Jurisprudence II Module - LL442 (LL38)

MODULE LL 38 / LL '-+ 4 '2..
JURISPRUDENCE II
KUL USIKA S.E

LLB (KHATOUM) LLM (LEIPZIG)
FIRST EDITION 2008
©ZAOU
ISBN
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·1 THE CENTRAL THEME OF LEGAL

ENTERPRISE - 'I
(A) TOPIC The nature and functions Law - 1
SECTION 1 The nature of lavv - 3
SECTION 2 The function of Law - 10
(8) TOPIC The Analysis of Law - 17
SECTION 1 Law and morals - '18
SECTION 2 Law and rights - 20
SECTION 3 Law and justice - 23
SECTION 4 Law and democracy - 35
2 JUD!CiAL PROCESS - '<0

vv
(A) TOPIC Adjudication - 40
SECTION 1 Discretion and reasoning
SECTION 2 Stare decisis and precedent - 46
(B) TOPIC !nterpretation - 48
SECTION 1 Statutory interpretation - 49

(a) legislature's intent - 50
(b) Textualism - 53
SECTION 2 Constitutional interpretation

(a) The original meaning
Open texture
PREFACE
This is modu!e !I on the philosophy of Law. lt is complementary to Module 1. It

is to be recalled that Module 1 dealt with some introductory aspects of legal
studies designed for undergraduate Law students. In module II issues raised in
module 1 are pursued further by way of clarification of some of the major topics
that provide illuminating insights into the nature, qualitv and functions of Law.
a dealing the philosophy of Law abstraction can hardly be avoided.

Mode! II too much abstraction has been minimized, but the orthodox themes
of lega! philosophy have been related to the concerns of contemporary society.
.As such, the Module opens a consideration of the nature and functions of
Law. It then tackles the intricate issues of the relation of Law democracy;_
justice, morality and rights. the second part (Unit 2) of the Module, sketch
the judicial processes is set out by offering selective subjects that raise some
philosophical issues of relevance to the purpose at hand.
The main aim of this Module is to expand the debate initiated Modu!e 1, but
without an attempt be comprehensive in the coverage of competing doctrines.
As a result much more important topics have been left out, which topics tlle
student should not ignore.
The author and the Zambian Open University would !ike to thank all individuals
and institutions who made it possible for tllis Module to be produced. They a!so
extend their acknowledgements to al! whose works have been consulted in
writing the Module. And it is hoped this suffices written requests for permissions.
Thanks also are due to secretaries who typed the woik, and the Printers for their
superb production
S E. Kulusika
-Lusaka
September
11
,,<,J:;iq!..(':,fe'{'',
students: taking the ''-''"''"''·"' Law seriously!

1
THE CENTRAL THEME OF THE LEGAL ENTERPRISE
(A) TOPIC The nature and functions of Law - ·1
SECTION 1 The nature of Law - 3
SECTION 2 The functions of Lavv - 10
(8) TOPIC The Analysis of Law - 17
SECTION 1 Law and morals - 18
SECTION 2 Law and rights - 20
SECTION 3 Law and justice - 23

SECTION 4 Law and democracy - 35
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After studying unit 1, should be able
® Recognize what a central theme of the legal enterprise is.
® Understand what !aw is and what are its purposes and functions.
® Distinguish Law from morality, rights, justice and democracy and analyse
relations between !aw and morality and the other concepts, as sources
principle
® Identify and apply legal rules and principles various aspects of !ifo in
contemporary society.
INTRODUCTION
Any on the philosophy of (or jurisprudence) addressed to students at
their undergraduate Law degree aims at enabling students to familiarize
themselves with the theories, positions, attitudes and visions of prominent jurists.
in this Unit, and in order to mal<:e the aforementioned aim a reality, the central
theme of legal enterprises wi!I be elucidated by the examination of tile nature
Law. The explanation of the relation of Law to key conceptual subjects. These
include:
® Democracy
® Justice
® Mora!itv
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2
discussion on the nnHo~;ormv of Law, general, the students
should be reminded that it is part of the major jurisprudential debate as to
w!lether or not there should be any connection between Law and subjective
concepts, such as, justice, obligations or rights. VVith this is mind, you, now,
should focus attention on the questions: what is Law? And, what is the
purpose(s) or function(s) of Law?
(A) TOPIC The nature and functions of Law
SECTION 1 The nature of Law
Most writers on jurisprudential or legal philosophical works would appear to
argue cogently that the philosophy of Law encompasses the study ot theoretical
questions regarding the nature of Laws. The examination of legal
systems(beyond domestic boundaries). The exploration of the connection of Lavv
to democracy, justice and morality. Such a study requires the use of
philosophical theories. And this will enable the student to develop a broader
understanding of the nature and worklng of Lavv.
The question vvhich may arise for the student to consider concerns the
proposition whether or not Law is exclusively a formal concept That is Law
consists in rules and principles adopted in a country(x) through a legally
constituted legislative body or other such bodies, and that those rules and
princi-o-Jes
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vvhich- a-re beina aoo-Hed-
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in the countrv(x)
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should be treated• a-s Lavv
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is basic '-'ff'""'"";- regardless
recent attempts, started by H. L. Hart, and continued contemporary
positivists to adopt a more as less inclusive !egai positivists, position as to
law is. As the natural Law thinkers are concerned, Law be considered as
a moral phenomenon. For the naturalists, La,N which is treated as immoral loses
its quality entirely or partly as a !aw. it would seem that each approach excludes
the other (approach). !t is this exclusive approach which has been taken as to
mark the difference between the naturalists and legal positivists. The difference
betvveen them centred on the obligation obey Law.
- 1 : Review Questions
I (1)
,. \Ii/hat do you understand the
Il (2) you agree that La was a medium through which the characteristics a
~
! !egai phenomenon could be investigated?
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(3) \t\lhat do you understand by Law is a "practical discipline for the regulation
! of basic aspects of life in any society"? (You need to do more reading in

I i
II order to b enabled to answer this question)
! (4) Describe the essential parameters of the application of law(answers
provided in the discussion that follows below).
Law is normative. It is founded upon "ought" propositions. It demands
comtJHance. For exam.pie, Zarnt ian Penal Code

1 poHtel~/ say '~.be
4
carefu( sex =,•~~,r girls". n CHJt!avvs sexual a girl-child,
"Any person who unlawfully and carnally knows any child commits a felony and is
liable, upon conviction to a term of imprisonment of not fess than fifteen years
and may be liable to imprisonment for life". (s.138(1). In this section taken as an
example, it is clear that the Penal Code gives commands to the lmN enforcement
agent as to how to deal with those violating its provisions. It also means that the
agent on finding the accused person guilty, that agent must impose sentence of
imprisonment. \/!here {subsection(4) of this section) the offender is a chiid, he
may be liable to "such community service or counselling" as the court may
choose. But in its determination of the matter, the overriding consideration shall
be the protection of the "best interests of both children". This shows that the
determination of what law is may be based on the criteria of identification.
!t can be claimed that the application of section 138( 1) of the Penal Code can
reveal another characteristics of Law. That is the coercive nature of Law. !t is
claimed that a Law must be enforceable against those 'who willfully choose to
ignore or defy its requirements. The positivists argued ln favour of the coercive
element of Law. St Augustine also emphasized the dimension of force in Law.
He had seen it as an instrument for the suppression of vice. He also had
assorted that beyond the role of preventing avi!, the law has no validity. The
adherents of Marxism treated force as part the essence of !avv. it is used
the capitalists as a "blunt instrument" for the perpetuation of capitalistic class
domination..
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A+ - 2: Review Questions
(1) What is the implication the assertion that Law is a Ii
formal concept? Explain reference to legal theorists !
POS!·t·!On. I
1.
. I
(2) do support
.
the proposition that Law "demands I!
compliance? Give concrete examples. lI
(3) Explain the coercive elements any) of Law. "
(4) Describe the stance of Marxism respect of force as part of
"the essence of Law".
The American Realists, who were inspired by the views Oliver
Ho!mes argued that Law is essentially concerned with the operation of courts.
Rea!Jsts the Scandinavian region argued that the obligatory nature is an
outcome of the fact that" people feel some sense bound it".
A- N!f'!!'M1H·w1 Questions
(1) What is the central concern of the American Realists as far as iaw is
concerned? List some of the leading American Realists.
(2) State the main views, in respect of Law, of the Scandinavian Realists.
Provide a list of the Realists to whose views you have made
II reference.
i (3) is jurisprudential method different from the methods other

~ areas legal studies (e.g. contract, Agency)? examp!es
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should have done this
is
Semester One].
,riev1 of Pi-ate- or Jl\ristotle of value relevance to otJr time
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[Sernester One]? Justify answers. I
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of positions, regard
between main schools of thought: the natural law tradition and the legal
positivist tradition. Below is a sketch of the views of the two schools regarding
the nature of Law.
naturalists:
a nutshell, the natural tradition holds that legal authority is founded on
morality. It requires that each putative rule can be law if it is consistent with or
satisfies the demands of morality. A more strict proposition of the natural
tradition is that morality ls not a condition of legality so much as a condition for
the legitimacy of a legal system as a whole. The naturalists view can be
summed up as "the" ultimate ground of legal authority is morality". That is "Law's
authority must be conferred by morality?
The Legal positivism asserts that "there is no such connection between law and
morality. The legal positivists also assert that morality is not necessarily a
condition of legality. That there can be legal systems in which rules should
measure up to the requirements of morality. That legal authority is not made
possible by law's ultimate connection to morality.
1Neli known thinkers among the naturalists, legal positivists and those who used
economics in order to analyse Law) the following may be listed.
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) The naturalists:
® Socrates
® Plato
® Aristotle
® Cicero
® St Augustine
® St Thomas Aquinas
® Grotius
® Immanuel Kant
® Gustav Radbruch
® Lon Fuller
® John Finnis
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(2) The Positivists
® Jeremy Bentham
® John Austin
® Hans Ke!sen
® H.L.A Hart
Mac Cormick
@ Joseph Raz
(3) Economic analysis of Law
® Adam Smith
8
@} KPrrrn
® \Neber
@
Leoni
® Richard Posmer
each group the list is long, though some thinkers cannot be neatly
classified. The above lists should be considered as a crude and simple outlines
of the major legal philosophical traditions.
The student should also take into consideration the influence of other schools of
thought, such as, the historical, sociological, Marxist, empiricist, rationalist and
realist schools. As regards realism, the following thinkers need to be mentioned.
(1) American Realists:
® O!ver VVendell Holmes
® Kari N.Uewe!yn
® Jerome Frank
{2) Scandinavian Realists:
® A.xel Hagerstrom
® Kad O!ivecrona
® Arr Ross
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) \Nhat are the major propositions of St Aquinas regarding and its
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I vaildity?
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I (2) Provide summaries of view of Cicero regard to Law.
I (3) State dearly the position of L.A in respect the legal authority
II Law.
I (4) VVhat is a "higher !aw" as postulated the naturalist?
2: The functions of Law
As stated by Bentham and Austin in the command theory, Law's primary concern
is to the focus of on the factors by and through which a legal directive is made
operative. That is the most important aspect of law is "its imperative sovereign
expression and its coercive maintenance".
In the view of contemporary naturalists, !aw is a regulatory mechanism founded
upon a moral view of society. In this way it may be claimed that law generates
legal - moral obligation.
The American realist Kar! N Uewellyn wt10 stated his view of Law under the 'Law
- jobs' would appear to refer to a functional view of !aw as a mechanism
calculated for the performance of certain tasks. For Andres Vilhe!m Lundstedt,
law is "indispensable for the existence society".
LleweHyn in postulating the purposes of !avv (!aw-jobs) stated that law is an
"intention" which is necessary in society and which is comprised not only rules
10
an a
are i,:,,rr, 01 " , largely and pass recommended in
books.
The jobs, according to Llewellyn, law does indude:
(i) The disposition of the trouble case: a wrong grievance, a dispute.
(ii) The preventive channeling of conduct and expectation, in order to
avoid trouble in society (as betvveen individuals).
(iii) The allocation of authority and the arrangement of procedures which
make action as being authoritative.
(lv) The organization of society in order, to achieve and sustain integration,
direction and augment incentive.
To appreciate the !avv-jobs, one should not only view them as descriptive, but
also as prescriptive. They provide insurance for the surviva! of society and its
continuation Uewe!iyn my Philosophy of !aw - (Boston, Mass: Boston Law
Co., 1941), pp 186-7.
- 1 : Review Questions
) VVhat is the view of the naturalists regarding the functions of law?
) Is the command theory of stm relevant today? Explain.
(2) Discuss the Ue,Nel!yn regarding the purposes o'f law. Give I
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examp.es. I
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exoiainina
' -
the nature and -~---- there are diveraences
..,
of
legal !!o::)et)llE:!rs These divergences can understood the
11
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writing of legal theorist who claimed to beiong to this schooi of thought or to
beiong to other school of thought. As space and time would not permit extensive
coverages, short extracts of opinions on the nature of law are selected and set
out below (the student must consult some the of titles from which extracts were
obtained.
respect of the nature of law, Bentham's position was
A law may be defined as an assemblage of signs declarative of a
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 tho case in queshon are or are supposed to be subject to hjs
power: such volition tmsting for its accomplishment to the expectation
certain events which it is intended such declaration should upon occasion

