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l .

Jurisprudence
.,and Legal Theory
Chris C. Wigwe PhD (Leeds) BL

/
 I I

Jurisprudence
and Legal Theory
Chris C. Wigwe PhD (Leeds) BL

II I
Readwide Publishers
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Ghana

Jurisprudence and Legal111Cory by Chris Chizindu Wig we. LL.M, PlrD, BL

Published by R.e adwidc Publishers 2011

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 Veronica, LiSti1 Sop/, ic, St.:plutntc1
S,Jumwj Slraron, !I ris {jr~r.) tm I Murc~IS.
Acknowledgements
With gratitude to God Almighty, I .1cknowlcdgc and appreciate with great thanks,
the influence of the following highly learned distinguished academic authors,
jurist~ and judges: MT. Ladan, J. E. Penner, McCoubrey and White, Alastair
Hudson, Justice Niki-Tobi, B. B. Kcnyip, J.M. Elegido, Justice A. Katsina-Alu
and a host of others too numerous to men tion in this book. l also acknowledge
with many thanks the immense contributions of my former law students, George
Igonibo F., Amakoromo Mark, Dcckor Daridilo, Ohochukwu Chigoziri, Aladctuyi
Ademola, Uti Emctckol>a, AJabar.\ba Tity and Soberckon Sokdpirim who were
employed as Rcsc.1rch Assistants by my law firm (Chrismarcus Chambers) for
the purpose of putting this book together. Finally, I acknowledge the sacrifice
and contributions of my wife Veronica, who at the time of writing this book was
rounding up her Doctorate Degree program in Petroleum law at the University of
Dundee in Scotland United lUngdom but still found time to support this project.

Chris C. Wigwe. l.LB, LLM, PI!D (Leeds), BL

iv
Table of Contents
Acknowlcdgctncnts iv
Table of Cases xili
Table of Statutes xviii

Chapter One
Introduction to Jurisprudence 1

Nature ofJurisprudcncc 3
Introduction 3
.1.1 The Contributions and Development ofJurispruden e
by Some Philosophers 4
1.1.1 Jeremy Bentham 4

1.1.2 John Austin 6

1.1.3 Hart, H.L.A. 13

1.1.4 O.W. Holmes Jurisprudence 19

1.1.5 RudolfVon Ihering (1818-1892) 27

1.1.6 Eugene Ehrlich ( 1862- 1922)
1.1.7 Cicero
1.1.8 Karl Marx 31

1.1.9 Aristotle 41

1.1.10 Thomas Aquinas 53

1.1.11 Thomas Hobbes 54
1.1.12 John Finnis and his Natural law Theory 54
1. 1.13 Joseph Raz ss
1.2 Normative Character ofJurisprudence 64
1.3 Scope of]urisprudential Study 6s
1.4 Characteristics ofjurisprudence 67

Chapter Two
Nature of Law
2.1 lvlcaning and Funcbons of Law
2.2 The Relationship behveen Law and Morality
The meaning oflaw and morality
2.2.1 Theories that talk about the rdationship
between law and morality 77

v
 3.0.2. Professor Harts & Lord Delving 79
2.2..3 Where Problems have arisen in the Relationship
bdween Law and Mor;.llity
2.3 Where Morality Connects with Law
2.4 Pifference and Similarities between Law and Morality
2.5 !he Relationship between Law and Morality in Nigeria
2.6 Relabonship between Law and Justice
Introduction
2.6.1 Meaning of Law and justice
2.6.2 How Justice 1I11pingcs Upon Law

2.6.3 Basis of Allegation of Bias 99

2.6.4 Test for determining whether there was Bias in a case 101

2.6.5 Effect of Bias in Relation to Fair Hearing 102

2..6.6 Administrative bodies and their duty

to apply Natural justice 102

2.6.7 1l1c Right of a Party to be Heard before

Final Determination of a case in court 104
2.6.8 Duty of An Employer of Labour to Act in
Accordance with the Principles of Natural Justice 106

2.7 Relationship between Law and Religion 108

Introduction 108
2.7.1 What is law and what is Religion 109

2.7.2 The influence of Religion on Law uo

2.7.3 Religion and Freedom uo
2.7.4 How law will accommodate religious beliefs
when there is a looming conflict u~

2.7.5 Religion and the Realist School of thought u6

2.7.6 Religious Disunity and the Stabilizing Instrument of ~w uS
2.7.7 Religion and Natural Law theory 110

2.8 Social Change lll

Chapter Three
General Sources ofLaw 1.2.9
Introduction 129

3·1 Formal Sources of Law 130

3.1.1 Statutes/ Constitution 13 0

vi
 Tabk of cotrlcnts

3.2 Legislation 132

3.2.1 Primary Legislation 134
3.2.2 Subordinate/Subsidiary Legislation 135
3.2.3 Subsequent Legislation 136
3·3 Interpretation of Statutes 137
3·4 Equity as Source of Law 139
3.4.1 'The Nature Of Equity 140
3.4.2 Equity and Trust arc Based on Conscience 143
3·4·3 The Many Senses of Conscience 144
3·4·4 Concepts of Equity in Ancient Greek Philosophy 145
3·4·5 Kant's Notion of Equity 146
3·5 Custom as a Source of Law 148
J.$.1 Establishing Customary Law 150
3.5.2 Proof of Custom before Customary and Area Courts 152
3.6 Judicial Precedent 153
3.6.1 1he Doctrine ofjudicial Precedent and
the Hierarchy of Courts 158
3·7 International Law as a Source of Law 160
3·7·1 Sources of International Law
3.7.2 International Convention or Treaties
3·7·3 Custom as a Source of International Law
3·7·4 Elements of CustomaJ·y International La\
3.8 General Principles of Law
3·9 Judicial Decisions
3.10 Writings of Publicists 170
3.11 Ascertainment as a Source of Law 170
3.12 Codification ofLaws 171
3.13 Restatement of Laws 173
).J 4 Adaptation of Laws 175
3.15 Unification of Laws 179
3.16 Soft Law 1S1
3.17 Court Procedure Rules as Source of Law 1S4
3.18 The Relationship and Differences Betwet:n Law and
Other Related Concepts Order, Rules and Regulation
3.18.1 Regulation

vii
 3.18.2 Rules 189
3.18.3 Order of Court 189
Conclusion 190

Chapter Four
Titeories ofLanr 191
4.1 Natural Law 'H1eory 191
Introduction 191

4.1.1 What is Natural Law '1 hcory? 191

4.1.2 What Natural Law Theories Concerns 195
4.1.3 Tangible Benefit of Natural Law ·n1cory 195
4.1.4 Greek Classical Naturalism 199
4.1.5 Plato (Idealism and Legalism) 200

The obligation to obey law by Plato 201

4.1.6 Jus Gentium (International Law) 204

4.1.7 1l1e Medieval Period 204

4.1.8 1l1omas Aquinas 2 04

4.1.9 Renaissance and Reformation period 206

4.1.10 Social Contract and Natural Law (Thomas Hobbes) 2.08
4 .1.11 John Locke (1632- 1704) 2. 09
4.1.12 Social Contract by J.J. Rousseau (1712- 1778) 2u
4.1.13 International Law ( Grotius) 213
4.1.14 Teleological Analysis 2.14
4.1.15 19th and 2oth Centuries Periods of Naturalism 215
4.1.16 Hart's Natural Law theory 2.16
4.1.17 The Restatement ofNaturnl Law Theory (Finnis) uS
4.1.18 The Morality of Law (Fuller) ll.2.

