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UNIVERSITY OF BOTSWANA

FACULTY OF SOCIAL SCIENCES

DEPARTMENT OF LAW

LAW 432: JURISPRUDENCE (4 CREDITS)

LECTURER: Prof. Kenneth A. ACHEAMPONG

OFFICE: BLOCK 23O/ROOM 106

TEL.: (+267) 355 5464

CONSULTATION: Monday: 2pm – 4pm; Tuesday/Thursday: 10am – 11am

HANDOUT

PART 1: INTRODUCTION: WHAT IS JURISPRUDENCE?

i. ETYMOLOGY OF THE TERM “JURISPRUDENCE”

[“ETYMOLOGY” – The study of the origin and history of words and their meanings]

-- English word “Jurisprudence” is based on the Latin word “Jurisprudentia”.

-- “Jurisprudentia” is made up of two Latin words, “Juris” and “Prudentia”.

-- “Juris” is derived from “Jus”, which means “law”.

-- “Prudentia” means knowledge.

-- Thus, “Jurisprudentia” literally means knowledge of law.

(ii) DEFINITION OF JURISPRUDENCE

[NOTE: Definitions are guides, not axioms]

GENERAL:

The science or theory of law

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The theory and philosophy of law

The study of the principles of law

The scientific study of law

SPECIFIC:

C. K. ALLEN – Jurisprudence is the scientific synthesis of the essential principles of

law. [“Synthesis” – the combination of separate elements of thought into a
whole.]

R. W. M. DIAS - At the present time jurisprudence may tentatively be described as

any thought or writing about law and its relation to other disciplines, such as
philosophy, psychology, economics, anthropology, etc.

LORD RADCLIFFE – You will not mistake my meaning or suppose that I depreciate
one of the great humane studies if I say that we cannot learn law by learning law.
If it is to be anything more than just a technique it is to be so much more than
itself: a part of history, a part of economics and sociology, a part of ethics and a
philosophy of life.

KARL LLEWELLYN – Jurisprudence is as big as law and bigger.

[TENTATIVE DEFINITON OF “LAW”: A body of rules (standards of conduct) which

regulate, at times through enforcement, the conduct of human beings in society.]

[“TENTATIVE” – “Not definite or certain because you may want to change it

later”.] The definition given above is tentative because the term “law” is very
difficult to define; this accounts for the myriad of perspectives about law offered
by various legal philosophers and schools of jurisprudence. As Professor H. L. A.
Hart asserts:

“Few questions concerning human society have been asked with such persistence
and answered by serious thinkers in so many diverse, strange and even
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paradoxical ways as the question ‘what is law’”. [Hart, The Concept of Law, 1994,
p.1] [“Paradox” – A person, thing or situation that has two opposite features and
therefore seems strange.]

(iii) TYPES OF JURISPRUDENCE

Jurisprudence may be classified as (a) General Jurisprudence and Particular

Jurisprudence and (b) Analytic Jurisprudence and Normative Jurisprudence.

GENERAL JURISPRUDENCE – This type of jurisprudence deals with general

speculations about the law.

PARTICULAR JURISPRUDENCE – This type of jurisprudence deals with speculations

about particular legal concepts or norms. [It may, also, be referred to as SPECIFIC
JURISPRUDENCE.]

ANALYTIC JURISPRUDENCE (CLARIFICATORY JURISPRUDENCE) – This type of

jurisprudence poses questions peculiar to legal philosophy such as the following:
“WHAT IS LAW?”, “What is the relationship between law and morality or social
practices?” and “What are the criteria for assessing or making a determination
about legal validity”?

NORMATIVE JURISPRUDENCE (EVALUATIVE JURISPRUDENCE) – This type of

jurisprudence enquires about WHAT LAW OUGHT TO BE as opposed to what the
law is in any particular legal system. These enquiries include issues such as
whether one ought to obey a law even if he/she is in conscience opposed to it,
how judges ought to judge or decide cases that come before them and whether
offenders of certain crimes should be imprisoned or not.