be a means of bringing to pass and the prospect of which it is intended
should act as a motive upon those whose conduct is question (J.
Bentham, of Laws in General, ed. I-fart (1970), pp. 18-28).
The position of John Austin (is not unknown) regarding !aw. His command
sums vvhat a !aw is:
The appropriate subject Jurisprudence, of its "'''"'·,...,,-~,,.., departments,
positive !aw: Meaning positive law law emphatica!!y so cai!ed,),
12
established or "positum", in an independent political community, by the express
or tacit authority of its sovereign of supreme government.
Considered as a whole, and as implicated or connected with one another, the
positive laws and rules of a particular or specified community, are a system or
body of law. And as limited to any one of such systems, or to any of its
component pares, jurisprudence is particu!ar or national.
Though every system of !aw has its specific and characteristic differences, there
are principles, notions, and distinctions common to various systems, and forming
analogies or likenesses by which such systems are allied.
(J. Austin, The Uses of the study of Jurisprudence [ed. H Hart 1954]; p.
372).
Recently, J. Raz examined the nature of !aw and has the following to say:
The concept of la,N is part of our culture and of our cultural traditions. it plays a
role in the way in which ordinary peop!e as well as the legal profession
understand their own and other people's actions. It is part of the way they
"conceptualize" social reality. the culture and tradition of which the concept
is a part provide it with neither sharply defined contours nor a c!ear!y identifiable
focus. Various, sometimes conflicting, ideas are displayed in. them. !t falls
13
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legal theory to pick on those which are cent.rai and significant to the way the
concept plays its ro!e in people's understanding of society, to elaborate and
explain them.
It was my claim this chapter that one such feature is the law's daim
authority and the mediating role it carries with it. The significance of this feature
is both in its distinctive character as a method of social organization and in its
distinctive moral aspect, which brings special considerations to bear on the
determination of a correct moral attitude to authoritative institutions. This l a
point missed both by those who regard the !aw as a gunman situation writ large
and those who, in pointing to the dose connection bet1;veen law and morality,
assume a linkage inconsistent with it Joseph Raz, Ethics in the Pub!ic Domain
[1994], p. 237)
The naturalist view will be displayed by two extracts. One by R Wollheim who,
in discussing the nature of law said:
The question. !Ii/hat is the nature, or essence, of !aw? Has long
perplexed legal and political philosophers .. . Perhaps the failure to produce
a conclusive answer in this matter is to be ascribed not so much to the
difficulty ol the question as to the ambiguity of it. And perhaps many of
the traditional answers are to be seen not as incompatible answers to the
same question but as compatible answers to different questions: and the
various "schools of jurisprudence" not as the champions of conflicting

views as the reflections divergent complementary
research. And this supposition is further confirmed by the way the
question is phrased; VVhat is the natur.e, or essence, of law? For
questions of the form. iJl/hat is the nature of X? or What is the essence of
X? are notoriously equivocal. Indeed the unsatisfactory condition
political philosophy can largely be attributed to the dominating position
occupied within it by questions posed in this form.
The following e)ctract contains the opinion· of Finnis regarding the nature and
functioning of !aw.
Throughout this chapter, the term "iaw" has been used with a focal meaning so
as to refer primarily to rules made, in accordance with regulative legal rules, a
determinate and effective authority (itself identified and standardly, constituted as
an institution by legal rules) for a "complete" community, and buttressed by
sanctions in accordance with the rule-guided stipulations of adjudicative
institutions, this ensemble of rules and institutions being directed to reasonably
resolving any of the community's co-ordination pmblems(and to ratifying,
tolerating, regulating, or overriding co-ordination solutions from any other
institutions or sources of norms) for the common good of that community,
according a manner and form itself adapted to that common good by features
of specificity, minimisation of arbitrariness, and maintenance of a quality of
15
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between the subjects
relations the lawful authorities.
This multi-faceted conception of law has been reflectively constructed by tracing
the implications of certain requirements of practical reason, given certain basic
values and certain empirical features of persons and their communities. The
intention has not been lexicographical; but the construction lies well within the
boundaries of common use of "law" and its equivalents in other languages. The
intention has not been to describe existing social orders; but the construction
corresponds closely to many existing social phenomena that typically are
regarded as central cases of law, legal system, Rule of law, etc. Above a!!, the
meaning has been constructed as a focal meaning, not as an appropriation of the -
term "law" in a univoca! sense that would exclude from the reference of the term
anything that failed to have aH the characteristics (and to their fuii extent) of the
central case. And, equally important, it has been fully recognized that each of
the terms used to express the elements in the conception (e.g. "making,"
"determinate," "effective," "a community," "sanctioned," "rule-guided,"
"reasonable," "non-discriminatory," "reciprocal," etc.) has itself a focal meaning
and a primary reference, and therefore extends to analogous and secondary
instances which lack something of the central instance. For example, custom is
not made in the full sense of "made" for making is something that someone can
set himself to do, but no one sets himself(themseives) to ma!<e a custom. Yet
customs are "rnade," in a sense that requirements practical reason are not
16
made discovered. each of the other crucial terms is more
or less instantiated is quite obvious ... Law, in the focal sense of the term, is
instantiated when each of these component terms is instantiated.
(John Finnis, Nat.ura! Law and Natura! Rights [1980], pp. 276-280).
- 2: Review Question
(i) Explain Llewellyn's Law's jobs.
(2) V\Jhat does positive law mean (as postubled by Austin)?

i
(3) his 'Ethics in the Public Domain, Raz claimed that "Law claims II
authority and a mediating role in society. Explain.
l!
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l (4) Firmis stated that rules are made in accordance with regulative legal
ii
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rules. Di;;;cuss thoroughly.
II
(B) TOPIC: The Analysis of law
The discussion under this topic focuses on the relation of Law to selected moral
and political concepts, such as, morality, justice, rights, democracy and the like.
These concepts are chosen because any explanation or analysis of the operation
of !aw cannot fairly be carried out without making or mentioning law. This is
unavoidable since mora! principles govern legal institutions.
17
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SECTION 1: Law and morals
Attempts have for sometime now been made clearly establish distinctions
between and moraL The contending schools of thought have recognized, in
varying degree, that law and moral do not altogether coincide. positivists
position has been that positive is distinct and its in no
dependent upon morals. But the coincidence betiiveen the is for the good
human society.
Lon Fuller's argument regarding law and morality was that the process of
legislation, adjudication, contract, electoral methods and customary practice were
"governed by objectively determinable laws and these laws were 'natural' in the
sense that they represent compulsion necessarily contained in certain
organizing men's relations with each other". (American Legal Philosophy at
Century (1954) J. of Legal Education 457). Based on this, Fuller advanced a
number of principles which he described as an "internal morality" of law. They
are "internal" because they are implicit in the concept of law. They can be
described as a "morality" because they set up standards for evaluating official
conduct.
- 1: Review Questions
(1) !s it practical to separate from morality?

(2) Give an account 01° the inseparability of Law and morals as postulated
the naturalists.
(3) \Afhat was Fuller's argument regarding law and
Exptain one Fu!Ier's "internal" principles the morality of !aw.
18
.J. as a championed separation of and morals, as
successive positivists have done although with some degree of variation in term
of focus and emphasis.
For Austin there are w,o capita! clauses of human laws. The first he named as
"positive law" anti the second was called "positive morality". He explained the
word "positive" as denoting that both classes flow from human sources. From
this distinction, one may daim that Austin was advocating the separation of law
from morality. This remains the focal point of debate. !tis significant to note that
as far as Austin was concerned "The existence of law is one thing; its merlt or
demerit is another". (J. Austin, The Province of Jurisprudence Determined, ed.
Hart [1954], pp. 198-121).
(1) Explain "capita! classes of human iaws" as Austin stated.
(2) VVhat is "positive morality"? Describe.
(3) \JVhy is the existence of !aw considered as thing and its

I
I merit as another?
Iij
(4) Can law and morality be treated as one?
Hans Ke!sen's approach to !aw and morality can be understood from what he
said, " The distinction between 1aw and morality consists in the fact that law is a
19
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coercive order - the law seeks about a specific mode of
attaching to the opposite mode of conduct, a sanction, a coercive act, the
forcible taking away of life, of freedom ... or other value ... morality seeks to
bring about a specific mode of human conduct, and morality too provides for
sanction. But these sanctions are the approbation of moral conduct and the
disapprobation of immoral conduct, not coercive act. .. "
- 3 Review Questions 1
(1) How did Ke!sen separate !aw from morality? I
(2)
I
Explain the co~cept of coercive act as advanced by Kelsen.

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(3)
(4)
Summarise Kdlsen's theory of law
i
What is an "approbation of moral conduct"?
I
SECTION 2:
Prof. Kamm (Prof of Philosophy, Medicine and Law-NYUN) writes th$t rights are
i
"claims to somethin9i" or "protected options" to do or not to do so,ething. He
: I
explains this by assTrting that "that someone has a right can provi1e a unique
;
reason for action on the part of the rightholder or others". rights, $cept moral
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rights, are dependent on legal systems but they are not unrelated to
A conceptual foundation of rights was laid Hohfe!d(Bentham,
had also discussBd the matter). it
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ana[ysed by Hohfeld one must distinguish between the claims "Z has a right to A"
and "Z has an apple". That is one must distinguish between normative
statement, the former, and merely descriptive assertion, as in the latter claim. To
resolve confusion in respect of the tvvo types of claim, Hohfe!d relate such
concepts to their "correlatives" and "opposites" in the example given "Z has. a
right to A", and you may add T must refrain from interfering with A, one can say,
according to Hoife!d, what Z can do to A is a right or privilege whereas what T
can do in respect of a is A duty (the student should note also what Hohfeld
described as "immunity", and some of the majors short-comings of his concepts).
I - (1)
1: Review Questions
Explain rights and give at !east three examples.
I
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(2) What is a duty as far as the concept of rights as advanced by Hohfeld?
I (3) Give an example of a privilege

I
I (4
! ) Ust some rfrfficulties associated with Hohfe!d's concept of rights.
I
an influential article on rights, (published under "The Nature and Value of
Rights" in 1970 - Journal of va!ue inquiry, 243-260} Feinberg dlstinguished
"claim-right" from mere liberties, immunities and powers which also are
sometimes called "rights,; which, he conceded, they are easily confused.
Feinberg argued that when D has a legal claim-right to A, it must be the case (1)
that he is at in respect A(Le. that he has no duty refrain from or
21
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relinquish A), and also (2) that his liberty is the ground of other people's duties to
grant him A or not to interfere with him in respect to A. In the sense of cla.im-
rights, right logically entails other people's duties.
Having given some examples, Feinberg advised that the notion that a right is a
kind of claim, and a claim is an assertion of right" does not help. He then
asserted that a claim is that which is claimed, the object of the act of claiming ...
we may !eam more about the generic nature of rights than we cou!d ever to
leam from a formal definition .. Feinberg also explained certain expressions such
as, claim Jo ... claiming that . . . having a claim ... The difference
between making iegal claim to and claiming that ls that the former is a legal
performance with direct legal conseqLiences whereas the latter is often a mere -
utterance with no legal fake. As regards hailing a claim consists in being in a
position to claim; i.e. to make a claim to. This links claim to a kind of It
eliminates the tendency to treat claims as things!.
Feinberg asserts, in respect to the above, that there is intimate connection
between having a c!aim and having a right. As such right can be a claim without
qualification, or as recognized claim, as justified or justifiable claim, as valid claim
(Feinberg preferred the latter definition).
22
A - 2: Review Questions
! \ What is different in Hohfe!d and Feinberg views on rights?

