Law in Social Context

Posit means?

to put or place

The first element of Austinian's definition of law is?

The existence of a definite sovereign

Positivist school

The law placed or imposed upon the situations by the rulers

Theories of Justice

a. Formal Justice (legalism) b. Substantive Justice (extra judicial factors)

John Austin defined law as?

"a command set by a superior being to inferior beings and enforced by sanctions"

Lord Eldon in SHEDDON vs GOODICH once said that ________

'It is better that law should be certain than that every judge should speculate upon the improvement in it'

Phil Harris defines Morality as ________

'code of beliefs, values, principles, and standards of behaviour, some versions of which are found in all social groups'

Law and Morality

- Besides law, moral principles are preconditions that any society must have. Unlike law, morality is subjective in nature known as 'the relativity of moral ideas'. - Morality is higher than law, as it is the ultimate principle & criterion whereby social behaviour is judged. Once a law is inconsistent with it, such law can be rendered invalid. It is the principle concerning right, wrong, good or bad behaviour. - Every social group has its specific morals, which can be different from that of another group. And due to its subjectivity, the consequence for breach varies according to society's stand on it. - The standard of morals can be lowered or abandoned as a result of advancement and development. - While law is universal in outlook, morals is sectionallly & internationally relative. (A law termed immoral in a particular society might not be viewed as such in another) - Meanwhile, the process of creating morals sometimes follows laid down patterns within the law. This occurs especially in situations where different views in a society occur on a particular issue, hence, the law seeks to strike a balance based on the predominant view. - Law is different from morals in the sense that an act may be morally wrong, but not in breach of any law; and not all laws even seek the consent of morals. Most of today's law abolish the customary law because of its unwritten character - Law can be used to regulate & protect public morals from the corrupting influence of others, which must be couched in a written legislation. (talk about individual liberty vs. public morality. see SHAW v. DPP)

Sociological School

- Eugene Ehrlich, one of the most prominent sociological jurisprudents. others include Auguste Comte, Max Weber, Emile Durkheim. - Ehrlich said law is based on 'facts of law' I.e how the people act, their way of life, and not mere theory not carried into actualisation. - further states that the society's conduct prescribe the laws of the land, and not the sovereign. Hence, to know the law, one should study the lifestyle & conduct of the society, and not the formal legal sources. He believes that people disobey the laws made by the sovereign, and follow their own conducts. Hence, laws should be made from the conducts of the community.

Historical School

- Founded by Friedrich Carl Von Savigny (a German aristocrat) - it believes in 'Volkgeist' (the spirit of the people) which binds members of a particular society together, distinguishing them from others. (National spirit) - Hence, for a law to be valid, it must accord with the history of the people. - it seeks that law should evolve (be formed) formally from people's custom, since they're accustomed to it, so that no man disobey it

criticisms on the consensus model

- It is misleading to assume that today's society have a universally shared valued system, where conflict and dispute prevail. - there is no law, however considerate that can be put together to make everyone happy. - it only concentrate on factors that unite a state, disregarding factors that brings disunity. - it only uses a sectional group to judge a larger society and interest. - Different historical complexity cannot make this possible.

Utilitarian school

- Jeremy Bentham, the postulator believed that for a law to be valid, it must achieve the greatest goof for the greatest number of people. (communal utility - the greatest duty of law) - He rated for utilities in order of their importance which are S - security; L - liberty; E - equality; A - abundance

Objectives of law

- Law and Order - Law and Justice - Law and Freedom - Law and the State - Law and Legitimacy - Law and Sovereignty - Law and Morality

criticisms on the Austinian definition

- Not all laws are written in command language. - it says law is what the sovereign says it is: it is not concerned with the system of government I.e the political nature, or moral character of the lawmaker. it is only concerted with how legitimate the law maker is. - the idea of an uncommanded commander is only possible in an absolute dictatorship/monarchy. - not everyone obeys law due to fear of sanction; it only accords to their normal wag of life.

Natural law school

- Zeno, Thomas Aquinas and Grotius are the key proponents. - it is what is 'fair' 'just' or 'right' relative to individuals. - Man regardless of any binary are guided spiritually by some of the fundamental principles (can be deduced from the nature of things; of man & of society through reasoning) accepted, that teach them what is right & wrong. Hence advisable that man-made laws accord with it.

Functional school

- an outgrowth of sociological school, founded on pragmatism by Oliver Wendell Holmes, a U.S jurist. - it sees law from the standpoint of the 'bad man', saying the bad man only cares about what the court will do in respect to a legal problem, and not legal theories solution. Hence, stresses that the judge has the final say. Considering that the laws made by the legislature are not encompassing, which makes the judge go the extra mile in determination. In short, to know the law, check what the judge says.

