Home introduction to law THE NATURE, SOURCES AND CLASSIFICATION OF LAW

THE NATURE, SOURCES AND CLASSIFICATION OF LAW

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INTRODUCTION

A simple everyday activity or undertaking can involve numerous areas of laws. Altogether, they regulate, control, enforce, punish or bring about reparation. In this unit, we shall be looking into the sources of these laws.

Authoritative Sources

There are two main sources from which laws derive their authority: Judge made law or common law; or National and State Assemblies (Parliament)

A broad overview of the development of both the Judiciary and National/State Assembly as sources of law is necessary in order to understand the English Legal System, which formed the basis for our own Nigerian legal system.

Advantages and Disadvantages of Statutory Law

In their discussion of the Legislature as a source of law, Vermeesch and Lindgren (1992: 24) set out the advantages and disadvantages of legislation as a lawmaking process as follows:

  1. Advantages. The Act of the National Assembly may reflect change in community standards. The argument is that the National Assembly is more responsive to electoral concerns than the judiciary, judges being appointed, effectively, until a ripe old age. The statute may be enacted after thorough inquiry into the need for the proposed law by bodies such as law reform commissions or specialist House of Representative or Senate committees. This contrasts with the decision of the judge which is made on the basis of evidence selected by the parties to strengthen their particular arguments. The legislation may be enacted to deal with a perceived deficiency in the law. Judicial lawmaking depends on the vagaries of litigation. Legislation may be, and usually is, enacted prospectively. Litigation, at least where the parties are concerned, is a retrospective form of lawmaking.
  2.  Disadvantages. The major criticism of statutory law is the difficulty experienced in having statutes enacted. The legislative agenda is very crowded, and becomes more crowded each year, and most law reform proposals are not given a high priority. This is to be contrasted with the relatively free access that disputants have to the courts. The second major criticism is the fact that legislation is often broad brush in its approach and, even when it is not, often requires judicial clarification. This is to be contrasted with the judicial decision which is directed to the particular issue brought before a court. So far, we have looked at sources of law in a broad sense, directing our attention to the authority which is responsible for particular laws. Another way to look at sources of law is from a narrower viewpoint and to look to the records of where the law is to be found. These records are the law reports and the statutes and regulations.

Law Reports

The most important Nigerian law reports are the authorized Law Reports which are cited by reference to the court in which the decision is made etc. In addition there are the All Nigerian Law Reports cited by the abbreviation “All NLR”. In Nigeria the most important reports from our viewpoint are the Nigerian Law Report, Nigerian Weekly Law Reports, Law Breeds, Weekly Report of Nigeria etc.

Statutes

The most important statutes are the Federal statutes and the state laws for each state and the received English Laws. Naturally, enough we focus on the statutes in this course but it should be realized that in many cases the states have equivalent statutory laws. There are for example more or less uniform laws in each state with little variation between the 19 Northern and 17 Southern States. Many of these statutes are based on an English model and have retained their common features for many years, though in declining proportions.
Native/Customary Law
As noted above, the presence of indigenous people and their laws were ignored when Lagos was first ceded. In fact, that more or less remained the position until nearly 100 or so years of our colonial history. However, the question of the proper place of native/customary law is topical. In this course we will study certain aspects of the customary law in some detail, partly because it raises these fundamental issues, which touch upon our modern legal system and also because it provides useful guide as to what law ought to be observed or enforced.

The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the groupings of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws are not repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld…
In the area of criminal law, one author observed that some customary laws and customs may exist as part of the law of the nation, clearly not of general application, but as much entitled to recognition within their sphere of operation as, for example, the by-laws or regulations of statutory authorities or Local Government Councils are recognized within the area and scope of their powers.

What Law Applies?

The summary that came from the last activity refers more particularly to statute law but at all times English common law was (and still is) being received into Nigeria. It is not binding on our courts but it is often most persuasive particularly if there is no relevant Nigerian case on the subject in question.
In general terms if we were to look to the sources of law for an answer to a legal problem the priority would be:any relevant Statute of the National Assembly any relevant State law english Statutes of general applicable to the colonies before 1900 any Nigerian common law pronouncement; the English common law.

While the above order of priority is strictly correct; for practical purposes it is so unusual to find an English Statute still applying in a State that lawyers tend to go immediately to the common law after considering any relevant State Statute.
International Law

(a)Contrast with Municipal Law

As the term suggests, international law is concerned with the rules of law, which govern the relations between countries. On the other hand municipal law relates to the body of law, which governs the internal affairs of a country.

b)Notes:

 The above branches are not to be seen as exhaustive but merely Indicative Chisholm and Netheim describe the basic differences between international law and municipal law as:

It is easy to think of international law as relating to war and peace, control of international aggression, and the peace-keeping efforts of the United Nations. These are certainly matters which may involve international law, and are perhaps the most important areas of that law, but they are also areas where international law has most difficulty being effective. For the international legal system, dealing in general with legal relations between countries, does not ordinarily have the same extent of control over those countries as systems of national law usually have over people in the particular country. The problem can be helpfully explained by saying that international law does not have three things that national legal systems have: a legislature (to make laws), a police force (to enforce them), and courts (to apply the law to disputes). This is, of course, an over-simplification, but it is worth considering each aspect. International Law has no legislature: there is no body which possesses recognized and effective authority to pass legislation which bind countries. The United Nations General Assembly has considerable influence and does pass resolutions about the rights and duties of countries, but its powers in relation to countries are very much weaker than the powers of a national parliament over its citizens. Only the Security Council has power to pass binding resolutions, and only in furtherance of its powers to deal with threats to the peace, breaches of the peace, and aggression. Countries incur obligations in international law only if they choose to, usually by becoming party to a treaty with one or more other countries.

