The Theory of State and Law

Dr. Jaba Shadrack, UDSM - School of Law, 2022

The Theory of State and Law

 1.      Concepts

A.    Law

i) Marxist/Leninist Theory of the Law – law is the form of regulation and consolidation of production relationships and other social relationships of class society (Evgeny Pashukanis).

• –        Law depends on the apparatus of state power and reflects the ruling class's interests.
• –        Law is a historical phenomenon and instrument of exploitation limited by the boundaries of class society.
• –        Law is inseparably tied to the division of society into classes, i.e., every law is the law of the ruling class.
• –        The basis of law is the formulation and consolidation of the relationship to the means of production, owing to which, in an exploitative society, one part of the people can appropriate the unpaid labour of another.
• –        Marxism strives to give a concrete historical meaning to the law
• –        It is impossible to define a general law without knowing the law of slave-owning, feudal and capitalist societies.
• –        The form of exploitation determines the typical features of a legal system. Under the three basic socio-economic formations of class society, we have three basic types of legal superstructure: slave-owning law, feudal law, and bourgeois law.
• –        The legal superstructure comprises the totality of norms, actions of agencies, and the unity of this formal side and its content, i.e., of the social relationships which law reflects and, simultaneously, sanctions, formalizes, and modifies.

Marxists’ features of the law

(a)    Class nature of law – every law is the law of the ruling class

(b)   Protect the status quo - regulate/mediate property relationships or class interests

(c)    Binding nature of the law – the functioning of a legal superstructure demands a coercive apparatus

General Criticisms:

H.L.A. Hart (The Concept of Law) criticizes the characterization of the law as a command or coercive/moral order from a sovereign in that:

(a)    It imposes a misleading appearance of uniformity on different kinds of laws and the types of social functions the law may perform.

(b)   It does not consider the law’s purpose, function, content, mode of origin, and range of application.

(c)    Law applies to those who enact them and not merely to a particular section of society.

(d)   Law may not necessarily impose duties or obligations but also confer powers or privileges.

To him, we need to distinguish between primary and secondary legal rules. While primary rules impose duties or obligations on individuals or govern conduct, the secondary rule allows the creation, change, or repeal of primary rules, thus rules of recognition, change, and adjudication.

ii) Bourgeois/Liberal Theory of the Law – binding norms/rules that mediate or reconcile differences, balance interests, or allocate rights and duties in the state.

• –        A command of a legally unlimited sovereign or coercive orders that impose duties or obligations on individuals (John Austin)
• –        The enterprise of subjecting human conduct to the governance of rules (Lon Fuller)
• –        An eternal institution inherent to all forms of society, including pre-class society.
• –        Unlike Marxists, the Bourgeois thinkers see marriage taboos and blood feuds, customs regulating relationships between tribes, and customs relating to the use of the means of production belonging to a tribe in a pre-class society as law proper.
• –        Law is outside classes and any particular socio-economic formation.

B.     State

i) Marxist/Leninist Theory of the State - A state is a machine for the maintenance of the domination of one class over another; or an organization of the ruling class, having at its disposal the most powerful means of suppression and coercion (Evgeny Pashukanis).

–        The distinguishing feature of the state is the existence of a separate class of people in whose hands power is concentrated

• –        The state is an agency of class coercion in the hands of the dominant economic class
• –        The state is an instrument of class domination and a symbol of injustice that comes into existence to protect private property
• –        The state is a historical phenomenon limited by the boundaries of class society
• –        No one could use the term ‘state’ in reference to a community in which all members administer the ‘organisation of order’.
• –        Coercive power is not a distinguishing feature of the state. Coercive power exists in every human society – both in the tribal structure and the family, but there was no state.
• –        Until the appearance of classes, the state did not exist.
• –        In communism, there will be no state

