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.

 

OBJECTIVES OF LAW

Nnamdi Ebo 2 Lawyer Zone  | By Nnamdi Ebo | Objectives of Law.

The objective of law refers to the aim, object and target of law. What does the law seek to achieve? What goal or end does the law intend to be attained? (and which is believed to be attainable?) This chapter will treat thirteen (13) objectives of law, below:

1. Rule of Law

Rule of law can be defined as a state of order in which events conform to the law. Put more succinctly, it is an established customary state (especially of society). In this wise, law seeks to assert itself over and above everything and all the while tries to brook no opposition to its preeminent position in society. Law aims to apply itself in all spheres of human endeavor – at home, at work, in school, in politics, in war – it even seeks to define and control sexuality. Are all these together – the main objective of law? However, the operators have always tried to make it fair in its application and give it a human face. In England, they came up with equity which has endured and sustained it both in England and Nigeria. The distinction between “law” and “equity” is an accident of history. The law courts or “courts of law” were the courts in England that enforced the king’s laws in medieval times. Here the King’s Judges, educated in law, administered the universal law of the realm.59This body of law evolved on the basis of previously set precedent into what is recognised as the Common law of England. The rule of law has necessitated the doctrine that every person is subject to the ordinary law within the jurisdiction – all persons within Nigeria are within the Nigerian rule of law. All these which constitute aspects of the rule of law, are the main objective of law.

2. Law and Justice

Rule of justice in Nigeria is a state where the law has arrogated itself with the power to define principles affecting the freedom of man. Law has given out a jurisprudential principle that determines the sphere of individual liberty in the pursuit of individual welfare, so as to confine that liberty within limits that are consistent with the general welfare of Nigerian citizens. Law does not operate in a vacuum and abhors delay in its application. Rule of justice refers to the administration of law; the act of determining rights and assigning rewards or punishments; this comes with the dictum: “justice deferred is justice denied” (see Awolowo v. Federal Ministry of Internal Affairs ((1962) L.L.R. 177). The objective of law here, is to make sure that ‘your freedom and liberty ends where another persons own begins’. Freedom is not absolute and the law seeks as its goal or aim, to work for the general welfare of all Nigerian citizens. An important area of law and justice as one of the objectives of law is in the administration of justice itself and how to provide justice services (in the developing world e.g. Africa) for those at the lower rungs of the society.

59. Supra Equity, p. 64

      Some of these members of society face arbitrary power from above the rungs of society. How does the law employ itself as a tool of justice in societies with pronounced inequality of political, financial and legal power? The issue at stake here is ‘human rights’ or ‘fundamental rights’ as enshrined in chapter IV of the 1999 Nigerian Constitution. This is where law and justice merge with law and society as objectives of law for this purpose. Some NGOs are making justice investments60 in this regard – justice investment in legal aid, assistance and exposure of arbitrary power. Law and justice investments in the developing world can be roughly divided into two categories. One set of investments focuses on state institutions: on improving the effectiveness and fairness of the courts, the legislature, the police, and the health and education systems, among others. A second set of investments, sometimes termed legal empowerment, focuses on directly assisting ordinary people, especially the poor, who face justice problems. (Refer to law and society below)

3. Law and Order

Law and order can be defined as a situation in which people obey the law and behave in a peaceful way. It is one of the foremost responsibilities of the Government of Nigeria – to maintain law and order in the country. The 1999 constitution is very clear in chapter II s14 (b) where it states inter alia:

“the security and welfare of the people

                                shall be the primary purpose of government…”

One of the main objectives of law is to provide the means and instruments through which law and order can prevail in the society. Thus, government uses those instruments to maintain law and order. The law makes provision for the government to protect lives and property within its territory, ward off external aggression and maintain its sovereignty. It is obvious that without peace and tranquility, without law enforcement, without the effective administration of justice, without the rule of law, there will be anarchy and lawlessness. Life itself will be worthless, brutish and short.

4. Law and society

Max Weber defined the sociology of law as the external study of the empirical   characteristics of law’s role in society. Law and society in the U.S. was propounded by the work of an American Sociologist cum social scientist – Talcott Parsons (1902- 1979). The leading sociological theorist in the postwar era was Parsons and he emphasized the role of law as an integrative mechanism of social control. Labor law is the study of a tripartite industrial relationship between worker, employer and trade union. This involves collective bargaining regulation, and the right to strike. Individual employment law refers to workplace rights, such as job security, health and safety or a minimum wage.

