.

"'

-~

SCHOOL OF LAW AND SOCIAL SCIENCES

DEPARTMENT OF LAW

MODULE LL26 / Li 4 ~)

~-UJ.\.ISFil-UI>.EW~E I

Mabvuto Sakala
LLB (UNZA}, LLM (Nottingham}
First Edition 2008
©ZAOU
ISBN

,,
 I. Preface and Acknowledgment 1

II. Course Outline iii

Course Aims iii

UNIT:1 Historical Introduction to the Philosophy of Law 1

1.1 General Introduction 1
1.2 Definition 1
1.3 The nature of the subject 2
1.4 Value of the subject 3
1.5 Historical Introduction to the Natural Law Philosophy 4
1.6 Natural law school of though 5

I. Plato 5
1. 7 Greek Theorists 7
I. Aristotle 8
1.8 Roman Empire theorists 8
1.9 The impact of Christian Doctrines Medieval Era 9

I. St. Augustine 9
II. St. Thomas Aquinas 10
a) Eternal Law 10
b) Divine Law 10
c) HumanLaw 10

1.10 Impact of the Reformation Period 11

a) Advent of Science 11
1.11 -Liberal Democracy 13
I. John Locke 13
II. Jean Jacques Rousseau 14

UNIT2 The Positive School 16

I. John Austin 18

a) Law as Commands 18
b) Sovereignty 19
c) Sanctions 20
 II. Kelsen 20
III. Jeremy Bentham and the Principle of Utilitarianism 28

UNIT3 The Hart Fuller Debate: (What the law is and what it
ought to be.) 32
3.1 Hart 32
3 .2 Professor fuller 34

UNIT 4 Sociological School 37

4.1 Factors that Influenced the Rise of Sociological School 37
4.2 Ihering(l818-1892) 41
4.3 Ehrlich (1862 - 1922) 41
4.4 Roscoe Pound 42

UNIT 5 Historical School of Thought 45

5. l Savigny (1779) - 1861) The Popular Spirit) 46
5.2 The Law in Primitive Traditional Societies 46

UNIT6 The Marxist Theories on the. Law and the State 50

UNIT 7 Realist School (Legal Realism) 54

7.1 Causes or Influence of the Theory 54
7.2 Justice Holmes 57
7.3 John Chipman Gray(1839-1915) 58

UNIT: 8 Law and Morality 60

8.1 Definition
8.2 Some Specific Differences between Law and Moral 62
8.3 Should the Law Enforce Norms of Morality 63
8.4 Lord Devlin 63
8.5. Professor Hart 64
8.6 John Stuart Mill 66

UNIT 9 Law and Politics 68

9.1 How the Law is used to perpetuate interest of Political Parties 70
9.2 Separation of Law and Politics 70

UNIT 10 Law and Justice 72

10.1 Concept of Justice 72
10.2 Justice today-A General Approach 72

UNIT 11 Law and Social Order 76

11.1 Actual Mechanisms of Ensuring of Social Order 76
11.2 The Anarchists 77
 Preface and Acknowledgment

It has been argued in many circles that the legal profession in Zambia is getting saturated

and that there is therefore the need to control or regulated the entrants into the profession.

I totally agree that the legal profesi6n is for noble men and women and those who desire
_;:.

to join it must put up with vigorous securitization both in terms integrity and academic

and professional excellency.

· I however totally disagree with those you seem to be suggesting that the regulation of the

entrants to the professional should be by way of restricting the training of lawyers to the

Law School of the University of Zambia only.

Admittedly it is human nature to instinctively pursue measures of self preservations. It is

my belief that Zambia needs more lawyers than we have at the moment and if at the end

of the day we end up having more lawyers than we need, let the best 'products' compete

in the market.

I therefore fully subscribe to the philosophy of the Zambia Open University of "A

University without Walls" I hope this module is my contribution towards breaking those

'walls' and I thank the University for affording me that opportunity.

1
 I did not find it necessary to put my acknowledgment under a separate heading as I in fact

do not have any specific acknowledgments to make save to say that I acknowledge that

the materials used in this module are not my 'inventions'. I have used several materials

from renowned authors on the subject of the science of the law to express the ideas
-::

herein. I personally take full responsibility for the expression of those ideas.

This publication is purely meant for academic use and I believe I am fully excused for not

individually naming the sources of my ideas.

To my students, I wish to advise that this module is meant to provide you with growiding

in the subject of jurisprudence. In order to fully appreciate the subject, you will in

addition need to refer to the materials that has been prescribed and recommended for the

course. I would recommend that each one of you at least obtains a copy "An Outline of

the study of Jurisprudence" by Professor Carlson Anyangwe of the Law School of the

University, as the said book is not only easily accessible, both in terms of cost and

availability, but also use friendly for this level.

I also urge you to personally research into the practical applicability of the principles set

out herein to the Zambian legal system and beyond.

I wish you well

ii
 I. Course Outline

Course Aims

This course covers classical and traditional theories of jurisprudence. The aim of this

course is to introduce students to the classical theories of law as they evolved through the

contribution of the various schools of jurisprudence. The course also aims to enable students

understand how the concept of law has developed under different social, political, economic and

cultural conditions, and how these have shaped its content and form at different historical epochs

and in different societies of the world.

Course Objectives

By the end of the course students should-

(a) show appreciation of the fact that law is conditioned by societal values that exist in any given

society and that this is demonstrated by the historical development of the idea of law;

(b) demonstrate knowledge that law and legal institutions do not operate in a vacuum but in the

context of the social, political and cultural forces of any given society;

(c) express understanding of the fact that law has always been seen to be a useful instrument in

the maintenance of public order and as a conflict-resolution mechanism in any society;

(d) appreeiate the fact that law as an institution devised by human beings has its drawbacks and is

capable of being used to attain undesirable or oppressive ends.

iii
 Course Content

Topics to be covered will include the following:

1. Historical introduction to the philosophy of law;

2. Definition of law in the light of the principal schools of jurisprudence;

3. Central concepts in jurisprudence which include rights and duties, legal obligations,

legal personality, possession and ownership.

4. Formal and non formal sources of law,

6. Law as distinguished from other techniques of social control, such as morality, custom,

religion, power, etc.

Method of Teaching

The course is offered a part of the distance program of the University. Students are

required to attend the Residential School at the beginning of the program where a

,: compressed and intense lecture is given on the whole of the course. Thereafter student

will have to do the research and studying on their own.

Course Assessment

iv
Continuous assessment 50%

1. 2 assignments each carrying 25% of the total marks of the entire course

assessment;

2. Final Examination carry' s 50% of the entire course assessment.

Prescribed reading

Carlson Anyangwe (2005), An Outline of the Study of Jurisprudence, UNZA Press,

Lusaka.

R.W.M. Dias (1985), Jurisprudence. London: Buttterworths.

H. Gross, Philosophy of Law. Belmont.

Recommended reading

P. Harris (1984), An Introduction to Law, 2nd edition. London: Weidenfeld and

Nicholson.

B. Russell (1984), History of Western Philosophy. London: Allen and Unwin.

V
 UNIT ONE

Historical Introduction to the Philosophy of Law

Introduction

Law, like any other field of study is guided by some thoughts and principles to whi~h it

traces its origins. The subject of jurisprudence constitutes the foundation to which the

beginnings of law can be traced.

Objectives:

At the end of this unit you should be able to:

a. define concepts related to jurisprudence

b. explain the nature and value of jurisprudence

c. discuss the philosophical basis of the natural law school of thought

d. compare and contrast the theoretical and philosophical contributions of key

proponents of the natural law school of thought

.-:-
Topic One: Definition

What is Jurisprudence? The term Jurisprudence is derived from a Latin word

'jurisprudential'. The word 'Juris' means 'Law' while the word 'prudential' means

knowledge. Laterally the word Jurisprudence therefore means 'the knowledge of law'.

Jurisprudence is a subject which deals wit the philosophy of the law. It provides the

general theoretical foundation of the law. It deals with the thought of the law rather than

1
 the substance of the law. It seeks to answer the question what is law and what is the

nature oflaw.

The nature of the subject

Jurisprudence differs in substance from other laws. It does not constitute a set of legal

rules and principles derived from authorities to solve practical problems. It is concerned

with the thought of law at times known as the science of law or the philosophy of law. In

jurisprudence, there is less arguments about substantive subject of law but it instead

provides for a greater plain to one's own thinking or approach. Jurisprudence in the main

deals with the following:

-::::

2
 a) It looks at the structure, uses and functions of law. It tries to define certain legal

concepts like a right, a duty, justice, equality etc. It also tries to assess the

meaning words such as possession and ownership.

b) Jurisprudence compares and investigates the relationship between the law and

other disciplines, such as the relationship between law and history,_ law and

politics, law and economics etc. it looks at how the law exists and functions in

society.

c) Jurisprudence also tries to bring up the essential and common principles of law

that exist in different legal systems. Its investigation into law involves the

investigation of abstract, general and theoretical nature of the law. Jurisprudence

does not make an exhaustive inquiry into each different legal systems; it is merely

general

Value of the Subject

Jurisprudence aims to develop a lawyer with a broader outlook. A lawyer who looks at

the social impact of a judicial decision or legislation. Jurisprudence sharpens one's own

logical techniques, reduces excessive concentration on legal rules for their own sake. It

enhances the intellectual horizons of a lawyer and encourages original thinking.

