Introduction To The Concept Of Law PDF

**Introduction to the Concept of Law** **1.1 Meaning and Nature of Law** In everyday life, reference is made to the law by members of the society. This is because there is hardly any aspect of human life that is not regulated to some extent by law. Relation between individuals, individuals and gro...

**Introduction to the Concept of Law** **1.1 Meaning and Nature of Law** In everyday life, reference is made to the law by members of the society. This is because there is hardly any aspect of human life that is not regulated to some extent by law. Relation between individuals, individuals and groups, groups and groups, individuals and the state whether in political, economic, or social interactions, are to a large extent determined, regulated and conditioned by the law. This makes law one of the most dominant concepts in human society. Given its pervasive attribute, one would expect that law could be easily defined in a simple and straight-forward manner. On the contrary, law, like many other concepts, does not lend itself to a simple, precise, straight-forward definition. It is for this reason that it has been conceived and defined in variegated ways by scholars and legal philosophers. It is also for this reason that various schools of law have emerged in the development of legal jurisprudence. It is imperative to mention that due to the nebulous nature of the concept of law, there is no universally accepted definition. It is important, therefore, for the student to examine the various definitions offered by writers on the subject, the totality of which provide a guide to appreciating the meaning of law. As already pointed out above, reference is made to the law by members of the society in everyday life. In daily usage, the word 'law' could be used in either a general or technical sense. Used in a general sense, it refers to accepted rules that apply and are considered binding among members of a defined group such as the laws of a union, social club, a football club, etc. It could also be used in the same general sense to refer to established principles in any field of study such as Newton's laws of motion in physics, the law of demand and supply in the science of economics and the law of psychology. In its technical sense, law is seen, not just as rules accepted by a group of people but also as rules made and possessing the imprimatur of the state. In this sense, law could be defined as 'a rule of body of rules made by institutions, bodies and persons vested with the power to make such laws which are binding and enforced among the members of a given state or society.' It is 'a complex system of formal rules, principles, processes, etc, regarded as necessary, and enforced in an institutionalized manner, based on the need to regulate social relations so as to attain some social goals.' From the definitions above, we can deduce certain features which explain the nature of law. Firstly, it is a body of rules. This body of rules comprises legislation enacted by institutions vested under the constitution with powers to enact laws at the various levels of government, rules of customary law and Islamic law, principles of common law and equity, delegated legislation and principles laid down by the courts in decided cases. It follows that though law is a body of rules these rules are not in in one document and are in part, unwritten. For this reason, while everyone may know the law, it is the lawyer who knows where to find the law. Secondly, law is man-made. This means that rules of law are laid down by persons and institutions established by law and recognised by society which gives law the attribute of mandatory obedience by members of the society. Under military rule in Nigeria laws were made at the Federal level by the Federal Military Government as Decrees and at the state level by the Military Governors as Edicts. Under democratic rule, they are made at the Federal level by the National Assembly and at the state level by the Houses of Assembly of the respective states. Thirdly, law is imbued with coercive force. Whenever the law is violated sanctions are imposed in accordance with law. The criminal law does not only create offences but also prescribes punishments to be inflicted where criminal liability is established against an alleged offender. The courts and the law enforcement agencies such as the Nigeria Police, the Nigeria Custom Services, the National Drug Law Enforcement Agency, the correctional services etc, all combine in their duties to ensure that effect is given to the law. In civil law, every violation of the right of another person is remediable by way of damages assessed and imposed by the courts. The law ensures that wherever there is a right, there must be a remedy. This is encapsulated in the Latin expression *ubi jus, ibi remedium*. Fourthly, law is normative in nature. A legal norm is a mandatory rule of social behaviour established by the state. A norm therefore prescribes what may or may not be done in a society. It provides for conduct that is permitted and conduct that is prohibited. Because law prescribes conducts that are permitted and conducts that are not permitted, it is said to possess a normative character. Fifthly, law has territorial applicability. Every law is applicable only within the territory of the state in which it was enacted. It does not have binding force beyond the territory of such state. For this reason, only the courts of the enacting state will interpret and apply it. A case usually used to illustrate the territorial limitation of law is the old English case of *Holland v. Johnson*. Here, the plaintiff who lived in Dunkirk, France sold tea to the defendant who also lived in Dunkirk. The plaintiff knew that the tea was going to be smuggled into England, though he was not concerned with the smuggling scheme. Payment for the tea was to be made by bills of exchange drawn in England. When payment was not made, the plaintiff brought an action for non-payment in England. The defendant contended that the contract could not be enforced by the court because the contract was unlawful the tea having been smuggled into England in breach of English law. It was