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Jurisprudence

and Legal Theory


Chris C. Wigwe PhD (Leeds) BL

Readwide Publishers
12 Ablade Road, Kanda Estates,
P.O.Box OS600
Osu-Accra
Ghana

Jurisprudence and Legal Theory by Chris Chizindu Wigwe. LLM, PhD, BL


Published by Readwide Publishers 2011
All right reserved 2011
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ISBN 978 9988 7971 9 5


Readwide Publishers 2011

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Thane Belapur Road, Airoli Navi, Mumbai,
India.

Veronica, Lisa, Sophie, Stephanie,


Sabrina, Sharon, Chris (Jnr.) and Marcus.

iii

Acknowledgements
With gratitude to God Almighty, I acknowledge and appreciate with great thanks,
the influence of the following highly learned distinguished academic authors,
jurists and judges: M.T. Ladan, J. E. Penner, McCoubrey and White, Alastair
Hudson, Justice Niki-Tobi, B. B. Kenyip, J.M. Elegido, Justice A. Katsina-Alu
and a host of others too numerous to mention in this book. I also acknowledge
with many thanks the immense contributions of my former law students, George
Igonibo F., Amakoromo Mark, Deekor Baridilo, Ohochukwu Chigoziri, Aladetuyi
Ademola, Uti Emetekoba, Alabaraba Tity and Soberekon Sokeipirim who were
employed as Research Assistants by my law firm (Chrismarcus Chambers) for
the purpose of putting this book together. Finally, I acknowledge the sacrifice
and contributions of my wife Veronica, who at the time of writing this book was
rounding up her Doctorate Degree program in Petroleum law at the University of
Dundee in Scotland United Kingdom but still found time to support this project.

Chris C. Wigwe. LLB, LLM, PhD (Leeds), BL

iv

Table of Contents
Acknowledgements iv
Table of Cases
xiii
Table of Statutes
xviii
Chapter One

Introduction to Jurisprudence
Nature of Jurisprudence

1
3

1.1.2 John Austin

1.1.3 Hart, H.L.A.

13

1.1.4 O.W. Holmes Jurisprudence

19

1.1.5 Rudolf Von Ihering (1818-1892)

27

1.1.6 Eugene Ehrlich (1862 1922)

27

1.1.7 Cicero

28

1.1.8 Karl Marx

31

1.1.9 Aristotle

41

1.1.10 Thomas Aquinas

53

1.1.11 Thomas Hobbes

54

1.1.12 John Finnis and his Natural law Theory

54

1.1.13 Joseph Raz

58

Introduction 3
1.1 The Contributions and Development of
Jurisprudence by Some Philosophers
4
1.1.1 Jeremy Bentham
4

1.2 Normative Character of Jurisprudence


1.3 Scope of Jurisprudential Study
1.4 Characteristics of Jurisprudence
Chapter Two

Nature of Law

2.1 Meaning and Functions of Law


2.2 The Relationship between Law and Morality
The meaning of law and morality
2.2.1 Theories that talk about the relationship
between law and morality
v

64
65
67

71

71
76
76
77

Jurisprudence and Legal Theory

2.3
2.4
2.5
2.6

3.0.2 Professor Harts & Lord Delving

79

2.2.3 Where Problems have arisen in the


Relationship between Law and Morality

80

Where Morality Connects with Law


81
Difference and Similarities between Law and Morality
83
The Relationship between Law and Morality in Nigeria
85
Relationship between Law and Justice
89
Introduction 89
2.6.1 Meaning of Law and Justice

89

2.6.2 How Justice Impinges Upon Law

92

2.6.3 Basis of Allegation of Bias

99

2.6.4 Test for determining whether there was Bias in a case

101

2.6.5 Effect of Bias in Relation to Fair Hearing

102

2.6.6 Administrative bodies and their duty to


apply Natural justice

102

2.6.7 The Right of a Party to be Heard before


Final Determination of a case in court

104

2.6.8 Duty of An Employer of Labour to Act


in Accordance with the Principles of Natural Justice

106

2.7 Relationship between Law and Religion


108
Introduction 108
2.7.1 What is law and what is Religion

109

2.7.2 The influence of Religion on Law

110

2.7.3 Religion and Freedom

110

2.7.4 How law will accommodate religious beliefs


when there is a looming conflict

114

2.7.5 Religion and the Realist School of thought

116

2.7.6 Religious Disunity and the Stabilizing Instrument of Law

118

2.7.7 Religion and Natural Law theory

120

2.8 Social Change

122

Chapter Three

General Sources of Law

129

Introduction 129
3.1 Formal Sources of Law
130
3.1.1 Statutes/Constitution
130
vi

Table of contents

3.2 Legislation
3.2.1 Primary Legislation

3.4

132
134

3.2.2 Subordinate/Subsidiary Legislation

135

3.2.3 Subsequent Legislation

136

3.3

137

Interpretation of Statutes

Equity as Source of Law


3.4.1 The Nature Of Equity

139
140

3.4.2 Equity and Trust are Based on Conscience

143

3.4.3 The Many Senses of Conscience

144

3.4.4 Concepts of Equity in Ancient Greek Philosophy

145

3.4.5 Kants Notion of Equity

146

3.5

148

Custom as a Source of Law

3.5.1 Establishing Customary Law

150

3.5.2 Proof of Custom before Customary and Area Courts

152

3.6 Judicial Precedent


3.6.1 The Doctrine of Judicial Precedent and
the Hierarchy of Courts
3.7

3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18

153
158

International Law as a Source of Law


3.7.1 Sources of International Law

160
161

3.7.2 International Convention or Treaties

162

3.7.3 Custom as a Source of International Law

164

3.7.4 Elements of Customary International Law

164

3.8

167

General Principles of Law

3.9 Judicial Decisions

169

Writings of Publicists
Ascertainment as a Source of Law
Codification of Laws
Restatement of Laws
Adaptation of Laws
Unification of Laws
Soft Law
Court Procedure Rules as Source of Law
The Relationship and Differences Between Law and
Other Related Concepts Order, Rules and Regulation
3.18.1 Regulation

170
170
171
173
175
179
182
184

vii

187
187

Jurisprudence and Legal Theory

3.18.2 Rules

188

3.18.3 Order of Court

189

Conclusion 190
Chapter Four

Theories of Law

191

4.1 Natural Law Theory


191
Introduction 191
4.1.1 What is Natural Law Theory?

191

4.1.2 What Natural Law Theories Concerns

195

4.1.3 Tangible Benefit of Natural Law Theory

195

4.1.4 Greek Classical Naturalism

199

4.1.5 Plato (Idealism and Legalism)

200

The obligation to obey law by Plato

201

4.1.6 Jus Gentium (International Law)

204

4.1.7 The Medieval Period

204

4.1.8 Thomas Aquinas

204

4.1.9 Renaissance and Reformation period

206

4.1.10 Social Contract and Natural Law (Thomas Hobbes)

208

4.1.11 John Locke (1632 1704)

209

4.1.12 Social Contract by J. J. Rousseau (1712 1778)

212

4.1.13 International Law (Grotius)

213

4.1.14 Teleological Analysis

214

4.1.15 19th and 20th Centuries Periods of Naturalism

215

4.1.16 Harts Natural Law theory

216

4.1.17 The Restatement of Natural Law Theory (Finnis)

218

4.1.18 The Morality of Law (Fuller)

222

4.2 Positivist Theory of Law


4.2.1 Jeremy Bentham And John Austins

224
225

4.3

4.2.2 Command theory of law

225

4.2.3 Criticism of J. Bentham and J. Austin Theory

228

Classical Marxist Theory


230
Introduction 230
4.3.1 Marxist Position on Law
viii

232

Table of contents

4.3.2 Karl Marx Analysis of the State

233

4.3.3 Relevance of Marxism to the World Order

233

4.3.4 Critical Assessment of Karl Marx

236

4.4 Realism
4.4.1 The Realist Theory

4.5

240
241

4.4.2 Arguments of Realist Authors-

242

4.4.3 Oliver Wendell Holmes

242

4.4.4 Karl Llewellyn

243

4.4.5 Jerome Frank

244

4.4.6 Critical Assessment of the Realist Theory

245

Historical School of Jurisprudence


4.5.1 Fredrick Karl Von Savigny (1779 186)

250
250

4.5.2 Critical Assessment of Savignys theory

252

4.6 Sociological School Of Jurisprudence


255
Introduction 255
4.6.1 Roscoe Pound (1870 1964)

256

4.6.2 Critical Analysis of Pounds theory

257

4.7 The Pure Law Theory


4.7.1 Hans Kelsen (1881 1973)

258
258

4.7.2 Norms

259

4.7.3 The Basic Norm

260

4.7.4 Kelsinian Sanctions

261

4.7.5 International Law

261

4.7.6 Critical Assessment of Hans Kelsens view

262

Chapter Five

Islamic Jurisprudence

267

Introduction 267
5.1 Historical Development Of Islamic Jurisprudence
269
5.2 Sources of Islamic Law
270
5.3 Schools of Thought
271
5.3.1 Hanafi School
271
5.3.2 Maliki School

272

5.3.3 Shafi I School

272

5.3.4 Hambali School

273
ix

Jurisprudence and Legal Theory

5.4

Contributions and Development of the Four


Rightly Guided Caliphs to Islamic Jurisprudence
1. ABU BAKR (632 634)

275
275

2.

UMAR (634 644)

276

3.

UTHMAN (644 656)

277

4.

ALI 278

5.5 Characteristics of Islamic Jurisprudence


279
5.6 Examination and the Analysis of the Sources
and Concepts in Islamic Law
279
Introduction 279
5.6.1 Divine Sources

280

5.6.2 The Quran as a Source of Law

280

5.6.3 Sunnah as a Source of Law

282

5.6.4 Human Sources

283

5.6.5 Ijma as a source of Law

283

5.6.6 Qiyas as a Source of Law

285

5.6.7 Ijtihad as a source of law

286

5.6.8 Customs

287

5.8 The Five Pillars of Islamic Jurisprudence


5.8.1 Faith in Allah

5.9
5.10
5.11
5.12

5.13
5.14
5.15
5.16
5.17

291
291

5.8.2 Prayer (Salah)

291

5.8.3 Zakat

292

5.8.4 Fasting (Sawm)

293

5.8.5 Hajj

293

Judicial Precedent in Islamic Law


The Idea of Law Underlying Islamic Jurisprudence
The Sovereigns Supreme Command of Law
Components and aim of Islamic law
I) The components

294
295
295
299
299

II)

300

Aim of Islamic Law

Stability and Change in Islamic Law


Individual and Collective Interests Synthesized By Islamic Law
Law and Morality in Islamic Law
The Concept Of Justice In Islamic Law
Rule of Preventive Measures in Islam
x

301
303
304
307
308

Table of contents

5.18 Institutionalization of Justice in Islamic Jurisprudence


5.18.1 Absolute Standards of Justice in Sharia

309
312

5.18.2 Legal Justice in Islam

313

5.18.3 Value of Legal Justice

314

5.18.4 Administration of Justice

316

5.18.5 Types of Legal Justice

317

5.18.6 Principles of Natural Justice

322

5.19
5.20
5.21
5.22

Enforcement and effects of Customary law in Nigeria


How the Repugnancy tests came about
The Effects of Colonialism on Customary Law
Effects of the Application of the Test of Enforceability
of Customary Law on the Application of Islamic Law in Nigeria
5.23 The Concept of Constitutionalism in Islamic Law
5.23.1 Constitutionalism in Islamic Law

327
327
328
330
333
334

5.23.2 The Sources of the unwritten Islamic Constitution

335

5.23.3 Basic Norms in Islamic Constitutional Theory

336

5.24 State and Sovereignty in Islam

337

5.25 Deviation from Islamic theory in Practice


5.26 Sample Islamic Constitutions
1. Pakistan

338
340
340

2. Iran

344

3. Saudi Arabia

348

4. Sudan

349

5. Egypt

351

6. Tunisia

354

7. Morocco

355

Chapter Six

Analysis of Fundamental Concepts and Doctrines

359

6.1 The Concept of Duties


359
Introduction 359
6.1.1 Meaning of Duties

359

6.1.2 Categories of Duties

360

6.1.3 Types of Duties

362

6.1.4 Rationale for the Creation of Duties

364

xi

Jurisprudence and Legal Theory

6.2

6.3

6.1.5 Some Theories of Duties

367

The Concept of Legal Personality


Historical Reflections

370
371

6.2.1 Legal Personality

371

6.2.2 Types of Legal Persons

372

The Concept of Rights


6.3.1 Theories Of Rights

381
382

Criticisms 384
Hohfelds Scheme of Rights

386

6.3.2 Other Related Concepts

390

6.3.3 Classification of Rights

392

6.3.4 Nature of Rights

400

6.4 Possession in Law


6.4.1 Types of Possession

401
404

6.4.2 Modes of Acquiring Possession

405

6.5.1 The Concept of Ownership

407

Bibliography 411
Index 415

xii

Table of Cases
A.N.P.P v B.S.I.E.C (2006) 11 NWLR (pt 992) 585 CA.
Ababio v Nsemfo (1947) 12 W.A.C.A 127 at p.128.
Abacha v Gani Fawehinmi (2000) 6 NWLR (pt 660) 228.
Abbeles v Gbadomosi (2003) 13 NWLR 512 CA.
Abraham v Olorunfunmi (1991) 1 NWLR (pt.165) 74-75.
Abubakar v Chuks (2007) 18 NWLR (Pt. 1066) 386 SC.
Achebe v Nwosu (2003) 7 NWLR (pt 818) 103 CA.
Adedibu v Adewoyin (1951) 13 WACA 191.
Adeleke v O.S.H.A (2006) 16 NWLR (pt 1006) 608 CA.
Adeloja v Oguntayo (2002) 6 NWLR (pt 710) 593 CA.
Adeseye v Taiwo (1956) 1 F.S.C. 84.
Adesubokan vs. Yinusa (1971) N.N.LR 77
Adetoun Oladeji (Nig) Ltd v Nigerian Breweries Plc (2007) 5 NWLR (pt 1027) 415 SC.
Adisa v Oyinwola (2000) 10 NWLR (pt 674) 116 CA.
Aero plot Soviet Airlines v U.B.A (1986) 3 NWLR (pt 27) 188 at 199.
A.G Abia State & Ors. V A.G Federation. (2003) 4 NWLR (Pt.809) 124 SC
Ageh v Tortya (2003) 6 NWLR (pt 816) 385 CA.
Akinsanya v U.B.A Ltd (1986) 4 NWLR pt (35) 273.
Akoh v Abuh (1988) 3 NWLR (pt.85) 696.
Akpan vs. State (1972) 2 U.I.L.R, 457.
Alajemba Uke vs. Iro (2001) 11 NWLR (pt.723) 196.
Alaye v State (2007) 16 NWLR (pt 1061) 483 CA.
Alemuloke v President Ibadan South East Grade (2006) 6 NWLR (pt 977) 612
Alfa & Ors. v Arepo (1963) N.N.L.R 95
Alhaji vs. MaJi (2002) 4 NWLR (pt.756) 46 C.A.
Alkamawa vs. Bello & Anor (1998)6 SCNJ 127.
Anglo-Norwegian Fisheries (1951) ICJ Rep. 116.
Anobtu v State (1976) 5 S.C 49.
Asogwa v Chukwu (2003) 4 NWLR (Pt. 811) 540 CA.
Assylum Case (Columbia v Peru) (1950) ICJ Rep. 266.
Bello vs. A.G. Oyo State (1986) 5 N.W.L.R (pt.45) 528.
xiii

Jurisprudence and Legal Theory

Bowel v Roy 476 US 693 (1986)


Bronik Motors Ltd v Wema Bank Ltd (1983) 1 SCNCR 296.
Bucknor-McClean v Inlaks Ltd (1980) 8 -11 SC 1
Buhari v Obasanjo (2005) 2 NWLR (pt 910) 241.
Burgess vs. Florence Hospital (1955) IQB 349
Cameroon v Nigeria (1998) p 275, para28.
Cantwell v Connecticut 310 US 296 at pp.303-304 (1940).
Charzon Factory (1928) PCIJ Series A no.17.
Cook vs. Sprigg (1899) A.C.572.
Dairo v U.B.N Plc (2007) 16 NWLR (pt 1059) 99 S.C
Dalharu v Turaki (2003) 15 NWLR (pt 843) 310 SC.
Danbaba v State (2000) 14 NWLR (pt 687) 396 CA.
Daniyan vs. Iyagin (2002) 7 NWLR (pt.766) 346 CA.
Debenham vs. Mellon (1880) 6 AC, 24.
Democratic Republic of Congo v Belgium (2002) ICJ Report 2002 p3 para57, 58.
Dokubo-Asari vs. Federal Republic of Nigeria (2007) 12 NWLR (pt.1048) 320
DPP v Smith (1961) AC 291.

E.B.N Ltd v Halico Nig Ltd (2006) 7 NWLR (pt 980) p.568 at 571-573.
Eastern Green Land (Denmark v Norway) (1933) PCIJ series A/B No. 53 at pg 69.
Edet v Essien (1932) 11 NLR 47.
Egharevba v Oruonghae (2001) 11 NWLR (pt 724) 318 CA.
Elliot vs. Joicey (1935) A.C. 209 @ 238.
Eshugbayi Eleko v Officer Administering the Government of Nig. (1931) AC 662
Exparte Sekgme Case (1910)2KB 576.
Fagoji v Kano Native Authority (1975) NRNCR 57.
Fasakin Foods (Nig) Ltd vs. Shosanya (2006) 10 NWLR (pt.987) p.126
Fawehinnmi v Legal Practitioners Disciplinary Committee (unreported).
Ferodo Ltd v Ibeto Industries Ltd (2004) 5 NWLR (pt 866) 317 SC.
Gana v Bornu Native Authority (1954) 14 NLR 587.
Gubba v Gwandu Native Authority (1947) 12. WACA 141.
Haliru Usman vs. Hajara Usman (2003)11 NWLR (pt.830) 109 CA.
Hyam v DPP (1974) 2 AER 41.
Idoniboye Obu V NNPC (2003) 2 NWLR (pt 805) 589 S.C.
xiv

Table of cases

Ifediorah & Ors. v Ume & Ors. (1988) 2 NWLR (pt.74) 5.


Inakoju v Adeleke (2007) 4 NWLR (Pt1025) 423 SC
International Agricultural Industries v Chika Bros (1990) 1 NWLR (pt.124) 70.
Jacobss v L.C.C (1950) A.C 301
Josiah v State (1985) 1 NWLR (Pt 1) 125
Karimatu v Yakubu Parko.
Kenon v Tekam (2001) 14 NWLR (pt.732) 12 SC.
Kimby and others v Military Governor of Gongola State and others (1988) 2 NWLR
(pt 77) 444.
Labinjo vs. Abake (1924) 5 NLR 33.
Lakanmi v Attorney-General (west) 1971 1 UILR 210.
Ladoke University of Technology v Z.O Ogunwobi (2006) 4 NWLR (pt 971) 569 CA.
Laoye v Oyetunde (1944) A.C. 170.
Lebile v Reg. Trustees C & S (2003) 2 NWLR (pt.804) 399 SC.
Lewis v Bankole (1908) 1 NLR 81.
Lipede v Sonekan (1995) 1 SCNJ 184.
Maida v Modu (2002) 8 NWLR (Pt. 768) 132
Maizobo and Ors v Sokoto Native Authority (1957) 2 FSC 13.
Malone vs. Metropolitan Police Force (1979) 2 WLR 700.
Meryer vs. Nebraska, 262 U.S. 390, 399, 43 S.Ct, 625,626 (1923).
Military Governor of Imo State vs. Chief B.A.S.Nwauwa (1997) 2 NWLR (pt.490) 675.
Minister of Internal Affairs v Okoro (2004) 1 NWLR (pt 853) 58 CA.
Mojekwu vs. Ejikeme (2000) 5 NWLR (pt.657) 402.
Mojekwu vs. Mojekwu (1997) 7 NWLR (pt.512) 283.
Mullick vs. Mullick (1925) L.R. 59 Ind. App.245
Nwankwoala v State (2006) 14 NWLR (pt.1000) 663 SC.
Nauru v Australia (1993) 32 ILM 46.
Ndukwe v LPDC (2007) 5 NWLR (pt.1026) 1 SC
Nicaragua v U.S.A (1986) ICJ Rep. 14;
Nigeria Bank for Commerce and Industry v Standard (Nig) Engineering Co. Ltd
(2002) 8 NWLR (pt.768) 104 CA
Nigerian Airport Authority v Okoro (1995) 1 SCNJ 292.
Nigerian Airways Ltd v Okutubo (2002) 15 NWLR (pt.790) 376 CA.
xv

Jurisprudence and Legal Theory

Nnamah v State (2005) 9 NWLR (pt.929) 147.


Nnamdi Azikiwe University v Nwafor (1999) 1 NWLR (pt.585) 115.
North Sea Continent Shelf Cases (1929) ICJ Rep. 44.
Nuclear Tests Case (Australia v France)(1974) ICJ report 268, para.46
Oba R.A.A Oyediran v Oba Alebiosu I I (1992) 7 SCNJ (pt 1) p.187 at 193-4
Odugbo v Abu (2001) 14 NWLR (pt 732) 45 SC
Odu v Fawehinmi (2005) 15 NWLR (pt 949) 578 C.A.
Ogun v Asemah (2002) 4 NWLR (Pt. 756) 208 CA.
Ojisua v Aiyebelehin (2001) 11 NWLR (pt 723) 44 CA.
Okafor v State (1976) 5 S.C 13.
Okoebor v Police Council (2003) 12 NWLR (pt.834) 444 SC.
Omega Bank Plc v Government of Ekiti State (2007) 16 NWLR (Pt.1061) 445 CA.
Onagoruwa vs. I.G.P (1991) 5 NWLR (pt.193) 593.
Owoniyi v Omotosho (1961) 1 ALL 403 at 409.
Onwo vs. Nwafor (1996) 6 NWLR (pt.456) 584.
Onwuka v State (1970) 1 ALL NLR 159.
Onyenkan v Adele (1957) 1 W.L.R 876.
Orji v Anyasa (2000) 2 NWLR (pt 643) 1 CA.
Oyedeji v Akinyele (2002) 3 NWLR (pt.755) 586 CA.
Paquette Habena (1900) 175 U.S 677.
Patrick Magit v University of Agriculture Makurdi (2006) ALL FWLR (pt 298) 1313 at
1345
Piracy Jure Gentuum (1934) ICJ pg.586
R vs. Labour (1923) WLR 1.
Rabiu vs. Amadu (2003)5 NWLR (pt.813) 343 CA.
Rabiyu v Abasi (1996) 7 SCNJ 53
Ransome-Kuti vs. A.G.Federation (1985) 2 NWLR (pt.6) 21.
Reynolds v United States, 98 US.145 (1879).
Rose v. Ford (1937) AC 826.
Rotimi Amaechi v INEC (2007) 18 NWLR (pt.1065) 170.
Rungumawa v Rungumawa (2002) 1 NWLR (pt.747) 153 CA.
Safeti v Safeti (2007) 2 NWLR (pt.1017) 56 C.A.
School District of Abington Township v Schemp 1963.
xvi

Table of cases

Scrutton Ltd v Midland Silicones Ltd (1962) A.C 446 at 477.


Seafood v Asher (1929) 2 KB 480
Shalla v State (2007) 18 NWLR (Pt 1066) 240 CA.
Sirros vs. Moore (1975) Q.B, p.118.
Sobhuza v Miller (1926) A.C. 518.
South East Africa v Liberia (1966) ICJ rep pg 6.
State v Falada and Ors (1972) 2 ALL NCR 219.
Suberu v Sunmonu (1957) 2 F.S.C. 33.
Temple of Preah Vihear (1962) ICJ Rep. Pg 6.
The Lotus Case (France v Turkey) (1927) PCIJ Series A. No 10.
Triafus and Co. Ltd v Post Office (1957) 2 Q.B 325 at 360.
Tsamiya v Bauchi Native Authority (1957) NRNLR 73.
U.S Diplomatic and Consular Staff in Tehran (US v Iran) (1980) ICJ rep.3.
Ugwu v Ararume (2007) 12 NWLR (pt 1048)) 367 SC.
United States v Lee, 455 US 252 (1982).
University of Lagos v Aigoro (1984) 11 SC pg 152 at 159..
Uttih v Oniyivwe (1991) 1 NWLR (pt 166) at Pg 205.
Uwaifo vs. A.G.Bendel State (1982) 7 SC 124
WAEC v Akinkunmi (2002) 7 NWLR (pt.760) 342

Wallace v Jeffrey, 472 U.S.38 (1985).


Wennhak vs. Morgan (1888) 20 QB, 635.
West and Gold Mining Company v The King (1950) 2 KB pg 391.
West Virginia State Board of Education v Barnette 319 US 624 (1943)
Wimbledon (1923) PCIJ Rep. Ser A No 1.
Wisconsin v Yoder, 406 U.S 205 (1975).
Yakaje v Haire (2003) 10 NWLR (Pt.828) 270 CA.
Yakasai v Nigerian Air Force (2002) 15 NWLR (Pt. 790) 294 CA.
Yakubu v State (2007) 9 NWLR (Pt 1038) 1 CA.
Yesuku v Asemota (1982) 3 NWLR (Pt ) 419
Young v Bristol Aroplane C. Ltd (1944) KB 718.
Ziza vs. Mamman (2002) 5 NWLR (pt.760) 243 CA.

xvii

Table of Statutes
1.

1999 Constitution of the Federal Republic of Nigeria Cap C23 LFN 2007

S.1

S.1 (3)

S.4
S.5

S.12 (1)

S.236
S.248

S.254

S.274
2.

Evidence Act, CAP E14, LFN, 2004

S.2

S.14 (1) (2) (3)

3.

Evidence Law (Lagos Laws) 1973 CAP 39

S.56 (1)

S.58

4.

Eastern Nigerian Laws 1963 CAP 49

S.1 (2) (C)

5.

Nigerian Laws 1948, CAP 63

S.1 (4) c)

6.

Sharia Court of Appeal Law (Northern Nigeria Law) CAP 122 1963

S.14
7.

Criminal Procedure (Northern State) Act, CAP C42, LFN, 2004

8.

Criminal Procedure Code CAP C38, LFN, 2004

S.364

S.26 (a)

9.

Criminal Procedure Act, CAP C41, LFN, 2004

S.10 (2)

10. Criminal Code (Federal and Lagos Laws) 1958 CAP 42


S.319 (2)

11.

Customary Courts Law 1956


xviii

Table of statutes

S.82
12. High court Civil Procedure Rules of Kano State

Order 5 Rule 12(1)

13. Laws of Eastern Nigeria 1963 CAP 32


14. Legal Practitioners Act, CAP L 11, LFN, 2004

S.12 (2)

15. Local Government Laws of Ogun State 1978 CAP 63


S.173
16. Roman Statute of International Criminal Court

Article 21 (1) (c)

17.

Statute of International Court Of Justice

Article 38(1)

Article 59

18. Universal Declaration on Human Rights 1948


19. Police Act, CAP P 19, LFN, 2004
S.24

S.24 (2)

20. Vienna Convention on the Law of Treaties 1969


Article 2

Article 31

Article 36

21. American Restatement Act 2002.


22. Criminal Code CAP C38, 2004
23.

Constitution of Nigeria, 1960

24. Constitution of the Federal Republic of Nigeria, 1963


25. Constitution of the Federal Republic of Nigeria, 1979
26. Constitution of the Federal Republic of Nigeria, 1999, CAP C23,
LFN, 2004.
27.

Indian Constitution 1931

28. Burmess Constitution 1957


29. Land Use Act 1978, CAP L5,
30. Electoral Act, CAP E6, LFN, 2004.
31. Petroleum Act, CAP P10, LFN, 2004.
xix

Jurisprudence and Legal Theory

32. Penal Code, CAP P3, LFN, 2004.


33. Criminal Justice Act, C39, LFN, 2004.
34. Lagos Law 1973 cap 52
35. High Court Law Lagos State 1973 ca 52
36. High Court law Northern Nigeria 1963, cap 40High Court Law
Eastern Nigeria 1963 cap 61
37. High Court Law WN 1939 cap 44
38. High Court 1964 No 9 of 1964 mid-western Nigeria
39. ASI0 Australia Anti Terrorism Act 2005 Criminal Code of Australia 1995
40.

International Convention on Civil and Political rights 1991

41. American Constitution 1791


42.

International Covenant on Civil Land Political rights (1966)

43. Fundamental declaration of human rights 1948


44. High Court Laws of Rivers State of Nigeria vol 3 cap 62; 1999.

xx

Chapter One

Introduction to Jurisprudence
Jurisprudence is the philosophical study of arts and science of law. It is the fulcrum
around which the idea, philosophy, theory and indeed, practice of law revolves. It
is a statement of indisputable fact, that Jurisprudence is the heartbeat of the law.
The law breathes and lives through the very theory and practice of jurisprudence.
It is an area of law that Lawyers, Jurists, Law Students and even Legislators alike
practice every day in their respective endeavours. Jurisprudence remains an area
of the law so common but so difficult to define like the characteristics of other
common life phenomena like air and water etc. What would be the reply if
one is asked the questions: What is air? What is Water? The difficulty in answering
these questions does appear to be similar to that encountered if one is asked what
jurisprudence is. The answer can only come after series of thoughts and even at
that, such answer may not be exhaustive or represent a comprehensive meaning
and definition of jurisprudence. The definition of jurisprudence by legal academic
authors does appear to have been influenced by the views expressed by the
various schools of thought in their attempt at defining law in the early century.
For example, a writer who shares the sentiments and views of law as expressed by
Naturalist, Positivist, Sociological or Historical schools of thought are likely to be
influenced by views expressed by any of these schools in defining jurisprudence.
Apart from the problem of definition, one other paradox of this all important area
of law is that, it is one of the subjects or area of law that students and lawyers are
most affrighted. However, this fear can vividly be described as simply a scarecrow
or the proverbial child running away from his mother trying to bath him because of
fear of cold water which is meant to clean and refresh his body and even soul. Just
like the proverbial fear of the child for cold water that will set him free, students of
jurisprudence are always affrighted by the acrobatics and legal gymnastics involved
in the study of jurisprudence. To most students therefore, jurisprudence has always
being a mystery, deep rooted in abstract conjecture, examination and analysis of
law. The universal fear of students for this subject influenced and motivated the
author in the most enthusiastic manner to undertake the publication of this book
with the deepest sense of modesty.
1

Jurisprudence and Legal Theory

It will suffice to say that in spite of this universal fear, the study of jurisprudence
is quite revelling and beneficial to students, lawyers and quasi legal trainees. It is
the only course that is designed to hone the skill of arguments of a lawyer and
legal academics. This mystery subject unveils the secrets and sharpens the legal
skills of any lawyer. It is the inner room in which a student should get baptized and
has his legal teeth properly cut in the workshop of legal arguments, submissions
and logic. It also enhances the students ability to achieve clarity of expression
and understanding of the law. The depth of knowledge, understanding, precision,
accuracy of thought, and the invaluable legal skill derivable from the painstaking
study of the subject of jurisprudence is second to none. It is for this reason that the
subject is seen as the study of arts, philosophy and science of law.
It can also be said that the study of jurisprudence sharpens the edges of critical
examination, empirical analysis and inquiry of law. In the light of this, it can
be suggested that students should begin to accept the hard gospel truth that
jurisprudence is like a good fruit that grows among thorns and it takes just a
measure of sacrifice to pluck it for ones eternal benefit as a lawyer. Inability to
pluck this important fruit leaves a palpable hollow in the students and lawyers
to be. It should be noted that the legal principle deduced from facts narrated by
clients of a lawyer depends largely on study and comprehension of jurisprudence,
as it widens the scope and idiosyncrasies of the lawyer to the applicable law.

Nature of Jurisprudence
Introduction
The term Jurisprudence is derived from two Latin words namely uris meaning of
law and prudence meaning skill of science. Put together, the term Jurisprudence
which becomes a derivative of the Latin word, urisprudentia means knowledge
of law. The inquiry and the foundation of law including the viviparous nature
of domestic and international legal order begin and end with the study of this
subject. It can be argued that it inquires, examines and analyze the concept of law
that an intelligent lay person of speculative curiosity a lawyer might consider as
not only philosophically abstract but very confusing in comprehension. What is
law? Where does law come from? Is law a Science? Is it in the field of humanity?
A practicing lawyer or a judge would think that questions of this sort are at best
irrelevant to what he does, at worst nave, impractical and even childlike. For
instance, how high is up.
Over the years, and through much juristic ink, the term jurisprudence has come to
mean the philosophy of law rather than the law itself. This means that Jurisprudence
is the study of the different schools that defined the law. When we look carefully
at these explanations it would seem that 90% of Jurisprudence restricts itself to
the study of the philosophies of law like the Naturalist, Historical, Sociological or
Realist schools.
Jurisprudence also refers to the study of the nature, scope, functions, relevance,
purpose, efficacy and reform of the law. It refers also to the study of legal concepts,
doctrines, norms, and various institutional legal systems. It also deals with the
study of subjects like morality, justice and Islam by relating law with them and
examining with critical analysis their nature of freestanding or inter-relationship.
It is more helpful to think of jurisprudence as a Jigsaw puzzle in which each piece
fits with the others to produce a whole picture. Take the meaning of law which
Jurisprudence is primarily about for instance, to Oliver Wendell Holmes law is what
the judges in Massachusetts say in the court room and nothing more pretentious
is what law is. But to John Austin, law is a command which is made by a superior
being for an inferior being which must be backed by sanction. It is argued in this
book that the so-called Realist and Positivist schools in legal theory arise precisely
from a failure to realize that the two schools of thought are addressing the same
issue. Both contribute to the understanding of the meaning of law but not in the
same context. So from this it could be seen that the main aim of jurisprudence is to
3

Jurisprudence and Legal Theory

see how the various views on law, whether it is a science, philosophy or arts relate
to one another and try to resolve the incompatibility if any, that may arise.

1.1 The Contributions and Development of


Jurisprudence by Some Philosophers
1.1.1 Jeremy Bentham
Jeremy Bentham, the chief proponent of the normative approach to jurisprudence,
favours a rational basis for the reform of the law. Therefore Bentham ventures
into what the law ought to be rather than what the law is. Bentham`s ambition in
life was to create a pannomion a complete Utilitarian code of law. So Bentham
did not only propose many legal reforms but also gave moral principle on which
they should be in the interest of the people i.e. the greatest good for the greater
number of the people.
In his writings he stated that the principle of morals and legislation can be seen
thus:
Nature has placed mankind under the governance of two sovereign
masters, pain and pleasure. It is for them alone to point out what we ought
to do, as well as to determine what we shall do. On the one hand, the
standard of right and wrong, on the other hand the chain of causes and
effects, are fastened to their throne. They govern us in all we do, in all we
say, in all we think
Bentham was highly influenced by Joseph Priestly. To Bentham, Priestly was the
first philosopher who wrote on the greatest happiness of the greatest number as
the foundation of moral and legislation. Joseph Priestlys book: The First Principle
of Government and Liberty written in 1798 seems to have greatly influenced Jeremy
Bentham. The book contains the good and happiness of the society which should
be in the interest of the majority of the citizens of the state. To him the great
standard by which everything relating to that state must finally be determined
is the happiness of the majority. Bentham`s jurisprudence seems to be in the
interest of the common good. His moral philosophy is to the effect that when
laws are made there should be a moral dimension to it. To Bentham only laws that
best serve the common interest or the people should be enacted. That is the basic
characteristic of his philosophy.
Benthams campaign for social and political reforms in all areas, most notably
the criminal law, had its theoretical basis in his utilitarianism, expounded in his
4

Nature of jurisprudence

Introduction to the Principles of Morals and Legislation, a work written in 1780


but not published until 1789. In it he formulated the principle of utility, which
approves of an action in so far as an action has an overall tendency to promote
the greatest amount of happiness. Happiness is identified with pleasure and the
absence of pain. To work out the overall tendency of an action, Bentham sketched
a specific happiness-making calculus, which takes into account the intensity,
duration, likelihood, extent, etc of pleasures and pains.
In Benthams theory, an action conforming to the principle of utility is right or at
least not wrong; it ought to be done, or at least it is not the case that it ought not
be done. But Bentham does not use the word duty here. For Bentham, rights
and duties are legal notions, linked with the notions of command and sanction.
What we call moral duties and rights would require a moral legislator (a divine
being presumably) but theological notions are outside the scope of his theory. To
talk of natural rights and duties suggests, as it were, a law without a legislator, and
is nonsensical in the same way as to talk of a son without a parent. Apart from
theoretical considerations, Bentham also condemned the belief in natural rights
on the grounds that it inspired violence and bloodshed, as seen in the excesses of
the French Revolution.
Bentham at first believed that enlightened and public-spirited statesmen would
overcome conservative stupidity and institute progressive reforms to promote
public happiness. When disillusionment set in, he developed greater sympathy
for democratic reform and an extension of the franchise. He believed that with
the gradual improvement in the level of education in society, people would be
more likely to decide and vote on the basis of rational calculation of what would
be for their own long-term benefit, and individual rational decision-making would
therefore, in aggregate, increasingly tend to promote the greater general happiness.
Bentham had first-hand knowledge of the legal profession and he criticized it
vehemently. He also wrote a highly entertaining Handbook of Political Fallacies
1824, which deals with the logic and rhetoric of political debate.
Bentham figured prominently among the small number of men who became
known as philosophical radicals, but his Utilitarianism was not much discussed
until the latter half of the nineteenth century. His prolific writings were published
in part by devoted disciples, but some were published for the first time in the 1940s
and after, and the publication of his complete works is still in progress. Among
these writings are Analysis of the Logic of Deontic Concepts and On Laws in General
containing a carefully elaborated theory of jurisprudence.

Jurisprudence and Legal Theory

1.1.2 John Austin


Austin was born to a Suffolk merchant family, and served briefly in the military
before beginning his legal training. He was called to the Bar in 1818, but he took
on few cases, and quit the practice of law in 1825. Austin shortly thereafter was
appointed to the first Chair of Jurisprudence at the recently established University
of London. Commentators have found evidence in Austins writings of the German
Pandectist treatment of Roman law, in particular, its approach to law as something
that is, or should be, systematic and coherent.
He did some occasional writing on political themes, but his plans for longer works
never came to anything during his lifetime, due apparently to some combination
of perfectionism, melancholy, and writers block. His changing views on moral,
political, and legal matters also apparently hindered both the publication of a
revised edition of Province of Jurisprudence Determined, and the completion of a
longer project started when his views had been different.
Much of whatever success Austin found during his life, and after, must be attributed
to his wife Sarah, for her tireless support, both moral and economic during the
later years of their marriage. They lived primarily off her efforts as a translator
and reviewer and her work to publicize his writings after his death, including the
publication of a more complete set of his Lectures on Jurisprudence.
Austins work was influential in the decades after his passing away. E. C. Clark
wrote in the late 19th century that Austins work is undoubtedly forming school of
English jurists, possibly of English legislators also. It is the staple of jurisprudence
in all our systems of legal education. A similar assessment is made by H.L.A.
Hart, looking back nearly a century later: within a few years of his death it was
clear that his work had established the study of jurisprudence in England. As
will be discussed, Austins influence can be seen at a number of levels, including
the general level of how legal theory, and law generally, were taught and the use
of an analytical approach in legal theory. At such levels, Austins impact is felt to
this day. Hart could write that Austins influence on the development of English
Jurisprudence has been greater than that of any other writer. It can be seen that
Austins particular command theory of law became almost friendless, but today
it is probably best known from Harts use of it as a foil for the elaboration of
Harts own, more nuanced approach to legal theory. In recent decades, some
theorists have revisited Austins command theory (and other works), offering new
characterizations and defences of his ideas.

Nature of jurisprudence

Austins Analytical Jurisprudence and Legal Positivism


Austin came under the influence of Jeremy Bentham, and Benthams utilitarianism
is evident though with some differences, in the work for which Austin is best
known today. On Austins reading of utilitarianism, Divine will is equated with
Utilitarian principles: The commands which God has revealed we must gather
from the terms wherein they are promulgated. The command which he has not
revealed, we must construe by the principle of utility. This particular reading of
utilitarianism, however, has had little long-term influence, though it seems to have
been the part of his work that received the most attention in his own day. Some
have also seen Austin as being one of the early advocates of rule utilitarianism,
where Austin urges that we analyze not the utility of particular acts, but that of
classes of action. Similarly, Austin shared many of the ideas of the Benthamite
philosophical radicals. He was a strong proponent of modern political economy,
a believer in Hartleian metaphysics, and a most enthusiastic Malthusian. Austin
was to lose most of his radical inclinations as he grew older. His importance to
legal theory lies elsewherehis theorizing about law was novel at four different
levels of generality.
Firstly, he was arguably the first writer to approach the theory of law analytically
as contrasted with approaches to law more grounded in history or sociology, or
arguments about law that were secondary to more general moral and political
theories. Analytical jurisprudence emphasizes the analysis of key concepts,
including law, legal right, legal duty, and legal validity. Though analytical
jurisprudence has been challenged by some in recent years, it remains the dominant
approach to discussing the nature of law. Analytical jurisprudence, an approach
to theorizing about law, has sometimes been confused with what the American
legal realists called legal formalisma narrow approach to how judges should
decide cases. The American legal realists saw Austin in particular and analytical
jurisprudence in general, as their opponent in their critical and reform-minded
efforts. Though, the realists were simply mistaken; unfortunately, it is a mistake
that can still be found in some contemporary legal commentaries.
Secondly, his work should be seen against a background where most English judges
and commentators saw common-law reasoning (the incremental creation or
modification of law through judicial resolution of particular disputes) as supreme.
In general, one might look at many of the theorists prior to Austin as exemplifying
an approach that was more community-orientedlaw as arising from societal
values or needs, or expressive of societal customs or morality. By contrast, Austins
view is one of the first, and one of the most distinctive theories, that views law as
7

Jurisprudence and Legal Theory

being emporium-oriented or viewing law as mostly the rules imposed from above
from certain authorized pedigreed sources. More top-down theories of law,
like that of Austin, better fit the more centralized governments and the modern
political theories about government of modern times
Third, within analytical jurisprudence, Austin was the first systematic exponent of
a view of law known as legal positivism. Most of the important theoretical work
on law prior to Austin had treated jurisprudence as though it were merely a branch
of moral theory or political theory: asking how the state should be governed?
When are governments legitimate? And under what circumstances did citizens
have an obligation to obey the law? Austin specifically, and legal positivism
generally, offered a quite different approach to law: as an object of scientific study
dominated neither by prescription nor by moral evaluation. Subtle jurisprudential
questions aside, Austins efforts to treat law systematically gained popularity in the
late 19th century among English lawyers who wanted to approach their profession,
and their professional training, in a more serious and rigorous manner.
Legal positivism asserts or assumes that it is possible and valuable to have a
morally neutral descriptive or conceptual theory of law. The main competitor to
legal positivism, in Austins days of popularity, has been natural law theory. Legal
positivism does not deny that moral and political criticism of legal systems is
important, but insists that a descriptive or conceptual approach to law is valuable,
both on its own terms and as a necessary prelude to criticism.
The term legal positivism is sometimes used more broadly to include the
position that we should construct or modify our concept of law to remove moral
criteria of legal validity; or to include a prescription that moral values should not
be used in judicial decision-making. We do not think anything turns on whether
the term is used more broadly or more narrowly, as long as it is clear which sense
is being used. Additionally, while Austin could be seen as supporting some of the
views associated with the broader understanding of legal positivism, he further
argues that there is need for more evidence and argument before the point should
be accepted.
There were theorists prior to Austin who arguably offered views similar to legal
positivism or who at least foreshadowed legal positivism in some way. Among
these would be Thomas Hobbes, with his amoral view of laws as the product of
Leviathan David Hume. With his argument for separating is and ought which
worked as a sharp criticism for some forms of natural law theory, which purported
to derive moral truths from statements about human nature and Jeremy Bentham,

Nature of jurisprudence

with his attacks on judicial lawmaking and others like Sir William Blackstone, who
justified such lawmaking with natural-law-like justifications .
However in spite of the views expressed by other philosophers, Austins famous
formulation of what could be called the dogma of legal positivism is as follows:
The existence of law is one thing; its merit or demerit is another. Whether
it be or be not is one enquiry; whether it be or be not conformable to an
assumed standard, is a different enquiry. A law, which actually exists, is a
law, though we happen to dislike it, or though it varies from the text, by
which we regulate our approbation and disapprobation.
While Austin saw himself as criticizing natural law theory, a view shared by most of
the legal positivists who followed him, the extent to which the two schools disagree,
and the location of their disagreement, remains a matter sharply contested by John
Finnis and Joseph Raz.
Fourth, Austins version of legal positivism, a command theory of law which will
be considered in some detail in this work, was also for a time, quite influential.
Austins theory had similarities with views developed by Jeremy Bentham,
whose theory could also be characterized as a command theory. Bentham, in a
posthumously published work, would define law as assemblage of signs declarative
of a volition conceived or adopted by the sovereign in a state, concerning the
conduct to be observed in a certain case by a certain person or class of persons,
who in the case in question are or are supposed to be subject to his power: such
volition trusting for its accomplishment to the expectation of certain events which
it is intended such declaration should upon occasion be a means of bringing to
pass, and the prospect of which it is intended should act as a motive upon those
whose conduct is in question.
However, Austins command theory was more influential than Benthams, because
the latters jurisprudential writings did not appear in an even-roughly systematic
form until well after Austins work had already been published, with Benthams
most systematic discussion only appeared posthumously, late in the 20th century.
Detailed Austins Views
Austins basic approach was to ascertain what can be said generally, but still with
interest, about all laws. Austins analysis can be seen as either a paradigm of, or a
caricature of, analytical philosophy because his discussions are full of distinctions
and narrow or thin in argument. The modern reader is forced to fill in much of
9

Jurisprudence and Legal Theory

the meta-theoretical, justificatory work, as it cannot be found in the text. Where


Austin does articulate his methodology and objective, it is a fairly traditional one:
he endeavored to resolve a law taken with the largest signification which can be
given to that term properly into the necessary and essential elements of which it
is composed.
As to what is the core nature of law, Austins answer is that laws properly so
called are commands of a sovereign. He clarifies the concept of positive law, that
is, man-made law by analyzing the constituent concepts of his definition, and by
distinguishing law from other concepts that are similar:

Commands involve an expressed wish that something be done,


combined with a willingness and ability to impose an evil if that wish is
not complied with.

Rules are general commands applying generally to a class, as contrasted


with specific or individual commands.

Positive law consists of those commands laid down by a sovereign or its


agents, to be contrasted to other law-givers, like Gods general commands,
and the general commands of an employer to an employee.

The sovereign is defined as a person or determinate body of persons


who receives habitual obedience from the bulk of the population, but
who does not habitually obey any other earthly person or institution.
Austin thought that all independent political societies, by their nature,
have a sovereign.

Positive law should also be contrasted with laws by a close analogy which
includes positive morality, laws of honor, international law, customary
law, and constitutional law including laws by remote analogy.

Austin also wanted to include within the province of jurisprudence certain


exceptions, items which did not fit his criteria but which should nonetheless be
studied with other laws properly so called: repealing laws, declarative laws, and
imperfect laws or laws prescribing action but without sanctions.
In the criteria set out above, Austin succeeded in delimiting law and legal rules
from religion, morality, convention, and custom. However, also excluded from
the province of jurisprudence were customary law (except to the extent that
the sovereign had, directly or indirectly, adopted such customs as law), public
international law, and parts of constitutional law. These exclusions alone would
make Austins theory problematic for most modern readers.
10

Nature of jurisprudence

Within Austins approach, whether something is or is not law depends on which


people have done what: the question turns on an empirical investigation, and it is
a matter mostly of power, not of morality. Of course, Austin is not arguing that law
should not be moral, nor is he implying that it rarely is. Austin is not playing the
nihilist or the skeptic. He is merely pointing out that there are more things that are
not within the precincts of morality, and what makes something law does nothing
to guarantee its moral value. The most pernicious laws, and therefore those which
are most opposed to the will of God, have been and are continually enforced as
laws by judicial tribunals.
In contrast to his mentor Bentham, Austin, in his early lectures, accepted judicial
lawmaking as highly beneficial and even absolutely necessary. Austin did not
find any difficulty in incorporating judicial lawmaking into his command theory:
he characterized that form of lawmaking, along with the occasional legal or judicial
recognition of customs by judges, as the tacit commands of the sovereign, the
sovereigns affirming the orders by its acquiescence. It should be noted, however,
that one of Austins later lectures listed the many problems that can come with
judicial legislation, and recommended codification of the law instead.
Criticisms of Austins Theory
Many readers came to appreciate Austins theory mostly through its criticism by
other writers prominently, that of H.L.A. Hart. The weaknesses of the theory are
almost better known than the theory itself.
Firstly, in many societies, it is hard to identify a sovereign in Austins sense of
the word, a difficulty which Austin himself experienced, when he was forced to
describe the British sovereign awkwardly as the combination of the King, the
House of Lords, and all the electors of the House of Commons. Additionally, a
focus on a sovereign makes it difficult to explain the continuity of legal systems:
a new ruler will not come in with the kind of habit of obedience that Austin sets
as a criterion for a systems rule-maker.
A few responses are available to those who would defend Austin. Although,
some commentators have argued that Austin is here misunderstood, in that he
always meant by the sovereign the office or institution which embodies supreme
authority; never the individuals who happen to hold that office or embody that
institution at any given time, there are certainly parts of Austins lectures that
support this impression.

11

Jurisprudence and Legal Theory

Secondly, one could argue that the sovereign is best understood as a constructive
metaphor: that law should be viewed as if it reflected the view of a single will. A
similar view, that law should be interpreted as if it derived from a single will, can be
found also in Ronald Dworkins work.
Thirdly, one could argue that Austins reference to a sovereign whom others are in
the habit of obeying but who is not in the habit of obeying anyone else, captures
what a realist or cynic would call a basic fact of political life. There is, as the
claim goes, entities or factions in society that are not effectively constrained,
or could act in an unconstrained way if they so chose. For one type of example,
one could point out that if there was a sufficiently large and persistent majority
among the United States electorate, nothing could contain them: they could
elect Presidents and legislators who would amend the Constitution and, through
those same officials, appoint judges who would interpret the Constitution in a
way amenable to their interests. A different sort of example would be a President
who ignored the constraints of statutory law, constitutional law, and international
treaty commitments, while the public and other officials lacked the will or the
means to hold that President to the legal norms that purported to constrain his or
her actions.
As regards Austins command model, it seems to fit some aspects of law poorly
e.g. rules which grant powers to officials and to private citizens of the latter, the
rules for making wills, trusts, and contracts are examples, while excluding other
matters e.g., international law which we are not inclined to exclude from the
category law.
More generally, it seems more distorting than enlightening to reduce all legal
rules to one type. For example, rules that empower people to make wills and
contracts perhaps can be re-characterized as part of a long chain of reasoning for
eventually imposing a sanction. Austin spoke in this context of the sanction of
nullity on those who fail to comply with the relevant provisions. However, such
a re-characterization misses the basic purpose of those sorts of laws, as they are
arguably about granting power and autonomy, not punishing wrongdoing.
A different criticism of Austins command theory is that a theory which portrays
law solely in terms of power fails to distinguish rules of terror from forms of
governance sufficiently on the basis that it is accepted as legitimate or at least as
reasons for action by their own citizens.
Finally, one might note that the constitutive rules that determine who the legal
officials are and what procedures must be followed in creating new legal rules,
12

Nature of jurisprudence

are not commands habitually obeyed, nor can they be expressed as habits of
obedience to persons.
Austin was aware of some of these lines of attack, and had responses ready; it
is another matter whether his responses were adequate. It should also be noted
that Austins work shows a silence on questions of methodology, though this may
be forgivable, given the early stage of jurisprudence. As discussed in an earlier
section, in many ways, Austin was blazing a new path. On matters of methodology,
later commentators on Austins work have had difficulty determining whether he
is best understood as making empirical claims about the law or conceptual claims;
however the elements of each sort of approach can be found in his writings.
When H.L.A. Hart revived legal positivism in the middle of the 20th century, he
did it by criticizing and building on Austins theory. For example, Harts theory
did not try to reduce all legal rules to one kind of rule, but emphasized the varying
types and functions of legal rules; and Harts theory, grounded partly on the
distinction between obligation and being obliged, was built around the fact
that some participants within legal systems accepted the legal rules as reasons for
action, above and beyond the fear of sanctions. Harts hermeneutic approach,
building on the internal point of view of participants who accepted the legal
system, contrasted sharply from Austins approach to law that is manmade and
very formalistic.
Austin follows the Analytical line of jurisprudence. This is concerned in more
general sense with abstract study of the law and the basic principle of law in legal
system. However the main objective of Analytical jurisprudence a cataloging of
the difference sense in which these terms are used and relate them one to another
in an effort to find a common denominator for the use of the term. Thus, terms like
legal person, property, intention. For example when we say legal person in law, it
could mean different things to different persons. A legal person under international
law will certainly differ significantly from a legal person under company law and
criminal law. This is definitely the province of jurisprudential inquiry.

1.1.3 Hart, H.L.A.


Herbert Lionel Adolphus Hart (1907-92) was a British philosopher who was
professor of jurisprudence at the University of Oxford. His most important
writings included Causation in the Law, The Concept of Law, Liberty and Morality of
Laws in General and Essays on Bentham.

13

Jurisprudence and Legal Theory

The Concept of Law is an analysis of the relation between law, coercion, and
morality, and it is an attempt to clarify the question of whether all laws may be
properly conceptualized as coercive orders or as moral commands. Hart says that
there is no logically necessary connection between law and coercion or between
law and morality. He explains that to classify all laws as coercive orders or as moral
commands is to oversimplify the relation between law, coercion, and morality. He
also explains that to conceptualize all laws as coercive orders or as moral codes is
to impose a misleading appearance of uniformity on different kinds of laws and
on different kinds of social functions which laws may perform. He argues that to
describe all laws as coercive orders is to mischaracterize the purpose and function
of some laws and is to misunderstand their content, mode of origin, and range
of application.
Laws are rules that may forbid individuals to perform various kinds of actions or
that may impose various obligations on individuals. Laws may require individuals
to undergo punishment for injuring other individuals. They may also specify
how contracts are to be arranged and how official documents are to be created.
They may also specify how legislatures are to be assembled and how courts are
to function. They may specify how new laws are to be enacted and how old laws
are to be changed. They may exert coercive power over individuals by imposing
penalties on those individuals who do not comply with various kinds of duties
or obligations. However, not all laws may be regarded as coercive orders, because
some laws may merely confer powers or privileges on individuals without imposing
duties or obligations on them.
Hart criticizes the concept of law that is formulated by John Austin in his book,
The Province of Jurisprudence Determined that proposes that all laws are commands
of a legally unlimited sovereign. Austin claims that all laws are coercive orders
that impose duties or obligations on individuals. Hart says, however, that laws
may differ from the commands of a sovereign, because they may apply to those
individuals who enact them and not merely to other individuals. Laws may also
differ from coercive orders in that they may not necessarily impose duties or
obligations but may instead confer powers or privileges.
Laws that impose duties or obligations on individuals are described by Hart as
primary rules of obligation. In order for a system of primary rules to function
effectively, secondary rules may also be necessary in order to provide an
authoritative statement of all the primary rules. Secondary rules may be necessary
in order to allow legislators to make changes in the primary rules if the primary
rules are found to be defective or inadequate. Secondary rules may also be
14

Nature of jurisprudence

necessary in order to enable courts to resolve disputes over the interpretation and
application of the primary rules. The secondary rules of a legal system may thus
include (1) rules of recognition, (2) rules of change, and (3) rules of adjudication.
In order for the primary rules of a legal system to function effectively, the rules
must be sufficiently clear and intelligible to be understood by those individuals
to whom they apply. If the primary rules are not sufficiently clear or intelligible,
then there may be uncertainty about the obligations which have been imposed on
individuals. Vagueness or ambiguity in the secondary rules of a legal system may
also cause uncertainty as to whether powers have been conferred on individuals
in accordance with statutory requirements or may cause uncertainty as to whether
legislators have the authority to change laws. Vagueness or ambiguity in the
secondary rules of a legal system may also cause uncertainty as to whether courts
have jurisdiction over disputes concerning the interpretation and application
of laws.
Primary rules of obligation are not in themselves sufficient to establish a system of
laws that can be formally recognized, changed, or adjudicated, says Hart. Primary
rules must be combined with secondary rules in order to advance from the prelegal to the legal stage of determination. A legal system may thus be established by
a union of primary and secondary rules. Although Hart does not claim that this
union is the only valid criterion of a legal system or that a legal system must be
described in these terms in order to be properly defined.
Hart distinguishes between the external and internal points of view with respect
to how the rules of a legal system may be described or evaluated. The external
point of view is that of an observer who does not necessarily have to accept the
rules of the legal system. The external observer may be able to evaluate the extent
to which the rules of the legal system produce a regular pattern of conduct on the
part of individuals to whom the rules apply. The internal point of view, on the
other hand, is that of individuals who are governed by the rules of the legal system
and who accept these rules as standards of conduct.
The external aspect of rules may be evident in the regular pattern of conduct
which may occur among a group of individuals. The internal aspect of rules
distinguishes rules from habits, in that habits may be viewed as regular patterns of
conduct but are not usually viewed as standards of conduct. The external aspect
of rules may in some cases enable us to predict the conduct of individuals, but we
may have to consider the internal aspect of rules in order to interpret or explain
the conduct of individuals.

15

Jurisprudence and Legal Theory

Hart argues that the foundations of a legal system do not consist, as Austin claims,
of habits of obedience to a legally unlimited sovereign, but instead consist of
adherence to, or acceptance of, an ultimate rule of recognition by which the validity
of any primary or secondary rule may be evaluated. If a primary or secondary rule
satisfies the criteria which are provided by the ultimate rule of recognition, then
that rule is legally valid.
There are two minimum requirements which must be satisfied in order for
a legal system to exist: (1) private citizens must generally obey the primary
rules of obligation, and (2) public officials must accept the secondary rules of
recognition, change, and adjudication as standards of official conduct. If both of
these requirements are not satisfied, then primary rules may only be sufficient to
establish a pre-legal form of government.
Moral and legal rules may overlap, because moral and legal obligation may be
similar in some situations. However, moral and legal obligation may also differ
in some situations. Moral and legal rules may apply to similar aspects of conduct,
such as the obligation to be honest and truthful or the obligation to respect the
rights of other individuals. However, moral rules cannot always be changed in the
same way that legal rules can be changed.
According to Hart, there is no necessary logical connection between the content
of law and morality, and that the existence of legal rights and duties may be devoid
of any moral justification. Thus, his interpretation of the relation between law
and morality differs from that of Ronald Dworkin, who in Laws Empire suggests
that every legal action has a moral dimension. Dworkin rejects the concept of
law as acceptance of conventional patterns of recognition, and describes law not
merely as a descriptive concept but as an interpretive concept which combines
jurisprudence and adjudication.
Hart defines legal positivism as the theory where there is no logically necessary
connection between law and morality. However, he describes his own viewpoint
as a soft positivism, because he admits that rules of recognition may consider the
compatibility or incompatibility of a rule with moral values as a criterion of the
rules legal validity.
Legal positivism may disagree with theories of natural law, which assert that civil
laws must be based on moral laws in order for society to be properly governed.
Theories of natural law may also assert that there are moral laws which are
universal and which are discoverable by reason. Thus, they may fail to recognize
the difference between descriptive and prescriptive laws. Laws that describe
16

Nature of jurisprudence

physical or social phenomena may differ in form and content from laws which
prescribe proper moral conduct.
Hart criticizes both formalism and rule-scepticism as methods of evaluating the
importance of rules as structural elements of a legal system. Formalism may rely
on a rigid adherence to general rules of conduct in order to decide which action
should be performed in a particular situation. On the other hand, rule-scepticism
may not rely on any general rule of conduct in order to decide which action should
be performed in a particular situation. Formalism may produce such inflexibility
in the rules of a legal system that the rules are not adaptable to particular cases.
Rule-scepticism may produce such uncertainty in the application of the rules of a
legal system that every case has to be adjudicated.
International law is described by Hart as problematic, because it may not have all
of the elements of a fully-developed legal system. International law may in some
cases lack secondary rules of recognition, change, and adjudication. International
legislatures may not always have the power to enforce sanctions against nations who
disobey international law. International courts may not always have jurisdiction
over legal disputes between nations. International law may be disregarded by some
nations who may not face any significant pressure to comply. Nations who comply
with international law must still be able to exercise their sovereignty.
In any legal system, there may be cases in which existing laws are vague
or indeterminate and that judicial discretion may be necessary in order to
clarify existing laws in these cases. Hart also argues that by clarifying vague or
indeterminate laws, judges may actually make new laws. He explains that this
argument is rejected by Ronald Dworkin, who contends that judicial discretion
is not an exercise in making new laws but is a means of determining which legal
principles are most consistent with existing laws and which legal principles provide
the best justification for existing laws.
Dworkin says in Laws Empire that legal theory may advance from the preinterpretive stage in which rules of conduct are identified to the interpretive
stage in which the justification for these rules is decided upon) to the post
interpretive stage in which the rules of conduct are re-evaluated based on what
has been found to justify them. A complete legal theory does not merely identify
the rules of a legal system, but also interprets and evaluates them. A complete
legal theory must consider not only the relation between law and coercion i.e.
the force of law, but the relation between law and rightfulness or justifiability
i.e. the grounds of law. Thus, Dworkin argues that a complete legal theory must
address not only the question of whether the rules of a legal system are justified
17

Jurisprudence and Legal Theory

but the question of whether there are sufficient grounds for coercing individuals
to comply with the rules of the system.
Furthermore, these rules can also be distinctively classified into two categories the
first is that; they regulate the conduct of members of the society. Secondly, they
derive from human social practices. He also talked about morality which is a part
of this rules. Harts finally talked about two primary and secondary rules which
according to him interrelate.
When talking about the primary and secondary rules he distinguished the two.
He said the primary rules are duty imposing rules such as rules of criminal law
and the law of tort, and secondary power conforming rules i.e. laws that help make
contract between parties, law of trust, will and marriage, the secondary rules also
lays down rules governing composition and power of courts legislations and other
government bodies. These two rules (primary and secondary) interrelate with
each other and only then can you get the best quality of law we desire.
Hart also believed that there are 3 kind of secondary rules. The first is rules of
Adjudication. Harts says that these are rules which give the judge power to
decide on any case between parties in court and also enforce these decisions by
commanding the payment of damages or arrest and imprisonment of somebody.
The second of these secondary rules according to Harts is rules of change. These
are rules which regulate changes in legislation or laws. There is however a private
or alternative dimension which says that a person has the right to change the
terms of a legal agreement between two parties. The third is what he called rule of
recognition. These rules determine the criteria which govern the validity of laws
in a country.
Harts also wrote about two conditions which must exist before a real legal system
could be said to exist. But Hart made it quite clear that a legal system can only exist
if such a system is enforced in that country. Now Hart mentioned two conditions.
They include:
1.

Those rules of behaviour which are valid according to the system


Ultimate criteria of validity must be generally obeyed and its rules of
recognition specifying criteria of legal validity and its rules of change and
adjudication must be effectively accepted as common public standards of
official behaviour by its officials.

2.

Also the second condition was said by Harts to be common standard


of official behaviour and appraise critically their own and each others
deviation and lapses.
18

Nature of jurisprudence

3.

These are the conditions which according to Hart must be followed for a
legal system to be in force.

Hart also mentioned other legal systems where there are no combinations of
primary and secondary rules. For example he mentioned customary community
law and international law. According to Harts there is no existence under these
secondary rules which gives procedures on how these primary rules will be
enforced. In terms of International law he said:
It lacks a central organ of Adjudication with compulsory powers; it does
not have (other than through multilateral treaties) a method for changing
the rules governing relationship between states; furthermore, there is no
rule of regulation.
He also made familiar comments about the customary legal system.