    “By speaking of law and society we may forget that law is itself a part of society”  

                                                                                                    – Lon L. Fuller (1968: 57)

60. Vivek Maru, Timap for Justice; “Between Law and Society” edited by Robert O. Varenik & David Berry, Open Society Institute, New York (2006).

      Human rights, civil rights and human rights law are important fields that are supposed to guarantee everyone basic freedoms and entitlements. These are laid down in codes such as the Universal Declaration of Human Rights, the European Convention on Human Rights (which founded the European Court of Human Rights) and the U.S. Bill of Rights. The Treaty of Lisbon makes the Charter of Fundamental Rights of the European Union legally binding in all member states except Charter of Fundamental Rights of the European Union. Civil procedure and criminal procedure concern the rules that courts must follow as a trial and appeals proceed. Both concern a citizen’s right to a fair trial or hearing. Evidence law involves which materials are admissible in courts for a case to be built. Immigration law and nationality law concern the rights of foreigners to live and work in a nation-state that is not their own and to acquire or lose citizenship. Both also involve the right of asylum and the problem of stateless individuals. Social security law (in the U.S.) refers to the rights people have to social insurance, such as jobseekers’ allowances or housing benefits. Family law covers marriage and divorce proceedings, the rights of children and rights to property and money in the event of separation. (Refer to law and justice above)

5. Law and sovereignty

Until the end of the Cold War, the concept of security generally referred to nation-states maintaining their sovereignty and protecting their national interests from invasion or threats by foreign powers. For nearly half a century, from 1945 until the collapse of the Soviet Union in 1991, the nation of Lenin and Stalin and the United States struggled for global supremacy through military build-ups and a nuclear arms race. Following the collapse, the decades-long tensions between the United States and now Russia gradually receded, giving way to additional notions of security based upon internal struggles, including civil war.  From the Kosovo Conflict in the late 1990’s to the terrorist attacks in the United States on September 11, 2001 and Spain on March 11, 2004, what it means to be “secure” is now more nebulous than ever.61 Equally, there are times when the actual power of a state is so great that, although its sovereign right to use this power has not been formally acknowledged by others, it is tacitly recognized. These are extreme cases, however. Normally sovereignty means the possession of a right and power, and disputes about sovereignty are disputes about right and power. Sovereignty manifests itself in different forms, and this largely accounts for the varying definitions that are given of it. Seen from one angle, the right and power of sovereignty is exercised over territory, and is akin to the right and power of possession or ownership of a potion of the Earth’s surface. This ownership of territory includes in turn a right and power over all that exists, whether static or mobile, human or non-human, within the territory concerned, and extends to so-called territorial waters and airspace. Great Britain’s claim to sovereignty over the Falkland Islands (Islas Malvinas) – during the Falkland’s war – is a claim of ownership of this kind. Argentina denied Great Britain’s right, claiming a prior right of her own. Argentina attempted to give her right substance by challenging Great Britain’s power in the Falklands War, but without success. Lady Margaret Thatcher (the Iron Lady) met Argentina’s bluff with bluster.

61. Global Governance Watch (www.globalgovernancewatch.org/law), a joint program of the American Enterprise Institute & The Federalist Society [2011].

With U.S. military assistance (aerial surveillance of Argentine positions by U.S. Air force), Great Britain defeated Argentina in a bloody war. Sovereignty is the right and power (at law) to make the ultimate or final decision about the terms of existence of a whole territorially-based body politic. It denotes a central core of right and power which may be called the right and power of state’s self-determination, that is, a right and power to determine for and by herself—and not at the command of other states—the fundamental issues relating to a nation state’s existence. (Sovereignty is treated in a different format under the concept of sovereignty & the state in chapter 7, section 7, Page 281.)

