GIMPA LAW SCHOOL

JURISPRUDENCE

ASSIGNMENT 1

Is Law necessary?

NAME: FRANCIS TIMORE BOI

INDEX: 216003563
Introduction:

Different societies have different kinds of rules which do not constitute law in all respect. Such

rules which are not laws includes rules of good behaviour and ethics. Law is something more

than mere rules.

Definition of law

There are several definitions of the term law and the term law are used in different context.

John Austin and the legal positivist

The positivist theory is described as the Command Theory of Law. Under this theory, any

kind of content can be law. In other words, the validity of the law is synonymous with the

identification of the law maker. It is the habit of obedience owed to the lawmaker which

gives his laws validity. Failure to obey attracts sanctions, which therefore is an important part

of the definition of law. Sanction is defined as the punishment that attaches to a failure to obey

a law.

Austin (17901859), was one of the earlier scholars who sought to explain law in terms of

commands issued by a sovereign. His work, The Province of Jurisprudence Determined

(1832), attempts to clarify the distinction between law and morality

Austin1defined law as a command which is backed by threats of sanctions to be applied for

disobedience. According to Austin, these commands are set of rules which are laid down by a

superior, usually political in nature and anything which is not a command is not a truly law

(laws properly so called are commands and laws improperly so called are not laws).

1
J Austin, The Province of Jurisprudence Determine (1832) London, Weidenfeld & Nicholson (1968)
To him laws are considered without regard to their goodness or badness (The existence of law

is one thing; its merit or demerit is another). Austin categorised laws properly so called into

two: Laws set by God and laws set by men. Law was to be viewed as a species of command

issued by a person or body of persons to whom habitual obedience is rendered, that is, law set

by political superiors to political inferiors. A law, according to Austin, is a description of a

rule laid down for the guidance of an intelligent being by an intelligent being having power

over him. Austins view has been criticised by scholars on the basis that, most legal rules are

not in the form of commands. Again laws are more like standing orders which must be followed

until they are revoked. It is clear from this analysis of positive law that its greatest shortcoming

is that it both justifies and rationalises dictatorships. If any kind of content can be law and

citizens are required to obey the law, then any law, whether good or bad, must be obeyed and

disobedience of the law must attract sanctions. Legal positivists take this position because it is

their view that law must be described as it is. That enterprise of describing the law is different

from expressing an opinion about the law as it ought to be.

Oliver Holmes and the American Realism

The American Realist movement developed during the 1930s. The three jurists who

contributed to the foundations and growth of American realism, are Holmes (18411935),

Gray (18391915) and Cardozo (18701938). American legal defined law as what the court

says law is and that what is stated to be the law by parliament is not law. Holmes stated clearly

what he understood by the law. In his celebrated definition, he notes: The prophecies of

what the courts will do in fact, and nothing more pretentious, are what I mean by the law. To

the American realists, the court is at the centre of law making. When there is a dispute about

the law, resort we resort to the court and it is the decision of the court that becomes the law.

To them legislation is a source of law and not law by itself since the judge only uses legislation

to help him arrive at his decision. All statements about the law are simply a prediction of what
the court is likely to do in a given concrete case, hence the description of American realism as

a predictive theory of law.

Although Holmes draws attention to the importance of consequences of the courts

decisions, he is emphatic in his belief that the making of laws is the business, not of the

courts, but of the legislative bodies. It would be a mistake, however, to imagine that

Holmes rejected the need for legal theory.

Aristotel and Natural Law theorist

The natural law is promulgated by the very fact that God has instilled it into mans mind so

that it can be known naturally. The natural law is the product of Gods wisdom. Natural law,

theorist such as Aristotle, held the view that there is a natural law which everywhere possesses

the same authority and is no mere matter of opinion. Other such as Cicero and Aquinas, who

taught that Nature herself has placed in our ears a power of judging. It takes the very strong

position that a thing is not law unless it is moral; that for a thing to be law, it must have a moral

content. For natural law theorists, the ought which positive law theorists argue must be used

to measure law is an intrinsic part of the law itself; that there is an ought in the law. Natural

law theorists therefore do not accept that the law is one thing; its goodness or badness is

another thing. Bad law therefore is a contradiction because a thing is not law if it is bad.