1.1.4 O.W. Holmes Jurisprudence


Oliver Holmes argues that judges have the responsibility of law making. He argues
that laws made by parliaments are mere abstract contexts until they are being
litigated in the court for the real law to be ascertained after the judgment by the
court. This is because the decisions of the courts are influenced by legal and non
legal issues. This is purely a realist approach to what law is. The Realist school
agrees with the Positivist school that law should be written down and made formal
for everyone to know in advance what the law is. However they argue that the law
is a mere abstract and grammatical semantics until an empirical examination and
analysis of the pragmatism of that law by court is made.
But if we take the views of our friend the bad man we shall find that he does not
care two straws for the axioms or deductions, but that he does want to know what the
Massachusetts or English courts are likely to do. In fact, such of his mind. The prophecies
of what the court will do in fact and nothing more pretentious; are what I mean by law.
When he was appointed to the Supreme Court in 1902, at the age of sixty-one, he
was best known to the general public as the son of a famous poet and man of letters;
when he retired, thirty years later, he had been called the greatest of our age in
the domain of jurisprudence, and one of the greatest of the ages. Oliver Wendell
Holmess thirty years in the Supreme Court unquestionably made his reputation,
and yet those years, given the aspirations of Holmess earlier career, were years in
which his mood as a judge can best be described as resignation. He was not able
to achieve anything like what he thought he could achieve as a judge; regularly he
19

Jurisprudence and Legal Theory

confessed his inability to do anything other than ratify what the crowd wants.
He wryly suggested that on his tombstone should be inscribed here lies the
supple tool of power, and he allegedly told JOHN W. DAVIS that if my country
wants to go to hell, I am here to help it. For these expressions of resignation he
was called distinguished, mature, and wise, the completely adult jurist.
The constitutional jurisprudence of Holmes could be called a jurisprudence of
detachment, indifference, or even despair; yet it was a jurisprudence in which
contemporary commentators revelled.
Holmess career hardly began with his appointment to the Court. He had
previously written The Common Law, a comprehensive theoretical organization
of private law subjects, taught briefly at Harvard Law School, and served for
twenty years as a justice on the Massachusetts Supreme Judicial Court. Although
he had not considered many constitutional cases as a state court judge, he had a
distinctive philosophy of judging. There was little difficulty in the transition from
the Massachusetts court to the Supreme Court; Holmes simply integrated a new
set of cases with his preexistent philosophy. That philosophys chief postulate
was that judicial decisions were inescapably policy choices, and that a judge was
better off if he did not make his choices appear too openly based on the sovereign
prerogative of his power.
Arriving at that postulate had been an unexpected process for Holmes. He was
convinced, at the time he wrote The Common Law in 1881, that private law could be
arranged in a philosophically continuous series. His lectures on torts, criminal
law, property and contracts laws stressed the ability of those subjects to be ordered
by general principles and the desirability of having judges ground their decisions
in broad predictive rules rather than deferring to the more idiosyncratic and less
predictable verdicts of juries. Holmes had accepted a judgeship in part because
he believed that he could implement this conception of private law. Academic life
was half-life, he later said, and judging or dispensation of justice gave him an
opportunity to have a share in the practical struggle of life.
In practice, however, Holmes found that the law resisted being arranged in
regular, predictable patterns. Too many factors operated to create dissonance:
the need for court majorities to congeal on the scope and language of a decision;
the insignificance of many cases, which were best decided by routine adherence
to precedent; the very difficult and treacherous policy choices truly significant
cases posed, fostering caution and compromise among judges. The result, for
Holmes, was that legal doctrines developed not as a general progression toward a
philosophically continuous series but rather as an uneven clustering of decisions
20

Nature of jurisprudence

around opposing poles that represented alternative policy judgments. Two


widely divergent cases suggested a general distinction, which initially was a clear
one. But as new cases clustered around the opposite poles, and begged to approach
each other, the distinction became more difficult to trace. Eventually an arbitrary
mathematical line was drawn, based on considerations of policy.
Thus judging was ultimately an exercise in making policy choices, but since the
choices were often arbitrary and judges had a general duty not to change but
to work out the principles already sanctioned by the practice of the past, bold
declarations of general principles were going to be few and far between. Indeed
in many cases whose resolution he thought to turn on questions of degree, or
nice considerations, or line drawing, Holmes attempted, as a state court judge,
to avoid decision. He delegated questions of degree to juries where possible; he
relied on precedents even where he felt that they had ceased to have a functional
justification; he adhered to the findings of trial judges; he resorted to technicalities
to determine the precise place of division. And on those relatively few occasions
when he was asked to consider the impact of a legislatures involvement, Holmes
tended to defer to legislative solutions, especially in close cases. Most differences,
he said in one case, were only one[s] of degree, and difference of degree is one
of the distinctions by which the right of the legislature to exercise the STATE
POLICE POWER is determined. Deference to the legislature was another means
of avoiding judicial policy choices.
Holmes thus brought a curious, if consistent, theory of judging with him to the
Supreme Court. Although his original aim as a legal scholar had been the derivation
of general guiding principles in all areas of law, as a judge he had concluded that
principles were not derived in a logical and continuous but in a random and arbitrary
fashion, and that in hard cases, where principles competed, policy considerations
dictated the outcome. Judges should be sensitive to the fact that cases did involve
policy choices, but they should exercise great caution in making them. Hard cases,
turning on questions of degree or nice considerations should be delegated to
other lawmaking bodies, such as the jury and the legislature, that were closer to
the instinctive preferences and inarticulate convictions of the community. What
started out as a theory of bold, activist judicial declarations of principle had ended
as a theory of deference to lawmakers who were more at liberty to decide with sole
reference to convictions of policy and right. The creative jurist of The Common
Law had become the apostle of judicial self-restraint.
In his first month in the Supreme Court Holmes wrote to his longtime
correspondent Sir Frederick Pollock that he was absorbed with the variety and
21

Jurisprudence and Legal Theory

novelty of the questions. And indeed Holmess docket was strikingly different
from that he had encountered as a Massachusetts state judge: more federal issues,
a greater diversity of issues, and far more cases involving the constitutionality of
legislative acts. But the new sets of cases did not require Holmes to modify his
theory of judging; they merely emphasized his inclination to defer hard policy
choices to others. As a Massachusetts state judge Holmes had found only one
act of the Massachusetts legislature constitutionally invalid; as a Supreme Court
justice he was to continue that pattern. His first opinion, Otis v. Parker1, sustained
a California statute prohibiting sales of stock shares on margin on the ground that
although the statute undoubtedly restricted freedom of exchange, that general
proposition did not take us far. The question was one of degree: how far could
the legislature restrict that freedom? Since the statutes ostensible purpose, to
protect persons from being taken advantage of in stock transactions was arguably
rational; Holmess role was to defer to the legislative judgments.
Otis v. Parker2 set a pattern for Holmess decisions in cases testing the
constitutionality of economic regulations. Rarely did he find that questions posed
by statutes were not ones of degree; rarely did he fail to uphold the legislative
judgment. He believed that the New York legislature could regulate the hours of
bakers in Joseph Lochner V. New York3 where the State sought to limit the hours
of Bakers, regulate their wages at $12 per day, even though he thought that hours
and wages laws merely shifted the burden to a different point of incidence. In 1902
the Utica bakeshop owner was fined for violating the law. Appealing to the US
Supreme court, Joseph Lochner claimed that the Statute violated the Fourteenth
Amendment guarantee that no person shall be denied life and liberty without
due process of the law. This constitutional right of due process was originally a
guarantee of correct judicial procedure. But under the theory of substantive due
process, courts assumed the power to examine the content of legislation as well
as the means in which it was enforced. Thus courts could invalidate any type of
State economic or reform legislation which is in conflict with a constitutional
protected right. The decision in this case against the government made Justice
Wendell Oliver to be considered fearless at the time. He supported Prohibition
and Antitrust legislation notwithstanding his beliefs that legislation to make
people better was futile and that the Sherman Act which was meant to break
monopoly and create competition was damned nonsense. His position, in short,
was that when a State legislature has declared that in its opinion policy requires a
1
U.S. 606 (1903) Argued Dec. 11-12 1902
2 Supra
3
U. S. 45 (1905) New York

22

Nature of jurisprudence

certain measure, its actions should not be disturbed by the courts unless they have
clearly seen that there is no fair reason for the law. That law was to destroy entities
that could harm competition and up to date the reference that law is anachronistic.
Similarly, deference for Holmes did not mean absolute passivity. He thought
Congress and the States had gone too far in convicting dissidents in a number of
war-related speech cases, including the decision in Abrams V. United States4 the
case were a decision of the US Supreme court involving the 1918 Amendment to
the Espionage Act of 1917, which made it a criminal offence to urge the curtailment
of production of the material necessary to the war against Germany with intent to
hinder the progress of the war; The Act makes it a Seditious offence to publish any
article that may hinder the progress of the war. The defendants who were charged
under this Act were convicted by the decision of the court with a majority of 7-2.
Justice Oliver Wendell and Louis Branders dissented when the majority of the
citizens were said to be against the judgment, suggesting that non legal factors,
especially, public opinion should affect the judgment of the court regardless of
what the law is. Similarly, in Gilto V. New York and United States V. Schwimmer5
he invalidated a Pennsylvania statute that regulated mining operations without
adequate compensation.
Holmes was called, especially in the 1920s, the Great Dissenter, and some of his
dissenting opinions were memorable for the pithiness of their language. In Lochner
v. New York (supra), Holmes protested against the artificiality of the freedom
of contract argument used by the majority by saying that the FOURTEENTH
AMENDMENT does not impact on Mr. Herbert Spencers Social Statics. In Abrams
case (supra) he said that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that every year we have
to wager our salvation upon some prophecy based on imperfect knowledge. And
in Olmstead v. United States6 he decried the use of Wiretapping by federal agents:
I think it a less evil that some criminals should escape than that the government
should play an ignoble part.
Each of these dissents was subsequently adopted as a majority position by a later
Court. Freedom of contract was repudiated as a constitutional doctrine in West
Coast Hotel V. Parrish7; Holmess theory of free speech was ratified by the Court

4
5
6
7

U. S 616 (1919)
U. S.644(1929)
U. S. 438 (1958)
U. S. 379 (1937)

23

Jurisprudence and Legal Theory

in such decisions as Herndon V. Lowry8, Yates V. United States9 and Berger V. New
York10 overruled the majority decision in Olmstead. Despite the eventual triumph
of Holmess position in these cases and despite the rhetorical force of his dissents,
Great Dissenter is a misnomer by any standard other than a literary one. Holmes
did not write an exceptionally large number of dissents, given his long service in
the Court, and his positions were not often vindicated.
Holmess dissents also gave him the reputation among commentators as being
a liberal justice. But for every Holmes decision protecting CIVIL LIBERTIES
one could find a decision restricting them. The same Justice who declared in
Abrams v. United States11 that we should be eternally vigilant against attempts to
check the expression of opinions held for the Court in Buck v Bell12 that a state
could sterilize mental defectives without their knowing consent. It is better for
the world, if instead of waiting to execute degenerate offspring for crime, or to
let them starve for their imbecility, society can prevent those who are manifestly
unfit from continuing their kind, Holmes argued. Three generations of imbeciles
are enough.
Holmes supported the constitutionality of laws prohibiting child labor, defended
the right of dissidents to speak, and resisted government efforts to wiretap
bootleggers. At the same time he upheld the compulsory teaching of English in
public schools, supported the rights of landowners in child trespasser cases, and
helped develop a line of decisions giving virtually no constitutional protection
to Aliens. For a time critics ignored these latter cases and followed the New York
Times in calling Holmes the chief liberal of the supreme bench for twenty-nine
years, but recent commentary has asserted that Holmes was largely indifferent
to civil liberties.
Holmess constitutional thought, then, resists ideological characterization and
is notable principally for its limited interpretation of the power of JUDICIAL
REVIEW. How thus does one explain Holmess continued stature? In an age where
JUDICIAL ACTIVISM, especially on behalf of minority rights, is a commonplace
phenomenon, Holmess interpretation of his office appears outmoded in its
circumscription. In an age where the idea of rights against the state has gained in
prominence, Holmess decisions appear to tolerate altogether too much power in
legislative majorities. Only in the speech cases does Holmes seem to recognize
8
U. S. 242 Vol. 301 (1937)
9
U. S. 298 (1957)
10 U. S. 41 (1947)
11 Supra.
12 274 U. S. 200 (1927)

24

Nature of jurisprudence

that the contribution of dissident minorities can prevent a societys attitudes from
becoming provincial and stultifying. Elsewhere Holmess jurisprudence stands for
the proposition that the state, as agent of the majority, can do what it likes until
some other majority seizes power. That hardly seems a posture inclined to elicit
much contemporary applause.
Yet Holmess reputation remains, on all the modern polls, among the highest of
those Justices who have served on the Supreme Court. It is not likely to change for
three reasons. First, in an era that was anxious to perpetuate the illusion that judicial
decision making was somehow different from other kinds of official decision
making, since judges merely found or declared law, Holmes demonstrated that
judging was inescapably an exercise in policymaking. This insight was a breath of
fresh air in a stale jurisprudential climate. Against the ponderous intonations of
other judges that they were making no laws, deciding no policy and never entering
into the domain of public action, Holmes offered the theory that they were doing
all those things. American jurisprudence was never the same again.
Second, Holmes, as a sitting judge, followed through the implications of his
insight. If judging was inevitably an exercise in policy choices, if all legal questions
eventually became questions of degree, then there was much to be said for
judges avoiding the arbitrary choice. Other institutions existed whose mandate
for representing current community sentiment seemed clearer than the judiciarys;
judging could be seen as an art of avoiding decision in cases whose resolution
appeared to be the arbitrary drawing of a line. In a jurisprudential climate that
was adjusting to the shock of realizing that judges were making law, Holmess
theory of avoidance seemed to make a great deal of sense. Federal judges were not
popularly elected officials; if they made the process of lawmaking synonymous
with their arbitrary intuitions, the notion of popularly elected government seemed
threatened. The wisdom in Holmess approach to judging seemed so apparent that
it took the WARREN COURT to displace it.
These first two contributions of Holmes, however, can be seen as having a historical
dimension. To be sure, seeing judges as policymakers was a significant insight,
but it is now a commonplace; judicial deference was undoubtedly an influential
theory, but it has now been substantially qualified. The enduring quality of
Holmes appears to rest on his having a first-class mind and in his unique manner of
expression: his style. No judge has been as quotable as Holmes; no judge has come
closer to making opinion writing a form of literature. Paradoxically, Holmess style,
which is notable for its capacity to engage the readers emotions in a manner that
transcends time and place, can be seen as a style produced out of indifference. The
25

Jurisprudence and Legal Theory

approach of Holmes to his work as a judge was that of a person more interested
in completing his assigned tasks than in anything else. Holmes would be assigned
opinions at a Saturday conference and seek to complete them by the following
Tuesday; his opinions are notable for their brevity and their assertiveness. The
celebrated epigrams in Holmess opinions were rarely essential to the case; they
were efforts to increase the emotional content of opinions whose legal analysis
was often cryptic.
Holmess style of writing was of a piece with his general attitude toward judging.
Since judging was essentially an effort in accommodating competing policies, the
outcome of a given case was relatively insignificant. Just where the line was drawn
or where a given case located itself in a cluster of related cases insignificant.
One might as well, as a judge, announce ones decision as starkly and vividly as
one could. A sense of the delicacy and ultimate insignificance of the process of
deciding a case, then, fostered a vivid, emotion-laden, and declarative style.
Thus the legacy of Holmess constitutional opinions is an unusual one. As
contributions to the ordinary mine run of legal doctrine, they are largely
insignificant. Their positions are often outmoded, their analyses attenuated, their
guidelines for future cases inadequate. One feels, somehow, that Holmes has
seen the clash of competing principles at stake in a constitutional law case, but
has not probed very far. Once he discovered what was at issue, he either avoided
decision or argued for one resolution in a blunt, assertive, and arbitrary manner.
One cannot take a Holmes precedent and spin out the resolution of companion
cases; one cannot go to Holmes to find the substantive bottoming of an area of
law. Holmess opinions are like a charismatic musical performance: one may be
inspired in the viewing but one cannot do much with ones impressions later.
As literary expressions, however, Holmess opinions probably surpass those of
any other Justice. While it begs questions and assumes difficulties away to say
that a policeman may have a constitutional right to talk politics, but he has no
constitutional right to be a policeman, the vivid contrast catches ones imagination.
While three generations of imbeciles are enough was a misstatement of the facts
in Buck v. Bell and represents an attitude toward mentally retarded persons one
might find callous, it engages us, for better or worse. In phrases like these Holmes
will continue to speak to subsequent generations; his constitutional opinions,
and consequently his constitutional thought, will thus endure. It is ironic that
Holmes bequeathed us those vivid phrases because he felt that a more painstaking,
balanced approach to judging was futile. He thought of judging, as he thought of
life, as a job, and he got on with it.
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Nature of jurisprudence

1.1.5 Rudolf Von Ihering (1818-1892)


Ihering was a political philosopher who believed that laws should be made basically
in the interest of the people. He placed great emphasis on the function of laws as
an instrument for serving the needs of the society. He believes that in every society
there is always a conflict between individual social interest and collective social
interest. The solution according to him is that state must employ both the method
of reward, by enabling economic wants to be satisfied, and the method of coercion.
He agrees that there will always be individual selfish interest but the success of
every society will be determined by how government authority is able to balance
this conflict. However he made no blueprint on how this is to be achieved. He was
a German legal scholar, sometimes called the father of sociological jurisprudence;
he developed a philosophy of social utilitarianism in emphasizing the need of the
society rather than individual needs. He believed in all the propositions of Jeremy
Bentham but advanced further that law is scientific and is meant to protect the
generality of the people not individuals.

1.1.6 Eugene Ehrlich (1862 1922)


Ehrlich jurisprudence believes that in society law is not what the analytical jurist
sees it as but it is something that is accepted by the general public as law. For
him law is derived from social facts and depends not on state authority but on
social compulsion. He however, believes that there would be some level of social
compulsion under that kind of society. To him laws are not what are contained in
the statute books or legislation but societys activity itself should be considered as
law. He believes in the living law or guidelines on conducts of members of the society
which may be a guide post for every other kind of law.
Eugene believes that the best law is that which is accepted by the general public
as endemic to their progress. Similarly he believes that the duty of the judge is to
compare the legislations with that of the living laws with the sole aim of integrating
them for the best interest of the society as a whole. In addition, he also commented
on heterogeneous societies where there is more than one living law. He argues that
these living laws must be ranked according to their order of priority to the different
claims and demands made upon the law by different people. Many authors have
criticized Eugene for his theory. He was not able to demonstrate the criteria or
guidelines for determining or choosing what he termed as living law. However, on
critical examination and analysis, his living law can be argued to mean the basic
natural law of the modern times.

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1.1.7 Cicero
arcus Tullius Cicero chose a career in the legal profession. To prepare for this
M
career, he studied jurisprudence, rhetoric, and philosophy. When he felt he was
ready, he began taking part in legal cases. A career in the law could lead to political
success for several reasons, all of which are still relevant today. First, a lawyer
would gain a great deal of experience in making speeches. Second, he could also
gain exposure and popularity from high-profile cases. Finally, a successful lawyer
would build up a network of political connections, which is important now but
was even more important in Ciceros time, when political competition was not
conducted along party lines or on the basis of ideology, but instead was based on
loose, shifting networks of personal friendships and commitments. Cicero proved
to be an excellent orator and lawyer, and a shrewd politician. He was elected to
each of the principal Roman offices, on his first trial and at the earliest age at which
he was legally allowed to run for them. Having held offices made him a member of
the Roman Senate. This body had no formal authority but could only offer advice
and its advice was almost always followed. He was, as can be imagined, very proud
of his successes.
During his term as Consul (the highest Roman office) in 63 BC he was responsible
for unraveling and exposing the conspiracy of Catiline, which aimed at taking over
the Roman state by force, and five of the conspirators were put to death without
trial on Ciceros orders. Cicero was proud of this too, claiming that he had singlehandedly saved the commonwealth; many of his contemporaries and subsequent
commentators have suggested that he exaggerated the magnitude of his success.
But there can be little doubt that Cicero enjoyed widespread popularity at this
time though his policy regarding the Catilinarian conspirators had also made
him enemies, and the executions without trial gave them an opening.
The next few years were very turbulent, and in 60 BC Julius Caesar, Pompey,
and Crassus (often referred to today as the First Triumvirate) combined their
resources and took control of Roman politics. Recognizing his popularity and
talents, they made several attempts to get Cicero to join them, but Cicero hesitated
and eventually refused, preferring to remain loyal to the Senate and the idea of
the Republic.
Cicero and the Academic Skeptics
In Ciceros time there were in fact two schools claiming to have descended from
the First Academy, established by Plato. Cicero studied briefly in both the Old
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Nature of jurisprudence

Academy and the New Academy; the differences between the two need not
concern us. What they shared was their basic commitment to skepticism: a belief
that human beings cannot be certain in their knowledge about the world, and
therefore no philosophy can be said to be true. The Academic Skeptics offered little
in the way of positive argument themselves; they mostly criticized the arguments
of others.
This can be annoying, but it requires real mental abilities, including the ability to
see all sides of an issue and to understand and accept that any belief, no matter
how cherished, is only provisional and subject to change later if a better argument
presents itself. It is the approach which underlies the modern scientific method,
though the Academics did not use it in that way. Even something like evolution,
for which there is mountains of evidence and seemingly no reasonable alternative,
is treated as a theory subject to change if needed rather than an eternal truth.
And it is this approach which Cicero embraced. This is not surprising if we
consider again why he was interested in philosophy in the first place. As a lawyer,
he would need to see as many sides of an argument as possible in order to argue
his clients cases effectively. He would have to marshal all the available evidence
in a methodical way, so as to make the strongest possible case, and he would have
to accept that he might at any time have to deal with new evidence or new issues,
forcing him to totally reconsider his strategies. As a politician, he would need a
similar grasp of the issues and a similar degree of flexibility in order to speak and
to act effectively. A lawyer or politician who fanatically sticks to a particular point
of view and cannot change is not likely to be successful. Adopting the teachings
of the Academy also allowed Cicero to pick and choose whatever he wanted from
the other philosophical schools, and he claims to do this at various points in his
writings. Finally, his allegiance to the Academy helps to explain his use of the
dialogue form: it enables Cicero to put a number of arguments in the mouths of
others without having to endorse any particular position himself.
The natural law is also the source of all properly made human laws and communities.
Because human beings share reason and the natural law, humanity as a whole can
be thought of as a kind of community, and because each of us is part of a group
of human beings with shared human laws, each of us is also part of a political
community. This being the case, we have duties to each of these communities, and
the Stoics recognized an obligation to take part in politics in order to discharge
those duties. The Stoic enters politics not for public approval, wealth, or power but
in order to improve the communities of which they are a part. If politics is painful,

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as it would often prove to be for Cicero; this is insignificant. What matters is that
the virtuous life requires it.
The Implication of Ciceros writings
Ciceros written work can be sorted into three categories. None can be said to
represent the true Cicero, and all of Ciceros work, we must remember, has a
political purpose. This does not make it worthless as philosophy, but it should
make us cautious about proclaiming anything in particular to be what Cicero
really thought. Also, as an Academic skeptic, Cicero felt free to change his mind
about something when a better position presented itself, and this makes it even
more difficult to bring his writing together into a coherent whole.
The first category of Ciceros work is his philosophic writings, many of which were
patterned after Platos or Aristotles dialogues. These writings, in chronological
order, include on Invention, on the orator, on the Republic, on the Laws, Brutus,
Stoic Paradoxes, The Orator, Consolation, Hortensius, Academics, on Ends,
Tusculan Disputations, on the Nature of the Gods, on Divination, on Fate, on
Old Age, on Friendship, Topics, on Glory and on Duties. Unfortunately, several of
them have been lost almost entirely. On the value of philosophy, the Consolation,
which Cicero wrote to himself on the death of his beloved daughter Tullia in order
to overcome his grief and several of the others are available only in fragmentary
condition (notably the Laws, which Cicero may never have finished, and the
Republic, fragments of which were only discovered in 1820 in the Vatican).
Cicero lays out the laws that would be followed in the ideal commonwealth
described in On the Republic. Finding the source of law and justice, he says, requires
explaining what nature has given to humans; what a quantity of wonderful things
the human mind embraces; for the sake of performing and fulfilling what function
we are born and brought into the world; what serves to unite people; and what
natural bond there is between them. Philosophy teaches us that by nature human
beings have reason, that reason enables us to discover the principles of justice, and
that justice gives us law. Therefore any valid law is rooted in nature, and any law
not rooted in nature (such as a law made by a tyrant) is no law at all. The gods also
share in reason, and because of this they can be said to be part of a community
with humanity. They care for us, and punish and reward us as appropriate. Much
of what remains of this dialogue is devoted to religious law.
He states that a dialogue which sets out the case, pros and cons, of the several
philosophic schools on the question of the end or purpose of human life can be
debated without any side of the divide claiming absolute victory. For Cicero, and
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Nature of jurisprudence

arguably for ancient philosophy generally, this was the most important question:
What is the end, the final and ultimate aim, which gives the standard for all
principles of right living and of good conduct? Today many are inclined to believe
that an answer to this question, if an answer exists at all, must be found in religion,
but Cicero held that it was a question for philosophy, and this text was meant to
popularize among the Romans the various answers that were being offered at the
time. As with Academics, the reader must decide which case is most persuasive.
This was another attempt to popularize philosophy at Rome and demonstrate that
the Romans and their language had the potential to achieve the very highest levels
of philosophy. This book presents the argument that death is an evil; however the
argument can be refuted. Secondly the argument that pain is an evil including the
argument that the wise man will not suffer from anxiety and fear or that the wise
man does not suffer from excessive joy or lust have been refuted by this school.
Similarly, Cicero argues that virtue, found through philosophy, is sufficient for a
happy life. These positions are all compatible with Stoicism which Cicero appears
to be indifferent with their theory.

1.1.8 Karl Marx


Classical Marxist theory
What is now considered classical Marxist theory was developed by Karl Marx and
Friedrich Engels. Marx and Engels rejected what they viewed as the naive idealism
of contemporary European thought. At the time they wrote, German philosophy
in particular was typically idealistic in orientation, by which is meant that reality
lay in ideas or forms of government.
Thus a more and more sophisticated understanding of the ideas framing our
understanding of the natural world led to scientific achieve
ment; a more
sophisticated understanding of ideas of the nature of man and his social relations
led to political progress, and so on. Marx and Engels advanced an alternative
understanding of human progress, which rather than a form of idealism, was
a form of materialism. It was not mans greater sophistication in ideas which
explained historical social change, but rather his material conditions, in particular
the means of economic production. Social and political structure, in particular the
class structure of society, reflected the ownership of resources and the division of
labour at anyone period in history.
Marxs and Engels materialism incorporated a dialectical theory of progress
derived from the work of G.W.F Hegel. Hegel (1770-1831) proceeded from
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Jurisprudence and Legal Theory

Immanuel Kants proposition that every thesis has a contrary antithesis to argue
that the contradiction between thesis and antithesis can be resolved to reveal a
higher reality termed a synthesis. As an idealist, Hegel argued that mans under
standing of any phenomenon developed in stages as one imperfect idea (thesis) was
revealed to be only a partial understanding of reality; that aspect of reality which it
failed to capture (antithesis) worked in opposition to it, generating a kind of crisis
of understanding. The crisis of understanding was resolved as the tension or battle
between thesis and antithesis was overcome by the realization of a synthesis. The
synthesis both overcame the tension and preserved the truth that lay in the prior,
partial grasp of reality. The new synthesis would then serve as a new thesis, whose
partiality would again be revealed by a new antithesis, the tension to be resolved
once more by a new synthesis. This dialectic then was conceived as a continuing
process resolving contradictions in the attainment of higher states of knowledge
until a condition of absolute understanding would be reached. According to this
Hegelian dialectic social development is also seen as a continuing resolution of
contradictions leading to a final synthesis in the achievement of the optimum
conditions of human life. For Hegel the primary vehicle for this process of develop
ment was the State which, consequently, he emphasized as an entity greater than
the sum of its parts and having an importance which transcends the interests of
its individual members. In the Hegelian State the individual finds fulfillment in
playing a proper role in the State. This view conformed neatly to the State ideol
ogy of Prussia and, after 1870, of Imperial Germany, and underlay much political
thought of the period.
Marx did not accept the Statism of the Hegelian dialectic but advanced a varied
form of the dialectical analysis, dialectical materialism, which emphasized not
an unfolding of more and more sophisticated states of knowledge but changes in
economic class-relations as the engine of social development. In classical Marxist
thought, society rests upon an economic base and all other social and political
phenomena are seen as a superstructure which rests upon it and takes its form
at any given time from the nature of the developing economic relations within
the base. It is in this sense that Marxist thought is said to be materialist. It claims
to be founded upon real economic relations in the processes of production and
exchange, rather than upon ideal states of human understanding about society.
Social understanding is rather seen as an ideological perception of the economic
relations existing at a given time.
It is important not to misunderstand Marxs notion of ideology. Nowadays people
often refer to a persons general political outlook, even their own, as their ideology.
But no one appreciates their ideology or ideological perspectives or perceptions
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Nature of jurisprudence

in Marxist terms. An ideology of a people or a class or a socio-economic group


is their intellectual frame of reference which shapes their basic attitude towards
social reality; it is unconscious-it sets the boundaries on what can be thought or
argued about. People in the grip of a racist ideology, for example, believe that as an
unalterable matter of the way things are that different races are unequal. To argue
the opposite is not just wrong; it is nonsensical.
Ideological outlooks are not adopted on the basis of reasoned argument or as the
result of a dialectical unfolding of reason: they are the beliefs or outlook that need
to be shared by the members of a society to make a particular division of labour
and distribution of resources work; for example, for feudalism to work, people
must accept that there is a more or less inevitable hierarchy of people, with peas
ants at the bottom of the ladder of agricultural production, with a warrior class at
the top. Such an ideological outlook will change as the underlying economic rela
tionships alter, from feudalism to capitalism. For the classical Marxist such change
will not be gradual or evolutionary but spasmodic and more or less violent. It is
this perception which informs the Marxist concern with revolutionary change.
In Marxist analysis it is argued that starting from an economically undifferen
tiated state of society in which all means of production and exchange are held in
common, the increasing complexity of developing economic activity will produce
clearly distinct classes defined by their role in the economic structure. It is then
argued that diversification and class orientation in economic activity concentrate
ownership and control of the means of production in a dominant class which will
then subject subordinate classes to its interests. Out of this will emanate the class
antagonism which is a hallmark of Marxist political theory. Social development is
then perceived as following the development of relations in the economic base, as
real economic power shifts and previously subordinate classes successively seize
a dominant role with the passage of time. The change is marked by revolutionary
episodes and in this respect Marxism may be seen as a form of catastrophic theory.
Classical Marxists contend that as the economic base and the balance of power
relations within it change, ideological perceptions and the superstructural institu
tions will lag behind. The pressure created by the divergence between economic
reality and the ideology on one hand and institutions on the other will eventually
prove unsustainable and at that point there will be a sudden revolutionary
realignment forcing the ideology and social superstructure to reflect the new order
of the economic base.

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Jurisprudence and Legal Theory

General Overview and Categorization of Socialism


Karl Marx and Friedrich Engels strove to put into practical effect the humanitarian
concept of Feuerbach. In so doing, they founded a new economic movement
called Socialism. According to Marx, the supreme end of man is an imminent and
material one that consists of happiness. This material happiness must be obtained
through organized collectivism. In fact, according to Marx, reality is governed
by economic needs (historical materialism). Economic reality develops according
to Hegels dialectical principles; that is, reality must deny itself in order to reach a
higher degree of being.
In application, this principle means that the present organization of society must
be destroyed (even through violent revolution, if necessary, because only through
such destruction can a better political, economic, and social organization be
achieved. To establish this new format of society, working men (the proletariat)
must be organized to take up the struggle against the capitalists who defraud them.
Thus the actors in this drama are the social classes- the proletariat is arrayed
against capitalism. This struggle, according to Marx and Engels, will end in victory
for the proletariat, that is, in the triumph of universal Socialism.
The Life and Works of Karl Marx
Karl Marx was born on May 5, 1818 and died on March 14, 1883. He was a German
economist, philosopher, and revolutionist whose writings form the basis of the
body of ideas known as Marxism. With the aid of Friedrich Engels he produced
much of the theory of modern socialism and communism. Marxs father, Heinrich,
was a Jewish lawyer who had converted his family to Christianity partly in order to
preserve his job in the Prussian state. Karl himself was baptized in the Evangelical
church. As a student at the University of Berlin, young Marx was strongly
influenced by the philosophy of George Hegel and by a radical group called
Young Hegelians, who attempted to apply Hegelian ideas to the movement against
organized religion and the Prussian autocracy. In 1841, Marx received a doctorate
in philosophy.
In 1842, Marx became editor of the Rheinische Zeitung in Cologne, a liberal
democratic newspaper for which he wrote increasingly radical editorials on social
and economic issues. The newspaper was banned by the Prussian government in
1843, and Marx left for Paris with his bride, Jenny von Westphalen. There he went
further in his criticism of society, building on the Young Hegelian criticism of

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Nature of jurisprudence

religion. Ludwig Feuerbach had written a book called The Essence of Christianity,
arguing that God had been invented by humans as a projection of their own ideals.
Feuerbach wrote that man, however, in creating God in his own image, had
alienated himself from himself. He had created another being in contrast to
himself, reducing himself to a lowly, evil creature that needed both church and
government to guide and control him. If religion were abolished, Feuerbach
claimed, human beings would overcome their alienation.
Marx applied this idea of alienation to private property, which he said caused
humans to work only for themselves, not for the good of their species. In his
papers of this period, published as Economic and Philosophic Manuscripts of 1844,
he elaborated on the idea that alienation had an economic base. He called for a
communist society to overcome the dehumanizing effect of private property.
In 1845, Marx moved to Brussels, and in 1847 he went to London. He had previously
made friends with Friedrich Engels, the son of a wealthy textile manufacturer who,
like himself, had been a young Hegelian. They collaborated on a book which was
a criticism of some of their young Hegelian friends for their stress on alienation.
In 1845, Marx jotted down some notes, Thesis on Feuerbach, which he and
Engels enlarged into a book, The German Ideology, in which they developed
their materialistic conception of history. They argued that human thought was
determined by social and economic forces, particularly those related to the
means of production. They developed a method of analysis they called dialectical
materialism, in which the clash of historical forces leads to changes in society.
In 1847 a London organization of workers invited Marx and Engels to prepare
a program for them. It appeared in 1848 as The Communist Manifesto. In it they
declared that all history was the history of class struggles. Under capitalism, the
struggle between the working class and the business class would end in a new
society, a communist one.
The outbreak of the Revolutions of 1848 in Europe led Marx to return to Cologne,
where he began publication of the Neue Rheinische Zeitung, but with the failure
of the German liberal democratic movement he moved permanently, in 1849,
to London. For many years he and his family lived in poverty, aided by small
subventions from Engels and by bequests from the relatives of Marxs wife. From
1851 to 1862 he contributed articles and editorials to The New York Tribune, then
edited by Horace Greeley. Most of his time, however, was spent in the British
Museum, studying economic and social history and developing his theories.

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Marxs ideas began to influence a group of workers and German migrs in


London, who established the International Workingmens Association in 1864,
later known as the First International. By the time of the brief Commune of Paris
in 1871, Marxs name had begun to be well known in European political circles.
A struggle developed within the International between Marx and the Russian
anarchist Mikhail Bakunin, whom Marx eventually defeated and expelled, at the
cost of destroying the International.
In 1867, Marx published the first volume of Das Kapital. The next two volumes,
edited by Engels, were published after Marxs death. The fourth volume was
edited by Karl Kautsky. Marxs last years were marked by illness and depression.
Marx continued to write treatises on socialism, urging that his followers disdain
softhearted bourgeois tendencies. At Marxs funeral in High- gate Cemetery in
London, Engels spoke of him as the best-hated and most-calumniated man of
his time. The importance of Marxs thought, however, extends far beyond the
revolutionary movements whose prophet he became. His writings on economics
and sociology are still influential in academic circles and among many who do not
share his political views.
Dialectical Materialism of Marxism
Dialectical materialism occupies a place of its own in European philosophy.
First of all it had very few exponents in academic circles outside the former
Soviet Union and Communist China, where established as the official practical
philosophical base and consequently had privileges such as are enjoyed by no
other contemporary school of philosophy. Besides, it is unique as the philosophy
of a political party -the Communists; on this account it is closely linked to the
economic and political theories as well as to the practical activity of that party, for
which it is the general theory.
In Russia where the Communist party was in control at the time, no one was
permitted to teach any other philosophy than dialectical materialism, and even
the exposition of its own classical philosophical texts was strictly supervised.
This supervision- in combination, it is true, with the Russian national character
-explains some of the odd features of dialectical-materialist publications; the
latter are strikingly different from all others through their complete uniformity.
All of their authors say exactly the same thing and make innumerable quotations
from the classical authors, who are made to yield arguments for current thesis at
every turn. Perhaps this supervision is to be blamed also for the mediocrity of
the philosophers in this school of philosophy; it is in any case responsible for the
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Nature of jurisprudence

extreme dogmatism, chauvinism, and aggressiveness of the followers of Karl Marx


and dialectical materialism.
Even more significant, however, than these peculiarities, which could be accidental,
is the reactionary character of the philosophy of Marx and its dialectical materialism,
for this philosophy leads straight back to the mid-19th century and seeks to restore
the intellectual situation of that time without the slightest alteration.
The Russians regarded Karl Marx, with whom Friedrich Engels worked in close
cooperation, as the founder of dialectical materialism. Marx belonged to the
Hegelian school, which had split into a left and a right by the time Marx was
studying at the University of Berlin. A prominent representative of the left was
Ludwig Feuerbach who interpreted the Hegelian system in a materialistic sense
and treated world history as the unfolding of matter and not of spirit.
Marx firmly supported Feuerbach but simultaneously came under the influence of
scientific materialism which was spreading at the time; this explains his enthusiasm
for science, his profound and ingenious belief in progress, and his prejudice in
favor of Darwinian evolutionism. In founding dialectical materialism, Marx linked
the Hegelian dialectic to the materialism of his day.
Marx himself was chiefly a political economist, sociologist, and social philosopher.
He is the founder of historical materialism while the general philosophical
foundation of the system, which is dialectical materialism, is essentially the work
of Engels. Dialectical materialism constitutes a link between the Hegelian dialectic
and 19th-century materialism.
Metaphysics of Marxist Theory
According to metaphysical materialism the only real world is the material world,
and the mind is simply the product of a material organ, which also can be regarded
as the brain. The contrast between matter and consciousness has no value except
for epistemology; really there is only matter. The dialectical materialists certainly
criticize the older materialistic schools, yet this criticism is not aimed against
materialism as such, but exclusively at the lack of a dialectical element, and of a
correct conception of evolution where everybody is treated as equal.
The import of dialectical materialism depends, naturally, upon the meaning
one gives to the word matter. In this respect certain difficulties are caused by
a definition given by Vladimir Lenins propositions, the man who subsequently
thought out the doctrines of Marx and Engels afresh, then expounded them
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and prescribed them for the Communist party. According to Lenin, matter is
simply a philosophical category serving to indicate objective reality. In Lenins
epistemology matter is throughout opposed to consciousness by equating matter
and objective reality.
Still, we are not left in the dark upon this point, because in other places the
dialectical materialists maintain that we can know matter by means of the
senses, that matter underlies causal and deterministic laws, and that it is opposite to
consciousness; briefly, it is clear that the usage of the word matter by the dialectical
materialists differs in way from the popular one. Dialectical materialism is classical
and radical materialism.
Yet this materialism is not mechanical. According to the accepted teaching, only
inorganic matter is subject to mechanical laws and not living matter, although the
latter is certainly governed by the laws of causal determinism. Even in physics the
dialectical materialists do not defend unconditioned atomism.
Matter is in continuous evolution toward the formulation of ever more complex
beings- atoms, molecules, living cells, plants, men, society. Thus evolution is not
regarded as cyclic but as linear. Besides, evolution is regarded optimistically- the
latest stage is always the most complex, which in its turn is equated with the best
and the noblest. The dialectical materialists still retain a thoroughly 19th-century
belief in progress through evolution.
According to them this evolution consists in a series of revolutions- small
quantitative alterations in the essence of a thing pile up, tension is produced, and
a struggle takes place until at a fixed moment the new elements become strong
enough to destroy the equilibrium and a new quality emerges from the previous
quantitative alterations. This is the thesis-antithesis-synthesis paradigm. Conflict,
therefore, exemplifies the driving force of evolution which proceeds by leaps -this
is the so-called dialectical evolution.
The entire course of evolution is aimless, being achieved as a result of encounters
and combats under the impact of purely causal factors. Strictly speaking, the world
has neither a meaning nor a goal and evolves blindly in accordance with eternal,
deterministic laws.
There is nothing permanent; the whole world and all its elements are swept along
by the dialectical evolution; in every place and at all times the old dies and the new
comes to birth; there are neither permanent substances nor eternal principles.
Only matter and the laws of its change exist externally amid universal movement.

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Nature of jurisprudence

The world must be conceived as a unified whole. In contrast to metaphysics which


(say the Marxists) sees the world as a host of disconnected entities, the dialectical
materialists are representative of monism in a twofold sense. They see the world
as the unique reality and they see its principle as homogeneous thus; dualism and
pluralism of any sort are rejected as false.
The laws which govern this world are deterministic in the classical sense of the
world. It is true that the dialectical materialists do not, for various reasons, wish to
be classified as determinists, and for this reason teach that a plants growth, for
instance, is not entirely determined by the laws of this plant because an external
factor, such as hail, can render them inoperative. But in relation to the whole of
things the dialectical materialists firmly rule out accidents- the worlds laws in their
totality determine the entire process of the universe with no exception.
Psychology of Marx Theory
Mind or consciousness is nothing but an epiphenomenon, a copy, a reflection,
a photograph of matter. Consciousness cannot exist without the body and is a
product of the brain. Matter is the primary datum, and consciousness (or mind) is
secondary; consequently consciousness is not the determinant of matter but, vice
versa, matter of consciousness. Psychology is thus materialistic and determinist.
Nevertheless, this determinism is subtler than the earlier materialist version. For
one thing the dialectical materialists do not wish to be out-and-out determinists.
Freedom, to them, consists in the possibility of deriving benefit from the laws of
nature; even man, of course, is subject to these laws but he is aware of the fact and
his freedom lies in the simple awareness of necessity (as with Hegel). Furthermore,
they maintain, matter does not determine consciousness directly but works
through the medium of society.
Thus man is essentially social, unable to live without society; only in society can he
produce the necessities of life. But the means and the methods for such production
first of all determine interpersonal relationships and these in turn determine mans
consciousness. This is the theme of historical materialism; everything that a man
thinks, wishes, or wills is in the final analysis a consequence of his social needs,
just as they in turn result from methods of production and the social relationships
created by this production.
These methods and relationships are continually changing and thereby society
becomes subject to the law of dialectical evolution which comes to light in the

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class struggle. The total content of human consciousness is determined by society


and changes along with social progress.
Epistemology
Since matter determines consciousness, knowledge must be conceived in a realistic
fashion; the subject does not create the object, for the object exists independently
of the subject. Knowledge results from the fact that copies, reflections, or
photographs of matter are present in the mind. The world is not ignorant but
is thoroughly knowledgeable. Naturally the true method of knowing consists
solely in science combined with technical practice. Technical progress shows well
enough the degeneracy of all agnosticism. Though knowledge is essentially sense
knowledge, rational thought is necessary to organize these experiential data.
Positivism is bourgeois charlatanry and idealism, because we do actually grasp
the essences of things through phenomena.
So far Marxist epistemology sets itself up as absolute naive realism of the usual
empiricist type. The peculiarity of Marxist materialism lies in the fact that it
combines this realistic outlook with another one, the pragmatic. From the notion
that all contents of our consciousness are determined by our economic needs it
follows equally that each social class has its own science and its own philosophy.
An independent, nonparty science is impossible; the truth is whatever leads to
success, and practice alone constitutes the criterion of truth.
Both these theories of knowledge are found side by side in Marxism without
anyone trying very hard to harmonize them. The most they will concede is that our
knowledge is striving for the absolute truth, but that for the moment it is simply
relative, answering to our needs. Here the theory seems to fall into contradiction,
for if the truth were relative to our needs then knowledge would never be a copy of
reality (not even a partial copy).
The Values of the Theory
According to historical materialism all contents of consciousness are the result
of economic needs which, in turn, are continuously changing. This applies
particularly to morality, aesthetics and religion.
With regard to historical morality, materialism recognizes no eternal code whatever
and teaches that each social class has its own morality. The highest moral rule for
the proletariat- the most progressive class- is that only that is morally good which
contributes to the destruction of bourgeois society.
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In aesthetics things are more complicated. It must readily be admitted that in


reality, there exists an objective element which acts as the ground of our aesthetic
appreciation and permits us to see things as either beautiful or ugly. But on the
other hand this appreciation also depends upon evolution; each class having its
own special needs, each has its own scale of values. Consequently, art should not
be cut off from life but must portray the heroic efforts of the proletariat in its fight
to establish a socialist world (socialist realism).
Finally, a very different temper prevails in its theory about religion. Dialectical
materialism treats religion as a conglomeration of false and fantastic statements
which science has condemned and science alone is the way to knowledge.
Religion originates in fear; in their powerlessness before nature, and later before
their exploiters, men have defied these powers and petitioned them, finding in
religion and other worldly beliefs a consolation which their exploited and slavish
existence could not afford them.
However, the exploiters (feudalists, capitalists, etc.) regard religion as a superb
means of keeping the masses under their yoke; firstly, it makes them obedient to
their exploiters and, secondly, it prevents the proletariat from revolting through
promising them a better lot after death. The proletariat exploits no one, and so
needs no religion. While morality and aesthetics are only subject to change,
religion must vanish completely. The value of the theory is that everybody has
equal opportunity in the socialist system of government.

1.1.9 Aristotle
Aristotle is a towering figure in ancient Greek philosophy, making contributions
to logic, metaphysics, mathematics, physics, biology, botany, ethics, politics,
agriculture, medicine, dance and theatre. He was a student of Plato who in turn
studied under Socrates. He was more empirically-minded than Plato or Socrates
and is famous for rejecting Platos theory of forms.
As a prolific writer and polymath, Aristotle radically transformed most, if not
all, areas of knowledge he touched. It is no wonder that Aquinas referred to
him simply as The Philosopher. In his lifetime, Aristotle wrote as many as 200
treatises, of which only 31 survived. Unfortunately for us, these works are in the
form of lecture notes and draft manuscripts never intended for general readership,
so they do not demonstrate his reputed polished prose style which attracted many
great followers, including the Roman Cicero. Aristotle was the first to classify areas

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of human knowledge into distinct disciplines such as mathematics, biology and


ethics. Some of these classifications are still used today.
As the father of the field of logic, he was the first to develop a formalized system for
reasoning. Aristotle observed that the validity of any argument can be determined
by its structure rather than its content. A classic example of a valid argument is
his syllogism: All men are mortals; Socrates is a man; therefore, Socrates is a mortal.
Given the structure of this argument, as long as the premises are true, then the
conclusion is also guaranteed to be true. Aristotles brand of logic dominated this
area of thought until the rise of modern propositional logic and predicate logic
2000 years later.
Aristotles emphasis on good reasoning combined with his belief in the scientific
method forms the backdrop for most of his work. For example, in his work in ethics
and politics, Aristotle identifies the highest good with intellectual virtue; that is, a
moral person is one who cultivates certain virtues based on reasoning. And in his
work on psychology and the soul, Aristotle distinguishes sense perception from
reason, which unifies and interprets the sense perceptions and is the source of
all knowledge.
Aristotle famously rejected Platos theory of forms, which states that properties
such as beauty are abstract universal entities that exist independent of the objects
themselves. Instead, he argued that forms are intrinsic to the objects and cannot
exist apart from them, and so must be studied in relation to them. However, in
discussing art, Aristotle seems to reject this, and instead argues for idealized
universal form which artists attempt to capture in their work.
The Life of Aristotle
Aristotle was born in 384 BC at Stagirus, a now extinct Greek colony and seaport
on the coast of Thrace. His father Nichomachus was court physician to King
Amyntas of Macedonia, and from this began Aristotles long association with
the Macedonian Court, which considerably influenced his life. While he was still
a boy his father died. At age 17 his guardian, Proxenus, sent him to Athens, the
intellectual center of the world, to complete his education. He joined the Academy
and studied underPlato, attending his lectures for a period of twenty years. In the
later years of his association with Plato and the Academy he began to lecture on
his own account, especially on the subject of rhetoric. At the death of Plato in 347,
the pre-eminent ability of Aristotle would seem to have designated him to succeed
to the leadership of the Academy. But his divergence from Platos teaching was too
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great to make this possible, and Platos nephew Speusippus was chosen instead.
At the invitation of his friend Hermeas, ruler of Atarneus and Assos in Mysia,
Aristotle left for his court. He stayed three years and while there married Pythias,
the niece of the King. In later life he was married a second time to a woman named
Herpyllis, who bore him a son, Nichomachus. At the end of three years Hermeas
was overtaken by the Persians, and Aristotle went to Mytilene. At the invitation
of Philip of Macedonia he became the tutor of his 13 year old son Alexander (later
world conqueror); he did this for the next five years. Both Philip and Alexander
appear to have paid Aristotle high honor, and there were stories that Aristotle was
supplied by the Macedonian court, not only with funds for teaching, but also with
thousands of slaves to collect specimens for his studies in natural science. These
stories are probably false and certainly exaggerated.
Upon the death of Philip, Alexander succeeded to the kingship and prepared
for his subsequent conquests. Aristotles work being finished, he returned to
Athens, which he had not visited since the death of Plato. He found the Platonic
school flourishing under Xenocrates, and Platonism the dominant philosophy
of Athens. He thus set up his own school at a place called the Lyceum. When
teaching at the Lyceum, Aristotle had a habit of walking about as he discussed.
It was in connection with this that his followers became known in later years as
theperipatetics, meaning to walk about. For the next thirteen years he devoted
his energies to his teaching and composing his philosophical treatises. He is said
to have given two kinds of lectures: the more detailed discussions in the morning
for an inner circle of advanced students, and the popular discourses in the evening
for the general body of lovers of knowledge. At the sudden death of Alexander
in 323 BCE, the pro-Macedonian government in Athens was overthrown, and a
general reaction occurred against anything Macedonian. A charge of impiety
was trumped up against him. To escape prosecution he fled to Chalcis in Euboea
so that (Aristotle says) The Athenians might not have another opportunity of
sinning against philosophy as they had already done in the person of Socrates. In
the first year of his residence at Chalcis he complained of a stomach illness and
died in 322 BCE.
The Writings of Aristotle
It is reported that Aristotles writings were held by his student Theophrastus, who
had succeeded Aristotle in leadership of the Peripatetic School. Theophrastuss
library passed to his pupil Neleus. To protect the books from theft, Neleuss heirs
concealed them in a vault, where they were damaged somewhat by dampness,
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moths and worms. In this hiding place they were discovered about 100 BCE by
Apellicon, a rich book lover, and brought to Athens. They were later taken to
Rome after the capture of Athens by Sulla in 86 BCE. In Rome they soon attracted
the attention of scholars, and the new edition of them gave fresh impetus to the
study of Aristotle and of philosophy in general. This collection is the basis of the
works of Aristotle that we have today. Strangely, the list of Aristotles works given
by Diogenes Laertius does not contain any of these treatises. It is possible that
Diogenes list is that of forgeries compiled at a time when the real works were lost
to sight.
The works of Aristotle fall under three headings: (1) dialogues and other works of
a popular character; (2) collections of facts and material from scientific treatment;
and (3) systematic works. Among his writings of a popular nature the only one
which we possess of any consequence is the interesting tractOn the Polity of the
Athenians. The works on the second group include 200 titles, most in fragments,
collected by Aristotles school and used as research. Some may have been done
at the time of Aristotles successor Theophrastus. Included in this group are
constitutions of 158 Greek states. The systematic treatises of the third group are
marked by a plainness of style, with none of the golden flow of language which
the ancients praised in Aristotle. This may be due to the fact that these works were
not, in most cases, published by Aristotle himself or during his lifetime, but were
edited after his death from unfinished manuscripts. Until Werner Jaeger (1912) it
was assumed that Aristotles writings presented a systematic account of his views.
Jaeger argues for an early, middle and late period (genetic approach), where the
early period follows Platos theory of forms and soul, the middle rejects Plato, and
the later period (which includes most of his treatises) is more empirically oriented.
Aristotles systematic treatises may be grouped in several divisions:

Logic

Categories (10 classifications of terms)


1. On Interpretation (propositions, truth, modality)
2. Prior Analytics (syllogistic logic)
3. Posterior Analytics (scientific method and syllogism)
4. Topics (rules for effective arguments and debate)
5. On Sophistical Refutations (informal fallacies)
6. Physical works
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Physics (explains change, motion, void, time)


7. On the Heavens (structure of heaven, earth, elements)
8. On Generation (through combining material constituents)
9. Meteorologics (origin of comets, weather, disasters)
10. Psychological works

On the Soul (explains faculties, senses, mind, imagination)


11. On Memory, Reminiscence, Dreams, and Prophesying
12. Works on natural history

History of Animals (physical/mental qualities, habits)


13. On the parts of Animals
14. On the Movement of Animals
15. On the Progression of Animals
16. On the Generation of Animals
17. Minor treatises
18. Problems
19. Philosophical works

Metaphysics (substance, cause, form, potentiality)


20. Nicomachean Ethics (soul, happiness, virtue, friendship)
21. Eudemain Ethics
22. Magna Moralia
23. Politics (best states, utopias, constitutions, revolutions)
24. Rhetoric (elements of forensic and political debate)
25. Poetics (tragedy, epic poetry)
26. Logic

Aristotles writings on the general subject of logic were grouped by the later
Peripatetics under the nameOrganon, or instrument. From their perspective, logic
and reasoning were the chief preparatory instrument of scientific investigation.
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Aristotle himself, however, uses the term logic as equivalent to verbal reasoning.
TheCategories of Aristotle are classifications of individual words as opposed to
sentences or propositions which include the followings: substance, quantity,
quality, relation, place, time, situation, condition, action, passion. They seem
to be arranged according to the order of the questions we would ask in gaining
knowledge of an object. For example, we ask, first, what a thing is, then how great
it is, next of what kind it is. Substance is always regarded as the most important of
thing or relationship to man.
Notions when isolated do not in themselves express either truth or falsehood: it
is only with the combination of ideas in a proposition that truth and falsity are
possible. The elements of such a proposition are the noun substantive and the
verb. The combination of words gives rise to rational speech and thought conveys
a meaning both in its parts and as a whole. Such thought may take many forms, but
logic considers onlydemonstrative forms which express truth and falsehood. The
truth or falsity of propositions is determined by their agreement or disagreement
with the facts they represent. Thus propositions are either affirmative or negative,
each of which again may be either universal or particular or undesignated. A
definition, for Aristotle is a statement of the essential character of a subject, and
involves both the genus and the difference. To get at a true definition we must
find out those qualities within the genus which taken separately are wider than
the subject to be defined, but taken together are precisely equal to it. For example,
prime, odd, and number are each wider than triplet (that is, a collection
of any three items, such as three rocks); but taken together they are just equal
to it. The genus definition must be formed so that no species is left out. Having
determined the genus and species, we must next find the points of similarity in
the species separately and then consider the common characteristics of different
species. Definitions may be imperfect by (1) being obscure, (2) by being too wide,
or (3) by not stating the essential and fundamental attributes. Obscurity may arise
from the use of equivocal expressions, of metaphorical phrases, or of eccentric
words. The heart of Aristotles logic is the syllogism, the classic example of which
is as follows: All men are mortal; Socrates is a man; therefore, Socrates is mortal.
The syllogistic form of logical argumentation dominated logic for 2,000 years
until the rise of modern propositional and predicate logic thanks to Frege, Russell,
and others.

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Metaphysics of Aristotle Theory


Aristotles editors gave the name Metaphysics to his works onfirst philosophy,
either because they went beyond or followed after his physical investigations.
Aristotle begins by sketching the history of philosophy. For Aristotle, philosophy
arose historically after basic necessities were secured. It grew out of a feeling of
curiosity and wonder, to which religious myth gave only provisional satisfaction.
The earliest speculators (i.e. Thales, Anaximenes and Anaximander) were
philosophers of nature. The Pythagoreans succeeded these with mathematical
abstractions. The level of pure thought was reached partly in the Elastic
philosophers (such as Parmenides) and Anaxagoras, but more completely in the
work of Socrates. Socrates contribution was the expression of general conceptions
in the form of definitions, which he arrived at by induction and analogy. For
Aristotle, the subject of metaphysics deals with the first principles of scientific
knowledge and the ultimate conditions of all existence. More specifically, it deals
with existence in its most fundamental state (i.e. beingas being), and the essential
attributes of existence. This can be contrasted with mathematics which deals
with existence in terms of lines or angles, and not existence as it is in itself. In its
universal character, metaphysics superficially resembles dialectics and sophistry.
However, it differs from dialectics which is tentative, and it differs from sophistry
which is pretence of knowledge without the reality.
The axioms of science fall under the consideration of the metaphysician insofar
as they are properties of all existence. Aristotle argues that there are a handful
of universal truths. Against the followers of Heraclitus and Protagoras, Aristotle
defends both the laws of contradiction, and that of excluded middle. He does this
by showing that their denial is suicidal. Carried out to its logical consequences,
the denial of these laws would lead to the sameness of all facts and all assertions.
It would also result in indifference in conduct. As the science of beingas being,
the leading question of Aristotles metaphysics is what is meant by the real or
true substance? Plato tried to solve the same question by positing a universal
and invariable element of knowledge and existence- the forms- as the only real
permanent besides the changing phenomena of the senses. Aristotle attacks Platos
theory of the forms on three different grounds.
First, Aristotle argues, forms are powerless to explainchanges of things and a things
ultimate extinction. Forms are not causes of movement and alteration in the
physical objects of sensation.Second, forms are equally incompetent to explain how
we arrive atknowledge of particular things. For, to have knowledge of a particular
object, it must be knowledge of the substance which is in that thing. However,
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the forms place knowledge outside of particular things. Further, to suppose


that we know particular things better by adding on their general conceptions of
their forms, is about as absurd as to imagine that we can count numbers better
by multiplying them. Finally, if forms were needed to explain our knowledge of
particular objects, then forms must be used to explain our knowledge of objects
of art; however, Platonists do not recognize such forms. Thethird ground of attack
is that the forms simply cannot explain theexistence of particular objects. Plato
contends that forms do not exist in the particular objects which partake in the
forms. However, that substance of a particular thing cannot be separated from
the thing itself. Further, aside from the jargon of participation, Plato does not
explain the relation between forms and particular things. In reality, it is merely
metaphorical to describe the forms as patterns of things; for, what is a genus to one
object is a species to a higher class, the same idea will have to be both a form and a
particular thing at the same time. Finally, on Platos account of the forms, we must
imagine an intermediate link between the form and the particular object, and so
onad infinitum: there must always be a third man between the individual man
and the form of man.
For Aristotle, the form is not something outside the object, but ratherin the varied
phenomena of sense. Real substance, or true being, is not the abstract form, but
rather theconcrete individual thing. Unfortunately, Aristotles theory of substance
is not altogether consistent with itself. In theCategories the notion of substance
tends to be nominalistic (that is, substance is a concept we apply to things). In
the Metaphysics, though, it frequently inclines towards realism (that is, substance
has a real existence in itself). We are also struck by the apparent contradiction in
his claims that science deals with universal concepts, and substance is declared
to be an individual. In any case, substance is for him a merging of matter into
form. The term matter is used by Aristotle in four overlapping senses. First,
it is the underlying structure of changes, particularly changes of growth and of
decay.Secondly, it is the potential which has implicitly the capacity to develop into
reality.Thirdly, it is a kind of stuff without specific qualities and so is indeterminate
and contingent.Fourthly, it is identical with form when it takes on a form in its
actualized and final phase.
The development of potentiality to actuality is one of the most important aspects
of Aristotles philosophy. It was intended to solve the difficulties which earlier
thinkers had raised with reference to the beginnings of existence and the relations
of the one and many. The actual versus potential state of things is explained in
terms of the causes which act on things. There are four causes:

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1.

Material cause, or the elementsout of which an object is created;

2.

Efficient cause, or the meansby which it is created;

3.

Formal cause, or the expression ofwhat it is;

4.

Final cause or the endfor which it is.

5.

Take, for example, a bronze statue. Its material cause is the bronze itself.
Its efficient cause is the sculptor, insofar as he forces the bronze into shape.
The formal cause is the idea of the completed statue. The final cause is the
idea of the statue as itprompts the sculptor to act on the bronze. The final
cause tends to be the same as the formal cause, and both of these can be
subsumed by the efficient cause. Of the four, it is the formal and final
which is the most important, and which most truly gives the explanation
of an object. The final end (purpose or teleology) of a thing is realized in
the full perfection of the object itself, not in our conception of it. Final
cause is thus internal to the nature of the object itself, and not something
we subjectively impose on it.

To Aristotle, God is the first of all substances, the necessary first source of
movement who is himself unmoved. God is a being with everlasting life, and
perfect blessedness, engaged in never-ending contemplation.
Philosophy of Nature
Aristotle sees the universe as a scale lying between the two extremes: form without
matter is on one end, and matter without form is on the other end. The passage of
matter into form must be shown in its various stages in the world of nature. To do
this is the object of Aristotles physics, or philosophy of nature. It is important to
keep in mind that the passage from form to matter within nature is a movement
towards ends or purposes. Everything in nature has its end and function, and
nothing is without its intended purpose. Everywhere we find evidences of design
and rational plan. No doctrine of physics can ignore the fundamental notions
of motion, space, and time. Motion is the passage of matter into form, and it is
of four kinds: (1) motion which affects the substance of a thing, particularly its
starting point and its terminal point; (2) motion which brings about changes in
quality; (3) motion which brings about changes in quantity, by increasing it and
decreasing it; and (4) motion which brings about movement, or change of place.
Of these the last is the most fundamental and important.

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Aristotle rejects the definition of space as the void. Empty space is impossibility.
Hence, too, he disagrees with the view of Plato and the Pythagoreans that the
elements are composed of geometrical figures. Space is defined as the limit of the
surrounding body towards what is surrounded.Time is defined as the measure
of motion in regard to what is earlier and later. It thus depends for its existence
upon motion. If there were no change in the universe, there would be no time.
Since it is the measuring or counting of motion, it also depends for its existence
on a counting mind. If there were no mind to count, there could be no time. As
to the infinite divisibility of space and time, and the paradoxes proposed by Zeno,
Aristotle argues that space and time are potentially divisiblead infinitum, but are
not actually so divided.
After these preliminaries, Aristotle passes to the main subject of physics, the scale
of being. The first thing to notice about this scale is that it is a scale of values. What
is higher on the scale of being is of more worth, because the principle of form is
more advanced in it. Species on this scale are eternally fixed in their place, and
cannot evolve over time. The higher items on the scale are also more organized.
Further, the lower items are inorganic and the higher are organic. The principle
which gives internal organization to the higher or organic items on the scale of
being is life, or what he calls the soul of the organism. Even the human soul is
nothing but the organization of the body. Plants are the lowest forms of life on
the scale, and their souls contain a nutritive element by which it preserves itself.
Animals are above plants on the scale, and their souls contain an appetitive feature
which allows them to have sensations, desires, and thus gives them the ability to
move. The hierarchy of being (creatures) proceeds from animals to humans. The
human soul shares the nutritive element with plants, and the appetitive element
with animals, but also has a rational element which is distinctively our own.
The Soul and Psychology
Soul is defined by Aristotle as the perfect expression or realization of a natural
body. From this definition it follows that there is a close connection between
psychological states, and physiological processes. Body and soul are unified in the
same way that wax and an impression stamped on it are unified. Metaphysicians
before Aristotle discussed the soul abstractly without any regard to the bodily
environment; this, Aristotle believes, was a mistake. At the same time, Aristotle
regards the soul or mind not as the product of the physiological conditions of
the body, but as the truth of the body- the substance in which only the bodily
conditions gain their real meaning.
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The soul manifests its activity in certain faculties or parts which correspond
with the stages of biological development, and are the faculties of nutrition
(peculiar to plants), that of movement (peculiar to animals), and that of reason
(peculiar to humans). These faculties resemble mathematical figures in which the
higher includes the lower, and must be understood not as like actual physical parts,
but like such aspects as convex and concave which we distinguish in the same line.
The mind remains throughout a unity: and it is absurd to speak of it, as Plato did,
as desiring with one part and feeling anger with another. Sense perception is a
faculty of receiving the forms of outward objects independently of the matter of
which they are composed, just as the wax takes on the figure of the seal without the
gold or other metal of which the seal is composed. As the subject of impression,
perception involves a movement and a kind of qualitative change; but perception
is not merely a passive or receptive affection. It in turn acts, and, distinguishing
between the qualities of outward things, becomes a movement of the soul through
the medium of the body.
The objects of the senses may be either (1) special, (such as color is the special
object of sight, and sound of hearing), (2) common, or apprehended by several
senses in combination (such as motion or figure), or (3) incidental or inferential
(such as when from the immediate sensation of white we come to know a person
orobject which is white). There are five special senses. Of these, touch is the most
rudimentary, hearing the most instructive, and sight the most ennobling. The
organ in these senses never act directly, but is affected by some medium such as air.
Even touch, which seems to act by actual contact, probably involves some vehicle
of communication. For Aristotle, the heart is the common or central sense organ.
It recognizes the common qualities which are involved in all particular objects
of sensation. It is, first, the sense which brings us a consciousness of sensation.
Secondly, in one act before the mind, it holds up the objects of our knowledge and
enables us to distinguish between the reports of different senses.
Aristotle defines the imagination as the movement which results upon an actual
sensation. In other words, it is the process by which an impression of the senses is
pictured and retained before the mind, and is accordingly the basis of memory. The
representative pictures which it provides form the materials of reason. Illusions
and dreams are both alike due to an excitement in the organ of sense similar to
that which would be caused by the actual presence of the sensible phenomenon.
Memory is defined as the permanent possession of the sensuous picture as a copy
which represents the object of which it is a picture. Recollection, or the calling
back to mind the residue of memory, depends on the laws which regulate the

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association of our ideas. We trace the associations by starting with the thought of
the object present to us, then considering what is similar, contrary or contiguous.
Reason is the source of the first principles of knowledge. Reason is opposed to
the sense insofar as sensations are restricted and individual, and thought is free
and universal. Also, while the senses deal with the concrete and material aspect of
phenomena, reason deals with the abstract and ideal aspects. But while reason is
in itself the source of general ideas, it is so only potentially. For, it arrives at them
only by a process of development in which it gradually clothes sense in thought,
and unifies and interprets sense-presentations. This work of reason in thinking
beings suggests the question: How can immaterial thought come to receive
material things? It is only possible in virtue of somecommunity between thought
and things. Aristotle recognizes an active reason whichmakes objects of thought.
This is distinguished from passive reason which receives, combines and compares
the objects of thought. Active reason makes the world intelligible, and bestows on
the materials of knowledge those ideas or categories which make them accessible
to thought. This is just as the sun communicates to material objects that light,
without which color would be invisible, and sight would have no object. Hence
reason is the constant support of an intelligible world. While assigning reason to
the soul of humans, Aristotle describes it as coming from without, and almost
seems to identify it with God as the eternal and omnipresent thinker.
Ethics
Ethics, as viewed by Aristotle, is an attempt to find out our chief end or highest
good: an end which he maintains is really final. Though many ends of life are only
means to further ends, our aspirations and desires must have some final object or
pursuit. Such a chief end is universally called happiness. But people mean such
different things by the expression that he finds it necessary to discuss the concept
of nature themselves. For starters, happiness must be based on human nature, and
must begin from the facts of personal experience. Thus, happiness cannot be found
in any abstract or ideal notion, like Platos self-existing good. It must be something
practical and human. It must then be found in the work and life which is unique to
humans. But this is neither the vegetative life we share with plants nor the sensitive
existence which we share with animals. It follows therefore that true happiness lies
in the active life of a rational being or in a perfect realization and outworking of the
true soul and self, continued throughout a lifetime.