6. Law and legitimacy

The word legitimate means lawful, proper, and conforming to a standard. In political science, legitimacy is the popular acceptance of a governing law or régime as an authority. Whereas “authority” denotes a specific position in an established government, the term “legitimacy” denotes a system of government – wherein “government” denotes “sphere of influence”. Political legitimacy is considered a basic condition for governing, without which, a government will suffer legislative deadlock(s) and collapse. In political systems where this is not the case, unpopular régimes survive because they are considered legitimate by a small, influential elite.62 Political legitimacy is a difficult concept to define because while it is used to describe actions undertaken by political actors that are widely regarded as lawful and proper, such actions may be considered legitimate by one group and not by another. In the heydays of the Palestine Liberation Organization PLO, the west regarded Yasser Arafat, the PLO and his ‘state of Palestine’ as a ‘terrorist organization’ and having no legitimacy over Palestine respectively. In turn, he regarded the state of Israel as a renegade and land grabber deserving of utter destruction. When the west accepted him as legitimate, he addressed the United Nations and gained legitimacy in the West and in the middle-east region. Legitimacy is thus created by a sufficient degree of common consent and agreement. Compliance with legal rules or procedures may help to confer legitimacy, but the effect will be conditioned by the perceived legitimacy of the rules themselves in the circumstances of the time. Legitimacy may be attributed to governments, states, and political acts. ‘One man’s terrorist is another man’s freedom fighter’. If a government is overthrown by a rival political group, in a coup d’état this may be described as an illegitimate action, since it violates the legal constitution of the country. But if the action is supported by the majority of the people it purports to govern, and the people recognize the new government, it acquires legitimacy. Again, even if the people do not support the coup d’état, if the military junta succeds in securing power, legitimacy albeit grudgingly, will be accorded with immediate effect – because ‘only a mad man will challenge a man with a loaded gun’ – by: the late Rt. Hon. Dr. Nnamdi Azikiwe, the first President of Nigeria and the Owelle of Onitsha. ‘Zik’ (as he was fondly called) also proposed Diarchy (a mixed government of the military and civilians) to ensure legitimacy, since at the time,

62. Dahl, Robert A. Polyarchy: Participation and Opposition (pp. 124–188). New Haven (Connecticut) and London: Yale University Press, 1971

the various juntas demurred at the prospects of leaving power. States themselves may acquire legitimacy through diplomatic recognition by other states or international organizations. Very different varieties of formal constitutions may acquire generally recognized legitimacy. The United Kingdom’s constitution is one of the oldest in the world and regarded as legitimate, although the constitution is not set forth in a written legal document, as is, for example, that of the United States and Nigeria.

7. Law and freedom

Since antiquity, Law and freedom (i.e. liberty) meant national freedom; slavery was considered a necessary institution of society. Liberty in medieval times related primarily to social groups seeking to wrest certain privileges from the sovereigns against whom they contended for power. This kind of struggle resulted in the Magna Carta, imposed in the 13th century on King John of England by a group of barons; the document has great significance in the progress of human liberty. As the Middle Ages came to an end, the Renaissance raised problems of intellectual freedom, challenging the established dogma of the Catholic Church; later still the Reformation further promoted ideas of religious freedom and freedom of conscience. The English parliament adopted the Bill of Rights in 1689, establishing representative government in England. In the U.S. after The American War of Independence, the people accepted the Declaration of Independence issued by the American revolutionaries which proclaimed their freedom from British rule. The second event was the adoption of the American Constitution with its ten amendments, known as the Bill of Rights, the Constitution established and guaranteed of civil rights. The French Revolution of 1789 destroyed the feudal system in France and established representative government. From the French Revolution came the Declaration of the Rights of Man and of the Citizen, which served as a model for most of the declarations of liberty adopted by European states in the 19th century. With respect to individual liberty in the modern era, the problem has been one of preserving and extending civil rights, such as freedom of speech and freedom of the press. As nations grew in size and social complexity, governments claimed greater powers to restrain individuals and groups, extending these powers over wider spheres. Menaces to liberty arose in the first half of the 20th century in the form of the totalitarian governments of Italy, Germany, and Spain. In these countries civil liberties were destroyed, the rights of the individual were completely subordinated to the requirements of the government, and those who did not agree with these policies were terrorized into submission. Freedom was restored in Italy and to West Germany (now part of the united Federal Republic of Germany) at the end of World War II, and to Spain in 1975, after the death of the Spanish dictator Francisco Franco.

