INTRODUCTION

TOPIC 1: NATURAL LAW

Nature is a phenomenon of a physical world as opposed to human creation.

Natural law is a branch of law that is severally defined or described as the

law of nature, higher law, divine law etc.

Natural law is a philosophy which states that certain laws and moral values
are inherent in human nature.

Naturalists believe that law is embodied in nature and it is man who uses his
mind and sense through reasoning to deduce law from nature.

Natural law are basically theological or secular. Theological regard that the
universe is being founded and ruled by some deity, God etc. who laid down
rules and principles to regulate and it’s these principles where human
conscience and morals are derived from.

1.1 Definition by Authors

According to Lloyd defined “natural law” as Ideals which guide legal

development and administration; a basic moral quality in law which prevents
a total separation of the ‘is’ from the ‘ought’; and the content of perfect law
deducible by reason.

John Finnis states that a theory of natural law claims to be able to identify
conditions and principles of practical right-mindedness, of good and proper
order among men and in individual conduct. It consists of two sets of
principles i.e;

i. certain basic values that are good for human beings;

ii. The requirements of practical reasonableness.
According to Dias - natural law thinkers includes a moral element in their
conception of law since they think of it as an indispensable factor in the
continued existence and functioning of law.

Salmond defines natural law as the idea that law consists of rules in
accordance with reason and nature.

In conclusion to this, the principles of justice and morality constitute the

natural law.

1.2 ESSENTIAL FEATURES OF NATURAL LAW

1. Natural law as Universal, Unchanging and Everlasting

It is usually claimed to be universal, unchanging, and everlasting.

Looking at the major legal systems of the world, this assertion can hardly be
faulted – traces of it exist in them irrespective of time, space and geography.

Consider for example, the social contract theory.

Natural law has been used by democrats, liberals, autocrats, dictators, etc.
to advance their causes, positive and negative to the common good of the
people.

2. Good and Evil

Natural law is usually associated with good. This is predicated on the origin
of nature or humanity.

The almighty creator is good and in Him is no evil. He is omnipotent and

omniscient.

In the fullness of these qualities, He designed the universe (including

humanity) in an orderly fashion for the good of all.

Operating within the scope of that design, harmonizes with that order.
Deviation therefrom means disorder or rebellion.

Hence, anything done consistently with the divine design is good; anything
contrary is bad or evil.
Thus, man-made law that does not meet the requirement of divine good is
evil.

The validity of law is confined only to the issue of whether it is right to do

one thing or wrong to do another.

E.g. the law that gives me the right to own acres of land in a community of
landless peasants is valid if it was promulgated in accordance with the
requirements for such promulgation.

However, under natural law or morality, this would be bad or evil because
one man possesses to the detriment of many others. Therefore, such law
would be a bad law.

3. Man’s Comprehension of Nature

As a creature of God, Man has some of His qualities.

Some of these are intelligence and reasoning power.

When God created man, He gave him the power of intelligence and of
reasoning.

Rene Descartes says that to live according to reason is to live naturally.

Hence man is able to decipher what the divine is or possibly is.

To Aquinas, natural law represents man’s participation in the cosmic order

or universe with the aid of the power God has put in man.

We may call that capacity to participate in nature, conscience.

Because man is also invested with the power of will or of choice.

Consequently, man can decide to, for e.g. kill despite his knowledge of its
inconsistency with nature.

Natural law is usually used synonymously with morality. Where such morality
coincides with natural law, such synonymous usage is justified.

4. Absolute values and ideals emerging therefrom, which serves

as the validity of laws.
A law lacking in moral validity is wrong and unjust.

According to Immanuel Kant, he believes that the thrust of law is

external while morality is a matter of internal conscience.

Evident in inchoate offences e.g. the law of attempt under the Penal Code.

1.3 HISTORICAL ODYSSEY OF NATURAL LAW

This looks at the processes natural law has gone through in attaining its
attributed status in contemporary times.

STAGE 1: Early Origins

In pre-modern societies there was a union of secular and religious beliefs.

Societies were believed or deemed to be ruled or directed by gods or spirits.

This sprouted the belief that there was a power beyond human power,
directing the affairs of the human society with certain rules, principles or
laws.

Discovery of these laws ultimately enabled the human society to access the
divine good plans or intentions of these spiritual forces for humankind and If
human society tried well enough, it could discover them.

Put differently, in order for the human society to experience cosmic order
and harmony, it was essential for it to harmonize its conduct with such divine
plans and intentions.

In this stage, there was both Greeks and Romans heritage.

 Graeco-Roman Heritage

This belief system was boosted in Europe in the classical era when the rise of
Judeao-Christian tradition saw monotheism replacing polytheism.

Great philosophers like Socrates, Plato and Aristotle emerged during this
period.

Socrates and Plato asserted that there were principles of morality which
were discoverable through the processes of reasoning.
Plato further developed the idea of justice as an end in itself having qualities
of truth and reality higher than positive law.

Aristotle saw nature as the capacity for development inherent in particular

things and aimed at a particular end.

Pythagoras on justice, said, equality was tantamount to justice.

Thus, the reward or punishment of human action should be proportional to

his degree of his goodness or badness.

He defined justice in mathematical terms: Justice is like a square number. It

gives the same for the same and thus is the same multiplied by the same.

 In Roman Heritage,

One of the leading lights of this era was Cicero, the Roman orator. He
described natural law as: true law as right reason in agreement with nature;
it is of universal application, unchanging and everlasting; and it summons to
duty by its commands, and averts from wrongdoing by its prohibitions.

2ND STAGE: Scholastic Period (1100 – 1400)

This was the Medieval Period in Europe that witnessed the theological
rendition of natural law especially by St Augustine and St. Thomas Aquinas.

With the Catholic Church leading the system of thought, the period saw the
integration of rationalist and religious approaches to natural law through the
seminal work of St. Thomas Aquinas.

 St. Augustine (354 – 430) believed that our earthly existence has
been irredeemably tainted with the original sin.

He distinguished between the City of God and the City of man.

While the City of God refers to doing the will of God, the City of man
symbolizes a life of sin.
  St. Aquinas divided law into four groups as follows: eternal law, divine
law, natural law and human law.

According to him, law must be for the common good, and just.

Where, however, such law is unjust, it was unworthy of being called a law.
Thus, the saying lex injusta non est lex (an unjust law is no law).

Thomas Aquinas (1224 – 1274) identified four kinds of law: Eternal Law;
Natural Law; Divine Law; and Human Law.

a. Eternal Law (Lex aeterna)

This is law that is known only to God though some blessed select few may
perceive it. Through its God rationally directs all creatures. All creatures are
ruled by the law.

b) Divine Law (Lex Divina)

This is the law revealed in the scriptures. It comes in handy when law
discovered by human reason fails. i.e. it clears doubts in the mind of man as
to the law of nature.

