POLITICS OF JURISPRUDENCE.
Loise Githinji 20S01ALLB002
Tracy Gitonga 20S01ALLB060
Phyllis Juma 20S01ALLB033
Doreen Kaguru 20S01ALLB012
Doris Kambura 21J01ALLB076
Natural theory of
proceeds from a basis
that the law is a
based on the moral
perceptions of a
Development of natural law
The arguments of natural law developed in different
periods from classical natural law to the modern natural
2.Middle age/ Medieval period (Christian period)
3.Renaissance period (Social Contract) / Modern
*The doctrine of social contract by John Locke.
Natural law was defined by the ancient Greeks and
ancient Romans and each philosopher tried to defined
natural law in their own perspective as well as developing
that of others.
While Socrates examined law as a product of correct
reasoning, Aristotle viewed it as a universal and
immutable standard discoverable through reasoning and
that any man-made laws should be made in conformity to
the standards. Aristotle was very particular in creating a
distinction between law and nature by stating that law
itself would vary from one place to another since it is
man-made but what is given by nature is universal and
therefore should be the same in every place. This
therefore brought the notion that what was ‘just by nature’
was not always what was ‘just by law’.
Plato did not go far from the reasoning given by Aristotle and brought forward
the fact that justice could only be discoverable through reason. He argued that
justice is a harmony of man’s inner life and can easily be achieved by reason of
men. Stoics was influenced by Strauss Leo, “Natural Law”, International
Encyclopedia for Social Sciences. McMillan Publishers, (London, 1968)
Plato’s reasoning and the opinion was man is part of the universe that is
actually governed by reason. This therefore meant that it is through the reason
that man is lead to live according to nature. Stoics also believed that God was
everywhere and in everyone hence within human there is the reason that helps
them to live according to nature
A different route was taken by the philosophers from
what was given in the classical period. Here, emphasis was
not made on reason and what is just and fair but was made on
religion and faith. Religion during this period was the
aspiration and contributed to almost all areas of life. St
Augustine as well as St Thomas Aquinas made major
contributions during this period. St Augustine majorly based
his argument on the fact that the higher standard governing
the law and man was religious is nature and that religion was
paramount. He also emphasized on the need for humans to
gain salvation through divine law.
Thomas Aquinas on the other hand applied the teachings
of reason given by the ancient Greeks as well as incorporated
the Catholic teachings. According to him unjust law does not
deserve obedience and man could only apply reason and
scriptures with the revelation of God to be able to find
natural law. He defines law in four different types but all the
other three depend on the eternal law.
Eternal law is only known to God alone as it is His reason understood by Him
alone and is eternal in nature. Divine law on the other hand is law promulgated
by God but is revealed to men by God through scripture so as it is known to them
naturally. Part of divine law understood by men through reason was termed as
natural law. One of the principles of natural that he gave was that ‘good is to be
done and pursued and evil avoided’. Human law on the other hand was termed as
the man-made laws which rely on natural law as humans make the laws relying
on reason. According to Aquinas, human laws are valid in so far are its contents
conform to the content of natural law. He also points out that human laws must
be particular application of natural law.
William Blackstone articulated claims that constitute the theoretical core of
-there can be no legally valid standards that conflict with natural law
-all valid laws derive what force and authority they have from natural law
This period saw the revival of the thinking that had been
fostered before by the Ancient Greeks and Romans
leaning on them more than the scripture-based thinking.
They look at the purpose of human life to be able to get
natural law. This period was termed as the age of
enlightenment, where most of the philosophers’ theories
went away from the religious point of view. The period
also saw the shift of thoughts from natural law to natural
rights. The philosophers during this period sought to
improve the conditions of humans and not concern
themselves with religion hence they valued reason as
well as the natural rights important to individuals.
Hugo Grotius asserted to the fact that natural
characteristics of human beings is impulsive to living in
peace and harmony with others, he went forth to define
natural law as a dictate of rights and that by their very
nature, they are authoritative and therefore do not rely on
faith in God since the moral ethics of natural law apply to
all social, rational beings whether they are Christian or
Thomas Hobbes brought the new concept of social contract and defined
natural law as a way in which a rational person seeking to survive and seek
happiness would act. He borrowed the social contract from English contract law
and implied that people would agree among themselves and to lay down their
freedom and equality and give absolute power to a sovereign. The sovereign
chosen by the people could be an individual or a group with the authority to
make and enforce laws to bring about a peaceful society. This system according
to him would bring about consistency in exercising of authority by the sovereign.
