Power and Law

Can the Label ‘Law’ Apply to Statutes as Amoral as those Imposed by Dictators?

Obote Odora*


Should the judicial system use the label “law” to  apply to rules as amoral as ‘decrees issued by military juntas’ or other bad, flawed or ‘wicked’ laws adopted by even civilian democratically ‘elected’ regimes that discriminate against, or targets  indigenous communities, individuals, minorities, or members of ethnic, political, religious or social groups for the reasons that they exercise unrestrained power? In dealing with such “laws” should the judges take sides in the philosophical debate over the concept of law – of what law “is” and what law “ought to be”? In this context, we consider the voices of prominent legal scholars, and re-examine whether morality is a relevant and necessary ingredient for achieving justice according to law.


In considering  whether there are relationships between law and morality, we may start by posing the question whether a government, indeed any government, has unfettered authority to give, or take away, rights of and from individuals as and when it chooses simply because of power they exercise over the people? Are there limits to what rights – civil, political economic or social rights -, a government can or cannot take away from its citizens regardless whether or not such a law is enacted by a ‘legally’ constituted body, as for example, a Parliament, and further, whether such ‘legal’ authority can be vested in a nominal democracy, or a government led by a group of men or a single ruler in a dictatorship?

After the defeat of Gen Idi Amin in 1979, the post-Amin government inherited the laws, rules and regulations enacted or adopted during the eight years of the military dictatorship. The new government also absorbed many of Amin’s civil servants, including judges, and a few military officers and cabinet ministers. There were no investigations or prosecutions of alleged perpetrators who committed atrocious crimes under the dictatorship. Some flawed, unjust or ‘wicked’ laws, as for example, the ‘Departed Asians Custodian Property Board’, a department established by the Amin’s regime to manage looted properties of Ugandans of Asian origin that were stripped of their citizenship and deported, continued to apply. Other obnoxious laws (Decrees issued by the regime) adopted by the Amin’s regime, including laws that are discriminatory or undermined rights of citizens, are still on the statute book, forty years after the military dictator was deposed.

The idea that rights are given to the people from God has not been so familiar to continental European constitutions. Based on this view, several American courts consider even their legitimacy to decide on the rights of the people is directly based on the pre-constitutional rights given by God. According to historical European tradition, rights are given by the state, that is, by the political authority, and not God. For this reason, continental Europeans have a different view of the rule of law, which is not considered as a pre-constitutional limit of sovereignty but rather as the obligation to observe the constitution imposed on all state bodies by the supreme law, the Constitution.[1]

Thus, since law is a product of Constitutional process, some have argued, it is a function of politics and power. In practice, law is very often tailored to protect the interests of the ruling, or economically dominant, class, that is, persons or institutions who exercise effective power.

As a former British colony, at independence, Uganda ‘received’ or adopted the English Common Law, based on the Reception Statute.[2]  The ‘received’ laws mirrored or re-produced laws that the British colonial authority had used to protect its vast and selfish interests in the colony. The colonial laws were directly derived from power the colonial agents exercised over the natives – the indigenous people.

As a general rule, all British former colonies at independence, adopted Reception Statute by which the new nation receives the English common law before its independence to the extent not explicitly rejected by the legislative body or Constitution of the new nation. Thus, Reception Statutes generally applied the English common law dating prior to independence, as well as the precedents originating from it, as the default law, because of the importance (mainly for the British interests) of using an extensive predictable body of law to govern the conduct of citizens and business (especially to protect the legality of unfair agreements, properties unlawfully seized, or unfair and unequal contracts signed before independence) in the new state.

The English common law system is unwritten practice of legal traditions that are based on precedents set by legal decisions. Historically, the term common law refers to unwritten laws that included the accepted behaviours, local customs and traditions of Great Britain.

However, use of, or reference to judicial precedents, under English common law, may be misleading because a precedent is not necessarily one decision. In fact a legal ruling may be based on a precedent created by, or derived from, a large grouping of cases and accepted by the courts’ practice that came before it.

Having received English common law, contemporary Uganda law is based on those imported English Common Law, customs, precedents and all problems associated with its application.[3]  On the other hand, African Customary Law is also one of the sources of applicable law in Uganda. However, Uganda African customary law, which often vary from tribe to tribe (there are at least forty-five different tribes in Uganda) is applicable only when it does not conflict with statutory law or imported and received colonial law.

In sum, the English common law is a system of principles and rules grounded in universal custom (as defined by the English) or natural law and developed, articulated and applied by courts in a process designed for the resolution of individual disputes. In this sense, the common law is the historic basis of all Anglo-American legal system as the United States was also once a British colony.[4]

Civil Law, or continental law, on the other hand, is a legal system originating in Europe, intellectualized within the framework of Roman law. The main feature of Civil Law is the fact that its core principles are codified into a referable system which serves as the primary source of law. It holds case law (precedents) secondary and subordinate to statutory law.[5]

When scholars discuss what law is, recognizing that the Common Law or the Anglo-American system view sources of law differently from their counter parts who practice Civil Law or Continental Law, it is pertinent that for justice to be achieved (whatever justice means), there must first be a common understanding of what ‘law’ really means both as a theory and as demonstrated by practice.

Early legal scholars, in both Anglo-American and Continental Legal systems have wrestled with the idea or concept of law. One of these legal scholars was Austin, who, for example, defined law as the command of the highest legislative power called the sovereign.[6]  Austin appears not to have considered customs or precedents as ‘law’.  Gary, on the other hand, opined that law consists in the rules laid down by judges, implicitly advocating for precedents as ‘law’. A statute is, for Gary, not law, but only a source of law which becomes law only after it has been interpreted and applied by court.[7]  Both definitions of law appear to avoid any conclusions on the relationship, if any, between morals and law, and both scholars appear to defer to the reader to decide what ‘law’ is or is not. However, according to Fuller,[8]  if our interests lie in the ideal of fidelity to law, then it becomes important what position is assigned to the judiciary in the general framework of the government and acceptance of the idea of a ‘higher law’ or what some scholars have described as ‘the command theory of law’?[9]

Greenberg suggests that there is a conceptual connection between legal and moral obligation: legal requirements are those that political morality affirms in the light of relevant features of social practice.[10] Greenberg treats a theory of law as a constitutive explanation of the context of law, showing how, in principle, legal rights, duties, powers and immunities are to be correctly ascertained. A proposition of law, according to Greenberg, is sound or true only when derived from a general theory of law capable of showing not only which features, our practice are important authentic instances of practice when correctly understood – but also how they reflect or embody the principles of justice we affirm as a matter of political morality. Greenberg therefore treats theory of law as a constitutive explanation of the content of law, showing how, in principle legal rights, duties and immunities are correctly ascertained.[11]

Hart,[12] a proponent of positivism,  rejects ‘the command theory of law’ according to which law is simply a command backed by force sufficient to make it effective. He observes that such a command can be given by a man with a loaded gun, and “law surely is not the gun man situation writ large”.[13]  Hart’s conclusion is that the foundation of a legal system is not coercive power, but certain “fundamental accepted rules specifying the essential law making procedures.”[14]

Fuller, Hart and their respective proponents appear to agree on possible relationship between law and morality; or as Fuller puts it “inner morality” is necessary for fidelity to law. The views of other scholars, as we shall shortly discuss, fluctuate between these views and, to that extent; there are conflicting understanding of what law “is”, or what law “ought to be”, and generally, the disagreement of the concept of law itself.

