LAW, ORDER AND JUSTICE

One of the most uncertain and unsettled discourse about law is the definition of law itself. There appears to be no generally acceptable definition of what is law. The various definitions of law given by philosophers and jurists were influenced by their philosophical background or school of thought.

1. The Command School (Jeremy Bentham and John Austin):
          This school viewed law as a command set by a superior being to inferior beings and enforced by sanctions. The superior being is the sovereign, while the inferior beings are his subjects. John Austin, a chief proponent of the command theory, defined law as the commandment of the uncommanded commander. Law, for him, is the command of a sovereign enforced by sanction and the purpose of sanction is to enforce obedience by the threat of civil consequences for disobedience.
          Criticisms: a. Laws are not always couched in an imperative language as propounded by Austin e.g. rules relating to wills and marriage contracts b. the theory does not examine the propriety (goodness or badness) of the rules laid down; the theory is only interested in the legally authorised lawmaker c. the idea of an ‘uncommanded commander’ is only possible in an absolute dictatorship where the society is governed according to the whims and caprices of the dictator d. many obey the law not because of sanction, but because it accords with their normal way of life or because they see it as logical and agree with it in principle. 
2. The Normative School (Hans Kelsen and Hart):
          According to this school, law is a system of norms. A law is valid if it has been created by a norm which itself has been created by a higher norm within the legal order. The logical connection of norms in this order will continue until we arrive at a non-law created entity, which is called the grundnorm. While every other norm is generated from the grundnorm and their validity is traceable to it, the origin or validity of the grundnorm is not traceable to any norm.
          Criticisms: a. the theory stresses the formal validity of law rather than its functions and effect in the society b. it is not easy if not impossible to determine the grundnorm in the modern society.
3. Legal Realism School (Oliver Wendell Holmes and Karl Olivecrona):
          This school focused mainly on the court system with the ultimate objective of reforming the judicial system. They were of the view that in analysing law and the legal system, too much attention was often paid to the bare rules while enough attention was not paid to the human factors in the application of the rules to specific cases. Hence, they were of the view that the judicial process is not an objective exercise as it may look in the books. This is because the judge and jury are often influenced by certain extra-legal factors more than the evidence adduced at the trial and the arguments of the parties e.g. background.
          One of the main objectives of this school was to make judges conscious of their latent prejudices and thereby encourage more objectivity in judicial decisions. The realists did not want the judicial system biased in favour of the ‘good boys’ and against the ‘bad boys’.
4. Natural Law School:
           The protagonists of natural law theory hold that there are certain objective principles in every man, no matter his race or colour telling him what is ‘fair’, ‘just’, or ‘right’; motivating him to do what is good and abstain from what is evil. These principles can be deduced from nature; they emanate from some supernatural force or abstract universal truth and exist irrespective of any human enactment.
          The natural law philosophy has served as the basis for the development of the concept of equality, human rights, democracy across the globe. Natural Law serves as a test for the ‘validity’ of man-made law. However, natural law philosophy stresses ‘what ought to be done’ and not necessarily what is done.
          The exponents of the natural law school include Plato, Aristotle, Thomas Acquinas, and Immanuel Kant etc.
5. The Historical School (Friedrich Savigny):
          This school posits that there is what is called the spirit of the people, volkgeist, which binds the people of a particular society together and distinguishes them from any other people. Accordingly, before a law is made for a society, there must a good understanding of the history of the people. In essence, for a law to be valid, it must accord with the history and the way of life of the people i.e. their customs.
          The history school tends to give the impression that it is past and not the will and objectives of a society that determine its law and future. If the theory were to be followed dogmatically, it may hinder the establishment of some desirable radical reforms, which may transform the society for better. 
6. Sociological school (Eugene Ehrlich):
          According to this school, it is the society’s value and conduct, which determine what the law is and not the rules laid down by the sovereign. Their analysis was that one could not know the law of the society by merely reading through the formal legal sources. Rather, one should go to the society to appraise how that law is obeyed by the society. In essence, it is the living law that reflects the values and dominates the societal life.
7. Utilitarian School (Jeremy Bentham):
          The school posits that the task of law is to promote communal utility (that which affects people’s happiness). Government by making the proper law, should seek to promote the greatest good of the greater number of people.
          Bentham identifies four main utilities: security, equality, liberty and abundance but gives priority to security. In order to achieve its objectives, the law must balance the individual’s interest with that of communal interests.
          A major criticism of this school is that it fails to solve the problem of how the balancing of both individual and communal interest can best be achieved.
8. Marxist theory of law:
          The theory sees law not as an expression of the people but the will and interests of the capitalists. Marx sees law as part of the state machinery with which the capitalist rulers exploit the masses. In essence, law is viewed as a necessary and useful tool in the hands of the strong and powerful for the enforcement of their will against the poor, weak and defenceless.

 

LAW AND ORDER

          The classical function of any government is to maintain law and order, protect lives and properties within its territory and ward off external aggression. Without order, life is chaotic and people die.
          There is a remarkable relationship between law and order, for order in most modern societies can’t be attained except through law. When there is order in a country it results in favourable situations such as economic growth and development.
          According to Prof Oyebode, law is a technique for social ordering. This ultimately implies that in order to condition people’s behaviour or attain order in the society, the most guaranteed way is to do this through the instrumentality of the law since law imposes an obligation to behave or act in a prescribed manner. However, some believe that order comes irrespective of the presence of law. In other words, order is not dependent on the law.
          Ultimately, a society without order is synonymous to a society without law but this is not to say that a society with law is always in order e.g. there could be a breakdown of law where people refuse to obey such laws.

