NOTES ON INTRODUCTION JURISPRUDENCE

INTRODUCTION

The first question that naturally comes into the mind of a student studying jurisprudence for the first time would most likely be what is Jurisprudence? What I will attempt here is an overview of Jurisprudence. Jurisprudence consists of the study of the nature of law and its related ideas. It seeks to provide answers to questions such as What is definition? What is rule? What is law? What is morality? There are also interesting question of political morality which impinge on your life. Examples are: Should the law enforce conventional morality: what is the relationship between freedom and equality? There are also question of sociology and history. The questions are: What generally shaped the law in modern societies? What were the main claims of the feminists? What major trends influenced law schools in the United States in the twentieth century? What are the effects of law? What events can be shaped by the adoption of laws? Is law of any sort naturally repressive – or liberating?


Outstanding thinkers in jurisprudence include:

a) Austin and Bentham (founders of legal education at the University of London): both thought that law was about power
b) Hart  and Kelsen: thought that the power of law is imbibed with authority (non moral authority)’
c) Fuller and Dworkin: thought that law should be imbibed with moral authority.
d) Dworkin thought that judges only create law that is largely coherent with existing legal systems while Austin think they were deputy legislators
e) Marxists think the law only serves the interests of the powerful and the rich
f) The Critical Legal Scholars think that law schools provide a veneer of respectability over chaos and conflict
g) Some jurists believe that the courts enforce moral rights; others such as Bentham, think that this idea is ‘nonsense upon stilts

Kelsen, the distinguished constitutional lawyer and the 1000 pages of 1965 decision of the Rhodesian General Division court of Maidsimbamuto v Lardner-Burke portray a formidable line-up of jurists whose ideas were marshaled for and against the Rhodesian government’s case.

METHODOLOGY, ANALYSIS, THEORY AND THE IDEA OF DEFINITION

There are descriptive (describe things as they are), normative (how people ought to or should behave) theories.  Two important things to note (1) A theory can be descriptive and normative where a theory say “this is what the law is like” and “this is how we ought to regard law”.  (2) The subject matter of a descriptive theory can be normative e.g. we might describe law of English by saying “The law is (description) that people ought not (normativity) to obtain property by deception according to s.15 of the Theft Act 1968. Hart, Dworkin, Raz and Finnis are very sensitive to these differences others are not.

THEORY AND EVALUATION

Evaluation is important in theorizing. Example is the case of Trichologist, seller of hairpieces and baldness cure, and his son who is a skinhead. The father sees ability to grow hair as style thing, while the son sees it otherwise.  Some theorists like Hart believe there is a difference between characteristics of theory and its application while others like Raz take the view that the law is a concept that can be characterized that is independent of adopting any evaluative point of view.

HART’S METHODOLOGY

Hart spend much time debating the merit of choosing a ‘wide conception of law’ over a narrow conception of law’ this latter being natural law conception.  Hart also said that plainly we cannot grapple adequately with this issue if we see it as one concerning the proprieties of linguistic usage.  Finally Hart says the main reason for identifying law independently of morality – his justification for legal positivism – is to preserve individual conscience from the demand of the state. Hart also said that it is a mistake to think that all questions can be solved with reference to the way we actually speak.

THE ‘INTERPRETIVE’ APPROACH

Concepts are accepted sets of ideas for example people uncontroversially accepted law has to do with rules, sanctions, courts and the likes.  Conception is a way at looking at concept for example Fuller’s conception of law is different from say Webber’s conception.  As a result of the dissatisfaction with the rigidity of the distinction between descriptive and normative developed methodology of ‘interpretive concept’ i.e. making the best of something that it can be and this idea is to be applied to law.  A student of jurisprudence should be able to say what he thinks of a theory.