These views that fluctuate between those of Fuller and Hart, we may describe as ‘intermediate positions’, that is, positions incorporating both views. To that extent, we might say that while in one sense the law is a product of its officially recognized sources, in another sense it consists, in its ideal form, in the standards of justice that any government, properly respectful of human dignity, or common good, would uphold.[15]   Allen suggests that the law is constituted neither by its socially authoritative sources alone nor by moral judgement about their consequences: It is, instead, a moral construction of legal practice – the product of a theory that interprets that practice as a collaborative quest for justice, seeking harmony between moral principles, on the one hand, and practical manifestation of principle, on the other hand.[16]

Although legal obligations are genuine moral obligations, they form nonetheless a distinctive sub-set. They are the product of political community in a democratic and not authoritarian or military dictatorship. Thus, in a functional democracy, in sharing a government people also share a political tradition. Their allegiance is implicit in the collaboration entailed by efforts, across generations, to confine state power within the limits of legislative authority.

It is therefore relevant to contrast the compatibility with moral realism of each of the opposing views of law. Each distinguishes, in principle, between legal facts and moral facts; they differ only in the way they articulate the distinction. According to Dworkin, the Common Law approach, by contrast is more constructivist.[17] But Allan submits that, if, as Dworkin suggests, we must interpret the shared practices in which moral concepts figure, our interpretative efforts must encompass both legal and moral practice. In sum, it assumes that the path to justice, at least initially, consists in making moral sense of our own legal and political practice, giving presumptive if provisional force to assumptions embedded, on a careful analysis, within it.[18]

On the other hand, Greenberg’s ‘moral impact theory of law’ is essentially a theory of statute law (continental or civil law), marginalizing the common law. But in another sense the law consists (primarily) of legislative decisions that may command or authorize anything, even truly evil actions, in another sense, it cannot contain evil norms because such norms cannot be part of a ‘moral profile’.[19] In substance, the ‘moral impact of law’ joins forces with legal positivism if the law is conceived as morally binding the laws that compose it are ascertainable independently of moral judgement. Thus, as argued by Dworkin, a constructive interpretation of law will inevitably require certain precedents to be rejected as ‘mistakes’.[20]


To address a ‘theory of law’ and whether there is a connection between ‘law’ and ‘morality’, that is – whether ‘wicked’ laws, adopted based on naked power exercised by those in authority,  should be applied and adhered to by judges –  a good starting point is Hans Kelsen Pure Theory of Law. Kelsen was a great legal scholar and theorist.[21]  In this brief comment, I cannot pretend to explain fully Kelsen’s Pure Theory of Law, much less his novel and related theory of the basis of international law. Here I present an overview of what Kelsen contributed in answering of certain fundamental questions about law, morality, and of the other legal scholars who critiqued his work before providing my own conclusions and their impact on my intellectual appreciation of law.

According to Kelsen, the traditional legal philosophers at the time hopelessly contaminated law with political ideology and moralizing on the one hand, or with attempt to reduce the law to natural or social science on the other hand. He found both of these reductionists endeavours seriously flawed. Kelsen suggested a ‘pure’ theory of law which would avoid reductionism of any kind. The jurisprudence Kelsen proposed “characterizes itself as a ‘pure’ theory of law” because it aims to focus on the law alone and this serves as its “basic methodological principle.”[22]

The main challenge for a theory of law as Kelsen saw it is to provide an explanation and the normativity of law without an attempt to reduce jurisprudence or ‘legal science’ to other domain. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning: we attach a legal-normative meaning to certain actions and events in the world. Thus, an act or event gains its legal-normative meaning by another legal norm that confers this normative meaning on it. An act can create or modify the law if it is created in accordance with another ‘higher’ legal norm that authorizes its creation in that way. And, the ‘higher’ legal norm, in turn, is legally valid if and only if it has been created in accord with yet another ‘higher’ norm that authorizes its enactment in that way.[23]

The problem with Kelsen’s theory is that the chain of ‘higher’ authorization to justify the legal-normative creation comes to an end: there isn’t a higher legal norm that authorizes the enactment of the original norm (say a country’s Constitution or basic law). At this point Kelsen argued one must pre-suppose the legal validity of the Constitution. In other words, there is a presumption that the constitution is validly enacted and therefore legal. Yet, at some point, in every legal system, we get to an authorizing norm that has not been authorized by any legal norm, and thus it is to be presupposed to be legally valid (as, for example, unlawful but successful military coup). The normative content of this presupposition is what Kelsen called the basic norm. The basic norm is the content of the presupposition of the legal validity of the first (original or historical) constitution of the relevant legal system

As Kelsen saw it, there is simply no alternative. More precisely, any alternative would violate David Hume’s injunction against deriving an “ought” from an “is”. Kelsen took the view that enactment of a law are all within the sphere of what “is” the case. They are all within the sphere of actions and events that take place in the world. The law, or legal norms, are within the sphere of “ought”, they are norms that purport to guide conduct. Thus, to get an “ought to” type conclusion from a set of “is” premises, one must point to some “ought to” premise in the background, that is, an “ought” that confers the normative meaning of the recent type of “is”. Since the actual, legal, chain of validity comes to an end, we inevitably reach a point where “ought” has to be presupposed, and this is the presupposition of basic norm.[24]

The idea of basic norm serves three theoretical functions in Kelsen’s theory. First, it grounds a non-reductive explanation of legal validity. Second, it grounds a non-reductive explanation of the normativity of law, and third, it functions to explain the systematic nature of legal norms.[25] However, Kelsen made at least one exception: A legal norm is not an unqualifiedly “valid” norm unless the legal order of which it is a part is on the whole effective in the society in which it is supposed to prevail. This effectiveness may or may not be due to the coercion of law.[26]

Most modern positivists have followed Kelsen in positing instead an independent (of morality) realm of legal prescription. Kelsen’s basic norm is mainly a procedural one. Any content requirement, Kelsen points out, begins to look too much like it blurs the boundary between moral and systems of prescription.

H.L.A Hart, a legal positivist, follows Kelsen but does not appear to directly refer to Kelsen or give sufficient credit for his contribution to the idea of Pure Theory of law.[27]  Hart’s main development beyond Kelsen is to transform Kelsen’s basic norm into a more complex analysis of the law that distinguishes two kinds of “rules”. Hart’s explicit motive is explanatory rather than logical. He is trying to explain how we can coherently explain of the development from primitive to “evolved” legal system. A legal system, Hart says, consist of “primary rules”. These primary rules confer (legal) rights and duties. Therefore, legal commands, along with enabling legislations repealing, declaring, etc., all create change or remove rights and duties. They do this whether or not they are backed by punishment.[28]

The primary rules are valid if they follow from what Hart calls “secondary rules”. We can view the evolution of a secondary rule structure as a sign indicating that the legal system is maturing. The secondary rules fall into three categories which remedy what Hart portrays as three “weaknesses” of primitive law. The rules of recognition counter the vagueness and uncertainty of traditional law. It gives some explicit criteria for determining what counts as primary legal rules. Usually its inclusion in some canonical collection of the promulgated laws (in the Anglo-American systems, for example) the rule of recognition includes (somewhat vaguely) the previous decisions (precedents). In positive systems, this secondary rule is implicit, vague or simply absent.