Activity one

1. What is jurisprudence?
2. What are the main characteristics of jurisprudence?
3. What is the purpose of studying jurisprudence?

3
 Topic Two: Historical Introduction to the Natural Law Philosophy

In pre scientific era, people could not explain certain natural phenomena. For example

they could not explain why water freezes at some temperature and evaporates at some

other temperature. They attributed these unexplainable natural phenomena to the fact that

there must be some force somewhere, controlling these things. They thus developed a

proposition that everything in the world was governed by laws emanating from this force

which was referred to as the Superior Being. This was referred to as natural law. It was

said that calamities were a punishment for not following the natural law.

The development of the law has been influenced greatly by these early beliefs and the

cultures, customs and religions that were developed by the people from these beliefs.

Religion has played a major role in the definition of the law. In the very early times, law

and religion were largely undifferentiated. However, some societies have developed

certain independent circular legal systems. Ideology such as Marxism is yet another

factor in defining the law.

-:::,
Some modern writers have defined the law as the rule laid down for the guidance of an

intelligent being by another intelligent being having power over him, and that, usually

there are some sanctions meted out when that law is breached. Some say law comprises

rules established by societies through constitutions, statutes, administrative rules and

courts' decisions.

4
 "

Activity two

1. in pre-scientific era to what did the people attribute the laws that
governed the nature of things?
2. What conditioned this kind of thinking?
3. Modern writers had two kinds of thoughts about the meaning of law
which one were these?

Topic Three: Natural Law School of Thought

This school of thought came up at the time when science had not yet developed. People

began to associate all natural things to certain natural forces. They argued that there are

certain moral rules which can be discovered with natural reason of human nature. It is

stated that one can ascertain principles of natural law by reason and common sense, so

~- much that human law enacted is only truly law in so far as it conforms to those principles.

It is submitted that law contrary to natural law cannot be obligatory and people may not

be compelled to obey such a law as it is not truly law.

I. Plato

Plato is one of the main philosophers who propounded natural law. He stated that the

physical phenomena of the world are mere manifestations of superior order laid down in

ll

5
 heaven .The following are the main principles of the theory of natural law as advanced by

Plato:

a) Conception of, or belief in a set of principles of human conduct which have the "

same kind of immutable or invariant truth or rightness which is inherent in the

physical order of the universe.

b) The principles of natural law are established, or founded in divine reason, and are,
·~

therefore absolute and unquestionable.

c) Plato also argues that, if it's natural for a man to act in a certain way, then he

ought to morally act in that way. For example if it is natural for a man to marry a

woman, then he ought to marry a woman and not a fellow man.

Naturalists argue that, man's behaviour is already laid down and discoverable by reason

and common sense. The natural law school of thought also states that, propositions like

"it's wrong to kill or make others suffer" seem to be self evident, because these are things

known by man through natural instincts. For example one is expected to know naturally

that if A=B and B=C then A=C and if you don't get to this answer then you are irrational,

so you are if you say that there is nothing wrong in killing another person.

The naturalists therefore define law as principles of human conduct that are discoverable

by reason from the basic inclinations of human nature and that are absolute, immutable

and of universal applicability and validity.

6
Further the naturalists state that the real law is a system of law which is of universal

application, unchanging and everlasting. According to naturalists law is never taught or

learnt from books, but drawn from nature.

Plato also stated that that men are unequal, both in status and virtue. He emphasised that

each individual is naturally assigned to a particular role in the society by reason of his

capacity. For example decision making in the country would be in the hands of wisest.

Activity Three

Plato's thinking seems to have rested on the immutability of things. What

do you think?

According to naturalists where would one find justification for principles of

law?

Do you think that law is designed by the intelligent and the wisest . Justify
your answer?

Greek Theorists

Greek theorists who are also known as sophists form part of the natural law theorists.

These theorists in their analysis of natural faw constantly referred to an eternal law or

natural law which was absolute and could not be changed and that it was the duty of

public authorities to enforce and recognize this law in defining the relations of human

beings.

7
 I. Aristotle

One of the most notable Greek theorists is Aristotle. He emphasized that the state should

enable man to attain the good life which by. nature he is destined. The main purpose of

the law is to assist man in the attainment of his fullest potential. Aristotle also tried to

define natural justice. He said that justice was that which was equal, lawful and fair. He

emphasized that equality was not the same in all places for every one, i.e. we are equal

only in so far as we are compared to another person in the same group or status. He

controversially justified slavery by stating that a slave could only be compared to yet

· another slave.

Activity Four

1. According to Aristotle where is the basis for equality?

2. How did the thinking of Roma theorists differ from those of Plato and
Aristotle?

Roman Empire Theorists

These theorists took over Greek theorists and developed a new intellectual group called

the stoic philosophers. The approach of this group of philosophers was from the biblical

point of view. They emphasized that the main source of natural law was the bible.

"'
8
 They were trying to re-define natural law from what it had hither to been. They

emphasized that there ought to be one system of law in the world; that law being the law

of nature. They said that, there must be equality and egalitarianism. They emphasized that

all people were created equally by God and were equal and thus the law should be

applied in the equal manner to all regardless of their station in life. This group differed

with Aristotle who stated that equality could only be between the equals .

Activity Five

St. Augustine and St. Aquinas seems to have one common thread of
thought which one was it?
.;;

Topic 4: The Impact Of Christian Doctrines Medieval Era

When the Roman Empire collapsed, the church took over philosophizing. This is the

time, when the Church claimed they were the final interpreters of the truth. The fathers

of the Church tried to integrate the teachings of the Greek and Roman theorists with the

teachings of Church.

,,

I. St. Augustine

St. Augustine tried to teach that man had now become very sinful because he had

instituted ethnic authorities. Man had now established institutions like the government in

order to serve his personal interests. He also stated that man developed personal interest

in property. He said that, man had lost the sense of direction. He emphasized that man

should turn back to the commonwealth of God. Man should act consistently with di.ctates

9
of reasons i.e. doing good and avoiding evil. He emphasized that, it was the mission of

the church to save man from the sinful nature.

II. St. Thomas Aquinas

He tried to persuade people that Christianity had a rational basis. He made three

distinctions of natural law.

a) Eternal Law

He termed external law as the law known only to God, but in which man could

participate by exercising his practical reason. Man should accept that there are certain

things which he may not understand as they form part of the external law. He stated that

man should not question such things as the sun rising from the east, why calamities such

as volcanoes occur. These are beyond the comprehension of man as only God understood

them. Man can participate by merely accepting that there are certain things are only

known to God. Man should not attempt to understand these things.

b) Divine Law

By divine law he said these were directions from God on how men should conduct

themselves, and that God reviewed his law through the scriptures (bible).

c) Human law

St. Thomas Aquinas stated that human laws are laws made by secular rulers or ethnic

authorities. He emphasised that, human law could only qualify as law if it complied with

10
 external and divine law, otherwise it would be invalid and man would not be obliged to

obey and follow it.

Activity Six

Explain how the church lost its authority during reformation

Topic 5: Impact of the Reformation Period

This is the period when the church lost most of it's authority. There were two major

reasons for this and these were, the advent of science and the moral decay amongst the

. dignities of the church.

a) Advent of Science.

The development of science crune to contradict many of the teachings and

doctrines of the church. Science insisted on truth, empirical approach, rather than

speculation. It was able to give explanations to many natural phenomena for

which the church had no answers.

11
 b) Moral Decay:

The Bishops and Priests of the church began to crave for property. This is the

period when the Pope and His Cardinals began to scandalously acquire property.

The clergy broke their vow of celibacy by engaging in sexual scandals and having

babies. Because of moral decay, people lost faith in the church and its teachings.

The church could no longer claim to be the guardians of morality. People broke

away from the main church and a number of protestant churches were formed.

This period is called the period of reformation, because it is when an individual

was emancipated from the church's involvement in his affairs.

The fall of the church had another consequence, which was the loss of power and

authority by the church and eventual rise of absolute rulers, who claimed to have

unlimited powers.

Activity Seven

What is the basis of the naturalists' theory of law?

Locke and Rousseau seem to have broken from the grip of absolutism in
law. Tease out elements of their thinking which justify this statement

12
 Liberal Democracy

This is a system which emphasized that the state should have minimal interference in the

private economic affairs of an individual but that it should instead promote the protection

of life and property of the individual. It emphasized the issue of individual rights and

freedom.

Some of the main proponents of this school of thought included Locke and Rousseau.

They generally emphasised that, human beings possessed certain natural rights. They

tried to justify and rationalise the existence of the state because they were concerned at

the rise of unlimited power. This is the time when common citizens were denied things

like land rights and any form of political participation.

.,

@
I. John Locke

John Locke argued that the state should only be there to protect the security of the

individual He emphasized that the individual should be left alone to carry on his life with

the minimum possible interference from the state.

He said that the individual possessed certain rights which the state could not take away,

because they were God given. He went on to suggest that, there should be a contract

between the rulers and the citizens. The citizens should agree or accept to be ruled and in

return the rulers should guarantee that hey will protect the natural rights of the

13
 individuals. If the state breached this contract, people had a right to overt.brow ruler. This

overthrow should be done by entering into a new contract with the new rulers. This is the

principle he referred to as the social contract theory. Locke was in fact appealing to the

rulers to uphold the principles of humanity and morality. He emphasized that, rulers

should not be unjust and that natural law, should have the force of land.

