Classification of law in Nigeria

 

Law can be classified in different categories. They may be common law and equity, civil and criminal, public and private, substantive and procedural, written and unwritten. These different classes of the law have their unique features yet they overlap.

In this article, we shall conclude our discussion of the different classes of law. At every stage, you are advised to compare and contrast with other classes you have already learnt more particularly your local laws.

The objective of this article is to widen the students’ scope of the idea of law to encompass not only its definitions, and connotations, but also its classes or types. It is hoped that the students should be able to compare and contrast each class with the law in pre-modern and in modern Nigeria.

Also read: 13 Functions of Law in Society

Classes of Law

1. Public International Law: This includes Conventions, Treaties, laws which regulate the relationships among sovereign states. It regulates among states, matters of trade and economic activities, Postal and Telecommunication, Civil Aviation, Law of the Sea, (including Maritime Law); War, Diplomatic relations among others.

2. Private International Law: Also referred to as “Conflict of Laws” A system of law, which regulates matters, which possess some international flavour or foreign element between private persons.

Examples are the Rules, which the Court applies in dealing with matrimonial cause involving citizens of different countries or international trade between persons of different countries. Private International law defines the appropriate law applicable to person of different nationalities, or in a cause having some foreign element, or by which issues of jurisdiction, rights and duties are determined. It prescribes the conditions for determining the competency of court, recognition of foreign judgement and its enforcement.

3. Positive Law: The term literally means: law established by human authority. ‘All law is positive that is not natural’. Positive law is a system of law promulgated and implemented within a particular political community by political superiors, as distinct from moral law or law existing in an ideal community or in some non-political community. Typically, it consists of enacted law.

4. Municipal Law: Whole law or whole body of law of a state; distinct from a rule of International Law. Blacks Dictionary calls it the Ordinances and other laws applicable within a city, town or other local government entity. It is the internal law of a nation as opposed to international law.

5 Public Law: Laws regulating the relationship between individual and governments; individual and the State; one state and another or state and federation.

It includes:

1) Constitutional Law: This is concerned with the structure of the Legislative, the Executive and the Judicial Organs within the state and their relationships with one another.

2) Administrative Law: This is concerned with the body of general principles governing the exercise of powers and duties of public authorities (ministerial and local government agencies) within the state and their relationship with individuals.

3) Criminal Law: Criminal law which is the principal law of crimes and criminality.

4) Public International Law, Supra.

This deals with the law of nations and international organizations.

 

Private Law

Private law regulates the relationships between individuals rather than between the state and individuals. Among its numerous branches are: Commercial papers;

Law of Property

Laws of Agency

Law of Trusts Law of Contract, Law of Tort Family law

The most important branch is the law of contract.

Law regulating breach of duty fixed by law towards one another, which breach gives rise to civil action.

Also read: What is Philosophical School of Thought on Law?

Received Law

In relation to Nigeria, Received Law implies Common Law of England, doctrines of equity, statutes of general application in force in England as at 24 July 1874 (later varied to 1st January, 1900) or other enactments of

West minister Abbey which were received into Nigeria by local statutes. Refer to Ordinance No. 3 of 1863, Supreme Court Ordinance of 1914 and the High Court laws of each State.

1. Case Law: This is the body of law which has been built up through authoritative and binding precedents, which is usually contained in Law reports. It is also called Judge-made Law because it is a rule or principle laid down by a judge in the process of judicial administration that is binding. Judges however deny that they make laws. They only declare what the law has always been. Case law depends on the doctrine of binding precedent otherwise known as stare decisions. The principle or rule laid down which formed the basis of judgement is the ratio decidendi as opposed to obiter dictum.

2. Moral law: Expression of the principles of morality – ideal conception of natural justice. Moral law is a collection of principles defining right and wrong conduct; a kind of a standard to which any action must conform if it is to be right or virtuous. We shall dwell more on this in the next lecture.

3.  Islamic Law: Islamic law is an epitome of Islamic thought, a system of law in which legal rules, ethics, religion, rituals and politics are closely interwoven. It is sacred law, an all-embracing body of religious duties.

It is the totality of Allah’s commands that regulate the life of every  Muslim in all its aspects. Its analogical deductions cover myriads of situation that arise in the normal course of human life.

A. Justice

According to Allah’s command, Islamic law maintains that whoever violates the law must face grievous punishment. Islamic law provides for stiff sanction for evil doers.

Justice is giving to each his due, the doing of good and charity to kith and kin and forbids all shameful aids, injustice and rebellion.

Allah commands justice and it is administered in the name of Allah – Al

Adii (the Just and Giver of Justice “to Judge justly”)

B. Sources

The sources of Islamic law:

i. The Holy Quran ii. The Sunnah

(a) Secondary Sources: namely: (i) Al-Ijma

(ii) Al Ijtihad

(iii) Istihsan Istislah

(iv) Istishap

(v) Sadd-al Dharat

The Holy Qu’ran is the first primary source. The Sunnah is usually regarded as the second source – the practice of Prophet Muhammed. Al Ijma is the consensus idea of Ulama and Qiyas functioning as an integrated structure whose adherents agree on the norms, rules, and values which are to be uniformly respected and observed. Ultimately, Allah the Sovereign, is the law Giver.

 

4. Islamic Law and Other Religions

Idea of Islamic law corresponds with those of other religions. However, there are also differences among them. Even Islamic law has not itself been uniform at any point of its development nor within any territory. There are different sects of Islam – Ibadis sect, Shiites sect, etc.

This has also brought about new Arabs Muslims society, new administration of justice, Islamic jurisprudence and new Islamic law. These varieties may be explained in terms of politics, administrative background, individual concepts of the life of the Prophet, and the rule of U manyyads (the first dynasty in Islam) as well as individual. World view of the turbulent period of the Caliphs of Medina.

D. Idea Of Law

Sharia is the path to be followed, the path revealed by Allah, the Creator. His messenger Prophet Muhammed which adherents should follow. Thus Sharia originates from the Command of Allah. It is the ideal code of conduct, and pure way of life which regulates the relationship of man and Allah and of man to man.

(a) Imperative Command Theory

Law as understood in western philosophy is a command set either directly or circuitously by a Sovereign individual or body to members of some independent political society in which his authority is Supreme. In the Context of Islamic law, the political superior is the Almighty Allah, the law giver, who himself enforces his law in such manner as He prescribes.

The imperative Theory of law is concerned with law as it is; not law as it ought to be. Conversely, Islamic law or Sharia is concerned not only

with law as it is but with law as it ought to be. Islamic law would not

recognize anything that is not founded on Qu’ran or examples of the

Prophet. It would not also recognize a legislation which tends to restrict

the field in which the sacred law is applied in practice or interfere with the traditional form of Islam.

(b) Pure Theory of Law

Hans Kelsen considered not as a rule but a norm deriving its authority from another norm and ultimately from a parent norm known as grund norm. The basic legal norm of positive law may be the first Constitution. In Islamic law, the basic norm from every other norm derives ultimate authority and validity is God, Almighty or divine revelation.

Ab dur Rabman has said that the fundamental principle on which rests Islamic legal system is that the laws of Islam are firmly based upon the Sharia and is in the interest of the people as a whole. The fountain head is the Quran and Sunnah, the Wahy al Jah (the revelation per se), Wahy al Khafi (the hidden revelation) etc. Quran and Sunnah are gifts to Ummah that is collectively responsible for administration of Justice.

 

5. Unwritten Law

Like the common customs of the realm or of old English people, Nigerian customary rules other than Sharia law are lex non scripta. They are unwritten and this quality distinguishes it from Statute law which is written.