Natural law scholars, however, differ with the positivists. One of the leading naturalists is Professor Lon L Fuller. Rephrasing the question of “law and morals” in terms of “order and good order,” Fuller criticizes Hart for ignoring the internal “morality of order” necessary to the creation of all law. He then rejects Hart’s theory of statutory interpretation on the ground that we seek the objectives of entire provisions rather than the meanings of individual words which are claimed to have “standard instances.” [29]

According to Fuller, Hart’s arguments seem to suffer from a deep inner contradiction. On the one hand, he (Hart) rejects emphatically any confusion of what “is” with what “ought to be”. Fuller insists, Hart will tolerate no “merger” of law and conceptions of what law ought to be, but at the most antiseptic “intersection”. Intelligible communication on any subject, he seems to imply, becomes impossible if we leave it uncertain whether we are talking about what “is” or what “ought to be”[30]

In his extensive critique of Hart, Fuller argues that at times Hart seems to be saying that the distinction between law and morality is something that exists and will continue to exist however we “may talk about it.” In other words, it expresses a reality which, whether we like it or not, we must accept if we are to avoid talking nonsense. At other times, Fuller continues, Hart seemed to be warning us that the reality of the distinction is itself in danger and that if we do not mend our ways of thinking and talking we may lose a “precious moral ideal” that of fidelity to law. Fuller concludes: it is not clear, in other words, whether in Hart’s own thinking the distinction between law and morality simply “is” or is something that “ought to be”.[31]

After a heavy critique of Hart, surprisingly, Fuller also points out that “…any criticism of Professor Hart’s essay as being self-contradictory would be both unfair and unprofitable. There is no reason why the argument for a strict separation of law and morality cannot be rested on the double ground that this separation serves both intellectual clarity and moral integrity.”[32]

If the criticism of Professor Fuller, of Professor Hart’s reasoning, is tenable, and there are difficulties in bringing these two lines of reasoning into proper relation to one another, these challenges affect also the positions of scholars who identify with the views of Austin, Gray, Holmes and others. For the naturalists like Fuller, reject the position adopted by positivists on the double ground that its intellectual clarity is specious and that its effects are, or may be, harmful. According to Fuller, Austin’s definition of law, for example, violates the reality it purports to describe. Being false in fact, it cannot serve effectively what Kelsen calls “an interest of cognition”. On the other hand, Fuller and his fellow naturalists assert that under some conditions the same conception of law may become dangerous, since in human affairs men mistakenly accept as real trends, by the very act of their acceptance, to become real.[33]

Fuller is persuaded that “positivistic” theories have had a disturbing effect on the aims of legal philosophy. According to him, Positivists merely describe what the law is but does not indicate its purpose.  Fuller reasoned that there is indeed no frustration greater than to be confronted by a theory, which purports merely to describe, when it not only plainly prescribes, but owes its special prescriptive powers to the fact that it disclaims prescriptive intentions.[34] Fuller suggests that

Law, as something deserving loyalty, must represent a human achievement; it cannot be a simple fiat of power or a repetitive pattern discernible in the behaviour of state officials. The respect we owe to human laws must be something different from the respect we accord to the law of gravitations. If laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can approve in principle even at the moment when it seems to us to miss the mark.[35]

Fuller, to that extent, argues forcefully for recognition of the ‘inner morality’ of law. It is therefore not sufficient that every law is ‘deserving of loyalty’, particularly if that law is morally repugnant.  This, then, is a rejection of ‘wicked’ laws, or laws based on raw power.

Before we conclude this part of the discourse, however, we must revisit Kelsen. Professor Kelsen emphasises that before we can distinguish between what is law and what is not, there must be an acceptance of some basic procedure by which law is made. In any legal system there must be some fundamental rule that points unambiguously to the source from which laws must come from in order to be laws. This rule, Kelsen called it “the basic norm”. In his own words:

“The basic norm is not valid because it has been created in a certain way, but its validity is assumed by virtue of its content. It is valid, then, like a norm of natural law….The idea of a pure positive law, like that of natural law, has its limitations.”[36]

The notion of a basic norm is, admittedly a symbol, not a fact. It is a symbol that embodies the positivist quest for some clear and unambiguous test of law, for some clean sharp line that will divide the rules which owe their validity to acceptance and intrinsic appeal. To the naturalist, law cannot be built on law. First of all, the authority to make law must be supported by moral attitudes that accord to it the competency it claims. In this context, the naturalists are dealing with a morally external to law which makes law possible.[37]

There are many dictatorial governments, institutions and organisations that adopt naturalist view of law for purely selfish reasons. Christianity, for example, mainly for selfish reason, aligns itself with the naturalist’s interpretation of the theory of law. However, it is chiefly the Roman Catholic Church, in their writings that vigorously defends the theory of natural law. Not simply as a search for principles that will enable men to live together successfully, but the Roman Catholic Church and the Pentecostals, and Evangelists Christian denominations defend it as a quest for something that can be called “higher law” (read God).  God may, or may not, exist. But Christianity has appropriated the idea of God to their imagination and undermined the very idea of universal spirituality. Dictatorship, like Christianity and other authoritarian states or institutions, have this identification of natural law with law that is above human laws – God’s law. These autocratic institutions defend any doctrine that asserts the possibility of authoritative pronouncements of the demand of natural law.

It is trite that law is not dimensions or directions of state power. It is for this reason that Judges exercise a power delegated to them by the supreme law making body (usually a national Parliament or Legislature) and are commissioned to carry out its direct or circuitous command (law directly enacted by Parliament or Rules and Regulations made pursuant to a parent or primary statute). It is not for the government, Heads of State or President of a country, to instruct the Judges what to do or how to interpret the law. That independence of Judges from control by the Executive or Parliament is essential for the proper application of the law and administration of justice.

In practice, and indeed in many countries, Fuller persuasively argued that there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system. Thus, when a system calling itself law is predicated upon a general disregard by Judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even its grossest, by retroactive ‘statutes’, when it has only to resort to forays of terror in the street which no one dares challenge in order to escape even those scant restraints imposed by the pretence of legality – when all these things have become true of a dictatorship, it is not hard to deny it the name of law.[38]

In sum, certain minimum conditions must be met before ‘law’ becomes accepted as law. The Naturalists in their criticism of the Positivist, on the meaning of “morality” argues that the inner voice of conscience, notions of right and wrong based on religious belief, common conceptions of decency and fair play, culturally conditioned prejudices – all of these are grouped together under the heading of “morality” and are (or indeed should be) excluded from the domain of law. The Positivist, in rebuttal, point out that there is no such a thing as an immoral morality and that there are many standards of what “ought to be” that can hardly be called moral. [39]

“Morality” as understood by the Positivist cannot, for example, include culturally conditioned prejudices, amongst others. Positivist, therefore distinguish law from morality, for the word “morality” stands indiscriminately for almost every conceivable standard by which human conduct may be judged that is not itself law. Therein in lays the imperative to appreciate a uniform definition or understanding of morality vis-à-vis law.


