Introduction
Jurisprudence often presents a fundamental conflict between two major schools of thought: legal positivism, which holds that law is law simply because it has been enacted by a recognised authority, and natural law, which posits that for a law to be valid, it must align with a higher moral code derived from reason, religion, or nature itself. While Ghana’s legal system is structured in a largely positivist manner, this essay will discuss the significant implications of natural law theory within it. It will be argued that principles of natural law are not merely abstract philosophical ideas but are actively embedded in the Ghanaian legal framework, particularly through the 1992 Constitution, the approach of the judiciary to human rights, and the common law’s treatment of custom. This suggests that Ghana operates a hybrid system where the positivist structure is substantively guided and limited by natural law ideals.
The Core Tenets of Natural Law Theory
Natural law theory is one of the oldest concepts in legal philosophy, proposing that there is a universal set of principles of justice and morality that exist independently of human-made, or positive, law. Thinkers from Aristotle to St. Thomas Aquinas have argued that these principles are discoverable through human reason. Aquinas famously contended that human law draws its authority from natural law, and his maxim lex injusta non est lex (an unjust law is not law) encapsulates the core of this tradition (Aquinas, trans. 1947). In the 20th century, theorists like Lon Fuller revived natural law thinking by proposing an ‘inner morality of law’, arguing that for a legal system to be legitimate, it must adhere to certain procedural principles, such as clarity and consistency, which are themselves rooted in a moral order (Fuller, 1964). The central implication of this school of thought is that positive law can and should be measured against these higher moral standards, and where it falls short, it can be challenged or even invalidated.
The Constitutional Embodiment of Natural Law Principles
The most prominent implication of natural law in Ghana is found in its supreme law, the 1992 Constitution. Rather than presenting law as a morally neutral command of a sovereign, the Constitution is framed in aspirational and moral language. The Preamble dedicates the nation to the principles of "Freedom, Justice, Probity and Accountability" and resolves to secure for all citizens the "Blessings of Liberty, Equality of Opportunity and Prosperity." This language goes beyond simple legal rules and reflects a commitment to a set of pre-legal, moral values that the legal system is designed to serve.
This natural law foundation is made explicit in Chapter 5, which deals with Fundamental Human Rights and Freedoms. Article 12(1) of the Constitution states that these rights "are inherent in the Ghanaian as a human being and are not granted by the State". This is a classic natural law statement. It directly counters the positivist idea that rights are granted by and can be taken away by the sovereign. Instead, it asserts that these rights pre-exist the state and the Constitution merely recognises and protects them. The list of rights, including the right to life (Article 13), respect for human dignity (Article 15), and equality and freedom from discrimination (Article 17), are presented as universal moral entitlements, reflecting the natural law idea of inalienable rights.
The Judiciary as a Conduit for Natural Law
The Ghanaian judiciary has, especially since the promulgation of the 1992 Constitution, played a crucial role in giving practical effect to these embedded natural law principles. This marks a significant shift from the judicial posture in earlier periods. The case of Re Akoto & 7 Others [1961] GLR 523 is often cited as a high point of judicial positivism in Ghana. In that case, the Supreme Court refused to challenge the Preventive Detention Act, which allowed the President to detain citizens without trial, holding that the President’s belief that a person’s actions were prejudicial to state security was not justiciable. The court deferred entirely to the power of the executive, refusing to apply any higher standard of justice or individual rights.
By contrast, the judiciary under the Fourth Republic has adopted a more activist stance, using the Constitution’s human rights provisions to invalidate legislation. In New Patriotic Party v Attorney-General (CIBA case) [1993-94] 2 GLR 35, the Supreme Court held that several existing laws which gave a state-owned corporation a monopoly over broadcasting were inconsistent with the constitutional right to freedom of speech and were therefore void. Similarly, in New Patriotic Party v Inspector-General of Police [1993-94] 2 GLR 459, the court struck down sections of the Public Order Act that required citizens to obtain a police permit before holding a public protest, finding them to be an unjustifiable infringement on the freedom of assembly. In these cases, the judiciary was not simply applying black-letter law; it was measuring positive law (Acts of Parliament) against the higher principles of justice and human rights enshrined in the Constitution and invalidating them when they were found wanting. This is a practical application of lex injusta non est lex.
The Tension with Legal Positivism and the Role of Customary Law
Despite these clear natural law influences, it is important to acknowledge that the structure of Ghana’s legal system is fundamentally positivist. Article 11 of the 1992 Constitution establishes a clear hierarchy of laws, with the Constitution at the apex, followed by Acts of Parliament, subsidiary legislation, the existing law, and the common law. This provides a formal, source-based test for legal validity, which is a hallmark of legal positivism as articulated by theorists like H.L.A. Hart (Hart, 1961). Law in Ghana is valid because it emanates from a source recognised by this hierarchy.
However, even within this positivist structure, natural law ideas emerge. One significant area is in the application of Ghanaian customary law, which is recognised as a source of law under Article 11(3). The common law of Ghana includes rules of customary law that are "not repugnant to natural justice, equity and good conscience". This 'repugnancy clause' acts as a moral filter, empowering judges to invalidate customary rules and practices that, while authentically part of a community's tradition, violate fundamental principles of fairness and morality (Bimpong-Buta, 2005). For example, customs that are discriminatory against women or deny a person the right to be heard have been struck down by the courts. Here, "natural justice" serves as a form of natural law, a higher standard against which the validity of positive customary law is judged.
Conclusion
In conclusion, the implications of natural law in Ghana's legal system are both profound and pervasive, despite the system’s overtly positivist framework. Natural law is not the dominant declared philosophy, but its principles act as the substantive conscience of the law. This is most evident in the 1992 Constitution, which grounds fundamental rights in the inherent dignity of the human person, a concept central to natural law. It is also demonstrated in the post-1992 jurisprudence of the Supreme Court, which has consistently upheld these constitutional rights against contradictory legislation, effectively choosing a higher moral law over ordinary positive law. Finally, the repugnancy clause applied to customary law provides another mechanism for ensuring that law aligns with principles of natural justice. Therefore, the Ghanaian legal system can be understood not as purely positivist, but as a system where positivist rules are tempered and shaped by an enduring commitment to the natural law ideals of justice, fairness, and human dignity.
References
Aquinas, T. (1947) Summa Theologica. (Fathers of the English Dominican Province, Trans.). Benziger Bros.
Bimpong-Buta, S.Y. (2005) The Role of the Supreme Court in the Development of Constitutional Law in Ghana. Accra: Advanced Legal Publications.
Fuller, L.L. (1964) The Morality of Law. New Haven: Yale University Press.
Ghana. (1992) Constitution of the Republic of Ghana.
Hart, H.L.A. (1961) The Concept of Law. Oxford: Clarendon Press.
New Patriotic Party v Attorney-General (CIBA case) [1993-94] 2 GLR 35 (SC).
New Patriotic Party v Inspector-General of Police [1993-94] 2 GLR 459 (SC).
Re Akoto & 7 Others [1961] 1 GLR 523 (SC).