(iv) GENERAL CONCERNS OF JURISPRUDENCE [WHAT JURISPRUDENCE IS ABOUT]

== Jurisprudence enables general speculations about the law to be made – e.g.,

What is law for? What does law achieve? Should we value law? How is law to be
improved? Is law dispensable? Who makes law? Where do we find law? What is
law’s relation to morality, to justice, to politics or to naked force? Should we obey
law? Whom does law serve? [Prof. J. W. Harris]
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== Jurisprudence facilitates the study, discussion and analysis of general

theoretical questions about the nature of laws and legal systems and about the
social nature of law. For example, is the nature of law one of being immanent, to
which enacted laws should correspond as closely as possible (as the natural law
theory asserts) or one of being “posited”, i.e., being legally made in accordance
with socially accepted rules? [“Immanent” – present as a natural part of
something; present everywhere.]

== Jurisprudence enables one to undertake an analysis of the justification or

rationale given by judicial officers, such as judges, or other adjudicating bodies,
such as disciplinary committees or tribunals, for their decisions, judgments or
holdings. For example, such analysis may be on the issue whether adjudicators
should base their decisions on teleological considerations (purposes, goals,
policies) or deontological considerations (ethics, rights, principles) alone or a
combination of both.

== Jurisprudence encourages people, especially students, to question their

assumptions about the law and to strive to develop a wider perception of its
nature and essence.

== Jurisprudence makes possible or easier the analysis of the CONCEPT OF THE

LEGITIMACY OF LAW, which postulates that the people from whom the law seeks
obedience must not obey such law from the fear of the consequences of
disobedience but from the belief that the law is authentic or genuine, credible
and authoritative and, hence, entitled to respect, acceptance and, ultimately,
obedience.

== Jurisprudence apprises one with the fundamentals of moral argument. [English

case of Oppenheimer v. Cattermole [1976] A.C. 249 – A Nazi Decree deprived a
German Jewish refugee of his German nationality. House of Lords, obiter:
Majority rejected this deprivation of nationality on the basis of public policy. Lord
Cross: “A law of this sort constitutes so grave an infringement of human rights
that the courts of this country ought to refuse to recognize it as a law at all”.
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Some jurisprudential questions emanating from the statement: What makes up

human rights? What constitutes grave infringement of human rights? Is there any
obligation to obey such a law? Is such a law not “a law at all?”

FREEMAN: “Jurisprudence does not provide answers to these questions but it

does offer pointers, clues, insights…”.

(v) WHY THE VARIOUS SCHOOLS OF JURISPRUDENCE OR LEGAL THEORY

There are various schools of jurisprudence or legal theory because legal

philosophers have differing philosophical perspectives on almost all legal issues as
related to the social milieu in which alone the law finds substantive meaning and
content. These issues revolve around, inter alia, the following: (a) Life and social
existence; (b) Human nature; (c) Ethical reasoning and legal reasoning; and (d)
Government and Citizens’ relationship.

== LIFE AND SOCIAL EXISTENCE” DIAS: “The study of jurisprudence is an

opportunity for the lawyer to bring theory and life into focus, for it concerns
human thought in relation to social existence”. However, there is hardly any
unanimity of thought among jurists as to how law should relate to life and social
existence. Philosophers differ on so many issues of life from conception to death;
hence, the different schools of jurisprudence. SOME OF THESE ISSUES: (a)
conception (when does life begin to warrant legal protection? (Vide, e.g., Art. 4
American Convention on Human Rights, 1969); (b) Protection of Life – Can life be
lawfully terminated through abortion (Roe v. Wade 1973 US – NOTE – The
American Supreme Court has, recently, overruled this decision), euthanasia or the
death penalty? and (c) when is a child dolus capax (doli capax) for purposes of
criminal liability?

IMMATURE AGE FOR CRIMINAL LIABILTY IN BOTSWANA - (i) S. 13(1) PENAL

CODE [CAP. 08:01]: “A person under the age of eight years is not criminally
responsible for any act or omission.” (ii) S. 13(2) PENAL CODE [CAP. 08:01]: “A
person under the age of 14 years is not criminally responsible for an act or
omission unless it is proved that at the time of doing the act or making the
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omission he had capacity to know that he ought not to do the act or make the
omission.”

SCOPE OF ISSUES: The issues cover pregnancy, ante-natal (pre-natal) care, birth,
youth, adulthood and death (autopsy – cause of death; inquest – is death natural
or not?)

