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04 Jan

JURISPRUDENCE 1.2 CONCEPTIONS OF LAW

1.3 CONCEPTIONS OF LAW AND SCHOOLS OF JURISPRUDENCE.

Jurisprudents and their ideas have been classified into groups called “schools”. The members of a school hold certain ideas and propositions in common. The schools are numerous but can be summarised into the following conceptions. We have:

The Imperative/Positive Conception: Looks at law as a command/imperative issued by a sovereign. Proponents include; John Austin, Hans Kelsen[1]. Adherents are concerned with the law as “it is” rather than the law as “it ought to be”.  Under this conception, we have the positivists and realists.

Ethical/Philosophical Conception: Law is looked upon as an instrument of justice. Law is appraised by ideals such as “right” “just” “good” “bad”. Only good law is law. They posit that law must conform with justice. Jeremy Bentham noted that law should seek to promote the greatest good for the greatest number of people. He notes that Security, Equality, Liberty and Abundance are the four major utilities. The law must balance the individual interest with that of the communal interest. This is the utilitarian school. We also have the Natural Law School. Some adherents include; Plato who saw law as an expression of reason. Noting that reason is the ideal law and the law of nature is reason. He notes that laws are necessary only when reason fails. As law would be unnecessary if all men decide to be reasonable and rational. Aristotle: sees reason as the ideal law of human conduct. He who is guided by reason is a virtuous man. Hugo Grotius: sees natural law as the dictate of right reason. Thomas Hobbes: notes that natural law forbids man from doing that which is destructive of his life. Richard Hooker: sees natural law as that which regulates the behaviour of both non-rational and human beings. John Locke: notes that natural law is both law of reason and law of God. John Jacques Rousseau sees natural rights as innate and natural. He however noted that man is born free but everywhere in chains. Karl Marx views the law as an instrument of oppression in the hands of the capitalist rulers and the exploitative capitalist system. Sees law as the will and interest of the capitalists against the poor, weak and defenceless.

Institutional Conception: looks at law through the institutions of the State like; religious organisations, business organisations, courts, police, prison, customs, mores, habit and pattern of conduct of individuals and groups. Ubi societas, Ibi jus where there is a society, there must be law. Under this, we have the Historical School and Sociological School which focuses on primitive and contemporary institutions respectively. Adherents here include Carl Von Savigny who posited that the laws of a nation expresses the peoples’ common conviction… the spirit of the people peculiar to them. He called this their Volkgeist. Eugene Ehrlich is also a major proponent here. He remarked that true law is spontaneously observed and needs no enforcement. That the conduct and values of the society determines the rules laid down rather than the rules laid by the sovereign.

Social Control Dimension: sees law as a means of controlling the society. Roscoe Pound in his social control theory posits that law should ensure the optimal functioning of the society… it should be an instrument of social engineering.

In conclusion, all these views and conception of the laws are neither totally correct nor totally wrong. They were the perspectives which their writers were viewing the law from. Which school do you support?

Topic 1.4 DEFINITIONS OF LAW.

Aristotle: “reason without desire”. Cicero: “highest reason implanted in nature which commands what ought to be done and forbids the opposite”. Blackstone: “a rule of civil conduct prescribed by the supreme power in a State commanding what is right and prohibiting what is wrong” Prof Holland: “A general rule of external human action enforced by a sovereign political authority” Thomas Hobbes: “the word of him that by right has command over others”. Professor Goodhart: “any rule of human conduct which is recognized as being obligatory”. Oliver Wendell Holmes: “a prediction of what the courts will do”. Karl Marx: “will of the ruling class”. John Austin: the command of an uncommanded commander addressed to the people… and backed up by punishment[2]. He also notes that “law is a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”. Jeremy Bentham: “that which the sovereign adopts as conduct to be observed in a certain case by certain persons”. Saint Thomas Aquinas: An ordinance of reason promulgated by the one who has the care of the community. He notes that there are four types of law viz: natural law, eternal law, divine positive law and human positive law.

The sociological school views law as the glue that holds the society together.

A.V. Dicey’s Theory on Rule of Law postulates that the law should be supreme[3], there should be equality before the law[4] and an independent judiciary.

Parkerson notes that “the definition of a term must use other terms and since any definition of those terms must use still others, any definition must consist ultimately of undefined terms”.

Therefore, an attempt to precisely define law is an attempt in futility. In conclusion, what is your position, who’s definition do you prefer? What is your own definition of the law?

 

[1] In his pure theory of law where he sought to separate moral, subjective and extra legal considerations from the law.

[2] HLA Hart criticised the command theory and notes that not all laws are commands. For example, a gunman may command and people obey…. But that doesn’t make his command law. He notes that first; there is a habit… this habit over time becomes good and acceptable. Second: the habit is considered as a standard… failure to conform attracts criticism from others. This makes it a social rule Third stage: The social rule becomes part of the legal system and evolves into legal rules which become law.

[3] See Section 1 of the 1999 Constitution for example, Taxas V White.

[4] This is depicted by the blindfolded lady holding a sword and a scale.

Isochukwu

Quite eccentric really

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