JURISPRUDENCE

Lesson 1
Introductory remarks and housekeeping rules were shared together with the course outline on
29 August

Lesson 2
Introduction to Jurisprudence I

Nature and Scope of Jurisprudence

What is Jurisprudence?

Essential Reading:

M. Freeman (Ed) Lloyd‘s Introduction to Jurisprudence

H.L.A. Hart's The Concept of Law

There is no universal or uniform definition of Jurisprudence since people have different ideologies and
notions throughout the world. It is a very vast subject. When an author talks about political conditions of
his society, it reflects that condition of law prevailing at that time. The Romans were the first to study what
is law.

Jurisprudence as a Concept
Jurisprudence is the study of law, or the philosophy of law. It helps us better understand the
creation, application, and enforcement of laws. It is a type of science that explores the
creation, application, enforcement and repealing of laws. Jurisprudence is the study of
theories and philosophies regarding law. Sometimes it is referred to as theories of law. If we
understand the theories and philosophies behind law, then we can better understand our laws.
This lesson explains what jurisprudence is, and explores some specific schools of
Jurisprudence. The word 'jurisprudence' is derived from the Latin phrase juris prudentia. This
means 'knowledge of the law'.
Juris = Law
Prudentia = Knowledge
The English term is based on the Latin word jurisprudentia: juris is the genitive form of j us
m eani ng "l aw ", an d prudent i a m eans "knowl ed ge ". Th e word i s fi rs t
at t es t ed i n English in 1628, at a time when the word prudence had the now obsolete
meaning of "knowl ed ge of or ski l l i n a m at t er". J urisprudence is a study of the
fundamental legal principles. It may be described as any thought or writing about law. It is a
procedureo r a c o n c e p t t o u n d e r s t a n d t h e e s s e n t i a l p r i n c i p l e s o f l a w a n d
legal system.

Jurists, philosophers and scholars of law ask:

What is law?
What is its origin?
What is its nature?
1. W h a t s h o u l d i t b e ?
The y ho pe t o obt ai n a deep er unde rst an di ng of t he n at ure o f l aw, of l e gal
reasoning, legal systems and of legal institutions.

Jurisprudence is distinguishable from Traditional Black Letter Law

Jurisprudence looks at the same subject matter through different philosophical glasses. In
jurisprudence we are not concerned to derive rules from authority and apply them
to problems/facts so we can deduce conclusions, we are concerned rather to reflect
on the nature of legal rules, on the underlying meaning of legal concepts and on the
essential features of legal system.
Jurisprudence is not built on rules and case law. It can be whatever it wishes to be. What
appears to be a slippery fish in terms of being able to grasp the ―essence‖ of the subject
matter, Jurisprudence is a body of work based on countless viewpoints discussing similar
questions.
To help my students grasp this, I illustrate through:
1. Question of a Glass
Using a glass that is not fully filled, and then asking them to describe what they see.

Expected answers: Some will see it as half empty, half full, half filled, etc.

None of these answers are wrong but they describe how individual students see the same
issue/thing.

2. Question of Greeting
Using a set of students from similar ethnic community to show how they greet each other.
Expected actions: Westerners hug, Baganda women kneel and men stand, Northerners
will either shake hands or do similar to Baganda while Europeans are likely to kiss.
Each of these actions signifies a way or greeting and sign of respect and acknowledgment
of the other person. Again, the same issue from the lens of different communities.
3. Question of marriage
Mohamedan, Hindu, Customary, Christian –they are all marriages, regulating relations,
rights and obligations.

Likewise, in jurisprudence, how you frame a question will often dictate what kind of
discussion will follow and which inclinations might reflect the schools of jurisprudence.
For example, if you ask, what is law? Expect the following responses-
 A description of law
 A reflection of essence of law as a rule or norm
 A positivist view of law properly so called(John Austin)
Thus, whereas in law we look for the rule relevant and applicable to a given situation or
issue, in jurisprudence we ask what it is for a rule to be a legal rule, and what
distinguishes law from morality, etiquette and other related. Therefore, rather than seek
to understand jurisprudence as an entity or subject like Criminal Law or Contract law, you
should see jurisprudence as a philosophy of law, a philosophy which seeks to provide
different perspectives on what law is, what law ought to be and most importantly, how those
issues of ―is and ought‖ play out in the real world – today and in the past. You also need to be
mindful of the historical context within which each legal theory is developing from.

Lesson 3
Contrasts and Comparisons in Selected Legal Theories
Modern jurisprudence began in the 18thcentury and was focused on the first principles
of the law of nature, civil law, and the law of nations. General Jurisprudence can
be broken into categories both by the types of questions scholars seek to address
and by the theories of jurisprudence or schools
of t hought r e gardi n g how t hose quest i ons are best t o be ans wered.
The first category looks at the types of questions jurists and scholars seek to address. These
questions mostly represent one of two sub-categories. The first sub-category is analytic/al
jurisprudence. This addresses the meanings and uses of legal concepts, such as, 'what is
law?'The second sub-category is normative jurisprudence. This addresses the moral basis
of law, such as, 'what is the purpose of law?'The other category represents theories or Schools
of jurisprudence. These are numerous.
They include:
1. Natural law theory
2. Positivism/Analytical Jurisprudence
3. Sociological Jurisprudence
4. Marxist School
5. Critical Legal Studies
6. Feminist Legal Studies
Do note that there are so many more theories.
In writing about jurisprudence, you will be expected to compare and contrast what the
different theorists or schools of jurisprudence say about the same subject matter – you will
need to show the examiners that:
 You have a firm understanding of the differences between the leading theorists
 That you understand the differences between theories in a way that allows you to
formulate your own conclusion about the same questions.
In this lecture, I want to focus on demonstrating such comparisons and contrasts among the
key schools we will focus on in the course of this academic year.
School of What is law What is the origin What is the
Jurisprudence and nature of law relationship
between Law and
Morality

Natural Law Theory Pure reason, the Law comes before Law is applied ethics
―Word‖ the State
Law is
metaphysically
characterised
Positivism/Analytical Command of the The State creates They are mutually
Jurisprudence Sovereign power Law separable concepts
Law is concrete,
perceptible
Sociological School Wisdom of men and Law is a product of Accepts the
women in society relations between Positivist view but
men and women. agrees that it is
Each, i.e. Law and difficult for men and
State, influences the women to formulate
development of the rules/laws that are
other not in sync with
society‘s view on
what is right or
wrong

Contrasts and Comparisons

There are various schools of jurisprudence/Legal theories. They all differ in their views
largely based on the nature of law, origin of law and relationship between Law and
Ethics/Morality.

I. The Nature of Law

To the Natural Law jurist, law is antecedent to the state. Law pre-dates, pre-exists the
state. Make reference to the Biblical verse on ―the Word‖. On the other hand,
Positivists maintain that law is a creation of the state. The Historical School from
which Sociological School emerged sees law and the state as products developing side
by side with each influencing the other in a historical context. The Sociological
School further nuanced it by showing that law is a social consciousness and reality
obtaining in a given society. The Realist School sees law as a product of a judicial
process.

II. The Origin of Law

To the Natural Law Jurists law is cognizable by pure reason while to Positivists, law
has its origin in the command of the Sovereign Power. To the Historical Jurists
(similarly Sociological School), law originates from the formulated wisdom of men
and women in society, it is the social realities in society at any given period in time.
The Realists view law as originating from judicial decisions.

III. The Relationship Between Law and Ethics/Morality

To the Natural Law Jurists law is applied ethics. In extreme forms of this theory, that
which is not right or just is not law. To the Positivists, a law that commands what is
ethically or morally wrong or forbids that which is ethically or morally right is law
nonetheless, as long as it proceeds from the Sovereign Power. The Historical and
Sociological School accept the positivist School‘s position but point out that it will be
difficult for the law maker to advance a position that is otherwise contra to the
contemporary sense of what is right or wrong as drawn from the consciousness and
wisdom of the people and that if laws contrary to that sense are passed, they will be
difficult to enforce. They emphasise the great part played by social customs in
developing and establishing law. In other words, law must reflect the social realities –
values, attitudes, behaviour and perceptions in society, irrespective of the ethical and
moral concerns. Finally, the Realists think the idea of morality or justness of law is
irrelevant; rather, it is the implications of the decision of a judicial officer that is
crucial.

You are advised to do your own reading on:

1. What is law
2. What is natural law (see above)
3. What law ought to be
4. What is a legal system (e.g., Comparing Austin‘s ―Command Theory‖ and ―Hart‘s Rules
of Recognition)
5. Can law be valid without law being moral
6. H.L.A. Hart‘s ―minimum content of Law.‖
7. Lon Fuller ―Inner morality of Law.
8. What is legal validity?
As you listen to jurisprudence lectures, pay close attention to the question that each
theorist/theory is saying or asking. Listen to the discussion as a starting point to appreciate
the different meanings attach by each theorist in so far as how they wish the world to view
―the law‖.
NATURAL LAW
Natural law is deposited by human beings but there is an extra human source. Some think it‘s
from God and others from nature.
Principles of natural law applies not only to society but also to the cosmos (nature).
Natural law is of universal application. It is not limited.
It is timeless. It is largely unchanging through time. It is the same today and tomorrow.
Though in the 20th century, natural law content is abit changing.
It is associated with content that is related to morality, ethics, justice, truth, harmony, order
and balance.
Various natural law theories have specificity that is historical specificity for particular natural
law theories. It is only in this context that gives meaning to these theories.
 Natural law is one of the most enduring concepts in philosophy, political science and
legal theory.
Originally natural law was a religious or supernatural concept- but its meaning has been
changing over time and in modern times, it has been found to be an important weapon both as
a political and legal ideology
 As an ideology, it has been used to provide a moral justification for existing social,
economic and legal systems.
 By arguing that the existing actual or positive law is based on a higher law- dictated
by reason, the actual legal system is a given sanctify or legitimacy it would otherwise
not posses and can be enforceable by the state.
 Natural law, therefore, is law that exists naturally or law existing by nature without
man‘s help.
 The idea of natural rights had its origin in the interests of conservative forces, anxious
to sanctify property as a fundamental human rights even over riding the right to life
itself.

On the other hand some natural law theories may express a disillusionment of the status quo,
maybe a critique of the status quo and the justify a challenge of the social order.
Natural law has also presented at certain historical revolutionary moments such as during the
American Declaration of Rights of man and some of the slogans used by the philosophers
behind the French revolution of 1789
 Natural law diminished in the 17th and 18th century but it has seen a revival in the
20th particularly after the World War II.
 Throughout the century therefore, natural law has been used after times for
contradicting purpose.
 It may therefore be analysed from three distinctive historical periods: Ancient period,
the Mediaeval and the modern period
EGYPTIAN CONCEPT OF MAAT
The earlier ideas about natural law can be traced to the Egyptians concept of Maat.
The principles of Maat were linked to the Egyptian legal system with the king as the Lord of
Maat as the enforcer of those principles. Maat was linked to justice, truth and harmony.
Maat or Ma'at was the ancient Egyptian concept of truth, balance, order,
harmony, law, morality, and justice. Maat was also personified as a goddess regulating the
stars, seasons, and the actions of both mortals and the deities, who set the order of the
universe from chaos at the moment of creation.

After her role in creation and continuously preventing the universe from returning to chaos,
her primary role in Egyptian mythologydealt with the weighing of souls (also called the
weighing of the heart) that took place in the underworld, Duat.[2] Her feather was the measure
that determined whether the souls (considered to reside in the heart) of the departed would
reach the paradise of afterlife successfully.
In the Duat, the Egyptian underworld, the hearts of the dead were said to be weighed against
her single "Feather of Ma'at", symbolically representing the concept of Maat, in theHall of
Two Truths. This is why hearts were left in Egyptian mummies while their other organs were
removed, as the heart (called "ib") was seen as part of the Egyptian soul. If the heart was
found to be lighter or equal in weight to the feather of Maat, the deceased had led a virtuous
life and would go on to Aaru. Osiris came to be seen as the guardian of the gates of Aaru
after he became part of the Egyptian pantheon and displaced Anubis in the Ogdoad tradition.
A heart which was unworthy was devoured by the goddessAmmit and its owner condemned
to remain in the Dua
Pharaohs are often depicted with the emblems of Maat to emphasise their role in upholding
the laws of the Creator. follow throughout their daily lives. They were expected to act with
honor and truth in manners that involve family, the community, the nation, the environment,
and god.[4]
Maat as a principle was formed to meet the complex needs of the emergent Egyptian state
that embraced diverse peoples with conflicting interests.[5] The development of such rules
sought to avert chaos and it became the basis of Egyptian law. From an early period the King
would describe himself as the "Lord of Maat" who decreed with his mouth the Maat he
conceived in his heart.
The significance of Maat developed to the point that it embraced all aspects of existence,
including the basic equilibrium of the universe, the relationship between constituent parts, the
cycle of the seasons, heavenly movements, religious observations and fair dealings, honesty
and truthfulness in social interactions.[5]
The ancient Egyptians had a deep conviction of an underlying holiness and unity within the
universe. Cosmic harmony was achieved by correct public and ritual life. Any disturbance in
cosmic harmony could have consequences for the individual as well as the state. An impious
King could bring about famine or blasphemy blindness to an individual.[6] In opposition to
the right order expressed in the concept of Maat is the concept of Isfet: chaos, lies and
violence
To the Egyptian mind, Maat bound all things together in an indestructible unity: the universe,
the natural world, the state, and the individual were all seen as parts of the wider order
generated by Maat.
A passage in the Instruction of Ptahhotep presents Ma'at as follows:
Ma'at is good and its worth is lasting.
It has not been disturbed since the day of its creator,
whereas he who transgresses its ordinances is punished.
It lies as a path in front even of him who knows nothing.
Wrongdoing has never yet brought its venture to port.
It is true that evil may gain wealth but the strength of truth is that it lasts;
a man can say: "It was the property of my father
Maat v Natural law
Maat is similar to natural law in all those senses and is similar to natural law by looking at the
common principles they share.
Natural law is seen as universal and also maat embraced all aspects of existence including the
basic equilibrium of the universe.
The fact that maat was also personified as a goddess regulating the stars, seasons and the
actions of both mortals and the deities and the king had to proclaim that he speaks for maat
shows that the concept of Maat has apects of natural law.
Natural alw emanates from a source that is seen as extra human, and similarly maat is seen as
a goddess and spirit in which justice was applied rather than the detailed legalistic exposition
of rules.
Natural law is related to morality and in nthe concept of Maat this is seenthrough the 42
negative confessions that determined whether a person lived in accordance with what was
considered moral.

