Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

Features and Functions of Law

Nnamdi Ebo 2
Lawyer Zone  | By Nnamdi Ebo | Features & Functions of Law

FEATURES OF LAW.

1. Law is a body of rules or standards of conduct promulgated or established by some authority. Law is also a body of rules of conduct inherent in human nature and essential to or binding upon society e.g. those standards of conduct adopted by the National Nigerian Assembly or those basic principles of justice that constitute due process of law.

All laws cannot be found in a book or document. A layman might think that the laws of Nigeria are contained in one single document. Laws are contained in many forms, e.g.  the offence of murder and the penalty thereof is not expressly written in the 1999 Constitution, rather it is enshrined in section 316 of Criminal Code. In common law countries, Law can be found in the following forms:

                          – 1999 constitution of Nigeria (statute law)

                            Statute book

                          – Local statutes

                          – Case law (common law, civil law, precedents)

                          – Customary law

                          – Islamic law/Shariah law (the Koran)

                          – Mosaic law (law of Moses: the Bible)

                          – Law merchant (commercial practices & customs)

                          – Canon Law (e.g. codified laws of the Roman Catholic Church)

                          – Anti-drug law (U.S.)

                          – Anti-racketeering law (U.S.)

                          – International law (law of nations)

                          – Anti-trust law (U.S.)

                          – Riot law (former English law)

                          – Criminal code/Penal code

                          – Administrative law

                          – Martial law

                          – Securities law (U.S.)

                          – Tax law

                          – Contract law

                          – Matrimonial law

                          – Patent law (U.S.)

                          – Law of the Hague (body of international law of war)

2. Law is the regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure.

3. Law is man-made – not God-given or laws of nature as it were. Laws are rules (most times, rules of acceptance) adopted by the society to govern itself and ensure compliance among its members. These laws are electoral laws, economic, fiscal/financial and budgetary laws, municipal laws, ordinances, bylaws, laws of taxation, environmental laws, laws governing the educational sector, banking sector, maritime/shipping sector, communication, broadcasting, hospitality sector etc.

4. Law has an element or instrument of coercion. Law has the instruments of compelling by force of authority. This is the act of enforcing; insuring observance of or obedience to lawful rules, regulations, instructions and authority. E.g. the Nigerian Police Force. (NPF)

5. Law has the power to exercise social control. This control is exerted (actively or passively) through groups exemplified by the police or through societal action exemplified by the apparatuses of the state like the SSS, NAFDAC, EFCC, FRSC, VIO, etc.

6. Law is normative in character, which is a typical attribute inherent in its nature and state. This normative character pertains to giving directives or rules which are prescriptive and concerned with rules for correct behavior and conduct. These rules guide citizens in what they may, ought or ought not to do and can’t do. Law is a norm, which tells us what to do and what to refrain fromdoing in order to achieve a particular objective. For example, therules of criminal law, which forbids stealing, and the killing ofanother under certain circumstances are to guarantee security oflives and properties.

7. Law is dynamic in nature, not static and capable of change and renewal. In this wise, the content of the law of any society undergoes changes as the dynamic elements of the society undergoes metamorphosis in the political, social and economic direction. It might be pertinent to mention here that the content of the laws of Nigeria has undergone structural changes through time – from pre-colonial to colonial, from colonial to post colonial/independence in 1960. Since independence and up to 1963 (when she became a republic) and through the various coup d’etat and putsch with there military hegemony, the country has had new insertions, extractions and modifications in her constitutions. These constitutional developments were occasioned by social factors, political developments, economic sophistication and cultural diversity.

Nigeria moved from practicing the parliamentary system with all its British political trappings of law (in the 60s) to the presidential system with all the political and legal trappings of the United States of America (in the 70s to date, in between coups). Even statutory, administrative and judicial laws embedded in Acts, decisions/proclamations, ordinances, decrees, laws, edicts and bylaws have all been in situations of constant flux. The newness and practice of the presidential system of Government has conditioned the legal method employed in the legal system and has generated enthusiasm and flux of both the bar and the bench in Nigeria. Law is meant to regulate the behavior of man in the society, the content of the law of each society usually changes as the social, political and economic world in which he lives changes.