CHILD NAMING AND THE LAW

Judge: Girl’s name TALULA DOES THE HULA, won’t do

New Zealand Judge: “The court is profoundly concerned about the very poor
judgment which this child’s parents have shown in choosing this name… it makes
a fool of the child and sets her up with a social disability and handicap
unnecessarily.” == Other offensive names cited by the judge include: “FISH AND
CHIPS” and “SEX FRUIT”. [“New Zealand law does not allow names that would
cause offence to a reasonable person among other conditions, said Brian Clarke,
the Registrar General of Births, Deaths and Marriages.”]

RECENT NAMES on President Obama’s visit to KENYA: “Air Force Jet One”; Air
Force Jet One Barack Obama”; Barack Obama; Sasha Malia. (OBSERVED: No one
named his or her child “The Beast”, the name of President Obama’s armour-
plated vehicle.) (Vide: South Africa’s “Sunday Times” of 26 July 2015)

== HUMAN NATURE: Assumptions about human nature on the basis of which

people are held responsible for their actions or are deemed to possess certain
rights, especially human rights, differ among jurists; hence, different schools of
jurisprudence. The UN defines human rights as follows: “Human rights could be
generally defined as those rights which are inherent in our nature and without
which we cannot live our lives as human beings”. E.g., of a jurisprudential
question arising: does this nature confer legal rights on a man to “marry” a man
and for a woman to “marry” a woman as argued, generally, by gay activists or the
LGBTQ Community? (Refer – recent American Supreme Court judgment on the
issue)
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== ETHICAL REASONING AND LEGAL REASONING: Jurists differ about the extent
to which ethical considerations or reasoning should influence legal reasoning in
terms of legislation or law-making and adjudication by judicial bodies. For
example, should legislation be passed to punish homosexual activity in private
between consenting adults and should courts of law uphold such legislation?
(Hart/Devlin debate on law and morality) [ETHICS: Moral rules or principles of
behaviour governing a person or group] FREEMAN: “The choices of a legislator
and of a judge are ethical choices and have ethical consequences. To debate
about legal reasoning, one has to address ethical reasoning… many disagreements
among legal philosophers are disagreements about the nature of ethics or about
the place of ethical considerations in legal decisions.”

== GOVERNMENT/CITIZENS RELATIONSHIP: Jurists differ as to their perceptions

regarding what the relationship between persons and governments should be. (a)
THEORY OF MAXIMAL BENEFIT – Governments exist to benefit their citizens and
any action of a government is justifiable to the extent that it contributes to the
general well-being of society. (b) THEORY OF RIGHTS – This argues in favour of a
limited role of governments in the life of their citizens. To this theory’s advocates,
governments exist to ensure that rights are promoted and that the general well-
being of society should be promoted only when doing so will not infringe rights.
This is especially the case with human rights, whose quintessence is human
dignity. [“Quintessence”: The most important feature of something].

PART 2: SOME GENERAL THEMES RELATED TO LAW

(i) JUSTICE AND EQUALITY

The concepts of justice and equality are intimately related to one another.
However, they do not admit of easy definitions or agreement among
philosophers, especially legal and political.

JUSTICE – Generally, this concept may be deemed as the fair treatment of people
or the quality of being fair or reasonable. Fairness/Reasonableness usually
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related to the distribution or apportionment of societal resources and

opportunities and the settlement of disputes between individuals, groups or
individuals and groups. [“Fair” – Treating everyone equally and according to the
rules or law”] [“Reasonable” – “Fair, practical and sensible].

MAXIMS OF JUSTICE – (i) Justice delayed is justice denied; (ii) Fiat Justitiae (Let
justice be done); (iii) “Justice must not only be done but should manifestly and
undoubtedly be seen to be done” (R v. Sussex Justices, Ex Parte McCarthy).
ARISTOTLE AND JUSTICE – (i) Justice is either what is lawful or fair; (ii) “Justice
considers that persons who are equal should have assigned to them equal things”.
[The Politics of Aristotle, Book V., trans. Ernest Barker, Oxford University Press,
Oxford, 1946, p.1301a].

DIVISIONS OF JUSTICE – [a] Most famous: Aristotle - Distributive Justice and

Corrective Justice. (i) Distributive (or Proportional) Justice – Equal distribution
among those who are equals. (ii) Corrective (or Remedial) Justice – The
restoration of equality when such equality has been tampered with or disturbed
to create an unequal situation. This involves rectification between two parties
when one has taken from another or harmed this other. [Example – RSA – The
attempt by the ANC Government to restore equality in land ownership, which was
disturbed by the Land Act, 1913, which gave 85% of RSA land to the minority
White population and 15% to the majority Black population (the so-called
Bantustans)]. [b] Another Division: (i) Natural Justice – Justice that applies across
the globe, i.e., universally; (ii) Conventional Justice – Justice that applies or takes
effect from a specific or particular authority.

