LL.

M (2009/2010)
JURISPRUDENCE
GROUP 2 PRESENTATION
1. LUKA KIMARU
2. MARK GAKURU
3. MUTUMA KIBANGA
1
Lega P!"#$#%#"&
1. I'$(!)*+$#!'.
Interpretation of law during the middle ages (the period of international history covering
a millennium in the 5
th
century through 16
th
century) was strongly influenced by
theological considerations. The period from renaissance (the period generally associated
with the transition out of the middle ages) may be described as the metaphysical era in
legal philosophy. The majority of rulers in this period purported to derive their authority
from a higher authority. The idea of democracy had began to evolve and the need to
define law in more clear terms arose.
In the middle of the nineteenth century a strong countermovement against the
metaphysical tendencies of the preceding centuries set in. this countermovement was
called positivism. The basis of positivism had been prepared by the immense success
achieved in the domain of natural sciences during the first half of the nineteenth century.
This success brought about a strong temptation to apply the methods used in the natural
sciences to the realm of social sciences. Two main characteristics of the positivistic
approach were!
a) "nly what is tested and verified on the basis of sensory e#perience is considered.
b) $n almost contemptuous attitude is ta%en by the adherents of positivism towards
the development of previous philosophy. They regarded the majority of great
philosophers of &estern culture as metaphysicians and purveyors of nonsense.
'egal positivists hold that only positive law is law. (ositive law means those juridical
norms which have been established by authority of the state. They insist on a strict
separation of positive law from ethics and social philosophy. (ositivism as a scientific
attitude rejects speculation and see%s to confine itself to the data of e#perience.
)
*arly advocates of legal positivism included Thomas +obbes (15,,-16./) 0avid +ume
(1.11-1..6) 1eremy 2entam (1.3,-1,4)) and 1ohn $ustin (1./5-1,5/). $ustin6s
understanding of the law was as follows
7the e#istence of the law is one thing its merits or demerits is another. &hether it
be or be not is one en8uiry! whether it be or be not comfortable to an assumed
standard is a different en8uiry. $ law which actually e#ists is a law though we
happen to disli%e it or though it vary from the te#t by which we regulate our
approbation or disapprobation6
The 9rench mathematician and philosopher $uguste :omte (1./,-1,5.) may be
regarded as the founder of modern positivism. +e distinguished three stages in the
development of human thin%ing.
a) Theological stage in which all phenomena are e#plained by reference to
supernatural causes and the intervention of a divine being.
b) ;etaphysical stage in which thought has recourse to ultimate principles and
ideas which are conceived as e#isting beneath the surface of things as
constituting the real moving forces in the search evolution of man%ind.
c) (ositivistic stage which rejects all hypothetical constructions and confines
itself to empirical observations under the guidance of methods used in natural
sciences.
The three stages propounded by :omte are still open to criticism in so far as they
characteri<e positivism as the last and final stage in the development of human thought. It
should be noted that :omte6s law itself by ma%ing untested and categorical assertions
about the evolution of human thought should be described as 7metaphysical6 mate
principles
'egal positivism shared with positivistic theory in general the aversion to metaphysical
speculation and the search for ultimate principles. It rejected any attempt by
jurisprudential scholars to discern and articulate an idea of law transcending the empirical
realities of e#isting legal systems. 'egal positivism has manifested itself most
4
conspicuously in a jurisprudence of analytical type. A'a,$#+a -!"#$#%#"& ta%es as its
starting point a given legal order and distils from it by a predominantly inductive method.
:ertain fundamental notions and distinctions and comparing them to those of another
legal order to ascertain common elements.
2entham 1ohn =tuart ;ill (1,56-1,.4) and >udolph von 1hering (1,1,-1,/)) are
regarded as the *$##$a(#a' -!"#$#%#"$". These belonged to a category of earlier thin%ers
who saw positive law as based on its utility value. 'ater philosophers including :omte
$ustin ?elsen (1,,1-1/.4) and +art (1/5.-1//)) loo%ed at law more as a command of
the sovereign and denied any ethical or moral content in law.
2. T.e !(#g#'a $.#'/e(" #' $.e )e%e!-&e'$ !0 -!"#$#%#"& a" a ega
$.e!(,
1eremy 2entham (1.3, @ 1,4)) was influenced in his writings by 0avid +ume (1.11 @
1..6) who was the founder of value grounded on the value e#periences of the common
man. Atilitarian as a philosophy flourished in 1/
th
:entury *ngland. Its greatest
proponent was 2entham who proceeded from the preposition that nature had placed
man%ind under the governance of pleasure or pain. The good or evil of an action should
be measured by the 8uality of pain or pleasure resulting from it. 2entham defined utility
asB
Cthat principle which approves or disapproves of every action whatsoever
according to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in 8uestion.D
=ee 1eremy 2entham in I'$(!)*+$#!' $! $.e P(#'+#-e" !0 M!(a" a') Leg#"a$#!'
("#ford 1/)4 page )). Atilitarianism as a philosophy cannot be divorced from the
historical events that occurred at the material time. It was during this time that there was
the rise of nation states which were an#ious to assert their total independent in the new
age of economic e#pansion and to reject all notions of feudalism or moral interference by
the church. 2entham argued that the definition of law depended on its purpose. +e
argued that the business of government was to promote the happiness of the society by
furthering the enjoyment of pleasure and affording security against pain. +e e#plained
3
that Cit is the greatest happiness of the greatest number that is the measure of right or
wrongD.
