#1 30-07-24
Jurisprudence
Some call it Legal philosophy/legal theory but put in the simplest form Jurisprudence concerns
itself with the competing definitions of law and the role of law in society
I.e a worldview of law as a phenomenon
There are competing definitions depending on ones world view.
These types of world views are to be learned…where you stand makes your worldview of what
an Elephant is
Natural law. ……Vs……..Legal positivists
Ronald Dworkwin theory of Law
Legal realism
Historical school of law
Critical legal studies - offshoot ; feminist( patriarchy) , critical race theory
Marxist Theory of Law
Sociological Jurisprudence
African Jurisprudence -
There is no one single imitable definition of law - depends on ones world view
Not an exhaustive list
Summary
Natural law - all law is subjected to a higher moral law, any law which is against the higher moral
law is not law at all…in nature there is order…initially the source was God, with time it has
changed..it is from reason
There Factors that made it change ( see french ) .. naturalist do not believe in abortion for
example.. Parliament will not make laws that are unnatural..law should confirm to the higher
Moral law . This higher moral law is everywhere, doesn't change even without social intercourse
- anything to contrary is invalid
Legal positivism
Law is law regardless of it's moral content …morals are irrelevant
Natural law on the other hand is everywhere..not rule of men .. anything done in just one place
exclusively is man made law - natural law is not geographically excluded
Ronald Dworkwin - law is a formation of rules are and principles
Legal realism - not what you find in statute but how a judge interprets law is what the law
is..judges do not operate in a vacuum/not ideological virgins
Historical School
One must understand a law's historical development and background to appreciate its meaning
Critical legal studies
The formal law itself does not serve what it prima facie seeks to serve e.g right to legal
representation hinges on finances…feminist view. Law is not neutral
Judges themselves play politics. They arrive at decision first then they justify …fact,/rule
skeptics
Marcism
Law is used to oppress workers
Sociological
Law can be used for social engineering - abolishment of martial powers / Decriminalization of
same sex relations / age of consent
African
All these are western inventions. Botho.
#2 01-08-24
Why we learn jurisprudence
1. Some say the principle reason is intellectual
To get a clearer understanding of law
Others say it sharpens your skills because as a lawyer you're in the business of legal reasoning
so jurisprudence equips you with legal reasoning and to be a shrewed tactician in law - which
arguements to make, witnesses to cal firstl etc
,
- when to strictly argue from statute and precedence
- When to reinterpret the law
- When to distinguish precedence
- When to appeal to policy
- When to appeal to justice
- When to appeal to the good sense of the judge
2. Jurisprudence is valuable in times of legal uncertainty and complexity
Madzimbamuto vs Ladnea-burke
- Case from 1973
- Southern Rodesia colony of the British
- Madzi arrested under new rules and he challenged the validity
- Case went to privy council
3. It assists in deep moral and political isseues which may be raised in a legal arguement
and judicial decision
Schools of thought
Natural law
The main thesis of natural law can be encapsulated in the following two statements
A. Law cannot be properly understood outside the precepts of morality
B. There is a higher moral law which cannot be surbodinated to human made law
any law that violates morality is not law lest it doesn't have the quality of being law - should not
be obeyed - “ an unjust law is not law at all “
Source: differs from subset to subset of natural law
Some say it's derived from human nature itself, others say it's source is God , some water from
human reasoning
Whatever the source the overriding idea is there is a higher law that require a human
legislature.
Human made law is subjected to that higher Moral law
1. Classicul doctrain of Natural law
Arristotal
Cicero
2. Medevil doctrain
Scholars like Saint Thomas Aquinas
3. Modern doctrain
Ugo di grout
Crotioas
John locke
John finnis
Lon Fuller
#3 15-08-24
Natural law idea may be summarized as the thesis that
a) Law cannot be properly understood outside the precepts of morality and
b) There is a higher moral law Which cannot ve subordinated to human made law
The latin maxium - lex iniusta non est lex ( an unjust law is not law at all) underrscores the main
idea of natural law
Tests will ask you to analyse a text from perspective of Natural law
Natural law is universal, immutable so that it us available at all tikes and in all places. It is
available in the same form and content….
Natural law is a higher law - superior to all law's made by our Parliaments
What makes it natural is that it is discoverable by reason..human beungs has the capacity to
ascertain natural law by use of his natural intellect
There are 3 schools of thought
Classical
Medieval
Modern
Aristotte - distinction between natural law on one hand and positive law on one hand is crucial -
it is only natural law which expresses natural justice
Cicero added to aristotle - true law is right reason in agreement with nature, it is of universal
application…….