PRINCIPLES OF NATURAL JUSTICE: (i) Audi alteram partem, i.e., listen to the other
side. The human right to a fair trial emanates from this principle. (ii) Nemo judex
in causa sua, i.e., one cannot be a judge in his/her own cause.

FORMS (TYPES) OF JUSTICE – (i) Formal (or Static) Justice – Equality of treatment
in accord with the classification(s) stipulated or mandated by the law for such
treatment. [E.g., LAW 432 students should, for purposes of that particular Course,
be treated alike or equally in all respects]. (ii) Substantive (Substantial) Justice –
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This refers to the content or substance of decisions taken in matters affecting

apportionment of societal resources and opportunities and involves normative
principles such as equality, need, rights and deserts. [Normative: “describing or
setting standards or rules of behaviour] [Deserts: What somebody deserves].
IMPLICATIONS OF FORMAL JUSTICE – (i) The legal system must state rules
indicating how people are or must be treated in given cases or situations. (ii) The
rules of the legal system must be cast or framed in general terms (apply to groups
or classes of groups and not individuals). (iii) The rules must be applied in an
impartial manner to all those who are within the scope of the rules. [Vide W. J.
Hosten, et. al.]

JOHN RAWLS THEORY OF JUSTICE

UNDERPINNINGS OF RAWL’S THEORY OF JUSTICE: (a) “The Original Position” –

The starting point of imagined negotiators attempting to adopt principles of
justice to regulate/organize their society; (b) “Veil of Ignorance” – Imagined
negotiators lack of self-interested bias and their ignorance of their
views/perspectives of the good life; (c) “Justice as fairness” – The legitimate
principles of justice that would be adopted by these imagined negotiators to
organize their society in their hypothetical negotiation.

RAWLS’ TWO PRINCIPLES OF JUSTICE – The imagined negotiators would agree to

the following TWO Principles of Justice: (i) The 1st Principle - “Each person is to
have an equal right to the most extensive system of equal basic liberties
compatible with a similar system of liberty for all”; (ii) The 2nd Principle (“The
Difference Principle”) – “Social and economic inequalities are to be arranged so
that they are both: (a) to the greatest benefit of the least advantaged, … and (b)
attached to offices and positions open to all under conditions of fair equality and
opportunity.”

RAWLS - REQUIREMENTS OF JUSTICE – (i) The maximization of liberty with

restrictions of such liberty only when necessary to protect liberty itself. [“Liberty”
– General – The freedom for one to live as he/she chooses without too many
restrictions] (ii) Equality for all people in society in terms of both basic liberties
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and the distribution or apportionment of all societal goods (e.g., resources and
opportunities). Inequality in such distribution or apportionment may be allowed
only if it produces the greatest benefit for those who are least well off in a
particular scheme of inequality. (iii) Fair equality of opportunity. (iv) The
elimination of inequality of opportunity that is rooted in or based on
circumstances of birth or wealth. [John Rawls, A Theory of Justice (Harvard
University Press, Cambridge, Mass., 1971, rev. ed., 1999)].

EQUALITY – Generally, the term ‘equality’ stands for the fact of being equal, i.e.,
the same, in rights, status, advantages, etc., that society offers to its members.
CONCEPTIONS OF EQUALITY - There are basically two senses in which the term
equality has come to be used, viz., formal conception of equality; and substantive
conception of equality. (i) Formal Equality (Numerical Equality/Mathematical
Equality/Absolute Equality) – This means all persons should be treated in the
same way in all respects. This sameness-of-treatment idea is the basis of
Aristotle’s contention that “Justice considers that persons who are equal should
have assigned to them equal things” (op. cit.). (ii) Substantive Equality (Relative
Equality) – [Aristotle refers to this as “equality proportionate to deserts” (ibid.)]
This means differentiation in treatment proportionate to concrete individual
circumstances. [“Concrete” – Based on facts not on ideas or guesses]. It permits
the institution of special measures, such as affirmative action programmes, to
elevate underprivileged persons or groups in society to a level in society which
ensures them real or genuine equality with other persons or groups in such
society. (E.g., BEE – Black Economic Empowerment Programme in RSA].

(ii) MORALITY

GENERAL MEANING: The quality of being in accord with standards of right or

good conduct or a system of ideas of right and wrong conduct. ETYMOLOGY –
Latin word “MORALITIS”, which means “manner, character, proper behaviour”.
CONTEXT – Morality perceived as the differentiation of intentions, decisions and
actions between those that are good or right and those that are bad or wrong.
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MORAL CODE – A system of morality according to a particular philosophy,

religion, culture, etc. EXAMPLE OF MORAL CODE – The Golden Rule: “One should
treat others as one would like others to treat oneself”. Religion: In terms of
religion this is stated as “Do to others as you would have them do to you” [Holy
Bible, NIV, LUKE CHPT. 6 V. 31] CULTURE MORAL CODE: The Spirit of “UBUNTU”:
I am because you are! IMMORALITY: The active opposition to morality, i.e.,
opposition to that which is good or right. AMORALITY: An unawareness of,
indifference toward, or disbelief in any set of moral standards or principles.
GROUP MORALITY: This develops from shared concepts (or ideas) and beliefs and
is often codified to regulate behaviour within a culture or community. In this
context various defined actions come to be called moral or immoral. Individuals
who opt for or choose moral actions are usually deemed to possess moral fiber
whereas those who indulge in immoral behaviour may be labelled as socially
degenerate. [“DEGENERATE”: To become worse, for example by becoming lower
in quality or weaker] LAW AND MORALITY: To what extent, if at all, should the
law be used to enforce morality? [Vide, Hart/Devlin debate on Law and Morality]

(iii) THE RIGHT TO DEVELOPMENT

THEORIES OF DEVELOPMENT: There are a myriad of theories of development in

all disciplines. However, in terms of its underpinning of law development is
confined to the human right to development which, on 4 th December 1986, the
United Nations proclaimed in its DECLARATION ON THE RIGHT TO DEVELOPMENT
[A/RES/41/128, 4 December 1986]. DEFINITION OF DEVELOPMENT - [Preamble,
Para. 2] “Development is a comprehensive economic, social, cultural and political
process, which aims at the constant improvement of the well-being of the entire
population and of all individuals on the basis of their active, free and meaningful
participation in development and in the fair distribution of the benefits resulting
therefrom.” [“Comprehensive”: Including all or almost all the items, details,
information, etc., that may be concerned; complete; full”]. THE RIGHT TO
DEVELOPMENT – [Article 1(1)] “The right to development is an inalienable human
right by virtue of which every human being and all peoples are entitled to
participate in, contribute to, and enjoy economic, social, cultural and political
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development, in which all human rights and fundamental freedoms can be fully
realized.” [“Inalienable”: That cannot be taken away]. GENERAL RESPONSIBILITY
FOR DEVELOPMENT – [Article 2(2)] “All human beings have a responsibility for
development, individually and collectively, taking into account the need for full
respect for their human rights and fundamental freedoms as well as their duty to
their community, which alone can ensure the free and complete fulfillment of the
human being, and they should therefore promote and protect an appropriate
political, social and economic order for development.” THE RIGHT AND DUTY TO
FORMULATE APPROPRIATE NATIONAL DEVELOPMENT POLICIES – [Article 2(3)]
“States have the right and the duty to formulate appropriate national
development policies that aim at the constant improvement of the well-being of
the entire population and of all individuals, on the basis of their active, free and
meaningful participation in development and in the fair distribution of the
benefits resulting therefrom.”

(iv) THE THEORY OF MAXIMAL BENEFIT AND THE THEORY OF RIGHTS [Vide “(v)
WHY THE VARIOUS SCHOOLS OF JURISPRUDENCE OR LEGAL THEORY”, supra.

(v) HUMAN RIGHTS

HUMAN DIGNITY – The protection and maintenance of human dignity, which is

secured by all human beings by virtue of their sense of identity, is what the
concept of human rights entails. This is why human dignity is perceived as the
quintessence of human rights. [“DIGNITY”: A sense of your own importance and
value; self-worth] THE RATIONALE FOR HUMAN RIGHTS - The concept of human
rights contends that for human beings to attain a life underpinned by human
dignity, they must have certain rights which, essentially, are entitlements and
derive from their nature as human beings (humanity); these rights constitute
human rights. [Vide the Universal Declaration of Human Rights, 1948 (UDHR)]. UN
DEFINITION OF HUMAN RIGHTS (GENERAL) – “Human rights could be generally
defined as those rights which are inherent in our nature and without which we
cannot live as human beings.” [United Nations, Human Rights: Questions and
Answers, United Nations, New York, 1987, p. 4]. ESSENCE OF HUMAN RIGHTS
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(UN) – “Human rights and fundamental freedoms allow us to fully develop and
use our human qualities, our intelligence, our talents and our conscience and to
satisfy our spiritual and other needs. They are based on mankind’s increasing
demand for a life in which the inherent dignity and worth of each human being
will receive respect and protection.” [Ibid.] EXAMPLES OF HUMAN RIGHTS – (i)
Civil and Political Rights: The right to life, liberty and security of the person, the
right to freedom of movement, the right to freedom of opinion and expression,
the right to equality before the law and the equal protection of the law, the right
to a fair trial, the right to freedom from arbitrary arrest, detention or exile. (ii)
Economic, Social and Cultural Rights: The right to an adequate standard of living
for one and his/her family, including adequate food, clothing, housing and
medical care, the right to education, the right to form and to join trade unions,
the right to take part in the cultural life of one’s community, to enjoy the arts and
to share in scientific advancement and its benefits. (iii) Solidarity Rights: The right
to peace, the right to development, the right to the equal enjoyment of the
common heritage of mankind, the right to self-determination on the basis of
which peoples freely determine their political status and freely pursue their
economic, social and cultural development and the right to international peace
and security. VALUES UNDERPINNING HUMAN RIGHTS – Respect, Power,
Enlightenment, Well-being, Health, Skill, Affection and Rectitude (Uprightness,
Integrity). [M. N. Shaw, International Law, 2nd ed., Grotius Publications Ltd.,
Cambridge, 1986, p. 173]. These values are interdependent and their common
denominator is human dignity; hence, human dignity is seen as the fulcrum or
basis of human rights. [“Values”: Beliefs about what is right or wrong and what is
important in life]. THE PRINCIPLE OF EQUALITY AND NON-DISCRIMINATION – (i)
Common Humanity of Human Beings: This is one of the fundamental principles of
the concept of human rights and emanates from the notion that by virtue of their
common humanity ALL human beings are equally entitled to human rights. (ii)
Statement of Principle: UDHR Preamble, Para. 1: “Recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family
is the foundation of freedom, justice and peace in the world”. (iii) UDHR’s
Substantive Provision on Principle: UDHR Article 2: “Everyone is entitled to all
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the rights and freedoms set forth in this Declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.” SOME UN HUMAN
RIGHTS INSTRUMENTS: [a] The International Bill of Human Rights - (i) Universal
Declaration of Human Rights, 1948; (ii) International Covenant on Economic,
Social and Cultural Rights, 1966; (iii) International Covenant on Civil and Political
Rights, 1966 and its Optional Protocols; [b] Some Others - (i) Convention on the
Prevention and Punishment of the Crime of Genocide, 1948; (ii) Convention on
the Nationality of Married Women, 1957; (iii) International Convention on the
Elimination of All Forms of Racial Discrimination, 1965; (iv) Convention on the
Elimination of All Forms of Discrimination against Women, 1979 [CEDAW –
Women’s Bill of Rights]; (v) Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, 1984; and (vi) Convention on the Rights
of the Child, 1989.

(vi) RULES, PRINCIPLES, PRESUMPTIONS AND MAXIMS

RULES: (1) Rules are standards of conduct on the basis of which the general
society or some segments of it is organized in one form or the other. (2) Rules are
statements of what may, must or must not be done in a particular situation. (3)
Rules of society or social rules may, as Professor H. L. A. Hart contends, either be
social conventions (which tend to be largely unwritten and not legally
enforceable) or obligation-imposing social rules (which are largely written, such as
the Penal Code, and are legally enforceable). [“Convention”: The way in which
something is done that most people in a society expect and consider to be polite
or the right way to do it]. (4) Some legal rules may be used to interpret the law
when there is a controversy as to the meaning of the law in a particular context.
Examples of such rules are the Literal Rule, the Golden Rule and the Mischief Rule
(or the Rule in Heydon’s Case). (5) All laws are made up of rules but not all rules
make up or constitute law. [NOTE: General definition of “Law”: A body of rules
passed, enacted or made by a legislative body which regulate, at times through
enforcement, the conduct of human beings in society].
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PRINCIPLES: A Principle is a rule or theory that something is based on. [“Theory”:

The principles on which a particular subject is based]. EXAMPLES OF PRINCIPLES –
(i) “Nullum crimen sine lege” – [Latin – meaning, literally, “no crime without a
law”]. This is the principle which stipulates that conduct does not constitute crime
unless it has previously been described to be so by the law. It is sometimes known
as the principle of legality. (ii) “Nulla poena sine lege” – [Latin – meaning,
literally, “no punishment without a law”]. This is the principle that a person can
only be punished for a crime if the punishment is prescribed by law.

PRESUMPTIONS: A Presumption is a belief in a certain state of affairs that is held

or deemed to be true or correct until a contrary state of affairs comes into being
or is proved to exist. PRESUMPTIONS REBUTTABLE: Almost every presumption is
a rebuttable presumption, i.e., it applies until a contrary indication comes into
being. EXAMPLES OF PRESUMPTIONS RELATING TO PEOPLE: (i) Presumption of
Innocence – The legal presumption that every person charged with a criminal
offence is innocent until proved guilty (beyond reasonable doubt). [NOTE: Though
referred to as a presumption this presumption of innocence is, in fact, a
fundamental principle of the criminal law]. (ii) Presumption of Sanity - This is the
legal presumption that every person charged with a criminal offence was sane,
and hence responsible in law, at the time he allegedly committed a crime.

EXAMPLE OF PRESUMPTION OF SANITY - S. 10 PENAL CODE [CAP. 08:01]: “Every

person is presumed to be of sound mind, and to have been of sound mind at any
time which comes in question, until the contrary is proved.”

(iii) Presumption of Incapacity of Male to have carnal knowledge - S. 13(3)

PENAL CODE [CAP. 08:01]: “A male person under the age of 12 years is presumed
to be incapable of having carnal knowledge.” [“Carnal knowledge” – (law) sexual
intercourse.]

EXAMPLES OF PRESUMPTIONS OF STATUTORY INTERPRETATION:

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(i) Presumption against retrospectivity of legislation – There is a

presumption that a statute is not meant to apply retrospectively (from a
date in the past).

(ii) Presumption against ousting the Courts’ jurisdiction – There is a

presumption that a statute shall not be interpreted so as to oust the
jurisdiction of the Courts.

MAXIMS: A maxim is a well-known phrase that expresses something that is

usually true or that people think is a rule for sensible behaviour. [“Phrase”: A
group of words without a finite verb, especially one that forms part of a sentence.
“The green car” and “on Friday morning” are phrases]. [“Verb”: A word or group
of words that expresses an action (such as eat)] [Finite forms of “be” = “am”, “is”,
“are”, “was”, “were”; infinite forms of “be” = “being” and “been”]. EXAMPLE OF A
MAXIM [An aid to Statutory Interpretation]: Ejusdem Generis [Latin – “of the
same kind”] – When in a statute or piece of legislation a list of items or specific or
particular words which form a genus or class is followed by a general word or
expression, the general word or expression is, in the absence of a contrary
intention in the statute, construed or interpreted to include those other things of
the same class as (ejusdem generis with) the particular words or expression.
Example – Statute referring to “dogs, cats and other animals”; held by Court –
Expression “other animals” did not include tigers and lions as they were not in the
same class as dogs and cats; it referred to domestic animals such as dogs and cats.

THE RULE OF LAW: The supremacy of law, i.e., the condition in which all members
of society, including its rulers, accept the authority of the law. [“Supremacy”: A
position in which you have more power, authority or status than anyone else]. A.
V. DICEY AND THE RULE OF LAW: In his book Law of the Constitution, 1885,
Professor A. V. Dicey attributed this notion of the rule of law to the Constitution
of the United Kingdom. THE THREE CONCEPTS EMBODIED IN THE RULE OF LAW
[A. V. DICEY]: (i) The absolute predominance of regular law, so that the
Government has no arbitrary authority over the citizen. (ii) The equal subjection
of all (including officials) to the ordinary law administered by the ordinary courts.
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(iii) The citizen’s personal freedoms are formulated and protected by the ordinary
law rather than by abstract constitutional declarations. [“Arbitrary”: Using power
without restriction and without considering other people].

