Introduction to

Law – Schools of
thought

By
Dr. Susan Nakanwagi
(PhD, LLM, LLB, DipLP)
 Content

Understanding of Law Functions of Law Theories of Law

Positivist Theory
Pure Theory
Natural Theory
Historical Theory
Sociological Theory
Utilitarian Theory
Functional Theory
Realist Theory
 What is ‘law’?
• For Class Discussion
 Def. by authors
➢ ‘What officials do about disputes is the law’. (Karl N. Llewellyn
(1893-1962) an American jurist and scholar)
➢ ‘The whole reservoir of rules on which Judges draw for their
decisions’. (Herman M. Gluckman (1911-1975)
➢ ‘It is the rule of action which is prescribed by some superior and
which the inferior is bound to obey’. (Sir Williams Blackstone, a
jurist (1723-1980)
➢ ‘The body of principles recognised and applied by the state in the
administration of justice’. (Professor John W. Salmond (1862-1924)
 Functions of Law
• It acts as a code of conduct. A rule of action to
ensure that persons, bodies and society live orderly
and peaceful lives.
• It is a means of resolving a dispute peacefully. It
administers justice through the court systems.
• It specifies the structure, framework and the order
for all aspects of life and society whether it be the
structure of government, business and so forth.
• Law acts as an instrument for regulating society. Law
prohibits what is wrong, lawlessness and unlawful
conduct.
• It creates law enforcement agencies, institutions,
administration of justice system, penal and
correctional institutions and facilities.
• It grants remedies and justice to those who have been
wronged.
Theories
of Law
• These are theories relating to the origin of law
• A theory determines how a society functions, including how social
phenomena are perceived and comprehended. In other words,
the origins of law and the reasons for its evolution can be
examined utilizing the theoretical viewpoints of various
researchers.
• The varied beliefs of legal scholars have become known as
'philosophies of law,' 'jurisprudence schools,' or simply 'theories of
law.’
• In spite of the fact that each legal philosophy is ordinarily dealt
individually for the sake of simplicity, the concept of jurist may
encompass multiple theories.
 • Positive law is derived from the word
"posit," which means "to place" or "to
put." Positive law is consequently the
law that is imposed by the rulers on
the circumstances.
(a) • John Austin, who proposed the
Positivist 'Command Theory of Law' in his book
The Province of Jurisprudence
School Determined, is the major proponent of
this theory.
• He defined law as "a command set by
a superior being to inferior beings and
enforced by sanctions."
• Positive law is any law enacted by a person legally
vested with the authority to impose laws on the
general populace.
• This can take the shape of the constitution, statutes
issued by the legislature, case laws made by judges,
and administrative agency rules and regulations.
Attributes of the Positivist Theory
- The existence of a known sovereign.
- The sovereign with no legal limitation ‘uncommanded
commander’: and
- The inferior must be in the habit of obeying the superior
given his coercive power to impose sanction.
Criticisms:
(1) Laws are not always stated in a commanding language such as
‘shall’ or ‘shall not’ as postulated by Austin
(2) Only in totalitarian regimes, where the nation is governed not by
the rule of law but rather by the whims and caprices of the dictator,
is the problem of a "uncommanded commander" a possibility. No
one, not even the sovereign, is said to be above the law in a
military regime.
(3) Austin made a false assumption when he said that people generally
obey the law out of reverence/fear for the sovereign's
wrath/sanctions. However, it might be argued that many individuals
respect the law because it is consistent with their principles or way
of life rather than out of apprehension of punishment.
 (b) Pure theory of Law
• Propounded by Professor Hans Kelsen
• Here, each rule's legal validity is established simply by
reference to the issue of whether it was established or
posited in accordance with the standards set out by the
relevant legal systems.
• In essence, a law is legitimate if it was produced by a
standard that was produced by a higher standard within the
legal system. The order of the norm's logical connections
must be maintained until we reach the grundnorm, an entity
not formed by legislation.
Criticisms
(1) The theory exclusively emphasizes the formal validity of the
law, not its purpose or impact on society. The moral
content of law is not a topic that the theory addresses. That
is, whether it is correct or incorrect, as long as it satisfies the
legal requirements or legitimacy of the law.
(2) Determining the grundnorm as a constitution in the modern
society is hard
Question: Can an imposed constitution by the military be
truly regarded as a grundnorm without the inputs from the
citizens in a democracy?
Overall, both positivists and pure theories hold that a
particular law is a law as long as it meets the
necessary technical standards of validity or formality.
It makes no difference if the law is morally just or
fairly applied.
 (C) Natural Law School
• Natural law means what is ‘fair’ ‘just’ or ‘right’. The
natural law theory argues that there are certain
objective principles in every man, no matter his race
or colour telling him what is ‘fair’ ‘just’ or ‘right’;
encouraging him to do what is good and abstain from
what is evil.
• Proponents of the theory of natural law include
Thomas Aquinas, Grotius and Zeno.
• Thomas Aquinas argued that ‘every law is derived
from God the ultimate law maker’. To him, ‘law is a
rule of reason for the common good and made by him
who is charged with the care of the community’.
• Hugo Grotius stated that natural law can be used as a basis to formulate
a coherent law that is suitable for all times and places. He believed that
natural law was different from positive law and that natural law can be
used to test the rightness or wrongness of man-made or positive law.
• The natural law philosophy has served as the basis for the development
of the concept of justice, human rights and democracy worldwide.
- (It was invoked by the Americans in their war of independence from
Britain; French revolution; independence of states; The Niger Delta
people in Nigeria have invoked the concept as the basis of their
agitation for a more equitable distribution of revenue from the mineral
resources derived from their area)
Criticisms:
(1) Natural law emphasises on ‘what should or ought to be done’
instead of ‘what is done’, in reality, the judiciary interprets what the
law is and the executive enforces what is contained in the rule book
as the laws.
(2) Natural law suffers from ‘the multiple conscience issue’ given that
different individuals from different background may have different
conceptions of ‘fairness,’ ‘rightness,’ ‘justice,’ with regard to the
same problem.
- On the basis of this, it can be argued that the theory could lead to
lawlessness if everybody is permitted to act according to what he or
she believes to be ‘right’ or ‘just’ to him or her as dictated by his or
her reason without any formal sanction.
 (d) Historical Law School

