SCHOOLS OF THOUGT

Dr Mrs Erhun.

-Development of Natural law

-Factors for the decline of natural law.

-Who are those philosophers that made it rise again.

25/09/19.

HISTORY OF NATURAL LAW SCHOOL:

-Ancient period

-Roman Christian period

-Modern period

-Middle period

-Contemporary period.

Under the ancient period, there was the:

(pre-socratic age). This was the period of philosophers that existed before socrates. Eg, Alexander,
herracletus. This people want to discover the element responsible for the unity in diversity of the
universe. Thus this people identified the natural law that existed right from time.

Philosophers of the socrates Age: These philosophers are classified under what is called the

1. Sophist philosophers and

2. Stoic philosophers.

These people believed that the law of nature should be obeyed at all times and that it is in obedience to
the law of nature that man find his greatest fulfilment.

The stoics are the people that developed 'New scholastisism'. This is the belief in God. Although this has
always been there but came out in a new way. These philosophers conceive the world as a common state
and identified God as the ruller of that state and that all men belong to the same common wealth of that
state.

Nb, MARCUS CICERO introduced the natural law theory into the legal system of Rome.

16/10/19
THE MORDERN PERIOD IN THE DEVELOPMENT OF THE HISTORY OF NATURAL LAW.

the philosophers of this period were mainly concerned with Natural right. During this period, there were
philosophers such as (JOHN LOCK, THOMAS HOBBS, BRUCKHEIMERUS ETC)... This natural right
perspective supposes that any leader should be restricted in the exercise of his power by this natural
right. This natural right sets limit over any power any leader can exercise.

A. BRUTUS

He introduced the circular dimension into the natural law theory. He removed it from the theological
framework into which it was placed by past philosophers. He was also able to identify 3 types of law:

-Natural law,

-Positive law and

-Law of nations.

Brutus regards natural law as above every other law.

B. THOMAS HOBBS,

He saw natural law as the law of reason. He identifies that the instinct that drives a man is by 'self
preservation'. The only way that man can achieve this desire is that man lives in peace & harmony. To
him, the only way to attain this hight in the society is to abide by the principles of natural law.

C. JOHN LOCKE

He only favours natural law. He saw this as the voice of God in man and that it is through natural law that
God intends to govern man's actions in man.

D. JJ ROSEUO

He is of the opinion that "man is born free but he is everywhere in chains. According to him, Man has no
right to renounce your freedom but can only restrict this freedom voluntary by entering into a social
contract"

He came up with the theory of the 'general will' which is always right and always for the good of the
people. In his view, the ruller is to be guided by the general will in a social contract. The social contract
involves the undertaken that anyone who refuses to Obey the general will shall be compelled to do so by
the general body. (this calls for revolution against any leader that refused to follow the general will).

E. EMMANUEL KENT

He gave recognition to two types of natural law. Namely;

-physical natural laws and

-moral laws of nature.

He believed in the principle of the autonomy of the will. He made man's 'natural will' the author of
Natural law. He established the concept of the 'Kingdom of ends' which he regarded as the union of all
rational beings who are ends in themselves and who are both subjects as well as makers of the universal
law which they impose on themselves.

F. DABIN

He was of the view that any law which fails to assist in th e realization of social ends should be regarded
as contrary to the principles of morality and public good.

G. LE FURE

He believed that law must resort in the good of the people and that it is only those legislation which
reflects the spirit of natural law can be based on the sanctity of human obligation. Essentially, this is
saying any law that doesn't reflect the spirit of Natural law, we don't have any business obeying them.

CRITICS /DECLINE OF THE NATURAL LAW SCHOOL

Overtime, natural became adulterated through the different schools that began to propergate it. Some of
the things that led to the decline of the natural law doctrine includes:

-Attempt to do away with God as the originator of natural law

- attempt to attribute natural law to the law of human reasoning. Also

-the historical school of Jurisprudence didn't take kindly to the natural law doctrine. According to them, it
is impossible for human reason to determine eternal or immutable principles that transcends history.

-the scientific school of Jurisprudence on the other hand, were of the view that reason cannot be used to
discover eternal truth.

-the introduction of the circular dimension of the natural law by philosophers of the modern period.

The decline of the natural law school gave room to 'Nasism and positivism' and this led them to ask
questions as to the fact that we haven't gotten it right on what constitute law.

