ANOZIE’S NOTE

LAW IN SOCIAL CONTEXT1

The question "What is law?" might seem irrelevant to a practicing lawyer, as their primary
focus often revolves around resolving specific legal issues or determining the law applicable
to a particular situation. However, for a fresh law undergraduate, understanding the
concept of law is foundational, as it introduces them to the diverse ideas and
interpretations of what law truly entails. Without this understanding, one may adopt
incomplete or inaccurate notions of law, hindering their ability to grasp the discipline in its
entirety.

The term "law" can be understood in both a general and technical sense. In its general
usage, the word "law" refers to rules or principles that govern behavior or relationships in
various contexts. For instance, one might speak of the law of a club, the law of God, or
economic laws such as the law of demand and supply. These references highlight the broad
applicability of the term, which extends beyond the legal field. However, in the study of law,
the focus is on its technical meaning, which is more specific and grounded in the formal
structures of society.

To define law in its technical sense, it is practical to consider its institutional sources,
setting aside philosophical debates for a more precise approach. It is important to note that
this definition is not exhaustive or final; rather, it serves as a starting point for
understanding law as a formal construct. By the end of their exploration of this concept,
students are encouraged to develop their own definitions, incorporating the knowledge
gained from various perspectives and discussions. This iterative process of defining law
fosters a deeper understanding of its role, purpose, and impact on society. Thus, to define
law, we would be looking at the school of thought definitions and philosophical
definitions.2

School of Thought
The concept of law has been a subject of debate for centuries, leading to the development
of various schools of thought that define law from different perspectives. These schools of
thought provide distinct frameworks for understanding the origin, nature, and purpose of
law in society. Among these schools, the positivist, utilitarian, pure theory, sociological,
historical, natural, Marxist, and realist schools stand out for their unique contributions to
legal philosophy.

The positivist school of thought in legal philosophy focuses on the idea that law is
fundamentally a system of rules created and enforced by a recognized sovereign authority.
This perspective insists on a clear distinction between what the law is and what the law
ought to be, meaning that the validity or existence of a legal rule does not depend on

1
Chiemelie Emmanuel Okpalanozie, 300-level law student, University of Lagos, [email protected].
2
Dr. S. A Igbinedion, Legal Method, (University of Lagos, 2024), Lecture Note.
 ANOZIE’S NOTE

whether it aligns with moral principles or societal notions of justice. Under this school, law
is defined as a "command" issued by a superior authority, typically the sovereign, and
accompanied by the threat of sanctions to ensure compliance. The sovereign in this context
refers to an authority or institution that is habitually obeyed by the members of a society
but is not subject to any higher earthly authority. This view of law as a set of commands
with enforceable consequences highlights its practical and coercive nature.

One of the key proponents of positivism, John Austin, described law as “the command of
the sovereign, backed by a sanction.” He argued that the essence of law lies in its
enforceability by the state, irrespective of whether it aligns with moral or ethical standards.
Austin emphasized that the focus should be on analyzing law in its actual form, how it is
created, structured, and applied rather than critiquing it based on subjective moral
judgments. H.L.A. Hart, another influential positivist thinker, expanded on Austin’s ideas
and introduced a more nuanced approach. Hart emphasized the distinction between
primary and secondary rules in a legal system. Primary rules govern behavior by imposing
duties or obligations, while secondary rules provide the framework for creating, modifying,
and interpreting primary rules. Hart argued that the validity of a law depends on whether it
complies with the rule of recognition, an accepted standard or procedure within a legal
system that determines what constitutes valid law.

Positivism’s key contribution is its insistence on separating law from morality. According to
this school, even laws that are unjust or immoral may still be considered valid law if they
are created and enforced by the proper authority. For instance, a discriminatory law,
though unethical, could still be valid under positivist theory if it meets the formal criteria
of enactment and enforceability. In essence, positivism advocates for an objective and
systematic study of law as it exists in reality, without conflating it with subjective ideals of
morality or justice. By doing so, it aims to provide clarity and precision in understanding
and applying the legal framework, ensuring that legal analysis remains distinct from moral
or political debate.

In contrast, the utilitarian school of thought views law as a tool designed to achieve the
greatest happiness for the greatest number of people. It evaluates laws based on their
consequences, focusing on whether they contribute to societal welfare and overall
well-being. This perspective ties the legitimacy of a law to its ability to serve the collective
good, rather than to its formal structure or moral underpinnings. Jeremy Bentham, the
founder of utilitarianism, argued that the primary purpose of law is to maximize happiness
and minimize suffering. According to Bentham, all human actions, including those of
lawmakers, should be guided by the "principle of utility," which measures the value of an
action or law by its capacity to produce pleasure and avoid pain. He believed that laws
should function as instruments of social engineering, crafted to promote the general
welfare and improve the conditions of society as a whole.
 ANOZIE’S NOTE

John Stuart Mill, a key figure who further developed utilitarianism, refined Bentham’s
ideas by introducing a more nuanced understanding of happiness. Mill emphasized that not
all pleasures are of equal value, distinguishing between higher (intellectual and moral) and
lower (physical and base) pleasures. He argued that laws should aim to cultivate higher
pleasures and long-term societal well-being rather than merely addressing immediate or
superficial needs. The utilitarian approach to law is inherently pragmatic. It judges legal
rules by their effectiveness in achieving desirable outcomes for society. For example, a law
that redistributes resources to alleviate poverty would be considered legitimate under this
theory if it increases overall happiness, even if it imposes certain costs on a minority.
Similarly, criminal laws are justified under utilitarian principles because they deter
harmful behavior, thereby protecting the well-being of the majority.