In the Bible, for example, God revealed certain laws or rules of conduct to
the people of Israel through such prophets as Isaiah, Jeremiah, Ezekiel, etc.

c) Natural law (Lex naturalis)

It is the law that manifests man’s participation in the workings of the cosmic
law or the law governing the whole of the universe through the medium of
reason.

It is that small, still voice in a man’s heart, the conscience, the ‘small god’
which exposes the difference between good and evil, and encourages one to
do the former and to refrain from the latter.

For e.g. self-preservation is natural law.

Also, since everyone shuns ignorance, the search for knowledge is natural
law.

d) Human (Lex humana)

This is law made by man, otherwise called positive law. It involves particular
uses of the natural law.
Since natural law is man’s participation in eternal law, amidst such
participation, man enacts positive law for the governance of man and things.

OBEDIENCE TO UNJUST LAW

In the family of natural law, law is either just or unjust.

To Aquinas, a just law has three features:

i. It must harmonize with the dictates of natural law, or ‘ordered to the

common good;’
ii. The law giver has not exceeded his authority; and
iii. The law’s burdens are imposed on citizens fairly.

3RD STAGE: Secularization of Natural Law

Under the influence of Reformation or Renaissance in Europe, the religious

clout of the Roman Catholic Church waned.

The direct implication of this was the Catholic Church’s loss of monopoly of
thought. Protestant theories bloomed.

Their main remit was to develop the theory of natural law independent of the
explanation paraded by the Papacy.

One of the secular natural law theorists, Hugo Grotius and Dutchman. They
separated natural law from its theological foundation.

He insisted that natural law was independent of divine law or command, and
emphasizing that natural law was derivable from human reason or intellect.

He even asserted that natural law would exist even where there was no God.

4TH STAGE: Decline of Natural Law

The influence of natural law dwindled in the 18 th and 19th centuries. During
the 19th century natural law theory lost influence as utilitarianism and
Benthamism, positivism, materialism, and the historical school of
jurisprudence became dominant.

The cause was the emphasis on scientific approach to learning, an approach

that favoured rationalist and secularist perspectives to the study of human
phenomena

There was an increasing assault on natural law for its reliance on

metaphysics and idealism.

For example, David Hume (1711-1776) criticized natural law for attempting
to derive an ‘ought’ from an ‘is.’

The fall of natural law incidentally saw the rise of positivism with the likes of
Austin and Bentham insisting on the separation between positive law and
morality.

5TH STAGE: Rebirth of Natural Law

The 20th century witnessed a revival or rebirth of natural law doctrines

because of a combination of factors, representing the failure, weakness or
excesses of positivist doctrines.

In the 20th century, however, natural law theory has received new attention,
partly in reaction to the rise of totalitarianism and an increased interest in
human rights throughout the world.

We shall consider some of these briefly:

i. Horror of Second World War (1939-1945)

Prosecuted under the inspiration of extreme positivism where Nazi Germany
deified the State and where Hitler became the uncommented commander to
whom obedience was compulsorily offered.

Hence, no surprise that the war exterminated six million Jews.

Coming on the heels of the adoption of the UN Charter was the UDHR, 1948,
ICCPR and ICESCR, 1966
Since 1945, the rebirth of natural law has manifested in a glut of human
rights instruments at both international and regional levels and in domestic
legal systems.

The recurrent refrain in all these instruments and laws is the protection of
human rights of persons and the restraint of the freedom of action of States.

ii. Human Rights Violations

This is allied to the observation made on the 2 nd WW.

Prior to 1945, human rights were the reserve domain of each sovereign
State.

iii. Scientific Excesses

The necessity for the revival of natural law has come into sharper focus with
the excesses that accompanied scientific progress and advance.

Science has come to ease the hardship hitherto experienced by humanity in

daily existence.

It is a welcome development. However, instances abound where pursuit of

scientific inquiry has been geared towards harming human race. Examples

Such as developing biological and chemical weapons, weapons of mass

destruction, etc.

Human cloning (remember dolly – sheep – the first cloned mammal born in
1996);

Homosexuality;

Lesbianism;

Same-sex marriage;

Euthanasia, etc.

LAST STAGE: Restatement of Natural Law

This relates to the natural law discourse by modern natural law theorists, for
example, John Finnis.

Finnis, a British lawyer and philosopher was desirous of investigating the

utility of natural law in contemporary society. To Finnis, natural law is a set
of principles of practical reasonableness to be utilized in ordering human life
and human community in the process of creating optimal conditions for
humans to attain the objective goods.

Finnis’ restatement proceeds from a denial of the criticism of positivists that

natural law theorists seek to derive an ought from an is. He de-emphasized
the metaphysical character of natural law, perhaps, due to severe criticisms
from positivists.

The modern natural lawyers focus on the common good without which the
society will be in disarray.

To Finnis, the normative conclusion of natural lawyers was not based on the
observation of human behavior or nature but from the reflective grasp of
what is evidently good for all human beings.

In conclusion, with this contemporary interest in mind, let's now turn our
attention to the natural law theory as understood by the tradition of Classical
Realism.

1.4 RELATIONSHIP BETWEEN NATURAL LAW AND POSITIVE LAW

The clash between natural law and positive law is legendary.

 Natural law, essentially focuses on de lege feranda (the law as it

ought to be).
WHEREAS
Positive law essentially focuses on the law as it is (lex lata).
  Natural law emerges from a blue without formal procedure with the
aspect of morality.
WHEREAS
Positive law is a product of conscience, formal procedure

Such order is superordinate or superior to positive law.

 Natural law only prescribes good conduct.

WHEREAS
Positive law is a prescribes right or wrong judgment. Austin insisted on
the separation of the validity of law from its propriety. For example
the law that gives one the right to own acres of land in community of
the landless peasants is valid if it was promulgated in accordance with
the requirements for such progulamation.

NATURAL LAW IN UGANDAN LAW

There are so many laws which citizens may have good reason to consider
offensive to the moral conscience, yet no immediate choice but to obey
hoping, as Socrates advised, that law makers would be aroused to the
consciousness of the unjustness of the law, and carry out requisite reforms.

i. Social Contract
To vindicate that natural law is universal, there are several layers of natural
law in most, if not all, legal systems including the Ugandan legal system.

The Constitution clearly demonstrated this.

Social contract is what was accepted as the basis upon which a person or
group of persons could exercise political power over the other members of a
political organization.

It is a contract, or assumed to be so, between the rulers and the ruled.

The underlying implication is that no authority can impose itself on the

people in a manner inconsistent with the dictates of the social contract.

ii. Separation of powers

Another trace of natural law is separation of powers.
To John Locke and Montesquieu, the doctrine is that:

a) The same persons should not be part and parcel of more than one of
the three arms of government;
b) An arm of government should not interfere in the affairs of any other
two arms of government; and
c) One arm of government should not exercise the functions of another
arm.
The functions of each are clearly defined and set out in the Constitution and
any action taken or to be taken by each arm must be in accordance with the
Constitution.

iii. Sovereignty
Sovereignty originally propounded by Bodin belonged to the State and, most
important, to the symbol of the State such as the head of State, president,
prime minister, etc.