The decline of the natural theory led to the flourishing of positive law theory and the nasist regime. The
result of which was that the state could enact and legitimize unjust laws design to serve their own vein
glory rather than the common good. Such laws became burdensome to the people, but non the less were
binding on them. The atrocities committed against humanity by the nazi regime led to the revival
movement of the natural law doctrine once again. Jurist soon realized the fact that the concept of law is
not fully exhausted by the positive laws of the state. The experience of the Nazi regime led the
philosophers of the 19tg century to reiterate the question "what is the nature of Law?" This led to the
search of legal rules that will correspondence to human nature and which can be transported into positive
law by the legislature. This led to the clamour for the return of natural law theory on which positive laws
is to be based. Philosophers such as HERT, BERNARDINO, etc... Sought the revival of the natural law
doctrine. According to them, natural law isn't only the criteria of validity of all positive laws. It also
marks the limit of the powers of the state.

According to JOHN FINNIS. The question of the natural law is simply that of 'what is good and desirable
for man' and that the validity of positive law is derived from rational connection with natural law. In
other words anything in accordance with natural law should also apply in positive laws. Positive law is to
be based on a theologically founded theory of natural law and that positive law is to be obeyed to the
extent that it is in agreement to the precepts of natural law. To this end, the Constitution of any nation or
rule of law is to be obeyed so long as it is not contrary to natural law.

THOMAS AQUINAS was of the view that the interest or the common good should constitute the subject
of legislation and that if the state injures the material interest of citizens, it amounts to a breach of the
rules of Law as well as the basic elements of the social contract between man and the state.

MRS BEJIDE; SCHOOLS OF THOUGT CONTD).

POSITIVIST SCHOOL:

This is otherwise known as legal positivism. This was a British movement that started around the
begining if the 19th century. This was more like a revolt and clamouring for a law reform. The opine that
it is not logical to say that law must flow from reason or nature/intuition. They believe hat the approach to
the study of Law should be more scientific and not something abstract.

What then is legal positivism? Prof HLA Hart tried to broke this up into 5 tabulation.

1. Plsitivist generally believe that laws are commands.

2. When we analyse legal concept, we should do so aside other legal concepts such as social norms, etc...
Analyse them as they are. Legal concept are legal concept and we must see it as just what it is. This is the
law. The law is the law and devoid of any historical approach.

3. When making decisions, logic is applied from predetermined rules. Our sense of logic should be
deduced from rules that already exists.

4. Moral judgements are devoid of rational argument or any evidence of proof. It is ambulatory.

5. The law is always 'as it is' I. E (positum) meaning positivism; as opposed to the law as it ought to be.
This is the most popular of all the submissions of legal positivism.

Proponents:

BENHAM, AUSTIN, HANS KEELSON

29/10/19.

A. (JEREMY BENTHAM) BRITISH 1748-1832.

He is properly to be regarded as father of English. Jurisprudence. Some people feel that Austin should be
the father. Bentham wrote a book "an introduction principles of morals and legislation". Here he try to
distinguish punitive and civil laws.

Also, bentham is also know as the major brain behind codification of the English law because at a time
that he lived, common law was not written.

Bentham defined law as "an assemblage of signs, declarative of a volition convinced or adopted by the
sovereign in a state concerning the conduct to be observed in a certain case by a certain person or class
of persons who in the case in question are or are supposed to be subject to his power".

Bentham says every Law must be considered in 8 different respect:

I. Every Law has a SOURCE, an origin. He says the source of the law is the will of the
sovereign. He may personally issue the laws by his own right or adopt laws that were issued by
his predecessors or he may adopt futuristic laws by delegating that powers to subordinates. Every
thing centres around the sovereign.

Who is a sovereign? a sovereign is any person or assemblage of persons to whose will a whole
political community are supposed to be in a dispositions to pay obedience (on whatever account,
and that in preference to the will of any other person).

04/11/19.

What is a political community? This is when a number of persons referred to as subjects are in
the habits of paying obedience to a person or assemblage of persons of a known or certain
description (Governor). Such persons all together are said to be in a political community. A
sovereigns power is indefinite but often times, limited by religious or political motivations or
express conventions.