In reflecting on the relationship between law, power, morality and justice, we are confronted by opposing views with respect to what constitutes “sources” of law which validates a given law. First, if we are generally unwilling to identify law with its social sources, regardless of their moral merit, we may be tempted, instead, to regard it as the moral consequences of those sources.  In that sense, it is the consequences, rather than sources of law, that is contentious. Second, the opposing view suggests that the law consists in the rules or rulings that derive their authority from officially acknowledge source, which is precedents derived from previous judgements and decisions of the courts and, therefore, the law consists in the moral obligations arising in response to such rule or rulings.[40]

The intermediate position available between the two opposing views suggests a possible incorporation of both views. Thus, we can say that while in one sense the law is the product of its officially recognised sources, in another sense, it consists, in its ideal form, in the standards of justice that any government, properly respectful of human dignity or the common good, would uphold.[41]

Overall, justice is itself a function of history, power and practice. Our principles of justice in a functional democracy portray legal practice in its best light by articulating the grounds on which we distinguish between its authentic and unauthentic elements – preserving those features of practice that experience has taught us to value as necessary to sound governance or the public good. We should know what is just, in so far as we can attain such knowledge because our practice gives us evidence of what works and what does not.[42]

In sum, legal practice must be understood as an endeavour worthy of the allegiance of participants (judges, prosecutors, defence counsels, interpreters, witnesses and court clerks), in short, whether those individuals are officials of the court, state institutions or private citizens; it allows even taken-for-granted paradigms to be challenged in pursuit of a unified moral vision. Yet, in undemocratic society or authoritarian regimes, – where judges may be compromised, prosecutors allegedly allied to the states, defence teams are afraid of state machinery and witnesses are prone to bribes or threats, whether by the prosecution of defence teams – we, as the legal profession, are often forced to choose, impossibly, between respect for justice and adherence to ‘wicked’ laws, enacted by authoritarian regimes and administered by a compromised Judiciary – and, it is no answer to say we should follow the law until it becomes indeterminate, allowing us to revert to justice. A level playing field for all parties to the proceedings, and the independence of the Judiciary, are preconditions for achieving justice according to law.

In theory, law diverges from justice only in the sense in which any approximation to an ideal must fall short by its own standard. The constraints of precedents (in common law jurisdictions), for example, do not impose arbitrary impediments to truth: they regulate the deliberative process necessary to further its attainment. Thus, adherence to precedents, as we do in common law jurisdictions (but not in civil or continental law where decisions are based primarily on interpretation of a given statutory provisions), within the relatively flexible standards normally applied, ensures that like cases are decided alike.[43]

When we invoke the value of justice in debate with our fellow citizens – when political philosophy enters the public realm of action and decisions – we cannot escape appeal to the common ground of good practice and tradition. However, in an authoritarian regime, or a dictatorship – a situation where free speech is limited and the public is generally afraid of the regime – , where does one find the ‘common ground of (previous) good practice and tradition’ to fall back on?

Allan makes a persuasive argument when he submits that ‘while law may differ from justice when we contemplate dubious rules or precedents, inconsistent with principles we think correctly instantiated in our leading paradigms of the law as a whole embodies justice when we focus on the scheme of principle we try to construct in the spirit of integrity’.[44]

However, Allan’s point presupposes that grievous injustice is excluded from the outset by the requirement of moral coherence: the law is interpreted as a unified scheme of justice, consistent with fundamental rights of persons that our constitutional theory affirms. To that extent, while general rules may sometimes threaten these rights when read in isolation, their application to particular cases is always sensitive to the moral principles that underpin our allegiance – the moral condition on which our obligation to obey the law depends.[45]  Allan’s analysis therefore, on the ground of ‘moral principles that underpins our allegiance’ eliminate  the application of ‘wicked’ laws  under regimes such as Hitler’s Germany, Pol Pot’s Cambodia, Bokasa’s Central African Republic, or Amin’s and Museveni’s Uganda.

A second point Allan raises is that, in theory, there is no genuine conflict between law and justice as long as the internal interpretative viewpoint maintained; individual conscience of a judge marches in tandem with adherence to legality. It is only from an external perspective, born of radical scepticism, that justice and integrity diverge when faith in the practice of law is destroyed by instances of oppression or injustice that others refuse to characterize in that way – when prevailing notions of dignity or equality are perverse and implausible – scepticism is the only refuge. Integrity must be repudiated because legal practice can no longer be portrayed as legitimate. But from the perspective there is law only in the limited ‘sociological’ sense: the state enforces its illegitimate demand against people who owe no genuine duty to comply. [46]

I absolutely concur with Professor Allan on this point. A flagrantly wicked statute, if taken at face value, can be identified as law only by the detached observer. A law targeting particular persons for punishment undercuts any pretensions to legal status: it proclaims itself of its vindictive attack, masquerading as law. It contradicts on its face its implicit claim to legal and moral authority.[47]

Justice is sought by adherence to good practice, understood in the ideals it embodies on correct analysis. Having noted the correct legal principles, does law, or indeed ‘good’, law automatically translate into, or deliver, justice to victims or other aggrieved parties? As observed above, the concept of justice is generally problematic, but is particularly complex, when victims seek justice in national or international courts from acts committed by perpetrators who served in  former obnoxious regimes but are still members of the new regime charged with the responsibility of prosecuting persons who committed atrocious crimes when implementing the ‘wicked’ laws. This raises moral as well as legal dilemma.[48]

In criminal cases, whether before international or national courts, most survivors or friends of victims often demand, and publicly state that they want or seek justice. But do they really seek justice or vengeance? [49] What of those who demand the death penalty (and many victims I have interviewed regret that international courts do not impose the death penalty) – do they seek justice or revenge?

On the other hand, theoretically at least, it is possible to seek and obtain justice according to law after a dictatorship is removed, in many cases through armed conflicts and extreme violence (Hitler’s Germany or Amin’s Uganda, etc.,) or a negotiated agreement to end the armed conflicts (Federal Republic of Former Yugoslavia, Sierra Leone, Central African Republic, etc.,) during a peaceful period when institutions of the State function as they are intended to. But even during peace time, it remains difficult to seek and get justice. Without discussing in significant details, I note that in most developing countries, and in some developed states as well, religious, political, ethnic or social minorities find it difficult to access courts or to obtain justice even during peace time.

In many cases, the laws (‘wicked laws’ or laws based on power) expressly discriminate against minority groups, including ethnic, religious or political minorities. Girls and women, in most part of the world are discriminated by law in land ownership, inheritance or access to schools, institutions or places of work. Most of these discriminations are carried out within existing laws of the country duly enacted by their respective legislative organs.  Some of these Parliaments claim to be democratically elected and a representative of the people – the electorates.

However, injustice is most prevalent in the administration of criminal law particularly in dysfunctional states, military dictatorships or authoritarian regimes. In addressing issues relating to justice according to law, I briefly examine the situations in Germany after WWII and thereafter consider a few examples from Uganda, for the simple purpose of demonstrating the inability to seek and obtain justice under a military dictatorship or token civilian administration headed by military men in civilian clothes who often use force to gain power and ‘wicked’ laws to maintain power.