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In conclusion Aristotle relied on Plato who sprang up a controversy on two


different views of law. The first view sees law as divine law i.e. God made law which
is incorporated by an individual with privilege access to the divine world. The
second view is man-made law. Aristotle recognized that there were inconsistencies
and tried to resolve these inconsistency. Aristotle believed that law has to be in a
divine form. This makes the law binding on all human and authority. He, like Plato
believed that a central function of law was to compensate for the imperfection
and random judgment of men. He cited an example presented by Platos Socrates.
He said:
People have passions and behave randomly, but reason can corral those
otherwise random impulses together and direct them towards a higher and
more noble purpose.13
The same way it can be said that law can have different aims or interest but it can
be put and channeled to a more divine result. Aristotles view on this was quite
thought provoking.
He who commands that law should rule may thus be regarded as
commanding that God and reason alone should rule; he who commands
that man should adds the character of the beast. Appetite as that character;
and high spirit, too, pervert the holder of office, even then they are the best
of men. Law (as the pure voice of God and reason) may thus be defined as
reason free from all passion14.
Aristotle however said that the Divine nature of law was a perfect law and had
a divine character but that the legislators (those who make law) must get these
divine laws and see how they can implement them and see how the laws will adapt
to the peculiar circumstances of things in their society.

1.1.10 Thomas Aquinas


Thomas Aquinas distinguished four kinds of laws. They are the eternal, natural,
human and divine. Eternal law is the decree of God which governs all creation.
Natural law is the human participation in the eternal law and is discovered by
reason. While natural law is based on what we call the first principle of URO which
is that good to be done and promoted, and evil is to be stopped. This is the principle
behind natural law. Also Human law is law made by government to the citizens of
that country. The government here rules in the interest of the people. They make
13
14

Thaynes Jeffrey. Tha Philosophy of Law Part 4 1932, p. 10


Quaran 94a. 2

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Jurisprudence and Legal Theory

laws and this law according to Aquinas is positive law. Finally Divine laws are laws
revealed to us in the Bible, particularly scriptures and teachings of the Apostles.

1.1.11 Thomas Hobbes


Hobbes view of jurisprudence is more or less founded out of reason. In his treatise
Leviathan (1652) he feels that man must not do that which endangers the existence
of his life or even remove that which preserves his life. He was a social contract
Arian which means that people are ready to sacrifice their rights to government so
as to get social order. He also believes that a society was forced to protect people
from wars brought to it by other well organized societies. And according to him, if
a society is not orderly the peoples life will be
Solitary, poor, nasty, brutish and short.
Hobbes views can be traced to his time during the English civil war and the
Clomwellian dictatorship which has been in place. He believed that absolute
authority must be put in place by the monarch whose subject must obey the law.
According to him this is the basis of a civilized society.

1.1.12 John Finnis and his Natural law Theory


This section examines the Natural law theory as identified by John Finnis who is
a crusader of moral, political and natural law including perhaps, legal philosophy.
That is not to say that legal theory can be adequately identified and pursued
independently of moral and political theory. Nor is it to deny that there are
worthwhile natural law theories much more concerned with foundational issues
in ethics and political theory than with law or legal theory. A sample of such wider
and more foundational theories is the Entry Aquinas Moral, Political, and Legal
Philosophy. In the present Entry, natural law theory is to be taken as shorthand
for natural law theories just insofar as they bear on law and are theories of or about
it. This focus has the important incidental effect that many historically important
differences between natural law theorists can be omitted, differences which pertain
more to the foundations of normativity than to the nature and functions (or the
concept) of positive law.
Legal theorists who present or understand their theories as positivist, or as
instances of legal positivism, take their theories to be opposed to, or at least
clearly distinct from, natural law theory. Natural law theorists, on the other hand,
did not conceive their theories in opposition to, or even as distinct from, legal
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Nature of jurisprudence

positivism. The term positive law was put into wide philosophical circulation
first by Aquinas, and natural law theories like his share, or at least make no effort
to deny, many or virtually all positivist thesesexcept of course the bare thesis
that natural law theories are mistaken. Natural law theory accepts that law can
be considered and spoken of both as a sheer social fact of power and practice,
and as a set of reasons for action that can be and often are sound as reasons and
therefore normative for reasonable people addressed by them. This dual character
of positive law is presupposed by the well-known slogan Unjust laws are not
laws. Properly understood, that slogan indicates why- unless based upon some
skeptical denial that there are any sound reasons for action (a denial which can
be set aside because defending it is self-refuting)positivist opposition to natural
law theories is pointless, that is redundant: what positivists characteristically see
as realities to be affirmed are already affirmed by natural law theory, and what they
characteristically see as illusions to be dispelled are no part of natural law theory.
But because legal theories conceived of by their authors as positivist are, by and
large, dominant in the milieu of those likely to be reading this Entry, it seems
appropriate to refer to those theories along the way, in the hope of overcoming
misunderstandings that have generated some needless debate.
When the accounts of adjudication and judicial reasoning proposed by
contemporary mainstream legal theories are added to those theories accounts
of law, it becomes clear that, at the level of propositions (as distinct from names,
words and formulations), those theories share (though not always without selfcontradiction) the principal theses about law which are proposed by classic
natural law theorists such as Aquinas: (i) that law establishes reasons for action,
(ii) that its rules can and presumptively do create moral obligations that did not
as such exist prior to the positing of the rules, (iii) that that kind of legal-moral
obligation is defeated by a posited rules serious immorality (injustice) and
(iv) that judicial and other paradigmatically legal deliberation, reasoning and
judgment includes, concurrently, both natural (moral) law and (purely) positive
law. Orregos point seems to be confirmed by, e.g., the adjacent entry on Legal
Positivism. Contemporary positivist theories are, it seems, natural law theories,
distinguished from the main body of natural law theory (a) by their denial that
the theory of law (as distinct from the theory or theories of adjudication, judicial
duty, citizens allegiance, etc.) necessarily or most appropriately tackles the related
matters just listed, and accordingly (b) by the incompleteness of their theories
of law, that is, the absence from them (and usually, though not always, from their
accounts of those related matters) of systematic critical attention to the foundations
of the moral and other normative claims that they make or presuppose.
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Jurisprudence and Legal Theory

In short, a natural law theory of (the nature of) law seeks both to give an account
of the law and to answer questions that remain central to understanding law. As
listed by Green (2003) (having observed that No legal philosopher can be only a
legal positivist), these further questions (which legal positivism does not aspire
to answer) are: What kinds of things could possibly count as merits of law?
What role should law play in adjudication? What claim has law on our obedience?
What laws should we have? And should we have law at all? All these questions,
though organized and articulated a little differently, are under consideration in the
present entry.

Enabling positivity: social facts made reasons for action

Basic reasons for action and the need for governmental authority
Political authority as remedy for anarchy, injustice and
impoverishment
Rule of law as remedy for the dangers in having rulers
Ius gentiumius cogensmala in sehuman rights: legal rules and
rights posited because morally necessary parts of any legal system
Purely positive law: determinations and their legal-moral authority
for citizens and judges (facts made reasons for action)
Human persons are not laws creatures but its proper point

Legal principles to remedy defective positive law

Adjudicating between exclusive and inclusive legal positivism

Natural law and (purely) positive law as concurrent dimensions of legal


reasoning

Implications of the rule-of-law need for positivity

Lex iniusta non est lex? Do seriously unjust laws bind? Legally?

Can general theories of law be value-free? Moral-value-free?

Other elements of natural law theory

Intention in action and utterance

Responsibility and punishment


Each legal system is of and for a particular political community.
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Nature of jurisprudence

The fulcrum and central question of natural law theories of law


is: How and why can law and its positing in legislation, judicial
decisions, and customs, give its subjects sound reason for acting in
accordance with it? How can a rules, a judgments, or an institutions
legal (formal, systemic) validity or its efficacy as a social
phenomenon be made authoritative in its subjects deliberations?
The sense and force of these questions, and the main features of the kind of
answer given by natural law theories, can be given a preliminary indication. On
the one hand, natural law theory holds that laws source-based characterits
dependence upon social facts such as legislation, custom or judicially established
precedents- is a fundamental and primary element in laws capacity to advance
the common good, to secure human rights, or to govern with integrity. On the
other hand, the question whether law is of its very nature morally problematic
has from the outset been the subject of consideration by leaders of the tradition.
The first issue that Aquinas takes up about human law in his discussion of law,
is whether human law (positive law) is beneficial- might not do better with
exhortations and warnings, or with judges appointed simply to do justice, or
with wise leaders ruling as they see fit? Classic and leading contemporary texts
of natural law theory treat law as morally problematic, understanding it as a
normally indispensable instrument of great good but one that readily becomes an
instrument of great evil unless its authors steadily and vigilantly make it good by
recognizing and fulfilling their moral duties to do so, both in settling the content of
its rules and principles and in the procedures and institutions by which they make
and administer it. Natural law theories all understand law as a remedy against the
great evils of, on the one side anarchy (lawlessness), and on the other side tyranny.
And one of tyrannys characteristic forms is the co-optation of law as a mask for
fundamentally lawless decisions cloaked in the forms of law and legality.
Basic reasons for action and the need for governmental authority
If one thinks perceptively and carefully about what to pursue or shun, one can
readily understand and assent to practical propositions such as that life and health,
knowledge and harmony with other people are desirable for oneself and anyone
else. The intrinsic desirability of such states of affairs as ones flourishing in life
and health, in knowledge and in friendly relations with others, is articulated in
foundational, underived principles of practical reasoning. Such first principles of
practical reasoning directs one to actions and dispositions and arrangements that
promote such intelligible goods, and that directiveness or normativity is expressed
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Jurisprudence and Legal Theory

by I should or I ought in senses which although truly normative are only


incipiently moral.
The political-theoretical part of natural law theory explains and elaborates the
grounds and proper forms of governmental authority. It explains the similarities
and differences between the practical authority of rulers (including democratic
electors acting as selectors of representatives or as plebiscitary decision-makers)
and the theoretical authority of experts and persons of sound judgment. It shows
the grounds for instituting and accepting practical authority as an almost invariably
necessary means for preventing forms of harm and neglect which, because contrary
to the high-level moral principles (at least as they bear on relationships between
persons), involve injustice. Political theory subsumes, as one of its branches,
legal theory. As legal theory, political theory explains the normal desirability
that governmental authority in political communities be exercised within the
framework of a rule of law and not of men.
Why natural law and Naturalistic fallacy?
What does the mainstream of natural law theory intend by using the word
natural in that name for the theory? The shortest accurate answer is of reason,
as in the law of reason or the requirements of reason. Aquinas, according to
Finnis, is particularly clear and explicit that in this context, natural is predicated
on something, like a law, or a virtue, only when it is predicated in line with reason,
practical reason, and objectivity. In conclusion, John Finnis a political philosopher
saw law in two points of views. He saw law as divine and also followed Austins
view about law which is man-made. There seem to be some level of confusion in
Finnis`s work. He never followed John Austin or Aristotle who saw law in their
own point of view without combining any of its sorts. But modern natural lawyer
such as John Finnis claimed to be positivists, while still arguing that law is a
basically moral creature.

1.1.13 Joseph Raz


Razz view on jurisprudence is similar to that of John Finnis. He believes that law
will co-exist with morality. Razz defends John Austins outlook, but criticized
Harts soft social thesis approach in the authority of law. He believes that law
must have an iota of moral reasoning. He finally argues that law is authority,
identifiable purely through social sources, without reference to moral reasoning.

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Nature of jurisprudence

The paradox of authority can be framed in the following way: if an authority tells
you to do or to believe something, and this is indeed the right thing to do or
believe, then you should do it or believe it simply because it is the right thing to
do or believe; the authority saying so adds nothing. And if the authority tells you
to do or to believe something, and this is in fact the wrong thing to do or believe,
then you should not do it or believe it, simply because it is the wrong thing to do or
believe; in such a case you should refuse to do or believe what the authority says.
The result is that authority seems to make no difference in any case. If the author
ity tells you the right thing, it is redundant, for what is right is right independently
of anything the authority says, and if the authority tells you the wrong thing, then
you should not listen to it. It is never rational to follow an authoritys guidance.
There may be a second order justification for complying with a political author
ity, which is not that a political authority is likely to lay down good laws; this
Hobbsian justification of authority is that a world without any political authority,
the state of nature in which each man is at war with each other, is worse even than
living under the authority of a tyrant, so long as the tyrant does not engage in the
wanton murder of his subjects.
Razs theory aims to avoid both these ways of thinking about authority, i.e. that
following an authoritys guidance is inherently irrational, or that the only justifi
cation of authority is the idea that the monopolization of force under an authority
is better than the alternative of anarchy.
Razs theory of authority of law
Raz begins his exploration of authority by considering the theoretical authority, a
person who is an authority in respect of some kind of knowledge, like a medical
doctor. The medical doctor has an experts understanding of the facts about your
condition that you do not know. It would seem perfectly rational for you to listen
to the doctor and believe what he says about your condition. Indeed, it would be
irrational not to do so: by listening to him you are serving your interests by learning
what is wrong with you and how to deal with it. To ignore the doctor would be
equivalent to ignoring what a medical textbook, which summarizes centuries of
laborious investigations by many people, says. Thus, if you are to act rationally
in the case of your illness, you will have to rely on knowledge and understanding
which you cannot acquire all by yourself (or at least it cannot be done in most
cases because of constraints of time, intelligence, and so on). In this way, listening
to the authority serves your interests in the only way your interests can be served,
and to take advantage of the authority in this way is perfectly rational.
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Jurisprudence and Legal Theory

This is the service conception of authority, which Raz capitalizes on to explain the
rationality of following practical authorities like the law. For if the authority serves
the interests of those people subject to it by solving a problem that they are not
able or likely to solve without the authority then it is obviously not irrational for
them to follow that authority, and this is so even if the authority sometimes gets
it wrong, so long as it is likely to get it right more often than they are themselves.
A doctor mediates between you and the facts which medical science has revealed
and which indicate how to handle your illness-the doctor does not give you a short
lesson in medicine, revealing all those facts to you (though a good doctor tells you
what is wrong with you and gives you some idea of the nature of your condition),
but gives you a prescription. In a similar way, a legislature considers all the reasons
that apply in deciding, say, whether or not, wills should be formalized by being
written, signed, and attested by two witnesses, and then passes a law one way or
another, which everyone must now follow.
This is the essence of what Raz calls the normal justification thesis for an
authority: an authority is justified as such, i.e. is a legitimate authority to which
you should listen, when it actually serves you by mediating between you and the
reasons that apply to you in this helpful way. An authority is justifiably an author
ity for you when you are more likely to act correctly on the balance of reasons that
apply to you if you follow the directives of the authority than if you were to act on
your own assessment of the balance of reasons.
For Raz, the law is most important role as an authority lies in its ability to solve
co-ordination problems, broadly conceived. The most obvious sort of example is
that of our need of a convention as to which side of the road to drive on; neither
the right nor the left is more obviously the right choice, and no general and sus
tained convention may have arisen in practice. By instituting a directive to drive on
the left, the law provides a reason to act which makes a crucial practical difference.
For (if the authority is effective) the authoritys directive will provide a reason for
action which did not previously exist, compliance with which will solve the coordination problem.
To take another, less obvious example, individuals may on the balance of reasons
that apply to them have a moral obligation to contribute money for the provision
of public goods in their community, and by providing a means (a taxing and
spending agency with associated directives governing how its subjects deal with
the agency), the authority can provide a conventional means of doing so. They
will be better able to meet their obligations by this means than if everyone was left

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Nature of jurisprudence

up to himself to decide how much he should contribute, how he should do so, and
so on.
This analysis works even in respect to matters which seem very far from the
setting of standards to solve co-ordination problems. Consider, for example, the
criminal law. The injunction not to murder is not a standard that solves any coordination problem; it is a moral prohibition that applies to everyone regardless
of the behaviour of others, or of the individuals expectations of the behaviour of
others. But the law does more than simply enforce pre-existing, independently
valid moral norms of this kind. The exact extent, scope, and justification of these
norms are controversial and uncertain. While the law, to be legitimate, must by
and large reflect the moral considerations which underpin these moral norms, the
law can and does serve as an authority which solves a co-ordination problem by
specifying in more or less certain terms legal norms which reflect these moral ones.
Further, the law specifies more or less certain remedies or punishments for their
breach, and enforces compliance with these norms to deal with those subjects of
the law who would otherwise disregard these moral norms. By instituting a crim
inal justice system, the law creates a better way of dealing with crime, i.e. dealing
with criminals in a just, fair, and certain manner, than it would have been leaving it
to self h elp, e.g. revenge, feud, vendetta. The co-ordination problem the criminal
justice system addresses is the problem or goal of co-ordinating a communitys
response to crime so as to deal with it in the best way possible.
To refer back to Hart, authorities, through the use of the powers conferred by
secondary rules, are able to create means of dealing with problems of uncertainty,
stasis, and inefficiency that would arise in their absence.
Razs critique of Dworkins theory and soft positivism
Raz claims that all legal systems claim to be authorities, in the sense that all legal
systems require compliance with their edicts, and all claim that they do so legit
imately. Of course, it is another matter entirely whether a legal system is actually
legitimate. But to be a possible legal system at all, a legal system must be able to lay
down rules or orders in a way which can be taken as authoritative directions, and
Raz argues that this undermines Dworkins legal theory as well as the theoretical
position known as soft positivism.
Soft positivism forms a sort of half-way house between Dworkins theory of law
and traditional modern positivism. As we have seen, Dworkin claims that in order
to determine whether a law is valid, particularly in hard cases, will require assess
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Jurisprudence and Legal Theory

ing the moral quality of it in light of a defensible moral-political theory of the law
of that jurisdiction. A traditional positivist, a hard positivist, replies that the law is
determined by something like a rule of recognition, which identifies the law on the
basis of social facts such as whether Parliament passed an Act containing the law,
or whether a judge relied upon it in deciding a case which binds as a precedent.
The soft positivist argues that though a legal system need not incorporate within
its rule of recognition any moral criterion for legal validity, it may do so. So, for
example, if a Bill of Rights introduces a requirement of fair procedure, the soft
positivist would accept that what the law is depends on what the morality of
fairness requires.
Razs difficulty with both Dworkins theory and with soft positivism is that
requiring moral investigation to determine the content of the law is incompatible
with the law serving as an authority. As a practical authority, the law must tell its
subjects in more or less certain terms what they are required to do. It is not serving
their interests as an authority if it just sends them off on a research project. It does
you no good whatsoever for an authority to tell you: Do the right thing! Of course
you want to do that, which is why you have come to the authority in the first place;
what you want the authority to do is tell you what the right thing is, whether it is
how to create a will or how to be relieved of flu.
To put the point more precisely, to be effective at all authorities must mediate
between the reasons which apply to their subjects case and the subject himself.
The medical authority stands between the facts of medicine and his patient and
serves the patient by telling him what to do without making him do a degree in
medicine. Similarly, the law is not an effective authority if it does not tell its sub
jects how to act in more or less straightforward terms, but rather tells the subject
to figure it out himself taking into consideration all the relevant facts and moral
considerations. Doing that is like giving them no guidance at all and whatever you
might call a legal system which gave no guidance or only useless guidance of this
kind; you could not call it an authority. For Raz, the one thing that is true about
law is that it does claim the authority to tell you what to do. Therefore, Raz holds
that whenever judges are entitled to decide a case or formulate a rule on the basis
of moral considerations, they are creating new law, not applying law that already
exists, because the only thing that already exists in such a case are the various
moral considerations that anyone would look at to decide how to act.
This point reminds us of Razs distinction between the deliberative and executive
stages of practical reason. The function of authorities is to carry out the delib
eration for the authorities subjects and produce rules or other standards which
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Nature of jurisprudence

the subjects then execute. In this respect, legal rules are decisions. They are the
decisions of legal authorities which result from their deliberations. For a legal
standard to exist, the law must have decided to guide its subjects to act in one way
rather than another. Telling the subjects to do the deliberation themselves is to
make no decision at all, or rather; it is to abdicate authority in that area of human
activity, which the law of course does in many areas of human life. The law, for
example, refuses to regulate how many Christmas presents you should give.
It is important to note that nothing Raz says here undermines the legitimacy of
courts exercising their discretion to resolve disputes where the law is unsettled
or indeterminate. But when they act in this way, they are not following the law
but deciding the case, in part, for non-legal reasons. The claim that courts act
this way is just Harts claim that courts exercise discretion when there are gaps in
the law. And it is well to recall that the legislature and the courts rely on this, and
defer making up their minds and laying down determinative guidance in an area;
instead, they produce broad or vague directions and leave it to the courts, or to
later courts, to give workable guidance on a case-by-case basis.
Dworkins reply is perfectly in keeping with his own idea of the law: he argues
that Razs concept of authority is too narrow, and fails to encompass the perfectly
sensible view that even such a broad directive act honestly and fairly can be
authoritative. In that the recipient of such a directive can alter his behaviour in an
attempt to conform with it, and consider that whether he has or has not complied
with the directive will turn on whether he has actually acted honestly and fairly,
whatever those two standards actually require (Ronald Dworkin, Thirty Years
On: A Review of Jules Coleman, The Practice of Principle (2002) 115 Harvard L.R.
1655).
The impact of the work of Dworkin and Raz
It is difficult to imagine the philosophy of law over the past 40 years without these
two towering figures. For those whose ultimate interest is in the way in which the
law can be and is moral, Dworkin has consistently provided the most interesting
and novel arguments for the proposition that one essential determinant of legal
validity is moral validity. If anything, Dworkin has become firmer in recent years
in pressing his view that morality is an essential determinant of legal validity. In his
most recent work, Dworkin would treat jurisprudence or legal theory as a branch
of moral philosophy, in effect arguing that the philosophy of law should be regarded
as a philosophy of institutionalized justice. By contrast, on his part, Raz, building
on the work of Hart, has anchored the positivist enterprise on probably the only
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unshakeable foundation, a sound theory of authority and practical reason. It falls


to the twenty-first century to learn whose work better stands the test of time.

1.2 Normative Character of Jurisprudence


Jurisprudence is the study of law, while this is true, it can also be said that
Jurisprudence has a normative character. First of all, a norm is a model or standard
accepted (voluntarily or involuntarily) by society or other large group, against
which society judges someone or something. It can therefore be said that a norm
is the standard for something that is right or wrong. The normative character of
jurisprudence therefore considers laws as it is and what it ought to be.
Hart used these concepts to analyze basic concepts to relate them to the moral
views which were predominant in the community. It is good talk about Criminal
Responsibility Section 24 of the Criminal Code says that subject to the express
provision of this code relating to negligent acts and omissions, a person is not
criminally responsible for an act or omission which occurs independently of the
exercise of his will or for an event which occurs by accident.
During Harts period he wrote on the issue contained in Section 24, which some
writers were attacking, it was the requirement of mens rea in Criminal law. It
allows a person who has committed a serious crime to go free if he has done so by
mistake, accident or as a result of mental disease. Harts argued that the existence
of this, denounces the response to the moral view that a man should not be held
responsible for an act if he could not control his actions. He also said that such
a principle will make us less likely to be punished and sent to jail for acts which
we had no control over. This is a well thought out explanation to the principle
of criminal responsibility. The courts have a responsibility to consider every such
defence brought before it by an accused person. In the case of Nwankwoala vs.
State15, the court held that in criminal trial the court is bound to consider not only
those defences specifically raised by the accused, but also all such evidence and
defences which are favourable to him.
Harts view are quite thought provoking but the issue is, whether the principle that
allows an accused person go free for a murder which was committed independently
of the exercise of his will or for the event of an accident is morally right when
you see that a person has been killed? The answer to this question may sound too
colloquial depending on the side where the questioner has sympathy.

15

N.W.LR (Pt. 1000) 66 3 S.C

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Nature of jurisprudence

Hart also studied the principle of causation and responsibility under the egg
shell principle in his book co-authored with Tony Honore. In order to do this
he tried to clarify first how concept are used in ordinary English language and
how the ordinary use of those concept reflect the way in which people attribute
responsibility. For example, he studied the rules that a defendant must take the
Plaintiff as he finds him and that if unknown to the defendant, the Plaintiff has
an egg-shell skull and died after having received a light knock on the head which
would have been quite insufficient to kill an ordinary person; the defendant will
still be held to be legally responsible for the death. The principle according to Hart
merely allows a person to be held responsible for his acts whether he intended
the death of the deceased or not it seems as if there is a contradiction here. The
principle of criminal responsibility under section 24 of the Criminal Code and Egg
shell principle under the law of tort says two different things. It can be argued that
Harts view on criminal responsibility under section 24 of the criminal code may
however not be sustained. The fact is that a person should not be held responsible
for an act he never intended or committed by accident. It does appear that the egg
shell principle was not thoroughly considered before its adoption as a principle
of law.

1.3 Scope of Jurisprudential Study


Jurisprudential issues that have arisen are too numerous to mention. The scope
of Jurisprudence cannot be limited to what Hart said about morality and law or
what Jeremy Bentham and John Austin said about command and sanction. It
discloses the knowledge of general ideas and principles of all legal systems, no
wonder it is called the eye of the law. Certain fundamental conceptions such as
negligence, liability and mens rea have to be learnt before the provision of the law
relating to them can be understood and jurisprudence teaches these fundamental
conceptions. Jurisprudence covers every subject in law, trains the mind into legal
ways of thought, with proper use of legal term and grammar of the law. The study
of jurisprudence helps law makers to know the meaning of law and how it can be
drafted and codified to avoid absurd interpretation.
Matters are far less clear cut and even if Justice Niki Tobi and Justice Kayode Eso
are in favour of a jurisprudential thesis it does not necessarily mean such views
held by the learned justices are right. As Aquinas once said, in philosophy the
argument of a jurisprudential thesis depends exclusively on the cogency of the
argument which can be produced to support it.

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Many students who have studied jurisprudence also say that the subject is too
difficult, abstract and diverse. At this point it is good to take notice of Benthams
remark that the truth of Jurisprudence is that it grows among thorns, and are not to
be plucked like daisies, by infants as they run. The truth is that Jurisprudence is not
an easy subject. It is difficult to grasp but that does not mean that students should
avoid the subject. Jurisprudence is just too important to be ignored or avoided. A
student who studies jurisprudence should expect many benefits from it.
1. Jurisprudence helps students have a better understanding about
legal concepts and ideas. It inculcates logical thinking in the student,
and sharpens his or her intellect and critical awareness in terms of
better understanding of some enacted laws. For example, in Nigerian
jurisdiction laws like Land Use Act, Electoral Act, Petroleum Act, which
were enacted by the National Assembly are laws which the student will
get better understanding of through jurisprudence.

For instance the Land Use Act was enacted simply to make land an
instrument of trade. Under the law, the state owns the land while the
people are tenants. General Olusegun Obasanjo the Nigerian Head
of State at that time the Act was promulgated in a broadcast stated the
purpose of the Land Use Act as follows:
The main purpose of the Decree is to make land for development
available to all including individuals, corporate bodies, institutions
and governmentsfast economic and social development at all
levels and in all parts of the country is our main consideration.16

This Act can be given different interpretation depending on the


disposition of the person examining and analyzing the Act. To an average
jurisprudential student from the Niger Delta region of Nigeria, the main
aim of the Act is to deprive average local people of the Niger Delta the
opportunity of benefiting maximally from their oil rich land.

2. Jurisprudence also aids students in acquiring the intellectual skill


associated with legal training that ought to be the hallmark of any
university education. While studying jurisprudence students are
sometimes influenced by the views of notable intellectual philosophers
like Karl Marx, Aristotle, Jeremy Bentham and John Austin that inquire,
examines and analyze, rules, regulations or guidelines or laws including
how they are made.
16

Raz Joseph. The Authority of Law (1979) Oxford University Press

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Nature of jurisprudence

3.

Jurisprudence cuts across all subject areas such as Land Law, Law of
Contract, Law of Evidence, Law of Tort, Criminal Law, Marine Law, Law
of Insurance and International Law. The views expressed by the various
schools of thought like the positivists, naturalist, historical, sociological,
Marxist and even the various schools and jurists in Islamic law aids the
appreciation and understanding of law.

4. Jurisprudence also helps students to know the rudiments of moral


arguments. When students read through Harts view on criminal
responsibility or egg shell principle it would give them better
understanding of moral arguments particularly relating it to the society
we live. It therefore aids proper drafting of laws and reform of existing laws.
5.

Finally, jurisprudence helps lawyers, judges and legislators on how to


carry out their task for the best interest of the community as a whole.

1.4 Characteristics of Jurisprudence


1.

Jurisprudence is a practical discipline just as an aero plane is a practical


machine which works only if its designs are based upon sound
aerodynamic theory. The purchaser or user of a plane may not have
much interest in aerodynamic theory but will be most desperate if the
machine cannot in practice fly. The aim of jurisprudence to a draftsman
(who could be a lawyer or legislator) is to make laws which will benefit
significantly the society as a whole.

2.

Jurisprudence concentrates on the rationality of an argument rather than


the personality involved. Even if all the Justices of the Supreme Court are
in favour of a jurisprudential thesis that does not prove that it is correct.
The real authority of a jurisprudential thesis depends exclusively on the
cogency of the argument which can be produced to support it.

3.

Jurisprudence is a cooperative endeavour in which the only way to


contribute something is to build on the works of predecessors. Since
no individual have the mental lucidity or monopoly of knowledge then
they will has to take advantage of previous writings and make further
contributions. After this we will now compare all the views and see the
one which make more sense.

4. Jurisprudence by its nature is a transnational subject; it involves


intellectuals from all over the world i.e. in continent like Europe, Asia,
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Jurisprudence and Legal Theory

Africa and the Middle East. It also brings opinions from different
centuries. For example the time of Aristotle and Plato is not the same at
the time of Jeremy Bentham and John Austin.
5.

Finally, although jurisprudence is the theory and philosophy of law, its


scholars hope to obtain a deeper understanding of the nature of law, legal
reasoning, legal systems and legal institutions. It should be noted that
modern jurisprudence began in 18th century and it focused primarily on
the principles of natural law, civil law and the laws of nations with the
following characteristics as guide.
a. Natural Law: is the idea that there are rational objective limits to
the power of legislative rulers. The foundations of law are accessible
through human reason and it is from these laws of nature that human
created law gain whatever force they have.
b. Legal Positivism: by contrasts to natural law, holds that there is no
necessary connection between law and morality and that the force
of law comes from the basic social facts, although the positivist differ
on what those social facts are and the method of filtering it into
acceptance as law.
c. Legal Realism: is a third theory of jurisprudence argues that
pragmatism or real world practice of law is what actually determines
what law is and the procedure to be adopted by judges, legislators,
lawyers and executives that implements the law.
d. Critical Legal Studies: is a more recent theory of jurisprudence that
has developed since the early 1970s, which is primarily a negative
thesis that law is substantially contradictory and can be best analyzed
as an expression of the policy goals of the dominant social group in
the society.
e. The above views influenced the Marxist theory school and led
Philosopher Ronald Dworkin to advocate for Constructivist theory
of jurisprudence that can be characterized as a middle path between
the Natural law theory and Positivist theory of general jurisprudence.

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Nature of jurisprudence

FURTHER READING/REFERENCES
1. Blacks Law Dictionary 7th edition
2. M.T. Ladan Introduction to Jurisprudence (Classical and Islamic)
3. Rosen F. The Origins of Liberal Utilitarianism, Oxford (1983) P.5870
4. Bentham Jeremy, The Principle of Morals and Legislations
5. Benthams Common Place Book in Works, Vol. X pg 42 quoted in Joseph
Priestly, Utilitarianism, Retrieved 3 March, 2007
6. Joseph Priestly Utilitarianism: 2nd February, 2009
7. Lloyds Introduction to Jurisprudence pg. 337
8. White G. Edward, The Rise and Fall of Oliver Wendell Holmes, University of
Chicago Law Review 1971
9. Frankfurter Felix, Justice Holmes and the Supreme Court, Harvard University
Press 1938.
10. Konefsky Samuel, The Legacy of Holmes and Brandies, A study in the
influence of Ideas, Macmillan, New York 1956
11. Burton David, Oliver Wendell Jnr. Twayne Publishers 1980
12. Howe Mark Dewolfe, Justice Wendell Holmes; Shaping the Years,
Cambridge press, 1963.
13. Lloyds Introduction to Jurisprudence pg. 662
14. Aristotles view on law (series) Philosophy of Law Notes part 4 (of 10)
Jeffrey Thaynes
15. Robin Letwin, On the History of Idea of Law pg. 1
16. Aristotles View On Law (series) Philosophy of Law Notes part 4 (of 10)
Jeffrey Thaynes
17. Louis Posman Ethics (Belmont, C.A Wadsworth Publishing Company, 1995)
18. Joseph Raz, The Authority of Law (1979) Oxford University Press
19. Jurisprudence, J.M. Elegido
20. Paper presented by the University of Lagos titled. The Land Use Act as a
Model for the attainment of Economic Development through land Reform
Presented at the 27th Annual Conference of NALT (1989) at pg. 1-10, Where
the broadcast of the then Head of State was quoted.

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Jurisprudence and Legal Theory

70

Chapter Two

Nature of Law
2.1 Meaning and Functions of Law
As it is consistent with most legal terms, it is difficult to articulate an all-embracing
definition of the term law without erring on the side of economy of words. Having
regard to the wide spectrum of learning covered by the term, we shall however
attempt to define law, its meaning and functions.
Law is a regime that regulates human activities and relations through systematic
application of the force of politically organized society, or through social pressure,
backed by force, in such a society. It proposes a combination of social pressure and
force in a particular society. Under these circumstances a combination of force and
morality of the society will be necessary. All these qualities will only be practical in
a politically organized society.
Law can also be said to be the aggregation of legislation, judicial precedent
and accepted legal principles; the body of authoritative grounds of judicial and
administrative action. These definitions give us specific areas where we can get
laws particularly legislation, judicial precedents and accepted legal principles.
What seem confusing is the accepted legal principles. These principles would
however be principles of law under the received English law in Nigeria. They are
laws accepted not just in Nigeria but all over the world. Their conception date in
Nigeria is limited to 1 January 1900.
Law can be judicial and administrative processes, legal action and proceedings.
When settlement negotiation failed, the people submitted their dispute to the law.
Under this meaning of law, law was limited to what the realist school saw law as i.e.
Law is what the judge says. When parties to a contract agreement fail to reach the
necessary compromise, they will have to end the matter in a court room where the
judge will decide which party will get judgment.
Law can also be statutes and legislation. The constitution is the supreme law of
Nigeria. However there are other legislations which follow this constitution. These
71

legislations must not contradict the constitution or else it would be null and void.
The organs which make this law are the National and State Houses of Assembly
(comprising of the Senate and the House of Representatives for the federation).
Law could also be a general principle, formula, or rules in mathematics, science, or
philosophy, example the law of gravity. These meanings go beyond our view of law.
Law here is seen as a science but our point of discourse sees law as an art.
Laws have been in existence from time immemorial even during the time of Adam
and Eve. God warned Adam not to eat from the forbidden tree. God said unto
them in the Bible:
But as for the tree of the knowledge of good and bad you must not eat
from it, for in the day you eat from it you will positively die.17
However the first written law in the Holy Book was in the book of Exodus. God
gave Moses the Ten Commandments written on stones in tablet form. These laws
were given to Moses who presented it to the Israelites. Leaving the Biblical point
of view, some people consider law as a command. Such commands go with their
required sanction (Like ten years imprisonment); however most legal rules are not
in that form. For instance, rules relating to the making of wills do not command
any person to make a will. A command involves an order given by a traffic warden
or police man to a motorist to stop.
There are people who think also that law is what the judge sitting in a court says.
They argue that since what is written or said by the legislature is not law but what is
interpreted by the judge, then what ever these judges say is law. Admittedly, these
assertions are true to an extent, i.e. there are written rules which are too vague
and therefore taken to the courts for litigation. But most rules of law are seldom
the subject of litigation. Moreover, it is impossible to identify judges except
by reference to law. Therefore, if law is simply what the judges say, it would be
impossible to know it.
People also feel that law has a normative character. This view is however not far
from the truth. Every law has an undertone of morality and to incorporate both in
any legal system will promote the realization of justice.
Finally some see law as an instrument of class domination used by a ruling class to
maintain and advance its interest. This view was canvassed by Karl Marx, who felt
that law was made mainly to maintain a state of class domination by the Bourgeois
class over the proletariat. Marxs view is however just too limited. There are some
17

New World Translation of the Holy Scripture. Genesis 2 vs 20.

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Nature of law

laws which are made not in the interest of the rich. For example if one examines
the Nigerian Criminal Code, the law is of general applicability (i.e. it applies to all
persons). Every section to this law starts with any person. This means that the
Criminal Code does not discriminate between the poor and the rich.
While a particular law may be enacted to correct a social wrong, the law of any
society can be said to always aim at serving the following broad objectives:

18

1.

One of the foremost objectives of law in any society is to maintain law and
order. Every society needs social order, without this normal life activities
cannot go on. The opposite of order is anarchy and chaos. Even during
war situations, there are still some basic laws that must be observed
between the warring parties. This was why humanitarian law was created.
For instance certain rights are accorded to civilian areas which are usually
designated green or neutral zones. These are places where pregnant
women, children, old and aged, injured soldiers and United Nations relief
agencies like the Red Cross stay during armed conflict.

It is good to mention that it is not the absence of law that causes chaos or
anarchy it is the breakdown of that law. Therefore the society must make
sure it enforces its laws without any form of favoritism.

2.

The presence of law in any society ensures justice. However, we should


not make the mistake to assume that the presence of law automatically
brings justice. The makers of the law must ensure that this law brings
justice to the average individual in the society. Thomas Hobbes view
on law is quite important. He argued that mans life in a state of nature
was one of fear and unknown, bottled with selfishness. He says the life
of a man was solitary, poor, nasty, brutish and short. Hobbes view on the
consequences of no law is quite illuminating.

Therefore law and Justice go hand in hand. It would be a mistake to think


that justice is a universal concept which means the same thing to all
people in all ages.18 Justice would mean different things to the rich and
poor, plaintiff and defendant and government and Union leaders. This is
caused by the multiplicity and difference in home background, religious
belief, school training and educational qualification which one is part of.
The solution to this complicated scenario is to make sure that justice that
is done to a party benefit the majority of the society as a whole. The aim

Lord Fuller, Fidelity of Law, 71 Harvard Law Review p.644

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Jurisprudence and Legal Theory

of the law is to create a society that ensures social justice aimed at equality
for the majority of the people in a society.
3.

Law ensures quick and adequate resolution of dispute. Without good


laws the judges will not have a procedure to work with. It is a general
proposition that judges should not make laws. Therefore law making is
necessary to tell the judge who is right and who is wrong. Without law the
society will be in a state of lawlessness; people will then formulate their
version of law thus creating a society filled with chaos and lawlessness.

4.

Law also facilitates orderly change of governments. The 1999 Constitution


Federal Republic of Nigeria is the Supreme law of Nigeria. Its provision is
supreme and has a binding force on all authorities and person throughout
the country. It provides for an orderly change in government from one
civilian administration to another. It says;
The Federal Republic of Nigeria shall not be governed, nor shall any
person or group of persons take control of the government of Nigeria or any
part thereof, except in accordance with the provisions of this constitution.19

19
20

With reference to the section of the Nigerian Constitution quoted above we


can now see that law provide for adequate ways of change of government.
In fact the law protects the state from any form of interference. Without
this law, there would be a change of government without recourse to the
Constitution; not even the people. This was the situation in most African
countries particularly Nigeria where the military took-over government
and suspended the Constitution. This underscores the importance of law
in any country of the world.

5.

Law protects certainty and durability of legal system in a country, one of


the major characteristics of law is its certainty and durability. A law must
exist in written form and must last as long as possible. There should be
procedures laid down in the central law of the country which provides
how this law can be changed.

Similarly, Section 920 provides for the mode of altering the provisions
of the 1999 Constitution. The importance of certainty and durability
cannot be overemphasized. Without this quality, people who control
government will use their influence and power to change the goal post
every time the opposition wants to score.
S.1 (2) CFRN 1999
Constitution of the Federal Republic of Nigeria 1999

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Nature of law

The rich and powerful people in society will simply change laws to suit
their purpose and this can be quite detrimental to the political and
economic development of a country.

6.

The promulgation of laws gives sovereignty to the people. Before laws


were enacted what existed at that time were the secular authorities of
princes, lords, popes and bishops. It was recorded that Pope Alexander
once divided the whole world among his relations. In fact Louis XIV
of France was reported to have said that he was the state.21. Law therefore
shows that the people who made the laws are in control of their country.
This law takes the authority from these despotic rulers and gives the mace
of authority and sovereignty to the people.

7.

Law aids legitimacy of an in-coming president. In a country where laws


are made to guide behaviour of citizens, the legitimacy of a government
will depend on how the laws have been followed; it is not the charisma
of the leader that determines his legitimacy but the obedience to the
laid down law on how such change of government should be done.
The Nigerian Constitution said in part 1 that the Federal Republic of
Nigeria shall not be governed, nor shall any person or group of person
take control of the government of Nigeria or any part thereof, except in
accordance with the provisions of the constitution.22. Also chapter 623of
the Constitution provides how a president can be elected and how he can
be removed from office.

The above provisions are presumably reassertion of the illegality of revolutions or


coup dtat as a means of changing government.21 The penalty for such coups have
prevented such illegal change in governments.
Sanni A. O. in his book, Introduction to Nigerian Legal Method claimed that
legitimacy in modern terms rest not on mere legality but on interpersonal rational
authority, perhaps this may seem to be well thought out. Nowadays legality alone
does not determine legitimacy; the people whom the government acts on their
behalf will show some level of personal identification with the government in
authority. Sanni argues that this explains why people in certain circumstance have
trooped out joyfully to welcome a coup dtat against a democratically elected
government.24
21
22
23
24

Obilade. Nigerian Legal System. 1st Edn.


S.1 (2) Constitution of the Federal Republic of Nigeria 1999.
Constitution of the Federal Republic of Nigeria 1999.
Sanni A.O. Introduction to Nigerian Legal Method. p.16

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Jurisprudence and Legal Theory

In Nigeria when President Umar Musa Yaradua (of blessed memory) was elected
in 2007 as Nigerias President, he admitted that his election was clouded with
controversy and short comings. He stated thus:
we acknowledge that our elections had some short comings. Thankfully,
we have well established legal avenues to redress
He also said that he will set up a panel consisting of Nigerians with unquestionable
authority to review our electoral process and improve the quality of our future
elections. In spite of the short comings in the election of that year, the comment
improved his credibility with the people; underscoring the importance of personal
identification of the people.
Finally, while law aids legitimacy the people of the country still have to play a very
significant part in improving the legitimacy of the government.

2.2 The Relationship between Law and Morality


The meaning of law and morality
Introduction
Among varied and sophisticated social phenomena, law and morals, which serve
as the norms of human behaviour, are closely related yet distinct. It is good to
remember this relationship for effective understanding of the social nature of law.
This study has been in progress from time immemorial, Aristotle and Plato made
some contributions, H.L.A Harts and Jeremy Bentham also made their views
known, even Judges have given important contributions to this study yet there
seem to be no end to this debate.
The important thing to note however is that law sometimes follows moral view
while at other times it does not. The Positivist school of thought would argue
that morality does not have any link with law. However, there seem to be no
straightforward answer to this question. Much of it depends on the disposition of
the judge during trial as most judges have been influenced by Lord Denning (of
blessed memory) who during his time relied on morality or equity where the law
or the common law is likely to occasion injustice.
Much juristic ink has been spilled in trying to define law, what has been the
conclusion is that there is no definite answer to this question what is law because
of the competing theories on the question. However what is important to note, is
that law exists always to ensure social order and the due administration of justice
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Nature of law

in an organized society. However morality can be roughly described as a set of


values common to society, which are normative, specifying the correct course of
action in a situation, and the limits of what society considers acceptable. The most
important point to note about morality in a society is that such values must be
common in a particular society.
While some societies can be said to have common values and norms it would
however be a fallacy for people to think that everybody within the country or in
the world share similar values. Let us take the example of Sunday Okon Williams,
the self styled Bishop who confessed to allegedly killing 110 witch children in
a channel 4 documentary last year, now facing murder charges over the claims
he made in channel 4 television documentaries, Saving Africas witch children
which was broadcast on November 12, 2008. Okon claimed that he had the power
to excise witchcraft spirit from children. Now the question we should ask is why
his own morality is different from the government who arrested him. To him, his
acts were morally intoned with accepted standards of society. This even gave him
the audacity to admit the act on national television. It goes to show that a society
which is made of several people from different ethnic background cannot claim to
have one common sense of morality.
It is important to note that morality should be viewed in a holistic point of view.
For example, in the childrens killing case, all that needs to be done is to go to Akwa
Ibom and get a compilation on views on the topic and see where the pendulum
swings. Whatever you get as the predominant view among the ordinary people of
Akwa Ibom is the moral view on child witch killing.

2.2.1 Theories that talk about the relationship between law and morality
There are diverse theories on the relationship between law and morality. These
theories examine how law upholds moral values in societies. The first theory is
the Confucian theory originating from the Far East (China). The Ancient Chinese
confusion scholars unanimously considered morals to be the goal of law, and the
law to be a tool for morals: the sole role of law is to maintain morals. According
to the Chinese Law Code of the Tang Dynasty, it saw moral as the root of the law,
politics and human behaviour. The Ancient Chinese legal system accepted that
societal moral was the foundation upon which their individual behaviour is based
and deep rooted.
The Chinese philosophy of law and morals regards what is illegal as immoral.
It also believed that if something is immoral then it must be punishable. There
are many cases that have come up on this philosophy. What is also important
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Jurisprudence and Legal Theory

is the combination of civil and criminal cases as one regulation or guidelines


on acceptable and unacceptable conduct. The case below illustrates how both
criminal and civil cases with law and morals were diffused to give a perfect Chinese
legal philosophy.
In a certain case brought before a Chinese magistrate court, two farmers were
Jostling for a small hen. The issue was who owned the hen? The magistrate simply
asked the parties what the hen ate that morning. One said the hen ate beans, the
other said rice. The magistrate ordered that the hens stomach be cut open. They
found that the hen had eaten beans and the farmer who said rice was punished for
been dishonest.
This Chinese case is quite thought provoking, ordinally, this should have been
a civil case but the farmer who said rice was punished. Also the reason for the
punishment was dishonesty which is a moral issue taking the form of law. The
story is a proof of our earlier propositions about the Confucian theory.
The origin of the Chinese confusion theory was linked to the Zhou Dynasty which
created the Zhou Rites. Everything was governed by the rites which combined
religion, morality and law into one body. Even if these rites had not matured into a
written law it still controlled the legal system of China at that time.
The Chinese Confucian Theory clarifies the relationship between law and morality
not only in China but also in other related jurisdiction particularly in the Eastern
Asia. This theory appears to be consistent with most native and customary law
in Nigeria where morality is synonymous with ethics and law in practical terms,
where the distinction between criminal and civil cases are completely blurred or
do not exist at all.
Another important theory to look at is that of the more familiar Natural law school.
One of the earliest philosophers that have made argument on the relationship
of law and morality is Aristotle. Aristotle canvassed that natural law demands
obedience to positive law regardless of contemporary short coming if any. Under
this circumstance it is appropriate to equate Aristotles natural law to social norms
and behaviour acceptable to a society and his conversional law to legality in the
modern scene. The former should be the direct element of the latter while the
latter should be the compelling element of the former. Therefore a combination of
the two will give us a perfect jurisprudential hybrid and to achieve social stability
the latter should take into cognizance the question of efficacy of the law.
Thomas Aquinas, and more recently Professor Lon Fuller formulated another
theory; they argue that there is a higher law (reflected possibly by a moral code)
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Nature of law

to which law must conform. They also believe that one should disregard a law that
conflict with moral code except where doing so will cause social instability. The
question that should come to mind is what is this moral code that is mentioned
above? Aquinas said that moral code is God made law while Fuller laid down criteria
which a legal system must conform to. They include; generality, promulgation,
non-retroactivity of rules, consistency, realism, constancy and congruence.
Jeremy Bentham propounds another theory on the relationship between law and
morality which was later refined by John Stout Mills theory on utilitarianism. He
proposed that moral law was the law that should benefit the most in the society
not the few. He stated that even if the code offended a person but benefited the rest
it would still be better and well preferred but Mill refined this idea. He said that
while this idea was good, people do not have to follow the social norms of their
behaviour. They can act the way they want but their actions must not harm others.
Now the question is what is this act that harms? Edwin Schur in crimes without
victims stated that there are some crimes which do not harm anybody except
the perpetrator himself. For example, crimes like Drug Abuse, Abortion and
homosexuality (which were crimes when he was writing) did not harm anybody
in the society except the perpetrators. He proposed that since criminalizing such
acts only cause such activities to go underground, they should be decriminalized.
However, the problem with his proposition is that it is difficult to say that a person
using drugs and addicted to it is doing it out of his free will.

3.0.2 Professor Harts & Lord Delving


Debate on Law and Morality
Another important debate on Law and Morality was brought to bear in the famous
Hart/Delving debate; following the publication of the Wolfensen`s Report in
1975. Lord Delving was a member of the committee who was a prominent Judge
and a famous academic professor. The committee recommends the legalization of
homosexuality and prostitution on the particularly utilitarian basis that the law
should not intervene in the private lives of citizens or seek to enforce any particular
pattern of human behaviour further than necessary to protect others.
Professor Hart supported that view and stated that legal enforcement of a moral
pattern of behaviour was unnecessary (because a pluralistic society will not
suddenly disintegrate). His reason was that it would prevent the development of

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Jurisprudence and Legal Theory

morality, self determination and interference in individual liberty. His assertion


was heavily influenced by John Stout Mills.
Delving was however, against this view. He felt that the society must ensure that
its laws have basic moral principles particular to it and if not it would lead to
disintegration of that society. He also stated that every society must have a high
moral standard which must be upheld at all times. Also, he stated that moral codes
of a society should be based on right minded people in a society.
Finally he stated that the legislature and the judiciary should be careful in
altering laws concerning morals and that society must have a very high standard
of morals. Hart questions Delvings view on right minded people in society. He
questioned the criteria in deciding and accepting the right minded person. He
argues that Delvings approach was riddled with fear, prejudice, ignorance and
misunderstanding rather than the rational approach necessary for law.
Hart gave 4 reasons for his views:
1.)

If you punish Mr. A, it will harm him, so if his act harms nobody this law
cannot be good.

2.) If we say everybody has a freewill which is our moral right, it would be
wrong for us to interfer in their own freewill.
3.) Giving people such freedom will aid improvements in moral code
through experimentation
4.) If legislation suppresses a persons sexual behavioural pattern, it may
cause him emotional problem.

2.2.3 Where Problems have arisen in the Relationship


between Law and Morality
There has been much philosophical problem between law and morality that the
process of trying to reach a meeting point between the two has caused a lot of
rumbles on the way.
A moral code is dynamic in nature, it changes consistently with time. In the case of
R vs. R, there was a departure from the norm that a man cannot rape his wife. For
emphasis, it should be noted that before this case, there was a general feeling that
a man cannot rape his wife, since she was said to be the property of the husband.
However as time went by things started to change and this principle was changed
by the above case where a man can now be held responsible for raping his wife.
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Nature of law

Another problem that comes up is in the area of embryology. Under this scientific
fold the law has had serious problems trying to keep pace with some moral issues
raised in the field of vitro fertilization, cloning and stem cell research. The solution
to the uncertainty of the law is for the law to try to keep pace with moral code
and react to such changes that may arise. Similarly, it can be argued that the law
makers must be people who understand moral behaviour of the population and
must be able to interpret any changes as soon as possible so that there wont be any
disparity between the law and moral code.
Emile Durkheim also highlighted his view on the problem with law and morals.
He pointed out that although every society does have its own basic moral values,
each individual in life, even in that same society is different. Mr. A and Mr. B might
come from Ibadan town however, their views must not be held to be the same. Jock
Young also pointed out that these attitudes are value judgment based on what an
observer sees as being normal in society, and will, like all morals, change over time.
He further gave an example thus; that what Mr. A might say is morally right Mr. B
might argue otherwise or at best show indifference to As views as it can be seen in
the case of Gillick vs.West Norfolk and Wisbech Area Health Authority.
In Gillicks casse a certain S. Gillick made contraceptives available to girls under
the age of consent under British laws. This generated serious moral conflict in
England. While one party was of the view that it will encourage under aged sex
which was seen as morally reprehensible, the other party felt that under aged sex
still occure whether such contraceptive advice are given or not. They also felt that
it would reduce unwanted pregnancies among young girls. The problem here is
which moral view will the law follow? After a long and protracted argument, the
House of Lords ruled within a narrow margin of 3 2 against Mrs.Gillick, but the
law Lords had inter alia that their decision was based on what was legally right
under British law; rather than moral arguments.

2.3 Where Morality Connects with Law


Much Juristic ink has equally been spilled on this connection. The problem with
law and morality is that morals are just too vague and insatiable that it is better
to concentrate on simple law rather than finding the mens rea or a person whom
everybody knows committed a hideous crime. The question is how can the judge
know if the accused really did not know what he was doing? Even the devil himself
knoweth not the thoughts of man. It is argued that the degree beyond human power
to allocate and that if the law were to refine itself to the more limited sociological
objectives which it is capable of attaining, then much of the present confusion
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Jurisprudence and Legal Theory

relating to the vexed subject of crime and punishment would disappear.2522


However this is not the case in Nigeria, there are many ways in which morality can
arguably be said to connect with law.
In the first place, the idea of criminal responsibility under the Nigerian Criminal
Code makes it clear that law connects moral values. The law says that a man is
not held criminally responsible for acts which happened either by accident or
independently of the exercise of his will. The combination of law and morality
under this Nigerian law shows how morality impinges law. The framers of the
Criminal Code saw the need in this regard and reinforced the moral element with
the legal element so as to make the law well acceptable in the society.
In the case of Nnamah v. State,26 the Court of Appeal, under this, sentenced
the appellant one Michael Onyibor Nnamah to death for stabbing to death one
Kingsley Ifeanyi Abiti. The court also cited section 24 of the Criminal Code of
Nigeria as one of the reasons for its decision.
The court held further that:
The second segment of the Section of the Criminal Code under
consideration provides that a person is not criminally responsible for an
event which occurs by accident. This means that accidental event is one
that was not intended by the actor. It is not foreseen by him and is not
reasonably foreseeable. Upon the evidence adduced and accepted by the
lower court it is clear that the act of stabbing the deceased from the back by
the appellant was not done accidentally.
In the second place, responsibility in law subsumes guilt where there is a likelihood
of its existence. Some circumstances of excuse cause us to adjudge the accused as
not morally implicated in the deed which constitute the offence. For example, if
he says that at the time he committed the crime he was insane27 (say he killed a
police officer thinking he was a foreign soldier engaged in armed invasion of his
country).The summary that can be drawn in this circumstance is that if something
happens and it can be shown that the accused may not have committed the crime,
then the accused did not commit the crime and can plead a defence under the
criminal code.
This clearly shows that the law has made provision available for morality to
impinge upon law. There is however an exception to this principle. It says that a
25
26
27

Barbara Wonton. Diminished Responsibility BS quarterly Law Vol. 1. 76 (1960) p.24


23 (2005) 9 NWLR [Pt. 929] p. 147
Section 28 of the Criminal Code and Section 51 Penal Code.

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Nature of law

person could be convicted for murder if he so acted towards the deceased that a
reasonable man should have realized that the act of the accused, as to foresight of
injury to the deceased was immaterial.28 In the case of State v. Usman the court
held that:
It is only when there is inconsistency in the Prosecutions Evidence such
that it cast reasonable doubt on the guilt of the accused that such an
accused can be given the benefit of doubt.29
And thirdly moral values determine the kind of conviction that would be given
in a criminal case. It is difficult to see how this practice cannot take place. Before
a man can be sentenced to imprisonment or death the judge will look at the
evidence against the accused and see how criminally liable he is before conviction.
If this is not done it undermines the whole basis of criminal responsibility under
the criminal code. The whole idea of criminal responsibility is to see that a man
who is accused of a crime get what best serve the entire community as a whole.
It is very important to note that the consequence of reducing the sense of moral
responsibility remains remarkably greater than the obvious imperfection which
exists in the system.

2.4 Difference and Similarities between Law and Morality


Various academic authors have written on the relationship between law and
morality. The naturalists were the first to make their contributions. They felt
that law and morality are intertwined to form one basic code. Aristotle one of
the foremost Greek political philosophers felt that law and moral value have to
be combined to form a perfect legal code. Plato also assumed that law had to be
based on morality to produce a perfect kind of social living which everybody long
for. Also the confusion Chinese philosophers took their views along this line by
believing that law and morals are the same.
However during the Roman period law was said to be different from morality,
even though no precise theory of differentiation was given. Karl Marx felt that
law and moral are determined by the material conditions of human beings. Law
and morality are linked together according to the Marxist. Though most political

28

29

see Hyam v DPP (1974) 2 All E.R 41, DPP v. Smith (1961) A. C. 291. However the
Criminal Justice Act, 1967, has now reversed this by allowing Evidence of the actual
intention of foresight of the accused
(2005) 1 NWLR (Pt. 906) 80 C.A. See also Onubolu v. Queen (1974) 9 SC 1.

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philosophers felt that law and morality are the same, nevertheless, both terms are
different in terms of form, function and emergence.
In the first place, morals have always been the starting point in early primitive
societies before law ever came into existence. In African traditional communities,
there were no written laws, all that existed were moral values present in traditional
beliefs. For example, in the Yoruba traditional system the Oba and Council of
Chiefs made laws, while other relevant bodies like youth organizations enforced
these laws. These laws were in the form of traditional values and norms which
must be obeyed by every member of the society or else the gods will punish any
dissident. It was only later on that the state which was well organized emerged
that laws came into existence. These laws became recognizable in written form
and the ways of enforcing them were provided by designating people who are well
knowledgeable in this law to enforce them. This shows that moral values existed
before these laws were enacted.
Secondly, legal norms are usually well written down and must be obeyed by the
citizen of that community. Usually institutions like the police enforce the laws as
written. Ignorance of that law is still not an excuse for not obeying it. But the moral
norms are usually evaluated in terms of the benevolence and malevolence, fairness
and unfairness, justice and injustice, honesty and dishonesty of human behaviour.
Thirdly, legal norms are usually well written down and ascertainable. They last over
a long period and can be changed only through a well laid down procedure usually
including public participation. However moral norms change without the actors
even knowing about it. It changes as peoples views change in that society making
it unascertainable and can be an instrument of manipulation since it is not written
down. Legal norms are usually well known by the political actor or even outsiders.
Current societies are driven by well enacted laws which create certainty in all fields
of life. It encourages foreign investment which drives economic development of
a society.
The similar components of Morality and Law can be seen in two major aspects.
Firstly, Morality gives legitimacy to legality. Moral norm give a kind of communal
acceptance to the law, since moral norm and behaviours usually come before a
law is enacted on that moral. The fact remains that for a law to be accepted and
enforced in a society, it needs communal participation by the people. For instance,
the law of Bigamy which makes it a crime for a man to marry more than one wife,
the fact remains that such a law was imported from the United Kingdom which
was a moral norm there. This law cannot be enforceable in Nigeria because in
Nigeria it is morally acceptable for a man to marry more than one wife.
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Nature of law

Secondly, the legal norms have coercive power to maintain and carry out moral
norms. Usually most laws have some element of morals that make them educate
people on what is a morally wrong law like protecting public property against
stealing. Also, protect against corruption not only belong to legal norms but also
to moral norms. Those who violate any of these laws will not only be sentenced to
prison but will be condemned by society. For instance a man that is found to be
corrupt (money laundry) will not only be sentenced to prison but will be rejected
wherever he comes from. People will disassociate themselves from him and no
one will want to be seen with him. Therefore proper use of morals and law in a
society will necessitate for perfect societal living.

2.5 The Relationship between Law and Morality in Nigeria


Generally, every society in the world has its own pattern of behaviour, attitudes
and norms. It is however not different to Nigeria. Over the years, from the period
of the colonization of different parts of the country, moral values have shaped
laws which guided our conduct. The reason why there remains a broad territory
common to law and morality is not far to seek.30
During the colonial period most laws that were accepted in different parts of
Nigeria was the common law and the common law is laws originating from the
United Kingdom which were common to the different British societies. It means
the law developed by the old Common Law Courts of England, namely the Kings
Bench, the Court of Common Plea and the Courts of Exchequer. What was quite
common to the British societies was therefore imported into Nigeria, and since
Nigerian norms and beliefs were different from the British, there was a conflict
between Nigerian local customs and British common law. For instance, the law
of Bigamy which is totally foreign to Nigerian culture has never been accepted by
the average Nigerian Culture even though it is a law. The average Nigerian cultural
belief allows a man to marry more than one wife. That is why most of our Obas,
Igwes and Emirs always have more than one wife. The law of Bigamy therefore has
never been accepted by the average Nigerian ethnic culture.
As a result of this, the British know that they could not just import British law into
Nigeria without taking into cognizance the local customs and beliefs of the local
Nigerian people. It was only in 1973 that this view was put into practice. Section
26 (1) of the High Court laws of Lagos State31 provides that the High Court shall
30
31

Wigwe Chris. The Sharia and the 1999 Federal Republic of Nigeria Constitution.
Journals of Jurisprudence and Contemporary Issues. Vol. 5. 2009
Lagos State of Nigeria Law (1973) Cap. 52.

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observe and enforce the observance of every customary law which is applicable and
is not repugnant to natural justice, equity and good conscience nor incompatible
either directly or by implication with any law for the time being in force.32
These laws were latter permitted all over Nigeria and accepted as local customs
as part of Nigerian law, but such custom must pass through the repugnancy test
existing in S. 26(1) High Court law Lagos State. The first test is that the customary
law is not repugnant to natural justice equity and good conscience. The second is
that it is not incompatible either directly or by implication with any law for the
time being in force. This is a classical example of combination of customary law
with laws. Firstly the law allows the court to enforce customary law. However such
customs must not contradict British laws or existing enacted laws. This recognizes
the existence of bad customs which can harm the people. The reason for bringing
morals and customs into our legal system is that moral condemnation alone does
not constitute a crime, but exerts considerable influence within certain limits. The
political authority determines what conduct ought to be prohibited in the interest
of the state, the citizens and the individuals. It is however important to note that
the moral character referred to in this case is Islam (which is predominant in the
Northern part of Nigeria), Christianity, traditional religion and paganism (which
are predominant to southern Nigeria).
Recently, the Nigerian Courts have expressed their views about law and morality.
Their views have negated the positivist point of view. They say law should be
interpreted and enforced as it is and not as it ought to be. See the case of
Nigerian Bank for Commerce and Industry vs. Standard (Nig.) Engineering
Co. Ltd.33 The court held that:
The order he made became a moral issue in the light of his findings that
the contract was frustrated by the suppliers who were the agents of the
respondents. Courts of law do not pursue moral issues outside the precinct
of the law.
This view was also expressed in the case of Maida vs. Modu where the court also
stated that:

32

33

Nigerian High Court laws: (NN Laws 1963,, Cap, 40), S. 34(1) High Court Law (E.N
Laws 1963, Cap 61), S. 20(1); High Court Law (W.R.N. Laws 1959, Cap 44), 512,
High Court Law 1964 (No. 9 of 1964) (MWN Laws) S. 13(1)
(2002) 8 NWLR [Pt. 768] p. 132.

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Nature of law

Ours is to interpret and apply the law as it is and not as it ought to be until
such a time when a situation emerges where the latter application will be
the order of the day.
From these familiar views, it is settled that Nigerian Judges interpret the law as
it is and do not take any moral consideration into place. If any law exist that lack
some moral efficiency then the Judge should wait until the legislators amend such
a law. There are many crimes in Nigeria that Originate essentially from recognized
morality of the society. Which was why Professor Hart said: we would all agree
that a consensus of moral opinion on certain matter is essential if society is to be worth
living for. That is why murder and theft which are legislated against under the
Nigerian Criminal Code are also seen as socially reprehensible and morally wrong.
Hart further argued that laws against murder and theft and which else would be of
little use if they were not supported by a wisely diffused conviction that what they
forbid is also moral. There are other sections in the Criminal Code which spells
out offences which have some sort of moral connotation. They include offences
like attempted suicide,34 obtaining by false pretence35 and sexual offence against
girls under the age of 13 years and mentally defective.36
In Nigerian legal system not every moral issue is legislated upon, mostly because
Nigeria is a country with more than 250 ethnic groups all having their views on
what is morally right. However, the best solution to this problem is to find moral
values that are mostly common to this divergent tribal group and legislate on them.
This technique was practiced in the United Kingdom. The law which governed the
United Kingdom was called the Common law. The laws were developed by the
judges and it was seen to be common to all British societies and communities at
that time. Under the Nigerian Criminal law system there are some crimes which
are said to be morally unacceptable that have been codified. Typical examples are
rape,37 incest,38 (punishable for 7 years imprisonment), homsexuality39 (punishable
with 3 years imprisonment under Criminal code and 7 years imprisonment under
Penal code). Also, the Penal Code punishes a person who practices sodomy as
a means of livelihood.40 The Nigerian Criminal Code also punishes people who

34
35
36
37
38
39
40

Section 327 Nigerian Criminal Code and section 231 Penal Code
Section 418-419 Nigerian Criminal code.
Section 218-223 Nigerian Criminal Code
Section 282-283 Penal Code, S. 357 Criminal Code.
S. 390 Penal Code
S. 217 Criminal Code and S. 285 Penal Code
S. 405 (2) (e) Penal Code.

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solicit for the purpose of prostitution and also those who make profits from setting
up brothels.
Furthermore, acts like fornication and adultery are punishable under the Penal
Code of Northern Nigeria.41 All these criminal acts have some moral connotation
in virtually every society in the world. This is also very peculiar to Nigeria. While
the number of years a criminal bag may be different and some moral acts may
not be codified in some part and codified in another (adultery and fornication)
however, what is most important is that the society sees such act as morally
reprehensible and should be guarded against.
Recently, there has been claims by Dr. Aguda, and Professor Isabella Okagbue
that morally reprehensible acts like homosexuality (between consenting adult
males which is in private), fornication, prostitution and adultery are private
matters and that the law should not interfere more than it ought to in peoples
private life. That everybody in Nigeria has a right to privacy42 which is guaranteed
under the Constitution and that any law which contradicts such law would be
null and void.43 Thus private matters should be left to Religious and educational
institutions to influence. They also claimed that the Nigerian courts are already
overburdened with serious court cases that this would cause more distraction for
our justice system.
However, M.T. Ladan disagrees with this myopic view (with due respect)
expressed by the two learned authors. He argued that their view that law should
take its hands off morally wrong acts cannot stand the test of time. According to
him since a governments main responsibility is to promulgate laws that safeguard
everything important to the social existence of society (and moral values being
part of that thing and is essential to its existence) then the law must take into
cognizance morals. Furthermore, the main aim of the criminal law is to prevent
harmful acts to the society and since such acts are seen to be harmful even though
done in private then it should not be immune from intervention of the law.
We humbly agree with M.T. Ladan`s view and disagree with Professor Isabella
Okagbue, Dr. Aguda and Professor Harts views. Since our fore fathers decided
to punish such acts like prostitution and adultery, it is not for us to go against
such. Since most laws originate from morally reprehensible acts in society (like
the common law of England), and the aim of the law is to protect society from
anything that is socially endemic, then it would be fair to say that the law should
41
42
43

S. 387-388 Penal Code.


S. 37 CFRN 1999
S. 1(3) CFRN 1999.

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Nature of law

interfere in this immoral acts. A situation where by there is same sex marriage
would destroy the African marriage setting and since the unit of our society is the
family then it would be a calamity to the country as a whole.
Finally though law and morality are different, we cannot say they do not interact at
other times. Every law has an undertone of morality.

