ASPECTS OF LAW

Introduction
To properly appreciate the importance of law, it is necessary to
understand the types and classification of law. This will bring to the
fore the jurisprudential philosophies of the different views of eminent
jurists and scholars and further deepen students’ knowledge.

TYPES OF LAW
1. Eternal Law.
2. Divine Law.
3. Natural Law.
4. Human or Positive Law

1) ETERNAL LAW: The word “eternal” is derived from eternity. It

means something that has always existed – it has never changed and
will always exist. Eternal laws are laws that are constant, everlasting
and universal. A classic example of eternal law is the laws of gravity
and motion which are universal all over the world. Thus, eternal law
is said to be the foundation of all other laws. That is, every rational
law derives more or less from the eternal law. According to Thomas
Aquinas, “The natural law is nothing but a participation of the eternal
law in a rational creature.” However, to him, eternal law comprises
God-given rules governing all creation.
2) DIVINE LAW: Divine law simply means the law of God or Law
from God. A perfect example of divine law is the Ten
Commandments as contained in the Holy Bible and Sharia Law as

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contained in the Holy Qur’an. Divine law is therefore based on the
belief that man is incapable of making a valid and just law because of
his sinful nature. Hence, man must turn to God who is the governing
authority of the universe for perfect law.

NATURAL LAW:
The concept of “natural law” means the “law of nature”. We may
think of nature as a state of affairs in an original position; the
existence of what is unchangeable or universal and indeed an inherent
quality in a thing or person.
Some writers uphold nature as that which for the behaviour of
creatures generally, whether human beings, animals or plants. For
instance, it is the law of nature which makes us sleep, angry, hungry
or laugh. The law of nature can either be in its descriptive sense or in
its prescriptive sense.
The law of nature in its descriptive sense includes the law of planetary
motion, the law of gravitation and the law of relativity which
describes the regularity and uniformity with which things happen
under certain conditions.
The law of nature in the prescriptive sense is a universal precept or
command intended by nature to regulate human behaviour. However,
our general emphasis here is with law in its prescriptive sense.
According to Lord Lloyd, natural law is a body of objective moral
principles based on the nature of the universe and discoverable by
reason. The idea about natural law is based on the notion that it is a
body of moral rules which are discoverable through God. But the
predominant idea today and indeed for a long time is that it is

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discoverable by human reason. At this point, the two main conception
of natural law are:
i. It is an ideal set of principles serving merely as guide to positive
law.
ii. It is a higher law or a body of moral principles to which positive
law must conform to in order to be valid. A natural law theorist,
Marcus Tullius Cicero, upholds that the law is the right reason in
agreement to nature. To him, man can know the principles of natural
law through reasons.
The concept of natural law was aptly described by Marcus Tullius
Cicero as follows:
“True, natural law is right reason in agreement with nature. it is of
universal application, unchanging and everlasting, it summons to duty
by its commands, averts from wrong-doing by its prohibitions, and it
does not lay its commands or prohibition upon good men in vain,
though neither have any effect on the wicked. It is a sin to try to alter
this law, nor is it allowable to attempt to repeal any part of it, and it is
impossible to abolish it entirely. We cannot be freed from its
obligation by Senate or people, and we need not look outside
expounder or interpreter of it. And there will not be different laws at
Rome and at Athens or different laws now or in the future but one
unchangeable law will be valid for all nations for all times, and there
will be one master and one ruler, that is, God over us all for He is the
author of this law, its promulgator, and its enforcing judge.”
Natural law concepts are the foundation of most national laws and all
international laws. For instance, while the laws of democratic states
prescribe natural law concepts of freedom and equality in their laws,
those of autocratic states stem from draconian laws enforced by force.
The provisions of Chapter IV of the 1999 Constitution of the Federal
Republic of Nigeria (as amended) on fundamental human rights, are

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based on the natural law notion that all persons are born free and
equal and as such entitled to certain basic legal protection. These
protections are inalienable and attach to all persons as of right because
of their common humanity. These rights are enforceable in all
Nigerian Courts of competent jurisdiction by the Fundamental Rights
Enforcement Procedure Rules, 2009.

