THEORIES OR PHILOSOPHIES OF LAW CONTENTS:

1.0       Introduction

2.0       Objectives

• Main Content
• The Natural Law School
• The Historical School
• The Positive School
• Sociological or Functional School
• The Realist School

4.0       Conclusion

5.0       Summary

6.0       Tutor Marked Assignment

7.0       References/Further Readings

INTRODUCTION

In order to satisfactorily answer the question what is law? One must therefore delve into jurisprudence. Jurisprudence is the study of legal philosophy. In as much as philosophy consists of one’s belief about something or thoughts, the question as to what law is all about, is provided by examining different beliefs of prominent scholars to ascertain what they have deemed is law. Thus, the various beliefs have come to be known as theories or philosophies of Law, or School of Jurisprudence.

OBJECTIVES

At the end of this unit, you are expected to know the following:-

• What jurisprudence is all about?
• Different types of legal theories
• Which of these philosophies of law do you consider most appropriate?

MAIN CONTENT

The Natural Law School:

The central thesis of this School of thought is that law has a divine or supernatural origin and that for human laws to be legally valid, they must conform to certain objective moral principles based on the nature of man and the dictates of reason. It was precisely based on the divine right theory, the prevailing belief at that time that man was totally subject to the will of God and incapable of making the right law to shape his world.

However, the main problem, which confronted the natural law thinkers, was how to check the absolute power and its abuse by heavy-handed monarchs. Thus, the natural law school offers a convenient basis or starting point for the development of the concept of fundamental (natural) rights – equality, human rights, democracy and the rules of natural justice the world over.

The Historical School:

This theory was developed to counter the widespread influence of the natural law school in the seventeenth and eighteenth century Europe in overthrowing the Monarchs and creating egalitarian societies. Thus, the historical school viewed law as an outgrowth from the history of the society rather than an artificial contrivance. The denial of artificiality is an aspect, which it shares with the natural law school.

According to the historical school, there is what is called, “a spirit of the people binds the people of a particular society together and distinguishes them from any other people”. Accordingly, before a law is made for a society, there must be a good understanding of the history of the people.

Therefore, for the law to be valid, it must accord with the history and the way of life of the people that is, their customs.

The Positive School:

This school emerged at a time when scholars were beginning to realize the need for imperialism in the study of philosophy. Diametrically opposed to the natural and historical schools is the positivist school, which denies the upward growth of law from the society.

The positivists posited that nothing is law except the one laid by the sovereign or his agents. The agents of the sovereign, permitted to make law according to this school, are the legislators and judges.

Therefore, laws are those made by the sovereign or through his agents by Statutes or Case laws. They believe that laws are not ethics, religious or moral rules unless they  are enacted into law.

The Sociological or Functional School:

This school of thought is particularly attractive for its insistence that jurists should study the actual social effects of legal institution and ensure that legal rules are effective in achieving the purpose for which they are designed.

Therefore, the functional school considered law from the point of view of what the courts will do with respect to a particular legal problem. Notwithstanding what may be contained in the Statutes and prior decided cases, one has to wait for a court’s decision on a particular legal problem before one can know what the law is.

The Realist School:

The greatest advocate of the Realist School was Justice Oliver Wendell Holmes of the United States Supreme Court. He saw law as an expression of the State through the courts, which in essence, occupy the position of the sovereign. However, he  emphasized the element of uncertainty in law and the role of judges in the law-making process. In order to know the law, he argued, one must look, not into Statute books, but up to the courts. Therefore, this theory was mainly focused on the court system – particular trial courts. They did not want the judicial system biased in favour of the good boys and against the bad boys.

SELF-ASSESSMENT EXERCISE

Discuss the views of the different theories of law.

CONCLUSION

In this Unit, we have discussed the theories or the philosophies of law, such as the natural law school and its views on law, the positive school, the sociological or functional school, and finally, the realist school as they conceptualized law from different backgrounds and orientation.

SUMMARY

Their different backgrounds and experiences undoubtedly, informed their cardinal conception of law from different angles. For instance, the angle from which a judge would view a particular case or law will be different from that of a legislator.

TUTOR-MARKED ASSIGNMENT

Critically comment on the various theories of law.

REFERENCES/FURTHER READING

Atiyah, P. S., (1983) – Law and Modern Society, London, Oxford University Press.

John Ohireime Asein, (1998) – Introduction to Nigerian Legal System, Ibadan, Sam Bookman Publishers.

Sanni, A. O., (1999) – Introduction to Nigeria Legal Method, Ile-Ife, Kuntel Publishing House