Jurisprudence Notes 2016/2017

NURLAILA GHANI (LEB140108)
JURISPRUDENCE 2016/2017
JURISPRUDENCE
CHAPTER 1: NATURAL LAW
1.0 INTRODUCTION TO NATURAL LAW
- D‘Entreves: ―many of the ambiguities of the concept of natural law must be ascribed to the
ambiguity of the concept of the nature that underlies it.‖
- Natural law is founded on nature and in accordance with nature.
- J.S Mill: Nature is given several meaning by thinkers.
1) What exists is nature. All that man observes in this universe can be called as nature.
2) How man ought to behave. Man tries to conform behaviour as to what he ought to do with
what he observes in nature.
- Natural law plays an important role in the interpretation of laws:
a) Corbett v Corbett [1971] L.R. 83 – Marriage between two persons. The ‗wife‘ was a male
at birth but underwent sex operation and married the petitioner who knew about the
operation. The petitioner sought for an annulment to the marriage. The judge based his
judgment on the biological aspect of the marriage which was regarded as the very
foundation of marriage and since it was lacking in this case, the court ordered the
marriage to be null and void since it could not involve the natural biologically-determined
consequences of marriage.
b) In re B (A Minor) [1981] 1 W.L.R 1421 – Child born with Down‘s syndrome and blocked
intestines. She had a life expectancy of a few days without operation and even if it was
conducted, she could only live for 20/30 years and handicapped. The parents didn‘t want
any operation while the local authorities wanted to save the child. The doctor who was
supposed to perform the surgery respected the wishes of the parents and refused.
Counsel for the parents argued that where nature had made its own arrangements to
terminate a life which would not be fruitful, it (nature) should not be interfered with. ―God
or nature has given the child a way out.‖ Argument was rejected (but it was still powerful)
and COA accepted the local authority‘s appeal.
c) Sophocles’ Antigone – Antigone‘s brother was a rebel and the ruler of the city
(Antigone‘s uncle) had passed an order denying a decent burial for her brother.
Nevertheless, she gave him a decent burial. When charged with violating the law, her
reply was that over and above the written laws there were some which were unwritten;
they were eternal and no one know when they were enacted. ―None of today or yesterday
it is, but live eternal. None can date its birth.‖
- Characteristics of natural law:
a) Universal – it belongs to all mankind
b) Immortal
c) Unwritten – ―Natural law is found and not made.‖ It exists naturally.
d) Moral values – contains morality and justice and this differentiates ―law as it is‖ and ―law
as it ought to be.‖
1.1 CLASSICAL GREECE AND ROME THEORY
1.1.1 SOCRATES
- Man possesses insight and this insight reveals to him the goodness and badness of things
and makes him know the absolute and eternal law.
- Positive law is to be observed at all circumstances.
- He was prosecuted for subverting the youth of his time and upon conviction, was forced to
drink a cup of hemlock. A few days before the days of his death, his disciples anaged to
approach him and tried to persuade him to run away but he refused on the ground that he
would not disobey the law of the land.
1.1.2 PLATO
- Student of Socrates.
- Doctrine of ‘forms’ – ‗forms‘ are transcendental archetypes that exist independently of the
physical world, independently of the human mind, independently of the space or time.
I.e. ‗form‘ of beauty of which things on earth which have the quality of beauty are mere
manifestations. Qualities such as justice and truth.
- All men can do is to attempt to reproduce them and to do this, men must see knowledge of
the eternal truths, a quest that is man‘s finest endeavour.
- This school of thought refers to idealism, referring to the notion that the idea of a thing has its
own existence.
- Plato is an ‗idealist‘ who thought that the real world should be moulded to conform to a better
‗ideal‘ reality which is open to the understanding of human reason.
- He did not speculate the source of this higher ideal, nor did he consider it to be open to the
understanding of people generally. He considered that it could be understood only by persons
of suitably trained ability.
- In the Republic, he set out a model for the perfect society, the ‗ideal government concept‘
which he founded upon a form of ‗benevolent dictatorship‘ through the government of a
‗philosopher king‘(who has souls of Gold – will be explained below) who was said to be able
to perceive and comprehend the ideal reality in order to relate it to the actual State and is able
to achieve the ultimate justice through his wisdom given by God.
- He believes justice exists in a community where one person performs his tasks as according
to the capability one was given by God himself. He did not conform to the idea of equality
between mankind because inequality exists based upon man‘s capability.
- The aristocratic state that Plato idealizes is composed of three caste-like parts:
a) the ruling class - philosophers-kings (who are otherwise identified as having souls of gold)
b) the auxiliaries of the ruling caste - soldiers (whose souls are made up of silver), and
whose job in the state is to force on the majority the order established by the
philosophers; and
c) the majority of the people (souls of either bronze or iron), who in contrast to the first two
classes are allowed to own property and produce goods for themselves, but are also
obliged to sustain with their own activities their rulers' — who are forbidden from owning
property in order to preclude that the policies they undertake be tainted by personal
interests.
- Philosopher king – ―Wisdom lover,‖ the only person who has access to ideas. The rules that
Plato fashions as the Ship of State metaphor: a ―true pilot must of necessity pay attention to
the seasons, the heavens, the stars, the winds, and everything proper to the craft if he is
really to rule a ship‖ (Republic)
- Allegory of the cave – Imagine a group of people who have lived chained to the wall of a
cave all of their lives, facing a blank wall. The people watch shadow projected on the wall
from objects passing in front of a fire behind them, and gives names to the shadows. The
shadows are the prisoner‘s reality for they have never seen anything else; and do not realize
that what they see are shadows of objects in front of fire. The philosopher is like a prisoner
who is freed from the cave and comes to understand that the shadows on the wall are not
reality at all, for he can perceive the true form of reality rather than the manufactured reality
that is the shadows seen by the prisoners. The freed prisoner would think that the world
outside the cave was superior to the world he experienced in the cave; ―he would bless
himself for the change, and pity the other prisoners‖ and would want to bring his fellow cave
dwellers into the sunlight. However, he would be blind when he returns to the cave. Thus, the
prisoners (according to Plato) would infer from the returning man‘s blindness that the journey
out of the cave had harmed him and that they could not undertake a similar journey. Socrates
concluded that the prisoners, if they were able, would therefore reach out and kill anyone who
attempted to drag them out of the cave.
- Plato – those who are ignorant is equivalent to those who stayed in the cave. Only a wise
man can differentiate between a shadow and reality.
1.1.3 ARISTOTLE
- Student of Plato but did not follow Plato‘s theory of forms.

- Man is a part of nature in two ways:
i) He is part of the creatures of God;
ii) He possesses active reason.
- Nicomachean Ethics: ―Man when perfected us the best of animals, but if he be isolated from
law and justice, is the worst of all‖
- He believes that nature has the same force everywhere and does not exist by people‘s
contemplation. He divides law into two:
a) Conventional – Laws which are man-made (positive law) and used by certain group of
people. The content may be different from one place to another. Positive law ought to try
to incorporate the rules of natural law. Positive law should be obeyed even if contrary to
natural law.
b) Universal – Laws which are unwritten. Comprises of methods which are accepted by
mankind and which conforms to natural law. This method is acceptable everywhere.
- Aristotle was more concerned with the world he saw it existing around him. He was a marine
zoologist with an acute observation of the minute details of organisms observable by the
human eye.
- From his studies, he became conscious of the fact that natural phenomena were in a state of
perpetual change – e.g. an acorn becomes an oak tree. Oak tree – acorn‘s predetermined
end. The fulfilment of the progression that the acorn had started. There was always progress.
- For him, the universe is dynamic, always engaged in the process of becoming, of moving
towards an end immanent within itself from the start.
- Everything in life has a telos (purpose), revealed in its design and that its supreme ‗good‘ is to
be sought in fulfilling that purpose.
- ‗Every craft and every investigation, and likewise every action and decision, seems to aim at
some good; hence the good has been well described as that at which everything aims.‘
- Philosophy that everything that exists has a predetermined end is termed teleology (Greek
teleos, end, and logos, rule of principle). Teleological – moves towards a specific end, which
leads to happiness.
- Men‘s predetermined end: happiness.
- What is happiness – to live a life of virtue.
- Thought that human beings have an inherent potential for good, the achievement of which it is
the proper function of the State to facilitate.
- He believed that the highest form of human society lay in the Greek city state (a polis).
- Polis – provides society which man could achieve its culminating fulfilment.
- From the start of organised human society, from its most primitive forms, through the various
stages of agricultural existence to the building of cities, and the creating of political societies
such as that at Athens, mankind was progressing towards that which had been its end from
the beginning.
- Aristotelian teleology teaches that all things have a potential for development specific to their
nature, the achievement of which is its particular ‗good‘. Acorn example: good of an acorn is
to develop into an oak tree. Anything that assists this is good and if otherwise, it is bad.
- What is good and bad is a bit complex to humans. We are political animals.
- A ‗good‘ law is one that enables its subjects, as social creatures, to achieve their maximum
potential appropriate development.
- Nichomachean Ethics: conceded to the existence of a morality higher than that embodied in
‗good‘ laws. Expressed as a distinction between universal justice and that embodied in
particular provisions. Aristotle indicates that this is not a different order of justice but an
equitable standard which the law itself should reflect but which may also be used to correct
difficulties which may arise from the unfairness of particular applications of rules which are
‗good‘ as general provisions.
- Aristotle accepted that there is natural and universal right and wrong, apart from any human
ordinance or convention. But he does not dwell on the matter.
- Question of obligation and the associated problem of the ‗bad‘ law is little considered by
Aristotle, which is not, perhaps, surprising in a work primarily concerned with the identification
of the ‗proper‘ uses of law and legislative power.
- Two sorts of political justice:
a) Natural – has the same validity everywhere and does not depend upon acceptance
b) Legal – which in the first place can take one form or another indifferently, but which, once
laid down, is decisive.
- All regulations are of this kind on the ground that whereas natural laws are immutable and
have the same validity everywhere (as fire burns both here and in Persia, they can see the
notions of justice are variable.
- While there is natural law, remember that everything is subject to change; but still some
things are so by nature and some are not, and it is easy to see what sort of thing, among
those that admit of being otherwise, is so by nature and what is not, but is legal and
conventional.
1.1.4 STOICS
- Founded by Zeno (during the third century before Christ) down to about the 4th century AD).
It was the prevailing philosophy during the greater part of Roman Republic and Empire.
- Built a philosophical system based in nature.
- Nature – main principle which governs mankind. Mankind is part of nature.
- Until the Stoics, ―nature‖ had meant ―the order of things‖; with them it came to be identified
with man‘s reason.
- Stoics taught that there is a rationally observable higher order, a cosmic reason, which may
be appreciated by all people, not just a privileged ‗civilised‘ few, and that ‗good‘ local laws
made by any particular State should conform to this wisdom in order to guarantee, or
establish, the natural and rational order of human social life.
- It was orientated to produce self-sufficiency and individual well-being. Stoics sought
happiness through the wisdom to ascertain what can be controlled by human power, and
accept with dignity what lay beyond human control.
- Stoicism is an approach of life; controlling the emotions and accepting both life‘s forces and
fate in an otherwise chaotic and unpredictable cosmos.
- Beneath the chaotic appearance of life, Stoics argued that the cosmos was an orderly
arrangement where man and the cosmos behaved according to distinct principles of purpose.
Reason and law operated through nature.
NATURAL LAW
- On natural law, they observed that the entire universe was governed by ―reason‖ and man‘s
reason was a part of the universal reason. When man lived according to reason, he lived
naturally (Zeno). Positive law must conform to natural law.
- They further argued that all humans have reason within them and can therefore know and
obey its law. Because human beings have the faculty of choice (free will), they will not
necessarily obey the law. If they act in accordance with reason, however, they will be
‗following nature‘.
- Precepts of reason had universal force.
THE IDEA OF MANKIND AS PLAYERS IN A COSMIC DRAMA
- The reason that exists in all entities of the cosmos lies in man; man has the ‗spark of the
divine within him.‘
- The soul of man is both corporal (centred on the heart and spread throughout the body via the
flow of blood), and reasonable (providing the uniqueness of man).
- Through their rational nature humans participate in the rational structure which underlies the
cast forces of the cosmos.
- By the proper use of his resin, man understands the actual order of things and his place in
that order; he comes to realise that everything obeys the law of existence. Man must,
therefore, relate his behaviour to the order of ‗natural‘ law.
- Epicetus – we are actors in a vast cosmic drama.
- We cannot choose our own roles, but must act under the direction of the director/producer of
the drama. A plot and various roles have been laid out by the writer and director; the producer
has chosen different people to play various roles. The plot of this drama is provided by the
intelligence or reason which pervades all entities and the setting is the cosmos. We gain
wisdom in recognising the role we are called upon to play, and performing that part the best of
our ability, While some of us have small roles, others have large ones, but all of us play a
part. We cannot control things which have no relationship to our role, nor can we change the
role of another. We should develop positive apathy, or sense of detachment, in relation to
those things which we cannot affect, and concentrate upon our own performance and the
things we can do or influence.
- We can be somewhat optimistic; after all, we can control our attitudes and enquire into the
nature of the cosmos, but we cannot influence its outcome.
ROMAN THOUGHT
- Stoicism passed over to and influenced Roman thought.