LAW AND JUSTICE

          The first issue here is whether law and justice could be said to be synonymous. Justice and law could be said to be synonymous in ordinary parlance where justice was begotten from the correct application of such a law as opposed to arbitrariness. However, law is not synonymous to justice for not every law is a just law or has the element of justice embedded in it. Most writers believe that law is remarkably different from justice because justice exists outside or beyond the law (law exists within a system but justice exceeds the limits of the system by demanding from it that which it can’t provide). They argue that law’s function is to calculate between competing claims and give judgment but justice is not a mere calculation. 
          Another issue is whether law should be according to justice or justice according to law. According to Professor Oyebode, this troublesome antimony must of necessity be resolved in favour of the former (law according to justice). The lettered professor of law is of the view that Nigerian judges should adopt a more liberal approach in the interpretation of laws especially when the laws appear to be manifestly unjust or could deny justice to be done to the party based on technical ground or procedure. In essence, the judges should stop feeling compelled to apply justice according law rather than law according to justice. An example is the issue of locus standi in environmental litigation which has struck out a lot of claims on the ground of little or no interest in a particular case. But other commentators and jurists like Geoffrey Hazard and Roscoe Pound choose ‘justice according to law’ over ‘law according to justice’ for the major reason that the former would be more predictable and certain instead of according to the whims and caprices of judges or tribunals. They submit that though justice according to law may be detrimental to an individual in a particular case, law according to justice should be rejected because of its relativity and uncertainty in a complex and modern society (justice is in the eye of the beholder; what may be justice to one person may not be justice to another person). See also the dictum of Oputa JSC (as he then was) in Josiah v State where he noted that justice is a three-way traffic; justice for the accused, justice for the deceased and justice for the society at large.
          We now proceed to the question of whether there can be justice without law and law without justice. It is the opinion of this writer that justice without law may be impossible since history has shown that justice itself was an offshoot of law. Thomas Hobbes noted that life in a state of nature was solitary, poor, nasty, brutish and short. Hence, the need for human society to be regulated in order to eliminate a system analogous to Might is right. On the other hand, this writer would argue that there could be law without justice in the light of the positivist school of thought. An example is the Tenancy Law of Lagos 2011 which expressly excludes some areas from its application and in our opinion is unjust because it is tantamount to an ad hominem legislation for law should be general in character, applying to a generality of people without any special preference or dislike for any class (remember the eight desiderata propounded by Lon Fuller).
          On the issue of which is superior between Law and Justice, there are two schools of thought. The positivists hold the view that law is superior to justice only in the sense of its application for a law is imperative on its subjects irrespective of whether the law is just or not. On the other hand, the natural law theorists who believe in the goodness or justice of a particular law, if such ideology informs the law makers in the making of every law then justice is superior to law only in its making.
          Ultimately, we submit that it is not entirely possible to achieve a perfectly just society through law due to the fact that not all laws are in themselves perfect. However, a just society can be achieved to a very large extent or degree but never to the point of perfection.
          In conclusion, there is a remarkable connection or relationship between Law, order and Justice. Apart from the fact that law is the means to the attainment of order and justice, it is our view that where in a particular case based on special circumstances and there is the existence of a conflict between order and justice, the former would prevail for it is the concern of the law through the courts to maintain order even where the decision is considered to be adverse on one of the parties to the dispute. In fact, it is our view that justice can’t exist in a chaotic society. 
Other points worthy of note
          There are two types of justice; natural justice and legal justice. Natural justice is a concept founded on rationality. The justice of a thing in terms of the nature of the thing. Anything contrary to the thing is unjust. Natural justice refers to a duty to act fairly. The two pillars of natural justice are: nemo judex in causa sua (you can’t be a judge in your own cause) and audi alteram partem (hear the other side). On the other hand, legal justice refers to the resolution of dispute by a court according to the principles of law concerning that case. The question is usually whether the procedural method had been followed.
          Disadvantages of Legal Justice: 1. Rigidity: Undoubtedly, the law fails to conform to the requirement of unforeseen cases. Since society is complex, it is not possible to frame a legal role to cover every eventuality. See the kogi case. 2. Conservatism: since society changes, the law must take account of the view of the society on those change. See the American example: segregation Brown v Board of Education. 3. Formality or Technicality: law places premium on both substance and procedure. This is one of the main reasons why cases last long before determination. 4. Needless complexity.
          Advantages of Legal Justice: 1. Certainty and predictability. 2. Impartiality: it doesn’t allow the judge to give verdict based on his precept of what is just; he must have recourse to the law which must guide him in dispensing justice 3. The reasoning of man is too fallible in guard to achieve the principle of justice. The rules of law represent the collective wisdom of the community. The judge by utilizing the collective wisdom of the community as recorded in the law is more likely to adduce sound conviction unlike if he had relied on his own individual judgement.

Comments

Popular posts from this blog

PROMOTERS AND PREINCORPORATION CONTRACTS

CORROBORATION

LAW AND REVOLUTION