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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.
iv
Table of Contents
Acknowledgements iv
Table of Cases
xiii
Table of Statutes
xviii
Chapter One
Introduction to Jurisprudence
Nature of Jurisprudence
1
3
13
19
27
27
1.1.7 Cicero
28
31
1.1.9 Aristotle
41
53
54
54
58
Introduction 3
1.1 The Contributions and Development of
Jurisprudence by Some Philosophers
4
1.1.1 Jeremy Bentham
4
Nature of Law
64
65
67
71
71
76
76
77
2.3
2.4
2.5
2.6
79
80
89
92
99
101
102
102
104
106
109
110
110
114
116
118
120
122
Chapter Three
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
135
136
3.3
137
Interpretation of Statutes
139
140
143
144
145
146
3.5
148
150
152
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
153
158
160
161
162
164
164
3.8
167
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
3.18.2 Rules
188
189
Conclusion 190
Chapter Four
Theories of Law
191
191
195
195
199
200
201
204
204
204
206
208
209
212
213
214
215
216
218
222
224
225
4.3
225
228
232
Table of contents
233
233
236
4.4 Realism
4.4.1 The Realist Theory
4.5
240
241
242
242
243
244
245
250
250
252
256
257
258
258
4.7.2 Norms
259
260
261
261
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
272
273
ix
5.4
275
275
2.
276
3.
277
4.
ALI 278
280
280
282
283
283
285
286
5.6.8 Customs
287
5.9
5.10
5.11
5.12
5.13
5.14
5.15
5.16
5.17
291
291
291
5.8.3 Zakat
292
293
5.8.5 Hajj
293
294
295
295
299
299
II)
300
301
303
304
307
308
Table of contents
309
312
313
314
316
317
322
5.19
5.20
5.21
5.22
327
327
328
330
333
334
335
336
337
338
340
340
2. Iran
344
3. Saudi Arabia
348
4. Sudan
349
5. Egypt
351
6. Tunisia
354
7. Morocco
355
Chapter Six
359
359
360
362
364
xi
6.2
6.3
367
370
371
371
372
381
382
Criticisms 384
Hohfelds Scheme of Rights
386
390
392
400
401
404
405
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
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
Table of cases
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.
S.2
3.
S.56 (1)
S.58
4.
5.
S.1 (4) c)
6.
Sharia Court of Appeal Law (Northern Nigeria Law) CAP 122 1963
S.14
7.
8.
S.364
S.26 (a)
9.
S.10 (2)
S.319 (2)
11.
Table of statutes
S.82
12. High court Civil Procedure Rules of Kano State
S.12 (2)
17.
Article 38(1)
Article 59
S.24 (2)
Article 2
Article 31
Article 36
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
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
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.
Nature of jurisprudence
Nature of jurisprudence
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
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.
Nature of jurisprudence
11
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.
13
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
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
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.
2.
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.
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
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
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
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.
26
Nature of jurisprudence
27
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
28
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,
29
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
30
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.
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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33
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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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Nature of jurisprudence
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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39
Nature of jurisprudence
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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Nature of jurisprudence
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,
43
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
Nature of jurisprudence
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.
45
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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48
Nature of jurisprudence
1.
2.
3.
4.
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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Nature of jurisprudence
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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Nature of jurisprudence
53
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.
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.
55
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.
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
Lex iniusta non est lex? Do seriously unjust laws bind? Legally?
Nature of jurisprudence
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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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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
61
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
63
15
64
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.
65
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
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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.
2.
3.
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.
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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.
69
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
72
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.
73
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.
4.
19
20
5.
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
74
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.
7.
75
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.
Nature of law
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
77
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.
79
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.
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.
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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.
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.
83
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.
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.
85
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.
86
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.
87
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
88
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.
89
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
91
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.
92
Nature of law
46
47
48
49
93
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).
94
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
95
96
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
97
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.
99
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
100
Nature of law
101
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.
102
Nature of law
103
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.
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
105
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
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Nature of law
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.
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
107
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.
75
108
Nature of law
109
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.
Nature of law
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.)
76
77
111
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
112
Nature of law
113
114
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.
91
92
93
115
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.
117
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.
119
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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121
122
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
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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
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.
2.
3.
6.
7.
8.
9.
Chapter Three
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.
127
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
129
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
130
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.
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.
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.
132
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.
133
134
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
135
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:
-
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
136
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
-
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.
137
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
139
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.
140
141
142
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.
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.
145
146
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.
d.
e.
147
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.
148
(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)
149
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
150
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
151
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
152
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:
-
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.
153
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
154
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
155
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.
156
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.
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
157
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
158
159
c.
d.
b.
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.
160
161
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.
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.
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
162
4.
202
203
204
205
163
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.
164
165
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.
166
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
167
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
168
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.
169
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.
c.
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
172
173
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
175
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
176
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.
177
178
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
179
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.
180
181
though a political party are bound by their Constitution which can be regarded as
an instrument of soft law.
182
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
183
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
184
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.
3.18.1 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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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
186
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.
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.
187
FURTHER READING/REFERENCE
1.
240
188
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.
189
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.
191
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.
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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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.
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.
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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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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.
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.
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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.
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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.
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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.
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.
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
Limited altruism
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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
Sociability or Friendship
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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.)
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
217
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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.)
247 Constitution of the Federal Republic of Nigeria 1999 FRN Chap. IV Section 33 44.
219
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.
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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)
2)
3)
4)
Retroactive legislation;
5)
6)
Demands that are beyond the power of the subject and the ruled;
7)
8)
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
221
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.
222
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ii.
iii.
iv.
223
224
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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.
2.
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.
225
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.
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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
227
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.
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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.
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231
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.
234
Theories of law
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
235
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.
237
238
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239
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.
Theories of law
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.
2.
3.
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.
241
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.
242
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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
243
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
244
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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
245
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.
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247
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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.
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.
251
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.
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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.
253
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.
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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.
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
256
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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.
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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.
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
259
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 theory. In fact, no Constitution is recognizable
i.e. in the United Kingdoms legal system, however Hans Kelsen seem to have been
able to give his version of the British legal order in Kelsinian terms. He stated that
the basic norm of the United Kingdom legal order is that coercive acts ought to be
applied only under conditions and in the way customarily recognized as Constitutional
from time to time by the population at large. It is not clear whether Kelsens view
explains the issue. If we use the United Kingdoms format of legal norms, that
system does not go in line with Kelsons Hierarchy of norms. British legal system
is not alone in this as other countries of the world have found alternative ways of
formatting their compilation of legal norms.
In conclusion, Professor Hart made a condemnatory statement about Kelsens
view on basic law. He opined that Kelsens theory says nothing more than that
those who accept certain rules must also observe a rule that the rules ought to
be observed. This he said was wholly unnecessary, if not a spurious assumption.
Though Harts view is quite true to some extent but this does not do justice to
Kelsens display, understanding and learning in his various propositions.
265 Cap 22 L.F.N 2004
266 Cap. E14 L.F.N 2004
267 L.F.N 2004
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No doubt we can describe him as the jurist of the century and no one who has a
sincere sense of mastery of the law can object to his view.
FURTHER READING/REFERENCE
1. Tuck, Natural Right Theories (1979) chap. 1
2. DEntreves Natural Law (Rev.edn. 1976) p.16
3.
4.
5.
6.
7.
8.
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263
264
Chapter Five
Islamic Jurisprudence
Introduction
Every Muslim has the responsibility whether as a man, woman or child to read
the Koran and understand it according to his own capacity. If this is done to such
outstanding capacity, it is the Muslims duty to instruct others, and share with
them the joy and peace which result from his contact with the spiritual world.
When a Muslim reads the Koran he is expected to have absolute commitment
both from his hearts conscience and intuition to his tongue, voice and eyes. It
is this spirit that an average Muslim should have when reading the Holy book.
Islamic Jurisprudence is so wide that no single individual can have an absolute
understanding and comprehension. Besides, the revelations of the Koranic verses
to the Prophet Mohammed (peace be upon him) by Allah, there are other literary
writings by special groups and individuals that may have contributed immensely
to the development of Islamic jurisprudence. The fact is that the volume of work
added to Islamic literature is positively challenging and very educative as it covers
all aspects of endeavors.
Though it is generally accepted that Koranic literature has expanded in terms of
contributions made by different authors the quality of work drawn out by these
schools have been put into question. In fact, it is well known that the work of these
authors have been criticized by Muslim readers sometimes questioning their
authority on interpretations and contributions made by them. It is hoped that the
new Renaissance of Islamic law which is just beginning will sweep away cobwebs
and let in the full light of reason and understanding.
Before going into full Islamic Jurisprudence it is good to answer the question:
what is Islamic Law? Islamic law is the law of Islam. It is divine law, it is immutable
and unchangeable. It is sacrosanct, indelible and constant. Islamic law got its name
from Islamic religion which is the way of life of a Muslim. It finally means the law
given by Allah through his servant Prophet Mohammed (peace be upon him).
265
Many issues have come up since the time of the Prophet Mohammed (peace be
upon him). The Islamic religion is universal with people from all over the globe
making their own jurisprudential interpretation creating a huge composition
of different views on the same question. Under this precarious situation many
famous Islamic Jurists have expressed their views on the subject. Abdullah Yusuf
Ali the editor of the new edition with revised translation, commentary and newly
compiled comprehensive index of the Holy Quran said:
For my part I agree with this protest while freely reserving the Right of
individual judgment on the part of every earnest writer, I think the art
of interpretation must stick as close as possible to the text which it seeks
to interpret. Every serious writer and thinker has a right to use all the
knowledge and experience he possesses in the service of the Quran. But he
must not mix up his own theories and conclusions, however unreasonable
with the interpretation of the text itself, which is usually perfectly
perspicuous as it claims it to be.
Many difficulties have been identified as reasons for this precarious situation.
Firstly, during the period of Prophet Mohammed, Arabic words in its context
acquired a meaning which is different from our time. In fact it is generally known
that every language go through a process of change from century to century. As
a result of these transformations, various Islamic schools went into this matter
with the understanding of this uncertainty and we have no choice than to accept
their views. When they do not agree on some familiar issues, we must use our own
judgments to choose which arguments and interpretation sooths us most.
Secondly, when earlier commentators make some arguments on a matter in
Islam, other Islamic scholars have sometimes made counter arguments which are
contradictory to the former. They seem to have taken advantage of the well known
view that since the early period of the Prophet the Arabic language has developed
from time to time. The best solution for this seeming confusing situation is
to choose the views of former scholars and if the latter scholars make sound
contradicting argument it would be wiser to follow the latter view.
Thirdly, the Quranic language distinguishes between things and ideas of a certain
kind by special words and the effect is that since there is only one general word
in English there will be a confusing situation where an English word will mean a
thing or idea in English but that same word when translated to Quranic language
will mean different things.
266
For example the words Pahman and Rahim in English mean most merciful and
the words Safaha, afa and ghafara means to forgive. In terms of the first using
the word Mercy in English term means we have a limited idea of Allahs Mercy
but when used in Quranic literature it implies not only pity and forgiveness but the
grace which protects us and keep us from sin.
The fact is that every Islamic scholar is likely to have his own background and this
will in no doubt influence his writings causing divergent views on the same matter
and exhibition of peculiar idiosyncrasies. The solution to this situation was given
by ABDULLAH YUSUF ALI when he said:
One final word to my readers, read, study and digest the Holy book, read
slowly, and let it sink into your heart and soul. Such study will, like virtue,
be its own reward. If you find anything this volume to criticize, please let
it not spoil your enjoyment of the rest. If you write to me quoting chapter
and verse, I shall be glad to consider your criticism, but let it not vex you if I
exercise my own judgment in deciding for myself. Any corrections accepted
will be gratefully acknowledged. On the other hand, if there is something
that specially pleases you, it will be a pleasure to know that my labour has
not been in vain. If you address me in care of my publisher as his Lenore
address, he will always forward the letters to me.
a result of lingering problematic questions about the Islamic belief during their
time. Some of the processes of doing this was by the use of principles of analogical
deductions and consensus. This process led to the election of Abubakar as leader
of the group. The reason for such choice was that Abubakar was always asked by
the prophet to lead them in prayer and also on the analogy that the person who
leads on matters of religion should lead on matters of worldly affairs.
Primary Sources
a. Divine Sources
i. Quaran
ii. Sunnah or the Haddiths of the Prophet
2.
Secondary Sources
a. Human Sources
i. Ijma (Consensus of the Muslim community)
ii. Qiyas (understanding by analogy or analytical deduction)
iii. Ijtihad (understanding by independent and personal reasoning)
The primary source of Islamic law is the Quran. This Holy Book was not produced
during the time of the prophet but during the time of the caliphs. The Quran was
compiled by the instrument of the Ijma during the caliphate of Uthman. These
volumes were verified by a Committee chaired by the erudite Zaid bin Thabit.
The outcome of the committee led to a carefully edited volume which is till date
regarded as the most authentic text. For Muslims all over the world, two secondary
source of Islamic law is the Ahaddrth. This however was not documented because
caliph Umar refused to allow the compilation because of the fear that people might
take them and discard the Quran.
After the death of Ali, the Umayyad dynasty which was the dominating group
during that time removed the Islamic capital from Medina to Damascus in
Syria. These rulers were more worldly than spiritual i.e. they never contributed
to the development of Islamic Jurisprudence thus making the study of Islamic
Jurisprudence a private and independent thing. After this period, four major
Islamic schools of thought emerged and each of them contributed to what is today
known as the Sharia law. They include:
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reliable and accepted it must have been upheld by different authors and Jurists of
Islamic Jurisprudence.
Characteristics
A major characteristic of this school is the reliance on the divine publication of
Allah who is the messenger from God that everybody must obey. It discourages
the use of personal opinion to interpret Islamic doctrines. According to them even
prophet Mohammed (peace be unto his name) never used his personal views to
interpret the Koran. Everything was done in such a way that every word that came
forth was divinely ordained.
(1) Imam ShafiI believed in the use of the tradition of the prophet or the
Ahadith as an important part of Islam. Such traditions must be obeyed
and accepted by the generality of Muslims. When the question was asked
when there are two contradicting tradition on the same matter he used
harmonizing interpretation and never considered two traditions from the
prophets contradictions, if there is a way of accepting both. However, if
no common ground can be accepted he would take the tradition closest
to the tradition.
(2) Imam ShafiI also accepted Ijma in his form of Islamic Jurisprudence. He
however disagrees with the belief that for there to be Ijma there must be
agreement of a few Islamic scholars or Jurists in a community, instead he
believes that there must be an agreement of the entire community. The
main objective of this is to create law which will not only be practicable
but uniform in applicability in the entire community.
Islamic jurisprudence
The modernist idea created an alternative to the primary source of law which
was the Quran and the Islamic schools. One would think that their revolutionary
stance was caused by their western influence and the order to acquire resources to
make life better for them and their families. Whatever might be said about them
the fact is that their primary aim was to refute the over rigidity of the finality of the
schools and the taqlid.
1.
Abu Bakr was the father of Muhammads beloved wife Aisha. It means therefore
that Abu Bakr was Prophet Muhammads father-in-law. He (Abu Bakr) was with
273
the Prophet from the beginning and throughout the period of military campaigns.
He proved himself to be a military genius.
As soon as the Arabian tribes heard of the demise of Muhammad, the prevailing
Islamic peace and most of the alliances collapsed. Some tribes revolted under the
leadership of rival prophets. This heralded the period the Muslims call al-Ridda
(The Apostasy). Abu Bakr spent considerable energy in the first years in quelling
these insurrections.
It was after the rebellions had been quelled that Abu Bakr began a war of conquest.
He began with Iraq but before he could launch an attack on the Persian Empire, he
died his death came barely two years after he had succeeded the Prophet.
2.
It has been the desire of Abu Bakr that Umar should succeed him and he mobilized
the most powerful of the followers of the Prophet to go along. Umar was
talented both in the field of politics and in the military circle. It was his political
acumen that had helped to glue the Islamic world together during the life of
Prophet Muhammad.
The war of conquest begun by Abu Bakr was continued by Umar. He succeeded in
making incursion into the Persian Empire but did not stop there and also headed
north into Syria and Byzantine territory and West into Egypt.
Umar remains one of the greatest political geniuses in history. As the empire was
experiencing enlargement at a very impressive rate under his guardianship, he was
also building political structures that would unite the vast empire. It was not in
Umars pre-occupation to convert non-Muslim faithful/populations to Islam.
Also, he did not try to centralize government as the Persian did. Rather, he gave the
liberty to subject-populations to retain their religion, customs and government.
Perhaps, the most creative innovation achieved by him was in the area of building
a stable financial structure to the empire. He had the understanding that the most
crucial aspect of the empire was a stable financial structure for the government.
As a result of this, he established an efficient system of taxation and brought the
military directly under the financial supervision of the state. He equally funded
the diwan (it is a unique Islamic institution). The diwan is composed of individuals
that were of utmost importance to the Islamic faith and the Islamic world as a
whole, such as the followers of Muhammad.
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The fixing of many Islamic traditions and practices was done by Umar, who
equally undertook the process of producing the Quran. Perhaps, what he will be
remembered for is establishment of the Muslim calendar.
