JURISPRUDENCE 2.1 NATURAL LAW I
NATURAL LAW
Looks at the ideal. What naturally ought to be. Although positivists hold the opposite view that law is what the lawmaking body has made… free from external standards.
A summary: Sheikh Anti Diop in his Ph.D. thesis titled: the African Origin of Civilization: Myth or Reality? Makes us realise that the West was not the first to reason. Same position was maintained by Prof. BCM James in his book the stolen Legacy where he said that what we naturally ascribe to Greece were actually stolen from Egypt.. Also Chancellor Wiliams book: Destruction of African Civilization, Jerome Bene Jr, too. Sheik Anti Diop noted that the West came to Africa to steal our cultural heritage.
Samuel Johnson was heard to have said that “almost everything that sets us above savages has come to us from the shores of the Mediterranean”. This has received severe criticisms.
EGYPTIANS: Their civilization was centred around the River Nile. They are said to have invented Agriculture, sowing, reaping, irrigation, perfumes, medicine, preservation of the dead (embalmment), the art of writing, thinking about law and justice and the first people to conduct heart operation, first university (Alaxa University estabolished in 978), the first to conclude a treaty in 1296 BC, formulators of the concept of sanctity of contract. Their life was centred around their Pharaoh being a divine being half man-half God. They believed he would never die naturally (this is why a pyramid is constructed where he would be buried with slaves, gold, silver and wealth) Egypt was a slave owning society That Pharaoh was the son of Ra (the sun god) The Egyptian Jurisprudence can be seen as couched in such a way as to preserve their state. Their Jurisprudence can be derived from three sources namely:
- The Egyptian book of the dead: which is a book of magic, formulae and practices for burying the dead.
- Text of the pyramids: the pyramid is taken as the final resting place of the pharaoh.
- 42 books of Hermes: Spoke about the whole aspect of Egyptian priests.
Their well structured system was toppled with the slave revolution ran by Alexandra the Great. He invaded pyramids, exhumed and took artifacts and so on.
MESOPOTAMIA: otherwise called Babylon. Thrived on the River Tigris and river Euphrates. It was a slave owning and egalitarian society. Hammurabi who lived from 1792-1750 BC had a formulated a code which is called the Hammurabi Code explaining 282[1] laws[2]. This code gave the first explicit insight to proportionality. E.g. the code says; an eye for an eye, a tooth for a tooth. Although some punishments were disproportional[3]slaves were discriminated against. E.g. a slave that lustfully looks at his owner’s daughter would have his ear cut off. A slave that talked back at his master would have his tongue cut off, Kill master’s animal? Sentenced to death. A freeman that kills another’s slave would just pay damages… in essence, the law sought to make slaves know their place. The code starter Patriarchal law i.e. male supremacy. That a woman should always sbe subject to the comman of a male. Whether father, brother, husband and so on. Sha be under a male authority. In Babylon therefore, natural law was used to maintain the equilibrium by justifying inequality.
INDIA: grew on Hinduism. The great river Ghandieons. The centre of their society is called the Dharma. Their religion of Hinduism forms the fundament of their philosophy of law which is reflected in the laws of Manu. Under this law, the Indians were divided into castes viz:
- The Brahmin: The highest caste. This caste is concerned with the religious.
- The Kshatriya: Defence
- Vaisya: Agriculture and Trade
- Chudra/Harijan/Sudra: they are to be concerned with the “uncomplaining service of the other three caste”. They were regarded as unclean and contaminated. They are seen as paying for malfeasance of their earlier life. Just like the Osu of Igboland.
The division was strict and people were advised not to violate class rules by upgrading their status. You are to marry within your caste. A violator would be reincarnated as a plaint or animal while a complaint person would be promoted to a higher class in the next world. In India, natural law was invoked to promote inequality. It was the belief that a 10year old Brahmin was superior to a 100 year old Chudra. That man’s act and experiences in one form would determin whether he would come back as a higher class, bird or plant. Penal consequences may include, mutilating one’s limb and walking in on direction till one drops dead, requiring one to throw himself in fire, go into the midst of a battle and expose oneself to the enemy. The King is to enforce penances and maintain the caste system. Vish
Neru (A Brahmin) sought to change this status quo and wanted india to be Egalitarian. Ghandi also fought to abolish the caste system. They should not be discriminated against because they did not choose the family they wanted to be born into. All humans are red blooded.Although laws have been enacted to abolish the caste system (just like the Osu Caste Law of 1956 Eastern Nigeria).
CHINA: The concept of Nirvana belongs to Bhudists. Attributed to Prince Goutama (500BC). He suggested that abstinence from wants would help us attain Nirvana which is next to perfection. Right living, Right Thinking and Right doing.
