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INTRODUCTION
Welcome back, students. In our previous lecture, we examined the fundamental concepts of law, the state, and sovereignty. We discussed how these three concepts are intertwined: the state creates and enforces law, law establishes and regulates state institutions, and sovereignty gives the state the authority to make and enforce law.
Today, we will delve deeper into the concept of law itself, focusing on different types or classifications of law based on their sources and philosophical foundations. These classifications provide a framework for understanding the diverse nature of legal systems across different societies and historical periods.
Law, as we noted in our previous discussion, has been defined differently by various legal philosophers. John Austin viewed it as a command backed by sanctions, Hans Kelsen saw it as a hierarchical system of norms, and H.L.A. Hart described it as a union of primary and secondary rules. Today, we will expand on these perspectives by examining three major types of law: Natural Law, Human or Positive Law, and Eternal Divine Law.
Understanding these classifications is crucial because they influence how we interpret legal principles, how legal systems develop, and how we address conflicts between different sources of law. Moreover, these classifications have profound implications for questions of justice, legitimacy, and the limits of legal authority—questions that are central to our ongoing discussion about sovereignty.
Let us begin by clarifying what we aim to achieve in this lecture.
OBJECTIVES
By the end of this lecture, you should be able to:
* Define and distinguish between Natural Law, Positive Law, and Divine Law
* Trace the historical development of these legal philosophies
* Identify key proponents of each type of law and their contributions
* Analyze the relationship between these types of law and the concept of sovereignty discussed in our previous lecture
* Evaluate the relevance of these classifications in contemporary legal systems
* Apply these concepts to understand tensions in modern legal discourse
* Critique the strengths and limitations of each approach to law
TYPES OF LAW: NATURAL LAW
Definition and Concept
Natural Law theory posits that there exists a universal, inherent moral order that is discoverable through human reason. According to this theory, law is not merely a human creation but is grounded in nature itself—particularly human nature and the natural order of things.
The core idea of Natural Law is that certain principles of right and wrong are inherent in the universe, independent of human legislation, and are accessible to human reason. These principles are considered to be objective, universal, and immutable.
Historical Development
Classical Natural Law
The concept of Natural Law has ancient origins:
Greek Philosophy: Aristotle distinguished between natural justice (that which is naturally right everywhere) and legal justice (that which is determined by law). In his "Nicomachean Ethics," he suggested that natural justice has the same validity everywhere and does not depend on acceptance.
Roman Jurisprudence: Cicero, in "De Republica," wrote: "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting... And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times."
Medieval Natural Law
The Natural Law tradition was further developed during the medieval period:
Thomas Aquinas (1225-1274) provided the most comprehensive integration of Natural Law philosophy in his "Summa Theologica." For Aquinas, Natural Law is that part of Eternal Divine Law which humans can discover through reason. It is based on the rational nature of humans and their natural inclination toward the good.
Aquinas identified several precepts of Natural Law:
1. Self-preservation
2. Procreation and care of offspring
3. Pursuit of knowledge, especially knowledge of God
4. Living in society
3.2.3 Modern Natural Law
In the modern era, Natural Law theory evolved further:
* **Hugo Grotius** (1583-1645) secularized Natural Law theory by suggesting that Natural Law would exist "even if we were to suppose that God does not exist or is not concerned with human affairs." His work laid the foundations for international law.
* **John Locke** (1632-1704) used Natural Law to argue for inalienable natural rights. His ideas influenced the American Declaration of Independence and many modern constitutions.
* **Martin Luther King Jr.** invoked Natural Law in his "Letter from Birmingham Jail" (1963), arguing that unjust laws are not true laws because they violate natural law principles.
### 3.3 Key Principles of Natural Law
The Natural Law tradition encompasses several key principles:
* **Universality**: Natural Law applies to all people in all places, regardless of cultural or historical context.
* **Immutability**: The principles of Natural Law do not change over time, though our understanding of them might evolve.
* **Accessibility through Reason**: Humans can discover Natural Law through rational reflection on human nature.
* **Moral Foundation**: Natural Law provides an objective basis for morality and serves as a standard by which human or positive laws can be judged.
### 3.4 Natural Law and Sovereignty
Recalling our discussion on sovereignty, Natural Law theory has significant implications for how we understand sovereign power:
* Natural Law sets moral limits on sovereignty. Even a sovereign authority cannot legitimately enact laws that violate Natural Law principles.
* In conflicts between positive law and Natural Law, proponents of Natural Law argue that the latter should prevail, thus challenging the concept of absolute legal sovereignty discussed in our previous lecture.
* The social contract theories we examined (Hobbes, Locke, Rousseau) can be seen as attempts to reconcile sovereignty with Natural Law principles.
