THEORIES OF LAW

Intended Learning Outcomes

At the end of the class, students should:
 Know the different theories of law.
 Understand the elements of the theories of law.
 Know the merits and demerits of each theory of law.
 Be able to distinguish between the different theories of law.

Introduction
As mentioned before, there is no universally accepted definition of law.
The quest to find a definition for law has led to the development of
different theories on what the ideal meaning, source, nature and purpose
of law should be. Theories of law, otherwise called schools of law, schools
of jurisprudence, schools of thought, philosophy of law or legal philosophy
are what eminent scholars, thinkers, philosophers, jurists, clergies,
etcetera have said about the law over the years. Theories of the law help
to understand the law especially as it relates to the meaning, nature,
sources, purposes, validity and enforceability of law in the society. To
have a broad knowledge of the meaning of the law, it is imperative to
know the different theories of law. They are:

 The Natural Law Theory

 The Positive Law Theory
 The Realist Theory of Law
 The Pure Theory of Law
 The Utilitarian Theory of Law
 The Sociological Theory of Law
 The Historical Theory of Law
 The Marxist Theory of Law

The Natural Theory of Law

This is the first theory of law. It originated from Greece. It refers to a
universal body of moral rules of human conduct which is imbedded in
nature. It is perceived by humans through reason. According to this
theory, law has a divine or supernatural origin, and for human made law
to be legally valid, it must conform to certain objective moral principles.
This theory equates law with morality. Several scholars hold different
ideas about the concept of natural law. Some of its exponents are
Socrates, Plato, Aristotle, Saint Thomas Acquinas, Thomas Hobbes, John
Lock and Jean Jacque Rousseau.

Some of the merits of natural law thinking is that it is the foundation of

human rights law. See the Universal Declaration of Human Rights, 1948,
the African Charter on Human and Peoples’ Rights, 1981, Chapter IV of the
Constitution and the case of Razak Osayiande Isenalumhe v Joyce
Amadin & 3ors (2001) I CHR 458. Natural law is the basis of
international law. See the International Covenant on Civil and Political
Rights, 1966 and the International Covenant on Economic, Social and
Cultural Rights, 1966. All liberation movements like the movements for
the abolition of slavery and colonialism derive from natural law thoughts.
Democracy and the rule of law are also based on the notion of natural law.
See for example the preamble to the Constitution and Section 14(2)
of the Constitution. The demerits of natural laws are that they are
normative or moral rules which are not binding. Also, they are subjective
as they allow for individual thoughts and beliefs on issues. What is right,
just and fair to one person may not be so to another person.

Positivist Theory of Law

This is also known as legal positivism. The early 19th century is regarded
as marking the beginning of legal positivism. Legal positivism or positive
law theory has a number of meanings. Amongst them are that positive
laws are commands, and they are laws as they are actually laid down.
This theory represents the love for order and precision. There is a thin line
between the law as it is and the law as it ought to be. What differentiates
an ought law from an is law is that the former has not passed one or more
of the formal requirement or test that is required to make it the law as it is
written down – positum – while the latter has.

The theory was spearheaded by Jeremy Bentham and his disciple - John
Austin. In his book, the Province of Jurisprudence Determined, Austin
defined law as a command enforced by sanctions. In other words,
legal positivism is a command issued by a sovereign to its subjects and
enforced by threat of punishment. By his definition, law is made up of
three elements – sovereign, command and sanction. Philosophers are
however divided on what the ideal source of positive law should be -
Natural law or the Sovereign? According to Saint Thomas Aquinas, no ruler
has the right to legislate any law that is contrary to natural law; the state
has no absolute power; a ruler is not free to make any kind of law because
he too is subject to the natural law. Therefore, laws that are contrary to
natural law are immoral and should not be obeyed.

Positivists posit that whether a certain rule is a law with power to

command legal obligations depends on whether it is backed by sanctions
rather than morality. They say valid laws are simply rules that come from
certain people, through certain procedures which a society will enforce.
Laws are genuine valid law even though they are grossly unjust. So,
positive law may or may not conform to natural law notions of equality,
freedom and justice. They may in fact conflict with natural law. In Austin’s
view, positive laws may be liberal or draconian depending on the intention
of the sovereign.

