ANALYSIS OF THE VARIOUS SCHOOLS OF THOUGHT IN RELATION TO THE MEANING OF LAW

CHAPTER 1

GENERAL INTRODUCTION

1.0.0: INTRODUCTION                                       

Man is by nature a social animal desiring the companionship of his fellow and in productive times, he intended to form tribes, groups, or societies, either for self preservation or by reason of a social instinct. If a group or society is to continue, some form of social order is necessary. Rules or laws are thereafter, draw up to ensure that members of the society may live and work together in an orderly and peaceable manner. If the rules or laws are broken, compulsion is used to enforce obedience.

Generally, law can be defined as a body of rule designed or formulated to guide human conduct or actions which are enforced among the member of a given state or society.[1]

However, in order to answer the questions ‘what is law’ and most particularly or logically give a rational answer arrived at a just conclusion. It is most pertinent to examine the views of different scholars and writers on meaning of law, this view, otherwise known as school of thought, jurisprudence, philosophies of law or theories of law etc. For instance natural school lead by Acquina. He sees law in a simplest form, law is what is fair, just, right and good.[2] The positivist sees law as laid down by a sovereign or his agent. This agent may take the form of statute or case laws otherwise called judicial precedent.[3] To the historical school law is concerned with the study of existing law in relation to its historical root and growth.[4] The belief of sociological school of thought was that the real law of the society was not what is contained in the formal legal sources such as statute and decided case but the prevalent norms and value in the society.[5] While to the utilitarian, law seek to promote utility.

It should be noted that there are other schools of thoughts which have assigned various definitions to the term “law”. But in-spite of the varied meaning given to law, answer to the question what is law, seemed to have remained elusive. What should be borne in mind is that it is only when rules represent the notion of good and bad, they are rules of morality. This means that sanction and obligation, are essential element of law. It means that where there is an obligation or duty a breach of it, attracts penal actions which would be imposed against the deviant, at the instance of the injured party which under the rules of criminal procedure, is the state.

1.1.0:   BACKGROUND OF THE STUDY

Very few, if any, areas of law are speared the problem of definitions, even the meaning of the phenomenon law is not settled with any clear finality. According to Hart, few questions concerning human society have been asked with much persistence, and answered by serious thinker in many diverse strange and even paradoxical ways as the question “what is law”.[6] So it is that much energy has been dissipated in an attempt to find a satisfactory answer to this apparently simple question. Fortunately, the question may not be of equal practical significance in the determination of rights and settle disputes. A claimant in Tort, for instance will be more concerned with showing the constituent elements of an alleged tort than the definition of law which would have little or no bearing on his action.

1.2.0:   OBJECTIVE OF THE STUDY

It is the aim and object of this project work to analyze the meaning of law vis-à-vis different schools of thought  propounded by the jurist and the school of thought that take centre stage so to say in the Nigerian social experiences shall also be considered.

1.3.0:   FOCUS OF THE STUDY

This research work will focus on the definition, description or meaning of law vis-à-vis schools of thought or theories as propounded by the said different scholar. These schools are: The natural school, the positivist school, the realist school, the historical school, the utilitarian school and the sociological school etc.

The analysis of these schools will be central focus of this research work. In addition, judicial decision of the Nigerian courts as to the meaning of law will be subsequently looked at. Also the school of thought whose ideology is highly more obtainable in the Nigerian social experience shall be emphasized and the argument, is whether or not the aforesaid school of thought in the real sense of it take the centre stage shall be put forth not leaving out the criticism of each school.

1.4.0:   SCOPE OF THE STUDY

The research is limited to the definition put in place by the scholar such as such as Jeremy Bentham, John Austine, Hans Kelson,Thomas Aquina  to mention but a few. These scholars have done a great job, putting in place a series of definition of law owing to their specific different backgrounds. Yet the question as to which of these definitions, descriptions or meaning should a student of law or a learned person or even a lay man align with. However, this research work will not propound a new theory or definitions of law, rather, than the definitions  advanced by the different scholars which is meant to be analyzed, the Nigerians authors conception of law and also the Nigerian courts will be used in arguing for the particular school of thought that is, paramount in the Nigerian social experience.

1.5.0:   METHODOLOGY

The research methodology adopted in this research work is mainly primary source and secondary source of law. The primary source of law includes statutory book and case law. The secondary sources include scholarly works by prominent authors, articles in journal and useful materials necessarily to facilitate the purpose of this project.