ii) Bourgeois/Liberal/Juristic Theory of the State

• –        Woodrow Wilson - a state is a people organized for law within a definite territory.
• –        J.W. Garner - the state is a community of more or less numerous persons, permanently occupying a definite portion of territory, independent or nearly so, of extreme control and possessing an organized government to which the great body of inhabitants renders habitual obedience.
• –        Neil MacCormick – a ‘state’ is either an alternative name for an ‘independent political society’ or is the collegiate governing entity that comprises the sovereign with those subordinate power holders to whom have been delegated some portion of the sovereign's powers of command and enforcement.’
• –        The state is a community formed by people that exercises permanent power within a specified territory.
• –        Liberal state donates a limited government or limited state, i.e., the exercise of its power may be distributed among various governmental organs but the sovereignty is a unit, just as the state is a unit. Montesquieu proposes that in every government there must be three kinds of power, i.e., legislature, executive and judiciary.  

Legal Authorities:

(a) Treaty

Article 1 of the Montevideo Convention on the Rights and Duties of States (1933) provides that the state as a person of international law should have: a permanent population; defined territory; Government; and capacity to enter into relations with other states.

Another criterion could be recognizing a territory as a state by the international community or being a UN member state.

(b) Case Law

Serikali ya Mapinduzi ya Zanzibar (Revolutionary Government of Zanzibar) v. Machano Khamis Ali & Others, Criminal Application 8 of 2000 [2000] TZCA 1

 

iii) Balanced View of the State (Neo-Marxism/Semi-Liberalism)

–        Max Weber rejected Marx’s class theory

–       To him, a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. It is a relation of men dominating men.

–        CCM Guidelines (1981) - Serikali kwa maumbile yake ni chombo cha madaraka ya mabavu, Serikali ni sheria, ni majeshi, ni Mahakama, ni jela. (Trans: the government is an institution that possesses authoritative/coercive power, the government is the law, is the armed forces, is the Court, and is the prison). 

 General Features of the State

According to Weber, Montevideo Convention, and Machano’s case, a state must have the population, territory, government, sovereignty, monopoly over physical force, and legitimacy:

(a)    Population/People - an aggregate of individuals of both sexes, regardless of race, colour, or creed- are together as a community

• The Preamble (“we, the people…”) and Article 8 (“the government and the people”) of the Constitution of the United Republic of Tanzania (URT Constitution), 1977.

 (b)   Territory/country/permanence – defined territory/geographical area in which the people have settled down – the size of the country is immaterial.

• Article 2(1) of the URT Constitution provides, “the territory of the United Republic consists of the whole of the area of Mainland Tanzania and the whole of the area of Tanzania Zanzibar, and includes the territorial waters.”

(c)    Government - a person or persons who are the representatives of the people who rule according to the law of the land

• Article 4(2) of the URT Constitution suggests the Government of the United Republic and the Revolutionary Government of Tanzania Zanzibar

 (d)   Sovereignty/autonomous/independent of foreign control - supreme authority, an authority which is independent of any other earthly authority, i.e., absolute, universal, permanent, and indivisible: 

§  An authority that does not have another authority above itself, except the Commandments of God and the Law of Nature

§  One and the same International Person

§  Article 1 of the URT Constitution – “Tanzania is one State and is the sovereign United Republic”.

§  Article 1 of Zanzibar’s Constitution – “Zanzibar is an integral part of the United Republic of Tanzania”.

§  Zanzibar - the Head of the Revolutionary Government of Zanzibar and not the Head of State of Zanzibar (semi-autonomous)

Case Laws:

Jina Khatibu Haji v. Juma Selemani Nungu and Another, Civil Appeal 23 of 1986 [1987] TZCA 25

The principle of duality recognise that there are matters for the Union Government and others exclusively for the Revolutionary Government of Zanzibar.

Serikali ya Mapinduzi ya Zanzibar v. Machano (supra)

Based on the principle of duality and the exclusive jurisdiction of the Revolutionary Government of Zanzibar over all non-Union Matters in Zanzibar, the only logical conclusion is that sovereignty is divisible within the United Republic.

Treason can only be committed against a sovereign. Besides, treason is a breach of security (a union matter) and thus can only be committed against the Union Government.

