THE SCHOOLS OF JURISPRUDENCE AND THEIR IMPACT ON

INTERPRETATION
The claim that the jurisprudential school of thought that a Judge subscribe to has
a great influence in the way and manner he interpret a document or statute
cannot be over emphasized. Justice Adjei underscores this fact in his work
“Modern Approach to the Law of Interpretation in Ghana” 3 rd Ed.
Whether a Judge will give force and meaning to a provision in a statute largely
depends upon the Judge’s view and appreciation of the philosophical school he
believes. If the Judge believes that every law must conform to a certain notion of
justice and fairness and if a law fails to meet such basic requirement, then it
ought not to be enforced, then such an interpreter will not interpret the law so
as to make its meaning devoid of a sense of justice, morality and fairness. On
the other hand where a Judge subscribe to the notion that it is not the duty of a
Judge to read meanings of fairness or justice into an Act but his sole duty is to
let the meaning of the Act comes out as it is written, such a Judge will enforce a
law despite protestations of its unfairness. Among some of the jurisprudential
schools that have gravely influenced the interpretative duty of the courts are the
schools of natural law, positivism, Realism, the Historical School and the
Sociological approach to law. Let us examine some of the core philosophical
views of these schools and how they shape interpretation:

Natural Law:
At the heart of natural law is the fact that there are certain universal principles of
nature that is discoverable by man through reason. That the principles
concerning human conduct and its management are inherent or are immanent in
the fact of humanity. At the heart of this topic are three things: God, Nature and
Reason of man. Natural law thinkers, not all of them though, attempt to grapple
with the issue of nature and how to move from the law as “is” from what it
“ought to be”. This is seen in how they argue that it is part of natural law for
man to act in certain ways that are deemed natural to man on earth. e.g it is

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natural for man to reproduce and get its own offspring after its kind. So that any
law that interferes with this is not law.

To the Greeks “nature” meant the “order of things”. Such that when man lived
by virtue of reason he was living naturally. And that it was the same kind of law
that governed the cosmos that is discoverable by reason of man. The real shape
and form of natural law began to evolve from the Romans with their concept of
jus gentium and the School of Stoics. One eminent advocate was the Roman
orator, Cicero. He defined natural law as “ right reason in agreement with
nature”. He claims that positive law that is contrary to natural law must be struck
down. And that a legislature that approves theft, adultery, forgery will not be
different from what a band of robbers may do. Nature was the ruling principle in
the universe which was reason and God. Man was, an essential constitution and
nature, rational beings, are instances of the Divine. Cicero notes on law, nature,
reason and God as follows:

“There is a true law, right reason in accord with nature; it is of universal

application, unchanging and everlasting..... It is wrong to abrogate this
law and it cannot be annulled... There is one law, eternal and
unchangeable, binding at all times upon all peoples; and there will be, as
it were, one common master and ruler of men, God, who is the author of
this law, its interpreter and its sponsor”. (Cicero: “The
Commonwealth”).

St. Thomas Aquinas was in the 13 th century to develop this view of Cicero to a
more poignant level. St. Thomas Aquinas, otherwise referred to as Dr. Angelicus
in his work, Summa Theologiae, he dwelt on the concept of just law as
opposed to unjust laws. That unjust law is no law at all and that the force of law
is derived from its justice. He then defines law to mean “ an ordinance of reason
for the common good, promulgated by him who has the care of the community ”.

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For he states that:

“the force of a law depends on the extent of its justice … according to the
rule of reason. But the first rule of reason is the law of nature… every
human law has just so much of the nature of law as it is derived from the
law of nature … but if it departs from the law of nature, it is no longer a
law but a perversion of law”.

For a Judge who is interpreting a penal code that appears to be liberal to allow
for homosexual relationship, will naturally see that as an aberration and a law
that is not universally acknowledged to be in consonance with the rule of nature
and right reason as it deviates from the law of God and therefore unenforceable,
despite shouts of claims that it is the human rights of citizens. There is a sense
of introduction of moral standards to benchmark the law being interpreted and if
the law appears not to meet the moral standard, the Judge that subscribe to that
school moves to the next stage of construing the provision by filling gaps and
supply the “casus omissus” in an attempt to make the law meaningful and just.

