CHAPTER 1
GENERAL INTRODUCTION
1.0.0: INTRODUCTION
The predominance of a set of rules guiding human conduct has always being a prominent feature of any given society. Hence, it is undeniable that the doctrine of natural law together with the principles of the law of negligence are of immense value to the human race.
Thus, natural law was the first socio – political theory that impels us to discover the need to realize and appreciate how moral objectives and reasons can relate to law, it further leads us to exercise our minds on issues such as what good law can be used to achieve for human society.
According to Finnis,1 the objectives of natural law is to identify the conditions and principles of practical mindedness of good and proper order in the society. It is the postulation of positive hope for the survival and continuous advancements of human
1 Elegido J.M Jurisprudence, Spectrum books pg. 54
race. Evidently, the theories of classical natural law has been seen to have made great impact on the Nigeria Legal System with particular reference to law of Negligence.
However, in order to guarantee the continuous existence of any society, there is need to maintain an irreducible minimum bond of moral belief and reason. In essence, as it is natural that no man should do any act or omission that will endanger others, the law of negligence presumes that, a man owes a duty of care towards another in ensuring that, he does not engage in any activities or fail to do an act of which may pose a consequential injury on another man. There is further presumption of this law that, the natural consequence of a man?s action is intended by him as he ought to have foreseen what will be the outcome of his actions or omissions.
In other words, a man is expected to take extra care and caution in his doings so that, if he acts in contrary, a case of negligence will be duely established i.e a breach of a legal duty of care. The basic rule according to Peason J2 is that;
‘Negligence consists in doing something which a reasonable man would not do in that situation or omission to do something which a reasonable man would have done in that situation’.
2 Dias, Jurisprudence 5th Edition Butterworths London pg. 161
To the naturalist, the essence of natural law may be said to lie in the constant assertion that, there are certain objective moral principle which can be discovered by reason. From the foregoing, it is of course no doubt that, a careful analysis and appraisal of the subject matter under consideration will definitely reflect that, the law of negligence has a particular term of reference to natural law.
So far, natural law thinking has occupied a pervasive role in the realms of ethics, politics and law from the time of the Greek civilization.
Essentially, it has afforded a moral justification for existing social and economic system and other legal systems. By arguing what “is” the law is based on a higher law dictated by reason so is also what the law “ought” to be. Therefore, as a background to this study, the natural law philosophy stands for the possibility of having objectives standards which are found by looking for the rational order in nature and in man.
Undoubtedly, man?s life was modeled after the peaceable nature around him but the refusal to follow and be submitted to it has left him in a state of chaos and injustice.
However, if man would return to the state of nature as it were, he would be able to live more peaceful and enjoyable life.
Thus, the specific objectives of the study are to;
In Nigeria, natural law has undoubtedly exercised the most profound and enduring influence of upon many aspects of Nigeria laws. However, with special regards to the law of negligence, the impetus it gave through the emergence of duty of care is of great essence. Therefore, the focal point of this work is to really consider the principles of law of negligence as the reminiscence of natural law using Nigeria context.
This research work shall cover the status of natural law, the general principles of natural law and the principles of law of negligence. However, the work will spread to actually appraising the interplay between the two laws in Nigeria.
This concentrates mainly on the description of the methods and procedure, sources and the techniques used in the collection of data for this work.
From the foregoing, in any research work especially with the emergence of modern global world, the veritable sources that can enhance easy access to current information and research materials includes:- the primary sources which are; statutory provisions, judicial authorities e.t.c and the secondary sources which includes: opinions of legal writers, use of textbooks, essays, seminar lectures, articles in newspapers and materials from the internet e,t,c.
In view of the nature of this research work, and in order to achieve the aim of a concrete analytical work, both primary and secondary sources of information shall be employed and the study will be subjected to content analysis.
One of the significant characteristic of jurisprudence is the recognition it gave to the relationship between Natural law and positivism. There are trends of contributions on Natural law positive law (with special consideration of law of negligence ) from various writers, early thinkers, jurists and legal practitioners among which are; Adaramola 3, Elegido 4, T.O Elias 5, Dias 6, A.O Sanni 7, M.I Jegede 8, Tunji Braithwaith9 and also a project work on the relevance of classical Natural law theory to the Nigeria Legal System by Dairo Adebola 2000. Thus, these contributions, views and opinions will be duly highlighted in the course of this study.
According to Thomas Aquinas 10, there is no law unless it be just, thus all human enacted laws are in accord with reason to the extent that they derive their source from
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the Natural law and if a human law is at variance in any particular way with the Natural law, it is no longer law but rather a corruption of law.
Obviously, this view of Thomas revels that, there is and there should be a certain connecting factor between positive law and Natural law of which is being just and in accordance with reason, this tend to establish the principle of practical reasonableness emphasized by law of negligence. An important submission also relevant top this course of study is the view of Finnis adopted by J.M.Elegido11 in his book where he outlined that there is a significance to the requirement of practical reasonableness of which is that, they are the principles one has to apply in order to attain the basic good of succeeding in living according to reason as the underlying theory of the principle of law of negligence.
Furthermore, on the need to align the two laws, A.O Sanni 12, writes that Natural law is not the law of any nation, it is universal, a man if guided by observation and reason is capable of making good and just laws which are in line with Natural law. In addition, by recognizing Natural law as a platform for any positive law, it offers a positive compliment to such a law.
Thus, according to Lord Lloyd of Hamstead Q.C 13, Natural law has afforded a valuable and important weapon by regarding positive law as based on a higher law ordained by God or natural reason and the actual legal system acquires a sanctity it would not otherwise have possessed.
