TOPIC ONE

THE PHILOSOPHY OF LAW

MEANING, NATURE, FUNCTIONS AND CLASSIFICATION OF LAW
A. MEANING OF LAW

It is popularly held that: ‘different strokes for different folks.’ Put in another way,
‘beauty lies in the eyes of the beholder.’ This applies to the definition of law. An
acceptable definition of law has defied the ages. This should not be seen as a
deficiency; it rather reflects the diversities in human thoughts and experience.
Thus, ‘one man’s food is another man’s poison.’ When it comes to defining law,
so many variables come to play. As we will see, each of these variables is time
tested and empirical.

Having said that and arising from several authorities in the legal sphere, law
generally speaking means:

a. A rule.
b. A rule of behaviour or code of conduct.
c. The rules and regulations of a particular country.
d. The rules usually made by the legislative arm of government which guides
and regulates the affairs and conduct of persons, organizations,
institutions (government and non-governmental). The Legislature can also
delegate legislation.
e. The whole system of rules of a country without which there would be a
state of lawlessness sociologically known as anomie.

Despite several well-intentioned definitions of law, there is no authoritative and

universally acceptable definition of law. This is because authors, jurists,
philosophers and commentators see law from different perspectives and through
different lenses.

Below are some of such definitions:

- Law is: “what officials do about disputes in the law.” Karl N. Llewellyn.
- Law is: “The whole reservoir of rules on which judges draw their
decisions.” Herman Max Gluckman.
 - “It is the rule of action which is prescribed by some superior and which the
inferior is bound to obey.”Sir William Blackstone.
- “The collective term for the rules of conduct for living in a legal order.”
Wortley.
- Professor Salmon J.W “The body of principles recognized and applied by
the state in the administration of justice.”

LEGAL THEORY/ SCHOOLS OF LEGAL THOUGHT

Owing to the fact that there is no universally agreed definition of law, several
schools of legal thought or jurisprudential schools have emerged seeking to
define law. We will consider six of them that are relevant to our discussion and
we will do so under three sub-heads: propositions and proponents, modern
influences/relevance and criticisms.

1. NATURAL LAW SCHOOL

It is the earliest and oldest school of legal jurisprudence. This school of legal
thought believes that law originates from a Supreme Being (God). This school
was deeply influenced by early Christian philosophers. Later, the Greeks,
Sophists and the Romans introduced moral and ethical dimensions to the
discussion on law.

Propositions

The natural law school believes:

1. That God Almighty is the creator of heaven and earth and so He is

the ultimate ruler of all creations. In this regard all laws are derived
from God.
2. That God’s laws are divine, eternal, moral, fair and cannot be
changed.
3. That every thinking person could observe and see God’s Law.
4. That the laws of God are a pattern and example to man; showing
man the good qualities which God desires of man.
5. That man-made law is contrary to God’s law.

Proponents

1. Aristotle.
 2. Zeno.
3. Marcus Tullius Cicero.
4. St. Augustine of Hippo.
5. St. Thomas Aquinas.
6. Justinian.

Modern Influences/Relevance

The natural law school has influenced the law in the following ways:

1. In the law of contract, parties are meant to honour their agreements

just the way God keeps His promises.
2. In the law of tort, the “Neighbour principle” as stated by Lord Atkin
in Donoghue V. Stevenson (1932) AC 512 was derived from the
teaching of Jesus Christ in Luke 10: 30-37.
3. The Criminal Code Act (Southern states) and the Penal Code Act
(Northern states).
4. The Economic and Financial Crime Act cap. E1, Laws Federation of
Nigeria (LFN) 2004.
5. Fundamental Human Rights enshrined in Chapter IV of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended);
see especially sections 33 – 46.

Criticisms

1. The natural law school’s use of God’s law to evaluate man made
laws is not a logical analysis. This is because faith and facts are
asymmetrical.
2. The natural law school places emphasis on “what ought to be”and
not “what is.”
3. The natural law school believes in equity and fairness and in
exercising one’s conscience. However, man’s conscience can be
tainted.
4. Their views are idealistic and subjective.

2. POSITIVIST SCHOOL OF LAW

This school of law is further divided into two:

  The command theory of law:
This theory posits that law is the command of the sovereign handed down
to the inferior to obey. Without obedience, sanctions follow.
 The pure law theory:
They see law standing apart from any other concept or discipline. They
hold that law should not be mixed with any other concept but stand as an
independent normative system.

Propositions

They believe that law is made by a sovereign agent or a superior agent.

This superior agent is itself a creation of law e.g. the parliament or House of
Assembly. They hold that law is made and not perceived in this sense of morality
and religion.

Proponents

i. Command theory of law.

John Austin is considered as the father of the positivist school of law. His
popular statement is “Law is commandment made by a superior to be obeyed by
an inferior.” He also credited to have stated that, “People have a duty and
obligation to obey the law or else sanctions follow.”

ii. Pure law theory

Hans Kelsen is considered the father of the pure theory of law. He stated that
“Law is a norm that tells us what to do and what not to do”. He sees law as a
standard code of behaviour.

Modern Influences/Relevance

1. Laws are not static but dynamic. They can be amended to suit
current realities.
2. This school created the concept of law a making body.
3. This school of thought considers law as it is and not as it ought to be.
They are not interested in conjectures or speculations.
Criticisms

1. A law making body may make unjust, selfish, partisan and draconian laws
which remain in force.
2. This school of law also states that sanctions accompany non-observance of
laws. However not all laws attract sanctions for non-observance.
3. This school of law also supports the reign of dictators and despots as they
see law as a command of a superior.

3. SOCIOLOGICAL SCHOOL OF THOUGHT

Propositions

The sociological school considers law in the following terms:

1. That every society has norms, values, ways of life and acceptable
conduct and these are sources of law.
2. Law is a set of norms and values which are acceptable and which
regulate any given society.
3. Societal norms dominate and regulate the life of any society even
though such norms are not formal enactments.
4. Social norms, ethical values or living laws are not static.
5. The parliament is expected to know the normative values and way
of life of the society in order for it to make laws that reflect the
wishes of the society and meets the expectation of the society.

Proponents
1. Eugen Ehrlich (considered the father of this school)
2. Auguste Comte
3. Emile Durkheim
4. Max Weber
5. Roscoe Pound (October 27, 1870-June 30, 1964). He was an American
legal scholar and educator. He was Dean of Harvard Law School
from 1916-1936).

Modern Influences/Relevance
a. The Federal Character Commission Act cap. F7, LFN 2004
b. Customary Land Tenure System.
 c. The Marriage Act, cap.M6 LFN 2004.
d. Same Sex Marriage (Prohibition) Act 2013.
e. National Drug Law Enforcement Agency Act, cap. N30 LFN 2004.

Criticisms
1. It is difficult if not impossible to ascertain what societal values are due to
pluralistic views and values.
2. There is no ascertained institution that formulates societal values.
3. Not all laws reflect the norms and values of the society. Some laws are self-
serving and el itist e.g. the Life Pension Laws of some states in Nigeria for
governors and deputy-governors.
4. Values and norms are a matter of morality which is relative according to
societies.

4. THE HISTORICAL SCHOOL OF THOUGHT

Propositions
1. The historical school of thought states that law is a product of the evolution of
a people within a period of time.
2. They hold that laws should be made in consideration of the past rather than
concentrating only on the present or the future.
3. That history timelines should be the major basis for law making.

Proponents
a. Fredrick Karl von Savigny.
b. Sir Henry J.S Maine.

Modern Influences/Relevance
1. The Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. The Penal Code Law (adapted from the Penal Code Law of Pakistan and
Sudan for Northern Nigeria)
3. The EFCC Act was based on the national disgrace associated with corruption.
4. Trafficking in Persons (Prohibition) Law Enforcement & Administration Act,
2003.

Criticisms
1. It emphasizes the past rather than the future. It does not promote legal
activism.
2. It leads to repetition of mistakes.
3. It emphasizes history rather than building institutions.

5. THE REALIST SCHOOL OF THOUGHT

Propositions
1. They assert that law is what the court interprets it to be.
2. They hold that the statutes only become sources of law when a judge
pronounces on them.
3. That the way of life, the upbringing, education, preference and social training
of a judge determine his interpretations of the law and influence his decisions.
4. That a judge always has a choice between alternatives when it relates to
words, their meanings and application.
5. The role of the judge goes from deductive reasoning to discretion and
inductive reasoning

Proponents
1. Oliver Wendell
2. Karl N. Llewellyn

Modern Influences/Relevance
1. Judicial precedent. Earlier decisions are used for subsequent one based on the
same set of facts.
2. Independence of the judiciary. The role of the judiciary is elevated.
3. Laws must be pronounced upon or interpreted by judges to be enforced or
applied.

Criticisms
1. It focuses undue attention or emphasis on the judges and the judiciary.
2. Judicial precedent if followed sheepishly leads to repetition of mistakes made
in previous cases.
3. Judicial precedent hampers the development of the law.
4. The discretionary powers of a judge may be abused or misapplied.
6. THE MARXIAN SCHOOL OF LAW

Proposition
1. They see law as an instrument in the hands of the bourgeoisie to oppress the
proletariat.
2. They state that law is created by a dictator to further the cause of the ruling
masses.
3. They see law as an illegal tool of oppression and subjugation.
4. They believe that law should not be obeyed except in communist states.

Proponents
1. Karl Max.
2. Frederick Engels.

Modern Influences/Relevance
1. Fundamental human rights due to class struggle.
2. The Federal Character Commission Act.
3. The Niger-Delta Development Commission Act.
4. Creation of states and local government.

Criticisms
1. Their thoughts promote chaos through a state of lawlessness.
2. It is antagonistic to the perceived status quo but gives no alternatives to
disobeying the law.
3. It focuses on class struggle and does not take into cognizance other social
factors like religion, history, economics, politics, education, etc.
NOTE:
1. No school of legal thought or philosophy is complete in itself.
2. They all represent certain idiosyncrasies and thought patterns.
3. They do not sufficiently define or describe law in a functional manner.
4. They all have shortcomings and inadequacies.
5. A balanced view of the definition or description of law will ultimately contain
ingredients from each school of law.

B. NATURE OF LAW
By nature of law, we mean the innate or intrinsic characteristics of law. They can
be summarized thus:
Law is Normative
Law reflects the norms and values of a given people at a particular point in time.
Though law differs from morality, it is usually persuaded by mores and values.
It is the acceptable norms of society that essentially make up any law.

Law is prescriptive

Law prescribes acts, behaviour, conducts which are legal or illegal. It also
provides for punishment or sanctions where it is applicable.

Law is dynamic

Law changes with society or times. Therefore, laws can be amended to suit
prevailing situations.

Law is territorial in nature

Law regulates the conducts of persons within a particular geographical location.

For instance, the laws in Kaduna State do not apply in Anambra State and vice
versa.

Law is made by a recognized authority

In Nigeria, the National Assembly and State House of Assembly are empowered
by section 4 of the 1999 Constitution of the Federal Republic of Nigeria (as
amended) to make laws according to their legislative competence.

The National Assembly makes laws about matters in the Exclusive Legislative
List while a State House of Assembly makes law from the Concurrent Legislative
List.

C. FUNCTIONS OF LAW
1. Law as a code of conduct achieves order in the society. Law regulates the
conduct of persons and institutions in the society.
2. Law specifies the structure, pattern, frame work and order for all aspects
of life.
3. Law prohibits self-help and jungle justice by vesting in the courts the
power to hear and determine cases.
4. Law is a means for the resolution of disputes in the society. Law
guarantees how disputes are resolved in a manner which promotes peace.
5. Law guarantees rights, freedoms and creates duties for individuals and
organizations.
6. Law ensures order and peace in a society because without it, life would be
short nasty and brutish as stated by Thomas Hobbes.
7. Law is an instrument of political, economic and social change and stability.
Law can be used to restructure, change or improve existing orders and
systems in the society. See section 1(2) of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended).
8. Law is used to establish law enforcement agencies, institutions, justice
administration system, which in turn enhances the functioning of law.
9. Law grants remedies and justice for those who are aggrieved.
10. The law is a means of achieving stability and equilibrium in the society as
it creates offences, wrongs and punishments or sanctions.

D. CLASSIFICATION OF LAW

Common law and equity

Common law is the set of laws introduced into England in 1066 by the Normans.
Before then, the English did not have a unified system of laws. The Normans
codified and developed a system of laws that become enforceable in England.

Equity on the other hand emerged from the Chancery Division of the
King’s/Queens’s Court. K.B means King’s Bench; Q.B means Queen’s Bench and
Ch.d means Chancery Division. Equity emerged as a ‘child of necessity.’ In the
course of time, the common law worked hardship to litigants due to its rigidity.
This created dissatisfaction and led to petitions before the King or the Queen for
a review of judgments from the Common Law courts. The King or the Queen
referred such petitions to the Chancery Division headed by a Lord Chancellor
who was a priest. The priest was referred to as “the keeper of the King’s
conscience.” He applied natural justice, common sense, religious injunctions and
good conscience. This led to the development of the doctrines of equity or the
maxims of equity. With time, litigants first approached the equity courts instead
of the Common Law courts.

There was now conflict between Common Law and Equity in terms of
application. This was the issue raised in the Earl of Oxford’s case (1615) 1 Rep Ch.1.
In the latter case, the British Crown or Monarch, granted Merton College,
Oxford, England, a lease of Covent Garden for 72 years at a rent of £9 a year.
About 50 years later, the College sold the lease to the Earl for £15 a year. Later
on, the College retook possession of a part of the garden on the ground that a
statute of Queen Elizabeth I prohibits the sale of ecclesiastical and college lands
and that the conveyance to the Earl was void. The Earl sued to eject the College
from the land. The common law judge found in favour of the college, on the
ground that the statute was binding on the parties. The Earl filed an action in
Equity in the Court of Chancery for relief and Lord Ellesmere granted it, on the
ground that the claim of the college was against all good conscience, this brought
common law and equity head-to-head and King James I intervened and ruled in
favour of Equity and held that whenever there was a conflict between Common
Law and Equity, the latter would prevail. This was a royal fiat without the
backing of any law.

However, by the Judicature Acts 1873-1875, the Court of Chancery and the
Common Law courts were required to administer common law and the
principles of equity concurrently. Most importantly, sections 36-44 of the
Judicature Acts of 1873-1875 provided that whenever there was a conflict
between Common Law and Equity, Equity would prevail. In Nigeria and
particularly by section 15 of the National Industrial Court Act, 2006, the National
Industrial Court of Nigeria (NICN) provides that in any event that there is a
conflict between the rules of Common Law and the principles of Equity, the
principles of Equity shall prevail.

The maxims of equity are summarized as follows:

1. Equity acts in personam.

2. Equity acts on the conscience.
3. Equity does not suffer a wrong without a remedy.
4. Equity follows the law.
5. Equity looks at the intent rather than the form.
6. Equity looks on that as done which ought to be done.
7. Equity imputes an intention to fulfill an obligation.
8. Equity regards balance of convenience.
9. Where there are equal equities, the law prevails.
10. Where there are equal equities, the first in time prevails.
11. Equity like nature does nothing in vain or equity does not act in vain.
12. Equitable remedies are discretionary. Equitable remedies include; specific
performance, injunctions (preservative and mandatory), subpoena, rescission,
estoppel, tracing etc.
13. Delay defeats equity.
14. He who comes to equity must come with clean hands i.e. he/she who seeks
justice must himself/herself be just.
15. He who seeks equity must do equity i.e. he/she who seeks equity must
himself/herself do justice.
16. Equity never wants for a trustee.
17. Equity aids the vigilant not the indolent.
18. Equality is equity. Hence, equity does not permit double portion.
19. Equity will not aid a volunteer.
20. Equity will not permit a statute (law) to be used as a cloak for fraud.

Equity also provides an aggrieved person with some reliefs or remedies that do
not exist under the Common Law. They include:

1. Specific performance.
2. Injunctions: Interim, Interlocutory, Mandatory, Mareva, Anton Piller etc.
3. Rescission.
4. Estoppel.
5. Tracing.
6. Prohibition.
7. Mandamus.
8. Certiorari.
9. Declarations.
10. Reinstatement.
11. Writ of habeas corpus etc.

Civil Law

Civil law consists of all laws which regulate the affairs of people in a particular
society which are private and public in nature and not punitive in nature e.g.
Law of contract, torts, constitutional law, commercial law, family law etc. Civil
law is interested in compensating aggrieved parties and the declaration of rights
and liabilities of parties.

Criminal Law

Criminal law is that part of law which creates offences or crimes and prescribes
the necessary punishments or fines e.g. Criminal Code Act/Law, Penal Code
Act/Law, National Drug Law Enforcement Act, EFCC Act, etc. Criminal seeks to
achieve punishment, reformation and deterrence in society.

Public law and private law

Public law deals with laws which regulate the affairs of the whole society. It
regulates aspects of the law which affects the generality of the people e.g.
constitutional law, environmental law, criminal laws, laws relating to drugs and
trafficking.

Private law on the other hand deals with aspects of law which regulate personal
or individual rights and duties e.g. law of contract, law of torts, commercial law,
family law etc.

NOTE:

1. Some aspects of law may be private but still regulated by public laws e.g.
marriage, sale of goods, banking, business registration etc.
2. An individual may enforce a public right in certain instances e.g. the tort of
nuisance.

Procedural and substantive law

Procedural law deals with laws which set out and create procedures, processes
and stages for doing certain things e.g. Criminal Procedure Code (for the
Northern states), Criminal Procedure Act (for the Southern states), Evidence Act,
Companies Winding Rules, Fundamental Human Rights Enforcement Procedure
Rules, Matrimonial Causes Rules etc.
Substantive law on the other hand deals with laws which create wrongs, crimes,
rights, privileges, etc. Examples include: Criminal Code Act, Penal Code Act,
Marriage Act, the Companies and Allied Matters Act, Value Added Tax Act,
Cyber Crimes Prevention Act etc.
Written and Unwritten laws
Written laws are laws which are codified or documented. Reference can be made
to them for example the Constitution of the Federal Republic of Nigeria, 1999 (as
amended), Penal Code Act, Criminal Code Act etc. Written laws are products of
a recognized body saddled with the mandate of making laws for example the
National Assembly and State Houses of Assembly. Such laws may be amended
or repealed.

Unwritten laws are laws which though in force, cannot be traced to any
document. They are subject of proof or proclamation by the courts. They include
conventions and practices which have over time gained the force of law.
Unwritten laws are mostly found in countries where tradition is upheld e.g. the
United Kingdom.