2.6 Relationship between Law and Justice


Introduction
The relationship between law and justice is a systemic one. A system that makes
laws must ensure that justice which means fairness shape that law. Every law in a
society must be fair or else that law will not have the legitimacy it desires. If laws
are meant to be just then what can one say about unjust laws? When will a law
be said to be unjust? Since justice to the accused is different from justice to the
prosecution, it is now easy to see where the confusion comes from. The judge in
the society is protected. He must follow laid down generally accepted principles;
he must follow his heart not his head. This subtopic goes into the heart of the
discussion on law and justice. It gives us a detailed discussion on why laws should
be just. It also makes us appreciate and fall in love with justice. We all know that law
and justice are not the same. In fact laws are made sometimes to legalize illegality
i.e. to cause injustice. Take military Decrees in Nigeria that annulled some parts of
the Constitution, so as to legalize a military take over. Such laws we all know are
unjust and enacted with negative intentions. Every society must protect itself from
these laws. Every law must have justice tied to it. No law can exist without justice.
No society can also exist without justice. Justice is justice to the rich, poor and
powerful. Without justice there will be no world worth living.

2.6.1 Meaning of Law and Justice


Too much justice ink has been spilled on what law is, so we will concentrate more
on justice. However, it is good to mention that law is an instrument that regulates
social order.
Justice is the fair and proper administration of laws. It is also the quality of being
just i.e. the administration of law according to prescribed and accepted principles.
Since justice is a moral value endemic in a society, then justice is more a matter
of choice in the sense of subjective or objective value with reference to which

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Jurisprudence and Legal Theory

the justness of a rule of justness of an action or inaction is considered. However,


before we go further, it is good to see what has been said about justice.
Firstly, taking into cognizance what the Buddhist calls the Law of Karma. Let
us consider a statement that a persons actions affect his or her fate in the next
reincarnation. In other words if you do evil you will get evil done to you. Also,
if you do well you will get good things due to you. In Hinduism and Buddhism
beliefs this is justice. Even in our own moral foundation in Nigeria, every moral
ethnic belief, believe in this thesis. Even religious beliefs like Christianity, Islam
and traditional religion, all have this moral foundation rounded about them.
To a law student this is the foundation of justice. He who kills must be killed also; he
who steals must be punished, even Nigerian laws accept this jurisprudential thesis.
In the 2nd Century A.D., Ulpian defined justice as the constant and perpetual will
to allot to every man his due. Ulpians point of view seems to say that when a man
is given what he deserves it means justice. This narrow definition of justice seems
not to be far from the truth. Earlier on we said that justice is a subjective issue.
Now what instrument will be used to measure what is due since what is due in one
society is different from another? These laws were also familiar with the Greeks.
Why such a jurisprudential issue came to the Greeks was on account of the social
disorder, tyranny and internal conflict that bedeviled them in the 5th Century B.C.
that the need for discussion on law and justice came up. Plato accepted that men
are not equal in the society which made him justify the existence of a class society
where all men are not equal. To him all fingers are not equal and men cannot
tamper with this. Justice according to Plato means a man should do his work in
the station of life to which he was called by his capacities. To Plato the world is
not an equal place, while some will be presidents, some will be senators, and still
some will be their drivers. Every member must do his part for a society to work.
According to him some people will be doctors and lawyers while some will be
artisans and soldiers. It is important to mention that Platos narrow conception
rather than solve the problem of how laws can be made just in a society caused
more confusion by accepting an unequal society where a few have and the rest are
left in their misery.
Aristotles thinking of justice is quite different. His beliefs that resources found
in this world should be equally distributed among people, and that the law must
legalize this equal distribution. Aristotle believed that there are two kinds of
justice. They include corrective and distributive justice. While corrective justice
can be said to mean a situation where the judge will put the wronged person in a
state he was before he was wronged, distributive justice mean in Aristotles point of
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Nature of law

view as the equal distribution of offices, rights, honours and goods to the members
of the community according to the principle of proportional equality. Aristotles
view on justice is quite expansive. His two functions on justice help us to know
what justice should do in a society. Aristotle never accepted the status quo (like
Plato) but felt that every law in society must follow the principle of Natural justice.
Herbert Spencer and W. R. Sovleys views are quite thought provoking. While
Herbert felt that justice is not equality but freedom Sovley believed that a
combination of freedom and equality would create a perfect justice system for a
particular society. While Sovley`s views are more comprehensive it is good to say
that other basic right must be accorded with his freedom and equality before a
society can truly have a good justice system.
Nigerian judges have also made their views known on the meaning of justice. The
classical meaning of justice was given in the case of Josiah v. State,44 where a case
of culpable homicide was brought before OPUTA JSC. According to him
justice is not a one way traffic. It is not justice for the appellant only. Justice is not even
a two way traffic. It is really a three way traffic: justice for the appellant accused of
heinous crime of murder, justice for the victim, the murdered man, the deceased whose
blood is crying in heaven for vengeance, and finally justice for the society at large- the
society whose social norms and values had been desecrated and broken by the criminal
act complained of. It is certainly in the interest of justice that the truth of this case should
be known and that if the appellant is properly tried and found guilty, that he should be
punished. That justice seeks only to protect the appellant will not be even handed Justice.
It will not even be justice tempered with mercy.
This classical meaning of justice laid down by Oputa has created a corner stone for
the meaning of justice. In the case of Inakoju v. Adeleke45 the court gave a simple
meaning of justice. It said:
justice in its simplistic content means quality of been just, fairplay
and fairness. It has an element of equality of egalitarianism in its
functional context.
There are basically two legal maxims that give us the technical meaning of justice.
These maxims are written in Latin under our legal system. They are audi alteram
partem (no one should be condemned unheard) and nemo judex in causa sua (you
cannot be a judge in your own cause). Justice demands that no one should be sent
to jail without a well thought out process of litigation where the accused is given
44
45

(1985) 1 NWLR [P125] at 140.


(2007) 4 NWLR [Pt. 633} para C F.

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Jurisprudence and Legal Theory

the time to say his own part of the story. Also a person who is a party to a case
cannot take part in deciding the final outcome of that same case. These two tenets
could be said to be the foundation on which every justice system should lie. In the
case of Fawehinmi v. Legal Practitioners Disciplinary Committee the court
was quite emphatic that a person who sets up a disciplinary committee is by that
effect a party and a judge, and that would go against the tenets of justice.
Finally, it can be seen that much juristic ink has been spilled on the meaning of
justice to the world as a whole, it would now be proper to consider the relationship
between law and justice.

2.6.2 How Justice Impinges Upon Law


It is general knowledge that law and justice are not synonymous. However, the
aim of this write up is not basically about law as an abstract concept (that has been
earlier treated in this chapter), but to law as an instrument of ensuring justice. i.e.
every man must receive what he deserves. One major issue that has come up over
the years is on the accepted view that the majority must always have a say. It is of
general knowledge that a society like ours is a pluralistic society where the choice
of the majority will rule the day. Now what if the views of the majority are different
from that of the minority? What if what is justice to the majority causes injustice
to the minority? It can be said that people in the majority cannot justify seeking
our advantage if that advantage is to be underwritten by the visitation of injustice
on an individual or on a few or on a minority. Take for example the Niger Delta
issue in Nigeria; is it proper for the land that produces these enormous resources
called oil not to benefit from these resources? Every day millions of barrels of
oil are pumped out without anything in terms of development going back to the
people and the land itself. Is it justice for the whole country to take from a small
part of the country without putting back to the land? Laws like the Land Use Act
or the Petroleum Act which gives land to the government and deprives the people
of their land are simply unjust and should be expunged from our law. Everywhere
in the world the people own and control their land but in the Nigerian scenario
the government has taken it upon itself to be unfair to the people. Every unjust law
cannot stand the test of time. So can we say that simply because the whole country
wants the status quo to remain unchanged since they benefit from such system
that causes injustice to the minority that such a law is just? The proper thing is that
such law that cause injustice to the few cannot be accepted as a just law. Laws that
are just must cover not just the majority but the minority as well.

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Nature of law

Another area of discourse is restriction of freedom. Rightly people should live in


a free society where everybody is free to do as he pleases. In fact every person has
freedom of movement,46 Freedom of thought conscience and religion,47 Right to
private and Family life48 and even right to fair hearing49 etc. The fact remains that
these freedoms are not absolute, when it threatens the existence of a society then
it will be restricted. Now how can this be reconciled with justice to the minority?
Is it that the majority will always carry the day? The issue here should not dwell
on minority since they are not necessary poor people in the society but can be few
powerful rich people. To give them absolute freedom will threaten the existence of
the whole society. Such law which restricts some interest must be justified by the
need to protect or advance the common good. Whatever duties that are imposed
by society must be proportionate to the damage that may be reasonably foreseen if
there were no such laws. If these duties are to be strictly applied by the law, the law
must also define what these duties are and the act that can draw these restrictions.
It is submitted that restricting a persons freedom is not injustice if it benefits the
common good and not the majority.
Furthermore, it is good to go into other spheres of life. The issue of justice goes
further than what is good to the majority or minority. One of the major theories
of justice is nemo judex in causa sua meaning you cannot be a judge in your own
case. The principle simply means a party to an action in court cannot choose
the judge to adjudicate on his matter. The Nigerian Electoral Act which gives
the President the power to appoint the Chairman of the Independent National
Electoral Commission (INEC) and the other important commissioners is an
important issue of dispute. The President is not supposed to appoint the head of a
commission which will conduct election that his party will participate in; this law
go against the simple tenets of justice. That is why no election conducted by the
INEC since 1999 has ever been accepted as free and fair.
Another problematic law is the 1999 Constitution of the Federal Republic of
Nigeria. Section 308 prohibits any civil or criminal proceedings to be instituted
or continued or process of any court requiring or compelling the appearance of
a person called the President of Nigeria or the 36 States Governors. This part of
the Constitution goes against the principle of justice in Nigeria. When a man has
so much power the law should lay down guidelines on how he can exercise those

46
47
48
49

S. 41 1999 Constitution FRN


S. 38 1999 Constitution FRN
S. 37 1999 Constitution FRN
S. 36 1999 Constitution FRN

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Jurisprudence and Legal Theory

powers, instead he is given absolute freedom to misuse this power. This section in
itself is unjust.
One other important Legal issue in dispute is the use of interlocutory injunctions
to delay proceedings in court. In Nigerian courts, when public office holders
embezzle public fund and they are charged to court, interlocutory injunctions
are filed by them challenging the jurisdiction of the court causing a stay of
proceedings for years. Even the Chairman of the Economic and Financial Crimes
(EFCC) (Farida Waziri) has testified to this unwholesome practice. These political
thieves are seen walking freely on the street as if they have done no wrong. The
courts have consistently said that although it is a legal right for these lawyers to
challenge the jurisdiction of the court, it should not be used as an instrument for
time wasting. The law must ensure that justice is done without waste of time. In
the case of Seriki v. Aduralere50 the court held that:
It is not right to use the instrumentality of Interlocutory application to
cause unnecessary delay in dispensation of justice. In the instant case, if the
applicants had exercised some patience and allowed the case at the trial
court to be concluded, they could appeal against the main decision and
raise, simultaneously, the interlocutory matter.
If such acts are condoned by the court it means that politicians will continue to
steal public fund causing increase in poverty to the people of Nigeria as a whole.
It is in the interest of the country to see that legal technicalities do not take a
higher position than substantial justice. It is in the interest of the judiciary to see
that justice is done at all times according to the standard society as laid. The law
should ensure that legal technicality do not take superiority over the substantial
law (justice).
Justice also calls that law must give certain amount of discretion to those
administering the law to so administer since the legislature when it makes laws
cannot be expected to conceive all the detailed situations and exigencies that may
arise in the future. This has led to the evolution of the maxims of equity. This maxim
ensures that certain legal principles that ensure justice are achieved at all times.
However this legal leeway must not go contrary to the principles of Natural justice.
It is apt to talk about some foreign laws that have caused some legal rumbles on
the relationship between law and justice. One major law in Australia that has made
such rumbles is the Anti-terrorism law. This law trespasses the notion of Natural
50

(2007) 3 NWLR [Pt. 1026] 127 C. A at p. 146 para D E. see also (Int. Agric Ind. V.
Chikabros. (1990) 1 NWLR [Pt. 124] 70).

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Nature of law

justice, and it is general knowledge that the aim of the law is to secure the general
population from Islamic militants who aim to kill and create fear in the heart of
the ordinary people. Their unconventional tactics which causes grave threat to
public security has caused the people (government) to make laws for the different
security agencies to have special powers to detain interrogate and try suspected
terrorists. Now the issue here is whether such laws give us security and justice.
Legislation empowering the Federal Police to carry out surveillance, or to search
and to seize property can be justified when there are reconcilable ground shown,
provided such powers are precisely targeted on the detection and prevention
of terror and the apprehension of terrorists. But there are other provisions that
have caused some problem, for instance, the power to charge, detain and submit
to interrogation or the power to detain and interrogate without charge. There
should be a way of protecting public safety rather than enacting laws that give
the public power which is an instrument of the executive arm of governmentthe power to control the procedure without any form of check from any other
arm of government. What happens is that the police applies for a warrant for the
interrogation and detention of a suspected terrorist (who may not be one or even
a sympathizer). The applicant must satisfy that there are reasonable grounds for
believing that the warrant will substantially assist the collections of intelligence
that is important in relation to a terrorism offence.51 The laws also subject the
giving of consent to the warrants to the executive judges.52 These are limited to
Federal magistrates and Judges. These are appointees of the minister who are part
of the judiciary but perform executive functions.
This clearly shows that the whole process of application starts with the executive
and ends with them. The principle of separation of power jettisoned in this
situation made room for executive rascality and the detained person is prevented
from seeing this document that is given to the Federal Judge that contains the
reason for the arrest. He can only see the warrant itself.53 The detained person can
also be prevented from seeing his lawyer but sometimes the warrant can allow him
see the lawyer if a government representative is present.54 The detained person
can be prevented from seeing any person including his family except the warrant
permits him to do so.55 The effect of all these sections is that a person can be
detained without knowing why he was detained. He can also be deprived from
51
52
53
54
55

SS 34 E(1) (b), 34 G (1)(b) ASI0 ACT 1979


(We call them Executive Judges because they are appointed by the Executive Arm
of Government)
S. 34 20(4) (b) ASI0 Act 1979
S 34 2B (1) A SI0 Act 1979.
S. 34K(10) ASI0 Act 1979

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Jurisprudence and Legal Theory

seeing a lawyer or from seeing anybody without an opportunity to challenge his


detention in court on the excuse that the reason for such excuse is secret. It is quite
clear to us now that this law goes against the principles of natural justice.
Another similar Act that encourages such injustice is Division 105 of the
Criminal Code of Australia. The code also prevents the detained person from
communication with any person including his lawyers. The warrant will also
be granted by Federal Judges appointed by the minister on the grounds that
the detention will prevent the occurrence of an imminent terrorist act in which
the detained person is suspected on reasonable grounds of being involved or to
preserve evidence of the terrorist act occurring within the previous 28 days.56 The
persons are also prevented from challenging the sufficiency of the reason behind
his detention; so far as the detention order is still in progress.57
Under Australian state laws the state judges can review such arrests but the
warrant of arrest must no longer be in action. Also the police are not mandated
to disclose anything that will jeopardize public security. These wide provisions
can aid executive injustice. The wide term anything will simply put the security
and safety of people in the hands of a (very) few members of the executive arm
of government.
The court usually prevents abuse of executive power by making sure that every
issue brought to it is made public. But the courts are not antipathetic to national
security. The courts are aware that there is need sometimes to disclose certain
information in the interest of public security but there is no reason why such anti
terrorism laws cannot be brought to a real judicial court not an executive court.
But a situation where the reasons for the arrest are not disclosed is to deny the
exercise of natural justice. Experience has shown that whenever unimaginable
powers are conferred, there is a tendency no more likelihood-that the power will
be abused.
In the case of Rumsfeld v. Padilla 542 US (2004) the court held that:
Unconstrained executive detention for the purpose of investigating and
preventing subversive activities is the hallmark of the Star Chamber. Access
to counsel for the purpose of protecting citizen from official mistakes and
mistreatment is the hall mark of due process
It is also good to take note of a statement made by Pastor Niemoller during the
Hitler regime in Germany:
56
57

Criminal Code Act 1995, S 105


Nigerian Criminal Code Act 1995, S 105. 51, 105.52 (5)(b)

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Nature of law

they came first for the communists, and I didnt speak up because I
wasnt a communist. Then they came for the Jews, and I didnt speak up
because I wasnt a Jew. Then they came for the trade unionists, and I didnt
speak because I was a protestant. Then they came for me, and by that time
no one was left to speak up.
Pastor Niemoller thought that he was immune from all the injustice happening
around him. Later on when there was no one else he became the target. People
usually feel that the mere fact they are not Muslims or terrorists or poor they are
immuned from the likely injustice that may occur from the law. The confession by
Pastor Niemoller might likely change their mind. As it was said before justice and
law are not the same. The fact remains that our legislators are not super-humans to
make laws that would not have some sort of congenital defects. But it is the duty of
lawyers or people with legal minds to ensure that such defected laws are rectified.
Another very important issue of discussion (though now has been put to rest)
is Americas detention of alleged Islamic Militants in Guantanamo Bay in Cuba.
America which is supposed to be the citadel of democracy makes laws that give
its Federal Security agencies the power to detain both American and foreign
indigenes without right to judicial review is a very strange issue. The experiences
of Mamdouh and David Hicks show how injustice has been caused to so many
people on the claim that they are Islamic militants. Judicial review is not aimed
at threatening national security but ensuring that government agencies do not go
beyond their powers. During George W. Bushs ( Jnr) presidential era American
CIA were allegedly violating human right of captured Islamic militants. They
were transferred from Western Europe and tortured as a means of acquiring
information from them this is illegal and the captured militants are transferred
to Eastern Europe where their laws are a little bit relaxed. This was done in
collaboration with other European nations who claim to practice be practical
exemplary democracies. A situation where the United States and these European
countries particularly France and Spain collaborate to commit injustice to some
detained subjects is not only a shame but a disgrace to these countries. Democracy
is our priced procession, but we must not be unaware that democracy itself cannot
ensure justice and fairness.
Injustice can also occur where punishment for crimes committed are either
disproportionate or unreasonable with what is accepted in an ordinary society.
Nigeria which is a practical example has in its laws the death sentence. In fact
offences like murder, armed robbery and kidnapping58 attract the death sentence.
58

Just passed in Rivers and Abia States of Nigeria.

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Jurisprudence and Legal Theory

It is understood why Nigerian government decided to give such harsh sentence


for these offences. Take the kidnapping case for instance; it has caused foreign
expatriates to stay away from the Niger Delta area causing Economic down turn and
bad image for the respective states and Nigeria as a whole. But the fact still remains
that the aim of Criminal punishment should be to rehabilitate the individual not
to kill him. Nigeria should follow examples set by Australia. Australia decided long
ago that capital punishment is not to be practiced. It joined the over 132 nations
who acceded to the Second Optional Protocol to the International Convention
on Civil and Political Rights in 1991. The protocol recites that the parties to the
protocol are
Convinced that all measures of abolition of the death penalty should be
considered as progress in the enjoyment of the right to life and the parties
are desirous to undertake.an international commitment to abolish
the death penalty.
But even the Australians have created injustice from this just protocol. Take for
instance the Bali Bombings. In 16 February 2003, the Australian Prime Minister
said that the Bali Bombers found guilty in Indonesia of heinous crimes should
face the penalty for their actions and if the penalty under Indonesian law is death
penalty so be it. Many prominent politicians have supported this view. The fact
that the Australians have called for most of these Asian countries to join the
International Convention that bans capital punishment is a contradiction in itself.
What is more disturbing is the call for the death penalty to be limited to none
Australians alone. This immature and insensitive statement creates an atmosphere
of injustice. Why should the non-Australians face the capital punishment while
the Australians will not? Why should it be said that the execution of an Australian
is barbaric and at the same time say that the execution of non Australians is fair?
Are we saying that Australians are better human beings than people from other
countries? Equality is the hallmark for rule of law. For there to be rule of law there
must be justice and there cannot be justice without equality.
One of the countries that have recently accepted the removal of capital punishment
from their laws is Rwanda. For a country that has witnessed mass killings of more
than 800 000 thousand of its people is a testimony of the peoples resolve to do
justice. In July this year, Louise Arbour, the United Nations Commissioner for
Human Rights lauded the Rwandan decision, saying:
A country that has suffered the ultimate crime and whose people thirst
for justice is still far from quenched has decided to forego sanction that

98

Nature of law

should have no place in any society that claims to value human right and
the inviolability of the person.
Nigeria should follow the example laid by Rwanda. The fact is that capital
punishment will not only cause trauma to the convict and his family but also to
the society as a whole. Every society should respect the dignity of human life. It
should refuse the temptation of killing a fly with a hammer.
From our analysis so far it can be seen that there exist a corresponding relationship
between law and justice. A simple law cannot ensure justice but the people must
ensure that justice is done when implementing the law. Society should not act like
pastor Niemoller who turned a blind eye. What should be kept in mind at all times
is that injustice no matter how minute can grow into a monster that can consume
the entire society.
Bias
Bias is a feeling in favour of one side in a dispute or argument, resulting in the
likelihood that the court so influenced will be unable to hold an even scale in the
matter before it. It can be said to be a feeling or inclination of suspicion that a judge
will decide a case not on the weight of evidence before him but on other matters,
which may be social, religious, economic and political. In the case of Yakubu vs.
State the court was of the view that bias means
in relation to any one acting in a judicial Capacity, conjures up the
idea of anything which Tends or may be regarded as tending to cause that
Person to decide a case otherwise than on the Evidence.
When other factors influence a judge apart from the weight of evidence brought
before him in a court of law that judge will be said to have decided the case
wrongly. These acts are not inconceivable in a court of law since those who decide
cases are human beings, who have their own likes and dislikes on certain matters
of National discourse.

2.6.3 Basis of Allegation of Bias


One cannot allege bias against another unless there is an event from which the
allegation stems. The concept of bias cannot certainly exist in a vacuum, but must
have a basis from an event. Therefore, it cannot be meaningful to merely allege bias
without at the same time alleging some circumstances from which one can infer

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Jurisprudence and Legal Theory

it.59 In the Yakubu`s case the appellant was charged with the offence of conspiracy,
attempted murder and causing grievous bodily harm contrary to various provisions
of the Criminal Code Law of Lagos State. During the trial the appellant filed an
application praying the trial court to decline further adjudication in the trial on the
grounds of bias constituting antagonism against him or favoritism in favour of the
prosecution. Reasons were given for the allegation. They are:
1.)

That the trial judge stated that it can accept service of court process from
the appellant when the prosecution had not said so.

2.) That the trial judge misrepresented submission of the appellants counsel
in an earlier ruling.
The reasons given by the appellant for the allegation of bias are as given above. If
the appellant has alleged bias without giving reasons for such bias he would be
considered by the court as a joker and his allegation would be struck out. The
reasons given by the appellant must be cogent and convincing.
Proof of Bias
Bias must be sufficiently proved and should not be based on mere conjunctive
speculation, mere accusation, or the subjective view of the party alleging or his
counsel. Thus, the various judicial authorities requiring strict measures of proof
are very much desirous for the purpose of safeguarding the integrity of judges and
forestalling unfounded allegations.60 A situation where a party to a case makes
wild allegation without reasonable proof will not be entertained by the court.
The allegation must be seen from a point of view of a reasonable man not from
a simple subjective feeling of a man with wild imaginations. There is wisdom in
this expectation, especially with the nature of the allegation impugning on the
integrity and wholesome personality of the judge thus portraying and bringing
the entire administration of justice into disrepute and question.61

59
60
61

(2007) 9 NWLR [Pt. 1038] pg. 24, para 5 A B.


Oyedeji v. Akinyele (2002) 3 NWLR [Pt.755] 586
see Kenon v. Tekam (2001) 14 NWLR [Pt. 7] 300 and Akon v. Abuh (1988) 3 NWLR
[Pt. 85] 690.

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Nature of law

2.6.4 Test for determining whether there was Bias in a case


The courts have a difficult task to determine whether the judge or judicial officer
was actually capable of the allegations of bias. Three tests were given in order to
determine whether there was bias in a case:
1.) Where the persons ought not to participate or appear to participate in
appeal against his own decision or act; or
2.) Where the person appears to be acting as both prosecutor and judge; or
3.) Where the person has already indicated partisanship by expressing
opinions antagonistic or unfavourable to the parties before him, or has
made known his views about the merits of the very issue or issues of a
similar nature in such a way as to suggest prejudgment or because of his
personal relationship with a party or for other reasons.
It is good to note Ogunbiyi`s ( J.C.A.) Statement in Yakubu v. State.62 He said:
The case at hand in my humble opinion therefore is Very much
distinguishable with that of Abiola Under reference. The submission by
the learned Appellants counsel in that regard does not therefore hold. On
the totality of all the issues as consolidated, they do not, with the greatest
respect to the Appellants counsel, constitute or even indicate any bias or
likelihood of same as alleged. Rather, it is my view that the eventual effect
of such complainants would serve repugnant to the well being and proper
functioning of our judicial system where beliefs which are unfounded and
unguarded should not be allowed to thrive. Certainly and caution ought to
be applied. This is not however to say that genuine and founded complaint
of bias are to be suppressed. To do this would certainly undermine the
purport of the constitutional provision relating to fair hearing.
With the determination thus arrived at, I hold the firm view that the
entire allegation of bias against the Learned trial judge are unfounded and
without basis in the absence of proof thereof. In the result, to disqualify
the learned trial judge in the circumstance would be akin to allowing the
appellant to dictate the tune of the piper.
He should not be allowed to have his way because, doing so would
encourage and serve a dangerous precedent, which would have a serious
and negative effects on our judicial system. The appellant is crying wolf
62

Yakubu vs. State pg. 27 28.

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Jurisprudence and Legal Theory

where there is none. He should only be allowed to be heard if and only if the
cry is justifiable. In the circumstance at hand, there is no reason justifying
his cause. Rather he is therefore condemned in very strong terms especially
as he is seeking to negate the ethics of the legal profession and the oath of
office sworn to by the learned judge in question.

2.6.5 Effect of Bias in Relation to Fair Hearing


When a judge in a case is biased against a party, the party loses one of his inalienable
rights guaranteed by the Constitution.63 Section 36 simply says that:
In the determination of his civil rights and obligations, including any
question or determination by or against any government or authority,
a person shall be entitled to a fair hearing within a reasonable time by
a court or other tribunals established by law and constituted in such a
manner as to secure its independence and impartiality.
The victim of such bias is expected to raise objection challenging the neutrality of
the judge. The trial judge is expected (if the allegation is well founded) to refuse
taking the matter further. In Okoebor vs. Police Council,64 the court was of the
view that:
If a party raises objection as to the likelihood of Bias on the part of a
judge trying a case, it is safer and more in the interest of justice for the
judge to refuse taking the matter, unless it is clear that the party is raising
the objection qua objection lacking merit and is designed to delay the court
process or an outright abuse of the judicial process. In the instant case,
the objection raised on the competence of the trial judge to hear the case
on ground of bias was without merit and was designed to delay the court
process as the withdrawal of the judge would result to the case being heard
de novo.

2.6.6 Administrative bodies and their duty to apply Natural justice


An administrative body is an agency set up by government through Act of Parliament
whose responsibility it is to perform certain acts on behalf of government. Many
agencies have been set up by government. Such include Independent National
Electoral Commission (INEC), West African Examination Council (WAEC),
Economic and Financial Crimes Commission (EFCC), Power Holding Company
63
64

1999 Constitution Federal Republic of Nigeria


(2003) 12 NWLR (Pt. 834) 444.

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Nature of law

of Nigeria (PHCN), Nigerian National Petroleum Cooperation and National Drug


Law Enforcement Agency (NDLEA).
Each agency must perform its responsibility in the most efficient way so as to
perform its responsibility. For instance, the NDLEA must act as a Drug police
and ensure that dangerous drugs like cocaine and cannabis65 are not imported or
produced in the country.
Also the INEC has the responsibility of conducting elections and announcing
results all over the Federal Republic of Nigeria. What is however significant
about these agencies is that they are usually manned by people appointed by
the government.
Each of these governmental agencies must prepare internal and fair administrative
judicial panel which primary responsibility will be to handle internal conflict that
may arise. In the case of WAEC vs. Akinkunmi66 the court per Galadima ( J.C.A)
held that:
The West African Examination Council the appellant in this case, is an
administrative body established by statute to conduct Examinations and
award certificates and Diplomas. Consequently, its actions and decisions
are subject to the judicial review
Also in the case of Ndukwe vs. LPDC67 the court was quite clear when it held that:
By virtue of Rule 9 of the Legal Practitioners Disciplinary Committee
Rules, the Legal Practitioners Disciplinary Committee poses the capacity
to determine its procedure provided such procedures meet the demand of
natural justice and is in accordance with the Evidence Act.
This proves that not only are administrative bodies appointed by government
through Acts of parliament but they must also conduct their internal affairs in
accordance with the principles of Natural Justice. In the WAEC case Mr. Akinkunmi
sat for the May/June 1992 West African Senior School Certificate Examination
conducted by the appellant. In September, 1992 when the examination results
were released, the respondent (Mr. Akinkunmi) obtained two distinctions, four
credits and a pass grade. By this feat, the respondent secured admission into the
University of Ilorin in November 1992. As part of his final screening preparatory
to his graduation from the university, the respondent was obliged to present his
65
66
67

Except by prescription from a licensed Medical practitioner.


(2002) 7 NWLR [Pt. 766] pg. 327 at 342 para E F.
(2007) 5 NWLR [Pt. 1026] pg. 1

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Jurisprudence and Legal Theory

Senior School Certificate Examination statement of result, amongst other papers.


He later found out that WAEC had cancelled the exam he did six months after.
Consequently, he was unable to graduate in 1997 therefore the respondent sued
WAEC seeking the High Court to enforce his fundamental rights to fair hearing

and a declaration to revalidate his cancelled result. The court granted his plea. The
appellant appealed but their appeal was dismissed. The courts were of the view
that the administrative body was under the obligation to give the respondent the
opportunity to defend himself since he was accused of examination malpractice.
The court said this was not done. The court submitted in page 341 of the case that:
I must say that when taking disciplinary action against a candidate
accused of examination malpractice the appellant which is acting in a
quasi-judicial capacity is bound to observe the rules of Natural Justice
expressed in latin maxim audi alteram partem and nemo judex debet
esse in causa sua. The rules have been enshrined in section 36(1) of the
1999 Constitution and Article 7 of the African Charter.
Also in the case of Ndukwe vs. Legal Practitioners Disciplinary Committee
(supra), one Mr. Ndukwe a legal practitioner was accused of withholding the
money of his client a Cameroonian for 2 years. He was found guilty for infamous
conduct in the legal profession and was suspended with a direction that the
appellant should not engage in practice as a legal practitioner for a period of one
year. He appealed to the Supreme Court which dismissed his appeal. The court
finally held that the decision of the Disciplinary Committee was fair and that its
actions was in accordance with the principle of fair hearing guaranteed in section
36 of the 1999 Constitution of the Federal Republic of Nigeria.

2.6.7 The Right of a Party to be Heard before Final


Determination of a case in court
One of the cardinal principles of the rules of fair hearing is the principle of
audi alteram partem meaning duty on the adjudicating authority to accord the
parties opportunity of being heard before taking adverse decision against them.
The need for the inculcation of these principles in most body of laws cannot be
overestimated. The main section that protects each citizen the right to fair hearing
is Section 36 1999 Constitution. It says;
a person shall be entitled to a fair hearing within a reasonable time
by a court or other tribunal established by law and constituted in such a
manner as to secure its independence and impartiality.
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Nature of law

Every individual has a right to fair hearing. No matter how culpable an accused
person looks, whether he was caught at the very act of armed robbery or killing
he must still be given the opportunity to be heard in a properly constituted court
of law.
Reasoning in the Biblical point of view, God gave Adam and Eve the opportunity
to defend themselves even when He was aware that they had sinned and eaten the
forbidden fruit he warned them not to eat. This shows that even God almighty the
ultimate creator saw the need to be fair at all times when dealing with a person
(even the one He created). He asked Adam why he had eaten from the tree He told
him not to eat, Adam said;
The woman whom you gave to be with me, She gave me fruits from the
tree and so I eat.68
Also God asked Eve what she had done to make her feel she was naked. To this
she replied:
The serpent it deceived me and so I ate.69
To an average jurisprudence student what should matter to him is not whether the
excuses given for such disobedience was justifiable but was that they were given
the opportunity to state what happened. In the case of Lebile v. Reg. Trustees of
C & S, the court was of the view that:
It is a fundamental principle of Natural Justice that a person must be
given an opportunity of a hearing, which hearing must be fair, before being
deprived of his liberty or property or right. In the instant case, the refusal by
the trial court to pronounce on the ownership of Igbokoda land as between
the community and the local government or between the community and
Lebile family could not be faulted, since, in the first place, there was no
relief before the trial court seeking a declaration that would in effect put
at risk the right of the community of Igbokoda to their land or the right of
the local government to issue certificate of customary right of occupancy.
Secondly, even if there has been such a relief the court would have no
jurisdiction to make a decision in the present circumstances to adversely
affect such a right without the community and the local government being
made parties.70
68
69
70

Genesis Chapter 3 vs 12. New World Translation of Holy Scripture.


Genesis Chapter 3 vs 13. New World Translation of Holy Scripture.
(2003) 2 NWLR [Pt. 804] pg. 399 at 424 para. D H.

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Jurisprudence and Legal Theory

The court also made its view known in the case of Yakaje v. Haire where it said it
is a denial of fair hearing for a trial court to make an order affecting the interest
of a party without putting the party on notice and hearing him before such an
order is made. In the instant case, the trial court erred in granting the respondents
prayers without hearing or offering the appellant opportunity to be heard. The
court further said that it was ironic that the trial court succumbed to such travesty
of hearing that led to his setting aside the decision of the chief magistrates court. It
is therefore surprising why he himself should fall into the same trap or pit fall.71 The
courts have been very strict to enforce a persons Fundamental Rights provided
for in Chapter IV of the Constitution whenever there is a violation or threat of
that right by institutions of government. In the Yakajes case the court was of the
view that:
Courts have been exhorted to take seriously the issue of breach of the
provisions of chapter IV of the constitution even though such issues do
not arise from any of the adumbrated grounds contained in the relevant
memorandum of appeal. In the instant case, even though the appellant
filled a lone ground of appeal but framed two issues there from; the second
issue raised an issue of fundamental right to fair hearing which is in accord
with the natural justice principle of audi alteram partem as encapsulated
in chapter IV of the Constitution.72

2.6.8 Duty of An Employer of Labour to Act in Accordance


with the Principles of Natural Justice
The principle of Natural Justice applied not only to administrative panels or
judicial courts but also to master (employer) and servant (employee) relationship.
Generally, an employer is under the responsibility to treat his employee according
to the principles of natural justice. Just as the employer has rights the same way the
employee has rights too. There are certain terms which are written in a contract
of employment and the employers and employee must make sure they respect
these terms. If there is any breach in these fundamental terms then the contract
would be seen to have been repudiated. But at common law a master is capable of
terminating his servants employment for no or any reason and at any time during
the contract. In the case of Nigerian Airways Ltd. vs. Okutubo the court expressed
71
72

(2003) 10 NWLR [Pt. 828] pg. 270 at 282 para B D


pg. 281, para B C, see also the case of Nnamdi Azikiwe University vs. Nwafor (1999)
1 NWLR [Pt. 585] 116.

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Nature of law

its opinion on the power of the employer to terminate contract of employment.


It said:
At common law, a master can terminate his servants contract of
employment at any time and for any reason or for no reason at all. But if
the dismissal is in breach of a fundamental term of the contract, the servant
has to appreciate that the contract stands repudiated whether rightly
or wrongly and that his remedy for the breach lies in suing for wrongful
termination of his contract of employment although he must mitigate his
loss so far as he reasonably can.73
Although an employee is not obliged at common law to follow any particular
mode in summarily dismissing his servant, there are however certain exceptions in
which non compliance will lead to serious consequence. The exceptions include:1.

Where the contract has been made on how a dismissal is to be done


whenever it occurs. A master must follow the procedures or else the
servant can sue him for non compliance with laid down procedures
which could mean award of damages to the servant.

2.

Where a statutes has been enacted which regulate the appointment and
dismissal of the employee. The relationship has what is called statutory
flavour. If the employer violates these statutes then the employee can sue
him for damages.

3.

Also as regards people holding public office the rules of natural justice
must be followed when dismissing these public officials.

4.

Finally where an employee is dismissed, his rights as a member of a


trade union as well as an employee of the union may be affected by the
dismissal, as the courts have always applied the rules of natural justice
to the expulsion of the trade union members; a dismissed trade union
employee may be entitled to the benefits of the rule of Natural Justice.
The employee is entitled to damages for breach of contract.74

The above listed exceptions are the reasons why an employer must tread with
caution when disengaging his employee. In the Okutubos case the Respondent
claimed he was wrongfully dismissed by the Appellant (Nigerian Airways). At
the trial court the court granted his claim but the Supreme Court allowed the
appeal and held that since the respondent could not be categorized under any of
73
74

(2002) 15 NWLR [Pt. 790] pg.376 at 393, paras. A C.


(2002) 15 NWLR [Pt. 790] pg. 399.

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Jurisprudence and Legal Theory

the exceptions given above and that proper notice had be given by the appellant
which was a condition for determination of the contract then the employer had
not committed any wrong by the dismissal. The apex court held:
The allegation that the termination was against Natural Justice does not
hold water since the instant contract of employment falls within the first
of the four exceptions mentioned herein and therefore determinable by
proper notice in this case by one month notice or payment of a months
salary in lieu as shown in exhibits F and L. On the facts of the case
there is no basis to hear from the respondent in the situation as no wrong
doing was alleged against him.75
The conclusion that can be drawn from this is that though the employer can
terminate his employee`s contract of service for any reason or cause and at any
time, he must make sure that he acts in such a way that the law of Natural Justice
will not find him wanting.

2.7 Relationship between Law and Religion


Introduction
Religious beliefs are part of mankind which is peculiar to different groups of
people. It can also be an individual thing where by a person chooses what he
believes in. However what is most important in this write up is how religion affects
law. Critical questions to be asked are: what influence does religion have on law? Is
law a religion? Is there any difference between norms and religion? What if there is
a conflict between the law and the religion of the people?
These questions may not be given categorical answers but what is most important
is the need for deep critical thinking. The world today is polarized with deep
religious conflict between Islam and Christianity. Muslim countries (mostly from
the East) have imputed Islamic laws into their corpus juris creating no room for
neutrality and extremity is the order of the day, while the west have created a
neutral society where every religion is accommodated. It would be seen how these
countries have formulated their laws taking into cognizance religion.
Finally many other related issues may arise. Issues like religious extremism, and
how countries in Western Europe (including America) have dealt with it.

75

Per Chukwuma-Eneh, JCA at pg. 399 paras B C.

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Nature of law

2.7.1 What is law and what is Religion


Religion is a system of faith and worship usually involving belief in a supreme
being and usually containing a moral or ethical code; especially such a system
recognized and practiced by a particular church, sect, or denomination. Religion
can also be a belief in or worship of a supernatural power or powers considered
to be divine or to have control of human destiny. We can still say that religion is a
classical base of attitudes, behaviour and norms which are well defined of human
conduct, which ultimate aim is to achieve the greater good of the society.
It seems as if these meanings have something in common. They all seem to be
saying it is a belief. Religion in itself is a belief in God who could be called in
different ways. The Ibos call him Chineke, the Yorubas call him Eledumare and the
Hausas call him Allah. However what is important is that this spirit is seen as a
supreme God which everybody must recognize.
Religion could also be moral or ethical codes that guide human behaviour and
conduct. The Bible contains the Ten Commandments which laws down what we
should not do. Statements like thou shall not steal or kill are familiar. The Bible
also tells us to forgive our enemies and even went as far as telling us to forgive 70 x
7 times giving us the impression that our forgiveness should be continuous.
Religion is also well written down in scriptures and this makes them easily
accessible to future generation. Islam and Christianity are well described in the
Holy Quran and the Bible respectively. African traditional religions are not usually
written down. The Yorubas believe that Oduduwa was sent by God while the Ibos
believe that Amadioha (God of Thunder) is their God. Notwithstanding this
fact, different generations have passed the belief from one generation to another
causing some level of variations, as a result of its not being in written form. It is
however important to note that these Traditional African beliefs are now well
documented in books by different authors. However, they are not comparable to
religions like Islam and Christianity which have been written for hundreds of years
ago. No wonder African Traditional Religion is no longer as popular and widely
acceptable as Christianity and Islam.
This brings us to the issue of religion and its diversity. African traditional religions
are as diverse as African tribe. There are over 250 tribes in Nigeria; all believe in
different gods. Some sects worship thunder, others worship sculptures, others
worship animals etc. The dominant religions are basically Catholics, Christians,
Hindus and Muslims.

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It is also good to mention some other religions dominant in Asia, particularly India
where snakes are worshiped or even women sculptures. The Chinese, Japanese,
Koreans and Taiwanese also worship in shrines and temples. One significant fact
which should not be left out in this topic is the issue of the uniqueness Africans
have brought to the generally accepted religions (Christianity and Islam). Research
has shown that Christianity and Islam have blended with African unique cultures
talking in terms of the practice of these religions. In terms of Christianity, Africa
has brought its unique ways of praising God whereby when praise and worship
is going on in a church or place of worship, everybody dances according to his
own cultural way of dancing. These religions particularly Christianity have been
interpreted in Yoruba Language. Another important fact to know is that these
religions are taught in indigenous African languages. This delusion has caused
astronomical growth of these religions causing sometimes their acceptance by a
large majority of African population.
Finally religions ultimate aim is for common good. No religion aim for community
disharmony or strife. Whether it is Islam or Christianity, Hindu or African,
Traditional Religions they all aim at societal harmony and collective development
of the people whatever tribe or race. We can therefore conclude that religion is an
agent of social harmony.

2.7.2 The influence of Religion on Law


There are some non legal factors that influence the decision of the court in most
cases. The cultural, social and religious background of most judicial officers in
most societies influence their idiosyncratic acidity. For example, during the
colonial rule in Nigeria, the repugnancy tests on validity of customs were based on
the perception of expatriate judges. Similarly laws at that time were crafted in line
with western culture that was in itself dominated by the missionaries who basically
were Christians. Also, the Islamic law is deep rooted in Islam as a faith. Religion
has a lot of influence on law.

2.7.3 Religion and Freedom


During ancient times, freedom of religion never existed. In fact, in the past, many
societies were homogeneous in their religious belief. These religions prescribed
the pattern of behaviour in society and every single individual must follow suit.
This one-sided approach was broken in the sixteenth century because of the
Protestant Reformation. The political authorities still tried to ensure a one religious
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society by compulsion. But religion engages the deepest passion of beliefs and it
turns out that many people were quite ready to suffer and even die rather than
abandon their religious beliefs. This led to religious strife and wars causing
economic and political instability. As a result of this unfortunate situation, certain
recommendations came up to cure the anomaly. However these recommendations
came from people in the society generally and it went through many refinements
to give them what they had. They include:
1.)

That every individual have an inalienable right to choose what religion he


so deserves to practice and if a religion is forced on a person, it would be
a violation of his fundamental human right and would be detrimental to
the common good.

2.) That it would be a waste of time if a government or pressure group


forcefully engages individuals in certain religion they do not believe in
since religion is a personal thing.
3.) That if religion is forced on individuals, it would cause religious strife
and war which would cause economic and social instability which is very
detrimental for the common good.
This led to the creation of a state where everybody is free to choose whatever
religion he desires to practice and totally voiding any scenario like state religion or
public sponsored religion. The states are usually called neutral states.
In the United States of America their Constitution conceded the above statement
of state neutrality by saying that:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof76
In Nigeria you will find section 10 in the Constitution which provides that:
The Government of the Federation or of a state shall not adopt any
religion as state religion77
This provision has caused a lot of societal confusion. In the United State, the first
amendments was interpreted to mean a situation where by government prohibit
people from voluntarily practicing their religion. For example in a certain case
it was held that it is unconstitutional for public schools to have a moment of

76
77

American Constitution First Amendment


1999 Constitution FRN

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prayer.78 Also it has been held that a moment of silence for prayer and meditation
at the beginning of the day is unconstitutional.79 Also it has been held that it was
unconstitutional to include religious instructions in the curriculum of children
in public schools. These hostile interpretation rather than help ensure religious
freedom for people gave the impression that nobody must practice their religion
therefore creating a hostile environment for religious freedom. This situation is
totally unacceptable.
The point of view of the world is however condescending to the American court`s
interpretation. A more preferable provision which protected religious freedom
was provided for in the International Covenant on Civil and Political Rights which
states as follows:
Everyone shall have the right to freedom of thought conscience and religion.
This shall include freedom to have or adopt religion or belief of his choice,
and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching.80
In Nigeria, the Constitution also provides for the protection of every person`s
right to religious freedom. Section 38 provides:
Every person shall be entitled to freedom of thought, conscience and
religion, including freedom to change his religion or belief, and freedom
(either alone or in community with others, and in public or in private) to
manifest and propagate his religion or belief in worship, teaching practice
and observance.
These two sections seem to have originated from the same source if one is not
mistaken. However, a significant part which was mentioned in the Constitution
and not mentioned in the Convention is the freedom to change religion. However,
it can be said that both protect individuals freedom of religion.
Another part of the Constitution which protects the right to freedom of religion is
section 15 which states:
Accordingly, national integration shall be actively encouraged, whilst
discrimination on grounds of place of origin, sex, religion, status, ethnic or
linguistic association or ties shall be prohibited.
78
79
80

School District of Abington Township v. Schemp in 1963.


Wallace v. Jeffrey, 472 U. S. 38 (1985)
Article 18(1) International Covenant on Protection of Civil Rights

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Nature of law

The section protects freedom of religion whereby a person is not discriminated


because he is from a particular religion. Since Nigeria is a plural society which
contain diverse religion, to discriminate in terms of religion will not be in the
interest of the common good. Section 15(3)81 also says that for the purpose of
promoting national integration, it shall be the duty of the state to encourage
intermarriage among persons from different place of origin or of different
religions, ethnic or linguistic association or ties. These sections discourage people
from discriminating against inter-religious marriages; it encourages people to
choose their spouses even if they are from other ethnic groups. Subsection (d)82
of the same section also promotes the formation of associations that cut across
ethnic, linguistic, religious or other sectional barriers. Organizations like Christian
Association of Nigeria have been formed to bring together people from the same
religious group, whereby encouraging freedom to form these organizations.
Section 2383 provides that National ethics shall be discipline, integrity, dignity of
labour, social justice, religious tolerance, self-reliance and patriotism. This section
also guides the doctrine of freedom of religion whereby people are encouraged to
tolerate people of other religion. It also signifies respect for other peoples religion.
Finally, it would be clear now that freedom of religion which was provided for in
our laws have enunciated the relationship between law and religion.

2.7.4 How law will accommodate religious beliefs


when there is a looming conflict
It is generally known that law is a universal topic. It is also well known that moral
values and religion have a very important impact on the law of a society. However,
what is not known is how religion will cope with moral and legal flexibilities since
religion is not flexible. The question can also be asked: what is the implication of
enacting a law mainly on moral grounds and not on religious grounds?
The legislators who enact laws must not only take into cognizance moral norms
but religion also. Religion which is an important part of human life must be taken
into cognizance by the lawmakers while enacting the law. However it should be
noted that it is not all these beliefs of a group that can be taken into cognizance in
enacting a law. This is because there are many religions in the world and some might
be saying a thing while the other contradicts it. Now the question is how far should
81 Constitution of the Federal Republic of Nigeria 1999
82 Ibid
83 Ibid

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society go in trying to accommodate the idiosyncratic beliefs of some religious


groups? This is however not a question susceptible of exact determination.84 Each
society must draw a line according to its own special legal circumstance where
religion will override law and vice versa.
Take the United States, for instance, where their constitutional experience shows
how they have been able to balance the relationship between law and religion. In a
certain case the court held that the Armish people (of a religious sect) are relieved
of the compulsory public education after the eighth grade education so that they
can learn a skill which is a requirement of their religious obligation.85 Also it has
been held by the United States Supreme Court that people who belong to the 7th
Day Adventist Church which their religion forbade them from saluting the flag
and saying the National pledge were not under compulsion to do the obligations.86
These cases show how the law has taken the religious values of a particular group
into cognizance. The courts have been quite benevolent in the approach. One
would simply say that the test should be if the courts see that by not following
the laws which contradict a religious value it would have no detrimental effect on
that individual or the society then such religious value will take priority over the
law. It has been held that the Armish people were not exempted from paying their
social security taxes when employing their member even if they refuse retirement
benefits and take care of their own.87
It is also good to mention that it has been held by United States courts that when a
body set up the government which its members were appointed in such a way that
it would be an impartial and non discriminative body in performing its function,
any duty placed on religious groups will be justified. In the case of Bowel v. Roy, it
was held that Native Americans may not be exempted from furnishing their social
security numbers as a condition for receiving food stamps even if the provision of
identity numbers violates their religious beliefs.88 It has also been held that Muslim
prisoners are not to attend religious services on Fridays if it conflict with their
work schedule.89 And if a law prohibits polygamy (specifically in Utah practiced by
the Mormons) such law is constitutional.90
84
85
86
87
88
89
90

Elegido, J.M. Op. cit. p. 371.


Wisconsin v. Yoder, 406 US. 205 (1975)
West Virginia State Board of Education v. Barnette; 319 U.S. 624 (1943).
United State v. Less, 455 U.S. 252 (1982).
U. S. 693 (1986).
OLone v. Shabazz, 1075, ct. 2400 (1987).
Reynolds v. United States, 98 U.S. 145 (1879).

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Nature of law

It is the responsibility of a court to ensure that the religions of the people are
protected at all times however there must be a time where the courts will not allow
the religious value to lie down so that the law will pass through it. It is all about
balancing and creating a point of limitation. Justice Roberts once said that:
The free exercise of religion embracing two concepts freedom to belief
and freedom to act. The first is absolute, but in the nature of things, the
second cannot be.91
People are allowed to believe in whatever religion they wish to but this is not the
same with the acting aspect. No freedom guaranteed by our law92 is absolute;
therefore society must find a way to restrict freedom which is detrimental to the
common good. Freedom to act must be limited to public safety, order, health, or
morals or the fundamental rights and freedoms of others.93
Finally, it should be noted that the test is the reasonableness of these religious
values, however, if these decisions had gone the other way it would still not have
violated any fundamental legal principle.

2.7.5 Religion and the Realist School of thought


Oliver Wendell Holmes played a fundamental part in bringing about a changed
attitude to law. The realist theory placed great emphasis on how other issues affect
a judge when he is deciding a particular case in court. One of those many issues
is religion. So many issues can affect a judge when he wants to make a decision.
Peculiar things like his religious beliefs, cultural values and his educational
qualifications. All these idiosyncratic patterns affect a judge when he is deciding a
case in court.
According to Holmes religion can affect a judge who is deciding a case. His religious
belief could affect his final judgment. This shows a clear relationship between law
and religion. The fact is that if a judge is a Muslim he will probably decide the case
based on his religious belief, also if a judge is a Christian or Catholic he will decide
a case based on his religion. Holmes` view about religion and the judges decision
is not that the judge will forgo whatever the law says but that where there is a
part of a case where the law does not cover the religious behaviour of that judge,
this will affect the judgment he will finally give when making that decision. Since

91
92
93

Cantwell v. Connecticut 310 U.S. 296 at pp. 303-4 (1940)


Constitution of the Federal Republic of Nigeria 1999
Article 18 International Covenants on Civil and Political Rights (1966).

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religion guides us on what is right and wrong, the fact remains that value will also
mould our views on what is wrong and right on a particular issue.
Take practical examples on how law metamorphosis in the United Kingdom.
The real law called the Law of Equity which took superiority over Common Law
found its roots in religion. Equity is the law developed by the old English Court
of Chancery as a result of the rigidity of the Common Law whenever the rules of
the common law courts worked hardship or injustice, the litigant sent a petition
to the sovereign as the fountain of justice and the royal counal. The person who
will then decide the case is the Lord Chancellor who is appointed by the king.
His decisions were not founded on any laid down precedent but on grounds of
his conscience. The principle of equity developed in a piecemeal manner because
equity presupposed the existence of the rules of the common law and had to act
upon them on ground of conscience in order to achieve justice. What is however
most significant here is that the chancellor appointed by the king is a clergyman.
He makes his decision mostly on his religious beliefs.
What is significant hear is that this court took priority over the Common Law
Court which was the court consisting of the Kings Bench, the Court of Common
Pleas and the Court of Exchequer at that time. They decided their cases on laid
down precedent making them authoritative and properly constituted court. This
even led to a dispute between the Chancellor and the common law judges who
frowned at the interference of the chancery court with the common law court. The
chancellor (appointed by the king) however claimed that he did not challenge the
authority of the common law courts but that if the decision of the Common Law
Courts worked hardship to the claimant then they will see how they can tamper
justice to the rigidity of the law with equity.
This shows us how religion has played a significant part in the development of the
law of equity which latter metamorphosed into a significant part of British law
which was transferred to all its former colonies including Nigeria. The influence of
religion can therefore not be underestimated.
The same can be said about Islam which has controlled the legal system of many
countries particularly the Middle East, where other substantive and procedural
laws have been shaped by Islamic religion. Virtually all their judges, legislators and
members of their executive are Muslims. This has therefore made them agree to a
state of religious Unitarianism i.e. a form of state religion.
Looking at the Nigerian situation, most of Northern Nigeria has been polarized
with Islamism. Islam plays a very important part of their law and this part has been
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Nature of law

Sharia which is part of our law. In the northern states of Nigeria, most people are
Muslims. This has affected their laws and this does not mean that the northern
part of Nigeria has taken Islamic religion as a state religion. It therefore means that
our laws have accepted Islamic law as part of its legislation but its application and
scope only covers Muslims not non-Muslim. The 1999 Constitution94 has provided
in Chapter VII (from section 260 264) the establishment of the Sharia Court
of Appeal of the Federal Capital Territory, Abuja. The Penal Code (Northern
States) Federal Provisions Act95 also provides for a combination of Islamic and
non Islamic laws. Many Noticeable differences can be found in the Penal Code.
Offences like adultery and fornication are seen as crimes in the Penal Code but not
in the Criminal Code. The difference between the two codes is that Penal Code
contains Islamic law while Criminal Code does not contain Islamic law.
Finally, it is apt to say that the view of Oliver Wendel Holmes is still relevant till
date. Judges take into cognizance their religious values when there is a lacuna in
the law and act like the Lord Chancellors i.e. as men of God. This reinforces the
views of the realist that law emphasizes on what the court may do, rather than on
abstract logical deduction from general rules, and on the inarticulate ideological
premises which may underlie the decisions of the courts,96 which focus attention
on the empirical factor which underlies a legal system.

2.7.6 Religious Disunity and the Stabilizing Instrument of Law


Religious disunity in the world today has created religious disharmony among
different sections of the global world. Islam, Christianity, Buddhism, Catholics
and Judaism have created an environment of religious competition and jealousy.
The most conflicting religions in the world today are Christianity and Islam. Both
have heated up the religious system of the world.
One of the most controversial religious issues till date is the Israeli Palestinian land
and the building of the controversial fence said to be a land grabbing tactic by
the Israelis and this has fueled religious disharmony in the world today. However
the point of blame is not just on the Israelis side, the Palestine have consistently
supported religious fanatical organizations like Hammas (known to be a terrorist
group by the United States and Europe) which has consistently carried out deadly
terrorist attacks on Israelis borders. This has led to heavy military bombardment
94 Federal Republic of Nigeria
95 CAP p.3
96 the Common Law, pp. 35 -36

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by the Israelis on the Palestinian territory, also causing military blockades, political
and economic isolation by Israel and the west on the Palestines.
The significant factor here is that the Palestinians are Muslims and the Israelis are
Jews (related to the Christian faith). This tumultuous situation has caused religious
disharmony in the world. It has created a stage of religious distrust between Islam
and Christianity i.e. between the East and the West. Terrorist Islamic groups
like Al Qaeda led by Osama Bin Ladin have used this matter as a justification to
recruit young men and women to engage in activities like bombing. The matter
has also caused religious riot all over the world, from the United States to Turkey,
to Northern Nigerian and back to Iran.
The law has however been helpless in resolving this situation. The United
Nation and other International Organization has failed in making International
Convention to help solve the religious disharmony. What we have seen is a
situation of side-taking in the matter. The Middle Eastern countries will take sides
with the Palestinians while the west will take sides with the Israelis which have
almost divided the world into two religious blocs.
The same scenario can be said about Nigeria. Nigeria has the largest concentration
of Muslims on the African continent. It has more Muslims than any Arab country
including Egypt. The Nigerian situation can be said to be linked to the Palestinian
Israeli conflict.
Currently there has been religious riots in Plateau, Kaduna and Kano States which
have seen the fair share of violence. The Law has failed to deal with the situation.
However, the Nigerian situation has its special peculiarities. Different reasons
have been advanced for the rise of Sharia militants in Northern Nigeria. One
reason is the claim by political observers that the Nigerian state is becoming more
decentralized in terms of culture.
Starting from Western Nigeria which has accepted Yoruba nationalization and the
East (Igboland) which has also taken the form of new demand for confederation,
in the Muslim north cultural self-determination is taking the form of Shariacracy.
Another reason given for this unfortunate circumstance is the drive by the North
for some sort of political bargaining chip, as the North is losing political influence
in the Nigerian Federation.
Whatever the cause may be, what is important is that the Nigerian Federation
has failed in making laws that will serve as an instrument to guard against such
conflicts. Also the United States have not had much success. Although they have
enacted many forms of anti-terrorism laws however these laws have only created
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Nature of law

more problems than solution. The United States have been able to create a state of
religious civility among its people but the issue of religious disharmony is still in
discussion among the people. The anti-terrorism law targeted at Islamic militants
has only occasioned injustice been committed by the federal executive agencies.
Countries in the Middle East have however not helped the situation. Countries
like Iran, Syria and Lebanon have been a breeding ground for religious fanatics.
The United states have accused these countries of funding these groups to cause
harm to them and their allies. They have made continuous effort to encourage
religious harmony thereby enthroning religious integration of society. The fact
still remains that although section 38 of the 1999 constitution97 has created an
atmosphere of religious independence and freedom in the society, it has not had
any congenital effect on the populace. Various laws and International Conventions
have been enacted but none has diffused the fragile situation. One would even
wonder if the law can help solve the situation since experience has also shown that
religion is a personal issue between people who have the right only to make their
choice. The law cannot force people to tolerate other peoples religion.
The law can however, (of course with the help of a responsible government),
create environment of religious civility where everybody despite his/her religious
dichotomy will accept that religion is a private matter to people and it must be
kept so.

2.7.7 Religion and Natural Law theory


The relationship between law and religion also goes to the issue of Natural law
theory. Thomas Aquinas who was one of the foremost early Greek philosophers
described natural law as nothing else but a certain dictate of the practical reason
in the prince who rules a perfect community. It is clear, however, supposing the
world to be governed by divine providence that the whole community of the
universe is governed. The divine reason, thus, his rational guidance of created
thing on the part of God, as the prince of the Universe, has the quality of law, this
we can call the eternal law.
From Aquinas` description of natural law it can simple be said that religion is law.
This statement put to nonsense all the previous propositions and explanations
made about the relationship between law and religion. His proposition claims that
law was made by God and everything made by God is eternal and everlasting. It
cannot be changed or amended. He further claims that this Divine law is applicable
97

Section 38 Federal Republic of Nigeria Constitution.

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to every human being created by God and that nobody can override these laws. It
simply means that the governed and the governors, the leaders and the followers
or even the rich and the poor are subject to His precepts and commandments. He
further claimed that anybody who goes against His laid down commandment will
be punished by God Almighty.
Although the natural law theory proposed by Aquinas is quite convincing and
cogent in trying to opine that religion as law is actually not foreseeable, it is of
common knowledge that law is partly natural law. If natural law is religion would
it be right to say that religion is natural law and natural law is law? Do they mean
the same thing? The answer to this confusing situation is partly yes and partly no.
We say yes because, looking at the equation (Law = Natural Law = Religion). It
looks quite balanced on the face of it. If the meaning of law is natural law and
natural law is religion then we can therefore say that (Religion = Law). However,
we say no because seeing law as natural law is a simply myopic view which should
be refuted. It is generally accepted that there is no one definition of law and seeing
law from the view of a known philosopher will simply be said to be seeing law
the way that philosopher sees law but not the way law is. In essence, what we
are saying is that law according to Aristotle is totally different from that of Hans
Kelsen, John Austin or Karl Marx. This simply tells us that though we will accept
that law contains religious elements, we will not accept that law is religion. All the
philosophers have made their contributions on their view of law. Yet all are right,
so it is for us to try to make a law that takes into cognizance all their view so that
our society will be best for it.
In conclusion it can be said that religion plays a significant part in law but is not law.
The percentage of this part is not known but what is most important is whether
the maker of the law shares the view of Thomas Aquinas since he was a clergy man.
We can therefore say that religion forms a significant part of law however it is not
entirely law.