• Major proponent was Friedrich Carl Von

Savigny, a German aristocrat
• Theory argues that proper law must follow
the history and custom of a country. The
concept favours the evolution of law over a
period of time as opposed to the theory of
fairness, goodness and justice.
Criticism
The concept which argues that the law originates
from custom is based on the belief that rules of
customary law are rational or fair. But this does not
necessarily follow in practice as some customary rules
have been used to subject some class of people to
status of servitude, prejudice, inheritance issues and
labour matters.
In Uganda, customary rules are only applicable where
they are deemed to satisfy the three major tests: the
tests are that the rules must not be:
i) repugnant to natural justice, equity and good
conscience;
ii) contrary to public policy; and
iii) incompatible directly or by necessary implication
with any law for the time being in force.
 • Major proponents were Eugene Ehrlich
and Roscoe Pound
• Eugene Ehrlich argues that there is a
relationship between law and the
(e) Sociological societal conduct and that each has
Law School effect on the other.
• The societal conduct determines the
rule laid down in legal sources such as
statutes and decided cases. In essence,
societal value and conduct determines
the meaning of law and not the rules
laid down by the sovereign.
• Roscoe Pound argues that in satisfying human
wants, balancing is necessary among the competing
claims in such a way to avoid disruptions in
established institutions.
• His argument is based on competing claims in the
society given the limited resources available for use.
Criticisms
• The institutional emphasis here would be that of court system
and other arms of government. Pound attaches great weight on
value system.
• Pound’s theory of balancing competing claims failed to provide
the scientific approach in assessing this. His argument appears to
attach more weight to value, which would prevail as against what
is ‘right’ or ‘fair.’
➢ However, Pound’s analysis of balancing has received some
attention in the law courts as a means of resolving competing
claims.
 • Main proponent was Jeremy Bentham
(1748-1832).
• It argues that law should encourage
communal utility which in this context
is about people’s happiness.
(f) Utilitarian • The greatest good of the greater
School number of people should be the basis
of making the appropriate laws in the
society.
• Bentham identifies four major utilities
which include: security, equality,
liberty and abundance.
• To attain the utilitarian goal, the law must balance the
individual’s interest with that of the communal interests.
The freedom of individuals can be sacrificed or curtailed
to achieve the greater good for the society.

Criticisms:
• The main criticism of this school is that it does not
resolve the issue of balancing both individual and
communal interests. Neither does it state how best to
achieve this.
 (g) Functional School
• It emphasises on what a court will do with regard to a given
legal problem.
• Judges have taken up the role of making rules where
legislatures have not spoken or spoken vaguely. In other
words, it is immaterial the contents of statutory books and
decided cases, rather the decision of a court determines the
meaning of the law.
• In essence, one has to wait for a court decision on his or her
exact legal issue before one can understand the meaning of
law
Criticism:
• One recurring problem with this theory is the focus
that the meaning of law can only be sought through
the court decisions without the inputs from the
legislature and administrative agencies.
• This seems misleading in practice given that in
modern times, legislature remains the primary law
making institution although its power can be
delegated.
(h) The Realist School

