FIRST SEMESTER TRANSCRIBED NOTE

JURISPRUDENCE AND LEGAL THEORY

LECTURER: HON. DR. JUSTICE BINNEH KAMARA

PREPARED BY: LEGAL JUICE

LECTURE ONE

The module has never been a popular module for a number of reasons:

1. Its content is quite eclectic. Its content is quite broad. It is drawn from different
disciplines vis-a-vis political and moral philosophy, sociology, anthropology, linguistics,
communication, etc. The writings of scholars in these respective disciplines are shaped
with different ideas relating to different jurisprudential schools of thought.

We say the subject is eclectic in content because of this it is not popular among students because
it is not a study of law, it is rather a study about law. Jurisprudence is not a study of law. Even
though yes it is said that it resonates with the study of law to a limited extent, it studies the law
but that extent is very limited. To a very large extent, it concerns a broad study about the law. To
a very limited extent it is a study of the law. But to a very large extent significantly it is much
more a study about the law than the study of law. This is the reason why we say its content is
quite eclectic

WHAT DO WE MEAN BY THIS?

In our study of the law we have adopted the practical approach which is said to be the basis of
legal practice, and we are faced with solving legal problems. We are required to provide specific
answers to specific legal problems that we encounter in the legal community. We go to the court
as an arbiter of justice for redress and remedies. When we go the court for redress and remedies
we expect the court to enforce the rights and obligations that the law imposes on citizens or on
any other person within a political community. We depend on the law to enforce the rights and
obligations that it imposes on citizens and every other person living in the political community.
As a result of this, there is a central mechanism for dispute resolution created by the state. This
mechanism created by the state for dispute resolution is known as the judicial system, and the

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judicial system addresses every other problem that emerges in society relating to the law. The
law touches and affects every other thing that impacts us in the political system. So if you have
an issue relating to your fundamental civil rights, freedom and liberty. If it is threatened,
violated, abused, or unjustly taken away from you, you have a remedy as a citizen; you come to
the judiciary which is the arbiter of justice for redress. And when you come to the judiciary for
redress you present the practical problem which you have experience that has undermined your
fundamental civil rights, freedom and liberty. The law is applied to your problem and then the
law finds a solution to your problem. That solution binds every other member of society. It is
against this backdrop that you are being trained as lawyers to understand the practical side of
law. So the study of law concerns the study of the practical side of law, the study of the rules, the
study of the principles of law, the study of decided cases that have emerged with the common
law through the incremental approach. The study of how judges have relied on the incremental
approach to shaped the development and the evolution of the common law. The study of how the
institutions that make and interpret the law, how did they function, because governance is all
about law. It is about law making, law implementation and law interpretation.

So a student of law is trained on the dynamics of law making. The student of law is trained
on the dynamics of law implementation. The student of law is trained on the dynamics of law
interpretation. And the student of law is trained on the law itself, on the sources of the law as
legal doctrines. So there are two fundamental legal doctrines that underpin the rule of law in
liberal democracy. These are:

1. Statute
2. Common Law

For Sierra Leone you do know that equity and customary law are a constituent part of our own
common law pursuant subsection 2 of section 170 of the Constitution of Sierra Leone Act
No.6 of 1991. And even delegated legislation which is subsidiary statute is borne in the group of
statute that is why it takes the form of statutory instruments. When it is made it made it has to be
laid in the of parliament for a requisite 21 days statutory period before it becomes law just as
when a bill is made pursuant to section 106 it has to go through the processes of law making
before it eventually becomes law. Drafting, first reading, second reading, committee stage, third
reading, Presidential assent, and should the president refused to give assent to it; he sends it back

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to parliament for consultations and deliberations should the bill get a two-third majority support
in parliament, it would be endorsed by the speaker of parliament and gazette as such. Thus, it
becomes law. So all of these constitute the practical arrangement relating to the law itself, its
sources, its institutions that are responsible for its making implementation and interpretation and
how can citizens rely on it for the enforcement of their civil rights, freedoms and liberty in liberal
democracy. You are trained in these.

Now all what you have done so far is about the study of statute and the common law. Much of
the civil law is equally rooted in the common law. Particularly Contract and the Law of Tort.
These are central to the common law system in the world’s Community of Nations.

Statutes and the common law are said to be the basis of every other branch of the law. But the
common law has played a very serious role and it is still playing a very serious role in the
evolution of the legal regimes of common law system, particularly Sierra Leone. There are a
very limited statute that have been enacted in relation to the Law of Contract as opposed to what
obtains in England wherein there is practically the statute regulating every other branch of the
Law of Contract. Because Law of Contract is collapsed into four:

1. The elements

The essence of that is for you to have the ability as a legal person to distinguish agreements that
are contractual from those that are not. And if those eight which are in paraphernalia if anyone is
absent then the agreement is not enforceable. It is rather void, voidable or unenforceable.

2. Terms of Contract

Which can either be implied or express. Express can be either intermediate or innominate terms,
Conditions or Warranties.

Implied can generate from Statute or Trade Usage and from customs and conventions.

3. Vitiating Factors

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The factors that invalidates, the factors that affects the validity of the contract. Misrepresentation,
Mistakes, Undue influence, Duress, Illegality.

Mistake and Misrepresentation are very broad in scope. Mistake could be as to the subject
matter, as to the parties, as to identity etc. and it would have to deal with concept like non est
factum etc, looking at equity the extent to which equity has impacted the evolution of ideas in
the contract regimes of the common law system.

And then for misrepresentation you have, innocent, negligence or fraudulent.

4. TERMINATION OF A CONTRACT

And then eventually you come now to termination. Factors that result in the termination of a
contract. By Agreements, by Breach, by Frustration and by performance/ Discharge.

So all of these is expected of a law student because you are being trained in the law, the sources
of the law, the institutions that make, implement and interpret the law and the place and function
of the law in society. This is what you are already accustomed to. It is in this realm that you are
trained. That is the practical side of the study of the law. Now when you go to the law school,
you are train on the substantive law. That is the substantive law only creates rights and
obligations. That is what is common in every other branch of the substantive law, whether it is
civil or criminal, whether it is private or public. In whatever way you describe it, that is what is
embedded in it. What you are learning here is the substantive law and it is the substantive law
that establishes rights and obligations. The substantive law does not provide the mechanism by
which rights and obligations are enforced and that is not the training for the university, it is the
training for the Bar. So when you go now to the Law School you are to be trained to what is
known as the adjectival law. The adjectival law does not create rights and obligations but rather
it is the mechanism by which rights and obligations are enforced. The adjectival law is made up
of rules of evidence and rules relating to civil procedure, evidential rules relating to criminal
proceedings, evidential rules relating to Criminal proceedings. When you have had that rounded
training that is when you are called a lawyer.

So the law in content is a Science, but in practice is an Art, according to Professor Jeffrey
Robert. Here you are taught the science of the law and at the law school you are taught on the

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Art of the law. The skills that you require, the mechanisms that you need to know for the
enforcement of rights and obligations. This is the reason why you are given scenario based
questions and asked to advice. That is the essence of the practical side of legal training which is
the study of law.

Now in a different realm, the study of law in Jurisprudence has an infinitesimal place, a very
small place and it is not the focus of the module. The module is the study about law. It is not a
study of law. It studies law only to a limited extent. Jurisprudence is the study about law.

The law is so versatile; it touches and concerns anything and everything. It affects everything on
any political community. It regulates our conducts and it is a means of social control. It is
through law that society is best control. Because law touches and concern anything and
everything that subsist in a political community, anything and everything that goes up to the
heavens, anything and everything that goes beneath the earth surface then the law must be a
concern not only for lawyers, not only for those who are interested in the practical side of the
law, it is also a philosophical phenomenon of common concern to every other scholar in every
other discipline. This is the essence of this part now of the law in which you are not trained. It is
this side of the law that has never been of interest to lawyers because it content is eclectic, so
challenging. The lawyer has never read political and moral philosophy, he is not interested in
that. He is not interested in sociology. He is not interested in social and cultural anthropology.
He is not interested in linguistics. Neither is he interested in semiotics or etymology nor is he
interested in communication. So why then do you want to force him to have knowledge of
jurisprudence? Knowledge of jurisprudence matters because of the place and functions of law in
society in a political community.

We said according to Roscoe Pound, the great sociological jurisprudent, the law first function as
a means of social control. So irrespective of who you are or where you come from because of
this crucial function of the law it is of interest not only to the man whose interest is to become a
lawyer but to every other member of society.

The law functions as a means of dispute settlement. In our daily lives, as we interact with
members of the human race we are bound to indulge in dispute even within family level. Every
other dispute is resolved by the law. The law is so versatile that it addresses every other dispute

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that has the potential to cause unfairness and injustice to anyone in society. That is why when
you look at historical evolution of the doctrines and maxims and principles of equity, particularly
the maxims of equity which says that “equity will never allow a wrong to suffer without a
remedy”. This is how the law has continued to evolve.
The law does not only function as a means of social control, it does not only function as a means
of dispute settlement it also functions as a means of social engineering. Again it is here that
Roscoe Pound plays a very special role. The word engineering here presupposes ‘construction’.
In other words, it is through law that every other functional institution and structure in society is
created. The law does not only create functional institution and structures, it also regulates
functional institutions and structures in society.
The question now arises, do you know any other functional institution that exists in society that
is neither be created nor regulated by law? Even government as an institution, as the machinery
that is responsible for law making, law implementation and law interpretation is created b y law.
And the exercise of the function of state operatives is regulated by law. The university is created
by law, it is regulated by law. Every other functional institution in society is created and
regulated by law. So therefore, the law is not only meant for lawyers, it is meant for every other
person in any other discipline. And it is again through law that society preserves it environment,
it resources, it culture and it heritage. This is where you see the function of the law at play.
You have Natural Resource law putting forth regulations as to how the state must ensure that it
natural resources are equitably allocated, and rationally allocated for the benefit of all and sundry
in society. For such resources not to be exploited, you have regulations. In political theory we are
told that power corrupt but absolute power corrupt absolutely. If those at the helm of things,
who are in control of state and its resources are allowed to utilize it to their advantage society
suffers. And that in itself is a manifestation of injustice and the greatest danger in society is to
kill or rather slaughter justice at the altar of bigotry and selfishness. When people are denied
access to justice, people will find way of getting it, and when that happens society suffers. And
because where there is injustice society suffers, justice is not the concern of persons who want to
be lawyers alone, it is also the concern of every other person, hence the study about law.

So because law occupies a central place and performs unique functions in society, scholars in
different disciplines based on knowledge from their own disciplines have now come to examine

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this thing call law from the stand point of their own perspectives. So they are not indulging in the
study of law, they are rather indulging in the study about law.
So because we said Jurisprudence is eclectic it has not been popular among law students.

We are still struggling with a simple question, what is the nature of law? Every other thing that is
embedded in this module Jurisprudence is all about this question. What is the nature of law?
Everything in this difficult module is about finding an answer to this question. The lawyers are
not interested in that, they will tell you the law is the law it is rooted in statute and the common
law, these are the legal doctrines. That is why they are trained in the art and the science of the
law. The Science of the law establishes rights and obligations. The Art of the law establishes
the mechanisms by which rights and obligations are enforce. So they are ready to provide
remedy to any legal problem.

Jurisprudence is study in the context of you moving from the known to the unknown. They are
interested in knowing the nature of things. They are not interest in knowing the nature of the law.
So this is one of the reasons why we say the study of jurisprudence is not popular among law
students because it approach is eclectic. It draws its content from different disciplines including
politics, philosophy, sociology, psychology, anthropology, social and cultural anthropology,
linguistics, communication etc.
2. The next problem with the study about law is that it is written in a difficult and
convoluted language
The language of jurisprudence is convoluted. So now you ask yourself a question, why is it that
jurisprudence is not popular among student?
 The first is that because it content is eclectic in nature.
 The second is that it is written in difficult and convoluted language.
The language of jurisprudence is so challenging that you will begin to wonder how crucial
language is to the study of jurisprudence. The language is convoluted. It is not written in legal
language. The law student in the study of the law is exposed to the use of legal phraseology,
legal concepts, legal rules and principles shaped by statute and the common law. And now the
law student reading jurisprudence in a language that is different from what he is accustomed to.
It would not be easy for the student to really cope.

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The language in which the subject is written is different from the legal language the law student
is accustomed to. The law study is accustomed to legal concept, principles and rules shaped by
their knowledge in statute and the common law. But know the law student is faced with
language that is shrouded in philosophical and theoretical perspectives. The language in which
these texts are written is so strong that by the time you read one paragraph you would see about
twenty, forty or sixty words which meaning you could not know. So your first task is to begin to
find out the meanings of those words. When the jurisprudent speaks about positivism and
noncognitivism in ethics you must know what the jurisprudent means. When the sociological
jurisprudent say that society is not mechanically concatenated you must know what it means.
When scholars in the Marxian school makes use of the Hegelian dialectics to explaining the
evolution of law in society from the stand point of thesis, antithesis and synthesis you must know
what it means.
So it language is convoluted and difficult to grasp. The linguistics tells you that semantics
matters. The linguist tells you that “words are the tools of thought. If your vocabulary is
limited you are necessarily a limited thinker. For you can neither think nor communicate
beyond the confines of your limited vocabulary.”
So the student of jurisprudence must know the language of the discipline. If you do not
understand the language of the discipline how can you cope with it?
3. Methods
The next reason why we say the subject is not appealing to law student is it method. The method
that is employed in the study of the subject is not the practical approach to the study of law. It is
rather the theoretical and philosophical approach.
So the question arises, how can the student of jurisprudence explore the content of the subject
when he is not knowledgeable with the requisite philosophical and theoretical knowledge of the
related disciplines?
The student of jurisprudence is advice to spend some time reading around theories related to the
concept about law. When the student is exposed to these challenges, he now focuses his attention
to the question below
what is Jurisprudence?
The next is why do I need to study jurisprudence?

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 WHAT IS JURISPRUDENCE
Jurisprudence concerns the science and philosophy of law. The study of jurisprudence is about
the science and philosophy of law. So which means the module can be studied philosophically
and scientifically.
If it is to be studied scientifically, then the methodology in a natural and physical sciences must
fits into the study of jurisprudence.
If it is to be study philosophically, then we must deploy the requisite or philosophical methods.
Philosophy presupposes the clarification of the meanings of concepts. This is what professor
A.J A. J Ayer in his language ‘Truth and Logic’ defines philosophy. He argued that
philosophical problems often arise from misunderstandings of language and that the role of
philosophy is to clarify concepts and statements and statements to resolves these confusion. He
emphasized the importance of logical analysis and the verification principle in understanding
meaningful statements.
Of course jurisprudence is studied philosophically because we are concern with the clarification
of the meanings of the concept of law.
The study of jurisprudence is the study of law from the stand point of philosophical and scientific
perspectives.
Jurisprudence concern itself with one principal research question, which is what is the nature of
law?
In effect this question, the study of the nature of law can be collapsed into two vis-a- vis:
1. What is law
2. What is a good law

SCOPE AND NATURE OF JURISPRUDENCE

According to Professor Cross of Oxford University the province of jurisprudence is divided into
three parts/ components. These are:
1. The study of the definition and nature of law.
2. The study of legal concepts underpinning a legal system.
3. The study of the sources of the laws of the legal systems.

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In summary, this first part of jurisprudence is the most challenging it is so challenging that it
encompasses the perspectives of different scholars belonging to different jurisprudential schools
of thought. Their focus is to answer the research question what is the nature of law. These
scholars in different schools of thought have all articulate different theories of law. There are
those in the natural law school which is the broadest school of thought. And there are those
scholars who wrote extensively on the revival of natural law. The man who started the revival
was Professor Lord Fuller. He engages in a serious debate with Professor H. L. A. Hart after
the Nazi informant case. Hart wrote an article in the oxford law review in 1958 condemning the
decision of the German Court that the informant was unfairly convicted because what she did at
the time was the law of Germany irrespective of whether that court lack any moral content. And
then Professor Fuller came up with his Inner Morality of Law condemning Professor H.L.A.
Hart and supporting the German court in the same Harvard Law Review of 1958. And H.L.A.
Hart responded in a chapter in The Concept of Law in 1961. And Fuller also responded and he
was finally nailed by H.L.A Hart when he asked a simple question that he could no longer
answer. Fuller developed the criteria for the validity of a legal system which he calls the inner
morality of law based on eight principles. He said he has discovered the inner morality of law
which the law of any legal system must have if it is to be valid. Fuller was neither a legal
positivist nor a natural law scholar. H.L.A Hart just told him one thing that a despotic, tyrannical
and authoritarian regime can apply all your eight principles regarding inner morality of law but
can still pass and enacts bad law that will suppress society and the bourgeois of the people of that
society, what is your take on it? To date Fuller could not respond.
And then in 1981 another man was studying Fuller by the name of Professor John Finnis. It
was he who came and rescued us in a natural law school by reviving natural law.
And then there are those in the legal positivist school, there are those in the anthropological
school, there are those in the Marxian school, there are those in the legal realism legal formalism
and the others in the sociological school. And there are those in the historical school, historical
jurisprudence etc.

What are these concept we are much more concern on:

Justice, freedom, liberty, rights, human rights, possession, ownership, stare decisis, binding
precedent, liberalism, statism, etc. this is the second phase according to Professor Cross.

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The third and final phase concerns the sources of law.

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LECTURE 2

This are said to be the structural architecture upon which Jurisprudence is constructed

1. The study of the nature and definition of law.

2. The study of the fundamental legal conceptual phenomena that underpinned the
study of the legal system.
3. The study of the sources of the law of our legal system.

