AN OUTLINE OF THE STUDY OF

JURISPRUDENCE

Professor C Anyangwe

Introduction
Jurisprudence, a Leviathan

Jurisprudence is a legal discipline that focuses on thought about law on

the broadest possible basis 1. It is a particular branch of general
philosophy that deals with theory about law. It seeks to offer
philosophical reflections on the general foundations of law. The assertion
that jurisprudence deals with theory about law invites two nagging
questions, ‘What is law?’ and ‘What is the nature of law?’ These central
questions have exercised the minds of legal philosophers for centuries.
They have also raised further inquiries such as the scope and the
usefulness of law in human society; and the relation of law to other social
institutions such as morality, justice, religion, technology, culture and so
on.
Hart sees the whole discipline of jurisprudence as focused on three
recurrent principal issues, namely, the relation between law and force, the
relation between law and morality, and the relation between law and
rules. However, in order to understand the relation between law, force,
morality and rules there has first of all to be answered the all-important
preliminary question, ‘What is law?’ That is an

1
RWM Dias, Jurisprudence, 4th ed. p.1.

1
intractable question. “Few questions concerning human society have been
asked with such persistence and answered by serious thinkers in so many
diverse, strange, and even paradoxical ways as the question, ‘What is
law?’ … No vast literature is dedicated to answering the questions, ‘What
is chemistry?’ or ‘What is medicine?’ as it is to the question ‘What is
law?’”2

The interest of jurisprudence in the general question about the nature of

law is informed by the uniqueness of law both as a social-political
phenomenon and as an instrument of social control, with more or less
universal characteristics that can be discerned through philosophical
analysis. The philosophical inquiry about the nature of law is sometimes
termed general jurisprudence. The inquiry assumes that law possesses
certain distinctive features peculiar to it, and that it possesses them by its
very nature as law, whenever and wherever it happens to exist.

But why would there be a philosophical interest in elucidating the

claimed universal characteristics of law? One answer is the sheer
intellectual curiosity in trying to understand law, which is one of the most
intricate aspects of human culture and a complex social phenomenon.
Another answer is the intellectual challenge to explain law as also a
normative social practice that purports to guide human behaviour and
thus providing strong justifications for certain human conduct.

2
Prof HLA Hart, The Concept of Law, Oxford, Clarendon Press, 1961, p.1. ‘What is
law?’ is of course an entirely different question from ‘What is the law?’ The latter
question is of a local concern: it depends on what is involved in the locality in which
it is raised. Here, the definition of the law is context-specific, that is, it will depend on
the perspective of each specific locality or country.

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However, morality, religion, custom, etiquette and social conventions
also guide human conduct in ways similar to law. That being the case,
part of what is involved in the philosophical inquiry into the nature of law
consists in an explanation of how law differs from these similar
normative domains (that is, other domains that describe or set standards
or rules of behaviour which should be followed), how law interacts with
them, and whether law’s intelligibility depends on them. The inquiry also
considers such overlapping issues as the concepts of equality, justice,
rights, authority, legitimacy, order, culture, peace, political behaviour and
so on.

Jurisprudence is thus a Leviathan, a discipline if enormous size. It is

sometimes also apprehended as the study of the accumulated wisdom of
great social scientists of the past and the present, from the Greeks through
the classical writers to contemporary juristic writing. The terrain of that
‘accumulated wisdom’ is a vast field: the meaning and effect on society
of rules and principles of law; the nature and functioning of law; general
theoretical questions about the nature of laws and legal systems, about the
relationship of law to justice and morality and about the social nature of
law.

That is not all. Jurisprudence also involves an inter-disciplinary study and

research. Since “we cannot learn law by learning law” law is learnt as a
part of other social sciences such as history, economics, sociology, ethics
and philosophy. Jurisprudence is thus, in the words of Llewellyn, “as big
as law – and bigger.” There are many rooms in its mansion”, says
Freeman. This fact gives jurisprudence a somewhat amorphous, if not,
parasitic character. It makes it difficult to characterize the discipline.

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In the subject of jurisprudence the boundaries between disciplines seem
to recede to vanishing point. This is because jurisprudence examines or
studies the law using the insights, ideas and techniques derived from
disciplines other than law. It was Mr. Justice Oliver Wendell Holmes who
once observed that “To be master of any branch of knowledge you must
master those which lie next to it.” 3

“In this view, the main function of the jurist is as a conduit. He ventures
forth from the law to garner what one or more neighbouring disciplines
have to offer respecting questions of a general nature that have been
thrown up in legal contexts. His role is to bring back the ideas,
techniques, and insights of that other discipline and to integrate or
assimilate them into the intellectual milieu of the law. The achievements
of many leading jurists can be interpreted in this way … The role of
conduit is not necessarily an easy nor an exclusive one: often in
performing his function the jurist has done something more and has
typically produced some additional element which can be justly claimed
as an original contribution. But the essential nature of the process is for
someone to venture forth from the intellectual milieu of the law and to
come back with spoils from elsewhere and to present them in assimilable
form.”4

The office of jurisprudence is to teach the rudiments of moral judgments

and legal reasoning, to instill a

3
Quoted in Julius Stone, Legal System and Lawyers’ Reasoning (1964), p.16.
4
WL Twining, ‘Some Jobs for Jurisprudence’, 1974 British Journal of Law and
Society 149, excerpt in MDA Freeman, Lloyd’s Introduction to Jurisprudence,
London, Sweet & Maxwell, 2001, pp. 21-24, at p.21.

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capacity for sharp and critical thought. One of its ‘jobs’ is to “supply an
epistemology of law, a theory as to the possibility of genuine knowledge
in the legal sphere.” 5 The chief task then of jurisprudence “begins and
ends with trying to find out about the nature and purpose of law in human
society.”6

The meaning of jurisprudence has been coloured by the implicit

ideological cleavages of jurists who have throughout the years dealt with
the subject-matter. Legal theorization is not the forte of Anglo-Saxon
culture with its empiricism and pragmatism. In the civil law tradition
legal education and practice take a more philosophical and rationalistic
orientation. In common law countries by contrast, legal education and
practice have traditionally not been informed by philosophical tradition
but by the pervasive concept of ‘legal authority’.

Even today legal education by and large still has a predominantly

‘practice’ slant with little distillation of a capacity for critical thought.
Judges and forensic lawyers still speak disdainfully of what they refer to
as ‘mere theory’. They have a sneaking disregard of philosophical
rationalization, considering such theorizing as somewhat irrelevant to a
‘legal practice’ focused on forensic problem-solving. Little regard is paid
to ‘law in context’ – historical context, social context, economic context,
political context, and cultural context.

5
Freeman, Lloyd’s Introduction to Jurisprudence, p. 5.
6
TO Elias, The Nature of African Customary Law, Manchester University Press,
1956, p. 37.

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 1. The province of jurisprudence
The province of jurisprudence is a wide and widening terrain. It
encompasses law and other social science disciplines. The cross-
fertilization of these disciplines has created much awareness of “the fruits
of inter-disciplinary cooperation … buttressed by a more sophisticated
methodology.”7

In short, the province of jurisprudence may now be said to be the

province that acknowledged jurisprudents have travelled. Ronald
Dworkin appropriately entitles his work on legal theory, Law’s Empire
(1986); for, in it he covers a vast number of subjects: a critique of
positivism and pragmatism, an attack on Critical Legal Studies, political
obligation, the status of unjust legal systems, civil disobedience, liberty
and morals, reverse discrimination, legal interpretation, law and
economics. Is the province of jurisprudence then without boundaries? To
ask such a question is like asking the old Scholastic question as to where
a horse’s tail begins and where it ceases.

Still, in the past three decades or so the contribution to jurisprudence by

postmodernist scholarship (postmodernism, critical legal studies, feminist
scholarship, critical race theory, and communitarianism) clearly attests to
the fact that jurisprudence has no fixed boundaries. Indeed, since World
War I there has been diversity of thinking about law, resulting in the
blossoming of new approaches to legal theory. The terrain of legal
philosophy has widened from the classical writers on jurisprudence
(natural law theories, positivist theories, sociological jurisprudence,
historical jurisprudence, economic theories of law) to new jurisprudential
horizons.
7
Freeman, Lloyd’s Introduction to Jurisprudence, p. 19.

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In the 1930s there emerged the Realists which shifted the focus of
jurisprudential discourse from analytical jurisprudence to an inquiry on
the activities of courts. In the 1980s a movement known as Critical Legal
Studies took Western liberal scholarship to task. In the same period there
emerged feminist legal theorizing, espousing the demolition of patriarchy
and the necessity of gender equality. Other movements that have since
emerged include postmodernist jurisprudence, Critical Race Theory, and
communitarian jurisprudence. There is thus a continuing intellectual
expansion of the frontiers of jurisprudence. This might yet affect the
epistemological foundation of Western culture.

2. ‘Philosophy of law’ or ‘science of law’

The subject-matter of jurisprudence is both a philosophy of law and a

science of law – ‘une philosophie du droit et une science juridique. It is
concerned with law as a system of norms, and as a form of social control
based on certain patterns of human behaviour. Legal scholars are agreed
that while jurists may ‘specialize’ in some aspects of the whole field of
jurisprudence, there is not sufficient warrant for treating these two
approaches as distinct fields of study. However, on the European
continent jurists still refer to the study of jurisprudence as the philosophy
of law: in French, ‘la philosophie du droit’; and in German,
‘rechtsphilosophie’.

‘Philosophy’ was once the fashionable terminology, when even the study
of natural sciences was known as ‘natural philosophy’. By the nineteenth

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century, however, many questions that exercised the minds of many
thinkers were being answered using the ‘scientific methods’ of the ‘pure
sciences’. Because of the successes they achieved these methods enjoyed
prestige and exerted a lot of influence on other fields of study.

Many studies quickly sought shelter under the comforting umbrella of

science. They claimed scientific status in the hope of sharing in the
prestige of the scientific methods. They thus boasted of an ability also to
produce an empirical knowledge by similar procedures to those accepted
as the conventional methods of the natural sciences.

Thus, thinkers like John Stuart Mill, Auguste Comte and Emile Zola
believed society, like the physical world of science, was also governed by
scientific laws. Mill spoke of the laws of causation governing man in
society; and Comte of the laws of social evolution. Zola spoke of
studying men as simple elements, as if they were specimens in a
biological laboratory. Some jurists too, later known as legal positivists,
became persuaded that legal theory or the study of law could and should
be developed on scientific lines.

‘Science’ and ‘philosophy’ are of course two different things. Bertrand

Russell once remarked that science is what we know, and philosophy
what we do not know. Science is concerned with empirically observable
facts and events; philosophy is concerned with certain ultimate questions
of structure. Some jurists study law in its normative aspects. They seek to
identify and analyze the conceptual structure of all legal systems. These
are legal philosophers.

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Other jurists concern themselves with ‘general jurisprudence’, identifying
and comparing common elements in different legal systems as a matter of
fact rather than of logical necessity. These are legal scientists. John
Austin was thus able to speak of ‘the science of jurisprudence’, and
Kelsen of ‘a pure science of law’. Today the law faculties of most French
Universities have switched over from the appellation ‘faculté de droit’ to
that of ‘faculté des sciences juridiques’; and economics and politics are
both apprehended and studied as sciences - ‘science économique’ and
‘science politique’.

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 Part I

THE CONCEPT AND NATURE OF LAW

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11
12
 Chapter One

The Concept of Law

Section 1 Law as a normative system
Law is a system of norms in that it sets or describes standards and rules of
human behaviour which should be followed. It thus consists of rules and
standards. Everybody is bound by some rules of some sort. If the rules are
those which must be obeyed and if disobedience to them is regarded as a
serious matter entailing sanctions, then the rules in question constitute
laws. Law then is a set of rules, telling us what we must or may do, or
what we are forbidden to do.

That notwithstanding, law is not definable and yet must be defined. It

must be defined because ideally law is rational and capable of definition.
In Hart’s Concept of Law (1961), no definition of law is posited. Instead,
Hart proposes a description of a working model of a standard legal
system. He puts forward The Concept of Law as ‘an essay in descriptive
sociology.’

In that book, Hart analyzes law as a system of rules. Rules are statements
of accepted standard of behaviour. Hart’s system of rules is made up of
primary and secondary rules. Primary rules, he says, are those which
impose duties (‘obligation-imposing’ rules) while secondary rules (‘rule
of recognition’, ‘rules of change’ and ‘rules of adjudication’) are those
which confer power. He contends that a community without a legislature,
without courts or without officials of any kind, is one in which only
primary rules exist; in fact a ‘primitive’ society. The group is living in
what he calls a ‘pre-legal’ state.

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Primary rules would of course enable the pre-legal society to maintain
social order by restricting violence, protecting property and so on.
However, primary rules will not constitute a system of rules, but at best
only constitute a number of norms competing with other norms such as
social conventions and religious norms since there is no procedure for the
conclusive identification of a primary rule as a rule of law distinguishable
from other norms. The existence of legal rules is thus rendered uncertain.
Moreover, the primary rules themselves remain static with change
occurring only through a slow evolutionary process by means of
customary practice. Besides, in a society which operates only upon
primary rules, conformity to those rules would only be ensured by diffuse
social pressure or arbitrary punishments meted out by individuals or the
group as a whole. There would be no procedure for determining cases of
violation of the rules and for systematically enforcing the rules by the
imposition of sanction on violators.

For Hart, the evolution of a society from the pre-legal level of

development to a legal order is marked by the appearance of ‘secondary
rules’. When the primary rules are supplemented with the secondary
rules a transition from the pre-legal to the legal state occurs. The rules
thus combined take on a legal quality and become part of a legal system.
Hart thus posits that “law may most illuminatingly be characterized as a
union of primary rules of obligation with … secondary rules” as they
specify the ways in which the primary rules “may be conclusively
ascertained, introduced, eliminated, varied, and the fact of their violation
conclusively determined.”8

8
The Concept of Law, Clarendon Press, Oxford, 1961, p. 91.

14
He lists three types of secondary rules which remedy the defects of a
society built upon primary rules alone: ‘a rule of recognition’, ‘rules of
change’, and ‘rules of adjudication’.

“The rule of recognition remedies the defect of uncertainty, that is it

acquaints the officials of the system with the criteria which determine
whether or not a rule belongs to that system and should therefore be
applied by them, for example, a primary rule may be accepted as a rule of
the group if it has been enacted by parliament, declared by a judge,
contained in the Constitution or is supported by long customary use …
When people say that a law is a law because it was enacted by
parliament, they reveal that they judge a rule as ‘valid’ by means of the
rule of recognition peculiar to their legal system. They reveal that they
assess that rule from an internal; point of view. The rule of recognition,
therefore, by stating the criteria by which a rule is accorded legal validity,
determines which social rules will be recognized as legal rules within a
particular society … The rules of change … remedy the static nature of a
system based on primary rules by … making change possible. Secondary
rules of this sort include those rules which govern legislative bodies and
specify which officers have the power to amend the law and what
procedure they must follow when they do so. Rules of change apply both
to the general law and to those rules which confer legal power upon
individuals to alter their legal status, for example, when they make a will
or enter into a contract … The rules of adjudication … give certain
officials the authority to determine whether, in a particular case, a
primary rule has been broken and if so, what procedure should be
followed. Therefore the jurisdiction of the courts will fall into this group,
as would the qualification required of judges. These rules, in a word,
remedy the inefficiency which characterizes a regime of primary rules,

15
and discourage the citizen from taking the law into their own hands by
providing them with officials (like judges) who administer the system of
penalties for those who violate the rules. The rules of adjudication are the
source of sanctions in such a system. It is this combination of primary
rules and secondary rules (of recognition, change, and sanction) which lie
at the core of a legal system.”9

Hart’s concept of law is thus that of ‘a system of rules’. For him, the idea
of ‘a rule’ is critical to elucidate even the most elementary forms of law.
Wherever there is an obligation there is a rule, but it is not the case
that where there is a rule there is an obligation. The concept of obligation
may be compared to the notion of being obliged to perform an action. The
person obliged to perform an action is often inspired to do so by certain
negative or positive beliefs and motives. When a person hands over his
purse to a highway robber who threatens, ‘your purse or your life’, the
handing over of the purse is inspired by the belief that unpleasant
consequences would follow if the purse is not handed over.

In Hart’s view this belief is sufficient for and is also necessary for the
statement that a person is obliged: the belief is necessary because if he
did not believe that unpleasant consequences would follow we would not
say that he was obliged to hand over the money. Yet, mere belief is not
sufficient for the statement that a person has an obligation, for in spite of
V’s belief that unpleasant consequences would ensue if he does not hand
over the money, we would be incorrectly describing the situation if we
said that he had an obligation to hand over the money. He had no such
obligation (whether morally or in law). It follows that belief is not
9
Adrienne van Blerk, Jurisprudence – An Introduction, Butterworths, Durban, 1998,
pp. 41-42.

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necessary for the statement that a person has an obligation because a
person can have an obligation, say to tell the truth even though he
believes that he will never be found out (if he told a lie). Hart concludes
that only the concept of a rule effectively explains the notion of an
obligation. He explains this by distinguishing between social habits and
social rules, a matter that would be considered later in these pages.

Dworkin, Taking Rights Seriously (1977), disagrees with Hart that law is
a system of rules. He argues that when lawyers reason or dispute about
legal rights and obligations they make use of standards that do not
function as rules, but operate differently as principles, policies and other
sorts of standards. Rules, he submits, are applicable in an all-or-nothing
fashion and are either valid or invalid. Principles, policies and other sorts
of standards have a dimension of weight or importance; a quality which
rules do not possess. Principles only incline a decision one way or
another (though not conclusively) and survive intact when they do not
apply. They do not originate in a particular decision of some legislature
or court, but in a sense of appropriateness developed in the profession and
the public over time. They therefore express the deep-rooted and
historical values of the legal system and the political morality of the
community. Because they are a part of the law, they justify the deviation
or changing of a rule by a judge. Sometimes, however, a legal provision
may function logically as a rule and substantially as a principle.

In Dworkin’s view, Hart’s rule of recognition and his positivist

account conflicts with the basic democratic tenet that judges do not make
laws, but apply them. Dworkin concedes that rules are part of the law and
that clear-cut cases are decided in terms of those rule, but he denies that
judges have discretion to decide hard cases. His reason for denying

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judges discretion in hard cases is that law does not only consist of rules
(as Hart would have it) but also comprises principles and standards; these,
Dworkin argues, forming just as large a part of the law as rules. Dworkin
insists that any analysis of the law in terms of rules alone overlooks the
full range of legal materials which a judge uses in deciding a ‘hard
case’10.

A. Habits and Customs

A rule is any norm of behaviour. A habit on the other hand is a pattern of

behaviour or conduct followed without any feeling of compulsion to do
so. A group might meet every Saturday evening at a club house for
recreation. This would be considered a social habit, rather than a rule.
For, people who do not go for recreation are not criticized for their
behaviour. Moreover, while an outsider might notice the group’s habit,
members of the group might be unconscious of their own habit or that of
others. In fact members of the group do not feel any compulsion to
maintain the habit of going for recreation every Saturday evening. Habits
thus have an external aspect only.

It is said that all creatures are creatures of habit. The habitual

behaviour of early man was probably no more than reflex or instinctive
reaction. When man moved from a solitary to a social being, living in
community with other men, there came into existence social customs to
10
Ibid., pp. 86-87.

18
which man then became a prisoner. Some habits can be attributed to a
social group on the basis of the observable behaviour of the majority of
that group. These are institutional habits. However, an individual living
alone in complete isolation from other human beings (a hermit) requires
nothing more than personal habits. Individual families also require
nothing more than family habits, although some families do in fact have
rules.

Habits begin to crystallize into social customs, into legal customs and
then into rules when people begin to live together in a community. Even
today, society is replete with many powerful social customs as was the
case in ancient society, albeit more rationalized and less superstitious
than once they were. Bacon once observed that “men’s thoughts are much
according to their inclinations; their discourse and speeches according to
their learning and infused opinions; but their deeds are after as they have
been accustomed.”11

Custom is conduct. It has an internal and an external aspect; the internal

in mind and emotions, the external in conduct. Will and desire, in some
degree, underlie the conduct of all rational creatures. It follows that some
reason or degree of will underlies the conduct of any intelligent human or
group of humans.

Customs are thus patterns of behaviour which all societies tend to evolve,
by conduct or habit, without express formulation or conscious act of
creation. They are ancient usages and observances, sometimes rooted in
divine belief, so generally accepted and practised by the people that they

11
Qouted in CK Allen, Law in the Making, Clarendon Press, Oxford, 1964, p. 67.

19
have formed a body of standardised patterns of behaviour and acquired
the force of law. They are based on actual uniformity and unanimity of
practice by a people, prompted by a reasonable social necessity, and
informed, so it seems, by their common consent and corporate act of will
– what in international law is known as opinio necessitatis.

The sanctity of custom derives from immemorial practice or usage

deemed to be based on a fundamental reasonableness. Its validity cannot
be measured by the element of sanction imposed by courts or by any
other determinate authority. It is the characteristic feature of most
customs that they are non-litigious in origin. They arise from the practices
prompted by the convenience of society and of the individual. Their
starting-point would appear to be convention rather than conflict, just as
the starting-point of all society appears to have been co-operation rather
than dissension. In his Historical Jurisprudence, Vinogradoff observes
that:

“It is not conflicts that initiate rules of legal observance, but the practices
of every day directed by the give-and-take considerations of reasonable
intercourse and social co-operation. Neither succession, nor property, nor
possession, nor contract started from direct legislation or from direct
conflict. Succession has its roots in the necessary arrangements of the
household on the death of its manager, property began with occupation,
possession is reducible to de facto detention, the origins of contract go
back to the customs of barter. Disputes as to rights in primitive society
are pre-eminently disputes as to the application of non-litigious
customs.”12

12
Ibid., p. 71.

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Some customs are social customs, others are legal customs. Social
customs are similar in some respects to social habits in that in both cases
the behaviour might be general and if broken, would draw criticism upon
the offender. Take for example the generalized and instinctive practice of
knocking at the door of a house before getting in on being invited to do
so. This is a social custom or rule of etiquette. It would draw at least
some degree of reproach if a person were rudely to enter into a house
without knocking at the door and waiting to be invited in. This does not
mean that social customs and social habits mean the same thing.

Where social customs exist requiring certain behaviour, any deviation

from the required behaviour will attract deserved criticism. Both the
person criticizing and the person being criticized consider the criticism as
deserved, an indication of the awareness of and support for the social rule
by both persons. Hart terms this awareness and support the ‘internal
aspect’ of a rule. But a rule also possesses an external aspect in that an
outsider would also notice a social rule as he would a social habit.

Whereas a social habit has on external aspect only, a social custom or rule
has both an internal and an external aspect. The external aspect limits
itself to the observable regularities of behaviour and cannot reproduce the
way in which the rules function as rules in the lives of the majority in
society (officials, lawyers, or private persons who daily use then in one
situation after another in all the familiar transactions of life according to
rules). The internal aspect signifies that in the lives of the majority of the
people in society the violation of a rule is not merely a basis for the
prediction that a hostile reaction will follow but a reason for hostility.
This internal aspect of social customs or rules is characterized by a

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normative language of its own, the typical words of which are ‘ought’,
‘must’, and ‘should’.

Two kinds of social customs or rules may be distinguished, social

conventions and obligation-imposing rules. Both involve various kinds of
social compulsion. Social conventions include rules of etiquette,
decorum, courtesy, honour, morality, sports, grammatical speech, and
religious precepts. Social conventions are not legal rules. But they are not
merely habits either. The group strives to have its social conventions
observed and would disapprove of those who fail to do so. Like legal
rules, social conventions also impose a certain line of outward conduct on
individuals in the interest of order necessary for good and proper human
relations. The normative language of ‘ought’, ‘should’ and ‘must’ is
normally employed in this context (e.g., ‘you ought to …’, ‘you should
...’). But the phraseology of any such rule is never in the sense of an
obligation to do something. As a matter of courtesy I ought to open the
car door for the lady; but I do not have an obligation to do so.

The obligation-imposing type of social rules are those which arise when
the general demand for conformity is insistent and the social pressure
brought to bear upon those who deviate or threaten to deviate is great.
The type of social pressure here is of a much more severe nature than
when a social convention is broken. The demand for conformity is
believed to be necessary for the maintenance of social life or some highly
prized feature of it. That is why those rules are of the obligation-imposing
type. That obligation notwithstanding, social rules are not justiciable. The
only sanction against their transgression is reproof or at the worst
exclusion from the circle where the rule is observed.

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In varying degrees then social customs (whether conventions or
obligation-imposing rules) all possess a sanction; for, to disregard them
involves some kind of penalty. Society does not take lightly the breach of
any of its conventions; at least social reprobation will follow any such
breach, which punishment is not necessarily ineffectual as one might be
inclined to suppose. Yet these customs are not completely obligatory and
their sanction though powerful in many cases is imperfect.

Customs that have acquired the force of law are legal customs and
constitute customary law which is observed in its own right as a body of
legal rules. It is sometimes said that such customs are unwritten rules of
law, ‘an oral or spoken law’ – the Roman lex non scripta or the French
‘l’oralité juridique’. This is not necessarily the case. Customs reduced
into writing do not cease to be customs simply because they are stated in
a document. The sanction of legal custom is more certain in its operation
than in the case of social custom. If a legal custom is not followed certain
desired legal consequences will not be brought about. If A does not pay
the required customary marriage consideration his ‘marriage’ to B is
ineffectual. The effect of the sanction is thus usually negative rather than
positive.

Legal customs are rules of law inasmuch as they are binding and
obligatory rules of conduct, and that the breach of them is a breach of
positive duty. The sanction of legal custom is more certain in its
operation than in the case of social custom. If a legal custom is not
followed certain desired legal consequences will not be brought about.

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An analytical positivist such as Austin denies legal customs the force of
law until they have been expressly recognized by the sovereign, that is to
say, until articulated by a system of law-making and law-dispensing. In
Austin’s view, without the imprimatur of supreme authority, custom
cannot be conceived as a command. Austin conceded that customs are
laws of conduct, but argued that they are set by men not political
superiors. He then characterized custom as ‘positive morality’; a
morality, he pointed out, which is not the same thing as the morality
which may signify the law set by God.

B. Rules of Law

One of the most difficult problems with which jurisprudence has to deal
is that of evolving a valid description of law. There always has been
much disagreement among jurists, sociologists and anthropologists as to
the meaning of law. Even among jurists themselves there is hardly
unanimity.

One may start with the various definitions of law offered by analytical
positivists. Analytical positivists are jurisprudents who concentrate on the
detailed but careful analysis of legal concepts with a view to determining
their logical nexus and function in a system of law. For them all ethical
considerations must be excluded from any legal analysis. Morals have
nothing to do with law. It is no business of the lawyer to concern himself
with the end or purpose of the law because that is peculiarly a function of
the law-maker. It is also not the business of lawyers to concern
themselves with the past or the future of law. Whither the law comes or
whither it tends or whither the enlightened effort of good reason may

24
make it tend, is not the concern of the lawyer. The one and only task with
which the jurist need concern himself is an analysis of what the law is,
here and now not tomorrow.

Over a century ago John Austin, the reputed exponent and leader of the
analytical theory of law, wrote Lectures on Jurisprudence or The
Philosophy of Positive Law (1885) in which he defined law as “a rule laid
down for the guidance of an intelligent being by an intelligent being
having power over him.” This definition is often referred to as ‘the
command theory of law’. It is so referred because it implies the existence
of a political sovereign whom people in an organized political society are
in the habit of obeying, on pain of punishment.

This very restricted view of the law came in for a good deal of criticism.
Other analytical positivists like J. Salmond (Jurisprudence (1946)) and J.
C. Gray (The Nature and Sources of Law (1921)) proffered a definition of
law that shifted emphasis from enactment of the law to its enforcement by
the courts: law is the body of principles or rules which the courts apply in
administering justice or which they lay down for the determination of
legal rights and duties.

Roscoe Pound, generally considered a sociological jurist, saw

jurisprudence as the science of ‘social engineering’. He defines law as
“social control through the systematic application of the forces of
politically organized society.” His famous simile of ‘social engineering’
indicates that he is a pragmatist who does not believe in any illusory ideas
about an ultimate summum bonum in law. T.O. Elias, The Nature of
African Customary Law (1956), offers the following definition: “The law
of a given community is the body of rules which are recognized as

25
obligatory by its members.” He considered his definition as valid for any
society irrespective of its level of development, and as an improvement
on Goodhart’s definition of law as “any rule of human conduct which is
recognized as being obligatory.” For Lon Fuller, law is “the enterprise of
subjecting human conduct to the governance of rules.”

Bearing in mind these various positivist definitions of law it can be said

that law or a legal rule 13 is any rule of human conduct which is
recognized by members of any given society as being obligatory and
which therefore society can force us to obey by external compulsion.

An essential quality of law14 is its generality, abstractness and impersonal

nature. Law is general in the sense that it is addressed not to specific
individuals but to the community as a whole or a part of it and it enjoins
not single actions but types and species of actions. Legal rules exist in a
time-continuum.

Since the law is abstract it is impersonal. This quality of the law is a

guarantee against arbitrariness. It removes the otherwise possible fear that
the law has been made against or in favour of a particular individual.

13
Legal rules or norms do not exist in isolation. Each set or body of legal rules
dealing with a given series of social relations on the same subject constitute what is
known as a legal institution. For example all the series of legal rules concerning the
union of man and woman constitute the legal institution of marriage. Taken together,
legal rules and legal institutions form what is known as the legal order of a state. A
legal rule is therefore a particular normative provision of a legal institution. It is law.
It is a rule of human conduct imposed by the state upon its members under pain of
sanction. See, J Carbonnier, Droit Civil 1, Thémis, Paris, 1969, chapter 1.
14
Carbonnier, op. cit.; Dias, op. cit., chapters 2 and 3; JD Finch, Introduction to Legal
Theory, Sweet & Maxwell, London, 1979, chapter 6.

26
Indeed, one reason why people willingly submit to law is the impersonal
character of the law; the fact that it applies generally to everyone, high or
low, rich or poor, big or small, powerful or weak.

Another characteristic of law is its appeal to force. Force, it has been said,
is of the essence of any law. Any law passed is meant to be enforced and
must be enforced otherwise it will lose its effectiveness. All laws
implicitly appeal to the use of force.

There are various ways in which obedience to the law15 can be exacted:
by the threat of a prescribed penalty against violators, by the nullification
of any legal act performed in breach or disregard of the law, by seizing
and selling the property of the judgment debtor and handing the money
over to the judgment creditor. Law, it has been said, typically has two
modes of operation, directive and coercive; promise and threat.

It would therefore appear that law compels obedience because of the

threat of sanctions. However, this is not the only reason why people obey
laws. Other reasons include indolence, deference, sympathy, fear and
reason.

Most people willingly and loyally accept laws made for them because
they are themselves too lazy or indolent to question either the rulers or
the rules. Other people obey laws because of deference either to the
personal authority of the law-giver, or to the impersonal authority of
tradition. Yet another reason for compliance with law is that people feel

15
Elias, op. cit. chapter 5; J Raz, The Authority of Law, Clarendon Press, Oxford,
1983, chapters 3 and 4; D Lloyd, The Idea of Law, Penguin, London, 1973, chapter
11.

27
sympathy for one another, the ruler for the ruled and vice versa, in the
delicate task of social adjustments rendered necessary by the facts of a
common political life.

But fear is also an important element of the habit of obedience to law.

Somehow people obey the law from fear of punishment whether by
human authority or by divine intervention (condign punishment). For the
most part people probably obey the law because they consider it the right
and reasonable thing to do for order peace and good government in
society. Finally there are other people who obey the law because the
raison d’ être of the particular rules appears to make sense to them. For
this group of people the reasonableness, justness and legitimacy of the
law are critical factors.

Legal rules that are illegitimate or unjust or that are not reasonable or
plausible tend generally to be evaded or disregarded until they fall into
desuetude or are changed. If they cannot be evaded flagrant breaches
occur, entailing the meting out of sanctions.

Section 2 Legal Concepts and Legal Fictions

A. Legal Concepts

A concept is a class of things into which the facts of a case can be fitted.
Concepts exist as ideas in the human mind rather than as concrete
entities. However, there is a strong tendency to ‘objectify’ everything
which is capable of being the subject of human thought and language. In

28
other words there is always the temptation to treat abstractions as real
entities. This temptation is particularly strong in the field of legal and
political concepts where such concepts are highly charged with various
emotional overtones.

Sometimes in legal usage the word ‘category’ is used instead of

‘concept’. Some concepts are ingredients of rules and principles such as
the concepts of intention and good faith. Others such as ownership are of
wider scope and are used in a broad generic way to embrace a number of
rules, principles and standards. Often, conceptual questions are questions
about meaning and classification16.

The law classifies and regulates types of transactions which occur in real
life. It translates everyday occurrences into legal norms. Take the
example of a man who makes a promise or gives an undertaking to
another with the intention that this should be fulfilled. The law steps in. It
gives the promise a precise formulation, treats it as effectual, and adds to
the promise the element of legal validity. This complex of concepts and
rules constitute the law of contract.

Consider another example. A person inflicts physical or financial injury

on another. The act may be a crude and direct act such as a physical
assault. It may be an indirect or refined form of causing harm, such as
failing to keep property in a proper and safe condition, or depriving
another of his property by the use of fraud or by wrongfully disposing of
it. Once more the law steps in. It defines and determines the rules into
which these classes of activities may be fitted and controlled. It evolves a
complex of concepts and rules that together constitute the law of torts.
16
See, Dias, op. cit.; Farrah, op. cit.; Finch, op. cit.; Lloyd, op. cit.

29
Many fundamental legal concepts are, to a large extent, legal creations in
their own right, with a vitality of their own. Examples of leading legal
concepts are concepts such as ‘rights and duties’, ‘property and
ownership’, ‘human personality and group personality’, ‘the trust’,
‘patent right’, ‘copyright’, ‘trade mark’, ‘justice’, and ‘principle’.

A ‘right’ is an interest recognized and protected by the law, respect for

which is a duty and disregard for which is wrong. There are many things
which other people are bound to do for me or are forbidden to do to me.
My employer is bound to pay me. No one may kill or otherwise hurt me,
nor steal or otherwise encroach on my property. I thus have a right to my
salary, a right to my life and bodily integrity, a right to my property.
Sometimes my rights allow me to do certain things or to do things to
others. For example, I have a right to marry and found a family. I have a
right to vote. I have a right to dismiss my worker for gross misconduct.

The general classification of rights is into right in personam (a right

which imposes an obligation on a definite person) and right in rem (one
which imposes an obligation on persons generally, i.e. either on all the
world or on all the world except certain determinate persons); primary
right (one which can be created without reference to rights already
existing) and secondary right (one that can only arise for the purpose of
protecting or enforcing primary rights); legal right (which exists where a
person has the legal title and a remedy at law to enforce a right on his
own benefit) and equitable right (which is one enforceable only in
equity).

30
The opposite of ‘right’ is ‘obligation’ or ‘duty’. According to law
dictionary, an obligation is a duty: the bond of legal necessity which
binds together two or more individuals. It is limited to legal duties arising
out of a special personal relationship existing between them, whether by
reason of a contract or a tort, or otherwise. As a term of art the concept of
obligation or duty serves to define the interests that are protected by law.

Ownership is that totality of the powers of use and disposal allowed by

law. The owner of a thing has an aggregate of the right of enjoyment, the
right of destruction, and the rights of disposition, subject to the rights of
others and such limitations as are by law imposed in the interest of such
social control as town and country planning, and land use. Ownership of
land grew out of possession. With the growth of industrial and capitalistic
economy the right of possession changed into the right of ownership.

Possession in law is based on possession in fact and involves the corpus

possessionis (control over the thing itself) and the animus possedendi (the
intention to exercise exclusive possession of the thing itself). Possession
is said to be ‘nine points of the law’ because actual possession is at least
provisional evidence of ownership; the law protects possession by various
procedural rules; and adverse (wrongful) possession of land for a legally
stipulated limitation period may mature into lawful ownership. The term
‘property’ may mean the thing or things capable of ownership (i.e.
corporeal and incorporeal things), or it may mean ownership (e.g. I have
property in my watch; the property in the goods bought passed from the
seller to the buyer by delivery on the sale.

Natural and artificial persons are both subjects of law. Each is a legal
person and has a legal personality. The term ‘person’ is therefore not

31
confined to human beings but includes certain artificial entities which are
given a fictitious legal personality by the law. Legal personality means
the capacity to be a bearer of rights and duties under the law. The
difference between natural and juristic persons becomes clear when, apart
from natural persons, one considers the existence of corporate entities and
certain public offices. When the natural person dies he or she has no
further existence and can no longer be the subject of rights, although
certain rights and liabilities survive his or her death. In the case of a
juristic person the entity has a legal personality of its own independent of
that of the members forming it, so that although its members die the
entity never dies; it is (theoretically) immortal.

One of the objects of giving legal personality to the corporation is that it

facilitates the enforcement of rights and liabilities. For example, it is far
easier to sue X Company Ltd, than to sue all the persons who collectively
form X Company Ltd. Likewise when X Company Ltd wishes to sue. The
concept of personality is important because the lawyer needs to have
decisions upon the moment when a human being can be said to come into
existence, the means of establishing the individual in the course of his
life, and the fixing of the moment of death. Far more complex is the
attribution of corporate personality to groups such as the commercial
company with limited liability, that is, a personality distinct from that of
the company’s shareholders.

The trust in England was inspired, in the Middle Ages, by the desire of
Equity to give legal protection in those cases where persons had
conveyed property to others on the understanding that the latter would
use the property in certain ways or hold it for the benefit not of
themselves but of third parties. The trust concept is a relationship in

32
which one person (the trustee) has property vested in him by another (the
settlor of the trust) subject to an obligation to permit another person (the
beneficiary or cestui que trust) to have the beneficial enjoyment of the
property. The trustee is the legal owner of the property while the
beneficiary is the beneficial or equitable owner of the property.

The inventor, the author, and the manufacturer all claim protection for
their different products. In response to these claims and in order to meet
social and economic needs legal creativeness devised novel forms of
property, known as intellectual property. The two branches of intellectual
property law are industrial property (patent, trademark and design) and
literary and artistic works (protected by copyright).

A patent is a government grant to an inventor, securing to him for a

limited time the exclusive right to make, use, sell and license his
invention. Patents and ‘design patents’ constitute a legally protected
personal property right. This right is the property a person has in the
product of his own mind or brain: a thing that a person invents, designs,
writes for publication, or manufactures for sale. The purpose of giving the
legal protection is, in the words of the American Constitution, “to
promote the progress of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their respective
writings and discoveries.”17

A trademark is a distinctive name, mark or other symbol, often officially

registered, which is affixed by a manufacturer to his goods to identify
them and to distinguish them from those made by other manufacturers.

17
Reader’s Digest, You and the Law, 1978, pp. 190, 800.

33
The ‘trade name’ is used in trade to identify a particular business, its
products or the place where the business is located. It differs from a
trademark in that it is not affixed to products or because it is incapable of
exclusive appropriation by anyone as a trademark 18.

Copyright is an author’s right of literary property in literary and artistic

productions (the production of brain and pen), including the author’s
exclusive privilege of multiplying, publishing and selling copies of his
production, for a specified period of time 19. The symbol © (abbreviation
for ‘copyright’) is copyright notice and gives protection, under
international copyright conventions, in several countries. The law of
copyright gives protection against “the unauthorized printing, reprinting,
publishing, copying, selling, translating, conversion, arrangement,
adaptation, delivery or performance of any work copyrighted.” 20

The internationally recognized need for development has prompted the

addition of new considerations to the development of international law of
intellectual property. These new considerations include equitable sharing
of technical knowledge, prevention of restrictive business practices and
other forms of monopolistic phenomena. This has necessitated a re-
thinking of the Paris Convention for the Protection of Industrial Property,
1883, and the Berne Convention for the Protection of Literary & Artistic
Works, 1886. It has necessitated a re-examination of subsequent
developments and the works of the World Intellectual Property

18
Ibid., p. 816.
19
Ibid., p. 771.
20
Ibid., p. 194.

34
Organization (WIPO), including its Model Industrial Property Laws for
Developing Countries21.

B. Fictio Juris

Human language is inherently ambiguous and vague. It is not an

instrument of mathematical precision. That is why in law there is the
discipline of statutory interpretation. Definition of key terms minimizes
communication difficulty, thereby helping communication intelligibility.
Definitions are thus indispensable to any meaningful legal discourse. But
they remain mere approximations22.

Human society is not static but dynamic. And the human mind is always
seeking for adaptation to changing social conditions. The law being a
social phenomenon and the product of every society is also dynamic
thanks to the creativity of the human mind. No legal system is therefore a
code of undeviating strictness, bereft of any elasticity. English legal
history, for example, shows how the rigidity and harshness of the
common law was tempered by the flexible rules of Equity in a number of
ways, and was stretched and adapted to new circumstances by the
introduction of legal fictions.

21
KR Khan, ‘International Law of Development at Edinburgh,’ Third World Legal
Studies, 1986, 15, 30.
22
Hart (op. cit. p. 13) argues that definitions are primarily a matter of drawing lines
between one kind of thing and another. Every definition, says Dias, is no more than an
approximation to the detail of its subject-matter. See also, Dias, op. cit., p.11.

35
The urge to treat abstractions as real entities, writes Denis Lloyd, “has
been and remains particularly strong in the field of legal and political
concepts where such concepts are highly charged with various emotional
overtones.”23

Thus, to walk in the realm of fiction is to pretend or assume that a thing

exists whereas it does not exist in fact or that it does not exist whereas it
exists in reality. Henry Maine used the term legal fiction to signify “any
assumption which conceals, or affects to conceal, the fact that a rule of
law has undergone alteration, its letter remaining unchanged, its operation
being modified.”24 Such fictions still exist in the form of, for example,
conclusive presumptions. The history of English law shows that the more
fictitious fictions were designed to give jurisdiction to courts and to
extend substantive remedies by a false averment of a fact which could not
be traversed, and were necessary in an era of formal pleading.

The law has thus come to abound with legal fictions. They are probably
indispensable for legal thought. Yet, they are only loose equivalents of
the principal concepts in relation to which they are built. As such they are
even less concrete than the principal concepts themselves. “The fictions
of Jurisprudence are ... assertions about rules of law and not about the
facts to which these rules apply, although they often take the form of
attaching to new groups of facts consequences formerly following other
groups. In essence, they are metaphors of speech, terminological devices,
and not distortions of the truth.” 25 Legal fictions include presumptions

23
The Idea of Law, 1987, p. 285.
24
HJ Maine, Ancient Law, F Pollock (ed.), John Murray, London, 1927, p.30.
25
JW Jones, Historical Introduction to the Theory of Law, Oxford University Press,
1940, p. 177.

36
and constructive notions, these being mere suppositions of law
irrespective of their truthfulness so long as they are consistent with the
requirements of justice.

An illustration of a legal fiction is the concept of ‘juristic or legal person’

as opposed to ‘natural person’. A juristic person is a mere creation of the
law which then attempts to treat it in the same way it treats a natural
person. In the English case of Bolton (Engineering) Co. Ltd v. Graham &
Sons26, Lord Denning asserted that:

“A company may in many ways be likened to a human body. It has a

brain and nerve centre which controls what it does. It also has hands
which hold tools and acts in accordance with directions from the centre.
Some of the people in the company are mere servants and agents who are
nothing more than hands to do the work and can not be said to represent
the mind or will. Others are directors and managers who represent the
directing mind and will of the company, and what it does. The state of
mind of these managers is the state of mind of the company.”

The question whether it is ‘proper’ to treat artificial creations and ‘blood

and flesh’ human beings alike has exercised the minds of jurisprudents
for a long time. Juristic persons are treated only as if they were human
persons whereas in fact they are not. In other words the idea that a
corporation is a ‘person’ is mere fiction. The ‘person’ called a company is
a legal construct and the state of affairs is unreal and no more than one of
constructive or presumed reality. The corporation seemingly enjoys
perpetual existence and is immortal. It has no soul to be saved or body to

26
(1957) 1 Q.B. 159, CA at p. 206.

37
be kicked and is therefore incapable of sin27. In spite of the corporate
personality principle the courts readily ‘lift the veil of incorporation’ in
order to do justice in particular cases.

All legal systems make use of fictions 28, including presumptions, maxims
and constructive notions, all of which also appertain broadly to the field
of fiction.

Presumptions are conceptually different from fictions, but are in fact

frequently mere fictions. A legal presumption may be an expression of
truth or falsehood. A legal fiction, on the other hand, involves the
legitimization of falsehood by treating the falsehood as source of legal
truth. According to one author,

“Les présomptions et fictions, si elle présentent une certaine analogie du

point de vue de la verité, resortissent pourtant ă des categories distinctes.
Les présomptions se rattachent ă la théorie de la preuve, les fictions ă la

27
Stepney Corporation v. Osofsky (1937) 3 All E. R. 289 at p.293, per Greer LJ.
Equally, in Rolloswin Investments Ltd v. Chromolit Portugal SARL (1970) 1WLR
912, it was held that since a company was incapable of public worship, it was not a
person within the meaning of the 1677 Sunday Observance Act, so that a contract
made by it on Sunday was not void.
28
In French law a distinction is made between ‘les fictions jurisprudentielles’ and ‘les
fictions legales’, ‘case-law’ and ‘statutory’ fictions. The former are “ni erreur ni
tromperie mais des procedes de technique judiciaire, [et] sont utilisees parfois par des
juges qui se refusent d’appliquer une disposition legislative, parce qu’ils la trouvent
inique ou deraisonable, et qui n’ont pas le pouvoir legal de modifier le text de loi.”
Chaim, P., ‘Presomptions et Fictions en Droit: Essai de Synthese,’ in Les
Présomptions et les Fictions en Droit, Bruxelles: Etablissements Emile Bruylant,
1974, p.348. “Case-law fictions are not errors or deceptions. They are processes in
judicial technique. They are sometimes used by judges when they decline to apply
statutory provisions that they consider iniquitous or unreasonable, and they do so
because they have no legal power to modify the text of the statute.” (My translation).

38
théorie de l’extension de la norme en droit, voire ă celle de création ou de
la légitimation de celle-ci.”29

Legal presumptions frequently lead to the creation of constructive

conditions. A constructive X or Y is an X or Y by mere imagination of
law.

Constructive notions are a part of legal fictions and are generously

resorted to by the law for a variety of purposes30. From the perspective of
its nature and purpose, the constructive notion is an intriguing legal
concept. How do constructive concepts and conditions come into being?
What purpose do they serve? Are they indispensable? We ask questions
about law or aspects of the law because our knowledge of the law, like
our knowledge of things in general, is rarely all-embracing. We therefore
ask questions in the hope of gaining knowledge on the particular point, or
in the hope of dispelling some mist or cloud surrounding the particular
point, or even in the hope of getting an answer confirmatory of our own
understanding of the point.

29
P Foriers, ‘Présomptions et Fictions’, in Les Présomptions et Les Fictions en Droit,
Bruylant, Bruxelles, 1974, p.8. “Even though presumptions and fictions are somewhat
similar from the perspective of truth, they nevertheless belong to distinct categories.
Presumptions relate to the theory of proof, fictions to the theory of norm expansion in
law, in fact to the theory of norm creation or legitimization.” (My translation).
30
Examples of constructive notions include: the juristic person, vicarious liability,
constructive trust, constructive trustee, constructive notice, constructive force,
constructive fraud, constructive delivery, constructive dismissal, constructive
desertion, constructive malice, constructive treason, constructive total loss,
constructive knowledge, constructive possession, the rule that husband and wife are
‘one’, and the rule that judges do not make the law but simply declare it. The heads of
constructive notions are certainly not closed. R Fombalang, An Appraisal of the
Constructive Notion in Law, ‘Doctorat de 3ĕ Cycle’ Thesis, Université de Yaoundé II,
1994.

39
The ‘why’ and ‘how’ questions about given aspects of the law are
therefore of particular importance in that they bring to the surface the idea
of conflicting interests which the law always seeks to reconcile,
harmonise or resolve with the attendant objective of maintaining peace
and order in society.

At times the law provides rules or concepts which seem to be

unconsciously in favour of some given interest and in apparent disfavour
of others. When that is the case people are apt to question why the law
should be so or how it can be justified. At times even the justifications
that are given are themselves put to question.

A discourse on the constructive notion in law is no more than a look at

one of two antinomic values ---- the antinomic value of fiction as opposed
to that of concrete reality31. The law oscillates between these two values,
an indication of man’s love for both fiction and concrete reality. But how
indispensable are fictitious entities with regard to the law? How effective
is the constructive notion a tool for the realization of justice which is the
ultimate objective of the law? Do fictions aid in the quest for justice?

Ordinarily the word ‘constructive’ means helpful, useful and suggests

improvement of something. As a legal term of art, the word is used
“where the law infers or implies (construes) a right, liability or status
without reference to intention of parties ... or that a transaction or
31
The law strives to reconcile opposing interests. Unfortunately it does not always do
so in a mutually acceptable manner. The search for harmony is challenging. The law
oscillates between antinomic values. For example, the individual stands in opposition
to the community, fixity to adaptability, subjectivity to objectivity, tradition to
modernism, stability to change, rigidity to flexibility, certainty to uncertainty. In the
absence of a single promising formula for effective reconciliation values continue to
conflict.

40
operation has not taken place, but that some equivalent has.” 32 A
constructive notion may thus exist in the form of an assertion that a given
state of affairs exists whereas in actual fact it does not exist.

It may also exist as a form of denial of any claim of ignorance of facts

that may be known otherwise than by direct notification, or as a form of
denial of any claim that the consequences of an act or omission may
always be too different from its result (i.e. treating the consequences of an
act or omission as being more or less the same as its result).

Take three vehicles A, B and C. Supposing A collides with B, propelling

B with such force that B hits C in consequence. The hitting of C is not the
result of the collision but only a consequence of the collision. The result
of the collision is the propulsion of B. The hitting of C has only a causal
and not an intrinsic relationship with the collision. In order for the hitting
of C to be treated as the result of the collision between A and B some use
would have to be made, either expressly or tacitly, advertently or
inadvertently, of a ‘constructive’ concept, whether so called or not.

A constructive notion has the effect of creating a constructive condition,

which also falls into the general nomenclature of legal concepts and
appears either as a legal principle or a legal doctrine. The boundary
between legal principle and legal doctrine sometimes appears tenuous and
almost inconsequential. Nevertheless the dividing line between the two
exists and is technically relevant.

A ‘constructive condition’ denotes a state of being or a state of affairs, the

actual or true nature of which is misrepresented by the law. An example
32
See Jowitt’s Dictionary of English Law; Osborn’s Concise Law Dictionary.

41
is the crime of statutory rape which punishes as forcible intercourse the
man who has consensual sex with a girl below the legally specified age of
consent. Neither the girl’s consent nor the man’s genuine belief that the
girls is of age are of any moment. It follows that the state of affairs
consequent upon the man’s prosecution for ‘rape’ must be constructive in
nature.

The statutory ‘rapist’ is put on exactly the same footing as the actual
rapist (that is, the man who has carnal knowledge of a female forcibly or
otherwise without her consent). In a situation like this the law is
communicating the following message:

“If you choose to have intercourse with a willing female who may be
over or under the age of consent, you will be playing a game with the law
as well as with her. If she is under age, you lose the game and will be
condemned as a felon, regardless of what she may have told you and
regardless of the reasons you may have had for believing her.” 33

In the discharge of their judicial functions judges often create

constructive conditions, consciously or unconsciously34. An unconscious
creation of a constructive condition rests upon an error both in fact and in

33
HM Hart, ‘The Aims of the Criminal Law’, Law and Contemporary Problems, vol.
23, 1958, p.430.
34
Courts have the duty and the authority to interpret legislation. This involves to
some extent a power to make law, for the role of the court is also creative. The court
fills in gaps in the law. It assigns meaning to obscure and ambiguous words and
phrases. In this process judges do make law though many would deny, for ideological
reasons that they do. Case-law is thus created through the application and adoption of
new rules by the courts in the process of the administration of justice. However, the
creation of new law is for the judge an ultima ratio only. He resorts to it when the
existing positive and non-positive sources of law give him no guidance, or when the
abrogation of an obsolete precedent becomes imperative.

42
law. The court inadvertently identifies the constructive state of being as
an actual or factual state of being. In determining disputes courts rely for
the most part upon such evidence as adduced by the litigating parties and
their witnesses. Judicial decisions thus rest upon relevant and admissible
evidence since it is the duty of the court to decide according to what is
pleaded and proved.

Yet, it is a truism that it is impossible to reconstruct any past event with

accuracy by relying on the evidence of witnesses and objects tendered
before the court as exhibit of alleged facts. The danger of relying solely
on the evidence of witnesses is that there can easily be misunderstanding,
misinterpretation, misevaluation, mistaken observation, downright
forgetfulness, or deliberate lying on the part of the witness.

The unpredictability of witness’ evidence goes to explain the further

unpredictability as to how the judge shall decide a pending case, and this
accounts, as Realists have pointed out, for uncertainty and non-uniformity
in law. Because even when a person has the given facts of a case, he
cannot with much certainty predict that the decision of the court will be
this way and not the other. Much will depend on how effectively and
persuasively either side makes his case before the court. Realists have
therefore contended that the law is never embedded in a statute or
precedent but in each given judgment, the which, on being given or
passed expires forthwith35.

35
Dias, p. 619. Some Realists have made a bewildering distinction between law and
sources of law. Law is what the judges decide. Everything else, including statutes is
only a source of law until interpreted by a court.

43
When witnesses sway the court to believe in their lies, or when they give
false evidence due to genuine forgetfulness, misunderstanding or
misevaluation, a judge in relying upon such evidence as the basis of his
judgment creates a constructive state of affairs unconsciously. The judge
has unwittingly bought the untrue state of affairs and built his judgment
upon it as if such were the true or actual state of affairs. The judgment
proceeds from an error in fact and produces an error in law.

A judge may appeal directly to a constructive concept, and hold it to be

relevant and applicable to the case before him. When he does so, he
thereby consciously creates a constructive condition. This involves one
error only, an error in fact. When a judge says that a litigant had, for
example, constructive notice of something he in fact puts the litigant in a
constructive state of being, a position that belies the real state in which
the litigant is. By proceeding from the premise that in the circumstances
the litigant ought to have had notice but for his undue lack of vigilance,
the litigant is put in the same position as one who had actual notice. The
judge in so construing the position of the litigant understands of course
that he may be doing no more than giving to a real fact-situation a false
interpretation.

The doctrine of strict liability imports a constructive concept. It is often

invoked by judges in appropriate cases. In criminal law, offences of strict
liability are those offences, the commission of which does not require
intention, actual knowledge or bad motive for responsibility to exist.
They are essentially regulatory offences, crimes mala in se. In civil law,
wrongs which carry strict liability are those which dispense with fault or
negligence.

44
In English law of torts the doctrine of strict liability was propounded in
the case of Rylands v. Fletcher 36, marking a trend towards the substitution
of a liability not based on fault for the fault principle in certain situations.
That case decided that anyone who in the course of a non-natural use of
his land accumulates thereon, for his own purposes, ‘anything likely to do
mischief if it escapes’ (i.e. anything dangerous per se) is answerable for
all direct damages caused thereby. In the words of Blackburn, J. who
delivered the judgment of the court, “[I]t seems but reasonable and just
that the neighbour who has brought something on his own property which
was not naturally there, harmless to others so long as it is confined to his
own property, but which he knows to be mischievous if it gets on his
neighbour’s, should be obliged to make good the damage which ensues if
he does not succeed in confining it to his own property.”

When a judge in a tortious action applies the rule in Rylands v Fletcher,

he does so with the awareness that the defendant is only a constructive
tortfeasor in so far as the mental element is concerned. In insurance law
calls by academics for the implementation of strict liability or ‘no-fault’
compensation schemes for personal injuries arising from industrial and
road traffic accidents have yielded fruits in a number of jurisdictions.

Another doctrine that imports a constructive concept is that of vicarious

liability. A person is said to be vicariously liable when he is held
responsible for the misconduct of another, although he may himself be
free from any blameworthiness. Vicarious liability frequently arises in
cases of master-servant, parent-child, and principal-agent relationships.
By holding one party vicariously liable for the fault of another, the wrong

36
(1866), L.R. 1 Ex. 265; (1868), L.R. 3 H.L. 330.

45
in question is constructively attributed to him consistently with the legal
aphorism, qui facit per alium facit per se.

“Seen from the standpoint of the master, this appears as an example of

strict liability. He is held responsible for a wrong which he has not
himself committed but which is imputed to him. But seen from the
standpoint of relationship between the injured and the wrongdoer,
vicarious liability means a transfer of the primary responsibility from the
immediate tortfeasor to a third party.”37

A constructive condition invariably arises when, as in France, for

example, the judge at times proceeds to try a defendant on a deliberate
wrongly preferred or classified charge. The process is known in the
literature as ‘contraventionnalisation judiciaire’ and
‘correctionnalisation judiciaire’38. This involves the fictional
transmutation of a misdemeanour into a ‘simple offence’ (in the former
case), or a felony into a misdemeanour (in the latter case), and its actual
trial as such. This entails treating certain critical facts or circumstances of
the case as if they never occurred. A constructive state of affairs is thus
substituted for the actual one. The French judge does so without any
statutory backing. But he labours under an urge to mitigate the plight of
the offender.

37
W Friedmann, Law in a Changing Society, Universal Law Publishing, New Delhi,
2003, p.168.
38
“Un procédé juridiquement illégal, mais pratiquement très repandu, qui consiste ă
déférer ă la juridiction correctionnelle, un fait qui constitue en realité un crime; la
disqualification s’opère, par exemple, en négligeant l’existence d’une circonstance
aggravante.” Guillien R & Vincent J, Lexique des Termes Juridiques, Dalloz, Paris,
1985. “A procedure in law that is illegal but very widely used, consisting in charging
as a misdemeanour an offence that is in fact a felony; that wrong charge being
preferred, for example, by overlooking an aggravating circumstance in the facts of the
case.” (My translation)

46
More often than not, this plight stems from the somewhat rigid and harsh
‘law of aggravating circumstances’ and the seemingly iniquitous French
criminal law requirement that an attempt be punishable in like manner as
the consummated crime. The French judge is then prompted by noble
motives to resort to some ‘equity’ of sorts in order that the conduct of the
accused may attract a penalty more compatible with conscience even if
highly incompatible with the rigid dictates of the law.