A key strength of utilitarianism is its focus on the practical function of law in addressing
societal needs. By grounding legal legitimacy in the ability of laws to produce tangible
benefits for the greatest number of people, this school of thought prioritizes the collective
good over abstract notions of morality or rigid formalism. However, critics of utilitarianism
often highlight its potential to justify actions or laws that harm minorities if such harm is
outweighed by benefits to the majority, raising ethical concerns about fairness and justice.
Thus, the utilitarian school defines law as a means to achieve the maximum happiness and
welfare of society. By emphasizing the consequences of legal rules, it provides a framework
for evaluating laws based on their utility and practical effectiveness in promoting societal
well-being. This approach underscores the importance of aligning legal systems with the
collective interests of the community.

NOTE

In Jeremy Bentham's utilitarian philosophy, he prioritized values that he believed were

essential for achieving the greatest happiness for the greatest number. Central to his
thinking was the idea that certain foundational principles must take precedence over
others to ensure societal stability and well-being. Among these, security held the highest
priority in Bentham’s framework. Security, in his view, was indispensable because it
provided the foundation for a stable and orderly society. Without security, individuals
would live in constant fear of harm, whether to their lives, property, or general well-being.
This lack of stability would make the pursuit of happiness nearly impossible, as people
would be preoccupied with immediate threats to their safety.

Bentham placed liberty as the second priority, recognizing its significant role in promoting
individual autonomy and happiness. Liberty, or the freedom to act according to one’s own
will within the bounds of the law, was essential for allowing people to pursue their interests
and maximize their utility. However, Bentham was clear that liberty must not undermine
security. For him, liberty could only flourish within a secure framework. If unrestrained
liberty led to chaos or disorder, it would jeopardize the very security that made freedom
 ANOZIE’S NOTE

meaningful. Thus, while liberty was important, it was subordinate to security because only
a secure society could provide the conditions for individuals to exercise their freedoms
effectively.

In addition to security and liberty, Bentham acknowledged the importance of subsistence

and abundance. Subsistence referred to the provision of basic needs essential for survival,
such as food, shelter, and clothing. Without access to these necessities, individuals could
not live, let alone pursue happiness. Abundance, on the other hand, extended beyond mere
survival, focusing on the creation of wealth and resources that could elevate the standard of
living and increase overall happiness. These elements underscored Bentham’s practical
understanding of human needs, as he recognized that material well-being played a
significant role in achieving societal utility.

Finally, Bentham included equality in his hierarchy, though he placed it lower in

importance compared to security, liberty, and subsistence. Equality, while desirable, was
not an absolute value for Bentham. He believed that striving for complete equality could
sometimes conflict with the broader goal of maximizing societal happiness. For instance,
excessive redistribution of wealth might discourage productivity or innovation, ultimately
reducing the resources available to benefit society as a whole. Thus, while Bentham valued
equality as a means to prevent extreme disparities, he argued that it should not come at the
expense of security, liberty, or overall welfare.

Bentham’s prioritization reflects his pragmatic approach to utilitarianism. By emphasizing

security as the bedrock of society, he acknowledged the need for stability to enable
individuals to pursue happiness. Liberty, subsistence, and abundance were also essential
but could only be meaningful within a secure environment. Equality, though important,
was carefully balanced against these priorities to avoid undermining the collective good. In
this way, Bentham’s utilitarian framework sought to provide a practical and systematic
approach to organizing society in a manner that maximized happiness while maintaining
order and sustainability.

Hans Kelsen's Pure Theory of Law offers a distinct and systematic approach to
understanding the nature of law. It emphasizes the idea that law should be studied as a
self-contained and autonomous system of norms, entirely separate from other societal
influences such as morality, politics, or sociology. For Kelsen, the goal of this theory was to
purify the study of law by removing subjective and external considerations, allowing for an
objective and scientific analysis of legal systems.

Central to Kelsen’s theory is the concept of law as a hierarchy of norms. In this hierarchical
structure, each norm derives its validity from a superior norm, creating an interconnected
chain of authority. At the pinnacle of this hierarchy lies the fundamental norm, or
"Grundnorm," which serves as the ultimate source of validity for all other norms within the
 ANOZIE’S NOTE

legal system. The Grundnorm is not a written law or an enacted rule but rather a
hypothetical presupposition that provides the foundation for the legal order. For example,
in a constitutional system, the Grundnorm might be the presupposition that the
constitution itself is valid and must be obeyed.

Kelsen’s focus on the hierarchical structure of law highlights its formalistic nature. In his
view, the content or moral quality of a legal rule is irrelevant to its validity. What matters is
whether the rule has been created in accordance with the procedures and norms
prescribed by the legal system. This approach distinguishes law as it is (what Kelsen called
"positive law") from what law ought to be, thus maintaining a strict separation between legal
science and moral or political judgment. The Pure Theory of Law also rejects the idea that
law is inherently tied to justice or morality. Kelsen argued that while individuals may have
differing views on what is just or moral, such considerations fall outside the domain of legal
analysis. Instead, the theory focuses solely on the structure and functioning of the legal
system, treating law as a normative order that regulates behavior through a system of rules
and sanctions.

