests on the principle that by creating the illusion that you control
reality you can control it.
Mimetic dances
- It is an illusory technique complementary with the deficiencies of the real
technique.
- The ideology of magic embodies the valuable truth that the external world can
in fact be changed by man's subject attitude to it.
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The Improvement in the Tools of Labour:
- With improvement in the tools of labour, the system lost its economic basis,
the practice became purely magical to make the species increase and multiply for the
community and the taboo being cut off from its economic origin it became absolute.
- The ceremonies were modified instead of them representing the activities of

the totem species, they became celebrations of events in the life of the totem
ancestors.
- It served the purpose of transmitting the clan traditions to the new and rising
generation.
- The procedure which began as an inseparable part of the made of production

was converted into a purely magico-religious system providing a sanction for the
social structure which has grown out of it.
Just as the social organism consists of so many clans and groups of clans each
with its own totem species, so the world of nature, the sea, the streams, hills, valleys,
heavenly bodies and all that dwell therein are classified in totemic models.
- Various Kinds of trees: grouped with kinds of birds that nest in them.
- Water assigned to the same group as waterfall and fish.
- The world of nature reduced to order projecting on to it the organisation

imposed by nature on society.
- The world order becomes the reflection of the social order - a reflection which
owing to man's weakness in the face of nature is still simple and direct.
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The Totemic Cycle of Birth and Death:
- Child getting is as vital as food getting.
- Whole training of the young concentrated on these techniques (food getting).
- Since the female part in reproduction is at once more apparent and more
difficult than the male, the magic was intended to assist it from the onset to bare a
feminine stamp.
INITIATION - transition from one stage to another stage was effected through
initiation - the most important was performed at puberty when the adolescents became
full members of the group, trained for production and reproduction (Jando na
Unyago: Kumcheza Mtoto):
The significance of this crucial change (physical, mental, socio-

economic) was expressed in primitive thought by the idea that at initiation the
individual dies and is born again.
(Ubulokole Abarumka born again: (has its origins in this practice of
initiation. Circumciscion is another).
This is the basic concept underlying the whole history of religion, hence, the
importance of understanding it.
The newborn was greeted as one of the clan ancestors come to life
again, as the reinearuation of the clan Totem.
This explains the reason why the world over it is or it has been the custom to name
the child after one of its projenitors - a custom often associated with a rule that the
person whose name is chosen must be dead. The name is a totemic symbol and
therefore magical.
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- Just as the ancestor is born again as an infant, so at puberty the child dies as a
child and is born again as a man or woman.
- The occasion is marked by giving him or her a new name.
- The adult is transformed by the same means into an elder - through the ritual
of admission into the status of medicineman and the novice receives a new name.
- Finally at death the elder is numbered among the totemic ancestry, the highest
grade of all, from which in due course he/she re-emerges to pass through the whole
clan cycle again: Birth is death and Death is Birth: They are complementary aspects
of an eternal force of change.
FROM TOTEMISM TO RELIGION
- Transmission of tribal traditions through myths:-
- Originally myths were nothing more than the oral accompaniment of the ritual
act.
- Detached from ritual, they became more coherent and objective, leading to the
transformation of abstractions of space and time.
MATURE RELIGION AS COMPARED TO TOTEMISM
- Under totemism there are no prayers but only commands. The worshipers
impose their will on the totem by compelling force of magic, and this is through
collective copulsion corresponding to society's level of development: the whole
community was supreme.
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- In the more advanced form of worship (religion) when the community had
produced surplus it became possible for a few men/women to live on the labour of the
many.
- The headman ceased to be elective he became hereditory chieftaincy.
- The totem is attended with prayer and propitiation, it assumes a human shape,
and becomes a god.
The god is to the community at large what the Chief is to his society or
subjects. He is endowed with all the qualities of the ideal Chief and worshiped with
ceremonies modelled on the services of the real Chief. The idea of the godhead is the
projection of the real kingship.
- In human consciousness this relationship is inverted. The King is believed to

derive his power from god and his will is the will of god.
- Further expansion of class privileges:

- an increasing complexity in Divine Powers from which it
draws sanctions.
- As the ruling clan extended its authority, it annexed the totem gods of other
clans and absorbed them into its own.
- The Royal Totem became the God of the tribe or league of tribes and
eventually the state.
- Some gods were conquered by others, wars between kings and nations are
again engaged in Heaven. [Exodus is a good example of this explanation].
NATURAL PHILOSOPHY
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The following points must be born in mind for us to understand Natural Philosophy:
1. Knowledge is a dialectical process which proceeds in a cyclical movement

through three successive stages.
(a) Perceptual Knowledge:

a process of cognition in contact with objects of the external world.
(Knowledge through experience).
(b) Rational Knowledge:

synthesis of data of perception by arranging it and reconstructing it.
This is the stage of conception, judgement and inferences.
(c) The Return from theory and Practice

Knowledge which begins with practice and theoretical knowledge
acquired through practice must return to practice.
This is the process of testing and developing theory, the continuation of the
whole process of cognition.
- The transition from perceptual to rational knowledge coincided with the

division of society into classes.
- It was through the emergence of the ruling class free from manual labour that
the development of theoretical knowledge became possible.
- The same class, once established became isolated from practice and tended to
abstract further development of knowledge.
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- Early philosophers and their philosophies to be examined later based on

speculation on the natural order, but already the seeds for the emergence of the
absolute order had been sawn with the emergence of classes.
WESTERN PHILOSOPHY
- traceable from Greece,

- Influenced by the Civilizations of Egypt and Mesopotamia
- Miletus was the main centre of Greek philosophy during the 5thC BC.
- Miletus one of the lonian islands, the centre of civilization: it consisted of 90

colonies, a sea port and international trade flonished. Between 800-600 BC iron was
discovered. The discovery of iron revolutionarised everything. Weapons were made
available for warfare; improved tools of production and commerce. The coin used in
trade was introduced it increased the division of labour: agriculture and manufacture
and emergency of the aristocracy owning slaves: merchants and marines.
- Invention of the Alphabet took place about the same time, made recording
easy and wider reading: priests and magicians knowledge instead of being passed on
oraly it could be transmitted through the Alphabet. Natural Philosophers to be studied
emerged during this period. [George Thomson, First Philosophers, London 1974, pp.
51-58; Goldon Childe, What Happened in History, Penguine 1967, pp. 223-224].
MATERIALIST PHILOSOPHERS:
THE MILESIAN SCHOOL: Thales and Anaximander
- Thales and Anaximander were the Earliest materialist philosophers. They

belonged to MILETUS which was the most prosperous of the new city state on the
Aegean Coast of the Asia Minor.
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- Both were members of the Mercantile Aristocracy - a group of members of

land owning families who had turned to trade.
- As members of the nobility, they had inherited many tribal traditions, some of
which had been acquired through contact with the Older Civilizations of the Near
East.
- Among what were inherited were the COSMOLOGICAL MYTHS which

were reinterpreted into rational hypotheses.
- Their knowledge of Babylonian Astronomy permitted them especially Thales

to predict the Solar Eclipse of May 28, 585 BC.
- The first philosophers did not openly opposed religion, but they excluded it
from philosophy by identifying the Divine with the property of spontaneous motion
which was believed to be inherent in matter.
THREE BASIC PREMISES OF THE FIRST PHILOSOPHERS:
1. Common origin - The Universe evolved by fussion from a single primary

substance which Anaximander called the Unlimited that is undifferentiated.
2. Perpertual Motion - The primary substance is endowed with a rotary

movement with the result that portions of it fly out to the periphery, where they form
an outer ring of five and an inner ring of air, while other portions gather at the centre
where they form earth and water, enveloped in the ring of air.
3. The Conflict of the Opposites - the above being described as a process in

perpertual struggle, in which the opposites: hot and cold, wet and dry, light and
heavy, encroach on one another, with the result that they are periodically absorbed in
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the undifferentiated primary substance out of which they have emerged. This struggle
underlies the cycle of the seasons, and there is also a cosmic cycle in which the
Universe is periodically destroyed.
- From the foregoing we notice that these philosophers were more inclined to
natural science in their investigations.
- For them there was no distinction between the physical (Natural) and Spritual
World.
- They represent the substantive, or ideological element in modern science

which can only be controlled to the extent that it is made the subject of a scientific
theory of society.
THALES
- Little is known about Thales

- It is said that he was interested in astronomy, geometry and engineering as
well as commerce.
- He had also an interest in philosophy.
- He held that the world evolved from an original state of things in which there
was nothing but water.
- He also maintained that the Earth floats on water.
ANAXIMANDER
- made the map of the world.

- Wrote a book on cosmology from which a few fragments survive.
- For Anaximander the beginning of things is THE UNLIMITED which is
immortal, imperishable and endoned with motion. It is therefore Divine.
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As a consequence of motion, the opposites - the hot, dry, wet and cold
separated from it as follows: A porting the unilianited, pregnant with these opposites,
separated from the rest, and within it there emerged the hot and the cold.
The hot moved towards, where it formed a sphere of fire, the cold moved
inwards and separated into earth and air, the earth being situated in the centre and
developed by air.
Then on earth the wet and dry were separated out by the heat from the sphere
of fire, and, conversely the cold broke up the sphere of fire into separate rings,
endorsed by air, but containing a number of apertures; and these apertures, through
which the fire is visible, are the sun, moon, and stars.
Thus the Universe is composed of fire, air, sea, earth corresponding to the two
pairs of opposites hot and cold, wet and dry.
Anaximander
- Maintained that living creatures evolved from moisture on earth as it

evaporated from the sun.
- The theory rests on three pre-conceived ideas:
- common origin
- perpertual motion
- conflict of the opposites
- All things have a common origin. The Universe evolved from a single
undifferentiated mass.
- All things are in continual motion.

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- Motion is the mode of existence of matter, there cannot be matter without

motion.
- Development consists in conflict of the opposites.

- Conflict of the opposites is a process in which things encroach periodically on
one another and lose their identity by becoming reabsorbed into the undifferentiated
form of matter out of which they emerged.
- The Universe is in perpetual motion which takes the form of a series of

cyclical movements, the hot, the cold, the wet and the dry prevail alternatively over
one another this producing Summer and Winter, Spring and Atumn in the cycle of the
year.
- The beginning of all things was Air. Air includes mist and darkness. The
world evolved by rare faction and condensation of primary substance. By rarefaction
air because fire, by condensation it became water and earth. Just as the son, being air
holds us together, so breath or air encompases the whole world.
- He associated rarefaction with heat and condensation with cold.
- He postulated two movements similar to the respiratory system:

- One which condenses air into water and earth
- the other rarefying it into fire.
IDEALIST PHILOSOPHERS - PURE REASON
- The Pythagoreans of Kroton-South Italy.

- Oposed to the Milesian school
- Headed by Pythogoras - who was a native of Samos, son of an engraver of
germs.
- Investigated into the Theory of number
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- Made the first advances in the study of mathematics beyond the needs of
trade.
Pythagoras was a religious mystic, beliewved in the transmigration of souls
founded a religious order. He preached that after death the souls of men are
reincarnated in animals.
THE THEORY OF NUMBER:
Pythagoras maintained that

- the primary substance is the number.
- The original pair, the point and the unlimited represent the number in its two
aspects: Odd and even
- as a material substance the number has extensions in space.
- The Universe is an aggregate of numerical quantities. How the agregation
came into existence has no explanation.
- The unlimited was equiped with the void, and the first unit absorbed a portion
of the unlimited, thereby humiligit, at the same time dividing itself into two, by
combination of the same process two generated three, and so on.
- The first unit represented the point.

- The number two represented the line .............. extended in one dimension.
- Four the Pyramid extended extended into three dimensions, and so on.
The Pythagoreans developed phiosophical idealism.
OBJECTIVE DIALECTICS - SCHOOL
Herakleitos and the Democratic Revolution of Solon.
Democratic Revolution
- Struggle between - Landed nobles
- Merchants
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- Peasants
- Slaves
- The Persian Wars 479BC
Herakleitos and Permenides

Heraklertos:
- member of the mobility of Ephesus
- anti-democratic revolution because of the people's banishment of his brother.
- Held that the world is held together by tension and strife. Strife is absolute.
- The primary substance is fire corresponding to the water the unlimited and air.
- Fires is not the primary substance in the sense of being original. It has existed
always.
The Universe is timeless and self-regulating.
Fire with which he identifies origin, is not primary in the sense of symbolising
the fundamental law of existence, a law of perpertual change and strife of the
opposites.
- The reality is an abstraction.

- Fire lives the death of air, and air the death of fire, water lives the death of
earth and earth lives the death of water.
- This eternal cycle maintains the world in being.
- In the circumference of a circle the beginning and the end are common.
- Every beginning is the end, and every end is a beginning. There is no

beginning, no end, the world is everlasting.
- Each element is encroaching on the next, this explains the periodities of
nature:
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day and night, morning and evening, summer and winter, spring and autumn,
waking and sleeping, prophesying and dreaming; life and death, childhood and old
age.
- Life, sleep and death correspond to fire, water and earth, the sun corresponds
to the soul in man.
- Everything that lives dies, and everything that dies is born again and becomes
god and man.
- A conception of the Universe as an organic unity of mind and matter.
ELEATIC SCHOOL - PERMENEDES
Xenophanes of Krophon - founder of the Eleatic School.

- easy living nobleman, accomplished after dinner singer.
- Belief in "one god the greatest among gods and men, resembling mortals
neither in shape nor understanding, he sees all over, thinks all over, hears all over,
weighs things by his intelligence without effort."
Influenced PERMENEDES - who was born in the last quarter of the fifth
century BC.
- active in politics.
Drew up a code of laws for his native city.
- a close friend to a Pythagorean:

Ameinias
The way of truth contains his views on the nature of the Universe. He denies
the existence of the senses.
- Makes reference to the Intelligible World.

In the Way of Seeing he makes reference to the Sensible World. In the way of
truth he aimed at attacking the Pythagorean dualism. He maintained that the
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opposites are mutually exclusive: If there is light, there can be no darkness, if good,
no evil, if being no not being.
This is a metaphysical conception of being which contradicts the dialectical
conception of becoming.
- The truth can not be comprehended by the senses "the airless eye and the
ringing ear and tongue" but reason (logos) that is pure reason. Permenides became
the first philosopher of Pure Reason, the First Metaphysician.
ONE is:
(a) timeless: it has neither past nor future it exists wholly in the present. It
is subject to neither birth nor death, neither beginning nor end.
(b) It is Indivisible: It is full of what it is. It is all continuous being

touches being.
(c) It is motionless: It is immovable. It is motionless and unchanging

because it is one, and, being one, it is unlimited.
The Permedian One represents the earliest attempt to formulate the idea of substance
an idea which was later developed by Plato and Austotle, and brought to maturity by
bourgeois philosophers.
THE ATOMISTS or ATOMIC THEORY
- After Permenides, primitive thought was abandoned and new Greek philosphy
emerged.
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- There developed theoretical and abstract reasoning corresponding to the

division of labour and the division of society into classes. The question of philosophy
became materialism against idealism.
- Concentration turned on the problem of motion: If the reality of the

perceptual world was to be re-established, then it was necessary to find the cause of
motion.
Previously the assumption had been that motion was the property of matter.
In later days it became established that matter is inert in itself.
It only moves under the impact of some external force such as the love and strife of
Empedokles, the mind of Anaxagoras, and Aristotle's first mover.
Aristotle had maintained that the principle of subordination was a Universal law of
nature. As a slave to his master, so the wife to her husband, body to soul, matter to
mind, the Universe to God.
EMPEDOKLES of Akragas
- a leading democrat, a prophet and miracle worker who claimed to be god
incarnate.
- He studied medicine.
- Made no distinction between thought and sensations, believed that man thinks
with his blood.
- The Universe was indivisible and motionless composed of four roots: earth,
air, fire and water these are in constant motion: they move in and out of one another
and thereby effecting changes in the structure of the Universe.
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- They are kept in motion by two opposed forces: love and strife. They are
drawn together by love and driven apart by strife. These were mystical.
ANAXAGORAS of Klazomenai
- everything is infintely divisible, even the smallest portion of matter contains
some of each element.
- A thing appears to be that which they contain most. For example everything
contains some fire.
- Mind or Nous is the substance which enters into composition of living things
and distinguishing them from dead matter.
- In everything there is a portion of everything except mind.
- Mind has power over all things that have life, mind is infinite and self-ruled, it
is mixed with nothing.
- Mind is the source of all motion. It causes rotation which is gradually spread
throughout the world, causing the lightest things to go to the circumference, and the
heaviest to fall towards the centre.
- Mind is uniform, it is as good in animals as in man. Man's apparent

superiority arises out of his hands.
DEMOKRITOS 460-360BC
- a wealthy citizen of Abdera in Thrance.
He postulated the infinite number of atoms, indivisible, indestructable, without
weight, falling through the void, colliding and combining to form the world, including
ourselves.
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- He developed a deterministic theory of the Universe in which every event is a

product of necessity Ananke. Ananke did shake off its mythical associations and
became an abstract idea like the modern conception of natural law.
EPICURUS of Athens 342-268BC.

- He belonged to the Philaidai
- attributed atoms to the property of weight.
- Atoms contained in themselves the cause of their own motion. In addition to

the vertical, atoms possessed an oblique motion or swerve from the straight line.
Necessity (Ananke) separated by chance (tyche) the atoms became free.
Epicurus lived in the period of intense divisions in the Greek society. His
atomism is a complement of individualism. The word atom means both àtom' and an
individual.
Idealism and Metaphysics
- The work of Permenides marked the turning point. The consolidation of class
structure of society, the growth of commodity production led to the answer on, how
the world came into being, to what it is, became more and more theorised, abstract
and rational.
The question changed in character it became what is the world made of?
What is the nature of reality? How do we know?
THE SOPHISTS - 5thC. BC.

- Lovers of Wisdom
- Concerned with problems of human spirit, human knowledge and Ethics.

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Characteristics of the 5thC. BC.

- rise of the Athenians over the Persian Gulf.
- the consummation under Pericles and his fall.
Principal Sophists
- Protagoras, Georgias, Hippias, Callicles Thrasmachus - all natives of Greater
Greece.
- Known to the world through the Dialogues of Plato in which Socrates often
disputes with the Sophists.
Sophists - men of great eloquence, dialectic ability, they travelled in various
cities, sustaining their discourse.
- Loved to oppose which were dominant ideas and often created public
scandals.
- Lived at a period when men began to challenge authority.

- They were individualists and subjectivists.
- They taught that each man had his own way of seeing and knowing things.
From this there followed a proposition that:
There cannot exist a true science which is objective and Universally
valid.
Protagoras maintained:
Man is the measure of all things, every individual has his own
particular way of reality.
They recognised the existence of difference of opinion.

Since there exists no absolute truth, absolute justice did not exist too.
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- For them, law was relative, changeable by opinion, through the expression of
arbitrary choice and force.
Thrasmachus held:
justice is that which wides the more powerful.
According to Delvechio in his Book Philosophy of Law, Washington 1953:
The sophists were the leaven which raised the great idealistic Greek
philosophy which is summarised principally in the names of Socrates, Plato and
Aristotle.
SOCRATES 469-399 BC.

- Greatest adversary of the Sophists.
- left no authentic work of is own. Known through his disciples:
(1) The Dialogues of Plato
(2) The Memorabilia of Xenophon
(3) The Treatises of Aristotle
- It is said that to others Socrates appeared as the corrupter of youth and a

menace to the accepted way of life.
- He often asserted that he knew nothing (very different from the Sophists who
thought they knew everything).
Socrate's Philosophical Teaching and Methods:
We know it through Aristotle. We are told that Socrates dealt with ethical matters
and neglected the natural world.
- Socrates attempted to discover the Universal ethical principle and in doing so

he engaged himself in definitions.
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- Socrates held that knowledge should be about Ideas
Apart from ethical questions Socrates also dealt with moral questions. He was
more interested in human conduct.
Scientific Induction
Socrates used the method of arriving at the Universal through Induction
"bringing to or leading to".
Knowledge of the Universal to be known through examining particular
instances.
- Virtue is Knowledge - Socrates maintained that Virtue consists is knowledge.

His technique of enquiry consisted of posing questions and drawing answers
from other persons:
Q. If I wanted a shoe mended, whom should I employ?

A. A shoe maker, 0 Socrates.
He would go on to carpenters, copper smiths etc. and finally ask such a
question:
Q. Who should mend the ship of the state?
- His aim was to give the impression that a person answering the question was
learning not for Socrates but from what was already contained in the germ of his
mind.
Socrates was the sort of midwife the one being questioned gave birth to
knowledge. He acted as an obstetrician who assists in bringing life to the world.
- Socrates on the knowledge of oneself.
Socrate's Theory of Knowledge:

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- distinction to be made between impressions of the senses and a product of

reason.
Impressions of the senses are varied, contain individual arbitrariness, are
unstable, subjective.
a product of reason contains knowledge which is equal for all.
Socrates and the State
He taught for the respect of the laws. He affirmed his faith in highest justice.
Obedience to the laws of the state was a duty. The good citizen must obey even bad
laws in order not to encourage bad citizens to violate the good ones. He demonstrated
the same when accused of having introduced new gods and corrupted the youth. He
milled that condemention and was executed.
PLATO 427-347 B>

- not a practical man. He was theoretical.
- A disciple of Socrates
The Socrates one find in Plato's books is not Socrates of history but Plato
himself.
- He maintained that it is not possible to know the material world.
The material world does not exist but only as an imperfect copy of the ideal. Being
constant in motion is not fully knowable. True knowledge pertains to the world of
ideas, which is motionless, immutable and divine.
Plato's Theory of Knowledge:
Knowledge is the faculty of the soul, which is immortal. When it is Incarnated

on a human body, its knowledge is overlaid through contact with the body and
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temporary forgotten but it can be recovered, even in life, by theoretical study and
above all by the persuit of philosophy which is designed free from the soul from the
culmination of the body ... Learning is the recovery of knowledge that has been lost.
Hence, a man who is learning something may be said to know it and not to know it.
The ideas of learning contain a contradiction, it is a unity of the opposites.
The Universal
Plato believed that different houses exist only in so far as they all participate in the
"ideal" house which exists only absolutely, because being abstract and universal, it is
exempt from motion and change.
Platos View of the State
The state is a man on a large scale. It is a perfect organism the most perfect assit?
Both in the individual and in the state there must reign harmony obtainable by virtue.
In a state there is an individual consisting of reason, courage and sense. Reason
dominates, courage acts and sense obeys.
In Plato's state people were divided into three main classes:
1. The Men of Gold (Wisemen) those who rule.
2. Men of Copper (the Worriors) those who defend the social organism.
3. All base Metals, those who must feed themselves and others - the artisans,
farmers etc.
Man is dominated by reason so in a state whose representation of wisdom is the

Philosopher King must ensure the happiness of all through the medium of the virtue
of all.
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The state through the Philosopher King dominates human activity in all its
manifestations upon it rests the duty to promote good in its very form.
The power of the state is absolute (without hunt) and nothing is reserved exclusively
to the will of the citizens. Everybody comes under the competency of the state.
This was a pure ideal conception of the Hellenic Period.
Plato did not believe in laws, so far as the state was under the control of the
Philosopher King. In his life he was given a chance to experiment his scheme, it
failed. He wrote the Book on Laws.
_ CHAPTER III
1. 2,500 yeras old.