3.
Umar, approaching his death, appointed a six-man committee for the purpose of
deciding the next caliph they were specifically instructed to choose one of their
own members.
The six-man Committee so appointed eventually proved to be very crucial because
from its preferred choice grew Islams first schism. The Committee, in order to make
its task simpler, narrowed down the choices to two: Uthman came from Umayyad
(one of the wealthy clans that had vehemently and bitterly opposed Muhammad).
Uthman was a highly practical and intelligent military and political leader, whereas
Ali was a staunchly committed religious disciple. In Alis conviction, Islam had
gone astray and that it was deviating from the religious, ethical or social principles
enunciated in the Prophets revelation. This striking difference between the two
candidates, led the committee to choose Uthman.
The decision to choose Uthman ahead of Ali was not a popular one. Uthmans
twelve year reign as Caliph met with increasing resistance both from the original
followers of the Prophet and the generality of Islamic people.
In spite of the numerous challenges, Uthman continued the wars of conquest
carried out by Umar. The Islamic empire under Uthma conquered Libya and
conquered fully the eastern part of the Persian Empire.
But, the government seriously mis-managed finances all through the empire.
Unrest grew alarmingly and rapidly. A bitter riot broke out in 656 in Medina
leading to the rioters to even throw stones at Uthman. Following this, he solicited
for military help. But before the help came, the rioters broke into Uthmans house
and killed him while he was reading the Quran.
The irony in Uthmans death presents us with the fact that Uthman was the first
Islamic caliph and also the first Islamic leader to be killed by fellow Muslims.
However, Uthmans greatest and most lasting achievement was the formal
documentation of the Quran. Before now, the Quran was largely in oral form and
was recited by followers who had memorized it. What Uthman did was to collate
all versions, written and oral and produce a definitive written-down version. This
275
definitive version later became the main text of Islam and the foundation on which
all Islamic history was built.
4.
ALI
Ali was the son-in-law of Muhammad and had been a companion of the Prophet
from the inception of his mission.
The assassination of Uthman was a very tragic event in the annals of Islam. This
particular murder was not a simple one; it was in fact a revolt and coup detat.
The natural law has been that where a revolt fails, the rebels have to pay for such
revolt with their lives. But if the revolt succeeds, the rebels been the victors would
not be required to pay the supreme price with their lives. The rebels on their own
transferred the power captured by them to the people and gave them the discretion
to elect the new caliph. Following this the people elected Ali as the caliph. The
people in the circumstance exercised the power delegated by the rebels to them
and as such Ali owed his election to the rebels. In the present situation the cry
for vengeance for the blood of Uthman had become belated and it could not be
raised before Ali. The cry for vengeance was only done to cause chaos and create
problems for Ali. If for the sake of argument he was implicated in the murder, he
could not be called to account as he was already in power.
When Ali assumed the caliphate, he decided to dethrone the provincial governors
appointed by Uthman and appointed new governors in their place. Ali felt that
in the interest of the state, it was necessary that there should be a change in the
provincial governors since some of them may become power-drunk as a result of
over concentration of power.
Ali noticed that for some time past the Muslims have abandoned the austere way
of the life of Islam and had taken to the extravagant way of living copied from the
non-Muslims. Ali had a laudable program to restore Islam to its pristine purity. For
this programme to succeed, it was necessary that Ali should have, as the provincial
heads, persons in whom he had trust and who could be relied upon to carry out
his policies into action.
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277
278
Islamic jurisprudence
However, there are some clear distinguishing elements between Quranic laws and
the Austinian view of law particularly with respect to the sovereign.
In the Austinian sense, the sovereign is of a given society who is a determinate
human superior, not in the habit of obedience to any superior and receiving
habitual obedience from a bulk of the members of society. However, under the
Islamic law, God is viewed as the absolute sovereign of the whole universe and
all mankind. His influence is not limited to particular societies but extends to the
entire world. He is the creator of the world and His commands must be adhered to.
From this perspective, it is clear that the sovereignty of Allah cannot be compared
to the sovereignty of man.
From another angle, Austin views law as the command of a sovereign over other
persons in a society. It consists of rules laid down for the guidance of an intelligent
being by another intelligent being having power over him. From this perspective,
law is viewed as being in isolation from other concepts like justice and morality.
What is law is dependent on what is contained in the statute books and there are
no other criteria that will influence the law as it is. Law in the Austinian sense
is the command of a tyrant and all persons subject to his power must observe
the laws imposed strictly. Under the Islamic law however, God while being the
absolute sovereign, cannot be viewed as a tyrant. He is Allah, the most Merciful,
most Gracious and Just. The laws embodied in the Quran are not tyrannical but
are directed at safeguarding the interests of all mankind.
The coercive element of law which is a necessary ingredient in the Austinian view
of law is not exclusively present in the Islamic law. Austin believes that for law
to be valid there must be elements of coercion which compel their performance.
The absence of coercive elements in a law makes it no law in the Austinian sense.
This is a very limited view of the law since it is not in every law that the coercive
element must be present (e.g., the laws on marriage). In the Islamic context,
laws do not need to be coercive to be valid. This does not mean that there are
no coercive elements in the law. Offences such as murder, adultery, fornication,
theft and highway robbery are punished severely under the Islamic law. However,
Islam is also known for laws which are aimed at correcting and persuading persons
in their daily living. The importance of the Quran as a source of Islamic law is
of great importance and all legislations which are contrary to it are not binding
on believers.
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other hand, Hadith literally means a saying conveyed to a person or that which has
happened, and hence it include those sayings and doings of the Holy Prophet From
these definitions, it is clear that while Sunnah refers to the actions, Hadiths
represents the sayings of the Holy prophet. This difference in definition is only
a technicality and in practice; either Sunnah or Hadiths are used when reference
is made to the traditions of the prophet. The question whether the term Sunnah
should be used in place of Hadiths and vice versa is only a moot point and has no
practical relevance. What is important is that Muslims endeavour to inculcate the
sayings and actions of the prophet in their daily lives which will be pleasing in the
eyes of Allah.
rules which are not expressly contained in the divine sources of Islam but which
are necessary for the changes that have taken place in the Muslim world. The world
we live in is a dynamic place where changes take place every day. If there is absence
of jurists to interpret the divine laws in a manner to accommodate changes, this
may lead to stagnation in the Islamic law.
The validity of the ijma as a source of law may be found in the Quran which says:
Obey God and the Messenger and those of you who are in authority.274
The Sunnah of the prophet equally reflects the validity of the ijma as a source of
law. During His lifetime, the Prophet was known to have made consultations with
His companions and accepted their opinions on certain matters. In the words of
the Hadiths, my community (Ummah) will never agree upon an error. This authority
constitutes itself as a valid ground upon which the Ijma is based.
The ijma can only stand as a source of Islamic law where it does not deviate from
the spirit and principles of the Quran. This rule is of great significance as the
Quran makes it clear that whoever does not judge or legislate according to the rule
of Allah is an unbeliever.
In his book, Mahmud mentioned the following matters as being settled through
the ijma:
Succession to the prophet by Abu Bakr
Collection of the Holy Quran
Serial order of the Quranic verses
Classification of the Quran into chapters
Serial order of the chapters
Division and naming of the Quranic parts.
The importance of the ijma as a source of law is seen in its ability to adapt to
changes in society. It corrects the wrong notion that Islam is based purely on
theoretical principles since it makes room for new issues as they arise. It may be
argued that the ijma is the most important source of law considering its dynamic
nature. Despite its dynamism, it is submitted here that the Quran and the Sunnah
rank in superiority over the ijma. The authority for the ijma is directly traced to
these two sources. While it is true that the ijma is of great importance, there would
274 Quran 4: 59
282
Islamic jurisprudence
be no ijma without the express authority contained in the Quran and Sunnah of
the prophet. To conclude the matter, the ijma is a very important source of law and
at all times, care must be taken that the consensus or agreement reached does not
go outside the purview of the divine sources of law.
283
marijuana was not known and so, the jurists have a duty to adapt these divine
sources to suit changes in society and make laws accordingly.
To be valid, the result of the Qiyas must not run contrary to the rules contained
in the Quran and the Sunnah of the prophet. These sources are of a divine nature
and should not be deviated from as this may be considered to be against the will
of Allah. Where it is shown that the original prescription which is to be subjected
to analogy is beyond comprehension or is not capable of being extended, analogy
is not to be applied. Also, qiyas should not be used in the determination of the
meaning of words but to ascertain point of law. Finally, when analogy, has been
used in the determination of legal issues, its result should not cause ambiguity.
It should be clear that the analogical deductions arrived at must accord with the
spirit of the Islamic law.
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Islamic jurisprudence
5.6.8 Customs
Generally Customs could be described as a practice that by its common adoption
and long, unvarying habit has come to have the force of law. Islamic Jurisprudence
has not failed to recognize these practices. In fact once a custom is in practice in a
society and the Quran and the Sunnah has not made a provision that contradicts
such behaviour then the custom will be recognized. Also when primary sources of
Islamic law has not provided for a particular usage that is accepted as custom to the
people then such usage will be accommodated by Islam.
In Nigeria, during pre-independent period Caliph Mohammed Bello developed
the principle that custom must play a leading role in the formulation of policies
and legislation and in the running of government in general. He further defined
custom as a usage which extends over a whole country or part of it can be assumed
to mean the totality of the historical and cultural experience of a given people,
which gives them traits, instincts, taste and other characteristics that distinguishes
them from others. Mohammed Bello also stated that these customs and usage
must reflect in the body of laws of a people and such laws will always take the
form of the customs of the people it governs. To him since customs change over
a period of time such laws must also reflect whatever changes that might come
up. The rationale behind this argument is that if faithfuls enact laws or behave in
a way that is accepted and is in harmony with the Quran and the Sunnah of the
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promptly accepted this resemblance law since it has made no distinction of it. In
the case of Shalla vs. State the court was of the view that:
Sharia guarantees and values sanctity and dignity of human life. That
is why it outlaws unlawful taking of life. The Quran has several verses
in various chapters where it outlaws such nefarious acts. The prophet
is reported to have said that the first action to be judged on the Day of
Judgment is the spilling of blood. In another Hadiths, he is reported to
have said that three things have been made illegal to a Muslim.
To deprive him of his life;
To deprive him of his property; and
To deprive him of his honours or integrity.275
Furthermore the principle of an eye for an eye is also a good example. Hausa
Fulani custom postulates that if a person kills another he too must be killed. In the
Shalla case the court was of the view that:
The appellant in this appeal did not show any of the courts that he had
the requisite authority to take away the life of the deceased. He thus
unlawfully deprived the deceased the opportunity to defend the allegations
leveled against him before any court of law or authority. The village head
of Kardi who was contacted by the appellant and others for authority to
execute the deceased flatly refused authority as he fully well knew that he
was not the right authority to grant such leaveI cannot see how these
kind of people shall have any respect by the law. What is good for the goose
is good for the gander. Life is precious to all and sundry. He who kills by
the sword shall die by the sword. I have no sympathy for the banishment
of such busy bodies who respect no human life due to their high degree
of misapprehension of the law or, should I say, complete ignorance of the
law. The appellant failed to convince me through his explanations. But he
is free to make further And better explanations to the hang man, though
belatedly It may be.276
Customary law in Northern Nigeria particularly among the Fulani Hausa tribe also
made telling contributions on the grounds for which a married woman can obtain
a judicial dissolution of her marriage. One of such ways is husbands inability to
maintain his wife. If a man is unable to maintain his wife their custom says it is a
275 (2007) 8 NWLR [Pt. 1066] at pg. 298 para E -H.
276 Per Mohammed JSC at pg. 298 -299, para HD.
287
good reason to dissolve the marriage. Sharia also accepted these principles and
treats it as part of it. In the case of Rungumawa vs. Rungumawa the court was of
the view that:
under Islamic law of marriage, if a petitioner comes to court and
complains that her husband does not feed, clothe or accommodate her, she
is able to call witness in proof, the court should grant the respondent about
two months to comply and improve things. If after this period, he fails to
improve things, if after this period, he fails to comply, then the court shall
dissolve the marriage. In the instant case the respondent had no answer to
the allegation of the appellant that he cannot feed, clothe or accommodate
her. Therefore, the trial Sharia Court should have ruled that the appellant
had proved that the respondent was incapable of maintaining her and
should have declared the marriage dissolved.277
Sometimes, customs that seem not to follow conditions given before an action
can be permitted and will be accepted by Islam, if the circumstance demands such.
For instance, under Sharia law in Northern Nigeria, the ground of which a married
woman can obtain a judicial dissolution of her marriage can only be based on:
her husbands failure to maintain her;
desertion by the husband;
impotence;
incurable disease and
cruelty.
But the truth is that sometimes custom can permit a woman to obtain a judicial
dissolution if the woman has indicated her strong dislike for her husband and she
promises to pay back the money he spent for their marriage. The Islamic courts
have always admitted such actions in courts since they have no way of forcing a
woman to stay with and love her husband.
From all these convictions it can be said that Islamic law has accepted custom as
a source of law. It not only recognized such but its courts have from time to time
enforced customs even when Islamic law has provided for such circumstance. See
the case of Rabiu vs. Amadu where the court held that:
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Faith or belief in the oneness of God and the finality of the prophet hood
of Mohammed;
278
(2003) 5 NWLR [Pt. 813] per Muntaka Coomassie JCA at pg 374, para F H.
289
God is great
God is great
I testify that there is none worthy of worship except God
I testify that there is none worthy of worship except God
I testify that Mohammed is the messenger of God
I testify that Mohammed is the messenger of God
Come to prayer!
Come to prayer!
Come to success!
Come to success!
God is great!
God is great!
There is no one worthy of worship except God.
These prayers are said 5 times a day. It is usually started in the morning, mid-day,
late-afternoon, sunset and night fall. These prayers can be derived from the Quran
which is in Arabic but a believer can recite it in his or her own language.
Finally, a Muslim is expected to worship with his fellow worshipers in the mosque
but sometimes a Muslim can worship anywhere so far as the place is conducive
for prayers.
5.8.3 Zakat
This primarily enumerates the financial obligation of every Muslim. Since it is
believed that everything owned by man belongs to God then man must hold every
wealth on behalf of God (in trust). Every Muslim must set aside a specified part of
his income for those in need and for the society in general. This part is the annual
payment of a fortieth of ones capital, excluding such items as primary residence
professional tools and car. A Muslim is also expected to give the Sadaqu-h which is
mostly referred to as charity. This can come in any form and quantity.
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5.8.5 Hajj
Every Muslim who is financially and physically capable of going to Mecca for the
hajj must go. Every year over two million people go to Mecca for the prayers. The 2
million spread among different countries and tribes creating a special opportunity
for people of different countries and tribe to meet.
Every hajj must start at the twelfth month i.e. the lunar of every Islamic year. In
Mecca every Muslim must wear white cloths which strip away distinctions of class
and culture; so that all stand equal before God. The rites of the Hajj starts with
going around the Kabah seven times, it also include going between the hills of
safa and marwa which was earlier performed by Hajir (Abrahams wife) during her
search for water. Later on the Muslim are expected to stand on the plains of Arafat
and join in prayer to God for forgiveness.
After the Hajj prayers, the Idal Adha starts. The Idal Adha is a celebration prayer
and exchange of gift among people of different tribes and countries. This festival
usually completes the visit to Mecca and everybody is expected to go home.
are to follow the juristic views of earlier jurist. However this has been clarified by
caliph Umar who stated that:
If you gave judgment yesterday; and today upon reconsideration come to
the correct opinion, you should not feel prevented by your first judgment
from retracting, for justice is primeval and it is better to retract than to
persist in error279
The argument in favour of the above view was express by Obilade when he said:
The question now arises whether there is a rule of precedent under
customary law. Although the idea of treating previous decisions with
respect and referring to them in deciding a dispute is not unknown to
customary courts, area courts or Sharia Court of Appeal to support the
view that there exists a system of precedent under customary law.
The case of Karimatu vs. Yakubu Paiko280 is a classic example where one of the
superior courts in Nigeria has neglected the idea that judicial precedent have no
place in Islamic law. In this case one major issue in dispute was whether a father
still has his right of Ijbar (i.e. a right to marry off his virgin daughter to whomever
he wishes). The court held that:
Where a father has given his virgin daughter the right to choose between
her two or more suitors, he has lost His power of Ijbar.
The problem with this case is that the Federal Court of Appeal of Kaduna Division
relied on the decision of a lower court i.e. the North Western State Sharia Court
of Appeal to partly arrive at its own decision. In essence the court relied on the
decision of a Sharia Court of Appeal to have the value or quality of serving as
precedent which the Niger State Sharia Court of Appeal should have followed or
considered.281
With great respect to the venerable law lords this decision cannot be supported
in principle. Firstly, the Federal Court of Appeal is not obligated to follow the
decision of a Sharia Court of Appeal. Secondly, a Court of Appeal is not supposed
to follow the doctrine of judicial precedent when handling Islamic law matters.
