In writing about the meaning of Law, it is imperative at the onset to state what the term law means. This is not an easy task. The complexity and diversity of human existence and society makes the task awesome. It is important however, that I cross that bridge otherwise the logic that I intend to identify will itself be lost. In other words, the
foundations upon which the proposition expounded in this book is based must itself be laid.
There is a common denominator in the social existence of all communities and societies. This common denominator is the idea of rules in one form or the other. They may be written or unwritten. In prehistoric communities and societies, there is evidence of some form or other or rules that governed these societies. In fact, it is impossible that people could or would have existed without any form of rules or regulation. These rules vary from community to community, they may be based on certain basic idea but they are also subject to the evolutionary process of society. Societal norms change from time to time and may be as a result of internal and external factor.
Legal philosophers define Law in different ways depending of course on their conceptual beliefs. Hobbes defines law as the commands of him or them that have coercive power. Salmond’s approach is descriptive in the sense that he looks at the actual laws and believes these are principles recognized and applied by people within society. Whilst Hobbes views laws from the standpoint of power and ascribed it to force by the use of commands and coercion, Salmond’s approach is basically descriptive. He says they are a body of principles, the focal point of the essence of the polemic in this book cannot readily be understood by a cursory or pedestrian approach to the definitions so far referred to. Law may itself be commands and or may consist of a body of principles. The issue really is what type of commands are they? What types of principles are contained therein? Do they represent the first principles of human co-existence; do they comply and conform with objective reasoning? Reasoning that is divorced and detached from subjective values, which are as a result of human and societal diversity. These are probing questions. Savigny makes the point that law is not the arbitrary will of the law giver but that it is evolutionary.
To the extent that law is regarded as being transient, evolutionary and subject to dynamism, the point made by Savigny is accurate. The point however needs further inquiry. The evolutionary process of life in itself is a natural condition of human existence. The substance of the evolutionary process of law must in my view approximate into achieving what I would term the Hegelian Model. The transient and evolutionary process of law in society must be towards achieving the ideal.
The facts represented or presented by ancient and modern history do not however reflect this point. One cannot look far to perhaps agree with Hobbes that at different periods in time, law has indeed taken the form and substance of being the arbitrary expression of the will of the lawgiver. From the Ancient Greeks through the Roman Empire and within Living Memory of Hitler’s Germany and Modern Third World Legal Political structures, there exist abundant examples of law being an expression of the will of the law giver.
The real and deep question however remain whether law should be the command of the ruler. Lord Hailsham rightly points out that the idea of law being the command of the ruler “leads straight to the concentration camp and to the gas chamber”. Legal Philosophers have theorized law in three distinct ways: Natural Law Theory, Legal Positivism, and Legal Realism.
The proponents of the Natural Law Theory view law as gaining legitimacy from God’s commands or from human reason. The conceptual base or belief in this theory depends on the philosophical standpoint or starting point upon which the concept is being theorized. Those who approach it from a religious point of view look to the commands of God as a spring board of and for natural law. Sir Henry Slesser writing on Natural Law said that it is essential for Christians to recognize the claims of Natural Law to regulate the behavior of all humanity according to the virtue of justice is made abundantly clear in the declaration of Pope Pius XII in the Summi Pontificatus where he says that “that natural law reposes as upon foundation, on the action of God, the Almighty Creator and Father of us all, the Supreme Law Giver.” The religious connection with natural law is made strongly when Sir Henry Slesser identifies the alarm raised by other writers at the disconnection between law and God. He refers to the point made by Dr. Wu that natural law had gone underground and that Richard O’Sullivan in the journal of Current Legal Problems in 1938 said that “in modern legislation as in modern jurisprudence there is no God”.
The other conceptual approach to the Natural Law theory is one that is based on human reason. Laws are regarded as approximating ideas of good conduct, which is a constant denominator in all human relationships. In effect, the idea of behaving properly is unrelated to religious beliefs even though the essence of all religious beliefs is the expression of good conduct. It is important however that the point is made that human beings accept that is it right that they behave properly. The fact remains that it is inherent in the human make-up and condition that they know what to do. It is a categorical imperative. Lord Hailsham makes the point rather powerfully when he says that “there is a mortality inherent in the human condition which seeks to articulate itself into general guidelines”. When he refers to the words written by his grandfather that, “Truth is forever better than falsehood, justice than injustice, beauty than ugliness, kindness than unkindness”. It is absolutely clear that these fifteen words are based on reason. Reason divorced from any kind of set of beliefs, but not unrelated to set beliefs, which advocate positivity in the human condition.
Proponents of positivist theory unlike Austin and Bentham regard laws as human convention whose authority derives or stems from no other source than that of the legislating body, which dictate it. This is almost a pragmatic approach to what law is. For Kelsen , ‘the pure theory of law is a theory of positive law. As a theory, it is exclusively concerned with the accurate definition of its subject matter. It endeavours to answer the question “what is the law” but not the question “what it ought to be”. It is a science and not a politics of law’. Kelsen says his approach is an attempt to free the science of law from all foreign elements. It is important according to Kelsen ‘to liberate law from that association which has traditionally been made for its association with morals’.