Theories of functions of law

- consensus model - conflict or pluralist model - open model - marxism

The Realist school

- founded by Oliver Wendell Holmes - it focuses on reforming the judicial arm, especially trial court; making them conscious of their prejudices in decision making. While also stressing the fact that too much attention is being paid to legal rules, stating that judges consider other human factors in deciding case, hence attention should be paid to them, and equality craved for.

Functions of law

- it define and regulate social relationships. - it identify and allocate official authority - it settles disputes. - it changes with time to suite the present day societal demands.

criticism on utilitarian school

- it fails to solve the problem of how balancing individual and communal interest can be achieved.

criticisms on functional school

- it focuses on the judiciary alone, neglecting others; forgetting the fact that judicial arm was created out of the laws made by the legislature, & assented by the executive. - also, there would have been no case to judge if the legislative arm haven't enacted any law. - not all legal cases are handled by the court or tribunals.

criticisms on the pluralist model/theory

- it is false to assume that all interest groups possess equal power to influence lawmaking and implementation; forgetting the fact that the 'dominant group' ruling has made it unequal. - the machinery for conflict settlement may only favour some groups. (For instance not all group can afford the service of a lawyer, and some are rather illiterate to know the processes involved.)

criticisms on Natural law theory

- it only test the 'validity' of man-made law, which occur in documentation. - it stresses what ought to be, & not what is done. - it is invalid since it isn't written down and cannot be penalized legally. - it only empower the ruling class who feel their decision is the right reasoning. - 'multiple conscience problem'; It is then described as 'harlot' since it could lead to anarchy.

Consensus Model

- it perceives law as protecting social values to which everyone in the society benefits. - The chief protagonist of this theory is Talcott Parson, who sees the society as Unitary. He viewed law as capable of uniting the people, seeing it as having smooth and peaceful coexistence among all members of the society. He believe the law is equal and that the rulers rule in the common interest of all. In other words, he upholds a commonly shared valued system.

criticisms on pure theory of law

- it stresses formal validity rather than its effect in the society. - it is difficult to identify the grundnorm. - the law may not tally with legal order.

Pure Theory of Law

- led by Prof. Hans Kelson, who said law is a system of norms. - It emphasized that a law is valid if its trend can be traced to a grundnorm

criticisms on historical school

- living in the past. - it would hinder radical but creative reforms that would have changed the society for better. - not all customary laws are rational, just or fair. - it doesn't solve the problem of diversity, rather it worsen it; and leads to lack of cooperation of man

criticisms on sociological school

- not all conducts are capable of influencing the law; meanwhile, the law sometimes influence the people. - it is very risky to 'go with the flow' (to do things the way others are doing it) - it is difficult to determine the law from people's conducts, since people can be hypocritical. - the society's conduct might be against people's right.

equity

- the state of being fair and reasonable; treating everyone equal. - it also means the value of property (excluding liens & other encumbrances)

In Nigeria, rules of customary laws are applicable if they meet certain tests which are:

- they must not be repugnant to natural justice, equity & good conscience - they must not be contrary to public policy - they must not be incompatible directly or indirectly with the law in force.

what are the features of law?

1. Law is a body of rules 2. Law is man-made 3. Law is normative in character 4. Law has an element of coercion 5. Law has territorial limitation (see Holman v. Johnson) 6. Law is dynamic in nature

Law

A rule or body of rules made by institutions, bodies and persons vested with the power to make such rules, which are binding and enforced among members of a given state or society

_________ defined law as a body of rules according to which the courts (I.e the judicial organ of a political body) decide cases.

Cohen

AWOLOWO vs. FEDERAL MINISTER OF INTERNAL AFFAIRS

Here, a popular political leader from the old Western Region was charged with the offense of treasonable felony, which is punishable either by death or life imprisonment. The learned trial judge was reported to have said 'my hands are tied' meaning no matter the plea for the accused, he (the judge) is constrained by the law to convict him.

HOLMAN vs. JOHNSON

Here, the plaintiff had sold tea to the defendant in Dunkirk with full knowledge that the tea was to be smuggled into England. In a suit for the recovery of the price, it was objected that the contract was void for illegality. The court rejected this based on the principle that 'no country ever takes notice of the revenue laws of another country.' It was then held that the seller had no concern in the smuggling scheme and did not violate any English law. Since uploading the claim of the defendant will be tantamount to giving the English law extra territorial effect.