He emphasized that there should be a particular document to guide the rulers and the

ruled and it is by this document that the rulers had to guarantee the protection of

individual rights. The United States of America for instance drew a lot of ideas from

John Locke in the process of making the constitution. This document may be said to be

what has culminated into what is called constitution today.

II. Jean Jacques Rousseau

The teachings of Rousseau inspired the French Revolution. He emphasised the issue of "

equality and liberty. He also said that, the rights of men should also be proclaimed in the •

constitution. The legislature was to be custodian of people's rights and freedoms. The

new French Government [after revolution] incorporated Rousseau's ideas in the

constitution. His philosophy like that of Locke greatly influenced the development of the

principle of the constitution, human Rights and Democracy by the west.

For Rousseau, natural law did not create imprescriptibly natural rights in favour of

individuals. It conferred absolute and inalienable authority to the people as a whole. For

this purpose, the people, taken together, constitute an entity known as the 'general will'
.
14
(la volonte generale) which differed from the mere sum of the individual wills of

citizens.

To Rousseau the social contract is a mystical construct by which the individual merges

into the community and becomes paity of the 'general will'. Ideally the people should

govern themselves. But as he acknowledged, it is unimaginable that the people should

remain continually assembled to devote time to public affairs. It is for this reason that the

people who enter into a social contract with the rulers.

Activity Eight

What is the main basis of the naturalists theory oflaw?

15
 UNIT2

The Positive School

Introduction

Positivism is a theory of law which is directly opposed to natural law. It is actually a

reaction to natural law teachings. Positivism arose at the time when science was .making

an impact. The new scientific age was no longer satisfied with natural law theories and

their explanation of the natural happenings. Positivists tried to define law, not by its

contents, but according to formal criteria.

Objectives: by the end of this unit you should be able to:

a. Explain the meaning and phisophicl alignemnt of the psoitive school of thought

b. Discuss the major thoughts of proponents of the school

c. Compare and contrast the positive and naturalistic school of thought

Topic One The Basis of the positive school

According to positivists, law is that which is laid down in the form of precedents, statutes

etc. Positivists admit that, issues of morality or ethics do influence law makers or judges,

but it is only incorporation of these moral and ethics into precedents and status which

gives them the quality of law. An unjust law would be law nonetheless, as long as it has

been given the stamp of validity through precedence and statutes.

16
Any proposition which· has satisfied formalities and procedures of becoming actual law is

law, irrespective of other considerations.

While the natural law school is worried of ethic and morality content of the law, the

positivists are worried about formality i.e. that the formal procedure must be satisfied in

order to have law. For the naturalist, a proposition is law not merely because it satisfies

the formal procedure but its law by virtue of having some addition moral content i.e. if it

complies with the principles ofnaturaJ law.

The positivists insist on the separation between law and morality for purposes of

certainty. They argue that we should be able to clearly know what is, or what is not law.

This is in contrast to the natural law school of thought which insist on what ought to be

law. i.e. law ought to have moral content and in compliance with the principles of natural

law. Positivists maintain that courts have no time to state the validity of law by a moral

test. The maintenance of any legal system requires political authorities to make laws,

enforce and administer them to the exclusion of what other people may believe the laws

should be. Societies need well defined laws. Positivism therefore, wants order which

flourishes best in stable social conditions in which the law 'is' and not what it 'ought' to

be.

Positivism distinguishes the question whether, a rule is a legal rule, from the question

whether it's a just rule.

17
 Actvity one

1. According to postivists what gives law its power?

2. How does the thinking above differe from naturalistic school of thought?
3. If you were looking for the following giudance in your thought w.here
would go:
i) formality of law?
ii) Ethics and morals?
iii) Order?
iv) What ought to be?

I. John Austin

John Austin insisted that the concern of Jurisprudence should be positive law and that law

should be distinguished from morality and ethics.

There are 3 major characteristics of Austin's theory which are, conception of law as a

command, the law as commands emanating from a sovereign and the concept that breach

of law should attract sanctions.

a) Law as Commands

Austin propounded that law are commands which are the expression of desire given by

superiors to inferiors. By superiors, he meant, political sovereigns or political leaders. He

18
said that in every society there exists a political sovereign who is in the habit of enjoying

obedience from the Community.

Austin further stated that for a law to be command, it must emanate from a political

sovereign. By commands, he meant that, these are expressions of power and come with

the ability to punish. If commands do not emanate from a political sovereign, then, they

cannot be law properly so called. They would otherwise be referred to as positive

morality such as rules of a private club or association. To Austin, Law is what is

imposed by a principal sovereign and directed at a subject, and must be obeyed, whether

it's bad or good in its inherent character.

Austin has been criticised for the use of the word command. The critics have said that

the use of the word command is undesirable as certain laws cannot be referred to as being

commands. For example laws which merely established institutions, laws which

encourage certain things like Commerce, Agriculture etc.

b) Sovereignty

Austin defined the sovereign as a person or a body of persons in political society, to

· whom the bulk of the population is in the habit of giving obedience. A Sovereign doesn't

obey anyone. He is limitless and indivisible. There is also continuity in sovereign. i.e.

even if the actual person holding the position dies, there sovereign remains

19
 His theory was only concerned with that part of knowledge which deals with law and his

theory endeavours to free the law from non legal elements like, ethics, morals, justice,

sociology etc. Kelsen was in fact tried to establish a theory of law which would not be
~

concerned with any extraneous elements. He insisted that the real science of law is lost if

the province of jurisprudence is mixed with these foreign elements. He went on to say

that, the theory of law should be uniform and applicable in the same manner to all, at all

times and places.

Kelsen conceived the law as a system of legal norms which are logically united. His

picture of law appears as a hierarchy of norms. He asks the question why is a particular

norin valid? A norm is valid not because of any outside factors, but because of another

norm which stands behind it. In this hierarchy the validity of each norm depends on

another. Kelsen says that, no matter what preposition of law you begin, this is traceable

back to some other initial norm. He states that, eventually all individual norms derive

their validity from the Basic or Initial Norms also known the Ground Norm.

The ground norm is the norm from which the entire legal system derives its validity. The

ground norm is an hypothesis and as such it is not tangible in any physical sense. The

grand norm is the final postulate upon which the validity of all norms in the legal order

depend. Kelsen also calls the grand norm as the Initial Hypothesis. So the validity of a

norm/law is not by the fact that it's being obeyed, but by virtue of the fact that, there is

another law imparting validity to it.

21
Kelsen goes further and asks what the legal nature of a revolution is and what the legal

implications of a revolution are. By revolution Kelsen meant a situation where there is

change of government in unexpected or illegitimate way, i.e. in away which has not been

prescribed by the law such as through a military take over or a civil uprising.

He asked; what is the status of a legal order when there has been change of government

through an illegitimate way? Kelsen propounded that the a revolution results in the

overthrow of the ground norm itself and since each norm in the legal system eventually

derive its validity from the ground norm, the overthrow of the ground norm results in the

disintegration of the entire legal regime.

Kelsen stated that the validity of the legal system or indeed the ground norm depends on

the effectiveness of the legal order itself. Kelsen observed that, the way of knowing that,

there is effectiveness of the legal order is to ensure that a certain number of persons in the

Community are willing to abide by the order.

He stated that when a ground norm ceases to deserve the minimum of support, it ceases

to be basis of the legal order and any other proposition which does obtain support will

replace it. A revolution therefore, must be successful, to replace a ground norm. If a

revolution fails the sponsors of the revolution will be dealt with in accordance with the

legal order they were trying to overthrow. It is for this reason that military officers who

participate in an attempted. but unsuccessful military take over will be prosecuted, just

like the people who participate in an unsuccessful civil disobedience.

22
 Actvity Three

1. According to Kelsen what should be excluded from the province

of jurisprudence?
2. What is a norm and what is its value in law?
3. What is grand norm?
4. How does a revloution lead to the disintergration of the legal
system?

There are three major decisions from the Commonwealth jurisprudence which illustrate

the thinking ofKelsen or in respect of which the thinking ofKelsen may be applied.

Uganda -vs- Commissioner For Prisons: Ex parte Matova (1966) E.A.L.R. 514

The brief facts of the matter are that in 1962 Obote became Uganda's Prime Minister.

But in 1966 he declared himself Executive President in a manner which was inconsistent

with the 1962 Constituency. He did this by merely overthrowing the 1962 constitution.

He pursuant to 'the 1966 constitution declared a state of emergency and promulgated

emergency regulations in respect thereof. Under the said emergency regulations Matova

was arrested and detained.

Matova through his legal counsel caused to be issued a Writ of Habeas Corpus

challenging his detention on the basis that the emergency powers of Obote and the

emergency regulations were invalid because the 1966 constitution under which they were

23
issued was itself invalid. He insisted that, the 1966 constitution had come into being in a

manner not prescribed by any law and that therefore everything done pursuant thereto

was invalid.

The question before the court was weather a constitution could be illegal or invalid.

Kelsen's theory was applied in this case, and it was held that, Obote was in effective

control, and the 1966 constitution though brought about in a manner not prescribed by

law was legal and valid, and thus Matova's detention was also legal.

Note: Kelsen emphasized that, if after a revolution, the government that assumes power

is generally accepted by the people and is in effective and absolute control, then it can be

said that the revolution was successful and the new legal regime created would for all

intents and purposes be legal.

