JURISPRUDENCE AND LEGAL THEORY

PART ONE
UNIT ONE
GENERAL CONSIDERATIONS

SECTION ONE: INTRODUCTION:

Several questions came to our mind, such as what could be the reason behind the system of laws?
Or why should there be a legal system in society? Or how did the rule of law come into effect?
Answers to these questions were given by Jurisprudence. Largely because Jurisprudence is the
study of law in theoretical and philosophical aspects. It shows us the correct way of studying the
law.
Not only that, but the study of Jurisprudence also helps one remove complications in the
understanding of legal concepts. It helps the mind in creating logic and understanding the reason
behind such concepts.
The word ‘Jurisprudence’ originates in the 1620s, in the Roman civilization. The Romans were
quite interested in finding out the meaning and nature of law. Equally, it was found out that the
Greek civilization had followed the same ideology and was trying to understand to find out the
meaning and the concept of law. Philosophers like Plato, Socrates, Aristotle, etc., have given
many references regarding the same.
With the fall of these civilizations, the Christian states emerged (see St. Augustine of Hippo, St
Thomas Aquinas, etc.).
Later, with the emergence of secular states, various theories came up proposed by John Locke,
Jean Jacque Rousseau, Blackstone, Hugo, etc, with concepts and evolution of law.
The concept of law and legal system continued to evolve in the 17th, 18th, 19th, 20th, century up to
date.

SECTION TWO: WHAT IS JURISPRUDENCE?

This section covers the Meaning, Definitions and Nature of Jurisprudence.

1. Meaning of Jurisprudence:

To understand the meaning of Jurisprudence, let us first and foremost see its etymology.
Jurisprudence directly came from a Latin word ‘jurisprudentia’, which means ‘science of law’ or
‘knowledge of the law’ or ‘skills of law’, where ‘Juris’ means law and ‘prudentia’ means
‘knowledge or skills.’

Thus, Jurisprudence means knowledge or skill, or theory of law and its applications. It is also
referred to the philosophy of law. In this sense, Jurisprudence covers the whole body of general
legal principles in the world upon which the actual rules of law are based.
Simply put, Jurisprudence is a kind of study which investigates the creation, application and
basic requirements of law. It is the investigation of a variety of theories and methods of insights
in respect to law.
If we understand the theories and philosophies behind law, then we can better understand our
laws. Jurisprudence is that science which gives us knowledge about "law." There are various
branches of law existing in the modern legal system such as contract, crime, trust, properties,
companies, labor etc. We are not concerned with the detailed rules of these laws. But rather, we
must study the basic principles of each of these branches.

2. Definitions of Jurisprudence:

Since people around the world have various philosophies and notions, there is no standardized or
common definition of Jurisprudence. Hence, it is very difficult to define the term Jurisprudence.
Nevertheless, several attempts have been made in this context to define the term.
Some of the definitions of the term "Jurisprudence" given by various eminent jurists as under -

i. Ulpian:

Ulpian a Roman Jurist defines jurisprudence as "the observation of things divine and human, the
science of just and unjust." Same connotation as “Right and wrong.”

ii. Austin:

John Austin was the first jurist to make jurisprudence as a science. He defines 'jurisprudence' as
"the philosophy of positive law." In other words, jurisprudence is a scientific and systematic study
of the existing, actual and positive law and has been distinguished from natural, ideal or moral
law.

iii. Holland:

An English Jurist Sir Thomas Erskine Holland defines Jurisprudence as ‘the formal science of
positive law'. According to him jurisprudence should only concern itself with the basic principles
of concepts underlying in any natural system of law.

iv. Gray:

According to John Chipman Gray "jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the Court and the principles involved in those
rules. This means that jurisprudence deals with only that kind of law which consists of rules
enforced by courts while administering justice.
v. Salmond:

Salmond defines Jurisprudence as, "the science of the first principles of civil law." Civil law is
referred to as rules enforced by courts while administering justice.
Salmond agrees with both Austin and Holland only to the extent that Jurisprudence is 'a science, a
systematic study of basic principles of legal systems and with Gray upholding that Jurisprudence
only deals with jurist’s law.

vi. H.L.A Hart:

Jurisprudence is a legal system that consists of primary and secondary rules. These rules explain
the nature of law and provide key to the science of Jurisprudence. By primary rules he meant rules
which impose duty while secondary rules confer powers which provide for creation or variation of
duties by removing defect of primary rules. His view was a reaction against rigid positivism. He
viewed Jurisprudence as a science of law in a broader perspective by co-relating law and morality.

vii. Pound:

Dean Roscoe Pound defines Jurisprudence as "the science of law, using the term law in the juridical
sense, as denoting the body of principles recognized or enforced by public and regular tribunals in
the administration of justice". He believed that behind every issue, there is something social;
therefore, in the study of Jurisprudence, the emphasis should be on the relationship between law
and society.

3. Nature of Jurisprudence: (Jurisprudence course title.pdf)

Jurisprudence deals essentially with abstract and theoretical inquiry into important principles of
law and legal systems.
Jurisprudence, as a subject of study is unique because:
➢ Unlike other subjects in law, it does not create a set of rules.
➢ Jurisprudence is not derived from authority, nor does it have practical applications in the
sense that it does not possess rules which can be deployed to solve factual problems.
➢ There is no unanimity of opinion among jurists on the subject of Jurisprudence. Every
jurist possesses his own idea of what jurisprudence is but also determines for himself
what are the limits and scope of the study of jurisprudence.
➢ The divergence in thoughts is the product of ideological and environmental differences.
➢ With Jurisprudence, all viewpoints on “Jurisprudence” vary widely in subject-matter and
treatment. The reason is that these views or writings concern thoughts about law on the
broadest possible basis, rather than expositions of law itself.
Thus, we need to know that Jurisprudence deals with the structure, uses and functioning of law
and legal concepts. And that is what all are expected to focus on while embarking on the study of
Jurisprudence.
 4. Scope of Jurisprudence:

The scope of jurisprudence cannot be limited. It covers all the concepts of human order and
human conduct. It extends to anything concerning the order in state and society. Indeed,
Jurisprudence is both an intellectual and idealistic abstraction as well as the behavioral study of
man in society. It includes political, social, economic, and cultural ideas. It covers that study of
man in relation to state and society.
Hence, the study of jurisprudence should be integrative and synthetic as also purposive keeping
in view the need for humanistic justice through human and ‘just law’. Jurisprudence is a lawyer’s
extraversion. It is the lawyer’s examination of precepts and techniques of the law in the light
derived from Modern knowledge in disciplines other than law. It involves certain types of
investigations into law, and investigation of an abstract, general, and theoretical nature which
seeks to lay bare essential principles of law and legal systems. It is also observed that in
jurisprudence, we are not concerned to derive rules from authority and apply them to the
problem; we are concerned rather to reflect on the nature of legal rules, on the underlying
meaning of legal concepts and on the essential features of the legal system.