- Cicero was to combine the stoic idea of a universal law of nature directing the course of
human conduct with the psychological attitude of the Sceptics.
- He believed the highest human achievement lay in an effective use of knowledge to guide
human affairs.
- His definition of natural (true) law is ―right reason in agreement with nature‖.
- Cicero‘s stoic conception of an underlying law of nature:
“True law is right reason in agreement with nature, diffused among all men; constant and
unchanging, it should call men to their duties by its precepts, and deter them from wrongdoing
by its prohibitions; and it never commands or forbids upright men in vain, while its rules and
restraints are lost upon the wicked. To curtail this law is unholy, to amend it is illicit, to repeal
it impossible; nor can we dispensed from it by the order either of senate or of popular
assembly; nor need we look for anyone to clarify or interpret it; nor will it be one law at Rome
and a different one at Athens, nor otherwise tomorrow than it is today; but one and the same
law, eternal and unchangeable, will bind all peoples and all ages; and God, is designer,
expounder and enactor, will be as it were the sole and universal ruler and governor of all
things, and whoever disobeys it, because by this act he will have turned his back on himself
and on man‟s very nature, will pay the heaviest penalty, even if he avoids the other
punishments which are adjudged fit for his conduct” – De republica
All men are equal in the face of this eternal law, not in the outward artefacts of our property or
social position, but in possession of reason.
- „We are born for justice, and it is only bad habits and false benefits which prevent us from
understanding underlying human equality and similarity‟
- Cicero presents Roman law as a near perfect realisation of Stoic theory, Nature is the source
of precepts which any individual can access through use of his reason. The most learned men
agree:
“Law is the highest reason, implanted in nature, which commands what ought to be done and
forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is
law. They believed that law is understanding; whose natural function it is to command right
conduct and forbid wrongdoing… The origin of justice is to be found in law, for law is a natural
force; it is the mind and reason of the intelligent man, the standard by which justice and
injustice are measured… In determining what justice is, we may begin with that supreme law
which had its origin ages before any written law existed or any state had been established”
- There is a law of nature independent of whether man-made (or positive) law exists or not.
Thus even if there had been no written law, there would still be a violation of ‗eternal law‘.
- “For reason did exist, derived from the nature of the universe, urging men to right conduct and
diverting them from wrongdoing, and this reason did not first become law when it was written
down, but when it first came into existence; and it came into existence simultaneously with the
divine mind. Wherefore the true and primal law, designed for command and prohibition, is the
right reason of the high God”
- The most foolish notion is to believe that everything found in the customs or law in nations are
just. Would that be true, even if the laws had been enacted by tyrants? For justice is one; it
binds all human society, and is based on one law, which is right reason applied to command
and prohibition.
- It is agreed that laws were invented for the safety of citizens, the preservation of states, and
the tranquillity and happiness of human life, and that those who first put statutes of this kind of
force convinced their people that it was their intention to write down and put into effect such
rules as, once accepted and adopted, would make possible for them an honourable and
happy life; and when such rules were drawn up and put in force, it is clear that men called
them ‗laws‘. From this point of view it can be readily understood that those who formulated
wicked and unjust statutes for nations, thereby breaking their promises and agreements, put
into effect anything but laws‘.
- He saw law as a rational ordinance governing human conduct which at the level of positive
enactment, termed the lex vulgus, was essentially an exercise of political power which might
or might not be appropriate in terms of the advancement of its proper purposes.
- Understanding of such ‗proper purposes‘ was to be derived from insight into a higher
rationality insofar as it relates to the human condition.
- For Cicero, such cosmic reason, the lex calaestis, was a divine law but one accessible in its
relevant parts to the human mind, through rational insight and enquiry.
- Such perceptions were then considered ‗natural law‘, the lex naturae, and it is this which
Cicero advances as the proper model for the making of laws.
- Cicero was the first natural lawyer to contend for the striking down of positive laws which
contravened natural law.
- „There is indeed a true law (lex), right reason, agreeing with nature and diffused among all,
unchanging, everlasting, which calls to duty by commanding, deters from wrong by
forbidding.... It is not allowable to alter this law nor to deviate from it. Nor can it be abrogated.‟
- “A legislature which said that theft or forgery of wills or adultery was lawful would no more be
making law than what a band of robbers might pass in their assembly.”
- It is not clear whether the standards were natural because they derived from human nature,
because our natural human reason could lead us to them, or because they were to be found
in the physical world about us (or a combination of the three) – a recurrent ambiguity.
- But the more pragmatic mind of the Roman jurist was little interested in ―higher law‖ and
regarded it as more suitable for oratorical rhetoric.
- Marcus Aurelius – Meditations – ―If the power of thought is universal among mankind, so
likewise is the possession of reason, making us rational creatures. It follows, therefore, that
this reason speaks no less universally to us all with its ―thou shalt‖ or ―thou shalt not‖. So then
there is a world-law; which in turn means that we are all fellow-citizens and share a common
citizenship, and that the world is a single city.‖
- The purpose behind the creation of a thing determines its development which points to its
final state. The final state gives the clue to its chief advantage and good; therefore the chief
good of a rational being is fellowship with his neighbours – for it has been made clear long
ago that fellowship is the purpose behind our creation.
- Injustice is a sin. Nature has constituted rational beings for their own mutual benefit, each to
help his fellows according to their worth, and in no wise to do them hurt.
- In Rome, there were three types of laws which developed historically:
i) jus civile – This was the body of the laws which were applicable to the citizens of
Rome only
ii) jus gentium – this was the body of laws which were applicable to foreign citizens
iii) jus natural – with the passage of time, from the development of jus gentium, common
type of rules were deduced which were applicable to all foreigners as well as
nationals. These were rules of general application and based on historical and
practical experience. It consisted of maritime and commercial usages.
1.1.5 ST. THOMAS AQUINAS
- A Catholic priest. During the Dark Ages, there was the need of stability. This is during the
Christian uprising in Europe.
- His basic theory of natural law is man‘s characteristics and man‘s relationship with God.
- Summa Theologica – St. Aquinas defines law as ―it is nothing than an ordinance of reason for
the common good made by Him who has the care of the community and promulgated.
- He begins with the hypothesis that there is a relation between means and ends, between an
operation and its result.
- Man thinks for himself and chooses for himself. As wheat develops into wheat, there is a
natural tendency to develop into certain ways.
- Man is naturally orientated to certain ends; happiness lies in attaining man‘s end or purpose.
Conversely, to sin is to fail to act perfectly. The power to sin is the ability to fail to act in
according to the ends we ought by our nature to be achieving.
- Human nature is not self-sufficient with its own standards of fulfilment; instead mankind must
combine the ends of natural functioning with supernatural ends. Conversely, Aquinas argued
that the body could not be rejected. It instigates certain kinds of acts, appetites and passions.
- The senses enable a level of knowledge about sensible objects, and man is attracted to some
objects perceived as pleasurable and good (concupiscent appetite), and repelled by others
perceived as harmful, painful or bad (irascible appetite). This attraction and rejection are the
basic rudiments of man‘s capacity for love and pleasure, hate and fear.
- While animals are controlled by irascible and concupiscent appetites, man is not dependent
on them and becomes a free subject through the power of will and reason. The intellect can
rank the goods of existence.
- Riches, pleasure, power and knowledge are all goods – legitimate objects of the appetites –
but they cannot produce man‘s deepest happiness. They do not possess the character of the
universal good that man‘s soul seeks. Aquinas believes this is not found in created things but
in God; the supreme good.
- Man is a mixture of sensuality, appetites, will and reason which enables him to exercise moral
choice in constructing his life-course. Man creates his life out of free acts.
- If physical determinism rules over man, no freedom of action, and thus no morality, is
possible. Freedom is an absolute prerequisite for any act to be considered moral; Aquinas
states that an act is only human if it is free. Freedom entails knowledge of alternatives and the
power to choose between them.
- Virtue/goodness consists in making the right choices, the mean between extremes. There are
certain natural virtues – courage, temperance, justice and prudence – which are
complemented by man‘s knowledge of natural law or moral law.
- Basis of moral obligation is to be found, first of all, in the fundamental nature of man. Built into
man‘s nature are various imperatives such as the need to preserve his life and propagate his
species, also, because he is rational, an imperative directed toward the search for truth.
- The elemental moral truth is simply to ‗do good and avoid evil‘.
- Certain things appear reasonable –
i) man is under a natural obligation to protect his life and health, hence suicide and
carelessness are wrong;
ii) the natural need to propagate the species provides the fundamental necessity for the
union of man and woman (husband and wife);
iii) because man seeks for truth, he can best achieve this by living in social harmony with
his fellow men who are also engaged in this quest. To ensure an ordered and
harmonious society, human laws are fashioned to direct the continuity‘s behaviour‖
- These factors – preservation of life, propagation of species, formation of an ordered society
under human laws, and pursuit of truth, all pertain to man‘s natural state.
- Moral law is founded upon reason‘s ability to discern the right course of conduct in the light of
human nature; that is, after considering humanities‘ natural inclinations toward specific modes
of behaviour.
- Man has basic impulses towards self-preservation, to procreate, to improve and take
decisions to bring better changes. These impulses are means to achieve not only survival and
continuity but also perfection,
- Since humans have certain fixed qualities, rules for behaviour that correspond to these
qualities are called natural law.
- Justice is the constant and lasting will to give each one his due. One‘s due is that to which
one is ordered, according to one‘s natural tendencies, towards the perfection of one‘s end.
One‘s due is not conferred by positive law but by natural tendencies of human nature.
- It follows, thereby, that if positive law violates what is naturally due to man, then such a
(positive legal) order can be called unjust on the basis of natural law.
- Much of the impetus for his theory of natural law was already developed by Aristotle. In
Nicomachean Ethics, Aristotle distinguished between natural justice and conventional justice.
The first he saw as immutable, and the second mutable or changeable. Some forms of
behaviour, he said, are wrong only because, and only after, a law has been made to regulate
such behaviour. (E.g. it is wrong to drive a vehicle at certain speeds because a speed limit
has been set, but in nature there‘s nothing like that. Such a law is therefore not natural but
conventional, because before the law was passed, nothing is wrong with driving beyond the
speed limit). On the other hand, Aquinas would argue, there are some laws the precepts of
which are derived from nature, so the behaviour they regulate has always been wrong (such
as murder).
- But Aquinas did not limit his treatment of natural law to the simple notion that in some way
man‘s reason is able to discover the natural basis for human conduct. Instead, he reasoned, if
man‘s existence and nature can be fully understood only when seen in relation to God, then
natural law must be described in metaphysical and theological terms; as the Stoics and St.
Augustine had understood.
- Law has to do primarily with obligations ultimately imposed by reason.
- ―It belongs to law to command and forbid… Law is a rule and measure of acts, whereby man
is induced to act or is restrained from acting; for lex [law] is desired from ligare [to bind],
because it binds one to act. Now the rule and measure of human acts is the reason… for it
belongs to the reason to direct a man‟s whole activity toward his end‟
- Law thus consists of a means of achieving an end:
a) The relation between an end and the method is first conceived by the legislature but can
also be known by others by exercising their reasoning faculties
b) Laws should be made known to others so that they follow them
- Law involves power and it imposes obligations but behind this exercise of power in law lies
reason.
- It‘s not simply that whatever pleases the sovereign has the force of law since law should
move those who are subject to it to act rightly. The sovereign may command through the
positive law things which are not reasonable, may command man to act in ways which are not
right, but this is not law operating in accordance with nature.
- Natural law is dictated by reason and since God created all things, human nature and natural
law are best understood as the product of God‘s wisdom or reason. Then the simple definition
of law is nothing else than an ordinance of reason for the common good, promulgated by him
who has the care of the community.‖
- „A law is in a person not only as in one that rules, but also, by prescription, as in one that is
ruled‟
- Aquinas distinguished four kinds of law
1) ETERNAL LAW
- ―...Law is nothing else but a dictate of practical reason emanating from the ruler who governs
a perfect community … granted that the whole community of the universe is governed by
Divine Reason. Therefore the very idea of the government of things in God the ruler of the
universe has the nature of a law. And since the divine reason‟s conception of things is not
subject to time but is eternal… therefore it is that this kind of law must be called eternal”
- In God‘s intellect there exists a plan expressing the order of all things to their ends; this plan
we can refer to as eternal law. All creatures bear the imprint of this eternal law, and for man
this imprint has a special bearing due to his rationality.
2) NATURAL LAW
- Consists of that portion of eternal law that pertains particularly to man. While man cannot
know the entirety of God‘s plan, man‘s rationality ensures he has a share of eternal reason,
whereby he can recognise a (normative) natural inclination to proper acts and ends.
- “Natural law is nothing else than he rational creature‟s participation of the eternal law”
- Basic precepts of natural law are the preservation of life, propagation, education of offspring,
the pursuit of truth and the construction of a peaceful society. This natural law consists of
broad general principles reflecting God‘s intentions for man in creation.
3) HUMAN LAW
- Specific statutes of governments, or human laws, ought to be derived from the general
precepts of natural law.
- Law being ‗a dictate of the practical reason‘, the process of drawing conclusions for law is
much the same as for ‗speculative reason‘ (the sciences). Just as ‗we draw conclusions of the
various sciences‘ from ‗naturally known undemonstrable principles‘, so also ‗from the precepts
of the natural law… human reason needs to proceed to the more particular determination of
certain matters‘. And ‗these particular determinations, devised by human reason, are called
human laws…‘
- Man has a natural aptitude for virtue; but the perfection of virtue must be acquired by means
for some training. A law is not ‗just‘ simply from the fact that it was decreed by a sovereign.
- He argued what gives a law the character of law is its moral dimension, its conformity with the
precepts of natural law, its agreement with the moral law.
- „Every human law has just so much of the nature of law, as it is derived from the law of
nature‟, but adds, „if in any point it deflects from the law of nature, it is no longer a law but a
perversion of law‟.
- While such laws no longer bind in conscience, they are sometimes to be obeyed to prevent
an even greater evil.
- He even went even further than to deny the character of law to any command of government
that violated the natural moral law; such a command, eh stated, should not be obeyed.
- Some laws may be unjust through being opposed to the divine good: such are the laws of
tyrants inducing to idolatry, or to anything else contrary to the divine law. Laws of this kind
must ‗nowise be observed, because … we ought to obey God rather than men‟.
- Human reason is fallible and prone to mistakes; human law ‗cannot have that inerrancy that
belongs to the demonstrated conclusions of the sciences‘.
4) DIVINE LAW
- Function of law is to direct man to his proper end.
- Since man is ordained to an end of eternal happiness, in addition to his temporal happiness,
there must be a kind of law that can direct him to that supernatural end.
- He went beyond Aristotle, since he states that Aristotle knew only about man‘s reason, was
considered a sufficient guide.
- But eternal happiness, to which man is ordained, makes it ‗necessary that besides the natural
and the human law, man should be directed to his end by a law given by God‘.
- Divine law is available to man through revelation and is found in the Scriptures. It is not the
product of man‘s reason, but is given to man through God‘s grace to ensure that he should
know what he must do to fulfil both his natural and, especially, his supernatural ends.
- Difference between natural law and divine law is this: natural law represents man‘s rational
knowledge of the good, operating by the intellect directing the will to control his appetites and
passions, leading him to fulfil his natural end by achieving the cardinal virtues of justice,
temperance, courage and prudence. But divine law, on the other, comes directly from God
through revelation, a gift of God‘s grace, whereby men are directed to their supernatural ends;
having obtained the higher, or theological, virtues of faith, hope, and love, these virtues are
‗infused‘ into man by God‘s grace.
- Revelation becomes the guide for reason, and describing the manner to which man‘s highest
nature is perfected through God‘s grace,
THOMISTIC CONCEPTION OF THE STATE
- The state is a natural institution derived from the nature of man, but it also has a duty
imposed upon it to help man fulfil his supernatural end.
- Since it is not equipped to deal with this more ultimate end of man, it must acknowledge
limitations upon its functions; it is the role of the Church to direct man to his end.
- The state, in this view, is willed by God and has its God-given function to cater for the social
nature of man.
- ‗A common life could not exist, unless there were someone in control, to attend to the
common good‟
- The state‘s function is to secure the common good by keeping the peace, organising the
activities of the citizens into harmonious pursuits, providing for the resources to sustain life,
and preventing, as far as possible, obstacles to good life. This last item gives to the state not
only a function tied to man‘s ultimate end; it also accounts for the state‘s position in relation to
the Church.
- State is subordinate to the Church but the Church is not a superstate. The state and the
Church has its own sphere of legitimate functions.
- Within the sphere, the state is auhonomous but insofar as there are aspects of human life that
bear upon man‘s natural end, the state must not put forward arbitrary hindrances to frustrate
man‘s spiritual life.
- Within its own sphere, the state is what Aquinas calls a ‗perfect society‘, having its own end
and the means for achieving it, but the state is like man; neither state nor man is limited to a
natural end.
- Because man‘s destiny includes attaining the enjoyment of God, the state must recognise this
aspect of human destiny; in providing for the common good of the citizens, the sovereign
must pursue his community‘s goal with a consciousness of man‘s spiritual end.
- Thus, the sovereign should order those things which lead to heavenly beautitude and prohibit,
as far as possible, their contraries.
- In this way, Aquinas affirmed the legitimacy of the state and its autonomy in its own sphere,
subordinating it to the Church only to ensure that the ultimate spiritual end of man must be
taken into account.
- Since the state rules human behaviour, it is in turn limited by requirement of just laws. The
state is the source of human law and each government is faced with the task of creating
specific statutes to regulate the behaviour of its citizens under the particular circumstances of
its own time and place.
- Lawmaking must not be arbitrary but enacted under the influence of the natural law.
- Positive law ought to consist of particular rules derived from the general principles of natural
law. Any violations will cause the positive law to lose its character as law, is ‗a perversion of
law‘ and loses its binding force in the consciences of men.
- Lawmaker has his authority to legislate from God, the source of all authority, and to God he is
responsible.
- Purpose of political authority – to provide for the common good; authority is never to be used
as an end itself, or for selfish ends. Nor must the common good be interpreted in such a way
that the individual is lost sight of in the collective whole.
- Common good must the good of concrete persons.
- ―The proper effect of law is to lead its subjects to their proper virtue… to make those to whom
it is given good”
- Although the sovereign has authority and power, law must not reflect this power on a naked
sense but as domesticated by reason and aimed at the common good.
1.2 SOCIAL CONTRACT
1.2.1 INTRODUCTION
- Though the idea of social contract has given by Plato in his Republic, it has been used by
various philosophers to suit their aims.
- This idea is based on the premise that power sides in the people. It is not the people as a
corporate body which is mentioned but as a collection of individuals.
- Social contractarians try to highlight the individual‘s position in the society vis a vis the ruler of
government.
- There are two types of social contract:
a) pactum subjectionis
b) pactum unionis
- Basic features of social contract:
a) freedom to have relationship
b) equality between the parties to the contract
c) living in a society
1.2.2 THOMAS HOBBES (1588-1679)
- Main works – De Cive (1643) and Leviathan (1651)

- It is said that he was born when England was having a civil war and his mother is said to
have delivered a premature child in his birth.
- ―My mother did bring forth twins at once, both me, and fear´- Hobbes‘ desire to preserve his
earthly domain against the prospect of death.
- Circumstances of civil war seem to have influenced his thinking in essential aspects.
- There was a struggle going on between Long Parliament and Charles I. Hobbes being the
secretary to the King defended him.
- State of nature – utter chaos. Everyone is at war with everyone. Life in the state of nature
was described as poor, solitary, nasty, brutish and short.
- But there are certain passions which incline man to peace e.g. fear of death, desires of such
things are necessary to commodious living.
a) Man‘s fear of death
b) Man‘s need to live a wealthy life
c) Man‘s hope to gain wealth through one‘s effort.
- Therefore reason suggests that men would seek after peace.
THE SOCIAL CONTRACT
- Law and government thus become necessary as a means of promoting order and personal
security.
- For each citizen to preserve his own life, he must give absolute and unconditional obedience
to the law.
- Terms of the social contract contemplated by Hobbes supported the king or ruler of his time
or even in future. He justified authoritarian government.
- A state of nature men entered into a covenant with the ruler to keep order in the society upon
the condition that they would obey him absolutely.
- In order to maintain peace and order, man enters into a contract between them where each
individual agrees to transfer their power and rights to one person or a sovereign which is
called the Leviathan. Man introduces sovereignty because he believes that the Leviathan is
just a leader and not benevolent.
- Once a pactum subjectionis has been made, a covenant to obey in perpetuity is
irrevocable.
- It binds the people in that society. The Leviathan does not enter into that contract.
The Leviathan‟s main duty is to use the power transferred to him to preserve peace
and order. Hobbes believed that the Leviathan can only do his duty perfectly if he is
given absolute power without any restrictions.
- Leviathan will rule fairly due to the fact that he is the one who enacts the law. Hobbes
used a legal fiction which stated that there won‘t be any unjust law because it is
impossible for one person to be unfair to oneself.
- However, even though there are no unjust law, there is a possibility there are
iniquitous law which contradicts the principles of natural law. But Hobbes stated that
man still needs to obey the law. The punishment if man do not obey the law is pain of
eternal death.
- One of his principles of natural law is that men must fulfil their promises which they
make and stresses this principle to the extent of defining injustice as no other than
non-performance of the covenant.
- Hobbes also stated that man can disobey the Leviathan if the Leviathan fails to
maintain peace and order of the public. “The obligation of subjects to the sovereign is
understood to last as long as, and no longer than, the power lasteth by which he is
able to protect them
- He attaches sanctions to covenants and covenants without swords are empty words.
- His own goal was to rule out the legitimacy of civil rebellion and thus to eliminate the
possibility of civil war, which he regarded as the greatest of evils.
- His theory of political obligation is derived from a consideration of ―the end of the
institution of sovereignty, namely, the peace of the subjects within themselves, and
their defence against a common enemy.
- Natural law does not loom large in Hobbes‘ commonwealth. In Hobbes, there is a
germ of concept of natural rights, the idea that man may make certain legitimate
demands on his fellow man.
LAW OF NATURE ARE NOT BINDING
- Laws of nature are not binding upon men everywhere at all times. They are obligatory merely
in the sense that everyone should desire their observance.
- A man who performs all his promises while others do not, would make himself a prey to
others and procure his own ruin. But this would be contrary to the law of nature which
demands self-preservation.
LIBERTY AND AUTHORITY
- His main problem was to reconcile authority with liberty – he was an apologist for the
supremacy of the sovereign on the grounds of peace and security. But he insisted that
government should abstain from regulating the lives of its citizens, except in the most urgent
matters.
CIVIL DISOBEDIENCE
- He discourages civil disobedience but (in Leviathan) where resistance is successful, the
sovereign ceases to govern. The subjects are then thrown back on their original position and
may transfer their obedience to a new ruler.
- Obligation of subjects to the sovereign is understood to last as long, and no longer, than the
power by which he is able to protect them.
SOVEREIGN AND THE CHURCH
- The Church has no power over the sovereign.
1.2.3 JOHN LOCKE (1632 – 1704)
- His state of nature was a golden age, Eden before the Fall. It was a state of peace, goodwill,
mutual assistance and preservation.
- Man has natural rights to anything with which he mixes his personality, his labour. By his
labour, a man projects his personality into the object of his work. This right of property exists
prior to and independent of any social contract.
- One thing that was lacking; property is insecure. According to Locke, it was to remedy this
that man renounced his otherwise idyllic natural condition and by contract gave up part of his
liberty as a sovereign. The purpose of government was the protection of human entitlements.
- In his early writings, Locke distinguished the ruler and the ruled. The ruled were beasts who
needed taming. But in Two Treatises of Government this gulf had disappeared. The ruler is
just as likely as his subjects, to enter upon ―force, the way of Beasts‖. The opposite of force is
reason. It is this that distinguishes man from beast and it is the way of reason that God wills
men to follow.
- It is through exercising reason that men can and should know that God wills them to do.
Reason further supplies the answers where God‘s will is not clear. All humans (though not
children or mentally ill) have reason and are equal. As such they confront each other in a
state of nature.
- God‘s requirement for all men in a state of nature is that they live according to the law of
nature. Reason enables every man to grasp the content of this law.
- Knowledge of natural law was accordingly compulsive, ―writ in the heart of all mankind‖.
- Man was fully instructed by God on how he ought to live.
- In the state of nature, man‘s duties under natural law are matched by his rights under that
same law. The most important of these is the right to hold other men responsible for breaches
of this law.
- Any man could do this, but, by joining civil society, he abandoned these powers to the
sovereign.
- It was the massive increase in coercive power and the dangers of abuse of this power that
particularly concerned Locke.
- He had to explain first the ―contract‖ by which men gave others political authority over them.
This raised 2 problems:
1) Could it be shown that such contracts were historically-based (both generally and in the
specific English context)? Although there were ―states‖ of nature in locke‘s time and the
foundation of political societies could be observed, Locke evaded this problem.
2) How could it be shown that every adult member of a legitimate political society could
reasonably be supposed to have consented to its political sovereign? Locke distinguished
two kinds of consent – express consent and ―tacit and scarce avoidable consent‖. The
latter involves ―no Expressions of it all‖ but which nevertheless is as morally binding as
express acts of consents.
- Locke claims that individuals tacitly consent to obey the law by their mere presence within the
territorial confines of society, since to be within a society means taking advantage of the
benefits derived from the actions of a political sovereign.
- Express consent made a man a full member of his society; a tacit consent made him subject
to the laws of the country but did not give him either full membership of the society or the
rights, above all rights political choice, which followed from such membership.
- Express consent would explain why a sovereign had political authority but it overlooked the
fact that few, if any, Englishmen in Locke‘s day (or any other) had made an express
undertaking at adulthood. Tacit consent is a useful construct for demanding obedience to the
law by those present in a society but the line between express and tacit consent is not so
easy to draw.
- Locke has both pactum unionis and pactum subjectionis.
GOVERNMENT FUNCTION
- To protect the individual.

- As long as it is faithful to this pledge, the government cannot be denied its power but when it
ceases to do it, its laws have no validity and the government may be overthrown
MAJORITY RULE
- Majority agreement is identical with an act of the whole society. Critics find a flaw in his theory
as the inalienable rights are incompatible with majority rule.
- His ideas were a theoretical form against absolutism and the preparation for parliamentary
democracy.
- He gave support to the middle class and placed the individual in the centre and invested him
with inalienable natural rights, among which the right of property occupies a prominent place.
- He used social contract to justify government by majority and to show that governments hold
their power in trust with the duty to preserve the individual rights whose protection the
individuals have entrusted to them.
- Locke is essentially a great opponent of Hobbes. Hobbes supports authority whereas Locke
supports liberty. Once a contract is signed, man do not lose their power and rights (unlike
Hobbes‘).
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- His writings commanded almost scriptural respect in the 18 century. It led to parliamentary
democracy. His inalienable rights of the individual came to be embodied in many constitutions
and were guaranteed to the individual.
- Locke discusses about separation of power theory between the judiciary and the executive in
order to avoid abuse of power. He also stated that positive law Is not a law if it contradicts
natural law.
- Central to Locke‘s conception of government was the idea of trust. Men put their trust in the
sovereign. A ruler who betrays this trust may be overthrown. He puts himself into a state of
war with his subjects and each of these has the same right to resist him as any other unjust
aggressor.
- To disturb the government was, for Locke, a breach of law of nature; to rebel without just
cause was thus in itself unjust. “But when the oppressed people resist tyranny it is not they
who disturb government or bring back the state of war. Rebellion is an ‗Opposition, not to
Persons, but Authority‘. A tyrant has no authority; it is tyrants who are the true rebels. Tyrants
were like ―Beasts‖, ―noxious brutes‖, and the right to destroy such vermin was the right of the
human being. However, revolution, for Locke, is not to be seen as an ―act for revenge‖; rather
an ―act of restoration, of the recreation of a violated political order‖.
- His ideas can be summed up as follows:
1) Equality of men: All people are equal and hence no one has any right to injure another in
life, health, liberty or possession.
2) Self-preservation and preservation of others is in accordance with the law of nature.
3) People should be restrained from injuring others.
4) Nobody has an absolute arbitrary power over himself or over any other to destroy his own
life or take away the life or property of another.
5) The Ruler has no right to remain power if he fails to protect the lives, liberty and property
of the people.
1.2.4 JEAN JACQUES ROUSSEAU (1712 – 1778)
- He uses social contract as a hypothetical construction of reason, no as an historical fact.