The doctrine of Maat is represented in the declarations to Rekhti-merti-f-ent-Maat and the 42

Negative Confessions listed in the Papyrus of Ani.
1. I have not committed sin. 11. I have not committed adultery,
2. I have not committed robbery I have not lain with men.
with violence. 12. I have made none to weep.
3. I have not stolen. 13. I have not eaten the heart [i.e.,
4. I have not slain men and I have not grieved uselessly, or
women. felt remorse].
5. I have not stolen grain. 14. I have not attacked any man.
6. I have not purloined offerings. 15. I am not a man of deceit.
7. I have not stolen the property 16. I have not stolen cultivated
of the gods. land.
8. I have not uttered lies. 17. I have not been an
9. I have not carried away food. eavesdropper.
10. I have not uttered curses. 18. I have slandered [no man].
19. I have not been angry without 33. I have wronged none, I have
just cause. done no evil.
20. I have not debauched the wife 34. I have not worked witchcraft
of any man. against the King (or
21. I have not debauched the wife blasphemed against the King).
of [any] man. (repeats the 35. I have never stopped [the flow
previous affirmation but of] water.
addressed to a different god). 36. I have never raised my voice
22. I have not polluted myself. (spoken arrogantly, or in
23. I have terrorized none. anger).
24. I have not transgressed [the 37. I have not cursed (or
Law]. blasphemed) God.
25. I have not been wroth. 38. I have not acted with evil rage.
26. I have not shut my ears to the 39. I have not stolen the bread of
words of truth. the gods.
27. I have not blasphemed. 40. I have not carried away the
28. I am not a man of violence. khenfu cakes from the spirits
29. I am not a stirrer up of strife of the dead.
(or a disturber of the peace). 41. I have not snatched away the
30. I have not acted (or judged) bread of the child, nor treated
with undue haste. with contempt the god of my
31. I have not pried into matters. city.
32. I have not multiplied my words 42. I have not slain the cattle
in speaking. belonging to the god

ANCIENT PERIOD
The origins of natural law can be traced to the Greek and Roman societies during this period.
Natural law in the Greek society was said to be discoverable by reason and to govern nature.
This can be seen in the ideas of certain philosophers.
Socrates;
He lived between (470-399) during the classical period of Greece. He was a great admirer of
moral values. To him, human insight was the major source of law, insight was virtous, and
virtue was a source of knowledge.
He recognised individual justice, where by a person‘s soul is the epitome of widom, courage
and moderation of justice in alliance with reason.
He believed in positive justice, meaning that justice was intimately associated with fairness.
Socrates was of the view that people should be treated according to the law and not the
desires of the leaders.
He distinguished between natural justice and legal justice. Whereas the former was
unchanging, the latter varied over time.
Plato;
He lived between 423-347 BC. He never had an explicit theory of natural law but this could
be gathered from his writings,
According to Plato we in an orderly universe and at the basis of the orderly universe or nature
are the forms, most fundamentally the form of good.
In his writings the Republic he writes about his ideal community which is a city established
in accordance with nature. He puts in place an extra human source of law in form of the
mystery locked up in the philosopher king‘s heart.
The inequality at the time is shown in his phrase, ―the lesser mortals‖ implying that some
people were more of mortals than others in society or in the community.
Aristotle;
He lived between 384-322 BC. Certain authors believe that his association with natural law
maybe due to the interpretation given to his works by Thomas Aquinas.
According to Aristotle, natural law is justice recognised and admitted without any formal or
conventional declaration resulting from the nature of our being. He is trying to say that there
is law that is not manmade, that no one has declared officially for the public as the legislature
would do in case of statute today. He talks about the law resulting from the nature of being.
He goes on to talk about natural justice, whose rules Socrates says are uniformly applicable to
all places, as being a scheme of distributive and corrective justice which would be established
under the best political community were this to take the form of law, this would be called
natural law.
That what the law commanded varied from place to place but what was by nature should be
the same everywhere. In the Rhetoric, Aristotle notes that aside from particular laws that each
people has set up for itself, there is a common law that is according to nature. He goes on to
describe this law of nature as being universal law.
Aristotle was trying to justify the discrimination during that period by saying that if you are
born a slave or a woman the way they are treated is natural and not discrimination.
The Stoics
The development of natural law theory continued in the Hellenistic school of philosophy
particularly with the stoics. They pointed to the existence of a rational and purposeful order to
the universe. This means by which a rational being lived in accordance with this cosmic order
was considered natural law.
These equated nature with reason. Stoic philosophy envisaged a world order of the Greek
society and they talked about living according to nature or reason.
Unlike Aristotle‘s higher law, stoic natural law was indifferent to the divine or natural source
of that law. Stoic philosophy was very influential with roman jurists such as Cicero, thus
playing a significant role in the development of the Roman legal theory.
NOTE; nature at this time did not mean equality. Greek society was an unequal society as
comparing it with today, there are class differences. This society could not bring the
conception of human rights,
Natural law of the Greeks justified inequality, use of force/domination. People were naturally
slaves, philosopher, kings were naturally entitled to rule. Aristotle justified slavery. That
those incapable of governing themselves had to be ruled. ―others are born in slavery, others in
liberty.‖

ROMAN NATURAL LAW

The period during the Roman Republic was characterised by two major legal developments
to govern relationships between people in Rome at the time. These included the jus civile and
jus gentium.
Jus civile was the Roman civil law which applied exclusively to roman citizens. The
institution of slavery ws the major characteristic of the Roman society and it defined one‘s
status in society. People were classified as either slave masters and they would in essence
have privileges or slaves who were less orivileged.
On the other hand jus gentium meant the law of nations. It was developed during the 3rd
century by the Romans to apply to relations between them and foreigners. It can thus be said
that the jus gentium was the law that governed transactions between the citizens and aliens
contrary to the jus civile which exclusively applied to Roman citizens. The Romans inherited
the aspect of jus gentium from the Greek‘s stoics.
When the Roman empire began to expand, it necessitated a situation which led to conflict
between citizens and aliens. This led to the use of the jus gentium- a law that went beyond
citizens, that was of universal application. This system of law was mainly adopted because of
the expansion of the empire when Rome began to acquire provinces so that provincial
governors could administer justice to the peregrine (foreigners).
As the distinction between jus civile and jus gentium lost material basis, aspects of Roman
natural law came into play. The lead jurist of this time is Cicero.

Cicero, 107 BC – 43 BC
Cicero‟s ideas were greatly influenced by the writings of Plato, Aristotle and the Stoics and
thus became acquainted early with the subject of natural law. He has thus become the chief
source of Roman theory of the law of nature.
Writing in De Legibus, he states;
 Neither senate nor people can free human beings from natural law.
 True law is right reason in agreement with nature. It is of universal application,
unchanging and everlasting
 ….and there will not be difference in laws in Rome and Athens: or different law now
and in the future but one eternal and unchangeable law will be valid for all nations
and all times. And there will be one master and ruler that is God over us all, for he is
the author of this law, its promulgator and its enforcing judge. Whoever is
disobedient is either freeing himself and denying his human nature. And by reason
of this very fact, he will suffer the worst penalties, even if he escape what is commonly
considered the worst punishment.
 It summons to be by its commands and abide by wrong doing by prohibitions. It is a
sin to try to alter this law. Nor is it allowable to repeal any part of it and it is
impossible to abolish it entirely‟
 Cicero followed some of the earlier writers such as Aristotle who had raised similar
ideas in the Nicomacheaus ethics.
 He defined natural law as right reason in agreement with nature. He was the first
natural lawyer to contend striking down of the positive law which contravened natural
law.

 However, the most important natural law philosophy that was and is very influential
arose in the mediaeval period.
Medieval Period or Middle Ages
 The catholic church dominated philosophical thought
 Two principles dominated social, political and philosophical thought
1) Unity derived from God- unity of one faith, one church and one empire
2) The supremacy of the law- This referred not simply to man-made law but
rather to law as part of the unity of the universe itself.
 Until the period of Thomas Aquinas (1224-1274) in the13th Century, Christian
thought was dominated by the notion that law, human existence and government were
alluded in the original sin.

THOMAS AQUINAS 1225-1274

Aquinas in his book Summa Theologica, lays down the major principles of his idea of natural
law as follows.
There were four types of law according to Aquinas:
(I) Eternal Law
(II) Divine Law
(III) Natural Law
(IV) Human Law
Eternal Law: laws of the universe --- "the whole community of the universe" is governed by
God who "is not subject to time but is eternal―
Divine Law: the revealed word of God (revelation) --- we need to be guided to our
'supernatural end," our reason being inadequate to reveal it to us. This is a law given
by God.
Natural Law: eternal law as it applies to us, which we know by reason: "The natural law is
promulgated by the very fact that God instilled it into men's minds so as to be known by them
naturally"
(IV) Human Law: created by us for the purpose of implementing natural law
 Law is a rule or a measure of action in virtue of which one is expected to perform his
action and is restrained from the performance of others.
 By law one is bound to certain courses of action- but since the rule of measure of
human action is reason, reason is the first principle of human action
Law strictly understood has as its first and principle object – the ordering of the common
good. But to order for the affairs for the common good is the task either of the whole
community or one person who represents it
 Thus, the promulgation of law is the business of either the whole community or of
that political person whose duty is the care of the common good.
 Accordingly, law may be defined as nothing else other than the rational ordering
of things which concern the common good promulgated by whoever is charged
with the care of the community.
 Law is nothing else but a certain dictate of the practical reason „in the prince‟ who
rules a perfect community. It is clear however supposing the world to be governed by
divine providence that the whole community of the universe is governed by the divine
reason. Thus the rational guidance of created things on the part of God as the prince
of the universe has the quality of law. This we can call the eternal law.
 All that is in things created by God is subject to eternal law. Eternal law is nothing
else than the type of divine wisdom as directing all actions and movements.
 Natural law comes from eternal law and divine law, was the law of God revealed in
the scriptures.
It is clear that all things which are subject to divine providence are measured and regulated
by the eternal law. It is clear, that all things participated to some degree in the eternal law, in
so far as they derive from it certain inclinations to those actions and aims which are proper
to them
 Rational creatures are subject to divine providence in a very special way- being
themselves made to participate in providence itself in that they control their own
actions and the actions of others. So they have a certain share in a divine reason itself
deriving there from a natural inclination, since actions and ends are fitting. This
participation in the eternal law by rational creatures is called natural law.
 The first principle of practical reason is one founded on the notion of good, viz, that
good is that which all things seek after. The first precept of law is that good is to be
done and pursued and evil is to be avoided. All other precepts of natural law are based
on this.‖
 Natural law is the same for all.
 To the natural law belongs everything to which a man is inclined according to his
nature.
 All acts of virtue are prescribed by the natural law, since each one‟s reason dictates
to him to act virtuously.
 Just as in a speculative reason, we proceed from indemonstrable principles naturally
known to the conclusions of various sciences.
 Such conclusions not being innate (not inborn) but arrived at by use of reason.
 Equally, the human reason has to proceed from the base of natural law, as though
from certain common and indemonstrable principles to other particular dispositions ―
 Such particular dispositions are often arrived at by an effort of reason and called
human laws on the basis of eternal, divine and natural law. Any valid law must be just
or expound justice.
Followed Augustine who said there is no law unless it is just law. He argued that a validity of
law depended on its justice
In human affairs, a thing is said to be just when it upholds a right with a rule of reason and
the first rule of reason is natural law, thus, all humanly enacted laws are in accord with
reason to the extent that they derive from the natural law and if a human law is at variance in
any particular way with the natural law, it is no longer law but rather a corruption of law
 On civil disobedience and on the right to resist and over throw a tyrannical
government he argued that such a government was an unjust government because it
directed not to the common welfare but to the private benefit of the ruler-
consequently, over throwing such a government is not strictly sedition (treason)
except when the over throw is accompanied by such disorder that the community
suffers greater harm than continuing with the former rule.
 Aquinas also argued that a man is bound to obey secular rules only to the extent that
the order of justice requires.
 If such rules have no just title to power but have usurped it or if they command things
to be done which are unjust, their subjects are not obliged to obey them except in
special cases, where it is a matter of avoiding scandal or great danger
 In summary therefore, according to Aquinas: hierarchy of law, divine and eternal law
are ordained by God, they are superior to both natural law and human law. The
rational behaviour of human beings which agrees with eternal law or divine reason
and providence is an expression of natural law and this could be said to be natural law
morality.
 Accordingly, law made by governments or rules that agree with right reason are
ultimately derived from eternal law and if any human law deviates from reason, it is
an unjust law and has no quality of law.
 Over throwing the tyrannical government or legal order is therefore seen as a way of
re-asserting natural law which is law that is just.

NOTE;. Aquinas wrote in the ruins of the Roman Empire, in the dark ages. He arises in a
very different period. He recognised human institutions and their place and recognised
human law unlike St. Augustine who had condemned human institutions and human law
and dismissed them as sinful.
St. Thomas Aquinas was a theologian during the feudal era, when the church was competing
with the monarchy for power and land. According to Aquinas‘ hierarchy of law he subjected
state law to eternal law ordained by God and applied by churches. Kings were made by God
and the Pope exerted a lot of influence during the feudal era.

The feudal era was unitary but decentralised. Feudal society was very hierarchical and was
dependent on status. Power depended on land ownership. The church was the big owner of
the land hence enjoyed a strong economy. European monarchs owed allegiance to Rome for
example it was the pope who crowned kings.

The church had a lot of power over medieval theory knowledge. Education was run by
monasteries and the church had monopoly over theory and knowledge. All knowledge was
thought in the context of theology.
St. Thomas‘ hierarchy reflects feudal hierarchy and secular power was below the church.

He also believed in the Teleology-the final end-to attain good. He states that ―since every part
bears the same relation to the whole as a perfect being and to the imperfect and since one man
is part of that perfect whole, the law must have as its proper object, the well being of the
whole.‖

The church was interested in the status quo. So Thomas was to justify the status quo.
He talks about first and secondary principles which enable one to derive the content of
natural law. That‘s why the 20th Century Thomist thought thinks of natural law with a
changing application. He says, ―private possessions and servitude were imposed by nature.
They are adaptations of human reason in the interest of human life and live in this case,
natural law is not altered but added to.

The Renaissance, reformation and Counter Reformation

 The Renaissance period falls between the 14th -17th century in Europe which is a
period between the medieval and enlightenment period (17th and 18th century).
 The enlightenment period made emphasis on the individual free will and human
liberty rejecting the universal collective society of medieval Europe in favour of
independent nation states.
 Where the reformation in the Christian church took place, separate national churches
were founded as in Germany and UK against what was called the Universal catholic
Church .
 In general, thought begun to be more secular, the Catholic Church reacted to this
challenge with the counter- reformation and tried to re-assert its authority.
 The sixteenth century also saw the revival of Thomism, a revival of crucial
importance for the development of the modern natural law theory of the state.
Natural Law And The Social Contract Theory
During the Renaissance period, the nature and meaning of natural law changes. This change
was affected by among others, by the coordinators of the concept of social contract.
The social contract ideologies that we associate with Hobbes, Locke and Rousseau can also
be traced to sixteenth century Thomist thought.
The concept of consent was invoked to explain how it is possible for a free individual to
become the subject of a legitimate state.
The "social contract" is a wholly formal and analytic construct that can be used as a means of
presenting conflicting political ideals. In Hobbes (or Bodin or Grotius) it is used in defence of
absolutism; in Locke in support of limited constitutionalism. Though explicitly rejected by
Hume and Bentham, many liberal theorists continue to emphasise it either in terms of consent
theory or as in Rawl's theory of justice, as something close to traditional notions of social
contract.

HUGO GROTIUS (1583-1645)

 Inaugurated a new and modern era in natural law thinking. He said, natural law could
exist even if God did not exist.
 Shifted emphasis against the natural law reason of man. His main concern was to
establish a system of international law to regulate the affairs of the rising natural
states.
 A pre-condition for such a system was a stable orderly government within nations. He
therefore saw government as resting on a social contract with the people surrendering
their freedom for security.
 According to him: the people did not have a right to reject the sovereign, however
unjust the laws may be.
 However, his argument was complicated and contradicted by his proposal that the
sovereign was also bound by natural law.
His major contribution to natural law was therefore, this concept of the social contract
 According to the social contract theory: morality consists in the set of rules, governing
how people are to treat one another. That rational people will agree to accept, for their
mutual benefit, on the condition that others follow those rules as well
 According to Grotius a social contract is necessary: internally for the justification of
the absolute duty of obedience of the people to the government; and internationally to
create a basis for legally binding and stable relations among the states.
 Without prejudice, it can be asserted that there was nothing revolutionary about
Grotius‘ definition of natural law as some of his ideas had already been enunciated by
Robert Bellarmine.
THOMAS HOBBES, (1588-1679)
The context of natural law changed with time. In the 17th century when the church influence
had waned and the states had become stronger Thomas Hobbes developed the concept of
social contract.
Earlier natural law thinkers had seen the natural law in terms of duties imposed on man, a
pattern to which he had to conform. In Hobbes, there is the germ of a concept of natural
rights, the idea that man may make certain legitimate demands on his fellow man.
 He argued that the core of social contract, man lives in a state of nature which was:
….a war of every man against every man. It was a condition of eternal strife in which the life
of man was solitary, nasty, brutish and short.
Because self preservation is the greatest lesson of natural law, law and government became
necessary as a means of creating order and personal security. Thus for each citizen to
preserve his own life, they must give absolute and unconditional obedience to the law.
Hobbes‘ idea of law was set out in his 1651 book Leviathan- he argues that the social
contract exists between the subjects inter se and not between the subjects and the ruler-
because of this the ruler is the absolute repository of rights, duties, and values of his people
which they pass on to him on entering the contract. The Hobbesian sovereign is therefore not
bound to take into account the interests of the people. Similarly, the law was divorced from
such concerns like the interests of the people and morals for that matter.
In the Hobbesian understanding of social contract, people come together to form a civil
society (punctum unionis) and enter into another contract (puctum subjectionis) to make the
revivum. Under Punctum unionis the people agree to come together and under puctum
subjectionis the people surrender their freedom to the superior.
Hobbes emphasised the absolute nature of the sovereign‘s powers. The people give away
their sovereignty through the social contract (revivum). After this, surrender to the sovereign
who is at liberty to do as he deems fit.
Hobbes argued that since man is basically selfish, aggressive but prefers peace, they must
transfer all power to one man or a group – leviathans who was to use the power to promote
peace and security for all. He claimed all commands of the sovereign are right and therefore
there is nothing like unjust laws since the sovereign is important.
To him, there is no contract between the state and the leader. The ruler was not bound to take
into account the people‘s interests. The Leviathan has all powers to handle the people as he
wants. The only escape is when he dies; to him the Leviathan without power is useless.
To Hobbes because man is in a state of nature he cannot live because he fears to die, they
must come together because of this fear. Also because of this fear, they come to the leviathan,
so there is no contract with the leviathan. There is no government for the people but the
government of the leviathan by the leviathan for the good of the people.
His view of law encouraged absolutism and dictatorship. Hobbes‘s concept of law was
during the rise of capitalism when the rising bourgeoisies were threatening the authority of
the monarchy and the state. He used the social contract to justify the status quo in Europe
which had at the time seen a collapse in the feudal hierarchy and had been replaced by the
absolute monarchy.
 His intention was to rule out the legitimacy of civil rebellion and thus eliminate the
possibility of civil war which he regarded as the greatest of evils
 Thomas Hobbes therefore, as Grotius, used social contract to justify authoritarian
government.
His main contribution, in terms of natural law, was the idea of man‘s right and interest in self
preservation as demanded by natural law or law of nature. ―the fundamental law of nature is
to seek peace and follow it. it is necessary that man lays down his right to all things and be
contented with so much liberty against other men as he would allow other men against
himself.‖
Hobbes‘ ideas were to later influence the classical positivist theory of John Austin in which
law is separate from morals-the Hobbesian theory also defined the character of the absolute
monarchies that existed in Europe between the 17th and 18th centuries.
.