Again, there is nothing in the international legal system really similar to a police force or an army. It is true that the United Nations has some peace-keeping forces, but these are very small in comparison with the forces available to particular countries. They have to be contributed by member nations for particular operations, and in general can operate effectively only with the consent of the countries where they are deployed. Sometimes they can perform such tasks as policing political or national boundaries. Occasionally, substantial armed forces are assembled and deployed for particular operations. The best known recent example is probably the 1991 deployment of armed forces against Iraq following its invasion of Kuwait. In such exercises the involvement of particular countries through the supply of forces can be so substantial that there can be arguments about whether the force is properly regarded as a United Nations operation or is really an operation of one or more countries with a degree of support from the United Nations. The United Nations efforts are not always successful, and are sometimes criticized, as in the case of Bosnia. Further, in some situations, including some of the most tragic (such as those in Africa in the mid-1990s), the difficulties of the situation, and sometimes the perception by member countries that their own interests do not justify a major investment of funds and personnel, lead to a result that the United Nations is virtually helpless to assist. This is particularly so where the area is so dangerous and unstable that humanitarian relief cannot be provided to the people who need it.

Finally, there are no courts of the kind that exist in national legal systems. There are bodies something like ordinary courts, notably the International Court of Justice (the World Court). However, this court, like other international courts and tribunals, can in general decide cases only with the consent of the countries concerned; it is therefore quite different from national courts, in which people can be sued or prosecuted whether they like it or not. In some cases, as a result of regional treaties (as in Europe), a number of countries can create a legal arrangement in which courts and other bodies can make orders which will be respected and enforced in the member countries. (In recent times the UN Security Council has established international tribunals to deal with international offences committed in the former Yugoslavia and in Rwanda – the first such machinery since the Nuremberg and Tokyo tribunals after the Second World War).

In all three areas, therefore, legislature, police and courts, the international legal system is much less well-equipped than national legal systems. Not surprisingly, the United Nations and the international legal system generally are sometimes criticized as being ineffective, or not being ‘law’ at all. It is pointed out, quite rightly, that international law did not prevent the Vietnam War or the Middle East, Afghanian, Iraqis or Nigeria Civil wars.


(Source: Chisholm and Netteim 1997, p 18)

Impact of International Law on Municipal Law

Chisholm and Netteim made reference to the importance of treaties as a source of international law. We have a federal system of government, as you are aware, and power is divided between the Federal and State Governments. The powers of the Federal government are restricted by the Federal Constitution. In recent times the power available to the Federal has increased substantially by the State choosing to implement in Nigeria international conventions to which Nigeria is a party. Those international conventions may deal with matters which normally would fall within the control of state governments but by the Federal Government, using its external affairs power in the Constitution, it can legislate against or for the particular conduct. Furthermore, the Federal Government has relied upon treaties concerning World Heritage Listing to protect the environment in Nigeria. This would normally be a state government matter. The issue of Federal-State Government power is explored more fully later.

International law impacts on our domestic law in other ways as well. In the first place customary international law which is law derived from the close adherence by countries to establish customs is technically part of our common law. Since the customs are usually of an international character (such as rules governing the collision of ships) their influence on municipal law is not great.

In addition, in developing the common law judges have been prepared to take into account trends in international law and the domestic law of other countries. For example in the Australia case 2 Mabo v Queensland Brennan J stated that:
Although the manner in which a sovereign state might acquire new territory is a matter for international law, the common law has had to march in step with international law in order to provide the body of law to apply in a territory acquired by the Crown.
(Source: Brennan)

In the particular circumstances of that case the majority of the High Court was prepared to vary the common law to ensure that it did not discriminate against a particular race. This change brought it into line with international law on land rights both in the way other countries such as Canada and New Zealand dealt with this issue but also in keeping with the judgment of the International Court of Justice in the Western Sahara case [1975] ICJR.1. That court severely criticized the terra nullius doctrine.

Municipal Law

Before examining some aspects of our municipal law it is useful to take a wider perspective and see how our law fits alongside the legal systems of other countries. While this enquiry has an international flavour it is treated under the heading municipal law because it is concerned with the internal laws of different countries.

CONCLUSION

You have learnt about the sources of law. Most Nigerian laws now derive from statute laws and you have treated the advantages and disadvantages of statutory law as well as the differences between International and municipal law.

SUMMARY

The laws in Nigeria can be found in the Acts of the National Assembly, the laws of each state, and the by-law of the local government council. Each derives from the common law, equality and English statutes of general application. Law Reports are growing sources of law in Nigeria. Customary law derives from the customs and traditions of the people. Islamic law is customary law but it is written. Treaties to which Nigeria is a signatory is another source of law. Differences lie between municipal laws, International law especially in terms of legislation, enforcement and adjudication.

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