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    Key Issues, Jurisprudence1 - 102453

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    Nalumansi Aisha

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    Omony Paul Key Issues in Jrspradence 6 [Anin-depihdcoone on Jrprodence Problems Rerenence Beyarars,E, Soca Founditon of Law: Philosophical Analysis, LDC Publishers ‘Kampala 200 ‘Confort Maurice, Dslectical Materialm Vo, Matriasm andthe Dialectical Method. Emmet R, Lain t Pilsphise, Longman, London 1968. ‘nis Jon, Natal Law and Nawal Rights, Claredon Press, Oxford 2000. Hare HLLA, The Cont of Lan, Oxford Universi Pres, New York 1989 Hare H.LA,Esay in Jorispradence and Philsophy, 1989, Gis, Lucan & Sayer The Pltcal Economy of Law A Third World Reader, (OUR, Dati, 1987 ‘i Golding Matin, Philsopy of Lau, Prentice-Hall Press, New Jeney 1975, Kelen Hans, lamoaion th Pes of Lepl Thor, Claredon Press, New York 192, ‘Mao Tse Tang, Where Do Correct ideas Come From? Five Esys on Philosophy, FLE Peking 197 ‘Marx, Karl Preface toa Contribution tothe Critique of Political Economy. Popper K,The Povey of Hsorom, Routledge & Kegan Paul 1957 ‘Reid L.A, Introduction to Philosophy, Heinemann, London 1962. Rasell Bertrand, Pblos of Philp, Oxord University Press, Oxford 1957. Wah, Marin, A Hisry of Philsaphy, Godiey Chapman, London 1985 : CHAPTER TWO THEORIES OF LAW 2.1 Narurat Law THEORY [Natur law; propounds that crue lw i right reson in agreement with rature-Giew (106 ~ 43 BC). That law is nivers, eternal nd unchanging and that there i only one source of lw and the enforce of this eternal and unchanging law is God. Lay is a rule whereby man is induced to actor testaned from acting. Although there have been 2 numberof natural la theoriss bot in ancient and ‘modern times, the fllowing principles are common to all of them; |) Thathere are bute les gan which the vay flaw shal be toed 1) That thre exis an order which i raborl ad whch can be known by man fi) That man can become svar ofthe univer, ternal apd comprehen ‘aloes she haere ature and understands corey And hat Boa these {ale man may drive appropriate ale-eatemen “Tha tht witch is good is im accordance with nature and that which se comary to maar. 1) Thies lo which aks moral vay is wrong and unjust, | | | ») 2.1.1 Ancient/Classical Natural Law “The ancient natura lw theory islargly sociated with S! Thomas Agi (1225- 1274), the theory didnot however start with him: Greek (Arto) and Roman (Cicer) scholars had carier on formolated simi principles. ‘Other catholic scholars like St Auustine (354-430), dew (560-636), ond ‘Graton (1140) also preceded him. Aquinas teaching that were stow in his book ‘the summa theoegic (1266) were founded on some bf dese erie eacings, i 2 thore of Aristode who ditinguished berween wht was "aly “conventionally just” ‘Aquinas (1225 ~ 1274) in his book summa thas ls down the major Principles of his idea of natural lw 2s follows: ‘Omony: Pal Key less in Jrsprodence is ‘An in-depth dco on asprence Problems 1) God. the higher good and fm i all shins een Canny om dive ero and mans laws ac ordinances of aa nosy hn ho the ce ofeommmunity and promulgated forthe ‘onmon god 1) He exept wat four; lx ami none 1 se) Mh Lex ae (eral) wich God tins rection of things eset cagh hs Disne wil and ite not constrained by imei Se ecu tht th ow sere ou rough ight reson and nt to {iow iis ote without deton per et Lex vn (vin lois God rect revelation of his will eg as inthe seripeures. “This revelation sto provide guidance for man’ reason allowing his mature to be perfected by Disine grace Lexa which ress fom man’ participation in the working of cosmic law owing t is being a reasonable rete. “The possion of God given reson enables man to share in divine reason ‘nelfand he may dere Sm ta mater inclination to search for good and avoid el hme man oh pion of le nwa robles hac aie int res Thi ads ean, whch mst confor 1 reread 2) Thc bl of pc ame y man er jit xc wih eon nat don wih on Tsoi ow See Pticaloroat ER Cae east ee Sb ony men a eee reer my ppd och i promang nya na eee sin rm Soop moc Th: he rons Th te ad fi dpe upon eet easier i inch eras eon sedi rr oes eed ead ith heres of on Sian ye ariance in any pariculr spec with eal Sees ‘tinny pa psec gp ee sie views Aqui propound in his cone of matty were latgely ison « oa ‘omony Pal Theories of aw Influenced by the doctrines of the Catholc Church and Chiisig. He Aherefore comes 34 no surprie that he advances spte/tirachy tht Subjogtes rar’ to eternal ae 2.1.2. Modern Natural Law (18th - 20th Century) 18th Century eee ee eae etcetera! ee ee ec ‘The 18th century thinkers also rejected the social contacarian explanations ofthe society and state Thisincuded Immanuel Kant,David Hume,C. ‘Montesquieu, A. Smith and Edmond Burke However some of these thinkers did not totally eject natu lw principles, bur they moliied or redefined them. 4. Immanuel Kant (1724-1804); Immanuel Kant’ argument was that morality tose fom feedom and that when Jn sin conformity with moc, one cn be forced 0 obey the ow witout forfeiing eedom, His dpa fom old maul av wa his argument dt feedom means ) rn ‘which meant no subjetion to any determination other than one sl