LEGAL METHOD

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THEORY OF LAW

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THEORY OF LAW
Theory of law is also known as philosophical law or legal theory or
jurisprudence. Jurisprudence comes from the Latin word
“jurisprudentia,” meaning knowledge/ skill of law. “Juris” meaning law
and “prudentia” meaning knowledge, skill or experience. Jurisprudence
signifies knowledge or science of law and its application . The philosophy
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and theory of law is primarily concerned with what law is and what it
ought to be. 2

Jurisprudence studies the concept or idea or law, origin, sources,

evolution or growth, nature, principles, concepts, or rules, legal
institutions, theories, social, economic, political and philosophical
ramifications, efficacy of law, purpose in the society and a view to
improve it.
THEORY OF NATURE
According to John Locke, natural law is the idea that there are certain
moral principles that exist independently of human laws. It’s like a
universal code of ethics. Natural law is a theory that suggests that there
are inherent moral principles that govern human behaviour. It’s based on
the belief that certain rights and values are universal and can be
discovered through reason and observation. It’s a fascinating topic to
explore. 3

THEORY OF POSITIVISM
The word “positivism” comes from Latin “positus” which means to
firmly affix the existence of something. Legal Positivism is a school of
jurisprudence which states that the only laws that are to be obeyed in the
society are the written rules and regulations that are fully recognized by
entities such as political institutions, executive bodies, etc. And moral
law and morality should not be allowed to interfere with the law. For
instance, in a divorce case which involves custody of children, a legal
positivist would not include the several moral factors involved in the

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case, rather, they would stick to what the Law says no matter the
situation.
John Austin, a popular legal philosopher, in the 18th century, gave the
following statement:
“The existence of law is one thing; it’s merit or demerit is another…. A
law which actually exists is a law, though we happen to dislike it.” This
simply means that whatever sentiments we have regarding a particular
law or judgement in the court do not matter, as far as it exists and is
recognized.
CRITIQUES OF LEGAL POSITIVISM
1. Lon Fuller – Lon Fuller, in his critique of positive law, does not
support the separation of law and morality. He feels that morality exists
not only in Law but as well as all other social practices with clear,
consistent and prospective features. His other reproval explains that
obedience to laws in itself is a display of morality and if a law that
violates moral standards is made, there is still an obligation to obey.
2. Ronald Dworkin – Dworkin negates the concept of Legal Positivism
in itself; he believes in the law as it ought to be i.e. morality and feels
that a theory of law should express this belief. He further expressed that
a court of law should be able to feel morally justified in applying their
decisions whether or not these considerations are determined by any
source. 4

CRITICAL LEGAL STUDIES

This is a theory which states that the law is necessarily intertwined with
social issues, particularly stating that the law has inherent social biases.
Proponents of critical legal studies believe that the law supports the
interests of those who create the law, this simply means the theory is
one that focuses on overcoming social constructs that oppress people in
the society.

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In addition, CLS find that the wealthy, potential, and powerful use the
law as an instrument for oppression to maintain their place in hierarchy,
many in the CLS movement want to overturn the hierarchical structures
of modern society and they focus on the law as a tool to achieve this
goal.
A brief history on Critical legal studies
Firstly, it was officially started in 1977 at the University of Wisconsin-
Madison, the founders of the Critical legal studies borrowed from non –
legal fields such as social theory, political philosophy, economics, and
literary theory, among noted critical legal theorists are Roberto
Mangabeira Unger, Robert W Gordon, and Duncan Kennedy.
Historical Theory of Law
The Historical theory of law argues and states that law should be a
product of the custom of the society. As we can simply derive from the
meaning of the word ‘history’ – the Historical school of jurisprudence is
of the opinion that law should be a restatement of the history of the
people, according to the dictates of this theory, there is something called
Volkgeist – the spirit of the people.
The theory believes that this binds the people of a society together and
differentiates them from any other people.For example, a German has a
‘National Spirit’.
This makes him think like a German, and not like a French, and vice
versa.
In like manner, a spirit makes a Nigerian think like a Nigerian, and not
like an American.
Apparently, this spirit is a product of the history, custom and life-system
of the people.
Therefore, to a Historical law theorist, for a law to be valid, it must be in
alignment with the history and custom of the people – which is their
spirit.
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Furthermore, what should be done in the case of cultural diversities?
When there are more than one history or custom pattern in a society,
which should the law follow?
In a country like Nigeria, there are about 250 ethnic groups. Following
the dictates of the Historical law school is largely impractical.
Which of the customs should our laws follow? Or what happens when
the customs clash?
The theory of the Historical School of Jurisprudence is a theory to learn.
It stresses the importance of putting the history and custom of people
into the making of laws.
And in this regard, it possesses some advantages. Nevertheless, it
advantages can also turn around to becomes its disadvantages.
In all, I think the definition of the Historical jurist is a weak point to
view the definition and validity of law. Nonetheless, it is a strikingly
nice one.