And that leads the Judge to invent Purposive Approach to interpretation.

However, that is not to say that all Judges that subscribe to the purposive school
are Natural Law adherents. A Natural Law school Judge will approach the law in
an attempt to discover the intention of the law maker and move to construct in a
purposive way, bearing in mind that Parliament did not intend to enact a law that
would be absurd or unjust in its nature.

Lutterodt J (as she then was) decision in the case of Appiah v Biani [1991]
GLR 155 brings out an intentionalist interpretation that was steeped in the
Natural Law school to ensure that justice was done to a surviving widow whose
husband left an uncompleted house and her attempt to take over the
uncompleted house was resisted by the mother of the deceased. The contention
was whether an “uncompleted house” was within the meaning of “house” under

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section 4 of the Intestate Succession Law, PNDCL 111. At pages 156 and 157 of
the report, the learned Judge noted as follows:

“the Intestate Succession Law, 1985 (PNDCL 111) did not define what a
“house” was, but on a literal interpretation, a house meant a building for
dwelling in, a dwelling place and must therefore have a roof, walls and
windows. On a literal interpretation therefore, an uncompleted house
would not be a house. But the clear provisions of PNDCL 111 was that on
a spouse’s death intestate his self-acquired house should devolve on the
surviving spouse and children. And in order to achieve that legislative
purpose a house would be defined to include any building or part thereof
which was occupied or intended to be occupied and would include both a
residential and a commercial house. Accordingly, an uncompleted house
was a house within the meaning of section 4 of PNDCL 111. Therefore the
uncompleted house of the deceased would devolve on the plaintiff and
their children”.

See also James David Brown v National Labour Commission and

Ahantaman Rural Bank J4/74/2018 dated 19th June, 2019; Nothman v
Barnet London Borough Council [1978] 1 WLR 220 at 228, CA. In effect
Judges that approach their interpretative task from the background of
intentionalism, purposivism and living constitutionalism are largely adherents to
the Natural law School.

Positivist School
The Positivists see purpose of study of laws as nothing but as ‘‘scientific’ inquiry
into humanly established laws’’. This may be reflected in fidelity to one of two
assumptions or propositions. These are – the conceptual distinctiveness of
law from morality. The source of law. That all laws have their source in a
social practice. In effect Positivism can be seen from two main angles. Scientific

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study of law in a more intellectual and analytical form with a calculated attempt
to distance law from natural law. That law need not depend on natural law. And
two the necessity of the positivists to draw a line between law and morality and
see law in its more prescriptive form than in its normative nature. That
law needed to be defined in terms of facts, human prescription,
punishment and reward. It does not mean that morality is not relevant to
them. Just like natural law theories, legal positivism has also undergone changes
over the years and legal positivism as Bentham and Austin postulated has taken
a different approach from what Hart and Hans Kelsen view it. The classical
positivist emphasised the imperative theory of law which simply mean the
command of the sovereign backed by coercive sanctions. That is the
punishment aspect of it.

In other words for a positivist Judge, it is not his duty to formulate imaginary
concepts of justice and fairness and import same into the law. That his
duty as a servant of the legislature is to give force to the written law. This point
was underscored in the case of Republic v High Court, Accra (Fast Track
Division) Ex Parte Ghana Lotto Operators Association (National Lottery
Authority Interested Parties) [2009] SC GLR 372 @ 401 where Date-Bah
JSC noted as follows that:
“No judge has authority to grant immunity to a party from the
consequences of breaching an Act of Parliament... The judicial oath
enjoins judges to uphold the law, rather than condoning breaches of Acts
of Parliament by their orders. The end of the judicial oath set out in the
second schedule of the 1992 Constitution is as follows: “I will at all times
uphold, preserve, protect and defend the Constitution and laws of the
Republic of Ghana”.

In that same case Atuguba JSC stated at page 397 that:

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“It is communis opinio among lawyers that the courts are servants of the

legislature. Consequently any act of a court that is contrary to a statute

such as Act 722 s. 58 (1) – (3) is, unless expressly or impliedly provided,

a nullity”.