II .SUBJECT OF THE LAW

A subject is a person or thing to which the law is directed to. Eg, if a law is made and it says-
homicide is a crime. It is directed to persons.

A subject can also be 'passive' or 'active'. Eg, the law prohibits stealing. A person who steals is
the active subject and one who a thing is stolen from is the 'passive subject'.

III. OBJECT - the Act or situation the law is talking about. Talking about stealing, the Act of
stealing itself is the object.

IV. THE EXTENT OF THE LAW .

This is the scope of the law. Here, this can either be:

- direct extent of the law. The jurisdiction of the law

-Indirect extent of the law. This is the circumstances surrounding this particular law. I. E, how
do we determine the circumstances that determine what amounts to stealing. Eg, if a child picks
ups something. Would that amount to stealing?

V. ASPECT.

This is what makes a law a law. It can be:

- the DIRECTIVE instructions. Which means the instruction

- SANCTIONAL aspect or PUNITIVE aspect.

This directive is simply the sovereigns will towards directed to to the subjects

Ways in which the sovereigns directive can be given.

a. Command: this is a positive directive. "everyone must pay tax". Positive directive.

b. By prohibition: "no body must take another's life" Negative directive.

c. Non prohibition. This is negative non-directive. This kind of Law gives the subject to do
whatever they want. Eg, "everyone can sit wherever you want".

d. Non-command:

Here, it's just giving the subject options. This js a positive non-directive. Eg,"every citizen is
allowed to vote". If you don't vote, nothing will be done to you.

VI. SANCTIONAL ASPECT:

this is what gives the law it's mandatory nature. This is what gives the law a force. Eg. Don't
come to my class without being properly dressed. If you do, you will be sent out.

The motivation for obedience of a law here could be-fear of a sanction or obedience for reward.

He continues by saying this sanction can be motivated by religious sanctions,etc...

VII. REMIDIAL APPENDAGES:

This comes as a result of already existing subsidiary legislation.

VIII. THE EXPRESSION OF THE LAW.

this is how the sovereign expresses the law. He says there are some laws that are complete and
there are some that are incomplete. A complete law is one that are well expressed. Bentham
prefers the law to be direct rather than for the judges to exercise discretion.

15/11/19
Bentham says there is are two ways the sovereign can express the law.

1. Completely

Bentham is one who doesn't believe that judges should exercise discretion.

-Bentham is of the opinion that the law should be complete in its design.

- he is also of the opinion that a law should be completely integral.

2. he also talks about the unity of a complete law. Eg, 'only one law should address one situation.
E. G the act of stealing should be addressed by only one law

Criticism to Bentham Theory.

[Link] says one act should be addressed by one law. That is not practicable.

2. The issue of remedy for reward. The criticism against this is that not everyone is moved by
reward. So reward as a motive waters down the motive.

3. Bentham viewed a law as always addressing a particular situation.

B. (JOHN AUSTIN)

he was initially looked at as the father of English Jurisprudence. This was because Benthams
work were buried in the library. Austin lived between 1750-1859. He was a true deciple of
Benthams. Austins works are a replica of Benthams idea. His major work was published in 1832
and it's title was "the province of Jurisprudence determined"

Austin described sovereignty as "the bulk of the given society is in the habit of obedience or
submission to a determinate and common superior. let that common superior be a certain
individual person or a certain body or aggregate of individual persons. That certain individual or
that certain body of individuals is not in the habit of obedience to a determinate human superior.
If a determinate human superior not in the habit of obedience to a like superior recieve habitual
obedience from the bulk of a given society, that determinate superior is sovereign in that society
and that society including the superior is a society political and independent".

Sovereignty thus derives it's meaning from obedience. Sovereignty goes hand in hand with
subjection. According to Austin, a sovereigns power is not capable of any legal limitation. His
power is absolute nor is the sovereigns power divisible. According to Austin, where there is no
law there is no sovereign and where there is no sovereign, there is no law.
Law therefore according to Austin is a command issued by a political superior to whom the
majority members of society are in the habit of obedience and which is enforced by a threatened
sanction.

Nb, Austin didn't talk about reward but sanctions. According to Austin, sanctions are motivated
by fear of evils.

The distinguishing factor of a command is the power and purpose of the party commanding to
inflict an evil or pain in any case that the expressed desire be disregarded or disobeyed. The
subject is duty bound to Obey, therefore, command and duty are correlative terms. Sanctions are
therefore the evil which will be incured in case a command is disobeyed or should a duty is
broken.