+e stated that the happiness of the society as a whole would be attained by four goals of
subsistence abundance e8uality and security for the citi<ens. 2entham stated that Call
the functions of law may be referred to under these four headsB to provide subsistence! to
produce abundance! to favour e8uality! and to maintain security.D 2entham rejected
natural law and subjective values and replaced these with standards based on human
advantages that is pleasure and satisfaction. 2ehind the utilitarian thin%ing is that the
positive law of the =tate is something attainable without regard to subjective
considerations! it was separate from morals though it may be influenced by morals.
2entham was the first thin%er to posit that no substantive law could be effectuated
without the reform of its form and structure. +e distinguished what he called censorial
jurisprudence (science of legislature) from e#pository jurisprudence @ the latter was
concerned with law as it is without regard to its moral or immoral character. 2entham
defined all laws as constituting a command a prohibition or permitting some form of
conduct. +e recogni<ed the reality that the imperative character of law is often conceived
because of the manner in which the law is e#pressed descriptively. In this character
sanction is often hidden. &hereas 2entham rejected the e#istence of natural rights his
analysis left scope for incorporation of the values it sought to postulate such as liberty
e8uality and property rights. +e emphasi<ed security as being of utmost importance
because he was of the view that where there was security great happiness would be
achieved by creating a wall of protection within which the individual can do what he
chooses. $ccording to R. 1a((#"!'2 in his treatise !' Be'$.a& Cit enables people to
choose for themselves within the limits laid down how they will attempt to ma#imi<e
their own separate portions of happinessD. 9or his utilitarian ideas 2entham is credited
for being the creator of the welfare state. +e believed that the law should be used for the
purposes of social development. +e saw social desirability as logical necessity of a
sovereign. +e accepted the concept of a divided or partial sovereign and the principle
that a sovereign may bind his successors. =anctions plays a less prominent role in
2entham6s utilitarian theory than $ustin6s.
5
2entham influenced J!.' S$*a($ M# (1304 5 1363) who agreed with him that Cactions
are right in proportion as they tend to promote happiness! wrong as they tend to produce
the reverse of happinessD. +e insisted that the utilitarian doctrine of happiness was
altruistic rather than egoistic since its ideals was happiness of all concerned. 1ohn =tuart
;ill differed with 2entham on the concept of justice. 2entham subordinated justice to
the dictates of utility. ;ill on the other hand too% the position that whereas the standard
of justice should be grounded on utility its origins should be based on the impulse of self
defence and the feeling of sympathy. +e argued that the feeling of justice is the urge to
retaliate for a wrong on a generali<ed basis. +e stated that the sense of justice
encompasses all moral re8uirements and therefore should be regarded as sacred and
obligatory for the wellbeing of man%ind. +e argued that Cthe sole end for which man%ind
are warranted individually or collectively in interfering with the liberty of action of any
of their number is self-protection. That the only purpose for which power can be
rightfully e#ercised over any member of a civili<ed community against his will is to
prevent harm to others. +is own good either physical or moral is not a sufficient
warrant.D
R*)!-. %!' J.e(#'g (1313 5 1392) wrote the boo% CLa7 a" Mea'" $! a' E')D. +e
argued that the sole purpose of the law is not to protect individual liberty but to bring
about e8uilibrium between the individual principle and the social principle. +e argued
that the law should be seen as Cthe reali<ed partnership of the individual and the societyD.
+e saw the principal aim of this partnership as the accomplishment of a common cultural
purpose. R!"+!e P!*') characteri<ed 1hering as Ca "!+#a *$##$a(#a'D. >oscoe (ound
argued that certain standards of conduct may at least in part be what is called Coperative
idealsD of a particular society a part of its accepted system of values and whether this is
or is not is a matter of objective social fact. +e stated that Cwhether it is convenient or
not to define law without reference to subjective factors when we come to observe the
phenomena with which law is concerned and to analy<e the meaning and use of legal
rules in relation to such phenomena it will be found impossible to disregard the role of
value judgments in legal activity and we cannot e#ercise this functional role by
stigmati<ing such judgments as merely subjective or unscientific.D
6
1hering6s philosophy of law was based on the concept of purpose! purpose is the creator
of the entire law and that there is no legal rule that does not owe its origin to practical
motive. +e stated that C'aw is the sum of the conditions of social life in the widest sense
of the term as secured by the power of the =tate through the means of e#ternal
compulsion.D +e viewed securing of the conditions of social life as the substantive aim
of the law. +e believed that the means and instrumentalities of the law whilst cannot be
uniformly secured should be adapted to the needs of the particular period and the state of
civili<ation of a nation. +e stated that the =tate e#ercises compulsion and force for the
purpose of ensuring compliance with the norms of law.
J!.' A*"$#' (1690 5 1389) is regarded as the first e#ponent of a'a,$#+a -!"#$#%#"&.
$ustin6s concept of law defined the law as at its most comprehensive signification as a
rule laid down for the guidance of an intelligent being by an intelligent being having
power over him. +e divided the law into two categories! Claw properly so calledD and
Claw improperly so calledD. +e defined law as constituting general commands. This
command was an e#pression of a wish by a determinate person or body of persons that
another person shall do or forbear from doing some act subject to an evil in the event of
disobedience (sanction). +e divided law into two categories law set by Eod or divine
power and law set by men. In the category of laws set by men the first consisted of laws
set by political superiors i.e. by a sovereign person or sovereign body of persons. +e
termed these laws as positive law or Claw simply and strictly so calledD. The second
category of laws were those set by men to men who were not their political superiors i.e.
rules of a club. +e termed these laws as Cpositive moralityD. $ustin argued that
sovereignty was an illimitable and indivisible entity. +e argued that law was opposed to
moral or natural law notions of what it ought to be. +e conceived law as a command. +e
argued that Cthe science of jurisprudence (or simply and briefly jurisprudence) is
concerned with positive laws or with laws strictly so called as considered without regard
to their goodness or badnessD. +e advocated the separation of law and ethics. (ositive
law had nothing to do with the ideal or just law.
