Tag Archives: law

Judicial Precedents for Theories of Law

Case Laws: Judicial Precedents for Law Theories

In answering law questions, it is important that relevant case laws be mentioned to support points. Here are a number of case laws or judicial precedents for various theories of law.

See also: Meaning of Motion in Law

Case laws for theories of law in Nigeria

1. Positive Theory of Law

Uwaifo V A.G. Bendel State

In this case, some of the plaintiff’s landed properties were forfeited by an edict made by the state military governor. The Supreme Court held that the courts cannot inquire into the validity of decrees and edicts, as well as the competence of the governor to make them, nor inquire into whether or not a decree or edict was a “legislative judgement.”

Click here to read about the definitions of Law + My definition

2. Natural Theory of Law

Inasa V Oshodi
In this case, the court held that the ejection of an entire family from a land for the misbehaviour of one of the familiar members was not in accordance with natural law. Even if it was the custom, such a custom was contrary to natural justice.

3. Pure Theory of Law

FGN V Zamai Lekwot & four others
In this case, the defendants were sentenced to death, in accordance with a military decree.

4. Utilitarian Theory of Law

Nzekwu V Nzekwu
A custom which permitted that the head of a deceased husband’s family could singlehandedly inherit, or alienate the deceased’s property, while the wife was alive was held to be uncivilized and repugnant to natural justice, equity and good conscience.

Also see: Definition and Meaning of Law

5. Sociological Theory of Law

Agidigbi V Agidigbi
The Supreme Court reaffirmed that the Bini customary rule of inheritance which allows the eldest son to inherit his deceased father’s personal living house is not repugnant to natural justice, equity and good conscience.

6. Historical Theory of Law

Onobruchere V Esegine
The plaintiff sued for a parcel of land which was pledged to the defendants many years earlier. The defendants asserted that the land was sold to them. It was common ground that the land originally belonged to the plaintiffs. The Supreme Court held unanimously that under the principles of customary law, a pledger always retains the title to a pledged land, which cannot be defeated by a pledge. A pledger has a perpetual right to redeem a pledged land, no matter how long the land has been privileged.

7. Realist Theory of Law

R V Holland
The finger of the deceased was injured by the accused. A surgeon strongly recommended that the finger be amputated, but the deceased rejected the advice. The finger was later affected by lockjaw, and the finger was subsequently amputated, but it was already too late and the deceased died from the lockjaw. The accused was charged with murder and he contended that the refusal of the deceased to accept the advice to amputate the finger was the cause of his death. The court rejected this argument and held that the injury inflicted by the accused was the cause of death. The court convicted the accused for murder.

See also: Comparison and Contrast of the Natural Theory of Law and Legal Positivism

These are some of the many case laws that can be used to support works on or arguments for these theories of law. You could check out several more in law reports, textbooks, journals etc.

Note that these cases may overlap in the theories they apply to. The implication of this is that a case law that can be used to support the Natural theory of law can also be used for the Sociological theory, or Utilitarian theory.
Hence, if you learn these case laws very well, inter alia, writing about the theories of law would be a win-win project for you.

Should you have any question, do not hesitate to drop your comment below.

Credits:

Introduction to Nigerian Legal Method – Abiola Sanni

EZE Malemi – The Nigerian Legal Methods

Pure Theory of Law Meaning and Proving as the Most Acceptable Theory of Law

PURE THEORY OF LAW

Out of the multiple theories of law, I personally do love the Pure theory of Law.

I love the concept and reasoning behind it.

So, this post is not just about the Pure theory of Law, but to also prove it as the most acceptable theory of all. Stay tuned.

To start with, it is worthwhile to note that there are several accepted theories concerning the origin of law.

See also: Definition and Meaning of Law

These theories have been propounded over decades and centuries by many legal and non-legal individuals, philosophers, academicians, etc.

Pure Theory of Law

Road sign

A theory is a specific but comprehensive explanation about certain aspects of how our societies work.

That is to say, a theory of law deals with, specifically or comprehensively, how the society regards the statement(s) of law, and how the law is responsible, directly or by necessary implication, for the behaviour of the society.