I '
II
I Why do you think Dworkin treated a right as a trump? (Read: Taking
I
iI Rights seriously_ to enable you answer this question).
I
I (3) Identify four types of right connected to claim. Explain one of them.
l
I!
(4) Can a daim not amount to a right? Discuss.
SECTION 3: Law and Justice
The term "justice" is commonly used by laymen/women and those in the
profession. it is sometimes assorted "justice according to !aw" VI/here
emphasis is the proper operation a system Z. One also may c!aim that "justice
is al! idea! form of dealing, i.e. how the operation of a given legal system may be
evaluated.
In the sphere of the operation of law "justice" is used to indicate or demand
adherence to procedure - due process.
is u-,,1.. crn contrasted "injustice" as an opposite condition. But
contrast has not clarified meaning of justice. Justice is a question of
A~ question cf oerceotions of the relations of human beinas

I • -
23
illtTWff:\YH;":·,,
,,,,1111¾W.\:','
society. And the relationship between law and justice has played important role
in legal theory and the development of jurisprudential analysis. lt has also played
an important part in the development of naturalist legal theory {Aristolie, The
naturalists considered justice as a matter of equitable relations between people
in society. But there is no single or uniform theory of justice among naturalists of
aH ages. They may be said to agree that justice is concerned with issues of
distribution (of wealth, goods and whether this should be "rights" or Laissez-faire
based (John Lock, John Raw is and Robert Nozick).
(1) list areas of human activity where the idea of justice is most
frequently encountered.
I
! \/Vhat is the concem of the administration of ''"'"'u'"''"' a
I
!
! modem society?
'
(3) What is "justice according to law"? Explain.
(4) What is justice, as far as John Lockecis concemed?
The extracts that follow are intended to display to the student the variety of
meaning which the term justice may take in its relation to Law. The main extracts
taken are of John Rawls, (A Theory of Justice [revised edition (1999] pp ·12 - 15,
15-17, 52-56, 118-119, 242-249)
24
(A) The ambit of justice
Any discourse on justice must begin from the claim that justice is al! about
relations of human beings their respective society. The ideas of justice,
therefore, is essentially seeking to evaluate standard of behaviour of people a
given society. This has been carefully articulated by Rawls as previously
indicated.
in working out the conception of justice as fairness' the principles of justice are
thought of as arising from an original agreement in a situation of equality, it is an
open question whether the principle of utility would be acknowledged. Offhand it
hardly seems likely that persons who view themselves as equals, entitled to
press their claims upon one another, would agree to a principle which may
require lesser life prospects for some simply for the sake of a greater sum of
advantages enjoyed by others. In the absence of strong and lasting benevolent
impulses, a rational man would not accept a basic structure merely because it
maximized the algebraic sum of advantages irrespective of its permanent effect
on his own basic rights and interests. Thus it seems that the principle of utility is
incompatible with the conception of social co-operation among equals for
advantage. ft appears to be inconsistent with the idea of reciprocity impfidt in

nouon 01 a we j''1-or:d ere d. society
,.. C . ' .. ,,
25
"">")!,;, ~t0&-':
1Mffei'.'' ,;;,,
J shall maintain instead that the persons in the initial situation would choose two
rather different principles: the first requires equality in the assignment of basic
rights and duties, vvhile the second holds that social and economic inequalities,
for example inequalities of wealth and authority, are just only jf they result in _
cotr1pensating benems for eve1yone, and in particular for the least advantaged
members of society. But there is no injustice in the greater benefits earned by a
few provided that the situation of persons not so fortunate is thereby improved.
The intuitive idea is that since everyone's well being depends upon a scheme of
co-operation without which no one could have a satisfactory life, the division of
advantage should be such as to draw for the willing co-operation of everyone
taking pan' in it, including those Jess weJJ situated.
ft is, worth noting fTom the outset that justice as fairness, like other contract
views, consists of two parts: an interpretation of the initial situation and the
problem of choice posed there, and (2) a set of principles which, it fs argued,
would be agreed to. To be sure, I want to maintain that the most appropriate
conception of this situation does lead to principles of justice contrary to
utilitarianism and perfectionism, and therefore that the contract doctrine provides
an alternative to these views. justice as faimess is an example of what I have
called a contract theory.
The merit the contract terminology is that it conveys idea that principles of
justice may be conceived as principles that would be chosen by rational persons,
26
and that this way conceptions justice may be explained and justified.
theory of justice is a part, perhaps the most significant part, of the theory
rational choice.
fA- 2: <P>UN,!;:!\tJ,i! Questions l

I
'li
I What does justice evoke as concerned Rawls? I
Ii
(1)
I (2)
I
He said "justice is fairness". Explain.
I (3) What is a "lasting benevolent impulse"?
I (4) is it that the principles of is incompatible the
I I
conception of social co-operation?
,
j
(b) The original position
I have said that the original position is the appropriate initial status quo which
insures that the fundamental agreements reached in it are fair. This fact yields
the name '1ustice as fairness". It is clear, then, that I want to say that one
conception of justice is more reasonable than another, or justifiable with respect
to it, if rational persons in the initial situation would choose its principles over
those of acceptability to persons so circumstanced.
It seems reasona!Jle to suppose that the parties in the original position are equal.
That is, all have the same rights in the procedure for choosing princfpies; each
can make proposals, submit reasons for their acceptance and so on. Obviously
27
Afe.i,.Jlilfo/?i:,
<'EY/8"~
purpose these conditions is to represent equality betvl/een .beings
as moral persons, as creatures having a conception of their good and capable
a sense of justice.
- 3 Questions
) did Rawls consider justice as fairness?
(2) What is the original position in respect of justice?
(3) \1\/hy are persons in the original position regarded as equal?
(4) How would you justify the conception of justice?
principles justice
The two principles of justice in the original position ...
First: each person is to have an equal right to the most extensive basic liberty
compatible with a similar liberty for others.
Second: social and economic inequalities are to be arranged so that they are
both (a) reasonably expected to be everi;one's advantage, and (b) attached to
positions and offices open to ail..
These principles primarily apply to the basic structure of society. They are
govern the assignment of rights and duties and to regulate the distribution of
social and economic advantages. As their formulai'ion suggests, these principles
28
presuppose tat the social structure can be divided more Of! Jess rn,:;;;nnrr
parts, the first principle applying to the one, the second to the other.
distinguish between those aspects of the social system that define and secure
the equal liberties of citizenship and those that specify and estabHsh social and
economic inequalities. The basic liberties of citizens are, roughly speaking,
political liberty (the right to vote and to be eligible for public office) together
freedom of speech and assembly; liberty of conscience and freedom of thought;
freedom from arbitrary arrest and seizure as defined by the concept of the rule of
law. These liberties are all required to be equal by the first principle, since
citizens of a just society are to have the same basic rights.
The second principles applies, in the first approximation, to the distribution of
income and wealth and to the design of organizations that make use of
differences authority and responsibility, or chains of command. While
distribution of wealth and income need not be equal, it must be to everyone's
advantage, and at the same time, positions of authority and offices of command
must be accessible to all. One applies the second principle by holding positions
open, and then, subject to this constraint, arranges social and economic
inequalities so that everyone benefits.
These princjp/es are to be arranged in a serial order with the first principle prior to
the second. This ordering means that a departure from the institutions of equal
libelty required by the first principle cannot be justified by, or compensated for,
29
, ''.:#'kW
'.,"\{f{!Jt..1/jfj O.
greater social and economic advantages. ,..,, 0

·~,,.,..,, wealth
and the hierarchies of authority, must be consistent with both the fiberties
equal citizenship and equafity of opportunity.
[The] tltt10 principles (and this holds for ail formulations) are a special case a
more general conception of justice that can be expressed as follows:
All social vafues li.berty and opportunity, income and wealth, and bases
self-respect are to be distributed equally unless an unequal distribution of any, or
al!, of these values is to everyone's advantage.
Injustice, then, is simply inequalities that are not to the benefit of ail ...
As a first step, suppose that the basic structure of society distributes certain
primary goods, that is, things that every rational man is presumed to want.
These goods normally have a use whatever a person's rational plan of fife. For
simplicity, assume that the chief primary goods at the disposition of society are
rights and liberties, powers and opportunities, income and wealth .. [ ...] These are
the social primary goods. Other primary goods such as health and vigor,
intelfigence and imagination, are not so directly under its control.
it is possible, at least theoretically, that giving some
fundamental liberties. men are sufficiently compensated by the resulting social
30
and economic gains. The general conception of justice imposes no restrictions
on what son" of inequalities ar.e permissilJle; it only requires that everyone's
position be improved. We need not suppose anything so drastic as consenting to
a com:Htion of slavery. Imagine instead that men forego certain political rights
when the economic returns are significant and their capacity to influence
course of policy by the exercise of these rights would be marginal in any case. It
is this kind of exchange which the two principles as stated rule out; being
arranged in serial order they do not permit exchanges between basic liberties
and economic and social gains. The serial ordering of principles expresses an
underlying preference among primary social goods. When this preference is
rational so likewise is the choice of these principles in this order.
Furthermore, the distinction betvveen fundamental rigf1ts and libedies and
economic and social benefits marks a difference among primary social goods
that one should try to exploit. It suggests an important division in the social
system. Of course, the distinctions drawn and the ordering proposed are bound
to be at best only approximations. There are surely circumstances in which they
fail. But it is essential to depict clearly the main Jines of a reasonable conception
of justice; and under many conditions anyway, the two principles in serial order
may setve enough. When necessaf\J we can fall back on the more general
conception.
31
,,,2N! , ; "J.Jffe/Z:;,,'"f(A!J,;
>-:c,i:',J:,LJ
The fact that the two principles apply to institutions has certain consequences.
Several points illustrate this. First of ail, the rights and liberties referred to by
these principles are those which are defined by the public rules of the basic
structure. \Nhether men are free is determined by the rights and duties
established by the major institutions of society. Liberty is a certain pattern of
social forms. The fjrst principle simply requires that certain sorts of rules, those
defining basic liberties, apply to even;one equally and that they allov,; the most
extensive liberty compatible with a like liberty for all. The only reason for
circumscribing the rights defining liberty and making men's freedom less
extensive than it might otherwise be is that these equal rights as institutionally
defined would interfere with one another.
Now the second principle insists t.hat each person benefit from permissible
inequalities in the basic structure. Thfa means that it must be reasonable for
each relevant representative man defined this structure, when he views it as a
going concern, to pref-er his prospects with the inequality to his prospects without
it. One is not allowed to justify differences in income or organizational powers on
the ground that the disadvantages of those in one position are outweighed the
greater advantages of those in another.
fess can infringements of liberty be counterbalanced this way
32
r
I - w""''°'""'""' Questions
I
II ) iNhat is Rawis' basic structure of a society?
I (2)
l
Identify the basic liberties as advanced by Rawls.
I (3) Describe Raw!s' second princip!e
I (4) How is a person compensated when she/he gives up some of her/his
I liberties?
I
Distributi"e justice
The main problem of distributive justice is the choice of a social system. The
principles of Justice apply to the basic structure and regulate how its major
institutions are combined one scheme. Now, the idea of justice as fairness is
to use the notion of pure procedural justice to handle the contingencies of
particular situations. The social system is to be designed so that the resulting
distribution is just however things tum out. To achieve this end it is necessary to
set the social and economic process within the surroundings of suitable political
and legal institwions. Without the proper arrangement of these background
institutions the outcome of the distributive process will not be just. Background
fairness is lacking.
I assume that the basic structure is regulated a just constitution that secures
the liberties equal citizenship. Liberty of conscience and freedom of thought
are taken for granted, and the fair value of political liberty is maintained. The
33
5,/W/'"
-'.f..'f\:"'.}fififg
political process is conducted, as far as circumstances permit, as a just
procedure for ctir;osing bew,,1een governments and for enacting legislation.
assume also that there is fair as opposed to forrnal equality of opportunity. This
means that in addition to maintaining the usual kinds of social overhead capital,
the government tries to insure equal changes of education and culture for
persons similarly endowed and motivated either by subsidizing private schools or
by establishing a public school system. lt also enforces and undervvrites equality
of opportunity in economic activities and in the free choice of occupation. This is
achieved by policing the conduct of fir.ms and private associations and by
preventing the establishment of monopolistic restrictions and barriers to the more
desirable positions. Finally, the government guarantees a social minimum either
by family allowances and special payments for sickness and unemployment, or
more systematically by such devices as a graded income supplement (a so-
called negative income tax).
(1) \Nhat is the major problem of distributive justice?
(2) Describe Raw!'s background institutions",
(3) V\that is a fair opportunity?
(4) VVhat should influence the people's choice of the sort of system for
adoption?
34
SECTION 4: Law and democracy
It is claimed in a constitutional democracy judges should be the preserve of
rights. They should be free to protect rights against governmental interference.
To make this a reality, specific rights must be entrenched the constitution.
the judiciary should not, reasonable grounds, defeat legislative intent
where this is dearly spelt out the legislation question. Law's role is to permit
democracy to flourish. !t must ensure that govemment treat a person as a fu!!
member of a human community: i.e. s/he enjoys human dignity
seriously, pp.198-9), [Contrast this with Finnis' and Hart's}.
A -· 1 Review Questions
\
f
' ls these any practical distinction between constitutional and liberal
democracy?
(2) How does Dworkin's equal concern and respect amount to democratic
concerns?
(3) does Dworkin treat right as a serious matter?
'(4)I
i,
Do you think Dworkin's rights should be immune from legislative
i\ encroachment?
35
'•"-0:: @!Af&V:!X.;V,j';:;;✓ ''