8. Law is a ‘Golconda’ 52– a source of wellbeing and great wealth to the people. This wealth refers to the richness of the mind, soul and body, which underlines human value and defines the essence of human existence in the first place. Imagine a situation without this wealth (if not safeguarded), life will be brutish and short indeed. Put more succinctly, this Golconda refers to the Nigerian constitution (i.e. source of law) with the ‘guaranteed’ rights and power to the people. These rights are the human rights and/or the fundamental rights – as enunciated and enshrined in the 1999 constitution of the Federal Republic of Nigeria. These fundamental rights are the following:

          right to life

          right to dignity of human person

          right to personal liberty

          right to fair hearing

          right to private and family life

          right to freedom of thought, conscience and religion

          right to freedom of expression and the press

          right to freedom from discrimination

          right to acquire and own immovable property anywhere in Nigeria

9. Law has territorial limitation. It is restricted to the geographical area under a particular jurisdiction; the jurisdictional limits of a court or tribunal as prescribed by either statute, code, clause or convention. In the U.S., the courts are in districts and circuits while in Nigeria, the courts are in divisions with delimited rights of adjudication and vertical or horizontal power with regards to adherence to precedence or case law (i.e. the Criminal Code Act53 and the Criminal Procedure Act54 apply in the Southern part of Nigeria. The Penal Code (Northern States) Federation Provisions Act55 and the Criminal Procedure (Northern States) Act56 apply in the North.) There is an established standard of acceptance – epitomized by this classic dictum or principle of international law that: “no country ever takes notice of the revenue laws of another country” – see Holman v. Johnson57

______________________________

52. igalaLaw (2010)

53. Cap C38 Cap W3 LFN 2004

54. Cap C41 Cap W3 LFN 2004

55. Cap W3 LFN 2004

56. Cap C42 Cap W3 LFN 2004

57. (1775) 1 Cowp. 341

FUNCTIONS OF LAW

1. Settlement of Disputes

Law has an inbuilt mechanism for the conclusive resolution of a matter and disposition of it. A dispute is a controversy; a demand made or right asserted which is refused by another party. A dispute is also a conflict, especially one that has given rise to a particular lawsuit. This disputes or controversies come in various forms, such as land disputes, chieftaincy disputes, family disputes, boardroom disputes, disputes arising from vehicular accidents etc. There are legal methods embedded in the legal system through which law performs this function. These organs or institutions are as follows:

  • Law courts
  • Administrative tribunals
  • Judicial tribunals
  • Courts martial
  • Military tribunals (used by military dictatorships)
  • Alternative Dispute Resolution (ADR) mechanisms
  • Informal courts (i.e. village disputes settled by Chiefs, elders etc.)

2. Provision of Remedies

Remedies are legal methods used by a court to redress an injury or protect a right e.g., the court may order the defendant to pay money to the injured party. These remedies may be ‘legal’ or ‘equitable’ The Nigerian National Assembly may pass a law that creates or expands the methods and legal measures that private parties can use to obtain relief or compensation for damages. Again, a remedy is the means of enforcing a right or preventing or redressing a wrong. There are various types of remedies such as:

  • Adequate remedy: a legal remedy e.g., an award of damages sufficient to prevent equitable relief to petitioner.
  • Administrative remedy: a non-judicial remedy provided by an administrative agency.
  • Concurrent remedy: one of two or more legal or equitable actions available to redress a wrong.
  • Cumulative remedy: a remedy available to a party in addition to another remedy that still remains in force.
  • Extraordinary remedy: a remedy (e.g., a writ of mandamus or habeas corpus) not available to a party unless necessary to preserve a right that cannot be protected by a standard remedy.

3. Recognition and Assignment

The law functions to identify and recognize particular and relevant organs, institutions and persons and vests appropriate authority and power to enable the exercise of relevant and precise powers on behalf of the institutions etc. Some of these relevant organs etc. are:

Recognition:

The law functions to recognize specific organs, institutions and persons as follows:

      The National Assembly…..(see the 1999 Constitution Part II, s. 4)

      The President………………….………… (supra above s. 5.)