After 1945, the International Military Tribunal (“IMT)” in Nuremberg and the German courts were confronted with the unprecedented atrocities committed during the Nazi era.  In response to this traumatic history, the judges had to find a way to both represent and judge a vision of atrocity that seemed to defy rational and judicial explanation. From a jurisprudential point of view, the task of rendering justice to the Nazi horrors raised the question of the relation between law and morality—an issue leading to the core of the controversy between natural law theory and legal positivism as discussed above.  It is the legal philosophy of Gustav Radbruck,[50] a person who lived during the Nazi era and was a minister of Justice in the German Federal Government in 1922 and 1926, and retired as a Law Professor in 1933 that we turn to examine the complexity of ‘law and moral’ before, during and after the Nazi era in Germany and consider what lessons, if any, Uganda and other countries with similar historical experiences may learn from.

In his early writings Radbruch’s complex legal philosophy may be summarized, in his own words as: “law is the reality whose sense is to serve the value of law, the idea of law”[51] Idea of law, Radbruch continues, is not exhausted by justice. On the contrary, it includes its ‘second element’, namely, expediency or suitability for a purpose and a ‘third element’, which is legal certainty.[52]  “If in a community there is a supreme ruler, what he commands is to be obeyed” [53] This implies for the judge, being completely subjected to the positive law, Radbruch submits:  “It is the professional duty of the judge to give effect to the will of the statute, to sacrifice his own sense of justice to the authoritarian command of the law, to ask only what is legal and never whether it is also just.” [54]  Radbruch justified this view based on the principle of ‘legal certainty’. He explained the principle as follows:

“However unjust the law may be in its content, by its very existence

…it always fulfils one purpose, namely, that of legal certainty.”[55] This

suffices to render a merely ‘legal judge’ as, in the end, a ‘just judge’.[56]

Radbruch’s legal philosophy was applied by the German courts after the defeat of Nazi regime in 1945 and the collapse of the German Democratic Republic (East Germany) in 1989.[57] After the collapse of the Nazi regime, Gustav Radbruch, however, re-assed his earlier legal philosophy and made a U-turn. He redefined his new position on legal certainty by introducing the following principle:  “When statutory rules reach a level of extreme injustice, so that the contradiction between positive law and justice becomes intolerable, they cease to be law.”[58][Emphasis mine]

In acknowledging, though belatedly, that extremely unjust legal orders like the Nazi system could have no legal value, Radbruch contested a purely formalistic (“value free”) view on legal validity as expressed by the founders of positivist legal philosophy—notably Hans Kelsen, a leading figure in twentieth-century legal thought, whose Pure Theory of Law insisted on the autonomy of the legal order from all ethical and political questions.[59]

In this perspective, Radbruch’s post-war work can be regarded as an implicit critique of Kelsen’s vision of “positivist purity.” By integrating criteria of basic justice into the concept of law, Radbruch rejected Kelsen’s idea that anything that can be manifested in legal form (even the decrees of the Nazis) is valid law, irrespective of its content.

In 1946, Radbruch wrote: “Positivism, with its credo ‘a law is a law,’ has in fact rendered the German legal profession defenceless against laws of arbitrary and criminal content”[60] It seems clear that this unequivocal statement was directed, in particular, at Kelsen’s legal philosophy, one of the most influential theories in legal philosophy.[61]

On his part, Kelsen disagreed with Radbruck’s new legal theory. However, Radbruck received support of his theory from many legal scholars including Lon Fuller, who argued that without an inquiry into the actual workings of whatever remained of a legal system under the Nazi regime, Hart assumes that something must have persisted that still deserved the name of law in a sense that would make meaningful the idea of infidelity to law. Not that Hart believes that the Nazi law should have been obeyed, Fuller argued. Rather, according to Fuller, he considers that a decision to disobey the Nazi law presented not a mere question of prudence or courage but a genuine moral dilemma in which the ideal of fidelity to law had to be sacrificed in favour of fundamental goals. Fuller concludes his critique of Hart by stating: “I should have thought it unwise to pass such a judgment without first inquiring with more particularity what ‘law’ itself meant under the Nazi Regime”.[62]

Fuller implicitly suggests that ‘law’ under the Nazi Regime was not law and therefore Hart should not have treated it as such, without first examining whether Nazi ‘law’ was actually law.

In Uganda, we have well trained and highly respected legal philosophers but no Radbruck, Kelsen, Hart or Fuller. Not because Uganda lawyers, or lawyers in Uganda, do not appreciate legal philosophy. No. they do. But the problem appears to be extensive self-imposed censorship, complicity with the regime in power, or simply blind fear. So when Gen Idi Amin carried out a successful military coup on January 25, 1971 and was later ousted, by military force, on April 11 1979, no serious legal debates on Amin’s “wicked laws” – laws based on raw and uncouth power- laws that constituted criminality and extreme abuses of power, were conducted.

It is a historical fact that during Amin’s regime, many people including civilians were murdered; their properties were unlawfully confiscated; those who were citizens (of Asian origin) had their citizenship revoked, their properties looted, and were deported while others were murdered. The looted properties were legally reclassified as “abandoned properties”.  A body, the so-called “Departed Asians Custodian Properties Board” (DAPCB) was created to manage this loot. A series of decrees which imposed severe discriminations against individuals classified by their ethnicity, religion or political affiliation were adopted legally and, sometimes, informally by Gen Amin’s public or roadside announcements. Many Ugandans who were real or perceived ‘enemies of the state’, including some foreigners, ‘disappeared’ or remained unaccounted.

After the removal of Gen Idi Amin from office, the post Amin government continued governing the country on a “business as usual” basis.  Amin’s draconian laws were neither voided nor declared invalid. Many of the institutions used to brutalise civilians by use of torture and other inhumane acts were not criminalized or disbanded, but left on the statute books. Individuals who manned these institutions were neither interviewed nor were the documents proving that atrocious acts were committed, archived. This history of atrocious crimes was allowed to simply slip away and become a faint and distant memory as perpetrators continued to live freely within the community. There were no Truth and Reconciliations Commission, no investigations or prosecutions and no compensation to victims and survivors.

However, the post-Amin judges were faced with truly frightful predicaments. It was within the authority of the court to ‘legally’ declare the whole Idi Amin’s dictatorship and all the laws enacted thereunder, illegal or to examine such laws, on a case-by-case basis, and those found to be ‘wicked’ laws, declared null and void or voidable; and every decision, decrees issued by the regime, or any legal enactment that had emanated from Amin’s dictatorship, after a transparent legal assessment, declared manifestly unlawful, null and void.

On the other hand,  the judges were perhaps mindful that if the entire  “laws, decrees and statutes” adopted under Amin’s dictatorship were declared void, intolerable dislocation of the state and all its institutions would have resulted from any such wholesale outlawing of all that which  occurred over a span of eight years of the military dictatorship. Land  and other transactions, including  public and private contracts, marriages, divorces, adoptions,  and other ‘legally’ concluded agreements that had been carried under the laws of the obnoxious regime would have become illegal with grave consequences to the individuals in particular and society at large.

Not only theoretically but also factually, it was equally unreasonable to carry forward into the new post-Amin government while ignoring the effects of every Amin’s perversity that had been committed in the name of law. Any such a course would have tainted an indefinite future with the poison of Aminism. Unfortunately, that is exactly what the post-Amin government did; the new government embraced most of the laws and decrees enacted by the Amin dictatorship with very few minor or superficial amendments.