Being servants of the sovereign and its law maker, the legislature, it was not for
the Judge to substitute his wisdom of justice and fairness for that of the
sovereign. For such a Judge informed by such philosophical school of
jurisprudence, will tend to apply the literalist, textualist, strict constructionist
approaches to interpretation of the law. Such a Judge will not look beyond the
four corners of the legislation for any intention of the legislature. The law will be
applied even if the effect will be unjust. Archer CJ was a great adherent of this
school of thought as seen in the case of the 31 st December case on the
celebration of 31st December as a national public holiday.

Lord Esher subscribed to this school in adopting the strict constructionist view in
the case of R v Judge of City of London Court (1892) 1 QB 273 when he
stated that:

“The rule is that the courts will give words their ordinary or literal
meaning even if the result is not very sensible”.

Professor Kludze makes the same point in the case of Republic v Fast Track
High Court, Ex Parte Daniel [2003-2004] 1 SCGLR 364, a case where the
applicant had sought to seek an order to disqualify Justice Afreh, a Judge of the
Supreme Court from sitting as an additional Justice of the High Court that a
proper reading of article 145(2)(b) makes Justice Afreh unfit to preside over a
High Court as he had gone past the age of sixty-five. That provision pegs the
retirement age of a Justice of the High Court at sixty-five and as Supreme Court

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Judge, which the Constitution allows him to retire at seventy, it does not make
him fit to sit as an additional Justice of the High Court. Professor Kludze
disagreed and in the majority opinion stated that the Constitution was clear in
the sense that Justice Afreh was not being appointed as a Justice of the High
Court, as the Chief Justice was even a member of the High Court and it could not
be said that the Judge was disqualified from sitting as Judge of the High Court.
He stated as follows:

“the constitutional provision in Article 139(1) is clear and unambiguous. If

we tinker with the words, we may very well create our own self-induced
absurdity and internal incoherence. That Article makes the Chief Justice a
member of the High Court; but it does not say that the Chief Justice can
only be a member of the High Court if he happens to be under 65 years
of age. In our opinion, the Chief Justice, regardless of his age, remains a
member of the High Court and may sit as a High Court Judge for as long
as he holds the office of Chief Justice. We do not question the wisdom of
that provision. That is what our Constitution says. If we impose an age
limit on Justices of the Superior Court of Judicature who are requested to
sit in the High Court, although the Constitution itself imposes no such
limit, we must also impose an age limit of 65 years on a Chief Justice who
is a member of the High Court by virtue of his office. We do not have the
power to do that; and it would lead to internal inconsistency of the
Constitution if we were to embark upon such an adventure”.

The Realist School of Jurisprudence

Legal Realism is a school of thought in legal philosophy which opines that law
should be viewed as devoid of the metaphysics and mystique that attends
legal formalism. Realism is the legal thinking which sees the law as
practical and focuses on the actual workings of the law in society
rather than the abstract reasoning about rules. The contention of

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Realists is that judicial decisions are not based on abstract formal law
but that the human aspect of the Judge has an impact on the decisions.
It is worthy of mention that, there is not a single theory which stands as Legal
Realism. The school consists of a range of views, which may differ at certain
points but the central theme is not lost. The substance remains that this school
of thought advocates a pragmatic approach to the study of law; that the
law is “real” and should be regarded and studied as such. American
Realists are unsupportive of the conservative explanations given to the
judicial process. They teach that what the law is cannot be explained
simply in terms of judges’ application of laid down rules within a legal
system. According to Realists, “general propositions do not decide concrete
cases”. The proponents of American Realism, at the root of their views,
advocate that there is more to legal process than a simplistic and
automatic application of positive law. In essence, Realists espouse that,
a study of law is an inquisition that goes beyond doctrines formally
announced in judicial opinions, into empirical facts and conflicting
social interests. Among the proponents of American realism are J. Chipman
Gray, Oliver Wendell Holmes, Karl Llewellyn and Jerome Frank.