HUMAN OR POSITIVE LAW:

Human or positive law is the opposite of the other types of law that
are naturally made by God (i.e. eternal, divine and natural law).
The legal positivism or human law asserts that law is posited and laid
down by an authority of the society which provides its sole source of
validity. They further assert that law within the context of divine,
eternal and natural law are far different from what law is in the
society. Indeed for legal positivism, nothing is law except the one laid
down by the sovereign State. Thus, human law or positive law is man-
made. It is law as made or declared by man, that is, by parliament, a
delegated authority or other law making bodies to regulate conduct in
a given society or State. An example of human law in our immediate
society includes laws of Nigeria such as the Nigerian Constitution, the
Criminal Code, Companies and Allied Matters Act etc.
The legal positivism or human law further agreed that the three other
types of laws – eternal, divine and natural law represent what ought to
be law (de lege refranda) and not what it is (lex lata) the law
According to Professor HLA Hart, a positivist,
” Law is a command and there is no necessary connection between
law and morals or law as it is (lex lata) and law as it ought to be (de
lege ferenda).

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CLASSIFICATION OF LAW1
Law can be classified in different ways however, the classification of
law among other reasons as essentially to: enable one to know the
relationship between or among different laws, to ensure the simplicity
and understanding of the study of law. These classes of law despite
their distinctive features complement one another.

All laws can therefore be classified into:

1. Public and Private Law.
2. Civil and Criminal Law.
3. International and Municipal or Domestic Law.
4. Common Law and Equity.
5. Substantive and Procedural or Adjectival Law.
6. Written and Unwritten Law
7. Customary law and Islamic law

PUBLIC AND PRIVATE LAW

A public law is a law that applies to the public or person or a country
in general. It is the law that governs the relationship between the State
and the citizens or persons who comprises of the State. Public law is
also concerned with the structure, operations, rights and duties of
government and its relationship with individuals and bodies in the
society. It deals with political issues and conditions such as powers,
1
Ubi societa ubi jus: it means where there is society there must be law.

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rights, duties, capacities and incapacities of institutions, authorities,
public officers and persons. Examples of public law include:
Constitutional Law, Administrative Law, Criminal Law, International
Law and Law of Evidence etc.
Unlike public law, private law is a branch of law which is concerned
with the legal relationships between private individuals, association of
persons and corporate bodies and their rights and duties. A private
law may operate and affect only an individual or a few people that are
concerned. An example of private laws include: Law of Contract,
Law of Torts, Consumer Protection Law, Family Law, Inheritance or
Will Law, Law of Succession, Law of Trust and Commercial Law etc.

CIVIL LAW AND CRIMINAL LAW

The word “civil law” has several meanings. It may mean the law that
is not criminal law or it may mean common law. Civil law can
therefore be defined as the branch of law which defines the rights and
duties of persons to one another and provides a system whereby an
individual who is injured by the wrongful act of another can be
compensated for the damage he has suffered. Thus, civil law is the
whole body of civil and public law except criminal law. Generally, all
laws including criminal law, military law and martial or emergency
law are civil law. Examples of civil law include: Law of Contract,
Land Law, Law of Torts, Administrative Law, Commercial Law and
Company Law etc. most of which deal with civil wrongs. A civil
wrong is an act or omission in respect of which legal proceedings may
be brought by a plaintiff against a defendant for the enforcement of
certain rights.
Criminal law is the law of crimes. A crime is an act or omission
which is prohibited and punishable by the State. A crime is also an
offence that endangers public interest. Criminal law is therefore that