I am respectfully in complete agreement with Kelsen that ‘law seems to have a thoroughly natural existence’. In fact I would go further to state that the idea of law in itself is natural. The word seems appear not to drive home the point. It is in every form of human existence as constant as the northern star. The point of dissent however is that an inquiry on what is law must necessarily include what law ought to be. The essence of the polemic in this book is not served by simply identifying what law is by the same analogy as i.e. what is an object. The proposition is that what law ought to be is related to what law is and that if what it is does not exemplify what it ought to be, then the society in which it is operated is clearly on the wrong track. When Kelsen states that the essence of the pure theory of law is concerned with the accurate definition of its subject matter and strictly seeks to empirically determine what law is without reference to what it ought to be, he fails to appreciate that the connection between values and law is inestricable.
The positivists approach to law in limiting it by reference to its form fails to recognize the nexus between the hard cold prints of the rules and the people that they are supposed to serve. Professor Hart , one of the most Profound Writers on positivism believes that within the form of law lies a rule of recognition and he believes this gives the law constitutional validity. Whilst this approach recognizes the nexus between the law and the people, it does not prevent the abuses that may and can result from the practical aspects of positivist theory Totalitarian and Facist regimes have in recent history subscribed to this theory. The facists tried at the Nuremberg War Trials said they were obeying the law of the land when they carried out the most heinous crimes of the first half of the 20th century. Sir Henry Slesser writing in 1962 referred to the fact that an English Attorney General had said that “parliament is sovereign, and therefore it makes any laws. It could ordain that all blue-eyed babies be destroyed at birth”. The Learned Justice deprecated this positivist line of thought and even though Professor Dicey had argued that the point made by the Attorney General was practically impossible. Sir Henry Slesser referred to the fact that ‘an Act of Parliament was considered adequate to exile the Catholic Church from England in the times of Henry VIII and Elizabeth I and that a Minister was given powers in recent times to detain a person without trial’.
It is therefore clear that the substantive element of law possess the quality that represents the positive values that exemplify human co-existence at its best. This can only mean that the laws must reflect nature in a positive light. Although Lord Hailsham argues that it is not difficult for people to refer to negative aspects of values as natural, it is my view however that when those negative values represent the laws of society, then there is no equilibrium between the rules, the rulers and the governed. When there is such imbalance, there is tension and friction. The stability of the polity in Western Europe as opposed to Eastern Europe in the cold war era in my view was a result of a fundamental difference in the approach to the meaning and function of law. Whereas Western Europe had continued to attain the essence of the rule of law, Eastern Europe had adopted a totalitarian style of government which created friction and tension.
I respectfully agree with Sir Henry Slesser when he in agreement with Pope Pius XII states that ‘the nineteenth century is the one largely responsible for juridical positivism. The graphic effect of juridical positivism is clearly illustrated by the Facist regimes of Germany, and the Totalitarian Soviet Union.
Legal Realists see as a form of social activity with its attendant punishments and persuasions. According to Roger Scrutton , this theory looks at the basic fact of law without reference to its prescriptive nature. Law is the prophecy of what Court will do. The proponents of the realist school of thought in their approach to the question of the meaning of law have what can be termed a very matter of fact approach. According to Thomas Martens in his dictionary of philosophy, the approach of the realist is basically “an attitude of hardheadedness, not given to speculation and illusion but keeping a firm grasp of what is actually the case, in shot, a realistic attitude”. He also defines their approach as “a theory that entities of a certain category exist independently of what we believe or feel”.
The great American Jurist Oliver Wendell Holmes approach to the question what is law in his paper on this subject can be termed a matter of fact realism. In his remarks in the Path of Law published in the 1897 Harvard Law Review, he questioned the hitherto approach of Legal Philosophy of relating the meaning of the question what is law with that of what law ought to be. According to Holmes, the study of law should not be shrouded in “mystery” but a “well known profession”. The Learned Jurist opined that the reasons why we study law “is prediction, the prediction of incidence of the public force through the instrumentality of the Courts”. According to Robert P. George , Holmes intended to be provocative when he stated in the Path of Law that “A legal duty so called is nothing but a prediction that is a man does or omits certain things he will be made to suffer in this or that way by judgment of the Court… The prophesies of what the Courts will do in fact, and nothing more pretentious are what I mean by the law… the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it and nothing else”. George identifies what he terms further provocation in Holmes’ approach when the Learned jurist states that “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether and other words adopted which should convey legal ideas uncoloured by anything outside the law”
Holmes said
If you want to know the law and nothing else, you must look at it as a bad man, who comes only for the material consequences which legal knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it in the vulgar sanctions of conscience.
Holmes’ view is that the question what is law has to be answered with regard to the view of members of the society wanting to know what the law is on particular matters that affect them. They are according to him interested to know this because it affects them. The study of law is undertaken in order to tell people what law is. What can be termed a straightforward business approach. The tension in the analysis of Holmes can be seen clearly when he states that
The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.
