What is the Most Important Feature of Law?

 

What is the Most Important Feature of Law?


Definition of Law

The meaning of law itself is of little importance to a practicing lawyer. What is relevant to him is the particular law that can be applied in a specific situation.

However, to a fresh law student, the meaning of law is essential.

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 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.

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.

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.

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?

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.

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.

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.

 


Features of law

What is the Most Important Feature of Law?


The word “law” can be interpreted to mean a lot of things. For example, we have the law of gravity, the law of demand and supply and we have criminal law.

How do we know the particular meaning of law that is relevant to a law student? This would only be made possible if the specific features of this meaning of “law” are expatiated.

The following are some of the common features of law as relevant to a law learner:

1. Body of Norms

2. Imperative

3. Sanction

4. It is Man-made

5. It has an element of coercion

6. It is Regional in Nature

7. It is Dynamic in Nature



Let us further explain the above mentioned features of law

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 behavior of a group. An example of a norm is the standard for right and wrong behavior.

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 favor of the injured party, by reason or in consequence of judgment of a court of law. It must be recognized also that there are laws without sanctions.

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

4. Law is Man-Made: This is one of the main distinctive features of law. Other meanings of law like the law of gravity, the law of thermodynamics etc are not made by man; they are laws made by nature. Even laws which are said to be divinely given need man in order for them to be enforced.

The laws of God would have no effect on man except if the society of man chooses to abide by them. A very good example of this is Canonical law in the Bible, although they are laws made by God, in most places, they are not binding on members of the society. Even Islamic law which is in operation in some countries needs the help of man before it can be enforced.

For example, full Islamic law is not in operation in Nigeria because the Nigerian society has not accepted it.

For example, the Constitution provides in S.4 that the law making powers of the Federation should be vested in the National Assembly which comprises of the Senate and the House of Representatives.

5. It has an Element of Coercion: Before a prohibition can be said to be a law, there has to be means by which it can be enforced in the society.

If there isn’t, the law would just be regarded as a moral rule at best. This is why the state makes use of elements of force like the police in order to enforce its laws and the judgment of the courts.

6. It is Regional in Nature: Unlike the laws of gravity which apply on the whole surface of the earth, law in our context only applies within a certain territory.

This is in most cases the society that accepts the law to govern them, although in some cases, law can apply in another territory through the use of conquest.

7. It is Dynamic in Nature: This means that law evolves over time in order to meet the specific needs of the society in which it is operative. For instant, Nigeria has had a series of constitutions ranging from the Clifford Constitution of 1922 to the present 1999 Constitution.


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