JURISPRUDENCE (FROM COURSEWORK)

-The word "jurisprudence" derives from “juris prudentia”, a Latin term meaning the science or knowledge of law
-In simple terms, jurisprudence is the philosophy and theory of law.
-There are several schools of thought in jurisprudence that aim to understand the nature, purpose, and function of
law in society.
-Furthermore, it was defined as the study of general theoretical questions about the nature of laws and legal
systems, about the relationship of law to justice and morality and about the social nature of law.
-School of thought can be defined as a perspective of a group of people who share common characteristics of
opinion or outlook of a philosophy, discipline, belief, social movement, economics, cultural movement or art
movement.
-These different schools of legal theory include Positivism, Legal Realism, The historical and anthropological
school,

NATURAL LAW
-Natural law is a school of legal theory that posits that law is based on a universal moral order that is inherent in
human nature.
-It holds that there are certain moral values, rights, and responsibilities that are intrinsic to human beings and that
laws should be based on these values.
-Natural law theory is based on the idea that natural laws are universal and are not based on any culture or customs.
It is a way society acts naturally and inherently as human beings.
-These principles are believed to be universal and unchanging, providing a basis for evaluating the legitimacy of
human-made laws.
-Natural law theorists argue that laws should align with these inherent principles to be considered just and valid.

Development of Natural Law

1) The Ancient Theory
Aristotle on Natural Law
-The Natural Legal theory was first encountered in Greek philosophy and predominantly elevated by Aristotle.
-Aristotle's natural law theory is grounded in his teleological worldview, which emphasizes the idea of everything
having a natural purpose or function. He believed that human beings, like all things in nature, have an ultimate
purpose. For humans, this purpose is to live a life of eudaimonia (highest human good), often translated as
"flourishing" or "well-being."
-According to Aristotle, eudaimonia is achieved through the development of virtuous character traits and the
pursuit of rationality.
-Aristotle argued that the principles of natural law are not written down or legislated by any authority; rather, they
are discovered through rational reflection on the inherent nature of human beings.
-These principles are universal and unchanging because they are rooted in human nature itself. For Aristotle,
natural law is based on the idea that humans have an innate capacity for reason, and this rationality allows them
to discern what is morally right and just.

Plato’s Views on Natural Law

-Plato’s philosophical insights laid the groundwork for the development of natural law theory.
-He believed that there exists an objective and universal standard of justice, which he referred to as "the Good"
or "the Form of the Good." According to Plato, the Good is the highest and most fundamental reality, representing
the ultimate source of all moral and ethical values.
-Principles of natural law are not man-made but are discovered through reason and philosophical reflection on
the nature of the Good.
-He argued that a just society could only be realized when its citizens are educated in the pursuit of wisdom and
virtue, as these qualities are in harmony with the principles of natural law.

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2) Roman Natural Law
Thomas Aquinas on Natural Legal Theory
-Aquinas, a 13th-century theologian, and philosopher, sought to bridge the gap between faith and reason, drawing
on the works of ancient philosophers like Aristotle and merging them with Christian theology.
-The master principle of natural law, wrote Aquinas, was that "good is to be done and pursued and evil avoided."
-Aquinas stated that reason reveals particular natural laws that are good for humans such as self-preservation,
marriage and family, and the desire to know God.
-Aquinas defined this last type of law as "an ordinance of reason for the common good" made and enforced by a
ruler or government. He warned, however, that people were not bound to obey laws made by humans that
conflicted with natural law.
-For a war to be just, there must be these three conditions, a declaration by the ruler to defend the "common good"
against enemies, a “just cause" for an attack on an enemy "because they deserve it on account of some fault" such
as avenging wrongs they have committed and a "rightful intention" to advance good or avoid evil such as
punishing evil-doers and not simply grabbing land or goods. (Influenced the development of international laws
on war)
-Aquinas had four major sections of Natural Law: the lex Divina (the law is given by God and its revealed through
scriptures which are interpreted by the church), the lex Aeterna (the universe is governed by God and everything
happens because of his deliberate plan), the lex Naturalis and the lex Humana (are not generated by our reason
but rather they are imposed by governments, groups, clubs, societies, only right to follow if they are consistent
with natural law)

3) Natural Law and Social Contract

-The concept of the social contract stands as a revolutionary aspect of natural law theory, profoundly influencing
political philosophy and the development of modern societies
-The social contract theory addresses fundamental questions about the legitimacy of government, the rights and
responsibilities of citizens, and the nature of political authority.

Jean-Jacques Rousseau's Social Contract Theory: A Critical Analysis

-Rousseau's Social Contract Theory begins with the famous phrase, "Man is born free, and everywhere he is in
chains."(This means that men are born free but society and binding institutions have enslaved them)
-Rousseau posits that the formation of a just and legitimate political order can be achieved through a social
contract, where individuals collectively agree to establish a civil society.

Core concepts of Rousseau's theory

1) General Will: This represents the collective desires and aspirations of the community.
2) Popular Sovereignty: Rousseau asserts that true sovereignty lies with the people collectively, not with rulers
or elites.
3) Freedom: According to Rousseau, civil freedom is attained when individuals participate in creating laws that
they must then obey.
4) Emphasis on Direct Democracy: Rousseau advocates for direct democracy in small, homogeneous
communities, where citizens actively engage in decision-making processes.

John Locke's Social Contract Theory: A Foundation of Modern Political Thought

-His social contract theory laid the groundwork for many of the principles that underpin democratic societies
today.
-Locke's social contract theory is fundamentally rooted in the belief in the natural rights of individuals, primarily
life, liberty, and property.

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-He said naturally people exist with these rights but if not protected it can cause chaos and insecurity and thus
proposed the formation of the social contract.
-According to him, individuals voluntarily come together to form a political society by giving up some of their
absolute rights to a government. In return, this government is entrusted with the responsibility of protecting and
preserving the remaining rights of its citizens.

Key Elements of the Social Contract

1) Consent: Locke emphasized the importance of the consent of the governed.
2) Limited Government: Locke argued for a government with limited powers. (They shouldn’t infringe on the
natural rights of people)
3) Right to Revolution: People have a right to rebel against a government that becomes tyrannical.