Fu-Tzu Confucius (551-479) and Motsu (479-381) both believed that china is at the centre of the universe. That Tien/Shanty was the chief god and earth was the mother. Tao means living naturally… simplicity, abstinence, meekness and so on. Confucius believed that only the most enlightened should lead. That leadership was by example. The Chinese started mandarin (meaning bureaucracy). They were the first to introduce and conduct country wide examinations to select the brightest and best into Civil Service (just like JAMB). Advocacy for propriety… that man lives according to what naturally is expected of them. This is encapsulated in the LiFa ideology. The Li is based on natural law. Li signifies propriety and obedience to what nature prescribes the Fa signifies force. When appraised from the angle of natural and positive law, li is natural law which ought to guide man through reason and morality while fa is positive law/legal force/physical cohesion. Fa is associated with the harsh rule of the Ch dynasty 200BC-1911. While Li is associated with Confucius himselfThat man ordinarily ought to be regulated by the Li, but it is when we want to be stubborn that the Fa comes into play. This is what is referred to as the LiFa antithesis which is the antithesis between moral force and physical cohesion.. Li has also been likened with and depicted as good while Fa has been likened with bad. This is likened to the Omo-luwabi and Odaju situation of the Yoruba. The former being well behaved while the latter being a deviant. David and Briedly maintain that the order of the world would depend on how men behave. That education and persuasion rather than authority or force should prevail. Confucius formulated the golden rule: do unto others what you will have them do unto you. Chu Siang or is it Shu Sung noted that too much law in a nation is a sign that it is about to perish. Prof Tsao noted that disputes should be submitted to human settlement, then to lii reason and lastly to fa law. In essence, conflicts are resolved by individuals yielding to one another. Confucius said that if people were led by laws, they would try to avoid punishment but have no sense of shame. On May 16th, the Chinese revolution led by Chi Ma Mau occurred. Faculties were closed down and professors of law were sent to plantations as lawyers were seen as social parasites.. Han Fei-tU or is it Chi Ma Mau? was the leader.
GREECE: (GRAECO-ROMAN HERITAGE OF NATURAL LAW): Greek philosophy is based on Mythology which is based on Pantheon the belief in a collection of gods and goddesses. At the head is the god of Justice-Zeus and the goddess of justice-Themes. Sophscles in Antiogone noted that the Natural laws of heaven are the unwritten, unfailing statutes of heaven. They are laws which transcends the society. The Greeks were pre-occupied with the concept of justice. That the natural law of the heavens guides/orders the world and the Nomos (laws) of the Polis(state) should try as much as possible to conform with the natural law of the heavens (logos). Such synchrony would result in cosmic harmony (Cosmos)… a situation where everything functions properly. Non-conformity would result in a chaos which would need divine intervention (Deus ex Machina). The purpose of law therefore is to set the cosmological balance right and maintain an equilibrium. The laws should reflect the laws of nature prescribed by God.
Pythagoras: lived 580-500 BC. He said that Justice is to be found in equality… that equality was tantamount to justice. Advocated the need for proportional reward and punishment. “justice is like a square number.. it gives back the same for the same and is the same multiplied by the same”. A disturbance in the social equilibrium should be paid for by an act of penance or compensation to the injured party. Restitution in intergrum. That law therefore seeks to redress the imbalances occurring in the society so that social equilibrium would be maintained.
Socrates 469-399 BC: usually referred to as the father of philosophy. Posited that justice is treating equals equally and unequals unequally. He said: man know thyself. Was of the opinion that an unexamined life is not worth living. He argued that moral excellence was a matter of divine bequest and is not learned/taught. He believed that ignorance is the reason for wrongdoing. Wrongdoers are ignorant. He noted that the only suitable person to govern is the philosopher. His dilemma/search started when a Delphi oracle pronounced that Socrates was the wisest man on earth. Socrates was perplexed as he believed he possessed no wisdom whatsoever. Socrates spent the rest of his life trying to refute the proclamation by the gods. He came up with his dialectic method wherein he approaches the so-called wise men (artisans, poets, elders, scholars and so on) for a discourse. Socrates realised that while these so-called wise men each man thought they were wise, they in fact knew very little and were not wise at all. He concluded that he was the wiser one since he was the only one aware of his ignorance. The prominent Athenians were of the opinion that he made them look foolish. Therefore they turned against him. He was subsequently found guilty of corrupting the minds of the youth of Athens and sentenced to death by drinking a mixture containing poison hemlock. Although he believed he would be better off dead as this would give him and opportunity to get the much needed clarifications from the gods on certain issues that troubled him. He even refused an escape opportunity noting that an escape would amount to breaking the state’s social contract.
