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John Austin’s Legal Positivism and Igbo Legal System

A Comparative Analysis of John Austin’s Legal Positivism with Igbo Legal System

ABSTRACT

A debate on the pre-existence of law over the state and vice versa, in the history of human existence I believe, is of less importance than the fact that legal and political institutions should be developed “in order to curb innate human aggressiveness”.[1] These threaten the peaceful co-habitation man in the society. “Laws provide the common standard of conduct without which social life would be impossible.”[2] And without laws, man will live in continual fear and danger of violent death; and his life will be solitary, poor, nasty, Brutish, and short.

It was in a bid to prevent this Hobbesian state of nature that many individuals as well as societies and cultures have devoted so much effort in propounding plausible legal systems for humanity. However it becomes disappointing that the energy and time devoted on this issue results in conflicting legal theories. Some penitent and indispensable questions readily then come to mind; can man not have a universal law, having one basic principle even though with different cultural applications and interpretations? Does it mean that Protagoras is correct by asserting that man is the measure of all things, of those things that are that they are, of those that are not that they are not?

It is our aim in this easy to x-ray two among the numerous legal theories already developed namely, John Austin’s legal positivism and Igbo legal system, and compare them, with the view of coming out with a new and more appealing theory that may better serve humanity.

John Austin while developing his ‘command theory’ under legal positivism clearly delineated the boundary of jurisprudence. His definitional boundary of jurisprudence of those rules that can be properly called law, excluded everything, which was not explicitly laid down, everything which was not a command. The implicit conclusion then is that the universally accepted laws which have no determinate commander would fall out side the field of jurisprudence on the bases of the above proposition by Austin.

The traditional Igbo legal conception and ontology which is rooted on the natural law principles, is in complete opposition to these tenets of John Austin’s legal positivism. It suffices to say that the traditional Igbo society being referred to here is “what is called the Igbo village setting. Life and ideas as lived and held in the urban centres are to a large extent different from what obtains in the village.”[3]

In all, the essay contains five chapters. The first gives a clue to the nature and problems of philosophy of law, its scope and a little exposition of some legal theories namely, legal positivism and natural law theory. The second examines the notion of John Austin’s legal positivism: his imperative definition of law, his theory of the sovereign and his command theory and his determination of the province of law. Chapter three x-rays the traditional Igbo legal system, with their different conceptions of the nature and scope of law. The point of interest in this essay culminates in chapter four. Therein, a comparative analysis is made of the two theories previously discussed in chapters two and three. The fifth chapter is the author’s evaluation and conclusion on the topic of discussion.

Worthy of note is the fact that the importance of this essay is hinged on the assumption that “law is essential in all societies and it covers practically all aspects of human existence.”[4] Hence, law essentially has the object to ensure peace and harmony in society by regulating human conduct and interaction within the society.

CHAPTER ONE

THE NATURE OF JURISPRUDENCE

“Etymologically, the term ‘jurisprudence’ is derived from two Latin words namely: juris and prudens. Juris means ‘of law’, and prudens stands for ‘skill’ or science. At different times, however, the term jurisprudence has been variously used to describe mere knowledge of the law or the scientific investigation of fundamental legal phenomenon.”[5] As a discipline, however, jurisprudence interests jurists in many different ways given their different orientations and points of emphasis. These would help to define the nature of jurisprudence.

          In any case, the basic problem in defining jurisprudence lies in the fact that it is a general term. In studying jurisprudence, a variety of considerations might be sought. “For example, a jurist might seek to elucidate legal concepts, or simply consider the ethical or social merits of legal rules and so on”[6] In their approach to jurisprudence, jurists have enunciated many notions and terminologies in their study. The point then is that philosophers are still looking for unifying concepts for the kind of study they undertake in their discipline.