By advocating for the study of law in its purest form, Kelsen’s theory provides a rigorous
and methodical framework for analyzing legal systems. It emphasizes the internal logic and
coherence of law, ensuring that legal analysis remains objective and free from subjective
biases. However, the Pure Theory of Law has faced criticism for its exclusion of social,
moral, and political contexts, which many argue are essential for understanding the role of
law in society. In essence, Kelsen’s Pure Theory of Law offers a formalistic and systematic
approach to legal analysis, centered on the idea of law as a self-contained hierarchy of
norms culminating in a fundamental norm. This theory underscores the importance of
studying law as an autonomous discipline, distinct from external influences, to achieve
clarity and precision in legal science.

ILLUSTRATION

Hans Kelsen's Pure Theory of Law is an approach that seeks to explain and study law in its
simplest and most objective form. He believed that law should not be mixed with other
fields, such as morality, politics, or sociology, because doing so could lead to confusion and
subjective interpretations. Instead, Kelsen argued that law should be treated as a system of
rules or norms that exist on their own, separate from these external influences. To
understand this better, imagine law as a structure built entirely from rules, like a tower
made of blocks. Each block represents a rule (or "norm"), and the rules are connected in a
systematic way. According to Kelsen, the validity of a rule depends on whether it follows
the procedures set by the rule above it. For example, a law passed by the legislature is valid
because it follows the procedures outlined in the constitution. This idea of rules deriving
their validity from higher rules creates a hierarchy of norms, like the layers of the tower.
 ANOZIE’S NOTE

At the very top of this hierarchy, there is what Kelsen called the "Grundnorm" or
fundamental norm. This is not a written rule (This would lead to the consideration as to
whether the constitution can be regarded as the grundnorm) but a basic assumption that gives
legitimacy to the entire legal system. For instance, in most countries, the fundamental
norm might be the belief that the constitution is the supreme law and should be obeyed.
Everything in the legal system flows from this basic assumption. What makes Kelsen’s
theory "pure" is his insistence that law should only be analyzed as it is, without considering
whether it is just, fair, or moral. For him, questions of morality or politics are separate from
legal analysis. He believed that law should be studied scientifically, focusing on its structure
and operation, rather than being influenced by personal opinions or societal values. In
simpler terms, Kelsen's Pure Theory of Law is like saying, "Let’s study law on its own terms,
as a system of rules, without getting distracted by whether those rules are good or bad, fair
or unfair." This approach makes legal analysis more systematic and objective, but it has also
been criticized for ignoring the important role that morality and social context play in
understanding and applying the law.

If the Grundnorm is not a written law or an enacted rule but rather a hypothetical
presupposition that provides the foundation for the legal order, how does this align with
the existence of written constitutions in many legal systems?

Most modern constitutions are written documents, such as the Nigerian Constitution or the
United States Constitution. However, Hans Kelsen's concept of the Grundnorm
(fundamental norm) is not the same as a written constitution, even though they are closely
related in practice. The Grundnorm, in Kelsen's theory, is a hypothetical idea or
assumption that serves as the ultimate foundation for the validity of a legal system. It is not
a specific written law or enacted rule but rather an underlying belief or presupposition that
people accept as the basis of the legal order. In practical terms, the Grundnorm could be
something like, "The constitution must be obeyed," or "The laws enacted by legitimate
authorities are valid." (This would lead to the issue whether the people should be regarded as the
grundnorm)

In a legal system with a written constitution, the constitution itself is a tangible, formal
document that outlines the rules and principles governing a state. It specifies how laws are
made, how powers are distributed among branches of government, and the rights and
duties of citizens. The constitution is part of the hierarchy of norms in Kelsen's framework,
and its validity depends on the Grundnorm. For example, in a country with a written
constitution, the Grundnorm might be the presupposition that "The constitution is the
supreme law of the land, and everyone must follow it."3 This belief gives legitimacy to the
constitution and, by extension, all the laws and rules derived from it. Without this

3
Constitution of the Federal Republic of Nigeria, 1999, s 1(1)
 ANOZIE’S NOTE

presupposition, even a written constitution would lack authority, as its validity depends on
the acceptance of this fundamental idea.

Thus, while a written constitution is a formal and specific document within the legal
system, the Grundnorm is an abstract and hypothetical concept that provides the
philosophical foundation for the validity of the entire legal system, including the
constitution. The Grundnorm operates at a higher level of abstraction, making it the
ultimate source of legal legitimacy, while the constitution is a concrete expression of that
legitimacy within the legal hierarchy.

Would it be said that the legitimacy of the Nigerian Constitution lies in the people who
drafted it, or is the Constitution itself the Grundnorm, given the ongoing debate about its
origin and the absence of direct popular participation in its creation?

The debate about whether the constitution itself or the people who drafted or adopted the
constitution is the true Grundnorm is indeed a significant issue in Nigeria, as it touches on
the legitimacy of the Nigerian Constitution and the foundation of the country’s legal
system. In Hans Kelsen's theory, the Grundnorm is not a tangible document or a specific
group of people. Instead, it is an abstract presupposition that provides legitimacy to the
entire legal system. It is the hypothetical foundation upon which the legal order rests. For
instance, in a system like Nigeria's, the Grundnorm might be expressed as the belief that
"the Constitution is the supreme law of the land and must be obeyed." This belief
legitimizes the Constitution and all laws enacted under its authority.