See also: Meaning of Summon in Law: Motion and Prayer

These philosophers that have propounded certain theories of law have done so according to their various perspectives.

However a man’s perspective or point of view, is based on his sense experience and reasoning (logical and illogical).

Therefore these perspectives, in most cases, are not universally practicable.

So, it is not surprising to realise that every theory of law leaves a vacuum somewhere. Especially when subjected to critical argumentation, conceptual analysis, and universal scrutiny.

Foundation of other Law Theories: Pure Theory of Law

However, the Pure Theory of Law has shown to be the source and foundation of all other theories.

Pure theory of law states that the validity of a law is based this. The fact that a law is created, and can be traced to, a higher norm.

This school of thought, as propounded by Prof. Hans Kelson, says that law is a system of norms.

Hence, a norm can be traced to a higher norm, and then to another higher norm, to another greater norm, until we reach a non-law created entity, called the grundnorm.

In many countries, the constitution is regarded as this grundnorm, which determines that validity of any other norm made by any agency or body in the country.

Nevertheless, as opposed to this celebrated but controversial believe, many other people have argued that the constitution is, and should not be regarded as the grundnorm of any society.

Paraphrasing the words of Abiola Sanni, ‘the fiction that the constitution is the grundnorm is only a legal fiction.’ Note that this argument not to downgrade the Pure Theory of Law, but to prepare the ground for a greater evaluation.

Pure Theory of Law: The Process of Proof

The validity of a constitution is based on its promulgation into law as the act of the people. I will state The state of the grundnorm in due time, in the course of this work.

But as a matter of priority and importance, the reason for the proposition of the pure theory of law as the most accepted theory of law must be treated first, for it is the main aim of this work.

See also: Natural Theory of Law

Now, let me hasten to state this. The most realistic competitor of the pure theory of law is the Natural law school.

So many people will be of the opinion that the natural law is the foundation of every law. You know, including the pure theory of law.

But in a bid to give solution(s) to the problem of ‘multiple consciences’, things get rough. It is undeniable to state that a natural law/rule must be subject to some logical qualities and evaluations. You know, for us to regard it as law.

The Natural theory of Law poses the problem of Multiple Consciences.

Meaning of the Pure Theory of Law

Checking a Contract

Innate Principles as subject to Pure Theory of Law

Therefore, the principles that tells man what is right, fair, and just, are subject to a higher law.

Aside from this, these principles, which we know to be innate to man, are developed by man’s environment and societal socialization.

So, if we give birth to and a raise a child where fellow humans are killed as served as meals, he would see nothing absurd at all in carrying out, at his conscience convenience, the act we call ‘murder.’

See also: Positive Theory of Law

The child will even see it as a law of nature, too bad! So, these innate principles that define fairness, truthfulness, and justice in man are really subject to a higher norm that I call ‘Societal Behaviour.’

Conclusion on the Pure Theory of Law

Without much ado, it is clear that every other theory of law is, either directly or philosophically, a derivative of the Natural Law. And relies on it for its justification.

If we give critical analysis to The Positive law school, Historical law school, and sociological law school, we can trace them all back to Natural law.

Pure Theory of Law: Definition and Meaning

Road Traffic: Pure Theory of Law

And so can the Utilitarian, Realist, and Marxist.

Therefore, if the Natural law itself, which can be regarded as the father of all other theories, is a mere system of norms, then it is subject to the imperial Pure Theory of Law.

See also: Similarities and Differences between Natural and Positive Theory of Law

 

Referances:

Plato.stanford.edu/entries/lawphil-theory/

Positive Theory of Law and Arguments Against It

Positive Theory of Law

The concept of the ‘Positive Theory of Law’ is not a difficult one to understand.

Well, if it is given the simple explanation it deserves.

And for this sake, it is important that the main words that makeup the concept be broken down.

This is to aid our understanding.

The Positive Theory of Law is one of the most popular theories of law.

What is a Theory of Law?

A Theory of law is a codified explanation on what the law should be. Or what we should regard as such. Its origin, its background, its past, its present, and perhaps, its proposed future.