Oliver Wendell Holmes is a Jurist for whom nothing but unqualified respect is due. It is with due deference that I venture to criticise his approach to the meaning of law. I think the question really is whether legal philosophy can runaway from ethical and moral connection in the inquiry on the meaning of law. It is my view that in spite of the logic of the argument presented by the proponents of realism, there cannot be a disconnection between morals and ethics in this discourse. The anxiety of the “bad man” or of anyone in society wanting to know what the law is as a matter of fact is not what in my view legal philosophy should concern itself with. Law is not just a commodity that can be bought off the shelves of a supermarket. The defacto existence and meaning of legal rules cannot be reduced to the broader meaning of law. Such an approach heralds the end of legal philosophy. It fails to appreciate the essence of human societal development. Why bother about what law ought to be if what it is, is all we need to look at in the inquiry of the subject. Why in the continuous search for the betterment of the human race do successive responsible government seek to propagate the ideals of good government and governance in practice. The history of the movement from autocratic to representative governments shows that societies continue to strive to actualize the ideal.
In my view the approach of the Realists is quite alarming. It reduces the meaning of Law to little more than an observational object. The Scandanavian Realists believe that “Law can be explained only in terms of observable facts and the study of such facts is the science of law”. It is their view that “the science of law is a true science like any other concerned with facts and events in the realm of causality”. Olivercrona’s view is that “law exists only in the sense that words are to be found written on pieces of paper or intermittently stored or present in human minds or memorials”. Ross emphasizes “the normative character of legal propositions but prefers the term directives or quasi commands”. He points out that “a distinction must be drawn between kinds of legal knowledge and law actually in force”.
The approach of the Realists is with respect too narrow and too simple a way to look at a concept which is the basic bond of cohesiveness of human existence. Law is indeed more than just the decisions and prophecies of courts. Law is an indispensable asset of human society and the quality of it, which is in its logic, actualizes the objective values of human society. There appears to be a connection in the approach of the proponents of the Realist theory and that of the positivists. They both look at the law as they are, rather than what they ought to be. The point of divergence however is in my view what Professor Hart refers to as the rule of recognition principle. Therefore assuming positivists principles of interpretation, there has to be recognition of these laws by the governed or the people. This approach by Hart is very similar to the bond of reciprocity principle propounded by Professor Lon Fuller. The difference however is that the reciprocity principle is a view based on values which must de facto and de jure be based on the fundamental principles of objective reason.
Law is clearly a set or sets of rules and regulations either formal or informal that members of society must as of necessity live by. It is a sine a qua non in the fundamental make up of society. Any study of community or society at any period of time will and does show that these societies whether primitive or modern, simple or complex have rules which they live by. St Augustine said that “states without justice are but robber bands enlarged”. One can borrow that analogy in describing states, society or communities without Law. The non-existence of this fundamental requirement for the make up of society is a recipe for chaos and anarchy. I am inclined to David Hume’s opinion that “no association of human individuals could subsist without Justice”. With regard to the point been made here, for the term Justice we will have to substitute Law. I find exceptional authority in the issue under discussion by reference to the philosopher Aristotle . In his view “a man can only be himself in society and society cannot exist without rules and obligations”. In effect, the question posed by Aquinas that “does not experience show that some sort of Law is a condition of all human society” can in my view be answered in the affirmative.
It is right therefore that whichever conceptual view taken, that is to say no matter the philosophical base upon which one approaches the inquiry of the meaning of Law, what is clear is that it is a functional and imperative good of and for all societies. The point is made powerfully by Aquinas when he says that “It is nothing else than a natural ordering of things which concern the common good promulgated by whomever is changed with the care of the community” and perhaps put more powerfully by Lord Hailsham when he says that “to me Law is the first of the social services indeed some form of Law is essential to any form of civilized society”.
It is difficult to define what Law is without reference to what it ought to be. A descriptive approach will not explain what I seek to achieve in theorizing on the logic of the rule of law. What Law is cannot be explained or exposed in the same manner as what is a car or what is an object. This cold detached approach of Kelsenian jurisprudence regard Law as just another object. Therefore what is a car has got nothing to do with what is a good car. My view is that the meaning of Law must as of necessity include what is good Law. It is a correlative. If what it ought to be is missing in the definition of what it is, then that particular Law would achieve a very low gradient of Legitimacy. Aquinas is right in saying that “the rule and measure of human action is reason which directs action to its appropriate end”. Therefore Laws must be based on reason and in my view reason here means positive reason based on objective values.
The history of human co-existence reflects a constant search for perfection. The profound Dialectic Formula of Hegel can be used to explain the constant and continued search for the appropriate definition of Law. There is no closure in this search because of the dynamism of human existence. In effect, it is right to say that the idea of Law is constant in all forms of human society but the idea of what Law ought to be is subject to continued debate because of the fundamental differences inherent in societal customs and the developments which in itself leads to different philosophical viewpoints. What is however clear in this discourse is that no matter where we come from, “truth is forever better than falsehood, Justice than Injustice, beauty than ugliness, kindness than unkindness”. It is on this simple philosophy that the human society thrives on.
Disclaimer: The views represented in this article are the views of the author and does not necessarily reflect the view of the law firm.