However, in its modern rendition, sovereignty now belongs to the people.

For example, Ugandan Constitution declares sovereignty to belong to the

people of Uganda from whom government through the Constitution derives
all its powers and authority.

Note that this perspective is consistent with modern international law where
the sovereign’s sovereignty has been displaced by people’s sovereignty.

iv. Fundamental Human Rights

In addition to States’ subscription to international human rights instruments,
domestic legal systems equally have a pride of place for human rights
norms.

Note, however, that there is no absolute right without corresponding duty.

Also note the provision of compulsory acquisition of property which is a

manifestation of the privilege of public interests over individual interests.

Finally, note the provision which permits derogation from all the rights in the
interest of defense, public safety, public order, public morality, public health
or for the purpose of protecting the rights and freedom of other persons.
1.6 CRITIQUE OF NATURAL LAW DOCTRINE

The doctrine of natural law has been criticized for several reasons including
the following:

i. Reliance on Metaphysical Validation

Natural law is a law built around idealism. Knowledge is acquired by means
of metaphysical or transcendental inquiry.

In the Age of Science, or Renaissance, many philosophers severely criticized

the natural law doctrine for its inability to prove or demonstrate the truth of
its claims.

Hence, natural law was condemned for its unscientific methodology.

For e.g., David Hume said - natural law is real only in the sense that some
individuals entertain the feeling that it exists.

He believed it was a figment of the imagination of fertile minds.

He contended that its truths cannot be asserted or demonstrated

meaningfully, and concluded that it attempts to derive an ‘ought’ from an
‘is.’

Natural law was not also sparked by the proponent of utilitarianism, Jeremy
Bentham.

He developed his theory upon the pedestal of denigrated natural law.

He had described natural law as nothing but a phrase and natural rights as
nonsense upon stilts.

He had argued, inter alia, that the spread of natural law would undermine
the fabric of sovereignty and fan the embers of rebellion.

ii. Proviso to Universality

Danish jurist, Alf Ross (1899-1979) mounted a virulent attack on natural law
doctrine in his On Law and Justice (1958).

According to him, the metaphysical speculation underlying natural law is

totally beyond the reach of verification.
He maintained that the doctrines of natural law are neither eternal nor
immutable.

To him, natural law has been utilized to defend every conceivable kind of
demand, slavery and fraternity.

It is in this light that Friedmann notes that ‘natural law has at different
times been used to support almost any ideology’.

Lastly, Ross argued that the metaphysical postulates of natural law are no
more than ‘constructions to buttress emotional attitudes and the fulfilment
of certain needs.’

iii. Diversity of Moral Opinions

We have said that natural law represents man’s participation or share in the
workings of the universe with the aid of his reasoning power.

We asserted that natural law is that small, still voice in a man’s heart, the
conscience, the ‘small god’ of a man.

However, we realize the fact that man is different from man. Because one
person’s background, status, belief system, etc., is different from another’s,
their appreciation of or participation in natural law is bound to be different.
Therefore, there is no oneness of natural law. In other words, there is no
unity within the family of natural law.
It is more or less a divided house since consensus is very unlikely.

TOPIC 2: LEGAL POSITIVISM, ITS MANIFESTATION AND ITS

CRITICISMS
 The term positivism is derived from Latin “ponere”, positum, meaning to
put positive law is that which is manmade i.e. defined formally.

Positivism is an idea deduced from scientific experience. (Empiricism).

Positivism refers to the system of philosophy that postulates that our

knowledge of matter is derived only from what we experience of. Knowledge
is thus based on things that have been tested and verified by the senses
rather than metaphysical speculations/ idealism. Hence in simple terms
positivism is defined as an idea deduced from scientific experience.

Legal positivism is a theory of law that emphasizes the law as it is against as

it is ought to be (it is the description of the law as it is in a specific period of
time, specific place by reference to the formally). It is the law which seeks to
adopt the scientific approach to the study of law by focusing only on
phenomena that can be experimented, observed or demonstrated.

Others define positivism as an ideological opposition to the natural law

theory.

Legal positivists are concerned with distil anguishing legal norms from
other kinds of social norms (rules of etiquette, customs, social or moral
conventions, aesthetic standards, rules of game and so on ).

As early as the fourth century B.C, thinkers in China and India developed
ideas of sovereign rule and the separation of law morality that were
predecessors of Anglo-American positivism.

They believe in formal law without giving it morality aspect.

LEGAL BASIS OF LEGAL POSITIVISM

a)-Epistemology

The epistemology of legal positivism is empiricism since the idea of

positivism is deduced from scientific experience.

It also forms part of the seperability thesis. This means that they separate
ethics from jurisprudence hence giving the test of legal validity to a given
norm not its moral or ethical contests and qualifications.
The separation of law from morality also extends to the incident of the origin
of a law maker.

John Austin captures this world view as follows;

“The existence of law is one thing, its merit or demerit is another thing”

In South African case of State vs Makwanyane(1994), court stated that

even sanctions in legal positivist lack morality.

In conclusion to this, legal positivists believe in formal law without giving it

the morality aspect.

b)-Source thesis

These believe that the absolute source of law is the sovereign. Sovereignty is
simply defined as a person or group of persons to whom it is rendered
habitual obedience.

According to Thomas Hobbes, he defines a sovereign as the sole legislator

having powers to make and repeal laws when he pleased.

Bodin (1530-1597) he defines sovereign as the highest power over citizens

and subject unrestrained by law. This means that a sovereign is the one who
makes law for the subjects, abrogates the law which is already made and
amends absolute law.

Austin believes that “sovereign is characterized by illimitability, unity or

indivisibility.”

C)-Command thesis

This can be seen in the way the earlier scholars of this school like Jerome
Bentham and Austin perceived law.
Austin perceived law as a command issued by political superior to whom the
majority of members of the society are in the habit of obedience and which is
enforced by a threatened sanction.

They believe that “ if a rule or law doesn’t proved from such commander,
then it is no law despite its goodness”.

Austin believed that custom is still attributable to the commander because

customs are indirectly commanded by being made on grounds of judicial
decision.

In the Ugandan case of Salvatori Abuki vs AG(1998),Manyindo DCJ

supported this command thesis.

The concept of the command thesis is not new in Uganda since between the
period of 1971 to 1979, Uganda was ruled under decrees and legal notices.

COMMON PHILOSOPHERS UNDER LEGAL POSITIVISM.

1. JOHN AUSTINE

Although he chronically follows Hobbes and Bentham he will be studied first

because he is generally recognized as the first dominant figure in legal
positivism or as it is often called the ‘Austian Positivism.

when the university of England was Established and John Austine was chosen
to teach jurisprudence, he wrote a book on Jurisprudence and in his book, he
was not concerned the Technical Rules of Law employed by practitioners, he
directed his attention to more fundamental and philosophical legal principals
he doesn’t confine himself to any single body of Law.