2. What is Natural Law? A variety of answers.
3. The attractions of Natural law.
4. Natural Law and Idealism.
5. The Greek Origins.
6. Jus Gentium.
7. Medieval Period.
8. Renassauce, Reformation, Counter-Reformation.
9. Grotius and International Law.
10. Natural Law and Social Contract.
11. The Eighteenth Century.
12. The Nineteenth Century.
13. The Twentieth Century.
14. Fuller and the Morality of Law.
15. Hart on Natural Law.
16. Liberty and Human Rights.
17. Liberty and Civil Disobedience (Ronald Dworkin).
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18. Conclusion.
_ NATURAL LAW
Introduction:
Natural Law1 theories were predominant during the slave and feudal eras. One finds
modified notions of natural law in the period after the Second World War and to day
embudied in Constitutions as Human or Fundamental Rights.
Natural Law or higher law than man made law (or Positive law) is manifested as
divine right and reason. In later feudal society natural law ideas influenced theories
of social contract.
Natural Law means that:
1. Law which is everywhere, has the same force and exists outside human
thinking.
2. It is true law, right reason which is in agreement with nature, of universal

application, unchanging, everlasting and demands duties by its commands.
3. It is the law which nature has taught to all animals.
4. Law which is not peculiar to the human race, belonging to all living creatures,
birds, beasts and fishes.
5. This law is the source of the Union of male and female.
6. Universal law which is common to the whole of human race. The law of
nature observed by all people alike, established by divine providence, fixed and
immutable.
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According to Loyd of Hangstead:
Natural Law has played a pervasive role in ethics, politics and law, it appeals to the
religious or supernatural, it is an important instrument in politics and legal ideology, it
is a means for the justification of existing law vis-a-vis the socio-economic system. It
has sometimes been presented as a force behind positive law, ordained by god or
natural reason. The Natural rights ideas were advanced as a means of conservative
force to justify property, as a fundamental human right overriding all other rights. In
the modern days it is manifested in Constitutions of Nations as Bills of Rights.
Natural law is an idealist conception of an ideal system laid down in heaven. A law
for self-preservation.
Origins:
Greece: From the point of view of Western Legal thought, Greece is the primary
source of Western allegiance to the notion of Natural Law. It is disputed whether or
not the first manifestations were views holding for a law of nature governing the
cosmos and then applied by way of analogy to govern society or as the idea of a
Universal law.
From the previous lectures we saw that men like Aristotle, and the post-Aristotelian
schools the Stoics and the Epicurians and Roman jurists had came up with the ideas
of a Universal State corresponding to it a Universal law. We also saw that, the
Roman jurists still distinguished natural Law from Civil and international law. These
views may be said to have been influenced by Alexander the Great's Empire which
later was succeded by the Roman Empire.
It is noted that during the Greek Heroic Age there emerged a monarchical ruler and
religious form of consciousness was predominant. At first there was no attempt made
about a universal law even thought was generally felt that in each city state there was
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a body of laws which were fundamental, unchangeable and unwritten. Speculation

about natural law emanated from God who lived on Mount Olympus. Laws issued by
such god were known to the population through kings and priests. These laws
regulated the affairs of men such that unlike animals which knew no laws and killed
each other, men could live in piece. Law and religion were presented as the order of
peace founded on God. The Kings and Priests acted as arbitrators in case disputes
arose. Disobedience to God's laws meant severe punishment. But this assertion was
contradicted by one Antigone as revealed in Sophocles' Theban Plays.2
Plato's idealist philosophy laid the foundation for later speculation on Natural Law.
In his Republic Law was substituted by the Philosopher King. There was no
significant development made by Aristotle on Natural law except for his discussion
on natural and conventional justice3 even he maintained that justice among men was
changing.
During the decline of the City States 5thC. BC. and the emergence of the Hellenic
Empire the Sophists saw the decline of the Unity between philosophy and religion.
Natural law was conceptualised as a universal system attained through the conquests
of Alexander. Stress was made on individual work, moral duty and universal
brotherhood. The enlargement of the sphere of influence brought about a broader
conception of natural law and these ideas were transmitted to the Romans.
The Roman jurists were concerned with "what nature has taught animals" Ulpian, and
three categories of law were identified: Lex naturale - jus naturale or law of Nature;
Lex civil - jus civile or the law which governed the affairs of the Roman citizens
(excluding women, children and slaves) and Lex gentium - jus gentium or law of the
gentiles or foreigners who conducted trade in the Roman empire. The lex gentium
was as a result of commerce and conquests, in which case, a larges group of different
individuals were governed by that law. The jus gentium can be said to have been the
foundation of modern international law.
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The Medieval Period to be divided into:

1. The Dark Ages
2. Medieval scholasticism
3. The Classical Natural Law
4. The Revolutionary period.
The Dark Ages4
The turmoiled period which followed the fall of the Roman Empire, a period in which
a formerly prosperous society was disintegrating and an alien group of people coming
on the surface concretising itself as a feudal society. This period was also
characterised by the rise of Christianity as an ideology of the peasants with its
promise of the good future to come, a future which could be obtained through
abstainance from earthly pleasures.
The main representatives of the period were the fathers of the church and the most
famous of whom was st Augustin (354-430 AD) (Edger Bodenheimer, Jurisprudence
9-74 pp. 21-23). He was born at Tagaste in Mpodoa (Ageroa) and died as a Bishop of
Hippo (Bone). He developed theories on the history of the human race, the problem
of evil, the ultimate destiny of man, justice and the state in his book De Civitate Dei.
He differentiated the classic Greek concept and the Christian concept of the state.
Whereas the Greeks had extolled the state as the surpreme end of man, St. Augustin
extolled above all the Church and the communion of the souls in God. According to
St. Augustin the civitas terrena or the kingdom of the impions or societas imporium
was an outgrowth of original sin. It is therefore perishable and will be replaced by the
Civitas Dei Civitas Coelestis. Civitas Dei means the communion of the faithful who
constitute the divine city.
The earthly state, has a purpose, and itself comes from the divine will and from nature
in so far as it has its purpose the maintainance of temporal peace among men; but it is
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always subordinate to the heavenly city, practically the church which has its purpose
the procurement of eternal peace.
Natural law was that law which the church administered.
St. Augustine held that "all property and the state were sinful institutions".
Ownership of property was not good.
The Medieval Scholarstic Period:5
A period characterised by a synthesis of the Aristotelian philosophy and Theology.

The min representative of the period was known as St. Thomas Aquinas (1225-1274).
He emerged during the period when the church had had a strong hand in the state.
The church then used to direct the affairs of the state including landed property. The
idea of the original sin had dissapeared. State law and the property were held to be
good.
St. Thomas Aquinas' greatest work is known as the Summa Theologica, a systematic
compedium of the philosophical knowledge of his time, a work of reason of which he
acquired the position of doctrinal leader of Catholicism. St Thomas Aquinas, gave
the most organic systematisation to christian thought. The foundations of the juridical
and political teaching of St. Thomas Aquinas is his division of law. He distinguished
three orders of laws:
(i) lex aeterna
(ii) lex naturalis
(iii) lex humana
(iv) lex Divina - Divine law
The lex aeterna - divine reason itself which governs the world, "ratio divinae
sapientioe", which none can know entirely itself.
The lex naturalis - directly knowable by men through reason.

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The lex humana - is an invention of man through which, moving from principles of
natural law, one proceeds to particular applications. Lex humana must be obeyed
even when it goes contrary to the common welfare, and even when it constitutes
damage.
St. Thomas Aquinas' idea of the State:
The state is a natural product, necessary for the satisfaction of human needs. It is an
image of the kingdom of God. The state is subordinate to the church which it must
always obey, helping to attain its ends. A state which is in opposition of the church
was ilegitimate. The Bishop as representative of divine power has a right to punish
sovereigns.
On man and the State:
Man, even though free, is considered, as a rule, subordinate to public power, whether
ecclesiastical or civil. He is no longer free, nor the centre and author of his laws. He
is simply subjected to them. Authority is absolute arbitrary but limited by the
precepts of the natural law.
In the Middle Ages there were two cardinal points on which the political life rested:
The papacy and the Empire and the symbolic terms used to describe the two are "the
two swords": Two powers set up over humanity by God: the temporal and the
spiritual. Though the two powers derived from the divimity only, the church was the
immediate interpreter of the Will of Heaven.
John of Salisbury's6 writings did indicate that the dominance of the church was being
challenged, due to certain developments which were taking place. Feudalism was
consolidating itself and class struggles over also sharpenning. Some people were
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challenging the automative interpretation of law. There were challengers of the two
swords doctrine i.e. the struggle between temporal and spiritual powers.
John of Paris (1302 ) held that all power is derived from God in civil society" thus
it did not arise from the people. But on the whole defended the autocracy of the King
by putting forward an argument for the division between spiritual and Secular power.
The main arguments of the day have been summarised by W. Friedman as follows:
The necessity for political and civil government is established as a good thing
in itself, independent of its sanction by the church, not inferior to the spiritual power.
It was in persuance of this line of thought and action that the unity of European
society held together by the supremancy of a Christian order and authority, gave way
to a dualism of the church and the state until, with the steadily gowing power of
modern nation state, law became increasingly an instrument of the state.
Together with this development, natural law was undermined.
Classical Period and Natural Law

14th - 16th Centuries AD:-7
1. A very complex period with diverse developments in the economy, science,

thought and the human institutions including the conception of state and law.
(a) The discovery of the Nature of the Solar system, universal navigation,
properties of light, the vacuum and gasses (Physics).
(b) Renaistance: revolution in art, painting, architecture, manners of life,

poetry, courtesy etc. This was because of the change in economic technique and
attitudes towards the world and such change affected the religious conception of the
physical world.
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(c) Scientifif revolution -

1453 the fall of Constantinople and the end of the last continuity of the
Greek culture (to about 1543) 1543 was marked by the Corpenicus revolution which
destroyed the old conception of the world, of the earth as the centre of the universe.
The old system was found faulty and a new system worked out. The
Renaissance followed by reformation - 1620 saw the development of the telescope,
the optical and dynamical discoveries of Galileo & 1687 the date of Newton's
Principia.
(d) Reformation and Protestantism -

Luther's rejection of the Papal Bull [Earlier was the establishment of
the English Church.]
(e) Advances in Navigation, Commerce,

etc (144-1540) Navigation as a key-hole to the utility of science.
(f) The Agricultural revolution -

Using manure to improve crops.
(5) Attack on Political Legal Theory:

"All souls had an equal value before God, there was no need for
mediation through the church.
(6) The Rise of Nation States/Churches:

Attack on the then existing political and legal order with the support of
princes and the emergence of the absolute monorchies supported by Machiavelli's
Theory of the Omnipotence of the State.
(7) In England:
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13thC. AD Innovation in production technique with consequent high

productivity. This led to intensification of the division of labour between the guilds
and the Florentine Textile Industries. The merchants and the emergency
manufacturies using money as a medium of exchange. In 1215 Magna Carta - as a
means of sharing power of the state between Barons/Merchants and the King. 1450-
1690 growth of capitalist relations of production corresponding with the revolutions.
The Renaissance 14th - 16thCs.
The inquiring spirit was being freed from excessive dogmatism. The period for the
rise of autonomy instead of the dominance of heteronomy. The fall of
Constantinople, saw the migration of learned Greeks to the west where they took with
them the measures of ancient wisdom. With such measures they were able to work
out a new humanism. The invention of printing permitted the rapid diffusion and
propaganda of ideas. The great discoveries of America opened up new roads to
human endeavour and promoted great transformation of the whole economy. The
scientifif concept of the Universes by Corpenicus contradicted the Ptolemaic in which
the earth was the centre of the Universe. The Corperican system led to the
abandonment of anthropomorphic beliefs. Corpenicus demonstrated that the earth
was not the fixed centre of the world, but it was an infinitesimal spek of dust, and
opened the way to a new concept of nature.
Changes in the development of pol tical theories corresponding with the change in
political conditions: The formation of great states (Nation states) of monarchies with
fixed territories independent from the hegemony of the Pope and the Empire, they had
become sovereign. In the theory of law there were bound to be changes. It was
necessary to determine the relationship between the individual and political society,
the governed and the governors in the state. The scholarstic theories lost much of
their political importance, there emerged the absolulist writters with a tendency to
assert rigidly the sovereignty of the state to the extent of loss of popular liberty. Law
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was no longer studied on the basis of theology but upon bases which were human and
rational.
Hugo Grotius who wrote De Jule Belli ac Pacis 1623-1625) is always considered as
the initiator of the new trend. There is evidence to show that there were his
predecessors who represented the characteristics of renaissance. These men were
Machiavelli and Bodin. The importance of their works lies in the methodology
followed.
Nicolo Machiavelli (1469 - 1527) - he was a statesman rather than a politician, the
first to treat political science in the spirit of the new times relying on historical and
psychological observation. He was a man of action. His works include 11 Principe
(1513). He raised the question as to the elements which make a government stable.
In answering the question he analysed the Roman's criteria of government. He
examined men as they are, with their passions and their vices. He followed the
method of induction and historical observation. Taking account of the real conditions
of his time. For him the end justifies the means. He was arguing the case for the
formation of the state in Italy as had been the case for England and France. The
Prince was the head of the state.
Jean Bodin (1530-1596) - a frenchman treated the organisation of the state according
to rational rather than dogmatic method. He relied on observation of facts and
proposed concrete, immediate ends. He was an absolutist. His work corresponded
with the consolidation of the monarchy in France.
Jean Bodin's Conception of Sovereignty:
.. In every state there must be surpreme power which is one and indivisible. There is
no state without sovereign power. The essential characteristics of sovereignty are
absoluteness and perpertuity. Sovereignty includes the right to make laws. He who
makes laws cannot be subject to them but remains superior of them. The sovereign
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therefore, is subject only to divine and natural laws. In the positive juridical order,
sovereignty is necessarily absolute. He who is invested with it is superior to the laws
and with regard to the sovereign one may have duties but no rights. Consequently,
there is no right to rebel against a tyrant, there is no right on the part of the citizens
against the state.
Freedom is sacrificed for the authority of the state. Sovereignty can reside either in a
monarch or in the people or in a body of nobles. He thus distinguished three forms of
government: monarchy, aristocracy and democracy.
Hugo Grotius (1583-1645) a Hollander, author of the work De Jure Belli as Pacis in
three books which was published in 1625 and was concerned with political questions
and his inquiry made use of the general principles and attempted to synthesize them.
He is considered the founder of modern Philosophy of Law (though this is somehow
doubted). He was more inclined to international law and he aimed at determining the
juridical relationships existing between states whether in war or in peace.
Grotius' method consisted in an inquiry from particular questions of international law

to the general philosophical principles. He was not only a jurist but also a
philosopher.
Grotius noted that a system of international law to be universally acceptable, had to

be founded on bases different from those of juridical systems of the individual states
and from those peculiar to the various religious beliefs. He made this observation
because in the preceeding age, in the whole of the Middle Ages, above the individual
state were two great authorities, the Church and the Empire. These two had regulated
internal political relationships. But those two authorities had to some extent lost their
political importance. The spread of a world wide Empire or Church as a universal
political power was gone. It was, therefore, necessary to find other bases for
determining the juridical relationships between the autonomous states which were
limited in territory but were obsolute sovereign within their own confines and were
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juridially equal as between themselves. Grotius accepted (using the Aristotelian

Scheme) the fundamental theory that man is a social being by nature and destined to a
certain form of society, the political form.
Law is something which is presented by reason, not by revelation, something adapted

to make possible a living together in society. It is that which right reason
demonstrates to be in conformity with the social nature of man. It follows from this
that law has a substantial independence from Theology. Natural law according to
Grotius exists even if there were no God, or if he took no care of human affairs.
Natural law is known to man through two ways one a priori and the other a posteriori.
Natural law is known a priori when the necessary conformity or lack of conformity of
a certain thing to rational and social nature is found. It is known a posteriori when it
is perceived that something is considered just by all more civilized people. Grotius
admitted that the second method is imperfect, because it would require all knowledge
of the positive law of all peoples.
Natural law is supposed to be valid of itself though it is violated or is not known.

The conditions of sociability of man which brings about law, is the inviolability of
pacts: If we admit that it is licit to fail to keep agreements, society is not possible.
On the basis of this, Grotius maintained that governments were legitimate and
international treaties are inviolable.
Political society or organisation was set up virtue of (contract) a pact. Earlier writers
thought the contract is an idea, an hypothesis, a regulatory principle but not a
historical fact. (This is in contradistinction to what other writers say). Grotius,
maintained that the social pact or contract took lace, and it represented a historical
fact. Of course there was no single social contract but many and of different kinds as
there are kinds of political constitutions in existence. Every political constitution
proceeded with a corresponding contract. This is what makes all institutions, all
governments equally legitimate.
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For Grotius the social contract was an external act, a manifestation which follows
from an opinion and from the conditions of the moment, not from the nature of man
itself. In man only the impulse of sociableness is derived from nature, but the form of
society must take is abandoned to mere whim. The idea of social contract set forward
by Grotius only shows that in people there is a perpertual obligation of obedience to
the sovereign.
Criticism on Grotius' Contract Theory:
1. Society and the state did not originate in a contract but natural facts produced
independently of reflection and of deliberate choice.
2. The consensual character, comes gradually to the fore as the life of society
progresses, as the exercise and the juridical recognition of the autonomy of the
individual replace gradually the primitive impersonal solidarity of the groups.
3. Grotius' theory is much more fruitful.
Revolutionary Period of Natural Law

NATURAL LAW AND SOCIAL CONTRACT THEORY8
1. The idea that the citizen in a given state is tied to the government authority
because in common with other citizens, has made a contract with a person or body of
persons, under which that person or body of persons receive authority in return for the
protection and services of declaring and enforcing a system of legal rules.
2. The idea that the citizen and his fellows are bound by natural law to respect
and perform the terms of contract.
Question:
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How was it possible for men to burgain collectively with the person or body of
persons to be vested with governing authority?
A variety of views have been expressed as to the origin of contract which manifests
itself in different states:
(a) The contract of society (the pact ed association (Rousseau) or the

Gesellschaftsvertrag (Gierke) or the social compact proper.
(b) The contract of the government or the pacte de government or the

Herruschaftsvertrag or the social contract loosely so called.
The main contention is that under the contract of society all persons in a given area
which is defined agree with one another to form a collective body of the nature of a
societas or partnership. It results from an act of simple consent expressing itself in a
form of partnership or societas (i.e. the colonii, the early towns).
Under the contract of the government or social contract loosely so-called, this
societas, or partnership has been formed agrees with a person or body of persons,
supposed somehow to be separate from it, to institute a potestas and confer it upon
that person or body of persons certain conditions. This results into an act similar to a
form of agency or what the Roman Lawyers called mandatum i.e. Magua Carta 1215.
These developments correspond with the formation of the nation state after
Rennaissance in which certain princes had to come to terms with feudal lords,
manufactories and traiding centres out of which the idea of the modern state emerged.
Such an arrangement led to a political contract. The arrangements leading towards a
political contract had been preceeded by:
(i) the bond of Kinship which united or was supposed to unite a people or
group of people;
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(ii) military force or diplomacy which brought people of different

background together into a Union (Greek Civilization, Hellenic Empire, Roman
Empire, Hegemony of the Church over the rest of Europe before Renassance).
(iii) the bond of neighbourhood joining the residents of some different or common
area in a system of economic and social relations which go beyond kinship or
employment of force or policy (Merchants/Traders).
(iv) Mutual concession, mutual tolerations, mutual discussion and the

general give and take, dependence on and constituted by a memorandum of
Association or a set of articles of association or what is known as the constitution. A
constitution states the contractual terms on which the association is made and
underwhich it henceforth acts.
Thus with the expansion of commerce, the middle class seized a chance and waged a
war for individual emancipation against political absolutism of the period and
attempted to justify their existence and the limited authority of the state over the
people.
Some writers trace the origins of the social contract theory from Plato's Republic and
the portion which embodies this theory states:
When men act injustly towards one another, and thus experience both the
doing and the suffering, those amongst them who are unable to escape the other come
to this opinion: that it is more profitable that they should mutually agree neither to
inflict injustice or to suffer it. Hence men began to establish laws and covenants with
each other, and they called that which law prescribed lawful and just.
Other writers say that, the view that legal authority comes from the people and the
sovereign will of the rulers, can be found in the writings of Medieval writers such as
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John of Salisbury, John of Paris and Thomas Aquinas. But the use of the term social
contract as a definite concept for political and legal debate is traceable according to
W. Friedman, from the Italian Marsilius of Pachia (1270-1343) who like his
contemporary an English man called William of Ocan, was directed against the
supremacy of the church.
Marsilius emphasized the authority of the Price, at the same time developed the idea
that people were the source of all political power and the government was a mandate
of the people and from their consent. The Prince was under the obligation to the
people to observe the law and can be punished if her violated it.
Whatever the differences are in the theories there are however common elements:
1. The source of political power are the people, suggesting that authority does
not come from above. The social contract theory is a forerunner of the democratic
theory.
2. Individual or atomistic theory of society whereby the state is seen as a legal

creation of individual will.
The Principle exponents of the Social Contract theory in political and legal thinking:
(i) Hugo Grotius (1583-1645)

