LEGAL METHOD I (FACULTY OF LAW EXAM PAST QUESTION)

Write short notes on any two of the following:

1.       Natural law school

2.       Analytical Positivism

3.       Sociological school

4.       Historical school

TIPS ON ANSWERING THIS QUESTION

1.       Who are the proponents of the schools of thought?

2.       What does each school of thought propose?

3.       What are the criticism of each school of thought?

NATURAL LAW SCHOOL

The chief proponents of this school of thought are; Thomas Acquinas, Hugo Grotious, Zeno, Plato, Aristotle, and Cicero.

According to the proponents of this school, law is what is ‘fair’, ‘just’ and ‘right’. In the words of Thomas Acquinas (quoted in Omeregbe’s : History of Western Philosophy) ‘the validity of any law depends on its justice’. They maintained that there is an objective principle in man that tells him what is good and what is evil. They however disagreed on what the objective principle is, some referred to it as the conscience. Okunaga said: (quoted in Introduction to Legal Method, Ed. by Sanni) ‘if ten men from different countries are put in separate rooms and each of them is asked in the language that he understands whether it is good to steal, majority will say no’. Law must therefore conform with the moral values of the society. It should seek to encourage good conduct and punish evil conduct.

This school of thought has led to the protection of human right in the constitutions of the world.

CRITICISM:

1.       Natural law school is based on ideal situations; it emphasizes what ought to be as against what is. The problem is the ideal situations may sometimes not be feasible.

2.       Natural law school has been termed a harlot since it can be used to justify all forms of human conducts, ranging from slavery, to colonialism, to dictatorship. Anyone could claim to be acting according to his conscience when is perpetrating evil.

3.       There is a problem of multiplicity of conscience. That is, what appears good to one person may appear bad to another. For instance, in some countries in Europe gay laws have been passed, the argument supporting this conduct is premised on the fact the marriage of two consenting adults should not be termed illegal. However, in most African countries, such conduct is forbidden. The question is: is gay marriage good or bad? The argument is endless.

4.       Natural law school philosophers looked at ‘right reasoning’ as a judge of what the right form of law should be. The question therefore is what is ‘right reason’, ‘fair’, ‘just’, or ‘right’? these are mere ideas of the mind not empirically verifiable. Hence, the interpretation of these concept is left to the powerful in the society who can manipulate the justice system.

5.       Not all laws have moral implications like the banning of hooting of cars in Lagos State.

ANALYTICAL POSITIVISM

The chief proponents of this school of thought are John Austin and Prof. Hans Kelson.

The word positive is derived from the term ‘posit’ which means ‘to put down’. Therefore, positive law is any law put down by the ruler or any body authorized to do so (i.e the legislature).

There are two theories under the positivist school, these are:

1.       COMMAND THEORY:

      This theory is propounded by John Austin; he describes law as a command laid down by a sovereign being for the governance of inferior beings. The inferior beings should be in the habit of obedience while the superior beings should be in the habit of being obeyed and he may use sanction to compel obedience. The superior being may be a person or a group of persons, he is referred to as the ‘uncommanded commander’. That is, he makes the law but is himself above the law’. His powers are ‘unlimited’ and ‘illimitable’.

Thomas Hobbes supports the command theory of law, he observes that for peace and orderliness in a society, the citizens must surrender their rights to a sovereign being. He however called the sovereign being ‘the leviathan’.

CRITICISM:

a.       The sovereign is not himself subject to the laws of the land. This is contrary to the principle of rule of law.

b.       It encourages dictatorship and totalitarian forms of government.

c.       It focuses on the validity of the law rather than its content. That, any rule is law if it emanates from the sovereign regardless of its moral contents.

d.       It emphasizes societal orderliness over individual rights and freedom. That is, the individual may only enjoy such rights as the sovereign permits. This negates the principle that rights are natural and inalienable.

e.       Also, there is no such ruler as an ‘uncommanded commander’. Even in military regime certain acts of the dictator are termed ultra vires. An absolute dictator must act in accordance with the will of the people, where he continues to act contrary, the people would find a way to subvert his power which may result in a revolution. An example is the French Revolution of 1789.

2.       PURE THEORY: 

      The chief proponent of this school of thought is Prof. Hans Kelson. He described law as a succession of norms; that is, one norm derives its validity from another norm which derives its validity from another norm, these succession of norms continues until it gets to a non-law created entity called the grund norm. Every norm derives its validity from the grund norm but the grund norm does not derive its validity from any other norm. in a democratic society, the grund norm is the constitution. All other laws derive its validity from the constitution, and it can alter their content but the constitution does not derive its validity from any other norm.

CRITICISM:

a.       It focuses on the validity of law rather than its content. It concerns itself with whether a law came to be through due process rather than whether the law is moral or immoral. That is, any rule can pass as law once it can satisfy the criteria of the grund norm.

b.       Also how the we locate the grund norm in a democratic society, is it the constitution? How the constitution came into existence? Is it the people or the military that made the constitution?