4.2 Positivist Theory of Law

4.2.1 Jeremy Bentham and John Austin's
4.2.2 Command theory oflaw
4.2.3 Criticism ofJ. Bentham and J. Austin l11eory 22.8

4·3 Classical Marxist 'Jheo1·y l.JO

Introduction 230

4·3·1 Marxist Position on Law

viii
 Table tJf ont~uts

4.3.2 Karl Marx Analysis of the State 233

4·3-3 Relevance of Mar..'<..isn1 to the World Order 233
4·3·4 Critical Asscss1nent of Karl Mat·x 235
4 ·4 Realism 239
4·4·1 The Realist Theory 240
4.4.2 1\rgun1cnts of Realist Authors-
4·4·3 Oliver Wendell Hohnes 241
4 -4-4 Karl Llewellyn 242
4·4·5 Jerome Frank 243
4.4.6 Critical Asscsstnent of the Realist 'Ihcory 244
4·5 Historical School ofJurispt·udence 249
4·5·• Fredrick Karl Von Savigny (1779- 186) 249
4.5.2 Critical Asscssrnent ofSavigny's theory 251
4.6 Sociological School ofjurisprudence 254
Lntroduction 254
4.6.1 Roscoe Pound (1870 - 1964) 255
4-6.2 Critical Analysis of Pound's the ory 256
4·7 The Pure Law 'Theory 257
4.7.l Hans Kelscn (1881 - 1973) 257
4.7.2 Norms 258
4·7·3 'Ihe Basic Norm 259
4·7·4 Kclsinian Sanctions 260
4·7·5 International Law 260
4.7.6 Critical Asscss1nent of Hans Kelsen's view 261

Chapter Five
lslainic J urisprudcnce 267
Introduction 267
5.1 Historical Dcveloptncnt Of lslatnic Jurisprudence 269
5.2 Sources oflslanlic Law 270
5·3 Schools ofThought 271
5.3.1 Hanafi School 271
5.3.2 Malik.i School 272
5.3.3 Shafi' I School 272

S·3·4 Han"lbali School 273

LX
5·4 Contributions and Development of the Four Rightly Guided Caliphs to
Islamic Jurisprudence 275
1. ABU BAIU~ (632.- 634) 275
2.. UMAR (634- 6'~4) 276

3· UTHMAN (644·- 6s6)

4· ALI
5·5 Characteristics oflslamicJurispruJencc
5.6 Examination and the Analysis of the Sources and
Concepts in Islamic Law 279
Introduction 279
5.6.1 Divine Sources 2.80

5.6.2 The Q!aran as a Source of Law 2.8 0

5.6.3 Sunnah as a Source of Law 282.

5.6.4 Human Sources 2.83
s.6.s ljma as a source of Law 2.83
5.6.6 Qjyas as a Source of Law 285
5.6.7 Ijtihad as a source oflaw 286
s.6.8 Customs 2.87
5.8 'TI1e Five Pillars of Islamic Jurisprudence
5.8.1 Faith in Allah
s.8.2. Prayer (Salah)
5.8.3 Zakat
5.8.4 Fasting (Sawm) 2.93
s.8.s Hajj 293
5·9 Judicial Precedent in Islamic Law 29+
5.10 'The Idea ofLaw Underlying Isl:unkJurisprudcnce 195
5.11 The Sovereign's Supreme Command of Law 195
5.12 Components and aim oflslamic law 199
a. The components 199
u. Aim of Islamic Law 300
5.13 Stability and Change in Islamic Law JOL

5.14 Individua.l and Collective l.ntercsts Synthesized By Islamic Law 303

5.15 Law and Morality in Islamic Law JO+
5.16 'TI1e Concept Ofjustice ln Islamic Law 307
5.17 Rule of Preventive Measures in Islam 308

X
 jul'jspnufmct• at1d Legal71~c;ory

5·4 Contributions and Development of the Four Rightly Guided Caliphs to

lsla1nic Jurisprudence 275
1. ABU BAKR (632- 634) 2.75
2. UMAR (634- 644) 276
3· UTHMAN (644 - 6s6) 277

4· ALl 278
5·5 Characteristics of Isl~mic Ju risprudence 279
s.6 Examination ;1nd the .Analysis of the Sources and
Concepts in Ishunic Law 2.79
Introduction 279
5.6.1 Divine Sources 280
5.6.2 The Qj.lran as a Source of Law 280
s.6.3 Sunnah as a Source of Law 282
s.6.4 Hmnan Sources 283
s.6.s ljma as a source of Law 283
s.6.6 Qjyas as ;1 Source of Law :z.8s
s.6.7 Ijtihad as a source oflaw 286
s.6.8 Customs 287
s.8 'The Five Pillars oflslamicJurisprudence 291
s.S.t Faith in Allah 291
5.8.2 Prayer (Salah) 291
s.8.3 Zakat 29 2.
s.8.4 Fasting ( Sawm) 293
s.8.5 Hajj 2.93
5·9 Judicial Precedent in Islamic Law 294-
5.10 The Idea ofLaw Underlying Islamic Jurisprudence 295
5·11 1he Sovereign's Supreme Command of Law 295
$.12 Components and aim oflslamic law 299
i. The components 29 9
u. Aim of Islamic Law 300
5·13 Stability and Change in Islamic Law 301
5·14 Individual and Collective Interests Syntl1esized 13y Islamic La\ 303
5·15 Law and Morality in Islamic Law 304-
5.16 'TI1c Concept OfJustice ln Islamic Law 307
5.17 Rule of Preventive Measures in Islam 30S

X
 5.18 Ln litutionalizat ion ofju tice in Is larnkjurisprudence 309
s.18.1 b solute ta ndards ofJusticc in Sharia 312
5.18.2 LcgalJus ticc in Islam 313
5.18.3 Valu e f Legal Justice 314
5.18.4 Adn"linistration ofjustice 316
s.t8.s Types of Legal Justice 317
5.18.6 Principles fNa tu ralJustice 322
5·19 Enforcen1cnt. nd E ffc ts of C ustomary Law in N ig ria 327
s.2o How the Repugnancy tests came about 327
5-21 The Effec t ~ of oloniali m on u stomary L.c1w 328
$.22 E£fect of the Appli catio n of the Te t of Enforceability of
Cu to mary L aw n th e Application of Islanuc Law in Nigeria 330
5-23 1l1e Concept of onst it utionalism in lsi. ntic Law 333
5.23.1 Cons titutionalism in Is lamic Law 334
5.23.2 The Sources of the unwritte n Islamic Constitution 335
5.23.3 Basic Norms in ls lan1ic Constituti n l1l1eory 336
5.24 tate and Sovereig nty in Islam 337
5·25 Dev iaUon from Islamic theory in Practi ce 338
$.26 Sample Islamic onstitutions 340
J. Pakistan 340
2. Iran 344
3· Saudi Arabia 348
4· Sudan 349
5· Egypt 351
6. Tunisia 354
7· Morocco 355

Chapter Six
Analysis of Fundamental Concepts and Doctr· s 359
6 .1 The Concept ofDuties 359
Introduction 359
6.1.1 Meaning ofDuties 3S9
6.1.2 Categories of Duties
6.1.3 Types of Duties
6.1.4 Rationale for the C reation of Duties

X1
 6.1.5 Some Theories of Duties
6.2 'The Concept of Legal Personality
Historical Reflections
6.2.1 Legal Personality
6.2.2 Types of Legal Persons 373
6.3 'The Concept of Rights 381
6.3.1 Theories ofRights 383
Criticisms 384
Hohfcld's Scheme of Rights 387
6.3.2 Other Rebtcd Concepts 390
6.3.3 Classification of Rights 393
6.3.4 Nature of Rights 400
6.4 Possession in Law 402.