:/:;''i,y/3,<f!if2-s..cyp·,
ln certain African states, Zambia inclusive, there is the political urge to empower
people. But the idea seems to be treated narrowly: either as a political
emancipation, or as economic renaissance. A better way to articulate this
concern would have called for the postulation of empowered democracy. This
should entail the adoption of politic-economic and social-programmes to
empower individuals to explore in a more meaningful way the many means and
opportunities in which they may imagine their lives will become better and their
struggle for survival be seen to be more purposefuL
For the above to be realized, as a minimum at least, (i) there must be undertaken
measures to alter current system of legal rights; (ii) a revision of the constitution
to remove certain dauses that stifle individual rights and freedoms by excessive ·
c!ow-backs; and (iii} a re-invention of the economic system to give greater m!e to
rural and vulnerable groups (this wiU entail access to finance and markets and
enhancement of solidarity rights). Under this project, market freedoms will not be
up-rooted, but a modified programme for the "re modeling of government" as
suggested by Unger(Politics, a work in Constructive Social Theory, vol 2 f1987],
p 341) will not be pushed to far. But his basic premise that "the present variety of
constitutional structures within societies are far too rigid, so promoting
confrontation and alienation" shall be taken seriously. !n the proposed new
"empowered democracy" rea! powers must rest with a iower and closer to the
grass-mot authority rather than \Nith a despotic, higher and more remote one.
36
idea, hc,-c·~,.., ..o of de-centralisation be strengthened
called "mini-constitutions".
J - 2: Review Questions
I
I
II (i) Name some of the elements of Unger's "empowered democracy".
I
l (2) VVhat are solidarity rights? (Read the African Charter on Human and
I
I People's Rights).
I
!
(3) Why is that most African States constitutions are embedded with
I elements of confrontation?
I
I
I (4) Describe bottom-up operation of government (an imaginary state R).
I
Summary:
) No doubt that Law has bond with justice, morality, rights and democracy
as the analyses so far made may show. With the exception of morality,
the linkage between law and the others is very strong.
(2) What remains unresolved is agreement as to the definition of raw. The
debate between the naturalists and legal positivists is basic and may
continue for the foreseeable future.
(3) Lon Fuller offered eight ways in which a !aw may faii. Three of these need
to be included in this summary: The second route, Le. "a failure
publicize, or at least to make available to the affected party, the ru!es s/he
is expected to observe. Route three, i.e., the abuse of retroactive
legislation, ,n,n,rn itself cannot guide action, but under cuts the integrity of
37
,,ff, -rfv,!?'
'' 'J,.f:;:_ki!t;!;f,ff'P ' ' U)i'
... The is
subject cannot orient her/his action them.
Fidelity to law is not equivalent supporting the power that might
remained in that position through deception, or by reliance on force
I - 3: Questions and
I
!
(1) Describe the position (i) Devlin and Hart respect the
I connection between law and morality.
I (2) The distinction between naturalist and legal positivist position as
iI regards the nature of !aw in non-exlstant. Do you agree?
I (3) Llewellyn wrote about Law's jobs. Explain and give examples.
I (4) Contrast the democratic theory of Dworkin that of
l! Unger(indicate your preference)

l
38
2
THE JUDICIAL PROCESS
TOPIC Adjudication
SECTION 1 Discretion and reasoning
SECTION 2 Stare decisis and precedent
(B) TOPIC Interpretation
SECTION 1 Statutory interpretation
(a) Legislature's intent
(b) T extua!ism
SECTION 2 Constitutional interpretation
(a) The origina! meaning
(b) Open texture
OBJECTIVES
After studying Unit 2, you should be ab!e to -
@ Understand that statutes and constitutions declare legal duties and legal
rights. That judges and other !aw enforcement agents must interpret what
statutes and constitutions provide.
39
}f&""llf'l}!}JF''{'\
,,,,,,1,:c.ififi.~''"
@ relevance doctrines stare decisis precedents.
distinguish betvveen binding and non-binding holdings(non-binding:
dictum), and precedent's conditions overruling.
® Explain whether the meaning of statutes evolve or remain fixed over
® Define what a legislature's intent is.
INTRODUCTION
(A) TOPIC: Adjudication
Most jurists are of the view that adjudication should meet at least tvvo conditions,
Le, the condition of rationality and the condition of legitimacy. The jurists are
claiming that adjudication should be both rational and legitimate. As a
commentator ob serves, the rationality and legitimacy conditions of adjudication
"have informed contemporary .Anglo-American iega! -:.llt'J'i

~~-li.-1 n""liHr,::,j
r"-1' ...... uu.
philosophy". Among the well-known contemporary jurists who advocate the
rationality and legitimacy conditions of adjudication are Ronald Dworkin, Neil
MacCormick, Joseph Raz, William Lucy and others.
lt is claimed that a rational adjudicative process implies such virtues as
consistency, fairness, impartiality, and predictability, whether or not the case
under consideration is treated as hard or easy one. As legitimate
adjudication, there the expectation is that the judicial process yield results
which impose an obligation of obedience on all the parties concerned. a
number respects, the four jurists are agreement, but others they are
40
greater insig:1ts see Deworkin's Law's Empire(1986);
Heasoning and Legal Theory 978); Raz's The Authority of law(1979); Lucy's
understanding and Explaining Adjudication(1999).
1: Discretion and Reasoning
(a) Discretion
Positivistic jurisprudence from Austin to Hart placed emphasis on the part
played by judicial discretion. "In these cases it is clear", Hart has written, "that
the rule-making authority must exercise a discretion, and there is no
possibility of treating the question raised by the various cases as if there were
one uniquely correct answer to be found, as distinct from an answer which is
a reasonabte compromise betvveen many conflicting interests. (The concept
Ai'
~~
~\•I\
jr_.--.u~,.
Received orthodoxy held that judges filled in the gaps left by rules of law
using their discretion. Austin saw no problem or danger in this: judges were
merely making up for the "negligence or the incapacity of the avowed
legislator". t-lart saw rules as "open-textured". However smoothly they worked
over the great mass of run-of-the--mill cases, at some point their application
became indeterminate.
For Hart there are three reasons for indeterminacy. First, language itself is
\ndeterminate: words contain a central core of certainty of meaning
41
,/'.,','7
~>id/iiit
invariably also a "penumbra """,,,,..,.,,,-,-., to a
discretion, "a choice", but there are constraints: he may add a new case
"because resemblances which can reasonably be defended as both legally
relevant and sufficiently dose". Secondly, mies use very general standards:
reasonableness, just and equitable, a "safe" system work. And,
there is indeterminacy inherent the common !aw system of precedent.
To suggest that judges have discretion is not to imply that they have license
to do what they will. It may be that in practice, in other words as a matter
description, some bad judges act as if they do. But the institution of judging
offers the judge choice only within the constraints of judgment The
normative institution of judgment requires a decision to be justified by legal
argument. Indeed, few decision-makers have to explain their decisions as
fully.
Dworkin offers a very full analysis of "discretion (Taking Rights Seriously),
three senses of discretion, two "weak" and one "strong". Discretion in a
strong sense occurs where a person "is simply not bound by the standards
set by the authority in question". The sergeant who is ordered to pick any five
men for a patrol has strong discretion. But judges do not have such freedom
to choose. There is another sense also which discretion may be said be
"weak". !t exists where an official has the authority make a decision. The
42
sense has discretion as experienced men he
selects.
A - 1: Questions
(1) Ust the main elements of adjudicative process.
(2} 'Nhat distinction can you indicate in respect the views of Dvvorkin and Hart
regarding adjudication.
(3) Explain the doctrine of stare decisis.
(4) What is judicial precedent (common law).
(5) Distinguish between weak and strong discretion.
if, within limits, courts have a choice to decide whicil way decisions are to go,
what is it, if anything, that governs or controls that choice? Certainly not mere
logical deduction or inference in the sense of syllogistic reasoning, for legal rules,
ideas, and concepts are expressed in word's whose uncertain sphere of
operating precludes the statement of legal reasoning in the rigidly defined terms
which conclusions may be logically deduced fr:-,m stated premises Mac-
Connick, legal F?.easoning and legal Theory (1987). is this surprising, for not
iega! rules and concepts depend for their usefulness on their very
indefiniteness and flexibility, as Holmes remarked in one of his most striking
phrases, "the life of the law has been logic but experience". (Common Law).
43
;J'Ff''.;''i'/h
41~:- ,'
Ordinary ianguage, in which law is necessarily expressed (for how otherwise
could its contact with real life be maintained?) is not an instrument of
mathematical pre,cision but possesses what has been described as an "open
texture" (see The Concept of Law). It is rather a question of presenting a
succession of cumulative reasons which severally co-operate in favour of saying
what the reasoned desires to urge: But this is really the very opposite of the
"arbitrary", which suggests a purely haphazard, irrational and fortuitous
conclusion though, as Hughes points out, this is not to suggest that the real
explanation ot the decision, its motivation, may not be contained in its reasoning.
Hughes, Law, Reason and Justice(i 969). The essence of legal reasoning is in all
essentials, save 1hat the lawyer engages in a more searching inquiry for precise
reasons for his decisions, comparable to the process of reasoning in ordinary life,
whether concerned with ethical or practical problems. Thus when we decide that
something is good or desirable, beautiful or ugly, we mean to express a
judgment. This may be intended as an expression of a candidate by a selection
is called for, such as the choice of a profession or of a candidate by a selection
committee, the choice may be purely arbitrary, but more likely will be based on a
weighing of reasons why one rather than another choice is to be made. Such a
choice is not logical in the sense of being deductively inferred from given
premises, but it has a kind of logic of its own, being based on rational
considerations which differentiate it sharply from arbitrary assertion.
44
statements of fact or logical inferences, cannot be treated
as m themselves true or false, for such a criterion is inapplicable to decisions
choice bet\Neen alternatives. They can however be properly regarded
as right or wrong, or good or bad, ln the sense that they either are or are not
based cumulative reasons which are found to be acceptable. Of course the
notion "acceptability" necessarily involves the need for some agreement as to
what are ultimately the valid criteria for resolving a dispute, for if there were no
such common or widely approved grounds if would be impracticable to settle any
dispute whatever. practice, however, broad agreement of this kind does
generally exist in !aw as in everyday problems, and this is a factor of human
social life based on experience, and without which no community could survive or
indeed come into existence at aH. This does not mean that these so called
ultimate criteria are absolutes a natural law sense, but simply that it is
senseless to ask for justification of criteria which are ex hypothesis to be treated
as ultimate for a particular purpose and within a particular community. And
though their origin may be in some instances ethical, they may equally derive
from practical experience, custom, or tradition.
Moreover courts, !ike ordinary people, may and generally do employ differing
criteria, reflecting varying attitudes toward the solution of problem.
45
i@.\'.0/:A>-:ih5;,~lh/,C, __,/"
0
''"""t:£'J'h ' "W<1te'
( -'!tl\ betvveen reasons(given) and reasoning.
(2) Judge's decision is governed "institutional constraint". Explain,
and give examples.
(3) \IVhat do we mean by X is hard-working student?
(4) do judge determine whether or not a reason is acceptable?
2: Stare decisis and Precedent
To take the same course as has been taken previously, or as has usually been
adopted in the past, not only confers the advantage of accumulated experience
of the past but also saves the effort of having to think out a problem a new each
time it arises.. Accordingly, almost any form of organization, precedents have
to be established as guides to future conduct, and this applies not merely to legal
systems but to all rule or norm-creating bodies. The infinite variability of the facts
in human situations comes to the assistance of mankind not only by rendering it
impossible to apply past rulings purely mechanically, but by providing scope for
the gradual moulding of the rules to meet fresh situations as they arise. There is
a constant interaction between rules and the factual snuations which they govem,
for a too rigid observance of the rules may stereotype the very structure and
activities of society itself, iillhereas a freer approach allow a richer interplay of
social forces.
46
V\/hiist restraint in exercising the judicial pmNer to overrule precedents makes for
stability, abstention can defeat this very stability, for a practice of rigid adherence
to precedent will eventually produce an accumulation of outmoded rules which
are likely to be blurred by artlficial di~nctions.
Precedent has thus always been the life-blood of legal systems. It is, of course,
particularly prominent in the common faw. The special features of the present-
day common Jaw system of precedent may, perhaps, be summarized as (i) a
particular emphasis on judicial decisions as the core the legal system; a
very subordinate role conceded to juristic writings, as against decisions of the
courts, the exposition of the law; (iii) the treatment of certain judicial decisions
as binding on other judges; the doctrine of state decisis and the form of
judicial judgments and the mode of reporting these cases.
VVhen an overall view is taken of the existing rules of stare decisis in English Jaw,
it is evident that there is room for a good deal more flexibility than might be
supposed. Thus courts of co-ordinate jurisdiction are not bound by each other's
decisions (though for this purpose the Divisional Court enjoys a somewhat ill-
defined pre-eminP-nce), and a decision of a lower court can only persuade but not
bind its superior.
47
,,M&&;'!('?Y,''
, ":' \'.CUL✓,~'
-1:
) is the significance precedent respect common
courts decisions?
(2) Evaluate the relevance precedent today.
(3) is stare decisis?
(4) What is meant by courts of co-ordinate jurisdiction? Give examples.
(B} TOPIC !nterpretation
This preparatory remarks are based on the position of in,11J11?t.n on interpretation
(Law's Empire).
Constructive interpretation is a methodology interpreting social practices and
texts. The works of Dworkin employ this method to interpret legal practice. The
distinctive feature of this is that it ls "argumentative".
The process of constructive interpretation is made up of three analytical stages:
the pre-interpretive stage, the interpretive stage, and the post-interpretive stage.
At the pre-interpretive stage, the participant identifies the rules and standards
that tentatively constitute the practice. The equivalent stage in !iteraty
interpretation is identifying the text. the interpretive stage, the interpreter
"settles on some general justification the main elements of the practice
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'really' requires so as better serve the accepts