THE STUDY OF THE NATURE AND DEFINITION OF LAW

This first part concerns the study of the nature and definition of law. The main established
question in Jurisprudence is what is the nature of law?

This question has attracted different answers from different scholars belonging to different
jurisprudential schools of thought. In an attempt to answer this question, so many other questions
have emerged that have shaped the scope of modern legal theory. These questions include:

1. What is law?
2. What is a good law?
3. What is a legal system?
4. What is morality and how is it different from law?
5. What is coercion and how is it different from law?
6. Is an unjust law, law?
7. Is public international law really law?
8. What are the criteria of a legal system?
9. What is justice?
10. How relevant is the concept of justice in promoting peaceful coexistence in a political
community?
11. What are rights?
12. Is the concept of right different from liberty?
13. How can the balance be struck between statism and liberalism?
14. What is statism?
15. What is liberalism?

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 16. How is possession different from ownership?
17. Of what relevance is stare decisis or binding precedent in a judicial reasoning?

FIRST PHASE

Thus, there are different theories put forth to explain the nature of law vis-à-vis:

 The Classical Natural Law Theories

 Theories relating to the decline of Natural Law
 The revival theories of Natural Law
 Classical legal positivist theories
 Modern theories of Legal Positivism
 Legal Realist theories (Scandinavian and American Realism)
 American realism and Scandinavian Realism
 Theories of Sociological Jurisprudence and Sociology of Law
 Theories of Historical Jurisprudence
 The Marxian Conception of Law
 Anthropological Jurisprudence
 Psychology of Law
 Feminist Jurisprudence

These are the most notable theories that have evolved in the first phase of jurisprudence.

SECON PHASE

 The second Phase of Jurisprudence concerns the study of the fundamental legal concepts
of a legal system.
 The study also encompasses the Significance of the Fundamental Legal principles of a
Legal system.

The most notable legal concepts of a functional legal system are:

1. Statism
2. Sovereignty
3. Liberalism

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 4. Justice
5. Freedom
6. Liberty
7. Right
8. Ownership and possession
9. Stare decisis or binding judicial precedent etc.

THIRD PHASE

The third phase of Jurisprudence relates to the Sources of Law of a Legal System.

In general, the sources of law in common law system are rooted in what are known as legal
doctrines of the common law and statute. In other words, statute and the common law are the
most fundamental sources of law in common law system. And these sources of law are produce
by specific governance institution in the governance processes of the state.

The Common law has evolved with the decisions of Judges of the Superior court of Judicature in
consonance with the conventional practices and customs of common law system. Judges are said
to be the custodians of the common law, and they have relied on the incremental approach to
shape the evolution of the common law through the case law system. This is what is the basis of
stare decisis or binding Judicial Precedent. The jurisprudential question that arises here is do
Judges make law?

Do you think this question is relevant when we have learnt in constitutionalism that parliament is
the only institution that makes and unmake law for the peace, security and good governance of
Sierra Leone?

If you look at section 73 sub section 1 of the 1991 Constitution, it says that the only institution
that is mandated to make and unmake laws for the peace, security and good governance of the
state in our legislative assembly which is Parliament. Yes, Judges can make law, because one of
the sources of law is case law.

The other source of law in common law system is statute. Statute is also known as Act of
Parliament or Legislation. This source of law is as formalistic as case law. Section 106 of the
1991 Constitution concerns the law making processes:

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  Drafting
 First reading
 Second reading
 Committee stage
 Third reading
 Presidential assent

Where presidential assent is lacking, the bill which is a proposed law is sent back to Parliament
for other consultations and deliberations. Should the bill gets a two-third majority support in
parliament, it would be endorse by the speaker of parliament and gazette as such. Thus, it
becomes law.

The question that arises now, if a law has gone through a formalistic processes of law making
by the Legislative Assembly does a court of competent Jurisdiction have any constitutional
audacity to declare it null and void, why or why not?

It depends on the legal system. It depends on the constitutional system with which you are
concern.

In constitutionalism, two sets of arguments are canvassed by two distinctively different schools
of constitutionalism.

1. There are those who belong to the school of thought known as legal
constitutionalism.
2. There are those who belong to the school of thought known as political
constitutionalism.

POLITICAL CONSTITUTIONALISM

For the political constitutionalist they are of the view that if a legislation, a statute, an Act of
parliament has been through the formalistic processes of law making then no court of competent
jurisdiction must declare it null and void. In other words, if what is considered a proposed law
which is a bill and has been through the formalistic processes of law making, drafting, first
reading, second reading, committee stage, third reading, presidential assent or if the president
refuses to sign it for it to become law it is sent to parliament for further deliberations and

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consultations. If parliament could get a two – third majority support then it would be endorsed
and gazette, it would then been considered law without even having a presidential assent.

This tells you that sovereignty in a liberal democratic system belongs to the people for whom
government through the constitution derived it powers, authorities and legitimacy. This is in
accordance with subsection 2 of section 5 of the Constitution of Sierra Leone Act No.6 of
1991.

LOOK AT THE ARGUMENT

Legislative Assembly is made up of the legislators who are representing the people. Every
legislator in parliament is voted for, even the speaker of parliament. According to the
Amendment of the Constitution of Sierra Leone, third amendment of Act no. 6 of 1991, you
could be appointed speaker of parliament, if you were a Judge or you are a Judge of the Superior
Court of Judicature. But now according to the amendment, for you to be a speaker of parliament
you must have been elected to parliament. And now for you to be eligible to be voted for as
Speaker in Parliament it is the legislators themselves, the law makers that would now vote for
you to be speaker of parliament. You must have been there in Parliament for a period of ten
years. For example, the present Speaker of Parliament Honorable Solomon SengehpohThomas is
a Barrister and Solicitor of the High Court of Sierra Leone, but he is a politician. Contested for
election and won. He was a Member of Parliament then. So he qualified as a Member of
Parliament. He was elected as a Member of Parliament and now was elected as Speaker of
Parliament by the Parliamentarians themselves. Now tell me, Parliament which is made up of the
People’s assembly, Legislative Assembly, Parliament has sat as an institution having
representatives from all over the country. They have made a law and it has gone through the
formal processes. Judges who are not voted for but appointed base on the whims and caprices of
the President now come and declared law made by legislative Assembly null and void. Is that
fair to the democratic processes of the state?

Now the Political Constitutionalist are saying that in our own system of constitutionalism when a
law has been enacted as long as it has been through the formalistic processes, no court of
competent jurisdiction can declare it null and void. This resonates with what obtains in the
United Kingdom, the British Parliamentary System of Governance. Remember when the

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Government of Boris Johnson came up with that proposal to take those who are seeking political
asylum in England whose cases where been looked into for them to be taking to Rwanda, the
matter came to court, they filed an action referencing so many refugee laws to which England is
a signatory. And the doctrine of Pacta Sunt Servanda which means that if any treaty entered
into by an independent sovereign state must be respected was evoked by Judges of the Superior
Court of England and judgment was handed down against the British Government. Now what the
British Government did, they had to go back to Parliament to pass that into Law that the treaty
which they had entered into with Rwanda to host those who are going to England illegally or
otherwise seeking political asylum in England, whose cases had been review most been taken to
Rwanda. So they went to parliament and passed it into law after the court had ruled against them.
When it was passed now into law by Parliament, because it is a state that is governed by
philosophy of political constitutionalism, no court in England can declare it null and void again.

But for us in Sierra Leone our own legal system is not modeled on the philosophy or
jurisprudence of political constitutionalism. It is rather modeled on the jurisprudence of legal
constitutionalism. Which is based on the idea that even if a law has been through the formalistic
processes of law making, if it is in contravention of the fundamental principles, doctrines and
ideals of the constitution then the Supreme Court is mandated pursuant to section 171(15) of the
Constitution of Sierra Leone 1991 to declare it null and void to the extent of the inconsistency.

Now the question is do you have a credible, independent, incorruptible, impartial and neutral
Judiciary that must exercise this function? These are the jurisprudential question. So is it fair for
political representatives (the people). The people are the political sovereign. They are also
known as the electors. They are known as the electorate. It is their representatives who are in
Parliament to make laws on their behalf. Laws have been made formally and now those who are
not voted for or who are appointed are now coming to declare them null and void. So is it fair on
the part of the political sovereign for their representatives to make law and then you have Judges
now come and say this law are in contravention of the constitution and declare them null and
void?

Is a fair ideal wherein you have a judicial system which is neutral, independent, impartial and
incorruptible?

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LECTURE 3

Apart from those three classifications which will be the focus of our study, there are two other
aspect regarding the nature of law that are necessary to study in the context of jurisprudence and
legal theory. These are:

1. The eclectic nature of law

2. Legal research

Now we are saying Jurisprudence concern the study of the science and the philosophy of law.
And what underpinned the entire study of jurisprudence is a central research question what is the
nature of law? This question is collapsed into two:

1. What is law?
2. What is a good law?

THE ECLECTIC NATURE OF LAW

The study of law is eclectic and it requires serious time, energy and resources to be able to grasps
its fundamental principles, concepts and rules. The study of law is broad but that does not mean
it is amorphous (shapeless). It requires very serious psychic energy to master its concepts,
principles and rules.

According to Professor Geoffrey Robertson of the University of London in his classical

textbook on Human Rights and Constitutionalism title Crimes against Humanity:
Struggle for Global Justice, he said “The law is a science in content, but in practice, it is
an art”. This means the law can both be study scientifically and artistically.

Substantive law
Mostly the content of the law is what is described as the substantive law. The substantive law
establishes or creates rights and obligations in a political community. And the substantive law
had been classified into different components.

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Artistic law
The other side of the law (the artistic component) does not concern the substantive law which
creates rights and obligations. The law as an art mostly focuses on the mechanisms pursuant to
which rights and obligations are enforced. So this aspect of the law is dubbed adjectival. In
general adjectival law does not create rights and obligations but it rather concerns the
mechanisms by which rights and obligations are enforced.

The substantive law is mostly associated with legal scholarship. Legal scholarship concerns
principally the substantive law and the substantive law irrespective of which branch it is located,
concern one group which they all share, whether it is criminal law, whether it is constitutional
law, whether it is administrative law, whether it is human rights law, whether it is media and
telecommunication law etc in the domain of public law.

The private law which is mostly concern with the civil law, whether it is contract, whether it is
Tort, Equity and Trust, Partnership and Corporate law, Family law etc. even International law,
whether it is Private International law, Public International law or International trade law ,
whether it is International Criminal law, International Humanitarian law or International Human
Right law, irrespective of how it is called, one thing run across all of them, it always creates
rights and obligations.

The adjectival law is the structural architecture upon which legal practice is constructed. It is the
mechanisms by which the rights and obligations created by this branch of the law are enforced.
So in general, they do not create rights and obligations. They are divided into two parts:

1. The rules of evidence

2. The rules of procedure

RULES OF EVIDENCE
What is evidence? Why is it that every other matter has to be decided on the admissibility,
relevance and weight of the evidence that is adduce in court? Every other bits of evidence that is
relevant to the fact or the fact in issue is admissible in evidence. But a piece of evidence could be
admissible in evidence but again which weight the tribunal of fact will attached to it. Because the
business of the court as an arbiter of justice is to ensure that the scale are held balance. So that
which you bring to the court which is virtual, which is not concocted or fictitious to convince the
reasonable tribunal of fact to believe in your case is what is known as evidence.

So you begin the issue relating to the burden and standard of proves in relation to civil
proceedings and in relation to criminal proceedings.

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CRIMINAL PROCEEDING
In a criminal trial, it is always the responsibility of the prosecution to prove their case, and they
must do that beyond reasonable doubt. So proof beyond reasonable doubt is a threshold, it is the
standard of proof that is required in criminal proceedings. This is by virtue of Lord Sankey
postulation in WOOLMINGTON V DPP.

CIVIL PROCEEDING
In civil proceedings, it is the responsibility of the Claimant or the Plaintiff to produce evidence to
convince the reasonable tribunal of fact on a balance of probability for judgment to be entered in
their favor. Balance of probability means that examining the evidence in it totality. It appears to
the tribunal of fact this piece of evidence is not only relevant, it is admissible and very weighty
to convince any other person that the defendant is liable for the tort for which he is brought in
court. Now that burden does not shift because this is the way the common law system is
structure. The burden of proof is either on the prosecution or the claimant to establish their case
either on a balance of probability or prove beyond reasonable doubt.

The next issue that comes up is the relevance of what is known as the evidential burden. The
defendant in a criminal trial is not obliged to say anything or to come with any evidence to prove
anything to a court of competent jurisdiction.

The person who brings it, it is his or her responsibility to prove their case. Now if the defendant
or the accused raises any defence, for example if it were in a criminal trial he raises the defences
of duress, whether it is duress per mina, duress per circumstance, whether it is self defence,
whether it is necessity, whether it is provocation, whether it is automatism, whether it is self
intoxication, irrespective of which defence he raises then he assumes the evidential burden of
proving that defence. This is contingent on the elementary principle in evidence that says “he
who assert must prove”. But the defendant or the accused is not obliged to prove anything
unless he/ she raise a defence.

If it were in a civil trial then the civil defences available to him can be raised. And then the court
will balance of the defence as raised and the facts that are established by the other side and take
decision. This is what is known as balance of probability in a civil trial.

The next evidential issue which you must understand is the concept of competence and
compellability. There are classes of persons who you may consider to be witnesses but in law
they cannot be witnesses, so these are witnesses that are not competent. There are those which
you consider to be witnesses, yes the law says they are competent but the law could further say
they are not compellable.

RULES OF CIVIL PROCEDURE

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Now when your client comes to you, your concern is to provide a remedy for your client. He
comes and explains the circumstances that have culminated in the need for litigation. It is up to
you to search your mental notebook where you have recorded the substantive law relating to
these branches. No sooner the client explains you know this is a problem that relates to the law
of torts; this relates to contract, this relates to land law etc. let say for example you have a piece
of land which Mr. Jus sold to you and Hafeez sells the same piece of land to her say black acre.
And now you have been accumulating funds to start construction this year you are told that she
has already started construction on this piece of land. And now you come to a lawyer and explain
your concerns to the lawyer about black acre that you have gather some fund to start construction
on the said black acre but saw another person claiming to own the same black acre.

The lawyer advice to him will be for him to issue a writ of summon, because the remedy which
he requires is not a statutory remedy, but rather a common law remedy for him to be declared the
owner of the property. So when the lawyer filed the writ of summons, he has what are known as
statement of claim and also what are known as particulars of claim depending on whether the
lawyer is issuing a generally endorsed writ or a specially endorsed writ. If the law issues the writ
and subsequently serving, the particulars of claim then that is not a generally endorsed writ, it is
a specially endorsed writ. So the lawyer prayer is what he is asking the court for. So the first
concern which civil procedure addresses when you your client have a problem is that of
jurisdiction. A lawyer must know the respective courts that are in the Sierra Leone Legal System
and what are their respective jurisdictions. One of the exclusive jurisdiction of the High Court of
Justice concerns declaration of title to property. That is why if you look at the first schedule of
the Court Act of 1965, you will see a number of civil actions that can only be begun in the High
Court of Justice. Those matter falls within the purview of the original exclusive jurisdiction of
the High Court of Justice. That has to be read intandem with Section 132 of the Constitution of
Sierra Leone Act No.6 0f 1991. So because it is the High Court of Justice that has the
Jurisdiction to the exclusion of every other court in the Sierra Leone legal system that is where
you bring the matter. The lawyer issues a writ of summons. But because of the peculiarity of the
circumstance, you would not issue a writ first; you want her not to do with the land as it is
because nobody owns it until it is declared. When you filing the writ you filed a notice of motion
supported by the requisite affidavit in support preventing her, asking for what is known as first
interim injunction and then you pray for interlocutory injunction in the same notice of motion.
Now when you come you will not serve her first you would come exparte (that is without serving
the other side). You make full and frank disclosure and you asked the court to give you an
interim injunction which will span for seven days and within the seven days the court will order
that you serve the writ and this order of interim injunction and every other relevant process in
her.

Now when you come to argue the matter before even the commencement of trial, she is expected
to file and affidavit in opposition to the application which you have made opposing the
application. And the court will listen to both practitioner and make an order in the interest of

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justice known as an interlocutory injunction which will subsist for the period for which the trial
subsist. And then before even she files the affidavit in opposition to the current application that is
before the court, she must have entered appearance. And she must have filed defence and
possibly in the circumstance a counter claim. If she chooses not to enter an appearance then you
can take the judgment in default of appearance against her. But judgment in default of
appearance can be always set aside as of right if you actually followed the proceedings. The rules
as they are. But if you breach any of the rules it can be set aside as of right but if you strictly
follow the rule it can be set aside on terms. The reason for this is the constitutional principles of
Audi alteram partem which means the other side must be heard. If she files in an appearance and
files an affidavit in opposition to the motion before the court, yes, she can come argue it but the
rules require that she files her defence and counter claim within ten days. If she raises anything
in defence and counter claim which you are dissatisfied with you must respond to the defence
and counter claim. And if you have established that her defence is of no value, it is only
calculated to waste the time of the court, you can file for an application pursuant to Order 16 or
Order 17. Order 16 for the matter to be disposed of summarily because she does not have any
defence on the merit. Order 17 for the matter to be dispose of on the point of law. That saves
time without even the matter going into trial. But if she has a defence you need not file for Order
16 and 17 applications. Then you have to enter the matter for trial. Before the matter is enter for
trial you must file pursuant to section 28 for summons for direction, for the court to give
direction as to how the matter must proceed. And then you now file for the matter to be set down
for trial. Now when the court gives its order for direction everything relating to the evidence, the
law you intend to rely on, the witnesses you intend calling, everything must be in the court
bundle that you file that is now in possession of the court. That is why in the summons for
direction an order is always there liberty to apply. But if you are to bring in anything new, apart
from what is already in, after you have marked the evidence and forwarded the bundle then you
have to make an application again for the summons for direction to be instituted. And then after
trial, judgment is delivered.