6.4.1 Types of Possession 404

6.4.2 Modes of Acquiring Possession 406
6.5.1 1he Concept of Ownership 408
Bibliography 412
Index 416

Xll
Table of Cases
A.N.P.P v B.S.I.E.C (2oo6) u NWLH (pt 992) sBs CA.
Ababio v Nscmfo (1947) 12 W.A.C.A 127 at p.128.
Abaclw v Gaui Fawdzi11mi (2ooo) 6 NWLR (pt 66o) 228.
Abbcles v Gbadomosi (2003) 13 N1¥Ln 512 CA.
Abraham v Olonmfrmmi (1991) 1 NWLR (pt.165) 74-75.
Abttbakar v Clwks (2007) 18 NWLR (Pt. 1066) 386 SC.
Acllebe v Nwosu (2oo3) 7 NWLR (pt 818) 103 CA.
Adcdibu v Adcwoyiu (1951) 13 WACA 191.
Adelckc v O.S.I-l.A (2oo6) 16 NWLJ{ (pt wo6) 6o8 CA.
Adcloja v Oguntayo (2002) 6 NJ!VLR (pt 710) 593 CA.
Adescye v Taiwo (1956) 1 F.S.C. 84.
Adesubokm1 vs. Yinusa (1971) N.N.Lf{ 77
Adctouu Oladcji (Nig) Ltd v Nigerian Breweries Pic (2007) s NWLl{ (pt 1027) 415 SC.
Adisa t' Oyinwola (zooo) 10 NWLR (pt 674) 116 CA.
Aero plot Soviet Airlines v UB.A. (1986) 3 NWLR (pt 27) 188 at 199.
A .G Abia Sttlte & Drs. V A.G Fcdemtion. (2oo3) 4 NlVLR (Pl.8o9) 124 SC
Agell v Tortya ( 2003) 6 NV.tLR (pt 8.1 6) 385 Cit.
Akinsanya v U.B.A Ltd (1986) 4 NWLR pt (35) 273.
Akoh v Abuh (1988) 3 N ltVLR (pt.85) 696.
Akpan vs. State (1972) 2 U.l.L.R, 457·
Alajcmba Uke vs. lro (zoo1) 11 NHTLR (pt.723) 196.
Alaye v State ( 2007) 16 NvVLR (pt 1061) 483 CA.
Alemuloke v President I badan South East Grade ( 2006) 6 NWLR (pt 977 ) 6 12
Alja & Ors. v Arepo (1963) N.N.L.R 95
Alhaji vs. Ma'Ji (2002) 4 NWLl~ (pt.756) 46 C.A.
Alkamawa vs. Bello <.o/Anor (1998)6 SCN} 127.
Anglo-Norwegian Fisheries (1951) IC} Rep. 116.
Anobtu v State (1976) 5 S.C 49·
Asogwa v Chukwu (2003) 4 NWLR (Pt. 811) 540 CA.
Assylwu Case (Columbie~ v Peru) (1950) IC} Rep. 266.
Bello vs. A.G. Oyo State (1986) s N .W.L.R (pt.45) 52S.

XJll
 )urispnulcucc mul Lc!gnl 11Jt:ory

Bowel v Roy 476 US 693 (1986)

Brotrik Motors Ltd v Weme1 Bank Ltd (1983) 1 SCNCR. 296.
Balcknor~McCiean v Inlaks Ltd (198o) 8 -11 SC 1
Buhari v Obasaujo (zoos) 2 NWLR (pt 910) 241.
Burgess vs. Floreucc Hospital (1955) IQB 349
Cameroon v Nigeria (1998) p 275, para28.
Cantwell v Connecticut 310 US 296 at pp.303-304 (1940 ).
Charzon Factory (1928) PCI} Series A 110.17.
Cook vs. Sprigg (1899) A.C.572.
Dairo v U.B.N Pic (2007) 16 NWLR (pt 1059) 99 S.C
Dalharu v Turaki ( 2003) 15 NWLR (pt 843) 310 SC.
Danbaba v State (zooo) 14 NWLR (pt 687)396 CA.
Daniyara vs.lyagin (2ooz) 7 NWLR (pt.766) 346 CA.
Debenltam vs. Mellon (188o) 6 AC, 24.
Democratic Republic of Congo v Belgium (2002) JC} Report 2002 PJ para57, 58.
Dokubo-Asar·i vs. Federal Republic of Nigeria ( 2007) 12 NWLR (pt.1o48) 320
DPP v Smith (1961) AC 291.
E.B.N Ltd v Halico Nig Ltd (zoo6) 7 NWLR (pt 980) p.568 at 571-573.
Eastern Green Land (Denmark v Norway) (1933) PC!] series AlB No. 53 at pg 69.
Edet v Essien (1932) 1.1 NLR 47.
Egharevba v Oruonghac (zoot) H NW.L R (pt 724) 318 CA.
Elliot vs. Joicey (1935) A.C. 209 @ 238.
· Eshugbayi Eleko 11 Officer Administering the Governmeut ofNig. (1931) AC 662
Exparte Sekgmc Case (1910 )2KB 576.
Fagoji v Kano Native Authority (1975) NRNCR 57·
Fasakita Foods (Nig) Ltd vs. Shosanya (2oo6) 10 NWLR (pt.987) p .u6
Fawehirmmi v Legal Practitioners Disciplinary Committee (unreported).
Ferodo Ltd v Ibcto Industries Ltd (zoo4) s NWLR (pt 866) 317 SC.
Gana v Bornu Ncltive Authority (1954) 14 NLR587.
Gubba v Gwandu Native Authority (1947) 12. WACA 141.
Haliru Usman vs. Hajara Usman (zoo3)11 NWLR (pt.83o) 109 CA.
Hyam v DPP (1974) 2 AER 41.
Idoniboye Obu V NNPC (2003) 2 NWLR (pt 8os) 589 S.C.

xiv
 ]urisprudmce ami Legul11tcory

Bowel v Roy 476 US 693 (1986)