When an attempt is made to transmute mathematical probabilities into

judicial certainties, this may frequently culminate in the creation of
constructive conditions. The law’s development has so far witnessed the
establishment of rules whose parameters exhibit an urge to use a
mathematician’s paraphernalia to explain human behaviour 39.

Yet, social behaviour cannot adequately be assessed by the use of

mathematical formulae. In English criminal law, it had long been an
established rule of law, that every person intends the natural
consequences of his act. The cases show that this rule presumes an
intention to cause that which is the probable result or consequence of
one’s act. In practice the rule is applied more readily only in trials for
murder. In so doing, the judges have usually been moved by the need to
protect lives by punishing gross negligence likely to cause death. At first
this presumption of intention was irrebuttable.

39
Cf., Director of Public Prosecutions v. Smith [(1960) 3 All E.R. 163; (1961) A.C.
290 which, in Glanville William’s observation “opens the door to an increase in the
number of crimes of fictitious intent.” Criminal Law: The General Part, Stevens &
Sons, London, 1961, p.97.

47
But with the passage of time the question soon arose whether negligence
was a state of mind. In Woolmington v. Director of Public Prosecutions 40,
Lord Sankey denied the peremptory nature of the presumption. “If it is
proved,” he said, “that the conscious act of the prisoner killed a man and
nothing else appears from the case, there is evidence upon which the jury
may, not must, find him guilty of murder.” 41

Like Western law, African law also resorts to legal fictions as a means of
effecting necessary adjustments in legal rules; as invaluable expedients
for overcoming the rigidity of the law. In African customary law, legal
fictions appear to serve two main purposes: to adapt traditional legal
concepts to meet the needs of changing economic and social
requirements, and to temper justice with mercy. Overall, these fictions
serve to explain a number of apparently curious features of African
customary law42 such as the concept of the family, the role of religion and
rituals in the judicial process, the whole mechanism of redressing wrongs,
and so on. For,

“Africans are ingenious people and have devised another and easier way
of getting out of an impasse. If any custom or law begins to feel
oppressive, they do not care to abrogate it at once on account of its
religious sanction. But being masters of legal fiction, they devise a

40
(1935) A.C. 462.
41
The English Criminal Justice Act, 1967, has since provided in s. 8(a) that in
determining whether a person has committed an offence, the court shall not be bound
to infer that he intended or foresaw a result of his actions by reason only of its being a
natural or probable consequence of those actions.
42
Elias, op. cit., p. 184.

48
ceremony which in any particular case will absolve them from the
operation of the old law.” 43

Particular samples of fictions may be mentioned. Consider the apparent

confusion between sociological and physiological paternity/fraternity
when an African calls an elderly person or a distant and sometimes
unrelated village head ‘father/mother’ and a remote cousin
‘brother/sister’. In fact he uses these terms on the grounds of politeness
and in the interests of group solidarity, in other words, as mere
symbolism. But when the proper occasion arises he emphatically
differentiates between his biological and sociological relations. In the
field of law, he slides from the metaphorical or figurative language to the
domain of fiction if by doing so justice may be done. Thus, the fictional
‘brother’ enables the law of the tribe to be extended to embrace strangers.

“By intermarriage, the protection of friends, blood brotherhood, inter-

tribal societies, and the rules of hospitality, foreigners are assimilated
with the community as ‘brothers’ and are thereby brought within the pale
of the law. The adoptive family treats them more or less as blood
members and may even go to their rescue in times of social or economic
stress. The usual help given to members fined for offences against third
parties is normally available to them in proper cases. Good fellowship
and mutuality of interests are the abiding features of this sociological
fraternity which is so often misunderstood in many legal
considerations.”44

43
JH Driberg, ‘The African Conception of Law’, Journal of Comparative Legislation
and International Law, November 1934, p.242. He cites an example of a ceremony
among the Tonga (in what is today Zambia) which breaks down the blood-tie and thus
authorizes a form of marriage legally incestuous.
44
Elias, p. 177.

49
But the law of marriage is extremely strict and certain unions are
considered incestuous on account of the principle of exogamy which
requires that consanguinity, however remote, is always a bar to marriage.
The foreigner assimilated with the family/community as ‘brother’ might
thus, in a given factual situation, find himself prevented by the incest
taboo from getting married within the community. However, there is
always a way out. Where the justice of the case demands, the taboo could
be lifted by a ceremony which removes the fictional blood connection
based on the artificial consanguinity of the family.

Consider also the African conception of the family. This unit is conceived
as a perpetual entity comprising the living and the dead. This idea of
family, the extended family, explains in a practical way the African
attitude towards land and towards communal relations. Land is conceived
as belonging to the dead, the living and the still-to-be born, and therefore
inalienable.

“The spirit world is inextricably involved with the present, and the
interests, aspirations, ambitions of the dead continue to exercise their
control over the living. ... The law has the moral support not only of the
living clan, but of all its dead members ... This terrific antiquity, remote
but ever present, is in itself a very potent factor in securing due regard for
the law. But it does more: it introduces a religious sanction, which is
perhaps the most potent factor of all. No compensation for offence, no
reparation is complete without sacrifice. Every offence has to be both
legally compensated and purged ceremonially. ... Ritual is inseparable
from restitution. ... [T]he dead ancestors, transmuted and deified, still

50
partake in the continuity of the clan. Reparation satisfies the living, but
without sacrifice and oblation the wrath of the gods is not appeased.” 45

Another example of fiction can be seen in the law of outlawry. A person

who is a menace to the security of the community or a constant danger to
its equilibrium may be disowned, that is, outlawed. “He is publicly
deprived of his status and driven from the protection of the clan by
ceremonies partly legal and partly religious. He is absolved of
consanguinity, and by a legal fiction has no filiation with the clan’s past.
Henceforth he has no ancestry and no kindred: he can claim help neither
from the clan nor from individuals. He is denied shelter and hospitality,
and this abrogation is made the more effective by the imposition of a
comprehensive curse on any who dare to show the outcast the slightest
favour.”46

There are several other examples of fictions in African law, some quaint
examples of which are given by Elias 47. For instance, if one family
member kills another without lawful excuse, the unpleasantness of the
murderer being executed by another family member of his is avoided by
resort to legal fiction. The family employs an outsider to execute the
murderer on the fiction that the execution carried out by the alien is akin
to the killing of an enemy during a battle. Among some tribes, the family
would arrange a sham fight in the course of which the murderer would be
accidentally shot by a carefully selected marksman, the fiction being that
the sharp shooter’s act was a mere accident.

45
JH Driberg, At Home with the Savage, George Routledge & Sons Ltd, London,
1932, pp. 223-224.
46
Ibid., p. 226.
47
Pages 177-183.

51
In ancient Baganda there used to be the fiction that all aristocratic
adulterers were potential murderers who would not scruple to kill any
interloper and for whom death was considered to be the appropriate
penalty. And it seems to have been the case among the Matabele that a
slave was sometimes allowed to succeed to his master’s property on the
latter’s death, not on any analogy with the Roman institution of heres
necessarius, notes Elias, but on the fiction of adoptive relationship. “A
good slave became assimilated with his master’s family, and, if he
showed the venerated qualities of generosity, intelligence, integrity and
leadership ability, there was no reason why he could not become the
family head or, indeed, a tribal war-chief.”48

Under African customary law, all children born to a man’s wife, whether
begotten by him or not, and even if begotten after his death, are regarded
as his legitimate issue. If a woman was never legally married to the
deceased person, she would be ‘married to the grave’ of her deceased
man. By the levirate custom she is then taken as wife by the deceased
man’s younger brother in the name of the deceased. By a legal fiction, her
children are regarded as the deceased’s children and her eldest son then
succeeds the deceased.

In Swaziland, one fictional method of supplying an heir to succeed the

deceased is by imposing a posthumous wife and retrospectively
validating her marriage and so conferring the status of heir on a particular
male child. Thus a child other than that of a recognized marriage might be
appointed successor by a process which literally means putting a child in
the woman’s womb (kufaka esiswini). This is done when the wife or

48
Elias, p. 181.

52
senior wife does not have a son. Thus a form of fictional fulfillment takes
place.

In all African societies the incest taboo is very strong. But the law against
incest is sometimes circumvented by resort to a fiction. “In remote
cognatic or affinal relationships, objections to a proposed marriage on the
ground of incest are often overcome by mutual agreement between the
families concerned or, in difficult cases, by a fictitious ceremony of
‘cutting off the relationship’... Once this ceremony is performed, all legal
impediments in the way of the marriage are notionally removed and the
distantly related couple may now get married.”49

Why legal fictions? On one view legal fictions are an unnecessary

pretence: they only go to make an ass of the law; an unwary judge may
easily invoke them without a prior and proper scrutiny of all the
alternative conflicting principles and doctrines that are also relevant to the
case before him.

Legal fictions create an imaginary circumstance, situation or condition

and treat it as real. Their effect is that the unreal is equated with the real.
They thus tend to give an asinine outlook to the law. They make an ass of
the law. For instance, an old English law rule, now fortunately abolished,
stipulated that a married woman who committed a crime in the presence
of her husband was deemed to have done so under his compulsion.
Underlying that rule was the notion of constructive compulsion which
went to negative the woman’s blameworthiness. The stupidity of the rule
led to its abolition.

49
Ibid., p. 182.

53
Consider also the concepts of ‘constructive rape’ and ‘constructive
adultery’ that have been floated in some jurisdictions. In some
jurisdictions the forcible penetration of a woman with any object or
instrument is deemed to be rape (so-called rape by instrumentality). And
Devlin informs us that in England it has been proposed that the practice
of artificially inseminating a married woman with male seeds other than
those of her husband be made a criminal offence 50 on the ground that
such a practice was tantamount to adultery, if not in form, then at least in
substance. By parity of reasoning artificially inseminating a woman by
force, fraud or misrepresentation would amount to rape. And yet it is
doubtful that the practice can properly be characterized as adultery or
rape as those terms are commonly understood. In both cases one critical
ingredient is absent. There is no penile-vaginal penetration. There is only
a fictional pretence that there is. This legal make-belief is achieved by
resorting to the constructive notion.

Legal fictions would therefore appear to be a ‘dishonest’ exercise in

language games. The ‘season of fictions’ may not be over. But it is
probably the case that not all fictions are legitimate. Furthermore, a
thinker like Bentham was inclined to the view that fictions are a thing to
be ashamed of, charging that lawyers “can no more speak at their ease
without a fiction in their mouths than Damosthenes without his pebbles” 51

In his view, judges resort to fictions so as to conceal certain things from

others. Fictions may possess such an appeal that they can become handy
tools for an unwary judge minded to further some interest or preference

50
Devlin, Lord Patrick, ‘Morals and the Criminal Law’ in Dworkin RM (ed.), The
Philosophy of Law, University Press, Oxford, 1977, p.66.
51
Quoted in JW Jones, Historical Introduction to the Theory of Law, Oxford
University Press, 1940, p. 75.

54
he may harbour. He may then reach results justifiable only in terms of the
law’s technicalities. Concepts, it has been said, are excellent servants but
not always good masters. They may easily carry lawyers into several
unexpected paths52.

Proponents of the retention of fictions in law contend that contrary to

what ‘abolitionists’ claim, legal fictions in fact prevent people from
making an ass of the law. They prevent people who are smart from taking
unconscionable advantage of the law to cheat or abuse innocent people,
and thus prevent attempts to make the law look stupid and defeat justice.
Stability and certainty are important attributes of the law. But so too are
flexibility and adaptability to meet the needs of ever changing social and
economic conditions and values.

Fictions tend to make the law both stable and yet adaptable. They present
themselves as indispensable tools at the disposal of the legislator and the
courts. They tend to multiply in order to fill gaps both in the substantive
law itself and in its operational processes. Thus Bentham was later to
admit that abstract concepts of right, duty, obligation, duty, and so on, are
necessary and indispensable fictions without which “the matter of
language could never have been formed, nor between man and man any
converse carried on other than such as hath place between brute and
brute.”53

This view is shared by a number of authors. According to one:

52
Lloyd, pp. 293-295.
53
J Bentham, Theory of Fictions, Ogden CK (ed., Routledge & Kegan Paul, London,
1932, p. 137.

55
“Il serait ... contarire aux exigences de la connaissance et de la vie de
prétendre de passer de ces créations de l’esprit que sont les notions
générales, les concepts. Car les concepts sont précisement nécessaire ă
l’homme pour penser le réel et pour le percevoir. Nous avons besoin du
général pour aller ă l’individuel, de l’abstrait pour parvenir au concret.”54

Jones submits that fictions are not an odd anomaly but “the type of a
mental process which is indispensable if thinking of any sort is to be
possible.”55 Thus, legal fictions are indispensable for legal
conceptualization and for the law’s effectiveness in each appropriate case.
Fuller identifies other factors that motivate the use of fictions 56. These
factors include: policy considerations 57, emotional conservatism,
convenience58 and intellectual conservatism59.

54
Morin, G., ‘Vers la Revision de la technique Juridique,’ in Archives de Philosophie
du Droit et Sociologie Juridique, Verlag Detlev Auvermann, Taunus, 1972, p.72. “It
would be against the exigencies of knowledge and life to presume to overlook these
creations of the mind that are general notions, concepts. For concepts are in fact
necessary for man to think and perceive the real. We need the general in order to get
to the particular, the abstract to arrive at the concrete.” (My translation).
55
Jones, op. cit., p.166.
56
Dias, op. cit., p.435.
57
For example, the notions of constructive trust and constructive notice. It is against
public policy for anyone to make a profit from his own wrong or crime. Accordingly,
a beneficiary who receives property or money after having murdered the testator or a
life insurance policy-holder is made to hold the property or money on trust for the
deceased’s estate. Because of his crime, a constructive trust is imposed in his
disfavour. The notion of constructive notice encourages vigilance. It bars an
individual from acting in a way harmful to a multiplicity of interests. It seeks to
ensure that no one is victimized by the negligence of another.
58
Fictions are often used for mere expediency. Courts have to find solutions to
practical problems brought before them. At times they find themselves placed on
tenterhooks and may only find an answer by appealing to legal fictions.
59
Sometimes a judge adopts a fiction simply because he does not know how else to
state and explain the new principles which he wishes to apply. In so doing he
conserves his inclination as to what he thinks are the demands of justice with regard
to the case before him. For example, the English judge would readily resort to the
well established concept of constructive trust rather than to the doctrine of unjust

56
enrichment which, although firmly established in continental Europe and in the USA,
remains somewhat obscure in England.

57
58
59
60
 Chapter Two
The Nature of Law
Section 1 Law, Morality and Authority
Man has always felt the need for order in society, that is to say, the need
for restraint, predictability, consistency, reciprocity and persistence in
human behaviour. In every organized society there must be an authority
who issues decrees or commands to ensure order in the community. In
other words there must be law to foster social order. Law itself
commands authority largely because a certain aura of legitimacy
surrounds it. This aura of legitimacy stems from a belief that one has a
moral obligation to obey the law.

A. Law and Morality60

Nowadays people have a purely secular conception of law: law is

apprehended as something made by man for man and to be judged in
purely human terms. In other words ‘law’ refers to the positive law, man-
made law and not the moral or ‘natural law’.

That is not how law was regarded in the olden days. In those days
religion and morality were treated as inevitably interwoven. For example,
according to Biblical teachings the Ten Commandments are traceable
directly to a divine lawgiver, God Himself. Other laws may owe their
origin to human sources, but these human lawgivers were regarded as

60
HLA Hart, Law, Liberty and Morality, OUP, 1984; P Devlin, The Enforcement of
Morals, OUP, 1985; D Lloyd, The Idea of Law, Penguin, London, 1973; J Farrah,
Introduction to Legal Method, Sweet & Maxwell, London, 1977; J Finnis, Natural
Law and Natural Rights, Clarendon Press, Oxford , 1986; J Raz,, The Authority of
Law, Clarendon Press, Oxford, 1983.

61
divinely inspired, for example, Hammurabi. In the olden days then law
was regarded as rooted in religion. This accounts for the moral authority
which law commands even today; it explains why people feel they are
morally obliged to obey the law.

Hegel’s philosophy posits that the state is supreme and represents the
very embodiment of morality. As a result citizens have a moral duty to
obey the laws of the state unquestioningly.

There is thus a great deal of common ground between law and morality.
But this is not to say that the dictates of law and morality always
coincide. If the law dictates acts which are patently immoral then
morality requires and justifies disobedience rather than obedience.
Furthermore, while there may be laws which are moral, a great many of
them are morally neutral.

There exists a broad territory common to law and morality because both
are concerned to impose certain standards of conduct vital for the survival
of society; for example, the general reprobation against theft, murder and
immoral behaviour. Here positive law is derived from natural law. On the
other hand, law and morals do diverge. For example, the law condemns
and punishes sexual immorality in various forms. But it refuses to attach
legal consequences to certain types of immorality such as prostitution,
fornication, having a boy or girl friend, and so on. Furthermore, whereas
a parent is under a legal duty to care for and protect his infant child, the
same parent is under no legal duty to go to the rescue of another person
who is drowning. In such cases the law shrinks from pursuing what may
be recognized as ‘the authentic path’ of morality.

62
There are at least two reasons why the law may shrink from following the
path of morality. First, the higher ethical attitude may not be sufficiently
embodied in popular sentiment to be productive of legal action in
conformity with it. Secondly, there are many fields of human activity
where the law deliberately prefers to abstain from supporting the moral
rule because it is felt that the machinery is too cumbersome to engage
upon the particular task and that more evil may be created than prevented
by its intervention. It is for this reason that the law refuses to penalize, for
example, drunkenness or fornication in private. In fact the treatment of
adultery as a criminal offence is virtually a dead letter. The maintenance
in the criminal law of offences which are generally never enforced tends
to do more harm by bringing the law generally into disrepute.

Rules of morality are not enforceable by the courts. They depend for their
effect solely on the force of public opinion or one’s own conscience and
convictions. Whereas the purpose of the law is to maintain peace and
order, that of morality is to perfect man’s inner self. The law imposes a
far shorter list of duties towards one’s neighbour than morality does.
Law-imposed duties are narrowly defined. Moral obligations are wide
and appeal to justice generally and even to charity. The Biblical counsel
to return good for evil is a moral precept; but such a concept would be the
very subversion of the criminal law. Again, whereas the law is concerned
with the external human conduct morality is concerned with the heart and
soul. Morality therefore frowns on attitudes such as greed, jealousy,
hatred, and so on.

Though these differences exist, it is the case that the laws of a country are
usually to some extent an expression of current morality. Also, religious
commands sometimes coincide with legal rules. However, whereas legal

63
rules are enforced and sanctioned by the state, the transgression of a
religious command is sanctioned ultimately by God because religious
ordinances are concerned with the relationship between man and his
Maker.

B. Law, Authority and Force61

For society to survive there must be order, and for there to be order there
must be an authority to issue commands backed by force to ensure
compliance. Order demands the combination of authority and force.

The concept of authority implies the existence of a superior party (the

ruler or governor) entitled to issue commands to an inferior party (the
ruled or governed) who must then obey whether he likes, accepts or
desires the orders or not. The inferior party obeys because he feels
obliged to do so. For example, the vassal feels bound to obey his
overlord. What elicits obedience on the part of the inferior party would
seem to be a peculiar aura or mystique about the superior party that
arouses in the inferior party a feeling that the superior party can
legitimately give orders which he is bound to obey. This feeling of
legitimate subordination is of great significance in law.

It fell upon the German sociologist, Max Weber, to analyze the ways in
which authority establishes itself in human society. Weber denotes
authority as ‘legitimate domination’. He distinguishes three forms of
authority, namely, charismatic, traditional, and legal. Charisma creates

61
J Raz, op. cit., chapters 1, 3 and 4; J Farrah, op. cit., chapter 3; J Finnis, op. cit.,
chapters 4 and 5.

64
authority by the sheer personal ascendancy of a leader such as a military
conqueror, or a person fighting for a popular cause, or even a dictator.
The influence and personality of such an individual are so strong that they
confer an indisputable aura of legitimacy over all his acts. When such an
individual dies the charisma that attached to him may evaporate.

Sometimes, however, charisma does not attach to the person of the leader
alone. In such a case, when the charismatic leader dies the authority
derived from his personality will pass (albeit in an attenuated form) to his
successors; for example, the descendants of a charismatic founder of a
dynasty or the disciples of the founder of a religion. If this situation
continues for a long time the original charisma will become
institutionalized. In other words, it will become embodied in certain
permanent institutions which will be formed largely by traditional usages.
Authority derived in this way is what Weber terms ‘traditional’ authority
or domination.

‘Traditional domination’ may gradually merge into the more developed

form which Weber calls ‘legal domination’. By that denotation he means
that the authority has become impersonal and legalistic. In other words,
the institutional character of the authority has largely, if not wholly,
displaced the personal one. Thus, for instance, the modern democratic
state has largely abandoned charismatic authority in favour of an
institutionalized legislature, bureaucracy, and judiciary that operate
impersonally under a legal order to which is attached a monopoly of the
legitimate use of force.

The element of legitimate authority is essential to the functioning of law

in society. But law cannot, in any practical sense, be possible if it is not

65
ultimately backed by effective force; for, law is essentially coercive in
character.

In the field of international law, however, there exists a system of rules

which all countries acknowledge to be binding upon them. These rules
are not enforceable by coercion for, there are no regular international
forces empowered to perform the role of the policeman. Yet these rules
are treated as a system of international law.

The fact is that law can be described exclusively in terms of authority or

exclusively in terms of force. In reality both these elements have to be
taken into account if one is to have a comprehensive conception of law.
Whenever the element of force is emphasized it is because in all societies,
human law has depended for its ultimate efficacy on the degree to which
it is backed by organized force. Without force, law as a means of social
control will be of little relevance to today’s society. Violence is therefore
not alien to law or of secondary importance to it.

Law does not limit itself to force to guarantee its continuance. It seeks in
addition to establish and cultivate a belief in its legitimacy, that is, in its
authenticity or genuineness. The legitimacy of the law may be based on
the charismatic qualities of particular leaders, or the impersonal rational
authority of the law.

66
Section 2 Law and Social Order 62

One of the main functions of law is to regulate human behaviour. It is in

this respect that rules of law differ from propositions describing the
behaviour pattern of nature.

The legislator uses the law to achieve certain social ends. Thus when he
wants to procure the social transformation of society, in whole or in part,
he uses the law to create and impose new patterns of behaviour. When he
is ambitious and impatient, he imposes a programme of compulsory
change. When he is cautions he proceeds slowly and in a less assertive
manner by simply creating models which the people may accept and
adopt if they choose. The model is encouraged by the lawmaker but
voluntarily adopted by the people.

A. Law and Social Control

As an instrument of social control the law helps to foster social order. The
law does this in a number of ways. First, it maintains public order in that
it provides a rationalized, peaceful and conclusive method of settling
disputes as well as suppressing deviant behaviour. This contrasts with the
situation in ‘primitive’ societies where the breach of rules was sanctioned
by private feud, vengeance (individual or collective), ostracism, ridicule,
avoidance, denial of favours, or reconciliation.

62
J Farrah, chapter 13; AN Allott, The Limits of Law, Butterworths, London, 1980,
chapters 1 to 4; W Friedmann, Law in a Changing Society, Universal Law Publishing,
New Delhi, 2003.

67
Secondly, law foster social order by facilitating co-operative action. Law
recognizes certain basic underlying interests and provides a framework of
rules for giving effect to them. For example, law recognizes a person’s
right to freedom from physical injury, and protects his property. Thirdly,
law constitutes and regulates the principal organs of power. It does this
through the medium of a constitution.

Finally, law communicates and reinforces social values. Law has always
enforced some morality. In every society the law is used to enforce at
least a minimum standard of morality. With the growth of collectivism
and the welfare state, a wide range of matters formally left to the
individual conscience has been made the subject of state control through
law. Sometimes law is enacted to regulate behaviour in advance of public
opinion. Sometimes also law is used partly as an educative medium on a
number of issues such as sexual morality, gender equality, and so on.
More often than not the lawmaker uses the criminal law and the civil law
as instruments of social control.

The purpose of the criminal law, says Wechsler 63 is to express a formal

social condemnation of forbidden conduct, buttressed by sanctions
calculated to prevent it. “In short,” wrote Sir Fitzjames Stephen in
volume two of his History of the Criminal Law in England (1883), “the
infliction of punishment by law gives definite expression and solemn
ratification and justification to the hatred which is excited by the
commission of the offence and which constitutes the moral or popular, as
distinct from the conscious, sanction of that part of morality which is also

63
‘The Criteria of Criminal Responsibility’, 22 University of Chicago L. Rev. 1955, p.
374.

68
sanctioned by the criminal law.” 64 A contrary view was expressed by JS
Mill who wrote in his essay On Liberty (1859) that the only purpose for
which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others.

“There are [thus] two conflicting approaches to the function of criminal

law … At one end of the spectrum, there are what we may call the
fundamentalists. To them the function of the criminal law is essentially
that of the defender and protector of moral values. Generally, this
approach goes together with the emphasis on guilt as the determining
element of criminal behaviour, and with a retributive theory of
punishment. It has, however, two aspects: one is the retribution, the
revenge of society upon the criminal (and by implication, immoral)
behaviour of the criminal. The other is the atonement, the expiation of the
criminal for the sins which he has committed against society. At the other
end of the spectrum, the utilitarian approach sees criminal law and the
criminal sanction essentially as one of a large number of devices by
which society protects itself against injury done to it by certain kinds of
behaviour. Its premise is that punishment, as an infliction of pain, is
unjustified unless it can be shown that more good is likely to result from
inflicting than from withholding it. The good that is thought to result
from punishing criminals is a prevention or reduction of a greater evil,
crime.”65

The criminal law consists of a body of rules prohibiting and punishing

anti-social conduct as well as certain deviant behaviour. The prohibitions
are listed in various statutes and/or specialized legislation denominated

64
Quoted in Friedmann, Law in a Changing Society, p. 192.
62 Ibid., pp. 191-192.

69
‘criminal code’ or ‘penal code’. The scope of the prohibited conduct is
deeply influenced by changing values and canons of social policy. For
example, there is the area of economic crime

“where the transition from a laissez-faire to a regulated and, in varying

degrees, publicly controlled economy has led to the condemnation and
criminality of actions which, in a system of economic individualism were
legitimate and perhaps praiseworthy. The converse is the case in the area
of sexual behaviour, where changing attitudes and social conditions have
increasingly led to the abolition of criminality for actions that were
formerly severely condemned and subject to criminal sanctions.” 66

There is also the “increasing use of the criminal sanction (often

complementary to damages and administrative sanctions)” resulting from
the

“recognition in the industrially developed nations that a massive pollution

of the environment, through despoliation of land, water and the air, by
industrial waste, chemicals, oil, the dumping of garbage, the
indiscriminate use of pesticides and by many other means, threatens the
very conditions of social survival. Thus, an area, which until very
recently, has remained outside legal regulation altogether – a concomitant
of the profit-and-consumer-oriented society – [has] become a major
object of social condemnation buttressed by criminal sanctions. Already
several countries have prohibited or severely restricted the use of DDT.
The pollution of water and air through sulphur-laden oil and motor-car
exhausts, the overheating of seas and rivers through thermal processes,
the discharge of industrial solids into rivers and lakes … [have become]
66
Ibid., p. 194.

70
threats of such magnitude to the continued supply of the basic elements of
life that the severest form of prohibition, i.e. criminal sanctions, in
addition to monetary charges, damages and administrative injunctions,
[have] become an absolute necessity.”67

Also forming part of the criminal justice system are courts which
adjudicate questions of criminal liability as well as the police force and
other enforcement agencies which exist not only to maintain law and
order but also to detect and prosecute violations against the criminal law.
Rules dealing with the whole criminal process from crime detection to
criminal disposal are contained in a criminal procedure code. There are
also prisons which handle convicted persons and reformatory schools and
borstal institutes which handle juvenile delinquents.

Arguably, anti-social conduct by man is the product of injustice in human

society. This is because there are basic injustices inherent in human
society and people are denied reasonable outlets for their energies.
Tension is therefore created and people react in a manner which society
then labels or stigmatizes as anti-social. Were injustices to be removed
from human society there would be no anti-social behaviour and the
criminal law will become redundant. Given human nature, however, the
removal of all injustices in society is an unattainable aspiration. In
justices, and therefore anti-social conduct and the criminal justice system,
are bound to remain.

However, it is not the case that no alternatives to the criminal law exist
for dealing with anti-social conduct. One alternative is non-intervention

67
Ibid., pp. 199-200

71
by the criminal law, an attitude it already adopts in the spheres of
domestic squabbles and private sexual behaviour.

“To those who consider retribution as the principal or exclusive purpose

of punishment, there can be no alternative to the criminal sanction for
offensive and prohibited conduct. But for the adherents of a utilitarian
philosophy there are alternatives. [There has been] proposed a
classification of sanctions into four categories: compensation, regulation,
punishment and treatment. Compensation involves the exaction of money
or performance to recompense an identifiable beneficiary or class of
beneficiaries for damage done or threatened by the actions of another.
Regulation embraces a constellation of devices used to bring the impact
of public authority directly to bear on private conduct, both before and
after the fact. The granting and withdrawal of licences is a prominent
example of regulation. Treatment is essentially a diagnostic response. It
implies the appraisal of socially condemned conduct as a disease rather
than a crime. A widely used form of treatment, as a sanction alternative to
punishment, is compulsory civil commitment. This raises the question of
how if at all such a measure of deprivation of deprivation of liberty
differs in anything but name from imprisonment. But there are of course
many lesser forms of treatment in response to criminal conduct. A
contemporary British sociologist [Lady Barbara Wooton] argues in
favour of a sentencing policy primarily as a prevention of crime …
Essentially ‘decisions as to the treatment of offenders should be common
administrative, instead of a judicial, matter’.”68

Another alternative is to leave the aggrieved party to seek his own

redress. Such self-help must however be lawful so as to avoid violence
68
Ibid., pp. 232-233.

72
and anarchy. Yet another alternative is censure by public opinion. Thus in
some societies deviants are treated as persons who are mentally ill and
dealt with accordingly. This is the approach of traditional African society
towards homosexuals and persons guilty of incest. It was the attitude of
the defunct Soviet Union towards ‘liberals’.

The general effect of the use of the criminal law as a means of social
control is that people are deterred from committing crimes. Even the mere
physical visibility of the police is a powerful deterrence to crime.

The civil law lays down substantive legal rules, principles and standards
which create rights and duties and specify remedies to back up those
rights. Civil courts exist to process claims for the establishment of
particular rights. Machinery also exists for the enforcement of remedies.

Alternatives exist to the use of the civil law in remedying grievances.

Firstly, if the matter at hand relates to public order, it may be dealt with
by applying the criminal law. Secondly, some disputes, such as collective
industrial conflicts, for example, are dealt with through collective
bargaining by labour and management.

Thirdly individuals sometimes provided for their own private system of

dealing with disputes. An example is the insertion by the contracting
parties of a liquidated-damages clause in a contract. Such a clause
stipulates exactly how much a defaulting party is to pay to the aggrieved
party. Sometimes too, parties might decide to deal with a given matter
solely in terms of insurance cover. For example, in the event of an
accident involving two motor vehicles, the drivers might decide to handle

73
the matter outside the court by referring it to their insurance companies
who handle it on a ‘knock-for-knock’ basis.

Further still, commercial contracts generally provide for arbitration.

Usually, but not always, this avoids adjudication by the courts.
Arbitration is not necessarily a cheap procedure though. But it has
advantages. A technical expert can be used as an arbitrator. Arbitration
procedure is secret and informal.

In many instances, the civil law leaves certain matters and transactions to
individual initiative and only intervenes to provide a framework of rules
which determine their legal validity. For example, marriage, gifts, buying
and selling, the making of a will, the formation of a club, and the creation
of leases and rights of way. At other times, however, the law intervenes
so as to ensure things like sanitation, child welfare, fair trading, and
rational use of land. It also intervenes to provide social amenities such as
schools, hospitals, roads, and social security.

More often than not, administrative regulations are used not so much to
prohibit anti-social forms of behaviour as to control wholesome activity.
Such regulations are often designed to operate preventively before a
grievance has arisen. When regulations are made they are publicized and
steps are taken to ensure compliance. Such steps usually include a system
of licensing, administrative proceedings, and civil litigation or a criminal
prosecution as a last resort.

Taxation is used not only as a means of getting revenue but also as a

means of social control. For example, in the field of direct income tax in a
pro-natalist country, single persons may be more heavily taxed than

74
married persons, and people with children may be paid child allowance
while those without children may not. The policy motive behind such a
system of taxation clearly is to encourage marriages and births.

Other forms of direct government taxation include corporate tax, land tax,
property tax, local government tax, and social insurance contributions;
while taxation on the consumption of goods and services is an example of
indirect taxation. Such taxation is often prompted by a policy of social
solidarity that calls for social equalization through wealth redistribution
by taxing the rich more heavily than the poor.

“Taxation is one of the most important weapons by which the state can
mitigate the two objectionable aspects of unrestricted private property:
firstly, the inequalities of wealth, and secondly, the power to use property
for private profit, and without regard to community purposes. In popular
consciousness the first aim still predominates. By graded taxation and
surtax on high incomes, gross inequalities of wealth are evened out more
easily than by the equalization of incomes or the abolition of private
property. But the second aspect of taxation policy is becoming
increasingly more important. On the one hand, taxation is a cheap means
by which the state finances its costly social services schemes … This
means that income and property taxes largely pay for the [social] services
of the poorer classes. To the extent that the state contributes to the cost of
national insurance the same applies. On the other hand, differential taxes
and customs duties form part of national economic planning. The import
of non-essential goods is penalized by higher duties. A purchase tax is put
on luxury goods, which are earmarked for export instead of home
consumption … The law of taxation is gradually revolutionizing private
as well as public law. The incidence of taxation will be one of the main

75
considerations determining the lawyer’s advice on the form of a
settlement or a will, or the formation of a subsidiary company. The rise of
the incorporated charitable foundation is largely a result of the incidence
of taxation on large estates. Public control of financial credit is another
means by which the state curtails privately financed capital. Low interest
rates may limit the income from private credit and other banking
transactions, but by far the more important aspect of official credit
restrictions is the curtailment of the power of private capital to influence
the national economy through the expansion or restriction of credits …
The raising or lowering of discount rates is the paramount means of
control by government banks over credit policy, and thereby, the
expansion or contraction of the economy.” 69

B. Limits of the Law

However, it is not the case that the role of law in society is without
limitations. First, the law performs only a limited social function.
Secondly, there are limitations on the effectiveness of law.

The prime objective of law is to regulate social life. It shapes behaviour

in society in conformity with the goals of those having influence within
it. Law is an instrument of social control with the purpose of achieving
social order. This it does by maintaining public order, fostering co-
operation, regulating power and reinforcing social standards. Activities
which threaten the harmonious working of society or its basic
assumptions are disapproved and suppressed.

69
Ibid., pp. 114-116.

76
However, there are whole areas of life which are unregulated by law. For
instance, the most personal parts of one’s life are really outside the law’s
domain. Law cannot give health, comfort, accommodation, or love. Even
in public activities such as economic production and politics, all the law
can do is provide a framework. Again, although the law can be used to
enforce morality, the moral standards emanate from elsewhere. Law
provides a means rather than the end.

Moreover, law cannot compel action. No one can be forced to do

anything merely by law. No law can compel any particular course of
action, even if the law is accompanied by a sanction. All that the law can
do is to try to induce someone, by order or by persuasion or by
suggestion, to a certain course of action. The inducement may take
various forms: punishment, reward, non-disapproval. A law which
forbids murder does not stop persons committing murder; it merely
punishes them if they do so, assuming the crime is detected and the
accused have no good defence. Again, a law which orders something to
be done (e.g., that people who wish to drive must have a driving licence
or that people who wish to get married must have the marriage celebrated
by the registrar of marriages) merely says that if the thing is not done
some action will be invalid, and/or an offence would have been
committed.

Even if resort is had to physical force, it cannot be said that the law has
compelled someone to do something. For example, a person who refuses
to follow a policeman to the police station on request may be physically
taken there by the policeman. But why he is in the police station is not
because of the compelling force of law but because he had been taken
there by force. Again, a person who refuses to leave a country after being

77
ordered to do so may be physically deported (i.e., dumped over the
frontier) by the police. Why he has left the country is because the police
removed him manu militaris and not because of the compelling force of
law.

The effectiveness or efficacy of a law may be measured in terms of the

degree to which people comply with it. If the purpose of the law is
preventive, its effectiveness is assessed by seeing if its application
prevents the conduct disapproved of. For example, how far does the law
against theft prevent stealing? Would a low or high conviction rate
indicate that such a law is effective? On the other hand, if the purpose of
a law is curative, that is, to remedy some deficiency or disorder, its
effectiveness is measured by the extent to which the deficiency or
disorder disappears. For example, to what extent has sexual immorality
disappeared because of the law against sexual immorality? To what
extent has corruption disappeared because of the laws against corruption?

Effective laws should do what they are designed to do. They should work.
Unfortunately, however, laws do not always work. They are not always
efficacious. A number of factors tend to limit law’s effectiveness.

One, the ascertainment of facts is a huge problem in adjudication. Thus,

the greatest problem in court is the proof of facts. This is so because in
nearly every event the court tries, with the help of witnesses, to
reconstruct that event. Strictly speaking, this is impossible because every
event is unique and no reconstruction will exactly reproduce it. The law
therefore falls back on the evidence of witnesses of what they said, saw,
heard or did as well as upon the production of objects. The danger here is
that there can easily be misunderstanding, misinterpretation,

78
misevaluation, mistaken observation, downright forgetfulness, or
deliberate lying on the part of the witness. To guard against the
unreliability of oral evidence the law places reliance on the oath and the
law on perjury. But not very many people believe in oaths nowadays, and
perjury is difficult to prove. Another way in which the law seeks to guard
against the unreliability of oral evidence is the legal requirement that
important transactions be evidenced in writing and be witnessed. But
these requirements of form can easily lead to injustice in certain cases.

Two, there are some social obligations which cannot sensibly or

practicably be enforced through law. For example, in sexual relations
between husband and wife all the law can do is deal with the
consequences of refusal. Again, the law attaches no importance to boy-
girlfriend relationship and no obligations arising there from can, as a
general rule, be enforced at law. Furthermore, although trespass to land is
actionable per se the law for common-sense reasons may refuse to award
damages if no injury was done to the land.

Three, the corporation of citizens on which many laws depend for their
efficacy is not always forthcoming. This may be because the people have
no conviction or confidence in the law. It may be because they
disapprove or are ignorant of it. It may also be because they do not want
to get involved. A high rate of non-compliance with a particular law
weakens it; the law falls into disrepute and fails in its purpose.

Four, officials may fail to properly apply or implement the law.

Resources, human and financial, may be limited and the machinery for
implementation unsuitable. The institutions charged with implementing
the law may lack zeal, motivation and effectiveness. Ineffectiveness of

79
the law may also be due to a failure to monitor its effectiveness, to lack of
reinforcement of the law (e. g., by publicity campaigns to bring the terms
of the new law to the notice of all those affected), imprecision of aim or
expression of the law, internal ambiguities of purpose, lack of motivation,
corruption, errors of judgment, and so on.

Five, there is the old problem of language and failure of communication.

Legal language is not always understood by all. This may result in
breakdown in communication. The legislator may intend one thing but
expresses it so badly that he is understood in another way. Parliament is
always passing laws. One result of legislative inflation is that the ordinary
people cannot reasonably be expected to keep pace with the plethora of
laws. In any case, laws are not always easily accessible. Although laws
are published in the Government Gazette, copies of the Gazette are not
easy to come by. Most laws remain unknown to most people, including
the educated elite. Unknown law is ineffective law.

Six, some laws are vague, obscure, uncertain, and archaic. This
sometimes makes enforcement of the law arbitrary, haphazard and
difficult. Ironically, the vaguer a criminal law is the more effective it can
be in the hands of the police as an instrument of social control. In the civil
law area, some grievances, such as intrusion on privacy, are not clearly
definable in law. Often, the loss suffered is not really measurable in
financial terms so that legal redress is a gesture rather than adequate
restitution. Contract law provides for restitutio in integrum following the
rescission of a contract between the parties. But factually it is difficult to
see how the contracting parties can be restored to their original position
as if nothing had happened since the contract was entered into.

80
Seven, a law may also fail because it is ill-suited to the particular society
in which it is passed or received. Since law operates in context and does
not exist in a vacuum, any law that disregards social facts is likely to be
disregarded by the citizens.

These limitations notwithstanding, the pervasive role of law in society as

a ‘social engineering’ tool is without question. Berman & Greiner
identify four key encompassing processes of law 70. They see law as a
process of disputes resolution: the law stipulates the competence and
jurisdiction of courts; it lays down rules governing pre-trial criminal and
civil procedures as well as trial procedures. The law is also seen as a
process of maintaining what they call ‘historical continuity and doctrinal
consistency’.

This point is illustrated with examples from manufacturers’ liability in

tort, a liability established/extended by the courts through reasoning by
analogy of precedent, doctrine and statute. Law is further conceived as a
planning process, and also as a process of protecting and facilitating
voluntary arrangements. This is peculiarly the province of contract law.
Finally, law is sees as a process of resolving acute social conflicts.
Labour law and human rights law are given as illustrative examples.

70
HJ Berman & WR Greiner, The Nature and Functions of Law, Foundation Press,
New York, 1980.

81
 Chapter Three

The Judiciary: Authoritative Law Interpreters and Officious Deputy

Lawmakers

The Realists were the first to focus attention on the courts as a proper
subject of serious jurisprudential inquiry. Since then, jurists have become
interested in the legal internal workings or decision-making activity of
courts. In particular, in his analysis of ‘hard cases’, judicial discretion and
interpretation, R Dworkin centred adjudication in legal discourse.

Traditional legal theory regards judges as ‘high-priests of the law’ and the
judicial function as confined to merely declaring the law already there.
The task of the judge is conceived as simply that of distilling judgment
from the law, like the distilling of whisky, for example, from malted
grain. The judge creates no new law but only declares fresh applications
of the rules already in existence, just like the whisky distiller does not
create any new malted grain but simply puts the existing grain into fresh
use. Despite judicial moulding of the law from time to time to meet
changed social circumstances, the hieratic tradition continues to be
affirmed that the judge is not to make new law but to apply the law as it
is.

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Judges are part of society’s legal order in which human conduct is
governed by rules. They are instituted as one of the ways in which society
resolves conflicts. They are expected to make rational decisions in
ironing trouble cases that are taken to them. This paradigm of rational
decisions means a decision reached according to rules, principles or
standards. Ad hoc decision-making is deprecated. Judges must conform
to established rules. Even when there is no rule or when an existing rule
is expressed in an open-ended way directing the judge to do what is ‘fair’
or ‘reasonable’ or ‘just and equitable’, there must be satisfied the
requirement of formal justice which demands that like cases be given like
treatment.

Section 1 The Judiciary: High-priests of the Law

Law is necessarily expressed in ordinary language. Language, it is said, is

not an instrument of mathematical precision. It possesses an ‘open
texture’; a ‘core of certainty and a penumbra of uncertainty’.

“Legal rules, ideas, and concepts are expressed in words, whose uncertain
sphere of operating precludes the statement of legal reasoning in the rigid
defined terms by which conclusions may be logically deduced from stated

83
premises … Legal rules and concepts depend for their usefulness on their
very indefiniteness and flexibility … [and] as Holmes remarked … ‘the
life of the law has been not logic but experience’ … Some part of the
meaning of words is given by ordinary usage, but this does not carry one
far in those peripheral problems which law courts have to solve in
applying words, and legal rules expressed in words … Rules of law are
not linguistic or logical rules but to a great extent rules for deciding.” 71

A. Legal Reasoning

To reason means to talk, to argue persuasively or to think in a connected,

sensible or logical manner. Legal reasoning involves all three in the
context of making law, administering the law, arguing cases in court,
deciding cases and negotiating legal transactions.

Broadly speaking, legal reasoning follows a pattern similar to that of

everyday life; save that the lawyer engages in a more searching inquiry
for precise reasons for his decisions. The human mind feels a natural
disposition towards treating like cases alike. That is why practical
reasoning makes frequent use of analogy and is primarily concerned with
weighing various considerations and supporting conclusions with reasons.
Since law is a practical science dealing with everyday problems, legal
reasoning leans heavily on argument by analogy and, to a lesser degree
on other types of logic such as the logic of induction, the logic of
deduction (syllogism), and the logic of justification.

71
Freeman, Lloyd’s Introduction to Jurisprudence, op. cit., pp.1406-1407.

84
Human beings do reason by analogy. They find this a useful and efficient
way of arriving at normative or practical decisions. Reasoning by analogy
is where the reasoning proceeds case-by-case and by means of contrasting
examples, first one way and then another to see which way one’s
argument is swayed. This type of reasoning is very popular in the
common law system because of the desire for certainty in the law. But the
method of philosophy or logical progression in legal reasoning does not
involve logical deduction in the strict sense but the rational use of
analogy, whereby a case is compared with like and unlike, so as to
determine the proper scope of a legal rule. In law, analogical logic is an
appeal to precedent.

Indeed, when it comes to decisions on points of law, there exists in most

municipal legal systems a very large apparatus of previously decided and
recorded cases with the reasons for those decisions systematically set out
in the court’s records. These cases may not always provide a ready-made
answer to the problem that the court is now faced with. But they often
provide clues as to what considerations need to be taken into account and
the type of solution which are available.

In examining these earlier cases lawyers will pay close regard to the
analogies that may not present a solution to the case with which the court
is now concerned. In inviting the court to weigh these analogies those
arguing the case on behalf of the different parties will seek to work out
the implications of treating like cases alike if these analogies are accepted
or rejected. The object of such advocacy may be, for instance, to show
that if a certain analogy is accepted it would lead to unfortunate

85
consequences in other cases not easily or rationally distinguishable from
the present case.

Legal reasoning or the process of judicial decision is either of the

inductive or the deductive type. The logic of induction, characteristic of
the Common Law system, involves the movement from the particular to
the general. In the search for the general rule applicable to the particular
case at hand, the inductive method does not conceive the rule as being
applicable directly by simple deduction. The inductive method works
forward from the particular to the general. It involves the search for the
master principle or rule of law in the learning and dialectic which have
been applied to particular facts.

In the Common Law system the judge is always reasoning inductively,

and in the process he is said to be bound by decisions of courts higher
than his own. In one sense, previous decisions or precedents are helpful
only as illustrations of a general proposition; in another sense, precedents
are the very soil from which the general proposition must be mined. The
use of decided cases involves induction. The basic technique is argument
by analogy, that is to say, treating like cases as like. And, as practice
shows, it is this that makes judicial reasoning inseparable from any
efficient administration of justice.

Counsel also marshals his arguments by the inductive principle to a

relevant rule. The process from the beginning to the end is one of logical
development.

“Any material of logical relevancy, whether it be ‘legal’ or ‘historical’ or

‘literary’, is legitimate and germane. Doubtless the best possible

86
instrument of demonstration is the exact analogy of a previous case. But
analogies are seldom exact, and counsel is rarely fortunate enough to be
able to checkmate, so to speak, in one move. Almost invariably he has to
justify or amplify his analogy from other sources, and it matters not what
those sources are provided that they are material to his main purpose. If
he betakes himself to the opinions of reputable writers, to decisions of
other countries, to history, to common sense, to natural justice, to
convenience and utility, to the etymology and interpretation of words, he
will never be stopped by the courts because the sources from which he is
drawing are not ‘legal’. He ceases to convince only when his argument,
whatever its source, is beside the main point. This is true of a legal
argument as of any other kind of argument; and a legal argument is not
governed by any peculiar magic of its own. Lawyers do not possess, and
do not claim to possess, a monopoly of the art of dialectic. They have to
deal in argument more frequently than other people, and they naturally
develop a special facility in doing so, but the principles of reason and
logic upon which their arguments are based are the common property of
mankind. The only reason why, precedent figures so largely in the
method which they employ is because the analogy of precedent is a
forcible method of demonstration in any and every argument. Parity of
reasoning is as natural to logic as reasoning itself. It is more convincing
than most other methods of demonstration simply because a close
analogy is more convincing than a far-fetched illustration. Consequently
the pleader relies on precedents as the most convincing arguments he can
adduce, and the judge, with faculties specially trained to this end,
becomes adept at distinguishing between the stronger and the weaker of
the analogies presented to him.” 72

72
Allen, op. cit., pp.285-286.

87
Treating like cases as like often, at some stage, involves a consequential
inductive movement from particular instances to a more generalized
formulation. For example:

Facts of case A are decided Y.

Facts of case B are decided Y.
Therefore, strictly speaking, only Facts A and B should be decided Y.

Deductive or syllogistic reasoning is associated mainly with the Civil

Law system. This type of reasoning assumes that the legal rule applicable
to any particular case is fixed and certain from the beginning. All that is
required of the judge is to apply this rule as justice-according-to-law
demands, without reference to his own personal view. The judge deduces
his decision directly from general to particular; that is, from the general
legal rule to the particular circumstances before him. He draws from the
stable, abstract and general principles or propositions formulated in the
relevant code. He is not necessarily influenced by the deductions or
interpretations of other courts, be they so high.

“It follows that no individual decisions contain any future authority in

themselves. They are not, however, without value and it is not part of the
judge’s duty to ignore them. It has never been claimed, even in the most
rigid codified systems, that the judge should shut his mind to the
reasoning of others in like circumstances. No intelligent system would so
crudely paralyse the indispensable instruments of analogy and parity of
reasoning. Hence in all systems some degree of judicial uniformity is
certain to exist and even to be applauded. But great care is taken to ‘save’

88
the fundamental rule that uniformity, however convenient, shall not
degenerate into a line of least resistance; it must remain a guide, and
never become a tyrant.”73

Deductive logic is a syllogistic form of argument and is often rejected as

the prototype of legal reasoning. But this does not mean that law does not
use deductive reasoning. Still, deductive logic is often rejected because
rational persuasion does not proceed by a chain of deduction or
demonstrative reasoning. It is rather a question of presenting a succession
of cumulative reasons which severally co-operate in favour of saying
what the person persuading desires to urge.

The syllogism goes for example like this:

All animals have four legs. (Major premise)

X is an animal. (Minor premise)
Therefore, X has four legs. (Conclusion)

Again:

Whoever causes another’s death shall be punished with imprisonment for

life.
X has caused the death of Y.
Therefore X shall be punished with imprisonment for life.

In a legal argument the syllogism takes the following form:

73
Ibid., pp.161-162.

89
Facts of Type A are governed by Rule B.
Facts of the present case are of Type A.
Therefore the facts of the present case are governed by Rule B.

A syllogism can only make explicit that which is implicit in the premises.
It neither creates nor reveals anything new. With reference to the judicial
decision this gives rise to the idea that the result is deducible from a rule
which is already ‘there’.

In reality, however, law need not use deductive logic at all. Moreover,
there are at least three reasons why deductive logic often cannot easily be
used. In the first place, the major premise is not given but has to be
chosen. Where the chosen major premise is a clearly expressed statutory
rule or a well established case-law rule and principle, then deductive
reasoning becomes relevant. Otherwise, it becomes irrelevant. This is so
because whereas a statutory provision may be reasonably straightforward,
the formulation of a case-law rule or principle may be doubtful.
Secondly, the minor premise rests on perception, probability and
description. This involves interpretation and evaluation. Thirdly, a legal
decision involves an act of will. Ultimately it is the judge’s decision
primarily in the light of the facts and the law, although other variables
such as policy considerations do sometimes play a part.

Another form of reasoning is the logic of justification. In this form of

logic, the judge reaches a provisional conclusion and then finds authority
or argument to support it. The provisional conclusion may be the result of
his trained instinct (what Americans call a ‘hunch’), or his opinion as to
the merit of the dispute. And then he interprets or manipulates his
authorities so as to justify that conclusion. Another ploy in the logic of

90
justification is for the judge to set out one line of argument leading to a
certain conclusion, and then to set out an entirely different line of
argument also leading to the same conclusion.

Arguments of inversion, a fortiori, and ad absurdum are also methods of

reasoning sometimes encountered in law. They are variants of the
deductive and inductive methods.

The inversion method of argument goes like this:

If A then B. (Premise)
Therefore, if not A then not B. (Conclusion)

This kind of logical argument is dangerous and can easily be fallacious.

The argument will be fallacious if a term in the premise is used in a
particular sense and in the conclusion the same term is treated in a
general sense. As inversion arguments are sometimes used in law, one
must be on one’s guard against fallacy. The a fortiori method of
argument is more common than the inversion. This kind of logic may be
expressed thus: If something is prohibited (or allowed) then it is assumed
that anything more obvious is prohibited (or allowed). For example, it is
forbidden to walk across the lawn; a fortiori it is forbidden to drive across
it. Another example: persons with a Bachelor of Laws degree qualify for
recruitment; a fortiori persons with a Master of Laws degree qualify for
recruitment.

Arguments ad absurdum are often expressed in deductive form. The aim

is to make the conclusion of another’s argument demonstrate an

91
absurdity. For example: “If you say that, the logical conclusion of your
argument is X and surely that is not so.” There is no such thing as a
logical absurdity, only logical contradiction and invalidity. Legal
arguments ad absurdum are, therefore, rhetorical rather than logical
devices unless they expose a contradiction in another’s argument. Logic
is concerned with formal validity of argumentation, not with truth and
justice. Law, however, is interested in truth and primarily concerned with
justice.

Lawyers, like other professional groups, tend to create within ordinary

language a certain esoteric jargon of their own. They do this so as to
attain a greater degree of precision and definition than is needful in
ordinary life. Moreover, lawyers are persons skilled in the art of
assembling arguments and presenting them in their most persuasive form.
Counsels represent the interests and points of view of their clients. The
judge on the other hand seeks to arrive at a reasoned decision, that is to
say, to rationalize and justify his decision.

The principal rhetorical device used in law is the appeal to ‘authority’ –

statute, case law, some immanent principle of law, or some established
learned work. Advocates and judges both use this device. In the common
law system the appeal to ‘authority’ is an appeal to the previous decisions
of the courts and to legislation. In civil law jurisdictions it is primarily an
appeal to the codes, other legislation, and the writings of jurists (what the
French call ‘la doctrine’).

92
 B. Legal Decisions

A legal decision involves an act of will. It is a decision, by a person

invested with the judicial function, taken in a court of law and in a given
matter, based on the facts of the case and in accordance with the law. The
decision of the court concerns only the particular case in hand and only
binds the parties to that case.

A legal decision is not an impersonal and abstract ruling but a decision

taken in a concrete case and concerning actual persons. The decision in
the case is not a rule imposed for the future conduct of everyone. It is a
value judgment, a legal pronouncement on the past conduct of one or
more persons. Judicial decisions in their nature have to pronounce on the
legality of conduct after it has taken place. Legal rulings are however not
statements of facts or logical inferences. As such they “cannot be treated
as in themselves true or false, for such a criterion is inapplicable to
decisions involving choice between alternatives. They can however be
properly regarded as right or wrong, or good or bad, in the sense that they
either are or are not based upon cumulated reasons which are found to be
acceptable.”74.

The judge’s decision is given in the form of a structure of logic, in which

he may use any material which he considers ad rem.

“If the matter is governed by the clear and unambiguous provision of a

statute, his task is simplified. In a great many cases, no statute is
74
Freeman, op. cit., p.1408.

93
applicable, and even if it is applicable, it is frequently the reverse of clear
and unambiguous. The judge must then proceed … either by parity of
reasoning … or by the use of examples … or by rules of natural reason
and discretion … The method of his reasoning may take innumerable
forms, and no rule of law limits and controls those forms, provided that
they achieve a logical conclusion.”75

Often a court decision is nothing other than the application of legal rules
to a given set of facts. In which case, the judicial decision in question is
based wholly on legal rules. But not all court decisions are based on
strictly legal rules. Other variables such as equity, public policy,
principles and standards come into play.

When the judge sits in judgment he must discover which legal rule among
those in existence is relevant to the case before him and to apply it to that
case. In theory this means the legal rules are always there waiting to be
applied and that the judge does not make law but merely declares it.

That judges never make law but only declare or interpret it, is today a
veritable myth. Judges do ‘make law’. If there is no existing rule of law to
cover a particular case before the judge, he ‘creates’ one although he
pretends to be merely applying or interpreting the law. The judge cannot
decline to resolve the matter properly before him by pleading non liquet
or that it is not covered by any law; he must ‘find’ the law. More usually,
the judge narrows or extends, or otherwise modifies some existing rule so
as to provide a ‘proper’ solution to the case before him.

75
Allen, op. cit., pp.286-287.

94
Even when judges are patently making new law by their decisions they
tend to shun too open an avowal of what they are doing. The reason for
this is not a desire for mystification. It is rather that they want to preserve
the independence of the judiciary and do want to be accused of usurping
the functions of the legislature. It is for this reason that judges play down
the element of conscious choice in decisions and present their reasoning
in the form of logical deductions from well-established rules.

Variables other than strictly legal rules influence judicial decision-

making. These often include equity, principles, standards and public
policy. Generally, equity means ideal justice, a kind of natural law. In
common law jurisdictions, equity is a ‘flexible’ branch of the law and is
often contrasted with the rigidity of the common law. Because equity is
flexible it can always be invoked to do justice in a particular case.
Sometimes the rigidity of the common law may lead to harshness and
injustice in a particular case. To do justice in such a case the judge would
have recourse to equity and apply the relevant rule of law only partially
or ignore it completely. Again, between two divergent interpretations of
the law, the judge would lean not towards the interpretation that is more
exact but towards that which would yield an equitable result in the
particular case.

Sometimes also legal values, standards and principles influence the

judge’s decision. For example, legal values such as ‘justice’, the rule of
law, and the freedom of the individual; or principles such as “no man
shall profit from his own wrong”, “no man shall be condemned without
being heard”, or standards such as international law standards, and so on.