SECTION THREE: WHY WE STUDY JURISPRUDENCE.

We study Jurisprudence for the following reasons:
1. The study of jurisprudence helps to put law in its proper context by considering the needs of
society and by taking note of the advances in related and relevant disciplines.
It also helps to render the complexities of law more manageable and more rational. It is the belief
of this subject that the theory can help to improve practice.
2. Jurisprudence can teach people to look if not forward, at least sideways and around them and
realize that answers to a new legal problem must be found by a consideration of present social
needs and not in the wisdom of the past.
3. Jurisprudence trains the mind into legal ways of thought. It teaches the proper use of legal
terms by providing learners with brief and clear terminology.
4. Jurisprudence is the eye of law and the grammar of law because it throws light on basic ideas
and fundamental principles of law. Certain fundamental conceptions such negligence, liability,
mens-rea, etc, have to be learned before provision of law relating to them can be understood.
5. Understanding the nature of law, its concepts and distinctions, a lawyer can find out the actual
rule of law.
6. Jurisprudence also has an educational value. It helps in the logical analysis of the legal
concepts, and it sharpens the logical techniques of the lawyer.
7. Some logical training is necessary for a lawyer, and this could be found in the study of
Jurisprudence. Evidently the knowledge of Jurisprudence trains lawyer’s mind to find
alternative legal channels of thought as they tackle new problems every day.
8. The study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus,
for it concerns human thought in relation to social existence.
9. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws passed
by the legislators by providing the rules of interpretation. Therefore, the study of jurisprudence
should not be confined to the study of positive laws but also should deal with the improvement
of law in the context of prevailing socio-economic and political philosophies of time, place
and circumstances.
10. Jurisprudence helps the judges and lawyers in ascertaining true meaning of laws passed by
the legislature by providing the rules of interpretation.
11. To become successful lawyers or judges, jurisprudential background is necessary.
12. Jurisprudence is also helpful to legislators who play a vital role in the process of law making.
The study of jurisprudence helps them to understand the technicalities of the law and legal
precepts. It makes their job easy and interesting.
13. It trains the critical faculties of the mind of the students so that they can dictate fallacies and
use accurate legal terminology and expression.
14. Jurisprudence helps law students to understand every aspect of the philosophy of law. For it
ensures appropriate use of legal terminology. It also helps students to turn out competent lawyers
in the long run.
SECTION FOUR: RELATIONSHIP OF JURISPRUDENCE WITH OTHER SOCIAL
SCIENCES
1. Sociology and Jurisprudence- There is a branch called Sociological Jurisprudence. This
branch is based on social theories. It is essentially concerned with the influence of law on society
at large, particularly when we talk about social welfare. The approach from sociological
perspective towards law is different from a lawyer’s perspective. The study of sociology has
helped Jurisprudence in its approach. Behind all legal aspects, there is always something social.
2. Jurisprudence and Psychology- No human science can be described properly without a
thorough knowledge of the Human Mind. Hence, Psychology has a close connection with
Jurisprudence. The relationship of Psychology and Law is established in the branch of
Criminological Jurisprudence. Both psychology and jurisprudence are interested in solving
questions such as the motive behind a crime, criminal personality, reasons for crime etc.
3. Jurisprudence and Ethics- Ethics has been defined as the science of Human Conduct. It
strives for ideal Human Behavior. This is how Ethics and Jurisprudence are interconnected:
a. Ideal Moral Code-
a. This could be found in relation to Natural Law.
b. Positive Moral Code- This could be found in relation to Law as the Command of the
Sovereign.
c. Ethics is concerned with good human conduct in the light of public opinion.
d. Jurisprudence is related with Positive Morality in so far as law is the instrument to assert
positive ethics.
e. Jurisprudence believes that Legislations must be based on ethical principles. It is not to
be divorced from Human principles.
f. Ethics believes that No law is good unless it is based on sound principles of human value.
g. A Jurist should be adept in this science because unless he studies ethics, he won’t be able
to criticize the law.
 h. However, Austin disagreed with this relationship.

4. Jurisprudence and Economics- Economics studies man’s efforts in satisfying his wants and
producing and distributing wealth. Both Jurisprudence and Economics are sciences and both aim
to regulate the lives of the people. Both of them try to develop the society and improve life of an
individual. Karl Marx was a pioneer in this regard.
5. Jurisprudence and History- History studies past events. Development of Law for
administration of justice becomes sound if we know the history and background of legislations.
and the way law has evolved. The branch is known as Historical Jurisprudence.
6. Jurisprudence and Politics- In a politically organized society, there are regulations and laws
which lay down authoritatively what a man may and may not do. Thus, there is a deep
connected.
between politics and Jurisprudence.

SECTION FIVE: SCHOOLS OF JURISPRUDENCE

Introduction:
The different definitions of Jurisprudence have led to the formation of different schools
of legal Jurisprudence.
These schools follow different principles of law and therefore have been given the following
names:
1. Philosophical school of Jurisprudence
2. Analytical school of Jurisprudence
3. Sociological School of \jurisprudence
4. Historical School of Jurisprudence
5. Legal Realism School of Jurisprudence
Schools of Jurisprudence give the idea of how society, law and need of the law originated,
and how gradually the law was amended according to the needs of society and people. Schools
of Jurisprudence assist us to understand our purpose of existence. With our being, we do
contribute to society in our own way and have been doing the same for ages. The contributing
factor for the establishment of a successful and working society needs the consent of people for
the law they are following.