In Nigeria, the clamor for human rights dates back to the colonial days. This was prior to the attainment of independence in 1960. There was a need to introduce some elements of human rights. At that time, there was mounting pressure arising from agitation for self determination and governance by Nigerians. The rising ethnic and minority tensions, the heterogeneous, multi-ethnic and tribal configuration of the country – made the colonial government jittery. Again, the minorities (especially from the then ‘COR states’ i.e. Calabar Ogoja Rivers) – present day South-South zone, demanded the creation of more states. In order to allay their fear and apprehension of possible domination by the major tribes (i.e. Hausa/Fulani, Ibo and Yoruba), a minorities Commission was set up in response (by the colonial office in London) which recommended the entrenchment of fundamental rights provision instead of the creation of states for them. Subsequently, fundamental rights provisions were included in the independent Nigerian constitution of 1960. These rights were maintained in subsequent constitutions – the 1960, 1963, 1979, 1989, 1995 and 1999 – inclusive of the constitution(s) suspended, modified, promulgated and amended by the various military juntas after the July 1966 coup. These rights are the rights: to life, to the dignity of the human person, to personal liberty, to fair hearing etc. All these rights constitute Nigeria’s ‘Bill of Rights’ – all in chapter IV of the 1999 constitution. The drafters of the 1999 constitution also included fundamental objectives and directive principles of state policy which enumerated governmental obligations to citizens with objectives: political, economic, social etc.

E.g. Social objective:

  • 17.- (1) The State social order is founded on ideals of freedom, Equity and Justice

– Nigerian 1999 Constitution:   Cap II s.17 (1)

8. Law and contract

An objective of law is to provide a platform for contracts. Law and contract are conterminous with each other. Contract in law is an agreement that creates an obligation binding upon the parties involved. A contract is an agreement in law. It is an agreement which the law will enforce and be fully aware or cognizant of. The law will recognize a contract as affecting the legal rights and duties of the contending parties to a contract. A contract is a promise or a set or series of promises that the law will enforce. Parties to a contract are enjoined to ensure observance of laws and rules of engagement. A contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. Every citizen of Nigeria has freedom of contract – to engage in any legal – (established by or founded upon law or official or accepted rules) and lawful (conformable to or allowed by law) – economic activity as enshrined in the 1999 constitution of the Federal Republic of Nigeria. Thus, a contract is said to be valid if it is valid under the law. It is also a set of promises the law will enforce.63 Detailed treatment of law of contract is beyond the scope of legal method – suffice it to say that parties wishing to contract (formation of a contract) must satisfy certain conditions at law – as follows:

Elements of a valid contract

  • Offer
  • Acceptance
  • Consideration
  • Intention to enter into a legal relationship

63. Prof. I.E. Sagay, Nigerian Law of Contract, Spectrum Books Ltd., 2nd ed., Ibadan, 2000, p.1.  .  [Citation: Treitel, The Law of Contract (5th ed.., 1979), p. 1.]

Tobi, J.C.A. defined a contract as an agreement between two or more parties which creates reciprocal legal obligations to do or not to do particular things.64 For a contract to be valid in law there must be:

  • Intention to contract
  • Mutuality of purpose

Lawyer zoneIt is pertinent to mention here that not all agreements will be enforced by law. Some of these kinds of unenforceable agreements are: social and domestic/family agreements and the courts in Nigeria will not accept (except in special cases) to enforce an agreement unless it is supported by consideration.  All citizens of Nigeria can and may participate in legal economic activities – that is contractual economic activities as enunciated in the 1999 constitution. There are different and varied types of contract and some of them are as follows:

  • Bilateral contract
  • Consensual contract
  • Construction contract
  • Contract for sale
  • Blanket contract
  • Conditional sales contract
  • Collateral contract
  • Gratuitous contract
  • Fixed-price contract etc.

Freedom of contract is guaranteed.

E.g. Economic objective:

  • 16.- (1) (d) without prejudice to the right of any person to participate in areas of the economy within the major sector of the economy, protect the right of every citizen to engage in any economic activities outside the major sectors of the economy.