The pillars of legal realism are the following: Evaluation of law in terms of
its effect. Two, law is seen as generalised predictions of what the courts will do.
Three, Legal Realism denounces traditional legal rules and concepts. Four, the
only genuine laws that can be upheld is Judge made laws, the Realists opines.
Finally the Legal Realists sees certainty in the law as a myth due to the ever
changing nature of society.

Oliver Wendel Holmes is a classic figure in Anglo-American jurisprudence. He

contributed to the American jurisprudence on realism in a significant way and
influenced the growth of legal realism. Among the works of Holmes are The
Common Law (1881) and The Path of the Law. In his writings, he

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emphasized the role of the courts. He advocates that the worth ascribed to rules
must be subjected to deliberate reconsideration. Holmes’ theory is popularly
called ‘the bad man’ or ‘prediction theory’. His theory in essence is that the
bad man’s contemplation of the legality of an action is centered on how the law
affects him. In effect the law is a prediction or prophesy of what the
courts will do. He thus emphasized what the courts will do rather than
on logical deductions from general rules. A central theme in Holmes’ theory
is that what the law is cannot be properly understood by casting judicial
judgments and pronouncements into a hermetic logical form. According to
Holmes judicial decision making involves more than just mechanical application
of rules. Holmes espouses that judicial decision making involves
considerations and value judgments which are hidden from the sight of
logical formalism. In his book, The Path of the Law (1897), he writes:

“What constitutes the law? …The Prophesies of what the courts will
do in fact, and nothing more pretentious, are what I mean by the
law” (page 172-173).

This thought subscribes to values such as justice, equity, morality, fairness

as well as personal attributes of courage, firmness, frankness and
integrity in the determination of a dispute. Therefore, a matter before a
court may be determined not on the strength of the formalistic rules in
the books but other soft and salient features. Cases filed in court and its
outcomes could be predicted by having regard to the nature of the Judge
presiding over the court. This school is born out of cynicism in the manner it
seems to have an exaggerated view of the opinion of the courts but not extreme
like the Marxist theory of law.

The Historical School

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This school of thought is of the view that in interpreting the laws by a Judge, it
cannot be understood until the law has been placed in its historical and social
context. That we cannot understand the law unless we begin to
appreciate it from history and its development in anthropology. In this
respect, it is difficult to take a law from one society and transpose it in
another social context without having regarding to the history of the
people and the development of the law. The historical school seems to be
one of the two main Schools that emerged as a reaction to the natural law
school. It is based on an organic growth in human affairs. Within this
concept is the social contractualists, with their belief in the mystic
origin of the state by means of a social contract theory. Historical
school is one of mystical uprising against intellectual clarity of the law
by situating it in social context of history. The historical school rejects
universalism of the laws and emphasis individual nature and qualities
of each society. Germany became the home for the development of the
historical school with Herder and Hegel and their development of the concept of
Volksgeist or better still the national spirit. Different cultures and societies
develop their own values rooted in their own traditions, institutions and history.
Germany as far as the emergence of the historical school was concerned has
been described as

“the people of the romantic counter-revolution against rationalism of the

enlightenment of … the mystical uprising against intellectual
clarity”.

The historical approach to jurisprudence seeks to answer questions such as:

To what extent has today’s law been shaped by its historical root and
growth? There are two major proponents of this approach to the study of law,
namely; Fredrich Karl Von Savigny (1779-1861) Sir Henry Maine (1822-1888).
For the Judge who subscribes to this school of thought will always not
interpret the laws and constitution blindly by citing foreign decisions

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as the basis of his decisions but look for ways to distinguish how the
municipal laws would have to be interpreted taking account of the
history of the nation. See Tuffour v Attorney-General (1980) GLR. And in
the case of Independent Broadcasters Association v Attorney-General &
National Media Commission Suit No: J1/4/2016 dated 30 th November, 2016,
Benin JSC in tracing the wisdom that informed the framers of the Constitution
regarding the freedom of the press by making reference to the work of the
Committee of Experts, noted in page of the judgment that:

“Thus the Constitutional provisions and any other laws that have a
bearing on free expression should be interpreted with the history and
purpose of the constitutional provisions in mind”.