E. K. Sallah -vs-Attorney General (Ghanaian Case)

In 1966 Nkrumah was overthrown by the military government. In 1969, the military

government handed back power to a civilian government and also handed them a

constitution. The said 1969 constitution provided that any person who occupies a

position, created or appointed an the credence of the military government would have ta

leave the position 6 months after the new civilian government came to power, unless he

had authority or letter from the new government.

24
Sallah was an employee of Ghana National Trading Company. This company and his

position were established under a statutory instrument in 1961 and from time to time, his

position was re-established. In 1967 he was appointed Department Manager and when

the civilian government can1e into power in 1969 he did not receive a letter of authority.

Using the above mentioned provision of the 1969 constitution he was automatically

dismissed. His dismissal was on the ground that his position was created on the credence

of the military regime. He contested his dismissal. Sallah could only succeed if he could

show that his position was not created by the 1966 military regime. His argument was

that his position was created in 1961 by statutory instrument and the military only

continued the status quo. The Attorney General argued on the other hand, that the 1966

coup had aniounted to a revolution and the constitution and all laws under it perished as

did the position occupied by Sallah and the company.

The new government (military) had discretion to continue or not, some of the old law, so

the law which established Sallahs position had continued after 1966. But it now derived

it's validity from a new order.

The court therefore held that the termination was lawful as Sallah continued occupancy

of the position was at the credence of the military government and needed authority from

the civilian government to be able to continue in the position.

25
Madzimhamuto -vs- Lardner-Burke

The Appellant sought an order declaring that the detention of her husband under a state of

emergency declared/proclaimed by an officer administering the government in 1965 upon

a resolution of parliament sitting under the 1965 constitution and under an extension of

this state of emergency in 1966 was invalid. She contended that, the declaration of

independence and the purported introduction of the 1965 constitution were illegal ab

initio and that nothing done by parliament or the executive under this constitution was

· legal or of any force or effect.

The Privy Council held that the position of the declared government was that of a fully de

facto government in the sense that it was in fact in effective control of the country. It

further stated that the present government having effectively usurped governmental

powers granted to the government of Rhodesia under the 1961 constitution can now

lawfully do anything which it's predecessors could lawfully have done, but until its new

constitution is firmly established and thus becomes de jure.

Ian Smith brought about a new constitution when he declared independence in 1965. The

Privy Council acknowledged that the new 1965 constitution was effective. This was

because at that moment~ there did not seem any alternative regime in control. The Smith

regime was able to maintain law and order and in fact the detention of Madzimbamuto

was part of maintaining law and order.

26
 After Smith Unilateral Declaration of Independence, the British government which was

supposed to be in control, passed an order called the Southern Rhodesia Constitution

Order-in-Council of 1965 which prescribed that any instrument made in purported

•
promulgation of powers of any institution for Southern Rhodesia which was contrary to

the 1961 constitution was void and ineffective.

The Privy Council refused to accept the Smith's regime as legal and in determining this

case, the court was prepared to uphold at least some measures the Smith regime was

doing as legal provided they did not contravene the 1961 constitution. The courts were

concerned with stability in Southern Rhodesia and at the same time it did not want to

confirm the illegal acts by Ian Smith. This may have been due to the fact the court had

allegiance to the British Government.

What this mean in terms of Kelsen theory is that the validity of the law does not

necessarily derive from an effective ground norm, b'Jt that this too, depends on what

courts are willing to accept as valid. This case shows that effectiveness may not be the

criterion for establishing that the ground norm is effective but what the courts are

prepared to accept as valid. In this case the Kelsen theory was not applied to its full

extent.

27
HI. Jeremy Bentham and the Principle of Utilitarianism

The major reason Bentham formulated the utilitarianism principle was to spearhead

reform in the English legal system. He was not happy with the system at the time. The

belief that the English system was perfect disturbed him. Bentham wanted to see an end

to the fiction of such things as the English principle of freedom of contract.

In order to correct this situation Bentham came up with the principle of utility otherwise

known as the Calculus of Pleasures and Pains. According to Bentham the purpose of law

is to insure the greatest happiness of the greatest number. He said the entire mankind

lives under the empire of pleasure and pain. The index of goodness or badness is

pleasure and pain. Everyone, whether a king or common person is governed by the need

to seek pleasure and avoid pain. He says that, the capacity of a given act to confer

pleasure or avoid pain becomes the measure of its goodness. Bentham does not accept

the tradition test of goodness/badness being based on religion or morality, rather the test

of goodness of badness should be according the calculus of pleasures and pain. The

pleasure and pain includes the sort of pleasure and pain that results to an individual from

seeing others happy or sad. Every law and legal institution should be tested by references

to the principle of utility. Law makers need to follow this principle in order to determine

whether or not, a particular piece of legislation should be passed. The law makers will

have to calculate whether the proposed legislation would increase the sum total of $

happiness i.e. whether it would produce the greatest happiness of the greatest nwnber of

28
 people. If it fails to produce the greatest happiness, than under the pre-existing state of

affairs, it should be dropped and if otherwise it should be past.

Bentham gives an example of a law aimed against gambling. He said that if the law

prescribes against gambling, the gambler would spend more time with his family and

spend more money on them. He would also no longer continue to be a bad example to

the neighborhoods and the young generation. The gambler is on the other hand at law

entitled to the freedom to gamble and enjoy the pleasure he personally gets from

gambling. However, in terms the calculus of Pleasure and Pain, his pleasure is far much

more less than the pleasure of the society ifhe does not gamble.

Bentham's Philosophy, it must be noted, helped cleaning up the English legal systems.

One of the effects of Bentham's philosophy was the reduction on the numerous

inequalities which had been propped up by the English statutes. For example, as a result

of Bentham's philosophy laws were passed and old ones changed to create better

conditions in work places.

In conclusion, Bentham's philosophy is that, we have all been placed under the

governance of two sovereign masters; pain and pleasure. It is these two things which

determined what we do or say. These two sovereign should also guide the law makers.

Bentham says that there are no such things as natural rights as all rights are given by the
"
law.

29
According to Bentham natural law and natural rights are fictions, he says all rights are

legal rights; they are a creation of legal institutions. Rights are only those which the state

declares or establishes. A lawyer only knows those rights which are recognized by the

courts of law. Rights must originate from the state. A person is not born with natural

rights; he just acquires them through declaration and establishment by the state. Bentham

concludes that, a right is that which grows out of the application of the principle of utility.
It is utility which determines which rights one has. In other words what is right is what

comes out of the application of the greatest happiness of the greatest number of people.

Critique

The first criticism is that, Bentham confuses rights with what is right.

Another criticism centres on the fact that, the greatest number of people enjoying the

greatest happiness may not be a reflection of the fact that what is being done is right and

acceptable depending on the circumstances of the case. The German Nazi regime, the

Mugabe land redistribution policy and Ugandan Amin rule may be such examples.

Further it is not always that the greatest number will enjoy the greatest happiness in

respect of every appropriate legislation. In other words Bentham's utility calculation is

not and cannot be the decisive factor in determining what ought to be done. There are

also questions of human dignity and personal pursuit which the law should consider and

protect.

30
 Activity Four

1. Apply the cases of Nkumbula vs. The Attorney General: (1979)

ZLR 267 and Feliya Kachasu vs. The Attorney General: (1967)
ZLR 145 to Bentham's Principle of 'the greatest happiness for
• the greatest number';

ii. What would be the effect of John Austin's principle of law on

international law?

iii. Can you give practical examples when the ground norm in the
sense Kelsen propounded was threatened

"

,i

31
 UNIT3

The Hart Fuller Debate: (What the law is and what is ought to be.)

Introduction:

There is a bedate on what law is and what it ought to be which differentiates positsivists

from naturalists. The pupose of this is to enable you identify the usnstsance of the two

sides of the debate.

Objectives:

By the end of this unit you should be able to:

a. discuss the essence of the divide between naturalists and posivists in their

conception of law.

b. demonstarte your own and undestanding of what the law is

This debate relates to what the law is between the positivists and the naturalists.

3.1. Hart
-.

When Hart is defending the positivists' stand on law, there is an important question

which he asks. He says if we insist that a certain law is not what is ought to be, should we

obey it? In other words, if laws are evil, are we then obliged to obey them? He goes to

ask, should we remain neutral between a law that commands an evil and morality which 'If

forbids it? In other words, what do you do when the law props up an evil? Do you ignore

32
 the law and obey morality? In trying to answer these questions, Professor Hart identifies

two dangers either way:

He says if you insist on what law ought to be, there is a danger of the laws becoming

uncertain. La-yv and authority may be dissolved in man's conceptions of what they think

the law ought to be.

On the other hand however, there is a danger that, the existing laws may take over

morality as the final test of conduct, and so escape criticism.

In other words, if we just take the law as it is, we might forget certain important moral

issues. We may become rigid. However Hart defends the positivists proposition of the

law.

" Harts' defence on the positivists' school goes on to say that even the decisions of the

courts/judges which are mechanical or automatic are law. Even if the judges do not take

into account any other issues such as ethics or morality, the decision will still stand as

law. Hart believes that even mechanical decision can be coherent and logical because the

judge does not make the decision in a vacuum.

