Idea of law: Schools of Thought
Generally speaking, this school of thought is the opposite of natural law. Legal positivism proposes that there isn’t necessarily a connection between law and morality. Instead, it holds that law comes from various sources, usually the government. If the government enacts a law, then it should be followed. Some Schools of thought have expressed divergent ideas of law.
In this article, we shall continue our examination of Ideas of law as conceived by other schools of thought and you should be able to relate any idea of law to its origin and school of thought, Identify areas of similarities and of differences and relate your knowledge of the different Ideas of Law to law in your environment in pre modern and modern times.
Also read: What is law? and its Characteristics
1. Positivist School of Thought
Positivist idea of law and legal system is that it is a closed logical system. It does not admit of anything metaphysics – anything that is not law. Its test of law is enforcement and command. It is immaterial that the law, as it is, is unjust, immoral, ethical or unethical, obeyed or violated. Emphasis is on formalism, not the contents of the law. John
Austin states that every rule of law is backed by sanction, and that sovereign is not a creation of law but is Supreme protest as, above the law and enjoying habitual obedience from the bulk of the population. He maintained that every law is a command or rather, laws and rules are species of command – be it in form of order, command, request, prayer or other. A purported command is no command unless it is accompanied with force or threat of force.
Jeremy Bentham believes that sovereignty is under the law and law is to be based on utilitarian philosophy of pleasure and avoidance of pain. Professor H. L. A. Hart states that Law is nothing but a set of rules and its function is law itself, not moral. For a legal system, he identified a union of Primary and Secondary rules. The primary rules are rules of obligation, – substantive law e.g. law governing theft, marriages, succession etc. Secondary rules, on the other hand, are ancillary or procedural.
Both have external and internal aspects. External aspects refers to the way the ordinary man sees law (normative aspect), while internal aspects is the belief in the efficacy of the law before it is enforced by officials and courts, who are part of the law and also operate it. This seems to be an introverted view of law and a marked departure from positivist idea of law. According to Hans Kelsen, Law is a norm, not a rule. A norm is an ‘ought’ proposition existing in an inverse pyramid, such that one norm derives its validity from a higher norm – parent norm – and ultimately from the first fundamental norm, the grand-norm, which turns out to be non-legal (metaphysics).
He concluded that Law is a closed legal system.
The positivist idea of law has been criticized for several reasons. Even the positivists themselves are in disarray and are not consensual on what law is. Law is far older than concepts of enforcement or sanction. It is not clear whether the positivist mean that sanction must accompany law or qualify it.
We must recognize that it is not every rule or law that has sanction attached to it. For example Wills Act 1837 is a law but it contains no penal sanction.
In Nigeria, concepts of ‘command’ and ‘sovereign’ may be strange. Sovereignty belongs to the people from whom government through the Constitution derives all its powers and authority. (See The Constitution 1999, S. 14(2)(a))
Positivist notion of Law also has no place for traditional or customary law, nor does it recognize International Law as law.
Yet, history has no record of “lawless” pre-legal state in any part of Africa. Law is a gapless system of rules governing all human interaction.
Prof. Hart belongs to the Positivist school. He has expressly denied that customary law is law and his reasons are that:
(i) Coincidence of habit of a community does not make a habit law.
(ii) The people in the community were only “being obliged” and incurred no legal sanction for disobedience.
(iii) The people were not obligated or ‘under obligation’, under pain of punishment for default.
(iv) In underdeveloped communities, primary rules exist, specifying duties and obligation and proscribing particular conduct but there are no secondary rules stipulating how and by whom primary rules are to be formulated, modified or extinguished.
Other positivists (one of them Prof. Fuller) admit that customary law is law; not just being a model of rules but an instrument of human interactions.
2. Natural Law School
Natural law is law of nature which dictates natural ordering of things, or a law higher than positive law purporting to invalidate positive law. It is law common to all mankind. It is derived from God and from reason professing the principle of natural justice, and universal acceptance.
It consists of absolute principles, immutable, transcending time, space and dynamics of social change. On the basis of philosophical ethical idea based on nature and reason, the naturalist considers law as what is just, good and equitable. It offers a standard to which man-made law (positive law) should conform.
Cicero in Du Re Publica stated that natural law could not be altered or abrogated, not even by the senate or by the people. The focus of natural law was to meet man’s divine character and his secular social needs.