Contrary to Agi he oppo the wil f Goa he iat sure law His ejection ofthe old ara w was confirmed by ther writes nh eh century £2. David Hume; x David Hume saw 2 modem theory of natural lw an ecasiely empl ‘erion ofthe fandanentl principles of natural aw science of moray an without any need of eligi hypothesis. cae they ae od and univer ecied ue oats A Ta 2 society and the human species but prior t0 even primitive cil cites had such rules Omony J Paul ‘Key less in Surisprdence ‘a in-depihdscoune on Jrspradence Problems 3. Edmond Burke (1729-1797) He merely used the term natural law to tefer to principles of truth, justice ind Hberry snd to oppose arbitrary power. He used natural law to legitimize ‘aptal isinstatios, practices, culture and ideologies. Infact he identified fans of commerce as laws of mature an consequently 2s las of God, “To him, compesive self regulating market economy was a necestary part of natal onder of the univer and to him if 2 man could claim nothing cconingtothe ules of commerce andthe principles ofjutce;he pases out ofthe deparment and comes within the jrisdicton of mere. In that province, the ‘agitate is nothing a all todo is interference is violation ofthe propery ‘which his office protec He futher argued tat twas pecnicious/ ei to disc the natural course things and thatthe wage reason wns par of “natural chain of subordination’ Burke abo argued tht people should acepe this bordnation because eis ‘ial proportions of etermal jie. He therefore opposed the egalitarian (e902 righs and opporunises) propaganda ofthe French revolutionaries because if 2ccepted, would undermine the whole natural and therefore jus order. is thoughts ad lot in common with Wiliam Blackstone who appealed aural law 0 sanctify English common la. His theories a il inluenial within conservative poli thought totiy./ tthe UK Comersve pana te US Repub ee 19th century; Pe ew ty ed en Cry cy cohen po fi a Posi, Those who sought an understanding of wciey ofthe watonshi ee i eee ere Prorat an arial Cover ae eet ae ene a aera ee Stocrctetan fe oe cares ees then mort Pra face Tred fleec NOMI “The 19th Century therefore dd not sce mach development in nae Le Ie was instead dominated by other theories Natu lw wes however ered the 2th Cenry 20th Century: “There have been sveral NAMB law writers fom the beginning ofthe 2h (Century to date and thse inclade; Lon Faller HLLA Hart and Join Fins 1. Lon Faller (1902-1978) He rejected Christan doctrines of Natur lw as wells the 17th C and 18 (Craton doctrines of natu ighs, He saw one aim common to all school, namely that of dacovering socal onder wich will enable men t9 ata 2 satfactory if in common, Hi main conmbution 9 legal theory was in undentanding the procedural aspects of legal sysezn To him alga aspect war parpoeflenterprse subjecting human conduct to governance of ales He therefore argued chit whatever igs subsantive purposes, rain procedural purpoic had to be acknowledged as goals if dhe system were £ (ualify a a system of law rather than 3 set of incusons relying oo force and aibieary power His coneribuion may be sen a insing on procedural comiteny anf predictability ofthe law, It is an aspect of the concept of the rule of le ‘therefore argued that postive Iw and other man made laws required proceducy the following in onder to be valid: 3) That they be sulicienly gener 1) Publicly promulged. 2) Safficieniy prospective (mast ook afr ahead possieh: @)Clearand ineligible 9) Free of commadicons, 1) Suficiety conant though time so dat pea accordingly (precedend. 1 Notreque the mpoustle. a ) he adminced ina way aficemty comer A eople can abide by them. orks he ano wong 0, ut mony Pal ey bons Deprence 2 Aa nid Rowe rpradence Pratl deed hse py 2 comeing the ne moray of le Fee ST ae er op ein cat ical RRSTRIE Sot aand ome a of tie above reguremcam or ELSE Sometteimeemafenermenttornes Sag However Flr concept of iter meeity of lw lacks content. His evoked Ine mi be osfil soe drating les bur not for derermining. Be ccerem of de lm The w becase bionic. 2 aumber of regimes have fat toons oppecere and need! ws which may however pas his peccdoa inne the Nan reme Apartheid ang colonial laws andlaws of many san 2 ALABen: eam be acted dit abbsosh Heer Lie! Adsphas Hart was 3 normacive pommel firm he aempe eo mar posts ideas and snl sea. He ahaoved thee ideas in anempt to aes the reductionist waieios = duscl Asamn iepl posersm and theological Thomist Nawes Lin acing wo Gnd a mile poscon berween the two extreme Sc Har and Fam acerped ts mary nati and poscvam. On bit ‘pet be mak dee mace peepommone 2 Thies samen BT pean mera comply spare ‘That ow comm of ie aes Fema snd scony “oc le” ba seereace to nal rubs Hart aped thc deve are cera subsanive rules ‘stack are esconal human bem ar w lve contmoouly together in dose on, . He does nce sate those waver of minim hora rues but rather tks shew fico of" human condioon” which lad tothe eximence of hove rues and thse rls ae 2 2 rst ofthe need for homan survival and they include Homa scent Ssprocmaee pie Lmecd semen (Concern for other peoples were neets above one ‘Omor:}Paat 4. Limited source, 5. Lined undersanding and ten of il “hac duc to these fact there aries natural neces for certain