REVOLUTIONARY NATURAL LAW

JOHN LOCKE, (1632-1704)
 Was another contributor to the concept of social contract
 Locke writing in Treatise of Government in 1682 was concerned with discovering the
links between the ruled and the rulers. But unlike Hobbes he emphasises the rights of
the individual especially where the sovereign fails to carry out his duties.
 He used the ideas of social contract to construct a natural rights doctrine.
 He defined a natural law as one which is not laid down by anyone but simply arises
out of the nature of things and a positive law as one that some legislator imposes.
 Locke‘s state of nature; men are naturally in a state where they are perfectly free to
order their actions and dispose of their possessions and themselves in any way they
like without asking anyone‘s permission-subject only to limits set by law of nature.
 In this state all men are equal, and this state is based on justice and charity. (Richard
 The state of nature is governed by a law that creates obligations for everyone. And
reason, which is that law teaches anyone who takes trouble to consult it that ‗because
we are all equal and independent, no one ought to harm anyone else in his life,
health, liberty or possessions. This is because; we are all the work of one omnipotent
and infinitely wise maker, we are all servants of one sovereign master sent into the
world by his order to do his business, we are all the property of him who made us and
he made us to last as long as he chooses not as long as we choose and we have the
same abilities and share in the one common nature.
 A state of nature involves men living together according to reason, with no one on
earth who stands above them both and has authority to judge between them.
 On the law of nature; it is certain that there is a law of nature which is as intelligible
and plain to a reasonable person who studies it as are the positive laws of common
wealth, as much plainer as reason is plainer, easier to understand than the fancies and
intricate theoretical contrivances of men who have tried to find words that will further
their conflicting hidden interests;
 Law of countries are right only to the extent that they are founded on the law of nature
which is the standard by which they should be applied and interpreted.
 The law of nature should be obeyed. The enforcement of that law of nature is in every
man‘s hands so that everyone has a right to punish law breakers to hinder the
violation of the law.
 By breaking the law of nature, the offender declares himself to live by some ruler
other than that of reason and common fairness (which is the standard that God has set
for the actions of men, for their mutual security.) therefore every man has a right to
enforce the law of nature and punish offenders
 The purpose of government therefore was to protect human entitlements.
 According to Locke, its reason that distinguishes man from beast and its reason that
God wills men to follow. Reasons apply to answers where God‘s will is not clear.
 According to him, God‘s requirement for all men in a state of nature is that they live
in accordance with the law of nature.
 Like Aquinas, Locke argues that reason enables every man to grasp the content of this
law. In a state of nature man‘s duties and under natural law are matched by these
rights under the same law.
 The most important duty was to hold other men responsible for breaches of that
natural law. Every person, should do this- but by joining civil society, every person
abandoned those powers and rights to the sovereign.
 According to Locke, the state of nature that preceded the social contract was not like
Hobbes argument but rather a golden age, a paradise, except that in it, property was
insecure.
 In order to remedy this situation, man renounces his otherwise perfect law conditions
and by contract give up his liberty to the sovereign.
How does man give up such liberty?
Locke argued that;
 ―…no man can be subjected to the political power of another without his consent‖
 The consent of the people is the only lawful basis for government. According to
Locke, there are two types of consent to the sovereign power; that is implicit and
explicit.
 Explicit consent made a man a full member of his society while implicit consent made
him subject to the laws of the state but did not give him either full membership or the
rights and above all the rights of political choice which followed from such
membership.
 Furthermore that, in the same manner obedience to authority is legitimised by
voluntary submission to those in authority.
 Apart from the idea of the social contract, Locke also developed the concept of ‗trust‘
namely that men put their trust in the sovereign and the sovereign who betrayed this
trust could be overthrown.
 To rebel without just cause, was itself unjust but Locke approved rebellion against
tyranny because such rebellion was not revenge but rather ‗an act of restoration‘ , the
reparation of a violated political order‘
 He argued that man gave up his liberty in order to secure his property. His starting
point was that the earth belonged to God who had given it to human beings to enjoy it
and it was God and not the sovereign who gave men title to the fruits of their labour.
 To him the duty of the ruler was to provide protection against the conditions that
precipitated the making of the social contract. The ruled were obligated to be
obedient.
 Locke stressed individual rights especially when the sovereign failed to fulfil the
contract. He insisted that the trust enjoyed by the ruler would be forfeited where there
was a failure to protect the subjects.
 He also emphasised the concept of the inalienable rights. He argued that where the
ruler ignores man‘s inalienable right to the preservation of life, that such a ruler ought
not to be obeyed.
 Furthermore, the ruler was therefore under a duty to protect rights which God had
bestowed to mankind. He therefore defended the faradize resting on the ownership of
property. He was able to refute claims such as Charles I had made that rulers could
dispose of their subjects' property without their consent for the public good
Unlike Hobbes, to Locke the people consent but remain sovereign. Authority was derived
from and ended with the chief aim of political society namely; the preservation of property.
Locke wrote Two Treatises to proclaim a right of revolution but he was not an enemy of
political authority. He saw it as a human good. Rulers had the right to rule, to use their
political power for the public good. But all men had the right to resist that ruler, even of a
legitimate political society, where he manifestly abuses his power. Central to Locke's
conception of Government was the idea of trust. There is a conceptual shift here from
contract to fiduciary relationship. Whereas the concept of contract emphasises the conduct of
individual citizens, that of trust stresses the conduct of rulers. Men put their trust in the
sovereign. A ruler who betrays this trust may be overthrown. He puts himself into a state of
war with his subjects and each of these has the same right to resist him as any other unjust
aggressor.

To disturb government was for Locke a breach of the law of nature; to rebel without just
cause was thus in itself unjust. But when the oppressed people resist tyranny it is not they
who disturb government or bring back the state of war. Rebellion is an Opposition not to
persons, but authority'. A tyrant has no authority. It is tyrants who are the true rebels. Tyrants
were like beasts, noxious brutes and the right to destroy such vermin was the right of every
human being. However, revolution is not t be seen as an act of revenge rather an act of
restoration of the recreation of a violated political order.
Locke used the theory to support the rising mercantile capitalism, though he defended the
right to physical existence he also advocated for the protection of property, which is an
essential facet of capitalism. His was therefore a rudimentary theory in defence of basic
human rights

NOTE; John Locke incorporated natural law into many of his theories and philosophy,
especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying
that if the ruler went against natural law and failed to protect "life, liberty, and property,"
people could justifiably overthrow the existing state and create a new one.

While Locke spoke in the language of natural law, the content of this law was by and large
protective of natural rights, and it was this language that later liberal thinkers preferred.
Locke derived the concept of basic human equality, including the equality of the sexes
("Adam and Eve"), from Genesis 1, 26–28, the starting-point of the theological doctrine of
Imago Dei. One of the consequences is that as all humans are created equally free,
governments need the consent of the governed. Thomas Jefferson, arguably echoing Locke,
appealed to unalienable rights in the Declaration of Independence, "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 Lockean idea that governments need the consent of the governed was also fundamental
to the Declaration of Independence, as the American Revolutionaries used it as justification
for their separation from the British crown

Locke claims in the "Preface" to the Two Treatises that its purpose is to justify William III's
ascension to the throne. While it was once thought that Locke wrote the Treatises to defend
the Glorious Revolution of 1688, recent scholarship has shown that the work was composed
well before this date. The work is now viewed as a more general argument against absolute
monarchy (particularly as espoused byThomas Hobbes) and for individual consent as the
basis of political legitimacy. Although Locke was associated with the influential Whigs, his
ideas about natural rights and government are today considered quite revolutionary for that
period in English history.
It is suggested that the works were instead better associated with the revolutionary
conspiracies that swirled around what would come to be known as the Rye House Plot. Locke
fled to the Netherlands in 1683, under strong suspicion of involvement in the Rye House Plot
Locke, Shaftesbury and many others were forced into exile; some, such as Sidney, were even
executed for treason. That‘s why it‘s not surprising that his work is regarded as revolutionary.

JEAN-JACQUES ROUSSEAU (1712-1788)

The Social Contract approach to natural law culminated in the writing of Rousseau.
Rousseaus's state of nature is closer to Locke's than Hobbes' though without Locke's
emphasis on the sanctity of property. Rousseau was of course critical of the theories of
legislative representation accepted by Hobbes and Locke and of actual English political
experience. "the people of England regards itself as free; but it grossly mistaken; it is free
only during the election of members of parliament. as soon as they are elected, the slavery
overtakes it and it is nothing" he argued that every law the people has not ratified in person is
null and void-is in fact not law
 According to Rousseau- the social contract was a mystical construct by which the
individual merges into the community and becomes part of the ―general will‖
 He argued therefore that people ideally should govern themselves but since this was
not practically possible, there was need for specialisation and therefore a need for an
―elective aristocracy‖
He further argued that the law is the ―register of the general will‖- accordingly governments
could only be tolerated as long as they reflected the ‗general will
 He insisted that whoever refused to obey the general will should be compelled to do
so by the general body- ‗he will be forced to be free‘
 Rousseau favoured the direct citizen participation arguing that, ―every law that people
have not ratified in person is null and void and in fact not law‖
 To him a contract prevails when the people‘s general will prevails, this same will is
thus the basis of the government. Anybody who performs sovereignty without the
consent of the people is a violator of the law. This is because the people‘s right of
sovereignty must never be surrendered.
 The link between Rousseau‘s theory and natural law, apart from the general concept
of the social contract was his idea of the ―general will‖ which seems to replace the
higher law standard that natural law typically represented.
Rousseau‘s state of nature; ― the state of nature is a state which exists no longer, which
perharps never existed, which probably will never exist. Let us begin by disregarding all
facts, for they have no bearing on the question. No investigations of the matter are
hypothetical, conditional speculations more likely to shed light on the nature of things than to
reveal their actual origin.‖
Analysis of the above philosophers;
It must be noted from the above discussion that Thomas Hobbes, Jean Jacques Rousseau and
John Locke were the major proponents of the social contract theory of law. At the root of this
theory is the idea that according to law, no man can be subjected to the political power of
another without his own consent. And that obedience to authority is legitimised by voluntary
submission to those in authority. they argued that in accordance with the law of nature and
natural law; man must move from a state of nature into society with others and so doing
concludes a social compact/contract. However there are contradictions in this theory.
Hobbes‘ idea of law was set out in his 1651 book Leviathan- he argues that the social
contract exists between the subjects inter se and not between the subjects and the ruler-
because of this the ruler is the absolute repository of rights, duties, and values of his people
which they pass on to him on entering the contract.
The Hobbesian sovereign is therefore not bound to take into account the interests of the
people. Similarly, the law was divorced from such concerns like the interests of the people
and morals for that matter. Hobbes‘ ideas were to later influence the classical positivist
theory of John Austin in which law is separate from morals-the Hobbesian theory also
defined the character of the absolute monarchies that existed in Europe between the 17th and
18th centuries.
On the other hand Locke‘s idea of social contract was evidenced in his 1682 work the
Treatise of Government- his view differed from that of Hobbes in that he stated that there
existed an actual contract between the subjects and the ruler in which the latter had to
guarantee the rights of the former. In considering the various political and democratic rights
to be protected, Locke advanced property rights as also warranting protection-his ideas on
property are not only capitalistic in nature but they actually influenced the Whig Revolution of
1688 and the outgrowth of concerns with the protection of economic interests in the shape of
guilds, trade unions, these social contract ideas were precursors to the capitalist system in
England.
Jean Jacques Rousseau‘s ideas were contained in The Social Contract (1762)-His theory was
similar to that of Locke although Rousseau placed much more emphasis on the social contract
as defining the General Will as the basis of government. His theory is the foundation of
modern (natural ideas) of the will of the people as the basis of government and participatory
and representative democracy (sovereignty of the people). Rousseau‘s ideas were to later
influence the French Revolution of 1789 and the subsequent declaration of rights of man-
these ideas were exported to America as seen in the Vattelian Ideas and the American
Declaration of Independence of 1776.
The contradiction in the theory relate to the various ways different theorists have dealt with
the parties to the contract. Note the way the various theorists deal with the question of
relations between the ruler and the ruled, for instance Hobbes views the contract entered as
between the people inter-se and not with the ruler, while Locke talks of an actual contract
where the ruler guarantees the rights of the ruled. Rousseau introduces the concept of the will
of the people as being the basis of the social contract.
It is suffice to note that this contradiction is also manifest in the fact that the social contract
theory can be used to support two diametrically opposed forms of government. Locke and
Rousseau use it to support democratic government while Hobbes uses it to support
absolutism.
The contradictory nature of the social contract theory is also manifest in the fact that the
central tenets of the theory as per the various theorists are somewhat ambiguous, for instance
at what point does man move from a state of nature to society? How is the general will of the
people measured?
Critics of the theory have argued that the theory was developed to justify the rise of the
modern capitalist state in Europe. There is credit to this criticism if the theory as propounded
by Locke and Rousseau is analysed. Locke and Rousseau propounded their view to challenge
absolute monarchy and justify the rise of modern capitalists (the bourgeoisie). they used
natural law to challenge the status quo and justified the revolutions.
The views of Locke and Rousseau were in resonance with the demands of the middle
class/nascent capitalist (bourgeoisie) and not the aristocrats who were ruling at the time. For
example Locke advanced the property rights as one of the primary rights requiring protection.

Indeed their views were to later influence revolutions against absolutism across Europe, for
instance the Locke‘s ideas on property rights are attributed to have influenced the Whig
Revolution of 1688 in England and the outgrowth of concerns with protection of economic
interests in the shape of guilds, trade unions etc. These later found their way into the law
books and were later on to lay the foundation for the capitalist state in England. Thomas
Jefferson, arguably echoing Locke, appealed to unalienable rights in the Declaration of
Independence, "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 Lockean idea that governments need the consent
of the governed was also fundamental to the Declaration of Independence, as the American
Revolutionaries used it as justification for their separation from the British crown

The teachings of Rousseau were one of those factors that influenced the French Revolution of
1789 and its resultant Declaration of the Rights of Man and the Citizen of 1791 and 195 that
brought an end to absolutism in France. Moreover these ideas were exported to other parts of
the world like the USA resulting in the American Declaration of Independence in 1776.
On the other hand Hobbes used the theory to justify the status quo. Hobbes‘ idea of law
propounds that the social contract exists between the subjects inter-se and not between the
subjects and the ruler and the ruler is the absolute repository of rights, duties and values of his
people which they pass onto him on entering the contract to guarantee their safety in state of
war but who is not bound to take into account the interests of the people. This position
justified absolute monarchism that existed in Europe at the time and cannot be said to justify
the rise of the capitalist state in Europe (this was the work of Locke).
In Ugandan context, read Article 1 in support of Rousseau‘s general will principle, Article 3
and Article 20 about Locke‘s concept of inalienable rights. These concepts have been
advanced in support of revolutions and challenging absolutism.
The idea of the social contract dominated the 17th and part of the 18th century political
philosophy in Europe. It was replaced by other concepts in the 19th and 20th century- where
it persisted, it came to be looked at different with the rise of modern capitalism in the 19th
century.
When positivism comes in the late 19th century, it is generally reacting to natural law
especially to Rousseau and Locke‘s Natural Law. This is because the bourgeoisie have
established themselves in power and such capitalists cannot support this natural law (based
on the general will and inalienable rights) because it s destabilising. To date however, the
theory is still important in consideration of the development of popular democratic
governments, and of appropriate laws. Also the modern concept of inalienable human rights
is founded on the teachings of Locke, Rousseau and Hobbes. These began the natural rights
movement.

