SEL NOTE ON MEANING AND SCOPE OF LAW

MEANING AND SCOPE OF LAW:

Amongst a congregation of various fields of human endeavour, there is no doubt that one
stands out, and that is the subject of law. This adulation is not simply an attempt in
needless controversy, but rather one that is time-tested. If there is discipline that can be
said to be as old as Human existence, it is the subject of Law. However, in all of these years
of existence, the question of What is Law? has remained perhaps the most vexed of all.
It is against this background that several attempts have be made to offer a definition
perhaps an understanding of the subject.

English Jurist espousing the idea of analytical positivism defined law in the positive sense.
For example, John Austin (1790 - 1859) defined Law as, “A rule laid down for the guidance
of an intelligent being by an intelligent being having power over him. Aggregate of rules set
by Men politically superior or sovereign to Men as political subjects. The Command of a
Sovereign backed by threat of sanction”. The Austinian Jurisprudence is that which views
a legal system in which law was seen as a strict command with no room for reason,
morality, or values. Jean Jacques Rousseau while postulating on the Social Contract
Theory however argued that since Law is a product of the general will, it cants be unjust
and we also cannot be subject to it.

Prof.Hart a University of Oxford Professor of Jurisprudence in The Concept of Law (1961)

defines Law as a system of rules, divided into primary (rules of conduct) and secondary ones
(rules addressed to officials to administer primary rules). Thurman Arnold, said it is
obvious that it is impossible to define the word "law" and that it is also equally obvious that
the struggle to define that word should not ever be abandoned. Mr. Justice Oliver Wendell
Holmes defines law in the following words, the prophecies of what the courts will do in
fact, and nothing more pretentious, are what I mean by the law. Kelsen on his part believed
that, although law is separate from morality, it is endowed with "normativity", meaning we
ought to obey it.

On the part of Thomas Hobbes English Philosopher born 1588 said of the role and
function of law in his polemic work ‘Leviathan’ (1651), he defines Law as follows - “Law
is the formal glue that holds fundamentally disorganized societies together”. Blackstone
defined Law in its most general and comprehensive sense as, “a rule of action, that is
applied indiscriminately to all kinds of objects, whether animate or inanimate, rational or
irrational”. Contributing to the debate, G.W. Kiton opines that, “at the very outset of the
discussion of law, we are faced with a difficulty caused by the union of several ideas. It is
obvious that we do not mean the same thing when we speak of the law”.

Roman Jurists defined Law in its ideal sense. For instance, in this wise, Sir John Salmond
defines Law as, “a body of principles recognised and applied by the State in the
administration of Justice”. Thus, in its very technical sense, Law can be used to mean, a
body of rules as binding in a given society on the one hand, and a specific rule applicable
to a branch of human endeavour on the other hand. Examples of the former would include
reference to such as British Law, American Law, Roman Law and Nigerian Law, while the
latter would include subjects like Criminal Law, Law of Evidence, and Law of Contract. In
an attempt to guide against this floodgate of definitions and supremacy of opinions, a
leading Nigerian Scholar, Prof.A.O.Okunniga, submitted by saying that, “No one including
the Lawyer has offered, no one including the Lawyer is offering, no one including the Lawyer
will ever be able to offer a definition to foreclose all other definitions of law”.

The philosophy of Law is to determine what is forbidden and what is not. According to
John Locke, “the individual can do anythong, except that which is forbidden by law”.
Today, Law is used in a sense to represent other things like Acts, Decrees, Edicts, Order,
Statute, Rules, Regulations, Justice, and Jurisprudence. Also, over the years the
understanding of law has also found expression in different powerful legal maxim. Some
of these include - Consensus makes the law - consensus facit legem; Custom is held as law
– consuetude pro lege servatur; Body of law – corpus juris; according to the law – de jure;
The law does not concern itself with the smallest things – de minimis non curat lex; Law
does not arise from injustice – ex injuria jus non oritur; The thing speaks for itself – res
ipsa loquitor; Legal actions does not arise from a dishounourable cause – ex turpi causa
non oritur actio; No one gives what he does not have – nemo dat quod non habet; The court
knows the law – juria novit curia; Let it be done – fiat; No one shall be a judge in his own
case – nemo judex in causa sua; Ignorance of the law is not an excuse – ignorantia juris
non excusat; Let justice be done though the heavens fall – fiat justitia ruat caelum;

Following from the lack or otherwise of a central definition of the subject of LAW, various
Scholars have made very bold attempts to describe the concept and its scope. This effort
at the description of the subject of Law is what has metamorphosed into the several
Schools of Jurisprudence, which sought to analyse in detail the concept of Law. The
philosophy of law is commonly known as jurisprudence. Amongst these are five schools,
namely;

1. Natural Law School

2. Historical School
3. Positivist/Analytical School
4. Sociological School
5. Realist School

NATURAL LAW SCHOOL:

This is the oldest School of Jurisprudence. The concept of "natural law" emerged
in ancient Greek Philosophy alongside the notion of justice, and was later popularised
through the works of Thomas Aquinas. This School of thought believes that every man
has inherent in him an idea of what is “Just, fair, and right”, and as such does not need
man-made laws to regulate his affairs. The foundations of law are accessible through
reason and it is from these laws of nature that human-created laws gain whatever force
they have. A leading light of this School Jean Jacques Rousseau, argues that law reflects
essentially moral and unchangeable laws of nature. Principally, Natural Law
theorists rest their idea on the concept of “REASON” and Law according to them is nothing
but an Ordinance of reason for the Common good. They believe that Man being higher
than other Animals is free, rational, and very capable of acting contrary to eternal laws.
The modern proponents of this School recognise the State as superior to other groups
such as the Church, which for example, controlled England in early times. The greatest
exponent of this School is Hugo Grotius, a German Philosopher and Lawyer.

HISTORICAL SCHOOL:

The greatest exponent of this School is Von Savigny, a German Aristocrat.

Proponents of this School asserts that there is no absolute sovereign that makes law,
rather law for them is an aggregate of the Peoples’ history and shared values. The
Historical School posits that there exists a National spirit called “Volkgeist” in a people
of the same nationality, which distinguishes them from others and at the same time binds
them. According to them before a law can be made, due cognisance must be taken of the
Society it is to govern and to that extent; it is the history of that Society that should shape
such law for it to be regarded as valid.

POSITIVIST/ANALYTICAL SCHOOL:

The growth and development of the Positivist School dates back to the late 18th
and early 19th Century. The central idea of the School is linked largely to the theories of
two outstanding Philosophers of that time, Jeremy Bentham (1748-1832) and John
Austin (1790-1859). However, it was essentially the work of John Austin, himself a
student of Jeremy Bentham that indeed popularised this School of thought. John Austin
defined Law in his controversial work titled “The Province of Jurisprudence
Determined”, as a Command set by a Superior being to an Inferior being, which the
inferior being must obey, and which is enforced by the use of sanctions. Thus, the key
elements of the Austinian theory are as follows;

(a)There is a Sovereign. (b) The Sovereign has no legal limit to the exercise of his
powers (c) The Citizens must obey the command i.e. laws set by the sovereign, while any
breach whatsoever will be met with sanctions.

SOCIOLOGICAL SCHOOL:

This School of Jurisprudence sees law as a social instrument or a tool of social

engineering, which helps to strike a balance between various competing interests in the
society. Man in his natural state is a competitive being, which is bound to bring about
various conflicting interests. The Sociological School sees law as that which engenders
the necessary balance amongst these interests. The greatest proponent of this School is
Roscoe Pound.
REALIST SCHOOL:

The origin of this School of thought is fairly recent, having begun just in the early 20th
Century largely by the works of leading American Jurists. It is also regarded as Legal
realism. This School argues that the real world practice of law is what determines what law
is; the law has the force that it does because of what legislators, lawyers and judges do with
it. The emergence of this School is traceable to a celebrated work of one of the greatest
Jurist in America’s judicial history, Mr. Justice Oliver Wendell Holmes (1841-1935),
where he opined;

“...But if we take the view of our friend, a badman, we shall find that he does not hear
the straw, actions, or deductions, but what he does want to know is what Massachusetts or
English Courts are likely to do infact...I am much of his mind. The prophecies of what the
Court will do infact and nothing more pretentious, is what I mean by Law”. Thus, in the
opinion of the Realist School, the decision of the Courts is what forms the law. It was in
this wise that the Learned Jurist further opined, that “the life of our law has not been logic,
but of experience”.

This was further adumbrated upon by another Scholar, John Gray (1839-1915),
who tried to draw a distinction between law and sources of law. According to him, the
decision of Judges is law while all others such as Statutes, Customs, expert opinions,
public opinions, e. t.c are all sources of law. Thus, the two greatest exponents of this
School are Oliver Wendell Holmes and John Gray.

In recent times, the list of the Schools of Jurisprudence has further been expanded to
include the work of the contemporary philosopher of law Ronald Dworkin, who has
canvassed what is known as “Constructivist Theory of Jurisprudence”, which can be said
to be a middle ground between the Natural law theory and the Positivist Theory of
Jurisprudence

IMPORTANCE AND MAIN FUNCTIONS OF LAW IN THE SOCIETY

1. Definition of the State and its government: The State is established by the Law as
well as its various tiers of government. The Law in this regard is the Constitution
and this defines all of her power and authority over the citizenry. Thus, Section
2(1) provides that “Nigeria is one indivisible and indissoluble sovereign state to be
known by the name of the Federal Republic of Nigeria”. Section 2(2) goes further to
say, “Nigeria shall be a Federation consisting of States and a Federal Capital
Territory”. Also, the powers of the various arms of government making up the
Federation are provided for in Sections 4, 5 and 6.

2. Maintenance of order in the Society: Another principal function of law is to

maintain order in the society. Obviously, where there is no law, anarchy becomes
the order of the day. It is in this light that law seeks to regulate human conduct and
at the same time ensure a balance in various competing interest.
3. The enthronement of Justice: A second function of law is to ensure that Justice is
done in all situations. It must be noted that law is not and end itself, rather, it is a
means to an end, and that end is nothing but the course of Justice.

4. The safeguard of moral values: Though Law and Morality are two concepts whose
inter-relationship still continues to generate unending debates, it still cannot be
gainsaid that one of the functions of law in the society is the inculcation and
safeguard of moral values. Though the idea of what is morally right or wrong itself
is a matter of subjective opinions, however, there are still generally acceptable
positions on thing that the society considers right and those that it abhors. One
thing that can be said is that the law helps to provide appropriate framework in
the safeguard of cherished moral values.

5. The establishment of government and legitimacy: Another function of law is that,

it is the basis upon which every government is established and in which every
government derives its power and authority. For example, Section 1, 2, and 3 of
the Constitution of the Federal Republic of Nigeria, 1999 states that the provision
of the Constitution is the only means of establishing government. Without the law,
every government that seizes power will at best be a tyranny e.g. Military
governments.

6. The guarantee of freedom and the safeguard of human rights: It is law that
guarantees the freedom of every man and the same law, where it is breach denies
any one found guilty the same freedom. It is equality in recognition of this
inalienable entitlement that the concept of human rights was fashion, which only
the law guarantee. For example, Section 33 – 45 of the Constitution of the Federal
Republic of Nigeria, 1999 contains detailed provisions of fundamental human
rights.

MAJOR BRANCHES OF LAW

1. Civil Law and Criminal Law

2. Substantive Law and Procedural Law

3. Private Law and Public Law – Public Law includes such areas as Criminal Law,
Constitutional Law, Law of Evidence, while Private Law includes areas such as Law
of Contract, Law of Torts, Land Law, e.t.c

4. Municipal/National Law (Private International Law) and International Law

(Public International Law).

LAWS APPLICABLE IN NIGERIAN COURTS

1. The Constitution: The Nigerian State is governed by a Constitution referred to as,

“The Constitution of the Federal Republic of Nigeria, 1999”. The Constitution
is the principal legislation in the country and provides for a wide range of powers
for the three arms of government namely the Executive, the Legislature, and the
Judiciary. The Constitution is made up of a preamble, 320 Sections, and 8 Chapters.
Key provisions of the Constitution include: Section (1)(1) which provides that,
“This Constitution is supreme and its provisions shall have binding force on the
authorities and persons throughout the Federal Republic of Nigeria”. This section
provides for the supremacy of the Constitution. Section (1)(2) which provides
that, “The Federal Republic of Nigeria shall not be governed, nor shall any persons
or group of persons take control of the Government of Nigeria or any part thereof,
except in accordance with the provisions of this Constitution”. Also is Section (1)(3)
which states that, “If any other law is inconsistent with the provisions of this
Constitution, this Constitution shall prevail, and that other law shall, to the extent of
the inconsistency, be void”.

Section 14(2)(a) provides that “sovereignty belongs to the People of Nigeria from
whom Government through this Constitution derives all its powers and authority”.

In addition, the power of the Legislature is provided for in Section 4, the Executive
in Section 5, and the powers of the Judiciary in Section 6. Nigerian operates a
bicameral legislature made of the Senate, with 109 Senators and the House of
Representatives, with 360 members. The Executive arm of government is made of
the President, Vice-President and other appointed Ministers, which must not be
more than two from each state of the federation. The Judiciary is made up of a
hierarchy of Court represented as follows:

(a) The Supreme Court of Nigeria; See Section 230; Not more than 21 Justices;
Constitution 5 (Appellate) & 7 (Original); Chief Justices & other Justices – 15years.
(b) The Court of Appeal; See Section 237; Not less than 49 Justices; Constitution
3 (Appellate) & 5 (Original); President & other Justices 12 years.
(c) The Federal High Court; See Section 249; Constitution 1 Judge; Judges 10
years.
(d) The High Court of the Federal Capital Territory, Abuja; Section 255
(e) A High Court of a State; See Section 270; Constitution 1 Judge; Judges 10 years.
(f) The Sharia Court of Appeal of the Federal Capital Territory; See Section 260.
Abuja;
(g) A Sharia Court of Appeal of a State; See Section 275; Constitution 3 Kadis.
(h) The Customary Court of Appeal of the Federal Capital Territory,
Abuja; See Section 265.
(i) A Customary Court of Appeal of a State; See Section 280; Constitution 3 Judges.
(j) Such other courts as may be authorised by law to exercise Jurisdiction on
matters with respect to which the National Assembly may make laws; and
(k) Such other court as may be authorised by law to exercise jurisdiction at first
instance or on appeal on matters with respect to which a House of Assembly may
make laws e.g. Magistrate Courts, Customary Courts, District Courts, Area Courts,
etc.
 Chapter 2 provides for Fundamental Objectives and Directive Principles of
State Policy, Chapter 3 contains provisions on Citizenship; Chapter 4 is on
Fundamental Human right. Section 33 - Right to life; Section 34 – Right to Dignity
of the Human person; Section 35 - Right to Personal Liberty; Section 36 – Right
to Fair Hearing; Section 38 – Right to freedom of thought, conscience and religion;
Section 39 – Right to freedom of expression and the press; Section 40 – Right to
Peaceful Assembly; Section 41 – Right to freedom of movement; Section 42 –
Right to freedom from discrimination.

Section 36 (5) provides that “Every person who is charged with a criminal offence
shall be presumed innocent until he is proven guilty”.

2. The Criminal Code: The Criminal Code is the body of law that define offences and
provides for the appropriate sanctions or penalties. The Criminal Code operates
only in the southern part of Nigeria.

3. Penal Code: The Penal Code is equally a body of laws that provides for a wide
range of offences. The Penal Code operates only in the Northern part of Nigeria.

4. Customary Laws/customs/traditions: These are largely unwritten laws that

basically define the way of life of a people and vary from place to place. It usually
evolves out of the totality of the Peoples’ customs, values, traditions and age-long
customs.

5. Acts of the National Assembly

6. Laws of State House of Assemblies

7. Local government bye-laws

8. Rules of Court.

CRIMINAL LAW

Criminal Law is that branch of Law that defines crimes and offences, with the
corresponding sanctions and punishment. A crime can be a direct commission of an
act, or a deliberate omission to act. Every crime is an infraction against the State,
which is frown at, with a view to regulating human conduct and maintaining order in
the society. It is in this regard that a system of Criminal Justice Administration is put
in place to ensure a smooth ordering of the Society. Essentially, the Criminal Justice
System is made up of three (3) key Institutions, namely the Police, the Courts, and the
Prison.

Section 2 of the Criminal Code defines an Offence as an act or omission which renders
the person doing the act or making the omission liable to punishment under this code,
or under any Act or Law.
Elements of an Offence:

The major element of an Offence is two (2):

1. Actus Reus (Physical element) – This is the act of commission or omission i.e the
physical act that is carried out by the Offender

2. Mes rea (Mental element) – This is the criminal intention that was first formed
in the mid, which subsequently generated the ultimate commission of the offence.
It is simply the mental element of the offence.

Under the Law, for a crime to be said to have been committed, both the mens rea
and the actus reus must co-exist.

Section 3 provides for three Classifications of Offences, namely:

1. Simple Offences – Any Offence, whose term of Imprisonment is from a day to 6

months, is referred to as a Simple Offence.

2. Misdemeanours – Any Offence, whose term of Imprisonment is from 6 months

to 3 years, is referred to a Misdemeanour.

3. Felonies – Any Offence of a term of Imprisonment of 3years and above is

referred to as a Felony.

Section 4 criminalises an attempt to commit an offence.

Section 7 – Principal Offenders

When an offence is committed, each of the following persons is deemed to have

taken part in committing the offences:

1. Every person who actually does the act or makes the omission which
constitutes the offence

2. Every person who does or omits to do any act for the purpose of enabling or
aiding the commission of the offence

3. Every person who aids another in committing the offence

4. Every person who counsels or procures any other person to commit such an
offence.

Section 10 – Accessories after the fact -

Section 22 – Ignorance of the Law is not an excuse.

Section 27 – Presumption of Sanity. Every person is presumed to be of sound mind

and to have been of sound mind at any time which comes in question, until the
contrary is proved.
Attempt to murder – Life imprisonment

Accessories after the fact to murder – Life imprisonment

Written threat to murder – 7 years

Manslaughter – Life imprisonment

Aiding suicide – Life imprisonment

Attempting to commit suicide – One imprisonment

Defences:

Insanity – Section 28

Intoxication – Section 29

Section 30 – A Person under the age of seven years is not criminally responsible
for any act or omission. A male person under the age of twelve years is presumed
to be incapable of having carnal knowledge.

Section 83 – Affray – Any person who takes part in a fight in a public place is guilty
of a misdemeanour and is liable to imprisonment for one year.

Section 249 – Idle and disorderly persons – liable to Imprisonment for one month

Section 250 – Rogues & Vagabonds – liable to imprisonment for 3 months.

Section 251 – Bringing contempt to Uniform – liable to imprisonment for 3

months.

Aims of Criminal Punishment:

1. To help regulate human conduct.

2. To serve as a deterrence to others.

3. To serve as a correction to an Offender

4. To help rehabilitate the Offender

5. To serve the course of Justice