minimum forms ‘or protection for persons, property and promises (contac) hence eed for lew. Hare sow no necessary i Between law and mont. 3. Bln Finis Finis in his book “nar Ine and marual righs” red to revive and rate sntual lw concepts. According fo Fons, natural wis che st of principles of| practical resonablenes in ordering human life and human community ; Im his cas he identified seven (7) basic goals ot basic values which every resonable prion must ater for purposes of aman snarl. And they include, 9) Life which mast be protected 8) Knowledge or he preference of uth ovr ichood |) Plpc by which e mean love forthe ra 5) Aches experience forthe appreciation of bey. 1) Sovably or endip or acne he ake oF oc fends eter people ©) Pact resomblenes ie. apphing one’ ineligence or knowedge t2 fp cectely del with oil poten 5 Reigon or interest inthe origin ofthe coum oder o unter By religion, Finis meant interest in the origin and meaning or purpose of hie which ifexpeessd cis way would even be aecepeable tothe atheiss. Te shouldbe observed however that dhe views and asumpsons of both Hart and Finnis muy be challenged becase they may not all sand actual or practical 2.1.3 Ancient and Modern Natural Law Compared ‘The views Aquinas propounds in his concepe of natal lw were lugely induced by the coment he wo writing tee, win te stony of he (Catholic Church. Christian doctrines were to influence ham e the prance oF unigy/anivereaty/sopremacy of the lw was formed gaint te bck drop of the Christan doctrine of one God, one Church ad tat one Church being im one law But Chriianity was not che only inven on Again he wa ah ‘Ono. Pau Key Iss in rispdence An in-depth dour on Jurpradence Problems influenced by Greek/Roman/Clasial ideas a to the origins of divine law and priate lay. medivalio and the notion of common good such that wis geared foward this goal in society. Since the time of Aquinas there have emerged 2. number of modern jana who have added thei views t the Natural aw concept Among thee Ae aque Rowse, Jon Lack, who were social contract theorists 2s well as freoscbolsics like Ally Dubin, Rommen, Radbrach and Finis and others Hike Tmmante Kant David Hume, Edmund Burke, Lon Fuller and HLA Hart Natural Law hus therefore undergone evolution and changed times over. “The wes contract theories have differed from Aquinas onthe question of the engin af thee theoretical conception, Wile Aquinas saw law a part of the (Guineplin for mankind the sal contract theorists argued that Iw was 53 oat of man’s ansiion fom sate of nature to society They argued tha people ‘Rtered into a social contact with thir ruler under which che ruler was bound ‘Sigaranee certain rights to the ruled, these wee the precusion of democratic fpvemment ‘Akinough Neo scholastic wasan attempt to further develop Aquinas ides, ot “all the neoacholsae. jure agreed with Aquinas’ theology. They owever derived some general pincpls fom him and these include; ) Thc min ade lew does nt const te oe deton of han comic ‘whch oo 0 apply 8 see “Tho here canbe dcovered les and principle ha aply eal persons in all “Phan ever prinple of conc ext ouside man made rls of lw rl andere tough the exec of son Thar thoe pa : i Je through the exercise of reazon should be the 0) That thewe pines discern ure ofall parca rf conduct ‘Phat cee principles can poise sn vel standard by say be jaded —) ‘save for these general principles: modem theorists have difered fom Aquinas ic he rales fw seine atc to re-enact Aquinas four tier clasification of the fhe that good law ought ro be just he bore no | eas the neo-scholtic Ihrer Mach as Agia. 20 etd natal righ tat der ins repositons. Theorie of Law 2s “The views ofthe modern scholrs and those of Aquinas vary because ofthe fact dt they propounded thei views at diferent mes in which the conditions ae futon tat influenced ther teachings were sini dierent. “The modern theorists for instance write im the backdtop of signcane developments in history like dhe renaissance, che reformation he enlightenment deer er which had an effect on the dealstouook of Thoms natural Lv These selopmens fivoured instead a more scientific analysis of phenomena 3 In concusion the modern natural ew theorists ae only similar to Aquinas is so fir an hey maintain the above general principles, 24 Aquinas and Hart compared “The views of HLA Hart and those of Thomas Aquinas ca be distinguished on the following lines: Fin, Aquinas wat 4 natural aw theorse while Hart was a poitvist whose views were only tclevant in as frat he attempted to marry natural law and posi theories in search for a middle ground beeween the ewo extreme Positions The fc ha the ewo came from different school of thought explains 2 umber of diferencs betwen them as this determined the perspective in which they explined their teachings ‘The teachings of Aguinss were rather generalized compared to thse of Hare Aquinas merely advances general principles. the elevation of the human reaon to dcern God’ purpose) ater than detailed day co dy rales. nthe oer Hart aan 2 more etal scheme of ie eps Bren hd of egal sytem as. system ofsocal rule and derived fom soci) Aquinas gives a hierarchy of laws with human law subordinate fo natural, vine