REVIVAL OF NATURAL LAW ( 20th Century)

John Finnis 1940 –
Finnis in his bok Natural law and Natural Rights tried to revive and restate natural law
concepts. According to Finnnis natural law is the set of principles of practical reasonableness
in ordering human life and human community.
In his case he identified 7 basic goals or values which every reasonable person must assert for
purposes of human survival. They include;
1. Life –which must be protected
2. Knowledge or the preference of truth over falsehood
3. Friendship and Sociability or acting for the sake of one‘s friends or other people.
4. Play; by which he meant love for arts.
5. Aesthetic Experience for the appreciation of beauty.
6. Practical Reasonableness that is applying one‘s intelligence or knowledge to
effectively deal with social problems
7. Religion. By this he meant interest in the origin and meaning or purpose of life which
if expressed this way would even be acceptable to atheists.
 These basic goods serve as an explanation of why we do things. Any worthwhile
activity is worth doing because it participates in one or more basic goods
 Law is a morally necessary component of society.
 Finnis agrees with Lon Fuller‘s eight requirements of ‗the inner morality of law‘

Law should be
 Prospective, not retroactive
 Possible to comply with
 Promulgated
 Clear
 Coherent
 Stable enough that people can use the law as a guide
 The making of new laws should be guided effectively within the legal system
 People in authority should be: accountable; consistent and acting in good faith

on the moral obligation to obey the law

 I ought to pursue the basic goods
 Society needs to coordinate in order to best achieve the basic goods
 The law is an effective way of coordinating society
 Therefore: I ought to obey the law

Where law is against morals

 lex injusta non est lex: that morally wrong laws are not laws at all.
 If a law is immoral/unjust, there is no moral obligation to obey it. However, we still
have the legal obligation to obey the law if we want to avoid the sanction
Significance of natural law

(1) Universality and commonality in human laws and institutions and in seeking to
promote common values. In this sense natural law thinkers tend to be historical.
(2) In general, they seek to have morality and moral goals in law and in the legal system
as a whole, although they may not agree on what this means.
(3) Natural law thinkers all consider justice as important in any legal system although
they may not agree as with morality on the meaning and content of justice.
(4) They agree on the need for and understanding of the social context in which the law
operates unlike for example the positivists who have no interest at all.
It has been suggested that other theorists, philosophers and legal philosophers provide a better
understanding of the context in which the law operates e.g. Marxists school, sociological
school or feminists
 Criticism of natural law
 Its focus on content and failure to tell us what the law actually is and it has many
times been limited by the historical context in which jurists were located
 Natural law has generally supported the status quo and therefore is essentially a
conservative theory. It is only occasionally that it has been used as a revolutionary
weapon to protect the interests of an emerging social class against the interests of
social order as it happened in the struggle against foundation and French monarchy by
the 17th and 18th Century theorists
 Natural law generally assumes equality of people regardless of class, gender and
culture. It assumes that nations are equal and similar to get on both accounts, reality is
different.
 That by making such assumptions, natural law generally fails to support change
especially progressive revolutionary affairs like social, political and economic change.
POSITIVISM.

lecture notes by Joyce Kokuteta Ngaiza

The Positivist/Analytical School of Jurisprudence

Please note that like the Natural Law School(Thomas Aquinas, Hugo Grotius/Huig de
Groot/, and Lon Fuller), Positivism is a very long topic. It is likely to straddle the entire
Semester I. Part of it, The Pure Theory of Law by Hans Kelsen will be covered by Prof. J. J.
Barya.

Sample Test Questions

1. Critically examine the statement that ―Law is the command of the sovereign‖ and
state whether this concept applies to Ugandan Judicial system?

2. Discuss the analytical school of jurisprudence as propounded by John Austin.

What according to you is the weakness of his imperative theory of law?

3. Discuss in brief the definition, nature scope and utility of jurisprudence.

Overview of Positivism
Positivists are known as modern thinkers and they propounded ―The Analytical School‖. This
school is also known as the scientific school and the imperative school, due to its
authoritative characteristic.

Positivism emerged as a rejection of the Natural Law theory. The most prominent positivist
thinkers are Jeremy Bentham, John Austin and Hans Kelsen who define law in the following
ways-

1. BENTHAM (1748 – 1832): He was the first theorist to analyse what is law. He divided
his study into two parts:

a. Examination of Law as it is - Expositorial Approach- Command of Sovereign.

b. Examination of Law as it ought to be - Censorial Approach- Morality of Law.

Bentham was a utilitarian, who said that law should be about promoting the greatest
good for the greatest number and that subjugation of individuals by law was for the
good of the majority and could be justified and understood/analysed that way.
Jeremy Bentham‘s view on law was informed by the laws in England in 18th century
which were not organised. The situation was anarchical, compounded by the Naturalist,
individualist choices informed by metaphysical and the idea of self-gauging
consciousness as a result of customs. Consequently, he developed ideas that law is
nothing but social happiness guaranteed by social order and protecting certain interests
socially recognized by majority as worthy of being protected.

Maximum happiness for the greatest number = Utilitarian theory. For Bentham, law is the
expression of some declarations by the political head with utility - ensuring maximum
happiness of the maximum number people in the society. Bentham‘s concept of law
revolves around individual utilitarianism. He is concerned with the theory of pain and
pleasure, which means that the purpose of law is to reduce the pain (i.e. theft or other
crime) and pleasure (maximise safety of one‘s property from thieves) in the society.
Subjugation of a few individuals such as thieves by law through punishment was for the
good of the majority and could be justified and understood/analysed that way.

He said ―Nature has placed mankind under the governance of two sovereign masters,
pain and pleasure. It is for them alone to point out what we ought to do, as well as to
determine what we shall do. On the one hand the standard of right and wrong, on the
other the chain of causes and effects, are fastened to their throne. They govern us in all
we do, in all we say, in all we think: every effort we can make to throw off our
subjection, will serve but to demonstrate and confirm it.”
 He further rejected both natural law and subjective values and replacing these by
standards based on human advantages, pleasures and satisfactions.
 He provided what may be, as many think, an insufficient substitute for ethics or
aesthetics but was at least valuable sign post by which men in society might direct the
external welfare of that society.
Bentham believed in Laissez-Faire (a policy or attitude of letting things take their own
course, without interfering) hence the antiquated legal system had been renounced,
but ironically, his emphasis on reform and social welfare had made him one of the
creators of the welfare state
 He was mainly interested in law reform and he saw a distinction between censorial
jurisprudence or the science of legislation from expository jurisprudence.
 Expository jurisprudence was concerned with law as it is without regard to its moral
or immoral character.
And to him, the science of legislation was a branch of morals, being the principles
upon which men‟s actions were to be directed only to oneself

 He was a life-long reformer but he believed just like Austin that no reform of the
substantive law could be effectuated without reform of the its form and structure.
Bentham also believed in the imperative theory of law in which the key concept are
those of sovereignty and command
 He expounded those ideas with ‗far greater subtlety and flexibility than Austin and
illuminated aspects of law that he had largely neglected.‘
For example, Austin‟s sovereign was postulated as an illimitable, indivisible entity
and for Bentham it is neither. Austin had sound practical reasons for having one
powerful sovereign, but Bentham saw it differently in terms of social desirability
and logical necessity
 Bentham argued that there is no necessity for a sovereign to be undivided and
unlimited and accepted divided and partial sovereignty
 He discussed the legal restrictions that may be imposed upon sovereign power:
“ …the business of the ordinary sort of law is to prescribe to the people what they
should do: the business of the transcendent class of laws is to prescribe to the sovereign
what he should do
 He believed that a sovereign may bind his successors explaining that
“…if by accident a sovereign should in fact come to the throne with a determination
not to adopt the covenants of his predecessors, he would be told that he had adopted
them not withstanding
 Without spelling it out, Bentham comes to close to conceptualising a doctrine of
judicial review because he did not rule out the use of legal sanctions (although that
enforcement would be extra-legal i.e. moral and religious)
 Furthermore, he thought a sovereign‘s commands would be law even if supported
only by religious and moral sanctions.
 Bentham unlike Austin, was also a conscious innovator of new forms of enquiry into
the structure of law and that he makes explicit his method and general logic enquiry
in a way in which no other writer on the topic of law and sovereignty does.
 In his definition of law , he refers to it as an expression of volition, he covers not only
general laws made by the legislatures ( supreme and subordinate) but also judicial,
administrative and even domestic order such as those given by a parent to a child,
declaratory laws are also within its ambit.
 He preferred that model of law as a tool of analysis because he argued that a statute
will usually contain parts of different laws.
 He argued that for the structure of a legal system to function well, the power of
legislation must be ―broken into shares‖
 That: thus the legislator himself is confined to enacting general laws but these may
confer mandates on individuals to legislate issues concerning individual persons or
things such as a power to appoint a judge or officials.
 However Bentham sought to bring the theory of imperation within the scope of his
general attribution of all laws to the command of sovereign, by explaining it in terms
of adaptation,that is the sovereign‘s grant of permission to issue what would
otherwise be an illegal mandate.
 As Hart points out, Bentham falls into the error of confusing illegality and invalidity,
for in a modern legal system it is validity of exercise of a legal power and not its
legality, which is all important.
 Hart argued that Bentham‘s insight of command and law can still be preserved by
relating such acts of subordinate imperation to accepted rules and procedures rather
than to sovereign command.
 He argued that a command is only one of the ‗aspects‘ which the legislator‘s will may
bear to acts concerning that which he is legislating.
 He believed that an understanding of the structure of law entails an appreciation of the
‗necessary relations‘ of ‗opposition and concomitancy‘ between the four aspects of
the legislator‘s will.
 He argued that there are no laws which are neither imperative nor non permissive. All
laws command or prohibit or permit some form of conduct.
Furthermore that, the imperative character of law is often concealed, that law is
expressed descriptively ( whoever steals shall be sentenced to 5 years of
imprisonment), or that reference to any offence or sanction is often hidden in the
course of many sentences or even pages or even volumes
 He recognized that the imperative character of law is often concealed, that law is
expressed descriptively ( whoever steals shall be sentenced to 5 years of
imprisonment), or that reference to any offence or sanction is often hidden in the
course of many sentences or even pages or even volumes.
 Bentham rejected any idea of ‗natural rights‘, his analysis left scope for values which
he sought to incorporate such as liberty, equality or property.
 He argued that duties enforced by sanctions lead to security and thereby to greater
happiness.

To him, like to Austin, obligation to obey the law equals coercion. That is, external force
(SANCTION) has to be applied for failure to obey the law.
JOHN AUSTIN: 1790-1859
Austin stuck to the idea that law is command of sovereign.
He was born in 1790. He was a professor of jurisprudence at the University of London
from 1826- 1832 and had a profound effect on British and Western jurisprudence. As a
student of Jeremy Bentham, Austin favoured Bentham‘s views on legal positivism.
Austin and Bentham felt that law was the command of the sovereign backed up by the
ability to enforce it. So the law was valid because of the threat of punishment for breach.

Law is command
Law is the command of sovereign
Command implies duty and sanctions.
The three basic points of Austin's theory of law are that:
1. The law is command issued by the uncommanded commander—the sovereign;
2. Such commands are backed by threats of sanctions; and a sovereign is one who is
habitually obeyed
3. Law is command and sanction of sovereign

Austin‘s particular theory of law is often called the ―command theory of law‖ because the
concept of command lies at is core: law is the command of the sovereign, backed by a threat
of sanction in the event of non-compliance.
Legality, on this account, is determined by the source of a norm, not the merits of its
substance (i.e it embodies a moral rule

Classical positivism unites OBLIGATION with SANCTION. Coercion is equated with

obligation. So Austin‘s view: that a person is obliged by the command of the sovereign = the
superior will punish the person if he/she does not obey. It is the external force, the fear of
punishment, which obliges a subject‘s obedience. He is considered to be the founder of the
Analytical School and the father of English Jurisprudence. The army life of strict discipline
and command had its reflection in his theory.

The Austinian Command Theory/Scheme

―Law is the command of sovereign‖
There are three elements of law according to Austin:
a) Command )
b) Duty to obey ) = LAW
c) Sanction )

According to him every law have a command and due to this command we have the duty
to obey this command and if we don‘t obey this duty then there is a sanction.
This is what we call today, the Command Theory/Command Scheme. It dominates the
discourse around Analytical Jurisprudence.

 Thus, the answer to the question ―what is law?‖ is answered by resort to facts not
value.
 According to Austin, a rule R is legally valid/a law in a society S if and only R is
commanded by the sovereign in S and is backed up with the threat of a sanction.
The relevant social fact that confers validity, on Austin's view, is promulgation by a
sovereign willing to impose a sanction for noncompliance

 If what makes a rule a legal rule is not determined by its content but by its
source, then why should we obey the law under Austin‟s account?
 The answer would be to avoid sanction - since the theory of law, under this
account, provides a reliable prediction of what will befall a person, at the hands
of those in charge, if you disobey the law.
This is largely regarded as not a particularly compelling ground upon which to build a
theory of why we have a duty to obey law

 Austin attempted to work out what he believed to be the legal and logical
implications of sovereignty as viewed by legal positivism.
 Austin sought to show what law really is, as opposed to moral or natural law
notions of what it ought to be.
 He pointed out that there is no necessary logical connection between positivism
and the command theory and it is certainly true that we are logically free to
insist on the separation of law from morals, while rejecting the command theory.
 And yet to Bentham, positivism seemed to require some simple empirical
explanation of law devoid of metaphysics or mysticism.
 He has been criticised more specially for his fundamental position on the
illimitable and indivisible nature of sovereignty or of international and
constitutional law and custom as mere positive morality.

Principles Underlying Positivism

 Law must be posited (Laid down)
Positivism comes from the Latin expression Positum. The major principle of analytical
school is to deal with law as it exists in the present form in a given legal system. The
exponents of positivism consider that the most important aspect of law is its relation to the
state. They treat law as a command, or the command of sovereign. Therefore this school also
called the imperative school. The exponents of this school neither concern with the past of the
law nor the future of the law but they confine themselves to the study of law as it actually
exists, as laid down i.e. positum. That is the reason this school also called the Positive school
of law.

 Separation of Law and Ethics (Morality)

The Separability Thesis
In dealing with the ethical scope of Jurisprudence, one interrogates the purpose of law from a
value perspective that any legislation is to set forth laws as it ought to be. This is dealing
with the ‗ideal‘ of the legal system and the purpose for which it exists.

Austin said ―the science of Jurisprudence is concerned with Positive Laws, i.e. laws strictly
so called. It has nothing to do with the goodness or badness of law. He confined his study
only to the positive law and applied analytical method for this purpose. By positive law,
Austin meant‖ law properly so-called‖ as distinguished from moral and other laws which he
described as laws improperly so called, which lack force or sanction of the State.

God law - Set by God

Human law - Set by you and me (Etiquette, using fork with the left hand), whether women
should inherit land
Positive law- Set by the State (political superior to political inferior) by political superior.
Law is therefore a creature of the State.

Austin‘s distinction between positive law and positive morality seeks to exclude the
considerations of goodness or badness in the realm of law. This is the essence of the
Separability Theory/Thesis (Separation Theory).In Austin‘s positive law there is no place for
ideal, fairness or justness in law. In his own words – the existence of law is one thing, its
merit and demerit another. Law and morality are mutually exclusive, conceptually
separable.
A law which actually exists is law, though we happen to dislike it or like it (example the
POMA). Austin law was therefore making it clear that law and morality are conceptually
separable. A positive law, as Austin has shown, must be legally binding though it may be
unjust.
Austin‘s law was logical, coercive and enforceable as distinct from law as it ought to be.

The debate about whether law is or law ought to be has existed for centuries and its legacy
can still be felt in many countries even today. The Separability Theory has endured the
following:

History
Holocaust,
Nuremberg Trials –Nuremberg trials were the trials against WWII war criminals after the
Alliance defeated the Axis nations in 1945.
Professor Lon Fuller (Natural Law theorist) maintains that law and morality cannot be so
neatly distinguished and that the post-war courts (Nuremberg and Tokyo) were entitled to
hold Nazi rules not to be law. To call the Nazi system 'legal' and to call its rules laws' was a
false description of what they were. They were instruments of an arbitrary and tyrannical
regime.