Now civil procedure is all about knowing which court to go to when your client comes to you for
the remedy. Is all about knowing which remedy you come to ask the court for. Is all about
knowing when to go to that court. Is all about how to go to that court. The how question for
litigation in the High Court you go there by either originating notice of motion, originating
summons, petition or writs of summons. The rules will tell you. You must begin the process.

And then criminal procedure, you are brought to court either by warrant or by summon. The
police will investigate if you reported in the police station that you have allegedly committed an
offence. An according to the Criminal Procedure Act 2024 there are provisions relating to the
powers of arrest of the police and the powers of arrest of the civilian. When you are brought to
the police and you are being investigated you are only a suspected. When they established that
there is anything in the evidence that they gathered that leads you in a material particular to the
allegation you become an accused and the matter is charged to court. You have what are known

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as pre-trial rights. Right to bail, right to get a solicitor of your choice, rights to remain silence
and that anything you say will be taken down in writing and be use against you in evidence etc.

And then when you are brought to court you have your trial rights. Rights to representation by
counsel, of cause the police while you are there you should not be detain for more than 72 hours.
Should they do that is a violation of your fundamental rights and nothing precludes you from
bringing an action against the Inspector General of Police, the crime officer of the station that
brings you to court etc.

LECTURE 4

Now we have seen the rules of evidence, we have seen the rules of procedure. The question that
is to be asked is how do we apply the rules of evidence and procedure to the substantive law to
seek the appropriate remedies for our clients?

Now this question is not unconnected with effective legal research. Legal research is doctrinal.
Now in general doctrinal legal research is categories into two components according to Ian
McLeod. They are; Legal Practice and Legal Scholarship. Remember we asked a question how
do you apply the rules of evidence and procedure to the substantive law to get the remedies you
may wants for your client. First of all it depends on which branch of the law that the remedy lies.
If it is a remedy that is rooted in the civil law then we search Statutes, equitable remedy and the
common law. If it is a remedy that is rooted in Criminal law, we search statute and the common
law. Now for you to be able to apply the rules of evidence and procedure to the substantive law
to secure a remedy for your client, that presupposes effective research.

We said it is the adjectival law which is made up of rules of evidence and procedure. It is
pursuant to the adjectival law that rights and obligations are enforced. Be that as it may rights
and obligations are not in the realm of the adjectival law they have to be located in the realm of
the substantive law first that is the scientific side of the law and then connected to the artistic side
of the law to get the remedy which we want. This aspect now leads us to what is known as
effective legal research. Effective legal research is doctrinal. Now doctrinal research is
underpinned by statute and the common law. Now the common law which is said to be central to
doctrinal research is constructed on two fundamental principles vis a vis consistency and change.
Now consistency here presupposes the doctrine of stare decisis or binding judicial precedent. In
general it means like cases be treated in like manner. Judges really do not make law according to
Professor Ronald Dworkin in his thesis “taking Rights seriously and Laws Empire”. The
only institution to make and unmake law is Parliament. Remember everything about law is about
law making, law implementation and law interpretation. When you look at the positivism of
HLA Hart, everything about law according to HLA Hart is about a union between Primary and
Secondary rules.

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 The primary rules are known as the ultimate rules that confer validity to every other rule. And in
the language of Hans Kelsen these are known as the ultimate superior or grundnorm. And then
you have secondary rules which could be rules of adjudication, rules of change etc. now the
union of these primary and secondary rules brings about what is known as law. So for HLA Hart
laws are rules. So in circumstances wherein court of competent jurisdiction are called upon to
determined any matter their business is to interpret or give effect to the rules as they are. Now
Dworkin is saying HLA Hart is wrong. Laws are not only restricted to rules. If we restrict the
meaning of laws to rules then we are basically saying that when the matter comes up and the
court applies the rules as they are the court should be able at every point in time on the basis of
those rules alone and nothing beyond that arrive at a conclusion to determine the outcome of the
matter. And he came up with a thought experiment and described a set of cases that that he called
“Hard cases”. Now these hard cases are those which are meant for adjudication for which when
you apply the rules you will definitely not get the desired effect of justice in applying the rules.
For example, Jusu is the grandfather, he makes a will bequeathing and devising every realty and
personalty he owns to you. After having seen the will you decide to kill him. According to rules
you are to be the beneficiary of the will but now restricting law only to the meaning of rules in
this circumstance could be injustice so which means Professor Hart position of what law is, is
grossly inadequate. So now Professor Hart response is that when the rules are applied and when
it gets to that situation wherein the rules could no longer be applied then judges most use their
discretion. When they use their discretion in determining matters they become deputy legislators,
therefore judges made laws.

Dworkin is saying that is not true, when judges determine matters they do not only look at rules,
they examine principles as well. There are principles beyond rules. Now applying the rules as it
is in your situation you would have benefited from your own wrong. But there is a principle that
says you cannot benefit from your own wrong, and that is not embedded in the rules that the
Judge is bound to apply in determining this matter. So in the determination of matter Judges do
not act as deputy legislators nor do they make laws. It was not Judges that made these principles,
these are principles that are rooted in the customs and conventions and traditions of society itself
of which the judges are members of, so it is up to them to exercise their psychic energy beyond
the rules in recognition of principles to determine matters therefore they are not deputy
legislators. So judges do not make law they interprets law. It is through doctrinal research that
you can get the remedy for your client.

LEGAL RESEARCH METHODOLOGY

The Theoretical and Methodological Framework of Legal Research

Pure legal research is doctrinal. Doctrinal legal research is characterized by 'language ‘and
'logic'. Doctrinal research is a creative process of the common law. It is the most acceptable legal
method. According to Enright, it is a method that is different from those deployed in the social
sciences; it is not about the search for the 'general'. It is about the search for the 'particular'.

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Doctrinal research is purely about statements of the 'nature of law' that cannot be explained in
term of probability. Doctrinal research is based on a critical analysis of the binding legal
doctrines- common law and statutes- underscoring the existence, authority and validity of the
laws of a legal system, which is the main supplier of legal concepts, categories and criteria'.
According to Simmons, legal doctrines, which are 'the heart of a legal system', encompass 'the
corpus of rules, principles... and concepts, used as a basis for legal reasoning and justification'. In
McLeod's Legal Methods, legal reasoning is syllogistic in nature. Asyllogism concerns
'propositions in the form of a major premise (which is a statement of law) and a minor premise
(which is a statement of fact), leading to a conclusion (which is a statement of the legal
outcome)'.

Thus, the task of the doctrinal researcher is to locate the major premise, which underscores the
legal outcome. In the context of logic, this method goes beyond the deductive approach; it also
encapsulates the inductive approach and reasoning by analogy. In fact, the methodic foundations
of the cardinal jurisprudential schools (Legal Positivism and Natural Law) are respectively
shaped by the deductive and inductive reasoning processes?, And the doctrine of stare decisis
(binding judicial precedent) upon which case law is constructed is based on reasoning by
analogy. Thus, the use of inductive and deductive reasoning processes in legal methods was
made prominent by Lord Diplock in Home Office v. Dorset Yacht Co. Ltd. and bolstered in the
juristic explorations of Chynoweth and McLeod, Analytically; I adopt McLeod’s
conceptualism of the inductive, deductive and analogical reasoning processes for purposes of
clarity:

The process of inductive reasoning involves making a number of observations and then
proceeding to formulate a principle which will be of general application. The process of
deductive reasoning involves stating one or more propositions and then reasoning your way to a
conclusion by applying established principles of logic. The process of reasoning by analogy
involves saying that if a number of different things are similar to each other in a number of
different specific ways; they are or should be, similar to each other in other ways as well.

Thus, the use of the above reasoning processes in doctrinal research strengthens the
methodological argumentation that the method is indeed a creative process that shapes the
evolution of knowledge in common law systems. This confirmation is not unconnected with the
thesis of the Council of Australian Law Deans' (CALD's) on the features of a pure doctrinal
research:

To a large extent, it is the doctrinal aspect of law that makes legal research distinctive and
provides an often under-recognized parallel to 'discovery' in the physical sciences. Doctrinal
research at its best involves rigorous and creative synthesis, the making of connections between
seemingly desperate doctrinal strands, and the challenge of connecting general principles from
an inchoate mass of primary materials. The very notion of legal reasoning is a subtle and
sophisticated jurisprudential concept, a unique blend of induction and deduction that has engaged

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legal scholars for generations and it is a key to understanding the mystique of the legal system's
simultaneous achievement of consistency and change, and especially in the growth of the
common law. Yet this only underlines that doctrinal research can scarcely be quarantined from
broader theoretical and institutional questions. If doctrinal research is a distinctive part of legal
research that distinctiveness permeates every other aspect of legal research, for which the
identification, analysis and evaluation of legal doctrines is a basic starting point, platform or
underpinning'.

Thus, it is rationally and legally expedient to unpick the foregoing statement for a thorough grasp
of the fundamental characteristic features of the nature of doctrinal legal research.

Analytical Expositions of CALD's Acceptable Generalizations on the Nature of Pure

Doctrinal Research in Common Law Jurisdictions

Analytically, the generalization inferred from the above are Considered Crucial and have thus
shaped the doctrinal approach of legal academics. The first is the distinctive nature of doctrinal
research. This presents a compellable case contrary to Posner's thesis that law is not a discipline,
but a scholastic exercise in the humanities and social sciences. But law's distinctiveness
showcases doctrinal research as a peculiar methodology common to only core stakeholders in the
legal environment (judges and practitioners, academics and students). This is clearly discernible
in the variations characterizing the approaches of its different users. Thus, McLeod
compartmentalized the method into the practical and scholastic approaches; whereas Hutchinson
and Duncan divided it into the problem-solving, judicial and academic approaches.

Circumspectly, whichever approach is adopted for whatever purpose(s), there is a clear trend,
which certainly connects them that is recognisable by the legal environment’s core stakeholders.
The problem-solving approach is that which is known to law students and legal practitioners.
That is, hypothetical and/or actual legal issues are problematised and presented to students and
practitioners for solutions. Those issues instantaneously become the minor premises. The major
premises (embedded in the common law and statutes), are searched for in the legal texts and
applied to the issues, leading to the conclusion.

That of Judges (the judicial approach) is more rigorous. Contentious legal issues (minor
premises), concerning the rights and obligations of the disputing parties are brought to the courts.
The lawyers representing the parties, develop and apply their own major premises (the legal
doctrines in the texts) to the contentious legal issues (the minor premises), leading to their
conclusions, supported by the evidence and their own nuanced interpretations of the legal
doctrines. The Judges are then obliged to unpack the practitioners' major and minor premises,
together with their conclusions; while discerning those that are logically correct, but factually
wrong, from those that are logically and factually correct, guided by the doctrine of stare decisis
(binding precedent). The aim is to dispense justice and simultaneously developed the
jurisprudence. The scholastic approach is comparatively more rigorous and pedantic. Unlike

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Judges and practitioners, legal scholars are not bound to come up with specific answers to the
contentious issues they constantly grapple with.

Thus, they problematised (through ratiocination) institutional and jurisprudential issues, shaped
by their philosophical and theoretical orientations and inclinations; develop their hypothesis and
research questions; examine the literature (the secondary sources) together with the applicable
legal doctrines (the primary sources); and indulged in critical analyses, leading to emerging
theses, contributing to the shared-body of knowledge in specific legal contexts. For instance, my
decision to indulge in a second doctoral research was influenced by my philosophical and
theoretical perspective of pragmatism, which contextually presupposes a thorough exploration of
Sierra Leone’s legal regimes on communications rights, while examining their constitutional
guarantees in the context of intra and international law’s and simultaneously identifying the
regulatory constraints, militating against the realization of such rights, with a view to proffering
solutions, on how such constraints, can be potentially remedied, using African Union (AU) law
as a guiding paradigm.

Secondly, doctrinal research does not presuppose a review of the subsisting legal literature,
which concerns merely the secondary sources of the law; it rather focuses on the law and its
primary sources; and to a lesser extent its secondary sources (literature review). In fact, the
literature review is not a major segment of a pure doctrinal research, but it has always been part
of any credible doctrinal academic research, justifying its significance.

Thirdly, doctrinal research is bi-dimensional; it is a process that goes beyond a mere description
of the law. it entails the daunting task of locating the laws and analyzing them in specific
contexts. Meanwhile, two analytical perspectives permeate the interpretation of legal doctrines:
the categorical rule-based and standards-based or (proportionality) approaches. Whereas the
former concerns the interpretation of the legal rules as they are; the latter takes cognizance of
pertinent ‘legal principles’ in the interpretation of rules, but there are levels of convergences of
both perspectives. Essentially, this second stratum of doctrinal research, which is its crux,
requires an in-depth knowledge of the law, skills and professionalism of the researcher, to
establish credible legal outcomes that meet the threshold of validity and reliability in legal
research. This obviously entails the ability to link the principal thrust of the research questions to
the known body of law. So, the conclusion of any doctrinal research is shaped by the skills and
expertise of the researcher.

Fourthly, the challenge of connecting general principles of law from an inchoate mass of primary
sources, is key to doctrinal research. The general principles of law in common law jurisdictions
are rationalized in their constitutions, which are distillations of the fundamental ideals,
underpinning liberal democracies. The inchoate mass of primary sources is rooted in a welter of
statutes and common law doctrines. Doctrinal researchers are faced with the task of connecting
the general legal principles of law to the subsisting statutes and common law doctrines.
Invariably, they are challenged by the fact that in answering research questions in the context of

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doctrinal method, they are bound to resolve the challenges of different competing legal principles
at play.

Thus, the ability of doctrinal researchers to strike the appropriate balance, between the
competing legal principles, consonant with the facts with which they are faced is also crucial.

Fifthly, the mystique of the legal system’s simultaneous achievements of consistency and change
is as well relevant to the evolution of the common law. This development has been augmented
by the doctrine of stare decisis and the need for the Judges to distinguish judicial decisions, while
relying on the incremental approach. This has also strengthened the need for statutes to modify
the common law in instances that necessitate the need for change.

The Convergences and Divergences of Doctrinal Legal Research And Research in the
Social and Behavioral Sciences, and the Humanities

Nonetheless, another peculiar methodological consideration of doctrinal research, which cannot

be inferred from CALD’s foregoing statement, is espoused in Hutchison and Duncan’s thesis.
The scholars articulated the convergences and divergences of doctrinal research and other
methods in the humanities and social sciences. First, they argued that doctrinal research
encompasses aspects of both quantitative and qualitative research methods. Quantitatively,
doctrinal research is underpinned by positivism and a view of the World where the law is
objective, neutral and fixed (until it is amended or repealed). Meanwhile, the research involved
in locating the sources of the law can be easily replicated by other researchers, but the actual
doctrinal findings cannot be replicated, because they are based on the skills, expertise and
professionalism of the researcher. The authors also raised the question of whether 'the law
(legislation and judgments) can be categorized as data. Relying on McCrudden, they posited that
'law is not a datum; it is in constant evolution, developing in ways that are sometimes startling
and endlessly inventive. Thus, the legal pundits likened the second stratum of doctrinal research
(a clearly subjective process), to the qualitative dimension; and contended that the analytical
reasoning aspect of the doctrinal process is purely qualitative. They also established the
contradistinctions between doctrinal and historical research; whilst espousing their spheres of
convergences

--- Unlike historical research which seeks to find the truth through considering
the perspective and view of every actor whatever their social status or role in events and through
examining the whole conceivable range of data, doctrinal research for the most part focuses on
privilege voices’ (mostly that of legislators and Judges) ... The doctrinal researcher examines
primary sources in order to draw conclusions about what the law is in those instances where it is
not immediately self-evident from their sources. By contrast, the historical researcher examines
primary sources as evidence of fact...

The scholars further differentiated doctrinal research from content analysis, and also pinpointed
their spheres of interconnectedness. Methodologically, content analysis has evolved as a research

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tool that has its qualitative and quantitative dimensions .Quantitatively, it concerns the analysis
of texts in specific contexts, but this aspect quantifies content in terms of predetermined
categories in a systematic and reliable manner. However, it is the qualitative aspect of content
analysis that the authors said are cognate with doctrinal research, which emphasizes the role of
the investigator in the construction of the meanings of the texts. Therefore, content analysis in a
doctrinal sense, ‘--- includes the process of reading judgments, legislation and policy documents
as texts rather than reading for the substance of the law and legal reasoning. It is the process of
quantifying the use of words and examining the language, and not simply what is being said or
the meaning of the words in the first place… The examination of the language, one would add,
resonates with discourse analysis, which apparently strikes a chord with doctrinal research. So, a
typical doctrinal study essentially acknowledges the significance of the aspects of quantitative,
qualitative and historical research and content and discourse analyses. Inferentially, doctrinal
research is an amalgam and a synthesis of the research methods and techniques deployed in the
natural and physical sciences, the humanities and social and behavioral sciences. Arguably, a
seasoned doctrinal researcher is presumed to have had knowledge in the research methods and
techniques of the above disciplines.

THE CONTRIBUTIONS OF SCHOLARS IN THE NATURAL LAW SCHOOL

Now the question what is the nature of law we say has been approach differently by different
scholars belonging to different schools of thought in Jurisprudence. Now the first school of
thought we are going to examined.