– Nigerian 1999 Constitution:   Cap II s.16 (d)

9. Law and economics

One objective of law is to provide the enabling impetus for economic activities to thrive in the society. Law and economics is also called the economic analysis of law. Economics is the branch of social science that deals with the production, distribution and consumption of goods, services and their management. Economics is also a theory of commercial activities such as the production and consumption of goods. The relationship between law and economics had always existed in tandem since the emergence and postulation of theories and concepts on legal and economic philosophy. Law and economics is a modern discipline that traces its formal origin as an academic discipline to – circa 1979.

64. Prof. I.E. Sagay, Nigerian Law of Contract, Spectrum Books Ltd., 2nd ed., Ibadan, 2000, p.1.

Law and economics is a new discipline advocating the economic analysis of the law, whereby legal rules are subjected to a cost-benefit analysis to determine whether a change from one legal rule to another will increase or decrease allocative efficiency and social wealth. The apparent co-habitation of law and economics can de deduced from –

  • Macroeconomics: this is the branch of economics that studies the overall working of an economy. Macroeconomics has a strategic position in the economic and fiscal policies of the Nigerian federal government with regards to budgeting, fiscal control, money supply etc. All these aforementioned economic terms bear down directly on good or bad governance, sound or unsound fiscal policies and the economic management and direction of the Nigerian economy. This refers to what specialists call political economy of the country. It is well stated under the economic objectives in the fundamental objectives and directive principles of state policy as follows:
  • 16.-(a) harness the resources of the nation and promote national 

                 prosperity and an efficient, a dynamic and self-reliant economy;

                                     – Nigerian 1999 Constitution: Cap 16 s. (a)

Law and economics has its origin in the antitrust policy of the U.S. government in the 70s. It quickly spread worldwide and the Nigerian government imbibed it for the purpose of giving the nation economic direction by using legal tools to further economic development. This discipline is employed to explain and interpret a variety of legal issues. The Federal government through lawgiving controls economic activities which include policies that raise capital and labor output by increasing the incentives for citizens to produce goods and services. Law and economics regard this as supply-side economics which has a U.S. origin too. The government does this by enacting laws (enactment) which are found in statutes, enabling acts or clauses, ordinances, and special acts like the sale of goods act, law on taxation, the hire purchase act etc. These laws constitute a set of legal rules or principles or laws which are coded (written down). The 1999 Constitution provides for the protection of citizens in the lower economic and social class or strata and also makes provision to protect the countries national economy from being hijacked by a few people with stupendous wealth and/or foreign conglomerates as follows:

  • 16.-(c) “that the economic system is not operated in such a manner as to permit the concentration of wealth or the means of production and exchange in the hands of few individuals or a group; and…..”            

– Nigerian 1999 Constitution: Cap 16 s. (c)

10. Law and its breach

Breach is a failure to perform some promised act or obligation. It is an act in disregard of laws. A breach could be a transgression, trespass, breach of due care, duty, promise, trusts, warranty etc. Law and its breach is when the law makes provision to remedy for violation and dispense pecuniary compensation for losses to plaintiff because of the failure of the defendant to perform some promised act or obligation. Breach is also a violation or infraction of a law or obligation. Breach of contract is part of common law – and law and its breach is a component of the objectives of law. Breach of contract is an act in disregard of relevant laws and rules or promises made by one of the parties to a contract. Breach of contract is a breach of a legal duty; failure to do something that is required in a contract – by law. The law imposes an obligation on all parties to take reasonable steps to mitigate losses that may be caused by a breach of contract. This contention will lead us to ‘discharge of a contract’ which means that the contractual relationship between the two parties has come to an end and the parties are freed from their obligations to each other thereafter. The apparent relationship between law and its breach is that in the absence of the law, contractual agreements will be broken with impunity by unscrupulous individuals, corporate entities and organizations and even the government and public officials. This will not augur well for the business community – thus economic activities will be greatly jeopardized and the economy will be hit badly. The law makes provisions which constitute remedies, penalties and compensation and damages for plaintiffs against defendants who breach contractual agreements. There are many other forms of breaches apart from contractual breaches, which the law frowns on. A detailed discussion of this topic is beyond the scope of this book and legal method. However, find a list of some breaches:

  • Anticipatory breach
  • Breach of the covenant of warranty
  • Breach of promise
  • Breach of trust
  • Breach of warranty
  • Material breach
  • Partial breach
  • Breach of duty
  • Breach of arrest
  • Breach of close (a common law trespass)
  • Breach of covenant
  • Breach of loyalty
  • Breach of the peace

Finally, the relationship between law and its breach can best be explained by this definition of breach: – breach is the violation of a law, right, duty or obligation by omission or commission, e.g., failure to perform according to a contract.