interpretive stage". Of these three stages the interpretive is the pre-eminent. it is
at this stage that the particfioant postulates the value of the practice.
1: Statutory
One of the most important of judicial functions ls the construction of statutory
provisions.
It is traditional to refer to three basic rules of statutory interpretation. That there
are thought to be three rules or canons or conventions can only be explained
historically. The earliest "rule" was formulated in Heydon's Case in 1584. The
mischief rule, as it came to be known. The growth of parliamentary supremacy
and the articulation of the separation of powers doctrine led simultaneously with
the emergence of the will theories of law to the development in the early part of
the nineteenth century of what became known as the literal rule. The move to
liberalism was tempered by the development of the golden rule. At times since
then the literal rule has seemed to be very much in the ascendant. There is a
trend away from the purely literal towards the purposive construction of statutory
provisions.
ft is 1Nrong to give the impression that there are now three distinct rules
statutory interpretation. For, whatever status is accorded them (and, using
Dvvorkin's terminology, "principles" is arguably more accurate (Gross statutory
interpretations 987), that the three "rules" have been fused. There seems now
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to be just one "rule" of interpretation, a revamped version ihe literal rule which
requires the general context (Hanlow v. Law Society (1980) 2W.LR 765, 804),
and purpose to be taken into consideration before any decision is reached
conceming the ordinary (or where appropriate, the technical) meaning of
statutory words. The golden rule is a qualification of this, so that if the judge
considers the application to the words in their ordinary sense would produce an
absurd result which cannot reasonably be supposed to be the intention of the
legislature, he may apply them in any secondary meaning which they are
capable of bearing.
(d) Legisiator1s
ih
:..e t . I .m mis
ma_ena. ·· . suosecuon
' · ,. n .1- '
. auoplea
is the work of Justice
Antonin Scalia, A Matter of Interpretation [1997], 3-48 L for academic were
student in my class]
Regarding the intent of the legislator (or legislature), Scalia wrote;
You will find it frequently said in judicial opinions of my court and others that the
judge's objective jn interpreting a statute is to give effect to "the intent the
legislature". This principle, in one form or another, goes back at least as far as
Blackstone. Unfortunately, it does square with some of the (few) generally
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text of a statute is clear, that is the end of the matter.
50
Another accepted rule of construction is that ambiguities in a newly enacted
statute are to be resolved such fashion as to make the statute, nor only
internally consistent, but also compatible with previously enacted Jaws. We
simply assume, for purposes of our search for "intent," that the enacting
legislature was aware of all those other laws. Vt/elf of course that is a fiction, and
if we were really looking for the subjective intent of the enacting legislature we
would more likely find it by paying attention to the text (and legislative history) of
the new statute in isolation.
And the reason we adopt this objectified version is, J think, that it is simply
incompatible with democratic government, or indeed, even with fair government,
to have the meaning of a !aw determined b}' what the lawgiver mean( rather than
by w!1at the lawgiver meant, rather than by what the lawgiver promulgated. That
seems to me one step worse than the trick the emperor Nero was said to engage
posting edict high up on the pif!ars, so that they could not easily be read.
Government by unexpressed intent is similarly tyrannical. It is the law that
governs, not the intent of the lawgiver. That seems to me the essence of the
famours American ideal set forth in the Massachusetts Constitution: "A
government of laws, not of men, Men may intend what they will; but it is only the
Jaws that they enact which bind us".
reality-, however, if one accepts the principle that the object of judicial
interpretation is to determine the intent of the legislature, being bound by genuine
51
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!;,2£-i;,2'
unexpressed legislative intent than the law is only the theoretical
threat. The practical threat is that, under the guise or even the self-delusion of
pursuing unexpressed legislature intents, common-law judges fact pursue
their own objectives ad desires, extending their law-making proclivities from the
common law to the statutory field. you are told to decide, not on the basis
of what the legislature said, but on the basis of what it meant, and are assured
that there is no necessary connection between the two, your best shot at figuring
out what the legislature meant is to ask yourself what a wise and intelligent
person should have meant; and that wiJI surely bring you to the conclusion that
the Jaw means what you think it ought to mean which is precisely how judges
decide things under the common Jaw.
I -1: Review Questions t

I*'
l
t (1 > As concerns the intent of the legislature what principle can be used to j
Il
II (2)
unlock the difficulty and identify it(intent)?
is these divergences of opinion on the issue of intent statutory

N
1
1
I
1 l
I interpretation?
I
I
l
(3) list any differences be'tlueen Cross and Scalia in respect to
legislature's intent (as regards statutmy interpretation).

i
does scalia mean "men intend they
52
(b) T extuailism
this subsection, the ideas of Justice Scalia constitute the main sources
but it does not complete endorsement of his ideas.
The philosophy of interpretation I have previously described is known as
textualism, some sophisticated circles, it is considered simpleminded
"wooden," "unimaginative," "pedestrian." It is none of that. To be a textualist
good standing, one need not be too dull to perceive the broader social purposes
that a statute is designed, or could be designed, to seNe; or too hide-bound to
realize that new times require new laws. One need only hold the belief that
judges have no authority to pursue those broader purposes or write those new
laws.
Textualism should not be confused with so called strict constructionism, a
degraded form of textualism that brings the whole philosophy into disrepute. J
am not a strict constructionist, and no one ought to be though better that, f
suppose, than a nontextualit. A text should not be construed strictly, and it
should not be construed leniently; it should be construed reasonably, to contain
all that it fairly means. The difference between textualism and strict
constructionism can be seen in a case my Court decided four terms ago. The
statute at issue provided for an increased jail term if, "during and in relation to ..
(a) drug trafficking crime, "the defendant "uses .. a firearm". The defendant
this case had sought purchase a quantity of cocaine; and what he had offered
53
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give exchange for the cocaine was an unloaded firearm, he showed
to the drug-seller. The Court held, f regret to say, that the defendant was subject
the increased penalty, because he had "used a firearm during and in relation
to a drug trafficking crime." The vote was even close (6-3) I dissented.
But while i'he good textua!fst is not a litera!ist, neither is he a nihilist. Words do
have a limited range of meaning, and no interpretation that goes beyond that
range is permissible. favorite example of a departure from text - and
certainly the departure that has enabled judges to do more freewheeling law-
making than any other pertains to the Due Process Clause found in the Fifth and
Fourteenth Amendments of the United States Constitution, which says that no
persons shall ''be deprived of fife, liberty, or property without due process law''.
It has been interpreted to prevent the government from taking away certain
liberties beyond those, such as freedom of speech and of religion, that are
specifically named in the Constitution. (The first Supreme Court case t use the
Due Process Clause in this fashion was, by the way, Dred Scott not a desirable
parentage.) VveJI, jf may or may not be a good thing to guarantee additional
liberties, but the Due Process Clause quite obviously does not bear that
interpretation. By its inescapable terms, it guarantees process. Property
can be taken .by the state; liberty can be taken; even life can be taken;
without the process that our traditions require notably, a validly enacted law and
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a ta1r rr1at fo say ornervv"Ise 1s aua;1 ot1 t.e:liU8i!!Sm
1
1
anu r:o renaer
democratically adopted texts mere springboarcls for judicial law making.
54
the criticisms leveled against textuafism, the most mindless is that it is
"formalistic." The answer to that is, of course it's formalistic! The rule of law is
about form. for example, a citizen performs an act let us say the safe of
certain technology to a foreign country which is prohibited by a widely publicized
proposed by the administration and passed by both houses of Congress, but
not yet signed by the President, that sale is lawful. !t is of no consequence that
everyone knows both houses of Congress and the President wish to prevent that
sale. Before the wish becomes a binding law, it must be embodied in a bill that
passes both houses and is signed by the President. Is that not formalism? A
murderer has been caught with blood on his hands, bending over the body of his
victim; a neighbor with a video camera has filmed the crime; and the murderer
has confessed in writing and on videotape. V11e nonetheless insist that before the
state can punish this miscreant, it must conduct a full-dress criminal trial that
results in a verdict of guilty. Is that not formalism? Long five formalism. ft is
what makes a government a government laws and not of men.
I A - 1 : Review Questions - ------- I

I
III ) V\ihat is textuaiism respect to statutory interpretation? (You I
Il1
j
( summerlEie the idea sca!ia or any other jurist). I
~~ !'.
I (2) is a textua!ist not a litera!ist(as claimed by Justice Scalia)? l
i I
!! {3}
j!' ,
VVhat is due nrocess?
.-
I
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l
i (4)
fu
Why do you think scalla describe his critics as "most mindless? I
I I
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SECTION 2: Constitutional interpretation
Justice Scalia(as referred to above observed:
"The distinctive problem of constitutional interpretation. The problem is
distinctive, not because special principles of interpretation apply, but because the
usual principles are being applied to an unusual text Chief Justice Marshal! put
the point as we!! as it can be put in McCulloch v. Maryland:
A constitution, to contain an accurate detail of all the subdivisions of which
its great powers will admit, and of all the means by which they may be
into execution, would partake of the prolixity of a legal code, and
could scarcely be embraced by the human mind. It would probably never
be understood by the public. Its nature, therefore, requires, that only its
great outlines should be marked, its important objects designated,
minor ingtedients which compose those objects be deducted from the
nature of the objects themselves.
In textual interpretation, context is eve11;thing, and the context of the Constitunon
tells us not to expect nit-picking detail, and to give words and phrases an
expansive rather than narrow interpretation though not an interpretation that the
language not bear.
56
- ' ""'"""''""
l»
I)
I
Explain the claim that there is a distinctive problem when interpreting
constitution.
I
I (2) What is the living significance of the case McCulloch v Maryland, 17 US (4
I 1Nheat) 316, 407(1819)?
(3) What do you understand by giving words various interpretation fn
contribution interpretation?
(4 Explain the object of s.137(i) of the Penal Code, cap87.
(a) The Original meaning:
David Lyons {Constitutional Interpretation and Original Meaning, Socia!
Philosophy and Policy [1987] explained the original meaning of constitutional
provisions in this way:
A distinctively originalist mode of interpretation assumes that the doctrinal
content of the Constitution was completely determined when it was adopted and
that constitutional doctrines can be identified by a value-free factual study of the
text or of "original intent.
One would expect a distinctively originalist approach to adjudication to hold that
constitutional cases should be decided on the basis of doctrines in the "originar'
Constitution (that is, the Constitution interpreted in an originalist way), and on no
o-tJ1er-bersis ivhatsoe'ver~
57
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Doctrines drawn from general philosophy, ideas about meaning morals, for
example, a significant role contemporary originaiist theorizing. This point
is important because these philosophical notions are dubious and controversial.
ft must be emphasized, however, that some of the same philosophical ideas
have wide currency in legal theory generally.
Although originalism has relatively few defenders, its most prominent champions
are highly placed within the federal government. These include Robert H. Bork,
judge on the United States Court of Appeals for the Distinct of Columbia. Circuit,
Edwin Meese Attorney General of the United States, and William H.
Rehnquist, of the United States Supreme Court.
An origina!ist' mode of interpretation holds that the doctrinal content of the
Constitution was fixed when (or by the time that) the Constitution was adopted.
and that constitutional doctrines can be identified by a value free factual inquiry .
.An intentionalist version of originalism holds that we must understand the
Constitution in terms the "intention" of its framers, adopters, or ratifiers, such
as the specific applications that they had in mind, those they would have been
prepared to accept, or thek larger purposes.
58
While two or more individuals can share an intention, it is by no means clear how
(or whether it is always possible) to aggregate the relevant attitudes of the
members of a group so as to determine their collective intentions. The answer
that one gives to such questions should affect originalist interpretation, so the
selection of any particular criterion of original intent as the basis for interpreting
the Constitution requires specific justification. In the absence of a satisfactory
rationale, we should regard any particular criterion of original intent as
theoretically arbitrary.
It follows that intentionalism is a special theory of constitutional interpretation, not
a platitude. Either it derives from a failure to appreciate the distinction between
the meaning of a text and what its authors meant to convey; or else it
presupposes some reason for holding that the meaning of the constitutional text,
unlike that of texts general!y, is a matter of authors' intent1 • So internationalism is
either confused or else requires substantial justification.
\Ii/hat might justify intentionalist constitutional interpretation? Originalists might
appeal to (1) the idea (not limited law) that interpretation should generally be
governed by authors' intentions; (2) a specifically legal canon of construction' or
(3) some theo11; of political morality that implies that we are under an obligation to
respect intentions of the framers, adopters, or ratifiers.
) tntentionaHon as a genera! approach interpretation. The that textual
.n1Terpre._crnon.
' t '. ' generauy
seeKs If to ceterrrHne
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vvnen
59
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our primary concern is what some individual had in mind, as in the case of
persona! communications, studies of literary figures, and in law, wills, and
contracts. The question is whether our proper concern when interpreting an
authoritative public text such as a constit1,.,1tion is to determine 1Mhat is authors had
in mind. The suggestion seems to me implausible. An important feature of law's
normal business is that it requires justification. The same applies, of course, to
judicial decisions, including those that turn upon legal interpretation. They
require justification, too. The justification of judicial decisions, like the justification
of the normal business of the law generally, cannot be understood ln narrowly
legalistic terms. Adequate justification concerns not merely whether something is
required or allowed by law but, also whether what the law does is what I have
elsewhere called "defensible." Ail of this suggests that the need for justification
may properly regulate matters legal and specifically constitutional
interpretation and, thus, that these matters tum on political morality.
(1) What is the distinctive original feature of constitutional interpretation?
(2) does originaiism have few defenders?
(3) Should constitutional interpretation be governed by the intentions of its
author?
does business require Discuss.
60
t2) !ntentionalism as a theory of legal interpretatic;m. Could intentionalism be
based on a general canon of construction for legal instruments? The possibility
is suggested by the fact that statutory construction is said to seek out "legislative
intent". But there are several difficulties· here. Insofar as constitutional
intentiona!ism relies upon ? canon of constn..iction that derives from precedent or
common law, there will be some difficulty incorporating such a theory of
intentionalism into originalism.
The upshot is U1at constitutional intentionallsm is profoundly problematic. ·There
is no obvious linguistic or moral basis for interpreting the Constitution by
reference to the intentions of an exclusive political group, a~ opposed to the
meaning of the text. When these considerations are combined with other
substantial objections to internationalism, the theory seems unpromising indeed.
(3) lntentionali:.1m as a theorem of political morality .. Our discussion suggests
that we should seek a rationale for constitutional intentionalism in the political .