(ii) Thomas Hobbes (1588-1645)
(iii) John Locke (1632-1704)
(iv) J.J. Rousseau (1712-1888)
We have already dealt with Hugo Grotius, let us now look at Thomas Hobbes and this
treatment of social contract.
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Thomas Hobbes (1588-1679_ an Englishman, one of the most important writers on

philosophy of law. His principal works are: De Cive (1642) and Leviathan (1651).
Hobbes lived in days of troubles inEngland (Internal struggles).
Hobbes lived between the old and new order. His philosophical system reveals the
scales of conflicting demands between natural law and governmental powers. Hobbes
believed that man was selfish, malicious, brutal and aggressive. Everyman was a
Wolf to another (HOMO HOMINI LUPUS). He drew from the competition of the
English people which had resulted into civil wars, such wars could be amieliorated by
having a central government. He believed that all men were equal in the state of
nature i.e. possessed natural rights to preserve his life, with all power against the
aggression of the others. Such conditions gave rise to the state in which men enter
into a compact mutually amongst themselves in which everyone agrees to transfer all
his power and strength upon one man, or upon an assembly of men, on condition that
everybody else does the same.
The sovereign power thus constituted "Leviathan" or the "mortal God" who uses
combined power and strength of the citizen with the sole aim of peace, safety and
convenience for all. The sovereign thus created is omnipotent and not subject to any
legal restraint if he has to be effective.
His instrument for imposing his will on the people are the civil laws. These laws are
distinguished from the law of nature. The civil laws are addressed to the subjects.
Such laws represent what the commonwealth has commanded either by word or a
sign of will. Civil laws determine what is right or wrong. Civil laws cannot be unjust
because the people having transferred their powers to the sovereign, become the
authors of all the laws, and that being the case no man can be unjust to himself.
Hobbes' attitude to the social compact reflected the struggles of the various classes in
England which had started with Magna Carta in 1215, followed by the revolution.
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1620-1640, the rule of the bourgeoisie under the leadership of Cromwell 1640-1660
and the civil war in England 1660-1688/89 which resulted in the restoration of the
monarchy. The idea of contract reflects the types of agreements entered into by
various forces.
John Locke 1632-1704: An English-man, personifies in an outstanding way the

democratic and liberal tendency as opposed to Hobbes' absolutistic ones. Hobbes
used the Hypothesis of the state of nature and social contract to establish the
absolutism of the prince. Locke on the other hand used the same hypothesis of the
state of nature to limit sovereign power. In his Two Treatises on Government (1690),
Locke summed up the English Revolution. According to John Locke, man is
naturally social and there does not exist a state of nature without society. For him the
state of nature is society. In the state of nature man has already certain rights, for
example, the right to personal liberty, the right to work, and consequently the right to
property which is based on work.
That which is lacking is an authority which can guarantee these rights. To assure
themselves of such a guarantee, to organise politically, individuals must renounce a
portion of their natural rights, must consent to certain limitations, and this is done by
contract. He who is invested thus with public authority cannot use it arbitrarity
because the authority itself has been confided to him for the protection of the rights of
the individuals. If he abuses it he violates the contract and the people regain impso
facto their original sovereignty. To conclude, the bond of obeidience of the subjects
is dependent upon the observance of the social contract on the part of those who
govern.
For John Locke, the state is a reaffirmation of natural rights (within limits). The
individuals sacrifice only so much rights and liberty as will make possible the
formation of the state as a igher organ of protection. Individual's submission to public
power is not uncondititional. Its conditions are determined by those fundamental
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exigencies to satisfy which every individual has by hypothesis, entered into the
regime of political society.
A True Constitutional System
Locke construed a true constitutional system. He traced the theory of separation of

powers which was later elaborated upon by Montesquieu. According to Locke the
rights of the people constitute a unit and those of the citizens as individuals. He was
the greatest precursor of Rousseau who declared expressly that Locke had traced the
social contract "according to his own principles". Locke was an opponent of religious
intolerance which he deduced from the concept of separation between the church and
the state (also include pp. 76-78).
John Locke
The Natural Liberty of man is to be free from any Superior Power on Earth, and not to
be under the Will or Legislative Authority of Man, but to have only the Law of
Nature for his Rule. The Liberty of Man, in society is to be under no other
Legislative Power, but that established, by consent, in the common-wealth, nor under
the Dominion of any Will, or Restraint of any Law, but what the Legislative shall
enact, according to the Trust put in it. Freedom then is not what Sir. R.F. Tells us,
O.A. 55[224]. A liberty for everyone to do what he lists, to live as he pleases, and not
to be tyed by any Laws: But Freedom of Men under Government, is, to have a
standing Rule to live by, common to every one, of that society, and made by the
Legislative power erected in it; A Liberty to follow my own will in all things, where
the Rule prescribes not, and not to be subject to the inconstant, uncertain, unknown,
Arbitrary Will of another man. As Freedom of Nature is to be under no other restraint
but the Law of Nature.
23. This Freedom from Absolute, Arbitrary Power, is so necessary to, and closely
joyned with a Man's Preservation, that he cannot part with it, but by what forfeits his
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Preservation and Life together. For man; not having the Power of his own Life, can
not, by compact, or his own consent, enslave himself to anyone, nor put himself under
the Absolute, Arbitrary, Power of Another, to take away his life, when he pleases. No
body can give more Power than he has himself; and he that cannot take away his own
Life, cannot give another power over it. Indeed having by his fault, forfeited is our
Life, by some Act that deserves. Death; he to whom he has forfeited it, may (when he
has him in his power) delay to take it; and make use of him to his own service, and he
does him no injury by it. For, whenever he finds the hardship of his slavery outweigh
the value of his Life, this is his Power, by resisting the Will of his Master, to draw
himself the Death he desires.
24. For this is the perfect condition of slavery, which is nothing else, but the state of
War continued, between a lawful conqueror, and a captive. For, if once compact
enter between them and make an agreement for a hinted power on the one side, and
obedience on the other, the state of War and slavery ceases, as long as the compact
endures. For as has been said, no man can, by agreement pass over his own life.
Charles de Montesquieu (1689-1755)
a French philosopher, wrote the book called De l'esprit des lois (Spirit of Laws) in
1748 - Montesquieu proceeded from the concept that laws are "necessary
relationships deriving from the nature of things." He did not treat these general
relationships but examined particular laws and institutions and he tried to give
explanations for them on the basis of particular facts and circumstances. He studied
the juridical institutes of various peoples as historical products, analysed customs,
laws and political and social arrangements with the aim of pointing out the reasons
and motives which determined them.
He reviewed various fields of legislation among diverse people, attached importance

to natural factors, especially climate, for the genesis of law. He sought to discover the
natural formation law, to explain how it arises in social life and how it must adapt
itself to the conditions of the milieu.
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Montesquieu distinguished three forms of government: Republic, Monarchy,

Despotism. Despotism was categorised as a degenerate form.
The republic presupposes the devotion of the citizens to the common weal that is to
say virtue. Monarchy had the foundation of force, the love of distinction and
privileges (honour).
The greatest contribution of Montesquieu found in the Spirit of Laws concerns the
theory of the Division of Powers (Separation of Powers) in which using the English
Model (constitution) Montesquieu pointed out that England had a regime of political
liberty, which was an ideal of all nations, especially France, which was then at the
dawn of the Revolution. Montesquieu raised the following important questions:
(i) On what does liberty depend?

(ii) What were the conditions and the factors which made it possible?
Montesquieu thought he had discovered the secret in the principle of the division of
powers. He therefore stated:
"In order that power may not be liable to be abused, it is necessary that power
check power". (Emphasis supplied).
It is necessary that the powers of the state be organised in such a way as to check each
other, that there be a system of reciprocal checks, the system which was later called of
balance and counterbalance. He consequently distinguished three powers of the state:
legislative, executive and judicial and he maintained that these powers must be
divided, independent one from the other, entrusted to different persons precisely as
was done in the English Constitution, which was considered as a model.
Montesquieu has been called the father of constitutionalism.
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Jean-Jacques Rousseau 1712-1778 - made important developments in relation to the

social contract theory. Rousseau was a Frenchman, philosopher and writer. His
social contract theory represented the developments of the 18th century Europe. He is
presented by Baker as a JANUS FACED FIGURE in the history of Natural Law. In
his writings there is a powerful longing for the state of nature that was lost.
Rousseaus' legal philosophy is found in his works the Discours sur l'origine et les
fondements de l'ine'galite parmi les hommes (1753) and the Contract Social (1762)
the former was meant to be a history of human race and developes a thesis that:
Men were originally free and equal, living with extreme simplicity in the
forests, according to the dictates of nature alone, in the so-called "state of nature". In
that first epoch, man was not yet devastated by the degeneration of civilization He
was good, because man is born good, like everything which comes from nature, and
was happy. How did it happen that this stage of happiness was lost? Rousseau
proceeds by hypothesis. He seeks to explain the origin of civilization, which for him
is a distortion, a corruption of the state of nature. Some men who were stronger
imposed upon others.
"He who first closed off a field and said "this is mine" was the first
creator of human unhappiness".
To private property was joined political domination, and thus, by reason of
certain passions gaining the ascendancy, an artificial regime of inequalities disposed
men in a relationship of reciprocal dependency, contrary to the natural principles of
their being.
To conclude, a deep antimony developed between the native constitution of
man and his social conditions.
From Rousseaus' Social Contract we find the development of his theme introduced by
his first book. In the social contract Rousseau sought to provide the solution to the
practical problems. He recognised that a pure and simple return to the state of nature,
after the state of civilization was impossible, "just as it not given to an old man to
return to his youth". Political society must be accepted as an irrevocable fact.
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Rousseau did not seek for a return to the primitive state of nature but a substitute.
What was important was to find a method of restoring man who had become
civilized, the enjoyment of natural rights, of developing the political constitution
according thereto. He thus turned to the idea of the social contract. For Rousseau the
social contract, had a precise and determinate content. It must offer a solution to that
problem. According to Rousseau the social contract represents, the ideal form of
association, in which the fact of belonging to a political body does not destroy the
liberty of the individuals. The content of the contract is determined opinion. It meant
the political consentration of the rights of liberty and equality which were proper to
man in the state of nature. Social contract is a postulate of reason, a truth not
historical, but normative or regulatory.
The natural right, liberty and equality constituted the point of departure and the basis
of the political edifice. Only for the actuation of that principle does a state have
reason to exist.
The social contract represents the dialectical procedure whereby individual rights
converge in the state, and emanate again from it reinforced... all men remain free and
equal as they were in the state of nature, while their rights acquire a tutelary
guarantee, which was lacking in that state. The individuals are subject only to the
general will, which they themselves concur in forming.
Law for Rousseau is the expression of the general Will.
Note:
The ideas of the aforesaid thinkers, and especially those of Rousseau, in whom the
Natural Law School reached its highest point, assumed a positive juridical form in the
Declaration of the Rights of Man and Citizen in France in 1789 and was used as a
Preamble to the French Constitution of 1791 and later with some changes, to the other
constitutions which followed that one in France. In part the principles of the
Declaration were also accepted in the Italian Statute of 1848.
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But as noted earlier, the idea of a Declaration of Rights was not new. There had
already been precedents of that kind of in England especially in the Bill of Rights of
1688 in which the bases of constitutional guarantees against the power of the crown
were laid down. Subsequently the English Colonies - North America Bill of Rights
appeared whereby, in 1774 and the following years these colonies vindicated their
rights against the fatherland to become independent.
The United States Declaration of Independence stated as follows:

We hold these truths to be self-evident, that all men are created equal, that
they are endowed by their creator with certain inalienable Rights, that among these
are life, Liberty and the pursuit of Happiness ...
The United States Constitution provides inter alia:

We the People of the United States, in order to form a more perfect Union,
establish justice, insure domestic tranqiulity, provide for the common defence,
promote the general welfare, and secure the Blessings of Liberty to ourselves and our
Posterity, do ordain and establish this Constitution for the United States of America...
Article 1, Section 2.
... Representatives and direct taxes shall be apportioned among the several
states which may be included within this Union, according to their respective
Numbers which shall be determined by adding the whole numbers of free persons
including those bound to service for a term of years, and excluding Indians not taxed,
three fifth of all other persons...
_ Notes
1. Lloyd & Freeman, Introduction to Jurisprudence 5th Edn. Ch. 3.
2. Sophocles, Theban Plays.

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3. Aristotle: Ethics, 1953, pp. 139-166.
4. Del Vecchio, Philosophy of Law, Washington 1953

pp. 45.49.
5. Del Vecchio, Philosophy of Law ........

pp. 49-52. Lloyd & Freeman 5th Edn. pp. 109-111.
6. B. Russell, A History of Western Philosophy, London 1979, pp. 432-433;

P.B. Mihyo, "The Socio-Econo ic Basis of Natural Law" (Mimeo); Walter Ulman, A
History of Political Thought in the Middle Ages, ...........
1965, pp. 115A, 200-206.
7. Lloyd and Freeman 5th Edn. pp. 111-123; Del Vecchio, Philosophy of Law,
pp. 58-79; J.D. Bernal, The Extension of Man, Paladin, 1972.
8. Del Vecchio, Philosophy of Law; pp. 80-102; Lloyd & Freeman 5th Edn.
pp. 123-127.
9. Friedman Legal Theory

Denis Lloyd, The Idea of Law.
_ Natural Law and the Abolition of Slavery
England: Somerset v Stewart
1. C.E. Carrington, The British Overseas Ch. IV, p. 220 et seq.
2. Samwel Smiles, Self Help (Published 1859

Sphere Library edition p. 167.
3. Holdsworth, Some Makers of English Law,

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p. 160 "Lord Mansfield".
4. Somerset against Stewart, May 14, 1772 Lofft

1.98 ER 499.
5. Erick Williams, Capitalism and Slavery

(Dr. Williams - The Prime Minister of Trimidad & Tobago, Wrote this work
as his Ph.D. at Oxford).
_ CHAPTER IV
UTILITARIANISM AND ANALYTICAL POSITIVISM
- Ch. 4 Loyd/Freeman 5th Ed. pp. 246-319

- Friedman, Legal Theory
1. Utilitarianism and the Rise of Bourgeois rule;

2. Analytical Positivism
3. The Crisis of Positivistic Theory

(a) H.L.A. Hart's Concept of Law and A Natural Law Answer by Fuller.
(b) Contemporary Debate - Dworkin, Summers, Raz, Lyons, Finnis,

MacCo ic Honore etc.
4. General critique
Consolidation of Bourgeois Power

A. The Collapse of feudal Mode of Production
- Collapse of feudal mode 14th - late 18th Cs.

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- Major events which led to the Bourgeors ascent to power are (i)
French/American Revolutions (ii) the Industrial revolution.
- The Industrial Bourgeoisie came to power and there followed a
revolution in the following fields:
(a) Production:
- Scientific knowledge increased ; along to the doscpveru of the
madrine and consequently industrial production.
- Mechanical science exhibited the perfection of bourgeois

knowledge.
(b) Philosophy
- Science had exhibited that the laws of nature sometimes
operate in such a way that they are the opposite of what man sees. For example,
Corpenicus showed that the apparent movement of the sun is actually the movement
of the earth.
Harvey showed that blood is not static but circulates around the body.
Newton that there is gravity pulls down things etc.
Science was shattering the apparent World
- Philosophy underwent changes - in the revolutionary period there emerged a

conflict between the RATIONALISM and EMPIRICISM based on innate ideas and
the other on experience. Kant United the two but held that we can only know the
appearances of things but not the final causes. Thus knowledge was only superficial.
When applied to man one can only know what society is by describing it (The
noumenally) but then if one wants to know the motive force of society which is based
on morals i.e. the inner world (Noumenal) then it becomes hard. This inner world
provides the CATEGORICAL IMPERATIVE which gives obligatory duties and
rights to man. It is the General Will as found within man himself. It provides the
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"OUGHTS" for society. Law is only dealing with "IS". The best law will follow the
categorical imperative ("Do to others that which you would like them to do to
yourself").
Thus Philosophically Kant was telling his fellow bourgeois philosophers that the
knowledge of the causes of things was impossible, consequently the role of science
was only to describe successive appearances and classifying them, it was to deal with
HOW and not with WHY.
- From this failure of philosophy there arose a new philosophy of science known as
POSITIVISM led by Auguste Cente (1798-1857). Auguste Cente wrote
(i) Caused of Positive Philosophy 1830-1842 based on Lectures 1826-

1829.
(ii) System of Positive Policy 1851-1854.

(iii) The Catechism of Positivism 1852.
He maintained that man's development was characterised by three phases
(i) Theological State - man examined phenomenon in relation to

supernational causes.
(ii) Metaphysical Stage - recourse was made to ultimate principles and

ideas as existing beneath the idea of things.
(iii) Positive Stage - man began to reject hypothetical constructions in

philosophy, history and science. Resort made to empirical observations.
The role of positivism was not to find final causes but only to describe the world as it
finds it.
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Natural Laws could be applied to society through sociology. Any attempt to give the
causes of things was useless and could be left to Theology and Philosophy not to the
Science of Positivism.
Problems in the Sphere of Law
This was much more manifested in England where:

(i) The Merchants wanted certainty in the conduct of their affairs.
The individuals who were to meet in the market could only operate on the bases of
contractual relationships and not otherwise, it meant that it was important the rules of
the game be known. The Law of Merchants was hardly certain due to Common Law.
(ii) The Common Law based on precedents system was slow and
uncertain. Bentham later compared it to dog law. It could hardly fit for changing
circumstnces.
(iii) Procedural law was long and costly, in favour of priviledged classes,
the commercial classes wanted a quick determination of suits.
(iv) Alienation of property was still limited by law e.g. landed

property.
(v) Criminal law was old and antiquated. In 1800 there were 160
capital offences and by 1850 there were only? Consequently there was a need for
Reform. Reform was earlier led by the UTILITARIANS and later confirmed by
POSITIVISM.
1. JEREMY BENTHAM 1748-1832

Wrote:
1. A Fragment on Government 1776
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2. Principals of Morals and Legislation 1789.

According to Dicey, A.V., Bentham:
(i) laid down principles on which reform should be based (ii)

Laid down the method by which legislation could be used for reform.
Bentham showed that legislation was:
(i) A Science and this was the basis of the art of government. This
scientific legislation was the subject matter of jurisprudence. Jurisprudence could
either be censorial or expositorial. Censorial jurisprudence dealt with the art of
legislation which dealt with ought to be. Expositorial jurisprudence dealt with
Positive Law i.e. what is the Law.
Bentham mainly dealt with Consorial Jurisprudence.
(ii) The principle which was to guide Law-making was not Natural
Law but UTILITY i.e. the greatest happiness of the greatest number (generality of
law is derived from this proposition).
(iii) Every individual was the best judge of himself and therefore
Legislation must aim at making man frees - i.e. he defended Leisses Faire dogma.
(iv) The method of Legal Reform cannot be judicial but

Parliamentary. i.e. there must be legislative reform and the role of the judge is only to
apply the law and not interprete it. This was in accordance with Montesquiue's
doctrine of separation of powers.
UTILITARIANISM
A philosophical movement which arose during and immediately after the bourgeoisie
revolution.
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The Dictionary of Philosophy says the following on Utilitarianism.

"a bourgeois ethical theory which considers the usefulness of an action as the
criteria of its morality. It was founded by Jeremy Bentham who formulated its basic
principle as the greatest happiness for the greatest number, through the satisfaction of
individual interests. The morality of action can be mathematically calculated as a
balance between pleasure and suffering from it.
Jeremy Bentham was the founder of the movement. He wrote two major works
(i) A Fragment on Government in 1776 and
(ii) Introduction to the Principles of Morals and Legislation 1789
Bentham was basically opposed to the antiquatted social system of feudalism in

England. He advocated for free play of market forces under the theoretical frame that
individuals were the source of society's progress.
He propounded the principle of utility in the following works:

(Introduction to Principles of Morals and Legislation p. 2):
Nature has placed man under the empire of pleasure and pain. We owe them
all our ideas, we refer to them all our judgements, and all the determination of our
life. He who pretends to withdraw himself from this subjection knows not what he
says. His only object is to seek pleasure and to shown pain... These eternal and
irresistable sentiments ought to be the great study of the moralist and the legislator.
The principle of utility subjects everything to these two motives."
Benthan argued that under the said principle it was possible to:
(a) lay down principles or standards under which reform could be based,
and
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(b) to formulate a method by which legislation could be the basis of that

reform.
Bentham defined his choice of legislation as a tool of initiating change. He made the
following proposals:
Legislation could be an exact science than higher law which had been based on
custom and judge made law which lacked symmetry. He argued that law must be
based on a system with definite principles of interpretation and which were certain. A
system of codification could definetely assure the scientific determination of law.
It was for men to learn to use legislation to promote the greatest pleasure for the
greatest number. It was important to study Censorial Jurisprudence which is the study
of the art of legislation and the reasons for the justification of law. According to
Bentham Expositorial jurisprudence was (is) simply the study of the law as it is
By its very nature the study of law is general. A legislature is capable of enacting
general norms or laws which will cover every class of persons in society.
Just laws will be enacted only if such a legislature takes into account considerations
of the principles of utility and not otherwise. Once the principle of utility is applied
one cannot question the justness or unjustiness of the principle.
The Principle of Utility Applied to Law:

Anything which tends to augument the happiness of the community is utilitarian.
Any action conformable to utility ought to be done, that is, it is right to do it and
wrong not to do it.
Individual action must conform to the community's needs for only then can man
realise his greatest happiness. If he does not conform to the greatest happiness
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SANCTIONS must be applied. If he conforms he must get REWARDS. The

punishments and rewards can be found in four domains:
(i) The popular and moral sanctions - these are based on the
approval or disapproval of others in the community.
(ii) Legal or Political Sanctions - based on the political power of

the government.
(iii) Religious Sanctions - which come from the divine agency.
(iv) Physical or Natural Sanctions - which occur accidentally

independent of human agency - for instance failure to follow the physical laws.
These were for Benthan the basis of the Science of Legislation. They could adjust
pleasure and pain.
Bentham's Conception of Sovereignty and Source of Law:
In order to apply Utility to law Bentham emphasized we must begin by defining what
is meant by a Political Society. In his Fragment on Government Bentham declared:
When a number of persons (whom we may style subjects) are supposed to be

in the habit of paying obedience to a person or an assemblage of persons of a known
or ascertain description (whom we may call governor or governors) such persons
altogether are said to be in a state of political society [Fragment on Government, Ch.
1].
Thus for Bentham the government consists in:

Page 70 of 163
an assemblage of the persons by whom the several operations (ie. of

government) came to be performed and among these persons there commonly is some
one person, or body of persons whose duty is to assign and distribute to the rest their
several departments to determine the conduct to be performed by each in the
performance of their particular set of operations that belongs to him, and even upon
occasion to exercise his function in his stead. That body of persons or person is what
Bentham termed as the sovereign.
To Bentham the sovereign's Will was absolute in that he cannot be commanded

(uncommanded commander). The sovereign expressed his will through commands to
the governed. The command is what is LAW for there can not be an act of the
sovereign which is either a command of a prohibition of law.
Bentham defined law as:
an assemblage of signs declerative of a volition concerned 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.
Betham's definition of law was wider than this. For his law can be defined according
to:
(i) Its Source: The person or persons of whose Will it is the

expression thereof. It is the sovereign's Will in a state;
(ii) Its Subjects, persons or things to which it may apply;
(iii) Its Objects, the acts as characterised by the circumstances to which it

may apply;
Page 71 of 163
(iv) Its extent, the generality of its application;
(v) Its Aspects, the various manners in which that Will may apply
itself to the acts and circumstances which are its objects.
(vi) Its force, the motives it relies on for enabling it to produce the
effect it aims at and the laws which it relies on for bringing such motives into play
known as CORRABORATIVE APPENDAGES.
(vii) Its Expression, the nature of the signs by which the Will of the
sovereign may be known for example, the statutes, cases, decrees, edicts, ordinances
etc.
(viii) Its Remmedial Appendages, other laws than the corraborative

appendages, for example those which are designed to alleviate the law.
This wider definition anticipated Austin's formulation on Law based on, a political
society sovereign, subjects, commands and laws which are found in analytical
jurisprudence.
The jurisprudence of Bentham was basically Censorial Jurisprudence. It dealt with

the Science of Legislation, the "ought" Bentham was definite that the sovereign was
the Source of Law. Other sources of laws he termed illegal mandate, the act of
issuing such mandate was illegal and an offence.
Methods through which the sovereign issued Law:

(i) Conception: When the law is given by the sovereign himself.
(ii) Tacit Approval, judicial orders executive and administrative or

military orders.
Page 72 of 163
(iii) Adoption, the order of a father to children; husband to wife. These are
also termed as Quasi commands.
Bentham divided Laws as follows:

(i) Laws addressed to subjects - Laws in Populum (subditos).
(ii) Laws of transcendental nature addressed to the

sovereign/foreign:
- Laws in Principiem: These are of two kinds
(a) Pacta regalia - those which affect the sovereign
himself
(b) Recommendatory Mandates

These refer to the future sovereign (Constitution).
Whether or not the Sovereign Could be Controlled by Laws?
In you study of Natural Law principles during the classical and Revolutionary any
period you noted that the basic question was why should the sovereign pressume laws
addressed to himself? The sovereign was absolute in the eyes of Hobbess and Hume.
But could be controlled in the eyes of Locke and Rousseau. In the former
philosophers it was impossible to control the soveregn (he was an uncommanded
commander) in the latter the objectives of the institution of sovereignty "Life, liberty,
property and persuit of happiness" were not only controls but also a means for the
community to enforce laws controlling the sovereign. Thus in the eyes of Bentham, it
was absolutely necessary to have laws controlling the sovereign authority for the
persuit of maximum happiness. The sovereign does not exist alone. The scales of
Pains and pleasure would be used to determine which laws to control the sovereign.
Page 73 of 163
Bentham maintained that there were FOUR SANCTIONS to see to it that the
sovereign did abide by the laws:
- Religious
- Political
- Popular
- Physical
(1) The physical and political sanctions cannot control the sovereign in reality. Only
the Religious and popular sanction. These could compel the sovereign to obey his
own law. In case he failed to do so he could be forced by a FOREIGN STATE to
observe his own laws because of the understanding or contracts or treaties existing
between the two sovereign states. The sovereign's guarantor is another sovereign
authority. [When we deal with Hans Kelsen's Pure Theory of Law - the notion
Recognition under revolutionary situations in international law becomes very
important].
THE FORCE BEHIND SANCTIONS
To ensure the administration of the Greatest Happiness for the greatest number.
Bentham pointed out that the sovereign to increase pleasure would use rewards i.e.
the ALLURING MOTIVES e.g. if you don't do a.b.c then you will be given x.y.z. If
they are in the form of a pain then that sanction is called a coercive motive or
punishment.
The sovereign will rely on how he can enforce the two motives. He would do so
mainly by using the POLITICAL or LEGAL SANCTION.
The sovereign has to create a political machinery. To show whether he would give
rewards for certain acts or punish some of them he must do so by way of NOTICE.
This can be given by himself or by a judge or the legislature commanding a judge to
carry out certain measures.
Page 74 of 163
The sovereign has to use both Rewards and Punishments in enforcing his commands.
But though rewards are the best method, he cannot use them as a long term method
since resources to give rewards to people are limited. Therefore it is better to use
Pain or Punishment as the force behind commands. Why?
(a) It is basier to administer pain to another than pleasure.
(b) The power of administering pleasure depends on the law in general

than in particular.
(c) The scale of pleasure is limited while the scale of pain is unlimited.
(d) The sources of pleasure are few while those of pain are inexhaustable.
(e) Any law which administers pleasures is bound to administer pain to

others.
(f) Rewards are insufficient when applied to acts of negative nature.
Therefore the solution is obvious that in any commission of crime a person must be
forced by the sovereign's commands through COERCIVE METHODS. Bentham
came out with a rather centradictory proposal by saying that one can assure pleasure
to the greatest number by using COERCION. Since one cannot use rewards, it is
obvious those who have resources are already protected.
The FUNCTION OF LAW
Can be covered in four objetives

(i) To provide subsistence
(ii) To aim at abundance
Page 75 of 163
(iii) To encourage equality

(iv) To maintain security
The fourth category of the function of law gives Bentham's analysis a lopsided feature
as a reformer. It is impossible to assure equality while one defends property already
acquired. Of course to Bentham this was not a contradiction, since in a bourgeois
conception of society man exists as a DUAL being: Man exists as a citizen with a
community rights assured to exist e.g. equality before the law. From this one gets the
law of equality that prohibited both the rich and the poor equally not to sleep in diches
and beg in streets. Man also exists as a Private Individual competing and inequality
assumed to be obvious.
This DUALITY underlies the distinction between Public and Private law. In
Bentham's view the law was to change and overcome the inadequacies of the then
existing common law - based on Precedents which were slow and uncertain.
Lecture III
Through the Principle of Utility reform could be initiated and the only method which
could surpass the slow legal system was CODIFICATION. The code had to be very
consistent, simple and rational. It had to encompass all possible situations, it would
need no school to explain it (here Bentham was wrong!) (Principles of Morals and
Legislation Vol. III p. 209).
There was no need for legal interpretation the judge would only apply the law as it is
because the code would be simple direct and school children would have to memorise
as catechism. Through the code nations would be brought together by having similar
laws (Experience of Treaties in International Law). This Bentham projected for a
Universal legislation. (In the field of International Law/Trade - Treaty Practice).
Bentham's idea of simplicity of a code - was aimed at the gang of LAWYERS who
had made Medieval law a complex and unnecessary system. In denying that laws
Page 76 of 163
could be interpreted by Courts he was taking away the supreme role judges had
played in the evolution of the common law and Equity. The Formal Style was to
superced the Grand Style in Stare Decisis.
Bentham's suggested reforms in

(i) the Law of Evidence - to do away with the hearsay rule by
accepting any evidence since the target was to catch criminals. In admissibility
excluded vital sources of information at times;
(ii) the Penal Law - crimes were to be reduced to acts which can be
regained by compensation.
Bentham in this respect was influenced by Montesquieu and Beccarria. But Bentham
was the first legal scholar to treat this subject separately. He emphasised the object of
punishment to be to reform the criminal and therefore supported preventive
punishment and not "punishing" justice. He advocated for a Penal Code where all
offences would be classified in terms of genus and species. Punishment for all such
offences would be provided.
He showed that criminal responsibility was not similar in that for the same offence.
Circumstances and intentions might be different.
He opposed Capital Punishment as being inhuman.

He advocated for the strengthening of the POLICE not only for apprehending
criminals but for preventing crime.
He also encouraged the system of informers whereby an accomplice who brought

others to justice should be pardoned (The case of Mattaka etc.)
Page 77 of 163
He suggested for an elaborate, but human - prison system which he called the
PANOPTION.
With the Code Bentham thought one would have had a Grand System.
Appraisal:
- Bentham pointed the way to reform in Law. The major aspects of his
recommendations have been pointed out by A.V. Dicey in Law and Opinion in
England in the 19th Century.
(a) Legislation must be a SCIENCE. It must be clear and simple. Law

has to be codified and only through that method reform can be carried out i.e.
commands of the sovereign are only clear through statute law. The judiciary's role
was to apply it as it is.
(b) The legislator must aim at creating the greatest happiness for the
greatest number. Utility must be central to all legislation. The individual member is
the centre to the creation of law - the Laissez faire - philosophy of free competition in
the economy was thus central to legislation.
(c) Law was to lay down the rules of the GAME of life, it was therefore
necessary to clear out all moral interpretation in law and make it value free. It was a
belief in empiricism, the foundation of positivism.
Effects of Bentham's Suggestions:
(a) Transfer of political power from traditional rulers to a class which was
supposed to be large and intelligent enough to identify its own interests with the
interests of the greatest number. By Reform Acts of 1832 the Landed Gentry which
Page 78 of 163
was in consortium with the rising bourgeois class from 17th century came to power.
There followed:
(aa) Repeal of Navigation Laws 1846-49
(bb) Repeal of the corn Laws 1846-47.
(b) Promotion of Humanitarianism based on Liberal Philosophy

- anti slavery, anti feudal movements etc.
- New Poor Laws
- Whipping of Women 1820
- The Pillory (1816-1837)
- Hanging in Chain 1834.
For the interests of certain people Bentham wrote:

Legislation is a state of Warfare. Political mischief is the enemy: the
legislator is the commander; the moral and religious sanctions his allies, punishment
and rewards the forces he has under his command. Punishments his regular standing
forces, rewards an occasional subsidiary force too weak to act alone; ... The
mechanical branch of legislation ... the art of tactics direct legislation a formal attack
made with the main body of his forces in the open field; indirect legislation a secret
plan of connected and long concerted operation to be executed in the way of
strategem .... (Bentham: Limits of Jurisprudence Defined at p. 288).
(c) The ideal element in their programme was that the state was assumed
to exist. It was not seen as a historical phenomenon but rather an obvious institution.
(d) Law was seen to be a value free, law ignored History and society.
(e) The bourgeois demanded for Human Rights, democracy, and widening
up franchise - all these were realised in a limited form.
Page 79 of 163
(f) Analytical jurisprudence created a way for the Study of Law as an

academic discipline. Rights and duties which the state was responsible for were
analysed as they had never been analysed before. From that time law became a study
of consistent application. Textbook writers on Contract, Tort, Criminal Law,
Procedural Laws, Property Laws began to emerge and enrich knowledge of humanity
on law.
Lecture II
The Utilitarianism
A philosphical movement that arose during and immediately after the bourgeois
revolution. A standard definition of the movement according to the Dictionary of
Philosophy Utilitarianism is
"a bourgeois ethical theory which considers the usefulness of an action (as)
the criteria of its morality. It was founded by J. Bentham who formulated its basic
principle as "the greatest happiness for the greatest number" through the satisfaction
of individual interests. The morality of an action can be mathematically calenlated as
a balance between pleasure and suffering resulting from it."
Jeremy Bentham, the founder of the movement, wrote two major works
(i) A Fragment on Government 1776
(ii) Introduction to the Principles of Morals and Legislation 1789.
He basically opposed the antiquated social system of feudal England and advocated
for the free play of market forces under the theoretical premise that individuals were
the source of society's progress. He propounded the principle of Utility in the
following words:
Page 80 of 163
Nature has placed man under the empire of pleasure and pain. We owe them
all our ideas we refer to them all our judgements, and all the determination of our life.
He who pretends to withdraw himself from this subjection knows not what he says.
His only object is to seek pleasure and to shown pain... these eternal and irresistable
sentiments ought to be the great study of the moralist and the legislator. The principle
of utility subjects everything to these two motives."
(Introduction to Principles of Morals and Legislation, p. 2)
Bentham argued that under the said principle it was possible to:
(a) lay down principles or standards under which reform would be based,
and
(b) to formulate a method by which legislation could be the basis of that

reform.
Bentham defined his choice of legislation as a tool of initiating change. He proposed

that, legislation could be made an exact science. Hither to law had been based on
custom and judge-made law which lacked a symmetry. Law he argued, must be
based on a system which had definite principles of interpretation and which were
certain. A system of codification could definitely assure the scientific determination
of law. For men to learn how to use legislation to promote the greatest pleasure
(happiness) for the greatest number. It was important to study censorial Jurisprufence
which is the study of the Art of legislation and the reasons for the justification of law.
Expositional jurisprudence is simply the study of law as it is.
Since by its very nature statute law is general a legislature is capable of enacting
general laws or norms that will cover every class of persons in society. But just laws
will only be enacted if such a legislature takes into consideration the principles of
utility and not otherwise. Once the principle of utility is applied one cannot question
the justness or unjustness of that principle.
Page 81 of 163
The Principle of Utility applied to Law
Anything which tends to augument the happiness of the community is utilitarian.

Any action conformable to utility OUGHT to be done, i.e. it is right to do it and
wrong not to do it. Individual action has to conform to community's needs for only
then can man realise his greatest happiness. If he does not conform to the greatest
happiness we have to apply SANCTIONS if he conforms he must get REWARDS.
The punishment and rewards can be found in four domains:
(i) The Popular and Moral Sanction

which is based on the approval or disapproval of others in the
community.
(ii) Legal or Political Saction:

These are based on the political power of the government.
(iii) Religious Sanctions:

supposed to come from the divine agency.
(iv) Physical or Natural Sanction:

Occurs accidentally independent of human agency e.g. failure
to follow physical laws.
To Bentham these were the basis of the science of legislation. They were quite
through that they could adjust pleasure and pain.
SOURCE OF LAW
To apply Utility to law we must begin by defining what is a Political Society. In his
"Fragment or Government" Bentham declared
Page 82 of 163
"When a number of persons (whom we may style subjects) are supposed to be

in the habit of paying obedience to a person or an assemblage of persons of a known
and certain description (whom we may call governor or governors) such persons
altogether are said to be in a state of political society (Fragment on Government Ch.
1).
Bentham expressly defined what in his opinion the Government should be:
It is an assemblage of the persons by whom several operations (i.e. of

governmemt) came to be performed (and) among these persons there commonly is
some one person, or body of persons whose duty is to assign and distribute to the rest
their several departments, to determine the conduct to be persued by each in the
performance of their particular set of operations that belongs to him, and even upon
occasion to exercise his functum in his stead".
That person or body of persons is what Bentham termed as the SOVEREIGN.
The will of the SOVEREIGN is absolute in that he cannot be commanded. He

expresses his will through COMMANDS to the governed. The command is what is
LAW for there can be no act of the sovereign which is neither a command nor a
prohibition of law is:
A law may be defined as an assemblage of signs declerative of a volution

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.
Bentham gave a wide definition of law and here we can make the following
observations on Bentham's defunction of law:
Page 83 of 163
(i) Its Source - it is the person or persons of whose Will it is the

expression thereof. It is the sovereign's Will in a State;
(ii) Its Subjects - persons or things to which it may apply;
(iii) Its Objects - the acts as characterised by the circumstances to which it

may apply;
(iv) Its extent - the generality of its application;
(v) Its Aspects - the various manners in which that will may apply
itself to the acts and circumstances which are its objects.
(vi) Its force - the motives it relies upon for enabling it to produce
the effect it aims at and the laws which it relies on for bringing such motives into play
known as CORROBORATIVE APPENDAGES.
(vii) Its Expression - the nature of the signs by which the Will of the
sovereign may be known, e.g. the statutes, cases, Decrees, Eidits, ordinances etc.
(viii) Its REMEDIAL APPENDAGES.

Other laws than the corroboration appendages i.e. those which
are designed to alleviate the law.
This definition is much wider - Bentham's argument in support of this definition was
that because it included under its terms judicial orders; military orders; any executive
orders or any trivial momentan/order of the domestic kind. It seems this general
definition on anticipated Austin whose definition of Political society, sovereign,
subjects, commands and law are the foundation of Analytical jurisprudence.
Page 84 of 163
- The Jurisprudence of Bentham was mainly Censorial Jurisprudence it dealt

with the science of legislation in providing what OUGHT to be while Austin's
jurisprudence was mainly EXPOSITORIAL JURISPRUDENCE in that it deal with
the Art of interpretation of "IS".
- Bentham was definite that the source of law was a SOVEREIGN and other
source of law was an ILLEGAL MANDATE. The Act of issuing out of such
mandate is an offence. The sovereign uses two methods to give law:
(1) When the law is given by the sovereign himself it is said to be his by
CONCEPTION - legislation or statute.
(2) When it is given through his tact approval e.g. judicial orders, executive and
military orders; etc.
In the sovereign's law by ADOPTIO

- father to children
- husband to wife. These are fictions commands or Quasi - commands.
Benthams divisions of Laws
(1) Laws addressed to subjects

- i.e. laws in Populum (subditos)
(2) Laws of transcendated nature addressed to the sovereign

- Laws in Principiem which may be of two kinds:
(a) Pacta regalia those which wpi;d affect the sovereign himself.
(b) Recommendatory Mandates -

Where they refer to the future sovereign these act to include.
Page 85 of 163
The Physical and Political sanctions can not control the sovereign in reality. It is only
the Religious and Popular sanctions which can compel the sovereign to obey his own
law. If he fails to observe these two then another source can enforce him i.e. a
FOREIGN STATE. This can enforce him by way of TREATIES. The sovereign's
guarator here became another state.
_ Bibliography
Books:
1. Sipula Kabanjes LL.M. Dissertation
2. Austin, J., Lectures in Jurisprudence, 5th Edn. R. Campbell, John Murray,

1885) Chs. 1-6.
3. Id The Province of Jurisprudence

Determined (ed., H.L.A. Hart, Weidenfeld & Nicholson 1954.
4. Hart, H.L.A., The Concept of Law, (Oxford Clarendon Press, 1961) Chs. 2-4.
5. Raz, The Concept of A Legal System, (Oxford: Clarendon Press 1970, 2nd
Edn. 1980) Ch. 12.
6. Dworkin, R., Taking Rights Seriously

(Duckworth, 1971).
7. MacCormic, N., Legal Reasoning and Legal Theory, (Oxford: Clarendon

Press, 1978).
Periodicals:
Page 86 of 163
1. Hart, H.L.A., "Positivism and the Separation of Law and Morals" 71 Harv.
L.R. (1957-58) 593.
2. Summers, R.S. "Professor H.L.A. Hart's Concept of Law" (1963) Durham

L.J. 629.
3. Id "The New Analytical Jurists" 41 NLULR (1966) 681 excepts in Lloyd.

_ CHAPTER V
LEGAL POSITIVISM AND ANALYTICAL JURISPRUDENCE
John Austin 1790-1859 - wrote:

(i) The Province of Jurisprudence Determined 1832
(ii) Lectures on Jurisprudence (Posthumously in 1863)
John Austin on the Principle of Utility (Lecture III)
The Principle of Utility ought to guide the legislator or the principle of Utility or the
principle consulted in making laws.
The Importance of Political Economy:
"Without capital, and the arts which depend on capital, the rewards of labour would
be far scantier that it is, and capital, with the arts which depend upon it, are the
creatures of the Institution of property.
The Institution is good for the many, as well as for the few. The poor are not stripped
by it if the produce of their labour, but it gives them a part in the enjoyment of wealth
which it calls into being. In effect, though not in law, the labourers are the co-
propriators with the capitalists who hire their labour. The reward which they get for
Page 87 of 163
their labour is principally drawn from capital, and they are not less interested than the
legal owner protecting the funds from invasion." [p. 129].
Lecture II
"Without security of property, there was no inducement to save. Without habitual

saving on the part of proprietors, there was no accumulation of capital. Without
accumulation of capital, there was no funds for payment of wages, no division of
labour, no elaborate and costly machines: there were none of those helps to labour
which augument productive power, and, therefore, multiplicity of the enjoyments of
every individual in the community.
Frequent invasion of property would bring the rich to poverty, and, what were greater
evil, would aggravate the poverty of the poor." [p. 107].
The Provice of Jurisprudence - the subject matter of jurisprudence is that of

POSITIVE LAWS. Positive laws occupy a certain place in the general categorisation
of the phenomena known as LAW.
According to Austin Laws which should be the subject of Jurisprudence are those
which are COMMANDS: laws which are not commands are improperly so-called.
Thus the following table:
AUSTINIAN SCHEME
Law
Law of God Human Laws

Page 88 of 163
(Utility?)
Revealed Unrevealed Properly Improperly

So-Called So-Called
Index of Laws set Rules Laws of General by Subjects

of clubs Natu-
Utility as Private Laws of ral
Persons Fashion source
Interna-
tional
Law
Laws set
by politi-
cal super-
visors to
Inferiors
POSITIVE LAW
LAW POSITIVE
STRICTLY MORALITY
SO-CALLED
Province of
Jurisprudence
Without regard
to goodness or
Badness obtained
from a Determi-
nate LAW GIVER-
Page 89 of 163
SOVEREIGN.
This structure arose from the difficulty of defining law, because other rules are
defined as laws when in fact they are not.
Austin's simple definition of law is as follows:
"A Law... in its literal meaning, ... may be said to be a rule laid down for the
guidance of an intelligent being by an intelligent being having power over him".
Laws of God - these come from a divine superior as commands. They are laws
properly so-called but since they are of a transcendental origin they are not the subject
matter of jurisprudence. Though God's unrevealed laws are the foundation of the
Principle of Utility i.e. the idea of the Good.
Laws of Men: these are commands between men and men. Where they are from
political superiors they form the subject matter of jurisprudence. They are positive
laws: or laws strictly so-called. Those given by men not as political superiors are
laws but not really the province of jurisprudence. They are merely POSITIVE
MORALITY.
Laws by Analogy - these are those rules which bear some resemblance to law, e.g.
mere opinion of some indeterminate bodies on human conduct.. i.e. Laws of honour,
Laws of fashion, Laws of Etiquette, International law, etc. They are enforced by mere
opinion and cannot be the subject matter of Jurisprudence. They also belong to
POSITIVE MORALITY.
Laws of Metaphor - These are those which are termed as laws by mere figurative
resemblance, e.g. - Laws observed by Animals, Laws of regulating the decay or
growth of vegetables, Laws determining the movement of inaminate bodies or masses
Page 90 of 163
- all these cannot be the subject of jurisprudence since there is no sanction, command
or duty behind such laws.
All laws properly so-called must be species of COMMANDS. A Command is a

"Wish conceived by one, and expressed or intimated to another with an evil to be
inflicted and incurred in case the wish is disregarded.
Thus a COMMAND imposes a DUTY on the pain of a SANCTION. The laws of

God and Laws of men as political superiors fit in that description."
Austin did point out that there are certain exceptions:
(1) Laws which are not commands but they are a subject matter of the study of
Jurisprudence:
- Acts of the Legislature to explain positive law i.e. Acts of Interpretation which
he styled Declaratory laws or statutes (Provice p. 26)
- Laws to repeal other laws: These laws release people from existing duties,
they revoke commands - these are termed PERMISSIVE LAWS.
- Imperfect laws, or laws of imperfect obligation; e.g. a law declaring certain

acts to be crimes but not attaching to them any punishment.
These three categories however, are not commands but indirectly compel obedience
and therefore their categorisation into jurisprudence is not far fetched.
But there are other laws which are commands but which do not look imperative:-
Page 91 of 163
- Laws which merely create rights. All commands seem to create duties, laws
creating rights could seem not to be imperative. But whenever a right is created a
duty would arise elsewhere indirectly (Province pp. 29-30).
- Customary laws do not seem also to be imperative. But they are, for once the
court adopts a custom as a law, it is enforced by the power of the state and thus it
becomes imperative (Province p. 31).
*LAW (Austin's Conception of Law):

(1) A rule laid down for the guidance of an intelligent being by an intelligent
being having power over him.
(2) Every positive law, or every law simply and strictly so-called is set by a
determinate or sovereign person or body of persons, to a member or members of the
independent political society wherein that person or body of persons is sovereign or
supreme.
Political Society and the Sovereign (Austin's Conception of State):
Like Bentham before him Austin defined political society in the following terms:
If a determinate human superior, not in the habit of obedience to alike

superior, receive habitual obedience from the bulk of a given society, that determinate
superior is sovereign in that society, and the society (including the superior) is a
society political and Independent." (Province p. 194).
What is a political soceity? - Austin says it is that society which is not subdued to
anybody outside itself. The sovereign therefore is the expression of two marks:
positive and negative:
Page 92 of 163
(i) The positive mark consisted in the fact that the generality of society
must be in the habit of obedience to a determinate and common superior.
(ii) The negative mark consisted in the determinate person or determinate

body of persons must not be habitually obedient to a determinate person or body of
persons.
A Unity of these two marks or under a given society to be political and independent.
To know that a society is a political society one must establish the following:
(a) That there is a habit of obedience by the generality or bulk of its members to a
determinate and common superior. If this habit is merely transient or rare the relation
of sovereignty and subject would not be created.
(b) Habitual obedience must be rendered by the bulk of its members, to one and
the same determinate person or body of persons.
(c) The superior must be determinate or else he would be incapable of

commanding.
(d) The superior must not be in the habit of obeying another determinate superior
- (Lecture VI p. 212).
Austin did not support the ideas on sovereignty proposed by Hobbes, Grotius etc.
Austin commented on the three aspects of Political Societies:
(i) On the Forms of Supreme Government:
He maintained that every society can be divided into those who rule and the subjects.
Those who rule are a small composition of the total society. Where sovereignty falls
Page 93 of 163
on one man it is a Monarchy, where it falls on a group of people it is an Aristocracy

and if this group is tool small it is an Oligarchy and where it is too large it is a
democracy (i.e. popular rule).
(ii) On the Limits of Sovereign Power:
He maintained that since the sovereign is the law giver he is incapable of Legal
Limitations. For sovereignty limited by positive law is a contradiction. What
controls the sovereign is mere general opinion and morality. He may lay down
principles he may follow but if he goes against them it would not be illegal but only
UNCONSTITUTIONAL. For constitutional law is merely POSITIVE MORALITY.
The sovereign can do nothing illegal. The sovereign might be limited by the
unrevealed laws of God, in that General Utility might determine whether he should
create more liberties to its citizents or not.
(iii) On the Origins of Political Government and Society:
Austin maintained that this is brought about by habitual obeidence by the bulk of
society; either because of custom in that ancestors did so, or prejudice that is the
founders of Monarchy or democracy did so; or Utility in that political order is better
than anarchy.
[Privince Lecture VI p. 301]
Austin recapitulates the Arguments of Natural law Theorists:
"... almost every government must have arisen in part from the following
general cause: namely, that the bulk of the natural society from which the political
society was formed, were desirous of escaping to a state of government from a state
of nature or anarchy. If they like specially the government to which they submitted,
their general perception of the Utility of government concurred with their special
Page 94 of 163
inclination. If they disliked the government to which they submitted, their general
perception of the Utility of government controlled and mastered their repugnancy".
Austin ends his Sixth Lecture by denying there being the original pact which created
civil society. He maintains that this was a mere fiction or hypothesis of the
originators. The origin of political society is based on its Utility only in that way can
legal philosophy treat rights and duties positive laws and Laws of God etc.
The Command Theory and the Definition of Law:
The main purpose of Austin was to determine the province of Juurisprudence.

