African Philosophy of Right

F. O. C. NJOKU

Outline

  1. Introduction
  2. Hurdles on the Way of constructing an African Philosophy of rights
  3. The Ontological Basis of an African Conception of Right
  4. The Illusion of the Community-Centered Claim.
  5. Re-constructive Interpretation of the Ontological Basis of African society.
  6. The Concept of Covenant as offering Basis for Philosophy of Right.
  7. Deriving Covenant-Based Rights in an African Environment.
  8. The Ontology of Human Subjects in the Movement of word and Action.
  9. The Juro-Ethical Order of Covenanted Wills.
  10. Covenant As A Conceptual Frame Embodied Humanity.
  11. End Notes

1. Introduction

This work will attempt to propose a philosophy of right within an African environment. Such a philosophy is expected to be of interest to anyone who wants to asses a socio-political structure of a less sophisticated set-up. The approach here will be phenomenological in the sense that the data of African experience will be largely taken on board such an experience will be nationalized along some theoretical frame work. In other words, this piece does not claim to be giving a history of African experience. It simply takes the data of African experience and gives some critical and theoretical foundation to it.

Man, in the African universe of being, has been described as the epi-centre of cosmic reality. He has claim ‘on himself’ in the sense that he expects his biological or physiological components to function properly in order to help him survive meaningfully. He equally has claims on his environment for he wishes for a conducive atmosphere to live his life. Wherever he finds himself, as he moves along in his existential facticity, he has to respond to the demands and duties of being’. It is intended to emphasize that the individual has an unquestionable claim to be in harmony with himself and the other person. God and the environment (family, nature, society and state). Duty is the claim one has to expect another to perform certain functions.

A right is a legitimate claim, be it on the part of the person or the group , to that which belongs to their persons, either by the sheer fact of their being as epi-centre of existence or as what others are obliged to grant to their person as members of political society. Rights and their claims are discovered to be possessed by persons and elaborated within the societal structure. I say this because I believe that there are rights which predate the political society. Such rights are protected and further rights are created within the political community in order to help people protect and change the socio-legal positions of one another. Therefore, the society is a framework within which right-claimants respond to themselves.

The task we have set out to do here is to investigate how the person and others (including individuals and communities) create frame work rights (with their correlative duties) within the African milieu. Having said this, it should immediately be pointed out that any construction or analysis of right within the African environment of occurrence faces some obvious problems. This essay is an attempt to highlight such difficulties and offer some nationalizations as ontological basis for an African philosophy of right.


2. Hurdles on the Way of constructing an African Philosophy of rights

In order to create a basis for a philosophy of right within African conceptual schemes, it is important to note some hurdles on the way of such a project.

a. Ambiguities in emphasis: Sometimes one notices a lopsided shift of emphasis in an African environment: at one time, stress is laid on the individual and, at another, on the community. In general, however, the emphasis on the role of the collectivity as the ultimate dominant and determinant force seems to override. The resulting effect is that individuals who make up the communion suffocate in the process. So the individual’s and collectivist’s reasons set themselves in opposition to one another.

b. The problem of the super-structure created by the elite and priest-craft: This type of state of affairs confuse the model of relationship that exists between individuals and their rulers – men who have some pronounced social roles to perform. A major part of this confusion stems from the ardent interests of rulers to manipulate the social structure. Allegiance to such structures may largely be sustained, among other reasons, by ignorance, lack of education and fear of religious or social retribution.

c. The inability to reach a compromise: An African society may recognize that rights can be overtaken: but the problem is that most of the time, it is individuals that relinquish their rights. Can the community be led to relinquish its rights where the individual has legitimate grounds to demand it? That is, could not the individual have rights against the community or the state? This appeared inconceivable to the mind of the traditional African or the ancestor model authority. This part of the reason why J. Obi Oguejiofor has argued that traditional moral values in Nigeria are not universalisable1; although not all will agree with Oguejiofor.

