DEFINITION OF LAW

1. The term “law”

To the uninitiated person, law is a simple term. But to analysist by the initiated,
there are many uses of the word law. In the study relating to law or
jurisprudence the first task is to try to throw light on the nature of law.

There are various schools of jurisprudence and each school tends to set up its
own definition. Thus some authorities have defined law as:

Law is an obligatory rule of conduct. It is also said to be the regime that orders
human activity and relation through systematic application of politically organized
society or social pressure backed by force in such society. Law is also defined as
the aggregate of legislation, judicial procedures and accepted legal principles. It is
also said to be a set of rules dealing with a specific area of a legal system.

For the purpose of illustration law has a two-fold aspect:

a) It is an abstract body of rules.
b) It is a social machinery for securing order in a given community.

The sensible approach is to admit that both these sides of law must be considered
or taken altogether. But some schools of thought put exaggerated emphasis on
the first; others put their emphasis on the second.

Obviously the study of law which considers only the theoretical rules of the
books will be very different from that which will attempt to study law in
action.

2. The essence of definition.

Definition has got conceptual problems. In defining anything the first is to

discover the genus to which a res (thing) belongs and then the particular
characteristics which distinguish it from other species of the same genus. The
accepted notion is that each res has an essence distinguishable from the other
characteristics or mere incidents. It is necessary to make a distinction between
situations when we refer to things or concepts. But using words on both occasions

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causes a problem. The questions often posed is: do we define things or words or
concepts when dealing with the problems of definitions, are we realists or
norminalists or conceptualists?

The notion of definition was invented by the Greek Philosphers, Socrates and
Plato, in what is called the classical era. At that time only “real definition” was
thought of. It was always a res or thing that required definition. The nomina or
words or concepts did not call for definition. The functions of words in a language
are to aid communication between human beings. So to describe and classify
things are essential for the acquisition and communication of knowledge. On the
other hand definition of terms usable is needed for the communication itself. The
two tasks must, therefore, the distinguished to be able to understand the essence of
definition.

In real definition as espoused by the Greek Philosophers it was assumed that when
one is asked for definition, what is supposed to be defined is a res (a thing) and not
a word. And yet according to (Prof. H.L.A. Hart., Concept of law, p.13) definition
is most often seen as a matter of drawing lines or distinguishing between one kind
of thing and another when language marks them off by using words to refer to
them or so that language may be so in the future. Essentially the very word
“definition” implies that the process is one of drawing lines or distinguishing. So
for a number of reasons, clarity demands distinction between the definition of
words on one side and the description or classification of things on the other. We
must, however, make a clear distinction between what may be called lexical
definition (ie. importing the meaning of words as actually used) and stipulative
definition (ie. explicit and self-conscious setting up of the meaning-relation
between some words and some objects; the act of assigning object to a name or a
name to an object, not the act of according the already existing assignment). Both
of these kinds of definition are constantly perused in ordinary work of the law.
Confusions, however, results if the differences between them are not kept in mind
when dealing with the concept. So we should treat both kinds of definitions as
nominal or word-thing definition. This implies assigning of a meaning to a word.
In many instances, the most common method is to assign the meaning by
describing or identifying the thing by one means or another.

Within a particular legal system, if we are asked: “is this particular rule law?”, it
may be possible to answer the question by reference to rules for identifying laws in

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that system. The question will be answered by reference to the rules of that system,
and by putting the word ‘law’ in a sentence which can be tested as to its validity or
invalidity as a conclusion of law. For example, it is the law that you must drive on
the left-hand side of the roadway. This is a valid proposition of law because that
rule is established under legislation made by Parliament and all rules established
by Parliament are recognized as law. Thus the system may, and most systems do,
include within itself rules which enable other rules to be recognized as legal or not.

3. What then is “law”?

When someone asks what is law, as a general question, he/she is asking something
different. He/she may be familiar with the use of the word in ordinary language
and he/she may be clear that there is in existence something called law; but
he/she may be puzzled to know how to distinguish a system called a legal system
from one not so called, or to distinguish a rule called law from a rule not so called.
Or again he/she may really be asking a question about the nature of law so that he
may understand it better, or about the purpose of law, or the history of law, or the
source of law, or the content or form of law. A dispute over the answers to be
given to such questions may spring from differing views of legal philosophy. The
question that arises is: is law the whim of a despot or the protection of the liberty
of the subject? This may be an argument over words, but it is a most important
one. Many of the disputes in the past carried on as disputes over definition were
really disputes over such questions of purpose or functions or value.

If we pursue the task of defining law by the process of ‘real definition’ we find the
method leads us into difficulties. There is of course well-understood general
category of which law is a member. The attempts to find some common
characteristics or an essence, enjoyed by all the instances of what in ordinary uses
of the word which are accepted as laws, have all broken down at one point or
another. Austin took the word ‘law’ and distinguished it, as applied to rules in
systems which he recognized as legal, from its use in other contexts-as in Divine
Law, laws of physics or chemistry. He fixed on the command of the sovereign as
its distinguishing characteristic. But even to do this, of course, he had to recognize
a legal system.