### 3.5 Critique and Contemporary Relevance
Natural Law theory has faced several criticisms:
* **Subjectivity**: Critics argue that what proponents claim to be "natural" often reflects their cultural biases or personal values.
* **Lack of Consensus**: There is no universal agreement on the content of Natural Law, undermining its claim to objectivity.
* **Is-Ought Problem**: Deriving normative principles (what ought to be) from descriptive facts about human nature (what is) raises philosophical challenges.
Despite these criticisms, Natural Law remains influential in contemporary legal discourse:
* **Human Rights**: The concept of universal human rights is often grounded in Natural Law thinking.
* **Constitutional Interpretation**: Natural Law principles inform how judges interpret constitutional provisions, especially in cases involving fundamental rights.
* **International Law**: Natural Law ideas underpin many principles of international humanitarian law and universal jurisdiction for crimes against humanity.
## 4.0 HUMAN OR POSITIVE LAW
### 4.1 Definition and Concept
Positive Law refers to law that is posited, enacted, or established by a legitimate authority. Unlike Natural Law, which is considered inherent in nature, Positive Law is explicitly created by humans through legislation, judicial decisions, or customs that are formally recognized by authorities.
The term "positive" in this context comes from the Latin "positus," meaning "laid down" or "established." Positive Law is thus law that is "laid down" by a sovereign authority.
### 4.2 Historical Development
#### 4.2.1 Early Positivism
While the explicit articulation of legal positivism came later, the core idea—that law is a human creation rather than a discovery of natural principles—has ancient roots:
* **Sophists** in ancient Greece challenged the notion of natural justice, arguing that laws are merely human conventions.
* **Thomas Hobbes** (1588-1679), whom we discussed in relation to sovereignty, laid groundwork for legal positivism by defining law as the command of the sovereign, backed by threat of punishment.
#### 4.2.2 Classical Legal Positivism
Legal positivism emerged as a distinct philosophy in the 19th century:
* **John Austin** (1790-1859) developed the "command theory" of law, defining law as commands from a sovereign backed by sanctions. For Austin, the existence and content of law are matters of social fact, independent of moral considerations.
* **Jeremy Bentham** (1748-1832) distinguished between "law as it is" and "law as it ought to be," arguing that these are separate inquiries.
#### 4.2.3 Modern Legal Positivism
In the 20th century, legal positivism was refined:
* **Hans Kelsen** (1881-1973), whom we mentioned in our previous lecture, developed the "pure theory of law," which sought to describe law as a system of norms without reference to moral or political values.
* **H.L.A. Hart** (1907-1992) rejected Austin's simple command theory and proposed that legal systems are a union of primary rules (governing conduct) and secondary rules (governing how primary rules are recognized, changed, and adjudicated).
* **Joseph Raz** (1939-2022) developed the "authority thesis," arguing that law necessarily claims legitimate authority to tell people what they ought to do.
### 4.3 Key Principles of Positive Law
Legal positivism is characterized by several core principles:
* **Separation Thesis**: The existence and content of law are separate questions from its merit or demerit. A law can be valid even if unjust.
* **Social Fact Thesis**: What counts as law in any society is fundamentally a matter of social fact.
* **Sources Thesis**: The validity of law depends on its sources (how it was enacted, by whom, following what procedures), not its content.
* **Conventionality**: Law is a social convention, a human artifact rather than a natural phenomenon.
### 4.4 Positive Law and Sovereignty
Positive Law has a close relationship with the concept of sovereignty discussed in our previous lecture:
* The concept of legal sovereignty—the supreme law-making authority—is central to legal positivism, which focuses on who has the authority to make law.
* Austin's theory explicitly connects law to sovereign commands, reflecting the traditional view of sovereignty as absolute power.
* Hart's rule of recognition (the ultimate rule that determines what counts as law in a society) can be seen as describing how legal sovereignty operates in practice.
* The limitations on sovereignty we discussed (constitutional, international, and from globalization) reflect changing understandings of the sources and scope of positive law.
### 4.5 Types of Positive Law
Positive Law can be further classified into several categories:
#### 4.5.1 Based on Authority
* **Statutory Law**: Laws enacted by legislative bodies
* **Case Law or Judge-made Law**: Laws developed through judicial decisions
* **Administrative Law**: Regulations made by administrative agencies
* **Constitutional Law**: The supreme law that establishes the framework of government
#### 4.5.2 Based on Subject Matter
* **Criminal Law**: Deals with conduct deemed harmful to society
* **Civil Law**: Concerns private rights and remedies
* **Public Law**: Regulates relationships between individuals and the state
* **Private Law**: Governs relationships between individuals
#### 4.5.3 Based on Jurisdiction
* **Municipal Law**: Law applicable within a particular state
* **International Law**: Law governing relations between states
* **Transnational Law**: Law that transcends national boundaries but isn't strictly international
### 4.6 Critique and Contemporary Relevance
Legal positivism has faced several criticisms:
* **Moral Vacuity**: By separating law from morality, positivism may seem to deny the moral dimensions of law.