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branch of law that seeks to protect the interest of the public at large by
punishing certain conducts which are believed to be an offence or
harmful to the society. Criminal law is essentially designed for the
purpose of preventing crime or harm towards a person, property,
society or the State as a whole.
Criminal law is usually codified as statute law into the Penal Code
and Criminal Code Law. In Nigeria for instance, criminal law is
completely codified or written in the form of criminal code for the
south and penal code for the North. Indeed, it is constitutional in
Nigeria. In this regard, section 36(12) of the 1999 constitution (as
amended) stipulates thus: Subject as otherwise provided by the
Constitution, a person shall not be convicted of a criminal offence
unless that offence is defined and the penalty therefore is prescribed
in a written law, and in this subsection, a written law refers to an Act
of the National Assembly or a law of a State, any subsidiary
legislation or instrument under the provisions of a law.
In Aoko v Fagbemi,2 the accused was convicted of adultery in a
customary court. On application to a High Court, the conviction was
quashed because it violated the applicant’s constitutional right in as
much as she has not violated any written law.
By implication in Nigeria, no act or omission is stated to be a crime
under a written law in force. However, this requirement of “written
law” does not extend to civil wrongs.

INTERNATIONAL AND MUNICIPAL LAW

International law is an aspect of law which governs relations between
nations or sovereign States or between such nations and international
organisations. It is the body of rules developed from customs,
practices, bi-lateral and multi-lateral agreements which regulates the
2

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conduct of the nations and international organisations and their
relationship with persons whether natural or juristic. In Trendex
Trading Corp v Central Bank of Nigeria, Denning LG defined
international law as the sum of rules or usages which civilized States
have agreed and shall be binding upon them in their dealings with one
another.
International law has a great moral force. It is enforced by the Comity
of Nations and International Organisations through various means
which includes: economic sanctions, severance of relations or ties,
passing of a resolution or vote of censure or condemnation,
Arbitration by the International Court of Justice (IC) or other tribunal
such as War Crimes Tribunal established by the United Nations and
use of forces such as military action or other measures.
Municipal law also means domestic local law. It simply means the
internal law of a particular country. Municipal law in relation to
Nigeria for example means laws made that are applicable in Nigeria
for the Nigerian subjects or residents and for subject matters over
which Nigerian law applies.

Municipal law therefore embodies all the laws of a particular country

which regulates the relationship between individuals and between
individuals and the State. It is the opposite of international law. While
international law is the law of nations, municipal law is the law of a
nation.

COMMON LAW AND EQUITY

The term common law as a division of law means the law developed
by the old common law courts of England namely; the King’s Bench,
the Court of Common Pleas and the Court of Exchequer. Common
law is the law which grew from the practices and customs common to
the people of England and Wales which were applied as judicial
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precedents, that is, successive like decisions of the court through ages.
The common law is the ancient unwritten law of England as distinct
from equity (the principles of fairness and justice) and Statute law
(Statute or legislation). It was later discovered that in its application
common law was rigid, harsh and inflexible; hence the need to
supplement it with equity became necessary.
Equity means fairness, just or natural justice and moral rightness.
Equity may be defined as the principles of moral rightness in action or
attitude upholding what is just, especially fair treatment and due
reward in accordance with the standard or law. As a branch of law,
equity refers to as the rules of fairness and natural justice formulated
and administered by the court of chancery to supplement the
hardships of the common law.
The English Judicature Acts of 1873-1875 required that both the court
of chancery and the common law courts should administer common
law and the principles of equity side by side or together in all courts
in the United Kingdom and in all countries whose legal system is
based on English law. In spite of this joint administration of common
law and the principles of equity the conflict on which of the two
branches of law is superior and should prevail still remains the
burning issue.
Finally, sections 36-44 of the Judicature Acts settled the issues by
providing that whenever there was a conflict between common law
and equity, equity should prevail. This is the position in all English
based legal systems. Thus, the rigidity, harshness and inflexibility of
the common law led to the development of equity. The rules of equity
at this point are a synthesis of the rules of common law which
emerged to qualify, moderate and reform the rigour and harshness of
the common law. For instance, if there is a written agreement between
A and B duly signed by both of them transferring B’s vehicle to A at a
price of N500.00 (five hundred naira only). A can enforce this

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contract as a matter of law against B. But if there is some element of
fraud, mistake or representation, which induced B to transfer the
vehicle, the contract may be vitiated based on the principles of equity.