The views of scholars in the natural law school are vast and eclectic. They are so broad that they
can be divided into three phases:

Phase one concern the birth and growth or rather development of natural law ideas.

Phase two concerns the challenges to natural law ideas leading to the decline of natural law.

Phase three concerns the revival of natural law. A thesis developed by professor Lord Finnis
of Oxford University in 1981.known as ‘Natural Law and Natural Rights’.

The Birth and Development of Natural Law Thinking

Natural law predated the study of Jurisprudence and legal theory. In other words, there had been
theories on natural law long before the systematic attempt was made by John Austin in 1832 to
publish his classical jurisprudential masterpiece in the ‘Providence of Jurisprudence
Determine’ for the formal beginning of jurisprudence. But long before that, philosophers have
made effort to develop the concept of natural law as the basis for human reasoning. Now at one

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point in time in human history nature appear to be very scary to the human being. Humanity did
not understand how the dynamics of the sources of nature work. It was hard to tell what the
factors were that would cause day and night, why is it that the sun rises from the east and set in
the west, why is it that there are heavily bodies. Man’s knowledge was restricted to what obtains
in space, not in outer space. So because nature was scary to the human race, the very first
attempts that were made by man to study anything was about the study of nature. The Egyptians
were very good mathematicians but they were not philosophers. And there were the theologians
who relied on religious explanations to explaining the dynamics of scientific phenomenon. And
in Islam and Christianity, scholars in these religions and other monotheistic or polytheistic
religion, Hinduism etc will tell you about nature based on their own religious perspectives.

LECTURE 5

NATURAL LAW

Definition

Natural law is an organic whole. It resonates with the universe and humanity. It is said to be the
natural order of everything natural. It is the thread of human rationality. It holds the systematic
order of nature together.

Before 1832, no systematic effort had ever been made by any jurist or philosopher or theorist in
any quarter to study the nature of law. But what is interesting about natural law doctrines or
natural theories is that, natural law as an approach to the study of the universe and of nature and
of humanity and of the orderly happenings of event and issues in the realm of humanity had
always been there. So natural law as a doctrine, as an approach to the study of law predated the
formal beginning of the subject jurisprudence.

In the beginning, what was been studied was principally philosophy. Knowledge had not been
compartmentalized. It behooves humanity then to concentrate on the study of nature, on the
study of the dynamics and forces of nature, on the study of the ordinary forces of natural
phenomena, on the study of man’s place in society. So, nature appears to be very scary to the
human race to a point that there were traditional, conventional explanations for the happening of

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things in nature. Now, the theologians build on those traditional explanations, shaped them and
give spiritual dimension to them about the forces of nature, about the dynamics of nature, about
nature itself, about man’s place in nature. Questions relating to those traditionally were rooted in
theological explanation.

Now philosophy originally came into being as a challenge to the traditional, conventional
explanations that humanity had developed to explain the underpinnings of natural phenomena.
Thales, one of the first pre-Socratic philosophers was said to be the father of philosophy and
eventually so many other pre-Socratic philosopher belong to the same exercise of studying
nature, of studying the forces of nature, of studying the dynamics of nature, of studying natural
order of things in nature, of studying human rationality and of studying man’s place in nature.
Those philosophers were called pre-Socratic philosophers because their focus was on the study
of nature which appear very scary to the human race. Thales, Anaximenes and Anaximander,
Pythagoras and others concentrated in providing explanation regarding the functionality of
nature. Now these were philosophers. Their approach to the study of nature was not empirical, it
was not scientific, but rather it was based on critical thinking, reflection and introspection.

So the philosophers challenged the original explanations of nature or about nature and came up
with theirs. Initially, they were condemned. But it came to pass as so many questions were being
answered, so different disciplines were born in the realm of philosophy. The first to be given
birth to were the natural and physical sciences, physics, chemistry biology, astronomy geology,
zoology, botany, etc. All of those emerged as explanations were given about the forces of nature.
And eventually we saw how geography also became a discipline that was born in the boom of
philosophy. So it was not the business of the pre-Socratic philosophers to rather explain man’s
place in nature. Their focus was about nature itself. So the methodology on the study of natural
law at the time and which is still the same old methodology is geared towards explaining the
dynamics of the forces of nature. Now just look around you, every other natural phenomena, you
will see how orderly it is organized and design and you will see that it moves towards specific
end and this is what Aristotle called teleology. That is every other thing that subsist in nature
has a predetermined end. Just as a tree, you sow a seed, it grows, it became a plant, it
blossoms, it gets to a point and it eventually dies away. Just as the human being, naturally the
human being is given birth to, the human being grows, get to a point in life and eventually dies
away. That things in themselves have what is known as predetermined end. That is the concept
of teleology. Simpliciter, one could say you see method but there is madness in the method of
nature. In other words, nothing subsists in nature that does not appear to be that
choreographically design and moving toward a particular definite end. Everything in nature is
orderly done. There is what is known as that orderly progression in every other force of nature
until it gets to it predetermined end.

The pre-Socratic philosophers who laid the foundation of the study of nature were much more
interested in the study of the dynamic of the forces of nature than man or man’s place in nature.
Remember man is a constituent part of nature. Man cannot live without nature, but nature can

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continue to subsist without man. Man is in nature. Man needs nature and nature needs man. But
the extent to which man relies on nature supersedes the extents to which nature relies on man.
Man can extinct. Animals can extinct as the dinosaur. But nature will continue to exist. Nature
had been there, is there and will continue to be there. Nature never comes to an end. The
Christians have confirmed that, the Muslims have confirmed that. The Christian text tells you
world without end, amen. So we said in as much as man’s needs nature, there is that symbiotic
relationship subsisting between nature and man. And man’s place in nature is paramount. Man
needs nature and nature needs man but the extents to which man need nature cannot be equated
to the extents to which nature needs man. So nature can subsist without man but man cannot
subsist without nature. Today we are talking about environmental degradation, environmental
pollution, global warming etc. Environmental law is a manifestation of natural law in the legal
text of men across the world community of nation.

As human being there is certain fundamental innate desires that we have that resonates with our
humanity. Those fundamental innate human desires are cognates with the natural law of life
which is live and let live, but the law of the jungle is kill or be killed But if we are to live and
let’s live then we must have laws that should allow us to copulates and Procreate for the
continuation of the lineage. So it is to give effect to the law of life which is the law of nature., is
a natural law ideal, hence the law against abortion manifested in man’s law particularly section
57 of the Offences against the Persons Act which criminalizes abortion.

The other law that resonates with nature concerns our collective security and humanity. Issues
relating to the protection and recognition of human rights, freedoms and liberty. Laws that
protect your financial, economical, natural resources. Any other thing that protect humanity
collective interest. If you look at the Ten Commandments, this is a manifestation of natural law
ideals. Thou shall not kill, thou shall not commit adultery, thou shall not bear false witness
against thy neighbor etc.

You study natural resources law, environmental law; all of these are rooted in natural law ideal
for the protection of man’s environment, for the protection of man’s resources. But can natural
law be used as a means of social control in a political community? Can you rely on natural law
as an instrument to maintain social control in a political community? Can you rely on natural law
as a mechanism for dispute settlement? Well if that is the case, is natural law, law? If you say
you cannot rely on natural law for the maintenance of law and order, for the enhancement of
social control, for the settlement of disputes, for conflict resolution, if natural law cannot perform
all of these functions then is natural law? Which effect has natural law had in the development of
the legal regimes of the republic of Sierra Leone for Example? Does natural law has any place in
our laws, why or why not?

So if we must answer the question we must first of all know what is natural law and which
functions does natural law perform in society. We do know that man made law is use as a
mechanism for social control. It is use as a mechanism for the settlement of dispute. It is a

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mechanism for conflict prevention. It can be use to protect our environment, our natural
resources, minerals and culture. If man made law performs all of those function, then if natural
law to be considered law then it must equally perform all of those function. If it cannot then there
is question as to whether natural law is law.

Every other law must have its potential sources. For example, the man made law of Sierra Leone
section 170 subsections 1 tells us that the fundamental sources of law in Sierra Leone are
statutes and the common law. And the common law in Sierra Leone is tripartite in content and
in structure. It is a trilogy, made up of the rules of law generally know as the common law, the
rules of law generally known as equity and the rules of customary law.

Now after the pre-Socratic philosophers who had concentrated in the study of the dynamics of
the forces of nature, a popular philosopher emerged in ancient Greece known as the great
Socrates. And J. S Mill in explaining the concept of utilitarianism as developed by Jeremy
Bentham in shaping it says “it is better in life to be a Socrates dissatisfied than a pig
satisfied”.

Socrates was an honorable man and has carved a niche for himself which is being felt across the
world. He was a soldier and after the war he became interested in not only on the dynamics or
the forces of nature, he was interested in man’s place in nature. So it was Socrates that single
handedly transformed the attention of philosopher. It was Socrates that transformed the study of
natural phenomena. The study of what is life, what is made up of life, how the forces or the
dynamics of nature work. It was he that diverted humanity attention from the study of the
universe and nature to the study of man and man’s places in mature. Socrates among other thing
was very much interested in the best form of life that is worth living for a human being. Socrates
was concerned about the examined life. In other words, to understand man’s place in nature
then you must first of all examined man’s life. Socrates was interested in knowing man’s place in
nature. That was the principal focus of his philosophy. According to Socrates he knew nothing
but was interested in knowing man’s place in nature. He was interested in knowing the best form
of life for a human being that is worth living. He developed what is known as the Socratic
approach, which is based on posing questions and eliciting answers from the person to whom
the questions are posed. And when the answers are given more questions are posed. The more
answers you give the more difficult questions are posed until it get to a point you will never be
able to say anything. Question and answer, this is the basis of cross examination in legal practice.
The Socratic Method was the basis of the Socrates approach. For Socrates the examined life is
tied to the concept of knowledge. It is upon knowledge more than anything else that the good
life depends. That it is only the man who knows what he is doing that can do what is right. For
Socrates things in themselves are not problem, the problem is with the way they are perceived.

For Socrates who came up with this approach in which his focus was to examined man’s place in
nature as man needs nature so he predicated his study on man’s place in nature on the Socratic
approach. And the basis of it is to understand man’s place in nature which is based on the

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examined life. So for Socrates the unexamined life is not worth living. For him knowledge
matters, it is upon knowledge more than anything else that the good life depends. His
methodology was geared towards exposing the mediocrity of people. Socrates debated with a
leading sophist in the market place. He exposed the mediocrity of the sophist by using a thought
experiment. The question now arises who were the sophists?

The sophists were very clever people. They will use very clever, seductive, attractive arguments.
Superficially you would fall for debates of those arguments but when you critically analyzed
those arguments you see they are seductive, misleading. That is the approach the sophists use in
giving knowledge to society at the time. The sophist could charge exorbitantly high fees for
knowledge which they could give to people. Only wealthy people had access to the knowledge of
the sophist. They could teach the children of the wealthy, of the affluent in speech writings, in
philosophy, in some amount of logic and oratory. But Socrates found out that these sophists were
very wicked and misleading people, who were not giving society the best of knowledge to
understand man’s place in nature. So that is why he started up with that pontification that it is
upon knowledge more than anything else that a good life depends. That it is only the man who
knows what he is doing that can do what is right. So he debated with one of the sophist in the
market place. The question was: Whether it is every immoral behavior that is sinful. The sophist,
without thinking properly, concluded in the affirmative. Socrates disagrees. He came up with a
thought experiment. He said, ‘your friend is disappointed by somebody he loves so much so he
decided to end his life. He prepared his knife to stab himself. Later in the day you came to know
that your friend wants to end his life (he did not tell you). You took away the knife and kept it,
and he began to search for the knife but did not see it. In the circumstance your behavior is
deceitful but it is not sinful; for you have prevented him from ending his life. So Socrates
defeated the sophist. The sophist was so disillusion and disenchanted and dissatisfied with the
clever argumentation of Socrates to a point he went and consulted the oracle as to whom the
wisest man on earth was, and the oracle responded to him, Socrates. When Socrates came to be
aware of the pronunciation of the oracle that he was the wisest of men, Socrates respond was that
it was so aware about the depth of his ignorance that was why the oracle said he was wise.

The other sophists whose arguments are relevant to the examined life which is cognate with
natural law are: Thrysymachus, Adeimantus and Glaucon, found in the Republic, a book
written by Socrates pupil Plato, books 1, 2, and 3.

So in books 1, 2 and 3 of the Republic Plato was giving an account of Socrates engagement
with the sophist as to understanding the concept of the examination of man’s life on the
unexamined life is not worth living, to understand man’s place in nature. Thrysymachus,
Adeimantus and Glaucon are very powerful sophists who were very influential at the time. They
engaged Socrates on the debate of the Concept of Justice, which is central to natural law
thinking and to the natural law thesis.

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When you go back to the philosophical or jurisprudential underpinnings of natural law, the test
for validity for any man made law is natural law, according to scholars of natural law. That for
them natural law presupposes a higher law above man made law, which is so higher that it
approximate with nature. And the test for validity of that law is Morality. And that morality is
rooted in the concepts of Justice. Which means any law that is made by men for the governance
of men in a political community that is in contravention of the ideals of justice is no law at all, is
invalid and must therefore not be obeyed.

So Socrates debated with Thrysymachus, Adeimantus and Glaucon on the concept of Justice
which is said to be the basis of natural law. For these three dangerous men there is nothing
like justice in society but rather it is the figment of the imagination of the powerful. It does
not exist as a concept but rather it is a concept that is created by the powerful reflecting the
figment of their imagination. That in any political community it is only the wealthy, the powerful
that will realized this ideal known as justice. That the poor man under any circumstance would
never realize the ideal of justice. So these men believe that you must help yourself with more
than what you deserve in society if you are to live a happier life. In other words, you must be
corrupt. Socrates disagrees with them. He said it is better for him to suffer injustice than to do
injustice to others. Because the man who suffer injustice does not corrupt his soul but the man
who ends up doing injustice is said to be the proponent of corruption. For Thrysymachus,
Adeimantus and Glaucon happiness is not only a sensual thing that is based on contentment, but
the external environment where one lives is said to be the basis of happiness. For Socrates justice
is sacred. The just life is the examined life. The reasonable life is the examined life. In other
words, the examined life is that which resonates with the ideals of justness, fairness and
reasonableness

So man’s place in nature begins with man recognition with justice as an ideal. Justice is the basis
of peaceful coexistence. It is the basis for truth. Truth, peace and justice are inseparable. It is this
trilogy that holds society together. In any society where injustice prevails corruption is the order
of the day. In any society where injustice prevails then man inhumanity to man is the order of the
day. So Socrates is saying that society is best constructed on the ideals of justice, on fairness and
reasonableness. An even a court of competent jurisdiction it is these ideals it gives effect to, in
interpreting and enforcing the law. How do you have a society wherein injustice is said to be the
order of the day. Do you expect peaceful coexistence to exist in that society?

SOURCES OF NATURAL LAW

There are two principal sources of natural law:

1. Scripture
2. Human reasoning

In the scriptures we are able to understand the theological approach to natural law.

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And from Human reasoning we are able to understand the philosophical approach to natural law.

TEST FOR VALIDITY OF NATURAL LAW

Natural law we said is based on the idea that every law that is made by men for the governance
of men in a political community must approximate to a higher law. And that higher law is rooted
in the concept of morality and that morality that is central to natural law manifest itself in the
concept of justice. Therefore, every man made law for the governance of men in a political
community must resonate with justice. If you have a law that is embedded in the common law
that contravene with the ideals of justice then that law is invalid and must not be obeyed.

So the test for validity, according to natural law tradition is that for laws made by men for the
governance of men in any part of the world to be valid then they must resonates with morality or
justice. Morality rationalized injustice. If you have any law in a political community whether that
law is common law, or statutes or customary law, if it is in contravention of the ideals of justice
then it is unfair, it is unjust and it is unreasonable and hence it must not be obeyed.

Justice is said to be the fundamental criterion for the validity of natural law. Therefore any man
made law in any part of the world that does not resonates with justice is unfair, unjust and
unreasonable and must therefore not be obeyed, according to Saint Augustine of Hippo in his
text The City of God. He established the fundamental criterion for the validity of natural law.

And issues relating to the features of natural law can be attributed to the pontification of Cicero
statement about natural law. Natural law is:

 Eternal
 It is immutable and
 Universal.

If it is eternal, meaning it resonates with humanity, with our conscience and with our rationality.
If it is Immutable it is unchangeable. If it is eternal, it means it is applicable across time and
space. This means natural law will never come to an end. It has universal applicability So these
are said to be the fundamental features of natural law.

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LECTURE 6

This ideal known as justice is the basis for the validity of man-made law according to scholars of
the natural law school. If the law is devoid of the principles of justness, of fairness, of
reasonableness, of good conscience then it is invalid. Justice as an ideal is central to governance
and justice has been according to scholars of the natural law school the basis for the validity of
law. Even one of the most popular jurists whose writing influenced the French revolution, Baron
de Montesquieu made it clear that the essence of law is justice. He was adducing a thesis closer
to the natural law thesis. But there are so many laws in so many political communities the world
over that really do not resonate with justice. For example Julian Assange in the year 2010
through wiki links put out contents incriminating American Forces in Afghanistan and Iraq,
indicating that they were committing serious offences. And the Americans felt he had
jeopardized the lives of US forces and security personnel. And he also put out some more
content indicating that the United States which is said to be the most cherisher of human rights in
the world’s community of nations was committing gross human right violations in Guantanamo
Bay. In Cuba, they had a camp there. Against that backdrop what is the essence of the
presumption of innocence principle? In the 1991 constitution subsection 4 of section 23 says
you are presumed to be innocent until you are proven guilty by a court of competent jurisdiction.

