Justiciability of Chapter II of the Nigerian Constitution – Inioluwa Olaposi

Justiciability of Chapter II of the Nigerian Constitution

Have you ever heard anything about the justiciability of Chapter II of the Nigerian Constitution, 1999, which contains socio-economic rights?

Are you aware of the fact that these rights contained in the second chapter of the Nigerian constitution are not enforceable, or non-justiciable? This post is on this issue, and possible solution.

The Chapter II of the Constitution of the Federal Republic of Nigeria, 1999, is titled, and includes, ‘Fundamental Objectives and Directive Principles of State Policy.’ The provisions of this chapter of the Nigerian Constitution can also be called Socio-economic rights.

These socio-economic rights are different from the Fundamental Human Rights provided for in Chapter IV of the Constitution, titled ‘Fundamental Rights’. While the later are justiciable in Nigeria, with original jurisdiction to the High Court, the former are, however, unenforceable or non-justiciable.

This Chapter II of the constitution of the Federal Republic of Nigeria, 1999, houses sections (13)-(24) of the constitution, which provides, inter alia, for certain duties of the government for the benefit of the citizenry, as well as duties of the citizens of the state.

Section 18(3), in the Chapter, provides thus: Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide-

free, compulsory and universal primary education
free university education; and
free adult literacy programme

Also, Section 14(b)-(c) of the Chapter provides: ‘the security and welfare of the people shall be the primary purpose of the government; and’ ‘the participation by the people in their government shall be ensured in accordance with the provisions of this constitution.’

Of course, on the part of citizens, the Chapter also provides in Section 24(b), among other provisions of the section, as the duty of every citizen, to ‘help to enhance the power, prestige and good name of Nigeria, defend Nigeria and render such national service as may be required;’

Do you find the aforementioned rights interesting? There are more. However, there is a caveat. This entire Chapter II of the constitution of Nigeria is unenforceable.

It can be further noted that Item 60 of the Second Schedule to the constitution, which is part of the Exclusive Legislative List, provides, therefore, that the National Assembly can legislative on ‘The establishment and regulation of authorities for the federation or any part thereof- 60(a) ‘to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution;’

See also: Definition and meaning of Law

However, the Constitution stipulates that the provisions of Chapter II of the constitution are unenforceable, by ousting the jurisdiction of the Nigerian courts from enforcing any of such provisions. This is according to Section 6(6)(c) of the Nigerian Constitution, which states, inter alia, that the judicial powers vested in the courts of the state ‘shall not, except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any authority or person or so as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directives Principles of State Policy set out in Chapter II of this Constitution;’

Therefore, the provision of Section 6(6)(c) serves as an ouster clause, limiting the judicial powers of the courts as to enforcing the provisions or deciding upon whether the act or omission of any authority or person is in line with the Chapter II of the Constitution.

This provision has further been given judicial authority as it is so held in the case of Attorney General of Ondo State v. Attorney General of the Federation (2002) 9 NWLR Pt.772,and other like case(s).

However, in Olafisoye v. Federal Republic of Nigeria (2004) 4NWLR Pt.864, the court was seen to have shifted from this view, as in the case above, by holding that when Section 15(5) is read together with Item 60(a) of the Second Schedule, it can be justiciable.

Section 15(5), which is part of the Chapter II of the Constitution, provides that ‘The State shall abolish all corrupt practices and abuse of power.’

Arguably, however, it can therefore be postulated that the view the court in Olafisoye v. Federal Republic of Nigeria, should be followed and widened, going forward. Widened in the sense that no other provision of the constitution need be read with the provisions of Chapter II for them to be justiciable.

See also: Natural Law Theory

The provisions of Chapter II should not be read in isolation to that of Chapter IV of the constitution, but rather, as complementary. For a citizen cannot be said to hold and enjoy his right to life, when he does not have access to adequate health care system, good employment, satisfactory shelter and clothing, sufficient education for the century, decent environment, security, and others.

Simply put, the rights of the citizenry provided under Chapter II of the Constitution of the Federal Republic of Nigeria are more relatable to those which are provided under Chapter IV of the same constitution, than divided. In fact, divided they fall.

It should be noted that this kind of interpretation that promotes interrelatedness of human rights is not strange to some other known jurisdictions. In India, for example, while the Directive Principles of State Policy is provided for in Part IV of the constitution of the country of more than a billion citizens, Section 37 of the same chapter provides for their unenforceability.

However, there has been so much judicial activism in India to promote the inseparableness, indivisibility, and interrelatedness of human rights. And this has paid off.

Consequently, section 21 of the constitution of India, which is part of the Fundamental Rights, and specifically provides for right to life and personal liberty of the citizenry, has been interpreted as not just being right to physical life, but also to enjoy life, and that the state must ensure that citizens live a decent and fulfilling life.

Therefore, in the Indian case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal & Anor (1996) 4 SCC 77, in which a man sued the state because he was denied a bed in a hospital which was full, after he had an injury in falling off a train, the Supreme court of India held that the right to life of a citizen included the provision of timely medical care in order to preserve the life.

Such decisions as is seen above should not be unheard of the Nigerian Judicial system, even in more express terms, as so much as possible, in order to bring to existence the provisions of Chapter II of the Nigerian constitution, and explicitly preserve that of Chapter IV.