Among others his material deal with the Roman, French, German and English
Law. He emphasizes the need for the precise terminology and much of his
book represents an effort to clarify the meaning of such concepts as positive
Law, Natural Law, Positive Morality, Right, Sovereign, Sanction, Obligation
and Duty.
To Austin the matter of Jurisprudence is positive law :law, simply and strictly
so called :or law set by political superiors to political inferiors .But positive
law (or Law ,simply and strictly so called ) is often confounded to objects to
which it is related by resemblance ,and with objects to which it is related by
way of analogy :with objects which are also signified , properly and
improperly , by the large and vague expression of law .

To Austin, Commands are of two species, some are laws or rules .the others
have not acquired an appropriate name, nor does language afford an
expression which will mark them briefly and precisely. I must then mark
them as “occasional or particular commands. Laws and other commands are
said to proceed from superiors and to bind or oblige inferiors. Superiority is
often synonymous with precedence or excellence. We talk of superiors in
rank, wealth or superiors by virtue.

According to Austin, he defines law as the chain of command from the

sovereign with the sanction on those who don’t follow it.

2. THOMAS HOBBES

Thomas Hobbes in his seminal work Leviathan postulated the first detailed
notion of the notion of law based on the notion of sovereign power. As
Hampton writes law is understood to depend on the sovereign will no matter
what a laws content, no matter how unjust it seems, it has been commanded
by the sovereign then and only ids the law.

3. JEREMY BENTHAM

Practically Bentham only has two major aspects that is to say like most of
the other positivists Bentham condemned the ambiguous use of
moral and legal terminology because of the attendant confusion.

Bentham did not favor the absolute and unlimited governmental powers his
writings where largely designed to and did inspire intelligent changes in the
law his book on the principles of legislation identified the basic principle of a
desirable civil and penal codes there is no doubt, he did not consider law as
its own justification he said the general object which all laws having common
is to augment the total happiness of the community

While recognizing that laws ought to conform to his standards of moral

evaluation, he condemned Blackstone’s flat statement that that we are
bound to disobey all human laws which are contrary to natural and laws
Bentham considered such a statement as sheer nonsense he said I see no
remedy but natural tendency of such doctrine is to impel man by a force of
conscience to raise up in arms against any law whatever that he happens not
to like

Bentham agreed that that under certain circumstances disobedience was

proper only the results are for the greater good.

Jeremy Benthan defines law as the command of the sovereign.

4. JUSTICE OLIVER WENDELL HOLMES JUNIOR

Holmes is accused of having a philosophy which says that law is unrelated to

moral principles and that the state has unlimited powers statement relied
upon to defend these allegations.

5. PROFESSOR H.L.A HART (1907-1992).

Professor of jurisprudence at oxford, was one of the foremost contemporary

positivists.

Responding to the relativism and rule-skeptics of legal realists which

questioned whether judges were constrained by laws, Hart accepted the
traditional view that law is a system of rules, but rejected Kelsen’s static
normative universe.

Harts’ characterization of a legal system distinguished between primary and

secondary rules. The primary rules of a legal system dictated the obligations
of its citizens. The secondary rules established the ways primary rules are
created, changed, enforced, and interpreted: they are procedural rules about
law making.

An important secondary rule for hart was the rule of recognition, which would
specify sources of law and establish criteria for the validity of laws. This rule
of recognition was particularly important in handling the question of judicial
discretion.
H.L.A Hart liked Austin’s theory of Sovereign but claimed that Austin’s
command theory failed in important aspects. Among the ideas developed in
Harts book The Concept of Law (1961) are

- A critique of Austin theory that claw is a command of the sovereign

enforced by a threat of punishment

- A distinction between internal and external consideration of law influenced

by max Weber’s distinction between legal and sociological perspective of law

- A distinction between secondary and primary legal rules etc.

He defined law as a social theory.

6. JOSEPH RAZ

Was a pupil of HLA Hart and was common in continuing death? Of legal
positivism since Hart’s death? This included editing in 1994 a second edition
of Hart’s Concept of Law with an additional section including Hart’s response
to other philosophers’ criticism of his work.

Raz also argued that contrary to Hart that a validity of law can never depend
on morality However Raz came to understand that Law can depend on
morality in certain circumstances.

7. HANS KELSEN

He defined law as the rule of norms.

MANIFESTATION OF LEGAL POSITIVISM

1. First is that most states throughout the world have codified their laws
into legislation.

In Africa attempts have been made successfully in some countries for

example in Uganda the Austin’s idea of law still subsists in Uganda that law
is different from Morality and this was witnessed during Idi Amin’s military
dictatorship upon the overthrow of the elected Government he went ahead
to rule by decree passing laws that court administered without questioning
his moral authority of making them

2. Another manifestation is the prevalent existence of legislation law

which even though unjust or unfair or immoral like those regulating
prostitution have been upheld by Judges

For example in Uganda Vs Haruna Kanabi ,Criminal case No 997 of 1995,

the magistrate instead on enforcing the law on sedition arguing that it was
the law not withstanding she felt it offended human rights.

See also the decision of mayindo DCJ in the case of Salvatori Abuki Vs
AG,Constotutional Petition No1 of 1998, where he said that court should
enforce the law even though it be cruel and inhuman hence the
manifestation of the saying that law is what it is but not what it ought to be.

3. Legal positivism makes it clear that the law is always supreme and no
one is above and anything inconsistent with it is considered Null and
Void.

For example this is manifested under Article 2 of the 1995 Constitution

where its stipulated that the constitution is the supreme law of the country
and shall have binding forces on all the authority and persons this was also
witnessed in the case of State Vs Makwanyane, where the accused
where sentenced to death penalty and they challenged the death penalty
since it was against their constitutional right to life

4. The rule of Sovereignty in Positivism is manifested in Uganda under

the its 1995 Ugandan CONSTITUTION AS Amended under Article 1
where it places sovereignty in the hands of the people who are
supposed to exercise it in accordance with constitution.

5. The idea of sanction backed law. Sanction is defined as the power

which forces the majority to follow the command of the sovereign.
These one can be seen under administrative law, bill of rights and
more applicable under the criminal law system especially the Penal
Code Act.
 6. Belief that law is the command of the sovereign. This was seen in idd
Amin’s regime decree. Seen in the time Museveni came in power for
example legal Notice No.1 of 1966.

7. The positivists social order theory. It was manifested in many cases in

Uganda. In an Electoral case of Dr. Kizza Besigye vs Museven &
Electoral Commission, court held in Museveni’s favor with a rationale
of maintaining social order.

8. The idea of social fact. This can be seen in a number of legislations in

Uganda which emerged due to social facts in the society which
required immediate remedy.forexample the land Act, the Marriage
Act.

