WHAT IS THE NATURE AND HISTORY OF LAW/DEFINITION OF LAW?
The question ‘what is law’ or ‘what is the nature of law’ has received various scholarships if not convoluted in answering. The historical antecedents may begin with the Greeks or the natural lawyers who viewed law as coming from God or of having an inherent moral character. Such natural law theorists include St. Thomas, Augustine, Finnis among others. Subsequently, other theorists emerged who also attempted a definition of what is law or what is the nature or character of law. Some of these theorists include but not limited to the positivists or analytical school, the realist school , the sociological school , the historical school and the Marxist theory of law. Beginning from the natural lawyers, each of these schools will be taken and briefly looked at.
NATURAL LAW SCHOOL: The natural lawyers are the opposite of the positivist. They will not deny the written character of law but they will require the law on its moral content. They require the law to the just, reason and probably to human nature and they also consider things of the common good. The principal rule is that the law must have a moral content. Thus, when the law is against reason, violation of human nature then it is not law. For them, they believe law and morality are one unlike the positivists. Thus, to the natural lawyers, the validity of law depends on its moral content. The essence of natural law according to Lloyd may be said to lie in the constant assertion that there are objective moral principles which depend upon the nature of the universe and which can be discovered by reason. Natural law is believed to be a rational foundation for moral judgment. Simply put, natural law is an aggregate of rights and obligations which flow from the characteristics of human nature. The natural law theorists are not against the state or against positive law. However to them, positive law must respect that which is natural. This will in effect alleviate arbitrary and tyrannical rule.
The natural law as already indicated supra is believed to have evolved from the Greek Period. Here they believed that the universe was composed of intelligible laws which will be prime in the governance of man. It was possible therefore to derive rational principles from the universe to govern life in the society. The natural lawyers normally attribute law to God, Reason and Justice, Human Nature and Common good. Before 5 BC, the Greek societies which was predominantly agrarian attributed everything as emanating from God. For Aristotle, he who decrees that law should rule would as well decree that God and God alone rules and he who decrees that man should rule, decrees that the beast should rule and this leads to tyranny. After 5th BC, they became more creative and thus were capable of using their intellect to design and produce Greek artefacts. This thus affected the relationship between law and religion and therefore, natural law emanating from God became law emanating from reason. This view was shared by the stoics who identified nature with reason, arguing that reason governs all parts of the universe and that humans as part of the universe and of nature are also governed by reason. To them, people will live naturally if they lived according to their reason.
Plato by his idealist philosophy , laid the foundations for much of subsequent speculation on the natural law. He developed the ‘idea’ of justice as an absolute truth in itself. According to him, law must constantly strive to approximate to the absolute idea of justice and ideal justice could only be achived or fully realized in an ideal state ruled over by ‘philosopher-kings’ capable of grasping the absolute idea of justice.
St. Thomas Aquinas : He divided law into four categories : Lex aerterna (eternal law-law which constitutes God’s rational guidance of all created things and is derived from the divine wisdom and based on a divine plan); Divine Law-Lex divina (revealed in scriptures-that part of eternal law which is manifested through the revelations in the Christian scriptures); Natural law (Discovered through human reason –describes the participation of rational creatures in the eternal law through the operation of reason); Human law –Lex humana (essence is to be just-derived form both divine law and natural law and which is or must be directed towards the attainment of the common good)
Lon Fuller : He is regarded as the leading contemporary natural law theorist. Fuller’s theory was more of procedural natural law. He believed that for there to be a good law, it must follow certain steps. Fuller authored a book ‘morality of law’. Chapter two of his book was titled the Morality that makes law possible. He believed that in law , there is some notion of morality. That law cannot be separate from morals and that there is essentially a minimum criteria for recognizable legislative that need to be followed.
He therefore outlined 8 procedures that has to be followed for there to be a good law. :
• The law must be published
• Prospective : The law should be future looking. Frowns un retroactive legislation
• Forward looking : Some laws are vague
• Clear: Not ambiguous
• Consistent: Not contradictory
• Not impossible to obey
• Understandable : comprehensive
• The law should not be changed so frequently as to make conduct unwhollly clear
THE POSITIVISTS:
Though not a united front they all share certain characteristics.
• Law is a creature or creation of human agents.
• they look at law as it is and not as it ought to be
• The laws are found in rules declared by authorities. For instance if parliament is the authority then unless parliament declares it is not law
• They believe that there is a formal criteria for determining the validity of law. An example is Article 106 of the Constitution.
• There is no necessary connection between law and morality (separation thesis). For the positivists, law is a social fact and cannot appeal to any moral argument. Though the law may have certain moral inclinations it does not mean that it derives its validity from morality. Morality and law to the positivists are not coterminous.
COMMAND THEORY OF LAW : The command theory of law may be attributed to Jeremy Bentham and John Austin. For Bentham, law is the expressed will of a sovereign. He authored the book ‘Of Laws in General’. Austin however, borrowing his ideas from Bentham is attributed with the father of analytical positivism by virtue of the fact that his is the first contemporary scholar to bring out the elements of positive law. Austin authored the book ‘the province of jurisprudence determined’. In this book, he defined law in terms of commands from a sovereign backed by sanctions. Mathematically, Austin implies that law = command +sanctions.
According to Austin, commands are expressions of a wish backed by a threat to inflict evil. The command according to Austin is issued by the sovereign who is willing or is able to act on the threat. The sovereign according to Austin can be either an individual or a group of individuals . When it is a person, then the person is likened to a king or a queen and when a group, like a monarch. Next, the sovereign must be habitually obeyed by the bulk of the people however he is not obedient to anyone else. The sanctions are the evil for breaching the command.