11. Law and punishment

Law and punishment is closely related to social control. Punishment is a sanction – such as a fine, penalty, confinement, sentence or loss of property, right, or privilege – assessed against a person who has violated the law. Legal jurists have written treatises on law and punishment as it where.

  • “Punishment in all its forms is a loss of rights or advantages consequent on a breach of law. When it loses this quality it degenerates into an arbitrary act of violence that can produce nothing but bad social effects”

–        Glanville Williams

Criminal Law 575 (2d ed. 1961).

     Types of Punishment

  • Capital punishment (death penalty)
  • Collective punishment
  • Corporal punishment (infliction of physical injury on convict)
  • Cumulative punishment (increase in severity of punishment to convict for same offence)
  • Deterrent punishment (intended to deter offender and others)
  • Excessive punishment (not justified by the gravity of offense)
  • Cruel and unusual punishment (punishment too severe for the crime and prohibited by law e.g. torture or degradation)
  • Verbal punishment
  • Detention (e.g. a student must stay in school after others have gone home)
  • Discipline, Correction
  • Economic strangulation (punishment of a group, e.g. economic strangulation of the Jews by the Nazi Party circa 1930s before World war II)
  • *Imprisonment (putting someone in prison or jail lawfully)*
  • Self-punishment (inflicting punishment on yourself)
  • Stick (threat of a penalty; “the police so far is all stick and no carrot”)
  • Penance (voluntary self-punishment in order to atone for wrongdoing or religious penitence)
  • Non-judicial punishment (military law – under code of military justice)
    • *In the U.S. especially in California, the government built a no-escape maximum prison considered the most secured (in the world) within a huge forest for the worst criminals in the U.S. – the most deadly gang members of Los Angeles’ gangland’s organized crime. Despite incarceration in this prison, the gang leaders run their operations efficiently, order ‘mafia-like hits’ and gang wars in far away Los Angeles from inside their cells, through coded messages to the outside world. They do serious high crimes and earn time to go to this prison. To these gang warlords, prison is not a deprivation but a privilege. It remains to be seen whether imprisonment is a deterrent or a place for criminals to retire in comfort – especially in the U.S. with their state of the art correction system.*
    • – LOCK DOWN, a documentary: National Geographic   .  A U.S. cable channel.

12. Law and morality

Law and morality are concerned with how the law views the distinction between good and evil or right and wrong; right or good conduct. This legal view of morality gives room for motivation based on ideas of right and wrong. The question is whether law should abandon the concept or theory of morality and operate strictly and unabashedly in favor of the strict rules of legality as applicable in law. Should the law be applied strictly according to express or implied provisions of statute, administrative law, criminal or civil laws? – Should law on taxation be strictly applied to a person of meager means? – E.g. a petty trader – considering the heavy and immorally high taxes imposed arbitrarily by some local government area councils in Lagos, Port Harcourt, Kano etc, for instance. What role should law play in the philosophical study of moral values and rules of legality. Should moral philosophy be part of judicial decisions? Some legal thinkers think so – others insist that to allow that will undoubted limit the efficacy of law as the blind lady with the weighted scales and the sword dispenses blind justice. They assert that equality before the law is an essential element of jurisprudence – ethics in law is an aberration. These defenders are of the contention that jurisprudence is the branch of philosophy concerned with the law and the principles that lead courts to make the decisions they do. Again, should judicial decisions be infused with moral questions and judgment? Or should the law be strictly applied as intended by the lawgiver? Moral principles, ethics and standards are preconditions for any society. The dearth of morals etc. will expose the society to lawlessness, hedonism, indecency, irreligion and impiety, general immorality etc. Every society must have its own ethics and moral standard rules of engagement and existence. In a society, there must be conformity with recognized rules of correct conduct otherwise the society will either implode or degenerate. Morality as a principle or concept is a relative term with regards to the individuality of group ideas about right and wrong, good or bad, morally correct and morally reprehensible. Societies attempt to create, establish and maintain core values, ethics, rules and regulations and accepted standards of behavior. Any breach or infraction is regarded as anti-society, anti-social and seriously frowned upon through some of the following steps:

  • Condemnation
  • Confinement
  • Banishment
  • Ostracism
  • Reprimand
  • Censure
  • Imprisonment etc.
  • Flagellation etc.