The Nazi "Grudge Informer" illustrates a fundamental difference of views about the nature
of law and its relationship with morality. It is called the ―Grudge informer‖ to cover events
where one person reported another for trivial crimes, which nevertheless carried the death
penalty (for example speaking against the Fuhrer or the government), to settle feuds or to get
revenge, but effectively using the state machinery to try to commit murder.
Fuller records the following case:After the War a German woman was prosecuted for
denouncing her husband to the authorities in accordance with the anti-sedition laws of 1934
& 1938. He had made derogatory remarks about Hitler. The husband was prosecuted and
convicted of slandering the Fuehrer, which carried the death penalty. Although sentenced to
death, the husband was not executed but was sent as a soldier to the Eastern front. He
survived the war and on his return instituted proceedings against his wife.She argued that she
had not in fact committed a crime because a court had sentenced her husband in accordance
with the law of the time (Law as is).
She was convicted of 'illegally depriving another of his freedom' (rechtswidrige
Freiheitsberaubung), a crime under the Penal Code, 1871, which had remained in force
throughout the Nazi period. The Nazi laws were, the court said, "contrary to the sound
conscience and sense of justice of all decent human beings," (1951) (morality/moral
considerations).There were other similar prosecutions.
We see resurgence to Natural Law Theory through holdings that certain rights and
obligations exist independently of the legal system and are incapable of abolition by
legislative act. The Nuremberg trials imposed upon individuals a duty to disobey laws which
are clearly recognisable as violating higher moral principles. This has become known as the
―Nuremberg principle‖. Previously, law based orders and military, orders were
sacrosanct.Obeying orders is drilled into military people. This is because others have lost
their lives in the past due to individuals disobeying orders when they have felt like it or
because they were not privy to the full intelligence/strategic picture.

Apartheid
Segregation along racial lines was a creature of law and the Constitution of South Africa.
Law as is.

Forgiveness
Truth and Reconciliation Commission in South Africa
Forgive those who own up, exempt from prosecution

Genocide against the Tutsi in Rwanda

ICTR and UN Resolution deleting the sanction of death faced by Génocidaires/Interahamwe

Abolish the death penalty

Rwanda did this to align to international demands to gain a more positive and effective
international community action against suspected Génocidaires/ Interahamwe outside of its
territory.

Prosecutor vs. Jean Paul AkayesuCase No. ICTR-96-4-T, Judgment (September 2, 1998).
The full text of the ICTR judgments cited in this Note can be found at http://www.ictr.org
(Bringing rape within the ambit of Genocide crimes, redefining the offence of rape to include
penetration by inanimate objects, basing this approach on amicus curiae submission)

Also see article by Rebecca L. Haffajee, (2006), “Prosecuting Crimes of Rape and Sexual
Violence at the ICTR: The Application of Joint Criminal Enterprise Theory” in Harvard
Journal of Law & Gender, Volume 29 (1)
http://www.law.harvard.edu/students/orgs/jlg/vol291/haffajee.pdf for evolving jurisprudence
on Law as is vis-à-vis Law as ought to be.

Legislation
POMA 2013 (enforcement vis-à-vis Chapter 4 of Constitution on freedom of assembly and
association)

Case law
Uganda versus General Kale Kayihura and 8 others(Charges under the Prevention and
Prohibition of Torture Act 2011). Charge Sheet before Makindye Chief Magistrate‘s Court,
(Reference, Miscellaneous Application No. 6060/2016).Note the law and the response from
the Minister of Internal Affairs.
Uganda versus Haruna Kanabi
(Get hold of the Case from the photocopy lady in Senate building. Read the full judgment
paying special attention to the way the judicial officer determined the case and her Per
Curium)
Salvatori Abuki and Richard Obuga versus The AGConstitutional Case No 2 of 1997 (Read
all the Judgments and focus on the approach taken by Seith Manyindo DCJ as he then was,
vis-à-vis the approach of the other Judges)

The Case of the Speluncean Explorers(1949) 62(4) Harvard Law Review 616illustrates the
scope for defining law. (Read the whole case paying special attention to individual judges‘
approach. Reflect on which School of Jurisprudence best describes their approach and why?).
The nine legal opinions express a much broader approach to adjudication and perspectives on
law beyond its relationship with morality.
S versus T. Makwanyane and S. Mchunu (CCT 3/94)
This is a landmark 1995 judgement of the Constitutional Court of South Africa. It established
that capital punishment was inconsistent with the commitment to human rights expressed in
the Interim Constitution. The court's ruling invalidated section 277(1)(a) of the Criminal
Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any
similar provisions in any other law in force in South Africa. The court also forbade the
government from carrying out the death sentence on any prisoners awaiting execution and
that they should remain in prison until new sentences were imposed. Pay attention to the
approach by the Judges and the extraneous factors they took into account to reach the
outcome in the case.

“Ubuntu” Concept as articulated by Lady Justice Yvonne Makgoro

She found that capital punishment is incompatible with ―Ubuntu” to which the 1993 interim
constitution bound South Africa in the post-amble. It is a rough Nguni/Bantu translation of a
quality that includes the essential human virtues; compassion and humanity … that "there is a
need for understanding not vengeance, Ubuntu not victimization"

The court conceded that the Constitution does not outlaw capital punishment per se, but
reasoned that the death penalty is incompatible with some of the core values of the
constitution in that it is undoubtedly a cruel, inhuman and degrading punishment.
The two accused in this matter were convicted in the Witwatersrand Local Division of the
Supreme Court on4 counts of murder, one count of attempted murder and one count of
robbery with aggravating circumstances. They were sentenced to death on each of the counts
of murder and to long terms of imprisonment on the other counts. They appealed to the
Appellate Division of the Supreme Court against the convictions and sentences. The
Appellate Division dismissed the appeals against the convictions and came to the conclusion
that the circumstances of the murders were such that the accused should receive the heaviest
sentence permissible according to law.
Section 277 (1) (a) of the Criminal Procedure Act no. 51 of 1977 prescribes that the death
penalty is a competent sentence for murder. Counsel for the accused was invited to consider
whether this provision was consistent with the Republic of South Africa Constitution 1993.
He argued that it was not, contending that it was in conflict with the provisions of section 9
and 11(2) of the Constitution. The Appellate Division dismissed the appeals against sentences
on the two counts of attempted murder and robbery, but postponed the further hearing of the
appeals against the death sentence until the constitutional issues were decided by the
Constitutional Court of South Africa. Two issues were raised: the constitutionality of section
277 (1) (a) of the Criminal Procedure Act and the implications of section 241(8) of the
Constitution.

Critiquing Separation Thesis in Positivism

Professor HLA Hart versus Professor Lon Fuller
Hart: What law is and what ought to be law are two separate things. Legal system comprises
Primary and Secondary rules.
Fuller: Natural Law theorist – law must contain a minimum of moral content for it to be
characterised as law. If a law did not satisfy the minimum moral content, it could not
legitimately command the obedience of its citizens.
Fuller wrote in his The Morality of Law – external morality makes a law which deserves to
be respected and obeyed, internal morality is the minimum conditions which every mature
legal system must satisfy in order to achieve its purpose. If legal rule are just, their
satisfaction will promote respect for the rule of law.
Are some things objectively wrong or disreputable?
Naturalist – the pursuit of high ideals contributes to the betterment of society – law
embodies values. Law must be good for it to be obeyed; evil orders ought to be disobeyed –
must be a minimum content of good for the law to be valid. This is the concept of internal
morality of law.
Positivist – law is a tool not the yardstick or codification of what is necessarily good – law is
value-free. (So if it is law, obey with a clear conscience – no evaluation – laws could be evil,
if legally valid, should be unswervingly obeyed: moral validity not relevant).There is a
problem with citizens evaluating for themselves every law, because this could cause
instability.

Principles Underlying Positivism

Law as a Species of Commands

Positivists particularly Austin see law as a command, as a will, as a desire, expressed by the
sovereign authority. that for law to be law it must have a command element but that element
must flow from the sovereign authority.
To him, command is the key to the science of jurisprudence. It must be backed up by
sanctions and it must flow from the sovereign.
A command is an expression of the sovereign to do or to abstain from doing particular acts. A
command flows from the sovereign authority to the subjects.
This has, however, been criticised by Prof H.L.A hart. According to Hart, John Austin is
ignorant of the fact that law is a system of rules. That system of rules is a union of primary
and secondary rules.
That the primary rules are duty imposing rules. The secondary rules are power conferring
rules. These are rules which give you a choice. For example marriage law, Law of wills.
From hart, law is a logical classification of legal propositions. It shouldn‘t be described in the
imperative and command terms for to do so is inherent coercive and authoritarian in the mode
of a military barracks. (gun man‘s salutation)
More criticism of the command theory,
 To view law as a command, invites questions like: who issued it? When? And with
what authority? Law is clearly portrayed as an artificial creation of human society.
Therefore law is not just descriptive of social order but is its ‗cause‘.
 A fundamental objection to the command theory is that the idea of a command
presupposes the order of a determinate person, and that since law emanates from ever-
changing multitude which comprises of the political machinery of the state, it cannot
be treated as the command of one person.
 Austin insisted on a determinate person or body as a source of command, presumably
on the footing that a command is an exercise of will of some particular person or
persons.
 It is important to note that the view of law as a command refers to the logical
classification of legal propositions as ‗imperatives‘ that is they are normative
statements laying down rules to guide human conduct as distinguished from
statements of facts.
 Here it is a mere matter of terminology whether the word ‗command‘ is appropriate to
bring out this distinction, or whether it should be confined to such specific instances
such as the order of a sergeant or major rapped out on the barrack square or a police
officer at a demonstration.
 Olivecrona, who raises this objection in effect, recognizes that Austin is
nonetheless justified in classifying legal rules as imperative statements and
suggests the term „independent imperatives
 Perhaps the word ‗command‘ is undesirable for its psychological associations and it is
frequently replaces now days by the more colourless designation of ‗imperatives‘ or
‗directives‘
 Others such as Duguit , asserted that the notion of command is in any event
inapplicable to modern social legislation, which binds the state itself rather than the
individual. There is a suggestion here that there is no command at all.
 Austin insisted that there can be a command where some organ of the sovereign, as
against the sovereign itself (he avoids the word state) is commanded and this would
certainly cover most legislation of the type envisaged.
 However, one ought to bear it in mind that the whole notion of the state or
sovereign being unable to command itself is a wholly unrealistic one, in the ambit
of the highly complex web of modern public law

Law as Emanating from a Sovereign Authority

J. Austin requires that law present itself as a command of a sovereign who is

owed habitual obedience by his subjects. A sovereign, says Austin, is a
determinate person or group of persons who is rendered habitual obedience - but
who does not render any such obedience to any one - by the bulk of society.
Austin‘s reference to a sovereign is not clear but we can define a sovereign to be
a person or group of persons who are competent to pass legislation in a political
community.
The competence of a sovereign authority is in making laws and the sovereign authority is,
according to Austin, deemed to have the following features.
The powers of a sovereign authority are immutable (can‘t be changed), they are
unlimited/unquestionable, they are indivisible and are absolute.

Such features of a sovereign authority present a challenge in modern society. It is clear that
in complex societies there may be no one who has all the attributes of sovereignty, for
ultimate authority may be divided among organs and may itself be limited by law. Moreover,
even when ―sovereignty‖ is not being used in its legal sense it is nonetheless a normative
concept. A legislator is one who has authority to make laws, and not merely someone with
great social power

In many societies, it is hard to identify a "sovereign" in Austin's sense of the word (a

difficulty Austin himself experienced, when he was forced to describe the British "sovereign"
awkwardly as the combination of the King, the House of Lords, and all the electors of the
House of Commons). Additionally, a focus on a "sovereign" makes it difficult to explain the
continuity of legal systems: a new ruler will not come in with the kind of "habit of
obedience" that Austen sets as a criterion for a system's rule-maker.

The view that law emanates from a sovereign authority narrows the definition of law. This is
because it excludes international law and customary law. In international law, there is no
legislature to make laws since nations bind themselves by their consent to certain treaties and
international law is said to have no sanctions to backup the would be commands. Also in
Africa, most societies had for recognise customs and traditions as laws but nowhere can a
sovereign be traced to say that the law emanates from him.

In order to determine whether law is properly so called, one must first determine the
sovereign authority. It must be noted that Austin and Bentham were writing their views in a
different era of monarchism. This is when the sovereign was a patrimony with a power to
make laws and he was law unto himself. Over time the role of the monarch to make laws was
challenged and evolved and was later supplanted by parliament. In England parliament
became the sole law making body hence the concept of parliamentary supremacy being
sacrosanct. The law making function was a long lived tradition of the monarchy before it was
subsumed by parliament. Because the monarchy was a long lived monarchy, this created an
obedient tendency.
However, the question of the sovereign power has become particularly significant in modern
times and especially constitutional jurisdictions where the law making function is provided
for by the constitution. Sovereignty lies with the body that not only has powers to make laws
but also the power to amend the same constitution from which it derives power and in Uganda
under Article 79, of the constitution, this is the parliament. There is still difficulty in Uganda
on who actually the sovereign is since Article 1 of the Constitution 1995 places sovereignty in
the hands of the people to exercise it in accordance with the constitution and more so Article 2
thereof provides that the Constitution is the Supreme law of Uganda and shall have binding
force on all authorities and persons throughout Uganda. Does this make the people sovereign
or the constitution therefore? H.L.A Hart states that ―If we attempt to treat the electorate in
such cases as the sovereign and apply to it the simple definitions of the original theory, we
shall find ourselves saying that here the 'bulk' of the society habitually obey themselves.‖
To positivists the law is entirely the preserve of the sovereign that is the law making power is
undivided. This was evident in Uganda during Idi Amin‘s dictatorship (1971-1979) where
under Legal Notice No. 1 of 1971 (Parliamentary and Vesting of Powers) Decree No. 1 of
1971 suspended the powers of the existing parliament which was the formal law making
power and instead those powers were vested in Idi Amin an individual and from then
onwards Amin became the sovereign authority.
However, Austin‘s notion that sovereignty is indivisible is falsified by Federal constitutions
and certainly Austin‘s attempt to locate the sovereign in the United States was a singularly
unhappy venture. The mistake here was to assume that sovereignty has an inherent ―nature‖
(though whether as a matter of logic or physical fact is far from clear) which it cannot avoid.
In Uganda though Parliament has powers to make Laws under Article 79, it can still delegate
this power. The Local Government‘s Act allows local councils to make laws called
ordinances as per section 38 of the Local Governments Act. Also certain Acts of parliament
provide that they will commence by stratutory instrument issued by a minister for example
the Access to Information Act. This shows that the powers of a sovereign are not indivisible.
To Austin the sovereign‘s power is not to be limited (unlimited). However, in modern legal
systems this power is limited through procedural or substantive rules. Plain examples of
substantive limitations are, however, to be found in federal constitutions such as those of the
United States or Australia, where the division of powers between the central government and
the member states, and also certain individual rights, cannot be changed by the ordinary
processes of legislation. The most famous of such legal limitations on legislative powers is
the Fifth Amendment to the Constitution of the United States. This provides, among other
things, that no person shall be deprived 'of life liberty or property without due process of law';
and statutes of Congress have been declared invalid by the courts when found to conflict with
these or with other restrictions placed by the constitution on their legislative powers.

In Uganda parliament‘s powers are limited by the constitution itself. Article 92 prohibits
retrospective laws, Article 93 restricts parliament from making laws on certain financial
matters and Article 88 requires quorum before passing certain laws. For example in Oloka
Onyango and Ors v Attorney General, the Anti Homosexuality Act was nullified by the
constitution court as parliament passed it without the required quorum. This state of affairs
therefore dilutes the definition of a sovereign as conceived by Austin.
The positivist position that the sovereign is under no direction from any outside force is also
rendered irrelevant if globalisation is taken into consideration. Despite a country‘s
sovereignty, it is subject to a number of regional and international legal instruments. A state is
bound by treaties and conventions it ratifies which binds it. Bodies like the UN Security
Council and the laws of the East African Community and other Economic unions such as
ECOWAS, COMESA, and TRIPS bind member states. So the question is then who is
supreme influence a country‘s law making process. Today parliament which is the sovereign
is subject to external influences like from the executive, various political parties and even
forces beyond the country like the International Monetary Fund, World Bank and other Donor
agencies. The latest example of such influence being the outrage by the United States and
other European donor countries against the Anti-Homosexuality Act which made parliament
to revise a number of provisions unlike what as in the original Bill. It should be noted that the
BREXIT vote in England was because the British people wanted to preserve their sovereign
authority from external influence of the European Union.