* **Nazi Law Problem**: The separation thesis has been challenged by the experience of Nazi Germany, where legally valid but morally repugnant laws were enacted.
* **Interpretive Challenges**: The "mechanical" view of law as simply what is enacted fails to account for the interpretive nature of legal practice.
Despite these criticisms, legal positivism remains influential:
* It provides a clear framework for identifying valid law based on social facts rather than contested moral principles.
* It acknowledges the human origin of law, allowing for critical assessment of legal systems.
* It recognizes the institutional nature of law and its connection to state authority.
## 5.0 ETERNAL DIVINE LAW
### 5.1 Definition and Concept
Eternal Divine Law refers to law that is believed to originate from a divine source—God or gods. This type of law is considered to be perfect, eternal, and unchanging, reflecting the divine wisdom and will.
According to this perspective, divine law is not created by humans but is revealed to them through sacred texts, prophets, or divine manifestations. It is considered to be the ultimate source of all law and morality.
### 5.2 Historical Development
#### 5.2.1 Ancient Religious Legal Systems
Divine law has been central to many ancient legal systems:
* **Ancient Near Eastern Legal Codes**: The Code of Hammurabi (c. 1754 BCE) claimed divine sanction, with Hammurabi portrayed as receiving the law from the god Shamash.
* **Jewish Law (Halakha)**: The Torah is believed to be divine law revealed to Moses on Mount Sinai, containing the Ten Commandments and other legal precepts.
* **Hindu Law (Dharmaśāstra)**: The Vedas and later texts like Manusmriti are considered to have divine origin and provide comprehensive legal codes.
#### 5.2.2 Medieval Religious Law
In the medieval period, divine law was systematized in various traditions:
* **Canon Law**: The law of the Catholic Church, derived from scripture, church councils, and papal decrees.
* **Islamic Law (Sharia)**: Based on the Quran (believed to be God's direct word) and the Sunnah (practices of Prophet Muhammad), developed through scholarly interpretation.
* **Aquinas's Synthesis**: Thomas Aquinas distinguished between four types of law: eternal law (God's plan for the universe), divine law (revealed in scripture), natural law (the part of eternal law discernible by human reason), and human law (positive law made by humans).
### 5.3 Key Principles of Divine Law
Divine Law is characterized by several distinctive features:
* **Divine Origin**: It is believed to come directly from God or gods rather than human legislators.
* **Perfection**: Being of divine origin, it is considered perfect and free from error.
* **Eternality**: It is unchanging across time, although interpretations may evolve.
* **Comprehensiveness**: Divine law often covers all aspects of life, not just legal matters but also moral, ritual, and spiritual dimensions.
* **Ultimate Authority**: Divine law is considered to have ultimate authority, superseding human law when conflicts arise.
### 5.4 Divine Law and Sovereignty
The concept of divine law has significant implications for sovereignty:
* **Divine Sovereignty**: In theocratic systems, ultimate sovereignty is attributed to God, with human rulers serving as God's representatives or stewards.
* **Legitimation of Authority**: Throughout history, rulers have claimed divine sanction to legitimize their authority (the Divine Right of Kings theory we discussed in our sovereignty lecture).
* **Limits on Human Sovereignty**: Divine law sets limits on human sovereignty, as even sovereigns are considered subject to divine law.
### 5.5 Manifestations of Divine Law
Divine Law manifests in various religious legal traditions:
#### 5.5.1 Jewish Law (Halakha)
* Based on the Torah (the first five books of the Hebrew Bible) and subsequent rabbinic interpretations
* Covers religious, criminal, civil, and ethical aspects of life
* Developed through rabbinic discussions and responsa (formal written rulings)
#### 5.5.2 Islamic Law (Sharia)
* Derived from the Quran and Sunnah
* Developed through scholarly methods including ijma (consensus) and qiyas (analogical reasoning)
* Comprehensive system covering religious duties, personal status, transactions, and criminal matters
#### 5.5.3 Christian Canon Law
* Based on the Bible, church councils, and ecclesiastical authorities
* Primarily governs the internal affairs of the church
* In medieval Europe, it had broader application to matters like marriage
### 5.6 Critique and Contemporary Relevance
Divine law faces several challenges in modern secular societies:
* **Pluralism**: In religiously diverse societies, whose divine law should prevail?
* **Verification Problem**: Claims about divine revelation cannot be empirically verified.
* **Interpretation Issues**: Sacred texts require human interpretation, leading to doctrinal disputes.