He however emphasized on the need to have a clear distinction between the
church and the government so as to avoid occurrence of civil war.
John Locke brought out the notion that people are in a state of nature. He
defended the claim that men are free and equal by nature against the claim that
God placed all people under one monarch. Being in a state of nature, people are
able to determine their action and act as per their own will. It is due to this that
he asserts that people have rights such as liberty which have their foundations
independent of laws of particular nations but natural law. he argues that these
rights cannot be taken away or be given voluntary to anyone by individuals. He
also brought the issue of social contract but unlike Hobbes, he spoke of it to be
an agreement between the people and a sovereign and not an agreement among
the people. He however agreed that the sovereign had power limited by the
natural rights as the sovereign’s work was to protect and enforce the natural
rights of the people.
Jean Rousseau on the other hand argued that a good government must have the
freedom of all its citizens as its fundamental objective. According to him, social
contract unlike it was brought out by the other philosophers is not a willing
agreement but fraud against the people committed by the rich. He however brings a
solution for people entering social contract such that the people should not give up
their rights to the sovereign but to the ‘whole community’. He therefore averred to
the fact that the people are the sovereign and not the leader they chose.
The social contract as brought by Rousseau has been adopted largely by modern
democracies and is seen in for example the constitution of Kenya. The preamble of
the Constitution of Kenya provides that ‘We the people of Kenya, exercising our
sovereign and inalienable right to determine the form of governance of our country
and having participated fully in the making of this Constitution adopt, enact and give
this Constitution to ourselves and to our future generations.” This shows that the
people have the sovereign power and exercise it by their own will.
Positivism postulates that our knowledge of matter is derived only from what we have
experience of. That; knowledge is based on things that have been tested and verified by the
senses rather than metaphysical speculation or idealism.
Emphasis is placed on the analysis of legal concepts in the search of applicable rules
and moral judgements are denied based on the argument that the latter cannot be based on
observation and rational proof.
John Austin relies on the aforementioned to justify his argument for the separation of
law from moral concerns. He called for the separation of positive law which he took to be
the “command of or directive of by superior authority (sovereign) laid down or posited
from any moral ethical concerns. This has often been referred to as the separability thesis.
According to this school of thought, the legal ‘is’ is all that counts and the
‘ought’ is of no consequence.
The test of legal validity is therefore a given norm as it is and not its moral or
ethical contents and qualifications. The fact that a law that commands what is
ethically wrong or forbids what is ethically right is still a valid law. That; in
determining what is law; regard should not be paid to its moral fairness, justness
or moral quality.
John Austin puts it as thus, “The existence of law is one thing; its merit or
demerit is another.” Whether it be or be not is one enquiry; whether it be or be
not conformable to an assumed standard, is a different enquiry. A law, which
actually exists, is a law, though we happen to dislike it, or though it varies from
the text, by which we regulate our approbation and disapprobation
Themes of legal positivism
Law is the creation of human agents.
The law as it is can be distinguished from notions of what the law ought to be. Law is social fact.
There are good practical reasons for distinguishing the law as it is from what the law ought to be
It is possible to identify a set of formal criteria by which we may determine whether or not a rule is a law
There is no necessary connection between law and morality, though many laws are based on moral
That the analysis of legal concepts is (i) worth pursuing, (ii) distinct from (though not hostile to)
sociological and historical enquiries and critical evaluation.
That a legal system is a ‘closed logical system’ in which correct decisions may be deduced from
predetermined legal rules by logical means alone - without reference to social aims, policies or moral
The sociological approach to jurisprudence suggests that law is a social phenomenon
reflecting human needs, functioning as an organised system, and embodying within it
fundamental principles and substantive rules of a society’s basic values.
The appropriate methodology of jurists who favour this approach is based on a
systematic analysis of the structure, functions and values of legal systems.
Jhering was a ‘social utilitarian’ who believed that the essence of law could be
expressed by reference to its very purpose, which was social. Law existed to protect the
interests of individuals and society by balancing and coordinating interests.