9. The idea of normative positivists is relevant to Ugandan context. For

example a number of law in Uganda are as a result of social fact like
the Marriage Act, Land Act etc.

CRITICISM TO POSITIVISM LAW.

The most influential criticism of legal positivism all flow from the suspicion
that it failed to give morality it’s due. The law has important functions in
creating Harmony and peace in our lives, advancing the come good, in
securing human rights, all to govern with integrity and yet it has no
relevance with our morals,

All the most criticism of the Positivism owe to the work of H.L.A Hart in his
Seminal work of the CONCEPT OF LAW. In his book, Hart points out that
Austin’s theory provides at best partial account of legal validity because it
focuses on one kind of Rule namely that which require citizens to do or
abstain from certain actions whether they wish to or not While most legal
systems must contain the so-called legal rules the regulate citizen behaviors.
Hart believes a system containing entirely of the kind of liberty restrictions
found in criminal is at best a rudimentary or primitive legal system

On Hart’s view Austin’s emphasis on coercive force leads him to overlook a

second kind of primary rule that confers upon citizens the power to create,
modify, and extinguish rights and obligations in other persons. As Hart points
out the rules governing the creation Contract and Wills can’t plausibly be
characterized as restrictions on Freedom that is backed up by threats of the
sanction

Lon Fuller denies the separation of law and morality, he believes that
whatever virtue inherent in or follow from clear, consistent, prospective, and
open practices can be found not only in law but in all other social practices
with those features, including custom and positive morality

His other criticism is that if law is a matter of fact, then are without an
explanation of the Duty to obey if a moral; law is made there’s an obligation
to obey

Ronald Dworkin denies there can be any general theory of the existence and
content of law, he denies that law theories or a particular legal system can
identify law without recourse to its limits’ and he rejects all institutional focus
of positivism. For him a theory of law is a theory of how cases ought to be
decided and it being, not only with an account of political organization but
also with an obstruct ideal regulating the condition under which government
may use coercive force over their subjects

A society has a legal system only when and to extent that it honors this
ideal and its law is the set of all considerations that the courts of such a
society would be morally justified in applying whether or not those
considerations are determined by any source

It must be noted that Hart criticized the Austrian position admits that in the
absence of an expressed constitutional or legal provision it could not follow
from a mere fact that a rule violated standards of morality that it was not a
rule of law and conversely it could not follow from the mere that a rule was
morally desirable that it’s a rule of law for example ,The dangers of
positivism were felt in the Nazi Germany where Codified laws were enforced
not withstanding their unjust immoral character after the fall of the Nazism
there was a resurgence of natural law that law should take into consideration
what is moral and just in society. The experience of the Nazism increased the
birth of the Normative Jurist like Prof. Hart and Hans Kelsen.

Hart argued that the law was not to be an aspect of just order but one of the
good orders in society and posited the idea of internal morality of law
questions were raised as to whether subsequent trial of the Nazi war
criminals didn’t lend a moral element to what was wrong with the positive
law so called
 Questions have also been posed as to whether there is instance where it can
be said that a moral element is alluded to in moral decisions in appraising
positive law for example the majority view in the case of Salvatori Abuki
case that the witch craft act was cruel and inhuman and therefore in effect
unconstitutional.

Another example is in the line of the of dissenting view of Twinomujuni J.A in

Onyango Obbo and another Vs A. G the appellants were charged and
convicted of publishing false news contrary to the penal code act. They
appealed to constitutional court on ground that the publication of false
information was incompatible with the constitutionally protected right to
freedom of expression and that the penal provisions to sedition are not
justified and unnecessarily in a free and democratic society. Court held that
section 50 of the Penal code is inconsistent with the constitution so far as
it limits the right to the freedom of speech and expression which include the
freedom of the press furthermore in the case of State Vs Makwanyane, the
accused where accused were convicted and sentenced to death for murder.
They challenged the death penalty on grounds that it was inhuman and
degrade contravene the constitution that dis allowed such treatment

To the positivist the law is to entirely to preserves of the sovereign I e his

law-making power is undivided. Who acted without influence this was
evident in Uganda during president Idi Amin’s dictatorship 19971-79 today
however parliament which is the sovereign is subject to outside influence for
example there influence from the Executive, the various political parties and
even from forces beyond the country like international monetary fund and
world bank and other donor agencies and countries the latest example is
the eternal influence being the outrage by the United states of America and
European Donor countries against the Anti-Homosexuality Bill tabled in
parliament by Bugiri Municipality members of Parliament Hon Asuman
Basalirwa

Again, to positivists the Sovereign power is again not to be limited. This not
however true of Ugandan situation since parliament as the sovereign has
limitations placed on it. These limitations are procedural e g the requirement
of quorum. Ref Paul Semwogerere and Zachary olum Vs A.G
CONSTITUTIONAL PETION NO.3 OF 1999 or substantive.

Article 92 of the 1995 Ugandan Constitution states that parliament

shall not pass any law to alter the decision or judgment of any court law
between the parties to the decision or judgments
 It must be noted that some of these limitations exist as permitted by
sovereign and may as such be removed and may as such be removed as was
evidence under the constitutional Amendment Act of 2000. Other appear like
the non-violation of human rights appears unchangeable given international
Conventions that bind Uganda

Other limits to the power of parliament as sovereign include the

requirement of presidential assent to laws passed by parliament and the
effect of his refusal to give assent, by the presidential power to dissolve
parliament may be challenged in the courts of law and overturned.

The positivists that the sovereign is under no direction from outside force, is
also rendered irrelevant its globalization is factored in. Despite its
Sovereignty, Uganda is a subject to the number of regional and international
legal instrument. The various international treaties and Convention it has
ratified therefore bind it. Economic Union such as EAC, COMESA, etc.
Similarly influence the country‘s law making process.

The positivists idea of sanctions backed law is partly related in Uganda

especially as regards our criminal law with the exception of the offence of
Contempt of Court its provided that no person shall be charged with an
offence unless such offence is written down and its sanction prescribed by
law. The Penal Code lays down the Offence and their Punishment this meets
the positivist’s concept that law must be posited

Inspire of the above it must be noted that a number of laws in Uganda are
not backed up by sanctions for example the administrative laws, Rules of
Procedures of Court, the laws of Evidence and the Bill of rights in the
Constitution are not backed by sanctions. Yet they effective in providing for
what they are intended to achieve. To this end therefore the positivists’ view
is rendered irrelevant to the Ugandan situation

Positivists argue that the law is backed by sanctions and it’s the fear of this
sanction that prompts the other people to obey. It should be noted that all
the people in Uganda don’t abide by the law only because of the fear of the
sanction, this is evident from the fact that some laws are broken even those
carrying very high sentences like the death penalty these sanctions
notwithstanding.