CRITICISM

1. Austin saw law merely as parliamentary pronouncements; commands. This is limited and
didn't take into cognizance other areas. Eg, company law and contract, etc... Nb, it is not every
Law that deals with commands and threats. They are simply guidelines.

2. Law has more complexities than what Austin sees law as. It cannot just be about command
alone. His view was not holistic.

3. This soverign that Austin describes, does he exist? This can merely be a fictitious character. In
reality nobody is really absolute. Years later, A V Dicey States that your morals can also limit
your power. Also, the subject can decide to revolt against a sovereign.

4. When you talk about a soverign, in actual fact, there is a de facto soverign as opposed to a de
jure soverign. (soverign in fact and law) The de facto soverign is the crown that doesn't
necessarily make law. It is the de jure soverign (Parliament) that actually makes the law. Austin
fails and omitted to make the distinction between who makes the law in England.

5. Habitual obedience isn't the only thing that makes a law a law. Because there are some laws
that exists that are not overtly obeyed. Eg, money laundering law in Nigeria. It puts a limit on
how much you can move from account to account. However, this law isn't necessarily applicable
to citizens not having that kind of money. So Austin Habitual obedience doesn't always score.

6. Some legal historians criticises Austin saying that some laws exist without a soverign. Legal
historians like Maine believes that Austins maxim of " no sovereign no law or no law no
soverign" is not correct. It is a mere reflection of Austins myopic study of just English and
Romance societies. Maine practically says that some ancient societies like Aceantic States, have
their laws rooted in religion and customs and that is what gave birth to laws. Thus, main says that
Austins position cannot be a valid reason in every society.
Also VINOGRADOFF criticizes Austins on the basis that he merely looked at Law from its
formal point of view and that what is law is law. However that he never gave any attention to the
content of the law such that a law with harsh content will still be a valid law.

Another says that if we must look at justice, then we shouldn't say that the sovereign is above the
law. That wouldn't be right. Law cannot be based only on commands issuing forth from a
sovereign. Rather it should be by agreements between the subjects and the sovereign.

PROF HLA HART says that Austins theory is based on a command issued by a sovereign and
obeyed because of sanctions. He furthered by saying that while that can be true of 'criminal law',
it cannot be through of other laws. Also, he says that in a modern legal system, the sovereign
isn't above the law. Hart also says that Austin didn't give enough recognition to customs as a
source of Law and that many of the enactment of Parliament were actually inspired by customs
that had been in practice concerning a particular custom. Going forward, Hart says that the
'habitual obedience' theory is too simplistic. They Obey simply because they want too and not
because they are bound [Link] because they accept the sovereign. In summary, the Hart has this
to say "the simple idea of orders, habits and obedience cannot be adequate for an analysis of the
law. What is required is the notion of a rule conferring powers which may be limited or
unlimited in persons qualified in certain ways to legislate by complying with a certain procedure.

19/11/2019.

C. (HANS KHELSON).

He lived between 1881-1973. He was an Austrian-American Jurist. He wrote the Austrian

Constitution and he was a judge of the Austrian Supreme Constitutional Court. Upon being back
to the US, he participated in the drafting of the charter of the UN.

He believes that law must be studied by a logical and structural analysis in order for you to arrive
at a pure science of Law. This analysis must be devoid of 'Ethics, politics, any alien adultrating
elements, morals and the concept of purpose. In short, everything that is not strictly law is to be
discarded'.

He believes that when law is studied with other concepts, it obscures the essence of the science
of Law. Eg, he says that when we study law from the natural perspective, it cannot be subject to
any scientific reasoning and such claims are not supportable. His major works was the outline of
his theory which he published in 1911 titled "the Chief problems of the doctrine of international
law. " this work was further developed in 1945 in a piece of work titled 'general theory of Law
and state'.

according to khelson, 'law is a system of coercion imposing norms which are laid down by
human acts in accordance with a Constitution, the validity of which is presurposed if it is on the
whole efficacious'.
This theory is a normative theory based in norms (a conventional practice). But this norms are
valid because the are laid down and efficacious by a Constitution. Khelsons theory is pure
because it is logically self supporting and not dependent on any extra legal concept. Kelson
separates even the concept of justice from law because he sees the concept of justice as an
irrational ideal that cannot be met and thus cannot be used to define law because it merely
represents value preferences of individuals. I.e, it is a subjective concept.

