UNIVERSITY OF IBADAN

FACULTY OF LAW

JURISPRUDENCE AND LEGAL THEORY I

LECTURE 1-NATURAL LAW

INTRODUCTION
The expression “natural law” has had different meanings and has served entirely
different purposes in the course of 2,500 years of history. What appears constant in
the various forms and guises of the expression is the claim that it contains certain
principles. While views diverge as to the source and contents of these principles there
had been constant assertion that these are objective moral principles which depend
upon the nature of the universe and which can be discovered by reason. These
principles constitute natural law.

It should not be supposed however that there is general agreement on deriving

principles of natural law purely from human reasoning for as pointed out by Fuller
“The Greeks put theoretical moral foundation under law by the doctrine of natural
rights. The Roman jurists made natural rights into natural law and sought to discover
the contents of this natural law and to declare it... The Middle Ages put a theological
foundation under natural law... The seventeenth and eighteenth centuries took out
this theological foundation giving us a rational theological or rational ethical natural
law... At the end of the eighteenth century, Kent replaced the rational foundation by a
metaphysical foundation giving us a metaphysical natural law... It remained only for
the analytical jurists to argue that no foundation was necessary...”

The Unresolved Problems of Natural Law

In spite of its tenacity for survival natural law idea has not succeeded in overcoming
the obstacle of deriving moral proposition from propositions of fact, that is deriving an
“ought” from an ‘’is’’. Consider the following statement, for example: It is part of
human nature to reproduce. Does that lead to a proposition that every man or woman
must marry and have children or that the use of contraceptive is contrary to human
nature and therefore should be prohibited?
Note the discussion on the unsuccessful attempts made by Finnis, Aristotle, Aquinas,
Pufendorf, Raz, Hart, Grotius to overcome this obstacle: Lloyd pages 93-99.

Attraction of Natural Law

Natural law thinking possesses the abiding virtue of subjecting positive law to the
scrutiny of moral judgement unlike the authority worshipping approach of legal
positivism. Lloyd stated that the most compelling attraction of natural law to the
student of jurisprudence is that in exposing deficiencies in positivist thinking it
broadens the whole scope of the discipline.

Characteristics of Natural law

Perhaps the most significant characteristic of natural law is idealism. That is, it is
concerned with what ‘’ought’’ to be. Its approach is deductive being based on
abstraction from a higher (metaphysical) order in contrast to positivism which is
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secular, empirical and relativist. Positivism concentrates on a description and
analysis of social facts.
However, natural law has fulfilled many functions in the course of its long history.
It has influenced the transformation of the old civil law of the Romans into a broad
and cosmopolitan system; it has been called in aid by both sides in the fight between
the medieval church and the German emperors; it has given force and validity to
international law; it has provided the platform for lunching appeal for individual
liberty against absolutism; it was by way of appeal to the principles of natural law that
the American judges were able to resist the attempt to modify and resist the unfettered
economic freedom of the individual.

Natural law theories have appeared in various forms. “They could be divided,
according to Friedman, “into authoritarian and individualistic, into progressive and
conservative, into religious and rationalistic, into absolute and relative”.

Nonetheless the most important distinction appears to be between natural law

as a higher law which invalidates any inconsistent positive law and natural law
as an ideal to which positive law ought to conform without its legal validity
being affected.

The discussion will now focus on the historical survey of these various theories.

HISTORICAL PERSPECTIVES

Early Greek Philosophers

Ideas about law and of the nature of law date back to the history of man but law and
religion remained largely undifferentiated prior to the Sophist era of Ancient Greece.
The early philosophy of law, like philosophical speculations in other disciplines, was
largely credited to the ancient Greek thinkers. It must be borne in mind however that
the greatest problem of the ancient Greek City states was instability. It is against a
background of the quest for peace and stability that the views of these thinkers must
be considered.
It is also relevant to keep in view their main concerns viz:
(a) the universal and permanent underlying basis of law.
(b) the relationship of law and justice.
(c) the problem of social stability.

The early Greek philosophers fall into two groups on their views of natural law. There
are those, the materialistic, who believed that in the beginning was matter (not God)
and that natural law is the law that governs the relationship between animate and
inanimate beings. For example, Herealiktus found the essence of being in events in
contradistinction to substance. This event was broken into destiny, order and reason
as the components of natural law. The others are idealists who seek to derive law
from idea or human reason. The Sophists (500 B. C.) must however be singled out for
their empirical approach. They probably qualify as the earliest positivists.

Sophists (School of Enlightenment (5th B.C.)

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The Sophists conceived law purely as human invention born of expediency and
alterable at will (Antiphon) as opposed to the notion of an unchanging command of a
divine being which was the prevalent view up to that time. The concept of justice was
also stripped of its metaphysical attribute and analysed in terms of human
psychological traits or social interest e.g. “right of the strong” was interpreted to be
basic postulate of natural law (callicles) so also was “right of might”(treasymachus).
Protagoras denied that man could have knowledge of the existence or non-existence of
gods and asserted that man as individuals was the measure of all things.

Socrates
From his view (known through Plato) he did not share the “right of might”
interpretation of justice by the Sophists. For Socrates (and Plato) justice meant that
“a man should do his work in the station in life to which he was called by his
capacities”. In Socrates’ view, man’s intelligence and insight were the measure of the
good and it was this insight which tested the reason and goodness of law.

Plato
Plato in his idealist theory asserted that the physical phenomena of the world were
mere manifestation of a superior order laid up in heaven and should be studied only
in order to gain insight into the ultimate pattern in his philosophy of law and justice.
For him it was possible for a man suitably educated in philosophy to attain a vision of
the perfect realm which lay beyond the world of the senses. Justice is presented as a
kind of absolute which can be apprehended only by the philosopher and can be fully
realised only in an ideal state ruled by philosopher – kings. Justice presented in a
particular state can be no more than a pale shadow of real justice. For Plato the
“differences of human personality, the variety of human activities and the restless
inconstancy of all human affairs make it possible for any art whatsoever to issue
unqualified rules holding good on all questions at all times”. Hence, “the best thing of
all is not full authority for laws but rather full authority for a man who understands
the art of kingship and has wisdom”.

Aristotle (384-322) (B.C.)

Perhaps it may be useful to state Aristotle’s basic premise which may throw further
light on his view, that is:
Man partakes of nature in two-fold sense:
(a) Part of God’s creature and as such partakes of experience (biological
interpretation).
(b) Man being endowed with active reason was capable of framing his own
will in accordance with the insight of reason.
He rejected the idealist philosophy of his master (Plato) recognising that justice might
be either conventional – varying from state to state according to the need of
particular community – or natural that is, common to all mankind being based on the
fundamental law or purpose of man as a social or political being. In his view nature
may either be regarded as an ideal expressing the fundamental aspiration of man if
his full potentials were attained or simply regarded as the way man behave by reason
of his psycho-physical make-up. The former view involves an ideal while the latter is
essentially factual.
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Most of the subsequent views of natural law have oscillated between these two
differing ideas of nature as fact or as ideal. Aristotle however tends to blur the
distinction as he regards natural justice as based on rules actually common to
mankind and at the same time he regards as natural to man that which best enables
him to fulfill this purpose as a social being.
“Man” he thought “when perfected is the best of animals but if he be isolated from
law and justice he is the worst of all”.
Aristotle advocates rule of law and application of equity in particular cases of
hardship. (Contra Plato).

The Stoics (Led by Zeno 350 – 260 B.C.)

The recognition of human reason as part of human nature by Aristotle provided the
basis for the Stoic conception of the law of nature. By nature, the Stoics understood
the ruling principle which pervades the whole universe and which they identified with
God. To Zeno the whole universe consisted of one substance and that substance was
reason. Reason, as a universal force pervading the whole cosmos was considered by
the stoics as the basis of law and justice. Divine reason dwells in all men everywhere.
To live according to nature is to live naturally. The law of nature thus becomes
identified with moral duty. They developed a cosmopolitan philosophy founded on the
principle of the equality of all men and the universality (transcending national
frontiers) of natural law.
Their ultimate ideal was a world state in which all men would live together
harmoniously under the guidance of divine reason.
In view of the Stoics in the golden ages of absolute natural law, there was neither
family, slavery, property nor government. They all became necessary with moral
deterioration of man. Relative natural law demands that laws should approximate as
closely as possible to natural law. From the time of the Stoic the notion of natural law
as a principle of human conduct gradually prevailed over the biological interpretation.

The Romans
The Greeks did not succeed in translating their notion of natural law into practical
rules. It was left for the genius of Roman jurists who used the conception of nature
based on reason to transform a rigid – jus civile into a cosmopolitan system – jus
gentium – fit to rule the world. At no other time had the idea of natural law exercised
as great and constructive an influence on positive law. With the granting of
citizenship rights to most of the Roman provincial subjects around 200 A.D. the idea
of a community of civilized mankind as opposed to the parochialism of the small city
states of earlier period was becoming realised. With the rise and spread of Christian
ideas the Stoic concept of a world-state with a common citizenship and a common law
based on natural reason and equality of men acquired a very real and significant
meaning under the prevailing circumstance and consequently had a major impact on
the political and legal development of Roman Empire.

Cicero (106-43 B.C.)

Influenced by Stoic philosophy Cicero postulated a natural law universal,
unchanging and predicated on right (human) reason. The mind and reason was to
him the standard by which justice and injustice were to be measured. To Cicero, the
sense of justice though capable of growth and refinement, was a universal possession
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of all reasonable men. “For since an intelligence common to us all makes things
known to us and formulates them in our minds, honourable actions are ascribed by
us to virtue and dishonourable action to vice and only a madman would conclude that
these judgements are matters of opinion and not fixed by nature.”

Cicero appears to favour the position (as the first natural law jurist), that utterly
unjust law lacks the quality of law.
On the whole it should be stated that the work of Roman Jurists was largely of
practical nature and that they had little occasion to engage in abstract theoretical
discussions about the nature of law and justice.

THE MIDDLE AGES

(a) The Church Fathers (Saints Augustine, Iraneaus, Ambrose, Gregory, George
and Great, Isidore)
Legal philosophy like all other branches of sciences and thinking was dominated in
the Middle Ages by the Church and its doctrines. The relative peacefulness of the
Roman Empire made possible the spread of the new universal faith of Christianity. It
was however a combination of Christian theology, Greek philosophy and Roman
law that fused into the medieval scholastic doctrine of natural law. Initially the
Christian faith postulated the superiority of God’s over man-made-law. Although the
Stoic teaching of brotherhood of men which was embraced by the Christian
philosophers were indifferent to the theory of law based on reason, it was left for St.
Augustine to give the Stoic idea of absolute and relative natural law a divine twist. In
his view only the fall of man from Christian love made human institutions necessary.
He was of the view that in a golden age of mankind, prior to man’s fall, an absolute
ideal of the “law of nature” had been realised. Men lived in a state of holiness,
innocence and justice. They were free and equal, slavery and other forms of
domination of man by man were unknown. Human laws were seen as mere evils
arising out of man’s sinfulness deriving from the fall of man. Law assumed three-fold
divisions – lex temporalis (positive law) lex naturalis and lex aeterna. Natural law was
the revelation of eternal law through men’s “soul, reason and heart”, - the medium by
which God “speaks to us in our conscience”. Eternal law is defined as the reason or
will of God – Absolute natural law). Natural law was thus equated with divine law
partly miraculously revealed and partly ascertained by reason. It becomes the task of
the Christian Church to require the utmost approximation of human law to eternal
Christian principles. However, the defects of men’s nature due to sin called for a
natural law which lacked many of the features of ideal justice. Natural law being
imposed by God could only be expounded by the head of the Catholic Church – the
Pope – who as Vicar of God was invested with the power to expound and interpret the
law of God which was binding on all men ruler and ruled alike – a philosophical
justification of the claims of the Church for sovereign political authority. The state
though bad could justify its existence by protecting the peace and the Church and
striving to fulfil the demand of eternal law. A law which is not just within the
contemplation of external law is no law at all.
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The Thomist Philosophy of Law

(St. Thomas Aquinas and his followers viz: Saints Salisbury and Albert the Great)
1226 – 1274
St. Thomas Aquinas
He is generally acknowledged as the most constructive and systematic thinker of the
Middle Ages. His philosophy remains ever since the most authoritative expression of
what may be called the Roman Catholic view of life. His system represented an
incisive synthesis of Christian doctrines, of Roman law and Aristotelian philosophy.

Thomas Aquinas distinguished between four different kinds of law viz:

(a) Lex aetarna (eternal law) which he defined as divine reason known only to God
and “the blessed”. External law governs the entire universe.
(b) Lex divine (divine law) is the law of God revealed in the scriptures.
(c) Lex naturalis (natural law consists of the participation of the eternal law in
rational creatures. Natural law is made up of primary and secondary principles. The
former is unchanging and universal (though may be added to) while the later could be
changed in rare cases.
(It has been suggested by Friedman that divine law appears to be the written and
natural law the unwritten exposition of God’s eternal law.)
(d) Lex humana: Positive law which derives its validity from natural law changes
with human circumstances and human reason. When this law is unjust either in
respect of the end or in respect of the author it is irredeemably invalid. However,
when it is only unjust in respect of form Aquinas recommends obedience in spite of
injustice “in order to avoid scandal or disturbance”.

Aquinas also distinguished between the positive law of particular societies and laws
common to all societies (jus gentium). The letter was analogous to natural law. Thus
he was able to endow common institutions like private property with a special
sanctity. He considers the right to the acquisition of property as one of the matters left
by natural law to the state as a proper agency for the regulation of social life.
Thus St. Thomas’ system upholds the supreme authority of the Church, gives the
state its due share and at the same time discourages civil revolution.

However, the following pertinent questions appear unanswered: First, it is not clear
which precepts of natural law are primary and which are secondary. Second, it is also
not clear how the secondary principles are derived from the primary ones.

This criticism notwithstanding St. Thomas system has provided the foundation for
modern principles of Catholicism which goes to show the greatness and the elasticity
of the system.
While St. Thomas system stresses the superiority of the reason over the will two
Franciscan monks namely Duns Scotus (1265-1308) and William of Occean (1290-
1349) postulated the supremacy of will over reason. The freedom of men, they argued,
“to love or to hate, to do good or evil” means of necessity that the will is independent of
reason. Thus they inadvertently provided the lunching pad for the philosophy of
absolute power of the sovereign (Machiavelli, Hobbes Hitler).
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Mention should be made of the contribution of Vitoria and Sucrez for their
contributions in reviving and further developing Thomism in the 16th century.

The Classical Era

The Reformation and the Renaissance brought about radical changes in the existing
state of affairs. Their combined effect has been the strengthening of secular,
individualistic and liberalistic forces in political, economic and intellectual life.
Although the law-of-nature philosophy during this era was built on a foundation
provided by the preceding ideas of natural law yet it has the following distinctive
feature:
1. It completed the divorce of law from theology for which the Thomistic distinction
between divine and natural laws has prepared the ground.
2. While the Medieval scholastic philosophers tended to limit the scope of natural
law to a few first principles and elementary postulates, the classical natural law jurists
favoured elaboration of system of concrete and detailed rules hence their theory is
often referred to as natural law of content.
3. The classical natural law jurists shifted the emphasis on the law of reason to a
doctrine of natural rights.
4. It accomplished a shift from the mode of approach from a teleological and
speculative to a casual and empirical view of the nature of man.
There appears to be three distinctive period in the evolution of the classical natural
law philosophy.