Sovereignty may rest on a person like a monarch, a group of persons like

the Supreme Military Council or the Armed Forces Ruling Council under
some Nigerian military regimes or the people of a democratic nation. See
the Preamble and Section 14(2) of the Constitution.
Positive law theory is also called the command theory of law, or the
imperative theory of law. The proponents of this theory include Jeremy
Bentham, John Austin and Prof. H.L.A. Hart.

The merits of positive laws are that they are certain because they are
written. Therefore, they can easily be identified and applied consistently.
Positive laws are enforceable as they compel compliance through the fear
of punishment by human authority. The demerits of this theory is that
defining law in relation to a sovereign within a state is defective because
law is historically older than the state and law exists in the absence of
state. Also, positive laws are not always based on moral norms. Thirdly,
contrary to the principles of positivism, laws are not always couched as
commands. For instance, Chapter II of the Constitution which deals
with the fundamental objectives and directive principles of state policy is
not binding because it is not couched as a command. See S.6(6)(c) of
the Constitution which makes the provisions of the said Chapter non-
justiciable. Additionally, certain rules are backed by the promise of
reward. Observance of such rules is based on the expectation of rewards
rather than the fear of punishment. Even under military regimes where
authority is exercised by brutal force, military governments are still
guided by their own laws. The notion of the uncommandable commander
is thus weak and not defendable. Fourthly, positive laws are not always
obeyed because they are backed by sanctions. For instance, some people
obey the law because it is morally right to do so. Particularly, some people
abstain from murder not because of the sanction attached to it but
because they believe that killing a fellow human being is wrong.

The Realist Theory of Law

This theory is of American origin and its greatest advocate is a former
United States Supreme Court Judge, Justice Oliver Wendell Holmes. The
theory emphasizes the element of uncertainty in law, the function of a
judge in law making, and law as an expression of the state through the
court which occupies sovereign position. This theory is interested in the
actual working of the law rather than the law passed by the legislature.
Realists argue that laws are nothing but the source of law or mere word
formulae whose meaning are gotten from real life facts.

The courts interpret the constitution and have the power to quash any law
that is inconsistent with it. In the course of settling disputes and deciding
cases, judges interpret the law, clarify vague laws and or fill the vacuum
in the law. According to this theory, ‘paper rules’ do not produce certainty.
Rules not put to use to solve practical cases are not laws but dead words.
These dead words of law are brought to life only when applied in reality.
Hence, this theory believes that the judge is the lawmaker and not the
legislator.

The realist approach to the law is highly empirical. It posits that only the
‘reality’ of the law as it is applied to facts matters. According to Oliver
Wendell Holmes,
‘Take the fundamental question, what constitutes the law…… You
will find some text-writers telling you …. that it is a system of
reason, that it is a deduction from the principles of ethics, or
admitted actions, or what not, which may or may not coincide with
the decision. But if we take the view of our friend, the bad man, we
shall find that he does not care two straws for the action or
deduction, but that he does want to know what Massachusetts or
English courts are likely to do in fact. I am much of this mind. The
prophecies of what the courts will do in fact and nothing more
pretentious are what I mean by the law’.

Thus, one should look up to the law courts and not the statute books for a
proper understanding of the law. The law is what the courts pronounce it
to be irrespective of statutory provisions. Hence the judges are the
lawmakers and not the legislators.

This theory otherwise called the functional theory of law is tied to the
doctrines of Ratio Decidendi and Stare Decisis as well as the Hierarchy of
Courts which are of Common Law origin. Its proponents include Justice
Oliver Wendell Holmes, Jerome Frank, Axel Hagerstrom, Karl Olivecrona
and Karl Llewellyn.

Some of the merits of this theory are that the law is influenced by reality
or real facts of cases brought before the courts and it provides practical
solution to deviant behaviour. It also makes for the easy review and
amendment of laws. Thirdly, the law is made by Judges and Justices of the
Superior Courts who are highly knowledgeable in the law. On the other
hand, defining law only in terms of case law undermines civil law systems.
Also, the claim that what the judge says is the law is not totally true in the
sense that it presupposes that there is no law in place, guiding the people
and forming the basis of judicial decisions. If there is no law to guide the
judge in the administration of justice, then there will be likelihood of
dictatorship and anarchy. Since each judge will be free to decide the case
before him as he pleases. Therefore, there must be law as made by the
authorized body to guide the Judges as to what to do in a particular case
in court. Thirdly, this submission may not apply to countries like Nigeria
whose entire laws – statutory or customary - have not been tested in
court.
Fourthly, Judges and or the jury may be influenced by extraneous factors
in arriving at decisions.