SUBSTANTIVE LAW AND PROCEDURAL OR ADJECTIVAL

LAW
Substantive law means the actual law or the law itself. It is an aspect
or branch of the law that deals with the definition of offences or civil
wrongs. In other words, substantive law is the body of legal rules
which stipulates what conduct is lawful or unlawful. It defines a code
of conduct and prescribes a penalty for the violation of such code. A
breach or violation of substantive law may result into punishment in
form of fines or imprisonment as it is the case in criminal law or in
form of compensation for damages occasioned as obtainable in civil
law.
Generally, all laws are substantive law except procedural law.
Examples of substantive law includes: law of contract, criminal law,
law of tort, civil law, business law, constitutional law, administrative
law and many others.
Procedural law is the branch of law which deals with the enforcement
of the rules set by a panel. It is the law that governs the steps to be
taken in applying or enforcing the provisions of substantive law.
Procedural law deals with the process of instituting an action in the
court of law. The rules of procedural law therefore specify the
process, procedure and method in which an action is to be initiated in
the court of law. These processes include: the mode of proof, the
manner of prosecution, the manner in which evidence is given at trial,
the examination of witnesses and the manner in which judgment is
given and same is enforced. Other examples of procedural law are:

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civil procedure, criminal procedure, the law of evidence, Sheriff and
Civil Process Law and the law of pleading and jurisdiction.

WRITTEN LAW AND UNWRITTEN LAW

Written law involves the assemblage of norms, code of conduct and
rules and regulations in one or more documents that govern human
conduct and his affairs in the State. In other words, written law is law
which takes its force from express legislative enactment. It is a rule
that has been formally enactment into legislation or statute by the
legislature. Written law is also known as statute, stature law or
legislation.
Examples of written laws includes the following:

 A written constitution, eg 1999 Constitution of the Federal

Republic of Nigeria (as amended).
 Acts of parliament, such as Acts of the National Assembly.
 Laws of the State Houses of Assembly.
 Decrees and Edicts of the military government.
 Treaties made between or among nations.
Unwritten law may be defined as any principle or rule of behaviour
which is not written. In other words, unwritten law is all parts of the
law, observed by the people and administered in the court, which has
not been passed in form of statute law.

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Unwritten law may be partly written or wholly unwritten, but they are
usually laws not enacted even if the principles are reduced into
writing as in case law. However, unwritten law may become written
when for instance, it is enacted into law in from of statute or statute
law. Examples of unwritten law include; the common law of England,
customary law in Nigeria and judicial precedents or case law
(principles and rule of law as established by the courts in judicial
proceeding)

Customary/Islamic Law
Customary laws are body of customs which from long use have
acquired the force of law amongst the people. It is the indigenous
laws of various people or ethnic group of Nigeria which has been
accepted as binding on the people before the introduction of foreign
laws into Nigeria.( English law, statue law)
The Evidence Act,3 defines custom as that body of rules, which in a
particular district, from long usage obtained the force of law. For
custom to be accepted as valid and obligatory in any community in
Nigeria, such custom must pass the validity test which is a legal
requirement that such custom must not be repugnant to:

 Natural Justice
 Equity
 Good Conscience
 Public Policy nor
 Incompatible with any law for the time being in force.
When a customary law satisfies the legality test, such custom is
enforced by a court of law as customary law among members of the
community.

3
Evidence Act 2004, Section 2

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Islamic law is an embodiment of Islamic thought, a system of law in
which legal rules, ethics, religion, rituals and politics are closely
interwoven. It is sacred law, an all-embracing body of religious
duties.
It is the totality of Allah’s commands that regulate the life of every
Muslim in all its aspects. Its analogical deductions cover myriads of
situation that arise in the normal course of human life.
The sources of Islamic law:
i. The Holy Quran ii. The Sunnah
(a) Secondary Sources: namely: (i) Al-Ijma
(ii) Al Ijtihad
(iii) Istihsan Istislah
(iv) Istishap
(v) Sadd-al Dharat
The Holy Qu’ran is the first primary source. The Sunnah is usually
regarded as the second source – the practice of Prophet Muhammed.
Al Ijma is the consensus idea of Ulama and Qiyas functioning as an
integrated structure whose adherents agree on the norms, rules, and
values which are to be uniformly respected and observed. Ultimately,
Allah the Sovereign, is the law Giver.

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