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2.8 Social Change


It is trite that law exists to serve the needs of the society. Thus in every human
society, there are laws for the regulation of human conducts and behaviour. In the
words of the inimitable Oputa (JSC):
very early in life man becomes aware that he is living in a world of laws.
He becomes aware that to live in any society, he has to abide by the law
of that society law that regulate and govern the various relationships
demanded by society. He also discovers that obedience to these laws is
essential for the harmonious existence of the society as a whole and for the
preservation of the individual98.
The law is a veritable tool for resolving conflicts and protecting interests of human
aggregation in an orderly manner therefore obviating the need for recourse to self
help or other illegal method which may result to insecurity and chaos.
It is no gainsaying the fact that law therefore act as a social modulator in advancing
the cause of justice regulating the domestic life of the individual, his liberty, his
moral nature, his stature, his economic growth, his interrelationship with others.
Law in essence defines, regulates and adjusts relations between people in any given
society be it economic, political, social or commercial relations.99
The above overview therefore justifies our opening statement that law exists to
serve the needs of the society. The main point therefore is that if law is to play its
allotted role of serving the needs of the society, then the law must reflect the ideas
and ideologies of that society. Such law must keep with time and with the pulse
of the society and with the tempo of the needs and aspirations of the people. The
authenticity and credibility of this valid point is incontestable. Why? The reason is
that no society is static; the society is always in a state of flux, always evolving. The
law therefore should be dynamic to meet the exigencies of change.
As the society changes, the law cannot remain immutable for law must find answer
to new challenges and set new targets for the society. For instance, the exigencies
of cyber crime tasks law-makers to begin to evolve new rules into our criminal laws
and also to begin to amend obsolete provisions to meet with the demands and
complexities of our present age of Information Technology. Again, the Evidence
Law and Procedure in our courts need a thorough review in view of the exigencies
of electronically generated evidence and Information Technology. The reasoning
for this is that the world is gradually going into a paperless world with its attendant
98
99

Towards Justice with a Hum an Face! (1987) J.C.N.A.L. Vol. 2 p.11


Eso Kayode: Concepts of Law and Justice (1991) MIJ Publishers. p.3

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challenges and loopholes necessitating the formulation of new rules of evidence


in that regard. Also, with the advent of World Wide Web and the exigencies of
the information super high way, there is need for the reform of our property laws
to keep with time and tab with the threat it poses to intellectual property and
copy rights.
Change itself is a need in any society, for change, they say, is the only permanent
thing in life. Therefore, the law must in a changing world, march in tune with the
changing ideas and ideologies100. In the case of National Textiles Workers Union Vs.
Ramkrishnan101, the Indian SUPREME COURT (per Bhagwati) stated thus:
We cannot allow the dead hand of the past to stifle the growth of the living
present. Law cannot stand still; it must change with the changing social
concepts and values. If the bark that protects the tree fails to grow and
expand along with the tree, it will either choke the tree or if it is a living
tree, it will shed that bark and grow a living bark for itself. Similarly, if the
law fails to respond to the needs of changing society, then either it will stifle
the growth of the society and choke its progress or if the society is vigorous
enough, it will cast away the law which stands in the way of its growth.
It is therefore in the interest of the society that law should constantly be on the
move adapting itself to the fast changing society and not lag behind. The law
should not lag behind for the reason that social change would be meaningless if
not underpinned by the law that governs the society. Need we say that without a
system of laws, no society can govern itself, no individual or group can be assured of
security, no foundation can be laid for individual, cooperate, or national prosperity,
co-operation and national cohesion. When a society intends to make changes in
its economy or the way it governs itself, no matter how those changes are well
conceived or promulgated, they must be entrenched and sustained by legislation
for it is legislation that creates a firm and lasting framework that entrench change
in the society in the light of societal norms and aspirations. It is valuable to say that
social change will require reforming and strengthening the institutions that govern
and structure the society. It is in the light of the points raised that it becomes
necessary to state that social change would invariably involve an engagement with
law, the sole instrument with which society regulates its members and administer
its affairs.
There are certain times also that the law should set standards and targets for
society. This time, the law ought to move ahead of the society for the purpose of
100 Central Inland Water Transport Corporation vs. Ganguly (1986) SC1571
101 (1983) 1SCC 228

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Nature of law

securing certain minimum standards of goods for the society. The law should look
into the future, hypothesize and empirically formulate rules for the good of the
society. This way, the law would certainly be an instrument for social engineering.
Being that law principally is the foundation of social order and social cohesion, law
therefore becomes the instrument for social engineering not in the dynamics and
mechanics of physics but in the ordering and reorienting society and its members
towards certain minimum standards of behaviour expected for a better society for
all. Law reforms, reorders, and reorganizes society for the common good of all. For
instance, when economic crimes and corruption became so pandemic amongst
public officials in Nigeria that it was stifling the development of the society, the
Nigerian Government enacted the Economic and Financial crimes Commission
Act in 2002 and the Anti-corruption Commission Act to wage war against what
was becoming the trend for public office holders to shamelessly loot the Nations
treasury with impunity. With the EFCC in action, many politicians in Nigeria
retraced their steps and the wave of corruption and looting is gradually dying
down. These laws have helped in deterring the uncontrollable quest for large scale
stealing among Nigerian politicians and curbing the terrible menace and social
ill. Corruption may not have been eradicated in Nigeria, but successes have been
made in certain measures. At least amongst Nigerian politicians, it has been said
that the fear of EFCC is the beginning of wisdom. Also, with the increasing rate of
kidnapping in Nigerias Niger Delta region, most states in the south-south have
enacted Criminal Laws with death penalty for the offence of kidnapping.
Again, when drug trafficking and advance fee fraud rose to suffocating height
in the 1990s, the Nigerian Government promulgated stiffer penalties for these
crimes and therefore serving as deterrent to other members of the society. Again,
on the international scene, certain crimes are viewed as crime against humanity
such as Genocide which is triable and severely punished via the instrumentality
of the International Criminal Court. The entire world is still fashioning out the
modalities of tackling the menace of terrorism consequent on Americas experience
of September 11, 2001 in the cruel hands of the Al Qaeda Network.
With the instrumentality of law, economic and socio-political change is possible.
Even in the face of stiff opposition by labour and civil society groups, the Nigerian
ruling class continues to pursue privatization of public enterprises and deregulation
of the petroleum sector in line with the capitalist ideologies of World Bank and
IMF. This has been entrenched into our laws, they argue, for societal goods and
the benefits of efficiency and efficacy just to mention a few. In this regard, many
industries have been reorganized, reordered, restrategized and even the society
have been reorganized in line with these ideologies. In this scenario, the law is an
123

Jurisprudence and Legal Theory

instrument for social restructuring, engineering and re-engineering of the society


towards certain goals and objectives carefully conceived by the law-makers. This
is in tandem with the pure theory of law by Hans Kelsen that law is a pure science
and hypothetical conjectures conceived by the law-making organ of the society.
Here, law goes ahead of the society to make provisions for certain minimum
standards or behaviour for members of the society. For instance, in Nigeria, when
the ruling Peoples Democratic Party (PDP) became so authoritarian and despotic
about switching and substituting candidates and flag-bearers even after primary
elections have been conducted; when the matter appeared before the court, the
court did not hesitate to rule against this undemocratic posture of the said ruling
party which has led to the said party, in recent times, working so hard to dislodge
the evil hands of authoritarianism in the ruling party thereby re-engineering this
evil in Nigerian politics. These were exemplified in the Amaechi and Ararumes
cases102 where the Supreme Court severely berated and condemned the highhandedness of the ruling PDP for incessant substitution of candidates prior to the
2007 General Election in Nigeria.
The law is an instrument of social change as every law enacted affects and directs the
attitude, conducts and behaviour of members of the society. Every member of the
society observes the law as code of conduct for their actions, reactions or inactions.
Law is a veritable instrument for social change. It is part of the social machinery
used to enable planned changes and improvements in the organization of the
society to take place in an ordered fashion. The redefinition of relations between
individuals and groups as the conditions of life change and the maintenance of
adaptability are achieved through the instrumentality of the law. The problem of
reorientating conduct and redirecting it through the law when new issues emerge
is always tied to the demand of basic organization and the minimal maintenance of
order and regularity and the achievement of smoothness in social relations.
In the light of the above, the law should be couched in such a general form and open
enough to admit of future unforeseen circumstances and exigencies of change.
This is a challenge for our draftsmen who, as much as the limit of possibility allows,
should look into the future and draft laws with an eye on the trend and directional
sway of the world in order not to churn-out laws impossible to adapt to change or
subject to the problem of interpretation, implementation or application.
The judges on their own part imbued with the hallowed duty to interpret the law
should keep step and tab with time to always interpret and apply the law to meet
the demands of change in society. Since the law cannot and should not be expected
102 Rotimi Amaechi vs. INEC (2007) 18 NWLR [Pt. 1065] 170

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Nature of law

to cover every issue under the sun and since there can be no perfect law, the mantle
falls on the judiciary and indeed judges to refrain from the temptation of the usual
stereotyped interpretation or application of the law. Judges should begin to move
towards what has been described as judicial activism in departing from excessive
formalism to purposive interpretation and application of our laws. This is because
it is the judge who can easily adapt the law to meet the needs and demands of our
fast-changing world. Society is dynamic, so the law and even judges ought to adopt
dynamism in their approach to legal issues.
The law speaks practically through the court. The court, being the mouthpiece of
the law, therefore owes society a duty to speak the law not losing sight of the new
situations or change in the society the reason for which the law can be a living law
and not a dead law having no imprint on the society. It would be improper and
shallow reasoning to think that legislatures are best suited for the role of adapting
the law to the necessities of time or change. This is because legislative procedure
is too slow and most times the legislatures are often divided by politics and not
based on issues. They are also slowed down by periodic general elections and
overburdened with a myriad of other legislative duties. The task of adapting the
law to the demands of change in society necessarily falls on the courts because
the courts can by the process of judicial interpretation and adjudication adapt the
law to suit the needs of society with an eye on the change in the society. In the
Indian case of STATE OF MAHARAHTRA VS. DR PRAFUL DESAI,103 the court stated
as follows:
Courts in India can provide a much better solution to this situation
by adopting the purposive and updating modes of interpretation of the
provisions of the Act. It is presumed that the parliament intends the court
to apply to an ongoing Act a construction that continuously updates its
wordings to allow for change since the Act was initially framed. While
it remains law, it has to be treated as always speaking. This means that
in its application on any day the language of the Act, though necessarily
embedded in its own time, is, nevertheless, to be construed in accordance
with the need to treat it as a current law.
In line with the above instructive and illuminating exposition and dynamism
of the Indian judges, law ought to be giving life and breath through purposive
interpretation by courts in order to meet the demands of constant change in the
society. Accordingly, law is a living phenomenon and thus implies a task on all
judges to treat it as such. One of the characteristics of a living thing being growth,
103 (2003) 4 S.C 601

125

Jurisprudence and Legal Theory

the court is thus imbued with the solemn duty to adapt the law to the needs of
change in the society as this will ensure the growth of the law to justify that it is
living and not dead. However, there exist also a duty on the judiciary to adapt
or apply the law such as will not throw the society into chaos or confusion.
The mischief sought to be cured in any society demands careful consideration,
balancing and re-balancing so as not to throw the society to confusion and arrive
at a remedy worse than the malady.

FURTHER READING/REFERENCE
1.

Blacks Law Dictionary 7th Edition pg 89

2.

New World Translation of the Holy Scriptures Gen. 2 vs. 17

3.

Exodus 20 the Holy Bible

4. Obilade, Nigerian Legal System pg. 3


5.

L. Fuller, Fidelity of Law, in 71 H.L.R pg 644

6.

M.T. Ladan, Introduction to Jurisprudence pg. 26

7.

Sanni A.O, Introduction to Nigerian Legal Method at pg. 12

8.

F.U. Jizong, Relationship between Law and Morals

9.

Barbara Wanton, Diminished Responsibility in LQR Vol 76 (1960) p.24

10. Lord Delving, The Reinforcement of Morals (1956) at p.14


11. Morality and Treason (in the Listener) July 30 (1959) p.163
12. Okagbue J.C., Unification and Reform of Sexual and other Allied offences in
Nigerian Criminal Law pg. 48-72
13. Aguda, T.A, The Crisis of Justice in Nigeria (1986) Eresu Hills Publishers
Akure
14. Bodenboimer R, Jurisprudence Harvard (1967) p.5
15. Friedman, W. Legal Theory 5th edn. (1967) London p.99
16. Genesis chap. 3 v 12 New Word Translation of the Holy Scriptures
17. Freeman, M.D.A Lloyds Introduction to jurisprudence 7th edn. P. 802
18. Oputa, C.A. Towards Justice with a Human face (1987) J.C.N.A.L.J.L No.2
19. Kayode Eso, Concept of Law and Justice under the Nigerian Constitution
-Judicial Lectures, Continuing Education for the Judiciary (Lagos M.I.J
Professional Publishers Ltd: 1991) p.3
20. Dickson, L.E.A. The Society and the Law (New York: 1977) p. 103
126

Chapter Three

General Sources of Law


Introduction
Every legal system is governed by laws for the efficient functioning of its affairs,
it is therefore imperative to determine the sources of these various laws but for
the purposes of this subject, the sources of law shall be limited to jurisprudential
analysis and studies. The term sources of law relate to where the law emanates
from; it refers to the origin from which law in the system derives its validity.
For instance the main source of the law in the Nigerian legal system is the 1999
Constitution which is the grundnorm from which all other laws derive their validity
and any law contrary to its provisions will be void to the extent of its inconsistency.
Basically, the sources of law in any legal system can be classified into two broad
categories namely:
1.

Formal sources which are those legal procedures and methods for the
creation of rules of law that have general application and are legally
binding on those subject to that system of law. The Statute/Constitution,
legislation, subsidiary legislation and judicial precedent can be classified
as formal sources of law.

2.

Material sources of law which provide evidence of the existence of rules


which, when proved, have the status of legally binding rules of general
application. Under this category we have, writings of publicists (which
will be discussed under international law), ascertainment, adaptation,
unification, codification, opinion of jurists, Conventions, Equity and
rules of Interpretation of Statutes.

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Jurisprudence and Legal Theory

3.1 Formal Sources of Law


3.1.1 Statutes/Constitution
In most modern societies that operate written Constitution in their legal systems,
the Constitution is the grundnorm of every law. The Constitution is an act of the
people themselves made by their representatives elected for such purpose. The
Constitution is the supreme law of the land and it is binding on all future legislative
bodies; it can only be altered by the authority of the people in the manner provided
for in the instrument itself. It is the system of law and principles by which a state
is governed therefore its sanctity must be obeyed at all times. The Constitution is
a unifying factor binding on the entire citizenry. Executive, legislature and judicial
actions should not be seen as breaching it without undergoing the most tedious
and cumbersome processes. The Constitution creates rights, duties, obligations,
separates and guarantees the rights of individuals, institutions and cooperate
bodies in a nation State.
In the hierarchy of legislations, the Constitution of every country is at the top
of the hierarchy. Some countries like the United Kingdom do not have a written
Constitution where all their laws are enshrined in and can be traceable to one
document. This however is not the case in other countries like Nigeria and United
States of America.
In Nigeria, the Constitution is the greatest legislation or legal document and all
other laws must be in conformity with it thereby making it supreme104 and any
other law that is inconsistent with its provisions shall be void to the extent of its
inconsistency.105 In the case of Orji vs. Anyaso106 it was held that by virtue of the
doctrine of hierarchy of legislations, the Constitution of the Federal Republic
of Nigeria is at the apex of legal document followed by the Act of the National
Assembly with the various states laws coming next. The doctrine posits that any
provision of the Act of the National Assembly or State Law that is inconsistent with
the provisions of the Constitution shall be void to the extent of its inconsistency.
Similarly, the provision of any State Law which is in conflict with the Act of the
National Assembly shall also be void to the extent of its inconsistency. In the case
of Adisa vs. Oyinwola107 it was also held that the Constitution of Nigeria is the
104 S.1 of the 1999 Constitution of the Federal Republic of Nigeria states that the
Constitution is supreme and its provisions shall have binding force on all authorities
and persons throughout the Federal Republic of Nigeria.
105 Ibid. S.1(3)
106 (2000) 2 N.W.L.R (Pt 643) 1 C.A.
107 (2000) 10 N.W.L.R (pt 674) 116 S.C

128

basic law of the land that is the supreme law and its provisions has binding force on
all authorities, institutions and persons throughout the country.
The supremacy of the Constitution has been upheld in so many decided cases
that there cannot be an iota of doubt of its supremacy. In Adeleke vs. O.S.H.A108
a notice of allegation of the misconduct of the Oyo state Governor was issued
against him which subsequently led to his impeachment although it was done
unconstitutionally. On appeal it was unanimously held that the House of Assembly
of a state has no power to override by its action the conditions of law making as
laid down by the Constitution. The Court further held that every section of the
Constitution is supreme in its own right as any other section of the Constitution
and fundamentally each of the sections of the Constitution forms part of the
Supreme Law.
From the decisions of the courts, it is unambiguously clear that the Constitution
of a nation is the Supreme Act within the hierarchy of regulatory instruments; the
Constitution is at the top of the pyramid of legal sources. Inherent supremacy stems
from the generic character of the constitution; the context of the Constitution is
not determined by compliance with any national legal requirements or preceded
by other binding national legal instruments. The supremacy of the Constitution
has a formal aspect to maintain the hierarchy in the system of sources of law but
also defines the material content of the laws and of regulatory instruments with a
lower legal binding force. Limitation of legislation within the parameters allowed
by the Constitution is highly obligatory and constitutes an immediate binding
effect of constitutional supremacy.
Since the Constitution is the grundnorm, it means it is the source of all laws in
a country and it vests the three arms of government with their powers; the
legislature powers to make laws in accordance with the constitution, the judiciarys
independence and fairness to justice, the executive enforcing the law without bias.
These three arms of government act as checks to one another. The legislature
functions by making the laws, while the executive officers help shape its agenda
and the judiciary may be called upon to explicate the meaning of its statutes or
to examine or pronounce on its constitutionality. All these powers the various
bodies posses are to be exercised in accordance with the rule of law. The court
of appeal in the case of A.N.P.P vs. B.S.I.E.C109 on the meaning of the rule of
law held that; the Nigerian Constitution is founded on the rule of law and the
primary meaning of which is that, everything must be done according to law;
108 (2006) 16 N.W.L.R (pt 1006) 608 C.A
109 (2006)11 N.W.L.R (pt 992) 585 C.A

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Jurisprudence and Legal Theory

It also means that government should be conducted within the frame work of
recognized rules and principles which restrict discretionary power. The rule of law
means that disputes as to the legality of acts of government are to be decided by
judges who are wholly independent of the executive. The judiciary cannot shirk
its sacred responsibility to the nation to maintain the rule of law. It is both in the
interest of the government, all persons in Nigeria110 and by extension countries that
adopt written Constitution. Similarly, it is noteworthy to say that the supremacy
of the Constitution cannot be contested even a treaty provision cannot prevail
over any provision of the Constitution because every section is supreme in its own
right as any other section of the Constitution111 and because the Constitution is
the grundnorm. In the case of Danbaba vs. State112, it was unanimously held that
by virtue of S.1(1) and 1(3) of the Constitution of Nigeria, the Constitution is
supreme and its provisions shall have binding force on all authorities and persons
throughout the Federation of Nigeria and any other law inconsistent with its
provisions shall be void. Galadima, J.C.A also stated thus: where there is a conflict
between the provisions of the charter and those of the Constitution, and then those of
the Constitution must prevail. The provisions of a treaty cannot override the provisions
of our Constitution.113

3.2 Legislation
Legislation is the act or process of making laws by a recognized body in a legal
system to formally and expressly declare what law is; it is the act of giving or
enacting laws.114
Nigerian legislation is of a general applicability, it applies to all matters and persons
within its jurisdiction and it consists of statutes and subsidiary legislation. The
general applicability of Legislation was illustrated in the case Gubba vs. Gwandu
Native Authority115 where the appellant was convicted of murder and sentenced
110 Other cases referred to: Government of Lagos State v Ojukwu (1996) 1 N.W.L.R (pt
18)621
111 Adeleke v O.S.H.A (2006)16 N.W.L.R (pt 1006) 608 C.A
112 (2000) 14 N.W.L.R ( pt 687) 396 CA
113 This position is even more aptly restated in Abacha v Gani Fawehinmi (2000)6 N.W.L.R
(pt 660) 228 at 315-316 by Achike, J.S.C; both counsel in the appeal held divergent
views on the scope and nature of the local enactment in comparison with the African
charter. It is necessary to get our bearings right, the constitution is the supreme law
of the land; it is the grundnorm. Its supremacy has never been called to question in
ordinary circumstances
114 Minister of Internal Affairs V Okoro (2004) 1 N.W.L.R (Pt 853) 58 C. A
115 (1947) 12 W.A.C.A 141

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General sources of law

to death by a Grade A Native Court. He appealed to the Supreme Court which


upheld the decision of the Native Authority because he was bound by the majority
decision of the West African Court of Appeal in Bornu Native Authority V Abacha.
On appeal it was held that:
1).

The legislature intended that section 4 of the criminal code should apply
to proceedings in native courts.

2). No person is liable to be tried in a native court for an offence against the
Criminal Code or other Ordinance except under the provisions of that
Code or Ordinance.
3). Where a native court exercises jurisdiction in relation to an act which
constitutes an offence both against the Criminal Code or Ordinance
and against native law and custom, the native court must exercise that
jurisdiction in accordance with the provisions of the criminal code or
other ordinance.
Another illustration of the general application of legislations was decided in the
case of Fagoji vs. Kano Native Authority,116 which involves intentional homicide
called amd in Maliki law; the basis for the argument was that the Criminal
Code does not apply to all persons and as such the Native Court was bound to
apply native law and custom. The court held that the Criminal Code applied
throughout Nigeria at the material time, but in the case of Tsmaiya vs. Bauchi
Native Authority117 the court disapproving the views in the previous case held
that a native court in the northern region is not empowered to apply the sections
of the Criminal Code relating to homicide. In Maizabo & Ors. v Sokoto Native
Authority,118 the court held that:
1.

Section 10(a) of the Native Courts Ordinance in its first paragraph


empowers native courts to ignore the Criminal Code in trying offences
under native law and custom

2.

Under the proviso to the section, native courts must first ascertain which
offence under the Criminal Code the act or omission complained of
constitutes and must not impose a punishment greater than that provided
by the Criminal Code for such offence.

116 (1975) N.R.N.L.R 57


117 (1957)N.R.N.L.R 73
118 (1957) 2 F.S.C 13

131

In Gana vs. Bornu Native Authority119 the West African Court of Appeal had
earlier held that the proviso to section 10(a) of the Native Court Ordinance merely
prohibited a native court from imposing a higher sentence than that allowed by
the Criminal Code for the offence and as such the court upheld the trial under the
Criminal Code. The various decisions show that the courts are not certain as to the
applicability of the Criminal Code in native matters. In our humble opinion, the
courts, including the Native Courts should treat the Criminal Code as a legislation
that applies in all circumstances and to all persons and as such, adherence should
be made to its provisions when issues are in dispute.
Statutes are laws enacted by the legislature, while the subsidiary legislations are
enacted in the exercise of power given by a statute, in other words called delegated
legislation. By virtue of the 1999 Constitution, the National Assembly and the State
Houses of Assembly are the primary law making bodies for the Federation and
States respectively.120 In a situation where the National Assembly makes a legislation
which is identical to a legislation made by the State House of Assembly and there
is no inconsistency in the two legislations, the legislation of the National Assembly
which has a wider jurisdiction will cover that of the State House of Assembly; that
is the state law must give way to the federal law in determination of the matter
in which the two laws were presented. This is called the doctrine of covering the
field.121 There are also other bodies that make laws which are also enforceable but
in terms of hierarchy, the law made by the National Assembly precedes them all.
Legislation can be classified into primary and subordinate legislations.

3.2.1 Primary Legislation


Primary legislations are laws made by the main law making body in a country and
as stated earlier, the National Assembly and the State Houses of Assembly are the
primary law making bodies in Nigeria. Therefore, all laws made by other bodies
must be in conformity with their laws. The Constitution of Nigeria confers the law
making power of the nation on the National Assembly122 and as such the laws made
by the National Assembly precede any other law that is inconsistent with laws
made by it.123 In the case of Ladoke Akintola University of Technology vs. Z.O
Ogunwobi124 it was held that the supremacy of federal law over state law (S.4 (5) of
119
120
121
122
123
124

(1954) 14 N.W.L.R 587


S.4 of the 1999 Constitution
Lautech V Ogunwobi (2006) 4 N.W.L.R (pt 971) 569
Ibid. S. 4
Ibid. S. 5
(2006) 4 N.W.L.R (pt 971) 569 C.A

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General sources of law

the Constitution) deals with a situation where there is a conflict between any law
enacted by a State House of Assembly and any law by the National Assembly, the
State Law shall be void to the extent of its inconsistency.

3.2.2 Subordinate/Subsidiary Legislation


Subordinate or subsidiary legislations are by-laws made by lower ranking bodies
compared to the National Assembly and State Houses of Assembly. They are laws
enacted in the exercise of powers given by a statute. They consist of regulations,
rules of court, orders, by-laws and other instruments made under the authority of
statutes. Basically, this power to make laws is conferred by the recognized law
making body on the lower body. The persons recognized to posses such legislative
powers range from Ministers to Permanent Secretaries or Directors General of
ministries, local government councils, corporations and heads of judiciary. The act
or the process to confer legislative power is called delegation of power. Delegation
of power is inevitable due to the fact that the National Assembly or State Houses
of Assembly cannot carry the burden of law making alone because it might lead to
inefficiencies in some areas due to technicalities which they may not be familiar
with. In other words, delegated legislation is important to accommodate experts
input. Generally speaking, legislative delegation of power is valid so far as such
power being delegated has not been expressly prohibitd.125 In the case of Exsquadron leader J. M. Yakasai vs. Nigerian Air Force126 the issue on delegation
of power was dealt with and the Courts decision was guided by the Latin maxim
delegatus potest non delegare.
In Constitutional law, the delegation principle is based on the separation of powers
concept limiting the legislatures ability to transfer its legislative power to another
governmental branch especially the executive arm. Delegation is permitted only if
the legislature prescribes an intelligible principle to guide an executive agency in
policy making.
As earlier mentioned, the need for delegated legislation arises because it
would be impossible for the drafters of the primary legislation to envisage
all the circumstances that might arise under the parent Act for which further
125 S.12 of the Constitution (Suspension and Modification) Decree N0.1 of 1984; it makes
it clear that the function of signing Decrees and Edicts by the Head of State of the
Federal Military Government and State Governors respectively shall not be delegated.
126 (2002) 15 N.W.L.R (pt 790) 294 C.A. Other cases with similar decisions are; Awobotu
v State (1976) 5 S.C 49; Okafor v State (1976) 5 S.C 13; Onwuka v State (1970) 1 ALL
N.L.R 159.

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Jurisprudence and Legal Theory

legislative provision would be necessary. As such, the use of delegated legislation


provides significant flexibility to keep the law current and applicable to specific
circumstances. Another important point to note is that the delegated power can be
withdrawn especially when it is being misused. The delegate must act within the
confines of the authority conferred on it by law else the doctrine of ultra vires will
step in. It is a device used by the court in controlling such powers.127 In a situation
where the delegates legislation is ineffective ab initio, it makes the subsidiary
legislation equally void and without effect.
Legislation goes through two stages before publicity, the first stage is the antecedent
stage and it requires that when a proposed rule is to be made, there should be a
general awareness to the public for a certain period which is normally fixed by
statute for them to consider. In Nigeria, there are various provisions in the enabling
acts with authorized antecedent publication128.

3.2.3 Subsequent Legislation


This is to the effect that it is important for the public to be aware that a law or
rule has been passed and is in effect in the society. This is because most laws carry
sanctions attached with them for failure to obey them. Unlike the antecedent
publicity in Nigeria that lacks provisions for it, several statutory provisions in
Nigeria requiring publication of rules and regulations are in existence129. There are
several ways by which rules are published; some are published in the gazettes or
daily newspapers, some on notice boards of local government councils or at the
customary courts.
However, government agencies concerned with law making should always ensure
that the public is allowed adequate participation in the law making process. This is
because the law itself is for the general well being of the people and society at large
not just for the legislators.

127 State v Falade and Ors. (1972) 2 ALL N.L.R 219


128 An example is S.12 (2) of the Legal Practitioners Act 1962.
129
An example is S.173 of the Local Government Law of Ogun State, 1978 CAP.63; it
makes provision for every Bye-law that is adopted by the local government.

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General sources of law

3.3 Interpretation of Statutes


There are various theories as to how the judge should interpret statutes,
they include:
a.

The Literal Rule: this is to the effect that the statute should be interpreted
literally that is according to its ordinary meaning. The duty of the court
is to discover the intention of the lawmakers which can be derived from
the language used and once the meaning is clear, the courts are to give
effect to it. Tindal C. J in Sussex Peerage13028 case stated that: if the words
of the statute are in themselves precise and unambiguous, then no more can
be necessary then to expound those words in that natural and ordinary sense.
The words themselves alone do, in such a case, best declare the intention of the
lawgiver. In the case of Misc. Offences Tribunal vs. Okoroafor13129, it was
held that a court faced with the interpretation of a statute has a duty to
first discover the intention of the lawmakers. This has to be discovered
from the words used in their ordinary and natural sense- when there is
no doubt or ambiguity about their meaning. Thus, the safer and more
correct course of dealing with a question of construction is to take the
words themselves and arrive, if possible, at the meaning without in
the first instance reference to their cases. The literal construction must
be followed unless if been followed it would lead to absurdity and
inconsistency with the provisions of the statute as a whole. The cardinal
rule for the construction of legislative language is that words used in a
statute which are not applied to any particular science or art are to be
construed as they are understood in common language. Where the words
of a statute are clear, the court shall give effect to their literal meaning.
In the case of Madu vs. N.U.P13230, the court held that a law should be
interpreted as it is when it appears clear, not as the interpreter thinks
it ought to be. For example, in the case of R. vs. Bangaza133 where the
Federal Supreme Court had to interpret section 319(2) of the Criminal
Code (Federal and Lagos laws 1958 cap.42) which provided that: where
an offender who in the opinion of the court has not attained the age of
seventeen years has been found guilty of murder, such offender shall
not be sentenced to death but shall be ordered to be detained. The
court found that it was clear from the wording that the relevant age was

130 (1844) Cl. and Fin.


131 Misc. Offences Tribunal v Okoroafor (2001) 18 NWLR (pt 745) 295 S.C
132 (2001) 16 N.W.L.R (Pt 739) 147 C. A
133 (1960)5 F.S.C 1

135

Jurisprudence and Legal Theory

the age at the time of the conviction and not the age at the time of the
commission of the offence. The court therefore rejected the view that the
relevant age was the age at the time of the commission of the offence.
Judges should interpret the law; they should not take over the functions
of the law makers.
b.

The golden rule: This rule provides that if the literal interpretation will
lead to absurdity, then it should be modified to a less obvious meaning. A
classic statement of the golden rule is the following by Lord Blackburn:134
I believe that it is not disputed that Lord Wonsleydale used to call the golden
rule is right, viz, that we are to (give) the words their ordinary signification,
unless when so supplied they produce an inconsistency or an absurdity or
inconvenience so great as to convince the court that the intention could not
have been to use them in their ordinary significance and to justify the court in
putting on them some other signification, which, though less prosperous, is one
which the court thinks the words will bear.

c.

The mischief rule: this rule was formulated by the Barons of Exchequer
in 1584 in Heydons case135 The rule stipulates that for the sure and true
interpretation of all statute in general (be they penal or beneficial,
restrictive or enlarging of the common law) four things are to be discerned
and considered: (1) what was the common law before the making of the
Act? (2) what was the mischief and defect for which the common law
did not provide? (3) what remedy hath the parliament resolved and
appointed to cure the disease of the common law? (4) the true reason
of the remedy and then the office of all the judges is always to make such
construction as shall suppress the mischief, and to add force and life to
the cure and remedy, according to the true intent of the makers of the Act,
pro bono publico.

In simple terms, this rule is to the effect that, the court should define the problem
the Act was meant to remedy and choose the interpretation which best deals with
the problem.
Apart from these broad approaches, there are more specific rules of interpretation
which fall into two categories:
-

Rules of language: an example is Ejusdem Generis rule, it is a Latin phrase


which means of the same kind. Where general words follow a list of

134 River Wear Commissioners V Adamson (1877) 2 App. Cas. 743 at pp.764-5
135 (1584) 3 Co.Rep.7a; 76 E.R. 638

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specific examples, the general words take their meaning from the specific
words and so are not as general as they first appear. The general rule of
construction is that where a particular class is spoken of and general words
follow, the class first mentioned is to be taken as the most comprehensive
and the general words treated as referring to matters ejusdem generis with
such class.136
-

Presumptions: the judges make certain assumptions about the


intentions of parliament and require strong evidence to the contrary.
These include presumptions that parliament does not intend to impose
criminal liability on persons, does not intend to take away fundamental
rights and does not intend to exclude the courts from deciding disputes.137

There are also the general or miscellaneous rules. The court laid down the
following rules in the case of Awolowo vs. Shagari13836 on the interpretation of
statute: a statute should always be looked at as a whole; words used in a particular
statute are to be read according to their meaning as popularly understood at the time
the statute became law. A statute is presumed not to alter existing law beyond that
necessarily required by the statute. It is necessary to emphasize that a decision on the
interpretation of one statute generally cannot constitute a binding precedent with regard
to the interpretation of another.

3.4 Equity as Source of Law


It would have sufficed to mention judicial precedent as a source of law or brought
under equitable remedy as a sub-heading under judicial precedent but this is quite
different. Judicial precedent is based on ratio decidendi derived from statutory
provision or previously decided cases. In this particular circumstance, no statute
or judicial precedent may be required for the judge sitting in a court of competent
jurisdiction to give reasonable, fair and equitable judgment in a case. Here, what
is paramount is fairness and justice even where such provision may not have been
provided in the statute book.
Although in theory the courts are meant to interpret the law, however, in practice
they go into the voyage of law making when the occasion demands in order to
enable them to properly dispense justice in court during adjudication. A defendant
will not be allowed to use law as an instrument to commit fraud or obtain undue
136 Attorney- General of the Federation v Ijewere (1986) 4 N.W.L.R (pt 37) 659.
137 Anisminic Ltd v Foreign Compensation Commission (1969) 1 ALL ER 208.
138 (1979)6-9 S.C 51

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Jurisprudence and Legal Theory

advantage over the plaintiff by a court applying equitable principles. Once a


decision is reached on grounds of equity, it becomes binding on other courts in
the form of judicial precedent which eventually forms a general applicable law.

3.4.1 The Nature Of Equity


Equity is the means by which a system of law balances out the need for certainty in
rule-making with the need to achieve fair results in individual cases. An expression
which has been commonly used to describe the way in which equity functions
is that equity mitigates the rigour of the common law so that the letter of the
law is not applied in so strict a way that it may cause injustice in individual cases.
English equity does this by examining the conscience of the individual defendant.
Equity, then, is that part of English private law which seeks either to prevent any
benefit accruing to a defendant as a result of some unconscionable conduct or to
compensate any loss suff ered by a claimant who results from some unconscionable
conduct, and which also seeks to ensure that common law and statutory rules
are not manipulated unconscionably. At its broadest, equity appears to imbue
the courts with a general discretion not to apply statutory or common law rules
whenever good conscience requires it; however, in practice, modern equity is
comprised mainly of substantive and procedural principles which only permit the
courts a limited amount of discretion.
There are three different ways of understanding equitys role as part of the English
legal system. First, equity can be understood as the means by which English law
ensures that the strict application of a common law or a statutory rule does not
result in any unfairness when applied in a specific case. To this extent equity is a
form of natural justice, which means that it has a moral basis. Equitys particular
moral purpose was described by Lord Ellesmere in the Earl of Oxfords Case as being
to correct mens consciences for frauds, breach of trusts, wrongs and oppressions
and to soften and mollify the extremity of the law. This is a moral purpose in
that it both prevents a defendant from taking unconscionable advantage of a
situation and also it prevents the law inadvertently permitting an unconscionable
result. Secondly, equity can be considered, in its formal sense, as constituting the
collection of substantive principles developed over the centuries by the Courts of
Equity, principally the Court of Chancery, to judge peoples consciences. In this
sense, equity should be understood as being a code of technical, substantive rules
and not simply as a reservoir of general, moral principles. Thirdly, equity can be
understood as comprising the procedural rules and forms of action developed
by the Courts of Chancery over the centuries under the authority of the Lord
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General sources of law

Chancellor. It should be noted that the second and third aspects of equity differ
from the apparent breadth of the first in that they constitute technical rules of
law rather than abstract philosophical principles. It is common for English and
Australian writers on equity to focus on these latter senses of equity in preference to
a consideration of more philosophical notions of natural justice theory; although,
it is suggested, an appreciation of these philosophical underpinnings is important
if equity is to be understood as a collection of coherent principles and not simply
as a ragbag of different doctrines.
In all legal systems the following problem arises: how can we create general
common law or statutory rules without treating some individual circumstances
unjustly? In the context of the English legal system it is equity which performs
this balancing act when set against the rigidity of the common law. In this regard,
the work of the German philosopher Hegel has generated the following definition
of equity:
Equity involves a departure from formal rights owing to moral or other considera
tions and is concerned primarily with the content of the lawsuit. A court of equity,
however, comes to mean a court which decides in a single case without insisting
on the formalities of a legal process or, in particular, on the objective evidence
which the letter of the law may require. Further, it decides on the merits of the
single case as a unique one, not with a view to disposing of it in such a way as to
create a binding legal precedent for the future.
Hegel was one of the foremost philosophers of the last 200 years, not a lawyer, but
his definition of the activities of equity in its legal sense is nevertheless particularly
useful because it shows us how equity permits the achievement of fair or just
results in situations in which the literal application of statute or common law might
otherwise lead to unfairness or injustice. As mentioned, this summary should be
treated with some caution because he wrote as a German philosopher rather than
as an English lawyer; yet, Hegel captures the fact that the court is concerned only
with the merits of case between the claimant and the defendant, and not necessarily
with the broader context of the law. In this way the court can focus on reaching
the best result in the circumstances even where a literal application of statute
or common law might seem to require a different result. Despite this ostensible
flexibility, this book will consider some areas in which equity generally (and the
trust in particular) seem to have become rigid institutions more akin to contract
than to the underlying spirit of equity which treats each case as a unique one.
The underlying argument of this book is that there is a need to understand
the elegant simplicity of equity at the same time as the legal system is asked to
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Jurisprudence and Legal Theory

consider questions asked of it by an ever more complex society. We shall see this
development, for example, when we consider how equity allocates right in the
home between members of the same family. That will require us to resist the siren
call of those who argue for ever more formalistic tests for doctrines like the trust
which were originally formed in the grand tradition of equity by the Courts of
Chancery. It has been said that certainty is the hallmark of every effective legal
system, but it is also true to say that chaos and complexity are the common
characteristic of every problem which confronts such a legal system. People only
go to court when their problems have become too difficult for them to sort out
on their own. Therefore, equitys flexibility is important in ensuring that the law
retains sufficient suppleness to cope with the social developments over which the
court is asked to sit in judgment.
Equity and Trusts are interesting subjects precisely because their inherent fluidity
has enabled them to regenerate themselves regularly over time and yet their
technical sophistication has provided lawyers with a range of techniques with
which to achieve their clients goals in a variety of circumstances. The fundamental
principles of equity are part of a philosophical tradition which is identifiable in
the thought of the ancient Greeks. Nevertheless, it should be remembered that
the English Courts of Equity have never expressly acknowledged that they are
operating on anyone philosophical basis, although, as will emerge throughout
this book, it may appear that they do have such grand aspirations hidden within
their judgments. The development of equity through the cases has been far more
pragmatic than that.
This book deals with the general doctrines and remedies of equity as a source of law.
The principal equitable doctrine is that equity acts in personam on the conscience
of the defendant, which means that the main focus of a Court of Equity is to
consider whether or not the individual defendant has acted in good conscience.
The Law of Trusts was born out of equitys focus on acting on conscience, but
the subsequent development of trusts law has reflected the increasing use of
trusts in commercial transactions in which certainty has been considered to be
an important requirement. As a result, the ostensible flexibility of equity was
displaced first by the development of the doctrine of precedent governing the
application of equitable maxims and latterly by the increasing certainty required
of doctrines like the trust.

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General sources of law

3.4.2 Equity and Trust are Based on Conscience


As explained in the preceding paragraph, the most significant equitable doctrine
is the trust, which forms the principal focus of this book: our focus will therefore
divide between the law of trusts and general equitable principles and remedies.
The most important case in relation to the development of equity and the trust
in recent years was arguably that in Westdeutsche Landesbank v Islington LBC, in
which Lord Browne-Wilkinson addressed two main issues, aside from dealing
with the appeal before him. First, he set out his version of the core principles of the
law of trusts. Secondly, he set about re-establishing traditional notions of equity as
being at the heart of English trusts law. As opposed to the new principle of unjust
enrichment developed (principally) by Lord Goff and a group of academics
centred primarily in Oxford, Lord Browne-Wilkinson has re-asserted a traditional
understanding of the true being based on the conscience of the person who acts as
trustee. So, in Westdeutsche Landesbank v Islington LBC, his Lordship went back to
basics with the first of his Relevant Principles of Trust Law:
Equity operates on the conscience of the owner of the legal interest. In the case of
a trust, the conscience of the legal owner requires him to carry out the purposes
for which the property was vested in him (express or implied trust) or which the
law imposes on him by reason of his unconscionable conduct (constructive trust).
(i) As we shall see, the basis of the trust (and indeed the whole of equity)
is concerned with regulating the conscience of a person where the
common law might otherwise allow that person to act unconscionably
but in accordance with the letter of the law. Suppose, for example, that
a defendant is permitted by a statutory provision, or a rule of common
law, to receive a payment of money as a result of being red-headed. If the
defendant had worn a red wig to fool the payer into thinking that she
fell within the category of red-headed people, common law might permit
the defendant to keep the money on a literal interpretation of the rule.
However, equity would prevent the defendant from manipulating that
statute for fraudulent purposes on the basis that to allow the defendant to
do so would be unconscionable. Westdeutsche Landesbank v Islington LBC
re-asserts this basic principle of good conscience. A substantial part of the
argument of this book is that it is only the traditional equitable notion
of focusing on the conscience of the defendant which can make trusts
law coherent.

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Jurisprudence and Legal Theory

3.4.3 The Many Senses of Conscience


The task of establishing a meaning for the term conscience will be, as we shall see
throughout the course of this book, a particularly difficult one. The genesis of the
term ,conscience, in this context is in the early statements of English jurists that
the Courts of Equity were courts of conscience and, more significantly, that the
Lord Chancellor was the keeper of the monarchs conscience. The post of Lord
Chancellor was frequently referred to as the position of Lord Keeper and, by way
of example, Sir Christopher Hatton in particular was known during his time in the
position as being the Keeper of the Queens Conscience during a part of the reign of
Elizabeth 1.
In other words, the rules of equity are historically taken to be the application of the
monarchs personal power to dispense justice and to ensure that good conscience
was enforced in that way. These Lord Chancellors were bishops and therefore the
conscience with which they were concerned was more a religious conscience than
a legal conscience until the beginning of the 17th century. The conscience which
concerns equity now is a secular idea of conscience but nevertheless it remains an
elusive idea.
While Lord Browne-Wilkinson has stated the law as it exists today in Westdeutsche
Landesbank v Islington LBC, there are many reasons to comment on, and even
criticise, that decision and the direction in which the substantive law has been
pointed. As will be explored below, there may be a number of contexts in which
this standard of conscience will not be the most useful one in all contexts. In
particular, it is unclear whether or not a single standard can be created which will
cater, for example, both for commercial cases involving cross-border financial
transactions and for family cases involving rights to the home. If his Lordship did
not intend to create a single standard but rather to erect a concept which will be
applied differently in different contexts, it is not clear on what intellectual basis
that notion of conscience is to be constructed. This book seeks to map out what
this jurisdiction of conscience amounts to today.
Nevertheless, the underpinning concept of that judgment is that equity is
concerned with acting on the conscience of a defendant on a case-by-case basis.
That means equity is an ethical response which English courts will deploy in
circumstances in which other legal rules would otherwise allow a defendant to
act unconscionably. Equity will turn to the many claims and remedies considered
in this book to address the rights and wrongs of such cases. One of the more
sophisticated instruments in equitys armoury is the trust.

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General sources of law

3.4.4 Concepts of Equity in Ancient Greek Philosophy


Professor Maitland, in lectures originally published early in the 20th century, would
have made us believe that equity is founded on ancient English elements and
rejected the idea that equity was taken from Roman law. In truth, the provenance
of the English courts of equity is a mixture of ecclesiastical law and a body of law
which, as Maitland suggested, developed in terms of a line of precedent from
1557 onwards. It seems that is the most appropriate date because that is when the
common law courts and the courts of equity began to diverge most clearly when
the common law judges rejected Lord Chancellor Thomas Mores offer to reign in
his frequent issue of injunctions against decisions of common law courts if they
would mitigate the rigour of the common law.
Before that time, there were some suggestions that the idea of conscience could
be found even in the common law, as suggested by the remark conscience is
aequum et bonum, which is the basis of every law even in the ancient common law.
Nevertheless, the common law courts and the courts of equity began to diverge
markedly from the mid-16th century onwards. However, the basis of equity as a
counterpoint to the common law is not an idea which should be considered to be
simply English. There are echoes of it in the ancient Greek philosophers when,
as Douzinas tells us: Aristotle argued that equity, epieikeia, is the rectification of
legal justice nomos in so far as the law is defective. Laws are general but the raw
material of human behaviour is such that it is often impossible to pronounce in
general terms.
As Aristotle described equity in his own words (albeit in translation):
For equity, though superior to justice, is still just ... justice and equity
coincide, and although both are good, equity is superior. What causes the
difficulty is the fact that equity is just, but not what is legally just: it is a
rectification of legal justice.
In this way, Aristotle considered that equity provides a better form of justice
because it provides for a more specific judgment as to right and wrong in individual
cases which rectifies any errors of fairness which the common law or statute would
otherwise have made. The superiority of equity emerges in the following passage
which continues from the last quoted passage: The explanation of this is that
all law is universal, and there are some things about which it is not possible to
pronounce rightly in general terms; therefore in cases where it is necessary to make
a general pronouncement, but impossible to do so rightly, the law takes account
of the majority of cases, though not unaware that in this way errors are made ... So
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Jurisprudence and Legal Theory

when the law states a general rule, and a case arises under this that is exceptional,
then it is right, where the legislator owing to the generality of his language has
erred in not covering that case, to correct the omission by a ruling such as the
legislator himself would have given if he had been present there, and as he would
have enacted if he had been aware of the circumstances.
Thus, equity exists to rectify what would otherwise be errors in the application of
the common law to factual situations in which the judges who developed common
law principles or the legislators who created statutes could not have intended. It
should be noted that English judges do not quote Aristotle as an authority but for
the early judges in courts of equity it can be expected that knowledge of Aristotle
would have been a part of their education and therefore those judges are more
likely to have had ideas like Aristotles as part of the warp and weft of their attitudes
to law. For example, Lord Ellesmere held the following in the Earl of Oxfords Case:
mens actions are so diverse and infinite that it is impossible to make a general law
which may aptly meet with every particular and not fail in some circumstances.
This, it is suggested, is almost identical to the passages quoted from Aristotle
immediately above. Therefore, it would seem reasonable to argue that Aristotles
ideas have been one of the philosophical ingredients in the casserole that is equity.
What will be important in this discussion will be the extent to which equity can
be concerned to achieve justice, or whether there is some context of justice (as
Aristotle suggests) which is outside the purview of equity. So it is that we will
consider whether equity can be remodelled so as to achieve justice (in the terms
that that concept is conceived by ancient philosophers like Plato and Aristotle)
or in terms of social justice as conceived by modern social theorists. Within
this debate are potentially competing claims by human rights law and equity to
constitute the principles on which the legal system will attempt to provide for
fairness in litigation and in the dissemination of socially-agreed norms.

3.4.5 Kants Notion of Equity


The philosopher Immanuel Kant presented the following notion of equity (or
aequitas) in his The Metaphysics of Morals:
Equity (considered objectively) is in no way a basis for merely calling upon
another to fulfill an ethical duty (to be benevolent and kind). One who demands
something on this basis stands instead upon his right, except that he does not
have the conditions that a judge needs in order to determine by how much or in
what way his claim could be satisfied. Suppose that the terms on which a trading
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General sources of law

company was formed were that the partners should share equally in the profits,
but that one partner nevertheless did more than the others and so lost more when
the company met with reverses. By equity he can demand more from the company
than merely an equal share with the others. In accordance with proper (strict)
right, however, his demand would be refused; for if one thinks of a judge in this
case, he would have no definite particulars (data) to enable him to decide how
much is due by the contract.
This conception of equity does not equate entirely with equity in English law.
English equity does operate by means of judicial diktat so as to require a defendant
to act in good conscience and either to refrain from exercising some common law
right or to grant some equitable right to the claimant. However, in the example
set out by Kant in the passage quoted above, there is no reason to suppose that in
legal terms there would be any requirement on the other partners to this trading
venture to grant the claimant any greater right than he had agreed to by way of
contract. Importantly, in this sense, English equity is not concerned to act fairly
between people in the sense that everybody must be left entirely happy and have
suffered no loss. It will not seek to be fair in the general sense of that word, but
instead will tend to deal only with limited categories of act. Rather, English equity
is concerned to ensure that there has been no unconscionable behaviour but, for
example, there is nothing legally unconscionable in making a profit from someone
elses foolishness or naivety, provided that there has neither been any fraud nor
undue influence exercised over that nave fool. Therefore, the idea of conscience
which we will identify with English equity is one which is commercially aware
and which may act differently in cases involving ordinary people acting in their
private capacities as opposed to cases involving business people acting at arms
length from one another.
So, English equity is not a general means by which people can protest that they have
simply lost money or had their hopes dashed if there has not been any action by the
defendant which the courts would consider to be blameworthy or unconscionable.
What the substantive principles of equity may allow is a claim based on a form of
unconscionable behaviour which English equity does recognise. So, for example,
a valid claim recognised by the courts might be one brought by a claimant who
was induced to invest in a business venture in reliance on a representation made
to her by the other partners, or if the other partners made a secret profit from the
venture not disclosed to the claimant. In this sense, in accordance with Aristotles
view of equity, the equitable court of conscience takes priority over the strict rules
of a common law court.

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3.5 Custom as a Source of Law


Custom does not have a definite origin; it originates in different ways, societies
and times. The word custom has been defined as a rule which in a particular
district has from a long usage obtained the force of law.139 In other words, habits or
practices which a particular community or people have practiced for a long time
which becomes acceptable and binding on them become law. Customary law has
also been defined elaborately in S.82 of the Customary Courts Law 1956, Cap.32
Laws of Eastern Region of Nigeria 1963 as: a rule or body of rules which obtains
and is fortified by established usage and which is appropriate to any particular
cause, matter, disputes, issue or question. On the international scene, custom is
also a source of law; customary international law is that law which has evolved
from the practices or customs of states. The process of customary law formation
being derived from the practice of States and occasionally the practice of other
legal persons is an ongoing phenomenon and its great advantage is that it enables
international law to develop in line with the needs of time.
Custom has also been described as a mirror of accepted usage.140. In so doing it
excludes spontaneous emergence of customary law. A cautious and habitual
practice over a period of time acquires the status of customary law. Even where
a custom undergoes purification and modernization, it nevertheless is still a
custom141. Although it has been stated earlier that custom is a rule that from long
usage has obtained the force of law, the court in the case of Eleko vs. Officer
Administering the Government of Nigeria stressed the importance of the
natives of a particular community assenting to a customary law which does not
necessarily mean long usage142. A basic characteristic of customary law is its
flexibility; it changes from time to time which reflects the social and economic
conditions in a society. In Lewis v Bankole14341 Osborne CJ stated that: one of the
most striking features of West African native custom. Is its flexibility, it appears to have
been always subject to motives of expediency and it shows unquestionable adaptability
to altered circumstances without entirely losing its character. It is important to discuss
the characteristics of customary law and they include:
a.

It must be in existence. This is an important characteristic of customary


law. It must be in existence at the material time. Time is important because

139 Nigerian Evidence Act S.2 Cap. E14 L.F.N 2004


140 Owoniyi v.Omotosho (1961) 1 ALL N.L.R 304
141 Lewis v. Bankole (1908) 1 N.L.R 81; Where the court expressed interest in an existing
customary law and not that of by gone days.
142 (1931) A.C 662
143 (1908) 1 N.L.R 81 at pp. 100-101

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General sources of law

if a customary law is moribund or dead it no longer qualifies as customary


law. All other characteristics of customary law emanate from its existence.
b.

It must be custom as well as law. Custom may reflect only the common
usage and practice of the people in a particular matter without necessarily
carrying the force of law. This means that a custom may exist without
the element of coercion or sanction. John Austin of the Positive School
of jurisprudence is of the opinion that custom should be classified as
mere positive morality rather than law, his reason for this, is that law is
formal and carries sanction where it is breached. He defines law as the
command of the sovereign which is backed by a sanction. To this school
of jurisprudence, anything classified as law must have the three important
characteristics of law which are sovereignty, command and sanction.

The element of law in custom is important because it is that which carries


sanction in the event of breach. In the Nigerian context, a custom may change
to a customary law recognized by the state in the process of codification. The
implication of codifying a custom is that it renders any provision not included in
the codified document inapplicable. This was the court`s decision in the case of
Adelaja vs. Oguntayo.144 The court held that, where a custom is codified as in the
instant case where there is a registered chieftaincy declaration in respect of the
Ajalorun of ijebu-ife, any provision or requirement not contained in it remains
inapplicable and worthless.
c.

It must be acceptable. For every custom to be recognized in a society,


it must be accepted as the custom governing that area. The characteristic
of acceptability is so important and it is enshrined in the definition of
custom as a mirror of accepted usage. The acceptability of a custom
determines the duration of its existence. In other words, if a custom is too
harsh on the people, it would not stand the test of time because in no time
the people will reject it.

d.

It has an unwritten nature. Customary law is not contained in any


statute book, it arises from traditional rules of conduct governing a set
of people.

e.

Flexibility: customary law is flexible and this is possible due to its


unwritten nature. It grows and changes with the society. In the case
of Kimby and others vs. Military Governor of Gongola State and

144 (2002) 6 N.W.L.R (pt 710) 593 C.A

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others145 Karibi-Whyte, J.S.C, citing Lewis vs. Bankole with approval


stated that; one of the characteristics of native law and which provides for
its resilience is its flexibility and capacity for adaptation. It modifies itself to
accord with the changing social conditions.
f.

Duffus, J also made a similar point in the case of Alfa and others vs.
Arepo146 when he said that customary law is not however a static law
and in my view, the law can and does change with the times and the rapid
development of social and economic conditions.

g.

It should be universally applicable within the area of acceptability.


The court in deciding the case of Ojisua vs. Aiyebelehin147 gave detailed
characteristics of custom.

3.5.1 Establishing Customary Law


Customary law can be established before a court by proof and by judicial notice.
Proof of customary law can either be in courts other than a customary and area
courts. The Evidence Act148 has made specific provisions as to proving a customary
law in a court other than a Customary Court.
S.14(1) of the Evidence Act states that: a custom may be adopted as part of law
governing a particular set of circumstances if it can be noticed judicially or can be proved
to exist by evidence. In the case of Egharevba vs. Oruonghae149 the court held that
custom is a question of fact which should be proved in cases where it has not assumed
.sufficient notoriety or been judicially noticed and the burden of proving a custom shall
lie upon the person alleging its existence.150
S.14 (2) a custom may be judicially noticed151 by the courts if it has been acted upon
by a court of superior or co-ordinate jurisdiction in the same area to an extent
which justifies the court asked to apply it in assuming that the persons or the class
of persons concerned in that area look upon the same as binding in relation to
circumstances similar to those under consideration. Therefore, a single decision of
145
146
147
148
149
150
151

(1988) 2N.W.L.R (pt 77) 445


(1963) W.N.L.R 95
(2001) 11 N.W.L.R (PT 723) 44 C.A
Evidence Act cap E14 LFN 2004
(2001) 11 N.W.L.R (pt 724) 318 C.A
Ogun v Asemah (2002)4 N.W.L.R (Pt. 756) at 209
The courts in Nigeria had always taken the position that a custom could be judicially
noticed only after frequent proof in the courts, Afarinde v Ajiko (1940)6 WACA 108.

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General sources of law

a higher court is sufficient to warrant the taking of judicial notice of a custom. In


Rabiyu vs. Abasi it was held that a customary law could be judicially noticed on
the basis of a single decision of a court of superior jurisdiction152.
S.14 (3) is to the effect that where a custom cannot be established by judicial
notice, it may be established by proof.
Therefore, unless a custom is judicially noticed, the party or person contending its
existence has to prove it as a fact that is proving its existence by evidence153. Also by
virtue of the Evidence Enactments, native chiefs or persons with special knowledge
may be called to express their opinion as evidence on a customary issue and it
shall be relevant.154 Published books that discuss the custom of the people are also
relevant so far as they are recognized by the natives as legal authorities. Such books
or manuscripts can be relied upon by the court if it has been tendered as evidence
before it. In other words, the court cannot rely on such books or manuscripts
if they do not form part of the evidence before it in a given matter. In the case
of Adedibu vs. Adewoyin155, the court held that where a court in its judgment
relies on a book which was not tendered in evidence during the proceedings, then
the court did not act in compliance with S.58 of the Evidence Act. Nevertheless,
there are some exceptions where this rule will not apply: They include decisions
of the Federal Supreme Court156 and those of the Judicial Committee of the Privy
Council157. Generally speaking, native law and custom is to be strictly proved,
therefore an uncorroborated evidence of the person who asserts the existence of
a custom will not be sufficient to prove it. The Supreme Court has held that it is
desirable to have some evidence apart from that of the party asserting in proof of
customary law158.

3.5.2 Proof of Custom before Customary and Area Courts


The Evidence Law in force in Anambra, Cross River, Imo and Rivers States
provides that the law does not apply to judicial proceedings in customary courts.159
The Evidence Ordinance which applies in Bendel, Ogun, Ondo and Oyo States
152
153
154
155
156
157
158

(1996) 7 SCNJ 53 at 56
Evidence Law (Lagos Laws 1973 Cap.39)
Evidence Law ( Lagos Laws 1973, Cap.39) SS. 56(1) and 58
(1951)13 WACA 191
Suberu v Sunmonu (1957) 2 F.S.C 33; Adeseye v Taiwo (1956) 1 F.S.C 84
Oyekan v Adele (1957)1 W.L.R 876
Oba R.A.A. Oyediran v Oba Alebiosu 11 (1992) 7 S.C.N.J. (Pt. 1) p.187 at 193-4;
Lipede v Sonekan (1995) 1 S.C.N.J. 184 at 200-1
159 EN LAWS 1963, Cap.49, s.1(2)(c)

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provides that the Ordinance does not apply to judicial proceedings in Customary
Courts unless an order made under the Ordinance provides otherwise.160 In the
case of Ababio vs. Nsemfo, the West African Court of Appeal stated that, there
was no ground for extending the application of the general rule requiring proof of
custom to Native Courts of which the members are versed in their own customary
law. The court further stated that if the members of a Native Court are familiar
with a custom, it is certainly not obligatory upon it to require the custom to be
proved through witnesses161.
Furthermore, it is imperative to note that customary courts are not empowered
to administer adjectival common law that is the doctrine of judicial precedent is
not applicable in a customary court and the existence and content of customary
law need not be proved before a customary court. However, the presumption that
customary courts should be seized with the custom of the area does not apply to
upper courts and courts exercising appellate jurisdiction over customary courts.
It should be noted that even if all the requirements of a custom being enforceable
has been met, it will not be enforced if it is repugnant to natural justice, equity and
good conscience or contrary to public policy. Although the clause, repugnant to
natural justice, equity and good conscience has not been explained in detail by the
court but from their various decisions, it gives a clue on its purpose and meaning.
Its meaning is to the effect that the intention of the clause is to invalidate barbarous
customs162 and Lord Atkin in Eshugbayi Eleko vs. Officer Administering the
Government of Nigeria163 stated that a barbarous custom must be rejected on the
ground of repugnancy to natural justice, equity and good conscience. Therefore
it appears that such a custom is repugnant if it is uncivilized but it does not mean
that a custom will be termed repugnant if it does not conform to the standard
behaviour of communities with advanced social behaviour for example the English
community.164

3.6 Judicial Precedent


The doctrine of precedent is almost as old as the English common law. Right
from the early days, judges listened to citations of earlier decisions and they were
160
161
162
163
164

Nigeria Laws 1948, cap 63 s.1(4)(c)


(1947) 12 W.A.C.A 127 at p.128.
Laoye v Oyetunde(1944) A.C 170
(1931)A.C 662 at p.673
In Lewis v Bankole (1908) 1 N.L.R. 81 at pp 99-102, the full court of the S. C. rejected
the view of the trial judge that because a custom does not form part of the English

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considerably influenced by them although they were not bound to follow them.
Although it is hard to pin down the origin of binding precedent in the English
court but it became applicable and had a prominent place in the common law
jurisdiction of courts.
Judicial precedent is another source of law otherwise known as case law. It is based
on the concept of stare decisis. The theory of case law is that judges do not make
laws but merely declare and apply them to the facts before them in a particular
case. But in practice, it is not completely true because the judges make laws and
amend them through their decisions and sometimes widen and extend a rule of
law. A statement made by a judge in a case can become binding on later judges
and can become the law for everyone to follow. The realist school of thought with
Oliver Wendell Holmes as its chief Proponent, view judicial precedent as their
main cardinal point of ascertaining what law is. The emphasis of this school of
thought appears to be on ground policy judgment rather than conceptualism and
generalities. The lead focus of the realist movement is the desire to discover how
judicial decisions are made which of course would involve the down-playing of
established judicial rules and the law as it is in textbooks and discover other legal
and non legal factors that lead to judgments. The jurists are of the view that the law
is not based on abstract set of legal rules but on what the court has pronounced. In
their opinion, certainty and definiteness in law is very necessary before a person
can enter into business dealings and as such, the only way it can be ascertained is
by looking at decided cases.165 Stare decisis principle which judicial precedent is
based on means that like cases should be treated alike. The general rule is that all
courts (courts below) are bound to follow decisions made by higher courts in the
hierarchy and appellate courts are usually bound by their own previous decisions
like was in the case of Young v Bristol Aero Plane Co. Ltd166, the English Court
of Appeal held that it was bound by its own decisions but it identified three
exceptions to this general rule in which it could overrule itself, they are: decisions
made per incuriam, issues on which there are conflicting decisions of the Court of
Appeal and decisions impliedly overruled by the House of Lords.
In the case of Achebe v Nwosu167, the court explained the principle of stare decisis
in the following words:
where a higher court in the hierarchy of courts has made a decision in
a case, its decision becomes a precedent which must be followed by lower
165 doctrine of equity, it becomes invalid by virtue of the repugnancy test.
166 (1944) KB. 718
167 (2003) 7 N.W.L.R (pt 818) 103 C.A; Odigbo v Abu (2001) 14 NWLR (pt 732) 45

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courts where the principle of law or rule of court applied in the decision of
the higher court is applicable in the case before the lower court or where
the facts of the earlier case are the same as the facts of the case before the
lower court
The principle of stare decisis is binding on lower courts even if the superior court
has reached its decision per incuriam except the principle enunciated in any
decision of the Supreme Court is not relevant or applicable to the issue or issues
arising for determination in the lower courts.168 In the case of Omega Bank Plc
vs. Government of Ekiti State,169 the Court of Appeal held that the bindingness of
the judgments of superior courts on lower courts is determined by the facts and
issues pronounced on by the superior courts. The facts and issues decided by the
superior court must be on all fours with the issues considered by the lower court.
Also, in the English case of London Tramways v London County Council,170 the
House of Lords which is the highest court in the British legal system held that
it was bound by its own decisions in the interest of finality and certainty in the
law. However, a practice statement made by Lord Gardiner L.C in 1966 on behalf
of himself and the Lords of Appeal announced that in the future the House of
Lords, while treating its former decisions as normally binding, would be ready to
depart from them when it appears right to do so.171 According to J.M Elegido it is
noteworthy to point out that in practice the power to overrule should be used with
great caution, the freedom to depart from a previous decision should be exercised
sparingly, a decision should not be overruled if it is impracticable to foresee the
consequences of overruling or if there ought to be a comprehensive reform by
legislation; a decision ought not to be overruled merely because it is wrong, there
should be additional reasons justifying that step, conversely a decision should
be overruled if it causes great uncertainty or is unjust or outmoded.172 The issue
of when the Supreme Court can overrule itself was stated in the case of UGWU
vs. ARARUME,173 where the Supreme Court held that it can overrule its previous
decision which was given per incuriam or wrongly. The Supreme Court further
held that it can only follow its previous decision which was decided on generally
similar facts.
168 Dairo v U.B.N PLC (2007) 16 N.W.L.R (pt 1059) 99 S.C; Alaye v State(2007) 16
N.W.L.R (pt 1061) 483 C.A
169 (2007) 10 NWLR (pt 1061) 445 C.A
170 (1898) AC 375
171 Practice statement ( Judicial Precedent) (1966) 1 WLR 1234
172 The Law Lords (1982) pp.156-67
173 (2007) 12 N.W.L.R (pt1048)367 S.C

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General sources of law

In Uttih vs. Oniyiowe174Bello C.J.N, observed that, for the Supreme Court to
overrule one of its own past decisions, the decision should be such that either it
was given per incuriam or it was manifestly erroneous or that rigid adherence to it
may perpetuate injustice in a particular case and also unduly restrict the proper
development of the law.
When it is said that a court is bound by a decision, it means that the judge is bound
by the ratio deciendi of a case175 not necessarily by the specific words used in the
judgment. As Oputa, J.S.C said:
it will be dangerous to consider any pronouncement of any court even the
supreme court in vacuo and without reference to the particular facts of the
cases in which these pronouncements were made.
Basically, the pronouncement of a judge can become a binding precedent
depending on two main factors. They are:
-

It must be made by a court of sufficient seniority, the judges in the lowest


tiers of decision making (often called courts of first instance) are not
allowed to issue binding precedents, it is the higher courts which issue
binding rulings and the lower courts must follow them.

The pronouncement must have formed the ratio decidendi of the case
(the reasoning behind the decision). The reasoning must be a matter
pertaining to the law rather than a factual decision. It must not be obiter
dictum; that is something said either about the law or the facts of the case
which is by the way. It is the ratio decidendi that is binding and it will
comprise the legal principles which are necessary to solve the problem
before the court.

Precedent has a very important role, it ensures certainty and consistency and
logical progression in the development of the law.
In determining the ratio decidendi of a case, the court usually considers the
following factors:
a.

the reason for the decision as stated by the judge;

174 (1991)1 N.W.L.R (pt166) at pg 205


175 In Odigbo vs. Abu (2001) 14 NWLR (pt732) 45 S.C, the court defined ratio deciendi
as the principle of law upon which a particular case is decided and the effect of this
is to serve as the basis for the doctrine of judicial precedent in subsequent cases with
similar facts.

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Jurisprudence and Legal Theory

b.

the principle of law stated by the judge as that on which the decision was
based and the actual decision in relation to the material facts;

c.

In addition, the court may also consider the interpretation of the case in
any later case determined before the instant case.

Determining the ratio decidendi of a case is not always an easy task. It is sometimes
difficult to find the ratio decidendi of a case determined by a court consisting of
more than one judge. Lord Reid explained his experience when attempting to find
the ratio decidendi of a case in Scrutton Ltd v Midland Silicones Ltd17674, he said if
I had to try, the result might depend on whether or not I was striving to obtain a narrow
ratio. Where the court is divided and the majority judgment is consistent with
one another even though each majority judge relies on a legal principle different
from that relied upon in the majority judgment constitute the rations decidendi of
the case177. Basically, where two reasons are given for a judgment, they may both
constitute the ratio decidendi for that judgment. Where two reasons appear to have
been given, the ratio decidendi can only be that reason which is consistent with
the facts and the claim before the court.178 Ratio decidendi is tied to the material
facts and not just facts which are peripheral or intangible. It is the duty of the
court to examine the totality of the case and arrive at the appropriate or correct
ratio decidendi in the case.179 Therefore it is imperative to note that the decision
of a court is not a binding precedent for any court in any subsequent case if the
cases are different in terms of material facts because a case is decided on the facts
presented to the court; it is not decided in vacuum. Accordingly, a ratio decidendi is
based on the facts of a case. This implies that a ratio decidendi in one case may not
be applicable in another case where the facts are quite different but it will apply if
it is otherwise.180
It is important to distinguish between ratio decidendi and obiter dictum. In the case
of Omega Bank Plc v Government of Ekiti State181, it was held that a ratio decidendi
is a principle of law upon which a particular case was decided. It can be defined
as a legal reasoning that led to the courts decision, the effect of which is to serve
as a judicial precedent in subsequent cases with similar facts. It went further to
state that in law, ratio decidendi has a binding effect for the purpose of stare decisis
176 (1962) A.C 446 at 477
177 Jacobs V L.C.C.(1950)A.C 361 at p.369
178 Per Karibi-White JSC in Aeroflot Soviet Airlines V U.B.A (1986) 3 N.W.L.R (pt27)188
at 199.
179 Adetoun Oladeji(Nig) Ltd. V N.B Plc. (2007)5 N.W.L.R (pt 1027)415 SC
180 Idoniboye-Obu V. N.N.P.C (2003)2 N.W.L.R( pt 805)589 S.C
181 (2007) 16 NWLR (pt 1061)445 C.A

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General sources of law

but obiter dictum has no legal force as to make it binding. In the case of Buhari vs.
Obasanjo,182 the court stated its view on what serves as precedent for lower courts
in the decision of higher courts. It held that it is the ratio decidendi of a superior
court that is binding on a lower court and Nsofor, J.C.A expressed his views thus,
what I am trying to say is this: the decisions by the courts whether of the Supreme
Court or the Court of Appeal decide not rules but principles. And there is a yawning
gap between a rule and a principle. Rules determine the outcome of a dispute in one
particular way while a principle merely inclines the outcome one way or the other. A rule
makes certain legal results depend upon the establishment of certain factual situation
stipulated in the antecedent part of the rule. Rules therefore apply in all or nothing
dimension. Therefore if in a particular case, the facts in which a decision of a superior
court is made are different from the set of facts of a case before an inferior court, the
lower court shall not be bound by the decision of the superior court based on different
set of facts. In other words, if the case of the lower court is distinguishable from the case
of the superior court, the inferior court is not bound. Put in another form, it is the ratio
decidendi of the decision of the superior court that is binding, nothing more, nothing
less. Whereas an obiter dictum is just a by the way statement made by a judge. The
Court of Appeal in the case of Ageh v. Tortya183 gave the meaning of obiter dictum
as: words or an opinion entirely unnecessary for the decision of a case. It is a remark
made or opinion expressed by a judge in his decision in a case by the way, that is
incidentally or collaterally and not directly upon the question before him, or upon
a point not necessarily involved in the determination of the case or introduced by
the way of illustration or analogy or argument. Although as a general rule, obiter
dictum in not binding but there are occasions when it may have a binding effect184.
Basically when it has been repeated a number of times by the Supreme Court or
a court which is highly recognized in the judicial hierarchy of the legal system it
becomes binding. For example an obiter dictum of the Supreme Court could with
time, assume the status or metamorphose into a ratio decidendi, thus influencing
the decisions of inferior courts.185 Nnaemeka-Agu J.S.C, in the case of Ifediorah &
Ors. v. Ume & Ors.186 held that although what is ordinarily binding in a case is the
ratio decidendi and not the obiter dictum, yet an obiter dictum by the ultimate court
on an important point of law is one which is binding on and followed by all lower
courts. He went further to say that a good deal of the important pronouncements
182 (2005) 2 N.W.L.R (pt 910) 241
183 (2003) 6 N.W.L.R (pt 816)385 C.A
184 Ferodo Ltd v Ibeto Ind. Ltd (2004) 5 NWLR (pt866) 317 SC
185 Bucknor-MacLean V Inlaks Ltd (1980) 8-11 S.C 11 at 26; Triefus and co. Ltd V Post
Office(1957) 2 K.B 352 at 360
186 (1988)2 N.W.L.R (pt. 74) 5

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Jurisprudence and Legal Theory

of the Supreme Court in Bronik Motors Ltd and another v. Wema Bank Plc187 was
obiter, yet it was binding on the Court of Appeal and all other courts lower down
in the judicial hierarchy until the law was changed in Akinsanya v. UBA Plc.188
Therefore, an obiter dictum becomes binding when it becomes so notorious. There
is also a distinction between obiter dictum, which is an irrelevant statement made
by a judge about the case and judicial dictum which is a relevant statement to some
collateral matter but not forming part of the ratio. It would appear that the latter
would carry more weight than the former.