4) The Modern Era of Natural Law

John Finnis' Natural Law theory,
-Often referred to as the "New Natural Law Theory," builds upon the traditional Natural Law tradition while
introducing some unique elements.
-At its core, his theory asserts that there are objective moral principles inherent in the nature of human beings and
the world, and these principles serve as the foundation for just laws and ethical norms.
-He lists seven basic good that are aspects of human flourishing that are universally valuable and worth pursuing
and they include life, knowledge, friendship, play, aesthetic experience, practical reasonableness, and religion.
These goods form the basis for deriving moral principles and guiding human action.
-Finnis argues that the principles of practical reason are essential for discerning how these basic goods should be
pursued.
-One notable feature of Finnis's Natural Law theory is his rejection of the concept of "incommensurable" values.
He contends that all values, including the basic goods, can be compared, and evaluated through the application of
practical reason.

Lon L. Fuller's Views on Natural Law Legal Theory

-Fuller's views on natural law were primarily articulated in his influential work, "The Morality of Law," published
in 1964.
-Fuller believed that there is an intrinsic connection between law and morality. He argued that the law should
align with certain moral principles and norms to be considered legitimate and just.
-It differs from the classical natural law theorists as he sought a more secular and pragmatic understanding of the
relationship between law and morality.
-Fuller used his grudger informer scenario to explain the lack of morality in law if people were punished merely
based on anonymous informers who had personal grudges with the people they informed on.

Natural Law in the Ugandan Context

1) The principle of the common good.
-Article 21(1) of the 1995 Ugandan constitution that states that all persons are equal before and under the law in
all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal
protection of the law.
-Article 21(2) goes on to emphasize that Without prejudice to clause (1) of this article, a person shall not be
discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed, or religion, social or
economic standing, political opinion or disability
-Article 50 of the constitution allows for any person who claims that a fundamental or other right or freedom
guaranteed under this Constitution has been infringed or threatened, is entitled to apply to a competent court for
redress which may include compensation.
-Insert The FIDA Case, where sections of the divorce act that provided different parameters for men and women
to acquire a divorce was held to be null and void as it was discriminatory and against the constitution.
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2) The Social Contract
-Thomas Hobbes, in his work "Leviathan," proposed the idea of a social contract as a solution to the problem of
the state of nature, where people exist in a state of perpetual conflict and insecurity. In Hobbes' view, individuals
voluntarily give up some of their natural rights to a sovereign authority (the Leviathan) in exchange for protection
and security.
-Article 43(1) of the constitution which allows for derogation of rights, or limitation of their enjoyment, in respect
of two exceptional circumstances or scenarios, namely, where the enjoyment of one's right "prejudices" either the
personal rights of others or the public interest.
-Look at the Coronavirus Lockdown Limited the right to freedom. Buwembo v Attorney General where court
upheld section 179 of the penal code act cap 120 on libel because though it limited freedom of speech it was key
in the protection of one’s reputation thus showing how social contract principle is even upheld in courts of law.
3) Principle of Moral Foundation.
-Grotius, a legal theorist, emphasized the existence of fundamental laws of nature that should guide human
conduct and legal systems. (Just use all the different scholars above to explain the principle)
-Article 44 of the constitution which sets out non derogable rights like freedom from torture and cruel, inhuman
or degrading treatment or punishment freedom from slavery or servitude; the right to fair hearing and the right to
an order of habeas corpus all which are based on the moral foundation that no one should go through situations
like torture or slavery in this modern day.
-Uganda v Oryema where when sentencing an elder man for murder court considered the fact that older offenders
are always less of a threat to society than young offenders to reduce the sentence thus showing natural law in our
current jurisprudence.
4) Human laws must be specific and tailored to the particular circumstances.
-This was the view by Aristotle and Aquinas.
-Article 44; Slavery used to be accepted but now is non-derogable.
-Take in Article 3; which is defence of the constitution because of the extra constitutional ways that the
constitution had been overthrown in the past.
-Law and advocacy for Women in Uganda v Attorney General where the courts banned Female Genital
Mutilation for being a barbaric and disgusting act yet before it was a common and acceptable practice This even
led to the enacting of the Prohibition of Female Genital Mutilation Act 2010 just to end this formerly acceptable
practice turned which all is in line with the natural law principle of tailoring laws to the prevailing circumstances
of society.

Differences between Ugandan Law and Natural Law

1) Many natural law scholars, such as Thomas Aquinas and Hugo Grotius, argued that divine law, or the law of
God, was above human law.
-They believed that divine law provided the ultimate source of moral and legal principles, and human laws should
be in harmony with or derived from divine law.
-Article 2, the constitution is the supreme law of the land and any law or custom against it is contrary to that
extent.
-In the case of Dimanche Sharon and 2 others v Makerere University, court held that exams and tests set on
Saturday should not be stopped and were not invalid merely because the applicants were Seventh Day Adventists
and it was their holy day.
2) Natural law allows for citizens to revolt when disgruntled with the government which is not the case for
Uganda.
-Article 3; Defence of the constitution. Outlaws overthrowing the constitution by extra constitutional ways.
-Chapter VI of Uganda’s Penal Code Act outlaws any form of revolting that citizens are encouraged to do under
natural law and considers it acts of treason.
-It provides for courts of law to deal with any rights that have been infringed. Article 28 provides for the right of
a fair trial. Centre for Health, Human Rights and Development & 3 Others v. Attorney General where the
government was found to have violated the constitution because of not setting up proper maternal antenatal
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services in its public hospitals. Instead of revolting the citizens had to go through a court process for their
grievances to be heard and straightened out which is not the way natural law.

3) Under Natural Law, moral considerations are key however in Uganda the law prevails. This can be seen through
the prescribed punishments under the Law, where under the moral perspective, death is erroneous but it is given
as punishments for crimes in Uganda.
-Section 286 of the Penal Code Act which gives death as the sentence for robbery with a deadly weapon or robbery
that causes death or grievous harm
-Asiku Jamil and Anor v Uganda where the accused were sentenced to death for carrying out a robbery with a
gun and shooting one of their victims in the thigh and also killing a policeman. Such a conviction would not be
possible under natural law and this we can see how it differs from Uganda’s jurisprudence.

4) Natural Law can be more flexible because it does put the moral perspective into consideration as opposed to
Uganda. (Strict conformity to laws which can in some instances defeat justice while in Natural Law relying on
moral perspective which ensures every case is determined on its facts)
-Like the application of the literal meaning of the constitution in the case Hon. Theodore Ssekikubo & Others V.
The Attorney General and 4 Ors)

Shortcomings of Natural Law

1) Cultural and Moral Diversity (Different places have different cultures and therefore Natural Law principles
might not be wholly inclusive)
2) Legal Pluralism; Most societies do employ various legal theories and these can co-exist in order to get good
decisions.
-Human Rights Network Uganda v Attorney General (Constitutional Petition No. 56 of 2013) where the court
declared Public Order Management Act unconstitutional because it empowered the police to prevent and disperse
public gatherings which goes against the right to assembly under Article 29 of the Constitution of Uganda.