First, the process of emancipation from medieval theology and feudalism which took
place after the Renaissance and Reformation brought ‘a rise in Protestantism in
religion, enlightened absolutism in politics and mercantilism in economics. To this
period belong the theories of Grotius, Hobbes and Pufendorf among others. Their
common feature is the postulate that the ultimate guarantee for the enforcement of
natural law is to be found largely in the wisdom and self restraints of the ruler.
The second period starting from about the English Puritan Revolution 1649 was
marked by a tendency towards free capitalism in economic and liberalism in politics
and philosophy. The views of Locks and Montesquieu belong to this era. They sought
to guarantee by means of separation of powers the natural rights to individual against
undue encroachment by Government.
The third period was marked by a strong belief in popular sovereignty and democracy.
Natural law was entrusted to the “general will” and the majority decision of the people.
To this period belongs the theory of the French political thinker Jean-Jacques
Rousseau. This last stage had profound impact on the political and constitutional
development in France while the second period had similar effect in the United State
of America.

Hugo Grotius (1583-1645)

He is reputed to be the father of international law. He defined natural law as a dictate
of right reason which points out that an act, according as it is or is not in conformity
with rational nature, has in it a quality of moral business or moral necessity. “This
law of nature would, in this view obtain “even if we should concede that which cannot
be conceded without the utmost wickedness that there is no God or that affairs of men
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are of no concern to him”. By this detaching the science of law from theology and
religion he prepared the ground for the secular, rationalistic version of modern natural
law.
He indicated two methods of proving whether or not something was in accordance
with the law of nature. “Proof a priori consists in demonstrating the necessary
agreement or disagreement of anything with a rational or social nature. Proof a
posteriori includes if not with absolute assurance, at least with every probability that
there is according to the law of nature which is believed to be such among all nations
or among all those that are more advanced in civilization”. No conclusion
unfavourable to human nature needed to be drawn from the practices of nations that
were savage or inhuman. To find out what was natural we must look to those things
which are in sound condition not the corrupted (Aristotelian).
He enunciated the following axioms of natural law.
(a) Abstain from that which belong to other persons
(b) Restore to other any goods of his which we may have
(c) Abide by pact and fulfil promises made to other persons
(d) Repay damage done to another through fault.
(e) Inflict punishment upon men who deserve it.
To Grotius the paramount principle of natural law is the keeping of promises. A
promise once given is absolutely binding – pactum sunt servanda.
With the harrowing experience of the Thirty years War, Grotius evolved a social
contract theory to achieve international order and peace which was his main concern.
A state, in his view, originated in a contract whereby the people transferred their
sovereign power to a ruler and loosing all power to restrain the ruler into the bargain.
The ruler is only bound by natural law. He then employed the ‘social contract’
doctrine internationally to create a basis for legally binding and stable relations among
the state on the principles of natural law and “consent” – from natural law were
deduced the principles as to how states should conduct themselves. The idea of
consent was utilized to inter rules from the observed practice of states.

Samuel Pufendorf (1632-1694)

Pufendorf (German law Professor) was of the view that nature commended self-love to
man and that self-love is tempered by man’s social ‘impulse’. He then deduced two
fundamental principles of natural law from these two sides of human nature viz:
(a) Man should protect life and limb as far as he can, and to save himself and his
property.
(b) Man should not disturb Human society i.e. he should “not do anything whereby
society among men may be less tranquil”.
The two principles were further integrated to a single fundamental precept formulated
as follows: “that each should be zealous so to preserve himself that society among men
be not disturbed”.
From the second principle mentioned above Pufendorf derived an important legal
postulate that “let no one so bear himself towards a second person or that the latter
can properly complain that his equality of right has been violated in his case” – a
principle of legal equality.
His own social contract assumes two dimensions. First, men agreed among
themselves to abandon the state of natural liberty and to enter into a permanent
community for the purpose of guaranteeing their mutual safety. A decree is them
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made as to the form of Government to be introduced. Secondly, a second contract is
them made between the citizen and the government whereby the ruler binds himself to
take care of the common security and safety while the citizens promise obedience to
him and subject their wills to the authority of the ruler in all things that make for the
safety of the state.
As there is no sanction against the ruler his obligation remains imperfect. However
in extreme case when the prince has become a real enemy of the country and in the
face of actual danger an individual or the people may defend their safety against him.

Thomas Hobbes (1588-1679)

The life of man, in Hobbes view, in a state of nature-absence of organised government
– was “solitary poor, nasty, brutish and short”. Everybody had a right to all things
and profit was the only measure of lawfulness. However, owing to man’s passion for
peace, strong fear of death and the desire for things necessary for commodious living
reason suggests to mankind certain articles of peace termed “Law of Nature”. The
most fundamental law of nature is that peace is to be sought whenever it can be
found. From this law the following specific precepts were deduced.
(a) Everybody must divest himself of the right that he has to do all things by
nature.
(b) Every man stand by and perform his covenants.
(c) All men should help and accommodate each other as far as may be done
without danger to their persons.
(d) No man should reproach, revile, or slander another man.
(e) There must be an impartial arbiter in controversies.
(f) Man should not do to others what they would not wish others to do to them.
In order to secure peace and enforce the law of nature it became necessary for men to
enter into a compact mutually among themselves whereby everybody agrees to
transfer all his power and strength upon one man or an assembly of men on
conditions that everybody else does the same. The “Leviathan” or “Mortal God” thus
constituted should use the combined power and strength of the citizens for the
purpose of promoting the peace, safety and convenience of all. The sovereign imposes
his will through the civil law which now becomes his command. There could be no
right or wrong, no justice or injustice apart from the command of the sovereign power.
The sovereign was subject to no law other than the law of nature and no sanction
other than an afterlife "pains of eternal death” should he enact iniquitous or tyrannical
laws.
Furthermore the authority of the Church as the interpreter of God’s law was
vigorously denied. All legal powers became vested in the secular sovereign and this
marked the final break up of the catholic international order of things. Hence Hobbes’
social contract may be described as a charter of complete subjection to an absolute
sovereign.
However, there is one situation in which the subjects are absolved from their duty of
loyalty towards their rulers: when the sovereign has lost the power to preserve the
peace in society and to protect the safety of the citizens. That is, the individual right
to self-preservation remains inviolate.
It may fairly be said that Hobbes is a precursor of modern positivism and analytical
jurisprudence.
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In the assessment of Hobbes’ view it is important to remember that he lived through
the civil war in England which explains his avowed desired for a strong government.

Second Period
The rise of absolute rulers throughout Europe made it evident that a shield of
individual liberty against government encroachments was strongly needed. While
legal theory favoured security in the first period the emphasis is placed on liberty
during this period and evidenced in the views of Locke and Montesquieu.

John Locke (1632-1704)

The reign of the Stuarts in England has revealed the menace the absolute monarch
would be to the individual. It was not a matter of mere coincidence that Locke evolved
a theory of a social contract to protect him. Unlike Hobbes, Locke presented a picture
of the state of nature as one of perfect peace, in which men were in a position to
determine their action and dispose of their person and possession as they saw fit.
More so it was a state of equality between man and men no one was subject to the
authority or will of another. The state or nature was in turn governed by the law of
nature which taught men that all persons being equal and independent, no one ought
to harm another in his life, health, liberty or possessions. Everybody had the power to
execute the law of nature and punish offences against it with his own hand. Property
(that is life, liberty and estate was however insecure because:
(a) There was no (I) established law (ii) an impartial judge
(b) The natural power to execute natural law was out of proportion with the claim.
To remedy this flaw man entered into the social compact (contract) by which he
yielded to the sovereign not all his rights but the power to preserve order and enforce
the law of nature. The individual retained the natural rights to life, liberty and estate,
which were “inalienable rights of Man”. The supreme power, in Locke’s view, cannot
take away from any man any part of his “property” without his own consent. If it
deals arbitrarily improperly with lives and fortunes of the people, it violates the
essential conditions of the social contact and the trust relationship under which it
holds its power.
Locke advocated a separation of executive from the legislative power in order to
prevent tyranny and arbitrariness. And in the event of the legislative or executive
power attempting to make its rule absolute and to enslave or destroy the people, the
people could exercise their right of resistance or revolution so that natural law may be
re-vindicated. To Locke unlimited sovereignty is contrary to natural law. He therefore
postulated the following basic limitations viz:
(a) The sovereign may not rule by arbitrary decrees but through known law
administered by known judges.
(b) That sovereign power cannot be justifiably used in arbitrary fashion over the
lives and fortunes of people.
(c) The people may not be deprived of their possessions without their consent.
(d) The sovereign may not transfer the power to make law to other persons.

It should be added that Locke indeed championed the revolution of 1688-1689 and
that his version of the social contract greatly influenced the American Revolution of
1775 – 1781 as well as the formulation of the United States Constitution.
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Note however that Lockean theory of “consent” tacit and express without clear dividing
line between them justifies the criticism that “Locke leaves us with a hazy notion of
who has full rights of membership in a society”. Moreover his shift from “contract” to
“trust” in defining the status of the sovereign is somewhat confusing.

Louis de Montesquieu (1689-1755)

Montesquieu postulated that laws “are the necessary relations arising from the
nature of things. This “nature of things” manifests itself partly in universal and partly
in variable tendencies and traits of human nature.
Among the universal conditions of man’s existence in society he mentioned:
(a) The desire for peace.
(b) Satisfaction of certain primary needs such as food clothing and shelter.
(c) Attraction arising from sexes.
(d) Man’s inherent sociability.
Other “necessary relations” which are relative and contingent depends on such things
as geographical (especially climate conditions), religious factors and political structure
of a particular country.
He shared in common with other classical natural law jurists the view that law is
generally based on human reason” and that justice preceded positive laws by which
they were established.
His fame however, rests on his political theory of the separation of powers. He was of
the view that “every man invested with power is apt to abuse it and to carry his
authority as far as it will go”. To prevent that abuse it is necessary that power should
be checked by power. The safest form of government will be constituted where the
legislative, executive and judicial powers are separated. They should be constituted
that they hold one another in check. This view greatly influenced the fathers of the
American constitution. It was the combination of Locke’s theory of natural law with
Montesquieu doctrine of separation of power that formed the philosophical basis of the
American system of government.

Third Period
Jean Jacques Rousseau (1712 – 1778)
Rousseau (a Swiss) shared with the classical natural law jurists the belief in the
existence of “natural rights” but he sought the ultimate norm of social life in the
supremacy of a sovereign and collective “general will”.
By his social contract theory each individual alienates all his natural rights without
reservation to the whole community. Yet it appears the individual loses nothing for in
Rousseau’s view each man in giving himself to all, gives himself to nobody, and as
there is no associate over whom he does not acquire the same right as he yields others
over him he gains an equivalent for everything he loses and an increase of force for the
preservation of what he has”. What the individual has lost by the surrender of his
natural rights he will regain in the form of civil liberty and in the guaranteed security
of his possessions. Rousseau sought to justify the people’s sovereignty on the one
hand and the original and inalienable freedom and equality of all men on the other.
His work abounds in contradictions that he could be quoted as a champion of
inalienable individual rights as well as of absolute supremacy of the community, as a
nationalist – or as a cosmopolitan, as a defender of reason or as the apostle of instinct
and sentiment, as a democrat or as an autocrat.
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Essentially his argument is that freedom and equality of man were the basis of their
happiness, existent in primitive communities and lost in modern civilization. He
extols the direct sovereignty of the people, and against the representative democracy in
Parliament: Pollock thinks that Hobbes recognises only a pactum subjectionis. Locke
both the pactum unionis and subjectionis, Rousseau knows only a pactum unionis.
Rousseau is a paradox – “the supreme prophet and theorist of modern democracy and
yet the beginning of the road to totalitarianism”.
Lloyd observed that the “social contract” is a wholly formal and analytical contract
that can be used as a means of presenting political ideas. In Hobbes (or Bodin or
Grotius) it is used in defence of absolutism in Locke in support of limited
constitutionalism and it may be added in Rousseau for both and much more.

Eighteenth and Nineteenth Centuries

Decline of Natural Law Thinking
Natural law thinking undoubtedly made its greatest impact on legal development in
the hands of the social contract theorists. Credit for giving force and effect not only to
principles of Public International Law but also to the notion of fundamental human
rights (natural rights) goes in large measure to these theorists. Unfortunately, the
greatest contribution of natural law to legal development has turned out as its
unfortunate trait. For, most exponents of the social contract theory twisted the
function of contract in accordance with their particular ideology as to render it
discreditable as a matter of historical, positivist and utilitarian movements.
Furthermore, the association of the natural rights doctrine with the French
revolutionary upheaval gave the doctrine a revolutionary flavour. Even more, an
individualist conception of society by the natural law thinking of 18th Century was
giving way to collective conception stimulated by the rising tide of nationalism.
Again, the stupendous growth of natural science gave strength and emphasis to the
empirical method against deductive method. Lastly, the new and increasingly complex
European society demanded a comparative and sociological approach to problems of
society rather than an abstract one.