Law is not law unless it is good. The fundamental problem with natural law theory however

is that in the absence of a universal agreement on morality or what is good, whose value or

morality is to be injected with the definition of law?. Natural law allows individuals to pick

and choose which laws to obey or disobey on the basis of ones morality, in the process

leading to anarchy.

Hans Kelsen and Pure Theory of Law

Hans Kelsen, a German legal philosopher, is the chief proponent of the Pure Theory2. He stated

that, law consisted of a set of norms or oughts. He called the basic norm the Grundnorm.

According to his explanation, every law (properly extracted and described as a norm) of a

legal order owes its validity to a higher norm in the legal order. This chain of validity continues

until we get to a norm that does not owe its validity to any other norm of the legal order. He

explains his ought propositions theory to mean that, law is made up of consequences which

ought to follow a given state of affairs. Thus the Pure Theory of Law insist that law and

morality should be kept separate.

Why Law Is Necessary In Society

The various theories discussed above clearly shows that, law is necessary for societal

development. Law is basically a means of social control, social order and social restraint. As

Aristotle3 puts it Man when perfected is the best of animals, but if he be isolated from law and

justice he is the worst of all. According to Plato, law is as a social control. Law maintains

public order by resolving disputes in a civilized manner. Law historically evolved as an

alternative to private feud and vengeance and as a supplement to the informal social processes

by which men and groups deal with disputes. It provides a rationalised and conclusive

settlement to disputes which is subject to public scrutiny. Law operates to regulate social life

by creating institutions which are responsible for defining what is wrong and good. For

example the creation of Human Rights institutions, the maintenance of a police force and other

enforcement agenda to detect and prosecute violations, and a system of courts to adjudicate

questions of criminal liability.

Law is again necessary because it facilitates co-operative action by recognising certain basic

interests in society and provides a framework of rules for giving effect to then. Example is

2
Quansah, E. K. (2011). The Ghana legal system.
3
Aristotle, A. S. P. (1916). translated by Benjamin Jowett.
property rights of individuals, a persons right to freedom from physical injury and the

formation of groups and associations such as companies.

Law also regulates the principal organs of power. It provides for succession to power and

defines who has the right to exercise what kind of power in society and any democratic society.

For example, the 1992 constitution of Ghana creates and regulates the three main organs of

government, which are the Executive, the legislation and the judiciary.

Law also allows government raises money to finance its spending by legislation and which

imposes a variety of taxes, including income tax, corporate tax, social security contributions

and VAT.

Law is also a tool for Development. Robert B Sideman4, recognised that law can function as

an aid to development. Tawia Modibo Ocran5 also argued that legislation is not only a tool of

social engineering but is the most effective aid to development in Africa. In his Law in Aid

of Development, Dr. Ocran argues that in a developmental setting, legislation is the most

crucial source of law. Basically, this is because legislation is the most innovative and perhaps

the fastest form of law-making and in that sense, the most dynamic. Ocran argues that in such

a system, law is used as one of the weapons of planning.

Conclusion

From the above theories, there are no specific acceptable definition of law. Each theorist

contributes in diverse ways to what law is. The positivist view of law is relevant in that, law

creates punishment for disobedience, which helps in social control. The naturalist view of law

4
Chambliss, William J., and Robert B. Seidman. Law, order, and power. Reading, MA: Addison-
Wesley, 1971.
5
Ocran, Tawia Modibo. "Law in aid of development." Issues in Legal Theory, Institution Building and
Economic Development in Africa (1978).
helps recognise institutions such as human rights. In conclusion, the theorist above contributes

to the necessity of law in society today. Law is thus relevant in society.

References

1. Curzon, P. (1998). Jurisprudence Lecture Notes. Routledge.

2. Lloyd, Dennis. "Introduction to jurisprudence." (1979).

3. Robert S. Summers: The Technique Element in Law, Reproduced in Essays in Honour

of Hans Kelsen, edited by the California Law Review with a Preface by Albert A

Ehrenzweig See also Summers: Law, Its Nature, Function and Limits (2nd edition, 1972)