A. PHILOSOPHICAL SCHOOL OF JURISPRUDENCE

It is also called Natural Law or Divine Law of Jurisprudence. This school focuses more on the
importance of moral values and traditions in the formation of laws for society. As a result of the
contribution of this school, law today has become a mixture of traditions, morals values and
other aspects.
A philosopher consented that, as humanity has failed to find absolute justice throughout
history, ideas about natural law have also been evolving along with societal changes. Natural law
was seen to have a divine origin in pre-historic civilizations, a religious and supernatural
foundation in medieval periods, and a strong political and legal foundation in modern times. The
natural law theory's belief in a universal order regulating all men and women is its most significant
contribution to the legal system.
 Thus, this school holds that the goal of the law is to preserve social harmony and uphold law
and order in society, and that the only way that legal limits can be justified is if they advance the
freedom of individuals in the community.
Equally, the philosophical or moral school is primarily concerned with how legislation relates
to goals that it is meant to achieve. It takes an effort to investigate the justifications behind the
creation of a specific law.
Importantly, Philosophical or Natural Law School of Jurisprudence has a long history of
evolution beginning from the classical Greek period to Modern times; it covers all sorts of legal
principles of the world. This School can be classified into the following (4) four periods of
existence.
1. Ancient Period:
The law in this period was believed to be closely associated with the concept of morals and
values. The philosophers who believed so included: Greek and Roman philosophers such as
Socrates, Plato, Aristotle, Cicero, and others. These philosophers believed that an individual has
the moral capability to determine the difference between right and wrong; and humans have the
insight that can guide them to judge different acts. Thus, they defined law as a mere product of
correct reasoning.
2. Medieval Period:
This period includes the contribution of legal philosophers to the philosophical theory of law.
These philosophers are St. Augustine of Hippo and Thomas Aquinas.
a. St Augustine oh Hippo focused on the contribution of religion to laws. He argued that
God was the main source of law, because of a direct influence of God on the human
mind. God has influences law by logic and order.
b. St. Thomas Aquinas, in his “theory of law”, declared that increased importance was given
to Christianity. Aquinas defined law as the reason for the common good. He further
believed that “unjust” laws were not required to be followed and that the only laws one
must follow are those set-in nature of God. An individual could only find such
knowledge by merely applying reason and studying Religious Scriptures.
Thomas Aquinas classified law into (4) four namely,
i. Eternal Law or law of God – Believed to be revealed through fate.
ii. Law of Nature – Revealed through the natural surroundings of an individual.
iii. Human or man-made law – They are derived through Reason.
iv. Divine Law or Scripture – These are believed to be revealed through religious
literary text.
3. Renaissance Period:
This period refers to the time when the philosophy of the ancient and medieval
juris and philosophers were restudied by various philosophers such as: Thomas Hobbes,
John Locke, and Jean Jacques Rousseau. They collectively believed in the existence of
natural rights of an individual. This refers to the rights that an individual enjoys merely
because he has been born as a human.
i. Thomas Hobbes:
He introduced his theory known as “social contract”. In this theory Hobbes stated
that Humans entered a contract with one ruling authority (sovereign), who would
guarantee to protect their natural rights. However, this contract was said to be a
unilateral one, in the sense that only the subjects were obligated to fulfil their
 duties toward the ruler. Thus, the subjects had unlimited, unconditional obligation
towards the state.
He described the Ruler as the ultimate sovereign who had the power to dominate
all the other members of the society thereby supporting absolution.
ii. John Locke:
He also applied the theory of “social contract”. Locke believed that the contract
ought to be a bilateral one where the Ruler was equally accountable to the
subjects as the subjects were to the ruler. This, he believed, would build a
relationship of trust between the citizens and the ruler, thereby ensuring the
smooth functioning of the legal system and society in general.
iii. Jean Jacque Rousseau:
Rousseau believed that good government must have the freedom of all its citizens
as its most fundamental objectives. Social contract is Rousseau’s attempt to
imagine the form of government that best affirms the individual freedom of all its
citizens, with certain constraints inherent to a complex, modern civil society.
Rousseau recognized that as long as property and law exist, individuals can never
be as utterly free in present day society as they are in the condition of nature.

4. Modern Period:
With the commencement of the nineteenth century, the advocacy of natural law
witnessed a fall since the focus shifted towards the other facets of law.
The concepts of “social contract” were regarded as myths. Further, the absolute
and unchangeable principles of natural law were dismissed as impractical.

B. ANALYTICAL SCHOOL OF JURISPRUDENCE

The analytical school is positive in its approach. Legal positivism is the most powerful school of
thought in Jurisprudence. The essential concept of the Analytical school of Jurisprudence is
to deal with the law as it already exists. This school isn’t interested in the law’s history or future;
instead, it studies the law as it is now, it focuses on the current state of law. It tries to examine and
study the principles of law as they exist in the legal system.
Law, according to the Analytical school, is the sovereign's direction. The proponents of the school
consider that the most important aspect of the law is its relation to the state. They see the law as an
order issued by the Sovereign, i.e., the State. They treated law as command emanating from the
state. They believed that law originates from the state and attempted to define the relation of the law
with the state. The advocators of the school are Jeremy Bentham and John Austin.

i. Jeremy Bentham:
He argued that the state is the amalgamation of maximum happiness and maximum liberty. He
means that if people will be liberal and free to do and choose what they want, they will be attaining
the utmost happiness and they will consequently deliver the best to society and the state.
He wanted to prevail over the concept of the greatest happiness of the greatest number of people, and
he did so by testing of law. The testing of law works on the principle of “Utility”.
ii. John Austin:
According to Austin, the law is the rules which discern the rights and the wrongs by a man to fellow
man. Additionally, the law is a command of a sovereign by the sanction.
 C. SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

The integration of diverse schools of law led to the emergence of the "sociological school of
jurisprudence." The focus of this school's proponents is how the law interacts with other modern
social organizations. Law and other social sciences are linked by proponents of sociological
jurisprudence, who see them as a synthesis of psychology, philosophy, economics, political
science, etc.
In this school, the law must be studied in relation to society. The exponents of this school
considered law a social phenomenon. They consented that the law and society are related to each
other, largely because it has a major impact on society. They lay emphasis on actual social
conditions and situations which require the help of the law.
They emphasized that the jurists should focus their attention on social purposes and interest
served by law rather than on individuals and their rights. The school favors the factor that social
interest of society must have a priority over an individual’s interest and that the purpose of law is
to protect the interest of the whole society. The essential characteristics of law should be to
present common interaction of men in social groups, whether past or present.
To this end, the main concern of sociological jurists is to study the effect of the law and society
on each other.
The exponents of the school include the following:
1. Ihering (1818-1892) {The Social Interests}
Ihering believed that the essence of law could be expressed by reference to its very purpose,
which was social. Law existed to protect the interests of individuals and society by balancing and
coordinating interests.
Interests need to be studied if the purposes of the law are to be understood in the following
manner:
• The law should attempt to achieve an equilibrium of individual and social principles and
purposes.
• The creation of unity from diversity demands an effective law which will reflect social
purpose and contribute to a partnership of individuals within society.
2. Ehrlich (1862-1922) {The living law}
At present as well as at any time, the center of gravity of legal development lies not in
legislation, nor in juristic science, nor in judicial decision, but in society itself.
Ehrlich differentiated “norms for decision” from “norms of conduct”. Norms of conduct are
often in contrast to the rules enforced by the state and constitute the “living law”, which reflects
the true values of society.
A vital task for legislators, judges and jurists is to discover the “living law”; this involves
studying much extra-legal data when investigating a legal problem.
3. Durkheim (1858-1917) {Social solidarity}
Durkheim saw social cohesion or (social solidarity) as fundamental to society. “Mechanical
solidarity”, which seemed to exist in societies in which there was an absence of the division of
labor, was contrasted with “organic solidarity”, which reflected the fundamental interdependence
of producers. Law could be perceived as an external index to the type of society in which it
flourished. A strict, repressive law was characteristic of societies dominated by mechanical
solidarity.
Law symbolizes social morality. That which assists in the creation and maintenance of social
solidarity is moral and the morality of society is as stronger as the ties existing among its
members. Everything which forces man to take account of other men is moral. Law and morality
cannot be discovered.
4. Max Weber (1864-1920) {Law as legitimate authority}
The exercise of power within a society involves an acceptance by its members of “legitimate
authority”.
Weber enumerates three types of legitimate authority:
i. Traditional – epitomized by the rule of patriarchs and arising from the belief that the
rulers’ authority was conferred by ancient tradition.
ii. Charismatic – involving obedience to some extraordinary person (hero, prophet).
iii. Rational legal – involving impersonal authority and widespread belief in the legitimacy
of enacted rules. Weber analyzed procedures within legal systems and produced the
following classification.
a. Substantively irrational system – ad hoc and intuitive decisions predominate.
b. Formally irrational systems – decisions result from tests beyond control of the human
mind.
c. Substantively rational systems – morally and law are combined totally, as in a
theocracy.
d. Formally rational systems – attempts are made to apply logically consistent principles
to the solution of a wide type of legal problem.
5. Roscoe Pound (1870-1964) {Social Engineering}
Pound defined law as containing the rules, principles, conceptions and standards of conduct as a
developed technique of social engineering. Pound gives the theory of social engineering in which
he compares lawyers with engineers. According to Pound, law is social engineering which means
a balance between the competing interest in society, in which applied science is used for
resolving individual and society problems.
Social engineering is balancing the conflicting interests of individual and the state with the help
of law. Law is used to solve conflicting interests and problems in society.