Who is this chief protagonist of the positivist school of thought?

John Austin

who propounded the 'Command theory of law' in his celebrated but controversial book "the Providence of jurisprudence determined"?

John Austin

Law and Justice

Justice is the the correct application of the law, as opposed to man's discretion or relative judgment (arbitrariness). Hence, law seeks justice, and not an end to itself - it is a means of achieving justice. Though justice doesn't mean same to everyone, as it seem to favour some, which is the reason for the establishment of law, at least for uniformity sake. So in a situation where both law and justice are fully upheld, it will be difficult to find anything unjust.

Positive Law in short is

Law made by one legally empowered to make rules, having binding effects on the population in general

Law and Legitimacy

Legitimacy is anything in accordance with the law. It is therefore the function of the law to prescribe lawful and regular ways of governing the state. (see S.1(2) 1999 CFRN where it was stated that Nigeria shall not be controlled, by any person or group except in accordance with the constitution (law). Any attempt to rule without the law is known as treason. Legitimacy also connotes the acceptance of the rulers by the people. And it is the law that ensures this. It is through the law that legitimate leaders have the power to command obedience. It confers the rulers the right to rule in certain ways. I.e it backs up their actions. And in a legitimate state, the law is made by both the administrators and the citizens. hence if a law isn't favourable of later repulsive to them, they can legitimately alter it.

Law and Freedom

Man naturally loves freedom and have fought for it in several cases, such as revolt, protest, which eventually led to some countries' independence in early days. Law recognize the fact that man's desire for freedom is innate; it then seek to regulate this freedom in a way that it won't trample against other's freedom. (talk about freedom of speech, libel and slander; of contract & those ineligible for voting) This degree of freedom varies according to systems of government. A democratic state fully well recognises the fundamental human rights, and seeks to uphold it than a fascist state. (In Nigeria case, S46 1999 CFRN provides situation where a citizen can seek redress if his freedom is infringed upon). In short, the law recognizes human freedom and seeks to strike a harmonious balance among them.

Marxism

Marx believed that social stability is only achieved in a society where the working class are exploited. He believes that the capitalists control the instrument of coercion in various fields and institutions such as the army, police & the law, which in turn will suppress the citizens to bow in peace, since they are not as educated or, influential or rich as the former. This has given the bourgeoisie an edge over the working class. To him, that is inequality. He then opined that for equality, peace and social stability to reign, the working class should overthrow the capitalist, since the working class represent the masses to a large extent. That way, at least a good number of equality will be achieved.

'Audi alterem patem'

No party should be punished unheard. i.e hear the other side.

According to _________ there's no separation between law and morals. viewing law as a purposive exercise involving the governance of humans by rules, and as such contains some internal morality.

Professor Lon Fuller, a natural law theorist,

SHAW vs. DPP (Director of Public Prosecutions)

Shaw had published a booklet titled 'The Ladies Directory' in 1962, which he listed and advertised prostitutes, with photographs of their nudes describing their sexual patterns. He was then charged with the offence of 'conspiracy to corrupt public morals' in the Trial Court. Shaw then seek appeal in the House of Lords, and argued on the ground that there was no law as such before. However, upon his appeal, Viscount Sigmond held that the law is not only meant to ensure safety and order, but also to conserve the moral welfare of the state. (Similar case occur in Knuller v. DPP in 1973) This means that what the court frowned at is not the act of prostitution, but manner of its public advertisement.

Law and Sovereignty

Sovereignty as propounded by Jean Bodin, has to do with curtailing the power of those in authority through the law as opposed to the hey days of monarchy. In a democratic state, the law vested sovereignty on the people (for instance S.14(2) vests sovereignty in the people of Nigeria, from whom government desires all power and authority). Hence, the rulers then make law in turn for both the state and the people, and this is obviously an expression of sovereignty. Meanwhile the ultimate expression of sovereignty vested on the people is the power to change elected leaders peacefully, as laid down by the law.

The second element of Austinian definition is?

The sovereign is without legal limitation in the exercise of power I.e he is above the law (an uncommanded commander)

Law and the State

The state consist 4 elements → Definite territory, population, government, sovereignty. Meanwhile, the law ultimately defines the political structure and organization of a state (For instance S.2 1999 CFRN establish Nigeria as a federal nature). The Law also defines the extent to which power is accrued to each organ of government and regulate their interrelationships. (see S.4,5,6 1999 CFRN where power is distributed among the three organs) The state is also created by the society through law. The law grants unto a state the supreme power to rule its citizens within the limit of the law; and also grants her autonomy against external interference. The state then is preoccupied with certain rights stipulated by the law. Government as an element of the state came about as a result of agreement upon the law, as opposed to anarchy

The third element of Austinian definition is?