and eternal I Hatin his advancement ofthe tea of egal yer alls ‘of primary and secondary rules that make tp He ao argues that wis internal ie does have to depend on any external force Fe therefore aera that iw docu erie fo mon pic nor doe ss om higher beng Hae cen neces bnk beeen Iw and mora Hearger dha tis inno sense a meena rth ht as reproduce oF E ‘Omens. Pat Key Ise in urge » An -deph dacoone on uiradence Problems “eran demands of moracy though in fc they ave offen done so, “The qwo theorss ako difer on how they see the purpose of the lv. To “Aqui te objec ofthe hw nt aches common good by doing what ight a God atte fllow our natural neinations to do good. Hart ees the rrp ofthe kw 1 being ve of preventing society ffom becoming 2 suicide re The Law i med a ensuring the survival of man/socety that is wy he Sng thatthe lel order embodies tsi prohibitions “The wo chon ides can ako be diinguished along the lines ofthe factors shat nfiuenced their ideas. As nated above Aquinas was a catholic scholar and this twas refected in is ideas He aempted to advance the catholic doctrine in whieh law was viewed aan apt of God plan for mankind. Harton the other hand jected the influence of enteral factors onthe Law’ it did not therefore derive from any tide souree “The othe ator that may have influenced thee ideas sche epoch in which ‘hey were wring; guise wrote i feudal mes and this as well reflected in tis ideas a his theory elected the exiting social relations where the chutch fad a dominant and priveged! postion, Harton the other hand was writing {inthe 2c century and was lw ideslisic in hit analysis given the scientific ‘advancement dat had ake place. Despite the disnction berneen Aquinas and Har their caching had some similis a discused below Aguinas argues that natural aw cannot be limited by aie and space The rules of posi ae indispensable obverations, whieh apply to every human being who ves in society. ‘Concept of survival: to Har its a primary human goal. To Aquinas every substance seeks its own preservation according tos ature and self preseation twone ofthe God given inclinations bil it the nature of man, Lappe xo reson to Aquinas natu laws ae founded on reason, which crests duty of obedience if they aust and resonable To Hart legislation of | judge trough their employment ofthe faculty of weazon elk ws wien we are ‘moral to bey and when we a not an ae Oe ee ee (mony. Pal “Theorie of Law 2 Qn sursival. though both acknowicdge it they arrive at diferent conchsons, “To Hart ithe major character of humanity to Agunas tthe ee cof human consideration. cs (On morality Hart though arguing that kw and morals ae concep separable acknowledges tha some ws ae moray based. Supremacy of the Iw, one of the principles that influenced Aguinass teachings the principle of supremacy ofthe law that taught that all persons including rulers were under the dominion of the law. The positivist Har abo preached the supremacy of dhe law at was, rejected Austin idea ofthe lw 2 the command of the sovereign and instead subjected even the sovereign othe law 21.8 Justification for the simila HLA Hart and Aquinas ies and differences between, “The divergence inthe views ofthe two scolar is atributable to the fllowing ctor ‘Their understanding of the bw was different, Hart was influenced by tiv thinking, and he was abo an empiricist while Aquinas was 3 asonsit Jatucnced by natural thinking and theology, ‘Theis background abo influenced their teachings; Aquinas wat a cabobe fret and atempred to sjtemize knowledge om the bas of Cathe docine. ‘Chetan belic6, therefore influenced hit teaching, as i mani Some of ‘the ideas he enunciated eg, his chssiieation of law subjgating human lw £0 divine law: Hart onthe other hand was influenced by universal eologies Bie profesor his teachings were more tended to prcticablity Hirt was influenced by the emerging capitaism, which explain why he had | ‘matric approach or tance hi argent od preion of POP. On the ocr hand Aguas writs at the ame when the chara ln sere inflental cus his advancement of wes ht wee 8 vou fe son ofthe cure ‘The dimes they wrote in abo influcared thei teaching Hrs Sri the 20th century a ime when mag scholar 2 lt of he enighenaent aero Omony Prat ey tates rps | niet dacourse on Joaprdence Probe, sane a wfomaion movements were wing ay ot nal sans erat pene» enie one, On the oer hand ra ee ns ands infeed by the cg 9prital/ Mego veal phenomena hat he Har sg to eet ‘Har wav abo prt of the antialpostvst school, Many of his ideas arose fio the emprcsen of Bentham and Avs “The sinidarties between Hart and Aquinas despite one being a positivist and the oe aul la theo ae atbutble to to facto te tps a a2 ek ofthe nara Te col. os ESSN one Nal ow br ter came up to Feed ‘Sher eh ew ey ‘Second the fic tht Hatin propounding his theory proceeded on the rem af finding» idle ground berweenpestvsm and natural av. 2.4.6. Natural Law Theory as @ means of legitimizing the sats w [Naural Iw bas ale over the year and has thus undergone a numberof hangs The quowion wheter natural law has Been wed to justify the stamas {ue best dak with approche ight ofthe varios stage through which the cheory has evled The evalua ofthe theory canbe eased under