What more can be said of South Africa, where the Socio-economic rights of the citizenry have been incorporated into the Fundamental rights. Therefore, while Section 27(1), as part of the Country’s ‘Bill of Rights’, provides that ‘Everyone has the right to have access to-’ health care services, sufficient food and water, and social security, Section 27(2) provides that ‘The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.’

It would be of utmost benefit to the state, in line with this issue, if this feat can be achieved in Nigeria. But even now, the legal system of the country can be fashioned to produce outstanding and sustainable development for the country by radical judicial activism, on both the parts of the bar and the bench.

The time is now. We should not stay under the shade of unavailability of resources, but press on to achieve the justiciability of our Socio-economic rights.

God bless Nigeria.

Credits

Wikipedia

Legit.ng

nigeria-law.org

Contract in Law: Definition and Classifications (NG)

N.B. This article is particular to Nigeria.

Definition of Contract

A contract can be defined as an agreement which the law will recognize as affecting the legal rights and duties of parties. Tobi JCA defined contract thus: “An agreement between two or more parties which creates reciprocal legal obligations to do or not to do particular things”.

Also, in (Akinyemi v. Odu’A Investment Co. Ltd), the Supreme Court defined contract according to black’s law dictionary thus:

“An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable under the law”

BARGAIN

As there is freedom of contact, there is also the freedom to bargain which involves Negotiations where both parties presents what he has to the table. Negotiation is necessary in order for both parties’ minds to meet otherwise known as Consensus ad idem. In (Bilante Nigerian Ltd v. Nigeria Deposit Insurance, the court held that: Contract between parties, there must be a meeting of the mind often referred to as consensus ad idem”

Furthermore, before a contract is made, it is always preceded by some forms of bargain by the parties. The court held thus in (Enuga Bawe v. O.B.C Limited):

“…where negotiations is in progress between the parties intending to enter into a contract, the whole of the negotiations must be considered as to determine whether or if not at all, the contract came into being”

In any given case, parties to a contract are at liberty to determine the terms of the contract. In (Nigerian Ports Authority Plc v Lotus plastic Ltd & Anor), the Supreme Court held:
“Parties are free to negotiate the term of their relationship“

However, as the law provides for freedom of contract there is also the sanctity of contract which means contracts are meant to be respected or hallowed. A breach of contract attracts punishment of specific performance or awarding of damages to be paid by the one who breaks the terms of the offer.

It is also noteworthy to mention that every contract is an agreement but not all agreements are contracts.

CLASSIFICATION OF CONTRACTS

The following are classifications of contracts:

1. FORMAL CONTRACT

A formal contract is always in writing. It is also known as contract under Seal or deed. It is executed and given full legal effect by the signing, Sealing and delivering of it by the party executing it.

The seal is the most important feature of a formal contract. It is known as authentication. Historically in Red Wax. Once this is done it become binding on the party who prepares the contract. In (Awojugbagbe light Ind. Ltd v. Chinuawe), the supreme court opined that:

“A deed is binding on the maker of it, even though the parts have not been exchanged, as long as it has been signed sealed and delivered”

A formal contract is useful on land matters.

2. SIMPLE CONTRACT

On the other hand, these are contracts other than a formal contract. The major distinguishing factor between a simple contract and a formal contract is the seal. A simple contract can be in written or oral form (parole). Only a person who has furnished consideration can enforce a simple contract.

In (Odutola v Paper Sack Nig. Ltd), the Supreme Court held that: “A party alleging an oral agreement is duty to prove such agreement to the hilt’’

3. EXPRESS AND IMPLIED CONTRACTS

An express contract is one whose terms or contents are clearly and specifically stated and agreed upon by the parties.
Implied contact on the other hand is that type of contract which its terms are not expressly stated. The court therefore determines in this case whether there is a contract or not considering the conducts of the parties.

In (Brodgen v Metropolitan Railway Co), the defendant was held bound by a contract with the plaintiff in spite of the fact that the defendant failed to sign the document containing the contract. It was established that both parties had been acting on the terms of the unsigned contract over a reasonable period of time.

4. BILATERAL AND UNILATERAL CONTRACT

Bilateral contract is simply exchange of promise between parties. The offeror promises to do something or refrain from doing something in exchange for what the offeror promises to do in return. The consideration on both sides is known as Executory consideration. In Amana Suits Hotels Ltd v. PDP:

“A Bilateral contract consists of the offeror promising to do something else in exchange for the offeree promising to do something in return”

UNILATERAL CONTRACTS on the other hand exists where the consideration consists of an actual performance in return for a promise. The offeror makes a promise and becomes bound by the promise. The offeree is at liberty whether or not to do his own part. Once he does his own part, the offeror must fulfill his promise.

In the famous and celebrated case of Carlill v Carbolic Smoke ball Co. (1892), an advertisement was
made in the newspaper by the defendant to pay 100 euros to anyone, who uses a smoke ball as prescribed
and still succumbed to influenza … The Court of Appeal held that an advertisement which promised certain reward for the performance of certain terms constituted a unilateral offer which can be accepted by anyone who performs the terms.

Contributor: Adedokun Samuel (partly edited by Inioluwa Olaposi)

Historical Theory of Law: Meaning, Explanation, Arguments for and against – Inioluwa Olaposi

German Historical School of Jurisprudence

The Historical theory of law argues and states that law should be a product of the custom of the society.