d. Lack of equitable theoretical background: There is a lack of reflection or conceptual framework on what should constitute a reasonable basis for better interactions in society. This lack seems to have Right. In other words, there is an evidential absence of a principled conceptual basis to effect genuine actions regarding legitimate claims.

e. Dealing with mass morality: Sometimes one notices a situation in which what is right is what everyone is doing. One who takes a contrary view to what is happening in the status quo seems to be running backwards. For example, in Nigeria, passengers will nag a driver, delayed for no just cause, who has no reason to give some bribe to a policeman.

f. Some negative reminders: There are some models of understanding or reconstruction which are antithetical to building a balanced philosophy of right within an African environment. Patrilineal societies are known to place emphasis on male constructed and male –ruled universe of meaning. The values of courage, wit and spirit of achievement may be underlined, but their inherent defect is a pretence to be always capable of dictating on every activity in the environment. Members of characteristic groups create a framework of meaning, approbation and disapprobation that is propagated by the class.

While insiders of this group, who may respect the claims of their co-members, impose a world vision or a way of life which in the final analysis , may go to diminish the persons of individuals outside of their group: the model of rights that come out of this state of affairs, in relation to outsiders, is the offshoot of a male-dominated structure mostly translated in commands or ideologised societal imperatives of prohibitions. Certainly, this understanding of right fails to provide the members of a society the freedom to create and change the (legal) positions of others within the conditions guaranteed by natural and socio-legal rights.

3. The Ontological Basis of an African Conception of Right

By right is meant what an individual or person is entitled to claim by virtue of the provisions of natural and social justice. The demands of natural justice are rooted in the nature of man, the claims demanded by his nature as man without which he would be less than a man or person. For example, man embodies spirit, body and soul. Distinguishing himself as a rational and unified entity, he has claims to maintain himself, and the means to sustain himself through food, clothing and shelter. He has the right to be educated and protected by the co-operation of others, thus, he attains his full humanity in the social group. Any state of affairs that flouts the claims to the rightful realization of the person in himself an undivided entity and as a member in social association will be infringing on the basic rights of his person.

There is a widely held view that African societies are communalistic: in other words, the community is the centre of gravity. The gravitational force largely pulls individuals to the communal centre. Consequently, individuals are like spokes organized around the hub—the community. A disruption in any part of circular structure creates a malfunction in the whole set-up. It is said that, if a rung of the societal ladder is removed, the line of the societal life-force is jeopardized. The emphasis on the collectivity as determining the ‘person’ of the individual prides itself as an ontological unity whose creed is ‘I am because others are, or I am because we are.’ This is a merit to the view that the community gives individuals their ‘being.’ To be ‘maintained’ in ‘being,’ one must conform to community’s injunctions and ways. The ethics of such a living is imbued with the conviction that ‘I am not alone in the social games – in the world.’ What I do touches the other. The ‘other’ is understood here as the altrui – the other(person) or the natural environment of God. The hallmark in the ‘we-identity’ has been used to explain the social being of the African as a poisitive value.

The community dies or survives with the co-operation of others. In the collectivistic community of meaning, what claims one has do not derive from one’s ontological constitution as an irreplaceable and incommunicable being but from the label placed on one as constituting a part in the whole. Evidently, the community in the African sense presents itself as the greatest infallible judge and distributor of resources for social living. Rights are then community-sanctioned. If we translate this world-view in positivistic terms, a collectivistic understanding of African societies will tend to recognize only socio-legal rights. The dispenser of community goods, whether symbolized in the sole authority of the individual of some collectivity, will be the imperative speaker who makes social labels, places them on items, making them have, and become, what their labels have imbued them. It is significant to note, as observed by Johannes Messner, that “the social theory of all collective systems . . . begins with the social entity as the absolute primary value, but never reaches the full reality of the human person with its supra-social ends and its value ranking above that of the society.”2 Much emphasis on the community devalues the person standing as an incommunicable entity in-charge of his own conscience and author of his co-operation as an existential personality.
The claim that African societies are communalistic has been put forward by many to maintain that the African is ontologically predisposed to care for the other or that individuals have an attitude of care towards each other. Kwame Nkrumah branded the attitude of care as ‘egalitarian’ and Julius Nyerere articulated it as an ‘ujamaa.’ In the world of cultural encounter with Europe and America, Leopold Sedar Senghor captured the lively Africa spirit with the concept of Negritude – the predisposition for a care on the African as a posting of the self in a free and symbolic embrace with the other. Within the theological parlance, Eugene E. Uzukwu sharpened the egalitarian or care-attitude as ‘hospitality’ that can serve the Gospel to inculturate itself within the African socio-religious matrix. The end value of the egalitarian understanding of African societies is the insistence on communion among members of African breed. But how realistic is the claim that egalitarianism homes the attitude of care or hospitality of communality to which the African is inherently and ontologically predisposed?