It is scientifically impossible to tell what law is just simply because the concept of what is just is
subjective. Kelson seeks only to tell which law is real and possible but not to justify or condem.

20/11/19.

Norms according to khelson. He says every activity of a legal system can be traced back to an
authoritative standards that giveaway validity to that activity’s and that authoritative standard is
what is called a norm. A norm therefore is the “meaning” of an act by which a certain behavior is
commanded, permitted or authorized. Norms arises either throughout customs or are enacted by
conscious acts of certain organizations (law making bodies).

Legal norms do not merely prescribe certain types of behaviors, they attach sanctions to any
manifestation of contrary behavior. Again like the others, khelson prescribes sanctions to every
contrary behavior. He sees this as the coercive nature of the law and according to him is a very
significant constituent part of the law. The law is a decree of a measure of coercion, a sanction
for any conduct seen to be illegal I.e (delici).

Laws may also be norms addressed to specific officers, eg, judicial officers. Such norms are rules
prescriptive or conducts that must be pursued in certain circumstances.

The Validity of Norms

Khelson is of the opinion that a norm derives its valors solely from another legal norm of a
higher rank. There is a hierarchy of norms apparent in all bodies of law. Every norm is
dependent for its authority upon a superior norm. Legal systems are never a system of co-
ordinated norms of equal level but a hierarchy of norms of different levels.

CONCRETIZATION OF NORMS

Khelson says that as the norms descend the hierarchical steps , they become concrete such that
the most concrete norm would be the very last norm fulfilling the ultimate objective of the
abstract norm. Eg in the case of norm guiding stealing, the most abstract norm would be the
general law prohibiting stealing while the most concrete norm would be the law regulating the
jailing.

THE GRUND NORM

there is that norm whose Faluyi cannot be derived from a higher norm. It is the commencement
of a specific chain of legal norms. Eg, it could be the proposition in a constitution that says- that
every citizen is bound by the provisions of the constitution

FEATURES:

1. It is the starting point of the procedure for positive law creation

2. A basic norm may be discovered in any type of a legal order but there cannot be
conflicting basic norms

3. The basic norm is not eternal. I. E a basic norm can change

The principle of legitimacy of the system of norms is restricted by the principle of effectiveness.
The norms of the legal order must be accepted by and large within the community and the
GRUND norm in particular must have general support for it within the community. Universal
and total obedience is not essential. What is require is a sufficient amount of obedience. A
sufficiency of adherence to the essence of the basic norm allowing it to be effective in practice
thus validity of a norm does not merely require authorization by a higher norm but also a
minimum of effectiveness. The total legal order must be seen to be efficient in order that every
single norm in that system be valid

Any material content can be law. There is no human activity which is disqualified from being
law merely by virtues of its content.

According to khelson, there is no difference between the state and the law. Both are
fundamentally identical. The state is a political organization that expresses a particular legal
order. A state not governed by law is unthinkable and this is because s state is not its individuals
but a union of individuals ordered by regulations of their mutual behavior. This order is the law
and it is only in this order that the state exists. The state is the norms that declares its structure,
process, systems and procedures and this is similar to those within the legal system. Therefore
the state and the law are identical.

CRITICISMS

1. Lasky calls khelsons pure theory an exercise in logic and not in reality. A theory
that is unreal and far removed from the complexities of law in action

2. Even though khelson says that law is identical to the state, yet he removed the
society and its study from the study of law. It is in fact impossible to study law in abstract
especially outside the study of politics and sociology

3. Justice cannot be excluded from s consideration of law because justice in itself is

the very object of the functions of the law. The law exists because we seek justice.
 4. The community accepts the law but because the community accepts the spirit of
the law and not because a punishment is attached to the law.

5. The concept of a GRUND norm is unreal. It is similar to what we can call the first
cause arguments. How do we ascertain what the first law is. In Nigeria today, what really is
controlling us looking at the sowores case. What the executives are doing really isn’t it
unconstitutional.

So these are the criticisms so far.

PHOTOCOPY others note on sociological school.

All the very best in your exams.