As we can simply derive from the meaning of the word ‘history’ – the Historical school of jurisprudence is of the opinion that law should be a restatement of the history of the people.

The leader of this school was Friedrich Karl von Savigny, a German jurist and aristocrat.

The notion of the Natural Law School was spreading widely in the 17th and 18th century. Specifically in Europe, going so wide in overthrowing the monarchs.

And what more, creating egalitarian societies. Nevertheless, Savigny, being an aristocrat, was obviously interested in maintaining the status quo.

Friedrich Karl von Savigny

Friedrich Karl von Savigny (1776 – 1861) was a German jurist. He founded the German Historical School of Jurisprudence.

See also: Positive Theory of Law

This school holds the belief that the way to interpret and apply a law is by analysing its historical origin.
Savigny was born in Frankfurt am Main.

He started teaching at the University of Marburg, and was a professor at the University of Berlin from 1810 – 1842.

The tenets of the Historical school of Jurisprudence was announced by Friedrich Karl von Savigny in his work Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (On the Vocation of Our Age for Legislation and Jurisprudence, 1814, 2nd revised edition 1828) and also in an introductory article to the Zeitschrift für geschichtliche Rechtswissenschaft (Journal of Historical Jurisprudence, 1815-1850).

The Historical Theory of Law

According to the dictates of this theory, there is something called Volkgeist – the spirit of the people.

The theory believes that this binds the people of a society together and differentiates them from any other people.
For example, a German has a ‘National Spirit’.

This makes him think like a German, and not like a French, and vice versa.

In like manner, a spirit makes a Nigerian think like a Nigerian, and not like an American.

Apparently, this spirit is a product of the history, custom and life-system of the people.

Therefore, to a Historical law theorist, for a law to be valid, it must be in alignment with the history and custom of the people – which is their spirit.

Arguments for the Historical Theory of Law

A relatively large percentage of the people in a society know their custom.

Therefore, if laws are made according to these customs, the knowledge of law becomes relatively easy.

Based on the point raised above, it also becomes comparatively easy for the people of a society to keep the law. In a way, they can avoid harassment, unlawful practices, or dictatorship.

The points raised supra will give room for a faster development of the society. It will foster economic and political growth.

Arguments against the Historical Theory of Law

One good feature of law is dynamics. This means that law can be changed to suit the prevalent situation in the society.

Unfortunately, since customs are developed overtime, mostly unwritten, and relatively rigid, it is very hard or impossible to change them.

Also, the Historical school of jurisprudence validates a law based on its uniformity with the history of the people, rather than fairness, goodness, and justice.

So, a law can be unjust and tyrannical and still be valid, just because it supports the custom.

How can a theory be based on the assumption that the custom of a people is fair and just?

But the Historical theory of law does. And this is not really the case in real-life practice.

See also: Law definition and meaning

There are some customary rules and regulations that have been used to subject some class of people to the state of servitude. Others have prejudice women in inheritance and labour matters.

More arguments against Savigny’s Historical School of Jurisprudence

Moreover, having laws channelled by the past may hinder the establishment of some desirable radical reforms.

Mind you, the enforcement of these reforms may possess the capacity to transform the society for the better. So much progress may be hindered by following the dictates of the Historical law school.

Furthermore, what should be done in the case of cultural diversities? When there are more than one history or custom pattern in a society, which should the law follow?

In a country like Nigeria, there are about 250 ethnic groups. Following the dictates of the Historical law school is largely impractical.

Which of the customs should our laws follow? Or what happens when the customs clash?

Conclusion

The theory of the Historical School of Jurisprudence is a theory to learn. It stresses the importance of putting the history and custom of people into the making of laws.

And in this regards, it possess some advantages. Nevertheless, it advantages can also turn around to becomes its disadvantages.

In all, I think the definition of the Historical jurist is a weak point to view the definition and validity of law. Nonetheless, it is a strikingly nice one.

References:
‘Introduction to Nigerian Legal Method’ – Edited by Abiola Sanni
“Friedrich Karl von Savigny.” Microsoft® Encarta® 2009 [DVD]. Redmond, WA: Microsoft Corporation, 2008.

Difference between Procedural and Substantive Justice

THE DIFFERENCE BETWEEN PROCEDURAL JUSTICE AND SUBSTANTIVE JUSTICE

Some terms can be really confusing, but a close view will help. This post seeks to explain the difference between procedural justice and substantive justice.

First and foremost, it is expressly important that we get a grasp of what is meant by justice.

Then, we can be in a good position to understand the stand of the two conceptions.

That is, procedural justice and substantive justice.
According to Merriam-Webster Dictionary, justice is the maintenance or administration of what is just especially be the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.

In the case of R v Sussex Justices, ex parte McCarthy, Lord Gordon said.”It is not merely of some importance, but it is of fundamental importance that, justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

See also: Cases for Theories of Law

Procedural Justice, as the name indicates, is a means of achieving justice through following strict procedures of fairness.

It is the idea of fairness in the process that resolves disputes and allocate resources.

Procedural and Substantive Justice: Meaning & Difference

It is primarily concerned with the fairness and the transparency of the process by which decisions are made. Procedural Justice holds that fair procedure leads to equitable outcome.

Hence, seeking justice in accordance with the details or procedures of the law is procedural justice.
On the other hand is Substantive Justice.