Unlike his colleagues who based natural law solely on the nature of human being based it kn
the authorship of God…
Classicul period stems from 300 bc
With it's growth after the death of Jesuss Christianity strived over roman abd greek paganism…
Church sought to impose it's conception of law on the state with the basic tenets that natural law
owes its origins to God so that divine revelations was the basic premise to formulate it..
The church removed reason and substituted with divine revelation
St thomas Aquinas leading midevil theorist
His theory creates 4 types of law
1. Gods law
2. Divine law
3. Natural law
4. Human law
Read locke finnes fuller
#4 20-08-24
Modern notions of natural law…
The period following the Acquinas era led to legal theories who evolved a natural Theory
removed from the underpinnings of Gods will and commands
The same process of reasoning from nature was adopted to involve a new conception called rge
Theory of Natural Rights.
The theory of natural Rights xame up with what is termed simple and indisputable principles
which merged into the inalienable rights of human beings
Infridements of these Rights was so unacceptable as too ebtitle people to revolt
Justified American revolution
Main issue is secularization of Natural law
Scholars - Grotius and John loche
Grotius “ what we have been saying would have a degree of validity even if we should concede
that there is no God of that the affairs of man are of no concern to him….. Just as God cannot
cause 2 * 2 not to be equal to 4 he cannot cause that which is intrinsically evil to be un evil “
John Loche - greatly influenced by Grotius…he emphasized that human beings rationality is the
main source of natural law
He devolved rhe Theory of social contract whose main view was that hunan beings subject
themselves to rhe political power of others by way if consent ….
- If government opresses then it's nor meeting its ends of social contract
The law of nature according yo him gave each individual personal liberty
However in order to preserve safety and peaceful living, hunan beings consent to the taking
away og part og their natural Liberty in order to create civil society
Government then us the means par excellence of remedying some of the defenciees of the
srare if nature
This means government gas limited authority
These limitations are imposed by reason
It must only exercise such power which is limited to the public good of the society
Commentary
Towards rge end of 19th Century it was clear that although natural law idea had largely been
taken by positivist theory, they later had lost its momemtum..
There was a need to revive natural law
The reason why Natural law suffered a major blow was that after the French Revolution there
was a reaction to the ideas of natural law and the bourgeoisie who had used natural law to
overthrow feudalism were anxious to maintain their hold on power
Natural kaw undermine that hold
Later stage was finnis and fuller
Hitler - 3ed reich put to the forefront need for natural aw
John Finnes ..Natural law and natural rights…
Modern theorist
A set of basic principle ( basic humn goods) Which indicate the basic form
#5 22-08-24
John N Finns Natural law and natural rights
What is natural law?
A set of basic principle ( basic human goods) Which indicate the basics forms of human
flourishing: life, knowledge, play aesthetic experience, friendship, practical reasonableness and
religion.
The basic principle/human goods are achievable only through community with other humans
and community requires some legal system to exist and flourish
External law is from the nature if human beings rather than a divine source
Lon Fuller and the Morality of Law
Attraction of natural law:
Fuller rejected Christian doctrines of natural law and their belief in a higher law emanating from
God
Rather he felt attached to natural law by the fact that Natural law theories have what he called q
family resemblance in terms of their search for principles of social order
Hart vs Fuller debate - whether law encampuses Morality - ca 1
Hart vs Delvin Debate ,- should we use Law to enforce Morality e.g should the law be used to
stop sex work if it's viewed as immoral
N.b what is the subject matter of the debate
Which side do you support and why
Is this debate applicable in the modern landscape or Botswana' and why
Triangulate - what is the issue - what do others say - what do i say
Application
Case on law and morality
Airedale NHs Trust v Bland [1993] HL
- law and morality - whether withdrawal of artificial feeding lawful; patisnt in persistent
vegetative state: maintenance of life bt artificial feeding
- Held: treatment could be properly withdrawn in such circumstances because the best
interest of the patient did not invokve him Being kept alive at all costs
- Rationale: feeding him was treatment and that treatmemt would not cure him and
therefore, was not in his best interest. It was lawful for Doctors to stop feeding him
artificially.
knuller v Dpp 1974 HL
- D published a gay contact magazine thereby conspiring to corrupt public morals. held:
Guilty
Pretty v The United Kingdom (2002) ECHR
Law and and morality - right to die - Euthanasia
Diane Pretty was terminally ill with Motot Neurone Disease. She wanted….