95
Occasionally too, courts use the concept of ‘public policy’ (known in
France as ‘moralité et l’ordre public’). Public policy has been described
variously as “a very unruly horse which may carry its rider he knows not
where” or as “a very unstable and dangerous foundation on which to
build until made safe by decision.” Judges do remind themselves of this
warning but occasionally find it expedient to ground their decisions in
public policy. Thus, public policy is sometimes used as a means of
relieving the court of the duty to enforce contracts which are formally
valid but which strongly offend the court’s sense of morality or justice,
while not involving any actual illegality. The doctrine is also applied to
strike down agreements involving sexual immorality and agreements in
undue restraint of trade.

C. Legal Hermeneutics

Montesquieu’s theory of the separation of powers has the inestimable

advantage of ensuring a measure of checks and balances in the exercise of
power within the state. However, separation of powers does not
completely remove the lurking danger of a tyrannous unelected body such
as the judiciary. The judiciary is an institution essentially removed from
the democratic process. It is not elected and so lacks popular legitimacy.
That notwithstanding,

“In a constitutional democracy the judiciary occupies centre stage as the

interpreter and guardian of the constitution and other laws. Its primacy in
this regard is unquestionable. As an acknowledged agent of social change
the judiciary may become ‘activists’. Moreover, its interpretative and

96
creative functions are essentially unchecked. There is apparently no
watch over the watchman. It is from these considerations that the idea of
an ‘imperial judiciary’ has arisen. And the judiciary is considered all the
more ‘imperial’ because of the peculiar mystery or mystique (at least to
the uninformed) that surrounds especially the superior courts: the secrecy
of court deliberations, the esoteric nature of legal language, the awesome
nature of court trappings …, and the vestiges of antique veneration that
are still connected with Anglo-American magistracy and law.” 76

It seems therefore necessary to fetter the judiciary so as to ensure that it

upholds the constitution and other laws and that it does not through the
thin disguise of judicial interpretation subvert the law, and becomes a
threat to the constitution.

The time-honoured technique of constraining the judiciary is the

insistence that judges adhere to certain theories of interpretation of the
law. There are three competing theories, that of ‘original intent’, that of
‘neutral principles’ and that of ‘the constitution as a dynamic instrument’.
The first interpretative theory requires the judge to stick to the norms
distinctly stated in the constitution; the second demands that the judge
operates under neutral principles and applies them consistently to all
similar cases; and the third directs the judge to consider the constitution
as a dynamic document which changes with time and yet retains its
fundamental character.

The insistence that judges stick to certain interpretative theories gave rise
to two concepts: the concept of ‘law as interpretation’ and the concept of

76
C Anyangwe, ‘Parliamentary Democracy and Constitutional Democracy,’ 31
Zambia Law Journal 1999, p.94 at p.103.

97
‘law as literature’. In America, both concepts generated interest in a
hermeneutic analysis of legal decision-making, that is to say, a trend
towards hermeneutic and linguistic theory --- a theory of interpretation
and linguistic forms.

“The word ‘hermeneutics’ is taken from Hermes, the name of the

messenger of the gods in Greek mythology. Zeus appointed Hermes as
his herald, and so he came to be the messenger not only between Zeus
and other gods, but between the gods and man; thus a mediator became
the divine and the secular. His name thus has come to be associated with
understanding and interpretation of messages.”77

Hermeneutics regards history as a continuous process whereby the

transmission and interpretation of cultural meaning and legal traditions
passes from one historical age to another. This faith in the continuity of
human history is the reasoning behind the idea that cultural meaning may
be accurately transmitted from generation to generation. Our links with
the past are, Berk points out, what give neutrality to interpretation, and it
is by looking at what we share with our past that makes it ours and
permits an interpretative understanding78.

It had been the central thesis of philosophers of phenomenology and

language that the human sciences are ‘interpretative endeavours’. This
contention is echoed in hermeneutics’ renewed interest in the historical
and cultural context of social phenomena. Legal scholars now
acknowledge that indeed cultural context influences perceptions and the

77
Van Blerk, op. cit., p.218.
78
Blerk, pp. 218, 219.

98
meanings and certainty given to words. “The languages unique to the
societies which use them constitute unique worlds for those societies and
should not be seen as interchangeable worlds with different names for the
same things.”79

Now, law has traditionally been considered to be the science of deriving

meaning from words. Put in another way, the meaning conveyed by
words is not determinate but indeterminate, and what the law does is to
derive meaning from words used. If then meaning is indeterminate it
follows that the possibility of objective adjudication consistently with the
rule of law is undermined and thereby also the legitimacy of adjudication.
It is however doubtful that interpretation can be reduced to a mere
exercise of power wherein legal texts are manipulated for political ends.
Human life must certainly be much more than ‘self interpretation’.

The positivist thesis is that interpretation is hardly necessary because the

meaning embedded in the text of the law is made apparent upon reading
it, in other words, there exists in every text of the law an ‘inner essence’
ascertainable by simply reading the document.

On the other hand, hermeneutic scholars espouse the subjective view that
the text of the law has multiple meanings, or in fact no meaning, leaving
the reader at liberty to interpret the text subjectively or even in a partisan
manner. However, this does not mean that legal hermeneutics gives the
reader free rein in interpreting the text. It constrains him in a number of
ways. While it is the case that there is no ‘objective meaning’ of the text
for the interpreter to find, nevertheless it is equally the case that he is not

79
Ibid., p.219.

99
allowed to indulge in interpretative invention. Biased interpretation is
constrained by institutional conventions or context, by the tradition and
context (cultural, historical and political) in which any text is interpreted,
and by the institutional history of the community. These constraints
operate to secure the measure of objectivity required by the rule of law.

However, “deconstructivists accuse the traditional hermeneutic approach

of artificially creating a cultural tradition that reflects a cohesive world of
meaning and value ‘separated from social relations of domination and
power’”80. Jurgen Habermas thus argues that

“Language is also a medium of domination and social force. It serves to

legitimate relations of organised power … [T]o hypostatise language in
the manner of linguistic and hermeneutic philosophy, is to fall into the
conservative clutches of a naïve and submissive idealism.” 81

Deconstructivists 82 argue that hermeneutic scholars are in error in

presenting interpretation as a homogenous activity. They maintain that

80
Ibid., p.226.
81
Quoted in Blerk, p.227.
82
On the meaning of ‘deconstruction’, Van Blerk explains (at p.225): “The term
‘deconstruction’ was coined by Jacques Derrida, the French philosopher, to describe
the strategy of exposing internal inconsistencies and contradictions in discourse …
When applied to law, deconstruction sets about revealing how the inner contradictions
of a legal culture serve to undermine the main assumptions of that culture.
Deconstruction makes use of literary theory in order to open up the text and ‘reveal
both what it contains and what it blocks or excludes’. Deconstruction suggests a
political stance, and indeed it is this political concern of deconstruction, rather than its
interpretative strategy, which gives it its radical edge. As a politics, deconstruction
entails the postmodern concern with European Enlightenment’s concentration on
universal norms or truths and its conception of the privileged position of law. As such,
deconstruction wishes to decentre such centrality; it is sensitive to the otherness of
others and the ways in which society disallows that otherness, and … most
importantly, it wishes to displace and decentre the liberal view of the sovereign
subject as an autonomous self-sufficient entity. These political concerns are reflected

100
contrary to the thesis canvassed by positivists, human nature is a social
and cultural construct which varies from society to society. Modern
anthropology, they point out, casts doubts upon the conviction that man
has an immutable human nature. Human nature has never existed and
cannot exist untouched by local custom. The characteristics attributed to
human nature by a culture

“will reflect its geography of power and promote the dominance of those
who hold that power. Thus, the history and linguistic expression of what
is characteristically human in our society has been based upon the male
person. The law has, moreover, in other subtle ways used language to
portray the human agent as neutral, objective and universal.” 83

Thus, Balkin, a leading deconstructivist, posits that the history of ideas is

not the history of individual conceptions, but of favoured conceptions
held in opposition to disfavoured conceptions 84. Legal interpretations, he
argues, may be used to promote domination and maintain the inequalities
of the status quo. It is his considered view that judges are ‘socially
situated’ individuals who interpret the law for a particular purpose and
bring a particular set of sociological and ideological pre-dispositions to
their acts of understanding.

The science of legal interpretation has ordinarily been regarded as the

function of the ‘jurist’ or ‘jurisconsult’. The use of that term is usually not
confined to learned writers upon legal topics but as a general term

in the dominant ideology of liberalism. Deconstruction is often described as post-

structuralist because it involves ‘a displacement’, a dismantling of ‘stable conceptions
of meaning, subjectivity and identity.”
83
Blerk, p.228.
84
JM Balkin, ‘Deconstructive Practice and Legal Theory’ (1987) 96 Yale Law
Journal 743.

101
referring to a class of persons learned in the law (legal expert, legal
writer, judge, academic lawyer, legal practitioner in private practice or
government service). The broad sense in which ‘jurist’ is used is
adequately captured by the German term Juristenrecht which expression,
historically, was not confined to the legal writer, but included all those
whose special function was to expound and apply customary law, to
‘lucubrate the amassed wisdom of the law’ 85.

As the legal interpreter, the Juristenrecht was a member of a class of

person ‘learned in the law’ (Rechtskundige). But he was not a source of
the law; he remained a representative of the people and thus a mere
conduit-pipe. It was not his business to add anything of his own to the
custom he expounded. He had no pouvoir prétorien and thus was not a
craftsman of the law. This limitation imposed on the Juristenrecht
ignored or denied the creative force of the legal interpreter. This was
unrealistic. For the perpetual process of interpretation inevitably
produced an equally active metabolism in the subject-matter of custom or
usage.

D. Justiciability

Justiciability relates to the issue as to whether a dispute or matter is

amenable to resolution by a court of law. It depends on the existence of
amenable rules and standards. One aim of law is to secure social order.
Laws enable society to function peacefully, orderly, smoothly and

85
CK Allen, Law in the Making, Clarendon Press, Oxford, 1964. p.113.

102
efficiently. Judges are instituted to resolve conflicts in a rational way by
applying ‘the law’.

However, not all controversies in society are amenable to judicial

settlement. Some are justiciable: they are matters in respect of which the
court, when moved, has jurisdiction to hear and determine. The court’s
jurisdiction is conferred by law, including the court’s inherent
jurisdiction, as when the court punishes ‘contempt of court’ in exercise of
its inherent powers to maintain court order and the integrity of its
proceedings.

Other disputes are not justiciable. A dispute may be non-justiciable either

because the court has not been conferred jurisdiction to hear and
determine it (the court cannot usurp a jurisdiction which is not given), or
because the matter is inherently non-justiciable (for example, those
particular areas of social activity that cannot reasonably be made
amenable to the judicial process), or because of some critical procedural
hurdle (for example, the matter may be moot or premature; or the party
may lack locus standi, capacity, or sufficient interest to approach the
court), or because a justiciable issue does not exist, or because the matter
is one which, as a matter of policy, it would be impolitic or inexpedient
for the court to take jurisdiction (for example, matters falling within the
so-called ‘political question’ doctrine).

A matter may be justiciable and yet not governed by established or

ascertainable rules of law. In such a case the judge would have no choice
but to ‘legislate’ by appealing to some appropriate principle (e.g., the
principle of natural justice) or some acceptable standard (e.g.,
international law standard) so as to render justice in the particular case. A

103
matter may be justiciable, and yet not appropriate for adjudication, for
example, because it is a ‘polycentric dispute’, that is to say, a dispute
involving “a multiplicity of variable and interlocking factors, decision on
each of which presupposes decisions on all the others.” 86 A major
difficulty in the way of making polycentric disputes amenable to
adjudication is the problem of representation of all the interests involved.

E. Precedent and Stare Decisis

The judicial practice of following relevant past court decisions partakes

of that part of man’s imitative action based on rationality. Man has the
tenacious habit of following the ‘beaten path’. G Tarde called this
imitative faculty in man ‘the laws of imitation’ (‘les lois de l’imitation’).
To Tarde, imitation is one of the primary laws of nature, one of the
necessary inherent principles by which a society perpetuates itself. “La
société, c’est l’imitation,” Tarde concluded. Walter Bagehot called this
imitative faculty in man the ‘mimicry theory’. In his The English
Constitution Bagehot posits that the actual voluntary part of a man is
“economized by a sleepy kind of habit” and that the “traditional part of
human nature is, ex vi termini, most easily impressed and acted on by that
which is handed down.” 87

The judicial practice of following what has already been laid down by
other judges is certainly worth the effort and the comfort. It is at least a
guarantee of security. It is based upon the notion of parity of reasoning

86
Stone, cited in Freeman, p.1379.
87
Cited in Allen, op. cit., p.102.

104
and upon the reasonable expectation without which social relations
become anarchical, and judicial decisions become erratic and
unpredictable.

“To follow past decisions is a natural and indeed a necessary procedure in

our everyday affairs. To take the same course as has been taken
previously, or has usually been adopted in the past, not only confers the
advantage of accumulated experience of the past but also saves the effort
of having to think out a problem anew each time it arises. Accordingly, in
almost any form of organization, precedents have to be established as
guides to future conduct, and this applies not merely to legal systems but
to all rule or norm-creating bodies, whether clubs, government
departments, schools, business firms or churches. There is, however, an
inevitable danger that this tendency to follow past precedents may lead to
stereotyped procedures and stultify progress, and much of the working
success of any organization may depend on its ability to apply precedents
creatively.”88

Precedent is thus a common judicial practice in all legal systems. Since

codification is the hallmark of civil law systems, the fabric of the law in
that system is regarded as primarily statutory, supplemented by a great
body of extrajudicial and extra-legislative learning in the form of great
commentaries on the codes. The task of the judge is theoretically limited
to mechanically applying the provisions of the code; for, in Civil Law
jurisdictions, the judge is merely, in Montesquieu’s words, “la bouche qui
pronounce les paroles de la loi” - the mouth that pronounces the words
of the law.

88
Freeman, op. cit., p. 1380.

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In the contemporary period, however, the judicial role in a civil law
country like France is now apprehended, due to the influence of the
French natural law jurist François Gény, in terms of “la libre recherche
scientifique” which constantly adapts formulated rules to changing social
needs. This is a more liberal and elastic judicial technique than has been
orthodox in that country. The creative function of the French judiciary is
thus conceded: judges increasingly follow ‘la jurisprudence’, especially
‘la jurisprudence constante’ and ‘les arrêt de principe’ of the Cour de
Cassation89. In fact, a very important branch of French law, ‘le droit
adminsitratif’ is essentially a judge-made law, based as it is on the case-
law of the highest administrative tribunal of the land, le Conseil d’Etat.

Although precedents even of superior courts are not recognized as

automatically binding, as is the case with the common law system of
precedent known as stare decisis, they nevertheless enjoy ‘une autorité
privilégiée’; and the ‘jurisprudence constante’ of the Cour de Cassation
is to all intents and purposes regarded as authoritative for the future and
rarely departed from.

In France, the prominent role accorded to ‘la doctrine’90 has been

necessitated by the rather limited scope and the standardized format of
court decisions; what Allen describes as “the Gallic genius [of] a
meticulously constructed piece of logic – a pared and polished judicial
syllogism”91. Court judgments in that country usually consist of a very
pithy enunciation of the reasons for the decision, embodied in “a series of

89
This is France’s Supreme Court in non-administrative cases. The Conseil d’Etat is
the Supreme Court in administrative cases.
90
That is, juristic opinions in treaties and learned annotations appended to reported
cases, including, one may add, the ‘conclusions’ of the ‘Procureur Général’ and the
‘Juge Rapporteur’.
91
At p. 180.

106
staccato sentences, each prefaced by the words ‘attendu que’ … without
any citation or discussion of authorities.” 92 To fully understand a case
therefore one must read the ‘conclusions’, the ‘rapports’ and the
‘observations’ appended to the ‘arrêt (judgment) as annotations.

In common law jurisdictions only a very subordinate role is accorded to

juristic writings (as against court decisions) in the exposition of the law.
Judicial decisions are emphasized as the core of the legal system. These
decisions are elaborately written with citation and discussion of
authorities, and are reported in the ‘law reports’. Law reporting is very
critical in the common law system. This is so because a precedent is not a
precedent unless it is accurately reported.

More importantly, a key characteristic of the common law system is the

treatment of judicial decisions as binding themselves on future courts –
what is known as the doctrine of stare decisis. That doctrine ordains that
decisions of superior courts are binding on lower courts, even if the
decisions are deemed wrong. A decision of a lower court can only
persuade, but not bind its superior. Courts of co-ordinate jurisdiction are
not bound by each other’s decisions. The Supreme Court is bound by its
own decision, although there has now been effected, through the
technique of distinguishing and the per incuriam rule, a considerable
mitigation of that rule. Indeed, a lower court may, by deploying the
technique of distinguishing, decline to follow an earlier case that is
regarded with disfavour.

Distinguishing the case at hand (on the material facts and circumstances,
and on the scope and limits of the past precedent) from the previous one
92
Freeman, p.1386.

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decided by the higher court releases the judge from the tyrannical
command of stare decisis requiring him to follow the relevant decision of
a higher court governing the case at hand.

The technique of distinguishing a case, and that of overruling a principle

or rule of law enunciated in a past precedent, affords a certain room for
manouevre, without which the legal system would be rigid, static, and
unworkable. Anciently, the old plea of non est simile (not similar) made
at the bar whenever an authority was cited by the adverse party had the
same effect as distinguishing.

The judicial practice of following precedent is a rational imitative habit.

The rationality is grounded on two considerations: the universal sense of
justice that all men are to be treated alike in like circumstances; and the
‘inherent’ authority of the precedent court to promulgate a general rule
binding on lower courts, and upon which actors can justifiably rely.
Precedents are employed in order to establish principles.

In applying the law principles are primary and precedents are secondary;
in other words, principle is the master, and precedent the servant.
Precedents are employed to discover principles, and principles are
employed to discover justice; for, we speak of the judge’s function as that
of administering justice, asserting thereby that techniques of legal science
exist to do justice between litigants, including moral justice.

The many permutations and combinations of circumstances that exist in

social life impose a constant process of expansion and adaptation of the
law.

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“Since the First World War the tempo of social change has accelerated
beyond all imagination. With it the challenge to the law has become more
powerful and urgent … Many years ago, leading jurists and judges
concurred that it was not only right but the duty of the judge to take note
of fundamental changes in public opinion. Indeed, it is almost certain that
the common law would no longer exist if great judges had not from time
to time accepted the challenge and boldly laid down new principles to
meet new social problems. The decisions which reflect such judicial
revolutions are relatively few in number, but they stand out as landmarks.
Every one of them symbolizes a new social epoch and has laid the
foundations on which hundreds of elaborations or routine decisions can
be built up.”93

Thus, changed social circumstances94, and changes and developments in

human knowledge may greatly affect the application of precedent. For
example, the judge may decline to follow earlier cases that were based on
imperfect scientific knowledge. A noted shortcoming of precedent is that
it tends to make the development of the law dependent on accidents of
litigation.

Section 2 The Judiciary: Defensores Fideis or ‘Deputy Legislators’?

The activity of the court, previously overlook, has since come under
microscopic examination by jurisprudents. “Among judges and jurists,”

93
Friedmann, pp. 47-48.
94
For example, same-sex marriage is bound to change the traditional legal definition
of marriage as an institution involving man and woman.

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Allen says, “some are conservative and reactionary, some are innovating
and long-sighted, some narrow, others liberal.”95 Conservative judges are
those who espouse a restrictive and somewhat old fashioned view of
judicial restraint; a conception in line with the Baconian admonition that
the office of the judge is jus dicere and not jus dare – to interpret and not
to make law; to interpret the law as it is, not as it ought to be.

A. The Judiciary as Conservatives

This view of the judicial function denies the judge creativity or initiative
and inexorably leads to judicial passivity where even a minimum activism
may be said to be called for. Yet it is a view to which many famous
judges have subscribed as being consistent with the taught tradition of the
law. Take for example, the eloquent words of caution of the great
American judge, Mr. Justice Cardozo:

“The judge, even when he is free, he is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant, roaming at will in pursuit
of his own ideal of beauty or of goodness. He is to draw his inspiration
from consecrated principles. He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and
subordinate to ‘the primordial necessity of order in the social life.’” 96

95
At p. 119.
96
Quoted by Y Vyas, ‘The Independence of the Judiciary: A Third World
Perspective,’ Third World Legal Studies, 1992, p. 138.

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In England, Lord Simonds counselled against judicial filling in of gaps in
statutes, arguing that to do so would be tantamount to “a naked
usurpation of the legislative function under the thin disguise of
interpretation.”97

“Proponents of a passive judiciary caution against what is perceived as

‘judicial legislation’, ‘judicial activism’, ‘government by judges’, or
‘judicial usurpation of legislative functions’. They suggest that there is
need to watch over the judiciary, to keep its interpretative supremacy in
check, to deal with the problem of judicial finality. Otherwise, they warn,
the judiciary itself might constitute a threat to the constitution. One basic
assumption informs this criticism. It is that the exercise of judicial power
is unlimited, unchecked and sheltered from the reciprocal oversight of the
other branches of government.”98

But it is now a myth that the judicial function is merely interpretative, not
creative as well. Lord Denning once felt able to describe judges who still
stick to the ‘old school’ of judicial passivity as ‘timorous judges’.
Progressive judges are said to be ‘bold’, ‘activist’. They are said to
belong to the ‘new school’ of judicial ‘creativity’. They espouse the
purposive or teleological method of statutory interpretation.

B. Judicial Legislation

97
Mayor & St. Mellons Rural District Council v. Newport Corporation [1952] A.C.
189.
98
C Anyangwe, op. cit., p.108.

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In his Law in a Changing Society Professor Friedmann makes the
pertinent observation that every legal order faces the problem of the role
of the courts in the evolution of law. He notes that until the twentieth
century the opinion prevailed in theory and practice that there was a
clear-cut division between the spheres of the legislator and the judiciary.
The judiciary is not parliament, it was argued. Its constitutional mandate
is to apply the law, not to legislate. This ‘simple doctrine’, says
Friedmann, was ‘propounded by the analytical jurisprudence of both
English and Continental provenance’ but challenged at the turn of the
twentieth century by writers and courts 99. Nowadays, it seems to be
allowed that within certain narrow and clearly defined limits, new law is
created by judges. This judicial law making is peripheral and the process
is a “very gradual and piecemeal one, a step-by-step progression
graphically described in Holmes’ phrase of legislating ‘interstitially’ that
is, within the interstices of the existing fabric of the law.” 100

Freeman notes that even when a court may take a bolder step by laying
down a new rule or principle which itself contains the potentiality of
creative expansion and development, as was done in Rylands v.
Fletcher101 and in Donoghue v. Stevenson 102, new law is virtually never
created completely in vacuo because the court will strive to follow such
analogies as are to be derived from established legal principle and to root
its decision so far as may be in the past rulings 103.

99
Page 45.
100
Freeman, p.1404.
101
(1868) L.R. 3 H.L. 330.
102
[1932] A.C. 562.
103
Freeman, p.1404.

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Judicial legislation seems permissible in at least three circumstances.
First, ‘judge- made law’ may be necessitated by the need to keep the law
in touch with modern developments, especially when the legislature is
supine. As an acknowledged agent of social change, the judiciary may
become ‘activist’, within the constraint of the Law of course.

“The government may be greatly burdened with great issues of state or

with a large amount of routine business. Parliament or the government
may be understaffed: they may lack enough lawyers, clerks and research
workers to advise and to draft proposals. The pace of change may be
great, bringing with it new social and economic conditions and demands
for the recognition of new claims. In such circumstances there is a
peculiar opportunity and need for judicial activity, provided the court is
moved … All the same, judges must tread carefully in their lawmaking
role lest they thwart the legislature or the government. Invariably, judges
will be criticized for lack of or for excessive boldness.” 104

Secondly, the judge may interpret the law constructively by giving ‘new’
meaning or application to it. Dworkin argues that judges who are
committed to ‘law as integrity’ for deciding cases endeavour to employ
the best constructive interpretation of the political structure and legal
doctrine of their community. Constructive interpretation is a form of
cultural understanding, a methodology for interpreting social practices,
legal and non-legal texts, and works of art105. For Balkin, judges are
“socially situated individuals who interpret the law for a particular

104
C Anyangwe, p.108.
105
Freeman, p.1394.

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purpose and bring a particular set of sociological and ideological
predispositions to their acts of understanding.” 106

More or less the same view is expressed by Allen who argues that “no
judge can escape the actual circumstances in which he lives, or attempt to
apply the laws of Utopia to existing society. In the material at their
disposal, all produced by contemporary causes, the Volksgeist occupies
an important place.” 107 Indeed, the ‘context rule’ of judicial interpretation
is informed by the fact that there is no such thing as clear and
unambiguous language in the abstract divorced from the context in which
it is used. The judge adverts his mind to that context (be it social, political
or economic) when interpreting the law.

Thirdly, the orthodox opinion, long received, is that judges in interpreting

the law fill in any gaps in the law by using their discretion. Positivistic
jurisprudence emphasizes the part played by judicial discretion in the
interpretative process. Hart wrote in his The Concept of Law that in cases
where discretion must be exercised “there is no possibility of treating the
question raised by the various cases as if there were one uniquely correct
answer to be found, so distinct from an answer which is a reasonable
compromise between many conflicting interests.”

Realists too emphasize what Holmes called ‘the sovereign prerogative of

choice’, that is to say, the paramountcy of the judge’s discretion. When it
is said that the judge exercises his discretion in ‘hard cases’, in

106
JM Balkin, ‘Understanding Legal Understanding: The Legal Subject and the
Problem of Legal Coherence,’ (1993 103 Yale L.J. 105, extract in Freeman pp.1292-
1308, at p. 1301.
107
Page 119.

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‘penumbra cases’, what that invariably means is that he reaches beyond
the law for some other sort of standard to guide him in manufacturing a
fresh legal rule.

C. The Judiciary Constrained by Law

Judicial discretion is not necessarily a bad thing and it is doubtful that it is

desirable or even possible to eliminate it. Judicial discretion is not judicial
licence. The choice the judge makes in the exercise of his judicial
discretion is always constrained by the Law. The judge is legally required
to give reasoned judgments, that is, to justify his decision by legal
arguments. No judge can escape the fact that when he sits in judgment he
is constrained by the Law.

Dworkin observed that there is no law beyond the law. There is nothing a
judge can do outside of the Law. The legal universe is completely self-
sufficient, always with a right answer. It has no gaps. Even in those cases
where arguments might exist as to what is the best understanding of the
law (‘hard cases’ as opposed ‘clear cases’), the judge cannot decide as he
pleases. There are controlling standards which he is bound to follow. The
judge cannot act as ‘deputy legislator’. He is unelected and must not
substitute his own will as against the legislature. To do so would be
violating the principle of separation of powers and offending the
democratic ideal that a people should be governed by elected officials
answerable to the electorate 108.

108
Freeman, p. 1391-1393.

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Subject to what has just been said, there appears to be a consensus among
jurists that some amount of judicial legislation is permissible, perhaps
inevitable. John Austin saw no wrong or danger in discreet and indirect
legislation by judges. In fact, Austin saw judges, in so far as they make
law, as mere ‘ministers’ of the sovereign entrusted with rule-making
functions necessarily and essentially not different from that of other
delegates of the sovereign. In his view judges were merely making up for
the negligence or the incapacity of the avowed legislator, the sovereign.

Professor Hart contends that since rules are ‘open-textured’ and their
application indeterminate at some point, there is room for the exercise of
judicial discretion at that point. Indeterminacy of application arises from:
indeterminacy of language itself (words contain a ‘central core of
certainty of meaning and a penumbra of doubt’); indeterminacy inherent
in the common law system of precedent; and the law’s use of general
standards such as ‘reasonableness’, ‘just and equitable’, etcetera.

It may thus be said that judicial legislation is permissible. However, it

functions within a constricted framework. The court is limited to the
actual issues and parties before it. It operates within a traditional
framework. The professional training and background of judges tend to
induce caution, such that judges are often reluctant to avow their own
creativity.

“Yet within the severely constricted field of judicial lawmaking there is

scope for the broader or narrower approach according to whether the
courts are endeavouring consciously to develop the law relatively freely
to meet new social and economic conditions, or whether, in a spirit of
conservatism, the aim is to tie legal development pretty literally to the

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precise enunciation of previous judges. The contrast here is sometimes
expressed as between judicial valour and judicial timidity.” 109

The relationship between the judiciary and the legislature is more that of
a partnership than that of agent and principal. For, the courts complement
parliament by the creative elaboration of the meaning of words in a
statute. The meaning of a statement is not fixed at the end of the process
of legislative enactment. Society evolves and the meanings of words
change over time. Background norms and larger public values come into
play. All this calls for a dynamic approach to statutory interpretation.
Indeed, feminism and postmodernism espouse a concept of interpretation
sometimes referred to as ‘interpretation as compensation’, that is, the
view that courts should hear voices of historically silenced, inject at the
level of interpretation the interests of the disadvantaged, and self-
consciously correct malfunctions in the legislative process.

109
Freeman, pp. 1405-1406.

117
 Part II

THEORIES ABOUT LAW

An anarchist might take the view that law is evil, unnecessary and
expendable. But most people would probably agree that law is vital to
society’s existence, peace, cohesion and progress. For, every society has
some form of social order: a way of encouraging approved social
behaviour, deterring behaviour seen as bad in the eyes of society, and a
system of disputes resolution. Law, it has been said, has two modes of
operation, coercive and directive.

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Questions about law have always exercised and continue to exercise the
minds of jurists and philosophers. As earlier noted, theorizing about law
is the special concern of jurisprudence, a law discipline that deals with
the various theories about law put forward by legal philosophers. The
study of the subject often presents itself as a history of an account of the
various conceptions of law espoused by prominent jurisprudents. That
account itself seeks to explain the genesis, the nature and the validity of
law; and the role or function of law in society, in other words, the
centrality of law in human affairs.

There are three broad fields of investigation: what is law? What is not
law? What is the purpose of law? The question, what is law, invites an
inquiry into what deserves to be dignified with the appellation ‘law’. This
is a matter of discernment that focuses on the nature and essential features
of law, enabling a distinction to be made between law and law-like
phenomena that do not count as law, such as custom, usage, etiquette,
rules of morality, and rules of games.

The question, what is not law, directs attention to the criteria of validity
of law. Foreign laws as well as repealed laws may fairly deserve to be
called law under the inquiry, ‘what is law?’ but they are not law within
the purpose of the inquiry, what is not law. The further question, what is
the purpose of law, invites an inquiry into what law is for and what it
does. This inquiry entails an examination of the place of law in society
and how it functions.

The diversity in the conception of law at once suggests that there is no

final and dogmatic answer as to what law is and that there are no
exclusive answers to the many questions concerning the essential nature

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of law. Part of the problem resides in the fact that the term ‘law’ (jus, lex,
droit, nomos, recht) may denote a particular legal rule, a legal order, or a
proposition describing the behaviour pattern of nature (for example, the
law of gravity, Ohm’s law).

The problem is not just a definitional one, but extends to the question
about the genesis and very essence of law. Law then appears to be like
the proverbial elephant which the three blind men of Hindustan went to
see; something which defies a generally acceptable conception but can
nevertheless be recognized whenever it is seen.

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 Chapter Four

Natural Law Theory: Nature as Legislator

In ancient times man made no distinction between the natural world and
the world of human beings. It was believed that everything in the entire
universe, including the conduct of human affairs on earth, were governed
by forces and powers directed by gods and supernatural spirits. From this
belief there grew the consistent assertion for hundreds of years that there
exists a law of divine or natural origin which governs all things be they
human reasoning and actions, animal behaviour, the universe, motion,
gravity, or physical and chemical reactions. ‘Natural law’ was
ambiguously denominated ‘law of God’, ‘law of mankind’, ‘law of
nature’, ‘law of reason’, ‘universal natural law’ – a clear indication that
the concept of ‘natural law’ has not remained static.

The core of natural law thinking is that there are objective moral
principles which depend upon the nature of the universe and are
discoverable by reason. According to this theory, these moral principles
are of divine origin; they constitute natural law and are different from and
superior to laws made by mere human beings. Being of divine origin,
natural law contains rules governing correct human conduct. These rules
are logically connected with immanent truths concerning human nature
and are valid of necessity.

Morality occupies a prominent place in natural law doctrine. Natural law

is said to contain the element of morality and this is held out as the
guiding principle to which all man-made law ought to conform. Thus, for

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man-made law to be valid it is not sufficient that it should be properly
made (i.e. made according to laid down procedures); it must, in addition,
be morally just or acceptable. In the eyes of natural law theorists
therefore, man-made law or positive law is valid law only if it is
consonant with morality. A law is invalid if it is not consistent with
morality. The moral test is consequently the criterion for determining the
validity of positive law. For natural law thinkers therefore, the separation
of law from morality is not possible at all. They argue that the moral
quality of law is one of the factors that brings it into being and determines
its continued existence. Positivists partially concede the point when they
agree that the validity of law is dependent on a formal criterion plus a
minimum moral content.

Naturalists see morality as a critical test because in their view fidelity to

positive law is enhanced if that law contains a moral character. In other
words, the obligatory force of positive law stems primarily from the fact
that it is morally acceptable. John Finnis makes the point that the reasons
we have for establishing, maintaining or reforming law include moral
reasons and those reasons therefore shape our legal concepts. 110 Any
positive law denuded of moral content is defective as law. What is the
law must be based on a higher law dictated by reason or the deity. This
does not however mean that positive law must be a mere copy of natural
law or emanate from it. Positive law is needed because natural law does
not itself provide all or even most of the solutions to the co-ordination
problems of communal life.

The pervasive role of natural law is evident in disciplines such as law,

politics and ethics, and in modern times is an important weapon in human
110
John Finnis, Natural Law and Natural Rights (1980).

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rights discourse (emphasis on natural rights and human equality and
dignity), and in political and legal ideology.

“The scope of natural law is immense. Precursory ideas of the natural law
doctrine are to be found amongst the early Greek conceptions of nature –
in Homer’s great epic poems, the Iliad and the Odyssey, and in the later
philosophies of Plato and Aristotle. The doctrine developed into a form
unmistakably recognizable today as natural law in the philosophy of the
Stoics in the early centuries of the Roman Empire and later passed into
the philosophy of the church where it assumed a religious character. It
underpinned secular philosophy in the sixteenth century, and in the
seventeenth and eighteenth centuries it contributed to the sister doctrine
of natural rights ... Natural doctrine possesses something of a dual nature
and has taken on the dramatically opposite guises of revolution and
reaction throughout its long history. In its revolutionary form, natural law
doctrine, in so far as it claims a higher and sacred validity, provides a
powerful political and legal instrument for social reform. This
revolutionary form of the doctrine which appeared in Greek culture in the
fifth century BC when the Sophists preached the idea of equality, also
surfaced among the Stoics who turned to natural law to propound the
universal brotherhood of man, and much later, culminated in the French
and American revolutions.”111

111
Adrienne van Blerk, Jurisprudence – an Introduction, Butterworths, Durban, 1998,
pp. 1-2.

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Section 1 Historical Synopsis

A. Hellenic and Roman Ideas about Law

Both Greek and Roman philosophers derived natural law from universal
nature. They believed that a cosmological order immanent in nature
directs the essence and purpose of everything. They thus developed a
philosophy that contained elements of mysticism, irrationality and fate.
For example, in Homer’s Greece, everything was attributed to the power
of fate or to the intervention of the gods. Nature dictated events in both
the physical and human worlds. All things were believed to be animated
by all-powerful spirits that intervened at will in the affairs of men.

Man had no autonomous or free will. He was not inhabited by shame and
a sense of responsibility. Each person had a fated lot in an order imposed
by cosmic power. However, under the influence of Aristotle (385-322
BC), Plato (429-347 BC) and the Stoics, the Greeks came to believe that
the universe is rationally ordered and that it is governed by intelligible
laws capable of being ascertained by rational investigation.

This characteristically Hellenic belief in the power of rationalism led

Plato to present justice in his Republic as a kind of absolute which can be

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apprehended only by the philosopher and can be fully realized only in an
ideal state ruled by a philosopher-king. However, Plato did not conceive
of justice as a form of law decreed by nature and to which man-made law
was subordinate. He asserted the intrinsic inequality of men and
advocated a strict class system. Justice to him meant giving to each
person what was due to him according to his status.

To him, although natural law had independent and absolute existence

obedience to positive law was necessary because the citizen was
implicitly contracted to obey the laws of the state. The state stood in the
same relation to the citizen as a parent. So injustice did not entitle him to
disobey the state, any more than a child may disobey a parent.

This Platonic view differed from the Aristotelian position. Aristotle was a
pupil of Plato. But he later rejected his teacher’s idealist philosophy. He
recognized that justice might be either natural (that is, common to all
mankind) or conventional (that is, varying from one state to another
according to its history and needs). He advocated a merit-based theory of
justice, the application of which today serves to entrench existing
inequalities.

Aristotle saw man as a part of nature, a part of matter. He however argued

that man was endowed with the distinguishing faculty of reason. It is this
faculty of reason, he went on, which made man special and gave him
prominence in the general order of things in the universe.

The Stoics added the argument that the entire universe, including man,
was governed by reason. Stoics, like the Sophists and the Cynics, stressed
the universality of human nature and the common brotherhood and

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humanity of man, a single, world-wide community of mankind, a global
citizenship. They contended that there was a universal law of nature
ascertainable by reason and from which the justice of man-made law
could be determined.

This universal law of nature represented universally applicable principles

of a higher order than man-made law. For the Stoics, the way man ought
naturally to behave was to be found in divine reason, and not in man’s
individual reason. The Stoics thus added the element of religion to the
basic framework of the law of nature as propounded by Aristotle.

The Greeks came to believe that man’s reasoning faculty was part of the
rational order of the universe and was capable of understanding the
universe. Indeed, modern belief in scientific laws stems from this
Hellenic approach. Since the universe was itself ordered rationally,
reason required the acceptance of rules which stood the test of rationality.
The Greeks however strongly felt that a man was morally obliged to obey
the laws of the state even when he believed them to be wrong or immoral.

The Stoic form of the law of nature later took root in the philosophy of
the Romans, thanks to the forensic eloquence of the Roman advocate
Cicero (106-43 BC). Human equality came to be emphasized on the claim
that universal natural law did not allow for inequalities between men.
Natural law became, for the Romans, a higher, absolute and unalterable
law against which the validity of positive law could be measured. Indeed,
Roman lawyers came to distinguish between three types of laws: jus
naturale, an ideal, immutable and universal law; jus gentium, the law
applicable by the Roman state throughout the Roman Empire both to the

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Romans themselves and to foreigners; and jus civile, the localized
positive law of Rome.

B. Judeo-Christian Concept about Law

The Bible tells us that the Jews were enslaved in Egypt for hundreds of
year but were subsequently freed and shown the way to the ‘promised
land’ where they eventually arrived and settled. Following their
deliverance the Jews were determined to set up a society in which
Pharaohs had no place, a society owing allegiance solely to God and
governed by His laws. They rejected their earlier belief and practice in
polytheism. They embraced monotheism in which God’s will was the
moral pattern for all mankind.

Hebrew prophets reiterated the imperative character of God’s law. They

spoke of the condign punishment that God would inflict upon those who
disregarded His law. Kings could make earthly laws, they said, but such
laws could never prevail over God’s law. In fact, earthly laws were mere
evils arising out of man’s sinfulness which derived from the Fall of Man.
God’s will was discoverable in the divine scriptures; and where this could
not be done directly it was declared by prophets.

This Judaic conception of divine law resulted in equating law with

morality. The only true law, Jews maintained, was that which embodied
the decrees of God’s will. Man-made decrees were not entitled to rank as
law at all. Law meant the religious or moral law decreed by God or
developed by divinely inspired human beings. And it is in this sense that

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the New Testament uses the word ‘law’, speaks of ‘the teachers of the
law’ and describes the Apostle Paul as a ‘lawyer’. ‘Law’ here meant the
religious or moral law, not the secular or temporal law. In the thinking of
the Jews, man must submit lovingly to the Divine Will even if it passes
all understanding, for God’s ways are mysterious.

Later, after the establishment of the Christian religion, Christian

philosophers came to identify the God of the Christian Church as the
source of the power of divine reason. This identification of the Christian
God as the source of divine reason facilitated the element of revelation.
Part at least of the specific content of the divine law could now be found
in the revealed scriptures and in certain fundamental tenets and sources of
guidance such as the Ten Commandments. Natural law was thus equated
with divine law, partly miraculously revealed, and partly ascertainable by
divine reason.

St. Thomas Aquinas (1225-1274 AD) although he lived in mediaeval

times, is probably the most prominent Christian philosopher ever, the
‘paradigm natural law theorist’. In his Summa Theologia he propounded a
comprehensive doctrine of natural law by synthesizing ‘Aristotelean
teleology and Christian dogma’. He classified law into four categories:
lex aeterna (eternal law), lex divina (divine law), lex naturalis (natural
law), and lex humana (man-made law).

“Divine law refers to revelation through the scriptures, while eternal,

natural and positive law all relate to man’s temporal existence. Eternal
law, in its entirety, is beyond human understanding, but man’s rational

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participation in the law of nature helps him to strive towards divine
perfection.”112

Freeman explains Aquinas’ four types of law as follows:

“The lex aeterna is divine reason, known only to God and ‘the blessed
who see God in his essence’. It is God’s plan for the universe, a deliberate
act of God and everything, not only man, is subject to it. The lex aeterna
is necessary since man is ordained to a particular end (eternal happiness)
and cannot attain this through his own powers alone but needs guidance
and direction. The lex divina is the law of God revealed in the Scriptures.
The lex naturalis consists of participation of the eternal law in rational
creatures. It is thus the eternal law in so far as this is intuitively and
innately known and knowable. Natural law is the same for all men since
all are rational and ‘it is proper for man to be inclined to act according to
reason’.”113

Aquinas’ philosophy is known as Thomism and his followers are called

Scholastics. Thomism postulates that all things and beings, including
man, strive to reach their own perfected nature which has been stipulated
by divine ordinance. The law of nature thus became closer to the law of
God. For Scholastics, the eternal law is the law of God, a perfect law that
reigns in God’s Kingdom. The divine law on the other hand is a partial
revelation directed to man via the Church to govern mankind so long as
his sinful earthly existence endures. It stands in a partial discovery of the
eternal law by man’s application of reason to his natural inclination.

112
Ibid, p.11
113
Freeman, p.106

135
Aquinas faced the question of unjust laws by holding that a law may be
unjust in two ways.

“The first is if it is damaging to the accepted norms of human welfare,

such as a law that institutes an unequal tax burden. Aquinas, however,
recommends obeying such laws (despite the injustice and even if they do
not bind in conscience) for the larger purpose of affirming respect for the
legal system as a whole. He accordingly gives social stability precedence
over an individual law which may be unjust, or in more modern terms,
law and order comes before justice. This had the effect of giving the
church’s support to the state and the status quo. The conservative tenor of
Aquinas’ attempt to validate positive law is also clearly apparent in his
religious argument that a command – even an unjust one – is ‘calculated
to render the members of the community good’. … The second way in
which Aquinas considered a law unjust is when it affronts divine law and
such laws must never be obeyed, because, Aquinas says, ‘we ought to
obey God rather than man’. The question whether or not a man-made law
conflicts with divine law, Aquinas asserted, was one which it was the
prerogative of the church to determine. This was advantageous reasoning
for the church should it come into conflict with the state.”114

Another prominent Christian philosopher was St Augustine (354 - 430).

Born in Algeria of a pagan father and a Christian mother, he became a
theologian, philosopher and moralist. In his City of God he asserted that
an unjust law was no law at all: lex injusta non est lex. Without justice, he
contended, kingdoms were but ‘great robberies’, and the state but a
‘robber-band’. This did not mean that an unjust law was nullified by its

114
Blerk, pp.11-12.

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unjust character. An unjust law was still a valid law, but it was a law
which failed the standards set by natural law.

For St. Augustine, while a law may be questioned before it is enacted,

once it has been instituted, it must be obeyed by citizens and must be
applied by the courts. Glossing over or ignoring the gap between natural
law and man-made law, St. Augustine thus advocated obedience to
temporal laws.

It would therefore seem to be an over simplification to claim that St.

Augustine’s lex injusta non est lex means that an immoral or iniquitous or
unjust law is not law at all. Aquinas himself did not say flatly that an
unjust law is not a law. He said an unjust law is not law simpliciter (that
is, in the focal sense of the term) notwithstanding that it is law secundum
quid (that is, in a secondary sense of the term).

Indeed, the central tradition of natural law theorizing in which the ‘lex
injusta…’ doctrine is embedded accords to iniquitous rules legal validity
in some sense, for example where the rules are accepted in the courts as
guides to decision, or where the rules satisfy the criteria of validity laid
down by the constitution. The tradition goes so far as to say that there
may be an obligation (what Finnis calls ‘a collateral obligation’) to
conform to some such unjust laws in order to uphold respect for the legal
system as a whole.115

C. Grotius and the Secularization of Natural Law

115
J Finnis, Natural Law and Natural Rights, 1980, p.364.

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Hugo Grotius (1583-1645) was one of the leading exponents of the law of
nature. He was the founder of international law on a natural law basis. He
embraced the Scholastic conception of the Divine Will as the supreme
source of law. But he concentrated on the rational nature of man, on his
capacity to reason and to arrive at reasoned judgments. He emphasized
not just reason but right reason. He believed that natural law was rooted
in the nature of man, and would exist even if there were no God (etiamsi
daremus non esse Deum). This did not mean that Grotius denied the
Deity. All he was asserting is that natural law was a quality of man and
independent of God.

Grotius undertook to explain why different societies adopt different forms

of government. Reason impels man to seek society, he said. The state
originated in a contract, based upon the principle pacta sunt servanda, by
virtue of which each individual surrendered his sovereignty to a ruler.
The group was free to choose the order it preferred. But once it had
chosen and had legitimately granted power to the government it lost all
power to restrain its ruler. And the ruler’s powers were then ordinarily
not subject to internal legal control.

In Grotius’ view, this is the way in which absolute power emerged.

Subjects thus owed unquestioning obedience to their rulers. Even if the
ruler was guilty of misrule the citizen did not have a right of resistance, a
right to revolt. Rather than resist bad laws by a show of force the citizen
had to endure the injustice those laws cause.

They must endure because although they transferred their powers to the
ruler they in effect remained the authors of all the laws of the land since

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laws were made in their name. The people cannot therefore impugn the
very laws made by them, albeit indirectly; for no man can do an injustice
to himself. The only internal restraint on the bad ruler rested in the
general belief in the condign punishment he would suffer for misrule, that
is to say, the pain of eternal death in the after life.

Resistance to the ruler’s authority was thus wrong. Only in very

exceptional circumstances could people revolt. Abolition of property
right by the ruler was apparently one such circumstance that would entitle
a people to revolt. The right of rebellion in this case apparently stems
from the fact that God originally created communal ownership of
property by giving all things to humanity to share. This form of
ownership was possible because of the simplicity and innocence of Adam
and early mankind. However, human life later degenerated into craftiness.
This human greed led to a natural shift from communal to individual
ownership of land and movable property. It was a central function of the
state to protect the right of property. If the state abolished ownership
rights or otherwise tempered with them, this would amount to injury to
the material interests of the citizens, an injury to the rights of ownership
which was theirs in the state of nature; and this would justify a revolt.

Grotius next addressed his mind to how to restrain the absolute sovereign
in his relations with other such sovereign. He asserted that nations were
still in a state of nature towards each other and were governed by natural
law. Man is a sociable being and desires peaceful society. It was futile for
nations to assert their absolute independence. Therefore, they too should
come together and form a society of states, just as people came together
to form a community of individuals.

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In this way, there was sowed the seed of the modern concept of
‘international society of states’ or ‘international community’, and the firm
conviction that the relations of states inter se should be governed by
international law. Grotius sought to establish international law on two
foundations, consent and the law of nature. From natural law Grotius
deduced principles as to how states should conduct themselves. The idea
of consent was utilized to infer rules from the observed practice of states.
Grotius posited natural law as the principal foundation of international
law. For canvassing these ideas Grotius earned the distinction of being
called the ‘father of international law’.

Section 2 Natural law and Natural Rights

The theory of natural law is individual-centred, starting from the premise

of individual autonomy and treating the individual’s rights as being
inherent, natural and not conferred. The theory is founded on two
philosophical conceptions: the idea of rights as naturally ordained by the
deity or as self-evident facts of nature; and the social contract theory
canvassed by Thomas Hobbes in his Leviathan, John Locke in his Two
Treatises on Government, and Jean-Jacques Rousseau in his Du Contrat
Social116.

A. Social Contract Theory

116
C Anyangwe, Introduction to Human Rights and International Humanitarian Law,
University of Zambia Press, 2004, pp.11-12.

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Early natural law theorists such as the Frenchman Jean Bodin (1530-
1596) and the Englishman Thomas Hobbes (1588-1679) advocated total
obedience to the sovereign on the postulate that kings were God-ordained
‘natural or divine rulers’ who enjoyed absolute authority (and thus
answerable to no earthly authority, internal or external) by reason of a
natural order decreed by God Himself.

In his Leviathan Hobbes justified absolute sovereign power by

postulating an imaginary compact between rulers and ruled. He argued
that man’s life in a state of nature was one of fear and selfishness. “Every
man is enemy to every man … Worst of all, [there is] continual fear, and
danger of violent death; and the life of man, solitary, poor, nasty, brutish,
and short.”117

Hobbes contended that in order to escape from this state of affairs in

which each man “is a wolf to every other man” (‘homo homini lupus’),
men entered into a social contract whereby they surrendered their rights
to a sovereign ruler. In return for absolute subservience to him, the
sovereign ruler guaranteed peace and greater security to each person than
he might otherwise have had. In this way natural law theory was used by
Hobbes to support absolute power.

However, the notion soon began to gain ground that man possessed
certain fundamental rights in a state of nature. These rights were not lost,
it was argued, when man gained civil status in civil society. Those
fundamental rights remained protected by natural law. John Locke (1632-
117
Quoted in Freeman, p.147.

141
1704) was able to refurbish the mythical social contract theory so as to
protect the ruled from the menace of the ruler.

“The Lockeaian theory is that man as an individual is autonomous,

sovereign, and possessed of a whole bundle of rights and liberties in a
state of nature. Man is said to possess certain rights in his natural state
devoid of the intervention or support of society. He brings these rights
with him into society. Society is created not to destroy the rights but to
protect them by enacting laws. Man did not lose all of his rights when he
gained civil status in civil society. Some rights were surrendered in order
to enable society to function; but others remained protected by natural
law.”118

Hobbes’s state of supposed natural social strife was soon discredited.

Locke argued in his Two Treatises of Government that the state of nature
which preceded the social contract was not one of anarchy as Hobbes had
maintained. It was, he said, a state of liberty, not of licence; and
sovereignty unlimited and irresponsible was not to be admitted under any
disguise. As Allen points out, group instinct, out of which society has
grown, is based on co-operation, not on strife 119. No human group ever
has survived without combining to resist or to adapt, for the common
advantage, adverse conditions of physical environment. “It is not the
habit of any group of creatures to exist only for internecine strife.
Hobbes’s famous homo homini lupus was an inapt metaphor, for the wolf
is not the natural enemy of the wolf, and the pack is based on
combination, not on warfare.”120

118
Anyangwe, pp.12-13.
119
CK Allen, Law in the Making, p.6.
120
Ibid.

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Like Descartes before him, Locke exalted Reason121. He declared that
Reason must be man’s last guide and judge in everything. For him, law
itself was an emanation from a natural order of things, a natural rule of
Reason. The state of nature was a state of liberty, not strife. The liberty of
each member of society, Locke argued, can be curtailed only by his own
consent in his own interest.

In Locke’s view, the only shortcoming of the state of nature was that life,
liberty and property were insecure as there was neither established law
nor impartial judge. To remedy this flaw, men entered into a social
contract which consisted of a pact (pactum unionis) by which they
formed a civil society, living together as a community; and a compact
(pactum subjectionis) by which they instituted a government with
political powers to protect their respective rights.

By this arrangement the individual gave up some of his rights in

exchange for being part of society. However, he yielded to the sovereign
not all his rights but only the power to preserve order and enforce the law
of nature. The individual retained the natural rights to life, liberty and
estate, for these were the natural and ‘inalienable rights of man’.

121
Locke’s exaltation of Reason drew sharp criticisms from the Irish politician and
writer, Edmund Burke (1729-1797) and the French ‘theocrats’ of the early nineteenth
century. Burke considered the exaltation of Reason as impious and excessive. The
French theocrats cautioned that the only omnipotent Reason in the universe was the
Supreme Reason of God and that the rationalist was in danger of arrogating to himself
superhuman attributes. God’s law in society, they said, was not natural equality, but
natural inequality. Man ought, therefore, to think upon his frailties rather than upon
his excellences, looking for a Higher Power alike for the genesis and the governance
of social life. Allen, pp.12-15.

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The purpose of ‘civil government’ was simply to protect these rights – “to
preserve the members of that society in their lives, liberties, and
possessions.” The power of government was conceded only on trust by
the people to the rulers. “All this is only for the public good,” said Locke.
So long as government fulfilled this purpose its laws should be binding.
But when it ceases to protect or begins to encroach on these natural
rights, laws lose their validity and the government may be overthrown.

“The social contract between the individual and society (represented by

government) delineates the rights surrendered to the state, and those that
are retained by the individual. The rights that are retained by the
individual are those that are natural concomitants of being human. They
are capable of being identified by simply contemplating the condition of
an individual in the state of nature. Then, by eliminating all conditions
that might be the result of a person’s situation in life as a member of the
body politic, it is possible, so it seems, to penetrate the true essence of the
human and translate that vital modality of being human into ‘rights talk’.
… Through the social contract man yielded to society only the power to
preserve order and enforce the law of nature, retaining the natural rights
to life, liberty and property; for these three basic rights are ‘the natural
and inalienable rights of man’. In Locke’s theory of government, the
purpose of government is simply to protect these rights … The power to
govern is conceded only on trust by the people to the ruler. So long as
government fulfils this purpose, its laws should be binding and obeyed.
But when it ceases to protect these natural rights or begins to encroach on
them, then the social contract is automatically dissolved, the ruler’s laws

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lose their validity, and the government may be overthrown leaving the
subjects free to conclude a new compact with another sovereign.” 122

It may be hypothesized that the Lockeaian idea that the people have,
under the law of nature, what in effect may be termed ‘the right to revolt’
against the ruler who does not rule consistently with the social contract,
provided the philosophical basis for the Revolutions that occurred in
England (1688-1689) and American (1775-1781).

It is little surprising that the American Declaration of Independence

(1776) and the Constitution of the United States of America are
essentially natural law documents. The Declaration opens with the
following ringing affirmation: “We hold these truths to be self-evident,
that all men are created equal; that they are endowed by their Creator
with certain unalienable Rights; that among these are Life, Liberty and
the pursuit of Happiness.” The Constitution sets out the fundamental
authority of the people under natural law and guarantees the natural rights
of the citizen. Moreover, because these rights are embodied in the
Constitution, they are justiciable and have a special priority which
enables the courts to treat them as superior to and thus prevailing over
any legislation or other legal rule which conflicts with it.

The social contract theory underwent yet another revision in the hands of
Jean Jacques Rousseau (1712-1778), a Swiss. Rousseau sought to explain
away the fact that man, though ‘born free, is everywhere in chains’, that
is to say, is everywhere subject to government.

122
Anyangwe, p.13.

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In his Contrat Social Rousseau argued that the original state of nature
could no longer be endured as man was in danger of perishing. There was
no other way in which men could maintain themselves except by coming
together and pooling their strength in a way that would enable them to
withstand any resistance exerted upon them from without. So some form
of association was found as a result of which the whole strength of the
community was enlisted for the protection of the person and property of
each constituent member, in such a way, that each, when united to his
fellows, renders obedience to his own will, and remains as free as he was
before. That form of association is the social contract.

In the original social contract individuals did not surrender their rights to
any single sovereign, but to society as a whole, and this is their guarantee
of freedom and equality. For Rousseau, natural law did not create
imprescriptible 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’ (la volonté générale) which differed from the mere sum of
the individual wills of the citizen.

“To Rousseau the social contract is a mystical construct by which the

individual merges into the community and becomes part 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 their time to public affairs’.”123

There was therefore need for some specialization. The people would
control the business of government while an elected few (Rousseau
123
Freeman, 117.

146
favoured what he called ‘elective aristocracy’) would actually carry out
the business of governing. Government could only be tolerated so long as
it accurately reflects the general will.

The general will was, by natural law, the sole and unfettered legal
authority in the State. Any actual ruler was a ruler only by delegation and
could be removed whenever rejected by the general will. Rousseau’s
doctrine implied that the people were the real rulers and could overthrow
at their discretion any incumbent government. Rousseau thus supplied not
only the main doctrine (the sovereignty of the people and the supremacy
of the general will) but also the emotional spirit that made people ready to
rebel. In this sense, Rousseau’s doctrine was more revolutionary than that
of Locke. Indeed, it was in the light of Rousseau’s philosophy that the
French revolutionaries in 1789 ultimately overthrew the Ancien Régime
and sought to impose ‘the natural law of Reason’ in its place.

Rousseau’s approach however really implied the tyranny of the majority.

He insisted that whoever refused to obey the general will was to be
compelled to do so by the whole body politic. In Rousseau’s ominous
phrase, reminiscent of twentieth-century totalitarianism, the recalcitrant
minority must be ‘forced to be free’. Thus, ironically enough,
Rousseauism which arose out of a faith in democracy and liberty, became
an instrument of totalitarianism.

B. Death and Resurrection of Natural Law

Up to the nineteenth century natural law theory held sway and

commanded great respect. The theory’s appeal laid in part in its

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contention that there existed a law of nature that was immutable,
universal, eternal, and superior to human law: immutable in that it
consisted of unchanging principles of law that existed in nature and that
defined for man what was right, just or good, and which ought to govern
all his actions; universal in the sense that its principles were said to be
accessible to all human beings and discernable through right reasoning;
eternal in the sense that its principles were considered valid for all time
and applicable to all human beings at all times and in all circumstances;
and a higher law because of the claimed superiority, justness and
authoritativeness of its source.