LEGAL REALISM
-Legal realism can be defined as a legal philosophy or theory that emphasizes the importance of real-world
practical considerations, such as social, economic, and political factors, in the application and interpretation of
law.
-The basis of legal realism is that the legal realists distance themselves from the traditional definition of the law
as a body of rules and principles enforced by law and emphasize judges’ influence on the law and claim that to
be the law.
-Accounting to Henry Hart and Albert Sacks, the very purpose of legal institutions is to maximize the total
satisfaction of valid human desires and successful pursuit of this goal demands an efficient legal system

American Legal Realism

-Mr. Wendell Holmes Jr (1841 - 1935) is considered the father of American legal realism and he is known for
the “bad man” interpretation of the law. Holmes downplayed the role of precedent when he famously asserted
that it is revolting to have not better reason for a rule than that so it was laid down in the time of Henry IV.
-Holmes also rejected the notion of immutable legal principles; emphasised the importance of understanding law
within its practical, contextual, and evolving framework; and pioneered a pragmatic approach to jurisprudence.
-He based his theory law is experience and logic and should not be set on basically abstract principles and
encouraged the use of pragmatism and empiricism as opposed to abstraction in coming to judgement as he was a
Supreme Court Justice of the United States.
-Homes Jr also emphasized that the law has nothing to do with morals and a clear distinction should be made
between the laws and morals.
-Lochner v New York, the brief facts is that in this case, a statute was struck down on the basis that it restricted
employees in a bakery to only sixty hours of work a week and in turn affecting the freedom of contract between
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parties, however Oliver Wendell disagreed and claimed that the freedom of contract should not extend to
exploitation of workers and thereby using common sense and pragmatism.
-Karl Llewellyn (1893 – 1962) adopted the functional approach to law and opined that the institution of law
consists of a “body of far-reaching values and ideals which, though to a large extent implicit rather than expressly
avowed, may, nevertheless, form an immensely influential part of the institution of law as a whole.”
-He established a jurisprudence serving ordinary people and quenched the immense worry of the public arising
from the belief that the courts have moved away from stable decision-making, “in favour of deciding cases on the
basis of their sentiments, and then simply seeking for ex post facto justification in their judgments.
-basically divided decision making into two, the grand style where majority of the decision was not based on
precedent and the formal style where a judge based the decisions on precedent and ensuring the law is consistent.
However as a realist the grand style was the major emphasis as it ensured more room for legal reasoning.
-Jerome Frank. Held that law should be looked at as a social and psychological phenomenon and also
emphasized that an abstract of principles cannot be what the law is defined. He emphasized pragmatism especially
and legal reasoning in making decisions in order to achieve the rightful outcome.
-H.L.A Hart (1907 – 1992) and Albert Sacks (1920 – 1991), for their part, argued for a concept of "soft
positivism" that emphasised the importance of rules and legal structures in guiding judicial decision making. They
believed in a more flexible approach, emphasized the role of judges’ values and social context in shaping legal
outcomes.
-Thus to them, judges make for the best law makers – over and above the legislature.
-The importance of discretion in judicial decision-making was the greatest emphasis of Herbert Wechsler (1909
– 2000). He asserted that such discretion should be based on principle – not just that the decisions are good. He
encouraged reformers to try to craft reasonable and workable doctrines that reflect, preserve, and when possible,
reconcile all of the legitimate values at stake.
-Richard Posner (1939 – Present). He is famous for his pragmatic approach to decision making, and the view
that to be pragmatic is to be instrumental, forward looking, empirical, skeptical, and “anti-dogmatic.

Important Decision on Legal Realism

-Amissah J.P at the Botswana Court of Appeal, that “…the Constitution is the Supreme Law of the land and is
meant to serve not only this generation but yet unborn. It cannot be allowed to be a lifeless museum piece. On the
other hand, Courts must breath (sic) life into it as occasion may arise to assure the healthy growth of the state
through it... it is the primary duty of Judges to make the Constitution grow and develop in order to meet the just
demands and aspirations of an ever developing society which is part of the wider society governed by acceptable
concepts of human dignity.

Scandinavian Realist School of Jurisprudence

-Scandinavian legal realism is a legal philosophy that emerged in the early 20th century in the Nordic countries
of Denmark, Norway, Sweden, and Finland.
-Axel Hägerström: He was a Swedish philosopher and legal theorist who is considered to be one of the founders
of Scandinavian legal realism. He argued that law cannot be understood solely through the application of abstract
legal rules and principles, but rather through an understanding of the social and economic context in which legal
rules and decisions are made.
-Alf Ross: He was a Danish legal theorist who is considered to be one of the leading figures in Scandinavian legal
realism. He emphasized the role of judicial decision-making in shaping the law and argued that legal rules should
be understood as tools for solving practical problems rather than as fixed and unchanging principles. -He also
stressed the importance of understanding the social and economic context in which legal decisions are made, and
the role of legal policy considerations in shaping legal decisions.
-Anders Vilhelm Lundstedt: He was a Norwegian legal theorist and sociologist who is considered to be one of
the leading figures in Scandinavian legal realism. He emphasized the role of the social sciences in understanding
law, and argued that law should be understood as a social phenomenon that is shaped by social and economic
factors.
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-Karl Olivecrona: He was a Swedish legal philosopher and jurist who is best known for his work on legal
reasoning and the nature of law. He believed that the study of law should be approached from a philosophical
perspective, and that legal reasoning is fundamentally a form of practical reasoning.
-Also believed that the law is based on rationality and fairness
-In General they had the view that the judges play a crucial role in framing the law, that all circumstances should
be put into perspective in coming to a fair decision including social and economic factors.

Tenets of Legal Realism

A tenet is an opinion, belief or principle that is held as an absolute truth by someone or a group of people
1) Common Sense and Pragmatism
-In the words of Richard Posner, to be pragmatic is to be instrumental, forward looking, empirical, skeptical, and
antidogmatic.
-Richard Posner and his analysis on the realist school of thought he lays out three assertions of a pragmatic judge
in that a pragmatic judge is looking at the best decision present, he does not have regard to past decisions as a
basis for decision and explores a route that arrives at the best decision
-Attorney General v Osotraco, in this case, the court overturned Section 14 of the Government Proceedings Act,
this section of the act mainly stated that court has powers to grant all remedies against government except
injunctions. However, in the trial court, Egonda Ntende J held that the section would not be applicable in that
particular instance and gave orders of eviction against the appellant and on appeal, Justice Mpagi Bahigene agreed
with the trial judge and held that, “the law has to be construed ion line with the thinking or norms of progressive
societies.
-The pragmatist judge is looking for the best decision having in mind present and future needs and “so does not
regard the maintenance of consistency with past decisions as an end in itself but only as a means for bringing
about the best results in the present case
-In Ruturi & Anor V Minister for Finance & Anor, court observed that it is for judges to give meaning to what
the legislative has said and it is this process of interpretation that constitutes the most creative and thrilling
function of a judge.