Jurisprudence in his view deals with laws properly so called and these must be
commands. The main distinguishing characteristics of commands are that they inflict
an EVIL or PAIN if they are disregarded. Since commands are connected with evil
the commanded are bound or obliged to obey. They have a Duty to do so. If they do
not follow the command they are said to have disobeyed.
A Command and Duty are Correlative expressions (one implies another). Duties arise
from commands. The evil which would be incurred in case a command is disobeyed
is known as a SANCTION. The sanction is frequently styled punishment. Thus
Commmand, Duty and Sanction are inseperably connected terms.
Commands can be of two kinds: Some are LAWS or RULES and others are merely
occasional. Where a command obliges generally to acts or forebearances of a class,
such a command is Law or rule. Where it obliges a specific act or forebearance, it is
oceasional.
Lecture V
Appraisal of Austin
Page 95 of 163
Austin has been intensively criticised by bourgeois scholars and others. Major
criticisms centre around Austin's theory of sovereignty, the command theory,
classification of laws, (i.e. his regard of International law and constitutional law as
positive morality) and the so-called separation of laws from Morals.
(a) The Command Theory
1. K. Olivercrona in his book Law as a Fact (1939) (Lloyd 4th Edn. p. 589)
argues that a command presupposes one person who commands and another who
receives commands. This person who commands is equated to the STATE. This in
Olivercrona's view is a fallacy in that the state is an organisation and consequently it
cannot command. The state is composed of individuals who cannot have a single
will. A command assumes a personal relationship. Rules of law though of imperative
nature are independent and cannot be tied to an individual person.
It is not quite proper to say that law is manifestly backed by force. Laws are rules
regarding the use of force, state power is organised in such a way that citizens know
quite well it would be useless to resist. This may force is pushed into the background.
"Actual violence is however, kept very much in the background. The more
this is done, the smoother and more undisturbed is the working of the legal
machinery. In this respect many modern states have been successful to an extent
which is something of a miracle, considering the nature of man."
[pp. 124-125) Lloyd p. 595.]
Force is much more direct in criminal and civil law. With Administrative law, it is
concerned with education, health, communication etc. Law here is rarely directed to
the use of force.
On Law and Morals he commented as follows:

Page 96 of 163
There must be some link between the moral ought and law. As individuals live in
society form a certain conduct which may be translated into legal imperatives. Even
though law is basic for the use of force, it can be made through ideological means.
Oliver crona did not disagree with Austin that law should be divided into various
categories, but detested the use of the term command.
Leon Duguit is another critic of John Austin's command theory - Duguit shows that
the notion of command is inapplicable to modern social legislation which bind the
state itself rather than the individual.
(b) The Theory of Sovereignty:
The major criticisms are based on the fact that Austin relied on the less developed
concepts on sovereignty of BODDIN, HOBBES and ROUSSEAU. He argued that
Sovereignty was indivisible. On looking at modern times, it is noticed that some
Constitutions show that sovereignty can and is divisible:-
e.g. Modern Federal Constitutions.
- USA, Nigeria, the Federal Republic of Germany
Austin's major fallacy was that he treated sovereignty as a Metaphysical entity which
has a logical structure. The more realistic approach would have been to treat
sovereignty as a Social convenience, or as a device of law and politics whereby
society practically places final authority. This meaning, at any time it can be divided
into various Institutions.
Austin's sovereignty was based on a Social Fact i.e. HABITUAL OBEDIENCE. No

criteria was given on the manner of establishing this fact. In revolutionary situations,
Austin's test faces a lot of problems. Which laws can be applicable becomes a
question which is too open. This has been evidenced in the following cases:
1. Carl Zeiss Stiftung v Reyner & Keeler Ltd,

Page 97 of 163
[1967]1 AC 853 (HL).
2. State v Dosso, [1958] 2 P.S. CR 180.
3. Uganda v Commission of Prisons Ex Parte Matovu,

[1966] EA 514.
4. Madzimbamto v Ladner Burke, [1969]1 AC 645.
5. Lakanui and Kikelomoola v AG (Western State), in 20

International and Comparative Law Quarterly, 117.
6. Sallah v AG in 20 International and Comparative Law Quarterly, 315.

According to Bryce, Studies in History and Jurisprudence II pp. 51-62. Austin's
difficulties here are generally said to come from his failure to distinguish between
Dejure and De facto sovereignty. (The former is the authority to make law the latter
is power to enforce obedience).
- Difficulties have already arisen in England where some of the decisions of the
European Court in Luxemburg have been taken to have a direct effect in England.
According to Austin no external legislator can make laws for the UK without the
sanction of Parliament. The English Act known as the European Communities Act,
1972 and through it English Courts have given effect to EEC Legislation directly and
the judicial recognition is through The Siskina, [1977]3 All ER 803.
Thus the Austinian concept of supreme sovereign power is becoming absolete with
the expansion and Integration of Nations. Dubts have further been expressed in G.
Winterton "The British Conundnovan; Parliamentary Sovereignty Re-examined 92
LQR [1976] 591 and W.L. Morrious, "Some Myths about Positivism" in 68 Yale L.J.
(1958) 212.
Page 98 of 163
Lecture VI
An extensive and more wider critique of Austin's Theory is one by W.J. Rees, "The
Theory of Sovereignty Restated" Lloyd p. 237 in which he shows that sovereignty is
a very confusing concept in ordinary language. It has about six different meanings:
(i) Legal Sovereignty - the supreme legal authority.
(ii) Moral Sovereignty - Rousseaus and Hegel's the supreme legal

authority in so far as it is also a completely moral authority.
(iii) Sovereignty in the Institutionally coercive sense - a supreme coercive power

exercised by a determinate body of persons possessing a monopoly of certain
instruments of coercion. (Bryce & T.H. Green).
(iv) Sovereignty in the Socially Coercive Sense - a supreme coercive

power exercised habitually and cooperatively by all, or nearly all the members of the
community.
(v) The Stronger Political Influence - (Locke & Dicey).
(vi) Permanent Supreme Authority - power and influence, emphasis laid

on permanance.
In his view for the state the first two kinds of sovereignty are necessary but the rest
may not be necessary.
Post World War II. A Returned Natural Law:

The Seperation of Law and Morals:
Page 99 of 163
Professor Hart's view in his article "Positivism and the Separation of Laws and
Morals" 71 Harv. L. Rev. [1958] 593, the separation of law from morals is one of the
basic tenents of positivism:
(a) There is no necessary connection between law and morals or law as it is and
law as it ought to be.
(b) The analysis of legal concepts is to be distinguished from historical inquiries

into causes or origins of law, from sociological inquiries of the relations of law and
other social phenomena and from the criticism or appraisal of law whether in terms of
morals, social aims, "functions" or otherwise.
(c) A legal system is a "clossed logical system" in which correct legal decisions
can be deducted by logical means from pre-determined legal rules without reference
to social aims, policies or moral standards.
(d) Moral judgements cannot be established or defended, as statements of facts

can, by rational argument, evidence or proof.
Critics of Austin have depended on their class position namely Natural Law critics,
Metaphysical critics, the Historical School group the sociological school group, and
the Marxist group.
(i) The Natural Law Group - holds that law has a moral quality. If not a moral
quality then it has a social value with which it must be defined - (Delvechio & Lon
Fuller, Lloyd p. 148). These contend that without a higher source, law cannot be
defined and comprehended as it is.
(ii) The Metaphysical Group - asserts that a higher principle within man
must be the author of law - Neo-Kantians, Stammler etc, Hegelians. They maintain
Page 100 of 163
that the moral òught' is within law itself. Otherwise such oppressive systems like the
NAZI would be justified as normal human orders.
(iii) The Historical Group - seeks the origin of law and its logic from History
itself. These were headed by the German scholar and Jurist Karl Von Savigny and the
Englishman Sir Henry Maine.
(iv) The Sociology of Law Group - Erhlich, social interest or

jurisprudence of interests; social solidarity, Pragmatism, Realism etc.
- These assert that in any given context law is explainable except
through its social relevance. If law was a mere command then it would have ended
with the death or extinction of the law giver.
(v) The Marxist Appraisal of Positivism:

Positivism is typically a product of the bourgeois mode of production.
In that system of law it plays two distinctive functions:-
(i) It acts as a frame of reference for intra-bourgeois disputes

though even here it is not as impartial as it is supposed to be. The dominant economic
group would normally get "justice".
(ii) It serves as an ideological bulwark . Here law is seen as the

necessary condition precedent for the existence of man himself. Without law man
would become a useless creature. Society is seen to be founded on law what Engels
called A JURIDICAL WORLD OUTLOOK.
Positivism encourages this outlook by applying rigidly
"Logical Methods" to legal interpretations. In this way the socio-class content of law
is assumed to have been done away with.
According to Tumanov in Contemporary Bourgeois Legal Thought: A Marxist

Evaluation of the Bourgeois Concept Ch. 2.
Page 101 of 163
He accepts Positivism that it has achieved which is making the study of law a much
more coherent exercise. That positivism emphasizes the law-making role of the state
which is a very true foundation. Critics of Positivisms fail to see the distinction
between just laws and unjust laws or morality within law, are not seeing the main
problems of positivism:
The major problems of Positivism are:
(i) in arguing that the study of law cannot be achieved through formal
logical - methods, the methods were exaggerated and became an end in themselves.
Consequently, this has put a limit in the province of jurisprudence.
(ii) by ruling out social evaluation of the law making activity of the state,
Positivism placed jurisprudence further away from the social relations which gave
law its particular form.
(iii) Law cannot be reduced to the mere will of the state, but it is rather the will of
society (social class) which controls the means of production which matter.
The abstract nature of Positivism has material conditions and on this Engels writes:
"The more intricate this legal system becomes, the more is its mode of
expression removed from that in which the usual economic conditions of the life of
society are expressed. It appears as an independent element which derives the
justification for its existence and substantiation of its further development not from
the economic relations but from its own miner foundations".
The distinction between law and morals is necessary. Law and morals are all socially
conditioned. At one level or another the general ethics of a given mode of social life
Page 102 of 163
must have their influence on law. If one has to accept that social evaluation of law is
acceptable then even morality is not out of question.
More critique in the Theory of Sovereignty by Austin.
- MacCormic, "Beyond Sovereignty" in Vol. 56 No. 1 MLR [1993] 1-18.
- F. Snyder, "The Effectiveness of European Community Law: Institutions,

Processes, Tools and Techniques" in Vol. 56 No. 1 MLR [1993] 19-54.
_
CHAPTER VI
H. L. A Hart:
- Born 18-07-1907
- Educated at New College, Oxford.
- 1929 First Class Honours Degree in Greats.
- 1922-1940 Practiced at Chancery Bar.
- Served the Ministry of War till the end of WWII
- 1945 embarked on Academic career.
- 1952 Elected Professor of Juris at Oxford UC.
- 1968 Resigned from Professorship
- Hart's exchanges with Prof. Lon Fuller on the validity of the Positivist
separation of law and morality.
- Greatest contributer to Legal Theory - The Concept of Law (1961) in which

he undertook to elucidate on the concept of law and legal system which is presented
in Ch. V his own model of the legal universe.
Hart maintains that Austin's failure lay in saying that:

Page 103 of 163
The ideas of orders, obedience and habits, and threats, do not include, and
cannot by their combination yield, the idea of a rule, without which we cannot hope to
elucidate even the most elementary forms of law.
H.L.A. Hart, The Concept of Law, OUP 1961 (Rep. 1988)

Aim of the book:
- further understanding on law, coercion and morality (different but related
social phenomena).
- an essay in analytical jurisprudence concerned with clarification of the general

framework of legal thought.
Central Theme:
Neither law nor any form of social structure can be understood without an
appreciation of certain crucial distinctions between two kinds of statements ìnternal'
and èxternal'.
The book is an essay in descriptive sociology.
Perplexities of Legal Theory:

What is law
- What officials do about disputes is ... the law itself (Llewellyn)
- the prophecies of what the courts will do ... are what I mean by the law
(Holmes).
- statutes are sources of law ... not parts of the law itself (J.C. Gray).
- Constitutional law is positive morality merely (J. Austin).

Page 104 of 163
- One shall not steal; if somebody steals he shall be punished ... if at all existent,
the first norm is contained in the second norm which is the only genuine norm ... law
is the primary norm which stipulates the sanction (Kelsen).
* All these are the outcome of prolonged reflection on law made by men who
were primarily lawyers, and to some cases to administer it as judges.
Many answers to what is law: because besides clear (understanding) standard cases
constituted by the legal system of modern states, there exists doubtful cases, their
`legal quality'. (Primitive law & Lnternational Law): Thus a controversy as to what
is law?
International law:- lacks a legislature - states can not be brought before international
courts without their prior consent;
- there is no centrally organized effective system of sanctions.
Primitive Law: lacks similar features

What is law?: the salient features of a municipal legal system.
What is law about?

What is law?
Recurrent Issues:
What is law?
What is the essence of law (Nature of law)
Whether law is a system of rules?
Laws Commands and Orders
- aimed at J. Austing thesis
The Variety of Laws.
The content of laws
Page 105 of 163
The Range of Application

Modes of origin
Sovereign & Subjects

- The Habit of obedience and the continuity of law
- The persistence of law
- Legal limitations on legislative power
Law as the Union of Primary and Secondary Rules:

The Foundation of A Legal System.
Q. 5: Basic Elements of Hart's Concept of Law!

_
Things social Have an Rule of
that habits Ext. Aspect Recogn.
influence
human
behaviour Have
Source:
Scarcity of material resources - has always been there.
- Concept of law
state
Internal Aspect of law
Law & Morality
Natural law as an Aspect of law.
Ronal Dworkin
Rules Principles/Standardd
Page 106 of 163
Whole or Validity of principles

nothing Clear cases Sense of appropriateness
situation Hard Justice/Equaly
Cases
Rule Rigs v Palmer - Will

Skeptic No persons should benefit
from as his wrong
*"As a matter of principle".
Natural society Legal system (state)

Primary Secondary Rules
Rules - Change
no system - Recognition
of enforcement - Adjudication
H.A.L. HART
- Concept of a Legal System Ch. VI
- Internal Aspect of Law
- Primary & Secondary Rules
- Rule of Recognition ) Secondary
- Rules of Adjudication ) Rules.
- Rules of Change )
- Separation of Law from Morals (Overlap)
- Natural Law as Part of a
legal order.
HART'S CONCEPT OF LAW:-
Concept of a Legal System

1. The Legal System: a system of Social Rules in two senses:
Page 107 of 163
(a) They regulate the conduct of members of societies.

(b) They derive from human social practice, they are not only social rules;
there are rules of morality.
2. Laws (like rules of morality) are concerned with obligations, by making

certain conduct obligatory.
(unlike rules of morality) have a system of quality which forms the union of
primary & secondary rules.
3. Hart objected to Austinian Command theory in that it failed to encompass the

"varities of laws". He distinguishes between (i) primary duty imposing rules i.e.
rules of criminal law or the law of tort; and (ii) secondary power-confering rules
such as the laws that facilitate the making of contracts, wills, trusts and marriages, etc,
or those which lay down rules governing the composition and powers of the courts,
legislatures and other official bodies.
These secondary rules relate in various ways to the primary ones (in this kind
of relationship the system of quality of law is found).
4. Three Kinds of Secondary Rules:

(a) Rules which confer competence on officials to pass judgment in cases
of alleged wrongs and to enforce the law i.e. by ordering the payment of damages, or
by depriving someone of his liberty (Rules of Adjudication).
(b) Rules which regulate the process of change by conferring power to

enact legislation in accordance with specified procedures (Rules of Change) - include
rules which confer to ordinary individuals power to produce changes in the legal
relationships they have with others.
(c) The rules of recognition - determine the criteria which govern the
validity of the rules of a system.
Page 108 of 163
Minimum Conditions for the existence of Legal System:

(a) Those rules of behaviour which are valid according to the system's
ultimate criteria of validity to be obeyed (private person to obey the system).
(b) the rules of change and adjudication must be effectively accepted as

common public standards of official behaviour by officials (to be satisfied by officials
of the system, they must regard the secondary rules as "common standards of official
behaviour and appraise critically their own and each others deviation and lapses").
They must accept these rules or at least the rule of recognition and observe them from
what he calles "the Internal point of View".
A system of rules in the above sense which is effectively in force in a
territory, is what Hart calls the Central Case of a Legal System.
5. Parallels between the above and other systems:

The standard, mature, stable legal system (on comparison he says): Primitive
forms of human social community with a common set of primary standard being
observed, where power - confering rules have not yet developed. The shortcomings
of such a community are cured by the development of secondary power - confering
rules. The absence of the secondary power - confering rules leads to the absence of
certain law concepts like "power", "official", "legislature" which members of a
modern state take for granted.
(International law lacks a central organ of adjudication with compulsory
powers, it does not have (other than through multilateral treaties) a method of
changing the rules to govern relationships between states; there is no rule of
recognition).
6. Hart does not agree with Austin that primitive law and international law are
not law. He draws a distinction between a "set" of rules and a "system":
Page 109 of 163
In the simpler form of society we must wait and see whether a rule gets
accepted as a rule or not; in a system with a basic rule of recognition we can say
before a rule is actually made that it will be valid if it conforms to the requirements of
the rule of recognition.
Given survival as the aim, law and morals should include a specific content.
7. "A Core of Good Sense" - natural law is part of the legal order be cause it
provides “a Core of Good Sense":
If society is not to be a suicide club the legal orderings of human social

communities must "naturally" embody a certain number of basic prohibitions, what
are known as "minimum content of natural law".
Limitations on conduct as common requirements of law and morality,

therefore, there is an overlap between law and morality.
8. According to Hart Law is separate from morality. Hart as a positivist, does

not believe that law is derived from morality, there is no higher order to which law
looks to take its authority. Despite "the minimum content of Natural Law" this does
mean there is any necessary conceptual or definitional link between the legal and the
moral world.
But Hart acknowledges that the ultimate basis for preference of positivistic
thesis which insists on a clear differentiation of law and morals, is itself a moral one.
A concept of law which allows the invalidity of law to be distinguished from it

immorality, enables us to see the complexity and variety of issues such as those that
confort persons called upon to obey evil laws or those that German Courts had to
answer after the Second World War. (*The same questions have to be answered by
the International Tribunal in Ruanda, Burundi and Bosnia).
Page 110 of 163
9. Hart's "Internal Aspect" of Law:-

Normativity hinges on human attitudes to human action. Law depends not
only on external social pressures which are brought to bear on human beings, but also
an the inner point of view that such beings take towards rules conceived as imposing
obligations. Where a given society has no more than a set of primary rules, it is
necessary for its members not only to obey those rules but also consciously to view
them as common standards of behaviour, violation of which are to be criticised (group
solidarity). In a legal system (stable, mature) it is not necessary for citizens to possess
an internal point of view. It is sufficient if officials of the legal system have this
view. The internal aspect of rules is distinguishable from habits. (It is not possible to
explain rules sorely by reference to external patterns of behaviour).
This internal point of view means:

- there should be a critical reflective attitude to certain patterns of
behaviour as a common standard,
- this should display itself in criticism (including self-criticism),
- demands for conformity,
- criticisms and demands are justified these find their characteristic
expression in the normative terminology of "ought", "must", and "should", "right",
and "wrong".
10. The Rule of Recognition:

This can be understood by working at Hart's criticism of Austin's concept of
sovereignty:
- mere "habit of obedience" can not explain the continuity of law. (The
fact that obedience is rendered not merely to the initial ruler but his successor). (1)
Habits are not normative, they can not confer rights or authority on anyone (2) habits
of obedience to one individual cannot, though "accepted by rules" can, refer to a class
Page 111 of 163
of future successive legislators as well as current ones, or render obedience to them

likely.
Habit of obedience to one legislator neither affords the ground for the
statement that his successor has a right to make law, nor for the factual statement that
he is likely to be obeyed (states or Government in Revolutionary situations).
The rule of recognition: provides authoritative criteria for identifying valid

law within a particular legal system. How is it ascertained? Such a rule is often than
not expressly started, but it can be shown by the way in which particular rules
("primary rules") are identified by the Courts and other legal officials.
The Rule of recognition is the ultimate and as an ultimate rule it can "neither
be valid or invalid". The test is whether the rule of recognition is accepted as such by
those who operate the legal system. The rule of recognition is power - confering
secondary rule but in reality it is duty imposing.
_
CHAPTER VII
Kelsens Biography
Lecture I:
1881 - 1973 Born in Vienna Austria Died in California in the USA.