Natural law theory maintains that human behaviour is governed by

nature; indeed, that the whole universe is governed by one law, natural
law. Proponents of the theory argue that for any human law to be valid, it
must conform to the principles of nature. In their view, human law must
conform to natural law. In order to ensure that this is the case, the
lawmaker must, before positing a law, first observe and see what obtains
in nature (inclusive of what is inherent in human nature) concerning what
he wants to legislate on. What he sees as obtaining in nature (that is, what
is existing in nature) ought or should then be the content of the enacted
law.

Naturalists therefore argue that the ‘ought’ may be deduced from the ‘is’;
that is to say, ‘positive law’ may be derived from ‘natural law’. In other
words, they argue that normative propositions may be derived from
factual statements. But how does one get from ‘is’ to ‘ought’ without
making an unacceptable logical inference? Naturalists seek to do this by
asserting that if it is a natural law for men to act in a particular way (this

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being discernable by observation of his behaviour pattern), then he ought
morally to act in this way. Maritain, for example, asserts that

“since man is endowed with intelligence and determines his own ends, it
is for him to attune himself to the ends that are necessarily demanded by
his nature. This means that there is, by force and virtue of human nature
itself, an order or disposition which human reason can discover and
according to which the human will must act in order to attune itself to the
essential and necessary end of the human being.”124

Natural law theorists start from an assessment of what the moral attitude
of the people in society is. From this they deduce what the desired state of
perfection and the moral principles leading to it ought to be. On this basis
they decide how the desired result can be achieved through the law. This
is what is meant when it is said that natural law theorists try to derive an
‘ought’ from an ‘is’, that is to say, from the ‘is’ of actual existing moral
attitude to the ‘ought’ of what must be desired and therefore the proper
set of social arrangements. It is then on this basis that they proceed to
evaluate the law that is actually in place and decide whether it is valid or
not, depending on whether it is what it ought to be. Positive law would
thus be valid only if it does not contradict natural law.

Naturalists argue, for example, that from the observation of nature it can
be seen that living creatures are attracted to their opposite sex, engage in
heterosexual intercourse, and reproduce their kind to perpetuate their
species. Men and women are thus attracted to each other, have sex, and
procreate. It is thus natural for mankind to reproduce itself. This is what

124
Quoted from extract in Freeman, p.154.

149
is. Therefore mankind ought to reproduce itself, and it would be contrary
to this natural law for humans not to produce children. Human law that
goes against this natural inclination of male and female to ‘find’ each
other and to procreate would consequently be invalid.

It follows that any positive law in restraint of marriage or that makes

marriage per se unlawful, would be an invalid law as offending against
the law of nature, a higher law. A law prohibiting procreation per se
would likewise be an invalid law. A law that sanctions abortion, same-sex
‘marriage’, or sexual deviancy such as homosexuality, buggery and
bestiality would, by parity of reasoning, be invalid as well because such
conduct offends against the ‘natural order’ of things and is therefore
immoral. Conclusions on the moral impropriety of contraception and
abortion as well as the unacceptability of gay unions are thus reached
from the standpoint of natural law theory.

The positivist critique is that naturalists confuse scientific laws (which

describe what does occur) with moral or legal rules (which prescribe what
should occur). Positivists look at law as posited by the authorized
legislator. For them law is valid so long as it has been properly made and
so ought to be obeyed, whatever moral judgment one might make of it.
Positivists do not agree with the naturalist’s notion of deriving positive
law from what is observed as obtaining in nature (inclusive of human
instinct or intuition). They do not consider morality as a criterion for
determining the validity of positive law. They champion the separability
of law and morality

The nineteenth century witnessed the eclipse of natural law theory by

positivist theory of law. Many reasons account for the diminished respect

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for and the consequent decline of natural law ideas. Philosophers like
David Hume (1711-1776) were quick to point out that notions such as
‘good’ and ‘evil’ were subjective emotional reactions. There was also a
general reaction against excessive individualism which natural law
doctrines had fostered through its emphasis on natural rights and human
equality and which had led to the English, American and French
Revolutions. Furthermore, in the course of the nineteenth century
collectivist outlook on life gathered momentum.

Moreover, intellectuals nurtured in the inquiring spirit of science found

the a priori methods of natural philosophers unacceptable. They criticized
natural law theory as anchored on unverified and unverifiable hypotheses.
That theory, they argued, failed to satisfy a new era of intelligence and
inquiry which would not subscribe to theoretism without empirical
evidence. Its speculative and hypothetical character, they said, placed it at
the disposal of anyone to use or to abuse. Like a harlot, says Alf Ross 125,
natural law is at the disposal of everyone; for there is hardly no existing
ideology that cannot be defended by an appeal to the law of nature. So,
like a harlot, natural law is available to everyone for use in support of
revolutionary or conservative ideologies; it is at the disposal of people of
widely varying political persuasions, available for use as a vehicle of
reform, revolution, reaction or conservatism.

However, natural law did not suffer a decline for too long. The theory
witnessed a revival in the twentieth century, albeit with some
adjustments. Many reasons explain the resurrection of natural law
doctrine. Scientists honestly admitted that their subjects were to some
extend also founded on assumptions. Further, it was realized that judicial
125
On Law and Justice, p.261.

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reasoning is creative and not just syllogistic. More importantly, the World
Wars led to decline in standards, to growing insecurity and to a quest for
a moral order. The rise of totalitarian regimes in Europe led to calls for
the development of an ideological control of the exercise of power by the
State.

These circumstances prompted a return to natural law theory, albeit to a

slightly refurbished version of it. This new natural law theory strives to
take account not only of the knowledge contributed by the analytical,
historical and sociological approaches to law, but also of the increasingly
collectivist outlook on life. The new natural law doctrine emphasizes a
doctrine of method rather than of substance. According to this new
natural law, the actual content of law varies in time and space. This has
been labelled ‘natural law with a variable content’. Revived theories of
natural law are often divided into three categories, namely, Catholic,
philosophical, and sociological.

Catholic theories of natural law seek to redefine and adapt the doctrines
of Thomas Aquinas to the ideas of modern times. The adapted doctrine is
referred to as neo-Thomism (or neo-Scholastics) and enjoys a revival of
some force in France (Jean Dabin, Jacques Maritain), Italy (Del Vecchio),
Spain and other countries where the Roman Catholic Church exerts
considerable influence.

One of the principal exponents of neo-Thomism was the Frenchman Jean

Dabin (1889-19..). The law of nature, Dabin maintained, is a moral
instinct or intuition. It prescribes merely broad generalizations; the
detailed working out is left to the authority of the Catholic Church. Dabin
argued that there is a moral duty to obey only those positive laws which

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conform to the natural law principle of promoting the common good. If a
law failed to conform to this principle, it might be legally valid but not
morally binding. Dabin did not face the question whether it would be
immoral to disobey such a law.

Maritain (1882-1973), an exponent of natural law theory nevertheless

concedes that ‘law has force of law only when it is promulgated’. In his
Man and the State (1951) he wrote:

“I take it for granted that we admit that there is a human nature, and that
this human nature is the same in all men. I take it for granted that we also
admit that man is a being who is gifted with intelligence, and who, as
such, acts with an understanding of what he is doing, and therefore with
power to determine for himself the ends which he pursues. … Natural law
is not a written law. Men know it with greater or less difficulty, and in
different degrees, here as elsewhere being subject to error. The only
practical knowledge all men have naturally and infallibly in common as a
self-evident principle, intellectually perceived by virtue of the concepts
involved, is that we must do good and avoid evil. This is the preamble
and the principle of natural law; it is not the law itself. Natural law is the
ensemble of things to do and not to do which follow therefrom in
necessary fashion. That every sort of error and deviation is possible in the
determination of these things merely proves that our sight is weak, our
nature coarse, and that innumerable accidents can corrupt our judgment.
Montaigne maliciously remarked that, among certain peoples, incest and
theft were considered virtuous acts. Pascal was scandalized by it. All this
proves nothing against natural law, any more than a mistake in addition
proves anything against arithmetic, or the mistakes of certain primitive
peoples, for whom the stars were holes in the tent which covered the

153
world, prove anything against astronomy. Natural law is an unwritten
law. Man’s knowledge of it has increased little by little as man’s moral
conscience has developed. … The knowledge that our own moral
conscience has of this law is doubtless still imperfect, and very likely it
will continue to develop and to become more refined as long as mankind
exists. Only when the Gospel has penetrated to the very depths of our
human substance will natural law appear in its full flower and its
perfection. So the law and the knowledge of the law are two different
things. Yet the law has force of law only when it is promulgated. It is
only insofar as it is known and expressed in affirmations of practical
reason that natural law has the force of law. … But it is by virtue of
natural law that the law of Nations and positive law take on the force of
law, and impose themselves upon the conscience.” 126

The philosophical forms of natural law have generally taken the form of
neo-Kantism. According to the German philosopher Immanuel Kant
(1724-1804) man should always act so that his norm of conduct might be
translated into a universal law. In Critique of Practical Reason (1788)
Kant asserted that the realm of ‘ought’ contained the absolute rule of
morality which he called ‘the categorical imperative’. He held this
imperative to be a principle whose absolute truth was known by intuition.
Neo-Kantian philosophers such as Stammler (1856-1938), another
German, argued however that in the realization of justice the specific
content of a rule of positive law will vary from place to place and from
age to age. It is this relativity which has earned neo-Kantism the name of
‘natural law with a variable content’.

126
Quoted from extract in Freeman, pp154-156.

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The sociological theory of natural law, on the other hand, adopts a more
factual approach. It attempts to apply scientific methods derived from
social sciences in order to elicit the primary data of man’s fundamental
drives, urges and needs. This approach has been greatly canvassed in the
United States of America where there is a strong emphasis on the social
sciences.

Today natural law doctrine remains relevant in more ways than one. To
begin with, natural law thinking offers help within two vital
contemporary problems, namely, the problem of the validity of unjust
law, and the problem of the abuse of authority. Furthermore, natural law
received one of its most fruitful developments in the incorporation of a
Bill of Human Rights in the American Constitution. Following the
example of the USA, most countries in the world now have a Bill of
Human Rights incorporated in their written constitutions.

At international level there is also an International Bill of Rights

consisting of pertinent provisions of the Charter of the United Nations,
the Universal Declaration of Human Rights, and the 1966 United Nations
human rights covenants (the International Covenant on Economic, Social
and Cultural Rights, and the International Covenant on Civil and Political
Rights). At regional level, Europe, African and the Americas each have
regional human rights instruments.

Human rights have thus been given not only a specific content but also
legal recognition as inherent, inalienable, imprescriptible and justiciable
rights. Apart from treaty and constitutionally guaranteed human rights
provisions there are many other claims that may be made for natural law.
It may be said that the concepts of reasonableness; fairness; good faith;

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equity; natural justice; equality; non-discrimination; development
assistance from rich to poor countries; a world order based on peace,
justice and human welfare, etc. all rest on a foundation of natural law.
Also, the system of international law and international organizations owe
a good deal historically to a general belief in a rational and universal law
of nature.

The rediscovery of the concept of practical reason as at the heart of both

law and morality shows their connectedness. This connectedness between
law and morality would suggest that the gulf between positivism and
natural law may not be as great as stereotypical pictures of the ‘schools’
suggest. For example, positivists now see a core of good sense in natural
law. Hart calls it a minimum content of natural law, MacCormick ‘ethical
legalism’ and Campbell ‘ethical positivism’. All this brings leading
contemporary positivist thinking closer to natural law than has been the
case before.

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 Chapter Five

Law and Science: Legal Positivism

The birth of the positivist conception of law may be traced to the

Epicurean School in Ancient Greece, as well as to the Renaissance period
with its emphasis on the secular study of science and humanism. The
word ‘positivism’ itself was coined only in the nineteenth century by the
French sociologist, Auguste Comte (1798-1857).

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As a movement, however, positivism was inspired by the French
philosopher, Réné Déscartes (1596-1650), ‘the father of modern
philosophy’ and a thinker who exalted inalienable and indestructible
Reason, an exaltation carried on by Locke. The positivist movement was
given powerful impetus by the English jurist John Austin (1911-1960),
and gained momentum in the nineteenth century following the writings of
the Scottish philosopher, David Hume (1711-1776).

Positivist doctrine makes a clear demarcation between the laws of the

physical universe, and normative laws. The laws of the physical universe
govern the behaviour of all physical entities in accordance with the
inexorable principle of physical causation and thus describe what does
occur. Normative laws, on the other hand, lay down norms of human
conduct; they prescribe what should occur. Positivists argue that
philosophical speculations should be based on empirical (scientific) tests,
associated with observation. Legal positivism distinguishes between is
and ought propositions of law, and maintains that law could be studied as
a science.

Positivists contend that law is something posited, that is to say, made or

enacted in some prescribed form. Law is a human product; it is artificial
not natural; it is made, not given or discovered. There is no inherent or
necessary connection between law and morality. The most important
features of law are not to be found in its source-based character (that is,
its origin), but in law’s capacity to advance the common good, to secure
human rights, and to govern with integrity. A valid law is law made
according to prescribed procedures by a legally competent authority. The
law prescribes what ought to be done and that is what should be done,
whatever its moral content.

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Section 1 The ‘Is’ and the ‘Ought’ of Law

A. David Hume and the ‘Is-Ought’ Question

David Hume was among a group of 18th century intellectuals dedicated to

studying society scientifically. He rejected social contractarian
explanations of society. He argued that it was government which made
promises possible and that it is fruitless to seek in the laws of nature a
stronger foundation for our political duties than interest and human
conventions. He partially rejected natural law theory and developed an
exclusively empirical version of the fundamental principles of natural
law.

“His secularism led him to attempt to found a science of morality and law
in a science of man which had no need of a religious hypothesis. This
meant ‘pruning the idea of justice of its universal superior meaning’.
Hume found no immediate relationship between justice and any natural
inclination. He argued that for an act to be moral, there had to be a motive
considered good independently of the sense of virtue of the action. His
difficulty was to find one in the case of justice because there is no natural
inclination to be just. Analysis of justice showed that the ‘passion’
involved was contrary to just action and socially destructive in itself. So
justice and human society were possible because the socially destructive
passion was redirected by the understanding with reason acting obliquely
on the passion. Justice was thus ‘an invention of a naturally inventive

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species, and from that point of view natural … Hume called the rules of
justice ‘natural laws’ since ‘they are as old and universal as society and
human species, but prior to government and positive law’.”127

Hume distinguished two areas of human inquiry, the field of ‘facts’ and
the field of ‘ought’. The field of facts, he argued, is concerned with what
is actually the case. A fact-proposition (i.e., is-proposition) can be treated
as either true or false. The field of ‘ought’, on the other hand, is
concerned with what ought to be the case. Matters dealing with ought-
propositions are normative subjects and the actual propositions of such
matters are called ‘norms’. Thus the positive law and the moral law are
both normative subjects. The propositions they enunciate are ought-
propositions since they lay down rules of conduct rather than state facts
(i.e. is-propositions or fact-propositions).

Normative rules are distinguishable from physical laws which state causal
connections. Physical laws are subject to verification, that is, they can be
true or false. For example, assertions such as ‘water boils at 100 degrees
centigrade’, or ‘iron is heavier than water’ are factual statements and are
verifiable as true or false. But the notion of truth or falsity is inapplicable
to normative rules. For example, the rules ‘motorists should drive at the
right-hand side of the road’, ‘murder is punishable by death’ are
normative propositions over which we may differ but cannot be proved as
true or false.

Human laws and moral judgments are not in themselves statements of

facts. They are rules or norms which prescribe a course of conduct, and

127
Freeman, p.121.

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indicate what should happen in default. The sanction merely indicates
what the rule itself prescribes as the consequence of non-compliance. It is
not usually connected in an empirical sense with the rule or its breach.
Normative rules simply state what should or ought to happen. Kant was
thus able to distinguish between sein (being) and sollen (ought), a
distinction emphatically brought out by Kelsen. The word ‘ought’ does
not necessarily imply moral obligation; in relation to a purely positive
rule, the ought merely relates to the duty of compliance with the rule on
pain of suffering the prescribed penalty128.

Attempts to base positive law on an immutably established natural law

governing the universe have involved an attempt to link normative rules
directly with what are really conjectural hypotheses of factual character
(ie in the natural of physical laws). In 1740 Hume pointed out the fallacy
of trying to derive ‘ought’ from ‘is’. He argued that a normative
statement could not be inferred from a purely factual one. In his Treatise
of Human Nature (1777) he wrote:

“In every system of morality … the author proceeds for some time in the
ordinary way of reasoning, and establishes the being of God, or makes
observations concerning human affairs; when I am surpriz’d to find that
instead of the usual copulations of propositions, is and is not, I meet with
no proposition that is not connected with an ought, or an ought not. This
change is imperceptible; but is, however, of the last consequence. For as
this ought, or ought not, expresses some new relation or affirmation, ‘tis
necessary that it shou’d be observ’d and explain’d; and at the same time
that a reason should be given, for what seems altogether inconceivable,
how this new relation can be a deduction from others, which are entirely
128
Ibid., p.11.

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different from it. … [T]he distinction of vice and virtue is not founded
merely in the relations of objects, nor is perceiv’d by reason.” 129

B. Jeremy Bentham and Utilitarianism

Jeremy Bentham (1748-1832) developed and popularized the principle of

utility. Following the dethronement of natural law theory by positivist
theory, Bentham sought to provide a scientific or rational standard of
morality in his principle of utility which he conceived as an experimental
science governing the sphere of morality. He attempted to analyse the
springs of human action in terms of pleasure and pain, and to reduce
human needs to a ‘calculus of felicity’ where different ‘lots’ of happiness
could be weighted by certain qualitative tests, in order to ascertain what
utility decreed.

Bentham’s principle of utilitarianism became so influential in the

nineteenth century that legal positivists drew a great deal from it. Man’s
behaviour, the utilitarians maintained, is conditioned by pain and
pleasure. If pleasure is increased and pain diminished, then human
happiness is utility. The test of utility is what served the greatest
happiness of the largest possible number. Bentham’s utilitarianism was
geared towards maximizing human happiness according to his slogan,
‘the greatest happiness of the greatest number.’

For utilitarians, law should promote the greatest happiness of the greatest
number; and a law that fails to do so is an invalid law. Bentham’s
129
Quoted from extract in Freeman, p.28.

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principle of utility (furthering pleasure and eliminating pain) equates
good with pleasure and evil with pain. The valididty of this thesis as a
general proposition may be doubted because human beings are not always
governed in all respects by the seeking of pleasure and the avoidance of
pain. Some human actions are impulsive acts of heroism, without a
moment’s reflection as to consequences, or are repetitions of useful
habits, or performances of duties imposed by custom.

The contribution of utilitarianism to legal philosophy is that it provided a

fertile climate for the move towards legal positivism. Legal positivism
has two aspects. First, it tends to treat law as a science deserving to be
ranked with the other sciences both in its aims and in its methods.
Secondly, it makes a firm distinction between law as it is (i.e. the lex
lata) and law as it ought to be (i.e. the lex ferenda).

That distinction has come in for incisive criticism. It is doubtful whether

the law ‘that is’ can be sharply divided from the law that ‘ought to be’;
for where there is a lacuna the judge is perpetually clothing positive law
with the rule he thinks ought to exist. Even positivists like Austin and
Bentham concede that though law should be accounted for in strictly
positivist terms, nevertheless if laws reach a certain intolerable degree of
iniquity then there should be a plane moral obligation to resist and
disobey them. The complete separability of law and morality is thus
doubtful. For, where questions of justice emerge the stability of the entire
legal system and the validity of its laws may depend on the extent to
which the majority views a society’s laws as conforming to some moral
standard. So, by emphasizing law as it is, positivist theory provides what
might be considered an arid and excessively formalistic approach to law.
It does not explain all the salient features of extant legal systems, nor

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does it offer room for improvement. The theory takes an approach to law
which simply legitimizes existing structures and institutions even if these
are corrupting of law.

C. John Austin and the Command Theory of Law

John Austin, the fount of nineteenth century positivism, is famous for his
imperative or command theory of law. That theory gives central place to
political power via the concept of sovereignty. Only the commands of the
sovereign and his subordinates are the province of positive law or ‘law
properly so-called’.

According to the historical and sociological theories of law, the essence

of law is that it develops within society of its own vitality. Law is
spontaneous, growing upwards, independently of any dominant will. At
some stage in the ordinary course of society’s social growth, sanction
imposed by a supreme established authority becomes necessary. But
authority so set up and obeyed by agreement is not the sole and
indispensable source of all law. That authority is itself a creation of law.
“Law begins to grow as soon as society begins to grow; it is not invented
and imposed ab extra at any specific stage of development.” 130

By contrast, the position consistently maintained by Austin is that the

essence of law is that it is imposed upon society by a sovereign will. The
picture that is painted is that of an omnipotent authority standing high
above society, and issuing downwards its behest. The authority is, and

130
ALLEN, P. 6

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must be, the creator of law. It enforces law because it has the right to do
what it likes with its own. According to this doctrine the existence of a
dominating sovereign will is an absolute pre-requisite to all law. There
may be social observance existing before the sovereign authority or
without it, but they are not law in any proper significance of that term.
Before any rules deserving the name of law can be said to exist, there
must be a sovereign from which they can derive authority. The Austinian
sovereign is the sole source of law. There may be ‘immediate and
mediate’, ‘direct and indirect or oblique’ sources, but the term source can
be properly applied only to the sovereign 131.

To Austin, customs are ‘subordinate sources’ of law. Allen points out that
Austin appeared to have ignored the fact that various historical elements
have gone to make up the material of law. The different materials found
to exist in law cannot be understood independently of their historical
evolution. Their origin is essentially a mater of social history. To
predicate that this origin is one and must be a single sovereign, a
determinate human superior which creates all law, has no historical
justification. The idea of unlimited, indivisible sovereignty propounded
by Hobbes and Austin would seem inappropriate, Allen further argues, in
the light of the emergence of federal states, and undesirable given the rise
of totalitarian states in the nineteenth and twentieth centuries.

Austin’s command theory of law may be examined a little bit more

closely132. In his analysis of law, Austin distinguishes between two types
of laws. There is what he denotes as ‘law strictly so-called’. This is law
set by political superiors to political inferiors, set by people acting in

131
Ibid., pp..1-2.
132
Blerk, pp. 29-34.

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pursuance of legal rights conferred on them by political superiors. Then
there is the other type of law which he denotes as ‘laws not properly so-
called’.

These are rules laid down by persons having power over others but not as
political superiors or in pursuance of legal rights, for example, priests,
teachers, employers, parents. These commands are not supported by legal
sanctions of the state. Austin terms them ‘positive morality’ or ‘laws by
analogy’, ‘laws by metaphor’. They are rules set by public opinion or
community values, for example, fashion, codes of honour, international
law, constitutional law. Breach of this type of law entails merely
disapproval of those who continue to uphold it.

Austin contends that in the broadest sense law is a command which

obliges a person or persons to a course of conduct. Being a command law
must issue from a determinate person or group of persons, with the threat
of displeasure if the law is not obeyed. According to Austin the existence
of law is one thing, its merit or demerit is another. Whether or not it is
conformable to an assumed standard, is a different inquiry. A law, which
actually exists, is a law, though we happen to dislike it, or though it varies
from the text by which we regulate our approbation and disapprobation.
For Austin, ‘command’ is the power and purpose of the ‘commander’ to
inflict punishment should the command be ignored. A command is law if
two conditions are met: the command must be general; and the
commander must owe no obedience to others (given that the sovereign is
illimitable).

Austin’s sanction is a definitive component of commands and is thus

essential to the existence of law. Any disadvantage (including nullities)

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stated by the law qualifies as the law’s sanction. Every law must be
supported by sanction, however small. Austin saw sanction exclusively in
terms of penalties or coercion. He rejected the idea that sanctions could
consist of rewards because, in his view, reward would imply a promise or
an inducement, and not a command which indicates non-optional
conduct. Austin’s sanction thus invests the law with a despotic
omnipotence.

Austin conceived of an unfettered sovereign not subject to law, of an

unlimited sovereignty. He analyzed sovereignty as consisting of two
elements. The first element is that the bulk of society habitually obeys or
submits to a ‘determinate and common superior’. In the absence of this
element the situation on the ground would be either one of anarchy or of
revolution. The second element is that the superior is not itself in a habit
of obedience to any determinate human superior. A sovereign cannot
impose commands on himself because obedience to him is a matter of his
own will and he may disregard his own will at any time.

Clearly, Austin’s idea implies a despotic sovereign for, he espouses not a

theory of the Rule of Law (the idea that governments are subject to law),
but rather a theory of government by men wielding law as an instrument
of power. Austin was convinced that democracy was a system vulnerable
to control by despots and mobs. He saw the sovereign as the ‘creator and
not the creature of law’. Every supreme government, he asserted, is
legally despotic.

Facing the issue of judicial law-making Austin argued that the judge is a
delegate of the sovereign. In his view the judge is merely a minister of the
sovereign and in so far as he makes law, his law-making role is

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necessarily and essentially not different from that of other delegates of
the sovereign (such as parliament) entrusted with rule-making functions.

Austin’s approach to law became known as Analytical Jurisprudence

because he emphasized analysis as the chief tool of jurisprudence.
Analytical jurisprudents argue that logical consistency is the sole end of
law. The fact, however, is that law does not exist for the purpose of
consistency; for many a rule that is theoretically anomalous is founded on
sound views of public policy.

Section 2 Law as a science

A. Bentham and the ‘Science of Legislation’

Bentham rejected natural law doctrine. He took the view that law would
be better understood if it were treated as an autonomous field of study de-
linked from all issues of morals and religion. He maintained that ‘law as
it is’ differed from ‘law as it ought to be’. Each constituted a distinct field
of study.

Benthan coined the term ‘expository jurisprudence’ (exposing or stating

or analyzing what the existing law is) for the field of law which deals
with ‘what law is’ without regard to its moral or immoral character; and
the term ‘censorial jurisprudence’ (the science of legislation or law-
making) for the field of study that deals with ‘what law ought to be’. For
him the science of legislation was really a branch of morals, being the

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principles upon which men’s actions were to be directed to the greatest
quality of possible happiness by rules of a permanent kind, as
distinguished from private morals, which are directed only to oneself.

Scornful of natural law, Bentham pointed out that whether a given rule
can be qualified as ‘law’ within a given state is a purely juristic question
to be decided by those criteria which the particular legal system accepts.
Accordingly, in deciding whether a given legal rule is valid or not, the
point whether it is a ‘good’ or ‘bad’ rule is irrelevant because that is a
moral question which does not deprive the legal rule of its validity.

He argued that morality must be separated from law when the issue arises
whether a given law is valid or not. A law is valid if it satisfies the legal
criteria accepted by the particular legal system, and whether such a law is
‘good’ or ‘bad’ is beside the point. Criticism or disobedience of law
repugnant to natural law or objectionable to individual conscience is a
separate matter. Natural law cannot invalidate a conflicting rule of
positive law.

Bentham was not asserting that law and morals are unrelated. Nor was he
saying that a bad law is just and must be obeyed. For Bentham the
badness or goodness of any given law was to be determined by the
principle of utility. If the law maximized the greatest happiness of the
greatest number of people, then it is a good law. To him, a bad law does
not cease to be legal because of its moral iniquity. However, whether
such a law should be obeyed is a question to be left to the conscience of
each citizen.

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Racist, oppressive and discriminatory laws are fundamentally immoral. A
natural law jurist would submit that such ‘laws’ are not laws at all in any
fundamental sense and that therefore there is no obligation to obey them.
But a positivist would argue that the laws in question are indeed laws but
that he would not obey them because he believes them to be wrong.

Furthermore, whereas the naturalist would argue that the judge should
refuse to apply unjust laws as being invalid (and therefore not law at all)
the legal positivist would submit that the judge’s duty under the law is to
apply the law. Even if he is convinced of the law’s moral
unconscionability he is not to let his moral duty conflict with his legal
duty. What action the judge should take in such a situation would be a
matter of his own conscience. If he feels sufficiently revolted by the bad
law, he could, presumably resign his judicial office and so save himself
the moral agony of having to apply such a law; but he cannot invalidate
an otherwise duly enacted law on account of its moral iniquity.

B. Austin and the ‘Science of Positive Law’

By the nineteenth century pure science and scientific method were

already enjoying a great deal of prestige. They were already exerting
considerable influence on other fields of study. Influenced by the
methods of the pure sciences, scholars began to advocate the
development of such subjects as sociology, anthropology and psychology
along scientific lines.

Many jurists too became persuaded that legal theory could and should
also be capable of development on scientific bases. Legal scholars who

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canvassed these views came to be known as legal positivists. They argued
that the only proper way of gaining adequate legal knowledge was to
adopt the scientific method whereby reality is investigated by observation
and its theories subjected to empirical tests. To legal positivists therefore,
a priori knowledge and metaphysical questions are invalid because they
are not matters that can be subject to observation and to empirical test.

Auguste Comte identified three steps in the development of man’s

approach to the world: theism (belief in cosmic forces, the supernatural),
metaphysics (philosophical theorizing about the world and the nature of
existence) and finally positivism (focus on facts provable scientifically
rather than on speculations). To assist in the attainment of the positivist
step, Comte invented the ‘science of sociology’ devoted to the study
along scientific principles, of man and his activities in society. His
positivism was a philosophical system recognizing only non-
metaphysical facts and observable phenomena, and rejecting metaphysics
and theism

The main thrust of positivist theory was that legal theory could and
should be developed on scientific lines. Already, in his new science of
legislation Bentham had shown how the principles of utility could be
developed in a scientific spirit and applied to the problems of criminology
and of criminal and civil law. Later, Bentham’s disciple John Austin
talked of ‘the science of positive law’.

Austin’s science of positive law distinguished between man-made law as

it actually is, positum, and law as it ought to be. Man-made law as
actually found constitutes positive law and forms the real subject matter
of ‘the science of positive law’. On the other hand, law as it ought to be

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constitutes a separate subject of its own; a subject to be investigated not
by the jurist but by the theologian or the student of ethics. Austin’s
science of positive law developed very largely on the lines of an analysis
of fundamental legal concepts. This was a purely conceptual and
analytical attitude towards legal theory.

Positivism is today associated with the love of order; for, positivists set
out to clarify legal concepts and to present them in an orderly manner.
Positive law is conceived as a science of systematization: use of
techniques such as definitions, legal concepts, legal categories, fictions,
and legal classification. It is also apprehended as a science of
interpretation. The necessity for this arises because most words do not
have a fixed meaning, because of the poverty of language and expression,
poor or ineffective draftsmanship, and the need to apply abstract legal
rules to concrete cases. Legislation or law-making in a set form by an
authority may also be approached in a scientific manner: determination of
the social need for laws (i.e. adopting a legislative policy), adopting a
drafting policy and style, doing the actual drafting, and deciding whether
to legislate by creating new legal categories or by reference to pre-
existing categories.

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 Chapter Six

The Pure Theory of Law

The theory of pure law originally represented a revolt against those

ideological types of jurisprudence which were evolved as mere
instruments of government in totalitarian states.133 It is associated with
the ‘Viennese school’ of which the chief exponent was Professor Hans
Kelsen (1881-1973), an Austrian-American. Kelsen was the ‘purist’ of
legal thinkers’. His thinking is expressed in his book, The Pure Theory of
Law, published in 1967.

Kelsen excludes the investigation of anything which might be construed

as foreign to the essence of law. He maintains the separability between
law and morals. He argues that a science, in order to be a science, must
have its own unique framework of reference. In his view, concepts and
methods that cloud pure legal theory should be eliminated.

He relentlessly attacks ideology in legal theory. He also attacks natural

law theory as another aspect of ideological teaching. He sees law as a
‘science’, that word being used in the Kantian notion of science as a
system of knowledge, or ‘totality of cognition’, arranged according to
principles. Kelsen describes the science of law as ‘pure’ (rein). He insists
that law properly so called must be kept unspotted from elements which
merely confuse and contaminate it. A theory of law must be free from
ethics, politics, economics, sociology, history, and so on. In other words,
a theory of law must be ‘pure’; it must be purged of all variable factors
133
Allen, p. 52.

173
which will make its general application, at all times and in all places,
impossible.

In order to achieve this difficult goal of keeping law ‘pure’ Kelsen draws
insight from Immanuel Kant’s system of Pure Reason. Kant drew a clear
frontier between the domain of the Sein (the ‘Is’) and of the Sollen (the
‘Shall Be’). Kelsen therefore postulates that law exists solely in the world
of Sollen, and that every legal principle is therefore that kind of rule
known as a norm.

In Kelsen’s view there is a distinction between propositions of law and

propositions of science. Propositions of science, he asserts, relate to
events which have been observed to occur and which necessarily occur as
a matter of cause and effect. For example, the sun rises from the East and
sets in the West; the river flows up stream down stream; a branch severed
from a tree falls to the ground in the absence of any support. Propositions
of science are therefore is-propositions; they deal with what necessarily
happens. Propositions of law, on the other hand, are normative rules and
deal with what ‘ought’ to occur or to be: if X steals he ought to be
punished. As used by Keksen the word ‘ought’ does not refer to the moral
‘ought’, but means ‘required’ or ‘commanded’.

A theory of law must be concerned with the actual and not with the ideal
law. It must be distinguished from the law itself. The law consists of a
mass of heterogeneous rules. The function of a theory of law is to relate
this mass of heterogeneous rules in a logical patter and to organize them
into a single logical whole. Kelsen’s theory of law is positivistic and
claims to be ‘pure’ because it strives to purge juristic theory of many
elements which it believes to be mere adulterations.

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Section 1 Kelsen’s Normativism

Law, Kelsen says, is essentially a normative science, a ‘science of

norms’. The essential characteristic of a ‘norm’ is that it is something
hypothetical or ‘relative’. The ‘norm’ depends on a certain initial
assumption which does not arise out of the necessities of nature but is laid
down by an operation of human will and reason. Thus assuming that
man’s own will and reason create the general proposition that it is
unlawful to do X, then, Y must follow as a consequence.

“This is the world of the Sollen, and in that world norms are the
elaborated rules of what human will and reason say shall be. In the world
of the Sein, of the natural observed phenomena of physical existence, it is
quite otherwise. The scientist who observes and records phenomena
makes no initial assumption; and, so far as he is pre-occupied with laws
or rules at all, they are laws of induction, concerned not with what must
or shall be, but only with what will be. An apple parts from a tree; it will
fall to the ground by the forces of nature, and not because any process of
human will or reason had decreed, antecedently, that it shall or must fall.
Thus the ‘laws’ of natural science are … laws merely ‘by analogy’, and
are ‘improperly so called’. The norms in the realm of Sollen are wholly
different in origin and nature, resembling ‘improper’ laws solely in the
attribution of uniformity.”134

To Kelsen, jurisprudence is knowledge of ‘norms’. A norm is simply a

proposition in hypothetical form. For example, if A happens then B
134
Allen, p.53.

175
should happen. Jurisprudence consists of an examination of such
normative propositions. A great many ‘sciences’ besides law are
normative (e.g. philosophy, logic, economics). But the dividing line
between law and other social sciences, the distinguishing mark of law, is,
as Austin said, the element of compulsion.

Kelsen distinguishes between what he calls a ‘dynamic system’ and a

‘static system’. A dynamic system is one in which fresh norms are
constantly being created on the authority of an original, or basic, norm. A
static system is one which is at rest. It is at rest in that the basic norm
determines the content of those norms derived from it in addition to
imparting validity on them.

A. Law as a Hierarchy of Norms

To Kelsen, law operates as a hierarchy of norms; that is to say, a series of

norms set out at various levels of generality and subordination, the
highest norm being the most general and therefore the most abstract. Thus
norms of a lower level are increasingly concrete in their form and
application. In the hierarchy of norms each norm derives its validity from
the valid norm one step before it. What this means is that the validity of a
norm depends upon whether it was made in terms of a higher valid norm.
For Kelsen, the law regulates its own creation: the creation of legal norms
is authorized by other legal norms; and by means or a process of
‘concretization’ norms become more and more specific.

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So, every legal norm is validated by another prior valid norm higher in
the hierarchy of norms. The norms go through a process of
concretization, with each lower norm being more concretized. These
norms can be traced back to the highest norm in the hierarchy of norms,
an initial norm which Kelsen denoted as the Grundnorm. The Grundnorm
is the starting point of the chain of legal norms. It is at the apex of the
hierarchy of legal norms. It is the original source of authorization for the
decisions and actions taken throughout the system, down to its lowest
level. For as long as there is continuity in the existing legal order, for as
long as there is no revolution such that there is a change or break in the
legal order, the Grundnorm does not change.

The Constitution is itself a norm. The Grundnorm operates from a higher

point, that is, one step further back, and gives validity to the Constitution,
including the constitution-making process. The Grundnorm gives validity
to the Constitution; the Constitution gives validity to the next norm
immediately below it (Act of Parliament), which in turn gives validity to
the next norm immediately below it (Statutory Instruments), etc. Thus,
the closer a norm is to the Grundnorm, the more abstract it is; the further
away it is, the more concrete it is, the lowest norm being the most
concrete.

Kelsen thus conceives the entire body of law as a pyramid, a pyramid of

laws (Stufenbau des Rechts), ever mounting up from the basic norm; or,
to reverse the metaphor a ‘hierarchic structure’ of law descending from
the supreme positive norm to the smallest manifestations of it. “Each one
of these acts of deduction and application is a creative act, and the whole
juridical order is thus a coherent system of progressive delegation

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(Erzeugungszusammenhang); and by this process of ‘concretization’ …
the law is rendered perpetually ‘self-creative’.”135

B. The Grundnorm, the Norm of Norms

Kelsen posits that in all civilized states it is possible to trace one’s way
back to a basic, fundamental norm, the Grundnorm, the Norm of Norms;
a grand, indispensable postulate to which all the roads of law lead, by
however devious routes. In other words, in every legal order a hierarchy
of ‘oughts’ (that is, commands) is traceable to some initial, fundamental
‘ought’ on which the validity of all the others ultimately rests. In the
modern state, the Grundnorm is to be found in a written constitution.
Every rule of law, Kelsen maintains, derives its validity from some other
rule standing behind it. The Grundnorm is the ‘initial hypothesis’, he
said. It validates and authorizes the creation of all legal rules. One cannot
account for the validity of the Grundnorm by pointing to another rule of
law.

Since the Grundnorm is not traceable to any other norm, its validity is
presumed. In Kelsen’s view the validity of the Grundnorm must be
assumed as long as the norms constituting the legal order remain
effective. The validity of the Grundnorm thus depends upon its efficacy,
and whether or not the Grundnorm is efficacious depends on whether or
not officials carry out its directions.

So what then is the Grundnorm? Kelsen informs us that it is the

‘historically first constitution’, but that it is not the same thing as the
135
Idem., p.58.

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constitution. What then is ‘the historically first constitution’? Kelsen says
it is often just that; it is history; it is a presupposition of the validity of the
constitution or a ruler; it is a fiction. Indeed, Kelsen describes the
Grundnorm in his later writings as ‘a fiction’.

The historically first constitution may involve a number of constitutional

amendments, but not revolutionary discontinuity. Should revolutionary
discontinuity occur, a new Grundnorm will be established. “The
historically first constitution is thus the starting point of the constitutional
order by virtue of being written upon a political tabula rasa or by the
enforced fresh beginning of a revolutionary overthrow.” (Blerk, 48) The
validity on which the historically first constitution rests is merely that the
new document ought to be obeyed. That obedience, an indication of the
efficaciousness of the laws of the new regime, is usually apparent from
the existing military and political reality.

Kelsen’s thesis is that when a revolution occurs, the legal system of a

country is radically altered, that is, overthrown. The constitution valid
until then is replaced with other laws promulgated by the revolutionaries.
There is an enforced fresh beginning. The success of a revolution results
in a new Grundnorm, its validity depending on its efficacy. That efficacy
itself depends on whether the constitution set in place by the new regime
is obeyed by the people and enforced by the courts.

“Revolutions present judges with grave dilemmas. A judge who carries

out the directions of a new regime assists its efficacy, and if those
directions happen to be morally reprehensible, such a judge also violates
his conscience. However, a judge who refuses to co-operate with the
decrees of a new regime with a view to inspiring fellow judges of the old

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order to resist the new regime and hinder the growth of its power places
himself in a dangerous position. Revolutionary regimes are often
indifferent to the disapproval of the judiciary, and if the judiciary should
prove unaccommodating, they are simply replaced – by one means or
another – with more compliant members of the profession. Although the
case of Madzimbamuto v. Lardner-Burke [1968 2 SA 284 (RA)] suggests
that the effectiveness of a revolutionary regime is dependent upon the
willingness of the judiciary to implement its enactments, the truth is, as
Dias says, ‘judges sitting under the power of a regime may have little
alternative but to accept it as legal; those who refuse will be replaced, or
their judgments will be nullified’. There may indeed be alternative
choices, but they are not likely to be very pleasant. No revolutionary
regime has ever surrendered its newly won power for the sake of a
judge’s unhappy conscience.”136

A revolution normally occurs when there is a revolt or rebellion against

the status quo. The legal order valid until then, including the constitution,
is swept away. The revolutionary change does not however mean that all
the laws of the old legal order (the earlier regime) have changed. It is
common for the main body of the old laws to continue unchanged. For
example, there may be no loss of continuity in the civil and criminal law
after a coup d’état or insurgency takeover. Nevertheless, what has
changed is the Grundnorm: all the laws of the new regime impliedly
decreed (by not revoking the old law) and expressly decreed ought to be
obeyed.

The new constitution that is put in place following the revolution derives
its validity not from some other norm but from the revolution, a
136
Blerk, pp.50-51.

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momentous historical event. The revolution is then the Grundnorm. If the
revolution fails the revolutionaries become rebels and liable to
imprisonment for treason under the legal order they attempted to
overthrow. The revolution having failed the existing legal order remains
intact; the existing constitution remains and the status quo continues.

Kelsen’s Grundnorm theory has the purpose of uniting the legal system
by tracing the validity of the entire hierarchy of norms to this single
source, showing that the norms are all part of the same legal system and
constitute its unity.

The theory has not escaped criticism. If the Grundnorm is the

‘historically first constitution’, which is itself said to be history, then the
Grundnorm cannot be a fiction because history is not fiction. History is
real. That is why the Historical School of jurisprudence looks at law in
the light of the historical background of society.

The history of any society can be traced to a period when there were no
‘legal’ rules, a period that Hart refers to as the ‘pre-legal society’ when
human beings were guided by rules which only imposed duties (‘primary
rules’). With time the ‘primary rules’ became supplemented by
‘secondary rules’ (rules that confer power). It is at this stage that society
became a legal society. So, the history of a people is the foundation or
source of its legal system. This history is prior to any contemporary legal
system. Whatever legal system that is in existence is traceable from the
history of that society. This history (on which any contemporary legal
system is founded) is the Grundnorm. It is from this foundation that a
society’s values which are contained in a constitution are drawn. The
Grundnorm is therefore not a fiction.

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Before independence a colonial legal order obtained in dependent
territories. That legal order came to an end with the demise of colonial
rule. The elimination of colonial rule was a revolution which brought
about a new social, political and legal order. This new order brought with
it the Independent Constitution. Since then the document has simply
undergone amendments and revisions. Thus, even from this perspective
the Grundnorm is not a fiction. The Independent Constitution is the
historically first constitution in the new legal order which came into being
after colonialism had been done away with.

The Kelsenian picture of international law is often presented as an

example of the artificiality of the Grundnorm theory. Kelsen insists that
international law is essentially a ‘juridical order’, that it lacks most of the
characteristics of ‘law properly so-called’, and that it is a type of, or at
least an analogy to, primitive law still evolving. This is an unconvincing
similitude, says Allen, for analogies of this kind are good servants but bad
masters and apt to confuse similarity with identity137.

Section 2 Kelsen, Sanction and Democracy

A. Sanction

Kelsen was in agreement with Austin that sanction is a crucial feature of

law. However, both jurists differed in the elaboration of this idea. Kelsen
rejected Austin’s command theory of law on the ground that it introduces
a psychological element into a theory of law which, in his view, should
137
Allen, p. 60.

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be pure. To Austin, sanction is something outside the law which imparts
validity to it. But Kelsen argues that the distinguishing characteristic of a
legal rule is not that it is a rule the efficacy of which is brought about by a
further rule which provides for a sanction. It is rather, he claims, the fact
that the legal rule provides for a sanction; it stipulates that the sanction
shall be applied.

B. Democracy

Kelsen’s pure theory excludes, among others, political considerations

from legal theory. This necessarily means that Kelsen does not subscribe
to Austin’s conception of law as the expression of a supreme political
sovereign. Moreover, Kelsen’s doctrine of the hierarchy of norms
represents a refusal to recognize the state as an entity standing above law
and creating law, the state being considered as merely part of the legal
order itself.

“As Cotterrell reminds us, Kelsen said that while a citizen, in his
individual capacity may not coerce, dominate or kill another individual,
he may do all these things ‘in the name of God, the nation or the state,
which for that very reason he loves, and lovingly identifies as his God.,
his nation and his state’. Kelsen further remarks, that when the masks of
political office are removed, what we see is not the impersonal action of
the state ‘condemning and making war’, but human beings coercing other
human beings. Cotterrell states that such comments ‘reveal something of
Kelsen’s commitment to political freedom and his hostility to all forms of
autocracy justified by an appeal to an entity-state, God or nation’. In so
far as a legal system authorizes its own creation and application – in the

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sense of one norm giving rise to another - that legal system is more than a
political expression, it is a self-contained structure functioning by its own
inner logic and the idea of the rule of law. Kelsen was wary of the
doctrine of sovereignty precisely because it provides for a supreme entity
above law – in his view, this was dangerous. Within Kelsen’s pure theory
of law, the state’s political authority is a mere derivative of law. The pure
theory of law wipes away the legitimacy of the state as an agent of
repression. ‘It insists that the state is properly seen as merely the effect of
the structure of norms governing the relationships of individual human
beings’.”138

138
Blerk, pp. 52-53.

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 Chapter Seven

Law and the Courts: The Realist Theories

Before the First World War, there emerged on the European continent a
number of jurists who rejected the idea that legal decisions could be
based entirely upon rules of law. They claimed that legal decisions were
essentially a matter of policy and choice. They argued that although the
judge is fettered by rules he is really free to apply those rules as his
caprice, his ideology, or his sense of social need might direct.

The movement that has thus focused on the inner workings of the court
and on the task of predicting the judicial treatment of legal rules and

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principles is generally known as ‘Realism’. The term ‘real’ as used by
Realists is intended to point to the contrast that frequently exists between
law as it seems in its dogmatic formulation and law as it is in its actual
working and effects. Realists, therefore, approached all settled and
traditional doctrines of the law in a spirit of skepticism. They evinced a
distrust of orthodox ‘paper rules’ and stressed factual investigation of the
law’s actual working and results

The name ‘Realist’ in fact applies to two groups of jurisprudents, the

‘Scandinavian Realists’ and the ‘American Realists’. Moved by the zeal
to reform the law in the interest of justice, both Realist Schools are very
skeptical of conventional legal theories. They seek to introduce ‘a sane
and common-sense approach’ to problems of law and about law. With
that end in view they concentrate very much on facts and insist that
sociology and psychology play a prominent part in the courts’
interpretation of law. Their approach to law is sometimes described as
‘radical and iconoclastic’.

But it is so only because Realists depart from the conventional wisdom of

defining and analyzing law and rules. However radical critics might
consider Realists to be, the Realist approach to law is probably closer to
the truth than most jurisprudential concepts of law. Of course, the judge
has to refer to established ‘law’, or at least advert his mind to it, in order
to arrive at a decision. But in many instances he exercises judicial
discretion unrestrained by rules. At any rate, he is the authoritative
interpreter of the law, investing it with the stamp of validity as it were;
and, as it is said, he who interprets the law is ultimately the real law
maker.

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Realists favour the extensive use of psychology in order to limit the
‘human factor’ in judicial decision. Judges are human, not automata and
therefore cannot rid themselves entirely of prepossessions and
idiosyncracies. However, the inevitable intrusion of the human factor in a
legal operation does not mean that judicial determinations are completely
at the mercy of personal vagaries.

Section 1 American Realists

Two main reasons account for the development of ‘realism’ in America.

First, there had developed in the USA an increasing reliance on social
science and technology as a key to resolving the problems of human
welfare. Secondly, there had emerged in that country a philosophy of
pragmatism geared towards the search for the truth. Much of the advance
in legal knowledge in the US soon concerned the forecast or prediction of
judicial treatment of legal rules and principles.

The main trend of the American realist movement was to call in question
legal certainty, to attack conceptualism, and to emphasise those many
influences which produce ‘accidents of litigation’ through the variable
elements of forensic method and especially of judicial technique.
American realism has been described as ‘rule-sceptical’. It placed
emphasis on the behaviourism of judges. This concern must be viewed in
the local setting of the America.

“The influence of judicial decision in shaping the law is bound to be

particularly powerful in a country where, at the very centre, there is a

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Supreme Court which has the responsibility of interpreting the federal
constitution and adapting it to changing conditions; a country, too, which
is the birthplace of the pragmatic philosophy. Again, the conglomerate of
the United States exhibits such a multiplicity both of laws and of
jurisdictions as has seldom existed within a single community; and the
maintenance of what is, despite many disparities, a real cohesion and a
vigorous jurisprudence throughout so vast a system has been one of the
great legal achievements not only of the New World but of legal history.
Diversity, however, inevitably gives rise to special problems of its own.
One of them is that uniformity of principle and of judicial method,
difficult enough to preserve even within a circumscribed legal system,
becomes almost impossible of achievement, and the task of the lawyer in
reconciling and threading his way through the maze of decisions is
perplexing indeed. This situation is complicated by unevenness of judicial
attainment, which ranges from a standard as high as any in the world to
the manifest shortcomings of popularly elected judges. Furthermore, the
scope of judicial discretion, and of what is called on the Continent ‘free
law-finding’, has for long past been wider than in England, which is far
more tenacious of the doctrine of stare decisis – largely, it may be,
because the ascertainment and application of authority does not present
the same practical difficulties as in America, though … those difficulties
are growing.”139

However, the American Realist movement constituted far less a school of

thought than the Scandinavian Realist movement. There was,
nevertheless, a great deal of common ground between them. Both are
skeptical of traditional legal theories. Both contend that it is impracticable
to describe the judicial process or to predict its outcome solely in terms of
139
Allen, p. 45.

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legal rules. Both emphasize the need to examine the content of law and
the interaction of rules, policies and principles within a legal system. In
the view of the American Realists, what matters in law is not so much
what the courts say, as what they do.

The four well-known American legal scholars of the Realist school 140 are:
Mr Justice Oliver Wendell Holmes (18..4-1935), John Chipman Gray
(1839-1915), Judge Jerome Frank (…), and Professor Karl N Llewellyn
(1893-1962).

A. Holmes: law is the prophecies of what the courts will do in fact

Oliver Wendell Holmes, a great American judge and jurist, is the father-
figure in the American Realist School. He put forward a new way of
looking at law. To know what the law is, he said, one should view it
through the eyes of ‘the bad man’. The bad man is only concerned with
what will happen to him if he does certain things. And so in an address in
1897 entitled ‘The Path of the Law’ 141 Holmes made the following
arresting dictum: “The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law.”

That statement reflects the experience of the legal practitioner, for when
advising a prospective litigant the lawyer can do no more than opine what
he believes, or hopes, a court will decide. “If it were otherwise, there

140
A concise exposition of the main standpoint of American legal realism is given in
Max Radin, ‘Legal Realism’, 31 Columbia Law Review, 824.
141
(1897) 10 Harvard Law Review 461.

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would be no legal dispute at all, since an infallible prophecy could be
made simply by reference to the authorities.”142 When Holmes spoke of
‘predictions’ he did not mean that law consists merely of a series of
fortuitous events.

Holmes went on to say that ‘law’ is not a texture of subsisting rules but a
mere technique for predicting what decisions courts of law are likely to
make in particular cases. So, the lawyer must be acquainted not only with
the set of theoretical rules binding on the courts but should also explore
all the sociological and psychological factors bearing upon decision-
making.

He famously observed that: “The actual life of the law has not been logic;
it has been experience. The felt necessities of the times, the prevalent
moral and political theories, intuitions of public policy, avowed or
unconscious, even the prejudices which judges share with their fellow-
men, have had a good deal more to do than the syllogism in determining
the rules by which law will be governed.”

Holmes made an eloquent plea for the study of law as a rational system
based on history, tradition and logic. In his view theory is the most
important part of the dogma of the law. The lawyer’s ‘predictions’, he
said, are valueless unless based on principles diligently sought and
diligently understood. To master the law means to look straight through
all the dramatic incidents and to discern the true basis for prophecy.

B. Gray: law is what judges decide

142
Allen, p. 42.

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Gray drew a basic distinction between law and sources of law. In his
view, law is what judges decide. Everything else, including legislative
enactments (which he defined as ‘the formal utterances of the legislative
organs of the society’), is only a source of law until interpreted by a court,
at which point they then become law. He explains that this is so because
“the courts put life into the dead words of the statute.”

Though essentially an Austinian, Gray in his conception of law thus shifts

emphasis from enactment of the law to its enforcement. He defines law
by reference to the court. Basing himself on the dictum of Holmes that
“the prophecies of what the courts will do in fact and nothing more
pretentious are what I mean by the law”, he argues that law is only what
is recognized and enforced by the courts. Accordingly, Gray denies the
name of law even to a statute until it has been used as a basis of decision
by a court.

“The law of a State or of any organized body of men”, he wrote in The

Nature and Sources of Law (1921), “is composed of the rules which the
courts – i.e. the judicial organs of that body – lay down for the
determination of legal rights and duties.” Gray thus recognizes precedents
as a source of law but then refuse the name ‘law’ to statutes and customs
until both become precedents by being embodied in judicial decisions. It
follows logically that according to Gray precedents alone are law.

C. Frank: law is simply a matter of judicial intuition

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Frank observed that the picture one gets by studying exclusively the work
of appellate courts is different from that derived from a study of trial
courts. Beale, an American jurist, had contended that there is a difference
between rules and judicial decisions. The law, Beale had maintained,
consists of rules and that a judicial decision cannot, in any sense, be the
only law since the decision is given by virtue of a rule.

Frank attacks this notion. He argues that if judgments were given

exclusively by virtue of rules then the forecast of judgments would be
easy; and if that were the case, then no one but litigious maniacs would
ever go to court. Moreover, he pointed out, even where there is some rule
which can be applied two opposite conclusions are perfectly possible.
Frank therefore submitted that law cannot be divorced from judicial
decisions. Law is not, in the words of Holmes, a “brooding omnipresence
in the sky.”

Frank divided American Realists into two camps: those he called ‘rule
skeptics’ and those he termed ‘fact skeptics’. ‘Rule skeptics’ are those
who maintain that legal rules do not provide uniformity in law. ‘Fact
skeptics’, among them Frank himself, are those who have abandoned all
attempts to seek certainty in rules.

‘Fact skeptics’ point to the uncertainty of facts themselves established in

trial courts. First of all, facts have to be established largely by witnesses.
But witnesses are fallible and may lie. It is impossible to predict with any
degree of certainty how fallible a particular witness is likely to be, or how
persuasive he will lie. In the second place, all persons, judges and juries
alike, form different impressions of the drama unfolded before them; an

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inflexion or a cough may awaken subconscious predilections, varied
idiosyncrasies and prejudices.

In his Law and the Modern Mind (1930) he traced what he called the
‘child-like’ quest for legal certainty to what he called a ‘father-complex’.
Frank suggested that the quest for certainty in law is in effect a search for
a ‘father-symbol’ to provide an aura of security. He called on lawyers to
outgrow this “childish longing for a father-controlled world.”

Frank also claimed that law is simply a matter of judicial guesswork,

judicial intuition, or ‘hunch’. But judicial intuition is not just the lucky
guess of the moment. It means the product of the intimacy with what
Roscoe Pound called ‘the taught tradition of the law’.

D. Llewellyn: law is a means to social ends

Professor Karl Llewellyn shifts attention to the behaviour of law officials

and especially to the actions and the pronouncements of judges. He is
interested not only in what judges say, but also in what they really do. It
is the doing that really counts, he said. He maintains that there has to be a
conception of law in flux and of the judicial creation of law.

To him, law is a means to social ends. Every part of law, he said, has
constantly to be examined for its purpose and effect, and to be judged in
the light of both and their relation to each other. Llewellyn pointed out
that society changes faster than law and that therefore there is a constant
need to examine how law meets contemporary problems.

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Llewellyn summed up the realist movement as ‘ferment’. “Fermentation
is necessary in legal chemistry, for without it the liquor of the law
becomes sour and stale. Grown out of its youthful exuberances and
disabused of its hasty conclusions that law is to be found only in facts and
deeds, [the realist] movement brings to modern jurisprudence a spirit of
vigilance and exploration which is capable in the right hands of
contributing substantially to the understanding of law not as a bloodless
abstraction but as a living force in society.” 143

Section 2 Scandinavian Realists

The Scandinavian realist movement was based principally on the teaching

of the philosopher Professor Axel Hägerström, the movement’s spiritual
father to whom all the writers of this persuasion acknowledged their
indebtedness. While American realism was ‘rule-sceptical’, Scandinavian
realism was ‘metaphysics-sceptical’, for it insisted vehemently on
dissociating all legal phenomena from metaphysics. Again, while
American realism focused on the behaviourism of judges, Scandinavian
realism emphasized the exorcising of metaphysics.

143
Idem., p. 48.

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Scandinavian realists adopted a more philosophically-based skepticism.
They rejected earlier approaches to legal analysis as based on
metaphysics or as amounting to imagination or nonsense. They claimed
that the notion of a valid rule is something which exists in the
imagination only. To them, the sociological background of legal rules has
to be explored.

They explained valid law within a given community as being a prediction

of what the courts will probably decide in particular cases. If a law cannot
lend itself to such a prediction then it is invalid. Scandinavian realists
insisted on the need to investigate the actual way in which the various
forms of judicial and administrative processes function. According to
them, this must not be limited to a mere study of the paper rules that
ostensibly bind and guide judge and officials.

The four best-known Scandinavian Realists are: Professor Axel

Hägerström (1868-1939), Karl Olivecrona (1897-1955), Alf Ross, and
Professor A V Lundstedt (1882-1955).