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But in Guantanamo Bay, those that were suspect who hadn’t even been charge were deprived of
their pre-trial, trial and post -trial rights and you called yourself a country that protect and
promote human rights. So that exasperated the Americans and they considered Assange
publications as a manifestation of a clear political attack. Assange was not only declared a
wanted man but was indicted by the United States. Proponents and apologies of Assange and
those who believed in the concept of free speech and media freedoms said it was wrong for the
Americans to condemn Assange and indict him for expressing a genuine free opinion when the
first Amendment of the United State Constitution concerns the protection of free speech, a
jurisprudent that the Americans had really developed. So for the statists in support of the
Americans Assange was a criminal or is a criminal that endangered the lives of Americans forces
abroad and the territorial integrity of the country. So therefore, Assange must be prosecuted. It
was but just, in the interest of justice for Assange to be arrested and prosecuted. And those who
were the supporters of the free speech ideal for them Assange is the world newest hero of free
speech. He went to the Ecuador Embassy in United Kingdom and was there for over ten years.
Because they are respectful of international law they could not have gone there to arrest him.
Subsequently, behind the scene negotiations took place and the Ecuador Embassy did not
consent for him to be there any more that was when he was arrested, and first tried in the United
Kingdom and was to be repatriated to Sweden for another allegation of rape

So you see how the quest for Justice divided people on ideological lines. For those who said
Assange is the world’s newest hero of free speech, they ruled using the rule of law to justify
what he did. For those who said Assange is a criminal they ruled using the rule of law to justify
the indictment. And for the others who are asking where do they draw the line as to where
freedom of expression ends, they are as well relying on the rule of law to clearly stipulate their
position. So the essence of law is tied to this concept of justice. That is why section 5 subsection
1of the 1991 Constitution makes it clear that Sierra Leone as a state is built on the principles of
freedom, justice and democracy. So justice is an ideal upon which the state of Sierra Leone is
constructed.

Why do you think you have elected representatives in Parliament to represent you as a
constituent in the law making process? Because democracy is all about three popular Cs.

They are:

 Consultation
 Consent, and
 Cooperation

If there is no consent there cannot be any cooperation.

So you see the centrality of justice to governance, more so in the democratic process where you
rely on consultation, you rely on consent and you rely on cooperation. It is said that Sierra Leone
as a state is built on the principles of Freedom, Justice and Democracy. Justice is not only central

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to law making. It permeates law implementation and also law interpretation. Law has to be made
with justice in mind. The reason why it is good to be just and must you must do justice to people
at all time, irrespective of tribe, color, race as long as they are a member of the human race in
society when relating with them, be just with them, this is simply because tomorrow the future is
hidden from man but known to nature.

The political realists are the shortsighted, the followers of the Thomas Hobbes and the
Machiavelli. When they want to come to power they preach political idealism. Political idealism
is based on give to Caesar what is for Caesar. Do onto others as you would want them do onto
you. So they preach justice as an ideal. Freedom, human rights, liberty, equality, these are the
things they preach. They would condemn ethno-regionalism openly in their manifestos during
the process of politicking. And when they get power, they abandon the idea of political idealism
on which platform they came to power and now put on the suit of the political realist and
political realist is about you getting state power by any means, whether democratically or
undemocratically. When they put on the suit of political realism, they start by saying there is not
like morality in politics. That politics is not about Justice, that real politicking is about power.
How I get power, how I use power and how I consolidate it. It is this political philosophy of
realism that drives them to sacrifice justice at the altar of bigotry. So they will deny you justice
in law making, they will deny you justice in law implementation, and they will deny you justice
in law interpretation.

The Thrysymachus, the Adeimantus and Glaucon are the one who told us that in order for one to
live a happier life in society we must help ourselves with more than what we deserve. For it is
only those people in society that help themselves with more than what they deserve who are the
happiest. And those people that help themselves with more that what they deserve who are the
happiest are only successful in that because they did not give to Caesar what is Caesar. So this
ideal known as justice that holds society together is not for sale and cannot be sold. If Justice is
for sale can the poor man buy? So why have you chosen to sacrifice justice at the altar of
political bigotry?

The reason why the law is underpinned by justice, the law is what protect you against the
onslaught of the wicked. That is why the law as an ideal must approximate to justice. if you
create an enabling environment wherein justice prevail, you allow the states functional institution
and structures to function in accordance with justice, you do not interfere with the administration
of justice, when you are not there you have nothing to fear for and you have nowhere to go. But
when you become a political realist, what covers you is the political power, when you are strip of
it you are empty and vulnerable. So this is the reason why justice is central to governance and
governance is about law. And the law making processes, the law implementation processes and
the law interpretation processes must be tied to this sacred ideal known as justice. That is why in
Sierra Leone we say the state is predicated on the ideal and foundation of justice. Justice gives
credence to the law of life. The law of life is live and let’s lives but the law of the jungle is given
credence to by political realism which is kill or be killed. So we have seen justice as the core

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structural architecture upon which natural law is constructed. So if you are to have man- made
laws that are valid for the governance of men in a political community then they must
approximate to justice. When they do not approximates to justice then the foundation for the
destruction of society is laid.

FUNDAMENTAL CHARACTERISTICS OF NATURAL LAW

Every other man-made law in any political community definitely has its own fundamental
characteristics. If you are to understand the fundamental characteristics of natural law then see
most prominent, valiant and salient contributions of Cicero to the natural doctrine. It is true
reason in agreement with nature.

The characteristics or features of natural law are discernible to the most prominent, valiant and
salient contributions of Cicero in the natural law thesis. His argument is that true law is right
reason in agreement with nature. Natural law which is true law in agreement with nature is
constant, i.e., across time and space. First, they say natural law is universal. Meaning, it is
applicable across time and space. As it was in the beginning, so it is now and ever shall be world
without end. Amen. This means natural law will never come to an end. It has universal
applicability.

Secondly, it is eternal. This means that it is innate with man’s nature. It is with man everywhere
and anywhere he goes.

Thirdly, it is immutable, meaning it is constant, unchangeable and applicable across time and
space.

According to the Bahai faith, in the beginning when there was no beginning and in the end when
there shall be no end, so is natural law, constant and immutable.

Natural law is universal, i.e., applicable across time and space. Irrespective of who you are or
where you come from, irrespective of where the political community is located, whether it is
South-East Asia, whether it is in North-West Asia, whether it is in Africa, whether it is in Europe
or Australia, natural law is objective. So that is why moral objectivism or universalism is critical
to natural law, discuss.

Natural law is deontological theory. Deontological theories are theories that really explain
rights from wrong as they are irrespective of their consequences. In another words, you do not
determine whether something is wrong or right outside its consequences. That is the position of
utilitarianism. It is about you determining the wrongness or rightness of your actions based on its
consequences. Meaning if the consequences are good then it is moral. But again how do you
determine goodness based on its consequences?

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So in the context of Jeremy Bentham’s ‘Utilitarianism’ is about the morality of actions
depends on their consequences. So in the context of Bentham’s philosophy is about doing the
greatest good to the greatest number.

So we are now seeing that natural law is not a philosophy of consequentialism. The philosophy
of consequentialism presupposes the justness and rightness of an action depends on the
consequences. If you do believe in the philosophy of consequentialism, your idea is that the
justness or unjustness of your action depends on the consequences of those actions. So if the
consequences are good, then the action has utility, choose it. But this is different from
Emmanuel Kant‘s categorical imperatives which came closer to deontological theory. The
ontology here presupposes that the rightness or wrongness of an action does not depend on its
consequences but the action is said to be deontological, moral based on your conscience of
morality. Now for example you are been chase by a thief who want to kill you and you come to
me and seek protection. I let you into my house, and the men chasing you come to me with a
knife, without even threatening me. If he asks me your whereabouts I must tell him that you are
in my room. The thief that was chasing you now will get you to come then I will have satisfied
my conscience of having said the truth.

So natural law is a deontological theory. It concerns the rightness of actions as they are
irrespective of their consciences. It concerns the wrongness of actions as they are irrespective of
their consequences. So that is the reasons why when you look at the characteristics of natural law
according to Cicero is that it is eternal, it is immutable across time and space and it is universal.
So natural law is a manifestation of moral objectivism and the philosophy of deontology,
discuss.

So when you understand these features of natural law then you will begin to understand Man’s
place in nature.

METHODOLOGY OF NATURAL LAW

In the earlier lectures we did say that the principal thrust of Jurisprudence and legal theory is
based on the research question what is the nature of law? In other words, anything which we are
concern with, in this module is about providing a clear and succinct explanation to the question
what is the nature of law.

Now this question appears equivocal and ambiguous. Those in the legal positivist school who
eventually developed the ruling theory which is today known as the philosophy of
conventionalism in legal philosophy. So in legal philosophy today legal positivism is known as
the philosophy of conventionalism. Those who belong to this school considered this research
question as one which was equivocal or ambiguous. Meaning it was not clear to attract a very
clear answer. So in other to answer this question they adopted what is known as the separation

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thesis approach. To answer the research question what is the nature of law, adopted the legal
positivist approach.

However, those in the natural law school did not rely on the separation thesis approach. But
rather they adopted the non-separation thesis approach to answer the question what is the
nature of law. They said for any phenomenon to be considered law it must be fair, just and
reasonable. So if it is neither just nor fair and not reasonable then it is not law. They did not
attempt to separate what is law from what is a good law. Whereas the legal positivist or
conventionalist that developed the ruling theory, in answering the question what is the nature of
law said it is a question that is ambiguous, complex. To answer it, they said it is but proper to
collapsed it into two. First you answer the question what is law and then you come now to
answer the question what is a good law. So in answering that question for them, they developed
what is known as analytical jurisprudence. That is what John Austin called Analytical
Jurisprudence. And his predecessor Jeremy Bentham calls it expositorial jurisprudence. It
concerns the question what is law. The first bit that answered what is law is handled in the
context of what is known as analytical or expositional or expositorial jurisprudence. That is for
the legal positivists, specifically Jeremy Bentham and John Austin.

And for the other bit of the question, they developed what is either known as normative
jurisprudence for Austin and Censorial Jurisprudence for Bentham. So this separation thesis
guided their analysis of what law is. This is the reason why that approach ahs today be the most
influential approach, as it was subsequently developed by a number of scholars including Hans
Kelsen and eventually Professor Herbert Lionel Adolphus Hart who is said to be Hans
Kelsen explains. Whereas Kelsen indulge in an exercise in logic to explain the concept of law,
H.L.A Hart indulged in an exercise in linguistics and descriptive sociology to explain the concept
of law. And with his death, Professor Joseph Raz has assumed the mantle. But in between and
Professor H.L.A Hart there was Professor Ronald Dworkin who died in 2013. He had
Professor Joseph Raz written quite a number of works particularly “Taking Rights Seriously’
and ‘Laws Empire’, in a bid to condemned the legal positivists approach which had become so
conventional at his own time. He wanted to establish that even that approach to law was
incomplete.

So what you need to understand is that the scholars in the natural law school did not adopt the
separation thesis approach as those in the legal positivists’ school to answer the question what is
the nature of law.

Those in the legal positivist school say the question is complex. It cannot be answered as it is. So
therefore you must divide it in answering the first bit of it, what is law and then the other bit,
what is a good law.

so these natural law scholars adopted the non separation thesis approach. They did not consider
the law as it is as different from the law as it ought to be. So their non separation thesis approach

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got them to come to the conclusion that any phenomenon that is said to be law must be just, fair
and reasonable, which means if it is neither just nor fair and not reasonable then it is not law.

SOURCES OF NATURAL LAW

Scholars of the natural law school that have adopted the non-separation thesis approach say that
there are two fundamental sources of natural law. These are:

1. The Scriptures
2. Human Reasoning

Now the questions arises, are we really sure that we can discovered natural law in the scripture?

The scripture condemned adultery, Murder, theft, etc. The laws of serious are positive law. Law
made by Sierra Leoneans for the governance of Sierra Leone. So if positive law has it sources
then natural law must have it sources. And if natural law is indeed law then it must perform the
same functions which man made law performs. The question which is asked at this stage is this,
is an unjust law a law?

We know what the sources of law in Sierra Leone are. And we know where to locate those
sources. Section 170 of the 1991 constitution. And we do know what function that law performs
in Sierra Leone. And we do know that law perform central place in Sierra Leone and perform
unique functions. So which means if natural law is law then the function that man-made law
performs must also be performed by natural law if it is to be considered law.

Further, is an unjust law meant for the governance of men in a political community a law?

It is a law but it is a bad law. Is a bad law a law? What makes a bad law a law?

If it is made by a legitimate or legally constituted or recognized authority. So when you talk

about the authority, the legality and validity of law as long as they meet those thresholds, even if
they are bad they are law. But the natural law scholars will not agree with you. The natural law
scholar will say an unjust law met for the governance of men in a political community is not law.
Because any law that is devoid of the ideals of justice is no law and must not be obeyed. But that
thesis again is been subjected to criticism.

If natural law is scriptural as the first source, to what extent can it be said that indeed the
scriptures are a reflection of natural law? By scripture here do we mean every other religious?
What about the religion we had in Sierra Leone in the 1990s called ‘Ardenabahesor’, which
believed that in the absence of the husband, his brother can sleep with his wife.

The other question is which religion that really has the scripture that we can use to discern
natural law? So are we saying in the context of Sierra Leone, it is only in Islam and Christianity

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that we can discern natural law through there scriptures? Are there not other religion like the
Bahai’s, the Hindu’s, and many other religions? So if that is the case since we do not know
which scriptures we can discern natural law from, can we say that the scriptural approach as a
source of natural law is not one that must be accepted?

In the name of religion, millions of people are killed and have been killed. Religion is presented
to us as if it is something divine. The question is how do we know scriptures that are divine from
those that are not divine?

The bible set itself a test which we must follow. If we are to accept the bible as a scripture from
which we can discern natural law. The Quran itself set itself a task that guides us through a
particular method to determine the validity scripturally. The Quran says produce your proof if ye
but speak the truth.

The bible says prove all things and hold fast to that which is right.

We said natural law has a inseparable triplets, vis a vis Justice, truth and peaceful coexistence.
So now the bible itself is relying on the concepts of truth, one of the triplets to justify it
authenticity. Same as the Quran. Another question is, if we say it is only Islam and Christianity
that has Scriptures that are divinely inspired, are we saying that other religious scriptures that
have messages that are similar to what is in the Quran and the Bible are not scripturally inspired?

For example, the Hindu’s. Hinduism is said to be the oldest religion in the world. And it has its
own religious doctrines. The Hindus believe in birth, death and rebirth. And there most sacred
texts are the Sutra and the Bhagavad Gita etc. these are texts that the Hindus will tell you are
divinely inspired. So for the Hindus you can discover natural law through these scriptures.

But the Muslim and the Christians do not accept that Hinduism is a divinely inspired religion. If
natural law is universal and religion is said to be a source of natural law, why should the
Muslims and the Christians do not accept the religious texts of the Hindu that says something
that is similar to their believe?

For the Jews that practice Judaism, their believed is rested in the Torah. And there is no
mentioned of Christ in the Torah. And they were promise a messiah, after Moses. For the Jews
Christ was not the legitimate child of Mary. He was an impostor. But the Muslim believed that
Christ was one of the mightiest prophet sent to the Jews in Suratul Maryam. That was where the
Muslims defended Christ and his mother, Mary. So for the Christians, Christ had no earthly
father. He was God incarnate, according to their doctrine in the Trinity, God the father, God the
Son and God the Holy Spirit.

We say natural law are to be discern in the scriptures. The question we are now asking as jurist is
which scripture? Because natural law scholars do not specify the scriptures they are taking about.
And we know there are religions that have scriptures. And there are those that are known as

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polytheistic religion. Those are religion that worships many Gods. And there are those that are
monotheistic. These are the religions that worship one God. Now there four living monotheistic
religions in the world vis a vis Judaism, Christianity, Islam and Baha’ism. They all have their
scriptures. And the Hindus that worship multiple God have their scripture. Now what is common
among these scriptures are said to be those ideals that are discernible from the scriptures in the
contexts of natural law. But how can we agree on that when if indeed God is one why is it that
we do not have the same set of scriptures that carries the same message that we must rely on
from which we can discern natural law? Why is it that each of these religion has its own believes
and its own doctrines?

As there different strands of natural law so there are different religious underpinnings that relates
to natural law.

The reason why I think the scriptures are said to be a source to natural law is that to a very large
extent much of what is written in the scriptures resonates with human rationality, resonates with
humanity quest for justice, for peaceful coexistence and for truth. But remember, because there
are variances in believes we are faced with problems as to which specific we must considered
scripturally inspired or ordained.

Now one of the reasons why I would say that the scriptures particularly the bible and the Quran
and to some extent the Bhagavad Gita contains some natural law doctrines is the extent to which
science theology had developed to a level that there are a plethora of facts, plethora of statements
in those scriptures that have turn out to be proven scientifically factual. For example, Dr.
Maurice Bucaille is the author of the Quran and modern Science. He is as well the author the
Quran, the Bible and Science. He was about establishing scientific truth confirmed by religious
scriptures. So using the bible he was able to identify a number of scientific proves which the
bible spoke about that have turn out to be factual. So in this context we could say those facts
about religious scriptures that have turn out to be scientific truth and those facts of religious
scriptures that really resonates with our sense of rationality, we must believe to be sources of
natural law.