- State of nature – it was not the selfish character of the people that existed. In a primitive
society, freedom and equality of men were the basis of their happiness but the same were
lost in a modern civilisation.
- Social contract is a mystical construct by which the individual merges into the community and
becomes part of the ―general will‖. Ideally, people should govern themselves. But, as he
acknowledged, ―it is unimaginable that the people should remain continually assembled to
devote their time to public affairs‖.
- State derives its existence and its justification solely from the guarantee of freedom and
equality. The government is not a sovereign but an agent to the majority‘s need and fucntions
to enforce the majority‘s needs.
- The state should be governed by ―general will‖. He extols the direct sovereignty of the people
as against the representative democracy of Parliament. He had the model of small city states
existing in his Swiss homeland.
- Rousseau only had pactum unionis. It is not a contract of individually with mutually dependent
obligations.
- He glorified the collective will as the embodiment of what is good and reasonable.. Individuals
surrendered not to a single individual but to the community and the general will. It is the duty
of everyone to obey the general will.
- Rousseau insists that whoever refuses to obey the general will shall be compelled to do so by
the whole body; ―he will be forced to be free‖. This is self-contradictory but on a true
understanding of Rousseau is not. What he is saying that disobedience is morally illegitimate
because it constitutes a failure to discharge a moral obligation a citizen incurred when acting
as a citizen. He refused to draw a distinction between morality and law; the general will is the
―moral will‖ of each citizen.
- Law is ―the register of the general will.
- Government can only be tolerated so long as it accurately reflects the general will.
RIGHTS OF REVOLUTION
- Existence of the State is for the protection of freedom and quality. If the government and laws
do not conform to the general will, they are to be overthrown.
- He is in favour of people‘s sovereignty and holds that each individual must surrender to the
community by his social contract.
- “Each man giving himself to all, gives himself to nobody; and as there is no associate over
whom he does not acquire the same right as he yields others over himself, he gains an
equivalent for everything he loses, and an increase of force for the preservation of what he
has”.
- To Rousseau, sovereignty means the exercise of general will. Since the sovereign was
formed wholly of the individuals who compose the state, he can never have any interests
contrary to theirs. Therefore, the sovereign need not give any guarantee to his subjects.
- Each individual in obeying the general will merely obeys himself; his individual will is merged
in the general will.
- Rousseau seems to be over optimistic – particularly when the majority is too large to decide
anything without representatives.
- His ideas had great influence on the French Revolution and on the French Republic during
th th
the 19 century and the first half of the 20 century. His idea of general will has been
accepted as the basic premise of parliamentary democracy.
- Rousseau‘s political theory has only tenuous links with natural law. The General Will has
come almost to replace the higher law standard that natural law has typically represented.
Rousseau is a paradox; ―the supreme prophet and theorist of modern democracy‖ and yet the
beginning of the road to totalitarianism. Rousseau‘s general will which is always right, is the
prototype of the modern tyrant.
1.3 DECLINE OF NATURAL LAW
- Factors:
a) The French Revolution had led to a reaction
b) The analytical and historical school of jurisprudence were considered not providing
adequate solutions to problems
c) WW1 destroyed the economy, social and political stability. It was considered imperative
to establish the standards again on a basis of lasting values.
d) WW2 – there was brutality and anarchy in some countries and well organised
governments in some places. As a result, many people question the relativism of in
politics and law.
e) Effect of two World Wars was insecurity and uncertainty.
f) There was a need in developing ideologies to counter militant ideologies such as Fascism
and Marxism.
DAVID HUME (1711 – 1776)
- Hume criticised natural law.

1) There is no causal connection between facts and idea. He criticises the ―ought‖ and ―is‖
theory brought up by Hobbes.
2) Concepts such as doing good and justice which is the core of natural law is only a
response or emotional reaction which is subjective.
3) Hume also challenges the idea where there can be an ideal system which was brought
forward by the natural law jurists.
4) The social contract theory is mythical and it‘s not true.
- His standpoint was that ―reason‖ as used in natural confused three different things:
1) Inevitable and necessary truths, such as mathematical axioms (such axioms are only few)
2) Relations between facts or events which are described as ―cause and effect‖ because
they are associated in a particular way. According to him, there is no logical necessity in
such association.
- The main discovery made by Hume is that guides of human action are certain values inspired
by human motives. Reason ―is and ought only to be the slave of the passions and can never
pretend to be any other office than to serve and obey them‖. Reason itself dictates no way of
acting. It can only show what means will lead to a desired end.
- He rejected reason as the guide to action. To him, it is the moral sense which establishes
moral distinctions. He says that moral sense is guided by pleasure and pain.
- An action is virtuous of vicious because its view causes a pleasure or uneasiness of a
particular kind.
- ―To have the sense of virtue is nothing but to feel a satisfaction particular kind from the
contemplations of a character‖
1.5 LON L. FULLER (1902)
- Regarded as a leading natural law lawyer.

- He rejected Aquinas‘ natural law doctrine and human rights theory by jurists. He also stated
that natural law should not solely based on justice and good.
- The similarities between several natural law theories is to find a principle of social system
which enables man to live in good condition.
- He believed that law is an effort to control man‘s behaviour. It is important to fully understand
the function of law.
- Law has two aspects of morality:
1) External – It is the ―morality of aspiration‖ – ideals. The substantive law concerns itself
with these fundamental rules without which such meaningful co-existence could not
obtain,
2) Internal – it is a procedural version of natural law.
- 8 desiderata (things which are wanted):
1) Generality
2) Promulgation
3) Prospectivity
4) Intelligibility
5) Non-contradiction
6) Possibility of obedience
7) Constancy through time
8) Congruence between official action and declared rules.
- Inner morality – an essential condition of the power of law. That is to say it is a precondition
of good law. Immoral policy is bound in the end to impair the inner morality and so the very
quality of law.
- He takes the position that iniquitous (unjust) laws not continued to exist, nor could they
combine evil policy with fidelity to the internal morality.
- Nazi laws fulfilled the 8 points Fuller made. Probably Fuller confuses efficiency with morality.
1.6 JOHN FINNIS
- He defended the notion of a conventional natural law. According to him, the inference from
‗is‘ and ‗ought‘ is not merely assumption but based on the observation on human
characteristics, which is based on facts (is).
- He says natural law is the set of principles of practical reasonableness in the ordering of
human life and human community.
- Natural law consists of two principles:
1) Consisting of certain basic values; and
2) Requirement of practical reasonableness
BASIC VALUES
- He starts with a proposition that there are certain basic values or basic goods which human
beings follow or want to follow in their lives. He enumerates such goods as follows:
a) Life – It signifies every aspect of the vitality which puts a human being in good shape for
self-determination.
b) A Basic Form of Good – Knowledge – Knowledge is of truth so one can speak of truth as
the basic good. It is knowledge for its own sake, not merely instrumentally
c) Play – It is engaging in a performance which has no point beyond the performance of it. It
may be solitary or social, intellectual or physical, strenuous or relaxed;
d) Aesthetic experience – This experience is found in the creation and/or active
appreciation of some work of significant and satisfying form;
e) Sociability (Friendship) – Friendship involves acting for the sake of one‘s friend‘s
purposes, one‘s friend‘s well-being. To be in a relationship of friendship with at least one
other person is a fundamental form of good,
f) Practical Reasonableness – It is to bring one‘s own intelligence to bear one‘s actions and
life-style and shaping one‘s own character. This involves that one has a measure of
effective freedom. It involves one seeks to bring an intelligent and reasonable order into
one‘s own actions and habits and practical attitudes.
g) Religion – It may not be in a specific form.
- These basic goods are regarded by him as self-evident. But people may have different ideas
about self-evidence itself.
REQUIREMENTS OF PRACCTICAL REASONABLENESS
- It is necessary to choose a rational plan of life to enable people to participate in the basic
form of goods.
- Practical reasonableness is the means to achieve these basic goods – together they produce
morality.
- The requirements are:
1) A coherent plan of life;
2) No arbitrary preferences among basic values, nor among persons;
3) Detachment, avoiding fanaticism;
4) Commitment (avoiding apathy);
5) Limited relevance of consequences;
6) Respect of every basic value;
7) The requirement of the Common Good;
8) Following one‘s conscience.
- Focal meaning of law is ―to see to coordinate for the common good‖
- Main criticism against his ideas is that there is no ordering in his basic goods. He leaves the
ordering to the individual as he says that these goods are incommensurable.
- He takes them as ultimate goods. There is no evaluative assessment of the basic goods.
- He takes the position that there are gradations in the injustice of unjust laws such that at one
end of the scale their injustice may not be so great as to render them no longer morally
binding in any sense, and at the other end of the scale the moral agent could rightly decide
that he was in conscience obligated to refuse obedience, even though such refusal might be
so fraught with the gravest consequences.
CHAPTER 2: LEGAL POSITIVISM
2.0 INTRODUCTION TO LEGAL POSITIVISM
- Also known as analytical jurisprudence.

- Positivism – derived from ‗Positium‘ (latin) which means to be presented. Emphasises on
scientific approach (facts, empirical knowledge and observation on social phenomenon)
- Positivism approach evaluates legal system without taking into account on morality and
justice as these considerations are considered extrinsic to the law. But they do not deny the
fact that there is a need of those values in law. Law and morality are kept separate.
- Positivist theories are commonly, if misleadingly, contrasted with the classical natural theories
which treat law as a prescription deriving its ultimate authority from a purposive morality, by
reference to which its ‗law‘ quality may be judged.
- This seeming conflict may to a considerable extent be resolved through the consideration that
positivists and naturalist may not be asking the same question about law.
- Legal positivism is a philosophy of law emphasising on the conventional nature of law – that it
is socially constructed.
- Law is synonymous with positive norms, that is, norms made by the legislator or considered
as common law or case law. Legal positivism does not base law on divine commandments,
reason, or human rights. Historically, positivism arose in opposition to classical natural law
theory.
- Legal positivism does not imply an ethical justification for the content of the law, nor a
decision for or against the obedience to law. Positivists do not judge laws by questions of
justice or humanity, but merely by the ways in which the laws have been created.
2.1 JEREMY BENTHAM: CONSEQUENTIALIST
- Inclined to renew the law as a whole and stated that English law was vague and confusing
due to the introduction of equity and that man‘s natural human rights are nonsense on stilts.
He also believes that the common law system contradicts the principles of law. He suggested
that the law must be codified.
- He was mainly interested in law reform and no reform of the substantive law could be
effectuated without a reform of its form and structure.
- Jurisprudence need to be scientific. He divided jurisprudence into two parts:
1) Expositorial jurisprudence – deals with what the law is – what it means.
Descriptive/Analytical.
2) Censorial jurisprudence – deals with what the law ought to be – requires the study of
existing law as it is not possible to assert what law ought to be without knowing what it is
– mainly concerned with the question of what law ought to be. Normative.
- He believed in utilitarianism – where everything should be viewed with a view of utility which a
thing offers. In ethics, it means that rightness or wrongness of an action depends only on the
total goodness or badness of the consequences of an act on the welfare of all human being or
all sentient beings.
- He defined the philosophy of utilitarianism as the principle of the greatest happiness of the
greatest number of people.
- Principle of utility:
1) Recognises the fundamental role of Pain and Pleasure in human life.
2) Approves or disapproves of an action on the basis of the amount of pain or pleasure
brought about (―consequences‖)
3) Equates the good with the pleasurable and evil with pain
4) Asserts that pleasure and pain are capable of ―quantification‖ – and hence of measure.
- Legislation for him was a branch of morals being the principles upon which men‘s actions
were to be directed to the greatest quantity of possible happiness.
- Bentham‘s theory is an imperative theory of law, in which the key concepts are those of
sovereignty and command.
- He defines happiness which includes common sense, wealth, ability, reputation, power,
validity and etc. Suffering to him covers pain, hostility and anything that can lead to man‘s
suffering. With this theory, a good law is a law as he defined it as ‗it is the greatest happiness
of the greatest number of people that is the measure of right and wrong‘
- Pleasure – piety, wealth, power, benevolence, skill, amity, good name etc. depending on
association with other pleasurable things, relief.
- Pain – privation, desire, disappointment, regret, enmity, ill name.
- Consequences – effect of the act has on subsequent human pleasure and pain. ―Nature has
placed mankind under the governance of two sovereign masters, pain and pleasure.‖ To
Bentham, the springs of human actions were pain and pleasure. Man by nature follows
pleasure and discards pain.
- While Bentham is aware that he had not proved that happiness is the basis of ‗good‘ or ‗right‘,
the very nature of the principle of utility is that one cannot demonstrate its validity, He could
demonstrate that so-called ‗higher‘ theories of morality were either reducible to the principle of
utility, or else were inferior to this principle because they had no clear meaning, or could not
be consistently followed.
- Competing propositions that goodness and right in an act are determined by our moral sense
or understanding or right reason or the theological principle of will of God are reducible to the
principle of utility. Since we cannot know God‘s pleasure, we must observe ‗what is our own
pleasure and pronouncing it to be His. Only pains and pleasures, therefore, give us real value
of actions.
- Every law may be considered in the light of different aspects:
1) Source
2) Subjects
3) Objects
4) Extent
5) Aspect
6) Force
7) Remedial appendages
8) Expression
- Pleasure-Pain Calculus – means to measure happiness because an act may result in
happiness to some and pain to others. Each individual and each legislator is concerned with
avoiding pain and achieving pleasure. Pleasure and pain are different and therefore have
different values. Bentham speaks of units, or what he called lots, of pleasure or pain,
suggesting that before we act, we should and really do calculate the values of these lots.
- Their value will be greater or lesser depending upon i) a pleasure‘s intensity, ii) duration, iii)
certainty, and iv) propinquity (nearness).
- When we consider not only the pleasure itself but what consequences it can lead to, other
circumstances must also be calculated, such as v) a pleasure‘s fecundity, or its chances of
being followed by more of the same sensations, that is, by more pleasure and vi) its purity, or
the chances that pleasure will not be followed by pleasure but by pain. The seventh
circumstance is of pleasure‘s extent, that is, the number of persons to whom it extends or who
are affected by it.
- ‗Sum up all the values of all the pleasures on the one side, and those of all the pains on the
other side. The balance, if it be on the side of pleasure, will give the good tendency of the
act… if on the side of pain, the bad tendency‘
LAW
- Bentham defined law as ―an assemblage of sign, declarative of volition, concerned or adopted
by the sovereign in a state, concerning the conduct to be observed in a certain case by a
certain person or class or persons who is in the case in question are or are supposed to be
subject to his power.‖ – more open concept of command, does not need to be written.
- Four elements:
i) Law is the product of the sovereign‘s will
ii) Such product is made known to the citizens or officials of the state
iii) Law lays down certain courses of action or demands restraints from actions
iv) It relies upon the use of sanctions.

- Bentham seems to reject the simple idea of ‗command‘; his is a complex imperative theory in
which he preferred the term ‗mandate.‘
- Course of action mandated by law may take one of four forms, specifically:
a) Command – e.g. ‗wear seat belts‘
b) A prohibition – e.g. ‗do not wear seat belts‘
c) A permission to forbear – e.g. ‗you may refrain from wearing seat belts‘
d) A permission to act – e.g. ‗you may wear seat belts‘
- But behind these forms are the twin features of i) the sovereign, and ii) coercion structured by
sanctions.
- Law need not originate directly from sovereign, since a law may be regarded as the produce
of the sovereign‘s will by way of conception or adoption.
- The law is subject to persons or things, it is the sovereign reaction to them that some acts are
offences while others are not.
- Bentham‘s method of legislation was first to measure the ‗mischief of an act‘, and this
mischief consisted in the consequences, the pain or evil inflicted by the act; acts that produce
evil must be discouraged. There are both primary and secondary evils that concern the
legislator.
i) Primary – i.e. a robber inflicts evil upon his victim, who loses his money.
ii) Secondary – i.e. Robbery creates secondary evil because successful robbery
suggests that theft is easy; thus weakening the respect for the sanctity of property.
- Secondary evils are often more important that primary ones as the actual loss to the victim
may very well be considerably less than the harm in terms of lessening in stability and
security in the community as a whole.
- Law aims to augment the total happiness of society by discouraging those acts that would
produce evil consequences.
- The government accomplishes its business of promoting the happiness of society by
punishing men who commit offences that the principle of utility has clearly measured as evil.
SOVEREIGN
- Command with some degree of authority.

- Bentham takes a flexible approach: it can be one person or more.
- Exercise of sovereignty is distributed (i.e. parent to child, master to servant, etc.)
- Exercise through mandate.
- Supreme legislature is omnipotent. There may be ‗checks‘ and guides but there cannot
logically be any legal limitation upon this power.
- Of the constitutive authority, the constant will (for such it cannot but be presumed to be) is –
that the national felicity, the happiness of the greatest number – be maximised: to this will, on
each occasion, is the duty of the supreme legislature, according to its ability, to give execution
and effect.
- However, if the legislature passes laws against the principle of utility, they are ‗not on that
account to be, by any judge, treated or spoken of, as being null and void‘.
- The power of the sovereign is unlimited unless limited by express convention by the
predecessor or by religious or political motivation. If by accident a sovereign should inf act
come to the throne with a determination not to adopt the covenants of his predecessors, he
would be told that he had adopted them notwithstanding.
- How does the sovereign make his will known and effective? There are two sets of laws:
i) Principal laws – addressed to the citizens
ii) Subsidiary laws – addressed to the officials to enforce the first.
If the officials fail to enforce the principal law, they will themselves be subjected to scrutiny by
other officials acting in accordance with further subsidiary laws. And while some laws may be
invitations to citizens to act in a way in accordance with their own wishes – to make wills and
so forth – Bentham stresses that punishment and sanctions are essential features of a legal
system.
SANCTIONS
- Every law has a directive and a sanctional part and it depends on the sovereign will.
- A law is dependent upon motivations, coercion and rewards for obedience.
- The sovereign rule is obeyed – his order [command or prohibition] is backed by sanction [pain
– pleasure]
- Sanction/efficient causes for behaviour is the threat of pain.
- Sanction is what gives binding to a rule of conduct or to a law. Bentham distinguishes four
sources of pain and pleasure which he describes as causes of behaviour calling them
sanctions:
i) Physical – Sanction exists naturally
ii) Political – Sanctions are enforced by the law
iii) Morality – Sanctions from the community (exile)
iv) Religious – Sanctions from God
- Bentham‘s concept of sanction is broader, less specific than Austin. The effect of sanction on
the sense of obligation is probabilistic rather than actual - i.e. Existence of a Sanction does
not necessarily ensure obligation; people can avoid sanctions etc.; BUT the expectation of
consequences of disobedience (ie fear of sanction ) generate the motivation to obey the law.
- Sanction is part of or built into a law; not separated. So sanctions are legal in nature.
- 2 forms of sanction:
i) Coercive – i.e. negative sanction
ii) Alluring – i.e. promise beneficial consequence of compliance (incentives/rewards)
- There is usually sanction to support each law. Sanctions are provided by subsidiary laws;
remedial appendages, addressed to judges with a view to curing the evil, stopping the evil or
preventing future evil.
- In public life, the legislator understands that men feel bound to do certain acts only if there are
some clear sanction connected to those acts and the sanction consists of some form of pain if
the mode of conduct prescribed by the legislature is violated by the citizen. It is the legislator‘s
chief concern to decide what forms of behaviour will tend to increase the happiness of society
and what sanctions will be most likely to bring about such increased happiness.
- Obligation through Bentham‘s concept of sanction now meant not some undefined duty but
the prospect of pain if one did not obey the moral or legal rule.
- Morality depends upon the consequences. While he admits that some motives are more likely
than others to lead to more useful conduct, that is, conduct which increases happiness, it is
still pleasure, and not the motive, that confers the quality of morality upon the act.
- The law can punish only those who have actually inflicted pain, whatever their motive may be,
though some exceptions were admitted,
- ―All punishment in itself is evil‘, thus ‗upon the principle of utility, if it ought at all to be
admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.‘
- Since law is to augment the total happiness of the community, punishment must be useful in
achieving a greater aggregate of pleasure and happiness, and has no justification if its effect
is simply to add still more units, or lots, of pain to the community.
- Principle of utility would clearly call for the elimination of pure ‗retribution‘ (someone is made
to suffer only because his act caused his victim pain) since no useful purpose is served by
adding still more pain to the sum total society suffers.
- Punishment should not be inflicted:
i) where it is groundless (i.e. offence could be simply compensated and there is virtual
certainty that compensation is forthcoming)
ii) where it is inefficacious (i.e. it cannot prevent a mischievous act – e.g. law made
retroactive/ex post facto/where law already exists but has not been announced)
iii) where it is unprofitable/too expensive (i.e. mischief it would produce would be greater
than what it prevented)
iv) where it is needless (i.e. mischief may be prevented, or cease of itself, without it: that
is at a cheaper rate‘)
- Question of private morality/ethics – whether a given kind of behaviour should be left to
private ethics instead of becoming an object of legislation: If to involve the whole legislative
process and the apparatus of punishment does more harm than good, the matter should be
left to private ethics. Bentham was convinced that attempts to regulate sexual immorality
would be particularly unprofitable, since this would require intricate supervision, as would
‗such offences as ingratitude or rudeness, where the definition is so vague that the judge
could not safely be entrusted with the power to punish.‘ Duties that we owe to ourselves could
hardly be the concern of law and punishment, nor must we be ‗coerced‘ to be ‗benevolent‘
though we can be liable on certain occasions for failing to help.
CRITICISMS – BENTHAM
- Rightness and wrongness of any act is determined not by the felicific calculus but by whether
the act assists towards reaching an end
- His theories lack sufficient certainty in application of calculus. It is never possible to predict
the consequences of an act with sufficient certainty for the calculus to be a satisfactory guide.
- It is impossible to access the weight that should be attributed to the pleasures and pains that
will result from an act.
- Bentham‘s weakness to develop clearly his own conception of the balance between individual
and community interests.
2.2 JOHN AUSTIN – COMMAND THEORY OF LAW