A. Hägerström: law as a ritualistic exercise

Although he was not a lawyer but a philosopher, Hägerström’s attention

was directed to law and ethics as particularly fertile sources of
metaphysics. He set out to contribute towards the emancipation of legal
science from mythology, theology and metaphysics. Hägerström
contended that it is the aim of philosophy to liberate the human mind
from the phantoms of its own creations. Legal thinking and language
abound with such sham concepts. Moreover, law is a ritualistic exercise

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with ritual symbols and beliefs: the oath, the gown, the wig, the wedding
ring, the ‘sealing’ of a document, swearing an affidavit, the ceremony of
being called to the bar, the use of legal words to produce certain desired
results (what Olivecrona calls ‘performatives’, ‘the language of magic’)
such as the ‘I do’ said during a marriage ceremony or the ‘I so do swear’
said during a swearing-in ceremony upon a person assuming some high
office.

In his Inquiries into the Nature of Law and Morals (1953)144 Hägerström
argues that objective values do not exist. ‘Goodness’ and ‘badness’, for
example, do not exist in the world. Those words represent simply
emotional attitudes of approval or disapproval respectively towards
certain facts and situations. It is only language form that has erected them
into absolutes and has given them an objective existence. Similarly, the
word ‘duty’ only expresses an idea, the association of a feeling of
compulsion with regard to a desired course of conduct. Again it is only
language form that gives it an objective appearance.

Accordingly, Hägerström denies the possibility of any science of ‘ought’.

All questions of justice, aims and purposes of law are matters of personal
evaluation and not susceptible to any scientific process of examination.
Hägerström insists that the actual use of legal terms must be examined
and the mental attitudes involved psychologically analyzed. He
considered metaphysics to be largely derived from primitive ‘magic’. One
of Hägerström’s main works dwelt on the Roman law of obligations and
there, according to his followers, he emphasizes the element of
superstition and ‘magic’ in the development of Roman law.

144
Extract in Freeman, 872-877.

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 B. Olivecrona: law as a process of psychological conditioning

Olivecrona rejected ‘judicial idealism’ and ruthlessly slaughtered many

traditional legal notions, dismissing most theories of law as simply ‘a
persistent infantilism’ 145. To him, rights were ‘imaginary’ or ‘fictitious’
because they are mere abstractions until tested and adjudged by legal
process. Kelsen’s Grundnorm was an utter surrender to speculative
metaphysics. Stare decisis was an illusion. Customary law was only a
form of ideology. Roscoe Pound’s ‘social engineering’ was a chimera.

For Olivecrona, as for Lundstedt, a legal norm is a ‘directive’ not to the

community but to judges and administrators. Law is not the creation of
the State, for the mere existence of the State or the community
presupposes law. Legislation does not operate with any binding force; it
simply makes enacted law psychologically effective, by the use of a
certain form which has a grip on the minds of the people. There is no
ethical content in law; on the contrary, morals are created by the law
itself.

The idea that there are rules of law and that these are ‘binding’ upon us is
a mere fantasy created in our minds by various superstitions and magical
beliefs of the past. Law is nothing other than a lot of words written on a
piece of paper. These words serve to evoke on appropriate occasions all
kinds of thoughts, recollections, and notional patterns of conduct which
may influence our actual behaviour.

145
Allen, p. 50.

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Law is in effect no more than a form of psychology, since it is really a
symbolic expression for the fact that the human mind responds in
particular ways to certain kinds of social pressures. Olivecrona therefore
reduces law to nothing more than a process of psychological
conditioning. He was able to arrive at this deduction from the discovery
that concepts such as law or legal obligations are not mental constructs
and do not correspond to some perceptible physical entity.

Law, he asserted, was nothing but a set of social facts.

“The rules of law are in no sense the will of the State, or indeed the will
of anything or anybody, in the sense of commands, but are ‘independent
imperatives’ … issued from time to time by various constitutional
agencies; and their sole effect is that they ‘operate on the mind of the
judge’ and lead to certain applications of the law which are the facts of
the legal system. The business of ‘doctrinal jurisprudence’, which is the
only true kind of jurisprudence, is simply to discover and expound,
without value-judgments, the rules ‘for the establishment and functioning
of the State machinery of force’. All a priori notions, and especially those
of such ideologies as natural law and abstract justice, must be banished
from any estimate of the ‘validity’ or the ‘binding force’ of law. Its
validity is to be estimated solely by its existence as a social fact, which
attracts the force-machinery of the State.” 146

The ideas of Olivecrona are developed in his Law as Fact (1939)147.

146
Idem., p. 49.
147
Extract in Freeman, pp. 877-885.

204
 C. Ross: propositions of law and about the law

In his book, Towards a Realistic Jurisprudence (1946), Alf Ross

distinguished between the law actually in force and statements in books
about law (i.e. sentences in a textbook where the law in force is stated).
The law actually in force is prescriptive; statements in books about law
are assertions or descriptions, propositions not of law, but about the law.
The doctrinal study of law (i.e. the study of the rules of an actual legal
system) is normative in the sense that it is about norms, but it actually
consists of assertions. These assertions state or purport to state what is
valid law and one of the first problems of jurisprudence is to elucidate
this concept.

Ross confined his description of law to an individual national system of

norms. He conceived of legal norms as directives primarily to the courts
or judges and only secondarily to a people who are generally subject to a
system of law. Like Olivecrona, Ross maintained that laws are to be
interpreted in the light of social facts. Influenced by logical positivism,
Ross regarded the doctrinal study of the law as an empirical social
science

In On Law and Justice (1958)148 he also addressed his mind to the

problem of validity of laws. Valid law, he argued, rests on the
predictability that a judge would act according to the norm in question.
Ross, like Olivecrona, stresses the multiple uses of language. The
148
Extract in Freeman, pp. 890-893.

205
multiple functioning of language and the psychological realities of beliefs
and feelings are offered as the main elements in the explanation of legal
rules and their validity. Ross considers legal enactments as “directives
geared to influence behaviour”. He “distinguishes different categories of
speech: the indicative, the directive and the emotive, and shows how law
regulation makes use of all three”. Olivecrona on the other hand
“differentiates two types of legal language: the technical and the
performative, one passive, one creative.” 149

Following Hägerström, Ross considered metaphysics to be largely

derived from primitive ‘magic’. He regarded legal phenomena simply as
social facts, ascertained by empirical science. He asserted that legal
notions must be interpreted as conceptions of social reality, the behaviour
of man in society, and as nothing else. Ross thus reduces all positive law
to a social technique. Every method of reasoning which is not purely
empirical becomes valueless and illusory, as based on a priori
preconceptions for which there is no scientific basis. Ross’s dictum is that
“all metaphysics is a chimera and there is no cognition other than the
empirical.” Ross dismisses the whole notion of ‘social welfare’ as being
metaphysical and therefore empty.

D. Lundstedt: law as a fact of social existence

Professor Lundstedt saw law as the fact of social existence in organized

groups, and as the condition which makes possible the co-existence of
masses of people. Lundstedt attacked metaphysical ideas. He argued that
nothing is valid which cannot be proved as fact. He dismissed traditional
149
Idem., p. 865.

206
concepts of law as emotive reactions or mirages of language. For him,
“jurisprudence must be a natural science, based on observation of facts
and actual connections, and not on personal evaluations or metaphysical
entities.”150

He appears to identify everything normative with the metaphysical and so

rejects it on that account. To him, legal rules are no more than labels
which, torn from their context of legal machinery, are merely
meaningless scraps of paper. Legal rules are furthermore “no more than
procedures for achieving a particular purpose … in exactly the same
sense as engineers or sailors have recognized procedures for constructing
buildings or conducting navigation. These latter … [are] not call[ed]
‘rules’ and there is no need to speak of ‘rules’ at all.”

But, as Freeman points out, “this is a false analogy, since legal rules are
normative, whereas the latter are purely instrumental, i.e. they tell us how
in fact how we must act if we want to achieve a certain effect. Where the
latter are also normative, we do describe them as rules, e.g. rules
governing sport, navigation, the use of highway, etc.” 151

Section 3 Post-Realism152

Although Realism suffered some decline, it gave birth to a number of

movements collectively described as ‘post-realism’: jurimetrics, judicial

150
Idem., p. 870.
151
Idem., p.859, note 32.
152
Idem., pp. 813-820.

207
behaviourism, pragmatism in law, and legal process. These movements
are firmly established within the mainstream of the social sciences, and
use techniques associated with them.

A. Jurimetrics

Jurimetrics 153 stands for the scientific investigation of legal problems154,

especially by symbolic logic, by the use of mathematical techniques in
the trial process, and by the use of computers 155.

“There have been experiments with computers to investigate such

questions as the different ways in which a judge and a jury may decide
the same case, the effect that the formulation of the legal rule as to
insanity may have on jury verdicts, the reliability and credibility of
testimony, and, more especially, the particularly realist preoccupation
with the prediction of judicial decisions. Work has also been done on the
question how far patterns of consistency or regularity may be shown to
exist in relation to a large number of judicial decisions in a particular
legal field. It has even been suggested that the day may come when
defendants will be given the choice of trial with the aid of a computer.” 156

Thus, Beutel in Experimental Jurisprudence (1957) sees in the distant

future the development of methods of scientific prediction that may take

153
The term is said to have been introduced into legal vocabulary more than half a
century ago.
154
See, Hans Baade, Jurimetrics (1963).
155
See, C Tapper, Computers and the Law (1992).
156
Freeman, p. 814.

208
over the direction and control of human values. Critics of jurimetrics
however point out that there are dangerous ideological and political
implications in allowing legal inquiries to be conducted by machines
rather than judges or administrators. But advocates of jurimetrics deny
that jurimetrics aims at eliminating reason from jurisprudence.

“Defenders of jurimetrics respond that its aim is not to eliminate reason

or philosophy from jurisprudence or to find a substitute for necessary
values which are an intrinsic part of law making. All that this particular
type of investigation is concerned with is those matters which are capable
of being subjected to quantitative or probability assessments, and which
can produce results capable of being scientifically verified or tested.” 157

B. Judicial Behaviourism

Judicial behaviourism developed in the 1960s, borrowing from realism,

political science, and to some extent sociological jurisprudence. “From
realism it took the faith that judicial behaviour was predictable and the
aim of developing means of predicting decisions. From political science it
took such techniques as scaling and small group psychology.”

The work of judicial behaviouralists tends to focus on multiple courts and

majority decisions, thereby limiting themselves to contentious appellate
decisions. Attempts have been made to correlate the attitudes and
backgrounds of judges with their voting records of the bench. Attempts
have also been made to trace the development of blocs among judges, the

157
Idem.

209
emergence of judicial leadership and interaction, and bargaining
problems158.

One behaviouralist, Glendon Schubert, has been concerned with

motivations behind judicial decisions, particularly with attitude. [Judicial
Behaviour (1964)] He advances the thesis that judges do not agree or
disagree because they reason in similar or different ways, but because
they have similar or dissimilar attitudes. He believes he can elicit the
reaction of judges to fact-patterns by looking at their previous decisions.
He hypothesizes that a recurrence of fact-patterns will stimulate a similar
response.

Freeman’s criticism of Schubert’s thesis is that it ignores judges’

common training and environment, the ‘taught tradition of the law’, and
institutional factors such as stare decisis. Similarly suspect, says
Freeman, is Schubert’s method of discovering the attitude of a judge. His
hypothesis reduces the judge

“to little more than a conveyor belt to which materials are fed and
identical products emerge. It is also to adopt an over-mechanical concept
of causation … Furthermore, the facts upon which Schubert concentrates
are not the ‘facts’ at all, but a distillation he finds in the judicial opinion.
These are not the facts, but the facts the judge found significant. To find
the actual fact sources, the behaviouralists should … study the briefs, oral
arguments, minutes of case conferences, etc.”159

158
Idem., p. 816.
159
Idem.

210
The correlation of the attitudes and backgrounds of judges with their
voting records on the bench is not the only approach of the
behaviouralists. One common method that is used is to relate the social
background of judges to their decision making. An objective of this
methodology is to test whether prior judicial experience as a first instance
judge makes an appellate judge more likely to favour judicial restraint or
stare decisis.

The a priori assertion that there was indeed such a correlation has been
tested in the United States by looking at a large number of U.S. Supreme
Court decisions where precedent was overruled. There was then
established a propensity to overrule score for each judge. On scaling them
it was found that judges with lower court experience had a greater
propensity to overrule than judges without such experience. It was also
found, surprisingly, that dissenting judges had the lowest propensity to
overrule, suggesting that the stereotype of a dissenting judge was a
‘tenacious advocate of traditional doctrine’ 160.

Freeman sounds a note of caution about these findings.

“These conclusions are interesting, but limited. No causal link is

demonstrated. The danger lurks – as with behaviouralism generally – of
losing sight of the normative character of the law. With their political
science background, judicial behaviouralists may be forgiven for thinking
that judges are policy makers, and nothing else. But, just as it would be
wrong to ignore the political element in decision making, it is equally

160
Idem., p. 817.

211
facile to see judges as politicians, and nothing else. Future behaviouralists
may rescue the ‘ought’ of law and appreciate its underlying rationale.” 161

C. Pragmatism in Law

“Realism was influenced by philosophical pragmatism. With the decline

of Realism an echo of this pragmatism has re-emerged as ‘pragmatism in
law’.”162 Legal pragmatism grounds policy judgments on facts and
consequences rather on conceptualisms and generalities. To be pragmatic,
says Richard Prosner, a legal pragmatist, is to be instrumental forward
looking, empirical, skeptical, anti-dogmatic. 163 In his view, it is not
incompatible to subscribe to pragmatism as well as espousing an
economic analysis of law.

“Posner’s pragmatism can be illustrated by examining his theory of

adjudication. The pragmatist judge is looking for the best decision having
in mind present and future needs and ‘so does not regard the maintenance
of consistency with past decisions as an end in itself but only as a means
for bringing about the best results in the present case’. Precedent is thus a
source of information and a limited constraint on freedom of decision, but
it is not where the judge will get ‘the rule of decision for the truly novel
case’. Nor will the judge be assisted by recourse to philosophy, even
perhaps to philosophical pragmatism … Posner … insists that moral

161
Idem.
162
Idem.
163
Overcoming Law (1995), and see also The Problematics of Moral and Legal
Theory (1999).

212
theory has little to offer law and recommends instead that judges and
jurists should seek assistance in economists’ empirical tools.”164

Posner’s assertion that moral theory has little to offer law led to a heated
exchange between him and Dworkin. Freeman observes that the fulcrum
of the disputation between the two thinkers is the United States Supreme
Court decision on the right to assisted suicide165.

“Dworkin had been one of the authors of ‘The Philosophers’ Brief’, the
arguments of which the Supreme Court rejected, and subsequently
attacked the court for failing to ‘understand fully the philosophical
dimension of adjudication and the ethical responsibilities of judges in
interpreting the Constitution’. But for Posner, Dworkin was wrong to
insist that judges have recourse to moral theory. And the Supreme Court
was right to distance itself from moral debates about the right to die.
Courts carry out their institutional role best when they anchor policy
judgments in facts and consequences, rather than, what he calls,
conceptualisms and generalities.”166

Another example in which a philosophical question arises in connection

with a legal issue is the role of counsel when representing his client in
litigation. The issue arose in one American case in which a convicted
robber asked his assigned counsel to raise issues on appeal in addition to
those counsel had chosen to focus on167. Counsel refused. The appeal

164
Freeman, p. 818.
165
Washington v. Glucksberg (1997) 521 U.S. 702.
166
Freeman, p.818.
167
Jones v. Barnes (1983) 463 U.S. 745.

213
failed. The convicted man sought habeas corpus relief168, arguing that he
had received ineffective assistance of counsel. The majority of the Court
ruled against him.

In an overtly paternalistic reasoning the majority decision stated that

questions of tactics are properly left to lawyers, not clients, because
lawyers know better than clients what is in the clients’ best interests. To
hold otherwise, the court said, would disserve the very goal of vigorous
and effective advocacy. The dissenting judgment argued against
paternalism. It argued that the majority decision denigrated the values of
individual autonomy and dignity. In the view of the dissenting judgment,
the role of the defence lawyer “should be above all to function as the
instrument and defender of the client’s autonomy and dignity.”

Both sides could have couched their arguments in pragmatic terms. But
doing so would have evaded the issue of principle which both sides
rightly addressed. Yet the issue of principle is a philosophical one that
invites philosophical questions about the nature of autonomy and
dignity.169

D. Legal Process

‘Legal process’ is the name of yet another post-realist tradition of

American jurisprudence. It is regarded as a post-realist tradition because

168
On the subject of post-conviction remedies, see C Anyangwe, ‘Finality and
Miscarriage of Justice in Criminal Law: Post-Conviction Remedies in Common and
Civil Law Jurisdiction, Zambia Law Journal, Vol. 30, 1998, p.51.
169
Freeman, p. 819.

214
although it pre-dates the advent of realism, it came to acquire a distinctive
reality only when legal realism began to wane.

The thinking in the ‘legal process’ tradition is anchored in the belief that
law is a purposive process. According to that thinking, the very purpose
of legal institutions is to maximize the total satisfactions of valid human
desires. Successful pursuit of this goal demands an efficient legal system.
Such a system can only be realized if most issues of social ordering are
left to the autonomy of individuals and groups. The law should only
intervene when required and then it should only be the legal institution
which is competent to do so.

The courts are central to the legal process tradition. Courts have the
power of reasoned elaboration and are therefore expected to reach
decisions on the basis of rationally feasible principles. A decision could
not be a good decision unless supported by principle. 170

Chapter Eight

Historical and Anthropological Jurisprudence

Section 1 Historical Jurisprudence

170
Idem., pp. 819-820.

215
The historical theory of law, like other social science theories of law,
accept law as it is found but attempts an explanation of how the content
of the law has been moulded. The basic idea of the historical school is
that historical factors influence the manner in which the content of the
law has been moulded. Law and history are regarded as vitally
interdependent. The school arose about the same time as Analytical
positivism in the beginning of the nineteenth century. It emerged as a
reaction to the natural law thinking of the eighteenth century.

The Analytical School of jurisprudence, the chief exponent of which was

Austin, denied custom any legal validity unless it was derived from or
sanctioned by a determinate sovereign. However, the German historical
school of jurisprudence erected custom to a primary place among the
materials of law. To that school, Allen observes, all law is essentially the
product of material forces associated with the Geist of each particular
people, and nothing is more representative of these evolutionary
processes than the autochthonous customs which are found to exist in
each community, and which are as indigenous as its flora and fauna. In
the view of this school, custom carries its own justification in itself:
custom would not exist at all unless some deep-seated need of the people
or some native quality of temperament gave rise to it. 171

Savigny wrote in his System:

“The true basis of positive law … has its existence, its reality, in the
common consciousness of the people. This existence is an invisible thing
… [We recognize it] when it reveals itself in external act, when it steps
forth in usage, manners, custom; in the uniformity of a continuing and
171
CK Allen, Law in the Making, p. 87.

216
therefore lasting manner of action we recognize the belief of the people as
its common root and one diametrically opposite to bare chance. Custom
therefore is the badge (Kennzeichen) and not a ground of origin
(Entstehungsgrund) of positive law.”172

According to Puchta, Savigny’s disciple, custom was self-sufficient and

independent of legislation. The basis of customary law, he argued, lay in
the collective purpose of the nation. Express legislation could be useful;
but only in so far as it embodied the collective purpose of the nation as
already manifested in custom. This postulate led the historical school to
regard with distrust all legislation, especially legislation in the form of a
code173.

A. Glossators: Reception of Laws

The historical approach to law started as a history of the study and

reception of Roman law in Europe. After the collapse of the Roman
Empire, Roman law itself was saved from decay and death only because
in France and Italy, in particular, jurists in the Universities revived
interest in the subject. These jurists took it upon themselves to add
explanatory glosses and commentaries to the received Roman texts, such
as the Compilation of Justinian. Because they added glosses to the Roman
texts they came to be known as Glossators.

In the twelfth century their work culminated in the publication of a final

document known as the Glossa Ordinaria. The form and content of the

172
Quoted in Allen, p.87.
173
Ibid., p. 88.

217
Roman law that was eventually received in continental Europe in the
fifteenth and sixteenth centuries was a diluted version adapted from the
Glossa.

The Renaissance kindled fresh interest in the original works of the

Romans themselves. For example, Jacques Cujas (1522-1590), a French
jurisconsult and exponent of the historical school of Roman law, fell back
on the original texts of Roman law and became the first scholar to
understand Justinian’s Corpus Juris in historical perspective.

B. Herder and Hegel

Among the influential founders of what became known as the historical

school of jurisprudence are the Germans, Herder and Hegel. [Freeman
903-905] Herder viewed history as the life of communities, rather than
exploits of rulers, statesmen, and so-called ‘great’ generals and ‘great
men’. He believed that different cultures and societies developed their
own values rooted in their own history, traditions and institutions. For
him, the quality of human life and its scope of self-expression resided
precisely in this plurality of values, each society being left free to develop
in its own way.

Herder rejected the universalizing tendencies of the French philosophes.

He stressed the unique character of each historical period, civilizations
and nation. Every nation, he stated, possesses its own individual character
and qualities and none is intrinsically superior to others. “Any attempt to
bridge these innumerable manifestations under the general command of a
universal natural law based on reason was inimical to the free

218
development of each national spirit (Volksgeist) and could result in
imposing a crippling uniformity. Herder … viewed the bureaucratic state
with unqualified antipathy; the state ‘robbed men of themselves’ and was
a substitution of machinery for life.” 174

Unlike Herder, Hegel extolled the state as transcending individualistic

interest. He regarded the state as the means of securing national freedom.
Every developed state was an absolute end-in-itself, he contended,
enjoying total sovereignty and autonomy as regards its neighbours.
Hegel’s philosophy stressed freedom as the very essence of the state. But
in the nineteenth century his philosophy was distorted to promote
chauvinist nationalism and a doctrine based on glorification of an
authoritarian state, “viewed as an organic entity superior to the
individuals comprised in it and dedicated to a national policy with war as
an instrument of national achievement.”175

C. Savigny: the Volksgeist

In Germany, where the historical school of jurisprudence was born,

Roman law applied as the general law of the land. That law was assumed
to have been received in Germany in the form of Justinian’s codification
as found in the works of the post-Glossators. However, the law in
Germany as a whole still remained confusing with many local variants.
Given these circumstances, Thibaut proposed in 1814 that Germany
should adopt a code on the lines of the Code Napoléon in France.

174
Freeman, Lloyd’s Introduction to Jurisprudence, p. 904
175
Idem.

219
The proposal was roundly opposed by Friedrich Karl von Savigny (1779-
1861), founder of the German historical school, and the jurist entrusted
with the task of reforming Prussian law. Savigny was nurtured in the
natural law discipline and was a great admirer of Roman law. So strong
was his objection to Thibaut’s proposal and so powerful was his influence
in Germany that codification came to that country only in 1900, nearly
forty years after his death.

Savigny later rejected natural law, arguing that a legal system was part of
the culture of a people. Law was not the result of an arbitrary act of a
legislator. Law developed as a response to the impersonal powers to be
found in the people’s national spirit. This national spirit was a unique,
ultimate and often mystical reality. It was linked, Savigny believed, to the
biological heritage of a people.

In the opening passage of his pamphlet On the Vocation of our Age for
Legislation and Jurisprudence, he recalled attention to the physical
environment of law:

“In the earliest times to which authentic history extends, the law will be
found to have already attained a fixed character, peculiar to the people,
like their manners, language, and constitution. Nay, these phenomena
have no separate existence, they are but the particular faculties and
tendencies of an individual people, inseparably united in nature, and only
wearing the appearance of distinct attributes to our view. That which
binds them into one whole is the common conviction of the people, the

220
kindred consciousness of an inward necessity, excluding all notion of an
accidental and arbitrary origin.” 176

Savigny’s conception of law was in direct opposition to the glorification

of individual Reason espoused by natural law theorists. However, to
many minds, Savigny seemed to be saying that environmental conditions
impelled societies along predestined paths to a foreordained end. Hence
the accusation of ‘juristic pessimism’ leveled at the historical school. “If
the rationalists erred in idolizing the future, the historical jurists erred in
idolizing the past.”177 Savigny parried the charge of fatalism by arguing
that there is need to exercise ‘a vivid creative energy’ upon inherited
conditions, and thus “appropriate to ourselves the whole intellectual
wealth of preceding generations.”178

As a historian, he undertook to study the course of development of

Roman law from ancient times till its existing state as the foundation of
the civil law of contemporary Europe. His study of history led him to
hypothesize that all law originated in custom and only much later was
created by juristic activity. 179 Savigny maintained that Roman law had
been received into Germany for so long that Germany’s legal soul had
become a mixture of Roman and local laws. He warned that reforms
which went against the stream of a nation’s continuity were doomed. He
pointed out that the muddled and outmoded nature of a legal system was
often due to a failure to comprehend its history and evolution.

176
Quoted in Allen, p. 16.
177
Idem., p.17.
178
Idem.
179
Freeman, p.905.

221
The core of Savigny’s thesis was that the nature of any particular system
of law was a reflection of the spirit of the people who evolved it. Putcha,
Savigny’s disciple, later denoted this as the Volksgeist. All law, Savigny
asserted, is the manifestation of this common consciousness of the
people.

The Volksgeist is primarily a sociological, not a legal, fact. It is the broad

principle of the system that is to be found in the spirit of the people. It
exists de facto as a natural phenomenon. It becomes manifest in
customary rules. Custom, which comes early among the many
manifestations of the Volksgeist, is essentially a reflex of the corporate
Geist, making known the existing Geist. To Savigny therefore the law is a
matter of unconscious growth. Custom comes before conforming to the
popular consciousness. Law is not of universal application; it varies with
people and ages. The Volksgeist is the standard by which laws are to be
judged.

In the application of the indigenous law human agents must, of course,

intervene. But the business of these human agents is to utilize what they
find. They are not to use what they find as material for their own
inventive ingenuity. Even when the interpreter has to exercise his
individual judgment in the disputes which are certain to arise about the
meaning of law he does so as ‘the representative of the people’. He too
must come within the ambit of the Volksgeist.180

Savigny saw the nation and its state as an organism which is born,
matures, declines and dies. To him, law was a vital part of this organism.
He posited that, “Law grows with the growth, and strengthens with the
180
Allen, pp. 88-89.

222
strength of the people, and finally dies away as the people loses its
nationality.” By the term ‘nation’, Savigny meant only a community of
people linked together by historical, geographical and cultural ties.

It was Savigny’s contention that nations and their law go through three
developmental stages.

“At the outset of a nation there is a ‘political’ element of law: there are
principles of law which are not found in legislation but are part of
‘national convictions’ (Volksglauben). These principles are ‘implicitly
present in formal symbolic transactions which command the high respect
of the population, form a grammar of the legal system of a young nation,
and constitute one of the system’s major characteristics’. In its middle
period law retains this ‘political’ element to which is added the technical
element of juristic skill. This period is the apogee of a people’s legal
culture and is the time when codification is feasible. It is desirable only so
that the legal perfection of the period can be preserved for posterity. With
the decline of a nation law no longer has popular support and becomes
the property of a clique of experts. In time even this skill decays.
Ultimately, there is loss of national identity.”181

Savigny and other thinkers of the historical school thus expressed the
important truth that law is not an abstract set of rules simply imposed on
society, but is an integral part of that society, having deep roots in the
social and economic habits and attitudes of its past and present members.
Further, judges and lawyers generally, as forming part of the society in
which they live and have their being, reflect many basic habits and
attitudes of their society, so that the development of the law, so far as it
181
Freeman, p. 906.

223
rests in their hands, will probably conform in a broad and general way to
the patterns of behaviour which are widely approved or at least accepted
in that society. 182

The essence of Savigny’s doctrine was that there is a native law of the
community, and its origins are to be found in sociology, not in artificial
elements. He taught his generation that jurisprudence cannot be divorced
from history. His main thesis was a final negation of the unitary
sovereign conceived by Austin as the sole and inevitable source of law.

D. Gierke and the Volkswille

Another important scholar of the Historical School was Gierke (1841-

1921) who advocated the abandonment of individualism in favour of a
collective approach to society. To Gierk every true human association
becomes a real and living entity animated by its own individual soul. Of
all such human associations, state-organized nations are the greatest. The
corporate spirit, the common conviction of the people, the People-spirit
(Volkswille) or Will of the people is the very core of the separate
personality which each possesses. Gierke wrote:

“The development of law lies in human action. But the subject of this
action is not individuals but communities (Gemeinschaften). The
individual man who co-operates in the process always acts as a
component member and in furtherance of human community.”183

182
Idem., p. 907.
183
Quoted in Allen, p. 95.

224
Gierke exalted and cherished the spirit of his nation. In his conception of
the ‘corporate life of the people’ the development of law is to be found in
the ‘outer manifestation’ of conduct rather than in the ‘inner
manifestation’ of conviction. Law, according to his view, streams from
the soul of a people like national poetry, it is as holy as the national
religion, and it grows and spreads like language. 184

Charles Darwin (1809-1882) and Herbert Spencer (1820-1903) both put

forward a biological interpretation of law.

E. Maine: from Status to Contract

Sir Henry Maine (1822-1888) espoused a historical approach to law, a

historical approach shorn of Savigny’s mystical adherence to the
Volksgeist. He made a serious endeavour to study the nature and
development of early law in its actual historical context and as
illuminated by the study of undeveloped societies in the contemporary
world. He focused on the early law of Greece, Rome and the Old
Testament. This study “led Maine into some intuitive generalizations”
particularly his claim that early law passes through “three consecutive
phases of royal judgments, aristocracies as repositories of custom, and
finally an Age of Codes.”185 Early law is thus full of codes fabulously
attributed to inspired legislators. In reality these codes consisted of
collections of customary law known to and administered by a judicial or
religious aristocracy.

184
Idem., p. 96.
185
Freeman, p. 909.

225
Although Maine followed the general doctrine of the German historical
school, his view of the origin of custom diverges from it. The following
passage appears in his Ancient Law:

“Custom is a conception posterior to that of Themistes of judgements.

However strongly we, with our modern associations, may be inclined to
lay down a priori that the notion of a custom must precede that of a
judicial sentence, and that a judgement must affirm a custom or punish its
breach, it seems quite certain that the historical order of the ideas is that
in which I have placed them. The Homeric word for a custom in the
embryo is sometimes ‘Themis’ in the singular – more often ‘Dike’, the
meaning of which visibly fluctuates between a ‘judgement’ and a
‘custom’ or ‘usage’.”186

Maine asserted that in early societies, the legal condition of the individual
was determined by status. His claims, duties, privileges, and so on, were
determined by law. When society progressed, status disintegrated and the
individual himself freely negotiated his legal condition. Maine expressed
this theory thus: “The movement of progressive societies has hitherto
been a movement from Status to Contract.”

In other words, contract supplied the legal instrument which enables men
(and goods) to move freely. Contract allows the individual to change his
employment or his country. Today, the evolution from status to contract,
from immobility to mobility, has pervaded all fields of life, beyond the
fields of commercial and labour contracts: family relations, law of

186
Quoted in Allen, p. 120.

226
succession, club and union membership, law of land tenure, sale, actions
in contract and tort between State and citizen. 187

Maine pioneered anthropological investigations into the nature of

‘primitive’ and ‘underdeveloped’ systems of law. He believed that no
human institution was permanent. Change is not necessarily for the
better; it may be for the worse. Maine favoured legislation and
codification. To him, the advance of civilization demanded an increasing
use of legislation. A progressive society, Maine pointed out, has to keep
adapting the law to new economic and social conditions.

In modern times, legislation has proved the essential means of attaining

this end, however imperfectly. Maine saw codification as an advanced
form of legislative development. To him, it represented the stage at which
all the preceding phases of development are woven into a coherent whole.
Maine’s notable contribution to jurisprudence lies in his emphasis on the
part played in primitive societies by the codification of customary law.

Section 2 Anthropological Jurisprudence

Along with other social scientists, anthropologists and ethnographers

have studied the phenomenon of law from the perspective of their
discipline.

187
W Friedmann, Law in a Changing Society, p. 120.

227
A. Primitive Law

In their study of law as a ‘great anthropological document’,

anthropologists commonly approached law through the rigid and narrow
definition of law supplied by Austin. “Primitive peoples without formal
legal codes, courts, policemen or prisons were thought to lack anything
that might be dignified by the appellation ‘law’. It was conceded that they
had custom, which, it was assumed, was a characteristic of early or tribal
society. And often custom was conceived of as absolutely rigid, complete
conformity being enforced by the overwhelming power of group
sentiment, amply fortified by religion and magic. Nor was it doubted that
in some way ‘custom’ was inferior to law.” 188

Anthropologists like Radcliffe-Brown189 and Evans-Pritchard190 defined

law, after Austin, as social control through the systematic application of
the force of politically organized society. Using a popular, rather than an
analytical, conception of law, they were inclined to deny that so-called
‘primitive societies’ had law.

However, other anthropologists were critical of this type of

ethnocentrism. For example, Malinowski who studied the people of the
Trobiand Islands considered it wrong to define law in terms of central
authority, codes, courts, and policemen. After studying the Barotse of

188
Freeman, p. 910.
189
‘Primitive Law,’ in Structure and Function in Primitive Society (1952), chp. 12,
cited by Freeman 910.
190
‘The Nuer of Southern Sudan,’ in Fortes & Evans-Pritchard (eds.), African
Political Systems (1940).

228
present-day Zambia, Max Gluckman concluded that the Lozi have “law
as a set of rules accepted by all normal members of the society.” 191

B. Relationship between Custom and Law

The relationship between custom and law is one that has intrigued jurists
and anthropologists. Studies concentrating on disputes settlement
processes side-step this issue and instead give a pathological picture of
the societies studied. It is common learning that much law is facilitative, a
means of promoting interaction, and an aspect of social control. A large
part of custom also seeks to attain these same goals. How then is legal
behaviour different, if at all, from non-legal behaviour?

According to Hoebel, law is more than custom and less than social
control. The effectiveness of customs, he argues, does not make law of
them. Law is invoked when ordinary everyday control does not work:
physical and/or economic penalties are substituted for psychological
penalties. Hoebel distinguishes law from general social norms in three
ways: the legitimate use of physical coercion; the invocation of authority;
and an element of regularity or consistency. 192

Law accordingly shares a number of characteristics with custom. “Both

consist of social norms. They have an element of regularity in common:

191
The Judicial Process among the Barotse (1955), p.229.
192
Hoebel, The Law of Primitive Man (1954), cited by Freeman 913.

229
‘that which is normally done (the is) and that which is expected to be
done (the ought)’. Like custom, law is sanctioned.” “Custom consists of
social norms, and social norms are sanctioned. Behaviour in accord with
these norms is rewarded; that at variance with it is regarded as deviant
and often responded to punitively. Social control encompasses these
rewards and punishments. These sanctions may be very effective.” 193

Lon Fuller thus argues most persuasively that “we cannot understand
‘ordinary’ law … unless we first obtain an understanding of what is
called customary law.”

“This neglect of the phenomenon called customary law has … done great
damage to our thinking about law generally … [A] proper understanding
of customary law is of capital importance in the world of today. In the
first place, much of international law, and perhaps the most vital part of
it, is essentially customary law. Upon the successful functioning of that
body of law world peace may depend. In the second place, much of the
world today is still governed internally by customary law.” 194

This sentiment about the importance of custom is shared by the Marxist

anthropologist Stanley Diamond. He posits that custom represents order
and that law is “the antonym and not the synonym of order.” He sees law
as ‘cannibalising’ the institutions which it purports to reinforce. He draws
particular attention to the repressive process by which governments have
gained sovereignty over peoples in Africa. 195

193
Freeman, p. 914.
194
L Fuller, ‘Human Interaction and the Law,’ (1969) 14 Am. J. Jurisprud. 1, excerpt
in Freeman 936-946 at p.936.
195
Freeman, p. 915.

230
C. Methods of Handling Disputes

Legal realists, political scientists, and sociologists have shown a keen

interest in the problem of conflict resolution. Not to be outdone, the scope
and nature of legal anthropology in the recent past has also changed and
broadened. The legal anthropologist is also now concerned with general
social theory and the sociology of law. Early legal anthropological
scholarship focused on an inquiry into the existence of legal rules and a
legal system in so-called primitive societies. Anthropologists went about
that task using the perspective of Austin’s concept of law, with its
emphasis on the sovereign, state, legislature, and judiciary.

Contemporary anthropological studies of law focus not on law as such

but on methods of handling disputes. In searching for alternative
strategies for processing conflicts in contemporary society, it concentrates
on finding out methods used in ‘primitive societies’ for resolving
disputes. “Definitional questions are sidestepped and attention
concentrated on the institutions and techniques for resolving conflict,
whether or not these deserve to be designated as ‘legal’.” 196

However, there are limitations in this approach. “All becomes

‘subordinated to the analysis of procedures, strategies and processes.’ The
study of substantive concepts and rules is of secondary importance and no
real attention is given to definitions of law. There is also the danger that
courts and decision processes of complex modern societies will be the
models against which to measure simpler ones.”197

196
Idem., p. 912.
197
Idem.

231
Still, the fact must be acknowledged that legal anthropologists have made
a distinctive contribution in this area. That contribution lies in research
methods developed by anthropologists such as case method or situational
analysis, which has now been adapted to study dispute processes.
Another contribution lies in an emphasis on modes of dispute settlement,
the litigant’s perspective in disputes, and informal alternatives to courts.
There is still attention on officials. But emphasis is given to the actions of
parties to disputes and their perceptions of action. Legal anthropologists
have also done work on the life-history of disputes, and on the effect that
pre-dispute relations between the parties have on subsequent public
confrontation.

Out of such studies attempts have been made to theorise about dispute
processes. There are a number of attempts at typologies. 198 Bohannan
proposed ‘law’ and ‘war’ as disputes resolution processes. Drawing on
this dichotomy Roberts has suggested ‘fighting’ and ‘talking’. He argues
that to be successful, bilateral negotiation must be seen as the ‘right’ way
of resolving a dispute. There must be a ready disposition to talk.
Conciliatory gesture must represent approved responses. Talking, he
contends, has little chance of success where honour demands retaliation
to an assumed wrong and where conciliatory approaches are likely to be
identified as signs of weakness.

Brenda Danet identifies seven types of dispute process, some verbal and
others non-verbal. The non-verbal modes of processing disputes are
physical violence, appeals to the supernatural/the use of magical
procedures, and avoidance or ostracism. The verbal modes are shaming,
198
Idem., p. 917.

232
reconciliation rituals, verbal contests and settlement-directed talking.
Koch differentiated six procedures based on the presence or absence of a
third party and the mode of its intervention and, secondly, the nature of
the outcome. The six procedures are avoidance, negotiation and coercion,
which he denoted as dyadic procedures; and mediation, arbitration and
adjudication, which were triadic. 199

Chapter Nine

Sociological Jurisprudence and the Sociology of Law

In the nineteenth century there was a powerful emphasis on science as the

royal road to progress. As part of this emphasis, August Comte (1798-
1857) made the first attempt to apply the scientific method to social

199
Freeman at page 917 cites the following studies: Bohannan, Introduction to Law
and Welfare (1967), p. xiii; Roberts, Order and Dispute (1979), Chap. 9; Brenda
Danet, ‘Language in the Legal Process’ (1980) 14 Law and Soc. Rev. 445; Koch, ‘The
Anthropology of Law and Order,’ in Tax & Freeman (eds.), Horizons of
Anthropology (1977), pp. 307-311.

233
phenomena. Comte argued that social institutions should be studied as a
science with its own technique. He coined the word ‘sociology’ as the
name of this science of society, of which law is a part. He defined
sociology as the science of social order and progress. Sociology
comprises two areas of inquiry: social statics and social dynamics. Social
statics is the theory of social progress. The task of sociology is to
discover and work out the proper scientific principles that should guide
society to improve and develop.

Comte envisaged four means of scientific investigation: observation,

experiment, comparison, and the historical method which, in his view, is
specific to sociology. The data of the historical method were to be taken
from observation and tested against the known laws of human nature. By
means of this method, empirical generalizations could attain the status of
laws and sociology thus becomes a science.

In his later years, however, Comte deserted the empirical method for
sweeping a priori affirmations. For example, he held the view that there
were invariable natural laws operating in the field of social activity. In his
Cours de Philosophie Positive (1842) he developed laws of social
evolution holding that causal laws govern man in society as well as the
physical world of science.

Comte dogmatized that mankind inevitably passes through three stages,

which he identified as the theological (where phenomena are explained in
terms of superior beings), the metaphysical (where abstract entities like
nature are held responsible), and the scientific or positive (at which stage
man is content to observe phenomena).

234
Sociological approaches to law developed in the twentieth century, with
Professor Roscoe Pound as the leading and most influential sociological
jurist. Sociological jurists believe in the non-uniqueness of law: they see
law as but one method of social control. They dismiss as a ‘jurisprudence
of concepts’ the view that law is a closed logical order. They are skeptical
of the rules presented in the textbooks, being concerned to see what really
happens, that is to say the ‘law in action’. They see reality as socially
constructed with no natural guide to the solution of many conflicts.
Sociological jurists believe also in the importance of harnessing the
techniques of the social sciences, as well as the knowledge culled from
sociological research, towards the erection of a more effective science of
law. There is an abiding concern with social justice; and hence the
postulate that law can be used for the purposes of ‘social engineering’.

Section 1 Sociological Foundations of Law

In the nineteenth and early twentieth centuries a number of thinkers gave

themselves the task of exploring the sociological foundations of law.
They devoted their attention not so much to the ethical content and aim of
law as to the actual social circumstances which rise to legal institutions
and which condition their scope and operation. This is the ‘functional’
view of law, regarded as one of many factors in the morphology of
society. It is essentially concerned not with man as an individual but with
man-in-association. The whole theory of the sociological school is a

235
protest against the orthodox conception of law as an emanation from a
single authority in the state 200.

A. Baron de Montesquieu: Law and the Physical Environment

In the eighteenth century, already, Baron de Montesquieu (1689-1755)

argued in his L’Esprit des Lois (1748) that law was the product of
numerous factors such as local manners, custom, and the physical
environment. He made efforts to trace the effect of social environment on
law, stressing the influence of geographical and climatic conditions on
law. History to him was important in understanding the structure of
society. Montesquieu also drew attention to the influence of economic
factors on law. A good law, he maintained, conformed to the spirit of
society. The physical environment of law formed the core of
Montesquieu’s teaching.

B. Rudolf von Jhering: Law as an Instrument for Social Needs

Jhering (1818-1892) theorized that laws are only a means of social

control. He rejected the traditional jurisprudence of concepts in favour of
the jurisprudence of interests. He advocated the view that the purpose or
end of law is its most important aspect. Law grows and can be made to

200
CK Allen, Law in the Making, pp. 28-29.

236
secure the social advantage of the community. The means of serving
human ends are discovered by experience and fashioned into law.

Jhering emphasized the function of law as an instrument for serving the

needs of human society.

“In society there is an inevitable conflict between social interests and

each individual’s selfish interests. To reconcile this conflict the state
employs both the method of reward, by enabling economic wants to be
satisfied, and the method of coercion. There may be unorganized
coercion, as in the case of social conventions or etiquette, but law is
specifically that form of coercion which is organized by the state. Jhering
did not deny the existence of altruistic impulses, but recognized that these
would not suffice without the coercive form of social control provided by
law. The success of the legal process was to be measured by the degree to
which it achieved a proper balance between competing social and
individual interests. Jhering, however, gave very little indication of a
scale of values with which to achieve this balance.”201

C. Charles Darwin: Biological Interpretation of Law

In his well-known work, The Origin of Species, Charles Darwin (1809-

1882) ushered in a new era in natural history and put forward a biological
interpretation of law. He formulated the principle of natural selection as a
law and not merely as a hypothesis. The essentials of the doctrine about

201
Freeman, Lloyd’s Introduction to Jurisprudence, p.662.

237
species soon established themselves in intelligent opinion as beyond
controversy.

Darwinian biology has enormously influenced every branch of study

since it was first propounded. (Allen, 19) The new biology demonstrated
the extraordinary interdependence of all known forms of life.

“Daily and with growing astonishment men have learnt by what intricate
processes organisms, to all appearance unrelated, vitally influence each
other in generation, subsistence, and dissolution. … Among these myriad
creatures there is not one which, in the infinite complexities of their
mutual action and reaction, may not be the cause of far-reaching
transformations in natural or human history. Thus the powerful stimulus
to biological investigation gave potentially at least, to every organism,
however obscure, an unprecedented importance.”202

An upshot of this fact is the emphasis that is today placed on the

protection of the environment and the eco-system. Furthermore, the race
consciousness form of legal criticism which emerged in the 1990s as
Critical Race Theory may be considered as one aspect of ‘biology in
jurisprudence’. “If there be anything corresponding to biology in
jurisprudence today, it is to be found in the study of racial origins and
early social institutions which … has steadily grown under the style of
‘comparative’ jurisprudence. The study of law has been obliged to extend
its scope far beyond the particular form of Occidental society which was
the basis of the old analytical jurisprudence.”203

202
Allen, pp. 19-20.
203
Idem., p. 21.

238
 D. Herbert Spencer: Society as an Organism

In the hands of sociologists society became an organism like everything

else. Herbert Spencer (1820-1903) was inspired by the biological aspect
of society suggested by Darwin. Spencer’s teaching therefore made
comparison between the anatomy of an animal organism and a body
politic, carrying the comparison somewhat to indefensible extremes.

“The comparison between the anatomy of an animal organism and a body

politic is instructive and suggestive, and this Spencer successfully
demonstrated; but to push the comparison beyond the limits of analogy is
to mistake the metaphorical for the real. It is, indeed, to return to a form
of barren anthropomorphism which was popular in the Middle Ages, but
which has been long since discredited. Much of Spencer’s ‘organic’
dissection of society reads nowadays like complicated allegory, the more
misleading for its very ingenuity. … The Spencerian analysis … by over-
insistence on ‘organic’ analogies, laid itself open to the charge of being as
mechanical as any of the earlier a priori doctrines, which did not profess
to be ‘scientific’. But at least it directed attention to the necessity of
considering law in relation to other social phenomena.” 204

For Spencer, evolution was the key to the understanding of human

progress and legal and social development could best be left to evolve by
a natural selection like biology. He applied this organic evolutionary idea
in relation to society. He believed that by the great process of biological
evolution, social evolution would arise as part of an automatic and
independent process.
204
Idem., pp. 20-21.

239
Spencer desired to impress upon society the very small part that
conscious direction could hope to achieve in altering the process of social
evolution. For him, society is a structure characterized by co-operation
between parts and whole. If this consensus is disturbed (for example,
government interference with the workings of social or economic life) the
equilibrium of the whole system would be undermined.

E. Max Weber

Max Weber (1864-1920) was the first to try to develop a systematic

sociology of law, and also the first to see the sociology of law as central
to sociological theory. 205 Weber’s primary concern was to understand the
development and characteristics of Western society and its distinctive
feature, capitalism.

He saw the existence of rational legal order as a critical feature of

capitalist society. He emphasized the peculiarly ‘rational’ quality of legal
institutions in modern Western societies. He saw law as passing through
stages ranging from charismatic legal revelation through what he called
‘law prophets’ to a ‘systematic elaboration of law and professionalized
administration of justice by persons who have received their legal training
in a learned and formally logical manner.

Weber takes the view that rationality and irrationality characterize legal
systems. Legal irrationality is failure to be guided by general rules. It
“may be formal, as where decisions are determined by means beyond the
205
Freeman, p. 663.

240
control of reasoning (e.g. trial by ordeal or oracle), or substantive, where
the decision-maker is guided only by reaction to the individual case.”206
Legal rationality may be substantive and formal as well.

“A legal system exhibited substantive rationality when it was guided by

principles albeit of an ideological system other than that of the law itself,
for example religion or justice. Such legal systems lacked the restraints of
procedural formality and the sort of consistency that we associate with a
system of judicial precedent. It attained formal, logical rationality when
its rules were expressed by the use of abstract concepts created by legal
thought and conceived of as constituting a complete system. Such legal
systems, Weber claimed, were unique to modern Western civilization.”
207

Weber reasoned that the growth of ‘occidental rationalization of law’ is

the product of the rationalism of Western culture, traceable to the
interests of the bourgeoisie and the interests of the absolutist state. For
Weber, the role of natural law was to legitimate legal change and as such
is a necessary factor in the rationalization of law. For Weber, law was not
in any way ‘determined’ by economic forces. Law was relatively
autonomous, but, however, crucially related to economic forces in that
while it is influenced by economic forces it also influenced economic and
other processes in society.

F. Eugen Ehrlich: Social Facts as the Source of Law

206
Idem.
207
Idem.

241
Eugen Ehrlich (1862-1922), a German jurist, was concerned to expound
the social basis of law. He argued that law is derived from social facts
and depends not on state authority but on social compulsion.

“Law differs little from other forms of social compulsion, and the state is
merely one among many associations, though it possesses certain
characteristic means of compulsion. The real source of law is not statutes
or reported cases but the activities of society itself. There is a ‘living law’
underlying the formal rules of the legal system and it is the task of judge
and jurist to integrate these two types of law.” 208

Ehrlich argued that statutes and court decisions give an inadequate picture
of what really goes on in a given community. He adumbrated in the
following sentence what he claimed was the ‘fundamental principle of the
sociology of law’: “The centre of gravity of legal development lies not in
legislation, nor in juristic science, nor in judicial decision, but in society
itself.”

Ehrlich’s thesis is that society is a congeries of sub-societies. Man is

found everywhere to be not merely a member of society, but a unit in
innumerable different associations. “He is, as it were, an electron in an
atom-forming part of the whole matter of society. Each of these
constituent atoms has a spontaneous ‘inner order’ of its own, which is as
truly ‘law’ as ‘state-law’.”209 Each of these ‘atoms’ which Ehrlich likened
to law may not have the power of compulsion that the authority of State
has. But in Ehrlich’s view the complete sanction of force is not a

208
Freeman, p. 670.
209
Allen, p. 29

242
necessary attribute of law. There are, he argued, innumerable social rules
which are in fact operative and efficacious, and which lack any sanction
but the opinio necessitates.210

G. Roscoe Pound: Law as Social Engineering

Sociological jurisprudence is all too easily identified with the American

Professor, Roscoe Pound (1870-1964) in whose writings the most
influential exposition of American sociological jurisprudence is to be
encountered.

“The sociological approach to law struck a particularly responsive chord

in the United States in the early part of the twentieth century. The
expansive character of American society, its material wealth, and its
devotion to scientific technology, all encouraged the belief that the basic
problem was one of adequately controlling and distributing that wealth,
and that the solution could best be attained by the application of the
developing social sciences to. Hence, law as a form of social control, to
be adequately employed in enabling just claims and desires to be
satisfied, must be developed in relation to existing social needs, and must
not be chary of relying upon the social sciences in studying the place of
law in society, and the means of making it most effective in action.”211

210
Idem.
211
Freeman, pp. 672-673.

243
Accordingly, sociological jurisprudence should, in Pound’s view, ensure
that the making, interpretation and application of laws take account of
social facts. For Pound, all juristic truth is relative, affected by particular
conjunctions of circumstances. “The whole trend of Professor Pound’s
legal teleology is cautiously experimental.”212

Pound believed that ‘interests’ are the chief subject-matter of law, and
that the task of law in society is the ‘satisfaction of human wants and
desires’. These wants and desires are ever changing with the flux of
circumstance. In the pursuit of its purpose of ‘social control’, law is faced
with two perpetual problems: the maintenance of a balance between
stability and change, and the ascertainment of those ‘social desiderata’
which it is possible and desirable for the law to satisfy.

Thus arises, the problem of the ‘valuation of interests’, that is, the
selection of the most socially valuable objectives of state-regulation.
Pound did not say what criterion is available for this difficult task. He
could only say that the jurist should first of all be aware of the real nature
of his responsibility, and then, in furtherance pf social aims, should do the
best he can, in the most sensible way he can, on the best information he
can.

Pound wrote

“For the purpose of understanding the law of today I am content with a

picture of satisfying as much of the whole body of human wants as we
may with the least sacrifice. I am content to think of the law as a social
institution to satisfy social wants – the aims and demands involved in the
212
Allen, p. 33.

244
existence of civilized society – by giving effect to as many as we may
with the least sacrifice, so far as such wants may be satisfied or such
claims given effect by an ordering of human conduct through politically
organized society. For present purposes I am content to see in legal
history the record of a continually wider recognizing and satisfying of
human wants or claims or desires through social control; a more
embracing and more effective securing of social interests; a continually
more complete and effective elimination of waste and preclusion of
friction in human enjoyment of the goods of existence – in short, a
continually more efficacious social engineering.”213

In this ‘experimental’ or ‘functional’ jurisprudence, Pound advocated the

following practical means as the techniques of his ‘social engineering’:
the study of the actual social effects of legal institutions and legal
doctrines, the study of the means of making legal rules effective,
sociological study in preparation for law-making, the study of juridical
method, , a sociological legal history, and the importance of reasonable
and just solutions of individual cases (the ‘individualization’ of legal
decisions). 214 In Pound’s hands,

“jurisprudence is not so much a social science as a technology, and the

analogy of engineering is applied to social problems. [Pound] is
concerned primarily with the effects of law upon society and only to a
lesser extent with questions about the social determination of law.
Emphasis is laid on the need to accumulate factual information and
statistics and to this end Pound put forward a practical programme …
Little attention is paid to conceptual thinking. The creative role of the

213
Quoted in Allen, p.35.
214
Idem., pp. 33-39.

245
judiciary … is in the forefront as is the need for a new legal technique
directed to social needs. The call is for a new functional approach to
law.”215

H. Léon Duguit: Principle of Social Solidarity

Léon Duguit (1859-1928), Professor of French constitutional law, was an

enthusiastic disciple of his compatriot, Auguste Comte. He insisted that
law is simply “a phenomenon of fact, an objective situation as between
State and individual on the one hand and between individual and
individual on the other hand.”216 He set out to banish from law all
‘metaphysics’, that is, to evaporate all ethical essence out of law. He also
set out to banish the notion of right from jurisprudence and substitute for
it only service (duty).

Comte had said that “the only right which any man can possess is the
right always to do his duty”. But neither he nor Duguit indicated to what
that duty was owed. “Not to the State,” Allen points out, “for the State,
though elaborately personified in so much juristic theory, is a mere
fiction. L’Etat est mort! It, too, is merely a phenomenon of political fact,
and its function in modern society is not the exercise of authority or
power, but that of acting as a central, directing agency for the
performance of public service. In other words the notion of public service
replaces the conception of sovereignty as the foundation of public
law.”217 Indeed, Duguit dimissed Rousseau’s volonté générale as mere

215
Freeman, p. 673.
216
Allen, p. 39.
217
Idem., p. 40

246
sophism and, to that extent, swept away the idea of the sovereignty of the
nation so beloved of Rousseau and other social contractarians.

Duguit postulated an irrefragable social law of solidarity which he

conceived as a mere existing fact. The interplay of reciprocal duties
results in social interdependence and this leads to social solidarity. For
Duguit, solidarity is nothing more or less than the fact of interdependence
uniting the members of human society, and particularly the members of a
social group, by reason of the community of needs and the division of
labour. From this theme he postulated his theory of group
decentralization or federal syndicalism – “a form of disseminated
autonomy in which the part played by the State was little more than that
of a regulator or overseer.”218

He further explicated his principle of social solidarity by arguing that

individuals owe it to themselves and to society to ensure the orderly
progress of public as well as private affairs. He maintained that the lawful
behaviour of rulers and the ruled, the two complementary segments of the
community, is guaranteed by the principle of social solidarity. The rulers
or governors are appointed to run the affairs of State; the ruled or
governed are those who in the interest of the common good give up part
of their civic prerogatives to the governors.

Duguit hastened to point out that the relation between governors and the
governed is “not one of subjection such as is implied in the Austinian
theory of sovereignty, but one of mutual interdependence inspired by a
desire for division of labour. The conduct of the governors and of the
governed is regulated, both as between the two groups and as between
218
Idem.

247
any two of their individual members, by the principle of social
solidarity.”219

All organization, Duguit said, should be directed towards smoother and

fuller co-operation between people (‘principle of social solidarity’). The
only true basis of the social order in any community is what he called la
règle de droit (the rule of law), a categorical postulate, an immanent
principle the inexorable operation of which binds each and all in the
community.

However, Duguit did not conceive of this ‘rule of law’ as a rule properly
speaking. He conceived of it as a virtual discipline which social
interdependence imposes on all members of the group. He claimed that a
precept that does not further social solidarity is not law. He readily
admitted that customary law is law, and even proclaimed the all-sufficient
authority of droit coutumier in France. He thus did not set any great store
on enacted law, including France’s codified law, the Code Napoléon. He
denied that statutes and decided cases make law in themselves.

I. Emile Durkheim: Repressive and Restitutive Law

Emile Durkheim (1858-1917) was a towering French sociologist who

took a huge interest in legal phenomena, writing on such law subjects as
the criminal process, punishment and contract. In The Division of Labour
in Society (1893) he contended that law reproduces the principal forms of
‘social solidarity’ (which he saw as a wholly moral phenomenon). He

219
T. O. Elias, The Nature of African Customary Law, Manchester University Press,
1956, p. 41.

248
then went on to develop a typology of the evolution of law which has
profoundly influenced subsequent sociological and anthropological
thought.220

“According to Durkheim there are two basic types of societal cohesion

(what he called solidarity): mechanical solidarity to be found in
homogenous societies and organic solidarity which was found in more
heterogenous and differentiated modern societies which rest on functional
inter-dependence produced by the division of labour. Linked to these
forms of integration are two types of law viz., repressive and restitutive.
In a society based on mechanical solidarity law is essentially penal. With
increased differentiation societal reaction to crime becomes a less
significant feature of the legal system, and restitutive sanction becomes
the main way of resolving disputes. Durkheim’s typology is rooted in a
priori thinking and empirical data have cast doubt on it. His assertion that
small-scale societies lack a division of labour has been shown by
anthropologists since Malinowski to be over-simplified.”221

Three main criticisms have been leveled against Durkheim. 222 First he is
criticized for distinguishing law from morality, since he tended to see law
as derived from and expressive of society’s morality. Another criticism of
Durkheim is that he focused on that part of the law which limits
individual’s activities: criminal law and punishment, sanctions and
obligations. This focus, critics point out, ignores the facilitative aspects of
law, ignores the law concerned with powers, ignores the law constituting

220
Freeman, p. 666.
221
Idem., p. 667.
222
Idem., pp. 669-670.

249
relationships, and ignores the law defining practices. Finally, Durkheim is
criticized for having little understanding of legal processes, of how law is
made, applied, and enforced; and for giving scant attention for the
‘interpreters/appliers’ of the law viz., the legal profession, the police, and
the courts.