Despite these challenges, divine law remains influential:
* In many countries with religious legal systems, divine law continues to govern personal status matters.
* Religious legal traditions contribute to the development of legal ethics and principles of justice.
* Religious perspectives provide alternative frameworks for thinking about legal problems.
## 6.0 SUMMARY
In this lecture, we have explored three major types of law: Natural Law, Positive Law, and Divine Law. Let's recap the key points:
### Natural Law
* Based on the idea that certain principles of right and wrong are inherent in nature and discoverable through human reason
* Developed from ancient Greek philosophy through medieval scholasticism to modern natural rights theories
* Characterized by universality, immutability, and accessibility through reason
* Provides a standard for evaluating positive law and limits on sovereign power
* Influential in human rights discourse and constitutional interpretation
### Positive Law
* Law posited or established by human authority
* Developed from early command theories to sophisticated models of legal systems
* Characterized by the separation of law and morality, emphasis on social facts, and conventional nature
* Closely connected to concepts of legal sovereignty and authority
* Can be classified based on authority, subject matter, and jurisdiction
* Dominant in contemporary legal practice and education
### Divine Law
* Law believed to originate from a divine source
* Found in ancient religious legal codes and systematized in medieval religious legal systems
* Characterized by divine origin, perfection, eternality, and comprehensiveness
* Influences concepts of sovereignty through divine right theories and theocratic governance
* Manifested in religious legal traditions like Halakha, Sharia, and Canon Law
* Remains influential in many societies despite challenges from secularism
These three perspectives on law reflect different understandings of the nature and source of legal authority. Each has made significant contributions to legal theory and practice, and each continues to influence contemporary legal systems.
The relationship between these types of law connects directly to our previous discussion on sovereignty. Natural Law sets moral limits on sovereign power, Positive Law reflects the exercise of sovereignty through legislative authority, and Divine Law suggests a higher sovereignty to which human rulers are accountable.
Understanding these types of law helps us appreciate the complexity of legal systems and the diversity of legal traditions across cultures and historical periods. It also provides a framework for addressing tensions between competing sources of legal authority—tensions that are increasingly important in our globalized world.
As future legal professionals, your understanding of these foundational concepts will inform your approach to legal interpretation, your evaluation of legal systems, and your contribution to ongoing debates about the nature and purpose of law.
## 7.0 TUTOR MARKED ASSIGNMENT
1. Compare and contrast Natural Law and Positive Law, highlighting their different approaches to the relationship between law and morality. Which approach do you find more convincing, and why? (20 marks)
2. "Divine Law is irrelevant in modern secular legal systems." Critically evaluate this statement, providing examples to support your argument. (15 marks)
3. How do the different types of law we have discussed relate to the concept of sovereignty explored in our previous lecture? Explain with reference to specific examples. (20 marks)
4. Analyze the Nigerian legal system in terms of the three types of law discussed in this lecture. To what extent does each type of law influence Nigerian jurisprudence? (15 marks)
5. Case Study: The Supreme Court of Nigeria is considering a case where a law enacted by the National Assembly conflicts with traditional cultural practices that many citizens consider to be natural law. The law also appears to contradict certain religious principles held by a significant portion of the population.
a) How might proponents of each type of law (Natural, Positive, and Divine) approach this conflict?
b) What principles should guide the Supreme Court in resolving this case?
c) What does this case reveal about the relationship between different sources of law in contemporary Nigeria?
(30 marks)
## 8.0 REFERENCES
Aquinas, T. (1947). *Summa Theologica* (Fathers of the English Dominican Province, Trans.). Benziger Bros.
Austin, J. (1832). *The Province of Jurisprudence Determined*. London: John Murray.
Bix, B. (1996). *Jurisprudence: Theory and Context*. Sweet & Maxwell.
Cicero. (1928). *De Republica* (C.W. Keyes, Trans.). Harvard University Press.
Finnis, J. (1980). *Natural Law and Natural Rights*. Oxford: Clarendon Press.
Fuller, L.L. (1964). *The Morality of Law*. Yale University Press.
Grotius, H. (1625). *De Jure Belli ac Pacis* (On the Law of War and Peace).
Hart, H.L.A. (1961). *The Concept of Law*. Oxford: Clarendon Press.
Kamali, M.H. (2008). *Shari'ah Law: An Introduction*. Oneworld Publications.
Kelsen, H. (1945). *General Theory of Law and State*. Cambridge: Harvard University Press.
Locke, J. (1689). *Two Treatises of Government*.
Menski, W. (2006). *Comparative Law in a Global Context: The Legal Systems of Asia and Africa*. Cambridge University Press.
Raz, J. (1979). *The Authority of Law: Essays on Law and Morality*. Oxford University Press.
Rawls, J. (1971). *A Theory of Justice*. Harvard University Press.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended).