TOPIC 1

THE NATURE OF LAW

Definition of Law

There are several different definitions of Law:

Plato: Law is social control.

Blackstone: Law is rules specifying what is right and what is wrong.

Hart: Law is what the law maker says it is.

Fuller: Law is only law when it is infused with a moral content.

Oliver Wendell Holmes: The prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the Law.

Kelsen: Any kind of content can be law.

Law is generally defined as rules that must/ought to be obeyed. Society has several
kinds of rules which do not all constitute law such as rules of etiquette, rules of
good behaviour and ethical rules. In other words, all laws are rules but not all rules
are laws.

There are basically three types of legal rules:

 Rules which forbid certain types of behaviour under threat of penalty, for
example, criminal rules (duty imposing rules).
 Rules which require people to compensate others whom they injure in
certain ways, for example, remedies.
 Rules which specify what must be done to order certain types of human
activity, for example, to make a will; to marry; to enter into a contract; to
form a Company (power-conferring rules).

Legal Positivism

This theory used to be described as the “Command Theory of Law” in the days of
the Divine Right of Kings when the monarch was the “Uncommanded

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Commander” who issued commands to his subjects who were in a habit of
obedience to him but who himself did not have to obey his own commands.

With the rise of constitutional governments with limitations on the executive

power of state, it was transformed into a theory in which law is what the law maker
says it is. 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, with the
added condition that the law must satisfy all the processes and procedures for law
making set out in the Constitution.

Legal positivism therefore has no business with the content of the law, which may
be good or bad; hence the statement that: “the law is one thing; its goodness or
badness is another thing”. Moral judgement or evaluation of the law, according to
legal positivism, therefore does not affect the validity of the law.

As law therefore, positive law has to be obeyed because the concept of obedience
is an integral part of the definition. 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 in this sense is defined as the punishment that attaches to a failure to obey
a law. But the argument is made that not all laws attract sanctions. For example,
the power-conferring rules such as the power to make a will, to marry, to enter into
a contract, or to form a company – these are all laws even though there are no
sanctions attached to them.

In reaction, it has been argued that the nullity that ensues from the failure to
comply with the power-conferring rules is a sanction that attaches to the law,
leaving open the question whether nullity can indeed be a sanction.

It should be 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. Bad law
therefore is law and must be obeyed.

Legal positivists take this position because it is their view that law must be
described as it “is”. One may have all the objections there are about a given law; it

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does not stop one from describing it as law, evil as it may be. That enterprise of
describing the law is different from expressing an opinion about the law as it
“ought” to be. One’s objection to the a particular law may lead one to describe the
law as bad, but that is different from another enterprise, entirely legitimate , of
prescribing the law as it “ought” to be.

For example, the statement: “adultery is not a crime in Ghana”, is entirely accurate
about the law as it is in Ghana as far as adultery is concerned. But another person
can also make the entirely legitimate statement that: “adultery ought to be a crime
in Ghana”. The former statement is describing the law as it is; the latter statement
is prescribing the law as it ought to be.

Natural Law

Natural law is the antithesis to positive law. 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. That “ought” is the goodness that is required to be part of the
definition of law. Natural law theorists therefore do not accept that “the law is one
thing; its goodness or badness is another thing”. To them, goodness is part of the
definition of law. “Bad law” therefore is a contradiction in terms because a thing
is not law if it is bad. “Law is not law unless it is good” is how natural law
theorists put it.

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? As the English say, “one man’s meat is
another man’s poison” or as Africans used to say in the era of the liberation
struggle, “one man’s terrorist is another man’s freedom fighter”. Natural law
allows individuals to “pick and choose” which laws to obey or disobey on the basis
of one’s morality, in the process leading to anarchy.

American Realism

American legal realism is a variant of legal positivism in the sense that it also
draws a distinction between law and morality. But it differs from legal positivism

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in one essential sense, that the law maker is the judge. “The prophecies of what the
courts will do in fact, and nothing more pretentious, are what I mean by the law”,
is the famous dictum of Justice Oliver Wendell Holmes that sums up this theory of
law.

Holmes also stated that “the life of the law has not been logic, it has experience”
and continued that “the felt necessities of the time, the prevalent moral and
political theories, intuitions of public policy, avowed or unconscious, even the
prejudices which judges share with their fellow men, have had a good deal more to
do than the syllogism in determining the rules by which men should be governed”.

To the American realists, the court is at the centre of law making. When there is a
dispute about the law, resort is had to the court and it is the decision of the court
that becomes the law. In that sense therefore, legislation is a source of law and not
law itself since the judge only uses legislation to help him arrive at his decision.
Understood in this sense, 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”.

Arising out of this analysis is the realist position that law therefore must
concentrate on the judges and not on the abstract law. Since the judge is the
lawmaker, it is important to appreciate all the factors that go into judicial decision-
making; the abstract rules being just one of those factors. American realists do this
by attacking the traditional formula for judicial decision-making, to wit, R + F = D
where R = the Rule, F = the Facts and D = the Decision. According to the realists,
if judicial decision-making was so mathematical, then where R = 4 and F = 2, then
any time you add R to F (4 + 2), you must get 6 as the D (4+2 = 6).

Yet you have three different judges sitting on the same panel, listening to the same
facts, applying the same rule, and yet arriving at different decisions. See for
example the case of Tsatsu Tsikata (No. 1) v. Attorney-General [2001-2002]
SCGLR 189, reversed on review in Attorney-General (No. 2) v. Tsatsu Tsikata
(No.2) [2001-2002] SCGLR 437.