3.6.1 The Doctrine of Judicial Precedent and the Hierarchy of Courts


As a common law doctrine, judicial precedent applies to those courts that are
empowered to administer adjectival common law of which the doctrine forms
part. Therefore, Customary Courts, Sharia Courts of Appeal and Area Courts are
not empowered to apply adjectival common law. In Nigeria, there exists a settled
hierarchy of courts for the effective operation of judicial precedent. As a general
rule, under the doctrine of stare decisis, a court is bound to follow decisions of
a higher court in the hierarchy except the decision of the higher court has been
overruled. Also a lower court is not bound by the decision of a higher court where
that decision is in conflict with a decision of another court which is above such
higher court in the hierarchy (a lower court is entitled to decide which of the
two conflicting decisions of a higher court or of higher courts of equal standing
it would follow). It is important to note that a binding precedent can be abolished
by legislation.189
The Supreme Court of Nigeria is the highest court in the hierarchy of Courts
which exists only at the federal level; its decisions are binding on all other courts
to which the common law doctrine of binding precedent applies. The Supreme
Court replaced the Judicial Committee of the Privy Council as the highest court in
Nigeria. Therefore, the previous decisions of the Privy Council should be treated
same as that of the Supreme Court. The doctrine of stare decisis is fully entrenched
in the Nigerian jurisprudence to ensure certainty of the law. Thus, it would be
wrong for the judge of a higher court, before whom a decision of the Supreme
Court is cited to deliberately and consciously refuse to apply it because he believes
that the Supreme Court is wrong in its decision in the case. In the case of Dalhatu
187 (1983)1 S.C.N.L.R 296
188 (1986)4 NWLR (pt 35)273
189 Lakanmi V Attorney- General (West) (1971) 1 U.I.L.R 201; Federal Military
Government (Supremacy and Enforcement of Powers) Decree 1970 (No.28 of 1970)

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General sources of law

v. Turaki,190 it was stated that the doctrine of judicial precedenct otherwise known
as stare decisis is rooted in Nigerian jurisprudence and it is a well settled principle to
judicial policy which must be strictly adhered to by all lower courts. While lower
courts may depart from their own decisions reached per incuriam, they cannot
refuse to be bound by decisions of higher courts even if those decisions were
wrongly decided. The implication is that a lower court is bound by the decision of
a higher court even where that decision was given erroneously.
Next in the hierarchy of courts is the Federal Court of Appeal, it is bound by the
decisions of the Supreme Court and its own previous decisions but subject to
some exceptions:
a.

the court is entitled and bound to decide which of two conflicting


decisions of its own it will follow;

b.

the court is bound to refuse to allow a decision of its own which though
not expressly overruled cannot in its opinion stand with a decision of the
Supreme Court of Nigeria;

c.

The court is not bound to follow a decision of its own if it is satisfied that
the decision was given per incuriam.

This practice is that of the English Court of Appeal and it is to be adopted in our
Nigerian courts. The following cases outline the applicability of judicial precedent
in the Court of Appeal: Young vs. Bristol Aeroplane Company and Abbelles
vs. Gbadamosi.191 The Federal Court of Appeal is bound by the decision of the
Judicial Committee of the Privy Council given before the abolition of appeals to
the Committee because it was the highest court in Nigeria at that time.
Next in the hierarchy is the High Court which is bound by the decisions of the
Supreme Court and the Federal Appeal Court but with respect to state matters
(matters within the legislative competence of a state), the High Court of a state
does not form part of the hierarchy of courts for any other state, and as such the
decisions of the High Court on state matters cannot be binding on any other court
in another state.
All other courts like the Magistrate Court of a state are bound by the decisions of
the High Court of the state by virtue of their position in the hierarchy of courts
to which the doctrine of judicial precedent applies. District Courts of each state
are bound by the decisions of the High Courts and District Courts are not bound
190 (2003)15 NWLR (pt843 )310 S.C
191 (1944) K.B 718; (2003) 13 N.W.L.R (Pt. 838) 512 C.A

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Jurisprudence and Legal Theory

by their previous decisions. Customary Courts and Area Courts are not bound by
their previous decisions.
Customary Courts and Area Courts do not apply the doctrine of judicial precedent.
The Sharia Court of Appeal of Northern states are also not bound by this principle
because they are not empowered to administer adjectival common law but by
virtue of appellate system whereby decisions of Sharia Courts can ultimately reach
the Supreme Court, the Sharia courts should follow the decisions of the Supreme
Court. The Sharia Court is empowered to apply Moslem law of the Maliki School
as customarily interpreted at the place where the trial at first instance took place.192

3.7 International Law as a Source of Law


Historically speaking, international law has been disregarded by many jurists
and legal commentators. Their argument is that international law should not be
regarded as law. Proponents of this view have argued that both by hypothesis and
definition, there can be no law governing sovereign states. In support of this view,
it has been argued that there is no international executive to execute it and no
effective judiciary to resolve any dispute about it.
John Austin of the Positive school of legal thought has been in the fore front of this
attack on international law, he regards international law as mere positive morality,
according to him, laws properly so called are a species of commands, every sanction
properly so called is an eventual evil annexed to a command And hence it eventually
follows that the law of joining between nations is not positive law, for every positive law
is set by a given sovereign to a person or persons in a state of subjection to its author.
The law obtaining between nations is (law) improperly so called set by general opinion.
The duties which it imposes are enforced by moral sanctions by far on the part of nations
or by fear on the part of the sovereigns, of provoking general hostility and incurring its
probable evils in case they should violate maxims generally received and respected.
Although there are many critics of international law as law, what matters is not
whether the international system has a legislative, judicial or executive branches
corresponding to those we are accustomed to in our municipal situation, what
matters is whether international law is reflected in the policies of nations and
the relations between nations. The question is not whether there is an effective
legislature, it is whether there is law that responds and corresponds to the
changing needs of disputes resolution in an orderly fashion and most importantly,
the question is not whether law is enforceable or even effectively enforced; rather
192 Sharia Court of Appeal Law ( Northern Nigeria Law cap 122, S.14) 1963

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General sources of law

whether law is observed, whether it governs or influences behaviour, whether


international law reflects stability and order.
International lawyers do not need any further justification for categorizing their
subject as law, this is principally because today, every sovereign state recognizes
that international law exists and states see themselves as under an obligation
to observe international law. Most countries or state have provisions in their
respective Constitutions expressly recognizing the existence and in some case the
superiority of international law over their own national laws.
In the case of Paquette Habena,193 Judge Gray declared that international law is
part of our law and must be administered by the court of justice of appropriate
jurisdiction as question of rights arise. Also Article 25 of the Federal Republic of
Germany 1949 provides: the general rules of international law shall be an integral
part of federal law, they shall take precedent over the laws and directly create rights
and duties for the inhabitants of the Federal territory of Germany. The Nigerian
Constitution also recognizes the reality of international law.194 In the case of
Abacha & Ors. v Gani Fawehinmi,195 the Supreme Court stated that there should
be adherence to international law.
Basically, international law governs states; it also governs relations between
international organizations. According to Ian Brownlie, international law is a body
of rules that governs the relations between states. International law is effective
in the sense that it is based on common self interest and necessity; it ensures
orderliness and stability on the international scene.

3.7.1 Sources of International Law


Sources of international law relate to where the rules of international law emanate
or originate. Although international law does not possess formal institutions that
are responsible for law creation, there are recognized and accepted methods by
which legal rules come into existence and they form the sources of international
law. There are material sources of international law and formal sources, it is
important to distinguish between the both of them. The material source relates to a
document in which the rules are set out, this may be a treaty, a Resolution of the UN
General Assembly, a proposal of the UN International Law Commission, a judicial
decision, a restatement by a learned body or even a statement in a textbook. When
193 (1900) 175 US 677
194 S. 12(1) C.F.R.N 1999
195 (2000) 6 NWLR (Pt660) 228

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Jurisprudence and Legal Theory

identifying a material source, no account need to be taken of the legal authority of


the textual document; for instance, a treaty which has never come to force at all
and is thus not binding on anyone as a treaty may still be the material source for a
rule which has acquired the force of binding law by another route.196 The authority
for the rule of law binding on states is determined by the formal source of the rule,
and the generally recognized formal sources of international law are identified in
Article 38 of the Statute of the International Court of Justice, it provides that:
1.

The Court whose function is to decide in accordance with international


law such disputes as are submitted to it shall apply-

a. International Conventions whether general or particular, establishing


rules expressly recognized by the contesting states;
b.

International Custom as evidence of a general practice accepted as law;

c.

The general principles of law recognized by civilized nations;

d.

Subject to the provisions of article 59, judicial decisions and teachings of


the most highly qualified publicists of the various nations as a subsidiary
means for the determination of rules of laws.

3.7.2 International Convention or Treaties


International Convention or treaty is one of the most important sources of
international law; it can also be an international Agreement, Pact, General
Act, Charter, Declarations, Covenants e.t.c Treaties are the creation of written
agreements whereby states participating bind themselves legally to act in a
particular way or to setup a particular relation between themselves. If a rule is laid
down in a Treaty, it is binding on the states parties to that Treaty and the Treaty
becomes the material source and the formal source of the rule. Treaties are divided
into two categories:
a.

Law making category, which is intended to have a universal relevance.

b.

Treaty contracts which applies to two states or a small number of states


only. A state can show its acceptance of a treaty either by signature,
ratification or accession. Treaties are either bilateral that is between two
countries or multilateral when it involves more than two countries and

196 For example the Montevideo Convention of 1933 on the Rights and Duties of States is
regularly referred to as containing a convenient legal definition of a state, and of the
conditions which must be met for that status to be acquired, despite the fact that for
want of ratifications it never came into force as a Treaty.

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General sources of law

Treaties are so important on the international scene that it precedes


customs. Through Treaties, states can create certain and specific
obligations, they are done consciously and deliberately which makes it
more likely to be respected. An important characteristic of a treaty is that
it must be in a written form. The contents and interpretation of treaties are
regarded as principal sources of international law and its interpretation
must be in consonance with Article 31 of the 1969 Vienna Convention on
the Law of Treaties197 and must be given literal interpretation. To ensure
the applicability of Treaties, they are governed by a number of principles
and they include:
a. Treaties are voluntary, i.e. no state can be bound by a Treaty without
having given its consent to be bound by one of the methods
recognized as effective in international law. In other words, only
state parties to the Treaty are bound by its terms except in cases like
the delimitation of territorial boundaries.
b. Once a state has signified its consent to a treaty, it is bound by its
terms vis--vis all other parties to that treaty.198
c. When a Treaty codifies an existing customary law, as was the case
with much of the Vienna Convention on Diplomatic Relations and
the Vienna Convention on the Law of Treaties, its substance may be
binding on all states because the states that are parties to the treaty
are bound by the Treaty in the normal way. Also states that are not
parties to the Treaty cannot be said to be bound by it but because the
Treaty codifies existing customary law. These states are bound by the
same obligations as expressed in the Treaty, only this time because
they are rooted in customary law.
The importance of Treaties in international law was exhaustively examined by the
PCIJ in the Wimbledon`s case199 where it was held that article 380 of the Treaty
of Versailles 1990 to which Germany was a party takes precedent over an alleged
customary rule. An important aspect of a Treaty is that it creates duties and rights
that are clearly defined and its essence is to prevent the parties or states involved
197 Article 31 states that, a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light
of its object and purpose
198 Nicaragua V U.S.A (1986) I.C.J Rep. 14; North Sea Continental Shelf Cases (1929)
I.C.J Rep 44.
199 Wimbledon (1923) PCIJ Rep. Ser. A no.1

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from interfering with member states affairs. States are to respect their own parts
of the agreements (pacta sunt servanda)200 and must treat it with good faith; this
is provided for in article 31 of the Vienna Convention 1969. It is noteworthy to say
that a Treaty provision precedes other source of international law and so once there
is a Treaty provision on a particular issue, its applicability cannot be contested.

3.7.3 Custom as a Source of International Law


Custom is an important source of law both at the national and international level.
On the international level, custom is the practice of states; it forms a great part of
the rules that govern states and other international legal persons.
Article 38(1b) of the Statute of ICJ states that the courts in deciding cases should
apply international custom as evidence of international practice accepted as law.
In other words, the statute defines custom as a general practice by states which is
accepted as law.
Customary international law results from a general and consistent practice of states
followed by them from a sense of legal obligation. It mirrors the characteristics of
the decentralized international system; it possesses an attribute of democracy in
the sense that all states share in the formation of new rules.

3.7.4 Elements of Customary International Law


1.

State practice: the practice of states must be both general and consistent
and followed by a states sense of legal obligation. The rule is that the
state which relies on an alleged custom must demonstrate to the courts
satisfaction that such a custom has become so established as to be legally
binding on the other state.

2.

Consistency of practice: a customary international law must be


reasonably consistent; it must possess constancy and uniformity (that
is there must be an existing frequency of repetition as well as a time
period over which the practice has occurred between states). In the
famous Assylum case201 between Columbia and Peru which involved the
application of a local standard of custom, the ICJ expressed its views
about the consistency of custom when it stated that the party relying

200 Pacta sunt servanda meaning agreements must be kept./Art. 26 Vienna Convention on
the Laws of Treaties.
201 1950 I.C.J Rep. 266

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on custom must prove that the custom is established in such a manner


that it has become binding on the other party and such a custom must
be in accordance with constant usage. However, there need not be total
consistency. This criterion is satisfied if there is substantial, rather than
complete consistency in the practice of states.
3.

In the Anglo-Norwegian fisheries case202, it was held that the degree of


consistency required may vary according to the subject matter of the
rule in dispute. Another point to consider is that it might sometimes be
difficult to determine a customary law in a particular field where there
is no practice at all based on the reason that such a practice is new. For
instance when the first satellites were launched into space and the idea
of landing on the moon, a lot of questions were asked to determine how
such incident can be governed, some questions were: does a satellite in
orbiting the earth infringe the sovereignty of the states whose territory it
flew over? Were celestial bodies open to appropriation and sovereignty in
the same way as unoccupied territories on earth? These questions were
solved by the creation of an international Treaty (Treaty on Principles
Governing the Activities of States in the Exploration and use of Outer
Space including the Moon and other Celestial Bodies).203

4.

Generality of practice: a customary practice should be common to a


significant number of states. That is such a customary law should be fairly
general to some states because all states need not participate before a
general practice becomes law.204 In West Rand Gold Mining Company
V The King,205 the English court laid down the rule that it must be
proved by satisfactory evidence that the alleged rule is of a nature that
has been so widely and generally accepted that it can be hardly supposed
that any civilized state can repudiate it. The best evidence is the proof
of state practice, ordinarily by reference to official documents and other
indications of government action. In Principles of Public International
Law, Ian Brownlie lists the following sources as evidence of custom: the
material sources of custom are numerous and they include the following;
diplomatic correspondence, policy statements, press releases, the opinion
of official legal advisers, official manuals on legal questions, (examples are
manuals of military forces e.t.c.), comments by governments on drafts

202
203
204
205

(1955)1I CJ Rep 116


(1967), 610 UNTS, p 205
North Sea Continental Shelf Cases (1969) ICJ Rep. pg 4
(1905) 2 KB pg 391

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produced by international law commission, state legislation, international


decisions, recitals in treaties and other international instruments and
also the practice of international organs and resolutions relating to legal
questions in the United Nations General Assembly.206 It is noteworthy
to state that apart from the general uniformity, and consistent state
practices, the states must recognize it as binding upon them as law, they
must see it as obligatory rather than merely convenient. The obligatory
nature of the practice is called opinio juris. In the lotus case207 the PCIJ
(Permanent Court of Justice predecessors of the International Court
of Justice) emphasized that opinion juris is an essential element in the
formation of customary law, usually opinion juris is borne out of a practice
that evolves among states under the impulse of economic, political or
military demand: This stage may be regarded as being imposed by social
or economic or political needs, it is called opinion necessitatis and if at
this stage the customary rule does not encounter strong and consistent
opposition from other states it crystallizes and becomes opinio juris, that
is obligatory on the states.
Some examples of customary rules based on opinio necessitatis that has turned into
opinion juris are: the rules on the continental shelf where each state has exclusive
jurisdiction over the natural resources of the subsoil and the seabed of the
continental shelf beneath the high seas but contiguous to its coast. Also in relation
to outer space,208 whereby the outer space being open to all for exploration became
a customary law after a set of rules were laid down concerning the space which was
unopposed and indeed became universally accepted. Therefore, there is no doubt
that custom has an important role both in national laws and in international law;
custom is inevitable, it is dynamic and a great guide for states actions in dealings
amongst themselves.

206
207 The Lotus Case ( France V Turkey)1927 PCIJ Series A. NO 10
208 Before 1957, when the first rockets and satellites were launched by the US and U.S.S.R,
each state had a sovereign right over its own portion of outer space. But as states
surrendered to the technological superiority of the US and USSR, the UN General
Assembly approved a number of resolutions together with the 1979 agreements
governing the activities of states on the moon and other celestial bodies, they laid down
a set of rules which became part of customary law.

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3.8 General Principles of Law


Article 38(1) (c) provides that, the court may consider the general principles of
law recognized by civilized nations. There has been a controversy as to the actual
meaning of the phrase, some jurist are of the view that the subsection authorizes
the international court to make use of relevant municipal law principles accepted
by most civilized nations where relevant in the determination of dispute
referred to it. The term civilized nations is now out of place but at the time it
was clearly included inasmuch as some legal systems were then regarded as
insufficiently developed to serve as a standard of comparison. The Roman Statute
of the International Criminal Court by the implication of its words, regard general
principles as principles derived from municipal laws of legal systems.209 While
others notably the subject writers are of the view that the phrase refers to the
principles of international law. International lawyers argue that its inclusion adds
nothing to the existing rules and principles of international law.
Despite all the arguments about the meaning of the phrase enshrined in
subsection (1c) of Article 38 of the ICJ statute, it is imperative to explain that
the purpose of the phrase is to ensure that international law includes rules and
principles common to all legal systems because such rules are part of the structure
of the law. The general principles of laws recognized by civilized nations include
both procedural and administrative rules that are inherent in every legal system.
The phrase was inserted in the statute not to create arguments but to provide a
solution in cases where treaties and custom provide no guidance otherwise the
court might be unable to decide some cases because of the gaps in treaty law and
customary law. Although some jurists are of the view that the general principles
are accumulated from national or municipal laws of states but this cannot be
completely true because not all the general principles applied in international law
stem from them, some are based on natural justice common to all legal systems
such as the principles of good faith,210 estoppel and proportionality. Whatever
maybe the validity of each argument, the fact remains that PCIJ and the ICJ have
on occasions applied certain principles of law which they regard as generally
209 Article 21(1c) of the Roman Statute of the International Criminal Court.
210 In the Nuclear Tests Case (Australia v France) judgment of 20th December 1974.(ICJ
rep.1974, 268, para. 46) the court held that one of the basic principles governing the
creation and performance of legal obligation, whatever their source, is the principle of
good faith. Trust and confidence are inherent in international cooperation in particular
in an age when this cooperation in many fields is becoming increasingly essential.
Reference should also be made to article 26 of the 1969 Vienna Convention on the Law
of Treaties.

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accepted by the members of the international society. Thus in the Eastern Green
Land case between Denmark and Norway,211 the PCIJ applied the principal law
doctrine of estoppel, the same principle was also applied in the case of the Temple
of Preah Vihear case.212
Another generally recognized principle the court applies is the right of legal
persons to go to court for settling disputes and also the right to be heard by a court
before judgment is pronounced. Often times, it has been emphasized by the court
in cases where one party has not participated formally in its proceeding with the
result that the court takes it upon itself to consider all the points that the absent
state would have raised.213 Another general principle the court applies is that a
claimant is entitled to receive compensation for proven injury.214
Principles of equity such as fairness and justice are also applied by the court in
determination of cases, they have long been considered to constitute a part of
international law.
It is important to also mention that although some general principles of law are the
combination of practices familiar with states but however not all general principles
of law in some states can be said to be international law. In the case of South East
Africa v Liberia215 the court found amongst other things that action popularis
was a principle of law known to only a certain legal systems and as such not an
acceptable general principle of law. In the case of Texaco vs. Libya (1977) 53 ILR
38, the court held inter alia that the French law which was claimed by Libya was
not generally accepted by most nations. In conclusion, a general principle of law
implies that such principle should be known and wide spread to all states so that
its applicability will not be contested or questioned.

3.9 Judicial Decisions


Judicial decisions are also sources of law by virtue of Article 38(1d)216 but they are
to be utilized as subsidiary sources and in accordance with Article 59217 which is
to the effect that the decision of the court has no binding force except between
211 (1933.) PCIJ series A/B no. 53 at pg 69
212 (1962) ICJ Rep. pg 6
213 This was the situation in the case of US diplomatic and consular staff in Tehran (US V
IRAN) 1980 ICJ rep 3
214 Chorzon Factory Case (1928), PCIJ series A. no 17 and Danube Dam case, Para 152.
215 (1966)ICJ Rep pg 6
216 Article 38 (1b) of the International Court of Justice Statute
217 ibid

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the parties and in respect of that particular case. This notwithstanding, the court
strives to follow its previous judgment and always make sure that there is a measure
of certainty in the process. In theory, they do not make laws but are declaratory
of pre- existing laws; they are material sources of law. In the case of certain
phosphate lands in Nauru between Nauru v Australia (preliminary objections),218
the ICJ relied on article 59 when rejecting Australias objection to the exercise
of jurisdiction. Although it is true that Article 59 deliberately excludes a formal
doctrine of stare decisis or binding precedent from the international legal system
but there are traces everywhere when text books writers quote decisions of the ICJ
at the same court and also the court distinguish cases if the one quoted does not
apply to the matter under consideration just as in the municipal courts. Practically
speaking, the court is more involved in the creation than what Article 38(1) or 59 of
its statute suggests. The court decides cases and under the Statute, states are bound
by their decisions. In essence, the decision of the court has created law for the
parties and they are obliged to do what the court says, therefore there is no doubt
that the decisions of the court has a great impact in international law even if it is
without a formal doctrine of binding precedent. The court made this clear in a case
where one of the points in issue was directly covered by an earlier decision, the
court said in relation to that decision that it is not a question of holding the parties
to the current case to decisions reached by the court in previous cases. The real
question is whether, in the instant case there is cause to follow the reasoning and
conclusions of the earlier cases.219 It should be noted that Article 38(1)(d) is not
only limited to International Courts or tribunals alone but also to municipal courts,
such decisions can play dual roles that is they may contain relevant statement of
international law on a particular issue therefore being a material source. Also the
courts of a state are organs of the state and their decisions may rank as state practice
on a question of customary law. In the ICJ case concerning the arrest warrant,
the question was whether Heads of state and foreign ministers enjoy absolute
immunity from prosecution for crimes committed during their period of official
duty and whether there is an exception to this rule in the case of war crimes or
crimes against humanity. Both parties relied on the decisions on the point by the
UK House of Lords in the Pinochet case220, the statement of international law in
this decision would have been regarded as subsidiary means for the determination

218 (1993) 32 I.L.M 46


219 Land and maritime boundary between Cameroon and Nigeria, preliminary objections,
judgment. ICJ Reports 1998, p 275, para 28.
220 R v Bow Street Metropolitan Stipendiary, ex parte Pinochet Ugarte ( Amnesty
international intervening)

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of the customary law on the subject but it was however presented as evidence of
state practice and the court dealt with it as such.221

3.10 Writings of Publicists


According to article 38(1d), the writings of publicists are to be regarded as subsidiary
means for the determination of rules of law. Eminent writers like Grotius, Vatel and
Gentilli are regarded as supreme writers of the 18th century, their scholarly works
are essential in developing the rules that are sourced in treaties, custom and the
general principles of law. Basically, the effects of their writings stimulate thoughts
about the values and aims of international law and it points out the defects by way
of criticisms that exist within the system and make suggestions as to the future.
The writings of publicists are of immense importance especially where a rule is
vague or uncertain, this was demonstrated by the United States Supreme Court
in the case of Paquete Habana222 where the rules in the case were decided from
documents titled, Use and Customs of the sea 1661, it was written by a writer called
Clarac. Also in the Piracy Jure Gentuum case,223 the court adopted the opinion of
a writer called Haul written in a book.
Various sources of law have been discussed both in international law and in our
national law which includes legislations, custom and judicial precedent. However,
there are also other sources of law which are often overlooked at or disregarded
as sources of law, when properly looked at, they are very important sources of
law. They include restatement of law, ascertainment of law, codification and court
rules. All these will be discussed briefly to have knowledge of the impact they have
in a legal system.

3.11 Ascertainment as a Source of Law


Ascertainment as a source of law can be defined as the collection of various social
norms and severing them to identify one amongst such norms that can be given
a legal backing to become law. Social norms are the motley of informal, often
unspoken rules, guides and standards of behaviour, the authority for which is
vague if not diffuse and the communal sanction for which can be swift. These
non legal rules and obligations are followed and fulfilled in part, most times not
completely; as the law would be obeyed because it has no legal sanction. Although
221 Arrest warrant of 11 April 2000 (Democratic Republic of Congo V Belgium),
preliminary objections and merits judgment, ICJ report 2002, p 3. para 57, 58
222 175 US (1900) 677 at 700-701
223 (1934) ICJ pg 586

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the transgressors of such norms are faced with frowns from the society, they are
shunned or even ostracized and left with a feeling of guilt. In some aspects of
law, for instance, law of tort, contract or criminal law; legal scholars have always
looked to social norms as a possible means to address significant problems in their
respective areas of specialization. Often times norms which are supposedly a guide
to good behaviour and orderliness are not often obeyed, this is because they have
not been given the legal teeth that make them mandatory.
In ascertaining the social norms, some major factors are to be considered to
ensure that the norms becoming laws will be applicable to the entire society. Such
factors include a general norm, that is a norm that is not strange to the society but
generally accepted and widespread, also a norm that when turned into law will not
cause unnecessary hardship on the people, and it should be convenient. However,
though a particular norm is chosen to become law it does not invalidate the other
norms or make them bad. But with the passage of time, these other norms will
fade away obviously because a norm has already been given a legal backing and
pronounced as law to cover the aspect the other norms were governing.
Therefore, it would be stated that ascertainment helps to cure the defects of
confusion in the law. This is true because from the above line of thought, the
pith of substance of the concept of ascertainment as a source of law is basically
that of innovation and reformation of the law. Ascertainment is invaluable in the
development and formation of new laws; it gives precision, clarity and certainty
of the law.

3.12 Codification of Laws


Codification is the process of compiling, arranging and systematizing the laws
of a given jurisdiction or of a discrete branch of law into an ordered code. It is a
process of collecting and restating the law of a jurisdiction in certain areas, usually
by subject, forming a legal code.
The first society to codify its laws was ancient Babylon, the code of Hammurabai
was compiled in circa 1760 BC by the Babylonian king Hammurabi and it is known
as civil code. The first permanent system of codified laws could be found in China
with the compilation of the Tang code in CE 624, this formed the basis for the
Chinese Criminal Code. In the ancient Roman Empire, important codifications
were also developed. Codification helps in the unification of laws by putting them
in a written form. The merits of codification are as follows:

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Jurisprudence and Legal Theory

a.

Legal security: a code contains the whole of the law and any rule which
is not in the code or which contradicts it is invalid

b.

Clarity: codification makes it possible to ascertain the content of the law


mostly when they are written in obscure technical language.

c.

Unification of new laws and local customs.

Although codification has been viewed as a means of bringing laws together in


a written form, there has been some arguments against codification and one of
the main arguments is its immobile nature. This criticism was leveled by Savigny,
the founder of the Historical School of Law. According to this school, law is the
result of the historical evolution of people and must adapt itself to that evolution.
The fixing of the law by codification causes internal contradictions and intolerable
tensions within the society. Therefore if the code is not modified, it loses all
touch with reality, falls out of date and impedes social development. In theory,
codification possesses the sole aim of reformulation and systematization of the
law in force which avoids all substantial reform and all revolutionary innovation
and which reflects the past, limiting itself to recording and ordering the existing
law. On the other hand, codification can be conceived as an instrument of social
reform aimed at the future. Laws can also be re-codified that is a process where
existing codified statutes are reformatted and re-written into a new codified
structure. This is often necessary as over time the legislative process of amending
statutes by nature results in a code of archaic terms, superseded text and redundant
or conflicting statutes.
In Nigeria, our laws are all codified and enshrined in the 1999 Constitution. This
enables easy accessibility to the laws, although once in a while, the Constitution
may be amended and when it happens, it goes through a process of re-codification.
For instance the Nigerian Constitution has gone through various stages of
amendments from the 1960 Constitution to the 1963 Constitution, followed
by the 1979 and 1989 Constitutions and presently 1999 Constitution is equally
undergoing amendments.
Proponents against codification will argue that it makes law stiff and makes the
economy incur high cost when amendment of the law is necessary because it goes
through a process of re-drafting, re-structuring and re-formatting.
Some countries like Britain do not have their fundamental laws codified in a
document, they have an unwritten Constitution and as such amendment of their
laws could be easy and not be a burden on the economy. But it should be noted
that having unwritten laws can create uncertainty as to the exact position of the
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law on a particular issue. Although codification brings about togetherness and


clarity of the law, the fact remains that it would always have its merits and demerits.

3.13 Restatement of Laws


Restatements are secondary sources of law that seek to restate the legal rules that
constitute the common law in a particular state or a legal system. Where there is
uncertainty in a basic legal subject, restatement is imperative in order to inform
judges and lawyers what exactly such provision intends. It is a process whereby
laws already in existence but dormant for a period of time are modified, clarified
and put back into force. In some cases, the laws are abandoned due to uncertainty
of their applicability. Basically speaking, restatements of the law can be classified
into two categories, it is either for the purpose of re-enforcing laws that are not
been applied although they are in existence or for the purpose of clarifying the
law as to a particular issue when there has been a miscarriage of justice that causes
uncertainties as to the actual position of the law.
For instance in America, the American Law Institute was established in 1923 solely
created to promote the clarification and simplification of American common
law and its adaptation to changing social needs. The American Institute drafts,
approves and publishes restatement of the law, model codes and other proposals
for law reform, for example, the restatement of American Statute Law which was
enacted in 2002 as The Statute (Restatement) Act 2002. The purpose of the Act is
not to alter the existing text of the legislation but to provide for making legislation
more accessible by updating the existing Acts to incorporate all changes that have
been subsequently made into a single text and it also received approval from the
Attorney General of the state before it is made available to the entire public. Apart
from the fact that restatement makes legislation easily accessible, it also reduces
the cost of accessibility because the law is amended often times and the patch work
of such legislations can be very expensive to assemble, read and to understand
them. Therefore, restatement of such laws in a single document saves money to
the economy. Any field or aspect of the law can be restated, it could be on Agency,
Contract, Torts, laws governing lawyers, Rules of Court, e.t.c. For instance, the
American Law Institute restated the law of torts relating to product liability and
the duty of the manufacturers on the post sale duty to warn. The need for it was
imminent because there were so many decisional rules that defined the common
law rules of torts throughout the united states. These divergent court rulings were
therefore analyzed, their essence portrayed, evaluated and restated. This made the
restatement of tort an important and compelling source of law. There were some
uncertainties and lack of uniformity in the development of tort law basically on
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product liability because it was not provided for in the parent scheme. But when
it was restated, twenty one sections were introduced that dealt with the rules
of product liability as they pertain to a variety of issues. It includes evidentiary
rules, rules specific to commercial sellers of medical devices, foodstuffs, used
products e.t.c and rules specific to liability for manufacturing defects, design
defects and failure to warn, it also included a liability for post sale failure to warn
on manufacturers.
Restatement of laws is common to every legal system to facilitate orderliness and
certainty of the laws in force. In Nigeria, laws relating to certain legal issues and
conducts of the society at large are also restated. Most times the Law Reform
Commission (LRC) in Nigeria is responsible for reviewing laws and restating
them; it is slightly similar to the American Law Institute. Apart from the LRC
that is responsible for reforming the laws for the entire nation, some states can
restate laws that will actively guide the dealings of that state. For example, in some
states like Rivers, Delta and Abia e.t.c. the law on the use of helmet for motorcycle
riders (popularly called Okada riders) has been ignored for a long time and this
has brought uncertainties as to whether there is actually an existing law for it. So
it became imminent to restate the law to clear the air of doubts. Presently in some
states like Rivers State, the use of motorbikes for commercial use has been banned
because of the alarming rate of accidents it had caused and also some misguided
elements were using it to perpetuate heinous crimes. This is also an aspect of
restatement of laws; it is either restated as it was to bring it out of the shelves or it
is reformed with extra additions or totally removed for the welfare and security of
the people. The law on the use of seatbelts has also been restated in most states and
Nigeria as a whole. The reason for restatement of laws is to awaken the abandoned
laws and make the public aware that they still exist, most of the laws are restated and
even sanctions for a breach are included, for example the law against kidnapping
was restated in River State and re-sanctioned; this law has been in existence and
even provided for in the Nigerian Criminal Code Act.224 Regrettably, in states like
Rivers State, kidnapping has been the order of the day due to one inexplicable
reason or the other. The State government in order to curb this act restated the law
against kidnapping and also included the punishment for it.
Another restated law in River State is the law on residential building. It stipulates
that houses should be built two meters away from drainages and also not built
directly under a high tension pole. These laws have been in existence but they
are more obeyed in their breach. The government consequently showed its
224 S.364 of the Criminal Code Act, CAP C 38, LFN, 2004

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seriousness by carrying out a demolition process of all buildings in breach of the


law. Therefore, it is important to say that a restatement of law does not necessarily
mean that existing laws are abolished or the restated laws created out of the minds
of the legislators; they are laws that already exist but have been are abandoned or
forgotten. Restatement is a process of dusting up old laws and bringing them back
into the system.

3.14 Adaptation of Laws


Adaptation refers to the ability to adjust to new information and experiences or
constantly changing environment. It is also the act or process of modifying an
object to render it suitable for a particular or new purpose or situation. In the
biological sciences, it is the process whereby an organism becomes better suited to
its habitat, essentially important for survival.
Similarly, just like in the biological sciences, in law, adaptation is an act whereby
legal systems or nations adopt new laws from other systems similar to theirs in
some areas and adapting such laws into their legal system mutatis mutandis as
local circumstances or reality may permit.
The concept of adaptation of laws is very germane to the growth of any legal
system. Successful economies must make conscious efforts to adapt its laws to
meet current social demands and also adapt features of other legal systems to
address emergent needs or shortcomings in their own system.
It is pertinent to remind ourselves that law itself is not a static body of inflexible
rules and unyielding tradition. In fact, the dynamism of contemporary economic,
cultural, environmental, criminal and technological evolution and challenges
requires the law to adapt itself to modern trends and demands. Certain areas of the
Nigerian laws and that of most developing nations present a history of attempts to
graft archaic laws into ever changing circumstances resulting inevitably to a feverish
struggle to conform novel issues into an outdated legal framework. In the absence
of a law to deal with current developments, outdated law leaves new problems
exposed for litigation and requires attorneys and judges to explore uncharted seas
of legal complexity and difficulty. Other times, certain laws imported into the legal
system would of necessity need to be adapted to suit local circumstances or needs.
This is to the effect that wholesale domestication of foreign laws may create more
problems than the remedy envisaged. The reality for adaptation of laws is therefore
a necessity in any legal system.

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The theory of adaptation simply means the restructuring and modification of


existing legal framework to fit novel issues or circumstances that arise. It also
refers to the restructuring of laws that are copied from foreign jurisdictions. Such
imported law is modified mutatis mutandis and not copied verbatim but applied
as local circumstances may allow. For instance, in Nigeria, the various Statutes of
General Application together with Doctrines of Equity in force in England on
or before 1900 imported into Nigeria as a result of our colonial experience, are
applied in Nigeria subject to the nuances of local circumstances.
Again, most Nigerian statutes were imported from one jurisdiction or the other.
For example, the Nigerian Criminal Code was fashioned or borrowed from
Australia, and the Nigerian Evidence Act was copied from England. These laws are
not transplanted hook, line and sinker; they are domesticated according to how
local circumstances and the limits of our peculiarity may allow, giving that these
laws were copied from a different socio-political and cultural environment.
Adaptation of laws enhances development of the law and the entrenchment of
justice in the legal system. The continued application of traditional laws that are
unresponsive to changes in the society will hinder justice and a schism in the
socio-legal environment. Total reliance on judicial activism on the part of judges
to randomly develop laws to remedy certain inadequacies may sometimes be
inadequate. It is in this view that one notes the crying need for reform of certain
obsolete legislations in Nigeria with the view to adapting them to the realities and
demands of the modern times. The Nigerian Evidence Act is overdue for reform
especially with the demands of technologically generated evidence. The Criminal
Code is also not exempted especially in the light of cyber crime and other realtime realities of the information age.
The above is not peculiar to the Nigerian legal System alone even in other climes,
there exist various examples. For instance, the history of America is replete with
numerous instances when rapid alterations in the social fabric forced adaptations
of the law. Following the American Revolution, the democratic government
developed a legal system to reflect the new political environment but did so
through adaptation of English law copiously in use in the American legal system
then. Also, the nineteenth century Industrial Revolution introduced powerful
technologies that rapidly precipitated economic and cultural changes. Similarly,
the present global economic meltdown has revealed the shortcomings of
capitalism and the evils of an unregulated market with some governments taking
over major financial institutions, increased supervision and expansions of the role
of government thereby drastically reducing the global pandemic of private sector
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driven economy. In the same vein, Cultural Revolution in the 1960s emphasized
racial and gender equality, promoting affirmative action programs as well as
recognition of environmental concerns. It should be noted that justice cannot be
done where the law does not adapt itself to the demands of change. For instance,
S.2 of the Evidence Act provides that: documents includes books, maps, plans,
drawings, photographs and also includes any matter expressed or described upon
any substance by means of letters, figures or marks or by more than one of these
means, intended to be used or which may be used for the purpose of recording that
matter. The above section envisages a writing or inscription upon any substance
that is upon a surface. It certainly does not contemplate writing in a computer
memory or computer screen been an electronic device. In fact, even if one can
argue that the definition is not exhaustive since it uses includes instead of
means, information in computer memory or screen could still be excluded by
the ejusdem generis principle of statutory interpretation. The application of the
principle would limit the definition to things of the same kind and nature with those
already enumerated. In essence, it would mean things with a surface on which the
information is physically written and excludes any electronic or magnetic process
of displaying information otherwise by no means a surface. Another point, the
bankers book as defined in the Evidence Act does not take cognizance of the
modern business of storing accounts in computer memory as it obtains in modern
banking business. The Evidence Act does not also envisage other electronic ways
of storing and disseminating information like the electronic mail (e-mail), GSM
(mobile phone) text messages, Bluetooth devices, microfilm, microchips, the
internet and so on, which are in common use in modern society. Thus, the need for
the reformation of this outdated piece of legislation cannot be over emphasized as
modern business or e-commerce will be grinded to a halt without the use of these
modern information technological devices. Therefore, the function of the courts
cannot be over emphasized as the court is the arm of government best suited
and that can easily adapt the law to the ever changing needs of modern society.
If the aim of the law is not to fossilize life and business but to aid them, then the
court should stand up to the socio-economic engineering as necessary through
the administration of justice that meets the needs and challenges of the time. It
is submitted that courts are not robots, liberal application and interpretation of
extant rules in the absence of statutory reforms is advocated to adapt the laws to
social change and thus obliterate the obvious vulgarity or epilepsy and handicap
of existing laws. This would not qualify as judicial legislation but merely adapting
the existing law to accommodate the needs of the time. The statement of the

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inimitable Lord Denning in the case of Seafood vs. Asher225 is instructive. The
Master of the Rolls stated thus:
Whenever a statute comes up for consideration, it must be remembered
that it is not within human powers to foresee the manifold sets of facts
which may arise, and even if it were, it is not possible to provide for them in
terms free from all ambiguity. The English language is not an instrument
of mathematical precision. Our literature would be much the poorer if it
were. This is where the draftsmen of Acts of parliament have often been
unfairly criticized. A judge, believing himself to be fettered by the supposed
rule that he must look to the language and nothing else, laments that the
draftsman have not provided for this or that or have been guilty of some
or other ambiguity. It would certainly save the judges trouble if Acts of
parliament were drafted with divine prescience and perfect clarity. In the
absence of it, when a defect appears, a judge cannot simply fold his hands
and blame the draftsman, he must set to work in the constructive task of
finding the intention of parliament. Put into homely metaphor, it is
this: a judge should ask himself the question: if the makers of the Act had
themselves come across this ruck in the texture of it, how would they have
straightened it out? He must then do as they would have done. A judge
must not alter the material of which it is woven, but he can and should
iron out the creases
It is advocated that the judiciary should come to the rescue and adopt a liberal
and activist approach. The court should apply existing statutory and common law
principles in ways and manners that incorporate the existing social realities and
do justice to the society. In fact, it has been suggested that the court do make law
in this regard. The Nigerian court once gave judicial blessing to this view when it
stated in the case of Patrick Magit vs. University of Agriculture Makurdi226
thus:
It is said that the function of the court is to interpret laws made by the
legislature and not to make laws. In theory that is so, but it must equally
be admitted that judges are not robots who have no mind of their own
except to follow precedents As the society is eternally dynamic and
with fast changing nature of things in the ever changing world and their
attendant complexities, the court should, empirically speaking, situate

225 (1949) 2 KB 480 at 298-499


226 ( 2006) All FWLR (pt 298) 1313 @ 1345 ( per Pat-Acholonu)

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its decisions on realistic premise with regard to the societys construct and
understanding of issues that affect the development of jurisprudence.
The beauty of the law in any civilized society is that it should be progressive
and act as a catalyst to social engineering. Where it relies on mere technically
or outmoded or incomprehensible procedures and immerses itself in a jacket of
hotchpotch legalism, (that is not in tune with the times), it becomes anachronistic
and it destroys or desecrates the temple of justice it stands on.227 In fact, the
excuse, as earlier stated, should not be because the law has not provided for the
situation at hand; it is a trite position of the law expressed in the Latin maxim ubi
jus, ubi remedium meaning where there is a right there is a remedy. In this regard
Lord Dennings position in Packer vs. Packer228 is very instructive what is the
argument on the other side? Only this: that no case has been found in which it had been
done before. That argument does not appeal to me the least. If we never do anything
which has not been done before we shall never get anywhere. The law will stand still
whilst the rest of the world goes on and that will be bad for both.
In view of the critical role adaptation plays in the growth and development of any
legal system and society, it is advocated that both the legislature and the judiciary
should rise up to this very important challenge in the legal system for national
development and prosperity.

3.15 Unification of Laws


Unification of laws is an instrument of growth and development of law in any legal
system. Unification of laws in any legal system is a valuable topnotch instrument
that derives positive social change and development in the society. Even in our
society today, it is one of the tools employed by nations to develop and strengthen
the institutional frame work of their legal system and also to entrench basic
principles and fundamental rules of law that have acquired a measure of universal
validity and recognition.
What then is unification of laws? It simply means the harmonization of discordant
laws in a legal system or in line with internationally accepted or recognized legal
norms, rules, treaty or conventions. In other words, unification presupposes that
there is discordance or disparity in an aspect of the law in the legal system or
discordance arising out of comparison between an aspect of the law in a legal system
and relative international recognized norms or standards governing the same issue.
227 Buhari V Obasanjo (2004) F.W.L.R (pt 191) 1487 @ 1532
228 (1954)15 at 22

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Therefore what needs to be done is harmonization, which is to bring into harmony


or reconcile the disparity to realize a uniform law governing the set of issues or
an area of law either within the legal system or in consonance with international
standards for the good of all legal systems and humans at large. The Nigerian
Constitution which forbids all sectarian religion and harmonizes Christian and
Islamic doctrines, adopting none as a State religion when in actual fact these two
religions are the major religion in Nigeria is one of the numerous examples.
The practical implication of the above is that where the legislature of a nation
discovers conflicting laws or legal rules governing an issue, or where the legal
framework does not measure up to certain recognized universal standards or
conventions, then it behoves such law making organ to reform such conflicting
laws in order to unify rules of laws governing that aspect of law and also to
integrate universal standards into the legal system. At this point, some examples
of unification of laws in Nigeria would do justice to our discussion. An example
is the domestication of Child Rights Act, basically the international community
places a high value on childs right so it has influenced a lot of legal system to
domesticate and reform theirs in line with the Convention on the Rights of the
Child. In Nigeria many states of the federation have domesticated the Act; others
are still in the process of domesticating it. Another aspect is on environmental
issues, the international community has shown a lot of interest on the need to
protect the environment, and subsequently most nations have reformed their
environmental laws towards entrenchment of these international standards. In
the same vein, the Universal Declaration on Human Rights in 1948 and African
Charter on Human and Peoples Rights have also had an effect on nation states.
For example the inclusion of Chapter Four on the protection of the Fundamental
Human Rights in the 1999 Constitution of the Federal Republic of Nigeria is in
tune with the UN Charter.
At the municipal level, the Nigerian Law Reform Commission drew up a proposed
code of Civil Procedure Rules for use in all the High Courts of the federation. The
code styled the Uniform High Court Civil Procedure Rules was in the schedule to the
bill of civil procedure law. The objective is that states in the federation might adopt
and pass the bill into law and thus make the proposed rules the only operative
ones in the court of the state. States of the federation have unified their High
Court Procedure Rules in line with the uniform civil procedure. Before this, there
were conflicting or discordant procedure rules operating in the various regions
of Nigeria.

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The Uniform High Court (Civil Procedure) Rules were intended to bring about
uniformity in practice and procedure in all the High Courts in Nigeria and to
provide a comprehensive and self sufficient set of rules of procedure for use in
these courts. However, these rules continue to be reformed and presently the
front-loading innovations in the uniform rules have helped speedy dispensation of
justice in the nation. A uniform standard of practice and procedure is now in place
in the Nigerian High Courts.
Secondly, on the advent of the colonial masters in Nigeria, there were rules and
customs governing our criminal jurisprudence which was discordant. These
discordant customary criminal laws were brought into harmony by the colonial
government. The effort was aimed at unification and integration of English
Common Law and the customary criminal law in place in Nigeria into a uniform
criminal jurisprudence.
The integration was introduced with local modifications to suit the requirements
of the existing customary criminal laws acceptable to both Muslims in the North,
the others in the Southern part of the country and at the same time acceptable
to the international community. This led to the birth of the Criminal code Act
operative in the South and the Penal Code in the North thus producing a single
legislation for the South and another for the North in place of the erstwhile
criminal laws operative in the many tribes of both regions. The two legislations
made serious efforts to codify acceptable customary and Islamic criminal rules
together with applicable common law rules governing criminal law. In spite of the
above unification, there still exist in the Nigerian criminal justice system some
conflicting rules which need reform. However, it is not only in the criminal justice
system that we have irreconcilable and problematic provisions but in other areas
of the law too. Still within the criminal justice system, a closer look should be
taken to examine the issues surrounding police power to arrest upon reasonable
suspicion of commission of a crime. Members of the Police Force are vested with
the powers to arrest by virtue of section 24 of the Police Act (Cap. P19 LFN 2004),
section 10 of the Criminal Procedure Act (Cap. C41 LFN 2004) and section 26 of the
Criminal Procedure Code. It is important to point out that the provisions of the
above statutes are not in concordance with respect to issues of arrest: The three
enabling Acts make irreconcilable demands on the law of arrest thus affecting the
arrest decision, depending on the particular provision invoked. Section 24(2) of
the Police Act provides that the instance enumerated under section 24(1) thereof
shall not apply to any offence with respect to which it applies provided that any
offender may not be arrested without warrant. In other words, the wide powers
of arrest conferred on the police will not be invoked if an offence provides to the
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contrary. Let us point out that this is contrary to section 26(a) of the Criminal
Procedure Code. The Criminal Procedure Act provides in section 10(2) that the
authority given to the police to arrest a person who commits an offence in his
presence must be exercised notwithstanding that the written law creating the
offence provides that an arrest cannot be made without a warrant. Similarly, by
section 26(a) of the Criminal Procedure Code, any member of the police force
may arrest any person who commits an offence in his presence notwithstanding
any provision in the third column of Appendix A that an arrest may not be made
without a warrant. This area of the Nigerian criminal law needs unification and
reform. It is also important to mention that there are in existence in the various
states of the federation criminal laws in tandem with either the Criminal Code
Act or the Penal Code Act depending on whether such state is in the Southern or
Northern part of the country where these two principal legislations operate.
It is in view of the above that one maintains that unification of laws constitute a
veritable instrument of positive change and development in the society and indeed
for the growth of the law and the legal system. However, it would be stated that
it should not just be blind unification of laws without consideration of the local
circumstances. The caution will ensure that the remedy we are trying to proffer is
not more than the malady. Unification should therefore not be entirely wholesale
but should be done to the limit that the peculiarities of local circumstances permit.

3.16 Soft Law


In other to discuss the subject matter as a source of law, it is important to first
define what the term means. The term may be misleading because strictly speaking
it is not law at. It is simply a guideline or principles of code of conduct which
though do not have any legal status but are highly expected that their provisions
will be respected and followed by the parties involved. Soft law can be defined
as commitments made by negotiating parties that are not legally binding. It is
a variety of non-legally binding instruments used by parties, either by states or
international organizations. Basically, soft law consists of documents that are not
directly enforceable in courts and tribunals but nonetheless have an impact on the
parties involved, also on international relations and ultimately international law.
Soft law refers to a quasi-legal instrument which does not have a legally binding
force; the subject matter is associated with international law although more
recently it has been transferred to other branches of domestic law as well. Soft law

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encompasses inter-alia inter-state Conference Declarations229 and UN General


Assembly instruments. These rules do not stipulate concrete rights or obligations
for the legal persons to whom they are addressed, they are normative and although
they are rules of law, their content is inherently flexible or vague. Soft law refers
to those values, ideas and proposals that may develop into rules of international
law but have not yet done so. Unlike treaties and customs, soft law is not binding
in a legal sense but their instruments carry some authority. They are negotiated
based on good faith by the negotiating parties who hold some expectation that
the non- binding commitments will be met as much as reasonably possible. The
parties involved decide for themselves the rules that will govern their relationship
or arrangement, for instance, the Sale of Goods Agreement, Contract Agreements
and so on. The rules stipulated by the parties are not legally binding per se but they
are obliged as earlier said to treat it with good faith.
It is necessary to distinguish between soft law and hard law as sources of law; while
soft law refers to a set of non binding legal principles, hard law refers to binding
laws, or rules that constitute law, and they are authoritative and prescriptive. In
international law, hard law includes treaties or international conventions, customary
law and so on. This constitute the source of international law because they have
been prescribed so in a legal document which is the Statute of the International
Court of Justice particularly in Article 38, which provides that treaties, custom and
the general principles of international law are the primary sources of international
law while the subsidiary sources are judicial decisions and writings of publicists.
The aforementioned can be classified as hard law, and they are legally binding, in
contrast with soft law. For instance, the UN General Assembly Resolutions which
are often mistakenly considered binding are not legally binding per se because
they are categorized within the ambits of soft law.
Nevertheless, soft law can evolve into hard law, an important role of soft law
instrument is their ability to influence the future development of hard law
commitments and soft law can serve as a ready means for parties to get into
an agreement when surrounding situations either time factor or political and
economical reasons would not make it possible to get into a legal binding
agreement. In many cases the court has enforced the provisions of the soft law. For
instance the regulatory document or the Constitution of a social group though
regarded as a soft law has been enforced by the courts. In the case of Ehinlanwo
v Oke, the Supreme Court held that Peoples Democratic Party of Nigeria (PDP),
229 Such as the 1992 Rio Declaration on Environment and Development, the 1948
Universal Declaration of Human Rights, the 1970 Declaration on the Principles of
Friendly Relations among states or the Resolutions dealing with outer space and so on.

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though a political party are bound by their Constitution which can be regarded as
an instrument of soft law.

3.17 Court Procedure Rules as Source of Law


Court rules form a specie of delegated legislation being a set of rules regulating
the process of litigation and court proceedings in any legal system. Delegated
legislation as we have discussed is a law made by a person or body of persons or
institution other than the organ Constitutionally entitled to make law in a legal
system, to wit; the legislature.
In Nigerian legal system, the 1999 Constitution of the Federal Republic of Nigeria
(CFRN) empowers certain judicial officers to make rules regulating the conduct of
proceedings before it. Specifically, the Constitution230 empowers the Chief justice
of Nigeria to make rules for regulating the Practice and Procedure of the Supreme
Court. The President of the Court of Appeal is also empowered to make rules of
Practice and Procedure of the Court of Appeal. Again the Constitution provides
that the Chief Judge of the Federal High Court may make rules for regulating
the Practice and Procedure of the Federal High Court.231 In the same vein, the
Constitution empowers the Chief Judges of the various states to make rules for
regulating the Practice and Procedure of the High Courts of the states.232
Pursuant to the above, the various courts in Nigerian legal system have in existence
court procedure rules for regulating the conduct of their proceedings and the
essence of these rules are to ensure that the affairs of the court are carried out in a
regulated manner with reasonable degree of certainty such that prescribed acts are
seen to be complied with by the parties in the interest of justice. Nonetheless, if
both courts and parties enslave themselves to rules of court, the interest of justice
would be defeated. The duty of the court is to afford parties an opportunity to
correct their errors. The court in the case of Odu vs. Fawehinmi held that when a
party has detected an error in the proceedings which, if uncorrected will adversely
affect his chances and has by application made effort to correct such errors, the
principles of justice demand that he should not be denied the opportunity to do
so. It will be preposterous to concede to the contention that the error so detected
should remain uncorrected so that the adversary can take advantage of it.233 The
Supreme Court Rules operative in Nigeria presently is the one made by the then
230
231
232
233

S.236 CFRN 1999


S. 254 CFRN 1999
S.274 CFRN 1999
(2005) 15 N.W.L.R (pt 949) 578 C.A

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Chief Justice of Nigeria in 1985 which regulates the Practice and Procedure of the
Supreme Court. There is also in existence a Fundamental Right (Enforcement
Procedure) Rules made by the then Chief Justice of Nigeria in 1979 with
commencement date of 1st January 1980, under Chapter IV of the Constitution
for regulating the practice or procedure for any person seeking to enforce any
of his fundamental rights as provided under Chapter IV of the Constitution (it
is now Fundamental Right {Enforcement Procedure} Rules 2009). The Federal
High Court (Civil Procedure) Rules regulate the practice and procedure of the
various divisions of the High Court. Similarly, there is also in existence a Uniform
Civil Procedure Rules of the various High Courts of each of the 36 states of the
federation. The above Rules of Courts must be obeyed and duly followed by
both litigants and the court itself in their hallowed and solemn duty of justice
dispensation and adjudication. These rules of procedure are therefore binding on
all parties that wish to approach the court for determination of disputes. They are
also binding on the courts because they also observe these rules in proceedings
before them. These rules in essence have the force and stamp of law arising from
and consequent on the Constitutional blessing and recognition they enjoy. In
addition to and part of the above rules is what is called Practice Direction. In the
case of University of Lagos v. Aigoro,234 Bello JSC (as he then was) opined that
a practice direction is a direction given by the appropriate authority stating the
way and manner a particular rule of court should be complied with, observed and
obeyed. Similarly, this view was expressed in the latter case of Nigerian Airport
Authority v. Okoro.235 A practice direction could therefore be a practice book or
manual made to answer the questions on how procedural methods in a particular
court or category of courts should be complied with or obeyed. Practice directions
are most times contained in court rules or precedent court forms. Thus, practice
directions are part and parcel of court rules.
In the light of the above reasoning, it is submitted here that court rules constitute
a source of law in any legal system. This is true because it is the procedural rules
that are used and adhered to in the administration of justice. It is evident that
some cases are won or lost based on the obedience to or observance of the rules of
courts. Failure or negligence to obey these rules on the part of the litigant always
leads to unpleasant consequences.
This is true because it is only when there is a competent application before the
court that it can proceed to determine the substance of the application. Procedural
irregularities can therefore nullify an action. Where an application before the
234 (1984) 11 SC 152 at 159
235 (1995) 7 SCNJ 292 at 301

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court is not competent, going into the merits of the application would be a mere
academic exercise. Rules of court determine the outcome of a case. In essence
where non- compliance goes to the root of an action, such action is a nullity. This
is because a court can only assume jurisdiction over a case when the case before it
is initiated by due process of law and consequent upon fulfillment of any condition
precedent to the exercise of jurisdiction.
In other words, non compliance is fatal and the proceeding a nullity, however
well conducted and decided. The court gave judicial blessing to this view in the
case of E.B.N Ltd. vs. Halico (Nig) Ltd.236 In that case, the respondent failed to
comply with the requirement of the High court (civil procedure) Rules of Kano
state. There were no particulars of claim endorsed on the respondents Statement
of Claim or anywhere in the entire process filed. Also there was no where on the
writ of summons that the respondents address and that of his legal practitioner
were endorsed contrary to Order 5 Rule 12(1) High Court (Civil Procedure) Rules
of Kano State. In declaring the action incompetent on appeal, the Court of Appeal
Kaduna Division stated that all parties in litigation have a duty to obey rules of
court and failure to do so will negate the action before the court.
The statements of the court in its judgment are instructive and also represent the
general position of the law on the issue. The voice of the court rang thus: rules of
court are meant to be observed and followed, parties in litigation do not have options but
to comply with the requirements of the rules, which guide and direct the procedure in,
and proceedings of court prior to and at commencement and even beyond. Thus where
mandatory rules are not complied with and they go to the root of the action, the writ
of summons will not only be a nullity but the entire proceedings predicated on its shall
become void. You cannot put something on nothing and expect it to stay, it will fall.237
From the above decision of the court, court rules qualify as sources of law as they
regulate not only the conducts and actions of litigants but also the court itself
in the quest for justice in a legal system. They must be obeyed if not they would
qualify as mere cosmetic documents having neither meaning nor essence. The
phrase rule of law includes the due process of law which the courts are to apply;
therefore, rule of law without due process is incomplete. In the case of Alemuloke
vs. President Ibadan South Grade,238 the appellant failed to file and serve the
statement and grounds upon which he relied for the relief sought as prescribed
by a combined reading of Rule 3(2) and 6(1) of the High Court of Oyo State Civil
236 (2006) 7 NWLR (Pt 980) 568 at 571- 573
237 Ibid at pg 571 of the report
238 (2006) 6 NWLR (Pt 977) 612 at 617

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Procedure Rules. Again Rule 3(2) (a) and (b) of the same Order is to the effect
that an application for a writ of prohibition has to come by way of judicial review.
It was held that the irregularity could not be cured in the circumstances. The court
went further to state that rules of court must be complied with as failure to do so
will render an application incompetent.

3.18 The Relationship and Differences Between Law and


Other Related Concepts Order, Rules and Regulation
Law refers to the body of legislations, regime or statutes that regulate or order
human activities, behaviour or relations in a politically organized society. The idea
here is that these laws are made by the law making organ of the society.
An order, a rule, regulation or procedure also governs human conduct, activities
and relationship in the society but with a different scope or degree of application.
However these other concepts may not emanate from the primary law-making
organ of the society.
The fundamental point being made here is that, whereas law applies to the
generality of the society as a whole, rules, orders or regulations are specific to a
particular group of people in a society. The following is explanatory of the point
being made here.

3.18.1 Regulation
A regulation is a rule or order having a legal force and issued by an administrative
body, ministry, organ or arm of government to persons whose activities may
fall within the ambit or authority of the administrative body, organ or arm of
government. For instance, the Department of Petroleum Resources has its rules
and procedure on how a person seeking to participate in the down-stream sector
of the Oil and Gas industry ought to follow. These rules of practice and procedure
(not made by the legislature) are binding on all within the industry in question. In
other words, the regulation applies to a class of people in the society. It has nothing
to do with those not in the oil and gas industry.
Again, the Department of Petroleum Resources in Nigeria produced and published
in 2002 Environmental Guidelines and Standard for the Petroleum Industry in
Nigeria (EGASPIN). The essence is to regulate actors in the petroleum industry.
The gist is that, one needs to engage in any of these businesses to be affected by
these rules or regulations.
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Jurisprudence and Legal Theory

It would be stated that these regulations or rules constitute what is called


subsidiary legislation deriving their authority from the enabling Act. Such Acts
may empower the Minister or Director, Permanent Secretary, as the case may be,
to make regulations or rules regarding a particular industry or sector in question
only, not the general public or populace unlike the law (i.e. statutory law) that is
binding on everybody in the society.
Again, it should be stated that regulation deals with internal control and
implementation of government functions. In the case of Asogwa v. Chukwu,239
the court gave judicial blessing to this point when it stated that the House of
Assembly has powers to regulate its internal proceedings. In the words of the
court: the suspension of any member of a House of Assembly or when he should be
recalled from suspension is within the province of the legislature. It is for the House to
recall a suspended member according to their rules. A political party or organization
may have regulation that binds its members only and sometimes courts have
been known to enforce these regulations as only restricted within the internal
affairs of the members, for instance in Ehinlanwo v Oke (supra) the Supreme
Court of Nigeria held that the Peoples Democratic Party of Nigeria (a political
party) is bound by their regulations embodied in a document though christened
party Constitution.

3.18.2 Rules
In the same vein, a Rule is an established and authoritative standard or principle,
a general norm mandating or guiding conduct, behaviour, action or reaction
in a giving situation. A rule also means a regulation governing an agency or an
administrative bodys internal practice and procedures, this also includes a court.
The application of these rules is limited to those persons that shall come or fall
within the authority of such agency or administrative body or court as the case
may be. A rule of court governs the practice and procedure in a court, for instance
Federal High Court Civil Procedure Rules which anyone seeking to approach the
Federal High Court for determination of any dispute must follow. The Federal
High Court Rules therefore applies to A, for instance, as much as A wants the
Federal High Court to adjudicate on issues he brings before it.
Also, in the Nigerian legal system, there is a Uniform Civil Procedure Rules
applicable in the various High Courts throughout the federation. The rules thus
apply to parties appearing before the court for the determination of their disputes.
239 (2003) 4 NWLR (Pt.811) 540 at 553

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The rules are therefore not relevant to ordinary citizens that have not come before
the courts. Again, any person seeking to enforce his Fundamental Human Rights
will have to follow the procedure as provided in the (Enforcement Procedure)
Rules made by the Chief Justice of Nigeria in 1979 (now 2009) pursuant to the
powers bestowed on him by the 1999 Constitution. Whereas the fundamental
human rights provisions enshrined in the Constitution apply to all persons or
authorities throughout the federation, the Fundamental Rights (Enforcement
Procedure Rules) only apply to parties that appear before the court to enforce
their fundamental rights. The scope of application of procedural rules is limited to
persons appearing before the court for it to apply unlike the law that applies to all
persons. It therefore regulates the behaviour and conduct of parties.

3.18.3 Order of Court


An order of court is the mandate or determination of the court upon some
subsidiary or collateral matter arising in an action, not necessarily disposing
of the merits but adjudicating a preliminary point or directing some steps in
the proceedings. However, it may at other times involve the final judgment or
determination of the case before the court.
An order of court involves a command, directive or instruction concerning a
particular state of affairs as regarding the parties before the court or other persons.
For instance an ex parte Order is made by the court upon the application of one
party to an action without notice to the other. Again, a court makes an interlocutory
order which takes effect temporarily until something else occurs. It is made as an
interim measure.

Conclusion
There is a thread that runs through all these, whether law, regulation, order or
rules. The common thread is that all these legal concepts regulate members of the
legal system one way or the other. They are all rules of conduct and behaviour.
However, the difference arises in the scope of application to the effect that whereas
the law (statutory laws) apply to all persons because they are made by the primary
law making organ of the society, the others are limited in scope as they are made
by government agencies, administrative bodies or courts for the smooth running
of their operations in consequence of the powers conferred by the Constitution or
enabling statute. The law has general amplitude, while rules, order and regulations
are specific in their scope of application.
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Again, statutory laws constitute a superior source of law in relation to these


administrative rules, regulation or court order. This inevitable culminates in
parliamentary or legislative control over such administrative rules, regulation or
even court orders. In respect of legislative control over court orders, the Supreme
Court itself in the case of A.G. Abia State vs. AG. Federation240 did not hesitate in
asserting that the National Assembly has the power, in the course of legislating, or
making law, to modify or abrogate decisions of any Supreme Court, the highest
court of the land.

