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04 Jan

JURISPRUDENCE 1.5 LAW AND JUSTICE

Topic 3: LAW AND JUSTICE.

Dias described justice as “vague”. Professor Akin Oyebode notes that justice is relativist and varies from time to time and person to person.

Jonathan Swift noted that “wonders shall never cease… that is why justice varies from person to person”. Justice, like beauty is in the eyes of the beholder. Chief justice Ademola in Isiyaku Mohammed V Kano Native Authority[1] remarked that justice must “manifestly” be done. Meaning that the court should ask whether a reasonable man who was present at the trial would believe that justice has been done.

Topic 3.1 What is Justice?

Justice is an elusive idea. Laird sees justice as all commendable qualities of moral character.

Plato (429-347): in The Republic, noted that a State must possess four cardinal virtues viz; wisdom, courage, discipline and justice. He notes that justice is when every member of the society does what naturally fits him. A State where there is harmony among the classes of citizens. He sees the just polity/State as that State where the philosopher rules. He says, “until philosophers rule as kings…. Cities would have no rest from evil”. He notes that since philosophers love truth and reason, they shall apply same to rule their subjects and advance the society. He nevertheless concludes by saying that a country ruled by tyrants (though worse than a country ruled by philosophers) is better than a bad democracy.

Cicero in De Legibus (52BC) said that law is the highest reason implanted in man. Geoffrey C. Hazard Jr noted that justice is the avoidance of injustice. To Karl Popper, justice is the equal treatment of Citizens by the law and courts. Dr F.N. Ndubuisi notes that the State is just if the ruler rules, the worker works and the slave slaves. According to Aristotle (a student of Plato 384 BC to 322 BC), Justice is a virtue. Aristotle in Nichomachean Ethics notes that justice is fairness. Justice is the chief of virtue. An unfair man is unjust… a fair man is just. He notes that the state should seek to achieve “the good” based on freedom, autonomy and self-government.

Aristotle categorises justice into:

  • Natural Justice: which requires an impartial judge to hear both sides. Couched in the principle: Nemo Judex in causa sua and audi alteram partem.
  • Legal Justice: Resolution of dispute by the court according to the principles of law concerning the case.
  • Formal/Procedural Justice: notions of equality before the law.
  • Conventional Justice: this is justice which varies according to time and place. Aristotle said that justice in Rome is not the same as justice in Athens.
  • Cumutative Justice/Refractory Justice: In a “polis” (Polity/State), when societal values are breached, he said that the “equilibrium” (balance) is disturbed. The person that disturbed the equilibrium would have to pay for it… This puts the society back to equilibrium. In essence, crime must not go unpunished.

Aristotle noted that rule of justice is the same thing as rule of reason[2]. He noted that justice is treating equals equally and unequals unequally. He concluded in his work that to attain justice, we need JUST ACT, JUST RULE AND JUST MAN.

John Rawls. A. in Theory of Justice (1972) notes that justice requires the following:

  • The maximisation of Liberty: subject only to constraints necessary to protect liberty itself.
  • Equality for all.
  • Fair equality of opportunity.

John Rawls propounded the concept of “redistributive justice”. He advocated that the law should be used to address the social inequality[3]. He maintains that justice is about providing food, housing, clothing and other necessaries for the populace. Where the government neglects to address the concerns of the people, a riot, protest or even revolution may ensue. This is evident in the various protests like fuel scarcity protest of Jan 2015. Ben Murray Bruce in The Silverbird Man of the Year Awards Event 2015 declared that “a time is coming when the poor would have nothing else to eat but the rich”.

Jeremy Bentham, sees justice as the greatest happiness for the greatest number of people. This is referred to as utilitarianism. Differences between Bentham and Rawl’s Theory.

– Utilitarians can allow one person to suffer provided it is for the greater benefit but John Rawls Theory would not support that as everybody should be equally treated and have equal fair opportunity.

– In utilitarianism, liberty and political rights can be limited provided it promotes the greater well-being… but Rawls advocates for equal maximum liberty.

– Utilitarians look at Welfare while Rawls theory is connected with liberty, equality and opportunity.