Sociological School

There are two main approaches with the Sociological School and they are
Sociological Jurisprudence and the Sociology of law. The approach of the two
schools of thought is to emphasize the role and function of the law in
society and the interplay between the law and society. Sociological
Jurisprudence deals with the impact of society on the law and how societal
norms and its structures shape the very laws that govern the society. Legal
thought tends to reflect the trend found in sociology. The Sociological jurist
base legal arguments on sociological insights and, is concerned with
the mundane practices that create legal institutions and social
operations which reproduce legal systems. Is a term coined by the
Roscoe Pound to describe his approach to the understanding of the
law. This approach to law stresses the actual social effects of legal institutions,
doctrines, and practices on the law and vice versa. It examines the actual effects
of the law within society and the influence of social phenomena on the
substantive and procedural aspects of law.

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The Sociological Jurist is sceptical of the rules found in the textbooks
and concentrates on what really happens by seeing the law in action.
Flowing from this they tend to be adherents of relativism, and reject
the natural law theories of universalism of concepts. They rely on the
technique of harnessing natural sciences and sociological research for the
building up of a science of law. R. von Jhering, is a strong advocate of this
school. He did not believe in the jurisprudence of concepts but wrote about the
use and employment of the law as means of serving social and practical
problems in society. He wrote that purpose was a universal principle. He
believed that the law must serve social purposes, and that the purpose
of the law in society is the protection of interests. He thought that the
interests of the individual and the interests of the society must be reconciled by a
balancing act. He developed the Theory of Balance of Purposes or Interest.

The law to the sociological Judge must take account of the society and
its environment. And the law must be employed as an instrumentality
of stability and balance in the face of competing claims by powerful
forces in the society. The writings of Roscoe Pound is credited as the most
influential exposition of American Sociological Jurisprudence. He was concerned
with law in action, not law in books. He studied the primary effects of law upon
society. He was committed to law reform. For Pound, law reform should be
primarily aimed at bringing the ‘law in books’ into conformity with the
‘law in action’. Pound, much like Jhering paid little attention to intricate
analysis of concepts. He placed the creative role of the judiciary at the
forefront of his theory. He applied the analogy of engineering to social
problems and developed the theory of social engineering. His theory
stresses the need to accumulate factual information and statistics.

Pound expounded and classified the categories of interests which are

acknowledged in modern democratic society as public interest, social

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interest and private interest. Pound’s classification evidences his conviction
that law is an instrument of social development, and speaks to his approach to
law as means to a social end rather than an end in itself. Pound sees law as
adjusting and reconciling conflicting interests. He regard law as an instrument or
means of regulating interests in a manner in tandem with the requirements of
the social order. Pound also wrote to define the main legal values of a civilized
society. He expounded that in every society, there exists although
implicitly rather than expressly, certain fundamental assumptions on
which the society rests its orderings. Pound is of the view that certain of
these assumptions may be identified as jural postulates of the legal system. In
effect, Pound thought that there exists in every society certain assumptions in
respect of the law or legal system identified by that society as embodying the
law’s fundamental purposes.

Roscoe Pound together with Benjamin Cardozo, one time Justice of the Supreme
Court of US made profound contribution towards this school. Cardozo combined
logic, history, tradition and sociology in his legal reasoning and writings. That a
good judgment must be one that must also be logical and consistent with the
traditions of the society. In the case of Amegashie v Millicom Ghana Ltd Suit
No H3/229/2013 dated the 22nd of March, 2013, the Court of Appeal quoted with
approval the words of Cardozo in the following:

“The final cause of law is the welfare of society. The rule that misses its
aim cannot permanently justify its existence… but I do not mean of
course, that judges are commissioned to set aside existing rules at
pleasure in favour of
any other set of rules for which they may hold to be expedient or wise. I
mean that when they are called upon to say how far existing rules are to
be extended or restricted, they must let the welfare of society fix the
path, its direction and its distance”

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The above sums up the philosophy of the sociological Judge in the adjudication
process. It distances itself from the positivist approach and let the welfare of
society be the driving force in the judgment. The modern purposive approach
and the living constitutionalism approaches to interpretation draws a lot of
inspiration from the historical and the sociological philosophical schools.

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