The notion that a sovereign‘s power is immutable is still an illusion considering that
governments are bound to change. In Uganda, there was a parliament until the 1971 coup
which vested law making power in Idi Amin an individual. However in 1979 he was
overthrown and Legal Notice No.1 of 1979 the National Consultative Council became the
legislature which was a challenge to Legal Notice No. 1 of 1971. Also there was Legal Notice
No. 1 of 1986 which established the National resistance Council as a law making body.
In modern legal systems the powers of the sovereign are not absolute. They can be
challenged. In most countries there is a requirement for presidential assent to laws passed by
Parliament and the fact that laws made by parliament can be challenged in courts of law and
overturned. In some jurisdictions the president has power to dissolve parliament. The powers
of parliament can be challenged in courts of laws. This has been seen in a number of cases.
The first one being the Sempebwa v Attorney general which challenged Legal Notice No. 6 of
1986 that purported to prevent parties to recover from government for claims before 1986.
However this notice was signed by Museveni as Chairman of the NRC yet under the
provisions of the 1967 Constitution which had been saved by Legal Notice No. 1 of 1986 it
was the president who was supposed to sign. Court did not hesitate in nullifying Legal Notice
No.6 of 1986 on procedural grounds. Here the powers of the sovereign were challenged and
the law was nullified.
Paul K Semwogerere and Anor v Attorney General challenged the constitutionality of the
Referendum and other Provisions Act of 1999 for being passed without quorum. The Supreme
Court ordered the constitutional court to hear the matter on merits but before hearing it,
parliament quickly passed another Act which was also challenged by Semwogerere. In both
cases the Acts were nullified by court.
Of recent the Constitutional Court nullified the Anti Homosexuality Act in the case of Oloka
Onyango v Attorney General on procedural grounds that it was passed without quorum.
Austin failed to distinguish between de jure sovereignty (authority to make law) from de
facto (power to enforce obedience). The attempt by Austin to base sovereignty on habitual
obedience has been strongly criticized as confusing the legal with the de facto or political
sovereign. It has been suggested in answer, that Austin was looking for neither of these, but
for the logically presupposed ultimate source of law in any state viewed as an abstract
concept.

Such cases demonstrate that the power of the sovereign is therefore not immutable, absolute,
unlimited and unquestionable. Therefore considering the above analysis, it can be deduced
that Austin‘s sovereign authority is to a lesser extent reflected in modern legal systems and
can only be analysed in a dictatorial or monarchical form of government. This shows that the
idea of a sovereign authority does not work in modern times and legal systems.

LAW AS A MEDIUM OF SANCTIONS

What is a Sanction?

- In the original sense of the word, a ―sanction‖ is a penalty or punishment provided as a

means of enforcing obedience to a law.
- A threat of an adverse infliction, a punishment, a loss, pain, shame, humiliation, a price
for wrongdoing and so much more.
- A sanction is what is incurred in case of disobedience by an inferior (subject) to comply
with the wish or command expressed by the sovereign. There is strong criticism of the
centrality of sanctions in the definition of law. This has largely been due to the
undesirable psychological connotation of stressing and emphasizing fear with the result
that the idea of orders and threats as underpins commands and sanctions tends to confuse
- In Jurisprudence, a law is said to have a sanction when there is a state which will
intervene if the law is disobeyed or disregarded; therefore International Law has no legal
sanction.
- In a more general sense, a ―sanction‖ has been defined as a conditional evil annexed to a
law to produce obedience to that law.
- Elsewhere, in a still wider sense, a ―sanction‖ means simply an authorization of anything.

Sanction and punishment

A sanction can be distinguished from punishment. Sanction is the genus of which punishment
is the species. A sanction consists of the application of the physical force of the state for the
enforcement of law. Punishment or penalty is an evil inflicted upon a wrongdoer.
Punishments are pre-eminently the sanction of criminal law. They are ultimate sanctions. The
term sanction is much broader than punishment. It is one of the kinds of sanction. There are
more sanctions other than punishments. Civil sanction for example involves compensation as
its object.

Sanction and liability

Sanction is a conditional evil to be incurred by disobedience of law. Liability is the state of
exposedness/exposure to the sanctions of the law.

Sanction of nullity
Sanction of nullity is a civil sanction which regulates the rules of evidence and procedure. It
consists in a refusal by the court to help a party who has disregarded the law. A document
which requires to be registered will not be given effect if it is not so registered.

The Historical Evolution of theories of Sanction

The Roman province believed in the dictas in New Testament, which expressed the thought
that the supreme power actually has received divine sanction by being permitted to prevail,
that it has a rightful claim to obedience. These dicta are an evidence of the sentiments of
roman provincial under the earlier empire .The prevalent answer to any question about the
source of legal sovereignty and the moral claims of a sovereign to the obedience of its
subjects was that god had appointed certain powers to govern the world and to resist would
be a sin. It was admitted that there were two sovereigns and each was absolute - the pope in
spiritual and the emperor in temporal matters. However, late around, the C16th various
changes took place which shook the existing fabric of thought and belief. These included the
crumbling of feudal structure of the society, the pope's authority being met with a revolt
where half of Europe was taken from his sway. A new spirit of inquiry, skeptical in its
tendencies sprang up in Europe ( a characteristic of renaissance). Thus the traditional doctrine
regarding the basis of authority which had been sufficient for the middle ages had faded,
morals began to be separated from theology, people started questioning the basis of a kings'
claim to obedience. A new explanation of the nature of political society was now needed and
from this time onwards new theories of state power began to appear (one of which was
Positivism).
Austin on Sanction
There is a controversy on the point whether sanction is an essential element of the law or not.
The majority of the jurists who follow Austin are of the view that sanction is an indispensable
element of law. According to Austin ―It is only conditional evil that duties are sanctioned or
enforced. It is the power and the purpose of inflicting eventual evil and not the power and
purpose of imparting eventual good which gives to the expression of a wish the name of the
command. In John Austin‘s definition of Law, the commands of the sovereign were to be
backed by sanctions. Just as commands were central to the Austinian idea of law, sanctions
were regarded as an indispensable, integral element of the law. By deduction, a command of
the sovereign not backed by sanctions was not law. And in his own words, ―… a sanction-less
law was a contradiction of terms‖.
Because by his definition, the element of sanctions was central to any analysis of the notion
of Law, he did not regard international law as Law. This is because, not only was it not a
command from a determinable sovereign, but its rules are not backed by sanctions.
Steer students to The Concept of Law p. 78 where H. L. A. Hart criticises the concept of
sanctions.

Herbert Lionel Adolphus Hart

H.L.A. Hart was an influential legal philosopher of the 20th century. He was Professor of
Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He
authored The Concept of Law in 1961 and made major contributions to political philosophy.
This book is his most famous contribution to Legal Philosophy, with a second edition
(including a new postscript) published posthumously in 1994. The book emerged from a set
of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture,
Positivism and the Separation of Law and Morals delivered at Harvard Law School. The
Concept of Law developed a sophisticated view of legal positivism.
Among the many ideas developed in this book are:

 A critique of John Austin's theory that law is the command of the sovereign backed by the
threat of punishment.
Covered under Law as Emanating from the Sovereign Authority
 A distinction between primary and secondary legal rules, where a primary rule governs
conduct and a secondary rule allows of the creation, alteration, or extinction of primary
rules.
Ditto
 Hart on Sanction
According to Hart, ―rules are conceived and spoken of as imposing obligations 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. He adds, legal rules are primarily enforced
through the threat and actual use of ―physical sanctions‖ while by contrast, the typical form
of moral pressure ―consists in appeals to the respect for the rules, as things important in
themselves, which is presumed to be shared by those addressed.
Critiquing Hart‟s Views on Sanctions
Although this point is an important and illuminating one, Hart puts it in a somewhat
misleading way. In the first place, those appeals to conscience which Hart associates with the
enforcement of morals also play an important role in the enforcement of the rules of a legal
system. This is especially true with respect to self-enforcement, where obedience to the law is
often based upon the belief that one has a moral obligation to do as the law commands. That
the appeal here is to a moral belief, or to one‘s conscience, does not alter the underlying fact
that in this situation the appeal operates as an instrument of law enforcement. More
importantly, there is nothing absurd in the idea of a moral system which stipulates that certain
classes of wrongdoers ought to be punished by the application of physical sanctions. The fact
that the use of such sanctions for a moral purpose may itself be a legal offense does not
invalidate this point.

Moral system may prescribe physical punishment for those who break its rules, so long as the
imposition of such punishment is effectively prohibited by the officials responsible for
enforcing an independent system of rules (through the use of physical sanctions if necessary)
it will remain a moral system. It is just at the point where this disability is overcome that it is
no longer correct to speak of the rules in question as moral rules, for to the extent that such
rules are effectively enforced by physical sanctions they are laws.

If law differs from morality with respect to the type of sanctions which it employs, it also
differs, according to Hart, with respect to the mode of their administration. Typically, moral
sanctions take the ―form of a general diffused hostile or critical reaction. By Contrast, legal
sanctions are typically administered by a centralized official organ which possesses the
exclusive authority to punish violations of the law.
Other criticism ( can be ignored as it doesn‘t refer to the critics except one or two)

Austin‘s insistence on sanctions as a mark of law has frequently been objected to as

concealing or distorting the real character and functions of law in community real character
and functions of law in community.
Sanctions, it is said, do not explain why law is changed and place an undue emphasis on fear

The essence of a legal system is the inherent fact based on various psychological factors, that
law is accepted by the community as a whole as binding and the element of sanction is not as
essential or even an important element in the functioning of the system

It has been argued that law essentially depends on authority and what does this mean?
Authority implies that obedience is rendered by one person to another because the former
recognizes that the latter has a right to obedience.

In other words the person laying down the rule to be obeyed is claiming that he is
legitimately entitled to do so and the subject in obeying is acknowledging that legitimacy.
This position involves a hierarchical subordination between the subject and ruler.
The argument here is that the threat or application of sanctions is only a peripheral feature of
law which at least theoretically could exist and functions which at least theoretically could
exist and function without aspects apparatus of law enforcement.

For those who seek to stress to part which sanctions play on the other hand seek to deploy
two arguments to oppose this. First, it is said that the question is not the precise psychological
explanation why people obey the law.
This is a matter of social psychology and not law.
The second objection on the other hand, seeks to meet the argument from social psychology
on its own terms by insisting that, despite the admitted strong impulse towards voluntary
obedience to authority, there are aggressive and anti-social forces at work both in individuals
and society generally which militate decisively against the functioning of any legal system
which are not ultimately backed by force.

Although any particular individual may obey law without thought of sanctions, it is
practically certain that, if the law ceased to apply sanctions as a whole society would
disintegrated.

There is an attempt to justify a coercion theory of law that was developed from a more
fundamental philosophical view point.

This rejects the need, as positivists generally fail to link a theory of coercion with
identification of a set of rules constituting the law.

If it is subjected, we substitute for the question, what is ―illegal behaviour‖? the answer can
be given in purely sanctionists terms as simply behaviour which the sovereign or
governmental power is disposed to punish.

This is not to deny that law does often involve an appeal to rules, as for instance when legal
officials use legal reasoning to reach decision as to what behaviour is illegal, this however, is
not the same as the question what makes certain behaviour illegal

Furthermore, coercion theory supplies a uniform account of illegal behaviour which cannot
be provided by a rule-oriented theory.

Certainly theories which seek to explain law exclusively in terms of rules do give rise to
certain difficulties to which some authors like Dworkin refers too.

However, it may well be that these difficulties can be avoided or evaded by posing the
seemingly simple question, what is illegal behaviour?

 What however may be doubted is whether the proposed answer, relying solely on the
test of what the sovereign or officials on his behalf are disposed to punish provided
the straight forward criterion which is claimed.

 At the same time it does help to provide some insight into the way coercion is built
into the framework of illegality and therefore of law itself.

It is therefore one, if not the only way in which the contention of the anti-sanctionists that
coercion is not indispensable to law may perhaps be refuted
 Maccormik has agreed on the other hand, that the fundamental objection to law being
regarded as essentially coercive is logical rather than practical.

Even if it is true that coercion has actually proved necessary in all known human societies.
This is only a contingent feature and not logically necessary feature of legal order which
determines rights and defines offences for the members of any society

NOTE; for other notes refer to the handout of Dr. Lajul

For Kelsen‟s pure theory of law, refer to the pamphlet, Key Issues in Jurisprudence by
Paul Omony
TUTORIAL QUESTIONS

1. The Penal Code Act of Uganda could be described as largely falling within the
positivist jurisprudential approach. Discuss.

2. If there is one African case that distinctively aroused the debate on the question of the
separation of law and morality, it was the S v Makwanyane and Another (CCT3/94)
[1995] ZACC 3. Why?

3. How suitable is positivism as a legal theory to Uganda?

4. John Austin argued that a command without sanctions is contradiction of terms.

Explain this view, and the criticisms of it.
5. Give a critical analysis of the positivist concept of the sovereign based on Uganda‘s
experience.

6. John Austin‘s focus on commands and sanctions as the central elements of law has
been criticized by legal theorists who consider it too rigid and inadequate. Discuss.

7. Critically evaluate any of the following concepts and their relevance in a country of
your choice-

a. Sovereignty

b. Sanction

c. Separation between law and morality

8. Write comprehensive notes on any of the following-

a. Jeremy Bentham‘s principle of Utilitarianism

b. Law as it isvis-à-vislaw as it ought to be

c. Internal morality of law

9. To what extent are theorists in natural law, positivism and sociological jurisprudence
agreed or disagreed in terms of the concept and origin of law as well as the nexus
between law and morality?

10. Evaluate the utility to a practising lawyer in Uganda of the opinions of the Judges in
The Case of the Speluncean Explorers in Harvard Law Review (1949) Vol. 62, No.
4.

Please note the following-

I. How to write a bad Jurisprudence Examination answer

Based on ttp://users.ox.ac.uk/~taoe/constitutional.html (Dr. Endicott’s website)

1. Don‟t answer the question: regurgitate your lecture notes from a related
topic instead. If you plan to answer it, the following may help.

2. Try to think that there is only „one right answer‟ to the question and that you
have found it. This will make you sound duly presumptuous and give you an
excuse not to justify your claims. Alternatively, try to think that there is only
„one right answer‟ to the question and that you haven‟t found it. This will
make you sound duly insecure. Instructions below, for either case (they are
not so different).

3. Be woolly. Say things like „many have argued‟ rather than saying who argued
and why. Use „seems to be‟ as a shorthand for „it is perhaps the case, but I
have not made the effort of checking it, which will hopefully not matter to my
examiner‟.

4. Use „thus‟ („therefore‟, „hence‟…) whenever you prefer the lecturer to work
out why your next sentence follows from the previous.

5. Don‟t tell the lecturer in your first paragraph what and how you‟re going to
argue. It‟s much more exciting if he/she needs to gradually work his/her way
through scattered bits and pieces that guide him/her to the unwritten
conclusion (a „Grund-conclusion‟ or a „conclusion of recognition‟). It‟s called
jurisprudential Scavenger Hunt. We love it. [Note: This rule doesn’t always
guarantee you a bad answer unless you combine it with rule 8. Don’t take
risks!]

6. Write a conclusion that summarizes what you should have said rather than
what you did say.
7. Reassure the lecturer that he/she did a good job setting your examination
question by insisting that the question is „difficult‟ and „important‟ and that
the authors concerned are „famous‟.

8. Make sure you give no hint about what a particular paragraph is supposed to
show and how it is supposed to contribute to answering the question. If
possible, make unconnected claims within the paragraph as well.

9. Be pompous. Spend at least four sentences, or ideally many more, repeating

the question and promising that you will answer it „fully‟, „exhaustively‟,
„properly‟ or „rigorously‟. (Else the lecturer has no way of finding out how
well you‟ve answered the question.

10. After you have set out the background of the question – i.e. explained what
various people in your reading-list said – be sure to stop. Just to avoid
misunderstandings, remind the lecturer, in case he/she had forgotten, that the
actual essay-question is so difficult that it cannot be solved without a „detailed
study‟. Don‟t forget to add the tag „which lies beyond the scope of this
answer‟.

11. Above all, clarity, sound analysis and originality should be considered as
irritations.

II. Marking Guide for Jurisprudence coursework and examination

Course: JURISPRUDENCE I

Code: MLAW 7111 (Postgraduate Programme)

L 3108 (Undergraduate Programme)

Marking Guide for coursework and examination:

80-100% Awarded for: Excellent answers to the questions; good understanding,

identification and appreciation of the main theories, concepts/ideas behind the
questions and capacity to apply them to answer the questions and in making
comprehensive assessment of issues involved. This includes a good use of relevant
authorities coupled with originality and independent thinking, clear arguments and
presentation of persuasive divergent views.
70-79% Awarded for: Good answers to the questions with good appreciation of
main issues and ability to make appropriate critical points which show good
understanding of issues behind the questions. Exhibiting awareness and appreciation
of the main theories, concepts/ideas and is able to apply them in a coherent and well-
presented and argued manner. Presence of originality and possibly
critical/independent thinking.

60-69% Awarded for: Competent answers to the questions, bringing out useful
points and applying relevant ideas. There is limited analysis and originality even if
substantiating and presenting arguments and comments relevantly and intelligently.