- Wrote The Province of Jurisprudence Determined (1932) and Lectures on Jurisprudence.
- Similar to Bentham‘s, there should be a separation between law and morality.
- Greatly influenced by the scientific treatment of the Roman law. He realised the orderliness
of Roman law and the chaos in English law. For that reason, he started the scientific
arrangement of the English law.
- Like Bentham, Austin believed that ‗law‘ is only an aggregate of individual laws.
- Austin specifies that ‗a law is a command which obliges a person or persons to a course of
conduct‘ and proceeds by way of relationship of ‗superiority‘.
- ‗The existence of law is one thing… its merit and demerit is another. Whether it be or be not
(i.e. whether law exists or does not exist) is one enquiry, whether it be or not be conformable
as an assumed standard, is a different enquiry.
- In contrast to Bentham, Austin made a sharp distinction between jurisprudence and the
science of ethics.
- ―The science of jurisprudence is concerned with positive laws, or with laws strictly so called,
as considered without regard to their goodness or badness‖
- Merely concerned with the law as it is.
- According to him, the function of jurisprudence us the exposition of general notions and
principles abstracted from positive systems of law.
- He demarcated the province of law. Jurisprudence to him meant the analysis of concepts and
his concept of law is an imperative one.
- Austin‘s imperative theory stated that there are three main concept which relate to one
another:
a) Sovereign
b) Command
c) Sanction
LAW
- A rule is laid down for the guidance of an intelligent being by an intelligent being having power
over him.
- Two categories of laws:
1) Laws properly so called; and
2) Laws improperly so called.
- These two categories are further divided.
Laws
Laws properly so called = Laws improperly so called

general commands
addressed to the
community at large
Laws by analogy, Laws by metaphor,
Laws of fashions, e.g., uniformities of
Laws of honour. nature.
Laws of God
Human law,
Laws set by
men.
Positive laws or laws strictly so called or Laws set by men, not as political
laws set by political superiors. superiors (nor in pursuance of legal right)
Positive morality
- A law is a command by a sovereign backed by law. It is a command given to a bulk of a given

political society that are in habit of obedience to a determinate common superior and that
common superior is not habitually obedient to a determinate human superior.
- Austin wants it to be more specific and he believes that it does not need to be written
- Austin: A command is
1. A wish… by rational being, that another… shall do or forbear
2. An evil to proceed from the former (sovereign), and be incurred by the latter (subjects), in
case of [disobedience]…
3. An expression or intimation of the wish by words or other signs.
- Command has to impose a burden.
- Function of law is to regulate future conduct indefinitely and to serve as a standard by which
to judge deviance. A command is more usually directed to a specified individual or individuals
with reference to a particular act or forbearance and does not serve as a general standard of
judgment. There are laws which are commands (e.g. repealing statutes, etc.)
- As law emanates from the ever-changing multitude which comprises the political machinery of
the state, it cannot be treated as the command of anyone in particular.
- There can be a command even to a wing of a sovereign.
- A law is valid if set by the sovereign, regardless of its moral content.
- Austin treats constitutional law as not being positive law as it consists of commands to the
sovereign; it is unrealistic. He also excluded customs from laws. Customs were laws when
commanded either directly by statutes, or indirectly in judicial decision.
Criticism: Salmond – if there is a rule for the acceptance of custom under given conditions,
there is no difficulty in saying that a particular custom is law before it has been specifically
adopted judicially.
- Command presupposed a commander – former laws which were given by a former sovereign
and continued after the new sovereign took over were ―tacit commands.‖ What the sovereign
permits, the sovereign commands.
Criticism: Hart (1) A sovereign may consciously permit the continuance of a former law or (2)
such a law may continue by default.
SOVEREIGN
- A determinate human superior who receives habitual obedience from the bulk of a given
society and is not in the habit of obedience to a like superior, is a sovereign.
- Buckland – ―The law is law because it is made by the sovereign. The sovereign is sovereign
because he makes the law‖
- Aspects of ‗sovereign‘
1) The common superior must be ‗determinate‘
‗all the persons who compose it are determined and assignable‟
Two kinds of determinable bodies:
a) the body is composed of persons determined specifically or individually, or determined by
characters or descriptions respectively appropriate to themselves; e.g. King
b) the body ‗comprises all the persons who belong to a given class…‘ – of generic
description: e.g. a supreme legislative assembly.
2) The society must be in ‗the habit of obedience‘
No HOB if obedience is ‗rare or transient and not habitual or permanent‘
3) HOB by a substantial number of members of a society
‘…habitual obedience must be rendered by the generality or bulk of the members of a
society to … one and the same determinate person, or determinate body or persons.’
What if there is split in HOB – ie to more than one determinable bodies?
‘If the bulk of each of the parties be not in that habit of obedience, the given society is
simply or absolutely in a state of nature or anarchy.
4) HOB  DSA [determinate superior authority] = a political society,
‘ the generality or bulk of its members must habitually obey a superior determinate as
well as common … For no determinate body capable of corporate conduct, or is capable
of corporate conduct, or is capable, as a body, of positive or negative deportment’.
5) The DSA is not subordinate to any higher political authority.
6) The power of DSA (sovereign) is not subject to legal limitation,
Supreme power limited by positive law is a flat contradiction in terms – Austin
- Dias – Austin’s sovereign was limited by the social fact of obedience which dictated to him
what he shall do.
- Ruben – democracy of the masses was unnecessary to the furtherance of the public welfare.
Austin was not interested in reform but in defending the status quo.
- Austin was not so much in favour of judicial law-making, he attacked some judicial attempts
to develop the common law.
- Austin’s sovereign is illimitable, indivisible and continuous. The sovereign cannot be under a
duty since he cannot command himself.
SANCTION
- To Austin, every law must be backed by sanction. Even nullity is sanction. Law without
sanction is not law. Hence, Austin is a positivist as he is one who regards law as being valid
not by reference to some higher law or moral code but by reason of no more than its
existence.
- Presence of physical force was decisive for an imperial ruler to continue to rule over overseas
countries and the presence of police, prisons and the coercive apparatus of the state did
indicate clearly the role of sanction.
2.3 BENTHAM V AUSTIN

- Bentham provided a deeper and more adaptable theory and his concept of sovereignty is
more flexible as it was divisible and limitable.
- His sanction was wider and less important.
- Laws were sill laws even though supported by moral or religious sanction, they maybe even
accompanied by rewards.
- Austin‘s model is a criminal law statute whereas Bentham has a rational reconstruction.
- Bentham – legal restrictions can be imposed upon sovereign. The sovereign might bind his
successors. Bentham‘s theory is closer to the judicial review doctrine.
2.4 CRITICISM AGAINST AUSTIN

- There was no question for a moral ground for the power of the sovereign. It rested on
habitual obedience.
- Lundstedt – the more one reflects on the power of the sovereign, the more it becomes clear
that it is conditioned by the legal order as a whole. He asserts that the supposition that the
legal order rests on the will of a sovereign holding independent power is fictitious.
State as the Foundation of Law
- Austin‘s theory says that the state (sovereign) is the source of law but critics point out that the
state is younger than the law; it presupposed the law. The state has no power outside the law
which could be tis fountain. The state and law are mutually interdependent.
H.L.A. Hart’s Criticisms on Austin
1) The content of law is not a series of orders backed by threats – Criminal laws are backed
by threats but not laws like contracts etc. They provide individuals with facilities for realizing their
wishes by conferring legal powers upon them to create by certain specified procedures and
subject to certain conditions, structure of rights and duties. Laws of a public nature (e.g.
constitutional law etc. are not law backed by threats. Laws are better regarded as power
conferring rules. Hart – nullity is not an evil to the person who has failed to comply with some
requirement.
2) The range of application of law is not the same with the range of application of an order
backed by threat – Austin: sovereign not bound by the command they make. Hart – in certain
systems it is true but in many systems, it has a force binding on the body that makes it. Hence,
law maker can be bound by their own law. They make law for the citizen and together with the
citizen are bound by them. What legislators do is to exercise powers conferred by rules within the
ambit of which he himself may often fall. Hart believes that Austin failed to observe and recognize
the importance of rules.
3) The mode of origin of law is different from the mode of origin of an order backed by
threat – order backed by threat originates from a deliberate act performed at a specific time. But
not all laws can be said to have their origin in a deliberate datable act such as custom. Hart –
customs do not necessarily attain legal status only by application of court and does not
necessarily have to originate from datable act. Since the command theory requires the giving of
command which can only be a deliberate datable act, the command theory failed.
4) Habit of obedience is deficient – When a ruler dies and passes the throne to his successor,
there is no knowing during the time whether the population would obey the successor or not. Only
until it is found that some are obeying him then we can say there is a habit of obedience. So,
during the intervening time, there is no sovereign according to Austin‘s definition. However, in
practice, the people would recognise the successor‘s order from the start. Thus, the notion of
habit of obedience failed to account for what our experience tells us in fact happens. It fails to
account for the continuity to be seen in every normal legal system. There are rules of succession
that secure uninterrupted transition of power from one law maker to the next. It has also failed to
account for the persistence of the legal force of the passed ruler‘s law even after his death since
before the successor rises into power, the passed ruler‘s law will still be regarded as law.
Command theory fails to explain what we know happens in any actual legal system. Remember
that Hart also demolished completely the ―tacit command‖ myth.
5) Notion of sovereign is deficient – Austin – there may be political limit to sovereign power but
there can be no legal limit on sovereign power. To understand the true nature of a legal system
and how laws come into existence, we need to think in terms, not of sovereign with unlimited
powers but in terms of rules, rules that confer authority on a legislature to legislate, rules used by
the courts as a criterion of the validity of purported legislative enactments coming before them.
Hence, what is required instead is the notion of a rule conferring powers, which may be limited or
unlimited on persons qualified in certain ways to legislate by complying with certain procedure.
CHAPTER 3: NEO-POSITIVISM - HLA HART
3.0 INTRODUCTION & RECAP: HART’S CRITICISM TO AUSTIN’S MODEL

- Linguistic professor, wrote The Concept of Law, 1961.
- Criticised the command theory. [RECAP] as it fails to explain why a statute applies to its
framers. It does not apply to laws which give powers. The continuance of pre-existing laws
cannot be explained on the basis of command. He demolished completely the ―tacit
command‖ myth. He distinguished ‗Habit‘ from a rule. A rule has an ―internal aspect‖, that is,
people use it as a standard by which to judge and condemn deviations.
- Habit of obedience fails to explain succession to sovereignty. Hart – it occurs by virtue of the
acceptance of a rule entitling the successor to succeed, not because of a habit of obedience.
If the law depends upon habitual obedience, Hart says that no law can be made by a new rex
until the law is obeyed habitually by the people. In the interregnum, no law can be made due
to the lack of habitual obedience. This could not explain succession but the rule of recognition
could – new rex was accepted due to rule of recognition as he was appointed by law – a
acceptance by the society of the rule of recognition.
- Criticism on variety of law.
- A rule differs from a habit on what Hart says as the internal aspect of the rule – a behaviour
contrary to a rule is a wrong whereas it would be inappropriate to condemn as wrong
behaviour which diverges from what happened to be a social habit.
3.1 OUTLINE OF HART’S JURISPRUDENCE

- According to Hart, the legal system is a system of social rules. Rules are ―social‖ in two
senses:
1) They regulate the conduct of members of societies (they are ―guides to human conduct
and standards of criticism of such conduct)
2) They are derived from human social practices.
- Hart criticised Austin as his model failed to encompass ―the variety of laws‖. Hart‘s
distinguished between primary duty-imposing rules and secondary power-conferring rules.
- Hart is a neo-positive as he takes into account the social and moral codes of the society. He
believes that morality can influence the law. However, he still believes in the fidelity of the law.
3.2 SOCIAL HABITS AND SOCIAL RULES

- Social habits can be observed by outsiders but the group is not aware of them. Social rules
have both an internal and external aspect.
- Habits are not rules.
- However, if someone breaks the rules, then it would be regarded as fault and renders the
offender liable to criticism. For a social rule to exist, at least some of the members of the
group must be aware of the existence of the rule and must strive to see that is followed as a
standard by the group as a whole. Social rules can be no more than social conventions such
as rules of etiquette or rules of correct speech and rules which constitute obligations.
- Rules constitute obligations are:
1) Rules which form part of the moral code of the society concerned. There may be no
central body responsible for punishing breaches of such rules but the only form of
pressure for conformity being a hostile reaction towards a person who breaks the rule.
2) Rules which take the form of law. The pressure of conformity includes physical sanction
against a person who breaks the rule – even if it is applied, not by the officials but the
community at large.
- Hart uses rule to distinguish between ―being obliged‖ and ―having an obligation‖. Robber
example – a clerk seeing the order of a gangster backed by his threats of violence – is it
similar to that of the commands of a government agency? Hart – „to command is
characteristically to exercise authority over men, not power to inflict harm, and though it may
be combined with threats of harm a command is primarily an appeal not to fear but to respect
an authority‟.
- Bank clerk may experience fear but not respect. ―Being obliged‖ VS. ―having an obligation.‖
The first does not have links with authority while the latter does. Rules of obligations are
distinguishable from other rules in that they are supported by great social pressure.
3.3 INTERNAL AND EXTERNAL ASPECT OF LAW

- Hart points out that law depends not only on the external social pressures which are brought
to bear on human beings, but also on the inner point of view that such beings take towards
rules conceived as imposing obligations.
- External aspect of law – what an outsider observes how the people conduct themselves in
response to this rule. For the rule to ‗exist‘ it must have consequences for the behaviour of
those subject to it; this involves some pattern of regular conduct by the majority, i.e. some
degree of conformity between the requirement of a rule and the behaviour of people; this does
not involve any reference to the attitude of those subject to rule towards it.
- Internal aspect of law – what distinguishes ‗legal rules‘ from customs, habits, conventions,
etc. (but not from morality) is that they involve distinctive attitude or subjective response. This
involves more than just ‗the feeling of being bound‘ or of ‗having an obligation‘: ‗what is
necessary is that there should be a critical reflective attitude to certain patterns of behaviour
as a common standard‘. This ‗critical reflective attitude‘ expresses itself in the use of
normative language (e.g. ‗ought‘, ‗should‘, ‗right‘, ‗wrong‘, etc.) MacCormick – what seems
beyond doubt is that the volitional element of the internal point of view must be recognised as
central thereto. It is the fact of people‘s will for conformity to a conceived pattern of action, of
their preference for some rather than other possible configuration of such action in given
circumstances, that is for them the primary ground of criticism and reflective appraisal of
actual conduct in society.
- Hart suggests that internal attitude must exist widely in the population.
- MacCormick‘s example: there is a difference between stopping one‘s car at red traffic lights
and playing a car radio whilst stationary at the lights. To an outside observer there is little to
differentiate the two activities, but to the insider the distinction lies in the different pattern of
thought involved.(Stopping at red light – not doing so is considered to be a lapse in behaviour,
susceptible to criticism. But it is not the case for playing car radios)
- Chess example: Understanding the game involves knowing the rules and becoming able to
adopt an internal view. To understand the game involves more than just observing the moves.
By reference to the rules and how players operate, you are able to make judgments about the
quality of the moves and it is only by achieving this internal view that one can make
judgments about the players‘ skill levels and as to whether the moves they made are right or
wrong.
- To understand law, one needs to adopt an internal view of law and the internal view is one of
a citizen living in a system and understanding what the laws are about. This seems a
comforting sight since all citizens know enough to be able to make legal judgments of right or
wrong based on an interpretation of the legal rules.
3.4 PRIMARY AND SECONDARY RULES

- According to Hart, law is the union of primary and secondary rules. Hart‘s concept of law is
based on the distinction between rules creating duties and rules creating powers.
- Sovereign is subject to limitation. He looks into the society that is governed by primary rules.
For a legal system to exist, the law that is valid according to the rules of recognition must be
in practice obeyed by a bulk of population. The relationship of the officials to the secondary
rules must be one that is accepted. They must accept them, not only obey, follow or comply
with.
- Primary rules - Concern actions involving physical movement or changes. Rules of

behaviour, those which impose duties. Tells people to do or not to do things.
- Secondary rules – Confer powers, provide for operations which lead not merely to physical
movement or changes, but to the creation or variation of duties or obligations. Secondary
rules are about the primary rules. They specify the ways in which the primary rules may be
conclusively ascertained, introduced, eliminated, varied, and the fact of their volition
conclusively determined. There are three types of secondary rules:
1) Rules of change – facilitate legislative or judicial changes either to primary rules or to
secondary rules themselves. These would, of course, include amendatory provisions of the
law.
2) Rules of adjudication – give power to courts or decision makers to settle disputes. These also
include rules which empower the court to punish the wrongdoer.
3) Rules of recognition - Enables us to know what primary rules are. When we say that a rule is
valid within a legal system, we mean that it complies with the rules of recognition of that
system. If the rule is not obeyed over a long period then it should cease to be a rule (rules of
obsolescence). Rule of recognition can be observed from both internal and external point of
view.
- Societies possessing only primary rules – possible but the primary rules must include rules
which contain restriction on violence and deception. Although the minority rejects them, the
majority must follow them. The society must be a small one and has close ties of kinship,
common sentiments and beliefs and lives in a stable environment. However there are
drawbacks resulting from this (acc. to Hart):
1) Uncertainty of rules and as to their scope – which can be solved by having rules of
recognition.
2) Primary rules are static – There would be no means of altering the rules according to the
changing circumstances but this can be met by providing secondary rules the power to
change primary rules – through rules of change, it specifies the persons who are to have
the power to alter the law and lay down the procedure to be followed to do so. It has a
close connection to rules of recognition (rules of change gives the King the power to
change the law and rules of recognition renders the law enacted by the king is the law). It
also gives power to people to introduce or vary the very first kind of rule after they did it
(e.g. wills, contracts, etc.)
3) Maintenance of primary rules is inefficient – this is due to the absence of authoritative
arbiters of disputes – no means of settling a dispute as to whether a rule has been
broken. This can be solved by having rules of adjudication which can enable any
individual to find out whether or not a primary rule has been broken. These rules will be
concerned with judges, courts, jurisdiction and judgments. It confers power on a judge to
try on certain issues.
3.5 PENUMBRA OF SOCIETY

- Hart acknowledges the fact that there is the ‗Penumbra of Uncertainty‘ or ‗Open Texture of
Law‘.
- Example: Rule – no vehicle may be taken into the park. ‗Core of certainty‘ – cars are clearly
included but the ‗Penumbra of Uncertainty‘ – Instances where the application of the rule is
uncertain such as does it cover bicycles, roller skates, etc.?
- This is explained by two ―handicaps‖ that the rule-maker (a human being rather than a god
labours under: ―relative ignorance of fact‖ and ―relative indeterminacy of aim‖.
- The ‗Penumbra of Uncertainty‘ arises in three ways:
1) The language used in statutes
2) Precedents
3) The standards used in cases or statutes (i.e. reasonable man, etc.)
- Thus, Hart says judges must use their discretion and make new law in penumbral situations.
Courts have a wide discretion in interpreting and enacting new laws. Hart believes that the
courts should not only be confined to interpreting the law but also to assist in enacting the
law.
- Hart was clear that a judge could use moral standards in legislating in gaps in legal rules but
that it did not follow from this that these standards were already there in the rules for the
judge to find.
- Every legal system creates tension between certainty and flexibility. With the penumbra of
uncertainty, it gives the courts a discretionary power to interpret the law which suits the case.
- Discretion can be made through:
a) Discretion in interpreting the rule
b) Discretion in interpreting the term/words
c) Discretion power to authorities
- Criticism will be discussed in upcoming chapters.
3.6 MINIMUM CONTENT OF NATURAL LAW – RELATIONSHIP BETWEEN MORALITY AND