Bronik Motors Ltd v Wcmll Ba11k Ltd (1983) 1 SCNC/{ 296.
Bucknor-McCiecm v Inlaks Ltd (z98o) 8 -11 SC 1
Buhari v Obllsar~jo (2oos) 2 NWLR (pt 910) 241.
Burgess vs. Florcucc Hospitlll (1955) IQB 349
Cameroon t' Nigeria (1998) p 275, para28.
Ca11twcll v Counecticut 310 US 296 at pp.JOJ-J04 (1940).
Charzou Factory (1928) PCJ] Series A 110.17.
Cook vs. Sprigg (1899) A.C.572.
Dairo v U.B.N Pic ( 2007) 16 N l.YLR ( pt 1059) 99 S.C
Dalharu v Turaki ( 2003) 15 N ~VLR (pt 843) JlO SC.
Danbaba v State (.2ooo) 14 NWLR (pt 687) 396 CA .
Daniyan vs.ly,~giu (zoo2) 7 NltVLl~ (pt.766) 346 CA.
Dcbenham vs. Mellon (188o) 6 AC, 24.
Democratic Republic of Congo v Belgium ( 2002) JC] Report 2002 PJ paras7, sB.
Dokubo-Asari vs. Federal RcpulJiic of Nigeria (2007) 12 NWLR (pt.1o48) 320
DPP v Smith (1961) AC 291.
E.B.N Ltd v Halico Nig Ltd (2oo6) 7 NJVLR (pt 98o) p.s68 at 571-573.
Eastern Green Laud (Dcumark v Norway) (1933) PCIJ series A/B No. 53 at pg 69.
Edet v Essien (1932) l l NLR 47·
Egharevba v Oruonghac (2001) u NWLR (pt 724) 318 CA.
Elliot vs. Joicey (1935) A.C. 209 @ 238.
· Eshugbayi .Eleko v Officer Administering the Govermneut of Nig. ( 1931) AC 662.
Exparte Sekgtne Case (1910 )2KB 576.
Fagoji v Kano Native Authority (1975) NRNCR 57.
Fasakin Foods (Nig) Ltd vs. Shosauya (2oo6) 10 NWLR. (pt.987) p .126
Fawehinnmi v Legal Practitioners Disciplinary CommiHee (unreported).
Ferodo Lt'd v Ibeto Indrlsfrics Ltd (2004) 5 NWL.R (pt 866) 317 SC.
Gana v Bornu Native Authority (1954) 14 NLR 587.
Gubba v Gwandu Native Authority (1947) 12. WACA 141.
Haliru Usman vs. Hajara Usman (200J)11 NWU{ (pt.B30) 109 CA.
Hyam v DPP (1974) 2 AER 41.
ldoniboye Obu V NNPC (2003) 2 NWLR (pt 8os) 589 S.C.

xiv
 ·n ,blc of cases

Ijedioralt 6- Ors. v Umc & Ors. (1988) 2 NWLR (pt.74) 5·

Inakoju v Adeleke (2007) 4 NWLR (Pt1o2s) 423 SC
International Agricultural Iudustrics v Chika Bros (1990) z NWLR (pt.124) 70.
)acobss v L.C.C (1950) A.C 301
josiah v State (1985) 1 N"JIVLR (Pt 1) 125
Karimatu t' Yakubu Parko.
Kcnon v Tekam (2ooz) 14 NWLR (pt.732) 12 SC.
Kimby and others v Jvfilitmy Governor of Gongola State and others (1988) 2 NWLR
(pt 77) 444·
Labinjo vs. A bake (1924) 5 NLR JJ.
Lakaumi v Attorney-General (west) 1971. J UJLR 210.
Ladokc University ofTcclmology v Z.O Ogtmwobi (zoo6) 4 NWLR (pt 971) 569 CA.
Laoye v Oyetunde (194~1) A.C. 170.
Lebile v Reg. Trustees C & S (2003) 2 NWLR (pt.8o4) 399 SC.
Lewis v Bankole (1908) 1 NLR 81.
Lipede v Sonckan (1995) 1 SCN] 184.
Maida v Modu (2002) 8 NWLR (Pt. 768) 132
Maizobo and Ors v Sokoto Native Authority (1957) z FSC 13.
Malone vs. Metropolitan Police Force (1979) 2 WLR 700.
Meryer vs. Nebraska, 262 U.S. 390, 399, 43 S.Ct, 625,626 (1923).
Military Governor of Imo State vs. Chief B.A.S.Nwauwa (1997) 2 NWLR ( pt.490) 675.
Mit~ister ofInternal Affairs v Okoro (2004) 1 NWLR (pt 853) 58 CA.
Mojekwu vs. Ejikcme (zooo) 5 NWLR (pt.657) 402.
Mojekwu t's.lv!ojekwu (1997) 7 NWLR (pt.512) 283.
Mullick vs. Mullick (1925) L.R.. 59 Ind. App.245
Nwankwoala v State (zoo6) 14 NWLR (pt.1ooo) 663 SC.
Nauru v Australia (1993) 32 JLM 46.
Ndukwc v LPDC (2007) 5 NWLR (pt.zoz6) 1 SC
Nicaragua v U.S.A (1986) ICJ Rep. 14;
Nigeria Bank for Commerce and Industry v Staudard (Nig) Eugiueeri11g Co. .Ltd
(2ooz) 8 Nl¥LR. (pt.768) 104 CA
Nigerian Airport Authority v Okoro (1995) 1 SCNJ 292.
NigeriatJ Airways Ltd v Okutubo (2002) 15 NWLR (pt.790) 376 CA.

XV
 ·n,blc of cases

lfcdioralr & Ors. 11 Ume & Ors. (1988) 2 NWLR (pt.74) S·

lnakoju v Adelckc (2007) 4 NWLI~ (Pt1025) 423 SC
International Agricultural Iudustries 11 Chika Bros (1990) 1 NWLR (pt.124) 70.
Jacobs's v L.C.C (1950) A.C JOt
josiah v State (1985) 1 NWLR (Pt 1) 125
Karimatu v Yakub11 Parka.
Kenon v Tckam (2001) 14 NWLR (pt.732) 12 SC.
Kimby and others v .1\tli/itary Governor of Gongola State and others (1988) 2 NWLR
(pt 77) 444·
Labinjo vs. Abakc (1924) 5 NLRJJ.
Lakcmmi v Attorncy-Ge11eml (west) 19711 UILR 210.
Ladokc University ofTcclmology v Z.O Ogwzwobi (zoo6) 4 NWLR (pt 971) 569 CA.
Laoyc v Oyehmde (1944) A.C. 170.
Lcbile v Reg. Trustees C & S ( 2003) 2 NWLR (pt.8o4) 399 SC.
Lewis v n,mkolc (1908) 1 NLR 81.
Lipede v Sonckan (1995) 1 SCN] 184.
Maida v Modu (2oo2) 8 NWLR (Pt. 768) 13.2
Maizobo at1d Drs v Sokoto Native Authority (1957) 2 FSC 13.
Malone vs.lvfetropolitatJ Police Force (1979) 2 WLR 700.
Meryer vs. Nebraska, 262 U.S. 390, 3991 43 S.Ct, 625,626 ( 1923).
Military Governor ofImo State vs. Clzief B.A.S.Nwauwa (1997) .2 NWLR (pt.490) 675.
Mirzister of Internal Affairs v Okoro (2004) 1 NWLR (pt 853) 58 CA.
Mojekwu vs. Ejikcme (.2ooo) s NWLR (pt.657) 402.
Mojekwu vs. Mojekwu (1997) 7 NWLR (pt.512) 283.
Mullick vs. Mullick (192.5) L.R. 59 Ind. App.245
Nwankwoala v State (2oo6) 14 NWLR (pt.1ooo) 663 SC.
Nauru v Australia (1993) 3.2 ILM 46.
Ndukwc v LPDC ( 2007) 5 NWLR (pt.1026) 1 SC
Nicamgua v U.S.A (1986) IC] Rep.l4i
Nigeria Bank for Commerce and lr1dustry v Staudard (Nig) Engineering Co. Ltd
(200,2 ) 8 NWLR (pt.768) 104- CA
Nigerian Airport Authority v Okoro (1995) 1 SCN] 292.
Nigerian Airways Ltd v Okutubo (2002) 15 NWLR (pt.790) 376 CA.