Positivists also propound that the law is the command of the sovereign this
is to some extent irrelevant to Uganda since a number of their Laws are
posited. Mayinda DCJ in Salvatori Abuki Vs A.G (1998) supported this
command thesis when he noted that however abstracts the witch craft Act
was, it must be upheld as a law this view was manifested from the Amin era
when Uganda was administered through Decrees and legal Notice.

However now that this era is no more the situation has changed and not only
the constitution grants the people Sovereignty but there are laws that are
not commands or command driven. Indeed, the Judicature Act and article
126 of the constitution permit courts to apply rules of Customs in their
adjudication in the cases.

The customs are not commands of the sovereign as people develop them
over time and they become binding as long as they are not repugnant to the
constitution. An example is when customary law is relevant is in land tenure
matters under the land Act 1998, the customary marriage act and the
local council (judicial power) Act

In Uganda the constitutional court has in certain instances made declaratory

decisions. These Judgment has in most instances stated or re-stated the law.
This clearly Judge made law, which is not given by the sovereign as a
command thus rendering the positivists preposition.

The way courts have handled the law in some instances favors the positivists
preposition and sometimes goes against it for stance the in some cases the
judges have looked at social order rather than the law as it is to determine
cases before them for example Tsekoko J.S.C in Besigye Vs Y.K and
Electoral Commission, Presidential petition No.1 of 2001, Stated that he
had to consider the social order and history of Uganda in determining
whether to annul the election or not. In the same case the court went ahead
to uphold the election arguing that the malpractice alleged by the petitioner
were not substantial as required by the presidential and parliamentary
Election Act.

Again Kanyeihamba JSC in Tinyefuza Vs A.G, Constitutional Petition No

1 of 1996 stated that much as Justice is to be attained it must with. To him
Codified laws in the form of statute and the constitution represented this
order. This view was later reflected in Kizza Besigye Vs YK
Museveni,Election Petition No 1 of 2016.

AUSTIN COMMAND THEORY

Austin defined law as an action of command from the sovereign with

sanction for those which disobeyed it.
Characteristics of command theory.

 Sovereignity
 Command
 Duty
 Sanction.

In conclusion, Austin excluded some commands from the concept of law like
explanatory law or repealed law.

CRITICISM OF AUSTIN’S COMMAND THEORY.

 It doesn’t address into law.

 Disregards morality.
 It operates outside its social setting.
 Law is not always from the sovereign because we believe in law like
customs.
 Criticized on the basis that not all laws have sanctions backing them.

ANALYTICAL THEORY.

This is by different ancient positivists and the major proponents are Austin,
Salmonds and HLA Hart.

Analytical school consider that the important aspect of law is its relation to
the state law as its imperative.

Analytical school separates both morals and religion from the definition of
law.

ELEMENTS OF ANALYTICAL THEORY.

 Analysis of the concept of Civil law. This was emphasized by Salmonds.

 An inquiry into the scientific arrangement of law. It is emphasized by

Gray.

 Study of the theory of liability. It is emphasized by HLA Hart.

  Study of the legal rights and liabities.

 Study of the concept of legal rights and duties.

CRITICISM TO THE ANALYTICAL SCHOOL.

 They ignored custom because custom is important aspect of the

society.

 Ignored the doctrine of precedent in theory though prec4edent formed

part of common law.

 Ignored the role of conventions though such conventions form part of

the law eg. ICCPR.

 Ignored international law since it does not come from the sovereign
and that they don’t believe in universality of laws..

 Their theory is not sustainable.

 Ignored the moral concept.

KELSENS THEORY OF LAW / PURE THEORY OF LAW

Introduction
Who is Hans Kelsen ?

Hans Kelsen the Austrian jurist was born at Prague in 1881 but moved to
Vienna with his family at the age of 2 years and was Professor of Law at the
Vienna University.

He was the author of the 1920 Austrian constitution which to a very large
degree is still valid today.

He was also a judge of the Supreme Constitutional Court of Austria between

1920-1930.

He worked in Germany until the rise of the Nazi Party, and then
subsequently, he came to England and in 1940 he moved to United States
and became Professor of Law in several American Universities.

Hans’s kelsen was a normative positivist who sought to provide an analysis

of the law in its structural and typical form excluding elements foreign to it
such as morality, justice and sociology.

Kelsen firmly believed that if the law is to be considered as a unique

normative practice, methodological reductionism should be avoided entirely.
Reductionism should be avoided because the law is a unique phenomenon,
quite separate from morality and nature.

The theory is ‘pure’ because it separates jurisprudence from other

disciplines like ethics, politics and psychology. He strongly
urgued that in order to distinguish law from other social phenomenon, one
has to exclude all other extraneous factors such as morality, politics,
psychology, among other factors. He argues that values are subjective and
can only be judged by emotions but cannot be scientifically verified. On the
other hand, he also argued that law opposed to morality is objective and is
subject to empirical proof. Thus according to him, morality should not in any
way be used in studying what the law is.

Therefore the pure theory of law was aimed at freeing the science of law
from other alien element which is not strictly to the law.

PURE THEORY OF LAW

Pure theory law asserts that law should be “pure,” that is, free of extra-
legal influences of any type. It states that the concept that an acceptable
theory of law should be “pure” i.e. devoid from political, morality, religion
and ethics.

According to Kelsen, the pure theory of law is so named because it

exclusively describes the law and strives to exclude anything that isn’t
precisely legal from the object of this description.

Its goal or rationale is to free legal science of alien components to purge

law of all impure or foreign aspects, leaving material that is purely legal.
From a legal standpoint, the law is a standard, not an actuality.

Kelsen believed that his hypothesis is pure since it distinguishes between

morals and law. However some critic it that Kelsen’s pure legal theory does
not represent the realities of real-world legal systems.

According to Kelsen, a “pure theory of law” is one that is entirely concerned

with the part of knowledge that deals with law, including everything that
does not technically belong to the subject matter of law.

According to Kelsen, a theory of law must deal with the law as it is written,
not as it should be and should be consistent.

The pure theory of law also suggests a revolution in law.

MAIN FEATURES/KEY ELEMENTS OF KELSEN THEORY

1. Law as a normative science.

It looks at norms, the hierarchy of norms, grand norms and the validity of
norms in the jurisdiction.
This suggests that the law is prescriptive and not descriptive.

David Humes suggests that one cannot derive a normative conclusion from
purely factual premises. This means that the law must be coming from the
norms.

A norm is a regulation which sets out how people ought to behave.

Norms are believed to be coming from acts of legislation, customs and

common law.

According to Kelsen, the validity of all norms is got from grand norm
constitution forexample Article 2(2) of the 1995 Constitution of Uganda.

2. Grundnorm
It is the structure upon which other all norms get there validity from.

According to Kelsen , grand norm is only a grand norm in the positive sense
but not in the legal logical sense.

Kelsen further believes that the grand norm does not get its validity from
another norm or any superior norm but gets its validity from the idea or spirit
behind it.