50-59 Awarded for: Sensible/relevant responses and comments and maybe, some
level of reasonable/good arguments though also characterized by limited use and
understanding of the questions and applicable theories or application of authorities.

0-48% Awarded for: Inadequate presentation, characterized by little evidence of

reading and understanding of the questions or relevant concepts applicable in
answering the questions. The answers contain unrelated or inappropriate/inapplicable
arguments. The essays are mainly unoriginal, incomprehensible or merely descriptive
and unsubstantiated, characterised by some level of incoherence in argument.
SOME MATERIALS FOR REFERENCE.
Definition of law
ISAAC CHRISTOPHER LUBOGO
QUESTION: Scholars have found the definition of law difficult because the theories of
law begin from different premises and therefore non comparable, its difficult to obtain one
objective theory of knowledge. How defensive is this view.
There is no universally accepted meaning attached to law, the meaning attached to law
depends on one‘s theory of knowledge ideology and the general philosophy one subscribes to
its indeed this that has led scholars to find the definition of law difficult because theories of
law begin from different premises, and therefore non comparable, it has therefore made it
difficult to obtain an objective knowledge of law, this has been so, because law may be
perceived to mean different things depending on the school of jurists that one looks at. Law
depends on the purpose for which it is thought.
There are a number of factors that determine the definition of law, first are the usage of
words. Words have different meanings in different circles of thinkers. Furthermore
definitions may be a matter of choice or criteria. This means that any definition will have
limitations because to define is strictly to substitute one word for another word or set of
words and these further words may need a further explanation.
The definition of law also depends on the function it is given; it also depends on the actual
functions of the words used. Precision might not be attained but an approximation may be
useful.
What law is or is perceived to be or is defined also, depends on the historical moment when
the definition is made. Usually the law adopted reflects the interests of the dominant class or
social group at the given time.
Definitions have also depended on the ideological conception or attitudes of the Jurists. The
definition of law depends on whether one adopts an idealist or materialist world outlook. It
depends on whether one subscribes to socialism or capitalism even within these camps we
have sub ideological differences such as the neo-Marxists, the dualist and others.
Definitions of law depend on its specificity or generality. Some schools of thoughts have
defined law to include customs.
And therefore in order to obtain an objective theory of law one has to look at the different
schools of jurists. Its thus important to look at the different historical contexts which have
given use to different meanings and character of law within the different historical contests
the theories of law adopted reflect the interests of the dominant classes a social group at the
given time. However the emergence of the different theories of law cannot be fixed
mechanically to historical categorization because of the changes within the different
categorization. It‘s this historical moments of various modes of production that have affected
various jurists interpretations of law and made it difficult to obtain an objective knowledge of
law, and in order to understand knowledge of law one must study it not according to the
dictates of any abstract system, but in the real charges and inter connections and that is what
is meant by dialectics1. To obtain knowledge is to replace ignorance or untrue ideas by true
ideas. But simply to equate knowledge with truth is not to define knowledge to obtain

1
Marice, coforth; Dialectical Materialism vol. 1
knowledge involves having it tested and proved. If absolute truth were attained they would be
no room for further investigation. Knowledge is always expanding, or at least capable of
expansion, and therefore always incomplete. At times we find that in light of new knowledge
certain implications drawn from the old were wrong, and it must be reconsidered and
reformulated in various ways. Hence we must be prepared to recognize that all knowledge is
always limited, incomplete, defective and requires not only supplementation but also
criticism to carry it forward. However it is possible to have a minimum level of objectivity.

It‘s worth noting however that there are various ways of acquiring knowledge for example
under the metaphysical rational theory there is a claim that all knowledge is contained in
nature and is discovered by reason.
Rationalism is also another way of acquiring knowledge, rationalism comes from the word
„ratio‟ which means reason and therefore it means it‘s through reason that man comes to a
conclusion.
Furthermore we have the idealist way of acquiring knowledge, this is the way by which
people look at the fact of ideas an example of such idealist was Hegel who said that the
evolution of the world was manifest in one idea the universal spirit.
The empiricist on the other hand stress that knowledge is acquired by experience and that this
comes after time has passed. Empiricism has its roots in the ancient Greece with empericurus
who maintained that senses are the only source of knowledge.
Knowledge is essentially a social product. It is built up socially, as product of social activity
of men. It is built up by individuals, but individuals acting in co-operation, depending on one
another communicating their experiences and ideas. Knowledge which; is a product of human
association depends upon the development of social production. Therefore the sum total of
knowledge and its character, at any stage of social development is always dependent on and
relative to the stage development of production. Hence as we shall discuss later the
interpretation of law by various schools of law other than the Marxian varied with the
changes in the level of production.
We have natural sciences as opposed to social sciences; law is a social science concerned
with man. Natural science deals with matter; there are different conceptions of natural science
explanations. There is the empiricist account, which holds that only those statements, which
can be empirically verified, can be considered to be true knowledge. The empiricists rely on
induction. They observe empirical facts followed by inference and testing to lead to an
explanatory theory. They reject value judgments. However this view has been refuted. This is
because the induction does not lead to the inference of absolutely rigid causal laws but rather
to statistical regularities which we assume will apply until we find they do not. Secondly
there remains an element of chance such that they physical world cannot be explained solely
in terms of predictable deterministic laws. Thirdly verification is not always possible.
Fourthly natural sciences are not value free2.
However social sciences cannot be fitted into the modified empiricists account of the natural
sciences. This is firstly because natural sciences being concerned with matter the social
sciences with man. Matter reacts to a stimulus: It does not understand its own behaviour. It
has no subjective intentions. Men define their situation and act in certain ways to achieve

2
Llodys introduction to jurisprudence 6TH edn pg. 7
their ends. Secondly the social scientists cannot experience of another person. As Lloyds
states in his ―Introduction to Jurisprudence‖, each actor‘s experience make him perceive what
is going on in a way, which distorts the meanings to the other actors involved.3
However Lloyd accepts that we know the social world through a shared stock of knowledge
and correctness of the knowledge is continually reinforced by the actions of the other4
The history of law is not just a record of dates and events; it is the result of the dynamic
process of class contradiction giving rise to new levels of production. These class struggles
are determined by internal contradictions and conditioned by external factors.
In the communalist or primitive society, which was, classless property was communally
owned. There was barter trade as there was no money. Production was essentially for the
family units or community. There were stateless society and there was no law.
In the slave society which was the first class society there the slaves on the one land and the
slave owners. Whereas the slaves were the producers the slave owners appropriated their
produce. The slave economy possessed no internal mechanism of self-reproduction of its
labour force. The slave masters never encouraged the use of female slaves for lack of
profitable employment for them. The slavery mode of production gave way to the feudal one.
Under feudalism we had the serfs who where the backbone of the economy and the feudal
lords who were the church and the monarch. Surplus was extracted in three forms; in the
form of work (or labour rent), in the form of money. With the intrusion of money the feudal
economy gave way to the mercantile economy.
Under the mercantilism economy, the merchants wielded a lot of influence. They organized
themselves into associations called guilds to champion their causes and to win for the towns
the freedom necessary for their growth and development. After centuries of struggles the
merchants won freedom from the feudal mobility for their guild towns to have a commune
and maintain it in perpetuity. These privileges turned into monopolies. The merchants
wielded influence on the Kings, as they would finance their wars. Eventually the producers
became independent of the circulation process just as the mercantilist capitalist became
independent of them. With introduction of machines mercantilism economy gave way to the
capitalist society.
Under the capitalist society there were two major stages. We had completive capitalism and
then monopoly capitalism. Under completive capitalism we had the emergence of the
bourgeoisie who appropriated the surplus values of the working class. However free
competition gave rise to the concentration of production, which in turn leads to monopoly.
Monopoly capitalism was accentuated by finance capital, which was combination at
industrialist and Bankers. Today monopoly has become a fact.
However due to the internal contradictions within capitalism there were the revolution such
as the 1917 Russian revolution to mitigate the harshness of the capitalist mode of production.
They ushered in socialism which is a transition stage to a classless society and communalism.
With the brief outline of the various mode of production the law protected the dominant
classes. We shall see later how the various legal jurists are affected in their interpretation of

3
ibid pg. 7
4
ibid pg. 8
law by the historical moment their interpretation of law by the historical moment their
interpretation was given or the mode of production.
In order to obtain an objective theory of knowledge of any issue we must study it form the
Marxian approach. Marxism seeks to base our ideas of things on nothing but the actual
investigation, arising from and tested by experience and practice. The revolutionary
characteristic of dialectical materialism and historical materialism are embodied in the
Marxist philosophy.
The Marxian approach seeks the reason of things in the material, economic conduction of
social life. Its way of interpreting things is based on their interconnections with others. It
works at things as a process of change hence historical materialism.
The Marxian theory derives its existence from the classical writings of Karl Marx and F
Engels the law is an instrument of class domination and oppression. The law is the will of the
ruling class expressed in legal form to protect their economic and political interests. Law is
determined and is a reflection of the relations of production in society. When surplus product
is produced it is increasingly appropriated by a class of non-producers who have consolidated
themselves into the dominant class. This leads to class contradictions especially between the
producer and the appropriator. It then becomes necessarily for the dominant class to see to it
that the individual subordinates himself to the common conditions of production and
exchange. The rule, which was at first custom, becomes law. With law organs necessary arise
with its maintenance. Hence the state and law emerge as instruments of the dominant class to
exploit and subdue the other classes.
Even in the Marxist school we have different sub-schools. For instance Granisci argues that
law is part of the several ideological elements that the ruling class advances to achieve
hegemony over the dominated classes. Although this approach does not deny the
instrumentality of law for the dominant class it seeks to show that such instrumentality of law
for repressive purposes is limited, instead it emphasizes on the ideological character of law.
Secondly we have the Natural School of Law where the natural schools of jurists have
attempted to define law in universal terms. The natural jurists argue that there is a higher or
superior law common to all human beings to which all man made laws are subject and should
conform to. There also argue that there is a certain minimum standard of morality that every
law should contain and the law should be for the common good of society. If any law does
not have an element of rationality in it is not law. As St. Augustine stated, ―There is no law
unless it be just.‖
The concept ―natural law‖ has continuity. It has had very different meanings and has served
entirely different purposes the interpretation of natural law has differed depending on the
historical moment it was interpreted. There is the medieval and the modern concepts of
natural law. The interpretation of natural law depended upon the development of social
production at the material time of the definition.
In Ancient times we find some concepts of natural law in the writing of Cicero in his book
―Dr. Reuplica‖ who states that5
―True law is right reason in agreement with nature; it is of universal application, unchanging
and everlasting.. there will be one master and ruler, that is God, over us all for he is the

5
ibid pg. 130
author of the law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing
from himself and its enforcing nature.‖
Cicero was an orator during the times of the Roman Empire, which was based on the slavery
economy. Conceptions of the supernatural and religious ideas in general owe their origin first
of all to the helplessness and ignorance of men in face of the forces of nature. With the birth
of class society, when men were impelled to act by social relations when they did not
understand, they invented supernatural agencies doubling as it were, the state of society.
The most important natural theorist was medieval catholic theologian St. Thomas Acquinas
who in his book summa theological stated that:
―The law is a rule of measure of action in virtue of which one is led to perform certain actions
and restrained from the performance of others.‖
St. Thomas Acquinas created a hierarchy of law namely eternal law natural law (natural
morality) and Human law. Acquinas argued as follows6
―The validity of law depends upon its justice. But in human affairs a thing is said to be just
when it is in agreement with the rule of reason. And the first rule of reason is natural law.‖
St. Thomas argued that man is bound to obey the secular ruler to the extent the order of
justice requires. Man would overthrow a tyrannical government.
St. Thomas Acquinas was a theologian during the feudal era, when the church was competing
with the monarchy for power and land. According to acquinas‟ hierarchy of law he subjected
state law to eternal law ordained by God and applied by churches. Kings were made by God
and the Pope exerted a lot of influence during the feudal era.
The context of natural law changed with time. In the 17th century when the church influence
had waned and the states had become stronger Thomas Hobbes developed the concept of
social contract. Hobbes argued that since man is basically selfish, aggressive but prefers
peace, they must transfer all power to one man or a group – leviathans who was to use the
power to promote peace and security for all. He claimed all commands of the sovereign are
right and therefore there is nothing like unjust laws since the sovereign is impotent. His view
of law encouraged absolutism and dictatorship. Hobbes‘s concept of law was during the rise
of capitalism when the rising bourgeoisies were threatening the authority of the monarchy
and the state.
In contrast John Locke a liberal natural jurist in the 17th century claimed human beings had
fundamental and rights which the state could not violet. He argued that man in a state of
nature enjoyed freedom, which was governed by natural law. Hence man made laws to
protect
fundamental rights and liberties and protect against absolutism. John Locke‘s formed the
basis of the ideology of many bourgeoisie revolutions. John Locke and Hobbes‘s contrasting
view show the contradictions in the rising capitalist states and the class struggles.
The 18th century was the age of reason, secularism and rationalism. Natural law thinking was
heavily attacked. The idea of a universal natural law common to all mankind was refuted.
Despite these changes natural law ideas lingered. One of the 18th century thinkers Edmond
Burke used the term natural law to refer to principles of truth, justice and liberty as opposed

6
ibid pg. 136
to arbitrary power. He used natural law to legitimize capitalism, its institutions and
ideologies.
The attempt by the natural school of jurists to define law is futile. There definition of law is
too idealistic and metaphysical. They explain law in terms of higher or supernatural concepts
but not in terms of material or social conditions in which law operates. They deal with
ambiguous concepts such as common good and law should conform to certain standard of
morality. Morality differs in societies just as men do. Their concept of state is weak. The state
is an organ of the dominant class. The law is a hand of the state. Hence the law is a coercive
instrument of the ruling class.
Next we will discuss Legal Positivists. It should be noted that during the 19th century and
after, the natural school of jurisprudence was overtaken by other schools especially the legal
positivists. Capitalism had established itself in Europe. The bourgeoisie were the dominant
class in Europe. The church had lost its political power. The bourgeoisie law aimed at
protecting capitalist property and served to justify exploitation and suppress all progressive
forces.
According to the leading legal positivist John Austin, law is a command of the sovereign. The
legal positivist did not consider the concept of natural law as law. The legal positivists were
not concerned with the environment of the law. Their concept of sovereign arose at the end of
feudalism. Nation states were arising and state sought to become a independent legal eternity
with clear supreme power.
Other legal positivist include Jerome Bentham who in his book ―of laws in General‖ defines
law as ―an assemblage of signs declarative of a violation conceived or adopted by the
sovereign in a state concerning the conduct to be observed in a certain case by a certain class
of persons who in the case in question are supposed to be or are subject to his power.7
Bentham was one of the first thinkers to liberate law from metaphysical thinking.
John Austin another legal positivist explained law as ―a rule laid down for the guidance of an
intelligent being having power over him‖. He defined in terms of laws and sanctions. He was
not concerned with how the sovereign got their power.
Next, concerning the Pure Theory of Law, law is a theory of positive law expanded by Hans
Kelsen. As a theory it is exclusively concerned with the accurate definition of its subject. It
endeavors the answer the question what is law? But not what ought to be. It endeavors to free
the science of law from all foreign elements.8
Kelsen consider law as a norm. Each norm deprives its validity from a higher ground norm.
All norms are ultimately dependent on the basic or ground norm. The ground norm does not
derive its validity from another norm or rules. Kelsen relates the validity of a rule is valid not
because it is likely to be obeyed by those to whom it is addressed but by virtue of another rule
importing validity to it.
Hans Kelsen lived between 1881 and 1973 during the era of monopoly capitalism. His view
is capitalistic aimed at maintaining status quo when the state is effective. Alternatively it
supports anybody who has acquired power by a revolution irrespective of its credentials. Han
Kelsen‘s theory can be looked at in light of the cold war after the ―open door‖ policy of USA