(e)    Monopoly of physical violence – centralisation of coercive powers or domination

 §  Article 147 of the URT Constitution – “it is prohibited for any person, organization, or group of persons except the Government to raise or maintain an armed force of any kind in Tanzania.

Case Laws:

Ngwegwe s/o Sangija & 3 Others v.  R., Criminal Appeal No. 72 of 1987, High Court of Tanzania at Mwanza, and Misperesi K. Maingu v. Hamisi Mtongori and 9 Others, Civil Case No. 16 of 1988, High Court of Tanzania at Mwanza - Judge Mwalusanya.

Sungusungu - unlawful/unconstitutional group – usurping police powers

See, Maina, C.P., Human Rights in Tanzania: Selected Cases and Material

 

§  Section 3 of the Public Order Act (Cap. 385) – “if the members or adherents of any association of persons, whether incorporated or not, are – (a) organised or trained or equipped for enabling them to be employed in usurping the functions of the police or of the armed forces of the United Republic; or (b) organised and trained or organised and equipped either to enable them to be employed for the use or display of physical force in promoting any political object, or in such manner as to arouse reasonable apprehension that they are organised and either trained or equipped for that purpose, then any member or adherent of such association shall be guilty of an offence”.

 §  Section 8 of the Societies Act (Cap. 337) – “it shall be lawful for the President, in his absolute discretion, where he considers it to be essential in the public interest, by order to declare to be unlawful any society which in his opinion – (a) is being used for any purpose prejudicial to, or incompatible with, the maintenance of peace, order and good government.”

 §  Section 8E of the Political Parties (Amendment) Act (2018) - (1) A political party, a leader or a member shall not recruit, deploy or form a militia, paramilitary or security group of any kind or maintain an organisation intending to usurp the functions of the police force or any government security organ. (2) A political party shall not conduct, finance, coordinate or order to be conducted or coordinated military-style training or any training on the use of force or any weapon to its members or any other person.

 §  Chapters VII to IX of the Penal Code (treason, misprision, sedition, and public violence/rebellion/subversion, promoting warlike undertakings, inciting mutiny, inducing soldiers or police officers to desert, aiding prisoners of war to escape, unlawful oaths to commit offences, raising discontent and ill-will for unlawful purposes, hate speech, foreign enlistment, piracy, unlawful assembly and riot, rioters demolishing or damaging building, going armed in public, affray, abusive language, brawling and threatening violence, watching or besetting, and assembling for smuggling, dissuading persons from assisting with self-help schemes).

§  Article 28(4) of the URT Constitution – “treason as defined by law shall be the gravest offence against the United Republic.”

Case Laws: High treason and misprision of treason

Gray Likungu Mattaka & Others v. R., Criminal Appeal No. 32 of 1971 and Hatibu Gandhi & Others v. Republic [1987] TZCA 18 or [1996] TLR 12.

 

§  The modern conception of state monopoly - the state tends to delegate coercive powers or use physical force to non-state actors. The state is considered the sole source of the right to use violence. However, the right to use physical force is ascribed to other institutions or individuals only to the extent to which the state permits it. For examples:

• –        Article 28(1) of the URT Constitution – “every citizen has the duty to protect, preserve and maintain the independence, sovereignty, defence of territory and unity of the nation.”
• –        Article 146(2)(a) of the URT Constitution – local government authorities - to ensure the enforcement of law and public safety of the people
• –        Sections 18 and 18A-C of the Penal Code - defence of person or property/self-defence
• –        The People’s Militia Laws (Miscellaneous Amendment) Act (1989) recognize Sungusungu
• –        Section 16 of the Criminal Procedure Code - Arrest by private persons
• –        Companies Act and Police Force and Auxiliary Police Act – ulinzi shirikishi/community policing/self-help scheme, and private security firms – IGP’s permit/Police’s control
• –        Article 266(4) of the 2014 Draft Constitution – “it is hereby prohibited for any person to establish an institution, a company, community or organization which is concerned with the National defence and security or an armed force, except under this Constitution or an Act of Parliament.”
• - Article 274 - “without prejudice to the provisions of Article 266, Parliament may legislate for setting permit conditions in order to establish, control and manage other institutions that provide defence services.”

