Tag Archives: legal definitions

Classifications of Law should be the Lawyer’s Servant and not his Master

Classifications Of Law as servant Not Master

It is important to know this. That the classifications of law are the lawyer’s servant, not his master.

With simple semantic analysis, the classifications of law are the classes or groups into which laws have been divided or segmented, according to some common relations or attributes.

Some of these classifications of law include public and private law, civil and criminal law, municipal and international law, substantive and procedural law, among others.

See also: Meaning of Motion in Law: prayer and summons

It is crystal clear that law have been so classified in order to provide for orderliness in the process of applying them to various kinds of cases.

With these classifications of law at hand, it becomes extremely easy for the lawyer, as well as the court as a whole, to know what is what, and which is which.

In other words, the classifications of law are necessary for a simple, procedural, and even rigid judicial process. The classifications of law are therefore relatively inevitable in the modern judicial and legal process.

Legal Approach: Classifications of Law as servant not Master

However, the various classifications of law should be the lawyer’s servant and not his master. This means that in legal practice, the lawyer should not be so interested in classifying the laws in a legal proceeding, that he forgets his main obligation to either justify or clear his client.

In other words, the lawyer in practice should not find it as a deliberately mandatory exercise to classify the laws in his case under the different categories.

If a lawyer does this, he is making the classifications of law his master, rather than his servant. The lawyer in practice should be able to exercise adequate and knowledgeable mental propensity in the terms of the classifications of law.

See also: Law definitions and Meaning

That is to say, a lawyer in practice knows, merely seeing the fact of a case, the classification(s) of law exhibited in that case without subjecting himself to rigorous mental engagement on classifying the laws in a case.

This is the only way a lawyer can make the classifications of law his servant, and not his master.

Reason: Classification of Law as servant not Master

The reason why a lawyer must make the classifications of law his servant, and not his master, is very simple and straightforward.

One of these reasons is that distinguishing in practice between one classification of law and the other, may not be as clear-cut as it seems to appear in theory. So, a legal case can be subject to more than one classifications of law.

When this happens, it would not be meticulously phenomenal of a lawyer to lunch into distinguishing the various classifications of law.

See also: Natural theory of Law

The reason behind these clashes among the classifications of law is that they all may address different issues that arise from the same event. of course.

Example: Classifications of Law

A very good example of the classifications of law that clashes is the civil and criminal law.

The state designs the criminal law to protect the society, whose inhabitants the civil law also safeguards as a matter compulsion.

Hence, it is not usual to find out that these two classifications of law clash in cases relating to them.

Tuberville V Savage (1669): Classifications of Law

In the case of Tuberville V Savage (1669). Savage was charged for assault by Tuberville and was convicted for the tort of assault (an indication of civil law).

The dictum of the king’s Bench, which stated the requirement for assault and reasonable provocation to assault to be considered.

This precedent was valid for both civil and criminal law for the offence of assault. This case shows, to some extent, how criminal law overlaps civil law.

See also: Pure Theory of Law

Moreover, consider the mock case between Paso and kudiowo on page seventy-seven (77). ‘Introduction to Nigerian Legal Method’, edited by Abiola Sanni.

In this case, Paso is trying to force his late brother’s wife, Kudiowo, to marry him. This is on the basis of divine and customary rules. While Kudiowo opposes the idea, stating a part of the positive law.

Classification of Law as servant, not Master: Not ideal

Here, it would not be ideal for a lawyer to dive into trying to make classifications for each addressed form of law in the scenario.

The lawyer in practice needs to go into the efficiency of more specific issues. Mere classifications of the addressed laws may be a waste of time. Yes, it would not.

The words of the Abiola Sanni put the situation thus:
“…as we can see from the foregoing, there is no water tight classification of law. For example, so much of Nigerian land law is now public law with the enactment of the Land use Act. While the law of taxation is as much private law as it is public”

Conclusion: Classifications of Law should be the Lawyer’s servant.

We can therefore conclude here that the lawyer in practice should not ultimately find interest in classifying the laws in the case before him. Or turn the act of classification into a compulsory act.

But to be so built up to the state that when he merely sees the fact of a case, he could easily infer the related classifications of law. To put them to perfect use. And even to be able to bend the law to his benefit, if need be.

Any attempt outside of this, that makes the act of classifying laws a rigorous and compulsory tack, definitely makes the lawyer a servant of the classifications of law.

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

This approach is inappropriate. Why? The classifications of law should always be the lawyer’s servant and not his master.

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/

Natural and Positive theory of law: comparison and contrast

Comparison and Contrast of Natural and Positive Theory of Law

These two are most likely the most popular of the theories of Law.

Perhaps, because they are simple and easy to understand.

Nevertheless, they can also be confusing or hard to get.