In the Nigerian context, the question arises: Is the Constitution the Grundnorm, or does
the Grundnorm lie in the sovereignty of the people who adopted (or should have adopted)
the Constitution? The argument stems from the principle that in a democratic society,
sovereignty ultimately resides with the people.4

1.​ The Constitution as the Grundnorm​

Many legal scholars argue that the Nigerian Constitution itself serves as the
Grundnorm because it is the highest law of the land. It provides the framework for
governance, outlines the powers of government, and guarantees the rights of
citizens. This perspective aligns with Kelsen's idea that all other laws derive their
validity from a higher norm, which in this case would be the written Constitution.
2.​ The People as the Source of the Grundnorm​
Others argue that the true Grundnorm is not the Constitution itself but the will or
sovereignty of the people who legitimized it. In theory, a Constitution derives its
authority from the consent of the governed. In Nigeria, however, this argument has
been challenged because the 1999 Constitution was not drafted or directly ratified

4
Constitution of the Federal Republic of Nigeria, 1999, Preamble.
 ANOZIE’S NOTE

by the Nigerian people. Instead, it was promulgated by a military government,

which raises questions about its legitimacy as an expression of the people’s will.

The Issue in Nigeria

The core of the issue in Nigeria is the claim that the 1999 Constitution begins with the
words “We the People,”5 implying that it was created and adopted by the collective will of
Nigerians. However, in reality, the Constitution was imposed by a military regime without a
formal referendum or direct participation by the people. This has led to criticism that the
Constitution lacks the democratic legitimacy that the phrase “We the People” suggests.
Critics argue that for the Nigerian legal system to truly reflect the sovereignty of the
people, there must be a new Constitution drafted and adopted through a transparent,
inclusive, and democratic process, such as a referendum. Until this happens, the claim that
the people are the ultimate source of the Grundnorm remains contentious.

Reconciling the Debate

From a legal positivist perspective (following Kelsen), the Constitution can still serve as the
Grundnorm as long as it is recognized and obeyed by the legal system and the institutions
within it. However, from a democratic and moral standpoint, the legitimacy of that
Grundnorm depends on whether it genuinely reflects the will of the people. Whether the
Constitution itself or the people are the true Grundnorm in Nigeria depends on the
perspective one adopts. Legally, the Constitution functions as the Grundnorm because it is
the foundation of all laws in Nigeria. Politically and morally, however, many argue that the
people should be the ultimate source of the Grundnorm, which raises critical questions
about the legitimacy and origins of the Nigerian Constitution.

The sociological school of jurisprudence approaches law not as an abstract or formal

system of rules, but as a social institution that is deeply embedded in and shaped by the
society it governs. Unlike legal positivism, which treats law as a set of rules established by a
sovereign authority, the sociological school emphasizes the connection between law and
society. It views law as a tool to address the practical needs, customs, and values of the
people within a given society. The central premise is that law is not merely a product of
legal theory or legislation, but rather a dynamic and responsive entity that evolves
alongside societal changes.

Two key figures in the development of the sociological school are Roscoe Pound and Eugen
Ehrlich. Pound, an American legal scholar, argued that law should be understood in terms
of its function within society. He coined the term "social engineering," suggesting that the
law is a tool for balancing and harmonizing various social interests. According to Pound,
law must evolve in response to the changing needs of society. It should not be static or

5
Ibid
 ANOZIE’S NOTE

purely formal, but must serve practical purposes by resolving conflicts and ensuring social
order. He believed that the law should reflect the values of society while ensuring justice
and fairness for all its members.

Eugen Ehrlich, an Austrian sociologist, further developed this perspective by emphasizing

that law is not solely defined by official legislation or judicial decisions, but is also shaped
by social practices and informal norms that exist within communities. According to
Ehrlich, the "living law" of a society is made up of the customs, traditions, and relationships
that govern people's daily lives. These informal legal systems often operate alongside
formal legal structures, and Ehrlich argued that they should be taken into account when
understanding the law as a whole.

The sociological school places great emphasis on social context. It posits that law must be
understood not in isolation, but in relation to the social environment in which it operates.
This perspective sees law as a mirror of societal values, customs, and priorities, suggesting
that the law's legitimacy is rooted in its ability to address the actual needs of the people. For
example, in times of economic or social upheaval, the law must adapt to address new
realities and ensure stability, fairness, and justice.

This approach emphasizes that law is dynamic, constantly evolving to meet the needs of a
changing society. For example, laws related to technology, environmental protection, or
human rights have evolved over time in response to changes in societal concerns. The
sociological school advocates that legal reform is necessary to ensure that legal rules and
institutions align with the prevailing social conditions, customs, and values.

One of the central tenets of the sociological school is the promotion of social justice. Legal
rules are seen as a means to achieve fairness and equality, ensuring that the rights of
individuals and groups are protected. The sociological school often argues that the law
should be used to challenge existing power structures and injustices within society. For
instance, the legal reforms of the civil rights movements in the United States, or efforts to
promote gender equality, are seen as prime examples of the law responding to societal
demands for justice.