In the light of this search for a unifying concept, on the one hand, we can refer to jurists who seek to identify and analyze the conceptual structure of all legal systems as legal philosophers rather than legal scientists. Legal philosophers look for the normative aspect of law, that is, they do not just look at patterns of human behaviour for laws are not in theory statements but are also rules or norms that prescribe a course of conduct.[7]

Jurists in this category attempt to expose general theoretical frameworks within which civilized legal systems can be understood, no matter where they are found. Elegido refers to this as

a normative part of jurisprudence which would provide a secure rational foundation for the reform of the law. This part of jurisprudence would be normative because its objective would be to prescribe what the law ought to be rather than describe what it is in fact.[8]

Moreover there are legal scientists who, “concern themselves with general jurisprudence- an abstract form of study of the features commonly found in the major developed legal systems. Their major aim is to identify and compare what may be common elements of different legal systems as a matter of fact rather than of logical necessity”.[9] The part of jurisprudence referred to above is descriptive in approach; that is to say, “they described the law as it is, trying to avoid making value judgments about it”.[10]

          On the whole, the word science as employed in philosophy is in terms of organized method of study. The science or philosophy of law is the systematic study of law or legal phenomena in society. Hence, jurisprudence is “an eclectic subject, a mix of contributions from many different sources lacking in common methods, common theoretical presuppositions and common standards of judgment”[11] The sole aim of “jurisprudence in these areas of study is the understanding of the nature, place and role of law within society or within a range of social phenomena”.[12]

 

1.1   THE PROVINCE OF JURISPRUDENCE

Just like every other philosophical discipline, jurisprudence has its own scope or province. However, to encapsulate it within a scope becomes challenging because a major and “ basic problem in defining jurisprudence lies in the fact that it is a general term; like all general terms, it is difficult to articulate;”[13] relating and touching different subjects and disciplines it acquires a wide range of scope. In fact to determine the province of jurisprudence for the philosopher requires a deep sense of carefulness and concentration because “law is essential in societies and covers practically all aspects of human existence.”[14]

The situation above notwithstanding, jurisprudence has been traditionally grouped under two broad divisions: the science of law (analytic jurisprudence) and philosophy of law (normative jurisprudence). “Thus there are basically two schools of jurisprudence, namely, the philosophical school and the scientific school.”[15] The philosophy of law concerns itself with the universal, permanent and basic features of law. It adopts an a priori, metaphysical approach to the study of law. And it studies facts not as they are but, the universal criterion for judging facts. Pizzorni summarizes and classified into three, the main objects of philosophy of law:

(1) The universal concept of law, that is its essential features which must be present in every juridical system; (2) The foundation of law from which every legal system derives its origin and value; (3) The standard or criterion with which all existing laws are guided and evaluated for the problem of the evaluation of law is the problem of the philosophy of law.[16]

The science of law on the other hand focuses on a posteriori, empirical study of law; it looks at law as it is and not as it ought to be. Here scientific jurisprudence studies peoples’ lives in their dealings with one another and the institution. It is concerned with, and only limited to particular laws and legal systems, and not law as such. Thus it is limited to only positive laws or legal systems. In a nutshell;

                 Analytic jurisprudence is interested in the answer to the question: what is law? It involves the scientific analysis of legal structures, concepts and the empirical exercise involved in discovering and elucidating the basic elements constituting law in specific legal systems. Normative jurisprudence deals with the evaluation of legal structures on the basis of some standard of perfection and specification of criteria for what constitutes good law. It concerns itself with the answer to the question of what aught to be the law.[17]

The above division of jurisprudence is not exhaustive. Legal philosophers further grouped jurisprudence into specific fields such as: general, particular, historical, critical, economical, feminist, anthropological and sociological jurisprudence et cetera. The uniting element in all these divisions is that jurisprudence “Seeks to understand and analyze legal rules and systems, and peoples’ concerns about them as they touch their economic, social, political and moral experience.”[18] Hence F O C Njoku calls it “a ragbag of many things.”[19]

The discussion so far reveals the fact that the field of philosophy of law overlaps other branches of philosophy; it shares special common bounds with ethics, political and social philosophy. For M.P. Golding “There are no sharp lines of demarcation to the philosophy of law. Certain problems are common to all these subjects, though they are often dealt with in legal philosophy from a narrower perspective.”[20]

1.2   A PHILOSOPHICAL PROBLEMATIC OF LAW

Philosophy of law, just as every other philosophical discipline, is hunted by its own peculiar problems, namely, the problems of philosophy of how. The Cambridge dictionary of philosophy identifies two broad groups of problems in philosophy of law.

The first concern problems internal to law and legal systems as such, while the second group of problems concern the relation between law as one particular social institution in a society and the wider political and moral life of that society.[21]

It should be kept in mind, however that our primary aim is to delineate these problems rather than proffer solutions to them.