The meaning of Positive theory of law

Contract: Legal Positivism

The idea of law itself has contributed more controversies and diversities than clarity in semantic analysis.

I regard a Law, in general terms, as that which expresses, indicates, or imposes a consistent reality.

For details see: Law Definition and Meaning

Once anything that we can perceive by the rational capacity or senses of man is consistent, or consistent by natural phenomenon, that which expresses, indicates, or imposes it is a law.

That is, the main attribute of a Law is what I call ‘consistent reality.’

Legal Positivism: Positive Theory of Law

The word ‘Positive’ is also as ambiguous as it can get.

We can take it to mean having optimistic emotions and involvement, being sure and having no doubt. Something conclusive and irrefutable, encouraging good behaviour, affirmative, having electrical charge, among others.

But as regards the ‘Positive Theory of Law‘, the word positive can be taken to be an offshoot of or closely related to the word ‘posit.’

And in simple parlance, posit means ‘to place’ or ‘to put’.

Hence, making a good use of the knowledge of relating ideas we can say:

“Positive Law’ is that which is put or placed on the people by an authoritative ruler, or a body of rulers.”

The main principle of positive law, and one of the reasons why it is different from the natural law, is that we place it on something or somebody, while the latter is innate and inherent.

Another name for The positive theory of Law is Legal Positivism.

John Austin (1790-1859): Definition of Legal Positivism and Elements

The theory of Positive law is majorly and commonly attributed to John Austin (1790-1859). He is a British legal scholar of jurisprudence analysis.

Austin propounded his highly celebrated but controversial ‘Command Theory of Law’ in his book ‘The Province of Jurisprudence Determined’.

He published the book in 1832. In it, he defined law as:

“A command set by a superior being to inferior beings and enforced by sanction.”

There are elements we can identify from John Austin’s explanation of the concept of law.

First is the identification of a particular ruler, who is sovereign – the superior being.

Legal Positive: Definition and Arguments.

Road Sign: Legal Positivism

This sovereign ruler is without legal limitations in his exercise of power. No legal rule binds him whatsoever. He is a dictator.

We can regard the superior being as the ‘uncommanded commander.’

Another element to note is that the subjects of this ruler must accept the act of obeying ‘him’ because of his coercive power to impose sanction.

So, the subjects give their alliance to the ruler out of the fear of punishments.

Positive School: Theory of Legal Positivism

Let’s leave the lapses of John Austin’s principles out of this. And divine The Positive law in simple parlance.

Positive law is simply that law made by anybody, body or bodies, vested with the power to make such law, which is enforced by sanction and have binding effect on the members of the state or society.

See also: Meaning of Motion in Law: Prayer and Summons

From this definition, devoid of any philosophical approach, it can be deduced that the laws and legislations made by the state to govern the affairs of the citizens, noncitizen inhabitants, domestic organizations, and its relation in the international circle are positive laws.

That is to say, the laws that the state makes are positive laws. If a law is not natural, it is most likely positive.

Authorities sanction laws to command prompt and adequate obedience. To create the reality of ‘what is’, and not just ‘what ought to be’ like natural law.

Arguments against Legal Positivism

A concept that possesses merits is prone to relative disadvantages. The positive theory of law is not an exemption.

One of the arguments against the positive theory of law is that it stresses validity rather than rightness.

According to the theory of positive law, a rule is a law once it is made by one vested with the power to make it. Without considering its goodness or badness, rightness or wrongness, or its consequences.

For this reason, the positivist legal method is a ready tool for totalitarianism and authoritarianism.

And if we adhere strictly to the principles of the Positive theory of law, then we make open our doors for dictatorial rulers.

2# Argument against Positive Theory of Law

Another argument against the John Austin’s school and the positivists’ is that law is not always couched with imperative languages, like ‘shall’ and ‘shall not’.

Positive Theory of Law: Definition-meaning

Certificate of marriage: Legal Positivism

There is no doubt that some aspects of constitutional law appear like commands to favour the positivist.

See also: Pure Theory of Law

But this does not dispute the fact that some other does not.

Laws about making wills and marriage contracts are certainly not forced on anyone.

A person may choose to or not to make a will, or get married.