It maintains that the law to be used as a measure of justice must be just and fair. Substantive is a product of the word ‘substance’, which denotes – ‘of the essence or essential of a thing’.

So, Substantive justice is therefore the liberal and purposive interruption of laws, in order to do justice. Especially, where a formal, strict, and narrow application of the law will lead to hardship, absurdity, or injustice.

Hence, while Procedural Justice focuses on carrying out decisions according to the statement of the law, Substantive Justice is interested in probing whether or not the laws are just themselves.

In all, Procedural Justice follows the process of fairness. Substantive Justice, on the other hand, checks if the fairness of laws that led to the process.

I hope I helped with this explanation. Of course, you should do more research to get the full gist of what these terms mean.

Don’t forget to subscribe and drop your comment(s). Much love.

Credit:
Merriam Webster Dictionary
‘The Nigerian Legal Method’ by Ese Malemi

Judicial Precedents (Case laws) for Theories of Law (NG)

N.B. This article is particular to Nigeria.

Case Laws (Judicial Precedents) for Law Theories

In answering law questions, it is important that relevant case laws be mentioned to support points. Here are a number of case laws or judicial precedents for various theories of law.

Case law for theories of law

1. Positive Theory of Law

Uwaifo V A.G. Bendel State

In this case, some of the plaintiff’s landed properties were forfeited by an edict made by the state military governor. The Supreme Court held that the courts cannot inquire into the validity of decrees and edicts, as well as the competence of the governor to make them, nor inquire into whether or not a decree or edict was a “legislative judgement.”

Click here to read about the definitions of Law + My definition

2. Natural Theory of Law

Inasa V Oshodi
In this case, the court held that the ejection of an entire family from a land for the misbehaviour of one of the familiar members was not in accordance with natural law. Even if it was the custom, such a custom was contrary to natural justice.

3. Pure Theory of Law

FGN V Zamai Lekwot & four others
In this case, the defendants were sentenced to death, in accordance with a military decree.

4. Utilitarian Theory of Law

Nzekwu V Nzekwu
A custom which permitted that the head of a deceased husband’s family could singlehandedly inherit, or alienate the deceased’s property, while the wife was alive was held to be uncivilized and repugnant to natural justice, equity and good conscience.

Also see: Definition and Meaning of Law

5. Sociological Theory of Law

Agidigbi V Agidigbi
The Supreme Court reaffirmed that the Bini customary rule of inheritance which allows the eldest son to inherit his deceased father’s personal living house is not repugnant to natural justice, equity and good conscience.

6. Historical Theory of Law

Onobruchere V Esegine
The plaintiff sued for a parcel of land which was pledged to the defendants many years earlier. The defendants asserted that the land was sold to them. It was common ground that the land originally belonged to the plaintiffs. The Supreme Court held unanimously that under the principles of customary law, a pledger always retains the title to a pledged land, which cannot be defeated by a pledge. A pledger has a perpetual right to redeem a pledged land, no matter how long the land has been privileged.

7. Realist Theory of Law

R V Holland
The finger of the deceased was injured by the accused. A surgeon strongly recommended that the finger be amputated, but the deceased rejected the advice. The finger was later affected by lockjaw, and the finger was subsequently amputated, but it was already too late and the deceased died from the lockjaw. The accused was charged with murder and he contended that the refusal of the deceased to accept the advice to amputate the finger was the cause of his death. The court rejected this argument and held that the injury inflicted by the accused was the cause of death. The court convicted the accused for murder.

These are some of the many case laws that can be used to support works on or arguments for these theories of law. You could check out several more in law reports, textbooks, journals etc.

Note that these cases may overlap in the theories they apply to. The implication of this is that a case law that can be used to support the Natural theory of law can also be used for the Sociological theory, or Utilitarian theory.
Hence, if you learn these case laws very well, inter alia, writing about the theories of law would be a win-win project for you.

Should you have any question, do not hesitate to drop your comment below.

Credits:

Introduction to Nigerian Legal Method – Abiola Sanni

EZE Malemi – The Nigerian Legal Methods

Classifications of Law should be the Lawyer’s Servant and not his Master

Classifications Of Law as servant Not Master

It is important to know this. That the classifications of law are the lawyer’s servant, not his master.

With simple semantic analysis, the classifications of law are the classes or groups into which laws have been divided or segmented, according to some common relations or attributes.

Some of these classifications of law include public and private law, civil and criminal law, municipal and international law, substantive and procedural law, among others.

It is crystal clear that law have been so classified in order to provide for orderliness in the process of applying them to various kinds of cases.

With these classifications of law at hand, it becomes extremely easy for the lawyer, as well as the court as a whole, to know what is what, and which is which.

In other words, the classifications of law are necessary for a simple, procedural, and even rigid judicial process. The classifications of law are therefore relatively inevitable in the modern judicial and legal process.

Legal Approach: Classifications of Law as servant not Master

However, the various classifications of law should be the lawyer’s servant and not his master. This means that in legal practice, the lawyer should not be so interested in classifying the laws in a legal proceeding, that he forgets his main obligation to either justify or clear his client.

In other words, the lawyer in practice should not find it as a deliberately mandatory exercise to classify the laws in his case under the different categories.

If a lawyer does this, he is making the classifications of law his master, rather than his servant. The lawyer in practice should be able to exercise adequate and knowledgeable mental propensity in the terms of the classifications of law.