2) Case by Case approach

-Every case is individual and on its own basis.
-According to Posner, to a realist, precedent is only a source of information and a limited constraint on freedom
of decision, but it is not where the judge will get “the rule of decision for the truly novel case.
-Jerome Frank in his book, Law and the Modern Mind stated the doctrine of following precedents may have less
practical importance to the ordinary man than its mere ardent advocates accord it, and second, even when properly
and conscientiously utilized, the practice of following the precedents cannot guarantee the stability and certainty
it seems to promise.
-Mbunya Godfrey V Uganda, the Supreme Court emphasized that ‘no two crimes are identical

3) Judicial Discretion and Activism.

-As stated by Lord Denning, The duty of the judge is to make the law live and breathe.
-Legal realism suggest a lot of judicial discretion in making decisions.
-This is especially vivid in constitutional interpretation (It being dynamic and all the above; DCJ Manyindo in
the Tinyefuza case)
-Marital Rape is not clearly stated in any law however. In the case of Uganda V Nakoupuet, Justice Batema had
this to say in regards to the culture in contention “This court condemns the culture of forcefully chasing, abducting
and raping girls and woman to make them wives. It is a brutal and backward culture promoting violence against
women. Nobody and no one’s daughter, sister or mother deserves being raped in the name of marriage. This vice
of cultural rape is a resilient, pervasive and persistent culture promoting gender stereotypes.”

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4) Contextual Decision Making
-Legal Realism emphasizes the importance of considering the broader social and economic context in legal
decisions.
-In Dr. Busingye Kabumba and Another v Attorney General, Justice Egonda-Ntende in finding that the
appointments as recommended by the Judicial Service Commission were unconstitutional, considered both the
purpose and effect of the same.
-In Mugenze v Mugenze, in this particular case, the defendant, the wife was not able to prove that the activities
she had done had a beneficial contribution to the property she was claiming however, the Judge Monica K.
Mugenyi recognized that indeed in some instances a spouse can acquire a beneficial interest in the property
without necessarily making a financial contribution. (Recognition of beneficial contribution in property putting
into perspective marriages in Uganda where one party contributes financially however the other takes care of the
home and children)
-This was illustrated in the case of Iwolit v Imwamit were Ag. Judge F. Mwondha held that corroborate
circumstantial evidence of adultery was enough to prove that adultery subsisted and a decree nisi awarded. (Went
away from Dennis v Dennis, where proof of penetration was a must)

5) Flexibility and Skepticism of Formalism

-Realists are critical of formalistic approaches to law that rely solely on precedent or abstract legal principles,
believing that these approaches may not reflect the realities of legal practice.
-Article 126(2) (e) of the Constitution enjoins courts to administer substantive justice without undue regard to
technicalities. Such decision making may clarify, refine or harmonize the meanings in the legislative language.
-Uganda Association of Women’s Lawyers v AG, Filing the petition out of time was overlooked as a mere
technicality and justice should not be defeated.

6) Empirical Analysis
-Legal realists often employ empirical research to understand how the law operates in practice, looking at the
actual behavior of judges, lawyers, and legal institutions.
-Ayiko Mawa Solom V Lekuru Annet Ayiko, Justice Stephen Mubiru took a very in-depth approach as he
discussed all the requirements for a valid Islamic marriage in detail.
-In Ham Enterprises Limited & 2 Ors V Diamond Trust Bank (U) Limited & Another, the Supreme Court held
that syndicated lending transactions between foreign banking/non-banking institutions and Uganda is legal.
-According to Muwema & Kimara (2023), the decision was influenced by the idea that Ham is using legal
technicalities to avoid paying his debts said to be owed to DTB and the view that the High court decision which
was made in favor of Ham outlawed syndicated lending transactions between foreign banks and Ugandans

7) Evolving Perspectives
-Jurisprudence evolves in response to changing societal norms and expectations, reflecting the adaptability and
pragmatic nature often associated with Legal Realism.

8) Judge Balancing Consequences

-In line with this, is the main criteria the judge puts into perspective in coming to a decision is the impact that a
particular case will have in the future.
-Kesavananda Bharati v State of Kerala, this is a crucial case in the aspect of the basic structure doctrine and
basically stated that as much as the constitution provides for the aspect of an amendment when the amendment is
intended to disrupt the basic structure of the constitution to the point where it loses meaning such amendment
should not be considered.
-Gilbert Bukenya v AG, on finding that the actions of the IGG were unconstitutional court made the decision
apply prospectively and not retrospectively in order to ensure that courts are not opened up to a plethora of cases
that had been litigated unconstitutionally by the AG.

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Criticisms of Legal Realism.
1) Uncertainty and Lack of Predictability
2) Neglect of legal doctrine and precedent
3) Subjectivity and Bias
(Use any of the cases)

Recommendations for Application for Legal Realism

1) Advocate for Legal Realism in Practice.
-Not all judges may subscribe to Legal Realism, and some cases may still heavily rely on strict statutory
application and precedent. For instance, in Rebecca Nagidde V Charles Steven Mwasa, the court while construing
the Divorce Act stated that, the provisions of the law may be archaic but they still represent the law on divorce
and no court administering the law as it is can ignore them
2) Legal recognition of the experience of Ugandans in their day to day lives. (Dr.Sylvia Tamale, Only 5% of
Ugandan Disputes are taken to courts)
3) Judges should have the courage to serve the interests of the society whenever it is prudent and fair to do so.

Opportunities missed for Legal Realism

-Justice Ruth Barder Ginsburg when she averred that; “we live in a democracy which can be destroyed if judges
function as platonic guardians.
-Immediately the 1995 Constitution was born, attempts to challenge human rights violations were often met by a
Judiciary that appeared either too reluctant or too steeped in the old and out-dated methods of adjudication to
seriously consider the substantive rights that were brought to it for protection.
-In Rwanyarare & Anor. v. Attorney General, the court declared the petition time barred, stating that Article
126(2) had not done away with the requirement for compliance with the rules of procedure in litigations of a
constitutional nature.
-Arguably, the greatest missed opportunity for legal realism in Uganda has been the failure of the Supreme Court
to abolish the death penalty entirely in Attorney General V Susan Kigula & Ors. Similarly, in Mabirizi & Ors v
Attorney General, the Supreme Court erroneously held that the presidential age limit provision was not a pillar
of the 1995 Constitution and the Constitutional Court.
-On several instances, positivist thinking by post 1995 judges has promoted infringements on the rights of several
Ugandans. The Court of Appeal in Namenkere v. Mwanja, held that in a cohabitation, the property acquired did
not constitute ‘matrimonial’ property irrespective of the substantial contributions made by the women in such
relationships. Similarly, Justice Ssekaana in Bigala v Namuwenge declared that courts will not aid a wrongdoer
in an illicit relationship such as nonmarital cohabitation and neither will it make a declaration as to property using
marriage laws.
NB: John Powell, “Consider the reason of the case, for nothing is law that is not reason.”

LEGAL POSITIVISM/ANALYTICAL JURISPRUDENCE

-The word Positivism derives from the Latin positum, which refers to the law as it is laid down or posited
-The core argument of Legal Positivism theory is the view that validity of any law can be traced to an objectively
verifiable source. They believed that positive law was something ascertainable and valid and without regard to
subjective considerations.
-Legal positivism is defined as “the theory that legal rules are valid only because they are enacted by an existing
political authority or accepted as binding in a given society, not because they are grounded in morality or in
natural law.”
-it is an effort to establish a study of the nature of law, disentangled from proposals and prescriptions for which
laws should be passed or how legal practice should be maintained or reformed.
-From a positivist perspective, it can be said that “legal rules or laws are valid not because they are rooted in
moral or natural law, but because they are enacted by legitimate authority and are accepted by the society as such.

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-Thomas Hobbes; His legal philosophy was based on the supremacy of Sovereign power. According to him, law,
however arbitrary or unjust, is law if the Sovereign has commanded so.
-In this, he meant that laws are the rules of just and unjust, nothing being reputed unjust that is not contrary to
some law.
-Jeremy Bentham; He introduced the principle of utilitarianism. (Achieving the greatest happiness of the
maximum number of people) He believed that every law must minimize the pain and maximize the pleasure of
the people who are governed by it.
-Legislation was a branch of morals being the principles upon which man’s actions were to be directed to the
greatest quantity of possible happiness by rules of a permanent kind, as distinguished from private morals which
are directed only to oneself.
-The import of this is the idea of reduction of laws to something ascertainable which represent what people are to
be governed by.
-He also posits the ideas of sovereignty, command and sanctions which underpins the gist of the theory.
-Bentham there existed the legislature as a sovereign which made laws, primarily through codification that
command or permit some form of conduct and which could be enforced by punishment and reward depending on
the circumstances.
-To positivism Bentham primarily asserts a separation of law and morality and that law is a state of affairs and
not a proposed state of affairs the latter deemed more valuable in terms of utility than the former.
-John Austin; His work on positivist jurisprudence is similarly based on concepts of sovereignty, commands or
the habit of obedience. He sought out to show what the law is and not what it ought to be.
-The sovereign who is the omnipotent law giver must be illimitable and indivisible. Austin gives much emphasis
to the fact that this law giver must be determinate for no indeterminate sovereign can command expressly or
tacitly or can receive obedience or submission
-Austin thought that laws can only be enforced truly by degrees of pain. Sanction is an indispensable ingredient
in the definition of law. He defines it as some harm, pain or evil that is conditional upon the failure of a person to
comply with the wishes of a sovereign.

Modern Scholars
-HLA Hart; Hart argues that the law is more than a command backed by sanction but rather a system of rules-
fundamental rules accepted by officials as stipulating procedures by which the law is enacted.
-It also argues while there is no necessary moral content to a legal rule a particular legal system may by
conventional rule make moral criteria necessary or sufficient for validity in that system.
-Major concepts of Hart’s definitions; hat laws are commands of human beings, that there is no necessary
connection between law and morals, that the analysis of legal concepts is worth pursing, that distinct from and
not hostile to the sociological and historical enquiries and critical evaluation theories, that a legal system is a
closed logical system in which correct decisions may be deduced from predetermined legal rules by logical means
alone and finally that moral judgements cannot be established as statements of fact by rational judgement,
evidence or proof.
-Hans Kelsen; He too believed in the law as a creature of human beings distinct from morals. In his words the
positivity; “lies in the fact that it is created and annulled by acts of human beings thus independent of morality
and similar norm systems. This constitutes the difference between positive law and natural law, which, like
morality is deduced from a presumably self-evident basic norm which is considered to be the expression of the
‘will of nature’ or of ‘pure reason.
-Kelsen's pure theory of law is based on the idea that law is a system of norms, or rules, that are hierarchically
organized. The basic norm, or "Grundnorm," is the foundation of the legal system and all other norms are derived
from it.
-Kelsen's justification for the pure theory of law was that it would allow for a more objective and scientific
understanding of the law, free from the biases and assumptions of traditional legal theory.
-Kelsen’s Theory was shown in the famous case of Commissioner General of Police Ex Parte Matovu v Attorney
General, in holding that the 1966 constitution was legal, Court relied on Kelsen’s Theory and its four cardinal
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principles that there must be an abrupt political change (coup d'etat), not contemplated in the old legal order, that
then destroys the old legal order. The new Constitution and its laws must also be effective. And therefore this
legalized for the time being extra-constitutional ways on how to dethrone a sitting government and constitution.
-As stated in his theory, If they succeed…and the new order begins to be efficacious, because the individuals
whose behavior the new order regulates actually behave, by and large, in conformity with the new order, then this
new order is considered as a valid order. It is now according to this new order that the actual behavior of
individuals is interpreted as legal or illegal.
-However this has been eradicated, Article 3 of the 1995 Constitution comes in defence of the constitution against
extra constitutional ways. And we have also seen a step away from the Political Question Doctrine.

Justice Keen in the case of Speluncean Explorers; Justice Keen drew from the positivist school. He was strong on
the need to follow the law as it was, declining to let his emotions get in the way of his judicial duty.

Positivism in the Ugandan Aspect. /Principles of Positivism

1) Sovereignty.
-In Uganda, the Constitution is the sovereign.
-Article 2 reinforces the Constitution’s power by providing that it is the supreme law and it is binding on all
authorities and persons throughout Uganda. (Also stated in Justice Kanyeihamba in his book)
-Use the cases of Tinyefuza v AG and also Paul K. Semwogerere v Ag where the supremacy of the constitution
was held.

2) The Command Theory

-Austin defined it as a desire by a party with power to inflict evil if their desire is disregarded thereby imposing a
command to obey
-This was seen in the case of Salvatori Abuki V Attorney General where it was stated that courts should enforce
a law even though it is cruel and inhumane.
-In Rebecca Nagidde V Mwasa Charles Steven, Justice Egonda Ntende clearly expounded on the command
theory, he stated that; “these provisions of law may be or appear to be archaic but they still represent the law on
divorce, and no court administering the law as it is, can ignore them and instead step up its own requirements
such as irreconcilable differences as a ground for divorce.

3) Sanctions
-John Austin and Bentham especially emphasised sanctions as an indispensable feature of the law.
-However Hart in his modern view indeed stipulated that the law is more than only sanctions.
-As much as sanctions are part of the law, other directories and remedies are given to people. These include
declarations, damages, injunctions and many more. In Ayena Odongo v Attorney General, This was a
constitutional petition seeking among others a declaration that an act done in disregard of section 14(2) of the
Parliamentary Elections (Amendment) Act, 2010 is rendered a nullity. The judge noted that there are procedural
provisions that are merely directory and mandatory backed by sanctions.

4) What the law is and what it ought it to be.

-Positivists believe in what the law is and not what it ought to be.
-Article 28(12) of the Constitution that provides no person shall be convicted of a criminal offence unless the
offence is defined and then penalty for it prescribed.
-Susan Kigula v AG, the court held that Section 99 of the Trials on Indictements Act which called for mandatory
sentencing was unconstitutional. However did not do away with the death penalty as stating it was constitutional
in accordance with Article 22 of the constitution. (This shows strict adherence to how the law is)
-Justice Ngonda-Ntende agrees that the hanging is cruel and inhumane. However, he states that only Parliament
has the power to legislate the manner in which the death penalty should carried out. ‘‘In my view it is the duty of
Parliament to legislate the manner in which the death penalty should be carried out. …It is not for this Court at
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this stage to suggest what method should be acceptable as no evidence has been adduced for Consideration by
this Court. (This is still in the same case)
-In Zedekua Karokora V Kellen Karokora, Justice Eudes Keitirima denies the applicant a divorce claiming that
in accordance to Section 4 of the Divorce Act he had not met the criteria for divorce by not proving adultery. This
decision was per incuriam as it was against the previously set standard of each applicant both male and female
can satisfy a claim for divorce by proving any one of the grounds in the FIDA Case.
-Prof J. Oloka Onyango v AG, Anti-Homosexuality Bill inconsistent with the quorum requisite stipulated in the
constitution. (Silent on the other aspects of merit but forth)

Criticism to the Positivist School of Law

-Kelsen’s theory that legalizes extra constitutional ways of overthrowing a constitution.
-The positivist theory which speaks on no regard to culture, morality and ethics which has the potential to lead to
a lot of human rights violations (Use the Susan Kigula Case; where they found mandatory sentencing
unconstitutional)

HISTORICAL AND ANTHROPOLOGICAL SCHOOL

Historical Theory of Law
-The historical theory of law finds its roots in the Enlightenment period of the 17th and 18th centuries as a reaction
to the natural law positivism theories.
-The historical theory of law is a school of thought that emphasizes the importance of history in understanding
the development of legal systems.
-The historical approach to law derived its inspiration from Roman law, which was studied by commentators who
attempted to relate the foundations of society as a collective to the problems of their day.
-The founders of the school, such as Friedrich Carl von Savigny and Heinrich von Gagern, believed that law was
not a product of human reason, but rather a product of the historical development of a particular society.

Propositions of the historical theories of law

-Fredrick Carl Von Savigny; a prominent German jurist through his concept of Volksgeist introduced a new
dimension in the legal arena- the German historical school of thought anchored on the Volksgeist, or 'the spirit of
the people'.
-According to this theory, law is not a product of arbitrary legislation but rather a manifestation of the collective
spirit and consciousness of the German people.
-Explains the need to understand the interrelationship between law and people.
-Savigny's theory served as a cautionary stance against hasty legislative changes and the imposition of abstract
revolutionary legal ideas unless they were in harmony with the popular will, known as "Volksgeist.(Von Savigny
shared the same view as Johann Goffried Von Herder especially on the Volksgeist)
-His central idea posited that law emerges organically over time as a gradual evolution of the common
consciousness of a nation, deeply rooted in its historical culture and traditions.
-This idea is shown in the constitution; Article 1(Power is vested in the people), Article 2(Supremacy of the
constitution), Article 59(Right to Vote), Article 3(Defence of the constitution)
-Savigny's "Volksgeist", like Hegel and Herder, emphasized that a nation's legal system is profoundly influenced
by its cultural heritage, traditions, and the collective consciousness of its people.
- For him, the legal system was an integral part of a people's culture, not the result of arbitrary legislative acts but
a response to the impersonal forces inherent in the national spirit of the people.
-Moreover, Savigny that laws are not universally applicable but are deeply tied to the unique characteristics of
each society, including language, customs, and constitution. He drew a parallel between language and law,
asserting that neither could be applied universally to other people or countries.

-Georg Wilhelm Friedrich Hegel; Important figure in history of German idealism and the development of
German Romanticism.
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-He is best known for his development of the dialectical method, which he used to systematically explore the
nature of reality, knowledge, and history.
-Hegel believed that everyone would belong to a state and in that state, all differences would be dealt with.

-Henry Maine; He also stressed the distinct national character of law, highlighting that the legal framework of
one nation cannot be universally applied to others due to the unique historical, cultural, and societal factors at
play.
-Maine proposed a four-stage model for the development of legal systems, starting with laws commanded by
rulers, evolving into customary practices, being administered by intermediaries like priests, and culminating in
formal codification.
-Furthermore, he introduced the idea of legal fiction, allowing progressive societies to adapt their laws to
accommodate future developments.
-His ideas resonate with Montesquieu's belief that laws are influenced by climate, local situations, and accidents,
and they align with Burke's view of law as the product of a gradual and organic process deeply rooted in a society's
historical and cultural context.
-In the case of Attorney General v. Osotraco, the court made a significant ruling by granting the remedies of
eviction and injunction against the government and its officers, a departure from the traditional Common Law
protections afforded to sovereign entities. This decision emphasized the principle that everyone, regardless of
their status as a state or otherwise, must uphold and respect the Constitution.
-Similarly, in Dr. James Rwanyarare & Ors. v. Attorney General, the Constitutional Court reinforced the idea
that judicial power is derived from the people and should be exercised in their name, in accordance with the law
and the values, norms, and aspirations of the people.
-Also looking at the historical perspective, show how Article 3 came to the defence of the constitution against
extra constitutional ways of removing the constitution (Ghost of Exparte Matovu)
-Enactment of particular laws to cater for the unique history and cultures of Uganda for instance the Customary
Marriage (Registration) Act.

