DEFINITION OF LAW

The term “Law”

 To the uninitiated person, law is a simple term but to the analyst, there are many uses
of the word “law”.
 Each of the various schools of jurisprudence tends to set up its own definition of
law.
 Law is an obligatory rule of conduct that orders human activity and relations through
systematic application of a politically organized society or societal pressure backed
by force.
 The term “Law” continued..

 Law is an aggregate of legislation, judicial procedures and accepted legal principles;

a set of rules dealing with a specific area of a legal system.
 The essence of definition

 The notion of definition was invented by the Greek Philosophers, Socrates and
Plato, in what is called the classical era. At that time only, “real definition” was
thought of. It was always a res or thing that required definition. The nomina or
words or concepts did not call for definition.
 The function of words in a language is to aid communication between human beings.
Therefore description and classification are essential for the acquisition and
communication of knowledge. Definition is also needed for the communication
itself.
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 Greek Philosophers assumed that in defining a thing, what is supposed to be defined

is a res (a thing) and not a word. However, according to (Prof. H.L.A. Hart.,
Concept of law, p.13) definition is most often seen as a matter of drawing lines or
distinguishing between one kind of thing and another .
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 Essentially the very word “definition” implies that the process is one of drawing
lines or distinguishing.
 We must, however, make a clear distinction between what may be called lexical
definition (i.e.. importing the meaning of words as actually used) and stipulative
definition (i.e.. explicit and self-conscious setting up of the meaning-relation
between some words and some objects; the act of assigning object to a name or a
name to an object, not the act of according the already existing assignment).
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 Both of these kinds of definition are constantly perused in ordinary work of the law.
Confusions, however, result if the differences between them are not kept in mind
when dealing with the concept.
 We should treat both kinds of definitions as nominal or word-thing definition. This
implies assigning of a meaning to a word. The most common method is to assign the
meaning by describing or identifying the thing by one means or another.
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 The question of “is this particular rule law?”, is answered by referring to the rules of
a legal system, and by putting the word ‘law’ in a sentence which can be tested as to
its validity or invalidity as a conclusion of law.
 What then is “law”?

 A dispute over the answers to this question often springs from differing views of
legal philosophy. The question that arises is: is law the whim of a despot or the
protection of the liberty of the subject?
 Definition of law by the process of real definition is not devoid of difficulties.
 Such difficulties may be approached from the point of view of the theologian, the
historian, the sociologist, the philosopher, the political scientists, or the lawyer.
 What then is “law”? continued…

 Most lawyers will approach the problem from inside a particular legal system. It is
not surprising, therefore, that for the lawyers’ purposes, the investigation may stop at
the point where that legal system provides authoritative tests for recognizing law
from not-law.
 Those tests are applied by some agencies of that legal system and hence we find
lawyers defining law as “the rules recognized and acted by Courts of justice.”
 What then is “law”? continued…

 In order to understand the nature of law, reference must be made to 2 main theories of law:
a) Natural law theory
b) Positivist theory

 According to natural law theory, law that is unfair or immoral, is no law at all (lex iniuster
non est lex).
 However, under Positivist theory, law is law regardless of whether it is just or unjust. It is
what it is not what it ought to be. There is no such thing as unjust law, a bad law, or an
immoral law.
 The positivist theory of law is the prevailing doctrine in the definition of law, applied by
almost every legal system in ascertaining what the law is in any given situation.
 What then is “law”? continued…

 For a rule to be called law and to be recognized and enforceable by the state, it must
emanate from a recognizable source.
 Under S.14(2) Judicature Act Cap. 13, Laws of Uganda, the sources of law are;
a) Written law (legislation)
b) Common law
c) Doctrines of equity
d) Established customs or customary law
 What then is “law”? continued…

 Much may be learnt about law by describing it in terms of its basis in nature, reason,
religion or ethics; by reference to its source in custom, precedent, or legislation; by
its effects on the life of society; by the method of its formal expression or
authoritative application; or by the ends that it seeks to achieve.
 But no definition in terms of any one of these provides an exhaustive means by
which an inquirer could distinguish legal systems from other systems in all cases or
legal rules from other rules in all cases.
 What then is “law”? continued…

a) Natural theory of law

 According to the Natural Law School of thought, true law comes through human
reason and it is from the laws of nature that human created laws gain force of
application.
 According to the natural law theory, there are God made laws to which man made
laws should respond or conform.
 Cicero in his book, Republica, expounded that true law is right reason in agreement
with nature and is of universal application, unchanging and everlasting; and that it
was a sin to try to change it or repeal or abolish it.
 