The idea of a universal law common to all mankind was vigorously refuted by Vico
(1668 – 1778) and Herder (1744 – 1803). Similarly Hume (1711 – 76), Adam Smith
(1723 – 90) and Miller (1735 – 1801) adopted a scientific approach in the study of
human society and consequently the social contractarian explanation of society.
However, the period is not completely lacking in natural law apologists even in
England. Mention may be made of Hume and Burke though their contributions to
natural law ideas made no significant impact.
Consequently, the common good requires a legal system. If any law is against the
common good or any of the basic values such law will lack the authority it would have
otherwise had. Lloyd has observed that Finnis tries “to construct a regime that would
be desirable to have in human communities”. It may be said that Finnis has somehow
integrated natural law within analytical jurisprudence but the relationship between
law and basic goods is not beyond doubt.
 13

NATURAL LAW AND CONTEMPORARY LEGAL PROBLEMS

The relevance of natural law to the solution of current legal issues may be discussed
under the headings namely:
(a) The Problems of Justice
The concept of justice is employed in two different senses. In its formal sense it is
internal to legal precepts. It is in this sense that we talk of justice according to law.
Justice in this sense demands that the law should be applied impartially. In some
cases, the method or mode of application of the law may itself be prescribed by statute
but in the majority of cases recourse is often had to judicial decisions at least in the
common law system for this purpose.
It is in this context that natural law notion has made its impact on the
administration of justice. The principle of natural justice is openly invoked in
supervising administrative and inferior judicial and quasi-judicial tribunals to ensure
that a party does not sit in judgement on matters concerning him – nemo judex in
causa sua or stand condemned without being afforded an opportunity to be heard:
Audi Alteram Partem.
However, in its broader and substantive sense the concept of justice is external to
law. It is in this sense that we talk of “unjust law”. For the earlier natural law
thinkers the concept of justice in this sense determines the validity of positive law but
for the modern jurists it becomes the standard to which positive law ought to conform.
While we can easily describe such laws that permit slavery racial and religious
discrimination and the economic exploitation of the masses as unjust and immoral
nonetheless the quest towards framing a priori a universal standard of justice has
hitherto met with failure. It may be sufficient to mention attempts made by just two of
the contemporary natural law thinkers in this respect.
In postulating his principles of just law, Stammler assumed the ideas of a community
of free willing members. The principles consist of two elements; in the first place
mutual respect of individuals for each other’s purpose and in the second place the
participation of each in the achievement of the common purpose. Stammler thus
deduced from his idea of society two set of principles of just law, the "Principles of
Respect” and the “Principles of Participation”.
The former demands:
1. That the content of a person’s volition must not depend upon the arbitrary will
of another.
2. Every legal demand can only be maintained in such a way that the person
obliged may remain a fellow-creature.
The latter also demands two conditions:
1. A person legally obliged must not be arbitrarily excluded from the community.
2. Every lawful power of decision may exclude the person affected by it from the
community only to the extent that person may remain a fellow creature.
On the other hand Rawls postulates two principles of “justice as fairness” to include –
1. That each person is to have an equal right to the most extensive basic liberty
compatible with a similar liberty for all.
2. That social and economic inequalities are to be arranged so that they are both (i)
to the greats benefit of the least advantaged and (ii) attached to offices and positions
open to all under conditions of fair equality.
 14
It may be sufficient simply to say that in addition to the ambiguity and obscurity
inherent in these principles their practical application as legal propositions can have
no more than very limited value.

(b) The Problem of Human Rights

Natural law provided the foundation upon which the modern science of International
law was built up by Gentili and Grotius. The crystallisation of natural law doctrine of
“natural rights” has ultimately given rise to the Universal Declaration Human rights by
the United Nations.
The entrenchment in the U.S. , Nigerian and other constitutions of fundamental
human rights is a clear testimony of the contribution of natural law philosophy to the
preservation of individual liberty. The judicial enforcement of the fundamental rights
provisions will, by and large, be influenced by natural law notions in Nigeria as it has
happened in the U.S.
As Friedman has cogently argued, “where the battle id fought in terms of fundamental
rights embodied in the written constitution and especially in a federal framework with
its delicate system of balances and counter-balances the natural law appeal will be
more direct and powerful than in a system which, like the British constitutional
system allows for changing ideologies through the simple interaction of legislative
change and public opinion.”

RELEVANCE OF NATURAL LAW TO NIGERIAN LEGAL SYSTEM

Influence of Natural Law on Nigerian Law may be summarized as follows:
1. Principle of Natural Law are openly invoked as the test of validity of legal acts
particularly in:
(a) Supervision of administrative acts
(b) Supervision of inferior judicial or quasi-judicial tribunals
(c) Recognition of foreign judgment
2. Natural Law ideas played a creative role in the development of the doctrines of
equity just as the development of the principles of unjust enrichment is largely based
on natural law notions
3. Exercise of court discretion such as imposition of sentences, award of custody of
infants and the granting of equitable remedies are largely guided by the judges’ moral
notions or appeal to reason.
4. The determination of judicial standards such as “due care”, “fair conduct”, the
repugnancy clause and the constitutional “reasonable justifiability” clause are also
guided by the judges’ notions of right and wrong.
5. The law of nature is the foundation upon which the modern science of
International Law was built up by Gentili and Grotious.
6. Islamic Law with its claim to immutability, universality and divine origin is in
essence a natural law product. Similarly, our customary laws contain a good number
of rules whose sources could be traced back to the injunctions of the supernatural or
belief in all-pervasive deities.
7. The entrenchment on the U.S., Nigeria and other constitutions in the developed
and developing world of Fundamental Human Rights provisions is a clear evidence of
the positive contribution of natural law thinking to law-making. The judicial
enforcement of the fundamental rights provisions will, by and large, be influence by
natural law notions in Nigeria as it has happened in the U.S.
 15
8. The Fundamental Objectives and Directive Principles of State policy as
contained in Chapter II of the Constitution of the Federal Republic of Nigeria 1999
appears to set the framework or criteria for making just law- a natural law of method
approach.
9. Lord Lloyd, a leading positivist conceded that “Natural law deflects our attention
from the historical fortuitous in human laws and institutions to the universal or near-
universal principles which underlie them. It shows us the need to study law in the
context of other disciplines; in particular, it makes us aware of the way in which moral
goals enter the law and play a part in its administration and in the adjudication of
cases.”
The search for a higher law gains force and momentum in time of disillusionment,
instability and revolt. For how can we honour with the name of law many of the
repressive and inhuman decrees of the Nazi regime? Should we be content with a
situation where the validity of the law will depend solely on the effectiveness of the
machinery of coercion of a dictator or a tyrant who has established himself as the
Austinian Sovereign or created an efficacious grundnorm of the pure theory approach?
Should we strive for a situation where the national law of any given state will derive its
validity from the principles of a brooding natural justice from the sky? Where shall we
draw the line between what the law in fact is and what it ought to be? The solution to
this problem does not appear to be in sight but the idea of entrenching human rights
in national constitutions is a good starting point if prevailing conditions are such as to
permit of their meaningful realization. It seems therefore that it is through
International treaties, Conventions, international customary Law or some form of
ideological control that attempts to preserve and promote individual liberty and
material welfare can materialise. At a time when military regime was the rule rather
than the exception, the hope for the preservation of individual liberty depended largely
in external pressure on national government.

As experience has shown, men will continue to appeal to a higher order in periods of
doubts and revolts. Consequently, the role of natural law as ideal moral precepts to
which positive law should strive to approximate will remain at least for the span of the
present civilization.
 16
JURISPRUDENCE AND LEGAL THEORY.
THE HISTORICAL SCHOOL
BRIEF NOTES
The age of rationalism and natural law in Europe culminated in the French
Revolution of 1789. The excesses of the revolution particularly its radical reshuffling
of the political and legal order were denounced notably in Germany and England
where emphasis was shifted on the values of tradition and gradual growth as law-
shaping forces. There arose in Germany a powerful nationalistic movement, which
was vehemently opposed, to the rationalistic and cosmopolitan principles of the
French Revolution. This movement found its expression in literature, art, and political
theory. In the sphere of law the movement was represented by the historical school of
law. The leading exponent of this school was Orl Von Savigny (1779-1861) whose
most distinguished pupil was Fredrich Puchta, (1798-1846). He was very critical of
Code Napoleon and sought to prevent the enactment of similar code in Germany as
was being proposed by Thibaut. Although Thibaut’s proposal provided the immediate
impetus for the rise of the historical school nonetheless, a combination of other factors
has paved the way. Among these are:
1. A reaction against unhistorical assumptions of natural law theorists.
2. The disruptive effect on traditional standards and authority of the French
Revolution (brought about by an attempt to found a legal system based on reason
without reference to past or existing conditions) weighted rather heavily with Savigny a
conservative noble man who developed a lasting hatred for the revolution.
3. The conquest of Napoleon and his ultimate defeat gave rise to nationalistic feeling
in Europe and a reaction against anything French.
4. The failure of the French Revolution to achieve its objective in the doctrinaire way
in which it had set about to achieve them.
5. It should be remembered that the direction of the historical school has already
been mapped out (if not already paved) by earlier writers such as Herfer, Burke, and
Montesquieu. Hegel and in particular Herder. It was indeed Herder’s original idea
that different culture and societies developed their own values from their own history,
tradition, and institutions. For him the quality of human life is predicted on plurality
of value consequently every society should be left free to develop in its own way, in
accordance with its national spirit (volksgeist).
It was Savigny’s thesis that law was not something that should be made arbitrary or
deliberately by lawmaker. Law, to him, was a product of “internal, silently-operating
forces”. It was deeply rooted in the past of a nation and its true sources were popular
faith custom and “the common consciousness of the people”. Like the language, the
constitution, and the manner of a people , law was determined above all by the
peculiar character of a nation by its “national spirit” (volksgeist). He was of the view
that certain traditions and customs grow up which eventually developed into legal
rules. It is only by a careful study of these traditions and customs that the true
contents of law would be found. Law therefore became identified with the opinion of
the people in matters of right and wrong. In the words of Savigny:
“In the earliest times to which authentic history extends the law will be found to have
already attained a fixed character peculiar to the people, like their language, manners
and constitution Nay, these phenomena have no separate existence they are but the
particular ties and tendencies of an individual people inseparably united and only
wearing the semblance of distinct attributes to our common conviction of the people the
 17
kindred consciousness of an inward necessity excluding all notion of an accidental and
arbitrary origin”.
Since law has no separate existence but merely a function of the whole life of a nation;
“law grows with the growth and strengthens with the strength of the people and finally
dies away as the nation loses its individuality”.
A nation to Savigny meant a community of people linked together by historical or
cultural ties. Not all nations’ boundaries are clearly defined. Even where the unity of
a people is clear there may lie within it “inner circles of variations such as cities and
guilds.
As the law becomes more complex in modern societies the popular consciousness
could no longer manifest itself directly but comes to be represented by lawyers who
formulate the technical legal principles. In doing this the lawyers remain an organ of
the popular consciousness. Legislation only came at the last stage.
Consequently the lawyer is therefore a relatively more important lawmaking agency
than the legislator.
Savigny had to come to the obvious conclusion that laws are not of universal validity
or application. Each people develop its own legal habits as it has its peculiar
language. On the particular issue of codification of laws he raised the following
objections.
i. That codes preserve unnecessary and unsuitable rules.
ii. That a code can never cater adequately for all problems that are likely to arise in
the future.
iii. That an imperfect code will perpetuate the follies underlying it.
iv. That codification would (rather oddly) highlight the loopholes and weakness of the
law and so encourage evasion.
v. That a code may introduce arbitrary rules in situation where the Volksgeist has
not developed precise rules and therefore add to the prevailing difficulties.
vi. Codification should be by preceded by “an organic, progressive, scientific study of
the law”. It only becomes necessary when legal development has attained its
fulfillment.
Perhaps the greatest achievement of the Savigny’s contribution is not only that it
postponed the codification of German law but more importantly it stimulated,
everywhere and particularly in Germany, detailed investigations into the primitive and
early periods of legal history. Savigny’s work on the whole was a welcome corrective to
the methods of the natural law lawyers. However, Savigny's basic thesis has been the
object of continuous criticism viz:
1) By praising instinct against reason and gradual evolution against deliberate action
he did not encourage creative energy and law reform.
2) His devotion to postulate resulted in his unwarranted veneration of past
institutions without regard to their suitability to the present. As observed by Allen,
Savigny’s doctrine has the unfortunate tendency “to hang traditions like fetters upon
the hands of reformative enterprise”.
3) Savigny greatly underrate the significance of legislation for modern society.
4) In the developing countries generally where social changes are so rapid and so
profound Savigny’s approach provides no guidance or raises any hope for legal
development.
 18

The Volksgeist doctrine leaves many questions unanswered.

1. It is erroneous to treat “common consciousness” as a discoverable thing. It is
common experience that a group of people, let alone, a nation hold different views on
different issues. The Volksgeist is an unhistorical a priori preconception.
2. The reception of Roman law in many parts of Europe nearly a thousand years letter,
as well as the reception of European laws in many parts of Asia and Africa is
inconsistent with Savigny’s idea of Volksgeist.
3. The Volkgeist doctrine minimizes the influence of individuals down the ages on legal
developments e.g. Justinian, Coke, Littleton, Lord Mansfield etc.
4. The volkgeist can at best have adaptive and sometimes abrogative effect on the law
in certain areas (e.g. family law and succession) but can hardly be creative element in
legal development.
5. Law has often played the role of a moulder of custom rather than the reverse.
6. Many customs derive from the force of imitation rather than the common
consciousness.
7. Many institutions (e.g. Slavery) were the product of the convenience of the ruling
class even in contradistinction to popular conviction.
8. Some rules of customary law (e.g. local custom) do not reflect the feeling of the
generality of the people.
9. Some important rules develop not as a result of imperceptible growth but through
conscious and violent struggles between conflicting interests within a nation, e.g.
trade union laws.
10. The volksgeist doctrine can have a disintegrating effect in a federation such as
Nigerian with a plethora of nineteen irreconcilable “volksgeist” with no room for
national unity and national integration through law.
11. Savigny and his followers did not face the question of how the volksgeist is formed.
His theory therefore seems somewhat incomplete and this opens the way to the
reintroduction of a natural law explanation.
12. Savigny’s devotion to the acceptance of a purified Roman law as the law of
Germany has been described by Lloyd as “perhaps the strangest of paradoxes in
Savigny’s thought”.