moraHty of constitutional creation and application, that is, in principles that
explain why the Constitution is worthy of respect and morally binding. Two ideas
are provided by oolitica! rhetoric. · One, already noted, refers to a "social
contract." Another, assert~ within as well as.outside the Constitution, holds that
it t:omes from "the people".
61
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The latter idea is promising because contemporary originaiist, like most
constitutional the;orists, emphasize the· predominantly "democratic" character
our constitutional arrangements. Representative government . nicely
complements popular sovereignty. Political rhetoricsuggests that "the people"
knowingly and freely agreed to respect government so long as it conforms to the
Constitution, and that 'the people" are accordingly bound by that agreement. But
this does not yet yield the constitutional theory of original intent, which requires
that the Constitution be understood in terms of the "intentions" of a special
subclass of "the people," namely, the framers, adopt~rs. or ratifiers, as opposed·
to (say) the understanding that one might have of the Constitution based on text
meaning.
A- 3: Review Questions
(1) Can lntentionaiism
.
be based on a general
I
canon of conduction?
(2) It is claimed that constitutional intentiona!ism is problematic. Evaluate.
(3) 'What is the relevance of "social contract" respect to constitutional
interpretation?
(4) Do people freety and knowingly agree to respect government?

,I.
f (5) DistL -,, iish h=3tween framers and adopters of constitution.

(6) . Is there any difference between textua!ism and originalism as regards
constitutional interpretation?
6?
The originalist alternative to intentionalism is textualism, which comes in tvvo
varieties, strict textualist purporls to construe words and phrases very
narrowly and precisely". Brest appears to argue that this is untenable both as
textual interpretation and as originalism: "An origina!ist would hold that, because
interpretation is designed to capture the original understanding, the text must be
understood in the contexts of the socieiy that adopted it. This means that
textualism must be "moderate" to be plausible. "A moderate textualist takes
account of the open-textured quality of language and reads the language of
provisions in their social and linguistic contexts".
other words, Brest judges the only legitimate original/st alternative to
intentionafism to be a reading constitutional language as "open textured.
Unforlunately, Brest does not explain what he takes this to mean. But his
reference to the spurious precision of "strict" textualism suggests that we might
understand "moderate textualism" by reference to Hart's use of "open-textured"
when he introduced that technical term into legal theory.
Foflowing the received wisdom of the time, Harl held that al! terms in "natural"
languages (which include the !anguage of the faw) are "open-textured." An
"open-textured" word has a core of determinate meaning, encompassing fact
situations to which it uncontroversially applies, and a "penumbra" encompassing

~"
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63
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The idea "open texture" assumes meaning of a is indeterminate
whenever there are reasons for and against applying the word. This aspect
of the theory of "open texture" provides a theoretical rationale for a view that is
widely accepted by legal theorists, namely, that legal language has indeterminate
meaning insofar as its proper application is unclear.
To characterize constitutional language as "open textured,, is to imply that the
doctrines given by that language are incompletely formed. Provisions that many
theorists seem to believe fit this description to an "extreme degree include the so-
called "vague clauses" guaranteeing "free-speech," "due process" 'Just
compensation," "equal protection," and the like. On the "open texture" model,
these provisions are seen as having tiny cores of clear (and therefore
determinate) meaning and relatively wide unclear (and therefore indeterminate)
meaning and relatively wide unclear (and therefore indeterminate) penumbras.
- 4: Revnew Questions
l
I
Ii
) What is meant by Capturing the original understanding? ¥
j '
~
I (2) What is open-textured quality language? i
I
6
J
(3) Hart argued that some words are indeterminate. Explain, and give !
Ii
I 'l
! examples.
l
I !,
i Give examples of vague clauses under the Zambian Constitution. !
fj
I I¼'
I i
II
f
64
Originalism regards the authority of the "originar Constitution as axiomatic,
whereas non-originatism holds that adherence to the Constitution requires
justification and that principles of political morality that are capable of provia'ing
such justification might also justify deviation from it.
"Moderate" originalism regards unciear constitutional language as "open-
textured," or inherently somewhat vague. It also accepts the judicial practice of
deciding cases under unclear aspects of the Constitution. But it seems to regard
the constitutional "interpretations" that are used as creating, and the resulting
decisions as applying, doctrines that are extra constitutional judicial amendments
to the "original" Constitution. On this view, "moderate" originaJism's approach to
deciding cases under unclear aspects of the Constitution is equivalent to non-
origina!ism. Such decisions would be condemned by a "strict" origfnalist who
holds that, as courts have no authority to amend the Constitution, they should
refrain from doing so.
Originaiism seems to derive its initial plausibility from a simplified conception of
how written constitutions work. Interpretation in terms of original intent promises
a stable, uncontroversial version of the Constitution. But intentionalism faces
overwhelming difficulties and appears to lack compensating justification, either
poHtical or linguislic terms.
65
.,._,,,}iftf?!,}R!!l}fH{.;,-
C'i)/.5»%t'L
A- 5: i.,,,,,,.,.,,ei.,,u Questions
(1) \Nhat is the main contention of originalism regarding constitution?
(2) What is a "moderate" originalism?
(3) Describe a "strict" originalist.
1
,,
is tne promise of original intent?
·,
SUMMARY:
'-
2004 the Oxfords University Press pubiished an influential article by Professor
Kent Greenawa;t of Columbia University Schoo! of Law dea!ing with
Constitutional and Statutory interpretation. The summary that follows is c
condensed from that article:
(1) One very important principle o-f Law is that courts (in Common Law
jurisdictions) follow precedents (guided by the doctrine of stare decisis).
(2) Interpretation is more than the process of discerning the original meaning
a constitutional and statutory provisions.
{3) Interpretation involves the construction of legally authoritative text. But
certain factors such as the authority of constitutional and statutory provisions, the
poHtlca! status the agency that enacted the provision ln que.stion,
of the textual language, and the age the provisions.
66
993), legal Reasoning and Legal Theory. Oxford. Clarendon
Press.
Patterson, D.(1996), Law and Truth. New York: Oxford Press.
Raz, j_ 990), Authority. Oxford: Basil Blackwell.
Scalia, Antonin(1~96), A Matter of Interpretation. Princeton: Princeton
Press.
Cases
Associated Provincial Picture House Ltd v Wednesbury Corporation
(1948) 1 KB 223 Church of the v United States, 43 US 457
(1892)
Granda!! v Nevada, 73 US 137, 1 Cranch 137(1803)
Marbury' v Madison, 5 US 137, 1 Cranch 137(1803)
McCuloch v Maryland, 17 US(4 wheat) 316(1819)
New York Times v Sullivan, 376 US 254(1964).
68
,,,'>·)/-'if•X)-,,'
ZAMBIAN OPEN UNIVERSITY
SCHOOL OF LAW
SUPPLEMENT
TO
MODULE LL 38 (LAW & SOCIETY)
JURISPRUDENCE U
TO BE USED AS PART OF MODULE LL 38
SIMON KULUSIKA
© Simon Ku!usika 2014
Zambian Open University
LUSAKA
)1'ikKci!Ji0Y"
SUPPLEMENT
TO
MODULE ll38
RISPRUDENCE II: ll 3.8 (LAW & SOCIETY)
TO BE USED AS PART OF MODULE LL 38
SIMON E. KULUSIKA
Simon E. Kulusika 2014
Zambian Open University
Lusaka
,,,J}l./JY'•C
UNIT3
LAW AND SOCIETY
Introduction
Law and society movement originated in the United States of America in the
1960s. It spread to other countries, such as, England, Canada, Australia, etc. It
grew as a multidisciplinary enterprise. Its research on law was fashioned on
'social scientific' methods that sought to reveal the 'impact' or effectiveness of
law: i.e. the effects of a particular law, doctrine or legal institutions on
behaviour.
As discussed elsewhere in UNIT I, the basic purpose of law is to satisfy social

needs, such as claims, demands, or expectations of society. It is claimed that
law must serve and protect human needs, and uphold the integrity of the
State. The fact that there are competing interests should not compromise the
basic purpose of law. Common interests of the society's members must prevail
over personal interests. The common interests of the society can be enhanced
where law plays an effective role in social control, social change and the
reform of legal and economic institutions.
In UNIT 3 discussion will centre on four topics: legal order; legal systems; social
control; and social change and related matters. These topics will be outlined
under four sections. At the end of each section, there will be set out review
questions which students should answer to test how much they have gained
from studying that particular section. There also will be a list of further
readings which students are encourage to consult because they provide more
details on the topics under discussion.
SECTION I: THE LEGAL ORDER
The legal order and the political system of a sovereign State are theoretically
distinct. But the two can be considered as a single institution. This section is
concerned with the legal order. It is not only referring to a set of legal rules,
but also comprises the whole legal system of the State. legal system forms the
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topic of Section 2 below. One can take it that legal order covers such concepts
as rules, doctrines, techniques, and the various institutions of the State.
It is claimed that in less developed societies, the primary aim of law is to

maintain peace, avert revenge, and bring to an end inter - ethnic feuds. Under
such situations, it can be claimed that law cannot be considered as an
instrument of social change as discussed in section 4.
As society changes (i.e. advances} the law's role also changes. law becomes
more complex because there are now varied and competing interests within
the legal order. One can note three kinds of interests: personal interests of
individuals, social interests, and public interests. All of them must be
protected if the legal order is to flourish in peace. It is the responsibility of the
government to enact laws through the legislative branch of the government to
address those interests in order to avoid conflict between the holders of those
interests. It is for the courts to safeguard those interests by means of court's
rulings. The aims of such rulings should be:
a. To satisfy as many interests as may be possible without harming public

interests
b. To adjust competing interest in a judicious manner. Court's decisions
should not be arbitrary. This calls for the decisions of courts to be
balanced and guided by the princip\es that similar cases must be treated
in similar manner. By doing so the courts will maintain their impartiality
in adjusting conflicting interests, and increase their acceptability as
institutions that operate in the best interest of the society.
c. To recognise new rights and to extinguish existing rights and they must
give reasons for their decision.
d. To demonstrate that they can be pro - active in the defence of the rights
of those vulnerable members of the society. Such activism must be
progressive if it is to be respected by the public.
The discussion about the legal order is meant to show that any legal order has
certain ends to achieve. That the ends can be realised through collaborative
and cooperative actions of the various agencies within the State, be they public
agencies or private agencies. As such, it can be claimed that the legal order
cannot be separated from the order of society. As a contemporary
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commentator claims 'there is no society without law and no law without soda!
order.' If one accepts the preceding claim, then one can say that the legal
order changes as the social order changes: more about this can be found under
Section 4 below.
REVIEW QUESTIONS
1. What can be said about the methodological differences as adopted by

the natural law theorists and the legal positivists?
2. Why is law a fundamental feature of society?
3. What are the tools for maintaining social order other than law?
4. Can one define a legal order?
5. Which precedes the other: legal order or social order?
FURTHER READINGS
Fuller, L L (1981). The Principles of Social Order. Durham, NC: Duke University
Press.
nd
Hart, H. l. A. (1997). The Concept of law (2 ed.). Oxford: Oxford University
Press.
Raz, J. (1980). The Concept of a Legal System: An Introduction to the Theory of

