Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

THEORIES OF LAW

Nnamdi Ebo 2Lawyer Zone  | By Nnamdi Ebo | Thories of Law.

A theory is a belief that can guide behavior. A theory is also a well-substantiated explanation of some aspect of the natural world or societies or the law. Again, a theory is a well-substantiated explanation of an organized system of accepted knowledge that applies in a variety of circumstances to explain a set of phenomena. Theories can incorporate facts and laws and tested hypotheses. On the other hand, a theory of law is the legal premise or set of principles on which a case rests. Philosophers have propounded and postulated theories since creation or evolution or the ‘big bang’* – depending on the one you subscribe to. There are some generally accepted theories concerning the origin of law. There are several generally accepted theories of law but we shall treat some of them in this chapters and subsequent chapters – as follows.

*‘Big bang theory’ (Cosmology) the cosmic explosion that is hypothesized to have marked the origin of the universe

THE POSITIVIST SCHOOL

Positive law: a system of law promulgated and implemented within a particular political community by political superiors. It is different from moral law or law existing in an ideal community or in some non-political community. Positive law typically consists of enacted law – the codes, the statutes and regulations that are applied and enforced in the courts. The term derives from the medieval use of positm (Latin “established”), so that the phrase positive law literally means law established by human authority – Also termed jus positivum; made law.

Jeremy Bentham posited that law is a command issued by the sovereign. Positive law is law specifically created and enforced by a proper authority for the government of society – those laws established by tacit approval of society. Liberals in the school of positivism insist that positive law should not be applied strictly in the adjudication or settlement of disputes in court or in its interpretation. Judges are advised to have an open mind to legal positivism and the law it espouses. A legal writer put it more succinctly –

  • “A judge is tethered to the positive law but should not be shackled to it”

                                       Patrick Devlin, The Enforcement of Morals 94 (1968)

John Austin was an acclaimed philosopher who arguably was the first writer to approach the theory of law analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments about law that were secondary to more general moral and political theories). Analytical jurisprudence emphasizes the analysis of key concepts, including “law,” “(legal) right,” “(legal) duty,” and “legal validity.” The American legal realists saw Austin in particular and analytical jurisprudence in general, as their opponents in their critical and reform-minded efforts. Austin’s work should be seen against a background where most English judges and commentators saw common-law reasoning (the incremental creation or modification of law through judicial resolution of particular disputes) as supreme, as declaring existing law, as discovering the requirements of “Reason,” as the immemorial wisdom of popular “custom.”

Austin’s theories views law as being “imperium oriented”—viewing law as mostly the rules imposed from above from certain authorized (pedigreed) sources. More “top-down” theories of law, like that of Austin, better fit the more centralized governments (and the modern political theories about government) of modern times (Cotterrell 2003: pp. 21–77). Austin was the first systematic exponent of a view of law known as “legal positivism.” Most of the important theoretical work on law prior to Austin had treated jurisprudence as though it were merely a branch of moral theory or political theory: asking how should the state govern?

When are governments legitimate? and under what circumstances should citizens have an obligation to obey the law? Austin specifically, and legal positivism generally, offered a quite different approach to law: as an object of “scientific” study (Austin 1879: pp. 1107–1108), dominated neither by prescription nor by moral evaluation. Subtle jurisprudential questions aside, Austin’s efforts to treat law systematically gained popularity in the late 19th century among English lawyers who wanted to approach their profession, and their professional training, in a more serious and rigorous manner. (Hart 1955: pp. xvi-xviii; Cotterrell 2003: pp. 74-77; Stein 1988: pp.

Austin’s famous formulation of what could be called the “dogma” of legal positivism is as follows:

“The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.” –  (Austin 1832/1995: Lecture V, p. 157). Austin postulated the command theory.