HISTORICAL SCHOOL IN ENGLAND

The chief exponent of the English history school was Sir Henry Maine (1822-1888).
He was strongly fascinated by Savigny’s historical approach to problems of
jurisprudence but he went beyond Savigny in undertaking broad comparative studies
of the unfolding of legal institutions in primitive as well as progressive societies. He
was opposed to the rationalizing theories of natural law and the utilitarian schools.
He applied himself to comparative study of early laws of Greece, Rome the old
Testament and the native law (Hindu) of India. In particular he sought to explain the
remarkable parallels between the development of the common law and Roman laws.
Instead of stressing the uniqueness of national institution or advancing the
“volksgeist” doctrine, Maine brought to bear a scientific urge to unify classify and
generalize the evolution of different legal orders. Consequently he initiated both the
comparative and anthropological approach to the study of law and history. His
sufficient research into the legal systems he studied led him to frame a bold (but
doubtful) hypothesis concerning the instrument of legal growth in various societies.
 19
Secondly, he was led to suggest stages of social development common to all people
which dovetail with his hypothesis of legal growth in various societies. Finally he was
tempted even more hazardously to generalize various broad trends of legal
development generally and in particular as to the relationship between the growth of
centralized government and the extension of liberty.
In his endeavour to discover a “law of historical development Maine distinguished
between “static” and “progressive” societies. The historical development of both types
is roughly the same and falls in his view , into four stages.
The first stage is that of law making by personal command believed to be of divine
inspiration e.g. Themistes in the Homeric poems, the dooms of the Anglo-Saxon kings.
The second stage occurs when those commands crystallize into custom.
In the third stage the rule is superceded by an aristocratic minority who obtain
control over the law e.g. the pontiffs in Ancient Rome.
The fourth and final stage is characterized by the revolt of the majority against the
aristocratic minority and the publication of the law in the form of a code e. g. The XII
Tables of Rome, Hebrew Decalogue, Greek law of Solon, the law of Alfred and Code
Hammurabi. In Maine’s view the great majority of human societies never proceeded
beyond this stage which marks the end of spontaneous social and legal development.
“It is indisputable” he wrote “ that much of the greatest part of mankind has never
shown a particle of desire that its civil institution should be improved since the
movement when external completeness was first given them by their embodiment in
some permanent record”.
Societies where development stopped at this stage are classified by Maine as “statics”.
On the other hand “ progressive” societies proceed to further develop their laws by
three methods viz:
(1) By fiction: ample evidence of which abounds in early English and Roman laws
e.g. The Roman fiction treating foreigners as citizens for purposes of litigation; of the
English fictitious “venue” so as to confer jurisdiction on the court.
(2) Equity: this was widely employed in Roman and English law to introduce some
flexibility to legal rigidity and reduce its harshness e.g. the trust concept, and unjust
enrichment.
(3) Legislation: unlike the time of Savigny legislation was commonly and widely used
at the time of main as an instrument of legal change and legal reform particularly in
England.
Alongside these doctrines Maine developed another thesis. His studies led him to the
conclusion that both in “static” and progressive” societies the legal condition of the
individual is determined by status. However the march of “progressive” societies
witnesses the disintegration of status and the determination of the legal condition of
the individual by free negotiation on his part. As put in his famous generalization:
‘the movement of progressive societies has hitherto been a movement from status to
contract”.
Evaluation of Maine’s contribution
Maine’s contribution to jurisprudence according to Pospisil, “lies not so much in his
specific conclusions as in the empirical, systematic and historical methods he
employed to arrive at his conclusions and in his striving for generalizations firmly
based on the empirical evidence at his disposal…… He blazed a scientific trail into the
field of law, a field hitherto dominated by philosophizing and speculative thought.
 20
Modern research over a wider field and with better equipment has corrected Maine’s
work in many points and departed from it at others.
By adopting a single line of legal development Maine’s approach smacks of Hegelian
Dialectics and Darwin’s evolutionary theory. The idea that early development passed
through the successive stages of personal command custom aristocratic monopoly and
code has been abandoned as drawing too simplistic a picture of legal development.
Primitive societies exhibit a wide range of institution e.g. hunting, pastoral and
agricultural. There is nothing like a single pattern as Maine has postulated.
Furthermore deliberate legislation has been found to have been an early method of law
making with fiction and equity coming in a letter stage. Even the codes were chiefly
collection of earlier legislation.
Finally in the modern age of standardized contract and collective bargaining a return
to status has been detected. In public affairs and in industry in particular the
individual is no longer able to negotiate his own terms. However, Maine would have
required a prophetic vision to foresee these developments. In any event examples of
prominence of status have been found associated with each of the following situations
as opposed to the revolutionary doctrine of Maine.
1. Part of the society places itself under the protection of a military strong segment
and this typically feudal relationship becomes hereditary e.g. The Fulani hegemony.
2. The fixing of group specialization on the hereditary principle e.g. Plato’s theory of
justice.
3. The domination by grant or grace of a politically or military strong authority or by
an individual’s seizure by strength or craft of the means of prestige or power,
domination by one part of the community over another is established e.g. Ife and
Modakeke by virtue of land grant.
4. Rigid status or caste systems have arisen from conquest of people by another,
differences, which separate the groups maturing into status subordination e.g. Hindu
Caste System.
5. Cultural practices and religious beliefs have reduced individuals or groups to
subordinate – status positions e.g. pagans in Muslim dominated countries or the Osu
system among the Ibos.
In any case it has now been established that primitive law was by no means as rigid as
Maine had supposed nor were people inflexibly bound by it.

HISTORICAL SCHOOL IN UNITED STATES

James Coolidge Carter (1827-1903) was the American apostle of Savigny’s legal
creed. His basic thesis was that habit and custom furnish their rules, which govern
human conduct. It was his view that judicial precedent was nothing but
“authenticated custom”. Essentially custom determines whether an act is right or
wrong and judicial decision does no more than putting the stamp of pubic approval on
a societal custom and evidence its genuineness. Thus the courts do not make law but
merely declare custom recognized by the society. Codes are no more than a re-
statement of pre-existing law rooted in popular consciousness. Like Savigny, Carter
got involved in unnecessary controversy over codification. Field’s proposal for the
codification of New York laws suffered a similar fate of delay like its German
counterpart as a result of Carter’s opposition using essentially Savigny’s argument
particularly that a code will impede the growth of the law. It is rather strange that
Carter could have been so faithfully devoted to Savigny’s Creed even after Maine’s
 21
works and after other anthropologists have discredited the historical Savigny’s
“popular consciousness” doctrine.
 22
JURISPRUDENCE AND LEGAL THEORY
ANALYTICAL POSITIVISM
In addition to human endeavours to make positive law attain certain ideals in the
desire to achieve social justice there is also the paramount need to do justice
according to the law. The latter demands that the law should be applied impartially
and consistently. It also demands that the law should be certain or reasonably
ascertainable. That means a clear distinction should be drawn between what the law
is for now and what it out to be. Any modern legal system whatever its ideology,
depends for certainty, clarity and efficiency on an adequate legal technique provided
by a coherent system of concepts and classifications. That indeed is the principal
function of analytical science of law. It seeks to develop a system logically and clearly
from its foundations.
We have earlier observed that the stupendous growth of natural science in the 17th
and 18th centuries gave strength and emphasis to the empirical method against
deductive method, which characterized natural law thinking. The failure of the
idealists to draw a clear distinction between the law as it is and the law as it ought to
be renders this approach utterly unsuited to the need of a fast expanding economy of
modern times. This analytical distinction with its allied doctrine of sovereignty and
imperative theory was developed by the following jurists among others.

Sovereignty
The concept of sovereignty was a dominant theme in political and legal thinking from
the 15th up to the early 18th centuries. The modern notion of the sovereign could be
found in the writing of Machiavelli (1469 – 1527) who conceived the state as an end in
itself. The principles of state government which must guide the ruler is the success of
the state. No organization or law stands above that of the state. Consequently the
ruler is not subject to any divine or natural law.
However, the formulation of a definite theory of sovereignty is credited to Bodin (1530
– 1596). In his view no community governed by law exists without some authority
whether residing in one person or several persons whereby laws themselves are
established and from which they proceed. As he put it:
“Find the person or persons whom the constitution of the state
permanently invests with authority under whatever name and you have
found the sovereign. Sovereignty is a power over citizens and subjects,
itself not bound by the law”.
The distinguishing mark of the sovereign is that he is not subject to the command of
any other person for he makes the laws for the subject, abrogates or amends the laws
already made. Nonetheless as he derives his authority from the constitution he is
bound by the constitution. The constitution itself must be in accord with the laws of
God and Nature in order to be binding.

The Social Contract

In any attempt to find the origin of the state, the sovereign and the law a number of
thinkers (notably of the 16th and 17th centuries) evolved the idea of a social contract.
That is, an idea that the institution of government derived from an agreement between
the ruler and the ruled. There is no agreement among the writers as to the contents
and consequence of the so-called “social contract”. Hooker (1554 – 1600) appears to
have blazed the trail of the modern notion of “social contract”. Hooker maintains that
 23
the contract by which the society set up its ruler was binding in perpetuity. This idea
was taken up and further developed by Grotius, Hobbes, Locke and Rousseau (among
others). Their view had already been discussed in the previous lectures.

Sovereignty and Imperative Theory

The concern of law as the command of the sovereign authority (which was implied in
the concept of sovereignty and the social contract theory) became a dominant school of
jurisprudence in England since the 19th century primarily as a result of the
contributions of Bentham and Austin.

Jeremy Bentham 1748 – 1832

Bentham was essentially a law reformer but he also addressed himself to legal
analysis. He designated his approach to legal studies as expositorial and censorial
jurisprudence. The former is the study of the law as it is and the letter is an art of
legislation and therefore deals with the law as it ought to be. We are here concerned
with the expository aspect of his studies. Had all his writings in this regard been
found earlier enough he would have enjoyed the pride of place given to Austin as the
English leading positivist of the 19th century.
Bentham defined law as an “assemblage of signs, declaration of a volition, conceived
or adopted by the sovereign in a state, concerning the conduct to be observed in a
certain case by a certain person or class of persons who in the case in question are or
are supposed to be subject to his power”.
He sees law as a command of the sovereign with sanction attached to the command
in case of disobedience. This sovereign was not above the law as he is neither
illimitable nor indivisible. Sanctions do not necessarily attach, in his view, to
individual rule of law but to the system of law as such. His concept of law was broad
enough to include administrative and domestic orders. His notion of sanction is not
limited to punishment but also include “reward”. It could be said to Bentham’s credit
that Austin’s pitfalls derived essentially from the area of disagreement with his master
(Bentham).
In Bentham’s view every law may be considered from eight different respect viz
source, subjects, objects, extent, aspects, force, remedial appendages and expression.
In discussing these “respects” Bentham not only founded the Imperative School of
jurisprudence but anticipated the American Realist School and touched on the
linguistic problem in law. His censorial (utilitarian) jurisprudence places him as one
of the forerunners of the teleological (sociological) jurisprudence.

Austin
Austin was fascinated by what he perceived as a “scientific” orderliness and logical
coherence and consistency of Roman law, which he had studied. He sought to provide
a framework for a similar arrangement of English law, which was at same time
somewhat confused and nebulous with its rules embodied in uncoordinated statutes
and judicial decisions. The basis of his legal analysis was built around the sovereign
and the expression of his wishes. Hence he defines law as “a rule laid down for the
guidance of an intelligent being by an intelligent being having power over him”. (See
Lecture 2 for Austin’s distinction between laws properly so called and laws improperly
so called).
 24
He was particularly concerned to divorce law of all ethical concepts, notions of
morality and all value – judgements, which were at that time the essential ingredients
of natural law philosophy. To distinguish “law strictly so called” from rules of morality
Austin postulated that:
“Every positive law or every law simply and strictly so called is set by a sovereign or a
sovereign body of persons, to a member of or members of the independent political
society wherein that person or body is sovereign or supreme”. Austinian definition of
law strictly so-called is, aside from the politically organised society, characterised by
four elements viz sovereignty, command, duty and sanction.’

Sovereign: This is defined as follows:

“If a determinate human superior, not in the habit of obedience to a like superior
receives habitual obedience from the bulk of a given society that determinate superior
is sovereign in that society and the society (including the superior) is a society political
and independent”.
Austin explains that the sovereign may be an individual or a body of aggregate of
individuals – in essence human beings. The sovereign is not himself bound by any
legal limitations whether imposed by superior principles or by his own law. Any
higher principles or self-limitations are merely guides, which the sovereign may
discard. Consequently constitutionally law is no longer law. Thus sovereignty has two
aspects – the positive and the negative.
On the positive side of sovereignty the bulk of the citizen must render habitual
obedience to a common superior. It is important to note that not all members of
society need render obedience neither need the bulk render obedience at all times.
Habitual obedience by the majority satisfies the proposition.
On the negative side, the sovereign must not be in that habit of obedience to any
other determine human superior. That is, occasional obedience to others is still
compatible with Austinian conception of sovereign. It follows that society with no
sovereignty will have no law “strictly so called”. (International and customary laws
cease to be law).

Some Comments
The reference to “habitual obedience” like Kelsen “grundnorm is an admission that
every legal system is ultimately founded on some social fact for which no legal
justification can be adduced. However, it is doubtful whether habitual obedience from
the bulk of the society is what the sovereign requires. As Hart has rightly observed
the concept of habitual obedience cannot explain why the citizen of today can be said
habitually to obey a sovereign long since dead. Surely it was obedience on the part of
the judges after 1889 that established the sovereignty of the Crown in Parliament in
Britain. It seems clear that Austin confused the de facto sovereign – the body that
receives obedience – with the de jure sovereign – the law making body. In Britain the
Crown receives allegiance from its subjects while the crown-in-Parliament is the
supreme law-maker. It is certainly difficult to locate the Austinian sovereign within
the Nigerian governmental structure.
 25
Attributes of Sovereignty
(a) Illimitable
That is, the sovereign is not subject to the law or under any duty. Consequently a
substantial area of constitutional law no longer consist of law but merely of positive
morality. It should be observed that:
i. Austin overlooked limitation through disabilities rather than duties.
ii. The exercise of sovereign powers may be limited by special procedure.
iii. Sovereignty may be divided in such a way that each component part has a
limited power to prescribe for the other and thus create legal self-bindingness on
sovereign.
iv. Limitations on the law making powers of the sovereign is not only desirable but
in fact conducive to democratic ideals in modern society.
(b) Continuity
This is, the sovereign as the source of law should always remain in existence.
Consequently, Austin thinks that sovereignty (during a dissolution of Parliament)
resides with the Queen, Lords and Electorate. The question is who on this view, is the
Commander and who is being commanded?
It should be stated that sovereignty as the source of legal direction does not require
the shackles of indivisibility, illimitability and continuity.

Command
According to Austin “Laws properly so called are a species of commands. But being a
command, every law properly so called flows from a determinate source… whenever a
command is expressed or intimated, one party signifies a wish that another shall do or
forebear and the latter is obnoxious to an evil which the former intends to inflict in
case the wish be disregarded”.
It is a requirement that the wish must prescribe a course of conduct as distinct from
conduct on one specific occasion. Thus a law that spells out the conditions for the
take-over of say the Igbeti Marble Industry by Oyo State Government will be no law.
Clearly then the distinction drawn between general and particular command by Austin
is logically unsupportable and correspond to no clear distinction in practice.
Comments
i. Olivecrona has observed that duties are “ought” propositions, which
happen to be phrased imperatively. It is inappropriate to suppose that such
phraseology to itself implies command.
ii. Buckland has pointed out that Austin probably had at the back of his
mind the English criminal statute. Even at that, commands are usually directed to
specified individuals, whereas the function of law is to regulate future conduct
indefinitely and to serve as a standard by which to judge deviance.
iii. In any case, there are laws which cannot be meaningfully described as
command at all e.g. declaratory statute, repealing statute, laws conferring immunities
and powers: law regulating private rights and the so-called laws of imperfect
obligation, which includes law defining concepts such as torts, crime, contract, etc.
iv. Command presupposes a commander. Never at any point in history could
we discover a person or group of person who has commanded the entire law of a given
country.
v. Again, the individuals who comprise the sovereign body have attained
their position by virtue of rules of law. Who then commanded these rules?
 26
vi. It has been observed (Dias) that it is artificial to pretend that any member
of Parliament believes that the law of the land has emanated from his commands for
the vast majority of the law existed before he was born. To attribute command to
people who have neither commanded nor believe that they are commanding is wholly
fictitious.
vii. It has also been pointed out that the actual command of the sovereign
only acquire the character of laws when certain procedures have been followed. The
question is whether such procedures are laws if so whose commands are they? What
is clear from the above analysis is the inadequacy of the command doctrine.
viii. Dias has observed that a sovereign is a sovereign within a “state” and
“state” is a legally defined organisation consisting of territory, population, government
and a measure of independence, external relations. Who commanded these
requirements?