D. HISTORICAL SCHOOL OF JURISPRUDENCE

The historical approach to jurisprudence is based upon the assumption that the key to an
understanding of jurisprudential problems may be discovered in an analysis of the past. He who
would confine his thought to present time will not understand present reality. It is the light thrown
by historical study upon the interpretation of patterns of jurisprudential development which
continues to attract contemporary jurists.
Legal scholars or jurists from the Historical School of Jurisprudence discuss how society and
the law are intertwined. The state's law is made up of all of society's customs and laws. A
community's particular wants and demands are closely related to the social structure of that
society. This idea demonstrates that the rule is the result of historical causes and effects. The law
depends on people's broad awareness. The understanding has existed since the beginning of the
public because no one had the authority to act as a sovereign and create laws.
Exponents of Historical School of Jurisprudence:
i. Savigny (1799-1861)
a. Custom and the people:
All law is originally formed in the manner in which customary law is said to have been formed;
i.e that it is first developed by custom and popular faith, next by jurisprudence; not by the
arbitrary will of a lawgiver.
In this connection,
- Law seems to resemble language in some respects.
- Law and language evolve gradually, reflecting a people’s evolving characteristics.
- Law and language are essentially non-static; both flourish when the people flourish; both
die when people lose its individuality.
For law as for language, there is no moment of absolute rest. No laws have universal validity;
they have application to specific people only.
b. The place of legislation and lawyers:
Legislation reflects harmony with the people-------
Legislation will be reflected only when it is in harmony with the people’s voice and deep
aspirations and when it reflects the needs of the people.
ii. Maine: (Understand ancient law)
He interpreted history as providing proving proof of the existence of stages in the evolution of
law. Three distinct, yet connected stages in legal development may be discerned in the records of
the past:
The first stage – law emerges from the personal judgments of particulars and rulers.
Second stage – Rulers appear, claiming a monopoly of interpretation of the law.
Third stage – the spread of writing produces “codes of law” (e.g the Roman Twelve Tablets)
which state the law as it is.
Further progress in legal development depends upon the nature of society.
- The stationary societies did not move beyond code-based law. The result was inflexible
legal systems.
- The progressive societies have a dynamism which expresses itself in modification of the
law to meet new situations. The result was progressive law.
Maine’s dynamic stage of legal development:
Progressive societies utilized three agencies so as to move the law:
a. “Legal fictions” were employed so as to advance the interests of justice.
b. “Equity” grew in response to the need for a softening of the occasional harshness of
formal law.
c. “Legislation”, the peak of legal achievement, indicated a systematic approach to the
needs of society in relation to law.

E. LEGAL REALIST SCHOOL OF JURISPRUDENCE

The Legal Realist of jurisprudence is based upon the foundation that the laws are not just written
rules but also the actions of legal authorities such as judges.
Legal Realism addressed mainly the conduct of judges and the conditions that their behaviors
affect judicial decision-making processes. According to the school, the law is defined as a broad
prediction of what the court will do.
This school of Jurisprudence emphasized court proceedings, judgement, the role of judges. The
proponents of this school predicted that “Judgments are the source of law”.
When it comes to judicial decision-making, realists had two general theses:
First: Judges have a preferred outcome of a case even before they turn to legal rules. That
preferred outcome is usually based on some non-legal grounds such as: conceptions of justice,
attributes of litigating parties, (eg. Government, poor plaintiff, racial group, etc.), ideology,
public policy, preferences, judges’ personality, etc.
Second: judges usually will be able to find justification in legal rules for their preferred outcome.
Normally, judges will find some cases, statutes, maxims, canons, authorities, principles, etc, that
will justify their preferred outcome.
The Realism School of Jurisprudence is classified into two types: American Realism and
Scandinavian Realism.
1. American Realism:
The American Realism believes that Analytical and Sociological schools are combined in the
Legal Realism School of Jurisprudence. Analytical signifies the judgment delivered by judges in
courts. Whereas Sociological is reflected in the influence of judges-made legislation on society.
The rise of realism encouraged judges to become more interpretive in their thinking and gave
rise to much debate around possible legislative changes and social reforms.
Exponents are:
i. John Gray (1839-1915):
According to Gray, the court, rather than the legislature, is the most significant source of law.
According to him, judges’ mentality, and bias, play a significant impact in their decision-making.
He argued that courts are the ones who give life to the statute’s words.
ii. Oliver Homles (1841-1934)
Homles wrote that “the life of law has not been logic; it has been experience.” He argued that
changes in law (at least judge-made law) were not due to logic or pre-existing law; instead,
policy preferences or personal experiences of judges matter more. He contended that the practice
of law was a combination of both experience and logic. His emphasis was on the practical
aspects of law. He pointed out that the primary goal of studying legal history was for him to
begin the process of re-evaluating the value of laws that had been formed through time. There
must be a clear separation between law and ethics.
iii. Jerome Frank (1889-1957)
Legal accuracy, according to Jeremy Frank, is a myth, and there is no way to predict the outcome
of any wrongdoing since there are many variables and constraints that are left open to different
interpretations.
He focuses here on the actions taken by and planned for by jurists and judges. They reach their
conclusion by applying the law. But what if both the choice and the facts are incorrect? There is
no way to know for sure that judges will be able to understand all the information and reach the
right conclusion every time.
He doubted judges’ ability to make decisions based on general categories or general rules.
According to Frank, the judge’s preferred outcome precedes the inquiry into legal rules. “Judicial
judgments, like other judgments, doubtless, in most cases are worked out backward from
conclusion tentatively reached.”
Frank asserted that a judge will usually accept only that evidence which will support his or her
preferred outcome. He added, “a judge, eager to give a decision which will square with his sense
of what is fair, but unwilling to break with traditional rules, will often view the evidence in such
way that the facts’ reported by him, combined with those traditional rules, will justify the result
which he announces.”
He believed that a judge’s personality plays a more important role than most legal rules. For
Frank legal rules were not important. Frank argued that judicial outcomes depend on many
factors, most of which can be extra-legal judge’s personality, political preferences, mood, racial
views, etc.
vi. Carl Llewellyn (1893-1962)
According to him, legislation is seen as a tool for achieving social goals and every aspect of the
system must be examined for its purpose and impact. Society’s view of the world changes more
quickly than the law does.