‘At the present as well as at any other time, the centre of gravity of legal
development lies not in legislation, nor in juristic science, nor in judicial
decision, but in society itself’: Ehrlich's (Fundamental Principles of the Sociology
of Law (1912)).
Ehrlich (1862–1922) differentiated ‘norms for decision’ (formal laws and other
regulations) from ‘norms of conduct’ (self-generating social rules). The norms of
conduct are often in contrast to the rules enforced by the State and constitute
the ‘living law’, which reflects the true values of society.
A vital task for legislators, judges and jurists is to discover the ‘living law’; this
involves studying much extra-legal data when investigating a legal problem.
The province of jurisprudence must be ‘boundless’ because the facts of the
‘living law’ are the facts of social life in its entirety.
Durkheim saw social cohesion (‘social solidarity’) as fundamental to society.
Mechanical solidarity which mostly existed in societies in which there was an
absence of the division of labour was contrasted with ‘organic solidarity which
reflected the functional interdependence of producers.
Law could be perceived as an external index to the type of society in which it
flourished. A strict, repressive law was characteristic of societies dominated by a
mechanical solidarity; a more flexible legal structure characterised societies in
which organic solidarity prevailed.
Law symbolises society’s morality. That which assists in the creation and
maintenance of social solidarity is ‘moral’, and the morality of society is as
strong as the ties existing among its members. ‘Everything which forces man to
take account of other men is moral.’ Law and morality cannot be divorced.
Weber viewed the essence of ‘social order’ in terms of norms and the power to enforce them.
The exercise of power within a society involves an acceptance by its members of ‘legitimate
Weber enumerates three types of ‘legitimate authority’
Weber analysed procedures within legal systems and produced the following classification:
• Substantively irrational systems—ad hoc and intuitive decisions predominate.
• Formally irrational systems—decisions result from tests such as ordeals which are beyond
control of the human mind.
• Substantively rational systems—morality and law are combined totally, as in a theocracy.
• Formally rational systems—attempts are made to apply logically consistent principles to the
solution of a wide type of legal problem
Pound defined an interest as a demand or desire or expectation which human
beings either individually or in groups or associations or relations, seek to satisfy,
of which, therefore, the adjustment of human relations and ordering of human
behaviour through the force of a politically organised society must take account.
A principal task for legislators, judges and jurists is the balancing of individual,
public and social interests.
Individual interests comprise: personality; domestic relations; substance
interests of property
Jeremy Bentham and John Stuart Mill, were
growing band of sceptical non-believers who called
themselves the classical utilitarians. They both agreed
In nature things and actions either cause pleasure or
Pleasure is good and pain is bad
The utility (usefulness) of an action or thing is to be
judges solely on the basis of whether it
maximizes pleasure (happiness).
An action or thing should either directly or indirectly
lead to pleasure or happiness of the
maximum number of people.
In a nutshell, the concept of Utilitarianism is that the law is not just a device; it
serves a purpose (liability). Utility or purpose is the maximum happiness for the
maximum number of people. John Broome puts that Utilitarianism contains a theory
of good and a theory of rights. It is a characteristic of the utilitarian theory that
rightness is derived from goodness. Utilitarians (adherents of Utilitarianism) based
goodness and rightness on human experience. For people, what is good is produced by
happiness, welfare, contentment, or pleasure, and what is right is what maximizes
these outcomes. He establishes 2 theories:
What is good must be right
What is right must be for the maximum happiness.
Evidently, there is a connection between the two theories.
Francis Hutcheson was an ulster protestant who studied at the University of
Glasgow where he read the works of Bishop George Berkeley. Hutcheson notes that
Berkeley argued that Human experiences give rise to either Pain or Pleasure.
He is regarded as the founding father of classical Utilitarianism. Bentham called
himself a non-theist. Like his friend, James Mill (father of John Stuart Mill) they
both rejected the term ‘atheist’ because it is impossible for any human being to
know whether God exists or not. Therefore, because Bentham is a non-theist, he
rejected morality based on divine authority. He believed there is one single basis
for ethics and that is Nature. While he said, nature of man replaces God as the
sole higher authority to which human beings must turn in order to understand
themselves, the world and moral life, Bentham wrote that nature has placed
mankind under the governance of 2 Sovereign Masters which are basically Pain
John Stuart Mill.