4. The Illusion of the Community-Centered Claim

The impression that African communities have been benevolent to their members and to strangers is an age-old claim that must be brought under closer scrutiny. Traditional African society carved itself into small hamlets, clans or families. These groups were very suspicious of foreigners(strangers/outsiders). Because the stranger was always seen as a herbinger of bad fortune, most of the time, he was eliminated. But the story did not finish with strangers. ‘Stubborn’ members of the group or people, whose ideas or behaviours were considered strange, were, sometimes either eliminated by the members of their own clan or families, or were during the trans-Atlantic slave trade, sold into slavery. The desire to punish the ‘ill-behaved’ people within the group did not stop with the establishment of colonial rule over African countries. In the Igbo society, for example, it took some years to send the ‘well-behaved’ or ‘the darlings of the family’ to school. The ‘deviants’ were sent to the White man’s school principally, to be punished or disciplined. Strange enough, the bad guys got educated first and came back home ‘wiser’ with their superior knowledge, they began to pilot the affairs of the society, a revised-situational anomaly that was not intended by the fathers! The bad ‘guys’ got the better part – white man’s education: the better crunch!

The people whose ideas reigned in the clan were the domineering or influential individuals. There was an obsessive fear of the juju men, the rich, the strong wrestler, the man with immense physical strength, the medicine men, and so on. It will be a great remise to ignore the element of priest-craft in the moulding of the conscience of the social, political and religious realities. While one does not deny that African traditional societies had their sense of justice, but it should be acknowledged that most of the time, because there was no organized jural system, there was a miscarriage of justice for the balance was apt to be titled to suit the dictates of some influential individuals. In fact, because, the intellectual intuition of the society or individuals constituting the influential group was short-sighted and sickly redolent with suspicion, many talents were either simply ignored, suppressed or minimally tapped. Without much equivocation, it is not an off-hand statement to say that traditional African society largely codified mode of communication safe-guiding the interests and world view of the clever members of the group. In short, one can argue that there was no egalitarian society therein but a society of projected interests of some individuals who exerted their influence and imposed the longings of their ‘ideological’ conscience as the social creed.

With the failure of the account of a rigorous collectivist approach to African socio-political world view, can we recast such an account in individualistic terms? An individualistic social theory lays stress on freedom of the individual as the epi-centre of cosmic action, who champions the course of history by his self-determination. How free was the individual in the traditional African society? Not many were free. The mechanism of a traditional society, as we pointed out above, was controlled by a few – the influential ones, whose major creed was the acquisition of greater power, force and wealth at the expense of others. One recalls Bantu’s ethics that the social strength of a man is measured by how much he could increase his force. There is the saying among the Igbo of Onitsha area of Eastern Nigeria that azu na-erighi ibe ya etobeghi – which means a fish that has not eaten a fellow fish has not yet started to grow. That is, a man will have to outdo, by means, the other in order to progress.
A man who went to his farm daily, ate at his home with his children and so on, would think that he was free! It would be difficult for him to see himself as a robot in the society, controlled and monitored by invisible forces of societal superstructure. He lived like a domestic animal in the farmyard of the community that could be used for sacrifice when the owner desires. The common man had such many taboos to observe, and many daily rituals to perform, either to appease the community or the divinities. If he was not ‘free’ with men, he was not free with nature or his environment. Suppose community and environment allow him to live his life with less burden, he would still have to pay the debts owed by his ancestors! He may still prefer to follow the uncritical way of his forefathers to spare himself the trouble of reasoning or evaluating the present situation! The individual in traditional Africa was living in bondage or slavery but was only free probably by virtue of his ignorance of the conditions under which he lived. In an inclusive consideration of pre-colonial, colonial and post colonial Africa, we should realize that the so-called influential individuals, even with their acquisition of western education still remain dominant masters in an environment either dominated and enslaved by natural, environmental forces or outside influences.