See also: Law definitions and Meaning

That is to say, a lawyer in practice knows, merely seeing the fact of a case, the classification(s) of law exhibited in that case without subjecting himself to rigorous mental engagement on classifying the laws in a case.

This is the only way a lawyer can make the classifications of law his servant, and not his master.

Reason: Classification of Law as servant not Master

The reason why a lawyer must make the classifications of law his servant, and not his master, is very simple and straightforward.

One of these reasons is that distinguishing in practice between one classification of law and the other, may not be as clear-cut as it seems to appear in theory. So, a legal case can be subject to more than one classifications of law.

When this happens, it would not be meticulously phenomenal of a lawyer to lunch into distinguishing the various classifications of law.

See also: Natural theory of Law

The reason behind these clashes among the classifications of law is that they all may address different issues that arise from the same event. of course.

Example: Classifications of Law

A very good example of the classifications of law that clashes is the civil and criminal law.

The state designs the criminal law to protect the society, whose inhabitants the civil law also safeguards as a matter compulsion.

Hence, it is not usual to find out that these two classifications of law clash in cases relating to them.

Tuberville V Savage (1669): Classifications of Law

In the case of Tuberville V Savage (1669). Savage was charged for assault by Tuberville and was convicted for the tort of assault (an indication of civil law).

The dictum of the king’s Bench, which stated the requirement for assault and reasonable provocation to assault to be considered.

This precedent was valid for both civil and criminal law for the offence of assault. This case shows, to some extent, how criminal law overlaps civil law.

See also: Pure Theory of Law

Moreover, consider the mock case between Paso and kudiowo on page seventy-seven (77). ‘Introduction to Nigerian Legal Method’, edited by Abiola Sanni.

In this case, Paso is trying to force his late brother’s wife, Kudiowo, to marry him. This is on the basis of divine and customary rules. While Kudiowo opposes the idea, stating a part of the positive law.

Classification of Law as servant, not Master: Not ideal

Here, it would not be ideal for a lawyer to dive into trying to make classifications for each addressed form of law in the scenario.

The lawyer in practice needs to go into the efficiency of more specific issues. Mere classifications of the addressed laws may be a waste of time. Yes, it would not.

The words of the Abiola Sanni put the situation thus:
“…as we can see from the foregoing, there is no water tight classification of law. For example, so much of Nigerian land law is now public law with the enactment of the Land use Act. While the law of taxation is as much private law as it is public”

Conclusion: Classifications of Law should be the Lawyer’s servant.

We can therefore conclude here that the lawyer in practice should not ultimately find interest in classifying the laws in the case before him. Or turn the act of classification into a compulsory act.

But to be so built up to the state that when he merely sees the fact of a case, he could easily infer the related classifications of law. To put them to perfect use. And even to be able to bend the law to his benefit, if need be.

Any attempt outside of this, that makes the act of classifying laws a rigorous and compulsory tack, definitely makes the lawyer a servant of the classifications of law.

This approach is inappropriate. Why? The classifications of law should always be the lawyer’s servant and not his master.

Pure Theory of Law Meaning and Proving as the Most Acceptable Theory of Law

PURE THEORY OF LAW

Out of the multiple theories of law, I personally do love the Pure theory of Law.

I love the concept and reasoning behind it.

So, this post is not just about the Pure theory of Law, but to also prove it as the most acceptable theory of all. Stay tuned.

To start with, it is worthwhile to note that there are several accepted theories concerning the origin of law.

These theories have been propounded over decades and centuries by many legal and non-legal individuals, philosophers, academicians, etc.

A theory is a specific but comprehensive explanation about certain aspects of how our societies work.

That is to say, a theory of law deals with, specifically or comprehensively, how the society regards the statement(s) of law, and how the law is responsible, directly or by necessary implication, for the behaviour of the society.

These philosophers that have propounded certain theories of law have done so according to their various perspectives.

However a man’s perspective or point of view, is based on his sense experience and reasoning (logical and illogical).

Therefore these perspectives, in most cases, are not universally practicable.

So, it is not surprising to realise that every theory of law leaves a vacuum somewhere. Especially when subjected to critical argumentation, conceptual analysis, and universal scrutiny.

Foundation of other Law Theories: Pure Theory of Law

However, the Pure Theory of Law has shown to be the source and foundation of all other theories.

Pure theory of law states that the validity of a law is based this. The fact that a law is created, and can be traced to, a higher norm.

This school of thought, as propounded by Prof. Hans Kelson, says that law is a system of norms.

Hence, a norm can be traced to a higher norm, and then to another higher norm, to another greater norm, until we reach a non-law created entity, called the grundnorm.

In many countries, the constitution is regarded as this grundnorm, which determines that validity of any other norm made by any agency or body in the country.

Nevertheless, as opposed to this celebrated but controversial believe, many other people have argued that the constitution is, and should not be regarded as the grundnorm of any society.

Paraphrasing the words of Abiola Sanni, ‘the fiction that the constitution is the grundnorm is only a legal fiction.’ Note that this argument not to downgrade the Pure Theory of Law, but to prepare the ground for a greater evaluation.

Pure Theory of Law: The Process of Proof

The validity of a constitution is based on its promulgation into law as the act of the people. I will state The state of the grundnorm in due time, in the course of this work.