Legal systems, according to the sociological school, should prioritize the well-being of the
community and the protection of vulnerable or marginalized groups. In this view, law
serves as an instrument not only to regulate behavior but to advance social welfare and
ensure that societal progress is achieved in a just manner.

The sociological school of jurisprudence understands law as a living institution, shaped by

and reflective of the evolving needs and values of society. It emphasizes that law should not
be seen as static or purely formal but as dynamic and responsive to social change.
Prominent thinkers like Roscoe Pound and Eugen Ehrlich have contributed to this view,
arguing that law’s legitimacy lies in its ability to adapt to societal realities and promote
 ANOZIE’S NOTE

social justice. Therefore, legal systems should not only focus on the formal application of
rules but must be attuned to the practical, social realities that shape people's lives.

The historical school of jurisprudence offers a perspective on law that is fundamentally

rooted in a society’s historical development and cultural heritage. Unlike legal positivism,
which treats law as a set of rules imposed by a sovereign authority, the historical school
views law as a product of a society's traditions, customs, and social practices. This
approach emphasizes that law evolves gradually over time in response to the specific
historical, social, and cultural experiences of a people. It stresses the importance of
understanding law in its historical context, suggesting that legal systems must reflect the
unique identity and values of the society in which they operate.

One of the central figures associated with the historical school is Friedrich Carl von
Savigny, a German jurist who is often regarded as its most prominent advocate. Savigny
argued that law is not a construct imposed from above, such as by a sovereign or an
external authority, but rather, it grows organically from the spirit of the people or
Volksgeist. The term "Volksgeist" can be translated as the "spirit of the people," referring to
the collective cultural consciousness, customs, and values that shape the identity of a
nation or community.

According to Savigny, law is not something that can be simply created or legislated in
isolation; rather, it must reflect the historical and cultural context of the people it governs.
He emphasized that the law evolves naturally as society develops, drawing upon
long-established customs, traditions, and practices that are deeply embedded in the social
fabric of the community. This understanding of law stands in contrast to the view that law
is a formal set of rules imposed from the top down, often by the state or sovereign.

The historical school sees law as a living organism, one that grows and adapts over time in
response to the changing needs and experiences of society. Savigny argued that legal rules
should not be artificially constructed but should evolve from the people’s experiences,
reflecting their customs and social needs. According to this perspective, legal institutions
develop organically over time, driven by the inherent values and practices of the
community. This idea suggests that the law must be seen as part of a larger cultural and
historical process, continuously shaped by the experiences of those who live under it.

For instance, in medieval societies, the law was largely influenced by customs, traditions,
and the community’s social structure, which gradually evolved into more formalized legal
codes. Over time, as societies became more complex, these codes were adapted to meet the
changing needs of the population, incorporating new customs and practices.

The historical school holds that legal rules must align with a society’s unique cultural
identity. The idea is that law is a product of the culture and values of the people it governs.
This cultural perspective is crucial in understanding the historical school’s emphasis on the
 ANOZIE’S NOTE

importance of traditions and customs. For example, the legal systems of different nations
may reflect their distinct cultural practices, religious beliefs, and social structures. The
English common law, for instance, developed organically from judicial decisions and
customary law, while civil law systems in continental Europe, influenced by Roman law,
have a different historical and cultural foundation.

By emphasizing cultural identity, the historical school argues that a universal system of
law that disregards the unique history and values of different societies is unlikely to be
successful. Legal rules that do not align with a society’s traditions may face resistance, as
they would be perceived as foreign or inappropriate for the community. The historical
school stresses that legal legitimacy is often tied to its connection with the traditions and
customs of the people, making law more effective when it resonates with the cultural
values of the society it governs.

In the historical school, history plays a central role in the development of legal systems.
The evolution of law is seen as a reflection of historical events and societal changes. Legal
systems evolve in response to the changing circumstances of society, and understanding
the history of a people is crucial to understanding their legal system. This historical
approach emphasizes that legal systems should not be viewed as static entities but as
evolving processes, shaped by a society’s experiences, challenges, and collective memory.

For example, the development of the Nigerian legal system was influenced by its colonial
history, with English common law serving as the basis of the legal system, but over time,
Nigerian legal culture has developed its own unique features, incorporating traditional
practices and customs. In this way, the historical school would argue that the law in Nigeria
has been shaped by both its colonial history and the cultural traditions of its people.

To conclude, the historical school defines law as a product of society's historical

development and cultural heritage. According to this perspective, law is not a set of
abstract principles or rules, but rather an expression of a society’s customs, traditions, and
values. Figures like Friedrich Carl von Savigny argued that law must grow organically from
the spirit of the people, or Volksgeist, and must reflect the unique identity of the society in
which it operates. Legal systems should evolve in response to the changing needs and
experiences of the people, and laws that do not align with these traditions and customs
may fail to be effective. This school highlights the importance of understanding law in its
historical and cultural context, viewing it as an ever-evolving entity that must remain
connected to the lived experiences of the community.

The natural school of thought, which has its roots in ancient philosophy, posits that law is
not merely a human creation but a reflection of universal moral principles inherent in
human nature. This school argues that true law is derived from reason, aligning itself with
the natural order of the world and the inherent rights of individuals. It maintains that law
 ANOZIE’S NOTE

is not a mere set of rules created by a governing authority but is instead rooted in
principles of justice that transcend human legislation. Several classical thinkers, including
Aristotle, Thomas Aquinas, and John Locke, have greatly influenced this school of thought,
each contributing their unique perspectives on the relationship between law, morality, and
reason.