In my judgment, the attempt to give account of the African society in terms of strictly individualistic or collectivistic terms has not been successful. Traditional African society was dominated by a few self-interested individuals, which incapacitated the social order as a whole to fulfill its functions. Such restricted vision of society did not lead to the individual’s free doing and independence to secure means that could, without much danger, achieve their self-enhancement; the means of livelihood and social action were restricted to some. What actually has come to be exposed in our scrutiny of traditional African society is that it is/was a closed society, secretive in its empirical manifestations and largely chauvinistic in its operation. No doubt most men joined clandestine groups, or got initiated into some traditional secret societies, whether knowingly or unknowingly, to gain power and acceptance in the society. This state of affairs seems to persist.

5. Re-constructive Interpretation of the Ontological Basis of African society

One’s life-world in traditional societies was very limited to one’s immediate family. Let us extend this life-world to the clan, ancestral blood relationship. Life outside of this cycle was almost as precarious as it was hostile. Beyond the family-clan axis, life out there was a not-me, not-us. Whatever they are out there, they are not of us and for us, and we are neither of them nor for them. Therefore, we must be protected against them. While I do not solely intend to align myself with Thomas Hobbes in his hypothesized claim that man in the state of nature was very brutish, it is important to note that the view that traditional African society was peaceful must be restrictive and qualified. One assumes that peoples’ primitive or undisturbed peace and life were immediately linked to their immediate families, which were their immediate environment of occurrence. Persons outside of this environment were as mysterious and suspicious as the mountains, hills, big trees, rivers and forests out there. Anything outside of me or of us is a numen – an object either of fear (superstition) to be kept at arms length or magic (coerced for one’s selfish purposes).

With persistent wars and conflicts families began to enlarge their hold or control over the territories they occupied and those of others. By arbitrary peaceful settlement of inter-family or clan differences, different communities began to lay down their arms at the altar of tolerant conviviality. Sometimes, such solutions of conflicts were not the most justified but were the lesser evil or better option that could result in the name of peace and furtherance of group progeny. The transition from inter-personal and family conflicts to community or societal conviviality was mostly wrought by covenant establishing peace among persons and groups.

6. The Concept of Covenant as offering Basis for Philosophy of Right

Covenant has already been discussed in the previous Chapter. As we noted, a covenant is pact between two or more entities. On a positive note, through covenant, persons and groups arrived at peace by convenience for harmony in order to survive. On the other hand, the basic idea of covenant itself has a negative chord to it. Covenant making is a product of conflict-situation. The end in covenant ritual in African communities is to establish a blood-relationship. People who are already blood-related have no need of making covenants.3 If people are blood-related, they cannot be any more closer than members of the same family.

Through covenant or a socio-religious pact, persons or families who were not in any way related by blood come to establish a blood relationship or something like it in which they commit themselves to the pursuit of their well-being as members of the same blood-related family. With the covenant framework, participants share the same meaning-structure in the same community of life. Covenant is a willed act or pact. By it, a willed meaning-structure ensues – a community of the sameness of meaning that should not be conceived in terms less than a hybrid of family-bond that springs up and runs from the same blood vein. Covenant is rooted in blood or family spirit. The family, as a relationship of blood-pairs, is the closest association nature has endowed man with right from the womb through birth to the development of his personality. So all social relations tend to approximate a closeness that is founded on family or the sameness of brotherhood.