Austin faced several criticisms paramount among them is HLA Hart. In his ‘Concept of Laws” He argued for instance that not all laws are in the nature of commands. Certain laws merely confer rights on individuals and not in the nature of commands. More so, it is not every breach of a law that results in affliction. etc. Hart then advocated that for law to be law it must conform to what he terms the ‘rule of recognition’. It is this rule of recognition which gives formal validity to the law.
HANS KELSON: Hans Kelson is attributed to what he terms the ‘Grundnorm’. keelson is the author of the “Pure theory of law”. According to him, the law must be pure and not contaminated by any extra legal factors. He also believe in the separation thesis however from a different angle. He indicates that we should distinguish between moral norms and legal norms. The law according to him is the legal norms. and the extra legal factors are the moral norms. What will make the legal norm valid? The Grundnorm. The Grundnorm assumes a hierarchy of norms in the legal system.
According to this hierarchy, every legal norm derives its validity from a superior legal norm. See for instance Article 1(2) of the Constitution. According to keelson, whenever there is a revolution, it displaces the entire legal system and as such a new legal system is birthed. This new legal system comes with a new Grundnorm from which everything derives its validity.
The positivists have been generally criticized as making laws that are unjust, tyrannical and infringing fundamental human rights of individuals. Remember Re Akoto.
THE REALIST SCHOOL :There are two main kinds : the American Realists and the Scandinavian Realists. The Scandinavians are concerned with the verification of concepts like ‘rights’ and duties in a psychological way whereas the Americans sought to show that legal decisions were not predictable if merely based on logic or formalism. Paramount among this school are Oliver Wendell Holmes Jnr “the life blood of the law is not logic but experience”.. John Chipman Gray ; karl Llewellyn.
For the realists all laws are judge made law. Statues are not laws by virtue of their enactment. They only become law when applied by a decision of the courts. Only then does a legislative enactment spring to life and acquire actual force. Legislation is therefore no more than a source of law: it is the courts that put life into the dead words of the statues. So to them, nothing pretentious is what will be considered law than the prophesies of the courts. Because of that common position, they have decided that when a judge is considering legal questions, legal factors don’t matter. The legal factors include –legislations, Acts , Constitutions etc. Oliver Wendell Holmes is the most popular among them. He authored ‘the common law’. His position is popularly called the bad man or prediction theory of law. Thus, if one wanted to know that the laws of a society are, one must approach the question form the perspective f the bad man. The bad man does not care about morality, nevertheless, he , just like the good man wishes to avoid an encounter with the law. When he asks his lawyer whether some contemplated action is legal , what he want to know is how public power is going to affect him. The realists have been generally criticized as chastising the role legislatures play in the making of laws.
THE SOCIOLOGICAL SCHOOL: According to this school , the positivists notion of law is misconceived for law is not found in the written books but in the society. For this school, law is found in the standards of society. Put in another way, law is law when it is in conformity with prevailing relevant social facts. It is worthy to note that the social facts which must be a reflection of the law must be the ‘relevant’ social facts and not just any social facts. It has been suggested that social facts are ‘relevant’ if their context is original instead of being borrowed. This however is not suggest that social facts cannot be adapted. These social facts are also relative and not universal. For instance for a law to be valid in Ghana, it must support the social facts in Ghana. The foremost proponents of interest are Roscoe pound (social engineering) and Eugene Ehrlich ‘The Fundamental Principles of the Sociology of Law’. In this book Ehrlich propounded what he terms the living law. According to him, the living law is the real law and the real law is found in society.
THE MARXIST THEORY OF LAW: The main proponents are Karl Marx and Fredrich Engels. According to maxims. Their main aim was to discover among others the relationship between the law and the state. The Marxist approach to society is basically materialist, meaning that from the Marxist point of view, the material , that is physical, economics, and environment etc. conditions under which human live are the most important factors influencing social development. They especially emphasize the economic factor arguing that it is the economic relationship which people enter into when they are engaged in the process of producing the means of sustenance such as food , clothing and shelter. This they call the base and any other thing , -religion , law is /are superstructure.
According to Marx, the society consist of classes, those in the control of the means of production or the ruling class are the bourgeoisies who use the instrument of law to further their interest as against the ruled. They identify the evolution of the society from: primitive communalism, slavery mode, feudal system, capitalism, socialism and communism. All these arose principally due to the frictions which arise between the proletariat and the bourgeoisies. This is based on what they term the dialectical materialism which was borrowed from Hegel that to every thesis there is a contrary antithesis.
WHAT ARE THE FUNCTIONS OF LAW?
• Law maintains social order : Law operates to regulate social life. It does this by creating institutions which are responsible for defining the limits of acceptable behavior so as to prevent anarchy; through the promulgation of legal rules. Added to this is the fact that law is used to control public order through the protection of civil liberties and human rights.
• Law protects interests: The law protects the interest of the state as well as that of the individual. For instance, the state’s interest may be protected through the criminal law whereas the individual’s interest may be protected through the civil law when for instance the state compulsorily acquires the individuals land without paying compensation.
• Law protects rights of property : Each individual’s is guaranteed the right to property under Article 18 and so therefore any interference with the enjoyment of same affords protection under the law. Again, if you buy a car through legal means , you are given legal title to the car
• Law protects rights in respect of your person: The whole of Chapter 5 of the 1992 Constitution has been given to the protection of fundamental human rights of individuals. For instance when a defamatory matter is published against a person, the said person can seek redress in the court of law
• Law regulates transactions : Contract law; commercial law etc.