- 1906 Graduated as Doctor Juris.
- 1918 a Privat Dozent [Lecturer].
- 1919 Full Professor.
- Chief Draftsman of the First Austrian Constitution
- One of the Leading member of the Supreme Court in Austria.
- 1930 Accepted a Chair at the University of Cologne (West Germany).
- Lived in Geneva Switzerland.
Page 112 of 163
- 1940 Migrated to the USA - at Harvard Law School under Roscoe

Pound (as a Research Associate)
- 1943 Moved to Berkeley - Califonia.
- 1943-1951 Worked at Berkeley Califonia in the Department of
Political Science and was allowed to teach one Semester in the Law School.
- 1951 Retired at the age of 70
- 1973 died at Berkeley Califonia.
- An outstanding Lawyer & jurist.
- Had ten honorary degrees.
- was a prolific writer: 604 Publications translated in 24 Languages.
Kelsen's Pure Theory of Law.
1. Crisis of Legal Positivism

Emergency of other schools of law which tended to criticise and in the final
analysis replace analytical positivism:-
- the Sociological School of law
- the Realist School of law - American
- Scandnavian
- the Historical School of law
- the Marxist School of law
2. The purification of law was done by Hans Kelsen in The Pure Theory of Law
- Kelsen's criticism of sociological jurisprudence
- The New Theory to purify law while upholding the tenents of

positivism. (Kelsen's General Theory of Law and State. Preface p. xiii.)
3. Philosophical Basis
- the Vienna circle out of which Kelsen established the Vienna School
of Law [Mathematical logic/Legal Logic]
Page 113 of 163
Lenin: Materialism and Empirio-Criticism. Foreign Languages Press,

Peking 1972.
- Immanuel Kant [1724-1804] - A German jurist (two books: Critique of

Pure Reason and Critique of Practical Reason.]
- Kelsen and the sociological school of law but maintaining the

positivistic stand. Even though he did not know anything about Austin until later,
there are certain similarities between Kelsen and Austin.
- Relationship of legal theory to a particular system of positive law: the

place of pure theory to positive law. Kelsen and Kant compared.
- The Norm:
(a) Kelsen's definition of law
(b) Validity of a Norm
(c) The Grundnorm and Kelsen's definition of law within the

Normative system.
(d) The nature and origin of the Grundnorm and the basis for
validity of the Grundnorm
(e) The relationship between the National legal Order and the
Grundnorm: The step and Stair Theory or the theory of concretisation.
(f) Sanction as the foundation of the norm:- Austin and Kelsen

compared on their conception of sanction vis-a-vis the legal system.
(g) Duties, Liabilities and Rights:

Page 114 of 163
- Kelsen, Austin, Newcomb, Hohfield's Fundamental

Legal conceptions as applied to judicial Reasoning, (1923).
(h) Criticism of the Pure Theory of Law

- Kelsen's Theory in a revolutionary situation:
(a) Validity
(b) Necessity
(c) Change - Death ) New
- Birth ) Order
(d) Efficacy/acquiesence
(e) Recognition
(f) State sovereignty and International law
(g) Consequences of Kelsens Theory
(h) Kelsen and the Marxist Theory of law
Mitchell V DPP [1986] LRC (Commonwealth)

[1972] PLD
Bhutto's Case [1977] PLD
Ghai, The Political Economy of Law - first 3 pages.
Lloyd/Freeman, 5th Ed. Ch. 5.
Pure Theory of Law

1. Crisis of Positivism - The Origins of the Pure Theory of Law.
2. The Pure Theory of Law

- Conceptual Foundations/Structure
- Application of Pure Theory of Law
3. Critics of Kelsen.
Readings:
Page 115 of 163
Lloyd Ch. 5
Friedman Ch. 24.
Kelsen, H. General Theory of Law and State, (Trans. A. Wedberg, Harv. UP. 1949).
Id. What is Justice? (Un. of Cal. p. 1967).
J. Raz, The Concept of a Legal System (Oxf. The Clarendom Press 1970; 2nd Ed.
1980).
Id. The Authority of Law (Oxford. The Clarendom Press, 1979).
Engel, S. & R.A Metal (eds) Law State and the International Legal Order: Essays in
Honour of Hans Kelsen, (Un. of Tennessee Pr. 1964.
Nwabueze, B.O. Constitutionalism in the Emergent States, London, 1973.
Id, Nigeria's Presidential Constitution 1979-1983: The Second Experiment in

Constitutional Democracy, Longman, 1985.
Articles:
(1) Kelsen H. "The Pure Theory of Law" in 50 LQR (1934) p. 471, 51 LQR
(1935) p. 517.
(2) Finuis, J.M. "Revolutions and Continuity of Law" in Oxford Essays in

Jurisprudence, 2nd Series OUP 1973.
(3) Dias, R.W.M. "Legal Politics: Norms Behind the Grundnorm" in 26

Cambridge L.J. (1968) 233.
Page 116 of 163
(4) Ojo, A. "The Search for a Grundnorm in Nigeria: the Lukaknmi Case" 20
Int. & Comp. LQ, [1971] 117.
(5) Date Bah S.K., "Jurisprudence's Day in Court in Ghana" 20 Int. & Camp.
LQ, [1971] 315.
(6) Iyer, T.K.K. "Constitutional Law in Pakistan: Kelsen in the Courets" 21

American J. of Comp. L., [1973] p. 759.
Jones, J.W. "Modern Discussions of the Aims and Methods of Legal Science" 47
LQR (1931) 62.
Brookfield "The Courts, Kelsen and the Rhodesian Revolution" 19 University of

Toronto L.J. (1969) 326.
Mukoyogo, M.C. "A Crititique of Hans Kelsen's Pure Theory of Law" 7 Dar es
Salaam ULJ [1978] 191-243.
William Ebanstein in 59 Cal. L. Rev. [1971] 609-819

Warnock, G.J. English Philosophers. Since 1900.
J.A. Passmore, A Hundred Years in Philosophy, pp. 369-370.
Harris J.W. "When and Why does the Grundnorm Change" in [1971] CLJ 103.
Borna Horvat, Social Science Research, Vol. 18 1951 on Kelsen.
H.L.A. Hart, The Concept of Law (1961) "Positivism and the Separation of Law and
Morals" in 71 Harv. L. Rev. 593.
J. Stone, Legal System and Lawyers Reasoning, (1964 Sydney).
J. Stone, The Province and Function of Law, (1964) Ch. 4 "Kelsens Pure Science of
Laws".
Page 117 of 163
B.O. Nwabueze, Nigeria's Presidential Constitution 1979-83

The Second Experiment in Constitutional Democracy, NY 1985
Ch. 3.
B.O. Nwabueze, Constitutionalism in the Emergent States, Hurst 1973, pp. 228-38.
A.K.W. Halpin., "The Limitations of A Legal System" in The JURIDICAL

REVIEW - NS 1981 (Part I June) pp. 29-54.
H. Kelsen's Pure Theory of Law
Reading a juristic text:
- The Historical
- The Analytical
- The applied.
The Historical
1. What were the author's central concerns in writing this text?

2. What was biting him?
3. Who was the author?
When was the text written, published?
What was the immediate (practical, intellectual, personal, cultural) context of
its creation?
Where does it fit in the authors total opus/intellectual development?

Whence? Sources "influences" etc.
What were the author's main concerns?
Page 118 of 163
The Analytical
(a) Exposition
What questions does the text address?
What answers does it give to those questions?
What are the reasons (evidence, premises, arguments) advanced in support of
the answers?
(b) Dialogue
Do I agree with the questions?
Do I agree with the answers?
Do I agree with the reasons?
The Pure Theory of Law
1. HISTORICAL ROOTS or Crisis of Legal Positivism and the Origins of Pure

Theory of Law:
- By the end of the 19th century there was a radical shift from Analytical
Jurisprudence to
(a) Sociological Jurisprudence. The Basic tenants of positivism were
analysed and rendered invalid or amended. The command theory and the doctrine of
sovereignty propounded by Austin were dismissed as being too narrow for defining
legal categories i.e. duties and Rights.
(b) The Realist School denied the normative character of law and the
existence of a sovereign with a separate will. Jurisprudence was left with a World
with the So-called "legal facts" which were extremely relativistic.
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A coherent discipline could be built upon judge made law and the study of the
predictions of what courts are likely to do based on psychological studies. The
compelling character of law was meta-legal and spiritual.
The failure of the sociological jurisprudence were becoming obvious at the beginning
of the 20thC. Its definition of law was haphazard. The social interest intended to be
balanced by legal officials until they became law, were not clearly defined. Law had
became a discipline teinted with the methods and aspects of other social sciences, to
the extent that, it became armorphous and not an independent discipline.
- In admitting that various social interests made up what was law, the
bourgeoisie conceded that law had to stand in accordance with certain social criteria.
Such criteria, it was realised, must have class value in what was termed the `conflict
model'. It meant that even workers and other social classes must have laws which
protect their interests. This kind of a theory was not acceptable to the bourgeoisie.
The contradictions inherent in the sociological school had to be cleared, without
dismissing its merits vis-a-vis analytical jurisprudence.
This task was done in the Pure Theory of Law, by Hans Kelsen, a German
jurist born at Vienna, Austria [1881-1973). Hans Kelsen established a school of
Thought - the Vienna School (an off-shoot of the Vienna - circle) in 1911 and it
existed up to the post World War II era in Europe.
Hans Kelsen detested how sociological jurisprudence had treated law:
"In an utterly unscientific way jurisprudence has become a hotchpotch of

sociology, biology, ethics and theology; there is no specialised science in which the
jurist does not feel at home; and what is more, he believes that the more he draws
upon other disciplines, the greater his standing. The innevitable result is the end of
any true science of law". (Tumanov p. 164).
Page 120 of 163
Kelsen felt that the study of law had to be punifified from foreign elements. The new
theory of law must uphold the tenents of Positivism. In outlining the general
premises of a better theory of law he wrote:
"The aim of this general theory of law is to enable the jurist concerned with a
particular legal order, the lawyer, the judge, the legislator, or the law teacher, to
understand and to describe as exactly as possible his own positive law, such a theory
has to derive its concepts exclusively from the contents of positive legal norms. It
must not be influenced by the motives or intentions of the law making authorities or
by the wishes or interests of individuals with respect to the formulation of the law to
which they are subject, except in so far as these motives and interests are manifested
in the material produced by the law making process."
(Kelsen, General Theory of Law and State, Preface p. xiii).
Kelsen's Philosophical Basis
Kelsen's philosophical basis is Immanuel Kant (1724-1804)* - a german jurist who

taught that man is part of the World of empirical phenomena and within that World
his will and actions are subject to the iron laws of causality as shown in Newton's
Theory of the physical Universe. His will and actions within that sphere are unfree
and determined. This is a sensible world (the World of Sense perceptions).
- Man is also part of the intelligible or "noumenal" World. This is the World of
man's inner experience and practical reason which tells him that he is a free moral
agent who can choose between good and evil. This is the world of freedom, self-
determination, and the moral choice. Law and morality belong to this intelligible
World.
Freedom within this realm is only possible in so far as man is capable of

obeyind the supreme moral law which is engraved in all men's hearts. This moral law
is in the form of the CATEGORICAL IMPERATIVE and it provides that:
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"Act in such a way that the maxim of your action could be made the maxim of
a general action."
The categorical imperative has a normative character in that it is founded on an

"ought" which compells obligation. It is the foundation of all morality and law.
While morality is based on internal motives of the individuals, legality is a matter of
action in conformity with an external standard set by law. For Kant, law can be
defined as:
"the aggregate of the conditions underwhich the arbitrary will of one

individual may be combined with that of another under a general inclusive law of
freedom."
With law there must be an external power capable of compelling. Obligatory laws for
which an external legislation is possible are generally called external laws.
- Those external laws the obligations of which can be recognised by reason, a

priori even without an external legislation are called Natural laws.
- Those laws which are not obligatory without actual external legislation are
called Positive laws.
Positive law draws its validity from the expression of an authoritative will, while
natural law from an a priori category of free will. None is superior to the other, and
their provinces form separate areas of investigation. While Natural laws deal with
Justice, Positive laws deal with man made laws.
Kant dealt mainly with the sphere of justice, but Kelsen deals with the sphere of
positive laws.
Page 122 of 163
J. Stone in his Legal System and the Lawyers Reasoning 1964 Ch. 3 says that Kelsen
can be termed a Neo-Kantian, he stands to Kant as Austin stood to Bentham.
- Law manifested particularly in the provice of psotive law, but internally it has
a normative character that of an ought. This is what Kelsen seeks to expand as a
Normativist. The major difference between Kelsen and other neo-Kantians like
Rudolf Stamuler (1856-1938) and Giorgio Del-Veccio (1878-1970) is that they do not
clearly distinguish between moral and legal orders (R. Moore, Legal Norms and Legal
Science, at p. 8). Law as a formal and logical order exists independently of factual
considerations. To build a pure theory of law it was necessary to distinguish between
"ought" and "is".
NORMATIVISM IN LAW (Lecture 2)
* Normativism in law is the 20thC. dominant bourgeois jurisprudence. It

emphasizes the formal structure of law. Normativism is a link of positivism with
Neo-Kantianism. Normativism is a reproduction of positivism on the basis of Neo-
Kantianism. The aim is to purge from law all foreign elements. Insistence is on the
study of law itself.
Neo-Kantian's maintains that it is not possible to evaluate law from social

background. A scientific theory of law must study law as it is. No evaluation of
positive law is to be made. A legal scientist must not consider sociological data when
analysing law as a science. Law cannot be understood from political, ideological or
other factors. There is no relationship between law and morality. Normativism is a
theory of capitalist crisis, employed to show that the bourgeoisie law was in no way
related to the socio-political actions and the realities of imperialism. The jurists had
to concentrate on the formal logical forms in which norms find expression.
Normativity is a principle according to which the science of law describes its object.
But normativity is not a property of the legal norm but a methodological principle of
legal studies.
Page 123 of 163
The principle of normativity can be understood in the following expression:
... the legislator in his obligatory prescriptions equiped with sanctions may
proceed from any motives. But the moment thought (that is science) unertakes to
regulate this material, it arms itself with the "ought" category, and the legal material
assumes the shape of a logical directive (judgement).
"If there is A, then there ought to be B", that is if the conditions are
such, the consequences (sanction) linked in the culpa "ought" must be such".
The "ought" is a category of transcendental logic, not an ethical idea. It is a category

introduced into law by consciousness, and serves to isolate law from the World of
social being. It follows that legal propositions, in which the science must describe its
subject matter cannot be verified by turning to the physical World.
The Normative Theory of Law
The essence of the normative theory of law is that law lies in the domain of what
ought to be not what is. "What is", designates the sphere of natural and social
phenomena. "What ought to be" signifies that which we aspire for irrespective of of
whether or not it is realisable in real life. This philosophy is based on Kant and the
neo-Kantian's Windelband, Richet and Cohen.
The neo-Kantian bourgeois legal philosophers at the end of the 19thC. and early
20thC. sought to adopt Kant's teachings to the conditions of imperialism.
Kant's idea of the categorical imperative employed to explain the scientific theory of
law at his time. As we shall see he maintained like the other neo-Kantians that the
moral law that which ought to be and in reality, that which is, are independent of each
Page 124 of 163
other. "That which ought to be was not only independent but an antithesis of that
which is".
According to Kelsen, the sociological school of jurisprudence brought in the study of

law aspects which made jurisprudence unpure. Adherents of the sociological school
of jurisprudence failed to recognise the normative content of law. It was not
necessary according to Kelsen to go to social facts in order to prove the validity of
law.
Kelsen felt that his theory had more unity with Analytical jurisprudence than any
other theory. He didn't know of Austin until much later. One major difference
between Kelsen and Austin was that while Kelsen insisted that the sanction
necessarily ought to follow the delict; Austin argued that the sanction would probably
follow.
Kelsen differed with Austin on the command theory.

Principle Doctrines of the Pure Theory of Law:
(1) The aim of the theory of law, as of any science, is to reduce chaos and
multiplicity to unity. That is, a theory of law must be a Unified logical system.
(2) [A] Legal theory is a science and not volition (exercise of will, power of
willingness i.e. it is not a moral). It is knowledge of what law is, and not kwhat law
ought to be.
(3) Law is a normative and not a natural science.

(4) Legal theory as a theory of norms is not concerned with the effectiveness of
legal norms. This province can be left to sociology of law which is not a subject
matter of legal science.
Page 125 of 163
(5) A theory of law is formal, a theory of the way of ordering, changing content in
a specific way. This approach makes legal science methodologically analytic. This is
because legal science deals with a priori categories which can be studied in a purely
formal scheme.
(6) The relation of legal theory to a particular system of positive law is that of
possible to actual law. This is because the pure theory of law is just a scheme of
interpretation which serves as a framework for particular positive law. Thuis the
knowledge of Pure Theory is logically prior to the knowledge of actual law. To
Kelsen as was for Kant, knowledge of possibility preceeds knowledge of reality. Pure
Theory of Law employs a prioristic "critical theory of knowledge" to develop the
normative structure underlying the actual legal system.
THE NORM
According to Kelsen law can be defined as an aggregate or system of norms, as a

normative order. The norm: means something ought to be or ought to be done. What
differentiates a legal norm from other norms is that it is created by acts of human will.
The legal norm would be only recognised if it is part of the legal normative order.
But these relations cannot empirically be tested since a norm as an ought statement
does not have roots in the empirical world. Thus the norm can only be recognised
through the test of validity i.e. its binding force for those whose conduct it governs.
For a norm to be valid there must be two requirements:
(i) that norm must be part of the system of norms
(ii) the system of norms to which it belongs must be efficacious in

the sense that men actually do, "by and large" behave in accordance to the norm.
The validity of norms cannot be merely factual, it depends mainly on its relation with
other, perhaps higher norms. The process of going towards higher and higher norms
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which give validity to the lower and particular norms logically brings one to the
single original norm which gives validity to all others. This norm has been variously
called the "Apex Norm", the "Basic Norm", the Grund Norm", etc. Certain
interpretations equate the grundnorm to the Constitution but Kelsen's later works
show that this basic norm is wholly outside the pyramid of norms and it actually
provides that in each legal order "the constitution shall be obeyed".
[J. Stone, Legal System & Lawyers Reasoning, p. 104]
The Grundnorm has meta-legal and a self-dependent beginning. The basic norm not
only gives the fact that a norm has got a legal validity by being within a system of
norms but also guarantees its efficacy i.e. that men actually behave in a certain way
towards it, and suffer sanctions if they do not. Generally the definition of law within
the normative system of Kelsen does include that:
(i) law must consist of norms for human conduct;
(ii) such norms must lay down sanctions for the failure to observe
them;
(iii) such norms must be related to each other by their common "source" in
one "constitution" or apex norm in a way which allows us to designated them as a
system;
(iv) the apex norm must designate norm-creating authorities (the

legislature, judiciary, executive etc) so that the system of norms is dynamic;
(iv) this system must be by and large efficacious in terms of

conformity of members of society to the norms, and the regular execution of sanctions
forn non-conformity. (J. Stone, The Legal System and Lawyers Reasoning, p. 106).
See also
Page 127 of 163
O.B. Nwabueze, Nigeria's Presidential Constitution, 1979-83

Ch. 3.
What is the nature and origin of the Grundnorm from which other norms derive their
validity? Where does the Grundnorm derive its validity?
(1) A political scientist might refer to electors or public opinion.
(2) The Psychologist may refer to the socio-psychological support, behaviour

tendencies of submission to authority etc.
(3) The sociologist may refer to the orgnic or structural or institutional nature of
the social life.
But Kelsen as a Pure theorist, asserts that since the Grundnorm is the source of
validity it can neither be valid or invalid. The question as to the worthiness is a meta-
legal one (the Grundnorm in the legal logical sence). The Grundnorm is a necessary
hypothesis if one wants to build a logical normative order. Therefore, the Grundnorm
is the supreme reason by validity of the whole legal (system) order and its
constitutional unity.
The national legal order has a kind of hierarchical structure, with the Grundnorm at
the top. That norm consists in material sense rules regulating the creation of the
general legal norms, usually in statute form, also possibly by incorporating customs.
Such general norms may themselves further delegate powers of creating general or
individual norms, and such further norms may not only designate the law applying
organs, and procedure, but also set out limits to the judicial and administrative acts of
these organs.
When the latter organs act accordingly, they in their turn create individual norms,
applying the general norms to concrete cases. The process by which they are derived
from the apex norm, these successive levels of normative rules, are what Kelsen
Page 128 of 163
calles the CONCRETIZATION of the Legal System. The entire hierarchy, including
the process by which its contents are concretised is what is known as the Legal Order.
(J. Stone, The Legal System and Lawyers Reasoning, p. 111).
(Stone, "The Pure Theory of Law" in Stanf. L. Rev. (1965) 1139-1140.
SANCTIONS:
Sanctions are the foundation of the norm. Unlike J. Ausatin, the sanction is not
observable because of the subject's exposure to evil. The sanction is inherent in the
norm itself independent of a specific will which imposes an evil. All what is essential
is that the norm should express what ought to be done and impose a sanction
conditional upon it not being done. The difference between Austin's sanction and that
in Kelsen is that, in the former sanction comes from the command of a sovereign, in
the latter sanction springs from an impersonal grundnorm which embodies a
hypothetical judgement" the Ought. To Kelsen a legal norm is an ought proposition,
with a sanction attached, regardless of the will or motive either of those who issue it
or those who receive it. It is a "psychological" command. In the process of
concretization Kelsen goes beyond Austin. Kelsen shows that, the Grundnorm and its
derivative norms determine those which follow, by designating their source,
deliminating their contents or prescribing the procedure by which they are made.
Austin in his definition of law excluded norms which refer to single persons and those
rules for single occassions. In Kelsen's hierarchy of law, goes town to the very last
operation of legal executives and satisfaction of adjudgement. The process of
concretization of norms descends down to the most specific detail of the individual
case. Kelsen's definition of law is much wider it includes judicial actions,
administrative and executive actions, legislative, customs and even private contractual
actions.
DUTIES, LIABILITIES AND RIGHTS

Page 129 of 163
According to Kelsen a legal duty is only one way of looking at the legal norm. If a
norm is directed to a particular individual then he has a duty to carry it out.
According to Austin duty and Liability could only be inherent in one person for
example if one has a duty to exercise care, it is because he is liable in damages if he
fails in that duty.
However, Kelsen shows that, it is equally possible if we view law as an ought to

impose a duty upon A and the liability upon A. The best example is found in
primitive societies where it was common to find collective responsibility of the whole
blood group for an act of a single member. Other examples can be found in the
Employers Vicarious liability for the faults of his servants, or where a corporate entity
(state or company) is made liable and the liability is impossed on individuals etc.
(This division violates the sense of justice, is not fair to visit the sins of the fathers on
children).
Kelsen says within this system it is possible to derive duty and liability. Kelsen had
the same format on the conception of Right. A right must be what a norm confers on
a potential plaintiff. But he was not quite clear, that a duty was a necessary
correlative of Right since sometime a right could mean a "liberty" or a "privilege"
with no necessary duty.
From this theory of legal duties and rights, Kelsen gives a simple theory of legal
personality. The distinction between natural and juristic persons can not bring
problems in the normative system. This is because legal personality is merely a point
of operation of legal norms.
Q The natural person is the personification of the sum total of legal rules
applicable to one person. The legal coporate or juristic person is the personification
of the sum total of legal rules applicable to a plurality of persons.
Page 130 of 163
To Kelsen legal duties and rights can easily manifest themselves to Natural, corporate
and incorporate bodies.
Since these are the basis of social institutions, it is obvious that with Kelsen all social
personalities are created by law.
Kelsen sees contractual power as a law. Creating process and legal personality as the
meeting point of legal duties and rights, he also sees that the distinction between
public and private law untanable.
Contractual power merely means a physical person is allowed to make law, while
legislative power means that an institution of the state makes law. Both make law for
the society's or public interest and therefore there is no distinction between public and
private persons. All of them have the same status before the law. From denying the
distinction between public and private law Kelsen came to two conclusions:
(i) There cannot exist a sovereign as a personal entity. Within the

hierarchy of norms there can be no supreme legal persons who are not created by law.
The legislative, the statutory power of the individual to make a binding contract or a
will, comes from the GRUNDNORM.
Such an interpretation avoids Austin's problem of whether the
sovereign is bound by law. Here all members of the state are subject to law.
(ii) There cannot be a personal sovereign who is determinate. The STATE

according to Kelsen, is but a simple way of conceiving the Unity of the legal order,
just as a personal God is a simple way of conceiving the Unity of the natural order of
the Universe.
The distinction between state and law is only hypothetical. The state is
the general legal order and since the law regulates its own creation the foundation of
the state must be law.
CRITICISM OF THE PURE THEORY OF LAW

