What is Philosophical School of Thought on Law?


What is Philosophical School of Thought on Law?

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

What is 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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