FURTHER READING/REFERENCE
1.

I. Brownlie (2003) Principles of Public International Law, 7th Edition Oxford


University press, pg. 3

63. Lloyds Introduction to Jurisprudence, 7th edn. by M.D.A Freeman published


by London Sweet and Maxwell (2001) (for more on the schools of thought)
104. I. Brownlie, Principles of Public International Law (2003) 7th Edn. Oxford
University press pg. 6
108. J.F. OConnor, Good Faith in International Law (1991)
Wigwe Chris. The Sharia and the 1999 Federal Republic of Nigeria Constitution.
Journal of Jurisprudence & Contemporary Issues. Vol. 5, 2009.

240

(2006) 16 NWLR (Pt.1005) 265 at 292

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Chapter Four

Theories of Law
4.1 Natural Law Theory
Introduction
Natural law theory has played a cornerstone position since the time of early
civilization down to the twentieth century. It served as a means of justifying
man made law showing it in divine or supernatural sense. The idea of natural law
rights similarly has its origin in conservative forces anxious to satisfy properly
(symbol of the existing order) as the Fundamental Human Right overriding
even the right to life itself.241 However, its cornerstone position was put to test
in the 19th Century when the proposition by Natural law theory that everybody
was equal was vehemently opposed. This opposition however died down during
the 20th Century specifically after the Second World War where people saw the
need to revive it as a result of grave unimaginable destruction of human beings
and the environment. Another reason could also be because of the excellent new
collections of Essays edited by R. George, Natural Law Theory; Contemporary
Essays (1992) and writings by P. Soper (1988) 22 Creighton L. Rev. 67 and P.
Johnson (1987) 75 California L. Rev. 217 and others.

4.1.1 What is Natural Law Theory?


Just like Law, natural law has had much juristic ink spilled on it without any
conclusion. Natural law has many meaning and purposes given by diverse
authoritative authors causing a compendium of sort. Someone once said that
many of the ambiguities of the concept of natural law must be ascribed to the
ambiguity of the concept of nature that underlines it.
The Greek and the Romans never accepted the concepts of natural right instead
they took positive law as priority while still claiming they believed in the precepts
and ideologies of natural law. Views as to the content of this principle is diverse
241 D Entrexes. Natural Law Theories. Rev. Edn (1976) p.16

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but the essence of natural law may be said to lie in the constant assertion that there
are objective moral principles which depend upon the nature of the universe and
which can be discovered by reason. This is the ultimate composition of natural law
theory of life.
It has also been claimed by natural law lawyers that the point behind natural law
can never be put to the dung simply because nothing was said about it or it did not
have the effect it was expected to have. Example was given about Mathematical
and Physics formulas which are always true even when they are misunderstood.
One major problem faced by natural law is the issue of deriving moral propositions
from factual statement. Much has been said about this. It is also good to understand
what is been examined. What we are talking about here is issues that are not
verifiable i.e. drawing a ought from an is. Take for instance, the division of
fifty by two is the addition of fifteen and ten and compare this with cutting of a
mans right hand for stealing a loaf of bread. The first mathematical composition
is verifiable but the other thesis is not. The former is a statement of fact while the
latter is not conclusive.
Generally, there is nothing wrong to draw a moral proposition from a fact but the
fear is for the possibility of drawing illogical conclusions from factional issues
which are unacceptable to the general consensus. One way out of this quagmire
is by saying that if it is natural to act in a particular way, then man must act in that
way. This is usually done by the process of observing the general pattern of mans
behaviour. For example, if it is natural for a man and a woman to come together
and copulate resulting in child birth, this is the only natural way child birth can
be done. The idea of cloning is therefore a wrong thing and must be discarded.
Another example is the natural belief that marriage can only be done between a
man and woman then the idea of same sex marriage should be discouraged.
Much has been said about these propositions. The positivists have claimed that
it is a simple confusion of science and law claiming vehemently that the two are
much dissimilar. Many natural law lawyers have opposed these claims put forward
by the positivists. They used the same example given by the positivist to claim the
scientifically proven law or formulae is a is because God has made it perfectly
that way and any variation will be a nullity. It will only mean that the scientist have
not been able to discover the formula. Also proposing an ought from an is is
proved to the fact that the best law composed of reasonable logical conclusion has
not been reached. Therefore there is no confusion here, it simply means that the
ought proposition is in order.

190

The above view was also developed by Aristotle and Aquinas. They both justified
the idea that everything has a normative or morally justifiable end.They both
considered nature in a teleological form. According to Aristotle and his faithfuls,
everything has a predetermined end laid by God. Also when you plant a seed of
mango the ultimate aim is for the mango to grow into a big tree. If you plant a seed
of orange you get a big orange tree that has oranges and that is their normative
end. Similarly, a part of something can be understood only by reference to its
contribution to the whole to which it belongs. This was further given more flavour
by St. Thomas Aquinas who made certain revealing comments about the good.
According to him, (in Christian context now) the good can only be known by
God and man can only understand through the process of divine revelation
and participation.
Another significant individual that supported the teleological approach is J.M.
Finnis who proposed that, every man has a common good which he strives at and
such common good must reflect in the society he lives. If there is no society in
which man exists then he will not have the necessary environment to achieve his
ultimate aim which is the common good. Finnis feels everybody will need that
environment. One other significant confusion result from those who give the
common good. If it is given by God then what can one say about reason? After
all, Aristotle, Plato and Socrates laid particular emphasis on it. This confusion
needs attention.
Another issue on the defence of Natural law is the claim that natural law is self
evident. This claim seems to depart slightly from the view that moral norms must
be proved like scientific formulae. There are quite clear moral norms, like killing is
wrong. This view seems clear and unequivocal but there are some misgivings about
this thesis. If murder is wrong why does the state approve of capital punishment
as a punishment for certain crimes? The fact remains that countries all over the
world have not been able to agree on this matter. Another thesis we can dispute is
the issue of whether prostitution is right or wrong. Natural law claims prostitution
is wrong and this is even supported by Biblical testimony where a prostitute once
came to Jesus when he was with some Pharisees and his disciples. Their attitude
towards her showed rejection of course. Jesus did not reject her. The issue here is
why do some countries still legalize immoral and disgraceful profession?
Another proposition that was made to salvage natural law was the claim made by
Stammler fully accounted for in J. Stone, Human law and Human Justice (1965),
Chapter 6.) He claimed that justice was a universal norm but justice in a place
could be well different from another.
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According to him, justice in one society will probably be different from another
society. In the Northern part of Nigeria when a man steals (no matter how small)
his hand is to be cut off; this is justice according to their society but in the Southern
part of Nigeria cutting of a man`s hand is injustice, instead another punishment
should be meted out to him and to concede that the content of natural law may
vary with social differences is to give up any attempt to construe objective norms
and value.
Another important personality that have made valuable contribution to the
confusion about the is: and ought issue is J. M. Finnis. In his book Natural Law
and Natural Rights published in 1980. He claimed that at no time was the issue
of ought brought from the issue of is. To him is should be totally different
from ought. He further claimed that the Christian writers or the renaissance
jurists were wrong in trying to draw the ought reference. He denied the fact
that Aristotle was misinterpreted by many latter writers who claimed he drew
the normative values from factual issues. He argued that no norm can be drawn
from a factual issue rather on a reflective rasp of what is self evidently good for
human beings. He added that for a person to draw an ought from an is he has to
understand the factual situation i.e. the is from within not outside. The process
of philosophizing and metaphysical observation must come only when there is
an internal understanding of that factual situation. His conclusion was for the
classical good of the society and the method of achieving what constitute the real
universal principle of Natural law.
Now since Finnis argued that for nature to be well understood one need to draw
conclusions from the inside of what is; the question is, will drawing the inferences
from within make us understand the inference more?
Finnis stressed that the basic forms of human flourishing are obvious to anyone
acquitted with the range of human opportunities; and the general requirement
of reasonableness are likewise as obvious as the norms of rationality, principles
of logic, and cannons of explanation that are presupposed in any explanation,
whether in our practical context or in natural science or analytical philosophy.
From the above statement of Finnis it clearly shows that Finnis followed the line
of theology. These arguments though very impressive cannot stand the test of time
because it was not proven by him.
The theory of Finnis is one which has proved to be of unimaginable importance to
the study of natural law as a subject. It takes its roots from the period of Thomas
Aquinas while taking into cognizance the current realities of our time. It totally
created equilibrium in current jurisprudential discourse whereby other theories
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had taken over the sphere of issues of discourse from the 19th Century down to the
latter part of the 20th Century.

4.1.2 What Natural Law Theories Concerns


Naturalism first laid its origin from the Holy Bible down to the current 20th
century. However, it is from the classicalist up to the 18th Century that is more of
central concern. Therefore the aim of natural law is not directed at the confirmation
of the existence of positive law theory, but to restrict government law so that they
will conform to standard laid down by natural law. In somewhat more modern
terms, the twin pillars of naturalist argument may be said to be, on the one hand,
a proper purpose doctrine in law making, and, on the other, the nature and
limitation of the obligation to obey law.
One significant issue which the naturalist must address is the limit which they must
fix to their argument. Jeremy Bentham once said in an attack on the Introduction
to Sir William Black Stones Commentaries. He argued that:
The Natural tendency of such doctrine is to impel a man, by the force of
conscience, to rise up in arms against any law whatever that he happens
not to like.
Naturalism therefore goes to remove any form of conflict or anarchy when issues
come up. But although the topic was mainly developed from a different century,
the issues raised have been and will always be of practical relevance to our time.

4.1.3 Tangible Benefit of Natural Law Theory


One significant thing in life is that man and environment (both living and non
living) were created by God. On the first day God created the heaven and the earth,
notwithstanding he created everything else in the next six days. The Holy Bible
also recorded that to God everything was good. But at this perfection man still
had to find other laws which were also sent from the beginning. The disobedience
of Adam and Eve however created an environment of imbalance and so where any
imperfection is noticed, something perfect must be imputed. The conclusion to
be drawn from it is that there is a higher obligation than simple obedience to the
positive law of a state. These questions were suggested by Lloyds.
Firstly, he said that there was a problem of defining injustice. For saint Thomas
Aquinas the force of a law depends on the extent of its injusticeaccording to the
rule of reason. But the first rule of reason is the law of nature, therefore, every man
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made law must be tested whether it conforms to the law of nature and if it does not
then it is no longer a law but a perversion of law. Saint Aquinas laid down various
qualities of a good law. His views about such good law that promoted common
good was that, it must promote religion, distribute burden fairly, it must serve and
promote common good and finally must be within the authority of the law making
body in the state.
Secondly, he asked who is to decide that a law is unjust or just in a country. Is it the
professionals? Or lay men since we said the test for a just law is the law of nature?
These questions have ever created problems for Aquinas. But Fuller preferred
the professionals since they were people who have gone through the tasking
process of learning the law. Although Fullers view is quite logical it can be said
to be myopic. For instance, in the United States decisions in court whether just
or unjust laws are decided by the jury. The jury is made up of lay men and women
who do not necessarily have learning in law. They are picked from all facets of the
society. Now the issue is, are these people professionals? It is clear that Fuller`s
recommendations cannot stand the test of time.
Thirdly, he asked what are the consequences of deciding that a law should not
be regarded as law? Thomas Aquinas stated that such laws which are presumed to
be unjust will not affect the moral conscience of mankind. But he warned about
the consequences of allowing people disobey laws even if such laws are unjust. It
might be a simple justification for unscrupulous individuals to disobey laws even
if they are just. Justice to the judge might be different from justice to the accused
and the prosecution. What is most significant is that justice is seen to be done to
the society at large. Finnis also made his own contribution. According to his view
the unjust law can be disregarded by the ordinary citizen but such disregard must
be done in such a way that it will not affect the society negatively.
Finnis also went further by asking, what will happen if a judge is given an unjust
law to interpret and decide. This law clearly will create injustice and what should
the judge do in the circumstance? Hart argued that if the judge disregards that
law, then it will infringe on the principles of justice. But that does not mean such
unjust laws must always be enforced. According to him, sometimes fidelity to
the law may be outweighed by the worse injustice which enforcing the law might
perpetuate. The practical solution was given by Lloyds in his book where he stated
that all depends on the mode of appointment of the judge and the surrounding
circumstances of the judge.
Firstly, was the judge appointed by the makers of the law to perform their whims
and caprices? Also how much power is the judge given in that system? This
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dilemma is quite thought-provoking. On one side the duty of the judge is to


interpret laws, the laws are enacted by the legislative arm, what it that arm makes
an unjust law that threatens the existence of the same judiciary. Will the judge
interpret the law? It is good to take Lloyds view that he assumed obligation of
fidelity to law is overridden by the circumstances of his appointment. In the case
of NEPA v. Edegbero (2002) 18 NWLR (Pt. 798) 79 Niki Tobi JSC242, though
condemning the law held that his hands were tied. In other words, he could not
make laws. But in the case of Edet v. Essien (1932) 11 NLR 47, the court held that243
it can make laws. In that case a custom was declared to be repugnant to natural
justice equity and good conscience. The conclusion that can be drawn in this case
is that although the primary responsibility of a judge is to interpret laws enacted
by the legislature and not depart from it but sometimes the judge will follow what
is just and morally right when confronted with an unjust law. Since the aim of law
is to promote orderliness and fairness for the common good, a law that shelves
this interest will be seen as condescending to common good. Jurisdiction where
this dilemma has emerged is the Republic of South Africa when the system of
apartheid existed. Should the judge who finds the law he has to apply radically
immoral give up his job as judge and join the revolution?
Firstly, the judge may decide to stay simply feeling that since most of the laws in
South Africa were unjust then what is most important is for him to take cases that
the laws were not morally reprehensible. Secondly, he might feel that he can coin
his according to Lloyds. This does not mean he will contradict the law but it means
that he will find a way not to literarily interpret the law.
Thirdly, the judge might feel that if he leaves the office he might be replaced by a
judge who has less morally acceptable values than himself. The reason gives us the
impression that the judge intends to follow the Thomas Aquinas and J. M. Finnis`s
approach when they said that though the judge has an obligation to interpret the
law as it is but fidelity to obey law cannot override the moral responsibility of the
Judge to the society as a whole.
The second answer to the open question seems to be familiar to Hart`s positivist
jurisprudential analysis. Hart particularly wrote about some discriminatory
(unjust) laws that were vague in some areas of its composition. According to him,
this vagueness gives judges scope to make law and to draw upon moral principles
to reach a decision. This followed the realist thought of jurisprudential analysis
(the realist view will however be considered later in this chapter). What is however
242 NEPA v Edegbenro (2002) 18 NWLR (H798) P.79
243 Edet v Essien (1932) 11 NLR p.47

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more important is that, these Lacunas create a room for the judge to do good
where a law does badly. This may be a reason for the third explanation given. A
more morally conscious judge will choose to take advantage of the vagueness to
do good but a judge who cares no less about ethics; norms or values will simply
interpret the offensive law.
Ronald Dworkin also supported the views expressed above. According to him, he
first talked about a judges professional reputation. He opined that such judges
faced with such dilemmas were to make the interpretation of the unjust law and
make them look good to the society. Dworkin prefers the judge to lie instead of
interpreting the law as it is. This is because he cannot be of any help unless he
is understood as saying, in his official role that the legal rights are different from
what he believes they are. He also commented that where a judge resigns because
he is faced with a controversial issue, this will not help anyone. The dilemma
likely to be encountered by Dworkin can be linked to his view that a judge should
lie if faced with an unjust law. Now the conflicting aspect is if a judge should lie
will it not impinge on his credibility, integrity and competence? Will it not be
institutionalizing corruption in the legal process for current and future judges? It
seems as if the best way out for the judge so that his character will not be impinged
is to resign. Another issue which should be analyzed is whether the lawyers should
take part in the process. Views are in the support that lawyers faced with the same
scenario should resign too since they are part of the judiciary. However, it is quite
clear that the lawyers responsibilities are not only restricted to court room practice,
their jobs run across the court room and leads to other endeavours of life. Instead
the lawyer should stay on and try ensuring that these unjust laws are amended by
participating in civil rights groups (Non-Governmental Organizations). They are
also to give legal assistance to those who have been victims of these unjust laws.
One other indelible attraction to natural law is exposing the deficiencies of the
positivist thinking. Positivist thinkers like Jeremy Bentham and John Austin have
made laws look in the form of a strait jacket, making it look too legalistic. It is
quite clear that before a theorist propose a theory he must have participated in the
work of evaluating and understanding what is acceptable and good for persons in
that society. He must have considered how reasonable this theory will be in that
society. The positivists neither gave reasons nor justification for their command
theory. They only cooked up a definition without following the normal pattern of
jurisprudential analysis.
Hart and Razz also made their views known on law. Their views expounded the
attraction enjoyed by the natural law theory. To Hart, law is described as rules
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for the guidance of officials and citizens. Razz also felt that law is a system of
norms providing a system of settling dispute authoritatively. Their views though
practically in the same lane portend a modern trend in analytical and normative
jurisprudence. They also made reference to the central issue which must be present
in any law. This issue is a particular central view point. Their normative and value
oriented view fall practically in line with the naturalist belief.
Finnis will conclude with the ultimate foundation for law. He calls it practical
reasonableness. In his view, law must pass through this endemic process before
it can be acceptable in a pluralistic society. Law must go through some tests of
society if it intends to reign over peoples life. He further said that natural law must
reason with the peoples ideas and thought and if not it must explain why it will
not. He finally stated that natural law tells us the difference between laws that
are practically reasonable and those that are not. He claims it can create a fusion
between what is practically right minded to a society and to the law. This is the
ultimate benefit of natural law.

4.1.4 Greek Classical Naturalism


If anything is to be said the Greek philosophers laid the foundation for the
philosophical study of Natural law theory. They however were more interested in
exploring its philosophical foundations rather than the development of the law.
The Greek period was a period of recognition of city states which were different
and independent. The Greeks never recognized a universal law although it was
present in each of these city states. The laws were written (although some of them
were not) and indeed unchangeable and fundamental and its usurpation will be
seen as a crime against the state. These laws were however easily changeable by the
state if it so wishes.
The most influential naturalist philosophers during the Greek period were
Aristotle, Plato and Socrates. Aristotle was a pupil of Plato white Plato was a pupil
of Socrates. The three however had different views on the same issue but Aristotle
and Plato were both generally rationalist in their approach in that they considered
good and bad laws and the appropriate reactions to them to be discoverable by
rational observation.

4.1.5 Plato (Idealism and Legalism)


Plato a philosopher was an idealist. He believed that he had higher ideals which
are not open to the understanding of the general population instead a few who
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had intellectual outstanding abilities. He also never disclosed the source of his
belief or reasons behind it. Plato felt the world as a whole should measure up to
better ideals so it will shape its future positively. He made his views known in
the Republic where he stated that the best form of government in a country is a
Autocratic system of government where the philosopher king ruled under a form
of benevolent dictatorship. He feels that the philosopher king must be a person of
sound mental abilities who is able to check and measure societal characteristics
and relate it with existing societal realities. According to him, the utopian ruler
must have good memory, willingness to learn, breath of vision and grace, truthful,
just, courageous and self control. Plato aims at making leaders of a country to strive
at their personal perfection in their society. His view though quite understandable
but in reality not all king and rulers are idealists or philosophers. Take a typical
instance where Dionysius II of Syracuse who although respected Plato but never
fitted the description analyzed by Plato.
Platos philosophy on idealism fits the description given by Kung-Fu-Tzu a
Chinese confusion philosopher who felt that kings should strive at a mandate
given by God whose conduct must be of virtue and grace. He also felt that they
must promote human right (ii) rather than positive law. The ideology was even
posted an official ideology for kings and rulers in China by the Han Dynasty. The
confusion ideology was used as an instrument of guiding royal conduct and law
as relegated to the position of simply settling dispute. Official Confucianism was,
however, compromised by a number of other influences which introduced more
than a slight element of harsh reality to imperial Chinese government.
Platos idealism creates a benchmark which leaders must measure up to. These
views are sometimes described as unattainable since no human being can achieve
the ideal characteristic height that Plato proposes. However there is no doubt
that a leader who makes absolute responsibility to achieve greatness must have
these qualities. Contemporary leaders like king Louise of France and Napoleon
Bonarparte are leaders who have shown high commitment to Platos kind
of idealism.
In Nigeria, leaders of political groups like Obafemi Awolowo, Dr. Nnamdi Azikwe
and Tafawa Balewa have shown idealistic tendencies. Also President Barrack
Obama (President of America) has shown virtue and rite that Plato vehemently
commented on. Platos virtue and idealism have however been corrupted by some
leaders of our time. Rulers like Fidel Castro and Idi Amin though showing that
idealism spirit but lack the virtue and rite that is the central focus of Platos idea.
This however did not put a stain on Platos virtue and rite; it only reinforces the
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need for change which according to Barrack Obama we must strive towards. Platos
views on idealism are interracially relevant to our current society as a whole.
Furthermore, Plato goes into another relevant issue which is the need to enact
laws (codes) instead of the unwarranted dictates of the tyrannical leaders. He feels
that legal codes should guide human conduct instead of the dictates of rulers. He
also believes that Legal codes should although be authoritarian but not tyrannical.
That is why he feels that the law should not only punish but be persuasive. In
effect law should encourage people to learn from their mistakes rather than die
from their mistakes. This balance has created a foundation for current ideology on
abolition of capital punishment in the contemporary world today. Countries like
Australia and most European countries have adopted the classical ideology since
the aim of punishment is to correct evil behaviour rather than kill the offender.
This combination of persuasion and punishment helps the individual involved
learn from his misdeed causing communal reconciliation.

The obligation to obey law by Plato


Plato proposes that every law must be both persuasive and sanctionable .But what
if a law does not have these qualities? Or what if a law was enacted to perpetuate
injustice? The answers to these questions were answered by the writings of Plato
in The Last Days of Socrates his teacher.
Socrates was seen as a threat to the Autocratic Athenian government and he
was charged with sedition with intent to corrupt the youth against constituted
authority. He was later found guilty in trial and sentenced to death but his
execution was delayed on ritual grounds during the ceremony of delos. Socrates
was however given an option to escape from prison and go into exile. This would
relieve the Athenian people and government of the odium and guilt of his death.
In Platos writing he talked about two issues. The first was The Apology and the
other was Crito. Both were written by Plato which were argument and counter
arguments of Socrates and Crito. The result gave us the philosophical insight on
the duty to obey law. The first issue was The Apology by Socrates of his claims
before the Athenian tribunal set up to try him. The second was Crito which was
a conversation (Dialogue) between Socrates and Crito on the suggestion that
Socrates should escape from prison and the extent of his obligation to obey the
law of the land. These Dialogues deal with the issue of the existentiality of unjust
and tyrannical law enacted by the Athenian authorities at that period.

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In The Apology Socrates claimed that the state authorities have no right to enact a
law that forces a man to commit evil. The result was a blatant refusal by the victim
to commit such evil. What Socrates means is that the person under such an evil
command has the right to refuse to obey that instruction. Socrates made his view
clear when he stated that:
The Difficulty is not much to escape death; the real difficulty is to escape
from doing wrongwhen I leave this court I shall go away condemned
to death, but (my accusers) will go away convicted by truth herself
of depravity and wickedness (Plato, Apology, 38A 39 D, transl. H.
Tradennick, in the last days of Socrates, p. 73).
Plato further stated that he and others were once ordered to order that the Lean
of Salmis be unjustly executed. He confessed that if the 30 tyrants were not
over thrown from government he would have refused the order and he would
be executed.
The next issue is the Crito which was also a dialogue on the obligation of a citizen
to obey law. The Crito however claims that if the state commits evil by enforcing
an unjust law a citizen is under absolute obligation to obey that law. Socrates feels
that he has no choice but to obey the law even if it is detrimental to his interest.
Three reasons were given by Plato in the Crito.
The first seem to reason that an individual who stays in a state is presumed to have
accepted to obey all existing law. To him, the state authorities provide security and
infrastructure which the citizen have used, therefore consenting to their authority
in that domain. Plato stated that:
whoever stays (in the state), seeing the way in which we decide
our cases in court and the other ways in which we manage our city, we say
he has thereby, by his act of staying, agreed with us that he will do what
we demand of him.
In case an individual disobeys the state the individual will be said to overthrow and
destroy the law and the state itself. The gravity of these offences was declared in
the personified law of Athens which was made to ask Socrates straight forwardly:
Do you intend anything else by this (disobedience)than to destroy
boththe law and the entire cityat least as far as you can? Or do you
think the decision of the courts are set aside and made ineffective by
private citizens?

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The two issues i.e. Crito and Apology seem slightly confusing when looked at on
the face value but the two are different in their contexts. Though the two are simple
dialogues about the obligation to obey law the Apology is saying you must not
obey law while the Crito is saying you should. However, in the Apology a person
is not under an obligation to obey law and do evil while in the Crito a person is
under an obligation to obey law even if evil is done to him. The two are different
in their contexts.
The citizen according to Socrates has 3 possible options open to him, if he finds a
law unacceptable to his personal standard.
They include:1. Persuasion
2. Relocation
3. Obedience
The citizen is expected to persuade government authority if he perceives
a particular law to be unjust and the citizen must find ways of persuading
government authorities to amend that law. If government refuses then he has the
choice to relocate to another city state where he finds out that their laws are more
personally acceptable to him. A citizen who does not want to relocate will have
to accept his fate and obey that unjust law even if it means the loss of his freedom
or life. Persuasion seems to be the best option open to a citizen of a state. He can
do this by simply participating in the political process or joining a pressure group
of sort. This would almost be impossible during Socrates time where the rulers
were totalitarians.
However, it would be difficult to leave a city where a citizen is born and go to
elsewhere. The new place he might relocate to might have laws that are generally
unacceptable to normal human standard causing a worse situation than where he
was before. Obedience will however lead to the execution of a citizens conscience
which can lead to the moral dislocation of a human being.
Finally, it seems as if what is left for Socrates and Crito is to persuade Athenian
government authorities to change their tyrannical law and govern according to
morally acceptable societal conditions.

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4.1.6 Jus Gentium (International Law)


This is particularly limited to the Roman population; the best representative of
this philosophical thinking is the Roman Orator, Cicero. Cicero, a natural law
protagonist, defined natural law as right reason in agreement with nature. He
proposes that positive law should be annulled if it contravenes natural law. He
intuitively said that if a legislature claims that adultery and other negative vices
are legal then they are like a band of robbers who make law in their assembly.
Cicero`s view did not help natural thinking that much; his definition of natural
law as right reason in agreement with nature clearly raised some latent questions.
Was the standard natural because they derived from human nature or because our
natural human reason could lead us to them, or because they were to be found
in the physical world about us? These views were however not followed by other
Roman legal philosophers who considered the issue higher law as basic feretories.
However, what necessitated the development of natural law is conquest and
international commerce. The Romans colonized surrounding nations as a result of
their economic and military might causing legal permeation into other countries.
What is significant about these Roman jurists is the juxtaposition of natural law,
legislation and international law. They sometimes confused their legislations
with the law of nature and sometimes called their laws international law. This
combination showed how the Roman jurist distorted facts by not differentiating
what the law is and what it ought to be. Practically they confuse natural law with
positive law.

4.1.7 The Medieval Period


4.1.8 Thomas Aquinas
The Catholic Church played a significant part in the development of natural law in
the medieval period. Two vital principles that can be drawn from these principles
is the unity in the belief in God. And also the supremacy of that law; these two
formed the baseline for the medieval period.
The Impact of Aristotle on Thomas Aquinas
Aquinas posited that positive law played a significant part (both natural and
proper part) in the political and social development and lives of the people it
covers, that such positive law is not concerned with sin. Aquinas further posited
that the aim of law was not only to punish sinful acts but also it has the capacity to
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set out guidance for good living in the society it regulates. When we look critically
at Aquinas` classical definition of law it would be clear that he combined the
qualities of natural law and positive law. He stated that law is nothing but a rational
regulation for the good of the community made by the person(s) having power of
government and promulgation.
The claim that law is a rational regulation for the good of community fits the
description of natural law but the promulgation aspect and the sovereign person
having power of government complies with the positivist view of law. Hence,
taking into consideration Aquinas definition of eternal law which he also combined
with natural law and positive law qualities, he simply said that law is Gods law
as it relates to mans actions and positivist law making. He first described law as
God made law which is an essential component of natural law thought. He then
related it to positive theory of law, thus creating a nexus in his combination of the
two theories.
The talk about common good proposes that law should be made for the good
of everybody and not for the good of the promulgators alone. Another important
issue is to determine what the common good is. The phrase, the common good
must be that which the society accepts as not condescending but promoting their
positive development and interest. The common good must be objective to the
society not subjective to the legislator.
Accessibility of ultimate reason to man which was provided in the Thomas Aquinas
scheme of things can only be gotten through two basic mediums. They include:
1.

Divine Law (Eternal Law)

2.

Natural law

The Divine law is law made by God through scriptural revelation made to man,
while natural law is law of nature gauged by rational reasoning and conduct. These
two components are very significant qualities which will significantly improve the
goodness of positive law. These positive laws will be binding on the individual
conscience and also will be enforced by government agencies whose responsibility
falls within this ambit.
For Aquinas, the positive law must be gauged according to the good law proposed
by him. The positive law must combine natural law and Divine law. He gave an
example that there are some laws which are obeyed basically because it is the right
thing to do not because of the jail term attached as a consequence. Majority of
persons do not commit murder because of the punishment which is death. They do
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not also engage in killings because it is bad. This law is good because it has critical
components of Divine and natural law. On the other hand Aquinas proposes that
positive law could be bad if it forgoes the lex divina and the lex naturalis or it might
offend both.
A reaction to these bad laws was made by Aquinas when he said that; A tyrannical
law made contrary to reason is not straight forwarding a law but rather a perversion
of law.
Aquinas stated that the word tyrannical mean such an authority have abused
his God given power and therefore the authoritys subjects are not under any
moral obligation to obey such sovereign. However, he claims that where the nonobservance of a law will cause greater harm to society then such a law though bad
should be obeyed in the interest of the common good of the community. Aquinas
further claimed that if a constituted authority abuses its power, sometimes it is
good to tolerate these laws but that there is a limit to this tolerance. He stated that
Emperor Domitian and Tarquinius Super Bus are typical examples of tyrants who
were properly removed from government.
The summary to Aquinas` claim is that if a sovereign misuses his powers and makes
unjust laws, his subjects are not under a moral obligation to obey those laws. But
such refusal to obey must be done properly so that the consequence of the refusal
will not outweigh the effect of obeying the unjust law. Aquinas` argument might
be confusing but if critically analyzed then the reasoning behind the argument will
be appreciated.

4.1.9 Renaissance and Reformation period


The transition to an age of reason was a time linked with the 16th and 17 century.
The period marked the end to the pro-religion status of European states in Western
Europe as a whole. The states were no longer were governed by divine law but
circular attitudes and behaviours started growing among philosophical groups in
the society.
These periods also led to the development of the Thomist philosophy on modern
natural law theory. Vitoria and Suarez were central figures in these periods of natural
law change. They reacted against what they saw as the Heresies of Lutheranism.
Vitoria and Suarez took their views from St. Thomas Aquinas. However their views
have been developed to face existing situations of our time. Their knowledge of the
theory was said to be independent of Revelation from God. They also held the
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view that natural law can be likened to the law of nature since mankind itself was
governed by it from creation by God.
St. Thomas Aquinas view on the differences between international law, positive
law and natural law was accepted by Vitoria and Suarez at first but was later
rejected. Suarez believed that the ius gentium is absolutely different from the
natural law theory and that the ius gentium is virtually the same with positive law.
From Suarez`s proposition it can be said that the right to own private property
said by the Thomist to be part of natural law is not really that but a part of positive
law. However, John Locke settled the confusion that the right to ownership of law
is not just a positive law right but is also a natural law right.
Suarez also followed this view by simply following the view of St. Thomas Aquinas
on the positive and negative injunctions differentiated by him on the law of
nature. He therefore claimed that while communal land holding was sanctioned
by natural law it was also a negative injunction reminding us that all property
particularly relating to land must be held by the community in common which
must be enforced by the law of the land of that community.
The conclusion that can be drawn from Suarez`s view is that natural law can
sanction the continuation or non continuation of communal land holding and the
choice of the division of such property was left for men to decide for themselves.
Grotius also made his contribution on Suarez`s suggestions. He claimed that if jus
gentium is the same as positive law then the jus gentium must be evidenced in writing
since that is the ultimate attribute of positive law. He further suggested that it is
only then that the jus gentium can be a law to govern relationship between different
independent states. Grotius has been given great credit for the development and
improvement of the jus gentium (international law).
The Thomist thinkers under this period also asked critical questions on whether
the commands of a human sovereign were always binding on its subjects. The
response was that a law under positive law was the same as a law under natural
law (law of nature). Therefore, a person must obey that positive law whether it is
manmade or not. The meaning of this claim is that if a legitimate ruler makes a law,
obedience is absolute since that is seen as the law of nature. And if that positive law
is contravened the disobedience will be like disobeying the law of God which will
attract the wrath of God.
Finally, for us to say that these Thomist thinkers preferred to maintain the status
quo would be an outright misunderstanding of their thoughts. These same thinkers
encouraged the revolution against Saint Thomas Aquinas Divine law before we
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got to the sixteenth century. They also believed in upholding the rights of Indians
of the new world against the depredations of the conquistadores. It was also at this
time that Colonialism was in full blow. Even in this period men of character were
prepared to stand up against tyrannical regimes. What can be drawn from these
periods is that the philosophers at this time spoke from different sides of the
mouth leading to multiplicity of diffused ideas causing confusing situations which
we are still grabbling with.

4.1.10 Social Contract and Natural Law (Thomas Hobbes)


Thomas Hobbes an English man lived during the troubled period in the
United Kingdom. He lived from 15881679. He lived during the period of the
Restoration and the Civil War. His book Leviathan published in 1651 showed how
his environment had affected his thought on the need for peace and order in the
United Kingdom at that period in order to avoid anarchy. The primary principle
behind Thomas Hobbes theory is that:
No man can be subjected to the principal power of another without his
consent.244
He also claimed that the aim and objective of every government is to maintain
peace and order of the people it governs. Hobbes also felt that the state of nature
in which man lived before his theory was a life of solitary, poverty, brutish, nasty
and short, that is:
a war of every man against every man
Hobbes painted the situation as if there was great political unrest and inter-ethnic
strife. What Hobbes thought was that self-preservation is the lesson of natural law;
therefore the primary purpose of the government is to maintain law and order in
society so that law abiding citizens will be able to engage themselves freely and
unmolested in their respective endeavour. The theory starts with the assertion
that every citizen of a country must be willing to give absolute unconditional and
uncompromising support to the existing government in place before he can be
assured of the security of his life and property. This absolute and unconditional
obedience to government aims to rule-out revolutions (civil war) which according
to Hobbes is the worse evil that can happen to any society.
Hobbes stated that ordinary citizens should infer the characteristics of political
obligation from:
244 Locke J. Two Treaties of Government. Vol. 1 p.163-164

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the intention of him that submitted himself to his power, which is to be


understood by the end for which he so submitted
What can be noticed by Hobbes` writings is that though he claims to be a
philosopher graded under natural law theory, the fact still remains that his view
at the beginning fails to recognize the basic norms or values of natural law which
recons itself with the law of nature, divine law and basic appropriateness of legal
composition for a particular group. However, what is significant about Hobbes`
view is that man must strive towards world peace and order before it can be said
that a society exists.
Another important thing to note is that Hobbes tried justifying Autocracy as a
means of achieving peace and orderliness in a society. His Oxymoronic writings
claims to juxtapose the view that a person must put his absolute trust and
obedience in a sovereign authority yet places no direct obligation on the sovereign
to reciprocate his own obligation which is to rule according to the tenets of justice
and fair play.

4.1.11 John Locke (1632 1704)


Locke also made useful contribution on the use of social contract to construct a
natural law doctrine. He disagreed with Thomas Hobbes who said that life before
the social contract was solitary, poor, nasty, brutish and short. He felt that before
social contract there was a state like the state of the Garden of Eden where there
was plenty. However, according to him the only problem was that there was no
security of property. It was this that made man give up the natural state of things
and gave their rights to the state for the ultimate protection of these properties and
entitlement. Therefore, the ultimate responsibility of the sovereign was to protect
his material entitlement.
John Locke in his book Two Treaties of Government (1683) laid down a theory
that man is not under any obligation to obey unjust sovereigns. However, in his
other books Two Tracts on Government (1660) and Essay on Toleration (1667), he
claimed that the subject should passively or conditionally obey the sovereign, but
should not absolutely accept their injustice. The aim of such passive or conditional
obedience is just to recognize the authority of the sovereign. In these books he
further gave basic differences between the sovereign and the subject. In Two Tracts
on Government he opined that the subjects are like the beast that needs to be
tamed. However, in his other book called Two Treaties on Government he claimed

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that the sovereign can also be like his subject i.e. a beast. However, Locke preferred
the subject and sovereign to be like a reasonable person.
According to Locke, the law of nature should override the best insinuation in the
thought of man. He said that when the law of God is not clear to man, man must
follow the law of nature which is the same as the law of reason. Locke also viewed
that all men have been commanded by God to accord with the law of nature.
Therefore when a man has reason he is able to understand and follow the law of
nature. Now the question should be how can man acquire the knowledge of reason
proposed by him? To Locke, the law of nature is the law of the early naturalist
thinkers which means the law of God. To him, these laws were written by God in
the heart of every man. According to him everything to be has already been laid
down in man, and he is under compulsion to perform these laid down procedure
or else there will be sanction from God.
It is clear that Locke never accepted Hobbes secular natural law, instead he
differentiated the two and stated that while Hobbes told us how he thought
men would behave in a state of nature, he preferred rights and duties men have
as creatures of God in a pre-civil society. In terms of the social contract theory
enumerated by Hobbes, Lockes views are quite thought provoking. Locke was
more concerned in the increase in the use of force by authoritarian government
dicing his time. In his analysis of the contract between the sovereign and subject
two fundamental questions were asked.
Firstly, he asked whether the contract was likely to be historically based. This
question was however never answered by Locke causing a mirage of ideas for
Contractarian Theories till date. Secondly, he asked whether it was possible for
every individual in a society to have accepted to give his security to the sovereign.
He also gave two kinds of consent that might have been given. It is either express
consent which means acceptance of the giving of his security by declaration either
by mouth or conduct. It could also be consent by not accepting yet not refusing to
give his security. According to Locke these could be seen as acceptance impliedly
because his presence alone in that state shows that he has accepted to benefit from
whatever security and benefit offered by the sovereign. This is what Locke called
tacit consent.
Locke also stated that the express consent is higher than the tacit consent. To him,
express consent made the subject to be eligible to all the benefit identifiable and
given by the sovereign but a tacit consent only gave him partial citizenship. He has
no right to engage in political activities in that particular state. It only made him
subject to the laws of the land and nothing else. The main aim of express consent is
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quite clear. It creates a social contract between the sovereign and his subjects but
the purpose of the tacit consent only creates a binding obligation on the subject to
obey and be loyal to the sovereign`s authority in whatever circumstance as a result
of their presence in that state.
The biggest problem created by Lockes writing is the question whether there can
be a difference between the express and tacit consent. The fact remains that both
forms of consent have little or no differences causing a confusing situation which
was never resolved by Locke. Locke also wrote about the issue of revolution.
Firstly, Locke claimed that he was not against public constituted authority. He
further stated that for every subject if the sovereign conduct itself in such a manner
that its acts cannot be trusted by the general population, it could be that it acted
unjustly, insincerely or fraudulently. He explains further the issue of relationship
and trust as a legal term. Within trust is the fiduciary relationship which examines
the relationship between the sovereign and the subject. The sovereign is the trustee
while the subject is the beneficiary. There is a fiduciary relationship between the
two whereby each has to do its part for the relationship to work. The subject gives
its security and interest to the sovereign on presumption that the sovereign will
act in the best interest of the sovereign. According to Locke if the sovereign acts
in such a way that would negate public interest then the subject have the power
to take his destiny into his hands and overthrow the sovereign. Locke further
clarified that dissident subject should not revolt against the sovereign just because
he has his own ulterior motive i.e. not for legitimate reason, that if he does so he
would be acting in an unjust manner which also negates the law of reason and
nature. Therefore if a subject revolt on a legitimate reason against unjust policies
constituted by tyrant government, it is not the subjects that are the rebels but
the tyrant autocratic government. He therefore concluded that revolution as
extreme as it may sound is not to be seen as a revenge against person but a form of
restoration of the recreation of a violated order.
Another issue which Locke talked about is the issue of ownership of property. This
issue was however the most controversial contribution he made to Jurisprudence.
He felt that before the law, there was property therefore property was created by
God Almighty who has given man common ownership of it.
He therefore believes in a form of communal ownership of land where everybody
has a say and no one is left out. And people can only acquire such property through
the reward of labour. The responsibility of everybody is quite clear. God gives the
land, the sovereign protects and the subject acquires through the process of labour
and combination of other materials.
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This well thought out views by Locke was however countered by King Charles
I who argued that the ruler can dispose of his subjects property if he sees that
such action will be beneficial to the common good of the society. However, what
is currently obtainable in most countries is the view displayed by law which gave
ownership of land to the subjects. Countries like the United States and European
countries have followed the views expressed by Locke.
This Communal land ownership structure does not exist anymore in Nigeria,
Africas most populated Black Country. Though we took our laws from the
English, we seem to have deviated from this age known principle applicable in
English Legal System. For instance, the Land Use Act 1978 which gave absolute
ownership of land to the Governor (sovereign) is a clear deviation from these
principles. This clearly violates the principles of natural law theory and creates a
perennial domination of the ruler and not the ruled. A law that sweeps away all
the right to ownership of land from the people is a bad law and goes against the
Natural law theory of land.

4.1.12 Social Contract by J. J. Rousseau (1712 1778)


Rousseaus views and analysis of social contract seems to be more familiar with
what was enunciated by Locke. However his views seem to neglect the views of
Locke on ownership of property.
Rousseau accepted that the citizens of a state have the God given right to participate
directly in the control of government by themselves. But this cannot be possible
according to him since not everybody can participate since they still have to do
their own business in life. He stated:
it is unimaginable that people should remain continually assembled to
devote their time to public affairs.
He therefore suggested a form of government where people will choose their
ruler. The ruler will run government on their behalf. He calls it elective aristocracy.
According to J.S. Mills there is a radical distinction between controlling the
business of government and actually doing it.
Rousseau also stated that elected aristocrats must be seen to obey the general will
which according to him is higher than the government. He claimed that if the
government refuses to follow the will of the people, they would be compelled by
the whole body of wills to enforce their rights. He will be forced to be free.

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Rousseau elucidated further that though the British citizens saw themselves as free
people however their freedom only last until they elect their leaders. After then
they are no longer free but subject to the whims and caprices of the sovereign
who could turn against them. The only condition for absolute moral obedience to
government authority is communal participation in that same government.
Finally, what seems common to the three excellent political philosophers is that a
government that wants to exist must govern according to the common interest of
those that elected it. If not, the people have a common moral right to change that
government into one that would best represent their interest. This is the rational
of social contractarianism.

4.1.13 International Law (Grotius)


International law by Grotius seem to believe that natural law is not divine law
made by God but a law which is guided by the law of reason of man. But the
normative significance of moral right depends fundamentally upon there being a
decree expressing Gods will that the right be done. Grotius is not saying that his
form of natural law disassociates itself from Gods decree but he is simply saying
that if there is no divine law an ought does not exist. The absence of God made
decree on a matter will not disentangle a law of reason. Therefore his natural law
jurisprudence employs more of law of reason innate in man than divine law made
by God. The ultimate purpose of Grotius was to have a compendium of laws which
he called international law that will govern the internal and external affairs of states
in the world.
On his view about social contract he believes that the subjects have the moral
responsibility to obey the laws enacted by the sovereign and that under no
circumstance can he refuse to disobey these laws even if they are unjust. He gives
no room for revolution. He also claimed that the sovereign must be guided by
natural law principles of reason and nature. Grotius views are quite straight to the
point, not taking into cognizance that not all subjects will obey it. Hobbes and
Locke`s views seem to be more relevant and well thought through on the social
contract between the sovereign and the subject.

4.1.14 Teleological Analysis


Aristotle was one of the main contributors to teleological analysis during his
period. Aristotle argued that nature reflects inherent positiveness and direction.
He also felt that human beings have an inherent nature to be good at all times and
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what will aid them in their goodness is the proper functioning of the state. He
felt that laws which are well made will be the best facilitator instead of autocratic
forms of governments. He therefore feels that all things whether living or not have
a predetermined end or purpose for positive development and the ultimate is to
achieve something very good for itself and the society.
However, the issue of mankind is complex primarily with the inculcation by God
of rationality where he can choose good or bad, making it not as teleological as it
should be.
Aristotle therefore stated that since human beings whom he calls political animals
are so complex, the state is expected to make good laws which will help bring out
the goodness in man. The makers of the law also need some legal training on law
making whereby such laws they make will help push out goodness in the animal
called man. Aristotles work never considered the effect of a bad law on human
being, his analysis was however limited on the good law and how it affects human
beings. His writing was very limited to good not bad. The reason for this myopic
view was because of the society he originated from. At the 15th and 16th Centuries
Greek society was relatively small and divided into smaller city states. Owing of the
presence of scarce politically educated majority his argument never went further
than it should. His view can therefore be said to have less political significance to
our current large modern democracy.
Cicero also made his own argument known on teleological analysis. In a book
called De Natura Deorum (on the Nature of the Gods) he specifically stated:
divine power is to be found in a principle of reason that pervades the
whole of nature
He wrote basically from his background of Roman religion. He saw law as a
rational Ordinance governing human conduct which at the level of positive
enactment, termed the lex vulgus, and was essentially an exercise of political power
which might or might not be appropriate in terms of the advancement of its proper
purpose. Cicero felt that his divine law (cosmic reason) was accessible to human
analogy through rational thinking, insight and inquiry. This was now called the
natural law theory and it is on this basis that the law maker in any society should
enact his law which is meant for the generality of the populace.
Averroes, a Muslim philosopher, also developed teleological arguments based on
the thoughts of Plato and Aristotle and helped make their works available to other
medieval scholars. His work started in the latter part of the 12th Century. As a
consequence of a strong disagreement between a deistic and theistic view point in
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religious circles during that era, his work was banned in both the Islamic and non
Islamic religious world. His views were based on the existence of only one God.
He finally proposed that the combination of order and continual notion in the
Universe cannot be accidental and requires a prime mover, a supreme principle,
which is in itself pure intelligence.
One significant conclusion that can be drawn from teleological analogy in the
12th Century by philosophers is their linkage in terms of views to Aristotle and
Plato. It can therefore be said that Aristotle is the father of Teleological argument.
His thought shaped other views of reputable philosophers particularly Averroes,
Thomas Aquinas, and King Alexander the great creating a form of uniformity in
philosophical thought.

4.1.15 19th and 20th Centuries Periods of Naturalism


The period of the 19th Century was a period where the law of reason and nature
was not patronized. It was a period dominated by classical positivism and of recent
political philosophers particularly restricted to the United Kingdom and America.
However, in the 20th Century there was a renewal in empirical analysis of natural
law theories partly for many reasons; issues relating to world economic meltdown,
genocide, threat by Nuclear weapons, apartheid in South Africa and beyond.
Philosophers like Stammler in Germany and Del Vecchio in Italy made frantic
effort to form an overriding principle in the name of social solidarity.
British Naturalism started well after the 2nd World War but the United States
existed during this period as a result of the existence of fundamental rights in their
Constitution giving greater scope for the natural law lawyers. In reality natural law
blossomed in the 20th century. The emergence of current and excellent political
and social philosophers has equally helped matters. May be the division of natural
law and analytical positivism in this time might not really hold water after all.
Contributions from Hart, who wrote on natural law, Finnis who proposed for the
restatement of natural law and Fuller who enunciated about the morality of law
cannot be over-emphasized.

4.1.16 Harts Natural Law theory


Natural law and positivist theory have been equated under Harts jurisprudence.
He believes that for a law to be practicable and enforceable in a society, such a
law must have significant components of natural law and positivism. To him the
aim of law is to create a society where there will be equality, justice and peaceful
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coexistence between man and nature. Therefore law must be able to balance the
pendulum in equal sides to create a society where man will live in peace with his
fellow man. For law to achieve this, Hart proposed some substantive rules which
are essential for human togetherness. Hart`s aim is not to make Law or Acts for
society but to mention certain fact of the human condition which will help the
law makers in that society to make their laws which will in turn positively benefit
societal togetherness and not to fuel communal disharmony.
These facts of human condition include:
1.)

Human Vulnerability

2.) Approximate equality


3.)

Limited altruism

4.) Limited Resources


5.)

Limited understanding and strength

In addition to these basic features of human societal coexistence is a natural


necessity for certain minimum form of protection for persons, property and
premises. Even with this well thought out content, Hart still believes that it is not
an assurance for a just and fair society. Hart also tried clarifying that his thesis is
neither aimed at combining physical characteristics of natural law and positivist
theory nor will it produce a society where social order peace and justice will
be automatically ensured. Instead he believed that human beings have used the
excuse of creating a perfect society by instituting unjust laws, political corruption,
discrimination and oppression noticeable with the institutionalization of
slavery, racial discrimination and genocide been perpetuated in the Sudan and
other countries.
It must however be made clear that this fundamental minimum content was not
seen by Hart to replace the supreme or eternal law of natural law theory but it
is a kind of sociological foundation for a minimum content for natural law. Hart
also contended that this minimum content when considered will appear highly
insatiable and vague. He also stated that the process of developing the minimum
content was made by human intuition of the characteristic of man not well planned
out through sociological investigation.
Another noticeable issue in Harts natural law i.e. minimum content is the absence
of the issue of sexual morality in man since it is an important factor in man which
transcends mans control. This urge in man is an important issue which the learned
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authour Mac Cormick points out that humans showed great attention to but
Hart was more reluctant to include issues of sexual morality and conduct into his
minimum content.
Harts minimum content can be punctured in various ways. For example, the first
issue of human vulnerability which posits that human existence cannot be founded
upon the use of violence. This has however not restricted the use of violence on
human beings in the world. In fact, some societies have institutionalized violence
as an instrument against human existence. Take the African tradition as a practical
example where the use of human being as sacrifice is a known fact all through
the length and breadth of sub-Saharan Africa. Specifically the use of body parts of
Albinos in East Africa for magic purposes and to make money. Even in acclaimed
civilized societies like United State of America and Western Europe, abortions,
killings at war and execution of criminals is a practice that have been legalized
into their statute books. The conclusion that can be drawn from this contradiction
is that minimum content based on human vulnerability will always be culturally
biased, or a general principle with stated exceptions.
On the issue of approximate equality, the question which should be asked is
whether our society has really practiced these doctrines? It is clear that there is no
such thing as equality in current societal co-existence. Even in George Orwell`s
epic novel Animal Farm, all animals are equal but some animals are more equal
than others. If this can be practiced and institutionalized among animals that are
regarded as inferior in relation to human beings, how much more than man who is
filled with the melancholy of wickedness to his fellow man. The fact is equality is
more of a myth than reality.
A typical example of the issue at hand can be drawn from the issue raised by
the Common Wealth Commission when they visited Port Harcourt, Nigeria in
July 2009. The Commission claimed that the Nigerian Liquefied Natural Gas
Company (NLNG) which is controlled by Foreigners (whites) discriminated
between Nigerians and non-Nigerians in the use of their means of transportation
to their plants. Nigerians are meant to pass through the sea which is more insecure
(as result of Niger Delta Militants and sea pirates) and Foreigners are to travel by
means of Helicopters (which is much safer).
The delegation claimed that this demarcation between Nigerians and nonNigerians is a camouflage which simply discriminates between blacks (Nigerians)
and whites (non-Nigerians). They claimed that if black non-Nigerians want
to travel they will be compelled to pass through the jetties. It can therefore be
concluded that the idea of equality or non-discrimination is essentially a value215

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judgment which cannot be derived from any assertion of speculations regarding


the nature of man.

4.1.17 The Restatement of Natural Law Theory (Finnis)


John Finnis one of the most authoritative and modern natural law philosophers
of our time has made revolutionary views known about the Natural Law theory.
Firstly, he claims that central tenets of natural law are not really essential to it. He
also argues that the belief in morality in natural law theory is wrong. He went on to
say that the laws enacted in a country which counters any natural law principle are
not necessarily null and void. He finally claimed that the protagonists of positivism
who disagree with him are not necessarily anti-naturalistic.
John Finnis defined Natural law as: the set of principle of practical reasonableness in
ordering human life and human community.245
Finnis believes that there are certain goods for human beings. And every human
being must strive to achieve this goodness which he drew from Aristotle and Plato.
He listed about seven of these forms of good.
1.) Life
2.) Knowledge
3.) Play
4.) Aesthetic Experience
5.)

Sociability or Friendship

6.) Practical Reasonableness


7.) Religion.
According to Finnis man must have life in order to attain the stage of self
determination without life man would not achieve the basic good that John Finnis
talks so much about. Finnis also mentioned knowledge as very significant for man
to achieve this goodness. According to him, knowledge removes self-proclaimed
ignorance and superstition. Play is also an important fact; he simply said we should
engage in such practices which though have no prime significant but the act of play
itself. In terms of Aesthetic experience he believes that achievement of goodness
correlate to appreciation of beauty. Such beauty could be in a thing one sees or a
245 Finnis John. Natural Law and Natural Rights. Oxford University Press 1980

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human being itself. Finnis also dwelt extensively on practical reasonableness. Here
the ability to think well and make practical decisions when faced with challenging
situation that will shape one`s life style and character came to the fore. And finally
the issue of religion which dwells more on the origin of cosmic order and of human
freedom and reason is equally examined.
An important issue which has affected the basic good advanced by Finnis is the
peculiarities that exist in different societies. Every culture in a society has its own
peculiarities which make it different from that of its neighbours. Therefore creating
a possible scenario that can cause what is acceptable in one culture may well not be
in another. The basic good advanced by Finnis is categorical rather than specific in
form and might obviously find particular application in a variety of ways.246
Another critical controversy that has rocked Finniss basic good is the situation
on how choices are to be made between basic good, should any of them prove
incompatible in any given situation.
The next issue to be considered is the test of practical reasonableness. The goods
mentioned by Finnis in Natural Law and Natural Rights are to be determined in
terms of its application as criteria of evaluation in the context of the operation of a
real society and it is obviously necessary to set up structured scheme of assessment.
This can be done by the medium of test of practical reasonableness.
These tests were enumerated by Finnis in Natural Law and Natural Rights.
They include:
1.) A coherent life plan, meaning that which contain good intentions or
harmonious intention whereby there is commitment to arrange ones
life positively.
2.) There should also be no discrimination among values, that is to say that
a person may not individually choose to aspire to a particular Good but
that confers no entitlement to regard that good as devalued.
3.)

Finnis believes that there should be no discrimination of any form among


people with different religion, race or nationality.

4.) Finnis also canvasses a flexible approach which he calls detachment and
commitment. These approaches should be towards life i.e. changing
circumstances relating to his needs and others.
246 Finis John. Moral Absolute: Tradition, Revision and Truth. Catholic University of
American Press. 1991

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5.) Finnis believes in the existence of efficiency within reasonable limits.


Whatever we do must be efficiently done but such quality must not go
beyond the morally right. If it goes beyond it will be seen to be both
irrational and immoral.
The effect of this is that no basic good should be degenerated below another.
Finnis further canvasses absolute recognition and respect for the common
good of a society. According to him every assessment must be inseparable from
these requirements.
Finally, he believes that man must respect his conscience at all times and such
conscience whether right or wrong must be strictly adhered to, if such is not done
it means that such a person has acted immorally or irrationally. All these basic
goods and practical reasonableness if merged, according to Finnis, will help create
a just and balanced society. He also felt that the two when combined helps make a
perfect hybrid of mainstream naturalist argument.
John Finnis further made excellent contribution on natural right derived from
natural law. According to Finnis this can be derived by the proposition of practical
reasonableness. In his write up he said:
it is the lawyers reasonableness to choose directly against any basic
value, whether in oneself or in ones fellow human beingcorrelative to
the exception less duties entailed by this requirement areexceptions
human rights.
The effect of Finnis argument is therefore that there are certain rights which must
be observed by instituted authority and that these rights are generated by the
common good listed by Finnis.
These rights promulgated by Finnis include:
1.)

Right not to be deprived of ones life.

2.) Right not to be led astray in the course of conversation.


3.)

Right not to be condemned unjustly

4.) Right not to be denied procreative capacity


5.) Right to be accorded respectful consideration in any assessment of the
common good.

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These rights were provided for in the Nigerian Constitution which had its origin
in the Fundamental Declaration of Human Rights.247 This shows that Finniss
natural rights have some legal backings either in the international legal system or
in our local laws.
Another significant and fundamental observation on the arguments by Finnis is
his non recognition of the presence of God in the order of things. Though he was
a staunch follower of Aquinas and a committed Christian, he never accepted that
the natural law had a relationship with God. He also thinks that if his arguments
were accepted and understood, one would believe in an uncaused cause of the
universe. His arguments are however enticing to theist who do not believe in the
presence of God and in the origin of things.
John Finnis also made further revelation on his views on the obligation to obey
law by a citizen. One thing about his view on this matter is the subtleness of his
approach compared with other natural law writers or classical positivist writers.
He mentioned four types of these obligations which include:
Sanction based obligation
i.)

Intra-systemic formal obligation

ii.) Moral obligation


iii.) Distinct collateral moral obligation.
Finnis was quite critical of the first three forms of obligation. According to him
it was similar to the classical positivism of John Austin, Jeremy Bentham and
H.L.A. Hart. He also merged the sanction, formal and moral obligations. This
would therefore also follow the classical positivism earlier mentioned. In terms
of distinct collateral moral obligation he says this is the crux of the matter. He
says that a citizen must obey the law of the state, even if that law is unjust and
bad. If he refuses to obey a law on the excuse that the law is unjust or bad that
citizen places at risk the whole state. The citizen therefore has a distinct collateral
moral obligation to obey such a law, even if the law is not morally excusable to the
citizens conscience. The victim here will be the citizens conscience not the entire
society. And this is what Socrates in the Arguments of Plate to Crito guarded against.
Socrates does not prefer the conscience of the individual but that of the state; and
if so Finniss view can be countered effectively.

247 Constitution of the Federal Republic of Nigeria 1999 FRN Chap. IV Section 33 44.

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John Finnis also made known in his argument on the good citizens reasons to obey
the laws of a state. He made it three stages and these stages, it should be known,
are based on Finniss practical reasonableness. They include: that the common
good demands compliance with laws whether good or bad. Also when a conduct
is stipulated by law compliance can only be rendered by observing such conduct.
In effect that conduct written down in the law must be performed by the citizen.
What is very distinct about Finniss writing is the combination of critical elements
of naturalism and positivism. Finnis believes that obligation must both be formal,
moral and sanctionable. This combination was simply obligation. He concluded
in his claim that there is a collateral obligation to obey the combination. Yet he
argues, it is misleading to study law without laying critical emphasis on natural
law. The question should now be asked, where does the pendulum swing? Is Finnis
talking from both sides of the mouth?
Finnis seems to be arguing from the naturalist side of the divide. While following
the staunch views of famous naturalist philosophers like St. Thomas Aquinas
and Cicero, he however takes into cognizance current modern realities. This
contribution by Finnis has led to the improvement in the philosophical question
on what law is. It does deny the theories of law but he has contributed significantly
to modern naturalist revival. He creates a sort of balance between these theories of
law which never existed from the 19th to the 20th century.

4.1.18 The Morality of Law (Fuller)


Lon Fuller is one of the most contemporary contributors to natural law thinking.
His views were a total departure from the 17th and 18th Century philosophers who
believed in the divine nature of law i.e. God made laws. He rejected the assertions
of Aquinas that laws should conform to Christian doctrines. He followed the
views formulated by Aristotle who strove to achieve one basic purpose. Lon Fuller
once said:
I discern, and share, one central aim common to all the schools of natural
law, that of discovering those principles of social order which will enable
men to attain a satisfactory life in common.
He believes that the aim of law is to achieve social order in a society. To him, the
fundamental tenets of natural law are an affirmation of the role of reason in legal
reasoning. Fuller made various claims; one of the most significant is the accretion
that the reasoning on some issues could be objectively grounded in human nature

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as such. His view of human nature could however not be ascertained. He however
gave an illustration on this matter, thus:
Five men in a motor boat in the pacific, strangers with different skills
and no hierarchic ranking carrying on a joint task with no principle of
organization other than recognized human need.
This illustration however did not help much instead it seem to reduce human
nature to little more than necessary of the situation. He also made specific
reference to the issue of means which according to him is more significant than
the ends. This is however not in concordance with natural law which aims at the
ends not the means. These views were presented when he talked of mastering a
segment of reality.248
However, this was vehemently denied by Fuller who claimed that he believed in
the integration of the ends and the means rather than observing one. According
to him there must be an interaction between the two, we cannot have an end
without a means and vice versa. Fuller first stated that the connection of law and
morality is a necessary one. Fuller further presented eight routes of failure for any
legal system. These principles were described by him as the internal morality of
law. They are internal because they are implicit in the concept of law. They can be
described as morality because they set up standards for evaluating official conduct.
These eight routes include:
1)

The absence of rule of law, which leads to ad hoc and inconsistent


adjudication;

2)

Failure to publicize or make known the rule of law;

3)

Unclear or obscure legislation that is impossible to understand;

4)

Retroactive legislation;

5)

Contradictions in the law;

6)

Demands that are beyond the power of the subject and the ruled;

7)

Unstable legislation ( daily revision of laws);

8)

Divergence between adjudication/administration and legislation.

Fuller listed these classic problems in his book The Morality of Law and gave a
story of an imaginary king called Fex who tried ruling his kingdom but found out
248 (1946) 59 Harv. L. Rev. 376

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that he was unable to govern well whenever any of these conditions are not strictly
adhered to. According to him, every law must take cognizance of this pit hole
so as not to have the same problem as the imaginary king. In conclusion, Fuller
claims that if these guidelines are met in a legal system of a state, such a state will
be governed under the principle of rule of law and justice and this represents the
internal morality of law.

4.2 Positivist Theory of Law


Positivist theory of law is a philosophical part of the meaning of law which regards
law as a formal concept subject in no way to moral proposition or ideology. This
however does not mean that the concept of law and morality cannot be integrated;
it only tells us where the positivists are coming from. After all, naturalist theory
came before classical positivism which actually came into fundamental relevance
in the last one and half century.
One significant point to note in the study of positivism is the multiplicity of views.
This should however be seen as an aberration since answers to basic questions
like what is law have created multiplicity of answers from different individuals
relevant to our legal system. Even our earlier analysis of natural law theory have
generated diverse views leaving us to wonder if the study of naturalism is in itself
positivism or sociological.
What is to be noted in positivist analysis is the multiplicity of ideas from John
Austin and Jeremy Bentham to Hart and Finnis. It simply shows that though men
are alike, they still have their peculiarities that make them unique. What is most
important however in this case is that though there are multiplicities in the views
of these authors who are commonly called positivists; it will be discovered that
they tend to have something in common. What is common to the positivist is that
every law must be formally written down, must possess element of command and
sanction; it must also have a sovereign and a subject.
The origin of classical positivism can be traced to Jeremy Bentham and John
Austin during the 18th and 19th centuries. This could be as result of the relevance
it has come to assume in these times. During this period, there was the need
for creditability of law as a result of increase in the population and commercial
activities, states also became more organized creating a further need for proper
codification of laws so as to promote the development of justice system in the
different states of that time.

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4.2.1 Jeremy Bentham And John Austins


Positivism Theory of Law
Jeremy Bentham is the founder of positivism. John Austin who was his student
also made outstanding contribution to the study. Bentham was quite discontented
with the general view of jurisprudence at his time; this made him proposed the
positivist theory of law which largely countered the naturalist theory of law.
He made his views known during the French Revolution where he expressed his
concern in the complaint that:
The natural tendency of such (naturalist) doctrine is to impel a
(person), by the force of conscience, to rise up in arms against any law
whatever that he happens not to like. What sort of government it is that
can consist with such disposition, I must leave our author (i.e. Blackstone)
to inform us.
Bentham is of the view that the mere fact that a group of citizens of a state
disagree with government policies, does not give them the excuse to overthrow a
properly constituted authority. Also Bentham tried developing a form of scientific
jurisprudence which aims at differentiating the is from the ought. To him, law as
it is should be differentiated from what it ought to be. He called the is expository
and called the ought censorial. According to him, every law should be taken as it is
but this does not mean that he disagreed with proposing a better law. He only feels
that when doing this there must be a demarcation. Bentham has made various
contributions on the censorial approach but it is his expository approach that has
made more impact in current legal reality.

4.2.2 Command theory of law


The command theory of law can be derived from the definition of law by the
classical positivist. They believe that law is a command handed out by a sovereign
to an obedient subject which must be backed up by sanction. What is significant
under this elementary definition is that:
i.

There must be a command;

ii.

There must be a sovereign;

iii.

There must be a subject and

iv.

There must be a sanction.

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The relationship between these salient characteristics is quite obvious when we


consider current realities in law making. When a law is made by the legislature
or anybody authorized to act on its behalf, the reason for such legislation could
be because a societal anomaly has been noticed, thereby inducing government to
enact laws for the purpose of correcting such wrong.
For the correction to take into cognizance the complex nature of man and his
melancholic evil tendencies, the legislation must come in the form of command.
When considering some of our laws in Nigerian legal system, most words come in
the form of command using the provocative word shall as a compelling instrument
to action. There must also be a sovereign which must be properly constituted by
individual from that state. The governors must also have the governed that must be
subject to their authority. They must equally play their part as important members
in the circle. And finally there must be sanction which is a compelling instrument
to action.
All according to Bentham is very necessary for a state where laws will be said to be
respected. All the prime characteristics must be present for there to be a balanced
state. It is therefore good to consider these basic features of Benthams theory.
Command
John Austin and Jeremy Bentham believed that law is best understood as a
command from a sovereign to his subjects backed by sanction. The Command
aspect is the point of discourse here. When a person in a position of authority
tells you authoritatively to refrain from doing something or do something and that
person threatens you that if you do not perform or refrain from performing that
act he will sanction you which could be in any form then that order is a command.
What is however more significant about this, is that the commander must have the
power to commit an act that could be regarded as sanction and the other subject is
not in a position to refute these threats.
John Austin continued that if a law enacted by the legislature or a commander
does not have this command component or insinuation then it simply means
that the legislation or order is not a law. Austin further asserted that if a sovereign
makes a command and he later dies, a person who fills that position is the current
sovereign who can choose whether to enforce that command or not, as he becomes
the current commander.