THE LAW
- A legal system must have moral values used expressly or impliedly. In The Concept of Law,
Hart suggested that there is a ‗core of undisputable truth‘ in doctrines of natural law.
- There are 5 ‗truisms‘ about humanity that gives reason for postulating a ‗minimum content‘ of
social rules:
1) Human vulnerability – We are exceedingly at risk in the natural circumstances we find
ourselves. We are not, generally speaking, endowed with full protection against our
environment, either socially or naturally. We need to protect ourselves and the legal
system is one of those mechanisms which we use to protect ourselves.
2) Approximate equality – Human beings are approximately equal. Although some people
are more gifted than others and there is a spectrum as it were of human relations, it is
relatively narrow and so broadly speaking we are equally at risk from each other. Even
the strongest must sleep at times and when asleep, loses temporarily his superiority.
Equality gives rise to a mutual forbearance system.
3) Limited resources – There are limited resources and it is not enough to go round well.
This is a problem of absolute and scarcity and of distribution; there are a limited number
of resources of a particular sort and we are in competition for those; we therefore need
mechanisms to ensure that competition does not trigger reactions which result in social
chaos.
4) Limited altruism – i) Human beings are indeed altruistic – they are at times and at places
minded to act in the interests of others rather than in the interests of themselves. We
need to allow for that in different schemes of management; but ii) we must allow for the
fact that although human beings are altruistic, they are altruistic in very haphazard ways.
We cannot rely upon people acting for the good of their neighbour all the time. More
importantly we have to take account of the fact that the reason why they act altruistically
at all is often out of some sense of expectation that if they act nicely then people will act
nicely back. So, although we might have some expectations that human beings might
behave quite nicely towards each other we need to allow for haphazard application.
5) Limited understanding and strength of will – We do not always know what is good for us.
We do not always know what we should be doing in our own interests. Additionally even
when we do understand our best interests we may not be in a position to carry out what
needs to be done.
- The minimum content of natural law is the image of social norms, conventions, rules which
enable security – everybody must do this minimum.
- Hart separates law from moral as separation of law from moral lies moral as well as
intellectual values.
-
CHAPTER 4: PURE THEORY OF LAW – HANS KELSEN
4.0 INTRODUCTION TO KELSEN’S PURE THEORY OF LAW

- He wrote The Pure Theory of Law and The General Theory of Law and State. Kelsen was
influenced in his thinking by the German philosopher, Immanuel Kant and has undoubtedly
shown a leaning towards the Kantian approach to the theory of knowledge, according to
which the objective world is transmuted by certain formal categories applied to it by the mind
of the onlooker.
- He is often described as a positivist. However, he rejects legal positivism since it confuses the
law with fact. He rejects natural law theory because it confuses the law with morality. He rules
out both concepts as he believes law consists of norms; a norm cannot be derived from facts,
but only from other norms.
- The pure theory of law is a theory of positive law in general, not a specific legal order.
- It is a general theory of law, not an interpretation of specific national or international legal
norms; but it offers a theory of interpretation.
- The theory‘s exclusive purpose is to know and to describe its object. It attempts to answer the
question what and how the law is, not how it ought to be. It is a science of law (jurisprudence),
not legal politics.
- Why is it called a pure theory of law? – Because it only describes the law and attempts to
eliminate from the object of this description everything that is not strictly law. Its aim is to free
the science of law from alien elements. This is the methodological basis of the theory –
Kelsen.
- How pure is ‗pure‘? – 1) Identify the essence of law (through a formula which excludes any
material factors which obscure our perception) and 2) free from non-legal factors (existence,
validity and authority of law has nothing to do with non-legal factors such as politics, morality,
religion and ethics, etc.)
4.1 LAW
- Law is constituted by norms which inform the officials of a State as to the instances when they
may apply sanctions to person whose actions have fulfilled the conditions under which such
sanctions must be applied.
- Norm – statement of what ought to be
- Not just any norm… but LEGAL NORM.
- Sanction – law as a system of coercion – concerned primarily with the application of sanctions
to persons who have acted in certain specific ways.
- Law is not simply prohibitory, it may enable people to create sound relations and reshape
transactions (such as in the creation of wills). The law is a form of social control tha proceeds
by way of either imposing duties or conferring powers upon officials to apply sanctions.
- A citizen, strictly speaking, does not have a legal norm directed at him at all. If a citizen does
something which gives rise to the circumstances under which an official ought to apply a
sanction, that citizen has not done anything contrary to the legal norm, the citizen has, rather,
committed what Kelsen calls a ‗delict.‘
4.2 NORM
- ‗Norm‘ (German) = standard/requirement.

- A fixed standard or requirement that
i) against which other things are judges
ii) cannot be deviated from
iii) should be obeyed
- Norms are regulations setting forth how persons are to behave and positive law is thus a
normative order regulating human conduct in a specific way.
- A norm is an ―ought‖ proposition; it expresses not what it is, or must be, but what ought to be,
given certain conditions; its existence can only mean its validity and this refers to its
connection with a system of norms of which it forms a part.
- It cannot be proved to exist factually, but simply to be derivable from other norms, and is,
therefore valid in that sense.
- Theoretically, norms can go ad infinitum, but since norms are concerned with human conduct,
there must be some ultimate norm postulated on which all the others rest.
4.2.1 THE GRUNDNORM (BASIC NORM)
- Grundnorm is a mental construct which is an idea or ideology which is used to interpret the
legal structure as a well-organised system. The grundnorm is the hypothesis which closes up
the arch of legal logic.
- The Grundnorm is not created in a legal procedure by a law-creating organ. It is not valid
because it is presupposed to be valid; and it is presupposed to be valid because without this
presupposition no human act could be interpreted as legal especially as a norm-creating act.
- It is the keystone at the top that locks and holds the arch in place. Without it, the whole legal
validity would collapse.
- The Grundnorm must be extra-legal (since ex hypothesi it does not rest upon another legal
norm) but Kelsen points out that the choice of basic norm is not arbitrary. On the contrary it
must be selected by the legal scientist on the principle of efficacy, that is to say that the legal
order as a whole must rest on an assumption that is by and large efficacious, in the sense
that in the main, people do conduct themselves in conformity with it.
- The basic norm is non-positive but it is an assumed norm. Why is it assumed? Kelsen tells us
to look at what happens. E.g. if the Constitution is the primary source of law of the country,
the Grundnorm assumes that the Constitution is valid. If the King or dictator is the main
source of law, Grundnorm opines that the King or director‘s power is valid.
- Grundnorm is not the primary source of law but an assumption that the primary source is
valid. If the norms of the system are observed then we have no option but to accept that the
validity of the Grundnorm is presupposed.
- To try to demonstrate the validity of the Grundnorm is to try to lift oneself by one‘s own
bootstrap.
- There is no more beyond the Grundorm. Validity of a norm must be traceable to the
Grundnorm.
- The basic norm is propounded as the means of giving unity to the legal system, and enabling
the legal scientist to interpret all valid legal norms as a non-contradictory field of meanings.
4.2.2 HIERARCHY OF NORMS
- Kelsen describes the legal process as a hierarchy of norms, the validity of each norm (apart
from the basic norm) resting upon a higher norm, and each level in the hierarchy representing
a movement from complete generality to increasing individualisation.
- At the top is the Grundnorm and is followed as such:
Basic norm Norms Sub-norms
- There must not be a total disregard of the Grundnorm but there need not be universal
adherence to it. When a Grundnorm ceases to derive a minimum of support, it ceases to be
the basis of the legal order and any other proposition which does obtain support will replace it.
4.2.3 VALIDITY AND EFFICACY
- For a norm to be valid, the following conditions must be fulfilled:

1) A norm must be part of a system of norms;
2) The system must be efficacious.
- Concept of validity can be understood by studying the four meanings given to it by Kelsen –
Starke:
i) A norm exists with binding force;
ii) A particular norm concerned is identifiably part of legal order which is efficacious;
iii) A norm is conditioned by another norm of higher level in the hierarchy of norms;
iv) A norm which is justified in conformity with the basic norm.
- Principle of legitimacy is restricted by the principle of effectiveness:
“The reason for the validity of a norm can only be the validity of another norm. Effectiveness
is a condition for the validity but effectiveness is not validity. This must be stressed because
the effort has been made to identify validity with effectiveness; and such identification is
temporary because it seems to simplify the theoretical situation”
- Validity and efficacy are two completely distinct qualities. Efficacy is caused by causality,
while its validity is explicable in terms not of causation but of imputation.
- Validity of norms depends on the validity of another norm, the whole series forming, as it were
an ascending hierarchy. Validity of norm is not disputed and so is presumed.
- It has to be part of a system of norm and must be efficacious.
- Grundnorm is valid if it passes the test of efficacy:
1) See whether the rules that can be deduced from legal norms are obeyed.
2) If the rule is not obeyed, whether the primary norm, directed to officials to take specified
action is complied with. If yes, then it succeeds the test. If no, then the ‗ought‘ is no longer
to be complied with.
- A legal order does not lose its validity when a single norm ceases to be effective, nor does a
single norm lose its validity if it is only ineffective from time to time. A norm is not however,
considered to be valid when it is never applied, having been initially valid on account of its
connection with a generally efficacious system of norms. It may lose its validity by never being
applied in practice.
- Cases that discuss validity and effectiveness and the problem of revolutionary transition:
i) Madzimbamuto v. Lardner Burke [1968] (2) S.A. 284. – A Rhodesian Court as well as
the Privy Council held that the 1965 Constitution was illegal but the white minority‘s
rule was effective.
ii) The State v. Dosso Pak L.D. [1958] S.C. 533 – The Supreme Court of Pakistan
accepted the regime which had usurped power unconstitutionally as legal on grounds
of effectiveness but in
iii) Jilani v. Govt of Punjab Pak L.D. [1972] S.C.139 – The Supreme Court declared it
illegal, notwithstanding effectiveness and overruled Dosso.
iv) Michell v. DPP [1985] L.R.C. Const. 127 [1986] L.R.C. 122 – The Grenada Court of
Appeal had taken the view that the choice of a Grundnorm was not dictated inflexibly
by effectiveness but was a political decision as Kelsen had admitted. Justice Haynes
was reluctant to regard the revolutionary government as legal unless it complied with
4 conditions:
1) A successful revolution must have taken place
2) The government is in effective control
3) Such conformity was due to popular support not mere tacit submission to
coercion; and
4) The regime must not be oppressive or undemocratic.
- So, a break in the chain of continuity from the historically ‗first constitution‘ – will it change the
efficacy of the grundnorm? Kelsen refused to include non-law analysis BUT the efficacy of
the supplanting grundnorm (and the removal of the previous one) will not be a question of
‗law‘, but of (primarily) politic and moral/ethical/sociological.
4.3 COERCION AND SANCTION
- Kelsen thinks that every system of norms rests on some type of sanction.
- The essence of law is an organisation of force, and law thus rests on a coercive order
designed to bring about a desired moral conduct.
- Sanction – the key characteristic of law not because of any suppose psychological
effectiveness but because it stipulated that coercion ought to be applied by officials where
delicts are committed. The law attaches certain conditions to the use of force, and those who
apply it act as organs of the community.
- Kelsen believes that in order for every norm to be ―legal‖, it must have a sanction.
- He treats any breach of a legal norm as a ―delict‖. To be legally obligated to a certain
behaviour means that the contrary behaviour is a delict and as such is the condition of a
sanction stipulated by legal norm.
- No conduct can amount to a delict unless a sanction is provided for it.
- There is criticism to the statement above on the ground that though the absence of a sanction
may make law ineffective, it is not the same as being invalid. Kelsen does recognise that a
legislature could make laws without considering it necessary to attach sanctions for violations
but he still objects, however, that although, under such system it would be possible to decide
whether a norm is legal by determining that it came from an appropriate authority, we would
even so not be able to provide thereby a criterion by which law could be distinguished from
other social norms. But, as was pointed out, even if sanctions were essential to law, it is the
legality of legal sanctions, not their character as coercive acts, which would contribute to the
essence of law, since other social norms may also have coercive acts attached to them as
sanctions.
- Kelsen also states that the content of legal norms is not primarily to impose duties on the
subject to conform, but rather to lay down what judges or officials are expected to do in the
event of a delict.
- The norm which lays down the sanction, involving a direction to the judge, is the primary
norm, though he recognised that there is a secondary norm which stipulates the behaviour
which the legal order endeavours to bring about by announcing the sanction.
4.4 FUNCTION OF THE JUDGE
- The function of the judge is to interpret the law and apply the norm but he should not create a
norm by himself because that is the function of the legislature.
4.5 UNIVERSALITY
- Kelsen believes that his theory is of universal application, it can apply to a capitalist state or
socialist state or even a communist state and it equally applies to countries which are in
different stages of development.
4.6 INTERNATIONAL LAW
- Kelsen thinks that International law is law as it contains all the essential elements of a legal
order. It is a coercive order and it provides for sanction.
- ―International law is real law but it is primitive law‖ – because sanction is left to the state, the
very subject whose rights are infringed, instead of being delegated to a central organ as in the
case in the national legal order.
- What is the basic norm of international law? Pacta sunt servanda can be the Grundnorm of
international law.
4.7 PUBLIC AND PRIVATE LAW
- Kelsen believes that there is no distinction between both. Public law also protects private
interests and private law won‘t be there if there is no public interest involved in it.
CHAPTER 5: INTERPRETATIVE JURISPRUDENCE – R. DWORKIN
5.0 INTRODUCTION
- Dworkin‘s theory of law is that the nature of legal argument lies in the best moral
interpretation of existing social practices. His theory of justice is that all political judgments
ought to rest ultimately upon the injunction that people are equal as human beings,
irrespective of the circumstances in which they are born.
- He developed interpretive theory of law, primarily as a response to legal positivism – it means
that legal reasoning is an exercise in constructive interpretation.
- His books – Taking Rights Seriously (1978), A Matter of Principle (1985), Law‟s Empire
(1986).
- Positivism's most significant critic rejects the theory on every conceivable level. He denies
that there can be any general theory of the existence and content of law; he denies that local
theories of particular legal systems can identify law without recourse to its merits, and he
rejects the whole institutional focus of positivism.
- To identify the law of a given society we must engage in moral and political argument, for the
law is whatever requirements are consistent with an interpretation of its legal practices
(subject to a threshold condition of fit) that shows them to be best justified in light of the
animating ideal.
- He finds deep controversy among lawyers and judges about how important cases should be
decided, and he finds diversity in the considerations that they hold relevant to deciding them.
The controversy suggests to him that law cannot rest on an official consensus, and the
diversity suggests that there is no single social rule that validates all relevant reasons, moral
and non-moral, for judicial decisions
- Dworkin questions positivism due to the rejection of the function of morality in law, for putting
too much focus on law (especially Hart) and the acceptance of judges‘ role as ‗legislator.‘
- Dworkin thinks that laws are more than just rules declared/decreed by institutions.
- In contrast to the utilitarian view, he believes that the law‘s purpose is not about serving the
general welfare of the community.
- Dworkin‘s theory of law revolves around his theory of rights and it is concerned primarily with
individual rights. It also responds to criticises Hart‘s legal positivism.
5.1 THE RIGHTS THESIS

- Prioritises rights. The principled protection of rights is more fundamental than policy
considerations, or a literal adherence to seemingly obvious rules.
- Legal rules and principles express and protect rights in the legal order, thus enabling
individuals to have a secure social space, and minorities to not be pawns of utilitarian
calculations.
- Judges must always try to uphold rights of the parties. Judges need a jurisprudence which
enables them to distinguish clearly between arguments based on adherence to rules,
weighing principles and uncovering rights, and following contrasting policy arguments.
- Rights are trumps in Dworkin‘s theory, which means that if there is any right which comes into
conflict with any policy, the right must prevail.
- Thus, judges ought to display moral integrity; they ought to strive to be fair to the parties, and
that means beings faithful to the legal rights of the parties.
- Judges decide hard cases by confirming or denying concrete rights. But the concrete rights
upon which judges rely must have two other characteristics:
i) they must be institutional rather than background rights (Institutional rights are
genuine rights
ii) they must be legal rather than some other form of institutional rights.
- Dworkin‘s right thesis covers the following eight propositions
1) Every stable legal system expresses a dominant political philosophy and it is this which gives
coherence and unity to the legal system.
2) The philosophy is expressed in the values and traditions of the law and is worked out daily in
the practice of developing law and deciding cases – it is not a purely academic philosophy,
but a matter of professional commitment (or integrity)
3) Political system is also made up of legal principles, and these express the dominant political
values of the system. Dworkin recognises that the development of the law is influenced by
policy but policy is an external force at work through legislation.
4) Rules differ from principles in three ways:
i) While rules are created or destroyed by legislation or judicial discretion, principles
emerge slowly and sometimes imperceptibly and equally they decline imperceptibly
(e.g. Donoghue v. Stevenson – Dworkin would say that the neighbour principle
emerged gradually, it was not created there and then). Principles are extended,
refined, developed, amended or reduced in later cases.
ii) Principles have a dimension of weight so that they can be more or less influential in
any given case, whereas rules are applied in an all-or-nothing fashion.
iii) Rules cannot conflict: if there is an apparent conflict of rules then one is wrong and
has to give way, or one rule is an exception and a new rule emerges. By contrast,
principles can conflict and give opposite guidance. This problem is a matter of judicial
craftsmanship; the judge must weigh up their relative significance, and balance which
principle is more important in a given case.
5) Judges do not, and cannot properly, exercise uncontrolled discretion in deciding any case,
even when there are apparently no rules of law for the judge to apply. The judge‘s task in a
hard case is to decide the case in the light of the wider political morality of the legal system; in
American law this will be to protect the fundamental legal values of the system.
6) In hard cases, there is always a right legal answer there to be found. However difficult legally
this search is, the structure of the argumentative process implies that there will be an answer.
The task of finding it is to consider rules and principle in interaction and by use of judicial
craftsmanship. A right legal answer would be one that asserts and protects rights which are
explicit or implicit in the fundamental values of the legal system.
7) Judging is not easy and ordinarily judges will not get it right. The only judge to get it right
would be one with ultimate wisdom, who comprehended the entire history of decisions and
possessed an omniscient understanding of the political values of a system; that is, Hercules.
However, Hercules is just a model. But Dworkin is adamant that Hercules is realistic in that he
is the best interpretation of actual legal reasoning
8) Although Hercules always gets it right, every judge has the obligation to aim for the right
answer and lawyers are part of this same enterprise. Therefore, lawyers may criticise judges
for misunderstanding the principles and values and traditions of the legal system. Ordinary
citizens also have a voice here as is particular evident in Dworkin‘s discussion of the case of
civil obedience and the right to disobey the law.
5.2 PRINCIPLES AND POLICIES
- Dworkin stated that law must not only contain rules but also comprising of principles and
policies. These standards are the basis of morality in order to protect the people.
- Principles: Relates to the rights of individuals. It is a standard that needs to be obeyed to
fulfil/satisfy justice or morality.
- Policies: Identify collective goals, set out ―a goal to be reached, generally an improvement in
some economic, political or social feature of the community.‖ It is a standard which gives
purpose that needs to be achieved which enhances the society‘s economy, social and
political aspect.
- Dworkin is not in favour of judges using policies in interpreting laws. He is in favour of giving
discretion to judges in a weak sense and not a strong sense. If judges decide cases on
policies, they get a wide discretion which Dworkin denies to judges.
- Plus, he believes decisions based on policies have no gravitational force as precedents
whereas cases based on the past legal history of the practice have a gravitational force.
5.3 THE ONE RIGHT ANSWER THESIS
- Dworkin asserts that there is always a right answer to a question of law.

- The right answer is one which produces a better fit with the existing law and legal practice.
- There is always one right answer to be found by the judge called upon to interpret a law.
- Law‟s Empire – “In most hard cases there are right answers to be hunted by reason and
imagination”
“I have not drawn the conclusion that many readers think sensible. I have not said that there
is never one right way, only different ways, to decide a hard case”
- Critics criticise him because it is difficult to demonstrate that there is only one right answer to
a question.
- Hart criticises Dworkin‘s right answer thesis as flawed and vulnerable to criticisms.
- It can be said that what Dworkin meant to say was that there is a possibility of finding the best
answer as his theory says that there is one. In other words, the judge is given the hope that
he must not give up thinking that there is no best answer at all. What the judge needs to do is
to exert himself to get to it.
- Basically, this thesis wants us not to relent but to make the utmost effort to get the best
answer.
- It is an ideal that Dworkin seems to present to the judge in practical pursuit. It is still important
as it makes us optimistic in the first place and encourages us to go ahead in our search for it
even though we may not be able to prove what the right answer is.
5.3.1 JUDGE HERCULES
- A sort of Plato‘s philosopher-king in a judge‘s garb.