4. Pure Science.

Kelsen believes that since there is gradual process of carrying out with such
norms which require pure science i.e conscious, knowledge and

Interpretation.

Kelsen also believes that even that international law are products of the
norms.
He further illustrates that the law does not only prescribe certain types of
conduct but couples it sanctions.

It is based on the theme that legal norms are nothing without sanctions.

5. Sanctions
Kelsen uses sanctions to emphasis the law’s coercive aspect. Because it
brings a psychological aspect into a theory of law, Kelsen rejects Austin’s
interpretation of sanction, which views it as a mandate from the Sovereign.

As a result, he favors Grundnorm, which gives legislation legitimacy. Its

authoritative character lends credibility to any legal system.

The Grund norm’s sanctioning authority makes it applicable to all other laws.

According to Kelsen’s study of the sanctioned view of the law, legal norms
are articulated in the form that if a person does not follow a certain ban, the
courts must impose a punishment, whether criminal or civil.

KELSEN’S REVOLUTIONARY IDEA.

The revolutionary idea of Kelsen maybe either peaceful or forceful.

Kelsen believes that a revolution occurs whenever the legal order of a

community is nullified and replaced with a new order (in an illegitimate way).

In a Nigerian case of State vs Dosco & Anor, it was held that a

revolution comes into being by an illegitimate way. This was the first
constitutional case after the promulgation of the constitution of Pakistan of
1956 and an important case in Pakistan’s political history. The case got
prominence as it indirectly questioned the first martial law imposed by basis
and validity from the constitution.

Kelsen believes that failure to overthrow the existing order is treasonable

while success is law creating.

In the case of Uganda vs Commissionewr of Prison, Ex parte Micheal

Matovu,(1966)1 EA 514,A decision of the High court of Uganda in which
Kelsen’s Pure theory of law and state was considered in determining the
legal validity of Uganda’s 1966 Constitution.

IMPLICATION OF THE PURE THEORY OF LAW

No difference between Law and the State

Kelsen rejects the sovereign’s existence as a distinct entity. He also disputes
the existence of the state as a separate entity from the law. In its ideal form,
the state would be neither more nor lesser than the law, an object of
normative juristic knowledge. A system of normative connections is referred
to as a law. All legal personality is created artificially and derives its
legitimacy from a higher standard.

According to Kelsen, the idea of a person is nothing more than a phase in the
concretization process.

No difference between public and private law

The contrast between public and private law is another important

characteristic of the hierarchical organization of law.

According to Kelsen, because every law gets its force from the same
Grundnorm, there is no distinction between public and private law.

No difference between Natural and legal personalities

Kelsen does not distinguish between natural and legal beings. There is no
distinction between physical and legal beings.

In law, he defines ‘personality’ as an individual who is able to bear rights and

obligations. All legal personalities are fictitious and derive their validity from
superior norms.

No Individual rights

Individual rights, according to Kelsen, do not exist in law.

The ‘essence of law’ is legal obligations. Law is always a necessary system in

a state. He believes that the notion of right is not fundamental to a legal
system.

A legal right is just a responsibility as regarded by the person who has the
authority to demand that it should be fulfilled.

THE CONTINUED APPLICABILITY OF THE KELSENIAN THEORY OF LAW

IN UGANDA:

The question of the continued applicability of the Kelsenian theory in

Uganda is debatable since the promulgation of the 1995 constitution. For
instance, under Article 3(1), a person(s) is prohibited to take or retain the
Government of Uganda except as provided by this constitution, and (2)
provides for an offence of treason to a person who unlawfully violates,
suspends, overthrows, abrogates or amends the constitution, This Article
tends to outlaw the Kelsenian doctrine of revolution in law. However, this is
still theoretical. The practicability of Article 3 is still in doubt if the trends of
courts in Uganda are to be analyzed. In the previous cases, courts have been
reluctant to declare that a sitting government is illegal as was in the case of
Besigye Election Petition cases of 2001 and 2006. Article 3(3) states
that it is not possible to abrogate the constitution which is not true. The true
extent of this provision is not clear, as it has not yet been judiciously tested
in courts of law. This leaves its applicability in doubt. The practicability of
Article 3 is challengeable because any group that takes power will validate
its position as was seen in the case of the Attorney General of Fiji v.
Chandrika Prasad court of appeal(2001) ,where the judge held that the
revocation of the 1997 constitution was not made within the doctrine of
necessity and such revocation was unconstitutional and of no effect since the
1997 constitution is the supreme and extant law of Fiji today. Therefore, it
can be noted that attempts were made to use Article 3 as a means to
address the Kelsen theory. For instance; in the case of Dr. Rwanyarare and
Another V. Attorney General Constitutional petition No. 16 of 1996, the
constitutional court observed that the Article 3 may have been put there in
light of our sad and nasty past experiences of coup de’tats and other forms
of illegal assumption of power by the previous leaders of the nation

In Uganda, the presumptions of Kelsen’s pure theory of law were first tested
in the case of Uganda v. Commissioner of Prisons, Ex Parte Michael
Matovu, a decision of the High Court of Uganda in which Hans Kelsen's
"Pure Theory of Law and State" was considered in determining the legal
validity of Uganda's 1966 Constitution. Court rejected the submission that
the validity of the 1966 Constitution was a political question, and heard an
alternative argument that incorporated Hans Kelsen’s theory on how change
in a state's basic norm may effectively create a new and valid legal order to
replace the state's former legal order, thereby creating a new binding legal
regime.

The Court concluded that the Kelsenian principle was equally applicable in
the case of Uganda and held that the 1966 Constitution was thus valid
because it was the product of a successful revolution which had led to a new
legal order, ousting that of the 1962 Constitution.
The fact that the Constitution of Uganda may very well be amended
indicates that it is possible to deviate from the Constitution’s authority. If a
constitutional clause is significantly changed, the laws that fall under it lose
their legality as provided under Article 2.

The notion of basic structure was highlighted in the case of Mariam Adekur
v James Opanja & others HCCS no.23 of 2016, where the court held that the
validity of the any Law in Uganda derive their validity from the constitution.

Thus court observed that the any custom that is inconsistent with the
provision of the constitution is void.

This was further Lugemwa Stephen V Busulwa Lawrence HCCS No 14 of

2017, The court held that the custom that denies the women an opportunity
to pass the property to their children on the account of being married in
another clan is not only discriminatory but also unconstitutional and cannot
be allowed to stand since it is against the spirit of Article 2 of Constitution.