Forty years after the defeat of Idi Amin, the current regime behaves and conducts its affairs very much like the Amin’s regime.  Some former aging Amin’s ministers are serving in the same or senior capacity in the current government. No lessons appear to have been learnt and apparently without any idea of what ‘law’ is, or more appropriately, what the applicable law is. The post-Amin government self-styled ‘Uganda National Liberation Front’ (UNLF), did the unthinkable. First, the new government had, within its rank, many former senior Amin’s officials. These men included Paulo Muwanga, Chairman of the Military Commission (formerly Ambassador to France under Idi Amin and later Vice-President and Minister of Defence under President Milton Obote); Edward Rugumayo, Chairman of the National Consultative Council (formerly Minister of Education under Idi Amin, and Minister for, among others, Industry under Gen Museveni); Col. Gad Wilson Toko (formerly Air force commander – later minister of state for water and mineral resources under UNLF, and Vice-President under Gen Tito Okello) and Col. Zed Maruru (succeeded Col Toko as air force commander under Idi Amin, a member of the Military Commission under UNLF, and Chief of Staff of Uganda Armed Forces under Gen Tito Okello); Brig Moses Ali, former Amin’s Finance Minister was promoted by Gen Museveni to the rank of a general in the NRA and appointed Deputy Prime Minister). These men (no women), with their track records of serving in key positions during obnoxious regimes were never investigated or prosecuted but were rewarded for their alleged criminal acts.

Second, the new government retained most of the judges who served under Idi Amin without reviewing their records of past performance or complicity with the military dictatorship. Judge Ben J Odoki, a former Amin judge, in a post-Amin government became Chief Justice. Third, top civil servants who had served under Idi Amin continued to serve in the same or similar positions in the new government without having been vetted first to determine their possible complicity with serious crimes committed during the military dictatorship.  Fourth, most members of Parliament (then known as National Consultative Council NCC) had  many individuals who had loyally served the military dictatorship at very senior levels as for examples, cabinet ministers, ambassadors and senior civil servants. The end result is that the change from Amin’s regime to the UNLF was artificial and of no serious positive consequences because in practice, Idi Amin’s government (Aminism) continued to function normally but without Idi Amin the person, and few of his former top officials.

Significantly, the post-Amin government failed to freeze assets, looted or unlawfully acquired properties or accounts of past perpetrators and return them to the lawful owners. The decisions taken by the post-Amin governments were most intolerable, especially for the surviving relatives and friends of the victims that these people should go unpunished, while the objects of their spite were dead or simply remained unaccounted for. The survivors of the Amin regime were, to that extent, denied justice. Thus, the UNLF leadership failed to address the legal system that applied under the military dictatorship. The failure to deliver justice to survivors falls squarely on the post-Amin governments, including the UPC government (1980-1985) and senior people who served in all the post-Amin’s governments. Some of the judges who served in the Judiciary since 1971 equally bear responsibility for their individual complicity with the military dictatorship in the denial of justice to millions of Ugandans. However, even in a functional democratic set-up, with good laws and honourable judges, justice can still be denied to those who deserve it.  However, the extremity under a military dictatorship such as that of Gen Idi Amin, and Gen Yoweri Museveni, are matters of particular concern and must be judicially addressed in order to put the record straight.


In conclusion, it is submitted that the law’s content is always a moral judgement informed and inspired by our tradition combining respect for its past with appraisal of its strengths and weakness. Uganda, since the ouster of Idi Amin, has failed on two counts: to respect and abide by its legal and moral obligations for the public good.

The post-Amin Uganda failed to draw a distinction between genuine law and arbitrary power.  Legal obligations are moral obligations and legal reasoning is moral reasoning, but in each case context is critical because the requirements of justice are discerned, in large part, by exploration of the legal tradition in which particular issues arise for decision. More specifically, it is an internal interpretative inquiry drawing on the moral resources of that tradition. Conflict between political ideals must be resolved internally as part of that inquiry; we are obligated to obey the law as correctly determined. If laws, even bad ‘wicked’ laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can approve in principle even at the moment when it seems to us to miss the mark as argued by Fuller.

Secondly, the idea of justice according to law, as Uganda is a common law jurisdiction, is exemplified by common law thought, in which principle and precedent are interlocked and interdependent. The law is constituted neither by its socially authoritative sources regarded as social fact, nor by moral judgement about their effects. As persuasively argued by Allan, it is a moral construction of legal practice, interpreting its various rules and arrangements as part of an integrated scheme of justice. It is my considered opinion that any good and decent lawyer or advocate who has practiced law before an independent Judiciary, whether national or international courts or tribunals, will appreciate the importance and relevance of moral construction of legal practice and interpretation of statutes, rules and regulations as part of an integrated scheme in the criminal justice system, whether in common law or civil law system. The post Amin government did not only fail us – the people of Uganda -, it took away our legal as well as moral traditions to good governance and the dedication to perform public good. Uganda became amoral society. Uganda Parliament continues to pass ‘wicked laws’ that do not serve the public good, but the dictatorship uses the same bad laws to single out, target and punish its political opponents, for example, the case in point is that of the writer and academic Dr Stella Nyanzi. [63]

Thirdly, Uganda failed, or chose not, to learn from experiences of Germany. No serious legal debates were conducted in Uganda as to what legal steps were relevant for the purposes of investigation and prosecution of perpetrators who served under the ousted and current regimes. On the other hand, while critics point out that Germany did not do enough to prosecute all major perpetrators, what is true is that the country did investigate and prosecute a number of perpetrators. In any event, the Allied countries had carried out prosecutions at Nuremberg and in other courts under Control Council No.10 as well as Japanese war criminals in Tokyo.[64]  However inadequate the prosecutions might have been, and how the justice delivered might have been flawed or severely limited, the important point is that it set a precedent on how to deal with past crimes committed at the instigation or order of the state or its top officials. The WWII experiment, in the prosecution of those most responsible for committing serious crimes, as well as the vigorous legal debates on law and morality that occurred in Germany, was ignored by the new government and legal scholars  in Uganda.

It is time for the legal profession in Uganda to revisit the concept of law – law and morality – as the current regime in Kampala continues to enact and implement ‘wicked’ laws, based on the exercise of raw power by the dictatorship against the interests of the majority of Ugandans.