7
ibid pg. 33
8
ibid 251
which allowed for the imperialist powers to vie for the former colonies where the later
governments where unstable.
We also have other schools of law. These developed alongside legal positivism in the 19th
and 20th Century. These other schools are of less significance to the schools discussed.
There is the historical school of jurisprudence, which regards law as that laws which grow
with society. The sources of law are the customs of various societies. The sociological school
regards laws as a means of controlling and developing society. It claims that the law is used
to help social progress.
The realist of pragmatic school regard law as any code of law which has come before and
interpreted by the courts of law ―prophecies of what courts will do‖ the natural or ideal
school consider law as part of man‘s nature of any law does not have an element of morality
in it, it is not law.
The Vienna school claims law must be free from ethics, politics, sociology, history and all
social sciences as such it is impractical.
Most of these schools developed in the capitalist epoch. Their interpretation of law is
metaphysical and idealist. Apart from the historical school the rest do not consider the
historical development of law in the context of the economic material situations it operating
in.
Salmond defined law as the body of principles recognized and applied by the state in the
administration of justice, in other words law consists of the rules recognized and acted on by
the courts of justice9 the absurdity with this view is that while it recognizes precedents as a
source of the law it refuses that name to statutes and customs until both become precedents
by being embodied in judicial decisions. The logical conclusion is that precedents alone are
law.10
Savigny the leader of the historical school does not give a strictly formal definition of law but
merely describes it as an aspect of the total common life of a nation, not something made by
the nation as a matter of choice or convention,
Sir Paul Vinogradoff, who himself wrote two volumes entitled out lines of historical
jurisprudence, is however, not an orthodox member of the historical school. Rather he
believes that recognition, by the members of a given community, of certain rules of behavior
as binding upon them, gives those rules the stamp of law. He defines law as a set of rules
imposed and enforced by a society with regard to the attribution and exercise of power over
persons and things.11
Anthropologists like Hartland, Hobhouse define12 law as a body of rules enforced by an
authority independent of personal rules enforced by authority independent of personal ties of
kinship and friendship. Whereas Merett, defines law as the authoritative regulation of social

9
J. salmond, jurisprudence 10TH edn 1946 pg. 41
10
j. c Gray, The nature and sources of the Law, 2ND edn 1921
11
At pg. 59 of his Common -sense in law
12
Morals in evolution pg. 73
relations. 13 And Roscoe Pound defines law as, „social control through the systematic
application of the forces of politically organized society.
It‘s precisely because of the inadequacies of the current legal theories that Dr. A. L Goodhart
has recently suggested this definition of law „law‟ he says is any rule of human conduct
which is recognized as being obligatory14 by its members. this recognition must be in
accordance with the principles of their social conduct, an accepted norm of behaviour which
the vast majority of its members regard as absolutely necessary for the common weal. This
determinant of the ethos of the community is its social imperative.
In conclusion therefore following the above discussion to obtain an absolute objective theory
of law is difficult this is so because knowledge is dynamic. Legal jurist‘s interpretation of law
is determined by value judgments and the context of social development of historical
movement the interpretation is made. The use of words and definition differs from one school
of law to another.
However in relation to all the existing theories of law the Marxist theory of law is objective.
As already discussed it looks law from the historical perspective and dialogical materialism
approach. It explains the law in the socio-economic circumstances it operates. It also explains
why the other legal jurists explain the law in the way they do. And therefore it‘s true for one
to say, that scholars have found the definition of law difficult because the theories of law
begin from different premises and therefore non comparable. Despite that however the
Marxist theory seems to provide an objective theory of knowledge.

SANCTIONS

QUESTION: “The essence of the legal system is the inherent factor, based on various
psychological factors that law is accepted by the community as a whole as binding and
the element of a sanction is not an essential, or perhaps important, element in the
functioning of the system.” Critically discuss whether this quotation is suitable to
describe the character and functions of law in Uganda. Present practicable examples
(both legal and non-legal) to support your arguments.

The approach of the question.

1. Define law
2. Define the legal system
3. Give the brief qualities of a legal system
4. Define what a sanction is.
5. Show where the extract was got from.
6. Give the person view.

13
See his article „law primitive „ in Encycl. Brit. Vol. 13 pg. 781-2
14
See articles entitled „The importance of definition of law‟ at pg. 106-9
7. Areas where there are no sanctions but the characters and functions of law are observed.
8. Give the reasons why a sanction is needed relating to whether it is suitable to describe the
character and function of law.
9. Take a stand and conclude the question.

The word law does not have a universal definition. However, law can be defined as a regime
that orders human activities and relations through systematic application of the force of
politically organized society, or through social pressure, backed by force, in such a society;
the legal system.15[1] A legal system is one that is characterized by a certain kind of
supremacy within its territory and independence of other system.16[2] According to Hart‘s
definition, Uganda is also a legal system since we do have the Constitution of the Republic
of Uganda 1995(as amended) as the supreme law Article 2 which governs the society and
having the parliament as the law makers as provided in Article 79(1) of the Constitution.
In brief, the good legal system must have its laws being general; be well promulgated;
be fair and just; be clear; be predictable; and flexible. The qualities of the legal system were
laid down by Prof. Lon L. Fuller. The features also do bring out some characters of the law.
Therefore a good legal system must entail the features that Fuller laid down.
A sanction is a penalty or coercive measure that results from failure to comply with a
law rule, or order.17[3] The fore a sanction is like a punishment a person gets after he or she
has broken a law that was set up in a community. Today, although some laws are formed
without sanctions as it will be discussed later, a sanction is one of the features of law. A law
has to be made and a sanction accompanying it. This can be witnessed with criminal law if
there is no sanction provided, that law provides that the misdemeanor will be punishable with
imprisonment for a period not less than two years.18[4] This generally shows that laws are to
be backed by sanctions as a feature.
The quotation that is given was got from Lloyd’s Introduction to Jurisprudence 6th
edition, Sweet and Maxwell, London 1994 at 222 by M.D.A Freeman. In the statement,
Austin. L. Goodhart was criticizing Austin‘s view that law needs sanctions in the society so
that it can operate very well. Although Hart had such a view that sanctions are not needed in
the enforcement of law, Austin was supported by H. Kelsen in his Pure Theory of law saying
that sanctions are needed in society so that the law can be enforced.19[5] Before I do
propound on the discussion, I would like to give a personal view about sanctions. We all

15[1]
Black’s Law Dictionary 8th Edition: Bryan A. Garner. Page 900
16[2]
The Concept of Law 2nd Edition: H L A. Hart. Page 24
17[3]
Black’s Law Dictionary 8th Edition: Bryan A. Garner. Page 136
18[4]
The Penal Code Act Cap 120
19[5]
Llyod’s Introduction to Jurisprudence 8th Edition: M.D.A FREEMAN. Page 311
know that the most important element of law is to ensure justice among people in the society.
Sanctions are therefore seen as threats that at the end will not bring about justice. The maxim
of equity says equity shall not act in vain20[6] therefore, law does not want leave any
aggrieved. If sanctions are to be followed, it means the defendants in a suit have to get
punished which will not be the end result of equity or achieving justice. However, different
scholars and idealists do have different approach to such a situation. Some do uphold the
need of sanctions while others do not. The question therefore requires of us to discuss
whether with or without sanctions, the quotation will be able to describe the character and
functions of law.
According to Hart, he saw that really sanctions are not essential and even less
important in the functioning legal system. He said that law is accepted by the community as a
whole as binding. Thus according to Hart, prima facie law is to bind all the people in the
community thus the sanction bit is not needed. A rule is regarded as obligatory that a measure
of coercion may not be attached to it, it is not obligatory because there is coercion.21[7]
Thus, obedience has to be observed if a law has been passed from the superior to the common
man. Hence there is acknowledgement of the legitimacy and hierarchical subordination
between the subject and the ruler. Since there is that mutual understanding, sanctions are of
no use and there achievement of justice because of no wrangles, and opposition which is the
aim of the law. This can be portrayed in the case of Buganda Kingdom. The Baganda do
submit to the laws that King offers though this may not be binding to the whole system but in
Buganda it will have power. There is the hierarchical subordination without any sanctions
given to the people in this case the Baganda.
Hart also gave an example of a family and at school. The social obedience is
internalized in the structure of mental attitudes of the individuals thus the condition to give
voluntary obedience to anyone. This scenario, there is no sanction that is being put in place to
enforce obedience in the society. This will also run to people obeying the law. An example,
in a family, children are brought up knowing that elder people are to be respected which will
also in many times lead them to obey the law. In the law of succession for example, the law
does not provide a sanction that any person shall be penalized if he has refused to take up or
has taken up the property given to him. However, people do observe the law of succession by
following the Succession Act Cap 162. In the end, the disputes will be minimized since the

20[6]
Equity and Trusts in Uganda: D J. Bakibinga. Page 73

21[7]
Llyod’s Introduction to Jurisprudence 6th Edition: M.D.A FREEMAN. Page 222
people do have a guideline to follow if there is any problem regarding succession of property.
In that regard there is no sanction provided but the law has solved the disputes for example
fighting over the deceased‘s property section 27 of the Succession Act.
In Hart‘s view, sanctions conceal and distort the real character and functions of law.
This is because the sanctions do not explain why the law has changed but they just place an
emphasis on fear. This does not at the end lead to protection of the people for example their
values for Article 29 of the Constitution of the Republic of Uganda (as amended) provides for
the freedom of conscious, expression, movement, religion, assembly and association.
However, there will be fear among people to express their right like movement because there
is a sanction for criminal trespass under section 302 of the Penal Code Act Cap 120 for
example the Karamajongs who are pastoralists. Thus the need of the law to protect the values
of the society is not fully achieved. Hence sanctions are not of any essential value in the line
of describing the character and functions of law in the legal system.
Hart also rejects the model of law based on coercive orders.22[8] This was so
because Austin and Bentham dealt mainly on the criminal law which basically provide for
sanctions. However, there are various laws that do describe the character and function of law
in a system without providing a sanction. An example is the international law. There are no
sanctions that are provided yet it is universal. This is one of the characters of law. Law has to
be uniformly applied. This can also be evidenced in Isaiah 14:26-27 which says that law is a
plan devised against the whole earth, and this is the hand that is stretched out against all the
nations…‖ Therefore, law is to be uniform which is evidenced in International law. Although
there are no sanctions in International law, the main aim of the law is to ensure justice, peace,
maintain order among all nations which is the function of law. An illustration can be drawn in
Northern Uganda where various countries like U.S.A and Britain engaged in the maintenance
of peace of peace and reconciling the rebels with the government instead of penalizing the
rebels. This is also evident in our Amnesty Act Cap 294 under section 3 which provides for
the grant of amnesty to any person. Under the Act, there are no sanctions provided thus
sanctions are not that essential and also important in the legal system.
Hart‘s argument can also be evidenced in the Investment Act Cap 94. The Act just
provides for the procedures of the investors for example in the in Part III of the Act but the
sanctions are not given. There is characteristic in the Act which is that the law is specific.
This is so because it only applies to the investors only not to the consumers thus the
Consumers Act. In the end run, the law recognizes capacity in the persons and authorities

22[8]
The Concept of Law 2nd Edition: H L A. Hart.
who have to influence others. An example in section 2123[9] it provides for the exemption of
investors from import duties and sales tax. The law can therefore influence the society
(investors) without necessarily using sanctions.
The law is also not necessary backed up by the sanctions as Hart says. In Uganda,
we do have the customs that different types of tribes do practice. These customs are however
not backed by the sanctions as long as it is in line with the Constitution that is Article 2(2).
An example can be drawn from witch craft practice. In Salvatori Abuki v A.G Cc 1/97s the
issue was whether the petitioner could be penalized and banished from the community.
However, he petitioner could not be convicted because practice witch craft was not illegal
because it was provided for in the Witchcraft Act Cap 124 and no sanction was provided in
the Act. The law therefore encourages equality among the people thus like freedom of
worship that is Article 21(2) of the Constitution
Other areas where there are no sanctions include the customary law for example
under the Customary law marriage Act 284 it does not provide for sanctions yet people do
follow thus the law observing human rights like freedom of marriage thus section 4 providing
for celebration of customary marriages for example the Baganda practicing polygamous
marriages which are recognized by the law. The law of Evidence is also another area where
law is not backed up by sanctions. This is evidenced in the Evidence Act Cap 6 where the
giving evidence to help the court to derive to justice but there are no sanctions that are
provided in the Act that any party will be penalized if one did not give evidence. In contract
law there are also no sanctions so is in family law.24[10]
The statement can also be upheld by reference to Order XII Rule 2 of the Civil
Procedure Rules. The rule provides that the parties can first settle the dispute by Alternative
Dispute Resolution before going to court. This is because it is cheap, fast, and sanctions.
However, justice is reached at the end. Hart believes the law is an inherent which has to be
binding from the ruler to the subject thus there is no need of sanctions in the legal system
since the character and functions of law are being achieved.
However, on the other hand sanctions are needed in the legal system thus to
describe the character and function of law. The essence of law is an organization of force, and
law which rests on a coercive order designed to bring about certain social conduct.25[11] The
statement was made by H. Kelsen who is in support of the sanctions.

23[9]
The Investment Act Cap 94
24[10]
Key Issues in Jurisprudence 1st Edition: Omony John Paul. Page 44
25[11]
Llyod’s Introduction to Jurisprudence 8th Edition: M.D.A FREEMAN. Page 311
Sanctions are a key characteristic of law that stipulates that coercion ought to be
applied by officials where delicts are committed. Thus law is to punish wrong doers which
may change them to better persons. An example is the Penal Code under section 286(1)(a) a
person who is convicted of robbery by the magistrates court is to be imprisoned for a period
of ten years. Therefore, one after the sanction can lead and not to commit the offence again.
Thus a function of facilitating orderly change and protection of public order will be achieved
by the law. This is also under the same section, if one convicted by the High Court he is to
serve a life imprisonment thus eliminating such characters in societies.

Sanctions also help in ensuring peace. This is achieved through the law
providing sanctions like imprisonment for a period not exceeding ten years in case of theft
under section 256 of the Penal Code Act Cap 120. Sanctions also help to preserve the human
rights. This is well evident in Uganda in the way that the Constitution under Article 22 it
provides for protection life. Thus it provides a sanction in section 189 of the Penal Code that
whoever commits murder shall also be killed. Such a sanction makes the people also to
observe the law though some do not an example is Daru who killed Gen. Kazzini.
Kelsen said that the notion of social order requiring no sanctions either looks
back to a Golden Age or forward to a Utopian society. He refers to such society as negation
of society. In the actual sense, the is no golden age today take an example of human sacrifice
in Uganda, homosexuality therefore, sanctions are needed to penalize the law breakers in
order to protect the values of the society which is one of the end results of the law thus
ensuring justice.
Sanctions are also essential in the way that they guide human conduct thus
helping in deterrence hence helping in the enforcement of law. In the end, achieving justice
among the members of the society. This will be so because the sanctions will be a threat to
the society. An example is a sanction of death penalty in section 189 of the Penal Code Act.
Every one really fears death thus people will flow the law because of the heavy punishment at
the end. Sanctions are also essential in the way that instead of believing in the inherent factor,
they provide incentives for obedience of the law. Thus, the acknowledgement of the
legitimacy between the ruler and the subject. This is so because of the threat of the sanctions
an example Article 3(2) which provides that any person who tries to over throw the
government shall commits an offence of treason which be punished by law for example
section 25 of the Penal Code Act that provides that concealment of treason is punished by
life imprisonment. An example is when Dr. Kizza Besigye was tried in court for treason
because he was a suspect. Therefore, Thomas Hobbes said, ―Covenants without the sword,
are but words, and of no strength to secure a man at all.‖ Sanctions are thus an essential
feature in the legal system.
In conclusion, although Austin, Kelsen and Hobbes do support sanctions as an
essential an important element in the function of law, on lesser extent I do agree with because
the main issue we do need the sanctions to supplement the law in order it can be observed.
However, I do take Hart‘s view that sanctions are not essential and important because the act
as threat, the violate the maxim of equity thus making it act in vain cause one person has to
suffer a wrong g yet if alternative dispute resolution is used, we cannot have equity acting in
vain. An example of capital punishment is also not the best solution because the wrong doer
is not punished but has just died which is not the end outcome of the law. Therefore we can
have laws being in place describing the character and function of law not necessary having
sanction in place.

BILIOGRAPHY

STATUTES:
1. The Constitution of the Republic of Uganda 1995 (as amended)
2. The Customary Marriage Registration Act Cap 248
3. The Evidence Act Cap 6
4. The Succession Act Cap 162
5. The Penal Code Act Cap 120
6. The Amnesty Act Cap 294
7. The Civil Procedure Rules (S.I 71-1)
8. The Investment Code Act Cap 92

TEXT BOOKS:
1. Llyod‘s Introduction to Jurisprudence 6th Edition: M.D.A FREEMAN
2. Llyod‘s Introduction to Jurisprudence 8th Edition: M.D.A FREEMAN
3. The Concept of Law 2nd Edition: H.L.A Hart
4. Key Issues in Jurisprudence 1st Edition: Omony John Paul
5. Equity and Trusts in Uganda: D.J.Bakibinga
6. Black‘s Law Dictionary 8th Edition: Bryan. A. Garner
7. Good News Bible 3rd Edition: Dr. Robert A. Couric
8. The English Legal System 3rd Edition: Jacqueline Martin

COMPILED BY;
TUMUHAISE ANTHONY FERDINAND
[email protected] AD MAJOREM DEI GLORIAM