The Islamic wing of the Court of Appeal would have instead decided the case on
primary (Quran and Sunnah) and secondary sources of law instead of relying on
previous judgments of the Sharia Court of Appeal. The effect of this dangerous
279 Obilade A. Text Book of the Nigerian Legal System. p.114
280 unreported
281 Quaran 67.1
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Islamic jurisprudence
trend cannot be overestimated and it would simply mean turning the Islamic faith
upside down like was done in the Indo-Pakistani continent where English and
Islamic laws were fused which resulted in the creation of Anglo-Mohammedan law.
This is not Islamic law but is something different and unacceptable. Islam cannot
be diluted with English law. Islamic law is divine while English law is not. This
mean that Islamic law was made by God therefore no one except Allah can change
these laws.
293
or an autocratic ruler, but contrastingly, Allah does not have a tyrant trait. Allahs
command, as the supreme and ultimate sovereign is undoubtedly clothed with
positivism but does not lack justice as his totally just laws ensure the wellbeing
of mankind.
Law as canvassed by Austin has a restricted application. It is applied only to such
rules as are enforced by the power of the sovereign. Austins view is manifestly not
flexible for the intrinsic value of law rests in its idea of justice and morality and in
the manner of how it is applicable to the scheme of life. The all-embracing law of
Allah thus contrasts sharply with Austins positive law which is of a limited scope.
The merciful nature of Allah means in effect that his law cannot be of a totally
coercive nature. Admittedly, it is coercive in part and mainly aims to correct
while at the same time persuade. Serious offences like adultery, fornication,
highway robbery, murder, wine drinking and physical injury are met with severe
punishment to maintain peace and orderliness in the society. Otherwise Allahs
law gives room for repentance and for amendment in life.
The Almighty Allah is the general overseer of the entire universe and it is he who
lords over all creatures as a sovereign. Before Allah, all are equal and none enjoys
special rights over others.
Delegation of Allahs right of sovereign to a human being is possible. As a
consequence, the delegate, acting within the scope of such delegated authority,
will have the permission to command and prohibit and to make laws. In such
instances, and following simple agency rules, his command will be deemed as the
command of Allah and any attempt of not obeying him will automatically amount
to disobeying Allah, as it is aptly put in the Quran: Whosoever obeys the messenger
thereby obey Allah284.
Historically, all prophets of God have observed and enforced divine laws within
the ambit of the authority delegated to them, obeying them was mandatory for
their followers. Any act of disobedience will invite the wrath of God. The binding
authority of the prophets judgment is expressed in the following Quranic verses:
It is not for any believer, man or woman, when Allah and his messenger
have decreed a matter, to have a choice in the affair, whosoever disobeys
Allah and his messenger has gone astray into manifest error285
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Islamic jurisprudence
Prophet Muhammad during his life was a Sovereign and a lawgiver. His successors
were appointed to the office of Khalijah and Imamah to superintend over the
Muslim Umah. The successors equally had the right of sovereign and the authority
to legislate. The successor of the prophet did not only maintain the authority of
the Holy Quran and the Sunnah of the prophet but also retained the right to make
laws in accordance with specific conditions and events. Since he has authority, his
followers are mandated to obey him: O believers obey Allah and obey the messenger
and those in authority among you286
It is therefore fundamental to obey the command of the Caliphs and Imams of the
past and current Islamic states provided they are not in conflict with the divine
commands. Equally, they have the authority to make laws and regulation for
fulfillment of the different objectives of the state.
The next fundamental issue is to determine the role of ijtihad in an Islamic state. It
will be safe to reach a conclusion that there is no provision or room for legislation
(at least in the secular sense). This is because the enforceable laws in an Islamic
society must be in accordance with the fundamental principles of Islam and also
bearing in mind the fact that the Holy Quran and the Sunnah of the prophet. Any
other opinion expressed which contradicts the express teachings of the Quran and
Sunnah amounts to apostasy. The Quran renders as unbelievers persons who do
not judge according to what Allah has revealed287.
Controversy may not arise between a law and the akham of the Sharia.
Notwithstanding, what are referred to here are not the changing but the stable
laws of Islam, like those that concern Salat, Sawn, Zakat, Hajj (the ibadat)
personal laws like the alkham which is related to divorce, will, death, heredity,
birth, marriage, inheritance etc. The operation of legislation in such instances is
absolutely not permitted. However, where there is a void or lacuna created by the
Sharia (in not providing any law)), the lawmaker has the liberty to make laws to
govern such situations. The legislators licence and free-hand is limited to instances
where the legal rules have been hitherto based on social acceptability, social habits
and customs (urf), and exceptional demands of social welfare, or in instances
where the Sharia has conferred powers to others such as in the case of tazirat, or
matters regulating the affairs of the state, regulation related to state governance
and employment. The legislator in accordance with the general and fundamental
Islamic criteria, objectives and principles can make laws. This in effect means
that certain fixed Islamic rules and criteria that may be presumed as forming
286 Quran 4:59
287 Quran 5:44
295
the basic norm or fundamental law of Islam and other laws and regulations are
valid and acceptable only when they are not in conflict with such principles and
criteria like the duty to uphold justice. Legislation remains valid as long as it does
not contradict:
The obligation to pursue goodness and kindness and to desist from evil
and malicious things and
The obligation to support the downtrodden and to fight for the removal
of sedition, persecution (fitnah) and corruption (fasad).
Certain fixed and stable Islamic laws are not disturbed either by the elapsing of
time or as a result of alterations in the living conditions of life or on account of
dissimilarity in culture and society. However it takes only exigent and exceptional
circumstances to breach them. This is where the role of Ijtihad in legislation comes
to play. Any legislated law which negates them is taken as an affront against Allah.
There are equally the changing ahkam that varies in accordance with dynamic
circumstances. Herein lies the secret behind the everlasting nature of Islam, its
ability to sustain until the day of judgment, and its manner of adapting to changing
circumstances and conditions. It is the Sharia that gives the legislator the free-hand
to make laws and regulations respecting the welfare of the state or makes available
for him general guidelines.
The judges or legislators discretion to cover a wide range of punishment is another
example of the judges or legislators licence to operate freely.
The main role of ijtihad in law making is to make a distinction between the
unchanging and variable rules (ahkam). The task is not by any means easy because
of various mutashabihat (ambiguities) present.
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The components
The two components of Islamic law are: the divine and the human sources. The
divine aspect is made up of all that is found in the exhortations and laws which
Allah the Almighty has exposed to guide mankind. The Sunnah exemplifies those
exhortations principles and laws in reality by the prophet. These two form the
divine, unchanging component of the law. They are the law or the Sharia.
The human component on the other hand is made up of all the Muslim scholars
and Muslim generations in looking for the best means of applying the Sharia or
law proper to their comprehension and to their individual circumstances with
prompt regard to the human conditions, experience and changes (i.e. ijtihad).
The process is a continuous one and involved scholars and people at large and
aimed at ensuring that all generations of Muslim and all other conditions are made
to conform with the Sharia. Ijtihad been essentially a human effort and prone to
error is capable of changing and its binding effect is circumscribed by its reliance
to a given situation or a particular generation. Consequently, every age and every
fundamental alteration in human condition needs an ijtihad formulated by the
people belonging to that age or condition. In this regard, the law can be rightly
described as rigid and flexible, fixed and changeable: its principles are absolute
and, on the other hand, it makes provision for changing conditions and human
experiences in a continuous manner.
The law is only binding on those who believe in it; hence it is called Believers law.
Reliance on faith in real life is a pre-occupation of this law.
II)
The main aim of Islamic law is to regulate human conduct and to provide general
principles of life since every system of law is geared towards certain aims which it
seeks to execute.
Manufacturing a car or building a nuclear station does not form purpose of the law
as all issues that are primarily dependent on observation or experimentation or
inventions such as science and technology are exclusively left to human ingenuity.
It can therefore be deduced that the aim or purpose of Islamic law is to fix human
life on the basis of virtues and to purity of the vices. In Islamic law, the term
Maarufat represents all the virtues and good attributes that have generally been
297
298
Islamic jurisprudence
what is good and evil. The Quran aptly puts it: Blessed is he who sent down the
criterion of his servant, that it may be an admonition to all mankind289.
299
In Haliru Usman v Hajara Usman,290 the Court of Appeal stated that Islamic law
is a reasonable and rational law. It is organic and developmental. It grows with the
living society. It is humane and comprehensive. It takes care of the haves and the
have not. It outlaws high-handedness and oppression. It establishes justice for all
and sundry.291
Where an Islamic court is faced with divergent jurisprudential statements on a
principle of Islamic law, it is entitled to follow the theory of Talfiq (wide choice
of principles) which permits it to choose and apply a particular principle to arrive
at a just conclusion.292
Also in Rabiu v Amadu (supra), it was held by the Court of Appeal per MuntakaCoomassie, J.C.A:
However, it is settled that where there is a system, principle or
jurisprudential analysis, it is permitted in Islamic Law provided it does
not offend any principle of Islamic law What I mean is that if medical
report is prepared by a Muslim or any of the trusted Jews or Christians
based on the field of medicine then one can accept it and use it by the
authority of the Hadith.293
The cases clearly show the dynamic nature of Islamic law. It is stable but yet cannot
stand still. The dynamism associated with it ensures that the law moves with the
changing times and not stuck in a particular place. Law must change with the need
of the society. Since law was made for man, aligning law to suit and meet the many
aspirations of man is not out of place.
290
291
292
293
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In Platos The Republic, the supremacy of community over the individual was
manifestly exposed. This supremacy is so pronounced that it not only forbid private
rights but also not even any for private institutions such as property belonging to
the family. Even though these institutions are recognized they are still under the
control of the state. What really set apart Platos principles from that of modern
totalitarian system of government is the cultural orientation of Greek Civilization
and education.
To the Marxists, who strongly believe in modern totalitarianism, the community
remains supreme hence there should be the annihilation of individual rights. To
achieve this, judicial independence and separation of powers should be abolished
and the state must regulate all public and private sectors.
Synthesizing the liberty of an individual and the interest of the society is impossible
to attain unless the life of that society is built on uprightness. It is undoubted that
the society is an amalgam of individuals; the real issue is, to mould the character
of the individual in such a way that he contributes his quota to the welfare of
the society. Ethical norms of vices and virtues in Islamic law place emphasis on
how to acquire knowledge of ones duties to Allah and to society. The only means
to cultivate good qualities is by resorting to knowledge. Knowledge as a divine
quality commands precedent over the other divine attributes with which man has
to endure himself.
Acquiring knowledge (reportedly said by Prophet Muhammad) enables the
professor to make a distinction between what is right and wrong, it serves as an
effective weapon against foes and a vessel among friends. It is a source of happiness
because it guides us to that path. Allah uses knowledge to lift communities and
guide them in legitimate pursuit and give them good leadership.
The opportunity given to the individual in Islam is to build-up his personality for
the sole aim of being better placed to serve the interests of the society. Clash of
interest between the individual and the society will be eliminated since the society
is for the individual and the individual is for the society.
A society on emerging will be given a code of life known as the Sharia, and this
society must act in compliance with it by reason of the contract it entered. Any
Muslim society that uses other code or adopts other system of life other than the
Sharia, its contract is instantly breached and that society is no longer seen as an
Islamic society.
The rules of law and morality are both regulated by the Sharia and they are
both given by the Supreme Sovereign, Allah. The Sharia lays down instructions
for the control of our individual, as well as general life. These instructions (or
directives) affect all angles of human life such as habits religions, morals, family
relationships, economic and political affairs, rituals, international relations and
citizens. The directives touch on all aspects of human life. The directives guide
us as to knowing what is good or bad, what is injurious and harmful and what is
useful and beneficial, what virtues we are to nurture and cultivate, what is the limit
of our intentional, personal and social action and what different ways and means
we can subscribe to in order to set up such a dynamic order of society. The Sharia
represents a complete and comprehensive scheme of life and an all-encompassing
social system. The efficacious and smooth functioning of the Sharia can only be
guaranteed if the entire system of life is practiced in line with it and not doing
something different.
Islamic law as it is called today is only a component of an all-embracing scheme of
life. It is not independent in its existence as it can neither be comprehended nor
enforced on its own. To enforce it in an isolated manner would be in opposition to
the law-giver. The demand on us is to put into practice the whole Islamic program
of life and not just a fraction of it.
The Sharia scheme is broken into many fragments. Certain aspects of it do not
require any external influence for their enforcement; they are normally enforced
only by the ever-alive conscience ignited by his faith in a Muslim. Other parts are
enforced by the educational programmes of Islam aimed at training and solidifying
a mans character and the changing of his heart and his morals. The use of public
opinion to enforce certain other parts is also recognized and permitted. Some of
the fragmented parts have been made whole by the mores and the Conventions of
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Muslim society. However, a very large proportion of Islamic system of law requires
all the details and coercive powers and authority of the state for its enforcement.
To provide protection for the Islamic system of life from decay and perversion,
political power is fundamental. Political power is required to eliminate vices
and the establishment of virtue and for the execution of all these laws that need
punishment of the state and third arm of government for their effective operation.
From the above, it is therefore clear that those who take a swipe at Sharia do so
by only taking some provisions of the Islamic Penal Code out of their context and
ridicule them. But they fail to realize that those provisions are to be understood
within the entire Islamic system of life encompassing the political, economic,
educational and social spheres. Where these departments fail to work, then
those provisions of the Penal Code that have been isolated cannot be expected to
perform magic.
Islamic law for instance provides amputation of the hand as a penalty for the
offence of stealing. This however cannot work where in the society the rich or
wealthy do not pay zakat to the state and the state in turn fails to provide the basic
necessities of the needy and destitute. But if these things are provided, Islamic law
stipulates a serious punishment for those who are caught stealing, as their action
tend to show that they are not fit to live in an upright, generous and healthy society
and could cause unprecedented harm if not checked.
This is also applicable to the punishment attached to adultery and fornication.
Under Islamic law, unmarried partners caught in the act of fornication are to get a
hundred stripes, while those that are married who are caught in adultery are to be
stoned to death. However, this can only be implemented where marriage has been
made easy. It is also applicable to a society where every atom of lewdness has been
put away. It applies equally to a society where virtue, charity and piety hold sway.
These sanctions are not stipulated for that amorous society where persons are
openly encouraged to have concubines, where promiscuity is the order of the day
and where economic indicators and social morals have made marriage impossible.
It is the duty of the law to consolidate the moral teachings of education and
the objectives of education. The main aim of law should be similar to religious
morals and that of education. What is needed is to completely unify law, religious
morals and education. The erosion of religion is sure if there is failure on the part
of law to take a decisive and emphatic stand against those violating moral value
and standards.
303
Unifying human life with the universe informs the need of there being one
Supreme Sovereign and a common denominator of law for both the moral and
the physical spheres of human activity. Separating these two areas or sphere into
rigid compartments would likely lead to an irreconcilable controversy which will
ultimately spell doom not only for the individuals but even nations.
Islamic law clearly fuses law and morality. It is immoral generally speaking in law
to have an issue outside wedlock. In Islamic law, a child begotten out of wedlock
is not considered as legitimate under Islamic legal system and its paternity would
not be attached to the man who may have had an affair with its mother. This is
because the legitimacy of a child is wedlock. However, if the illicit relationship is
established, the parties involved would be sanctioned as appropriate under Islamic
Criminal law.294 Moral issues are not treated with kid gloves in Islamic law. For
instance, committing fornication, as mentioned earlier attracts 100 stripes. This is
aimed at deterring others who may have the proclivity to go into such.
In modern less religious societies where emphasis is on the economic, physical
and physiological aspects of life, it follows that the emotional, psychological, social
and spiritual factors, which were not clearly observable or precisely determined,
should not be taken into cognizance. Legislated laws that are totally different to
these aspects of life can wash away the basis of civilized life and become glaring if
one examined closely the swift deterioration of security of life and morality and
respect of citizens that are law abiding.
Law and morality are compatibly synthesized in justice in Islamic law. No conflict
arises between law and morality. It is the aim of the Islamic legal system to mould
individuals as well as the social behaviour that follows robust pattern so as to
guarantee peace and contentment.
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accordance with religious tenets and ensuring that there is no variation between
the applications of justice in one situation in comparison with another.
The Holy Quran contains a multiplicity of scriptures that make mention of the
term justice. This serves to explain the degree of importance placed on justice by
the adherents of the Islamic faith. Closely associated to justice is the concept of
injustice which arises where justice is not done. In effect, to do justice is to undo
injustice in Islam. The value placed on justice (and injustice by extension) in
Islam is seen in over two hundred admonitions against injustice and no less than
a hundred expressions embodying the notion of justice either directly or through
indirect expressions.
In relation to justice, the Holy Quran states thus:
Allah doth command you to render back your trusts to those to whom
they are due; and when ye judge between man and man that ye judge with
justice295
The importance placed on justice in Islamic jurisprudence is also seen in Quran
5:8 thus:
O ye who believe! Stand out firmly for Allah, as witnesses to fair dealing,
and let not the hatred of others to make you swerve to wrong and depart
from justice. Be just, that is next to piety. And fear Allah. For Allah is wellacquainted with all that ye do
With respect to injustice as distinct and separate from justice, the Quran states that:
Allah commands justice, the doing of good, and liberality to kith and
kin and He forbids all shameful deeds, and injustice and rebellion; He
instructs you, that ye may receive admonition.296
Followers of the Islamic faith are expected to pursue ideals which will lead to
justice as opposed to injustice. There should be no recourse to injustice by either
the judge or the parties to any disagreement. The Quran makes some specific
provisions on justice which were intended to cover certain classes of persons. For
instance, justice to women and orphans is regarded as part of the religion of Islam
and the fear of Allah.
