In
this article, we shall continue our examination of Ideas of law as conceived by
other schools of thought. The Discussions will mainly centered on ideas of law
in other jurisdiction, thus swing validity to the saying that he who pays the
piper dictates his tune.
But
any discussion of idea of law in other jurisdictions enables one to recognize,
compare and contrast definitional discrepancies across the continents. The
discourse provides some insight into the factors responsible for the dichotomy
and equips one to be able to assess the good and weak parts of our traditional
system.
Generally speaking, this school of thought is the opposite of natural law. Legal positivism proposes that there isn't necessarily a connection between law and morality.
Instead, it holds that law comes from
various sources, usually the government. If the government enacts a law, then
it should be followed.
Also read: What is the Most Important Feature of Law?
Philosophical School of Thought on Law
1. Traditionalists
The
Traditionalists regarded law as a means of providing stability and certainty
and social change. Because most early writers and philosophers did not have
Africa in contemplation, and knew little or nothing about the African informal
legal systems, there has been little literature on it.
With the
advancement in learning, later writers began to distinguish the following:
(a) Behavior
which the people in the community habitually observe, non-observance of which
does not threaten public peace (folkways).
(b) Rules
of conduct of deeper importance, a violation of which attracts censure and coercion.
The
truth is that every breach of customary law both a taboo and a threat to the
order of things. Although Traditional law is not law by positivists’ standards,
it is recognized as law by the Naturalists School of thought.
The
common law being Judge made law answers the description of law in the Realist
notion. Schepera Tswana law and customs recorded that “the Chief was himself at
once a rule, judge, maker and guardian of the law.”
One may
add that the traditional head legislated upon full consultation with his
chiefs. Sometimes, he is not making law but merely declaring what the law had
always been from the time of their ancestors.
2. Environmentalists
Here,
Law is a system of social control and orderly process for social change and
adaptability. Lloyd states that the world is a complex place and law is an
abstraction, influenced by Capitalism, socialism, feudalism and traditions or
other ideologies in their respective spheres but nearly all emphasizing the
idea of social control, orderly process and justice.
Here
then is one of the reasons for discrepancies in the meaning and concept of law.
Environment dictates the tone of morality, and this differs among world
countries.
3.
Historical School
Historians
have said that Law develops from evolution of customs which become accepted by
the society. The Common law, which forms part of law operating in Nigeria, was
itself the crystallized custom of ancient peoples of England.
Several
of our local customs have similarly gained recognition and have either been
acted upon by Courts or enacted into law e.g. Sharia Law. Quite a large junk
however, has remained unwritten. Today, most of our laws derive from the
statute, and relatively little from customary law.
4. Socialist
Perspective
Historical
evolution takes place through the resolutions of the ‘inherent contradictions’
in society, the most important of which is the conflict of class interests.
Karl
Marx states that both the law and the state in capitalist societies are
instruments of compulsion and are used by the wealthy minority to oppress and
exploit the working class majority. He objectified the state as an “abstract
and mystical entity moving and acting with a mind and soul of its own”. The
theory recognizes that the state in one thing and it is institutionally
different from the country.
The
ideology recognizes the Police, the military and the courts as mere state apparatuses.
In
essence, Law is an embodiment of class interests – i.e. the interests of the
peasantry, elitists, working class and the urban dweller (i.e. the worker).
Vyshinsky
expressed the view that the motives of the law was to protect the vested
interests that are desirable to the ruling class; but Gsovki is silent on the
motives of law – its materialist and selfish tendency and self-preservation of
the ruling class.
5. Informal
Law or Indigenous Law
It is
necessary that we speak more concerning informal law or indigenous law in
Nigeria. Formal laws are enacted laws or laws that have their source in
legislation – the written law, e.g. the Constitution, statutes like the
Criminal Law, Companies and Allied Matters Act, Matrimonial Causes Act, Banking
and Other Financial Institutions Act etc.
Informal
law, on the other hand is the implicit law that grows or develops through time.
It is unwritten and therefore expresses itself, not in words but in a course of
action (Rotibi v. Savage). Example is the customary law – a system of law
consisting of customs that are accepted as legal requirements or obligatory
rules of conduct, practices and beliefs that are so vital and intrinsic a part
of a socio-economic order that they are treated as if they were law.
In Saka
Salamu v. Alimi Aderibigbe (1963), the
Court described customary law as those rules of conduct which the
persons living in a particular locality have come to
recognize
as governing them in their relationships with one another and between
themselves and things, but the things to which customary law relates, were
things which were closely connected with customary way of lives and which
existed or were usually kept in the locality in which their owners or
possessors lived.
Until
the advent of the Europeans, the customary law was indigenous law – a mixture
of law, customs, morals, etc (Clifford). But western legal philosophers defined
law narrowly and did not consider the unwritten customary law. Some of them
have denied that customary law was law in the strict sense, and this was
because they were either absolutely ignorant or lacked knowledge of how to set
about investigating customary law.
The features of customary law identify the customary law as:
(a) An instrument
of natural justice, of peace, not an instrument for the application of strict
penal law. Its objective is to set things right so that life within the
community can go on peacefully and harmoniously as before. (Narebor)
(b) It
is such as had existed in the locality from time immemorial “to which the memory
of man runneth not to a contrary”. Welbeck v. Brown (1882).
English
practice pegged this at 1189 AD or as at the commencement of the reign of King
Richard I.
(c) It
can be noticed judicially or can be proved by evidence to exist (Evident Act)
(d) It
is flexible. The more barbarous customs of earlier days, may under influence of
civilization, become milder without losing their essential character as custom:
Eleko v. Officer Administering the Government of Nigeria (1931)
(e) A
mirror of accepted usage and of culture. Owoniyin v. Omotosho (1961)
(f) It
is the organic living law of the indigenous people, regulating and controlling
their lives, and transactions. Justice Nareborsays it imparts justice to the life of all subject
to it.
(g) It
is neither static nor immutable. It changes with time, applies to persons and
things, within or outside the locality provided parties agree that their
relationships should be so governed or that the law should apply to the
particular transaction. This is often the case in issues of customary marriages,
intestate inheritance, customary land titles. The Court in Bakare Alfa &
Ors v. J. Arepo (1963) confirmed that
customary laws are rules binding on a particular community and which
rules do change with the times and with the rapid development of social and
economic conditions.
Examples
are old customary practices of trial by ordeal, discrimination against Osu
family, extraction of exorbitant bride price.
(h) The
overall guiding principle is that a customary law must not be repugnant to
natural justice, equity and good conscience: Lewis v. Bankole (1908) and Ashagbon v. Odutan (1955)
It needs
to be added that Islamic law is written but the ethnic customary law is not.
In the Northern States, like in Ghana, customary law is original law and statute has to be tested with the customary law as the background. In other parts of Nigeria, customary law is invalidated if it is incompatible with statute.
This
explains why criminal code operating in the south had to give way for the Penal
Code in the north – showing clearly that Islamic law has distinguished itself
from ethnic customary law.
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