held that the sale having been completed in Dunkirk, and the plaintiff having not been involved in smuggling the tea into England, the plaintiff did not transgress the law of England, and that the contract was enforceable. Sixthly, law is intended to regulate conduct in society. Law defines the relationship between members of the society, recognises and protects rights as well as place limits within which members of the society must exercise and enjoy those rights. This conduces to order in society and reduces the possibility for conflicts. Without law and its mechanisms for enforcement, it would be everyone as they please, and society would be irredeemably chaotic and anarchic. **1.2 Functions of Law in Society** As with the definition of law, scholars of law and society are unable to reach agreement as to the precise functions of law in society. As already seen, however, law generally regulates conduct within a society for the purpose of ensuring order in that society. In more specific terms, law serves a multitude of functions which have been identified by different writers. Here, three broad functions of law which are the recurrent major themes among scholars will be discussed. These are social control, dispute settlement and social change. **1.2.1 Social Control** In traditional societies with small populations where members of the society knew themselves, social control was less problematic. Social norms were very early in life imbibed and values were shared. Because members of the society knew everyone, identifying deviants did not pose the challenge it poses in modern societies. Deviance in such societies was meted with informal sanctions which were well known to members of the society such as gossip, ridicule, humiliation, ostracism, and in extreme cases, banishment. In some cases, fear of disapproval from family, friends and neighbours was usually adequate to keep potential deviants in check. Unlike traditional societies, modern societies are complex, diverse, and have large populations. There is a lack of direct communication between segments of the society, and values, attitudes and standards of conduct differ between the different segments. Coupled to these is a competitive struggle among individuals and groups with constantly changing interests. This complexity of modern society necessitated formal mechanisms of social control. Though there are other mechanisms of social control in modern societies, law remains the major mechanism of social control. As a mechanism of social control, law is characterised by explicit rules of conduct, an organised use of sanctions to ensure that rules are complied with, and designated institutions and officials to interpret and enforce the rules. The social control functions of law is aptly captured by Friedman who identified two ways through which law plays the function of social control. In his own words: Aside from prohibiting and punishing prohibited conduct, law provides remedies to assuage victims where injuries have been suffered as a result of the actions or inactions of other members of the society. As a mechanism of social control, therefore, law prohibits unlawful conduct, ensures order, justice and peace in society. **1.1.3 Dispute Settlement** Due to competing interests among members of the society, disputes are bound to arise. Unless there is a formal, authoritative mechanism of dispute settlement, disputants are most likely to resort to informal and sometimes very crude means of dispute settlement, the worst of which are jungle justice and self-help. Law provides an authoritative mechanism of settling disputes through the establishment of courts and other adjudicatory bodies presided by judicial officers trained in law. As courts settle disputes through an authoritative allocation of legal rights and obligations, the law provides an alternative to self-help which the courts have consistently frowned at and discouraged. It must be pointed out that a legal resolution of a dispute by the court does not necessarily bring an end to the antagonism between the disputants, or fully addresses their grievances. This is because court decisions produce win-loss outcomes that leave the party that lost still aggrieved. For this reason, the law has encouraged what is now known as Alternative Dispute Resolution (ADR). This is a dispute settlement mechanism that employs negotiation, mediation and arbitration. The ADR system of dispute settlement is devoid and shun of the battle that characterises courtroom litigation. The dispute resolution methods employed in ADR are less formal, cost efficient and devoid of the delay that characterise litigation. A major advantage of ADR over litigation is that it usually produces a win-win outcome as opposed to the invariably win-lose outcome of litigation. In encouragement of this form of dispute settlement, the laws of various states of Nigeria have established Multi-door Court Houses where disputes are settled through ADR processes. Law therefore serves the function of providing rules on the basis of which the courts and other adjudicatory bodies established by law could adjudicate and decide on disputes brought before them by aggrieved persons. It provides the rules for determining the rights and obligations of disputants as well as the legitimate form and procedure for doing so. Llewellyn summarised the dispute settlement role of law in society as follows: **1.3.4 Social Change** Law is said to be an instrument of social engineering, and lawyers the social engineers. With the instrument of law, society is able to be steered to desired directions for the general good. The ability of the law to harmonise conflicting interests and claims in society and ensure order in the midst of it all depicts the social engineering attribute of law. This social engineering aspect of law is best explained in the iconic words of Roscoe Pound who wrote: In the development of every society, anomalies or mischiefs are discovered whether in politics, economics, education or any other sector of the society. Law provides the safest, quickest and legitimate means for addressing such anomalies or mischiefs and bringing about change. It is more often than not the 'reaction or