Plato: 427-347 BC. A student of Socrates. Originator of “the Academy”. His academy was a school where philosopher and students were engaged in an unending crusade for truth.. His philosophy was that “he who sees with his eyes is blind”. Meaning that there is more to life than catches the eyes. That the physical is just a shadow of the ideal form. That enlightened men who decipher the ideal with divine contemplation (philosophers) should rule (philosopher-king). Plato in The Republic noted that “until philosophers rule as kings… cities will have no rest from evils… nor I think will the human race[4]. That society consist of those that play the productive, protective and governing role. He posits that a country which is ruled by a tyrant is better than a bad democracy where all the people are irresponsible. That goodness is wisdom. Similarly, Okonzua posits that he most erudite and intellectually superior should rule. To Plato, justice is an ethical principle of conduct which is subsumed under the concept of human virtue which is equated with knowledge. To him, those that disobey are ignorant. His idea of propriety.
Aristotle: 384-322 BC. In his “Nichomachean Ethics”. He was a student of Plato and a teacher of Alexander the Great. He noted that man by nature is a political animal. He was of the opinion that to achieve the good life, one must live a balanced life and avoid excesses. Aristotle studied almost every subject possible at that time and made contributions in each field.
SOPHISM[5]: sophists were largely concentrated on teaching rhetoric and politics. Boasted of being able to prove that black is whitetranslated to sophisticated. The sophists espoused the relativistic subjective concept of natural law. They say god determines fate but they say your fate is in your hands. Some sophists include:
Heraclitus: 500BC, that the Polis rests on both the logos and Nomos. “wisdom is to speak the truth and act according to nature”.
Sophocles: in Antigone “it is incumbent for man to comply with the unwritten and unfailing statutes of heaven”.
Antipone: a sophist said that man is just if he maintains discipline and character irrespective of circumstance. (note what Hellenistic means).
STOICISM: they sought to universalise natural law rather than limiting it to city states. Emerged around 300 BC. Had among their leadership Zeno 350BC-250BC. The movement form polis to the cosmopolitan that led to stoicism. That natural law is based on reason and is universal. Since man has reason, natural law would exist wherever man is found. Rene Descartes noted that “to live according to reason is to live naturally” “I think, therefore I am”. A distinction between natural and human law. In essence, think globally but act locally.
The Greeks Produced Great Philosophers while Rome produced Great Lawyers.
ROME: Their law had 3 major categories viz.
Tome too had the twelve tables of Rome containing rules which were mainly ritualistic. Like thou shal not put gold on a corpse. Leat not women tear their cheek at a funeral. Cicero in De legibus noted that most of the roman codes were taken from the Greek Originals.
- Res: law of things.
- Actio: Law of action.
- Persona: Law of persons. To be a person, one had to be endowed with capacity. Capacity is the ability to possess rights and create obligations. The head of the family of the Roman Family (Pacta Patris Familia) had full rights and capacity. The capacity of women were diminished. Slaves came under res. Children could only enjoy capacity through their parents.
They were also slave owning sha. Roman law applies between and among Romans. i.e. citizens. A special magistrate (Preator Magistrate) was created for the foreigners. This magistrate applied Roman law by analogy (jus-gentium). Experts were referred to as juris consult. However Emperor Justina convened a conference of leading jurists to make a code that apply to both romans and non-romans. This resulted in the Justinian Code which applied irrespective of race, status or citizenship. This was predicated on the premise that since they were all rational beings (except slaves because they were regarded as a thing) law should apply to them. Code from Cicero 106-43BC it was noted “there is in fact a true law namely right reason which is in accordance with nature… applies to all men”. The introduction of a universal application of the law was one of the greatest contributions of the Romans.
The romans were problem solvers. They fashioned the different areas of law like tort and contract. This is why certain roman maxims are still reflected in our laws. (e.g. res ipsa loquitur, audi alteram partem, nemo judex in causa sua, ultra vires. Metropolis was borrowed from Rome. Metropole referred to the centre of the polis while colony referred to the periphery. Both make up the metropolis.
[2] Sir Henry Maine noted “the most celebrated systems of jurisprudence begins and ends with a code”.
[3] Section 1 of the code prescribed death penalty on anyone who unreasonably/unjustly casts a spell on another. Section 14 imposes death sentence on a person that causes a palace maid to leave the gates of the palace. If a man has broken into a house, the occupier can kill him and bury him in the house-Section 14. Though some sections were sensible like Section 126: if a man exaggerates his loss, he shall pay the difference. Some others focused on an eye for an eye, limb for limb-Section 195-199. A son who strikes his father would have his hand cut off-Section 199.
[4] At page 473.
[5] Are they also sophists? Protagoras: 490-420 BC. That virtue can be taught.
Gorgias 487-376 BC.
Thrasymanchus: that justice is nothing other than the advantage of the stronger.