A Germany writer who is a supporter of natural law Raddruch was concerned with a

problem posed by the existence of morality on evil laws. He said, for example that

;; positivists contributed to the horrors of the Nazi regime. He propounded. that no positive
J/1

33
ev"l.ctment or statute however clearly it was expressed and however clearly it conformed

to the formal criteria of validity of a given local system could be valid if it contravened

basic principles of morality. He said that an enactment which contravened the principles

of morality lacked the quality of law. No legal system which does not measure up to or

conform to moral standards can be effective.

3.2. Professor Fuller

He began by rephrasing the question of law and morals in terms of order and good order.

He said positivists are mainly concerned with order, but he was concerned with good

order. He said that mere order is not enough. Good order contained eternal morality. He

criticized Hart for ignoring the issue of morality.

He insisted that law must represent the human achievements. He said it cannot be a

simple fiat of powers (command of powers) or repetitive pattern discernable in the ,.

behaviour of the state officials. He maintained that there is more to law than positivists

thought.

Fuller also refuses to accept Harts assertion that evil laws can have coherence and logic.

In other words, only good laws can be logical.

Fuller says that, one of the questions we should ask is, what moral implications did the

Nazi system have on the conscientious citizens who were forced to live under it? Can we ...
...

34
 say that the Nazi legal system will still be called as such when there was general

debasement and perversion of all forms of social order?

In conclusion, Fuller says that if we are really concerned with the aspect of inner morality

we cannot call what the Nazi had a legal system.

;,

,,.
,,

35
Activity 1

What is your understanding of the 'ought' and the 'is' of the law?

...

36
 i UNIT4

Sociological School

Introduction

This school of thought developed from the social science of sociology. Sociology is

basically the science of social order and progress. It's a subject which endeavours to

discover and observe the patterns of behaviour of people in society. It tries to bring out

and review the patterns which appear to be regular or consistent in a particular society.

The subject also endeavours to assess the needs of society and also looks at the interest of

different groups in society. The major aim of the subject is to discover society's patterns

of behaviour and issues it needs.

Objectives:

At the end of this unit you should be able to:

a. explain the factors that led to the rise of the sociological school

b. discuss the different philosophical thoughts of the proponents of the

sociological school

Topic 1: Factors that Influenced the Rise of Sociological School

One of the factors which led to the rise of this school of thought is the industrial

revolution of the 1ih and 8th centuries. Apart from bring about industrial development

. and progress, the industrial revolution also brought about inequalities, e.g. it brought

37
about exploitation of workers in industries that came about. The major aim of industrial

concerns was to make a lot of profits. So people were paid poverty wages.

Other factors that led to the rise of this school included increase in poverty among the

people, increase in inequalities and individualism and rise of capitalism. The state at this

time was not involved in the private and social activities of the people.

The situation reached a stage where because of the seriousness of these inequalities, the

state became concerned. The state no longer wanted to leave everything to individuals. It

now became interested in matters of the welfare of people and these matters include

health, education, employment conditions. It was at the same time realized that the state

could not promote these welfare needs without the use of the law. It was realized that

society had the capacity to change for the better and it was able to use the law facilitate

the same.

The sociological school is saying that you are to develop a legal order which can be fitted

into a certain type of society. This school says that, the law cannot be studied outside the

social complex in which it operates. The making of the law, interpretation and application

should take into account social factors. Certain societal interests should be recognized

and given legal effect.

....

38
 The law is an instrument for serving the interest of society. The real source of law is not

the statutes or precedents as positivists say, but the activists of society itself. Law is not

immobile as positivists say, but rather dynamic and living.

The major point here is that; the law in the books is different from the law in the field.

The positivists are content with law in the books while the sociological thoughts assert

that the law in the field is the most important. There should be a sociological study before

legislation is passed. Even lawyers' function should not begin with law books and end

with court decisions. Lawyers should widen their perspective in order to be effect i.e. a

lawyer should be content with his surroundings, social, economics, political etc.

The emphasis is that one should not merely be content with what is the law; one should

assess the kind of society he is in and suggest laws which one thinks could serve society

better.

Today a lawyer must be amongst the most active participant in the process of seeking

solutions to human problems. Today's lawyer should be a technician, analyst,

institutional architect, politician and scholar. Lawyers today should be ready to be called

upon to help work out the new laws and new legal institutions that will be needed

tomorrow and protect the lives and freedom of the people.

Sociological thought admit that some laws are not effective but it's up to lawyers to study

"' such laws and suggest possible solutions.

39
In a nutshell according to the sociological school of thought laws are necessary for the

harmonious co- existence in society of people whose interests and desires will not always

be the same or coincide. The law should not merely be for peace making.

A state needs to assure people with concrete expectations and also protect individual

liberties. The modern welfare state requires that the law be used to regulate so many

complicated needs of society. The law is needed for encouraging education for promoting

agriculture, keeping industrial harmony and ensuring the fair distribution of scarce

resources.

Actvity 1

1. What three factors led to the rise of the sociological school of thought?
2. What was the main concern of industrialists during the industrial
revolution?
3. Industrial revolution brought some inequities relating to relationship
between owners of capital and workers. Name the two inequities.
4. The state could not sit iddle while some negative things were taking
place. What were the three things that the state concerned with in ·
redressing inequities?
5. State the main essence of the sociological school of thought
6. Compare and constrast the thinking behind the sociological school of
thought to those of proponents of the naturalistic and postivistic
schools

...

40
 4.2. Ihering (1818-1892)

Ihering propounded that the success of any legal process is measured by the degree to

which it achieves a proper balance between competing social and individual interests.

There is an inevitable conflict between the social interests of men and each individual's

selfish interests. Man is in a constant search for the good things in society like shelter,

food etc. While the law should be used to promote such desires, it should also strive to

provide equal apportion to everyone. Laws are the features of the state and are the only

ones means of achieving social control. There are other several instruments that may be

used to achieve social control such as family, schools and religion.

4.3. Ehrlich (1862 - 1922)

His theory concentrates on the impact of law on society. He looks at the social basis of

law. He said that the centre of gravity of legal development does not lie in the legislative,

juristic science or judicial decisions but in society itself The law is derived from social

facts. The real sources of law are activities of society itself. The sociology of law must

begin with the living law. As lawyers and judges you must understand the social

functions of legal rules. Living law is equal to activities of society itself.

"'

41
He criticizes the positivists for not recognizing the living law or the activities of society.

He said it is important to observe what really goes on in actual life. He asks the question

how far is the formal law observed? Because he believed that, many disputes which

affect individual interests are regulated by the living law and not the courts.

He concludes that, the scope of jurisprudence should be enlarged to concern itself with

the study of society and should look at problems and facts of life.

Actvity 2

1 According to lhering why should the law draw a balance among

different competiting interests?
2 What other instruments can be used to achieve social control?
3 What is a living law?
4 In what way does the living law regulate human life?
5 Whose concept is the living law?
6 Roscoe Pound (see next philosopher) differentiated interests. Identify
the interst andtheir special charcteristics

4.4. Roscoe Pound

According to Roscoe Pound, law is an instrument of social engineering, He lists the

interests of which the legal order must take into account. These are individual interests.

public interests and social interests. By individual interests, he meant those interests

which pertain to someone's personality, such as reputations, health, employment,

.
freedom to contract, freedom of belief and opinion, and domestic relations. By public

42
interests, he mea...11.t political interventions in securing of the dignity of the society and

protection of the state.

By social interests he referred to people's claims to peace and order, safety, security of

acquisition of property, social, political, economic and cultural progress. His emphasis

was on the fact that the law should strike to achieve the maximum satisfaction of human

wants. We should continuously search for new laws and new means of achieving or

promoting a better life. The law should assist other disciplines and vice- verse in

achieving these ends.

He finally concludes that, the rigid confines of jurisprudence should be broken down so

that, the law should strike an alliance with other disciplines such as sociology and

politics. The old objective oflaw of merely keeping peace should be done away with.

43
 1. How can the cerebrated case of Christine Mulundika and Others be applied to the

theories propounded under the sociological school of thought?

ii. Would your analysis be any different if applied to the later case of The Resident

Doctors Association of Zambia vs. The Attomey General?

iii. What effect if at all would the use of the law, such as the British Anti Terrorism

Act of 2005, to fight international terrorism have of the sociological school of

thought?

...

44
 UN1T5

Historical School of Thought

Introduction

This school of thought emphasized the importance of history in understanding present

legal systems. The school says that law cannot, and should not be studied iri isolation.

The law is not an abstract set of rules imposed on society, but an integral part of that

society. We may fail to understand law ifwe don't see it in its historical context.

This school looks at the extent to which the laws of the day have been fashioned by the

past. The school has a bias towards what is termed as a Test of Experience. To this

effect, it says that, a legal rule or doctrine which has survived for a long time and has met

the test of experience is the best one, until the better one is introduced. The school

further states that we should patch up or improve on the old legal rules and doctrines we

have rather than throw them away. The spirit of a legal system will be missed if the

historical context is neglected. We may not be able to understand land law without

looking at its feudal origin for example. So many of the old doctrines in today's law have

survived because no one has offered anything better. The school also goes on to say that,

even judges may be conditioned in their thoughts and actions by their historical era. Law

cannot be divorced from culture, traditions or customs. The Historical school emphasizes

on the gradual growth of a legal system. It is the past which mould our present legal

system.

45
5.1. Savigny (1779 - 1861) (The Popular Spirit).,

One of the proponents of this school of thought is Savigny His main point was that, the

law of any people is a reflection of the basic national or tribal character. It is the spirit of

the people expressed in legal form. The law is never made but found among the people.