IMPERATIVE OR COMMAND THEORIES OF LAW

Imperative or command theory of law is the earliest modern legal theory in England.  The theory is based on the conception of sovereignty derived from long traditions of political thought to which Thomas Hobbes as chief contributor '

THE BIRTH AND DEVELOPMENT OF SECULAR OR ‘POSITIVE’ THEORIES OF LAW: THE CASE OF THOMAS HOBBES

The work of Thomas Hobbes (1588-1679) constitutes the founding moment for the stream of political philosophy and political orientation we call liberalism. His work provides a transmission from the medieval intellectual synthesis wherein God was seen as the creator of life and God’s presence was seen in the organization of life flow to a more secular foundation for government.  His work Leviathan espoused the theory of legitimacy, or argument for we should give it obedience.  This theory was founded on the narrative or story of mankind’s nature that humans are supposed to see themselves as actors in the narrative and be led to agree that we would as natural creatures accept the need for a strong government as a social contract.  He presented self-assertion as a new social ethics.  The world thus becomes a site for individuals to follow their desires to plan their personal and social projects.  He gives a narrative of the ‘natural condition of mankind’ in way that any government would be better than the solitary, poor, nasty, brutal and short’ life he gave pre-social contract man.  Because of this, Hobbes was often regarded as the father of totalitarian government.  Feminists did not agree with his idea of solitary men and pointed out that humans do not begin as individuals - they began life as dependent babies and are made into individuals by socialization.

Hobbes target audience was member of the exiled Royal English Court in France.  It was during the period where religious instead of being a binding force had become a major source of conflict.  The thirty years of bitterest conflict Europe had seen then had wasted much of central Europe.  The Christian Spain finally defeated the last of Islamic Ottoman Empire.  That was also the time of great voyage of European discovery. Ship and military power of Europe allowed it to overwhelm cultures and peoples that could not withstand the onslaught, creating new social and territorial relation in Europe.  The treaty of Westphalia usually refer to as beginning the era of the nation state, had been
concluded in 1648

LEVIATHAN EXTRACT – THE INTRODUCTION

Nature (the art whereby God hath made and governs the world) is by the Art of man, as in many other things so it is also imitated that it can make an Artificial Animal. Life is a motion of limbs beginning with some part within. The three issues to describe the nature of the artificial man are '

(1) The matter thereof, and the Artificer, both which is man:   There is a saying that wisdom is acquired not by reading of books but of men.  Another saying is that ‘Nosce te ipsum, read thyself’
(2) Secondly, how and by what means covenants it is made; what are the right and just power of authority of a sovereign and what it is that preserve and dissolve
(3) What is a Christian Common-wealth
(4) What is the kingdom of darkness

OF THE NATURAL CONDITION OF MANKIND AS CONCERNING THEIR FELICITY

Nature has made men equal, though some may be stronger or quicker but all things taken together no man are considerable stronger than another.  As for the weakness of strength, the weakest has enough strength to kill the strongest either by secret machination or by confederacy of others in the same danger with him.  If one plants, sows, build or possess a convenient others may probably be expected to come prepared with forces to dispossess him.  Men have no pleasure in keeping company, where there is no power able to overawe them all.  In the nature of man, we find three principal cause of quarrel first: competition, secondly Diffidence, thirdly Glory.  The first makes man to invade for gain, the second for safety and the third for reputation.  The first uses Violence to make themselves masters of other men’s person, wives, children and chattel, the second to defend them and the third for trifles as a ward a smile difference opinion.  During the time when live without a common power to keep them all in awe, they are in condition which is called war and such war is of everyman against everyman.  There is no place for industry because the fruit is uncertain, no navigation, no knowledge of the face of earth, no art no commodity exchange, no letter, no society and which is worst of all, continual fear and danger of violent death; and the life of man solitary, poor, nasty, brutish and short.  When man embarks on journey, he arms himself, going to sleep, he locks his door, and even in his house he locks his chest.  The action of man is not sin till there is a law to forbid them nor can any law be made till they have agreed upon the person that shall make it.  In all time kings, person of sovereign authority because of their independence are continual jealousy and posture of gladiators, their weapons pointing and their gaze on other.  In this period nothing can be unjust. The motion of right and wrong, justice and injustice have there no place.

