Many ancient scholars believed that law came from gods of justice, and it was generally believed that in pronouncing justice, one was acting under the command of the gods or divine inspiration of the gods.
There is no consensus of opinion on where law comes from. Law, just like language, grew slowly until where it has reached. In England, for example, English was a language spoken by the poor, and French was the official language of the courts (source: Steven Masiga).
Philosophers have variously engaged in intellectual and philosophical arguments on where exactly law comes from. There are several scholars who claim that law traces its existence from customs of communities. At some point, priests were also lawgivers.
Generally, it is acceptable that law may have evolved from the following: judges as givers of law; law as given by God; law was also said to be from gods, especially gods of justice; law can be traceable from village patriarchs; law also comes from the sovereign and themselves.
Customary law was said to bind only those who were united by blood.
The origin of law is multifaceted, and its origin should be comprehended from a pluralistic angle. It ought to be viewed from several angles; law cannot be traced to a single source.
In the formative days during the evolution of law, the priests laid claim to being the founders of law because, at that time, when law developed, writing had not taken shape. Therefore, priests took it upon themselves to memorize the law. However, with time, the priests were shunted aside as the skill of writing developed. A class of men who had now learned how to write came out to denounce the priests as lawgivers.
In the formative days of studying law as an academic discipline, one had to pursue two degrees at once, e.g., LLB or LLM. Those studying law were assumed to be studying two degrees concurrently: secular law and canonical law. The import of the phrase LLB or LLM is premised on this.
In jurisprudence, there is no settled opinion on what law is, as different schools of law view law differently. The realists have their own opinions of what law is, while the positivists and sociologists each view law from their own philosophical dimensions.
The historical school of law laid a foundation upon which the sociological school was built. The historical school antedates the work of Kelsen and others. Prof. Kelsen believed in removing governments through coups, and that is why his theory was roundly rejected in Uganda under the 1995 Constitution, as amended, particularly Article 3, and in countries like Pakistan, which firmly believe that law comes from Allah, especially as per their 1947 legislative drafting.
Notable writers in the 17th century began to emphasize the spirit of the Volksgeist. For example, Savigny claimed that law is not enacted but rather found in society, which develops from the manners of the people.
Arguments were advanced by several scholars, those in favour of codification of law, while others were against the idea of codifying law, claiming that codification of law would lead to imprisonment or caging of the law and hence limit its development.
The positivist school also had its proponents and opponents. In the Bugisu region, for example, there are several groups opposed to the Cultural Leaders Act and several provisions of the Constitution of Uganda that regulate culture and customs. I find such individuals falling within the sociological school, while those who are pro-legislation on Bukuka fall within the positivist school of thought.
The positivist school believes that law comes from the state, while the sociologists, just like the historical school, claim that law is not made but rather found, and that law is antecedent to the state, stating firmly that law develops from the behaviors of the people.
Another notable figure that I cannot gloss over as far as legal thought and philosophy are concerned is Bentham. He was the son of a wealthy London attorney. His genius was of the rarest quality, as he was both talented and possessed the capacity and acumen of a jurist and logician. Bentham was utilitarian in nature and believed in the enactment of laws that would bring happiness to the greatest number of people.
There is unsettled intellectual debate on both Austin and Bentham as to who mentored the other. Another equally notable jurist was Sir Henry Maine (1822–1888), who indulged in a comparative study of legal institutions of various communities and laid down a theory of the evolution of law. He made great strides and improvements in the sociological school of law and strongly believed that law came from the gods.
The writer is an interdisciplinary scholar based in Mbale. Tel: 0782231577.