But as a matter of priority and importance, the reason for the proposition of the pure theory of law as the most accepted theory of law must be treated first, for it is the main aim of this work.

See also: Natural Theory of Law

Now, let me hasten to state this. The most realistic competitor of the pure theory of law is the Natural law school.

So many people will be of the opinion that the natural law is the foundation of every law. You know, including the pure theory of law.

But in a bid to give solution(s) to the problem of ‘multiple consciences’, things get rough. It is undeniable to state that a natural law/rule must be subject to some logical qualities and evaluations. You know, for us to regard it as law.

The Natural theory of Law poses the problem of Multiple Consciences.

Innate Principles as subject to Pure Theory of Law

Therefore, the principles that tells man what is right, fair, and just, are subject to a higher law.

Aside from this, these principles, which we know to be innate to man, are developed by man’s environment and societal socialization.

So, if we give birth to and a raise a child where fellow humans are killed as served as meals, he would see nothing absurd at all in carrying out, at his conscience convenience, the act we call ‘murder.’

See also: Positive Theory of Law

The child will even see it as a law of nature, too bad! So, these innate principles that define fairness, truthfulness, and justice in man are really subject to a higher norm that I call ‘Societal Behaviour.’

Conclusion on the Pure Theory of Law

Without much ado, it is clear that every other theory of law is, either directly or philosophically, a derivative of the Natural Law. And relies on it for its justification.

If we give critical analysis to The Positive law school, Historical law school, and sociological law school, we can trace them all back to Natural law.

And so can the Utilitarian, Realist, and Marxist theories.

Therefore, if the Natural law itself, which can be regarded as the father of all other theories, is a mere system of norms, then it is subject to the imperial Pure Theory of Law.

Referances:

Plato.stanford.edu/entries/lawphil-theory/

Natural and Positive theory of law (comparison and contrast) – Inioluwa Olaposi

Comparison and Contrast of Natural and Positive Theory of Law

These two are most likely the most popular of the theories of Law.

Perhaps, because they are simple and easy to understand.

Nevertheless, they can also be confusing or hard to get.

So, it is important that we know the similarities and differences between the two.

See also: Law meaning

This post is about the similarities and differences between Legal Positivism and Natural Theory of Law.

Differences Between Positive Law Theory and Natural Theory of Law

According to Heinrich A. Rommen, “Every generation, it is said, finds now reason for the study of Natural law.”

This assertion underscores enduring nature of the running battle between natural law and positive law.

Over the years, there has been an undeniable argument. This is among the protagonists of natural law, and those of positive law.

This argument has been based on the answer to a question. “What should determine the validity of a law?”

Should a law be valid because it is moral. Or because it is enacted by a body of persons (legislators) – promulgated and empowered to make such law?

A balance point can be met in the effort of giving these two theories detailed and valid explanation.

But, so many facts have shown that they contrast beyond any reasonable doubt.

And in order to get a good grasp of the differences of these two legal conceptions, a clear understanding of what they mean must be acquired.

Positive Law Theory: Legal Positivism

A law, in accordance to Positive Law, is the rule put, placed, or imposed upon the situations by the ruler.

According to John Austin, who appears to be one of the most prominent protagonists of the Positive Law Theory, in his book titled, ‘The Providence of Jurisprudence Determined,’ he defined law as, “a command set by a superior being to inferior beings and enforced by sanction.”

This definition is based upon his propounded ‘Command Theory of Law.’

According to him, the superior being is sovereign. We may describe the sovereign being as ‘The Uncommanded-Commander.” So, according to positive law, a law is valid because a person or body we empower to do so sanctions it. And such law is binding on all members of the society or state.

Natural Theory of Law

On the other hand, the Natural Theory of Law is a philosophical and legal belief that all humans govern themselves by basic innate laws. Or laws of nature. Which are separate and distinct from the legislated laws. This theory is somewhat an opposite of the positive law theory.

The Chief protagonists of this legal theory include Thomas Aquinas, Zeno, Socrates, Plato, Grotius, Aristotle, etc. It is difficult to give a precise concept of the theory of Natural law, because of the so many theoretical views attached to it.

However, the basic moral principles are unchanging, and they include the following. The idea that basic moral principles validate the law, the existence of Natural rights, and the ideology that just law(s) bind in conscience.

This theory, Natural Law, runs on the idea of perfect law based on equity, fairness, and reason. By which we can measure all man-made laws. And to which they must (as closely as possible) conform.

That is to say, according to Natural Law, any positive law must conform to the innate principles of man.

Differences between Legal Positivism and Natural Theory of Law

Here are some of the differences between the Positive and Natural theory of law.

1. The determination of validity of laws:

While the Positive Law states that a law is valid if a body that we empower to do so makes it. And binding on the subject.

The Natural Law Theory clearly states that a law is valid if and only if it conforms to the innate principles of man.

In the case of Holman V Johnson, the plaintiff sold tea to the defendant in Dunkirk_ France, with the full knowledge that the tea was to be smuggled into England.

According to the dictates of Positive Law Theory, the contract in the scenario above is legal, because in the principles of International law, ‘no country ever takes notice of the revenue laws of another country.’

However, when we subject it to the critical analysis of natural law, this contract is unfair, false, unjust, and should be held null and void.