Moreover, to postulate that everybody obeys the law just because of the fear of sanction may be a pathetic error.

Legal Positivism: Conclusion

Let me wrap it all up with an authority, Uwaifo V A.G Bendel State.

In this case, some of the plaintiff’s landed properties were forfeited by an edict made by the state military governor.

The Supreme Court of Nigeria held that the court cannot inquire into the validity of decrees and edicts and the competence of the government to make them, nor inquire into whether a decree or edict was a legislative judgement.

What more, than this, could be said of justice by positive law?

See also: Comparison and Contrast between Natural and Positive Theory of Law

Nevertheless, the principle of common law and doctrine of equity exist still.

Thanks for reading. Leave a comment.

РOne of my posts on Nairaland: Law: Theories of Law

 

Reference:

Nairaland.com

Natural Theory of Law: merits and demerits

Natural Theory of Law

Natural law is a broad and often misapplied term.

It goes around various schools of thought in different disciplines like Philosophy, Science, Law, etc.

In the light of this fact, it is therefore crucial that a clear understanding about the subject-matter be gotten.

This includes the understanding of the keywords, ‘natural’ and ‘law’. So, this post is on the Natural theory of Law.

Natural theory of Law: Definition and meaning

Natural theory of law

Meaning of ‘Natural’ in Natural Law

The first word ‘natural’ (adj.) comes from the root word nature (noun).

We may define Nature as the innate characteristics of a thing, among other various definitions.

However, the definition of the second word, ‘law’, is a question that has agitated the minds of scholars and intellectuals over the years.

This is because the word is all-embracing in scope and dimension.

To read my blog post on the definitions and explanation of Law,click the link.

From my own view, which I submit and propose to be generally accepted, “a law is an expression, indicator or imposer of a consistent reality; proven or hypothetical, sanctioned or unsanctioned, true or mythical, harmonious or antagonistic.”

See also: Positive Theory of Law: Legal Positivism

As you should have noticed, this is a wide view approach. Nevertheless, as regards this subject matter, Law is taken as “an expression and indicator of a reality, sanctioned and enforced by a person, persons, body or institution.

From the foregoing, natural law theory is a legal theory that recognises law and morality with deep connections, if not one and the same.

Morality relates to what is right or wrong, good or bad, acceptable or unacceptable, permissible or impermissible.

NATURAL THEORY OF LAW: SIMPLIFIED MEANING

Natural law is a school of thought asserting that certain rights are inherent by virtue of human nature.

Endorsed by nature, traditionally by God or a transcendent source.

And that we can explain this universally through human reason.

Simply, Natural Law theorists, unlike promulgators of positive law, believe that we define human laws by morality, and not by an authority figure.

Meaning of Natural theory of Law

Natural theory of Law

Therefore, their human nature guide humans to figure out what their laws should be, and to act in conformity with those laws.

See also: Differences between Natural and Positive Theory of Law

Reduced to its simplest form, natural law means what is ‘fair’, ‘right’, or ‘just’. The protagonists of this theory of law include Zeno, Plato, Aristotle, Socrates, Thomas Aquinas, Grotius, and others.

They hold the primary view that there are certain objective principles in everyman, no matter his colour, race or tribe, that tells him what action or any form of act is right, fair and just.

These principles motivate him to do what is good and abstain from what is evil.

Words of Prof. Okuniga: Natural Theory of Law.

Professor Okuniga said in his own illustration. “If ten men from different countries are put in separate rooms, and each of them is asked in the language that he understands, whether it is good tom steal, majority will say no.”

In a nut shell, Natural law refers to the principles inherent to man, which tells him what is fair, good, impartial, right and just.

These principles should serve as the bases for the making of real life laws and orders. Any law made by anybody that is not in accordance to these intrinsic principles is not valid.

I once held_ “The discovery of the positive law is not a shift from the use of the natural law, rather, it is a designed, regular, and enforced reproduction of it.

The reason for positive law is merely to justify the application of natural law.

Hence, when we convict a man, we say to ourselves, “we have done justice,” apparently to satisfy our innate principles, natural law.