Undermining moral intergrity is the antithesis of law; bribery and corruption are parts of of this antithesis. The Advanced English Dictionary, version 3.0 defined Corruption as inducement (as of a public official) by improper means (as bribery) to violate duty (as by commiting a felony). In the U.S. of the 30s for instance, there was so much corruption in City Halls especially in New York and Chicago. Al Capone (a Mafiosi) was above the law. He ran Mafia crime syndicates involved in narcotics, bootlegging, prostitution, protection and loan shacking rackets. With this loot, he controlled the city and doled out bribes and payoffs to judges, city and Police officers without any challenge. A new incorruptible law officer (Elliot Ness) formed a band of incorruptibles called

‘The Untouchables’ (ie. gangbusters) – they fought corruption to a standstill and brought back law and morality.

  • Crime & Punishment: a documentary on Crime & Investigation Network (CI channel) a U.S. cable network.

13. Law and Women

Customary laws have provided a framework for the exclusion of women from public life.  Women were exempted from the professions and from other forms of employment. The social structure placed women’s role in the home and subordinated their position to that of fathers and husbands. Women did not have an autonomous legal status, rather their position was subsumed within the family unit and their interests identified with the interests of the family. Through the course of this century, this position has gradually changed. Women have been allowed near autonomy as individuals. The barriers to employment have been principle of equal opportunity. Coinciding with these changes, enormous changes have occurred in social structures in this century and women now participate in the workforce. Whereas once, women were subsumed within the family unit, there has been a loosening of the ties which bind people together in marriage simultaneously with a marked increase in the legal regulation of the employment relationship in the advanced world. In the U.S., the changes in social structures have in turn produced new dilemmas for the law makers in determining the extent to which employers should be required to accommodate family commitments as a cost of employing staff, the way in which property should be allocated on marriage breakdown, and many other social issues associated with the change. At a time when society is in such a stage of transition, and when so many aspects of male-female relationships are being renegotiated, an important aspect of the challenge of inclusion is the need to engage in a continual examination of our laws and policies to ensure that a fair balance is being struck between the rights of men and women in different areas of social and marital life.65 Another aspect of the challenge is to ensure that laws which are apparently neutral on their face do not have a discriminatory impact in practice, and do not contain implicitly masculine assumptions. Changing laws is, however, only one dimension of the challenge. More difficult is changing attitudes. The structures of business and the professions do not readily accommodate the needs of women as the primary caretakers of children and other family members. Consequently, women continue to pay a disproportionate share of the costs of caring. Attitudes also need to be changed among lawyers and judges in order to eradicate example of discrimination and gender insensitivity in the practice of the law. The process of cross-examination in relation to complaints of domestic violence or sexual assault can be particularly alienating, as some defense lawyers seek to discredit the testimony of women by any means possible. They are aided and abetted in this by the adversarial system, which is predicated on the basis that each side should be able to present its case in whatever way it sees fit without much interference or control from the Bench.

65. Marriage Act 1990 vol. XI no. 218

While judges have the power to disallow unfair questioning and to prohibit the harassment of witnesses, they are often reluctant to interfere with the manner in which the defense presents its case. This latitude given to defense lawyers in criminal trials is not infrequently at the expense of female witnesses. Finally, one of the objectives of law is to protect women’s rights.

In the 19th century, American and British women’s rights — or lack of them — depended heavily on the commentaries of William Blackstone which defined a married woman and man as one person under the law. Here’s what William Blackstone wrote in 1765:

66“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage….”

66. Source: William Blackstone. Commentaries on the Laws of England. Vol, 1 (1765), pages 442-445. [womenshistory.about.com/od/laws/Laws]

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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

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

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