The Pure Theory of Law

This theory was developed by Hans Kelsen in the early 20th century. He
stated that the law is a written norm that tells us what to do and what not
to do. According to him, the law must be pure. That is, it must be free
from all extraneous ideas like morals, sociology, history, politics, etc. The
law is made up of heterogeneous rules which should be organised into a
single, ordered pattern. Under this organised system of laws, a law is valid
because it derives its validity from a higher norm.

He submitted that there is a hierarchy of norms, where inferior norms

derive their validity from higher norms on the hierarchy until they reach
the grundnorm - the basic or fundamental norm - which is the final
authority in a given legal system. For instance, the Companies and Allied
Matters Act, 2018 is valid because it was enacted by the National
Assembly. The National Assembly’s power to enact the said Act is valid
because it is empowered to make laws by Section 4 of the Constitution -
which is the grundnorm.

This theory enjoys the merits of legal positivism. However, it is criticised

for emphasising written laws without giving regard to their moral value. It
is also criticised for validating laws simply because they are backed by
higher norms. By this theory, any law made under the Constitution
(Suspension and Modification) Decree by a military government is valid
even though it is oppressive. Thirdly, it is not easy to trace the grundnorm
of a given society. In Nigeria, for instance, the Constitution is regarded as
the grundnorm because it is considered as deriving its validity from the
people. Arguably, this is false because the Constitution is a product of the
Provisional Ruling Council of the General Sani Abacha led federal military
government. As such, it does not stem from the people. Fourthly, the
exclusion of other ideas in considering and applying the law is impossible.
The law cannot be applied in vacuum because the law is made to regulate
the society and it affects the activities of people in the society.

This theory is considered a variant of legal positivism albeit analytical

positivism because it is focused on written laws and their structure or
logical arrangement. The proponents of this theory include Hans Kelsen
and Jeremy Bentham.

The Utilitarian Theory of the Law

This theory is championed by Jeremy Bentham. According to him, the
purpose of the law is to guarantee communal utility. Utility in this sense
means that which affects the happiness of the people. The law should
always seek to promote the greatest happiness of the greatest number of
people in the society. According to this theory, security, equality, liberty
and abundance are the four basic utilities of law. The law should always
seek to balance individual interest with that of the society. For example,
the law allows for the police to invade the privacy of a suspected armed
robber, robbing him of his liberty, in order to guarantee the security of the
larger society.

One of the criticisms of this theory is that it does not specify the method
for balancing the interest between the individual and the society. Also, the
end justifies the means. It does not emphasis the rightfulness or
wrongfulness of actions. Rather it argues that a wrongful act may be
justified in appropriate cases if it is necessary to prevent a greater evil or
loss to the society.

The proponents of this theory are David Hume, Jeremy Bentham, and John
Stuart Mill.

Further Reading
 The Sociological Theory of Law
 The Historical Theory of Law
 The Marxist Theory of Law

Which is the Best Theory?

The above theories are correct in their own right. Each reflects the
subjective beliefs of the scholars on the ideal source of the law and what
should compel people’s compliance to the law. The theories approach the
meaning of the law from different angles. While they are not wholly right,
they are not wrong.

Conclusion
Different thinkers, philosophers, scholars, jurists, and clergies have
proffered different definitions for the law. These definitions reflect what
they think the principles, sources, purposes, and binding force of the law
should be. The reasoning behind the different definitions offered for the
law are distilled into the theories of law. Consequently, law can be
understood from different perspectives. Although, each perspective is not
all encompassing, each is correct in its own right.

Study Questions
1. The relationship between natural law and positive law is analogous
to the relationship between law and morality. Do you agree?
2. According to Justice Oliver Wendell Holmes, ‘the prophecies of what
the courts will do in fact and nothing more pretentious are what I
mean by the law’. Discuss
3. In your opinion, which of the theories of the law is the best and why?