XV
 Nnamal. v Stule (2oos) 9 NWLI{ (pt.929) 147·
Nuamdi Aztkiwc Uuivcrsily '' Nwafor (1999) 1 NWLlt (pt.sBs) us.
Nortla Sc:a Ccmtincnl Shelf Cast:s (1929) IC} Rep. 44·
.Nuclcc1r Tests Cc1se (Australiil v Fmucc)(1974) JC) report z68, para .•,.6
Obll R.A.A Oycdirau v Oba Alc:biosrt II (1992) 7 SCNJ (pi 1) p.187 at 193-4
Odugbo v Aim ( 2001) t ~l N~VUt (pt 732) ~fS SC
Odu v Fmvchimui (2005) 15 Nl..YLJ< (pl 9-J-9) 578 C.A.
Ogun v J\scnwlt (zoo2) 4· NWL/{ (Pt. 756) 208 CA.
Ojistw v Aiycbclc/riu (2001) 11 N WLI~ (pi 723) '1-4 C A .
Okafor v Stc~lc (197 6) 5 S.C .u.
Okocbor v Police Council (2003) 12 NWLR (pt.834) 444 SC.
Omega BmJk J>fc v Govcrmueul of Ekiti Sllllc (2007) 16 NWLR (Pt.w61) 445 CA.
Onttgonnva liS. J.G.J> (1991) 5 NWLR (p1.193) 593.
Owouiyi v Omoloslw (196 1) 1 ALL 403 at 409.
Omvo vs. Nwafm· (1996) 6 NlVL.R (p1.456) 584.
Omvuka v S/(t/c (1970) 1 t\LL NU{ 159.
Ot~yct~kau v Adde (1957) t W.L.R 876.
Orji v Anyasu (zooo) 2 Nl..Y.LR (pi 643) 1 CA.
Oycdeji v Akiuyclc (2002) 3 NWLR (pt.755) 586 CA.
Paquette 1-labclla (1900) 175 U.S 677.
PalrickMagit v University of Agriculture Makurdi (2oo6) ALL FWLR (pt 298) lJJ.J at
1345
Piracy Jure G cntuwn (1934) IC) pg.s86
R vs. Labour (1923) WLJ~ 1.
Rabiu vs. Amadu (2003)5 NWLR (pt.813) 343 CA.
Ra!Jiyu v Abasi (1996) 7 SCN} 53
Rm1some-Kuti vs. A.G.Fed eration (1985) 2 N l VLR (pt.6) 21.
Reynolds v United Stales, 98 US.145 (1879).
Rose v. Ford (1937) AC 826.
Rotimi Anwcc:hi v JNEC (2007) 18 N\¥ LR (pt.w6s) 170.
Rungumawa '' Rwtgut~wwa (2002) 1 NWLR (pt.747) 153 CA.
Safeti v Safeti (2oo7) 2 Nl¥LR (pt.1017) 56 C.A.
School District ofAbingtott TI>hmsltip v Schcmp 1963.
 '1itblr: oj ul~l.'...

' cn1ttvn Ltd v Altd/,wtl s,J,concs L td (1962) A. ' ~146 at •f 77·

Sc ifooclv.Asii •r (1 9.29) .2 KU 480
114Jila '' Stc1tc (200 7) 18 N l ' LR (Pt w 66) 2-fO CA .

Sirros vs. l\t1oore (1 975) QB, p.118.

'oul111z cz v Miller (192 ) .A. . 51S.
'v,th E c1sl Africa 11 Lil1cria (1966) 1 J re]J pg 6 .
tale v Falc1da arui Ors ( 1tJ 7~) 2 LL N R 219.
S11bcru ' '. WHIIOIIIt (1 957) 2 F.S. . JJ.
Temple of Prcuh ihcar ( 1962) I ) Rep. Pg 6 .
7hc Lo t11s . .,a sc (Fnwct: 11 T11rkcy) (1927) P If ScnesA. No w .
Tn ifw and o. Llcl v Post Office ( 1957) 2 QB 325 a t 360 .
'f sani iJ'"l v Ba11chi Native A1ttlwrity (1957) NRNLR 73·
U.S D1plomntic awl OJI.SIIlar t(llf i11 Tchm n (us I ' In m ) (198o) ICJ rep.J.
Ugh-'ll'' Amrw11c (_ uv7 ) 12 NWLR (pl10..J.S)) 367 S
United Stalt:s v Lee, 455 US 252 (1982).
Umvcr_ity of L 1gos v Aigoro (1984) u S pg 152 at 159 ..
Uttih v Omyivwe (1991) 1 Nti\!LR (pt 166) at Pg 205.
UJVt lifu vs. A.G.Bc11rld Stak ( 1982) 7 SC 124
~VAE ll Aki11 kwm zi (200 2) 7 Nll\fLR (pt.76o) 3·1-2
Walla c: v jeffrey, 472 US.38 (1985).
Wt:rmfwk vs. Morgan ( JSSS) 20 QBJ 635.
West 111d Gold lvli11ing Compa ny v T1w King (1950 ) 2 KB p g J y l .
vVest Virgi n it l State Board of Education v Banrctte 319 US 62 -J. (1943)
Wimbl~do11 (1923) PClf Rep. SerA No 1.

Wisco11 sin v Yo d er, ~fo6 U.S 205 (1975).

Yakajc 11 Hairt: (2003) 10 NWLR (Pt.828) 27 0 A.
Ynkc1 ai v Nigerinn Air Force (2002) 15 NWLR (Pt. 7 90) 2 9 4 -\.
Yakuuu I' tate (2007) 9 NWLR (Pt 1038) 1 A.
Yesukll v Ascmota (1982) 3 NWLR (Pt ) -J-19
Young v Bri to/ Aroplmrc C. Ltd ( 19-J-4) KB 718.
Zize--1 v . Nlwmmm (2002) 5 NWLR (pt. 76o) 24 A.

xvi i
Table of Statutes
1. 1999 Constitution of the 1--cdcral Republic of Nigeria Cap C23 LPN 2.007

S.a
S.t (3)
S.4
S ..s
S.12 (a)
S.236
5.248
S.254
5.274
2. Evidence Act, CAP £14, LPN, 2.004

5.2
S.14 ( t) ( 2) (3)
3· Evidence Law (Lagos Laws) 1973 CAP 39
s.s6 (•)
s.ss
4· Eastern Nigerian Laws 1963 CAP 49
S.t (2) (C)
5· Nigerian Laws 1948, CAP 63
S.t (4) c)
6. Sharja Court of Appeal Law (Northern Nigeria Law) CAP l.ll 1963
5.14
7· Criminal Procedure (Northern State) Act, CAP C+1-, LFN, 2oo4-
8. Criminal Procedure Code CAP C38, LFN, 2004
S.364
S.26 (a)
9· Criminal Procedure Act, CAP C4a, LFN, 1004

S.IO (2.)
10. Criminal Code (Federal and Lagos Laws) 1958 CAP +2.
5.319 (2)
u. Customary Courts Law 1956

xviil
 TaMe ofslututes

S.82
t2. High court Civil Procedure Rules of Kano State
Order 5 Rule 12(1)
IJ. Laws of Eastern Nigeria 1963 CAl> 32
14. Legal Practitioners Act, CAP L u, LPN, 2004

S.12 (2)
as. Local Govcn1n1ent Laws of Ogun State J978 CAP 63
S.173
16. Ronuu1 Statute of International Crianinal Court
Article 2l (t) (c)
17. Statute of International Court Ofjustice
Article 38( 1)
Article .S9
18. Universal Declaration on 1-luman Rights 1948
19. Police Act, CAP P 19~ LFN, 2004

S.24
5.24 (2)
2.0. Vienna Convention on the Law ofTreaties 1969
Article 2

Article 31
Article 36
2.1. .A n"lerican Rcstaternent Act 2002.
22. Criminal Code CAP C38, 2004
23. Constitution of Nigeria, 1960
24. Constitution of the Federal Republic of Nigeria, 1963
25. Constitution of the Federal Republic of Nigeria, 1979
26. Constitution of the Federal Republic ofNigeria, 1999, CAP Cz3,
LFN, 2004.
27. Indian Constitution 1931
28. Burmess Constitution 1957
29. Land Use Act 1978, CAJ> Ls,
30. Electoral Act, CAP E6, LFN, 2004.