 (f)      Legitimacy – the exercise of state power must be legitimate or the state requires obedience to survive.

 §  Legitimacy lies at the centre of state-citizen relationships and state-building agenda.

§  By definition, ‘legitimacy’ entails an acceptance of authority by the people/citizenry. In other words, ‘legitimacy’ is something that induces voluntary support or obedience.

Legitimacy is a vital feature of all power relations. Power is applied through coercion (authoritarianism) if there is no legitimacy. However, with legitimacy, power is exercised through voluntary or quasi-voluntary compliance.

§  Two key questions guide our discussion: when and why do men obey? Upon what inner justifications and upon what external means does this domination rest? In response, legitimacy can be assessed ‘normatively’ and ‘empirically’. 

According to Aoife McCullough, a normative approach to state legitimacy, which is based on western liberal values, understands a legitimate state as a state that features democratic elections and respects human rights. To him, an empirical approach assesses legitimacy through the perceptions and acts of consent by the governed and the authorities in a given society.

Let us now look at Weber, Beetham, and Lamb’s notions of legitimacy, which embody both normative and empirical elements as follows:

        i.            Max Weber

Weber understood legitimacy in terms of the different sources from which authority arises. To him, there are three inner justifications, hence basic legitimations of domination/obedience:  traditional, charismatic, and legal.

§  Traditional domination (the authority of the past) - exercised by the patriarch and the patrimonial prince – monarchies, who had hereditary right to rule, claimed to be God’s representative on earth/God’s anointed servant, thus obeying them was to obey God.

 §   Charismatic domination - the authority of the extraordinary and personal gift of grace (charisma), the personal devotion and confidence in revelation, heroism, or other qualities of individual leadership – e.g., dominance exercised by the prophet, warlord, great demagogue/orator, or the political party leader.

 §  Legal justification - domination by legality or belief in the validity of the law and functional competence based on rationally created rules. In this case, obedience is expected in discharging statutory obligations – e.g., domination as exercised by the modern servant of the state/constitutionally elected political leaders and civil/public servants.

       ii.            David Beetham

Beetham proposes three dimensions of legitimacy (levels of symbiosis/interdependence): rules, justification, and action. To him, for an authority to be legitimate, it must conform to established rules; the rules must be justifiable in terms of people’s beliefs; and there must be evidence of consent by the subordinate.

§  Legal validity - it conforms to established rules (power is legitimate where its acquisition and exercise conform to established law). 

 §  Shared beliefs/moral justification - power is legitimate to the extent that the rules of power can be justified in terms of beliefs shared by both dominant and subordinate.

 §  Consent - an expression of consent on the part of the subordinate to the particular power relation in which they are involved through actions that provide evidence of consent/support/obedience.

     iii.            Robert D. Lamb

Lamb balances Weber and Beetham’s understanding of legitimacy. He advocates understanding legitimacy as multidimensional, multilevel, and bilateral. He introduces five (5) features upon which legitimacy can be based: predictable, justifiable, equitable, accessible, and respectful.

§  Predictable - includes transparency and credibility

§  Justifiable - judgments about important values: what is right, good, proper, admirable

§  Equitable - ideas about fairness, that is, inequalities are justified

§  Accessible – people having a say in processes for making decisions that affect their lives (a weak version of the consent)

§  Respectful - treatment consistent with human dignity and pride

Lamb suggests that it is not the source of legitimacy that matters but rather the features that the authority displays.

2.      Traditional Theories of State and Law

(a)   Divine/Idealist Theory

§  God’s arbitrary will/God’s embodiment or image on earth/natural law, i.e. a state is a handiwork of God

§  The oldest theory concerned with the origin of the state and law

§  This theory was used in the medieval period to establish the supremacy of the church over the state.

§  It claims that a state is established and governed by God himself by agent, vicegerent, or vicar of God.

§  It cemented monarchism by proclaiming the King’s divine right to rule.

§  People have no right to rebel against the King; if so, it is against God himself.