7. Deriving Covenant-Based Rights in an African Environment

When people are involved in a conflict-situation and want to create a lasting relationship or rebuild a broken relationship, they invariably want a guaranteed atmosphere of safety and good will. They want an environment of trust to exercise and give effect to their willingness to belong to a common family-hood (paternity or maternity, group, society, and political set-up). Such goodwill on the part of persons or groups or families involved is symbolized by a covenant ceremony. Within the family circle, other things being equal, suspicion or lack of trust is not a common place. The horizon of blood relationship is an ambient of trust and communion in the same life-bank. And when persons and communities make a ritual pact, they are expressing, in a symbolic manner, their commitment to the same blood-hood of meaning and life as members of the same life-stock. We have seen an instance of this in the making of blood-brotherhood among the Ugandian people, where covenant partners commit themselves to the welfare of one another and their peoples.

The commitment is made by persons who were not originally related but now accept or commit themselves in relationship as brothers, as a family. For even among people of the same blood relationship, there are ways of invigorating strained relationship, hence oath-taking among the Igbo of Southern Nigeria was pointed out. The oath-taking ceremony allays one’s fear or suspicion in communion in the same life-force. In like manner, Nsi-oriko (a ritual for re-establishing confidence among members of the same family) among the Igbo also is a way of prodding couples or persons of the same family to bury their differences and return to communion in their common kith and kin.
Covenant-making is characteristically public. To say that covenant-making is ‘public’ does not mean that every covenant has to take place in an arena where every single member of the public will see it. Certainly, it ought to be seen but is fundamentally a public set because it is an infra-personal, inter-familiar or a communitarian act. It involves me and the other. The world between me and the other—I and thou – is a public world, an inter-subjective world belonging to all, but eventually to none.

Furthermore, the act of making covenant is public in another significant way: it involves a ‘third entity.’ The third entity could be a person, any symbol, or God or a judicial entity. The ‘third’ is a witness to a covenanted relationship. On the metaphysical level, it is God himself who is the Absolute Guarantor of all human and cosmic relationships and ordering. In making a covenant, a tree, a deity could be invokes as a witness. Children could be called to witness the rebuilding of the strained relationship between their parents. The court could be a guarantor in the resolution of personal or intra-familiar feuds. On the whole, God can be invoked as an invisible guarantor to keep on track a new or restored relationship. Therefore, the covenant world is not dualistic, as there are more two individualities involved. Hence the chances of ideological manipulation on the part of participants is minimized. Covenant poles have rather triadic/tri-dimensional – there are me, you and our world or The Other in a covenant encounter.

8. The Ontology of Human Subjects in the Movement of word and Action

I shall assume, without arguments, that covenant relationship between persons in an African philosophy of right are understood in terms of a parity treaty – a covenant between equals. It may be a reasonable assumption of an African metaphysics of experience that everyone is created at the same time. God willed everyone at the same time. When God created human beings as men and women, he created everyone as persons4; but individuals came into being as willed by God and particularized and temporized entities in their cycle of life. By the same token, the first time individuals see or know themselves is the first time they began to exist in each other’s temporal frame and existential axis. Their equality stems from the fact that they are willed and created by God at the same divine instance. Differences if periods of birth are difference in temporal instantiation. Within this understanding is buried an ontological truth concerning subjects in a covenant situation: they are not the cause of each other. They exist to themselves at the same temporal instance as potential covenant subjects. As subjects in the horizon of perception and realization of their existential ends, they depend on each other for their temporal flourishing. The dependence here, which I call ‘contemporary completion’ is a positive dialectics resulting from their physical and spiritual limitations. Because human beings are not ontologically creators of themselves, they are essentially limited. Because their existence and action, in the midst of communication, are limited by time, place, perception and knowledge, their being is existentially complimentary. Hence they are naturally candidates for company and co-operations.