1.6.0:   LITERATURE REVIEW

This is very challenging area of law which has been the subject of much academic interest. Every leading textbook on jurisprudence and legal method discusses the subject matter. For instance A.O. Sanni writes “the various jurist who propounded the theories came from significantly, diverse background and orientation. Some of them were academicians of various disciplines such as law, history and philosophy, while others were clergyman, judges etc. The difference of their background and experiences undoubtedly informed their cardinal conceptions of law from different angles. For instance, the conceptions of law by a judge will be different from that of the accused. If a legislative or a judge should find himself in the shoes of the accused, the view of the law might become altered. He further posited a comical story of five blind men who attempted to describe an elephant. They gave the description as to how they have felt the elephant thought all were right, since they can not see, yet they were all wrongs. He concluded with the quotation of Prof. O. O. Okunniga that:

“Nobody including the lawyer has offered, nobody the lawyer is offering, nobody including the lawyer will be able to offer a definition of law to end all definitions”[7]

He contended that it is safer to conclude that all definitions are essentially arbitrary and ad hoc. A preposition therefore emerged that no definition of law is right or can be right in a sense that it is all-embracing and no definitions can be using because it is not all-embracing. Therefore no definition of law to end all definitions[8]

According to Dennis Lloyd, he sees the term ‘law’ as “one of the institutions which are central to the social nature of man and without which he would be very different creature”.[9] Opposing views have emerged on its very essence. The ensuing theses and an theses are vividly expressed in the contrasting notions of law as an artificial contrivance as against law as a spontaneous outgrowth devoid of any human authority or will. In the one case it is founded on the will of an omnipotent authority and in other favoured by divine or natural growth and above the dictates of any human sovereign. Law may therefore, be process either as a body of rules flowing downwards from the fountain of a determined sovereign authority like the positive do or as sprouting upwards from the deep recesses of society, energized by its inherent force and passing through independent channel like the naturalist do.[10]

J.O Asein writes on the meaning of law as ‘The divergence of views on the essence of law could, however be explained by nothing that each schools of thought is influenced largely by its peculiar social and political experience, historical context and chosen points of emphasis while some authorities approach the question by reference to formal characteristics of law, others attempt to formulate ideal roles which they think it ought to play in the society or adopt a more functional approach by highlighting its actual operation in practice and the resultant impact on the society[11]. For the benefit of the student of law yet unfamiliar with the intricate philosophical labyrinth of jurisprudence, the nature of law will be dealt with, extensively in chapter three of this research work, under the major school of thought.

From the  onset it appears that the writers that discuss this subject matter writes to chose a kind of middle course in the definitions of law given by the different scholar.

What does the law seeks to achieve? This is question asked by Salmon and Acquina.[12] By way of answering the question they try to explain the meaning of law. One answer is justice. They claimed justice as the goal of law, indeed to them; it is a logical part of the every notions of law. For to Acquina, following Augustine, an unjust law is not law, while to Salmond law is those principle applied by the state in the administration of justice.[13]

It is in my view to state, in relation to what the different writers commented on that, since the scholars of the different schools propounded their theories owing to the difference in their background as an academician, clergyman, lawyers, historian, psychologist, sociologist etc. Thus, this informs them that, their definitions of the theory as regard meaning of law, cannot be jettisoned as it can be co-related with one another and serve the purposes for which they were so propounded. It is pertinent to note that even if there is preference as to a more generalized form of jurisprudence, it must be borne in mind that the search for universal elements, whether in the realm of concepts or in that of actual patterns of social, behaviour, may prove somewhat unrewarding. Hence it is probably wiser, if untidier, to continue to make do with partial perspective per se on the basis of particular interest, though together as far as can be done, by more open minded mutual correction and supplementation.

1.7.0:   DEFINITION OF TERMS

Law: law is obligatory rule of conduct, the command of him or them that have concise power (Hobbes). A law is a rule of conduct imposed and enforced by the sovereign (Austin). But law is the body of principles organized and applied by the state in the administration of justice (Salmond). Blackstone, however, mentioned that a rule of law made on a pre-existing custom exists as positive law apart from the legislator or judge.[14]

Jurist: Jurist is the one who is versed or skilled in law answering to the Latin “juri paritus” (q.v) A legal scholar.[15]

School of Thought: A belief or system of beliefs accepted as authoritatively by some group of school.[16]