The theory presumes every legal system is a hierarchical structure. In Kelsen

view, the norm of any legal system is always organized in a hierarchy and
interconnected. Each norm in the legal system derives from a higher or
superior norm in the system in a hierarchical manner. In other words, a norm
derives its validity from a superior or higher norm on the hierarchy of norms.
The inter-connection continues throughout the system and finally terminates
at the basic norm otherwise known as the grundnorm. The grundnorm is the
ultimate source of validity of all the other norms in the legal system. The
grand norm is not Just the Constitution but also the presumption that the
Constitutional order ought to be obeyed. In Uganda we have the 1995
Constitution as grundnorm, it must be obeyed and all other laws derive their
validity from it. For example Acts of parliament are deriving validity from
constitution and from the Acts we have Regulations and Ordinances all
deriving basis and validity from the constitution. Any law not originating from
the constitution in Uganda is invalid and can be challenged in the
constitutional court.

Kelsen held the view that every legal system/system of norms rests on some
type of sanctions. To Kelsen, the purpose of the legal system is to induce
human beings to behave in the desired way, using the threat of sanction or
coercion. Threat of sanctions command obedience to the law according to
Kelsen. A legal norm is addressed to the Judge and instructs him to impose a
sanction (Whether criminal or civil) whenever a violation has been
committed. Hence the norm: if a breaches a contract, he ought to pay
damages in the event of the specified breach of contract. Thus, sanctions are
a key characteristic of law not because of any supposed psychological
effectiveness but because they stipulate that coercion ought to be applied by
officials where violations are committed. Kelsen bases this view on the
historical facts that there has never been a large community which was not
based on a coercive order. In Uganda legal sanctions come in form of
damages, compensation, incarceration, fines for breach or violation of legal
orders and these are issued by judges in competent courts of law after due
process.

Kelsen presumed effectiveness and validity of norms (Laws). Effectiveness

means a norm is applied by legal organ and obeyed by subjects. Validity
means in addition to application and obedience, the norm ought to be
obeyed and is enforceable. A legal order as a whole does not lose validity
because a single norm losses effectiveness. To Kelsen, a norm is valid if it
ought to be obeyed, and it ought to be obeyed if it was created as prescribed
by the presupposed basic norm (Grundnorm). Accordingly a law, which is not
practical and not observed, losses its validity. He argues ounce the grand
norm seizes to deliver or command minimum of support for instance if it is
overthrown, it seizes to be operative as a basis of legal order. Any other laws
which gain support will replace it. This Kelsen termed as “Revolution in Law.

The doctrine of the “revolution law” is perhaps Kelsen’s most important

proposal. It is applicable where there’s an illegal change tolegal order and
the change is successful. The mode of change must not be contemplated by
the Constitution and the new Legal Order it creates must be effective and
acceptable by the people (masses). The effect of the revolution is the
distortion of the existing constitution and the invalidation of the legal order
14. In 1971 when Amin over threw Milton Obote’s government he suspended
the constitution and ruled by decrees this was equivalent to “revolution law”
hypothesized by Kelsen. Whereas these presumptions are discussed
separately, it should be noted that Kelsen implied they work in tandem for
the theory to be actualized. In other words pure science of law means the
constitution should also be free from extra- legal biases and when a
revolution happens the new laws must have hierarchy, sanctions and be
effective and valid.

According to Kelsen Effectiveness means a norm is applied by legal organ

and obeyed by subjects. Validity means in addition to application and
obedience, the norm ought to be obeyed and is enforceable. A legal order as
a whole does not lose validity because a single norm losses effectiveness. To
Kelsen, a norm is valid if it ought to be obeyed, and it ought to be obeyed if it
was created as prescribed by the presupposed basic norm (Grundnorm).
Accordingly a law, which is not practical and not observed, losses its validity.
He argues ounce the grand norm seizes to deliver or command minimum of
support for instance if it is overthrown, it seizes to be operative as a basis of
legal order. Any other laws which gain support will replace it. This Kelsen
termed as “Revolution in Law.

CRITICISM OF KELSEN’ PURE THEORY OF LAW

Kelsen’s pure theory was criticized for not explaining what amounts to
effectiveness because he stated that the effectiveness of a grundnorm is
based on the recognition by a number of persons willing to obey the law and
that if the grundnorm ceases to have the support of the people, it loses its
effectiveness. He does not give any guidelines on the criteria by which
minimum effectiveness may be measured and therefore, the concept of an
effective legal order is vague.

The theory also suggested that law must be pure and not compromised by
extra-legal values. Taking his presumptions in tandem this means the
Grundnorm must be pure and ought to be obeyed, yet the law is anchored in
society and constitutions of nations normally reflects the social, political,
spiritual and economic aspirations of the people and therefore not pure . The
constitution acknowledges customary laws for example and this has its roots
in sociological concept of culture. In the Ugandan case of Bruno Kiwuuwa v
Ivan Sserunkuma and Juliet Namazzi HCC NO 234 OF 2012, the issue to
be determined was customary and an affirmation that Uganda’s legal regime
is not alien or free from extra- legal values. In the same vein law regulates
national elections an aspect that has connotation to political science and
leadership disciplines.

The theory was also criticized as being too readily rewarding to a usurper.
This was seen in the case of Prof. Wole Soyinka v. Abacha and others
where the legality of Abacha’s regime was challenged and his assumption of
office as head of state of Nigeria on 17th November 1993. Justice Belgone
held that Abacha’s government was a product of a revolution.
The Kelsenian doctrine was also rejected in favor of the doctrine of State
Necessity. For the doctrine of state of necessity to be apply in the case of
Mitchel v Dpp,it was held the following must exist;

a) An imperative necessity must be because of the existence of exceptional

circumstances not provided for in the constitution

b) There must be no other course of action reasonable available such action

must be reasonably necessary in the interest of peace, order and good
government

c) The actions must not impair the rights of the citizens. It should not be one
the sole effect of which is to consolidate or strengthen the revolution as
such. This was observed in the Pakistani case of Asma Jilani v. The
Government of Punjab (1986), where court stated that it could not uphold
the coercive power of state and that people and the courts are only silenced
temporarily and the order so imposed is illegal, and court cannot recognize
it.

Court rejected Kelsen’s theory on grounds that it would adventurous persons

to overthrow legitimate government. Kelsenian theory is rejected because he
argued that law should be kept free from ethics/morality. Ethics falls under a
branch of philosophy known as moral philosophy. Kelsen by insisting on the
law to should effective and have sanctions indirectly accepted ethics as part
of effectiveness. This is reflected in the case of Begum, Nusrat Bhutto v.
Chief of Army Staff (1977) SC 657, where the theory was rejected on
grounds of being devoid of moral or just considerations. Court stated that a
theory of law that seeks to exclude morality and justice would not be used in
the making of decisions of the courts of Pakistan.

Conclusion

Kelsen gave the legal theory a new dimension by forcing us to consider the
distinction, as well as the relationship, between fact and norm, between
legislation and its normative impact. Kelsen proposed an internally
consistent model of the judicial process that, in some ways, mirrors
attorneys’ and legislators’ intuitive reasoning. It is standard legal logic to
trace a law’s legality back to the constitution. The notion that valid laws
constitute an internally coherent system of laws is also flawed.