chese broad categoricn = 4) Ancien nara what iad ec nd mtr uo 1) The modern atl lw dt inode de ow retin ad 2h cenry woot “The cates notions of nara lw dita fr bck the casa era of Greek and ‘Ronan ization, The Roman orator Ciceo (who was largely inflenced by ‘Arstode) in his book De Republi defines te lw right esa in agicemcot th mate ‘Ths laws of universal application ae everastng:t summons to duty by commands and avers wrong doing by its prohibitions Thi lw wat not repel ‘Omony Pal “Theorie of Law » -able in pre or entirely and man could not un away fom ts obligations That God was the one promulgatr of this lw and its enforcing judge. “The csi view of natural aw ae will be realized later was agely dines from the subsequent theories that fllowed it I for instance had concept of acral rights and neither did the Greek and Romans subjugate posigve lw to natural was subsequent jurists have done. “This could be atributed to the democratic clement of chese eal city ates and the fice tha al ctzens were considered equa: chs the need for a aw that ‘wa of universal application to ll Iean therefore be argued chat even a this age ‘atral w was being sed to justify dhe stats quo. ‘The medical catholic theologian, St Thomas Aquinas (1224-1274) was vo later on develop on the views of Cicero to give the medieval concept of Natural bw. Generally Aquinas proposed ahierarchy of laws that placed Natural aw above numa law He sought to advance the systemizaion of catholic doctrine in which Jaw was viewed as an aspect of God plan for mankind, His lasifeation of lw and his ideas reflected the feudal socal hierarchy, theology and the church. Ie ‘hus was used to promoce dhe interest ofthe church and the Feudal system then _revaling and predominating al chinking, dhs preserving the onde, In ancient and medieval times, Natural law was ewentlly 2 religous or superarurl concept wherest in modctn times it has esentaly been 4 valable roar the powers that be for jij the existing lw of the social and «economic systems embodied in tha aw ‘This was because by regarding postive Iw (lex humana) a Being bed 0 3 higher law onined by God or divine or natural reaon, he acu kl stem acquires 2 sancti it would not otherwise poses 2.1.8 ‘The Modern Natural Laws 4m che reformation period (between the medical and enlightenment perio the ‘outlook of natural Iw changed somewhat with an meee emphasis on the individual and feewils wells the human ibety and rection ofthe ancient/ ‘medical concept of collective / univers society in four ofthe nation se Omomy..Paat aes in Jide An in-depth can open Pers Reformation caused 2 clsh berween the Catholic Church and the Ps th he cf cig gto Be moe wea The Cte (Chorch bunched counter eformaton tha fvoured maintenance ofthe views of “Aquinas has Goring maintenance ofthe sa gun xcs we tat te re of anergy rer cold ot be biotic comes whe be Thoia sored ht tre ond Be Bp tcl lv ch rcs perpetual Thy angie ht ioe hot aide rd pose tie lw win very ce sing feet reli al Daag ped tts Hs Thee liso Hage eso ror el mr wet ugh vee Wy of ral ae ded Gan the mrs oN oa ad pre the st uo Sts wernt tence nd el fr the shoe ‘cri cba the ne Hob wed he soil contac hear im he gu ur of cats el of a, ‘The Neoscholic/ 2h cemury ideas of natural of fundamental human "igh aho ars from the desi ofthe ring bourgeciie in America beginning 7, ial the idea of thes righ was the protection of private property: Onc ofthe key advocates forthe protection of property was Locke Whe this spears ‘ot to bein support ofthe satus quot mt be realized that by now feuds brat were no lngee the prvaling jem in Europe, captain had arisen 2 the dominant spiem of governance Therefore thse cal for protection of Property were in eence mean wo maintain this new was oo. There have been severdl Natal Law thinker writen fom the beginning of the 2th Century to dt and they include Lon Faller HLA Hoge and John Finis These schol rely adrnecd he concept of race rps (Greer rights human rig, democratic gorrance te) which wenrcene a apne thas supped the emerge cpt tre by ming te Hom 08 ny Nl ih» Nee aay coe fa aS th the Amerian Dechraton of Right and the eater French Revolution of ‘Omony J Pa Theories of aw ” tn general the Natural aw theory is ely n our ofthe st uo but thins no etc ue forthe whole theory Ther hn heen ave pion ‘of the Natural a theorivs of the socal contac school. Rowseay and hte dont gre with the views of Gros and Hobbes, they instead we ew theory te advance revolutionary ides and chllenge the wat que Locke advanced the idea of natural and individual rights thatthe ruler must guarantee. Lock developed the concept of tus between the red and rule ad Rouen that of general will Where such tus was beached by dhe rale/ or he ‘ented having the general will, he could be overthrow, In conclusion dherefore, it may be righty sid that Natural aw regan of time, has generally supported the satus quo except for the 17eh Century and 8th Century theoriss who wed Natu iw a a evolutionary concept aginst feudalism. The other writers fom Cicero through Aquinas to the 2h Century auras, all have ued natural lw to suppor the tata qu. 2.19 Natural Law Theory and its relevance in Africa today Natural aw has seen many seholrs