A.V Dicey: showed the world what he regards as justice by formulating his “Rule of Law” Theory. Under this theory, he propounds that there must be:

– Supremacy of the law: This is seen in Section 1 of the 1999 Constitution. E.g. in In U.S V Nixon[4] the President of the United States was ordered to submit an incriminating tape and he obeyed. In Nigeria, most of our politicians flout court orders and judgment. E.g. Recently, former president Olusegun Obasanjo was issued a restraining injunction which prohibited him from publishing “My Watch” which contained some sensitive issues that may determine the 2015 elections. He still went ahead to publish it and nothing happened.

– Equality before the law[5]

– Independence of the judiciary so as to ensure equality and apply the law impartially[6].

NEEDMUS: said that rule of justice is analogous with rule of equality[7]

Lord Atkin in Ambard V Attorney General for Trinidad and Tobago, noted that justice must be allowed to suffer scrutiny and respectful comments of ordinary men.

Prof Perelman in The Concept of Justice and the Problem of Argument. Posited that the rule of justice means equal treatment of those essentially similar. He noted six issues which we must use in appraising justice:

  • To each the same thing: We are all born equally, live unequally and die equally.
  • To each according to his merit: ground rules should be made open to the players and then the best man should win.
  • To each according to his works: This is applied mostly in the workplace. People should be promoted based on their achievements, productivity and hard work.
  • To each according to his need: according to communists and socialists, justice is meeting the needs of members of the society. The problem is that man would always acquire more than he needs. Also it is impossible to satisfy people’s needs.
  • To each according to his rank: people need to have ranks so that those below would aspire to attain a higher rank[8]
  • To each according to his legal entitlement[9]: Chapter IV of the 1999 Constitution grants certain entitlements to people.

Topic 3.2: Justice according to the law or law according to justice?

Lawyers’ law is justice according to law because justice is indeterminate. While the jurists’ law is law according to justice. Former U.S President James Madison noted that “If men were angels, no government would be necessary”. This means that government and the law cannot be avoided since man is no angel. The State ensures that obligations are enforced through the law. Therefore ensuring justice through the law. Similarly, Oliver Wendell Holmes notes that law is in fact what the courts would do. Roscoe Pound in Justice According to the Law noted that justice according to the law is more certain and law is needed to deal with various complexities. In Josiah V State, Oputa JSC noted that justice is a three way traffic. Justice for the appellant accused of a heinous crime of murder, -justice for the victim of the murder whose blood is crying and justice for the society at large for the desecration of its morality[10]. Thomas Hobbes noted that initially man existed in the state of nature where life was short, nasty and brutish. Hence laws were needed to regulate and entrench justice. This led to a social contract which led to a society governed by law. Chief Justice Marshall in Marbury V Madison notes that the government of the United states shall be the government of law and not government of man.

Some others posit that there can be justice without law, they advocate for law according to justice. Karl Marx believes that mankind can progress to an age where justice would be achieved without the aid of a State or laws. Francis Beacon noted that no universal rules can be made, as both situations and men’s characters differ. Francis Suarez noted that an unjust law is no law. He further posits that law must be intended for the good of the community and what is commands must be practicable. Yvonne Malan and Paul Cillers note that justice exists outside/beyond the law. It would be application of a rule to produce desired results. Professor Akin Oyebode is of the opinion that law should be according to justice. He posits that judges should adopt a more liberal or purposive approach in the interpretation of the law and place justice over technicalities[11]. The essence of law is to promote justice in the society. Naturalists maintain that without justice, there is on law. Lord Denning in Gouriet V Union of Post Office Workers and Others[12] noted that “be you ever so high, yet the law is above you”. Lord Denning once remarked that it is better to have a bad law and good judges. Because, through creative judgment, they can obviate the bad law.

The problem with justice is that it is too unpredictable and varies based on perspective. Justice cannot even be defined, it can only be felt or identified. The law is more predictable and formal.