Aristotle, often considered one of the earliest proponents of natural law, argued that the
best form of government is one that aligns with the natural order of the world. In his view,
the law should reflect the moral virtues inherent in human nature, and the ultimate
purpose of law is to promote the good life, ensuring that individuals live in accordance with
their rational nature. Aristotle's belief in the rational basis of law suggests that law must be
derived from reason and must promote the common good.

Similarly, Thomas Aquinas, a prominent Christian philosopher and theologian, expanded

on Aristotle's ideas and integrated them with Christian doctrine. For Aquinas, natural law
was the law of God, which could be understood through human reason. He argued that
natural law was a reflection of divine reason, and as such, it was unchanging and eternal.
For Aquinas, the moral order of the universe is established by God, and human beings are
able to discern this moral order through reason. He viewed positive law, the laws created
by governments, as subordinate to natural law, asserting that any law that contradicts
natural law is not a true law and has no legitimate authority.

John Locke, another key figure in the natural law tradition, focused on the protection of
individual rights as the primary function of law. Locke's theory of natural law emphasized
the idea of inalienable rights, particularly the rights to life, liberty, and property. For Locke,
the law must protect these fundamental rights, which exist independently of the
government. He argued that individuals form governments to secure these natural rights,
and any government that violates these rights becomes illegitimate. In this way, Locke's
contribution to natural law theory further reinforced the idea that law must conform to
moral principles and protect individual freedoms.

The connection between law and morality is central to the natural school of thought.
Natural law theorists assert that law is not simply a set of arbitrary commands issued by a
sovereign authority but is instead a reflection of moral principles that are universally
applicable. According to this view, unjust laws—those that do not conform to these moral
principles—lack legitimacy. In this sense, natural law serves as a standard against which
positive laws, or laws created by human institutions, can be evaluated. If a law contradicts
natural law, it is considered unjust and is not recognized as a true law. This provides a
critical lens through which to evaluate the laws of any society, offering a moral foundation
that transcends human-made legislation.
 ANOZIE’S NOTE

In sum, the natural school of thought presents a vision of law as a moral compass, rooted in
human nature and reason. It insists that law must conform to universal moral principles
that reflect the inherent rights of individuals and the common good. Through the
contributions of thinkers like Aristotle, Aquinas, and Locke, this school of thought has
profoundly shaped our understanding of the law's relationship to morality, emphasizing
that laws that are unjust cannot be considered legitimate. Natural law thus provides a
standard for evaluating positive laws and insists that true law must always be in harmony
with justice and reason.

The Marxist school of thought offers a distinct and critical perspective on the nature of
law, viewing it not as a neutral institution but as an instrument of class oppression.
According to Karl Marx and Friedrich Engels, law serves the interests of the ruling class,
maintaining their dominance over the working class and perpetuating the inequalities
inherent in capitalist societies. This school of thought situates law within the broader
context of economic structures and class struggles, arguing that the legal system is
fundamentally shaped by and reflective of these societal divisions. In this view, the law is
not a universal or impartial set of rules, but a tool for consolidating power and protecting
the privileges of the bourgeoisie, or ruling class, at the expense of the proletariat, or
working class.

Karl Marx, the foundational figure behind Marxist legal theory, argued that law is a direct
expression of the economic base of society. He believed that the legal system is shaped by
the material conditions of the economy, which in turn are driven by the mode of
production. In capitalist societies, where the means of production are owned by a small
elite, the law serves to reinforce the economic structures that sustain their power. For
Marx, the state and its legal apparatus are not neutral bodies, but rather institutions that
exist to protect the interests of the capitalist class. In this sense, law becomes a tool of
social control, ensuring that the working class remains subjugated and that the capitalists
can continue to extract surplus value from their labor.

Friedrich Engels, Marx's collaborator and co-author of The Communist Manifesto, further
developed this idea by emphasizing the role of law in perpetuating inequality. Engels
argued that law, like the state, is an instrument of the ruling class, used to defend private
property and maintain the social order. In capitalist societies, property rights are
enshrined in law, and legal systems are designed to protect the wealth and power of the
bourgeoisie. This protection of private property, Engels contended, is central to the
functioning of capitalism, as it ensures that the ruling class retains control over the means
of production while the working class is left to sell their labor for wages. The law, in this
sense, is a reflection of the material interests of the capitalists, and any notion of justice or
fairness within this system is inherently skewed toward the preservation of existing power
dynamics.
 ANOZIE’S NOTE

The Marxist critique of law is rooted in its view of class struggle. According to this
perspective, law does not emerge from an objective quest for justice or fairness but from
the need to manage and suppress class conflict. The legal system in capitalist societies
functions to regulate the relationships between the classes, ensuring that the interests of
the ruling class are protected while limiting the ability of the working class to challenge
their exploitation. In this regard, the law is seen as a tool of coercion and domination, used
to maintain the status quo and prevent the emergence of revolutionary movements that
might threaten the capitalist system.