The key figure of sovereign who down the condition of human flourishing or individual pursuit of desire by a set of rules command which were laws.  Hobbes narrative of human condition and the need for man to set up common authority leads to the social contract which authorize sovereign.  Hobbes set up a sovereign, a mortal god out of our common agreeing to a social contract.

HOBBES: CONTEXT AND INFLUENCE

In Hobbes we have many of the basic characteristics of legal positivism.  Law is something posited by man and its does not flow from God’s creation. Therefore relationship between legal enactment and morality is not straightforward. Decisions needs not be moral.'

UNDERSTANDING HART’S ANALYSIS OF THE HUMAN CONDITION

In Plato’s Protagoras Plato include reference to a god (Zeus and a lesser god Hermes).  Men were devoured by wild beasts, they sought to protect themselves by coming together and building fortified cities, but when they began to gather in communities they could not help but injuring one another in their ignorance of the art of co-operative living. Zeus fearing their annihilation asked Hermes to impact to men quality of respect and sense of justice. 

Harts follows Protagoras and wrote that our basic concern is with social arrangement for continued existence not with those of suicidal club.  The interesting point are: (1) Hart brackets law with morality (2) Hart calls natural law the common content both of various positive moralities and various systems of law (3) Hart tell us there is common intention.

Hart’s minimum content of natural law are (1) Human vulnerability (man is capable of inflicting serious bodily injury and death (2) Limited resources (basis necessities of life are always in short supply makes inevitable some form of property institution together with rules for governing exchange (3) appropriate equality (every man is equal and make acceptable common system of mutual forbearance and compromises (4) Limited altruism (men are not evil, but neither are they angels) explains the necessity of restraints and at the same time their possibility) (5) Limited understanding and strength of will makes it is necessary to apply sanctions, including informal sanctions of moral disapproval an artificial incentive and conformity.

Minimum rules are restricted to rules governing matters of life and death, injury, property and contracts.  The rules are prohibitive and there is no positive inducement to act in virtuous way but only prohibition against wrongdoings. Furthermore, only primary rules are discussed and special circumstances, in which it may be permissible to destroy life, inflict bodily harm, deprive possession, break promise and things that are sometimes held to be morally justifiable.   The reasons for limitation are (1) only basic aim (survival) is considered so moral rules not connected with survival are not considered.  There are no sexual restraints in Harts list.  Hart considered promiscuous killing more serious than sexual promiscuity.

JEREMY BENTHAM

If Hobbes had argued the idea of legislative rationality – government using law to organize nature of society and structure of everyday interaction, Bentham assumed that this was possible and that it was the responsibility and duty of government.  Bentham was the son of a London attorney.  Bentham was reformer and differentiated the question of what the law was from what the law ‘ought to be’.  Bentham was a proponent of a total institution called the panoptical.  This was to be an institution of perfect control and visibility.  The inmate was to be under the constant gaze of the overseer.  To many this was the perfect emblem of the dangers of the modernists’ obsession with legislating, defining, structuring, segregating, classifying and recording.  That the modern city of reason would end in a living prison would certainly not have been Bentham desire, but the reality of the holocaust and the great imprisonment of the Soviet Union etc would testify to the dark side of the attempt to define chaos out of social life and define.

JOHN AUSTIN

John Austin study law in 1812.  He was appointed professor of jurisprudence when legal education was almost entirely practical.  Austin tried to put positive laws into a political framework. His first public lecture was in 1828, but he failed to attract students and resigned his chair in 1932. He was appointed into Criminal Law Commission in 1833 and resigned in frustration for failing to find support for his opinions. Recognition came for Austin’s work after his death, when his wife edited his work and publish them.

Lecture 1: The matter of jurisprudence to positive law, simply and strictly so called: or law set by political superiors to political inferiors. A law is said to be a rule laid down for the guidance of an intelligent being by an intelligent being having power over them. The whole or a portion of laws set by God to men is style law of nature.  Of the laws or rules set by men to men, some are established by political superiors, sovereign or subject by persona exercising supreme and subordinate government.