The introduction and growth of equity seems to have put the question to rest. As the laws are now being applied according to justice. Equitable Reliefs: like doctrines of part performance, secret trust, and so on are provided to do justice to each case. These have been applied in numerous cases like: Walsh V Lonsdale, Obanor V Co-operative Bank Ltd, Udolisa V Nwanosike, Errington V Errington amongst others to prevent fraud and do justice to each case.

Also, the Repugnancy doctrine[13]: This Repugnancy doctrine can be found in the various High Court Laws. See Section 26 (1) HCL Lagos and Section 14(3) (now 18(3) EA 2011) of the Evidence Act. Which provides that for any custom to be relied upon, it must not be contrary to natural justice, equity and good conscience. Nor should it be contrary to public policy or any existing law. This repugnancy doctrine was upheld in Oke Olanipekun Laoye V Amao Oyetunde[14]: Lewis V Bankole[15]: Eshugbayi Eleko V Government of Nigeria[16] and a host of other cases. In Edet V Essien[17] Care CJ disallowed a custom which enabled a husband to keep the children of his wife by a lover until the dowry was refunded to the husband. On the repugnancy doctrine. In Dawodu V Danmole[18] the Yoruba Idi-Igi custom of inheritance was faulted on this ground. See Salako V Salako[19]. This repugnancy doctrine is arguably of an alien nature. Remember that upon the cession of Lagos to the British in 1861, certain laws were introduced to govern the territory. As the British began to gain more grounds in Nigeria, they saw some of our laws as barbaric. Moreover, since our custom is largely unwritten, they saw the need to introduce their laws. Professor Amaechi notes that this repugnancy doctrine amounted to a superimposition of the English law over our traditional custom. Positing that our custom should NOT be judged/appraised by an alien with an alien perspective. It should be left for the community that is practicing the custom to continue applying, dilute or reject the custom. In Alhaji Mohammed V Knott[20], Alhaji Mohammed aged 26 married a Nigerian Girl of 13 years. When they moved to England, the propriety of the marriage was questioned and it was alleged to contravene Section 2 of the Children and Young Persons Act 1963 holding that the girl was exposed ot moral danger and the marriage was repugnant to a decent-minded English man or woman. On appeal however, the court held that from the peculiar circumstances, the marriage was valid. Parke C.J proposed that the Nigerian custom of the couples should not be judged from the English perspective. Both parties were bred and brought up in a community where marriage to a young girl was regarded as normal.

 

[1] (1968) 1 All NLR 427.

[2] This can be validated by various laws which apply the “reasonable man’s test”.

[3] This is evident in progressive taxation (where the percentage of tax increases as salary increases. He who earns more pays more. This seeks to breach the gap between the rich and the poor), CGT, Inheritance Tax.

[4] 418 U.S. 683 (1974)

[5] See Section 42 of the 1999 Constitution which prohibits discrimination.

[6] See Section 231, 251, 256, 261, 266, 271 of the 1999 Constitution which deals with the appointment of the judges in a relatively impartial manner.

[7] Professor Oyebode queried this on the basis that people are not the same and equal treatment may not necessarily result in justice.

[8] In my opinion, this is similar to point 3 above.

[9] In my opinion, this should have fallen under point 2 above.

[10] He is trying to say that it is not easy.

[11] This is evident in The Fundamental Rights (Enforcement Procedure) Rules 2009 which has provision that enable access to court… Order 1 Rule 1,2 and 3 mandating that the court enhance access to justice for all classes of litigants. Most especially in human rights litigations. The procedure places premium over substantive justice than procedure (specifically Order 1 Rule 2(3h)). Human rights suits takes priority under the FREPR 2009 and the fees for filing least in all the cases.

[12] (1977) 1 All ER 696.

[13] This repugnancy doctrine should also be discussed when answering questions on morality in the exams.

[14] (1944) A.C 170 at 172 and 173.

[15] (1909) 1 N.L.R 81.

[16] (1931) A.C. 662.

[17] (1932) II NLR 47

[18] (1962) All NLR 702.

[19] (1965) LLR p 136.

[20] (1968) 1 Q.B. 1

Isochukwu

Quite eccentric really

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