The standard of justice applied in Islamic jurisprudence must at all times be an
objective one. There is no room for making decisions or delivering judgments on
295 Quran 4:58
296 Quran 16:90
305
the basis of whims or caprices of those that are to ensure justice. From Quran 5:8,
it is clear that even hatred against others should not be a bar to the administration
of justice. The essence of this objectivity is to give Moslem litigants the feeling that
justice has indeed been done in cases that affect them since they are rest assured
that the same decision would have been arrived at even in a different court.
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does not mean that it is an Islamic principle. For instance, when Kuwait changed
to a democracy, the world applauded this historic achievement until the Kuwait
women were disenfranchised during election.
The principles of justice are well emphasized in the Holy Quran and the Traditions.
It appears that after the belief in the existence of God, the quest for justice occupies
the second position with respect to virtues to be upheld by the Moslem faithful.
The rationale for this emphasis was based primarily on the disregard for justice
during the pre-Islamic era. To this end, there are numerous scriptures in the Holy
Quran which enjoin members of the Islamic faith to uphold the tenets of justice
and shun injustice.
To explain the meaning to be ascribed to the notions of justice contained in the
Holy Quran, the Prophet used specific examples aimed at distinguishing between
just and unjust acts. These explanations were expressed in the traditions in legal
and ethical terms and were also aimed at setting rules to establish what scale of
justice was to be applied. It was on the basis of these explanations and examples that
theologians and other Islamic scholars formulated theories of justice. Despite the
numerous provisions under the Holy Quran and the Traditions, neither of them
contains specific provisions that can determine the essential elements of justice or
how it can be achieved. In effect, what constitutes the parameters of justice is the
duty of the scholars who could arrive at their conclusion based on the different
source and rulings and acts that may be found in the works of commentators.
It is argued that Islamic justice is higher than other system of justice whether
Greek, Roman or any other human law. This indeed may be true as Islamic justice
searches the innermost recesses of the heart of man. All motives are examined
to see if they are in conformity with the principles of Islam. The Holy Quran
goes further:
It was we who created man, and we know what dark suggestions his soul
makes to him; for we are nearer to him than (his) jugular vein298
The meaning to be attached to this scripture is that Allah knows the innermost
desires and motives of man even better than man does himself. To be nearer to man
than his own jugular vein implies that Allah knows much more than man knows
of himself. As such, every act of man is examined not just on the surface but goes
deeper to determine what a mans motives are. A person will either be rewarded or
punished for his acts and this will depend on his motives. For instance, migration
is a good act and all believers are recommended to do so to save themselves and
298 Quran 50:16
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309
310
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311
commands that justice be done without fear or favour or any form of prejudice.
The multiplicity of the use of the term justice in the Holy Quran establishes it as
an integral component of Islam. As such, it should be done in accordance with the
Holy Quran.
Adjudication between litigants must be done justly in order to create a model
judicial system where litigants feel that justice has been done in their respective
cases. The model of justice set by the prophet is to be emulated by the Muslim
Ummah who are obliged to perform their duties in one accord with the divine
directives. The proper administration of justice under Islamic jurisprudence serves
to better the spiritual well being of humanity. Other moral and material benefits
also ensure to the advantage of all mankind.
The stress placed on justice under the Holy Quran and the Sunnah of the prophet
shows that the Islamic faith is strongly grounded in the principles of justice. The
Prophet lived a life that was an epitome of justice and all Muslims faithful are
expected to carry out their daily duties in similar fashion. The principles of justice
must be upheld under all circumstances in accordance with the Islamic law.
In addition to the scriptures in the Holy Quran, the traditions of the prophet
(Hadith) also emphasize the importance of justice which must comply with the
will of Allah. Due to the needs of the expanding Islamic community, reference
is also made to the Hadith of the prophet to supplement the Quranic legislation.
The Hadith consists of the prophets actions and utterances, witnessed by his
companions and transmitted by reliable authorities. Of the different traditions
relating to justice, one relates to the authority of Aisha where the Quraish tribe was
very concerned about the case of a woman belonging to the Makhzum branch that
had stolen something. Since the woman was from a noble tribe and home, Uaana
ibn Zard went to the prophet and spoke on her behalf. He asked that her hand not
be cut in accordance with Islamic legislation since she was from a noble family. In
reply, the prophet refused and decreed that there should be no discrimination in
the application of justice. The prophet further said that if Fatima, his (the prophets
daughter) should steal, her hand would also be cut off.
According to Umar the second Caliph of Islam, justice is to be administered in
pursuance to the primary sources of Sharia i.e. the Quran and the Sunnah. There
must be full equality of litigants in the eyes of the law. No highly placed person
should expect that judgment will be given in his favour neither should a weak
person feel that justice will not be done because of his station in life. Both rich and
poor must be treated equally under the law. This rule under the Islamic law obtains
similarly under the Western doctrine of the rule of law. However, a higher standard
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is demanded of a person administering justice under the Islamic law since justice
is rooted in both legality and morality. Litigants must understand the case that is
brought before them especially where there is no applicable text under the Quran
and Sunnah. In seeking justice, litigants must be guided by the will of Allah and
must not engage in acts which are against Islam. Umar the second caliph gave these
instructions to his judge Abu Musa Al-Ashari as a guide based on which he was
to dispense justice and any judge entrusted with this solemn duty must equally
follow these instructions.
On his part, Imam ShafiI of the Shafii school stated that the best way of
administering justice is one done according to the Hadith of the prophet. Justice
must not be administered in anger or when the judge is under emotional stress.
Anything that will impair the reasoning power of the judge must be avoided to
ensure that justice is done.
In administration of justice, no judge is to lead either the litigants or witnesses to
give answers which he (the judge) suggests. Such leading questions are prohibited
under the Islamic law as in the Western jurisprudence. The judge should not put
fear in the hearts of one of the parties nor should he take sides with the other. Justice
must be dispensed impartially to all persons concerned. Patience is also a virtue
which judges must possess and they are required to hear the testimony of both
parties with patience. At all times, the decisions arrived at must be in accordance
with the laws of God. This should be based on the principles of justice set out in
the Holy Quran and the Sunnah of the prophet. Where necessary, reliance may be
placed on the Ijtihad which is based on understanding by personal reasoning. In
the event that there is no available direct ruling, the Holy Quran and the Hadith
may be relied upon.
for the principles of justice without any form of bias. These duties are essentially
necessary as the preservation of the Ummah depends on their proper performance.
All decisions given by the quadi must be based on the principles of justice set out
in the Holy Quran, the Sunnah of the prophet and the Ijma (ie consensus of the
Muslim community). Where however, there are no express provisions dealing
with a particular case, the quadi may rely on the Ijthad but only as a last resort. The
quadi must also ensure that the proper legal procedure is followed in arriving at
the decision in a particular case.
In the administration of justice, both the substantive and procedural forms of the
Sharia law must be adhered to. This is a sine qua non for every Islamic state. The
general body of laws as well as the procedure for enforcing them must be complied
with as this will serve to ensure that justice is done in any particular case. Justice
is a sacred trust and must be imposed on people even where force is necessary.
According to the Holy Quran:
verily, we have sent out messengers with clear signs, and revealed with them Book and
the scale (of judgment) so that people may be firm in justice, and we provided iron
wherein is might power and many uses for mankind, and that Allah shall know who will
help him and his messengers in the unseen.
The importance of administering justice in its proper fashion should never be
underrated. Justice is a cardinal element under the Islamic jurisprudence and must
be properly administered by all persons in whom this sacred trust has been vested.
Islamic jurisprudence
315
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want to put you to complete the prescribed period, and to glorify him in
that he has guided you; and per chance ye shall be grateful304
From this scripture, it is clear that persons that are ill are exempted from fasting. This
includes the elderly and the chronically ill. These persons may either elect to make
up the days of fasting later when they are healthy or may feed those that are poor
as an alternative (Quran 2:184). Pregnant women, women during menstruation
and nursing mothers are also exempted from fasting during the Ramadan. Lastly
persons who have traveled for long distances may be exempted from fasting. In
either of these instances, the persons exempted from fasting may either make up
the days of fasting at a later time or feed the poor in place of their fasting.
The reason for mentioning the persons exempted from fasting during the Ramadan
is to highlight the flexible nature of Islam in certain respects. Obligations are
not imposed as punitive measures which must be adhered to regardless of the
prevailing situation. Islamic law is for the benefit of humanity and not to impose
far-reaching obligations which are impossible to achieve in all circumstances.
Despite these exemptions however, Muslims are to endeavor to fast during the
Ramadan if they can, as it is aimed at glorifying Allah.
With respect to the relaxation of the law in certain circumstances, the Holy Quran
sums it thus:
And strive in his cause as ye ought to strive, (with sincerity and under
discipline). He has chosen you, and has imposed no difficulties on you in
religion305
Procedural Justice
Procedural justice refers to the steps taken to ensure that substantive justice
is done. While substantive justice focuses on justice grounded in the specific
rights and duties available to a person, procedural justice provides practical
steps towards achieving justice as expressed in the specific rights and duties. For
procedural justice to be done in any case there must be a degree of regularity,
meticulousness and impartiality in the procedure adopted. Without procedural
justice, substantive justice will not be of any value since there will be no means of
its enforcement. As such, both aspects of justice have an intertwining relationship
whereby the existence of one depends on the other. The difference between them
304 Quran 2:185
305 Quran 22:78
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in procedure. Distinctions on judicial procedure also exist between the Sunni and
shii divisions of Islam. Due to these differences, the administration of justice in
different localities was necessarily different as there was no marked procedure
which persons were expected to follow.
The state of procedural justice at the time made the proper establishment of
substantive justice increasingly cumbersome. In the absence of a coherent system
grounded in uniformity litigants under different jurisdictions were bound to
arrive at decisions which could either be for or against them even though the
facts were similar. The judicial process was also not completely independent as
it was often subjected to political pressures from rules and men in high authority
who sought to interfere with the judicial procedure. To achieve this, qadis were
appointed and dismissed at will even though they were immune from political
pressures in principle. The lack of security in the tenure of the qadis gradually
ended the independence of the judiciary along with the belief of the people in the
judicial system.
In the modern era, some marked changes have taken place in judicial procedure.
These changes were predicted on the sovereignty acquired by some Muslim states.
As such, there is some degree of distinction between the judicial, legislative and
executive arms of government. By this separation of powers as well as the necessary
checks and balances necessary for the working of the system, the political pressures
encountered in the past have been reduced though not entirely. The independence
of the judiciary is necessary in both the attainment of substantive and procedural
justice in order to achieve legal justice as required under Islam.
Legal justice is of great necessity under the Islamic law. It is only through this
aspect of justice that rights can be established and punishments inflicted for the
performance of unjust acts. While other aspects of justice may have moral, ethical
or philosophical connotations, they are not binding on persons but only appeal to
them to endeavour to uphold these ideals. Legal justice provides certainty in the
law and every other species of justice to be binding must conform to its principles.
319
Rule of Law
Rule of law presupposes the smooth running of the three arms of government i.e
judiciary, executive and legislature. To ensure that the rule of law is upheld, the
independence of the judiciary must be guaranteed so that they will not bow to
political or other pressures. Under the Islamic law the concept of mashru iyyah
represents rule of law. According to Ladan, mashru iyyah in its jurisprudential
usage means the authoritative ground supporting the legality of any conduct. All
acts must be in conformity with mashru iyyah under Islam. Mashru iyyah does
not only mean supporting legal conduct but also categorizes the act of a person
into Fard, Haran and Mubah. While Fard refers to obligations whose omissions
are punishable by law, Haran deals with prohibitions whose commission is
punishable. Mubah on the other hand, simply refers to the permissible and regular
ways of doing things.
With respect to Fard, the Holy Quran using terse words in this regard simply states:
O ye who believe! Fulfill all obligations306
All obligations whether express or implied, must be honoured. Whether it is a
promise, a commercial or social contract, or even a contract of marriage, man is
expected to fulfill his obligations.
As regards haram, the Holy Quran says:
O ye who believe! Eat not up your property among yourselves in vanities,
but let there be amongst you traffic and trade by mutual good will307
Here, the prohibition is against waste of property held in trust for members of the
community or to people over whom one has control.
With respect to mubah, Quran 4:23-24 lists out different classes of women from
whom it is prohibited to marry from. Except for these, all others are lawful (Quran
4:24). Any woman who does not fall within the prohibited class may be married
and any man who marries them may be said to be acting according to the mubah
ie permissible acts.
The concept of mushrul iyyah embodies necessary ingredients for the
entrenchment of the rule of law. Once obligations are performed and prohibitions
are refrained from, it will of necessity give rise to the establishment of justice. At
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all times, persons are expected to conduct themselves within the acts permitted
under the Islamic law.
Fair Hearing
The concept of fair learning is a key element under the rule of law. In fact, the
Latin maxims which express the principles of natural justice (audi alterem patem
and nemo judex in causa sua) are equally rooted in the concept of fair hearing.
No person should be punished without first having his case heard by a court of
competent jurisdiction. Similarly, a person should not be a judge in his own cause.
The concept of fair hearing has assumed the character of fundamental human
rights and each person is entitled to a fair trial.
Under Islamic law, the concept of fair hearing has its roots in the origin of mankind
when Adam and his wife Hauwa dwelt in the Garden. This story bears striking
similarities with the Biblical story of Adam and Eve. In the Islamic context,
Prophet Adam and his wife Hauwa were instructed by Allah not to eat the fruit of
a particular tree but were allowed to eat from all other trees. They were deceived
by Satan and ate of the tree. Even though Allah is all knowing, He still gave them
the opportunity of defending themselves. This indeed is in the true spirit of the
concept of fair hearing.
In narrating the story, the Holy Quran records:
O Adam! Dwell thou and thy wife in the Garden. And eat of the bountiful
things therein as (where and when) ye will, but approach not this tree or ye
run into harm and transgression.308
Despite this express command, Adam and Hauwa tasted of the tree due to Satans
deceit. When they had tasted of the tree, their shame became manifest to them
and they began to sew together the leaves of the Garden over their bodies. (Quran
7:22). Adam and Hauwa were given the opportunity to defend themselves and in
their confession they said:
Our Lord! We have wronged our own souls: if thou forgive us not and
bestow not upon us thy mercy, we shall certainly be lost.309
It was only after this confession that Adam and Hauwa were sentenced. This story
shows that even in a case where guilt is certain, opportunity must still be given for
the accused own side of the story to be heard.
308 Quran 2:35
309 Quran 7:23
321
In the case of ALHAJI v. MAJI,310 the issue of fair hearing was the central issue.
The facts are that the appellant claimed title to a farmland and that he had been in
occupation for almost 50 years. On the other hand, the respondents asserted that
the disputed land belonged to their grandfather. At the trial court, only one of the
three witnesses called by the appellant testified. Before the other two were called
upon, judgment was delivered in favour of the respondent.
The appellant appealed against the Upper Area courts decision. He further
appealed to the High Court which similarly affirmed the decision. Dissatisfied, the
appellant applied to the court of Appeal for extension of time to seek leave to appeal
amongst others. In response, the respondents raised a preliminary objection to the
hearing of the appellants appeal on the grounds that the appellants application
was defective.
In a unanimous decision, the Court of Appeal allowed the appeal and ordered a
retrial of the case by the Upper Area Court. In the words of Muhammad J.C.A who
delivered the lead judgment:
The principle of fair hearing as provided by Islamic law is not any different
from the above postulations by the Federal Constitution and the Common
law.311
Muhammad J.C.A went further to quote the Jawahi Alikali vol. III pages 199-200
as follows:
The Judge shall not deliver any judgment against any of the contending
parties until he hears to completion the claim of the plaintiff. If the plaintiff
has finished stating his claim, then the Judge will ask the defendant to state
the true position of the claims against him. If he admits the claims as stated
by the plaintiff, that is the end of it. But if he denies them the plaintiff has
to lead evidence to establish his claim.
The learned justice utilized several other authoritative works as well as Quranic
verses on fair hearing before arriving at his decision. In concurring with Muhamad
J.C.A, the learned Justice Obadina quoting the Supreme Court decision on fair
learning in the Military Governor of Imo State v.Chief B.A.S Nwauwa312 stated thus:
322
Islamic jurisprudence
A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the
opportunity to be heard, present his case or call witnesses.313
In the decided case of SAFETI V. SAFETI314 the Court of Appeal per Muhammad
JCA on the constituents of fair hearing under Islamic law held that part of what
makes a hearing fair under Sharia law is the opportunity afforded by the parties to
cross-examine witnesses who testify.
