Grand Master - , 3:53 am On 10 Oct 2017
WHAT IS LAW?
The definition of law is covered in a mist of controversy. There are as many definitions as there are jurist, at the end of this post, you should also be able to offer your own definition.
Oliver Wendell Holmes defined law as:
'the prophecies of what the court will do'
Plato defines law as:
'an embodiment of reason'
Prof. Hart defined law as:
'a system of rules'
John Austin defines law as:
'a rule laid down for the guidance of an intelligent being by an intelligent being having power over him'
Regardless of how you define law, for anything to be law it must have some essential features; these are:
1. Body of rules: A law is a body of rules, whether or not it is written down, or codified, it consist of rules.
2. Normative: Law is normative, in that it tells us what we ought to do, or ought not to do. It shares this quality with religion. You find word phrases like 'there shall be..', 'it shall be an offence to...' etc.
3. Sanction: This refers to consequence of disobedience. Sanction may be positive as in reward or negative as in punishment. Legal sanctions are usually negative. for example, 'a person guilty of murder shall upon conviction be sentenced to death'.
4. Territoriality Limited: No law applies Universally even international Law. Every law has its territorial limitations. That is, the law of Nigeria applies to Nigeria alone and not to Ghana or Cameroon, it is only enforceable in Nigeria.
Every Society needs law to function, but what then should be the content of our laws? What is the best form of law? There are certain schools of jurisprudence on what is the best form of law, these include:
1. Natural Law School: The chief proponents of the school of thought are: Hugo Grotius, Thomas Aquinas, and Zeno. They say for anything to be law it must be fair, just and right. They hold that there is an element in man called 'conscience' that tells him to do good and refrain from evil.
By illustration, stating that if you put ten sane men from different cultures in a room, and ask them if stealing is good, most of them will say no. Therefore, our laws should reflect our core moral values.
This school of thought has given rise to concepts like human right, natural justice, and equality; but it is not without it shortcomings.
Firstly, there is a problem of plurality of conscience, what is fair to A may not be fair to B.
Secondly, It is this school that has gave birth to concept like slavery, monarchy, and aristocracy, based on the assumption that some people are naturally born superior to others.
Thirdly, not all laws have moral implications, some laws only serve convenience or technical purposes. An example of such laws with no moral implication are traffic regulations.
2. Analytical Positivism: The term 'posit' connotes to lay down or put down, so according to the positivist, any rule is law if it laid down by a person or body having power to do so (I.e the monarch, or the legislator). There are two basic theory under this:
a) The Command Theory: The chief proponent of this theory is John Austin, stating that law is a command laid down by a superior beings for inferior beings. The superior being is in the habit of being obeyed while the inferior beings are in the habit of obedience. The superior being according to Austin must be an Absolute Commander who is himself above the law, who may ensure compliance to the law by enforcing sanctions.
b) Pure Theory: The chief proponent of this theory is Hans Kelson, who states that law is a succession of norm, one norm deriving its validity from another norm, which derives it validity from another norm until it gets to the grund norm. In a democratic society, the constitution is the grund norm.
The positivist school of thought is more in line with the needs of a modern society as the legislators are presumed to know the needs of the society and hence are able to make laws to soothe those needs. It is also not without its shortcomings, the positivists did not concern themselves with the content of the law, whether it is good or bad, they are only concerned with the process by which a law is made.
3. Sociological School: The chief proponent of this school is Eugene Ehrlich, according to him, the centre of gravity of the law is not is juristic science, nor in judicial decision but in the society itself. That is to determine what the law should be, one must look at the 'living law' in the society. That is, how the law is obeyed or disobeyed in the society. In order words, the law must not be at variance with popular conduct, as a law which is at variance with popular conduct is doomed as an instrument of social control, and the people will find a way to disregard it. There many laws in Nigeria that are dead in the books, because it is against popular conduct.
For example, even after criminalisation of the practice of OSU Caste system several years ago, the practice is still widespread in eastern Nigeria. However, the society cannot permit gross antisocial conducts merely because it is popular. An example is the receiving of bribe by public officers.
4. Historical School: The chief proponent of the school is Friedrich Karl Von Savigny, he posited that every people has its own spirit, the German people has its spirit, so does the French people, the English people and the Nigerian people. So in determining the best form of law, we must look at the history of the people.
If we go by this Polygamy not monogamy should be pronounced in Nigeria. However, the shortcoming of this is that according to Savigny, the past of the people not their present should determine the content of the laws.