- Hercules is generously endowed with superhuman skill, learning, patience and acumen. He
accepts the main, uncontroversial, constitutive and regulative rules of law in his jurisdiction.
- He accepts that the statutes have general power to create and extinguish legal rights and that
judges have the general duty to follow earlier decisions of their court or higher court.
- Hercules is not exercising his discretion as to just outcome. He is long at the totality of the
objectives on which his society is based and deducing from these, from the theory of the
society that he constructs, the principles immanent within that society.
- He will be able to see what rights citizens have and decide the outcome of cases that comes
before him.
- Dworkin expects of Hercules to be able to construct a scheme of abstract and concrete
principles, providing a coherent justification for all common law precedents, statutory
provisions and the constitution. Thus, he must construct the ‗soundest theory of law‘ and he
should be able to justify his political and legal theory with a set of legal principles.
- This theory must ‗fit‘ and ‗justify‘ the settled law, fit with the past political decisions and also be
justifiable or morally sound.
- Dworkin – the judge gives effect to what is already implicit in the society within which the legal
system operates. Judges do not make law, they find it.
5.4 DWORKIN V HART
5.4.1 HART’S PENUMBRA OF UNCERTAINTY VS. DWORKIN’S HARD CASES

- [RECAP ON PENUMBRA]
- Hard case – one that is difficult to decide because there is no law or clear law to apply to it.
Neither is there any precedent that covers the case. And yet the judge is supposed to decide
it. It is hard for the judge to decide which of the two conflicting principles should prevail.
- Positivist view – since there is no law on the point, the judge has got discretion to decide it in
any way he likes it.
- Dworkin criticises this as it fails in hard cases. The basic standpoint of positivism that there is
law to govern every possible situation is disproved. He criticises the application of pedigree
test to determine the validity of law.
- Dworkin says there needs to be a consistency in principle instead of the question of
justification dependent on a historically desirable state of affairs.
- An argument must be true by independent conviction and not only by convention. Dworkin
calls the former an argument of substance, made by reference to the substance of the
arguments that a legal argument is important.
5.4.2 RULES AND PRINCIPLES
- Dworkin believes that in hard cases, the judicial process needs substantive moral values
where a noble judge must take into account policies, principles, precedents, statutes and the
constitution before making a decision.
- Several cases to discuss:
i) Riggs v. Palmer (Elmer case) – Elmer (the grandson and the beneficiary) murdered
the grandfather in order to inherit his property. The court held that because of the
legal principle that no one should be permitted to profit from his own fraud or take
advantage of his own wrong, the grandson was disbarred from the inheritance.
ii) Henningson v. Bloomfield – A person bought a car under a contract with exemption
clause which provided that the manufacturer‘s liability was limited to making good
defective part. But the person was injured due to an accident. He wanted to claim
from the manufacturer notwithstanding the exemption clause. The court held in favour
due to principle to insert manufacturer‘s liability fir automobile defects.
- Law is concerned not only with established, posited, rules but also with principles - Rules
operate in ‗all-or-nothing‘ fashion. Either the case falls under the rule or not. A rule either
determines an issue or it has nothing to say on the issue. But a principle does not dictate an
answer as does a rule. A principle merely follows a direction, it merely gives a reason.
Principles are guidelines that judges must take into account if they are relevant in reaching a
conclusion. When two principles lead to different conclusions, the judge must take into
account the relative weight, the persuasive pull, of each. If two rules conflict, the only one can
be valid.
- Argument of principle and argument of policy – Argument of policy justifies a political decision
by showing that the decision advances or protects some collective goal of the community as a
whole. Arguments of principles justify a political decision by showing that the decision
respects or secures some individual or group rights. Spartan Steel and Alloy Ltd v Martin Co.
– The DFs‘ employees broke an electric cable belonging to a power company that supplied
power to the PF. As a result, the PF‘s factory was shut down and through loss of production,
suffered financial loss. The court might, according to Dworkin, have reached its conclusion by
asking a firm in the position of the PF had a right to recovery which is a matter of principle or
whether it would be economically wise to distribute liability for accidents in the way the PF
suggested, a matter of policy.
- Dworkin - rules may not always be sufficient to reach a decision.
- Positivist – they hold that where a case cannot be decided by clear rules then a judge must
decide it by the exercise of his discretion.
- Hart – accepts that where rules run out, the law is open-ended. The rules of law at their
fringes have an open texture.
- Dworkin – when rules run out, then judges in reaching their decision should be guided by
principles.
- Rule of recognition – the idea is defective as it provides no place for establishing the validity
of principles. The origin of legal principles lies not in a particular decision of some legislature
or court but in a sense of appropriateness developed in the profession and the public over
time.
- Dworkin – no rules of recognition which distinguishes legal and moral principles. A judge in a
hard case must appeal to extra legal principles which will include his own conception of what
is the best interpretation of the great network of political structures and decisions of his
community.
- Hart believes that principles are broad, general and unspecific. A number of rules could be
cited that are instances of the application of single principle. Principles because they refer
more or less explicitly to some purpose, goal, entitlement or value are regarded from some
point of view as desirable to maintain and so not only as providing an explanation or rationale
or rules which exemplify them, but at least contributing to their justification.
- Dworkin – rules conclusively determine the legal result or outcome. Legal principles may point
or count in favour of a decision, they do not necessarily and invariably determine the
outcome.
- Dworkin said Hart‘s legal system failed as he failed to take into account importance of
principles. Hart argued that a valid rule is applicable to a given case it must unlike principle,
always determine the outcome. It is a matter of degree.
- Morality – Hart separate laws and morality as there can be legal rights or duties but no more
moral justification. Dworkin holds the view that there must be prima facie moral grounds of
assertion of the existence of legal rights and duties.
5.4.3 IDEA OF A CHAIN NOVEL
- Dworkin uses the analogy of a chain novel where each novelist writes his own chapter in the
light of what has gone in the earlier chapters and attempts to make it as best as it can be. A
good novelist should try to make the chain novel look as the work of a single author. Of
course, the novelist must have his own perspective as regards the plot, characters or theme.
He may disagree with some parts of the text but his interpretation must flow through the text.
It must have general explanatory power. Of course, it would be flawed, if it leaves some major
structures of the novel explained.
- His explanation must capture most of the text of the novel and if he cannot find an
interpretation which fits and justifiable, he must abandon his enterprise. But if he cannot find
an interpretation that is good enough but there is more than one reading available, he should
select the one that makes the work best. Sometimes, he might have to accept interpretations
he might have rejected in the beginning and reconsider the views he might have sought to
embody in his theory.
- Dworkin prioritises legal history in the determination of Hercules‘ concept of justice.
- The judge must also keep in view the actual political history of his community but Dworkin
does not allow his Hercules to adopt individual or personal notions of justice to override the
political history of the community. (Personal views about justice must give way to the
requirement of political morality of the community)
5.5 GROUNDS OF LAW AND THE FORCE OF LAW
- Dworkin – philosophies of law overemphasise on grounds of law.

- Grounds of law – what the law provides in its provisions.
- A sound political thory requires an explanation not only on the grounds of law but also on the
force of law.
- Force of law – moral force of law.
- Fuller‘s idea of internal morality of law is very much reflected in Dworkin‘s thinking in terms of
moral force of law. Implicit in this belief is the view that law, if bereft of morality, would be
without force. It is moral value that endows law with force.
- Precedents are relevant if it is based on fairness or a similar virtue such as treating people
like equals.
- Arguments on moral weight are the ones on the basis of which precedents may be regarded
as relevant. Overall, Dworkin emphasis the moral point of arguments.
5.6 LAW AS INTERPRETIVE CONCEPT
- Dworkin – law is an interpretive concept. He believes that law is a matter of interpretation; it is

amenable to interpretation. In other words, it is futile to describe law in any rigid or fixed
terms.
5.6.1 THE IDEA OF INTERPRETATION
- Dworkin – to interpret a law is to get to its point or purpose. Interpretation should result into
making the best of something.
- How? – by enquiring into the point or purpose of law and say that the law should mean we
discover to be its point or purpose. Another method is by making the best of a law is to place
it in its best light – this may not necessarily enquire into its purpose or point (best means
‗morally best‘)
- He says that theories of law designed to explain the meaning of law are semantic strings –
disputants disagree on the meaning of words or phrases in the law because law itself is an
interpretive concept.
- Law is subjected to the machinations of constructive rather than conversational interpretation.
A constructive interpretation is creative and is a matter of imposing purpose on an object or
practice in order to make of it the best it can be. Creative interpretation, on the constructive
view, is a matter of interaction between purpose and object.
- Process of constructive interpretation:
1) Pre-interpretive stage – The participant identifies the rules and standards that tentatively
constitute the practice (lawyers agree to what the relevant law is which is applicable to
the dispute in hand). Some kind of interpretation may be necessary even at this stage.
Dworkin states that law cannot flourish as an interpretive enterprise unless there is
enough initial agreement about what practices are legal practices so that lawyers argue
about the best interpretation of the same data. People just observe a social practice (e.g.
practice of courtesy by taking off hats. There is no questioning about its desirability or
suitability. People just do it by custom or habit. Nobody wants to know the reason for
practising this courtesy of taking off hats.
2) Interpretive stage – The interpreter settles on some general justification for the main
elements of the practice. The justification need not fit every aspect or feature of the
standing practice but it must fit enough for the interpreter. People while observing a social
practice raise questions as to why the practice continues. People may have different
notions about something. Some may support it, others may criticise it and some others
might want to change it. Some changes may be devised to suit peculiar or uncommon
cases. At this stage, some sort of conclusion emerges and the practice henceforth is to
be understood in accordance with the conclusion.
3) Post-interpretive stage/reforming stage – it is a reforming stage at which the interpreter
adjusts his sense of what the practice requires so as to serve better the justification he
accepts at the interpretive stage. As a result of this stage, some consensus emerges as
to the social practice people want to conform to. It might be possible that people may
decide to stop a practice altogether. This stage is to give effect to the consensus that has
resulted at the interpretive stage.
5.7 JUDGE’S DISCRETION
- Hart – judges have a wider discretion – judges do make law. Judges do not simply find and
apply the law; they do make it. The open texture of the law leaves a vast field for judges to
display creativity. They must act with impartiality and neutrality, keeping in view the interest of
all the affected parties, judges may use general principles as a reasoned basis for decision.
- Dworkin objects:
1) Judges are not elected and only representatives of the people make law.
2) If judges make new law and apply it retroactively, the losing party is unjustly punished for
a duty created after the event.
- He explains discretion in three senses:
i) A person has discretion if his duty is defined by standards that reasonable men can
interpret.
ii) A person has discretion when he has to give a final decision that is not reviewable by
any other higher authority.
iii) A man has discretion under a general duty but no duty as to particular decision
- Dworkin is willing to concede discretion to the judge in the first two situations but not in the
third.
- He opposes the view that judges make law because a legal system is always founded on
principles. Therefore judges do not really have a ‗strong‘ discretion. If the rules fail to give a
clear answer, judges do not have discretion unlimited by any legal standards. The judge‘s
discretion is to do what is right in consonance with legal principles, legal values and other
relevant legal standards. Judges are subject to a strong requirement of ‗articulate
consistency‘.
- However, commentators (MacCormick) say that the proposition that judges have weak
discretion and they are to ‗find‘ the right answer from the principles is unsustainable.
5.7.1 LIMITATIONS TO JUDGE’S DISCRETION
- A judge‘s function is to interpret the law – the idea of the chain novel.
Checkerboard solution – arbitrary. Where a dispute involves matter of merely practical
convenience then a checkerboard solution may be acceptable. Deficiency of checkerboard
solution might not lead to injustice as rejection of checkerboard solution may produce greater
injustice then its acceptance.
- The uniquely correct answer – in every hard case, there is always a correct answer. The one
right answer thesis.
- Equality of treatment – equality and liberty should join together as two sides of a coin. Without
equality, the community will not be a fraternity. People should be made as far as possible
equal in their freedom so that they develop their lives in accordance to their convictions and
ambitions.
- Law as integrity – law is integrated whole: judges should look at the law and the society of
which it forms a part as being in a condition having in part or element missing as being in a
state of wholeness, completeness. Integrity is not honesty but integratedness. The function of
law as integrity is to provide justification for the exercise of coercion by the state over its
citizens.
- Dworkin is against pragmatism – Pragmatism is where the litigant asks the court to decide in
his favour, not on the ground of pre-existing rights but because of a finding in his favour will
accord with the betterment of the society,
CHAPTER 6: SOCIOLOGICAL SCHOOL
6.0 INTRODUCTION
- Social sciences had an influence almost comparable to that of religion in earlier periods.
- Legal thought had tended to reflect the trends to be found in sociology.
- There are jurist who explain law by looking at society:
a) Rudolf Van Jhering
b) Eugen Erhlich
c) Roscoe Poung
- There are jurist who explain society by looking at its laws
a) Max Weber
b) Emile Durkheim
- Even though it‘s difficult to identify a central proposition of sociological jurisprudence, ione can
pinpoint a number of ideas in the thinking of those who adopt a sociological approach to the
legal order. There is a belief in the non-uniqueness of law; a vision of law as but one method
of social control. There is also a rejection of a ―jurisprudence of concepts‖, the view of law as
a closed logical order.
- Sociological jurists tend to be sceptical of the rules presented in the textbooks and concerned
to see what really happens, ―the law in action.‖
- They espouse relativism and reject the belief of naturalism that an ultimate theory of values
can be found. They see reality as socially constructed with no natural guide to the solution of
many conflicts. They also find it important to harness the techniques of social sciences, as
well as the knowledge culled from sociological research, towards the erection of a more
effective science of law.
- Key proponent/jurist in sociological jurisprudence is Roscoe Pound but in order to understand
Pound, we need to look at his idealistic predecessors.
6.1 RUDOLF VON JHERING (1818 – 1892)
- Made an intensive study of Roman law and he started detesting jurisprudence of concepts.
- Influenced by Bentham‘s utilitarian view of the law.
- Jhering, by contrast with Bentham, placed great emphasis on the function of law as an
instrument for serving the needs of human society.
- What is the function/purpose of law? Law as a social instrument.
- “Law, by means of coercive methods, would be the instrument of order by which society could
balance the needs of the individual with the needs of society”
- In each society, there is an inevitable conflict between social interests and each individual‘s
selfish interest. Thus, to reconcile this conflict the state employs both the method of reward,
by enabling economic wants to be satisfied, and the method of coercion
- Unorganised coercion may exist as in the case of social conventions or etiquette, but law is
specifically that form of coercion which is created by the state.
- He acknowledged altruistic impulses but he recognised that these would not be enough
without the coercive form of social control provided by law.
- The success of the legal process – measured by the degree to which it achieved a proper
balance between competing social and individual interests. However, Jhering didn‘t give
much indication of a scale of values with which to achieve this balance.
- Law is not merely a formal system of rules but a social mechanism to serve the social
purpose. It acts as an impartial mediator between conflicting or contesting interest and this
resolving conflict between individual common interests (e.g. individual interests vs. society‘s
interest such as enjoyment of property v. public interest in minimal interference in enjoyment
of common goods)
- Law is a form of volition – paramount necessity of law is to serve social purposes.
- Jhering‘s utilitarianism is the recognition of purpose as the universal principle of the world,
embracing inanimate as well as animate creation.
- ―The stone does not fall in order to fall, but because it must fall, because its support is taken
away; whilst the man who act does so, not because of anything, but in order to attain
something. This purpose is as indispensable for the will as cause is for the stone. As there
can be no motion of the stone without a cause, so can there be no movement of the will
without a purpose‟
- Every legal rule owes its origin to a purpose.
- Legal rights –protected interests.
- Habitual action – that which is originally called forth by a more or less consciously felt purpose
and which by frequent repetition for the same purpose has found purpose and action together
so that the act is done without consciousness of the purpose. ―Purpose in the law‖ means to
Jhering three things:
1) the relation of individual purposes and habits to legal rules;
2) the purpose of lawmakers who established the rules;
3) the purpose or ends which Jhering finds in them.
6.1.1 HUMAN NATURE
- Jhering recognised that most people on most occasions act from egoistic self-assertion but
man cannot live alone as they need to live in a society. He needs to live in a society and his
social impulses are the result of his adaptation to his social environment.
- Purpose of human volition is not the act itself but the satisfaction derived from it. E.g. debtor
pays his debt in order to free himself from it. The purpose of law is for the protection of
interests.
6.1.2 INTEREST
- Interest – pursuit of pleasure and avoidance of rules.

- Individual interest is made part of a social purpose by connecting one‘s own purpose with
other people‘s interests. Through this convergence of interests for the same purpose,
cooperation is brought about. Commerce, society and the state results from this.
6.1.3 LEVERS OF SOCIAL MOTION
- Egoistic and altruistic motives. Existence of society is a combination of them.

- Egoistic levers – reward and coercion. Desire for reward produces commerce.
- Altruistic/moral levers – feelings of duty and love.
- Four levers combine to make society possible and the object of society is to secure the
satisfaction of human wants.
- Categories of wants:
i. Extra-legal wants - offered to man by nature with or without force (e.g. produce of
soil)
ii. Mixed-legal wants – conditions of life exclusive to man (e.g. preservation of life,
reproduction of life, labour and trade)
iii. Pure-legal wants – command to pay debts to taxes. No legislation is needed for
eating, drinking of reproduction of the species.
- Realisation of social purpose may be pursued by morality, ethics or law.
- Characteristic approach of law is through the power of the state which exercises external
coercion. This method and not the content of law which is permanent and stable – content of
law must be infinitely various.
- Purpose is a relative and law must adapt its regulations to the varying conditions of people,
according to the degree of civilisation and the needs of the time.
- Jhering says ―the idea that law must always be the same is not (whit) better than that medical
treatment should be the same for all patients‘
- Private interest – how is it reconciled with the interest of the state? Jhering says that society
stands above the particular individual. The individual is enabled to desire the common
interest, in addition to his own. The law never secures the good of the individual as an end in
itself, but only as a means to the end of securing the good of society. Therefore, property
exists not solely for the owners but also for society. Thus, he justifies expropriation because it
solves the problem of harmonising the interests of society with those of the owner.
- Jhering – the first to develop a theory of a balance of purposes and interest.
i) His is a more elastic legal technique.
ii) His insistence that law is realised through struggle and self-assertion has effectively
opposed the romantic conception of an unconscious manifestation of the volksgeist
through the law.
iii) He could not resolve the conflict between the individual and the collective interest.
- “Law is the sum of the conditions of social life in the widest sense of the term, as secured by
the power of the state through the means of external”
6.2 EUGEN EHRLICH (1882 – 1922)
- An eminent jurist who was concerned to expound the social basis of law – law is derived from
social facts and depends not on state authority but on social compulsion.
- Law is different from other forms of social compulsion, and the state is merely one among
many associations, though it possesses certain characteristic means of compulsion.
- What is ‗law‘? – ‗Positive law cannot be understood apart from the social norm of the living
law.‘
- Law is a form of social control is a sense that there is normative/coercive social force through
moral values, customs, ethics, traditions, and practice, etc.
- Conformity to law and social norm overlaps; what is often perceived as observance of laws is
actually observance of social norms. Obedience/observance of law is or has been a social
norm.
- Laws are only ―norms of decisions‖ but the ―norms of conduct‖ may be, in fact, often they are,
different from the norms of decisions. He propounded the concept of ―living law‖ for the norms
of decisions.
- The state plays a role but only a subsidiary one. Other norms are custom, morality, and
practices and groups of association.
- Real source of law – not statutes/reported cases but the activities of society itself.
- There is a ―living law‖ underlying the formal rules of the legal system and it is the task of the
judge and jurist to integrate these two types of law. Positive/formal law is a manifestation of
the living law. Formal laws are the accommodation of ‗living law‘ into formal rules.
- There will always be an inevitable gap between the norms of formal law and those of actual
behaviour.
- How to find living law? By observing the practice by the people.
a) By judicial decisions – which are only evidentiary
b) By modern business documents against which judicial decisions need be checked
c) By observation of people, - by living among them and noting their behaviour.
- Great emphasis is placed on fact-studies as against to analytical jurisprudence, in exploring
the real foundation of legal rules, their scope and meaning and potential development.
- The difference between ‗living law‘ and ‗formal law‘: social psychology – some type of rules
evoke different feelings than others.
- There might be more than one ―living law‖ in pluralistic and heterogeneous societies but
Ehrlich believed that living law should rank in the order of priority in different claims and
demands made upon the law by different people. The legislator/jurist, in adjusting the formal
law to match the living law, should balance these demands.
- ―What is it that gives weight to the interests that are to be balanced? Manifestly, it is not the
balancing jurist, writer or teacher, judge or legislator, but society itself… Justice does not
proceed from the individual but arises in society…” – Freeman
- Thus, he minimises the place of legislation as a formative factor in law but more than that, he
emphasises how law is distilled out of the interplay of social force – there is much through this
viewpoint can hardly be denied.
- He recognised that a legal system has an impetus of its own; a professional tradition which
may operate for good or ill, and accordingly stressed the need for lawyers and judges to
understand the social foundations of legal rules and thereby develop them.
- By insisting the fact that law was not a unique phenomenon, he enabled us to attain a better
grasp of those large spheres of activity which are becoming increasingly widespread in the
modern state, where autonomous associations apply private ―legal systems‖ of their own
almost independently of the ordinary legal process of the courts (e.g. disciplinary hearings)
- So… “Those who are responsible for the development of the legal order must appreciate the
inner order of society”. There is an interaction that can be seen between legal institutions and
social institutions in this theory. ‗Lawyers‘ are urged to mould the law in the books according
to living law. We need to remember that the function of formal law is to give effect to the
customs/values/norms/mores or society and not abstract or natural principles.
6.2.1 CRITICISM
- He might be criticised for failing to appreciate the significant influence that state law has on
the shaping and development of living law. Associations are not completely free to generate
spontaneous living law as their actions always take place under the shadow of the law. State
organisation has been playing an ever increasing part in the regulation of social life.
- Deprived formal law of any creative activity and gave it too much of an appearance of trailing
in the wake of social developments.
- He neglected a criterion which legal norms could be distinguished from other norms operative
in social life – According to Felix Cohen (American Realist), law merges with religion, ethical
custom, morality, decorum, tact, fashion and etiquette.
- Failed to emphasise the mutual interaction of the norms of decisions and norms of behaviour,
thought he distinction is important.
- He also belittled the primary role of legislation in creating new law.
- He failed to realise that a grasp of underlying social phenomena may not in itself point the
way to appropriate legislative or judicial solutions. The legal process may be invoked as in
itself as educative factor.
- To urge to study of the laws in the context of society is proper and beneficial but it is feared
that it may lead to the death of jurisprudence as a subject. (But it may not be true since
jurisprudence will be in demand even if sociological studies gain ground).
6.3 ROSCOE POUND

- Got a degree in biology then studied law.