Duty
Austin postulates that “Every duty properly so-called supposes a command by which
it is created and duty properly so-called is obnoxious to evils of the kind.
It is erroneous to reduce all legal rules to species of duty. Indeed law could itself
extinguish existing duty as it can confer privileges and immunities. Surely in the
sphere of civil law the imposition of a duty on an individual proposes the conferment
of a claim on another. Is the individual with the legal claim liable to duty by the same
law and at the same time? Such a proposition is logically indefensible. In any case,
as pointed out above, duties are merely “ought” propositions phrased imperatively and
does not presuppose a command as claimed by Austin.

Sanction
According to Austin – “Every sanction properly so-called is an eventual evil annexed
to a command”.
Austin’s sanction is defined exclusively in terms of evil and pain. It does not
contemplate the promise of reward.
Surely a legal system requires some form of sanction (actual or threatened) to make it
effective but it is demonstrably fallacious to suppose that every single rule of law must
necessarily have attached to it a sanction. What sanction is there to a rule that
confers rights, privileges and immunities? What of a law that merely provides facilities
for bringing about certain legal relations; what of declaratory and repealing statutes?
Obedience to law cannot be wholly explained in terms of sanction in the Austinian
sense. In the social services states guidance and assistance with its corollary of
promise of good may be important if not as important as sanction in compelling
obedience to law.
It has been suggested by Dias that Austin was seeking to provide a means of
identifying a law for the purpose of the moment but to link this with the means of
securing obedience is to confuse identification with functioning.
According to Hart established standard of behaviour justifies demands for
compliance even where there is no chance of the sanction being applied nor any fear of
it. It follows that the standard legitimize the use of sanction against lapses rather
than the reverse.
 27
It has been pointed out that sociologically the tendency of the majority in a society to
submit to the exercise of power by a dominating minority may arise from a mere
psychological tendency of submission.
As Stone has observed much of the legal regulation in the modern complex
economically organised society is by way of affording legal facilities whereby the
subject may pursue their legitimate objectives. Here, it is men’s pursuit of their own
objectives rather than either threat of evil which is the basis of law observance.
In terms of psychological inducement to conformity the most effective sanctions may
be those such as ridicule and ostracism which do not even proceed from the sovereign
at all.
Kelsen
Kelsen’s pure theory of law was essentially concerned with presenting a formal
structure of law so as to enable us understand the nature of law and state. To that
extent, he was essentially a positivist, that is, his theory was based on the law as it is
and not as it ought to be a feature he shares in common with Austin. For his theory
of law to be pure the study of law or the science of jurisprudence has to be shun of
irrelevant factors such as ethics, politics, sociology, psychology, history, etc. Again,
since the theory of law should be uniform, i.e. applicable at all time and in all places
(i.e. general jurisprudence) it has to be devoid of the variable factors mentioned above.
While Austin’s concept of law was derived from limited materials namely Roman and
English laws (and hence he ran into trouble outside this sphere) Kelsen had the
advantage of nearly a century of varied developments and consequently was able to
arrive at a conclusion which holds good over a very wide area.
The essential foundation of Kelsen’s system has been enumerated as follows:-
i. The aim of a theory of law, as of any science, is to reduce chaos and
multiplicity to unity.
ii. Legal theory is a science not volition. It is knowledge of what the law is,
not what the law ought to be.
iii. The law is a normative not a natural science.
iv. Legal theory, as a theory of norms, is not concerned with the effectiveness
of legal norms.
v. A theory of law is formal, a theory of way of ordering, changing contents in
a specific way.
vi. The relation of legal theory to particular system of positive law is that of
possible to actual law.
From these premises the pure theory of law can easily be understood.
To Kelsen, a knowledge of law meant a knowledge of norms and a ‘norm’ is a
proposition in hypothetical form, that is “if X happens then Y should happen”.
Consequently, jurisprudence consists of the examination of the nature and
organisation of normative propositions. Kelsen found the distinction between legal
and other “oughts” or “norms” in the fact that only legal “oughts” are backed by the
force of the state.
A “norm” is defined as an “ought” proposition. It expresses not what is or is not done
or must be, but what ought to be, given certain conditions. Its existence can only
mean its validity and this refers to its connection with a system of norms of which it
forms a part.
The preoccupation of law being with the prospect of disobedience rather than
obedience, in essence, it is the sanction that imparts law – quality to a norm. Whereas
 28
with Austin, sanction was something outside the law which merely impacts validity to
it with Kelsen sanction is itself an integral part of the hierarchy of norms e.g. for
murder a ‘norm’ prescribes capital punishment.
However, if a norm can only be derived from another norm can one continue the
derivation ad infinitum. According to Kelsen, there is always an ultimate norm on
which the others rest. This is the Grundnorm but Kelsen did not rule out the
possibility of plural Grundnorm but he asserts that in such an event they should not
contradict each other. In essence, the grundnorm is extra-legal since it does not rest
on another legal norm. The relationship of the Grundnorm to the other norms is one
of gradual concretisation. A dynamic system is defined as one in which fresh norms
are constantly been created on the authority of an original or basic norm. A static
system is one, which is at rest in that the basic norm determines the content of those
derived from it in addition to imparting validity to them.
However, the choice of the Grundnorm must be selected on the principle of efficacy
that is, that the legal order must rest on an assumption that is by and large
efficacious in the sense that in the main, people do conduct themselves in conformity
with it. On this analysis Kelsen came to the following conclusions.
1. That law and state are really the same thing envisaged from different aspects. A
legal order becomes a state when it has developed organs for the creation, declaration
and enforcement of law. In short the state is merely the personification of the legal
order.
2. The legislature, the executive and the judiciary are no more than norm – creating
agencies.
3. The distinction between public and private law virtually ceases within the hierarchy
of norms.
4. Kelsen found the whole essence of law in duty and not in right, since the legal
order, as a normative structure, merely operate so as to culminate in the application
of sanction for certain form of behaviours. He denies to this duty any inherent moral
contents whatever. Legal duty is simply what the law commands which has no
necessary relation whatever to the norms of ethics.
5. Kelsen rejected the traditional distinction between “natural” and “juristic” persons
since they are only the concern of law in so far as they consist of duties and claims.
6. The distinction between substantive and procedural law become relative with
procedural law assuming greater importance. It is the organ and process of
concretisation that constitute the legal system.
7. Kelsen stood on an unsure ground when he applied his theory to international law.
First he declared that the Grundnorm on international law postulates the primacy of
international law over national laws. If this is so it is doubtful whether such a
Grundnorm enjoys a minimum degree of effectiveness in reality: Julen v. Govt. of
Punjab, Park L.D. (1972) S.C. 139 at p. 181. Secondly, he found the element of force
in the international sphere in war and reprisals. But war is precisely what
International Law seeks to avoid by substituting peaceful negotiations. As Stone has
rightly observed “it is difficult to see what the pure theory of law can contribute to a
system which it assumes to be law but which it derives from a basic norm which it
cannot find”. Hart has described Kelsen’s basic norm of international law as “mere
useless reduplication”.
 29
Comments on the Grundnorm
1. The Basic Norm
A good deal of mystery surrounds the Grundnorm that requires to be carefully
unfolded.
First, the basic norm is postulated as the means of giving unity to the legal system
and consequently there will be only one basic norm. However, as observed by Allen in
reality the Grundnorm of any legal system is made of many elements and none of
these can be set up, without an extreme degree of arbitrariness, as the Norm of
Norms.
Secondly, the basic norm is no part of the hierarchy of the norms. It merely provided
the foundation for the entire legal order. It is itself extra-legal and in no way a part of
the law. The question is why does one need to go beyond the ultimate of the legal
order in search of a non-legal justification for the legal system? Lloyd provides an
answer by stating that:
“The trouble seems to be that in the interest of a rather specious unity, Kelsen seeks
to compel us to make a wholly unnecessary assumption. Because he declines to treat
the rule of last resort as the ultimate norms for which no further justification can be
sought he seeks to go outside the legal system itself to find some wholly extra-legal
justification in a fictitious hypothesis. But there is no need to do this at all”.
Thirdly, the grundnorm is presented as a juristic assumption an – hypothesis yet it is
required to enjoy a degree of minimum effectiveness. Consequently, it should exist as
a fact. How then does one assess the minimum degree of effectiveness and how can
the grundnorm be made to attract such effectiveness? To Kelsen such an inquiry
borders on sociology or simply ‘metajuristic’ and must be excluded from the province
of jurisprudence. If it gives Professor Kelsen any satisfaction, writes Allen “to call this
studies of law metajuristic we need not quarrel with him; the important consideration
is that unless the ‘pure juristic is supplemented by the ‘metaljuristic” it is of little
value to human life or even to human thought. Allen also commented that:
“Without the examination not only of law but of the implications of law as a
function of society the ‘pure essence distilled by the jurist is a colourless,
tasteless and an unnutritious fluid which soon evaporates”.
Fourthly, and perhaps more fundamental is the fact that this uncertain and
somewhat unascertainable Grundnorm that is in being and at the same time never be,
is supposed to provide validity to the entire legal order. Is it any wonder therefore that
Kelsen’s theory has been castigated as leaving us with the dry bones of the law
deprived of flesh and blood which give them life. According to Lloyd a legal system is
not an abstract collection of bloodless categories but a living fabric in a constant state
of movement.
Finally, the pure theory of law erected a pyramid of legal order whose justification
cannot be found in law. In effect the entire super-structure rests on an extra-legal,
(i.e. impure) foundation. Kelsen’s claim to “purity” therefore appears absurdly unreal.
It is only the contentless content of formal juridical logic that is free from ideological
stigma and can become pure.
General Comments
Kelsen’s reasoning has been described as austere, that, forcible and illuminating and
of a wholly dedicated intellect even his half-truths and manifest errors has leavened
decisively the development of jurisprudence thought. He was described by Roscoe
Pound in 1934 as unquestionably the leading jurist of the time. Kelsen has done
 30
much to free jurisprudence from the metaphysical mist with which it has been covered
at all times by the speculations on justice or by the doctrine of jus naturae. His claim
that he has created an impartial and universal science of law is justified though purely
in a formal sense. However, under the strict and severe logic of the pure theory of law
the traditional distinction between law and state, private and public law, natural and
artificial persons (and in somewhat oblique way) that of national and international law
vanished into thin air. The least that can be said is that Kelsen’s conclusions in this
regard do not correspond to what exists in practice. The whole scaffolding of
conception and constructions erected a priori, writes Allen, possesses no absolute or
permanent value from the point of view of actual operation of law, which is the sole
aim or proper business of a “positive” jurist.
While Kelsen appreciates the need for a legal system to attract a minimum degree of
effectiveness he does not consider it the business of the pure theory to investigate or
identify the factors that should bestow on the law this essential quality.
This leaves the science of jurisprudence, according to Paton, very pure but deprives it
of all interesting contact with life itself. Indeed what we obtain from this method is not
a theory of legal development but simply the formal principle of juristic thought. To
exclude the whole of sociology and ethics leaves jurisprudence but a mental exercise
in an abstract notion. If Kelsen premises are rigidly followed the result will be too
formal to be of service to jurisprudence but if the jurist goes beyond his premises the
method is destroyed.
Thus in a stable situation the pure theory is irrelevant but in period of crisis and
revolution when guidance is necessary it is useless. The pure theory therefore
remains an exercise in logic not in law.
Hart
Professor Hart a leading contemporary positivist debunked the idea that law is a
command of the sovereign and also criticised Kelsen’s ‘grundnorm’ theory. He
decidedly avoids a definition of law. Instead he put forward, what he considered the
components of a legal system.
To Hart, regulation of behaviour is by means of primary (duty-imposing) rules.
Societies which possess only these primary rules are, in his view in a “pre-legal”
condition.
They suffer three distinct drawbacks viz:
1. Lack of means of identifying the primary rules and their scope. This means can
be furnished by a secondary (power-conferring) rules of recognition.
2. Primary rules are static. To bring about desirable change there should be a
secondary (power-conferring) rules providing power to change the primary rules.
3. Primary rules function inefficiently for want of authoritative arbiter of dispute.
This can be met by yet another secondary (power-conferring) rules of adjudication.
Thus the primary rules acquire the character of a (mature) legal system through their
union with secondary rules. For Hart law is equivalent to “legal system”.
Rule of recognition is, in Hart’s view luxury found in advanced social system. In
simpler societies we must wait to see whether a rule gets accepted by the society as a
rule or not. On the contrary in a system with a basic rule of recognition we can say
before a rule is actually made that it shall be valid if it conforms to the requirements of
the rule of recognition.
However, Hart emphasised the “internal aspect” in all cases. That is, that people use
the rule as a standard by which to judge and condemn deviations.
 31
The rule of recognition is, according to Hart, not stated but its existence is shown in
the way in which particular rules are identified either by the court, other official or
private persons or their advisers. Even its acceptance rests on social fact.

Professor Hart is said by Dias to have brought to bear through his writings, the
training of a philosopher, barrister and jurist to the elucidation of jurisprudential
problems. His Concept of Law has been described by Lloyd as the most significant
post-war text in jurisprudence.
He has retrieved analytical jurisprudence from the arid wilderness of “command” and
“grundnorm” and brought it close to the reality of social fact of human society. By
proposing a minimum content of natural law he has almost bridged the ideological gap
between legal positivism and natural law theory. He has broadened our understanding
and knowledge of the nature of law in a way that is hardly matched by any other
analytical positivist.
It is therefore not a discredit to his great learning to point out some obscure issues in
his propositions.
First, the division of law into duty-imposing primary rules and power-conferring
secondary rules does not correspond to reality since the same rule may create power
plus a duty to exercise it or power plus a duty not to exercise it. Moreover some rules
abolish duty so that they are neither duty-imposing or power-conferring. Furthermore
secondary power-conferring rules may also be duty imposing.
Again, the acceptance of a rule of recognition as we have seen rests on social fact but
Hart does not concern himself with the reason why or the circumstances in which it
comes to be accepted. That leaves it an open-ended affair with the certain possibility
of moral and social input. The question then remains as to how positivist is Hart’s
positivism? In Dworkin’s view “what the law is … has to be determined with reference
to doctrines, standards and principles which do not derive their law-quality from a
rule of recognition.
 32
JURISPRUDENCE AND LEGAL THEORY
OUTLINE OF MARXIAN THEORY OF LAW
(AS FORMULATED BY MARX & ENGEL)
Marxism is a system of sociology, a philosophy of law and society and a political
doctrine all in one. It has served to measure existing institutions as well as a
launching pad for revolutionary change. It attaches primacy to the economic system
which, according to Marx, constitutes the “base” or “infrastructure” of society.
Everything else including political institutions, laws, religion ethics, etc, remains mere
“superstructure”. Perhaps, its more significant aspect is that it sought the cause of
social change in internal contradictions and conflicts in social system.
It is in one sense a variant of the historical approach as it sought to unfold a pattern
of evolution and in another sense it partakes of the sociological approach as it
concerns itself with the function of law in society. Marxism is essentially materialistic.
By basing the principle of development on Hegelian dialectics it may be described as
dialectical materialism though Marx himself defined his approach as historical
materialism.
Amongst the reasons for the rise and popularity of Marxism are:
(i) It sought to improve the condition of the poor and working class for whom it
provides new hope and encouragement.
(ii) The critical spirit of positivism has accustomed people to challenge existing
standard which Marxism sought to change.
(iii) Formal positivism was largely indifferent to the justice or justice of existing
condition of life.
(iv) The failure of religious ideals to stand the test of critical enquiry brought about
the substitution of materialistic idea in its place.
(v) It was revolutionary in purpose and therefore of special appeal to those who
yearn for a change in the existing political and legal order.
(vi) By employing economic facts in analysing political and social conditions it was
able to expose some of the social injustices that were concealed in the traditional
subterfuge of legal concepts, categories and Maxims e.g. freedom of contract, equality
before the law, right of property.
HEGELIAN DIALETICS AND MARXISM
Hegel has interpreted history as a process in which the absolute progressively unfold
itself revealing more of its true nature in later periods than in earlier. The dialectics
theory of union of opposites – provides Hegel a clue to this development.
To Hegel there is always a tension between the present state of affairs and what it is
becoming. It is through this tension that many progress towards truth was possible.
The result is that thesis and anti-thesis produce a synthesis.
The attraction of the dialectics to Marx is in its depicting society as full of
contradictions and that phenomena do not exist in isolation consequently they must
be studied in their movement and development. Marx invokes the dialectics to come
to a conclusion that capitalism is a transient phase in human development. He
rejected Hegel’s idealism for which he substituted materialism.
Hegel has depicted civil society as the clash of social forces to be transcended by the
universality of the state. The state was abstracted from these forces, social and
historical which created and conditioned it. Marx however views the separation of civil
society and state as a historical phenomenon the cause of which can be analysed. For
Hegel a person’s private position determines his political status. For Marx, his status
 33
was determined by his property relations, so that class differences of civil society
become political differences. The state’s claim to appear as the general interest was
nothing more than a mask for class interests.