The subjects must be in the habit of obeying him because of his coercive power to impose sanction

liens

a right to take possession of a debtors property as collateral until a debt or duty is discharged.

injunction

a writ or process granted by a court of equity, and in some cases under statutes, by a court of law, whereby a party is required to do or to refrain from certain acts, according to the exigency of the writ.

Freedom of Contract

as part of the freedom being regulated by law, it prescribed that a person is free to make any contract with anyone on any term he chooses (or might choose not to enter contract). Yet this freedom is limited in the following ways: - its aim must not uphold a crime nor be contrary to public policy. - the law sometimes seeks to control the price of certain goods and services considered essentials. - the law might also disallow a trader from using a certain tradename or trademark that resembles an existing one.

examples of positive law include:

constitution, statutes, case laws, and rules and regulations made by administrative agencies

'crimes without victims'

crime against ones own self. i.e within an individual liberty. Examples include drug addiction, abortion, homosexuality, prostitution etc.

exigency

demands or requirements

Evolution of law

it can be traced to socialisation and association. In communal living, certain habits spring up from the members in their daily living, which make up their customs and then law. They initially resulted to self-help (individualism - talk about Thomas Hobbes Social Contract Theory). It started with customary laws, which were administered by monarchs or elders, who resolve disputes, which was then later on reformed and finetuned formally to form today's modern law.

Conflict or pluralist model

it denies the 'shared valued system', and recognizes the fact that conflict exisits among society/groups, and they're assumed to all have equal power & entitlements. It supports that constant interaction and negotiation between the groups help to attain social stability and equilibrium. It views the state as a 'neutral arbiter', taking no sides in these conflict situations, but providing machinery to stop them, either through political debate or policy-making by the govt.

'nemo judex in causa sua'

one cannot be judge in his own cause. (see Garba v. Unimaid)

implicit means?

something not clearly stated or that gives room for doubt

Pareto theory

states that 10% of the people in the society controls 90% of the resources of the society, while 90% of the people own just the 10% resources.

Formal Justice

states that the court must apply the law strictly. I.e pronouncing the law as it is. (sse Awolowo v. Federal Minister of Internal Affairs) This form of justice is believed to ensure clarity and certainty of the law (see Sheddon v. Goodich where Lord Eldon said 'It is better that law should be certain than that every judge should speculate upon the improvement in it') - it also makes room for impartiality and independence in adjudication.

In KNULLER vs. DPP (Director of Public Prosecutions)

the appellants published in their magazine 'International Times' in 1973, advertisements placed by readers to contact them for homosexual purposes. Following the reasoning in Shaw v. DPP, the House of Lord held that the Sexual Offence Act of 1967 did not grant the publishers the indulgence to publicly encourage homosexuality. They were therefore convicted for the offence of 'conspiracy to corrupt public morals'.

According to Lord Devlin, '.....the loosening of moral bonds is often _________

the first stage of disintegration'.

freedom of speech

the law recognises the fact that man is free to express himself or not. However, in expressing himself, his speech must not reflect slander, neither should his written words reflect libel, if so, he'll be withdrawn such freedom.

Law and Order

the primary aim of law is to maintain order, hence law must be enforced without fear or favour to avoid anarchy. (Just to maintain orderliness, certain rights & entitlements are accorded to the citizens)

What is jurisprudence?

the study of legal philosophy

Rescission

the undoing of a contract; repeal

Political freedom

this freedom include the right to vote; be voted for, or not vote at all. It also involve the right to associate with any political party or not. Yet the right to do these are limited in the following ways: - underaged are disqualified from voting. - someone who doesn't meet the criteria stipulated for registering a political party might be retarded this freedom. - someone who has a bad reputation might also be impeded of this freedom

Open model

this theory seeks to strike a balance between the consensus and the conflict models. According to it, conflict is expected to occur, however, it can be settled in a legitimate way, within the framework of negotiation, arbitration, judicial decision, and electoral balance, without any need for revolution or war.

substantive justice

this theory states that where strict application of the law would lead to absurdity or injustice, the judge may consider extra judicial factors, since that's the only way to maintain justice. This idea is what led to the doctrine of equity. This freedom by the judge is commonly known as 'Judicial Activism' as opposed to 'Judicial Restraint'.