$ustin argued that the function of jurisprudence is the e#position of the general notions
and principles abstracted from positive systems of law. The object of the study of
jurisprudence was to elucidate the uniformities and analogies that is common in mature
systems of law. +e stated CI mean then by Eeneral jurisprudence the science concerned
.
with the e#position of the principles notions and distinctions which are common to
systems of lawB understanding by systems of law the ampler and maturer systems which
by reason of their amplitude and maturity are pre-eminently pregnant with instruction.D
In $ustin6s view this tas% involved e#position of rights obligations injury sanction
punishment and redress. +e conceived law as the command of sovereign who inspires
Chabitual obedience from the bul% of a given societyD. +e argued that the law should be
in form of command which imposes a duty and not CoughtD propositions. +e generally
disregarded declaratory statutes as constituting law. +e e#plained that for laws to be valid
it must have an element of sanction. +e stated that Cthe essence of a legal system is the
interest fact based on various psychological factors that law is accepted by the
community as a whole as binding and the element of sanction is not an essential or
perhaps even an important element in the functioning of the system. It is because a rule
is regarded as obligatory that a measure of coercion may be attached to it! it is not
obligatory because there is coercionD.
$ccording to $ustin duty command and sanction are part of the same scheme of things.
$ustin postulates law as a command to be in reference to the logical classification of
legal propositions as CimperativesD that is they are normative statements laying down
rules to guide human conduct as distinguished from statement of facts. +e argued that
law depended on authority. +e stated that the person laying down the rule to be obeyed is
claiming that he is legitimately entitled to do so and the subject obeying is
ac%nowledging that legitimacy. The position is that of hierarchical subordination
between the subject and the ruler. $ustin was emphatic that law was separate from
morals and because of lac% of sanction he regarded international law as not being law
properly so called.
3 T.e &!)e(' $(e') #' a'a,$#+a -!"#$#%#"&
+.'.$. +art position. (1/5.-1//)).
$t the time 1.L.A. 1a($ began forming his legal theory the view within the legal theory
literature was that the law was best understood as the command of a sovereign to its
subjects. +art6s approach can be seen as a reaction to the +!&&a') $.e!(,. The
Ccommand theoryD offered a picture of law as a matter of commands (orders bac%ed by
threats) by a sovereign (one who is habitually obeyed by others but who does not
habitually obey one else) to citi<ens. +art found wea%ness at an early point.
,
9irstly it was hard to spea% of there being a sovereign @ a person or entity that is
habitually obeyed but has no habit of obedience to any other person or entity. In most
modern governmental roles and institutions are subject to legal restraints. =econdly the
concept of a sovereign creates difficulty in e#plaining the continuity of lawB 9or when
someone new ta%es over that person has no history of being habitually obeyed. Thirdly
there is much that is significant within legal systems that is lost if one loo%s only to
commands bac%ed by threats or one treats all aspects of law as variations of commands
bac%ed by threats.
9rom +arts perspective the problem with $ustin6s approach to law and indeed with
most empirical approaches was that such approaches are unable to distinguish pure
power from institutions and rules accepted by the community unable to distinguish the
orders of terrorists from a legal system.
+arts alternative view of law is grounded on his views of rules in particular on a view of
the difference between rules and habits. To an outside observer there may be no way to
distinguish someone acting in a particular way out of habit from her acting the same way
in compliance with a rule. &ith habits the statement of the behavior is nothing more
than a description. &ith a rule however the settlement can ta%e an additional roles! as an
e#planation a justification and a basis for critici<ing deviation. ;any people are not
merely in the habit of obeying the authorities! they have internali<ed the rules as reasons
for acting in certain ways and for critici<ing others when they do not act as re8uired.
+arts theory is responding to the idea that when analy<ing social institutions or social
practices a theory which ta%es into account or helps to e#plain the way participants
understand those institutions or practices is by that fact alone significantly better than
one that does not.
+art described his own wor% as Can essay in descriptive sociologyD in that he often
relied on distinctions between concepts that were rooted in linguistic practice @ linguistic
practice that was in turn based on differences in behavior and attitude. $ccording to
+art one acts because one believes that one ought to do so not because or not merely
because one fears the conse8uences of acting in a contrary way.
$ustin6s theory seemed to reduce all legal rules to commands! +art emphasi<ed the
multiplicity of law. +e contrasted rules that imposed duties with those that conferred
powers (whether power conferred on officials within the legal system or the delegation
of certain legal powers to citi<ens as can be said to occur through the operation of rules
/
for contract wills trusts etc and he contrasted rules that applied directly to citi<ens
(-(#&a(, (*e") and rules that governed the operation of the rule- system itself
("e+!')a(, (*e"). The secondary rules include rules of change rules of adjudication
and rules of recognition. >ules of change are the rules which empower people to create
new primary rules. This includes not only the authori<ation of legislative bodies but also
the empowerment of individuals to create rights and duties through contracts wills trust
etc. >ules of adjudication empower individuals to ma%e authoritative determinations of
the 8uestion whether on a particular occasion a primary rule has been bro%en.