Section 2 Recent Trends in Sociological Thought: A Sociology of Law

Classical sociological jurisprudence (Weber, Ehrlich, Durkheim) treated

particular problems in isolation. Contemporary legal sociology moves
away from that approach: Selznick pin-points and describes three stages
in the sociology of law; Cotterrell, Black and Tamanaha promote ‘socio-
legal studies’; Unger takes up the issue of legal culture and identifies
three types of law; Habermas insists on the centrality of law as an
integrative mechanism in societies; and Luhmann draws on biology to
expound an autopoietic theory of law.

A. Selznick and ‘Three Stages’ in the Sociology of Law

In ‘The Sociology of Law’, a contribution in Sociology Today: Problems

and Prospects published in 1959, P Selznick, an American sociologist,
pin-points three stages towards the emergence of the sociology of law. 223
The first stage is that in which a generaliser, a purveyor of grand theory
(such as Oliver Wendell Holmes, Roscoe Pound, and early Realists)

223
For excerpt of Selznick’s ‘The Sociology of Law’ see Freeman, pp.727-731.

250
communicated a perspective and provided the theoretical context for an
understanding of law in society.

The second stage is one in which there was concern for method. Here,
sociologist and academic lawyer synthesized their skills and techniques,
and collaborated in research activity.

One such joint research activity was that carried out by Harold Lasswell
(a political scientist) and Myres McDougal and which resulted in their
rejection of the method of legal positivism whereby judicial decisions are
reached on the basis of authority (precedent and statute). In their view
judicial decisions should instead be arrived at having regard to the
generally shared legal expectations of all members of a given community,
which expectations were to be determined through the establishment of
‘expectation indices’. However, this Lasswell-McDougal science-and-
policy model has had little impact on law and lawyers. In fact critics have
dismissed it as ‘hopelessly impractical and unrealistic as a recipe for
judicial lawmaking’ and as ‘simply the Poundian paradigm brought to
maturity’. 224

Talcott Parson, a sociological jurist, sees the major function of the legal
system as integrative. He reasons that the legal system serves to mitigate
potential elements of conflict and to ‘oil the machinery of social
intercourse. He insists that the legal system and the political system must
be analytically separated. For him, the interpretative work of the courts is
the central feature of the legal, while the formulation of policy is the
centre of the political system. The legislature being part of the political
system is thus seen as providing the courts with policy goals in return for
224
Freeman, pp. 680, 681.

251
interpretation and with enforcement in exchange for legitimation.
Freeman takes this Parsonian model to task.

“The analytical distinction between legal and political systems is not easy
to sustain. What of judicial decisions which are grounded overtly in
policy? And is not a legislature which makes laws participating in a legal
process? And should it be assumed that the legal system is integrative?
There are occasions when far from being a contribute [sic] force to the
good order of society the legal system is positively dysfunctional: for
example when the judiciary’s ignorance of commercial practices drives
business to arbitration and the decisions of courts cause industrial strikes,
or litigation is prohibitively expensive. What is regarded as functional for
one section of the community may be quite the reverse for another. There
are too many problems with Parsonian-type models for us to invest …
much hope in them.”225

The third and last stage pin-pointed by Selznick “is the time when
sociological jurisprudence will develop an ‘intellectual autonomy and
maturity’, when, having learnt the necessary skills, the jurist can return to
some of the theoretical questions posed at the outset, the function of law,
the role of legality, the meaning of justice, and a sociology of law will
emerge.”226 As an example of the third stage of the sociology of law,
Selznick, in his Law, Society and Industrial Justice (1969) depicts law as
a generic element in the structure of many different groups in society and
as endemic in all institutions that rely for social control on formal
authority and rule making (for instance, the normative structure of many

225
Idem., p. 682.
226
Idem.

252
private associations, churches, corporations, trade unions, and schools
could, on this theory, be described as law).

B. Cotterrell, Black, Tamanaha and Socio-Legal Studies

In the 1960s the term ‘sociological jurisprudence’ gradually fell out of

use as the expression ‘socio-legal studies’ slowly asserted itself. This new
orientation in the study of law and society shifts emphasis to the
importance of placing law in its social context, the importance of using
social scientific methods, and the importance of recognizing that many
traditional jurisprudential questions are empirical in nature and not just
conceptual. A theme that keeps recurring in socio-legal studies is the gap
between legal rules and actually lived social norms, that is to say, the gap
between ‘law in the books’ and ‘law in action’.

Freeman estimates that socio-legal studies had a big impact on the law,
on legal education and on law publishing; and that it redirected attention
on concepts such as discretion, on institutions such as tribunals, and on
different techniques of decision-making and conflict settlement, such as
alternative dispute resolution. 227

At the same time, however, socio-legal studies suffered from the

following shortcomings identified by Freeman: “Socio-legal studies was
largely lacking in any theoretical underpinning. The law … and the legal
system were treated as discrete entities, as unproblematic, and as
occupying a central hegemonic position. There was rarely any attempt to
relate the legal system to the wider social order or to the State. When
227
Idem., p. 684.

253
reforms were suggested … they were to make the legal system operate
more efficiently or effectively. And the emphasis was more on the
‘behaviour’ of institutions rather than on trying to understand legal
doctrine.”228

Moreover, the thrust of socio-legal studies is not, Freeman observes, what

sociology of law is about. The focus of the sociology of law, Campbell
and Wiles explained, is “no longer of the legal system, known and
accepted, but on understanding the nature of social order through a study
of law. … The goal is not primarily to improve the legal system, but
rather to construct a theoretical understanding of that legal system in
terms of the wider social structure.” 229

P Cotterrell too does not see socio-legal studies as sociology of law or an

aspect of it. He however argues that those studies constituted a ‘transition
phase’ towards the sociology of law. He envisions sociology of law as a
trans-disciplinary enterprise and aspiration to broaden understanding of
law as a social phenomenon.

“He emphasises the centrality of the sociology of law for legal education
and legal practice: ‘the methodology of sociological understanding of
legal ideas is the deliberate extension in carefully specified directions of
the diverse ways in which legal participants themselves think about the
social world in legal terms’. Sociology, Cotterrell argues, offers insights
into legal thinking and can transform legal ideas by re-interpreting them.
He uses the example of private purpose trusts. Cotterrell is aware that this
could lead to sociology recreating law in its own image. On the contrary,

228
Idem.
229
Idem., quoted at p.685.

254
he argues, when seen in this way it ceases to appear as ‘the invocation of
a competing academic discipline with the aim of colonizing law’. It is
rather ‘a necessary means of broadening legal understanding – the
systematic and empirical understanding of a certain aspect of socials life
which is recognized as legal’.”230

Cotterrell believes that law stands to benefit from sociologically-inspired

insights though, on the view of some legal sociologists, social insights
have the potential to distort legal practices.

The development of ‘sociological law’ is predicted by Donald Black in

his Sociological Justice (1989) wherein he identifies it with when lawyers
reflexively internalize the conclusion that sociology is the best guide to
legal outcomes. The sociology of law entails, in Black’s view, the
adoption of an observer’s perspective, a perspective that requires
detachment. Black believes that the findings of sociology of law are of
great relevance to participants in the legal system by challenging long-
standing conceptions about law.

“ ‘Official versions’ of the intentions and purposes of particular statutes

are not, as a result, granted automatic respect, but are instead subjected to
critical scrutiny. So too are the ‘conventional justifications of court
procedures, and the legal representation of clients’. The sociology of law
‘even suggests new possibilities for manipulating legal systems
deliberately in order to bring about desired results, techniques of social
engineering likely to become highly controversial as well as highly
effective’. It also puts into perspective ‘many of the most time-honoured
notions of lawyers and legal scholars’. Thus, discretion is shown to be not
230
Idem.

255
random and capricious … but highly regular and patterned (‘constrained
by the dictates of social laws’). Black’s sociology of law suggests also a
different understanding of discrimination; that it is not exceptional but
ubiquitous, and is not limited to the effects of social class or race. It is,
says Black, ‘an aspect of the natural behaviour of law, as natural as the
flying of birds or the swimming of fish’.”231

Brian Tamanaha’s Realistic Socio-Legal Theory: Pragmatism and a

Social Theory of Law (1997) proclaims a new version of sociological
jurisprudence that focuses on the social scientific study of law with the
overriding objective of bringing into legal theory an infusion of insights
gained from that study. “Tamanaha draws on philosophical pragmatism to
establish an epistemological foundation which specifies the nature of
social science and its knowledge claims, and a methodological foundation
which uses both behaviourism and interpretativism. He contrasts his
realistic approach to socio-legal theory with critical schools of socio-legal
theory, in particular with the critical legal studies movement of which he
is scornful.”232 He opines that “law is thoroughly a cultural construct,
lacking any universal essential nature”. Law, he says, is whatever we
attach the label law to.

What is significant about Tamanaha’s realistic socio-legal theory is, as

Freeman points out, his thesis that law is a social practice amenable to
social scientific study, and that legal theory and socio-legal theory have a
lot to learn from each other. A study on the concept of law cannot
therefore ignore such critical questions as why people obey or do not

231
Idem., p. 687.
232
Idem.

256
obey the law, why people resort to extra-legal norms and procedures to
resolve disputes, and how other societies manage disputes. 233

C. Unger: Three Concepts of Law

Roberto Unger takes up the issue of legal culture in his book Law in
Modern Society (1976)234 “Each society”, he asserts,” reveals through its
laws the innermost secrets of the manner in which it holds men together.”
He identifies and defines three types of law which he denotes as
‘customary or interactional’, ‘bureaucratic or regulatory’, and the ‘legal
order or legal system’.

Interactional law “is simply any recurring mode of interaction among

individuals and groups, together with the more or less explicit
acknowledgement by these groups and individuals that such patterns of
interaction produce reciprocal expectations of conduct that ought to be
satisfied.” Bureaucratic law “consists of explicit rules established and
enforced by an identifiable government.” Wherever bureaucratic law
appears, says Unger, there exists a state to define more or less effectively
the powers different groups may exercise over one another.

Law as legal order “is committed to being general and autonomous as

well as public and positive.” According to Unger the ‘legal order’
emerged with modern European liberal society. The distinction between
politics or administration, on one side, and adjudication, on the other,
became the cornerstone of constitutionalism and a guiding principle of

233
Idem., 690.
234
Idem., excerpt at pp. 732-737.

257
political thought. Unger draws attention to the fact that a legal order
operates against the backdrop of interactional and bureaucratic law and
that the differences among the types of law always remain fluid.

The State, a supposedly neutral overseer of social conflict, is seen by

Unger as “forever caught up in the antagonism of private interests and
made the tool of one faction or another.” In post-liberal society the State
takes on a welfare aspect. “Welfare emphases give rise to policy-oriented
legal reasoning, interest in substantive justice, general clauses in
legislation.”235

Unger emphasises collective interest in maintaining a system of social

relations in which people are bound to act compassionately. He therefore
sets great store on communitarianism. Communitarian concerns demand
the suppression of rabid individualism and the subversion of inequality.
The outcome of such an agenda would be the creation of confidence in
collective choices which in turn will make possible an ever more
universal consensus about the immanent order of social life.

D. Habermas: Tension between Facticity and Validity

The permanent tension in legal thinking between legal sociology and a

philosophy of law is well captured, Freeman observes, in the title of
Jürgen Haberman’s book Between Facts and Norms (1996). That tension,
Freeman explains, is that between ‘facticity’ and ‘validity’. The legal
system must be ‘socially effective’ and ‘ethically justified’.236

235
Idem., p. 692.
236
Idem., p. 693.

258
In Habermas’ assessment sociology describes law in language that neither
seeks nor gains an entry into the intuitive knowledge of legal participants;
sociology has also devalued law. He considers law as central to the
organization of today’s complex society. Law is “what is left from a
crumbled cement of society. Law has been deprived of the metaphysical
and religious support it earlier enjoyed. It must now find a new basis for
legitimation.

Habermas supplies that new basis in what he calls ‘the discourse

principle’. In terms of this principle, “only those [legal] norms are valid
to which all persons possibly affected would agree as participants in
rational discourses.” Further, “the only law that counts as legitimate is
one that could be rationally accepted by all citizens in a discursive
process of opinion and will-formation.”237

The core of Habermas’ thesis is that law is central to the integration of

modern societies; it is central to holding together societies that would
otherwise collapse. In other words, societies would collapse in the
absence of law as an integrative mechanism.

Many legal scholars have taken Habermas to task. Freeman submits that
Habermas overplays the centrality of law and that he is incorrect in
believing that sociology has devalued law238. Cotterrell senses that
Habermas “too readily assumes that the legal sociologist’s concern is to
emphasize law’s facticity as governmental direction and not also to
consider its validity – the conditions of its existence as a structure of

237
Idem., p. 694.
238
Idem.

259
reason and principle.”239 Tamanaha critiques the premium Habermas puts
on the centrality of law to the organization of modern society, as imbuing
law with an ‘heroic quality’. Tamanaha insists that

“just everything that doesn’t break society apart contributes to social

order: intersubjectivity, shared language, values, customs, conventions,
beliefs, practices, habits of action, role orientations, organized complexes
of action (institutional arrangements), associations, explicit co-ordination,
shared knowledge, self-interested action, survival instinct, altruism, the
market, the reinforcing effects of the successful conduct of affairs,
spontaneous social organization, and more, including all those traits
selected by evolution which have helped the human species thrive as
social animals. … and, yes, also law.” 240

E. Luhmann: Autopoietic Theory of Law

The autopoietic theory of law, writes Freeman, is associated with the

German writers Niklas Luhmann and Gunther Teubner, and is adopted
from biology.

“The word ‘autopoiesis’ was coined by a biologist to describe the self-

referential, self-replicating qualities of the typical biological system. In
most biological systems, the initial properties of a member of one
generation are controlled by properties of members of the preceding
generation. Since an autopoietic system can only use its own elements, it
‘constitutes the elements of which it consists through the elements of

239
Idem.
240
Idem., quoted at p. 695.

260
which it consists’. Such a system is operationally closed: ‘closure consists
in the fact that all operations always reproduce the system’. Luhmann
claims that law is an autopoietic system and so is operationally closed.
Law is distinguished from its environment as a set of normative, rather
than cognitive expectations. The autopoiesis of the legal system is
normatively closed in that only the legal system can bestow legally
normative quality on its elements and thereby constitute them as
elements. This function appears to be much like Hart’s rule of recognition
but there is an important difference. Hart’s rule of recognition took as its
referent the behaviour of officials and was therefore part of the society:
Luhmann’s function is a part of the legal system and is distinctly separate
from the society.”241

The autopoietic theory of law raises many questions, three of which may
here be highlighted. First, if all legal systems are autopoietic, including
the first ones, where did they come from and why did they emerge?
Freeman hypothesizes that “[u]nless the first legal system was not
autopoietic or not a legal system … it seems it must have had its source in
the extra-legal environment, whether this was religion, morality, or
power.”242 The source of Luhmann’s autopoietic legal system would
seem as mysterious as the origin of Kelsen’s original Grundnorm.

Secondly, how does a closed autopoietic legal system respond to

developments in its larger social environment? Luhmann’s reply is that
the legal system, though normatively closed is cognitively open. The
extra-legal environment, he goes on to add, is channelled into the legal
system and vice versa. This continuous ‘communication’ between the

241
Idem., pp. 700-701.
242
Idem., p. 703.

261
legal system and the extra-legal environment is what Luhmann calls
‘structural couplings’. He defines ‘structural couplings’ as “forms of
simultaneous relations” providing “a continuous influx of disorder against
which the system maintains or changes its structure.”

Thirdly, is Luhmann’s thesis a theory or a mere metaphor? Law and legal

systems tend to be conservative in nature and thus resistant to change
because they purport to preserve institutional stability and continuity.
This notwithstanding, the courts have demonstrated a creative ability to
develop and adapt the law to changed circumstances. Perhaps this judicial
ability to adapt the law to new situations could be explained by reference
to Luhmann’s theory of ‘structural couplings’.

“Legal systems are characterized by durability and stability and often

they are resistant to change. But occasionally radical changes occur:
Brown v. Board of Education [1954] and Roe v. Wade [1973] in the
United States, the weeping away of the marital rape immunity and the
doli incapax presumption in England. These examples reflect the
normative adaptability of the legal system to normative change within
society. The autopoietic system is open to facts but these are values. We
could dress them up as facts, but then what sense would there be in
calling the system closed? Luhmann’s answer is to invoke the structural
coupling … Structural coupling is non-causative in nature: changes in the
moral environment do not cause normative adjustments in the system,
because it remains an intra-system choice whether or not the change
should be made. … Of course, it was ultimately the ‘choice’ of judges to
reject the ‘separate but equal’ doctrine, to give women greater

262
reproductive rights. But there were constraints on these choices which to
a large extent ‘caused’ such changes.” 243

Chapter Ten
243
Idem., p.702.

263
 Economic Theories of Law

In the social and political theories which they propounded, Karl Marx
(1818-1883) and his great friend Friedrich Engels (1820-1892)
interpreted law and social evolution in terms of economics. In their view
primitive tribal society contained no anti-thesis within itself because there
was equal distribution of commodities. Primitive society was a
communist order, an Eden. This communist order was soon perverted as a
result of selfishness and greed. Distribution became unequal, resulting in
the destruction of the communist society. The new society that emerged
was split into two classes, corresponding to the division of capital and
labour. The value of commodities then came to be governed by the cost
of the labour required to produce it. The state superceded the tribal
society and became the instrument of the stronger class.

In the modern capitalist state a small minority controls the economic

resources of the country and dominates the labouring majority. A tension
exists between capital and labour. This tension will eventually break into
conflict. The majority will revolt against the minority, gain control of the
economic resources and seek to eliminate the recalcitrant minority. The
state that will thus be established after the popular revolt will be the
‘proletarian dictatorship’. The distribution of commodities during the
proletarian dictatorship will be according to the maxim: ‘from each
according to his ability, and to each according to his needs’. Inequality
will inevitably persist and State organization will continue to be

264
necessary. Out of this conflict will eventually emerge communism or the
classless society. Domination will cease; inequality will vanish; and with
them the State and law will disappear as well.

From all this the following four doctrines are deducible as to the nature of
law. (1) Economic determination of law: law is a superstructure on an
economic system; economic factors are independent of and antecedent to
law. (2) Class character of law: law is an instrument used by the
economic rulers to keep the masses in domination. (3) Identity of law and
state: Law and the state in capitalist societies together form an apparatus
of compulsion wielded by the capitalist minority to oppress and exploit
the working majority. Even in the proletarian dictatorship law and state
will remain as instruments of compulsion. There will still be the need to
force people to work, to punish wrongdoing and subversive activities, and
to maintain some inequality of distribution, which is still unavoidable. (4)
Withering away of law and state: With the advent of communism or
classless society, domination and inequality will cease to exist. Law and
the state being instruments of domination will therefore become
unnecessary. Both will ‘wither away’ (not destroyed, as anarchists would
want), and will be replaced by ‘an administration of things’.

Marx and Engels therefore developed no general theory of law because

they conceived of law as an instrument of domination to be done away
with, not developed and elaborated. In the period of the proletarian
dictatorship, however, law will continue to exist; but then, only as a
means to an end, namely, to prepare the way for the classless society or
communism. Law therefore exists in the proletarian state only as a
temporary expedient; and then merely as an instrument of government
policy.

265
Section 1 Marxism and Law

Marxism “is a system of sociology, a philosophy of man and society and

a political doctrine. It is unique in that no other body of social thought
became the doctrine of an important political movement and ultimately
the orthodoxy of ruling parties in much of the world.” 244 The father-figure
of Marxism is Karl Marx. He saw human societies as systems, as systems
that are inherently unstable. Of these systems, Marx identified the
economic system as the most important. He called it the ‘base’ or
‘infrastructure’; and he called everything else (law, religion, ethics,
political institutions and so on) the ‘superstructure’.

Marx was a materialist and in his search for an explanation of

development and its principle he found the answer he was looking for in
Hegelian dialectics. “For Hegel history was a process in which the
Absolute progressively unfolded itself, revealing more of itself in later
periods than in earlier. The dialectic was the clue to this development.
From the Greek (meaning argument or debate), the dialectic is the theory
of union of opposites. The idea is to be found in Plato who regarded
contradictions as obstacles to arriving at the truth and used the dialectic to
rid himself of them. To Hegel, however, ‘the power of the negative’, as
he called it, was at the root of everything. There was always a tension
between any present state of affairs and what it was becoming. But it was
only through this tension that any progress towards truth was possible.” 245

244
Freeman, Lloyd’s Introduction to Jurisprudence, p. 953.
245
Idem., p. 954

266
Drawing insights from Hegel’s dialectics Marx was able to depict society
as full of contradictions and to develop from that, concepts such as
alienation. He was also able to show that phenomena did not exist in
isolation and that therefore they ought to be studied in their movement
and development. That demonstration led him to the conclusion that
capitalism is a transient phase of human development. By combining
Hegel’s dialectic with his materialist theory of knowledge Marx came up
with dialectical materialism.

A. Historical Materialism

Marx denoted as historical materialism the application of dialectical

materialism to human relations within society, especially to the evolution
and development of human relations. He reasoned that the process of
thinking was nothing else than the material world reflected by the human
mind and translated into forms of thought.

The Marxian theory of history is premised on the theory that the nature of
individuals depends on the material conditions determining their
production. Marx posited that an understanding of the productive activity
of man was critical to an understanding of man and man’s history. What
individuals are, Marx wrote, “coincides with their production, both with
what they produce, and with how they produce.”246 To him, the primary
factor in history is ‘self-creation through labour’; the secondary factor
consists of ideas and concepts (political, legal, religious, philosophical
and so on) through which men interpret man’s activity.

246
Marx & Engels, The German Ideology (1845), p.31, quoted in Freeman p. 956.

267
For Marx, the principle governing all human relations is to be found in
one common end that all men pursue, namely, the production of means to
support life and exchange of things produced. “There are two factors in
production: ‘productive forces’, the instrument of production including
labour and implements as well as the knowledge and skills of those who
produce and the ‘productive relations’ between men. The two are related
so that as one changes so does the other.” 247

Marx thus wrote in The German Ideology that “the aggregate of

productive powers accessible to men conditions the state of society.”
And, in The Poverty of Philosophy he wrote that “a change in men’s
productive forces necessarily brings about a change in their relations of
production.”248 These postulates would appear to suggest that Marx held a
‘technological’ theory of history. “But it is also apparent that for Marx
productive forces, whilst the most prominent factor determining
productive relations, are not the sole factor. The economic structure of a
society depends on the productive forces it possesses, but only against a
background which includes the historical circumstances and social forms
in which these forces happen to be acquired.”249

In his ‘scientific account of social change’ Marx traces productive

relations through a number of stages (co-operative stage, stage of social
revolutions brought about by new inventions) and conceptualizes history
as a history of class struggles. For Marx, the particular structure of the
classes at ant time is determined by the mode of production. However,
contradictions exist within the system. These contradictions cannot be

247
Freeman, p. 956.
248
Idem., quoted at p. 957.
249
Idem.

268
resolved within the framework of the system and thus lead to higher
stages of development. Marx “saw the contradictions within capitalism
leading to increasingly acute conflict which only a revolution could
resolve. Thus … would the working class acquire political hegemony and
found first a socialist, then a classless communist, society. Only then did
he believe man’s essence would be realized.”250

B. Infrastructure and Superstructure

The terms ‘infrastructure’ and ‘superstructure’ are two key concepts in

Marxist thought. The ‘infrastructure’ is the economic structure of society,
the ‘base’ or ‘real foundation’ of society. The ‘superstructure’, on the
other hand, is everything else which rose from that ‘real foundation’. The
superstructure is not economically important. It exercises influence upon
the course of historical struggles and in many cases, said Marx, determine
their ‘form’ in particular. In Critique of Political Economy (1859), Marx
wrote: “The mode of production of material life determines the general
character of the social, political and spiritual processes of life. It is not the
consciousness of men that determines their being, but, on the contrary,
their social being determines their consciousness.” 251

Marx opposed the idealist thought then dominant that law was
autonomous and played only a casual role in the historical process. He
was insistent that ‘revolution’ was not ‘made by law’. He pointed out that
a legal system can easily be projected as independent of its economic
content in the course of professional development so that the connection

250
Idem., p. 958.
251
Idem., quoted from excerpt at p. 992.

269
between them can become obscured. Law for Marx has just as little an
independent history as religion.

Marx and Engels contended that law was subsidiary to economic

relations, indeed derivative from them; law was lacking in autonomy and
potential in any social engineering. Engels in fact claimed that economic
relations were reflected in legal principles: “the jurist imagines he is
operating with a priori propositions, whereas they [i.e., the propositions]
are really only economic reflections.”252

In the view of Marx, legislation did no more than proclaim, express in

words, the will of economic relations; and juridical relations are but the
reflex of the real economic relation which determines the subject-matter
comprised in each juridical act.” 253 He however stresses that laws
‘stabilise’ relations of distribution and that this has an effect on
production which requires to be determined in each specific instance.

It is the view of most economic historians that law is a dependent

variable, a symptom rather than a determinant of the means and ends of
economic process. Legal historians recognize that the relationship
between law and economy is problematic, and that law may affect the
economy. But they argue that legal institutions have an autonomy of their
own which, in varying degrees, makes them ‘exogenous variables’ in any
process of economic change.

Some scholars have shown, from case studies, the influence of economy
on law and also how the law helps to forge major changes in the

252
Idem., p. 959.
253
Idem.

270
economy. Courts can engineer the facilitation and legitimization of
‘socialist’ ownership or of industrial capitalism. Judges can mould the
law so as to promote, for example emergent mercantile interests, resulting
in the redistribution of power and wealth in society. The law can thus be
moulded to become more functional, more instrumental. 254

C. Ideology and Class Domination

Although Marx saw history as the history of class struggles, he stressed

that a class did not really exist until it became conscious of itself as such.
He rejected the theory that classes are distinguished merely by wealth and
poverty.

“He also rejected a definition of classes in terms of their sources of

revenue. In Capital he writes that there are three large classes in capitalist
society, wage labourers, capitalists and landowners. His reason for
distinguishing these three is that he regards the conflicts of interest
between them as fundamentally more historically important than conflicts
within them, or conflicts within them, or conflicts between them and less
potent classes (such as the peasantry and the petty bourgeoisie) … He
saw a process, however, whereby those landowners would be squeezed
out and two classes would remain; bourgeoisie and proletariat. In The
Communist Manifesto these are ‘two great hostile camps’.”255

254
Idem., 962-963
255
Idem., p. 964.

271
Marx was distrustful of the peasants, the intelligentsia, and the drop-outs
of society whom he called the Lumpenproletariat. He saw the potential
for each of these three groups to be reactionary, each selling its services
to the bourgeoisie. He this pinned his faith upon the urban proletariat to
bring about the revolution of the proletariat he foretold.256

The concept of ideology is critical to Marxian understanding of law. In

The German Ideology, Marx posited that ideologies express or justify the
interests of dominant classes. The ‘demystification of ideology’ entailed
that history should not be written within the constraints of the ideas of the
dominant class. False consciousness, Marx cautioned, was a major
obstacle to revolution. For him, there could be no revolution until the
proletariat developed class consciousness and demystifies their bourgeois
ideological framework.

All members of the ‘ruling class’, Marx pointed out, have similar
processes of socialization as well as similar experiences of productive
activities. That is why the ruling class has a common perception of its
interests. The dominant ideology of the ruling class then gets transmitted
to the rest of the population because, in the words of Marx, “the class
which is the ruling material force is at the same time the ruling
intellectual force.”

D. Withering Away of Law and State

256
Idem.

272
Marx saw the state as an instrument of the ruling class for class
oppression. “The executive of the modern state,” he wrote in The
Communist Manifesto, “is but a committee for managing the common
affairs of the whole bourgeoisie.” But he also saw the state, secondarily,
as independent from and superior to all social classes, as being the
dominant force in society.

However, he characterized as ‘Bonapartism’ the extreme manifestation of

the state’s independent role. For him, the Banapartist state was the
protector of an economically and socially dominant class even when it
purported to be politically independent from any given class. He later
distinguished between the state acting autonomously on behalf of the
ruling class and its acting at the behest of that class.257

For Marxists, the autonomy of the state is a relative autonomy because

the state, they argue, remains for all practical purposes the state of the
ruling class. The state, they further argue, is constrained to serve the
needs of capital because of external forces, forces that originate in the
national and international capitalist context in which it operates.

It is however argued by some authors that the state as an autonomous

structure is a structure with a logic and interest of its own not necessarily
equivalent to or fused with the interests of the dominant class in
society.258 Freeman argues that:

“The degree of autonomy enjoyed by the state is dependent on the

hegemony of the dominant class: where the class is truly all-powerful in

257
Idem., p. 970.
258
Theda Skocpol, States and Social Revolution (1979), cited by Freeman, p. 970.

273
economic, political, social and cultural terms, and so free from effective
challenge, it is likely that the state will also be subject to its hegemony.
Where, on the other hand such hegemony is strongly challenged, the
autonomy of the state is likely to be substantial. Indeed, where there is
intense competition and resulting political instability, the state may
assume authoritarian forms and free itself from constitutional checks and
balances. But in most ‘late’ capitalist societies capital has had to reach an
accommodation with organized labour and the state is left with
considerable autonomy. What is this autonomy for? Classical Marxism
responded … [that] it was to protect the existing social order and the
dominant class as the4 main, if not sole, beneficiary of that social order.
This leaves out of account other powerful impulses to state action
generated from within the state by people in charge of decision-making
power. The state makes possible the exercise of power: it is also the
source of status. Those holding powerful positions in the state may be as
interested in power, status and privilege as in the interests of capital. They
will not express themselves in terms of personal interest, rather in terms
of ‘national interest’, and those who seek state power usually find it easy
to convince themselves and others that their achievement of power is
synonymous with the ‘national interest’. And, on the whole, those in
charge of the state have believed that the ‘national interest’ is intimately
connected with the health of capitalist enterprise. This is not to say that
there is always congruence between state power and class interests.” 259

Arguably, the relationship between state power and class interests

involves a partnership. Socialist governments do accommodate the
interests of capital. Business interests, though antagonistic to socialist
governments, have understood that even these governments seek to
259
Idem., p. 971.

274
maintain the existing social order and to defend their class interests where
these are conceived to be in the national interest. Besides, capitalism
knows that only a small part of the state changes hands: the civil service,
police, judiciary and military remain virtually intact.260

Marx did not define law as such, but he argued that the main function of
law was to obscure relationships. The legal form, he said, was a mere
ideological cloak: it refers, for instance, to the right to enter freely into
contracts; but in the absence of equality of bargaining power, this
freedom of contract is illusory.

Again, the law pretends to neutrality, using concepts such as ‘equality

before the law’, ‘equal protection of the law’ and so on. But this is only a
legitimation and mystification strategy because the law takes no account
of the power given to one party by its different class position, the pressure
it exercises on the other, the real economic position of both, and the fact
that the worker is compelled by the concrete economic situation to forego
even the slightest semblance of equal rights.

Although Marxist writings are full of moral judgments, Marx stressed

that morality had no independence, no history; and that communists do
not preach morality at all. For Lenin, morality was what served to destroy
the old exploiting society. In his view, communists do not believe in an
external morality; they expose the “falseness of all the fables about
morality.”

Reacting to the notion of an ideal of justice canvassed by the French

anarchist Proudhon, Marx scornfully remarked in Capital: “Do we really
260
Idem., p. 972.

275
know any more about ‘usury’ when we say it contradicts ‘justice
éternelle’ … than the fathers of the church did when they said it was
incompatible with … ‘la volonté éternelle de Dieu’?”261

Marx decried ‘utopianism’ or ‘empty-phrase-making’ as spurs to

working-class action. It was his view that the working class has “no
ready-made utopias to introduce par décret du people”; emancipation
would come through struggle, a series of historic processes; the working
class has “no ideals to realize, but to set free elements of the new society
with which old collapsing bourgeois society itself is pregnant.” 262

Marx was clear that the new society he envisioned was a ‘higher’ form of
society, what he called a ‘human society or associated humanity’, that is
to say, the ideal society in which, under conditions of abundance, human
beings would achieve self-realization in a new form of social unity.
Freeman draws the conclusion that such a society was one of “true
freedom, with alienation overcome and the realization of human
nature.”263

Since Marx and Marxism reject morality and predict its withering away,
along with law, under communism, the question soon arose whether
Marxists believed in human rights. Marx himself did not appear to. He
saw ‘the rights of man’ as simply the rights of a member of civil society,
that is, of “egoistic man, of man separated from other men and from the
community.” In his view, the concept of human rights would be

261
Idem., quoted at p. 973.
262
Idem.
263
Idem.

276
redundant under communism because the conditions of social life would
no longer have need of such principles of constraint.

Law, morality and the state were thus temporary phenomena. Revolution
was inevitable. It would perforce break the power of the state. The
abolition of classes would entail the disappearance of the state.
Governmental functions would be transformed into simple administrative
ones. The bureaucracy and judiciary, typical manifestations of the state,
would disappear (that is, wither away, be abolished). Universal suffrage
would no longer serve to decide periodically “which member of the
ruling class was to misrepresent the people in parliament.” It would serve
the people, ‘constituted in Commune’, in the same way “as individual
suffrage serves every other employer in search for the workmen and
managers of his business.”264

Marx pointed out that between capitalist and communist society there
would be a period of ‘revolutionary transformation’, a period in which the
state would be “nothing but the revolutionary dictatorship of the
proletariat.”265 As used by Marx, the term ‘dictatorship’ did not convey
the same meaning as it does today. Marx “associated it principally with
the Roman office of ‘dictatura’, where all power was legally
concentrated in the hands of a single man during a limited period in a
time of crisis.”266

264
Idem., quoted at p. 978.
265
Idem.
266
Idem.

277
Section 2 Other Marxisms

The writings of Karl Marx continue to have a powerful and pervasive

influence on social and legal scholarly thought, generating diverse forms
of Marxism some of which include the summaries in this section.

A. Renner: Relationship of Property and Society 267

Karl Renner’s thesis appears to be that legal forms can remain unchanged
despite economic transformations in society. He seeks to demonstrate
how although legal concepts have remained stable their social functions
have undergone profound changes. To him, the social functions of legal
concepts have been adapted to changed circumstances; the idea of the
unchanging nature of those concepts being only an illusion. Renner
stresses the importance of history in understanding this development. In
his view, the penetration of the economic base of a legal concept is
critical for an understanding of that concept.

In his study, Renner focuses attention on the changing functions of the

legal institution of private property. He uses that institution to
demonstrate the functions fulfilled by legal institutions at particular
points in time.

“Thus he shows how in medieval society ownership symbolized a unit of

which the family farm was typical. Then the place of production and
consumption was the same and the legal concept of ownership
267
Idem., pp. 979-981.

278
represented its economic base. When, however, ownership of a complex
of things (now called ‘capital’) no longer coincides with the base of
personal work, it becomes a source of a new power of command. Renner
shows how the capitalist exercises a quasi-public authority over those
who are tied to him by a contract of service. The juristic institution has
not changed but its function has. The owner of certain things can now use
his ownership to control other persons and ownership becomes the centre
of a number of complementary legal institutions, like sale, loan, tenancy,
hire and contract of service. The latter is called a contract and emphasizes
‘will’ but the real expression of the capitalist’s power is not in the
contract but the internal rules regulating conditions of work. Renner
shows how in time the complementary legal institutions assume the real
function of ownership and this itself becomes an empty legal form. In this
way the concept of private ownership has become transformed into an
institution of public law … Renner’s ideas about the relationship of
property and society though dating from the early years of the last
century, are as apt to day as they were then. The twentieth century has
witnessed considerable inroads into property to protect tenants,
employees and consumers but the power of property remains, and the
question of control has not altered significantly.” 268

Renner shows that law might itself become an active agent in reshaping
social conditions. He demonstrates the relationship of law and economy,
showing that relationship to be subtle and complicated. He demonstrates
the part which legal culture has played in economic development,
showing, by way of example, how the English doctrine of estates
contributed towards a rapid shift from feudal to capitalist relations.

268
Idem., p. 980.

279
 B. Gramsci: Ideological Hegemony269

‘Ideological hegemony’ is a phrase and concept coined by Antonio

Gramsci. He identified two sources of class domination: popular
consensus engineered in civil society, as in the case of advanced capitalist
societies where the media, mass culture and the law take on a new role;
physical coercion or its threat by the state apparatus.

He argues that the existing order is strengthened and perpetuated by

certain ‘super-structural’ phenomena and that therefore the struggle for
liberation required the creation of a ‘counter-hegemonic’ world-view. He
sees revolution not as an event but as a process involving the integration
of ‘consciousness transformation’. He stresses the complex
interrelationship of politics, culture and ideology and posits that no aspect
of ‘bourgeois culture’ is immune from class struggle.

C. Pashukanis: Commodity-Exchange Theory270

In the eyes of Pashukanis legal theory is a historical inquiry. It is an

inquiry into history for two reasons. The first reason is that an
understanding of bourgeois forms of law requires an historical approach
to the question of law because law is a result of a specific stage of social
development only. The second reason is that the task of Marxist legal
theory is to demonstrate the transient nature of law. Pashukanis posits that
law exists “for the sole purpose of being utterly spent.”

269
Idem., p. 981.
270
Idem., p. 982-986.

280
He propounded a theory of law which he called the ‘Commodity-
Exchange Theory’. That theory centers contract as the foundation of all
law. Law arises out of the needs of the commodity form of production, he
argued. The commodity is the cell form of legal relations, he wrote,
arguing that this was so because capitalist society consists of producers of
commodities. “Commodities produced are then exchanged. All law is
directed towards oiling this process of commodity exchange between
subjects who act as ‘guardians’ of commodities and are created by law to
enable the commodity production form of society to function.

Thus, labour law was nothing more than a series of employment

contracts, family derived from a contractual view of marriage, and even
criminal law rested on a kind of bargain between the state and the citizen,
whereby equivalent punishments were meted out for particular acts and
the criminal bought off the blood feud or ‘paid for his crime’…
Commodity production develops through trader and law grows as trade
increase in importance. As exchange develops so also disputes increase
and a legal system has to develop to cope with these conflicts. Pashukanis
states that: ‘It is disputes, conflicts of interest, which create the legal
form, the legal superstructure’.”271

Pashukanis subscribed to Marx’s idea of the ultimate withering away of

law, to be replaced by administration. In a socialist society private law
would be swallowed up in the public sector and would disappear. The
public sector in a socialist community is conceived as purely
administrative, consisting not of fixed rules but only of guides to
administrative discretion. In that society man would become a ‘group
271
Idem., p. 983.

281
creature’ and there would be complete identity of interest. Morality, like
law, would also disappear since morality is also founded upon a concept
of exchange.

D. The Frankfurt School: Marxism and Social Psychology272

This school which developed as a critical school of Marxism in light of

the rediscovery of Marx’s writings has been instrumental in trying to wed
Marxism to social psychology. It notes the way in which society is
increasingly subjected to the control of technocrats. It criticizes the
oppressive complexity of advanced technological society. It points out the
ways in which technology and science create a specific type of
knowledge which is utilized to maintain domination and repression.
Technology, it is contended, has led to the generation of sufficient wealth
for the ‘ruling class’ to buy off the working class by turning them into
‘consumer robots’.

Section 3 Contemporary Theories of Justice

Justice relates to the quality of fairness, but the concept is somewhat

diffusive. Already, Aristotle distinguished between ‘corrective justice’
and ‘distributive justice’. The former has to do with justice between
parties to litigation, for example in tort claims. It does not take account of
large distributive issues in society as a whole. The latter is about the
appropriate distribution of goods to individuals in society according to
272
Idem., p.982.

282
such criteria as needs, desert, moral value and so on. Aristotle himself
was of the view that justice was done when a person received what he
was entitled to according to merit (‘just desert’).

The concept of justice however remains a contentious issue for modern

jurisprudence, especially in light of the dichotomy between the individual
and the community, on the one hand, and between freedom and equality,
on the other hand. Dominant contemporary writing about justice focuses
on distributive justice, that is to say, on the appropriate distribution of
goods in society. The issue is thus not about whether or not social justice
is a legitimate goal worth pursuing: there is general agreement that justice
and fairness are two qualities which society should pursue. Nor is the
issue one of definition: there is general agreement that the meaning of
justice and fairness is to give people what they deserve. But what do
people deserve? That is the debate.

This section sketches the various contemporary theories of social justice

as espoused by the main scholars who have given thought to this issue.

A. Rawls: Justice as the Greatest Equal Liberty

Proponents of welfare liberalism posit that social justice is satisfied when

people receive according to their needs. For example, the need for
medical care or housing or education is measured by the comparative
circumstances of people, that is, whether they are healthy or unhealthy,
able or disabled, employed or unemployed, housed or homeless.

283
John Rawls conceives of the welfare state as the basis of social justice.
He sees fairness as the indispensable attribute of the just state. His idea of
fairness includes what he calls the ‘right to basic welfare’ and the ‘right
to equal opportunity’. His ideas were initially expressed in A Theory of
Justice (1971) but later refined and reformulated in Political Liberalism
(1993). He propounds the following principles as forming the basis of a
just society. 273

Firstly, the principle of the greatest equal liberty: each person has an
equal right to the most complete system of basic liberties such as the right
to vote, freedom of speech, freedom of association, freedom of the
person, the right to hold property and freedom from arbitrary arrest and
seizure. Secondly, social and economic inequalities between individuals
are to be arranged (i) in a reasonable fashion to the advantage of all, or, to
the maximum benefit of the least advantaged in society (what Rawls
terms the ‘difference principle’), and (ii) that everyone should have fair
equality of opportunity to fill offices and other positions.

In Political Liberalism Rawls offers a political conception of justice by

accepting the ‘fact of reasonable pluralism’. He “postulates a four-stage
sequence whereby the two principles of justice are incorporated into the
institutions and policies of a constitutional democracy. The first stage is
the ‘original position’, followed by constitutional, legislative and judicial
stages. At the constitutional stage, the general structure of government
and the political process are embodied in the constitution. So are the
equal basic liberties of the first principle of justice.

273
A van Blerk, Jurisprudence – An Introduction, pp. 128-135; Freeman pp. 523-534,
and pp. 566-593 for excerpt of Rawls’ revised A Theory of Justice.

284
The second principle of justice is not, however … a constitutional sine
qua non for a constitutional democracy … [It] is incorporated only at the
legislative stage, and then only in so far as it is accepted by citizens.
Rawls thus has a dualist conception of constitutional democracy, with
what the ‘People’ will initially as a ‘higher law’ than what subsequently
emanates from legislative bodies. At the judicial stage, this dualism is
protected by the courts, one role of which is to protect the higher law
against challenges and encroachments by ordinary legislation. Rawls is
thus committed to the institutions of judicial review as a necessary feature
of a constitutional democracy.”274

Rawls in effect canvasses three principles of justice: (i) the principle of

greatest equal opportunity, (ii) the principle of fair equality of opportunity
to hold offices and other positions, and (iii) the difference principle. The
‘difference principle’ does not imply that the distribution of wealth has to
be completely equal. What it implies is that the unequal distribution of
wealth should be to everyone’s advantage.

The principle thus allows for a certain amount of difference between the
material conditions of individuals as long as it permits the improvement
of the position of those who are worst-off in society. Rawls believes that
greatest equal liberty must first be realized for the requirement of fair
opportunity to arise, and then for the difference principle to be applicable.
He gives precedence to the right to basic liberties because he believes that
the poor must not surrender their liberty in exchange for money.

Rawls’ proposal arises from his belief that capitalism creates some
injustice to citizens in that there will be some who will be lacking in their
274
Freeman, pp. 526-527.

285
needs. To remedy this perceived injustice Rawls came up with his
concept of social justice as being the distribution of wealth (the
proverbial ‘national cake’) to every individual according to their
respective needs. Rawls does not provide a clear formulation of how this
distribution will be done. His ‘difference principle’ suggests he does not
contemplate equal distribution. Distribution will be unequal (presumably
because the needs of some people will be more expensive or demanding
than those of others). But it would be an unequal distribution that will be
to the advantage of everyone. Many would have difficulty with this
concept. First, a concept of social justice that is based on some injustice
cannot be called justice. Secondly, the fact that there is no equal
distribution of wealth in itself might suggest some injustice.

A dramatic illustration of the effect of the priority which Rawls gives to

liberty is provided by one author in his imaginary encounter between a
rich man and a starving peasant. 275 In that encounter the peasant “reminds
the rich man that justice requires that he gives him bread, to which the
rich man answers that he can not be compelled to give bread to the poor
without his liberty to dispose of his property as he wishes being infringed.
The peasant speaking from his desperate need says that bread matters to
him more than liberty, but the rich man merely turns away. The battle cry
of the French Revolutionaries of 1789 was ‘Liberty, Fraternity, Equality!’
Brotherhood, Riddal claims, does not exist, and liberty and equality are
incompatible.”276

275
JG Riddal, Jurisprudence (1991) at p. 147, cited in Blerk, p. 130.
276
Quoted in Blerk, p. 130.

286
Rawls’ retort is that in his organization of the principle of social justice
liberty would take priority only when the basic needs of the members of
society would have been met.

The order of priority given to liberty in the Rawlsian system ensures

equal liberty for each person. Social and economic differences exist only
in so far as the difference principle allows. It is only when the complete
wellbeing of the least advantaged member of society will be improved
thereby that another member of that society may enjoy more wealth or
power than his fellow citizens. For Rawls, therefore, unequal distribution
of wealth is only permissible if it is to the benefit of all. Rawls would
allow substantial state interference, social regulation and redistribution of
wealth in order to enforce the difference principle in the interests of social
justice.277

Rawls grounds his welfare liberal justice in a refurbished version of the

mythical social contract theory. He takes to a higher level of abstraction
and generalization the social contract theory expounded by Hobbes,
Locke, Rousseau and Kant. The hypothetical origin contract as
adumbrated by these philosophers was entered into so as to bring about a
particular society or to put in place a particular kind of government.
Rawls however does not speak of the original social contract in this
sense. He does not use contractarianism to justify obedience to laws or
governments. For him, the ‘object of the original agreement’ was to
secure ‘the principles of justice for the basic structure of society’. He
expresses his concept of justice in terms of what people would agree to if
they were free to make that choice. He argues that certain moral
principles are binding upon us because they would be accepted by people
277
Idem., pp. 132-133.

287
like us in the ‘original position’. Rawls does not, as does naturalism,
assume that the principle of justice can be found though the use of reason
or in nature. Nor does he think they can be found empirically, intuitively
or within religion.278

A major criticism of Rawls is that in his concern to protect the poor from
their vulnerability to exploitation he in effect advantages ‘Free-Riders’ at
the expense of ‘Hard-Toilers’, thereby replacing the exploitation of the
underdog with the exploitation of the advantaged, which is to exchange
one unjust social order for another.279

B. Nozick: Justice as Entitlement

The demands of social justice are, in libertarian thinking, met when

people are rewarded in keeping with their contribution to society. The
maxim: ‘to each according to his works’ sums up the libertarian
conception of social justice. Furthermore, the libertarian conception of
social justice holds liberty as the highest political ideal, supports a right to
private property but not a right to welfare, and provides the basis upon
which rests the philosophy of free market capitalism.

A leading advocate of the libertarian concept of social justice is Robert

Nozick. In Anarchy, State and Utopia (1974) he attacks the theories of
Rawls and extols individualism and laissez-faire capitalism. Nozick is a
libertarian. For him, liberty and equality are irreconcilable ideals. His
point of departure is the inviolability of the individual. He argues that the

278
Freeman, p.525.
279
Blerk, pp. 133-134.

288
redistributive state put forward by Rawls ignores the reality that ‘there are
only individual people, different individual people, with their own
individual lives’, and that there can be no possible justification for
sacrificing some of those individuals for the sake of others. Social justice
exists, Nozick claims, when the individual is free to follow his own
interests in a free market system, unconstrained by any compulsory
community commitments.

Unhampered capitalistic enterprise, Nozick believes, must inevitably

raise living standards for everyone. Nozick … therefore challenges the
very premise of the redistribution of wealth as put forward by John
Rawls. According to the ‘entitlement concept of justice’ presented by
Nozick in Anarchy, State and Utopia, Rawls’ subscription to the
compulsory redistribution of income by the state to equalize material
circumstances is morally impermissible. It is morally illegitimate for a
government to call upon some of its people to meet the needs of less
fortunate citizens for food, shelter, medical care and other social benefits.
Nozick bases his moral argument upon a natural rights theory, and in this
he follows the tradition of Locke.” 280

According to Nozick, an individual’s natural rights are in-built constraints

upon the activities of all other individuals. This ‘moral side restraint’, as
Nozick calls it, means that every individual has a right to enjoy his
natural rights, subject to observing the natural rights of others. Oddly,
Nozick’s natural rights to life and health do not extend to those things
necessary to sustain life and health. It follows that “a starving person does
not have the right to compel a person with food to share that food, as this
would violate the natural right of the other person to dispose of his
280
Idem., pp.135-136.

289
belongings as he chooses. No one has the right to appropriate anything
over which another person has rights or entitlements … The right to life
means only the right not to be killed or injured by others.” 281

Nozick contends that a government which taxes its able citizens in order
to support the unable citizens is guilty of violating the rights of the able
citizens. In Nozick’s view this is morally impermissible. But he sees
nothing wrong with a government which refuses to tax its able citizens,
even in the face of extreme deprivation for the unable citizens. In fact, he
considers that such a government would be fulfilling its moral obligation
as a government. His objection to taxation appears rooted in his belief in
what he considers to be the absolutely inviolable character of property
rights.

“Nozick’s state therefore has no legal power to exact any more than is
required for the fulfillment of its minimal protective function. Any law
which compels the redistribution of wealth would offend the natural
rights of those who title to it. Distribution of wealth is nothing more than
a form of forced labour imposed upon the more productive members of
society. To tax a percentage of a worker’s salary is to convert the number
of hours spent earning that percentage into forced labour for another’s
purpose. The element of force comes in the form of the state’s coercive
intervention if the taxes are not paid. There are a range of techniques that
have, and are, employed by governments for egalitarian purposes which
Nozick considers morally abhorrent. He gives wage ceilings or minimum
wages, which result in the violation of the rights of those who could have

281
Idem., p. 138.

290
earned more for their labour and those who could have paid less for their
labourers, as examples of immoral government regulation.” 282

Nozick has faith in the free market and in voluntary philanthropy, a faith
apt to be considered by some as naïve in the extreme. He thus proposes
that the needs of the less fortunate in society should be met by assistance
on a purely voluntary basis. If no philanthropic assistance is forthcoming
then the less fortunate should, in Nozick’s view, be neglected; that
neglect, he argues, is a lesser evil than if the government took from its
self-supporting citizens to help those who are not self-supporting.

Nozick sees an intrinsic interconnectedness between the right to liberty

and the right to private property. He considers the right to private
property as an expression of the right to liberty and as increasing
freedom. He opposes redistribution of the resources or property of a
society for the following reasons: it cannot be justified on present social
grounds; it interferes with the liberty of individuals; and any ‘patterned’
distribution gives the state excessive power. He however recognizes the
principle of ‘rectification’ where there has occurred an unjust acquisition
or transfer of property.

Given Nozick’s deep individualism and his preclusion of any form of

paternalism from his scheme, the individual is apprehended as sovereign
over himself, and therefore cannot be restrained by legislation such as
that forbidding homosexuality, prostitution, possession of drugs, or
substance abuse. Clearly, the Nozickian individual is too isolated from
the context of his place in society. Nozick’s preclusion of any form of
state paternalism under his model of ‘minimal right-watchman’ state
282
Idem., p. 137.

291
against anarchists overlooks the ever increasing role of the state in
modern capitalism. His view that the less fortunate in society have no
claim upon their more fortunate fellow-citizens for assistance appears
cold and detached. His arguments against the extensive state and thus his
defence of libertarian capitalism leaves many questions unanswered, such
as the question where people get their rights from.

C. Dworkin: Justice as Rights

Ronald Dworkin grounds justice in rights. He is thus among those

thinkers who espouse rights-based283 moral theories, as opposed to those
thinkers (e.g. utilitarians) who put forward goal-based theories. The idea
of ‘justice as rights’ is traceable to Locke, Kant and the documents of the
American and French Revolutions. It signifies that political morality and
social choice are to be governed by considerations of the rights of
individuals. Those who espouse rights-based theories insist on the pre-
eminence of rights as valuable commodities, as important ‘moral
coinage’.

Rights, in Dworkin’s view, are ‘trumps’; they are based on a principle of

equal concern and respect, and the whole institution of rights rests on the
conviction that the invasion of a relatively important right is a grave

283
“A requirement is rights-based when generated by a concern for some individual
interest, and goal-based when propagated by the desire to further something taken to
be of interest to the community as a whole. The rights-based approach does not deny
that the interest of a particular individual is not also shared by others In the case of
human rights, all) in the community, but it would claim that the interest of each
individual qua individual is sufficient to generate the moral requirement.” Freeman, p.
540.

292
injustice.284 Rights are ‘trumps’ over justification based on political
decisions that state a goal for the community as a whole. In Dworkin’s
view, if a person has a right to do something, this means that it is for
some reason wrong for officials to act in violation of that right, even if
they correctly believe that the community as a whole would be better if
they did. Dworkin however concedes that interference with the rights of
the individual would be justified on ‘special grounds’.

For Dworkin, rights are not gifts from God (but he does not say where
rights come from), and anyone who professes to ‘take rights seriously’
must accept the ideas of human dignity and political equality. He argues
in favour of a fundamental right to equal concern and respect. But rejects
a general right to liberty for two reasons. He argues that such a right is
commonly used to support a right to the free use of property. He also
argues that such a right cannot explain or justify the desirable
discrimination between legitimate and illegitimate restrictions of
freedom.

D. Young: Justice as the Elimination of Domination and

Oppression

Feminist jurisprudence takes liberal conceptions of social justice to task.

A major critique is that liberal theories of justice fail to address the issue
of justice within the domestic arena and in the selection of primary

284
R Dworkin, Taking Rights Seriously (1978), p.199.

293
goods.285 Women, it is contended, are confined within the family setting
(private sphere) and theories of social justice have made little headway
into that sphere. There is therefore greater need for women to participate
in the public arena.

Feminists criticize the dichotomy between an ethic of justice and rights,

on the one hand, and an ethic of care and relationship, on the other hand.
They argue that the dichotomy is gender-related, the former being
associated with male thinking process and the latter with female ones. 286
Those who view the self as ‘separated’ from others, it is pointed out, are
more likely to voice a morality of justice, and those who see the self as
‘connected’ to others are more likely to express a morality of care. 287

The ‘sexual subordination of women in marriage’ is denounced as

required by, and as an effect of, the Lockeaian social contract. That
contract, entered into in order to bring about civil society and the state,
could not have materialized, it is argued, without a ‘sexual contract’
which subordinates women in marriage. 288 The ‘sexual contract’, it is
further contended, is where patriarchalism lives in the political and legal
order. Political right was separated from paternal right so as to enable
masculine right over women to be declared non-political.

“Locke’s separation was of the paternal from the political, but it can also
be seen as a separation of the private from the public, for the public
sphere embraces all social life except the domestic. An important result of

285
SM Okin, Justice, Gender and the Family (1989), excerpt in Freeman, pp. 629-
639.
286
Carol Gilligan, In a Different Voice (1982).
287
Lyons, ‘Two Perspectives: On Self, Relationships and Morality’, in C Gilligan et
al (eds.), Mapping the Moral Domain (1988) p.15, cited by Freeman, p. 549.
288
Carole Pateman, The Sexual Contract (1988), cited by Freeman, p. 549.

294
this conception of public and private is that the public world (or civil
society) is categorized as separate from the domestic sphere. The
principles of association governing the two spheres are quite distinct: the
public is governed by liberal criteria (rights, property, equality); the
private is based on natural ties of sentiment and blood and marriage
relationships --- there is no free individualism here, rather natural
subordination. By conceptualizing civil society as removed from
domestic life, the need to examine the latter disappears, and only re-
emerges when inequalities of gender are scrutinized by feminist
thinkers.”289

In order to address this nagging problem feminism initially espoused the

liberal argument that women, like men, are also rights-bearers,
autonomous human beings, and should therefore have equal opportunities
with men. The realization that this ‘assimilationist theory of equality’
would benefit women only if they acted like men engendered a radical
feminist approach to jurisprudence generally and to social justice in
particular.

A concept of social justice as a distributive issue is denounced as ‘a

mistake’. There is espoused a theory of social justice that addresses
injustice. Social justice, feminism contends, means ‘the elimination of
institutionalized domination and oppression’.290 Radical feminism de-
emphasises ‘sameness’ and emphasizes difference on the reasoning that
denial of difference contributes to social group oppression. A case is
made for ‘a politics’ that recognizes rather than represses difference.

289
Freeman, pp. 549-550.
290
Iris Marion Young, Justice and the Politics of Difference (1990), cited by
Freeman, p. 550.

295
Oppression, feminists argue, results from “often unconscious assumptions
and reactions of well-meaning people in ordinary interactions, media and
cultural stereotypes, and structural features of bureaucratic hierarchies
and market mechanisms --- in short the normal process of everyday
life.”291

E. Socialist Justice: Justice as the Fullest Self-Development

Socialists seek an egalitarian society and so postulate that social justice is

done only when everyone receives the same. For them, the highest
political ideal of socialist society is equality. Socialist equality includes
the right to self-development but not the right to private property.