response of the lawmakers to the problems and issues confronting society.' At every point in time, therefore, the laws of any society reflect the needs of that society at that time. When the needs of society change, law, in its flexibility and dynamism, changes to meet those changed needs. This dynamism of the law as society develops brings about social change. As Grossman and Grossman concluded, law is considered a 'desirable and necessary, if not a highly efficient means of inducing change... wherever possible, its institutions and procedures are preferable to others of which we are aware.' **1.3 Law and Related Concepts** **1.3.1 Law and Values** Values are basic and fundamental beliefs that guide or motivate attitudes or actions. They are inherent beliefs that inspire behaviour and action among people. They are 'socially approved desires and goals that are internalised through the process of conditioning, learning, or socialisation and that become subjective preferences, standards and aspirations.' Values are important in every society because they guide conduct and steer society to what it considers important and desirable. Values derive largely from culture and are usually culturally-specific heritage. But some values transcend cultural boundaries. Such values lie at the heart of every individual, and at the heart of society, as human values. Such things as fairness, honesty, equality, equity, respect for the integrity and dignity of the human person, mercy, etcetera, are values inherent in all cultures. Each of these go to the core of what we understand humanity and the individual to be. Because values comprise of what are considered desirable by society, they find expression in rules, principles, precepts and norms developed by society and by the law. The law, in its creativity and flexibility, draws from these values in numerous ways. The value of fairness resulted in the concern of public law to prevent the arbitrary, capricious exercise of power. Every member of the society expects that power should not be exercised against him or her in a manner that fails to respect his or her integrity and dignity. Public law therefore provides the limits of the exercise of power by those who hold and exercise power in society. Constitutional law, for example, requires that an accused person must be treated fairly and accorded fair hearing. In much the same way, private law deters behaviours that are antithetical to honesty in commercial transactions. The law of contract, for example, deters behaviours or actions which deviate from the terms of a contract as mutually and freely agreed by the parties. Values are therefore important in law-making and in the growth of the law. They constitute the fountain from which legal rules are largely drawn. Values themselves though embedded in the heart of society, of themselves, lack the force of law. They are given force and are transformed into legal imperatives by law. Law and values are therefore not clearly identifiable separate vehicles, but rather inter-related, mutually reinforcing vehicles for engineering society towards the greater good. **1.3.2 Law and Morality** Morality refers to a code of conduct. It means conformity with recognised rules of correct conduct. It refers to the principles concerning the distinction between what is good and bad, right and wrong. In the earlier stages of society, law and morality were considered to be one and the same thing. Relying on the doctrine of 'human rights' the Greeks espoused the view that morality was the basis and the foundations of law. The Romans for their part relied on the doctrine of natural law to recognise certain moral principles as the basis of law. In the Middle Ages when the Church dominated thought in Europe, the doctrine of 'natural law' became theology and Christian morals were considered as the basis of law. Good law, therefore, was law in consonance with natural law. In the modern age, however, there is a dichotomy of opinion in legal philosophy as to the relationship between law and morality. While some see morality as distinct and independent of law, others are of the view that law and morality are one and indistinguishable. For the former, law must be pure and devoid of moral considerations. For them, law must be separated from moral principles which are not law. Hans Kelsen's pure theory of law remains in the forefront of the philosophical stand that law and morality are separate concepts and must be considered separately. For the latter, morality is an integral part of law or of legal development and is inseparable from it. For them, law in action is not a mere system of rules, but involves the use of certain moral principles such as the good and the equitable. What then is the relationship between law and morality? Law and morality have their points of intersection and divergence. To appreciate the relationship between law and morality, it is imperative to examine their points of convergence and the points of divergence. *Points of Convergence* 1\. Laws are generally based on the moral principles of the society. They draw from and reflect the society's ideas of right and wrong. 2\. Both law and morality regulate the conduct of members of the society. Because of this, they influence each other to a great extent. Law and morality act and react upon and mould each other. Such moral concepts as 'justice', 'equity', 'good faith' and 'conscience' have become part of the law. 3\. In the exercise of judicial discretion by judicial officers, not only law but moral considerations play an important role. Similarly, morality operates as a form of restraint on the legislature in law-making. 4\. Law-makers will be wary in making laws which go against the grain of the morality of the people. Lawmakers therefore have morality at the back of their minds when making law. They avoid making laws that conflict with or offend the morality of the people. 