As it is of course no doubt that nature has endowed man with moral sense reason of which propels him to do what is good and avoid evil, this hopefully established a link between Natural law and the law of negligence, also, to a Nigerian writer, Adaramola in his book 14, he submitted that, Natural law has being hinged on the collection of objective moral based on the very nature of the universe and discoverable by human reason and designed to serve as a model to which state ales i.e positive laws must conform. It therefore suffices to say drawing from the contribution of Tunji Braithwaith15 that Natural law is basically a model from which any law through some principles are being picturerised. To him, “ since all things which are subject to divine providence are measured and regulated by the eternal law, it is clear that all things participates to some degree in eternal inclinations to those actions and aims which are proper to them, but of all others, rational creatures are subject to divine providence in a
very special way being themselves made participants in providence in that they control their own actions and the actions of others so they have a certain share on the divine reason itself deriving there from a natural inclination to such actions and the ends are fitting.”
However, one must not fail to mention the contribution of D. A Ijalaye in his write up
“Natural law and the Nigerian Experience” 16, where he writes the concept of reasonableness in the law of torts as a reminiscence of Natural law ideas. Hence, in the case of Bourhill v. Young 17, Lord Russell said;
‘In considering whether a person owes a duty of care to another which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man’.
It is important to note that, natural law principle of reasonableness has been elastic as to cover rescue cases. In this connection, it has long been established that if a person by his own negligence put another person in the to a position of a kind that invites rescue, that negligent person is not liable only to the person that has been imperiled but also to
the person who subsequently come to rescue the victim. This is termed “fair and just principle”.
D.A Ijalaye furthered that, it can be asserted that the latin maxim “sic utere tuo ut alienum non laedas ” is a good example of the principle of reasonableness which is applicable in the Nigerian law of torts, Simply put, the maxim means “use your own rights so that you do not interfere with the rights of another person”. To Dias 18, though a man can to a large extent control his own destiny, he too is decision as are necessary for the attainment of higher and better things is peculiar by virtue of this reason.
From another perspective, Grotious 19, a Dutch Statesman and protagonist in his book which constitutes an indelible mark in the rational nature of a man and the social nature of man society, he deduced natural law as being principles of human reason.
Also, among the rules and principles formulated by him which today constituted the nuclei of the fundamental principles of international law is the reparation for damage
caused by one?s fault and the recognition of certain acts and omissions meriting punishment. Worthy of mention is the declaration of Jac Maritain that 20;
‘I take it for granted that we admit there is a human nature and that human nature is the same for all men. I take it for granted that we also admit that man is a being who is gifted with intelligence who as such, acts with an understanding of what he is doing and therefore with the power to determine for himself the end which he pursues ‘.
Obviously, various contributions that were gathered have been reviewed and the fundamentals of the contributions and opinions are;
1. The requirement of practical reasonableness by natural law enjoins man to do what is
good and avoid evil.
2.As such any human law that contravenes natural law is not a law but a corruption of law
3.The principle of law of negligence is derived from the elementary principles of natural law.
20 Jac Maritain, Man and the State 1951 cf Lloyd d?et al publication
However, contrary to the above opinions, the researcher is of the view that, there are some fundamental issues peculiar to the subject matter that were not considered. Thus, these will be highlighted and will be the contribution of the researcher.
In essence, the natural law principle of practical reasonableness which gave birth to duty of care has from another side of the coin being sidelined by the defence of contributory negligence if successfully raised, this tend to represent a negation of a source of law by the law itself. For instance, in a situation whereby a man had not really acted within the required minimum standard of reason, a defence that the victim had negligently contributed to his own peril may be a valid justification for the defendant?s negligent conduct. In such a situation, the issue which will be considered will be less of whether the negligent man acted or omitted an act reasonably or otherwise, but it will be more of whether the injured victim had negligently contributed to his own injury.
Furthermore, the natural law posited that, nature has endowed unto man a moral sense of reason which propels him to do what is good and avoid evil, however, one of the elementary principles of law of negligence is that, a man cannot be expected to take precautions against dangers which he cannot be reasonably to have been anticipated. One may then be forced to ask the question that, to what extent is a man expected to be
reasonably cautious against dangers ?, even in the face of the possibilities of natural events which may precipitate into situations that may endanger the life of others.
Also, there is a presumption that, man is gifted with intelligence and power to understand, determine and foresees the end which he pursues. However, in my opinion, absurdity may ensue considering a man who does not have such high mental reasoning capacity and intelligence.
As a result of this, he may fail to duely recognize what might be the result of his acts or omissions but there is need for this consideration and clarification as he invariably constitutes member of the society. Therefore, to me, natural law is like a gold in the mine, a few grains of gold hidden in tons of waste.
Generally, words bear multiple meanings, however, against the backdrop of any ambiguity that is likely to set in upon the meaning ascribed to certain terms used in this research work, there is need for working definition of terms.
Except as otherwise necessary, the terms shall be construed within the context they are used with the following meanings;-
This mean the natural law, law of nature, law or legal principles supposed to be discoverable by the light of nature or abstract reasoning or the law that supposes to govern men and people in a state of nature.
According to Black?s Law Dictionary 6th Edition21, law is defined as that which must be obeyed and followed by citizens subject to sanctions or legal consequence. Also, according to Sir Lauterpacht, law is the maximum of socially obtainable morality.
This is a latin maxim meaning an unjust law should not be obeyed and not worthy of being called a law.
4. Morality
This is the belief or ideas about what is right and wrong and about how people should behave.
21 Hersch Lauterpacht 1, 1978 pg. 13
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