and thus evolved over the yeas changing {fom its int manifestation in the chisel er through to its modern outlook + These changes noewithtanding, the theory his endured and i all of some relevance at dscusted below Because the theory seeks universality and commonality in human lw ales an estitutionsacros the globe, there i sill a modicum of relevance if this ‘elated fo the development of international stndard(aw) under the apices of sited Nations in fields like human rights, eevironmentl lw ee which any ‘Affcan counties hve ratified. ‘Natural law emphasizes the need for a legal system to have moral goals and "gp lies Though the dentin of mor ar om pie Pc er pope it al ern Aa Thi cw et ‘that a number of Aftican countries sil retain in thei legal sytem moralistic rl 6 the penalization of as Hke homosexual Bei Ber jThe Natural Law concept of natu individ i abo of rane {eas can comtinent given the apn of te oe ant <®untres, for example in Uganda the 195 costo il ene. Key less in arigpdence x Ani-depthdisoure a arspeence Proens ee eae in we im Africa toxkiy- making @ democratic stem of governance widely i theory of wleance. Nevertheless, the exitence of dictatorships an untie lectons voter down this ewan, Mor so, Nanal lw asumes oqaiy of people ryan of ls, care and sate or raion dilerences, Uganda like most Aican counties iit ‘Consinon, dlls discrimination on the grounds of tribe, age, sex gener snd religion. Furthermore, the emergence of the Afican Union and the recent ‘evilizaton ofthe East Afican Community ate gear tveans achieving unity and equa ofthe Afican people beyond wate and national difeences, 2.1.10 Natural law and Positivism Compared ass: refers oa spt f philosophy hated on things that can be scent ‘red rither thn ideas The bse premise of poxtvu is in the derivation of {Pest mcenng thatthe aw something posted o id down. THE past law school dhs anges that te aw i aw enacted by the sovereign and backed by sneions The smalr proponens of the posvist idea of Lnw are, Join Aun, ‘Hote Lil Adis Har, Gaon Bran a Hans Kel Ther ae ve see ements tha are dicernable fom thei tahings os otal bee Leia 3) The ie oo beng come emmaing fesse poet. Si) Theda ow mo enbody vacua soeeaee #0) Theseputon oft fom moore ee Tacs mt Biba coe he [Naural law: propounds that erue bw ‘The marl aw theory in genetal se ‘av institutions and vale, ' right reason in agreement with nature. 4 univenalty and consmonaliy in human ‘The mujor proponents of the Naru law theory ar, ier, $e Thomas ‘avis. Lon Fler, Immmanel Kant John Finis, David me and mn Omen Pant Theories of Law » Buske among others The flowin Ma the key prepxnon ofthe Nana hear {)_Thutthereae abe acs gin wh 4) That ther exits an once which ee {Tha oan can bevome ate fhe unr etal cone salute ctr nts an unr core Aad thee alos ma sy derive appropriate aetna ‘That. dat which s goal sn accontnce with natura hat whch w el That alin which aks orl aii ic wrong and nj, thay fb hold betel al andi can fe kno by an ‘There exist namor of dienes betwen the postvis and Natural wahoo and these lend credence to the view thatthe two school ane diamestclh, ‘opposed. The major ditferences are dacwsed below Bios the Navural lw theory jana hasan dealin and is metaphysical othe other hand positign-isngey cul an empirical. The mars as dcalts who taught that there i a higher knowledge which mu eaonoe understand "Natural nis god given anda distateof reson whereas the pois sae law as man-made and coukd nor betdiced other than fm the phyial work. J Natwal aw basicaly dea with what the lw ought tobe the “ugh ofthe ‘nw yee postive lw deal with what the Li the “sof te ne Acconting to narra law theorist if the lw is agains dhe mata ond then isnot lw but the postviss on their part angue that lw ot om the ‘overcgn and backed by ston is not lw {Natural la empszes the principles of moray an justice, Thy eye {hat the lw conform to mora. To the past docan¥ mae sng 2 the ‘uw is eetve. ts unjust o namoral characte elevate i rts, aw wa i lad conti a source is nor known. This description wok! best fi cory bw the ‘content. Yet to the poss, customary lw mot hw i Foz a sed by cours ot ls ‘Central tothe Natu aw schoo she conten a aot ies Oman} Pat ey ses in Jurys By An inedeth donne on Jura Pablns ot geared othe common good ofthe people The posits who only seck a ee eecive jc hn amen sen and only lice Ga above 1 Naas prsppone the coy of ‘them all as. aed ‘On the other hand the positivists put the sovereign gee above he piel ior bec 1 Under Nalin he aut is loo Gad which man can choos 0 Se i mr poste are hare Lv command of Sr ath npr ht poe puna who vise fo obey tng scoot ak te common. Pin sho sia of is ander aa iw sang ith vine aE nw dy hoax Om the eer ad he port sent cnaion of te weer d they subonnse Meoneme bw rw : # Natal aw a compared t positivism may be salto be both ideals and socal yet egal pov seul, materialistic nd empiricist innate + Bentham, x porcv ngus that law mut be sought the cours and he satus In tht he dines the whole concept of Natural law and inalienable sighs as nonsensical To him, ight ae the ris of re la. ‘The long-lived absolute monarch basicly influenced posivin, while ‘natural lw was influenced by the age of enlightenment, he