MATERIALIST INTERPRETATION OF HISTORY

To Marx the nature of individual depends on the material conditions determining
their production. To understand man and his history therefore it is necessary to
understand his productive activity. Marx concluded that the principle governing all
human relations is to be found in the common end that all men pursue i.e. production
of means to support life and exchange of things produced. This he interprets as
“productive forces” (That is meaning the means of production, primarily the
implements of labour created by society, as well as people possessing production
experience and skill and producing material value). His account of social changes was
predicated on changes in productive forces which brought about new social relations.
For example, the hand-mill produced a society with feudal lords while the steam mill
produced society with the industrial capitalists. History therefore became vitualised
as a history of class struggles with the particular structure of the class at any given
time being determined by the mode of production. He saw the contradiction in
capitalism leading to increasingly acute conflict which only a revolution could resolve.
In the dialectics calculus, the struggle (or union) between labour and capital (thesis
and anti-thesis) is bound to produce a classless (or communist) society (the synthesis).
The primitive society, in Marx’s view, contained no antithesis within itself as long as
there was unequal distribution of commodities. When distribution became equal the
society was destroyed and split into classes that were patterned by the modern
division of labour and capital. The value of commodities then came to be governed by
the cost of the labour required to produce them. The place of the tribal society was
taken by the state which became the instrument of the stronger class. The inadequate
rewards (or less than full value) to the working class that supplied the labour provided
the basis for Marx’s labour theory of value and the charge of exploitation levied against
the capitalists. Capital, he asserts, is used by its owner to buy labour and create
surplus value.

DOCTRINE OF ECONOMIC DETERMINATION OF LAW - ECONOMIC

DETERMINISM
To Marx “the mode of production of material life conditions the social, political and
intellectual life process in general. It is not the consciousness of men that determine
their being but on the contrary their social being that determines their
consciousness”.
With economic factor as the “base’ or ‘infrastructure’ law, religion, ethics etc., become
“superstructure”.
Consequently, economic facts are independent of and antecedent to law. Law
becomes mere derivatives bereft of any social engineering potential. Human life and
society are founded on labour and on the production of material values.

DOCTRINE OF THE CLASS CHARACTER OF LAW

Law is depicted merely as an instrument used by the economic rulers to keep the
masses in subjection. It serves essentially as an instrument of domination. Marx’s
position on class, though not particularly clear nonetheless, his classification of
 34
society is based on the two-fold division of bourgeoisie and proletariat corresponding
to the capitalist and the working class. It is his expectation – prophetic in this regard
– that the working class will employ the law to eliminate the capitalists on the
establishment of the proletariat dictatorship. The stress on the use of law as an
instrument of class domination is probably an interpolation by Struchka.

THE STATE AND LAW

The state we are told came into existence as soon as there was unequal distribution
of commodities. Those having property sought to protect it. They invoked the
apparatus of law and state for such protection and to oppress and exploit the working
majority. The state is seen merely as an instrument of class oppression that is an
executive committee of the dominant class, and so is law. Consequently, law and
state become identified merely as instrument of oppression and exploitation by the
ruling class. That is, law is employed as a steady instrument of control by the have-all
over the have-nots. Even in the proletarian dictatorship law and state will remain as
instrument of compulsion until a classless society is achieved. Law therefore means
to more and no less than a series of economic reflexes in a class dominated society.
WITHERING AWAY OF LAW AND STATE
With the establishment of a classless (or communists) society there will no longer be
any domination or inequality. Consequently, the instrument of domination – law and
state – will wither away and be replaced with “an administration of things”. Of course,
the bourgeois state would have been smashed before a classless society is attained. It
is the proletariat dictatorship that will wither away since the power of the state must
disappear and governmental function will be transformed into simple administrative
ones. All the typical manifestation of the state – the bureaucracy and the judiciary –
will also disappear. Indeed the ultimate realisation of Hegelian idea of a state as
universal power implies, according to Marx, that once the state is truly universal it will
cease to exist as a differential criterion.
The doctrine of “withering away” of the law was no doubt clearly implied in Marx’s
writing but it was firmly established by Pasbukani’s. The doctrine of withering away is
now associated with the “coercive” law by contemporary writers in the communist
states. Rules of community living regulating the mutual relation of men will continue
to be required. It is also hoped that the time will arrive when the members or society
will comply with the required norms voluntarily and without the necessity of state –
imposed sanctions.
By Marx’s materialistic interpretation of history the most advanced industrial
countries should first experience revolution. However, he conceived the idea, in his
later writings, of the possibility of successful revolution in countries where the
majority of the population were peasants.
EVALUATIONS
There are two contradictory ideas involved in Marxist thought. On the one hand is
the prophetic and historicist side which foretells a period of doom and destruction but
which looks forward thereafter to a brighter dawn when man will be reborn in a new
era of peace and justice.
However, Marx’s idea that law was distilled out of economic order which gave rise to
it shed a new light on the nature of law and its deep roots in the kind of society within
which it operates. Moreover, this involves in many ways a deeper insight than that of
the historical school for it rested not upon a comfortable belief in the virtues of
 35
traditionalism but endeavours to seek out the real springs of human action and their
translation into existing institutions by an understanding of the working and
necessary social implications of economic structure of society itself.
CRITICISM OF MARX’S THEORY OF LAW AND STATE
Marxism though claimed to be based on a “scientific” approach appears vitiated at
every turn by illogicalities and unscientific conclusions.
First, causation is no longer regarded as an inexorable principle governing the
material world. Consequently, the efforts to ascertain the cause of social changes
might as well be misplaced. However, the conclusion of Marx and Engel that
economic principle is the sole or ‘ultimate’ cause of social changes and a valid
explanation for the evolution of law and state is an extreme – simplification. Economic
factor is, doubtless, relevant and important but so also are other factors like religion,
ethics, and political institutions etc. Traffic law, for example, is in no way based on
economics, neither are impulses such as anger, lust, revenge and jealousy (which the
law also take into account) always rooted in economics.
Secondly, the explanation of the evolution of society on the basis of class struggle
between the capitalists and workers can hardly stand the test of historical
investigation or rational analysis. Class struggle can only be rationally explained
when related to place and period of occurrence e.g. racial struggle in Nazi Germany
and contemporary South African, religious struggle in India that gave birth to the state
of Pakistan. No doubt, such class struggles have influenced the development of law
and society but they have not all been (nor do they need to be) rooted in economics. It
is also not clear why they should all culminate in violence. It has been shown that in
England change within the feudal system came from the feudal lords and not from a
class challenge to them. Why, in any case should labour and capital not complement
instead of contradicting each other? By the desire of Marx and Engel to bring about a
classless society they have introduced teleological (a wish-for end) consideration of
politics into their so-called scientific approach.
Again by lining his class struggle with the Hegelian dialectics Marx has made the
following unsubstantiated assumptions:
(a) That the dialectic interpretation of history is correct.
(b) That the conflict between “thesis” and “anti-thesis” is identifiable with “Capital”
and “labour” and
(c) That the “synthesis” will be the “classless society.
Why, if one may ask, should the progression end with classless society? As Dias has
rightly observed the Hegelian dialectics is an abstract juggle of words into which
anything can be fitted.
Furthermore, Marx picture of ‘primitive’ society appears idealistic. Anthropological
evidence has revealed that private property and institution like contract are found in
such societies. Historians have also shown that capitalistic attitudes and practices
existed in pre-industrial society and that ideology of capitalism had rural origin. Marx
has obviously made an incursion into natural law theory in this context, for his
assumption is wholly suppositious.
Again, whatever truth there might be in the statement that law as an instrument for
the repression of one class by the other it does not follow that such is or need
necessarily be, the sole function of law. Marx no doubt, failed to distinguish
sufficiently between the various uses to which law can and sometimes have been, put
 36
e.g. it can serve and indeed has served to restrain oppression by classes or individual
– statutes abolishing slavery and racial discrimination are glaring examples.
Marx’s doctrine of domination and exploitation of the workers by the capitalists does
not properly fit into contemporary social development where the “management
revolution” has split of ownership of the means of production from their control. This
development has produced a “paraproprietal society” in which control over property is
increasingly being severed from ownership and man’s place or role in society
determines his relation to things rather than the reverse. Modern economist, have
since abandoned Marx’s labour theory of value which has become inapplicable to
condition of mass production and still more so to modern technology.
Commencing on the suggestion that capitalism is a transient phase, and that every
nation will eventually turn communist Dias said that the Russian type of communism
requires a degree of regimentation of the masses the success of which inevitably
depends on the nature and temper of the people concerned, the more ignorant and
traditionally inclined to subservience the better the chance of success, the more
educated and independent the greater the difficulty.
Finally, in spite of the attainment of a classless society by Soviet Russia Khrushchev’s
proclamation and other communist states of Eastern Europe law and state have not
yet “withered away” and the prospect of such an occurrence is also not in sight.
Marxist approach was a determined attempt to do away with law but the practical
experience in Russia has only demonstrated the importance of law. Perhaps the
picture could roughly be put that in Russia there is a rule by law whereas in western
democracies there is a rule of law. It may be as argued by Lloyd, “that the Marxist
(State), like every other Utopia, is inherently unattainable”
 37
JURISPRUDENCE AND LEGAL THEORY
SOCIOLOGICAL JURISPRUDENCE
The rapid increase in population, the inequalities engendered by the industrial
revolution on an unprecedented scale, the involvement of the state in matter of health,
education, economics and other social activities produced a host of new problems the
solution of which traditional approaches to law, (analytical positivism in particular),
were forced according to Dias “into confession of mental bankruptcy”. The focus of
attention began to swing away from individual rights towards social duties and
brought in its wake an emphasis on the function which law fulfils in society. The
study of the function and functioning of law in societies has been the pre-occupation
of sociological jurists. This development was greatly influenced by the ‘invention’ of a
distinct discipline called ‘sociology’ by Auguste Comte (1798 – 1857). Legal thought
has since tended to reflect the trend found in sociology. Indeed sociology has
dominated legal thinking in the 20th century just as religion did in the middle ages.
Sociology, according to Comte, is the study of social order and social progress. It
includes two components, social statics and social dynamics, the former being the
theory of social order and the later the theory of social progress.
Sociological approach to law falls into two broad categories viz. legal sociology and
sociological jurisprudence. A legal sociologist has as his primary subject of study the
society with special emphasis on the part played by law or legal administration in
bringing about observable pattern of behaviour. That is, he is concerned with the task
as to how norms of decision influence or help to shape norms of conduct. He is
concerned with society as a whole and how legal administration works in it. His pre-
occupation is essentially descriptive on the other hand a sociological jurist is primarily
concerned with law and the tolls of the lawyer’s equipment with particular emphasis
on their function and functioning in society. That is, the manner in which law works
in society. He considers the laws as being prescriptive in their nature.
Both approaches are now being subsumed particularly in England under the title
“socio-legal studies”.
The differences of approach by sociologists have also produced corresponding
differences among sociological jurists. Nevertheless some common ideas are found in
their thinking viz:
i. The view that law is but one aspect of social control.
ii. A rejection of the view of law as a closed logical order – jurisprudence of
concepts.
iii. A shift of emphasis on “the law in action” as opposed to the rules presented in
the textbooks.
iv. A rejection of the ultimate theory of value as espoused by the natural law jurists
and the substitution of relativism.
v. Readiness to harness the techniques of social sciences and sociological
researches towards erecting a more effective science of law.
vi. A preoccupation with social justice.
vii. A preponderant emphasis on the law reform.
The standpoint of modern sociological approach can be stated as a total rejection of
the belief in natural selection achieved through Laissez fair in favour of man’s capacity
to play a conscious role in directing his social evolution. Hence the preponderant
emphasis on law reform.
 38
In defining the scope of sociological jurisprudence, Roscoe Pound, the most influential
exponent of sociological jurisprudence in modern times, stated that it should ensure
that the making, interpretation and application of law take account of social facts.
Towards achieving this end there should be as will be recalled.
a. A factual study of the social effects of legal administration.
b. Social investigations as preliminary to legislation.
c. A constant study of the means to make law effective which involves:
i. The study both psychological and philosophical of the judicial method.
ii. A sociological study of legal history.
iii. Allowance for the possibility of a just and reasonable decision of individual case.
iv. The achievement of purposes of the various law.
v. Establishment of a Ministry of Justice
(A Law Reform Commission)
The seemingly wide scope of sociological jurisprudence has brought about a re-
classification of earlier jurists. To this extent Dias has suggested four forms of
sociological jurisprudence viz:
1. There are inquiries which seek the social origins of law and legal institutions. They
are concerned with the content of the “oughts” and the factors that have, and are
shaping them. In this category we can place the Historical school as well as the
Marxian economic interpretation of law.
2. There are also examinations of the impact of laws on various aspects of society.
Ehrlich’s (1862 – 1922) theory of “living law” clearly illustrates this view point. Ehrlich
drew a distinction between norms of decision which correspond to what is traditionally
understood to be laws and norms of conduct which govern life in society. It is his
thesis that there will always be an inevitable gap between the norms of formal law and
of actual behaviour. The point he was trying to make was that the “living law” of
society has to be sought outside the confines of formal legal material in other words in
society itself.
As he put it “At present as well as at any other time, the centre of gravity of legal
development lies not in legislation nor in juristic science nor in judicial decision but in
society itself”.
To Ehrlich a statute which is habitually disregarded is no part of the living law. In his
view the scope of jurisprudence should be enlarged. It should concern itself with an
observational study of society since formal laws are only an adjunct of the living law.
3. There is the attempt to find social criterion by which to test the validity of law.
A notable jurist in this regard is Duguit (1859 – 1928) who postulated that the end of
law should be to bring about social solidarity. Any law not conducive to the principle
of social solidarity ceases to be law. Of course the idea of social solidarity derived from
interdependence of individuals in society is sound one but that every rule of law can
be geared or should be geared to that end is a different matter. Here we are being
confronted with a priori idealistic assumption of the Volksgeist type.
4. There are other inquiries, which are concerned with the task which law should
perform in society.
The result of these studies generally takes the form of prescription addressed to
persons who make and administer laws and not to members of society at large. This
aspect appears to be the major pre-occupation of modern sociological jurisprudence
and indeed it is the most influential studies in modern times particularly in America.
 39
Bentham’s utilitarian principle falls into this category. It is Bentham’s view that the
task of laws should be to bring about the maximum happiness of each individual, for
the happiness of each will result in happiness for all. For Bentham, man is governed
by pleasure and pain. Hence laws should seek to promote happiness and avoid pain.
It should be noted however that Bentham did not invent the utility principle. He took
it from others notably Hue but Bentham developed it in the minutest detail.
It is however not easy to see how a subjective criterion such as pleasure and pain can
be transmuted into an objective one. For one thing conduct is not loaded with
pleasure – or pain-giving qualities, these are dependent on individual reaction. It may
well be that Bentham confused causes of action and reason for action.
Nonetheless Bentham’s “felicific calculus” that is the balancing of individual interest
with communal interest was destined to play an important part in modern theories of
sociological jurisprudence. Again Max Weber (1864 – 1920) made a detailed and
penetrating analysis of the distinction between rational and irrational methods of law
making from the historical and sociological points of view.
On the other hand Kohler’s main thesis is that law must always accord with the
purpose and aim of each form of civilization in human society.
Perhaps the most influential jurist on the subsequent course of the development of
sociological jurisprudence is Jhering (1818 – 1892) who has been described as the
father of modern sociological jurisprudence. He postulated that the success of the
legal process was to be measured by the degree to which it achieves a proper balance
between competing social and individual interests. He however gave very little
indication of the process to achieve this balance.
It will be relevant to mention within this context the great French sociologist Emile
Durkheim (1858 – 1917). It was his thesis that law was the measuring rod of any
society. In his view there are two basic types of social cohesion viz mechanical
solidarity to be found in homogeneous societies and organic solidarity which was
found in more heterogeneous and differentiated modern society which rest on
functional interdependence produced by the division of labour. These forms of
integration are linked with two types of law viz. repressive and restitutive. Law is
essentially penal in society based on mechanical solidarity. However, with increased
differentiation society reaction to crime becomes a less significant feature of the legal
system and consequently restitutive sanction becomes the main way of resolving
disputes. Modern opinion tends to suggest the very opposite of Durkheim’s thesis.
That is, repressive law is also absent in the simplest societies but increases in
importance in modern nation states.