Allan, T.R.S (2001) Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press)

_________ (2013) The Sovereignty Law: Freedom, Constitution, and Common Law (Oxford: Oxford University Press)

Amartya, S (2009)   The Idea of Justice (ALLEN LANE an imprint of PENGUIN BOOKS)

Austin (1885) (5th Edition) Lectures in Jurisprudence: Lecture V

Conot, R.E (1983)   Justice At Nuremberg (Carroll & Graf Publishers Inc. New York)

Cotterrel R (1992) The Sociology of Law – An Introduction (Butterworths, London, Dublin, Edinburgh)

De Brouwer, A.M and Smeulers, A (ed) (2016) The Elgar Companion to The International Criminal Tribunal for Rwanda (Edward Elgar Publishing, Cheltenham, UK; Northampton, MA, USA)

Dworkin, R (2011) Justice for Hedgehogs (Cambridge: Mass, Belknop Press)

__________ (1986) Law’s Empire (London: Fontana Press)

_________ (1977) Taking Rights Seriously (London: Duckworth)

Gray, (1921) (2nd edn), The Nature and Sources of Law 96

Hayek, F.A (1982) Law, Legislation and Liberty (London: Routledge & Kegal Paul)

Hart, H.L.A (1961) The Concept of Law (Oxford, Clarendon Press)

Harris, J.W (1997 2nd edn) Legal Philosophies (Lexis Nexus-UK)

Finnis, J (1980) Natural Law and Natural Rights (Oxford: Clarendon Press)

Fuller, L.L (1969) The Morality of Law 2nd edn (New Haven: Yale University Press)

________ (1971) Anatomy of the Law (Penguin Books)

Kelsen H (1949, 3rd Edition) General Theory of Law and State 401

Kramer, M.H (1999) In the Realm of Legal and Moral Philosophy – Critical Encounter (Macmillan Press Ltd, London)

Knight, M, trans (1960/1967) Pure Theory of Law (Berkeley, University of California Press)

Köchler, H (2003) Global Justice or Global Revenge? – International Criminal Justice at the Crossroads (Springer Wien New York)

Paulson B.L and Paulsen S.L (1934/2002) Introduction to the Problems of Legal Theory (Oxford, Clarendon Press)

Raz, J (1994) Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press)

Sandel, M.J (1998 2nd ed) Liberalism and the Limits of Justice (Cambridge University Press)

Sands, P (ed) (2003) From Nuremberg to The Hague – The Future of International Criminal Justice (Cambridge University Press)

Simmonds, N (2007) Law as a Moral Idea (Oxford: Oxford University Press)

Taylor, T (1992) The Anatomy of the Nuremberg Trials (Back Bay Books, Little, Brown & Company)

Wedberg, trans (1945) The General Theory of Law and State (New York, Russel & Russel)


Allan, T.R.S    “Principle, Practice and Precedent: Vindicating Justice, According to Law” University of Cambridge Faculty of Law Research Paper No.48/2017

__________ “Law Justice and Integrity: The Paradox of Wicked Laws” (2009) 29 OJLS 705

Greenberg, M “The Moral Impact Theory of Law” 23 Yale LJ 1288 (2014)

Haskins, G.L         “A Problem in the Reception of the Common Law in the Colonial Period” University of Pennsylvania Law Review, pp842-853

Fleiner, T    “Common Law and Continental law: Two Legal Systems” Institute of Federalism, Fribourg (April 22, 2005)

Fuller, L. L  “Positivism and Fidelity to Law: A Reply to Professor Hart” Harvard Law Review vol.71, No.4 (Feb, 1958)

Hart, H.L.A “Positivism and the Separation of Law and Morals” 71 Harvard Law Review 593

Helmholz, R.H “Continental Law and Common Law: Historical Strangers or Companions” Duke Law Journal (1990, No.6), p.1207

Hershovitz, S “The End of Jurisprudence” 124 Yale LJ 1160 (2015)

Kelsen, H    “The Pure Theory of Law and Analytical Jurisprudence” 55 Harvard Law Review (1941)

Patterson, E.E    “Hans Kelsen and His Pure Theory of Law” 40 California Law Review

Perry S.R    “Two Models of Legal Principles (1977) Iowa L Rev 787

__________ “Judicial Obligations, Precedents and the Common Law” (1987) 7 OJLS 215

Starr, W.C.  “Law and Morality in H.L.A. Hart’s Legal Philosophy” 67 Marq. Law Review 673(1984)

Stone, J       “The Pure Theory of Law: A Reply” 17 Stanford Law Review 1128 (1965)

Thompson, G.V “The Development of the Anglo-American Judicial System” 17 Cornell Law Review 9 (1931).

*Obote Odora, LLM, LLD, Executive Director, Alternative Policy Forum.

[1] See Fleiner, T “Common Law and Continental Law: Two Legal Systems” Institute of Federalism, Fribourg, April 22, 2005.

[2] See Uganda Judicature Act, Chapter 3, and Article 47, of 1967 as amended by the 1996 Act.

[3] See  Haskins, G.L “A Problem in the Reception of the Common Law in the Colonial Period” University of Pennsylvania Law Review 842-853 (1948)

[4] See Thompson, G.V, “The Development of the Anglo-American Judicial System”, 17 Cornell L. Rev (1931).

[5] See Fleiner, T, “Common Law and Continental Law: Two Legal Systems”, note 1; see also Helmholz, R.H. “Continental Law and Common Law: Historical Strangers or Companions” Duke Law Journal 1990, No.6, p.1207.

[6] See  Austin, Lectures on Jurisprudence 167-341 (5th ed. 1885) Lecture V

[7] See  Gray, The Nature and Sources of the Law  96 (2nd ed. 1921)

[8] See Lon Luvois Fuller (June 15 1902-April 8, 1978) was an American and a noted legal philosopher who criticized legal positivism and defended a secular and procedural form of natural law. Fuller argues that all systems of law contain an “internal morality” that imposes on individuals a presumptive obligation of obedience.

[9] See Lon L Fuller, “Positivism and Fidelity to Law: A Reply to Professor Hart” Harvard Law Rev. Vol.71, No.4 (Feb, 1958), pp630-672.

[10] See Greenberg Mark, “The Moral Impact Theory of Law” 23 Yale LJ 1288 (2014); Compare with Hershovitz Scott, “The End of Jurisprudence” 124 Yale LJ 1160 (2015).

[11] Ibid.

[12] Herbert Lionel Adolphus Hart (July 18 1907 – December 19 1992) was a British legal philosopher and a major figure in political and legal philosophy. He is considered one of the world’s foremost legal philosophers in the twentieth century, alongside Hans Kelsen.

[13] See Hart, H.L.A “Positivism and the Separation of Law and Morals 71 Harvard Law Review 593, 615-21 (1958).

[14] Ibid, p.603.

[15] See Finnis John (1980), Natural Law and Natural Rights (Oxford, Clarendon Press), Ch.1, distinguishing between the ‘central case’ of law and its more marginal instances.

[16] See Allan T.R.S, “Principle, Practice and Precedent: Vindicating Justice, According to Law” University of Cambridge Faculty of Law Research Paper No.48/2017.

[17] See  Dworkin, R (2011) Justice for Hedgehogs (Cambridge: Mass; Belknop Press), Ch.8

[18] See Allan T.R.S, “Law, Justice and Integrity: The Paradox of Wicked Laws” (2009) 29 OJLS 705, p716-19.

[19] See Greenberg, M “The Moral Impact Theory of Law”, supra, note 10, at 1337.