Law is not of universal validity, but is particular to the nation that produces it. Laws

should not be made arbitrary, but should reflect common consciousness of the people and

should reflect the spirit of the nation. He says that, it's from the tradition and customs of

the people that legal rules evolve. The law should be identical with the opinions of the

people i.e. each nation or group of people should be agreeable in matters of rights and

justice.

The role of the legislature should be to discover the long established laws among the

people. He says that, you should have an emotional attachment with the long established

traditions. Laws should reflect tribal or national character of a people.

5.2 The Law in Primitive Traditional Societies

There has been a tendency from the West to dismiss systems which do not move book

Law, as not warranting any scholarly study.

The attitude has been to condemn the so called primitive rules and replace them with the

higher laws of the West. One contributing factor to this was the attitude of missionaries,

46
who condemned the African traditional systems as being satanic and therefore, needing to

be destroyed. The other contributing factor has been the vast ignorance of the African

and other 'primitive' culture. Until fairly recently the study of 'primitive' societies has

been neglected. Studies eventually have finally shown that civilization and legal systems

have flourished in Africa and other 'primitive' societies. Their civilizations have had

varying degrees of and one argument which has been given for concluding ·that, there

societies had legal systems, is their level of economic advancement. For instance, many

societies in Africa were known to be working in Iron and Bronze, Pottery, Mining,

Fashioning etc. The argument is that these civilisations/commercialisations could not

have existed without the corresponding legal systems to support their needs as a fallacy.

Even around AD 300, various empires flourished in Africa e.g. Kingdoms in Congo,

Zulu, Monomutapa etc.

The administrative apparatus servicing these kingdoms obviously needed a body of

supporting legal concepts and mechanisms. One legal writer LOWE said that the

African systems have had an orderly method of procedure before constituted tribunals to

deal with different disputes.

He further said that the societies had have also shown a remarkable test of judicial

competence and a keen enjoyment of forensic eloquence.

47
More recent studies have also been made in African system in the fields of procedure,

criminal law and land law etc

Anthropological studies among the Aborigines have shown that the law was the most

important thing among the Aborigines. The Aborigines enjoyed a good and secure

customary system. The system was later to be weakened by the presence of the whites .

Aboriginal law was discovered to be with sacred and secular elements (secret and

mystical elements). The secular law consisted of the body of rules and procedures which

. the Aborigines made themselves and expected everyone to comply with. It was also

revealed that they had their own courts and these were constituted by men who were

considered to have knowledge of both the sacred and circular laws.

Further, the research revealed the fact that, under the Aborigines' circular laws, there

were rules which covered matters of theft, adultery, marriage and so on. They also had

particular sanctions for offences. For example punishment for adultery was extremely

high and could depending on the circumstances result in death or loss of limb.
Offenders were usually accepted back in society despite the punishment. If punished on

sacred grounds, the offender had his feet smashed.

In modem attitudes/societies, however, these punishments would appear harsh. But it has

been argued that, if looked at critically in psychological terms, these punishments were

less damaging than imprisonment in modem prisons (though this is subject to debate).

But as long as the punishment were orderly, consistent and followed procedures, they

were laws.

48
 The Lozi tribe of Zambia also has its concept of reasonable man.

Activity: 5

1. In your opinion was it necessary for Zambia to maintain the

'borrowed' English system after independence?

ii. Consider the case of Hydes -vs- Hydes and the criminal offence of
.::
bigamy in light of the widely acceptable Zambian custom of men being

potentially polygamous.

49
 UNIT6

The Marxist Theories on the Law and the State

Karl Max is well known for his philosophy on the economy. Max looked at sp~cifically

the relationship between the law and economic relations.

The first thing he asserts is that law is a controlled instrument used to protect and further

the interests of the dominant class. Max is saying that all these things like law er other

disciplines which regulate relations amongst people are determined by the mode of

production. He said the mode of production that you have will condition the political,

legal and social life.

It is not the consciousness of men that determines their being, but it their being that

determines their consciousness i.e. it the type of material conditions that you are in, that

determine your thinking. Certain prevailing economic factors will determine the kind law

you are going to have. Vv'here the mode of production is that of capitalism the kind of

law that will exist is one which will favour the interests of capitalism. Specifically, he

says it will favour the interest of the dominant classes. The Marxist view of society is

basically economic.

Max says that, law is worked into a code of law which is appropriate to the needs of the

dominant class or bourgeois in the society. Economic power translates itself through the

50
 law into a power of command; the law is used to convert wealth into power. Those who

control the wealth use the wealth to control law and state. The executive of modem state

is only a committee for managing common affairs of the bourgeoisie. The state itself is

also a political organization serving the interest of the dominant class.

According to Max, the law is an instrument used for oppression. The law is shield to

existing inequalities. Toe law crops up private property and exploitation. The workers

are in subjective position because they have no equal bargaining power in the face of

. wealth capitalists.

It is for this reason that Max stated that freedom of contract was just a myth. Some people

gain advantage of workers who have no choice but to work for the capitalists because

they do not want to starve.

Because of this situation, there is a continuous class struggle/conflict This struggle is

between economic dominant class and the exploited. When this class conflict is finally

resolved, the state and the law will wither away. By resolving a class conflict he means a

time when workers will control the economic base. He calls this a socialist stage. This is.

the dictatorship of the proletariat.

He says that, at the socialist stage, classes still exist, and this stage is necessary for

transformation to the final stage of communism. At the communism stage you have a

_, class less society with communal ownership of property and no exploitation of the weak.

51
 At this stage, the law and the state wither befkuse there is no private property and no

classes and there is no need to have law and the state. When the law and the state

disappear, there will just be an administration of things.

Criticisms

Max was not able to lay down principles ensuring that. the socialist stage or the

dictatorship of the proletariat would be only a temporary state before the eventual

withering away of the state and law.

"
Max lost sight of the evils of the concentration of power in his pre-occupation with the

evil of the concentration of economic power.

The other criticism centres on the withering of the state and law. The question is when

law and the state have withered away, what would take their place? Max was not clear

about this and all he said was that there would be an administration of things. What does

administration of things mean? And is it possible to reach a situation where you will not

have any need for regulations rules and laws?

Law cannot depend on the economic base or the modes of production prevailing at one

given time, e.g. you need criminal law at whatever stage you reach. There are certain

things of human nature which cannot be done away with such as issues of jealous, lust

etc.

52
 Law has to be there, to regulate order, to set standards; it has to be there to justify the

general crave for justice; issues of fairness, equality, biasness will al ways be there. There
7·
are also issues of morality and ethics which the law will need to regulate.

Activity 6

i. To what extent if at all do you agree with the proposition by

Karl Max that it is a fallacy to state that there is equality
between the employer and the employee in the employment
relationship?

11. To what extent is the development of the legal regime of a

given society influenced by its means of production or its
economic station?

53
 UNIT7

Realist School (Legal Realism)

In general legal realism is looked at as a revolt to formalism. Sometimes this school is

considered as a radical wing of Sociological School.

7.1. Causes or Influence of the Theory

The influence for the development of this school of thought is America legal system.

American has a written constitution which is considered to be the supreme law of the

land. The Americans have always looked down upon the English system, where

Parliament is Sovereign. The Americans are happy with their system where the courts

had power to check whether statutes passed by the legislature are in line with the

constitution. The courts in the United States of America are constantly engaged in the

system of judicial review. They have gone so far as reviewing public policy and social

programs.

It is this American constitutional system which influenced the rise of realism.

The realists look to the courts as principle movements to the making of law, and they

play down the roll of the legislature. To the realists, what the judge says is law and the

legislature is only a source. Statutes only become law when they have passed through

judicial interpretation. The realists are saying that, you do not know the law until the

judge pronounces it. The rules employed by courts in deciding cases are not expression

of states command, or expressions of the common consciousness of the people.

54
 The argument is that, courts have been constantly applying rules which were not in

existence, and were therefore not knowledgeable to the parties when a controversy

occurred. Judges have had a large part in creating law. They have laid down rules and

precedents or principles. You do not know the law by merely reading what the statute

says. For example a man who is entering into contractual transaction has the vaguest

possible idea of the law governing the transaction. So, the law of which the man has no

knowledge is the same to him as if it did not exist. The function of the judge is mainly to

declare what the law is.

When there is a completely new case, the court still has to make a decision. In other

words a judge can not say that, he has never come across such a case. To the realists, a

judge has absolute authority to interpret any written or spoken law. He is truly a law

given for all intents and purposes and it is not a person who first wrote or spoke those

words (legislature) who is a law giver. It is for the courts to deduce law from the rules of

law in the text of a statute or from words of statute themselves .

Another reason why realists argue that judges are law givers is because statutes are of

general application. They employ words which are of general application. These words

will either be vague of ambiguous. It is the judge who gives the real meaning to a statute

when presented with particular sets of facts in a given case. Realists highlight or

emphasize on the creative nature of the judicial role. They advise the avoidance of a

. "strait Jackets" or a logical deduction like was advocated by the positivists. In. other

words, the judge arrives at a particular decision not only because of an analysis of legal

55
jargon, but also takes into account the social economics or political situations while the

positivists interpret the law directly

For example in one decided case it was an offence to drive in manner dangerous to the

public under the English Road Traffic Act. A situation arose where one car broke down

and was being towed by another. Someone was sitting in the car which was being towed

to steers it.