§  Some of the basic tenets of this theory are: monarchy is divinely ordained; hereditary right is indefeasible, that means cannot be taken away; kings are accountable to God alone; kings can do no wrong (above the law), and resistance to a lawful king is a sin.

Examples:

King James I (UK), the first Stuart King, said, "Kings are the breathing images of God upon the earth”.

Luis XIV (France) justified his despotism by saying “I am the state having full authority directly given by God.”

The Hebrew Bible/Old Testament

God promised a nation/state/land to the Jews or Israelites, the Lord had said to Abraham in Genesis 12:1, 12:7, 15:7, 15:18–21, 26:3, 28:13 & 32:28, "Leave your country, your people and your father's household and go to the land I will show you." See also Exodus 23:31 and Deuteronomy 1:8 & 19:8–9.

Note: The notion of the ‘Promised Land’ is the basic principle of ‘Zionism’ movement, i.e., the Jew people’s quest to restore the Jewish State.

On the Government, Romans 13:1-2 says, "Obey the government, for God is the One who has put it there. There is no government anywhere that God has not placed in power. So those who refuse to obey the law of the land are refusing to obey God, and punishment will follow."

Note: Articles 3(1), 9(g) and 19 of the URT Constitution reiterate that Tanzania is a ‘secular’ state that respects the right of freedom of religion and prohibit religious discrimination.

(b)   Social Contract/Voluntarist/ Idealist Theory  

 

§  The prominent supporters of this theory are Glaucon, Thomas Hobbes, John Locke, and Jean-Jacques Rousseau.

§  The state is man-made by the contract to protect the people, i.e., it is an artificial creation, not natural.

§  At some point in their history, certain peoples spontaneously, rationally, and voluntarily gave up their sovereignties and united with other communities to form a larger political unit deserving to be called a state. 

§  To them, a state results from a deliberate and voluntary contract of a primitive man emerging from a “state of nature” or “harms”.

§  Before the state, pre-social communities/people experienced the “state of nature.”

§  Aristotle view a man as a social animal. This social animal development is enriched under the proper guidance of state. State is indispensable to effective organization and realization of moral ends.

§  Glaucon, in Plato’s Republic (Book II), gives an early version of a ‘contract view of society.’

§  To him, individuals created a state, law, and social order because they wanted to call a truce whereby they signed or made a compact or contract in which they agreed not to harm each other

§  The state or society exists because individuals make a compact not to harm each other and to protect their own self-interests

§  Therefore, the state or society is a mutual agreement of not harming one another

§  According to Hobbes, in the “state of nature”, life was short, solitary, nasty, and brutish – anarchy/lawlessness and constant loss of life and property.

§  The state came into being by the “social contract” with the surrender of power to self-rule to absolute monarchy in exchange for protection (monopoly thesis).

§  Without law, humans are at war with each other but know it is in their interest to seek peace.

§  They can get peace only by agreeing with each other to subject themselves to a common ruler who exercises the whole power of the community.

§  Locke describes the “state of nature” as a pre-political and everything was regulated by natural law, but to execute that law, the state originated from the “social contract” and people chose the constitutional government and limited monarchy/government

§  On the contrary, Rousseau describes people in the “state of nature” as peaceful, carefree life/paradise, happiness, but after the advent of economic need, social strife began, and society became pre-social.

§  The state originated through a “social contract” with the agreement to govern the territory under “general will” based on popular sovereignty.

§  The objective of the social or political or government contract was to secure the “life, property, and liberty” of the people. 

§  Governmental authority, if it is to be legitimate, must ultimately rest on the consent of the people.

§  State and law emerge as an organ of reconciliation of classes or mediating conflicting class interests, i.e., to bring harmony and protect life, liberty and property

§  Law and state are not impositions but rather a result of a ‘general will’ or ‘consensus’

Strength

Many states allow the governed to vote and recall their governors/leaders/representatives (enfranchisement)

Article 5(l) of the URT Constitution, for example, provides that “every citizen of the United Republic who has attained the age of eighteen years is entitled to vote in any public election held in Tanzania”.