- He borrowed heavily from other thinkers amongst whom probably Jhering occupies a central
position.
- His botanical knowledge was attributed for his propensity in classifying legal materials.
- He is concerned primarily with the effects of law upon society and only to a lesser extent with
questions about the social determination of law.
6.3.1 BACKGROUND
- There was very rapid social change in the USA and with the great growth came problems,
tensions and conflicts. The country came to have a strong and increasingly centralised state
and administrative machinery.
6.3.2 SOCIOLOGICAL JURISPRUDENCE AND THE SOCIOLOGY OF LAW
- He distinguished between sociological jurisprudence and sociology of law – former concerns

with the practical (‗law in action‘), the latter concerns with the theoretical problems (‗law in
books‘)
- Pound‘s view of society – consensus > conflict. Pound views law a adjusting and reconciling
conflicting interests – an instrument which controls interests according to the requirements of
the social order. But there is no doubt that for Pound, law represents the consciousness of the
whole society. He sees law as some ―brooding omni-presence in the sky‖ operating outside of
particular interests.
- Pound is describing the society in the consensus model of society where the society is
homogenous, static and cohesive, one with values and traditions as compared to the conflict
model of society where the society values of conflict and the law‘s purpose is to impose
dominant interest (mainly Marxist where the society has classes and causes economic
conflict – law in capitalist dominance)
- His theory is that law embodies certain interests which society thinks necessary to protect by
law. Law serves the interests which are to the ultimate benefit of society.
- “Law is… a value consensus, representing the shared values of the society and adjusting
conflicts and reconciling interests to match with the consensus”
- Law has an important role in the maintenance of social integration  so it is law that has to
change/adapt/modify according to the society order
- Every social system embodies a number of interests – not all interests are taken care of by
law. Some are taken care of by religion, aesthetics, etc.
- Therefore, he says in order to determine the scope and subject-matter of the system, the
following five things are required.
1) Preparation of an inventory of interests, classify them;
2) Selection of the interests which should be legally recognised; Demarcation of the limits
whereby laws might secure the interests so selected;
3) Demarcation of the limits of securing the interests so selected;
4) Consideration of the means whereby laws might secure the interests when these have
been acknowledged and delimited;
5) Evolution of the principles of evaluation of interests
- Pound‘s classification of various interests is as follows:
1) Individual interests – defined as claims or demands or desires involved in and looked at
from the standpoint of the individual life immediately as such- asserted in title to the
individual life.
a) Personality interests
b) Domestic relations
c) Interests of substance
2) Public interests, i.e. the claims of the state – claims or demands or desires asserted by
individuals involved in and looked at from the standpoint of political life.
a) Interests of the state as a juristic person
b) Claims of the politically organised society as a corporation to property acquired and
held for corporate purposes.
3) Interest of the state as a guardian of social interest – claims, demands or desires involved
in the social life of a civilised society and asserted in title to that life.
a) Social interest in the security of social institutions
b) Social interest in the general security
- Interests should be weighed on the same plane, that is, translate the same on the same
plane. The extent to which an interest can be given an effect depends upon the texture of the
legal institutes.
- Texture of legal institutes:
1) Rules which are precepts attaching definite consequences to the definite factual
situations
2) Principles which are authoritative points of departure for legal reasoning in cases not
covered by rules
3) Conceptions to which types or classes of transactions can be referred.
4) Doctrines which embody rules, principles and conceptions with regard to a particular
situation. Used to persuade judge in favour of a point of view. (e.g. doctrine of separation
of powers in constitutional law – used to keep three wings of the government separate
from each other)
5) Standards – prescribing the limits of permissible conduct which are to be applied
according to the circumstances of the case.
- Jural postulates – presuppositions of legal reasoning – they involve what men must be able to
assume in a civilised society. He gives examples of jural postulates:
1) No intentional aggression by others (people)
2) Beneficial control over what they acquire under the existing social and economic order.
3) Good faith in dealings
4) Due care not to injure
5) Control over dangerous activities.
- Propositions … that the law reflects shared needs without which members of society could
not coexist. Pound's jural postulates are often linked to the idea that the law can be used to
engineer the social structure to ensure certain kinds of outcomes. In capitalist societies, for
example, the law of theft protects property rights.
- ‗lawyers‘ must also take heed of jural postulates in coming their decision  particularly when
it is not possible to accommodate the interests or no objective way of resolving disputes.
6.3.3 SOCIAL ENGINEERING
- Pound‘s central and all dominant concept is that of social engineering.

- A lawyer should be able to mould the clay of law to suit the purpose in hand. In the process of
interpretation, a lawyer has to make adjustments in the law to suit the needs of the society,
- Purpose of social engineering – enable the lawyer to think in terms of changing or moulding
the law.
- Pound suggests that lawyers and judges should abandon their rigid attitude and adapt law to
accommodate changes so that they can help to achieve the maximum satisfaction of wants
with the minimum friction and waste.
- Interests – claims, wants, desires or expectations which people demand.
- A lawyer/judge should weigh the interests (classified earlier) and balance conflicting and
clashing interests and then strike a happy balance.
6.3.4 WEIGHING AND BALANCING
- How to weigh or balance conflicting interests? By converting such interests into a form to
bring them into the same level – one plane.
- Pound wants us to look at every interest from the point of view of the society.
- In case of conflict, we look at the conflicting interests from the point of view of the individual,
of the state and of the society.
- The idea of jural postulates and texture of the institutes are all auxiliary to the task of weighing
and balancing.
- His theory is geared to meeting the needs of the time and his frame of work prepares the
judge or the advocate to look at law as a tool rather than an end in itself.
Law
Step 1: Identify the conflicting interest

Social Step 2: Determine the plane of interest - is it at
Engineering individual – public or social?
Step 3: Bring the interests to one plane (put them on
equal pans)
Balancing conflicting
interest
6.3.5 CRITICISM
1) Social engineering – society is complex and fluid: the variable are not certain and the
outcome of a social engineering ‗project‘ may not be tangible/measurable/ determinable/ be
sure of achievement.
Counter argument: Pounds idea is not about lawyers engaging in complex social engineering;
They were to consider the flexible and dynamic social reality – avoid rigid and static legalism.
2) It is very difficult to decide which one come first: Social claim then law or law then social claim
(e.g. welfare rights existed as posited by various welfare legislations)
Counter argument: Decision to legislate often reflect social need/social demands. But it is
inevitable that legislation create a recognition/acknowledgement of already pre-existing
claims.
3) How do lawyers actually decide between conflicting interests? Pound does not provide
methods of prioritising interests.
Counter argument: Getting an exact method of selecting between conflicting interests is not
the point of Pound‘s idea. Any method of prioritisation or measurement needs to be neutral
and un-arbitrary (which can be quite difficult). The whole activity is, practically a question of
choice not balancing between interests. Pound‘s aim is to make a socially informed
decision/choice. (aided by empirical evidence @ social facts).
4) Pounds theory is centred on the Judiciary (note the idea of Jural Postulates) but practically,
judicial changes cannot effectively ensure actual social changes unless it is supported by
other social structure (executives, Civil Society)harmonising social interest?: the task is to BIG
for judges.
5) Jural postulates  not immediately determinable as it can be fickle. They change with time
and social flux (e.g. free market society/laissez faire   welfare society). They are based
on assumptions but whose assumptions? Judges? Legislators (also politicians!) Are lawyers
aware of social matters?
CHAPTER 7: AMERICAN LEGAL REALISM

7.0 INTRODUCTION
- American realists were concerned with enlarging knowledge empirically and to relate it to the
solution of the practical problems of man in society at the present day.
- One of the central aims of the realist movement is to discover how the courts actually achieve
their decisions.
- The movement de-emphasises the role of established rules or ‗law in books‘, and instead
place their focus on other factors that contribute to the decision of the court. This approach is
called ‗law in action‘. This approach then expanded towards finding ways to predict the
decisions of the courts in future cases.
- The American Realist takes the view that the discovery of ‗non-legal factors in influencing
judges‘ decisions will be valuable in understanding what law really is.
- “… what justifies the notion that they together formed a „school‟ is the existence of a common
and all-pervading characteristic , namely a determination to look at the law with open eyes, to
look, not at the old books, but at the law as it actually operated in everyday practice…
[Riddall, J. G. Jurisprudence 2nd ed. London:Oxford (1999) pp.222-223]
th
- In the beginning of the 20 century, there was a blatant discrepancy between the form of law
and its theoretical logic and sociological reality;
th
- In the mid-20 century, there has been a rise of the trade unions and the economic influence
of the states;
- Pragmatism has also greatly influenced realism. Pragmatism regards practical consequences
as the criterion of value and truth;
- The realist movement is a combination of pragmatism and sociological approaches;
- In America, the doctrine of judicial review and the due process clause were the centre of the
legal system in courts and were therefore, realism‘s concentration of attention on the judicial
process.
- Realism? - Relating to the real world, the world as it actually operates. Connotes ‗practical‘,
‗down to earth‘, ‗pragmatic‘. Intellectually testing theories by measuring them against what is
observed in the world, and dismissing theories that fail to match the
recorded facts
- ALR – is it a single idea or connected ideas about law?
- …what justifies the notion that they together formed a “school‟ is the existence of a
common and all-pervading characteristic , namely a determination to look at the law
with open eyes, to look, not at the old books, but at the law as it actually operated in
everyday practice…
(Riddall, J. G. Jurisprudence 2nd ed. ( London : Oxford. 1999) p222-223)
- It is not a single view, there was never any corpus of agreed opinion, no central
creed, no consensus.
7.1 OLIVER WENDELL HOLMES

- Mr. Justice Holmes said that life of law is experience and not logic.
- Law – prediction of what courts will decide.
- Legal history was to be studied primarily as a first step towards a deliberate reconstruction of
the worth of rules developed historically.
- “It is revolting to have no better reason for a rule than that so it was laid down by Henry IV”
- Law must be strictly distinguished from morals – there is a paradox. He asserts that policy
governed legal development especially in the form of the inarticulate convictions of those
engaged in creating law.
- Litigation and professional lawyers are placed in the centre of the legal system.
- There are inarticulate major premises which may underlie the decisions of the courts.
7.1.1 THE BAD MAN LAW
- ―Take the fundamental question, what constitutes the law… you will find some text writers
telling you that it is something different from what is decided by the courts of Massachusetts
or in England, that it is a system of reason, that it is a deduction from principles of Ethics or
admitted actions, or what not, which may or may not coincide with the decisions. But if we
take the view of our friend, the bad man, we shall find out that he does not care two straws for
the action or deduction, but that he does want to know what Massachusetts or English courts
are likely to do in fact, I am much of his mind. The prophecies of what the courts will do in fact
and nothing more pretentious are what I mean by the law”
- What is law? Higher principles – link to moral/ethical values (natural law). Positivist view? Law
as it is posited at law in the books.
- The bad man – who is he? A litigant in a civil action, an accused in criminal proceedings,
- He is only interested in the outcome of his case.
- „The law does not have any teeth until the courts decide something. Indeed, until there is a
decision, in way there isn‟t any law. All we can do is predict’ (emphasis added) – Holmes
- “All law as judge-made law. Statutes are not law by virtue of their enactment. They only
become law when applied by a decision of the courts. Only then does a legislative enactment
spring to life and acquire actual force. Legislation is no more than a source of law : it is the
courts that „put life into the dead words of the statutes.”
(J C Gray the nature and sources of law (2nd edition) p125)
7.2 JEROME FRANK
- Realists may be divided into two categories:

1) Rule sceptics – Those who doubt that rules decide cases. (Llewellyn)
2) Fact sceptics – They doubt that the facts play any role in the decisions.
- The fact sceptics have their primary interest in trial courts whereas rule sceptics have
interests in appellate courts.
- Frank – facts are not objective. They are what the judge thinks they are and what he thinks
they are depending on what law he hears and sees as the witness testify – which may not be,
and often is the same as what another judge would hear and see.
- Facts may affect the actual decision as to the law since courts often ―wrench: the law in order
to make it fit what they conceive to be the merits of the case, not always with adequate regard
to the wider implications of their decisions.
- He felt to disclose the reality of court-houses because without public knowledge of the
realities of court-house doings, essential reform of those doings will soon arrive.
- Acquired social value judgments, idiosyncratic learnings of the mind, unconscious sympathy
for an antipathy to some witnesses are some of the factors he lists.
- The textbook approach which treats law as no more than a collection of abstract rules is
grossly misleading and that much of legal uncertainty is inherent and not due to deliberate
mystification.
- It is basic legal myth to think that law can be permanent and fixed. Since law deals with
human affairs, it is absurd to realise even approximate certainty and predictability in law.
- But Frank adds little to his contentions by a curious affection for an implausible application of
psycho-analysis, whereby he seeks to attribute the search for legal certainty to the need for a
Father-figure, the infallible judge, nor by his reliance on the principle of indeterminacy in
modern physics as showing the impossibility of attaining certainty in the legal sphere.
- Why do people seek certainty in law? Frank - ―Because, we reply, they have not yet
relinquished the childish need for an authoritative father and unconsciously have tried to find
in the law a substitute for those attributes of firmness, sureness, certainty and infallibility
ascribed in childhood to the father.
- Man is always actuated with biases. It is almost impossible to free oneself from biases. “If
however, bias and partiality be defined to mean the total absence of preconceptions in the
mind of the judge, then no one has ever had a fair trial and no one will. The human mind,
even at infancy, is no blank piece of paper. We are born with predisposition, and the process
of education, formal and informal, creates attitudes in all men which affect them in judging
situations, attitude which precede reasoning in particular instances and which, therefore, by
definitions are prejudices”
- Frank says that whatever produces judge‘s hunches makes the law. So the judge‘s motives,
background and character must be studied. One should study the judge‘s opinions to find the
real motivating reasons behind decisions.
7.2.1 CRITICISM
1) They are justified in taking the position that there are other factors which influence the judges
but to say that rules are not laws and that what the courts do is law is unrealistic. After all on
many cases, the advocate advises on the basis of the statute though there may not be any
case, In fact, cases go to court at a later stage.
2) Too much pre-occupation with hunches of individual judges undervalued the common
agreement on certain yardsticks of evaluation that judges do observe.
3) To say that the actual decision alone becomes law necessarily means that it forthwith ceases
to be law for the future, since it will be in its turn interpreted in future cases. Law then never is,
but is always about to be. It is realised only when embodied in a judgment, and in being
realised expires. This means that law is never in existence. Is it another invisible hand?
According to Gray, until a court decided a case, the rules are only probable law.
4) The view of law as what judges do is possible in a system where judges have active roles to
play and where they are independent and not where their discretion is strictly controlled.
7.3 KARL LLEWELLYN (1893-1962)
- Paper rules – statues and precedents

- Real rules – courts actually operate these rules which have to be discovered or brought to
light.
- Llewellyn claimed that ―paper rules‖ misdescribe the reasoning processes judges in fact adopt
in reaching their decision. Ratio decidendi provided mere ―paper justifications.‖
- Thus, the ―real rules‖ which Llewellyn proposed to find out were to lay bare foundations of
judicial decisions. These ―real rules‖ will be predictions of court results.
- ―Paper rules‖ fail as predictors of future court actions – there are mainly two reasons:
i) Legal rules are framed in such a way that there is usually a certain amount of leeway
for future application. Thus, a lawyer is at a loss to predict how the judge will decide a
case.
ii) Judges may play down, if not disregard, the rules. Thus, accurate prediction cannot
be done on the basis of ―paper rules.‖
7.3.1 REALISM – A TECHNOLOGY
- Llewellyn claimed that his version of realism was not a philosophy but a technology.
- ―Realism was never a philosophy… No. What realism was, and is, is a method, nothing more,
and the only tenet involved is that the method is a good one. ―See it fresh‖, ―see it as it works‖
– that was to be the foundation of any solid work, to any and… that method is eternal. That is
point 1… It applies to anything. That is point 2. But the method implies nothing about whither
to go. That is point 3. Realism is not a philosophy, but a technology. That is why it is eternal.
The fresh look is always the fresh hope. The fresh enquiry into results is also the needed
check-up‖
7.3.2 DEFINITION OF LAW
- “This doing something about disputes, this doing of it reasonably, is the business of law. And
the people who have the doing in charge, whether they be judges, sheriffs or clerks or jailers
or lawyers, are officials of the law. What these officials do about disputes is, to my mind the
law itself”
- Behavioural definition of law that lays emphasis on the behaviour of law officials, especially of
judges‖
- Craftsmanship in law includes not only the various skills of lawyers, but also traditions (i.e.
training, etc.) and the way in which legal craftsman use their skills determines their ―style‖.
- A judge is guided by his situation sense.
- Llewellyn believed that judicial discovery of an immanent law would be essential to grand
style.
7.3.3 LAW AS AN INSTITUTION
- Institution – organised activity which is built around doing a job or a ―cluster‖ of jobs.
- In the case of a major institution, its ―job-cluster‖ is fundamental to the continuance of the
society or group in which it operates.
- A functioning institution is rooted in the life of the community. Llewellyn‘s interest is in how
law-jobs are carried out.
- Much of Llewellyn‘s interest has been centred upon what he calls the ways in which in various
types of community the ―law-jobs‖ are actually carried out.
- ―Law-jobs‖ – Llewellyn‘s way of describing the basic functions of the law, which, for him, are
two-fold; ―to make group survival possible,‖ but additionally, to ―quest‖ for justice, efficiency
and a richer life.
- He identifies 5 ―law jobs‖:
i) Prevent disruptive conflicts within the community. Law helps maintain a
peaceful, orderly society, and contribute to this stability by providing a means of
resolving disputes.
ii) Resolve disputes between members of the community. Property law facilitates
business activities, while laws limiting the powers of government help ensure some
individual freedom.
iii) Accommodate changes in the circumstances of the community and its
members. Law can also be a means of accomplishing social change, as for example
in the prohibition of racial discrimination on the one hand and the establishment of
national health and social security systems on the other.
iv) Recognise the authority structure of the community, and
v) Establish procedural rules for performing other tasks
- In law, there are elaborated techniques, such as the use of precedent and ideology which is
implicit, and has far-reaching values and ideals which form an immensely influential part of
the institution as a whole.
- Apart from all these, there is also a host of practices, some very flexible, and others quite
rigid, which determine how certain things within the legal system may or may not be done. All
such matters control in various ways the activities of what Llewellyn calls the ―men-of-law‖.
- An institution has jobs to do, and the important thing is to see that these jobs are well and
effectively carried out. A functioning institution is something which is rooted in the life of the
community and has to be constantly tested by the needs of that community; and moreover,
the results of its working have to be open to inquiry.
7.3.4 THE COMMON LAW TRADITIONS
- Predictability in case law is attributed to the general craft of decision making.