legal system. Oxford: Oxford University Press.
SECTION 2: LEGAL SYSTEMS
a modem society, there are mechanisms for the proclamation, modification,

and enforcement of the rules by which the life of the members of a society are
regulated. It is also true to say that some societies do not have formal legal
system, such as, courts, tribunals, judges, juries, lawyers, police, etc. Although
they are able to manage their affairs and some sort of stability necessary for
communal progress.
In traditional (as opposed to modem} societies, disputes are managed through

conciliation and mediation rather than through the application of established
legal rules. In these societies, the chiefs and their elders in councils rely more
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on the advice of village elders, or by the invocation of some moral or divine
authority (this practice is found in most parts of Africa). Because, in these
societies, relations are more direct and people in society seem to know each
other, and non - legal, informal mechanisms of social control are used to settle
disputes, and they seem to be more effective,
As these societies are transformed, in developmental terms, the relationships

between the members of the society are also transformed and become more
complex. Shared interests become less prominent. Common interests give
way to special interests of individuals or groups of individuals. Close relations,
such as kinship relations become less important. Access to material goods
becomes more indirect and unequal. The struggle for resources increases
leading to frictions and the escalation of tensions between the members of the
society. As a result, new methods of disputes resolution must be found to deal
with conflicts that are arising. The need for explicit management and
enforcement mechanisms are required. This and other reasons demand the
organisation of the law under a legal system for the management of disputes.
The system ls referred to as the legal system.
it is observed that informal customs and similar devices tend to be inadequate

where the social structures become more complex. Moral, religious and social
sanctions which are informal are also not sufficiently strong enough to deal
with deviance. They are not the appropriate mechanisms for dealing with
disputes between individuals and between individuals and the State. This gives
way to the search for other forms of sanctions which are more effective. The
need for formal, institutionalised and regulatory mechanisms arises as
effective means for the resolution of disputes. The adoption of formal means
of disputes settlement is dearly a change which affects the legal system in
which the change takes place. It can be claimed that a change from informal to
formal settlement of disputes will induce a change in the legal system.
Studies have shown that changes in the legal systems proceed through three
stages. That is the legal system that emerges will pass through three stages:
a. 'Traditional' legal systems. The term 'traditional' is used in place of the

term 'primitive' for obvious reasons.
b. Transitional legal systems.
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c. Modern legal systems.
'Traditional' legal systems exist in societies where development has not taken
place. A number of researchers refer to these societies as simple societies.
The laws of these societies are not written or codified. There may be
differentiation between substantive and procedural laws, but the distinction is
rarely spoken of as such. But a researcher carrying out research on some
aspects of customary law has to keep this distinction in focus. He or she will
discover that customary substantive laws consist of 'rights', 'duties', and
'prohibitions' in general. Customary procedural laws are those laws or rules
which are applied, enforced, changed, and used in the settlement of disputes.
The laws are not applied by established courts, nor enforced by regular police
as in modem societies. But the laws are re3sorted by kin elders, chief's
councils and other big men in the society. The chiefs, council's members,
elders of the village, and magicians assume executive, legislative and
adjudicatory roles in their sphere of influence. When dispute ls brought before
the chief the chief's council wlll be constituted as a court to deal with the
matter. Where there is unrest in the area, again the chief or those acting on
his or her behalf will assemble a body of strong men as police (chief's security}
to restore peace. Once settlement is imposed and law and order attained, as
the case may be, the institutions put in place are quickly dissolved or
dispersed.
Transitional legal systems are found in societies more advanced than the
{traditional' societies. In such societies political systems exist and they can be
distinguished from kinship systems and relationships. The elementary legal
institutions are also found. These consist of the laws, courts, law -
enforcement agencies, and the legislature. The laws of the system are
categorised as public laws and private laws. Another feature of the transitional
legal system ls the emergence of a group of elite who tend to monopolise both
the political and economic activities of the country. Elitist tendency leads to
the legitimisation of inequality in the distribution of resources and share in the
national wealth.
Modern legal systems are found all the structures of transitional legal systems
but with a difference. They are more complex. Modern legal systems are
found in most, if not all, states of the world. In these systems administrative
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law and administrative agencies are pervasive. The laws are based on
constitutions which limit the powers of those who govern. Statutory laws (as
the U. S. A., Zambia, Kenya, South Africa, etc.) replace customary laws.
There is a hierarchy of laws: constitutional laws, statutory laws, subsidiary
legislation, local government laws, customary laws., international law, etc.
It is noted that in modern legal systems, courts play very important role in the
dispensation of justice. They resolve disputes, protect rights, and uphold the
constitution. Cases move from the lower courts to the superior courts. The
superior courts have the power to reverse lower court's decisions on appeal.
The establishment of legislative bodies facilitate the enactment of laws, giving

rise to the development of effective legal structures that enhance social
change. In all modem legal systems laws are uniform, impersonal, and
predictable except under authoritarian regimes. One finds in modem legal
systems justice ls realised by the application of written rules which have a
chain of command. The functions of government are carried on and based on
separation of powers of the three branches of government: the executive, the
legislature, and the judiciary. There also is the insistence on the need to
administer the affairs of the State in order to promote common good.
MAJOR LEGAL SYSTEMS
Contemporary legal systems of the world can be classifies as follows:
1. The Civil Law Systems (the so - called Romano - Germanic Legal

Systems).
2. The Common law Systems.
3. The Islamic Legal Systems
4. The Socialist Legal Systems (these will not be considered in this section).
1. The Civil Law Systems are found in most European countries, most of the
former colonies of France, Germany, Italy, Spain, Portugal, and Belgium.
The laws are based on the Code Justinian (sixth century A. D.).
2. The Common Law System: the English legal System is derived from the
common !aw which 'developed after the Norman Conquest in 1066 A. D.
There are other legal systems which are based on the common law. For
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example, the laws of the United States of America, Australia, Canada,
India, and many countries which were the colonies of Great Britain. In
most of these countries, laws are not only based on acts of parliament,
but also on 'case - law' which relies on precedents set by judges
deciding a case. A commentator asserted that 'the doctrine of
"precedent" is strictly a common law practice.' The common law system
is different from the Civil law systems and the Islamic law system.
3. The Islamic legal System: Islamic law (Shari'a) is an integral part of the
Islamic religion. The Islamic religion (Islam) defines the character of the
legal order and social order. All Islamic laws are revealed by Allah (God}
to His Messenger (Prophet) Muhammad, or created by human beings in
the name of Allah. Islamic laws are not derived from case - !aw,
precedents, or legialation. It is derived from four main sources:
a. The Holy Qur - an (as given to the Prophet) is the main source of
Islamic laws. Qur- an itself says:
And this is a Book
Which We have revealed
As a blessing: so follow it
And be righteous, that ye
May receive mercy.
S. 6: A. 155
(Mushaf Al - Madinah An - Nabawryah)
b. Sunna is the second source of Islamic Laws. This consists of the
sayings, acts and allowances of the Prophet as reliably recorded in
the Hadith (Tradition).
c. ljma (judicial consensus) is the third source of Islamic laws. It is based
on historical consensus of qualified Ulama (legal scholars). It limits
discretionary power of individual Gadi (judge).
d. Qiyas (analogical reasoning) is the fourth source of Islamic laws. It is
a kind of analogical reasoning. It is applied in cases where Qur - an
does not give a dear injunction, or the other two sources. Islamic
laws provide rules of behaviour in various areas of social
interactions, including family relations, inheritance ( a woman
receives half that a male person gets), and religion rites. The laws
provide for punishments for crimes, such as, adultery ( for married
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persons by stoning until the accused dead), false accusation for
adultery, intoxication (including handling or retaining) (by flogging},
theft (by amputation of the right hand), and robbery (death).
On occasions, the punishment of 'an eye for an eye' may be imposed.
Pakistan in 2003 a Gadi in Bahawalpur in the Punjab province
ordered an acid to be applied to an accused person (a man) who had
blinded a woman by throwing an acid on her. This was both a
retribution and deterrence, as the court asserted. Whether that aim
was realised is difficult to assess.
To under the rationale of Islamic punishment, one needs to
understand Islam and the tradition that has developed after Khaifah
Abu Bakr ascended to the Khalifate following the passing on of the
Prophet Muhammad.
The institutions which form a legal system in a modem state include: the
political parties, Non - governmental organisations, civic societies, health
workers, social workers, law enforcement agencies, lawyers, para - legal
persons, the churches, trade unions, the various associations, private
businesses, dubs (carrying on cultural and other activities, courts, tribunals,
the government (executive, legislature, judiciary), the military, the security
services, the fire - brigade, local authority, traditional authority, in addition to
the laws, doctrines and philosophical discourse, and many more.
REVIEW QUESTIONS
1. How do you justify the soundness of the claim that law is 'authoritative
and reactive problem - solving system'?
2. How would you categorise the content of law?
3. What do you understand by the term 'legal system'?
4. In what way do the civil law systems differ from the common law
system?
5. Why is ljma in Islamic law a source of the law?
FURTHER READINGS
1
:JP. "'/2-p:J!ffi:VH:"',,"
Abel, Richard L (ed.) {1995). The Law & Society Reader. New York, NY: New
York University Press.
nd
Baumgartner, Mary P. (1999). The Social Organisation of Law (2 edn.). San
Diego, CA: Academic Press.
Cooper, John, Nettler, Ronald L., and Mahmoud, Mohamed (2000). Islam and
Modernity. New York, NY: L B. Tauris Publishers.
Kritzer, Herbert M. (ed.) {2002). legal Systems of the World: A Political, Social,
and Cultural Encyclopedia. Santa Barbara, CA: ABC- CLIO.
SECTION N3: SOCIAL CONTROL
A society needs a reasonable degree of harmony and peace in order to achieve

development in all spheres of social life. It can realise the development by
taking measures to control behaviour that is capable to create disruptive
activities. One such measure is social control. Social control is put in place to
ensure that law and order prevail, and that the predictability of behaviour is
made possible. There are many forms of social control. In this section
attention will focus on two forms of soda! control: informal social control and
formal social control.
1. Informal social controls:

These involve reliance on the way members of a particular group, e.g., a
clan or an ethnic group applying its habitual way of doing thing which all
members of the group have taken as binding on them. The may also be
mores which has taken root and considered by the group as inviolable in
their dealing with one another. The violation of these mores attracts
ridicule or condemnation or outright rejection of the person implicated
as no longer one of them. Actions of these kind are more painful and
effective to prevent misbehaviour. The way how people go about
carrying on with their duties within a confined locality are observed in
specific ways by members of the group because people want to avoid
blame by the other members of the group. Condemnation can be
expressed different ways, such as, approving or disapproving
,.J'!Ji?t'
something said or done or both. They tend to be effective in groups
where relations are intimate and where 'division of labour is simple.'
Researches on behaviour have shown that 'informal social control is
stronger in small, traditional, more homogeneous communities than
larger, more modern, heterogeneous communities.' In the former
communities, social pressure works in favour of compliance to mores
than disobedience. The work of law enforcement agencies is made
easier as everyone tends to cooperate in ensuring that law and order
prevail in the community.
2. Formal social controls:
Formal social controls are mechanisms of social control. They are useful
tools of control where informal social controls do not longer work or
they prove to be inadequate. They are characterised by 'the explicit
establishment of procedures. These procedures are delegated to
agencies, such as, the police for the purpose of implementation and
enforcement. That is the 'procedures involve mechanisms of imposing
conformity.' In certain situations, there will oe reward for those who
conform to the requirements of the procedures imposed.
REVIEW QUESTIONS
1. Is it possible to define social control?
2. What are the two types of social control?
3. Why is informal social control effective in smaller group of people?
4. What are the features of formal social control?
5. Is law a mechanism of social control? Elaborate.
FURTHER READINGS
Foster, Martin L (1978). Civil Commitment and Social Control. Lexington, MA:
Heath.
Gibbs, Jack P. (ed.) {1982}. Social Control: Views from the Social Sciences.
Beverly Hill, CA: Sage Publications.
10
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Greenway, William K., and Brickey, Stephan L (eds.) (1978). law and Social
Control in Canada. Searborough, Ontario: Prentice Hall of Canada ltd.
Norris, Clive, and Wilson, Dean (eds.) (2007). Surveillance, Crime and Social
Control. Burlington, VT: Ashgate.
SECTION 4: SOCIAL CHANGE
The development of legal institutions is associated with or preceded by social

change. There is no agreement on this assertion. Debate seems to centre on
whether legal change precedes social change or social change comes before
legal change, or both of them take place at the same time. In this section no
attempt will be made to answer these questions. The section will confine its
exposition to the examination of legal and social changes as interrelated
occurrences.
Proposition: Law is 'an effect and a cause of social change'. Law also can be
viewed as an instrument of social change. Social change is to be understood as
the 'modification in the way people live. The transformation of the methods of
work, from manual to machines, e.g. computers, is clearly a change for the
better. From being governed by the councils of village elders to an elected
representatives sitting inn parliament under cool air - conditioned chambers,
etc. In short social change can be seen as the restructuring of the 'basic ways
people in a society relate to one another' conditioned by other activities, such
as, government, economics, education, health, recreation, tourism, etc.
law and Social Change
It is argued that law should be determined by the 'sense of justice and moral
sentiments of the population'. A contrasting view is that law should be 'a
vehicle through' which social change should be effected.
As a commentator claims, "these views still represent the two extremes of a

continuum representing the relationship between law and social change." In
this section it is argued that law plays an effective part in social change. That it
is immaterial which come first. That law plays less immediate role in
traditional societies where law is largely not codified, and case !aw is absent.
11
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The reciprocity between law and social change may be considered in this
respect.
Law as an instrument of Social Change
There is no disagreement regarding the influence of laws on changes in society.