The aggregate of rules established by political superiors is frequently styled positive law, or law existing by position.  A set of rules enforced by opinions, sentiments held or felt by indeterminate bodies of men are law of honour or fashion.   There are numerous applications of the term law, which rest upon a slender analogy and are merely metaphorical or figurative.  Such is when we talk of laws observed by lower animals, laws regulating growth, decay of vegetable, movement of inanimate bodies or mass.  The essential of law rules are (1) Every law or rather laws or rules properly so called are commands. If you express or intimate a wish and you will visit me if I comply not then intimation of your wish is a command. If you cannot and will not harm me then it is not a command.  Being bound or under a duty to obey command makes the wish a law.  Command and duty are correlative terms or wherever a duty lies, a command has been signified and where a command is signified, a duty is imposed.  The evil which will be incurred in case a command is broken is called sanction or an enforcement or obedience.  A law may therefore be defined as a command which obliges a person or persons.  Law and other commands are said to proceed from a superior and oblige and inferior.  Superiority is often synonymous with precedence or excellence e.g. superior in rank, wealth, virtue. It could also signifies might, the power of affecting other with evil or pain or forcing them through fear or that evil to fashion their conducts to one wishes. God is emphatically superior to man; the sovereign one is superior to his subject.  Superior is reciprocal e.g. the monarch is superior to the governed, but the governed collectively or in mass are also superior to the monarch through active resistance. A member of sovereign judiciary is superior to the judge being bound by the law from that body; citizen is superior to the judge, the judge being the minister of law armed with the power of enforcement.  Customary laws must be excepted from the proposition that laws are species of command because they are creation of sovereign state or state may abolish them at pleasure.  They existed as positive law by spontaneous adoption by the political superior. Customs is transmitted into positive law once it is established by the judge, promulgated into statutes.  The only laws which are not imperative and which belong to the subject matter of jurisprudence are the following (1) declaratory laws or laws explaining the import of existing positive law 2) laws abrogating or repealing existing positive laws 3) imperfect laws or laws of imperfect obligation

Lecture V: Positive laws or law so called are established directly by Monarch, sovereign bodies as political superiors.  Every law is a direct or circuitous command of a Monarch, sovereign bodies as political superiors.  There are also human laws styled positive moralities or positive moral rules.  Of positive moral rules, some are laws proper, others are laws improper.  The moral values which are laws are imperative laws or rules set by to men, they are not set by men as political superiors nor are they set by men as private person in pursuit of legal rights.  They are not clothed with legal sanctions nor do they oblige.  The positive moral rules which are laws improperly are laws set or imposed by general opinion of inhabitant of a town or providence.  Some of these are styled rules of honour or law of honour or law that regards conduct of sovereign state caller law of nations or international law.  These so called are sentiments in the absence of sanction.  The distinction are (1) If a body of persons be determinate all persons who compose it are determined and assignable or every person who belongs to it may be indicated. Such bodies include (1) the body is composed of persons determined specifically or individually or determined by character (2) they may answer many generic description, every member is a member of the generic body.  They are distinguished by (1) they comprise of the person who belong to that class (2) every memo is determined by specific appropriate character.  Indeterminate body is not determined, some belong, and some do not.

Lecture VI: Characters which distinguish positive law are (1) Every positive law or every law simply called is set by a sovereign person, or body of sovereign person.  (2) the bulk of given society are in habit of obedience or submission to a determinate and common superior. (2) certain individual might not be in the habit of obedience but certain individual or body renders habitual obedience.  Other members are dependent on the superior.  An independent and sovereign nation is a society consisting of sovereign and subject as opposed to political society which is merely subordinates. The generality of a given society must be in the habit of obedience to a determinate and common superior.  The existence of a law is only one thing, its merit is another thing. If we dislike a law it is still a law.  William Blackstone laws of Gods are superior to all other law and no human laws should suffer to contract them.  But to say human laws which conflict with divine law are not binding is stark nonsense because the most pernicious laws which are most opposed to the will of God have been and are continually enforced as law by judicial tribunals.  Austin distinguished his general or analytical jurisprudence from criticism of legal institutions which he called science of legislation.