31. Petroleum Act, CAP Pto, LFN, 2004.

xix
32. Pen. 1 ode, AP P3, LrN, 2004.
33· rimina.lJusticc Act, 9 1 Ll"lN 1 2004.

34. Lag · • w 1973 cap 52

35· lligh urt L. w Lagos St:1te 1973 ca 52
36. High o url. law Northcm Nigeria 1963, cap 40High Court Law
astern Nigeria 1963 ·ap 6 1
37· Hi.gh ourt Law WN 1939 cap 44
38. H.igh curt 1964 No 9 o( 1964 mid-western Nigeria
39· ASlo Au trali.l Anti Terroris m Act 2005 Crianinal Code of Australia 1995
40. lnt rnalional onvcntio 11 on Civil and Political rights 1991
41. American on.slilutiun 1791
42. ln ternation.1l oven. nt on Civil Land Political rights (1966)
43· Funda.men l.1l de ·laration ofhuman rights 1948
44· High ourt Ln s of River State of Nigeria vol3 cap 62; 1999.

x.x
 Chapter One

Introduction to Jurisprudence
Jurisprudence is the philosophical study of arts and science oflaw. lt is the fulcrum
around which the idea, philosophy, theory and indeed, practice oflaw revolves. It
is a statenlcnt of indisputable fact, that Jurisprudence is the heartbeat of the law.
The law breathes and lives through the very theory and practice of jurisprudence.
It is an area of law that Lawyers, Jurists, Law Students and even Legislators alike
practice every day in their respective endeavours. Jurisprudence ren1ains an area
of the law so con11non but so difficult to defmc like the characteristics of othe r
con1n1on life phenornena like "air" and "water'' etc. What would be the reply if
one is asked the questions: What is air? What is Wate: ? 'The difficulty in answering
these questions does appear to be siinilar to that encountered if one is asked what
jurisprudence is. The answer can only come after series of thoughts and even at
that, such answer n1ay not be exhaustive or represent a comprehensive meaning
and definition of jurisprudence. The definition of jurisprudence by legal academic
authors docs appear to have been influenced by the views expressed by the
various schools of thought in their attempt at defining law in the early century.
For exan1plc, a writer who shares the sentiments and views oflaw as expressed by
Naturalist, Positivist, Sociological or I-listorical schools of thought are likely to b e
influenced by views expressed by any of these schools in defining jurisprudence.

Apart fr01n the problen1 of definition, one other paradox of this all important area
of Jaw is that, it is one of the subjects or area of law that students and lawyers are
n1ost affrighted. However, this fear can vividly be described as sin1ply a !:iCarecrow
or the proverbial child running away fronl his 1nother trying to bath him because o f
fea r of cold water which is n1cant to clean and refresh his body and even soul. Just
like the proverbial fear of the child for cold water that \vUl set hin1 frc;!e, students of
jurisprudence are always af1'righted by the acrobatics and legal gyn1nastics involved
in the study ofjurisprudcncc. To 1nost students therefore, jurisprudence has always
being a •nystcry, deep rooted in abstract conjecture, exarnination and analysis of
law. The universal fear of students for this subject influenced and nlotivated the
author in the n1ost enthusiastic nlaruler to undertake the publication of this book
"vith the deepest sense of modesty.
Nature of Jurisprudence

Introduction
1he terrnjurisprudence is derived from two Lat in words nan1ely ''uris'' meaning ''of
law" and "prudence" m ea ning "skill of science': Put together, the term Jurispruden ce
which becomes a derivative of th e L . .tin word, uuri sprud entia" means "knowledge
of law". '!he inquiry and the foundation of law including the viviparous nature
of domestic and intern:1tion ;Jl legal order begin and e nd with the study of this
subject. It can be argued that it inquires, examin es and analyze the concep t oflaw
that an intelligent lay person of speculative curiosity a lawyer might consider as
not only philosophically ab tract but very confu ing in comprehension. What is
law? Where does law con1.e fron1? I law a Sci en ce? Is it in the field of humanity?
A practicing lawyer or a judge would think that questions of this sort are at b est
irrelevant to what he docs, at worst n ai:ve, i1npractical and even chil dlike. For
instance, how high is up.

Over the years, and through tn u ch juristic ink, th e term jurisprudence has come to
mean the philosophy oflaw rather than the law itself. This m eans that Jurisprudence
is the study of the different schools t hat defined the law. When we look carefully
at these explanations it wo uld see1n that 90% of Jurisprudence restricts itself to
the study of the philosophies of law like the Naturalist, Historical, Sociological or
Realist schools.

Jurisprudence also refers to the study o f the nature, scope, functions, relevance,
purpose, efficacy and reforn1 of th e law. It refers also to th e study oflegal concepts,
doctrines, norn1s, and various institutional legal systen~ . It also deals with the
study of subjects like 1noralityj justice and Islan1 by relating law with them and
examining with critical analysis their n ature of freestanding or inter-relationship.
It is n1ore helpful to think o f jurisp r uden ce as a jigsaw puzzle in wh..ich each pi ce
fits with the others to produce a whole picture. Take the meaning of law which
Jurisprudence is pri.Inarily about for instance, to 0 liver Wendell Holmes bw i what
the judges in Massach usetts say in the court roon"l and n othing n1 re pr tentious
is what law is. But to John Austin, law is a command whi his"' de by .1 superior
being for an inferior bei.ng which must be bad d by san tion. It i · .u-gued in this
book that the so-called Realist and Positivist schools in legal theory :ubc pr cisdy
fron1 a failure to realize that the two schoo ls o f thought are addr s ing th san1e
issue. Both contribute to the understanding o f th n1caning flaw but not in the
san1e context. So frotn this it could be seen that the m ain aim ofjurispruden e i t
see how the vario us iews on law, whether it is ;1 science, philosophy or arts relate
to one ano ther anJ try to resolve the inco m patib ili ty if any, that may arise.