Page 131 of 163
(i) The Basic Norm or The Grundnorm: Uganda v Commission of Prisons ex.
Parte Matovu, [1966] EA 514.
- The State v Dosso, (1958) 2 PAKISTAN 2 pscr. 180.
- Madzimbamto v Lardner Burke, [1960] 2 SA 284; [1969] 1 AC 645.
- Lakanni and Kikchomoola v AG (Western State), in 20 & Co. LQ, 117.
- Sallah v AG in 20 & Co. LQ, 315.
- O.B. Nwabueze, The Nigerian Presidential Constitution 1979-83; Ch. 3.
In the above cases the formal logical method of Kelsen was questioned. The judges
attempted to apply the Kelsenian theory to fit a revolutionary situation - which
brought about a new order, to wit, a new Grundnorm. The main test was validity in
the determination of which the Grundnorm ceases to be pure.
The EFFECTIVENESS of the new constitutions as a normative order could not be

tested without investigation into social facts. If validity is conditioned on
effectiveness, then social evaluation is necessary.
- The Basic Norm cannot escape social impurities which Kelsen considers
irrelevant, the Basic Norm is HYPOTHETICAL. It is hard to believe that a science
needs such a necessary fiction. It is logical to say that the `Pure Theory' cannot claim
the status of a science since it is based on a fictious assumption. The factual basis of
law is thus negated.
- The very act of giving rank to legal norms implies social evaluation.
(ii) The Question of State Sovereignty and International Law:

Austin held that international law was not backed by direct sanctions,
it was more based on gentlemen agreements or the so called positive morality and
therefore it was not the province of jurisprudence.
Page 132 of 163
At the same time international law did not have a determinate political
superior, to Austin it was the vanishing point of jurisprudence.
Kelsen did not agree with Austin's propositions that there were no
sanctions in international law. He argued that under international law there were
coercive acts in the form of REPRISALS, ECONOMIC BOYCOTTS and RESORT
TO WAR. These are authorised under certain conditions as a reaction against
international law wrongs. Under this law sanctions are administered by the
complainant or plaintiff and not by the superior agency or government. The basis for
international law was international consensus. The principle binding nations being
PACTA SUNT SERVANDA.
The difficulty with the above proposition is whether or not there are
two Grundnorms one for Municipal law and the other for International law. If there
are two grundnorms his system cannot escape contradiction and it would also mean
that International law has a separate source when it is well known that such law must
be approved by Nation States. If there is only a single grundnorm within the nation
state, then International law would be part of the national legal order. Everyone
knows that this is not so because it is not derived sorely from the nation state.
(iii) Kelsen's theory of law was supposed to do away with the limitations of legal
positivism and sociological jurisprudence. The problem in both was that law was said
to be located in society. On the part of Positivism law came from a determinate
political superior: the sovereign. The sociological school maintained that law
emerged from society. Both could not escape the contradictions inherent in society
and consequently their theories could not have much wanted logic and formalism.
The roots of law in Kelsen's view were not society but the hypothetical world of
reason, which could not be determined empirically. The consequences being:
(a) There was no difference between law and state. The state was merely
a manifestration of the legal order.
Page 133 of 163
(b) His argument was not different from that of the Natural law lawyers.
If norms regulated their own creation then one would arrive at the absurd conclusion
that law created law. If Kelsen were to re-write the Bible he would have begun the
book of Genesis with the words "In the beginning there was the Grundnorm, the
grundnorm was with the norm and the ...". Mere fantasy.
(iii) Within that formulation it is possible to build a coherent, regirous and logical
system. But the capitalist world based on contradictions and in a state of crisis cannot
find much help in such closed systems. The ideological role of the Kelsenian Theory
is to defeat the Marxist theory of law as unscientific. And Kelsen was a severe critic
of the Marxist Theory as well as a leading anti-communist.
Kelsen's Philosophical Basis:
Kant dealt with the sphere of justice.

Kelsen dealt with the sphere of positive laws.
Kelsen a Neo-Kantia and Normativist. He stands to Kant as Austin to Bentham. For
Kelsen law manifests itself in the provice of positive law but internally it has a
Normative character: that of an ought. This is what Kelsen seeks to expound as a
normativist. According to Kelsen law as a formal and logical order exists
independent of factual considerations. In order to build the Pure Theory of law it was
necessary to make a distinction between ought and "is".
Normativism
Normativism in law a 20thC. Dominant bourgeois jurisprudence with emphasism the

structure of law. Normativism is a link of positivism with neo-Kantianism with the
aim of purging from law all foreign elements. It insists on the study of law itself.
Normativism maintains that it is not possible to evaluate law from social background.
A scientific theory of law must study law as it is. No evaluation of positive law is to
Page 134 of 163
be made. A legal scientist must not consider sociological data when analysing law as
a science. Law cannot be understood from political, ideological or other factors.
There is no relationship between law and morality.
Normativism is a theory of capitalist cricis employed to show that the bourgeoisie law
was in no way related to socio-political actions and thje realities of imperialism. The
jurist had to concentrate on the formal logical forms in which norms find expression.
Normativity is a principle according to which the science of law describes its object.
But normativity is not a property of the legal norm it is a methodological principle of
legal studies. It can be understood through the following expression:
... the legislator in his obligatory prescriptions equiped with sanctions may
proceed from any motives. But the moment thought (science) undertakes to regulate
this material, it arms itself with the ought category, and the legal material assumes the
shape of a logical derivative (judgement): "If there is A, then there ought to be B"
that is if the conditions are such, the consequences (sanction) linked with the culpa
òught to' must be such.
The ought is a category of transcendental logic, not an ethical idea. It is a category

introduced into law by consciousness, and serves to isolate law from the World of
social beings. It follows that legal propositions, in which the science must describe its
subject matter cannot be verified by turning to the physical World. That which ought
to be is not only independent but an antithesis of that which is.
Kelsen
Maintained that the sociological school of jurisprudence had brought into the study of
law aspects which made jurisprudence unpure. Adherents of the sociological
jurisprudence failed to recognise the normative content of law. It was not necessary
according to Kelsen to go to social facts in order to prove the validity of law.
Page 135 of 163
Kelsen felt that his theory had more unity with analytical jurisprudence than any other
theory. He didn't know of Austin until much later. Kelsen insisted that Sanctions
necessarily ought to follow the delict, Austin had argued that the sanction would
kprobably follow. Kelsen differed with Austin on the command Theory of Law.
Principal Deoctrines of the Pure Theory of Law:
1. According to Kelsen the aim of a theory of law, as any science, is to reduce

chaos and multiplicity of unity. That is a theory of law must be a Unified logical
system.
2. [A] legal theoy is a science and not volition (exercise of will, power of
willingness). It is knowledge of what is and not what law ought to be.
3. The law is a normative not a natural science.
4. A legal theory as a theory of norms is not concerned with the effectiveness of

a legal system (This can be left to sociology of law which is not a subject matter of
legal science).
5. A theory of law is formal, a theory of the way of ordering, changing content in

a specific way. An approach which makes legal science methodologically analytical.
This is because legal science deals with a priori categories which can be studied in a
purely formal scheme.
6. The relationship of a legal theory to a particular legal system of positive law is

that of possible to actual law. This is because the Pure Theory of law is just a scheme
of interpretation which serves as a framework for particular positive law. Knowledge
of Pure Theory is logically prior to knowledge of actual law.
Page 136 of 163
To Kelsen like Kant, knowledge of possibility proceeds knowledge of reality. Pure

Theory employs a prioristic critical theory of knowledge to develop the normative
structure underlying the actual legal system.
The Norm
According to Kelsen law can be defined as an aggregate or system of norms: As a

normative order. The norm means something ought to be or ought to be done. What
differentiatesa legal norm from other norms is that it is created by acts of human will.
The legal norm would only be recognised if it is part of the legal normative order.
But these relations cannot empirically be tested since a norm as an ought statement
does not have roots in the empirical world. Thus the norm can only be recognised
through the test of validity, i.e. its binding force for those whose conduct it governs.
For a norm to be valid there must be two requirements:
(i) that norm must be part of the system of norms;
(ii) the system of norms to which it belongs must be efficacious in the

sense that men actually do, "by and large" behave in accordance to the norm.
The validity of a norms cannot be merely factual, it depends mainly on its relation
with other, perhaps other higher norms. The process of going towards higher and
higher norms which give validity to lower and particular norms logically brings one
to the single original norm which gives validity to all others. This norm has been
variously called the Appex norm, the Basic norm, the Grundnorm, etc.
Certain interpretations equate the Grundnorm with the Constitution but Kelsen's later
works show that this basic norm is wholly outside the pyramid of norms and it
actually provides that in each legal order "the Constitution shall be obeyed".
Page 137 of 163
The Grundnorm is a meta-legal and a self-dependent beginning. The basic norm not
only gives the fact that a norm has got a legal validity by being within a system of
norms but also guarantees its efficacy, i.e. that men actually be have a certain way
towards it, and suffer sanctions if they do not.
Generally the definition of law within the Normative System of Kelsen does include
that:
(i) law must consist of norms for human conduct,
(ii) such norms must lay down sanctions for the failure to observe them,
(iii) such norms must be related to each other by their common source in one
constitution or appex norm in a way which allows us to designate them as a system.
(iv) The appex norm must designate norm-creating authorities (the

legislature, executive, judiciary) etc. so that the system of norms is dynamic.
(v) This system must be by and large efficacious in terms of conformity of

members of society to the norms, and the regular execurtion of sanctions for non-
conformity.
What is the nature and origin of the Grundnorm which other norms derive their
validity?
Where does the Grundnorm derive its validity?
(1) A Political scientist might refer to electors or public opinion.
(2) The psychologist may refer to the socio-psychological support, behaviour

tendencies of submission to authority.
Page 138 of 163
(3) The sociologist may refer to the organic or structural or institutional nature of
the social life.
Kelsen as a Pure Theorist asserts that since the Grundnorm is the source of validity it
can neither be valid or invalid. The question as to the worthness is a metal-legal one
(the Grundnorm in the legal logical sense). The Grundnorm is a necessary hypothesis
if one wants to build a logical normative order. Therefore, the Grundnorm is a
supreme reason of validity of the whole legal order and its constitutional Unity.
The National legal system has a kind of hierarchical structure, with the Grundnorm at
the top. That norm consists in Material sense: rules regulating the creation of the
general legal norms usually in a statute, also possibly by incorporating customs. Such
general norms may themselves further delegate powers of creating general or
individual norms, and such further norms may only designate the law-applyng organs,
and procedure, but also set out limits to the judicial and admininistrative acts of these
organs.
When the latter organs act accordingly they in their turn create individual norms,
applying the general norms to concrete cases. The process by which they are derived
from the apex norm, these successive levels of normative rules, are what Kelsen calls
CONCRETIZATION of the legal system. The entire hierarchical structure, including
the process by which its contents are concretized is what is known as the Legal Order.
SANCTIONS
Sanctions are the foundation of the norm. Unlike Austin, the sanction is not
observable because subjects experience evil. The sanction is inherent in the norm
itself independent of specific Will which imposes an evil.
Page 139 of 163
What is essential is that the norm should express what ought to be done and impose a
sanction conditional upon it not being done.
The difference between Austin's sanction and that in Kelsen is that, in the former
sanction comes from the command of a sovereign, in the latter sanction springs from
an impersonal grundnorm which embodies an hypothetical judgement the ought.
To Kelsen a legal norm is an ought proposition, with a sanction attached, regardless

of kthe Will or motive either of kthose kwho issue it or those who receive it. It is a
psycological command.
In the process of concretization Kelsen goes beyond Austin, Kelsen shows that the
Grundnorm and its derivative norms determine those kwhich follow by designating
their source, deliminating their content or prescribing the procedure by which they are
made. Austin his definition of law excluded norms which refer to singlek persons and
those rules for single occasions. In Kelsen's hierarchy of law, goes down to the very
last operation of legal excurtion and satisfaction of adjudgement. The process of
concretization of norms descends down to the most specific detail of the individual
case.
Kelsen's definition of law is which wider, it includes judicial actions, administrative,

exekcutive, legislative actions, and customs and private contractual relations.
DUTIES LIABILITIES & RIGHTS
According to Kelsen a legal duty is only one way of looking at a legal norm. If a
norm is directed to a particular individual, then he has a duty to carry it out.
According to Austin a duty and liability could only be inherent in one person for
example if one has a duty to exercise care, it is because he is liable in damages if he
fails in that duty. However, Kelsen shows that it is equally possible if we view law as
an ought to impose a duty upon A and the liability upon A.
Page 140 of 163
The best example is found in primitive societies where it was common to find
collective responsibility of the whole blood group for an act of a single member.
Other examples can be found in the employer's vicarious liability from the faults of
his servants, or where a corporate entity (state or company) is made liable and
liability imposed on individuals etc. This division violates the sense of justice, (it is
not fair to visit the sins of the father on children).
Kelsen says within this system it is possible it is possible to derive duty and liability.
Kelsen had the same format on the conception of rights: A right must be what a norm
confers on a potential plaintiff.
Kelsen is not quite clear, whether a duty is a necessary correlative of right, since a
right sometimes could mean a liberty or a privilege with no necessary duty. From
Kelsen's Theory of legal duties and rights he gives a simple theory of legal
personality. The distinction between natural and juristic persons cannot bring
problems in the normative legal system. This is because legal personality is merely a
point of operation of legal norms.
The natural person is the personification of the ksum total of legal rules applicable to
one person. The legal corporate or juristic person is the personification of the sum
total of legal rules applicable to a plurality of persons. To Kelsen legal duties and
rights can easily manifest themselves to natural corporate and incorporate bodies.
Since these are the basis of social institutions, it is obvious that with Kelsen all social
personalities are creatures of the law.
Kelsen sees contractual power as a law-creating process and legal personality as the
meeting point of legal rights and duties, he also sees that the distinction between
public and private law is untanable. Contractual power merely means a physical
person is allowed to make law, while legislative power means that an institution of
the state makes law. Both make law for society's or public interest and therefore there
Page 141 of 163
is no distinction between public and private persons. All of them have the same status
before the law. From denying the distinction between public and private law, Kelsen
made two distinctions:
(1) There cannot exist a sovereign as a personal entity. Within the hierarchy of
norms there can be no supreme legal persons who are not created by law. The
legislature, the statutory power of the individual to make a binding contract or a will,
comes from the Grundnorm. This intepretation avoids the Austinian problem whether
the sovereign is bound by law. In the Kelsenian scheme all members of the state are
subject to law.
(2) There can not be a personal sovereign who is determinate. The STATE,
according to Kelsen, is but a simple way of conceiving the Unity of the legal order,
just as a personal God is a simple way of conceiving the Unity of the Natural Order of
the Universe. The distinction between state and law is only hypothetical. The state is
the general legal order and since the law regulates its own creation, the foundation of
the state must be law.
Kelsen's Theory and the National Legal System
Characteristics of a national legal system

- hierarchical structure: Grundnorm at the top
- Norm consists in Material Sense:
* rules which regulate the creation of general legal norms in a
state.
* these rules might as well recognise customs;
* rules or general norms delegate powers of creating general or
individual norms;
* norms which designate the law applying organs;
* norms which provide for procedure
Page 142 of 163
* norms setting limits to judicial and administrative acts of these

organs
* In acting accordingly the latters organs create individual norms
(presedents)
* The process of deriving power at successive levels of
normative rules is known as CONCRETIZATION of the legal system.
* The hierarchical structure + the process by which its contents
are concretized = the legal order.
Kelsen's Pure Theory of Law Controversy
The Relationship between the Old and New Legal Order in a Revolutionary situation
is made under two notions:
(1) de facto (2) de jure
A fine distinction of the two terms was laid down in the judgement of Bankes LJ. in
AKSIONAIRNOYE OBSCHESTVO DLIA MECNANICH ESKOYI OBRABUTKY
DIEREVA (1) A.M. LUTHER V JAMES SAGOR AND CO. [1921]3 KB 532 at 543.
Wheaton quoting from Monutague Bernard states the distinction between a de jure
and defacto government thus (1) À de jure government is one which, in the opinion
of persons using the phrase, ought to possess the power of sovereignty, though at the
time it may be deprived of them.
A de facto government is one which is really in possession of them, although the

possession may be wrongful or precarious'.
In fact the term de facto government and effective government are the same as was
stated by Lord Atkin in ARANTZAZU MENDI [1939] AC at 264:
By exercising de facto administrative control or exercising effective

administrative centrol, understand exercising all the functions of a sovereign
government, in maintaining law and order, instituting and maintaining courts of
Page 143 of 163
justice, adopting or imposing laws regulating the relations of inhabitants of the

territory to one another and to the government.
The two concepts are discussed in relation to the legality of sum this Regime in
Rhodesia, and the legality of the Constitution of Uganda in 1966 etc.
Kelsen's Major propositions on the Change of the Basic Norm because of a

Revolution.
(iii) Why the constitution is valid is because the Old order (Institution - the first
historically) was laid down by an individual usurper or by some kind of assembly.
The validity of which is the last presupposition, the final postulate, upon which the
validity of all norms of our legal order depends.
The document which embodies the first constitution is a real

constitution, a binding norm, only on the condition that the basic norm is presupposed
to be valid. All legal norms belong to one and the same legal order because their
validity can be traced back - directly or indirectly to the first Constitution.
(1) the Basic Norm and the Constitution.

(2) the principle of Legitimacy
(3) Change of the Basic Norm.
(4) the Principle of Effectiveness
1. The Basic Norm and the Constitution
Norms of legal order are derived from the Basic norm, and this is illustrated by
showing that a particular norm has been created as stipulated by the superior norm.
Page 144 of 163
Validity of Detention -
(i) The fact that one individual deprives another individual of his freedom
by putting him in jail is a legal act because it has been prescribed by the individual
norm.
(ii) As to why this individual norm is valid as part of a definite legal order,
is because it has been created in conformity with a criminal statute. This statute
finally receives its validity from the Constitution, since it has been established by the
competent organ in a way the Constitution prescribes.
1. State v Dosso - in Pakistan 1958

(2 P.S. CR 180)
- Oct 7, 1958 the then President of Pakistan declared Martial Law by
Proclamation throughout Pakistan.
- The Proclamation of Martial law annulled the Constitution of Pakistan of

March 23, 1956.
- The Central Provincial Assemblies were dismissed a Commander in Chief of

the Army as Chief Martial Law administrator was appointed.
- Three days later the President promulgated the Laws (Continuance in Force)
Order, which made all existing laws invalid (except the annulled Constitution) which
were in force before the proclamation; and restored the jurisdiction of all courts
including the Supreme Courts and High Courts. The said Order Changed the name of
the Republic.
- All orders and judgements given by the Supreme Court between the
proclamation and the promulgation of the Order were invalidated, meaning that no
writ in order of a writ issued or made after the proclamation was effective unless it
Page 145 of 163
was provided for in the Order. All applications and proceedings in respect of any writ
not provided for abated on the basis of that Order.
- At the same time there were appeals brought before the Supreme Court. The
questions involved were:
(1) Whether the Writs issued by the High Court in respect of Orders of release to
a Council of Elders, or convictions under S. 11 of the Frontier Crimes Regulations,
1910 were valid on the ground that they were repugnant to Art. 5 of the Constitution,
1956 which a based by reason of Clause 7 Art. 7 of the Laws Continuance in Force)
Order.
(2) What was the effect of the proclamation and Order on the writ on the
jurisdiction of the High Court including pending applications of writs and writs
already issued which were subject of appeals in the Supreme Court?
In dealing with this problem the Supreme Court applied the Kelsenian Principles and
the maxima acto persondus monitur cum persona (A personal right of action dies with
the Person). The court held that the President's proclamations of October 7, 1958
Constituted a Revolution which was victorious, constituted a new legal order, new
law creating organ, was internationally recognised by virtue of having become a basic
law creating fact.
2. Uganda v Commissioner of Prisons Ex Parte Matovu, [1966] EA 514 - Sir

Udo Udoma CJ. & Jeffreys J.
- Up to 1966 Uganda was a federal state comprising of several other states

Kingdoms and non-kingdoms, districts which constituted the sovereign of Uganda.
- Power of the central government was shared the districts, the petty bourgeoisie
and the bureaucrats.
Page 146 of 163
- There developed a silent class struggle between the various groups. The petty
bourgeois controlled power under Obote (then Prime Minister) and the Anstrocrats
under the Kabaha (then President).
- Matovu was first arrested and detained at Masindu Prison purportedly under
the provisions of the Deportation Ordinance on 22nd May, 1966. He was
subsequently transferred to Luzira prison where he had been told that he had been
released on 16th July, 1966.
- Immediately after his release, he was re-arrested when he was still in the
prison compound and was detained at Upper Prison Luzira. On 11th August, 1966 a
Detention Order, under the Emergence Powers Detention Regulations, on the ground
that he had acted or was likely to act in a manner prejudicial to public safety and
maintainance of public order. The notification of his detention was published in
Uganda Gazette as General Notice No. 832 of 1966 dated 19th August, 1966. For a
considerable time he was not allowed to see his advocate at all, and when he came to
see him, the advocate was not allowed to consult with him except in the presence of
Police and Prison officers.
- Matovu's advocate, one Mr. Mayanja filed a Writ of Habeans Corpus to the
High Court of Uganda contending inter alia, that the detention was unlawful or
illegal.
------------------------------
1. Mabere Nyancho Marando and Edwin Mtei v. The Attorney General, Civil
Appeal Case No. 168/93 (Unreported) (H.C), Makanja, J.
2. Republic Vs. Mbushuu & Dominic Muyarofe & Kalai Sangula, Criminal
Session Case No. 44 of 1991 (Unreported (H.C) Mwalusanya, J.
_
Page 147 of 163
CHAPTER VIII
THE HISTORICAL SCHOOL OF LAW:
Literature:
H. Kantorowicz "Saviguy nd the Historical School of Law" [1937] 53 LQR 326-343.
J. Stone, Social Dimensions of Law and Justice (1966), pp. 86-89, 101-111.
F.K. Von Saviguy, System of Modern Roman Law, (English Translation by W.