[20] See Dworkin, R Taking Rights Seriously, pp118-23

[21] Hans Kelsen was born in Prague, Czechoslovak on October 11, 1881. He attended the University of Vienna and received his doctorate in law there at the age of 25. After a few years of additional study at the Universities of Heidelberg and Berlin he became in 1911 professor of Public Law and Jurisprudence at the University of Vienna. Here he remained for 19 years, the most creative period of his life. As a legal adviser to the Austrian government shortly after WW I he was asked to present several drafts of the constitution for the newly established Austrian Republic of 1920. Professor Kelsen was also a member of the Supreme Constitutional Court of Australia (1921-1930). His theories of constitutional law, of relations between law and state, which he developed, were based upon ample opportunity for observations of government operations. He was Dean of the Faculty of Law at Vienna in 1922-23. He went in 1930 to the University of Cologne where he became professor of international law and jurisprudence and Dean of the Faculty. With the advent of Adolph Hitler he moved to Geneva at the Faculty of Graduate Institute of International Studies. He went to Harvard in 1941 where he wrote the book General Theory of Law and State (Edberg’s trans.1945).

[22] Paulson, B.L and Paulson S.L (1934/2002) Introduction to the Problems of Legal Theory (Oxford, Clarendon Press), p.10

[23]Kelsen, H (1941) “The Pure Theory of Law and Analytical Jurisprudence” 55 Harvard Law Review (1941); see also Paulson, B.L and Paulson S.L (1934/2002) Introduction to the Problems of Legal Theory (Oxford, Clarendon Press), p.10

[24]  Ibid, at 44. See also Professor Stone and the Pure Theory of Law: A Reply (1965) 17 Stanford Law Review 1128

[25] Wedberg, trans (1945), General Theory of Law and State (New York, Russell& Russell) p.110-111.

[26] Patterson, E. E (1952), “Hans Kelsen and His Pure Theory of Law” 40 California Law Review 5), p.7; see also Knight, M, trans (1960/1967) Pure Theory of Law (Berkeley, University of California Press)

[27] Starr W.C, “Law and Morality in H.L.A Hart’s Legal Philosophy”, 67 Marq. L. Rev 673(1984)

[28] Hart, H.L.A (1961) The Concept of Law (Oxford, Clarendon Press), Chapter 3.

[29] Fuller, L.L, “Positivism and Fidelity to Law: A Reply to Professor Hart”, supra, note 9, at, pp630-672.

[30] Ibid, at, pp631.

[31] Ibid, at 631.

[32] Ibid.

[33] Ibid, at 631.

[34] Ibid, at 632.

[35] Ibid, at 632.

[36] Kelsen, H (1949) General Theory of Law and State 401 (3rd ed.1949)

[37] Fuller, L.L, “Positivism and Fidelity to Law: A Reply to Professor Hart”, supra, note 9, at 632.

[38] Ibid, at 660.

[39] See Hart, H.L.A “Positivism and the Separation of Law and Morals 71 Harvard Law Review 593, (1958), p.624.

[40] See Hart, H.L.A (1994), The Concept of Law 2nd edn. (Oxford: Clarendon Press)

[41] See Finnis, J, (1980), Natural Law and Natural Rights, supra, note 15. Chapter 1 draws a distinction between ‘central case’ of the law and its more marginal instances.

[42] Ibid.

[43] See Allan T.R.S, “Law, Justice and Integrity: The Paradox of Wicked Laws”, supra, note 18.

[44] Ibid.

[45] See Allan T.R.S, “Law, Justice and Integrity: The Paradox of Wicked Laws” (2009) 29 OJLS 705, pp716-19.

[46] See Simmonds, N (2007) Law as a Moral Idea (Oxford: Oxford University Press), 25-31

[47] See Allan, T.R.S (2013) The Sovereignty Law: Freedom, Constitution, and Common Law (Oxford: Oxford University Press),93-94

[48] See Kramer M.H (1999) In The Realm of Legal and Moral Philosophy – Critical Encounters (MacMillan Press Ltd, London); Sandel M.J (1998 2nd Edition), Liberalism and the Limits of Justice (Cambridge University Press); Harris, J.W (1997 2nd Edition) Legal Philosophies (Lexis Nexis-UK); Cotterrell R (1992) The Sociology of Law – An Introduction (Butterworths, London, Dublin, Edinburgh);  Amartya S (2009) The Idea of Justice (ALLEN LANE an imprint of PENGUIN BOOKS).

[49] On discourse on Justice or Revenge, see Köchler H (2003) Global Justice or Global Revenge? – International Criminal Justice at the Crossroads (Springer Wien New York)

[50] Gustav Radbruch, born 1878, in Luebeck (Germany). Professor pf Law at the Universities of Koenigsberg, Kiel and Heidelberg, retired in 1933. Minister of Justice in the German Federal Government in 1922 and 1926.

[51]  Radbruch, G (first publ 1932), Legal Philosophy, trans. Kurt Wilk, in The Legal Philosophies of Lask, Radbruch and Dabin (Cambridge, Mass. Harvard University Press, 1950), at 73.

[52]  Ibid, at 108.

[53]  Ibid, at 125.

[54]  Ibid, at 119.

[55]  Ibid.

[56]  Ibid.

[57]  Alexy Robert, “A Defence of Radbruch’s Formula” in: M.D.A Freeman (ed.) (2008) Introduction to Jurisprudence, 8th edn (London: Sweet & Maxwell and Thomson Reuters), p426-43, at 428-32.

[58]  Haldemann, F, “Gustav Radbruch vs. Hans Kelsen: A Debate on Nazi Law” Ratio Juris vol.18 No.2 (June 2005) 162-78.

[59]  Ibid.

[60]  Radbruck, G “Statutory Lawlessness and Supra-Statutory Law” (1946) trans. Bonnie Litschewski Paulson and Stanley L Paulson, in: Oxford Journal of Legal Studies 26(2006) 9.1-11.

[61]  For additional discourse on Radbruch’s Legal Philosophy, see, Heather Leawoods, “Gustav Radbruch: An Extraordinary Legal Philosophe 489(2000) 2 Was.U.L&POL’Y;; Radbruch G (1945) Five Minutes of Legal Philosophy trans, Bonnie Litschewski Paulson and Stanley L. Pauloson (Oxford University Legal Studies Vo. 26 No.1 (2006) pp13-15; Wolf E, “Revolution or Evolution in Gustav Radbruch’s Legal Philosophy” (1958) Natural Law Forum, Paper 25.

[62] Fuller, L.L, “Positivism and Fidelity to Law: A Reply to Professor Hart”, supra, note 9, at660.

[63] See Section 25 of the Computer Misuse Act, 2011 provides: “Any person who wilfully and repeatedly uses electronic communication to disturb or attempt to disturb the piece, quiet or right of privacy of any person with no purpose of legitimate communication whether or not a conversation ensues commits a misdemeanour and is liable on conviction to a fine not exceeding 24 currency points or imprisonment not exceeding one year or both.”  Dr Stella Nyanzi, a Ugandan academic and writer was criminalized by the Museveni dictatorship solely for her creative flair of using metaphors and what may be considered insulting language to criticize President Museveni. In one of her writings, she referred to President Museveni as “a pair of buttocks”. It need not be emphasized that public officials, including those exercising the highest political authority, are legitimately subject of criticism and political opposition.

[64] See, for example, Conot R.C (1983) Justice At Nuremberg (Carroll & Graft Publishers, Inc. New York); Taylor T (1992) The Anatomy of the Nuremberg Trials (Little, Brown and Company, Boston, New York, Toronto, London); Sands P (ed.)(2003) From Nuremberg to The Hague – The Future of International Criminal Justice (Cambridge University Press)

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