1.1 The Contributions and Development of

Jurisprudence by Some Philosophers
1.1.1 Jeremy Bentham

Jeremy J3entham, the chief proponent of the IIOn ll ative approach to jurisprudence,
favours a rational basis fo r the reform of the law. Therefore Bentham ventures
into what the law o ught to be rather tlu n what the law is. Bentham· s ambitio n in
life was to create a "pm JIIO IIII OIJ .. a complete Util itari:m code of law. So Bentham
did not only propose many legal reforms bu t also gave moral principle on which
they sho uld be in the interest of the people i.e. "the greatest good for the greater
number of the people':

In h is writings he stateJ that tl1e principle of morals and legislation can be ~ce n
thus:

"Nature has placed mankind under tiJc govermmce of two sovereign

masters, pain nnd pleasure. i t isf or them nlonc to point out udwt we ougl1t
to do, as well as to cletennine wlwt 111e shall do. On the one lwnd, the
stcmdard of right all(l wrong, on tl1e other hand the chai11 of causes and
effects, are fa stened to their thro11 e. They govcm us i11 all we do, in all we
say, in all we thi11k ... "

Bentham was highly influenced by Joseph Priestly. To Bentham, Priestly wa~ the
firs t philosopher who wrote on the greatest happiness of tl1e greatest number as
th e foundatio n of m oral and legislatio n. Joseph Priestly's book: I11e First Principii!
of Govcmment a11d Liberty wri tten in 1798 seems to have greatly influenced Jeremy
Bentham. The book contai ns "the good and happiness of the society which should
b e in the interest of the majority of the ci tizens of the state. To him the gre.1t
standard by which everything relating to that state must finally be determined
is the happiness of the majority." Ben tham ' s jurisprudence seems to be in tiH~
interest of the common good. H is m oral philosophy is to the effect that when
laws are m ade there sho uld be a moral dimension to it. To Benth.un only laws thlt
best serve the com mon interest or tl1e people sho uld be enacted. That is the b.1sic
characteristic of his philosophy.

Bentham's campaign for social and political reforms in all areas, m ost not.1bly
the criminal law, had its theoretical basis in his utilitarianism, c..xpounded in his
 Introduction to the Principles of Morals and Legislation, a work written in 1780
but not published until 1789. Ln it he formulated the principle of utility, which
approves of an action in so far as an action has an overall tendency to promote
the greatest amount of happiness. Happiness is identified with pleasure and the
absence of pain. To work out the overall tendency of an action, Bentham sketched
.a specific "happiness-making" calculus, which takes into account the intensity,
duration, likelihood, extent, etc of pleasures and pains.

Ln Bentham's theory, an action conforming to the principle of utility is right or at

least not wrong; it ought to be done, or at least it is not the case that it ought not
be done. But Bentham docs not usc the word 'duty' here. For Bentham, rights
and duties are legal notions, linked with the notions of command and sanction.
What we call moral duties and rights would require a moral legislator (a divine
being presumably) but theological notions arc outside the scope of his theory. To
talk of natural rights and duties suggests, as it were, a law without a legislator, and
is nonsensical in the same way as to talk of a son without a parent. Apart from
theoretical considerations, Bentham also condemned the belief in natural rights
on the grounds that it inspired violence and bloodshed, as seen in the excesses o f
the French Revolution.

Bentham at first believed that enlightened and public-spirited statesmen would

overcome conservative stupidity and institute progressive refom1s to promote
public happiness. When disillusionment set in, he developed greater sympathy
for democratic reform and an extension of the franchise. He believed that with
the gradual improvement in the level of education in society, people would b e
more likely to decide and vote on the basis of rational calculation of what would
be for their own long-term benefit, and individual rational decision-making would
therefore, in aggregate, increasingly tend to promote the greater general happiness.

Bentham had first-hand knowledge of the legal profession and he criticized it

vehemently. He also wrote a highly entertaining Haudbook of Political Fallacies
1824, which deals with the logic and rhetoric of political debate.

Bentham figured prominently among the small number of men who becan1e
known as philosophical radicals, but his Utilitarianism was not much discussed
until the latter half of the nineteenth century. His prolific writings were published
in part by devoted disciples, but some were published for the first tinle in the 19 4 os
and after, and the publication of his complete works is still in progress. Among
these writings are Aualysis of tile Logic of Dcontic Coucepts and On Laws ill Gmeral
containing a carefully elaborated theory of jurisprudence.

s
 N.1t11r~ ofjllrispmdcllcc

Introduction to the Principles of Morals and Legislation, a work written in 1780

but not published until 1789. In it he formulated the principle of utility, which
approves of an action in so far as an action has an overall tendency to promote
the greatest amount of happiness. Happiness is identified with pleasure and the
absence of pain. To work out the overall tendency of an action, Bentham sketched
·a specific "happiness-making" calculus, which takes into account the intensity,
duration, likelihood, extent, etc of pleasures and pains.

In Bentham's theory, an action conforming to the principle of utility is right or at

least not wrong; it ought to be done, or at least it is not the case that it ought not
be done. But Bentham docs not use the word 'duty' here. For Bentham, rights
and duties arc legal notions, linked with the notions of command and sanction.
What we call moral duties and rights would require a moral legislator (a divine
being presumably) but theological notions arc outside the scope of his theory. To
talk of natural rights and duties suggests, as it were, a law without a legislator, and
is nonsensical in the same way as to talk of a son without a parent. Apart from
theoretical considerations, Bentham also condemned the belief in natural rights
on the grounds that it inspired violence and bloodshed, as seen in the excesses of
the French Revolution.

Bentham at first believed that enlightened and public-spirited statesmen would

overcome conservative stupidity and institute progressive reforms to promote
public happiness. When disillusionment set in, he developed greater sympathy
for democratic reform and an extension of the franchise. He believed that with
the gradual improvement in the level of education in society, people would be
more likely to decide and vote on the basis of rational calculation of what would
be for their own long-term benefit, and individual rational decision-making would
therefore, in aggregate, increasingly tend to promote the greater general happiness.

Bentham had first-hand knowledge of the legal profession and he criticized it

vehemently. He also wrote a highly entertaining Haudbook of Political Fallacies
18241 which deals with the logic and rhetoric of political debate.

Bentham figured prominently among the small number of men who became
known as philosophical radicals, but his Utilitarianism was not much discussed
until the latter half of the nineteenth century. His prolific writings were published
in part by devoted disciples, but some were published for the first tin1e in the 1940s
and after, and the publication of his complete works is still in progress. Among
these writings arc A11alysis of the Logic of Deontic Concepts and On Laws in Gmeral
containing a carefully elaborated theory of jurisprudence.

s
 Jurispnulwcc: mul Legal Tl1~"ry

1.1 .2 John Austin

Austin was born to a Suffolk merchant family, and served briefly in the military
before beginning his legal training. He was called to the Dar in 1818, but he took
on few cases, and quit the practice of law in 1825. Austin shortly thereafter was
appointed to the first Chair ofJurisprudence at the recently established University
of London. Commentators have found evidence in Austin's writings of the German
Pandectist treatment of Roman law, in particular, its approach to law as something
that is, or should be, systematic and coherent.

He did some occasional writing on political themes, but his plans for longer works
never came to anything during his lifetime, due apparently to some combination
of perfectionism, melancholy, and writer's block. His changing views on moral,
political, and legal matters also apparently hindered both the publication of a
revised edition of Province ofJurisprudence Determined, and the completion of a
longer project started when his views had been different.

Much ofwhatever success Austin found during his life, and after, must be attributt!d
to his wife Sarah, for her tireless support, both moral and economic during the
later years of their marriage. 'TI1ey lived primarily off her efforts as a translator
and reviewer and her work to publicize his writings after his death, including the
publication of a more complete set of his Lectures 011 Jurisprudence.

Austin's work was influential in the decades after his passing away. E. C. Clark
wrote in the late 19th century that Austin's work "is undoubtedly forming school o f
English jurists, possibly of English legislators also. It is tl1e staple of jurisprudence
in all our systems of legal education:' A similar assessment is made by H.L.A.
Hart, looking back nearly a century later: "within a few years of his death it was
clear that his work had established the study of jurisprudence in England ~ As
will be discussed, Austin's influence can be seen at a number of levels, including
the general level of how legal theory, and law generally, were taught and the use
of an analytical approach in legal theory. At such levels, Austin's in1pact is felt to
this day. Hart could write that "Austin's influence on the development of English
Jurisprudence has been greater than that of any other writer:· lt can be seen that
Austin's particular command theory of law became almost friendless, but today
I it is probably best known from Hart's use of it as a foil for the elaboration of
I Hart's own, more nuanced approach to legal theory. ln recent decades, some
tl1eorists have revisited Austin's command theory (and other works), offering new
I characterizations and defences of his ideas.