Fair hearing in Islamic law represents a cardinal principle which must be upheld by
the judges or qadi in the cases that come before them. It is a necessary element for
the enthronement of legal justice in Islam. Without fair hearing, injustice will no
doubt be occasioned. Islamic law is against anything that perpetuates injustice and
so all persons are expected to uphold the principles of fair hearing to guarantee the
establishment of justice in all respects.
Equality before the Law
In Islam, everyone is equal before God. There is no distinction between persons
under conditions of freedom. Whether male or female, all persons are equal. In
Quran 33:35; forgiveness and great reward has been prepared for Muslim men and
women. Despite the equality available under Islam, the Quran does not fail to
consider forms of social inequalities that exist particularly between the rich and
the poor.
In the administration of justice, Islam does not recognize that one person has more
rights than the other. There is no one that is above the law since it is a supreme
command from God that must be obeyed by all. As such, all persons whether rich
or poor, of whatever race, colour, region or religion are equal before the law, even
where it is shown that a Muslim has acted unjustly against a Jew or someone of any
other religion, judgment will not be given in favour of the Muslim.
In the case of the woman from the Makhzum branch who had committed theft,
Usama bin Zaid spoke on her behalf that her hand should not be cut off since
she was from a noble family. In response, the prophet said that even if Fatima his
daughter stole, her hand would equally be cut off. This statement by the prophet
shows that the high social standing in which one finds himself has no bearing
on the administration of justice. Judges should thus ensure that they make no
distinctions when administering justice.
313 Supra at p 709
314 (2007) 2 NWLR (pt 1017) 56 C.A
323
In another instance, showing equality before the law, Mansour the Abbasid Caliph,
hired some camels to attend the Hajj. When he returned, he gave several excuses
to avoid repaying the hire. The camel drivers who had hired out the camels took
the Caliph to court. The judge after hearing the evidence compelled the Caliph
to pay the camel drivers what he owed them. This case was not decided by the
prophet but the principles taught by him were adhered to by the judge in this case.
There is no social stratification when it comes to the administration of legal
justice in Islam. Even where it is against an enemy, justice must be guaranteed by
treating such persons equally before the law. In this regard, the Quran commands
persons thus:
let not the hatred of others to you make you swerve to wrong and
depart from justice... (Quran 5:8)
Even where persons are related, they must not follow the lusts of their hearts to
alter the course of justice. All persons must be treated equally before the law as this
will serve to increase the trust reposed in the judicial system as an instrument for
the proper administration of justice.
324
Islamic jurisprudence
325
326
Islamic jurisprudence
paradoxes which did not only give room for the germination of political and
administrative programme but also spread through the gamut of our jurisprudence
in the colonial era. This is the origin of the statutory tests of enforceability which
for some unexplained reasons still decorate our statutes governing the recognition
and application of customary law.
327
328
Islamic jurisprudence
329
Islamic law is not the same as customary law as it does not belong to any
particular tribe. It is a complete system of universal law, more certain and
permanent and more universal than the English Common Law328
The 1999 Nigerian Constitution in sections 250-264 and 279 have given strength
to the statement of the Supreme Court (supra) by making distinct and separate
provisions to regulate both customary and Islamic laws. If for any reason any
statutory enactment attempts to abolish the distinction established between
the two laws, then, by virtue of section 1(1) and (3) of the Constitution, the
distinction becomes null and is invalidated to the extent of its inconsistency with
our grund norm.
In the final analysis, Islamic law should be accorded its respect in the Nigerian legal
system. This is because it promotes and cleanses human conduct, restores serenity
and harmony among people and foster unity and cohesion to human life.
Islamic law should not be confined to civil matters only as this could cause
irreparable damage and present a very comfortable ground for its eventual demise.
A very topical issue ripe for consideration is the justification for creating the
enabling environment for the application of Islamic law disregarding its nature and
modus operandi. This obviously will not speak well of Islamic law nor for persons
who will apply it.
The Nigerian Constitution has taken a bold initiative in this direction by providing
that for a person to be qualified to be appointed as a Kadi of a State Sharia Court
of Appeal and Grand-Kadi of a state, such a person must be a legal practitioner in
Nigeria with not less than ten years experience in the practice of Islamic law and
has a recognized qualification in Islamic law from an approved institution by the
state Judicial Service Commission329.
The criteria above duly recognize the experience and academic strength of the
qualified persons. Such persons are recognized only on the ground of merit. Their
level of experience and knowledge keep them in good stead to appreciate the
values which Islamic law stands for.
The onus is now on the Judges of the Sharia Court of Appeal to really nurture
the rules of Islamic law in full compliance with the tenet and spirit of the Quran
and Ahadith and utilize this chance to make right all the misrepresentations,
distortions and the wrong applications of Islamic law that was done before now.
328 Ibid per Bashir Wali JSC at p.136
329 1999 Nigerian Constitution, Section 261(3)
330
Islamic jurisprudence
331
In the words of Maududi, in his work titled Islamic Law and Constitution
translated and edited by Kurshid Ahmad:331
When we say that this country should have an Islamic Constitution,
we do not mean that we possess a Constitution of the Islamic State in a
written form and that the only thing that is required to be done is to enforce
it. The core of the problem is that we want an unwritten Constitution to be
transformed into a written one.
In the light of the above and by reason of the fundamental Islamic belief that Allah
is the only sovereign and supreme law-giver, it would be noted therefore that
Islamic Constitution is in reality an unwritten Constitution. It is unwritten because
it is contained in different, separate sources. It is from these separate sources that
Constitutional rules are evolved or derived. The task for many Islamic states is to
evolve a written Constitution from these sources in keeping with the present-day
requirements of an Islamic state.
The concept of Constitutionalism applies in Islamic law because in the Moslem
community (or State), both the government (governor) and the governed are to
rule, govern or live by and in accordance with Islamic rules as contained in the
many sources of the Islamic law. An Islamic government is limited by the unwritten
Islamic Constitution as contained both in the primary and secondary sources of
the Islamic law.
332
Islamic jurisprudence
State
(Quran 33:72)
Sovereignty -
(Quran 12:40)
Government -
Citizenship -
(Quran 8:72)
(Quran 4:1)
333
Consultation -
(Quran 42:32)
Righteousness -
(Quran 2:17)
The above constitute the molding block on which the unwritten Islamic
Constitution is based. They form the organic, fundamental and the cardinal
essence of the machinery and main organs of government forming the core of the
Islamic Constitutional theory.
Islamic jurisprudence
any written law was made. The only thing is that Constitutional law only comes
to develop or sanction that which was already in existence giving us clue that a
higher power more than us operates in the Constitution (coming together) of a
State before the actual written document Constitution is made whether written
or unwritten.
It is submitted therefore that in Islamic Constitutional theory, neither the State
nor the people are sovereign as obtains in the Western ideology of secular State.
Absolute sovereignty belongs to Allah. Islam posits that sovereignty is the exclusive
preserve of God and no human being can validly claim it because all humans are
subject to supervision and are accountable to the people one way or the other. The
State is not sovereign, neither the people because they are subject to supervision
or accountability. Only Allah is the uncommanded commander. They would
claim, in the entire creation, there is no creature that can claim the attributes of
sovereignty, certainly not any human being or group of human beings. Allah is the
only omnipotent: He can do whatever He likes;332 He does not refer to any one or
render account to any one;333 He is the source and fount of all authority;334 He is
the only one whose authority and power can limit or restrain;335 and He alone is
above all aberration and error.336
The earthly State is thus an instrument improvised by man to respond to the
basic human need of organizing mankind to the end that they co-ordinate their
activities with a view to establishing order on earth. It is not to apportion to man
any sovereignty because he does not have it in the first place. The earthly state also
establishes conditions for securing the realization of the goals for which mankind
has been created.
Every Islamic State is, in political parlance, a reflection of the way in which the
Muslim ideal has to be realized on earth. However, this ideal has not been realized
for many reasons stated below.
Quran 11:107
Quran 21:23
Quran 23:83
Quran 23:28
Quran 59:23-24
335
could be seen that the Islamic ideology of statehood only exist in theory and pages
of works of Doctors of Law rather than in practice. The fundamental reasoning
for this is that Islam sees the entire universe as a State under the sovereignty of
Almighty Allah alone. This means, the entire Universe ought to have a single
leadership under Islam which has not been possible which is why, they argue, it
has not been possible to bring the Islamic theory of single State into practice.
The obvious deviation from the Islamic Constitutional theory has been attributed
to many conflicting reasoning. First, Moslem scholars have contended that many
States conquered through the notorious Islamic jihad and the Islamic concept of
Holy War could not keep the religion pure as required. Most conquered people
therefore adapted the faith to their cultural, racial or regional ideologies.
Secondly, they also argue the influence of other religions especially Christianity
has also affected the Islamic faith since many States are made up of Christians.
Thirdly, they argue that since the whole world has not accepted the faith, Muslim
psychology and feeling is that the world is not ripe yet for the enthronement
of a universal State under Islam where the Islamic theory could be practically
inaugurated. They contend, the best for now is to wait till such time when the
entire world will accept Islamic faith and Islam will take over the whole world in a
universal government.
They also maintain that the pressure and influence of enlightened and immoral
designs of some authoritarian and dictatorial regimes which are seen operating
in the world of Islam contribute to the deviation from the ideal Islamic polity.
Some of these are people who have fallen from the faith having been intoxicated
by power.
In the final analysis, the scholars argue that the falling away and switching off from
the high standard of political probity and Islamic ideology of Constitutionalism
are attributable to the grammar of the human mode of comprehending the import
of Divine Word or instruction. That is to say, the interplay of relativity and the
normal friction in the physical world are principal reasons for the deviation. In
other words, there also exists the problem of understanding.
It would be concluded here that Muslim political theory down the ages has
rested upon the ideal of a universal Muslim community or Ummah, united under
a common caliph as a ruler, while the actual state of affairs in Islam has steadily
moved away from that ideal. The Ummah has splintered into a vast variety of
denominations, schism, fundamentalists or liberals and much more even the stance
of the political power in the Muslim world, has, to say the least, been vagrant. Also,
336
Islamic jurisprudence
the unity of the faith is now diffused into the practical realities in most conquered
States which has brought their cultural beliefs and customs into the faith.
1. Pakistan
Topic
Article
Concept of
Sovereignty
Preamble
Para. 1
Nature of
State
Article 1(1)
Fundamental
Principles
Preamble
Para. 4
Supreme Law
Preamble
Para. 5
337
Topic
Article
Article 2
Religion of
State
Article 2
System of
Syura
Article 50
Article
51(1)
Article 62
338
Preamble
Para 6
Islamic jurisprudence
Topic
Article
Article
51(2A)
Christians
Hindus and persons belonging to the
Scheduled castes
Sikh, Budhist and Parsi communities and
other non-Muslims
Persons belonging to the Quadiani
group or the Lahori group (who call
themselves Ahmadis)
Adoption of
Islamic Laws
Article
227(3)
Article
31(1)
Article
31(2)
Article
227(1)
339
Topic
Article
Article
228(1)
Article 229
Article
230(1)
Islamic jurisprudence
Topic
Article
2. Iran
Topic
Article
Concept of
Sovereignty
Article
2(1)
Nature of
State
Article 1
Fundamental
Principles
Article 2
341
Topic
Article
Article
2(2)
Religion of
State
Article 12
342
Islamic jurisprudence
Topic
Article
System of
Syura
Article 7
Article 91
343
Article 13
Topic
Article
Position
and Right of
Minorities
Article 64
Adoption of
Islamic Laws
Article 4
Article 72
344
Islamic jurisprudence
3. Saudi Arabia
Topic
Article
Concept of
Sovereignty
Article 1
Nature of
State
Article 1
Article
5(a)
Fundamental
Principles
Article 8
Supreme Law
Article 1
Article 7
Article 45
Religion of
State
Article 1
System of
Syura
Article 68
345
Topic
Article
Article 69
Position
and Right of
Minorities
Article 26
Adoption of
Islamic Laws
Article 23
Article 48
Topic
Article
Concept of
Sovereignty
Article 4
Nature of
State
Article 1
4. Sudan
346
Islamic jurisprudence
Topic
Article
Fundamental
Principles
Article 2
Supreme
Law
Article 65
Religion of
State
Article 1
Article 18
Article 2
Article 67
System of
Syura
347
Topic
Article
Position
and Right of
Minorities
Article 27
Adoption of
Islamic Laws
Article 10
Article 18
Topic
Article
Concept of
Sovereignty
Article 3
Nature of
State
Article 1
5. Egypt
348
Islamic jurisprudence
Topic
Article
Fundamental
Principles
Article 5
Article 4
Article 2
Article 64
Article 2
Article 19
Article 46
Article 86
Supreme
Law
Religion of
State
System of
Syura
349
Topic
Article
Article 87
Article
194
Article
196
Article 40
Adoption of
Islamic Laws
Article 11
350
Islamic jurisprudence
6. Tunisia
Topic
Article
Concept of
Sovereignty
Article 3
Nature of
State
Article 1
Fundamental
Principles
Preamble
Article 1
Topic
Article
Article 5
Article 18
Article 19
Position
and Right of
Minorities
Article 6
Adoption of
Islamic Laws
System of
Syura
7. Morocco
Topic
Article
Concept of
Sovereignty
Article 2
Article 19
352
Islamic jurisprudence
Topic
Article
Nature of
State
Preamble
Para. 1
Article 1
Fundamental
Principles
Supreme Law
Article 4
Religion of
State
Article 6
System of
Syura
Article 36
Position
and Right of
Minorities
Adoption of
Islamic Laws
Article 106
353
FURTHER READING/REFERENCE
1.
The Holy Quran edited by Abdullah Yusuf Ali XVII (Commentaries on the
Quran).
2.
3. The meaning of the Holy Quaran Abdullah Yusuf Ali (New Edition with
Revised Translation, Commentary and Newly Compiled Comprehensive
Index) p. XVI
4.
5.
6.
7.
8.
354
Chapter Six
have been made by the National Assembly. In the same token, S. 6(1) & (6) (a)
& (b) of the Nigerian Constitution prescribes a duty on the judiciary to interpret
the laws and adjudicate on disputes between aggrieved parties in Nigeria. In the
exercise of his adjudicatory powers as enshrined in the Constitution, a judge by S.
36 (1) of the Constitution has the duty to be fair and impartial in the discharge of
this duty. In the law of torts, the law provides for the duty of care which is a legal
relationship arising from a standard of care, the violation of which subjects the
actor to liability.
Again, in insurance law, the duty of good faith is commonly implied in insurance
contracts usually against the insurer regarding matters such as the insurers
obligation to settle reasonable demands that are within the policys coverage.
This duty is implied in some contractual relationships, requiring the parties to
deal with each other fairly, so that neither prohibits the other from realizing the
agreements benefits.
In summary, a legal duty therefore could be described as an obligation the
breach of which would be a legal wrong such as the duty of parents to provide
necessaries for their children prescribed in Nigerian criminal law. Some duties are
naturally acquired through nature as a man or woman or attainment of certain
age like in Nigeria where the age of maturity is 18, some duties are also created
through contractual agreements. Similarly some duties are also imposed by
law, which requires parents or parents in loco parentis to look after the minors.
Legal duties could be imposed on individual, group of persons, institutions,
including international organizations that could be jointly or severally liable
for acts or omission. The list can be inexhaustible however this book deals with
jurisprudential analysis of duties only.
2. Moral Duties
These are duties the breach of which would be a moral wrong. They include
obligations, actions, functions, tasks or observations imposed or prescribed not
by any law but by the acceptable standards of dealing or morality or expectations
operative and upheld in a society. These are duties expected of any member of a
society. For instance, the duty to keep ones promises is a moral obligation which
may have informed the formulation of the rules of contract that necessitates
its binding nature. The duty to always tell the truth and avoid telling lies in
circumstances requiring truth to be told is a moral obligation upheld in any decent
society. These are sanctioned by the court of conscience and public opinion.
357
There is a social duty amongst some Nigerian tribes to offer kola as a sign
of welcoming visitors. There is a social duty to assist accident victims or a
drowning man.
3. Religious Duty
Christians have the religious duty to pay one-tenth (1/10th) of their produce or
net-income to God to be called tithe in Christian parlance. There is a religious
duty on Catholics to go to church on Sunday. There are religious duties on Muslim
faithful to pray five times a day, give alms to the needy and fast during the month
of Ramadan etc.
The above duties can be summed up as duties to man and duties to God. The
concept of duties could be made clearer by the following quotations:
There is a duty if the court says there is a duty; the law, like the Constitution,
is what we make it. Duty is only a word with which we state our conclusion
that there is or is not to be liability many facts interplay; the hand of
history, our ideas of morals and justice, the convenience of administration
of the rule and our social ideas as to where loss should fall337
A classic English definition of duty from the late nineteenth century holds that,
when circumstances place one individual in such a position with regard to another
persons of ordinary sense would recognize the danger of injury to the other if
ordinary skill and care were not used, a duty arises to use ordinary skill and care
to avoid the injury.338
358
money laundering, advanced fee fraud, counterfeiting, contract scam and all other
financial crimes. The common good which this Act seeks to secure for Nigeria
and Nigerians is to discourage and stamp out to the barest minimum all forms
of economic crimes in order for funds to be available for execution of economic
programmes, social services, wealth creation programmes, social security,
food security, critical infrastructural development, industrial advancement,
diversification and deepening of our presently monocultural economy for the
general benefit of all Nigerians. These duties are imposed on the Economic and
Financial Crimes Commission for the benefit of all Nigerians.