The anthropological theory of law.

-The anthropological theory of law is a subfield of anthropology that examines the relationship between law and
culture.
-Anthropological legal theories of jurisprudence posit that law is a social phenomenon that is shaped by culture,
history, and social context.
-These theories suggest that law is not a fixed set of rules, but rather a dynamic and evolving system that reflects
the values and beliefs of the society in which it operates.
-Anthropologists have also examined the ways in which law is used to regulate social behaviour, resolve disputes,
and maintain social order in different societies. Like Lord Templeman notes this theory of law is necessary in
identifying whether looking at primitive societies is useful in a better analysis of contemporary laws.

Propositions of the anthropological theory of law

-Radcliffe-Brown during the 20th century refused to recognize the customs of primitive peoples or developing
societies to comprise as law.
-They employed an approach that viewed law in a rigid Eurocentric manner as formal codified rules governing
the conduct of society. Thus “primitive” peoples without formal codes, courts, policemen/ prisons were thought
to lack anything that may be dignified by the appellation “law”.
-Like Evans-Pritchard noted there is no authority with power to adjudicate on such matters or to enforce a
verdict.” -Accordingly, custom was viewed as conformity enforced by overwhelming sentiment as opposed to
actual rules.
-In Uganda, customs are recognized but only to the extent that they’re in conformity with the constitution. (Law
and advocacy for Women in Uganda v Attorney General where the courts banned Female Genital Mutilation for

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being a barbaric and disgusting act yet before it was a common and acceptable practice this even led to the
enacting of the Prohibition of Female Genital Mutilation Act 2010 just to end this formerly acceptable practice.)
-Bruno Kiwuwa v Ivan Serunkuma, Prohibition of people of the same clan to marry. (Court upholding customs)
-Another approach adopted by anthropologists is to focus on the methods of dispute resolution as opposed to the
definition of law.
-This is a much broader and inclusive approach that encompasses native customs, norms, and local practices that
act as law in societies by focusing on the processes as a means to an end as opposed to a stringent format.
(Ugandan Courts reluctant, Use Uganda v Kanyamunyu, court refused to order an adjournment to the accused in
order to complete the Traditional Acholi Mata O’put ceremony of Uganda because it was not envisaged in the
constitution)

Missed Opportunities
-Legal Pluralism (Coexistence of a variety of schools of thought)

Criticisms
-Savigny in particular did not take into account the need for legislation in modern society.
-Maine's work has been criticized for its Eurocentric perspective, and for its portrayal of ancient societies as
homogeneous and unchanging, which is not entirely accurate.

SOCIOLOGICAL SCHOOL
-Sociological jurisprudence specifically seeks to understand law as a particular social phenomenon, in terms of
how it comes into existence, how it operates and the effects that it has on those to whom it applies.
-It was realised that a study of the various aspects of social life could assist in understanding the nature and
workings of the law.
-David Hume who, in his Treatise on Human Nature (1740), argued that law owed its origin not to some quirk
of human nature, but to social convention, and who described law as a developing social institution.
-Charles De Montesquieu; He was of the view that the legal process is somehow influenced by the social
condition of society. In his book ‘The Spirit of Laws’ (1748), he wrote “law should be determined by the
characteristics of a nation so that they should be in relation to the climate of each country, to the quality of each
soul, to its situation and extent, to the principal occupations of the natives, whether husbandmen, huntsmen or
shepherd, they should have relation to the degree of liberty which the constitution will bear, to the religion of the
inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.
-Rudolf Van Jhering; He argued that legal cases could not be solved alone on the basis of the body of enacted
law, and that judges were not able to simply arrive at their judgements through a process of logical deduction, but
that social and situational factors had to be taken into account.
-Moreover, he emphasized that “the origin of law is to be found in social struggles and urges every individual to
struggle for law because according to him, the life of law is a struggle, it can endure only if the individual is ever
ready and vigilant to defend his rights.”
-He held that the purpose of law was the protection of individual and societal interests by coordinating them and
thus minimizing occasions for conflict.
-Eugen Ehrlich; Ehrlich was an Austrian legal scholar and teacher generally credited with founding the discipline
of the sociology of law
-He recognized two complementary sources of law: first, legal history and jurisprudence—precedents that seem
useful, along with their written explications—and second, “living law” as manifested in current social custom
-He discusses the laws of different countries and concludes that legal development takes place less through
legislation or judicial science than through the development of society itself. (Fundamental Principles of the
Sociology of Law)
-For him law is derived from social facts and depends not on state authority but on social compulsion.

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-The real source of law is not statutes or reported cases but the activities of society itself and there is a “living
law” underlying the formal rules of the legal system and it is the task of judge and jurist to integrate these two
types of law.
-Ehrlich stressed the need for lawyers and judges to understand the social foundations of legal rules and thereby
develop them.

Common Propositions
1) Law is determined by and manifested in current social custom and practices.
-Article 126 of the Constitution, 18read together with Article 37 and Objective XXIV of the National Objectives
and Directive Principles of State Policy reveal that citizens have a right to practice their cultural/societal values,
customs and norms and courts of law have to take those values, customs and norms into consideration while
deciding matters.
-Section 14 of the Judicature Act which includes current custom and usages as part of the law applicable in
Uganda.
2) A change in societal conditions gives rise to a change in the law.
-Bourdillon put it, “we think of culture and tradition as coming from the past, something proven and stable on
which we can rely. In fact, tradition and culture constantly change according to the choices we make. We choose
things from the past that serve our present needs
3) That in the event of a conflict between societal and individual interests, the individual interests are to be
sacrificed for the realization of societal interests. (Article 43 which provides that in the enjoyment of the rights
and freedoms prescribed in the Constitution, no person shall prejudice the fundamental or other human rights and
freedoms of others or the public interest.