6
Austin's Analytical Jurisprudence and Legal Positivism

Austin came under the influence ofjeremy Bentham, and Bentham's utilitarianism
is evident though with some differences, in the work for which Austin is best
known today. On Austin's reading of utilitarianism, Divine will is equated with
Utilitarian principles: "The commands which God has revealed we must gather
from the terms wherein they are promulgated. 11te command which he has not
revealed, we must construe by the principle of utility': 11tis particular reading of
utilitarianism, however, has had little long-term influence, though it seems to have
been the part of his work that received the most attention in his own day. Some
have also seen Austin as being one of the early advocates of "rule utilitarianism'~
where Austin urges that we analyze not the utility of particular acts, but that of
"classes of action': Similarly, Austin shared many of the ideas of the Benthamite
philosophical radicals. He was "a strong proponent of modern political economy,
a believer in Hartleian metaphysics, and a most enthusiastic Malthusian. Austin
was to lose most of his "radical" inclinations as he grew older. His importance to
legal theory lies elsewhere-his theorizing about law was novel at four different
levels of generality.

Firstly, he was arguably 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:' 11tough analytical
jurisprudence has been challenged by some in recent years, it remains the dominant
approach to discussing the nature of law. Analytical jurisprudence, an approach
to theorizing about law, has sometimes been confused with what the American
legal realists called "legal formalism"-a narrow approach to how judges should
decide cases. 11te American legal realists saw Austin in particular and analytical
jurisprudence in general, as their opponent in their critical and reform-minded
efforts. 11wugh, the realists were simply mistaken; unfortunately, it is a mistake
that can still be found in some contemporary legal commentaries.

Secondly, his work should be seen against a background where most English judges
and commentators saw common-law reasoning (the incremental creation or
modification oflaw through judicial resolution of particular disputes) as supreme.
In general, one might look at many of the theorists prior to Austin as exemplifying
an approach that was more "community-oriented"-law as arising from societal
values or needs, or expressive of societal customs or morality. By contrast, Austin's
view is one of the first, and one of the most distinctive theories, that views law as

7
 )urlspru,fwa wul Legul TlwJry

being.emporium-orient.:J or viewing law as mostly the rules imposed from above

from certain autlwriz.:d pedigreed sources. More "top-down" theories of law,
like that of Austin, better fit the more centralized governments and the modern
political tl1eories about government of modern times

Third, witlun analytical jurisprudence, Austin was the first systematic exponent of
a view oflaw known as "'legal positivism." Most of the important tl1eoretical work
on law prior to Austin had treated jurisprudence as though it were merely a branch
of moral theory or political theory: asking how the state should be governed?
When are governments legitimate? And under what circu mstances did 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
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.

Legal positivism asserts or assumes that it is possible and valuable to have a

morally neutral descriptive or "conceptual" theory oflaw. The main competitor to
legal positivism, in Austin's days of popularity, has been natural law theory. Legal
positivism docs not deny that moral and political criticism of legal systems is
important, but insists that a descriptive or conceptual approach to law is valuable,
both on its own terms and as a necessary prelude to criticism.

1he term "legal positivism" is sometimes used more broadly to include thi!
position that we should construct or modify our concept oflaw to remove moral
criteria oflegal validity; or to include a prescription that moral values should not
be used in judicial decision-making. We do not think anything turns on whether
the term is used more broadly or more narrowly, as long as it is clear which sense
is being used. Additionally, while Austin could be seen as supporting some of the
views associated with the broader understanding of"legal positivism'~ he further
argues that there is need for more evidence and argument before the point should
be accepted.

There were theorists prior to Austin who arguably offered views sin1ilar to legal
positivism or who at least foreshadowed legal positivism in some way. Among
these would be Thomas Hobbes, with his amoral view of laws as the product of
Leviathan David Hume. With his argument for separating "is" and "ought" which
worked as a sharp criticism for some forms of natural law theory, which purported
to derive moral truths from statements about human nature and jeremy Bentham,

8
 N.1111re of jurlspr11dwcc

with his .1ttacks on judiciall.l\vmak.ing and others like Sir William Blackstone, who
justified such lawmaking with natural-law-like justifications.

However in spite of the views expressed by other philosophers, Austin's famous

fommlation of what could be called the "dogma" oflegal positivism is as follows:

T71c existence of lmv is one thing; its merit or demerit is another. Wl1ether
it be or be not is one enquiry; whether it be or be not conformable to an
assumed standard, is a different em]uiry. A law, which actually exists, is n
law, though we happen to dislike it, or though it varies from the text, by
which we regulate our approbation and disapprobation.
While Austin saw himself as criticizing natural law theory, a view shared by most of
the legal positivists who followed him, the extent to which the two schools disagree,
and the location of their disagreement, remains a matter sharply contested by John
Finnis and Joseph Raz.

Fourth, Austin's version oflegal positivism, a "command theory of law" which will
be considered in some detail in this work, was also for a time, quite influential.
Austin's theory had similarities with views developed by Jeremy Bentham,
whose theory could also be characterized as a "command theory:· Bentham, in a
posthumously published work, would define law as assemblage of signs declarative
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: such
volition trusting for its accomplishment to the expectation of certain events which
it is intended such declaration should upon occasion be a means of bringing to
pass, and the prospect of which it is intended should act as a motive upon those
whose conduct is in question.

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 011ly appeared posthumously, late in the 2oth century.

Detailed Austin's Views

Austin's basic approach was to ascertain what can be said generally, but still with
interest, about all laws. Austin's analysis can be seen as either a paradigm of, or a
caricature of, analytical philosophy because his discussions are full of distinctions
and narrow or thin in argument. 'TI1e modern reader is forced to fill in much ol

9
 the mcta-thcoretic.11, justificatory work, as it cannot be found in the text. Wl1cre
Austin docs articul.1tc his methodology and objective, it is a fairly traditional one:
he Mcndcavorcd to resolve a law taken with the largest signification which can be
given to that term properly into the necessary ami essential clements of which it
is composed~

As to what is the core nature of law, Ausl'in's answer is that laws "properly so
callcdM arc commands of a sovereign. l-Ie 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 concq>ts that arc 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 co mplied with.

"Rules" arc general commatHls applying generally to a class, as contrasted

with specific or individual commands.

"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.

'TI1e "sovereign" is defined as a person or determinate body of persons

IIj who re(cives habitual obedience from the bulk of the population, but
who docs 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 including "laws by remote analogy':

Austin also wanted to include \vithin "the province of jurisprudence" certain

"exceptions," items which did not fit his criteria but which should nonethdess be
studied with other "laws properly so called": repealing laws, declarative laws, and
"imperfect laws" or l,nvs prescribing action but without sanctions.

In the criteria set out above, Austin succeeded in delimiting law and legal rules
I
from religion, morality, convention, and custom. However, also excluded from

I! i
I'
"the province of jurisprudence" were customary law (except to the extent that
the sovereign had, directly or indirectly, adopted such customs as law), public
• I,
international law, and parts of constitutional law. 'TI1esc exclusions alone would
]1. !li make Austin's theory problematic for most modern readers .

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