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Aspects of Law-1
Aspects of Law-1
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
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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.
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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.
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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.
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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.
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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.
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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.
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civil procedure, criminal procedure, the law of evidence, Sheriff and
Civil Process Law and the law of pleading and jurisdiction.
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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.
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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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