Critique:

The social contract has no truth but rather a historical fiction or mythical account of how the state and law originally came about, i.e., there is no trace in any history about such a contract. These contractual forms have no binding force because the state of nature cannot create legal validity. Besides, voluntary relations between individuals and the state seems unreasonable; if so state becomes like a company. 

(c)    Marxist / Historical materialism/Class/Conflict Theory

§  Propounded by Karl Marx and Friedrich Engels - gentile/primitive, slave, feudal, capitalist, and socialist/communist states/laws

§  Before the state (pre-social period), communities were governed by natural law (law of nature)

§  The state emerged when the development of the productive forces gave rise to antagonistic social relations (class struggle)

§  The state emerged as an organ of class rule

§  The class structure of a state is linked with the development of production

§  The development of production led to the division of labour and specialisation

§  Division of labour led to insubordination and political representations (e.g., chiefs)

§  The economically dominant class emerges as the ruling class, which consolidates its power by oppressing and exploiting the weaker class

Development in production – surplus

Division of labour and specialisation – wealth

Insubordination/subjugation and political representations - classes

Class struggle/antagonistic social relations - conflicts

Dominant class/ruling class emerges to form a state and impose laws

§  Law emerges as an indispensable feature/part of class rule/state whereby it legalises/legitimises itself, maintains and reproduces class relations (status quo) – the ruling class maintain itself through coercion

§  The ruling class use law to establish state ideological apparatuses, e.g., police, Court, army, parliament, etc.

§  The state defines and imposes sanctions on forms of behaviours that threaten its reproduction/continuity/existence by monopolising the use of force

(d)   Force/Coercive/Colonisation Theory

§  Advocated by Herbert Spencer, Ludwig Gumplowicz, Gustav Ratzenhofer, and Franz Oppenheimer, Hume, Jenks-Bernhard, and Treitschke

Edward Jenks suggests that historically speaking, there is not the slightest difficulty in proving that all political communities of the modern type [that is, states] owe their existence to successful warfare.

Thomas Hobbes claims that rulers or sovereigns can come into being by conquest as well as by consent and hold power so long as their rule is effective, giving enough people a strong enough sense of the advantages derived from the settled government to make them effective collaborators in upholding the one in power.

§  Force (and not enlightened self-interest) is the mechanism by which political evolution has led, step by step, from autonomous villages to the state.

§  War lies at the root of the state

§  The state was born of force, i.e., the state is the result of the superior physical force and subjugation of the weaker section by the stronger

§  It emphasises the principle of the survival of the fittest

§  One person or a small group of people claimed control of an area and forced everyone within that area to submit to their rule

§  The state originated due to the force exerted by the strong over the weak. The idea contained in the statement is that 'war begat the king'. 

Examples:

Historical or archaeological evidence of war is found in the early stages of state formation in Mesopotamia, Egypt, India, China, Japan, Greece, Rome, Northern Europe, Central Africa, Polynesia, Middle America, Peru, and Colombia.

Formation of the State of Israel (1948/9) in the Palestine’s land or the State of South Sudan in Sudan Republic.

Critique:

This theory justifies despotism as opposed to the idea of liberty and self-determination.

 

(e)    Evolutionary/Historical/ Political Consciousness Theory

 

§  Advocated by John. W. Burgess, Maclaver, Garner, and Gettell

§  The state is a result of natural evolution, i.e., a gradual (slow) evolutionary process

§  State development is a by-product of history, i.e., the state is the product of growth, a slow and steady evolution extending over a long period and ultimately shaping itself into the complex structure of a modern state.

§  The state is neither the handiwork of God, the result of a superior physical force, the creation of a resolution or contract, nor the mere expansion of the family.

§  The key factors which played a part in the evolution of the state are natural social instinct, kinship and family, autonomous village, religion, force, economic needs and activities and political consciousness.

§  The family, the basic unit of socialization, was the sole creator of the state and one of the factors in its development.

§  The state originated from a clan-band structure which explains the formation of the world's first political structures, e.g., the AL Saud family in Saudi Arabia (Monarchy) has produced a leader to rule over the people since 1744.