Cases under First Proposition

-Bruno Kiwuwa versus Ivan Serunkuma &Juliet Namazzi, A marriage of two members of the same Buganda
Clan was prohibited by the court. And Justice Remy Kasule held that such marriage was against the institution of
marriage in the society of the Baganda.
-Nice Bitarabeho Kasango Versus Rose Kabise Eseza, dispute between the wife and mother of the late Bob
Kasango on where he was to be buried. The mother claimed according to tradition he was to be buried in Japadhola
as the eldest son while the wife stated that he was to be buried in Fort Portal. Lady Justice Lydia Mugambe held
that the societal and cultural values have to be followed also in line with S.14 Judicature Act and if evidence has
been adduced to show he was of that culture he would have been buried in Tororo.

Cases under Second Proposition

-Law & Advocacy for Women in Uganda v Attorney General. (Finding of female genital mutilation
unconstitutional)
-Best Kemigisha v Mable Komuntale, The applicant, Queen of Toro sought the removal of a caveat placed on her
late husband’s land by the elder sister claiming according to tradition the queen couldn’t administer the land.
Court ruled that the applicant was entitled to administer the estate of her late husband under Article 21 and 31 (1)
of the Constitution which are on equality of men and women.

Non-Application of the Law/Missed Opportunities

-Luseleka & Ors versus Namalwa. Court declined to bury the deceased in Kakoola Village according to the
Baganda tradition and claimed that his dying declaration stipulating burial in his home in Mukono would suffice
and therefore ignoring the societal and cultural norms of the people of Buganda.
-Kanyamunyu Matthew v Uganda, court refused to order an adjournment to the accused in order to complete the
Traditional Acholi Mata O’put ceremony of Uganda because it was not envisaged in the constitution(This was a
missed opportunity of courts to recognize social norms and societal changes)

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Criticisms of the Sociological School
-Certain societal customs and practices are repugnant to universally cherished values like human rights. (Use the
case where they did away with female genital mutilation)
-Sometimes the change in societal conditions, practices and customs might not always yield a change in law.

THE MARXIST SCHOOL

-Among all the theories, it is the theory that managed to take hold of real world practice.
1) Karl Max
-Karl Marx, as evidenced by the school being named after him, was the leading thinker of the Marxist school.
-Marx's main contribution to jurisprudence is his view that law is not a neutral, objective institution, but rather a
tool used by the ruling class to maintain and reinforce their power and control over society
-Marx argued that the economic relations of a society are the driving force behind its legal and political systems,
and that law serves to protect the interests of the ruling class.
-He believed that the capitalist system, in which a small group of wealthy capitalists controlled the means of
production, was inherently exploitative and unjust, and that the law was used to uphold and reinforce this
inequality.
-Materialism would become a main theme of Marx’s theory. For Marx, the things that had to be studied were
things that gave life its true meaning, for example, food, water, and clothing. He felt that historically, the things
that happened to human beings could be understood through this dialectic.
-He came up with the idea of dialectical materialism. The study of how human beings are going to evolve in future
was essentially a study of human beings’ economic and social conditions and historical materialism. In this way,
Marx introduced two aspects of the dialectic; dialectical materialism and historical materialism.
-What is clear in both of this is that, for Karl Marx, they came down to economics. He distilled his ideas into the
notion that the nature of human beings or their identity depends on the material conditions around which their
productive activities happen.
-For Karl Marx, this was the basis of society and thus society only changes due to change in production processes
or production relations.
-Basically, law was not as important in this theory. What mattered were the economic relations. Marx noted that,
“Legislation, whether political or civil, never does more than proclaim, express in words, the will of economic
relations.
-Central to Marx’s theory was the notion of class. He noted that in a capitalist society, there were three classes;
wage laborers, capitalists and land-owners.
-He further noted that the three main classes would eventually fall into two classes; the bourgeoisie and the
proletariat. The first would live off the others and the second would be the working class. The two would thus be
two conflicting or warring classes.
-It was important to Marx to understand ideology. Ideology could be classified into three; a system of beliefs of
a particular class, a system of false beliefs (things people believe are true that are not backed by scientific
evidence) and how meaning and ideas are produced.
-The ideology of a particular society is influenced by the dominant class of a particular society based on their
material force.
-According to Marx, a lot of things that law creates are illusion. For Marx, the state and the law were instruments
of economic factors, and what is real are the material conditions of life.
-Morality was not an independent thing. Essentially, to understand whether something was moral or not would
depend on the economic structures of the society. Exploitation in a capitalism society was not unjust because that
was the economic system of that society. Therefore, exploitation in a capitalistic system was not immoral.

2) Friedrich Engels
-Like Marx, Engels believed that law is not a neutral, objective institution, but rather a tool used by the ruling
class to maintain and reinforce their power and control over society.

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-Engels believed that the law is a product of the economic and social relations of a given society, and that it serves
to protect the interests of the ruling class.
-He argued that the law of capitalist societies is inherently exploitative and unjust, and that it is used to uphold
and reinforce the existing class hierarchy.
-He believed that the law in capitalist societies would inevitably be replaced by a socialist legal system under the
dictatorship of the proletariat (workers)
-Engels also argued that the law should be an instrument of social justice, and that it should be used to protect the
rights of the working class and to promote the common good.

3) Karl Renner
-Renner’s view was how capital could transform itself into power and to show how individuals could exercise
this power over others.

4) Antonio Gramsci
-One of the contributions he made was explaining that ideological hegemony—the way that the dominant class
imposes its will on others is not just through violence but from popular consensus.
-For Gramsci, if society is to break free, it has to come up with a counter-hegemonic world view. (This could
maybe be a socialist view or a society in favor of the workers not the rich)

5) Evgeny Pashukanis
-The main idea he postulated was the commodity exchange theory. For him, everything was fixed to commodity
exchange. All legal relations are based on this exchange of commodities.
-Ultimately, the law is created around disputes and conflicts around commodity exchanges. He noted that law
reached its highest point of development under capitalism.
-Pashukanis noted (and this is one of the things that got him killed) that as long as there is law, it cannot be
claimed that there is a communist society since under a communist society nobody could be the boss of the other.

Criticism of the Marxist Theory

-Over emphasized the theory of class. (People are in classes according to their social status financially). Yet
people can be classified in other stratifications like race.
-The idea that the perfect society is a communist society where people live in harmony is probably unattainable
-It over simplified the law and basically made it seem like all the laws are meant to exploit the less powerful. (Yet
they’re labor laws, compensation laws and competition laws to curb this exploitation)
-Marxists are criticized for the lack of attention to human rights, which is seen as a necessary element of any legal
system. (Everything revolves around economics)

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