          In line with the above classifications, let us first of all look at the first group of problems. This is “Concerned with one of the central problems of legal philosophy, namely, the nature of law”[22] or “The nature of legal rules.”[23] Law as a social institution “is a complex phenomenon whose elements may be examined from a variety of perspectives and interests”[24] Thus in asking the question what is law – whatever the complexities this question contains or conceals “the philosopher is most of all seeking to define law or analyze the concept of law. In traditional terms, he would be said to be seeking the essence of law”.[25] The attempt to define law or analyze the concept of law, in the sense of specifying its essence, is a search for the set of qualities that are necessary and sufficient to characterize law. This forms the core of the problems in philosophy of law. Moreover, the word law is, of course, used in a variety of contexts. It is used, for example to refer to a rule of law and the law that prevail in a given society. “The explication of such uses is an important part of the problems of the nature of law”.[26] One of the main ways of dealing with the question of the existence of laws in a society “is in terms of the idea of the validity of laws”.[27] This has to do with “the nature of legal validity and of what makes a norm a valid law; the relation between validity and efficacy.”[28]

          I now turn to the elucidation of what it means to say that a legal system exist in a society. Here we shall adopt the view of many historians who maintain that dispute settlement is one of the earliest forms of law. With this in mind, M.P. Golding proffers series of questions that form “the identity conditions for legal systems”.[29] He writes:

Is there an agency, a social mechanism or institution, for settling disputes between individuals? And if so, what kinds of dispute will it undertake to settle, or is it unrestricted in this respect? How are disputes brought to the attention of this agency for purpose of settlement? Is there an adjudicative procedure like that which prevail in our own courts, or do the procedures parallel the more informal methods of dispute settlement that one finds among a closely knit group of friends? Are the decisions of this agency regarded as being merely advisory, or is there some machinery for enforcing its decisions when a party to the dispute is recalcitrant?[30]

The various questions that have been posed so far are centred on the existence of a particular agency that engages in a particular activity namely, the settlement of disputes. I shall call such an agency a jural agency and such an activity a jural activity.

          Among the jural activities enumerated above, the question of whether or not there is a mechanism for enforcing the decision of the dispute settler presents a further problem for philosophers of law. How are the laws of the community enforced? “Is there an agency that has this task, or does the society rely upon diffuse social pressure to secure compliance? What methods are available to this end?”[31] If there exists an agency for enforcing the laws, how is it constituted and how is its membership recruited?

          Furthermore “there are three main problems about laws: That of their identification and existence, legal obligation, and the content of a legal system”.[32] However, the various definitions of the term ‘law’ are intended to capture the widest group of applications of the term. But there is a sense “In which we must admit that the real difficulty is not one of definition at all but of isolating the thing to be defined … the philosopher’s problem is set by the fact that laws generally have a number of characteristics that are shared by non-laws.”[33] “One of the legal philosopher’s tasks, then, is to supply a formula for selecting the laws of a society from among the objects having properties in common with laws and with which laws might be confused”.[34] Such a formula is often spoken of as a theory of law.

          Another problem pertains to “legal rights; under what condition citizens possess them”.[35] Philosophy of law aims at determining and analyzing such rights.

          The second group of problems deals with the relationship between law and the political and moral life of the community. Thus this has to do primarily, with “the nature of legal obligation; whether there is an obligation, prima facie or final, to obey the law as such”.[36] Is there an obligation to obey the law only when certain standards are met, and if so, what those standards might be? Added to the question of legal obligation is “The authority of law; and the conditions under which a legal system has political or moral authority or legitimacy.”[37] Hence the derivation of the authorizing elements of law falls within the confines of philosophy of law.