2. Moral Principles

Natural law is typically based on moral principles, natural order, and ethical codes that people share as human beings. While we expect people to follow positive law as legal rules.

3. Good Reasoning

Natural law is, to a very great extent, based on good reasoning. While Positive law is based on enforced rules, which people follow enforce-fully.

See also: Pure Theory of Law

4. Multiple Conscience Problem

Also, Natural Law theory is subject to the problems of multiple consciences. This is almost impossible with positive law, where laws are relatively constant and definite.

5. While the Natural Law Stresses what we should do, rather than what we do. Positive law stresses what we do, and not what we should do.

Conclusion: Differences between Legal Positivism and Natural Theory of Law

It is noteworthy at this point that in spite of the running battle for supremacy, experience has shown that both the Natural Law and Positive law can co-exist within the same framework.

REFRENCES

1. Natural Law Vs Positive Law (comparison of contents and functions) by 130601052; web.

2. Introduction to Nigerian Legal Method, edited by Abiola Sanni.
3. Web; bartleby.cm-the difference between Natural Law and Legal Positivism Essay.

4. study.com/academy/lesson/natural-law-theory-definition-ethics-examples.html

5. philosophy.hku.hk/courses/law/Positive%20Law%20hnd.html

Positive Theory of Law and Arguments Against It – Inioluwa Olaposi

Positive Theory of Law

The concept of the ‘Positive Theory of Law’ is not a difficult one to understand.

Well, if it is given the simple explanation it deserves.

And for this sake, it is important that the main words that makeup the concept be broken down.

This is to aid our understanding.

The Positive Theory of Law is one of the most popular theories of law.

What is a Theory of Law?

A Theory of law is a codified explanation on what the law should be. Or what we should regard as such. Its origin, its background, its past, its present, and perhaps, its proposed future.

The idea of law itself has contributed more controversies and diversities than clarity in semantic analysis.

I regard a Law, in general terms, as that which expresses, indicates, or imposes a consistent reality.

For details see: Law Definition and Meaning

Once anything that we can perceive by the rational capacity or senses of man is consistent, or consistent by natural phenomenon, that which expresses, indicates, or imposes it is a law.

That is, the main attribute of a Law is what I call ‘consistent reality.’

Legal Positivism: Positive Theory of Law

The word ‘Positive’ is also as ambiguous as it can get.

We can take it to mean having optimistic emotions and involvement, being sure and having no doubt. Something conclusive and irrefutable, encouraging good behaviour, affirmative, having electrical charge, among others.

But as regards the ‘Positive Theory of Law‘, the word positive can be taken to be an offshoot of or closely related to the word ‘posit.’

And in simple parlance, posit means ‘to place’ or ‘to put’.

Hence, making a good use of the knowledge of relating ideas we can say:

“Positive Law’ is that which is put or placed on the people by an authoritative ruler, or a body of rulers.”

The main principle of positive law, and one of the reasons why it is different from the natural law, is that we place it on something or somebody, while the latter is innate and inherent.

Another name for The positive theory of Law is Legal Positivism.

John Austin (1790-1859): Definition of Legal Positivism and Elements

The theory of Positive law is majorly and commonly attributed to John Austin (1790-1859). He is a British legal scholar of jurisprudence analysis.

Austin propounded his highly celebrated but controversial ‘Command Theory of Law’ in his book ‘The Province of Jurisprudence Determined’.

He published the book in 1832. In it, he defined law as:

“A command set by a superior being to inferior beings and enforced by sanction.”

There are elements we can identify from John Austin’s explanation of the concept of law.

First is the identification of a particular ruler, who is sovereign – the superior being.

This sovereign ruler is without legal limitations in his exercise of power. No legal rule binds him whatsoever. He is a dictator.

We can regard the superior being as the ‘uncommanded commander.’

Another element to note is that the subjects of this ruler must accept the act of obeying ‘him’ because of his coercive power to impose sanction.

So, the subjects give their alliance to the ruler out of the fear of punishments.

Positive School: Theory of Legal Positivism

Let’s leave the lapses of John Austin’s principles out of this. And divine The Positive law in simple parlance.

Positive law is simply that law made by anybody, body or bodies, vested with the power to make such law, which is enforced by sanction and have binding effect on the members of the state or society.

From this definition, devoid of any philosophical approach, it can be deduced that the laws and legislations made by the state to govern the affairs of the citizens, noncitizen inhabitants, domestic organizations, and its relation in the international circle are positive laws.

That is to say, the laws that the state makes are positive laws. If a law is not natural, it is most likely positive.

Authorities sanction laws to command prompt and adequate obedience. To create the reality of ‘what is’, and not just ‘what ought to be’ like natural law.

Arguments against Legal Positivism

A concept that possesses merits is prone to relative disadvantages. The positive theory of law is not an exemption.

One of the arguments against the positive theory of law is that it stresses validity rather than rightness.

According to the theory of positive law, a rule is a law once it is made by one vested with the power to make it. Without considering its goodness or badness, rightness or wrongness, or its consequences.

For this reason, the positivist legal method is a ready tool for totalitarianism and authoritarianism.

And if we adhere strictly to the principles of the Positive theory of law, then we make open our doors for dictatorial rulers.

Argument against Positive Theory of Law

Another argument against the John Austin’s school and the positivists’ is that law is not always couched with imperative languages, like ‘shall’ and ‘shall not’.