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 Thomas Acquinas (1229-1274), a theologian and philosopher further distinguished

four kinds of law, namely;

a) The eternal ;

b) the natural ;

c) the human; and

d) divine law.
 What then is “law”? continued…

 Eternal law is God’s decree which governs all creation; natural law is the human
participation in the eternal law and discerned by human reason.

 Human law is positive law, that is, the man-made law applied by governments on
their subjects in their societies.
 What then is “law”? continued…

Positivist theory of law

 The positivist theory of law maintains that law is law regardless of its moral content
and regardless of whether it is just or unjust. This theory distinguishes law as it is
from law at it ought to be.
 There is no such thing as unjust law, bad law, immoral law, et cetera
 If a law is enforceable by the state, it is the true law regardless of whether it is
blatantly unjust, fair or unfair, moral or immoral
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 Hans Kelsen, an Austrian jurist (1861 – 1973), in his Pure theory of law expounds
that he grund norm (supreme law) forms the basis for validity of all other norms and
gives the legal system coherence and systematic form.
 Kelsen argued that once the grund norm ceases to derive or command a minimum
of support if it is overthrown. It ceases to be effective as a basis of the legal order
and any other preposition which gains support will replace it. He equates such
change to “revolution in law.
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 In the Pakistani case of State v Dosso Anor PLD (1958 S.C. 533) court observed that
in determining the validity of laws, one of the basic positivist doctrines is that it
requires the jurist to presuppose the validity of the constitution whether given by an
a usurper, external invader, national hero or popular assembly of persons.
 In other words:
 That the laws made/legal order under a constitution continues as valid until it is
replaced, altered or amended in accordance with the constitution.
 What then is “law”? Continued…

 That it sometimes happens that a constitution and the legal order under it is disrupted by an
abrupt change not in the contemplation of the constitution.
 The effect of such change is not only the destruction of the existing constitution but also the
validity of the legal order under it. Such change is called a revolution in law.
 That the method by which the revolution is brought about is wholly immaterial; it may be violent
or peaceful. Equally immaterial is the motive of the revolution.
 A change is in law a revolution if it annuals a constitution and such annulment is effective.
Where an attempt to change the constitution fails, the sponsors can be charged under the
existing constitution for treason.
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 In the Ugandan case of Uganda vs. Commissioner of Prisons Ex Parte Matovu

(1966) E.A. 514; court relied on Kelsen’s theory to hold that the series of events that
took place in Uganda from February 22nd to April 1966 were law-creating facts
described in law as a Revolution, i.e. that there was an abrupt political change not
contemplated by the existing Constitution that destroyed the entire legal order.
 What then is “law”? Continued…

 Court held that although the 1996 Constitution had extra legal origins, it was a
legally valid constitution, the 1962 Constitution having been abolished as a result of
a victories revolution in law. It therefore did not exist anymore nor did it form part of
the laws of Uganda it having been deprived of its de facto and de jure validly.
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 In the case of Madzimbabuto vs. Lardner-Burke (1969) A.C. 645, Lord Reid pointed
out that there are situations where the law must take into account the fact that there
are now regimes, which are universally recognized as lawful, but which derive their
origins from revolutions or coup d’etats. The question is how or at what stage the
new regime became lawful.
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 The theory has been criticized for not explaining what amounts to effectiveness.

 While Kelsen states that effectiveness of the grund norm is based on recognition
by a number of persons willing to obey the law and that loses its efficacy once it
ceases to have the support of the people, he does not give any guidelines on the
criteria by which minimum effectiveness may be measured.
 The concept of an effective legal order is therefore vague is too readily
rewarding to political power usurpers.