He defines utilitarianism as a theory based on the principle that "actions are
right in proportion as they tend to promote happiness, wrong as they tend to
produce the reverse of happiness." Mill defines happiness as pleasure and the
absence of pain. He argues that pleasure can differ in quality and quantity, and
that pleasures that are rooted in one's higher faculties should be weighted more
heavily than baser pleasures. Furthermore, Mill argues that people's achievement
of goals and ends, such as virtuous living, should be counted as part of their
happiness. He argues that utilitarianism coincides with "natural" sentiments that
originate from humans' social nature. Therefore, if society were to embrace
utilitarianism as an ethic, people would naturally internalize these standards as
It is a group of interconnected ideas on international relations
that place an emphasis on the state, national interests, and power
in international affairs.
Since the end of World War II, realism has dominated the
academic study of international affairs. Realists assert that they
provide the most accurate explanation of state behavior as well
as a set of policy recommendations (particularly the distribution
of power among nations) for reducing the naturally unstable
aspects of international relations. Realists, including Neorealist,
concentrate on enduring patterns of interaction in a world
without a single political power.
Niccol Machiavelli concentrated on how fundamental human
traits affect the security of the state in this regard.
Also, the majority of leaders at the time were men, which has an
impact on the realist view of politics. Machiavelli emphasized that a
leader's first priority should be to advance national security in The
Prince (1532). The leader must be both a lion and a fox to accomplish
this role successfully. He must be vigilant and able to deal with both
internal and external threats to his rule. Might (the Lion) and deceit
(the Fox) are essential instruments for pursuing foreign policy.
After the Second World War, Hans Morgenthau (1948) worked to create a
comprehensive international theory because he thought that human nature-based
rules regulate politics and society as a whole. His work primarily drew on the
observations of historical giants like Thucydides and Machiavelli. His goal was to
elucidate the relationship between interests and morals in international politics.
Morgenthau outlined a strategy that prioritized power over morality, in contrast to
more idealistically inclined idealists who anticipated that international issues would
be resolved by transparent negotiations characterized by goodwill.
Morality was in fact portrayed as something that should be avoided when
formulating policies. Every political activity, according to Morgenthau, is intended to
maintain, expand, or demonstrate power. It is believed that moral or idealistic-based
policies might make a state weak and even open it up to being destroyed or ruled by a
rival. In this view, promoting the national interest is "amoral" because it is exempt
from moral deliberations
Kenneth Waltz modernized IR theory in Theory of International Politics (1979)
by moving realism away from its unprovable (but seductive) assumptions about
human nature. His theoretical contribution was known as "structural realism" or
Waltz therefore proposed a version of realism that advised theorists to focus
on the features of the international system for solutions rather than delve into
human nature's shortcomings. By doing so, he launched a new phase of IR theory
that sought to apply social scientific techniques as opposed to philosophical or
political theory techniques. The distinction is that Waltz's variables—such as
international anarchy, a state's level of power, etc.—can be physically and
objectively measured. Human nature, for example, is an assumption based on
particular philosophical viewpoints that cannot be quantified similarly.
The school of thinking known as classical realism was not coherent. It presented
conflicting conceptions of the individual, the state, and the universe and drew on
a wide range of sources. Carl was influenced by Marxism, whereas Morgenthau
was influenced by American civic republicanism, Friedrich Nietzsche, Max
Weber, and Carl Schmitt. The major thing that brought classical realists
together was what they opposed. In contrast to liberal internationalists, who
were criticized for their optimism and explanatory ambition, classical realists
emphasized the multiple obstacles to growth and reform that were purportedly
inherent in human nature, political institutions, or the design of the international
system. The 1960s social-scientific behaviourism era saw a decline in the
popularity of classical realism, which had its roots in a blend of history,
philosophy, and theology. The rise of neorealism in the 1970s helped turn around
Realism theory, makes the case that it explains the reality of global politics. It
emphasizes the limitations on politics brought about by egoism in humans and
the absence of a supreme power over the state. Realists view the survival of the
state as the ultimate aim, which is why responsibility ethics rather than moral
principles are used to evaluate the conduct of states. A sizable body of writing
that critiques the core assumptions of realism has emerged as a result of its