+art argued that there were two necessary and sufficient conditions for the e#istence of a
legal system.
a) That the valid rules of the system Cmust be generally obeyedD.
b) That the criteria set forth in the system6s rule of recognition must be effectively
accepted as common public standards of official behavior by its officials.
S!&e a"-e+$" !0 1a($" ega $.e!(,
1) The >ule of >ecognition
:entral to +arts theory is the concept of a rule of recognitionB a set of criteria by
which the officials determine which rules are and which rules are not part of the
legal system. The rule of recognition e#presses or symboli<es the basic tenet of legal
positivism! that there are conventional criteria agreed upon by officials for
determining which rules are and which are not part of the legal system! this in turn
points out to the separation of the identification of the law from its moral evaluation
and the separation of statements about what the law is from statement about what the
law should be.
)) The Internal $spect of >ules (and 'aw).
There are two related problems to considerB how must social theories be different
from theories in other areas and to what e#tent can a social theory be CscientificD.
"ne problem that comes from trying to construct a theory of a social process li%e
law is that law is a human creation meant to serve human purpose and re8uiring
human participation. 2ecause of these facts understanding any social process
including law will be different in %ind from understanding processes which are
purely physical chemical or biological. This is the conte#t for analy<ing +art6s
concept of internal aspect of rules. The idea is that one cannot understand a social
15
system unless one understands how people who created the system or who
participate in the system perceive it.
+art6s argument is that whatever advantage a CscientificD approach might have it
simply is not ade8uate for a full understanding of law. 'aw is a social institution set
up to achieve certain human purposes and also guidance to citi<ens. "ne can only
understand purposive behavior and normative (rule- following) behavior if one
leaves one6s spectator6s perspective and tries to understand the perceptions of the
people who are following the rules and who perceive themselves as doing so.
4) "pen Te#ture
There are a number of different ways in which legal rules might fail to cover unusual
factual situations that arise. +art introduced the idea of Copen te#tureD to discuss
one such way. If the legislators introduce a rule to deal with a particular set of
circumstances how is a judge to apply the rule to an entirely different set of
circumstances. +ow is a judge to apply the rule to an entirely different type of
situationF +art argued that with all general rules there will be a Ccore of certaintyD
:entral cases where the application is clear and a Cpenumbra of doubtD where the
application of the rule is uncertain part of the argument is that legislative purpose is
incomplete or imprecise. The legislators have not considered all possible situations
so that legislative intent even if clearly %nown will not answer all possible situations
so that legislative intent even if clearly %nown will not answer all possible problems
in applying rules. $nother argument is that language is imprecise. There will be
many occasions when it will be uncertain whether a general term applies to the
particular object in 8uestion. 9rom these premises +art concluded that judges
inevitably must use their discretion to ma%e new law on the occasions where the
legal rules have C"pen te#tureD +e also argued that judicial lawma%ing at the
margins was a good thing giving need fle#ibility to the application of legal rules.
+art primary purpose in putting forward the notion of C"pen te#ture6 was to counter
arguments from firstly the $merican legal realists some of whom argued that
1udicial 'egislation showed that legal rules never or rarely determined the outcome
in legal cases and that rules were a little or no importance in understanding law.
11
=econdly +art was responding to the Gatural law theorists who argued that the way
judges decide difficult 8uestions showed that there was contrary to legal positivists
no conceptual separation between law and morality. To the point that rules by
themselves do not always determine the result of cases +arts response was that this
is sometimes true but that this occurs in only a relatively small number of cases.
3) The ;inimum :ontent of Gatural 'aw.
The te#t occurs in the conte#t of general discussion of the ways that law and
morality can be said to overlap (for e#ample the way that conventional moral beliefs
obviously affect the way that the law develops and the fact that ideas about how law
and society ought to effect how statutes in particular ambiguous statutes are
interpreted) in order to show what is not claimed by the assertion that there is no
necessary connection between law and morality.
+art6s argument is that there are certain contingent facts of the human situation in
the present time. That we are all mortal and vulnerable that resources are limited
and that we are all dependant to some e#tent on other people. These facts are
contingent in that it is not impossible however unli%ely it may be that future
scientific developments might change these facts. $mong these +art speculated that
any legal or moral system that did not offer certain minimal protections (against
murder serious assault and theft) to at least a significant minority of the population
would not @ could not @ survive for very long.
This is not a conceptual point merely a prediction. *ven if one were to ta%e it as a
concession to the natural law theorists it6s a trivial one. 9or this does not reflect the
usual lines of disagreement between legal positivists and natural law theorists.
$dvocates of natural law argue for a moral test for legal validity. ;ost natural law
theorists would want the right to declare as Cnot lawD legal systems that would
otherwise easily pass the minimal standards of +art discussion.
J!"e-. Ra9 (:.1939 )
(Inclusive Hersus *#clusive 'egal (ositivism)
1)
The debate between the two camps involves a difference in interpreting or elaborating
one central point of legal positivism @ that there is no necessary or C:onceptualD
connection between law and morality.
E;+*"#%e ega -!"#$#%#"& states that the e#istence and content of every law is fully
determined by social sources. I'+*"#%e ega -!"#$#%#"& interprets the separation of law
and morality differently arguing that while there is no necessary moral content to a legal
rule or a legal system a particular legal system may by conventional rule ma%e moral
criteria necessary or sufficient for validity in that system. $n e#ample of inclusive legal
positivism is in the A.=.$ where constitution based 1udicial review of legislation
re8uires or authori<es the invalidation of legislation that runs afoul of moral standards
codified in the constitution li%e regarding e8uality due process humane punishment.
