What is law? and its Characteristics

 

The question ‘What is Law’ has perplexed legal philosophers over the centuries. The term has not succeeded at acquiring any specifically limited and technical meaning that is universally acceptable for all times.

Understandably, writers have begun to question the wisdom of spilling so much ink and consuming so much time, and energy on arid definitional exercise which is of no conceivable utility to the judges, legal practitioners or anyone concerned with the life of the law. After all “Law is not a brooding omnipotence in the sky but a flexible instrument of social order”. It cannot be divorced from the political, economic and social experiences in the life in the society, which it is meant to serve.

On other hand, other philosophers have contended that a short definition of the subject under discussion is of essence. It seeks to clarify from the outset the most basic of all legal concepts – the concept of law itself. Early legal philosophers and legal writers know little of Africa and did not have continent in their contemplation when they wrote.

Yet Africa, it is claimed, is the cradle of humanity from where Homo sapiens spread to other parts of the world or from where various skills that enabled other hominids to evolve in their own turn were diffused.

It is necessary therefore to re-examine the concept of Law critically and re-assess objectively their various legal expositions in the light of the African and local situations and in contemporary times.

The lecture also affords opportunity to look deeper into some definitional discrepancies and the factors responsible for them.

In this post, you should be able to define Law, compare Law with other Phenomena, state the different ideas of Law, and their affiliation with each country’s political, economic and social values and describe and define the concept of law in Africa.

 

Conceptual Clarification

A legal system has been described as:

1. The aggregate of legislations and accepted legal principles and the body of authoritative grounds of judicial and administrative actions, e.g. the law of the land.

2. The Institutions (i.e. the Police, the Courts and Tribunals, the

Prisons) which are involved in the administration of Justice

3. The process or machinery for administration of justice i.e.

(i) Basic structure of the Court system

(ii) Basic procedure involved in a civil or a criminal proceeding.

(iii) Process of submitting disputes to law.

(iv) The manner in which the substantive law is applied.

4. The Persons in the law – judges, magistrates, legal practitioners, Attorneys-General or Solicitors-General, The Nigeria Police Force, Registrar of Court, Sheriff and Bailiff, The Nigeria Prisons etc.

Components of a Legal System

A legal system comprises the law, the institution, machinery and the process for administration of justice (civil and criminal) and the persons in the law. It is sum total of all rules. 

Each of these components may now be defined briefly:

 

Also read: Roles and Responsibilities of Policy Stakeholders

What is Law?

In simple words, Law is a definite rule of behavior which is backed by the sovereign power of the State. It is a general rule of human conduct in society which is made and enforced by the government' Each Law is a binding and authoritative rule or value or decision. Its every violation is punished by the state.

The word ‘law’ implies in Latin: the command of him who is invested with sovereign power. It has been defined or described in various ways but only a few will be discussed here:

Law has been defined as follows:

(a) “A set of rules governing human activities and relations”.

This definition appears extremely wide, accommodating rules of every game, of clubs, even of gangs of thieves.

(b) “A rule of action prescribed or dictated by some superior which some inferior is bound to obey” and is applied indiscriminately to all kinds of actions, whether animate or inanimate, rational or irrational (Blackstone).

(c) 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 (John Austin).

Note these observations:

Blackstone & Austin’s definitions seem to be silent on omission or inaction. Description of Law as a rule of action is wide enough to cover: Rules of a father to his son, or rules of a husband to his spouse which are no law.

(d) A body of principles recognized and applied by the state in the administration of justice (Salmond). Does the State not apply moral principles, which do not answer the descriptions of law?

(e) Rules, which the Courts will follow, the prophesies of what the  courts will do, in fact, and nothing more pretentious (Oliver Wendell Home). This is a classic egg and the chick case.

(f) Rules, which the Courts – the Judicial Organs of that body – lay down for the determination of legal rights and duties (John Chipman Gray). In other words, law means the rules of Court.

(g) An aggregation of legislations and accepted legal principles and the body of authoritative groups of judicial and administrative actions. This is more a description than a definition.

(h) A general body of such rules of conduct expressing the will of the ruling class as are established by legislation and such customs and rules of community life as are sanctioned by the government the application of which body of rules is secured by the coercive force of the state for the protection, consolation, and development of the social relations and the public order, beneficial and desirable for the ruling class.

(i) A general body of such rules of human conduct established or sanctioned by the government power, the execution of which rules is secured by the coercive power of the state.

Admittedly, Law is a complex word with multiple meaning and none of the meanings enjoys a universal acceptance. Probably, definitional discrepancies may have been historical, ideological, social or cultural or mere battle between words and meanings. It appears that problems of language may never be solved. New words keep creeping into usage and older ones acquire new meaning. 

Since the general elections, 1979 (not earlier), what is two-thirds of nineteen states has agitated and still will agitate many Nigerians for a time but it now settled law

You should be conversant with the notion of law in different countries and be able to define ‘law’ in several ways, and discuss the merits and demerits of each of them as well as justify their choice.

 

Also read: Difference between developed and developing countries

Characteristics of Law

Law is distinguished from other phenomena

1. Body of Norms: Literally, a norm is a model or a standard accepted (voluntarily or involuntarily) by the society or other large group against which society judges someone or something.

It refers to the actual or set standard determined by the typical or most frequent behaviour of a group. An example of a norm is the standard for right and wrong behaviour.

In legal theory, Hans Kelsen maintains that laws are norms that a society’s legal system is made up of its norms, each legal norm deriving its validity from the other legal norms. In essence, the validity of all laws is tested ultimately against the basic norm (also termed the grundnorm).

2. Imperative: The Imperative theorists believe that law consists of the general commands issued by a country or other political community to its subjects and enforced by courts with the sanction of physical force. They contend that if there were rules predating or independent of the country, those rules might closely resemble law or even substitute for it, but they are not law.

3. Sanction: Sanction is derived from a Latin word ‘sancio’ meaning, “to ordain, confirm or forbid under penalty”. It is a penalty or coercive measure that results from failure to comply with a law, rule or order. Violation of Statute attracts physical sanction as a matter of law. Sanction for a moral wrong is ostracism or some other while excommunication and hell may follow a violation of religious norm.

In international law, sanctions against a renegade nation may take the form of economic or military coercive measure by one or more countries to force it to comply with international law. Truthfulness is a moral norm only and observance of religious rites a religious norm.

The duty of Courts is to apply law, neither moral nor religious norm. However, morality is a validity criterion. Besides, every Nigerian is a moral being endowed with a concept of what is right or wrong, although the concept may not be consensual e.g. for psycho-social reasons.

John Austin states that every rule of law is backed by sanction but it would appear that law predates sanction. In most cases a sanction is a legally authorized post-conviction deprivation or some pecuniary loss imposed upon a party and in favour of the injured party, by reason or in consequence of judgment of a court.

Certain classes of people in certain situation are exempted from sanctions even though their conduct would have attracted liability under normal circumstance.

 

Read on: What is the Importance of Taxation?

Conclusion on what is law? and Its Characteristics

In this post, you have learnt some legal terms and their definitions. Several references were brought into the fore in trying to define what law really is, drawing inspirations from different continents and from Nigeria.

In the absence of any universally acceptable definition of law, you learnt the features which can assist you in identifying ‘law’ when you come across one. You are perhaps challenged into attempting your own definition of law, having fully understood the merits and demerits of those you have learnt.