5\. Besides, law cannot regulate and control all human conducts in society. A lot of the actions and conducts of members of the society are, as a matter of fact, regulated and controlled by moral convictions. In marriage, for example, husband and wife live peacefully certainly not because of the law, but because of their moral conviction that husband and wife should love each other. So long as love prevails between them, there will be no need for law. It is only when love flies out of the window that the lawyer steps in through the door. 6\. To be effective in society, law must represent the moral ideas of the people. The more law is in sync with the morality of the people, the more effective law is likely to be. This is because people more readily obey laws that are in accord with their moral convictions than if it were otherwise. This is not to say that all laws must reflect one moral principle of the society or the other for it to be effective. A law may not draw from the morality of the society but still rouse the consciousness of the people and maintain such conditions as may encourage the growth of morality. Such law may eventually become effective and contribute to changing social attitudes. In making laws, it is the duty of the state to make such laws as will elevate the moral standard of the people. Laws should therefore conform to the people's shared standard of morality. The Same Sex Marriage (Prohibition) Act passed by the National Assembly is, for example, a statutory reflection of the moral revolt of Nigerians against the legalisation of same sex marriage in certain jurisdictions in the Western part of the world. It is a representation of the morality of the people that marriage should only be contracted between persons of the opposite sex and not otherwise. The connection between law and morality is strengthened by the fact that obedience to law depends to a great extent on the active support of the moral sentiments of the people. A law that does not receive the active support of the moral conscience of the people may become unpopular and prove difficult to enforce. The attempt to abolish the *osu* system in certain parts of South-east Nigeria through legislation is a good example. Another is the attempt to regulate bride price in the same part of the country through legislation. In both cases, the laws were never complied with and were not enforced because both the *osu* system and the amount of bride price payable are entrenched ideas among the people. *Points of Divergence* Having seen the intersections between law and morality, in what ways is law different from morality? Law differs from morality in the following ways: 1. Law regulates and controls external human conduct. It does not concern itself with the inner motives of people. That is to say that law does not judge the thoughts of a man. Until externally manifested, and harm or injury has been done to another, the law does not take interest in the intentions of a man. Morality on the other hand regulates and controls both the inner motives and external actions of the individual, his whole life. Unlike law, morality condemns a person for an evil motive even though such motive has not been manifested externally as action. 2. Law applies universally, not changing from one person to the other or from one group to the other. All persons within the society are subject to the same laws without exception. Morality, on the other hand, is variable. It changes from person to person, people to people. This is because different persons within the same society may have different moralities. While, for example, the issue of same sex marriage violates the moral consciousness of many Nigerians, some Nigerians also consider it innocuous to the public and therefore appropriate. 3. Laws are precise and definite because there is a regular organ in every state vested with power to make laws. Laws therefore enjoy a degree of certainty. Moral principles lack the precision and definiteness of law. This is due to the fact that there is no regular authority to make and enforce them. While it is moral to contribute to the development of one's community, there are no moral principles that may be resorted to in determining how much one may contribute to community development. Tax laws, on the other hand, do not only require income earners to contribute to the development of their communities, but also provide the parameters for determining each person's tax liability. 4. Law is made on the authority of the state, it enjoys the enforcement support of the state. Institutions and organs of the state are established and vested with powers to enforce laws within the state. Disobedience is punished by the state as provided in the law. The fear of punishment serves as deterrent to disobedience. In the case of morality there are no state institutions that frame and enforce moral principles. Devoid of state authority, morality does not enjoy the support of the state. As a result, violations of moral principles are not punished by the state. The only consequences of violation of moral principles are condemnation by members of the society, gossip and opprobrium. 5. Law falls within the purview of jurisprudence. Morality is studied under a different branch of knowledge known as ethics. It does not form part of the subject of law. From the above discussions, it could be said that though law and morality have their differences and belong to two separate subjects, they are intimately related, asserting some influence, one on the other. **1.3.3 Law and Freedom** According to Black's Law Dictionary, freedom is the state of being free or liberated. The desire to be free is one with which everyone is born. Freedom is therefore innate in the individual and derives from nature. There is hardly any individual who prefers to be shackled than to be free. Attempts in history to remove or restrict the freedom of the people had resulted in violent revolutions that radically changed societies and resulted in the protection of fundamental freedoms through law as a legal ideal. The French Revolution (1787 - 1799) was precipitated by the desire of the Commoners to bring feudalism to an end and to acquire the full rights of landowners and to be free to increase their holdings. The Bolsheviks Revolutions (1917) in Russia was necessitated by the oppression of the peasants by the tsarist regime; while the American War of Independence was the result of colonial opposition to British attempts to impose greater control