Now again if you study the Quran, according to Dr. Maurice Bucaille ‘the Quran and Modern
Science’ and if you read Ahmed Deedat ‘Al Quran the Miracle of Miracles’ you would see the
extents to which these scholars have been able to rely on Quran facts to justify certain things that
science have come to prove right. So the question that the Muslims would ask is that this man
who is said to have forged this scripture did not go to school. He is an illiterate who could neither
read nor write. How can he told have told stories of scientific fact that modern science have
come to verify. For example, there is a verse in Suratul Yunus wherein Allah says that he will
preserve the corpse of King Pharaoh when he died in the red sea as a sign for the last member of
the human race to see, for humanity is heedless of a sign. If you go Dr. Maurice Bucaille’s text
‘the Bible, the Science and Quran it is there and ‘the Quran and Modern Science’ it is also there.
Dr. Maurice Bucaille was a surgeon in the French academy of medicine. He was very much

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interested in using science to prove religious fact. Now he wanted to establish whether the
remains of king pharaoh was the pharaoh that died in the red sea in the Old Testament. He could
not have relied on religious explanations or doctrines to prove that but rather on science. The
methodology he used is known as the carbon 14 dating method. Now when living organisms’
lives he takes in what is known as oxygen and gives out carbon dioxide. Now when you live the
oxygen that you take at death does not go away from your remain. The period within which the
oxygen was taken remains there. So Dr. Maurice Bucaille subjected the remains of Pharaoh to a
pure scientific test and was able to establish that the oxygen that was in those remains must have
been taken in about the same period that Moses existed. On his visit to Saudi Arabia at a
conference held on the extents to which Science establishes religious facts he was shown the
verses of the Holy Quran in which Allah say he will preserve the remains of King Pharaoh. I do
agree with the Born again Christians because their beliefs resonates with human rationality and
sense of logicality. The Born again do not accede to the verse in the bible that says let him drink
and forget about his problems and remember his miseries no more. They belief that alcohol
contaminate the soul. They want to remain pure, so they do not see the reason to drink alcohol.
Scientifically, it has been establish that the level of toxicity of alcohol for the system is high. In
Suratul Maidah in the Holy Quran Almighty Allah condemned alcohol by saying ‘most certainly
intoxicating drinks and gambling, idols and divine arrows are the handwork of Satan’s act;
therefore, leave them aside that ye shall prosper.

So if we are saying that the Scriptures are a source of natural law, we have to be careful because
there are other religious scriptures that have contents that do not resonated with human
reasoning. So we can say those religious scriptures found in different texts that resonates with
human rationality could be a source of natural law.

LECTURE 7

Regarding sources of natural law, there are two core approaches to natural law. These are:

1. The theological approach

2. Philosophical approach

THEOLOGICAL APPROACH
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According to the natural law doctrines, the theological approach is the idea that natural law is
discernible from the scriptures. Which means the scriptures are a source of natural law.

EVALUATING THE THEOLOGICAL APPROACH TO NATURAL LAW

Now if we say natural law is distilled from the scriptures, then it means the scriptures themselves
are divine or divinely inspired. If the scriptures are divinely inspired then it means they are
ordained by God. So this means, the scriptures are God given. So this raises the question from a
philosophical perspective if at all there Is a God.

Now we say the state is the law giver, the state give a law through parliament as stipulated n
section 73 (1) of the Constitution of Sierra Leone Act No. 6 of 1991. We say parliament is the
only institution that makes and unmakes law for the peace, security and good governance of
Sierra Leone. So which mean indeed Parliament is existing as an institution that makes and
unmakes the law for the good governance of Sierra Leone. So we know the legitimate source of
law for the governance of Sierra Leone as a political entity or a political community is
parliament. So if we say the scriptures are divinely inspired, that is they are given by God that we
can distill natural law from the scriptures, and then we must be able to answer the question
whether in fact the scriptures are divinely inspired in the first place. And if they are divinely
inspired who is this God that inspires the scriptures. So this raises the question whether God
exists. If we are to agree that the scriptures are divinely inspired then we must established who
this God that inspired them. There are arguments for and against God’s existence. So if the
question is asked does God exist? This is a metaphysical question in philosophy.

In philosophy there is a branch known as metaphysics which is the broadest components of

philosophy. It is divided into three branches. It is made up of:

1. Ontology
2. Metaphysical psychology
3. Epistemology

Ontology concerns the questions of being. Whether God is a being. If God is a being then he
exist. Whether this issue of life after death.

Metaphysics basically studies transcendent realism. In other words, if you are to understand the
concepts of transcendent realism, these are reality that subsists only in the metaphysical world.
You cannot discover them through sense perception.

Epistemology deals with the question of knowledge. If I say I know that God existence then I
must have evidence to prove convincingly that God exist. If I am an empiricist then I must have
knowledge which is communicated to me by sense perception. Those in the empirical school
who believe in physical evidence from the physical world to prove whether God exists or to
prove anything, those who believe in eliciting evidence from the physical world to prove

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everything they are known as empiricists. The empiricists believe that they known nothing. For
truth is in the dark, for that which they know is that which they can perceive and if they cannot
perceive it then it does not exist. The empiricists rely on sense perception. You will never be
able to convince the empiricist if you are relying on your scriptures as to the existence of God,
because you will be committing a fallacy of argumentum ad verecundiam.

So the question is can you see God or have you seen God? The interpretation which you give to
that which you sense is your sense perception. So sensation, asked the question I know that God
perceptions are concepts that are crucial to knowledge.

If I asked the question does God exist? Most of you will rely on your scriptures. But it is the
scriptures that you are relying on the authorities that relying on that I am doubtful of. In logic it
is a fallacy in logic known as argumentum ad verecundiam , which means I rely on an
authority and I am convinced about what that authority is or says, because that authority says so
therefore it must be the truth and nothing but the truth. But this itself is fallacious, for the bible
tells us that ‘prove all things and hold fast to that which is right’. The Quran says ‘produce
you prove if ye must speak the truth’.

In answering the question does God exist? And you rely on the scriptures which the natural law
scholars had relied on by saying that natural law is divinely inspired. If it is divinely inspired, we
must first prove the source of this divinity. Meaning, it is coming from God. If we establish that
God exist, then our next target is to establish whether it was he who revealed these scriptures. If
we established it was he who revealed these scriptures, we must establish which scriptures did he
really revealed. And if we answer that question in the affirmative then we can now rely on that
scripture as a source of natural law. But if we first of all cannot establish whether God exist then
there will be no need to establish the validity of the other statements.

There are those in the other end of the pendulum, these are the rationalist. For the rationalist
philosophers, there are school of thought is known as rationalism. For them they do not believe
that knowledge only comes through sense perception. For them sense perception is one of the
means of acquiring knowledge. There are sources of knowledge that you cannot discover through
sense perception. Remember the empiricist says he knows nothing for truth is in the dark.
For that which you know is that which you can perceive, if you cannot perceive it then it
does not exist.

So the rationalist says yes to some extents I do agree with you, knowledge comes through sense
perception. But sense perception is not the only source of knowledge. There are other sources of
knowledge that you cannot get through sense perception. In other words, there are certain things
that exist in the world that are non physical. You cannot rely on your sense perception to
discover them. These things that are non physical they are in the metaphysical world. You do not
rely on sense perception in that part of the world to discover things therein. So the things that
exists in non physical world, in the metaphysical world they transcend our senses. So these

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things are called transcendent realities. And then the empiricist asked a question how do you
discover them? And then they reply that you can discover these realities that are non physical not
through sense perception but through critical thinking, through reflection. You need to meditate
thoroughly, you need to meditate critically, and inwardly analyze what you ever you indulged in
then you can discover them.

The world is divided into two natures. You have the first and the second nature. The first nature
is that place that provides the basis of existence in the second nature. Whatever things that exists
in the second nature, according to the rationalist the ideas that culminated into the development
of these things that we have been using in making life comfortable for us in this second nature
emanated from the first nature. For instance the idea of this phone itself came to those who
could think well, who could spend sleepless night thinking about innovating, that would have the
ability to go into the first nature to discover the idea of the phone, and they would now come sit
and manufacture the phone for this nature. which means had they not gone into the first nature to
discover that there is something call phone that exist there, they would not have had the idea to
come and make it. So it is this idea that the theologians rely on to convince humanity that God
exist. So for the metaphysician, who is a rationalist, he believes that God exists in the
supernatural world. That God himself is a manifestation of this transcendent realism, that cannot
be discovered through sense perception but God subsist in the metaphysical world and he said to
be omniscient, omnipotent and omnipresent. If he is omniscient, meaning, he is all knowing.
Ever other knowledge comes from him. So it is he that inspires those who had created the
necessary for the physical world and one of the things that he inspired was the scriptures that he
revealed to these inspired men. It is not every man that really has the ability to go into the first
nature to discover necessary for the human race in the physical world but only a selected few.
The prophets, sages, religious clergymen etc.

There are three stages/categories that the human being goes through in life. They are:

1. The animalistic stage

2. The intellectual stage
3. Spiritual stage

The animalistic stage is all about the material means of man such as Food, clothing, shelter,
water, sex, wealth, power, status, recognition etc.

The next stage that the human beings will go through is that of the intellectual stage. At this
stage of intellectualism, there you find the philosophers wherein nothing material is about to
them. They do not tie their status to material things. The euphoria of happiness is not tie to these
things, such as power, wealth, status, recognition etc. Diogenes is an example of such man who
belongs to this stage.

The last and final stage is the spiritual stage. Where you find highly enlightened spiritual people
who will not have anything to do with this world, such as Rabbi, Jesuit priest etc.

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So which means, if we say we are empiricists then it will be hard for us to discover natural law
through the scriptures.

ASSIGNMENT

ANSWER THE FOLLOWING QUESTIONS.

1. Does God exist?

2. Is natural law really divinely inspired?
3. Can natural law be discovered from the scriptures?

The question does God exist will require you to answer for or against God’s existence.

THE STRANDS OF IDEAS THAT CULMINATED IN THE DEVELOPMENT OF

NATURAL LAW THEORIES

LECTURE 8

By strands of natural law we basically mean the ideas of different philosophers throughout
history that have culminated in the natural law thesis. The natural law thesis is so much
convoluted, it is so much complex as a doctrine to grasps because the ideas are seen in the trend
of thought of different scholars across time and space.

SOCRATES CONTRIBUTIONS TO THE EVOLUTION OF NATURAL LAW

It cannot be denied that Socrates contributed to the natural law thesis. His focus about
philosophy is about man’s place in nature. And the study of Man’s place in nature is crucial to

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the natural law thesis. For Socrates the unexamined life is not worth living. That the best way to
understand man’s place in nature is to first of all indulge in examining man’s life, for it is the
examination of one’s life that will depicts to you your place in nature. For him knowledge itself
is virtue. For without examination the self is undiscovered. For the unexamined life is not worth
living. This is what JS Mill coined in the maxim as “it is better to be a Socrates dissatisfied
than a pig satisfied. This means that the Socrates dissatisfied has examined himself and has
discovered himself and has known his place in nature. And in this process he arrives at the
conclusion that there are certain virtues that are essential for his eternal happiness. Those virtues
are as well essential for the development and progression of society. In other words, when these
virtues are given effects to at the macro Level, that is society at large, then society is bound to
enjoy the euphoria of peace. There will be peaceful coexistence; there will be stability,
progression and development. And if these virtues are internalized then one is bound to have
eternal peace. The whole essence of you discovering the self through self introspection,
examination, is to discover the law of life. The law of life is live and let live.

The virtues that Socrates advocated for that are essential for peaceful coexistence are the
inseparable triplets. These are:

1. Justice
2. Peace
3. Truth

The status quo at the time was corrupt. It was one that was unjust; one that was underpinned by
unfairness and unreasonableness in the highest order. The most influential people then were the
sophist. And sophistry is a branch of philosophy that concerns deception. It is an approach to
philosophy which is very attractive, seductive but delusional. The sophists were the scholars who
provided education for the wealthy of society; those in the upper echelons of society. They
would charge very high price in exchange for knowledge. But the sophists believe in the
philosophy that there is nothing like justice in society but rather it is a figment of the imagination
of the powerful. So for them, for you to be happier, you must always be prepared to help yourself
with more than what you deserve. So if you are corrupt and you are helping yourself with more
than what you deserve then you can get the happiness that you desire.

Now Socrates was dissatisfied with this perceptive, for him to understand man’s place in nature,
you must discover the undiscovered self. And the undiscovered self is the person that lives the
examined life. For the unexamined life is not worth living.

For Socrates, there are certain virtues that man must imbibed at the micro, psychological and
individual level. And these virtues if they are prevalent in society at the macro level society will
be at peace. The euphoria of natural which is live and let live will be enjoy by all. The milk of
human kindness will flow across the human race.

First is knowledge.

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For Socrates, indeed knowledge is virtue. It is upon knowledge, more than anything else, that
the good life depends. That it is the only the man who knows what he is doing that can do
what is right; that things in themselves are not problems but the problem is with the way
they are perceived. For Socrates, death in themselves is nothing terrible, otherwise it would
appeared so to Socrates. That wealth, power, status, recognition are the basis of human
retrogression and that happiness, under any circumstances must not be tied to them. He taught
the youth that they must seek knowledge and promote virtue. And when you search for the virtue
of knowledge, it is that which critical thinking, reflection and introspection that will lead you to
discover that higher form of morality which manifest itself in natural law, constitutive of justice,
truth and peaceful coexistence. The youth would go home and question their parents. They
stopped going to the sophists, Socrates became a very popular person as somebody very
knowledgeable. The sophist consulted with the oracle as to who the wisest man on earth was and
the oracle responded Socrates. And Socrates respond was that they said he was the wisest of
men on earth because he was very much aware of the depth of his ignorance. But he believed in
knew nothing and that he had nothing to give. He developed the Socratic approach which is
based on question and answer, and that is what is known in modern legal practice as cross
examination. The whole essence of cross examination is to ascertain the veracity of the evidence
elicited under evidence in chief. So he would pose a questions and request for answers. When
one answers the question, he would then pose an even more difficult question from your answer.
So as a result of this, the status became dissatisfied. Socrates continued the task of conscientising
the youth and they were said to be rebellious: challenging the status quo.

In Plato’s Republic, book one; there is a dissension in the form of a debate, between Socrates on
the one hand, and Adeimantus, Thasymachus and Glaucon on the other hand. The latter do not
believed in the idea of virtue and justice. For them Justice is a figment of the imagination of the
powerful in society against the weak. They came up with a thought experiment which is known
as the “Ring of Gyges” This is the ring that makes every human being invisible. If you put it on
no one would see you and you are free to do whatever you want to do. So they said whosoever
puts on the ring would do everything selfish to please his selfish desires, not to manifest justice.
for them, the reason why we are afraid to manifest injustice is because of the consequences that
will befall us if we are seen or caught, otherwise we will do all and even more of those with
impunity. They gave an example that a ma puts on the ‘Ring of Gyges’ and usurps power, kills
the king and continues with the King’s beautiful wife. So their question is who on earth that
would pit on that ring and do not do anything wrong to satisfy his selfish desires? So
Thrysymachus, Adeimantus and Glaucon put forward the argument that it is better to be corrupt
than to be corrupt-free in that circumstance, because if you are corrupt, you are helping yourself
with more than what you deserve in society as that will make you live a happier life.

However, in response to them, Socrates said that it is better for one to suffer injustice than o do
injustice. Because the man who does injustice ends up corrupting his soul but the man who
suffers injustice does not, under any circumstances, corrupt his soul.

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So because the youths questioned their parents about their wealth, they were dissatisfied and
charged him with two counts of treasons. He was accused of corrupting the youths and
indoctrinating them. He was also accused of denying the existence of the gods. He was brought
up for trial. In his trial, he put up a masterpiece defence. It was a defence that was so passionate.
So clear that the prosecution had no case, by the time he was done. He exposed the ignorance of
those who had accused him. But yet they convicted him and sentence him to death to consume
the hemlock. After his trial, they offer him the opportunity to stop teaching philosophy and
conscientising the youths, they would pardon him, and he said he would rather die than stop
conscientising the people. When he was giving his final summing up, Socrates told the court and
every other person present that his children should be warned that they should never allow their
lives to be shaped by wealth, power, status and recognition. Should they attempt to live that way
posterity will judge them. Whiles in prison awaiting execution the following day by hemlock, his
disciplines came to him and told him to escape the injustice against him by the state; that the trial
was unfair, unjust and corrupt, otherwise he would not have been during his convicted. But
Socrates refused and said to his discipline that it is better to suffer injustice than to do injustice.
Because the man who does injustice end up corrupting his soul and the man who does not do
injustice lives a happier and contented life. Now this came to known as the profound wisdom of
Socrates. In the morning, they executed him. He consumed the hemlock and died.

LECTURE 9

PLATO

Plato was a pupil of Socrates alongside Antisthenes. Antisthenes was also another influential
students/pupil of Socrates who eventually influenced Diogenes. And Diogenes took Socrates
idea to the extreme. So that is why to a very large extent some philosophers have regarded him
as the Socrates that went mad.

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The concept of justice is as well center to the philosophy of Plato in relation to the concept of the
Allegory of the cave. Plato was a rationalist philosopher who believed in the concept of Justice.
When you look at Plato most influential works to legal philosophy you will definitely single out
(1) the Laws, and (2) the Republic.