The problem of defining the term ‘law’ may be approached from the point of
view of the theologian, the historian, the sociologist, the philosopher, the political

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scientists, or the lawyer. Most lawyers will approach the problem from inside a
particular legal system. It is not surprising, therefore, that for the lawyers’
purposes, the investigation may stop at the point where that legal system provides
authoritative tests for recognizing law from not-law. Those tests will be applied by
some agencies of that legal system and hence we find lawyers defining law as “the
rules recognized and acted by Courts of justice. For lawyers working within a legal
system such an answer may be sufficient for their purposes. But it does not assist
those puzzled from a view outside a legal system as to the nature of law or the
nature of legal systems. Hart says that for such people there have been three
recurrent issues: ‘how does law differ from and how is it related to orders
backed by threats? How does legal obligation differ from and how is it related
to, moral obligation? What are rules and to what extent is law and an affair of
rules?”

In order to understand the nature of law reference must be made to 2 main theories
of law:
1. Natural law theory
2. Positivist theory

According to natural law theory;

A law that is unfair or immoral, is no law at all (lex iniuster non est lex).

Positivist theory: law is law regardless of whether it is just or unjust. Law is what
it is not what it ought to be. There is no such thing as unjust law, a bad law, an
immoral law. What law is one thing and its goodness or badness is another. It
would appear the positivist theory of law is the prevailing doctrine in the definition
of law. it is applied by almost every legal system in ascertaining what the law is in
any given situation.

For a rule to be called law it has to be recognized and enforceable by the state, and
therefore to be called law it must emanate from a recognizable source. So under
S.14(2) Judicature Act Cap. 13 Sources of law are;
a) Written law (legislation)
b) Common law
c) Doctrines of equity
d) Established customs or customary law

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Issues this study is intended to address are, among othersMuch may be learnt about
law by describing it in terms of its basis in nature, reason, religion or ethics; by
reference to its source in custom, precedent, or legislation; by its effects on the life
of society; by the method of its formal expression or authoritative application; or
by the ends that it seeks to achieve. But no definition in terms of any one of these
provides an exhaustive means by which an inquirer could distinguish legal systems
from other systems in all cases or legal rules from other rules in all cases. Some
eminent jurists have carried out analyses which reveal the difficulties facing those
who like their terms to be simple and clear cut. Many attempts have been made to
examine the problems relating to the definition of law and futile to attempt to be
exhaustive except to go by an analysis of a few typical definitions by the two
Schools of thought which is a useful approach to the problem.

a) NATURAL LAW

According to the Natural Law School of Thought there are rational objective limits
to the power of the rulers that make law. True law comes through human reason
and it is from the laws of nature that human created laws gain force of application.
The concept of natural law predate Christianity. Thus in the Greek-Roman law it
was invoked whenever there was conflict between the law given by rulers or
judges and what conscience dictated.

In Christendom natural law become rationalized and became invoked for more
radical purposes. Then Medieval Legal Scholars invoked natural law to influence
and curtail the absolutism of secular rulers and failure to conform to natural law
could even lead to disobedience and revolution of the ruled. With the rise of nation
state, natural law transformed into rights of the individual citizen. According to the
natural law theory, there are God made laws to which man made laws should
respond or conform.

The most ancient and written traces of natural law date back to the Greek
Philosophers. The first one to expound it was the orator and father of lawyers,
Cicero who in his book, Republica, asserted that true law is right reason in
agreement with nature and it was of universal application, unchanging and
everlasting; and that it was a sin to try to change it or repeal or abolish it.

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Natural law theory has been used and transformed over time through the Greeco-
Roman era, the medieval era, the renaissance period, the 18 th – 19th Centuary period
and even to date.

Aristotle is often taken to be the father of natural law. Following his forefathers,
Socrates and Plato, he posited the existence of natural justice or natural rights.

Then came Thomas Acquinas (1229-1274), a theologian and philosopher in the

scholastic tradition known as Doctor Angelicus, Doctor Universalis distinguished
four kinds of law, namely;
(a)The eternal (b) the natural (c) the human and (d) the devine law. Eternal was the
God’s decree which governs all creation; natural law is the human participation in
the eternal law and discerned by human reason. Human law is positive law, i.e. the
man-made law applied by governments on their subjects in their societies.