Benjamin Cardozo
He was one of the American greatest judges of his time. He stressed the necessity
was of judicial alertness to social reality. In his view “the judge must often weigh
conflicting interests and make a choice between two or more logically admissible
alternative of decision. In making this choice the judge will necessarily be influenced
by inherited instinct, traditional beliefs acquired conviction and conceptions of social
need. He must balance all the ingredient, his philosophy, his logic, his analogy his
history, his actions, and sense of right and the rest and adding a little here and taking
out a little there must determine as wisely as he can which weight shall tip the scale”.
 40
Roscoe Pound 1870 – 1964
Lloyd has rightly observed that it is in the writing of Roscoe Pound that the most
influential exposition of American sociological jurisprudence is to be encountered.
It should be pointed out however that the expensive character of American society,
its enormous material wealth and its enchantment with scientific technology gave
currency to the prevailing belief that the basic problem was one of adequately
controlling and distributing the national wealth.
William James has postulated that the guiding principle for ethical philosophy must
be to satisfy at all times as many demands as we can. Pound, influenced by this
pragmatic philosophy and leaning heavily on Jhering and on the American sociologist
of the early twentieth century sought to develop a distinctive American sociological
jurisprudence.
As he put it:
“During the nineteenth century the history of the law was written largely as a
record of continually increasing recognition of individual rights often regarded
as “natural” and absolute. In the twentieth century this history should be
rewritten in terms of a continually wider recognition of human wants, demands
and social interest”.

Pound defines “interest” as claims demands or desires and classifies them as follows:
a. Individual interests which concern:
i. Personality (e.g. Honour and Reputation and Privacy)
ii. Domestic relations (e.g. parents, children husbands and wives).
iii. Interest of substance (e.g. property and freedom of association).

b. Public interest comprising:-

i. Interests of the state as a juristic person (e.g. integrity and freedom of action of the
state’s personality and claim of the state as a corporation to property acquired and
held for corporate purposes).
ii. Interest of state as guardian of social interests.

c. Social Interest: These appear the most important. Indeed interest in category (a)
can also be stated in form of social interest and category (b) (ii) overlaps with them.
They comprise social interest in
i. General Security
ii. Security of Social Institutions
iii. General Morals
iv. Conservation of Social Resources
v. General Progress
vi. Individual life.
These interests are secured by the device of “legal personality” and the attribution of
claims duties power and immunities. The remedial Machinery behind them aims at
punishment, redress or prevention.

Social Engineering
Pound conceived law as a “technology” as opposed to social science hence the social
engineering task of law. For Pound the law is an ordering of conduct so as to make
 41
the goods of existence and means of satisfying claim go round as far as possible with
the least of friction and waste.
In his own words: “For the purpose of understanding the law today, I am content
with a picture of satisfying much of the whole body of human wants as we may with
the least sacrifice. I am content to think of law as a social institution to satisfy social
wants – the claims and demands and expectation involved in the existence of civilized
society – by giving effect to as much as we may with the least sacrifice so far as such
wants may be satisfied or such claims given effect by an ordering of human conduct
through politically organized society. For present purposes I am content to see in legal
history the record of a continually wider recognizing and satisfying of human want, or
claim or desire through social control, a more embracing and more effective securing
of social interest, a continually more complete and effective elimination of waste and
precluding of friction in human enjoyment of the goods of existence – in short, a
continually more efficacious social engineering”.