Socialist theories are traceable to the theory of Karl Marx. Drawing

insights from Hegel’s dialectical methods, Marx provided an explanation
of the historical evolution of the material means of man. Marx posited
that human history is a continuous progress towards the realization of the
perfect state. He considered the history of the means of economic
production as the impetus for the social and political equilibrium in
human life. Material inequalities in society such as class disparities were
the source of the contradiction which Hegel denominated as ‘thesis’ and
‘anti-thesis’, which contradiction would be resolved by what Hegel called
‘synthesis’.292

291
Young, op. cit., p. 41, quoted in Freeman, p. 551.
292
Blerk, p. 142.

296
Marx contended that class struggle came about because of the acquisition
of private property and also because of the production process which
separated the labourer from the products of his labour.

“The state and its legal institutions were employed by the capitalist class
to guard their wealth from the proletariat. Law, itself, was merely an
expression of the underlying ideology and economic realities of capitalist
society. This profound contradiction could be resolved only in revolution;
revolution which would eliminate the causes of class distinction, which
Marx attributed to private property and the coercive nature of the state
and law. The result of the solution or synthesis would be a classless
society, without either law or state. There would be communal property,
and equality and justice would exist together.” 293

Like Marx, contemporary socialists attack capitalist principles and private

property of the kind which gives rise to social inequality. Unlike liberals
and libertarians who espouse negative freedom (i.e., the freedom of the
individual from public interference; a hands off policy by the state),
socialist theories see freedom as a positive concept, that is to say, as a
right to fulfillment in society, a right which imposes a correlative duty on
the state to act so as to ensure that fulfillment. Man’s social nature and his
right to positive freedom, socialist theories claim, will create greater
justice and humanity. This in turn will eliminate the perception of law as
an instrument of human exploitation.

Macpherson, a leading contemporary socialist theorist, attacks capitalist

conceptions of justice as flawed because capitalism, he argues, promotes
‘possessive individualism’. “Capitalism encourages people to seek power
293
Idem.

297
in order to gain from others, and this ‘extractive power’ is usually won at
the price of the self-development of those who become subject to that
power.”294 For Macpherson, the goal of social justice should be ‘maximal
self-development’ --- a self-development requiring socialism. A classless
society, he says, is possible and social conflict will come to an end. 295

In his theory of the basic right to ‘equal self-respect’, Karl Nielson296

propounded the following principles. Each individual has an equal right
to the most extensive system of equal basic liberties and opportunities
compatible with similar treatment for all. Once common social values and
the just entitlements of individuals have been provided for, then the
income and the wealth of the society should be divided equally among
everyone. Those burdens which are necessary to protect human welfare
should likewise be equally shared, subject to the limitations of differing
capabilities and circumstances. In Nielson’s view, the application of these
principles would result in a society without status or class, a society
where there would be an equal distribution of political and economic
power.297

Arguing that the capacity for self-realization is characteristic of the

human being, Carol Gould opines that socialist justice stems from the
conception of positive liberty as ‘the fullest self-realization of social
individuals’.298 The core of socialist justice, Gould claims, lies in the

294
Idem., pp. 142-143.
295
CB Macpherson, The Life and Times of Liberal Democracy (1977), cited by
Blerk, p. 142.
296
Equality and Liberty (1985), cited by Blerk, p. 143.
297
Blerk, p. 143.
298
CC Gould, Marx’s Social Ontology (1978), cited by Blerk, p. 143.

298
equal right of every individual to positive liberty, including equal access
to the means of production.

Christian Bay agrees with Gould that socialist justice depended upon an
equal right to positive freedom. But he goes further to divide positive
freedom into the following three categories: psychological freedom
(realization of harmony between inner motives and outer behaviour),
social freedom (freedom in relations between individuals, and between
individuals and groups or organisations), and cultural freedom (freedom
to outgrow those restraints which are prescribed by culture, convention or
ideology).299

Bay roots his argument in universal basic human needs which he

identified in order of priority as: physical needs (such as subsistence and
protection from physical harm), community needs (such as dignity, social
recognition or esteem), and ‘subjective needs’ (needs which we ourselves
develop, given our material circumstances and the confines of the times
in which we live).300

Milton Fisk relies more on human nature as a social product. To him, the
only universal basic human needs are the needs for physical nourishment,
sex, support and deliberation. 301 However, the fact that these needs are
common to everyone does not, Fisk argues, qualify them for priority over
those needs which are socially produced by the group to which one
belongs.

299
C Bay, Strategies of Political Emancipation (1981), cited by Blerk, p. 144.
300
Blerk, p. 144.
301
M Fisk, Ethics and Society (1980), cited by Blerk, p. 144.

299
 F. The Economics of Justice: Justice as Wealth Maximization302

The economic analysis of law is, on one level, a scientific alternative to

utilitarianism. A main problem for which utilitarianism provides no
answer is how one person’s happiness is to be compared with another’s.
Economists address this problem by vigorously making utility arguments
using the concept of value. They contend that a thing has value (that is,
utility) for a person when that person values it. The value of a thing for a
person is ‘measured’ by the maximum he would be willing to pay for
it303, or the minimum he would be willing to take to give it up. “The
arguments turn on concepts like efficiency, superiority, optimality,
allocation and distribution.” 304

These arguments have been influenced by Pareto (1848-1923) who

grounded the economic analysis of law on efficiency or what is
sometimes called ‘Pareto optimality’.

“A situation is said to be ‘Pareto-optimal’ if it is impossible to change it

without making at least one person believe he is worse off than before the
change. A change is ‘Pareto-superior’ when at least one person believes
he is better off by it, while no one believes he is worse off. The
definitions of ‘optimality’ and ‘superiority’ do not depend on objective
assessments of good, but on subjective ones. Whether persons believe
they will be better off, worse off, or the same, under a proposed change,

302
Freeman, pp. 557-563.
303
But quaere, the fact that a person might be willing to pay yet lacks the ability or
capacity to pay.
304
Freeman, p. 557.

300
and how much, is measured by their willingness to pay for the change,
and how much. The ‘Pareto superiority’ standard only applies where
there are no losers. But most social policies and most rules produce both
winners and losers. If government were to act only where no one was
made worse off, there would be very little it could do. Are the Pareto
standards therefore of much value? Are they likely to appeal to a policy-
oriented lawyer?”305

An alternative approach to Paretianism is provided by the ‘Kaldor-Hicks

test’. That test is a form of analysis which purports to justify government
actions even when some persons are left worse off. The test

“requires not that no one be made worse off by a change in the allocation
of resources, but only that the increase in value be sufficiently large that
the losers could be fully compensated. The … test enables us to evaluate
social policies and legal rules that produce winners and losers. The
difference between ‘Pareto-superiority’ and ‘Kaldor-Hicks efficiency’ is
‘just the difference between actual and hypothetical compensation’. If
compensation were actually paid to losers, the ‘Kaldor-Hicks efficiency
move’ would become a ‘Pareto-superiority’ one.”306

Compensation that could be paid may actually not be paid either because
some losers deserve to lose or because it may be too costly to compensate
losers.

305
Idem., p. 558.
306
Idem.

301
The issue of the ‘economics of justice’ is taken up by Posner, with a
particular reference to the English common law. 307 According to him, the
common of England is best explained as if the judges were trying to
maximize economic welfare. The distribution of wealth, he says,
determines in part both the economic value and the optimal allocation of
resources in an economy. Under wealth maximization, judges are to
decide cases according to principles which will maximize society’s total
wealth. Wealth maximization is an example both of utility and autonomy.
Posner thus equates justice with wealth maximization.

307
Posner, The Economics of Justice (1983), cited by Freeman, p. 559.

302
303
304
Part III

305
 POSTMODERNISM

‘Modernism’ and ‘postmodernism’ are two ambiguous periodisations.

Freeman laments that ‘postmodernism’ is a notoriously ambiguous
concept. “Since it is post modern,” he wonders, “it seems it comes after
the ‘modern’, but is it a culmination of modernity, a phase in late
modernity, a continuation of modernity by other means?” 308

Modernism may be apprehended as: (i) a revolt against existing order, (ii)
a critique of the limiting qualities of form, and (iii) a belief in an ability to
go beyond form to function. “Looked at in this way postmodernism is the
realization that there is ‘no beyond’, no place ‘outside of the forms’.” 309

Postmodernist jurisprudence appeared about the late 1980s. Ac cording to

Douzinas and Warrington postmodern jurisprudence “refers back and
claims to overcome a historical period (modernity), or a system of
thought and regime of knowledge (modern), or a cultural and artistic
movement (modernism).” 310

Four strands of postmodernist thinking will be considered: postmodernist

jurisprudence, critical legal studies, feminist jurisprudence, and
communitarian jurisprudence.

308
Freeman, p. 1253.
309
Idem., p. 1254.
310
C. Douzinas & R Warrington, Postmodern Jurisprudence (1991), pp. 14-15, cited
by Freeman, p. 1253.

306
Chapter Eleven

307
 Postmodernist Jurisprudence

Post modernist jurisprudence focuses on four areas of discourse, namely,

the nature of the ‘legal subject’, deconstruction of dominant discourse,
decentering the state and decanonizing the law, and legal semiotics.

Section 1 The Nature of the ‘Legal Subject’

Traditionally, the focus of jurisprudence has been the legal system and its
properties such as order, coherence, determinacy, consistency and so on.
Postmodernist jurisprudence however shifts attention to a scrutiny of the
nature of the legal subject who understands the legal system and
appraises it to have these properties.

This shift may be considered an implied critique of standard

jurisprudential discourse. The criticism would appear to be that standard
jurisprudential accounts: misdescribe the nature of the legal system;
ignore or overlook the legal system’s necessary connection to human
understanding; and fail to bring out the subject’s contribution to the legal
system, thereby shielding the subject from intellectual scrutiny.

The legal subject, postmodernists contend, is socially constructed (i.e.,

moulded or influenced by society) and thus not necessarily a coherent,

308
rational and freely choosing person who can in ordinary circumstances be
held accountable for his actions. It is therefore crucial, postmodernists
argue, to examine the ways in which this social construct has coloured the
legal subject’s understanding of the legal system. Accordingly, the legal
subject ought not to be shielded from jurisprudential scrutiny.

However, in the view of some scholars, the legal subject ought to be

shielded and protected. Ronald Dworkin, for example, argues that “once
the legal subject has been installed as the interpreter and hence arbiter of
the nature of law, psychological and ideological contributions to what she
interprets are wholly beyond the bounds of jurisprudential scrutiny. All
arguments must be directed instead to the nature of the object she
constructs.” 311

JM Balkin disagrees. He argues that conventional jurisprudential

discourse either de-emphasises or ignores the fact that our subjectivity
affects the process of legal understanding. In his ‘Understanding Legal
Understanding: The Legal Subject and the Problem of Legal
Coherence’312 he indicates three ways in which this happens: (i) subjects
bring ‘purposes’ to their understanding of law; for, legal understanding is
a ‘purposive activity of subjects’; (ii) judgments about the law rest on the
‘nature of the self’; they are ‘shaped by the self’s psychological needs’;
(iii) legal understanding is also ‘a source of power over the legal subject’.

Balkin contends that legal understanding is something that happens to us

and changes us. “It is a type of receptivity, of vulnerability, which affects
us as much as it affects the law we attempt to understand. Legal

311
Quoted in Freeman, p. 1256.
312
(1993) 103 Yale L. J. 105; see extract in Freeman, pp. 1292-1308.

309
understanding thus makes the legal subject a locus of ideological
power.”313

Section 2 Deconstruction of Dominant Discourse

Postmodernist jurisprudence has a political agenda. That agenda is the

deconstruction or subversion of dominant discourse so as to bring about
‘radical democracy’. For postmodernists politics is the everyday
experience of ordinary people. According to postmodernists, ‘univocal
projections’ of dominant social view-points or visions (what is sometimes
referred to as ‘master narratives’) suppress, subordinate or marginalize
alternative social visions, relegating them to the status of ‘exception to
the rule, counter-tradition or minority perspective’.

Postmodernists believe equality and rights discourse play a fundamental

rule in ‘reconstructing collective identities’. They believe that it is critical
for the state itself to be converted from a source of stability to a source of
change. They are committed to ‘deconstructing’, that is to say, subverting
or undermining, dominant discourse as a strategy for bringing about
change. “Postmodernists believe that the potential for subversive struggle
is particularly propitious given the discrediting of Marxism, the
instabilities of late capitalism and the contradictions of the bureaucratic
Welfare State. These faults and fissures are seen as a source of resistance
and freedom.”314

313
Quoted in Freeman, p.1257.
314
Idem.

310
The political agenda of postmodernists is to bring about radical and plural
democracy. Freeman refers to the observation of Aronowitz that the
contemporary state, reflecting the logic of modernity, is characterized by
extreme centralizing tendencies. The modern state is colonizing,
totalizing, and bureaucratic. The envisioned postmodern state, by
contrast, is minimalist. It is minimalist because radical democracy
depends on the proliferation of public spaces where social agents become
increasingly capable of self-management.315

Does postmodernist deconstruction necessarily lead to beneficent

outcomes? In his The Theory of Communicative Action (1984)316, Jürgen
Habermas argues that a strategy of rational discourse leading to a rational
consensus or agreement will preserve humanist values from harmful
forces. Another strategy for ensuring that deconstruction leads to
beneficent outcomes is an appeal to pragmatism. Pragmatism, Freeman
points out,

“rejects foundationalism: knowledge is radically contingent; the test of

knowledge is efficacy; thinking is instrumental, functional, problem-
solving; … pragmatism is progressive, emancipatory and democratic.
Pragmatists are concerned with the relation ship of knowledge and power
and the ways in which discourse, whether in science, politics or ethics, is
linked to structures of domination. When pragmatists ask whether a
particular practice works, we must ask ourselves ‘Works for whom? Who
benefits and who loses from existing political, economical and legal
structures?’”317

315
Idem., pp. 1257-1258.
316
Cited in Freeman, p. 1258.
317
Idem.

311
Section 3 De-centering the State and De-canonizing the Law

Postmodernists attack the modern democratic state. In their view the

modern bureaucratic state has ‘colonized other life-worlds’ and has
inappropriately interfered with the functioning of other subsystems. As a
result, the state has become dysfunctional. That dysfunctionality
manifests itself in the distortion of human relations and in inefficiencies
in managing economic and social problems.

Postmodernists propose as an alternative to the dysfunctional state, the

conversion of the state into what Sousa Santos calls an ‘absent structure’.
They posit the autonomy of the law as a system of social regulation. They
emphasize legal pluralism, in other words, the fact that the state is not the
only source of rules of law.

Sousa Santos318 points out that the postmodernist project “decenters the
state by pointing to the plurality of legal orders, both state and non-state
existing in the same political space.” He also points out that the state has
become more problematic as a social actor, and that this fact makes its
absenteeism more untenable. He argues that analytical focus should be on
the state as contested terrain in which various social relations (state and
non-state, local and non-local) interact. He believes that such interaction
will result in decentering by the state, as for example, in the growth in
recent years of alternative dispute resolution and community policing.

318
Idem., p. 1259.

312
The political agenda of postmodernism, Freeman notes

“will emphasise redistribution of economic resources as well as the

distribution of ‘postmaterialist’ goods such as a better environment and
peace and greater democratization. It will lead to the empowering of
victimised groups. And law will be ‘decanonized’, as it proves
ineffective, opening a ‘gap in social imagination’. Social change will
follow as ‘autonomous subjectivities … free themselves from the
prejudices of legal fetishism’.”319

Postmodernist preference for the smallish, localized narrative, and

rejection of the large narrative does not appeal to some feminists and to
the exponents of so-called ‘outsider jurisprudence’.320 Some feminist
scholars argue that postmodernist theory rules out the sort of critical
social theory that employs general categories like gender, race and class;
whereas one cannot understand the full dimensions of the subordinate
position of women without grand narratives. Critical Race Theory denies
that the experience of Black people can be understood without discussing
the large narratives of societal racism in its historical context and its
continuing structural manifestations.

319
Idem., p. 1260.
320
The movement known as Critical Race Theory is a jurisprudential theory that
argues the importance of race consciousness and offers revisionist, racial critiques of
civil rights scholarship, in opposition to the colour-blindness of liberal scholars. For
extracts of contributions by notable scholars of the CRT movement such as Barnes,
Delgado, Harris, Ball, Crenshaw, Johnson, and Hernăndez-Truyol, see, Freeman, pp.
1330-1374.

313
Section 4 Legal Semiotics

Semiotics is the study of signs and symbols, especially in writing, and of

what they mean and how they are used. Language is central to the nature
of law. Accordingly, the aim of legal semiotic study is to understand the
system of signs which creates meaning within a culture, to understand the
underlying structures that make meaning possible. The legal semiotician
therefore seeks to identify the ‘grammar’ of the language game of legal
discourse.

There are acceptable moves available in the language game of legal

discourse. These, says Balkin,

“may occur at the level of permissible argument forms, modes of factual

characterization, categories of social perception, or in many other ways.
The semiotician traces the way the system produces meaning … and tries
to see the gaps or uncertainties within the structure, the many different
levels at which rhetorical tropes [i.e., figurative use of a word or phrase;
repeatable forms of argument] can occur, and the many possible ways of
redressing them.”321

For example, in English court decisions there is frequently a resort to

‘figures of artificial or legal reason’ such as ‘the reasonable man’, ‘the
officious bystander’, the opening of the ‘floodgates’, ‘good faith’,
‘justice’, ‘honour’, ‘equity’, ‘immemorial usage’, and so on.

321
Quoted in Freeman, p. 1261.

314
Good legal analysis has always concerned itself with modes of legal
argumentation. Legal semiotics goes beyond legal analysis by
systematizing and organizing the process of discovery in legal analysis.
Besides, the legal semiotician is interested in ideology. He is interested in
it because, as Balkin points out, ideology is constituted in part by the very
patterns of argument and factual characterization that persons within the
legal culture adopt.

The goal of legal semiotics is much similar to that of critical legal studies.
That goal is to demystify and to debunk legal reasoning. By
demonstrating the indeterminacy and the political character of legal
reasoning the semiotician, like the critical legal studies scholar, seeks to
denude legal reasoning of its seeming naturalness and legitimacy. Legal
semiotics has thus been able to demonstrate that the same forms of
argument repeat themselves.

“As Balkin points out, this has three possible implications. … First, it
may suggest that legal discourse is ‘formulaic’ and so does not determine
the outcome of cases. … And, if legal reasoning does not determine
cases, something else, politics or ideology, does. Secondly, demonstrating
the formulaic character of legal reasoning may be thought to undermine
its claim to authority and respect. … Thirdly, the demonstration that legal
reasoning was formulaic pointed to an incredible similarity between legal
argument and political argument … [although] language in law is
institutionally controlled by legislation and precedent.” 322

In his Languages of Law (1990), Peter Goodrich uses semiotic method

and French psychoanalytic theory (i) to unravel the forms and
322
Idem., p. 1262.

315
appearances of law, and (ii) to show how law’s different forms legitimate
the practice for the legal subject. 323 Part of Goodrich’s project is to
reconstruct the English common law by deconstructing its myth.

“To study the common law”, he says, “is to study it as tradition, as a

plural set of practices which developed over long periods of time … as a
mixture of image and myth, oral memory and written text, custom and
judicial legislation … It is to study a body of texts and contexts in which
fiction is as forceful as analysis, image is as significant as rule and the
play of memory as strong as the logic of argument.” 324

Goodrich places the discourse of modern democracy along side these

traditional myths of the common law. His deconstruction of the myths of
the common law involves a critique of the normative conception of
legitimation, law and rights.

For Goodrich, the law of the constitutional state is legitimating discourse

since it relies on norms, rights and justice. By contrast, Goodrich sees the
system of constitutional democracy as based on a tradition which
attempts to ground its legitimacy on the consent of the people. The
paradox says Goodrich, is that the people are absent and the agreement
was never reached. 325 He contends that in the imaginary social contract
“the sender and the receiver of the message are one and the same; the
contract separates the parties to the exchange simply so as to unite them
indissolubly, textually, legally.” And yet, this paradox is at the root of
law.

323
Idem., p. 1263.
324
Idem.
325
Idem.

316
 Chapter Twelve

Deconstructing the Liberal Legal Tradition: Critical Legal Studies

In the late 1970s there emerged in the United States of America a radical
movement of legal thought known as Critical Legal Studies (CLS). The

317
movement is sceptical of orthodoxy and is deeply disillusioned with
Western liberal legal scholarship.

“The critical legal studies movement (CLS) emerged in the US in 1977. It

was founded by a group of scholars who have become disenchanted with
the prevailing intellectual mood in that country. The main impulse of the
movement is to challenge liberal legal theory by debunking its claim to
determinacy, coherence and objectivity. CLS scholars see legal legalism
as an ideology whose undeserved air of legitimacy falsely persuades
society that prevailing social arrangements are necessary and natural.
They aver that if these belief structures which pervade legal and social
consciousness are removed society can be transformed.” 326

Orthodox legal thought distinguishes between legal reasoning and

political debate. CLS scholars however do not accept that there is a
distinction between law and politics. They attack mainstream scholarship
and teaching, arguing that there is no distinctive mode of legal reasoning.

To them, law is politics and has no existence outside of ideological

battles within society. They posit that law in fact is an instrument of
social, economic and political domination and, that it furthers the
concrete interests of the dominators and legitimates the status quo. For
CLS scholars, law is ideologically based and that being the case, all
scholarship premised on the law blend into political and ideological
debates. CLS scholars point to the labelling of particular judges as
‘conservative’ or ‘liberal’ as evidence of a general recognition that law is
political.

326
A van Blerk, Jurisprudence – An Introduction, p. 147.

318
CLS scholarship is thus politics and its goal is to transform society. It
argues that law promotes the legitimation of oppression. It advocates a
new critical method for the teaching and exposition of the law. It seeks to
transform society entirely by showing that there is an alternative to the
liberal order of domination and exploitation.

CLS scholars regard themselves as engaged in ‘legal insurgency’ to

unmask the political bias which underlies judicial and scholarly doctrine.
Given the clear relationship between law and politics, legal scholars who
empathise with the oppressed and the disadvantaged use their skills,
expressed in litigation and scholarly writing, to advance the cause of such
people.327

Section 1 Critique of Legal Liberalism

A major critique by Critical Legal Studies is directed against the liberal

legal tradition. The critique is in fact a three-pronged attack. One attack is
that liberal legalism generates a contradictory vision of human society. A
second attack is directed at the law’s claimed neutrality, objectivity and
rationality, and its tendency of mentally converting a person, an
abstraction, etc. into a thing. A third attack accused the law of promoting
the illusion that existing social arrangements are necessary. Critical legal
scholars then set out to expose: the internal contradictions that beset
liberalism; the indeterminacy, bias, incoherence and irrationality of the
law, and the reification of legal concepts; and the illusion of the necessity
of the status quo.
327
Idem., p. 148.

319
 A. Exposing the Internal Contradictions of Legal Liberalism

For leading CLS thinkers, liberalism is a system of thought that is

“simultaneously beset by internal contradiction … and by systematic
repression of the presence of these contradictions.” 328

Kelman perceives three central contradictions in legal liberalism. First, he

notes a contradiction between rules as the appropriate form for resolving
disputes, and situation-sensitive, ad hoc standards; in other words a
contradiction between rules and standards. The contradiction derives
from the question whether legal norms would attain a higher degree of
formal realizability when cast as rules or when cast as standards. Each of
these two positions has its advantages and disadvantages. Both are in fact
simply an invitation to choose between sets of values and visions of the
universe, liberalism/individualism and communitarianism/altruism.

“The formal argument about the use of rules or standards is thus related
to substantive ideals about the proper ordering of society. The
jurisprudential position that favours rules is linked with one substantive
ethical view (individualism): the jurisprudential view that favours
standards with another (altruism). Individualism is bracketed with
liberalism and the belief that all values are subjective: altruism with
collectivism and the belief that justice consists of order directed to the
achievement of shared ends … The modern era is an age of contradiction:

328
Mark Kelman, A Guide to Critical Legal Studies (1987), cited by Freeman, p.
1041.

320
though it is dominated by considerations of morality and policy, the
conflict between individualism and altruism remains. The judge is thus
constantly presented with a political choice.”329

Secondly, Kelman sees as another of liberalism’s contradiction the notion

that values or desires are arbitrary, subjective, individual and
individuating (individualizing) while facts or reason are objective and
universal. The identified contradiction here is liberalism’s distinction
between facts and values, and its separation of reason and desire.
Exponents of CLS contend that there is no objective good, and that
therefore it is only the satisfaction of preference that has any claim. They
further contend that values are not merely matters of taste. Rather, they
can be considered as universal maxims to govern human relationships,
practices and laws.330

Thirdly, Kelman identifies as yet another contradiction in legal liberalism

“an intentionalistic discourse, in which all human action is seen as the
product of a self-determining individual will, and determinist discourse,
in which the activity of nominal subjects merits neither respect nor
condemnation because it is simply deemed the expected outcome of
existing structures.”331 This contradiction invokes the well known eternal
conflict between free will and determinism.

“Liberal discourse is said to privilege intentionalist looking discourse

(which pictures human action as phenomenological, forward-looking,
free-will-oriented terms), just as it privileges a commitment to the Rule of

329
Freeman, Lloyd’s Introduction to Jurisprudence, pp. 1042-1043.
330
Idem., p. 1045.
331
Idem., quoted at p. 1041.

321
Law, individualism and value subjectivity. Determinist discourse, by
contrast, pictures conduct in backward-looking, amoral terms, with
conduct simply a last event in a chain of connected events so
predetermined as to merit neither respect nor condemnation. Kelman
illustrates this by reference … to the criminal law. He shows through a
series of examples the ways in which orthodox criminal law, premised on
liberalism and therefore on free will, often uses determinist discourse.” 332

On his part, Duncan Kennedy333 identifies a ‘fundamental contradiction’

in liberalism. That contradiction, he says, is that between individual
autonomy which one finds in the dominant liberal legal thinking, and the
notion of substantive altruism or communitarianism. CLS scholars
perceive liberalism to be corrosive in its anti-social and self-seeking
ends.334 They would want to see a higher level of altruism in society.
They want “communal sharing, citizen participation in social decisions
and an increased sense of voluntary care and cooperation among
people.”335

They propose communitarianism as an alternative vision of society.

Communitarianism, they explain, aims at attaining the common good, to
be achieved by what Roberto Unger calls ‘the tyranny of consolidated
property’. That property needs to be overthrown because it increases
some people’s dependence on others, thereby obstructing
communitarianism.

332
Idem., p. 1045.
333
‘Form and Substance in Private Law Adjudication,’ (1976) 89 Harvard L.R. 1685,
cited by Freeman, 1041.
334
Blerk, p. 153.
335
Idem.

322
Unger336 offers what he calls ‘a structure of no-structure’ as a blueprint
for a different social ordering. The new society that is proposed to be
built is “a social world less alien to a self that can always violate the
generative rules of its own mental or social constructs and put other rules
and other constructs in their place.”337

Unger thereby seeks to make social life resemble what politics is like in
liberal democracies. He is concerned to protect freedom better and, in this
enterprise, he sees a crucial role for law and legal thought. He proposes a
‘rotating capital fund’ to finance projects and to effect a ‘decentralization
of production and exchange’.338

For CLS scholars the liberal conception of a system of rights is also an

obstacle to the achievement of communitarianism. Unger therefore
advocates ‘the disaggregation [separation into component parts] of the
consolidated property right’. However, because of the problem of
domination and individualism, he concedes that the law might have to
recognise certain kinds of rights which establish what he calls “a specific
form of human connection that contributes to a scheme of collective self-
government and resists the influence of social division and hierarchy.” 339

Unger therefore proposes the creation of four types of rights. First,

‘immunity rights’: these establish the ‘nearly absolute’ claim of the
individual to security against the state, other organizations and other
individuals. Secondly, ‘destabilization rights’: these entitle individuals to
demand the disruption of established institutions and forms of social

336
Knowledge and Politics (1974), cited by Freeman, chp. 13, passim.
337
Quoted in Freeman, p. 1053.
338
Idem.
339
Quoted in Blerk, p. 153.

323
practice that have achieved ‘the very sort of insulation and have
contributed to the very kind of crystallization plan of social hierarchy and
division that the entire constitution wants to avoid’. Thirdly, ‘market
rights’: these are rights which give a ‘conditional and provisional claim to
divisible portions of social capital’. They are substituted for existing
absolute property rights. Finally, ‘solidarity rights’: these are the legal
entitlements of communal life; they foster mutual reliance, loyalty and
communal responsibility. 340

In Unger’s scheme of things, therefore, immunity rights are the

individual’s almost absolute rights to resist domination by others;
destabilization rights are the rights to disrupt, or cause to be disrupted,
established institutions (including conventional courts) and forms of
social practice which have contributed to the present hierarchies and
divisions in society; markets rights are rights to divisible portions of
social capital; and solidarity rights are rights which foster communal life,
including communal good faith, loyalty and responsibility.

Unger’s programme thus envisages opportunities for individuals to

change society from being based on individualism to being based on
community. 341 His communitarianism seeks a newly empowered and
expanded government with a multiplication of overlapping powers and
greater decentralization leading to the diffusion of power to all
individuals. 342

340
Freeman, p. 1053.
341
Blerk, p. 153.
342
Idem., p. 154.

324
In his What Should Legal Analysis Become? (1996) Unger focuses on the
role of law and lawyers in his communitarian society. He envisions the
creation of an informal communitarian legal institution. Legal expertise
will consist of a ‘loose collection’ of legal and political insights.
Adjudication will serve the larger of advancing the power of a free people
to govern themselves. Jurisprudence would have to develop conceptions
of constitutionalism, legislation and adjudi8cation which embody the
democratic ideal. In the new democratic and ‘less superstitious society’,
the courts and the Bar will be abandoned as well as ‘all claims to
monopolize in the name of expert knowledge an instrument of power’.

In Unger’s view, dominant trends in legal scholarship have not

contributed to serious social reform. According to him, ‘one dirty little
secret of contemporary jurisprudence’ is its discomfort with democracy.
This discomfort, he says,

“shows up in every area of contemporary legal culture: in the ceaseless

identification of restraints upon majority rule, rather than of restraints
upon the power of dominant minorities, as the overriding responsibility of
judges and jurists; in the consequent hypertrophy of countermajoritarian
practices and arrangements; in the opposition to all institutional reforms’,
particularly those designed to heighten the level of popular political
engagement, as threats to a regime of rights; in the equation of rights of
property with the rights of dissent; in the effort to obtain from judges,
under the cover of improving interpretation, the advances popular politics
fail to deliver; in the abandonment of institutional reconstruction of rare
and magical moments of national re-foundation; in the single-minded
focus upon the higher judges and their selection as the most important
part of democratic politics; in an ideal of deliberative democracy as most

325
acceptable when closest in style to a polite conversation among
gentlemen in an eighteenth-century drawing room; and, occasionally, in
the explicit treatment of party government as a subsidiary, last-ditch
source of legal evolution, to be tolerated when none of the more refined
modes of legal resolution applies. Fear and loathing of the people always
threaten to become the ruling passions of this legal culture.” 343

B. Exposing the Indeterminacy of Law and the Reification of

Legal Concepts

By indeterminacy CLS scholars mean that none of the answers that legal
rules yield are necessary consequences of the adoption of a given regime
of rules. The rule-system could also have generated a different set of
‘stabilizing conventions’ leading to exactly the opposite results.

To the question, ‘How can a legal system give the kind of neutral
decisions expected of it?’ the orthodox answer of liberal legal thinking
consists in an appeal to formalism, that is to say, the insistence that the
judge is not imposing his values (or anyone else’s) but merely
interpreting the words of the law. Hart concedes that judges exercise
discretion in interpreting the ‘penumbra’ of legal rules. Lon Fuller opines
that judges seek out the purpose behind the rule. CLS rejects formalism.
It argues that ‘purpose’ is equally as indeterminate as ‘discretion’.
Formalism, it contends, relies on a new kind of essentialism. In other
words, formalism relies on the belief that there are essential meanings to
words.

343
Quoted in Freeman, pp. 1054-1066.

326
In the CLS view,

“legal decisions are no more neutral than the decisions of a legislature or

an executive. Political choices are equally involved. The public/private
law distinction is exposed as chimerical … If the view that there is a line
between private and public law is a myth, the rules of private law cannot
be deduced from the interplay of free market forces. Contract law as
much as administrative law, property law as much as environmental law,
has to be chosen. There is nothing natural or neutral about it. Arguments
about deregulation and privatization are exposed for the shams that they
are. Those who wish to deregulate the free market or privatize the family
are only expressing a preference for one set of regulation, usually one less
susceptible to scrutiny and control, over another. A free market could be
one in which workers had decision-making power, a deregulated family
could be one which developed power and choices on children, but these
are not usually the models envisaged by their advocates.” 344

The CLS claim is that every case reveals ‘mirror-image’ contradictory

norms (i.e., principles and counter-principles) which permit and support
competing possible decisions. Nothing justifies or requires the
privileging, as the liberal legal tradition does, of the principle as opposed
to the counter-principle. That being the case, choosing the principle rather
than the opposing principle must be a reflection of conscious of
unconscious political or ideological preferences. 345

Duncan Kennedy gives the example of contract law here ‘there are fifteen
or twenty contract doctrines about which there is a conflict’. He

344
Idem., p. 1047.
345
Blerk, p. 151.

327
concludes that the opposing ideological controversies of politics are
reproduced in law and that liberal legalism consistently privileges the
dominant legal conceptions which favour individual autonomy. 346 Unger
thus contends that determinacy or coherence in the law cannot be
presumed. It cannot be presumed because law is patently the outcome of
contingent power struggles or of practical pressures lacking in rightful
authority.347

Going beyond legal structure to examine legal processes within the

dynamics of social theory, some CLS scholars have shown the power of
reification in legal as well as in social thought. Peter Gabel 348, for
example, posits that legal thought is part of a larger practice of turning
concepts or social roles into things, the practice of reifying. Each person
experiences himself as a thing-like function of the system. He is denied
recognition as an active and unique person. The individual is almost
always identified by and ‘passivized within’, his successive social roles.
For example, a secretary experiences himself as a secretary, a small
businessman as a small businessman, a child as a child, a husband as a
husband, a wife as a wife, a consumer as a consumer, a passenger as a
passenger, and so on.349

Gabel considers legal reasoning as a system in which one manipulates

concepts that have exactly this reified and apparently thing-like quality.
These abstractions, says Gabel, are often taken on as beliefs about an
objective reality. When that happens we then believe ourselves actually to

346
Idem., p. 152
347
Idem.
348
‘Reification in Legal Reasoning,’ in Research in Law and Sociology, vol. 3 (1980),
excerpt in Freeman, pp. 1073-1081.
349
Freeman, pp. 1047-1048.

328
be living in a world of rights holders, legal subjects and formal equality.
The reification of legal concepts thus becomes a way of legitimating the
status quo.350

C. Exposing the Illusion that the Status Quo is Necessary351

In the view of CLS scholars, all political and legal theories are guilty of
having generated a common belief that things are the way they are
because they have to be that way. To them this is a mere illusion, a false
consciousness. CLS scholars see themselves as engaged in dispelling that
illusion and demonstrating that things do not have to be the way they are,
but can be different. They contend that social arrangements are
historically contingent, that they are cultural constructions rather than
natural and inevitable conditions. They see this revelation as
‘extraordinarily liberating’. For, it makes people realize that new and fair
social arrangements can be created, that radical social and political
transformation can be brought about.

CLS scholars also contend that the liberal focus on a system of rights
encourages a false sense of security while at the same time elevating
individual autonomy over communal security. Gabel makes the point that
law represses at the same time as it reassures.

Why do those who are systematically disadvantaged subscribe to the

inevitability of the existing social order? How come they accept relations
of subordination, differences in opportunity and social hierarchy? The

350
Idem., p. 1048.
351
Blerk, pp. 155-156.

329
answer to these questions, say CLS scholars, lies in the capacity of law to
legitimate dominant social and power relations in ways that come to be
seen as natural. For example, Kennedy hypothesizes that the reason why
people find the theories of law which legitimate and justify the status quo
so compelling is that, aware that things are very wrong they take some
relief from the explanation that they are unavoidable.

The thing about effective domination is that it successfully convinces

both the dominant and the dominated classes that the given social order is
a given and the best that either can expect. Law, CLS scholars contend,
has the capacity to generate a belief in the inevitability of the status quo
even though it is a social arrangement which favours some groups over
others and some visions over others. Certain legal practices, it is pointed
out, entrench the unequal balance of power in society. CLS scholars
believe that if the legal consciousness that the status quo is inevitable can
be changed, then society itself can be changed. They therefore develop
theories that would transform the teaching and practice of law into
genuine agents of human emancipation and self-realization.

Section 2 Critique of Orthodox Legal Education and Practice

CLS scholars are committed to reform. That commitment arises from

their deep sense of disillusion with the orthodox state of scholarship. The
political project of CLS scholars is to transform legal education and
radicalize law practice.

330
 A. Transformation of Traditional Legal Education 352

In their critique of the legal academy, CLS scholars contend that the
prime object of traditional legal education is the theoretical justification
of existing rules to aspiring lawyers. They also contend that contrary to
what is taught in law schools, the idea of the neutrality and determinacy
of law is a myth. They analyze how there are created in law schools belief
structures with connotations of unreflective ideas about interpretation,
legal doctrine and the role of the courts. They show how social conscious
ness of the fixity of law is constructed in academic writings.

For example, in his study on the approach to precedent in law schools

Kairys states that “stare decisis is so integral to legal thinking and
education that it becomes internalized by people trained in the law, and
its social role and ideological content become blurred and invisible.” 353
Kairys explains that stare decisis is continually sustained because it is
necessary to justify and legitimate the law in liberal society.

Liberal claims of the neutrality of the law of contract, says Thomson in

his study focusing on deconstructing the law of contract, do not only
hinge on the conclusion of special statutory provisions and the
deployment of the ‘ubiquitous trick of precedent’. The liberal
preoccupation with individual autonomy ignores discrepancies in wealth
and education, and this goes undisputed. Thomson contends that if such
concepts as unconscionability, duress and inequality of bargaining power
were to be taught as central factors in the law of contract, instead of as

352
Idem., pp.158-161.
353
Kairys, ‘Legal Reasoning,’ in Kairys (ed.), The Politics of Law (1982), p.13, cited
in Blerk, p.160.

331
aberrations, the law of contract would be exposed for the instrument of
power that it is.

Imbuing the law student with the ‘master-image’ of the law of contract as
a just ordering of society ensures its perpetuation in practice, in the courts
as well as in the academia. For Thomson, it is critical to prevent the
perpetuation of this liberal legal ideology. To that end, he suggests that
the inequality of bargaining and unfair contract terms be exposed as
inherent, rather than portrayed as simply a ‘gloss or awkward addition’ on
a supposedly neutral and impartial body of rules. Contract, he posits, is
not outside politics but part of it. 354

B. Legal Education and Developing Countries: Law and

Development

The problem of legal education in decolonized Third World countries

completely escaped the attention of Critical Legal Studies scholars. That
problem is whether and how law and legal education could serve to foster
and speed up development in Third World countries newly emerged from
decades or centuries of colonial subjugation. Development is of course
generally understood as economic growth and institutional
modernization.

The question of using law to bring about development became the focus
of a movement, known as ‘law in development’, that arose in the US in
the 1960s. The movement was driven by American ‘development
354
Alan Thomson, ‘The Law of Contract,’ in I Grigg-Spall and P Ireland (eds.), The
Critical Lawyers’ Handbook (1992) p. 69, cited in Blerk, 160-161.

332
scholars’ and it espoused the idea of ‘law missionaries’ going to Third
World countries to help produce ‘development lawyers’ and to help foster
development by sharing with them American know-how and modernity.

“The law in development movement seems to have arisen in the USA …

as part of American missionary notions of helping the Third World
nations develop by sharing with them the know-how and modernity of the
USA. This had, in part, earlier given rise to Development Economics.
The Law-in-Development movement was, in short, an attempt to produce
a development lawyer who, like other American development scholars of
the day, was to go to the Third World to help foster development, but in
this case through law.”355

However, the American law in development movement was not prompted

by altruistic motives.

“The movement was coloured by anti-Communism and Cold War posture

of the times and the need, therefore, to have the Third World countries as
areas with stable and predictable commercial transactions within an
implicit liberal capitalist sphere. The movement, it was thought, would
assist to enlarge and/or strengthen the American sphere of influence
through law. … [J]ust as the (development) economists were asserting
America’s right to free trade in former European spheres of influence …
their development lawyers were asserting the superiority of American
legal theory and methodology [arguing that these were more responsive
to the needs of Africa than anything Britain or France can provide]. It was
in this spirit that the American legal-education-for-development
355
D Mabirizi, ‘Some Aspects of Makerere’s Legal Education in Development,’
Third World Legal Studies, 1986, p.64.

333
missionaries came to Africa and the Third World in general. The legal
theory that these missionaries brought with them was pragmatic, rejected
legal formalism and saw law as a means to particular purposeful policy
ends. It rejected any overriding philosophy of law, nay, it bore a
philosophy of law that was analytical and anti-philosophy. … [The]
American legal theory was … sociological. … Thus, multidisciplinary
enquiry was part of the kit the law-for-development missionaries carried
to the Third World. Its content as lawyerly craftsmanship is well
summarized by Llewellyn [who wrote in his Jurisprudence: Realism in
Theory and Practice (1962)]: ‘The essence of our craftsmanship lies in
skills and wisdom; in practical, effective, persuasive, inventive skills for
getting things done; any kind of thing in any field. … We are trouble
shooters’.”356

Law-in-development is all about

“how to use the legal order to ensure (a) higher productivity and more
equitable distribution, (b) effective (i.e. non-symbolic) law, (c) legality
and (d) greater democracy. Only if the legal order meets these objectives
will development take place. One can achieve these objectives only if one
can analyze the causes of the difficulties that give rise to them. … In
terms of the legal order, therefore, we must explain (a) low productivity
and equitable distribution, (b) effective law, (c) illegal behaviour of
officials, and (d) the lack of control by the mass of the population over
government decisions. … Teaching law and development therefore
requires not that we teach students a body of knowledge, but that we
teach them how to make practical investigations into concrete problems,
to the end that they learn to design and draft laws that will solve specific
356
Idem., pp. 65-66.

334
problems in light of the four objectives stated. One cannot train students
to make investigations in the abstract. Making investigations constitutes a
practical skill. No more than one can teach another to ride a bicycle by
textbook exercises can one teach development lawyers to create laws
likely to bring about development by teaching them textbook
knowledge.”357

The use of law as an instrument to bring about desired and determined

goals in society is a subject that has been the primary focus of well-
known sociological jurists (Jhering, Duguit. Ehrlich, Pound). These
jurists stressed the need for a purposeful study of law that strives at a
harmonization of individual and societal interests. For them, any
meaningful study of law necessarily involves an understanding of the
social milieu that the law governs. Legislation could be used as an
instrument of change where change is needed but society has not
considered or demanded it.

It was noted in an earlier chapter that in his functional study of the law
Professor Roscoe Pound analyzed the purpose of law as that of
maintaining social order, satisfying different societal interests, and
effectuating social change. Pound deviated from the path of analytical
positivists who studied the law from a ‘detached’ position. For him, law
was to be studied and taught as a social phenomenon in the context of the
total social process; it was to be conceived as a tool of getting jobs done
in a particular culture.

357
RB Seidman, ‘On Teaching Law and Development’, Third World Legal Studies,
1986, pp.54-55.

335
“The ability and recognition of the influence of formal law in reforming
and influencing the practices of old and primitive societies to become
modern futuristic ones is necessary in any analysis of a functional nature.
The manner in which such a reformation is accomplished is crucial to the
popularity of the resulting laws, particularly in vastly pluralistic societies
in Africa.”358

It is trite observation that in Africa and other decolonized countries the

constitutional document at independence invariably save, subject to
eventual amendment, the laws ‘received’ from the departing colonial
powers. These laws have remained virtually intact and have suffered
amendments, whenever that has happened, only on their fringes. More
often than not, lawyers in developing countries when tasked with drafting
a new law for a particular purpose, invariably copy the law on that subject
in the metropolitan country in the misplaced belief that laws in the
developed countries necessarily ensure development in developing
countries. There is also a slavish imitation of the legal drafting style even
though it is patently heavy, circumlocutory and tediously prolix.

Also, in developing countries the system of legal education and research,

the curricular pattern, and pedagogy has largely remained almost a carbon
copy of Western models even though these models were developed in
entirely different socio-economic and cultural contexts and do not
necessarily reflect the needs of Third World societies. Thus, legal
education, based on doctrinaire teaching, continues to focus on producing
‘court-centric’, rule-oriented elites largely on the pattern of lawyers in the
West, rather than active participants in and carriers of change for
358
M Mwalimu, ‘The Need for a Functionalist Jurisprudence for Developing
Countries in Africa’, Third World Legal Studies, 1986, p.45.

336
development. It continues to be geared to an adversary setting catering for
litigation for the fortunate few, at the cost of social justice for the
deprived many. Pro bono work or public interest litigation is almost
absent.

Law teaching continues to be based on the received culture of education.

It seeks to replicate foreign models even though these models do not view
legal education from the perspectives of developmental policies and
needs. Law schools are thus not responsive to the indigenous milieu.
They are not functional in character. They are not geared to be
innovative. Part of the reason for this state of affairs is that in many cases
governments appear to have no policy on law and development. Another
reason is that legal education tends to receive low priority in national
resource allocation. Even the learning resource used in law schools
largely consists of foreign textbooks. There is a conspicuous absence of
indigenous legal literature dealing with law in a developmental context,
and localized teaching material is generally lacking.

The teaching method in law schools suffers from what has been described
as ‘narration sickness’ and ‘banking concept’. The notion of ‘narration’
conveys the idea of the teacher as an active participant in disseminating
knowledge and the student as a mere passive recipient of the same. The
‘banking’ concept sees education as an act of depositing knowledge in
which students are the depositories and the teacher is the depositor. In
both the ‘narration’ and ‘banking’ methods of pedagogy students are not
engaged as active participants in the learning process. The teacher does
not communicate; he issues communiqués and ‘makes deposits’ which
the student patiently receive, memorize and repeat. Both brands of
pedagogy are doctrinal and didactic, formalistic, and lacking in

337
developmental perspectives. Students are not challenged to think. They
are not directed to the real developmental problems with which their
countries are confronted.

In opposition to the doctrinal lecturing which African and other

developing countries have inherited from the departed imperial powers, is
the teaching technique variously denoted as the ‘case method’, the
‘hypothetical situation or transaction technique’, the ‘problem-solving
method’, and the ‘Socratic method’. This is the typical method of
teaching law in American law schools. The method has been subjected to
considered and severe criticism even in its land of origin. But it has
nevertheless found its advocates in some developing countries.

That teaching technique doubtlessly stimulates the thinking and arouses

the spirit of inquiry. But it operates on rather a narrow canvas in the
process of case-to-case learning. It has no proven and conclusive
superiority to doctrinal lecturing. It is ill suited to a country whose legal
system does not follow precedent or whose legal system follows
precedent but which lacks the capacity to report and publish, and thus
does not publish, judicial decisions. At the end of the day, the case-
method or Socratic technique is just how legal education is offered in
American law schools.

Teachers of law in developing countries would have to be creative

enough to find some homespun ways of pedagogic change. Some have
found it satisfactory and rewarding to creatively combine doctrinal
lecturing, text materials, case studies, discussions, and ‘leaning by doing’
(simulations or moot court).

338
The necessity of adapting law and legal education to the local
environment is dictated by the fact that law and society are inextricably
connected. That connection is in a constant flux, evolving intricately and
almost perpetually as a society advances to an idealized form of
government. Sociological jurisprudents make the point that law can and
ought to be deployed consciously and deliberately as an instrument of
development, or, to use the Poundian metaphor, as an instrument of
‘social engineering’, that is, as an instrument affecting the behaviour of
individuals and groups towards planned social, economic, cultural and
legal goals.

Governments ultimately resort to the law in the creation of institutions

needed for development. But law in itself and by itself cannot and does
not bring about development. Legislation on accommodation, road
infrastructure, health, food security, education, and so on does not mean
that housing, roads, hospitals, food, schools, etc have thereby become
available. What happens is that resort is had to the law to provide the
legal framework for, or to lead or to follow, chosen developmental
options.

The law can be used to radically alter economic, social and legal
institutions. Laws that are authoritatively posited can readily be deployed
to bring about desired social, economic, cultural and behaviour changes.
In other words, in attempting to deal with developmental problems the
threats and promises of the law can be used to channel behaviour in new
and different ways. Law, it has been said, is a silent partner in the
development process. Economic policies find expression in statutes,
regulation, international agreements and contracts. And so the legal
adviser, along with other development specialists, becomes a problem-

339
solver.359 Ideally, the lawyer is a social engineer, an expert in social
problem-solving who uses the law to achieve social ends.

Informed and concerned scholars in developed and developing countries

have for decades been saying that it is absolutely necessary to plan and
relate legal education to developmental needs. They have been calling for
a drastic rethinking of the objectives and methods of legal education,
more so because law is a sociological phenomenon invariably
conditioned by each society’s context and the felt and desired needs in the
changing plural societies of developing countries. One task of legal
education is to strengthen the law and legal education, a precondition for
planned economic development and social change. Since law must be
used as an instrument of change and development, the legal system and
institutions of legal education and research must play an effective role in
the process of planned and directed all-round development.

Legal education educators in developing countries continue to be

confronted with major challenges. They must contribute to the
decolonization of the law and of legal education. They must also
contribute to the promotion of a law and of a legal pedagogy that is
relevant and responsive to the local milieu in that it addresses the issues
of poverty, disease, hunger, violence, vulnerability, political instability
and non-development.

C. Radicalization of Legal Practice360

359
LM Hager, ‘Training Lawyers for Development: The International Development
Law Institute Experience’, Third World Legal Studies, 1986, p.57.
360
Freeman, pp. 1048-1051.

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CLS scholars believe that the lessons of critique can radicalize law
practice. Gabel and Harris 361 argue that “the very public and political
character of the legal arena gives lawyers, acting together with clients and
fellow legal workers, an important opportunity to reshape the way that
people understand the existing social order and their place within it.”
They seek to expose the way that the legal system works at many
different levels to shape popular consciousness towards accepting the
legitimacy of the status quo. They seek to outline the ways that lawyers
can effectively resist these efforts in building a movement for
fundamental social change. They use several examples, most graphically
the trial in the case of People v. Garcia (1975) 426 U.S. 911; an
American case about a rape victim who shot and killed her assailant. 362

Freeman points out that at that trial, a radical-feminist lawyer who

represented the rape victim was able to translate ‘the male-oriented rule
of self-defence’ into a form that captured the real experience of a woman
facing possible attack by a man. She spoke to the jury not as a ‘State-
licensed technician’ representing an abstract defendant, but as a woman
standing together with another woman. Together, the two women were
able to put the act of rape itself on trial and to address the jurors about the
true meaning of being a woman. The effect of this was to transform the
courtroom into a popular tribunal. 363

However, CLS are all agreed that social change is not a matter of clever
legal argument deployed by elite lawyers. Rather, they say, it is a process

361
(1982-83) Review of Law and Social Change, vol. 11, 369, cited in Freeman,
1048.
362
Freeman, pp. 1048-1049.
363
Idem., pp. 1049-1050.

341
of democratic organization and mobilization in which law plays a
necessary part. “But CLS subscribes neither to the liberal view that law
can be a principal instrument of social change nor to the Marxist view
that marginalizes law and lawyers to a ‘super-structural fringe’, rendering
it largely irrelevant to political change.” 364

Section 3 Techniques of Deconstruction 365

CLS scholars deploy various techniques of deconstruction to expose

liberal beliefs about determinacy and coherence in law, and to discover
the false ideology disguised by such doctrine. Two of such techniques are
‘trashing’ and ‘delegitimation’.

A. Trashing

The word ‘trashing’ is an American colloquial term which means

exposing the worthless nature of something. Thus in CLS scholarship
trashing consists in “exposing and undermining the illegitimate
hierarchies which pervade society.”366

Trashing is thus a scholarly method of exposing and subverting the

illegitimate hierarchies (i.e., ‘classes’ or ‘dominations’) in liberal legal
tradition. It consists in exposing the contradictory sham of traditional

364
Idem., p. 1050.
365
Blerk, pp. 157-158.
366
Duncan Kennedy, ‘Legal Education as Training for Hierarchy,’ in Kairys (ed.),
The Politics of the Law (1982), p. 38, cited by Blerk, 157.

342
notions of justice, debunking (i.e., exposing the falseness of) orthodox
methods of teaching law, and undermining illegitimate power in law
schools. The objective is to see all the alternatives available in the search
for a substantive notion of justice.

To CLS scholars, the point of trashing is to tell the truth about legal
legalism. They see trashing as a perfectly constructive form of
scholarship.

B. Delegitimation

Delegitimation “attempts to reveal the legitimating aspects of law and to

expose its ideological underpinnings.”367 CLS scholars seek to expose the
ideological underpinnings of law by exposing key ideas to debunk legal
consciousness, particularly the concept of reification.

367
Blerk, p.158.

343
344
 Chapter Thirteen

Law and Women: Feminist Jurisprudence

The conventional perception of law, as taught and learnt in the traditional
law curriculum of law schools, is that it is an institution that is above
reproach in that it is un-bias, neutral, objective, coherent and rational.
Feminist jurisprudence denies that law has these attributes. It argues that
basically law is made by men and in their image, reflecting masculine
values and standards, and serving male interests. This maleness of the
law, it is contended, is a manifestation of patriarchal power, a power that

345
engenders the inequality between women and men and the oppression of
women by men. Feminist jurisprudence therefore sets out to de-centre the
law, to expose its limitations and the ‘myths’ about its rationality,
neutrality and coherence. It advocates for the demolition of patriarchy in
both the private and public domains as the solution to gender inequality.
Feminists deny that the real objective of this advocacy is the substitution
of matriarchy for patriarchy and the feminization of jurisprudence.

In terms of its origin, feminist jurisprudence is generally considered an

off-shoot of: (i) the Critical Legal Studies Movement, (ii) the feminist
movement of the 1960s and 1970s, and (iii) the attacks by many female
lawyers on the traditional law curriculum in the Universities.

In the 1970s there emerged in the USA an iconoclastic movement of

juristic thought known as Critical Legal Studies (CLS). In 1983 a CLS
conference devoted a section of the conference to feminism specifically.
This led to the emergence of a caucus of ‘Fem-Crits’.368

Many feminist legal theorists subscribe to the following areas of inquiry

that are also the focus of CLS: the basic critique of the inherent logic of
the law; the indeterminacy and manipulability of doctrine; the role of the
law in legitimating particular social relations; and the illegitimate
hierarchies created by law and legal institutions.

But CLS itself has been subject to severe criticism especially from
African legal scholars who attack it for being ‘Western-centric’ and for
ignoring the inequalities of law in a colonial and neo-colonial context.

368
Freeman, Lloyd’s Introduction to Jurisprudence, p. 1122.

346
“From an African perspective, CLS was not only confined to the ‘text’, it
also offered extremely little to nonwestern critiques of law, which
incidentally had long focused on the inequalities of law, particularly in a
colonial and neocolonial context. … Even the best CLS scholars begin
and end their analysis with the western context – an analysis divorced
from the essential role and function of the dimension of imperialism in
the evolution of that law. This has allowed the doctrine to be malleable to
all except those operating outside that specific socio-cultural context –
people in a third world context. … CLS is particularly grist for the mill in
the post-everything, completely deconstructed and totally alienated non-
reality in which western society is currently mired. For African scholars
of law, much of the CLS critique resonated strongly within our own
context. However, in order to have produced any meaningful effect
outside of academia, CLS philosophies and policies had to be applicable
to real life. Post-feminist analyses portend the same danger. What is clear
is that while feminist jurisprudence must develop beyond an emphasis on
rights, the approach must be one that is grounded in the concrete realities
of political contestation, rather than in the rarefied annals of
intellectual.”369

Regarding the development of feminist jurisprudence from the women’s

movement in the 1960s and 1970s, it may be observed that that
movement itself drew inspiration from the general feminist writing of
prominent feminists of the time. 370 This general feminist writing was
followed by other writing that extended the engagement of female

369
Oloka-Onyango and Sylvia Tamale, ‘The Personal is Political, or Why Women’s
Rights are Indeed Human Rights: An African Perspective on International Feminism,’
Human Rights Quarterly, Vol.17, 1995, 691, at pp. 722, 723.
370
Such as Simone de Beauvoir’s The Second Sex (1949), Betty Freidan’s The
Feminine Mystique (1963), Germaine Greer’s The Female Eunuch (1971), Kate
Millett’s Sexual Politics (1970), and Eva Figes’ Patriarchal Attitudes (1970).

347
reflection and speech to areas of discourse such as feminist sociology,
feminist philosophy, and feminist history.

As earlier noted, what also contributed to the development of feminist

jurisprudence was the fact that an increasing number of women started
studying law and began to question a law curriculum that neglected issues
of central concern to women such as rape, domestic violence,
reproduction, unequal pay, sexual discrimination, sexual harassment and
so on. Not surprising, most of the leading feminist scholars are women
who had read, or who later read, law.

Earlier work on feminist jurisprudence concentrated on issues such as the

family and the market; sexism and classism; feminism and Marxism; the
dichotomy between the ‘public’ and the ‘private’ spheres; and the
relationship of the law to oppression, in particular, to patriarchy.
Patriarchy is male control and domination; it is ‘the power of the father’;
it is system (in the family and the wider society) in which men through
law, force, pressure, ritual, education, customs, language and so on
determine the woman’s role in society and subsume the female under the
male.

Today, all feminist legal theorists, irrespective of their inclinations and

differences, are united in a belief that society (including legal order) is
patriarchal. A familiar attack is the feminist critique of the state as male.
Feminist jurisprudence therefore seeks to analyze the contribution of law
in constructing, maintaining, reinforcing and perpetuating patriarchy. It
looks at ways in which this patriarchy can be undermined and ultimately
eliminated. Although there is much of ‘grand theorizing’ (what some

348
feminists call ‘scientific feminism’), there remains a belief in the fact that
the concrete is desirable.371

Section 1 Areas of Inquiry by feminist jurisprudence

Feminism describes women’s subordination. It inquires into how and why

women continue to occupy a subordinate position. It seeks to change
women’s subordinate position. Feminist legal thought uses feminism to
focus this inquiry on the legal system – the politics of law, particularly
the law’s role in perpetuating patriarchal hegemony. Thus Carol Smart 372
argues that certain essential characteristics of law make it a tool limited in
its potential for radical change. There is of course need for a continuing
practical engagement with law reform. But a critical examination of law
reveals its central role in reproducing aspects of women’s oppression, in
part because patriarchy remains constant throughout any such changes.