9. The Juro-Ethical Order of Covenanted Wills

When covenant subjects express their unified bond for greater communion in the same community of life and meaning, in the presence of the third, the resultant order is jural or juridical. The juridicality stems from the fact that covenanted wills clothed in norms whose validity and gratuity are rooted in objective facts of the phenomenon of common experience apprehended by all as nomologically and morally justified in the rights of the juro-ethical order are positive. The word ‘positive’ is not to be understood here as positivistic – something commanded or granted by the superior to the inferior, in which there is an implicit separation of morality from thejural order, Juro-ethical rights are neither solely conferred by individuals nor by the social order. The Juro-ethical rights derive from the ontological signification of covenant subjects and their environment of encounter. Fights, understood in the conceptual schemes of legal positivism of the brand of theories of Jeremy Bentham and John Austin, Hans Kelsen’s pure theory of law and H. L. A. Hart’s conceptual alternative to the command theories, will sacrifice the natural morality embodies by covenant subjects and their environment of encounter at the altar of socio-legal authentication.5 Such an understanding in imperative terms will diverge from the being or faticity of covenant as an activity between equals. The positivity of positive rights of juro-ethical order is based on the conviction that the resulting effects between covenant partners are a child of their will in the existential order.

The existential order, as it has been indicated, bears the imprint of an empirical experience of the metaphysical nature of the partners in dialogue and in their environment of encounter. The resulting effects freely bind partners, embracing their legitimate claims, and at the same time, transcending the isolated claims of their individual wills.

10. Covenant As A Conceptual Frame Embodied Humanity

The bonding together of persons in a covenant situation creates a new outlook in human relationship. Partners come to be recognized, not as things or someone meeting somebody, but covenanted entities, taking their stance in dignity before the other. A closeness of the type in blood relationship desires as much subjects has theoretical and practical aims. It prescribes a conceptual framework for conceiving the identity subjects in relationship and a praxis as to how subjects stand and respond to each other’s expression. Expressions are effects (words and deeds) of mental operation discharged in the common world of being. The Partners should act or respond in such a way that their expression should not endanger the flow of their life-bank (persons and their property) -- the constituted blood-relationship; but subjects should act in a way that will always enhance the flourishing of all: stability in peaceful, truthful living and the growth of their common humanity and nature. The covenant axis is a horizon of values for human flourishing.

Covenant subjects are conceived in all their internality and externality: internality refers to their spiritual and moral well-being as persons: and externality refers to the ownership of property they have claim to in the world which derives from their identity as I-subjects extended in time and space; hence covenant partners are embodied spirits. They own themselves as auto-determinants and property which are extensions of themselves. The first property people own is themselves. Hence personhood and property are part and parcel of the internal and external constitutions of covenant subjects, not caused by them, but realized and dependent on a common world for their flourishing. No wonder the Igbo existential creed – Egbe bere Ugo bere (let the kite perch and the eagle perch) – is at once a profession of unity and peaceful co-existence in the common world and a re-affirmation of the founding belief of the community. It is because of the sacredness of life that the Igbo conceive life to be an attribute of communal stability that they add a caveat that: if the kite or eagle does not allow the other to perch let his wing rupture – Nku kwaa ya. A bird without wings not only has lost its identity but is as good as dead. The import of the Igbo proverb is simple we all have right to live and space to exercise. Life is action, and action implies ownership in the sense of what you have done or achieved or claimed. Thus every action brings into being some material or immaterial property. We have right or claim to property, that is, to that which is our own. ‘Own’ here encompasses the right and place to exercise. In short, man is conceived along with his property – his personality.