§  As people increased in number, it became more important to gather the people in order.

Example:

Formation of the United Republic of Tanzania in 1964 – a conscious decision/rational choice made to unite Tanganyika and Zanzibar.

(f)     Ecological hypothesis or circumscription theory

§  Robert Carneiro rejects traditional theories of state and law in favour of the ecological hypothesis.

§  He claims that the state is a predictable response to specific cultural, demographic, and ecological conditions.

§  Therefore, the ecological thesis stresses environmental and social circumscriptions, resource concentration, and political evolution as the foundational blocks of state and law.

The strength of the Carneiro approach is that it explains why states arose where they did and failed to arise elsewhere.

3.      Relationship between State and Law

MacCormick’s typologies:

(a)   State as law-dependent

§  The state may be thought as a creation of the law, i.e., the state is nothing without the law

§  This position depends on the ‘natural law’ or ‘natural rights’ theory, i.e., law of nature preceded the state and after the state was formed it depended on the ‘natural law’ for survival

§  Law is perceived and presented as something anterior and superior to the state itself

Example:

Tanzania became a state after signing the Articles of Union of Tanganyika and Zanzibar on 22 April 1964 by Julius Nyerere and Abeid Amani Karume. Thus, the Articles of the Union (law) preceded the Union (state) and created the Union. 

§  State and state institutions were preceded by private actors and natural laws

§  State, as we know it today, emerged after the Peace of Westphalia of 1648

§  Whoever is found in the position of exercising governance in human society has to make specific rules and ordinances for governing it and ensure that right conduct is upheld and wrongdoing is adequately restrained and, when necessary, punished appropriately.

§  The upheavals of the reformation led to increasing difficulty in accounting for the legitimacy of one ruling house or party over another, indeed for the legitimacy of governments at all.

§  In response, there emerged ‘social contract’ theories in various forms.

§  According to John Locke’s idea of rational natural law, even in a ‘state of nature’, that is, outside any form of political organization, humans would have rights and owe each other corresponding obligations.

§  To avoid a spiral of violence and private action to enforce order, persons in the state of nature would therefore have compelling reasons to agree on establishing a government.

§  That government would be charged with upholding everybody's rights and legislating in clear terms common provisions identifying and delimiting otherwise dangerously vague rights.

§  To this end, the agencies required for a secure government would include a legislature, an independent judiciary, and an executive branch concerned with external protection and internal law enforcement (Charles Montesquieu’s version of the separation of power).

(b)   Law as state-dependent

§  The law is nothing without the state

§  The state may be perceived as the unique producer of anything properly describable as ‘law’, i.e., state and state institutions predate the ‘law’ as Medieval Monarchies were law in themselves.

§  Some scholars find ‘natural law’ or ‘natural rights’ profoundly implausible

§  To them, human governments make laws, and some of these laws confer rights

§  The only genuine rights humans can have are those that the state is powerful enough to enact or recognise and enforce or secure

§  There is no law anterior to the state, for the law is the creature of the established human ruler and is explicable simply in terms of the will and command of the ruler.‘

§  Stable governments exist where there are stable habits of obedience, and the law is none other than the commands of those who are habitually obeyed.

(c)    State and law coexist but are not identical

§  This approach faults the first two thoughts in that they do not consider the evolution of society, state, and law.

§  Law and government should be seen as historically co-evolving systems, with state-made law as simply one form of law,'​ ​most secure and genuinely law when supported by and partly grounded in custom rather than mere force.

§  The state may be thought coexistent with the law but not fully identical to it

§  Existence of several identical orders - it is possible for several orders to coexist (legal pluralism), e.g., law merchant (regulating international trading) coexist with Customary, Canon, and Islamic laws (regulating the respective organisations, family relations, and succession).

§  The above laws could coexist with those administered by the Courts (Judiciary) or in quasi-judicial bodies.

§  Centralization of governmental power was part of the evolution of the state as a form of polity.