Again, there is a common good of every society to ensure peace and orderly change
of its leadership (i.e. government) in order to avert the likelihood of chaos, anarchy
or lawlessness. The society thus set rules and procedure to be followed and place
duties on all or specific persons in order to achieve a smooth and peaceful change
of government. In line with this common good, the Nigerian State enacted the
Electoral Act in 2006 (now Electoral Act 2010) which impose certain duties on the
Independent National Electoral Commission (INEC) to regulate the conduct of
federal, state and local government elections as a follow up to the Constitutional
duty placed on all citizens to participate (vote and/or be voted for) in elections.
The point being laid to rest here is that legislation is an embodiment of general or
specific duties for enhancing and preserving a societys common good.
Again, it is self-evident that even decisions of courts are pronouncements requiring
a person or group of persons, an institution or organizations, or even Government
to do or to refrain from doing a particular thing for the benefit of either party to a
dispute brought before the court for adjudication. Thus, court judgments embody
specific duties imposed on either party which they must adhere to strictly.
It is necessary to state here that there will be chaos were value is not placed on
certain basic human good and specific duties imposed on persons to act or behave
in certain ways in order to promote, preserve and entrench such common good. For
instance, a society has no claim to a civilized existence if it fails to protect life and
property of its members. Thus, it is pursuant to this right to life and/or property
that rules of murder manslaughter or stealing are enacted into most countrys
criminal law system which in essence places both a positive duty to do all that is
reasonable to protect the life of another person and the negative or passive duty to
refrain from acts capable of taking or endangering the life of another person.
Section 33(1) of the Constitution of the Federal Republic of Nigeria 1999 provides:
Every person has a right to life and No one shall be Deprived intentionally of his life
save in execution of the sentence of a court in respect of criminal offence which he has
361
been found guilty in Nigeria. The purport of this provision is that there is a common
good which is the security of life. Immediately flowing from this common good is
the passive duty placed on all to abstain from willfully taking or doing something
capable of endangering the life of other persons.
Again, a further dissection of the section reveals another common good which is the
recognition of the fact that in every society there must be a system of punishment
of offenders to serve as deterrent to others and also to protect public safety by
removing dangerous and evil persons (e.g. serial killers). Based on this common
good, the section recognizes the duty placed on the courts and judges to adjudicate
and give sentence in execution of which the life of a person may be taken. This is in
order to deter people with criminal tendencies and reduce the crime wave in the
society. This is also in line with S. 45 of the 1999 Constitution which provides for
curtailment, limitation, restriction and/or derogation from fundamental human
rights in the interest of public safety, public security, public health, public morality,
period of emergence, etc. It was the inimitable Lord Denning M.R. who stated
that there are certain circumstances where the interest and/or rights of individuals
will have to take a second place for the sake of public interest. In decided case,
the court stated that though the right to privacy is guaranteed, where the police
suspect the commission of crime or conspiracy to commit one, the police can
invade the privacy of individuals by tapping their telephone. Thus their privacy
can be invaded for the purpose of protecting public interest in order to apprehend
and/or nip crime in the bud.
This is also why the lives of persons are also taken in execution of sentence of a
court by the hangman or by firing squad as the case may be. Thus, there is no
absolute right without limitation in order to secure law and order in the society
for as it is often said ones right stops where anothers right begins. This is why
even if there is freedom of movement, one can only move his car where there is a
motorable road/way and/or space. One cannot just go driving his car and hitting
other peoples cars or knocking pedestrians in the pedestrian lane simply because
he has freedom to move.
Also the right to freedom of expression and the press is subject to and curtailed by
the rules of defamation.
In the final analysis, the point to take home is that once we have identified the
forms of human good and its practical requirements, such human good or norm
(e.g. that which forbids murder) becomes established in the society, the existence
or establishment of such human good or norm is followed immediately by a
corresponding duty (e.g. not to murder). Thus, human good (common good)
362
363
364
the case of Adegoke Motors vs. Adesanya342 that: We are final not because we
are infallible; rather we are infallible because we are final. Justices of this court are
human beings, capable of erring.
That is to say its infallibility is an index only of its finality and not necessarily its
infallibility. In other words, the people who sit at the Supreme Court as justices
are humans with inherent imperfections and limitations whose decisions are
only final because the Supreme Court is the terminus or final court of appeal
in the Nigerian legal system. Any further appeal could be made to the court of
heaven. In essence, judges are permitted to err and no sanction is attached except
appeal which terminates at the Supreme Court, the apex court. It is in this line of
thought that it becomes inevitable to note that in many legal systems, a judge is not
prosecuted or convicted for wrongly, or even maliciously, acquitting or convicting,
or for imposing a more severe sentence than the maximum provided by the law for
a specific offence.343
In this scenario, the consequence of the argument of the protagonists of sanction
theory of duty would mean that since no sanction is attached, then the necessary
conclusion would be the palpably erroneous and misleading that a judge has no
legal duty to adjudicate or decide according to law. This is, without controversy,
an erroneous conclusion founded on an originally faulty premise and one that is
grossly against the universal juristic and/or juridical usage.
There is no doubt that it is proper and common to say that judges have a legal duty
to apply the law in deciding the disputes brought before them. The justification for
the phrase legal duty simply refers to a duty or obligation imposed by the law.
366
of rights and/or duties in accordance with the rules of the legal system. A person
therefore is an entity that can sue and be sued.
Historical Reflections
Historically, the term person meant a mask, then, the character in a thing,
someone who represents a character, a representative in general including the
representative of a church etc. It is evident that the term did not even in its original
state refer to a subject or a function. Human individuals are among the chief social
units or entities that pre-existed in law and society. The legal concept of a human
being is simply a multitude of claims, duties, privileges, etc treated as a unity and
generally, there is thus no distinction in law between natural and legal persons.
This means in effect that every natural person is a legal person because the
definition or delimitation of individual in a juristic relation remains the very focus
of law or legality.344
In the light of the above, once a child is born, it is a person and becomes the focus
of a host of juristic relations, rights, entitlements, privileges, immunities, and
then duties, obligation or responsibilities. A human being ceases to be a person
at law upon his death but it continues in certain respects such as succession and
testamentary disposition by which the wishes of the deceased as to the disposal
of his property are given effects. The criminal law protects his body and ensures a
decent burial for his body, while the law of criminal libel protects his reputation
but only to the extent to which that affects living persons. A legal action against
him and most predominantly civil cases, which pertains to monetary demands,
etc, could be instituted or continued against his estate.
It must be stated here that the term person in being ascribed to an individual lays
great emphasis on capacity, i.e. a mind, a will and ability for acting purposively.345
367
347
348
349
350
368
1. Natural Persons
As already discussed earlier, natural persons are, simply put human beings or the
body of a living person. In the era of subhuman trade, slaves were, in some legal
systems, incapable of rights and liabilities and were devoid of legal personality.
They were treated as mere chattels and mere objects of rights. In some systems
also, a monk who entered a monastery was treated as being civilly dead and his
property was distributed as if he were dead. Some States in the USA have statutes
dealing with civil death. For instance, in New York, a person imprisoned for life by
statute was regarded as civilly dead.
However, it is a worthy and a happy step that most modern legal system with
claim to human civilization recognize the legal personality of every human being,
irrespective of whether he or she is a slave-born or not, has a will or not. Thus, a
one-day-old baby may lack a will but nonetheless a legal person. Though an idiot,
imbecile or an insane person may lack any appreciable will of his own, he is still a
legal person. In each case, the law permits an agent to exercise the will for him. For
instance, the Nigerian Uniform High Court Civil Procedure Rules provides that
an infant can sue through his next friend.
a.) The Legal personality of Unborn Persons
In most legal systems, legal personality begins with birth and ends at death.
The Romans held that, to be a legal person, a child must have been completely
separated from the mother and it must have lived after complete separation though
the duration of life did not matter.
The French and some other civil codes, following the Romans, required that the
child be born alive and be viable. The Spanish civil code requires that a child
should live for twenty-four hours to establish viability The German and Swiss
codes require only that the child be born alive. Nigerian Criminal law follows
English common law on this matter; a child in the womb is not a legal person in
English law. Complete extrusion from the mothers body is necessary to constitute
the child a legal person. There is also the requirement that the child must have had
an independent circulatory system even though the umbilical cord has not been
severed.351
Under the Nigerian Criminal Law, S. 301 of the Criminal Code defines when a
child becomes a human being. It provides that a child becomes a person capable
of being killed when it has completely proceeded in a living state from the body of
351 Elliot vs. Joicey (1935) AC. 209 at 238.
369
its mother, whether it has breathed or not, and whether the navel string is severed
or not.
To destroy a child in the womb before it is born is not murder of the child who
is not a legal person. However, this may be an offence under section 328 of the
Criminal Code punishable by life imprisonment. It should be noted that, under
section 297 of the Criminal Code, it may be lawful in certain circumstances to
destroy an unborn child for the preservation of its mothers life.
Again, section 309 of the Criminal Code provides that if a child is born alive and
then dies subsequently as a result of an act or omission done before or during its
birth, the person who does the act or makes the omission is deemed to have killed
it.352
b.) The Legal personality of Dead Persons
The question here is whether upon death, a human person could still be seen in
law as a person. It is trite law that legal personality for a natural person ends at
death. In the same vein, legal personality of non-natural persons like companies
are brought to an end by operation of the law via winding-up having the same legal
effect of a dead natural person. Salmond said: Dead men are no longer of rights as of
liabilities. A dead man does not own anything, not even his body, though testamentary
directions by him as to the disposal of his body cannot be denied legal effect.353 The
reasoning for this is that a Will speaks from death. Once the testator gives up the
ghost the Will or testament begins to speak. A Will is irreversible and cannot be
altered on the death of the testator.
In English law, there is neither civil nor criminal liability for defaming the dead. In
the notorious case of R. vs. Ensor,354 it was held that to libel the dead is not an
offence known to English Law. The dead therefore has no rights and can suffer no
wrong save the testamentary right to have their testamentary dispositions given
legal effect. The living alone can be the subject of legal protection as life itself is the
basis and nucleus, to which every other rights, protection, security, privileges or
immunities attach. In other words, a life in being (person) is the centre and focus
of every rights or duties. However, publications concerning a dead person may be
defamatory of his living relatives and thus an offence is therefore committed if a
370
dead person is defamed with a view to bringing his living relatives into disrepute,
hatred or contempt.355
However, defamation against a dead person appears punishable in itself because
by reason of the provisions of section 373 of the Criminal Code, it is immaterial
whether at the time of the publication of the defamatory matter the person
concerning whom such matter is published is living or dead.356 Notwithstanding,
the consent of the Attorney-General must be sought before commencement
of prosecution.
The position of the law is that any cause of action already subsisting in tort is
brought to an end by death. The common law maxim actio personalis moritur cum
persona means that a personal action dies with the person. However, a legal action
can be taken by the estate of a deceased person. In Rose vs. Ford,357 the House of
Lords held that by virtue of Englands Law Reform (Miscellaneous Provision) Act
1934, an action for loss of expectation of life (happiness) survived for the benefit
of the estate of a deceased person.
At common law, the infliction of death does not give rise to a cause of action in tort.
The position is that no one can recover damages in tort for the death of another. The
prime reason is that the infliction of death is not a tort against the person killed.358
However, this position has been watered down by the fact that today, damages can
be recovered from a tortfeasor responsible for the death, if plaintiff independent
financial loss arising out of the death of the breadwinner.359 In Nigeria, the Fatal
Accidents Act360 is on hand to deal with the situation. Similar legislation exists in
many legal systems like United Kingdom, USA, South Africa, etc.
c.) Infants
The general position of the law is that an infant or minor is a natural person
under the age of twenty-one. Most legal systems, including Nigeria, attach certain
disabilities and immunities to infancy, some for the protection of society whereas
others are for the infants own benefit.
355
356
357
358
359
360
371
For the purpose of voting at elections, an infant has the right to vote if he has
attained the age of 18. He is nevertheless, incapacitated from sitting either in the
federal or the state legislatures or the local governments councils.361 However,
contractual capacity is twenty-one years. The infant cannot contract to marry
under the statutory monogamous system without the consent of his parents.
This incapacity also attaches to commercial contracts entered into by an infant.
At common law, an infant may enforce a contract to which he is a party, but he
cannot be sued on the contract as a defendant during his infancy. However, if he
ratifies the contract on his coming of age, he would be bound by it. This common
law rule has been modified by the Infants Relief Act of 1874, a Statute of General
Application in force in Nigeria as reviewed under the Laws of the Federation of
Nigeria, 2004.
Section 1 of the said Act invalidates all contracts made by an infant except those
in respect of necessaries.362 However, under customary law, the rule is less rigid.
In criminal law, for the purpose of criminal liability, the Nigerian Criminal Code
provides that an infant under the age of seven years is absolutely immune from
criminal responsibility, not only to the point that it cannot be held criminally
responsible for its acts or omissions, but also to the extent that such acts or
omissions cannot constitute a crime at all under sections 30(a) Criminal Code and
50(a) Penal Code. The codes however put the upper limit of the age for criminal
responsibility at 12 years. An infant sues by his next friend and defends by his
guardian ad litem.
d.) Married Women
The question is: what is the legal capacity of married women?
It is common knowledge that marriage creates status, certain immunity and
disabilities attach to the status of being a woman. These are essentially designed
to preserve family unity and domestic harmony. Women, whether married or
not, are in the same position as men with regard to citizenship, and they have the
right of franchise. More so, the 1999 Nigeria Constitution guarantees freedom
from discrimination based on sex, race or circumstances of birth. In the last two
decades, the courts have amply demonstrated its competence and activism by
declaring three customs in Enugu and Anambra states as discriminatory against
women and violation of womens rights and human dignity in the following cases:
361 Section 65 & 106, 1999 Constitution of the Federal Republic of Nigeria.
362 Labinjo vs Abake (1924) 5 NLR 33
372
373
wife to contract as his agent. It should be noted here that there is a presumption
arising out of cohabitation that the wife has authority to pledge her husbands
credit for necessaries.370
Under the law of evidence, communications between husband and wife remain
privileged in the law of tort as in criminal law (Ss.161 (3) and 163 of the Nigerian
Evidence Act). In this regard, a defamatory statement concerning one spouse is
published if it is communicated by Y to the other spouse, while communication
of a defamatory statement about Y by one spouse to the other does not amount to
publication in law.371
In criminal law, a husband and wife cannot be guilty of conspiring with each other
alone under S. 34 of the Nigerian Criminal Code to the effect that a husband and
wife of Christian marriage are not criminally responsible for a conspiracy between
themselves alone. This is because of the concept of unity of spouse in Christian
marriages alone.
Except in a few cases, a husband and wife are competent and compellable witnesses
against each other in criminal proceedings only upon the application of the spouse
charged under section 161 of the Nigerian Evidence Act.
2. Non-Natural Persons
As time progressed, common law lawyers found it expedient to continue the
official capacity of an individual beyond his life or tenure in office. Accordingly,
a second category of persons, who, though passing under the same title as flesh
and blood individuals, do not themselves possess flesh and blood. However, they
enjoy perpetual succession. This class of person was termed corporation sole. This
is a personification of official capacity rather than personification of humanity.
In the the case of Alli vs. Ikusebiala372 the court stated that while the mortal
incumbents come and go, the corporation sole remains forever. Also George Salmond
added his voice the living official comes and goes but this offspring of the law remains
the same forever. Corporate sole is an incorporated series of successive persons,
it consist of an individual holding an office which has perpetual succession. For
instance, the position of a Bishop of a church is a corporate sole; a traditional stool
is a corporate sole, etc.
370 Ibid at 25
371 Wennhak vs. Morgan (1888) 20 QB 635.
372 (1985) 4 NWLR (Pt. 4) 630 at 634
374
functions proper of any legal order. Every other actor at the international arena
either exercises effective authority over a territory for a limited period of time only,
or have no territorial basis whatsoever. States therefore remain the foundation of
the international community. They possess full legal capacity; they are imbued
with rights, duties, powers and obligations at international law. In other words,
they possess full legal personality. At international law, and in principle, all States
are equal but due to economic and military might, some States swing authority
than the rests.373 States are subject to the International Court of Justice.
The second group of international legal persons is insurgents. Insurgents come
into being through their struggle against the state which they formally belong.
They emerge as a result of a wound in the body-polity of a particular State, and are
therefore not easily recognized by the international community unless they can
show that they are capable of exercising some of the sovereign rights or powers
indicative of States. They assert themselves by force, and acquire international
status proportionate to their power and authority. Insurgency has occurred
frequently since the inception of the international community. Civil strife raged
in North America between 1774 and 1783: the fight between American settlers and
the British colonial power, ending with the victory of the rebels. Between 1810
and 1824, other rebellions broke out on the same continent against Spanish and
Portuguese rule in Latin America with the rebels also having the upper hand and
many other examples predominantly in the developing nations. However, before
insurgents are recognized or accepted, they must be in effective control of the
territory and, civil commotion must have reached a certain degree of intensity
and duration.