Its major concern were
(i) The universal and permanent underlying basis of law
(ii) The relationship of Law and justice and
(iii) The problem of social stability
According to Plato, everything that exists is a creation of the mind, and nothing exists outside the mind. Law is a state of concrete things – an imperfect reproduction of the idea.
Aristotle added that law belongs to reason and man is by nature endowed with reason. In adapting to new needs natural law turned out to be a blend of Roman edicts of practor peregrinus, jus gentium or equity. The teachings of Christian fathers (Ambrose Augustine, St. Thomas Aquinas) as well as the sociological principle of right of self-preservation derive from natural law. It is also called Divine Law, the Law of Reason, the Unwritten Law, the Universal Law, the Eternal Law (lex aecterna) or Moral Law).
3. Natural Law, Legislation, Social Contract Etc.
The National Assembly enjoys the power to pass anything into law or do anything except to “make a man a woman and a woman man”. In the process of their legislation, lawmakers may be guided by appeals to higher order, Justice and Truth. However, the search of mankind for absolute justice is an endless one. For one thing; once a legislature has enacted a law, it is neither competent for anyone nor even the law court to challenge the Act, not being a delegated legislation or a by-law on the ground that it is unjust or contrary to natural justice.
Furthermore, Locke and Grotius, in their social contract theories, have rejected natural law, but recognized certain human rights that are inherent or inalienable and not given by man qua man.
Natural law also derive from social solidarity, and Hart’s minimum contents of law, as well as Faller’s morality are manifestations of Natural law as can be found in the 1999 Constitution. Examples are Rights to own property, Right to free speech, and other human right provisions.
In modern times also concepts of natural law are assuming new dimensions and are manifesting in such contents as due process of law, Quasi-contracts, concept of reasonableness and of natural justices, Rules of Administrative Tribunals and conflict of law.
Incidentally, attacks against as well as defenses for Roman Catholicism and Lutheranism and of the overthrow of the church as were Apartheid law and the Colour Bar in America were founded also on natural law.
4. Realist School of Thought
The pragmatic doctrine of the Realist school of thought was that the value of any assertion was to be estimated in accordance with its practical bearing upon human interests on enforcement process, system of Courts and social aids.
The Realists idea of law therefore is that law is a means of meeting desirable social ends.
The test of law then is: capability to serve desirable ends. The court was regarded as the touch stone of law. Law is the Law of the law Court, implying that the judge has a creative role.
In essence, judicial precedent is law. Its life is by experience not logic and is not to be treated “as if it contains only axioms and corollaries of a book of mathematics”.
The realist concept of law is suggestive that States or Communities without courts of law are lawless.
But we know of no record of breakdown of law and order in the early chief less societies in any part of Africa where there were neither determinate superior nor law courts. Even in many communities today in Nigeria, there are no law Courts and yet are peaceful and orderly as urban centres with wide range of Courts.
The Realist notion of law is suggestive also that the following are law:
(i) The Judges rules
(ii) Contracts and contractual obligations which Courts take cognizance of
(iii) Customary law
(iv) International law
(v) Religious or moral law, which one can predict, or which the courts will recognize even if it has not.
One of the pitfalls of the realist idea of law is that it arrogated to judges the power to make law on a legal process.
Generally, the duty and function of judges is to interpret the law so as to accord with accepted theories of social justice and social values. Judicial law making, if at all, is an exception rather than the rule.
At any event, it should be remembered that one is a judge only by reference to law.
The Realist’s approach has extended law to the field of psychology or psycho-analysis placing both litigations and legal practitioners in the centre of the legal stage (Lloyds). This flows out of the necessity of predicting judicial behaviour and analyzing the minds of those upon whom the law may operate.
It adds little to ones knowledge of law. After all, predictions may be right or wrong. Judges may be strongly ‘weighed’ by a number of factors e.g. a ‘troubled mind’, state of digestion, or social prejudices. All these make the boundaries of law more complex and its definition farther elusive; such that “Law never is, but always about to be.”
Also read: Roles and Responsibilities of Policy Stakeholders
Conclusion on Idea of law: Schools of Thought
In this article, you studied the idea of law as conceived in different schools of thought. We considered the notion of law from the perspectives of the classicists, positivists, naturalists and realist’s schools of thought.
We differentiated one thought from another. You have to think of associating with one school or several but with justification.
We have examined the idea of law in England (Positivist notion) and in America (Realist notion). The former sees law as a command. To the latter, it is a judicial prediction. Neither considered the idea of law in Africa.