2. Scandinavian Realism:
In contrast to American Realism, the approach used by Scandinavian realists to law is more
abstract and philosophical.
The exponents are as follows:

a. Alf Ross (1899-1976)

Alf was interested in the moral nature of law. It was his interpretation of the law that was based
on the realities of society. For him, it is all about judge-made laws in America’s way of doing
things.
He categorized norms of conduct and norms of procedures as distinct types of legislation or
standards. He raised doubts about the legislation’s legitimacy and disbelief in applying social
realities to the interpretation of the law.
b. A.V. Lundstedt ()1882-1957
According to him, justice is nothing more than an abstract concept that is nothing more than
imagination.
When it comes to studying law, he thought that only physical facts should be examined. He
opposed the concept of laws as “material laws.” According to him, rather than focusing on what
is right or wrong, judges should consider what is best for society. In lieu of justice, he used the
word social welfare.
 UNIT TWO
CLASSICAL NATURAL LAW THEORY

SECTION ONE: INTRODUCTION

Natural law theory is one of the jurisprudential approaches to law. It generally maintains
that some laws are basic and fundamental to human nature and are discoverable by human reason
without reference to specific legislative enactment or judicial decisions.
The concept of natural law originates in Greece and received its most important
formulation in Stoicism. The Stoics believed that the fundamental moral principles that underlie
all the legal systems of different nations were reducible to the dictates of natural law. This idea
became particularly important in Roman legal theory, which eventually came to recognize a
common code regulating the conduct of all peoples and existing alongside the individual codes
of specific places and times.
Christian philosophers such as St. Thomas Aquinas perpetuated this idea, asserting that
natural law was common to all peoples Christian and non-Christians alike. Apparently, natural
law gave Christians an additional guide for their actions.
In modern times, the theory of natural law became the chief basis for the development by
Hugo Grotius of the theory of international law. Later writers and philosophers continued to
consider natural law as the basis of ethics and morality.
The influence of natural law theory declined greatly in the 19th century under the impact
of Positivism. In the 20th century, however, such thinkers as Lon L. Fuller saw natural law a
necessary intellectual opposition to totalitarian theories.
That said, this unit shall investigate Natural Law in the eyes of the Greeks, Stoics, and the
Middle Age Christian fathers.

SECTION TWO: THE NOTION OF NATURAL LAW

To grasp some ideas about the notion of the theory, we must understand first that ‘natural
law’ does neither hold the same meaning as the ‘law of nature’ nor ‘state of nature.’ Indeed,
‘Law of nature’ governs the physical world while ‘state of nature’ indicates the condition in
which man lived or supposed to have lived before the birth of ordered society.
Natural law is thus that which furthers the attainment by men of the ends that nature has
made it man’s nature to seek to achieve. Within nature, man has his own nature. His nature
inclines him towards certain ends: to procreate children, to protect family, to ensure his survival.
To seek such ends is natural to him. Those things which assist the achieving of such ends assist
the purpose of nature. Such laws that are in accord with the ultimate purpose of man, constitute
natural law.
To elaborate it in negative explanation we can also put it in the following way. Those
things which impede man attaining his natural ends are contrary to natural law. Thus, if a man-
made law obstructs the achievement by man of what has been decreed by nature as his ends, then
the law is contrary to natural law.
Since natural ends are the same for all mankind and remain the same for all mankind, and
remain the same for all time, it is natural that the principles of natural law are constant. Thus,
natural law comprises a body permanent, eternal truths, truths embodying precepts of universal
applicability, part of immutable order of things, unaffected by changing human beliefs or
attitudes.

SECTION THREE: ANCIENT GREECE: Natural Law as Source Of Justice And Virtue
General
Jurisprudence has a long history of evolution beginning from the classical Greek period to
Modern times; it covers all sorts of legal principles of the world.

a. Socrates

The name of Socrates occupies a prominent place among the philosophers of the ancient times.
According to Socrates, virtue is knowledge and whatever is not virtue is sin.

To him, justice may be of two kinds, namely:

1) Natural justice; and

2) Legal justice.

The rules of natural justice are uniformly applicable to all; but the notion of legal justice differs
from place to place depending upon the existing law in time and place. The reasonability of a
particular law is judged by human insight and only those laws would be deemed proper which are
in accordance with the principles of law and nature and are supported by human reasoning.
However, Socrates did not deny the authority of the law, but he pleaded for the necessity of natural
law for security and stability of the community.

Socrates throws light on the nature of justice pointing out that:

• Justice implies superior character and intelligence while injustice means
deficiency in both respects. Therefore, just men are superior in character
and intelligence and are more effective in action. As injustice implies
ignorance, stupidity and badness, it cannot be superior in character and
intelligence.
• A just man is wiser because he acknowledges the principle of limit.
Unlimited self-assertion is not a source of strength for any group organized
for common purposes. Unlimited desire and claims lead to conflicts.
• Life of just man is better and happier. There is always some specific virtue
in everything, which enables it to work well. If it is deprived of that virtue,
it works badly.
 • The soul has specific functions to perform. When it performs its specific
functions, it has specific excellence or virtue. If it is deprived of its peculiar
virtue, it cannot possibly do its work well. It is agreed that the virtue of the
soul is justice. The soul which is more virtuous or in other words more just
is also the happier soul. Therefore, a just man lives happy. A just soul, in
other words a just man, lives well; an unjust cannot.
In regard to obedience, Socrates said that it was good to obey the law and the order of a
commander as long as they are just. But if the command was illegal or the laws unjust, then no
man shall obey the order or the laws. From this argument Socrates developed the principle that
the command of god is more pious and just and as a result it is above and beyond any other
human laws. Hence, it is wise to obey god’s command than human laws when they are in
conflict. He believed that he was commanded by god to teach people philosophy, to question and
convince them whenever he got the chance.
From these arguments, we can infer two main principles:
❖ The first principle is that citizens must obey and uphold the positive laws. It is preferable
to obey the laws than the government. To obey the positive law and disobey the action of
the officials which is contrary to the written law.
❖ The second principle is that citizens shall obey the law if it is only a just law. Just law for
Socrates, is measured based on the perfect laws of the gods. If the laws the laws are
unjust and unholy, citizens shall refuse obedience.
A conflicting idea of law is found in the second writing, Crito. Socrates justified the coercive
power of the state laws (positive law) and thereby upholding and respecting the decision of the
courts on three grounds:
✓ First on moral grounds. In that it is bad and disgraceful to harm or to do injustice to
another. He argued that to do injustice in return for injustice or in other words, to return
harm for harm is also bad. Thus, to do wrong to others or to return harm for harm is both
equally bad and dishonorable.
✓ Secondly, Socrates analogized the power and status of law to one’s parents, for it was the
laws which administer the marriage of his family, ordered his family about upbringing
and education, etc. It is a great evil to make wrong to parents whatever they do to you.
Similarly, citizens are not justified to back-harm their country whatever harm the country
caused to them.
✓ Thirdly, there was a tacit agreement between Socrates and the state of Athens, stipulating
that Socrates either obey the laws or, when he sees the laws unjust, he should persuade
the city to act in a more suitable fashion. If he was not pleased with the laws, he could
move to other countries. This means his living in the country shows that he agreed to be
governed by the law of the country.
 b. Plato:

Plato believed that natural law is eternal, like the gods who have given it to mankind. In his
philosophy, Plato gives very important place to the idea of justice. For him, justice and the good
life featured prominently in Greek political and legal analysis. Justice is a spirit, a habit of life
that animates man's action. The inner sense of justice is felt by the conscience, which is
something much higher in spiritual truth and content, than the law of the State;
He used the Greek word "Dikaisyne" for justice which comes very near to the work 'morality' or
'righteousness', it properly includes within it the whole duty of man. It also covers the whole
field of the individual's conduct in so far as it affects others.
Plato contended that justice is the quality of soul, in virtue of which men set aside the
irrational desire to taste every pleasure and to get a selfish satisfaction out of every object and
accommodated themselves to the discharge of a single function for the general benefit.
Justice is thus a sort of specialization. Plato asserts that functional specialization demands
from every social class to specialize itself in the station of life allotted to it. It exists both in the
individual and society. Individually "justice is a 'human virtue' that makes a man self-consistent
and good; socially, justice is a social consciousness that makes a society internally harmonious
and good." It is the original principle, laid down at the foundation of the State, "that one man
should practice one thing only and that the thing to which his nature was best adopted".
True justice to Plato, consists in the principle of non-interference. The State has been
considered by Plato as a perfect whole in which each individual which is its element functions
not for itself but for the health of the whole. Every element fulfils its appropr iate function.
Justice in the platonic state would, therefore, be like that harmony of relationship where the
Planets are held together in the orderly movement. Plato was convinced that a society which is so
organized is fit for survival. Where man is out of their natural places, there the co-ordination of
parts is destroyed, the society disintegrates and dissolves. Justice, therefore, is the citizen sense
of duties.
Justice is, for Plato, at once a part of human virtue and the bond, which joins man
together in society. It is the identical quality that makes good and sociable. Justice is an order
and duty of the parts of the soul, it is to the soul as health is to the body. Plato says that justice is
not mere strength, but it is a harmonious strength. Justice is not the right of the stronger but the
effective harmony of the whole. All moral conceptions revolve about the good of the whole-
individual as well as social.
Plato approaches the idea of justice through an analysis of the state. The ideal state
reflects harmony among its classes of citizens, comprising craftsmen, guardians and the ruling
elite. Balance and harmony are essential if justice within the community is to prevail. Justice is
the end; state is merely the means.

c. Aristotle:
Aristotle stated that the function of law is to assist a person in the full development of his or her
powers. Law must embrace all activities within the community. Equitable principles be
developed to soften the rigors of the law.
He asserted that Natural Law is rightly called as justice, admitted and recognized without any
formal or conventional declaration, resulting from the nature of men and based upon the nature
of our being.
To him, the term "justice" refers to two different but related ideas: general justice and particular
justice.
- General Justice: When a person's actions toward others are completely virtuous in all matters,
Aristotle calls them "just" in the sense of "general justice"; as such, this idea of justice is
coextensive with virtue.
- Particular justice: It has to do with part of "general justice" when the individual is concerned
with treating others equitably.
Equally, justice for Aristotle exists among those persons whose relationships are truly regulated
by law. To administer the law is to distinguish the just from the unjust. Thus, what is “just by
nature” is not what is “just by law.”
He believed that there is natural justice that is valid everywhere with the same force. This natural
justice is positive and does not depend on the decisions or laws of any one group of the people.
Consequently, justice may be classified as follows:
▪ Distributive justice – is, essentially, that which is exercised in the distribution of honor,
wealth, ‘and the other divisible assets of the community’, and these may be allotted
among its members in equal or unequal shares. Equals must be treated equally, unequals
unequally. Justice, in the distributive sense, would aim at ‘proportion’, in contrast to the
‘disproportion’ which characterizes injustice.
▪ Corrective justice – stands in contrast to distributive justice; it is concerned with the
effective restoration of any disturbance of social equilibrium. In this connection, a judge
is expected to treat parties as equals, to investigate the nature of the damage done, and to
seek to equalize the situation by imposing penalties which will take away any ill-gotten
gains and will take into account the suffering caused by the offence.
Aristotle noted that corrective justice may be administered in the following situations:
✓ Voluntary transactions, such as selling, buying, hiring, lending, pledging.
✓ Involuntary transactions (of a furtive or violent nature) such as theft, assault, maiming.
SECTION FIVE: THE STOICS: NATURAL LAW AS A REASON
a. Introduction
Stoicism is an ancient Greek School of philosophy founded at Athens by Zeno of Citum
around 300 BC down to about the fourth century AD. It states that the highest human good is
virtue, and this is based on knowledge of the universal. One must live in harmony with the
Divine Reason that governs nature.
Stoicism provided the most complete classical formulation of natural law. Stoicism taught
that becoming a clear, unbiased, and self-disciplined thinker enabled a person to understand the
natural universal reason of all things. Thus, unhappiness and evil are the results of ignorance. A
person is evil because he or she is unaware of their own universal reason.
The Stoics argued that the universe is governed by reason, or rational principle. They argued
that all humans have reason within them and can therefore know and obey its law. Because
human beings have the faculty of choice (a free will), they will not necessarily obey the law; if
they act in accordance with reason, however, they will be "following nature."
The contribution of the Stoic School of Philosophy may be represented by the writings of
Cicero and Seneca
l. Cicero (Marcus Tullius Cicero 106-43BC)
Cicero teaches that law is the highest reason, implanted in nature, which commands what
ought to be done and forbids the opposite. To curtail this law is unholy, to amend it is illicit, and
to repeal it is impossible.
Additionally, Cicero stated that:

- True law is right reason in agreement with nature; it is of universal application,

unchanging and everlasting; it summons to duty by its commands, and averts from
wrongdoing by its prohibitions. And it does not lay its commands or prohibitions
upon good men in vain, though neither have any effect on the wicked.
- It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and
it is impossible to abolish it entirely. We cannot be freed from its obligations by senate
or people, and we need not look outside ourselves for an expounder or interpreter
of it.
- And there will not be different laws at Rome and at Athens, or different laws
now and in the future, but one eternal and unchangeable law will be valid for
all nations and all times, and there will be one master and ruler, that is, God, over us
all, for he is the author of this law, its promulgator, and its enforcing judge.
- Whoever is disobedient is fleeing from himself and denying his human nature, and by
reason of this very fact he will suffer the worst penalties, even if he escapes what is
commonly considered punishment.

Elements of Cicero’s Natural Law:

a. There is the law of nature and there is human nature. These are of necessity and
harmonious with each other (and ultimately the same).
 b. Both the law of nature and human nature reflect the will of a benevolent Supreme Being
who creates and governs the universe.
c. To act I accordance with human nature, human beings must exercise right reason.

II. Lucius Annaeus Seneca

Lucius Annaeus Seneca, most often referred to by his last name, was a prominent philosophical
figure of Stoicism in the Roman Imperial Period (27 BC to AD 476).
In his letter, Seneca, wrote:
Man is a spirit, and his ultimate goal is the perfection of his reason in that spirit. Because man is
a rational animal, his ideal state is realized when he has fulfilled the purpose for which he was
born. And what is it that reason demands of him? Sometimes very easy that he lives in
accordance with his own nature. Yet this turned into something difficult by madness that is
universal among men; we push one another into vices. And how can people be called back to
spiritual well-being when no one is trying to hold them back and the crowd is urging them on?

SECTION SIX: NATURAL LAW AS MORALITY

a. Introduction
The parallels between the tenets of Stoicism and the teaching of Christ came readily to mind. But
Christianity offered an advantage not made available by the Stoicism or any other religion of that
time competing to fill the place left by the decline of the old state religion of Rome. Stoicism
taught that men should love one another, since this was in accord with nature and thus was man’s
duty. Christianity taught “love one another,” and it added, “And if you do, there is a reward – life
everlasting.”
The teaching of Christ provided a code of conduct, but not a comprehensive theology. Indeed,
the creation of theology was the accomplishment of the fathers of the Church, principally St
Augustine and St. Thomas Aquinas. Having been born into the Roman world it was natural that
these men should reflect in their writings aspects of the philosophies of Greece and Rome and
could be enlisted to give intellectual support to the teachings of the new church.
b. St. Augustine of Hippo
Augustine was Bishop of Hippo in North Africa and was particularly associated with a gothic
sense of a great personal struggle with evil and which was enormously influential throughout the
medieval period. He had a strong sense of law and punishment as being closely related.
In his writing named De Civitate Dei (City of God), Augustine pointed out that the Christian
State would reject Roman gods and accept Socratic and Platonic ideas of the just state, within a
Christian context of justice and obedience to the law of the Christian God. He wrote the
statement that: “if a law is unjust, it is no law at all.” Also ‘if a man-made law is in conflict with
natural law, it is invalid.’ And that ‘natural law is inferior in time and superior in hierarchy to the
man-made law.’
In the same writing, (City of God), St Augustine portrayed the human condition as torn between
the attraction of good and evil, with the perfect state being one voluntary submission to the will
of God. This entails that the will of God is seen as the highest law, eternal law, for all people,
playing something of Stoic cosmic reason.
For Augustine, Positive Law is relegated to an even less honored place. He made it mandatory
for a Positive Law to rely on the Eternal Law. Adding that, ‘nothing which is just is to be found
in Positive Law which has not been derived from Eternal Law.’
Thus, an unjust law is one which does not concord with the higher (divine) reason and which is
thus conceived, or directed for an improper law.
Augustine reiterated that ‘to equate man-made law with Natural Law was null and void, and that
the unjust governments were equated with criminal gangs.’

c. St. Thomas Aquinas

St. Thomas Aquinas was one of the most influential natural law jurists whose teachings form the
basis of the Roman Catholic natural law traditions. He greatly influenced Western ideals in the
area of morals, ethics and political theory.
He also contends that human law is derived from divine law which governed the relationship
between all things created by God. According to Aquinas, God is the highest good and the reason
all matter exists and that such creations exist together in a hierarchy known as the ‘Principle of
Subordination.’
Any laws which did not seek to achieve the good of people were unjust and “corrupt laws” as
these laws would lose their power to bind morally. Aquinas declared that: An unjust law is not
law and that if a ruler enacts unjust laws, “their subjects are not obliged to obey them.”

Aquinas divided law into four main categories –

1. Eternal Law

God’s rational direction of all created things. Such law constitutes God’s rational guidance to all
created things and is derived from the divine wisdom and based on a divine plan. Man can never
understand Eternal Law in its entirety but shall be guided by it as he moves through life. On the
one hand, such law resides with God alone, mysterious and inaccessible. For Aquinas, Eternal
Law was the divine and rational model according to which God created the world; this model
provided the foundation for Aquinas’ three other types of law.
2. Divine Law

God’s law as revealed in the scriptures. The Divine Law is derived from God and guides man to
perform through Scriptures, which reveal elements of the Eternal Law to man. For Aquinas, the
purpose of law was to promote the ‘common good’, which leads to the ‘perfect community.’
Divine law manifests itself in the Christian Scriptures – the Commandments or the will of God
revealed in the Old and New Testaments. Such law, according to Aquinas, was necessary as
humans require guidance on how to perform proper acts. It was also required to keep checks on
the uncertainty of human judgment and to provide divine insight on issues they are not
competent to judge for themselves.
3. The Natural Law

Natural Law is the process whereby man, as a rational being, participates in the Eternal Law.
This should emerge from man’s exercise of his reason in the light of God’s word. Aquinas
argued that Natural Law is called ‘law’ only because of man’s participation.
From this Aquinas contends that Natural Law exists among man in the world, and it is the light
of natural reason by which we discern good from evil. From this Aquinas gives us his definition
of the Natural Law stating that it is “participation of humans in Eternal Law.” He added that the
first principle of Natural Law is the human capacity to differentiate good from evil.