So, it is important that we know the similarities and differences between the two.

See also: Law definition and Meaning

This post is about the similarities and differences between Legal Positivism and Natural Theory of Law.

Differences Between Positive Law Theory and Natural Theory of Law

According to Heinrich A. Rommen, “Every generation, it is said, finds now reason for the study of Natural law.”

This assertion underscores enduring nature of the running battle between natural law and positive law.

Over the years, there has been an undeniable argument. This is among the protagonists of natural law, and those of positive law.

This argument has been based on the answer to a question. “What should determine the validity of a law?”

Differences between legal positivism and Natural theory of law

Legal Positivism & Natural Theory of Law

Should a law be valid because it is moral. Or because it is enacted by a body of persons (legislators) – promulgated and empowered to make such law?

A balance point can be met in the effort of giving these two theories detailed and valid explanation.

But, so many facts have shown that they contrast beyond any reasonable doubt.

And in order to get a good grasp of the differences of these two legal conceptions, a clear understanding of what they mean must be acquired.

Positive Law Theory: Legal Positivism

A law, in accordance to Positive Law, is the rule put, placed, or imposed upon the situations by the ruler.

According to John Austin, who appears to be one of the most prominent protagonists of the Positive Law Theory, in his book titled, ‘The Providence of Jurisprudence Determined,’ he defined law as, “a command set by a superior being to inferior beings and enforced by sanction.”

This definition is based upon his propounded ‘Command Theory of Law.’

According to him, the superior being is sovereign. We may describe the sovereign being as ‘The Uncommanded-Commander.” So, according to positive law, a law is valid because a person or body we empower to do so sanctions it. And such law is binding on all members of the society or state.

Natural Theory of Law

On the other hand, the Natural Theory of Law is a philosophical and legal belief that all humans govern themselves by basic innate laws. Or laws of nature. Which are separate and distinct from the legislated laws. This theory is somewhat an opposite of the positive law theory.

The Chief protagonists of this legal theory include Thomas Aquinas, Zeno, Socrates, Plato, Grotius, Aristotle, etc. It is difficult to give a precise concept of the theory of Natural law, because of the so many theoretical views attached to it.

However, the basic moral principles are unchanging, and they include the following. The idea that basic moral principles validate the law, the existence of Natural rights, and the ideology that just law(s) bind in conscience.

This theory, Natural Law, runs on the idea of perfect law based on equity, fairness, and reason. By which we can measure all man-made laws. And to which they must (as closely as possible) conform.

That is to say, according to Natural Law, any positive law must conform to the innate principles of man.

Differences between Legal Positivism and Natural Theory of Law

Here are some of the differences between the Positive and Natural theory of law.

1. The determination of validity of laws:

While the Positive Law states that a law is valid if a body that we empower to do so makes it. And binding on the subject.

The Natural Law Theory clearly states that a law is valid if and only if it conforms to the innate principles of man.

Differences between Positive theory and Natural theory of Law

Positive & Natural Theory of Law

In the case of Holman V Johnson, the plaintiff sold tea to the defendant in Dunkirk_ France, with the full knowledge that the tea was to be smuggled into England.

According to the dictates of Positive Law Theory, the contract in the scenario above is legal, because in the principles of International law, ‘no country ever takes notice of the revenue laws of another country.’

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

However, when we subject it to the critical analysis of natural law, this contract is unfair, false, unjust, and should be held null and void.

2. Moral Principles

Natural law is typically based on moral principles, natural order, and ethical codes that people share as human beings. While we expect people to follow positive law as legal rules.

3. Good Reasoning

Natural law is, to a very great extent, based on good reasoning. While Positive law is based on enforced rules, which people follow enforce-fully.

See also: Pure Theory of Law

4. Multiple Conscience Problem

Also, Natural Law theory is subject to the problems of multiple consciences. This is almost impossible with positive law, where laws are relatively constant and definite.

5. While the Natural Law Stresses what we should do, rather than what we do. Positive law stresses what we do, and not what we should do.

Comparison & Differences: Legal positivism & Natural theory of Law

Similarities and Differences

Conclusion: Differences between Legal Positivism and Natural Theory of Law

It is noteworthy at this point that in spite of the running battle for supremacy, experience has shown that both the Natural Law and Positive law can co-exist within the same framework.

 

REFRENCES

1. Natural Law Vs Positive Law (comparison of contents and functions) by 130601052; web.

2. Introduction to Nigerian Legal Method, edited by Abiola Sanni.
3. Web; bartleby.cm-the difference between Natural Law and Legal Positivism Essay.

4. study.com/academy/lesson/natural-law-theory-definition-ethics-examples.html

5. philosophy.hku.hk/courses/law/Positive%20Law%20hnd.html

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