This appears to ma%e moral merit a necessary but not sufficient basis for legal validity.
The most prominent argument of e#clusive legal positivism is offered by 1oseph >a< and
is based on an asserted relationship between law and authority. >a<6s approach is
summari<ed as followsB-
1) 9irstly >a< offers the Csocial thesisD as the core of legal positivism. That what is law
and what is not are matters of social fact i.e. the e#istence and content of every law
are fully determined by social source. &hen judges are merely applying decisions
already reached they are applying e#isting law when judges consider moral factors
in creating a new rule or in considering possible charges to e#isting rule! they are
determining what law should be. It is both analytically clearer and in line with the
way we usually thin% and tal% about law to maintain a distinction between applying
the law and ma%ing new law between e#ecution and deliberation. This approach
>a< says that moral reasoning has no part in saying how judges should decide cases
according to law.
)) It is in the nature of law that the legal system claims legitimate authority. In >a<6s
term! Cthe authority directives become our reasons while the acceptance of the
authority is based on belief that its directives are well founded in reason they are
understood to yield the benefits they are meant to bring only of we do rely on them
rather than on our own independent judgment of the merits of each caseD.
This means that legal rules purport to be Ce#clusionary reasonD i.e >easons to
e#clude a consideration from being the ground for a decision.
14
1a'" Ke"e' (1,,1-1/.4).
(ure Theory of 'aw
+ans ?elsen was an $ustrian legal theorist who spent part of his life in the Anited =tates
having escaped *urope at the time of +itler.
T.e P*(e T.e!(, !0 La7
$ccording to ?elsen the theory was CpureD because it only describes the law and
attempts to eliminate from the object or this description everything that is not strictly
C'awD. ;oral judgments political biases and sociological conclusions were all to be
pushed aside as improper for a C=cientific Cdescription of the social institution of law.
There are two basic starting points for understanding ?elsen6s approach to legal theory.
9irst normative claims @ arguments for how one ought to act or for how things ought to
be @ can be grounded only on (justified by) other normative claims. This is the argument
usually attributed to 0avid +ume that one cannot derive a normative conclusion from
purely factual premises. In other words a purely factual description of a situation will
never be sufficient by itself to justify a conclusion that something ought (morally) to be
done. "ne can only justify such conclusion by first accepting or inserting a moral
premise. =econdly such lines of justification must necessarily come to an end at some
point. In day-to-day discussions each (normative) argument put forward is based on
(justified by) some more general or more basic argument. &e tend to forget that if we
loo% closely enough at the chain of arguments in favour of a particular position we
eventually come to an argument that is not justified by some other argument and the
validity of this final argument can only be based on its being tacitly or e#plicitly accepted
(accepted Con faithD).
?elsen6s argument was that there is a foundational argument implied (CpresupposedD) by
legal statements just as there is a foundational argument implied by religious statements.
In more technical language ?elsen applied a Cneo-?antianD (ideas of Immanuel ?ant)
approach to legal theory! an approach based on aspects or ?ant6s theory of %nowledge in
particular ?ant6s transcendental arguments.
To understand the theory we have to loo% at the normative chain of justification. "ne
starts will some simple legal-normative statement e.g. Cone cannot par% here (it is illegal
to do soD). If the person ma%ing this statement was as%ed why it was so she would
13
probably note that this regulation was validly promulgated by some city council judge or
administrator. If the 8uestioner pushes further the chain could be followed bac% e.g. that
the administrator was authori<ed to act in this area by an act of the legislature and the act
of the legislature was passed according to the procedures set down in the constitution.
This gets slightly tric%ier when one gets to the constitution itself. The document might
itself have been a modification of an earlier basic law or it might have been drawn up
under the authori<ation of an earlier basic law. +owever we will eventually come to a
point either so foundational or so early in the society6s legal history that he cannot go any
further bac% and no further justification can be offered.
9ollowing the whole chain through then leads to the following implication to assert the
(normative) validity of the individual legal rule ( one cannot par% on this streetD) is
implicitly to affirm the foundational lin% of the chain (e.g. C one ought to do whatever
(arliament ordersD) for the same reason that affirming an individual religious belief
implicitly affirms the foundational norm of the religion (one ought to do whatever Eod
commandsD) To put the matter differently the affirmation of the foundational norm is
CpresupposedD by any e#press or implied affirmation of individual legal rules. This
affirmation of the foundational norm of a legal system (Cone ought to do whatever is
authori<ed by the historically first constitutionD) is what ?elsen call the <G(*')'!(&D
or C2asic normD of the legal system.
9or ?elsen analysis and justification within law thus occurs at both a CstaticD and a
CdynamicD level. It is static in the way that legal norms authori<e the imposition of
sanctions for their violation. Its dynamic in the way that more basic norms authori<e the
creation of more specific norms by legal officials.
Re)*+$#!' a') ega T.e!(,
+ans ?elsen believed that all legal norms could and should be understood in terms of an
authori<ation to an official to impose sanctionsB If $ (:iti<en) does I (wrong action) then
2 (an official) is authori<ed to impose J (a sanction).