4. Human Law

Human law must conform to reason and the law of God. A Human Law creates a moral
obligation if it has been promulgated to men by the lawmaker, and if it is just or consistent with
‘divine’ reason (ie promotes the common good, does not exceed law-maker’s authority and does
not impose a disproportionate burden on individuals). Human Law is a combination of both the
Divine and Natural Laws and must be directed toward the common good. That is to say, its
essence must be just for “an unjust law is not law.”
For Aquinas an unjust Human Law is one that furthers the interests of the lawgiver/government
solely; or exceeds the power of the lawgiver/government; or imposes unequal burdens on the
society being governed. Under this rationale therefore, Aquinas held the belief that disobedience
to an unjust law becomes a duty as if the law is contrary to Divine Law. A man is free or released
from obedience of the unjust law based on the statement that “we should obey God rather than
man.” However, such disobedience should be avoided if it were to lead to social instability,
which is a greater evil than the existence of an unjust law in the first instance.

SECTION SEVEN: NATURE OF MAN AND JUSTIFICATION FOR LAW

The medieval power of the church dissolved with the coming of Renaissance and political
writers such as Hobbes, Locke and Rousseau. These theorists sought to base authority of law
upon a social contract, which entails that individuals surrender their powers to the sovereign
(government).
a. Thomas Hobbes
Thomas Hobbes is an original thinker and political philosopher. He has supported a strong and
absolute sovereign that can maintain peace and security. Hobbes argued that the proper purpose
of government and law primarily was to guarantee peace and order.
In his work (book), Leviathan, Hobbes suggested a natural condition of mankind (also known as
State of Man) in order to explain and show the justifications behind a strong sovereign power.
He termed a natural condition of man as State of Nature in which there was no law and
government. The outstanding characteristic of the State of Nature is War, where every man is
enemy to every man. Men compete with each other for the same thing: food, clothing and so on,
but as they have a rough equality of power to attain their ends, the inevitable result is war and
conflict. In addition, men are vainglorious creatures who carve for honor and felicity, and this
makes matters worse.
In State of Nature each man possesses the natural right to do whatever he thinks fit to preserve
his life. Men are roughly equal physically (an ability to kill each other), intellectually (mainly
experience) and in right. It is the equal natural rights of all men which make life in the State of
Nature so insecure. Yet again, in state of nature, man is bound by the law of nature which forbids
a man to do anything which does not favor the preservation of his life. By the law of nature, a
man should attempt to find peace and he can only do so if he renounces his natural rights to all
things.
Thus, Hobbes declared that man’s only hope to escape from the natural conditions (nature of
man) is to make social contract with the sovereign. To do this they must transfer all their natural
rights, except few, to one absolute sovereign (King, Parliament). Hobbes believed that the
primary condition for the law to win is by ensuring that all men submit to the directions of a
sovereign. This entails that a definite source of law has turned into the sovereign, who was in
charge of making and upholding laws to oversee the conduct of his subjects. He reiterated that
unlimited governmental authority is the only alternative to harness the wild and evil nature of
mankind. In this connection, the government cannot be accused of injustice. Since the sovereign
is the ultimate law maker, he is above all laws and thus he cannot be said illegal and unjust.
Whatever the sovereign does cannot injure his subjects (citizens) because it is done with the
authority of all.
b. John Locke
John Locke is among the most persuasive political thinkers of the difficult period. Locke is also
another natural right political philosopher who depicted the Nature of Man and State of Nature in
a different way.
Unlike Hobbes, who believes that man by nature is evil and self-oriented, Locke, in his book The
Second Treatise of Civil Government, started his argument from an opposite premise that claims
the human decency. The state of nature is, for Locke a state of perfect freedom and equality.
He depicts the state of nature as one of peace in which most men respect the lives, liberties and
estates (properties) of others. These are the natural rights of man, given him by the law of nature
which commands that “no one ought to harm his life, health, liberty and possession.”
Locke argued that the law of nature was a moral precept absolutely binding upon man at all
times. In the state of nature, men have a further right which is to judge and punish transgressors
of the natural law.
As there is no formal authority to enforce the natural law and protect him, each man must protect
his own life, liberty, and property. Each man has also a right to enforce the law by punishing the
wrongdoers. This procedure entails several obvious disadvantages: men become “judges in their
own cases” and hence their reaction to crimes against themselves, relatives or friends likely to be
extreme and inconsistent.
The remedy to protect this problem is to enter into social contracts and establish a government. If
government is to be set up to improve man’s natural condition, it must be based upon the consent
of the governed. Additionally, such a government must first be established by a social contract.
In this connection, each individual shall contract with others to form a political community by
agreeing to transfer to the community as a whole, his rights to execute the law of nature. The
agreement also involves obedience to the majority which is taken to represent the whole
community. Such a contract is the only kind which will eventually produce lawful government.
Having established the state (government), men’s first task is to elect the law-making body that
is the supreme power of the commonwealth/government. Members will be elected from among
the people. Then an organ to execute this law will also be established. This government which is
established on trust should not betray this trust. It shall guarantee the protection of the natural
rights to life, liberty and possessions of citizens otherwise the people will have the right to revolt.

c. Kelsen’s Criticism on Natural Law Theory

1. Natural law confuses value and reality.

Natural law wipes out/blots out the essential difference between the laws of nature, the rule by
which nature describes its objects, and the rule of ethics or morality. We may describe certain
behaviors that are in conformity with a pre-existing standards as good, right or correct and
behaviors that are not in conformity with the norm as wrong or incorrect. Kelsen’s critique was
that: value is not of great quality in natural reality. The fact that in reality big fish swallow small
fish does not imply that the behavior of the fish is good or bad. Value here may conflict between
personal freedom and social security. On such an issue a decision has to be made: which of the
two is to be preferred. The question as to which of the two conflicting values is to be preferred
can only be decided emotionally, according to the feeling or wishes of whoever makes the
decision.
2. Good/bad contradiction
Natural lawyers justify positive law (man-made or human law) on the ground that these are
needed because of man’s badness. At the same time their doctrine requires an assumption that
man is good, largely because it is assumed that the principle natural law was taken from human
nature.
3. Insincerity
Kelsen criticized natural lawyers on the ground of their insincerity: that they failed to carry their
logical conclusion. According to their doctrine, if positive law conflicts with natural law, it is
void.
4. Absolute values and relative values
The fact that ethical judgments and values are relative was the opinion of Greek philosophers
known as Sophists. For them there can be belief, but not knowledge, in the sense of knowledge
of absolute truth. All knowledge is relative to the person seeking it. Kelsen summarizes, “there is
one nature, but we have different systems of law; different beliefs of goodness and badness.”