Bentham was also a philosopher who postulated based on the command theory. However, Austin’s command theory was more influential than Bentham’s, because the latter’s jurisprudential writings did not appear in an even-roughly systematic form until well after Austin’s work had already been published, with Bentham’s most systematic discussion only appearing posthumously, late in the 20th century (Bentham 1970, 1996; Cotterrell 2003: p. 50). What is the core nature of law? Austin’s answer is that laws (“properly so called”) are commands of a sovereign. He clarifies the concept of positive law (that is, man-made law) by analyzing the constituent concepts of his definition, and by distinguishing law from other concepts that are similar:

  • “Commands” involve an expressed wish that something be done, combined with a willingness and ability to impose “an evil” if that wish is not complied with.
  • Rules are general commands (applying generally to a class), as contrasted with specific or individual commands (“drink wine today” or “John Major must drink wine”).
  • Positive law consists of those commands laid down by a sovereign (or its agents), to be contrasted to other law-givers, like God’s general commands, and the general commands of an employer to an employee.
  • The “sovereign” is defined as a person (or determinate body of persons) who receives habitual obedience from the bulk of the population, but who does not habitually obey any other (earthly) person or institution. Austin thought that all independent political societies, by their nature, have a sovereign.
  • Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e.g., the laws of physics).
    (Austin 1832/1995: Lecture I).

Critique

As many readers come to Austin’s theory mostly through its criticism by other writers (prominently, that of H.L.A. Hart), the weaknesses of the theory are almost better known than the theory itself: First, in many societies, it is hard to identify a “sovereign” in Austin’s sense of the word (a difficulty Austin himself experienced, when he was forced to describe the British “sovereign” awkwardly as the combination of the King, the House of Lords, and all the electors of the House of Commons). Additionally, a focus on a “sovereign” makes it difficult to explain the continuity of legal systems: a new ruler will not come in with the kind of “habit of obedience” that Austin sets as a criterion for a system’s rule-maker.

Secondly, one could argue (see Harris 1977) that the sovereign is best understood as a constructive metaphor: that law should be viewed as if it reflected the view of a single will (a similar view, that law should be interpreted as if it derived from a single will, can be found in Ronald Dworkin’s work (1986: pp. 176–190)).

Thirdly, one could argue that Austin’s reference to a sovereign whom others are in the habit of obeying but who is not in the habit of obeying anyone else, captures what a “realist” or “cynic” would call a basic fact of political life. There is, the claim goes, entities or factions in society that are not effectively constrained, or could act in an unconstrained way if they so chose. For one type of example, one could point out that if there was a sufficiently large and persistent majority among the Nigerian electorate (without ‘nairapolitics’ and docility as a distraction), nothing could contain them: they could elect Presidents and legislators who would provide solid infrastructure, rebuild the education and health sectors, amend the Constitution to create more states, solve the Niger delta conundrum once and all and fight crime and corruption to a standstill.

This proactive electorate will make the senate to confirm honest and hardworking ministers (without a minister taking a bow) and compel the president and governors to appoint credible officials, appoint honest judges who would interpret the (revised or original) Constitution in a way amenable to their interests. If wishes were horses! Finally, one might note that the constitutive rules that determine who the legal officials are and what procedures must be followed in creating new legal rules, “are not commands habitually obeyed, nor can they be expressed as habits of obedience to persons” (Hart 1958: p. 603).

Some modern commentators appreciate in Austin elements that were probably not foremost in his mind (or that of his contemporary readers). For example, one occasionally sees Austin portrayed as the first “realist”: in contrast both to the theorists that came before Austin and to some modern writers on law. Austin is seen as having a keener sense of the connection of law and power, and the importance of keeping that connection at the forefront of analysis (cf. Cotterrell 2003: pp. 49–77). One commentator wrote:

Austin‘s theory is not a theory of the Rule of Law: of government subject to law. It is a theory of the ‘rule of men’: of government using law as an instrument of power. Such a view may be considered realistic or merely cynical. But it is, in its broad outlines, essentially coherent. (Cotterrell 2003: p. 70)

WATCH OUT for other Theories of Law | Visit this website regularly . . .

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Legal Method . Book Cover 202x300 THE DIVERSITY OF LAWCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012

Buy the book, Legal Method  |  Click  Bookshop

Nnamdi Ebo [email protected]  |  © 2014 Nnamdi Ebo . All Rights Reserved

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