Values
It is Pound’s thesis that every society has certain basic assumptions upon which its
ordering rests although these are often implicit rather than expressly formulated.
Certain of these assumptions may be identified as the jural postulates of the legal
system. That is, as embodying its fundamental principles. Pound indeed
endeavoured to state what these are for existing Western society. He also recognized
that they are not static but may change as society develops new needs and new
tensions. Postulates may in fact conflict but Pound does not give much detailed
attention to the way one conflicting interest is to be compared with another. However
he did indicate that if such an interest is stated in its social aspect then the other
should also is similarly stated as one cannot balance an individual interest against a
social interest.
Consensus Model of Society:
To Pound law represents the consciousness of the whole society. Consequently his
thesis is based on a society that is monogamous, static and cohesive with a shared
value, tradition and common awareness. That certainly was not true of American
society. In deed most writing in sociology has now departed from the ‘consensus
model’ of law and embraces a conflict model.
Evaluation
Pound has demonstrated more than anyone else the vital connection between laws,
their administration and the society. By highlighting the existence of varied and
competing interests and the need for adjustment between them Pounds work is bound
to have enduring value. Nevertheless some aspects of his legal proposition are not
particularly satisfactory.
First the engineering analogy was not substantiated and is likely to mislead. How
does one determine the “Waste and friction” in relation to the conflict of interest?
There is no objective method of ascertaining the value or importance to be allotted to
each interest. Consequently the ‘social engineering’ may consist in no more than
value assumption.
Second the process of balancing competing interest is not as easy as we are made to
believe. What matters is the yardsticks or ideal with reference to which the interests
are measured to determine their relative importance. Whereas the choice of idea or a
choice between two ideas is a matter of decision.
 42
The balancing formula is misleading. There are no judicial scales for weighing one
interest against another or determine the relative importance of one interest over the
other than the yardstick with reference to which they are measured.
Pound assumed the claim pre-exist law but often claims are the consequence of the
law.
Besides the process of recognizing claims if empirically undertaken will put the law
behind social behaviour if pre-determined becomes purely conjectural. It should
remain purely a matter of policy.
In any case lists of interest are only the product of personal opinion, different writers
have presented them differently. Consequently the listing of interest as a guide to the
administration of law is unhelpful.
Finally the balancing of interest can hardly produce national unity in a situation
where there are minorities whose interest are irreconcilable with those of the majority.
Pound’s writings have exercised profound influence on the evolution and
development of sociological jurisprudence. However sociological jurisprudence did not
end with Pound just as it did not begin with him.
Selznick has identified the distinct stages of development of sociological
jurisprudence.
The first he categorized as the pioneering stage when the task of law in human
society was identified as one of “social engineering”. Consequently a programmed of
action to gear individual and social needs to the values of Western democratic society
was attempted. It was an era of “generalized (grand) theories” with little empirical
research undertaken by lawyers as against sociologist or academic jurists.
Consequently the era provided the theoretical context for an understanding of law in
society.
Pound was the prime mover of the development of this stage with the little if any
empirical research. Pound relied more on an imaginative use of case-law and
statutory materials than on sociological investigation as such. The modest empirical
research done by the realists and the works of some continental European jurists
complement Pound’s efforts.
The second stage is characterized by a concern for method. The jurists of this era got
interested in the techniques of sociology, the mechanics of social survey, the use of
statistics and other necessary technical skills. On the whole these jurists were
content to survey narrower problems and achieve less far-reaching conclusions.
The third as anticipated by Selznick is when sociological jurisprudence would develop
on “intellectual autonomy and maturity”. Equipped with the necessary skills the jurist
can then return to some of the theoretical questions posed at the onset and provide
answers to such questions as the function of law, the role of legality and the meaning
of justice. It is only at that point in time that the sociology of law would emerge.
It is Lloyd’s view that the works of Lass well, MacDougal, Parson and Stone represent
the second stage.
Lloyd finds the third stage being accomplished by the contemporary works on
sociology of law. This covers numerous works including that of Selznick himself,
Friedman, Amber, Chambliss, Schurz and Skolnick just to mention a few. The
emphasis now on the importance of placing law in its social context of using research
methods, or recognizing that many traditional jurisprudential questions are empirical
in nature and not conceptual. The pervasive theme is the gap between the law “in the
book” and the law “in action”. This gap though identified and described is hardly
 43
explained. The studies invariably lacks theoretical underpinning. The goal tends to
be the improvement of the legal system rather than to construct a theoretical
understanding of the legal system in terms of the wider social structure without which
the work will be considerably hampered. Lloyd however finds this hope somehow
fulfilled in the work of Unger.
Unger identified three types of law – customary, bureaucratic (or regulatory) and legal
order (or legal system). It is his thesis that changes in society’s legal system from one
type to the other are intimately related to changes both in its organization and
consciousness. For a legal order to exist no group must occupy a permanent
dominant position or have an inherent right to govern. Another condition is the
existence of group pluralism and the belief in higher law.
Unger believes that the future lies in a return to customary law. Whether or not one
agrees with Unger’s thesis and conclusion it cannot be denied that his treatment of
evolution of law and its types depicts an admirable combination of historical research
and philosophical argument.
 44
JURISPRUDENCE AND LEGAL THEORY
THE REALIST MOVEMENT
BRIEF NOTES
THE AMERICAN REALIST MOVEMENT
The discrepancy between the form of law and its theoretical logics on the one hand
and its sociological reality on the other, the multiplicity of the state system of court
with their innumerable precedents coupled with the social life of the country combined
to provide the United States with richer materials than any other jurisdictions for the
study of law as it works in practice.
Two great jurists stand out as the mental father of the American Realists Movement
namely Chapman Gray and Oliver Wendell Homes. However, the leading exponents of
what the realist movement is all about are probably Karl Llewellyn and Jerome frank.
(Of course the list of Realist Jurist is almost endless). How the rule of law works, not
what they are on paper is the core of the realist approach to legal problems. to
achieve this objective they have turned to economics, criminology, general sociology
and psychology which they sought to utilise for the science of law. To study law as it
works or functions means investigating the social factors that make the law on the one
hand and the social results of law on the other. In a wide sense Realist Movement
represents a sociological trend in jurisprudence. Their concern however is with law
not with society. According to Dias, the Realist furnish an appendix to the work of the
sociologists. The latter investigates values and forces that provide the motive power
for the working of law as instruments of social regulation. But a study of values alone
will not explain the view which particular judges are likely to take of them nor the
degree of importance they may individually attach to one value or another. It is here
that the realists have uncovered the innumerable personal and other factors that on
occasions determine judicial choice. “The Realist movement may be characterized as a
radical wing of sociological school. However, the movement is not composed of a
group of men with identical creed and a unified programme. The realists agree only in
negations and scepticism, differing among themselves as much as with outsiders.
Within the realist movement there are great differences, extremists and moderates”.
Sociologist jurisprudence according to Roscoe Pound “should ensure that the
making, interpretation and application of law takes account of social facts. Toward
achieving this end, there should be:
(a) A factual study of effects of legal administration.
(b) A social investigations as preliminaries to legislation.
(c) A constant study of means of making laws more effective, which involves the
study of both psychological and philosophical of judges’ method, sociological study of
history….”
It is the study of judicial method that has occupied the central position in the realist
approach. It is important to stress that the realist movement is not a philosophy of
law. It is a modern method to find out what the law actually is as opposed to what it
ought to be. Its distinctive feature is the stress that it lays on factual studies of the
behaviour of judges. To understand what law is, one should be able to predict how
judges decide cases.
As put by Justice Homes “the prophecies of what the court will do in fact and nothing
more pretentious are what I mean by law’.
 45
“What these officials do about dispute,” writes Frank “is to my mind the law itself”.
That is, what judges, attorneys, police, prison official actually do about cases becomes
the law itself”.
Consequently, law (i.e. the decision of judges) becomes a product of ascertainable
factors. Included among these are the judges’ personalities, their social environment,
the economic conditions in which they have been brought up, business interests,
trends and movement of thought, emotions psychology and so forth. The influence of
personal elements in judicial decisions is not novel but the decisive significance that
the realists accord those factors is undoubtedly innovatory.
Gary in particular drew a distinction between law and sources of law. The former is
what the judges decide. Everything else including statues are only sources of law
until interpreted by the court. Pushed to its logical conclusions this assertion implies
that even a judicial decision can only be “law” as between the parties in the instant
dispute and thereafter becomes a source of law since everything will depend on the
interpretation put on it in a latter decision. No wonder that a critic had to say “law
never is but is always about to be. It is realised only when embodied in a judgement
and in being realised it expires”.
The justification for the Realist standpoint is not far to seek. The multiplicity of
jurisdictions resulting in different laws and rules give the judges especially the
Supreme Court, a role to unify the various laws by interpretation. Frank gave two
instances. First, U.S. Supreme Court in 1917 was equally divided on the question of
the validity of a certain statute. In 1923 the court by a majority declared it invalid.
The question is what was the law between 1917 and1923 and also thereafter?
Secondly, the Kentucky State court took one view of the law of Kentucky on a
particular point while the U.S. Supreme Court took a different view of the same law on
the same point. The question as to what was the law would depend on whether it was
being asked to the Supreme Court or the Kentucky Court. Another example has also
been given by Friedman of the U.S. Supreme Court’s attitude towards U.S. Social
legislation since the replacement of judges during Roosevelt’s presidency.
Can one fail to note the vacillations of the high court of Australia between
Commonwealth supremacy and state immunity, between a laissez-faire interpretation
of the Australia Constitution and also interpretation more favourable to economic
planning? Back home the liberal interpretation placed by our Supreme Court under
Ademola C.J.N. on the rights to own property was not extended to right to personal
liberty.
All this goes to show that the law in books (i.e. statutory law) sometimes, if not often,
differs from its actual application by the courts. This indeed is what the “rule
skepticism’ is all about. “For instance Karl Llewellyn once wrote “ the theory that
rules decide cases seems for a century to have fooled not only library ridden recluses
but judges”.
Putting it rather emphatically Jerome Franck wrote, “Rules of law are not basis of
judges’ decision. Judicial decisions are conditioned by emotions, instinctive hunches,
prejudices, tempers and other irrational factors”. However, some realists went a step
further to doubt the certainty in the judicial ascertainment of facts. These are the
“facts-skeptics”.
For instance, Jerome Frank (shifting ground to a fact–skeptic) wrote:
There may be perjured witnesses mistaken in their observation of the facts as to
which they testify or in their memory of their observations, missing or dead witnesses,
 46
missing or destroyed documents, crooked lawyers, stupid lawyers, stupid jurors,
prejudiced jurors, inattentive jurors, trial judges who are stupid or bigoted and biased
or fixed or inattentive to testimony”.
He went to add that “judges (or jury) have a virtually
Uncontrolled and virtually uncontrollable fact discretion
…that is , the power to chose whish witnesses stories
are to be accepted as correct”.
In summary the achievement of the results of the Realists may probably out weight
their weakness. Their contribution lies in their efforts to bridge the wide gap, which
exists between legal theory and the law in practice. Law schools in the U.S. have
moved closer to the profession and greater emphasis is now laid on practical work
rather than theory. By their insistence on the law as a means to an end they have
revealed the true function of the law in society. They have brought a scientific spirit of
inquiry and a healthy skepticism into legal studies. Perhaps their most important
achievement is that they have widened the field of the legally relevant by linking the
law with sociology, economics and psychology thus bringing the study of the law to
what it was before logical positivism set in with its value-destroying analysis.
Criticism of the Realist Approach
In a system like the U.S. (and Nigeria for that matter which leaves considerable
independence to the judiciary), the focus of attention will inevitably be placed on the
judges but the assertion that only judicial decisions alone constitute the law as
opposed to statute has a deceptive simplicity. Its logic can be likened to saying
religion is what the churches preach; medicine is what the doctors prescribe and that
art is what the artists do. The agents may not do what they are supposed to do. To
define law in terms of what a judge may choose to do at any moment is to put us at
the mercy of the whim of individual judges and to deny the usefulness of the lawyer.
Suppose it becomes clear in advance that a person who actually committed armed
robbery, for example, would be acquitted. If law is what a court does or a prediction of
what it will do in fact would it be said in the instant case that armed robbery is no
longer a crime.
The law is not what the court administers but the courts are the institution to
administer the law. The realists have combined in the term law, the administration of
justice with the rule of law themselves.
Equally deceptive is the assertion that the personal factors rather that the rules or
facts play the decisive role in judicial law making. The realists might have succeeded
in dramatizing decision but the pressure of rule and other impersonal factors play a
much more decisive part than the Realists will make us believe. As argued by
Friedman the large majority of legal decisions and other practical problems are
matters in routine in which precedent and the reliance on analytical rule is sufficient
to meet the situation.
The idea of devising a scientific and objective method of predicting the decisions of
judges is incapable of attainment. An accurate prediction of the judicial decisions will
depend on the consistency of judges’ attitude to value but people ‘s attitude change
with age and experiences.
Again, the rule by virtue of which judges assume judicial authority can hardly be the
product of their interpretation. If the Realist decides to deny such rules the character
of law the whole issue may resolve itself to one of semantics.
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Secondly, countless legal transactions are undertaken daily by the citizen very, few of
which ever reach the courts, and that only when something goes amiss.
The law has regulated our relations, for example, with bus owners, shopkeepers,
cinema owners, and doctors without our feeling uncertain about our rights even if
indeed we have though about them all. To demand that all married couples should,
for example, institute action so as to ensure that they are legally married is, to say the
least, unrealistic realism.
Again as argued by Dias, a denial that certainty in law can be achieved through rules
is no reason why these may not be called “law”. The assertion that statutory law is
not “actual law” until it has been the subject of judicial decision amounts to a change
in the accepted meaning of the word “law”. In this way it would involve re-writing
textbooks and reports to no purpose.
In the developing countries generally where many decisions of the superior courts are
never reported let alone those of the inferior courts the realists’ project can hardly
take-off.
(B) SCANDINAVIAN REALISTS
Two movement of thought “may be discerned in any inquiry into the realist approach
to law, namely the American realists and their Scandinavian counterparts. These two
group of legal writers share a straight forward commonsense approach to problems of,
and about, law and toward that end laid a great emphasis on “fact” which legal rules
are designed to regulate unlike the theory of the law expounded by Kelsen which
avoided and eschewed sociology and psychology and all other “extra-legal”
phenomena, the realist interpretation of law is predicated on the basic premise that
these extra legal factors, are unavoidable in any analysis of the concept of law.
Indeed, the emphasis of the realists is on these extra-legal considerations.
This refusal to extricate “law” from social and other factors stems from the realists’
devotion to facts and nothing but facts. This perhaps is the extent of the similarity
between the approaches of the two movements.
American Realists are practicing lawyers or law teachers who seek to approximate
legal theory to legal practice. In the Scandinavia, a group of jurists has risen who
address themselves to the same problem with the training of philosophers.
The American Realists are not much interested in general theorizing; about law even
though they share with the Scandinavian the feeling that rules do not decide cases but
they do not altogether reject the normative aspect of legal rules. What they are mainly
interested in is the practical working of the judicial process whereas the
Scandinavians are more concerned with the theoretical operation of the legal system
as a whole.
Hagerstrom (1868- 1939)
The Scandinavian Realist Movement looks to Hagerstorm as its spiritual father even
though the protagonists now best identified with the movement are Olivecrona,
Lundstedt and Ross.
Hegerstrom denies the existence of objective values. Thus there is no such things as
“goodness” or “ badness”. The word represents simple emotional attitudes of approval
and disapproval respectively towards certain facts and situations. It is only language
form that has given them objective existence. So the word “duty” only expresses an
idea, the association of feeling of compulsion with regard to a derived course of
conduct. It is useless, he argues, to speak of rights in dissociation from remedies and
enforcement measures. He therefore denies the possibility of any science of “ought”.
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All questions of justice, aims and purpose of law are matter of personal evaluation and
not susceptible to any scientific process of examination. Hence many of the
traditional problems of legal philosophy become illusory and must be replaced by an
examination of the actual use of legal term and a psychological analysis of the mental
attitudes involved.
The concept of classical Roman Law were to him rooted in magical beliefs. It is
probably true that adherence to form and ritual is rooted in word-magic but how far
Roman Law in the classical period should be interpreted along such lines in a matter
on which opinion should be reserved.
However, Hagerstrom’s idea was developed by other writers in explaining “the”
binding force of law.
OLIVECRONA.
Olivecrona refrained from defining law instead concentrated on “a description and
analysis of the facts”. The fact of the law must be examined first.
The validity of law was approached from the angle of its bindingness. Law, it is said,
has “binding force” in so far as it valid, and invalid law is not binding.
There is no such thing as “the” binding force behind law” he asserts. Natural law
jurists, derived it from natural law, others derived it from the consent of the governed.
These conclusions, he maintain, cannot be substantiated. The “will of the state”
approach is a myth. There are no such individual or group in whom the binding of law
resides. No individual or group of individual could be said to have “willed” he law let
alone its binding force. It does not lie in sanction since there are sanctions in other
situations that are non-legal. A person gets, burnt if he puts his hand in fire. There is
no such binding rule that he should not put his hand in fire. Conversely, law is
treated as binding even when unpleasant consequences will not follow. Olivecrona
rejects the idea of ‘the’ binding force of law as illusory and meaningless. It is not an
observable fact. The binding force of law is a mirage of language. It “exists” only as an
idea in individual minds. Most people have a feeling of being bound by the law, which
is quite different from saying that there is some impalpable binding force existing
somewhere outside the mind. It is these feelings of being bound by the law that has to
be explained.
He concludes that the feeling of being bound stems from the psychological
associations connected with this mode of expression by certain agencies. The picture
of law which emerges is of patterns of conduct in imperative form which are
distinguished from other imperatives by virtue of the nature of the feeling of being
bound that is associated with them. This feeling is not the same with regard to any
kind of imperatives. The feeling of being bound by these pattern of conduct that are
‘law’ is psychologically associated with certain agencies when they follow certain
procedures. Law therefore is a set of independent imperatives by these agencies. It
produces a set of social fact based on the application of organized force.
What is interesting about Olivecrona’s jurisprudence is that in spite of his rejection of
objective standards of evaluation it has been suggested that Olivecrona would admit
that law prescribes models of conduct. He would therefore not deny that it consists of
‘ought’ propositions.
Ross
Ross’s, theory of law emphasises the normative character of law but used the term
“directive” in place of Olivecrona’s independent imperative”. Ross however draws a
fine distinction between what law is in fact and statement in books about law. This
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distinction sought to be drawn is even finer when one looks at the “written law” as
descriptive of law actual in force.
Like Olivecrona, Ross directed his energies towards evaluating the validity of law. In
his view, validity rested on the predictability that a judge will act according to the
norm in question. In his view a norm of law is valid if a prediction be made that a
court will apply it in future cases. He therefore deduced that a norm is addressed to
the court rather than to private individuals.
It follows that all norms even those of the legislation should be viewed as directives to
judges. The difficulty about this however is that it fails to explain the attitude of the
judge who decides whether the conduct of individual was or was not in accordance
with law, which implies that law is also directed at the community and not just the
judges.
LUNDSTEDT was perhaps the most radical and extreme of the Scandinavian school of
jurisprudence.
He saw law simply as the fact of social existence on organized groups and conditions,
which makes possible co-existence of masses of people. Again the underlying theme
relates to the validity and consequent binding force of law.
He too attacked metaphysical ideas with the conviction that anything, which cannot
be proved as a fact, does not exist. The traditional legal concepts such as rights and
duties therefore had no place in his theory.
EVALUATION OF THE SCANDINAVIAN REALISTS
The characteristic and valuable contribution of the Scandinavian Realists has been
to probe beyond the rejection of transcendental justice into the validity of the entire
apparatus of “rights’. “duties”, “sovereignty” and “command” and other basic legal
concepts which have formed the mainstay of analytical jurisprudence in the work of
Austin and his Anglo-America successors as well as in continental analytical
positivism.
Although the analytical positivists rejected natural law or any other super-positive
index of justice they submitted for such absolute imperatives the sovereignty of the
modern state which demands unconditioned obedience to its command and which by
virtue of its supreme power bestows right and duties on its subject. In this, the
Scandinavian Realists have detected a back-door introduction of ideas taken from
natural law.
Again law cannot operate in a vacuum but must attach itself to facts. Therefore an
emphasis on facts cannot be out of place. Rejecting rules in favour of facts on the
other hand is another matter. The doctrine of stare decisis pre-supposes that facts
and situations repeat themselves materially to the extent that the rules of law applied
to a given situation should result in a decision. Even if one makes this concession one
could still maintain that there must be willingness to question the basic premise upon
which a decision is based. The tendency in the emphasis on legal rules as opposed to
facts may be to stick to the original statement of the issues to be adjudicated upon
which may themselves be in error.
Law acts on facts as they are perceived by the judge. This application of rules of law
necessarily leaves open a number of choices for the decision maker from which he
makes his selection. To this end the facts as perceived are of crucial importance.
Once, however the “problem” has been identified from the collection of facts, objective
criteria in the form of rules are applied to arrive at a decision. It is this inter-
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relationship between facts and rules that are the Scandinavian’s views on the under-
mentioned topics may now be considered.

FEATURES OF LAW
Legislation operates by reason of the unique position occupied by the legislators
which enable them bring psychological pressures upon the population as a whole.
These pressures largely derived from the use of certain ‘formalities’ in the act of
legislation, which play a vital casual role in producing the psychological reaction
essential to compliance. In effect, there is nothing mystical about the working of legal
system and consequently there is no need to rely on fictitious entities or concept such
as state or the binding force of law.
LAW AND MORALS
In the view of Scandinavian Realists, moral ideas are largely determined by law,
since by its use of force law serves as the primary factor influencing moral standards.
It is (they claim) the regular use of force and the propaganda associated with it that
established moral standards. As Lundstedt prefers to put it:
“ social life is not guided by an innate sense of justice
but on the contrary it is the feeling of justice which are
guided by the law in force”.

VERIFIABILITY PRINCIPLE
Notwithstanding the differences in the points of view of the Scandinavian jurists, they
all are agreed in denying the possibility of a science of justice or values. To them,
these are subjective and reflective of class or political ideologies. It is not possible to
construct a science on such basis.
It is to the binding credit of the Scandinavian Realists that they have somewhat
succeeded in destroying many traditional myths concerning law, e.g. binding force and
command.
CRITICISM
The view that meaning is given by factual verifiability and therefore any proposition
which is not verifiable is meaningless or nonsense sounds unconvincing. It probably
arose from the erroneous view in attributing a single function to language to which all
proposition must conform in order to make sense at all. Wittgenstein was at pain in
his later writing to remove this illusion (which he had previously created) and to
demonstrate the infinitely varied use of language.
For the normative use of language is as perfectly legitimate as the empirical and
serves to direct our attention to a class of proposition which are not used as statement
of empirical facts but as guides to human conduct framed in imperative form. It is
this class of propositions that is the proper subject matter of ethics and theology as
well as jurisprudence. That such proposition may be empirical facts does not imply
that the latter can be substituted for the former.
The Scandinavian Realists hardly seem to have faced up to the implications of their
desire to banish all conceptual thinking as meaningless since this must affect the use
of “ideas” in every sphere of thought and in particular in the realm of legal theory
itself. Thus they seem to be faced with the dilemma as to why their own theory which
can only exist in the realm of ideas and is therefore in that sense metaphysical is not
also “nonsense”.