AUSTIN AND UTILITARIANISM

Austin declared himself to be a disciple of Jeremy Bentham and utilitarianism is a continuing clear theme in the work for which he is well known.  Austin interpreted utilitarianism so that Divine will is equated with utilitarianism principle: “utility is the index to the law of God.  To make a promise which general utility condemns is an offence against God.  Most contemporaries saw Austin as utilitarian and the young Austin shared many of the ideas of Benthanite philosophical radicals, namely notions of progress, rule through knowledge, political economy, as well as accepting the ideas of Thomas Malthus. Austin made a lasting impact for at least two reasons (1) Analytical jurisprudence – he argued for analytical analysis of law as opposed to approaches grounded in history or sociology.  AJ emphasizes analysis of key concepts, including law, legal right, legal duty and legal validity and it thus became the dominant approach in analyzing the nature of law. It is a mistake to reduce AJ into ‘legal formalism – what you can formally reduce law into’ and see AJ as opposing a critical and reform-minded effort to understand law and its social, political economic effect.  This approach is loosely grouped under the title ‘legal realism’ that could understood in terms of practical effects of law.  Austin saw AJ as attaining clarity as to the categories and concept of law, as for the morality of law, its effectiveness, its use and abuse or its location in historical development.

LEGAL POSITIVISM

Austin tied is analytical jurisprudence to a view of law known as ‘legal positivism’.  He belief law should be seen as something posited by human judgment or processes.  Most prior work has treated jurisprudence as though it were merely a branch of moral theory or political theory.  For Austin law should be object of scientific study as law was simply law and its morality another issue.  Legal positivism asserts that it is possible and valuable to have a morally neutral descriptive theory of law.  The common theme to Hobbes , Bentham and Austin is demand for clarity of conception and separation of different discursive realms.  
Common law tradition and natural theories gave image of law as something that was not at government’s behest to use as the government desired. By contrast Hobbes, Bentham and Austin identify (positive) law as creation of government (the sovereign) as part of the government’s instrument to achieve (rational, coherent and defendable) rule.
Austin talked about command and rules and positive laws laid down by a sovereign or its agent and succeeded in delimiting law and legal rules from religion, morality, convention and custom. Some customary laws, public international law and part of constitutional laws were excluded unless those adopted by sovereign state.

CRITICISMS OF AUSTIN

Some of the critics of Austin often claim that in many societies, it is hard to identify a ‘sovereign’ in Austin’s sense of word. Austin dismissed this that sovereign is a matter of factual analysis.  It is however to describe British sovereign awkwardly as combination of king, the House of Lords and all the electors of Commons. Some criticism of command model seems to fit some aspects of law poorly (rules which grant power to officials and private citizens of latter, the rules for making wills, trusts ad contracts are example) while excluding other matters (e.g. international law).  It was also consider distorting to reduce all laws to one type as the private laws (wills, contracts, etc) are bout granting power and autonomy, not punishing wrongdoing. A powerful criticism lays solely in terms of power fails to distinguish the rule of terror from forms of government to the extent that they are accepted as legitimate by their citizen.  Austin laid out the structure for modern legal positivism and when Hart revived it in 1958 and 1994 he built of Austin’s theory.

A CONTEMPORARY VIEW

Austin’s work was highly fashionable in the late 19th century.  Today, Austin can be seen as all too trusting of centralized power and his writing a strange mixture of analyticism and realism.  When circumstances seem to warrant a more critical, skeptical or cynical approach to law and government and government, Austin’s equation of law and force will be attractive.  Yntema stated in 1928 that ‘the idea of a government of law and not of men is a dream.  In our contemporary times, as we see failed states of Iraq and various other nations, the message of Hobbes that security comes before all else is treated as a common-place.  Whether law could be used as a rational instrument of government is another matter.