See also: Meaning of Prayer and summon in Law: & Motion

Natural law, since its emergence, has bred some major advantages above other schools of thought. Some of these advantages include:

Advantages of the Natural Theory of Law

  1. The development of the concept of equity, human rights, and democracy across the globe.
  2. It is based on reasoning, and not revelation – this allows making it possible for everyone to follow the principles.
  3. It is universal and absolutist; so it is always relevant.
  4. It allows for a clear cut approach to morality and establishes common rules.
  5. The Americans invoked it in their war of independence, as well as the French, during the French revolution.
Advantages & disadvantages of Natural theory of Law

Natural theory of Law

Disadvantages of the Natural Law Theory

However, Natural Theory of Law has its own undeniable disadvantages, and some of these are heighted below:

  1. It is not always a simple school of thought. The determination of what is right and what is sometimes as hard as anything.
  2. Natural law philosophy stresses ‘what ought to be done’ and not necessarily ‘what is done.’
  3. The theory is based solely on right reasoning, which is a criterion that cannot be verified through empirical scrutiny.
  4. There is what we call ‘the multiple-conscience problem.’ That is to say, different individuals have different explanations for, and determinations of, what is right and what is wrong. As regards this problem, we call the Natural Theory of Law ‘a harlot.’

REFRENCES

1. Introduction to Nigerian Legal Method, edited by Abiola Sanni.

2. WEB: Study.com, Wikipedia, allaboutphilosophy.org

3. English dictionaries, Synonym Antonym Learner {app}

4. Wikipedia

Law: Definition, Meaning, Legal Meaning of Law

What is Law? Definition of Law

“A law is an expression, indicator, or imposer of a consistent reality.” I’ll get to explain this definition in a while. Still on Law definition and meaning.

Definitions are essential. Law definition and meaning is not an exception.

And before we begin any subject, we love to give a definition of the subject.

This allows us to have a clue about the subject, and its scope. So, before we talk about law, let’s define it.

This post is on the definition of law, meaning, and more. Yes, definitions of law and meaning.

Complications in Defining Law?

Like some other subjects, the term ‘Law‘ is somewhat hard to define.

This is so because the scope of the word is not even easily understood. People talk about Law from different angles.

We have scientific laws, laws in Economics, human laws, eternal laws, divine laws, natural laws etc.

The large scope of the word ‘law’ has made it difficulty, and nearly impossible to define.

So many people across many field have tried and failed to give an absolute definition to law.

In this post, I would share with you some of the given definitions. And then I’ll tell you about my own definition. Stay tuned.

Law definitions and meaning

Law with Scrabble

It should be of no astonishing effect to realise that the question of the definition for law is not a fascinating one to a practicing lawyer.

That is, a practising lawyer cares less about the definition of law. Well, this is not surprising.

What a lawyer would care about is what the law says about the particular situation of his client.

And possibly, how best to twist the wheel of justice to his side of the balance.

Lawyers care about ‘what does the law say about this’ and not really ‘what is law’.

Law: Meaning_Explanation

But even as insignificant as it may look, the quest for a rigid definition for law as followed us into our present age.

Like I said supra, so many people have tried to give a good to law.

The issue behind this quest is really a jigsaw because the word ‘Law’ is as all-embracing as it can get.

The word ‘Law’ may be as a general and loose term. And in another instance, a technical and professional terminology.

There is a saying, ‘Where there is no law, there is no crime.” Law is the bedrock of any society.

Families have laws, communities have laws, people have personal laws. The nation has a constitution – the foundation of all its laws, in most cases.

Laws are all around us, everywhere in different forms. So, a definition a person or group gives is often limited by many factors.

Law Definition and Meaning

How then do we fix this? The element of law is as old as man. I think the existence of man himself is an effect of a law-cause.

How can humans explain adequately through their senses a term that is in itself the root of their senses?

How can we define our definition?

If terms like economics, religion, philosophy etc., are difficult to define, what more can we say of law?

What really comes to our mind when we hear the word ‘Law’?

Some rules and regulations given by an authority, according to which our actions and inactions are determined?