Also, the problem of “The relation between law, justice, and the role of a legal system in the maintenance of social justice”[38] is of no less importance. At this point we may rest (though we have not exhausted) the two broad classifications of problems as stated above. From our analysis so far, we see the problems of philosophy of law in the same light with H.L.A Hart. He allocates to philosophy of law such “Persistent questions which remain to be answered even when a high degree of competence or mastery of particular legal system of the empirical and dogmatic studies has been gained. Against this background, Hart classifies the problems of philosophy of law into three broad headings, namely: problems of definition, problems of legal reasoning, and problems of criticism of law”.[39]

          Moreover Martin P. Golding summarizes the problems of legal philosophy thus:

What is law? What are the criteria for their existence and validity? Must law satisfy certain moral requirements in order to be binding? What connection if any, is there between the existence of law and the various jural agencies and activities? What are the conditions for the existence of jural agencies?[40]  

 

1.3   SOME THEORIES OF JURISPRUDENCE

1.3.1         Legal Positivism

No philosopher or philosophy operates from a vacuum. An early intimation of legal positivism is to be found in a fragment of a classical statement preserved in justinian’s Digest: “What pleases the prince has the force of law”. Moreover, legal positivism especially that of John Austin, as indicated by Professor F.U. Okafor, got its formula from the Hobbesian theory of the state of nature and his concept of the social contract. Hobbes’ ideas represented a reaction against the decentralizing ideas of the reformation (1517-1648), which he (Hobbes) contended brought anarchy. Thus, Hobbes paved the way for subsequent legal positivisms.

Legal positivism is the strongest objection to natural law doctrine today. It denies the validity or even the existence of natural law, so to speak, and claims to be able to explain law fully without reference to natural law. But then, it is difficult to articulate the tenets of legal positivism because all the legal positivists by no means hold the same view about law. “They stress different aspects of law and conceive law somewhat differently.”[41] For Hobbes, Bentham and Austin, law is a command backed by force, for Holmes, a process of authoritative decision or prediction, for Kelsen and Hart; it is essentially a set of normative propositions. So the theories of Bentham and Austin for instance has been characterized as ‘imperative’; while Kelsen attempted to purge Bentham and Austin’s theories “of what he calls political bias occasioned by the introduction into law of utilitarian principles,”[42] Hart aims at de-emphasizing the coercive element of law. ALF Ross on his Part obliterates the notion of justice from law. He writes:

Justice; therefore cannot be a legal-political yardstick or an ultimate criterion by which a law can be judged … The ideology of justice has thus no place in a reasonable discussion of the value of laws.[43]

Notwithstanding their differences, the legal positivists still have common elements in their notions about law, only the positive law for them is law and any law outside it is nonsense. Law should be studied as it is and not as it ought to be. As such no standard, exist, which a law must conform to in order to be valid; its validity depends on the existence of a sovereign. Austin supports this by saying that “the existence of law is one thing, its merits or demerit another”[44] This brings to the fore their contention that law and morality has no connection whatsoever. Hence Elegido states that:

Many positivists do not think that morality is objective; accordingly they are led to recommend a sharp separation between law and morality so that the uncertainty and subjectivism which they attribute to morality may not infect the law[45]

Because of this, legal positivism rejects a metaphysical a prior study of law.

Legal positivism recognizes therefore as valid laws only such enforceable norms as are enacted or established by the sovereign or the instrument of the state. Thus only statute laws are laws indeed, by the mere fact that they have been posited by an appropriate political authority. In legal positivism, a proposed piece of legislation acquires the force of law as soon as it has passed successfully through the technical process of legislation regardless of any other considerations. Thus like every other philosophical positivism, legal positivism recognizes only facts or laws established by strictly scientific method, unaffected by theological or metaphysical consideration. The supposition is that, positivism as a scientific attitude rejects a priori speculations and seeks to confine itself to the data of sense perception.

1.3.2. NATURAL LAW THEORY

The Cambridge Dictionary of philosophy defines natural law as:

an objective norm or set of objective norms governing human behaviour similar to the positive law of a human ruler, but binding on all people alike and usually understood as involving a super human legislator.[46]

The above definition justified the position of natural law proponents that the principles of natural law were known to man from the cradle, hence “involving the super human legislator”. However this universal principle has different interpretations and applications with respect to cultures. It is the stance of natural law proponents that the law of nature is a law of reason, that is, a law that accords with the rule of reason and is discoverable by reason. This enables all human races to know how to live properly. The fundamental principles are self-evidence to reason while the other principles are deducible from the fundamentals. No wonder Aquinas (the most famous proponent of natural law) defined law as “an ordinance of reason for common good, promulgated by him who has the care of the community.”[47]

The natural law is the prime, the fundamental and foundation of all laws; a law from nature, the ideal and ultimate source of all positive laws. Thus it is the source from which all (positive) laws should derive their legal features and obligatory force. It is that universal natural precept intended by nature to guide human behaviours, urging them to do good and refrain from evil.

