Nature of Law PDF

Nature of Law Some philosophers have postulated the existence of natural law by which they mean the Law of God which regulates the actions of mankind. This concept is often known as the principles of natural justice. In the narrower concept of law, there must be a set of rules which can be ap...

Nature of Law Some philosophers have postulated the existence of natural law by which they mean the Law of God which regulates the actions of mankind. This concept is often known as the principles of natural justice. In the narrower concept of law, there must be a set of rules which can be applied objectively with someone to enfor ce them. There have been many attempts to put these into a workable definition, some more successful than others. One of the better is that of Salmond : "Law consists of any principle which is recognised and enforced by the courts in the administration of j ustice." Another, which is possibly superior to that of Salmond, since it has a slightly wider application, is that of James : "He defined law as a body of rules for the guidance of human conduct which are imposed upon and enforced among the members of a gi ven state." 2.5. Types of Law Salmond, after stating that law in its general sense includes any rule of action, says that it includes the following categories: Imperative Law These are rules of action imposed on men by authority, e.g. by the state. Physi cal or Scientific Law These are rules which formulate the uniformities of nature, e.g. the law of gravitation. You can distinguish them from man \- made laws, in the sense that they merely state observations on a state of affairs that already exists. Natural or Moral Law These are rules formulating the principles of natural justice. This conception of law is derived from Greek philosophy and Roman law, and has found more favour with Continental jurists than in English jurisprudence. It overlaps to some extent with physical or scientific law. In the English language, law and justice are two separate words, showing that we recognise them to be two separate things -- a distinction that is not made in most other languages. Conventional Law These are rules agreed upon by persons for the regulation of their conduct towards each other. Agreements entered into by, for example, the parties to a contract or members of a company (who agree to be bound by the rules of its Articles of Association) are enforceable under the chess, may not be enforceable by law. Customary Law These are rules of action embodied in custom. We shall consider later the importance of custom in the development of the English legal system. International Law These are rules which govern sovereign states in their relations with each other. Criminal law is concerned with offences against the state, i.e. crimes such as murder, housebreaking and theft. The more serious criminal cases are dealt with by a judge and jury; less serious offences (the overwhelming majority) are dealt with by magistrates. The two parties are the prosecution and the accused. The prosecution is conducted on behalf of the Crown via the Crown Prosecution Service, in important cases by the Attorney \- General. If the accused is found guilty by the ju ry, he is sentenced by the judge; if he is not proved guilty, he is acquitted. Civil law This is the law of the state, as applied in the state's courts of justice. It is into this category that English law falls. It has to do with private litigation, e.g. breaches of contract, disputes concerning property. The complainant issues a statement of claim, setting out the facts he alleges against the defendant and asking for damages or other remedy. Administrative law This is the study of governance. While National Assembly creates authority, the President enforces that authority, and courts confine or discipline the exercise of that authority. Now, we are in a position to discuss the various sources from which English law is derived. The Meaning of the Term "Source(S)" According to Black Law Dictionary The term "Source(s)" (also termed fons juris ) may mean the origin and defined source of l aw as something (such as a constitution, treaty, statute, of custom) that provides authority for legislation and for judicial decisions; a point of origin for law or legal analysis authoritative statement from which the substance of the law is derived. It may also be described as: "something (such as a Constitution, Treaty, Statute, or Custom) that provides authority for legislation and for judicial decisions. A source of law is the point of origin for law or legal analysis. There are numerous sources of la w, including constitutions, legislatures, executives, judiciaries, administrative agencies, and international organisations. You may have observed lawyers in Court, when they make statements and refer the Court to particular decided cases, the Law Reports where such cases can be found, to some Act or Statute and pointing to a particular chapter, part or section. We say that the Law Reports and the Statute or Act so cited are sources of his authoritative statements or law. In literature of jurisprudence, the problem of "Source(s)" relates to the question: Where does the Judge obtain the rules by which to decide cases? In our present context: Where do we obtain the law we have been talking about -- the law constituted in the N igerian Legal System? In this sense of the sources of law, Fullers has listed the following: statutes, judicial precedents, custom, and the opinion of experts, morality and equity. Fuller probably was concerned with "Sources of Laws" rather than Sources of Law -- where the law generally draws not only its content but also its force. Sources of Law may be classified into formal or material, and the latter further Subdivided into historical, legal, authoritative and binding, or other sources. Formal Source A f ormal source is what gives validity to the law. Upon an Act of the National Assembly, Who gave the National Assembly authority to legislate? The Constitution, Where does the Constitution derive its power? The general will and power of the people of Nigeria. This is the Ultimate Source. Thus the formal source of law may be traced to the "common consciousness" of the people, or the "Divine Will." Material Source Here we are not concerned with basis of validity as we did in our discussion of "formal source" o f law. We are concerned here with the origin of the substance of the law -- Where the law derives from or the authoritative source from which the substance of the law has been drawn. This may be \(i) Historical This may comprise the writings of lawyers, e.g. the rules and principles of foreign law. The writings do not form part of the local law until they are formally received or enacted into law. Prior thereto, they serve as persuasive authority. \(ii) Legal These are sources that are recognised as such by la w itself. Examples are statutes, Judicial Precedent and Customary Law