- There are a cluster of factors for steadying influence (i.e. law-conditioned officials, doctrinal
techniques, limiting of issues and the adversary arguments of counsel)
- He does not show how an assessment can be made regarding each of the ―Period styles.‖
7.3.5 GRAND STYLE
- It is based on appeal to reason and does not involve a slavish following of precedent
- It was rooted in judicial candour
- If a precedent were to conflict with a social need, then a judge would distinguish the
precedent or reject it openly justifying it by reference to the needs of his society.
7.3.6 FORMAL STYLE
- Rules of law decide cases. Policy is for the legislature, not for the courts.
- This approach is authoritarian, formal and logical.
th
- Movement between the two periods: In the early part of the 19 century, grand style was
th
characteristic of the creative period. In the latter half of the 19 century, there was a rapid
movement towards Formal style. In the recent past, again there was a leaning towards Grand
Style.
- The essence is which style would be suitable for the society. Situation-sense in grand style is
not clear.
- Llewellyn favours the grand style.
- He confines himself to appellate courts.
- He says ―Do not look to what was held but look to what was bothering and helping the court‖
- The movement has ended up as an appeal to a common-sense approach to law.
7.3.7 COMMON POINTS OF REALISTS
- Llewellyn listed the following 9 points of the realist movement:

1) There is a conception of law in flux, of moving law, and of judicial creation of law;
2) Law is a means to social ends and not as an end in itself so that any part needs
constantly to be examined for its purpose, and for its effect, and to be judged in the light
of both and of their relation to each other;
3) Society changes faster than law and so there is a constant need to examine how law
meets contemporary social problems;
4) There has to be a temporary divorce of ―is‖ and ―ought‖ for purposes of study. This does
not mean that the ideas of justice and values are to be expelled altogether, but they are to
be put on one side while investigating what the law is and how It works. By this divorce,
both the processes will be improved. The realists are vitally interested in the aims and
ends of the law and it was with a desire to improve law that the realist movement was
started. Adequate reform has to be preceded by an examination of how the law operates
in actual practice. Such an investigation will be defective if the ideas of justice are also
mixed up during the investigation of facts;
5) The realists distrust the sufficiency of legal rules and concepts as descriptive of what
courts do;
6) The realists do not have trust in the traditional theory that the rules of law are the principal
factors in deciding cases. They have drawn attention to many other in influences which
play a decisive role. It is absurd to define law solely in terms of legal rules;
7) The realists believed in studying the law in narrower categories than has been the
practice in the past. They feel that the part of the distortion produced by viewing the law in
terms of legal rules is that rules cover hosts of dissimilar situations where in practice
utterly different considerations apply;
8) The realists insist on the evaluations of any part of the law in terms of its effects and on
the worthwhileness of trying to find these effects;
9) There must be a sustained and programmatic attack on the problems of the law along the
lines indicated above.
7.4 ILLUSIVE OR EXTRA-LEGAL FACTORS
- “A judge‟s breakfast on the day will influence his decision at the court.
- “Those prejudices when they are racial, religious, political, or economic may sometimes be
surmised by other. But there are some hidden, unconscious biases of trial judges or jurors –
such as for example, plus or minus reactions to women, or unmarried women, or red-haired
women, or brunettes, or men with deep voices or high itched voices ,or fidgety man, or men
who wear thick eyeglasses , or those who have pronounced gestures or nervous tics –
biases of which no one can be aware” - Jerome Frank (Law and Modern Mind)
- These prejudices could affect the credibility accorded to the accounts of witnesses and so
affect what is decided in the minds of the judges and jury members. The significance of these
factors as recognised as being equally important in the judgments of the higher appellate
courts.
- Muller v State of Oregon – It is hard to think that judge‘s personal views could not fail to
influence the decisions reached. The attitude of individual judges is also believed to influence
the outcome of cases.
7.5 CRITICISM ON REALISM
7.5.1 GENERAL CRITICISM
1) Realists lay an over-emphasis on the judge.

What about the lawmakers of the legislation? Often, advice is given on the basis of the
legislation. Legislation has got an educative value.
2) Realists pun an over-emphasis on uncertainty.
Goodhart points out the danger of juristic pessimism on the part o the students, leading to
confusion rather than a rational approach to legal problems.
- No guarantee of justice except the personality if the judges.
- Frank – decisions be unknowable by way of prediction. His code formula Rules x Facts =
Decisions.
- Dias – ―hunch‖ can operate only within the framework of the rules. Preoccupations with the
hunches of individual judges tend to obscure the fact that judges do agree by and large on
certain yardsticks of evaluation.
- ―Realists succeeded in filling but a minute fraction of the picture of judicial action by looking
only at personal and environmental factors; the pressure of rules and other personal factors
play a more decisive part.‖
7.5.2 HART’S CRITICISM
1) Hart says that judges have got a discretion to decide but we cannot brush aside the fact
that there is a general framework of rules within which they work.
2) The existence of a court implies the existence of rules in the absence of which there
would be nothing to distinguish the decision of a private person from that of a court.
3) Realists ignore the fact that law is based on social practice. It embodies accepted legal
standards. It is true that at some places law has an open texture that can be interpreted in
more than one way by judges but still rules play their part.
4) It is possible that, in a given society, judges might always first reach their decisions
intuitively or by ‗hunches‘, and then pick up the authorities of rules which suit their
judgments. But this is not the general practice in the judicial world. If judges depart widely
from the rules, the will invite criticism from the legal community, And the legislature may
meet Such a situation by amending the rules to remind the judges that they must not so
depart from them.
7.6 IMPLICATION OF REALISM
- Sociological – examine the operation of law as an aspect of social organisation through the
usage of statistics and computers.
- Jurimetrics – the desire to make law and judges‘ decisions predictable – developed
tools/method to study the legal processes by scientific means, through the analysis of
statistics. It is a scientific investigation of legal problems. It is meaningful since they are
capable of being investigated and ultimately answered – certainty.
- The next step forward in the long path of man‟s progress form jurisprudence (which is mere
speculation about law) to jurimetrics – which is the scientific investigation of legal problems. In
the field of social control (which is law) we must at least begin to use the same approach and
the same methods that have enabled us to progress towards greater knowledge and control
in every other field.
(L Loevinger – Jurimetrics – The Next Step Forward (1949) 33 Minn LR 455)
- the use of computer programs to undertake empirical analyses of judicial decisions in order to
ascertain patterns of consistency and regularity, in ordr to help with the prediction of
decisions
(see F.Kort. Quantitaive analysis of fact patterns in cases and their impact on judicial
decision‟ (196506) 70 Harv L Rev 1595 )
7.6.1 IMPLICATION ON JUDICIAL BEHAVIOURALISM
- There is a desire for predictability: se non-legal methods to improve the predictability of

judicial decision making.
- Sociological, psychological, etc.
- Once the attitude of judges are established along these lines, it is possible to produce a
predictive model bcs „judges are expected to behave consistently with their beliefs and the
decision of the court is a liner function of the decisions of the individual members‟.
G. Schubert Mathematical Prediction of Judicial Behaviour (1964) pp445-8 (in Lloyds
introduction to jurisprudence)
- Factors that could influence a judge‟s decisions [Riddal 230-31]
a) social background
b) cultural and intellectual interests
c) relationship in childhood with his parents
d) relationship with wife and children
e) political sympathies
f) religious views
g) financial interests
h) psychological make up
i) frame of mind on the trial day..
7.7 CRITICAL ASSESSMENT
- There is a need to ensure selection of judges to avoid inherent prejudicial behaviour or

susceptibility to prejudicial viewpoints
- The latter outcome of realists – jurimetrics, behaviouralism and CLS – it is relevant now
- Law in action – it demands a way of understanding law beyond statutes and law reports.
CHAPTER 8: CRITICAL LEGAL STUDIES
8.0 INTRODUCTION
- Movement that gained momentum during the 70s in the USA – regarded as a descendant of
ALR.
- Began as an intellectual movement that focuses on analysing and questioning theories,
structures and function of law.
- The movement was rooted in human rights activism that was critical of American military
activity in Vietnam and domestic civil right issues in the 60s -70s America. The critical
perspective on the use of power by the then government had led to a perception that there is
a strong correlation between law and the exercise of political power.
- More radical than realism though both are sceptical of orthodoxy.
- CLS point to the gap between paper rights and real rights.
- The role is law is to show that the particular social order is inevitable. They criticise the legal
education as a training for hierarchy.
- Critical legal theorists also emphasise on the role of lawyers to bring out a change in the ways
people think about the law.
- The Realists ere firmly within the camp of liberalism; the CLS movement was more radical an
attempt to escape the ―crippling choice‖ between liberalism and Marxism.
- Similar to the Realists, they reject formalism but the Realists saw legal reasoning as
autonomous or distinct and CLS scholars certainly reject the enterprise of presenting a value-
free model of law.
- Both also do not offer any specific or ascertainable theory of law. Both approaches, however,
stress on the need for law to be understood in actual social context an not confined to positive
law alone.
- Main distinction between critical and conventional legal theories is that the former rejects the
distinction between legal reasoning and political debate. To critical legal thought, there is no
distinctive mode of legal reasoning; law is politics. Law exists only as an ideology.
- CLS cultivates the idea that law is not characteristically ‗neutral‘ or ‗objective‘ – whether in
terms of value or application/operation. Instead they declare law is politics.
- Law is politics? It is not neutral or value free. Law is used or can function as an instrument to
maintain hierarchy structure of domination in any society.
- CLS give a central place to the judicial function in the understanding of the law.
- They deny the rational determinacy of legal reasoning. “Law is simply is politics, dressed in
different garb.”
- CLS perspectives on law also overlap with that of the Marxist – both see law as often being
fashioned and enforced in order to strengthen the powerful group or class in a society. But, in
contrast CLS does not identify any specific type of groupings and argues that laws in any
society would over time become a manifestation of belief and prejudice of those in power;
laws will be used to sustain the legitimacy of power and values of this group to the extent that
law becomes a fundamental instrument to oppress others and reinforce their authority.
8.1 CRITICISM OF LIBERALISM

- Roberto Unger attacks liberalism – it results into a moral predicament of the individual and the
political predicament of modern society. It distorts people‘s moral, intellectual and spiritual life.
Therefore, he launches a total criticism.
- He uncovers the ―deep structure‖ of liberalism which consists of 6 principles:
1) Reason and desire
2) Arbitrary desire
3) Analysis
4) Rules and values
5) Subjective value and
6) Individualism
- He points out antinomies existing between reason and desire, between rules and values. Two
solutions to the antinomies of liberalism:
1) A political solution to bring about a transformation of the conditions of social life so that
domination is done away with because it produces the experience of the contingency and
arbitrariness of values.
2) A theoretical revolution is needed to create a system of thought based on the flourishing
human nature.
8.2 IMPORTANCE OF CLS AS A THEORY OF LAW
- Importance is that it provides a critical instrument to evaluate substantive laws as well as legal
practices.
- Law is understood as more than just rules of a society.
- Law needed to be critically analysed in terms of its relationship to authority/power; this factor
or dimension influences the shape and operation of law.
- CLS sees the need to understand the condition and development of law in a particular
society‘s perception to make changes especially in the system and practice of law so that
there will be no group who are able to use law for their own interest.
8.3 CLS TARGETS OF CRITICISM
A) CRITICISM OF FORMALISM
I) THE QUESTION OF THE EXISTENCE OF A FORM OF REASONING THAT IS
PARTICULAR TO LAW
- CLS questions the existence of a form of reasoning in legal method that could ever achieve
the true legal answer (compare to Dworkin‘s ‗One right answer‘ thesis)
- They believe that judgments that are reached through judicial reasoning are arbitrary.
- The difficulties of determining, right from the beginning, legal pricniples that judges would
apply has provided an opportunity for judges to make arbitrary decisions.
- Thus, CLS questions the truth of the claim that law is free from the influence of and values
held by judges.
II) THE QUESTION OF CONFLICT OF PRINCIPLES IN THE APPLICATION OF

LAWS
- CLS is of the opinion that the application of laws would always involve a clash of principles
that require resolution by judges.
- E.g. – in determining whether a DF is guilty of a crime, a judge will encounter 2 approaches.
First, the individual ‗free will‘ approach; a person is completely responsible for his conduct.
Second, an approach that perceives individual behaviour as a consequence of external
influence and pressure.
- However, CLS proponents argue that the judges inclination between the two approaches will
likely be influenced by various factors including his prejudices.
III) CONFLICT BETWEEN RULES AND PRINCIPLES
- According to CLS, there is a conflict in jurisprudence and application of laws between those
who prioritised rules and those who prioritised principles or standards.
- Those who prioritise rules – such as the legal positivists – believe in certainty in law. Laws,
according to this group, must be capable of specifically informing the consequence of a
conduct. (Example: A breach contract will result in the defendant having to pay damages)
- Another side of the argument view laws as statements of principles and standards. They want
laws to be flexible and adaptable to changing conditions, not bound by rigid rules and enabled
to achieve their objective.
B) EXTERNAL INFLUENCE AND JUDGES NEUTRALITY

- In general, CLS rejects the claim that legal reasoning can be right and transparent because
judges actually have to perform a process of selection among conflicting approaches.
- Instead, judges decisions are political in nature – they are influenced, whether consciously or
not, by
a) individual self interest
b) the interest of the class that they belong to
- Consequently, judges‘ reasoning and arguments would only provide legitimacy to the interest
that they hold up to. The belief that judges are neutral is naive and a fiction created to
strengthen their institutional position.
- In this sense, according to CLS, laws are used to maintain and consolidate pre-existing power
structure – whether political, economics or social power – and sustain the domination of one
class over other classes.
C) LAW AND ‘LEGITIMATION’

- CLS criticises laws and legal processes that are used to give what is termed as ‗legitimation‘
– the legitimisation of specific values supposedly held by society.
- Law is perceived as a tool of ‗reification‘ (to bring into physical existence something that does
not actually exist or without substance) and later, provide justifications for maintaining that
matter or value.
- Consequently, through laws, society uncritically accepts matters that are perceived to be
concrete or real, simply because that matter of value is based on law. CLS argued that,
through this manner, law can be turned into instruments to sustain the domination of one
class over the others.
- Laws are used to categorise people as ‗insane‘, ‗poor‘, ‗children‘, ‗criminal‘ and so on. It is
also used to categorised society into layers of classes or groupings – ‗employees-employers‘,
‗victim-offender‘, ‗husband-wife‘. The use of law in this manner causes social imbalance. The
labels are arbitrary and will in due course, become rigid and eventually prevent changes that
could be beneficial to that society.
D) CRITICISM OF THE TRADITION OF LIBERAL LEGALISM

- CLS views are united in their frustration and dissatisfaction with liberal legalism.
- Law is found to be less neutral and objective as claimed by the liberals.
- Legal system and practice are misused as facade to conceal contradiction in the law.
- Liberal legal thinkers presented law as coherent and fair, but in actual fact it is arbitrary,
blatantly unfair and susceptible to external factors.
Liberalism includes:
i) Formalism – process by which judges purport through interpretation of law to reach

decisions which are not political in nature but neutral.
ii) Individualism
iii) Values are relatives
iv) Human actions are free willed
v) Law can be viewed as an instrument of social change by securing legal rights
CLS includes:
i) Judges‘ decisions are not neutral but give effect to values, the supposed interpretive
method being a sham
ii) Collectivism
iii) Human actions tend to be determined by what has gone before
iv) Law acts as an impediment to change
Comparison with:
i) Positivism – Positivists like Hart and Kelsen concluded that the outcome of litigation was
decided by application of rules, and the law is neutral, CSL rejected this.
ii) Natural law – CSL only share one area of NL which is sympathy. Natural lawyer
maintains at the most fundamental level, values are capable through human reason be
ascertained. CSL believed there are indeed universal maxims that govern human
relationship, practices and law. CSL claimed that the present arrangement of society is
wrong due to some objective standard.
8.4 CLS AND FEMINIST LEGAL THEORIES
- CLS has a significant influence in the development of feminist legal theories. Feminist jurists
question the treatment of their legal system towards women. They also argue that legal
perception is not in favour of female realities; that the legal system is traditionally male-
oriented.
- CLS essentially contributed to feminist ideas on law by providing a method that shows how
male orientation or domination of law has resulted in women being place in a marginalized,
disadvantaged and subordinate position. For example, male domination in law is criticised for
prioritising ownership and individual interest in contrast to the female reality that gives
prominence to interaction and cooperation.
8.5 CRITICISM OF CLS
- A common question directed at CSL is whether it offers a coherent and clear theory.
- Critics of CLS were of the opinion that CLS has put forward a number of approaches that
enable the critical analysis of law and legal system in a liberal society; but without tendering
any specific theory of its own.
- Instead, CLS attitude of criticising nearly all aspects of law (institution, profession, education
as well as legal theories) has caused CLS to be labelled as ‗outsider jurisprudence‘.
- From another angle, CLS may be seen as offering an intellectual agenda in jurisprudence and
theory of law that seeks to achieve ‗outcomes‘ that are important for the well-being of a liberal
society.
- Indeed, the CLS critical approach is seen as belonging to the liberal intellectual tradition of
critical and analytical attitude toward established values and assumptions.

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NURLAILA GHANI (LEB140108)

CHAPTER 1: NATURAL LAW

1.0 INTRODUCTION TO NATURAL LAW

1.1 CLASSICAL GREECE AND ROME THEORY

- Student of Plato but did not follow Plato‘s theory of forms.

THE IDEA OF MANKIND AS PLAYERS IN A COSMIC DRAMA

- Stoicism passed over to and influenced Roman thought.

1.1.5 ST. THOMAS AQUINAS

THOMISTIC CONCEPTION OF THE STATE

1.2 SOCIAL CONTRACT

1.2.2 THOMAS HOBBES (1588-1679)

- Main works – De Cive (1643) and Leviathan (1651)

THE SOCIAL CONTRACT

LAW OF NATURE ARE NOT BINDING

LIBERTY AND AUTHORITY

SOVEREIGN AND THE CHURCH

- The Church has no power over the sovereign.

1.2.3 JOHN LOCKE (1632 – 1704)

- To protect the individual.

1.2.4 JEAN JACQUES ROUSSEAU (1712 – 1778)

- He uses social contract as a hypothetical construction of reason, no as an historical fact.

1.3 DECLINE OF NATURAL LAW

DAVID HUME (1711 – 1776)

- Hume criticised natural law.

1.5 LON L. FULLER (1902)

- Regarded as a leading natural law lawyer.

1.6 JOHN FINNIS

2) Requirement of practical reasonableness

REQUIREMENTS OF PRACCTICAL REASONABLENESS

CHAPTER 2: LEGAL POSITIVISM

2.0 INTRODUCTION TO LEGAL POSITIVISM

- Also known as analytical jurisprudence.

2.1 JEREMY BENTHAM: CONSEQUENTIALIST

iv) It relies upon the use of sanctions.

- Command with some degree of authority.

2.2 JOHN AUSTIN – COMMAND THEORY OF LAW

Laws properly so called = Laws improperly so called

- A law is a command by a sovereign backed by law. It is a command given to a bulk of a given

2.3 BENTHAM V AUSTIN

2.4 CRITICISM AGAINST AUSTIN

State as the Foundation of Law

H.L.A. Hart’s Criticisms on Austin

CHAPTER 3: NEO-POSITIVISM - HLA HART

3.0 INTRODUCTION & RECAP: HART’S CRITICISM TO AUSTIN’S MODEL

3.1 OUTLINE OF HART’S JURISPRUDENCE

3.2 SOCIAL HABITS AND SOCIAL RULES

3.3 INTERNAL AND EXTERNAL ASPECT OF LAW

3.4 PRIMARY AND SECONDARY RULES

- Primary rules - Concern actions involving physical movement or changes. Rules of

3.5 PENUMBRA OF SOCIETY

3.6 MINIMUM CONTENT OF NATURAL LAW – RELATIONSHIP BETWEEN MORALITY AND

CHAPTER 4: PURE THEORY OF LAW – HANS KELSEN

4.0 INTRODUCTION TO KELSEN’S PURE THEORY OF LAW

- ‗Norm‘ (German) = standard/requirement.

4.2.1 THE GRUNDNORM (BASIC NORM)

4.2.2 HIERARCHY OF NORMS

Basic norm Norms Sub-norms

4.2.3 VALIDITY AND EFFICACY

- For a norm to be valid, the following conditions must be fulfilled:

4.3 COERCION AND SANCTION

4.4 FUNCTION OF THE JUDGE

4.6 INTERNATIONAL LAW

4.7 PUBLIC AND PRIVATE LAW