In the Republic, Plato spoke about governance at both the Micro and Macro level. At the micro
level, we are talking about psychological level. At the Macro level, we are talking about
sociological level. The whole essence of natural law is to give credence to the ideal of justice

For the governance of men in a political community Plato spoke about the importance of the
concept of justice in his thought experiment. In his thought experiment of the Allegory of the
cave, his argument is that the vast majority of human beings in society in general are not
enlightened. They are not enlightened because they have not been able to discover the
undiscovered self. They are not enlightened because they have not been able to journey in to the
first nature to discover realities that you cannot discovered through sense perception. This is
what makes Plato a rationalist and not an empiricist.

For the empiricist it is everything that we have come to know in pure epistemological terms can
be discovered through sense perception. That is they do not know anything. For what they
known is what they can perceive. If they cannot perceive it, then it does not exist. That is not
the school of thought that Plato belongs to. For Plato that argument is guilty of a naïve
philosophical miscalculation. In that, philosophically there are so many things that we will come
to know that exist which you would not know they exist through sense perception, but through
critical thinking, reflection and ratiocination. His argument to prove this, he developed what he
called a thought experiment known as the “The Allegory of the Cave”. Imagine there was a
prison, and in this prison everybody in there is cut-off from what obtains outside the prison.
Meaning you cannot see, you cannot taste, you cannot touch, and you cannot hear anything
outside the prison. One day, one of these prisoners is taken out of the cave. When he was in the
cave the only thing he could see were shadows of everything that obtain outside, just like every
other prisoner that was in the cave. But when he was taken out of the cave to the actual physical
world outside the cave he was able to see the realities of all the shadows that he had seen while
in the cave. After having perceived the shadows in the cave in a different way whiles he was out
he was able to see them the way they were. And when he was brought back to the cave his
perceptions, his ideas and thought processes were different from those who had never been out of
the cave.

So he was illustrating this point that the vast majority of the human race could not know that
there are certain things that exist out of the physical world that you can discover through critical
thing as opposed to sense perception. He said the first nature provides the basis of existence in
the second nature. Everything that you see here on planet earth which is making us convenient,
be it your bag, phone, bed, table, chair, every other thing that subsists in the physical world has
its own existence in the metaphysical world. That it is only person that are able to journey into

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the metaphysical world that will discovered those realities that you cannot discovered through
sense perception. And he calls those realities transcendent realities, or transcendent realism.
They go beyond the human senses but through critical thinking you can discovered them. The
human being came to know on planet earth that a smart phone is important for this second nature
because the idea of the smart phone itself that you have here exist in its physical form in the
metaphysical world. It is only people who can think and meditate thoroughly, contemplate
critically and inwardly, analyzed issues that are able to discover them. Such as the philosophers,
the saints, highly spiritual people. So the Allegory of the cave is a thought experiment that
reflects what obtains here. The empiricist who thinks that it is only when you are able to perceive
with your sense perception that you can discovered knowledge. But metaphysics as we have
established have gone beyond the study of realism in themselves as to the physical world. The
vast majorities of the human race are like the prisoners in the cave. Every other thing they seen
relying on sense perception. They merely see the shadow, the illusionary shadow of the realities.
They do not have the ability of that prisoner who was taken out of the cave to see realities in
themselves.

So the Allegory of the cave thought experiment is there to shape your understanding of the
concept of justice. If you say that justice is something that is a figment of the imagination of the
powerful. It does not exist then you are coming from that empirical perspective which is not
right. But they are saying that justice in itself exist but it only exist in the metaphysical world and
it is only those person who are able to journey into the metaphysical world, into the first nature
that can discovered justice in itself. That is why natural law is define as an higher law above
man-made law which approximate to a higher law and that law itself which is the threshold
for the assessment or the validity of man-made law is rooted in morality and that morality
manifest itself in the concept of justice. So when you have a man-made law which is in
contravention of the ideals of justice, according to Saint Augustine of Hippo, it is no law
therefore it must not be obeyed.

Plato emphasis the concept of the Philosopher King that society itself, when we are born we
belong to three different categories. There are those who are natural born to be workers. They
work for the collectivity of society at every point in time right through their lives. They would
give their all for the betterment of society.

There are those who are physically strong, that have the ability to defend society at any point in
time. These are those who must be trained to be warriors, in contemporary terms, soldiers. That
defends society against internal and external aggression.

There are those who are naturally born to be rulers. And these rulers are said to be the
philosopher kings. The most enlightened people of society. So he went further to say if society is
to be governed by one man, he must be the most enlighten of the enlightened. So what Plato is
saying is that in order for society to be fair and just it is better for every other person that belongs
to any of these categories to concentrate in doing that which he does best. And at birth you must

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separate those who are destined to be leaders from their families. You must not allow them to be
brought up by their families for that sentimental attachment not to be developed. They are
brought up separately and they are given the rights proper and genuine education in accordance
with the concept of justice. So that when they assumed the throne of power they would do justice
to all men, irrespective of all races, tribes or anything, because there is no sentimental
attachment.

Now laws are made by men for the governance of men in a political community. When you have
a political community that is governed by philosophers’ kings, the most enlightened of society
who are groomed and trained to governed, having imbibed the philosophy of justice will be more
than prepared to do justice to all men. And the laws that would be enacted will be in accordance
with the ideals of justice for the governance of men in that political community. So you realized
that the inseparable trilogy of truth, justice and peaceful coexistence will prevail in society. This
idea is very important to the natural law theory because the ultimate ideal of any law according
to the natural thesis is justice. And even legal positivist to a very large extents believed that laws
must be made to give justice as an ideal. But that does not mean that laws that are in
contravention of the ideals of justice are not valid.

Laws that are met for the governance of men in a political community that contravene the ideals
of justice are valid laws if they have been made in accordance with the legitimate law making
processes. But this amount to the corruption of law, according to Professor John Finnis of
Oxford University in his revival thesis of natural law, “Natural law and natural rights”.

So you see how Plato’s idea of rationalism, you see how his idea of the Allegory of the Cave in
his thought experiments, how the idea of the concept of the philosopher king in terms of
governance, how they resonates with this ideal known as justice. And today even the
Constitution of Sierra Leone, Act No. 6 of 1991, uphold the ideal of Justice. Section 5
subsection 1 made it clear that the state of Sierra Leone is founded on the principles of freedom,
justice and democracy. And the state has established a plethora of institutions to give credence
to the ideals of justice. And according to the noble price winner Wole Soyinka, justice is the first
condition of humanity.

ARISTOTLE’S TELEOLOGY

There are a number of concepts in Aristotle’s work that are relevant to the natural law thesis.
These are:

1. Aristotle Teleology
2. Aristotle Golden Mean
3. The concept of Eudaimonia

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These are the three concepts that are relevant to justice in Aristotle’s work. for there is no way
you can discover natural law doctrines without referencing Aristotle’s work in relation to these
three concepts. And these three concepts are not unconnected with the golden concepts of justice.

All of these are to be found in Aristotle’s work ‘The Nicomachean Ethics’ and the writing on
Politics.

Nicomach was Aristotle’s son, he name that work after his son. Aristotle studied in Plato’s
Academy. Aristotle never met Socrates; it was Plato who was a disciple of Socrates. But
Aristotle was loyal to Socrates and to the study of Philosophy. He spent twenty (20) years in
Plato’s Academy philosophizing. In fact it was after the death of Plato that Aristotle established
his own Academy. He so much respected his mater but did not agree with him. (This is what
obtains in philosophy and this is the basis of the yoke of knowledge).

Now the idea of Plato about things that exist in the metaphysical world that transcend realism in
the physical world was an idea that Aristotle who spent twenty years in Plato Academy did not
accept. Whereas Plato is said to be the father of the philosophy of rationalism in the context of
Epistemology, Aristotle is said to be the father of Empiricism.

Aristotle did not believed in Plato’s philosophy of rationalism. He did not believe that there are
transcendent realisms that exist in the metaphysical world. Aristotle’s works are based on the
physical world. So Aristotle is said to be the first scientist, the first Empiricist. Aristotle’s work
ranges across different disciplines. In fact, his work on metaphysics came after his chapter on the
physical. ‘Meta’ ‘Physics’ after the physics. His work touch on biology, on physics, sciences,
political and moral philosophy, logic etc. every other central parts of logic was developed by
Aristotle. To most scholars of philosophy they are still of the view that Aristotle has been the
world most influential philosopher in the western tradition that ever lived. It was Aristotle who
developed logic as a methodology of evaluating argument, and also contributed to the evolution
of knowledge in the philosophy of logic. Aristotle work span across the natural and physical
sciences, moral and political philosophy etc.

Aristotle’s work we could analyze in his Nicomachean Ethics to distilled ideas that are relevant
to natural law. These ideas we have collapsed into three.

1. Aristotle Teleology
2. Aristotle Golden Mean
3. The concept of Eudaimonia

1. ARISTOTLE TELEOLOGY

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These three concepts are relevant to the concept of justice. According to natural law doctrines,
the ultimate test for the validity of law is found in the concept of justice. The concept of just
is a theory that relates to the concept of evolution. After having studied plants and animals
empirically, Aristotle was able to scientifically come to the conclusion that every other plant has
a predetermined end, just like every other animal has a predetermined end. For example, a seed
is sowed and it is watered, it comes into existence, it begins to evolve, it grows, it develops, and
progresses towards a predetermined end and it when it gets to this stage that it actualizes its
potential. In human being for example, even before the fetus biologically transforms into a living
object, there must have be copulation. It is the copulation that brings about the fetus, and then the
fetus undergoes certain stages for nine months and to procreation. After some times, the baby
start creeping, then, standing by himself, walking, grown into a man and finally died. So
Aristotle’s idea is that living organism has a predetermined end. And that predetermined end is
said to be the ultimate purpose for which that organism comes into existence.

HOW RELEVANT IS THIS IDEA TO THE NATURAL LAW THESIS

Justice itself is an ideal. For all to live in an environment in which we are relatively secured we
must strive towards this ideal. So the achievement of the ideal of any society or political
community is live and let live. And for us to live in an environment in which we are relatively
secured we must uphold this ideal of justice. If we are to uphold this ideal of justice then we
must give to Caesar what is Caesar. We must do onto others as we would want them do onto us.
So the idea of Aristotle teleology is an idea that is rooted in the quest for the predetermine end of
society which is geared towards upholding this ideal of justice. Hence this is an idea that is
relevant to the natural law thesis.

2 ARISTOTLE’S GOLDEN MEAN

Aristotle is of the idea that there are always two sides to every issue. That if you are to resolved
an issued in the context of morality it is advisable not to go to either of the extreme for that will
bring about extremism. Today in political terms, we talk about the leftists and the rightists, the
centre-leftist and the centre-rightist. The leftist is the man who opposes everything even if it is
rights. He opposes everything because it does not resonate with his ideology. If he is blue
politically, he is blue. Whatever the blue does even if it is wrong he supports. If he is white,
whatever thing the white does even if it is wrong he supports. So they are in the extreme: the
extreme-leftists and the extreme-rightists.

And then you have the centre-leftists. He is against the system, but if something happened that is
right he commend the system for doing that which is right. And then you have the centre-
rightists, he is with the system if the system does that which is wrong he condemns it. So
Aristotle’s idea is that never must we go to the extreme in addressing or resolving any issue of
common concern. Now Aristotle’s idea is that in addressing any issue of common concern, we

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must examined the extremes and go for the midpoint. This is what is known as Aristotle’s
Golden Mean.

Joseph Hill, a Jamaican reggae music icon in his 1980 album calls it ‘Three sides to my story’
simplified Aristotle’s idea; that every story has three sides: your side, my side, and the truth.
The truth is what Aristotle considered as the midpoint –the Golden mean

Now in the context of Justice you realized that even in our judicial sense, you see the lady
Justicia blindfolded, scale in one hand with a sword on the other hand. She is blindfolded
because she does not take into consideration any other thing beyond the evidence that is adduced
before the court; it is weighed on a balance of probability in the civil context and in the criminal
context beyond reasonable doubts. And the sword is there to enforce the sanctions irrespective of
who you are or where you come from. No one is above the law. Even if it your child that goes
against the law, the law must take its course. Justice must not only be done but it must be seen to
be done.

So in the Judicial sense justice is said to have content and a context. The content of justice is
manifested in the law irrespective of which branch of the law we talking about. The law in itself
whether it is procedural or adjectival, that is a manifestation of the content of justice.

The context of justice is the fact with which they court is faced. His idea of the Golden mean is
central to natural law and justice.

3 THE CONCEPT OF EUDAIMONIA

This word is translated from Greek to mean happiness. How can we realize happiness as an
ideal? Is it something that is rooted in our senses? Or is it based on contentment? Aristotle looks
at Eudaimonia beyond those two extremes. Eudaimonia spans up to the continuation or
continuity of your lineage. They would regard you as somebody that has really achieve
eudaimonia when you had live a decent, and prosper and fair and reasonable life and you have
handed that to you offspring and those that come after you.

How can man attain the status of the good life, or what constitute the good life? Aristotle
response to the question is that, the quest and attainment of the ideal of eudaimonia-the quest and
realization of eudaimonia is what constitutes a good life. That is to say your quest for happiness
and how you realize and enjoy happiness as a human being is what brings about eudaimonia. So
a number of questions come into play. What makes us happy? The Greeks were in search for
absolute truth, and truth itself is rationalized in justice and peace. This means an environment
that is relatively secured; an environment that enjoys the euphoria of peace, justice and truth is
one that has attained the ideal of eudaimonia. All of these ideal mentioned above are all
embedded in the quest for justice.

The Greek’s Notion of an Eternal Law Superior to Man’s law

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This idea is central to natural law, and in fact it is the principal thrust of natural law. The Greeks
they believe that there are laws that are eternal .these laws that are eternal they are indivisible,
inalienable, and universal and they are objective. Their validity comes across time and space.
And it is these eternal laws that hold the forces of the dynamics of natural law. And it is these
eternal laws that regulate nature and man’s place in nature. So there is no need to over emphasize
the centrality of this strand of natural law to the natural law thesis. It is relevant to the natural law
thesis.

Cynicism

After Socrates, Plato and Aristotle whose ideas shape the evolution of modern philosophical
thoughts, there emerged three main schools of thoughts that contain ideas that are relevant to the
natural law thesis. The first school of thought is Cynicism, the next is the Epicureanism and the
other is Scepticism. Stoicism came after these three.

Cynicism is a school of thought that is associated with the eccentric ideas of the great
philosopher, Diogenes. Here we are talking about Diogenes of Sinope or Diogenes the Cynic.
Diogenes never met those three great philosophers but he came to be attracted to the great
philosopher Antisthenes. Antisthenes was another disciple of Socrates alongside Plato,
Antisthenes was another notable philosopher of Socrates but Plato came to overshadow him
because of Plato unique contributions to philosophical discourses that evolved after Socrates.
Antisthenes projected Socrates ideas to point that influenced the great Diogenes.

Diogenes was a man from Sinope. His parents, at a very early age were in governance and were
eventually accused of corruption, of siphoning funds met for the development which they
transform into their own cash reserve. Diogenes and his parents who committed the offence were
banished. Diogenes had that experience about the dangers of corruption and injustice. When he
came across Antisthenes, Antisthenes led him to believe in the philosophy of the unexamined life
to discover the undiscovered self. He believed in Socrates’ philosophy, for the unexamined life is
not worth living. That the actual place of man in nature is for man to live in accordance with
nature, because man is part of nature.

Diogenes vowed not to involve in corruption, not to do injustice to any man. Diogenes became
cynical, extremely doubtful about the place of civilization in man’s life. That the problem is not
with nature. Should man choose to live in accordance with nature man is definitely bound to live
in an environment in which he is relatively secured. Man’s relative insecurity in nature is not
undermined by nature itself rather it’s undermined by civilization. So every other conventional
norms and standard in contraventions with the ideals of nature, in the name of civilization,
Diogenes opposed it.

Diogenes considered the quest for wealth, power, status, recognition and for every other thing
that humanity has tied it happiness to as unnecessary luxury. What matters for man is to live in
accordance with nature. Diogenes stood up against corruption and injustice of any kind and he

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lives in accordance with nature. Diogenes was very much interested in the ideal of been fair, just
and reasonable. He was a deviant because he was against conventional norms and standards of
society. So he was not only skeptical about the standards and norms of society but was extremely
skeptical about them. Diogenes helped Antisthenes create cynicism, a philosophy that focuses on
living a simple life without the need for money, fame, power or possession.

Diogenes used to carry a lamp during the day and claimed he was looking for an honest man. He
did not want any fanciful clothes or beautiful garments; he sees it as an unnecessary luxury. He
puts on rags as clothes. Diogenes used to live in a ceramic tomb. He said the best life to live is in
accordance with nature and the best animal that lives in accordance with nature is the dog. So
that is why Diogenes emulated the dog. He was always seen alongside dogs. Diogenes would not
eat fresh food but he would rather eat the left over foods or crumbs that were thrown away. He
could openly performed bodily functions in public, such as masturbating and urinating in public.

He had a carved bowl which he used to drink water from. One day, whiles he was passing by, he
saw a boy drinking water with a cupped hand, he immediately threw the bowl away and said it
was an unnecessary luxury.

When Alexandra the Great discovered Diogenes, he wanted to know who this Diogenes is. He
came to him and Diogenes was busy sun bathing. Alexandra the great ask Diogenes what he
wanted in this world so that he can do it for him. Diogenes looked at him and smiled and said the
only thing that he wants from him is for him to move away from the sun so that he can get the
sun to hit him well. He is quoted as saying this to Alexandra the great “I have nothing to ask
but that you would remove to the other side, that you may not, by intercepting the
sunshine, take from me what you cannot give” And Alexandra the great looked at him and
said if he were not Alexandra the great he would have chosen to be Diogenes.