Perhaps, some other terms like law of gravitation, identity, cosines, diminishing returns, double negation, excluded middle and energy, etc.

Whatever it is that comes to our mind, we can also give a definition to law, true and direct.

Defining law is a jigsaw, but jigsaws can be solved.

Some definitions of law

Let us consider some of these definitions.

According to The Oxford Advanced Learner’s Dictionary -9th edition.

“Law is the whole system of rules that everyone in a country or society must obey.”

According to Merriam Webster Dictionary.

“Law is a binding custom or practice of a community. A rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority.

What is Law: Meaning and Definition

The Gavel: Meaning of Law

The whole body of such customs, practices, or rules, and the control brought about by the existence or enforcement of such law.”

According to Herman Max Gluckman (1911-1975). Law is, “The whole reservoir of rules on which judges draw for their decisions.”

Prof. John W. Salmond (1862-1924), defines law as: “The body of principles recognized and applied by the state in the administration of justice.”

Let me go a step further in defining Law.

Law is a body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behaviour of its members. (Microsoft Encarta Premium 2009)

Also, according to Abiola Sanni, in ‘Introduction to Nigerian Legal Method’.

Law is, “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 the members of a given state or society.”

Meaning and Definitions of Law

These definitions, as far I can guess, should serve goodly for institutional purposes.

But to satisfy philosophical tendencies (if possible), let me explain to you my own definition of law.

After my Lecturer talked of the complications in defining law, as well as the failures, I began to think. And to God’s glory, I came up with this definition.

Pay close attention to this definition of law. It is not of the regular approaches at all.

“Law is an expression, indicator, or imposer of a consistent reality.”

This could be proven or hypothetical, sanctioned or unsanctioned, true or mythical, harmonious or antagonistic. In whatever way, it is still a Law.

Here, the word reality is anything that may be perceived by human senses, or subject to rational deliberation.

Let me explain.

A law may state that anything thrown up, unsuspended in space, must come down.

This is a law because it is an expression of a consistent reality. If you throw something up now, it comes down. If you throw it tomorrow, it would still fall. So, the result/reality is consistent, therefore it is a Law.

More on ‘what is Law?’ Law Definition and Meaning

Another example of law as an expression of a consistent reality is this. “When there is increase in price, there is decrease in quantity demanded, and vice versa.”

Law: Definition, Meaning, Explanation

Cars on street: Meaning of Law

This is the law of demand. Many other laws of like pattern can be used to explain this aspect of the definition.

The law that says, “He that is guilty of murder must also be killed,” is an imposer of a consistent reality.

The reality here is the death or punishment of the person that is guilty of such thing defined as murder.

If this law is followed, it is obeyed. It this law is not obeyed, it is abridged. In either way, it remains a law (perhaps, of the state.)

If the enactment ceases to command a consistent reality, then ‘it is’ no longer a law, but ‘it was’.

“Every metal affected by fire must turn hot.” This could be law, an expression of a consistent reality.

It seems one of the main attributes of a law is that it initiates a consistent reality.

Whenever this reality seizes to be consistent, then the law seizes to be a law. We may use the verb ‘was’ in such situations, as stated supra.

Most laws made by superior beings, superior bodies, or the state, are indicators and imposer of consistent realities.

I hope my definition is clear to you now.

Conclusion: Meaning and Definition of Law

There is no reason whatsoever to assert that this definition may not be defective in some sense and situations. I do not affirm that its 100% yet.

But until one of these situations is brought to my realisation and justified adequately with sufficient rational evidences, I guess this definition satisfies all propensities to be regarded as a reasonable all-embracing definition of LAW.

According to Professor Okuniga, nobody including the lawyer has given. Nobody including the lawyer is giving. And Nobody including the lawyer will ever be able to give a definition of law to end all definitions.

But we do rest our hopes on these word? For what lies behind and before us, are tiny matters to what lies within us. If you get my gist.

So, there you have the definitions and meaning of law.

I hope I’ve been able to help your research in someway, or increase your knowledge.

Thanks for reading. Leave a comment.

 

References:

Wikipedia

Merriam Webster Dictionary

Oxford Advanced Learners Dictionary

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