Laws can induce development in any society unless they are misapplied. Good
examples of the role of law in inducing change in society can be taken from
Africa following the attainment of independence. African countries adopted
constitutions, passed acts of parliament, issued decrees and circulars, all
intended to regulate public life and to foster change to the better for the
people. The continued underdevelopment of some countries in Africa was due
to maladministration and inconsistency in the implementation of
developmental programmes due to injudicious application of legislation.
In the U.S.A. the partial elimination of inequalities in the 1960s can be

attributed to effectiveness of the application of civil liberty enactments
through affirmative action. When the revolutionary government of Chairman
Mao assumed in China in 1949, it issued series of decrees to eliminate
prostitution, gambling, drug trafficking, etc.
contemporary societies the role of law in social change cannot be ignored.

all areas of social life, such as, education, health, housing, energy,
transportation, environment, etc, law plays important role in successful
implementation of development programmes in those areas.
A number of commentators claimed that law's role for social change can be
enhanced if certain conditions are satisfied, including the following:
1. The law must meet the requirements of validity. In the sense that it is
accepted by the public and entertained by the courts and other law
enforcement agencies.
2. The law must be consistent with the prevailing values and norms of the
society.
3. The law should be seen to be workable as is the case with similar law
other countries with similar level of development.
12
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4. The law must have been enacted by those who believed in social change
through law, and the agencies of the state responsible for its
implementation should adherents of social change through law.
5. The law should provide rewards for those in support of it and provide
also punishment for those who tend to obstruct social change through
law.
6. The law should not be arbitrarily applied.
7. The law should promote the common good without disadvantaging the
most vulnerable in the society.
8. The law should be accessible to all to whom it is addressed.
For law to succeed in its noble mission of change, it must be provided with
facilitative environment rather than hostile conditions, such as, limited
economic resources, and political instability as is the current situations in
South Sudan and Central Africa Republic.
REVIEW QUESTIONS
1. In what ways does social change affect the lives of people in modem
societies?
2. What are the factors that accelerate social change?
3. What are the implications of the assertion that 'the relationship
between law and social change is controversial'?
4. What is implied in 'law is the agent of change'?
5. What is the effect of political instability on social change?
FURTHER READINGS
Allott, A. (1980). The limits of Law. London: Butterworths.
Anleu, Sharyn I. Roach {2000). Law and Social Change. Thousand Oaks, CA:
Sage Publications.
Ashante, Molefi Kete (2003). Afrocentricity: The Theory of Social Change.

Chicago, IL: African American Images.
13
th
Vago, Steven {2004). Social Change (5 edn.).Upper Saddle River, NJ: Prentice
Hall. ,
SECTION 5: LAW AND LAWYERS
Within the legal system of a given state there are institutions which are core to
operation of the system. Two of these institutions are the lawyers and the
police. These will be considered in outline in this section. First to be
considered is the lawyers.
It can be said with confidence that law has a much more diverse roles in the
legal systems of modem societies. As societies advance, the degree of
differentiation increases and with it the problem of integration of society
intensifies for which 'traditional and informal means of social change becomes
ineffective. Rapid social change in many areas of social life reduces the
potency of regulation' that rely on traditional means of social control. The
intensification of contractual relations between private persons and between
private persons and the various institutions of government in addition to the
complexity of government organisation requires the service of institutions or
persons who can mediate between the constants to a contract or contracts.
The lawyer ls the right person to answer that call.
In addition, the institutionalisation of formal, impersonal modes of disputes

resolution, such as ADR, generates high levels of demand for specific legal
expertise. Again, the emphasis is 011 obtaining the service of lawyers in the
legal systems of modem societies. The roles of the lawyer are seen to go
beyond mere counselling, contract drafting or arguing cases in courts and
tribunals.
For the lawyer in practice whether one calls him or her a counsel, or advocate
the partisan loyalties of the lawyer, within the market, remains predominant.
As a commentator claims, "The institutionalisation of the partisan role of
counsel as well as other crucial aspects of modern legal systems are in
jeopardy wherever strongly held substantive ideas about justice and the
common good intrude without mediation into the process of adjudication."
14
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partisan the lawyer is accepted 1 it not impede the due
process of law.
modem societies a lawyer may assume a variety of roles a competitive

market:
advocate in courts, trlbunals1 or administrative agencies.
lobbyist at a!! levels government and large investment companies.
negotiator of a major agreement involving trade unions.
draftsman or a draftswoman for private wills or other legal documents.
counsellor for various undertakings.
mediator in cases where settlement out of court is envisaged.
These tasks which a lawyer has to ca out can be very demanding and if not
carried out efficiently may adversely impede the progress of the lawyer. They
demand not only !ega! background but also additional training and expertise,
and commitment.
Profession
lawvers are supposed to be members of the legal profession. That is men and
women who have passed the legal practice or practitioners examinations,
admitted to the Bar, compteted apprenticeship with a reputable law firm, and
he or she has been issued with certificate of qualification for professional
practice as a solo practitioner or a junior associate. This is a restrictive
description of a lawyer. A lawyer who is admitted to the Bar has many options:
he or she can apply to the judiciary for the position of a professional
magistrate. Without being admitted to the Bar he or she can only aspire for
the position of lay - magistrate. He or she is not eligible for a position on the
bench even if he or she has been in the wilderness of law for more than fifteen
years. He or she cannot be appointed as Attorney - General or as Solicitor -
general or Director of Public Prosecutions (DPP). Otherwise, he or she can
assume any title, such as !ega! advisor or legal consultant, or a Broker of an
insurance policy, etc. Beyond that he or she cannot ca!! himself or herself as
15
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advocate so a so, Esq. or State Counsel (SC). !f he or she venture, that
attract a Contempt proceeding.
!t is claimed that a holder of a law degree is not necessarily a 'lawyer'. Even

academic law holders cannot fit the description of lawyers? unless they are also
members of the Bar of the risdictlon where they are lecturing or teaching.
it is not the end of the road, not to be admitted to the Bar. A number of
lawyers give advise on drugs and drug trafficking, debt settlement, immigration
requirements, conflict settlement, counsel those victims of gender based
violence, etc.
Zambia a lawyer needs to be admitted to the Bar in order to become a

member of LAZ. In England the Bar Council is for Barristers, and the Law
Society is for Solicitors. In the USA there are many institutions authorised to
organise the Bar examinations and to set standard of admission to the
professional practice. The processes of examinations and admission are not
monopolised by one agency as in most African countries (e.g. Sudan, Zambia,
etc).
Lawyers in the practice may be categorised as follows:
Newcomers from the law school who may practice as solo practitioners
a law company or associate as junior associate. The newcomer
do research, write memoranda, prepare briefs, !earn how courts
operate, and may confer with the partners.
2.. Middle level Associates, these have spent some time with the firm, e.g.
an associate. He or she takes more responsibility and begin to
specialise.
3. Senior Associates: they have greater clients contact, are more
independent, and may have a number of junior associates under nim or
her.
junlor Partners: young partners have more responsibility than senior
associates. They advise both dients and colleagues, supervise
associates, and may sign opinion letters.
5. Middle Partners: their duties involve greater contacts with clients, and
rendering of more advice and greater responsibility for supervion.
16
-~-'MJhi;.~;'.''-"i
6. Senior Partners: they are the broad advisors and top administrators of
the firm. They do not do research, as this is supposed to be done by
associates. They are the core of the law business.
7. Big law firms, the so - called 'Chambers'. It can be claimed the big law
firms look for first class lawyers who can deliver services to the clients
which are usually big companies, or corporations or investment entities.
As a commentator claims big !aw firms 'represent big blocks of power
and money.' These law firms do not only deal with big companies 1 but
their clients may involve countries across the world.
law professionals enjoy a high position of respectability in society, and also

earn high income than other professionals other than Doctors in private clinics
or hospitals. In any case, to survive in competitive environment of business
lawyers must provide efficient legal services to the public in general.
THE POUCE
ln modem societies the police play important role in the dispensation of justice
and the consolidation of the status of the legal systems. In criminal matters
and in other spheres of the law, police enjoy wide powers: these include the
powers to interfere with the legal rights of the members of the public in the
interest of order. They can arrest, detain, enter premises, search same, and to
search persons in the streets or elsewhere in the jurisdiction. The police can
seize property, and mount surveillance. The law, in ensuring that police do not
abuse their powers, has put in place measures for the control of police powers.
a democracy, police are expected to exercise their powers with due
consideration to the human rights of those subjected to police actions.
REVIEW QUESTIONS
1. Who is a 'lawyer' as defined by law?

2. What are the requirements of law practice in Zambia?
3. ls the admission to the Bar mandatory?
4. What is the rationale of having the rank of Junior Associates?
5. What is the role of the police in a modem society?
17
"k;¢Y::;, ~
FURTHER READINGS
Francis, A. M., "legal Ethics, the Marketplace and the Fragmentation of legal
Professionalism'\ (2005) 12 {2) l. J. LP. 173.
Jones, T., Newburn, T., and Smith, D., "Policing and the Idea of Democracy",
(1996) 36 B. J. Crim. 182.
Mann, A., "Fusion of the legal Professions?", {1977) 93 L Q. R. 367.
Partington, M., u Academic lawyers and legal Practice in Britain: A Preliminary

Reappraisal", (1988) 15 J. LS. 374.
18
MM(f/f/{D'j/

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MODULE LL 38 / LL '-+ 4 '2..

KUL USIKA S.E

·1 THE CENTRAL THEME OF LEGAL

(A) TOPIC The nature and functions Law - 1

SECTION 1 The nature of lavv - 3

SECTION 2 The function of Law - 10

(8) TOPIC The Analysis of Law - 17

SECTION 1 Law and morals - '18

SECTION 2 Law and rights - 20

SECTION 3 Law and justice - 23

SECTION 4 Law and democracy - 35

2 JUD!CiAL PROCESS - '<0

(A) TOPIC Adjudication - 40

SECTION 1 Discretion and reasoning

SECTION 2 Stare decisis and precedent - 46

(B) TOPIC !nterpretation - 48

SECTION 1 Statutory interpretation - 49

SECTION 2 Constitutional interpretation

This is modu!e !I on the philosophy of Law. lt is complementary to Module 1. It

a dealing the philosophy of Law abstraction can hardly be avoided.

students: taking the ''-''"''"''·"' Law seriously!

THE CENTRAL THEME OF THE LEGAL ENTERPRISE

(A) TOPIC The nature and functions of Law - ·1

SECTION 1 The nature of Law - 3

SECTION 2 The functions of Lavv - 10

(8) TOPIC The Analysis of Law - 17

SECTION 1 Law and morals - 18

SECTION 2 Law and rights - 20

SECTION 3 Law and justice - 23

After studying unit 1, should be able

® Recognize what a central theme of the legal enterprise is.

Any on the philosophy of (or jurisprudence) addressed to students at

their undergraduate Law degree aims at enabling students to familiarize

theme of legal enterprises wi!I be elucidated by the examination of tile nature

should be reminded that it is part of the major jurisprudential debate as to

purpose(s) or function(s) of Law?

(A) TOPIC The nature and functions of Law

SECTION 1 The nature of Law

Most writers on jurisprudential or legal philosophical works would appear to

questions regarding the nature of Laws. The examination of legal

systems(beyond domestic boundaries). The exploration of the connection of Lavv

to democracy, justice and morality. Such a study requires the use of

understanding of the nature and worklng of Lavv.

proposition whether or not Law is exclusively a formal concept That is Law

consists in rules and principles adopted in a country(x) through a legally

recent attempts, started by H. L. Hart, and continued contemporary

positivists to adopt a more as less inclusive !egai positivists, position as to

betvveen them centred on the obligation obey Law.

! of basic aspects of life in any society"? (You need to do more reading in

II order to b enabled to answer this question)

! (4) Describe the essential parameters of the application of law(answers

provided in the discussion that follows below).

Law is normative. It is founded upon "ought" propositions. It demands

comtJHance. For exam.pie, Zarnt ian Penal Code

imprisonment. \/!here {subsection(4) of this section) the offender is a chiid, he

may be liable to "such community service or counselling" as the court may

determination of what law is may be based on the criteria of identification.

reveal another characteristics of Law. That is the coercive nature of Law. !t is

element of Law. St Augustine also emphasized the dimension of force in Law.