Held: Permission refused. The Dpp did not have the power to give undertaking that her husband
would not be prosecuted if he helped her commit suicide
Next topic
Postive law
Betham - founder - utilitarianism
Admired by Prof Hart - concept of law see debate with fuller and Delvin
Hart vs Kelstein - the pure theory of law
#6 27-08-24
Legal positivism -
Like natural law scholars - they differ in detail but there is one golden thread which binds them
1. No element of moral values enters the definition of law - a direct attack on Natural law
2. Law is what it is not what it ought to be
Its goodness or badness is irrelevant to its values of law - law is what it is not what it ought to be
No element of moral value is ….
Legal provisions are identifiable by empirical observable criteria
One can objectively identify them - such as legislation
Legal provisions are what acceed and identify law
Law is what you can objectively identify - this is the legislation, custom and practice not revealed
by divine Revelation ..
There are 4 prominent scholars
- Jeremy Bentham
- John Austin
- Professor Hart
- Kelson .
These main jurists -
There is no necessarily question between law and morals - law should be separated from what
it is with what it ought to be
Jeremy Bentham
Well known for what is called the command theory of law
For him he masterminded the doctrine of utilitarianism
Every law should be judged for it's goodness or badness by seeing its overall effect on human
happiness
Wanted to craft scientific jurisprudence - don't look at the morals but what maximizes happiness
If it maximizes happiness - good law - if not its a bad law
His conception of law - author of the famous conception of law “ law is a command of a
sovereign backed by a sanction”
Three elements
- command
- Sovereign
- Sanction
Command - found in statute, firecticesu
Sovereign - any person to whose will a political body/peron or assembly of persons pays
obedience and does so to the preference of others
There should be habitual obedience to the sovereign
Sanctions - penalties: motivate complaince
John Austin
A disiple of bentham - set out to describe the law for what it is - distungued from other
phenomenon
he also used command theory - a wish or desire communicated by a rational Being that which
another rational being shall do or not do…
an evil t will proceed if you refuse to follow that commmand…. ( A sanction)
I.e a command is an expression of intimidating
Anything that is not a command cannot be law
Customary law should be excluded fron the ambit of jurisprudence - international law is not law :
no sanctions - weak in terms of enforcement
However not any command is law
To be a rule of law a command has to satisfy the requirement of a ..…
Can a reward be a sanction ..no
A sanction Must be a negative thing
A command should be issued by a sovereign
A command issued by the sovereign - positive law : posited by the sovereign
Any command by any other person than the sovereign is no law and is not the concern of
jurisprudence
Sovereign is not a person or particular person but an office or institution which
embodies supreme authority.
A bulk of society …there is a sovereign when two conditions are there
- Bulk of society in a habit of obedience to a common a superior
- That superior does not obey in a habit
- a human superior
The sovereign is not bound by any divine power
Like Bentham he was not prepared to accept natural rights as it is not part of positive law -
dismissed social contract theory - those in power are those with power
Kelsin pure theory of law
The pure theory is a theory of positive law - exclusively concerned with the accurate subject
matter of each law - question is what is law not what it ought to be - jurisprudence is a science
not politics of law - let's just focus on the law Itself - pure theory
Positive las is a system of norms which lays out a standard of law which should be followed
..prescriptive
Has norms which are herichichical in nature …there are grand norms : constitution
Other acts and what not derive their authority from the constitution
Constitution is grand norm - what gives it validity is the previous constitution and so forth - who
ordained the first constitution?
As long as those who have taken grand power are in effective control - set the nee grand norm:
courts have used this when there is a coup to assess who is in power
What makes law impure is moral and ethical considerations - law is hierarchical in nature
Hart
Jurisprudence doesn't accommodate a rules
Law , even criminal law applies generally - even to those who command it
Some laws does not impose duties but impose powers and cannot be reduced to a coersive
model
Can't have unfettered sovereignty - ignores continuity of law…
Law is rather a system of rules - legal system not a mere assembly of commands
Two types of rules…
Primary rules - duty imposing rules - what should be and not be done
Secondary rules - specifies the way in which primary rules may be conclusively ascertained,
introduced, eliminated and varied
Power imposing
- rule of recognition
- A rule of change
- A rule of adjudication
Law is a system of primary and secondary rules - law ,
What makes a law is not that it is a command but it is recognized as a law by the system
The relationship between Law Morality - raised in the hart Fuller debate and hart muller debate