The natural law for the exponents is the link between legality and morality “the ultimate sources of both legal and moral aspects of laws.”[48] The validity of all (positive) laws is derived from the natural law, by their conformity with the natural law standards. Natural law specifies grounds that all law must fulfill in other to qualify as laws and limits beyond which they are null and void.

Although like legal positivists, the natural lawyers have different points of emphasis on the natural law, they still have common backgrounds. Hence Gurvitch summarizes nature law thus:

.As a moral justification of all laws;

.As the a priori element of all laws.

.As the ideal by which all existing positive laws can be judged

.As referring to immutable rules

.As an autonomous law valid because it is based on an ideal.

.As a spontaneous law, as opposed to or law fixed in advance by the state.[49]

We may therefore say that a necessary condition for the existence of a legal system in the society is that the laws in the system should contain at least the minimum content provided by these principles. Hence the laws of the state should be grafted on the principles of natural law.

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[1]M. P. Golding, Philosophy of Law, New Jersey: Prenticehall, Inc., 1975, p.ix.

[2] Ibid

[3] F. U. Okafor, Igbo Philosophy of Law, Enugu: Fourth Dimension Publishers, 1993, p. ix.

[4] Ibid., p. ix.

[5] F. O. C. Njoku, Studies in Jurisprudence: A Fundamental Approach to the Philosophy of Law, 2nd ed., Owerri: Claretian Institute of Philosophy, 2007, p.7.

[6] Ibid.

[7] Ibid., p.8.

[8] J. M. Elegido, Jurisprudence, Ibadan: Spectrum Books Limited, 1994, p.3.

[9] F. O. C. Njoku, Op. Cit., p. 9.

[10] J. M. Elegido, Op. Cit., p.3.

[11] Ibid., p.4.

[12] F. O. C. Njoku Op. Cit., p.7.

[13] Ibid.

[14] F. U. Okafor, Igbo Philosophy of Law, Enugu: Fourth Dimension Publishing Co., 1992, p .ix.

[15] J. I.Omoregbe, An Introduction to Philosophical Jurisprudence, Lagos: Joja Educational Research and Publishers Ltd. 1994, P.173.

[16] R. M. Pizzorni, Attualita del Diritto Naturale?, trans. G. W. Paton, Rome: Lateran University Press, 1971, p.16.

[17] F. O. C. Njoku, Op. Cit., p.10-11.

[18] Ibid., p.13.

[19] Ibid.

[20] M. P. Golding, Philosophy of Law, New Jersey: Prentice-Hall, Inc., 1975, p. 1-2.

[21] R. Audi, ed, The Cambridge Dictionary of Philosophy, 2nd ed., New York: Cambridge University Press, 2001, p. 676.

[22] M. P. Golding, Op.Cit., p.6.

19 R. Audi, Op. Cit., p. 676.

[24]M. P. Golding, Op. Cit., p.6.

[25] Ibid., p.7.

[26] Ibid., p.8.

[27] Ibid.

[28] R. Audi, Op. Cit., p676.

[29] Ibid.

[30] M. P. Golding, Op. Cit., p.9.

[31] Ibid., p.10.

[32] Ibid., p.17.

[33] Ibid., p.20.

[34] Ibid.

[35] R. Audi, Op. Cit., p. 676.

[36] Ibid., p. 677.

[37] Ibid.

[38] Ibid.

[39] F. O. C. Njoku, Op. Cit., p.26.

[40] M. P. Golding, Op. Cit., p.24.

[41] Ibid., p.12.

[42] F. O. C. Njoku, Op Cit., p.130.

[43] A. Ross, On law and Justice,London: Stevens and Sons,1958, p.274-275.

[44]J. L. Austin, The Province of Jurisprudence Determined, New York: Weiderfield and Nicolson, 1832, p.184.

[45] J. M. Elegido, Op. Cit., p.49.

[46] R. Audi, Op. Cit.,P.599.

[47] M. P. Golding, Op Cit., p. 30.

[48] J. I. Omoregbe, Op. Cit., p. xii.

[49] R. Gurvitch, A Text Book of Jurisprudence, oxford: Clarendon Press, 1951, p.78.

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