      The courts………………………………… (supra above s. 6)

      The administrative and judicial tribunals

      The university system

      Government commissions and agencies

      Public utilities

      Public corporations

      Private corporations

      Civil or public servants

      Private persons

The law also functions to assign to the relevant organs, institutions and persons, the following vested authority and tools:

Assignment:

  • Enactment: this is the passing of a law by the National Assembly
  • Veto: a vote that blocks a decision in the National Assembly
  • Presidential veto
  • The right to override president’s veto
  • Citizens’ right to vote and be voted for
  • Fiat: a legally binding command or decision
  • Policy decisions
  • Power of appointment, discipline, promotion etc.
  • Planning
  • Supervision
  • Implementation of policy
  • Power of arrest (Police, EFCC, SSS etc.)
  • Power to confine suspects to custody (pending trial)
  • Power of arraignment (a legal document calling a person to court to answer an indictment)
  • Power of a judge to preside and adjudicate
  • A judge’s power to issue writs

4. Distinguish & Separate

Lawyer zoneLaw functions to distinguish between its distinctive features, attributes, or traits and proceeds to separate them accordingly. These features are its rules, norms, directive and prescriptive elements, territorial limitations and dynamism. This function serves to differentiate different types and forms of powers e.g., the fundamental obligations of the Government to protect and defend its citizens and the reciprocal duties of citizens e.g., to pay tax etc. Law distinguishes and separates powers – allocates them into compartments e.g., the separation of powers of Government into the executive, legislative and judicial branches with separate types and forms of power to avoid dictatorship and abuse of power.

Law also provides for checks and balances which is occasioned by its ability to distinguish and separate Governmental power. These checks and balances can be distinguished one from the other – from the power of the National Assembly to pass a bill into law to the power of the President to veto the same bill – and the power of the National Assembly to override the President’s veto. Or the function of the law to distinguish between jurisdictions allocated to various courts and the right of persons to appeal unfavorable decisions of judges. Thus there is power separation in the legal system with distinguishable legal methods of litigation from the customary/Shariah courts to the High Courts and all the way to the Supreme Court in Abuja – that’s a fine line indeed.

5. Social Control

Social control refers generally to societal and political mechanisms or processes that regulate individual and group behavior, leading to conformity and compliance to the rules of a given society, state, or social group. As will be seen in the tools of social control in chapter 7, section 10, page 300, Law functions to provide rules and regulations for the administration of social control mechanisms. Penal system or criminal justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, and sanctioning those who violate laws with criminal penalties and rehabilitation efforts.

Law functions to provide criminal justice within the penal system – in the society. The rights of the accused are rights that protect those accused of crime. In Nigeria, criminal justice policy has been guided by the policies and guidelines inherited from English criminal justice policy as dictated by the colonial judicial system and subsequent local developments, [however in Nigeria, the primary source of all criminal law is Nigerian legislative enactment58]. The challenge of crime in a free society like Nigeria is awesome considering the inadequacies of the justice system.

Law functions to define and sustain the criminal justice system as the means for society to enforce the standards of conduct necessary to protect individuals and the community. The criminal justice system is designed to reduce crime by bringing more offences to justice, and to raise public confidence that the system is fair and will deliver for the law-abiding citizen. Through the instrumentality of law, the criminal justice system attempts to balance the goals of crime control and prevention, and justice (equity, fairness, protection of individual rights). The main goal of the criminal justice system is to reduce crime and increase the security of the people.

__________________________________

58. Supra, Criminal Law in Nigeria, p. 49

Law Enforcement

Law creates the instruments for maintenance of law and order – such as the police – e.g. the Nigerian Police Force NPF. The Nigerian Police is a law enforcement agency of the federal government. Nigeria does not operate a decentralized police force or state police as obtains in the U.S. – where they have the FBI, state police e.g. New York Police Department NYPD, the sheriff’s department, city police etc. The first modern police force is commonly said to be the London Metropolitan Police, established in 1829 by Sir Robert Peel, which promoted the preventive role of police as a deterrent to urban crime and disorder.

In the United States, police departments were first established in Boston in 1838 and New York City in 1844. Early on, police were not respected by the community, as corruption was rampant. Despite ongoing reforms, the Nigerian police force is still enmeshed in a super-structured configuration like the military. It is also led by highly autocratic officer-leadership with monolithic rigidity and disposition. Presently, there remains a lack of respect between the police and the community at large (no love lost). Following this bad reputation, the police placed more emphasis on police-community relations, introduced reforms such as increased diversity in hiring – which was derided by former president Chief Olusegun Obasanjo as an organization that recruits undesirables, unsuitable persons and local criminal elements and layabouts.