Thus ?elsen would want us to translate Cyou shall not murderD into the following
instruction to the officialB If any citi<en murders you ( the official) have the authority to
impose a sanction upon that person. $ccording to ?elsen it is not usually just a matter
within its discretion of the official. &here officials have an obligation to act this means
that there is another norm instructing a higher official to the effect if the lower official
15
does not impose a sanction in this situation you are authori<ed to impose a sanction on
that official @ and so it would go up the hierarchy.
R!'a) D7!(/#' (:. 1931)
Interpretive $pproach
>onald 0wor%in wor% has established a third alternative to legal positivism and natural
law theory @ $n interpretive theory of law. 0wor%in early writings challenged a particular
version of legal positivism a view which saw law as being comprised entirely of rules
and judges as having discretion in their decision ma%ing where the dispute before them
was not covered by an e#isting rule. 0wor%in offered an alternative vision of law in
which the resources for resolving disputes Caccording to lawD were more numerous and
varied and the process of determining what the law re8uired in a particular case more
subtle.
0wor%ins argued that along with rules legal systems also contain principles. 'egal
principles are moral propositions that are stated in or implied by past official acts (e.g.
=tatutes 1udicial decisions and constitutional provisions) while rules act in an Call or
nothingD way (if a rule applies it conclusive it decides the case) principles can apply to a
case without being dispositive.
2ecause there are (numerous) principles as well as rules there will be few if any
occasions where the law Crun outD and judges must decide the case without legal
guidance but legal determinacy might seem to be undermined by the abundance of
sometimes contrary material. Ander 0wor%in6s approach 1udges consider a variety of
theories regarding what the law re8uires in the area in 8uestion rejecting those that do not
ade8uately CfitD past official actions. $mong the theories that ade8uately CfitD the judge
chooses the one which best combines CfitD and moral value ma%ing the law the best it
can be.
C!'"$(*+$#%e I'$e(-(e$a$#!' (La$e( 7!(/")
In La7=" E&-#(e 0wor%ins argued that Clegal claimsD are interpretive judgments and
therefore combine bac%ward and forward loo%ing elements they interpret contemporary
legal practices as an unfolding narrativeD $ccording to 0wor%in every time a judge is
confronted with a legal problem he or she should construct a theory of what the law is.
16
That theory must ade8uately fit the relevant past Eovernmental actions (legislative
enactments and judicial decisions) while ma%ing the law the best it can be. 2oth law (as a
practice) and legal theory are best understood as processes of Cconstructive
interpretationB6 interpretation that ma%es its object the best it can be. :onstructive
interpretation depends upon being able to assign a distinctive value or purpose to the
object of interpretation. It is that value or purpose which serves as the criterion for
determining whether one interpretation of the object is better or worse than an alternative.
9or the constructive interpretation of law 0wor%in states that the purpose of law is to
constrain or justify the e#ercise of governmental power.
The past actions of officials whether judges deciding cases and giving reasons for their
decisions or legislators are passing statutes are the data to be interpreted constructively. In
ma%ing the law or an area of the law the best it can be the criterion is CfitD and moral
value. 9or some legal 8uestions the answer may seem easy because only one theory
shows ade8uate CfitD. +owever where the law is unsettled or inconsistent or where legal
8uestions are novel there will be alternative theories with ade8uate CfitD. $mong these
some will do better on CfitD others better on moral value. In ma%ing comparisons among
alternative theories the relative weighs of CfitD and moral value will itself be an
interpretive 8uestion and will vary from one legal area to another. 0wor%ing also writes
on C(political) integrityD the view that judges should decide cases in a way which ma%es
the law more coherent preferring interpretations which ma%e the law more li%e the
product of a single moral vision. 0wor%in wrote
C1udges who accept the interpretive ideal of integrity decide hard cases by trying
to find in some coherent set of principles about people6s rights and duties the best
constructive interpretation of the political structure and the legal doctrine of their
community. The interpretation of the law should to the e#tent possible e#press a
coherent conception of justice and fairnessD
0wor%ins writings can be seen as an attempt to come to terms with aspects of legal
practice that are not easily e#plained within the conte#t of legal positivism e.g.
1) The fact that participants in the legal system argue over even the most basic aspects of
the way the system wor%s (arguments over the correct way to interpret ambiguous
1.
statutes and over how one should apply constitutional provisions to new legal 8uestions)
not just over peripheral matters on the application of rules to borderline cases.
)) *ven in the hardest of hard cases the lawyers and judges in the case spea% as if there
were a uni8ue correct answer which the judge has a duty to discover and
4) In landmar% cases where the law seems on the surface to have changed radically both
the judges and commentators often spea% of the new rule having Calready been presentD
or the way law Cwor%s itself pureD
If as%ed Cwhat is the law regarding economic recovery for nervous distressD it is 8uite
possible that the lawyer will not be able to offer an authoritative legal source that spea%s
directly to the specific problem posed the 8uestion may be unsettled in laws. It may be
that the lawyer can point to certain statutes that have been made by courts at various
levels on related matters and writings of commentators suggesting that future decisions
on this 8uestion come out one way rather than another but it may be that none these items
directly and conclusively answers the 8uestion posed. The lawyer must go through a
certain %ind of reasoning process deriving an answer from the various materials. This is a
0wor%in act of interpretation. $nother e#ample is where there seem to be authoritative
legal sources directly on a point e.g. a lawyer may contend that the appellate court had
rendered a decision on an issue. Is that the end of the matter or there is need for
interpretationF
$ccording to 0wor%in a s%illed advocate could still argue loo%ing at all the relevant past
legal decisions that the appellate court decision was mista%en and should be revised or
overturned or that the decision was too broad and it will probably later be limited to a few
situations.