The towing rope snapped and the car being towed in ran of someone. The driver of the

car being towed was charged and convicted for driving in a manner dangerous to the car.

Clearly in this case it was the judge who made the law was just general in terms.

The realists say that, while positivism looks at the law as the expression of the will of the

state, through the legislature, realists look at the law as the expression of the will of the

state through the medium of the courts. For the realists, the sovereign is not parliament

but judges. What courts pronounce is the law, so that at any particular time when you

want to know what the law is, you must go to the courts and not legislature. Statutes in

themselves are dead, until the courts put life in them.

56 ~
 Criticisms

Statutes are recognized by courts only because they are law. They are not law through

judicial recognition. The critics also ask the question, what happens when a case has

been overruled? What was the law between the first and second decisions?

When judges are making decisions, are they discovering or creating it? The judges are

merely trying to recognize and discover what is already there.

7.2. Justice Holmes

Justice Holmes is one of the renowned realists. One of the reasons for Holmes to write

what he wrote was because of the experience he had as judge of the Supreme Court of the

United States of America.

According to Holmes, law consists of predictions of what courts will decide. The law is

based on what courts may do, rather than on abstract logical deduction of general rules.

Holmes was stressing the empirical and pragmatic aspect of law. He says that, the law is

an immense expanse of knowledge. It is not a closed intellectual's box. When deciding

cases, courts always have to take into account many factors. This is because the law has

interconnections with a vast array of other disciplines. Justice Holmes said that "The life

of law has not been logic, it has been experience." The decision that courts make are
"
governed by the felt necessities of the time; they are also governed by the prevalent moral

57
or political theories. These decisions may also be influenced by the prejudices which

judges share with their fellow men.

-i;. . ..,

He goes on to say that, the law is not just a system of reason and ethics, but a principle.

The law also needs to concern itself with the views of our friend, the bad man who does

not care for logical deduction but wants to know what the courts are likely to do in fact.

The accused is more interested in the decision of the court than in the interpretation of the

laws.

7.3. John Chipman Gray (1839-1915)

John Chipman Gray is also one of the realists. He emphasized on judicial creativity.

He said that, the judges take the place of the Austrian Sovereign, and the judicial decision

takes the place of legislation. The statute only becomes law if it is interpreted by the

courts. The principle of some innovative cases such as Donoghue -vs- Stevenson was

not law, until the judges made it so. He says that the law of a great Nation, means the

opinions of half a dozen old gentlemen. For if those half a dozen old gentlemen, form the

highest tribunal of a country then no rule or principle which they refuse to follow is law

for that country.

One of the people who motivated Chapman Gray was Chief Justice Marshall of the
.
supreme court of United States of America. This Chief Justice had shown some creative

role by lying down some of the principle trends that have characterized the United States

58
 judicial attitude. Gray says that, statute is not law per se. But only become law if the

courts interpret it. He was in fact drawing a distinction between law and sources of law

i.e. that statute is a source of law and judicial pronouncement is the actual law.

The major criticism which follows from this is that if you take Gray's assertions

critically, it would mean that, a judicial decision is law only for the part instantly in the

dispute, because there after, everything will depend on the interpretation that is put on a

later decision. There is a question of overruling. If one decision is over ruled, does it

mean that yet another law is made?

Activity: 7

,, 1. Using the popular case of Christine Mulundika and Others, and

with the theory of law as propounded by the realists, state who in
Zambia is the law giver between parliament and the judiciary?

11. The realists theory of law was inspired by the USA legal
constitutional system. Does it this mean that this theory cannot be
applied to the British system?

'Ii'

59
 UNITS

Law and Morality

8.1. Definition

It is difficult to define morality, it depends on one's outlook i.e. ideology, religious belief,

culture and traditions one has grown up in and the type of community one is living in. In

other words, different people will define morality differently. For instance, a 'born again'

Christian will define morality in accordance with divine commands while a sophists

define morality as that which is prescribed by the laws of country. Because of the

different views on morality, the question or problem is what standard of morality as does

a society need to adopt? One way of getting around this problem is to make a difference

between Ideal and Positive morality.

Ideal morality ranges from individual morality to morality of a saint while positive

morality refers to standards of morality which are supported by the prevalent body of

public opinion, i.e. the right thinking members of society. Examples of positive morality

are things like respect for the elderly, kindness to charity and to the disadvantaged.

Historically, if you look at most societies, you find that law and morality tended to be

fused. Sometimes law was fused with religious codes of conduct. For instance, the Ten

Commandments, though religious have been fused with the moral expectations of a

society. The commandment which says that "honour thy father and mother" is both

religiously and morally acceptable. "'

60
 However, if you look at contemporary society, law, morality and religion tend to be

distinguished. Today we regard them as belonging to distinct or different categories.

""' There are a few exceptions like in the Islamic world, where they tend to fuse legal, moral

and religious rules.

One of the reasons that law and morality are distinguished today is for purposes of

certainty regulation. Law and morality have to function on different plains. We do know

and appreciate that the law has borrowed heavily from morality and still tries to keep up

with the changing moral standards, but at the same time, there are certain moral rules

which can hardly be translated or transformed into legal rules. E.g. we cannot in law

compel a husband to shower his wife with affection, but we can compel him to provide

her with maintenance. Even the issue of kindness, cannot be enforced by law. You

cannot legally be compelled to show someone kindness. Also you cannot be compelled
"
by law to save a drowning person.
"

8.2 Some Specific Differences between Law and Moral

1. The law deals with external behaviour while morality concentrates and the

internal processes of intent motive and consciousness;

2. The duties that, the law speaks of are often accompanied by corresponding

rights i.e. the duty to pay money under contract is often accompanied by
'II:

the corresponding right in the other party to demand such payments but
.
moral duties are not necessarily accompanied by rights;

61
3. Violation of the law is punished or punishable by the mechanism of the ""·

state, whereas sanctions of morality often take such forms as social

intolerance and religious censure i.e. the sanctions under morality are

neither organized nor certain. The sanction of the law usually include

punishment, restraining orders, fines award of damages, etc;

4. The law is often definite in it's formulation than is morality. The law

usually proceeds from a definite law making authority, while morality

neither has a formulating nor an enforcing authority. For example we may

know what moral standards of a particular society but one cannot point at

one authority who brought about the standards or indeed the enforcing .
authority;
.

5. The legal verdict in a given situation tend toe in "black and white", while

the moral verdict may be of varying "shades of grey";

6. Morality tends to want to satisfy justice, fairness or achieve certain ideals,

but, the law does not necessarily strive for the same

1"

62
 8.3. Should the Law Enforce Norms of Morality

'if The questions that arise are; should the conduct considered immoral by society, be
~

punished by law? Should moral issues regarded as being good to the public be enacted in

to law?

Generally, it has been accepted that morality is in some way, an integral part of legal

development. Moral factors have, and still do play a leading part in the development of

legal rules.

The question "should the law enforce norms of positive morality" was ably argued in the

Devlin - Hart Debate.

,,
.., 8.4. Lord Devlin

Lord Devlin argued that there is public morality, which provides the cement of any

human society and that, the law, especially criminal law, must regard it as its' primary

function to maintain this public morality. Conduct which arouses a wide spread feeling

of reprobation, a mixture of intolerance indignation and disgust, deserves to be

suppressed by legal coercion in the interest of the integrity of the society. In other words,

Devlin is saying that, every society has to make up its mind about what moral standards

. to adopt. For example the issue of monogamy that has been adopted in the west. In

another example Devlin says that in marriage there is a moral code which condemns

63
adultery and this is justified. The institution of marriage will be gravely threatened if

individuals were permitted to do as they like over the matter.

.....
.
Lord Devlin goes on to say that, if vices are not suppressed, societies will crumble. Men

and women should create a society where there is fundamental agreement about good and

evil. Society must use the law to preserve morality.

An established morality is as necessary as good government is to the welfare of the

society. He says it is wrong to talk about private morality, and by private morality Devlin

meant, each individual deciding for himself about what is good/bad, or saying that the

law is not concerned with morality. Lord Devlin defined morality as what, every right

minded person considers to be moral. The law maker is to ascertain the moral judgments

of society by the test of a reasonable man, and not by the count of heads.
-II>

8.5. Professor Hart

Firstly, Hart condemns the notion that, the integrity of society is endangered by the law's

failure to enforce standards of public morality. He says that notion does not rest on any

sound evidence. He went on to say that, when you look at history, can it be said that,

societies which disintegrated lacked common morality? He argues that, society survived

riot on common morality as such.

64
 Professor Hart, does admit and accept that; some shared morality which dictate how

,I
every one else in the society should conduct themselves is essential. He however
...
,
questioned the idea that the majority should dictate how everyone else should live. He
"'
asked the question as to how much law enforcement can a society afford? He gave an

example that in 1961 37 of the states in America still made fornication and adultery as

penal offences, but these laws in these 37 states were found to be dead letters, because

they practically changes nothing .

In other words, Professor Hart was saying that, these issues should be left to the

individuals to decide. He further said that problems arise where there is no agreed

community opinion on certain moral issues. For instance, we still know that, questions of

abortion, euthanasia, prostitution, homo sexuality, pornography etc are being argued on

• and there is no common agreement.