Holloway (1867)).
Sir Henry Maine, Ancient Law, 10th Ed. 1884.
R.P. Sharma, Modern Western Political Thought, Vol. I & II Sterling Publishers (P)
Ltd Delhi 1974 Ch. 15 (pp. 361-381).
Paul Vinogradoff, "The Teaching of Sir Henry Maine" in Vol. 20 LQR (1904) 119-
133.
THE HISTORICAL SCHOOL
The Historical School - a reactionary trend in the science of history and law that
appeared in Germany late in the eighteenth Century.
- Karl Marx/F. Engels, Selected Works Vol. I Moscow 1976 p. 311 fn. 159.
A movement against Natural Law, which rejected Universalism of the French

philosophers. It stressed the unique character of every historical period, civilization
Page 148 of 163
and nation. Herder maintained that every nation possessed its own individual
character and qualities which develop free for each national spirit (Volksgeist).
- Lloyd/Freeman 1985 pp. 866-867.
A school of thought which became very popular with both German and English jurists
of the 19th century. (a) Influenced by the rise of great libraries, museums, and
universities with vast collections of source materials. (b) The 19th century historical
and legal scholarship was deeply impregnated with scientific spirit (scientific
developments of the earlier century).
Jurists devoted themselves to the quest for judicial truth.

Why the Use of the Historical Method?
The Historical method as part of the general reaction against the artifieval theory of
natural rights and social contract. The historical method asserted the value of deeply
rooted custom and gradual development, in place of a theory of an ideal system
universally valid.
In Germany the historical method was allied with national patriotism and
improvement in legal education. It maintained that law was formed gradually by
custom and popular feeling and that it expressed the life of the people and not the will
of the law-giver. There was a difference between the German and English jurists.
The difference appeared both in premises and conclusions.
The Anglo-American historical approach emphasized custom and tradition in the

formation and development of laws. The German historical school was influenced by
Hegalian or Semi-Legalian background in that both laws and customs were seen as
concrete embodiments of the Volksgeist or the national spirit. Thus the German
writers of the Historical School tended to emphasize nationalism, etatism and
authoritarianism. The view that custom was itself a legislative expression of the
Page 149 of 163
sovereign will of the people and that it was law because it was the general expression
of a general consciousness of right was put forward.
The English School was influenced by positive law. It admitted the customary rights
of the content of law but refused the legal validity of national custom until they were
willed and given legal form by the national legislature or judiciary.
Both the German and English jurists maintained that law is found and not made.
The historical school of jurisprudence stands in opposition to both the analytical and
natural or philosophical schools of law. The historical jurists pointed out that in early
times law had nothing to do with the definite commands of a definite sovereign. Law
arose as an embodiment of customs and traditions of the community. Even in
England where the common law, based upon precedents, customs and traditions were
more important than statute law. The historical school empphasized that law, to be
healthy must be a growth or an unconscious development, rather than be a product of
the conscious will of a person or a group of persons at any particular time. [pp. 362-
363]. The Historical School did not refute the idea found in Natural Law that law was
found not made.
According to the Historical School the so-called Natural laws are not really universal
because they differ from one century to another. [p. 364].
Examples which negate the Idea of a Universal Natural Law:
- A Universal natural law is unconceivable because the Natural law of Europe

looks at monogamy as the only valid and natural form of marriage, whereas natural
law of Africa and Asia looks at polygamy as equally natural and valid; still some
communities regard polyandry almost natural and valid form of marriage.
Page 150 of 163
- These examples show that there is no Universal natural law kwhich is

deducible in marriage. How can it be possible to have a natural law governing the
rest of mankind in every aspect of their lives?
- All members of the historical school were conservative, reactionary and

traditionalist.
They were opposed to change and reform methodologically - especially Sir Henry
Maine (Described by Paul Vinogradoff in "The Teaching of Sir Henry Maine" Vol.
20 LQR 119 at 132).
Sir Henry Maine's. Ancient Law.
"From Status to Contract."
The Historical School:
Lloyd, Ch. 9.
Friedmann, Ch. 18-19.
Stein, Peter, Legal Evolution: The Story of an Idea, London 1980.
Von Saviguy, F.C. On the Vocation of Our Age for Legislation and Jurisprudence,
2nd Ed. trans. A Hayward Little wood & Co. 1831).
Pudita, G.P. Outlines of the Science of Jurisprudence, Trans. W. Hastre, T & T.

Clark Edinburg 1880).
H. Maine, Ancient Law, (ed. Pollock, John Murray 1930).
Summer, W.G. Folkways: A Study of the Sociological Importance of Usages,

Manners, Customs, Mores & Morals, The Athenian Press 1907.
Page 151 of 163
The Historical School
Sir Henry Maine, Ancient Law, London 1861 (1917) Dent pp. 3-4, 110-111, 147-
151.
From Status of Contract.
- Before a fully developed conception of law or rule of life there were according
to Homeric words (Homer - A Greek Poet). "Themis" and "Themistes"
"Themis" in later Greek pantheon was the Goodless of Justice. Themis
described in the Iliad was a successor of Zeus. In the Early days men made account
of sustained or periodically recurring action by supposing a personal agent. The wind
blowing was a person, a divine person; the sun rising, culminating, and setting was a
person, a divine person; the earth yielding her increase was a person and divine. It
was the same for the physical world as for the moral.
When a king decided a dispute by a sentence the judgement was assumed to be a

result of direct inspiration. The divine agent suggesting judicial awards to kings or
gods, and the greatest of Kings was Themis. The peculiarily of the conception was
brought about by the use of the plural. Thennisons Themises, the plural of Themis -
meant the awards themselves which were divinely dictated to the judge. Kings were
seen as castodians of Themistes ready to hand for use, but these should not be taken
for laws, they were judgements. Zens the human king on earth was not a law-maker
but a judge. He was provided with Remistes - as isolated judgements.
This was the germ of custom - the Homesic word for a custom is Themis in singular
and Dike whose meaning fluctuates between judgement and a custom or usage.
The Term Neous, a law, was famous in the political vocabulary of Greece of a later
period.
Page 152 of 163
Quoting from Hommer's Odyssey
"They have neither assemblies for consultation nor themistes, but every one
exercises jurisdiction over his wives and his children, and they pay no regard to one
another."
Men are first seen distributed in perfectly insulted groups, held together by obedience
to the parent. Law is the parent's word. Early legal conceptions are characterised by
a despotic fathers commands, which proceeded from a sovereign and pressupposed a
union of family groups in some wider organisation.
Society in primitive times was not what it is assumed to be at present a collection of

individuals. It was an aggregation of families. The basic unit of an ancient society
was the Family (while that of the modekrn society is an individual).
Infancy of Jurisprudence:
The civil laws of states first make their Themistes of a patriarchal appearances
sovereign - Themistes developed from irresponsible commands of the head of the
family addressed to his children, wives and slaves.
After the formation of a state - the laws extremely of a limited application. Whether
they are Themistes (in primitive form) or customs (advanced condition) or Codes -
they bound families and not individuals. Ancient Jurisprudence is comparable to
International Law - filling the interstices between the great groups. In such
communities the legislation of assemblies and the jurisdiction of the courts -
addressed to heads of families. The rule of conduct for every individual is the rule or
law of his khome, of which is parent is the legislator.
Page 153 of 163
Enlargement of civil law - through the agents of legal change - Fiction, Equity, and
Legislation - these affect the primeval institutions - every point of progress - greater
number of personal rights and larger amount of property is removed from the
domestic form into cognisance of the public tribunals.
Gradually the ordinance of the government begins to affect private transactions -

estates. This is exemplified by the anuals of Roman law - with a complete history of
the crimbling away of archenic institutions and the formation of new institutions.
These new institutions being a combination of the old which survives to the modern
and others destroyed or corrupted by contract with new races or societies.
At the Final Construction by Justinian -
Principles of convenience, or of symmetry or of simplification - new principles

emerged. A new morality has displaced the canons of conduct and the reasons of
acquiescence which were in union with ancient usages, because they are born of
them.
The movement of progressive societies has been uniform only in one respect -
Through all its course it has been distinguished by the gradual dissolution of the
family dependency, and the growth of individual obligation in its place. The
individual steadily substituted the family as a unit which is taken into account by the
civil laws.
It is not difficult to see what ties between man to man which replaces by degrees
those forms of reciprocity in rights and dujties which have their origin in the family.
It is contract.
Starting from one terminus of history, from a condition of society in which all the
relations of persons are summed up in the relations of Family, we seem to have
Page 154 of 163
steadily moved towards a phase of social order in which all these relations arise from
the free agreement of individuals.
- Thus the status of the slave disappeared it has been superceded by the
contractual relations of the servant to his master.
- The status of the Female under Tutelage, if the intelage be understood of

persons other than the husband, ceased to exist; from her coming of age to her
marriage all the relations she may form are relations of contract.
- The status of the son under the power has no true place in the law of Modern
European societies. If any civil obligation binds together the parent kand child of full
age, it is one which only contract gives its legal validity.
Exceptions:
The child before years of discretion, the orphan under guardianship, the adjudged
lunatic, have all their capacities and incapacities regulated by the law of persons.
Why? Because the classes of persons just mentioned are subject to extrinsic control
on the ground that they do not possess the faculty of forming a judgement on their
own interests, they are wanting in the first essential of an engagement by contract.
The word status may be used to construct a formula expressig the law of progress
which has been described above. Status is used to signify those personal conditions
only. The movement of progressive societies has hitherto been a movement from
status to contract.
P. Vinogradoff's comment on Sir Henry Maine:

Page 155 of 163
1. The study of law is not merely a preparation for professional duties and an
introduction to the handling of professional problems. It may also be treated as a
scientific subject.
2. Two methods of scientific investigation may be applied to the study of law:

the method of deductive analysis on the basis of abstractions from the present state of
legal ideas and rules, and the method of inductive generalization on the basis of
historical and ethnographical observations.
3. In the domain of indusctive jurisprudence, law appears as one of the

expressions of history, and history is taken in the wide sense of all knowledge relating
to the social evolution of mankind.
Qs.
1. What does Maine mean by "Themistes"? by "Status"?, by "Contract"? by
"progressive societies"?
2. Maine certainly saw a fundamental change that was occuring in law. The
question is, why did it occur? One of the reasons of this cause is that law, that is, its
basic postulates, change in response to material conditions - the mode of production
and the changes in economic relations between people that result from this.
Read: Karl Marx, Pre Capitalist Economic Formations, London 1964 pp. 96-99.
Jack Wodis, Africa: The Roots of Revolt, London 1960 pp. 7.
P. Bohannan, "Land Use Land Tenure and Land Reform" in Herskorites & Herwitz,
Economic Transition in Africa, pp. 135-136, 137-140, 148-149.
N.J. Janieson, "Status to contract - Refuted or Refined" in Cambridge L.J. [1980]

333-359.
Page 156 of 163
4. In so much as every science ought to be directed to the discovery of laws, that

is general principles governing particular cases, the historical method of jurisprudence
is necessarily a comparative one. [p. 132].
Probably it was through the comparative methods that they distinguished one nation
from another. Herder maintained that every historical period, civilization and nation
had unique characteristic. Every nation possessed its own individual character and
qualities. Non is intrinsically superior from the other.
According to Lloyd/Freeman Herder may have been influenced by Vico. Herder's

main concern was a new approach to history as the life of the communities. Herder
believed that cultures and societies developed their own values rooted in their own
history, traditions and institutions. The quality of human life and its scope for self
expression resided in the plurarity of values, each society being left free to develop in
its own way. These were the roots of the great German historical school of the 19th
century - one offshoot of which was the historical school of jurisprudence associated
with the name of Saviguy. [p. 868].
F.K. Von Saviguy (1779-1861)
A very good picture of K.F. Von Saviguy is to be found in H. Kantoronicz article

published in 1937 in the Law Quartely Review bearing the title "Saviguy and the
Historical School of Law". It contains important background information about
Saviguy his contemporaries, abilities, weaknesses and khis contribution to scholarship
in Germany of his time.
Kantowicz presents F.K. Von Saviguy as a great scholar, who taught Rudolf Von
Ihering. He compares him with Goethe in that both Goethe and Saviguy came from
wealthy Protestant families, and particularly Saviguy came from a race of feudal
Page 157 of 163
nobles, both were born at Frankfurt. Both harted revolutions, served princes who
were their former pupils.
Saviguy taught at Marburg University and while at that University he wrote "Rechts
des Besitzes". Later he taught at Heidelberg and the University of Berlin where he
became a Vice Chancellor (Rector). He was head of the historical school and used his
influence to exclude from the university adherents of other schools, or personal
adversaries even if they were of high merit. He dominated the German Faculties till
long after his death.
The Starting point of his Historical School:
The starting point of Saviguy's Historical School was his celebrated pamphlet:
"Ueber den Bernf Unserer Zelt Jur Gesetzgebung und Rechtswissenschaft" which was
published in 1814:
It was directed against Thibant who was then the head of the so-called philosophical
school. Thibant, an eminent jurist of his time and recognised at Heidelberg
University, had kput forward a proposal for the codification of German law on the
Model of Napoleonic codes then operating in Prussia. Saviguy disfavoured the idea
and launched his attack:
"The unhistorical school of natural law kwhich had until now held the field
believes that law could arbitrary be produced by the legislator at any given moment.
The historical school teaches that the contents of law are necessarily determined by
the whole past of the nation, and therefore cannot be changed arbitrarily. Thus, like
the language, the manners, and the constitution of a nation, all law is exclusively
determined by the nation's peculiar character by what is called the Volksgeist. Like
language, manners and constitution, law has no separate existence, but is a simple
function or fact of the whole life of a nation". [p. 332].
Page 158 of 163
Law is always organically connected with the development of social life. It

arises from salient, anonymous, forces, which are not directed by arbitrary and
conscious intention, but operate by way of customary law. [Lloyd/Freeman 1985 p.
868-869].
Legislation transeends the ability of the young as well as declining nations,

and nations in their prime neither need not care for legislation; only the writing down
of the existing customary law or decisions of controversial questions, perhaps in the
form of provisional decreeks or purely political legislation should be permissible.
History alone, Saviguy declared, is the road to the understanding of our own
conditions. [pp. 332-333]. Critique of the Volksgeist Lloyd/Freeman 1985 p. 869-
870.
* H. Kantorowicz, "Saviguy and the Historical School of Law" in Vol. 53 LQR

326-343.
- Known to have been a great scholar: Friedrich Carl Von Saviguy (1779-
1861).
- taught Rudolf Von Ihering
Saviguy's works:
1. "Recht des Besitzes"
2. "Systemdes hentigen romischen Rechts"
3. "Obligationenrecht"
- Comapred with Goethe (p. 328)

both came from wealth Protestant families Saviguy came from the race
of feudal nobles, born in Frankfurt... Both hated the revolution; served their princes
who were their pupils;
Page 159 of 163
- Saviguy taught at Marburg University where he wrote "Besitz"

- taught at Heidelberg
- University of Berlin - Vice Chancellor (Rector)
- Head of the Historical school (used his influence to exclude the adherents of
other schools or personal adversaries, event of high merit)
* Dominated the German Faculties of Law till long after his death.
The starting point of the historical school

- Saviguy's celebrated pamphlet
"Cleber den Beruf unserer Zeit fur Gesetzgebung und Rechtswissenschaft"
published in October 1814.
Directed against Thibant, the head of the so-called philosophical school. Thibant an
eminent junist, recognised at Heidelberg University - had put forward a proposal for
the codification of German law - on the Napoleonic model (Code Napoleonic used in
Russia). Saviguy did not favour this idea:
The unhistorical school of natural law which had until now held the field
believes that law could arbitrary be produced by the legislator at any given moment.
The historical school teaches that the contents of the law are necessarily determined
by the whole past of the nation, and therefore cannot be changed arbitrarily. Thus
like the language, the manners, and the constitution of a nation, all law is exclusively
determined by the nation's peculiar character by what was later callesd the
Volksgeist. Like language, manners and constitution, law has no separate existence,
but is a simple function or fact of the whole life of a nation." [pp. 332].
Law is always organically connected with the development of social life. It

arises from silent, anonymous forces, which are not directed by arbitrary and
Page 160 of 163
conscious intention, but operate in the way of customary law. Legislation transcends
the ability of young as well as of declining nations, and nations in their prime neither
need nor care for legislation; only the writing kdown of the existing customary law or
decisions of controversial questions perhaps in the form of provisional decrees, or
purely political legislation should be permissible.
History alobne, Saviguy declared, is the road to the understanding of our own
conditions. [pp. 332-333).
Greatest opponent of Saviguy was Hegel who in a public lectures in Berlin on the
philosophy of law declared that:
"Saviguy, by rejecting legislation, has put on the nation and its jurists, one of
the greatest insults that kcould be imagined." 9p. 334).
The Theory of the Volksgeist - corresponded with the trend of thinking in Germany
(violent attach on the code civil & French jurisprudence). Germany was just
embarking on her grand period of historical scholarship... law was proclaimed to be a
purely historical discipline.
Sir Henry Maine
Paul Vinogradoff, "The Teaching of Sir Henry Maine" in Vol. 20 LQR 119-133.
1. The study of law is not merely a preparation for professional duties and an
introduction to the art of handling professional problems. It may also be treated as a
scientific subject.
2. Two methods of scientific investigation may be applied to the study of law:

the mekthod kof deductive analysis kon the basis of abstractions from the present
state of legal ideas and rules, and the method of inductive generalization on the basis
of historical and ethnographical observations.
Page 161 of 163
3. In the domain of inductive jurisprudence, law appears as one of the

expressions of history, and history is taken in the wide sense of all knowledge as to
the social evolution of mankind.
4. Insomuch as every science ought to be directed to the discovery of laws, that

is general principles governing particular cases, the historical method of jurisprudence
is necessarily a comparative one. [p. 132].
Del-Vecchio, Philosophy of Law, The Cathlic University of America Press,

Washington 1953 pp. 121-134.
- Historical School Three Trends

(a) The politico-historical approach of the theoreticians of Restoration,
(b) The philosophico-historical approach of schelling and Hegel,
(c) The juridico-historical approach or the Historical School of the

German Jurists.
According to the politico-historical approach law is not something abstract which can
be discovered deductively, thought out by the mind of just any man. Law is instead
an historical fact which presupposes a long elaboration and which must,
consequently, be handed down from generation to generation. Political constitutions
must have a secure foundation in tradition. They cannot be created or reformed ex
noro by the work of individuals thinkers or by that of a group of doctrinaires. [p.
122].
Law, according to Hegel is the existence of free will, in other words, it is liberty
which establishes itself externally. It is the external existence of liberty. The will of
man is essentially free. [p. 127].
Page 162 of 163
The Historical School of Law.
It drew some of its formulae from the theories of schelling and Hegel. In part it was
determined by the reaction to the French Revolution. Inspired by the Englishman
Edmund Burke (1729-1797) who wrote "Reflections upon the Revolution in France in
1790 attacking the theories of law of Nature School especially those of Ronssean.
According to Edmund Burke political institutions are founded on history and
traditions of each people.
The true leaders of the Historical School were Hugo, Saviguy and Puchta. Hugo, G.,
1764-1844); F.K. Von Saviguy (1779-1861) who attached Thibant's work entitled:
"Uber die Notwendigkeit eines allgenieinen burgerhchen Rechts fur Deutschland" -
in which Thibant had advocated that German states be unified through laws in a
single code.
The idea of codification was not new. Experiments had been carried out in the Italian
States, Russia, Austria and France where the Civil Code had been prepared during the
revolution. Thibant represented such an idea in Germany.
Opposing Thibant's views Savigny wrote:
"Vom Beruf unserer Zeit fur Gesetzgebung und Rechtsnissenschaft",

published in 1814.
Saviguy not only opposed codification but also to a certain point legislation in
general, because in his view laws or codes are the crystallization of law. They
constitute something dead, which impedes its ulterior development.
Law according to Saviguy, lives above all practice and in custom which is the
immediate expression of the popular juridical consciousness. This popular juridical
Page 163 of 163
consciousness is derived from Schelling and Hegel. To the Historical School every
people have a spirit, a soul of its own, which is reflected in a manifold series of
manifestations; morals, law, art, language, are all spontanneous and immediate
product of the popular spirit, the Volksgeist. [p. 131].

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Page 1 of 163

LECTURES ON PHILOSOPHY AND JURISPRUDENCE

ESSENTIALS OF SCIENTIFIC THEORY OF LAW:

- Concept of Dispute Processing

- mediation, arbitration, conciliation

Dr. M.C. Mukoyogo

JURISPRUDENCE OR LEGAL THEORY OR

No General agreement as to the definition.

Views of William Twining

What Jurisprudence deals with

- examination and classification of ideas and theories, analysis on the basis of

- Jurisprudence as a mode of thought is traceable from PLATO and

What are the main tenents of a scientific Theory of Law?

- Theory of Law, what is law? What are the sources of Law?

- Theory or concept of a legal system

There exist no agreement as to what jurisprudence is. According to William

The Nature and Scope of Jurisprudence:

Jurisprudence is much more than a technique, it embraces history, economics,

The Relevance of Jurisprudence

The Various Schools or trends in Jurisprudence.

Presentation of the subject-matter of jurisprudence will commence with the

Savagery Hunting Collective Mythology

Barbarism Agriculure Specialised

1. Lloyd of Hampstead & Freeman, MDA, Lloyd's Introduction to

2. William Twining, "LL.M. Jurisprudence and Legal Theory 1986-87"

4. Ronald Dworkin, Taking Rights Seriously, Duckworth 1981, Chapter 1.

PHILOSOPHY AND ITS ORIGINS

Mode of production of material life

(iv) all theoretical outbooks - to be comprehended through material

3. Recognition of the supremacy of matter over mind (spirit, thought,

4. Matter is in a state of motion and change.

The study of the essence of laws of change:

the laws of dialectics rest on the principle of contradiction

7. Man and the Animals

Man is conscious of his environment as separate from himself, as an object of

8. What does labour for production Involve?

- the conscious organisation of man's action on nature;

- Labour is social in production because men act on nature as well as on

- Human consciousness is not merely a relationship between the

At first his knowledge was confined to external appearances of things. This

The advance from perceptual knowledge based on sense impressions, to

The advance from perceptual to rational knowledge is effected through the

The process of forming simple concepts begins in children as soon as

10. Primitive Thought

- discermible in children (childlike)

- In opposition with Civilised thought it is concrete, subjective, deficient

- It corresponds to the lower level of social practice.

11. Features of Primitive Thought

(i) the Associative complex manifested in the grammatical category

The Association Complex:

a phenomen first identified by Vygotsky later followed by Parvlov (Children and

- At first the grouping is wholly subjective based on superficial sense

- With further practice, the child begins to recognise certain objective

- The process of thinking in complexes underlay certain grammatical categories.

- A feature common to all languages of the world is the existence of

- The category of gender is related to distinction of sex, the distinction is in no

- Historically, at an early stage the category gender was a faithful reflection of