Also if the mechanical formula of R + F = D where true, then cases should not be
reversed on appeal, yet this happens all the time.

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 The American realist theory therefore compels us to search for the other
influences that affect the judge’s decision, and this leads to an expedition into the
sociology of the judge and his life’s influences – the school he attended (his school
mates), his religion, the political party he supports; even the spouse he is married
to.

It is the knowledge of the judge’s sociology that will better enable us to predict
what kind of decision he is likely to give in a given case, which should guide us in
the kind of advice to be given to our client. This is also the reason why sometimes
a client may have a good case but may be best advised to stay out of court. As an
America legal wit put it: “A good lawyer knows the law but a great lawyer knows
the judge”.

Thus the judge often gives his decision based on influences that he does not
articulate in court or in his judgement. Rather, he arrives at his decision on the
basis of those influences and looks for a rule to justify and to rationalise his
decision, hence the whole phenomenon is described as the “inarticulate major
premise of judicial decision making”.

Pure Theory of Law

The Pure Theory of Law is also a variant of legal positivism in its insistence that
law and morality should be kept separate. But it differs from positive law in its
equal insistence that the law as it is must be abstracted from the law as practised
and described as normative propositions. In other words, in describing the law as
it is, the norm must be extracted from the “is”, from the practice, and when so
extracted, the law in its “pure” state is described as “ought” propositions.

Hans Kelsen, a German legal philosopher, is the originator and chief exponent of
the Pure Theory. He explains his “ought” propositions theory to mean that properly
described, law is made up of consequences which “ought” to follow a given state
of affairs. Two examples:

“Stealing” is defined in Ghanaian law as the “dishonest appropriation of a thing of

which you are not the owner”. Translated into ‘Kelsenese’, this would be rendered
as follows:

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“If X dishonestly appropriates a thing of which he is not the owner, then the judge
‘ought’ to punish him”.

The law on testacy in Ghana, on the other hand, is that “a named beneficiary in a
will should inherit the testator”. Translated into Kelsenese, this will be rendered as
follows:

If X names Y as his beneficiary in his will, then the judge “ought” to allow Y to
inherit X’s property” on X’s death.

Described in this way, the law assumes a “pure” form uncontaminated by facts,
sociology, or morality. This way of presenting the law also allows the law to be
compartmentalised into three distinct law-jobs: the legal analyst (the pure theorist)
describes the law in the abstract; the legal sociologist describes the practices of the
people; and the legal politician (the judge) examines the pure law in the light of
what the people are doing and makes a determination as to whether what the
people are doing is legal or illegal.

But the aspect of the Pure Theory which has been popularised in Jurisprudence
because it has been used in the courts to explain the continuity of law in the face of
revolutions is what he describes as the “Basic Norm”, which is also the
phenomenon he uses to explain the dynamic nature of the law, the validity of legal
rules as distinguished from their efficacy and the effectiveness of legal orders and
legal systems.

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 because it was created in a way not anticipated
by the pre-existing loyal order; it was created in a “revolutionary” way. Once we
get to that norm, then we are forced to ascribe validity to that norm and we have to
presuppose the validity of that norm because without that presupposition, we
cannot ascribe validity to any other norm of the system. That norm is described as
the “Basic Norm” or the “Grund Norm” of the given legal order; it is the logical
postulate that enables us to describe all the other norms of the legal order as valid
norms of the legal order. In his comparison of the ‘Basic Norm’ with the faith of a

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religious order, Kelsen describes the Basic Norm as a “transcendental logical
postulate”.

Kelsen however admonishes that the Basic Norm is not presupposed arbitrarily.
It is presupposed only for a legal order that is ‘by and large efficacious’ and in this
way, he draws the linkage as well the distinction between validity and
effectiveness. A legal norm is valid because it is validated by a higher norm and
ultimately by the Basic Norm. But the Basic Norm is only presupposed to be valid
if the given legal order is by and large effective.

This was how jurisprudence found its way into the courts in Ghana in the
celebrated case of Sallah v. Attorney-General which remains the locus classicus on
the Pure Theory of Law in Ghana.

In this introductory part, an effort is made to respond to the basic question, “What
is law?” In attempting a response, however, reliance has been placed on four of the
many theories of law to provide insights into the very nature of law itself. In this
process, it became evident that studying legal method is a stimulating mixture of
relatively abstract reasoning and the use of language to achieve practical results.
When properly understood, legal method may be seen to be a creative process.

Reading List

(1) Lloyd: Introduction to Jurisprudence

(2) H.L.A Hart: The Concept of Law
(3) Lon Fuller: The Morality of Law
(4) Karl Llewelyn: The Bramble Bush
(5) Tsatsu Tsikata (No. 1) v. Attorney-General [2001-2002] SCGLR 189
(6) Attorney-General (No. 2) v. Tsatsu Tsikata (No. 2) [2001-2002] SCGLR 437
(7) Sallah v. AG (1970) Gyandoh and Griffiths, 493
(8) Kwamena Ahwoi: Kelsen, the Grundnorm and the 1979 Constitution (1978-
1981) Vol. XV UGLJ 139
(9) Ian Mcleod: Legal Method (8th Ed.). Palgrave Macmillan Law masters (2011),
pp 3-20.