Arguments for the Historical Theory of Law

A relatively large percentage of the people in a society know their
custom.
Therefore, if laws are made according to these customs, the knowledge
of law becomes relatively easy.
Based on the point raised above, it also becomes comparatively easy for
the people of a society to keep the law. In a way, they can avoid
harassment, unlawful practices, or dictatorship.
The points raised supra will give room for a faster development of the
society. It will foster economic and political growth.
Arguments against the Historical Theory of Law
One good feature of law is dynamics. This means that law can be
changed to suit the prevalent situation in the society.
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Unfortunately, since customs are developed overtime, mostly unwritten,
and relatively rigid, it is very hard or impossible to change them.
Also, the Historical school of jurisprudence validates a law based on its
uniformity with the history of the people, rather than fairness, goodness,
and justice.
So, a law can be unjust and tyrannical and still be valid, just because it
supports the custom.

THEORY OF REALISM
The Realist theory or “Legal Realism’’ which suggests that what we
refer to as the “law” is not what we see in legal texts and so on but
rather the application of it in adjudication process. According to
Wikipedia, legal realism is defined by its focus on the law as it actually
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exists in practice, rather than how it exists in books. Basically, legal

realism focus on how the law is actually applied rather than on
theoretical laws. Legal Realism is said to have sociological approach.
This school of thought is of an American origin. Its founding father is
jurist Oliver Wendell Holmes Jr. He brings up Realism in his book titled
“Common Law,” which was released in 1881. As legal positivism grew
in the 20th Century, Legal Realism an equally prominent and different
approach to thinking grew alongside it. Two prominent figures were
Dane Alf Ross and Karl Llewelyn
There are two types of legal realism. American Realism and
Scandinavian Realism. American realism has the main aim of
reformation of law. They understand that this cannot be done without
first understanding the law. They are pragmatic, behaviourist and
sceptical of the rules and concerned more about the ‘law in action’.
They are more into the functioning of the court and how the decisions
are made. Main figures in American realism were Oliver Wendell
Holmes, the founder. He was an American supreme court judge and
believed law should be studied like a science rather than a conceptual
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notion. Another figure is Karl Llewelyn. He was an American
jurisprudential scholar who believed that law to be a function providing
mechanism and there are several functions that are to be performed by
it. Others include Jerome Frank and Arthur Linton Corbin.
Scandinavian realism is a jurisprudential movement that was founded
by Axel Hagërström and jurist Alf ross. The view that law was vital in
destroying the distorting influence of metaphysics upon scientific
thinking generally was shared by them. Main figures in Scandinavian
realism were Axel Hagërstrōm was a professor of Philosophy and was
the major founder of this realistic movement. He focused on the
scientific and realistic approach to law rather than idealistic. He believes
law came into existence as per the will of human in right and what is
wrong. Dane Alf Ross a legal philosopher whose view was presented in
his work “Om Ret Og Retfaerdighed” (On the Law and Justice). His
work was focused on the sociology of law. He emphasized for judges’
behaviour to be taken into consideration. His theory of realism is
dependent on analysis of judges’ behaviour and joint ideology of judges
in interpreting modern law. Others include Karl Olivecrona and Ingemar
Hedenius.
There are links between legal realism and legal positivism. Judicial
positivists contend that all legislation is a good rule because it is socially
dependent. Therefore, the rule is incomplete: there are legal issues that
cannot be settled by statute alone. Yet legal realists tend to believe that
all legislation is good, so they argue that positive law under-determines
judicial rulings, at least in appellate proceedings. Positivists believe that
certain branches of legislation, at least on judges, are binding. Legal
realists contend that other documents are simply permissive.

REFERENCES:
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1933 Meaning, Defn Utility and Scope Jurisprudence
Wikipedia
Natural Law and Natural Rights by John Finnis
www.lawteacher.net
www.lawcolumn.in
Britannica.com
The Nigerian Legal Method by Ese Malami
iPleaders.com
Safari

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