Before Diogenes was captured and sold into slavery, that was after he met Alexandra the great.
But he met Antisthenes after he was captured and sold into slavery and he became the tutor of
the children of his master. Before that Antisthenes became disillusioned and dissatisfied with the
behavior of Diogenes for he had not wanted Diogenes to associate himself with him. So
Antisthenes drove Diogenes and Diogenes said as long as I have something to learn from you I
would not go away from you. Then Antisthenes picked up a stick and beat Diogenes mercilessly
to a point that Diogenes suffered serious pains. Diogenes found another stick heavier than that
which Antisthenes had used and gave it him to beat him more, that he would not under any
circumstances move away from him.

During winter, he slept in the snow.

Alexandra the great after having discovered him sent for him again. Diogenes was too busy with
philosophizing and he sent his words to the all powerful Alexandra the great that he knows that
Alexandra the great was too important to come and see him so he is as well too busy and too
self-sufficient to go and see Alexandra the great, so therefore he do not have time.

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 There are different records as to how Diogenes died. He lives up to 92 years. On e account says
that he loves dogs, he wanted to feed dogs with an octopus that he had, and it was when he was
slitting it for the dogs to eat that he was beaten by the dogs and he died. There is another account
that says that he ate the octopus raw, and after eating that he died. And after his death a
monument, sculpture of Diogenes was erected in his home town, in honor and recognition of this
honest man who live in accordance with nature, in accordance with the ideals of justice.

Diogenes Cynicism against the norms and standards and conventions of society resonates with
nature. And true law is right reasoning in agreement with nature. Hence Diogenes’ philosophy is
an eye opener to understanding the natural law thesis.

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LECTURE 10

EPICURIANISM

This was a philosophical school that was founded by Epicurus. The epicurean believed in the
philosophy of hedonism. Hedonism is based on the idea that pleasure is indeed the source of
happiness. And happiness indeed it is all about how you feel. Now this is the dictionary meaning
of Epicureanism. The idea of Epicurus goes beyond this perspective.

Do you agree that pleasure is all about happiness and happiness is all about how you feel?

Now if happiness is all about how you feel and that happiness is derived from pleasure then
happiness is a sensual thing. The philosophy of Epicureanism posed the greatest challenge to
ideas relating to God’s existence. The epicurean paradox is one that has helped to shape our
understanding about the concept of God. A concept that is yet to be clarified.

The religious people, the Christian community, those who believed in the God’s saw the
Epicurean as an idea of promoting atheism. Atheism presupposes the idea that you do not believe
in God. So as a way of dismissing them, they developed the meaning of Epicureanism different
from the actual original doctrines of Epicurus. The perspective which is in the dictionary is that
mundane perspective which says the Epicureans believe in hedonism. Hedonism is based on the
idea of pleasure, and pleasure brings happiness, and happiness is all about how you feel. It is
something sensual. That is the position given in the dictionary, but I consider it to be very
misleading. It is misleading because there are more to the idea of Epicurus than we need to
examine. The law of life which is live and let’s live is said to be the basis of Epicureanism, but is
not as how it is presented in the dictionary which is philosophically misleading. Epicures’ idea
about the law of life which is live and let’s live is about man living life fullest to the best of his
ability. Man is preoccupied about thought relating to life after existence. This is a religious
doctrine which prevents man from living the best life he wants to for fear that there will be
punishment hereafter. But Epicurus did not believed in life after death.

WHY DO YOU THINK THE THESIS OF EPICURUS IS CENTRAL TO NATURAL

LAW?

Because it is tied to the law of life, which is live and let’s live. This law of life is live and let’s
live is only possible in an environment in which we are all relatively secured.

Why was Epicurus condemned when he did not preach the law of the jungle which is kill, or be
killed, but rather he was of the view that man must live life fullest to the best of his ability? That
happiness is a sensual thing. It is all about how you feel. That is at the mundane level. But at that
philosophical level, the Epicureans are painted bad because they challenge existing beliefs. The
existing belief then was a question of life after death. That when you die there is a world

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hereafter that you will go atone or account for your deeds. This is one thing that is preventing
people from doing so many things because religion says so. Epicurus believes that human being
is made up of matter, and when the human being dies the body decomposes and it is reduced to
the smallest form of an atom which is molecule and it becomes something else after death. So
why do you need to worry about the question of life after death. This is the reason why they
opposed him. So the question of life after death, that ontological question in philosophy is
relevant to the epicureans. For the Epicureans we have deceived ourselves by relying on prayers
for that which we have the ability to do for ourselves.

After having attacked the question of life after death, he then attacked the concept of prayer. The
question he poses is that, do you really need to pray to solve a problem that is within your
ability? Epicurus further attacked the concept of God’s Existence. Whether God is a being
that exist? Existence precedes essence. Epicurus came up with a paradox that if there is God
why is it that Evil Exist? Is it that he cannot solve the problems of people? So to date, religious
scholars are struggling to answer the question relating to the epicurean paradox.

Now if you say happiness is sensual, then I can do anything that brings about pleasure for me.
And I will stop at nothing to satisfy my unmitigated selfishness.

So regarding the question of life after death, Epicurus developed another idea ‘I was not,’ ‘I
am’, ‘I will not’, and therefore, ‘I do not mind’. This means that before you were born, you
were not there. After birth, you are living. And when you die, you will not be living. Therefore,
there is no life after death.

Now look at it this way. Did you know anything before you were born? And before you were
born you were not in existence? You did not know anything? Do you expect to know anything
after you are dead? Because when you are dead you do not exist anymore, so why meticulous
about the phase after you are dead but you do not what to know about the phase before you were
born?

If Epicurus could be frame in that way, it is because of these challenges to traditional ideas
about God, about life after death, about prayer etc. But indeed the Epicureans have shaped
our understanding of the natural law thesis. Because they emphasis the importance of the law of
life which resonate with natural law, that live and let’s live is what the others misunderstood and
presented the Epicureans as bad people. He believes in the need for man to live his life fullest.
The need for man to live his life fullest resonates with the idea of Aristotle’s teleology. And that
is recognized as a doctrine that is relevant to the natural law thesis. And Epicurus is emphasizing
on the importance of peaceful coexistence of living in accordance with nature. Remember
natural law is not only looked at from a theological perspective, it is looked at from a
philosophical perspective as well. Epicurus was not an atheist. Epicurus believes in the gods.
For Epicurus, the gods were busy with their things in heaven; they have nothing to do with us
here on earth. That is the reason why they cannot address the problem of people. If God is so

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powerful why it is that he cannot address the problem of people? Is it that he is unwilling to
address the problem of people? He can, but unwilling to address it? If he can but unwilling to
address it then he is not a benevolent god but a malevolent god. If he is unable to then he is an
impotent powerless god. The Epicureans did not equate God with nature. God is not nature for
the Epicurean. Nature is different from God. The Epicureans are empiricists.

SCEPTICISM

Pyrrho is the leading proponent of this school of thought. For Pyrrho you have to doubt virtually
everything that you cannot verify. Now just like Diogenes took Socrates’ ideas to the extreme so
Pyrrho took Plato’s idea to the extreme. Pyrrho was well known for being so doubtful or
skeptical of every piece of information he received that until he rationalised it he would never
accept it which almost led to his death. The essence of this philosophy of the skeptics is their
argument which is that every idea presented to them that was discovered through sense
perception always has a contrary explanation to it. This means that man’s knowledge of things
does not come from using their senses to perceive it as it has been asserted are largely
misleading, any idea of this nature is a mere reflection of reality. Idea must emanate through
critical thinking, reflection and introspection. Scepticism is said to be the basis of relativism,
which is central to the concept of morality.

STOICISM

The contributions of the Stoic to the natural law thesis cannot be underestimated. The features of
natural law are clearly discernible in the philosophy of stoicism. In fact, the central idea of the
features of natural law was best explained by the Stoic. A number of philosophers therein like
Marcus Aurelius, Seneca, Zeno of Citium and others contributed to the development of stoicism.
Zeno of Citium is the founder of stoicism. And all of them even up to death, when they were
beaten up to death, exercise the greatest of courage and died with courage. For the stoic, pain
does not exist; if it does it can be controlled. There is virtually anything that is material, anything
that is worldly that interest the stoic. The stoics live a life of self satisfaction and contentment.
Stoicism believes that one should not be bothered about anything that disturbs the soul. Just like
Socrates said that things in themselves are not problem but the problem is with the way they are
perceived. For the stoic, nothing is a problem to him. They held the view that contentment and
the liberation of the inner self is the basis of man’s happiness. They also were of the idea that
man’s happiness is unconnected to man’s sensual pleasures. The features of natural law are
clearly discernible in the philosophy of the stoic. That natural law is universal, immutable,
eternal, and objective.

This is how Cicero explains natural law in the context of Stoic philosophy…. ‘Law is the
highest reason implanted in nature, which commands what ought to be done and forbids
the opposite. This reason when firmly fixed and fully developed in the human mind is law.
The origin of justice is to be found in law, for law is a natural force. True law is right

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reasongb4esw in agreement with nature. To curtail this law is unholy, to amend it is illicit;
to repeal it is impossible. One and the same law, eternal and unchangeable and will bind all
people and all ages, what of the many deadly, the many pestilential statutes which nations
put in force? This are no more deserved to be called law than the rules a band of robbers
may pass in their parliament. Law is the distinction between things just and unjust made
with the primal and ancient of all things nature’

The tale of the death of the Roman Philosopher Seneca is very well known. He was ordered by
King Nero in 65 A.D. to commit suicide for conspiracy against him. Although he slit his vein
and the centurion beat him to death, he was content until his last breath that he was going to die
eventually. There was no escape he met his end with typical sobriety.

Also Saint Anicius Manilius Severinus Boethius was imprisoned and placed on death row when
he wrote his work “The Consolation of Philosophy”. What prompted his work was the fact that
the concept of philosophy appeared to him in his cell in the form of a woman, he told him that all
the superficial ideals of status and material possession he clamoured for could no longer help me
only (she) philosophy will comfort him for the rest of his days. He had already embraced that
fact that he was going to be killed. As a result, he wrote his philosophical work until he was
killed by beating and strangulation. It was before his death the manuscript was smuggled out of
his cell which was later published. It is important to note that Boethius was not a stoic but it was
the philosophy of stoicism that took him to the grave.

The only thing that separated the belief or idea stoics and that of the Christians and the Muslims
is the belief of life after death. So one of the clearest and notable strands of the natural law thesis
is stoicism.

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LECTURE NOTE 11

The theological approach to natural law

Theologically it is said that natural law can be discovered through the scriptures. Meaning the
scriptures are ordained by God almighty. It is the omnipotent, omnipresent and omniscient God
of the universe that reveals the scriptures.

The perspectives of the theologians we are concern with here are those of the Islamic scholars
and those of the scholars in Chris Kingdom.

There are four leading scholars in Christianity that have contributed immensely to the evolution
of the natural law theory. These are:

1. Saint Augustine of Hippo

2. Saint Thomas Aquinas
3. Saint Anicius Manlius Severinus Boethius
4. Saint Gregory

Saint Augustine of Hippo

Saint Augustine of Hippo published a text known as a city of God. This text deals with a number
of issues relating to natural law, justice, the state, fundamental rights and freedoms, sovereignty,
equality and governance. The test for the validity of natural law is that natural law is said to be
the criterion by which the validity of man-made law can be determined. We have agreed that
natural law is superior to man-made law by virtue of its features, that it is universal, it is eternal,
and it is immutable as it cut across time and space. It has been there; it is there and will continue
to be there till the end of time. So if that is the case, if natural law is constants, it means
irrespective of where you live or where you come from or irrespective of the community that you
govern, or the state you govern the laws which you must enact for the governance of men in that
state must approximate to natural law. For Saint Augustine, for any man-made law that
contravenes justice as an ideal is invalid, is unjust, unfair and unreasonable and must therefore
not be obeyed.

Now Saint Augustine thesis is contradicted in this direction by Saint Thomas Aquinas. In his
own thesis about the validity of man-made law, he state that a man-made law that contravenes
Justice as an ideal cannot be said to be invalid and therefore must not be obeyed. Saint Thomas
Aquinas is of the view that such law amounts to nothing but corruption of laws. But it is
preferable and very rational for it to be obeyed than for it to be disobeyed, because disobedience
of any kind is immoral and it is a sin.

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Thus, if you looked at it from that perspective, if citizens decide to disobey the laws of society
then they are taking the laws of society into their own hands and at the end of the day the
protection of all and sundry is threatened.

The other points which Saint Augustine of Hippo raise relating to justice as an ideal is the place
and functions of justice in society. Justice is the first conditionality of humanity. There can
only be a society of peaceful coexistence and truth when justice prevails. Justice, truth and
peaceful coexistence are the inseparable triplets. Justice is crucial in every society. Justice is
crucial to governance, it is crucial to human existence and it is central to law. The essence of law
is justice. You do not make laws to address problems of this day but laws should be made to
address problems of today and tomorrow. That is why when making law you have to put on the
cap of justice. Because if you do not, the same bad laws that you make today to target others will
be used against you tomorrow that is why you have to be careful when making laws.

Saint Augustine came up with a very useful thought experiment about a pirate, who was
caught robbing off people onboard a ship out shore. He was later convicted and called a pirate.
And in explaining, the pirate said yes, I stole at sea and what I stole is for my survival, you call
me pirate. But what about those men in your legislative assembly who enact bad and dangerous
and nasty laws to satisfy their unmitigated selfishness and rapacity and muzzle their opponents
and oppositions, how do you call them? Are they not criminal as well?

So he is saying that you call me a pirate, what about you that sits in your parliament and enact
bad and nasty law that threatened the stability of society, how do you call yourself? So for
Augustine he says they are nothing but criminals that robbed society of their rights to enjoy the
euphoria of justice.

In relation to Governance the next concept in his writings, Saint Augustine states that the whole
essence of governance is to uphold justice. In the city of God what obtain is the ultimate human
conditions known as justice. So Saint Augustine attributes Justice as a fundamental principle of
Governance. This is clearly discernible in our laws, Section 5 (1) of the 1991 Constitution of
Sierra Leone, Act No.6 of 1991 which deals with the idea that the state of Sierra Leone is built
on the principle of freedom, justice and democracy. And section 5(2) of the 1991
Constitution Act, No. 6 of 1991 state that in Sierra Leone sovereignty belongs to the people of
Sierra Leone from whom government through the constitution derives its powers, authority and
legitimacy. So you realized that even in our legal system the importance of governance is
rationalized.

There is a debate that underpins political theory in the modern world. And that debate is also
seen in modern constitutionalism, between the powers of the state and the rights freedoms and
liberties of the individuals. So for Saint Augustine, in his test, ‘the City of God’, he state that
those in governance, they are elected, they are appointed to serve the people and not to be serve.
This is principally underpinned by the ideal of justice. You exercise your franchise, elect your

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representatives, because you wants them to serve you. For Augustine, no man should be
governed without his consent. In governance, consultation, consent and cooperation are crucial
to law, they are crucial to the contributions of Saint Augustine of Hippo, that it is wrong for you
to be governed without your consent. So governance by men in a political community must be
underpinned by the consent of the governed. The governors must govern with the consent of the
governed. If the governed are not consented to the governors exercising powers over them that in
itself is in contravention of justice and is not workable for a City of God.

Sovereignty belongs to the people, it does not belong to parliament neither does it belong to the
Judiciary or to the chief executive and his cabinet but rather it belongs to the people of Sierra
Leone from whom government through the constitution derives it powers, authority and
legitimacy. So in a logical perspective it is important to the natural law discourse.

THE CONTRIBUTIONS OF SAINT ANICIUS MANLIUS SEVERINUS BOETHIUS

This is also another scholar of ChrisKingdom who believes in the ideals of justice. This
fundamental idea of natural law known as justice is not unconnected with his writings and his
most notable text is known as ‘The Consolation of Philosophy’.

Saint Anicius Manlius Severinus Boethius was a very influential and powerful man with
knowledge in Christianity and philosophy, and of course, he was a saint. The knowledge of this
man grounded in the natural law perspective and his knowledge in the Christian scripture
brought him very close to the throne. He became an adviser to and of the throne. He was a
lovable character; he was adorned and given every support he needed to shape the governance
system in accordance with the ideals of justice. He was accused of plotting to dethrone the
throne. He was arrested and banished and warned never to return. But because of his knowledge
and his conscientiousness rooted in the natural law philosophy, they got him to come back. He
had fame, wealth, power, status, recognition, honored and the euphoria of all of those attributes
where enjoyed by him. He was eventually accused again of dethroning the throne (treason) and
this time he was not let go but was arrested. He was tried, convicted and sentenced to death by
beatings and strangulations.

He was in prison awaiting death when philosophy that he had abandoned appeared to him in a
form of a woman to console him. It was after philosophy had consoled him; to get him to know
that neither his wealth nor his power or status could make him happy or exonerate him from the
wrath of the existing law. Philosophy got him to know that true happiness comes from within
himself. Meaning he must liberate himself from the fear of death that was about to befall him.
Boethius summed up courage and embraced philosophy again while awaiting death. He was on
death row that was when he wrote the consolation of philosophy. And it was the eve of the day
he was to be killed that the work was smuggled from prison and the following day he was killed
by beating and strangulations. This text contains ideas relating to man’s place in nature, issues
relating to virtue, justice, and human nature, which are central to the natural law ideal.

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