on its American colonies. Law recognises the freedom of the individual, and one of its numerous concerns is the protection and regulation of the exercise of freedom in such a way that advances the interests of both the individual and the state. Depending on the area freedom is exercised freedom could be physical, economic, political, social, intellectual, cultural, or moral. Regarding the relationship between law and freedom, it is sometimes said that law gives and is the source of freedom. In reality, however, law does not give freedom and therefore is not its source. While law does not give freedom, it unquestionably protects and guarantees freedom. The freedoms enjoyed in society would be in jeopardy if there was no law. The basic rights of man which are now referred to as fundamental rights are freedoms protected through law and entrenched in the constitutions of all democratic states because they are the minimum below which no one should be expected to live. Chapter Four of the 1999 Constitution of the Federal Republic of Nigeria (as amended) contains these basic rights and freedoms. These rights and freedoms are the right to life, personal dignity, personal liberty, fair hearing, privacy, freedom of thought, conscience and religion, freedom of expression, freedom of association, freedom of movement, freedom from discrimination, and freedom to own property anywhere in Nigeria. The law protects these freedoms from possible violation by individuals and the state. As pointed out already, law does not give freedom. If anything, law by its nature and operation limits and restricts freedom. Thus, while freedom is a natural craving of the individual and necessary for him to live a fulfilled life, there is no absolute freedom. Law restricts the freedoms of the individual in appropriate cases and in manners prescribed by law. There are two basic purposes for which freedom is restricted by law -- to protect other members of the society from harm which could arise from the individual's enjoyment of his freedoms, and to protect the individual from harm which he could do to himself while enjoying his freedoms. These two purposes will be discussed here one after the other. The curtailment of freedom by law in order to protect others from the freedom of the individual is part of the social control functions of law. The rationale behind legal restriction on freedom is best explained by the common saying that where one's freedom ends is where another's freedom begins. As such a man's freedom to swing his arm as he wants ends where another man's nose begins. It is therefore of utmost importance that other members of the society are protected from the freedom of the individual if disputes must be kept to a minimum in society. The owner of land may have the freedom to use his land as he pleases, but his freedom must be exercised in such a way that he does not cause harm to his neighbour's land. If he keeps on his land substances which if they escape will cause damage to his neighbour, he will be liable in the law of tort for any damage or injury occasioned by the substance if it escaped. While one has the freedom to play music in his house, if he plays his music loudly and thereby puts his neighbours in discomfort, he may be liable in the tort of nuisance. In each of these cases, the law interferes to place bounds on the individual's enjoyment of his freedom in order that other members of the society are not thereby imperilled. But one question that has occupied legal philosophy is to what extent law should curtail the freedom of the individual. That is, where should the freedom of the individual end? Where does the authority of the state begin? In answering these questions, J. S. Mill opined that the harm principle should be the limit of the interference of society in individual life. The harm principle means that an individual could do anything with his freedom so long as he does not harm others. Accordingly, he may drink himself to stupor and the law would have no concern. But if in his state of inebriation he drives his car recklessly and endangers others, the law will punish him. Truly, however, the law does not only interfere with individual freedom based on the harm principle alone. It also limits the exercise of freedom where, though no harm would be done to others due to the action of the individual, harm would, nevertheless, be done to the individual himself. This fatherly role of the law to look out for, and protect the individual from himself is referred to as **legal paternalism.** Legal Paternalism is therefore 'the interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests, or values of the person being coerced.' It is pertinent to point out that one major area in which law has been used to protect, regulate freedom and advance the economic pursuits of members of the society is in the law of contract through the doctrine of freedom of contract. Freedom of contract refers to the freedom of individuals to enter into any contract they please, so long as such contract is not illegal or promotes immorality or is contrary to public policy. It includes also the freedom of persons to elect not to enter into a contract. Subject to few limitations, the law does not interfere with the freedom of the individual to negotiate and enter into any contract with anybody. The doctrine of freedom of contract has contributed immensely to the economic development of society as it allows individuals the latitude to freely enter into commercial transactions on terms and conditions freely negotiated by them without the interference of the state. Since, as already seen, the individual's freedom unregulated by law could give rise to harm to other members of the society or to the individual himself, the law has imposed certain limitations on the freedom of contract. The law will not permit a contract to be enforced which involves the commission of a legal wrong, or a contract that is contrary to public policy, or one in restraint of trade. Where the state deems it necessary, law could also be used to control prices of certain goods rather than leave them to be determined by market forces and the bargain of buyers and sellers in contracts of sale of goods.