The third category of legal persons in international law is international
organizations such as the United Nations, the European Union, the African
Union, IMF and World Bank, UNESCO, ILO, ICJ, etc. States increasingly find it
convenient to establish international machinery for the purpose of carrying out
tasks of mutual interest.374 They therefore constitute distinct centers of action for
the furtherance of common goals and designed to perform only those activities
that States delegate to them. As organizations endowed with international legal
personality, international organizations are subjects of international law which do
not, unlike States, possess a general competence. International organizations are
governed by the principle of specialty, that is to say, they are invested by States
which create them with powers, the limits of which are a function of the common
interests whose promotion those States entrust to them. According to Article 4.1
373 Antonio Cassese. International Law. Oxford (2001) p.46
374 Wigwe Chris. The World Bank, IMF and State Sovereignty . 2010
376
of the 1998 Statute of the International Criminal Court, the International Criminal
Court shall have international legal personality. It shall also have such legal
capacity as may be necessary for the exercise of its functions and the fulfillment
of its purposes.
Another category which is not a traditional international legal personality but an
exception is that of individuals who are supposed to be under the control of states
to which they are citizens or residents. They become international legal personality
in circumstances where they violate rules of war, such as genocide, aggression,
terrorism, torture, and other crimes against humanity for instance, Charles Taylor
facing criminal charges at the International Criminal Court of Justice.
office. This is also in tandem with most popular democracies in the world, though
the wordings of the immunity clause may not be as express as that enshrined
in the Nigerian Constitution which is not unconnected with the long military
interregnum in Nigerias political landscape. This is true because, an example is
that what is enshrined in the American Constitution for the executive president
is an implied immunity as against the ground-breaking and exhaustively express
immunity clause provided in the Nigerian Constitution which, many have argued,
is nothing but a blanket cover for the nations endemic and pandemic corruption.
The privilege of immunity from prosecution is also provided for members of the
diplomatic corps (if foreign diplomats) in most legal systems. Where they offend
or violate the law of their country of domicile, they could only be declared persona
non grata (i.e. no longer acceptable or wanted) and thereafter deported to their
country of origin.
Furthermore, a view of a right as a legally enforceable claim, or benefit, entitlement,
or interest recognized and protected by the legal system the violation of which is a
wrong either public or private, appears to capture the substance of the opinions of
many jurists and authors of note.
Many more instances could be drawn from the interest, claim, or ownership that
one has in tangible or intangible property such as a debtors rights in collateral,
copy rights, a chose in action, etc. According to Gray:
Right is a correlative to duty, where there is no duty, there can be no right.
But the converse is not necessarily true. There may be duties without rights.
In order for a duty to create a right, it must be a duty to act or forebear.
Thus, among those duties which have rights corresponding to them do not
come the duties, if such there be, which call for an inward state of mind,
as distinguished from external acts or forbearances. It is only to acts and
forbearances that others have a right. It may be our duty to love our
neighbour, but he has no right to our love.375
378
conferred on him by his community and/or society, this is in the case of moral
rights. McCormick, one of the greatest apostles of benefit/interest theory, in his
spirited argument in favour of benefit theory, maintained that what is essential
to the Constitution of a right is the legal or moral protection or promotion of
one persons interests as against some other person or the whole world, by the
imposition on the latter of duties, disabilities, or liabilities in respect of the party
favoured.376 Accordingly, when it is said that one has a right, the implications are:
(a) That somebody else has a duty, disability or liability in respect of one; and
(b) That the reason for the existence of that duty, disability or liability is
precisely the protection or promotion of ones interest.
Salmond conceived rights as interests, benefits or advantages recognized by law.
According to Raz X has a right when an aspect of his well-being is sufficient reason
for holding some other person(s) to be under a duty.
2. The will or Choice Theory
The will or choice theorists hold that it is untidy to say that a person has a legal
right simply because the law confers a benefit or advantage on him by imposing
some duties or liabilities on other people. Individual discretion is the basis of the
argument by this school, that is, protection of free choice. The school identifies
a right bearer by virtue of the power that he/she has over the duty in question.
He or she can waive it, extinguish it, enforce it or leave it unenforced. Individual
discretion, therefore, is the single most distinctive feature of this theory of right.377
In other words, to say that X has a right is true if, besides the existence of a duty in
a person Y, X is by law given the power to do at least one of the following:
To choose whether to waive Ys duty or leave it in existence; or
a.) After breach or threatened breach of the duty, to leave it unenforced or to
choose to enforce it by suing for damages, applying for an injunction, etc;
or
After the duty to pay compensation has arisen, to waive or extinguish that
obligation. It is the argument of Professor Hart that all types of rights as outlined
by Hohfeild seem to protect the freedom of choice of an individual one way or the
other. This school of thought vigorously contend that the essential characteristic
of rights is not that they provide some benefits to the right holder but rather that
376 Raz J. The Morality of Freedom. Oxford (1986) p.166
377 Flatham R. The Practice of Rights. Oxford (1976)
379
they promote and protect the power of free choice of this right-holder, either by
not obstructing it or by giving effect to it.
Criticisms
A careful analysis of the choice or will theory exhumes serious paucity and
conceptually inadequate but unattractive argument by the apostles of choice/will
theory of rights. The anatomy of the choice or will theory as is been canvassed
prominently by Hart, is just a bundle of headache as even Hart himself impliedly
acceded to the benefit theory and expressly admitted the inadequacy of the choice
theory. Hart conceded that the choice theory failed to offer an adequate account
of all legal rights, let alone moral ones.
The fundamental difficulty with the choice or will theory is that it appears to use
procedural or remedial rights to explain an already substantive right. The truth
is that ever before the question of choice whether or not to waive, extinguish
or enforce rights arises, there is in existence a substantive right. In this context,
choice is only collaterally a procedural or remedial right coming to play as second
in the chain of rights and therefore ancillary a remedial right which should not be
confused with substantive right. The choice whether or not to waive or enforce
is therefore an accessory attendant upon a primary right which is even revealed
by the arguments of the choice theorists. The choice theory is but an auxiliary,
collateral or accompanying right attendant upon the existence of a substantive
right. The substantive or primary right is what the choice theorists have failed to
recognize which has continued to constitute a palpable infirmity congenital in
their argument yet to be cured. It is in the light of this that Gerber rightly said
that substantive right is one thing, and having the right to claim it is another. An
eloquent instance is that children, we all know, have rights, but however, they lack
the capacity to sue or bring their grievances forward. They can only sue through
their next friend usually a parent, guardian or any other person in loco parentis. A
fundamental question in this regard is: what if such next friend refuses to assist?
Could we legally say no right exists simply because the child, who is in this case
the right bearer, has not the capacity or standing to sue? Again, since children
or infants have no mental attachment or understanding of their bundle of rights
and thus are incapable of exercising any freewill or choice over them, is it then
logically sound to posit that they have no rights? Questions and further questions.
The aim of the law in empowering some other persons even local authorities to act
on behalf of the child and represent the child in legal actions is for the purpose of
protecting the rights of the child since the child has not attained the age or mental
capacity to administer his affairs. These powers or duties imposed on others to
380
act for the child do not constitute the rights in this sense. They only go to protect
the rights of the child which are already in existence. These powers are therefore
procedural matters. Any argument to the contrary only confuses substantive rights
with ancillary remedial provisions.
Another clear argument against the choice theory could be exemplified by the
substance of the right to personal freedom. It is self evident that in most legal
systems, no person can be enslaved even if he gives consent. In other words, choice
or consent cannot influence the sale of one into slavery precisely because the right
to personal freedom is a more important right giving that it is a self evident truth
that every human person was born or created free. It thus becomes proper that the
right to personal freedom be made impossible to be bartered away.
However, this is quite unlike other cases where choice theory can apply. An
eloquent example is in a boxing competition and surgical operation. This will fall
under the law of tort where the common principle of volenti non fit injuria (i.e.
he who consents cannot complain of harm) applies. In a boxing contest, a party
impliedly consents to receive punches so long as he is not hit below the belt.
Thus, his right against what will ordinarily qualify in law as assault and battery
is herein waived. Again, where a patient goes for a surgery for the removal of his
appendicitis, he waives his right against what would ordinarily qualify in law as
battery and injury occasioning dangerous bodily harm. In these scenarios, the
choice theory holds sway, however, their argument, as it has been shown, does not
hold true at all times.
Also, most authors have argued that childrens right to care and nurture have
similarly revealed a palpable fallacy of the choice theory. Parents or guardians
have, in most jurisdictions, a legal duty to provide care and nurture for their
children or wards for which they are responsible. In this instance, neither the
parents/guardians, nor children themselves can waive that duty. In this regard,
Mac Cormick stated the following which vividly captures the issue at stake in
glowing pictures:
we are put..........to our election. Either we abstain from ascribing to children
a right to care or nurture (on the ground that no one has discretion to waive
the responsible adults duty of care and nurture) or we abandon the will
theory. For my part I have no inhibitions about abandoning the latter.
In his own view, Finnis stated thus on the inadequacy and fallacy of the
choice theory:
381
In his earliest defence of choice theory, Hart admitted that if there are
legal rights which cannot be waived, this would need special treatment.
That special treatment has not been forth coming, and the existence of
such rights does tell against the choice theory.378
It is pertinent to point out that Hart himself admitted that fundamental human
rights are not based on choice but rather on basic or fundamental individual
needs.379 Also, Hart conceded that Constitutionally, rights (such as immunity)
which protect certain interests of the citizens against derogation even by acts of
legislature cannot be accommodated by the choice theory of rights.380
Thus, as stated earlier in this book, benefit or interest theory accord more with the
reasoning of most authors and in tandem with general view.
382
the interest or benefit of the person in question. In a contract for sale of land, a
purchaser therefore has a claim-right to have the piece of land conveyed to him
by the vendor (i.e. seller) after the purchase price has been paid and Governors
consent obtained as required under the Land Use Act.382 Correspondingly, the
vendor too has a correlative duty to convey to the purchaser the piece of land
the subject matter of the contract by executing the proper deed of conveyance
or assignment after the contract for the sale of land has been concluded and
the governors consent obtained. Also, there exists a claim-right in A not to be
physically assaulted by B. In the same token, there exists a correlative duty in B
not to physically assault A. It is necessary to point out that claim-right does not
involve only contractual situations; it goes beyond the arena of public law such
as criminal law (e.g. assault and battery, etc), Constitutional law (e.g. dignity of
human person) or tort (e.g. assault, nuisance). This forms one of the criticisms
against Hohfelds analysis because Hohfeld appears to have considered only
private law and his scheme analysis failed to consider public law.
Liberty
In Hohfelds analysis, to say that X has a liberty is equivalent to saying that X himself
is under no duty to do or refrain from doing something. This means that there
is no legal duty imposed on a person. This therefore implies the freedom from
arbitrary or undue external restraint. It is note worthy that most of these liberties
are protected by a countrys Constitution or grund norm and under international
law, the Bill of Rights or Fundamental Human Rights Act.
It is pertinent to note here that the concept of liberty is very vital to any civilized
human society as it fosters peaceful co-existence, peace and security. It forms the
pivot and fulcrum of human flourishing and prosperity. Liberty is so important
to the soul and spirit of human civilization that Patrick Henry once declared in a
speech he made to the Virginia Convention, Give me liberty or give me death.
It would be instructive to emphasize that the concept of liberty denotes not merely
freedom from bodily restraint but also the right of the individual to contract, to
engage in any of the common occupations of life, to acquire useful knowledge, to
marry, establish a home and bring up children, to worship God according to the
dictates of his conscience, and generally to enjoy those privileges long recognized
at common law as essential to the orderly pursuit of happiness by free men.383 It
would thrill our conscience and gives a sense of deep happiness and peace to know
382 CAP L5, Laws of the federation of Nigeria, 2004.
383 Meyer vs. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626 (1923).
383
that we are born free, liberty being a right inherent in us by birth, a right we came
with into the society.
In the words of Salmond, the sphere of my legal liberty is that sphere of activity within
which the law is content to leave me alone.
A careful peep at the anatomy of the Constitutionally entrenched right to freedom
of thought, conscience and religion384 is graphically illustrative of the assertion
that man is born free, liberty inherent in his nature by reason of his humanity. For
instance, it is self-evident that the mind of man is so free that it navigates through
any issue, situation, problem, concepts, ideas, etc without any iota of restraint or
friction. Thoughts flow through the human mind in all and any direction ranging
from the harmful, harmless, dangerous, bizarre, minor, simple, detailed to complex
thoughts and imaginations. Even though imprisoned in the body, the human mind
travels far distances into distant lands, desserts and seas unrestrained. In fact, a
slave-master can have a slave in bondage and servitude, but the truth of the matter
is that even though the physical body of the slave housing the mind is subject to
slavery; the mind, the mental faculty or the imaginative domain of the slave is not
and can never be in slavery. The slave master can only dictatorially control the body
of the slave and certainly not his mind. The mind and imagination of man is free
from birth. The mind is endowed with the absolute liberty to swim in the shoreless ocean of thoughts. The Constitutional guarantee of this freedom of thought
and conscience is only to re-echo and amplify with legislative microphone the
already existent right of liberty inherent in the soul and nature of man by creation
which is why liberty is most fundamental to the peaceful co-existence, safety and
security of the society. Why? The answer is simply because we are all in pursuit of
happiness. Without liberty there can be no real happiness. Surely a human person
without liberty is as good as dead. This is because freedom is inborn, a gift from
God which no man living is competent enough to fetter. This is why humanity
would emphatically say no to any ignoble attempt by any tyrant or wielders of
power to fetter human liberty. The truth is you either give us liberty or give us
death instead.
A person has liberty(right) to express his opinions in public affairs in as much as
he refrains from committing a crime or a tort against another person . In the same
vein, a person has liberty to do as he pleases with his own property so long as
he does not breach the law (e.g. by committing nuisance). Also, a person has the
liberty of using reasonable force in self-defence of both himself and his property
384
385
The above is not only a judicial anointing and entrenchment of Hohfelds theory
of rights in the Nigerian legal system but also an expanded and expounded touch
on the intrinsic value of the term rights.
386
the President of the Federal Republic of Nigeria and his vice granted immunity
under Section 308 of the 1999 Nigeria Constitution, would be liable or answerable
to proceedings of the court where the immunity clause in the section insulating
them from prosecution is expunged from the Constitution. Until then, they are
not amenable or liable for prosecution during the tenure of their office.
The view expressed by Williams Anson388 is instructive at this point:
the term liability is one of at least double signification. In one sense it is
the synonym of duty, the correlative of right; in this sense it is the opposite of
privilege or liberty. If a duty rest upon a party, society is now commanding
performance by him and threatening penalties. In a second sense, the term
liability is the correlative of power and the opposite of immunity. In this
case, society is not commanding performance, but it will so command if
the possessor of the power does some operative act. If one has a power, the
other has a liability.
It would be wise to adopt the second sense exclusively. Accurate legal
thinking is difficult when the fundamental terms have shifting senses.
Disability
This simply means legal incapacity or inability. It is used to refer to the legal
preclusion or deprivation of capacity to act or function. In other words, it refers to
the legal impossibility or absence of legal capability to act or function by reason
of restraint of law. Legal disability restricts, constrains, derogates and incapacitates
the ability to act or function in one person in respect of certain issues or state of
affairs. As the opposite of power, a legal disability exists in one person in relation
to another in certain respect if that person does not have the power to change
the other persons legal situation in that respect. As a correlative of immunity,
disability exists in person A if immunity is present in another person B.
A careful consideration of the following hypothetical statements for instance,
would make the point more clearer. If we say for instance that the President of
Nigeria is immuned from being removed from office by a member of the National
Assembly, the same idea could be expressed by saying that any given member of
the National Assembly has a disability to remove the President of Nigeria from
office. That is, a single member of the National Assembly is legally precluded or
incapacitated from validly impeaching Mr. President.
388 Williams R. Anson. Principles of Laws of Contract. (1999) p.925
387
388
However, due to the unbearable condition of the state of nature, men agreed to
enter into a social contract by which they agreed to live together in the society.
This social contract theory provided that in order to make social and political life
possible, men would give up some of their original rights and acquire some duties
towards each other to which some new rights would correspond. It is conceived
that men gave up some of their rights in return for protection and security of their
lives and property.
The above argument is subject to many devastating arguments. For instance, it
has been argued that there is no empirical evidence of an original state of nature
or an original social contract. In fact, man has never had an absolute liberty or
rights without restraints in any society in recorded history. Empirical evidence has
shown that men have always lived in groups as it is clear that a new born child
could only survive by being taking care of by others. That is, there has always being
society, no matter how primitive. Also, it has been argued that the consent of the
people to the setting up of government very seldom had place in any degree, and
never almost in its full extent. Reliable history reveals that most governments have
been formed by violence submitted to out of necessity not necessarily legitimacy
arising from general consensus of the community or society in question.392
However, in spite, of the above damaging criticism, the self-evident fact remains
that we have human society with its government in place. The government is
established to administer the society for the common good and interest of all. The
security and welfare of the people is therefore the primary purpose of government.