There is no doubt that some aspects of constitutional law appear like commands to favour the positivist.

See also: Pure Theory of Law

But this does not dispute the fact that some other does not.

Laws about making wills and marriage contracts are certainly not forced on anyone.

A person may choose to or not to make a will, or get married.

Moreover, to postulate that everybody obeys the law just because of the fear of sanction may be a pathetic error.

Legal Positivism: Conclusion

Let me wrap it all up with an authority, Uwaifo V A.G Bendel State.

In this case, some of the plaintiff’s landed properties were forfeited by an edict made by the state military governor.

The Supreme Court of Nigeria held that the court cannot inquire into the validity of decrees and edicts and the competence of the government to make them, nor inquire into whether a decree or edict was a legislative judgement.

What more, than this, could be said of justice by positive law?

Nevertheless, the principle of common law and doctrine of equity exist still.

Thanks for reading. Leave a comment.

Reference:

Nairaland.com

Natural Theory of Law: merits and demerits – Inioluwa Olaposi

Natural Theory of Law

Natural law is a broad and often misapplied term.

It goes around various schools of thought in different disciplines like Philosophy, Science, Law, etc.

In the light of this fact, it is therefore crucial that a clear understanding about the subject-matter be gotten.

This includes the understanding of the keywords, ‘natural’ and ‘law’. So, this post is on the Natural theory of Law.

Meaning of ‘Natural’ in Natural Law

The first word ‘natural’ (adj.) comes from the root word nature (noun).

We may define Nature as the innate characteristics of a thing, among other various definitions.

However, the definition of the second word, ‘law’, is a question that has agitated the minds of scholars and intellectuals over the years.

This is because the word is all-embracing in scope and dimension.

To read my blog post on the definitions and explanation of Law, click the link.

From my own view, which I submit and propose to be generally accepted, “a law is an expression, indicator or imposer of a consistent reality; proven or hypothetical, sanctioned or unsanctioned, true or mythical, harmonious or antagonistic.”

As you should have noticed, this is a wide view approach. Nevertheless, as regards this subject matter, Law is taken as “an expression and indicator of a reality, sanctioned and enforced by a person, persons, body or institution.

From the foregoing, natural law theory is a legal theory that recognises law and morality with deep connections, if not one and the same.

Morality relates to what is right or wrong, good or bad, acceptable or unacceptable, permissible or impermissible.

NATURAL THEORY OF LAW: SIMPLIFIED MEANING

Natural law is a school of thought asserting that certain rights are inherent by virtue of human nature.

Endorsed by nature, traditionally by God or a transcendent source.

And that we can explain this universally through human reason.

Simply, Natural Law theorists, unlike promulgators of positive law, believe that we define human laws by morality, and not by an authority figure.

Therefore, their human nature guide humans to figure out what their laws should be, and to act in conformity with those laws.

Reduced to its simplest form, natural law means what is ‘fair’, ‘right’, or ‘just’. The protagonists of this theory of law include Zeno, Plato, Aristotle, Socrates, Thomas Aquinas, Grotius, and others.

They hold the primary view that there are certain objective principles in everyman, no matter his colour, race or tribe, that tells him what action or any form of act is right, fair and just.

These principles motivate him to do what is good and abstain from what is evil.

Words of Prof. Okuniga: Natural Theory of Law.

Professor Okuniga said in his own illustration. “If ten men from different countries are put in separate rooms, and each of them is asked in the language that he understands, whether it is good tom steal, majority will say no.”

In a nut shell, Natural law refers to the principles inherent to man, which tells him what is fair, good, impartial, right and just.

These principles should serve as the bases for the making of real life laws and orders. Any law made by anybody that is not in accordance to these intrinsic principles is not valid.

I once held_ “The discovery of the positive law is not a shift from the use of the natural law, rather, it is a designed, regular, and enforced reproduction of it.

The reason for positive law is merely to justify the application of natural law.

Hence, when we convict a man, we say to ourselves, “we have done justice,” apparently to satisfy our innate principles, natural law.

Natural law, since its emergence, has bred some major advantages above other schools of thought. Some of these advantages include:

Advantages of the Natural Theory of Law

The development of the concept of equity, human rights, and democracy across the globe.
It is based on reasoning, and not revelation – this allows making it possible for everyone to follow the principles.
It is universal and absolutist; so it is always relevant.
It allows for a clear cut approach to morality and establishes common rules.
The Americans invoked it in their war of independence, as well as the French, during the French revolution.

Disadvantages of the Natural Law Theory

However, Natural Theory of Law has its own undeniable disadvantages, and some of these are heighted below:

It is not always a simple school of thought. The determination of what is right and what is sometimes as hard as anything.
Natural law philosophy stresses ‘what ought to be done’ and not necessarily ‘what is done.’
The theory is based solely on right reasoning, which is a criterion that cannot be verified through empirical scrutiny.
There is what we call ‘the multiple-conscience problem.’ That is to say, different individuals have different explanations for, and determinations of, what is right and what is wrong. As regards this problem, we call the Natural Theory of Law ‘a harlot.’

REFRENCES

1. Introduction to Nigerian Legal Method, edited by Abiola Sanni.

2. WEB: Study.com, Wikipedia, allaboutphilosophy.org

3. English dictionaries, Synonym Antonym Learner {app}

4. Wikipedia