“Smart argues that law should not be ‘identified as a simple tool of

patriarchy or capitalism. To analyze law in this way creates the possibility
of seeing law both as a means of ‘liberation’ and, at the same time, as a
means of the reproduction of an oppressive social order. Law both
facilitates change and is an obstacle to change’. … [I]t might be trite to
add that law can have the effect of freezing any gains of a movement in a
particular point in time. In this way, law will present an obstacle to
further change. Thus, as Drucilla Cornell has argued in her post-
modernist critique of feminist jurisprudence, the inordinate emphases of

371
Freeman, p. 1124.
372
‘Feminism and Law: Some Problems of Analysis and Strategy’, 14 Int’l J. Soc. L.
110 (1986).

349
earlier modes of feminism on legal struggles have simply reproduced the
worst of patriarchy’s notions of identity, gender, authority, and power.” 373

The strategy of feminist jurisprudence is to raise consciousness regarding

women’s social experience; the goal is to bring about more radical
changes than the ameliorative emendations that have been offered in the
past.

The major themes that have exercised the minds of feminist scholars are:
gender equality and differences, demolition of patriarchy, gender and
women’s choices, power relations within the ‘public’ and the ‘private’
spheres, cultural pluralism and women’s rights, and feminist legal
methods. Women’s human rights of particular concern include equity in
the home, access to property, access to political power, reproductive
rights and the pervasive phenomenon of gender violence 374. Women
denounce the continual marginalization of women and the ‘ghettoization’
of gender issues by the dominant structures of race, capitalism, and
patriarchy. They wonder aloud how women can increase their
involvement in political activity without falling prey to state-cum-male
machinations of co-optation.

A. Gender Equality and Differences

Initially, feminists pushed for equality with men. But the question began
to be asked whether women in fact wanted to be like men and to be

373
Oloka-Onyango & Sylvia Tamale, pp. 721-722.
374
Asma Mohamed Abdel Halim, ‘Tools of Suppression’ in Gender Violence and
Women’s Human Rights in Africa, (1994) Centre of Women’s Global Leadership
(ed.).

350
treated like men, and what precisely ‘equality’ meant. A liberal feminist
scholar such as Wendy Williams 375 takes the view that equality amounts
to equal opportunity. But radical feminists such as Christine Littleton 376
and Katherine MacKinnon377 focus on differences between men and
women and support affirmative measures to challenge inequalities and
achieve functional equality. Cultural feminists also emphasize difference,
but view it more positively. Postmodern feminism denies that there is a
single theory of equality. For postmodern feminists, equality is a social
construct, a product of patriarchy and in need of feminist reconstruction.

One of the major headaches for feminist legal scholarship is how

feminists should define and respond to sexual difference. Wendy
Williams argues that feminists either have to accept equality on the basis
of similarities between the sexes, or accept special treatment on the basis
of sexual differences.

Christine Littleton’s critique of equality is based on its ‘phallocentrism’.

Feminist critique, she says, has illuminated the ‘male-dominated’ or
‘phallocentric’ nature of every social institution it has examined,
including law. She argues that to accept women’s difference, society must
do more than merely accommodate the difference. This requires the
‘centralization of women’ (her identity, her specificity, her difference
from men) in normative debates about how the world ought to be
structured. For Littleton, equality as accepting women’s difference means
focusing not on sources of differences, but focusing on the consequences

375
(1984-1985) 13 N.Y.U. Rev. L. and Soc. Change 325; and see also W. Williams
and N. Taub (1985) 37 Rutgers L. Rev. 825.
376
‘Reconstructing Sex and Equality,’ (1987) 75 California L.R. 1274.
377
Feminism Unmodified: Discourses on Life and Law (1987).

351
of the differences, that is to say, focusing on the differences that
difference makes.

Catherine MacKinnon378 argues that feminists should concentrate on

identifying dominance. She treats gender equality issues as questions
about the distribution of power, about male supremacy and female
subordination. For MacKinnon, dominance is what is critical, not
difference.

“[S]eeing sex equality questions as matters of reasonable or unreasonable

classification is part of the way male dominance is expressed in law. If
you follow my shift in perspective from gender as difference to gender as
dominance, gender changes from a distinction that is presumptively valid
to a detriment that is presumptively suspect. The difference approach tries
to map reality; the dominance approach tries to challenge and change it.
In the dominance approach, sex discrimination stops being a question of
morality and starts being a question of politics.” 379

Using the broad conceptual framework of dominance MacKinnon is able

to widen the field of her inquiry from work conditions to include
violence, prostitution and pornography. MacKinnon calls for equal power
for women. That call raises a number of questions. Are women always
victims? Are all women always subordinate to men? Are all women
always dominated by men in the same way?

B. Demolition of Patriarchy

378
Feminism Unmodified (1987), Towards a Feminist Theory of State (1989).
379
Quoted in Freeman, p. 1183.

352
Feminism considers that objective reality is a myth, and that patriarchal
myths are projections of the male psyche. The underlying problem of
gender equality, says Ann Scales380, is the objectification of women, the
‘tyranny of objectivity’, that is to say, women are regarded as creatures
that cannot be harmed. Yet, as Robin West argues 381, heterosexual
penetration and fetal invasion are both harmful to women.

“The radical feminist argument for reproductive freedom appears in legal

arguments only inadvertently or surreptitiously. … It appeared most in
the phenomenological descriptions of unwanted pregnancies …
descriptions … filled with metaphors of invasion. Those descriptions
contrast sharply with the ‘joy’ that cultural feminists celebrate in
pregnancy, childbirth and child-raising. The invasion of the self by the
other emerges as a source of oppression, not a source of moral value. This
danger, and the fear of it, is gender-specific. It is a fear which grips
women, distinctively, and it is a fear about which men, apparently, know
particularly nothing. Radical feminism of the eighties has focused more
on intercourse than on pregnancy. From the point of view of the
‘connection thesis’, what the radical feminists of the eighties find
objectionable, invasive, and oppressive about heterosexual intercourse, is
precisely what the radical feminists of the sixties found objectionable,
invasive, and oppressive about pregnancy and motherhood. According to
the eighties radical critique, intercourse, like pregnancy, blurs the
physical boundary between self and other, and the blurring of the
boundaries between self and other constitutes a profound invasion of the

380
‘The Emergence of Feminist Jurisprudence: An Essay,’ (1986) 95 Yale Law
Journal 1375, excerpt in Freeman, pp. 1137-1149.
381
‘Jurisprudence and Gender,’ (1988).

353
self’s physical integrity. That invasion – the ‘dissolving of boundaries’ –
is something to condemn not celebrate. Like pregnancy, then, intercourse
is invasive, intrusive and violative, and like pregnancy it is therefore the
cause of women’s oppressed, invaded, intruded, violated, and debased
lives. … In their extremes, of course, both unwanted heterosexual
intercourse and unwanted pregnancy can be life threatening experiences
of physical invasion. An unwanted fetus, no less than an unwanted penis,
invades my body, violates my physical boundaries, occupies my body and
can potentially destroy my sense of self … The material, sporadic
violation of a woman’s body occasioned by pregnancy and intercourse
implies an existential and pervasive violation of her privacy, integrity and
life projects … An unwanted pregnancy is disastrous, but even a wanted
pregnancy and motherhood are intrusive. The child intrudes, just as the
fetus invades. Similarly, while unwanted heterosexual intercourse is
disastrous, even wanted heterosexual intercourse is intrusive. The penis
occupies the body and divides the woman internally in consensual
intercourse no less than in rape.”382

Ann Scales points out that equal protection approach, as adopted for
example by the US Supreme Court, makes maleness the norm of what is
human, the goal being neutrality doctrinally. She argues that it is
necessary to reconstruct the legal system. She is critical of Carol
Gilligan’s paradigm383 that women’s moral development reflects a ‘care-
based’ ethics (resting on the premise of non-violence), while that of men
reflects a ‘rights-based ethics (rooted in the value that everyone should be
treated the same). She is also critical of Gilligan’s contention that
maturity calls for an integration of both moral developments.

382
Quoted from excerpt in Freeman, pp. 1164-1165.
383
In a Different Voice (1982).

354
To Ann Scales, Gilligan’s care-based and rights-based models are not
compatible. In her view, it is a thesis that is ‘incorporationist’.
“Incorporationism,” she argues, “represses contradictions … usurps
women’s language in order to further define the world in the male image
[and] thus deprives women of the power of naming.” Ann Scales expects
a feminist jurisprudence to focus on domination, disadvantage and
disempowerment rather than on a study of the differences between men
and women.

Robin West, another feminist scholar, argues for a feminist jurisprudence

that demolishes patriarchy and that reconstructs legal concepts to take
account of the realities of women’s experiences. 384 In her view,
‘reconstructive’ feminist jurisprudence should set itself the task of
rearticulating women’s new rights (e.g., ‘right to individuation’) in such a
way as to reveal, rather than conceal their origin in women’s distinctive
existential and material state of being. Feminist jurisprudence should try
to explain or reconstruct the reforms necessary to the safety and
improvement of women’s lives in direct language that is true to the
experience of women and their own subjective lives. The goal of
reconstructive jurisprudence should be to provide descriptions of the
human being underlying feminist legal reforms that will be true to the
conditions of women’s lives.

C. Gender Ideology

384
‘Jurisprudence and Gender,’ (1988) 55 Univ. of Chicago Law Review 1; excerpt in
Freeman, pp. 1157-1175.

355
One challenge feminist scholars have had to face is the argument that
women suffer from ‘false consciousness’, or that their choices are
unconsciously determined by gender ideology. Catherine MacKinnon
discusses the problem in the context of her claims regarding sexuality.
She writes:

“According to the approach to sex equality that has dominated politics,

law, and social perception, equality is an equivalence, not a distinction,
and sex is a distinction. The legal mandate of equal treatment – which is
both a systemic norm and a specific legal doctrine – becomes a matter of
treating likes alike and unlikes unlike; and the sexes are defined as such
by the mutual unlikeness. Put in another way, gender is socially
constructed as difference epistemologically; sex discrimination law
bounds gender equality by difference doctrinally. A built-in tension exists
between this concept of equality, which presupposes sameness, and this
concept of sex, which presupposes difference. Sex equality thus becomes
a contradiction in terms, something of an oxymoron, which may suggest
why we are having such a difficult time getting it.”385

Her central argument is that coercion is paradigmatic of heterosexual

relations and constitutive of the social meaning of gender under gender
inequality. Other feminists point out that criticisms can indeed be levelled
at the argument that women’s choices are determined by gender ideology,
but nevertheless explain that ideological determination arguments have
strategic advantages.

Abrams, for example, criticizes MacKinnon for declining to acknowledge

the possibility that women’s choices regarding sexuality might be free
385
Quoted from excerpt in Freeman, p. 1175.

356
from ideological determination. 386 She believes that some women might
appreciate the arguments put forward by MacKinnon but cannot accept its
implications. Furthermore, she points out, the arguments create barriers to
remedial analysis which requires of decision- makers, that they identify
the range of factors that influence women’s choices.

“Feminist scholars and activists need alternative modes of discourse

through which to analyze controversial choices made by women: forms of
discourse that acknowledge the possibility that women may be influenced
by the internalization of the very ideology that has subordinated them, yet
avoid the claims of determination that alienate women, facilitate the
misrepresentation of their decision making capacities and impede inquiry
into contributing causal factors which may be more readily subject to
remediation.”387

D. The power relations within the ‘public’ and the ‘private’

realms

It has long been assumed that there are two spheres of human activity,
one public, where the state may fully intervene, the other private, where
the state may intervene only minimally. But the public/private dichotomy
as two discrete entities or as natural realms ‘out there’ is probably unreal.

“The constructs of public and private should rather be seen as normative.

Every concept of the ‘public’ presupposes a corresponding delimitation
of the ‘private’. The language of privacy or intimacy acts as an ‘idealising

386
Freeman, pp. 1129-1130.
387
Idem., quoted in p. 1130.

357
lens’ to disguise and legitimate unequal spheres of men and women.
Since power is deemed to be situated in the public arena, power relations
in the domestic sphere can be ignored. It is as if they do not exist.” 388

Indeed, one feminist scholar, Nicola Lacey, has argued that “The
ideology of the public/private dichotomy allows government to clean its
hands of any responsibility for the state of the ‘private’ world and
depoliticises the disadvantages which inevitably spill over the alleged
divide by affecting the position of the ‘privately’ disadvantaged in the
‘public’ world.”389 One practical consequence is the consolidation of the
status quo, that is to say, the de facto support of pre-existing power
relations and distribution of goods within the ‘private’ sphere.

Feminist scholars contend that this consolidation of the status quo has
entailed certain untoward consequences. Power differentials so central to
family life are overlooked. Domestic relations are left in the pre-liberal
world. The political nature of the family, as the place where we learn, at
least in part, our gendered selves, is ignored. Women are depoliticized
and their lives marginalized. ‘Public’ wrongs are emphasized and
women’s injuries are often not recognized or compensate as injuries by
the ‘public’ legal culture.

“Women worldwide have been confronted by the argument that the

specifics of local oppression within the domain of the family, extending
from wife battering to rape, are not and should not be the concern of the
state. The systematic and calculated rape of refugee women and women

388
Idem., p. 1131.
389
Unspeakable Subjects (1998), p.77, quoted in Freeman at p.1130. See also,
excerpt in Freeman, pp.1225-1238.

358
victims of war clearly illustrate that this is no longer a tenable approach
from an internationalist perspective. Recent court decisions affirming
spousal rape as rape make a similar point from within the national
domain. Within the African context, and with specific relation to female
genital mutilation, child bethrothal, and women’s subservience (and
subordination), very often the culturalist dimension is imported into the
debate in order to declare it off limits to external scrutiny and internal
challenge. … [T]he ‘public/private’ distinction enhances the violation of
women’s human rights. …[W]omen’s human rights are not simply a
private (personal) affair, but extend directly into the essential operations
of the state, society, and the public (political) sphere, as does any other
category of human rights.”390

Intervention or non-intervention by the state in family relations is a

political act: it amounts to intervention to recognize and confirm the
status quo, and it legitimizes existing power relationships. Freedom or
autonomy of the ‘private’ sphere is often the freedom of more powerful
members (usually husbands in relation to wives, and parents in relation to
children) to exercise this power without restriction.

The ‘private’ sphere is, of course, permeated by government. “To the

extent that government is infused with patriarchal, heterosexual ideals,
men and women’s privacy rights are likely to reflect patriarchal,
heterosexual ideals of a private sphere.” 391

390
Oloka-Onyongo & Sylvia Tamale, pp. 710, 711.
391
Anita Allen, ‘Privacy’ in Jagger and Young (eds.), A companion to Feminist
Philosophy (1998), p.461, quoted in Freeman, p. 1132.

359
In the patriarchal society the ‘private’ domain is very minimally
regulated, allowing for the further domination of women. Here, men reign
with little interference from the laws. The ‘public’ domain is also
dominated by men. This is so because in a patriarchal society it is the
men who make all laws and therefore they enact laws that put them in a
dominant position over women. Accordingly, all laws and legal language
are structured to perpetrate this domination.

Take a law (male-gendered) that requires corroborative evidence or

evidence of ‘utmost resistance’ by the female to sustain a charge of rape;
yet, rape outside or inside marriage is never committed in the public view
and brute force may not necessarily be resorted to. The law of rape is thus
made in the image of the male and seeks to protect the male. Also, the
areas in which female rights are notoriously violated in many Third
World countries (e.g. polygamous marriage, ownership of property) are
those of customary and private law. Yet, the constitutions of some of
these countries allow discrimination based on customary or private law.
Here again, the law (the constitution in this case) is male-gendered and
designed to protect the male.

Consider also the following. Labour law regulates the treatment of

workers and their remuneration, in the public domain. But no account is
taken of the labour that women do from dawn to dusk in the home. The
law does not regulate that labour. There are no working hours and no
wages, and no tasks are too hazardous to her health even when she is
pregnant. Thus the law not only treats women badly, but the assumption
underlying many laws are those of female dependency (e.g., the idea of
the male as ‘bread winner’, as ‘head of the family’, as ‘protector of the
woman’) and of the unsuitability and unavailability of the female (‘the

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gentle sex’) for certain kinds of jobs (so-called ‘manly jobs’ such as being
a miner or a soldier) and sports (the so-called ‘manly sports’ such as
boxing, rugby, kick boxing).

Given this reality, feminist argue that men are afraid to legislate in the
private domain because they are in control of and dominate even that
sphere and so to bring law in that arena would reduce their control and
power. Men, feminists contend, legislate in respect of matters in the
private domain only when they are personally affected, as when there is a
perceived challenge to their hegemony. Feminists therefore argue for the
dismantling of the dichotomy between the private domain (where most
women are confined) and the public domain. The well known feminist
battle cry is the slogan ‘the personal is political’.

The pedigree and content of that slogan originated from Western

feminism. It is a slogan criticized by some feminists. Angela Davis, the
African-American political activist, for example, wrote in her
Autobiography (1988):

“I was vehemently opposed to the notion, developed within the young

women’s liberation movement, which naively and uncritically equated
things personal with things political. In my mind, this idea tended to
render equivalent such vastly disparate phenomena as racist police
murders of Black people and the sexist-inspired verbal abuse of white
women by their husbands. … While I continue to disagree with all easy
attempts to define these two dimensions as equivalent, I do understand
there is a sense in which all efforts to draw definitive lines of demarcation
between the personal and the political inevitably misconstrue social

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reality. For example, domestic violence is no less an expression of the
prevailing politics of gender because it occurs within the private sphere of
a personal relationship.”392

African feminist scholars argue that the slogan ‘the personal is political’
must go in tandem with the slogan ‘the local is global’ so as to include
and internationalize the picture of the Third World situation. The latter
slogan, Oloka-Onyango and Tamale rightly point out, conveys the
message that local circumstances and conditions of patriarchy and
exploitation in the Third World are intricately connected to international
conditions.

“Those factors extend beyond the androcentric construct of the

international legal regime on which the theoretical discourse [of some
feminists] largely hinges. When a husband batters his wife, two dynamics
are at play. The first dynamic corresponds to the political character of the
seemingly personal act sanctioned by the forces of patriarchy and
domination. Furthermore, there is a manifest distinction between the
personal in Western and non-western societies. In the African context,
this distinction emanates from the largely communitarian and extended-
family complex of relations. This is a phenomenon very distinct from the
spatially atomized individual existence that is more typical of Western
societies. In short, the province of the personal in Africa is legion. The
second dynamic in the African context must invariably be linked to the
global public sphere which impacts on local space in a variety of different
and complex ways, including that of private actors, such as transnational
corporations, banks, and arms dealers. At the political level, western
women do not often confront the state (or any of these other actors)
392
Quoted in Oloka-Onyango & Tamale, p.p. 692-693.

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through the medium of a global network of imperialist relations that
impact upon the African state. In sum, what in Africa appears to be a
local political act is compounded by the frustrations and tensions set in
motion by global forces.”393

Oloka-Onyango and Tamale contend that there is need to ensure that

international feminist theory is truly decolonized and thematically
internationalized. Otherwise, they point out, ‘we’ will remain with the
same problem, namely, nominal participation and continuing
marginalization or just lip service to multiculturalism and universal
human rights. In their view, third world discourse must be integrated
directly into the critique of dominant structures of knowledge and power
in the academia, rather than added in as an afterthought. Further, an
African perspective must be integrated within international feminism.

Coming from a context that has known both colonial domination and
neocolonial exploitation, African feminists are understandably wary of
the dominance of Western feminism on the international stage. That
cautiousness is particularly germane because of the historical practice of
western societies in ‘capturing, defining and transforming or orientalizing
realities’ in the Third World.

“For feminism to achieve any meaningful success, a universal basis must

be the foundation. … In tandem with such an approach, feminists in third
world contexts must be wary of cooptation and exploitation – a trait of
western societies that appears to not respect boundaries of sex –
particularly because the dominant mode of international feminism reflects
the dominant character and color of international relations,
393
Idem., p. 702.

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Bourgeois/white, often predatory, and paternalistic. As Maivân Lâm has
recently pointed out in an article aptly entitled, Feeling Foreign in
Feminism [1994], the agenda of Western feminism appears not only to be
off target, but also ‘filmic’. According to Lâm, Western feminism is ‘too
cleanly and detachedly representational, with little connection to the
ongoing lives of women who have experienced racial or colonial
discrimination. …’ Vasuki Nesiah is even more critical of the
transposition of Western feminism onto the international scene because it
ignores ‘global contradictions’ by emphasizing the commonality of
women’s experience. Instead, she urges theorists to look at gender
identities as being ‘continually reconstituted through social processes’.
The bond that is necessary for a coalition to evolve within international
feminism cannot be created from a romanticized sisterhood that assumes
common oppression of all women. Rather, such bonding can only occur
after women’s diverse priorities and interests have been recognized and
the various barriers to this goal have been identified by the international
community of women.” 394

E. Multiculturalism and Feminism

Feminists regard minority cultures in the West and traditional culture in

Developing Countries as either severely constraining women’s choices or
undermining women’s well-being.

“Relativists are not only politicians but also intellectuals such as those in
western countries leading the assault against multiculturalism, affirmative
action, and the welfare state in general. Their counterparts in the south are
394
Idem., p. 698.

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busy fanning the flames of ethnicity, preaching the anthem of structural
adjustment, and uncritically aping the call for ‘free markets’. The real
objective of the culturalist argument is the maintenance of structures of
dominance and control and … has little or nothing to do with the
‘cultural’ wrappings of the argument. The one element that all the
arguments have in common is the suppression of the human rights of
women.”395

Susan Okin points out two particularly important connections between

culture and gender. 396

“First, the sphere of personal, sexual, and reproductive life functions as a

central focus of most cultures, a dominant theme in cultural practices and
rules. Religious or cultural groups often are concerned with ‘personal
law’ – the laws of marriage, divorce, child custody, division and control
of family property, and inheritance. As a rule, then, the defense of
‘cultural practices’ is likely to have much greater impact on the lives of
women and girls than on those of men and boys, since far more of
women’s time and energy goes into preserving and maintaining the
personal, familial, and reproductive side of life. Obviously, culture is not
only about domestic arrangements, but they do provide a major focus of
most contemporary cultures. Home is, after all, where much of culture is
practiced, preserved, and transmitted to the young. On the other hand, the
distribution of responsibilities and power at home has a major impact on
who can participate in and influence the more public parts of the cultural
life, where rules and regulations about both public and private life are

395
Idem., pp. 708-709.
396
‘Is Multiculturalism Bad for Women?’ in Cohen, Howard and Nussbaum (eds.), Is
Multiculturalism Bad for Women? (1999), extract in Freeman, pp. 1245-1252]

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made. The more a culture requires or expects of women in the domestic
sphere, the less opportunity they have of achieving equality with men in
either sphere. The second important connection between culture and
gender is that most cultures have as one of their principal aims the control
of women by men. Consider, for example, the founding myths of Greek
and Roman antiquity, and of Judaism, Christianity, and Islam: they are
rife with attempts to justify the control and subordination of women.
These myths consist of a combination of denials of women’s roles in
reproduction; appropriation by men of the power to reproduce
themselves; characterization of women as overly emotional,
untrustworthy, evil, or sexually dangerous; and refusals to acknowledge
mothers’ rights over the disposition of their children … Many of the
world’s traditions and cultures … are quite distinctly patriarchal. They
have elaborate patters of socialization, rituals, matrimonial customs, and
other cultural practices (including systems of property ownership and
control of resources) aimed at bringing women’s sexuality and
reproductive capabilities under men’s control. Many such practices make
it virtually impossible for women to choose to live independently of men,
to be celibate or lesbian, or to decide not to have children. Those who
practice some of the most controversial of such customs – clitoridectomy,
polygamy, the marriage of children or marriages that are otherwise
coerced – sometimes explicitly defend them as necessary for controlling
women and openly acknowledge that the customs persists at men’s
insistence.”397

Until a few decades ago minority cultures in the West were typically
expected to assimilate into majority cultures. The oppressiveness of this
assimilationist expectation soon became apparent. Many Western states
397
Quoted from extract in Freeman, pp.1246-1247.

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began to devise new policies designed to accommodate cultural
differences. And so one of the problems that feminism has had to
confront is the right of other cultures to live according to their own value
systems, albeit that these cultures appear to Western feminists to be
detrimental to women in that they may legitimate gender inequalities.

Some feminist scholars argue that the use of ‘cultural defence’ could lead
to women being denied protection in the third world when that would be
taken for granted by western women. Consider, for example, the
following questions. Should a man be allowed to invoke his traditional
custom of ‘marriage by capture’ to a charge of rape? Should a rapist
escape criminal liability by offering or being made to marry his rape
victim? Would the law be justified in refusing a woman consenting to be
circumcised, but allowing her to consent to breast feeding?

Other feminists argue that Western condemnation of the ‘cultural

defence’ is premised on a view that the cultures of Third World countries
‘lag behind’ the West, or are simply ‘primitive’. They argue that
‘maleness’ has long been the norm; and that now Western culture is being
presented as the standard by which to judge morality. An example often
cited of this western acculturation is the fact that post-colonial courts in
Africa persevere in their refusal to apply or enforce customs demonized
as ‘repugnant’ to ‘natural justice, equity and good conscience’, without a
critical examination of that formula.

Oloka-Onyango and Tamale denounce “the arrogance that fired the

Christian crusades of erstwhile eras, and the gerrymandered and
autocratic fiat of the colonial African chief that still exists today.” They
call for a cross, rather than supra, cultural approach to genuine issues

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arising within specific socio-cultural context. They also call for unity of
strategy within a ‘programmatic reorientation of women’s rights’, a unity
that leaves ‘adequate space for a diversity of perspectives.

“In order to go beyond the cultural determinism of both north and south,
it is essential to confront the dual aspects of relativism … Western
discourse on the subject of culture elicits interesting dichotomies. On the
one hand – in the Donnelly version – the west has a monopoly of ‘high’
culture, a feature that is lacking elsewhere. On the other hand, western
society is without or beyond culture. Similarly, Southern politicians who
have been thoroughly acculturated evoke the notion of culture in order to
legitimize and retain their traditional hegemony over oppressed social and
oppressed social and political minorities.”398

They introduce a hitherto ignored dimension into the ‘cultural relativism’

debate - globalization.

Taking the phenomenon of cultural relativism as another example, it is

quite clear that its emergence and growth in the south is not simply linked
to local conditions of domination and patriarchy, but is directly related to
the increasing differentiation third world communities are experiencing
under current global economic and political policies. The narrow
application of culture thus serves as both an escape valve for frustration
with the stifling economic order and a hook on which patriarchy can
further consolidate its local hegemony. In order words, the internal
domestic structure of a single third world nation is increasingly
determined by the political economy of international law and relations.
To forget this is to produce a truncated feminism with little resonance for
398
Oloka-Onyango & Tamale, p.713.

368
the vast majority of African women. Given these links, the failure to fully
integrate third world perspectives into theoretical analysis of international
feminism will lead only to partial solutions to the problem of the
universal marginalization of women. As a result, it will have serious
implications for the evolution of the movement. This will be so even if
the feminist agenda succeeds in making inroads at the international
level.”399

In their view, “the process of defining, articulating, and executing the

agenda” on women’s human rights at the international level will take
place with or without the involvement of third world women.

“This is largely due to the differential access to the international

institutions of decision-making at which such agendas are ramified, in
addition to the ‘missionary zeal’ and jingoism by which such activities
are frequently driven. This is especially the case when Western and
multilateral institutions graft a ‘gender agenda’ onto their activities, as
part of the charade of ‘participation’ and ‘development’, which have
become the rage in such circles.”400

They believe the applicability of the questions of law and feminism to the
particular context of the African struggle should be considered. In doing
so, they say, it is important to look back to the past and to critically re-
examine the present.

“The legacy of history of law and legalism in Africa is twofold, colonial

inequality and suppression, and the immediate post-colonial experience

399
Idem., p.703.
400
Idem., p. 699.

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of fascist hegemony and oppression. Colonial law not only sought to
commoditize the relations of production, but also to transform existing
social, political, and cultural structures of organization. Thus, in
transferring imperial law from the so-called ‘mother-country’ it did so as
a truncated, abrasive, and patently authoritarian edifice of the system it
was designed to regulate. The pretense of law’s neutrality, impartiality,
and rationality as a promoter of social and other forms of equality was
lost as it crossed the oceans to form the cement of pax colonalia. …
[C]olonialism radically altered gender relations and introduced a
permanent double jeopardy for women. Women were de-equalized – first
(alongside the men) through the mechanics of the judicial system
imposed by the colonialists which discriminated against ‘natives’ and
secondly through the reinterpreted ‘customary law’ that was
progressively (re)constructed by the colonialists and specific African
men. … [T]he colonial customary law was not only retained, but further
entrenched, indigenized, and legitimated. … Without a new theory of
law, the liberation of women will remain truncated and forever held
ransom to the dictates of the androcentric, capitalist, racist, and
ethnocentric interest that presently monopolize the international arena.” 401

Section 2 Feminist Legal Methods

The idea of a feminist jurisprudence, say feminists, holds out the promise
of a general theory of law grounded in women’s experience and having
practical applications; a theoretical framework fully integrated into
political practice and which will be transformative, unlike partial
measures of the past.
401
Idem., pp. 723, 724, 725.

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Feminist legal methodology is influenced by the interpretative or
hermeneutic tradition, and the methods of critical theory. According to J.
McCarl Nielsen “the positivists’ goal is to predict and control; the
hermeneutics’ is to understand; and the critical theorists’ approach is to
emancipate – that is, to uncover aspects of society, especially ideologies,
that maintain the status quo by restricting or limiting different groups’
access to the means of gaining knowledge.” 402

In making an interpretative critique of patriarchal jurisprudence, Robin

West observes that some legal theorists practice ‘narrative’ (and
‘phenomenological’) jurisprudence and some practice an ‘interpretative’
(hermeneutics) method

“Narrative and interpretative methodology have adherents in both liberal

and critical literature … ‘Narrative legal theory’ … moves
methodologically from a description of justice, the state of nature, or of
the ‘human being’ which aims for degree of generality if not universality,
and then tells either a narrative story about how human beings thus
described came to agree on the Rule of Law … Human beings create the
Rule of Law from the state of nature to comply with the demands of
justice and the narrative theorists tells how and why. ‘Interpretative’
jurisprudence … moves methodologically in the opposite direction.
Interpretative theorists begin with an interpretation of law, or of a body of
legal doctrine, or of the idea of law itself, and derive from that
interpretation an account of justice. The methodological assumption of
interpretative jurisprudence is that the legal text not only reflects, but to

402
JM Nielsen, Feminist Research Methods (1990), p.9, quoted in Freeman, p. 1134.

371
some extent even defines what justice requires and hence what a person
is. It is the purpose of interpretative jurisprudence to provide the best
interpretation of the ‘justice’ and that the legal text has defined.” 403

Contemporary feminists along with other postmodernists reject the idea

that there is a self-contained ‘subject’ separable from social reality. They
problematise that ‘the human subject’ can be conceived of as a unitary
agent of intervention in the social world. The ‘subject’, be it human, is a
social construct, the product of multiple structures, and discourses such as
history, culture and language, beyond individual control. ‘He’ is there not
separable from the social world around ‘him’.

Challenging objective truth necessarily means challenging such

manifestation of it as the law itself and the criteria for legal legitimacy,
both of which are also social constructs. Challenging the law and the
criteria for legal legitimacy, means deconstructing their supposed
neutrality and rationality, and exposing the gender hierarchies endemic in
them.

Katherine Bartlett emphasizes three characteristically feminist methods

that arise from and sustain feminist study and practice of law: asking the
woman question; feminist practical reasoning; and feminist
consciousness-raising. According to her these methods reveal things that
traditional legal methods ignore 404. She observes that the point of legal
methods is to reach answers that are legally defensible or in some sense
right. She explores and evaluates three theories of knowledge in feminist

403
Quoted from extract in Freeman, pp. 1168-1189.
404
K Bartlett, ‘Feminist Legal Methods,’ (1990) 103 Harv. L. Rev. 829; extract in
Freeman, pp. 1197-1215.

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legal thinking, namely, the rational/empirical position, standpoint
epistemology, and postmodernism; and then she argues for a fourth
stance which she calls ‘positionality’ – a synthesis of some aspects of the
first three.

On the rational/empirical position she notes that feminists in law attempt

to use the tools of law, on its own terms, to improve law. They often
challenge assumptions about women that underlie numerous laws and
demonstrate how laws based upon these assumptions are not rational and
neutral, but rather irrational and discriminatory. “When engaged in these
challenges,” she writes, “feminists operate from a rational/empirical
position that assumes that the law is not objective, but that identifying
and correcting its mistaken assumptions can make it more objective.” 405

Regarding ‘standpoint epistemology’ she says:

“The problem of knowability in feminist thought arises from the

observation that what women know has been determined – perhaps over-
determined by male culture. Some of the feminists most concerned about
the problem of over-determination have adopted a ‘standpoint
epistemology’ to provide the grounding upon which feminists can claim
that their own legal methods, legal reasoning, and proposals for
substantive legal reforms are ‘right’. Feminist standpoint epistemology
identifies women’s status as that of victim, and then privileges that status
by claiming that it gives access to understanding about oppression that
others cannot have.” 406

405
Quoted from extract in Freeman, p. 1207.
406
Quoted from extract in Freeman, p. 1208.

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In Bartlett’s view, the postmodern or post-structural critique of
foundationalism resolves the problem of knowability in a quite different
way.

“While standpoint epistemology relocates the source of knowledge from

the oppressor to the oppressed, the postmodern critique of
foundationalism questions the possibility of knowledge, including
knowledge about categories of people such as women. This critique
rejects essentialist thinking as it insists that the subject, including the
female subject, has no core identity but rather but rather is constituted
through multiple structures and discourse that in various ways overlap,
intersect, and contradict each other. Although these structures and
discourses ‘over-determine’ women and thereby produce ‘the subject’s
experience of differentiated identity and … autonomy’, the postmodern
view posits that the realities experienced by the subject are not in any
way transcendent or repre4sentational, but rather particular and
fluctuating, constituted within a complex of social contexts. Within
position, being human, or female, is strictly a matter of social, historical,
and cultural construction. Postmodern critiques have challenged the
binary oppositions in language, law, and other socially-constituted
systems, oppositions which privilege one presence – male, rationality,
objectivity – and marginalize its opposite – female, irrationality,
subjectivity. Postmodernism removes the grounding from these
oppositions and from all other systems of power or truth that claim
legitimacy on the basis of external foundations or authorities. In so doing,
it removes external grounding from any particular agenda for social
reform.”407

407
Idem., p. 1210.

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Bartlett synthesizes some aspects of the above three positions into a
fourth stance which she calls ‘positionality’.

“Positionality is a stance from which a number of apparently inconsistent

feminist ‘truths’ make sense. The positional stance acknowledges the
existence of empirical truths, values and knowledge, and also their
contingency. It thereby provides a basis for feminist commitment and
political action, but views these commitments as provisional and subject
to further critical evaluation and revision. Like standpoint epistemology,
positionality retains a concept of knowledge based upon experience.
Experience interacts with an individual’s current perceptions to reveal
new understandings and to help that individual, with others, make sense
of those perceptions … Like the postmodern position, however,
positionality rejects the perfectibility, externality, or objectivity of truth.
Instead, the positional knower conceives of truth as situated and partial.
Truth is situated in that it emerges from particular involvements and
relationships. These relationships, not some essential or innate
characteristics of the individual, define the individual’s perspective and
provide the location for meaning, identity, and political commitment …
Truth is partial in that the individual perspectives that yield and judge
truth are necessarily incomplete. No individual can understand except
from some limited perspective … As a result, there will always be
‘knowers’ who have access to knowledge that other individuals do not
have, and no one’s truth can be deemed total or final.” 408

408
Qouted from extract in Freeman, p. 1212.

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Another feminist scholar, Lucinda Finley, examines the relationship
between language, power and the law. 409 She argues that legal language
and reasoning are male gendered.

“[T]he primary linguists of law have almost exclusively been men …

Men have shaped it, they have defined it, they have interpreted it and
given it meaning consistent with their understanding of the world and of
people ‘other’ than them. As the men of law have defined law in their
own image, law has excluded or marginalized the voices and meanings of
these ‘others’.”410

However, Finley points out that the claim that law is patriarchal does not
mean that women have not been addressed or comprehended by law.
“Women have obviously been the subjects or contemplated targets of
many laws. But it is men’s understanding of women, women’s nature,
women’s capacities, and women’s experiences – women refracted
through the male eye – rather than women’s own definitions that has
informed law.”411

Finley gives many examples of ‘malestream’ law: definition of rape and

sex; meaning of ‘work’ in labour law; ‘force’ in self-defence; ‘resistance’
in rape; prostitution as a crime committed by women; the meaning of
family; the area of family. She advocates the ‘mainstreaming’ of feminist
legal theory and proposes critical engagements with the nature of legal

409
LM Finley, ‘Breaking Women’s Silence in Law: The Dilemma of the Gendered
Nature of Legal Reasoning,’ (1989) 64 Notre Dame Law Rev. 886; extract in
Freeman, pp.1215-1225.
410
Quoted from extract in Freeman, p. 1215.
411
Idem., p. 1217.

376
language to bring women’s experiences, perspectives and voices into law
to empower women and help legitimate these experiences.

Feminist theory, she contends, is not derived from looking first to law.
Rather, it is derived from looking to the multiple experiences and voices
of women as the frame of reference. Feminist theory

“tells us to look at things in their historical, social, and political context,

including power and gender; distrust abstractions and universal rules,
because ‘objectivity’ is really perspectived and abstractions just hide the
biases; question everything, especially the norms or assumptions implicit
in received doctrine, question the content and try to redefine the
boundaries; distrust attributions of essential difference and acknowledge
that experiences of both men and women are multiple, diverse,
overlapping and thus difference itself may not be a relevant legal
criterion; break down hierarchies of race, gender, or power; embrace
diversity, complexity, and contradiction – give up on the need to tell ‘one
true story’ because it is too likely that the story will be the story of the
dominant group; listen to the voice of ‘emotion’ as well as the voices of
reason and learn to value and legitimate what has denigrated as ‘mere
emotion’.”412

Law’s greatest strength is its power; but paradoxically that power is also
its weakness. The law’s weakness arises from its conservative nature, its
‘irrationality, incoherence and discriminatory’ character. That is why in
order to bring about gender equality through law reform feminist theorists
set much store on de-centering the law and demolishing patriarchy. In the
view of feminist legal thinkers law reform cannot build from existing
412
Quoted from extract in Feeman., p. 1223.

377
legal precedents and doctrines because these are often decidedly
androcentric (i.e. male-centric), taking for granted and reinforcing a
status quo that is more favourable to male interests than to female ones.

378
379
380
 Chapter Fourteen

Liberalism and the Challenge of Communitarianism

Section 1 Liberalism
Liberalism is the dominant form of government and political institutions
in Western democracies. It makes two claims. First, it claims to protect
the freedom and independence of the individual. It presumes to do so by
adopting a supposedly neutral attitude towards the private moral life of

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the individual. Secondly, liberalism endorses private rights as the basis of
moral deliberations.
Liberals believe that fundamental human rights are universal and inherent
in the individual due to his human status rather than due to social,
political or historical conditions. They posit that the individual is
vulnerable to oppression by his fellow citizens and by the state, and that
therefore the state must adopt and firmly apply a system of individual
rights.
Liberalism sees the individual as an independent being that joins social
life for the sole purpose of furthering self-centred interests and values. It
treats individual wants and desires as things developed prior to and in
isolation from the collective and political sphere. Those wants and desires
are therefore not subject to public debate and deliberations. Indeed, the
central idea of liberalism is that the existence of pluralism in society
requires the state to remain neutral towards the competing conceptions of
good in society. The state must exercise only a minimal control over the
‘private sphere’, leaving the individual free to fashion his own plan and
pursue his own idea of the ‘good’.

Liberalism sees the individual as the ultimate subject of moral value. It

posits the privatization of morality (i.e., that moral choices are a private
affair) and politics. By its uncompromising emphasis on self-interest and
individualism liberalism separates the individual from his community.

This ‘atomistic theory of liberalism’ derives from the philosophies of

Thomas Hobbes, John Locke and Immanuel Kant. It is strongly
canvassed by Robert Nozick in his Anarchy State and Utopia (1974). One
leading exponent of the traditional claims of the liberal theory of law is
Ronald Dworkin. In his A Matter of Principle (1986) he upholds

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liberalism as an autonomous, coherent and complete set of public
principles.413

Joseph Raz also posits that “the good life is a successful autonomous life”
so that a government is bound “to be sensitive to the need of people to be
free in the sense of being capable of leading successful autonomous
lives”.414 In the view of Raz, individual autonomy and liberty impose,
beneficently, severe limits on state moral paternalism. The main purpose
of government, he argues, is to assist people to lead successful and
fulfilling lives. People’s lives are successful and fulfilling to the extent
that they are “spent in whole-hearted and successful engagement in
valuable activities and relationships.” 415

Section 2 Communitarianism

Communitarianism is a legal and philosophical theory that rejects

liberalism. It regards a community of ‘situated selves’ (i.e. individuals in
circumstances of a specified kind) as the basis of a good human life. It
denies that individual rights belong to the ‘private sphere’ in which the
state should interfere only minimally.

Communitrians argue that liberalism’s espousal of the idea of neutrality

by the state in the private moral life of the individual means one of two
things: either that moral life is relegated to the so-called ‘private domain’,
or that the pretences to neutrality/ tolerance are a mere fancy. They

413
A van Blerk, Jurisprudence – An Introduction, p. 209.
414
J Raz, ‘Liberty and Trust’ in R George (ed.), Natural Law, Liberalism and
Morality (1996) 113, cited in Freeman 366.
415
Idem.

383
contend that focusing solely on the individual, without taking into
account his interaction with others, is tantamount to creating an
‘autonomous individual’ that simply does not exist in real life. In the
view of communitarians, a person’s roles, his relationships, and his
commitments define individual action and connect with it.

Communitarianism is in part informed by postmodernist theory.

Postmodernism attacks the individualistic, subject-centred and
foundational modes of liberalism. It accuses liberal thinking of scheming
and of responsibility for the sense of alienation that the modern man in
the West experiences. According to postmodernism, individual autonomy
is not universal; it is socially and culturally constituted (i.e. formed). In
order to understand the alienation experienced in the individualistic world
of the West human nature needs to be examined in the light of social and
cultural interpretations of existence.

The broad general idea of communitarianism subsumes a pronounced

diversity within that theory. That diversity translates into three currents of
ideas: one focuses on the position of the individual in society; the other
on the source of value/morality in society; and the third on communal
morality and politics.416

A. Rejection of Concept of an atom-like, autonomous individual

416
SA Gardbaum, ‘Law, Politics and Claims of Community’ (1992) 90 Michigan
Law Review 685, cited and discussed in Blerk 194-216.

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Exponents of communitarianism reject liberalism’s idea that the
individual is a ‘self-contained, unencumbered and self-sufficient’ person.
They argue that the human individual is not an atom-like, autonomous
and freely choosing subject. To them, the individual self is situated, and
constituted by, community values and commitments. In other words, the
human individual finds himself in circumstances of specified kind and is
conditioned by the values and commitments of his community.
Personhood, they argue, means presence and participation in the life of
the community.

In the view of communitarians, liberalism’s emphasis on individual

autonomy as the only vision of social organisation is an empty conception
of the human being. Such a conception, they argue, ultimately is
unfeasible because there is not in existence any such individual who is
independent and is freely able to choose those things that give his life
meaning and value.

Communitarians make the following case. Our understanding of

ourselves, and in fact, our very identity, is formed by the particular
historical community to which we belong. A person’s ‘life-story’ may not
have a prescribed course, but it is deeply rooted in the history of those
communities from which his identity has grown, be it the history of his
family, city, tribe, country, or that of the political party or cause with
which he identifies. Liberalism draws a boundary between so-called
‘public’ and ‘private’ life and remains neutral to the individual’s
subjective conception of good within the ‘private’ arena. By adopting that
attitude, liberalism is in fact being indifferent to and disregarding moral
life within the community. Liberalism is in effect privatizing,
erroneously, what belongs to public life. People are not solitary rights

385
bearers. Rights cannot be defined independently. They are part of ‘on-
going public conversations’ of what is the common good in society. 417

“The communitarian understanding of community is that it must be

genuine. It is more than an association of individuals with similar private
interests, for its members have shared goals that are perceived as shared
by those members, and consequently, valued. These share goals are not
merely individual goals which just happen to be the goals of everyone
else; they are the goals of the community and when these are realised it is
a ‘gain’ for us, that is the community. Liberal society differs in that
individuals see their interests as independent and potentially in conflict
with those of others. The prominence of basic individual rights allows the
citizen to be a freely choosing agent, whose links (or not) with the
community are purely voluntary. This, state communitarians, gives rise to
a self that is viewed as separate and unattached to the community, and
moreover, detachable from that community. Communitarian society,
therefore is best represented by the image of a close, harmonious family,
and the liberal society by the image of the contractual relationship
between asocial and self-interested agents in the market.”418

Communitarians believe that communal values are only possible when

the principles of individualism and subjective value would have been
discarded. The legal system constitutes the numerous social relationships
which mould individual consciousness and make us who we are.

Communitarian scholars paint a dismal picture of the liberal world. For

Roberto Unger, that world as one constituted of isolated individuals with

417
Blerk, pp. 197-198.
418
Idem., p. 198.

386
no objective norms for ordering society, individuals vulnerable to
domination and power disguised in ideology. 419 For Mark Tushnet, it is a
world in which people exist as “isolated islands of individuality who
choose to enter into relations that can metaphorically be characterized as
foreign affairs.”420 Tushnet then pleads in favour of a constitutional
theory that would guard the people against the tyranny of judges
motivated by their singular values and interests.

B. The Community as the Source of Value

The idea that the community rather than the individual is the source of
values in society can be identified in the work of well-known moral and
political thinkers and that of legal thinkers of the contemporary period. 421
Exponents of the meta-ethical strand of communitarian thinking argue
that normative values grow out of particular historical settings of
community life. Such values, they argue, are parochial and intrinsic to the
political entities, contexts and traditions in which they arise. The
community, it is further argued, is the source of values; in other words,
values derive from the community rather than from the individual.

The legal philosopher, Ronald Dworkin, is well known for his strong
espousal of liberalism. But there is one aspect of his work that attracts the
attention of communitarians. That aspect is Dworkin’s support for the
meta-ethical concept of communitarianism. Dworkin suggest that rights

419
Roberto Unger, Knowledge and Politics (1975) 102, cited in Blerk, p. 208.
420
Mark Tushnet, ‘Following the Rules Laid Down,’ (1983) 96 Harvard Law Review
781, 783, cited in Blerk, p. 208.
421
Gardbaum and Blerk mention the following thinkers: Robert Cover, Ronald
Dworkin, Owen Fiss, Jŭrgen Habermas, John Rawls, Joseph Raz, Richard Rorty,
Charles Taylor and Michael Walzer. See Blerk, p. 195.

387
should be informed from a consistent interpretation of institutional
history, and in default, from community morality. In Taking Rights
Seriously (1977) and also in Law’s Empire (1986) he argues that the
values of community are the source of the coherence and authority of the
law.

Dworkin’s support for community does not however mean an attack on

liberalism, a theory he strongly canvasses. The community he supports is
not a particular kind of political association, but community as a source
of law rather than as the source of value. Dworkin canvasses the idea of
‘a community of principles’. In Dworkin’s view the requirements for the
existence of such a community are that: the members must consider the
group’s obligations as special and distinct to that group; the members
must consider their responsibilities as stemming from an overarching
responsibility that each has to be concerned for the well-being of
everyone in the group; the members must perceive their responsibilities
as personal; the group’s action must show equal concern for all its
members.422

Rawls sees congruity between his concept of ‘justice as fairness’ and the
meta-ethical strand of communitarian thinking. In his A Theory of Justice
(1971) however, Rawls does not emphasize the communal sense of
justice. It was much later that he clarified and emphasized the fact that his
conception of justice as fairness is principally communal in nature; that is
to say, a concept of justice true to the moral values shared by each
specific culture. “What justifies a principle of justice,” he says, “is not its
being true to an older precedent and given to us, but its congruence with
our deeper understanding of ourselves and our aspirations, and our
422
Blerk, p. 209.

388
realization that, given our history and the traditions embedded in our
public life, it is the most reasonable doctrine for us.” 423

C. The Community, Morality and Politics

The political dimension of communitarian theory is that community life

and values are a more satisfying way of life than the individualism
promoted by liberalism. Community is presented as an alternative to the
liberal tradition. Communitarianism and liberalism are presented as
antithetical, as representing two types of diametrically opposed types of
substantive political society built upon equally opposing principles of
association. On this perspective, communitarianism does not
accommodate, but stands in opposition to, liberalism.

The focus here is both upon community as the source of value and upon
which values to follow. A stable political community requires common
values, history and tradition, and a shared political vocabulary. It also
requires the cultivation of the single value of substantive community.
Some communitarians argue in favour of closing the gap between politics
and morality. They argue that society is the foundation of morality and
the object of greater value to which any individual choice should be
subordinated. The purpose of law, they contend, is to state and protect the
community as an historical entity based on an inherited morality.

423
John Rawls, ‘Justice as Fairness: Political not Metaphysical,’ (1984) 14
Philosophy and Public Affairs 223, 228; cited in Blerk, p. 210.

389
They further contend that leaving morality to the private domain is an
error because it disrupts the conception of a continuing historically-
founded community. The justification for criminalizing such acts as
homosexuality, abortion, contraception, euthanasia, assisted suicide,
human cloning etc. is not that such acts are necessarily morally wrong,
but that the community has a general right to enforce its morality by
means of law, regardless of the truth or untruth of the morality that is
enforced.424

Whether the community should articulate and preserve a community

morality and use the law to enforce it is an old and recurring controversy.
Gardbaum recalls in this regard the debate between James Fitzjames
Stephen and John Stuart Mill in the nineteenth century, and that between
HLA Hart and Lord Devlin in the 1960s.425 Judge Stephen and Judge
Devlin argued that a community may express and preserve its morality,
and that law and public opinion were appropriate instruments for
enforcing that morality. By contrast, Mill and Hart, exponents of
liberalism, deny that the law may legitimately be used by the community
to enforce its morality.

Mill in his On Liberty (1859) put forward the following doctrine on the
liberty of ‘human beings in the maturity of their faculties’.

“[T]he sole end for which mankind are warranted, individually or

collectively, in interfering with the liberty of action of any other member,

424
Robert Bork, The Tempting of America: The Political Seduction of the Law (1990)
24; cited in Blerk, p. 211.
425
Gardbaum, ‘Law, Politics and the Claims of Community,’ (1992) 90 Michigan
Law Review 685, 720-721, cited in Blerk, p. 203.

390
is self-protection … [T]he only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is
to prevent harm to others. His own good, either physical or moral, is not a
sufficient warrant. He cannot rightfully be compelled to do or forbear
because it would be better for him to do so, because it will make him
happier, because, in the opinion of others, to do so would be wise, or even
right. There are good reasons for remonstrating with him, or reasoning
with him, or persuading him, or entreating him, but not for compelling
him, or visiting him with any evil, in case he do otherwise. To justify that
the conduct from which it is desired to deter him must be calculated to
produce to someone else. The only part of the conduct of anyone, for
which he is amenable to society, is that which concerns others. In the part
which merely concerns himself, his independence is, of right, absolute.
Over himself, over his own body and mind, the individual is
sovereign.”426

Mill’s defence of individual liberty thus implies the rejection of the idea
that the majority had the moral right to dictate how everyone else should
live. Mill’s thesis was attacked by Judge Stephen in his Liberty, Equality
and Fraternity (1873). “It is one thing,” said Stephen, “to tolerate vice so
long as it is inoffensive, and quite another to give it a legal right not only
to exist, but to assert itself in the face of the world as an ‘experiment in
living’ as good as another, and entitled to the same protection from
law.”427

426
See extract in J Feinberg and H Gross (eds.), Philosophy of Law (1986) 206.
427
Quoted in Freeman, p. 365.

391
In England, the publication in 1957 of the Wolfenden report on
Prostitution and Homosexuality triggered a famous debate between
Patrick Devlin, a leading English judge, and HLA Hart, a leading legal
positivist, on the legal enforcement of morality. Devlin attack the
observation of the Wolfenden that there was a realm of private life that
was not the law’s business. In his The Enforcement of Morals (1965)
Devlin argued that there is a public morality that provides the cement of
every human society, and that it is the law’s primary function to maintain
this public morality. Devlin concluded that the “suppression of vice is as
much the law’s business as the suppression of subversive activities.” 428

Hart agrees with Devlin that some shared morality is essential to society.
But, ambiguously, he calls that shared morality ‘universal values’. He
dismisses as fantastic the notion that all morality forms ‘a single seamless
web’ so that deviation from any one part would almost inevitably produce
destruction of the whole. 429

The maintenance of a common morality could take the form of

‘permissiveness (with the resultant weakening of individual capacity for
self-control, and thereby contributing to an increase in violence and
dishonesty), or the form of ‘moral pluralism’ (perhaps leading to a
Hobbesian state-of-nature antagonism, or to mutual tolerance, and the co-
existence of divergent moralities). Hart believed that modern British
society exemplified a trend towards ‘moral pluralism’ with mutual
tolerance and a co-existence of divergent moralities.430

428
Quoted in Freeman, p. 363.
429
Idem., p. 364
430
Idem., pp. 363-364.

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Communitarian thinking is in tune with the view canvassed by Stephen
and Devlin.

“The conservative notion of community rejects leaving too much private

space to the control of the individual, not only because it sees law as the
proper expression of communal standards of morality … but also because
it fears that such individual freedom will threaten communal unity and
order. Therefore, the individual’s self-interest is subordinate to the
morality of the conservative community. From this perspective, the
protection of social organization as a particular type of substantive
community is thus the primary function of public power in conservative
political theory, in contrast to the liberal notion that it is the individual
who must be protected as the primary object of value; both views,
however, give politics a crucial role.”431

Modern republican theories of law stem from the communitarian critical

analysis of individualism. Classical republicanism asserts that citizenship
is natural to man and that man is most himself when he is participating in
a vivere civile. Republican ideology acted as the frame of reference in the
making of the United States Constitution. Apparently, James Madison,
one of the framers of that Constitution, tapped on John Locke’s natural
rights ideas to give constitutional protection to the rights of the propertied
classes. Thomas Jefferson, another founding father of that Constitution,
appeared to have had some misgivings at the way in which the
Constitution had given complete powers to the citizens in their private
capacity and overlooked creating a role for them in their capacity as
citizens and republicans.432

431
Blerk, p. 203.
432
Idem., p. 204.

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In place of the Hobbesian uncompromising republicanism, with its
attendant pursuit of self-interest, modern republicanism proposes the
alternative of communal politics. The republican ethics seeks to cultivate
civic virtue, and to orient citizens to a common good beyond the sum of
individual interests. In the republican view, participatory democracy (the
participation of citizens in the decision-making process of their society) is
the condition sine qua non for the establishment of a common ‘public
good’.

The attraction of civic republicanism for legal theory and communitarian

thinking is that it is radically different from the core idea of liberal
political theory. Republicans differ radically from exponents of liberalism
in that unlike liberals they emphasise the creative role of politics as the
forum for public debate and the articulation of virtue and public good by
the public.

“They assert that self-government is integral to personal fulfillment, and

that the political community is the legitimate entity to promote virtue and
the common good. They further believe that the private sphere has
encroached upon what properly belongs in public life, and that it is the
role of the citizen within a community mediated by political community
to realize the common good; this embodies the morality of
republicanism.”433

In a nutshell, ‘The republicans seek to nurture citoyen as opposed to

homme, the public spirit as opposed to altruism, and regard the political

433
Idem., p. 205.

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arena as the proper nursery of the human good.” 434 They wish to move
away from political behaviour driven by narrow self-interest towards a
larger role for civic virtue in the political life of society. In such a
community the role of constitutional law would be to guard and buttress
these communitarian aspects of political life. Law would become the
product of politics, what Frank Michelman denotes as ‘jurisgenerative
politics’435. Michelman argues that a functional conception of
jurisgenerative politics must satisfy the principle of self-government
(government by men) and the principle of the Rule of Law (government
by laws).

Republicanism would like to bring all that is ‘private’ into the public
light; for, republicanists argue that numerous threats are posed by private
power in the private arena, behind the closed doors of family homes,
Micheman thus argues for the ‘right’ to homosexuality in private,
protected by the right to privacy. He would extend that ‘right’ to include
the right of homosexuals to take part in the public space as a homosexual.
He points out that laws which criminalize homosexual acts interfere not
only with the freedom to choose what one does in private, but also the
freedom to take part in public life and to challenge and test established
norms.

Marxism subscribes to the idea of community, but from a different

perspective. Communitarians contend that morality and politics are
matters of public life. The Marxist model of community however insists
on the liberation of man from politics. Karl Marx’s early vision for

434
Idem., p. 207.
435
‘Laws Republic,’ (1988) 97 Yale Law Journal 1493, 1502; cited in Blerk, p. 212.

395
human emancipation involved ending the individual’s separation from his
community.

Drawing from this insight, CLS scholars seek t unite individual and
community, a quest dismissed in some quarters as ‘utopian’. They seek to
transform society through legal reform. Law, they contend, has a
constitutive, ideological impact and employs such legal constructs as
property to make ‘might into right’. They deny that legal argument is
autonomous from moral, economical and political discourse in general.

But Marxists see politics as a worthless human pursuit, devised by the

economically dominant class as a powerful means of protecting that
hegemony. Marxism is premised upon a theory of natural social harmony.
It is opposed to the liberal notion that a permanent conflict of interests
exists. Marxist ideology seeks to transcend conflict by making politics
redundant. The outcome, as Marxists see it, is ‘a human community’, that
is, “a social and economic community of freely associated producers,
rather than a community based on politics.” 436

436
Blerk, p. 208.

396