..,

Hart asks the question that if there is no agreed opinion on these issues, how then can

they be enforced? Whose standard, are we to adopt? The view that, strong community

feelings or any values should be legitimized by penal enforcement can lead to the

justification of the Roman persecution of the Christi.ans, or the Christian persecution of

the Jews. The only purpose, for which power can rightfully be exercised over any

member of civilized community against his will, is to prevent harm to others not to

prevent harm to his own good.

<I

...

65
8.6. John Stuart Mill

"
John Stuart Mill continued the argument advanced by professor Hart and said that, if a ...
•
man affects only himself , he should not be a concern of society; for example

homosexuality. Mill also asks the question why should the law compel someone to wear

seat belt in his car or a helmet on his motor cycle? If someone gets drunk every night in

privacy of his home, society should not be concerned.

The counter argument to this is that, if half men got drunk every night in the privacy if

their homes, what type of society would this be? None would go to work the following

morning?

The main issue that can be identified from the Devlin debate is over the controversy as to .
what conduct is by common standards regarded as immoral or moral. Should the state of

public feeling determine what law should be brought into play through specific criminal

sanction to suppress what is generally considered immoral or bad.

In spite of this debate, Hart and Devlin were agreeable on the issue that legislature does

pay close attention to notions of morality. They agreed that, some shared morality is

essential to society. But the question is, where should the line be drawn? Should we

always allow the majority to dictate how everyone else should live?

66
 Most people who favour Hart's assertions tend to support a legal system that places a
•
high value on individual freedom, and those who are on Devlin's side appears to want a
...
. legal system where the rules of the majority frame work within which the making law

should take place.

Activity: 8

Give examples of at least 4 situations in Zambia when there has

be.en an interaction between morality and law

.,
"'

.
...

67
 UNIT9

Law and Politics

..,

There is need to differentiate between politics and the state, the state and government and
.
the law and politics.

Government concerns institutional frame work for ruling a state i.e. the structure and

procedures and organs such as the executive, legislature and judicially. The state, on the

other hand, is a hypothetical concept; it represents an imaginary person. It is the owner

of all government assets aqd property. It is the employer of all government servants. It is

a legal person capable of suing and being sued. The state is the custodian of the peace. It

is also the dispenser of welfare material to individual. The state is the living soul of a

particularly organized society and does not die when government changes. The
,;.

government is simply the servant of the state; the state gives government certain

functions to perform like making laws, enforcing them and adjudicating.

What is politics then? Generally, politics is the process of acquisition and use of power.

It concerns the behaviour of groups and individuals in matters likely to affect the business

of government e.g. in matters of voting, forming and running of political parties. Politics

is about exerting influence from those responsible for conduct of government. It is also

about influencing the way the government machinery should function in achieving

certain policy priorities.

68
 Politics is basically about power seeking and exercise of such power and this will for

., power has roots on the desires to dominate other men and subject them to one's influence
,,.;c
'
and control.
.

There has been a tendency to regard the law and politics as being enemies and occupying

apposite places. It has been realized that strictly speaking, law and politics should not be

at opposite ends.

While politics is about the acquisition of power, it is recognized that, the power, when so

acquired has to be checked. There must be limits on each individual and groups to act as

they please. In this light the law comes in as a means of protection against tyranny or

bureaucratic excesses. The law offers an opposition to the strong impulse to power. It

;; seeks to free men from arbitrary domination by other men. The institution of law thus

curbs and checks man's appetite for power. The law gives government the use of power
"
but there is a limit in that use of power in order to guarantee certain rights and freedoms

of the people.

Other ways through which appetite for power can be curbed is through the principle of

separation of powers, judicial independence, free public discussions on public interest

issues, checks and balances and the process of judicial review of administrative actions.

<It

69
9.1. How the Law is used to perpetuate interests of Political Parties

We may say that, it is unrealistic and inappropriate to maintain that, power and law

should be seen as a force by which the actions and conduct of men may be controlled. It ...
"'
must be understood that these two may not ·always be on opposite poles, for a state or

government with out power would not fulfil it's basic functions of maintaining the legal

and social order and protecting it from disrupting elements which are about to flout and

infringe it's mandates.

It is however also true that, law itself establishes, and guarantees spheres of power for

individuals, collective units, or government organizations, and by so doing act as an

agency for the smooth allocation and distribution of power in the social system.

However, power, in its pure and naked form which results from power loving impulse of

individuals or groups and wins, from its subjects submission through fear and not active .
co~operation, constitutes the polar opposite of law in its nature and developed form.
,.

9.2. Separation of Law and Politics

The principle of separation of powers, judicial independence, checks and balances, liberty

and equality, discussion on the forms of constitutions, all proceed from a political

philosophy, and in time engulf the world legal systems. The political thinking and

background of judges affect decisions in courts. When political questions come before

the courts we see the extent of interaction between the law and politics. We also see
...
questions of power for instance, in the detention of individuals.
,,

70
 Examples: There is a time when Franklin Roosevelt president of the United States of
.,
,.-4
• America caused some successive Acts of parliament to be passed by Congress aimed at
II>
relieving the economy. All these Acts were being struck down by the Supreme Court.

Roosevelt described this action thus 'the court is not acting as a judicial body but as a

policy making body.'

In Zambia the political system has been changed several times and the law and the

constitution has been the instrument of such changes. The question of the use of the

Public Order Act has also been the a question of both the law and politics.

Activity 9

<I
To what extent does the law influence politics and vice versa?

'ii

(I#

...
"

71
 UNIT 10

Law and Justice

It must be appreciated from the outset that justice and the law are two different things.
.
10.1. Concept of Justice

There have been many theories of justice, each not having absolute validity and have

been set forth by scholars and jurists in the course of the centuries. It has also been clear

that the ideas of justice in one age does not necessarily con·esponded to those of another

with different historical and cultural background. The concept of justice has been elusive

and difficult to define for a long time now. Notwithstanding this position, it is today

recognized that the ideals of justice have become semi~absolute precepts of justice.

...
PLATO saw justice as a reiationship amongst individuals depending on their social

organization. According to Plato justice would be achieved if each man receives the ...

equivalent of what he produces and allowed to do the best he can for the society

equivalent to the full privilege of what he receives. In short, if men are out of their

natural places, there would be injustice in that society.

ARISTOTLE distinguished between general and particular justice. By general justice he

meant the sum total of all virtues, and by particular justice he meant, corrective and

distributed justice. According to Aristotle corrective justice means, redressing an

,..,
equality which has been interfered with, for example by compensation, restitution and ...
"'

72
 punishment, and by distributed justice he meant an equal distribution of the social goods

f among persons e.g. money, goods and enjoyment of public amenities .

,..;

...
He emphasized that the social goods should be equally distributed to all who are within

the group of equality (Treat equals equally, and unequal unequally)

Thomas Aquinas: - According to Thomas Aquinas justice meant, justice according to

divine reason. He was saying that, a law would be unjust if it is in contradiction with

divine reason. A law would also be unjust if it did not accord with the moral values as

taught by the church .

John Locke - He sees injustice as the denial of the inborn rights e.g. the denial of a right
.;

_..,
to life, liberty and ownership of properly. According to Locke, injustice is addressable

,, by a revolution, if need be. Those who have been entrusted to administer justice may be

overthrown if they do not act in accordance with the expectations of the people.

10.2. Justice Today - A General Approach

Legal experts see the law as an instrument for achieving justice. The law is continuously

striving to achieve justice.

,$

73
10.3 How Has the Law Contributed to the Achievement of Justice?

'-
'·
1. The law defines the structure of justice agencies and systems; .

2. The law provides the substantive rules that are administered and

enforced by justice systems. In other words the law has provided for

substantive rule in criminal law, civil law, juvenile law etc;

3. The law has also provided procedural rules used during the

administration and enforcement of substantive rule;

4. The law provides mechanisms by which society holds officials

'I,
involved in the justice system accountable. For example official in the
/..

justice system are not given free a free hand entirely to do as they like; ,.

5. It has also been recognized that, legal institutions are not alone in the

quest to achieve justice. There are other social institutions such as

family, school, churches, etc. which strive to achieve justice;

In conclusion it can be said that the law has sometimes been used to achieve justice. That
II,

is the reason why there are certain out cries from the society if the decision is perceived ,.,
,.
to be unjust as opposed to just.

74
 Activity 10

""' In your understanding, are the courts in Zambia, courts of law or courts

of justice? Keep in mind that courts in Zambia have the competence to

administer not only the English law but also, principles of common

law, African customary law and principles of equity.

,I

h
, ~

'"

75
 UNIT 11

Law and Social Order

Before the development of the law, man lived in what has been termed as the state of

nature and there were no mechanism by which people could resolve their differences.

Today it has been recognized that, life would have been impossible if man was let loose

to indulge in his activities as he wished as man is naturally greedy. Without rules, there

would be anarchy and chaos and so the institution of law seeks order and regularity.

Man's strife for order is rooted in the nature of human life. The law has come in to ensure

that smooth running life and regulate people's patterns of conduct and regulate their

activities in a regular fashion. Social misconduct must be punishable. Without some

1,,

degree of regulation of men by legal institutions, life in society would be hardly tolerable.
•
Institutions like the judiciary, the police and the anny have been created to ensure social

order. The more society become complex, the more the need for social control.

ll.l Actual Mechanisms of Ensuring of Social Order

The are several means of ensuring social justice including the following:

1. Through conflict Resolution; procedure has to exist through which

conflicts can be settled. The law is used to reconcile conflicts among "

76