WHAT IS LAW?
IN view of the evidence of opinions examined in the preceding chapter it must be apparent to the reader that the question whether African customary law is law or not, can best be answered only when we know what law is. To help us to do this properly, we naturally want to be told what jurists mean by law. Now, probably the most difficult problem with which jurisprudence has to deal is that of evolving a valid description of law; it may with truth be said that its chief task begins and ends with trying to find out about the nature and purpose of law in human society. But there always has been much disagreement among jurists and sociologists about the nature of their subject.
There is perhaps no better starting-point than the work of John Austin, the reputed exponent of the analytical theory of law. According to him, law is 'a rule laid down for the guidance of an intelligent being by an intelligent being having power over him'.1 This view implies the existence of a political sovereign whom people in an organized political society are in the habit of obeying, on pain of punishment. If, for a moment, we accept this 'command' theory of law we shall find that African societies of the Group A type would satisfy Austin's requirement of political sovereignty as the basis of law 'properly so-called', but that African societies of the Group B type would not, since these would not be politically 'organised' in the Austinian sense -- that is, they would be 'men living in a state of nature'. Of course the great jurist denied the name of law 'properly so-called' to all the forms of customary law then known to him -- the conventions of the British Constitution, Public International Law and, by necessary implication, even the English Common Law as 'the common custom of the realm'. It is clear that African customary law would have been even more rigorously excluded.____________________