A key aspect of Marxist legal theory is the idea that a truly just legal system can only
emerge in a classless, communist society. In such a society, where the means of production
are collectively owned and class distinctions are abolished, the need for law as an
instrument of oppression would disappear. Marx and Engels envisioned a future where the
state, along with its legal apparatus, would wither away, as there would be no need for laws
that protect private property or regulate class relations. Instead, the legal system would be
replaced by a system of communal governance based on cooperation and mutual benefit,
where the principles of justice would be based on the needs and interests of the community
rather than the economic power of a particular class.

Marxist legal theory, therefore, critiques the role of law in upholding exploitative systems.
It challenges the conventional understanding of law as a neutral and impartial institution
and instead frames it as a tool for reinforcing the power of the capitalist class. This school
of thought highlights the ways in which law is used to perpetuate social inequality,
particularly in capitalist societies, where the legal system serves to protect the interests of
the wealthy and maintain the subjugation of the working class. In the Marxist view, a truly
just legal system can only emerge in a society free of class distinctions, where the
exploitation of labor is abolished, and the law serves the interests of the collective rather
than the ruling elite.

In conclusion, the Marxist school of thought provides a critical lens through which to
examine the role of law in society, highlighting its function as a tool of class oppression and
its connection to broader economic and political structures. By emphasizing the
relationship between law and class struggle, Marxist legal theory challenges the
conventional understanding of law as neutral or just, arguing instead that it is an
instrument designed to perpetuate the inequalities of capitalist societies. Only in a
classless, communist society, according to Marxist theory, can a truly just legal system
emerge, one that serves the collective interests of all people rather than the few who hold
power.

The realist school of thought presents a pragmatic and empirical view of law, emphasizing
its practical application rather than its abstract formulation. Legal realists, such as Oliver
Wendell Holmes Jr. and Jerome Frank, argue that law is not a set of fixed, theoretical rules
 ANOZIE’S NOTE

but a dynamic and evolving process shaped by the decisions made by judges and other legal
officials in real-world cases. This perspective challenges traditional formalist views of law,
which treat legal rules as objective, universal, and independent of human behavior. Instead,
legal realism asserts that law is heavily influenced by social, political, and psychological
factors, all of which affect the decisions of legal actors in a concrete context.

Oliver Wendell Holmes Jr., one of the foremost figures in the development of legal realism,
is perhaps best known for his assertion that "the life of the law has not been logic; it has
been experience." Holmes rejected the notion that law could be understood purely through
abstract reasoning or deductive logic, emphasizing instead that the law is a product of the
lived experiences and social realities of those who apply it. According to Holmes, judges do
not merely apply legal rules in a mechanical fashion; rather, they interpret and shape the
law based on their personal experiences, societal norms, and the specific circumstances of
each case. This view of law as a flexible, context-dependent system of decisions stands in
stark contrast to the formalist view, which holds that legal rules can be applied consistently
and predictably, regardless of the social or political context in which they are applied.

Jerome Frank, another prominent realist, further advanced this critique of formalism by
focusing on the psychological dimensions of judicial decision-making. Frank argued that
judicial decisions are influenced not just by legal rules, but by the judges' personal beliefs,
biases, and emotions. In his book Law and the Modern Mind, Frank explored how
psychological factors, such as a judge's personal experiences or worldview, could shape the
way they interpret and apply the law. Frank’s work highlighted the inherent subjectivity in
judicial decision-making and emphasized that, in practice, the law is far less certain and
predictable than formalist theories would suggest. According to Frank, understanding the
law required more than just examining statutes and legal precedents; it necessitated an
empirical investigation into how legal actors behave and make decisions in real-world
contexts.

The realist school of thought also advocates for a more empirical approach to the study of
law. Realists argue that law should be studied as it operates in practice, rather than relying
on theoretical models of legal reasoning. Legal realism encourages the examination of how
laws are actually applied by judges, lawyers, and other officials in the courtroom and
beyond. This involves looking at the outcomes of cases, the behavior of legal actors, and the
broader social and political factors that influence judicial decision-making. Realists
contend that by focusing on the real-world operation of the law, legal scholars and
practitioners can develop a more accurate understanding of how the legal system functions
and how it might be improved.

In contrast to formalist theories, which treat law as a system of abstract rules that can be
applied consistently and objectively, legal realism asserts that law is inherently shaped by
the complexities of human behavior. Realists recognize that judges and other legal officials
 ANOZIE’S NOTE

are influenced by a wide range of external factors, such as public opinion, political
pressure, and personal values. These influences mean that legal decisions are often
unpredictable and can vary significantly from case to case. As a result, realists challenge the
formalist view of law as a neutral, objective system of rules, and instead advocate for an
understanding of law that takes into account the practical realities of how it is applied in
the real world.

The realist school of thought has significant implications for the practice of law. By
emphasizing the importance of context and the human elements of judicial
decision-making, realism advocates for a more flexible, pragmatic approach to legal
interpretation. Realists argue that judges should recognize the social, political, and
psychological factors that influence their decisions and be willing to adapt the law to reflect
contemporary realities. In this sense, legal realism promotes a more dynamic and
responsive legal system, one that is better equipped to address the needs of society in a
rapidly changing world.

In conclusion, the realist school of thought offers a compelling critique of the formalistic
view of law, emphasizing that law is not a set of abstract, immutable rules but a process
shaped by the decisions of legal actors in specific cases. By focusing on the practical
application of law, legal realism highlights the influence of social, political, and
psychological factors on judicial decision-making, challenging the notion that law can be
understood purely through theoretical reasoning. Realists advocate for an empirical
approach to studying law, one that takes into account the complexities of human behavior
and the real-world operation of the legal system. Ultimately, legal realism provides a more
nuanced and realistic understanding of how law functions in practice, calling for a legal
system that is responsive to the needs of society and grounded in the realities of human
experience.