§  The tendency to establish a monopoly over law should not blind us to forgetting the law rooted in the usages and practices of humans in social coexistence.

§  Contemporary societies have many forms of normative or institutional normative orders independent of the state, even though the state may purport to regulate them under overall sovereign authority.

§  Those who seek to exercise political power in society wish to assert the power of changing the rules by which people live, superseding older forms and imposing new ones, and organizing sanctions to establish the force and authority of the state order.

§  Unless the legitimacy of state-made law is established as a part of popular custom, a law promulgated by the state in these circumstances will be a very inferior species of the genus.

(d)   State and law are identical/false dualism of state and law/ identity of law and state

 

§  State and law are two sides of the same coin

§  The state and the law may be considered identical as they have the same object but are viewed differently.

Identity of law and state (Hans Kelsen)

 

The state does not make the law and vice versa. In truth, they are the same object viewed differently.

§  The state is simply the point of imputation to which public legal acts are imputed

§  State actors are not the only ones who provide social services such as hospitals, water, security, and education.

§  Acts of individuals are imputed/attributed to the state as the single organized reference point behind the myriad of human actions.

§  Therefore, a state becomes a corporate entity comprising the principal organs of government organized through public law.

 

Similarities between the 1^st and 4^th approaches of state and law (Locke and Kelsen)

–        Any state has to have a constitution that confers the general powers of government, and all the state's law then depends on being valid under the Constitution.

–        The constitutional legitimacy of law-making and law-applying follows from the fact that there is a constitution that ought to be respected and that cannot be respected save by accepting laws validly enacted under it and accepting the judicial application and police enforcement of the enacted laws.

–        Any person can be a head of state, or any gathering of persons, a parliament or congress, or any group a bench of judges, requires there to be some constitution to which we can look as defining and conferring these offices.

–        Imputation of acts to a state does require just such a constitutional organization.

Questions

•        Based on the findings of the Court in S.M.Z. v. Machano Khamis Ali & 17 Others [2000] TZCA 1, what is a state in the Tanzanian context?
•       Is the Constitution a social contract entered into by persons exercising contractual powers conferred by the law of nature?
•        What are the functions of the state and law? (Parts 1 and 2 above – Marxist and Bourgeois views)

  

  Readings

Austin, J., The Province of Jurisprudence Determined 

Beetham, D., The Legitimation of Power

Bodin, J., De la Republique (‘The Republic’)

Brierly, J.L. and Waldock, H. The Law of Nations: An Introduction to the International Law of Peace, 6^th Ed.

Carneiro, R.L., A Theory of the Origin of the State

Carneiro, R.L., Ed., The Evolution of Society; Selections from Herbert Spencer's Principles of Sociology

Denisov, A., Theory of State and Law

Engels, F., The Origin of the Family, Private Property and the State

Fuller, L., The Morality of Law

Hart, H.L.A., The Concept of Law

Hobbes, T., De Cive ('On the Citizen')

Hobbes, T., Leviathan

Jenks, E., A History of Politics

Kelsen, H., General Theory of State and Law (The Pure Theory of Law)

Lamb, R.D., Rethinking Legitimacy and Illegitimacy: A New Approach to Assessing Support and Opposition across Disciplines

Lenin, V.I., State and Revolution: Selected Works, Vol. II

Locke, J., Second Treatise of Government

MacCormick, N., Questioning Sovereignty: Law, State, and Nation in the European Commonwealth

Machiavelli, N., The Prince

Maina, C.P., Human Rights in Tanzania: Selected Cases and Material

Marx, K., The Communist Manifesto

McCullough, A., The legitimacy of states and armed non-state actors: Topic guide

Montesquieu, C., L’Esprit des Lois (The Spirit of Laws)

Oppenheim, L., International Law: A Treatise. Vol. I: Peace. (8^th Edn. edited by H. Lauterpacht.)

Oppenheimer, F., The State (Transl. Gitterman, J.M.)

Pashukanis, E., The Marxist Theory of State and Law

Rousseau, Contrat Social (‘Social Contract’)

Weber, M., Politics as a Vocation