The interpretive approach has the advantage of reflecting and being able to account for
the way the law or certain areas of the law are subject to change and re-characteri<ation.
The strength may also be the approach wea%ness as it emphasis the possibility of revision
too much and the li%elihood of settledness too little and celebrates the notion of an
individual judge rethin%ing whole area of law thereby deflecting attention from the
important roles of consensus and shared understandings. $nother challenge to 0wor%in
is that it is legal theory for judges rather than the full theory of law it purports to be.
;a%ing the best theory of law one can from the relevant past legal decisions may be the
1,
appropriate prescription if one is a judge within the legal system. +owever why would
one ta%e the same perspective if one were merely a citi<en in the societyF
R#g.$ A'"7e(" T.e!(,
The idea most closely associated with 0wor%in6s wor% in legal theory was the Cright
answer thesisD the claim that all or almost all legal decisions have a uni8ue right answer.
There are three themes discussed throughout 0wor%in6s many discussions of his Cright
answer thesisD
1. 9irstly that this claim reflects our practice that even in difficult decisions judges and
lawyers discussing arguing and deciding cases act as if and tal% as if there were right
answers to be found. This reference to practice often elicits responses along the lines that
judicial Cright answerD rhetoric is just a matter of show or a matter of convention and
that judges in more reflective moments endorse a contrary position.
2. The second claim is that there are right answers to legal 8uestions for the simple reason
that judges must reach a result in the 8uestions placed before them and some answers are
better than others.
3. The third theme is that the best way and perhaps the only way to prove or disprove the
e#istence of uni8ue right answers in all legal cases is to consider individual difficult
cases and construct an argument that a particular result is the uni8ue correct one or to
the contrary to argue that in this case no one answer is better than the alternative.
R#g.$" (T.e Na$*(e !0 R#g.$")
Thin%ing about rights is a pervasive concern of modern analytical jurisprudence.
There are two competing theories as to the nature of rights. "ne emphasi<es will or
choice the other interest or benefit.
The &ill Theory propagated by +art is subscribed to by those who view the purpose of
law as being to grant the widest possible means of self e#pression to the individual the
ma#imum degree of individual self assertion. The theory is closely related to ideas of
sovereignty so that the only way reconciling conflicting wills is by postulating a superior
will which can overcome all opposition. It is closely related to the ideas of moral
individualism. The theory identifies the right bearer by virtue of the power that she has
over the duty in 8uestion. =he can waive it e#tinguish it enforce it or leave it
unenforced. Individual discretion is the single most distinctive feature of the concept of
1/
rights. The criticism of this view is it would seemingly allow all rights to be waived.
$nother criticisms of the theory focuses on a procedural problem. The substantive right
is one thing and having a right is to claim another.
The Interest (2enefit) theory argues that the purpose of rights is not to protect individual
assertions but certain interests. >ights are said to be benefits secured for persons by rules
regulating relationships. $ particular strength of the interest theory is that it covers all
types of rights (the so called socio-economic rights such as health care education a
minimum wage) as well as liberties
1a($>?*e( )e:a$e (T.e 'a$*(a#"$" %e("*" $.e -!"#$#%#"$" )e:a$e)
The attempt to separate law and morality came under criticism particularly by Eerman
thin%ers. G*"$a% Ra):(*+. was one such jurist. (rior to the )
nd
world war >adbruch
was a positivist and held firmly that resistance to law was a matter for personal
conscience to be thought out by the individual as a moral problem and the validity of a
law could not be disapproved by showing that its re8uirements were morally evil or even
by showing that the effect of compliance with the law would be more evil than the effect
of disobedience.
>adbruch after the war concluded that the Ga<i regime had e#ploited the subservience
to mere law and the failure of the legal profession to protest against the enormities which
they were re8uired to perpetrate in the name of the law. In this regard positivism in his
view had powerfully contributed to the horrors of the Ga<i regime. This led him to the
conclusion that '! -!"#$#%e e'a+$&e'$ !( "$a$*$e2 .!7e%e( +ea(, "$a$e) !( .!7e%e(
+ea(, #$ +!'0!(&e) $! $.e 0!(&a +(#$e(#a !0 %a#)#$,2 +!*) :e %a#) #0 #$
+!'$(a%e'e) $.e :a"#+ $e'e$" !0 &!(a#$,.
>adbruch6s conception of law as containing in itself the essential moral principle of
humanitarianism was applied in practice in Eermany in the trials of some war criminals.
The court for e#ample on ).
th
1uly 1/3/ while delivering a judgment against a woman
who had applied a Ga<i law to punish her husband stated that the statute that was used to
punish the husband was 76contrary to sound conscience and sense of justice of all human
beings66.
)5
"ne of the choices available to the court was to uphold the law as it was and let the
woman go unpunished. It is easy to ta%e the position that this would have been a bad
thing to do. The other option would have been to introduce a retrospective criminal law to
enable the court punish the woman. This option would have meant breaching a cardinally
important principle of criminal law that might have set a dangerous precedent. It means
therefore that in punishing the woman a choice had to be made between two evils
leaving her unpunished or sacrificing a precious principle of morality endorsed by most
legal systems.
1a($ thought that the vice of the use of the principle that at certain limiting points what
is immoral cannot be law or lawful is that it will serve to cloa% the true nature of the
problems with which we are faced and will encourage optimism that all the values we
cherish will fit into a single system that none of them has to be compromised to
accommodate another.