The concept of political rights therefore consists in the power of members of a
society to participate directly or indirectly in the establishment or administration
of its government. Every Nigerian citizen has the right to vote and be voted for, and
also the right to hold public office. In line with this, the 1999 Constitution of the
Federal Republic of Nigeria provides in Section 14(1) thereof to the effect that the
Federal Republic of Nigeria shall be a state based on the principles of democracy
and social justice. In subsection (2) of the same section, the Constitution
provides thus:
(2) It is hereby, accordingly, declared that:
(a) Sovereignty belongs to the people of Nigeria from whom government through
this Constitution derives its powers and authority;
392 Hume D. The Original Contracts. Making Law Bind. Oxford (1987) p.142
389
(b) The Security and welfare of the people shall be the primary purpose of
government; and
(c) The participation by the people in their government shall be ensured in accordance
with the provisions of the Constitution.
In sub(2)(a) above, the right and/or power to establish its own government is
that of the people since sovereignty belongs to the people from whom the persons
controlling the coercive machinery of government derive their powers, legitimacy
and authority. The right to form or establish its own government belongs to the
people. Again, in sub (2) (c), of the same section, the people have the right to
participate in their own government. This political right is non-negotiable in
any civilized human society. A combined reading of sub (1) & (2) of the said
section of the Constitution demonstrates in black and white and proves without
controversy that democracy and social justice are Constitutionally stipulated as
a right (political). It is based on this reason that the participation of the people
in the government is entrenched in sub (2) (c) of the above section. Even the
classical definition of democracy by Abraham Lincoln reveals the point at issue
more clearly. His definition of democracy as government of the people by the
people and for the people is quite revealing of the real elements of democracy. This
time-honored definition means that democracy is the government of the people
(i.e. they own it) established by the people (i.e. they formed it) and exists for the
people (i.e. it should exist for their welfare, security, interest or benefits). A political
right is in essence the right to participate in the establishment or administration of
government such as the right to vote or the right to hold public office otherwise
called political liberty.
Therefore, every citizen that has attained the requisite age has the right to vote
and be voted for in general elections, right to participate in the government by
expressing his view on public policy and development programmes of government,
freedom to join and withdraw at will from any political party of his choice, sponsor
a bill to the legislature, debate budget proposal of government, freedom to hold
and express an opinion on government policy or programme, etc.
2. Civil Rights
These include rights which belong to every citizen of the country and in a wider
sense include all inhabitants. They are the personal rights of the individual citizen
to have equal treatment and equal opportunities. Civil rights include right of
properties, citizenship, freedom of contract, the right to vote, the right of due
390
process and procedure, the right to personal liberty, the right of equal protection
under the law (e.g discrimination in employment and education on the basis of
race, sex, religion, color or age) etc.
It is worthy to note here that although all political rights are themselves civil in
connotation, not all civil rights are political in character or connotation. Suffice it
to say that civil rights are rights appertaining or relating to citizens of a country by
reason of their citizenship of that country or community and refers us generally to
rights capable of being enforced or remedied by a civil action.
3. Natural Rights
These are rights that are considered as part of the nature of man by reason of
his humanity and thus exist independently of rights created by government or
society. They are considered as personal rights that every human being was born
with. They are inborn in every man from birth and as such could not be said to
have been conferred on one by society or law. This idea informs the nucleus of the
United States Declaration of Independence in 1776 which states:
We hold this truth to be self-evident, that all men are created equal, that
they are endowed by their Creator with certain unalienable rights.
Chief Justice Salmond P. once stated in the John Van Zandt case that:
The law of the Creator, which invests every human being with an
inalienable title to freedom, cannot be repealed by any interior law which
asserts that man is property.
Natural rights are therefore rights which are not contingent upon the laws,
customs, beliefs of a particular society or government. They have always been
there by nature and inborn in every human. In contrast, legal rights (also called
statutory rights) are those rights that are granted or ceded to man by a particular
society or government, codified into statutes by legislative activity, and are as such
contingent upon local laws, customs or beliefs. However, in recent times, most
natural rights have now been recognized, protected and entrenched by statute laws.
Natural rights are inherent in the nature of man which is why they are also called
personal or human rights (termed in many legal systems as Fundamental Human
Rights). These rights are so part and parcel of the person of a human being that if
taken away, there would be nothing more left to be called a man. Human/natural
rights are therefore evidently inalienable. It is therefore not in the place of any
law, any charter, any State, any society, any emperor or king to take away from his
391
subjects or citizens certain rights which is inherent in his person by reason of his
humanity. It is indeed trite law that Nemo dat quod non habet: you cannot give
what you do not have. If this is a correct and valid truth, then, it should also be
correct therefore to hold that we cannot, by our own self, take what we did not
give. Further, a human being, the bundle in which natural rights consist, is a free
gift which is no mans property or chattel. One need not nurse the claustrophobia
of being branded over simplistic here, for one will even proceed further on
the point. Let us start from the known to the unknown. For instance, one can
prove ownership of a car, chattel or any other property by showing a receipt of
ownership thereof. However, the funny and empirical truth is that we are yet to
see any human being with a receipt of his life or his person. This goes to show
that someone else owns our life, which is the Almighty God. The human rights
we are talking about are therefore inalienable aspects or liberties of personhood
that guarantees his existence and distinguishes him from things, articles of trade
or chattel. Hegel, a German philosopher, has made an incisive and penetrating
argument on inalienable nature of human or natural rights thus:
The right to what is in essence inalienable is imprescriptible, since the act
whereby I take possession of my personality, of my substantive rights and
with a moral and religious life, takes away from these characteristics of
mine just that externality which alone made them capable of passing into
the possession of someone else. When I have thus annulled their externality,
I cannot lose them through lapse of time or from any other reason drawn
from prior consent or willingness to alienate them.393
Thus, inalienable rights are those rights that cannot be surrendered by citizens to
the sovereign and are independent of positive law. They are only recognized and
entrenched by positive law. Natural right or human right is, at least, one right that
cannot be ceded or abandoned. It is the right to personality or personhood. If a
man should give up his personality or personhood he would cease being a moral
being or human being. By such renunciation, he would give up that very character
which constitutes his nature and essence: he would lose his humanity.394
Natural rights are inherent in all inhabitants or citizens. It is indeed a poverty of
expression to say that it could be granted by any law or charter because this would
legally imply it could also be revoked by charter or law. Natural or human rights are
analogous to what we have come to know and entrenched in most Constitutions
392
as Fundamental Human Rights. In the case of Yesuku vs. Asemota,395 the court
authoritatively and explicitly set forth as follows:
A fundamental right is undoubtedly an inalienable right which
corresponds to a jus naturale (i.e. natural right). It is the greatest right.
Where therefore a nations Constitution embodies a class of rights thus
described as fundamental rights, such as the 1979 Constitution (now
1999 Nigerian Constitution). There has thus been enshrined a peoples
expression of political, civil and/or civil rights as endowed by nature, but
only to the extent that strictness or largeness of government does permit.
The foregoing is to the effect that fundamental rights are synonymous with natural
rights such rights having their root in the personhood and nature of man. Similarly,
in the case of Ransome-Kuti vs. A. G. Federation,396 Kayode Eso JSC (as he then
was) gave a well-expounded natural law perspective of fundamental rights thus:
But what is the nature of a fundamental right? It is a right which stands
above the ordinary laws of the land and which in fact is antecedent to the
political society itself. It is a primary condition to a civilized existence.
The ground-breaking words used by the court in their wisdom, in the above case
demonstrate the very important nature of fundamental human rights.
However, one would quickly state here that there is no absolute right without
limitation. This is axiomatic because it is a hallowed principle in law that ones
right stops where anothers right begins. For instance, freedom of movement
does not mean that one should trespass into another persons property or to
run over pedestrians and other road users with ones car. The Constitutional
right to freedom of movement is restricted in periods of emergency. The right to
freedom of association and peaceful assembly is restricted by laws criminalizing
secret societies and cult groups. The very Constitutional right to life is excused in
execution of the sentence of a court of competent jurisdiction in respect of crimes
convicted of.
In Dokubo-Asari vs. Federal Republic of Nigeria,397 the Supreme Court held
that the right to personal liberty guaranteed by section 35 of the Constitution of
the Federal Republic of Nigeria, 1999 is not an absolute right. The court stated
that personal liberty of an individual within the contemplation of S. 35(1) of the
Constitution is a qualified right in the context of S 35(1) (c) & 45 thereof which
395 (1982) 3 NCLR, 419 427.
396 (1985) 2 NWLR (Pt. 6) 211 at pg. 230 of the report.
397 (2007) 12 NWLR [Pt. 1048] pg. 320 at 333 334.
393
394
It is worthy to note that fundamental rights are universal. In order words, they
belong to every human being irrespective of their geographical location. This is
consequent on the global understanding of the appreciable depth and unique
worth of every human being. Criticisms notwithstanding, the basic original ideas
of human rights continue to remain the same and instead gain more and more
popularity across the globe even into reluctant interior nations. The singular
reason for the international or universal recognition and unification of human
rights principles rest in the fact that except these conditions and/or liberties exists
and guaranteed; human development and flourishing, safety, security and the very
existence of man would be seriously and dangerously threatened. The preamble
to the Universal Declaration of Human Rights and International Covenants of
Human Rights provides:
Recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom,
justice and peace in the world.
Also, the Vienna Declaration which is a final document of the World Conference of
Human Rights (1993), which was adopted by consensus of unprecedented number
of 171 representatives of States, made the following unambiguous declarations on
Fundamental Human Rights:
Human rights and fundamental freedoms are the birthright of all
human beingsthe universal nature of these rights and freedoms is
beyond question.
These rights have been entrenched in most Constitutions or statutes of sovereign
states of the international community. In Nigeria, these rights could be found
in chapter IV of the 1999 Constitution of the Federal Republic of Nigeria, Cap
C23, Laws of the Federation of Nigeria, 2004. Around the globe, these rights are
sacrosanct and basically inalienable and, in most parts, they constitute the national
or municipal endorsement or unification of the Universal Declaration of Human
Rights of 1948.
Examples of natural rights are:
i.)
Life Everyone is entitled to live once he/she is created (or born) right
to life.
iii.) Estate Everyone is entitled to own property which he/she may have
created or gain through gift or trade so long as it does not conflict with the
first two rights.
iv.) Right to Freedom of thought, conscience and religion
v.)
vi.) Right to Freedom of expression and the press subject to the rules of
defamation or libel
vii.) Right to freedom of movement, etc.
396
397
398
399
400
The title arises as a result of failure of the true possessor or owner to claim
or exercise control or make any positive acts to show he is the rightful
owner or possessor of the thing in question. At the expiration of the
statutory period, the possession/ownership then vests in the adverse
possessor. Thus, this exemplifies the effect of the lapse of time in creating
and/or destroying rights.
401
ii.) Delivery: This is the acquisition of possession with the consent and
cooperation of the previous possessor.404 Delivery is subdivided into
actual and constructive. Actual delivery is the transfer of immediate
possession; it is such a physical dealing with the thing as transfer from
the hands of one person to those of another. Constructive delivery on the
other hand is any act that amounts to a transfer of title by operation of law
when actual transfer is impractical or impossible.
Incidents of Ownership
1.) Right to Possess: Possession simply means immediate physical control of
a thing. It refers to the physical fact of having a thing or property in ones
control or power otherwise called the exercise of dominion. The right to
possess therefore is the right under which one may exercise control over
something to the exclusion of all other persons.
2.) Right to User: The right to use refers to personal use or enjoyment which
can take any form including even abuse. That is to say that the owner has
the right to use and even abuse his property.
3.) Right to Manage: The right to manage refers to the unfettered liberty of the
owner to decide on how and by whom the thing owned shall be used, for
instance, grant of licence to enter a piece of land, assignment, lease for a
specific purpose.
4.) Right to Receive Income: This is the right to the rents, profits, products
and proceeds derived from the thing owned.
5.) Right to Security: This refers to the immunity granted the owner of the
thing against being expropriated by others. However, this is subject to
national policy or laws which may put limit on security of property where
404 It may also consist of Constructive Possession
402
denoting the unity of a complex bundle of rights or claims in a person over a thing
in relation to other persons or the whole world at large. In other words, when we
speak of ownership, it should be understood to mean that certain rights or claims
are vested in a person with respect to a thing or property against other persons or
the whole world.
In essence, an owner means the person with the greatest and/or ultimate
interest recognized by the law in the thing owned. In the case of Abraham vs.
Olorunfunmi,405 Niki Tobi JCA (as he then was) while delivering the lead
judgment stated the following as it relates to ownership:
connoting a complete and total right over a property. The owner of the
property is not subject to the right of another person. Because he is the
owner, he has the full and final right of alienation or disposition of the
property and he can exercise the right without seeking the consent of
another person because as a matter of fact, there is no other personal right
over the property that is higher than his. The owner of the property can
use it for any purpose, material, immaterial, substantial, non-substantial,
valuable, invaluable, beneficial or even for a purpose which is detrimental
to his personal or proprietary interest. In so far as the property is his, and
inheres in him, nobody can say anything. He is the alpha and omega of the
property. The property begins with him and also ends with him. Unless he
transfers his ownership over the property to a third party, he remains the
allodial owner.406
It follows therefore that ownership denote a right or interest in a thing over and
above the interest or claim of every other person. Just as authoritatively stated
above, an owner is the alpha and omega of the property; the property begins and
ends with him except he transfers or bequeaths it to another person.407
The importance of the law of ownership/property cannot be over emphasized.
Salmonds view on the issue that ownership is needed to be a very good idea of
mine or not mine or thine is straight to the point. It is relevant because in
a community of interests and/or a community of persons, there is bound to be
conflict of interests. It is only a Robinson Crusoe: a man living by himself in a
desert, an island or isolated from other human beings that has no need for the
concept of ownership or property. The rules of property or ownership become
necessary once one lives in a community in order to distinguish between things
405 (1991) 1 NWLR (Pt.165) pg.74-75
406 Supra.
407 Ansav Ishie (2005) 15 N.W.L.R. Pt 948 p.210432
404
that are his and those that are not. Also, it helps one to determine what to do with
his things so as not to interfere with those of his companion. The point being made
is that where there are no conflicting interests, certainly the need for ownership or
appropriation of properties will not arise. This is because, when one owns a thing
or property, it is the same as saying that he alone reserves the sovereignty and
prerogative in fact and in law, to exercise absolute and supreme control over such
thing or property to the exclusion of every other person. It is actually his in the
words of Salmond. In this sense, what we own means what we have control over
(either immediate physical control/possession), a right which we have in a thing
over and above the right of any other person. Thus, the concept of ownership or
property provides a means of balancing conflicting interests in the society as was
espoused by ROSCOE POUND, the apostle of the sociological school of thought.
It will be appropriate to mention here that the concept of ownership is only
relevant to such things or property that are relatively scarce. For instance, nobody
has bothered to lay claim to things like the air we all breathe, the sun or moon,
the ocean or high seas. The reason is that they are common property of the entire
humanity. Again, this is because they are surplus and as such, there is no need for
any feverish rush to acquire them. The air we breathe is all over the place. It is an
ownerless chattel, a thing that can belong to no one. This category of property
belong to what are usually called the res communes; meaning things common to
all, things that cannot be owned or appropriated but belong to the whole of the
community or humanity in common.
Ownership occupies a very vital position in any legal system or society because
it is a more permanent, ultimate and residuary concept in relation to possession.
Consequent on its vital role, every legal system has in place laws protecting
ownership not excluding possession. The question who owns what? When? and
how? is a very intriguing question but one answered by every legal system through
its municipal laws. There may be variations between systems of ownership in
different legal systems by reason of national objective, national policy, municipal
conception and persuasion. Honore has commented as follows:
Whether a system recognises ownership, and to what extent it permits
it (who may own, what may be owned), are very different questions. No
doubt, liberal societies are more inclined than socialist societies to extend
the list of items that can be owned, but it does not follow that, when a
socialist system permits personal ownership, it permits something different
from what is permitted in a liberal society.408
408 Honoret T. Ownership in Making Law Bind. (1987) p.161163
405
In spite of the variations existing in municipal divides, Honore has distilled the
following as legal incidents of ownership which are found in most legal systems
of the world.
406
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410
411
412
Table of statutes
413
414
Index
A
Diwan 276
F
415
416
Index
S
Shafi I 272
Sharia xviii, 85, 118, 119, 158, 160, 190, 270,
274, 279, 286, 287, 288, 289, 290,
294, 295, 297, 298, 299, 304, 305,
312, 313, 315, 316, 325, 330, 332, 333,
350, 352, 353, 414
Sociological 1, 3, 255, 301, 302
Sunnah 269, 270, 273, 279, 280, 282, 283,
284, 285, 286, 287, 288, 295, 297,
299, 307, 313, 314, 315, 316, 335, 336,
340, 342, 343, 345, 348, 349
UMAR 276
417