• This theory focuses on the court system especially on trial

courts with the aim of reforming the judicial system.
• The realists are of the view that in discussing law and legal
rules, too much attention was often given to the bare legal
rules while such attention was not given to the human
elements in the application of the rules to particular cases.
Criticisms
• Judicial rule is not as objective as it would appear in the legal
books in view of the fact that judges and jury may be
influenced and affected by extra legal factors much more than
the evidence adduced in the trials and arguments of the
parties.
• In deciding a case, judges may be affected by their way of life,
educational background, what they like or dislike, colour, age.
• Scholars have argued that there is no such thing as a ‘Realist
School’ and that the so-called realists are ‘experimentalists’
and ‘constructive sceptics.’
 Conclusion
• The philosophers who advanced the aforementioned
theories came from a wide range of backgrounds and
perspectives, to sum up.
• Their divergent attitudes, origins, and experiences
influenced their fundamental concepts of law from
various angles. Thus, given the development that all
definitions are largely arbitrary and ad hoc.
• There is no single definition that is agreed upon by
everyone, and there is no single definition of law.
2. The Law Applicable in Uganda
(Historical Background)
 Historical Origin

• The law applicable in all the Courts of Justice in Uganda has, as its
original modern sources in the Uganda Order in Council, 1902
• Article 15(2) provided as follows
“subject to the other provisions of this Order, such civil and criminal
jurisdiction shall, so far as circumstances admit, be exercised in
conformity with Civil Procedure, Criminal Procedure and Penal Codes in
India in force at the date… same shall exercise in conformity with the
substances of the common law, the doctrines of equity and the statutes
of general application in force in England on the 11" day of August,
1902,…
Article 15(2) Cont…
…and with the powers vested in and according to in and according to the
procedure and practice observed by and before Courts of Justice and justices
of the Peace in England according to their respective jurisdiction and
authorities at that date, save in so far as the said Civil Procedure, Criminal
Procedure and Penal Codes of India and the said powers, procedure and
practice may at any time before the commencement of this Order have been,
or there after, amended or replaced by other provision in lieu therefore by or
t authority of any Order of His Majesty in Council of any Ordinance
ordinances passed in and for the Protection; provided always that the said
common law, doctrines of equity and statutes of general application shall be
in force in the Protectorate so far only as the Circumstances of the
Protectorate and its inhabitants, and the limits of His Majesty's jurisdiction
permit and subject to such qualifications as the circumstances render
necessary.”
Law Applicable at Independence
(a) The Constitution
- Although the Constitution, unlike ordinary laws, mainly
provides for the ways and means of administering the country,
it is part of the law applicable in the sense that any law
contrary to the Constitution, as the fundamental law, is null
and void.
(b) The Received Law
- These were the statutes of general application; the Indian
Civil and Criminal Procedure; and Penal Codes; substance of
common law and doctrines of equity in England, set as
existing laws on the reception date, i.e., 11th August 1902.
(See Uganda Motors Ltd v Wavah Holdings Ltd (1992) 2KLR8)
- Statutes of general application are no longer applicable in
Uganda
(c) Statutory law
• This is law made by Legislature and other authorities in
Uganda.
• This consisted of
- the Ordinances made by the Legislative Council and the
Local Legislative bodies e.g., the Buganda Lukiiko and
- the subsidiary legislation made by the Executive and local
authorities e.g., The Governor and local administration's
statutory instruments
(d) Case law
• This was in accordance with the doctrine of precedent,
which consisted of
- applicable decisions of the superior courts of England,
- the Privy Council,
- the East African Court of Appeal, and
- the High Court of Uganda
(e) Customary Law
• The customary law of the various communities in Uganda
was the principal body and practically the only law applied in
the Native Courts, African Courts, and Buganda Courts
• The customary law courts did not administer or enforce
customary law, as it were, freely. The restriction on their
authority was clearly spelt out under Section 9 of the African
Courts Ordinance.
• They could only enforce
“(a) the customary law prevailing in the area of jurisdiction of
the Court, so far as it was applicable and was not repugnant to
natural justice or morality and was in force in the district in
which the court has jurisdiction.”
Cust. Law cont…
• This provision enshrined what is known as the “repugnancy
clause principle” which subjected the administration and
enforcement of customary law to:
(i) “The natural justice or morality” of a foreign community –
English people as seen by the English judges and
administrators in Uganda; and
(ii) The received law, statutory law, common law and doctrines
of equity
• There was, however, only one clear saving legal provision.
- The proviso in Article 15 (2) of the Order in Council,
allowed the relevancy of “circumstances of the
Protectorate and its inhabitants.”

• This proviso, left open the individual foreign judge or

administrative officer before whom the matter involving
customary law came.
• The courts could only entertain cases in which, in the case of
civil proceedings, both parties were Africans and in the case
of Buganda Courts, the Governor, could empower the court
to entertain a case where a person was not an African but
having regard to his general mode of life and in the opinion
of the Courts Adviser (another non-Ugandan official) could
be amenable to the jurisdiction of such a court.