?*e( rejected the positivists6 view of law as being a one way projection of authority by
a sovereign. +e believed that this approach missed the need for cooperation between the
authority and the citi<ens for a legal system to wor%. 9uller stated law as 76the enterprise
of subjecting human conduct to the governance of rules66. It is a means to an end. 'aw
considered merely as order contains then its own implicit morality. This morality of
order must be respected if we are to create anything that can be called law even bad law.
Those in authority are not entirely free to create law. They must respond and adapt to
e#ternal order to factors beyond their control for e#ample aspect of human nature
society and the resources available. +e said that a test (a minimum threshold) had to be
passed before something could be properly called law. This test was not of a moral
content but rather of function form and procedure. ( T.e e#g.$ &#'#&*& +!'$e'$" 7e(e
)#"+*""e) #' $.e -(e%#!*" -(e"e'$a$#!' :, g(!*- 1). The position ta%en by 9ulller was a
reaction by recent positivists particularly +art. "ne could say that 9uller6s e#position on
natural law theory was a response to +art6s views.
@. A +(#$#A*e !0 -!"#$#%#"& a" a ega $.e!(,
)1
(ositivism as a theory of law has enabled the study of law as a scientific concept. It has
enabled the identification of elements of what constitutes law in any legal system. The
proponents of positivism have argued that it is possible to define what law is shorn of its
origins morals and sociological content. (ositivism as a theory determines the validity
of law on the formal criteria without any other input li%e morality and ethics. It is this
thrust of the positivist argument that to criticism of their definition of what is law. The
following are some of the criticism of positivism as a legal theoryB
(i) It has been argued that the essence of what constitutes law is not dependent on
its formal validity but on its moral content i.e. the law is not valid just because
it fulfils certain formal criteria as posited by positivist. If that were the case
then the Ga<i 'aws would be considered as good law yet they were
abhorrent.
(ii) It is impossible for any law to be shorn of its moral content or its social
conte#t within the society in which the law is applied. 2y insisting on
defining law on the basis of what CisD instead of what CoughtD the positivist
misses the point by failing to put into consideration that in many instances the
CoughtD influences what CisD when the same eventually becomes law.
(iii) The positivist approach to the law as a rule that is laid down or determined
does not address the reality that conduct in society is most of the time
influenced by other factors other than the threat of sanction.
(iv) The role of value judgment in a legal system cannot be e#cluded in the
definition of what the law is. It is impossible to analy<e law without ta%ing
into consideration subjective factors such as what is just within the conte#t of
a particular society.
(v) ;odels of conduct to which people ought to conform and by which their
actual behaviour is judged is therefore an CisD which the positivist are so
an#ious to preserve as inviolable is largely composed of CoughtsD.
(vi) The positivists ultimately agree that the CoughtsD ac8uire the character of law
which has been filtered through certain criteria of validity for instance
morality. The e#amples of such CoughtsD are precedents legislation and
custom. In the premises the difference between what CisD and what Cought to
))
beD lies solely in the fact that the former has passed one or other media which
alone regulates the use of the label ClawD.
(vii) The positivists cannot deny that judge made laws (precedent) and other ethical
considerations influence the judges and legislators in the determination what
constitutes law.
(viii) (ositivists admit that morals and other ideals are constantly wor%ing to shape
the content of the law. The naturalists ac%nowledge the need of positivism as
a guarantee of certainty and hence justice. In that sense natural law and
positivism are largely complementary.
(i#) The positivist obsession with what CisD in defining law confuses the formal
analysis of what constitutes law with the historical and functional analysis of
law. In this regard it is difficult to study what constitutes law and understand
what law is without studying the history and the function. 9or it to be
understood law must be put in conte#t of their origin and influence of the
past.
(#) :oncepts can only be understood with reference to the way in which they are
used and the ends which they serve all of which import social morals and
other considerations.
(#i) The separation of CisD and CoughtD is therefore confined to means of
identifying ClawD and at any given moment in time in regard to the criteria of
its validity.
(#ii) The division of CanalyticalD and CfunctionalD basis of studying of what is law
does not ultimately yield any certainty of what the law is. It leaves out many
aspects that has come to be understood as constituting law.
(#iii) In its postulates positivism in attempting to define what the law CisD has
become another theory of defining law. It has concepts which distinguish it
from other theories of law. Its approach to what is considered law is now one
of the method in which the study of jurisprudence is founded.
8. C!'+*"#!' .
)4
It may be stated that positivism has had a practical effect on the laws made by man over
the years. 9or e#ample 2entham6s thin%ing opened doors for state intervention and social
reform and certain pieces of legislation which were favored by 2entham and his disciples
were enacted. The (oor $ct of 1,43 was one such legislation. (roposals for improvement
of the law were reali<ed in the *nglish reform legislation of 1,4) the year of his
(2entham6s) death. In Eermany a civil code was adopted four years after 1hering6s death.
1hering died in 1,/).
In recent times it has been argued by people li%e >adbruch that positive law aided the
Ga<i regime in its commission of the war atrocities. The law ma%ing process is a
positivistic endeavor in line with the concept of internal morality propounded by +art.
:onstitutions are seen to some considerable e#tent as agreeing with the ?elsen6s theory
of the grund norm. 1udicial review mechanisms recogni<e the heirachy of laws and the
law ma%ing process.
The re-emergence of natural law more recently (the 9uller theory for e#ample) and the
argument for a minimum moral content in law might very well show that positivism is
not the final theory in the understanding of the nature of law.
)3