According to natural law theory an unjust law is no law at all (lex iniusta non est
lex).

b) POSITIVIST THEORY OF LAW

The positivist theory of law maintains that law is law regardless of its moral
content and regardless of whether it is just or unjust. This theory distinguishes law
as it is from law at it ought to be. To the positivists, there is no such thing as unjust
law, bad law, immoral law, et cetera. This theory is the prevailing doctrine that
defines contemporary applicable law in almost all societies in the world. It is the
actual definition of “law”. If a law is enforceable by the state, it is the true law
regardless of whether it is blatantly unjust, fair or unfair, moral or immoral.

Hans Kelsen, an Austrian jurist (1861 – 1973), was a positivist who sought to
provide an analysis of the law in its structural and typical form excluding elements
foreign to it, e.g. justice and sociology, came up with “pure theory of law” which
entails the concept that an acceptable theory of law should be pure, i.e. logically
sel-supporting and not dependent upon any extra-legal values and other beliefs e.g.
morals. He urged that the existence of law suggests its validity. Kelsen established
a hierarchy with a basic norm (grund norm) from which other norms are derived.
The grund norm (supreme law) forms the basis for validity of all other norms and
its own validity is presupposed. The grund norm gives the legal system coherence

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and systematic form. It is also extra legal and is selected on the basis of efficacy
which need not be the same in every legal order. It is of some kind which will
always be there whether in the form of a written constitution or the will of a
dictator. Its not the constitution but rather the reposition or presumption that the
constitution or constitutional order ought to be obeyed.

Kelsen argued that once the grund norm ceases to derive or command a minimum
of support; for instance, if it is overthrown, it ceases to be effective as a basis of the
legal order and any other preposition which gains support will replace it. He
equates such change to “revolution in law”.

The doctrine of “revolution in law” has been used to legitimize violent and
unconstitutional regime changes in a number of countries which was first applied
in the Pakistan case or State v Dosso Anor PLD (1958 S.C. 533) to legitimize a
change of government there. The constitution had been annulled and the issue was
whether the new regime was valid. Court observed that in determining the validity
of laws one of the basic positivist doctrines is that one that requires the jurist to
presuppose the validity of the constitution whether given g an un usurper, external
invader, national hero or popular assembly of persons; in other words:

 That the laws made/legal order under a constitution continues as valid until
it is replaced, altered or amended in accordance with the constitution.

 That it sometimes happens that a constitution and the legal order under it, it
is disrupted by an abrupt change not in the contemplation of the
constitution.

 The effect of such change is not only the destruction of the existing
constitution but also the validly of the legal order under it. Such change is
called a revolution in law.

 That the method by which the revolution is brought about is wholly

immaterial, it may be violent or peaceful. Equally immaterial is the motive
of the revolution.

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  A change is in law a revolution if it annuals a constitution and such
annulment is effective. Where attempt to change the constitution fails,
those sponsor it can be charged under the existing constitution for treason.

The doctrine was also applied in the Uganda case of Uganda vs. Commissioner of
Prisons Ex Parte Matovu (1966) E.A. 514; this was a writ for habeas corpus, the
Applicant had been arrested under the Deportation Act on May 22nd 1966. He was
released and detained again on July 16 1966 under an Emergency Legislation
which came into force after his first arrest. On August 11th 1996, the Applicant was
served with a Detention Order pursuant to Article 31(1) a of the Constitution of
Uganda.

Between February 22nd and April 1966 events took place that led to the abolition of
the 1962 Constitution and the adoption of the 1966 one. Prior to this change the
Prime Minister had deprived the President and the Vice-President of their offices
contrary to the 1962 Constitution. The issue was whether the applicant was
lawfully detained under the 1962 Constitution.

Court relied on Kelsen’s theory to hold that the series of events that took place in
Uganda from February 22nd to April 1966 were law-creating facts described in
law as a Revolution, i.e that there was an abrupt political change not
contemplated by the existing Constitution that destroyed the entire legal order.
The then Prime Minister of Uganda, Milton Obote, had assumed all executive
powers as President, by abrogating the 1962 Constitution and replacing it with
another one.

Court held that although the 1996 Constitution had extra legal origins, it was a
legally valid constitution, the 1962 Constitution having been abolished as a result
of a victories revolution in law. It therefore did not exist anymore nor did it form
part of the laws of Uganda it having been deprived of its de facto and de jure
validly.

In the case of Madzimbabuto vs. Lardner-Burke (1969) A.C. 645, Lord Reid
pointed out that there are situations where the law must take into account the fact
that there are now regimes, which are universally recognized as lawful, but which
derive their origins from revolutions or coup d’etats. The question is how or at
what stage the new regime became lawful.

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The theory has been criticized for not explaining what amounts to effectiveness.
While Kelsen states that effectiveness of the grund norm is based on recognition by
a number of persons willing to obey the law and that if the grund norm ceases to
have the support of the people, it loses its effectiveness, he does not give any
guidelines on the criteria by which minimum effectiveness may be measured. The
concept of an effective legal order is therefore vague. It has also been criticized as
being too readily rewarding to political power usurpers.