PHILOSOPHICAL DEFINITIONS

Cicero's statement that law is "the highest reason implanted in nature which commands
what ought to be done and forbids the opposite" reflects his belief in natural law, a principle
rooted in universal moral order and human reason. For Cicero, law is not a mere creation
of human authority or societal convention; rather, it is a manifestation of the rational order
of nature, accessible through human reason. This "highest reason" governs both the natural
world and human behavior, directing individuals toward actions that align with virtue and
the common good.

Cicero's view of law emphasizes its normative and prohibitive functions. Law, as the
highest reason, not only commands actions that promote justice and morality but also
forbids behaviors that are unjust or harmful. In this sense, natural law serves as both a
 ANOZIE’S NOTE

guide to what should be done and a restraint against what should not be done. It reflects a
universal moral order that transcends specific human societies or governments.

Furthermore, Cicero argued that positive laws, or those created by rulers, must conform to
natural law to be legitimate. Any law that contradicts the rational and moral order of
nature lacks true authority. Thus, for Cicero, natural law is the ultimate standard by which
all human laws must be measured, and laws that deviate from this standard are not true
laws. His view underscores the idea that law derives its legitimacy from its alignment with
reason and morality, not merely from the authority of rulers.

Aristotle’s statement that "law is reason without desire" reflects his understanding of law as
an impartial, rational principle that directs human behavior toward the common good,
independent of personal desires or emotions. For Aristotle, law should be guided by reason
and serve the collective well-being of the community rather than the self-interest or whims
of individuals. This idea underscores the notion that law, when properly constructed, is not
influenced by the personal desires or passions of those who create or enforce it, but rather
is grounded in reason and the objective pursuit of justice.

In Aristotle’s philosophy, reason plays a central role in achieving virtue and the good life.
He believed that law should be a rational system of rules that encourage virtuous behavior,
promote social harmony, and help individuals live according to their highest potential.
Desire, on the other hand, represents subjective, personal inclinations that may conflict
with what is rational or just. Law, therefore, must transcend individual desires and be
based solely on reason, ensuring that it serves the collective interests of society as a whole.

By saying that law is "reason without desire," Aristotle emphasizes that laws should be
detached from the emotional impulses or personal preferences of rulers or citizens.
Instead, they should be based on objective, rational principles aimed at promoting justice
and virtue. This understanding of law as rational and impersonal sets it apart from mere
expressions of power or authority and aligns it with the idea that law’s primary purpose is
to cultivate a just and harmonious society.

H.L.A. Hart’s view of law is based on his concept of a system of rules that govern society.
For Hart, law is not merely a collection of commands backed by sanctions, as the classical
legal positivists, like John Austin, suggested. Instead, Hart proposed a more nuanced theory
in which law consists of both primary and secondary rules. Primary rules are those that
impose duties on individuals, such as prohibitions or requirements for certain actions.
Secondary rules, on the other hand, are rules that allow for the creation, modification, and
enforcement of primary rules, providing a structure for how the legal system operates.

Hart emphasized the importance of the rule of recognition, a fundamental secondary rule
that determines what counts as law in a given society. This rule allows members of the
society to identify valid laws and provides the foundation for the legal system’s legitimacy.
 ANOZIE’S NOTE

For Hart, law is a social construct, based on the practices and acceptance of the society,
rather than on moral principles or divine commands. His view contrasts with natural law
theories, which claim that law derives from universal moral principles.

In Hart’s framework, law is not static but evolves in response to changing social needs and
circumstances. He also recognized the importance of discretion within the legal system,
particularly in judicial decision-making. Judges, according to Hart, may interpret and apply
the law in ways that reflect the complexities of society, especially when faced with
ambiguous or novel legal questions.

Ultimately, Hart’s definition of law emphasizes its role as a system of rules that is both
practical and adaptable, founded on the practices of the society, and capable of resolving
disputes through a structured and recognized framework of authority.

According to Kelsen, the essence of law lies in its norms, which are rules that guide and
regulate the behavior of individuals within a society. These norms are not derived from
morality or human will, but from a hierarchical system, with each legal norm being
validated by a higher norm. At the top of this hierarchy is the "Grundnorm" or "basic norm,"
a hypothetical foundational norm that serves as the source of all legal authority in a given
legal system. The Grundnorm itself is not enacted or written; it is presupposed and
accepted as the basis for the entire legal system's validity.

In Kelsen's view, law is a dynamic system of interconnected norms, and its authority stems
from the acceptance of the Grundnorm by the legal community. This system allows for the
creation, modification, and enforcement of laws, but the legitimacy of those laws is always
contingent upon their consistency with the higher norms in the hierarchy. Kelsen’s theory
emphasizes that law is a self-contained system, separate from moral judgments or political
ideologies, and its validity depends on its compliance with the established legal framework,
not on its moral or ethical content.

Kelsen’s Pure Theory of Law marks a significant departure from natural law and legal
positivism by advocating for a purely formal and systemic understanding of law, focused on
its structure and internal coherence, rather than its moral or practical implications.
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