THE CONCEPT OF THE LEGITIMACY OF LAW:

GENERAL DEFINITION OF LAW:

A body of rules (standards of conduct) USUALLY passed, enacted or made by a

legislative body and which regulates, at times through enforcement, the conduct
(commission and omission) of human beings in society (Tentative).

LAW’S ENFORCEMENT: Law may be enforced or implemented through force by

way of sanctions, penalties, compulsion and the threat of force. Such force is
generally prevalent in criminal justice systems. ENDURANCE/DURABILITY OF
LAW: Though law may sometimes require enforcement to be effected, the
endurance or durability of law mandates that law must go beyond the use of
force as human conduct cannot be effectively regulated only by the threats of
force, no matter how credible such threats may be. [“Endure”: To continue to
exist for a long time.] [“Durable”: Likely to last for a long time without breaking or
getting weaker.]

LEGITIMACY OF LAW: The endurance or durability of law is rooted in the concept

of the legitimacy of law. This concept postulates that there is the need for a belief
by the people from whom the law seeks obedience in the legitimacy of the law,
i.e., the people must believe that the law is authentic or genuine (i.e., real),
authoritative, credible and entitled to respect and acceptance and, ultimately,
deserving obedience. [“Authoritative”: That you can trust and respect as true and
correct.] [“Credible”: That can be believed or trusted; reliable.] It contends that
people should not obey the law only from the fear of punishment or sanctions
that may be imposed upon them for disobedience of the law.

LAW’S LOSS OF LEGITIMACY: When law loses its legitimacy it will become difficult
to enforce it or have it obeyed by those from whom the law seeks obedience
because the law will lose its credibility. In such a situation the law will exist only in
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name as because of its lack of obedience it will not have its desired effect in
society. Those who are entrusted by society with the law’s enforcement, such as
the Police and judicial officers, may even refuse to enforce it as directed by law.

SECURING LAW’S LEGITIMACY: There are a number of ways by which the

legitimacy of the law may be secured. The following are some of the major ones:
(a) charisma; (b) immemorial tradition; and (c) the impersonal rational authority
of the law. [“Secure”: Likely to continue or be successful for a long time.]

CHARISMA: This is the powerful personal quality or gift that some people have
and which enables them to impress and influence many of their fellow human
beings. This charisma may reside in certain leaders or rulers (e.g., Presidents,
Prime Ministers) or officers (e.g., Parliamentary leaders or Speakers) or offices
(e.g., Ombudsman) or positions (e.g., Religious Leaders) in society. By it, the law
will be obeyed not because of any fear of a possible use of force but as a result of
a belief that the law is authoritative and worthy of respect and acceptance.

IMMEMORIAL TRADITION: This is tradition of ancient origin and beyond the

reach of memory. The sanctity of such tradition provides the legitimacy of certain
societal rules which have been transformed into law, especially customary law.
[“Tradition”: A belief, custom or way of doing something that has existed for a
long time among a particular group of people.] [“Sanctity”: The state of being very
important and worth protecting and preserving.] [“Custom”: An accepted way of
behaving or of doing something in a society or a community.]

THE IMPERSONAL RATIONAL AUTHORITY OF THE LAW: This is by far the

predominant basis of law’s legitimacy. In terms of this in order for law to be
accepted by the generality of the people within any jurisdiction, and even by
those who administer the legal system of that jurisdiction, it must have the
following two attributes: (i) it must be based on the rule of law and not the rule of
men; and (ii) it must be rational in its content and orientation. [“Rational”:
(Of behaviour, ideas etc.) based on reason rather than emotions.]
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MAX WEBER AND LAW’S RATIONALITY: According to Max Weber, the rationality
of law, in terms of its content and orientation, has two aspects, viz., a formal
logical aspect and a substantive ideological or value aspect. (i) Formal Logical
Aspect – This aspect of law’s rationality is based on a perceived consistency of the
law with regard to the legal rules, principles, standards and concepts; hence, it is
perceived as being static (Formalism of the Law). (ii) Substantive Ideological or
Value Aspect – This aspect of law’s rationality is grounded on conformity with the
changing values of society; hence, it is seen as being dynamic (Realism – Society is
in a state of flux and law must change in order to accommodate such societal
changes.) [“FLUX” – Continuous movement and change.]

END