Introduction
Jurisprudence, the theory and philosophy of law, seeks to understand the nature of law, its sources, and its relationship with other societal norms, particularly morality. One of the most influential schools of thought within jurisprudence is legal positivism. The central claim of legal positivism is that law is a social construction, and its validity is determined by its source and the process by which it is made, rather than its moral content. This is often summarised as the 'separation thesis', which posits a clear distinction between what the law 'is' and what the law 'ought to be'. This essay will review the core principles of legal positivism and examine its application within the legal system of Ghana. It will be argued that while the formal structure of Ghanaian law, as defined by its Constitution and sources of law, is strongly positivist, its application and interpretation, particularly in the post-1992 constitutional era, reveals a significant interplay with principles that challenge a purely positivist account.
The Core Tenets of Legal Positivism
Legal positivism emerged in contrast to natural law theories, which hold that there is a necessary connection between law and morality. Positivists argue that a law can be a valid law, even if it is unjust or immoral, provided it has been created by a recognised law-making authority. This focus on the source of law is a hallmark of the theory.
Early positivism is often associated with John Austin, who described law as a 'command of the sovereign backed by the threat of a sanction' (Austin, 1995). For Austin, law was essentially an order from a political superior to a political inferior. This model, while simple, was criticised for being unable to account for many types of laws, such as those that confer powers (e.g., the power to make a will) rather than impose duties.
A more sophisticated version of positivism was developed by H.L.A. Hart. In his seminal work, The Concept of Law, Hart argued that a legal system is a union of primary and secondary rules (Hart, 2012). Primary rules are those that impose duties or grant rights to individuals, such as the rules of criminal law. Secondary rules are rules about the primary rules; they specify how primary rules are created, changed, and adjudicated. The most important of these secondary rules is the 'rule of recognition', which is a social rule that identifies the criteria of legal validity within a particular legal system. In the UK, for example, the rule of recognition includes the principle of parliamentary sovereignty.
Another key positivist thinker is Hans Kelsen, who proposed a 'pure theory of law'. Kelsen viewed the legal system as a hierarchy of norms, where each norm derives its validity from a higher norm (Kelsen, 1967). This chain of validity ultimately rests on a foundational, presupposed norm, which he termed the 'Grundnorm' or 'basic norm'. The Grundnorm is not a positive law itself but is the pre-supposed foundation upon which the validity of the entire legal order rests, such as the principle that the first constitution ought to be obeyed.
The Positivist Framework of Ghanaian Law
The legal system of Ghana provides clear evidence of the influence of legal positivism, particularly in its formal structure. The 'rule of recognition' for the Ghanaian legal system is explicitly stated in Article 11(1) of the 1992 Constitution of Ghana, which lists the sources of law in the country. These are: (a) this Constitution; (b) enactments made by or under the authority of the Parliament established by this Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution; (d) the existing law; and (e) the common law.
This constitutional provision is a classic example of a positivist framework. It provides a clear, formal test for identifying what constitutes 'law' in Ghana. A rule's validity depends on its being traceable to one of these sources, not on its inherent fairness or justice. The Constitution itself sits at the apex, serving a role similar to Kelsen’s Grundnorm in providing the ultimate source of legal validity for all other laws within the system. Any law inconsistent with the Constitution is, to the extent of the inconsistency, void (Article 1(2), 1992 Constitution).
The application of a positivist judicial mindset can be seen in landmark Ghanaian cases, most notably the case of Re Akoto and 7 Others [1961] 2 GLR 523. In this case, the applicants were detained under the Preventive Detention Act 1958, which allowed the President to detain individuals without trial if he was 'satisfied' that it was necessary to do so. The Supreme Court was asked to scrutinise the grounds for the President's satisfaction. The Court adopted a strictly positivist and deferential approach, refusing to inquire into the basis of the President’s decision. It held that as long as the Act was passed by the legally constituted Parliament, the court's role was not to question its morality or the way the executive exercised its powers under it. The court explicitly rejected the argument that it should import principles of natural justice to impose limits on parliamentary power, thus separating the legal validity of the detention from moral or fairness considerations.
Tensions with Positivism in the Ghanaian Legal System
Despite the strong positivist foundations of the Ghanaian legal system, a purely positivist analysis is incomplete. The system is also infused with values and principles that reflect a natural law tradition, creating a tension.
The 1992 Constitution, while providing the positivist framework of Article 11, is itself a document rich in moral and political values. The Preamble speaks of securing for Ghanaians the "blessings of liberty, equality of opportunity and prosperity" and is dedicated to the principles of "Freedom, Justice, Probity and Accountability". Furthermore, Chapter 5 on 'Fundamental Human Rights and Freedoms' entrenches a set of rights that are declared to be inherent in every human being and are not merely gifts from the state. Article 33(5) specifically states that these rights "are not limited to the rights and freedoms" listed in the chapter, suggesting a body of rights that exists independently of their positive enactment.
This has led to a noticeable shift in judicial attitude compared to the era of Re Akoto. The modern Ghanaian judiciary, particularly the Supreme Court, has often adopted a more purposive and activist approach to constitutional interpretation, seeking to give effect to the spirit and underlying values of the constitution. A key example is New Patriotic Party v Attorney-General (the CIBA case) [1997-98] 1 GLR 378. Here, the Supreme Court struck down a directive from the Ghana Broadcasting Corporation that required it to grant equal airtime to all political parties, on the grounds that it was an unconstitutional infringement on media freedom. This demonstrated a judiciary willing to enforce the substantive values of the constitution against the legislative and executive branches, a departure from the strict deference seen in Re Akoto.
This blend of positivist structure and natural law substance creates a complex jurisprudential landscape. While the courts operate within the formal sources of law defined by Article 11, their interpretation of those sources, especially the Constitution, is often guided by broader principles of justice and human rights. This suggests that while Ghanaian law is positivist in form, its application is often tempered by non-positivist considerations.
Conclusion
In conclusion, legal positivism provides an essential and powerful lens through which to understand the Ghanaian legal system. The theory's emphasis on law as a system of rules derived from a recognised source of authority finds clear expression in Article 11 of the 1992 Constitution, which codifies Ghana’s 'rule of recognition'. Historic judicial decisions, such as Re Akoto, exemplify a positivist approach where the formal validity of a law is paramount.
However, a review of the system also reveals the limitations of a strictly positivist analysis. The 1992 Constitution is not merely a formal document; it is imbued with substantive moral and political values concerning human rights and justice. The contemporary Ghanaian judiciary has shown a greater willingness to interpret the law in light of these values, moving away from the strict positivism of the past. Therefore, the application of legal positivism in Ghana is best understood as a foundational element that provides structure and coherence to the legal order, but one which co-exists in a dynamic and sometimes tense relationship with the enduring principles of justice and human rights that are also central to Ghana's constitutional identity.
References
Austin, J. (1995) The Province of Jurisprudence Determined. Cambridge University Press.
Constitution of the Republic of Ghana, 1992.
Hart, H.L.A. (2012) The Concept of Law. 3rd edn. Oxford University Press.
Kelsen, H. (1967) Pure Theory of Law. University of California Press.
J H Mensah v Attorney-General [1996-97] SCGLR 320.
New Patriotic Party v Attorney-General (CIBA case) [1997-98] 1 GLR 378.
Re Akoto and 7 Others [1961] 2 GLR 523 (SC).
Sallah v Attorney-General [1970] 2 G&G 493.