Finally they fine-tuned the police-community relations and adopted community policing strategies. The police have since introduced problem-oriented policing, intelligence-led policing, and other information-led policing strategies to maintain law and order in Nigeria. They have been assisted in this by various state governments desirous to curb crime in their stases (e.g. the south east states of Anambra, Abia etc.) They are ultimately governed by the Police Act 1990 vol. XX, no. 359 of the Laws of the Federation of Nigeria 2000.

Corrections

Law functions to provide a correctional system for the society at large. It does this through instruments like the statute provisions, the criminal/penal code, enactments etc. Bad members of the community are tried in courts – where the  guilty, are sentenced and put away to centers e.g. the correctional centers and jails in the U.S., minimum or maximum prisons in Nigeria e.g. ‘Kirikiri maximum prison’ etc (Prisons Act vol. XXI no. 366; in force as of the 31st January, 1990 in Nigeria). When the law has taken its course, offenders are then turned over to the correctional authorities, from the court system after the accused has been found guilty. Like all other aspects of criminal justice, the administration of punishment has taken many different forms throughout history. Early on, when civilizations lacked the resources necessary to construct and maintain prisons, exile, banishment and execution were the primary forms of punishment.

Historically, shame punishments and exile have also been used as forms of censure. The most publicly visible form of punishment in the modern era is the prison. Prisons may serve as detention centers for prisoners after trial. For containment of the accused, jails are used. Early prisons in the U.S. and the UK were used primarily to sequester criminals and little thought was given to living conditions within their walls. In the U.S., the Quaker movement is commonly credited with establishing the idea that prisons should be used to reform criminals. This can also be seen as a critical moment in the debate regarding the purpose of punishment.

There are numerous other forms of punishment which are commonly used in conjunction with or in place of prison terms. Monetary fines are one of the oldest forms of punishment still used today. These fines may be paid to the state or to the victims as a form of reparation. Probation and house arrest are also sanctions which seek to limit a person’s mobility and his or her opportunities to commit crimes without actually placing them in a prison setting. Furthermore, many jurisdictions may require some form of public or community service as a form of reparations for lesser offenses. Execution or capital punishment is still used around the world. Its use is one of the most heavily debated aspects of the criminal justice system. Some societies are willing to use executions as a form of political control, or for relatively minor misdeeds – like in some African states like Idi Amin’s Uganda, Mobutu’s Zaire etc. Other societies reserve execution for only the most sinister and brutal offenses. Others still have outlawed the practice entirely, believing the use of execution to be excessively cruel or hypocritical.

The duties of Law

Law, whether Divine, natural or human is a necessity for right life or good life in any country. The functions or relevance of law to a society such as Nigeria are numerous and may not be completely enumerated. Find below, the functions of law in any society:

(i) It is a code of conduct.  A rule of action that ensures persons, bodies and societies live and function in an orderly fashion and enjoy peaceful lives without let or hindrance.

(ii) It determines the structure, model and the order for all aspects of life and society, whether it is the structure of government, health, education etc.

(iii) It is a means of resolving and settling disputes peacefully. It is a means for administration of justice and maintenance through the establishment of a court system.

(iv) It is a guarantee of rights, fundamental rights (in the 1999 constitution), freedoms, obligations and duties of citizens. It is a necessary framework to ensure a free and orderly society.

(v) It ensures order and peace in society; otherwise life would be brutish, nasty and short. Law is an instrument of civilization, but lawlessness is opposite and anti-civilization.

(vi) It is an instrument of political, economic and social change and stability. It can be used to restructure any aspect or sector of society, to improve, re-organize, upgrade, preserve, project, establish, revive, save pardon and so forth. It provides the environment that enables individuals and society to live operate and to realize their ambitions and to reach their fullest possible potentials.

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Legal Method . Book CoverCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012

Buy the book, Legal Method Click  Bookshop

Nnamdi Ebo | [email protected]  © 2014 Nnamdi Ebo . All Rights Reserved

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