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John Austin also commented on the relationship of custom and his definition of
law as a command. He felt that before customs are legislated upon, they are mere
rules set by options of the governed and sanctioned or enforced morally.However
until these customs are legislated upon by the legislature of a state or commanded
by the sovereign or even judicially noticed by the judiciary, it cannot be a law that
can be enforced by the sovereign. Instead it is something inferior to that law that
has been legislated upon. This is similar to the current Nigerian legal system where
an Act of the Parliament is considered superior to customary law hierarchically.
The Sovereign and the Subject
Jeremy Bentham defined the sovereign as:
That person or assemblage of persons to whose will a whole political
community is (no matter on what account) supposed to be in disposition
to pay obedience and that in preference to the will of any person.
John Austin further proposes three ways of identifying a sovereign. He claimed
that a sovereign can be identified if:
1.

the sovereign is not in the habit of obedience to any superior;

2.

the sovereign also receives habitual obedience from the majority of


the people;

3.

and the society (including the superior) is a political society and must
be independent.

Bentham and Austins view of the sovereign can be compared with the period of
military rule in Nigeria and most African nations where the sovereign was a single
individual who took over power through military coup detat.
He demanded authority and gave out military Decrees which everybody must
obey. Any form of opposition will not be tolerated under this form of political
system. Sovereign rulers can also emerge during democratic government like what
is happening in Niger Republic currently where the serving president Mamadou
Tandja sacked the parliament and judges just because they refused backing his
bid for extending his tenure in office as a democratically elected government. This
form of absolute display of power is akin to Austins form of analytical positivism.
He also argues that if a political society has two sovereign-rulers, that society will
be seen to be divided into two or more entities having different sovereign leaders.

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Austin further proposed that a sovereign in a state must have ultimate power
without any limitation from any quarters of government. He feels that no group
or person(s) can impose any form of legal duty on that sovereign. However, on
this issue, Bentham has held the opinion that a limited sovereignty was possible
and should be conceived simply as correlative to a limited habit of obedience. As
he says the Jews would have done everything else for Antiochus but they would not eat
his port
Austin finally said that the parliamentarians were simple trustees who hold office
on behalf of the people they represent and consequently the sovereignty always
reside in the king, pears and the electoral body of the commons.

4.2.3 Criticism of J. Bentham and J. Austin Theory


Bentham and Austins theory of classical positive theory has been widely criticized
by various authors and these criticisms have led to the virtual extinction of the
theory. Bentham begins by letting us know that law is a command given by
somebody to another person.
First of all, a command means an order given by somebody who has an
unconditional obligation to obey law. In Nigeria today, who can be said to be the
commander, is it the legislature, executive, judiciary or even the people? Clearly,
the legislature makes laws but they do not enforce them. They can only see
how these laws are enforced. The executive also is not the commander. It does
not make laws; its responsibility is to see to it that these laws are enforced. The
executive action does not come in command form. The judges have the sacred
duty to interpret the laws. They however make judicial orders which are enforced
by some special organs of the executive.
Finally, are the people the commanders? In a democratic setting like ours it seems
as if the people can only influence government policies but not to give commands.
Dias once said that:
To attribute commands to people, who have neither Commanded nor
believed that they have done so, is a fantacy
The fact still remains that, Austin and Benthams ideas are more like fallacies than
reality. Though government legislations sometimes come inform of command but
there are some laws which do not come in that form. For instance, the Marriage
Act249does not compel a man or woman to marry; it only tells us how marriage
249 Cap M6 Laws Federation of Nigerian (LFN) 2004

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can be contracted. Also the Wills Act does not command us to make testamentary
disposition of our properties. In fact, a man can decide not to make a will at his old
age and he will not be said to have violated any law.
We can therefore conclude that Austin and Benthams view about the law being in
the form of a command is not tenable since not all laws are couched in a command
form. But their view that law must be formal no doubt has some beneficial legal
validity as it has helped so much in the development of legal jurisprudence.
J. Austin and J. Bentham also claimed that the law must be made by a sovereign. As
said earlier there is no sovereign in our times as the entire State in international law
is presumed to be sovereign and the sovereignty of a State lies within its territory.
Firstly, a sovereign can be said to be any person or group of persons having absolute
authority to govern a state. He is not also subservient to another in any form. That
means that everyone delegates his/her authority to him.
In Nigeria, who can be said to be a sovereign? Is it the Executive who can be
impeached by the Legislator? The Executive is also subject to the judicial arm of
government who must obey such orders given by that arm. The responsibility of
the judicial arm of government includes adjudicating of cases brought before it.
The proposition that all laws made are commands of the sovereign is only tenable
in a Military era. After Nigerian Independence and other African countries most
have experienced military intervention into their main stream politics. Whenever
they forcefully take over government they suspend some parts of the Constitution
which usually prescribes that their action is illegal.
They make laws without resorting to anybody for consultation; their laws are
usually through fiat or Decrees. Military regime is familiar with Bentham and
Austins command theory of law. The sovereign will be the Federal Military
Government and their Decrees will be in form of Orders which must be followed
without any objection. This form of government is no longer generally acceptable
to the civilized world. Every government must be brought into power by legal
and legitimate means not by violence. Even the British Sovereign which may have
propelled and influenced the two philosophers to propose the theory at the time
had Parliament; as the Queen do not have absolute power.
Austin also proposed that every law must be backed by sanction. The fact is that
though most laws have sanctionable characteristics, sometimes a law might not
be in that form. The aged man in our earlier example will not be visited with any
sanction if he fails to make a will. The rationale behind Austins view is that human
beings have this endemic tendency to go against public authority and this must
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be guarded against. But to generalize and say that every law is of a sanctionable
character is to say that all human beings are saints. Ronald Dworkins critical
analysis of Austins view on law has in itself nailed the coffin to Austins proposition
of law. He opined that:
Austins analysis fails entirely to account for, even to recognize, certain
striking facts about the attitude we take towards the law. We make
an important distinction between law and even the general order of a
gangster. We feel that the laws structures and its sanctions are different in
that they are obligatory in a way that the outlaws command are not
Austins analysis has no place for any such distinction; because it defines an
obligation as subjection to the threat of force, and so found the authority
of the law entirely on the sovereigns ability and will to harm those who
disobey. Perhaps our feeling of some special authority attaching to the
law is based on religious hangover or another sort of mass-deception. But
Austin does not demonstrate this, and we are entitled to insist that an
analysis of our concept of law either acknowledges our attitudes, or show
why they are mistaken.
Much of Austins deficiencies were however remedied by H. L. A. Harts analysis
of law when he paid close attention to some significant factors like beliefs, values
and norms when analyzing law.

4.3 Classical Marxist Theory


Introduction
Many factors have led to the dramatic devaluation of Marxism in the 19th
Century. Firstly, it was the collapse of the Soviet and East European Communism
and secondly, it was also caused by the adoption of the policies of glasnost and
perestroika by the Gorbachevs Administration. The down turn can however not
be said to be an abolition because some countries in the world has kept faith
with Marxs views. Countries like China, North Korea and Cuba have continued
to practice Marx theory. However, what is significant about China and Cuba is
that these countries have shown signs of moving towards Capitalism. Only North
Korea has been totally faithful but the North itself has been accused of using the
theory as an instrument of state domination and tyranny. Whatever might be said
Communism is still an idea to be reckoned with.
In recent times some countries have shown their intention of trying to revert
back to Marx classical theory. Countries like Venezuela and Russia are practical
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examples. It is therefore apt to say that though Marxism is shrinking in relevance


in most countries, it is still improving in relevance in some countries.
Marxism as a theory was propounded by Karl Marx and Frederick Engel. They
rejected what they viewed as the idealism of contemporary European societies
thought and sought instead of a scientific analysis of the processes of social
development. Frederick Engel believed that the primary stimulant for development
in a state is the state. The state according to him is more important in relevance
than individuals which consist of that same state. He also believed that citizens of a
state will only find fulfillment if they perform their roles properly in that state and
this ideology fits with that practiced in Russia after 1870 of imperial German rule.
Karl Marxs view was however different from the Hegelian Dialectic proposed by
Engel. Instead he believed that the principal agent of economic activity was the
economic class-relation. Marx believed that what determines the economy of
the state is a superstructure controlled by some economic class who can decide its
form, purpose and trajectory. It is in this sense that Marxist thought is said to be
materialist. He therefore argued that whatever form or change the economic class
chooses to follow, such a process will be spasmodic and more or less violent. This
is the motivation that makes Marx clamour for change in his society.
Marx further claimed that when economic figures are controlled by some economic
agents who leave the means of production in common hands, such process will
gradually shift the critical factor of Economic activity into classes creating two
critical classes. It creates a superior and inferior economic class whereby both
will be measured according to their ability to influence the means of production.
It is this dominant (superior) class that will control the means of production
leaving no space for the subordinate (inferior) class therefore subjecting the latter
to its whims. The result of this according to Marx is class antagonism e further
argued that a situation where the society was created equal and suddenly a small
group dominates the economic space is the bane of human coexistence. This is
the reason why Marx clamoured for change and this change will be marked by
revolutionary episodes. In this respect therefore Marxism may be seen as a form
of catastrophic theory.
Marx also argued that the result of the economic inequality and change in
balance of power relation will lead to lagging behind of the artificial economic
superstructure or ideological perception. It is the imbalance caused as a result
of new economic realities and the new ideological perspective that will prove
unsustainable which will cause societal disharmony leading to a new ideological
drive by the majority subordinate class. This new change in the superstructure
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artificially created will produce Marx ideal ideology. This will result to a change
in the pattern of power from the dominant minority (like monarchs and feudal
lords), to the poor majority (non-dominant class).
Karl Marx further gave detailed account of the English Bourgeoisies Revolution.
He claimed that the revolution occurred during the traumas of the 17th Century,
caused by the Constitutional Settlement of 1689 when William III and Mary II
were put on the throne, upon terms, in place of James II in the foundation of the
more or less modern idea of the crown in parliament.
This according to Marx will lead to the subordinate revolution (proletarian
revolution) causing a systemic change from economic forces to state control. This
is the final stage of revolution because there will be no more subordinate class in
the sphere of things any more. This change will lead to the destruction of positive
law and the artificially formed superstructure creating a new economic order
called the communist state order.

4.3.1 Marxist Position on Law


Karl Marx view about law is more revolutionary than evolutionary. He places
law at the foot-step of the economic base of the state. Law according to classical
Marxism is an off-shoot of the economic realities of that time. It should not be
surprising to see both evolutionary and revolutionary approaches to law. After all,
law has been based formally on topical issues like politics, moral values, ethical
and social factors. Take the instance of National Law theory which has for long
clung on to moral values or nature. Marx view is just an ideological change rather
than a systemic patterned change. Marxs form of revolutionary change may just be
a valuable reminder of what is sometimes a damaging weakness in a conventional
formal legal analysis.
Marx further saw positive law as an instrument of class domination by the
bourgeois to the proletariat. Law played a very important role in the entire process.
But not at every time did the law play that important role. The most significant
period where the law participated was during the ruling class domination of the
economic superstructure. At that time the Ruling Class (bourgeois) used the law
as an instrument in their favour to control public institutions. This economic
personalization lasted till the proletariats revolution according to Marx. This
made Frederick Engel say that law is sacred to the bourgeois, for it is enacted for
his benefit. The Marxist also felt that the rule of law proposed by Dicey was a
camouflage for class domination.
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4.3.2 Karl Marx Analysis of the State


Karl Marx believed that the state was created to provide an organized society
with the aim to guarantee and safeguard the general interest of the citizens against
enemies both within and outside of the country. In effect the state was created to
provide security for its citizens. But Marx stated that the state instead has been
hijacked by the bourgeois (Ruling class) to further its own purpose of economic
domination of the society.
According to Marx, this class use the state to milk the proletariat (poor) causing a
significant economic imbalance in the society. Marx further argued that the state
could neither arise nor maintain itself if a reconciliation of classes were possible.
He claimed that the state is an organ of class domination, an organ of obsession of
one class by another; its aim is the creation of order which legalizes and perpetuates
this oppression by moderating the collision between classes.
Marx finally argued that the progress of modern industry developed, widened
and intensified the class antagonism between capital and labour. The state power
assumed more and more the character of a public force organized for social
enslavement and as an engine of class despotism. In effect, Marx frowned at the
way factories and industries were created. Their aim was not to improve the lives
of its citizen but to dehumanize them into mere slaves.

4.3.3 Relevance of Marxism to the World Order


Six years after Karl Marxs death, Frederick Engel and others founded the Second
International party as a base for continued political activism. This Organisation
was far more successful in its endeavours than the First International Party had been.
It contained mass workers from parties in Germany (Social Democratic Party).
The Russian Revolution during the World War I led to the Bolsheviks, led by
Vladimir Lenin, who took over power. This revolution influenced many workers to
set up their own Bolsheviks i.e. Third International Party. Lenin claimed to be both
the philosophical and political heir to Karl Marx. This led to the development of his
political manifesto called Leninism or Bolshevism. This also led to the Communist
Party to be set up in many countries and such party led the revolution Karl Marx
preached about.

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The following countries had governments at some point in the twentieth century
who at least adhered to Marxism. They include:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.

Afghanistan
Angola
Bulgaria
China
Czechoslovakia
East Germany
Ethiopia
Hungary
Laos
Moldova
Mongolia
Mozambique

13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.

Nicaragua
North Korea
Poland
Romania
Russia
Somalia
USSR and its Republics
Yugoslavia
Vietnam
Albania
Cuba

Other sub-units of states have also participated. The Indian States of Karalla and
West Bengal also had Marxist government. The above underlined countries still
practice Marxism till date. However, these countries (except North Korea) have
moved slightly away from Marxism. They have seen the need to allow market forces
determine some part of their economy so as to be able to compete with Capitalist
countries like the United States and Western Europe. They have recognized the
need for International trade which is the bedrock for world wealth. A country that
has been very successful in this area is China. Chinas progress in their expanding
economy has been said to be caused by government allowing free enterprise to
strive. This does not mean that the Chinese have gone into capitalism entirely,
since its political formations and ideas are still based on Marxism. The recognizable
fact about China could be said to be that they have seen that Communism cannot
strive without economic liberalization. Though the state still owns the major
economic sectors of the economy like energy, plant, water, the ports and most of
banks shares, it has left other sectors like telecommunication, internal and external
trade and stock exchange in the hands of private Chinese business. However,
Chinese government regulates these sectors given out to guard against what Karl
Marx preached in relation to class domination and alienation.
Vietnam have also followed Chinas footstep in terms of its economic liberalization
efforts. But their economy has not made outstanding success like the Chinese. The
other Countries have however not followed China and Vietnams footsteps mostly
because of their internal economic, political and social problems.

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Though the influence of Karl Marx theory has declined significantly, signs of his
theory have been rearing its head. The Russian Federation during the Gorbachevs
Administration transferred public asset to private hands to run therefore moving
Russia away from Marxism. The President sold most of its oil wealth to prominent
Russian businessmen at quarter of its cost.
The Vladimir Putins Administration in the 20th Century has begun a process
of reclaiming public sector businesses particularly in the oil industry. Also the
Venezuelan president Hugo Chavez has followed Putins footsteps in grabbing oil
companies, oil blocs and plants and heavily taxing their revenues. He also acquired
the cement factories and steel industry owned by mostly foreign multinationals.
He has been quite successful at this by renegotiating oil contracts and making
sure that laws are enacted to make government have power to cancel previous
agreement thereby giving the government absolute authority in these sectors.
However, the signs will remain like that until the process is entirely completed into
classical Marxism. There is no doubt that Marxism is still relevant till date. In fact,
between 1980 and 1992 Karl Marx was the most cited authority all over the world,
followed by Vladimir Lenin.
Karl Marx was also ranked number 27 on Michael H. Harts list of most influential
figures in history and Number 3 on the German television show Unserie Bestan.
In July 2005, he was also the surprise winner of the greatest philosopher of all time
polls by listeners of the BBC Radio 3.
Finally though Marxism has declined in relevance in the 20th Century, its presence
can still be deeply felt in the world economic and political order.

4.3.4 Critical Assessment of Karl Marx


Karl Marx views about the society in which he lived shows the kind of person
he was. Marx showed that he was a revolutionary dissatisfied with the way things
were during his time when the Russian Dynasty was still in existence. Marxs views
were however not a disappointment to philosophers as his views are still relevant
to the current society which we live. But his views though well articulated showed
that he was thinking from a myopic point of view in many ways.
First of all Marx postulated that law is an element of the social superstructure,
positive law is seen as an instrument of social domination used by a ruling class
to maintain and advance its interest. Though this view can be said to be proper
in some instances where the ruling class has enacted laws to maintain its interest.
For example, the Nigerian Government formed the Bureau of Public Enterprise,
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formed by the Public Enterprise (Privatization and Commercialization) Act


whose primary responsibility is to sell government properties and business in an
equitable and fair manner. However what was done by the appointed directors
of the organization was to sell government properties to loyal party members
at give away prices. Also government businesses were sold to the major Peoples
Democratic Party (PDP) members creating an artificial bourgeoisie class. This
confirms Marxs theory of using law as an instrument of class domination. Marx
proposition and idea also conforms to the critics of the United Nations decision
to glorify some group of 5 called Permanent Members of the Security Council
who can veto any resolution passed by the council. The organization has legally
created ruling class of nations who dominate over the rest just because of military
and economic superiority. However, as bad as this law might be some people have
rejected this view of Marx. E. P. Thompson said:
People are not as stupid as some philosophers suppose them to be. They
will not be mystified by the first man who puts on a wig. It is inherent in the
special character of law, as a body of rules and procedures, that it shall apply
logical criteria with references to standards of University and equality. It is
true that certain categories of persons may be excluded from the logic (as
children or slaves), that other categories may be debarred from access to
parts of the logic (as women or for many forms of eighteenth-century law,
those without certain kinds of property). All this, and more, are true, but
if too much of these are true, then the consequences are plainly counterproductive. Most men have a strong sense of justice, at least with regard to
other interest. If the law is evidently partial and unjust, then it will mask
nothing, legitimize nothing, contribute nothing to any class hegemony. The
essential precondition for the effectiveness of law, in its function as ideology,
is that it shall display an independence from gross manipulation, and shall
seem to be just. It cannot seem to be so without upholding its own logic and
criteria of equity; indeed, on occasion, by actually been just.
Thompsons claims are quite expository. He was largely influenced by his period
in the 18th century when the British Monarch controlled the House of Lords and
House of Commons. They also had some level of control over the Judiciary and
local administration in the United Kingdom. He also accounted how the Royal
Family in the United Kingdom used its influence to control government to enact
laws in its interest. However he was quite sure that all these powers were put under
check by the same laws which Thompson said was unjust. In effect though laws
enacted at that time may seem to have been corrupted by oligarchic influence

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yet there is some inherent virtue in every law which serves the interest of the
larger society.
Marx also claimed that law is an element of the superstructure of society. He
further claimed that the content and changes in these elements are always
ultimately determined by changes in the base or infrastructure. This view is however
contradictory. First of all, English law was accepted by Common Wealth Nations
which latter spread to other nations as a result of its relevance. Also French law
was accepted by its former colonies. Also Russian law was accepted by its former
territories called the Balkan states. In fact, research has shown that laws all over
the world have permeated into territories it did not originate from. The fact is that
Marxs view cannot explain the permeation of English law to these countries even
as far as India or the Middle East. Marxs view cannot be said to be right because a
legal rule in the United Kingdom can be a legal rule in India. So Marx proposition
is not entirely right and not entirely wrong.
Marxs law can also be criticized in various ways. The fact is that not all laws are
made to protect the poor. A typical example is the law on Social Securities in the
United States which gives people with little or no means of livelihood money and
other human necessities to help them survive until they have a means to satisfy
their needs. This law cannot be said to fit into Marx proposition that law is aimed
at legitimizing economic domination. In Nigeria, some institutions have been
set up by the government to help improve the plight of the poor. They include
the National Poverty Eradication Programme (NAPEP) the establishment of
Micro Finance Banks, the subsidizing of petroleum products by the Petroleum
Pricing and Marketing Company (PPMC). These institutions have been set up by
government for poor people to give them the opportunity to improve themselves
from poverty to a normal livelihood.
Karl Marx also expressed his view on social class domination. He classified society
into two sharply opposed groups namely the bourgeoisie and the proletariat.
According to him the bourgeoisies are the rich who own the means of production.
They also have certain amount of influence on government policies that benefit
their interest. The proletariats on the other hand are the poor who work all day
without getting commensurate return for their labour. Marx stated that there is
a continuous clash between these two and the bourgeoisies use their wealth and
influence in government to oppress the proletariats.
First of all, the view that there are only two classes in the economic strata cannot
be supported. In current societies particularly in the United States and Western
Europe a new group has risen and this is the middle class. This class is said to be the
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biggest mover of the economy. They are neither poor nor rich but have a standard
of living that is acceptable for human existence. In fact China and India have the
largest growing middle class in the world. South Africa has the largest middle class
in Africa. This middle class is however strange to Nigeria because Nigeria seem to
follow the Marxist analysis of social class because of the ever rising political and
economic corruption in the society.
The fact that can be drawn from Marxs proposition is that social class difference
proposed by him will no longer hold water in our current economic realities. It is
apposite to hear the view of Cottrell who said:
The distinction between those who own the means f production and those
who labour through means of production owned by others seem inadequate
to provide a basis for theorizing the relationship in contemporary Western
societies between numerous social groups categorized in terms of an
immense array of different occupations and social positions.
Karl Marx also made similar far reaching statement about the state. He claimed
that the state is an instrument of class domination and an organ of oppression
of one class by another. It is evident that Marxs hatred for the state during his
period made him take this view. During his time, the Russian dynasty used the
instrument of the State to oppress the poor and promote their interest both
economically and politically. This made Marx to strongly hold this view. However,
although sometimes Marx proposition could be said to be true, the development
of social and economic accountability of most nations in the Western Hemisphere
has nullified Marxs claim. The United States of America is a very good example
of a state where the people have demanded economic and political accountability
which has presented the form of government called democracy (a term usually
standing for government of the people by the people and for the people).
Democracy signifies a government that owes its absolute loyalty to the people no
matter the tribe or religion. It is a form of government that governs according to
the wishes and inclinations of the people. Nigeria is said to be practicing this same
system which owes absolute loyalty to the wishes of the people. In fact, the 1999
Constitution provides that the Federal Republic of Nigeria shall be a state based
on the principles of democracy and social justice.250 Although this is provided for
in the Constitution, what concerns Marx is whether it is being practiced.
In Nigeria today, where political actors strive to enter government office at all cost
and when this is achieved they loot the treasury of the country without delivering
250 S. 14 CFRN 1999.

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the elusive dividend of democracy. The fact remains that though Marxs view were
not contemplated by the statute books, in real practice political office holders have
used the instrument of state to benefit themselves rather than the people. This
anomaly is however not present in countries with developed democracies like the
United States and Western Europe.
The fact still remains that Marx proposition about the state may not hold water.
The people have found better ways of dealing with such economic and political
injustice committed by political office holders which Marx complained about. The
fact is that though Marx views are still relevant to our period its significance is
slowly fading away.

4.4 Realism
Realism is a term proposed by the American judge Oliver Wendell Holmes during
the 19th and 20th centuries when laissez faire was the dominant behavioural pattern
in the United States of America. The term Realism can be said to have a continuous
link with the term formalism in philosophical and social sciences. This was marked
by a reverence for the role of logic and mathematics and a priori reasoning as
applied to philosophy, economics and jurisprudence, with the urge to link this
empirically to the facts of life. The Realist movement were linked with important
personalities like Veblen in economy, Beard and Robinson in historical studies,
Oliver Wendell Holmes in Jurisprudence and William James in philosophy. This
marked the clear movement formed against formalism which was also influenced
by the rising intellectualism in the United States at that period. This Movement
was also very hostile to the positivist particularly Bentham and Austin.
The primary purpose of these writers at the time, was to enlarge knowledge
empirically which are related to solve the practical problems of man in our present
society. These problems were however not limited to them as they relate to many
non tangible issues that facilitate or influence the reasoning of man and his practical
relationship with nature. The historians believed in the analysis of historical factors
linked to society in studying the classical nature of man and his law. This collective
idealistic drive was an off shoot of the influence this group made in the American
society which moved from a highly individualistic Society to a form of collective
society in the first half of the 20th century.

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4.4.1 The Realist Theory


The realist theory primarily aims at playing down the role of established legal
principles or legislation so as to discover the other factors that contribute towards
a judicial decision in a court of law. These factors are usually legal but the realist
has made more contributions by suggesting that other non-legal factors may
contribute or influence a judge to make a judicial decision. The primary purpose
of this school of thought is to be able to predict future decision of a court of law
essentially based on previous decisions.
The realist did not agree to the fact that judge made their decisions based on
law but on fact. They could be referred to as radicals not revolutionaries. They
criticized the judicial system for shielding judges from the scrutiny of the public.
They differentiated between the court-centered and the rule centre. They believed
that whatever was the prevailing state of mind of the judge at the time of making
his decision in court will be the ultimate determining factor of that case. They were
referred to as Rule skeptics and court central since according to them they doubted
the value of simply relying on the paper rules but also doubt the adequacy of the
courts as fact finding institution.
The realist idea could be said to have the capacity to put into disrepute the judicial
system since they disbelieved that a judge can make his decision on law but on
other social political and economic factors.
Holmes also believed that law was not what was enacted by the legislative arm
but what was said by a court of law. Holmes view perfectly put more emphasis
on what the judge says and not what is written down in white paper. They simply
put the judges in the position of law makers. This view could be said to be myopic
considering the position that Holmes occupied. But his views can never be said
to be irrelevant considering the fact that the judges are put in the position of
adjudicators in a case and have the right to decide in which position they prefer.
These powers can make the judge a law marker in Holmes view and no one can
argue this with him. But the question that can be asked is whether Holmes is
entirely right taking into cognizance that not all laws are brought before a judge
to decide.

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4.4.2 Arguments of Realist Authors4.4.3 Oliver Wendell Holmes


Holmes played the most significant position in the realist philosophical theory. He
was a judge who filled the position of Justice of the Supreme Court in the United
States of America for a long period which influenced his view that law was not
limited to what was written down in white paper but is the predictions of what
courts will decide. He believes as he wrote to William James in 1868, that law as
well as any other series of fact in this world may be approached in the interest of science.
Similarly he also believed that law should be considered as it is and not as it ought
to be. In effect he means that law and morals do not mix at all. This according
to Tushnet was not his earlier view. According to him, he argued that Holmes
previously believed in the organic connection between legal development and
social sentiment, in effect that law was a reflection of public opinion. Holmes
further believed that a body of rules could not find solution to legal cases brought
before a court of law. He said that general propositions do not determine concrete
cases. He further claimed that a case can be settled by general prepositions, that he
will admit any general proposition he likes and decide the case either way.
He further stated that:
The life of the law has not been logic, it has been experience. The felt
necessities of time, the prevalent moral and political theories, institutions
of public policy, avowed or unconscious, even the prejudices which judges
share with their fellow men, have had a good deal more to do than the
syllogism in determining the rules by which men should be governed.
Holmes also stated that the judges can be put in the positions of law makers in
every case brought before them. This view to some extent distanced him from
authors like Dworkin and Harts who believed that judicial law-making was an
anomaly. Holmes mentioned three things that would influence a judges decision
in a case. These 3 could be morality, politics and prejudices. He later advocated
that the judiciary should become more open in their use of policy so that there was
no longer the need to peer behind the precedents and false mechanical reasoning
to see what was really going on.
The solution to this situation according to Holmes was the approach taken by the
bad man. Holmes said:

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Take the fundamental question, what constitute the law? you will find
some text writers telling you that it is something different from what is
decided by the courts of Massachusetts or England, that it is a system of
reason, that it is a deduction from principle of ethics or admitted axioms or
what not which may or may not coincide with the decisions. But if we take
the view of our friend the bad man we shall find that he does not care two
straws for the axioms or deductions, but that he does want to know what
the Massachusetts or English courts are likely to do in fact I am much of his
mind. The prophesies of what the court will do in fact and nothing more
pretentious are what I mean by the law.
This according to Holmes, introduced a putative and predictive approach to
the law. To him law was simply what will happen to a person if he commits a
particular crime.

4.4.4 Karl Llewellyn


Llewellyn was one of the major proponents of the realist movement in his time.
His views followed that of Holmes but he had more to offer than Holmes. He not
only criticized the judicial arm of government but made constructive criticisms as
well. This means that he went much more than Holmes.
Llewellyn primarily believed that when the judge is making his decision in a court
of law he should take into cognizance other seeming important factors he felt was
necessary to match law with social changes that may occur in a society. Therefore
law should strive to the achievement of social ends of the society. Law should
therefore go through a process of development not to stay static while times and
seasons keep changing. He later called for the law to be evaluated primarily on the
social effect it has on society and nothing else.
He expressed his profound dislike and disgust for the written legislation prescribed
by the positivist. He feels that law should be measured on judicial decisions which
are made on the basis of sound judicious reasoning. According to him, legal rules
found in books and judicial decisions, do not accord with reality. Llewellyn also
proposed that when reading cases founded on though familiar but different fact
such decisions should be based on different rules not one uniformistic process.
He gave different instances where a law has been used in different situation which
has produced absurd results. He said that to apply the principle of frustration in
Contract Law to Shipping cases involving blockage of the Suez canal in 1956, to
Employment Contract in the 1990s, serve no useful purpose except to please those
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formalists who insist on a false uniformity in order to satisfy their desire to see law
as system isolated from the events it is proposing to control.
In 1931 Llewellyn outlined some major themes of realism which include:
1.

The disposition of the trouble case: a wrong; a grievance, a dispute.


This is garage repair work or the going concern of society, with (as
case-law shows) its continuous effect upon the remaking of the order of
that society.

2.

The preventive channeling of conduct and expectation so as to avoid


trouble, and together with it, the effective reorientation of conduct and
expectation in similar faction. This does not mean merely, for instance,
new legislation, it is, instead, what new legislation (among other things)
is about, and is for.

3.

The allocation of authority and the arrangement of procedures which


mark action as being authoritative, which include all of any Constitution,
and much more.

4.

The positive side of laws work, seen as such, and seen not in details, but
as a net whole. The net organization of the society as a whole so as to
provide integration, direction and incentive.

5.

Juristic method, to use a single slogan to sum up the task of some


handling, and of some building up effective traditions of handling, the
legal material and tools and people developed for the other jobs to the
end that those materials and tools and people are kept doing their lawjobs, and doing them better, until they become a source of revelation of
new possibility and achievement.

4.4.5 Jerome Frank


Jerome Frank followed the line of Oliver Wendell Holmes. He believed that there
were two categories of realist. He called the first the Rule Skeptics which according
to him lawyers in a case brought before them should be able to predict the final
decision of the court even when the case has not started. They also believed that
written enactments found in legislative books could not predict the final decision
of any case in court. Jerome Frank was however not satisfied with this rule skeptic
proposed by Llewellyn. The simple reason is that the rule skeptic concentrates on
final courts not on lower courts decisions.

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Jerome Frank also mentioned the second group of realist; according to him they
are called Fact Skeptic. Fact skeptic believe that no matter how precise or definite
law may be, (the formal legal rules), no matter what the discoverable uniformities
behind these formal rules, nevertheless it is impossible, and will always be
impossible, because of the elusiveness of the facts on which decisions turn, to
predict further decision in most (not all) lawsuits, not yet begun or not yet tried.

4.4.6 Critical Assessment of the Realist Theory


The belief of the realist school that law was nothing but the prophecies of what
the court will do and nothing more pretentious in a given case calls for closer
examination. Under normal circumstances the reasoning behind these views
could be well understandable considering the fact that Oliver Wendell Holmes
and other proponents had very high judicial foundations. But to say that law is
nothing but whatever the judges command is an issue which could be said to
be unacceptable and highly debatable. Although there is no doubt that judges
decisions are influenced by non legal issues but they rely on the law as it is stated
in the statute books to commence the adjudication of a case.
Firstly, it is good to know that many prominent authors have made sympathetic
assessment of the realist view just as many authors have made contrary views
on the matter. Proponents of the Realist views may have some compelling and
convincing argument as they also rely on the views of the positivist that laws must
be (formal) written down and supports the Realist to the effect that formal or
written law in itself does not command the force of law without being tested in the
court to ascertain its validity.
Singer and Harwits were more sympathetic than anti-sympathetic. Singers views
were quite enlightening he believed that the realist views were able to divert
attention from the other theories of law and therefore undermining the idea of
self regulating market principle. They finally believed that the other schools of
jurisprudence are off shoots of realism. Harwits also made his view known. In fact
he was not only sympathetic to the Realist school but he was full of praises for
them. He claimed that the most significant legacy for the realist was its challenge to
the orthodox claims that legal thought was separate and autonomous from moral
and political discourse. He further argued that the realist contributions was the
best that could happen to legal reasoning and that this attack was not justifiable.
He also stated that legal realism was a technical assault by the early 20th century
on fundamentalism. On the other side Gilmore stated that:

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the revolution may have been merely a palace revolution, not much more
than a changing of guard.
Laura Kalman also believed that the realist idea failed. He felt that the realist
particularly of the 1920s and 1940s did little to integrate law with social science or
organized case books along factual lines. Realist concludes Kalman, pointed to
the role of idiosyncrasy in law while retaining a belief in the rule of law accordingly,
they attempted to make it more efficient and more certain. And so, she argues,
they failed to confront their own most arresting message that all law is politics.
Realism has not answered many questions that can be asked. One of such questions
is whether they are claiming that every judge that decides a case brought before
him have the absolute right to decide what is legal on a particular matter without
referring to legislation written in paper form.
The fact is that no judge knows all the law and a basic source from which such laws
can be legitimately derived is by documentation by properly appointed individual.
If it is true that a judge needs such document called Acts or laws then what is
that document called and what is he doing by reading such written legislations
could be said to be laws and Acts which have been properly enacted by constituted
authority and that act of reading the law before making judgment is the act of
interpretation which should be the primary responsibility of the court.
Another important question necessary for critical examination of the realist
proposition is the question whether a judge is a law maker or not. One of the
fundamental pillars upon which the Constitution of the Federal Republic
of Nigeria 1999 is based is on the principle of Separation of Powers. The
philosophers Montesqui, Paine and Burke, the aspirations of the American and
French revolutionists, and the spirit and, to some extent, letters of the American
Constitution as they relate to the principle of separation of powers in Article I
to III thereof are all enshrined in our Constitutional document. These powers
are separated into 3 and they are: the Legislature, Executive and Judicial arm of
Government. The effect of this is that Judges are not law makers. The Constitution
of Nigeria has stated that the primary purpose of the judicial arm of government is
to interpret the law. Only the legislative arm of government can make laws.
There is doubt that judiciary sometimes has taken the post of the legislature in the
act of law making but this can be seen as necessary over- lapping of performance
which is inevitable. In some instance this has however arisen in where the courts
have found lacunas created by laws which have not envisaged a particular set
of circumstances. What is most important in these circumstances is that such
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declarations must be done in such a way that fairness and justice must be seen
to have been done. In the Nigerian case of Abubakar vs. Chuks251 the court
held that:
I will say that an issue falls within a judges discretion if, being governed by
no rule of law, its resolution depends on the individual judges assessment of
what is fair and just to do in the particular case. A judge has no discretion
in making his findings of fact; he has no discretion in his rulings of the
law. If a judge, having made necessary findings of facts and any necessary
ruling on law, it seems to me clear that he has to choose between different
causes of action, orders, penalties or remedies he then exercise a discretion.
Let me reiterate that it is only when a trial judge reaches a stage at which
he asks himself, what is the fair and just thing to do or order in the instant
case that he embarks on the exercise of a discretion. However, where the
situation is governed by the Rule of Law, as in the instant case, which
touches on admissibility of a document where the provision of the Evidence
Act come into play, although the court may have its own discretion, such
discretion must be exercised according to the ordinary principle laid down
in the Evidence Act as set out above.
One other important issue brought up by the realist is the claim that other
non legal factors affect the final decision of a judge in any case brought before
him. Such factors could be either moral, political or social creating a seeming
dislocation between what was actually declared by the judge and what the statute
books provide. The reply to this over-generalization cannot be overemphasized.
In the first place there is great exaggeration in this position. To say that the
judges do not interpret laws but give their version of what a law is to create a
huge dislocation between written laws and judicial interpretation. This hasty
generalization is capable of making us lose sight of the primary function of rules:
to serve as normative standards, which inform us not primarily of what happens or
is likely to happen, but of what ought to happen.
Another important effect of the realist claim is that such claims are capable
of creating disaffection between the legislative arm and the judicial arm of
government. In A.G. Abia State & Ors. Vs. A.G. Federation252 one major issue
in the case was who owned the revenue derived from offshore oil exploration
activities. The question was whether it was the Federal Government or the State.
The states claimed it was their right to have it while the Federal Government
251 Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) pg.422, para D F.
252 (2003) FWLR (Pt.152) 131

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claimed that since these resources were not taken from state land it was owned
by the Federal Government. The Supreme Court decided in favour of the Federal
government. This however did not go well with the National Assembly. This
led to the passage of the Allocation of Revenue (Abolition of Dichotomy in the
Application of Principle of Derivation) Act 2004 253 which provides:
As from the commencement of this Act, the two Hundred meter water
depth Isobaths contiguous to a State of the federation shall be deemed to
be a part of that state for the purpose of computing the revenue accruing
to the Federation Account from the state pursuant to the provisions
of the Constitution of the Federal Republic of Nigeria, 1999 or any
other Enactment.
The effect of this law is that it comes in a form of legislative judgment nullifying the
decision of the Supreme Court in the A.G. Abia & Ors case. The realist movement
can create a situation where by the arms of government would see themselves in
bad light creating an antagonistic environment detrimental to the people. This
example is a typical instance.
One other significant consequence of the Realist claim that law is whatever that
proceeds from the mouth of the judge and the other non legal factors that affect
such judgments is that such an allegation is capable of discrediting the judicial
arm of government. If judges make judgment on cases brought before them on
non-legal factors such is bringing the judicial arm into disrepute. It is only the
subject-matter brought before the judge to the whims and caprices of the judge in
his personal capacity not in his judicial capacity. This means that anybody can be a
judge in court. The realist proposition cannot be accepted on this ground. On the
other hand it is good to look at the rationale given by the realist to really understand
their reasons for their views. It seem to be that even with all the criticism leveled
against the realist there seem to be some light at the end of the tunnel.
The rationale given by the realist school of thought on the justification for their
views is quite interesting. They argued that written legal legislations are mere
writings in English language which can be subjected to various interpretations.
The result is a plethora of vague and abstract written semantics which have no
basis in law. They believe that before a law can be enacted, there must have been
seen some morally reprehensible behaviour exhibited by a section of the society.
Therefore a law will be enacted by the body given that responsibility to tackle
such reprehensible conducts. In other words, that law must detonate the morally
253 Laws of the Federation of Nigeria June 2006, Index Vol. I

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reprehensible character. The process of detonation must put the law to test and
the process of putting the law to test must be in the court room. Therefore every
enacted law must be put to test by the judges and only what the judges decide
will be the law. One cannot know the extent of a written legislation until it is
interpreted by the judges who form part of the judicial arm of government.
Take the Rotimi Amaechi vs. INEC254100 Nigerian case for example. The court
decided that Mr. Omehia one of the respondents was an impostor standing in
the position of Mr. Rotimi Amaechi who was the real Peoples Democratic Partys
(PDP) candidate for Rivers State gubernatorial election in the April 14 2007 polls
and that the party (PDP) is more like a vehicle which must drive the candidate.
The vehicle is more important than the persons; since Amaechi was the elected
candidate of the PDP in the primaries that won the general election, Amaechi
therefore is the duly elected governor of Rivers State.
The decision of the court could be said to be inferences drawn by the Supreme
Court of Nigeria from the Amaechis case. There is no law in Nigeria which can be
used to categorize Omehia as an impostor or that the Party was a vehicle which
was more important than the personality. The case has also brought legal minds
into confusion taking into cognizance what transpired in Imo and Bauchi states.
In Imo and Bauchi states, both Governors decamped to the PDP from the Peoples
Progressive Alliance (PPA) and All Nigerian Peoples Party (ANPP) respectively.
On the authority of the Amaechis case it means that the Governors in Imo
and Bauchi states will have to vacate their offices without any remedy since the
party was referred to as a vehicle. This means that for us to really understand and
appreciate the law it must be made by the judge in a court of law. No one would
really understand legislation until it is interpreted by the judge only then will it
become law.
Whatever view that will be embarked by readers of the realist philosophy will
depend on their choice. It is not on our part to compel readers to accept a particular
line of thought. Our humble view is that Judges in fact are engaged in the art of law
making during adjudication. Similarly in our candid view it can be successfully
argued that every law not interpreted by law is dead or passive until it is put to life
by the court of law in Nigeria and beyond.

254 (2007) 18 NWLR [Pt. 1065] pg. 170.

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4.5 Historical School of Jurisprudence


This school of jurisprudence was founded by Fredrick Karl Von Savigny in his
native country Germany. This school believed that law was not a simple legislation
given by a commander like the positivists proposed, rather, proponents of this
school they believed that law had a significant linkage with the history of the people
that it governs. The Historical School emphasized significantly the connection
between a law and the other aspects of the culture of a people and insisted on the
need to investigate the antecedents on the parts of the present law in order to be
able to understand it fully.

4.5.1 Fredrick Karl Von Savigny (1779 186)


Karl von Savigny never accepted the Positivist and the Naturalist propositions
since in his candid view law has a distinctive link with the people it governs. Law
is not a written legislation enacted by legislative arm of government but was found
in the peoples national spirit. This is what he called the spirit of the people and
in German called the Volksgeist. He resisted French Code and the drive towards
codification of laws in his homeland Germany. His resistance was however subtle
rather than hard. He believed that attempt to codification of law was premature and
would be an obstacle to the natural development of law through the Volksgeist. But
codification would be a proper course of action when experts (jurists, historians,
linguists and perhaps, judges) discovered, and were able to announce, that law
resided in the collective consciousness, only then will codification be allowed.
This led to the continuous acceptance and practice of German law in his country
that lasted until 1900. However, later the Roman law was accepted subject to some
German conditions with the injection of core local values and norms. At that same
period of the reception of Roman law in Europe, Savigny devoted a part of his life
towards the study of Roman law. The hypothesis according to him is that every
legislation whether in Germany or in the United Kingdom has its roots to customs
in a particular area. It is after then that the law will obtain a juristic character and
generally acceptable legal validity.
Savigny also sees a nation and its state as an organism which is born, it matures,
declines and dies. Law grows with the growth and strength with the strength of the
people and dies away as the nation loses its nationality. Savigny argued that at the
stage of development of a nation and its law, it goes through 3 different stages. The
first stage is the political development of that legislation of the state which creates
a form of national consciousness called Volkglauben. This political national

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consciousness form a better part of the countrys populations development in the


field of formal symbolic transaction.
After this stage there comes the middle stage which still has the political element
but acquires a major technical element of juristic skill. This is the pinnacle of legal
juristic development and a period of juristic formation. This concludes with the
codification of this legal system with the decline of a nation. Law no longer have
popular support and becomes the property of a clique of experts. Eventually with
time, this skill decays and thereafter there is a loss of national identity.
Legislation
Savigny believed that legislation is written law and its content can be derived from
the law giving power. Such law giving power stands at the centre of the nation
creating a congenital link with the peoples spirit, needs and feelings. He said:
if we enquire first as to the content of written law, they are already
determined by the mode of derivation of the law-giving power; the already
present peoples law supplies those contents or what is the same thing,
written law is the organ of the people law. if one were to doubt that, one
must conceive the law giver as standing apart from the nation, he however
rather stands in its centre, so that he concentrates in himself their spirit,
feeling, needs, so that we have to regard him as the true representative of
the spirit of the people.
Savigny also stated that it was erroneous to determine the nature of the legislature
on the form of Constitution or government in practice. Such do not matter
according to him and whether the legislature stands in the form of a Prince, a
group of people having a legislative purpose or a judge or even a group of people
elected by the generality of the population the situation is still the same.
The influence of legislation upon the progress of law is more important than upon
its original formation. Therefore if there is a sudden change in the views, needs,
and mannerism in a particular society where the law is formed Savigny believes
that the same spirit that led to the formation of that law will lead to the amendment
of that law. Lastly he posited that:
into the history of every people, enter stage of development and
conditions which are no longer propitious to the creation of law by the
general consciousness of the people. In this case this activity, in all cases
indispensable, will in great measure or itself devolve upon legislation.
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THE PEOPLE

Savigny believes that the people are the foundation of legal formalism. Every law
must have a form of origin linked to the people. The law must originate from the
people which it governs. He said:
When we regard the people as a natural unity and merely as the subject
of positive law, we ought not to think only of the individuals comprised
in that people at any particular time, that unity rather runs through
generations constantly replacing one another, and thus it unites the
present with the past and the future. This constant preservation of law is
effected by tradition and this is conditioned by, and based upon the not
sudden but ever gradual change of generations. The independence of the
life of individuals, here asserted by law, appertains first to the unchanged
continuation of the rule of law. It is secondly too that the foundation of the
gradual formation of law and in this connection we must ascribe to it a
special importance.
Juristic Law
In life it is naturally accepted that as development comes in, it accompanies advanced
civilization in policies and a nations culture will develop, special activities and
other life attainments and modernization will separate the past from the present
thus producing different occupation for different classes of people. Similarly, as
the law develops over centuries, it begins be more too much complicated for the
ordinary citizen to understand. When laws are written in books it becomes almost
impossible for everybody to understand every written law of the land, this would
lead to the emergence of special people who have special knowledge in this written
law. These special people will have to stand in on these peoples behalf holding brief
for them. In this order the law will stand with the particular consciousness of the
people, emerging and continuously unfolding as the peoples law. It leads hence
forth a double life; in outline it continues to live in the common consciousness of
the people, the more minute cultivation and handling of it, is the special calling of
the order of jurist.

4.5.2 Critical Assessment of Savignys theory


Savignys historical analysis of law had its highest position when it was first
proposed by him. His analysis of law started in his home country (Germany) where
he made historical investigation about Roman law. He proposed that Roman law
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cannot be of practical relevance to the German society and instead a breed of laws
originating from the peoples customs and values should emerge. At this time his
views were thought to be flawless and its acceptance was of historical gratitude but
this acceptance though quite influential was short-lived.
Even J. M. Elegido an erudite jurisprudence author commended Savignys
position, when he said:
There is no doubt that all the element of a culture (including the law) are
interrelated in different ways and that the historical experiences of a people
influence its beliefs, attitudes and values and that these in turn influence
the law. Who would think of denying any of this, when enunciated at this
level of generality?
Savignys views when critically analyzed will bring various objections to mind. To
start with, Savigny opined that every legislation must have its root in the spirit of
the people. Now he never defined a people or spells out the criteria for identifying
them. Are the people he was referring to, members of a cultural group, race, ethnic
group, state, nation or continent? It is well known that within this group there
are many different attitudes, norms and behaviours. Secondly, Savigny also never
clarified what he meant by the volkgeist i.e. what the spirit of the people meant.
This idea or the use of the term, the spirit of the people is simply too vague for
examination and analytical study, all that can be done is mere speculation or
conjecture as to the proper meaning of the term. Thirdly, Savigny claimed that
the people he talks so extensively about, have one spirit. These propositions can
never be true when looked at extensively and considering the diverse nature of
the society. Everybody cannot have one custom even people of the same country
or states do not have the same custom. Take Rivers State in Nigeria for instance,
the state has a population of about 6 million yet that is only a fraction of the
entity called Nigeria. It has multiplicity of ethnic groups and custom. Rivers State
has more than 10 ethnic groups, for example, we have the Kalabaris, Ikwerres,
Andonis, Ogonis, Ogbas, Okrikas, Opobos, Eches, Ekpeyes etc. Even these groups
have different diverse customs ranging from area to area. That is why Roches said:
Any large, complete society, with its multiplicity of social background
and individual experiences, contains varying mores and attitudes within
itself. On any given piece of legislation there will not just be supporter
and enemies, rather there will be many points or view, ranging from
unconditional support, through indifference, to unmitigated opposition.

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Even to basic issues like ban on prostitution which should be seen as morally
right in all culture and ethnic groups, some countries in Western Europe legalized
such immoral conduct. Savignys proposition has been further dealt a big blow
by countries accepting foreign law that do not originate from their country. For
example, Nigeria accepted Common Law, Cameroon that of French Code, Liberia
that of American law, Turkey that of Switzerland and Japan that of Germany.
Another issue which must be analyzed is the normative character of Savignys
analysis; Savigny believes that all law must have customary foundation. This means
that all laws of a state must form its origin form customary law of the people. He
called it the Volkgeist of the people and he stated that this volkgeist cannot be
questioned at all. This proposition when looked at carefully cannot stand the test
of time. Take a look at some customs which was said to be repugnant by Nigerian
law. For instance, Laws of High Court Laws of Nigeria255 provides that:
The court shall observe and enforce the observance of every local custom
and shall not deprive any person of the benefit thereof except when any
such custom is repugnant to natural justice, equity and good conscience
or incompatible, either directly or by its implication, with any law for the
time being in force.
This section simply confirms to us that some customs are bad and the law orders
that such customs must be inapplicable. One significant clause in the section is
repugnancy but the court was able to make it clear that the clause was intended
to invalidate barbarous customs.256 Also it has been said that a barbarous custom
must be rejected on the ground of repugnancy of natural justice, equity and good
conscience.257 Take the case where the appellant has paid dowry in respect of
a woman when she was a child. Later the respondent paid dowry in respect of
the same woman to the womans parents and took her as his wife. The appellant
claimed custody of the children of the union on the grounds that under customary
law he was the husband of the woman, that the woman could not contract another
legal marriage until the dowry paid by him was refunded to him and that he was
entitled to any children born by the woman until the dowry was refunded. The
court held that the alleged rule of customary law had not been established. It then
stated that even if such rule had been established, it was of the opinion that the
custom was repugnant to natural justice, equity and good conscience.258 This
255 Section 18(1) High Court Laws (Laws of Rivers State of Nigeria Vol. 3 Cap 62, 1999.)
256 Per Lord Wright in Laoye v. Oyetunde (1934) A. C. 170.
257 Per Lord Atkin in Eshugbayi Eleko v. Officer Administering the Government of Nigeria (1931)
A.C. 662 at pg. 673.
258 Edet v Essien (1932) 11 N.L.R. 47 cited in Obilade the Nigerian Legal System.

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case simply nullifies Savignys view that the volkgiest of the people should not be
questionable. Though most customary laws are usually acceptable and beneficial
to the people, some might not follow that way. Savigny might be said to have over
generalized in this situation.
Savignys claim that every legislation must have some historical setting can also be
disputed. In the first place most laws in Nigeria have no historical foundation to
our country. For example, Law of Evidence, Law of Tort and Law of Defamation.
These legal topics have no customary foundation in Nigeria yet they are still
well acceptable among the people of our society and just like in other West
African countries.
The conclusion to this analysis will summarize our view on the historical school
as proposed by Savigny. Savigny is right to say that laws should have a historical
background. This would make the law have a general acceptance among the local
people. It will also make the law easily applicable and enforceable among them.
But to say that all such laws applicable in that legal system must be custom linked is
where we have problems with Savignys general acceptability. The general situation
is that sometimes countries have laws not rooted to their historical customs and
even at that it is still generally accepted. We gave examples like the Law of Tort,
Evidence and Matrimonial Act in Nigeria.

4.6 Sociological School Of Jurisprudence


Introduction
The idea of Sociological School of Jurisprudence was prominent in the 19th and
20th Centuries. Its influence can be comparable to that of the Naturalist at the
time legal thought has tended to reflect the trends to be found in sociology. Jean
Roscoe Pound was the chief proponent of this school of thought. However, other
philosophers and authors made their contributions particularly philosophers like
Max Webber, Eugene Ehrlich, Herbert Spencer and Comte.
A preliminary observation can be made that one major characteristics of the
Sociological School is the existence of various conflicting theories making it
almost impossible to identify a central proposition of sociological jurisprudence.
However, this does not mean that some central ideas cannot be identified in the
thought. For instance, the issue of law as an instrument of social engineering is one
instance where a consensus model for society has been reached. Socialism also
responded and enlarged this maxim to accommodate changes, civilization and
modern growth. It also made logical references to relativism, they also disregarded
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the view that an ultimate theory of value can be identified, they also believe that
whatever happens was socially constructed and nature had nothing to do with the
finality of that situation and finally they are greatly concerned on how social justice
can be achieved and by what method such process will be achieved.

4.6.1 Roscoe Pound (1870 1964)


Roscoe Pounds sociological jurisprudence took its origin in the United States of
America during the 20th Century. The expensive character of American Society; its
material wealth, and its devotion to scientific technology, all encouraged the belief
that the basic problem was one of adequate control and distribution of wealth and
that the solution could best be attained by the application of the developing social
sciences. The effect of this origin gives credence to the fact that every law must
have a social character and must be developed in relation to existing social need
and values of society.
Social Engineering and Values
For Pound, social engineering connotes a description of a neutral process rather
than prescriptive of pragmatic reforms. This also means that the law was made to
secure societal ends and nothing else. The combination of the two words social
and engineering is another issue of discourse. Primarily he is concerned with the
effect law has on society and how this law will promote societal integration and
togetherness. Another important issue proposed by him was that a government
should have a data base or index which will gather information and statistics as
is done in most developed countries of the world creating a programme for that
particular society which will be controlled by the legislative and judicial arm of
government. These techniques will help make laws which will not only respond
to social needs but will make society develop in more harmonious circumstances.
This is the best approach to law as an instrument of social engineering.
Pound also made reforms to the values inherent in a community where
independent or soft laws are formed. The fact is that every society has its form
of social assumptions and these assumptions are usually implicit rather than
explicit. He also postulate that each of these values change as society moves on
with new needs, growth and tensions. The success of any society will be measured
on how the people have accepted these values as an instrument which will guide
their relationship.

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Ordinarily some critics would argue that this form of value proposed by Pound is a
reflection of the naturalist thought but there is a distinction between maintaining
the objective validity of ethical rules and simply ascertaining the operative values
that exist de facto in a given society. Pound further made other revelation about
how these laws must be accepted by the entire populace in a society. These laws
according to him are almighty and cannot be disposed by any section of the society.
These laws must be perfect or else it will not conform as an instrument of social
engineering, it seems that Pound may be referring to a homogeneous society where
every person share the same view, values, traditions and custom. One would then
ask if the American society which Pound originated from possessed such quality.
The fact is that no country in the world shares such qualities and even within
identical tribes people still share different views and values on certain basic issues.
A reading of Platt On the origin of Juvenile Justice, Gus Field on The Temperance
Movement and Prohibition, Duster on Drugs Legislation or Nelken on The Rent Act
will dispel any doubt that laws are the result of a value consensus.
It would be appropriate to conclude that a law enacted in a society must protect the
entire society and no group or person must be a victim of any law in that country.
Every law must protect every group in a society no matter how small such group
may be. And if such laws deprive a small group, the small group must have a form
of remedy. This is the kind of law that Pound is dwelling on.

4.6.2 Critical Analysis of Pounds theory


Roscoe Pound believes that every law brings its origin from the local values of
the generality of the population and such laws must perform the act of social
engineering. However, Pound never told us how these processes will be carried out;
all he said was that law must perform a responsibility which is social enablement.
He also postulated that laws are made from common values of the people. The
fact is that people in a country have no common values as a result of multiplicity
in ethnic composition creating a situation where laws are made sometimes and
these laws create dissatisfaction and disunity in a society. It is on record that the
then Apartheid government in South Africa enacted laws which promoted social
unrest, dissatisfaction and disunity. Can it be said that Pound never took this
possibility into cognizance? Even in the United States where People from different
tribes, nationality and values have come together creating a composition not easy
to understand, when laws are made under these compositions it is impossible for

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everybody to be satisfied with these laws. One will wonder where Pound got his
idea from.
The fact is that Pounds position on social engineering is sometimes unrealizable.
Not all laws (will) promote social engineering but in some circumstances, they do.
Two practical examples will be mentioned. The first is the National Youth Service
Corps Act Cap. N 48 LFN 2004 which was enacted to bring young graduates
from one part of the country to another to integrate with people of different
social religious and cultural beliefs. Its primary purpose is to promote unity and
togetherness among people of different tribes and belief since its formation has
continuously encouraged social interaction and engineering among the people
of Nigeria.
The second example is the Constitution of the Federal Republic of Nigeria 1999
which provided for the Federal Character Commission in S. 153 (1)(c) which
primary responsibility is to make sure that appointment into public office reflect
the countries tribal composition. This law has promoted public unity and created
an environment where every tribal group will be able to say they are adequately
represented in the government running the country whether they belong to the
majority or minority tribe.
It is now clear that though the primary aim of law is social engineering, the fact is
that sometimes laws cannot meet up to that standard. Every government should
take upon itself the responsibility to make sure that every law it enacts should meet
up with the standard given by Pound and anything below that will be unacceptable
with the sociological position on what law should be.

4.7 The Pure Law Theory


4.7.1 Hans Kelsen (1881 1973)
Hans Kelsen was the chief proponent of this theory. His views are very descriptive
and illuminating that Ota Weinberger has described him as The just of our
century. In fact no other writer of our century has made more contribution to the
understanding of our legal system than Hans Kelsen. Not only has he been able to
stimulate thoughts but he has provoked further inquiry, made lucid analysis into
the structure, meaning and validity of law. However, in spite of all these profound
praises showered on him there has been a lot of criticisms mostly caused by peoples
failure to take into cognizance his political and intellectual background, against
which Kelsen developed his Rechtswissens craft and the influence of Sigmund
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Freud, the Vienna circle of philosophy, and the remaking of central Europe after
World War I as described by Stone.
Kelsen developed a form of jurisprudence which aided the development of our
legal system and jurisprudence. He believed in the study of law as it is and not as
it ought. He considers himself as a positivist not a moralist i.e. law is a science not
as an art. He said:
The pure theory of law is a theory of positive law. As a theory it is
exclusively concerned with the accurate definition of its subject matter. It
endeavours to answer the question, what is the law? But not the question
what ought to be? It is a science and not a politics of law.
An ordinary on looker might consider Kelsens method as that taken by Austin and
Benthams propositions since Kelsen saw law as a science and Austin and Bentham
also saw it in that way. But the fact is that what perpetrated Kelsens proposition
was different from that of Austin and Bentham. Kelsens primary interest was
one of hierarchy of norms a model which he advanced. He believed that there
are various norms in a society and following each other in an orderly format and
until, finally, an ultimate source of authorization is reached in a basic norm termed
Grund norm.

4.7.2 Norms
A norm is a model or standard accepted (voluntarily or involuntarily) by society or
other large groups against which society judges someone or something. The next
question should be how does a norm exist? A norm exists with a system of norms
of which it forms a part of. The fact is that no norm can be proven to exist except
that it was derived from another norm. If a norm can be derived from another
norm then it means that norms can be created from each norm created and this
process will go ad infinitum. This process is acceptable but it must be known that
there is one basic norm which all these norm stand on. This is the ultimate norm
which no other norm can override. It must be an extra-legal norm or father of
all norms.
Hans Kelsen also believes that these basic norms were not chosen arbitrarily
which was in reply to Professor Stones criticism.259 He simply stated that this final
norm must be efficacious i.e. it must be chosen by the people and the people must
conduct themselves in accordance to its character. This norm is not positive law
259 17 Stan L.R 1128, 1140-1151

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but may have some of its ingredients. It simply means that it is not a science but
it is formal when it gives unity to the legal system and making the limit of those
norms which are the subject of a legal system.

4.7.3 The Basic Norm


According to Hans Kelsen the basic norm is the coercive act sought to be
performed under the conditions historically giving the genesis of the first norm,
like the Constitution and the norms created according to it prescribes methods of
creating other norms. The basic norm is the first and final norm, usually called the
apex of a normative pyramid. This apex norm guides the determination of cases
brought before a judge. These cases pass through a long collection of norm until
it reach the final and ultimate norm called the Basic norm. Kelsen further stated
about basic norm that:
The basic norm of law can only be the fundamental rule, according to
which the legal norms are to be produced; it is the fundamental condition
of law making. The individual norms of the legal system are not to be
derived from the basic norm by a process of logical deduction. They must
be constituted by an act of will, not deduced by an act of thought.
Critically, Kelsen postulates that this basic norm regulates its own growth and its
own making therefore encouraging a system of law making unity in a particular
society. According to him the laws of a country are not a system of norm which
stand in equal positions but they stand in a form of hierarchy with different
positions gauged by level of authority. He also made further description of these
hierarchies using the basic example of a States legal system. To him the highest
level of law in a State is the Constitution which represents the Basic norm and the
essential function is to determine the organs and procedure to enact the general
law of that same State.
The other level is the stage where you have general norms where their functions are
simply to determine the organs, procedures of courts, administrative tribunals and
their contents for the purpose of grouping them into a single norm. Kelsen also
added that judicial decisions are also part of the individual norms. This according
to him is the individualization or concretization of the general abstract norm; the
individual stage of the law making process.
Finally he argues that judicial decision can also influence administrative decisions.
This view was however largely criticized by E. Bodenheimer since according to
him administrative decisions are discretionarily made while the law itself will
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check these administrative decisions. It seems as though Bodenheimer was


quite unaware of Kelsens further writing on this topic, since he believed that
this administratively formed norms must stand in a subservient position to the
higher norm which will serve as a check on it. This check could be in the form of
administrative or tribunal courts. It could even be in form of an official such as the
Scandinavian ombudsman.

4.7.4 Kelsinian Sanctions


From the beginning Kelsen never differentiated himself from the positivist. He
believes that every legal norm no matter what state of the hierarchy must possess
a sanctionable character. He believes that the basic purpose of law is to achieve
social order and the instrument best adapted to this is sanction. This group of
theorists opines that sanction is a basic character of law because it stipulates that
coercion ought to be applied by officials where offence is committed.
Kelson further argues that laws are imaginary hypothesis devoid of morality but
scientifically agreed by the majority or representative of the society as binding law.
He made reference to the Constitution or binding resolution or international legal
order as examples of laws that are devoid of customs and morality as scientifically
binding and legally valid that the society is bound to obey.
A final feature of his view is that if a citizen of a state commits a wrongful act then
the court will give a deserving sentence which will come in the form of penalty.
In effect the primary purpose of a legal norm is not simply to impose obligation
and duties on a citizen but to give what a judge or official will do if an offence
is committed.

4.7.5 International Law


Hans Kelsen believes that international law is positive law as proposed by the
positivists. He claims that international law can be integrated into local laws of
different nations and such integration will lead to a term called monism. This
unilateral composition of international law and municipal laws of different nations
was what Kelsen proposed. But this view never survived the test of time. Kelsen
later proposed a Basic Norm for international law. The question is can international
law have a basic norm? The fact is that in reality there is no basic international
norm. Although in international law, we have the principles of jus cogen; that is
peremptory norm of international law for which no derogation can be allowed.
But this is not the type of norm being referred to by Kelsen, he is not concerned
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with practical realities instead he postulates that the basic international norm is
a coercion of state against state ought to be exercised under the conditions and in the
manner that conforms with the customs constituted by the actual behaviour of states. In
effect Kelsen is saying that there must be an international revolution whereby one
State or bloc capturing world power would conclusively say that it could dictate
new rules of international law to the rest of the subjugated world.

4.7.6 Critical Assessment of Hans Kelsens view


Hans Kelsen no doubt has made the most distinctive and complemented
contribution to law in our time. And certainly, it cannot be denied that he has
done as much as anyone, by his lucid analysis and tenacious defence, to stimulate
thought and provoke further inquiry into the meaning structure and validity of
law. There is no doubt Kelsens view is relevant to Nigerian legal system. Kelsen
believed in an order of legal norms with the greatest norm which he called the
basic norm as a law that guides the formation of other norms which must be
subordinate to it. The Nigerian Constitution260 is that basic norm that Kelsen is
talking about. Two sections of this Constitution are worth considering. Firstly,
section 1(1)261 says that:
This Constitution is supreme and its provision shall have binding force on
all authorities and persons throughout the Federal Republic of Nigeria.
However what confirms Kelsens analysis of a basic norm was section 1(3)262
which provides:
If any law is inconsistent with the provisions of this Constitution, this
Constitution shall prevail and that other law shall to the extent of the
inconsistency be void.
This section solidifies the authority of the Constitution as the basic norm of our
legal system. Not only is there a basic norm there are also other legal norms which
fall below in the Hierarchy. Other laws like the Companies and Allied Matters
Act,263 Companies Income Tax Act,264 Computer Professionals (Registration

260
261
262
263
264

C.F.R.N 1999
C.F.R.N 1999
C.F.R.N 1999
Cap. C 20 L.F.N 2004
Cap. C 21 L.F.N 2004

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Council of Nigeria) Act265 and the Evidence Act.266 By section 1(3) each of these
legislative enactments (legal norms) must conform to the Nigerian Constitution
(Basic norm). This simply shows how Kelsens view has displayed its relevance to
our legal system. In fact, most countries of the world possess basic norms where all
other norms derive their validity. Nigeria is not the only country that has followed
this doctrine. Countries like Ghana, Cameroon, South Africa and the United
States of America have followed Kelsens proposition.
One important issue which must be considered is the question where does the
Constitution (basic norm) derive its authority? The same Constitution seems to
have answered this question in section 4 (2)267. It provides:
It is hereby, accordingly, declared that sovereignty belongs to the people of
Nigeria from whom Government through this Constitution derive all its
powers and authorities.
The Constitution itself has said that the people gave it the power. The question
whether this part of the Constitution is justiciable is another matter worth
considering for another day but what is most important is the above provision.
This has settled the matter. However one issue worth considering is countries
which have followed Kelsens legal theor