An African philosophy of life should then pay attention to the issue of property. Talks about property are the present utterances about land ownership in many places. Contemporary outlook on property presents it as part of the tension in job or labour market. It is difficult to pretend to care for people or to be their political leader or spokesman in an environment in which they have claim to property, without paying attention to how they realize their humanity and community. An imbalance in labour relations or property rights is a sign that some members of the covenant relationship are cheating on some others. Within the covenant or inter-personal relationship, we all have rights to our personhood, property and the preservation of our common humanity. Hence the order or model of leadership derives from the factual and metaphysical presuppositions of covenant subjects and the stipulations within the environment of meeting.

I still think that the lack of a proper analysis of the framework of communal living and property and an enlightened basis for personal and community claims are sources of continued tension in many African States, where citizens still see themselves as a mass of people amalgamated together. They prefer to bewail or brood over their arbitrary amalgamation to accepting their togetherness as a framework for establishing lasting political union based on the vision to create or discover their common humanity through covenants. Humanity is one. What matters is that people scratch where it itches them in their environment, while uniting their experience with the universal patrimony of human quest for meaning, truth and lasting peace. African philosophy, like European or American brands or strands of philosophy, is an attempt to make sense of human life by a people whose experience is at once particular and universalizable. The riches of covenant theorizing can be explored to found strong legal and socio-political co-existence among African communities.

Endnotes

  1. Obi Oguejiofor, ‘Non universality of traditional moral values and corruption in Nigeria,’ in Philosophy,Christinaity and science in the Third Millennium ed. Francis O. Njoku (Owerri: Claretian Institute of Philosophy, 2000), 120-137.
  2. Johannes Messner, Social Ethics: Natural Law in the Western World rev. ed. (London: B Herder Book Co. 1965), 4
  3. I think that blood related people, for example brothers and sisters, cannot get closer than they are already. They can however appeal to acts of reconciliation to restore their strained relationship as people who are naturally related.
  4. This convinction is replete with meaning in Judeo-Christian tradition and biblical anthropology refers to man and woman as persons created in the image of God. What is secured in the western concept of person I will speak of in the Igbo understanding of human beings. A human being (whether man or woman) is by its name ‘mma-ndu or mmadu,’ meaning the beauty of living, or the beauty of all. In the linguistic import of ‘human beings’ or persons is a manifestation of their metaphysical essence: man is the beauty of earthly life, and a home of beauty he represents the totality of all as an expression of this beauty. He is a person by virtue of being endowed with beauty at creation. His personhood is not socially acquired or to be decided by a court of law but he is naturally a person that is presented at creation as the beauty of his creation and creator. Man is the place of beauty where his Creator is beheld. So the words ‘human beings are persons’ mean the same here.
  5. Jeremy Bentham and John Austin proposed the imperative theory of law, which claims that there is sseparation between what law is and what it ought to be. For them positive law deals with what the law is. But in their analysis, they accepted the principle of utility as the only principle that should guide both legislators and common citizens alike, thereby endorsing utilitarian morality as the morality for social acting. Such a morality is essentially legal. Kelsen attempted to follow the line of separation between law and morality toed by Bentham and Austin. He claims that no morality is allowed at all in law; hence he excludes the issue of justice. Kelsen proposes his ‘pure theory’ of law whose orientation is the study of law as a social techniques. A just law is still valid law; injustice ensures when the law is not applied equally. If there is any morality in law, for Kelsen, it is here that it comes in. Such an understanding of morality will be simply legal. Hart’s theoretical alternative to command theory of law recognizes that law and morality have some specific content in common: the minimum contents of natural law, given survival as an aim in society. However, Hart claims that the relationship between law and morality on the basis of specific is contingent such that the law need not extend such values; thus a law that does not contain them will still be a valid law; hence Hart argues that morality is not intrinsic to the quality of law as law. The validity of law is different from the question of morality of law. Thus the morality which Hart allows in law is the minimal content and the moral intuition which the judge may invoke in hard cases; but ordinarily, for him, there is no necessary relationship between law and morality. The morality of law, Hart maintains, in the final analysis, lies in treating like cases alike.

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