reformation, the French revolution and the American Decaraton of rights of man 2 In the Natural lw school obedience is chive by the existence of social contract while under posvsm tis achieved by threat of sanctions. [Naural ais closely elated thology ie positive aw is indepen theology and materialistic in outlook. an a Despite the existence ofthese differences, the two theories of aw neverthe= Jes hve silts This i because positivism elf ses fom Natu ln hes sro to awe defects in the naturalist understanding fla and hus there ex some elements that ae common to both school and some ofthese are discussed lows, Theor Law s SS Se 7 th he pst and Natl Lash age one cnet Sipe ge lth in They oly Suge mio who tivo ace {Coda forthe osc tthe eg sng dn pun oy cer % Aioth schools preserve the concept of mori Akbough the post attempt to divorce Iw fom moral some of them hive acknowlaiged» mer {epect of dhe Iw for example Kelien, anged tha though Lie did not lan on mony 2 lw maybe morally evaluated without reference to i vay Har also ated that there areas that ae mealy backed, bat al ht thi 96 evens tae ofall the ws the poi supesior over the political inferios sno dierent fom be Natural supreme Ine giver and that is hw iuniverally ol hth God i ee ree tee eee eee Siang Tee coup of cima sce to th shook, Sse nar tech ocd teamed God On lee nl ii rely the oc aaa be ned owed toe Wt command ‘of.the soueser ‘Aguinsscmunciated the mtu view when he argued fr the essa of # (hamicssaleeatho ida dein asnalaace with themalsofzanur However the qu adocates for this as. Jong. as it did_noc_couse irther ater: This ‘wher insta comenge sui thos of Kelcn who jai she osu ‘sueznment The ogh-dseryeneehe i that them achat oan nae ©, Customs is recognized inthe maura school and abo in dessins “chon s long a3 put Sow in sate sagas In concn it ca ighly aged athe post and al bw hes cline sinc cahodee buts fi. : ‘eoween them eaueld Boa fila tn ane css sassy orem eer ee tac atett Key Issues in Jurisprudence a “An in-depth dscourve on Juraprdence Problems ‘REFERENCES Loyd: Chapter 3 Dias: Chapter 21 eer: De Repu Arto: Niomathean Eth “Thomas Aquinas: Snme Test Lon Faller: The Moai of Law John Finns The Nal Law and Natal Rights FredhickJuko: Nana Law Revs and Human Righs LLM Thess MUK, 1979 Inman! Kant: Citgo Pu Reson HLA Hare-The Coney of Law (1961) ayn Jagd ad Psp. Omen). Paul “Theories of Law » 2.2 Social Contract THEORY OF Law 2.2.1 Introduction; In socialsciences, sci contrat isa name given to a group of ovedapping and feted concepts and traditions in politcal theory. Like other aggreyations in ilosonhy and inellectul history, it has at its center an extremely simple concept ode. That model isa the collectivity: ts an agseement hetwesn, ‘heindividuals sho make itup.- ‘The model suggests chat itis proper to.ask whether the agreement was ox eee eee ete cela as Pe ‘withdraw -sither beeause he-ne longer ageess or because the conditions, which esnceniod she smattering sia The nec coins hor ele dc hase scoala the soot oFshis theory isthe idea thadcconding to law, ao snan-can be subjected ‘othe poiicl power of another without his own consent. Gnd hat obedience ‘uuhosity is egitimaized by voluntary submision.to those in authority. tumor proponents were Thomas Hobe ohn Locke and jacques Rouseau tee PoP ss ies cet They i hal Mcienlass-and civil socicty egies about from a Dsl Thong ejector tos. paid ema e aban nd conststionalam, ‘heir eacings. ‘They all presuppose asta of nature (primitive stats) chat pusseded ciel ‘wsinty and the law that governs the state of nature is dh laweof natu La here, ‘Wyte Kiphis poverning this state-of aature known-as-aatural rights ‘To the jacia. contact theorists, the state nana can be applied the 26 -oChunan sopra socetytt sen a-u thot aod on where ete no eon anc esl ‘Tagrsing to sonic 3 oc ac sn 5-H AS fli thts To he oc ot OT Se hee-ciHws, you havea ste of tre io posse cl fore only proper tate Sei herent ‘Onmony:), Paul a Key lcs in Jrispdence o an wept dncoune Janene Prblens : social contact theory abo suggests hat de nvidual shoul be though ene an inert he val ob sn el ton eh bce wat eh Wh cen tea oce The uct estas uponc 1 ng pole oper io oe apna sobs cn an oral ts be bing a i tt carer eet be rovewed perpetually The annus anh pop a hr tees a pp te conta 2.2.2 ‘Thomas Hobbes (17th century) 4 Hides ofthe oxi com i aia is 168 wing Leviathan in which be Siow the cone bombs he pope itr and ot swe he Toplean he Tim plete bce epoory fi dhe “To Hobbs dhe rule i this not bound to take into account the interest of the people'T this extent headhaces the theory tasupport absolut an a aw emoved fm social concer nthe Hoblesin understanding of veil. comtadt ‘eople-come togther 10 fom. civil society (uncm anion) sd ents another contact so mae the risa. Unde pu ‘under punctam subject people ee 5 cetera - So while other sacia-cuntct scars ant cnt the powers of * lee, Hobbes rejects such des. He ares hat hte nan conta Een one oaeer ete aereaser rar tests the low was aka zene ftom ot indemaen yc concer bindan/ mer basal powers to handle the people. ashe wants The only ‘SSwhen he dies: so ins ehe leviathan without Powxis use, = ‘Om. Pa UCU LIBRARY Habis ideas were water influence Ags’ theory of posits in which acs scpatte Gos otal, This rszoning defined the character of the Ud and tury monarchies in Europe. “To Hobbes because mun sin astte of ature he cannot Ie becne be ea tou. be -becae of dis fet AKO Astse Oth seat thopeome athe ESS so thee una soutact wah jp esata They 9 0 taverns forthe people bt the ganezneataf the lean by she ethan fecthe good oth people, ‘Once you are i the Habbesian contact, there so way out-To him the best sostament is the monarchy, But if nots it should be an aristocracy. To him, ‘ysnthe cus ust obey the leviathan. Hobbes sho opines thy. man ia mate of the state, 10 he ye ta.boe onli Tht thete jpn dileence beeween goodand evil what gaa for youu fs a forme, Gondaes. oc badaes is therefore subjects, depend on thebahaldce Hobbes concept ofa wate of nature has been criticized as being ambiguous, Hiscritics have asked 2 nymber of questions like: yan is born in the Family when orshie go into a state of nature? Is eye that met cannot ive without the state? ‘ow do you teat the leviathan? Is it justaplessute or pain theory? Are we jst instinctive o ational in choice? Are we zslly ia ste of wat every ns? He has also been criticized for advocating fora police state, And ako went ‘uot had ashe portrays them toe, they hase common sense and al aot kill aushow 2.2.3 Rousseau (1712 - 1778) and John Locke: ‘These tuo sepresent the ousoide/capittie volition dot oorieathe | clue my an! uaa mer acct Fe eae iach and American revolutions and thei cua They ilk abut nat sgh abn na. Namen Sie cgi fre 2 ‘wan barn innocent am-good, rg and equ but De- . heteryorekoniy oi eon, concent mand feat nthe a a een ec” 3.58. Seandinavian Realist : ie cee tinaion oan onze ay ha) Then Bet arr philosophers whose approach othe ides of bw Lye chai eo ronan J Kv jobs anny 08s PN St ath Amr a tty cen sn i ig oe ge pe ibe ew ode gee So Fe ie ofthe role ofthe judge in determination of zal ules Sone Mow sigiticatyeey devoted emphasis to dscusion of vomewka sberct ty othe vabdty of gal norm in terms ofthe nature fis el lCUc Soe Teauirer specs] ad dis inwityons and that this Fes in the fact that Jaw procedures efecvenes and regularity preoccupied with the idea of institut fn law included not only the varibui ner in which legal “The forerunner is Hagertrom, of the Scandinavian Realist Movement. He wrote Ingunes into the Nature of Law and Moras (1983) that was tarsated into English by Prof Kae! Otivenrona. “The major thrust of Hagerstrom views may be stated as follows: 1) There x no goodness or badness in the world of aw That chese word simply represent etationalatitudes of approval and disapproval cowards certain fats Later Llewellyn would become crfsmanship nd that craftsmanship Sf lawyers, but a tradition, ethics traning and the man nen ws tei sil and determine thei se snd ssations i) The idea of law in the abstract rules bears no meaning a such and there- fore beats no empirical significance, unless and until they have been infringed and become the subject matter of 3 judicial proceeding. Even in that ese, the Bg cic even is uel and pecuaive aml ef proved In respect of judicial crafmanship, the judicial craft that results | the righe sense of reason and justice is called the Grande style and this ‘eset functional and purpose oriented. This is opposed to what he oral sil, which sexentally concerned only with the logical aplication paper rules 254 Scheme of Reckonability; Lewellyn formulated what he considered a scheme of reckonabilty of practice/decsions. He lys down 3 ws; 1) The law of compat, where the application of an appropriate rile comple with ee and ren, and hat thi increases reckon 4) The law of ncompasbiy, where the ist instance does not ext, (here _prerae le conpable with aes eon) ad therefore the gon says es ose she rae of here reckon ofthe decison Th ow fgg aon where thee sau wih ight sation scope and therefore gives the maximum reckonabiity of deci ‘The major characteristic therfo om early legal reais isis in Lundstedt Hi ew of at it snot funded on juice bat ther Bad 0 fend pes nd hat any iden oes fie ae ud ced rep tot Lndede observed the view thi, cate under a etn ul» {721 days imposed this would only support a normative or metaphysical link ‘mount of observation can establish a a physica ft. “Ta sy th ‘To sy that a person is under a duty is only feng or sentiment that he etn Ceect himself in a certain manner (comequently something que ) This subjective element the writes have Bee freed fo turn inc che re of Karl Llewellyn’s work that distinguishes! “SS eppost, neo a monstrous contradiction: an obese dU: Aepth study of judicial process and techniqu Omer ™% ey Issues in Jurisprudence O [An in-depth dscoune on Junspradence Problems Sanaa ight stem for the fvourale postion enjoyed by 2 comequence of the fncining kl machine Land een i cons aso alton or sere ince aguing hat such concep ae ony ae comcience and tha th only elite significance to be tar wanconmeson with he corecie machinery ofthe st er NED the purpose of norcing contact of punhing2 wrong 25.6 Criticisms of Legal Realism; “The realist idea of law has been criticized as not meriting being called a)

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